QUESTIONS AND ANSWERS ON
THE REQUIREMENTS OF OPERATING PERMITS
PROGRAM REGULATIONS
Prepared By:
The U. S. Environmental Protection Agency
July 7, 1993
INTRODUCTION
This document summarizes questions and answers (Q's & A's)
on requirements and implementation of the Environmental
Protection Agency's (EPA) final operating permits program
regulations. The operating permits regulations were published on
July 21, 1992, in Part 70 of Chapter I of Title 40 of the Code of
Federal Regulations (57 FR 32250). These rules are mandated by
Title V of the Clean Air Act (Act) as amended in 1990.
The contents of this document reflect a wide range of
questions that have been asked of EPA concerning implementation
of the operating permits program. In part, the document reflects
audience questions and EPA's responses at workshops and
conferences sponsored by EPA and by other groups at which EPA
personnel participated as speakers. Workshop attendees included
personnel from EPA Regional Offices, State and local permitting
agencies, industry representatives, and other individuals from
the interested public, including environmental groups.
Questions and answers are organized in chapters primarily
according to the sections of the Part 70 regulations with
additional topics covered in latter chapters.
This document is available in a WordPerfect 5.1 file on
EPA's electronic bulletin boards and will be periodically updated
by addition of more questions and answers. Each succeeding set
of additions to this document will be indicated so the user can
distinguish new material. As new material is added, it will be
designated in WordPerfect "redline" font. "Redline" font appears
differently (e.g., shading or dotted underline) according to the
printer being used. Example:
(WordPerfect redline)
As each new addition of Q's & A's is made, the "redline"
font will be removed from the previous addition so that only the
latest material added will appear in "redline" font. Document
updates will be recorded as they are made.
This document responds to many requests for information
concerning implementation of Part 70. The contents are based on
the Part 70 requirements and the requirements of Title V.
Answers to questions are intended solely as guidance representing
the Agency's current position on Part 70 implementation. The
information contained herein is neither rulemaking nor final
Agency action and cannot be relied upon to create any rights
enforceable by any party. In addition, due to litigation
underway, the Agency's position on aspects of the program
discussed in this document may change. If so, answers will be
revised accordingly. As with periodic updates to this document,
any change will be denoted with the Wordperfect "redline" font to
distinguish any revised answer from a previous version.
RECORD OF DOCUMENT UPDATES
Original document: July 7, 1993
First Update: _____________
TABLE OF CONTENTS
Page
1.0 PROGRAM OVERVIEW. . . . . . . . . . . . . . . . . . . . . . . . . 1-1
2.0 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.1 Applicable Requirements. . . . . . . . . . . . . . . . . . . 2-1
2.2 Affected States. . . . . . . . . . . . . . . . . . . . . . . 2-1
2.3 Major Source . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.4 Potential to Emit. . . . . . . . . . . . . . . . . . . . . . 2-1
2.5 Regulated Air Pollutant. . . . . . . . . . . . . . . . . . . 2-2
2.6 Regulated Pollutant for Fees . . . . . . . . . . . . . . . . 2-3
2.7 Responsible Official . . . . . . . . . . . . . . . . . . . . 2-3
3.0 APPLICABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 3-1
3.1 Sources Covered - General. . . . . . . . . . . . . . . . . . 3-1
3.2 Source Category Exemptions . . . . . . . . . . . . . . . . . 3-2
3.3 "Synthetic Minors" . . . . . . . . . . . . . . . . . . . . . 3-2
3.4 Emissions Unit Coverage. . . . . . . . . . . . . . . . . . . 3-3
3.5 Fugitive Emissions . . . . . . . . . . . . . . . . . . . . . 3-3
3.6 Applicability Duration . . . . . . . . . . . . . . . . . . . 3-3
3.7 Section 112(r) Sources . . . . . . . . . . . . . . . . . . . 3-4
3.8 Area HAP's Sources . . . . . . . . . . . . . . . . . . . . . 3-4
3.9 Acid Rain Source Obligations . . . . . . . . . . . . . . . . 3-4
3.10 Non-Act Requirements . . . . . . . . . . . . . . . . . . . . 3-4
3.11 Radionuclide Sources . . . . . . . . . . . . . . . . . . . . 3-4
4.0 PROGRAM SUBMITTALS. . . . . . . . . . . . . . . . . . . . . . . . 4-1
4.1 Program Submittal Content. . . . . . . . . . . . . . . . . . 4-1
4.2 EPA Review of Program Submittals . . . . . . . . . . . . . . 4-2
4.3 Interim Approval . . . . . . . . . . . . . . . . . . . . . . 4-2
4.4 Equivalent Program Elements. . . . . . . . . . . . . . . . . 4-2
4.5 Attorney General's Opinion . . . . . . . . . . . . . . . . . 4-3
4.6 Legal Authority. . . . . . . . . . . . . . . . . . . . . . . 4-3
4.7 Partial Programs . . . . . . . . . . . . . . . . . . . . . . 4-3
4.8 Operational Flexibility. . . . . . . . . . . . . . . . . . . 4-3
4.9 "Off Permit" . . . . . . . . . . . . . . . . . . . . . . . . 4-5
4.10 Transition Plan. . . . . . . . . . . . . . . . . . . . . . . 4-5
4.11 Judicial Review. . . . . . . . . . . . . . . . . . . . . . . 4-6
4.12 Implementation Agreements. . . . . . . . . . . . . . . . . . 4-6
5.0 PERMIT APPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . 5-1
5.1 Application Content. . . . . . . . . . . . . . . . . . . . . 5-1
5.2 Timely and Complete Submittal. . . . . . . . . . . . . . . . 5-1
5.3 Application Review . . . . . . . . . . . . . . . . . . . . . 5-2
5.4 Insignificant Activities . . . . . . . . . . . . . . . . . . 5-2
5.5 Emissions Reporting. . . . . . . . . . . . . . . . . . . . . 5-3
5.6 Confidential Information . . . . . . . . . . . . . . . . . . 5-3
5.7 Compliance Plans . . . . . . . . . . . . . . . . . . . . . . 5-3
5.8 Certification of Truth, etc. . . . . . . . . . . . . . . . . 5-4
5.9 Cross-Referencing. . . . . . . . . . . . . . . . . . . . . . 5-4
6.0 PERMIT CONTENT. . . . . . . . . . . . . . . . . . . . . . . . . . 6-1
6.1 General Permit Content . . . . . . . . . . . . . . . . . . . 6-1
6.2 Equivalency Determination. . . . . . . . . . . . . . . . . . 6-1
6.3 Federal Enforceability . . . . . . . . . . . . . . . . . . . 6-1
6.4 Compliance Certification . . . . . . . . . . . . . . . . . . 6-2
6.5 Monitoring, Recordkeeping, Reporting . . . . . . . . . . . . 6-2
6.6 Inspection Provisions. . . . . . . . . . . . . . . . . . . . 6-3
6.7 General Permits. . . . . . . . . . . . . . . . . . . . . . . 6-4
6.8 Permit Shield. . . . . . . . . . . . . . . . . . . . . . . . 6-5
6.9 Alternative Scenarios. . . . . . . . . . . . . . . . . . . . 6-6
6.10 Emergency Defense/Updates. . . . . . . . . . . . . . . . . . 6-6
6.11 Noncomplying Sources . . . . . . . . . . . . . . . . . . . . 6-6
6.12 Model Permits. . . . . . . . . . . . . . . . . . . . . . . . 6-6
6.13 Emissions Trading. . . . . . . . . . . . . . . . . . . . . . 6-6
7.0 PERMIT PROCESSING . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.1 General Process. . . . . . . . . . . . . . . . . . . . . . . 7-1
7.2 Administrative Amendments. . . . . . . . . . . . . . . . . . 7-1
7.3 Minor Modifications. . . . . . . . . . . . . . . . . . . . . 7-1
7.4 Significant Modifications. . . . . . . . . . . . . . . . . . 7-2
7.5 Application Shield . . . . . . . . . . . . . . . . . . . . . 7-2
7.6 Public Participation . . . . . . . . . . . . . . . . . . . . 7-2
7.7 Renewals . . . . . . . . . . . . . . . . . . . . . . . . . . 7-2
7.8 Reopenings . . . . . . . . . . . . . . . . . . . . . . . . . 7-3
7.9 Title I Modifications. . . . . . . . . . . . . . . . . . . . 7-3
7.10 Permit Denial. . . . . . . . . . . . . . . . . . . . . . . . 7-3
7.11 Temporary Sources. . . . . . . . . . . . . . . . . . . . . . 7-3
8.0 PERMIT REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.1 EPA Review . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.2 Affected State Review. . . . . . . . . . . . . . . . . . . . 8-1
8.3 Public Participation . . . . . . . . . . . . . . . . . . . . 8-1
8.4 Data Management. . . . . . . . . . . . . . . . . . . . . . . 8-1
9.0 PERMIT FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1
9.1 Presumptive Minimum Program Cost . . . . . . . . . . . . . . 9-1
9.2 Fee Demonstration. . . . . . . . . . . . . . . . . . . . . . 9-1
9.3 Funded Program Costs . . . . . . . . . . . . . . . . . . . . 9-1
9.4 Fee Schedule . . . . . . . . . . . . . . . . . . . . . . . . 9-3
9.5 Small Business Program Funding . . . . . . . . . . . . . . . 9-4
9.6 Phase I Source Fee Exemption . . . . . . . . . . . . . . . . 9-4
10.0 FEDERAL OVERSIGHT AND SANCTIONS . . . . . . . . . . . . . . . . 10-1
11.0 ENFORCEMENT AUTHORITY . . . . . . . . . . . . . . . . . . . . . 11-1
11.1 Enforcement Authority. . . . . . . . . . . . . . . . . . . 11-1
11.2 Criminal Authority . . . . . . . . . . . . . . . . . . . . 11-1
12.0 PROGRAM INTERFACE . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.1 SIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.2 Section 112. . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.3 New Source Review. . . . . . . . . . . . . . . . . . . . . 12-2
12.4 Acid Rain. . . . . . . . . . . . . . . . . . . . . . . . . 12-2
12.5 Enhanced Monitoring. . . . . . . . . . . . . . . . . . . . 12-8
12.6 Stratospheric Ozone. . . . . . . . . . . . . . . . . . . . 12-8
13.0 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 13-1
13.1 Indian Lands . . . . . . . . . . . . . . . . . . . . . . . 13-1
13.2 Pollution Prevention . . . . . . . . . . . . . . . . . . . 13-1
14.0 PART 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-1
1.0 PROGRAM OVERVIEW
(No questions in this section at this time) 2.0 DEFINITIONS
2.1 Applicable Requirements
1. Is Title V applicable to sources under the Boiler and
Industrial Furnace (BIF) rule?
No. The BIF rule falls under authority of the Resource
Conservation and Recovery Act (RCRA), not Clean Air Act
authority, and thus sources are not required to have a Title V
permit if they are solely affected by the BIF rule.
2.2 Affected States
1. When is a State an "affected State?" What determines if a
State is an "affected State?"
A State is an "affected State" if a part of it lies within a
50-mile radius of the permitted source, or if it is contiguous
and if its air quality may be affected by the permit action.
An affected State must include Indian lands where the tribe
has an approved Title V program and is being treated as a
State for purposes of Title V, but need not include a local
permitting authority. Whereas Title V indicates the
responsibility is to notify the affected State, the issuing
agency may also notify the local permitting authority as well.
Alternatively, it may notify only the local agency in lieu of
the affected State, upon agreement with the affected State.
2.3 Major Source
1. What is the meaning of "contiguous" as used in the definition
of source?
The definition of major source in section 70.2 requires that
all commonly owned or controlled stationary sources on
contiguous or adjacent properties be aggregated [if they are
within the same Standard Industrial Code (SIC) major group]
for the purposes of determining if the source is major. The
definition of contiguous has the same meaning and application
as under the PSD regulations and, in general, means properties
that are touching or have a common edge or boundary. For a
discussion of major source and the concept of what constitutes
contiguous or adjacent property, refer to the preamble of the
August 7, 1980 PSD final regulation (specifically, pages 52695
and 52696 of the Federal Register) as well as the EPA NSR
Guidance Notebook (ref: determinations #3.18 and #3.25).
2.4 Potential to Emit
1. Is a source's potential to emit determined with or without
consideration of control equipment?
Only control equipment and limits on operations, hours, fuel
usage, etc., that are federally-enforceable limits and/or
requirements may be considered in determining a source's
potential to emit.
2.5 Regulated Air Pollutant
1. How does the permitting authority determine which volatile
organic compounds (VOC's) are regulated air pollutants? For
example, some States have a more limited list of VOC's,
especially photochemically reactive organic chemicals, than
EPA does.
Under EPA's definition, all compounds of carbon are VOC's and
subject to Title V unless they are exempt as negligibly
reactive, as described in the Federal Register (42 FR 35314,
44 FR 32042, 45 FR 32424, 45 FR 48942, and 57 FR 3941). The
permitting authority should include as regulated pollutants
all VOC's that are not exempted by EPA. More information on
regulated air pollutants can be found in an April 26, 1993,
memorandum from Lydia N. Wegman, Deputy Director, Office of
Air Quality Planning and Standards to Air Division Director,
Regions I-X, "Definition of Regulated Air Pollutant for
Purposes of Title V." The EPA's definition of VOC is as
follows:
"Volatile organic compounds (VOC)" means any compound of
carbon, excluding carbon monoxide, carbon dioxide, carbonic
acid, metallic carbides or carbonates, and ammonium carbonate,
which participates in atmospheric photochemical reactions.
This includes any such organic compound other than the
following, which have been determined to have negligible
photochemical reactivity: methane; ethane; methylene chloride
(dichloromethane); 1,1,1-trichloroethane (methyl chloroform);
1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113);
trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-
12); chlorodifluoromethane (HCFC-22); trifluoromethane (HFC-
23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-114);
chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-
dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-
134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-
difluoroethane (HCFC-142b); 2-chloro-1,1,1,2-tetrafluoroethane
(HCFC-124); pentafluoroethane (HFC-125); 1,1,2,2-
tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a);
1,1-difluoroethane (HFC-152a); and perfluorocarbon compounds
which fall into these classes:
o Cyclic, branched, or linear, completely fluorinated
alkanes,
o Cyclic, branched, or linear, completely fluorinated
ethers with no unsaturations,
o Cyclic, branched, or linear, completely fluorinated
tertiary amines with no unsaturations, and
o Sulfur containing perfluorocarbons with no
unsaturations and with sulfur bonds only to carbon and
fluorine.
2. The Hazardous Organic National Emission Standards for
Hazardous Air Pollutants (NESHAP), known as the HON, will
require sources to meet a total hazardous air pollutants (HAP)
emissions limit, but will regulate approximately 140 of the
189 specific pollutants identified in section 112(b). When the
HON is promulgated, how many HAP's will be regulated under
Title V as a result of the HON?
When the HON is promulgated, the approximately 140 HAP's will
become regulated air pollutants as defined under Title V.
3. If a NESHAP is promulgated for one source category, is the
pollutant considered "regulated" for all sources?
Yes. Except for section 112(g) modifications, if a standard
is promulgated for one source category, the pollutant is
considered "regulated" for all sources, regardless of type,
for permitting purposes. For section 112(g), a determination
of the Maximum Achievable Control Technology (MACT) with
respect to one source causes a pollutant to be regulated only
for that specific source.
2.6 Regulated Pollutant for Fees
2.7 Responsible Official 3.0 APPLICABILITY
3.1 Sources Covered - General
1. Are all major sources of HAP's subject to the Title V
permitting program or will any of these sources be exempted?
The 10/25 tons per year (tpy) major source definition in
section 112 could affect numerous sources, especially if
"lesser quantity cutoffs" are promulgated.
All major sources of HAP's are subject to Title V, whether the
pollutants are regulated or not, and must obtain operating
permits. Note the definition in section 112(a)(1) of major
sources for HAP's. There is no legal option for regulatory
exemption [see section 502(a) of the Act].
2. If the EPA establishes lesser quantity cutoffs than the 10/25
tpy major source threshold, what effect will lower limits have
on permitting applicability?
The lesser quantity cutoffs would provide a lower definition
of "major" and, as such, would require more sources of toxics
to obtain Title V permits than required by the 10/25 ton per
year cutoff.
3. What if a source is "major" within the meaning of section 112,
but no NESHAP has been promulgated? Must that source get a
permit?
Yes. It is its status as a major source that drives
applicability, not the presence of particular regulatory
requirements.
4. Under what rule is a permit issued when the permitting
authority has no air toxic regulations?
The permit is issued under the Part 70 program as are other
operating permits. If a permitting authority has no HAP's
requirements and no NESHAP has been issued, then there are no
air toxic requirements on the source, and the permit is
"hollow" with respect to HAP's. The Title V permit would
require reporting of emissions every 6 months and annual
certification of HAP emissions from major sources even if no
standards have been promulgated.
5. What arbitration process is available to a source in making an
applicability determination?
Part 70 does not require an operating permits program to
provide for an arbitration process with respect to
applicability determinations, other than to provide for
judicial review in State court of final permit actions.
However, a permitting authority may establish such a process
as long as final action on the permit occurs within the time
frames in Part 70.
6. Will Title V permits be required for major sources
"grandfathered" from requirements such as New Source
Performance Standards (NSPS)?
Yes. Applicability for Title V sources is based solely on
potential to emit, not on whether a source is regulated. If a
grandfathered source is determined to be a major source, it
must have a Title V permit.
7. Are Title VI sources (chlorofluorocarbons) required to obtain
a Title V permit? What if a permitting authority does not
have authority to permit Title VI sources?
If a Title VI source is a major source, it is subject to Title
V and must obtain a permit. Even if there are no applicable
requirements, a source still must apply for a permit solely
due to its status as a major source. When Title VI rules are
promulgated, an applicable requirement will be created and a
permitting authority must have or obtain the authority to
incorporate Title VI requirements into the permit to keep
responsibility for implementing its Part 70 program, unless
EPA has decided that incorporation of the Title VI
requirements into the permit is inappropriate.
3.2 Source Category Exemptions
1. What is meant by "deferral of nonmajor sources"? What sources
may be deferred and until when?
Nonmajor sources are those that are subject to Title V but are
not "major" as defined in section 70.2 (e.g., nonmajor sources
include area sources subject to NSPS or NESHAP, and possibly
some acid rain sources if they are below the major source
threshold, which is unlikely).
Permitting authorities have the option of deferring nonmajor
sources (other than acid rain affected sources and municipal
waste incinerators) from the requirement to obtain a Title V
permit. With respect to nonmajor sources, this deferral
option will continue until EPA completes a rulemaking to
consider whether to continue to defer nonmajor sources for the
Title V program.
With respect to nonmajor sources subject to NSPS and NESHAP
promulgated after the date of the Part 70 promulgation,
however, EPA will make a case-by-case decision on whether the
standard should provide a deferral for nonmajor sources
affected by the NSPS or NESHAP.
3.3 "Synthetic Minors"
1. Do permitting authorities have the option of expanding the
applicability of Title V to synthetic minor sources (those
sources that would otherwise be considered major sources but
have taken a federally-enforceable restriction on their
potential to emit)?
Yes, a permitting authority can expand Title V applicability
to synthetic minor sources upon approval by EPA as part of the
Part 70 program.
3.4 Emissions Unit Coverage
3.5 Fugitive Emissions
3.6 Applicability Duration
1. Is a source required to remain a permitted Title V source if
its potential to emit falls below the applicable potential to
emit threshold? For example, if a source reduces its
potential to emit to less than 100 tons per year, is it still
in Title V?
A source is subject to Title V as long as it is a major source
based on the potential to emit of the entire source. Nonmajor
sources are also subject to Title V if a NESHAP or NSPS
applies to the source or if it is an affected source.
Permitting authorities have the option of exempting nonmajor
sources (except affected sources) until EPA takes rulemaking
action on the applicability of Part 70 to nonmajor sources.
After that action, nonmajor sources to which Part 70 becomes
applicable will be required to obtain Title V permits.
Assuming the permitting authority exempts nonmajor sources,
the requirement for a Title V permit would not apply to a
source with federally-enforceable restrictions that limit its
potential to emit to below the levels for a major source. (A
source that restricts its potential to emit in a Title V
permit, however, is still subject to Title V.) If a source's
restriction of its potential to emit makes it a nonmajor
source through a federally-enforceable mechanism other than a
Title V permit (e.g., a source-specific SIP) and it is not
otherwise subject to Title V, that source may avoid a Title V
permit as long as the restriction applies, even after it has
operated under a Title V permit. Even though a source is no
longer required to have a Title V operating permit, it must
still comply with all applicable requirements.
A source that already has a Title V permit may avoid other
requirements applicable to major sources, such as new MACT
standards, by taking a restriction on its potential to emit to
below the definition of "major" associated with those
requirements, e.g., restricting HAP emissions to below the
10/25 tpy definition for major HAP sources. The restriction
on potential to emit would have to be in the federally-
enforceable portion of the permit.
Permitted sources that limit their potential to emit to below
major source thresholds by making permanent physical
limitations (such as by dismantling a portion of their
facilities) can become nonmajor for Title V purposes without
having a federally-enforceable limitation of their potential
to emit.
The permitting authority always has approval authority over
any federally-enforceable restrictions that would cause a
source to become nonmajor, or over whether to include a source
in its permitting program if it becomes nonmajor.
If a source becomes nonmajor and the permitting authority no
longer requires it to have a Title V permit, the source still
must comply with its permit and all Title V requirements until
the federally-enforceable restrictions on its potential to
emit are in place or the permitting authority recognizes the
permanent physical limitations and releases it from the
requirement for a permit.
3.7 Section 112(r) Sources
3.8 Area HAP's Sources
3.9 Acid Rain Source Obligations
1. Are Title IV affected sources covered by Phase I exempt from
obtaining Title V permits from 1995-1999?
No. Section 70.3(b) expressly prohibits exempting affected
sources from Title V permitting requirements, even though EPA
will issue Phase I permits to affected sources for the Title
IV requirements for this time period.
2. If a Phase I source holds a Title IV permit, does it also have
to apply for a Title V permit?
Yes, since the Title IV permit addresses only Title IV
requirements. The source would have to apply to the
permitting authority for a Title V permit.
3.10 Non-Act Requirements
3.11 Radionuclide Sources
4.0 PROGRAM SUBMITTALS
4.1 Program Submittal Content
1. Does a State submittal have to include complete information on
local permitting authorities?
Yes. If local agencies have a role in implementing the State
program, their functions, structure, and staff must be
addressed in the program description and personnel and funding
statement in the same manner as they would be addressed for a
State agency. This includes a program description which
explains how the State intends to carry out its
responsibilities to implement a Part 70 program. The State
submittal must also include a personnel and funding statement
which describes the organization and structure of the agency
or agencies that will have responsibility for administering
the program, delineating the responsibilities of each,
including procedures for coordination and the designation of a
"lead agency" to facilitate communications between EPA and
other agencies if more than one agency has administrative
responsibility for the program. The statement must also
provide a description of the agency staff who will carry out
the State program, including the number, occupation, and
general duties of the employees.
If a local agency plans to administer its own program (and the
Governor agrees), the local agency will be treated by EPA as a
separate entity and will be required to provide the same
program description and documentation as a State. This
information could be submitted separately or with the State
submittal.
2. Can a permitting authority submit a program containing pending
regulations?
The program submittal must include "the regulations that
comprise the program and evidence of their procedurally
current adoption" [70.4(b)(2)]. The EPA cannot approve a
program that includes pending regulations. For purposes of
the acid rain program and certain requirements related to
implementation of section 112 of the Act, commitments to adopt
future program provisions may be allowed in determining
approvability of permit programs.
3. Are permitting authorities required to publish notice of the
development of their programs?
The EPA requires permitting authorities to show that their
program adoption was "procedurally correct," which means that
the permitting authority used procedures that are normal and
appropriate for adoption of similar regulations in that
agency. The EPA does not require notice if a permitting
authority typically adopts rules using a procedure that does
not employ a notice.
4. For purposes of program approval, does a permitting authority
have to give public notice on any aspect of its program other
than the permitting regulations?
The components of an operating permits program have to go
through the proper adoption procedures, whatever those
procedures are, prior to being submitted to EPA as part of the
operating permits program. For some program elements, State
or local procedures would require public notice. Otherwise,
no public notice is required. The EPA will make the entire
program available for public review in its approval process.
4.2 EPA Review of Program Submittals
1. Do existing State program elements have to be approved by EPA?
Yes, if they are to be included in a State's Part 70 program.
2. Will EPA accept portions of the operating permits program
prior to submittal of the complete program?
Yes, EPA can informally review program elements and notify
permitting authorities whether parts of their program appear
to be approvable. Formal approval, however, requires an
opportunity for, and consideration of, public comment on all
parts of the program.
3. Will EPA formally approve parts of a program?
Under section 502(d)(1) of the Act, EPA is required to approve
or disapprove a program within 1 year after receiving a
complete program submittal. Approval or disapproval will be
in terms of the whole program, not parts of a program. Under
section 502(g) of the Act, EPA may grant interim approval to a
program that substantially meets the requirements of Title V,
but is not fully approvable. Interim approval will also be in
terms of a whole program, not parts of a program.
4.3 Interim Approval
1. If a State legislature has not approved the authority to
collect sufficient fees, can the State program be granted
interim approval?
No. The ability to collect and retain sufficient permit fees
is a minimum requirement under section 70.4 for interim
approval as well as full approval. If a program is granted
interim approval for other reasons, the fees collected under
the interim approved program would have to cover the costs of
that program, the costs of making the changes needed before
the program can receive full approval, plus any other program
development costs.
4.4 Equivalent Program Elements
4.5 Attorney General's Opinion
4.6 Legal Authority
1. Timely delegation of NESHAP is important for smooth
implementation of the operating permits program. How quickly
must this transfer of NESHAP authority to permitting
authorities be?
The general requirement is that operating permits programs
must contain sufficient authority, or commitments to get
sufficient authority, to include all section 112 applicable
requirements in permits and assure compliance of the source
with all those requirements. Permitting programs must provide
that the permitting authority: (1) will not issue any permit
unless it would assure compliance with section 112 standards;
and (2) will reopen any major source permit that has 3 or more
years before it expires to incorporate any newly promulgated
section 112 standard(s).
As part of the Part 70 program approval process, EPA will
presume that a permitting authority will automatically
implement new section 112 requirements unless the permitting
authority advises EPA to the contrary. In effect, this
approach automatically delegates authority to implement future
section 112 standards. Alternatively, State or local law may
allow direct incorporation of Federal standards into a permit
without any interim steps to adopt standards as State or local
rules or to seek formal delegation of that standard from EPA.
This approach is obviously sufficient to meet the requirement
for authority to implement section 112 requirements. Either
of the preceding approaches should allow a permitting
authority to incorporate new section 112 standards into
permits as soon as EPA promulgates them.
A permitting authority may be legally required by State or
local law, however, to request delegation of section 112
requirements before incorporating these requirements into
permits. If so, the permitting authority must take the
appropriate actions necessary to obtain delegation prior to
issuing permits incorporating any requirements that rely on
that delegation. Whether this delegation process would delay
permit issuance will depend largely on when the permitting
authority initiates the request for delegation.
4.7 Partial Programs
4.8 Operational Flexibility
1. Which operational flexibility provisions is the permitting
authority required to include in its Part 70 program?
Permitting authorities must adopt operational flexibility
provisions found in sections 70.4(b)(12)(i) and (iii) of Part
70. Provision (i) requires permitting authorities to allow a
source to contravene a limited set of "section 502(b)(10)"
changes, such as changing to a different brand of complying
paint. Provision (iii) requires permitting authorities to
allow a source to set up permit terms that provide for
emissions trading to meet an independent emissions cap.
Allowing sources to trade increases and decreases in emissions
in the permitted facility [provided for in
section 70.4(b)(12)(ii)] is an optional element of a Part 70
program.
2. What regulatory authority do permitting authorities need for
providing general operational flexibility and emissions
trading within federally-enforceable caps?
The EPA knows of no special regulatory authority necessary for
allowing the two required forms of operational flexibility
(contravening certain permit terms and allowing emissions
trading around an independent emissions cap).
3. With respect to the 7-day advance notice for
section 502(b)(10) changes, or for making other changes to the
permit without a revision as provided under section
70.4(b)(12), can a permitting authority increase the number of
days for advance notification?
Yes. Section 70.4(b)(12) provides that a source must give at
least a 7-day advance notice of any change made pursuant to
section 502(b)(10). A time period greater than 7 days is
consistent with the general approach of Part 70 which sets
minimum standards which can be exceeded by permitting
authorities and with the plain language of section 502(b)(10),
which requires that notice be given "a minimum" of 7 days in
advance of the change.
4. Can a source install a new paint line with emissions of
39 tons per year under the 502(b)(10) changes?
No. This may be an off-permit change, but it is not a
section 502(b)(10) change because it does not contravene an
express permit term. It could be an off-permit change (if the
permitting authority allows such changes) if the permit did
not specifically address or disallow it, and it would be added
to the permit upon renewal. It presumptively also would
require a preconstruction review permit under a State minor
NSR program.
5. Can a source use the Title V provisions for changes without a
permit revision to avoid preconstruction review?
Absolutely not. Preconstruction review is an applicable
requirement, and nothing in Title V allows a source to avoid
the need to obtain a construction permit. Some opportunities
at the option of the permitting authority may exist for
sources to program certain alternative scenarios into their
Part 70 permit involving new or modified units, provided that
the applicable NSR requirements would be met per specific
conditions in the Part 70 permit. This, however, would not be
avoiding preconstruction review, but would be providing for
meeting the review requirements through another mechanism.
4.9 "Off Permit"
1. Is there any mechanism for prohibiting or enforcing against
off-permit changes?
Under Part 70.4(b)(14), permitting authorities may prohibit
off permit changes as a matter of State or local law. The EPA
will not enforce such prohibitions, unless they are required
by an applicable requirement of the Act. Off-permit changes
must, of course, comply with all applicable requirements.
4.10 Transition Plan
1. How could permitting authorities make completeness
determinations within 60 days if a landslide of applications
are received one year after program approval?
Permitting authorities are encouraged to plan resources and
anticipate the greater workload that will come during the
initial submission of permit applications. They should also
take reasonable measures to phase in the applications during
the first year after EPA approves their programs. They can
also consider requiring applications prior to program approval
since all legal authorities and program provisions should have
been adopted prior to program submittal to EPA, although this
is not encouraged where significant issues appear outstanding
with the approvability of the program submitted to EPA.
2. Can permitting authorities establish regulations and start
issuing permits before their programs are approved? Will
those permits be valid once the program is approved?
No. Permitting authorities cannot issue Title V permits
before such time as EPA has approved the permit program
(partial, interim, or full approval). Permits issued by a
permitting authority under its own permit rules are not Title
V permits and would have to be reissued after program approval
to be valid for purposes of Title V. The primary reasons for
this approach is that EPA has no authority to object to a
State or local permit, and citizens have no opportunity to
petition the Administrator to object or to file suit in
Federal court for the Administrator to object to such permits.
However, EPA encourages constructive use of the period before
program approval. For example, the permitting authority may
require that some permit applications be submitted before
EPA's approval of the program. The permitting authority could
then get a head start on reviewing applications so that at
least 1/3 of the permits could be issued in the first year
after program approval as required by Title V.
4.11 Judicial Review
1. Can a final permit be challenged in Federal court after State
judicial appeals have been exhausted? Specifically, can a
permittee seek relief in Federal court for terms of a permit
which it feels are inconsistent with the requirements of the
Act, such as approved State or local requirements?
Federal judicial review is available where EPA denies a
petition to object to the issuance of a permit. The permittee
(or anyone else) must petition the Administrator to object to
the permit within the time period outlined in section 70.8(d)
[generally within 60 days of the expiration of the
Administrator's 45-day review period]. Also, the petition
must be based only on objections to the permit that were
raised with reasonable specificity during the public comment
period, unless the petitioner demonstrates that it was
impracticable to raise such objections during that time or the
grounds for objection arose after the period. If the
Administrator fails to object to the permit, then the denial
of the petition to object is subject to judicial review in
Federal court under section 307 of the Act. The Federal court
would then consider whether EPA fulfilled its obligation under
section 505(b)(2) to object to the issuance of a permit if the
permit is not in compliance with the requirements of the Act,
including the requirements of the applicable implementation
plan.
4.12 Implementation Agreements
1. When should the implementation agreement (IA) be submitted?
The May 10, 1991, proposal preamble indicated that the IA
should be submitted when the permit program is submitted.
While it is strongly encouraged, the IA is not required under
Part 70 as part of the program. In response to workload
concerns expressed by permitting authorities, EPA considers a
reasonable goal for the IA to be signature by both parties by
the time of permit program approval or shortly thereafter.
Thus, the IA need not be submitted with the permit program.
2. Is a signed IA needed for program approval?
No. An IA is not a mandatory part of the operating permits
program. The existence of an IA will define the various roles
of EPA and of the permitting authority in implementing the
program, but will not contain substantive issues such as
regulatory interpretation. Accordingly, the IA will be
available to the public through EPA or the permitting
authority but will not be in the EPA docket or be subject to
public comment. Program approval will not depend on a signed
IA. The EPA will work with permitting authorities toward IA
signature by the time EPA approves the program.
3. Can the IA be modified while the program is being reviewed?
The IA may be revised at any time upon mutual consent of the
permitting authority and the EPA Regional Office.
5.0 PERMIT APPLICATIONS
5.1 Application Content
1. Will EPA provide a standard application form?
Permitting authorities are responsible for developing their
own forms to meet the minimum requirements of section 70.5(c).
The EPA intends to develop a sample application form for data
management and Part 71 purposes and make it available for
permitting authorities to review. As with model permits,
permitting authorities have discretion in choosing whether to
use the EPA form.
5.2 Timely and Complete Submittal
1. Do sources lose their ability to get an application shield if
they fail to meet the application submittal deadline in the
program? What if that deadline is earlier than the EPA
application deadline?
Sources must submit their applications by the application
deadline set in the approved program to have their
applications deemed timely and to have a chance at getting an
application shield. If the deadline is missed, no application
shield is possible. The deadline in the approved program
supersedes EPA's deadlines in Part 70.
2. Some permitting authorities have previously assisted sources
in completing their permit applications. Is it acceptable for
the permitting authority to complete certain aspects of a
source's application as long as the required information is
available in the proposed permit? If the permitting authority
were to fill out these portions of the application, would the
source be shielded?
The permitting authority retains reasonable flexibility to
work with sources in completing applications, so long as the
18-month deadline for issuance or timely renewal is not
jeopardized. If an application is submitted in a timely
fashion and deemed complete enough to process, the source is
shielded from enforcement action for operating without a
permit, even though the permitting authority would be adding
material to the application. In the situation where the
permitting authority adds significant information to the
application, the completed application may have to be returned
to the source for certification. Upon certification, the
application would be deemed submitted and complete and the
shield would take effect. It would be critical for the
permitting authority to inform the source if it were not
meeting an applicable requirement so a schedule of compliance
could be prepared.
3. Can a permitting authority establish a 90-day period for
determining whether a source application is complete?
No. The completeness determination must be made within 60
days in accordance with sections 70.5(a)(2) and 70.7(a)(4).
5.3 Application Review
5.4 Insignificant Activities
1. Is there a de minimis level of emissions that does not require
reporting in the permit application?
Yes, but these will be set by permitting agencies in their
permit programs as approved by EPA. Under section 70.5(c),
permitting authorities are given discretion to exempt
insignificant activities on the basis of de minimis thresholds
(such as size, emission levels, or production). Permitting
authorities may also develop other criteria for exempting
source activities from detailed description in the
application. If exempted due to size, emissions levels, or
production rate, the application must contain a list
identifying how many activities or units are exempt because
they are below the threshold. If the exemptions apply to
entire source categories, then no information is required in
the application on the exempted units. Emissions of a
pollutant in a "major" amount can never be considered de
minimis.
2. May a permitting authority exempt activities as insignificant
if those activities are subject to applicable requirements?
In all cases the permitting authority must, at a minimum,
require information in permit applications sufficient to
determine the applicability of, and to impose, all applicable
requirements of the Act and to confirm that no other
requirements of the Act apply to the source. Exemptions for
activities that are potentially subject to applicable
requirements would clearly impede the permitting authority's
ability to determine all applicable requirements in the
permitting process. Such exemptions would not be approvable.
The EPA will examine each permitting authority's criteria as
part of the program approval process to ensure that the
permitting authority's insignificant activity provisions do
not exempt any activities or units from applicable
requirements or fees.
3. If a permitting authority has EPA-approved insignificant
activity levels for permit application purposes, can it use
the insignificant levels to disregard emissions when it
determines if a source is major?
No. All emissions must be considered in determining a
source's potential to emit and whether it is major. The
provision for insignificant activities or emissions levels is
only in terms of what must be included in a permit
application, not for purposes of determining if a source is
major. Exemptions cannot be used by a source if doing so
would interfere with the imposition of applicable
requirements, applicability determinations, or the calculation
of fees.
4. Will EPA approve exemptions for insignificant activities if
those activities are currently exempted from requirements
under current permitting programs?
The EPA may approve exemptions for insignificant activities if
it determines that the activities exempted meet the test of
being de minimis, that is, if requiring those activities to be
included in the application would yield a gain of trivial or
no value. In addition, section 70.5(c) provides that a
permitting authority must require in permit applications all
information necessary to determine the applicability of, and
to impose, all applicable requirements. The EPA will follow
these principles in evaluating proposed exemptions for
insignificant activities. In determining whether an activity
is insignificant, EPA will consider whether the activity has
previously been exempted from permitting requirements.
However, a prior practice of exemption will not in itself be
viewed as controlling, but instead will be merely one factor
considered by EPA.
5.5 Emissions Reporting
1. Must all emissions of regulated air pollutants, even those
that do not make the source subject to Title V, be contained
in a Title V permit application?
Yes. All emissions of regulated pollutants must be described
in permit applications, whether those emissions caused the
source to be major or not. Emissions of regulated pollutants
from all units at a major source must be described, except for
units exempted under the operating permits program as
insignificant.
5.6 Confidential Information
1. If State law prevents the transmittal of confidential business
information from the permitting authority to EPA, how can such
information be submitted to EPA?
The permitting authority may require the source to submit the
information directly to EPA, if the permitting authority
cannot or does not do so itself. Regulations under 40 CFR
Part 2 govern the handling of confidential information by EPA.
5.7 Compliance Plans
1. What happens if there is a disagreement between the permitting
authority and the applicant over compliance plans?
Typically, the permitting authority will attempt to negotiate
a compliance plan with the permittee. Many States have an
appeals process involving a governing board or commissioners
that help resolve disagreements. If this process fails and if
a source submits an unacceptable compliance schedule, the
permitting authority may deny the permit. Alternatively, the
permitting authority may issue a permit with a compliance
schedule with which the source does not agree. The source
would then have the option of challenging the compliance
schedule in State court.
5.8 Certification of Truth, etc.
5.9 Cross-Referencing
6.0 PERMIT CONTENT
6.1 General Permit Content
1. Must the SIP-approved emissions rate be included in the
permit, or is a Control Technology Guideline reasonably
available control technology limit sufficient?
The SIP-approved emissions rate is the applicable requirement
and must be included in the permit.
2. What is a severability clause?
The severability clause is a provision that allows the rest of
the permit to be enforceable when a part of the permit is
judged illegal or void.
6.2 Equivalency Determination
6.3 Federal Enforceability
1. What are the limits on the additional requirements that a
permitting authority can impose on a source in the non-
federally-enforceable portion of the permit?
A permitting authority is free to add any "State-only"
requirements to the extent allowed by State or local law.
However, the permitting authority is also responsible for
enforcing the federally-enforceably portion of the permit and
EPA will exercise its enforcement oversight with regard to
those terms and conditions.
2. If a facility takes a tighter limit to create emission
credits, how is the new limit made federally enforceable?
The new limit is made federally enforceable by placing it in
the federally-enforceable part of the Title V permit, along
with appropriate compliance terms (e.g., monitoring,
reporting, and recordkeeping).
3. What is the mechanism to change or reverse "State-only"
conditions that became federally enforceable back to "State-
only" status?
The mechanism for changing the designation from federally
enforceable to "State-only" is the minor permit modification
process. These changes, if "State-only," should not involve
applicable requirements and could be removed from the
federally-enforceable portion of the permit as long as none of
the restrictions on minor permit modifications in section
70.7(e)(2)(i)(A) are violated. If any of the restrictions in
section 70.7(e)(2)(i)(A) are violated, then the permit would
have to undergo a significant modification to remove the
conditions from the federally-enforceable part of the permit.
6.4 Compliance Certification
1. Must a source submit a new compliance certification annually
after submittal of initial certification in the permit
application?
Yes. Certification of compliance with permit terms must be
submitted annually or at such shorter intervals as may be
required by the permitting authority.
6.5 Monitoring, Recordkeeping, Reporting
1. Do all monitoring reports have to be certified?
Yes. Section 70.6(c)(1) provides that any report required by
a permit must be certified.
2. Must each permit contain testing, monitoring, reporting, and
recordkeeping requirements sufficient to assure compliance?
Yes. Section 70.6(a)(3) requires that each part 70 source
have testing, monitoring, reporting, and recordkeeping
requirements sufficient to assure compliance with the terms
and conditions of its permit. If the source is subject to any
underlying monitoring, testing, reporting, and recordkeeping
requirements (such as requirements contained in the SIP or
NSPS), these requirements must be in the source's permit.
Regardless of the underlying requirements, sources must retain
records for five years, report the results of all monitoring
data (not just excess emissions) at least semi-annually, and
promptly report deviations.
Additionally, permits must require periodic monitoring or
testing. In situations where there are no underlying
monitoring or testing requirements, or where those
requirements are not periodic, the permitting authority will
be required to "gap fill" and include periodic monitoring and
testing requirements in the operating permit. This periodic
monitoring or testing must be sufficient to yield reliable
data that is representative of compliance.
In accordance with a statement in the preamble of the
operating permit rule (57 FR 32278), the EPA is currently
developing guidance that sets forth criteria for determining
what constitutes periodic monitoring or testing. This applies
similarly to situations where a source is subject to a work
practice standard. The permit would need to contain some
means of periodically monitoring compliance with the work
practice requirement. In such cases, and depending on the
particular standard, periodic recordkeeping may be sufficient
to satisfy the periodic monitoring or testing requirement.
The permit would require these records to be kept for five
years, require at least semi-annual reporting (and prompt
reporting of deviations), and specify the means for
determining compliance with work practice standards.
3. Does a source have to submit raw data on monitoring/testing as
part of its monitoring report?
No. The permittee is not required to submit raw data, but is
required to keep required monitoring data and support
information. Support information includes all calibration and
maintenance records for continuous monitoring, and copies of
all reports required by the permit. Reports are required to
contain the results of the monitoring required in the permit.
This issue will be dealt with in greater detail in monitoring
guidance EPA will be providing at a later date.
4. When does the 5-year period for retaining records start?
Records must be kept for five years from the time they are
generated.
5. Must voluntary testing results be kept for a five-year period?
No. Only results from required tests must be kept for
5 years.
6. Must test results be kept at the plant, or can they be kept at
a central location?
It is preferable for records to be kept at the plant, but they
can be kept at a central location provided that inspectors
have easy access to the data.
6.6 Inspection Provisions
1. What inspection requirements must be included in permits?
Section 70.6(c) requires all part 70 permits to contain
inspection and entry requirements that require, upon
presentation of credentials and other documents as may be
required by law, the permittee to allow the permitting
authority or an authorized representative to: (a) enter upon
the premises where a part 70 source is located or emissions-
related activity is conducted, or where records must be kept
under the conditions of the permit; (b) have access to and
copy, at reasonable times, any records that must be kept under
the conditions of the permit; (c) inspect at reasonable times
any facilities, equipment, practices, or operations required
under the permit; and (d) sample or monitor at reasonable
times substances and parameters for the purpose of assuring
compliance with the permit or applicable requirements. [See
70.6(c)(2)]
2. Are State or local inspectors required to give notice of
inspection and entry before they arrive?
No. Section 70.6(c) provides that the permittee shall allow
the permitting authority or an authorized representative, upon
presentation of credentials and other documents, to enter upon
the premises and, at reasonable times, to have access to and
copy any records and conduct any inspections of facilities,
equipment, practices, or operations that are regulated or
required under the permit. Unannounced inspections should be
part of any compliance monitoring or tracking program.
6.7 General Permits
1. Can a general permit be incorporated into a larger permit?
Yes. Examples of general permits that might be incorporated
would include those for small boilers, degreasers, and storage
tanks that are part of a larger facility.
2. When general permits cover emission units at a facility that
has an overall Title V permit, how are the permits related?
The facility-specific permit should identify all units covered
by general permits and cross-reference the general permits by
number or source category.
3. Can a major source be permitted under a general permit?
Yes.
4. Will sources that get general permits be subject to monitoring
and reporting requirements on a specific pollutant basis? In
other words, will a source that emits VOC's and gets a general
permit be required to report by species (e.g., separate
information for toluene, benzene, etc.)?
Whether a source gets a general or an individual permit does
not affect the monitoring and reporting requirements to which
it is subject. The permit, general or individual, must meet
all requirements of section 70.6(a) and (c) regarding
compliance provisions (monitoring, reporting, recordkeeping
and compliance certification). Applicable requirements that
control VOC emissions do not require the reporting of separate
species, while requirements under section 112 almost certainly
will require reporting by certain species.
5. Can a general permit be modified?
General permits cannot be modified to accommodate individual
source changes the way individual permits can be. General
permits may include alternate scenarios, but source-by-source
modifications are best handled by individual permits.
6. Can some units at a facility get a general permit after a
Title V permit for the facility is issued, or must coverage
under the general permit be established by the time the Title
V permit is issued?
There is no reason why units could not be permitted under a
general permit instead of a Title V permit, provided they
qualify for the general permit. If they are part of a larger
facility which already has a Title V permit, that permit would
need to go through a significant modification, renewal, or
reopening to remove those units, and during the process it
would have to be indicated that those units are being covered
by the general permit.
7. If a source is covered by a Title V permit, but some units are
covered by a general permit, how do renewals work? Does the
general permit renew at the expiration of the Title V permit
or on the renewal cycle of the general permit?
A general permit can have only one renewal date and all
sources covered by the general permit would get a permit
renewal at that date. If a Title V source wants all units
within its facility to undergo permit renewal on the same
date, the units covered by the general permit can be removed
from the general permit and added to the Title V permit.
Another approach is for the permitting authority to set the
renewal date of the general permit to be the same as the
renewal date for the Title V source; however, this might cause
other sources covered by the general permit to object.
Alternatively, the permitting authority could write a general
permit to cover only the units within the Title V source and
set its renewal date to be the same as the renewal for the
Title V source.
6.8 Permit Shield
1. Can a permit shield apply to requirements that do not apply to
the source?
Yes, but section 70.6(f)(1)(ii) requires the permit to include
a statement that the requirement(s) does not apply and why.
2. How extensively must a permit document that a requirement is
"non-applicable" for purposes of the permit shield?
The permit must expressly state that a requirement does not
apply and must include a determination by the permitting
authority as to why the requirement does not apply. One
purpose of this documentation is to focus public comment on
the source's exemption or nonapplicability to a given
requirement. The application should explain why the source is
eligible for any exemption provided by the applicable
requirement and address any specific exemption criteria
contained in the requirement. For example, the application
could state that the source is not subject to an NSPS because
it was built prior to the date on which the NSPS took effect.
3. If a Title V permit is in place and the area becomes
reclassified to nonattainment, is the source shielded until
permit renewal?
If the permit provides a shield, the source is shielded to the
limits of the shield until the permitting authority changes
the shield. The source is never shielded from direct
enforcement of newly applicable requirements adopted during
the term of the permit. For example, if the State adopted a
new SIP requirement necessary to bring the area back into
attainment and EPA approved the SIP revision, the source would
not be shielded from the new SIP requirement.
4. If an operating permit reflects an old SIP provision that has
been replaced by a new SIP provision, is the source shielded
from enforcement for failure to meet the new SIP provision?
No. The source may be shielded only from enforcement arising
from provisions existing at the time of permit issuance. The
source must comply with the new provision even if it is not in
the permit.
6.9 Alternative Scenarios
1. What type of recordkeeping is required for alternative
scenarios?
The same type of recordkeeping that is required for other
emission limits in the permit. Each alternative operating
scenario in a permit must satisfy the compliance requirements
of section 70.6. In addition, the source must keep records of
the scenario under which the source is operating at any given
time.
6.10 Emergency Defense/Updates
6.11 Noncomplying Sources
1. Can noncomplying sources apply for and obtain a general
permit?
Yes. However, to the extent the source will be subject to a
source-specific schedule of compliance, general permits would
not be appropriate. This schedule of compliance must contain
a series of remedial measures with milestones for coming into
compliance expeditiously. If the compliance schedule applies
generically to all sources in a source category, general
permits could be used.
6.12 Model Permits
6.13 Emissions Trading
1. Can a facility obtain emission increases under emissions
trading provisions beyond those that an applicable requirement
(i.e., NSPS) allows?
No.
2. Can a facility use the Title V emissions trading provisions to
continue to operate when compliance with a MACT standard would
be economically unfeasible?
No. Title V may not authorize a variance from any applicable
requirement such as MACT.
7.0 PERMIT PROCESSING
7.1 General Process
7.2 Administrative Amendments
1. Part 70 allows processing of NSR permits as administrative
amendments if the NSR program is "enhanced." Can this
enhancement occur on a permit-by-permit basis?
Yes. NSR enhancement can occur for all NSR permits or on a
permit-by-permit basis.
2. Can PSD requirements be incorporated into a Title V permit
through an administrative permit amendment?
Yes. Any term or condition of a preconstruction review permit
(such as PSD) can be incorporated into a Title V permit as an
administrative permit amendment, if the "enhanced"
preconstruction review program provides for: (1) review
procedures "substantially equivalent" to Part 70 procedures
(e.g., review by the public, affected States, and EPA); and
(2) for compliance requirements substantially equivalent to
the compliance requirements of Part 70.
3. Can an ownership change be made through an administrative
amendment?
Yes, provided that the permitting authority determines that no
other change to the permit is necessary, and provided that a
written agreement containing a specific date for transfer of
permit responsibility, coverage, and liability between the
current and new owners has been submitted.
7.3 Minor Modifications
1. Can a minor permit modification be used to modify a federally-
enforceable limitation on a source's potential to emit?
No. This is prohibited by criterion number (4)(A) in
section 70.7(e)(2)(i)(A).
2. Can a permitting authority require public review to be part of
minor permit modification procedures?
Yes. Although operating permits programs are required to
provide for an expeditious modification process, permitting
authorities do have the discretion to require more stringent
procedures including providing additional review for some or
all minor permit modifications.
3. If a source submits a minor permit modification request and it
is later determined that the modification is actually a
significant modification, when does the violation period
begin--at the time that the minor permit modification is
approved, or when the decision that it is a significant
modification is made?
Under the procedures set forth in section 70.7(e)(2) and (3),
the violation period begins when the permitting authority
determines that the change should have been a significant
modification. Consistent with the ability to establish more
stringent modification procedures, permitting authorities may
establish an earlier date by which they would consider the
violation to have begun.
7.4 Significant Modifications
7.5 Application Shield
7.6 Public Participation
1. During the issuance process, can a permitting authority give
notice to EPA, affected States, and the public simultaneously?
Yes, provided EPA has a reasonable opportunity to review any
comments received from the public or affected States. The
minimum public comment period is 30 days and the EPA review
period is 45 days. This would only allow EPA 15 days
additional review after public and affected State review,
assuming the permitting authority does not provide for a
longer public comment period. Fifteen days may not be
sufficient depending on the complexity of the permit. To
provide for a longer EPA period for reviewing the results of
public comment, the permitting authority could vary the
beginning of EPA's review resulting in less overlap of EPA and
public review where more EPA review after public comment would
likely be needed.
2. Can a permitting authority provide opportunity for public
comment and notice of the public hearing in the same notice?
Yes; however, the public hearing must be scheduled at least 30
days after public notice.
3. Can a person in one State comment on a permit in another
State?
Yes. Anyone may comment, regardless of residency.
4. Can a permitting authority establish different public notice
periods for different types of changes?
Yes, but the minimum notice periods specified in Part 70 must
be met.
7.7 Renewals
7.8 Reopenings
1. Title V permits must include all applicable requirements of
the Act. When must a newly promulgated NESHAP be incorporated
into the Title V permit?
It must be incorporated into the permit at least at renewal
time, even if the compliance date is in the future. In
addition, a permit may need to be reopened earlier, depending
on the compliance date specified in the NESHAP and the amount
of time left to run on the permit term [see section 502(b)(9)
of the Act regarding reopening of major source permits with
three or more years remaining on their terms]. If the NESHAP
is promulgated while a draft permit is being processed, the
permitting authority must revise the permit to include the new
requirements prior to issuance.
2. If a permit is reopened, is public participation required?
Yes, public participation is required for all permit
reopenings.
3. If a permit is reopened, is the entire permit reviewed, or
only those provisions that caused the permit to be reopened?
The review need cover only those provisions that caused the
permit to be reopened or that are affected by it.
4. When a permit has been reopened, when does the new permit take
effect?
The permit is effective upon issuance, just as for any permit
issuance, renewal, or significant modification. The old
permit terms remain in effect until the reopening process is
completed (i.e., the revised permit is issued).
7.9 Title I Modifications
7.10 Permit Denial
7.11 Temporary Sources
8.0 PERMIT REVIEW
8.1 EPA Review
1. How will EPA review the reopening of a permit when that
reopening is in response to an earlier EPA objection?
The EPA will focus on the adequacy of the applicant's response
to EPA's objections and any other parts of the permit affected
by the changes.
8.2 Affected State Review
1. Should notice to affected States be given to the State or to a
local agency (e.g., district)?
Notice should at least go to the State. Upon agreement with
affected States, notice may also be provided to local
agencies.
2. When the border between two States falls in the middle of one
of the Great Lakes, must a notice of a draft permit for a
source which is within 50 miles of the border be sent to the
other State for review by affected States as required in
70.8?
Yes. The neighboring State would be considered an "affected
State" because the air at the border (over the Lake) is
considered part of the State's "ambient air." The neighboring
State is entitled to review the permit.
8.3 Public Participation
1. Must the permitting authority hold the permit for 60 days in
response to a citizen's petition, or can it issue the permit?
The permitting authority can issue the permit at the end of
EPA's 45-day review. At the end of EPA's review period,
citizens can petition EPA to object to a permit. If EPA does
not object, the citizens can then go to Federal court.
Citizen petitions do not stay a permit that has been issued.
8.4 Data Management
9.0 PERMIT FEES
9.1 Presumptive Minimum Program Cost
9.2 Fee Demonstration
1. Are there any restrictions on how permitting authorities
design their fee structure?
In general, permitting authorities may design their fee
programs as they see fit in accordance with State or local
law. The restrictions imposed by Title V are that sufficient
fee revenue must be collected to fund the direct and indirect
permit program costs and that required Title V activities be
funded solely through permit fees from sources subject to the
permitting program.
2. How often are permit fees calculated? Are they recalculated
when there is a permit modification or renewal?
This is a matter left to the permitting authorities. They may
recalculate fees annually or whenever new emission inventories
are available. Or, they may choose to impose fees based on
processing costs for applications, permit modifications,
and/or renewals.
3. Does EPA have to review every update in a permit program fee
schedule (i.e., how and from what sources fees are collected)?
In general, no. An accounting will be required, however, if a
permitting authority makes a significant change in the fee
structure. The implementation agreement would be one means of
delineating the standard for determining whether a change in
the fee structure is significant enough to warrant EPA review
and approval. Insignificant changes (such as CPI adjustments)
can be made without EPA review.
4. Can the fee program be approved before the rest of the permit
program?
No. The EPA will grant approval only to the entire program.
Permitting authorities that want informal review of their fee
programs are encouraged to submit these to the Regional
Offices prior to the full program submittal and may get
informal EPA approval.
9.3 Funded Program Costs
1. Must a permitting authority collect enough permit fee revenue
to cover the entire cost of its pollution control program for
stationary sources?
Only the direct and indirect costs of operating permit program
activities [including activities specifically listed in
Section 502(b)(3)(A)] must be recovered through permit fees.
The Act and regulations do not provide an exhaustive list of
direct and indirect costs that must be recouped through permit
fees. The way the permitting authority's program is designed
will determine the extent to which activities are related to
the operating permit program and must be covered by permit
fees.
2. Can a permitting authority use permit fees to fund its entire
air program?
The Act does not prohibit a permitting authority from
assessing fees in addition to those required by the Act and
using those additional fees for purposes other than supporting
the permit program. However, permit fees collected for the
purpose of funding required operating permit program
activities cannot be used for other air program activities.
Permitting authorities must also provide EPA with periodic
accountings that demonstrate that all of the costs of required
activities under Part 70 are paid for solely by permit fees.
3. Must permit fees be sufficient to cover the cost of pollution
prevention programs applicable to a source?
Such costs would not be required permit program costs unless
the requirements were applicable requirements (e.g., contained
in the approved SIP) or otherwise directly incurred in the
permitting program. Few, if any, pollution prevention
programs are currently applicable requirements.
4. Can court costs to a permitting authority for defending legal
challenges to a permit (e.g., by a third party or the
permittee) be covered by Title V fees?
Yes. A legal challenge to a permit issued by the permitting
authority is part of the permit issuance process. Therefore,
costs to the permitting authority associated with the legal
challenge are required to be covered by permit fees.
5. Do the Part 70 regulations prohibit States from allocating
Title V permit fees to another State agency?
States may allocate permit fees to other State (or local)
agencies responsible for, or providing support for, some part
of the permit program. The State must provide permit fee
revenue to the other agency sufficient to cover its costs of
implementing or supporting the part of the program for which
it is responsible.
6. What are indirect costs?
The term is not defined in the Act, and the line between
direct and indirect costs is sometimes difficult to draw.
Because both direct and indirect costs must be covered by
permit fees, the distinction between them is not important.
Some examples of indirect costs are the costs of
administration and technical support (such as managerial
costs, secretarial/clerical costs, labor indirect costs,
copying costs, contracted services, accounting and billing)
and overhead.
9.4 Fee Schedule
1. How should a local program design its permit fee structure
when one or two sources would contribute 50 percent of the
fees? What would happen if these sources moved out of the
local program's jurisdiction? Should the program's fee
structure be changed?
Adequate fees are required to support the program regardless
of the particular situation. The permitting authority has
broad discretion to design its fee structure as it deems
appropriate, as long as the goal of program support is
achieved. Fee structures can be redesigned any time the
program needs change.
2. Can a permitting authority use fees from mobile sources to
support the Part 70 program?
No. All of the required costs of the Part 70 program must be
funded through permit fees solely from sources subject to the
operating permit program.
3. Can permitting authorities collect permit fees from a source
for the emissions which exceed 4000 tpy?
Yes. The 4000 tpy figure is an optional limit in the
methodology for determining the presumptive minimum program
cost. The Act and regulations do not address whether
permitting authorities should use 4000 tpy as a cap in their
fee schedules.
4. Can a permitting authority charge permit fees for any air
pollutant?
Yes, the Act and regulations do not govern on what emissions a
permitting authority may base its fee schedule. Permitting
authorities can impose fees on any emissions consistent with
State or local law. However, for purposes of a permitting
authority using the $25/tpy (CPI adjusted) presumptive minimum
program cost method, the permitting authority must base its
calculations solely on emissions of "regulated pollutants (for
presumptive fee calculation)" as defined in section 70.2.
5. Can a permitting authority base its permit fees on allowable
emissions instead of actual emissions?
Yes. The Act or Part 70 does not prescribe any specific
method by which permitting authorities must impose fees. A
permitting authority may calculate fees differently for
different classes or categories of Part 70 sources and for
different pollutants (provided the total of fees collected is
sufficient to meet the program costs). A permitting authority
can use application fees, service-based fees, emissions fees
based on either actual or allowable emissions, other types of
fees, or any combination thereof. Part 70, however, requires
actual emissions to be used as the basis for calculating the
presumptive minimum program costs.
6. Can a permitting authority charge permit fees for sources that
are not subject to any emissions limits?
Yes. For example, major sources must be permitted, even
though some are not subject to emissions limits (e.g., major
sources of HAP's for which no MACT standard has yet been
issued). These sources can be charged permit fees because
they are subject to the program.
7. If a permitting authority shows EPA that its fees are more
than $25/tpy (adjusted) does it have to charge fees on a per
ton basis?
No. The $25/tpy (CPI adjusted) figure is merely a mechanism
for estimating the presumptive minimum program cost. If
collected permit fees in the aggregate meet or exceed the
presumptive minimum program cost, the permitting authority can
design its fee schedule as it sees fit.
8. Can permitting authorities charge lower fees for sources in
attainment areas?
Yes, provided the fee structure results in collecting fee
revenue sufficient to fund the Part 70 program.
9.5 Small Business Program Funding
9.6 Phase I Source Fee Exemption
1. In what cases are acid rain sources exempt from the Title V
permit fee provisions during Phase I of the Acid Rain Program?
Section 408(c)(4) of the Act provides that "during the years
1995 through 1999 inclusive, no fee shall be required to be
paid under section 502(b)(3) or under section 110(a)(2)(L)
with respect to emissions from any unit which is an affected
unit under section 404." This means that permitting
authorities may not use emissions-based fees from affected
units under section 404 for any purpose related to the
approval of their operating permits programs for the period
from 1995 through 1999. However, before 1995 and after 1999,
permitting authorities may collect and use emissions-based
fees to support their program. Permitting authorities are
also free to collect application fees and other non-emissions-
based fees from all affected sources during Phase I and Phase
II.
Units exempted from fees pursuant to 408(c)(4) would include
any Phase I affected units (listed in Table A of Title IV) and
any substitution units. The EPA is examining the issue of
whether compensating units (under a reduced utilization plan)
are entitled to the fee exemption.
Finally, opt-in units under section 410 of the Act are not
entitled to the fee exemption of section 408(c)(4). (Opt-in
units include industrial sources of sulfur dioxide (SO2) and
any existing utility units serving generators smaller than 25
MWe.)
10.0 FEDERAL OVERSIGHT AND SANCTIONS
(No questions in this section at this time) 11.0 ENFORCEMENT AUTHORITY
11.1 Enforcement Authority
11.2 Criminal Authority
1. Are corporations or individuals criminally liable for false
statements, certifications, or representations?
Pursuant to sections 302(e), 502(a), and 70.11, both could be
liable depending upon the facts of the particular case. If an
individual (i.e., the responsible official) has control and
authority over the business of the source, and that
individual's actions and conduct result in a violation of the
permit program, then that person could be held individually
liable.
2. If a source certifies noncompliance as required and then
continues to operate, is this a knowing violation subject to
criminal liability?
The EPA will exercise prosecutorial discretion to reserve
criminal enforcement for egregious cases. If the source
negotiates with EPA or the permitting authority in good faith
and agrees to an expeditious compliance schedule, then EPA and
the permitting authority will probably pursue the violation as
a civil enforcement action.
3. If a municipality does not have adequate criminal enforcement
authority, how can it get program approval?
To receive program approval, a local agency must have the
ability to fine sources. The ability to refer enforcement to
a State prosecutor is one method of achieving such authority.
12.0 PROGRAM INTERFACE
12.1 SIP
1. Can a permitting authority enforce a Federal Implementation
Plan (FIP) requirement in a Title V permit?
To get approval, operating permits programs must have
authority to include FIP requirements in the permit, and to
enforce any permit terms.
2. Can a source use the Title V off-permit provisions (changes
not addressed or prohibited by the permit and not subject to
Title IV provisions or are not a Title I modification) to
avoid a SIP requirement?
No. An express condition for off-permit changes is that they
may not violate applicable requirements. Sources have no
permit shield with respect to off-permit changes, so either
EPA, the permitting authority, or citizens may enforce any
requirements of the Act that would apply to the off-permit
activity. State Implementation Plan requirements are
applicable requirements, and a source may not use the off-
permit provisions to violate them.
3. Can a permitting authority use its SIP to restrict the use of
alternative operating scenarios in a Title V permit?
Yes, any alternative scenario has to comply with both the SIP
and all other applicable requirements, so it can be used only
to the extent that it does not violate a SIP requirement.
4. In the past, primarily the SIP was the means for the
implementation, maintenance, and enforcement of measures
needed to attain and maintain NAAQS. What will the role of
the SIP be after the implementation of Title V?
SIP's are still the plan for achieving the NAAQS and the means
of translating the NAAQS into source emission limits. Such
limits are required to be placed into permits. The permit may
not violate a SIP, but the permit may set equivalent limits or
engage in emissions trading to the extent that the SIP allows
the permit to do so. SIP's are independently enforceable,
unless a valid permit shield exists (i.e., section 504(f) of
the Act states that compliance with the permit is deemed to be
compliance with all applicable requirements of the Act,
provided that the permit includes those requirements or the
permit states that other provisions are not applicable to the
source, which it would if properly issued). New SIP
requirements (i.e., those adopted after permit issuance) may
not be shielded.
12.2 Section 112
12.3 New Source Review
1. Are BACT and Lowest Achievable Emission Rate (LAER)
requirements under the SIP federally enforceable?
Yes. A BACT or LAER provision is a case-by-case determination
that is contained in a pre-construction permit under Title I.
They are applicable requirements and as such are federally
enforceable.
2. How can permitting authorities ensure that requirements they
have placed in NSR permits are not compromised in the Title V
permit? For example, can a Title V permit employ alternate
scenarios (or operational flexibility provisions) that avoid
the need to undergo State NSR review? How can a permitting
authority ensure that Title V permits enforce NSR conditions?
All terms and conditions of preconstruction permits are
applicable requirements for purposes of Title V and must be
placed in Title V permits. Alternate scenarios are provisions
to allow flexibility in meeting applicable requirements, not
violating them. State NSR provisions are not changed and
cannot be avoided merely by issuing Title V permits.
Permitting authorities concerned about sources avoiding NSR
may place a condition in their Title V permits that alerts the
source of its duty to apply for a NSR permit if certain
changes are made.
3. Can Title V permit revisions change previous NSR conditions?
No. Title V permits cannot, in general, change a requirement
of an NSR permit. The Part 70 permit revision process,
however, may suffice for making a change when the NSR and Part
70 programs are integrated.
4. Can a permit establish an emissions cap that allows a source
to exceed unit-specific PSD requirements as long as emissions
fall within the cap?
No. PSD requirements are applicable requirements and are
Title V permit terms with which sources must comply.
12.4 Acid Rain
1. What are the differences between a Phase I source and a Phase
II source?
Phase I sources are specifically identified in the Act, and
include units with electrical generating output of at least
100 megawatts. Phase II sources are all other units with a
generating capacity of at least 25 megawatts.
2. How is the Acid Rain Program different from other programs
under the Act?
The Acid Rain Program uses traditional and innovative market-
based approaches to reduce SO2 and nitrogen oxides (NOx)
emissions. For SO2, the program utilizes the concept of an
"allowance," which is an authorization to emit one ton of SO2.
Sources can buy, sell, trade, or bank allowances. A source's
acid rain emissions limit will be the number of allowances
that each unit holds, which is very flexible and could vary
throughout the year if the source participates in the
allowance market and trades allowances with other sources.
For NOx, the statute allows "emissions averaging" across two
or more sources, as long as total annual emissions are
equivalent to or less than what the sources would have emitted
had they complied with their applicable emission rates. Both
these approaches allow sources flexibility in determining how
compliance will be achieved under the Acid Rain Program, but
neither affects a source's obligation to comply with other
emissions limitations under the Act.
Continuous emissions monitoring (CEM) is instrumental in
ensuring that mandated reductions of SO2 and NOx are achieved;
stringent monitoring and reporting requirements are being
implemented to help ensure that these goals are met. By
requiring that each affected unit account for each ton of
emissions it emits, the Acid Rain Program will provide the
means for ensuring whether a source is in compliance or not
(through the comparison of annual emissions emitted by a
source with the allowances it holds). Continuous emissions
monitoring also instills confidence in the "currency" (SO2
allowances) being used in the allowance trading market.
Another unique and significant feature of the Acid Rain
Program is the provision requiring that affected sources with
more emissions than allowances at the end of a year (i.e., the
source is out of compliance) pay an automatic penalty of
$2000.00 for every ton of SO2 for which the source did not
hold an allowance, and $2000 for every ton of NOx above the
level necessary to comply with the emission rate required of
the source. These penalties are to be paid to EPA in both
Phase I and Phase II of the Acid Rain Program. In addition,
the source must offset its excess SO2 emissions in the next
calendar year.
3. If there are no Phase I or Phase II sources within the
jurisdiction of a permitting authority, will the permitting
authority still be required to promulgate regulations to
implement the Acid Rain Program?
All States in the continental United States, including all
local permitting authorities within the State boundaries,
must have the capability to implement the Acid Rain Program to
receive a fully approved operating permits program. Even
though a permitting authority has no Phase I or Phase II
units, new utility sources may be built or sources in the
jurisdiction of the agency may choose to opt-in to the
program. The permitting authority therefore needs to be
prepared to issue acid rain permits in the event of either of
these possibilities. Alaska and Hawaii, however, need not
promulgate regulations to implement the Acid Rain Program
since the program applies only to the continental United
States. (Similarly, Guam, the Virgin Islands, Puerto Rico and
the Trust Territories need not promulgate Acid Rain Program
regulations.)
4. How can permitting authorities reconcile the Phase II acid
rain permit application deadline (January 1, 1996) with the
Title V permit application deadline?
Permitting authorities should encourage sources to submit
their acid rain application with the rest of their Title V
application. However, if the acid rain portion of the permit
application is submitted after the Title V deadline (but no
later than January 1, 1996), the permitting authority may
choose to either: delay processing the permit until receipt
of the Acid Rain portion of the application, or process the
Title V application immediately, then later revise the permit
once the acid rain application is received. Note that the
deadline for submitting the acid rain application (which, at
the permitting authority's discretion, may be before the
January 1, 1996 deadline), does not alter the Part 70 deadline
for submitting the other pieces of the Title V permit
application.
5. How can permitting authorities reconcile the Phase II acid
rain permit issuance deadline (December 31, 1997) with the
Title V permit issuance deadlines in light of the mandatory 5
year permit term?
The Federal acid rain rules require permitting authorities to
issue all phase II permits by December 31, 1997 with terms
lasting 5 years from the permit's effective date. The
effective date can be no later than January 1, 2000. The EPA
will provide guidance in the future on how these dates can
best be reconciled with the Title V issuance deadlines.
6. How will the acid rain requirements under Phase II be
integrated into the operating permit?
The acid rain requirements under Phase II will be a discrete
segment in the operating permit. Acid rain requirements will
be different from other permit requirements, and must be
included in the Title V permit whether or not other SO2 or NOx
requirements are more stringent. Both the acid rain
requirements for SO2 and NOx must be included in the Title V
permit, and both are enforceable.
7. What are some of the permitting differences between Title IV
and Title V?
a. Designated representative: Under the acid rain rules,
only the "designated representative" (DR) or "alternate
designated representative" (ADR) for a source is
authorized to make acid rain related submissions. These
persons must file a certificate of representation with
EPA before they can assume their duties as the DR and
ADR. Part 70's "responsible official" does not qualify
as a designated representative unless EPA has received a
certificate of representation from that individual. The
EPA will maintain an electronically accessible list of
designated representatives and alternate designated
representatives.
b. Administrator's right to intervene: The acid rain rules
require that the permitting authority allow EPA to
intervene in any appeal of an acid rain permit. By
participating in a permitting authority's appeal process,
EPA will be able to support a permitting authority's
decision on a permit or bring to light and resolve
differences of opinion early so that a veto of the acid
rain permit can be avoided.
c. 90 day appeal period: Unlike Part 70, the acid rain
rules limit the period by which the acid rain portion of
an operating permit can be appealed administratively.
Part 70 does not specify a period by which an
administrative appeal must be filed. Both Part 70 and
the acid rain rules limit the judicial appeal period to
90 days. However, unlike Part 70, the acid rain rules do
not allow a judicial appeal beyond 90 days under any
circumstance.
d. Application is binding and enforceable as a permit: The
Federal acid rain rules state that a source's complete
acid rain permit application is binding and enforceable.
The purpose of this provision is to ensure that a source
has the equivalent of an acid rain permit in the unlikely
case that a permit is not issued before the beginning of
Phase II (January 1, 2000) or by the expiration date of a
previously issued permit.
e. Mandatory permit shield: The acid rain portion of every
operating permit is covered by a permit shield. This
shield assures the source that if it operates in
accordance with a permit issued in accordance with Title
IV, the source is deemed to be operating in compliance
with the Acid Rain Program.
f. Permit revisions: Under the acid rain rules there are
four different types of permit revisions: permit
modifications, administrative amendments, fast-track
modifications, and automatic amendments. The acid rain
rules identify in which situations one or more of these
types of revisions can be used.
The permit modification is essentially the same thing as
a significant modification under Part 70; in fact, the
acid rain rules cite the Part 70 regulations for the
process. Similarly, the acid rain rules cite Part 70 for
the procedure for administrative amendments.
Both the fast-track modification and the automatic
amendment are unique to Part 72. The fast-track
modification procedure can be used at the source's option
for certain kinds of revisions that would normally go
through the permit modification procedure. If selected,
the source, instead of the permitting authority, is
required to meet the public notice requirements of Part
70 at the same time that it sends its request for a
modification to the permitting authority. Public
comments are sent to both the permitting authority and
the source, and once the comment period is over, the
permitting authority acts on the revision as it would
normally under the permit modification procedure.
The automatic amendment is a change to the permit that
does not require any action by the permitting authority.
This type of amendment is effected when there is a change
to the number of allowance in a source's Allowance
Tracking System account maintained by EPA. For instance,
the purchase or deduction of allowances triggers an
automatic amendment.
g. Permit issuance procedures. In general, acid rain
permits are to be issued using Part 70 procedures.
However, there are a few exceptions. For instance,
within 10 days of determining whether an acid rain
application is complete, the permitting authority is
required to notify the EPA of that determination.
Another example is that Part 72 requires the permitting
authority to notify EPA of any state or judicial appeal
within 30 days of the filing of the appeal. Other
differences between the Title IV and Title V permit
issuance procedures can be found in S-600 of the model
acid rain rule.
8. What will be the practical effect of the different permit
revision procedures for acid rain and operating permits?
Only two elements differ between the two revision processes:
(1) the acid rain rules do not allow the minor permit
amendment procedure; and (2) acid rain has a fast-track
modification procedure which is different from the Part 70
program.
Source changes that constitute minor permit amendments under
Part 70 would probably not require a permit revision under
Part 72. Similarly, changes that are fast-track modifications
under the Acid Rain Program are governed by the Part 72 permit
revision procedures, rather than the Part 70 procedures,
because the changes are specific to acid rain. Therefore, no
conflict exists between the two procedures: source changes
that can be executed through the minor permit amendment
procedure under Part 70 would probably require no separate
revision procedure under Part 72, and changes that are fast-
track modifications under Part 72 would require no separate
revision procedure under Part 70.
Finally, note that "permit modifications" in Part 72 follow
the same procedures as "significant modifications" in Part 70.
9. Could one permit review process (to include public
participation) be developed to issue the entire Title V
permit, including the acid rain portion?
Yes, with one caveat. When permitting authorities issue their
operating permits, the Phase II acid rain requirements will
simply be one "chapter" of that permit. Therefore, the permit
will be subjected to only one public review process that will
cover the entire permit. The EPA will also review the permit
only once, looking at acid rain and other requirements
simultaneously. The caveat comes when the permitting
authority reopens the permit to add the acid rain NOx
requirements. The NOx portion of the acid rain application is
due January 1, 1998, a day after the permitting authority is
required to issue the initial acid rain permit. Because the
NOx requirements must also undergo public review, a second
public review process will be required when NOx is
incorporated in the source's permit.
10. Who will be reviewing the acid rain portion of operating
permits during EPA's 45-day review period before permit
issuance?
The EPA expects the Regional Offices to review individual
permits, with EPA Headquarters support provided on an "as
needed" basis, similar to the NSR process.
11. Phase II sources are required to submit Phase II permit
applications by January 1, 1996. Do Phase I sources also have
to submit Phase II applications by January 1, 1996, even
though the Phase I permit just became effective in 1995?
Yes. Both Phase I and Phase II sources have to submit Phase
II permit applications by January 1, 1996.
12. What happens if the permitting authority issues the Title V
permit before the acid rain portion of the operating permits
program is in place?
So long as the permit program is approved before July 1, 1996,
the permitting authority will be responsible for issuing the
Phase II acid rain permit. (See section 408(d)(3) of the
Act.) If the permitting authority has already issued the
Title V permit, that permit would be reopened to include the
Phase II acid rain requirements. EPA recommends, however,
that permitting authorities plan their timing of Title V
permit issuance for the affected utility sources so that
permits need not be reopened to include acid rain.
If the permitting authority does not have an approved program
that includes acid rain by July 1, 1996, EPA is responsible
for issuing the Phase II permit.
13. Will EPA require permitting authorities to track Phase II
sulfur dioxide allowances?
No. The EPA is responsible for tracking allowances in both
Phase I and Phase II. However, EPA plans to give permitting
authorities view-only access to computerized records in the
allowance tracking system.
14. How does the NOx portion of the Acid Rain Program differ from
the SO2 portion?
The NOx portion of the Acid Rain Program will also be
flexible, but will not utilize an allowance trading system
(Congress did not provide for an allowance program for NOx).
A source has the option of meeting the applicable NOx emission
rate out right, applying for a NOx averaging plan (where the
average rate of several units may not exceed a given amount),
or applying for an alternative emissions limitation. In
addition, the concept of banking is also under consideration.
This rule is not yet final, so only general language regarding
NOx will be required in operating permit program submittals.
15. What should permitting authorities do about including NOx
requirements in their operating permits program submittals,
since these rules are not yet final?
Since Part 76 (NOx) has not yet been finalized, a permitting
authority must only demonstrate that it has the ability to
integrate NOx requirements (once the NOx rule is finalized) in
it's Title V submittal. The EPA will provide permitting
authorities with guidance on how to amend their legal
authority as needed to include NOx requirements once the final
rule has been promulgated.
12.5 Enhanced Monitoring
12.6 Stratospheric Ozone
13.0 MISCELLANEOUS
13.1 Indian Lands
1. For an Indian reservation located within a State, is the State
program required to include sources within the Indian
reservation? Would the State be sanctioned for submitting a
program that did not cover the sources within the Indian
reservation?
States in general do not have jurisdiction for purposes of
regulating air quality on an Indian reservation. This can be
changed by an agreement or treaty between the tribe and the
State. A State would be expected to include in its program
sources on an Indian reservation only if it could prove it had
jurisdiction over the reservation. A State would not be
subject to sanctions unless the State had jurisdiction over
the reservation and had not submitted or implemented a program
for the sources on the Indian lands. For sources on Indian
lands not covered by a State program or by an operating
permits program administered by an Indian tribe, the Federal
government is responsible for permitting.
13.2 Pollution Prevention
14.0 PART 71
(No questions in this section at this time)
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