20804 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 55 and 71

[FRL 5183–1]

RIN 2060–AD68

Federal Operating Permits Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule; notice of

opportunity for public hearing.

SUMMARY: The EPA is proposing a new

subpart containing regulations setting

forth the procedures and terms under

which the Administrator will

administer programs for issuing

operating permits to covered stationary

sources, pursuant to title V of the Clean

Air Act as amended in 1990 (the Act).

Although the primary responsibility for

issuing operating permits to such

sources rests with State, local, and

Tribal air agencies, EPA will remedy

gaps in air quality protection by

administering a Federal operating

permits program in areas lacking an

EPA-approved or adequately

administered operating permits

program. Federally issued permits will

clarify which requirements apply to

sources and will enhance understanding

of and compliance with air quality

regulations.

DATES: Comments. Comments on the

proposed regulations must be received

by EPA’s Air Docket on or before June

26, 1995.

Public Hearing. A public hearing is

scheduled for 10:00 a.m., on May 30,

1995, at the address listed below.

Requests to present oral testimony must

be received by May 12, 1995, and the

hearing may be canceled if no speakers

have requested time to present their

comments by that date. Written

comments in lieu of, or in addition to,

testimony are encouraged.

ADDRESSES: Comments should be

mailed (in duplicate if possible) to: EPA

Air Docket (Mail Code 6102), Attn:

Docket No. A–93–51, Room M–1500,

Waterside Mall, 401 M Street SW,

Washington, DC 20460. The public

hearing will be held in the Waterside

Mall auditorium at the U.S.

Environmental Protection Agency, 401

M Street SW, Washington, DC 20460.

Docket. Supporting information used

in developing the proposed rules is

contained in Docket No. A–93–51.

Supporting information used in

developing 40 CFR part 70 is contained

in Dockets No. A–90–33 and No. A–93–

50. These dockets are available for

public inspection and copying between

8:30 a.m. and 3:30 p.m. Monday through

Friday, at EPA’s Air Docket, Room M–

1500, Waterside Mall, 401 M Street SW,

Washington, DC 20460. A reasonable fee

may be charged for copying.

FOR FURTHER INFORMATION CONTACT:

Candace Carraway (telephone 919/541–

3189) or Kirt Cox (telephone 919/541–

5399), U.S. Environmental Protection

Agency, Office of Air Quality Planning

and Standards, Information Transfer

and Program Integration Division, Mail

Drop 12, Research Triangle Park, North

Carolina 27711. Persons interested in

attending the hearing or wishing to

present oral testimony should contact

Ms. Susan Curtis in writing at the U.S.

Environmental Protection Agency,

Office of Air Quality Planning and

Standards, Information Transfer and

Program Integration Division, Mail Drop

12, Research Triangle Park, North

Carolina 27711.

SUPPLEMENTARY INFORMATION:

Comments

The EPA is unlikely to be able to

extend the public comment period. Two

paper copies of each set of comments

are requested. If possible, comments

should be sent in both paper and

computerized form. Comments

generated on computer should be sent

on an IBM-compatible diskette and

clearly labeled. Computer files created

with the WordPerfect 5.1 software

package should be sent as is. Files

created on other software packages

should be saved in an ‘‘unformatted’’

mode for easy retrieval into

WordPerfect. Comments should refer to

specific page numbers of today’s

proposal whenever possible.

Outline

The contents of today’s preamble are

listed in the following outline:

I. Background and Purpose

II. Proposal Summary

III. Detailed Discussion of Key Aspects of the

Proposed Regulations

A. Section 71.2—Definitions

B. Section 71.3—Sources Subject to

Permitting Requirements

C. Section 71.4—Program Implementation

D. Section 71.5—Permit Applications

E. Section 71.6—Permit Content

F. Section 71.7—Permit Review, Issuance,

Renewal, Reopenings, and Revisions

G. Section 71.8—Affected State Review

H. Section 71.9—Permit Fees

I. Section 71.10—Delegation of Part 71

Program

J. Section 71.11—Administrative Record,

Public Participation, and Administrative

Review

K. Section 71.12—Prohibited Acts

IV. Administrative Requirements

A. Reference Documents

B. Office of Management and Budget

(OMB) Review

C. Regulatory Flexibility Act Compliance

D. Paperwork Reduction Act

I. Background and Purpose

Title V of the Act as amended in 1990

(42 U.S.C. 7661 et seq.) imposes on

States the duty to develop, administer,

and enforce operating permits programs

that comply with the requirements of

title V (section 502(d)(1)). The EPA has

1 year to approve or disapprove a

submitted program (section 502(d)(1)).

Once EPA has approved a State

program, the covered sources within

that program’s scope have 1 year to

submit permit applications to the

permitting authority (section 503(c))

unless the permitting authority

establishes an earlier date. Within the

first 3 years of the program, the

permitting authority must act on all

applications submitted in the first year

of the program (section 503(c)), and EPA

must have an opportunity to object to

the proposed permit if it does not

comply with the Act’s requirements

(section 505(b)). Once the permitting

authority issues a source its permit, the

source may not violate any requirement

of its permit or operate except in

compliance with it (section 502(a)).

Title V also requires that EPA stand

ready to issue Federal operating permits

when States default in their duty to

develop and administer part 70

programs. Section 502(b) of the Act

requires that EPA promulgate

regulations setting forth provisions

under which States will develop

operating permits programs and submit

them to EPA for approval. Pursuant to

this section, EPA promulgated 40 CFR

part 70 on July 21, 1992 (57 FR 32250),

which specifies the minimum elements

of State operating permits programs.

The operating permits program’s

potential consequences for air pollution

control and for sources’ ability to meet

changing market demands have made

the process of developing and

implementing the program complex and

controversial. Indeed, nearly 20 entities,

including State and local governments,

environmental groups, and industry

associations, petitioned for judicial

review of the part 70 regulations.

Subsequently, EPA decided to propose

revisions to part 70. See 59 FR 44460

(Aug. 29, 1994). In light of ongoing

discussions with petitioners, EPA may

propose additional revisions to part 70

in the future that may also necessitate

supplementing the part 71 provisions

proposed today.

The EPA intends that proposed part

71 generally follow the approach taken

in 40 CFR part 70, including the
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recently proposed revisions to part 70.

Differences between part 70 and part 71

are noted in the discussion of each

section of the proposed rule. Where

possible and appropriate, provisions of

part 71 are consistent with part 70.

Some of the differences between the

provisions of part 71 and part 70 reflect

the fact that part 71 programs are

expected to be of limited duration. The

EPA expects that States (and many

Tribes) will revise their programs so that

they become approvable, and

responsibility for the permits program

will be transferred back to the State or

Tribe.

The Agency is aware that many

parties have already submitted

comments expressing both their

concerns about and their support for the

proposed revisions and that these

parties are interested in the final Agency

decisions on many of the issues raised

in the part 70 rulemaking. This proposal

for part 71 is not intended in any way

to prejudge the Agency’s decisions in

the part 70 rulemaking, but rather

simply parallels the proposed part 70

revisions in order to be consistent with

that proposal.

The primary purpose of the proposed

rule is to provide the mechanism by

which EPA can assume responsibility to

issue permits in situations where the

State, local, or Tribal agency has not

developed, administered, or enforced an

acceptable permits program or has not

issued permits that comply with the

applicable requirements of the Act.

Secondarily, the proposed rule provides

for delegation of certain duties that may

provide for a smoother program

transition when State programs are

approved. For both of these reasons, the

proposed rule should strengthen

implementation of the Act and enhance

air quality planning and control.

Additional benefits of the proposed

rule are much the same as those of the

part 70 State operating permits rule. For

example, permits issued under part 71

will clarify which requirements apply to

a source. This clarification should

enhance compliance with the

requirements of the Act. The part 71

program will enable the sources, EPA,

and the public to better understand the

requirements to which the source is

subject and whether the source is

meeting those requirements. Part 71

permits also provide the vehicle for

implementing air toxics programs under

section 112.

The comment period for the proposed

revisions to part 70 will end prior to the

comment period for today’s rulemaking

proposal. It would therefore be of

limited value for commenters to suggest

in response to today’s rulemaking

proposal their concerns with those

aspects of the part 70 proposed

revisions on which proposed part 71 is

based. Rather, EPA solicits comments

on whether there are any provisions in

proposed part 71 for which EPA has

inappropriately proposed consistency

with part 70 or its proposed revisions or

has inappropriately departed from part

70 or its proposed revisions.

The rationale for today’s proposal and

many of the issues addressed in this

proposal are discussed in greater detail

in a document entitled ‘‘Supplementary

Information for Proposed Federal

Operating Permits Rule’’

(Supplementary Information Document)

which is contained in the docket for this

proposal (Docket No. A–93–51).

This preamble makes frequent use of

the term ‘‘State,’’ usually meaning the

State air pollution control agency that

would be the permitting authority for a

part 70 permit program. The reader

should assume that use of ‘‘State’’ may

also include reference to a local air

pollution agency. In some cases, the

term ‘‘permitting authority’’ is used and

can refer to State, local, and Tribal

agencies. The term may also apply to

EPA, where the Agency is the

permitting authority of record.

II. Proposal Summary

Sections 502(d)(3) and 502(i)(4) of the

Act require EPA to promulgate a Federal

operating permits program when a State

has defaulted on its obligation to submit

an approvable program within the

timeframe set by title V or on its

obligation to adequately administer and

enforce an approved program. The rule

proposed in this action would establish

a national template for a Federal

operating permits program that EPA

may administer and enforce in a State.

In addition, the proposed rule would

establish the procedures for issuing

Federal permits to sources for which

States do not have jurisdiction (i.e., OCS

sources outside of State jurisdictions

and sources located in Tribal areas).

Finally, the proposed rule would

establish the procedures used when

EPA must take action on a permit that

has been proposed or issued by a State

or local agency or Indian Tribe having

an approved part 70 program and that

EPA determines is not in compliance

with the applicable requirements of the

Act.

Like part 70, part 71 requires: (1) The

use of a standard permit application

form; (2) that sources subject to

permitting requirements pay permit fees

that assure adequate program resources

and funding; and (3) permit issuance,

appeal, and renewal procedures that

ensure that each regulated source can

obtain a permit that will assure

compliance with all of its applicable

requirements under the Act. Part 71

sources must obtain an operating permit

addressing all applicable pollution

control obligations under the State

implementation plan (SIP), Federal

implementation plan (FIP), or Tribal

implementation plan (TIP); the acid rain

program; the air toxics program under

section 112; and other applicable

provisions of the Act. Sources must also

submit periodic reports to EPA

concerning the extent of their

compliance with permit obligations.

When EPA implements a part 71

program, it will cover only the

geographic area that is not covered by

an approved State, local, or Tribal

program. For example, if a local agency

within a State has an approved program

but the entire State is not covered by an

approved program, EPA’s

implementation of a part 71 program for

the State would not affect the area

subject to the approved local program.

In appropriate circumstances, EPA

may delegate to a State, local, or Tribal

permitting authority some or all of its

authority to administer a part 71

program. The responsibilities of EPA

and the delegate agency will be set forth

in a Delegation of Authority Agreement.

The EPA will generally cease

implementation of a part 71 program

subsequent to approval of a State

operating permits program.

III. Detailed Discussion of Key Aspects

of the Proposed Regulations

A. Section 71.2—Definitions

Generally, the proposed definitions in

part 71 would follow the definitions in

currently promulgated part 70 and its

proposed revisions, as appropriate.

However, some of the definitions used

in 40 CFR part 70 would be modified for

use in this part. The key part 71

definitions (including some which

would be defined differently than in

part 70) are discussed in this section.

Others are discussed in the preamble

sections describing the program areas

where they are primarily used. Still

others are defined in other titles of the

Act and the regulations promulgated

thereunder.

1. Affected State

The definition of ‘‘affected State’’ for

purposes of proposed § 71.8 would

include lands within the exterior

boundaries of an Indian reservation or

other areas over which an Indian Tribe

has jurisdiction (hereafter ‘‘Tribal

area’’). If EPA administers a part 71

program for such an area, EPA would

consider the Indian Tribe to be an
20806 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

affected State and would provide the

Tribe notice of draft permits, permit

renewals, permit reopenings, and permit

revisions. Such notice would also be

provided when a part 71 program is

implemented outside of a Tribal area

and an applicant source is within 50

miles of the Tribal area, or is in an area

that is contiguous to the Tribal area and

may affect the air quality in that area,

provided the Indian Tribe meets the

eligibility criteria for being treated in

the same manner as a State for programs

under the Act. See 59 FR 43956 (Aug.

25, 1994).

The definition of ‘‘affected State’’ for

purposes of proposed § 71.8 would also

include the State or Tribal area and the

area within the jurisdiction of the air

pollution control agency in which the

part 71 permit, permit revision, or

permit renewal is being proposed. EPA

believes this provision is necessary for

part 71, while not for part 70. In some

cases under a part 71 program, the title

V permitting authority (EPA) would not

be the same as the governmental body

with general jurisdiction over the area

(i.e., the State, Tribe, or local air

pollution control agency). When EPA is

the permitting authority, EPA believes it

is necessary to notify the States, Tribal

authorities, and local agencies with

jurisdiction over the areas in which

EPA’s action is proposed. Otherwise,

these authorities would be less apprised

of EPA’s actions than the neighboring

areas that do not have jurisdiction over

these areas and are less likely to be

impacted by EPA’s actions. The EPA

solicits comment on this expansion of

the term ‘‘affected State,’’ and on

whether other mechanisms might

adequately serve to apprise ‘‘host’’

jurisdictions of EPA part 71 actions.

2. Applicable Requirements

An ‘‘applicable requirement’’ is any

standard or other requirement that

applies to a source. This includes any

relevant requirement in an approved SIP

or preconstruction permit. It also

includes any pertinent standard or other

requirement imposed pursuant to any

title of the Act, such as sections 111,

112, 114(a)(3), 129, 183(e), 183(f), 328,

504(b), 504(e), 608, or 609. However,

EPA does not believe that the provisions

of sections 604 through 606 and 610

through 612 of title VI of the Act must

be considered as applicable

requirements for title V and included in

title V permits. The rationale for this

determination can be found in the

preamble to the proposed revision of the

part 70 regulations, at IV.A.1(b). See 59

FR 44460 (Aug. 29, 1994).

For purposes of part 71, EPA today

incorporates that rationale by reference.

The EPA also incorporates by reference

that notice’s rationale for adding to the

list of applicable requirements any

requirements that create offsets or limit

emissions for the purpose of complying

with, or avoiding applicable

requirements. The proposed addition to

the part 70 list and today’s proposal for

part 71 would add as an applicable

requirement any emissions-limiting

requirement that is enforceable by

citizens or EPA under the Act and that

is placed on a source for purposes of

creating an offset credit or avoiding the

applicability of applicable requirements.

3. Tribal Areas

The EPA has published a proposed

rule, pursuant to section 301(d)(2),

specifying the provisions of the Act for

which EPA believes it is appropriate to

treat Indian Tribes in the same manner

as States. See 59 FR 43956 (Aug. 25,

1994) (‘‘Indian Tribes: Air Quality

Planning and Management,’’ hereafter

‘‘proposed Tribal rule’’). The proposed

Tribal rule also addresses the criteria a

Tribe must meet in order to be eligible

for treatment in the same manner as a

State for the specified provisions of the

Act.

For a Tribe to be eligible for treatment

in the same manner as a State, it must

be Federally recognized (section 302(r))

and must meet the three criteria set

forth in section 301(d)(2)(A)–(C).

Briefly, these criteria consist of the

following: (1) The Tribe must have a

governing body carrying out substantial

governmental duties and powers; (2) the

functions to be exercised by the Tribe

must pertain to the management and

protection of air resources within the

exterior boundaries of the reservation or

other areas within the Tribe’s

jurisdiction; and (3) the Tribe must be

capable of carrying out the functions to

be exercised consistent with the terms

and purposes of the Act and applicable

regulations. These criteria and EPA’s

streamlined process for determining

compliance with these criteria are

described in detail in the Tribal rule (59

FR 43961–43964).

In the Tribal rule, EPA proposes to

interpret the Act as granting, to Tribes

approved by EPA to administer

programs under the Act in the same

manner as States, authority over all air

resources within the exterior boundaries

of an Indian reservation. This would

enable Tribal-approved programs under

the Act to address conduct on all lands,

including non-Indian owned fee lands,

within the exterior boundaries of a

reservation. The proposed Tribal rule

would also authorize an eligible Tribe to

develop and implement programs under

the Act for off-reservation lands that are

determined to be within a Tribe’s

inherent sovereign authority to regulate.

The rationale for this proposed

interpretation of Tribal jurisdiction

under programs under the Act is set out

in detail in the proposed Tribal rule,

and is incorporated here by reference.

See 59 FR 43958–43961.

EPA’s final interpretation of Tribal

jurisdiction under this Act may affect

the scope of a part 71 program

administered by EPA for Tribes. When,

pursuant to Federal implementation

authority, EPA is acting in the place of

a State or Tribe under the Act, all of the

rights and duties that would otherwise

fall to the State or Tribe accrue instead

to EPA. See Central Arizona Water

Conservation Dist. v. EPA, 990 F.2d

1531, 1541 (9th Cir. 1993), cert. denied,

114 S.Ct. 94 (1993). Therefore, the scope

of Tribal authority under the Act may

inform EPA’s authority in administering

a part 71 program for Tribes.

More specifically, EPA would have

authority to implement a Tribal part 71

program for any lands within the

exterior boundaries of a reservation and

any off-reservation land over which a

Tribe has inherent sovereign authority.

Tribes determined eligible to be treated

in the same manner as a State under the

Act would be given notice under

proposed §§ 71.8 and 71.10 of certain

permit actions. All land within the

exterior boundaries of a reservation and

any other lands over which a Tribe has

demonstrated inherent authority would

be considered in providing notice to a

Tribe. Further, the proposed part 71

rules provide that, in all instances, the

Tribe for the area in which a part 71

permit program is being administered

will receive notice.

The EPA’s proposed Tribal rule is

subject to public comment and may be

modified before it is issued in final

form. The EPA may need to make

conforming changes to the part 71 rules

proposed today to reflect any relevant

revisions made to the Tribal rule.

4. Major Source

The EPA is proposing to utilize the

same approaches to defining ‘‘major

source’’ as were used for 40 CFR parts

63 and 70, except that today’s proposal,

like the recently proposed revisions to

part 70, would change the definition of

major source to conform to the

definition in section 112(a) of the Act

and to implementing regulations

governing hazardous air pollutants

(HAP) sources recently promulgated in

40 CFR part 63. Section 501(2) of the

Act provides, in relevant part, that the

term ‘‘major source’’ means ‘‘any

stationary source (or any group of

stationary sources located within a
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contiguous area and under common

control)’’ that would be a major source

under section 112 or a major stationary

source under section 302 or part D of

title I of the Act. Other conditions and

requirements relevant to the major

source definition are:

a. Section 302 and Part D Sources.

Except for sources qualifying as support

facilities (see paragraph (c) of this

section), stationary sources can only be

aggregated to determine whether they

constitute a major stationary source

subject to section 302 or part D of the

Act if they are in the same industrial

grouping, as determined by their 2-digit

code. These codes can be found in the

Standard Industrial Classification

Manual, 1987.

b. Section 112 Sources. Stationary

sources of HAP must be aggregated for

the purpose of determining whether

they are major sources subject to section

112 without regard to their industrial

grouping.

c. Support Facilities. The EPA

proposes to include in the definition of

a major source pursuant to section 302

or part D of title I of the Act, any facility

or emission unit used to support the

main activity of the source, regardless of

its 2-digit code. A support facility must

be located on the same property as the

source it supports, or on adjacent

property, and be under the control of

the same entity. Also, at least 50 percent

of the support facility’s output must be

dedicated to the source.

d. Emission Requirements. To be

major, a stationary source must have the

potential to emit pollutants in amounts

at or above the major source threshold,

which is determined by the type of

pollutant emitted and by the attainment

status of the area in which the source is

located. Thus, the term ‘‘major source’’

encompasses the following:

(1) Air toxics sources with the

potential to emit 10 tons per year (tpy)

or more of any HAP listed pursuant to

section 112(b); 25 tpy or more of any

combination of HAP listed pursuant to

section 112(b); or a lesser quantity of a

given pollutant, if the Administrator so

specifies. And, once the Administrator

promulgates a definition of major source

for radionuclides, a source would be

major if it emits, or has the potential to

emit, major amounts of radionuclides.

(2) Sources of air pollutants, as

defined in section 302 of the Act with

the potential to emit 100 tpy or more of

any pollutant.

(3) Except as noted in paragraph (d)(4)

of this section, sources subject to the

nonattainment area provisions of title I,

part D, with the potential to emit

pollutants in the following, or greater,

amounts:

(a) 50 tpy VOC or NOX in serious

ozone nonattainment areas;

(b) 25 tpy VOC or NOX in severe

ozone nonattainment areas;

(c) 10 tpy VOC or NOX in extreme

ozone nonattainment areas;

(d) 50 tpy VOC in ozone transport

regions established pursuant to section

189 of the Act;

(e) 50 tpy carbon monoxide (CO) in

serious CO nonattainment areas; and

(f) 70 tpy particulate matter (PM–10)

in serious particulate matter

nonattainment areas.

(4) The NOX thresholds in paragraph

(d)(3) of this section do not apply in

nonattainment areas qualifying for an

exemption under section 182(f) of the

Act. This exemption applies in the case

where reducing NOX emissions would

not reduce ozone formation. In those

areas, a stationary source of NOX is not

considered a major source under part D

of title I of the Act unless its potential

to emit is 100 tpy or more. In areas not

qualifying for this exemption, NOX

sources are subject to the lower

thresholds defined in part D and listed

in paragraph (d)(3) of this section.

Whatever its location, any 100 tpy

source would be considered a major

source under section 302 of the Act.

Also, the major source threshold for

VOC in ozone transport regions in

paragraph (d)(3) of this section does not

apply for NOX. This threshold was

created by section 184(b) of the Act.

Because section 182(f) of the Act (which

requires NOX sources to meet the same

thresholds as VOC sources) does not

refer to section 184(b) of the Act, the

lower threshold for VOC sources in

ozone transport regions does not apply

to NOX sources.

e. Fugitive Emissions. The fugitive

emissions from a stationary source shall

be considered in making the

determination as to whether it is a major

source when:

(1) The source belongs to one of the

source categories listed in the definition

of ‘‘major stationary source’’ at 40 CFR

parts 51 and 52 which includes source

categories regulated by a section 111 or

section 112 standard as of August 7,

1980. Thus, proposed part 71 would

follow the proposed revisions to part 70

in that sources in categories subject to

standards set after August 7, 1980, if not

otherwise listed, would be exempted

from the requirement to include fugitive

emissions when making their major

source determination until such time as

EPA conducts section 302(j) rulemaking

to require that fugitive emissions from

those sources be included.

(2) The air pollutants emitted are HAP

or radionuclides. The EPA believes the

Act requires that fugitive emissions of

HAP or radionuclides, to the extent

quantifiable, be counted. Section

112(a)(1) of the Act uses the term ‘‘major

source,’’ rather than ‘‘major stationary

source,’’ and legislative history

indicates an intent by Congress to treat

this definition differently than the

section 302(j) ‘‘major stationary source’’

definition. Moreover, section 112 of the

Act establishes a new program with a

relatively narrow focus; it applies only

for specific HAP at source categories to

be determined by EPA. All this suggests

that the section 302(j) rulemaking

requirement does not apply in the

context of section 112, and that fugitive

emissions must therefore be included

for the purpose of determining whether

a source is major under section

112(a)(1).

4. New Source Review

The definitions for major and minor

NSR have been included so they can be

used to describe the proposed permit

revision procedures. In some cases, the

action to revise a permit will depend on

whether the change was subjected to

major or minor NSR before being

processed as a part 71 revision.

5. Potential To Emit

In the proposed definition of

‘‘potential to emit,’’ limitations on a

source’s potential to emit would be

federally enforceable only if they are

enforceable by the Administrator and

citizens under the Act. This differs from

the definition currently in part 70 of this

chapter, in that the part 70 definition

only requires that the limitations be

enforceable by the Administrator. This

proposal would follow the definition in

the proposed revisions to part 70. See 59

FR 44460 (Aug. 29, 1994).

6. Responsible Official

The proposed definition of

‘‘responsible official’’ would follow the

definition in the recently proposed

revisions to part 70.

7. Title I Modification

The proposed rule would adopt the

definition of ‘‘title I modification’’ or

‘‘modification under any provision of

title I of the Act’’ that is used in part 70.

The proposed definition parallels a

proposed revision to the regulations at

part 70 of this chapter, on which EPA

solicited comment, and the rationale for

the definition in the preamble to the

proposed revision to part 70 is

incorporated herein by reference. See 59

CFR 44460 (Aug. 29, 1994).
20808 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

B. Section 71.3—Sources Subject to

Permitting Requirements

Section 502(a) of the Act subjects all

affected sources (as provided in title IV),

major sources, sources (including area

sources) subject to standards or

regulations under sections 111 or 112,

sources required to have permits under

parts C or D of title I, and any other

source in a category designated by EPA,

to the permitting requirements of title V.

Section 502(a) also provides the

Administrator the discretion to exempt

one or more source categories (in whole

or in part) from the requirement to

obtain a permit ‘‘if the Administrator

finds that compliance with such

requirements is impracticable, infeasible

or unnecessarily burdensome on such

categories.’’ The Act specifies that major

sources may not be exempted from these

requirements. This requirement applies

both to sources that are major for criteria

pollutants and those that are major

emitters of the HAP listed at section

112(b). However, section 112(r)(7)(F) of

the Act also provides that sources that

are subject solely to regulations or

requirements under section 112(r) of the

Act are not required to obtain a permit

under this part.

1. Temporary Exemptions for Nonmajor

Sources

Section 70.3(b)(1) of this chapter

deferred the applicability of part 70 to

nonmajor sources (except for affected

sources and solid waste incineration

sources) that would otherwise be subject

because they are in a source category

that is subject to part 70, such as one

regulated by a section 111 or 112

standard. In the final part 70 rule, EPA

stated its intent to propose rulemaking

to resolve the exception status of these

nonmajor sources within 5 years

following the first full or partial

approval of a State program with a

deferral.

The EPA proposes to follow the same

approach to deferrals for purposes of

part 71.

2. Permanently Exempted Source

Categories

The EPA proposes to exempt

permanently two source categories from

the requirement to obtain a part 71

permit:

(1) All sources that would be required

to obtain a permit solely because they

are subject to regulation under the

demolition and renovation provisions of

the NESHAP for asbestos (40 CFR

61.145); and

(2) All sources that would be required

to obtain a permit solely because they

are subject to regulation under the NSPS

for residential wood heaters (40 CFR

60.530).

These source categories were

exempted from permitting requirements

under part 70 because the Administrator

determined that permitting such sources

would be impracticable, infeasible, and

unnecessarily burdensome. This

exemption is proposed to be continued

for part 71. A more detailed rationale for

this exemption is provided in the

preamble to the part 70 regulations at 57

FR 32263–32264 (July 21, 1992), which

EPA today incorporates by reference for

purposes of part 71.

3. Major Section 112 (HAP) Sources

Like the proposed revisions to part 70

of this chapter, today’s proposal would

ensure that the definition of major

source in this part matches the

definition in section 112(a) of the Act

and in the regulations governing HAP

sources recently promulgated in 40 CFR

part 63. Under 40 CFR Part 63, EPA

definition of a major source of HAP is

more inclusive than the definition

originally promulgated in part 70.

Unlike part 70, the part 63 definition of

major source does not reference

standard industrial classification (SIC)

codes. As defined in part 63, an entire

contiguous or adjacent plant site is

considered a single source, rather than

being subdivided according to industrial

classification. See 59 FR 12412 (March

16, 1994). This definition does not limit

the sources (or emission units) that can

be included in a stationary source to

those having the same 2-digit code. One

result of this more inclusive definition

is that there will likely be some HAP

sources that are major under part 63 but

are not major under part 70, as

originally promulgated. The EPA

believes it is necessary to expand the

major source definition in part 70 and

part 71 to include all sources that are

major for part 63. Otherwise, those

sources subject to a section 112 standard

or other requirement will not have to

apply for and obtain a part 71 permit

until required to do so by a specific

section 112 standard. Today’s proposal,

and the proposed revisions to part 70 of

this chapter, reflect the more inclusive

part 63 definition and ensure that HAP

sources are treated consistently under

rules promulgated pursuant to section

112 and title V of the Act.

4. Section 112(r) Pollutants

Section 70.3(a)(3) of this chapter, as

originally promulgated, requires any

source subject to a standard or other

requirement under section 112 of the

Act to obtain a part 70 permit unless it

would be subject to part 70 solely

because it is subject to regulations or

requirements under section 112(r).

Section 112(r)(3) requires EPA to

promulgate a list of regulated substances

and thresholds for the prevention of

accidental releases. Section 112(r)(4)

establishes criteria for the development

of a list of regulated substances,

focusing on acute effects that result in

serious off-site consequences, rather

than chronic effects. As a result, many

of the substances listed in § 68.130 of

this chapter pursuant to section

112(r)(3) (59 FR 4478 (January 31, 1994))

are not regulated elsewhere under the

Act.

Questions have been raised as to

whether § 70.3(a)(1) of this chapter,

which provides that ‘‘any major source’’

is subject to the permit rule, requires

that sources that have major source

levels of section 112(r) pollutants must

be permitted. Setting aside the issues of

whether and how major source status is

to be determined for section 112(r)

purposes, section 112(r)(7)(F) exempts

from title V permitting requirements any

source that would be subject to title V

only as result of being subject to section

112(r) requirements. That section

provides that ‘‘(n)otwithstanding the

provisions of title V or this section, no

stationary source shall be required to

apply for, or operate pursuant to, a

permit issued under such title solely

because such source is subject to

regulations or requirements under this

subsection.’’ Thus, it is clear that even

if a source could be considered a ‘‘major

source’’ for section 112(r) purposes, it

would not be subject to title V

permitting on that basis alone. The

EPA’s proposed revisions to 40 CFR part

70 would revise § 70.3(a) of this chapter

to clarify this point. Similarly, proposed

§ 71.3(a) reflects this approach.

C. Section 71.4—Program

Implementation

Proposed section 71.4(a) describes the

circumstances in which EPA would

establish a full or partial Federal

operating permits program for a State,

excluding Tribal areas. Section 502(d)(3)

of the Act requires EPA to promulgate,

administer, and enforce a program for a

State if an operating permits program for

the State has not been approved in

whole by November 15, 1995. However,

the requirement that EPA establish a

Federal program by November 15, 1995

for States lacking a fully approved

program is suspended if a State program

is granted interim approval. The duty to

implement a Federal program then

reapplies upon expiration of an interim

approval, if the State has not received

full approval by that time.

As provided in proposed § 71.4(a)(3),

EPA would have the authority to
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20809

1For purposes of this rule, EPA is proposing to

adopt the same definition of ‘‘governmental

entities’’ as the Agency did in its December 1991

Water Quality Standards regulation. See 56 FR

64876 at 64884 (Dec. 12, 1991).

establish a partial part 71 program in

limited geographical areas of a State if

EPA has approved a part 70 program (or

combination of part 70 programs) for the

remaining areas of the State. This

should avoid unnecessary disruption of

partial programs that have been

approved within a State and avoid

intruding into the State’s administration

of its air program where only certain

jurisdictions have failed to implement

an approvable part 70 program.

The proposed rule also provides for

EPA implementation of part 71

programs to ensure coverage of Tribal

areas. The proposed Tribal rule

generally describes EPA’s authority for

implementing programs under the Act

to protect Tribal air quality. 59 FR

43960–43961. That discussion is

incorporated here by reference.

In broad overview, the Act authorizes

EPA to protect air quality on lands over

which Indian Tribes have jurisdiction.

The overarching purpose of the Act is

‘‘to protect and enhance the quality of

the Nation’s air resources so as to

promote the public health and welfare

and the productive capacity of its

population.’’ section 101(b)(1). The

members of the public residing on lands

over which Tribes have jurisdiction are

equally entitled to air quality protection

as those residing elsewhere.

Several provisions of the Act evince

Congressional intent to authorize EPA to

directly implement programs under the

Act where there are voids in program

coverage (e.g., sections 110(c)(1), 301

(d)(4) and 502 (d)(3), (i)(4)). Federal

implementation of Clean Air Act

programs on Indian lands is particularly

appropriate where Federal action will

prevent a ‘‘vacuum of authority’’ in air

quality protection. See Phillips

Petroleum Co. v. EPA, 803 F.2d 545,

555–56 (10 Cir. 1986) (affirming EPA’s

authority to directly implement Safe

Drinking Water Act Underground

Injection Control program on Indian

lands where concluding otherwise

would contradict the meaning and

purpose of the Act by creating ‘‘a

vacuum of authority over underground

injections on Indian lands, leaving vast

areas of the nation devoid of protection

from groundwater contamination’’).

Based on the proposed interpretation of

Tribal jurisdiction under the Act in

EPA’s Tribal rule, discussed previously,

EPA would have authority under

today’s proposed rules to implement

part 71 programs for all areas within the

exterior boundaries of an Indian

reservation and other areas over which

an Indian Tribe has jurisdiction.

If finalized as proposed, the Tribal

rule will authorize Tribes to develop

and submit title V operating permit

programs to EPA for approval. The

EPA’s principal objective would be to

assist Tribes in developing and

administering their own title V

operating permit programs, similar to

the manner in which EPA has assisted

States. The EPA recognizes that

ultimately Tribes are best situated to

provide primary protection of Tribal air

resources. To these ends, EPA’s

proposed Tribal rule provides the

following:

It is EPA’s policy to assist Tribes in

developing comprehensive and effective air

quality management programs to insure that

Tribal air quality management programs will

be implemented to the extent necessary on

Indian reservations. EPA will do this by,

among other things, providing technical

advice and assistance to Indian Tribes on air

quality issues. EPA intends to consult with

Tribes to identify their particular needs for

air program development assistance and to

provide on-going assistance as necessary.

59 FR 43961.

However, EPA also intends to be

prepared to implement title V programs

in the event Tribes do not. To avoid

gaps in title V permits program

coverage, the rules proposed today

authorize EPA to implement a title V

operating permits program for Tribes

that do not develop their own programs.

The more difficult issue is when EPA

should implement title V programs for

Tribes. EPA believes it is reasonable to

give Tribes some opportunity to develop

their own title V programs, assuming

EPA’s final Tribal rule authorizes them

to do so, before EPA directly

implements title V programs.

The part 71 rules propose to authorize

EPA to implement the title V permit

program for Tribes if a Tribal program

has not been fully approved by

November 15, 1997. Within the first two

years of the program, the permitting

authority would be required to take

action on all applications submitted in

the first year of the program. Nothing in

today’s proposal would prevent EPA

from implementing a part 71 program

for a Tribal area subsequent to

November 15, 1995 but prior to

November 15, 1997. It may be

appropriate, particularly where the

absence of an operating permits program

would create a gap in coverage, for EPA

to implement part 71 programs in

advance of the effective date set by the

rule. The EPA would discuss early

implementation with the affected Tribe

before adopting an earlier effective date.

In such a case, the program would

become effective when the

Administrator provides written notice to

the Tribal chairperson or analogous

Tribal leader.

The EPA considered several factors in

addressing this issue including: The

opportunity for the development of

Tribal programs that would render

Federal implementation unnecessary;

the importance of title V coverage,

whether Tribal or Federal, in protecting

Tribal air quality; and, the need to treat

the potentially affected regulated

community fairly and to facilitate

certainty in business planning. The EPA

solicits comments on whether the EPA’s

proposed approach to the effective date

of the program is appropriate and

whether the two-year deadline for

taking action on permit applications is

appropriate and feasible.

The proposed Tribal rule describes an

administrative procedure by which EPA

would resolve jurisdictional issues

affecting Tribes. See 59 FR 43962–43963

(Aug. 25, 1994). That discussion is

incorporated here by reference.

Generally, EPA expects these issues to

involve the precise boundary of the

reservation in question and, less

frequently, competing claims of

jurisdiction over land which is outside

of the exterior boundaries of a

reservation.

Briefly summarized, the proposed

Tribal rule would require EPA to notify

the appropriate governmental entities

regarding the Tribe’s assertion of

jurisdiction.1 Those entities would have

fifteen days following receipt of EPA’s

notification to provide formal comments

to EPA regarding any dispute they might

have with the Tribe’s assertion of

jurisdiction. Where the dispute

concerns jurisdiction over offreservation lands, appropriate

governmental entities may request a

one-time fifteen-day extension to the

comment period. In all cases, comments

from appropriate governmental entities

would have to be offered in a timely

manner and be limited to the Tribe’s

jurisdictional assertion. Where no

timely comments are presented, EPA

would conclude there is no objection to

the Tribe’s assertion. To raise a

competing or conflicting claim, a

commenter would be required to clearly

explain the substance, basis, and extent

of its objections. Finally, where EPA

receives timely notification of a dispute,

it could obtain such additional

information and documentation as it

believes appropriate and, at its option,

consult with the Department of the

Interior.

For purposes of identifying the Tribal

area for which a part 71 program is
20810 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

2Although this preamble section addresses

withdrawing approval of State operating permit

programs, note that eligible Tribes would be treated

in the same manner as States for purposes of

withdrawal of program approval, assuming the

Tribal rule is finalized as proposed. In that case, the

provisions of 40 CFR 70.10(b)(1), which address

State failure to administer or enforce an approved

part 70 program, and 40 CFR 70.10(c), which

addresses criteria for withdrawal of State programs,

would apply equally to Tribal programs.

implemented, EPA proposes to follow

the approach to resolving jurisdictional

issues taken in the Tribal air rule. If the

Tribal rule is finalized as proposed, EPA

would notify appropriate governmental

entities of the boundary of the Tribal

area for a part 71 program at least 90

days prior to the effective date of the

program. Those entities would then

have an opportunity to provide formal

comments prior to the program’s

effective date, as discussed above.

Where no timely comments are

presented, EPA would make a

determination that the boundary for the

part 71 program would be as proposed

in the notice. Subsequently, EPA would

publish a notice in the Federal Register

which describes the precise boundaries

of the part 71 program.

Where EPA identifies a jurisdictional

dispute, it may obtain additional

information and documentation and

consult with the Department of the

Interior prior to making a determination.

The EPA would subsequently publish a

notice in the Federal Register which

describes the precise boundaries of the

part 71 program. If the dispute cannot

be resolved promptly, EPA would retain

the option of implementing the part 71

program in the areas that are clearly

shown to be part of the reservation (or

are otherwise within the Tribe’s

jurisdiction). This will allow EPA to

implement a part 71 program that covers

all undisputed areas, while withholding

action on the portion that addresses

areas where a jurisdictional issue has

not been satisfactorily resolved.

As proposed in § 71.4(c), EPA would

promulgate a part 71 program for a

permitting authority (including an

eligible Tribe) if EPA determines that an

approved program is not adequately

administered or enforced and the

permitting authority fails to correct the

deficiencies that precipitated EPA’s

finding.2 Where the acid rain portion of

an operating permits program is not

adequately administered, EPA could

withdraw either the entire program or

just the acid rain portion of the program.

If EPA finds that the nonacid rain

portion of the operating permits

program is being adequately

administered, EPA would generally

withdraw only the acid rain portion. In

such a case, EPA would issue the acid

rain portion of the source’s permit using

the procedures set forth in 40 CFR part

72, and the State would continue to

issue the remaining portion of the

operating permits and would issue all

permits to sources other than acid rain

sources.

When EPA determines that a State is

not adequately administering its

program, EPA would provide notice to

the State as required by 40 CFR

70.10(b)(1). The State would then have

90 days in which to take significant

action to assure adequate administration

and enforcement of the program. Where

EPA determines that the State has not

taken such significant action within the

specified time, EPA could begin

implementing a Federal program

immediately. Otherwise, if the State had

not fully corrected the deficiency that

prompted EPA’s determination of

failure to administer or enforce within

18 months of the determination, EPA

would begin implementing a Federal

program 2 years after the date of the

determination. This framework is

identical to that which EPA

promulgated in part 70 at 40 CFR

70.10(b) (2) and (4).

The EPA acknowledges that its intent

to retain the option of withdrawing only

the acid rain portion of a program in

appropriate situations is a change of

position from EPA’s statement in the

preamble to the final part 70 rule (see

57 FR 32260) that should a State fail to

adequately administer phase II of the

acid rain program, EPA will take back

the entire operating permits program.

There, EPA stated that in such a

situation EPA would implement part 71,

as supplemented by Federal acid rain

permit issuance procedures, and would

issue permits to acid rain sources within

the State. The EPA notes that this

discussion was not reflected in

regulatory language in the finally

promulgated part 70 rule, which instead

provided EPA discretion to withdraw

program approval in whole or in part.

See 40 CFR 70.10(c)(1). Moreover, EPA

explained in a May 21, 1993 guidance

document entitled ‘‘Title IV–Title V

Interface Guidance for States,’’ that if

EPA finds that a part 70 program is not

being properly administered or enforced

for title IV purposes, EPA will publish

a notice in the Federal Register making

this announcement and noting where

permit applications are to be delivered.

When publishing such a Federal

Register notice, EPA may elect to

withdraw approval for an entire part 70

program submittal or only the acid rain

portion of it and may apply appropriate

sanctions under section 179(b) of the

Act.

Under part 71, EPA would retain the

option of withdrawing only the acid

rain portion of the program and issuing

a phase II acid rain permit, rather than

withdrawing the entire part 70 program

and issuing a comprehensive part 71

operating permit. The EPA believes that

it is reasonable and appropriate to

depart from the policy stated in the

preamble to the final part 70 rule

regarding withdrawal of phase II acid

rain authority because EPA believes that

deficiencies with respect to the acid rain

portion of a State program would

generally not adversely affect the

remaining portions of the State program.

By withdrawing approval of just the

acid rain portion, EPA would minimize

disruption of otherwise adequate State

air programs. It should be noted that the

acid rain portion of a source’s operating

permit contains discreet requirements

that are not intertwined with the

remaining provisions of the permit. For

example, phase II acid rain permits

generally contain a requirement that a

source hold sufficient allowances to

cover emissions, specify requirements

for NOX emissions and provide for

continuous emissions monitoring in

accordance with 40 CFR part 75.

Amendments and revisions to such

provisions are subject to a different set

of procedures as specified in 40 CFR

part 72. Thus, separate Federal

administration of the acid rain

permitting program in a State that fails

to adequately administer the acid rain

portion of its operating permits program

would be a logical step where the

remainder of the part 70 program was

being adequately administered by the

State.

The EPA solicits comment on this

approach, and on whether this approach

is consistent with the requirements of

title V. The EPA stresses that section

502(i)(1) of the Act allows EPA to

determine that only a portion of an

approved State program is not being

adequately administered and enforced.

While section 502(i)(1) does not

explicitly provide that where a State

fails to correct an identified deficiency

in a finding under section 502(i)(4), EPA

may promulgate, administer, and

enforce only the relevant portion of the

program, EPA believes that Congress

could not have intended for EPA to be

compelled to withdraw and take over

entire part 70 programs where only

discrete portions of the program are

deficient. Such a result would be

unnecessarily disruptive of State air

programs and would require much

greater Federal intrusion into the State’s

air program than may be necessary to

correct the faulty portion.
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20811

Section 71.4(d) addresses the

circumstances in which EPA proposes

to issue permits to OCS sources (sources

located in offshore waters of the United

States) pursuant to the requirements of

section 328(a) of the Act. Section 328 of

the Act transferred from the Department

of the Interior to EPA the authority to

regulate air pollution from sources

located on the OCS off of the Atlantic,

Arctic, and Pacific coasts and in the

Gulf of Mexico east of 87.5 degrees

longitude. In today’s notice, which

proposes revisions to 40 CFR part 55 in

addition to the proposed Federal

operating permit rules, EPA is

proposing to require an OCS source to

comply with the requirements of part 71

if the source is located beyond 25 miles

of States’ seaward boundaries or if the

source is located within 25 miles of a

State’s seaward boundary and the

requirements of part 71 are in effect in

the corresponding onshore area (COA).

Section 328 requires that EPA establish

requirements for sources located within

25 miles of a State’s seaward boundary

that are the same as would be applicable

if the source were located in the COA.

Part 71 permits would be issued to

OCS sources by the Administrator or a

State or local agency that has been

delegated the OCS program in

accordance with part 55 of this chapter.

As OCS sources beyond 25 miles of

States’ seaward boundaries would

become subject to part 71 immediately

upon the effective date of part 71, they

would be required to submit part 71

permit applications within 1 year of

becoming subject to this part.

Proposed § 71.4(e) describes how EPA

would take action on objectionable

permits that have already been proposed

or issued by a permitting authority.

Section 505(b) of the Act and 40 CFR

70.8 (c) and (d) require EPA to object to

the issuance of any permit that EPA

determines is not in compliance with

the applicable requirements of the Act.

If the permitting authority does not take

appropriate action in response to EPA’s

objection, EPA shall revise, terminate,

or revoke the permit if it has been

issued and shall correct and issue the

permit if it has not been issued.

As provided in 40 CFR 70.7(g)

(§ 70.7(j) in the proposed revisions to

part 70), if EPA finds that a State-issued

permit must be reopened to correct an

error or add newly applicable

requirements, EPA will notify the

permitting authority. If the permitting

authority does not take appropriate

action, EPA will revise and reissue the

permit under part 71.

As provided at 40 CFR 70.8(c)(1), EPA

will object to the issuance of any

proposed permit that EPA determines is

not in compliance with the applicable

requirements of the Act or the

requirements of part 70. If EPA objects

within 45 days of receipt of a copy of

the proposed permit, the permitting

authority may not issue the proposed

permit to the source. The EPA’s

objection, as required by 40 CFR

70.8(c)(2), shall include a statement of

EPA’s reasons for objecting and a

description of the permit terms that the

permit must include to respond to the

objection. Moreover, under 40 CFR

70.8(c)(3), failure of the permitting

authority to: (1) Comply with

requirements in 40 CFR 70.8 (a) and (b)

to notify EPA and affected States, (2)

submit to EPA any information

necessary to adequately review the

proposed permit, or (3) process the

permit under procedures approved to

meet the public participation

requirements of part 70 would also

constitute grounds for EPA objection to

a proposed permit.

Under 40 CFR 70.8(c)(4), if the

permitting authority fails within 90 days

after EPA’s objection to revise and

submit to EPA a new proposed permit

responding to the objection, EPA will

issue or deny the permit. Proposed

§ 71.4(e)(1) would establish the

authority for EPA’s permit issuance or

denial in these situations.

Likewise, proposed § 71.4(e)(1) would

establish the authority for EPA to revise,

terminate, or revoke a permit in

response to a citizen petition filed under

40 CFR 70.8(d). The EPA’s action to

revise, terminate or revoke a permit

would then occur consistent with 40

CFR 70.7(g)(4) or (5)(i) and (ii)

(§§ 70.7(j)(4) or (5)(i) and (ii) of the

proposed revisions to part 70), except in

unusual circumstances, such as where

there is a substantial and imminent

threat to the public health and safety

resulting from the deficiencies in the

permit. Usually, the permitting

authority would have 90 days from

receipt of EPA’s objection in response to

a citizen petition to resolve the

objection and terminate, revise, or

revoke and reissue the permit in

accordance with EPA’s objection. See 40

CFR 70.7(g)(4), § 70.7(j)(4) of the

proposed revisions to part 70. If the

permitting authority failed to resolve the

objection, EPA would terminate, revise,

or revoke and reissue the permit, after

providing at least 30 days notice to the

permittee in writing of the reasons for

such action (which may be given at any

time during the time period after EPA

objects to the permit) and providing the

permittee an opportunity for comment

on EPA’s proposed actions and an

opportunity for a hearing. See 40 CFR

70.7(g)(5)(i) and (ii) and §§ 70.7(j)(5)(i)

and (ii) of the proposed revisions to part

70. Proposed § 71.4(e)(2) would provide

the authority for EPA to take such

action.

Section 71.4(f) of the proposed rule

would authorize EPA to use part 71 in

its entirety or any portion of the

regulations, as needed. For example,

EPA could use the provisions for

permitting OCS sources without

permitting any other types of sources.

Similarly, EPA could use only portions

of the regulations to correct and issue a

State permit without, for example,

requiring an entirely new application.

Proposed § 71.4(f) would also authorize

EPA to exercise its discretion in

designing a part 71 program. The EPA

would be able to, through rulemaking,

modify the national template by

adopting appropriate portions of a

State’s program as part of the Federal

program for that State, provided the

resulting program is consistent with the

requirements of title V.

The EPA believes it is reasonable and

appropriate to provide this flexibility in

implementing a part 71 program. First,

such flexibility would enable EPA to

intervene in the administration and

enforcement of an operating permits

program only to the extent necessary to

correct deficiencies. Second, it would

provide EPA, after notice and comment

rulemaking, the ability to appropriately

tailor part 71 to the State in which it

would be implemented, thus resulting

in less disruption of the State air

program and the daily operations of

covered sources than might otherwise

occur. While EPA believes that part 71

as proposed today should not result in

unnecessary disruption, the Agency

recognizes that further State-specific

tailoring may be appropriate.

Proposed § 71.4(g) clarifies that EPA

would publish a notice of the effective

dates of part 71 programs. The EPA

would publish such notice in the

Federal Register and would, to the

extent practicable, publish notice in a

newspaper of general circulation in the

area affected by the part 71 program.

The EPA would also publish such

notice for delegations of part 71

programs. Finally, in addition to notices

in the Federal Register and newspapers

of general circulation, EPA would send

a letter to the Governor (or his or her

designee) or the Tribal governing body

for the affected area informing him or

her of when the part 71 program or its

delegation would become effective.

Section 71.4(h) proposes that EPA

would be authorized to promulgate and

administer a part 71 program in its

entirety even if only limited deficiencies

exist in a State or Tribal program. The

EPA believes that such authority is
20812 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

necessary because limited deficiencies

could have wide-ranging impacts within

a program. For example, if a State

program failed to provide adequate

opportunities for public or affected State

participation in permitting actions, the

integrity of permit content could

become suspect, the public and affected

States would be excluded from

administrative and judicial review of

permit actions, and EPA oversight of

such actions could suffer, as a result of

citizens not having standing to petition

EPA to object to permits.

Section 71.4(i) of the proposed rule

describes how EPA would take action

on the initial part 71 permits in the

event that a full or partial part 71

program becomes effective in a State or

Tribal area prior to the permitting

authority issuing part 70 permits to all

subject sources. The EPA proposes to

utilize a 3-year transition plan similar to

that required of States under

§ 70.4(b)(11)(ii) of this chapter. Under

proposed § 71.4(i)(1), any remaining

sources that had not yet received part 70

permits from the permitting authority

would be required to submit

applications to EPA for part 71 permits

within 1 year of becoming subject to the

part 71 program. The sources that had

already received part 70 permits, if any,

would continue to operate under those

permits, unless EPA had withdrawn

part 70 approval due to the inadequacy

of the part 70 permits, in which case

those sources would be required to

obtain part 71 permits. After receiving

part 71 permit applications, EPA would

act on one-third of those applications

each year for the first 3 years of the part

71 program. As previously issued part

70 permits needed to be revised or

renewed, sources would apply to EPA

for such revisions or renewals under

part 71.

As provided in proposed § 71.4(j),

EPA would have the discretion to

delegate some or all of its authority to

administer a part 71 program to a State

or eligible Tribe. The delegation process

is described further in the discussion of

proposed § 71.10.

Section 71.(4)(k) of the proposed rule

would authorize EPA to administer and

enforce part 70 permits issued by a

permitting authority under a previouslyapproved part 70 program after EPA has

withdrawn approval of such program

until they are replaced by part 71

permits issued by EPA.

Proposed § 71.4(l) describes what

would happen after EPA approves a part

70 program for an area in which a part

71 program has been effective and how

the Administrator, or the new part 70

permitting authority, will administer

and enforce the part 71 permits until

they are replaced by part 70 permits. For

a State that submits a late part 70

submittal to EPA such that EPA has not

approved or disapproved the submittal

by November 15, 1995, part 71 becomes

automatically effective until the State’s

part 70 program is approved by EPA.

However, sources are not obligated to

submit applications to EPA until 12

months after they have become subject

to an effective part 71 program (unless

an earlier submittal date is set by EPA).

Therefore, if the State’s part 70 program

is approved shortly after part 71 is

effective, it is highly likely that sources

will submit applications to the

permitting authority rather than to EPA.

Upon approval of the part 70 program,

EPA will suspend further action on

applications for part 71 permits. Where

appropriate, applications received by

EPA prior to approval of the part 70

program will be forwarded to the

permitting authority after approval of

the part 70 program.

Finally, proposed § 71.4(m) provides

how EPA would implement the

provision of section 325 of the Act if the

Governor of Guam, American Samoa,

the Virgin Islands, or the

Commonwealth of the Northern Mariana

Islands petitions the Administrator to

exempt any source or class of sources

from the requirements of title V of the

Act.

D. Section 71.5—Permit Applications

Much of proposed § 71.5 is modeled

on the provisions currently promulgated

at 40 CFR 70.5, and on the proposed

revisions to that section. See 59 FR

44460 (Aug. 29, 1994). In this notice,

EPA incorporates by reference the

rationale provided for these provisions,

to the extent such rationale apply to a

Federal operating permit program as

well as to State permit programs. Copies

of the part 70 rule as promulgated in

July 1992 and of the notice proposing

revisions to part 70 have been included

in the docket for this rulemaking. The

Supplementary Information Document

contains a general discussion and

explanation of the proposed rule’s

application requirements. Where

proposed part 71 differs from

promulgated part 70 or the proposed

revisions to part 70 the discussion goes

into greater detail describing the part 71

proposal. Where proposed part 71

follows part 70 precedent, shorter

general descriptions of the part 71

proposal are supplied. It should be

noted that the formatting of proposed

§ 71.5 does not correspond to that of 40

CFR 70.5. In developing proposed part

71, EPA determined that the formatting

of 40 CFR 70.5 could be improved so

that it is easier to follow. The EPA

requests comment on this proposed

formatting difference.

1. Insignificant Activities and Emission

Levels

Proposed § 71.5(g) would allow

insignificant activities or emission

levels to be exempt from the application

content requirements of proposed

§ 71.5(f). These exemptions would

reduce the administrative burden on

sources by eliminating the requirement

that a source include in its application

an extensive analysis of insignificant

activities (or emissions units) and

quantities of emissions. This proposal is

based on the part 70 provisions

regarding insignificant activities and

emissions levels, and is supported by

the Alabama Power decision, where the

court found that emissions from certain

small modifications and emissions of

certain pollutants at new sources could

be exempted from some or all PSD

review requirements on the grounds that

such emissions would be de minimis.

See Alabama Power v. Costle, 636 F.2d

323, 360 (D.C. Cir., 1979). In other

words, EPA may determine levels below

which there is no practical value in

conducting an extensive review. In

general, an agency can create this

exemption where the application of a

regulation across all classes will yield a

gain of trivial or no value. A

determination of when a matter can be

classified as de minimis turns on the

assessment of particular circumstances

of the individual case. For EPA to

establish that an emissions threshold is

trivial and of no consequence, EPA must

consider the size of the particular

emissions threshold relative to the

major source threshold applicable in the

various areas where a regulation will be

in effect.

In the rulemaking establishing

requirements for State operating permits

programs under part 70, many

commenters suggested that EPA create a

de minimis exemption level for

regulated air pollutants, and that

emissions information not be required

for pollutants below this de minimis

level. In the final part 70 rule, EPA gave

States discretion to develop lists of

insignificant activities and to set

insignificant emission levels if certain

criteria were met and subject to EPA

review and approval. In the proposed

part 71 rule, EPA has fashioned

provisions for insignificant activities or

emission levels that meet the minimum

requirements for States under the part

70 rulemaking, while taking a unique

Federal approach, based on the

Agency’s experience in reviewing State

provisions for insignificant activities

and emission levels in the course of part
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20813

70 operating permits program reviews.

The EPA notes, however, that the part

70 provisions on insignificant activities

and emissions levels are the subject of

ongoing litigation settlement

discussions, and that a possible result of

these discussions could be a

modification of the part 70 provisions

on this issue. To the extent any future

proposed revisions to the part 70

insignificant activities and emissions

level criteria are more stringent than the

provisions proposed for part 71, EPA

may have to supplement this proposal

to make the two rules consistent.

In this rulemaking, EPA proposes to

exempt all information required by

proposed § 71.5(f) concerning

insignificant activities inclusion in the

permit application, while for

insignificant emission levels,

application information completeness

requirements would vary from proposed

§ 71.5(f). To ensure that all significant

information is included in the permit

application, the proposed rule includes

a provision stating that no activities or

emission levels shall be exempt from

proposed § 71.5(g) if the information

omitted from the application is needed

to determine or impose any applicable

requirement, to determine whether a

source is major, to determine whether a

source is subject to the requirement to

obtain a part 71 permit, or to calculate

the fee amount required under the fee

schedule established pursuant to

proposed § 71.9. The proposed

prohibition against omitting information

from the application that is relevant to

the determination or imposition of

applicable requirements means that an

activity (or emissions unit) that has

applicable requirements could not be

considered as an insignificant activity or

to have insignificant emission levels.

Applicable requirements in this context

include any standard or requirement as

defined in proposed § 71.2. The

proposed provision that the exemption

not interfere with the requirement to

obtain a part 71 permit is necessary to

insure that all the requirements of the

Act are met, because the requirements of

title V of the Act are not included in the

proposed definition of applicable

requirements. An activity or emission

level could not be insignificant if it

constitutes a major source. An activity

or emission level could not be

insignificant if omitting the emissions

from the application would prevent the

aggregate source emissions from

exceeding the major source threshold or

a threshold that would trigger an

applicable requirement, such as a

modification under section 112(g). This

proposal would further prohibit these

exemptions from being used by

applicants when information needed to

calculate the fee amount required under

the fee schedule would be omitted from

the application. Although the fee

schedule provided in proposed

§ 71.9(c)(1) would exclude insignificant

emissions from being counted for fee

purposes, this provision would be

retained for instances where the

Administrator promulgates a different

fee schedule for a particular state

pursuant to proposed § 71.9(c)(7). Under

such a fee schedule, information

concerning insignificant activities or

emissions may be needed to calculate

the fee amount.

a. Insignificant Activities. To meet the

requirements of part 70, States

submitted rules incorporating a wide

variety of approaches for implementing

these provisions. Many State part 70

program submittals included extensive

lists of insignificant activities. Some of

the listed activities were so broadly

defined that it was difficult to determine

if they would interfere with the

determination or imposition of

applicable requirements or affect major

source status, seemingly inviting the

omission of significant information.

Some were so narrowly defined that

industry would be invited to propose an

endless number of additional listings for

inclusion in the rules in future years,

creating an administrative burden on

the States. In the course of EPA’s review

of part 70 permit program submittals, it

was also clear that there were very few

insignificant activities that are common

among the States. The EPA proposes to

include a short list of broadly-defined

insignificant activities that are

frequently included in State part 70

program submittals. These activities

commonly occur in residential settings,

are not subject to applicable

requirements (with the possible

exception of certain SIP-based

requirements for residential heating

sources that are not commonly adopted

on a nation-wide basis), and normally

have small quantities of emissions.

Emission units at a source that are on

the list of insignificant activities in

proposed § 71.5(g)(1) could not be

treated as insignificant (1) when the

activities are subject to an applicable

requirement, including an applicable

requirement of a Federal or Tribal

implementation plan, (2) if information

concerning the activities would interfere

with any applicability determination,

(3) if the insignificant activities

constitute a major source, (4) if not

counting the emissions from

insignificant activities in the total

source emissions would prevent the

source from being determined to be a

major source, or (5) if any information

that would otherwise be left off of the

permit application would be needed to

calculate the fee amount required under

the fee schedule established under

proposed § 71.9.

b. Insignificant Emission Levels. The

proposal would further allow emission

units or activities with small emissions

to be included in the application in a

streamlined manner, as long as the

application did not exclude information

needed to (1) determine or impose

applicable requirements, (2) determine

the requirement to obtain a permit, (3)

determine whether the source is a major

source, or (4) calculate the fee amount,

and provided the emissions caps of

proposed § 71.5(g)(2) were not

exceeded. The EPA believes that this

would ensure that enough information

will be provided that the permitting

authority can make a quick assessment

of whether the emissions are

insignificant. Nevertheless, to ensure

that the rule is being applied properly

by the applicant, the permitting

authority could request additional

information if needed. Note that to

qualify as insignificant emissions, the

emissions could not count toward or

trigger a unit-based de minimis permit

revision under proposed § 71.7(f). The

only emissions units that would have

emissions levels qualifying as

insignificant under proposed § 71.5(g)

would be units that would not be

included in the part 71 permit anyway

because they could not be subject to

applicable requirements, contribute to

the triggering of an applicable

requirement, or affect a major status

determination. Therefore, for existing

units with insignificant emissions there

would not be any permit terms or

conditions to revise and for new units

with insignificant emissions there

would not be any permit terms or

conditions to add to the part 71 permit.

The emissions caps of proposed

§ 71.5(g)(2) are expressed in terms of

potential to emit, not actual emissions.

The use of potential to emit is consistent

with how major source thresholds

(which were used in developing the

proposed caps) are defined.

Furthermore, EPA believes that basing

the caps on potential to emit provides

greater assurance that only truly

insignificant levels of emissions would

be eligible for streamlined treatment on

the permit application form.

In commenting on the necessity of de

minimis levels to be established in the

part 70 rulemaking, one commenter

suggested the level be set at 5 tpy or 20

percent of the applicable major source

threshold. An examination of these
20814 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

levels in terms of major source

thresholds is necessary to determine if

they are trivial. For example, a 5-ton

emission is 20 percent of the major

source threshold for serious and severe

ozone nonattainment areas, but 50

percent of the major source threshold in

extreme ozone nonattainment areas. A

level set at 20 percent of the applicable

threshold would equal 2 tons in extreme

ozone nonattainment areas, but would

be 20 tons in moderate nonattainment

areas. It is not clear that emissions of

this size could be characterized as

trivial in all areas for all air pollutants,

especially because emissions at these

levels may trigger State major new

source review (NSR), thus triggering

applicable requirements.

Therefore, EPA is proposing and

soliciting comment on setting the

threshold for insignificant emission

levels at 1 tpy for regulated air

pollutants, except HAP, in all areas

except extreme ozone nonattainment

areas, where the threshold is proposed

to be 1,000 pounds (lb) per year. These

levels would be 1 percent of the major

source threshold in moderate

nonattainment areas, 2 percent in

serious ozone nonattainment areas, 4

percent in severe ozone nonattainment

areas, and 5 percent of the threshold in

extreme ozone nonattainment areas. The

EPA believes that these levels are trivial

and would not prevent EPA from

collecting any information of a

consequential or significant nature. The

lower threshold for extreme ozone

nonattainment areas is necessary due to

the increased concern that permitting

authorities would have in such areas.

Permitting authorities in these areas

have collected information pertaining to

permitted sources with relatively small

emissions. This level of concern has

been necessary in order to achieve

emission reductions sufficient to make

progress towards meeting the NAAQS.

The EPA proposes and solicits

comment on setting the exemption

threshold for HAP for any single

emissions unit to be the lesser of 1,000

lb per year or the de minimis levels

established under section 112(g) of the

Act. In the part 70 rulemaking, EPA

recommended that the emissions levels

for HAP established for the purpose of

setting insignificant emission levels not

be less stringent than the levels

established for modifications under

section 112(g) of the Act. Although this

was only a recommendation, many

States structured their emissions levels

for HAP using these levels as upper

bounds. Note that the provisions of

proposed § 71.5(g) would prevent a part

71 emissions unit from having

insignificant emissions levels if the unit

was subject to applicable requirements

of section 112(g). The EPA also proposes

that the level for HAP should never be

higher than 1,000 pounds per year. This

is necessary because the major source

threshold is 10 tpy for a single HAP,

thus ensuring that insignificant

emissions of HAP will never exceed 5

percent of the major source threshold.

The EPA believes that these levels are

trivial and would not prevent EPA from

collecting any information of a

consequential or significant nature.

The EPA proposes and solicits

comment on setting the threshold for

insignificant emissions for the aggregate

emissions of any regulated air pollutant,

excluding HAP, from all emission units

located at a facility to not exceed a

potential to emit of 10 tpy, except in

extreme ozone nonattainment areas,

where potential to emit may not exceed

5 tpy. The EPA further proposes and

solicits comment on setting the

threshold for insignificant emissions

levels for the aggregate emissions of all

HAP from all emission units located at

a facility to not exceed a potential to

emit of 5 tpy or the section 112(g) de

minimis levels, whichever is less. These

provisions would provide more

certainty to the permitting authority

because no emissions values in terms of

potential or actual emissions would be

required to be included in the

application for emissions qualifying as

insignificant, and it is conceivable that

large quantities of emissions could be

hidden from scrutiny without such

aggregate emission thresholds. In

addition, these provisions would clarify

for applicants that large numbers of

similar sources, such as valves or

flanges, that might be exempt on an

individual basis, would have to be

described in detail in the application if

the aggregate emissions from all the

units are relevant to the applicability of

the Act’s requirements or the

determination of major source status.

Minimal information concerning

emissions units with insignificant

emissions would have to be provided in

a list in the application. This list would

have to describe the emission units in

sufficient detail to identify the source of

emissions and demonstrate that the

exemption applies. For example, the

description ‘‘space heaters’’ on a list

may not provide sufficient information

because there could be an unlimited

number of units with potentially

significant emissions, but the

description, ‘‘two propane-fired space

heaters,’’ places a limit on any estimate

of emissions and would provide enough

information. Descriptions may need to

specify not only the number of units

meeting the description, when more

than one unit is included under a single

description, but in many cases capacity,

throughput, material being processed,

combusted, or stored, or other pertinent

information may need to be provided.

For example, ‘‘storage tank’’ would be

insufficient, but ‘‘250-gallon

underground storage tank storing

unleaded gasoline, annual throughput

less than 2,000 gallons,’’ would be

sufficient for quick assessment, because

this level of information is sufficient to

demonstrate whether any applicable

requirements apply and that the 1 tpy

emissions cap would most likely not be

exceeded.

Emissions units (or activities) with

insignificant emissions that might be

logically grouped together on the list

that would be required by proposed

§ 71.5(g)(2) but that have dissimilar

descriptions, including dissimilar

capacities or sizes, would be required to

be listed separately in the application.

This is necessary to prevent large

numbers of emissions units from being

grouped together on the list in such a

way that the description would be too

broad to provide sufficient information

to identify the emissions units and

provide an indication of whether or not

the exemption applies. On the other

hand, in certain cases, large numbers of

certain activities could be grouped

together on the list. For example, a

complex facility may have hundreds of

valves and flanges where the aggregate

potential to emit of all the valves and

flanges does not exceed the aggregate

emissions cap and there are no

applicable requirements that apply to

the valves and flanges. In this case, it

would most likely be appropriate to list

all the valves and flanges together as

one listed item, including the number of

units meeting the exemption.

The EPA solicits comment on the

approach regarding insignificant

activities and emission levels proposed

in this notice, particularly on whether

this approach provides greater clarity

than that discussed in promulgated part

70, and whether the approach proposed

in this notice would be compatible with

the approaches developed by States to

date. The EPA also solicits comment

regarding whether the approach

proposed today provides adequate

safeguards to insure that part 71 permit

applications do not exclude significant

information, especially all information

necessary to determine applicability of

Act requirements and major source

status.

2. Cross Referencing Information in the

Application

The permitting authority could allow

the application to cross-reference
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20815

relevant materials where they are

current and clear with respect to

information required in the permit

application. Such might be the case

where a source is seeking to update its

title V permit based on the same

information used to obtain a NSR permit

or where a source is seeking renewal of

its title V permit and no change in

source operation or in the applicable

requirements has occurred. Any crossreferenced documents would have to be

included in the title V application that

is sent to the permitting authority and

that is made available as part of the

public docket on the permit action.

3. Application Completeness

Determinations

As provided by proposed § 71.5(c), a

complete application would be one that

the permitting authority has determined

contains all the information needed to

begin processing. The preamble to the

proposed revisions to part 70 discusses

two options for providing flexibility

when determining application

completeness. The first option addresses

applications for sources with futureeffective compliance dates, and the

second option addresses the submittal

of less detailed applications for sources

that are scheduled to be permitted in the

second and third years of the initial

phase-in of a part 70 program. See 59 FR

44460 (Aug. 29, 1994).

Although the regulatory language

concerning completeness

determinations in the part 71 proposal

is consistent with the regulatory

language in the proposed part 70

revisions, EPA is not anticipating

revising the proposed part 71 regulatory

language to specifically implement

either of the flexibility options

discussed in the preamble to the

proposed revisions to part 70. As EPA

is not as familiar with sources as State

and local permitting authorities, EPA is

not in a position to adequately quality

assure applications that apply such

flexibility options. Thus, the use of such

flexibility options in determining

application completeness could increase

the risk of inappropriate completeness

determinations by EPA, as well as

increase EPA’s administrative burden.

As a result of this concern, EPA is not

proposing to provide for the flexibility

options described in the preamble to the

revisions to part 70, but solicited

comment on this position in the part 71

proposal.

E. Section 71.6—Permit Content

Many of the proposed provisions of

§ 71.6 follow the provisions of 40 CFR

70.6, which were described and

discussed at length in the proposed and

final preambles to 40 CFR part 70, and

in the recently proposed revisions to

part 70. This notice incorporates the

rationale provided in the part 70 notices

by reference, as appropriate. This

discussion focuses on those provisions

that are affected by the legal challenges

to the part 70 rule and those issues for

which the approach proposed to be

taken in part 71 differs from that taken

in part 70 or the proposed revisions

thereto.

The provisions of proposed § 71.6

have been formatted differently than

those in 40 CFR 70.6 to consolidate the

provisions related to compliance and to

make the section easier to follow. The

EPA solicits comment on the proposed

formatting change.

1. Prompt Reporting of Deviations

Like part 70, proposed part 71 would

require that each permit contain

provisions for prompt notification of

deviations. In both cases, the definition

of ‘‘deviation’’ is consistent with the

definition of deviation in the proposed

enhanced monitoring rule. However,

part 71 proposes to define ‘‘promptly’’

for purposes of reporting deviations

from federally-issued permits.

Under this proposal and the proposed

enhanced monitoring rule, deviation

means any of the following conditions:

Where emissions exceed an emission

limitation or standard; where process or

control device parameter values

demonstrate that an emission limitation

or standard has not been met; or where

observations or data collected

demonstrates noncompliance with an

emission limitation or standard or any

work practice or operating condition

required by the permit. These

conditions (except in cases where

provisions that exempt such conditions

from being federally enforceable

violations have been promulgated or

approved by the Administrator) would

be deemed deviations from part 71

permit requirements and would require

prompt reporting to the permitting

authority.

Part 71 sources would be required to

promptly notify the permitting authority

of any deviations. Under part 71,

promptly has more than one meaning.

This follows the model established in

part 70. Where the underlying

applicable requirement contains a

definition of prompt or otherwise

specifies a time frame for reporting

deviations, that definition or time frame

shall govern. Where the underlying

applicable requirement fails to address

the time frame for reporting deviations,

prompt is defined differently depending

on the type of pollutant emitted. For

deviations concerning a HAP or toxic air

pollutant that exceed a permit

requirement for at least a one hour

duration, prompt reporting would be

defined as within 24 hours. Sources

emitting other regulated air pollutants at

levels that exceed permit requirements

for at least two hours would be required

to report the deviation within 48 hours.

The EPA recognizes that there are

other notification requirements that

have been established under other

statutes that require sources to provide

immediate notification of releases of

specific chemicals in reportable

quantities to agencies other than EPA

and State permitting authorities.

Generally these notifications apply to a

potential emergency situation such as

those requirements in CERCLA and

SARA title III. In addition, pursuant to

section 112(r), the Chemical Safety and

Hazards Investigation Board has the

authority to develop regulations for

reporting accidental releases of section

112(r) substances. If a reporting

regulation is established, it would

become an applicable requirement on

the source. The EPA stresses that

sources must comply with such notice

requirements even if they have provided

notice to the permitting authority

pursuant to proposed § 71.6(f)(3).

Failure to provide notices required by

these other statutes and their

implementing regulations may result in

enforcement actions and penalties.

Because the emissions from sources

could cover a very large spectrum with

a wide range of health effects, the

permitting authority may also define in

the permit the concentration and time

duration of a deviation that must be

reported promptly and the schedule for

such reporting.

Sources may notify the permitting

authority of a deviation by telephone or

facsimile within their required time

schedule, and must then submit

certified written notice within ten

working days. All deviations would still

have to be included in monitoring

reports which would be required to be

submitted at least every 6 months or

more frequently if required by another

applicable requirement (e.g., NSPS or

enhanced monitoring).

2. General Permits

Proposed § 71.6(l) would implement

section 504(d), which authorizes the

permitting authority to issue a ‘‘general

permit covering numerous similar

sources.’’ The approach proposed for

part 71 would follow that of part 70 and

the recently proposed revisions thereto.

In response to the concerns raised in

the legal challenges to the part 70 rule,

EPA has reevaluated its approach to
20816 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

providing for public participation for

general permits.

In the most recent part 70 proposal,

the following items concerning general

permits were proposed: (1)

authorization to operate under a general

permit is a final action subject to

judicial review; and (2) the permitting

authority is required to notify the public

of sources who have been authorized to

operate under a general permit. The

latter action could be done as a monthly

summary. Proposed § 71.6 follows the

approach of the recent part 70 proposal

for general permits.

3. Emergency Defense

As provided in proposed § 71.6(o),

part 71 permits could contain permit

terms that provide that a source can

establish an affirmative defense to an

enforcement action based on

noncompliance due to an emergency.

The affirmative defense would not

apply to permit terms other than

technology-based emission limitations

(e.g., MACT standards) and would not

apply unless the source provides

appropriate documentation as specified

in proposed § 71.6(o)(3). The emergency

defense would be independent of any

emergency or upset provision contained

in an applicable requirement.

Although part 71 permits could

contain provisions for an emergency

defense, EPA notes that sources that

produce, process, handle or store a

listed substance under section 112(r) or

any other extremely hazardous

substance nonetheless have a general

duty in the same manner and to the

same extent as section 654, title 29 of

the United States Code, to identify

hazards assessment techniques, to

design and maintain a safe facility, and

to minimize the consequences of

accidental releases.

The EPA is reevaluating the

provisions in parts 70 and 71 relating to

the emergency defense in light of

concerns identified in legal challenges

to the part 70 rule. The EPA may

propose revisions to the part 70 and part

71 sections providing for the emergency

defense before EPA would include such

defense in any part 71 permits. In the

interim, to ensure consistency with

currently promulgated part 70, EPA

would include in part 71 provisions

allowing permit terms to establish an

emergency defense.

4. Operational Flexibility

Section 502(b)(10) of the Act requires

that the minimum elements of an

approvable permit program include

provisions to allow changes within a

permitted facility without requiring a

permit revision. In the current part 70

rule, EPA included three different

methods for implementing this

mandate. However, in response to

concerns raised by petitioners and State

permitting authorities charged with

implementing part 70, EPA recently

proposed to revise part 70 to eliminate

one of those methods and clarify the

operation of the others. Today’s part 71

proposal adopts the same approach to

operational flexibility as discussed in

the proposed revision to part 70. The

rationale for EPA’s position on

operational flexibility is set out in the

proposed revisions to part 70 (59 FR

44460 (Aug. 29, 1994)), which today’s

notice incorporates by reference.

5. Referencing of Requirements

Petitioners in the part 70 litigation

have asked EPA for clarification on the

subject of data that may be referenced

but not included in the permit.

In the recently proposed revisions to

part 70, EPA has indicated that some

referencing might be appropriate, and

has requested comment on whether

referencing should be allowed for: (1)

test methods, (2) definitions, (3) startup,

shutdown, or malfunction requirements

or plans, and (4) detailed emission

calculation protocols. The EPA solicits

comments on referencing for part 71

permits.

F. Section 71.7—Permit Review,

Issuance, Renewal, Reopenings, and

Revisions

This section of the preamble describes

EPA’s proposed regulations governing

permit issuance, renewal, reopening,

and revision procedures under part 71.

Generally, under a part 71 program such

procedures would follow the procedures

in the currently promulgated part 70

rule, as recently proposed to be revised.

See 40 CFR 70.7 and 59 FR 44460 (Aug.

29, 1994). To the extent part 71 would

follow the procedures in existing part 70

and the proposed revisions thereto, this

notice incorporates the rationale for

those procedures by reference. Where

possible, EPA believes it is appropriate

to model part 71 procedures on those

required by part 70, in order to promote

national consistency between the title V

permit programs that will be

administered throughout the country.

National consistency will ensure that

sources are not faced with substantially

different programs when EPA, as

opposed to State agencies, is the

permitting authority. Moreover, as most

part 71 programs are likely to be of

limited duration, consistency with part

70 will enable smooth transition

between Federal and State programs,

encourage States to take delegation of

administration of part 71 programs, help

States that have been unable to obtain

part 70 approval to phase into the title

V program, promote uniformity in

public and affected State participation,

and provide a level playing field for

sources.

In certain respects, the procedures

under proposed part 71 would vary

from the procedures in part 70. This is

usually due to the fact that EPA, as a

Federal permitting authority, will not be

implementing State air programs in

general when it assumes title V

responsibilities. Consequently, certain

opportunities under part 70, such as

new source review merged with title V

permit revision procedures, would not

be available where EPA is the

permitting authority. However, where a

State takes delegation of the

administration of a part 71 program,

some of these opportunities would be

available. These variations are discussed

in the relevant sections of the

discussion below. In other cases, where

part 70 and the proposed revisions

thereto provide States with flexibility to

decide among alternative approaches or

define specific elements of permit

program procedures in developing their

State programs, part 71 would decide

these issues in the regulation itself,

rather than rely upon further program

development. Moreover, in today’s

notice EPA proposes detailed

procedures for permitting actions,

similar to those found at 40 CFR part

124 governing other permit programs

administered by EPA.

1. Permit Issuance and Renewal

Part 71 would generally follow the

currently promulgated part 70, as

proposed to be revised in the August 29,

1994, Federal Register notice, in

establishing procedures for permit

issuance and renewal. These procedures

are set forth in proposed § 71.7(a)–(c)

and are discussed in greater detail in

section 3–F–1 of the Supplementary

Information Document.

In certain respects, part 71 would

differ from part 70 and the proposed

revisions thereto. For example, part 71

permitting authorities would be

required to provide EPA with

statements describing the legal and

factual basis for draft permit terms only

where the part 71 program has been

delegated to a State or Tribal agency for

administration. Also, only in cases

where EPA has delegated part 71

administration to a State or Tribal

agency would EPA would reserve the

right to terminate or revoke and reissue

a permit when the delegate permitting

authority is not taking appropriate

action to expeditiously process a permit

renewal application.
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20817

2. Permit Revisions

Proposed §§ 71.7(d)–(h) would govern

how permits are revised under part 71

programs. These procedures would

generally follow the 4-track system

contained in the recently proposed

revisions to part 70. However, certain

aspects of the 4-track system would not

be available unless EPA had delegated

administration of a part 71 program to

a State or eligible Tribal agency.

Moreover, where the proposed revisions

to part 70 would leave it to State

discretion to decide certain issues on a

program-by-program basis, part 71

would contain specific provisions.

Where the permit revision procedures

under part 71 would differ from those

under proposed part 70, the rationale for

those differences is provided in detail.

Where the procedures under part 71

would be the same as those under the

proposed part 70 4-track system, this

notice incorporates by reference the

rationale for those provisions contained

in the notice for the proposed revisions

to part 70. See 59 FR 44460 (Aug. 29,

1994). The part 71 permit revision

procedures are discussed in greater

detail in section 3–F–2 of the

Supplementary Information Document.

The EPA wishes to stress that in first

describing this permit revision structure

in the proposed revisions to part 70, the

Agency solicited comments on ways to

simplify what is admittedly a complex

system. In light of the extensive

comments received concerning the

complexity of the proposal, EPA will

publish a supplemental proposal

covering part 70 permit revision

procedures that differs from the August

29, 1994 proposal. The supplemental

proposal is expected to be published

within a few months of the publication

of today’s part 71 proposal and has not

been developed in time to be

incorporated into today’s proposal.

After the new part 70 procedures are

proposed, EPA will most likely need to

publish a supplemental proposal for

part 71 pertaining to permit revision

procedures. If so, EPA would finalize

other portions of the rule first in order

to be able to administer part 71

programs by November 15, 1995. The

EPA expects to promulgate the part 70

permit revisions procedure in time to

adjust corresponding sections of

proposed part 71, as appropriate, before

EPA would receive any applications for

permit revisions under a part 71

program.

a. Administrative Amendments. The

provisions governing administrative

amendments to part 71 permits would

be located at proposed § 71.7(e). Today’s

proposal would follow existing part 70

in allowing changes that are generally

clerical in nature to be made pursuant

to administrative amendment

procedures. Also, like the proposed

revisions to part 70, part 71 would allow

increases in the frequency of required

testing, monitoring, recordkeeping and

reporting to be incorporated through the

administrative amendment process.

While part 70 provides a subsequent

opportunity for identifying other

changes similar to those just described

for processing as administrative

amendments in the program approval

stage, part 71 would not, simply because

after promulgation of this rule there

would be no further stage of part 71

program development.

Where EPA has delegated

administration of a part 71 program to

a State or eligible Tribe, part 71 would

follow the recent proposed revisions to

part 70 by allowing changes that

undergo ‘‘merged’’ part 71/NSR or part

71/section 112(g) process to be

incorporated into the part 71 permit as

administrative amendments. For

purposes of part 71, this opportunity to

follow proposed part 70 would exist

only where States or eligible Tribes take

delegation of the part 71 program. When

administering a part 71 program for a

State, EPA would not also be

implementing the State’s

preconstruction program, so EPA would

not be able to upgrade the State’s

preconstruction program to part 71

process. While this eliminates a

significant opportunity for streamlined

permit revision where EPA is acting as

the permitting authority, EPA believes

that it is infeasible for EPA to merge

preconstruction review and part 71

review unless the same permitting

authority processes both actions.

Moreover, to the extent States take

delegation of part 71 programs, this

opportunity for flexibility will be

present. The EPA solicits comment on

the proposed limited availability of

merged processing under part 71 and

suggestions for ways in which this

merged processing could be more

feasibly provided.

In delegation agreements, EPA and

delegate agencies could agree that

delegate agencies could conduct merged

processing on a case-by-case basis. That

is, delegate agencies could be

authorized to provide merged process

for all or some of their preconstruction

determinations or to allow sources to

elect merged process for only individual

changes. Delegate agencies that

provided merged process on only a casespecific basis would have to state when

they are doing so in the initial

notification of the permit action sent to

EPA. A delegate agency that wished to

provide for merged NSR changes would

have to set out the eligibility criteria and

process for merged NSR changes in its

application for delegation to EPA.

Depending on existing State statutory or

regulatory provisions, no changes would

be required to existing NSR programs.

While under the proposed revisions to

part 70 EPA would require States to

submit eligibility criteria for merged

processing in their part 70 programs that

EPA would review in the context of

program approval, EPA believes that the

process in part 71 for applying for

delegation and entering into delegation

agreements provides an adequate forum

for evaluating a delegate agency’s ability

to provide merged processing. Similarly,

EPA believes that delegation agreements

are adequate vehicles for establishing a

delegate agency’s authority to merge

preconstruction and part 71 actions on

a case-by-case basis. The delegation

process requires the State to submit

evidence of adequate statutory and

regulatory authority to carry out part 71

responsibilities, and EPA would publish

delegation agreements in the Federal

Register, giving notice of the delegate

agency’s authorization to provide for

merged processing.

Consistent with the proposed

revisions to part 70, part 71 would allow

administrative amendment procedures

to be used to incorporate standards

promulgated after permit issuance

pursuant to section 112 of the Act.

For all changes that qualify as

administrative amendments, the part 71

permitting authority would use specific

procedures to incorporate those changes

into the permit. Generally, these

procedures would follow those

contained in the August 29, 1994,

proposed revisions to part 70, but would

differ in certain respects. For example,

the part 71 permitting authority would

be required to provide EPA with a copy

of the effective permit addendum

reflecting the change only where EPA

has delegated a part 71 program to a

State or eligible Tribe.

b. De Minimis Permit Revisions.

Following the proposed revisions to part

70, EPA is proposing at § 71.7(f) a de

minimis permit revision track in part 71

for changes that do not undergo merged

program administrative amendment

procedures but that have only a small

emissions impact. Under this track, a

source would be able to operate the

change as early as the day it submits its

permit revision application. Public and

affected State review of the change

would then follow. See the more

detailed discussion in section 3–F–2–b

of the Supplementary Information

Document, as well as the Agency’s

preamble for the proposed revisions to
20818 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

part 70 (59 FR 44460, Aug. 29, 1994)

regarding the types of changes that

would be eligible for this process, the

details of the process itself, and the

rationale for the creation of this revision

track.

In certain respects, the de minimis

track in part 71 would differ from that

in proposed part 70. For example, a

person who was unsuccessful in

persuading the part 71 permitting

authority to disapprove a source’s

requested de minimis change could not

petition EPA to object to the permit.

This is because both when EPA is the

permitting authority and when EPA has

delegated that responsibility, citizens

will already have the opportunity to

directly appeal the final de minimis

permit revision to the Environmental

Appeals Board. Thus, requiring an

intermediate step of requesting EPA to

object to its own permitting action

would both be redundant and delay

citizen access to administrative, and

ultimately judicial, review of the

change. The Agency solicits comment

on this approach. While the proposed

revisions to part 70 would leave States

discretion in developing their part 70

programs in determining whether the

source, versus the State permitting

authority, would have the responsibility

to provide public notice of de minimis

changes, under part 71, sources would

have that duty. This specificity is due to

the fact that EPA, unlike States, will not

be conducting further program

development for part 71 programs

beyond promulgating part 71, so it is

necessary for EPA to establish in this

rule whether the public notification

duty will fall on sources or the

permitting authority. The EPA proposes

to place the public notice responsibility

on sources because the Agency believes

that sources will be in a better position

to provide timely notice of their de

minimis changes than EPA regional

offices would be and will have more

ready access to area newspapers for

providing such notice. Consequently,

requiring sources to provide notice

should ensure that de minimis changes

are expeditiously processed. Moreover,

EPA believes that under the proposed

revisions to part 70, revised State

programs could commonly require

sources to provide such notice, and

consistency in implementation of de

minimis permit revision procedures will

aid program transition when States

obtain part 70 approval or when EPA

assumes permitting responsibilities.

As under the proposed revisions to

part 70, the scope of de minimis

changes would be defined in two ways.

Any change at a small emissions unit

(‘‘unit-based’’ de minimis) would

qualify, as would a small change at a

large unit (‘‘increment-based’’ de

minimis), provided certain conditions

designed to ensure the enforceability of

the resulting permit limit were met.

Unlike the proposed revisions to part

70, for part 71 EPA is not proposing that

permitting authorities, whether they are

EPA or delegate States or eligible Tribes,

could establish alternative de minimis

emissions thresholds based on a

demonstration submitted subsequent to

final promulgation of part 71. This is

because, again, after promulgation of

part 71, EPA will not be further

developing part 71 programs, so there

will not be an opportunity to consider

alternative de minimis thresholds.

Moreover, EPA does not believe that

EPA delegation of part 71

administration to States or eligible

Tribes provides an adequate forum for

evaluating alternative thresholds

developed by States or eligible Tribes,

since there will be no formal approval

action in those delegations and the

public will not have an opportunity to

comment upon them before they are

effective.

Procedurally, part 71 would also

provide more specificity than would the

proposed revisions to part 70. For

example, the source could operate the

requested de minimis change 7 days

after the permitting authority received

the application or, with the permitting

authority’s permission, as early as the

day its application is submitted. The

proposed revisions to part 70 provide

that States in developing their part 70

programs would have discretion to

allow changes to be made 7 days

following receipt of the application, and

such authorization would be included

in their program submittals for EPA

approval; as discussed above, since

promulgation of part 71 will represent

the final stage of part 71 program

development, proposed part 71 specifies

that sources could make de minimis

implement changes after 7 days.

Also, under part 71, sources would be

required to provide public notice of de

minimis changes on a monthly, batched

basis, publishing one notice listing all

changes at the source for which

applications for de minimis permit

revisions had been sent to the

permitting authority in the preceding

month. The EPA solicits comment on

this approach, particularly regarding the

extent to which States intend to impose

the public notification duty on sources

under the proposed revisions to part 70.

While the proposed revisions to part 70

specified neither who has the

responsibility for providing public

notice nor the manner in which public

notice should be given, part 71 would

be specific on these points, for the

reasons discussed above. The EPA

solicits comment, however, on the

method or methods sources could use to

provide such notice. For example,

sources could be required to publish

notice of de minimis changes in a

newspaper of general circulation within

the area where the source is located or

in State or local governmental

publications, to send actual notice to

interested persons on a list developed

by the source or the permitting

authority, or both. At minimum, the

final rule will provide a mechanism to

ensure that public notice reaches all

interested citizens.

c. Minor Permit Revisions. Under

today’s proposal, most changes

ineligible for administrative amendment

or de minimis permit revision

procedures would be eligible for the

minor permit revision process. Taking

the current part 70 rule’s minor permit

modification process as a starting point

and following the proposed revisions to

part 70, proposed part 71 would add

expedited procedures for providing

public notice and a 21-day comment

period, allow the source to operate the

requested change at the end of the 21-

day comment period when no

objections are received, and provide for

permitting authority final action to be

taken on applications within 60 days of

their receipt. The description of and the

rationale for EPA’s proposed minor

permit revision process for part 70 is

contained in the preamble to the

proposed revisions to part 70 (see 59 FR

44460, Aug. 29, 1994). To the extent

applicable to part 71, EPA incorporates

that rationale for this notice. However,

where elements of the minor permit

revision track differ in proposed part 71

from those in part 70, this notice

describes those differences. A more

detailed discussion of the part 71 minor

permit revision process is contained in

section 3–F–2–c of the Supplementary

Information Document.

For part 71 minor permit revisions, as

for de minimis changes and merged

program administrative amendments,

notice to EPA, and EPA’s 45-day review

period and opportunity to veto would

occur only where EPA had delegated its

role as the permitting authority to a

State or eligible Tribe. While this is a

departure from the proposed revisions

to part 70, as discussed previously, EPA

does not believe there is any utility,

when EPA is the permitting authority,

in requiring EPA review of EPA

permitting action, since sources,

affected States and public citizens that

object to EPA permitting actions will be

able to directly appeal those decisions

to the Environmental Appeals Board.
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20819

Consequently, providing for an

additional step of EPA review and

opportunity to object would

unnecessarily slow down this expedited

revision track and would also delay

access of interested parties to

administrative and judicial review.

Moreover, in cases of objections to

minor permit modifications filed by

affected States, only where EPA had

delegated part 71 administration to a

State or eligible Tribe would the part 71

permitting authority have to forward to

EPA a written response to any of these

objections that were not accepted.

Another difference under the part 71

program would be that if the permitting

authority failed to act on a public

objection, the commenter could file suit

in Federal court, rather than State court,

to force the permitting authority to take

action on the written comment. In

addition, commenters would be able to

bring suit in Federal court to seek an

injunction against the source

implementing or continuing to

implement requested changes before

they are approved. Injunctive relief

would be available in accordance with

applicable standards for obtaining such

relief under Federal law.

Also, only where EPA had delegated

a part 71 program to a State or eligible

Tribe, would the part 71 permitting

authority be required to wait until the

date after EPA’s 45-day review period

had expired, provided EPA had not

objected, before issuing the final minor

permit revision. The delegate agency

would be required to take final action by

day 60, or 15 days after the close of

EPA’s review period, whichever is later.

In addition, under part 71 programs,

commenters may not petition EPA to

object to minor permit revisions for the

reasons discussed above with respect to

de minimis permit revisions.

d. Significant Permit Revisions.

Following the proposed revisions to part

70, under proposed part 71 the

significant permit revision process

would essentially follow that of the

significant permit modification track in

existing part 70. See the description of

this process in the Agency’s proposed

revisions to part 70 (59 FR 44460, Aug.

29, 1994) for the rationale for this

approach, which EPA incorporates by

reference for purposes of part 71. See

also the more detailed description of the

part 71 significant permit revision

process contained in section 3–F–2d of

the Supplementary Information

Document.

Proposed part 71 would require the

permitting authority to take final action

on applications for significant permit

revisions within 18 months of receipt of

the application. However, because

prompt action on permit revisions is of

critical importance to industry, the EPA

intends to complete such revisions

within 12 months and expects that only

the most complex revisions would

require more than a year to complete.

e. Alternative Option for Monitoring

Changes. Following the proposed

revisions to part 70, EPA also proposes

as an option in part 71 alternative

provisions governing changes involving

monitoring requirements. While this

option essentially adheres to the 4-track

system discussed above, certain

provisions of the system would need to

be modified to incorporate the

alternative option for monitoring

changes. The rationale for this

alternative option is discussed in detail

in the preamble to the proposed

revisions to part 70 (see 59 FR 44460,

Aug. 29, 1994), and this notice

incorporates that rationale by reference,

to the extent it is applicable to part 71.

As appropriate, EPA intends to match in

the final part 71 rule the final part 70

provisions regarding this option. For a

more detailed discussion of this option

under part 71, see section 3–F–2–e of

the Supplementary Information

Document.

Under part 71, the source, rather than

the permitting authority, would have

the responsibility to provide monthly

batch public notice of monitoring

changes processed under this option’s

de minimis permit revision track.

Moreover, for monitoring changes

processed under this option’s significant

permit revision track, part 71 permitting

authorities would be required to send

demonstrations and their evaluations to

EPA only where EPA has delegated part

71 program administration. Again, EPA

believes that expeditious process of de

minimis permit revisions is better

served by sources providing notice, and

that the non-permitting authority EPA

review and veto role adds value to the

permitting process only where there is

a separate entity such as a delegated

State functioning as the part 71

permitting authority.

3. Incorporation of New Standards

The process by which EPA proposes

to incorporate into permits new MACT

standards promulgated under section

112 would follow that contained and

discussed in detail in the proposed

revisions to part 70 (see 59 FR 44460,

Aug. 29, 1994). This notice incorporates

by reference the rationale for this

process contained in the preamble to the

proposed revisions to part 70. To the

extent appropriate, EPA intends the

final part 71 rule to be consistent with

the part 70 rule as it is finally

promulgated. For a more detailed

discussion of this process for purposes

of part 71, see section 3–F–3 of the

Supplementary Information Document.

Note that under a delegated part 71

program, if EPA receives the initial

notification because the MACT standard

has not yet been delegated to the State,

local or Tribal agency, EPA will send

this notice to the delegate part 71

permitting authority, and upon receipt

of this notice the permitting authority

could begin processing the

administrative amendment. Also, under

delegated part 71 programs, where the

NSR programs have been enhanced to

meet part 71 requirements, minor and

major NSR actions would be acceptable

for addressing and establishing part 71

permit conditions needed to assure

compliance with MACT standards.

Thus, the merged preconstruction

review process applying to NSR permits

could also be used to revise the part 71

permit to incorporate the MACT

requirements applicable to the source. If

the NSR action were not merged (as

would be the case if EPA had not

delegated part 71 administration to a

State or eligible Tribe), the part 71

revision would be eligible under the

minor permit revision track, or, if it met

the criteria, the de minimis permit

revision track.

4. Permit Reopenings

Under proposed § 71.7(i), part 71

would follow the currently promulgated

part 70 in providing when and how

permits would be reopened. For a more

detailed discussion of the part 71 permit

reopening procedures, see section 3–F–

4 of the Supplementary Information

Document. Where EPA has delegated a

part 71 program to a State or eligible

Tribe, special provisions for EPA

notification to the delegate agency that

cause exists to reopen would apply.

These procedures follow those in

existing part 70 for notification to

approved part 70 permitting authorities.

Briefly, if EPA finds that cause exists to

reopen a permit, it would notify the

delegate agency and the source. The

delegate agency would have 90 days

after receipt of this notice to forward to

EPA a proposed determination of

termination, revision, or revocation and

reissuance of the permit. The EPA could

extend the 90-day period for an

additional 90 days if a new application

or additional information is necessary.

The EPA could then review the

proposed determination for 90 days. If

the delegate agency fails to submit a

determination or if EPA objects to the

determination, EPA may terminate,

revise, or revoke and reissue the permit

after providing the source at least 30

days written notice and an opportunity
20820 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

for comment and a hearing on EPA’s

proposed action.

G. Section 71.8—Affected State Review

Following the proposed revisions to

part 70, proposed § 71.8 would

implement section 505(a)(2) of the Act

and require that the permitting authority

provide notice to all affected States (as

defined in proposed § 71.2) of each draft

permit and addenda to permits that

incorporate de minimis permit

revisions. Under the proposed

procedures for minor permit revisions,

sources, rather than permitting

authorities, would have the

responsibility to provide notice to

affected States for such changes.

Affected States are those States whose

air quality may be affected, and that are

contiguous to, the State in which a part

71 permit, permit revision, or permit

renewal is being proposed, or those

within 50 miles of the source. Tribal

areas or areas under the jurisdiction of

a local air pollution control area may be

considered affected States in some

cases.

Affected States that receive notice

pursuant to proposed § 71.8 could

submit written recommendations and

comments to the permitting authority. If

the permitting authority refuses to

accept the recommendations, the

reasons for the refusal would have to be

provided in writing to the affected

State(s) that provided the

recommendations or comments during

the public or affected State review

period.

H. Section 71.9—Permit Fees

1. Authority to Impose Fees

The EPA believes that title V provides

EPA the authority to charge sources fees

whenever EPA is required to administer

a part 71 program. Section

502(b)(3)(C)(i) of the Act provides that if

EPA determines that the fee provisions

of a State’s part 70 program do not meet

the requirements of title V, or if EPA

determines that a permitting authority is

not adequately administering or

enforcing its approved fee program, EPA

may, in addition to taking any other

action authorized under title V, collect

reasonable fees from the sources that

should be paying adequate fees

pursuant to an approved part 70 fee

program. Thus, EPA has the discretion

to charge fees whenever a State fails to

establish an approvable fee program or

fails to implement its approved fee

program, even if there are no other

deficiencies in the State’s operating

permits program. Section 502(b)(3)(C)(i)

also provides that fees charged by EPA

shall be designed solely to cover EPA’s

costs of administering the provisions of

the permits program promulgated by

EPA.

2. Fee Calculation and Assessment

The fee schedule proposed in § 71.9

would establish a dollar per ton charge

on actual emissions of each regulated

pollutant (for fee calculation) that is

emitted from a source.

Under the fee schedule in this

proposal, the date of the initial fee

submittal would be contingent upon

several factors. If EPA withdraws

approval of a part 70 program, initial

part 71 fees would be due in accordance

with a schedule based upon a source’s

primary SIC Code, as provided in

proposed § 71.9(f)(1).

If EPA implements a part 71 program

in an area that did not have a part 70

program in place, initial fee calculation

work sheets and fees would be due at

the same time the initial permit

application is due, in accordance with

the requirements of proposed

§ 71.5(b)(1).

Regardless of whether a part 70

program preceded a part 71 program,

sources that become subject to the part

71 program after the part 71 program’s

effective date would be required to

submit initial fee calculation work

sheets and fees at the same time the

initial permit application would be due,

in accordance with the requirements of

proposed § 71.5(b)(1).

Sources would be allowed to pay their

initial annual fee in two installments.

The first payment equalling one-third of

the annual fee would have to be

submitted along with the initial fee

calculation worksheet. The balance

would be due four months later, but in

no event later than a year after the

program’s effective date.

As provided in proposed § 71.9(g), for

sources that receive a part 71 permit as

a result of an EPA veto of the State’s

proposed part 70 permit (as provided in

proposed § 71.4(e)), the initial fee

calculation work sheet and fees would

be due 3 months after the date the part

71 permit is issued. Delaying the

source’s fee payment in this manner

would provide the State an opportunity

to issue a permit that satisfies EPA’s

objection, thereby relieving sources of

the burden of paying both State and

Federal permit fees. However, such

sources would not be permitted to pay

fees in installments because their

obligation to pay fees arises after EPA

has completed the permit issuance

process.

For sources that commenced

operation during the calendar year

preceding the date on which a source’s

initial application is due, the initial fee

calculation would be based on an

estimate of the current calendar year’s

actual emissions. This estimated fee

would be adjusted in the first annual

emission report. In addition, sources

that would be required to submit initial

fee calculation work sheets and fees

between January 1 and March 31, as

required by either proposed § 71.9(f)(1)

or § 71.9(g), would have the option of

basing their initial fee calculation on an

estimate of the preceding calendar

year’s actual emissions. This provision

would provide sources with a means for

meeting the initial fee submittal

requirements if their initial fee

submittal date does not provide for

sufficient time to calculate the previous

calendar year’s actual emissions. This

estimation would also have to be

reconciled in the first annual emission

report.

For purposes of subsequent annual

emissions reporting and fee

assessments, the date (month and day)

on which the initial part 71 fee

calculation work sheet and fees were

due would be considered the

‘‘anniversary date’’ for that source. Each

source would be required to submit an

annual report of its actual emissions for

the preceding calendar year by its

anniversary date. However, to allow

sources with anniversary dates between

January 1 and March 31 the time needed

to analyze the preceding calendar year’s

emissions data, the anniversary date for

these sources would be April 1. The

annual report would have to include a

fee calculation work sheet and full

payment.

As discussed above, sources that

commenced operation during the

preceding calendar year would base

their initial fee calculation on an

estimate of the current calendar year’s

actual emissions. When the permitting

authority receives the first annual

emissions report, the permitting

authority would compare the estimate to

the emissions report and would adjust

the initial fee to reflect the annual

emissions listed in the report. If an

additional fee is required, payment

would be due with the submittal of the

annual emissions report. If the source

has overpaid, the permitting authority

would credit the source’s account.

Regardless of this adjustment procedure,

the source would be required to pay its

current emissions fee based on the

actual emissions listed in the first

annual emissions report.

Sources subject to proposed

§ 71.9(f)(1) or § 71.9(g) that have initial

application and fee calculation work

sheets due between January 1 and

March 31 could opt to base their initial

fee on an estimate of the past year’s
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20821

actual emissions. The first annual

emissions report for such sources would

have to reconcile the emissions fee from

the initial fee calculation. In addition to

calculating the current emissions fee,

the report would be required to include

actual emissions data from the

estimated year, and the source’s account

would have to be revised accordingly.

Section 502(b)(3)(C)(ii) requires that

sources that fail to pay fees in a timely

fashion shall be assessed interest at a

rate equal to the sum of the Federal

short-term rate determined by the

Secretary of the Treasury in accordance

with section 6621(a)(2) of the Internal

Revenue Code of 1986, plus 3

percentage points and shall pay a

penalty charge of 50 percent of the fee

amount. Proposed § 71.9(l) would

implement section 502(b)(3)(C)(ii) by

providing that the penalty charge shall

be due if the fee is not paid within 30

days of the payment due date or if

sources that compute fees based on

estimated annual emissions

substantially underestimate these

emissions.

Fee payments would be required to be

in United States currency in the form of

a money order, bank draft, certified

check, corporate check, or electronic

funds transfer payable to the order of

the U. S. Environmental Protection

Agency. The EPA intends to develop

additional guidance regarding

remittance procedures as the Federal

operating permits program is

implemented.

3. Principles for Developing Fee

Structure

The following principles were used to

develop the proposed fee requirements:

a. Fees Based on Average Annual

Costs. By means of the fee structure

proposed in this rule, EPA intends to

recover both direct and indirect costs for

the various activities conducted to

administer part 71 programs. Direct

costs would include personnel benefits

and salaries, travel, equipment costs,

and contractor expenses. Indirect costs

would be those resources, outside of

direct program costs, used to manage,

oversee and provide counsel to program

offices. These would include costs such

as those incurred by EPA’s management,

administrative, and policy staff. Indirect

costs would also include overhead

costs, such as utilities and rents.

The methodology proposed to be used

for setting fees is to estimate the cost of

implementing the part 71 program

nationwide and to divide that cost by

the estimated emissions that would be

subject to the fee. The result is a fee

expressed in dollars per ton/yr of

pollutants emitted. A detailed

discussion of the assumptions and

calculations involved in determining

fees is found in ‘‘Federal Operating

Permits Program Costs and Fee

Analysis’’ (Fee Analysis), which is

contained in the docket for this

rulemaking.

The cost estimates presented in the

Fee Analysis are based on operating a

part 71 program for two years. The EPA

believes this is a reasonable average

program duration, given the expected

transitory nature of the program.

For purposes of the cost analysis, the

hourly personnel costs were assumed to

be the same for EPA and for delegate

agencies. Therefore, the total personnel

costs for an EPA administered program

and one which is delegated in whole or

in part would be identical except for the

cost of additional EPA oversight (which

would be covered by a $3 per ton/yr

surcharge discussed below).

Because part 71 programs will

generally be transitional programs, EPA

may in some cases decide to staff the

program primarily through contractor

assistance. The emissions fee for a

particular part 71 program would vary

depending on the extent to which EPA

relies on contractor support and the cost

of contractor assistance. If the program

is administered by EPA without

contractor assistance, the proposed fee

would be $45 per ton/yr. If the program

were staffed through contractor

assistance (except for those functions for

which the use of contractors is not

appropriate such as final permit

issuance determinations), EPA would

establish a fee based on the contractor

costs for a particular program.

As provided in proposed § 71.9(c)(3),

the fee for a contractor assisted program

is the sum of the permitting authority’s

costs associated with activities that it

undertakes, the cost of paying a

contractor to undertake other activities,

and a surcharge that covers EPA’s

oversight costs. The formula for

determining the cost of contractor

assistance is as follows:

C=[B+T+N] divided by 12,300,000

Where B represents the base cost

(contractor costs), where T represents

travel costs, and where N represents

non-personnel data management and

tracking costs.

B, T and N, when summed, are

divided by the total tonnage of national

emissions that would be subject to fees

(12.3 million tons) to convert the cost

into a per ton fee rate.

The Fee Analysis discusses the

methodology used in computing the

base cost of the part 71 program, travel

costs and non-personnel data

management and tracking costs. Travel

costs and non-personnel data

management and tracking costs would

be the costs ($14,488,000 and

$13,400,000 respectively) indicated in

Table A–3 of that document.

As indicated above, the base cost

would vary depending on the hourly

rate paid for contractor assistance. Table

A–3 presents the base cost for a program

in which contractor assistance (costing

$62 per hour) was used to the maximum

extent possible. This $62 figure reflects

the average hourly cost of several large

contracts awarded by EPA for projects

relating to air quality control. Using that

hourly rate, the resulting per ton fee

would be $77. The base cost was

computed by summing the costs of

contractor assistance for years 1 and 2

for the activities listed in Table A–1 of

the Fee Analysis (except those activities

which EPA should undertake, i.e.,

presiding over hearings, transition

planning, guidance, contract

management, and training) and then

computing an annualized cost. To

determine the fee for a particular part 71

program, EPA would substitute a

different hourly rate (based on the

actual rate charged by the contractor)

into the computation.

Each time a part 71 program is

implemented, EPA would determine the

percentage of personnel time allocated

to contractors by considering who could

best perform each type of permitting

activity (e.g., technical review and

processing of permit applications and

compliance plans, preparation for

public hearings, compliance

inspections). This flexibility would

allow EPA to develop a staffing pattern

that meets the unique needs of the part

71 program being administered. By

using the formula specified in proposed

§ 71.9(c)(3), EPA would arrive at the

basic emissions fee. If the program is

delegated or staffed largely by

contractors, there would be additional

costs due to the oversight that EPA must

provide to the program. These

additional costs of EPA’s review of

permit applications, compliance plans,

draft permits, permit revisions and

reopenings would increase the

emissions fee by $3 per ton/yr.

The EPA currently uses contractors

for permits related work pursuant to

competitively bid contracts which

compensate contractors on a level of

effort basis, using set hourly fees. These

contracts, which provide for a certain

number of hours of services at a fixed

hourly rate, were used in projecting the

costs of using contractors to implement

part 71 programs and could be used by

EPA for part 71 programs when

contractor assistance is needed. It has

been suggested that for part 71 programs
20822 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

it may be more cost effective if contracts

for part 71 programs were

independently bid. Therefore, EPA

solicits comments on whether fees for

part 71 programs should be based on

contractor costs established by a new

competitive bid process. While not

wanting to dismiss this alternative, the

EPA is concerned about the costs

involved with preparing the

documentation required for the

competitive bid process and that the

length of time required to undertake this

process (usually 12–18 months) would

make this alternative impractical in

light of the program’s effective date. In

particular, EPA solicits comments on

whether this approach would result in

cost savings.

The EPA considered several other

options for setting fees. For example,

EPA considered the possibility of basing

fees for each part 71 program on the fee

structure submitted by a State or local

government as part of its part 70

submittal. This approach, however, has

limited utility in that it is not

appropriate where the submittal

contains an inadequate fee program or

where no submittal is made.

Furthermore, the administrative burden

(and the delay in program

implementation) involved with

completing individual rulemakings for

each part 71 program made this option

infeasible.

Given that it is not practical to craft

a fee schedule that fits each State, and

given that EPA is unable to foresee with

certainty when and where it may be

necessary to implement part 71

programs, EPA proposes to base its fees

on the average cost of implementing a

part 71 program.

The EPA considered whether the

average cost of the part 71 program

would be recovered by charging a fee of

$25 per ton/yr (1989 baseline with CPI

adjustments), which is the amount of fee

revenue that EPA would presume is

adequate for purposes of funding State

operating permits programs under part

70. For fiscal year 1995, this fee would

equal $30.18. However, EPA believes

that there would be some differences in

costs between the Federal program and

State programs which made use of the

presumptive fee inappropriate.

Using the approach outlined above,

EPA has developed a proposed fee

structure that will reflect the cost of the

Federal operating permits program,

though not necessarily the cost of

implementing the program in any

particular State. The proposed fee is

expected to be adequate for nearly all

part 71 programs and should, on

average, collect sufficient revenue to

fund permitting under this part.

However, if EPA determines that the fee

structure provided in proposed

§ 71.9(c)(1)–(4) does not adequately

reflect the program costs for a particular

area, such as a Tribal area, then EPA

may by separate rulemaking establish a

different fee for a part 71 program.

b. Minimizing Administrative

Burdens. Although EPA could design a

fee system that imposes different fees

based on such factors as source

categories, the particular pollutants

emitted, or the type of permitting action

requested, EPA proposes a straight

forward emissions-based fee system. For

sources, the fee computation would be

simple. Similarly, EPA’s administrative

burden related to assessing fees and

monitoring compliance with fee

requirements would be minimized.

c. Fees Calculated Based on Existing

Information. The EPA would provide

sources with fee calculation work

sheets. Using these work sheets, sources

would compute their actual emissions

of the appropriate pollutants and

multiply by the appropriate per ton/yr

rate. Sources would submit fees within

the first 12 months of the effective date

of the program, and annually thereafter.

Many sources are already subject to

annual emissions reporting

requirements. Thus, except for new

sources, there would generally be no

requirement that sources develop any

information for the work sheets that

would not already be required on the

application form or as an emission

reporting requirement.

d. Fees Imposed in Advance of EPA’s

Rendering Services. Under the proposal,

all part 71 sources would remit fees

within 12 months of the effective date

of the permit program, even if the

source is not issued a part 71 permit

within that time. Those fees will

provide a stable source of revenue from

which to fund the initial start-up costs

of the program, the costs of issuing

permits within the first year of the

program, as well as cover ongoing

activities such as inspections, reviewing

monitoring reports, and other

compliance and enforcement activities.

This procedure would comply with

Federal policy for user fees established

in OMB Circular A–25 (July 8, 1993),

which provides that fees are to be

collected before services are

administered or goods provided to

ensure that fees are actually paid for the

services provided, that the Treasury

receives funds in a timely manner, and

that additional administrative burdens

and costs for collecting fees are avoided.

4. Revision of Fee Structure

To reflect changes in operating costs,

fees would be adjusted automatically

every year (after 1997) by the same

percentage as the percent change in the

CPI. Also, the fee schedule would be

revisited every two years as required by

section 902(a)(8) of the Chief Financial

Officer’s Act of 1990. (31 U.S.C. 501 et

seq.)

I. Section 71.10—Delegation of Part 71

Program

1. Delegation Process

Section 301(a)(1) of the Act provides

that the Administrator is authorized to

prescribe such regulations as are

necessary to carry out his or her

functions under the Act. Pursuant to

this authority, proposed § 71.10

provides that a part 71 program may be

delegated in whole or in part, with or

without signature authority (i.e., the

authority to issue permits) to any State

or local agency or eligible Tribe that is

found to have the requisite legal

authority to administer such a program.

For purposes of the rule, an eligible

Indian Tribe would be a Tribe that EPA

has determined meets the criteria for

being treated in the same manner as a

State, pursuant to regulations

implementing section 301(d)(2) of the

Act.

The EPA recognizes that in some

cases States could fail to receive part 70

program approval due to program flaws

that are not related to the permitting

authority’s practicable ability to

implement a title V program. For

example, the submitted part 70 program

may contain elements in it enabling

legislation or its regulations that prevent

EPA from granting program approval,

even though EPA may be confident that

the State permitting authority could

adequately administer and enforce a

title V program that meets the

requirements of the Act. While title V

requires EPA to promulgate Federal title

V programs for States that fail to receive

part 70 program approval, EPA believes

that in situations where State permitting

authorities appear capable of

implementing programs that meet the

requirements of title V, it would be

consistent with the general policies of

the Act to involve States in

implementing required Federal permits

programs, rather than exclude State

permitting authorities.

The Act has long provided that air

pollution control is the primary

responsibility of States and local

governments. (See, e.g., section 101(a)(3)

of the Act, 42 U.S.C. 7401(a)(3).)

Moreover, while title V requires States

to submit permit programs for approval

by EPA, the Act does not provide that

program approval is the sole mechanism

available for State air pollution control
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20823

agencies to become permitting

authorities under title V. Section 501(4)

of the Act defines ‘‘permitting

authority’’ to mean both the

Administrator or the air pollution

control agency ‘‘authorized’’ by the

Administrator to carry out a permit

program under title V. Section 302(b) of

the Act defines ‘‘air pollution control

agency’’ to include State and local

government agencies. The EPA believes

the word ‘‘authorized’’ as used in

section 501(4) may reasonably be

interpreted to apply not only to

instances in which EPA approves a

submitted part 70 program, but also to

instances in which EPA determines that

a State or local air pollution control

agency demonstrates that it is capable of

carrying out a title V permit program

even where the State has not submitted

a part 70 program that has received EPA

approval.

The EPA could exercise its discretion

to delegate authority to administer some

portion or all of a part 71 program

where, for example, it makes sense to

take advantage of existing expertise of

the delegate agency or where it seems

probable that the delegate agency’s

submitted part 70 program will be

approved within a short time by EPA,

provided in both cases that the delegate

agency has the authority to administer

the portion of the program that would

be delegated.

Any agency that seeks to obtain

delegation of a part 71 program would

be required to submit a formal request

for delegation, in accordance with the

provisions of proposed § 71.10, and

such other documentation as is

necessary for review and consideration

by the Administrator to make a

determination that the agency or eligible

Tribe has adequate legal authority and

procedures to administer and enforce a

part 71 program.

The EPA would adopt a flexible

approach in evaluating delegation

requests. The EPA would not demand

that each delegate agency administer a

part 71 program in precisely the same

way because each delegate agency

would have to comply with its own

procedures, administrative codes,

regulations, and laws as well as the

requirements of this part.

The Governor or designee for a State,

a local agency, or the Tribal governing

body for an eligible Tribe, would be

required to submit to EPA a written

request for delegation of authority on

behalf of the State or local agency or

eligible Tribe pursuant to proposed

§ 71.10. The request would have to

include a legal opinion that certifies that

the State or local agency or eligible

Tribe has the requisite legal authority to

implement and administer the program.

The request would also have to identify

the officers or agencies responsible for

carrying out the State, local, or Tribal

procedures, regulations, and laws.

The EPA would respond in writing to

each delegation request and shall state

to what extent the request has been

accepted or rejected. If the request is

accepted in whole or in part, the

Administrator would delegate to the

Governor or designee, the local agency,

or Tribal governing body, the authority

to carry out the accepted portions of the

delegation. If the request is rejected in

whole or in part, the notification shall

specify the reasons for such rejection.

The terms and conditions of the

delegation would be set forth in a

‘‘delegation of authority agreement’’ that

specifies the effective date for the

agreement. The delegation of authority

agreement would be published in the

Federal Register by EPA and would

identify the delegate State, local, or

Tribal procedures to be used for

implementing and administering the

program by reference to the request and

to any additional submission by the

Governor or designee, or Tribal

governing body supplementing or

modifying the State, local or Tribal

procedures.

2. Full and Partial Delegation

Although EPA encourages delegate

agencies to accept full delegation of all

aspects of the administration of part 71

programs, there are situations where a

delegate agency may be unable or

unwilling to assume all responsibility

for administering these programs.

Where appropriate, EPA could choose to

grant partial delegations as follows:

(1) Delegation of authority may be

granted for only a portion of the State

or regulatory area;

(2) Delegation of authority may be

restricted to certain source categories or

parts thereof; or

(3) Authority may be delegated for

selected parts of the procedural

responsibility in implementing a part 71

program with EPA acting as a partner in

completing the remaining actions (e.g.,

delegation of authority may be granted

with regard to the administrative and/or

technical portion of implementing the

part 71 program, with EPA providing

enforcement should such action become

necessary);

(4) Authority may be delegated for

only the acid rain portion of a title V

program, or for other parts of the title V

program, not including the acid rain

portion.

3. Procedural Requirements for

Delegation

The delegate agency would be

required to provide notice to the

Administrator of all applications for any

permit, permit renewal, or permit

revision, including any compliance

plan, or any portion thereof that the

Administrator determines to be

necessary to review the application and

permit effectively, each proposed

permit, and each final permit as

provided in proposed § 71.10(d). The

delegate agency would also have to

provide notice of each draft permit to

affected States on or before the time that

the delegate agency provides this notice

to the public under proposed §§ 71.7

(e)(4), (h), or (i) or § 71.11(d) and would

be required to provide any affected State

a copy of the addendum for a de

minimis permit revision within 7 days

of the date on which the addendum

takes effect.

Affected States that receive notice

pursuant to proposed § 71.8(a) could

submit written recommendations and

comments on the permit to the delegate

agency. If the delegate agency refuses to

accept the recommendations, the

reasons for the refusal would have to be

provided in writing to the State(s)

providing the recommendations.

The EPA could waive its own and

affected States’ review of permits for

any category of sources, except major

sources, by nationwide regulation for a

category of sources. The EPA could also

waive its own right to review, but

maintain the requirement for a delegate

agency to notify affected States. During

Phase II of the acid rain program, the

Agency does not intend to waive its

own right to review permits for affected

sources under the acid rain program.

When a part 71 program has been

delegated with signature authority in

accordance with the provisions of this

section, the Administrator could object,

in writing, to a part 71 permit if the

delegate agency fails to properly submit,

process, or provide notice as would be

required by this part or if the part 71

permit does not assure compliance with

applicable requirements of the Act. If

the delegate agency fails to revise the

proposed permit in response to the

objection, the Administrator could deny

the permit or issue a permit in

accordance with the part 71 program.

4. Delegation of Authority Agreement

A delegation of authority agreement

would specify the terms and conditions

of the delegation and would be required

to include, but not be limited to:

(1) A provision that the delegation is

made in accordance with proposed

§ 71.10;
20824 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

(2) A provision that describes the

source categories, geographic areas, and

the administrative and enforcement

activities governed by the delegation;

(3) A provision that requires the

delegate agency to comply with the

public notice requirements of proposed

§§ 71.7 and 71.11;

(4) A provision that requires the

delegate agency to provide a copy,

through the appropriate Regional Office,

of each permit application, proposed

permit, and final permit to the

Administrator as required in proposed

§ 71.10(d);

(5) A provision that any permit issued

by a delegate agency contain a statement

identifying the permit as a title V, part

71 permit;

(6) A provision that requires EPA’s

concurrence on any applicability

determination or policy statement

regarding title V or parts 70 or 71 not

covered by determinations or guidance

provided to the delegate agency;

(7) A provision that requires

immediate notification to be provided to

EPA if the delegate agency is unable or

unwilling to administer or enforce a

provision of the delegated part 71

program with respect to any source; and

(8) A provision that the delegate

agency may not grant any waiver to a

permit requirement or issue any order

that violates an effective provision or

requirement of part 71 or the Act.

J. Section 71.11—Administrative

Record, Public Participation, and

Administrative Review

Section 71.11 of the proposal

establishes procedures by which the

part 71 permitting authority would act

on permit applications, issue draft

permits, provide opportunities for

public comment, and issue final

permits. The emphasis in proposed

§§ 71.11(a)–(j) is on a description of the

notice and public participation

procedures for initial permit issuance,

permit renewals, permit reopenings, and

significant permit revisions. The notice

and public participation procedures for

administrative amendments, de minimis

permit revisions, and minor permit

revisions are described in proposed

§ 71.7.

Proposed §§ 71.11(k)–(m) describe the

administrative record for permits, the

procedure for appeal of permits, and the

determination of the beginning and

ending days for any scheduled time

period. Unlike proposed §§ 71.11(a)–(j),

provisions in proposed §§ 71.11(k)–(m)

would apply to all permit actions,

including administrative amendments,

de minimis permit revisions, minor

permit revisions and significant permit

revisions.

The EPA considered two alternative

methods of establishing the public

participation and administrative review

procedural requirements. The first

alternative would be to amend the

existing procedures in 40 CFR part 124,

which establishes specific decision

making procedures for RCRA,

Underground Injection Control (UIC),

PSD, and NPDES permits, so that the

procedures would be compatible with

the part 71 program. The EPA would

then incorporate those provisions by

reference into the part 71 permit rule.

The second alternative was to establish

public participation and administrative

appeal procedures as a separate section

of this rule. This alternative has the

advantage of allowing these procedures

to focus specifically on the needs of the

part 71 program as well as appear in

close proximity to the permit program

requirements in the Code of Federal

Regulations.

Today’s proposal follows the second

alternative. The proposed public

participation and administrative appeals

procedures are set out at § 71.11 and are

based closely on selected provisions of

part 124, subpart A. The EPA does not

believe the choice of one format over the

other will have a substantial impact on

the implementation of this rule.

Once a permit application is

complete, including an application to

revise an existing permit, the permitting

authority would tentatively decide

whether to prepare a draft permit. Such

draft permits would contain permit

conditions specified in proposed § 71.6,

public notice of the draft permit would

be issued and the draft would be made

available for comment. Administrative

amendments of permits would not be

subject to draft permit or public notice

requirements. Public notice of de

minimis permit revisions would be on

a post hoc basis, and draft permits for

minor permit revisions would be

publicly noticed by the applicant

source. All draft permits issued by the

permitting authority would be

accompanied by a statement that briefly

describes the derivation of the

conditions of the draft permit and the

reasons for them.

Proposed § 71.11(d) would establish

public notice and comment procedures

for part 71 permit actions not addressed

elsewhere in the proposal, including

application denials, draft permit

preparation, scheduling of public

hearings, reopening of the public

comment period, and granting of

appeals. Where other provisions of this

proposal establish permitting

procedures for specific types of actions,

such as in the provisions on

administrative amendments, de minimis

permit revisions, and minor permit

revisions, those provisions would

govern. Notice of draft permits under

proposed § 71.11(d) (including permit

revisions) would provide at least 30

days for public comment, and notices of

hearings would be issued at least 30

days before hearings are held. Notice

would be provided by mail to interested

persons, by publication, or by other

reasonable means and would include

information on the permittee, contact

persons, and general procedures on

submitting comments and requesting to

speak at hearings. In addition, notices of

hearings would provide information on

dates, times, and places of hearings, as

well as applicable rules and procedures.

The permitting authority could hold

hearings either upon the basis of

requests or on its own initiative.

Proposed § 71.11(e) would establish

requirements for consideration of

comments on a draft permit. It would

require that a request for a public

hearing be in writing and include a

statement of the nature of the issues

proposed to be raised at the hearing. It

would also stipulate that all comments

be considered in making the final

decision on the draft permit, and that a

publicly available record be kept of

commenters and issues raised.

Proposed § 71.11(f) on public hearings

would require that a public hearing be

held if there was a significant degree of

interest in a draft permit. The permitting

authority would designate a Presiding

Officer who would be responsible for

conducting the hearing. This proposed

procedure would allow statements from

any person, with reasonable limits on

time allowed for oral statements. A tape

recording or written transcript would be

required to be made available to the

public.

Proposed § 71.11(g) would require

that all reasonably ascertainable issues

and all reasonably ascertainable

arguments be raised or submitted by the

close of the public comment period. It

would require that supporting materials

be submitted in full, rather than

incorporated by reference. In order to

comply with this proposed requirement,

the comment period could be longer

than 30 days, at the discretion of the

permitting authority.

Proposed § 71.11(h) would allow the

permitting authority to reopen the

public comment period if any person

believed that a condition of the draft

permit is inappropriate, or that the

permitting authority’s decision to deny

an application, terminate a permit, or

prepare a draft permit is inappropriate.

If information submitted during the

public comment period appeared to

raise substantial new questions, the
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20825

permitting authority would have the

flexibility to prepare a new draft permit,

or prepare a revised statement of basis

and reopen or extend the comment

period.

Proposed § 71.11(i) would require the

permitting authority to issue a final

permit decision once the public

comment period had closed. The final

decision, which becomes effective

immediately upon issuance of the

decision or a later date specified in the

decision, would be a decision to issue,

deny, revise, revoke and reissue, renew,

or terminate a permit.

Proposed § 71.11(j) would require the

permitting authority to issue a response

to comments. The response would

specify what provisions, if any, of the

draft permit were changed in the final

permit decision, and why. It would also

require a description and response to all

significant comments, and require

inclusion of any cited documents in the

administrative record. If an affected

State recommended changes to the draft

permit that were not accepted by the

permitting authority, proposed § 71.11(j)

would require written notification to the

affected State.

Final permit decisions would be

based on the administrative record

defined in proposed § 71.11(k),

including comments received, hearing

transcripts, the response to comments,

the final permit, the permit application,

and the draft permit and its statement of

basis.

Proposed § 71.11(l) grants a right of

appeal of all final permit decisions,

including those taken under provisions

establishing procedures for

administrative amendments, de minimis

permit revisions, and minor permit

revisions, and establishes procedures for

such appeals. Within 30 days of a final

permit decision, interested persons

could petition the Environmental

Appeals Board to review the final

permit decision. Petitions for review

would be required to include a

statement of the reasons supporting

review and could address only issues

raised during the public comment

period, unless it was impracticable to

raise the relevant objections during such

period or the grounds for objection arose

after the period closed. An example of

a situation in which it is impracticable

to raise an objection during the

comment period would be when a

significant change is made from a draft

to final permit without providing an

opportunity for public comment.

Moreover, while persons who

participated in the comment or hearing

processes could petition the Board to

review any condition of the final permit

decision, persons who failed to file

comments or participate in hearings

could petition the Board only with

respect to changes from the draft to final

permit decision. When a part 71 permit

is appealed, it would nevertheless

remain fully effective and enforceable

against the permitted source.

The EPA seeks comment on its

method of establishing procedures for

public participation and administrative

review, and on the appropriateness of

the specific procedures proposed. The

EPA particularly seeks comment on the

issues of the statement of basis

accompanying draft permits, the

proposed public notice and comment

requirements, and appeals of permits.

Pursuant to sections 114 and 503(e) of

the Act, EPA, by this proposed rule

solicits comments on the

appropriateness of, and the means for,

making available to the public

information that a source would be

required by this rule to collect. Such

information might include, for example,

the data resulting from use of required

monitoring methods. Specifically, EPA

is requesting comment on what types

and amount of information required

under this rule should be made

available to the public, what limits, if

any, to place on a requirement to make

available such information, and

appropriate methods for making such

information publicly available (e.g.,

electronic reporting to a publicly

accessible data base, direct access by the

public to information held by sources,

or reliance on EPA and/or delegated

States to assist the public in obtaining

the information). The EPA also solicits

comment on appropriate language for a

rule or policy guidance document to

effectuate public availability of

information required under this rule

and solicits comments on whether a rule

or a policy guidance document is more

appropriate.

Under both delegated and

nondelegated part 71 programs,

interested persons (including permitees)

would be authorized to petition the

Administrator to reopen an already

issued permit for cause as provided in

proposed § 71.11(n). Petitions would be

required to be in writing and to contain

facts or reasons supporting the request.

If the Administrator determined that

cause exists to reopen the permit, he or

she would revise, revoke and reissue, or

terminate the permit consistent with the

requirements and procedures in

proposed § 71.7.

Under part 70, citizens can petition

EPA to object to State issued permits

and can appeal EPA’s failure to object

to a proposed permit. However, for both

delegated and nondelegated part 71

programs, the EPA feels this type of

petition process is unnecessary because

the final permit can be appealed directly

to the Environmental Appeals Board

(EAB) and because citizens can use the

petition process provided by proposed

§ 71.11(n) in cases where the deadline

for appeal to the EAB has passed. The

EPA believes that this approach

provides an adequate opportunity for

EPA oversight of part 71 programs, and

that consequently there is little value in

providing the opportunity for citizens to

petition the Administrator to object to a

proposed permit, which could result in

two separate and simultaneous routes to

appeal EPA’s permitting actions.

Moreover, the approach proposed today

would be more consistent with that

taken in the Agency’s recently

promulgated rule (to be codified at 40

CFR 71.21 et seq), which governs how

title V specialty permits would be

issued to sources seeking alternative

hazardous air pollution emissions limits

under section 112(i)(5) of the Act. See

59 FR 59921 (Nov. 21, 1994) (‘‘Federal

Operating Permit Programs; Permits for

Early Reductions Sources’’). The Agency

solicits comment on this approach.

K. Section 71.12—Prohibited Acts

It is important to note that it is

unnecessary to include an enforcement

authority section in the part 71 Federal

program regulations that specifically

corresponds to the enforcement

authority section in the part 70 State

program regulations. Rather, because the

program under part 71 is a Federal

program, it will be enforced through the

full Federal enforcement authorities in

the Act.

Examples of the Federal enforcement

authorities available under the Act for

violations of title V and the regulations

thereunder include, but are not limited

to, the authority to: (1) Restrain or

enjoin immediately and effectively any

person by order or by suit in court from

engaging in any activity in violation of

the Act that is presenting an imminent

and substantial endangerment to the

public health or welfare, or the

environment; (2) seek injunctive relief

in court to enjoin any violation of the

Act; (3) issue an administrative order

against any person assessing a civil

administrative penalty of up to $25,000

per day for each violation of the Act;

and (4) assess and recover a civil

penalty of not more than $25,000 per

day for each violation of the Act.

Another example of enforcement

authority available under the Act is the

authority to assess criminal fines

pursuant to title 18 of the United States

Code or imprisonment for not to exceed

5 years, or both, against any person who

knowingly violates title V and the
20826 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

regulations thereunder. The above list is

not an exhaustive description of the

Federal enforcement authority available

under the Act for violations of title V

and the regulations thereunder.

Accordingly, nothing in this discussion

shall be construed to limit the Federal

enforcement authorities available under

the Act for violations of title V and the

regulations thereunder.

The Federal enforcement authority

available under the Act for violations of

title V and the regulations thereunder

provides broader enforcement authority

than the States are required to have

under the part 70 regulations. For

example, 40 CFR 70.11 requires that

States have authority to recover civil

penalties for a maximum amount of not

less than $10,000 per day per violation.

The Federal enforcement authority

imposes a maximum penalty of up to

$25,000 per day per violation.

VI. Administrative Requirements

A. Reference Documents

All the documents referenced in this

preamble fall into one of two categories.

They are either reference materials that

are considered to be generally available

to the public, or they are memoranda

and reports prepared specifically for

this rulemaking. Both types of

documents can be found in Docket No.

A–93–51.

B. Office of Management and Budget

(OMB) Review

Under Executive Order 12866 (58 FR

51735 (October 4, 1993)), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore,

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant’’

regulatory action as one that is likely to

lead to a rule that may:

(1) Have an annual effect on the

economy of $100 million or more,

adversely and materially affecting a

sector of the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local or

Tribal governments or communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan program or the rights and

obligations of recipients thereof;

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant’’

regulatory action. As such, this action

was submitted to OMB for review.

Changes made in response to OMB

suggestions or recommendations will be

documented in the public record.

The estimated annualized cost of

implementing the part 71 program is

$137.5 million to the Federal

government and $79.8 million to

respondents, for a total of $217.3

million which reflects industry’s total

expected costs of complying with the

program. Since any costs incurred by

the Agency in administering a program

would be recaptured through fees

imposed on sources, the true cost to the

Federal government is zero. The

requirements for the costs result from

section 502(d) of title V which mandates

that EPA develop a Federal operating

permits program. The proposed program

is designed to improve air quality by:

indirectly improving the quality of

State-administered operating permits

programs; encouraging the adoption of

lower cost control strategies based on

economic incentive approaches;

improving the effectiveness of

enforcement and oversight of source

compliance; facilitating the

implementation of other titles of the

Act, such as title I; and improving the

quality of emissions data and other

source-related data.

C. Regulatory Flexibility Act

Compliance

Under the Regulatory Flexibility Act,

whenever an Agency publishes any

proposed or final rule in the Federal

Register, it must prepare a Regulatory

Flexibility Analysis (RFA) that describes

the impact of the rule on small entities

(i.e., small businesses, organizations,

and governmental jurisdictions). The

EPA has established guidelines which

require an RFA if the proposed rule will

have any economic impact, however

small, on any small entities that are

subject to the rule, even though the

Agency may not be legally required to

develop such an analysis.

The original part 70 rule and the

recently proposed revisions to part 70

were determined to not have a

significant and disproportionate adverse

impact on small entities. Similarly, a

regulatory flexibility screening analysis

of the impacts of the proposed part 71

rule revealed that the proposed rule

would not have a significant and

disproportionate adverse impact on

small entities; few small entities would

be subject to part 71 permitting

requirements because the proposed rule

defers permitting requirements for

nonmajor sources. Consequently, the

Administrator certifies that the

proposed part 71 regulations will not

have a significant and disproportionate

impact on small entities. The EPA,

however, solicits any information or

data which might affect this proposed

certification. The EPA will reexamine

this issue and perform any subsequent

analysis deemed necessary. Any

subsequent analysis will be available in

the docket and taken into account before

promulgation.

D. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to OMB

under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq. An Information

Collection Request document has been

prepared by EPA and a copy may be

obtained from Sandy Farmer,

Information Policy Branch (2136), U.S.

Environmental Protection Agency, 401

M St., Washington, D.C. 20460, (202)

382–2706.

As compared to the burden imposed

by 40 CFR part 70, the average

additional annual burden on sources for

the collection of information is

approximately 3.3 million hours, or on

average approximately 96 hours per

respondent and none for State and local

agencies. The total annualized cost for

collection is estimated to be

approximately $79.8 million for sources.

There is no burden for State and local

agencies. Send comments regarding the

burden estimate or any other aspect of

this collection of information, including

suggestions for reducing this burden to:

Chief, Information Policy Branch (PM–

223) U.S. Environmental Agency, 401 M

St. SW, Washington, D.C. 20460; and to

the Office of Information and Regulatory

Affairs, Office of Management and

Budget, Washington, D.C. 20503,

marked, ‘‘Attention: Desk Officer for

EPA.’’ The final rule will respond to any

OMB or public comments on the

information collection requirements

contained in this proposal.

E. Unfunded Mandates Reform Act

As shown in the Information

Collection Request Document (ICR),

today’s action imposes no costs on

State, local and tribal governments. The

EPA estimates that the direct cost to the

private sector would be no more than

$96.6 million in any one year. and

above costs industry would have

incurred by complying with State

permits programs mandated by the Act,

for which part 71 programs are

substitutes. For EPA’s estimates of the

cost to industry and permitting agencies

for State permits programs, see 57 FR

32293 (July 21, 1992) and 59 FR 44525

(August 29, 1994). As shown in the ICR

for proposed part 71, the part 71
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20827

program would impose on industry a

marginal cost (i.e., a cost above what

industry would incur to comply with

State requirements) of $31.9 million for

collecting information (e.g., completing

permit applications). Additionally, EPA

has calculated the marginal cost to

industry of the part 71 fee structure to

be $64.7 million. As shown in the ICR,

part 71 programs would generate $137.5

million in fees, using an average fee of

nearly $60 per ton of certain regulated

pollutants. On the other hand, most

States are expected to charge

approximately $31 per ton (or $25 per

ton as adjusted for inflation using a

baseline year of 1989) which is the fee

amount which title V of the Act suggests

would be adequate to fund a State

permit program. The difference between

fees generated under part 71 and under

the otherwise applicable State fee

requirements (based on $31 per ton)

would be $64.7 million. In addition, it

is important to note that the estimates

used in these projections (and the ICR)

are based on the assumption that EPA

would administer 10 part 71 programs

for a full year. The EPA believes that it

is very unlikely that it would administer

that many programs for such an

extended time period. For these reasons,

EPA believes that the total marginal

costs to industry under today’s proposal

would not exceed $100 million in any

one year. Therefore, the Agency

concludes that it is not required by

Section 202 of the Unfunded Mandates

Reform Act of 1995 to provide a written

statement to accompany this proposed

regulatory action because promulgation

of the rule would not result in the

expenditure by State, local, and tribal

governments, in the aggregate or by the

private sector, of $100,000,000 or more

in any one year.

List of Subjects

40 CFR Part 55

Air pollution control, Outer

Continental Shelf, operating permits.

40 CFR Part 71

Air pollution control, Prevention of

significant deterioration, New source

review, Fugitive emissions, Particulate

matter, Volatile organic compounds,

Nitrogen dioxide, Carbon monoxide,

Hydrocarbons, Lead, Operating permits,

Indian Tribes, Air pollution control—

Tribal authority.

Dated: March 28, 1995.

Carol Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is proposed to be

amended as set forth below.

(Note: Material enclosed by brackets and

designated as ‘‘Option’’ set forth an

alternative proposal regarding revision of

permit terms that prescribe monitoring or

recordkeeping procedures. Material enclosed

by brackets and designated as ‘‘alternatives’’

set for an alternative proposal regarding

processing changes under the administrative

amendment procedures and de minimis

permit revision procedures.)

PART 55—[AMENDED]

1. The authority citation for part 55

continues to read as follows:

Authority: Section 328 of the Clean Air Act

(42 U.S.C. 7401, et seq.) as amended by

Public Law 101–549.

2. Section 55.6 is proposed to be

amended by adding paragraph (c)(3) to

read as follows:

§ 55.6 Permit requirements.

* * * * *

(c) * * *

(3) If the COA does not have an

operating permits program approved

pursuant to 40 CFR part 70 or if EPA has

determined that the COA is not

adequately implementing an approved

program, the applicable requirements of

40 CFR part 71, the Federal operating

permits program, shall apply to the OCS

sources. The applicable requirements of

40 CFR part 71 will be implemented and

enforced by the Administrator. The

Administrator may delegate the

authority to implement and enforce all

or part of a Federal operating permits

program to a State pursuant to § 55.11.

* * * * *

3. Section 55.10 is proposed to be

amended by revising paragraph (a)(1)

and by adding paragraph (b) to read as

follows:

§ 55.10 Fees.

(a) * * *

(1) EPA will calculate and collect

operating permit fees from OCS sources

in accordance with the requirements of

40 CFR part 71.

* * * * *

(b) OCS sources located beyond 25

miles of States’ seaward boundaries.

EPA will calculate and collect operating

permit fees from OCS sources in

accordance with the requirements of 40

CFR part 71.

4. Section 55.13 is proposed to be

amended by adding paragraph (f) to read

as follows:

§ 55.13 Federal requirements that apply to

OCS sources.

* * * * *

(f) 40 CFR part 71 shall apply to OCS

sources:

(1) Located within 25 miles of States’

seaward boundaries if the requirements

of 40 CFR part 71 are in effect in the

COA.

(2) Located beyond 25 miles of States’

seaward boundaries.

(3) When an operating permits

program approved pursuant to 40 CFR

part 70 is in effect in the COA and a

Federal operating permit is issued to

satisfy an EPA objection pursuant to 40

CFR 71.4(e).

* * * * *

PART 71—[AMENDED]

5. The authority citation for part 71

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

6. Part 71 is proposed to be amended

by adding subpart A 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.

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 Clean Air Act (Act) (42 U.S.C.

7401 et seq.) and defines the

requirements and the corresponding

standards and procedures by which the

Administrator will issue operating

permits. This permitting program is

designed to promote timely and efficient

implementation of goals and

requirements of the Act.

(b) All sources subject to the operating

permit requirements of title V of the Act

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
20828 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

1Proposed rule entitled ‘‘Indian Tribes: Air

Quality Planning and Management’’, 59 FR 43956

(August 25, 1994).

Conservation and Recovery Act (42

U.S.C. 6901 et seq.) and under the Clean

Water Act (33 U.S.C. 1251 et seq.),

whether issued by the State, the U.S.

Environmental Protection Agency

(EPA), or the U.S. Army Corps of

Engineers.

(e) Nothing in this part shall prevent

a State from administering an operating

permits program and establishing more

stringent requirements not inconsistent

with the Act.

§ 71.2 Definitions.

The following definitions apply to

part 71. Except as specifically provided

in this section, terms used in this part

retain the meaning accorded them under

the applicable requirements of the Act.

Act means the Clean Air Act, as

amended, 42 U.S.C. 7401 et seq.

Administrator or EPA means the

Administrator of the U.S.

Environmental Protection Agency (EPA)

or his or her designee.

Affected source shall have the

meaning given to it in 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 revision or

permit renewal is being proposed; or

that are within 50 miles of the permitted

source. A Tribe and any associated

Tribal area shall be treated as a State

under this paragraph (1) only if EPA has

determined that the Tribe is eligible to

be treated in the same manner as a State.

(2) The State or Tribal area in which

a part 71 permit, permit revision, or

permit renewal is being proposed.

(3) Those areas within the jurisdiction

of the air pollution control agency for

the area in which a part 71 permit,

permit revision, or permit renewal is

being proposed.

(4) Except as provided in paragraph

(3) of this definition, the term ‘‘affected

State’’ does not include any local

agency, district, or interstate program.

Affected unit shall have the meaning

given to it in 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 requirement enforceable by

the Administrator and by citizens under

the Act that limits emissions for the

purposes of creating offset credits or for

complying with or avoiding the

applicability of applicable requirements;

(3) Any term or condition of any

preconstruction permits issued pursuant

to regulations approved or promulgated

through rulemaking under title I,

including parts C or D, of the Act;

(4) Any standard or other requirement

under section 111 of the Act, including

section 111(d);

(5) Any standard or other requirement

under section 112 of the Act, including

any requirement concerning accident

prevention under section 112(r)(7) of the

Act;

(6) Any standard or other requirement

of the acid rain program under title IV

of the Act or 40 CFR parts 72 through

78;

(7) Any requirements established

pursuant to section 114(a)(3) or 504(b)

of the Act;

(8) Any standard or other requirement

governing solid waste incineration,

under section 129 of the Act;

(9) Any standard or other requirement

for consumer and commercial products,

under section 183(e) of the Act;

(10) Any standard or other

requirement for tank vessels, under

section 183(f) of the Act;

(11) Any standard or other

requirement of the program to control

air pollution from outer continental

shelf sources, under section 328 of the

Act;

(12) Any standard or other

requirement of the regulations

promulgated at 40 CFR part 82, subpart

B and subpart F to protect stratospheric

ozone under sections 608 or 609 of title

VI of the Act, unless the Administrator

has determined that such requirements

need not be contained in a permit

issued under title V of the Act, and any

standard or other requirement under

any other section(s) of title VI of the Act

that the Administrator determines

should be contained in a permit issued

under title V of the Act; and

(13) Any national ambient air quality

standard or increment or visibility

requirement under part C of title I of the

Act, but only as it would apply to

temporary sources permitted pursuant

to section 504(e) of the Act.

Delegate agency means the State air

pollution control agency, local agency,

other State agency, Tribal agency, or

other agency authorized by the

Administrator pursuant to § 71.10 to

carry out all or part of a permit program

under part 71.

Designated representative shall have

the meaning given to it in 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.1

Emissions allowable under the permit

means a federally enforceable permit

term or condition determined at

issuance to be required by an applicable

requirement that establishes an

emissions limit (including a work

practice standard) or a federally

enforceable emissions cap that the

source has assumed to avoid an

applicable requirement to which the

source would otherwise be subject.

Emissions unit means any part or

activity of a stationary source that emits

or has the potential to emit any

regulated air pollutant or any pollutant

listed under section 112(b) of the Act.

This term is not meant to alter or affect

the definition of the term ‘‘unit’’ for

purposes of title IV of the Act.

Federal Indian reservation, Indian

reservation or reservation means all

land within the limits of any Indian

reservation under the jurisdiction of the

United States Government,

notwithstanding the issuance of any

patent, and including rights-of-way

running through the reservation.

Final action or final permit action

means the issuance or denial of a part

71 permit, permit renewal, or permit

revision by the permitting authority,

which has completed all review

procedures required by §§ 71.7, 71.8,

and 71.11, and is subject to

administrative appeal and judicial

review.

Fugitive emissions are those

emissions which could not reasonably

pass through a stack, chimney, vent, or

other functionally-equivalent opening.

General permit means a part 71

permit that meets the requirements of

§ 71.6(d).

Indian tribe or tribe means any Indian

tribe, band, nation, or other organized

group or community, including any

Alaskan native village, which is

federally recognized as eligible for the

special programs and services provided

by the United States to Indians because

of their status as Indians.

Insignificant activity or emissions

means those activities, operations, and
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20829

emissions levels which meet the criteria

listed in § 71.5(g) for exemption from

the documentation and reporting

requirements of § 71.5(f).

Major new source review (major NSR)

means a title I program contained in an

EPA-approved or promulgated

implementation plan for the

preconstruction review of changes

which are subject to review as new

major stationary sources or major

modifications under EPA regulations

implementing parts C or D of title I of

the Act. (40 CFR 51.165 through 51.166,

40 CFR part 51, subpart P, 40 CFR 52.21

through 52.29).

Major source means any stationary

source or group of stationary sources as

described in paragraph (1), (2), or (3) of

this definition. For purposes of

paragraphs (2) and (3) of this definition,

major stationary source includes any

group of stationary sources that are

located on one or more contiguous or

adjacent properties, and are under

common control of the same person (or

persons under common control)

belonging to a single major industrial

grouping. For the purposes of defining

‘‘major source’’ in paragraph (2) or (3) of

this definition, a stationary source or

group of stationary sources shall be

considered part of a single industrial

grouping if all of the pollutant emitting

activities at such source or group of

sources on contiguous or adjacent

properties belong to the same Major

Group (i.e., all have the same two-digit

code) as described in the Standard

Industrial Classification Manual, 1987.

In addition, for purposes of paragraphs

(2) and (3) of this definition, any facility

that supports a source, where both are

under the control of the same person (or

persons under common control) and on

contiguous or adjacent properties, shall

be considered a support facility and part

of the same source, regardless of the 2-

digit code of that facility. A stationary

source (or group of stationary sources) is

considered a support facility to a source

if at least 50 percent of the output of the

support facility is dedicated to the

source.

(1) A major source under section 112

of the Act, which is defined as:

(i) For pollutants other than

radionuclides, any stationary source or

group of stationary sources located

within a contiguous area and under

common control that emits or has the

potential to emit, in the aggregate, 10

tons per year (tpy) or more of any

hazardous air pollutant (HAP)

(including any fugitive emissions of

such pollutant) which has been listed

pursuant to section 112(b) of the Act, 25

tpy or more of any combination of such

HAP (including any fugitive emissions

of such pollutants), or such lesser

quantity as the Administrator may

establish by rule. Notwithstanding the

preceding sentence, emissions from any

oil or gas exploration or production well

(with its associated equipment) and

emissions from any pipeline compressor

or pump station shall not be aggregated

with emissions from other similar units,

whether or not such units are in a

contiguous area or under common

control, to determine whether such

units or stations are major sources; or

(ii) For radionuclides, ‘‘major source’’

shall have the meaning specified by the

Administrator by rule.

(2) A major stationary source of air

pollutants or any group of stationary

sources as defined in section 302 of the

Act, that directly emits, or has the

potential to emit, 100 tpy or more of any

air pollutant (including any fugitive

emissions of any such pollutant, as

determined by rule by the

Administrator). The fugitive emissions

of a stationary source shall not be

considered in determining whether it is

a major stationary source for the

purposes of section 302(j) of the Act or

for the purposes of paragraph (3) of this

definition, unless the source belongs to

one of the following categories of

stationary source:

(i) Coal cleaning plants (with thermal

dryers);

(ii) Kraft pulp mills;

(iii) Portland cement plants;

(iv) Primary zinc smelters;

(v) Iron and steel mills;

(vi) Primary aluminum ore reduction

plants;

(vii) Primary copper smelters;

(viii) Municipal incinerators capable

of charging more than 250 tons of refuse

per day;

(ix) Hydrofluoric, sulfuric, or nitric

acid plants;

(x) Petroleum refineries;

(xi) Lime plants;

(xii) Phosphate rock processing

plants;

(xiii) Coke oven batteries;

(xiv) Sulfur recovery plants;

(xv) Carbon black plants (furnace

process);

(xvi) Primary lead smelters;

(xvii) Fuel conversion plants;

(xviii) Sintering plants;

(xix) Secondary metal production

plants;

(xx) Chemical process plants;

(xxi) Fossil-fuel boilers (or

combination thereof) totaling more than

250 million British thermal units per

hour heat input;

(xxii) Petroleum storage and transfer

units with a total storage capacity

exceeding 300,000 barrels;

(xxiii) Taconite ore processing plants;

(xxiv) Glass fiber processing plants;

(xxv) Charcoal production plants;

(xxvi) Fossil-fuel-fired steam electric

plants of more than 250 million British

thermal units per hour heat input; or

(xxvii) All other stationary source

categories regulated by a standard

promulgated as of August 7, 1980, under

section 111 or 112 of the Act, but only

with respect to those air pollutants that

have been regulated for that category;

(3) A major stationary source as

defined in part D of title I of the Act,

including:

(i) For ozone nonattainment areas,

sources with the potential to emit 100

tpy or more of volatile organic

compounds or oxides of nitrogen in

areas classified as ‘‘marginal’’ or

‘‘moderate,’’ 50 tpy or more in areas

classified as ‘‘serious,’’ 25 tpy or more

in areas classified as ‘‘severe,’’ and 10

tpy or more in areas classified as

‘‘extreme;’’ except that the references in

this paragraph (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 (f)(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: That are classified

as ‘‘serious,’’ and in which stationary

sources contribute significantly to

carbon monoxide levels as determined

under rules issued by the Administrator,

sources with the potential to emit 50 tpy

or more of carbon monoxide; and

(iv) For particulate matter (PM–10)

nonattainment areas classified as

‘‘serious,’’ sources with the potential to

emit 70 tpy or more of PM–10 or, where

applicable, a PM–10 precursor.

Minor new source review (minor NSR)

means a title I program approved by

EPA into a State’s implementation plan

under EPA regulations implementing

section 110(a)(2) of title I of the Act for

the preconstruction review of changes

which are subject to review as new or

modified sources (40 CFR 51.160

through 51.164) and which do not

qualify as new major stationary sources

or major modifications under EPA

regulations implementing part C or D of

title I of the Act (40 CFR 51.165 through

51.166, 40 CFR part 51, subpart P, 40

CFR 52.21 through 52.29).

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.
20830 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

Part 70 program or State program

means an operating permits program

approved by the Administrator under 40

CFR part 70.

Part 70 source means any source

subject to the permitting requirements

of 40 CFR part 70.

Part 71 permit or permit (unless the

context suggests otherwise) means any

permit or group of permits covering a

part 71 source that has been issued,

renewed, amended or revised pursuant

to this part.

Part 71 program means a Federal

operating permits program under this

part.

Part 71 source means any source

subject to the permitting requirements

of this part, as provided in § 71.3(a) and

§ 71.3(b).

Permit program costs means all

reasonable (direct and indirect) costs

required to administer an operating

permits program, as set forth in § 71.9(b)

of this part.

Permit revision means any

administrative permit amendment, de

minimis permit revision, minor permit

revision, or significant permit revision.

Permitting authority means one of the

following:

(1) The Administrator, in the case of

EPA-implemented programs;

(2) A delegate agency authorized by

the Administrator to carry out a Federal

permit program under this part; or

(3) The State air pollution control

agency, local agency, other State agency,

Indian Tribe, or other agency with a part

70 program.

Potential to emit means the maximum

capacity of a stationary source to emit

any air pollutant under its physical and

operational design. Any physical or

operational limitation on the capacity of

a source to emit an air pollutant,

including air pollution control

equipment and restrictions on hours of

operation or on the type or amount of

material combusted, stored, or

processed, shall be treated as part of its

design if the limitation is enforceable by

the Administrator and by citizens under

the Act. This term does not alter or

affect the use of this term for any other

purposes under the Act, or the term

‘‘capacity factor’’ as used in title IV of

the Act or 40 CFR parts 72 through 78.

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) requirement.

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 vicepresident of the corporation in charge of

a principal business function, or any

other person who performs similar

policy or decision-making functions for

the corporation, or a duly authorized

representative of such person if the

representative is responsible for the

overall operation of one or more

manufacturing, production, or operating

facilities applying for or subject to a

permit and either:

(i) The facilities employ more than

250 persons or have gross annual sales

or expenditures exceeding $25 million

(in second quarter 1980 dollars); or

(ii) The delegation of authority to

such representative is approved in

advance by the permitting authority;

(2) For a partnership or sole

proprietorship: a general partner or the

proprietor, respectively;

(3) For a municipality, State, Federal,

or other public agency: either a

principal executive officer or ranking

elected official. For the purposes of this

part, a principal executive officer of a

Federal agency includes the chief

executive officer having responsibility

for the overall operations of a principal

geographic unit of the agency (e.g., a

Regional Administrator of EPA); or

(4) For affected sources:

(i) The designated representative for

all actions, standards, requirements, or

prohibitions under title IV of the Act or

40 CFR parts 72 through 78; or

(ii) The designated representative or a

person meeting the provisions of

paragraph (1), (2), or (3) of this

definition for any other purposes under

part 71.

State means any non-Federal

permitting authority, including any

local agency, interstate association, or

statewide program. The term ‘‘State’’

also includes the District of Columbia,

the Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa,

and the Commonwealth of the Northern

Marianas Islands. Where such meaning

is clear from the context, ‘‘State’’ shall

have its conventional meaning. For

purposes of the acid rain program, the

term ‘‘State’’ shall be limited to

authorities within the 48 contiguous

States and the District of Columbia as

provided in section 402(14) of the Act.

Stationary source means any building,

structure, facility, or installation that

emits or may emit any regulated air

pollutant or any pollutant listed under

section 112(b) of the Act.

Title I modification or modification

under any provision of title I of the Act

means any modification under part C or

part D of title I or sections 110(a)(2),

111(a)(4), 112(a)(5), or 112(g) of the Act;

under regulations codified in this

chapter to implement sections 112(a)(5)

and 112(g) of the Act or in 40 CFR

51.160 through 51.164, 40 CFR part 60,

or in 40 CFR 61.07; or under State

regulations approved by EPA to meet

such requirements.

Tribal area means, for the purposes of

the regulations under this part, those

lands over which an Indian Tribe has

authority under the Clean Air Act to

regulate air quality. These lands include

all areas within the exterior boundaries

of an Indian reservation and any other

areas outside reservation boundaries

that EPA determines to be within a

Tribe’s inherent authority.
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20831

§ 71.3 Sources subject to permitting

requirements.

(a) Part 71 sources. The following

sources are subject to the permitting

requirements under this part:

(1) Any major source, except that a

source is not required to obtain a permit

if it would be classified as a major

source solely because it has the

potential to emit major amounts of a

pollutant listed pursuant to section

112(r)(3) of the Act and is not otherwise

required to obtain a permit under this

part;

(2) Any source, including an area

source (i.e., a nonmajor source), subject

to a standard, limitation, or other

requirement under section 111 of the

Act;

(3) Any source, including an area

source (i.e., a nonmajor source), subject

to a standard or other requirement

under section 112 of the Act, except that

a source is not required to obtain a

permit solely because it is subject to

regulations or requirements under

section 112(r) of the Act;

(4) Any source required to have a

permit under part C or D of title I of the

Act;

(5) Any affected source; and

(6) Any source in a source category

designated by the Administrator

pursuant to this section.

(b) Source category exemptions.

(1) All sources listed in paragraph (a)

of this section that are not major

sources, affected sources, or solid waste

incineration units required to obtain a

permit pursuant to section 129(e) of the

Act are exempted from the obligation to

obtain a part 71 permit until such time

as the Administrator completes a

rulemaking to determine how the

program should be structured for

nonmajor sources and the

appropriateness of any permanent

exemptions in addition to those

provided for in paragraph (b)(4) of this

section.

(2) Nonmajor sources subject to a

standard or other requirement under

either section 111 or 112 of the Act after

July 21, 1992 shall be exempted from

the obligation to obtain a part 71 permit

if the Administrator exempts such

sources from the requirement to obtain

a part 70 or part 71 permit at the time

that the new standard is promulgated.

(3) Any source listed in paragraph (a)

of this section that is exempt from the

requirement to obtain a permit under

this section may opt to apply for a

permit under a part 71 program.

(4) The following source categories

are exempted from the obligation to

obtain a part 71 permit:

(i) All sources and source categories

that would be required to obtain a

permit solely because they are subject to

40 CFR part 60, Subpart AAA—

Standards of Performance for New

Residential Wood Heaters; and

(ii) All sources and source categories

that would be required to obtain a

permit solely because they are subject to

40 CFR part 61, Subpart M—National

Emission Standard for Hazardous Air

Pollutants for Asbestos, § 61.145,

Standard for Demolition and

Renovation.

§ 71.4 Program implementation.

(a) Part 71 programs for States. The

Administrator will administer and

enforce a full or partial operating

permits program for a State (excluding

Tribal areas) in the following situations:

(1) A program for a State meeting the

requirements of part 70 of this chapter

has not been granted full approval

under § 70.4 of this chapter by the

Administrator by November 15, 1995,

and the State’s part 70 program has not

been granted interim approval under

§ 70.4(d) of this chapter for a period

extending beyond November 15, 1995.

The effective date of such a part 71

program is November 15, 1995.

(2) An operating permits program for

a State which was granted interim

approval under § 70.4(d) of this chapter

has not been granted full approval by

the Administrator by the expiration of

the interim approval period or

November 15, 1995, whichever is later.

Such a part 71 program shall be

effective upon expiration of the interim

approval or November 15, 1995,

whichever is later.

(3) Any partial part 71 program will

be effective only in those portions of a

State that are not covered by a partial

part 70 program that has been granted

full or interim approval by the

Administrator pursuant to § 70.4(c) of

this chapter.

(b) Part 71 programs for Tribal areas.

The Administrator may administer and

enforce an operating permits program

for a Tribal area, as defined in § 71.2,

when an operating permits program for

the area which meets the requirements

of part 70 of this chapter has not been

granted full or interim approval by the

Administrator by November 15, 1995.

(1) Determining the boundaries of a

Tribal area. At least 90 days prior to the

effective date of a part 71 program for

a Tribal area, the Administrator shall

notify all appropriate governmental

entities of the proposed geographic

boundaries of the program.

(i) For programs solely addressing air

resources within the exterior boundaries

of the Reservation, EPA’s notification of

other governmental entities shall specify

the geographic boundaries of the

Reservation. For programs also

addressing off-reservation areas, EPA’s

notification of other governmental

entities shall include the substance and

bases of the Tribe’s assertions of

jurisdiction over such off-reservation

area(s), including:

(A) A map or legal description of the

off-reservation area(s) over which the

Tribe asserts jurisdiction.

(B) A statement by the Tribe’s legal

counsel (or equivalent official) which

describes the basis for the Tribe’s

assertion of jurisdiction which may

include a copy of documents such as

Tribal constitutions, by-laws, charters,

executive orders, codes, ordinances,

and/or resolutions which support the

Tribe’s assertion of jurisdiction over the

off-reservation area(s).

(ii) The appropriate governmental

entities shall have 15 days to provide

written comments to the Administrator

regarding any dispute concerning the

boundary of the Reservation. Where a

Tribe has asserted jurisdiction over offreservation areas, appropriate

governmental entities may request a

single 15-day extension to the general

15-day comment period.

(iii) In all cases, comments must be

timely, limited to the scope of the

Tribe’s jurisdictional assertion, and

clearly explain the substance, bases and

extent of any objections. If a Tribe’s

assertion is subject to a conflicting

claim, the EPA may request additional

information and may consult with the

Department of the Interior.

(iv) The Administrator shall promptly

decide the scope of the Tribe’s

jurisdiction. If a conflicting claim

cannot be promptly resolved, the

Administrator shall implement a part 71

program encompassing all undisputed

areas.

(v) The part 71 program will extend

to all areas within the exterior

boundaries of the Tribe’s reservation, as

determined by the Administrator, and

any other areas the Administrator has

determined to be within the Tribe’s

jurisdiction.

(vi) The Administrator’s

determination of the scope of the Tribe’s

jurisdiction shall be published in the

Federal Register at least 30 days prior

to the effective date of the part 71

program.

(2) The effective date of a part 71

program for a Tribal area shall be

November 15, 1997.

(3) Notwithstanding paragraph (b)(2)

of this section, the Administrator, in

consultation with the governing body of

the Tribal area, may adopt an earlier

effective date.

(4) Notwithstanding paragraph (i)(2)

of this section, within two years of the
20832 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

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 [Effective date of the final

regulations].

(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 [Effective date of the

final regulations].

(f) Use of selected provisions of this

part. The Administrator may utilize any

or all of the provisions of this part to

administer the permitting process for

individual sources or take action on

individual permits, or may adopt

through rulemaking portions of a State

or Tribal program in combination with

provisions of this part to administer a

Federal program for the State or Tribal

area in substitution of or addition to the

Federal program otherwise required by

this part.

(g) Public notice of part 71 programs.

In taking action to administer and

enforce an operating permits program

under this part, the Administrator will

publish a notice in the Federal Register

informing the public of such action and

the effective date of any part 71 program

as set forth in § 71.4 (a), (b), (c), or

(d)(1)(ii). 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 notice

referred to in paragraph (g) of this

section will define the respective roles

of the State or eligible Tribe and the
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20833

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 fully meets the

requirements of part 70 of this chapter.

The Administrator may retain

jurisdiction over the part 71 permits for

which the administrative or judicial

review process is not complete and will

address this issue in the notice of State

program approval. After approval of a

State or Tribal program and the

suspension of issuance of part 71

permits by the Administrator:

(1) The Administrator, or the

permitting authority acting as the

Administrator’s delegated agent, will

continue to administer and enforce part

71 permits until they are replaced by

permits issued under the approved part

70 program. Until such time as part 71

permits are replaced by part 70 permits,

the Administrator will revise, reopen,

revise, terminate, or revoke and reissue

part 71 permits using the procedures of

the part 71 program. However, if the

Administrator has delegated authority to

administer part 71 permits to a delegate

agency, the delegate agency will revise,

reopen, terminate, or revoke and reissue

part 71 permits using the procedures of

the approved part 70 program. If a part

71 permit expires prior to the issuance

of a part 70 permit, all terms and

conditions of the part 71 permit,

including any permit shield that may be

granted pursuant to § 71.6(n), shall

remain in effect until the part 70 permit

is issued or denied, provided that a

timely and complete application for a

permit renewal was submitted to the

permitting authority in accordance with

the requirements of the approved part

70 program.

(2) A State or local agency or Indian

Tribe with an approved part 70

operating permits program may issue

part 70 permits for all sources with part

71 permits in accordance with a permit

issuance schedule approved as part of

the approved part 70 program or may

issue part 70 permits to such sources at

the expiration of the part 71 permits.

(3) The Administrator shall rescind

the part 71 permit for a source when it

is replaced by a part 70 permit issued

under the approved part 70 program.

(m) Exemption for certain territories.

Upon petition by the Governor of Guam,

American Samoa, the Virgin Islands, or

the Commonwealth of the Northern

Marianas Islands, the Administrator

may exempt any source or class of

sources in such territory from the

requirement to have a part 71 permit

under this chapter. Such an exemption

does not exempt such source or class of

sources from any requirement of section

112 of the Act, including the

requirements of section 112(g) or (j).

(1) Such exemption may be granted if

the Administrator finds that compliance

with part 71 is not feasible or is

unreasonable due to unique

geographical, meteorological, or

economic factors of such territory, or

such other local factors as the

Administrator deems significant. Any

such petition shall be considered in

accordance with section 307(d) of the

Act, and any exemption granted under

this paragraph (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. The owner or

operator of a source required to obtain

a permit under § 71.3 shall submit a

timely and complete permit application

in accordance with this section.

(b) Timely application.

(1) A timely application for a source

which does not have an existing

operating permit issued by a State under

the State’s approved part 70 program

and is applying for a part 71 permit for

the first time is one that is submitted

within 12 months or an earlier date after

the source becomes subject to the part

71 program. Sources required to submit

applications earlier than 12 months will

be notified in advance by the permitting

authority of this paragraph (b)(1) and

given a reasonable time to submit their

applications. In no case will this notice

be given less than 120 days in advance

of the submittal date.

(2) For purposes of changes eligible

under § 71.6(q), a timely application is

one that is submitted not later than 6

months after the notice required under

§ 71.6(q)(3).

(3) For purposes of permit revisions

other than changes eligible under

§ 71.6(g), a timely application is one that

is submitted by the relevant deadlines

set forth in § 71.7(e), (f), (g), or (h).

(4) For purposes of permit renewal, a

timely application is one that is

submitted at least 6 months but no

longer than 18 months prior to the date

of the part 70 or part 71 permit

expiration.

(5) Applications for initial phase II

acid rain permits shall be submitted to

the permitting authority by January 1,

1996 for sulfur dioxide, and by January

1, 1998 for nitrogen oxides or by such

other deadlines established under title

IV of the Act and 40 CFR parts 72

through 78.

(c) Complete application. To be found

complete, an application must provide

all information required pursuant to

paragraph (f) of this section sufficient to

allow the permitting authority to begin

processing the application, except that

an application for a permit revision

need supply such information only if it

is related to the proposed change.

Additionally, an initial applicant must

remit payment of any fees owed

pursuant to § 71.9 in order for the

application to be found complete. The

information supplied by the applicant

pursuant to paragraph (f) of this section

must be sufficient to evaluate the

subject source and its application and to

determine all applicable requirements.

A responsible official shall certify the

submitted information consistent with

paragraph (i) of this section. Unless the

permitting authority determines that an

application is not complete within 60

days of receipt of the application, such

application shall be deemed to be

complete, except as otherwise provided

in § 71.7(a)(3). If, while processing an

application that has been determined or

deemed to be complete, the permitting

authority determines that additional

information is necessary to evaluate or

take final action on that application, the
20834 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

permitting authority may request such

information in writing and set a

reasonable deadline for a response. The

source’s ability to operate without a

permit, as set forth in § 71.7(b), shall be

in effect from the date the application is

determined or deemed to be complete

until the final permit is issued, provided

that the applicant submits any requested

additional information by the deadline

specified by the permitting authority.

(d) Confidential information. In a case

where a source submits information to

the permitting authority under a

business confidentiality claim, the

permitting authority will follow

procedures found at 40 CFR part 2.

Pursuant to § 2.301(e) of this chapter,

information contained in the permit

application regarding emissions data or

a standard or limitation is not entitled

to confidential treatment.

(e) Duty to supplement or correct

application. Any applicant who fails to

submit any relevant facts or who has

submitted incorrect information in a

permit application shall, upon

becoming aware of such failure or

incorrect submittal, promptly submit

such supplementary facts or corrected

information. In addition, an applicant

shall provide additional information as

necessary to address any requirements

that become applicable to the source

after the date it filed a complete

application but prior to release of a draft

permit.

(f) Standard application form. Part 71

sources shall submit the following

information using application forms

provided by the permitting authority (or

if provided by the permitting authority,

an electronic reporting method).

Information as described in this

paragraph (f) for each emissions unit at

a part 71 source shall be included in the

application. A complete part 71 permit

application shall include the following

elements:

(1) Identifying information, including

company name and address (or plant

name and address if different from the

company name), owner’s name and

agent, and telephone numbers and

names of plant site managers/contacts.

(2) A description of the source’s

processes and products (by Standard

Industrial Classification Code) including

any associated with each alternate

scenario identified by the source.

(3) The following emissions-related

information:

(i) All emissions of pollutants for

which the source is major, and all

emissions of regulated air pollutants. A

permit application shall describe all

emissions of regulated air pollutants

emitted from any emissions unit, except

where such units are exempted under

paragraph (g) of this section. Fugitive

emissions shall be included in the

permit application in the same manner

as stack emissions for each emissions

unit, regardless of whether the source

category in question is included in the

list of sources contained in the

definition of major source. Moreover,

information related to the emissions of

air pollutants sufficient to verify which

requirements are applicable to the

source, and other information necessary

to collect any permit fees owed under

the fee schedule established pursuant to

§ 71.9 must be provided.

(ii) Identification and description of

all points of emissions described in

paragraph (f)(3)(i) of this section in

sufficient detail to establish the basis for

fees and applicability of requirements of

the Act.

(iii) Emissions rates in tpy and in

such additional terms as are necessary

to establish compliance consistent with

the applicable standard reference test

method.

(iv) The following information to the

extent it is needed to determine or

regulate emissions: fuels, fuel use, raw

materials, production rates, and

operating schedules.

(v) Identification and description of

air pollution control equipment and

compliance monitoring devices or

activities, including brief descriptions of

any appropriate operation and

maintenance procedures and quality

assurance procedures.

(vi) Limitations on source operation

affecting emissions or any work practice

standards, where applicable, for all

regulated air pollutants at the part 71

source.

(vii) Other information required by

any applicable requirement (including,

but not limited to, stack height

limitations developed pursuant to

section 123 of the Act).

(viii) Calculations on which the

information in paragraphs (f)(3)(i)

through (vii) of this section is based.

(4) The following air pollution control

requirements:

(i) Citation and description of all

applicable requirements, and

(ii) Description of or reference to any

applicable test method for determining

compliance with each applicable

requirement.

(5) Other specific information that

may be necessary to implement and

enforce other applicable requirements of

the Act or of this part or to determine

the applicability of such requirements.

(6) An explanation of any proposed

exemptions from otherwise applicable

requirements.

(7) Additional information as

determined to be necessary by the

permitting authority to define

alternative operating scenarios

identified by the source pursuant to

§ 71.6(a)(8) or to define permit terms

and conditions implementing

§ 71.6(a)(9) or § 71.6(p).

(8) Identification of those emissions

units eligible for emissions trading

under § 71.6(a)(9) and those emissions

units at which changes may be

processed under de minimis permit

revision procedures contained in

§ 71.7(f).

(9) A compliance plan for all part 71

sources that contains all the following:

(i) A description of the compliance

status of the source with respect to all

applicable requirements.

(ii) A description as follows:

(A) For applicable requirements with

which the source is in compliance, a

statement that the source will continue

to comply with such requirements.

(B) For applicable requirements that

will become effective during the permit

term, a statement that the source will

meet such requirements on a timely

basis.

(C) For requirements for which the

source is not in compliance at the time

of permit issuance, a narrative

description of how the source will

achieve compliance with such

requirements.

(iii) A compliance schedule as

follows:

(A) For applicable requirements with

which the source is in compliance, a

statement that the source will continue

to comply with such requirements.

(B) For applicable requirements that

will become effective during the permit

term, a statement that the source will

meet such requirements on a timely

basis. A statement that the source will

meet in a timely manner applicable

requirements that become effective

during the permit term shall satisfy this

provision, unless a more detailed

schedule is expressly required by the

applicable requirement.

(C) A schedule of compliance for

sources that are not in compliance with

all applicable requirements at the time

of permit issuance. Such a schedule

shall include a schedule of remedial

measures, including an enforceable

sequence of actions with milestones,

leading to compliance with any

applicable requirements for which the

source will be in noncompliance at the

time of permit issuance. This

compliance schedule shall resemble and

be at least as stringent as that contained

in any judicial consent decree or

administrative order to which the

source is subject. Any such schedule of

compliance shall be supplemental to,

and shall not sanction noncompliance
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20835

with, the applicable requirements on

which it is based.

(iv) A schedule for submission of

certified progress reports every 6

months for sources required to have a

schedule of compliance to remedy a

violation, unless more frequent

submittals are required in the applicable

requirement or by the permitting

authority.

(v) For affected sources applying for

part 71 permits, the compliance plan

content requirements specified in this

paragraph (f)(9) must be met for all

applicable requirements, including the

applicable requirements of title IV of the

Act. For permit applications required

under the acid rain program, the

compliance plan content requirements

of 40 CFR part 72, subpart D must be

met.

(10) Requirements for compliance

certification, including the following:

(i) A certification of compliance with

all applicable requirements by a

responsible official consistent with

paragraph (i) of this section and section

114(a)(3) of the Act;

(ii) A statement of methods used for

determining compliance, including a

description of monitoring,

recordkeeping, and reporting

requirements and test methods;

(iii) A schedule for annual

submissions of compliance

certifications during the permit term, or

for more frequent submissions if

specified by the underlying applicable

requirement or by the permitting

authority; and

(iv) A statement indicating the

source’s compliance status with any

applicable enhanced monitoring and

compliance certification requirements of

the Act.

(11) The use of nationallystandardized forms for acid rain

portions of permit applications and

compliance plans, as required by 40

CFR part 72.

(12) Temporary sources requesting a

single permit for multiple sites must

also provide in the permit application

ambient air quality standard and

increment and visibility analyses as

required under part C of title I of the

Act.

(g) Insignificant activities and

emissions levels. The following types of

insignificant activities and emissions

levels are exempt from the requirements

of paragraph (f) of this section.

Notwithstanding the preceding

sentence, no activity or emission levels

shall be exempt from the requirements

of paragraph (f) of this section if the

information omitted from the

application is needed to determine the

applicability of or to impose any

applicable requirement, to determine

whether a source is major, to determine

whether a source is subject to the

requirement to obtain a part 71 permit,

or to calculate the fee amount required

under the schedule established pursuant

to § 71.9.

(1) Insignificant activities. Information

concerning the following activities need

not be provided in the application:

(i) Mobile sources;

(ii) Air-conditioning units used for

human comfort that do not use a class

I or class II ozone depleting substance

and do not exhaust air pollutants into

the ambient air from any manufacturing

or other industrial process;

(iii) Ventilating units used for human

comfort that do not exhaust air

pollutants into the ambient air from any

manufacturing or other industrial

process;

(iv) Heating units used for human

comfort that do not provide heat for any

manufacturing or other industrial

process;

(v) Noncommercial food preparation;

(vi) Consumer use of office equipment

and products;

(vii) Janitorial services and consumer

use of janitorial products; and

(viii) Internal combustion engines

used for landscaping purposes.

(2) Insignificant emissions levels.

Emissions meeting the criteria in

paragraph (g)(2)(i) or (g)(2)(ii) of this

section need not be included in the

application consistent with paragraph

(f) of this section, but must be listed

with sufficient detail to identify the

emission unit and indicate that the

exemption applies. Similar emission

units, including similar capacities or

sizes, may be listed under a single

description, provided the number of

emission units is included in the

description. No additional information

is required at time of application, but

the permitting authority may request

additional information during

application processing.

(i) Emission criteria for regulated air

pollutants, excluding hazardous air

pollutants (HAP). Potential to emit of

regulated air pollutants, excluding HAP,

for any single emissions unit shall not

exceed 1 tpy, except in extreme ozone

nonattainment areas, where potential to

emit may not exceed 1,000 pounds (lb)

per year. Aggregate emissions of any

regulated air pollutant, excluding HAP,

from all emission units shall not exceed

potential to emit of 10 tpy, except in

extreme ozone nonattainment areas,

where potential to emit may not exceed

5 tpy.

(ii) Emission criteria for HAP.

Potential to emit of any HAP from any

single emissions unit shall not exceed

1,000 lb per year or the de minimis level

established under section 112(g) of the

Act, whichever is less. Aggregate

emissions of all HAP from all emission

units shall not exceed potential to emit

of 5 tpy or the de minimis levels

established under section 112(g) of the

Act, whichever is less.

(h) Application for coverage under a

general permit. Part 71 sources that

qualify for a general permit must apply

to the permitting authority for coverage

under the terms of the general permit or

must apply for a part 71 permit

consistent with this section. The

permitting authority may provide for

applications for general permits which

deviate from the requirements of this

section, provided that such applications

meet the requirements of Title V of the

Act, and include all information

necessary to determine qualification for,

and assure compliance with, the general

permit.

(i) Certification by a responsible

official. Any application form, report, or

compliance certification submitted

pursuant to these regulations shall

contain certification by a responsible

official of truth, accuracy, and

completeness. This certification and any

other certification required under this

part shall state that, based on

information and belief formed after

reasonable inquiry, the statements and

information in the document are true,

accurate, and complete.

§ 71.6 Permit content.

(a) Standard permit requirements.

Each permit issued under this part shall

include the following elements:

(1) Emission limitations and

standards, including those operational

requirements and limitations that assure

compliance with all applicable

requirements at the time of permit

issuance.

(i) The permit shall specify and

reference the origin of and authority for

each term or condition, and identify any

difference in form as compared to the

applicable requirement upon which the

term or condition is based.

(ii) The permit shall state that where

an applicable requirement of the Act is

more stringent than an applicable

requirement of 40 CFR parts 72 through

79, both provisions shall be

incorporated into the permit and shall

be enforceable by the Administrator.

(iii) If an applicable implementation

plan allows a determination of an

alternative emission limit at a part 71

source, equivalent to that contained in

the plan, to be made in the permit

issuance, renewal, or significant permit

revision process, and the permitting

authority elects to use such process, any
20836 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

permit containing such equivalency

determination shall contain provisions

to ensure that any resulting emissions

limit has been demonstrated to be

quantifiable, accountable, enforceable,

and based on replicable procedures.

(iv) Emission units and part 71

sources.

(A) For major sources, the permitting

authority shall include in the permit all

applicable requirements for all relevant

emissions units in the major source.

(B) For any nonmajor source subject

to the part 71 program, the permitting

authority shall include in the permit all

applicable requirements applicable to

emissions units that caused the source

to be subject to the part 71 program.

(2) Permit duration. The permitting

authority shall issue permits for a fixed

term of 5 years in the case of affected

sources, and for a term not to exceed 5

years in the case of all other sources.

Notwithstanding this requirement, the

permitting authority shall issue permits

for solid waste incineration units

combusting municipal waste subject to

standards under section 129(e) of the

Act for a period not to exceed 12 years

and shall review such permits at least

every 5 years. The permit shall state

when the source’s application for

renewal must be submitted to the

permitting authority consistent with

§ 71.5.

(3) For affected sources, a permit

condition prohibiting any affected unit

from emitting sulfur dioxide in excess of

any allowances that the affected unit

lawfully holds under title IV of the Act

or 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 unit.

The unit may not, however, use

allowances as a defense to

noncompliance with any other

applicable requirement.

(iii) Any such allowance shall be

accounted for according to the

procedures established in regulations 40

CFR parts 72 through 78.

(4) A severability clause to ensure the

continued validity of the various permit

requirements in the event of a challenge

to any portion of the permit.

(5) Provisions stating the following:

(i) The source must comply with all

conditions of the part 71 permit. Any

permit noncompliance constitutes a

violation of the Act and is grounds for

enforcement action; for permit

termination, revocation and reissuance,

or modification; or for denial of a permit

renewal application.

(ii) Need to halt or reduce activity not

a defense. It shall not be a defense for

a source in an enforcement action that

it would have been necessary to halt or

reduce the permitted activity in order to

maintain compliance with the

conditions of this permit.

(iii) The permit may be modified,

revoked, reopened and reissued, or

terminated for cause. The filing of a

request by the source for a permit

revision, revocation and reissuance, or

termination, or of a notification of

planned changes or anticipated

noncompliance does not stay any permit

condition.

(iv) The permit does not convey any

property rights of any sort, or any

exclusive privilege.

(v) The permittee shall furnish to the

permitting authority, within a

reasonable time, any information that

the permitting authority may request in

writing to determine whether cause

exists for revising, revoking and

reissuing, or terminating the permit or

to determine compliance with the

permit, including copies of records

required to be kept by the permit. The

source may assert a claim of

confidentiality consistent with section

114(c) of the Act and 40 CFR part 2 with

respect to any such requested

information.

(vi) A schedule of compliance does

not sanction noncompliance with the

applicable requirement on which it is

based.

(6) A provision to ensure that a part

71 source pays fees to the permitting

authority consistent with the fee

schedule in § 71.9.

(7) Emissions trading. A provision

stating that no permit revision shall be

required under any economic

incentives, marketable permits,

emissions trading or other similar

programs or processes approved in an

implementation plan or other applicable

requirement authorizing such changes

to be provided for in the permit and

where the permit provides for such

changes.

(8) Terms and conditions for

reasonably anticipated operating

scenarios identified by the source in its

application as approved by the

permitting authority. Such terms and

conditions:

(i) Shall require the source,

contemporaneously with making a

change from one operating scenario to

another, to record in a log at the

permitted facility a record of the

scenario under which it is operating.

Provided that each of the alternative

scenarios available for a particular unit

is monitored in a way that yields

objective, contemporaneous

measurement and recordation of

relevant emissions or parameters and

that the means of measurement are

sufficiently different for each of the

scenarios that the contemporaneous

record reveals the scenario under which

the source was operating when the

record was made, no further notice to

the permitting authority is required.

Otherwise, the permit shall require that

when any change is made between

alternative scenarios, the permittee at

the beginning of the following week

shall place in regular mail to the

permitting authority notice of such

change(s) between scenarios, which

could consist of a copy of the relevant

portion of the on-site log indicating the

scenario(s) under which the source

operated during the previous week;

(ii) May extend the permit shield

described in paragraph (f) of this section

to all terms and conditions under each

such operating scenario; and

(iii) Must ensure that the terms and

conditions of each such alternative

scenario meet all applicable

requirements and the requirements of

this part.

(9) Terms and conditions, if the

permit applicant requests them, for the

trading of emissions increases and

decreases in the permitted facility, to

the extent that the applicable

requirements provide for trading such

increases and decreases without a caseby-case approval of any emissions trade.

Such terms and conditions:

(i) Shall include all terms required

under paragraphs (a) and (c) of this

section to ensure compliance;

(ii) May extend the permit shield

described in paragraph (f) of this section

to all terms and conditions that allow

such increases and decreases in

emissions; and

(iii) Must meet all applicable

requirements and the requirements of

this part.

(b) Federally-enforceable

requirements. All terms and conditions

in a part 71 permit, including any

provisions designed to limit a source’s

potential to emit, shall be enforceable by

the Administrator and citizens under

the Act.

(c) Compliance requirements. All part

71 permits shall contain testing,

monitoring, reporting, recordkeeping

and compliance certification

requirements sufficient to assure

compliance with the terms and

conditions of the permit consistent with

the following provisions of this section.

Any document (including reports)

required to be submitted by a part 71

permit shall contain a certification by a
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20837

responsible official that meets the

requirements of § 71.5(i).

(d) Monitoring requirements. Each

permit shall contain the following

requirements with respect to

monitoring:

(1) All emissions monitoring and

analysis procedures or test methods

required under the applicable

requirements, including any procedures

and methods promulgated pursuant to

sections 114(a)(3) or 504(b) of the Act;

(2) Where the applicable requirement

does not require periodic testing or

instrumental or noninstrumental

monitoring (which may consist of

recordkeeping designed to serve as

monitoring), periodic monitoring

sufficient to yield reliable data from the

relevant time period that are

representative of the source’s

compliance with the permit, as reported

pursuant to paragraph (f) of this section.

Such monitoring requirements shall

assure use of terms, test methods, units,

averaging periods, and other statistical

conventions consistent with the

applicable requirement. Recordkeeping

provisions may be sufficient to meet the

requirements of this paragraph (d)(2);

and

(3) As necessary, requirements

concerning the use, maintenance, and,

where appropriate, installation of

monitoring equipment or methods.

(e) Recordkeeping requirements. Each

permit shall contain the following

requirements with respect to

recordkeeping:

(1) All applicable recordkeeping

requirements;

(2) Where applicable, a requirement to

maintain records of required monitoring

information that include the following:

(i) The date, place as defined in the

permit, and time of sampling or

measurements;

(ii) The date(s) analyses were

performed;

(iii) The company or entity that

performed the analyses;

(iv) The analytical techniques or

methods used;

(v) The results of such analyses; and

(vi) The operating conditions as

existing at the time of sampling or

measurement; and

(3) Retention of records of all required

monitoring data and support

information for a period of at least 5

years from the date of the monitoring

sample, measurement, report, or

application. Support information

includes all calibration and

maintenance records and all original

strip-chart recordings for continuous

monitoring instrumentation, and copies

of all reports required by the permit.

(f) Reporting and notification

requirements. Each permit shall contain

the following requirements with respect

to reporting and notification:

(1) All applicable reporting

requirements.

(2) Submittal of reports of any

required monitoring at least every 6

months or more frequently if required

by the applicable requirement or by the

permitting authority. All instance of

deviations from permit requirements

must be clearly identified in such

reports. All required reports must be

certified by a responsible official

consistent with § 71.5(i).

(3) Prompt reporting of deviations

from permit requirements, including

those attributable to upset conditions as

defined in the permit, the probable

cause of such deviations, and any

corrective actions or preventive

measures taken. Where the underlying

applicable requirement contains a

definition of prompt or otherwise

specifies a time frame for reporting

deviations, that definition or time frame

shall govern. Where the underlying

applicable requirement fails to address

the time frame for reporting deviations,

reports of deviations shall be submitted

to the permitting authority based on the

following schedule:

(i) For emissions of a hazardous air

pollutant or a toxic air pollutant (as

identified in an applicable regulation)

that continue for more than an hour in

excess of permit requirements, the

report must be made with 24 hours of

the occurrence.

(ii) For emissions of any regulated air

pollutant, excluding those listed in

paragraph (f)(3)(i) of this section, that

continue for more than two hours in

excess of permit requirements, the

report must be made within 48 hours.

(iii) A permit may contain a more

stringent reporting requirement than

required by paragraphs (f)(3)(i) and (ii)

of this section.

(A) If any of the above conditions are

met, the source must notify the

permitting authority by telephone or

facsimile based on the timetable listed

in paragraphs (f)(3)(i) through (iii) of

this section. A written notice, certified

consistent with § 71.5(i), must be

submitted within 10 working days of the

occurrence.

(B) All deviations reported under

paragraph (f)(3) of this section must also

be identified in the 6 month report

required under paragraph (f)(2) of this

section.

(4) For purposes of paragraph (f)(3) of

this section, deviation means any

condition determined by observation,

data from an enhanced monitoring

protocol, any other monitoring protocol,

or any other monitoring which is

required by the permit that can be used

to determine compliance, that identifies

that an emission unit subject to a part

71 permit term or condition has failed

to meet an applicable emission

limitation or standard or that a work

practice was not complied with or

completed. For a condition lasting more

than 24 hours which constitutes a

deviation, each 24 hour period is

considered a separate deviation.

Included in the meaning of deviation

are any of the following:

(i) A condition where emissions

exceed an emission limitation or

standard;

(ii) A condition where process or

control device parameter values

demonstrate that an emission limitation

or standard has not been met;

(iii) Any other condition in which

observations or data collected

demonstrates noncompliance with an

emission limitation or standard or any

work practice or operating condition

required by the permit.

(g) Compliance certification

requirements. Each permit shall contain

the following requirements with respect

to compliance certifications with the

terms and conditions contained in the

permit, including emission limitations,

standards, or work practices:

(1) The frequency (not less than

annually or more frequently if specified

in the applicable requirement or by the

permitting authority) of submissions of

compliance certifications;

(2) In accordance with paragraph (d)

of this section, a means for monitoring

the compliance of the source with its

emissions limitations, standards, and

work practices;

(3) A requirement that the compliance

certification includes the following:

(i) The identification of each term or

condition of the permit that is the basis

of the certification;

(ii) The compliance status;

(iii) Whether compliance was

continuous or intermittent;

(iv) The method(s) used for

determining the compliance status of

the source, currently and over the

reporting period consistent with

paragraph (d) of this section;

(v) Such other facts as the permitting

authority may require to determine the

compliance status of the source; and

(vi) A requirement that all compliance

certifications be submitted to the

permitting authority.

(4) Such additional requirements as

may be specified pursuant to sections

114(a)(3) and 504(b) of the Act.

(h) Inspection and entry requirements.

Each permit shall contain inspection

and entry requirements that require that,
20838 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

upon presentation of credentials and

other documents as may be required by

law, the permittee shall allow the

permitting authority or an authorized

representative to perform the following:

(1) Enter upon the permittee’s

premises where a part 71 source is

located or emissions-related activity is

conducted, or where records must be

kept under the conditions of the permit;

(2) Have access to and copy, at

reasonable times, any records that must

be kept under the conditions of the

permit;

(3) Inspect at reasonable times any

facilities, equipment (including

monitoring and air pollution control

equipment), practices, or operations

regulated or required under the permit;

and

(4) As authorized by the Act, sample

or monitor at reasonable times

substances or parameters for the

purpose of assuring compliance with

the permit or applicable requirements.

(i) Compliance schedule. Each permit

shall contain a schedule of compliance

consistent with § 71.5(f)(9).

(j) Progress reports. Each permit shall

contain a requirement that the permittee

submit progress reports consistent with

an applicable schedule of compliance

and § 71.5(f)(9) to be submitted at least

semiannually, or more frequently if

required by the applicable requirement

or by the permitting authority. Such

progress reports shall contain the

following:

(1) Dates for achieving the activities,

milestones, or compliance required in

the schedule of compliance, and dates

when such activities, milestones or

compliance were achieved; and

(2) An explanation of why any dates

in the schedule of compliance were not

or will not be met, and any preventive

or corrective measures adopted.

(k) Other provisions. Each permit

shall contain such other provisions as

the permitting authority may require.

(l) General permits.

(1) The permitting authority may,

after notice and opportunity for public

participation provided under § 71.11,

issue a general permit covering

numerous similar sources. Any general

permit shall comply with all

requirements applicable to other part 71

permits and shall identify criteria by

which sources may qualify for the

general permit. To sources that qualify,

the permitting authority shall grant the

terms and conditions of the general

permit. Notwithstanding the shield

provisions of paragraph (n) of this

section, the source shall be subject to

enforcement action for operation

without a part 71 permit if the source is

later determined not to qualify for the

conditions and terms of the general

permit. General permits shall not be

authorized for affected sources under

the acid rain program unless otherwise

provided in regulations promulgated

under title IV of the Act (40 CFR part

72).

(2) 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, and such a grant shall be a final

permit action for purposes of judicial

review.

(3) The permitting authority shall

provide timely notice to the public of

any authorization given to a source to

operate under the terms of a general

permit. Such notice may be made on a

monthly, summarized basis covering all

sources receiving authorization since

the time of the last notice.

(m) Temporary sources. The

permitting authority may issue a single

permit authorizing emissions from

similar operations by the same source

owner or operator at multiple temporary

locations. The operation must be

temporary and involve at least one

change of location during the term of

the permit. No affected source shall be

permitted as a temporary source.

Permits for temporary sources shall

contain all of the terms and conditions

required by this section as well as the

following terms and conditions:

(1) Conditions that will assure

compliance with all applicable

requirements at all authorized locations;

(2) Requirements that the owner or

operator notify the permitting authority

at least 10 days in advance of each

change in location; and

(3) Conditions that assure compliance

with all other provisions of this section.

(n) Permit shield.

(1) Except as provided in this part, the

permitting authority may expressly

include in a part 71 permit a provision

stating that compliance with the terms

and conditions of the permit shall be

deemed compliance with any applicable

requirements as of the date of permit

issuance, provided that:

(i) Such applicable requirements are

included and are specifically identified

in the permit; or

(ii) The permitting authority, in acting

on the permit application or revision,

determines in writing that other

requirements specifically identified are

not applicable to the source, and the

permit includes the determination or a

concise summary thereof.

(2) A part 71 permit that does not

expressly state that a permit shield

exists shall be presumed not to provide

such a shield.

(3) Nothing in this paragraph (n) or in

any part 71 permit shall alter or affect

the following:

(i) The provisions of sections 112(r)(9)

and 303 of the Act (emergency orders),

including the authority of the

Administrator under those sections;

(ii) The liability of an owner or

operator of a source for any violation of

applicable requirements prior to or at

the time of permit issuance;

(iii) The applicable requirements of

the acid rain program, consistent with

section 408(a) of the Act; or

(iv) The ability of EPA to obtain

information from a source pursuant to

section 114 of the Act.

(o) Emergency provision.

(1) Definition. An ‘‘emergency’’ means

any situation arising from sudden and

reasonably unforeseeable events beyond

the control of the source, including acts

of God, which situation requires

immediate corrective action to restore

normal operation, and that causes the

source to exceed a technology-based

emission limitation under the permit,

due to unavoidable increases in

emissions attributable to the emergency.

An emergency shall not include

noncompliance to the extent caused by

improperly designed equipment, lack of

preventative maintenance, careless or

improper operation, or operator error.

(2) Effect of an emergency. An

emergency constitutes an affirmative

defense to an action brought for

noncompliance with such technologybased emission limitations if the

conditions of paragraph (o)(3) of this

section are met.

(3) The affirmative defense of

emergency shall be demonstrated

through properly signed,

contemporaneous operating logs, or

other relevant evidence that:

(i) An emergency occurred and that

the permittee can identify the cause(s)

of the emergency;

(ii) The permitted facility was at the

time being properly operated;

(iii) During the period of the

emergency the permittee took all

reasonable steps to minimize levels of

emissions that exceeded the emission

standards, or other requirements in the

permit; and

(iv) The permittee submitted notice of

the emergency to the permitting

authority within 2 working days of the

time when emission limitations were

exceeded due to the emergency. This

notice fulfills the requirement of

paragraph (f)(3) of this section. This

notice must contain a description of the

emergency, any steps taken to mitigate

emissions, and corrective actions taken.

(4) In any enforcement proceeding,

the permittee seeking to establish the
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20839

occurrence of an emergency has the

burden of proof.

(5) This provision is in addition to

any emergency or upset provision

contained in any applicable

requirement.

(p) Operational flexibility. A

permitted facility may make changes

without requiring a permit revision, if

the changes are not modifications under

any provision of title I of the Act and

the changes do not exceed the emissions

allowable under the permit (whether

expressed therein as a rate of emissions

or in terms of total emissions), provided

that the facility provides the permitting

authority with written notification as

required below in advance of the

proposed changes, which shall be a

minimum of 7 days. The source and the

permitting authority shall attach each

such notice to their copy of the relevant

permit.

(1) Trading under permitted

emissions cap. The permitting authority

shall include in a permit an emissions

cap, pursuant to a request submitted by

the applicant, consistent with any

specific emission limits or restrictions

otherwise required in the permit by any

applicable requirements, and permit

terms and conditions for emissions

trading solely for the purposes of

complying with that cap, provided that

the permitting authority finds that the

request contains adequate terms and

conditions, including all terms required

under § 71.6, to determine compliance

with the cap and with any emissions

trading provisions. The permit shall also

contain terms and conditions to assure

compliance with all applicable

requirements. The permit applicant

shall include in its application proposed

replicable procedures and permit terms

that ensure the emissions cap is

enforceable and trades pursuant to it are

quantifiable and enforceable. Any

permit terms and conditions

establishing such a cap or allowing such

trading may be established or changed

only in a full permit issuance, renewal,

or significant permit revision

procedures. The permitting authority

shall not be required to include in the

cap or emissions trading provisions any

emissions unit where the permitting

authority determines that the emissions

are not quantifiable or where it

determines that there are no replicable

procedures or practical means to enforce

the emissions trades.

(i) Under this paragraph (p)(1) of this

section, the written notification required

above shall state when the change will

occur and shall describe the changes in

emissions that will result and how these

increases and decreases in emissions

will comply with the terms and

conditions of the permit.

(ii) The permit shield described in

§ 71.6(n) may extend to terms and

conditions that allow such increases

and decreases in emissions.

(2) Trading under the implementation

plan. Permitted sources may trade

increases and decreases in emissions in

the permitted facility, where the

applicable implementation plan

provides for such emissions trades

without requiring a permit revision and

based on the 7-day notice prescribed in

paragraph (p) of this section. This

provision is available in those cases

where the permit does not already

provide for such emissions trading

provided the permit identifies which

permit terms may be replaced with the

emission trading provisions in the

implementation plan.

(i) Under paragraph (p)(2) of this

section, the written notification required

above shall include such information as

may be required by the provision in the

applicable implementation plan

authorizing the emissions trade,

including at a minimum, when the

proposed change will occur, a

description of each such change, any

change in emissions, the permit

requirements with which the source

will comply using the emissions trading

provisions of the applicable

implementation plan, and the pollutants

emitted subject to the emissions trade.

The notice shall also refer to the

provisions with which the source will

comply in the applicable

implementation plan and that provide

for the emissions trade.

(ii) The permit shield described in

§ 71.6(n) shall not extend to any change

made under paragraph (p) of this

section. Compliance with the permit

terms that the source will meet using

the emissions trade shall be determined

according to requirements of the

applicable implementation plan

authorizing the emissions trade.

(q) The permitting authority may

allow permittees, without first applying

for a permit revision, to make changes

that do not result in the source being in

violation of any permit term or

condition but render the source subject

to an applicable requirement to which

the source was not previously subject,

provided the requirements of

paragraphs (q)(1) through (8) of this

section are met.

(1) Each change shall:

(i) Meet all applicable requirements

and shall not violate or result in the

violation of any existing permit term or

condition; and

(ii) Not result in a net increase in the

allowable emissions of any regulated

pollutant at the source.

(2) The change may not be subject to

the requirements of title IV of the Act.

(3) Sources must provide

contemporaneous written notice to the

permitting authority of each such

change. Such written notice shall

describe each such change, the date of

the change, any change in emissions,

pollutants emitted, and the applicable

requirement to which the source

becomes subject as a result of the

change.

(4) The change shall not be eligible for

the permit shield under § 71.6(n) until

such time as a permit shield may be

granted in a subsequent permit revision

consistent with the provisions of

§§ 71.7(g) or 71.11.

(5) The permittee shall keep a record

describing changes made under this

paragraph (q).

(6) The permittee shall apply for a

permit revision by the deadline set forth

in § 71.5(b)(2), except that if the

deadline would occur after the date on

which a renewal application is due, the

permitting authority may allow the

permittee to incorporate the permit

revision request in its renewal

application.

(7) The permit shall be revised under

the relevant procedures of § 71.7(e), (f),

(g), or § 71.11 for which the change is

eligible, except that, notwithstanding

provisions in those sections, if the

change is subsequently processed under

minor permit revision or significant

permit revision procedures, and the

permitting authority or EPA (in the case

of a program delegated pursuant to

§ 71.10) determines that the change was

ineligible under this paragraph (q), then

the source shall be liable from the date

the change was made for failure to have

applied for a permit revision before the

change was made as required under

§ 71.7.

(8) If eligible for the minor permit

revision procedures of § 71.7(g), the

following provisions shall apply to

changes made under this paragraph (q):

(i) The public notice required under

§ 71.7(g)(3)(ii) shall state that if no

germane and non-frivolous objection is

received within 21 days of application,

the permitting authority may consider

that the change was eligible for

processing under this paragraph (q)

without further opportunity for public

objection. In addition to the provisions

of § 71.7(g)(3)(ii) a germane objection is

one that objects to the change on the

grounds that the source was ineligible

under this paragraph (q).
20840 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

(ii) The provisions of §§ 71.7(g)(5)(i)

and (ii) prohibiting the source from

making the change do not apply.

(iii) Notwithstanding the provisions of

§ 71.7(g)(7), the source must comply

with all applicable requirements from

the date the change was made.

§ 71.7 Permit review, issuance, renewal,

reopenings, and revisions.

(a) Action on application.

(1) A permit, permit revision, or

renewal may be issued only if all of the

following conditions have been met:

(i) The permitting authority has

received a complete application for a

permit, permit revision, or permit

renewal, except that a complete

application need not be received before

issuance of a general permit under

§ 71.6(l);

(ii) The permitting authority has

complied with the applicable

requirements for public participation

under this section or § 71.11, if

applicable;

(iii) The permitting authority has

complied with the requirements for

notifying and responding to affected

States under § 71.8(a);

(iv) Except as provided in paragraph

(a)(6) of this section, the conditions of

the permit provide for compliance with

all applicable requirements and the

requirements of this part; and

(v) In the case of a program delegated

pursuant to § 71.10, except for revisions

qualifying for de minimis permit

revision procedures under paragraph (f)

of this section or for administrative

amendment procedures under

paragraphs (e)(1)(i) through (iv) of this

section, the Administrator has received

a copy of the proposed permit and any

notice required under § 71.10(d) and has

not objected to the issuance of the

permit under § 71.10(g) within the time

period specified therein.

(2) Except as provided under the

initial transition plan provided 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 revision or renewal) within 18

months after receiving a complete

application. Notwithstanding the

preceding sentence, the permitting

authority shall take final action within

12 months after receipt of a complete

application containing an early

reduction demonstration under section

112(i)(5) of the Act and regulations

promulgated thereunder, and within the

time period specified under paragraph

(g)(5)(v) of this section for a minor

permit revision. Final action may be

delayed where an applicant fails to

provide additional information in a

timely manner as requested by the

permitting authority under § 71.5(c) .

(3) The permitting authority shall

promptly provide notice to the

applicant of whether the application is

complete. Unless the permitting

authority requests additional

information or otherwise notifies the

applicant of incompleteness within 60

days of receipt of an application, the

application shall be deemed complete.

Notwithstanding the above, for revisions

that qualify for and are processed

through the procedures of paragraph (e),

(f), or (g) of this section, the permitting

authority need not undertake a

completeness determination before

commencing revision procedures.

(4) The permitting authority shall

provide a statement that sets forth the

legal and factual basis for the draft

permit conditions (including references

to the applicable statutory or regulatory

provisions). The permitting authority

shall send this statement to any person

who requests it, and to EPA, in the case

of a program delegated pursuant to

§ 71.10.

(5) The submittal of a complete

application shall not affect the

requirement that any source have a

preconstruction permit under title I of

the Act.

(6) Any new applicable requirement

approved or promulgated by EPA that

becomes applicable to a source prior to

issuance of a draft permit (whether

during issuance or renewal) shall be

included in the draft permit. If any new

applicable requirement becomes

applicable after issuance of a draft

permit, and the requirement is not

reflected in the draft permit, the permit

may be issued without incorporating the

new applicable requirement, provided

that the permitting authority institutes

proceedings no later than the date of

permit issuance to reopen the permit

consistent with paragraph (i) of this

section to incorporate the new

applicable requirement and that the

permit contains a statement that it is

being reopened for this purpose.

(b) Requirement to apply for a permit.

Except as provided in this paragraph

and paragraphs (e), (f), and (g) of this

section, no part 70 or part 71 source

may operate after the time that it is

required to submit a timely and

complete application under an

approved permit program or this part,

except in compliance with a permit

issued under a part 70 program or this

part. If a part 70 or part 71 source

submits a timely and complete

application for permit issuance

(including for renewal), the source’s

failure to have a part 71 permit is not

a violation of this part until the

permitting authority takes final action

on the permit application, except as

noted in this section. This protection

shall cease to apply if, subsequent to the

completeness determination made

pursuant to paragraph (a)(3) of this

section, and as required by § 71.5(c), the

applicant fails to submit by the deadline

specified in writing by the permitting

authority any additional information

identified as being needed to process

the application.

(c) Permit renewal and expiration.

(1) Permits being renewed are subject

to the same procedural requirements

that apply to initial permit issuance,

including those for public participation,

affected State review, and EPA review,

in the case of a program delegated

pursuant to § 71.10.

(2) Permit expiration terminates the

source’s right to operate unless a timely

and complete renewal application has

been submitted consistent with

paragraph (b) of this section and

§§ 71.5(b) and 71.5(c).

(3) If a timely and complete

application for a permit renewal is

submitted by the permittee consistent

with §§ 71.5(b) and 71.5(c), but the

permitting authority has failed to issue

or deny the renewal permit before the

end of the term of the previous part 70

or part 71 permit, then all the terms and

conditions of the permit, including any

permit shield, shall remain in effect

until the permitting authority issues or

denies the renewal permit. In the case

of a program delegated pursuant to

§ 71.10, EPA may invoke its authority

under section 505(e) of the Act to

terminate or revoke and reissue the

permit.

(d) Permit revisions. Changes

requiring revision of a part 70 or part 71

permit are those that could not be

operated without violating an existing

permit term or rendering the source

subject to an applicable requirement to

which the source has not been

previously subject. A permit revision for

purposes of the acid rain portion of the

permit shall be governed by 40 CFR part

72.

(e) Administrative permit

amendments.

(1) An ‘‘administrative permit

amendment’’ is a permit revision that:

(i) Corrects typographical errors;

(ii) Identifies a change in the name,

address, or phone number of any person

identified in the permit, or provides a

similar minor administrative change;

(iii) Requires more frequent testing,

monitoring, recordkeeping, or reporting;

(iv) Allows for a change in ownership

or operational control of a source where
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20841

the permitting authority determines that

no other change in the permit is

necessary, provided that a written

agreement containing a specific date for

transfer of permit responsibility,

coverage, and liability between the

current and new permittee has been

submitted to the permitting authority;

(v) In the case of a program delegated

pursuant to § 71.10, incorporates the

requirements of a minor new source

review (NSR) or major NSR

preconstruction permit or decision or a

determination under section 112(g) of

the Act, provided that such permit or

determination was issued in accordance

with the procedural requirements of

paragraph (e)(4) of this section and

contains compliance requirements

substantially equivalent to those

required under § 71.6.

(vi) Notwithstanding the provisions of

paragraph (e)(1)(v) of this section,

incorporates a standard promulgated

after permit issuance pursuant to

section 112 of the Act.

(2) Administrative permit

amendments for purposes of the acid

rain portion of the permit shall be

governed by 40 CFR part 72.

(3) Administrative permit amendment

procedures for changes meeting the

criteria under § 71.7(e)(1)(i) through (iv).

Changes meeting the criteria set forth in

paragraphs (e)(1)(i) through (iv) of this

section may be made to a permit using

the following procedures:

(i) The source shall submit to the

permitting authority an application

containing a proposed addendum to the

source’s part 70 or part 71 permit. The

application shall demonstrate how the

proposed change meets one of the

criteria for administrative amendments

set forth in paragraphs (e)(1)(i) through

(iv) of this section, and include

certification by the responsible official

consistent with § 71.5(i) that the change

is eligible for administrative amendment

procedures. The addendum shall:

(A) Identify the terms of the existing

part 70 or part 71 permit that it proposes

to change;

(B) Propose new permit terms

consistent with the provisions of this

part applicable to the change;

(C) Designate the addendum as having

been processed under the procedures of

this paragraph (e)(3); and

(D) Specify that the addendum will be

effective 60 days from the date of

permitting authority receipt unless the

permitting authority disapproves the

change within such period.

(ii) The permitting authority may

allow the source to implement the

requested change immediately upon

making all required submittals,

including the proposed addendum.

(iii) The proposed addendum will

become effective 60 days after the

permitting authority receives the

submittal, provided the permitting

authority has not disapproved the

request in writing before the end of the

60-day period. The permitting authority

shall record the change by attaching a

copy of the addendum to the existing

part 70 or part 71 permit and, in the

case of a program delegated pursuant to

§ 71.10, shall provide the Administrator

with a copy of the addendum.

(iv) If the permitting authority

disapproves the change, it shall notify

the source of its reasons for

disapproving the change in a timely

manner. Upon receiving such notice, the

source shall comply with the terms of

the permit that it had proposed to

change, and thereafter the proposed

addendum shall not take effect. The

permitting authority may approve a

permit addendum for an administrative

permit amendment that varies from the

source’s application without rendering

the source liable for violating its

existing permit if the permitting

authority’s revisions are not necessary

to make the request eligible for

administrative amendment procedures

and do not change the applicant’s

proposed determination of which

applicable requirements of the Act

apply to the source as a result of the

requested change and if the source

demonstrates to the satisfaction of the

permitting authority its compliance

with the applicable requirement to

which it is subject as a result of the

change. However, the source would

remain liable for any violations of the

requirements which are applicable as a

result of the change and the source’s

proposed permit revision.

(v) The process in paragraph (e)(3) of

this section may also be used for

changes initiated by the permitting

authority that meet the criteria under

paragraphs (e)(1)(i), (ii), and (iv) of this

section. For such changes, the

permitting authority shall notify the

source of the proposed change and its

effective date, and shall attach a copy of

the change to the existing permit. On

the effective date of the proposed

change, the source shall comply with

the provisions of the proposed change.

(vi) The permit shield under § 71.6(n)

may not extend to administrative

amendments processed under paragraph

(e)(3) of this section.

(4) Administrative amendment

procedures for changes meeting the

criteria under § 71.7(e)(1)(v). In the case

of a program delegated pursuant to

§ 71.10, a change meeting the criteria of

paragraph (e)(1)(v) of this section may

be made to a permit using the

procedures in the following paragraphs

(e)(4) (i) through (iv) of this section.

(i) An applicant shall submit prior to

construction (including modification), a

permit application to the permitting

authority meeting the requirements for

applications of minor NSR, major NSR,

determinations under section 112(g) of

the Act, and paragraph (e)(3)(i) of this

section. The application must:

(A) Specify draft permit terms

governing construction of any proposed

new or modified emissions unit or

combination thereof, including all

applicable requirements;

(B) Inform the permitting authority

that the source is requesting to revise

the part 70 or part 71 permit using the

process under this paragraph (e)(4);

(C) Include a proposed addendum to

the part 70 or part 71 permit that

identifies the terms of the existing part

70 or part 71 permit that will change

and the draft terms and conditions

which will govern operation of the new

or modified unit consistent with part 71

(including compliance requirements

consistent with § 71.6 ) and any notice

requirements contained in paragraph

(e)(4)(ii) of this section, and that

incorporates relevant terms and

conditions from the proposed minor

NSR or major NSR or action under

section 112(g) of the Act; and

(D) Include an affidavit signed by a

responsible official stating that the

source accepts all liability of making the

requested change prior to final

permitting authority action to revise the

source’s permit.

(ii) For any minor NSR or major NSR

or action under section 112(g) of the Act

and part 71 permit addendum proposed

for approval under paragraph (e)(4) of

this section, the permitting authority

shall:

(A) Provide a comment period for the

public and affected States prior to

construction of the change of at least 30

days or, in the case of minor NSR, as

many days as required by the applicable

implementation plan approved as of

November 15, 1993, but not less than 15

days. Where a minor NSR action

includes a netting transaction involving

either a single emissions increase above

applicable title I modification

significance levels or a sum of increases

above applicable major source

thresholds, a public comment period of

at least 30 days must be provided for a

change to qualify for processing under

this paragraph (e)(4);

(B) Provide notice and a copy of the

application filed pursuant to paragraph

(e)(4)(i) of this section to EPA by the

beginning of the public comment

period;
20842 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

(C) Issue a minor NSR or major NSR

permit or determination or issue a

determination under section 112(g) of

the Act and an addendum to the part 70

or part 71 permit for the operation of the

change if it determines the requirements

of the applicable minor NSR, major

NSR, or review program under section

112(g) of the Act and part 71 have been

met; and

(D) Provide an opportunity for EPA

objection consistent with the provisions

of § 71.10(g), starting either upon receipt

of the notice described under paragraph

(e)(4)(ii)(D)(1) or (2) of this section as

applicable or from the date the

permitting authority made its final

minor NSR, major NSR, or

determination under section 112(g) of

the Act, whichever is later.

(1) For changes approved by the

permitting authority under major NSR

or review under section 112(g) of the

Act, the source shall provide a notice to

EPA and the permitting authority which

must be postmarked at least 21 days

before the anticipated date of initial

startup of the new or modified source.

For such changes, the source may

commence operation at the end of the

21-day period unless EPA objects in

writing to the proposed change within

the 21-day period. Upon notification of

such objection, the source may not

operate such a change and must comply

with the terms and conditions of the

permit that it sought to change.

(2) For changes approved by the

permitting authority under minor NSR,

the source shall notify EPA and the

permitting authority of the anticipated

date for startup of the change. The

source may commence operation of

such a change upon postmark of such

notice.

(iii) The proposed part 71 permit

addendum may become effective 45

days after EPA receives notice under

paragraph (e)(4)(ii)(D) of this section or

45 days from the date the permitting

authority makes its final

preconstruction determination,

whichever is later, provided that by the

end of such period EPA has not objected

to the change.

(iv) If EPA objects to the change, EPA

shall notify the permitting authority and

the source of its reasons for objecting to

the change. Upon receiving such notice,

the source shall comply with the terms

of the permit that it had proposed to

change, and thereafter the proposed

addendum shall not take effect. If,

subsequent to source implementation of

the requested change, EPA objects to the

change, the source shall be liable for

having operated in violation of its

existing permit from the time it

implemented the change.

Notwithstanding the preceding

sentence, the permitting authority may

revise a proposed addendum making an

administrative permit amendment in

response to an EPA objection without

rendering the source liable for violating

its existing permit if the permitting

authority’s revisions are not necessary

to make the change eligible for

administrative amendment procedures

and do not change the applicant’s

proposed determination of which

applicable requirements apply to the

source as a result of the requested

change and if the source demonstrates

to the satisfaction of the permitting

authority its compliance with the

applicable requirement to which it is

subject as a result of the change and the

source’s proposed permit revision.

However, the source would remain

liable for any violations of the

requirements which are applicable as a

result of the change and the source’s

proposed permit revision.

(v) The permitting authority may

provide a permit shield consistent with

the provisions of § 71.6(n) .

(5) Administrative permit amendment

procedures for changes meeting the

criteria under § 71.7(e)(1)(vi). Changes

meeting the criteria set forth in

paragraph (e)(1)(vi) of this section may

be made to a permit using the following

procedures:

(i) After receipt of the initial

notification required under the standard

under section 112 of the Act, the

permitting authority shall prepare a

proposed addendum to the source’s part

70 or part 71 permit. The addendum

shall contain the following:

(A) A statement that the standard

under section 112 of the Act is an

applicable requirement for the

permitted source;

(B) A schedule of compliance,

consistent with § 71.5;

(C) A requirement to submit any

implementation plan or report required

under the standard;

(D) A requirement to apply for a

minor permit revision by the deadline

for the compliance statement, unless the

source is exempted from this

requirement by the rulemaking

promulgating the applicable standard

under section 112 of the Act. If the

source is utilizing an alternative

requiring case-by-case approval, such as

emissions averaging, the source shall

apply for a significant permit revision in

lieu of the minor permit revision

required in the preceding sentence. If

the compliance statement deadline is

within 6 months of the end of the

permit term, the source may incorporate

its application for the revisions into its

application for permit renewal, in lieu

of applying for revisions by the

compliance statement deadline;

(E) Any other provisions required to

be incorporated into the permit by the

applicable standard under section 112

of the Act.

(ii) The permitting authority shall

make available for public review and

comment for at least 30 days a list of

sources whose permits are reopened

under this paragraph (e)(5). Notice of

the availability of the list shall be given

by such time as to assure that any

additional administrative amendments

for sources subject to the standard and

not on the list take effect within 18

months after publication of the standard

under section 112 of the Act. If after

considering public comment, the

permitting authority determines that

permits for other sources must be

reopened to incorporate standards

under section 112(g) of the Act, it shall

notify such sources of its intent to do so

at least 30 days before reopening the

permit, and may use the provisions of

this paragraph (e)(5).

(iii) The proposed addendum shall

become effective not later than 18

months after publication of the standard

under section 112 of the Act. The

permitting authority shall attach a copy

of the addendum to the existing part 70

or part 71 permit and shall, in the case

of a program delegated pursuant to

§ 71.10, provide the Administrator with

a copy.

(iv) The permitting authority shall, as

soon as practicable, place all

information required to be submitted by

the permit with respect to the standard

under section 112 of the Act in a docket

accessible to the public.

(v) The permit shield under § 71.6(n)

may not extend to administrative

amendments processed under paragraph

(e)(5) of this section.

(f) De minimis permit revisions.

(1) A de minimis permit revision may

be made by the permitting authority to

a part 70 or part 71 permit provided that

the permit contains a term or condition

authorizing the source to make use of de

minimis permit revision procedures for

qualifying changes at the applicable unit

and such term or condition was

established during permit issuance or

renewal, or under permit revision

procedures contained in § 71.11, and

provided the action taken meets the

criteria and procedures specified in

paragraph (f) of this section.

(2) Criteria. For the change to be

considered de minimis and eligible for

de minimis permit revision procedures,

the conditions in paragraph (f)(2)(i) of

this section and the applicable

conditions and limits in paragraphs

(f)(2) (ii) and (iii) of this section must be
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20843

met. The limits in paragraphs (f)(2) (ii)

and (iii) of this section are on a single

pollutant basis except where a

combination of hazardous air pollutants

is indicated.

(i) Conditions limiting de minimis

changes.

(A) The source must not be in

violation of the part 70 or part 71 permit

terms and conditions it seeks to change.

(B) In the case of existing units, the

need for a permit revision must result

from a physical or operational change.

[OPTION: ADD TO END OF

SENTENCE: unless the permit revision

solely involves monitoring or

recordkeeping requirements.]

(C) [OPTION: ADD TO BEGINNING

OF SENTENCE: Except for permit

revisions solely involving monitoring or

recordkeeping requirements,] The

change may not involve a permit term

or condition established to limit

emissions which is federally enforceable

only as a part 70 or part 71 permit term

or condition.

(D) De minimis emission threshold

levels cannot be met by offsetting

emission increases with emission

decreases at the same source.

[OPTION: ADD NEW PARAGRAPHS

(f)(2)(i) (E) and (F):

(E) The change may not involve a

change to monitoring or recordkeeping

requirements unless, prior to the

source’s submission of a de minimis

permit revision application, the

permitting authority affirmatively

determines that the monitoring or

recordkeeping change has been

demonstrated by the source:

(1) To not affect the capability of the

method to measure emission results as

precisely, accurately, and timely as is

provided by the existing monitoring or

recordkeeping method;

(2) To only affect a single source or

facility; and

(3) To not constitute a new or

alternative monitoring method or

represent a new operating level of the

method.

(F) The criteria for all demonstrations

required under paragraph (f)(2)(i)(E) of

this section shall include, in addition to

the requirements of paragraph (f)(3)(C)

of this section, an analysis conducted in

accordance with 40 CFR 64.4(b)(5) and

64.4(c) utilizing appendices A, B, C, and

D of 40 CFR part 64. [END OF OPTION]

(ii) Unit-based change limits. For a

change at any emissions unit to qualify

as a unit-based de minimis permit

revision, the total emissions of an

entirely new unit and the total

emissions at an existing unit after the

change (i.e., the sum of the existing

emissions before the change plus the

emissions increase that results from the

change) may not exceed:

[ALTERNATIVE 1 FOR paragraph

(f)(2)(ii)(A):]

(A) For criteria pollutants, the

following emissions over the life of the

permit:

(1) 4 tons of CO;

(2) 1 ton of NOX;

(3) 1.6 tons of SO2;

(4) 0.6 ton of PM–10;

(5) 1 ton of VOC.

[ALTERNATIVE 2 to paragraph

(f)(2)(ii)(A):]

(A) For criteria pollutants, 20 percent

of the applicable major source

threshold, or 5 tpy of VOC or NOX,

whichever is greater, but in no event

more than 15 tpy PM–10 or 0.6 tpy lead.

[ALTERNATIVE 3 to paragraph

(f)(2)(ii)(A):]

(A) For criteria pollutants, 5 tpy.

[ALTERNATIVE 4 to paragraph

(f)(2)(ii)(A):]

(A) For criteria pollutants, 30 percent

of the applicable major source threshold

or 5 tpy, whichever is greater. [END OF

ALTERNATIVES to paragraph

(f)(2)(ii)(A)]

[ALTERNATIVE 1 to paragraph

(f)(2)(ii)(B):]

(B) For HAP’s, 0 tpy.

[ALTERNATIVE 2 to paragraph

(f)(2)(ii)(B):]

(B) For HAP’s, 20 percent of the major

source thresholds established under

section 112 of the Act or 50 percent of

the de minimis levels established under

section 112(g) of the Act, whichever is

less.

[ALTERNATIVE 3 to paragraph

(f)(2)(ii)(B):]

(B) For HAP’s, 75 percent of de

minimis levels established under

section 112(g) of the Act. [END OF

ALTERNATIVES to paragraph

(f)(2)(ii)(B)]

(C) For other pollutants regulated only

under section 111 of the Act, the

significance levels in § 52.21(b)(23)(i).

(iii) Increment-based change limits. A

change at any emissions unit not

qualifying for a unit-based change may

still qualify as a de minimis permit

revision if the following criteria are met:

(A) Additional conditions:

(1) Any resulting emissions limit must

be expressed in the same form and units

of measure as the previous emissions

limit;

(2) Any associated recalibration of

continuous emissions monitors (CEM)

or operational parameters must be

undertaken in accordance with emission

rates-to-CEM or operational parameter

ratios established in the operating

permit program, in the source’s permit,

or through permit issuance procedures

providing at least as much permitting

authority, EPA (in the case of a program

delegated pursuant to § 71.10 ), and

affected State review and public

participation as minor permit revision

procedures; [OPTION: DELETE

PREVIOUS PARAGRAPH

(f)(2)(iii)(A)(2).]

(B) Size restrictions on individual

change. No emissions increase at any

unit may exceed:

[ALTERNATIVE 1 to paragraph

(f)(2)(iii)(B)(1):]

(1) For criteria pollutants, the

following emissions over the life of the

permit:

(i) 4 tons of CO;

(ii) 1 ton of NOX;

(iii) 1.6 tons of SO2;

(iv) 0.6 ton of PM–10;

(v) 1 ton of VOC.

[ALTERNATIVE 2 to paragraph

(f)(2)(iii)(B)(1):]

(1) For criteria pollutants, 20 percent

of the applicable major source

threshold, 10 percent of the limit

applicable to the unit undergoing the

change, or 15 tpy VOC or NOX,

whichever is less but in no event less

than [2–5] tpy VOC or NOX or greater

than 15 tpy PM–10 or 0.6 tpy lead.

[ALTERNATIVE 3 to paragraph

(f)(2)(iii)(B)(1):]

(1) For criteria pollutants, 30 percent

of applicable major source thresholds,

or 15 percent of the limit applicable to

the unit undergoing the change,

whichever is less, but in no event less

than 5 tpy for VOC or NOX. [END OF

ALTERNATIVES FOR paragraph

(f)(2)(iii)(B)(1)]

[ALTERNATIVE 1 to paragraph

(f)(2)(iii)(B)(2):]

(2) For HAP’s, 0 tpy.

[ALTERNATIVE 2 to paragraph

(f)(2)(iii)(B)(2):]

(2) For HAP’s, 20 percent of the major

source thresholds established under

section 112 of the Act, 50 percent of the

de minimis levels set pursuant to

section 112(g) of the Act, or 10 percent

of the limit applicable to the unit

undergoing change, whichever is less.

[ALTERNATIVE 3 to paragraph

(f)(2)(iii)(B)(2):]

(2) For HAP’s, 75 percent of de

minimis levels established under

section 112(g) of the Act. [END OF

ALTERNATIVES FOR paragraph

(f)(2)(iii)(B)(2)]

(3) For other pollutants regulated only

under section 111 of the Act, the

significance levels in § 52.21(b)(23)(i) of

this chapter.

(3) De minimis permit revision

procedures.

(i) Application. A source may submit

an application to the permitting

authority requesting the use of de

minimis permit revision procedures
20844 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

provided that the permit contains a term

or condition that authorizes the source

to make use of the de minimis permit

revision procedures for qualifying

changes, the application meets the

requirements of § 71.5(f), and the permit

application includes the following:

(A) A description of the change, the

emissions resulting from the change,

and any new applicable requirements

that will apply if the change occurs;

(B) An addendum containing the

terms and conditions of the source’s

suggested draft permit revision;

(C) A demonstration that the proposed

change meets the criteria for a de

minimis permit revision; and

(D) Certification by a responsible

official consistent with § 71.5(i) that:

(1) The source is in compliance with

any permit terms or conditions it seeks

to revise;

(2) The proposed revision meets the

criteria for use of de minimis permit

revision procedures; and

(3) The source accepts all liability of

making the requested change prior to

final permitting authority action to

revise the source’s permit.

[OPTION: ADD NEW PARAGRAPH:

(E) A summary of any required

demonstration performed in accordance

with paragraphs (f)(2)(i)(E) and (F) of

this section, and verification of such

demonstration’s affirmative approval by

the permitting authority.]

(ii) The permitting authority may

allow the source to implement the

requested change 7 days after the

permitting authority’s receipt of the

source’s de minimis permit revision

application. At its discretion, the

permitting authority may grant a request

by the source to implement the change

after less than 7 days.

(iii) Public notification. Public notice

shall be provided by the source of de

minimis permit revision applications

received by the permitting authority on

a monthly, batched basis. At a

minimum, the notice shall include: the

name and address of the source where

the proposed change would occur, a

description of the change, the effective

date of the permit revision, the

emissions resulting from the change,

and any new applicable requirements

that will apply if the change occurs;

reference to the pertinent administrative

record/public docket; and the name,

address and phone number of a person

from whom interested persons may

obtain additional information, including

the permit application and supporting

documentation as described in

paragraph (f)(3)(i) of this section.

[OPTION: ADD TO END OF

PARAGRAPH: In addition, for permit

revisions involving changes to

monitoring or recordkeeping

requirements, the permitting authority

shall also submit to the publicly

available docket the complete

demonstration required by paragraphs

(f)(2)(i) (E) and (F) of this section, a

summary of the demonstration, and an

affirmative statement of the

demonstration’s adequacy.]

(iv) Permit amendment. The permit is

revised by attaching the proposed

addendum to the permit with the

addendum specifying when the permit

revision takes effect consistent with the

following provisions.

(A) Where the preconstruction

permitting agency affirmatively

approved the change pursuant to a

preconstruction review process that

included at least a 21-day public

comment period and the

preconstruction permitting agency

authorized the change to be made under

the de minimis permit revision process,

the addendum shall take effect upon

submission to the part 71 permitting

authority of a complete de minimis

permit revision application.

(B) Where the preconstruction

permitting agency did not affirmatively

approve the change pursuant to a

preconstruction review that provided

for at least a 21-day public comment

period, the addendum shall take effect

[30–90] days after the date public notice

is given under paragraph (f)(3)(iii) of

this section if the part 71 permitting

authority does not disapprove the

request within that time period. The

part 71 permitting authority shall retain

the authority to disapprove such a

change made through the de minimis

permit revision process for a period of

[30–90] days following the date public

notice is given under paragraph

(f)(3)(iii) of this section.

(v) EPA and affected State

notification.

(A) In the case of a program delegated

pursuant to § 71.10, the permitting

authority shall send a copy of the

addendum to the permit to EPA within

7 days of the date the addendum takes

effect.

(B) In all cases, the permitting

authority shall send a copy of the

addendum to any affected State within

7 days of the date the addendum takes

effect.

(vi) Public request for disapproval.

(A) Within [15–45] days of the date

public notification is given, any person

may request that the permitting

authority disapprove the change if the

permitting authority retained authority

to disapprove the de minimis permit

revision as described under paragraph

(f)(3)(iv)(B) of this section.

(B) Where the permitting authority

was not required to retain authority to

disapprove the de minimis permit

revision, the public may petition the

permitting authority to revoke the

permit revision allowing the change.

(4) Source liability. If, after a source

makes the requested change, the

permitting authority disapproves the

change or EPA objects to the change (in

the case of a program delegated

pursuant to § 71.10), the source shall be

liable for having operated in violation of

its existing permit from the time at

which the source made the change.

Notwithstanding the preceding

sentence, the permitting authority may

issue a permit revision that varies from

the source’s proposed addendum

without rendering the source liable for

violating its existing permit if the

proposed addendum includes

enforcement terms sufficient to support

an enforcement action and the

permitting authority’s revisions are not

necessary to make the change eligible

for de minimis permit revision

procedures and do not change the

applicant’s determination of which

requirements of the Act apply to the

source as a result of the requested

change. The source would remain liable

for any violations of the requirements

which are applicable as a result of the

change and the source’s proposed

permit revision.

(5) The permit shield under § 71.6(n)

may not extend to de minimis permit

revisions.

(g) Minor permit revision procedures.

(1) Criteria.

(i) Minor permit revision procedures

may be used only for those permit

revisions that:

(A) Do not affect permit terms or

conditions that the source is violating;

(B) Do not involve changes to existing

monitoring, reporting, or recordkeeping

requirements in the permit, unless such

changes are necessary to implement

other changes that qualify for minor

permit revision procedures [OPTION:

REPLACE PARAGRAPH (g)(1)(i)(B)

WITH THE FOLLOWING:

(B) Involve changes to monitoring or

recordkeeping requirements that are:

(1) Changes in the enforceable

operating level of the method that, prior

to the source’s submission of a minor

permit revision application, the

permitting authority has affirmatively

determined the source has demonstrated

to be correlated to the source’s existing

or proposed compliance emissions rate,

but such changes may not involve a

switch to a new or alternative

monitoring or recordkeeping operating

parameter;
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20845

(2) Changes to a monitoring or

recordkeeping method that affect the

measurement sensitivity of the method

and representativeness of the data (e.g.,

precision, accuracy, measurement

location, or averaging time) such that

there may be a measurable effect in

relation to the relevant source

compliance emissions rate; changes that

affect the scope and intent of the

existing monitoring method (e.g.,

modified sample conditioning system,

upgraded detector, upgraded data

management system); or changes that

may be generally applicable to similar

monitoring methods in the same or

other source categories (e.g., equipment

modification for interference

avoidance). Such changes may not

involve a switch to new or alternative

monitoring methods. Prior to the

source’s submission of a minor permit

revision application, the permitting

authority shall have affirmatively

determined that the monitoring or

recordkeeping change has been

demonstrated by the source to have a

known relationship and ability to

determine compliance with the

applicable source compliance emissions

rate; or

(3) In the case of a program delegated

pursuant to § 71.10, changes to

monitoring or recordkeeping methods

that have been approved pursuant to

major or minor NSR and that are

demonstrated therein to have a known

relationship and ability to determine

compliance with the applicable source

compliance emissions rate. The

application for the minor permit

revision must include supporting

documentation from the major or minor

NSR permit approval, information

regarding the demonstration and

approval of the requested monitoring or

recordkeeping method, and information

in accordance with § 71.7(g)(2) as

related to the monitoring change. END

OF OPTION];

(C) Do not involve or depend on

netting transactions undertaken to avoid

being subject to preconstruction review

under part C or D of title I of the Act

unless such emissions reductions:

(1) Have been approved pursuant to a

minor NSR process for which a 30-day

public comment period was provided;

or

(2) Do not involve any single

emissions increase that exceeds the

applicable threshold for being a major

modification under part C or D of title

I of the Act, and the sum of all the

contemporaneous increases does not

exceed the applicable threshold for

determining whether a source is major;

(D) Do not involve offsets or

modifications under section 112(g) of

the Act, unless the change has been

approved pursuant to a review process

under section 112(g) of the Act;

(E) Are not modifications subject to

part C or D of title I of the Act, unless

the change has been approved pursuant

to major NSR and would incorporate all

applicable requirements determined

therein into the part 70 or part 71

permit;

(F) [OPTION: ADD TO BEGINNING

OF SENTENCE: Except for permit

revisions solely involving monitoring or

recordkeeping requirements,] Do not

seek to establish or change a permit

term or condition established to limit

emissions which is federally enforceable

only as a part 70 or part 71 permit term

or condition. Such terms and conditions

include:

(1) A federally-enforceable emissions

cap assumed in the part 70 or part 71

permit to avoid classification as a

modification under any provision of

title I of the Act;

(2) An alternative emission limit

established under the provisions of

§ 71.6(a)(1)(iii) equivalent to a

requirement contained in an applicable

implementation plan;

(3) An alternative emissions limit

established in the part 70 or part 71

permit pursuant to regulations

promulgated under section 112(i)(5) of

the Act;

(4) An emissions limit established in

the part 70 or part 71 permit pursuant

to regulations promulgated under

section 112(j) of the Act; and

(5) Any other term or condition for

which there is no corresponding

underlying applicable requirement and

the establishment of which allows the

source to avoid an applicable

requirement to which the source would

otherwise be subject.

(ii) Notwithstanding paragraph

(g)(1)(i) of this section, minor permit

revision procedures may be used for

permit revisions involving the use of

economic incentives, marketable

permits, emissions trading, and other

similar approaches, to the extent that

such minor permit revision procedures

are explicitly provided for in an

applicable implementation plan or in

applicable requirements promulgated by

EPA.

[OPTION: ADD NEW PARAGRAPH:

(iii) Any demonstration required by

paragraph (g)(1)(i)(B) of this section

shall include an analysis conducted in

accordance with 40 CFR 64.4(b)(5) and

64.4(c) utilizing appendices A, B, C, and

D of 40 CFR part 64.]

(2) Application. An application

requesting the use of minor permit

revision procedures shall meet the

requirements of § 71.5(f) and shall

include the following:

(i) A description of the change, the

emissions resulting from the change,

and any new applicable requirements

that will apply if the change occurs;

(ii) An addendum containing the

terms and conditions of the source’s

suggested draft permit revision;

(iii) A demonstration that the

proposed change is eligible to be

processed as a minor permit revision;

(iv) Certification by a responsible

official, consistent with § 71.5(i), that:

(A) The proposed change meets the

criteria for use of minor permit revision

procedures;

(B) The source is in compliance with

the permit terms or conditions it seeks

to revise;

(C) Public notice of the proposed

revision has been provided pursuant to

paragraph (g)(3) of this section; and

(D) Notice to the Administrator (in the

case of a program delegated pursuant to

§ 71.10), and affected States of the

proposed revision has been provided

pursuant to paragraph (g)(4) of this

section; and

(v) An affidavit signed by a

responsible official stating that the

source accepts all legal risks of making

the requested change prior to final

permitting authority action to revise the

source’s permit.

[OPTION: ADD NEW PARAGRAPH:

(vi) For a change involving changes to

monitoring or recordkeeping

requirements, a summary of any

demonstration required by paragraph

(g)(1)(i)(B) of this section and performed

in accordance with paragraph (g)(1)(iii)

of this section and verification of its

approval by the permitting authority. If

in approving the demonstration the

permitting authority determines that

subsequent verification testing of the

change is necessary, the permitting

authority may establish a compliance

schedule for performing verification

testing to further demonstrate,

consistent with paragraph (g)(1)(iii) of

this section, the adequacy of the change.

Such compliance schedule, after

approval by the permitting authority,

shall be attached to the addendum

described in paragraph (g)(2)(ii) of this

section and be processed as a permit

term and shall not allow the source to

begin verification testing in advance of

the time when the source would be

allowed to implement the minor permit

revision requested change. The

approved compliance schedule shall

include a commitment by the source to

provide the results of the verification

testing to the permitting authority

within 90 days of submittal of the minor

permit revision application. Upon
20846 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

receipt of the verification testing results,

the permitting authority shall determine

whether the results demonstrate the

adequacy of the change consistent with

paragraph (g)(1)(iii) of this section. The

permitting authority shall promptly

notify the source in writing of its

determination, and place a copy of such

notice in the public docket. The permit

shield under § 71.6(n) may extend to

minor permit revisions involving

monitoring and recordkeeping changes

only after any required further

verification testing of the change has

been completed.]

(3) Public notification.

(i) Immediately upon filing an

application for a minor permit revision,

the source shall provide notice to the

public of the requested minor permit

revision by:

(A) Publication of a notice in a

newspaper of general circulation in the

area where the source is located or in a

State publication designed to give the

general public notice; and

(B) Sending a letter to persons on a

mailing list developed by the permitting

authority, including those who

previously participated in any public

comment process provided for the

source’s permit and those who request

to be placed on a list to receive

notification of permit issuance, revision,

reopening, or renewal requests.

(ii) In addition to the elements

required under § 71.11(d)(4), the public

notice shall describe the requested

change and state that if no germane and

non-frivolous objection to the requested

change is received by the permitting

authority within 21 days of publication

of the notice, the source may implement

the change without the permitting

authority providing further opportunity

for public participation. For purposes of

this paragraph (g)(3)(ii), a germane

objection is one that objects to the use

of minor permit revision procedures for

the requested change on the grounds

that the source has failed to comply

with the procedural and notification

requirements of paragraphs (g)(3) and

(4) of this section or that the requested

change is ineligible for the use of minor

permit revision procedures under

paragraph (g)(1)(i) of this section. For

purposes of this paragraph (g)(3)(ii), a

non-frivolous objection must specify the

basis for its objection and present

factual or other relevant information in

support of its objection.

(iii) The permitting authority shall

place a copy of the minor permit

revision request in a public docket.

[OPTION: ADD A NEW SENTENCE:

The permitting authority shall also

place in the docket any complete

demonstration required by

§ 71.7(g)(1)(i)(B), a summary of the

demonstration, the permitting

authority’s analysis of the

demonstration, and an affirmative

statement of the demonstration’s

adequacy.]

(4) EPA and affected State

notification.

(i) In the case of a program delegated

pursuant to § 71.10, immediately upon

filing an application for a minor permit

revision, the source shall notify the

Administrator of the requested permit

revision in the same manner and subject

to the same conditions required of

permitting authorities under § 71.10(d).

Such notification shall relieve the

permitting authority of the requirement

to provide notice to the Administrator of

the requested minor permit revision

under § 71.10(d), but shall not relieve

the permitting authority of the

requirement to promptly send to the

Administrator any notice under

§ 71.8(b).

(ii) In all cases, immediately upon

filing an application for a minor permit

revision, the source shall notify affected

States of the requested permit revision

in the same manner and subject to the

same conditions required of the

permitting authority under § 71.8(a).

Such notification shall relieve the

permitting authority of the requirement

to provide notice to affected States of

the requested minor permit revision

under § 71.8(a), but shall not relieve the

permitting authority of the requirement

to send any affected State any notice

under § 71.8(b).

(5) Timetable for issuance. Upon

receipt of an application for a minor

permit revision, the permitting authority

shall provide at least 21 days for public

comment on the requested change, and

shall keep a record of the commenters

and the issues raised during the public

comment period. Such records shall be

made available to the public. The minor

permit revision shall occur according to

the following procedures:

(i) If the permitting authority receives

no public objection to the requested

change within 21 days of publication of

the public notice, the source may

implement the requested change on the

22nd day after publication of the public

notice, provided that:

(A) The permitting authority has

neither denied the minor permit

revision nor determined that the

requested revision does not meet the

minor permit revision criteria and

should be reviewed under significant

permit revision procedures; and

(B) In the case of a program delegated

pursuant to § 71.10, the Administrator

has not objected to the proposed minor

permit revision.

(ii) If the permitting authority receives

a public objection to the requested

change within 21 days after publication

of the public notice, the permitting

authority must determine within 28

days of publication of the public notice

whether the objection is germane and

non-frivolous, and proceed according to

the following procedures:

(A) If the permitting authority within

28 days of public notification finds the

public objection to be either frivolous or

not germane, the permitting authority

may respond to the public objection in

the course of processing the minor

permit revision request as a minor

permit revision, and the source may

implement the requested change on the

29th day after publication of the public

notice or upon notification from the

permitting authority that the permitting

authority has determined the public

objection to be frivolous or not germane,

whichever is first, provided that:

(1) The permitting authority has

neither denied the minor permit

revision application nor determined that

the request fails to meet the minor

permit revision criteria and should be

reviewed under significant permit

revision procedures; and

(2) In the case of a program delegated

pursuant to § 71.10, the Administrator

has not objected to the proposed minor

permit revision.

(B) If the permitting authority fails to

determine within 28 days after

publication of the public notice of the

request for a minor permit revision

whether a public objection submitted

within 21 days of such notice is

germane and nonfrivolous, the source

may implement the requested change on

the 29th day after publication of the

public notice, provided that:

(1) The permitting authority has

neither denied the minor permit

revision application nor determined that

the request fails to meet the minor

permit revision criteria and should be

reviewed under significant permit

revision procedures; and

(2) In the case of a program delegated

pursuant to § 71.10, the Administrator

has not objected to the proposed minor

permit revision.

(C) If the permitting authority finds

the public objection to be germane and

nonfrivolous, the permitting authority

shall not issue a final minor permit

revision for the change, and shall either

deny the minor permit revision

application or determine that the

requested change does not meet the

minor permit revision criteria and

should be reviewed under significant

permit revision procedures. If the

permitting authority continues to

process the requested change under
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20847

significant permit revision procedures,

public notice of the proposed change

must be provided in the manner

required for significant permit revisions

under § 71.11. Such notice shall provide

at least 30 days for public comment on

the requested change, shall identify the

time and place of any hearing that may

be held, and shall include a statement

of procedures to request a hearing if a

hearing has not already been scheduled.

For purposes of this paragraph, such a

hearing may be held as soon as 14 days

after publication of a notice that the

requested change is being processed as

a significant permit revision. The source

shall not implement the requested

change unless and until the permitting

authority approves it as a significant

permit revision.

(iii) Any person who filed a public

objection pursuant to this paragraph

which the permitting authority within

28 days of public notification does not

determine to be germane and

nonfrivolous may bring suit in Federal

court to compel action by the permitting

authority and, in accordance with

applicable standards for obtaining such

relief under Federal law, seek an

injunction in Federal court prohibiting

the source from implementing the

requested change.

(iv) In the case of a program delegated

pursuant to § 71.10, where the minor

permit revision has not been denied or

required to be reviewed under

significant permit revision procedures,

the permitting authority may issue a

final minor permit revision after EPA’s

45-day review period has elapsed

provided the Administrator has not

objected to the requested change, or

after EPA has notified the permitting

authority after the close of the public

comment period that EPA will not

object to issuance of the minor permit

revision, whichever is first, provided

that the final minor permit revision does

not differ from the draft permit except

to the extent any changes to the draft

permit qualify for administrative permit

amendment procedures under

paragraph (e) of this section.

(v) Within 60 days after the permitting

authority’s receipt of an application for

a minor permit revision, or 15 days after

the expiration of EPA’s 45-day review

period (in the case of a program

delegated pursuant to § 71.10),

whichever is later, the permitting

authority shall:

(A) Issue the minor permit revision as

proposed;

(B) Deny the minor permit revision

application;

(C) Determine that the requested

revision does not meet the minor permit

revision criteria and should be reviewed

under significant permit revision

procedures; or

(D) Revise the draft minor permit

revision and, in the case of a program

delegated pursuant to § 71.10, if such

revision includes any changes that do

not qualify for processing as

administrative permit amendments

under paragraph (e) of this section,

transmit to the Administrator the new

proposed permit revision as required by

§ 71.10(d).

(vi) Any person who objected to a

minor permit revision request during

the public comment period shall be

notified by the permitting authority

upon final approval of the request. The

permitting authority shall also place a

copy of its final approval decision in the

public docket in which it places minor

permit revision requests when received

or provide a substantially equivalent

means of public access to its final

decision.

(6) Reopening of the public comment

period. If any data, information, or

arguments submitted during the public

comment period appear to raise

substantial new questions concerning a

permit, the permitting authority may

reopen or extend the comment period to

give interested persons an opportunity

to comment on the information or

arguments submitted. Comments filed

during the reopened comment period

shall be limited to the substantial new

questions that caused its reopening. The

public notice shall define the scope of

the reopening.

(7) Issuance and effective date of

permit.

(i) After the close of the public

comment period on a draft permit, the

permitting authority shall issue a final

permit decision. The permitting

authority shall notify the applicant and

each person who has submitted written

comments or requested notice of the

final permit decision. This notice shall

include reference to the procedures for

appealing a decision on a permit.

(ii) A final permit decision shall

become effective immediately upon

issuance of the decision unless a later

effective date is specified in the

decision.

(8) Source’s ability to make change.

The source may make the change

proposed in its minor permit revision

application in accordance with

paragraph (g)(5) of this section. After the

source makes the change allowed by the

preceding sentence, and until the

permitting authority takes any of the

actions specified in paragraphs (g)(5)(v)

(A) through (D) of this section, the

source must comply with both the

applicable requirements governing the

change and the proposed permit terms

and conditions. During this time period,

the source need not comply with the

existing permit terms and conditions it

seeks to revise. However, if the source

fails to comply with its proposed permit

terms and conditions during this time

period, the existing permit terms and

conditions it seeks to revise may be

enforced against it.

(9) Source liability. If, after a source

makes the requested change but prior to

a permitting authority’s final action to

approve the change and revise the

permit, the Administrator objects to the

proposed minor permit revision (in the

case of a program delegated pursuant to

§ 71.10), or the permitting authority

either denies the minor permit revision

or determines that the requested

revision does not meet the minor permit

revision criteria and should be reviewed

under significant permit revision

procedures, the source shall be liable for

having operated in violation of its

existing permit from the time at which

it implemented the requested change.

Notwithstanding the preceding

sentence, the permitting authority may

issue a permit revision that varies from

the source’s application without

rendering the source liable for violating

its existing permit if the permitting

authority’s revisions are not necessary

to make the change eligible for minor

permit revision procedures and do not

change the applicant’s proposed

determination of which requirements of

the Act apply to the source as a result

of the requested change and if the

source demonstrates to the satisfaction

of the permitting authority its

compliance with the applicable

requirement to which it is subject as a

result of the change and the source’s

proposed permit revision. However, the

source would remain liable for any

violations of the requirements of the Act

applicable as a result of the change and

the source’s proposed permit revision.

[OPTION: ADD NEW SENTENCE: If,

after the permitting authority’s final

action to revise the permit, any

verification testing of the new operating

level or revised monitoring approach as

required by paragraph (g)(2)(vi) of this

section demonstrates that the new

operating level or revised monitoring

approach fails to demonstrate

compliance, the source then shall

comply with the monitoring and

recordkeeping permit terms and

conditions that applied to the source

before the minor permit revision, the

minor permit revision shall be null and

void and cease to have effect, and the

source shall be liable for operating in

violation of its permit from the time it

implemented the change.]
20848 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

(10) Permit shield. The permit shield

under § 71.6(n) may extend to minor

permit revisions, provided that the

permitting authority has taken final

action to issue the minor permit

revision as a permit revision.

(h) Significant permit revision

procedures.

(1) Criteria. Significant permit

revision procedures shall be used for

applications requesting permit revisions

that do not qualify as administrative

amendments, de minimis permit

revisions, or minor permit revisions. At

a minimum, every significant change in

existing monitoring permit terms or

conditions and every relaxation of

reporting or recordkeeping permit terms

or conditions shall be considered a

significant change. [OPTION: DELETE

PRECEDING SENTENCE] Nothing

herein shall be construed to preclude

the permittee from making changes

consistent with this part that would

render existing permit compliance terms

and conditions irrelevant.

(2) Significant permit revisions shall

meet all requirements, including those

for applications, public participation,

review by affected States, and in the

case of a program delegated pursuant to

§ 71.10, review by EPA, as they apply to

permit issuance and permit renewal.

The permitting authority shall

implement this review process to

complete review on the majority of

significant permit revisions within 9

months after receipt of a complete

application.

[OPTION: ADD NEW PARAGRAPH

(h)(3):

(3) Changes involving new or

alternative monitoring methods that

have not been approved pursuant to

major or minor NSR under criteria

equivalent to those contained in this

paragraph (h)(3) shall be processed as

significant permit revisions. Permitting

authorities may approve such changes

only where the new or alternative

monitoring or recordkeeping method is

demonstrated to have a known

relationship and ability to determine

compliance with the applicable

standard. Such demonstration shall

include an analysis conducted in

accordance with 40 CFR 64.4(b)(5) and

64.4(e) utilizing appendices A, B, C, and

D of 40 CFR part 64. The permitting

authority shall include the

demonstration and written evidence of

the permitting authority’s evaluation of

the demonstration in the proposed

permit it sends to EPA (in the case of

a program delegated pursuant to § 71.10)

for review as required by § 71.10.]

(i) Reopening for cause.

(1) Each issued permit shall include

provisions specifying the conditions

under which the permit will be

reopened prior to the expiration of the

permit. A permit shall be reopened and

revised under any of the following

circumstances:

(i) Additional applicable requirements

under the Act become applicable to a

major part 70 or part 71 source with a

remaining permit term of 3 or more

years. Such a reopening shall be

completed not later than 18 months

after promulgation of the applicable

requirement. No such reopening is

required if the effective date of the

requirement is later than the date on

which the permit is due to expire,

unless the original permit or any of its

terms and conditions have been

extended pursuant to § 71.6 or

paragraph (c)(3) of this section.

(ii) Additional requirements

(including excess emissions

requirements) become applicable to an

affected source under the acid rain

program. Upon approval by the

Administrator, excess emissions offset

plans shall be deemed to be

incorporated into the permit.

(iii) The permitting authority or EPA

(in the case of a program delegated

pursuant to § 71.10 ) 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. Notwithstanding the

preceding sentence, proceedings to

reopen for standards under section 112

of the Act may use the following

procedures:

(i) Where the standard under section

112 of the Act is published after permit

issuance, administrative amendment

procedures under paragraph (e)(5) of

this section may be used.

(ii) Where the standard under section

112 of the Act is published before

permit issuance and a compliance

statement required under the standard

under section 112 of the Act is due after

permit issuance, the source shall apply

for a minor permit revision by the

compliance statement deadline to

incorporate requirements necessary to

assure compliance with the standard,

unless the source is exempted from this

requirement under paragraph (i)(2)(iii)

of this section or under the rulemaking

promulgating the standard under

section 112 of the Act. If the source is

utilizing alternatives requiring case-bycase approval, such as emissions

averaging, or if required under the

rulemaking promulgating the standard

under section 112 of the Act, the source

shall apply for a significant permit

revision by the compliance statement

deadline, in lieu of the requirement in

the preceding sentence to apply for a

minor permit revision.

(iii) Sources subject to the following

standards under section 112 of the Act

published as of [DATE OF

PUBLICATION OF FINAL RULE] are

exempt from the requirements in

paragraph (i)(2)(ii) of this section to

apply for a minor permit revision:

NESHAP for Industrial Process Cooling

Towers, at 40 CFR part 63, subpart Q.

(3) Reopenings under paragraph (i)(1)

of this section shall not be initiated

before a notice of such intent is

provided to the part 70 or part 71 source

by the permitting authority at least 30

days in advance of the date that the

permit is to be reopened, except that the

permitting authority may provide a

shorter time period in the case of an

emergency. Where reopening for

standards under section 112 of the Act

requiring initial notification by the

source, and where the source has

provided such notification to the

permitting authority by the applicable

date, the permitting authority need not

provide the notice required by the

preceding sentence.

(j) Reopenings for cause by EPA for

delegated programs.

(1) In the case of a program delegated

pursuant to § 71.10 , if the

Administrator finds that cause exists to

terminate, revise, or revoke and reissue

a permit pursuant to paragraph (i) of

this section, the Administrator will

notify the permitting authority and the

permittee of such finding in writing.

(2) The permitting authority shall,

within 90 days after receipt of such

notification, forward to EPA a proposed

determination of termination, revision,

or revocation and reissuance, as

appropriate. The Administrator may

extend this 90-day period for an

additional 90 days if he or she finds that

a new or revised permit application is

necessary or that the permitting

authority must require the permittee to

submit additional information.

(3) The Administrator will review the

proposed determination from the

permitting authority within 90 days of

receipt.

(4) The permitting authority shall

have 90 days from receipt of an EPA

objection to resolve any objection that
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20849

EPA makes and to terminate, revise, or

revoke and reissue the permit in

accordance with the Administrator’s

objection.

(5) If the permitting authority fails to

submit a proposed determination

pursuant to paragraph (j)(2) of this

section or fails to resolve any objection

pursuant to paragraph (j)(4) of this

section, the Administrator will

terminate, revise, or revoke and reissue

the permit after taking the following

actions:

(i) Providing at least 30 days notice to

the permittee in writing of the reasons

for any such action. This notice may be

given during the procedures in

paragraphs (j)(1) through (j)(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(e)(4), 71.7(h),

71.7(i) or 71.11(d) and shall provide any

affected State a copy of the addendum

for a de minimis permit revision within

7 days of the date on which the

addendum takes effect.

(b) Notice of refusal to accept

recommendations. Prior to issuance of

the final permit, the permitting

authority shall notify any affected State

(and the Administrator, in the case of a

program delegated pursuant to § 71.10)

in writing of any refusal by the

permitting authority to accept all

recommendations for the proposed

permit that the affected State submitted

during the public or affected State

review period. The notice shall include

the permitting authority’s reasons for

not accepting any such

recommendation. The permitting

authority is not required to accept

recommendations that are not based on

applicable requirements or the

requirements of this part.

(c) Waiver of notice requirements. The

Administrator may waive the

requirements of paragraph (a) of this

section for any category of sources

(including any class, type, or size within

such category) other than major sources

by regulation for a category of sources

nationwide.

§ 71.9 Permit Fees.

(a) Fee requirement. The owners or

operators of part 71 sources shall pay

annual fees, or the equivalent over some

other period, that are sufficient to cover

the permit program costs, in accordance

with the procedures described in this

section.

(b) Permit program costs. These costs

include, but are not limited to, the costs

of the following activities as they relate

to a part 71 program:

(1) Preparing generally applicable

guidance regarding the permit program

or its implementation or enforcement;

(2) Reviewing and acting on any

application for a permit, permit

revision, or permit renewal, including

the development of an applicable

requirement as part of the processing of

a permit, or permit revision or renewal;

(3) Processing permit reopenings;

(4) General administrative costs of the

permit program, including transition

planning, interagency coordination,

contract management, training,

informational services and outreach

activities, assessing and collecting fees,

the tracking of permit applications,

compliance certifications, and related

data entry;

(5) Implementing and enforcing the

terms of any part 71 permit (not

including any court costs or other costs

associated with an enforcement action),

including adequate resources to

determine which sources are subject to

the program;

(6) Emissions and ambient

monitoring, modeling, analyses,

demonstrations, preparation of

inventories, and tracking emissions,

provided these activities are needed in

order to issue and implement part 71

permits; and

(7) Providing direct and indirect

support to small business stationary

sources in determining applicable

requirements and in receiving permits

under this part (to the extent that these

services are not provided by a State

Small Business Stationary Source

Technical and Environmental

Compliance Assistance Program).

(c) Establishment of fee schedule.

(1) For part 71 programs that are

administered by EPA, each part 71

source shall pay an annual fee in the

amount of $45 dollars per ton (as

adjusted pursuant to the criteria set

forth in paragraph (n)(1) of this section)

times the total tons of the actual

emissions of each regulated pollutant

(for fee calculation) emitted from the

source, including fugitive emissions.

(2) For part 71 programs that are

delegated pursuant to § 71.10, the

annual fee for each part 71 source shall

be the amount specified in paragraph

(c)(1) of this section plus a surcharge of

$3 per ton per year. The surcharge will

be used to defray the Agency’s cost of

administering program delegation.

(3) For part 71 programs that are

administered by EPA with contractor

assistance, the per ton fee will vary

depending on the extent of contractor

involvement and the cost to EPA of

contractor assistance. The EPA shall

establish a per ton fee that is based on

the contractor costs for the specific part

71 program that is being administered,

using the following formula:

Cost per ton=(E×$45)+[(1–E)×$C]+$3

surcharge

Where E represents EPA’s proportion of

total effort (expressed as a percentage of

total effort) needed to administer the

part 71 program, 1–E represents the

contractor’s effort, and C represents the

contractor assistance cost on a per ton

basis. The $3 surcharge covers EPA’s

cost for administering contractor permit

program activities. C shall be computed

by using the following formula:

C=[B+T+N] divided by 12,300,000

Where B represents the base cost

(contractor costs), where T represents

travel costs, and where N represents

non-personnel data management and

tracking costs.

(4) For programs that are delegated in

part and that also use contractor

assistance, the fee shall be computed

using the formula in paragraph (c)(3) of

this section, provided that E represents

the proportion of total effort (expressed

as a percentage) expended by EPA and

the delegate agency.

(5) The following emissions shall be

excluded from the calculation of fees

under paragraph (c)(1) of this section:

(i) The amount of a part 71 source’s

actual emissions of each regulated

pollutant (for fee calculation) that the

source emits in excess of four thousand

(4,000) tpy;

(ii) A part 71 source’s actual

emissions of any regulated pollutant (for

fee calculation) already included in the

fee calculation; and

(iii) The insignificant quantities of

actual emissions not required to be

listed or calculated in a permit

application pursuant to § 71.5(g).

(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.
20850 Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules

(7) Notwithstanding the above, if the

Administrator determines that the fee

structures provided in paragraphs (c)(1)

through (c)(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 of the Act shall be

required to be paid with respect to

emissions from any affected unit under

section 404 of the Act.

(e) Submission of initial fee

calculation work sheets and fees.

(1) Each part 71 source shall complete

and submit an initial fee calculation

work sheet as provided in paragraphs

(e)(2), (f), and (g) of this section and

shall complete and submit fee

calculation work sheets thereafter as

provided in paragraph (h) of this

section. Calculations of actual or

estimated emissions and calculation of

the fees owed by a source shall be

computed by the source on fee

calculation work sheets provided by

EPA. Fee payment in an amount that

equals one-third of the annual fees owed

must accompany each initial fee

calculation work sheet. The balance of

the annual fees owed must be paid

within four months of the due date of

the initial fee or within one year of the

effective date of the part 71 program,

whichever is earlier.

(2) The fee calculation work sheet

shall require the source to submit a

report of its actual emissions for the

preceding calendar year and to compute

fees owed based on those emissions. For

sources that have been issued part 70 or

part 71 permits, actual emissions shall

be computed using compliance methods

required by the most recent permit. If

actual emissions cannot be determined

using the compliance methods in the

permit, the actual emissions should be

determined using federally recognized

procedures. If a source commenced

operation during the preceding calendar

year, the source shall estimate its actual

emissions for the current calendar year.

In such a case, fees for the source shall

be based on the total emissions

estimated.

(f) Deadlines for submission.

(1) When EPA withdraws approval of

a part 70 program and implements a

part 71 program, part 71 sources shall

submit initial fee calculation work

sheets and fees in accordance with the

following schedule:

(i) Sources having SIC codes between

0100 and 2499 inclusive shall complete

and submit fee calculation work sheets

and fees within 4 months of the

effective date of the part 71 program;

(ii) Sources having SIC codes between

2500 and 2999 inclusive shall complete

and submit fee calculation work sheets

and fees within 5 months of the

effective date of the part 71 program;

(iii) Sources having SIC codes

between 3000 and 3999 inclusive shall

complete and submit fee calculation

work sheets and fees within 6 months

of the effective date of the part 71

program;

(iv) Sources having SIC codes higher

than 3999 shall complete and submit fee

calculation work sheets and fees within

7 months of the effective date of the part

71 program.

(2) Sources that are required under

either paragraph (f)(1) or (g) of this

section to submit fee calculation work

sheets and fees between January 1 and

March 31 may estimate their emissions

for the preceding calendar year in lieu

of submitting actual emissions data. If

the source’s initial fee calculation work

sheet was based on estimated emissions

for the source’s preceding calendar year,

then the source shall reconcile the fees

owed when it submits its annual

emissions report, as provided in

paragraph (h)(3) of this section.

(3) When EPA implements a part 71

program that does not replace an

approved part 70 program, part 71

sources shall submit initial fee

calculation work sheets and initial fees

when submitting their permit

applications in accordance with the

requirements of § 71.5(b)(1).

(4) Notwithstanding the above,

sources that become subject to the part

71 program after the program’s effective

date shall submit an initial fee

calculation work sheet and initial fees

when submitting their permit

applications in accordance with the

requirements of § 71.5(b)(1) .

(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) of this

section. However, initial fee calculation

work sheets for such sources and full

payment of annual fees shall be due

three months after the date on which the

source’s part 71 permit is issued.

(h) Annual emissions reports.

(1) Deadlines for submission. Each

part 71 source shall submit an annual

report of its actual emissions for the

preceding calendar year, a fee

calculation work sheet (based on the

report), and full payment of the annual

fee each year on the anniversary date of

its initial fee calculation work sheet,

except that sources that were required to

submit initial fee calculation work

sheets between January 1 and March 31

inclusive shall submit subsequent

annual emissions reports and fee

calculation work sheets on April 1.

(2) For sources that have been issued

part 70 or part 71 permits, actual

emissions shall be computed using

methods required by the most current

permit for determining compliance.

(3) If the source’s initial fee

calculation work sheet was based on

estimated emissions for the source’s

current or preceding calendar year, then

the source shall reconcile the fees owed

when it submits its annual emissions

report. The source shall compare the

estimated emissions from the initial

work sheet and the actual emissions

from the report and shall enter such

information on the fee calculation work

sheet that accompanies the annual

report. The source shall recompute the

initial fee accordingly and shall remit

any underpayment with the report and

work sheet. The EPA shall credit any

overpayment to the source’s account.

(i) Recordkeeping requirements. Part

71 sources will retain, in accordance

with the provisions of § 71.6(e), 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.
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(2) Each remittance shall be sent to

the Environmental Protection Agency to

the address designated on the fee

calculation work sheet or the invoice.

(l) Penalty and interest assessment.

(1) The permitting authority shall

assess interest on payments which are

received later than the date due. The

interest rate shall be the sum of the

Federal short-term rate determined by

the Secretary of the Treasury in

accordance with section 6621(a)(2) of

the Internal Revenue Code of 1986, plus

3 percentage points.

(2) The permitting authority shall

assess a penalty charge of 50 percent of

the fee amount if the fee is not paid

within 30 days of the payment due date.

(3) Part 71 sources shall be assessed

a penalty of 50 percent on

underpayments computed under

paragraph (h)(3) of this section when the

underpayment is in excess of 20 percent

of the initial estimated fee amount and

interest as computed under paragraph

(l)(1) of this section on that portion of

the underpayment in excess of 20

percent of the initial fee amount.

(m) Failure to remit fees. The

permitting authority shall not issue a

final permit or permit revision until all

fees, interest and penalties assessed

against a source under this section are

paid. The initial application of a source

shall not be found complete unless the

source has paid all fees owed.

(n) Adjustments of fee schedules.

(1) The fee schedules provided in

paragraphs (c)(1) through (c)(4) of this

section shall remain in effect until

December 31, 1996. Thereafter, the fee

schedules shall be changed annually by

the percentage, if any, of any annual

increase in the Consumer Price Index.

(2) Part 71 permit program costs and

fees will be reviewed by the

Administrator at least every two years,

and changes will be made to the fee

schedule as necessary to reflect permit

program costs.

(3) When changes to a fee schedule

are made based on periodic reviews by

the Administrator, the changes will be

published in the Federal Register as a

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 nonState 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 Delegation of

Authority Agreement. The Agreement

shall be published in the Federal

Register.

(c) Revision or revocation of

Delegation of Authority Agreement. An

Agreement may be modified, amended,

or revoked, in part or in whole, by the

Administrator after consultation with

the delegate agency.

(d) Transmission of information to the

Administrator.

(1) When a part 71 program has been

delegated in accordance with the

provisions of this section, except as

provided by § 71.7(a)(1)(v), the delegate

agency shall provide to the

Administrator a copy of each

application for a permit, permit

renewal, or permit revision (including

any compliance plan, or any portion the

Administrator determines to be

necessary to review the application and

permit effectively), each proposed

permit, and each final part 71 permit.

(2) The applicant may be required by

the delegate agency to provide a copy of

the permit application (including the

compliance plan) directly to the

Administrator.

(3) Upon agreement with the

Administrator, the delegate agency may

submit to the Administrator a permit

application summary form and any

relevant portion of the permit

application and compliance plan, in

place of the complete permit application

and compliance plan. To the extent

practicable, the preceding information

shall be provided in computer-readable

format compatible with EPA’s national

database management system.

(e) Retention of records. The records

for each draft, proposed, and final

permit, and application for permit

renewal or revision shall be kept for a

period of 5 years by the delegate agency.

The delegate agency shall also submit to

the Administrator such information as

the Administrator may reasonably

require to ascertain whether the delegate

agency is implementing, administering,

and enforcing the delegated part 71

program in compliance with the

requirements of the Act and of this part.

(f) Prohibition of default issuance.

(1) For the purposes of Federal law

and title V of the Act, when a part 71

program has been delegated in

accordance with the provisions of this

section, no part 71 permit (including a

permit renewal or revision) will be

issued until affected States have had an

opportunity to review the draft permit

as required pursuant to § 71.8(a) and

EPA has had an opportunity to review

the proposed permit.

(2) To receive delegation of signature

authority, the legal opinion submitted

by the delegate agency pursuant to

paragraph (a) of this section shall certify

that no applicable provision of State,

local or Tribal law requires that a part

71 permit or renewal be issued after a

certain time if the delegate agency has

failed to take action on the application

(or includes any other similar provision

providing for default issuance of a

permit), unless EPA has waived such

review for EPA and affected States.

Notwithstanding this prohibition on

default permit issuance, permits may be

revised on a default basis pursuant to

the procedures in § 71.7 (e) and (f).

(g) EPA objection.

(1) No permit for which an

application must be transmitted to the

Administrator under paragraph (d)(1) of

this section shall be issued if the

Administrator objects to its issuance in

writing within 45 days of receipt of the

proposed permit and all necessary

supporting information. When a part 71

program has been delegated in

accordance with the provisions of this

section, failure of the delegate agency to

do any of the following shall constitute

grounds for an objection by the

Administrator:

(i) Comply with paragraph (d) of this

section;

(ii) Submit any information necessary

to review adequately the proposed

permit;

(iii) Process the permit under the

procedures required by §§ 71.7 and

71.11;
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(iv) Propose or issue a part 71 permit

that complies with applicable

requirements of the Act or the

requirements under this part, except as

provided in § 71.7(a)(6); or

(v) 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 proposed permit shall not

issue and thereafter the Administrator

shall issue a part 71 permit to the

applicant in accordance with the

requirements of this part.

(h) Public petitions. In the case of a

delegated program, any interested

person may petition the Administrator

to reopen a permit for cause as provided

in § 71.11(n).

(i) Appeal of permits. When a part 71

program has been delegated with

signature authority in accordance with

the provisions of this section, any

permit applicant and any person or

affected State that submitted

recommendations or comments on the

draft permit, or that participated in the

public hearing process may petition the

Environmental Appeals Board in

accordance with § 71.11(l)(1).

(j) Non-delegable conditions.

(1) The Administrator’s authority to

object to the issuance of a part 71 permit

cannot be delegated to an agency not

within EPA.

(2) The Administrator’s authority to

act upon petitions submitted pursuant

to paragraph (h) of this section cannot

be delegated to an agency not within

EPA.

§ 71.11 Administrative record, public

participation, and administrative review.

The provisions of paragraphs (a)

through (j) of this section shall apply to

initial permit issuance, permit renewals,

permit reopenings, and significant

permit revisions but not to permit

revisions qualifying for minor permit

revision procedures, de minimis permit

revision procedures, or administrative

amendments. The provisions of

paragraphs (k), (l), and (m) of this

section shall apply to all permit

proceedings.

(a) Draft permits.

(1) The permitting authority shall

promptly provide notice to the

applicant of whether the application is

complete pursuant to § 71.7(a)(3).

(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 in the

case of administrative permit revisions,

or when a request for permit revision,

revocation and reissuance, or

termination has been denied under

paragraph (a)(2) of this section. Written

notice of that denial shall be given to

the requester and to the permittee.

(iii) Public notices may describe more

than one permit or permit action.

(2) Timing.

(i) Public notice of the preparation of

a draft permit, (including a notice of

intent to deny a permit application),

shall allow at least 30 days for public

comment.

(ii) Except as provided under

§ 71.7(g)(5)(ii)(C), 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
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20853

or Federal Land Manager whose lands

may be affected by emissions from the

source;

(D) Any unit of local government

including the local emergency planning

committee, having jurisdiction over the

area where the source is located and to

each State agency having any authority

under State law with respect to the

operation of such source;

(E) Persons on a mailing list

developed by:

(1) Including those who request in

writing to be on the list;

(2) Soliciting persons for ‘‘area lists’’

from participants in past permit

proceedings in that area; and

(3) Notifying the public of the

opportunity to be put on the mailing list

through periodic publication in the

public press and, where deemed

appropriate by the permitting authority,

in such publications as regional and

State funded newsletters, environmental

bulletins, or State law journals. The

permitting authority may update the

mailing list from time to time by

requesting written indication of

continued interest from those listed.

The permitting authority may delete

from the list the name of any person

who fails to respond to such a request.

(ii) By publication of a notice in a

daily or weekly newspaper of general

circulation within the area affected by

the source.

(iii) By any other method reasonably

calculated to give actual notice of the

action in question to the persons

potentially affected by it, including

press releases or any other forum or

medium to elicit public participation.

(4) Contents.

(i) All public notices. All public

notices issued under this subpart shall

contain the following minimum

information:

(A) The name and address of the

permitting authority processing the

permit;

(B) The name and address of the

permittee or permit applicant and, if

different, of the facility regulated by the

permit, except in the case of draft

general permits;

(C) The activity or activities involved

in the permit action;

(D) The emissions change involved in

any permit revision;

(E) The name, address, and telephone

number of a person whom interested

persons may contact for instructions on

how to obtain additional information,

such as a copy of the draft permit, the

statement of basis, the application,

relevant supporting materials, and other

materials available to the permitting

authority that are relevant to the

permitting decision.

(F) A brief description of the comment

procedures required by paragraph (e) of

this section, a statement of procedures

to request a hearing (unless a hearing

has already been scheduled) and other

procedures by which the public may

participate in the final permit decision;

(G) The location of the administrative

record, the times at which the record

will be open for public inspection, and

a statement that all data submitted by

the applicant are available as part of the

administrative record; and

(H) Any additional information

considered necessary or proper.

(ii) Public notices for hearings. Public

notice of a hearing may be combined

with other notices required under

paragraph (d)(1) of this section. Any

public notice of a hearing under

paragraph (f) of this section shall

contain the following information:

(A) The information described in

paragraph (d)(4)(i) of this section;

(B) Reference to the date of previous

public notices relating to the permit;

(C) The date, time, and place of the

hearing; and

(D) A brief description of the nature

and purpose of the hearing, including

the applicable rules and the comment

procedures.

(5) All persons identified in

paragraphs (d)(3)(i) (A), (B), (C), (D), and

(E) of this section shall be mailed a copy

of the public hearing notice described in

paragraph (d)(4)(ii) of this section.

(e) Public comments and requests for

public hearings. During the public

comment period provided under

paragraph (a) of this section, any

interested person may submit written

comments on the draft permit and may

request a public hearing, if no hearing

has already been scheduled. A request

for a public hearing shall be in writing

and shall state the nature of the issues

proposed to be raised at the hearing. All

comments shall be considered in

making the final decision and shall be

answered as provided in paragraph (j) of

this section. The permitting authority

will keep a record of the commenters

and of the issues raised during the

public participation process, and such

records shall be available to the public.

(f) Public hearings.

(1) The permitting authority shall

hold a hearing whenever it finds, on the

basis of requests, a significant degree of

public interest in a draft permit.

(2) The permitting authority may also

hold a public hearing at its discretion,

whenever, for instance, such a hearing

might clarify one or more issues

involved in the permit decision.

(3) Public notice of the hearing shall

be given as specified in paragraph (d) of

this section.

(4) Whenever a public hearing is held,

the permitting authority shall designate

a Presiding Officer for the hearing who

shall be responsible for its scheduling

and orderly conduct.

(5) Any person may submit oral or

written statements and data concerning

the draft permit. Reasonable limits may

be set upon the time allowed for oral

statements, and the submission of

statements in writing may be required.

The public comment period under

paragraph (d) of this section shall be

automatically extended to the close of

any public hearing under this section.

The hearing officer may also extend the

comment period by so stating at the

hearing.

(6) A tape recording or written

transcript of the hearing shall be made

available to the public.

(g) Obligation to raise issues and

provide information during the public

comment period. All persons, including

applicants, who believe any condition

of a draft permit is inappropriate or that

the permitting authority’s initial

decision to deny an application,

terminate a permit, or prepare a draft

permit is inappropriate, must raise all

reasonably ascertainable issues and

submit all reasonably ascertainable

arguments supporting their position by

the close of the public comment period

(including any public hearing). Any

supporting materials that are submitted

shall be included in full and may not be

incorporated by reference, unless they

are already part of the administrative

record in the same proceeding, or

consist of State or Federal statutes and

regulations, EPA documents of general

applicability, or other generally

available reference materials. In the case

of a program delegated pursuant to

§ 71.10, 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
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persons, including applicants, who

believe any condition of a draft permit

is inappropriate or that the permitting

authority’s initial decision to deny an

application, terminate a permit, or

prepare a draft permit is inappropriate,

must submit all reasonably available

factual grounds supporting their

position, including all supporting

material, by a date not less than 30 days

after public notice under paragraph

(h)(2) of this section, set by the

permitting authority. Thereafter, any

person may file a written response to

the material filed by any other person,

by a date, not less than 20 days after the

date set for filing of the material, set by

the permitting authority.

(2) Public notice of any comment

period under this paragraph shall

identify the issues to which the

requirements of § 71.11 (h)(1) through

(h)(4) shall apply.

(3) On its own motion or on the

request of any person, the permitting

authority may direct that the

requirements of paragraph (h)(1) of this

section shall apply during the initial

comment period where it reasonably

appears that issuance of the permit will

be contested and that applying the

requirements of paragraph (h)(1) of this

section will substantially expedite the

decision making process. The notice of

the draft permit shall state whenever

this has been done.

(4) A comment period of longer than

30 days may be necessary in

complicated proceedings to give

commenters a reasonable opportunity to

comply with the requirements of this

section. Commenters may request longer

comment periods and they may be

granted to the extent the permitting

authority finds it necessary.

(5) If any data, information, or

arguments submitted during the public

comment period appear to raise

substantial new questions concerning a

permit, the permitting authority may

take one or more of the following

actions:

(i) Prepare a new draft permit,

appropriately modified;

(ii) Prepare a revised statement of

basis, and reopen the comment period;

or

(iii) Reopen or extend the comment

period to give interested persons an

opportunity to comment on the

information or arguments submitted.

(6) Comments filed during the

reopened comment period shall be

limited to the substantial new questions

that caused the reopening. The public

notice shall define the scope of the

reopening.

(7) Public notice of any of the above

actions shall be issued under paragraph

(d) of this section.

(i) Issuance and effective date of

permit.

(1) After the close of the public

comment period on a draft permit, the

permitting authority shall issue a final

permit decision. The permitting

authority shall notify the applicant and

each person who has submitted written

comments or requested notice of the

final permit decision. This notice shall

include reference to the procedures for

appealing a decision on a permit. For

the purposes of this section, a final

permit decision means a final decision

to issue, deny, revise, revoke and

reissue, renew, or terminate a permit.

(2) A final permit decision shall

become effective immediately upon

issuance of the decision unless a later

effective date is specified in the

decision.

(j) Response to comments.

(1) At the time that any final permit

decision is issued, the permitting

authority shall issue a response to

comments. This response shall:

(i) Specify which provisions, if any, of

the draft permit have been changed in

the final permit decision, and the

reasons for the change; and

(ii) Briefly describe and respond to all

significant comments on the draft

permit raised during the public

comment period, or during any hearing.

(2) Any documents cited in the

response to comments shall be included

in the administrative record for the final

permit decision as defined in paragraph

(k) of this section. If new points are

raised or new material supplied during

the public comment period, the

permitting authority may document its

response to those matters by adding new

materials to the administrative record.

(3) The response to comments shall be

available to the public.

(4) The permitting authority will

notify in writing any affected State of

any refusal to accept recommendations

for the permit that the State submitted

during the public or affected State

review period.

(k) Administrative record for final

permits.

(1) The permitting authority shall base

final permit decisions on the

administrative record defined in

paragraph (k)(2) of this section.

(2) The administrative record for any

final permit shall consist of:

(i) All comments received during any

public comment period, including any

extension or reopening;

(ii) The tape or transcript of any

hearing(s) held;

(iii) Any written material submitted at

such a hearing;

(iv) The response to comments and

any new materials placed in the record;

(v) Other documents contained in the

supporting file for the permit;

(vi) The final permit;

(vii) The application and any

supporting data furnished by the

applicant;

(viii) The draft permit or notice of

intent to deny the application or to

terminate the permit;

(ix) The statement of basis for the

draft permit;

(x) All documents cited in the

statement of basis;

(xi) Other documents contained in the

supporting file for the draft permit.

(3) The additional documents

required under paragraph (k)(2) of this

section should be added to the record as

soon as possible after their receipt or

publication by the permitting authority.

The record shall be complete on the

date the final permit is issued.

(4) Material readily available at the

permitting authority, or published

materials which are generally available

and which are included in the

administrative record under the

standards of paragraph (j) of this section

need not be physically included in the

same file as the rest of the record as long

as it is specifically referred to in the

statement of basis or in the response to

comments.

(l) Appeal of permits.

(1) Within 30 days after a final permit

decision has been issued, any person

who filed comments on the draft permit

or participated in the public hearing

may petition the Environmental

Appeals Board to review any condition

of the permit decision. Any person who

failed to file comments or failed to

participate in the public hearing on the

draft permit may petition for

administrative review only to the extent

of the changes from the draft to the final

permit decision. Except for revisions

qualifying for minor permit revision

procedures, de minimis permit revision

procedures, or administrative

amendments, the 30-day period within

which a person may request review

under this section begins with the

service of notice of the permitting

authority’s action unless a later date is

specified in that notice. For revisions

processed pursuant to minor permit

revision procedures, the 30-day period

within which a person may request

review under this section begins on the

date after the permitting authority

notifies the source and commenters of

the final permit action. For revisions

processed pursuant to de minimis

permit revision procedures, the 30-day

period within which a person may

request review under this section begins
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / Proposed Rules 20855

on the date after the expiration of the

permitting authority’s period to

disapprove the revision or revoke the

revision in response to a citizen

petition, whichever is applicable. For

revisions processed pursuant to

administrative amendment procedures,

the 30-day period within which a

person may request review under this

section begins on the date following the

expiration of the 60-day period after

which the administrative amendment is

effective. The petition shall include a

statement of the reasons supporting that

review, including a demonstration that

any issues raised were raised during the

public comment period (including any

public hearing) to the extent required by

these regulations unless the petitioner

demonstrates that it was impracticable

to raise such objections within such

period or unless the grounds for such

objection arose after such period, and,

when appropriate, a showing that the

condition in question is based on:

(i) A finding of fact or conclusion of

law which is clearly erroneous; or

(ii) An exercise of discretion or an

important policy consideration which

the Environmental Appeals Board

should, in its discretion, review.

(2) The Board may also decide on its

initiative to review any condition of any

permit issued under this part. The

Board must act under paragraph (l) of

this section within 30 days of the

service date of notice of the permitting

authority’s action.

(3) Within a reasonable time following

the filing of the petition for review, the

Board shall issue an order either

granting or denying the petition for

review. To the extent review is denied,

the conditions of the final permit

decision become final agency action.

Public notice of any grant of review by

the Board under paragraph (l) (1) or (2)

of this section shall be given as

provided in paragraph (d) of this

section. Public notice shall set forth a

briefing schedule for the appeal and

shall state that any interested person

may file an amicus brief. Notice of

denial of review shall be sent only to the

permit applicant and to the person(s)

requesting review.

(4) A petition to the Board under

paragraph (l)(1) of this section is, under

42 U.S.C. 307(b), a prerequisite to

seeking judicial review of the final

agency action.

(5) For purposes of judicial review,

final agency action occurs when a final

permit is issued or denied by the

permitting authority and agency review

procedures are exhausted. A final

permit decision shall be issued by the

permitting authority:

(i) When the Board issues notice to

the parties that review has been denied;

(ii) When the Board issues a decision

on the merits of the appeal and the

decision does not include a remand of

the proceedings; or

(iii) Upon the completion of remand

proceedings if the proceedings are

remanded, unless the Board’s remand

order specifically provides that appeal

of the remand decision will be required

to exhaust administrative remedies.

(6) Neither the filing of a petition for

review of any condition of the permit or

permit decision nor the granting of an

appeal by the Environmental Appeals

Board shall stay the effect of any

contested permit or permit condition.

(m) Computation of time.

(1) Any time period scheduled to

begin on the occurrence of an act or

event shall begin on the day after the act

or event.

(2) Any time period scheduled to

begin before the occurrence of an act or

event shall be computed so that the

period ends on the day before the act or

event, except as otherwise provided.

(3) If the final day of any time period

falls on a weekend or legal holiday, the

time period shall be extended to the

next working day.

(4) Whenever a party or interested

person has the right or is required to act

within a prescribed period after the

service of notice or other paper upon

him or her by mail, 3 days shall be

added to the prescribed time.

(n) Public petitions to the

Administrator.

(1) Any interested person (including

the permittee) may petition the

Administrator to reopen a permit for

cause, and the Administrator may

commence a permit reopening on his or

her own initiative. However, the

Administrator shall not revise, revoke

and reissue, or terminate a permit

except for the reasons specified in

§ 71.7(i)(1) or § 71.6(a)(5)(i). All requests

shall be in writing and shall contain

facts or reasons supporting the request.

(2) If the Administrator decides the

request is not justified, he or she shall

send the requester a brief written

response giving a reason for the

decision. Denials of requests for

revision, revocation and reissuance, or

termination are not subject to public

notice, comment, or hearings. Denials

by the Administrator may be informally

appealed to the Environmental Appeals

Board by a letter briefly setting forth the

relevant facts. The Board may direct the

Administrator to begin revision,

revocation and reissuance, or

termination proceedings under

paragraph (n)(3) of this section. The

appeal shall be considered denied if the

Board takes no action within 60 days

after receiving it. This informal appeal

is, under 42 U.S.C. 307, a prerequisite

to seeking judicial review of EPA action

in denying a request for revision,

revocation and reissuance, or

termination.

(3) If the Administrator decides the

request is justified and that cause exists

to revise, revoke and reissue or

terminate a permit, he or she shall

initiate proceedings to reopen the

permit pursuant to § 71.7(i) or § 71.7(j).

§ 71.12 Prohibited acts.

Violations of any applicable

requirement; any permit term or

condition; any fee or filing requirement;

any duty to allow or carry out

inspection, entry, or monitoring

activities; or any regulation or order

issued by the permitting authority

pursuant to this part are violations of

the Act and are subject to full Federal

enforcement authorities available under

the Act.

[FR Doc. 95–10054 Filed 4–26–95; 8:45 am]

BILLING CODE 6560–50–P