Federal Register Version, September 4, 1992
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
Operating Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: The EPA is promulgating a new part 70 of chapter I of
title 40 of the Code of Federal Regulations (CFR).
Title V of the Clean Air Act (Act) Amendments of 1990, Public Law
101-549, enacted on November 15, 1990, requires EPA to promulgate
regulations within 12 months of enactment that require and
specify the minimum elements of State operating permit programs.
This new part 70 contains these provisions. It requires States
to develop, and to submit to EPA, programs for issuing operating
permits to major stationary sources (including major sources of
hazardous air pollutants listed in section 112 of the Act),
sources covered by New Source Performance Standards (NSPS),
sources covered by emissions standards for hazardous air
pollutants pursuant to section 112 of the Act, and affected
sources under the acid rain program.
Title V establishes timeframes for developing and
implementing the State permit programs. Within 3 years of
enactment (i.e., no later than November 15, 1993), States must
submit proposed permit programs to EPA for approval. The EPA
must act to approve or disapprove a State program within 1 year
of submittal by the State to EPA. In some cases, EPA can grant
programs an interim approval for a period of up to 2 years. If a
State fails to submit a fully-approvable program within the 3-
year period (or by the end of the interim approval period), EPA
will apply specific sanctions pursuant to the provisions of title
V and, in any event, must establish a Federal program 2 years
after the end of the 3-year program submittal period. Sources
subject to the part 70 program must submit complete permit
applications within 1 year after a State program is approved by
EPA (including an interim approval) or, where the State program
is not approved, within 1 year after a program is promulgated by
EPA. In the case of new sources, complete permit applications
would generally be due 12 months after the source commences
operation, unless the permitting authority sets an earlier
deadline.
Part 70 sources must obtain an operating permit addressing
all applicable pollution control obligations under the State
implementation plan (SIP) or Federal implementation plan (FIP),
the acid rain program, the air toxics program, or other
applicable provisions of the Act (e.g., NSPS). Sources must also
submit periodic reports to the State and EPA, as appropriate,
concerning the extent of their compliance with permit
obligations. The permit, permit application, and compliance
reports will be available to the public, subject to any
applicable confidentiality protection procedures similar to those
contained in section 114(c).
In the proposal, EPA discussed issues connected with the
regulations that will govern EPA's issuance of title V permits.
The EPA will address these issues further when the Agency
proposes Federal regulations.
DATES: The regulatory amendments announced herein take effect on
[today's date]. This promulgation, however, does not affect the
date by which States are to submit full operating permit programs
to EPA for approval. The submittal deadline is set by section
502(d)(1) as 3 years after enactment of the Act Amendments of
1990. The deadline for full program submittal, therefore, is set
by the Act as November 15, 1993. A slight variation to this rule
can occur if EPA grants a program interim approval. An interim
approval will be accompanied by a list of revisions or
modifications necessary for the program to be fully approved.
The State will then have until 6 months prior to the end of the
interim approval to submit the program corrections, even though
the November 15, 1993 date may have passed.
DOCKET: Supporting information used in developing the proposed
and final rules is contained in Docket No. A-90-33. This docket
is available for public inspection and copying between 8:30 a.m.
and 3:30 p.m., Monday through Friday, at the address listed
below. A reasonable fee may be charged for copying.
ADDRESSES: The address of the EPA Air Docket is: Room M-1500,
Waterside Mall, 401 M Street, SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Michael Trutna (telephone
919/541-5345) or Kirt Cox (telephone 919/541-5399), Mail Drop 15,
United States Environmental Protection Agency, Office of Air
Quality Planning and Standards, Air Quality Management Division,
Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are
in the following format:
I. Background and Purpose
II. Implementation Principles
III. Summary of Final Rules
IV. Discussion of Regulatory Changes
A. Section 70.1 - Program Overview
B. Section 70.2 - Definitions
C. Section 70.3 - Applicability
D. Section 70.4 - State Program Submittals and Transition
E. Section 70.5 - Permit Application
F. Section 70.6 - Permit Content
G. Section 70.7 - Permit Issuance, Renewal, Reopenings,
and Revisions
H. Section 70.8 - Permit Review by EPA and Affected States
I. Section 70.9 - Fee Determination and Certification
J. Section 70.10 - Federal Oversight and Sanctions
K. Section 70.11 - Requirements for Enforcement
Authority
V. Administrative Requirements
A. Docket
B. Office of Management and Budget Review
C. Regulatory Flexibility Act Compliance
D. Paperwork Reduction Act
This preamble is organized to meet the needs of readers who
want just an overview of the operating permit program and for
readers who want a detailed discussion of the changes made to the
proposed regulations to result in today's final rulemaking.
The first section provides background on the amendments to
the Act establishing an operating permit program, the purposes of
that action, and the expected benefits. The information is
useful to anyone seeking any level of information on the
operating permit program.
The second section mentions the principles EPA has followed
while developing the regulations. These implementation
principles and the positions on associated issues were discussed
in detail in the May 10, 1991, preamble.
Section III of the preamble provides a summary of the
requirements of the regulations being promulgated today.
A discussion of the regulatory changes from the proposed
requirements is in section IV. In the preamble of the May 10,
1991, proposal, EPA explained the basis for its various proposed
positions. Where the proposed regulations have not been changed
in the final rules, EPA continues for the most part to rely on
the rationale provided in the proposal notice. Where the
regulations have changed in more than a minor way, this preamble
states the basis and purpose for the final regulations, including
the reasons for the change. A separate document providing more
detailed responses to comments on the proposal will be placed in
the docket. The design of section IV follows the flow of the
final part 70 regulations.
The final section (section V) contains the administrative
requirements accompanying Federal regulatory actions. These
include the topics listed in the preamble outline above.
The preamble includes many citations [e.g., section 70.6] to
refer the reader to more detail or to the origin of certain
requirements. These citation sections will not be followed by
their origin such as "of this preamble" or "of title V." Rather,
the reader can recognize the origins of the sections by their
nature:
A. Sections of the preamble begin with a Roman numeral.
B. Sections of title V of the Act are in the 500's.
C. Sections of the proposed regulations range from 70.1
to 70.11.
D. Sections of the Act are referenced by a three-digit
number, such as 112 and 408.
E. Sections of existing EPA regulations generally are
preceded by "40 CFR."
This preamble makes frequent use of the term "State,"
usually meaning the State air pollution control agency which
would be the permitting authority. The reader should assume that
use of "State" also applies, as defined in section 302(d), to the
District of Columbia and territories of the United States, and
may also include reference to a local air pollution agency.
These agencies can either be the permitting authority for the
area of their jurisdiction or assist the State or EPA in
implementing the title V permitting program. In some cases, the
term "permitting authority" is used and can refer to both State
and local agencies when the local agency directly issues permits
or assists the State in issuing permits. The term "permitting
authority" may also apply to EPA where the Agency is the
permitting authority of record.
I. Background and Purpose
Title V was added to the Act on November 15, 1990, and
introduces an operating permit program. It requires that EPA,
within 12 months of enactment, promulgate regulations setting
forth provisions under which States will develop operating permit
programs and submit them to EPA for approval. The EPA proposed
these regulations to be codified in a new part 70 of chapter I of
title 40 of the CFR on May 10, 1991 [56 FR 21712]. The comment
period for that action ended on July 9, 1991. Approximately 500
public comments were received on the proposal during the comment
period. Copies of these comments appear in the docket for this
action listed above under DOCKET. The following four public
hearings were held on the proposal: June 4 and 5, 1991, in
Washington, D.C.; June 6, 1991, in Chicago, Illinois; June 24,
1991, in San Francisco, California; and July 1, 1991, in Dallas,
Texas.
The significant changes to the regulations resulting from
public comments are contained in this preamble. A summary of all
public comments, transcripts of the public hearings, and the
response of EPA to all the significant comments are contained in
a technical support document.
Sources subject to the permitting requirements of part 70
(part 70 sources) must obtain an operating permit; States must
develop and implement the program; and EPA, after promulgating
today's permit program regulations, must review each State's
proposed program and oversee the State's efforts to implement any
approved program, including reviewing proposed permits and
vetoing improper permits. When a State fails to adopt and
implement its own approvable program, EPA must apply sanctions
against the State or the relevant jurisdiction and ultimately
also develop and implement a Federal permit program.
The addition of such a permitting program makes the Act more
consistent with other environmental statutes, including the Clean
Water Act (CWA) and the Resource Conservation and Recovery Act
(RCRA), both of which have permit requirements. The part 70
regulations have been designed to minimize the disruption to
current State efforts by offering as much flexibility as is
provided by the law. The program can also help implement market-
based control strategies using improved monitoring and emissions
tracking.
While title V generally does not impose substantive new
requirements, it does require that fees be imposed on sources and
that certain procedural measures be followed, especially with
respect to determining compliance with underlying applicable
requirements. The program will generally clarify, in a single
document, which requirements apply to a source and, thus, should
enhance compliance with the requirements of the Act. Currently,
a source's obligations under the Act (ranging from emissions
limits to monitoring, recordkeeping, and reporting requirements)
are, in many cases, scattered among numerous provisions of the
SIP or Federal regulations. In addition, regulations are often
written to cover broad source categories, therefore, it may be
unclear which, and how, general regulations apply to a source.
As a result, EPA often has no easy way to establish whether a
source is in compliance with regulations under the Act.
The title V permit program will enable the source, States,
EPA, and the public to understand better the requirements to
which the source is subject, and whether the source is meeting
those requirements. Increased source accountability and better
enforcement should result. The program will also greatly
strengthen EPA's ability to implement the Act and enhance air
quality planning and control, in part, by providing the basis for
better emission inventories.
Another benefit of the title V permit program is that it
provides a ready vehicle for the States to administer significant
parts of the substantially-revised Federal air toxics program and
the new acid rain program. This enhances EPA's ability to
oversee all programs under the Act. Specifically, the Act
requires that States use the permit system to administer the air
toxics program. In addition, States will be responsible for
reviewing and issuing permits to implement the second phase of
the acid rain program (with permitting activities beginning
in 1996) and will play a significant role in ensuring compliance
with the acid rain regulations promulgated under title IV of the
Act.
Finally, an important benefit is that the permit program
contained in these regulations will ensure that States have
resources necessary to develop and administer the program
effectively. In particular, the permit fees provisions of title
V will require sources to pay the costs of developing and
implementing the permit program. To the extent the fees are
based on actual emission levels, the fees will create an
incentive for sources to reduce emissions.
The EPA expects that this rule will promote several
objectives which the Agency believes are essential to the long
term success of environmental programs: market-based programs,
coordination of control programs across media, and pollution
prevention.
Market-Based Programs: The EPA is committed to using
market-based principles to achieve the greatest level of
environmental protection at the least cost. The title V
operating permit program will lay the critical foundation for
pursuing market-based programs under the Clean Air Act beyond the
acid rain program under title IV, which already provides for
marketable emission allowances within an operating permit system.
Before the permit program, there was no ready vehicle for
quantifying and accounting for Federal air pollution control
requirements at a particular facility. With a title V permit,
those control requirements can be quantified by a facility, the
first step in establishing the currency necessary for a market-
based system. Moreover, title V permits will establish
monitoring and compliance requirements which are essential to
make a market system accountable.
Cross-Media Coordination: Of the major regulatory statutes
EPA implements, the Act alone did not have a permit program as
the basic vehicle for applying source-specific control
requirements at regulated facilities. As a result, EPA could not
readily include air pollution requirements in its efforts to
coordinate control requirements across media. Now that EPA has
available to it permits which reflect the requirements under the
CWA, RCRA, and the Act, it will be easier to coordinate those
programs in the future.
Part of the cross-media coordination EPA hopes to achieve
using title V permits is a comparison of the relative impact of
control requirements across media and risk-based analysis of the
impact of pollution control requirements. Clearly, EPA must
faithfully implement the requirements in each of its regulatory
programs, but EPA hopes increasingly to balance control
requirements across media according to risk-based analyses to the
extent the relevant statutes provide EPA with flexibility. In
the future, such comparisons across media will provide the
information critical to an ongoing evaluation of EPA's regulatory
programs, and may provide the basis for transforming the more
media-specific structure of the Agency's programs into a more
unified program that addresses the greatest risk first.
Pollution Prevention: Title V permits will also lead air
pollution sources and regulatory agencies to evaluate their air
pollution control strategies, both on a source-specific basis and
across the regulatory program. Implementing title V presents an
opportunity to pursue strategies that avoid pollution, rather
than control it, and that eliminate pollution, rather than shift
it from one medium to the other. Indeed, a cross-media analysis
should highlight opportunities to avoid pollution shifting.
II. Implementation Principles
The passage of the Act amendments of 1990 was a major
accomplishment in the protection of public health and the
environment in the United States. The Act sets forth ambitious
goals which can only be achieved through effective and
expeditious implementation by EPA and State and local
governments. Today's rulemaking is one of the first of several
important actions that EPA will be taking to accomplish its rule
development responsibilities under the Act. The EPA in designing
its May 10, 1991 proposal identified several principles to guide
the design and implementation of title V regulations and related
programs. These principles, which were discussed extensively in
the proposal, were thought to be necessary to preserve the
legislative intent underlying the content of title V. The EPA
intends that these principles be appropriately incorporated into
all aspects of program development and implementation by both
States and EPA. In particular, EPA will employ them when it is
responsible for developing rules, overseeing State or local
agency programs and permits, or issuing permits.
III. Summary of Final Rules
A. Applicability
The title V operating permits program requires all part 70
sources to submit permit applications to the appropriate
permitting authority within 1 year of the effective date (i.e.,
date of EPA approval) of the State program. The operating permit
program applies to the following sources:
1. Major sources, defined as follows:
(a) Air toxics sources, as defined in section 112 of the
Act, with the potential to emit 10 tons per year (tpy), or more,
of any hazardous air pollutant listed pursuant to 112(b); 25 tpy,
or more, of any combination of hazardous air pollutants listed
pursuant to 112(b); or a lesser quantity of a given pollutant, if
the Administrator so specifies [501(2)(A)].
(b) Sources of air pollutants, as defined in section 302,
with the potential to emit 100 tpy, or more, of any pollutant
[501(2)(B)].
(c) Sources subject to the nonattainment area provisions of
title I, part D, with the potential to emit pollutants in the
following, or greater, amounts [501(2)(B)]:
(i) Ozone (VOC and NOx) TPY
Serious 50
Transport regions not
severe or extreme 50 (VOC only)
Severe 25
Extreme 10
(ii) Carbon monoxide
Serious (where
stationary sources
contribute
significantly) 50
(iii) Particulate Matter
(PM-10)
Serious 70
2. Any other source, including an area source, subject to a
hazardous air pollutant standard under section 112.
3. Any source subject to NSPS under section 111.
4. Affected sources under the acid rain provisions of title IV
[501(1)].
5. Any source required to have a preconstruction review permit
pursuant to the requirements of the prevention of significant
deterioration (PSD) program under title I, part C or the
nonattainment area, new source review (NSR) program under
title I, part D.
6. Any other stationary source in a category EPA designates, in
whole or in part, by regulation, after notice and comment.
A major source is defined in terms of all emissions units
under common control at the same plant site (i.e., within a
contiguous area in the same major group, two-digit, industrial
classification). Once subject to the part 70 operating permit
program for one pollutant, a major source must submit a permit
application including all emissions of all regulated air
pollutants from all emissions units located at the plant, except
that only a generalized list needs to be included for
insignificant events or emissions levels. The program (including
combinations of partial programs) applies to all geographic areas
within each State, regardless of their attainment status. The
acid rain permit program requirements, however, apply only within
the contiguous 48 States and the District of Columbia.
The EPA is authorized, consistent with the applicable
provisions of the Act, to exempt one or more source categories
(in whole or in part) from the requirement to have a permit if
the Agency determines that compliance with the part 70
regulations would be "impracticable, infeasible, or unnecessarily
burdensome" [section 502(a)]. The EPA may not, however, exempt
any major source or affected (i.e., acid rain) source. The EPA
believes that compliance by nonmajor sources with the permitting
requirements during the early stages of the program would prove
to be unnecessarily burdensome for nonmajor sources and
impracticable and infeasible for permitting authorities as well.
Therefore, to promote an orderly phase-in of the program, States
can defer coverage temporarily for all sources which are not
major. The EPA will complete a rulemaking to consider further
deferral or permanent exemption for non-major sources within 5
years of the date EPA first approves a State program that defers
such sources.
Any source whose obligation to obtain a permit is deferred
may request a permit prior to the end of the 5-year deferral
period. All deferred sources will be required to submit permit
applications within 12 months after the completion of the future
rulemaking, unless they are sources or source categories that
receive a continued exemption (i.e., EPA determines that
compliance with the permitting requirements for such categories
would be impracticable, infeasible, or unnecessarily burdensome
on the source categories) in the future rulemaking.
In addition, States may permanently exempt from review those
nonmajor sources and source categories subject to title V solely
because they are subject to the NSPS for new residential wood
heaters or the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for asbestos from demolition and renovation
activities. The Administrator reserves the right to grant
deferral or exemption to additional nonmajor source categories
when they become subject to section 112, and thereby subject to
title V.
B. State Permit Program Submittals and Transition
Title V requires EPA to promulgate regulations establishing
the minimum elements of a State permit program. State and local
pollution control agencies or interstate compacts may implement
provisions of title V, as long as all geographic areas within
each State are covered by a permit program. As previously
discussed, reference to the "State" will include reference to
local agencies, where appropriate, which would allow granting of
a partial program for a specific geographic area within a State.
The EPA oversees development of State programs and enforces the
obligation to implement a program in each State. Should a State
fail to develop a permit program, the EPA must implement a
program for that State [501(4), 502(d)(1), and 302(b)].
1. Minimum Program Requirements
As required by title V, today's regulations establish the
minimum elements of a State operating permit program, including
the following:
(a) Requirements for permit applications, including
standard application forms and criteria for determining the
completeness of applications [502(b)(1)].
(b) Monitoring and reporting requirements [502(b)(2)].
(c) A permit fee system [502(b)(3)].
(d) Provisions for adequate personnel and funding to
administer the program [502(b)(4)].
(e) Authority to issue permits and assure that each
permitted source complies with applicable requirements under the
Act [502(b)(5)(A)].
(f) Authority to terminate, modify, or revoke and reissue
permits "for cause" [502(b)(5)(D)].
(g) Authority to enforce permits, permit fee requirements,
and the requirement to obtain a permit, including civil penalty
authority in a maximum amount of not less than $10,000 per day
for each violation, and "appropriate criminal penalties"
[502(b)(5)(E)].
(h) Authority to assure that no permit will be issued if
EPA timely objects to its issuance [502(b)(5)(F)].
(i) Adequate, streamlined, and reasonable procedures for
expeditiously determining when applications are complete and for
processing applications; for public notice, including offering an
opportunity for public participation, where applicable; for
expeditious review of permit actions; and for State court review
of the final permit action [502(b)(6)].
(j) Authority and procedures to provide that the permitting
authority's failure to act on a permit or renewal application
within the deadlines specified in the Act (section 503 and the
deadlines for permitting under acid rain provisions in title IV)
shall be treated as a final permit action solely to allow
judicial review by the applicant, anyone else who participated in
the public review process, and any other person who could obtain
judicial review of such action under applicable law, to compel
action on the application [502(b)(7)].
(k) Authority and procedures to make available to the
public any permit application, compliance plan, permit, emissions
or monitoring report, and compliance report or certification,
subject to the confidentiality provisions similar to those of
section 114(c) of the Act [502(b)(8)]; the contents of the permit
itself are not entitled to confidentiality protection [503(e)].
(l) Provisions to allow operational flexibility at the
permitted facility [502(b)(10)].
(m) Provisions required if a State allows sources to make
certain changes that are not prohibited or addressed by the
permit [502(a)].
(n) Provisions to require that part 70 permits include
terms and conditions addressing alternative scenarios at the
permitted facility and emissions trading provided for in the
underlying applicable requirement [502(b)(6)].
2. State Program Development
Within 3 years of enactment, the Governor of each State
shall submit to EPA a permit program meeting the requirements of
title V. A State may submit its current or proposed program to
EPA for approval. The Governor must also submit a legal opinion
from the attorney general, attorney for those State air pollution
control agencies with independent legal counsel, or the chief
legal officer of an interstate agency, stating that the laws of
the State, locality, or interstate compact provide adequate
authority to carry out the program [502(d)(1)]. The EPA
encourages prompt action by each State to evaluate the potential
of its existing enabling legislation to implement title V and to
take additional actions, as needed, to ensure a timely and
approvable program submittal.
Several States may need new legislative authority in a
number of areas in order to fulfill the requirements of the Act,
including (but not limited to): authority to charge, collect,
retain, and spend adequate permit fees, and to collect civil
penalties of a maximum amount of at least $10,000 per day per
violation. The EPA intends to assist States in identifying and
obtaining any required new authorities.
3. The EPA Review of Program Submittals
Within 1 year after receiving the State's program, EPA shall
approve or disapprove it, in whole or in part. The EPA may
approve the program to the extent it meets the requirements of
the Act and today's regulations.
If EPA disapproves the program, or any part of it, EPA must
notify the Governor of any revisions necessary for EPA approval.
The State then has 180 days from this notice to revise and
resubmit the program [502(d)(1)]. When EPA approves a program,
EPA must suspend issuance of Federal permits, but may retain
jurisdiction over permits still under administrative or judicial
review [502(e)].
4. Interim Program Approvals
If a program is not fully-approvable, EPA may grant interim
approval to a permit program, so long as the program
"substantially meets" the requirements of title V. Criteria for
satisfying the "substantially meets" test include:
(a) The commitment and capability to collect fees adequate
to cover the costs of the interim permitting program and the
development as appropriate of the whole program;
(b) The legal authority to assure that sources subject to
the interim program comply with all applicable requirements of
titles I, IV, and V under the Act;
(c) Fixed permit terms not to exceed 5 years;
(d) The opportunity for public participation in appropriate
permit proceedings;
(e) The opportunity for EPA to review and object to the
issuance, modification, or renewal of any permit and for affected
States to review such permits consistent with section 505 of the
Act;
(f) The requirement that a proposed permit will not be
issued if EPA objects to its issuance;
(g) Adequate procedures for enforcing permits, including
penalties;
(h) Provisions for allowing operational flexibility and
alternative scenarios for sources, consistent with sections
70.4(b)(12) and 70.6(a)(9);
(i) Streamlined procedures for issuing and revising permits
and determining when applications are complete; and
(j) Application and reporting forms to be used in
implementing the interim program.
In the notice of final rulemaking granting interim approval,
EPA must specify the changes the State must make to receive full
approval. The EPA may grant interim approval, which may not be
renewed, for a period of up to 2 years. During the interim
approval period, the State is protected from sanctions for
failure to have a program, and EPA is not obligated to promulgate
a Federal permit program in the State [502(d)(2)-(3) and (g)].
Permits issued under a program with interim approval have full
standing with respect to title V, and the 1-year time period for
submittal of permit applications by subject sources begins upon
interim approval, as does the 3-year time period for processing
the initial permit applications discussed in the following
section.
5 State Permit Review
As noted above [III.B.(4)], subject sources are required to
submit permit applications to the permitting authority within 1
year of program approval, whether full, partial, or interim. For
title IV (acid rain) sources, however, specific superseding
deadlines are provided for the submission of Phase II permit
applications, which will not be due to States until January 1,
1996 [408(D)(2)]. For the initial round of permit applications,
the permitting authority must establish a phased schedule for
processing permit applications submitted within the first full
year after program approval. This schedule must assure that the
permitting authority will act on at least one-third of the
permits each year over a period not to exceed 3 years after
approval (interim or full) of the program [503(c)]. The EPA
urges States to encourage early submittals of complete
applications.
States are required to issue permits under the acid rain
program by December 31, 1997 [408(D)(3)]. For most States, this
deadline will coincide roughly with the second year of permit
program implementation. Additionally, expedited review and
issuance procedures may be required for permit applications for
sources pursuing compliance extensions for early reductions of
hazardous air pollutants under section 112(i)(5).
After acting on the initial round of applications, the
permitting authority must from then on act on a completed
application (i.e., issue or deny a permit) within 18 months after
receiving the complete application. The permitting authority
must establish reasonable procedures to prioritize review of
permit applications, especially in the case of applications for
new construction or modifications as defined in title I [503(c)].
C. Complete Permit Application
Each State program must establish specific criteria to be
used in defining a complete permit application. A complete
application is one that the permitting authority has determined
to contain all the necessary information needed to begin
processing the permit application. The permitting authority can
determine, however, that the application becomes incomplete if
the source fails to provide timely updates to the application
that the permitting authority needs to issue the permit within
the specified deadlines.
The permitting authority must provide notice to the source
of completeness determinations. In the event that no notice is
provided to the source within 60 days after receipt of the
application by the permitting authority, the application shall be
deemed complete.
A source which files a timely and complete application for a
permit or a renewal will not be liable for failure to have a
permit if the permitting authority delays in issuing or reissuing
the permit, provided this delay was not due to the applicant's
failure to respond in a reasonable and timely manner to written
requests from the permitting authority for additional information
needed to evaluate the application. This protection also applies
with respect to title V to sources requiring both new title V and
certain NSR permits. These sources must have a preconstruction
permit consistent with the requirements of parts C and D of title
I, and must have filed a complete application for a title V
operating permit within 12 months of commencing operation, unless
some earlier date is required by the permitting authority. In
general, a complete application must be submitted according to
the transition schedule approved within the part 70 program and
in a timely way for subsequent renewals. "Timely" for renewals
means 6 months prior to expiration of the permit, unless some
greater time is needed (not to exceed 18 months) to ensure that
the terms of the permit do not lapse before they are revised or
renewed.
All complete applications must contain information which
identifies a source, its applicable air pollution control
requirements, the current compliance status of the source, the
source's intended operating regime and emissions levels, and must
be certified as to their truth, accuracy, and completeness by a
responsible official after making reasonable inquiry. Each
permit application must, at a minimum, include a completed
standard application form (or forms) and a compliance plan. The
permitting authority can, however, allow the application to
cross-reference relevant materials where they are current and
clear with respect to information required in the permit
application. Such might be the case where a source is seeking to
update its title V permit based on the same information used to
obtain an NSR permit or where a source is seeking renewal of its
title V permit and no change in source operation or in the
applicable requirements has occurred. Any cross-referenced
documents must be included in the title V application that is
sent to EPA and that is made available as part of the public
docket on the permit action.
The compliance plan describes how the source plans to comply
or achieve compliance with all applicable air quality
requirements under the Act. The exact contents and detail
required in the compliance plan depend on the compliance status
of the source with respect to each applicable requirement. This
plan must include a schedule of compliance and a schedule for the
source to submit progress reports to the permitting authority no
less frequently than every 6 months where applicable. Each
source must submit a compliance certification report at least
once a year in which it certifies its status with respect to each
requirement, and the method used to determine the status.
Specific requirements for acid rain affected sources regarding
compliance schedules, progress reports, and compliance
certifications will be contained in regulations promulgated under
title IV of the Act.
The minimum data elements required in all standard
application forms, as well as the basic requirements for
compliance plans and compliance certifications, are presented in
section 70.5 of the regulations. With the exception of certain
Federal programs (e.g., acid rain), EPA will not specify that any
particular form be used by States as long as the minimum data
elements are provided to EPA. However, the Agency will encourage
the use of certain model forms as a preferred way to meet the
requirements of section 70.5.
Additional information may be required from some subject
sources. For example, those located in nonattainment areas under
part D of title I may be required to fulfill the emissions
statement requirements for certain sources of VOC and NOx.
Similarly, sources of hazardous air pollutants subject to section
112 which are attempting to comply with alternative emissions
limits will also need to submit additional information.
D. Permit Content
The State program is required in section 70.6 to assure that
permits meet all applicable requirements of the Act and include
the following:
1. A fixed term, not to exceed 5 years [502(b)(5)(B)], except
that affected sources under title IV must have 5-year fixed terms
[408(a)] and solid waste incinerators under section 129(e) may
have up to a 12-year fixed term.
2. Limits and conditions to assure compliance with all
applicable requirements under the Act, including requirements of
the applicable implementation plan [504(a)] and title IV.
3. A schedule of compliance (where applicable), which is defined
as a schedule of remedial measures [504(a) and 501(3)].
4. Inspection, entry, monitoring, compliance certification,
recordkeeping, and reporting requirements to assure compliance
with the permit terms and conditions, consistent with any
monitoring regulations that EPA promulgates under
sections 504(b), 114, and 504(c). Nothing in this regulation
should be read to require continuous emissions monitoring in
situations where it is not otherwise prescribed.
5. A provision describing conditions under which any permit for
a major source with a term of 3 or more years must be reopened to
incorporate any new standard or regulation promulgated under the
Act [502(b)(9)].
6. Provisions under which the permit can be revised, terminated,
modified, or reissued for cause.
7. Provisions ensuring operational flexibility within a permit
so that certain changes can be made within a permitted facility
without a permit revision, provided that the change is not a
"modification" (as defined in title I of the Act), that it does
not exceed the emissions allowed under the permit or under any
applicable requirement, and that a notice is provided to the
permitting authority at least 7 days in advance where the permit
would not allow such changes [502(b)(10)]. The operational
flexibility provision contained in title V must be implemented
carefully and fairly so that a source can respond quickly to
changing business opportunities while, at the same time, the
permitting authority is assured that the source will meet all the
applicable requirements of the Act.
8. A provision that nothing in the permit or compliance plan
issued pursuant to title V of the Act shall be construed as
affecting allowances under the acid rain program [408(b)].
9. A provision ensuring that all alternative operating scenarios
identified by the source are included in the permit [502(b)(6)].
All terms and conditions in a part 70 permit, including any
provisions designed to limit a source's potential to emit, are
enforceable by the Administrator and citizens under the Act.
Consistent with EPA's discretion under the Act, the final rules
require the permitting authority to identify those provisions in
the permit which are not required under the Act or under any of
its applicable requirements (i.e., State origin only) as not
being federally enforceable. Like all other permit terms, a term
which the permitting authority fails to designate as not
federally enforceable will not be subject to challenge after 90
days.
Section 504(f) of the Act defines the permit shield
provision of title V, which enables States to provide sources
with greater certainty as to their legal obligations under the
Act. This section authorizes the permitting authority to provide
that compliance with the permit shall be deemed compliance with
all other applicable provisions of the Act, if the applicable
requirements of such provisions are included in the permit, or if
the permitting authority, in acting on the permit, determines
that such other provisions (which shall be referred to in such
determinations) are not applicable. This determination or a
concise summary thereof must be included in the permit. The EPA
encourages States to employ the "permit shield" routinely to help
stabilize the permit process and give greater certainty to the
regulated community.
The EPA may alter the scope of the permit shield by rule.
The Agency intends to prohibit use of the shield in cases where
the source initiates changes that result in requirements becoming
applicable to the source beyond those contained in the permit
(until such changes are later incorporated into the permit).
Sources seeking to obtain or renew a part 70 permit cannot be
shielded from enforcement actions alleging violations of any
applicable requirements (including orders and consent decrees)
that occurred before, or at the time of, permit issuance. In
addition, sources may not be shielded from requests for
information pursuant to section 114 of the Act. The EPA has also
provided that the shield will not extend to minor permit
modifications (and to some changes made under the operational
flexibility provisions pursuant to section 70.4(b)(12) and to
most administrative permit amendments).
E. Permit Issuance and Review
Regulations concerning the processes for permit issuance,
review, renewal, revision, and reopening are found in sections
70.7 and 70.8. Briefly, these include:
1. Permit Notification to EPA and Affected States
The permitting authority must provide notice to certain
States and EPA of permit applications received and proposed
permits. It must submit to EPA the following:
(a) The application for any permit, renewal, or revision,
including any compliance plan, or any portion EPA determines it
needs to review the application and permit effectively; and
(b) Each proposed permit and each permit issued as a final
permit by the State [505(a)(1)].
The permitting authority is required to notify all affected
States of each permit application that must be forwarded to EPA.
Affected States are those whose air quality may be affected and
that are contiguous to the State in which the source is located,
or those within 50 miles of the source. The permitting authority
must give all such States an opportunity to submit written
recommendations for the permit. If the authority refuses to
accept those recommendations, it must provide its reasons for
refusal in writing [505(a)(2)].
The EPA may waive its own and affected States' review of
permits for any category of sources, except major sources, either
when approving an individual program, or in a regulation
applicable to all programs. The EPA may also waive its own right
to review, but maintain the requirement for a State to notify
affected States [505(d)]. During Phase II of the acid rain
program, the Agency does not intend to waive its own right to
review affected sources under the acid rain program.
2. The Agency Review and State Response
The Act authorizes EPA to object to any permit that would
not be in compliance with the applicable requirements of the Act.
If EPA objects within 45 days after receiving either the proposed
State permit or the notice that the permitting authority has
refused to adopt an affected State's recommendations for the
permit, the permitting authority must respond to EPA in writing.
The EPA must provide the permitting authority and permit
applicant a statement of reasons for the objection [505(b)(1)].
The permitting authority may not issue a valid title V
permit if EPA has objected unless the permitting authority
revises the permit to meet EPA's objections. The permitting
authority has 90 days after EPA's objection to revise the permit.
If the permitting authority fails to do so, EPA must issue or
deny the permit [505(c)].
3. Judicial Review and Public Petition
An approvable program must provide for judicial review in
State court of the permit action. Such review must be available
to the applicant, anyone who participated in the public
participation process, and any other person who could obtain
judicial review of the action under State law [502(b)(6)].
Within 60 days after the expiration of the 45-day EPA review
period, any person may petition the Administrator to veto a
permit if EPA fails to object. The objections in the petition
must have been raised during the public participation period on
the permit provided by the State issuance process, unless the
petitioner shows that it was impracticable to raise the
objections at that time. The petition does not postpone the
effectiveness of a permit that has been issued.
The Administrator must grant or deny a petition within 60
days after it is filed. If the permit has not been issued, EPA
must issue an objection if the petitioner demonstrates to the
satisfaction of the Administrator that the permit is not in
compliance with the Act. If the permitting authority has already
issued the permit and the petition is granted, EPA will modify,
terminate, or revoke the permit, and the permitting authority may
issue a revised permit only if it meets EPA's objection
[505(b)(3)]. If the Administrator denies the petition, the
denial is subject to review in the Federal Court of Appeals under
section 307 [505(b)(2)].
Where EPA objects to a permit and the State fails to meet
EPA's objection, EPA must then issue or deny the permit. The
Federal Court of Appeals may review EPA's final action in issuing
or denying the permit under section 307. Title V provides that
EPA's objection to a permit is not subject to judicial review
until EPA takes final action on the permit [505(c)].
4. Reopenings
Any approvable program, at a minimum, must require that the
permitting authority will revise all major source permits with a
remaining life of 3 or more years to incorporate applicable
requirements under the Act that are promulgated after issuance of
the permit. Such revisions must be made using the revision
procedures that meet the requirements for permit revision and
must be made within 18 months after the promulgation of the new
requirement. No revision is required if the effective date of
the requirement is after the expiration of the permit term
[502(b)(9)]. Approvable programs also must require that the
permitting authority may terminate, modify, or revoke permits for
cause [502(b)(5)(D)]. "Cause," as defined in the rule, may exist
when the permit contains a material mistake made in applying the
emissions standards or limitations, or in other permit
requirements.
Phase II acid rain permits will need to be reopened to
incorporate NOx provisions. Excess emission offset plans and
all allowance allocations and transfers, however, must be deemed
incorporated into each unit's permit, upon recordation or
approval by the Administrator, without further permit revision
and review.
If EPA finds that cause exists to reopen a permit, EPA must
notify the permitting authority and the source. The permitting
authority has 90 days after receipt of the notification to
forward to EPA a proposed determination of termination,
modification, or revocation and reissuance of the permit. The
EPA may extend the 90-day period for an additional 90 days if a
new application or additional information is necessary. The EPA
then may review the proposed determination under the review
procedures of permit issuance. If the permitting authority fails
to submit a determination or if EPA objects to the determination,
EPA may terminate, modify, or revoke and reissue the permit. The
EPA must provide notice and "fair and reasonable procedures" when
it terminates, modifies, or revokes and reissues a permit
[505(e)].
5. Permit Revisions
Taking the above into account, the EPA today outlines the
mechanisms for permit modification and administrative amendments
that are needed to revise the part 70 permit to accommodate
changes which would otherwise violate terms and conditions of the
permit. While States are required to provide for expeditious
permit revisions, they have considerable flexibility in doing so.
The State shall provide adequate, streamlined, and reasonable
procedures for expeditiously processing permit modifications.
States may meet their obligation by adopting the approach
outlined by EPA in today's final rules or one which is
substantially equivalent.
Administrative amendments are those defined in section
70.7(a) which can be accomplished by the permitting authority
without public or EPA review. These permit revisions include
correction of typographical errors or changes in address or
source ownership. Another type of administrative amendment
involves the incorporation of requirements established under
State preconstruction review that meets procedural requirements
that are applicable and substantially equivalent to those
contained in sections 70.7 (discussed below) and 70.8 and the
compliance requirements contained in section 70.6 (e.g.,
monitoring, recordkeeping, reporting, and compliance
certification).
The EPA's description of the most streamlined process it
would approve for all other types of permit revisions is set
forth in section 70.7(e). It employs two types of permit
modification procedures:
(a) Minor permit modifications, and
(b) Significant permit modifications.
These are for changes that go beyond the activities allowed in
the original permit or that increase the total emissions allowed
under the permit.
The model provision contained in section 70.7(e) defines the
types of permit modifications that a State could decide to
process through minor permit modification procedures. They
include modifications that reflect increases in permitted
emissions that do not amount to modifications under any
requirement of title I and that do not meet certain other
requirements. Minor permit modification procedures require that
a source provide advance notice of the proposed change, but allow
a change to take effect prior to the conclusion of the revision
procedures.
Under EPA's model procedures for minor permit modifications,
changes may be made by the source after it files a complete
application with the permitting authority. The proposed
modification will be available for review by EPA, affected
States, and the permitting authority. The State may approve the
proposed modification at any time. The EPA has 45 days from the
date the Agency receives notice from the State to review the
proposed modification, and the permitting authority cannot
finally issue the permit until after EPA's review period has
ended, or until EPA has notified the permitting authority that
EPA will not object to the issuance of the permit modification,
although the permitting authority may disapprove the modification
prior to that time. The modification procedures must generally
be completed and final action taken by the permitting authority
no later than 90 days following the filing of a complete
application.
The regulation also provides an opportunity for the
permitting authority to modify the minor permit modification
procedures to process in groups applications for changes at the
lowest levels of emissions increases (as defined in the
regulation). The regulation provides that a source may request
in its application that changes, below a set threshold, be
aggregated during a 90-day period, or until they reach the
applicable threshold level, whichever comes first. These changes
would then undergo the minor permit modification process,
including review by the permitting authority, affected States,
and EPA.
Under the minor permit modification option outlined by EPA,
a source that makes a change before a permit revision has issued,
does so at its own risk. It is not protected from underlying
applicable requirements by any shield. It is afforded only a
temporary exemption from the formal requirement that it operate
in accordance with the permit terms that it seeks to change in
its modification application. Should the permitting authority or
EPA ultimately reject the sources proposed permit modification,
the source would be subject to enforcement proceedings for any
violation of these requirements. The permit shield under section
70.6(f) does not apply to minor permit modifications issued by
the permitting authority.
The other type of permit modification procedures described
are for significant modifications. After receipt of an
application for a significant permit modification, a permitting
authority would review only the specific changes proposed in the
application and their impact on the continued compliance of the
part 70 source with all applicable requirements of the Act.
Sources subject to requirements of the acid rain program
must hold allowances to cover their emissions of SO2. These
sources will have conditions in their permits prohibiting
emissions exceeding the number of allowances held. Sources
holding emissions allowances under the acid rain program may buy,
sell, or trade those allowances. Allowance transactions
registered by the Administrator will be incorporated into the
source's permit as a matter of law, without following either the
permit modification or amendment procedures described above.
6. Permit Renewal
Each permit is to have a fixed term not to exceed 5 years
(except that permits for municipal waste combustors may have
terms up to 12 years). Renewal permits are subject to the same
requirements as those applying to initial permits, including the
requirement for a timely and complete application and for a
compliance plan and processing by the permitting authority within
18 months of a complete application.
The source will be able to operate after expiration of the
permit only if it has submitted a timely and complete application
for a new permit, as mentioned in the previous discussion on
complete applications. To maintain the protection afforded by
having a complete application, the source applicant still must
respond in a timely fashion upon written request by the
permitting authority to provide additional information needed to
develop and issue the permit. Should a permit expire before a
source submits a timely and complete application, the source's
right to operate is terminated unless and until a part 70 permit
is issued by the permitting authority [503(d)]. The application
must be deemed to be complete 60 days from the date of its
submission to the permitting authority, unless the permitting
authority has already determined that the application is not
complete. In addition, consistent with the established precedent
in the National Pollutant Discharge Elimination System (NPDES)
program under the CWA, where the fixed term of a permit has
expired, the permitting authority must provide either that the
permit remains effective or that the conditions of the permit
remain enforceable until the permit is reissued, except as
provided in regulations promulgated pursuant to title IV for the
acid rain portions of a permit.
F. Fee Determination and Certification
A key requirement of State operating permit programs is that
States establish an adequate permit fee program. Regulations
concerning fee programs and appropriate criteria for determining
the adequacy of such programs are set forth in section 70.9.
An approvable permit program must require part 70 sources to
pay an annual fee (or the equivalent over some other period)
sufficient to cover all "reasonable (direct and indirect) costs"
required to develop and administer the permit program
[502(b)(3)(A)]. All fees required to be collected under title V
must be used solely to support the permit program
[502(b)(3)(C)(iii)]. The EPA has ruled that these fees must
cover a range of costs, including:
1. Preparing generally applicable regulations or guidance
regarding implementation of the program or its enforcement.
2. Reviewing and acting upon any title V application.
3. General administrative costs of running the permit program,
including information management activities to support and track
permit applications, compliance certifications, and related data
entry.
4. Implementing and enforcing the terms of the permit, excluding
any court costs or other costs associated with an enforcement
action and including adequate resources to determine which
sources are subject to the program.
5. Emissions and ambient monitoring.
6. Modeling analyses and demonstrations.
7. Preparing inventories and tracking emissions.
8. Development and administration of the State small business
stationary source technical and environmental compliance
assistance program as it applies to the title V permitting
obligations of part 70 sources [502(b)(3)7(A)(i)-(vi)].
The program will be presumed adequate if it would collect in
fees an amount equal to or greater than the presumptive minimum
program cost, which is $25 per ton per year (tpy) (1989 baseline)
for the actual emissions of each regulated pollutant (for
presumptive fee calculation). Regulated pollutants (for
presumptive fee calculation) mean all regulated air pollutants,
with the exception of carbon monoxide, pollutants subject only to
section 112(r), and pollutants which are solely regulated as
chlorofluorocarbons (CFC) under section 602 [502(b)(3)(B)(i) and
(ii)]. In addition, the State is not required to count emissions
of any pollutant from any one source in excess of 4,000 tpy
[502(b)(3)(B)(iii)] or emissions that are already accounted for
within the emissions of another regulated pollutant (although the
State is not precluded from doing so). The State need not
collect the presumptive minimum program cost if it demonstrates
that a lesser amount will adequately support the direct and
indirect costs of the program [502(b)(3)(B)(iv)]. Conversely,
States must make a sufficient showing of fee adequacy if
commenters present evidence to the Administrator during the
program approval process which rebuts the presumption that
$25/tpy is adequate to support the program. The permitting
authority must provide for a periodic accounting of how the
required fees were used solely to support the program and how
they meet the presumptive minimum described above.
The EPA interprets title V to offer permitting authorities
flexibility in setting variable fee amounts for different
pollutants or different source categories, as long as the sum of
all fees collected is sufficient to meet the reasonable direct
and indirect costs required to develop and administer the
provisions of title V of the Act, including section 507 as it
applies to part 70 sources. The $25/tpy used to calculate the
presumptive minimum program cost is to be increased each year
according to the Consumer Price Index (CPI) at the time the index
is published as defined by section 502(b)(3)(B)(v). Nothing in
this section is intended to provide States any additional
authority (beyond what is otherwise authorized under State law)
to levy fees beyond the amount necessary to offset the program
costs of title V.
Section 408(c)(4) of the Act provides that during the years
1995 through 1999, 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. The Agency interprets this provision to mean that EPA may
not approve part 70 programs that offset required permit program
costs using emissions-based fees collected from affected units,
under section 404, from 1995 to the year 2000.
If EPA determines that a State's fee program is not
approvable, or that a State is not adequately administering or
enforcing an approved fee program, EPA may collect reasonable
fees from permittees. Such fees shall be designed solely to
cover EPA's costs of administering the Federal permit program
[502(b)(3)(C)(i)]. Sources failing to pay a fee assessed by EPA
must pay a penalty of 50 percent of the fee amount, plus interest
[502(b)(3)(C)(ii)]. The EPA must deposit federally-collected
fees, penalties, and interest in a special Treasury fund, subject
to appropriation, to carry out EPA's permitting activities.
G. Federal Oversight and Sanctions
Federal activities for oversight of State operating permit
programs include situations where a State fails to submit an
approvable permit program, or EPA determines that a permitting
authority is inadequately administering and enforcing a permit
program or an approved permit fee program.
1. State Failure to Submit a Program
The EPA must apply sanctions to a State where the Governor
has not submitted a program within 18 months after the deadline
for submittal, or where 18 months have passed since EPA
disapproved the program in whole or in part [502(d)(2)(B)]. The
sanctions are the same as those in title I: a highway funding
cutoff, and a two-to-one offset ratio for new or modified sources
[179(b)] applicable to certain nonattainment areas. A sanction
may be applied any time during the 18-month period following the
date required for program submittal or program revision
[502(d)(2)(A)]. The EPA must apply one of these sanctions after
the above-referenced periods elapse. If the State has no
approved program 2 years after the date required for submission
of the program, EPA must promulgate, administer, and enforce a
Federal permit program for the State [502(d)(3)].
If the EPA determines that a State's program is not
approvable or that a permitting authority is not adequately
administering an approved program, the EPA will promulgate a
Federal permit program which the Agency will administer and
enforce where the State fails to submit, correct, or implement
its program. The Agency has the authority to collect reasonable
fees from the permittees to cover the costs of administering the
program. Any source that fails to pay fees shall be subject to
additional penalties. Fees, penalties, and interest collected by
the EPA will be deposited in a special U.S. Treasury fund for
permitting activities and held for future appropriation.
2. State Failure to Implement a Program
Whenever EPA determines that a permitting authority is not
adequately administering and enforcing a program, EPA must notify
the State [502(i)(1)]. If EPA determines that the failure to
administer and enforce the program persists 18 months after EPA's
notice to the State, EPA must apply the same sanctions in the
same manner as required for a failure to submit an approvable
program [502(i)(2)]. The EPA has the option of imposing any one
of the sanctions before the 18-month period has passed
[502(i)(1)]. If the State has not cured the failure to
administer and enforce the program within 18 months after EPA's
notice, EPA must promulgate, administer, and enforce a Federal
permit program within 2 years after the notice to the State
[502(i)(4)].
H. Required Enforcement Authority
Section 70.11 sets forth the enforcement authority required
for an approvable part 70 program. It requires permitting
authorities to have authority to seek and impose civil penalties
and criminal fines as well as injunctive relief.
I. Permit/SIP Relationship
The SIP remains the basis for demonstrating and ensuring
attainment and maintenance of the national ambient air quality
standards (NAAQS). The permit program collects and implements
the requirements contained in the SIP as applicable to the
particular permittee. Since permits must incorporate emission
limitations and other requirements of the SIP, all SIP provisions
applicable to a particular source will be defined and collected
into a single document. The applicable requirements in the
permit would include any recent SIP changes, whether as a result
of a State or local SIP revision or of a FIP action by EPA. The
EPA intends to assist in the implementation of the permit program
through the use of model permits for numerous source categories,
including model general permits as discussed below in section
I.V.F addressing general permits.
As previously discussed, title V affords significant
operational flexibility. The relationship between title V
permits and SIP's is a key factor in determining the extent to
which operational flexibility is available to sources, since each
permit, in part, must assure compliance with the applicable
implementation plan. The EPA recognizes that it will take time
to complete the transition from a regulatory system where SIP's
are the primary tool for implementing and enforcing the Act, to
one where operating permits ultimately assume primary
responsibility for implementation and enforcement.
The EPA is considering what means will aid in ensuring a
smooth transition to increasingly general, and thus more
flexible, SIP's, which may allow permits rather than the SIP's to
specify the details of how SIP limits and objectives apply to
subject sources. In particular, EPA will be seeking to develop
information in the following areas:
1. The most efficient ways of implementing requirements of SIP's
through permits, such as moving detail from SIP's to permits;
2. Flexible ways for sources to demonstrate compliance with
reasonably available control technology (RACT) limits, such as
through the use of protocols for defining equivalency or through
the development of equivalency determinations in the permitting
process (as discussed below); and
3. Expanded use of emissions trading and marketable permits to
achieve SIP objectives as well as providing a stable accounting
mechanism for tracking and enforcing emissions reductions at a
source.
The EPA encourages the development of more flexible SIP's.
For example, in the final rule, section 70.6(a)(8) provides that
no permit revision is required for emission trades in economic
incentive or marketable permit programs, provided that the permit
contains a program or process for implementing the trade. Thus,
a SIP containing a generic trading rule and a replicable
procedure for implementing the rule through a permit may allow
trading to occur without a permit revision, provided the permit
contains the replicable procedure. This is similar to the way in
which permits allow sources to shift among alternate scenarios
that were initially provided for in the permit. If States choose
to implement trading in this manner, the provisions of the permit
allowing the trades must incorporate all of the procedural
protections contained in the underlying SIP.
As discussed in the section on operational flexibility,
States may also elect to develop SIP's that set forth trading and
compliance provisions that sources could use to comply with SIP
limits after 7-days notice. The SIP would have to include
compliance requirements and procedures for the trade which are
sufficiently specific to demonstrate compliance. Such provisions
can prove useful to sources in cases where permits do not already
provide for emission trades.
J. New Source Review/Title V Relationship
Decisions made under the NSR and/or PSD programs [e.g., best
available control technology (BACT)] define certain applicable
SIP requirements for the title V source. The permitting
authority is required to have reasonable procedures and resources
to assign priority to action on permits for new construction or
modification [503(c)].
Under today's final rule State and local permitting
authorities have the option, but not a mandate, to integrate
requirements determined during preconstruction review with those
required under title V. Such integration would be consistent
with the previously stated implementation goals of combining
programs and building on existing State programs which typically
have already accomplished such integration at the State level.
As discussed above, if NSR is integrated with the procedural and
compliance-related requirements contained in sections 70.6, 70.7,
and 70.8 (including opportunity for EPA and affected State
review), an existing title V permit can be administratively
revised to reflect the results of the integrated NSR process.
K. Small Businesses
The EPA has given serious consideration in this rulemaking
to minimizing any undue impacts on small businesses.
Accordingly, except for acid rain sources and municipal waste
incinerators, EPA has allowed States to temporarily defer the
title V permitting obligation of all nonmajor sources which would
have been otherwise subject to title V provisions. This deferral
will continue for such categories of nonmajor sources until the
Agency has completed a rulemaking to consider whether a permanent
exemption, continued deferral, or applicability of the permit
program would be appropriate. In addition, States can exempt
from review on a permanent basis those nonmajor sources and
source categories which are subject to title V solely because
they are subject to NSPS for new residential wood heaters and the
NESHAP for asbestos demolition and renovation activities.
For those small businesses still required (or opting) to
obtain a permit, and for other appropriate source categories, EPA
is promoting the use of general permits where possible. A
general permit is a single permitting document which can cover a
category or class of many similar sources. Public participation
and EPA and affected State review must be provided by the
permitting authority before issuing a general permit [504(d)],
but not when the individual sources subsequently submit requests
for coverage and are evaluated for a permit reflecting the terms
of the general permit. The permit issuance process for eligible
sources can thus be greatly simplified, which substantially
reduces the administrative burden on both sources and the
permitting authority.
Section 507 requires States to establish a small business
stationary source technical and environmental compliance
assistance program. The program must be adopted as part of the
SIP consistent with sections 110 and 112. The States must submit
the proposed program within 2 years after enactment of title V
[507(a)]. The State must also establish a Compliance Advisory
Panel to monitor implementation of the program [507(e)].
The State or EPA may reduce any fee required under the Act
for small business stationary sources [507(f)]. When developing
regulations or control technique guidelines (CTG) which require
CEMS, EPA must consider the appropriateness of requiring CEMS at
such sources. This provision does not apply to CEMS under the
acid rain provisions of title IV [507(g)]. The EPA must also
consider the size, type, and technical capabilities of such
sources and economic feasibility of the regulations when
developing a CTG [507(h)].
L. Relationship with Section 112 (Air Toxics)
The operating permit program will implement standards issued
under section 112 as it existed prior to the Act amendments of
1990, as well as future standards to be promulgated under section
112 as it was revised by the Act amendments of 1990 which
describe requirements for the use of maximum achievable control
technology (MACT), generally available control technology (GACT),
and any technology used to reduce unreasonable residual risk. As
noted earlier, a major source under section 112 is defined as any
stationary source (or group of stationary sources), located in a
contiguous area and under common control, which has the potential
to emit 10 tpy or more of any hazardous air pollutant, 25 tpy or
more of any combination of these pollutants, or a lesser quantity
of a given pollutant if the Administrator so specifies.
The State permit program submittal is required to contain a
legal opinion affirming the adequacy of existing legal authority
to implement and enforce section 112 provisions. Each title V
permit must in part assure compliance with these provisions as it
must with all other applicable requirements of the Act. State
law must allow a State to accept delegation of authority to
implement and enforce MACT standards; to impose case-by-case
determinations of MACT for new, reconstructed, or modified
sources where no applicable emissions limitations have been yet
established [112(g)]; and to develop and enforce case-by-case
determinations of MACT where EPA fails to issue a standard for a
major source category or subcategory within 18 months of the
scheduled promulgation date [112(j)]. Section 112(g) of the Act
requires the Administrator to "establish reasonable procedures
for assuring that the requirements applying to modifications are
reflected in the permit." The EPA will establish these
requirements in the upcoming section 112(g) rulemaking.
The EPA notes that some States may have certain procedural
requirements they must satisfy before the State has the ability
to impose Federal Clean Air Act requirements in a State-issued
permit. Although some States may be able to take delegation of
Federal requirements for MACT standards very freely, others may
have to go through State rulemaking or other administrative
approval processes before having authority to impose Federal
requirements in a permit. The EPA encourages States to examine
their procedures for implementing current and newly promulgated
Federal requirements. In most cases new Federal standards, such
as new MACT standards, will be promulgated with sufficient notice
and sufficiently long compliance schedules that a State will have
time to follow reasonable procedures implementing the standard.
As long as the State is able to issue in a timely manner permits
that assure compliance with the applicable requirements of the
Act, the program is approvable under title V and these
regulations. If a State's procedures are such that the State is
not able to implement Federal requirements in time to issue
complete permits, the EPA must determine whether the State is
properly implementing the title V program.
The operating permit program will also be the principal
long-term mechanism for implementing alternative emissions
limitations for sources under section 112(i)(5) of the Act. This
section provides an extension for existing sources to comply with
otherwise applicable standards for hazardous air pollutants,
provided certain criteria concerning early reductions are met.
The Administrator or a State acting pursuant to a title V permit
program is required to issue a permit allowing an existing source
(for which the owner or operator demonstrates that the source has
achieved a reduction of 90 percent or more in emissions of
hazardous air pollutants, 95 percent in the case of particulate
hazardous pollutants, from the source) to meet an alternative
emissions limitation reflecting such reduction in lieu of
complying with a standard under section 112(d) within the time
period provided in the standard. This extension would apply for
a period of 6 years from the compliance date for the otherwise
applicable standard, provided that the reduction occurs before
the standard is proposed. The one exception is specified in
section 112(i)(5)(B) wherein existing sources that prior to
proposal make a federally-enforceable commitment to achieve the
reductions, can have until January 1, 1994, to achieve the
reduction. For permit applications to ensure effective
implementation of section 112 without placing sources in undue
jeopardy of violating a hazardous air pollutant standard
involving early reduction demonstrations according to section
112(i)(5) of the Act, the permitting authority is required to
issue the permit within 9 months of receipt of a complete
application.
M. Relationship with NPDES Program
The proposal solicited comment on whether there should be a
presumption for resolving title V implementation issues
consistent with relevant experience in the NPDES program.
Commenters stated that, although NPDES experience is in many
cases useful, the creation of a presumption is not a sufficiently
flexible approach given the dissimilarities between the two
programs. The EPA recognizes the significant dissimilarities
between title V and the NPDES program. While EPA will continue
to look to the NPDES program for guidance, EPA agrees with
commenters that NPDES precedent should not be presumed binding
for purposes of decisions made in the implementation process for
the title V program.
N. Relationship with Title IV (Acid Rain)
Eventually title IV mandates implementation of an acid rain
control program to be carried out through operating permits
issued under title V as modified by title IV. Final rule
promulgation for regulations to implement the entire acid rain
program is required within 18 months after enactment. The acid
rain permits regulations are expected to cover a wide range of
topics, including:
1. Acid rain specific requirements for permits and compliance
plans (emissions limits, deadlines, monitoring);
2. Additions to State part 70 program approval criteria specific
to the acid rain program;
3. Requirements for alternative compliance methods (e.g., phase
I extensions, reduced utilization, substitution units, energy
conservation, phase II repowering, etc.);
4. Compliance certification reporting requirements;
5. Requirements for designated representatives.
In addition, acid rain emissions monitoring requirements, and
excess emissions offset planning and penalty requirements, must
be specified in the permit.
The general relationship between titles IV and V is governed
by three important provisions of the Act. Sections 506(b) and
408(a) state that the requirements of a title V program will
apply to the permitting of affected sources under the acid rain
program, except as modified by title IV. In addition, as
provided in section 403(f), compliance with the acid rain program
requirements will not exempt or excuse the owner or operator of
any source subject to those requirements from compliance with any
other applicable requirements of the Act (e.g., SIP, PSD/NSR,
NSPS).
Permits will be issued to affected sources under the acid
rain program in two phases. EPA will issue phase I permits in
1993, which will become effective on January 1, 1995. These
permits, and all permits issued to acid rain affected sources,
will have an effective permit term of 5 years. Regulations
describing phase I Federal permit issuance procedures are
required to be promulgated within 18 months of enactment. Phase
II permits will be issued by States with approved title V
programs beginning in 1997. State-issued permits will be issued
in accordance with the procedures defined in this part, as
supplemented by the future acid rain regulations. Should a State
fail to adequately administer the phase II program, EPA will take
back the entire permit program. The EPA will then implement the
Federal title V regulations for permit issuance, as supplemented
by Federal acid rain permit issuance procedures, and will issue
permits to acid rain sources within that State.
During phase I, approximately 110 affected sources, having
more than 261 individual units, will have to be permitted. The
units at these sources will receive marketable allowances for SO2
emissions, as specified in section 404, Table A of the Act. In
addition, other units may become subject to phase I under one of
several phase I compliance options. Phase I permit applications
are to be submitted to the EPA Regional Office by February 15,
1993. Phase I permits will become effective on January 1, 1995.
It is likely that many part 70 State programs will be approved
after EPA has issued phase I permits.
Under part 70, within 3 years after EPA approval of a State
permit program, the State will be required to issue permits
covering all applicable requirements of the Act, to all sources
in its jurisdiction, including sources subject to the acid rain
program. If a State does not have an approved part 70 program by
July 1, 1996, EPA is required to issue the first round of phase
II SO2 permits by January 1, 1998. If a State receives program
approval after July 1, 1996, and EPA determines that the State
can satisfactorily review and issue phase II SO2 permits by the
end of 1997, EPA may delegate this responsibility to the State.
The effective date for phase II SO2 permit requirements will be
January 1, 2000. Phase II NOx applications are due on January 1,
1998. The permitting authority (the State or EPA) will have to
reopen the previously-issued phase II SO2 permit before January
1, 2000, to add those limits to the permit.
IV. Discussion of Regulatory Changes
This portion of the preamble is organized according to the
sections of part 70, and discusses the principal regulatory
changes made in the final rules in response to public comments.
This portion of the preamble focuses on the rationale for these
changes.
A. Section 70.1 - Program Overview
This section of the regulation introduces certain concepts
underlying the regulatory requirements of part 70. These
concepts include implementation principles utilized in regulatory
development.
Few comments were received on this proposed section;
however, several commenters supported EPA's recognition of the
implementation principles contained in the proposal and urged
that the final regulation be as consistent as possible with them.
One commenter suggested that environmental protection occur in
conjunction with enhancing the productive capacity of the nation.
The Administrator agrees that enhancement of the nation's
productive capacity is an important concept that should be
incorporated into the first implementation principle. This is
consistent with section 101(b)(1) of the Act which states that
among its goals is one to protect and enhance the quality of the
nation's air resources so as to promote the public health and
welfare and the productive capacity of its population. The
Administrator expects these principles to guide subsequent
implementation of these final regulations as they have governed
regulation development.
B. Section 70.2 - Definitions
Many definitions of terms in other parts of the Act or EPA
regulations are utilized in part 70. In addition, a number of
new terms created in conjunction with developing the part 70
regulations are defined by this section. These new definitions
include terms necessary to communicate effectively the new
regulatory requirements.
Several significant comments were received on how the
definitions would be applied in various sections of the
regulation. In responding to these commenters, some important
changes to key definitions have occurred. Important changes were
made to definitions of "applicable requirement" and "regulated
pollutant." Several new terms, "section 502(b)(10) changes,"
"emissions allowable under the permit," "permit program costs,"
"part 70 program," and "regulated pollutant (for presumptive fee
calculation)," were added to the definitions. Separate
discussions of those changes are contained in the sections
describing the program areas where these definitions are
primarily used. In addition, some terms have either been moved
from the proposed definitions or added in response to comment for
exclusive use in a particular section. These include
administrative amendment (section 70.7), actual emissions
(section 70.9), and complete application (section 70.5).
C. Section 70.3 - Applicability
1. Five-Year Exemption for Nonmajor Sources
Section 502(a) of the Act provides the Administrator the
discretion to exempt one or more source categories (in whole or
in part) from the requirement to obtain a permit "if the
Administrator finds that compliance with such requirements is
impracticable, infeasible, or unnecessarily burdensome on such
categories." The Act specifies that major sources may not be
exempted from these requirements.
The EPA initially proposed, consistent with the authority
given in section 502(a), to allow States to exempt all nonmajor
sources (other than acid rain affected sources) from the
requirement to obtain a permit for 5 years from the date of State
program approval. The proposal made the exemption for nonmajor
sources in nonattainment areas contingent upon a showing by the
permitting authority that title V operating permits were not
necessary for the State to assure compliance with the
implementation plan obligations applicable to defined sources.
The EPA also reserved the ability to determine in future
rulemakings whether permitting obligations should be deferred for
nonmajor sources which become subject to new section 112
standards.
Section 70.3(b)(1) of the final part 70 regulations retains
most of the provisions of the proposal and provides States the
option of exempting all nonmajor sources (except for affected
sources and solid waste incineration sources) from the
requirement to obtain a permit until EPA completes the rulemaking
described below on applying the permitting program to non-major
sources. As discussed below, EPA will complete this rulemaking
within five years of the date it first approves a State program
that defers such sources. A State may choose to provide the 5-
year temporary deferral to all "nonmajors" or to nonmajors only
in selected source categories. The deferral may not be extended
to any major source, as this is explicitly prohibited by section
502(a) of the Act. As proposed, the final rule also specifies
that no affected source under the acid rain program can be
exempted from the requirement to obtain a title V permit, since
section 408(a) provides that permits shall be the vehicle for
implementation of the acid rain requirements of the Act.
One change in the proposal is that solid waste incineration
units that are nonmajor sources can be deferred only until the
time they are required to obtain permits under section 129(e) of
the Act. States should not be allowed to override the Act's
specific schedule for permitting this specific source category.
The EPA finds that without this deferral, compliance with
the permitting requirements would be "impracticable, infeasible"
and "unnecessarily burdensome on these source categories" within
the meaning of section 502(a). Two independent and sufficient
reasons support EPA's determination. The first was presented in
the preamble to the proposal, i.e., the burden on the permitting
authorities and EPA will make permitting all nonmajor sources in
the early stages of the program impracticable and infeasible.
The second reason, which by itself justifies deferral, is that
the requirement for nonmajor sources to obtain a title V permit
during the early stages of the program would be "unnecessarily
burdensome" for these sources. This is because the anticipated
burden on permitting authorities and EPA, as described in the
preamble to the proposal, would translate into a significant,
additional, and unnecessary burden on nonmajor sources if they
were required to be permitted.
Nonmajor sources will be disproportionately affected by the
administrative difficulties faced by the permitting authorities.
The great majority of nonmajor sources are small businesses, and
many are not currently subject to State air permit programs.
Nonmajor sources will require more assistance from permitting
authorities and EPA because of the relative lack of technical and
legal expertise, resources, as well as inexperience in dealing
with environmental regulation that characterizes most small
businesses. If permitting authorities become overburdened due to
a backlog of thousands of permits to be processed, nonmajor
sources will be unable to obtain additional technical and
procedural assistance from permitting authorities. Although the
small business technical assistance program should help these
sources, the small business program staff will also be assisting
small businesses that are major sources and will face the same
problems as permitting staff.
Difficulty in obtaining assistance will unnecessarily burden
nonmajor sources in various ways. For example, difficulty in
obtaining assistance from permitting authorities could make it
problematic, if not impossible, for some nonmajor sources to
submit a timely and complete application. If they fail to submit
a timely and complete application, they would lose the
"application shield," thereby forcing them to close or run the
risk of operating without a permit in violation of the Act.
Nonmajor sources' inexperience with permitting and their relative
lack of technical and legal resources also make it more likely
that such sources will require more permit revisions soon after
permit issuance. If permitting authorities are overburdened, it
will be difficult for nonmajors to obtain permit revisions early
in the process. This will prevent them from promptly making what
they believe are necessary changes.
The EPA notes that some nonmajor sources would already be
permitted at the State level, and therefore would have some
experience with the permitting process and completing permit
applications. A State need not extend the deferral to these
sources. However, even these sources will have to deal with the
increased burdens flowing from the requirements of other titles
of the Act. The EPA also notes that an alternative to deferral
under section 502(a) exists in the form of general permits.
However, even for source categories well-suited to general
permits, there will likely be some burden in complying with these
requirements.
As stated above, EPA expects that the great majority of
nonmajor sources will be small businesses. Some nonmajor sources
will in fact be either adjuncts to large corporations possessing
significant technical and legal expertise, or will have
independently acquired such resources and expertise. It is
therefore likely that there will be certain nonmajor sources for
which the requirements of the part 70 program may not be
unnecessarily burdensome.
While the permitting requirements will be significantly less
burdensome for these sources, EPA has determined that it is not
feasible to subject these sources to different treatment for
purposes of this deferral. This is primarily because the class
of sophisticated nonmajor sources described above bears little or
no relation to the delineation of source "categories" as that
term is used in section 502(a). Rather, EPA believes that these
sources typically represent a small percentage of each of the
various categories of nonmajor sources. Given the anticipated
lack of resources discussed above, it is not reasonable to expect
permitting authorities to sift through the large number of
nonmajor sources and select those for which the permit program
requirements will not be unnecessarily burdensome. Indeed, the
requirement to conduct such a survey would to a great extent
undercut the benefits intended by this deferral, and would not be
justified by the minor gains in emission controls resulting from
the permitting of these few nonmajor sources.
As already mentioned, States are free to apply the deferral
only to certain categories of nonmajor sources. The part 70
regulations therefore do not prevent a State from drawing
distinctions based upon which nonmajor sources have the resources
and expertise necessary to comply with the permit program.
Compelling States to permit nonmajor sources during the
early stages of the title V permitting program is not only
extremely burdensome for these sources, it is unnecessarily so.
Requiring nonmajor sources to be permitted at the beginning of
the program would not provide major benefits to air quality and
might actually hinder implementation of the Act. The temporary
exemption for nonmajor sources poses few risks to progress in
improving air quality. By definition, these sources emit less
than major sources and are less significant contributors to air
quality problems. Furthermore, deferring permitting requirements
does not defer a source's obligation to comply with the
underlying substantive air pollution control requirements.
Nonmajor sources may be subject to NSPS or existing NESHAP
regulations that in general already contain many of the same
monitoring, recordkeeping, and reporting requirements that would
apply to major sources.
Requiring nonmajors to obtain permits at the start of a
permitting program could hinder implementation of the Act. It
would stress the system by greatly increasing the number of
permits required to be processed. This additional stress would
make it more likely that errors would occur in permitting major
sources, which could adversely affect air quality. Concentrating
State permitting resources on major sources during the first
phase of the program will make more efficient use of those
resources.
Furthermore, deferring permitting requirements for nonmajor
sources temporarily does not just delay the permitting burden on
these sources, it will significantly decrease the burden. Once
the programs have been operating for several years and the
initial wave of permitting is completed, permitting staff will
have the time and experience necessary to assist nonmajor sources
which become subject to the permitting process.
Thus, the temporary exemption of minor sources furthers
important policy goals. The failure to defer nonmajors would
greatly increase the burden on those sources, would probably not
provide significant environmental benefits, would stress the
permitting system at its most vulnerable time, and might actually
hinder achievement of air quality gains. Deferring the
applicability of title V requirements to nonmajor sources
temporarily might even have a net air quality benefit to the
extent it facilitates bringing more major sources into compliance
earlier.
The EPA believes that the preceding analysis of the burden
on nonmajor sources is ample justification for the exemption
under section 502(a) being implemented here. This is
particularly so in light of the principle expressed in the
Alabama Power decision that a deferral of the applicability of
Act provisions requires far less justification than an outright
exemption [636 F.2d at 360, n. 86].
The burdens of the permitting program identified above,
including the lack of adequate resources and technical and legal
expertise on the part of sources, as well as the potential
difficulty in obtaining technical and legal assistance from
permitting authorities, are likely to continue for some
significant number of nonmajor sources beyond the early stages of
the program. Accordingly, EPA believes it would be unduly
burdensome, and in some cases onerous, to subject all such
sources to the full panoply of procedural and substantive
requirements embodied in the permit rules being promulgated
today. Although the Agency anticipates that many nonmajor
sources will qualify for general permits and thereby avoid the
greater burdens associated with obtaining specific permits, EPA
also believes it likely that a certain number of categories of
nonmajor sources should be permanently exempted from the permit
program. For others, a continuation of the deferral of program
applicability may well be appropriate. This is so despite the
support that will be offered through the Small Business Technical
Assistance Program established under section 507. While that
program will be beneficial to nonmajor sources, the extraordinary
number of nonmajor sources that could conceivably enter the
permit system at the expiration of the 5-year period, as many as
350,000 sources, could overwhelm the capacities of the State
technical assistance programs.
To address these serious concerns, EPA will, within 3 years
of the first approval of a full or partial State permit program
that defers nonmajor sources, initiate rulemaking to determine
whether to grant a further deferral from the permit program to
all or some specific categories of nonmajor sources. In
addition, the rulemaking will consider whether to grant permanent
exemptions to any source categories for which there is a
sufficient record to support such an exemption. As part of this
rulemaking, EPA, in conjunction with affected sources, will
gather information which will enable the Agency to make exemption
or deferral determinations as appropriate. Moreover, the
rulemaking will consider whether the permitting program should be
structured more effectively for nonmajor sources that may be
brought into the program at that time. The Agency believes that
after several years of experience with the title V program, both
EPA and the States will be in a better position to determine
whether the program may be structured more effectively for the
large number of small sources that may be covered by the program.
The EPA will propose such a rule no later than 4 years following
approval of the first full or partial State permit program with a
deferral, and promulgate the rule prior to EPA's first approval
of a State program that defers such sources.
2. Nonattainment Area Demonstration Requirement for 5-Year
Exemption
As mentioned above, the proposal made the 5-year deferral
for nonmajor sources in nonattainment areas contingent upon a
showing by the permitting authority that the State could
effectively enforce its SIP obligations on such sources without
using federally-enforceable operating permits. State
representatives opposed having to make a demonstration for
deferring nonmajor sources in nonattainment areas.
The final rules do not include this requirement because such
a showing is not required by the Act. Section 502(a) of the Act
makes no distinction regarding treatment of exemptions in
attainment areas versus nonattainment areas. The EPA also
determined that the proposed provision was impractical and
unnecessary. It would have demanded a significant amount of
resources from State agencies at a critical period in program
development. States said that it would have taken almost as much
effort to make the demonstration as it would to permit the
nonmajor sources. The purpose of allowing States to defer
permitting obligations for nonmajor sources would have been
dramatically undercut if a special showing were required for
nonattainment areas.
3. Permanently Exempted Source Categories
The proposed rules solicited comment on individual source
categories recommended for permanent exemptions. While several
industry commenters supported the exemption of source categories
from title V permitting, there was no consensus among these
commenters concerning which particular sources should be
exempted. The most frequently suggested source categories for
exemption included wood stoves and asbestos demolition/renovation
sites.
The EPA today is exempting two source categories: all
sources subject to regulation under the demolition and renovation
provisions of the NESHAP for asbestos (40 CFR part 61, Subpart M,
section 61.145); and all residential wood heaters subject to
regulation under the NSPS (40 CFR part 60, Subpart AAA). As with
the 5-year deferral for nonmajor sources, there are two reasons
for exempting asbestos demolition and renovation operations and
residential wood heaters. Each reason provides an independent
justification for the exemptions. First, as described in more
detail below, permitting such sources would be impracticable and
infeasible for permitting authorities. Second, permitting such
sources poses an unnecessary burden for these sources.
Additionally, exempting these source categories furthers an
important goal of the Agency's implementation of the Act: it
minimizes disruption of many existing State programs. Several
State permitting programs already exempt both categories from
their own permitting programs. The EPA has typically deferred
the responsibility for addressing situations involving the
regulation of residential sources to State and local agencies.
In addition, requiring permits from both of these source
categories would involve the practical problem of determining who
would be permitted. Would EPA require permits from each
individual demolition operation or wood heater owner, or from
demolition/renovation contractors and wood heater manufacturers?
Either way presents numerous practical problems. Additional
support for exempting these specific source categories is
provided below.
(a) Asbestos demolition and renovation operations. Many
owners and operators of asbestos demolition and renovation
operations may have "ownership" of such a source only briefly.
It would be difficult and burdensome for individual owners and
operators to obtain permits for one-time demolition and
renovation operations with which they are associated.
Conversely, other owners or contractors may be associated with
many temporary operations during the term of any permit, and this
scenario would involve the difficulties related to permitting
temporary sources. Permitting asbestos demolition and renovation
operations would also be difficult because these activities often
commence at a particular site after relatively short notice.
Waiting for a title V permit to undergo the entire permit
issuance process could cause serious disruptions for owners and
operators.
The burden imposed by requiring permits for asbestos
demolition and renovation sources is unnecessary because it would
provide few additional environmental or enforcement benefits.
The EPA and delegated States under the NESHAP receive advance
notice of all regulated demolition or renovation operations.
Enforcement personnel are able to target and prioritize
inspection resources and monitor compliance with NESHAP work
practice standards. The EPA and the States also receive waste
disposal documentation verifying proper disposal at EPA-approved
disposal sites. Because of the temporary nature of these
sources, permits issued to them would likely only require
compliance with the NESHAP work practice standards because
additional reporting or recordkeeping requirements would be
unnecessary. No monitoring in the traditional sense would be
required because the asbestos NESHAP is a work practice standard,
not an emissions limitation.
(b) New residential wood heaters. The EPA finds that a
permanent exemption for new residential wood heaters subject to
the NSPS is appropriate because of the burden that federal
permitting would place on homeowners, distributors, manufacturers
and permitting authorities alike. First, requiring permits from
all subject residential wood heaters (likely numbering in the
hundreds of thousands) in attainment and nonattainment areas
across the country would require a significant allocation of
resources from both homeowners and permitting authorities to
achieve relatively minimal air quality benefits in some areas.
Because the problems associated with particulate matter and
hazardous air pollutant emissions from wood heaters tend to be
very localized in nature, the EPA believes that a requirement to
obtain a permit for owners of residential wood heaters subject to
the NSPS is unnecessary in some areas and should remain in the
discretion of State and local agencies. Some local agencies in
nonattainment areas have already successfully employed permitting
programs for these sources as part of their attainment
strategies.
Second, if homeowners were required to obtain a title V
permit, they would likely be required to provide verification
that they were in compliance with certain installation and/or
fuel quality requirements. This might involve expensive
inspections or laborious recordkeeping. It would be
unnecessarily burdensome for private citizens to comply with such
requirements. The frequent transfer of residential ownership
could also complicate compliance efforts. If wood heater
manufacturers or distributors were the permittees, there would be
no practical way for wood heater performance in residential
locations to be monitored. Third, the permitting of new
residential wood heaters by permitting authorities could prove to
be extremely resource intensive. The large number of permittees
affected would likely experience problems in obtaining technical
assistance from the permitting authority, which would make
obtaining a permit more burdensome for homeowners. Effectively
determining the number and location of all wood heaters in a
given jurisdiction would be a complicated task. There are
hundreds of thousands of such sources throughout the country.
Many State and local agencies in areas where wood stoves are a
significant concern have already developed non-regulatory public
information, outreach, and voluntary control programs. Adding
the additional burden of permitting these numerous sources would
likely not be an efficient use of agency resources.
4. Definition of "Regulated Air Pollutant"
The proposal defined "regulated pollutant" to mean
substances for which a standard has been promulgated under the
Act. The term regulated pollutant was used in the proposed
regulation in describing what information is required in permit
applications and permits. This caused confusion because the Act
defines the term "regulated pollutant" differently and uses it
specifically for calculating fees. To avoid this confusion, the
final part 70 regulations use the term "regulated air pollutant"
to describe the information required for permit applications and
permits, and the term "regulated pollutant (for presumptive fee
calculation)" for use in calculating fees.
The term "regulated air pollutant," as now defined,
accurately reflects all pollutants subject to a standard,
regulation, or requirement. This term is used specifically in
the regulations to describe what information is required in a
permit application and in a permit. As now applied in the
regulations, the revised definition will ensure that the
permitting authority receives complete information on all
pollutants which are "regulated" under the Act and emitted by a
source. By having this information, the permitting authority can
properly determine which requirements under the Act apply to the
source, and include these requirements in the permit. Only by
including all requirements applicable to a source in the permit
can a permitting authority ensure that the permit assures
compliance with the Act.
Several changes were made to the definition of "regulated
air pollutant" (which was "regulated pollutant" in the proposal).
First, substances regulated under title VI of the Act (protection
of stratospheric ozone) were added to the list of regulated
pollutants. As a general rule, regulatory requirements under the
stratospheric ozone program should be included in a source's
permit. However, because of the nature of some title VI
regulations, the Administrator may determine by future regulation
that some CFC regulations need not be in an operating permit.
For example, the Administrator may decide that a title V permit
need not contain production limits that apply on a company-wide,
rather than facility-specific, basis.
Second, the final part 70 regulations clarify when a
substance regulated under section 112 becomes a "regulated air
pollutant." The term "regulated air pollutant" includes any
pollutant subject to a standard or other requirements under
section 112 of the Act, including section 112(r) of the Act. As
applied to an individual source only, the definition includes any
pollutant for which a case-by-case MACT determination is made
under section 112(g)(2) of the Act, which requires such a
determination to be made specifically in response to a
modification or new construction by the source. This type of
MACT determination, which is to be made by the permitting
authority if EPA had not established any applicable emissions
limitation previously, will apply only to the individual source
for which it was developed. Because the requirement to make such
a MACT determination is triggered by action by a single source,
EPA believes that such a determination should not require the
substance to be treated as a regulated pollutant for the entire
regulated community at the time the determination is developed
for a single source.
5. Definition of Major Stationary Source
Evaluation of the requirements of the Act with respect to
the outer continental shelf (OCS) program has prompted the Agency
to delete the reference to vessels in the definition of major
stationary source. Specifically, section 328(a)(4)(C)(iii)
requires that emissions from vessels servicing or associated with
the OCS source be considered direct emissions from the source.
The promulgated definition will allow permitting of these sources
consistent with the requirements of the OCS program.
Commenters also raised concerns about flexibility of
research and development (R&D) operations. Although EPA is not
exempting R&D operations from title V requirements at this time,
in many cases States will have the flexibility to treat an R&D
facility as separate from the manufacturing facility with which
it is co-located. Under such an approach, the facility would be
treated as though it were a separate source, and would then be
required to have a title V permit only if the R&D facility itself
would be a major source.
D. Section 70.4 - State Program Submittals and Transition
1. Approval of Program Elements
Many State and industry commenters strongly supported
various existing State programs and suggested that these programs
should be approved with minimal change; one of these commenters
suggested that EPA should be responsible for identifying what
would have to be changed in the submitted program for the State
program to be approved. Several commenters further suggested
that EPA allow "equivalent" programs where they achieve the same
results as the title V program.
The EPA has no leeway to accept current programs other than
to judge them against the criteria for program content specified
in section 502(b). However, in promulgating these regulations,
the Administrator has provided for as much flexibility as
possible in approving State programs in an effort not to disrupt
them unduly. The provisions in section 502(g), however, provide
for interim approval of programs for a period of up to 2 years if
the program "substantially meets" the program content criteria in
502(b). The criteria for determining if a program substantially
meets title V and is eligible for interim approval was proposed
in section 70.4(d) and public comment was considered in
establishing the final criteria.
Furthermore, EPA wishes to note that, consistent with its
implementation goals for title V, it will attempt to be flexible
in determining whether a State program meets the required minimum
elements. This will be particularly true where the State has an
established track record in implementing an air operating permit
program.
In some cases, certain provisions within the final rules
directly provide flexibility to States in meeting the minimal
program requirements. For example, section 70.4(b)(13) requires
in part for State program approval "provisions for adequate,
streamlined, and reasonable procedures for expeditious review of
permit revisions, including permit modifications." This section
states further that the State may meet this obligation by "using
procedures that meet the requirements of section 70.7(e) of this
part or that are substantially equivalent." (Emphasis added.)
Here, EPA has provided a model for the State to follow and will
approve different but effective State approaches which accomplish
the same statutory and regulatory objectives. At the same time,
however, the Administrator will ensure that State programs meet
the requirements of section 502(b).
2. Underlying Regulations
The proposed section 70.4(b)(2) required that the State
include in the program submittal the regulations that comprise
the program and evidence of their correct adoption, including the
notice of public comment and significant comments received by the
State. States commented that this type of evidence may no longer
be accessible. One State commented that it is unreasonable to
require evidence that existing regulations, some of which were
adopted 20 years ago, were correctly adopted and that, for new
regulations, States should only need to make a demonstration that
the general adoption process was procedurally correct, with a
statement from the Attorney General that the regulations followed
proper procedures.
The Administrator agrees with the concern that proper
regulatory adoption evidence may be unavailable. Section
70.4(b)(2) in the final regulations leaves it up to the State to
provide the evidence of proper adoption that is available. Added
to the final regulations is the requirement also to submit any
regulations or statutes that could restrict the effective
implementation of the permit program. The EPA needs to see any
such regulations, and needs the Attorney General's opinion as to
their validity, to be able to judge if any regulatory changes
need to be made before full approval of a program submittal is
warranted.
3. Opportunity for Judicial Review
Section 502(b)(6) of the Act requires that a part 70 program
provide "an opportunity for judicial review in State court of the
final permit action by the applicant, any person who participated
in the public comment process, and any other person who could
obtain judicial review of that action under applicable law."
This requirement for State program approval was reflected in
section 70.4(b)(3)(x) of the proposal.
The final rule clarifies that the State must allow the
denial, as well as the issuance, of a permit to be challenged in
State court. The final regulation provides that the source and
the public have the right to bring an action if the permitting
authority fails to issue or deny the permit in the time required
by the State program, as required by section 502(b)(7). If a
State fails to act on initial permit applications, EPA may impose
sanctions or withdraw program approval.
The final regulation also was modified to accommodate
changes in permit modification procedures under section 70.7(e)
of this part. A provision was added requiring States to allow
judicial review if the permitting authority fails to act on a
permit modification application and the source has already made
the requested change. In that case, an action could be brought
against the permitting authority for failure to act (seeking a
court order requiring the permitting authority to act finally on
the application).
No time limits on challenging a permit in State court were
included in the proposal, but comments were solicited on the need
for such limitation. No adverse comments were received and some
commenters indicated permitted sources need assurance of stable
permit conditions after a reasonable time for challenge has
passed. Two industry commenters suggested that any permit
challenge limitations that EPA establishes should include
provisions allowing challenges to the permit after the time for
the challenge has lapsed. Such provisions are especially
important, they argued, as new grounds may arise after the period
for challenge has lapsed, and as the government's interpretation
of a permit may not be known until an enforcement action is
commenced.
An additional provision addressing the opportunity for
judicial review has been added to the final regulations. Section
70.4(b)(3) requires that this opportunity for State court review
of the final permit action must be the exclusive means for
obtaining judicial review of the permit, and that all such
petitions for judicial review must be filed no later than 90 days
after final permit action, or such shorter time as the State
requires. If new grounds for challenge arise after the 90-day
review period has ended, the party may challenge the permit on
such new grounds within 90 days after the new grounds arise.
Such new grounds must be based on new information which was not
available during the review period. New grounds specifically do
not include a government interpretation of a permit of which the
source claims in an enforcement action to have been unaware.
After this period for review no permit may be challenged in
court, including any State or Federal enforcement action.
Section 307 clearly establishes this rule for circumstances in
which EPA is the permitting authority. Any dispute over
interpretations of a permit may be resolved in an enforcement
action, if any.
One of the primary goals behind title V is to have greater
certainty for sources and State and Federal enforcement personnel
as to what requirements under the Act apply to a particular
source. In order to achieve that certainty, the terms of the
permit cannot be subject to challenge in enforcement actions.
Limiting judicial review of permits has advantages for the
permittee, the permitting authority, and EPA. The advantage for
permittees is the added certainty and stability gained by their
permit no longer being subject to challenge. Enforcement at the
State and Federal level should also benefit significantly.
Currently, many enforcement actions are hindered by disputes over
which Act requirements apply. Under the permit system, these
disputes will no longer arise because any differences among the
State, EPA, the permittee, and interested members of the public
as to which of the Act's requirements apply to the particular
source will be resolved during the permit issuance and subsequent
review process.
In the preamble of the May 10, 1991, proposal, EPA suggested
that, to ensure national consistency in the acid rain program, it
might be appropriate to require that challenges to acid rain
requirements in part 70 permits be reviewed only in Federal
courts. The EPA wishes to clarify that it did not mean that
action on the State-issued permit itself is subject to judicial
review in Federal court. As is more fully explained in the
preamble to the recently-proposed acid rain regulations, only
certain specific decisions of the Administrator that are
incorporated into part 70 permits will be reviewed in Federal
court. Final action on the permit itself will be subject to
review in State court, as is provided for in section 502(b)(6).
4. "Act On" Permits
Section 503(c) establishes the requirement that sources
submit permit applications within 1 year of the date they become
subject to the permit program, and that the permitting authority
issue or deny permits within 18 months of the application
submittal. Initially, the date that sources become subject to
the program is upon program approval. The language in section
503(c) goes on to establish an exception to this schedule by
allowing the permitting authority to develop a 3-year phased
schedule for "acting on" the first set of permit applications
submitted within 1 year of program approval. Section 503(c)
requires such phased schedule to provide that at least one third
of the permits be "acted on" annually in each of the 3 years.
One State proposed that the requirement for a permitting
authority to "act on" a permit [as discussed in the transition
plan requirement in section 70.4(b)(11)] should mean "begin
review" of, rather than issue or deny the permit. The EPA
believes that the requirement of section 503(c) that at least one
third of the applications submitted within the first year of a
program be "acted on" annually after the effective program date
must be read to mean that final action will be taken on those
applications within the specified timeframe.
5. Operational Flexibility
(a) Proposal and Comments. The proposed regulations
implementing section 502(b)(10) appeared in section 70.6(d) in
the proposal, but now are found at section 70.4(b)(12). Industry
comments generally approved EPA's regulatory proposal
implementing section 502(b)(10), and supported the measures as
necessary to allow American industry to remain competitive and
adjust to changing market conditions. Some, however, wanted the
final rules to provide more flexibility.
Environmental groups and a number of States strongly
criticized the proposal's operational flexibility provisions.
These critics maintained that the statute allows sources to shift
among different operating scenarios (with different emissions)
only if the various scenarios are set forth in the permit.
Otherwise, they claimed, the source must obtain a permit revision
before making the change at the facility. These critics stated
that the extension of the permit shield to changes made pursuant
to section 70.6(d) made matters even worse, because any changes
made under the 7-day notice would receive no review from the
permitting authority, EPA, or the public.
A number of State and local air pollution control agencies
also strongly criticized EPA's view stated in the proposal that
emissions or other practices not prohibited by a permit are
allowed. They argued that this concept runs counter to the way
State and local air permitting programs are run, and is far too
open-ended. One permitting authority commented that allowing
such "off-permit" activities would make it impossible to use a
title V operating permit program as the basis for a market-based
compliance system, because the permits would no longer
necessarily reflect the total emissions from any facility.
Several States have commented that mandating this interpretation
as a program element would require such a fundamental
restructuring of their existing operating permit programs that
the State would not be able to adapt the State program to title
V. Some also stated that this view is at odds with section
502(b)(10) of the Act.
(b) Structure of the general provisions. As a result of
public comments and the Agency's further consideration of this
controversial provision, EPA has changed the regulatory
provisions implementing section 502(b)(10) in several ways. The
regulations have been moved from section 70.6(d) (on permit
content) to 70.4(b)(12) (in the section on permit programs)
because the requirement is one for the program itself.
Despite the views of some commenters to the contrary, EPA
believes that the Act requires a State to meet the requirements
of section 502(b)(10) in order for the Agency to approve the
title V permit program. Section 502(b) states that "the minimum
elements of a permit program . . . shall include each of the
following." For reasons that will be fully set out in the
detailed response to comments document, neither sections 506(a)
nor 116 allow States to avoid this program element. As a result,
the final regulation includes program elements for operational
flexibility which the State is mandated to provide in its title V
program.
The EPA has, however, reconsidered the question of exactly
what this statutory provision contemplates. There was serious
disagreement among the commenters concerning whether section
502(b)(10) allows sources to operate in ways that are not
specifically addressed in the permit without obtaining a permit
revision (as long as the changes meet the specifications stated
in the provision), or whether it merely states that, if the
various operating scenarios or provisions for increasing and
decreasing emissions at various emitting units are stated in the
permit, the source may shift among these operations or units
without obtaining a permit revision. After careful analysis of
the statute and legislative history, EPA concludes that the
statutory language gives EPA broad authority to provide source
operational flexibility. The EPA has structured its final
regulation to give the States flexibility in meeting their
requirements under section 502(b)(10), while ensuring that
programs must provide operational flexibility consistent with
title V and the underlying applicable requirements it implements.
In brief, the final regulation identifies three ways to
provide operational flexibility:
(i) Programs must allow certain narrowly defined changes
within a permitted facility that contravene specific permit terms
without requiring a permit revision, as long as the source does
not exceed the emissions allowable under the permit.
(ii) The permit program may allow emissions trading at the
facility to meet SIP limits where the SIP provides for such
trading on 7-days' notice in cases where trading is not already
provided for in the permit; and
(iii) The permit program must provide for emissions trading
for the purposes of complying with a federally-enforceable
emissions cap established in the permit independent of or more
strict than otherwise applicable requirements.
The first and third ways of implementing operational
flexibility are mandatory on the States; the second is available
to States that wish to take advantage of it.
As noted above, a number of State and environmentalist
commenters argued that section 502(b)(10) only allows operational
changes without a permit revision if the flexibility is built
into the permit itself (i.e., various operating scenarios or
rules for allowing trading of emissions among different units are
expressly set forth in the permit).
The EPA does not believe, however, that section 502(b)(10)
is only a mandate to include alternate permitted scenarios in the
permit. If a permit includes compliance terms for alternate
operating scenarios, a source is simply complying with the terms
of its permit when it operates under one or another scenario. If
limited to this narrow reading, section 502(b)(10) would be
rendered mere surplusage or an unnecessary gloss on a source's
obligation under section 502(a) to comply with its permit.
On the other hand, EPA also disagrees with commenters who
asserted that section 502(b)(10) authorizes sources to give a 7-
day advance notice and then meet their permit limits using an
average of all emissions across the "permitted facility,"
regardless of whether such averaging would be consistent with the
underlying requirements of the Act. Nothing in title V or the
Act allows permitted sources to violate applicable requirements.
If a SIP emission limit applies to each emissions unit at a
facility, a title V permit cannot authorize any one unit to
violate that emission limit, even if the average emissions across
the facility are equal to the emissions that are allowed at the
facility under the SIP. As a policy matter, emissions averaging
provisions are often complicated to implement and require careful
review to ensure that the trading plan allows the same emissions
as the otherwise applicable requirements. The EPA believes that
a 7-day notice is not a reasonable amount of time to conduct such
a review.
The EPA agrees, however, that one policy goal of the Act is
to encourage responsible emissions trading plans and to reduce
the costs of meeting the Act's requirements. The EPA's
regulations implementing section 502(b)(10) are designed to
encourage emissions trading as extensively as possible consistent
with the requirement that title V permits comply with the
applicable requirements of the Act and the need to ensure a
reasonable review of the emissions trading provisions established
in a permitting process.
Before discussing each of these three elements of EPA's
final regulation on operational flexibility, there are provisions
in the regulation that are applicable to any method for
implementing operational flexibility. The regulations provide
that the source must give at least a 7-day advance notice of any
change made pursuant to the section 502(b)(10) process. The
source, the permitting authority, and EPA must attach a copy of a
7-day advance notice describing the change to their copy of the
relevant permit. These notices will be critical for determining
how a source is complying with applicable requirements at any
time, and therefore must accompany a permit.
Further, no change under this provision can exceed
"emissions allowable under the permit." The EPA has defined this
term to mean a federally-enforceable permit term or condition
determined at issuance to be required by an applicable
requirement that establishes an emission limit (including work
practice standards) or a federally-enforceable emissions cap that
the source has assumed to avoid applicable requirements. This
definition clarifies that changes under this provision cannot
increase emissions beyond what is provided for by the terms and
conditions of the permit.
Nothing in this section is meant to imply any limit on the
inherent flexibility sources have under their permits. A
permittee can always make changes, including physical and
production changes, that are not constrained under the permit.
For example, a facility could physically move equipment without
providing notice or obtaining a permit modification if the move
does not change or affect applicable requirements or federally-
enforceable permit terms or conditions. Or a painting facility
with a permit that limits the VOC content of its paints can
switch paint colors freely as long as each color complies with
the VOC limit in the permit.
(c) Changes contravening certain permit terms or
conditions, section 70.4(b)(12)(i). As noted above, a federal
operating permit is not meant to prevent a source from making
changes at the facility that are not constrained by the permit.
Accordingly, the Act does not require 7-day notice for such
changes under 502(b)(10). The agency believes that the term
"changes" in 502(b)(10) is meant to apply to changes at the
facility that may contravene the permit. Therefore, the first
method for implementing operational flexibility requires each
program to allow certain changes at a permitted facility that may
contravene specific permit terms or conditions or make them
inapplicable. The types of changes that are allowed are limited
as discussed below. The program must provide that an owner or
operator of a source could give a 7-day notice that it is making
a change at the facility. The notice would, among other things,
describe the change and identify any permit terms or conditions
that would no longer be applicable as a result of the change. If
that notice and the change qualify under this provision, the
facility owner or operator would not have to comply with the
permit terms and conditions it has identified that restrict the
change. If it is later proven that the change does not qualify
under this provision, the original terms of the permit remain
fully enforceable.
Under the regulations, programs must allow "section
502(b)(10) changes" without requiring a permit modification. The
regulations define "section 502(b)(10) changes" as those that
contravene a permit term, but exclude from this definition any
changes that violate applicable requirements or contravene permit
terms and conditions that are monitoring (including test
methods), recordkeeping, reporting, or compliance certification
requirements. This definition is designed to prevent changes to
permit terms that are critical to determining the "emissions
allowable under the permit."
An example of how this provision would operate would be a
permit in which the federally-enforceable portion specifies a
particular brand of coating, along with the emission limit
applicable to that coating. This provision would allow the
source to change that brand of coating using a 7-day notice. Of
course, the new brand must comply with the emission limit.
(d) Emissions trading based on the SIP, section
70.4(b)(12)(ii). The second method for implementing operational
flexibility would allow a source to trade emissions within the
permitted facility to meet its SIP limits, where the permit does
not already provide for such emissions trading but the SIP does.
The SIP will identify which provisions allow this type of
operational flexibility. This method would allow a source which
had not anticipated needing to trade emissions within the
facility to take advantage of emissions trading provisions in the
SIP after a 7-day notice without having to modify its permit to
include new compliance provisions to enforce the emissions trade.
Each permit for a source eligible for such emissions trading
would include the applicable SIP emission limits. Upon giving
the notice under 502(b)(10), the source could then meet the SIP
limits using the applicable trading and compliance provisions
approved into the applicable implementation plan. The notice
accompanying the permit will then indicate that the source is
complying with the implementation plan's trading provisions,
rather than the compliance terms set forth in the permit. This
mechanism should prove useful to those facilities where emissions
trading might provide useful operational flexibility, but the
source has not anticipated the need to trade emissions or is not
sure enough about its need to warrant writing compliance
provisions necessary to implement an emissions trading plan in
its permit.
The EPA is not aware of any SIP's that are currently
structured to allow sources to opt into an emissions trade based
on a 7-day notice, EPA will encourage the States to develop such
provisions as part of its efforts to promote market-based
regulation under the Act. EPA has already begun to examine the
relationship between SIP's and operating permits to identify
opportunities for more flexible implementation of the
requirements of title I of the Act. To aid the States in
implementing this method of operational flexibility EPA will
propose, within one year following this rulemaking, guidance for
comment on how States may revise their implementation plans to
meet these goals. EPA will issue the final guidance within two
years.
Any such SIP would have to include compliance requirements
and procedures for such trades. As outlined below, these
procedures must assure that any such trade is quantifiable,
accountable, enforceable, and based on replicable procedures for
ensuring the emission reductions that the trading program was
intended to provide, including necessary test methods,
monitoring, recordkeeping, and reporting. These trading
provisions must be specific enough so that any source authorized
to use them has a clear method for demonstrating compliance
without undergoing a permit revision, but must also be flexible.
Quantifiable: EPA and the State must be able to determine
the emissions impact of the SIP requirement or emission limit.
SIP's must specify measuring techniques, including test methods,
monitoring, recordkeeping and reporting requirements with which
to measure the emissions allowed under the trading program and
for a compliance determination.
Enforceable: A SIP measure must include clear and
unambiguous requirements which apply to the source pursuant to
legal authority that States, EPA, and citizens may enforce under
the Act. An emission limit must also be enforceable in practice;
a regulatory limit is not enforceable if, for example, it is
impractical to determine compliance with the published limit.
Accountable: The demonstration of reasonable further
progress, attainment, or maintenance for the SIP must account for
the aggregate effect of the emissions trades allowed under any
such program.
Replicable: SIP procedures for applying the emission
trading rules to specific sources should be structured so that
two independent entities applying the procedures would obtain the
same result when determining compliance with the emission trading
provisions. For a SIP trading provision to produce replicable
results, the SIP must clearly specify all the variables necessary
for determining the baseline emissions for each source, and
increases or decreases from that baseline.
The permit shield would not apply to any emissions trades
made under the SIP pursuant to a 7-day notice, because the
relevant compliance terms and trading provisions would be
contained in the SIP, not in the permit. The regulations allow a
source to implement non-operational changes, such as changes in
monitoring, under this provision. If the emissions trading
provisions in the SIP contain compliance provisions for the
trading different from the compliance provisions already in the
source's permit, the source must comply with the compliance
provisions in the SIP rather than those in the permit. To the
extent the source chooses to operate under its original permit
terms rather than the SIP provision, the source must comply with
the compliance provisions in its permit.
(e) Emissions trading under emissions caps, section
70.4(b)(12)(iii). The third method for implementing operational
flexibility requires the permitting authority to provide for
emissions trading in the permit for the purposes of complying
with certain emissions caps. Where the permit establishes a
federally enforceable emissions cap that is independent of the
applicable requirements, the source may request such emissions
trading. For example, to limit the source's potential to emit, a
permittee may agree to an emissions cap in its permit that is
lower than anything required under the SIP or other applicable
requirements. If the permittee requests it, and proposes
replicable procedures adequate to ensure that the emissions
trades are enforceable, accountable, and quantifiable under the
permit cap, the permitting authority shall include the emissions
trading procedures in the permit. The source could then engage
in emissions trading following a 7-day notice based on those
procedures. Of course, the permit must also include the
limitations with which each emissions unit must comply under any
applicable requirements and must continue to ensure compliance
with all applicable requirements, including the SIP.
If a unit is subject to requirements where the emissions
impacts are not readily quantifiable, there is no requirement for
the permitting authority to include such units in an emissions
trading plan. For example, units subject solely to work practice
standards with no quantifiable emissions limit are not likely
candidates for such emissions trading plans. Of course, a source
may agree to certain federally-enforceable terms or conditions to
avoid any otherwise applicable requirement, even though trading
under such permit terms or conditions may not be appropriate.
(f) Emission caps and emission allowances. EPA has
received comments from several parties expressing concern about
how to make changes in permit limits that are more strict than or
below the level required in the Act's underlying applicable
requirements. The commenters raise two scenarios. One is where
the permitting authority sets an emissions limit or cap on an
emission unit as a matter of State law. The other is where the
source has agreed to make the lower limit or cap federally
enforceable to reduce the source's potential to emit as a matter
of Federal law.
In the first scenario, EPA wishes to clarify that these
regulations do not require a State to use title V procedures to
modify emission limits that are based solely on State law and do
not implement an applicable Federal requirement. A State is free
to establish its own procedures for modifying any such State
limits which may be referred to in a title V permit. As
explained below, pursuant to 70.6(b), all permit terms which are
not federally enforceable must be identified as such in the
permit.
In the second scenario, it is possible to use the
combination of several provisions in these regulations to allow
for operational flexibility around federally-enforceable emission
limits or caps which are more strict than otherwise required by
the Act's applicable requirements. A source may request that the
permit provide for emissions trading under section
70.4(b)(12)(iii), as discussed above. For example, a source
could structure its permit so that the emissions caps at the
permitted facility created a pool of unused emissions under the
voluntary limit on the source's potential to emit. The facility
could then establish an emissions trading plan in its permit
which would allow it to apply those unused emissions at any
particular emission unit after a 7-day notice. The permit would
contain the compliance provisions necessary to account for the
application of emission allowances from this pool.
Obviously, the source may use this pool of emissions
allowances to increase its emissions on any unit only as high as
allowed by the applicable requirements for that emissions unit,
if any. In addition, the source's total emissions must remain
below any voluntary limit on its potential to emit. But within
those limits, the source could cap its potential to emit, while
maintaining the flexibility to shift emissions on short notice.
(g) Batch processors and operational flexibility. Batch
processors, such as pharmaceutical or specialty chemical
producers, raised particular concerns about operational
flexibility under title V. Commenters also raised concerns about
flexibility of research and development (R&D) operations.
Although EPA is not exempting R&D operations from title V
requirements at this time, in many cases States will have the
flexibility to treat an R&D facility as separate from the
manufacturing facility with which it is co-located. Under such
an approach, the facility would be treated as though it were a
separate source, and would then be required to have a title V
permit only if the R&D facility itself would be a major source.
In response, EPA has provided many opportunities for operational
flexibility in these regulations, even beyond the requirements of
502(b)(10). More important, sources can always make changes that
are not constrained under the permit. For example, as mentioned
above, a facility could physically move equipment without
providing notice or obtaining a permit modification if the move
does not change or affect applicable requirements or federally-
enforceable permit terms or conditions. In addition, the
permittee and the permitting authority may craft permits to
establish worst-case operational scenarios so that the ability of
the source to increase its emissions from actual levels up to the
permitted allowable emission limits will be inherent in the
emission limits in such operating permits. The permittee can
make such increases without submitting a 7-day notice. Also many
emission limits are expressed in terms of emission rates, not
total emissions. In this case the permit would not limit the
production capacity of the facility, as long as it complied with
the applicable emission rate.
Moreover, programs must allow certain changes that may
contravene permit terms under 70.4(b)(12)(i). In addition,
pursuant to 70.4(b)(12)(iii) the permitting authority will be
required to include in the permit emissions trading provisions
requested by the batch processor that are appropriate to comply
with an emissions cap established in the permit. Under
70.4(b)(12)(ii) the source may engage in emissions trading based
on the implementation plan. Under 70.6(a)(9) and (10) the permit
must include alternative operating scenarios identified by the
source or emissions trading provisions to the extent provided for
in the underlying applicable requirements. Finally, these
regulations allow a State to authorize "off-permit" operations,
as explained in the discussion below on section 70.4(b)(14) and
(15).
6. "Off-permit" operations.
The permit program may allow changes at a facility that are
not addressed or prohibited by the permit terms (so-called "off-
permit" changes), provided they meet the requirements of section
70.4(b)(14), described below. Although many commenters
challenged the legality of this concept under title V, EPA
believes that title V was not intended to prohibit such changes.
The Agency continues to believe that section 502(a) allows
certain changes at a permitted facility that need not be
incorporated into the permit until renewal. Section 502(a)
prohibits a source from operating any of certain listed types of
sources "except in compliance with a permit...." EPA's view is
that it does not violate this prohibition for a source to operate
in ways that are neither addressed nor prohibited by the permit.
Thus, new sections 70.4(b)(14) and (15) of the regulations
provide that a State may allow a permitted source to make changes
that are not addressed or prohibited by the permit, without
requiring a permit revision, as long as they are not
modifications under any provision of title I, are not subject to
any requirements under title IV of the Act, and meet all
applicable requirements of the Act.
The EPA is limiting off-permit changes to those that do not
constitute title I modifications for legal and policy reasons.
Legally, the structure of the statute suggests that title I
modifications should not take place entirely outside the permit
process. Section 502(b)(10) explicitly excludes title I
modifications from the class of changes that can be made without
a permit revision. It would be anomalous for the Act to suggest
that permits must be modified to reflect title I modifications in
one place and then, by inference under section 502(a), allow off-
permit changes above title I modification levels to take place
without any permit modification. As a policy mater, the Act
specifically identifies title I modifications under section
502(b)(10) because they represent significant changes to a
facility. Other changes may implicate Federal standards, but
title I modifications always do. Therefore, it is not reasonable
to allow such modifications to be made outside the title V permit
system.
The final regulations make a change in this option, however.
EPA has deleted the language in the proposal, at section
70.6(d)(3)(iv), stating that notification to the permitting
authority and EPA is not required for changes at the source that
are not regulated or prohibited by the permit. After considering
the public comments, EPA believes that it is critical that the
permitting authority and EPA should receive contemporaneous
written notification for these types of changes. This notice
will provide a record of activity at the facility without
inhibiting the sources ability to make the change. If
notification were not required, sources could make substantial
changes without notifying the permitting authority or EPA of
changes that might implicate Federal requirements. This would
defeat one of the purposes of an operating permit system. The
final rule also requires the source to keep certain records of
these changes. These records may consist of copies of the
notices sent to EPA and the permitting authority when the change
is made.
One inherent limitation on the changes a source can make
under the off-permit concept is that off-permit changes are
limited to those activities not "addressed" by the permit.
Therefore, off-permit changes cannot alter the permitted
facility's obligation to comply with the compliance provisions of
its title V permit, which under section 70.6 will be "addressed"
in each permit. Such requirements include monitoring (including
test methods), recordkeeping, reporting, and compliance
certification requirements.
The regulations clarify that the permit shield under section
504(f) may not extend to changes made in this way. This
limitation was clearly stated in the preamble to the proposal [56
FR 21746], but, as several commenters pointed out, was not stated
in the proposed regulations.
Finally, the regulations make it clear that a State may
choose to prohibit off-permit operations as a matter of State
law. EPA believes, however, that off-permit operations are an
important source of flexibility under title V. Therefore, the
regulations provide that any State prohibition of off-permit
operations will not be enforceable as a matter of Federal law
under the Act. This means that if a State elects to prohibit
off-permit operations, neither EPA nor citizens could enforce
against the source for failure to have a Federal title V permit
covering the off-permit change. Of course, the underlying
requirements of the Act would remain federally enforceable if the
off-permit change violates any applicable requirement.
If a State prohibits off-permit activity under State law,
the State will likely require the source to use some State
procedures to record the off-permit change so that the source's
operating permit reflects the off-permit change. Where the State
chooses to include off-permit changes in the portion of the
permit that is not federally enforceable, the permitting
authority must establish procedures which at least provide EPA
with notice of the change. Obviously, such changes do not
qualify for the permit shield under sections 504(f) and 70.6(f).
It is possible, however, that States or EPA may conclude
that a prohibition on off-permit operations must also be made
federally enforceable to ensure that applicable requirements are
met. For example, as mentioned above, a marketable permits
program may be impossible to administer and enforce if an
operating permit is not a complete representation of the
permitted facility's emissions. To allow for such innovative
uses of the title V permit program to implement the Act, a
prohibition on off-permit operations can be made federally
enforceable where the SIP or applicable requirement, such as a
MACT standard, includes a prohibition of off-permit operations.
Section 70.4(b)(15) makes clear that certain changes to the
federally-enforceable terms and conditions of a part 70 permit
must go through permit revision procedures. As noted above,
changes that are title I modifications cannot be made off-permit.
Also ineligible are changes subject to any requirements of title
IV. The EPA believes that the allowance trading system provided
for in title IV will not be feasible unless there is an accurate
accounting of each source's obligations thereunder in the title V
permit.
7. Partial Program Approval
Section 70.4(c) of the proposal contained provisions for
approving a partial program that applies to a limited universe of
sources. The proposal mirrored the language in section 502(f)
that listed the minimum criteria a program must meet to get
approval as a partial program. Several industry commenters said
that partial approval for programs that issue permits that do not
include all applicable elements should be avoided, since it would
cause involvement by multiple permitting authorities and result
in confusion. An environmental group commented that partial
program approvals may not be legal if they do not cover the
entire range of source categories to which title V applies; they
would not fulfill all requirements of the Act. Several
commenters supported the need for partial program approvals,
however.
Approval of partial programs is provided for in section
502(d) and minimum criteria for approval are listed in section
502(f). The minimum criteria in section 502(f) cover title V,
title I, title IV as applicable to affected sources, and section
112 as applicable to new sources, major sources, and area
sources. Since a partial program can be part of a whole State
program, EPA will grant full approval to a partial program only
if it meets all the part 70 requirements. The EPA will, however,
consider interim approval for partial programs that substantially
meet the requirements of part 70.
Clarification is added to section 70.4(c) concerning source-
category limited partial programs. A program that only addresses
certain source categories based on the jurisdictional limits of a
local agency will be approved as a partial program. This partial
program approval can be interim if the program does not fully
meet, but substantially meets, the criteria for a permitting
program. A program that is limited because it does not address
certain source categories (for reasons other than geographical
jurisdiction of a local agency) will be given only an interim
approval and must be modified within the interim approval period
to cover all sources and meet all part 70 requirements before
full approval can be granted. However, for EPA to grant interim
approval to a source-category limited program (other than for
geographical reasons), there must be compelling reasons why the
State cannot address all sources in the interim. These reasons
will be judged on a case-by-case basis.
One State commenter argued that EPA should approve permit
programs on a district-by-district basis. The EPA will act on
partial programs as they are submitted. The State retains the
option to submit several partial programs to meet its obligation
to submit a whole part 70 program.
8. Interim Approval of Programs
Section 502(g) of the Act allows interim approval of a State
program for up to 2 years if it substantially meets the
requirements of title V. Section 70.4(d) proposed six program
elements that would be needed for a program to receive interim
approval.
Several industry commenters stated that operational
flexibility and permit revision procedures should be required
aspects of the State's interim program, and that provisions for
renewing permits granted under interim approval should also be
made. Some State agency commenters, on the other hand, believed
that the key elements included for interim approval should be
kept to a minimum.
The criteria for allowing interim approvals is designed to
provide for viable permits that will not have to be renewed upon
full program approval other than when the term of the permit
expires. The EPA believes the proposed criteria, with the
addition of enforcement, certain operational flexibility
provisions, streamlined permitting procedures, alternative
operating scenarios, and permit application forms, discussed
below, are sufficient to substantially meet the requirements of
title V. Other suggested additions to the criteria were
considered and only these provisions were judged to be of such
importance as to be added.
The program elements that compose the criteria a program
must meet to be granted interim approval have been modified to
add enforcement authority. Section 70.4(d)(3)(vii) now requires
interim programs to have "authority to enforce permits, including
the authority to assess penalties against sources that do not
comply with their permits or with the requirement to obtain a
permit." Enforcement is an essential element of any viable
permitting program and therefore no program "substantially meets"
the elements necessary for an approvable part 70 program without
authority to enforce permits and the requirement to obtain a
permit. Therefore, civil authority to enforce permit terms and
conditions and the requirement to obtain a permit is necessary to
qualify for interim approval. The EPA realizes, however, that
many States do not currently have the criminal authority or the
civil statutory maximum of $10,000 per day per violation required
for full approval, and legislative changes will be necessary.
Therefore, the civil statutory maximum would not have to be at
the $10,000 per day per violation level and criminal authority
would not be required until full approval.
The Administrator agrees with industry commenters that the
ability to incorporate alternate scenarios into the permit, as
well as certain provisions of operational flexibility, are
important aspects of the permitting program that should be
included in an interim program. In that permits issued under an
interim program could be for a full 5-year term, sources would
need these important provisions for that period to allow timely
response to changes in market conditions. These elements are
important minimum elements without which needless permit
revisions could be required before changes critically important
to the source could be made.
Balanced against this need for flexibility is the concern
that States may not be ready to implement certain aspects of
section 70.4(b)(12) at the time of an interim submittal.
Accordingly, EPA is requiring as a minimum interim program
element only the ability to generally implement this section.
The Administrator also agrees that any permit issuance or
revision activity under an interim program should be carried out
expeditiously. Streamlined provisions for revising permits
issued under an interim program could be vital to industry if
market conditions dictate that a permit revision is necessary.
No specific timeframes are being provided as guidance for meeting
this criterion because timeliness of action on permits and permit
revisions will depend on the experience of the individual
permitting authority and also because processing the first phase
of permits could be more difficult due to the initial workload on
an agency. The streamlined procedures will be judged on a case-
by-case basis when a program submittal is reviewed and interim
approval is considered. EPA also believes that an interim
program should have application forms to ensure that any permit
processing procedures are smoothly implemented.
9. Review of Program
Several groups suggested shortening the period of time
allowed for States to resubmit their programs following EPA
review and disapproval of the initial program submittal. The
proposed regulations in section 70.4(f) allowed 180 days
following notice of disapproval by the Administrator or such
other time not to exceed 2 years for States to resubmit their
programs with corrected deficiencies. The allowance for up to 2
years was proposed only for a situation where legislative changes
would be needed and additional time would be required for the
changes to be adopted. Several environmental groups endorsed a
180-day period to resubmit a program, stating that the Act at
502(d)(1) allows a period of that length. Two industry
commenters indicated that the States should only have 1 year to
submit their program revisions following EPA review.
Section 502(d)(1) stipulates that the State has 180 days
after EPA notice of disapproval to resubmit a program and does
not provide for any longer period. Section 70.4(f) has been
revised to reflect only the 180 days and the provision for up to
2 years has been removed to be consistent with 502(d)(1).
10. Program Deficiency Correction
Section 70.4(i)(1) allows 180 days for a program revision
when the Administrator finds, sometime after program approval,
that a program has inadequate means of implementation or is
inadequate in some other way. If the State demonstrates that
additional legal authority is necessary to correct the
deficiency, the period may be extended up to 2 years. The
proposal did not, however, cover program revisions needed due to
a change in part 70. This has been added to the final rules so
that any program revision which must include additional legal
authority necessary to implement a change to the part 70 rules
can be accomplished over a period up to 2 years.
11. Confidential Information Submittal
A Federal agency requested that laws for classified or
sensitive unclassified information be applied when such
information is transmitted to the permitting authority and to EPA
for permit review. A State commenter requested that EPA
correspond directly with the permittee to get confidential
information, and that EPA should not require States to share
confidential information. One commenter indicated that State
legal authority should not be required to transmit confidential
data.
A stipulation is added to section 70.4(j) that a source may
be required by the permitting authority to submit confidential
information directly to EPA since some States cannot submit such
information to EPA. Regardless of whether the submittal is made
by the State or the source, the material will be submitted under
40 CFR part 2, which contains EPA's business confidentiality
regulations. The regulations contain the requirements material
must meet to be considered as business confidential. Qualifying
information is entitled to protection under part 2 such that it
will not be released to outside parties.
12. Computer-Readable Information
Section 70.4(j)(1) of the regulations addresses availability
to EPA of information that is used in the administration of a
State program. The final regulation specifies that such
information is to be provided, to the extent practicable, in
computer-readable files. Such language was not found in the
proposal; therefore, no comments were received specifically on
this issue. The EPA, however, supports further progress in the
computerized exchange of information between itself and State and
local agencies, as long as it is cost-effective and streamlines
processing for the parties involved. Recent EPA workgroup
meetings on data management issues have identified a strong
interest on the part of State and local agencies in making their
information systems more compatible with those at EPA.
Representatives of EPA and permitting authorities alike recognize
the potential for future administrative cost savings through
well-designed permitting-related computer systems.
E. Section 70.5 - Permit Applications
1. Submittal for Preconstruction Review
The proposal stated that any source required to have a
preconstruction review permit pursuant to the requirements of the
PSD program under title I, part C or the NSR program under
title I, part D is subject to the part 70 permit program. The
proposal did not address the timing of application submittal for
these sources.
The final rule in section 70.5(a)(1)(ii) now states that
sources that must meet the requirements under 112(g) or for which
part C or D permits are required must submit a part 70 permit
application no later than 12 months after operations commence,
unless the State requires an earlier submittal date. The final
requirements for section 112(g) will be established in the
rulemaking under section 112(g). Where an existing part 70
permit would prohibit such construction or change in operation,
the source must obtain a permit revision before commencing
operation.
Section 503(c) of the Act states that an application with a
compliance plan shall be submitted not later than 12 months after
the date on which the source becomes subject to the permitting
program and provides for State discretion in setting the exact
deadline. These deadlines should be included in the part 70
program submittal for review and approval by EPA. Section 503(a)
states that any source is subject to the permitting program on
the later of two dates, the effective date of State's part 70
program approval or when the source is subject to section 502(a).
Additionally, section 502(a) states that it shall be a violation
for a source to operate without a permit. This implies that a
source becomes subject to the operating permit program when
operations commence. Therefore, a subject source may wait until
12 months after it begins operation or after State program
approval, whichever date is later, to submit its operating permit
application, provided that the State has not established an
earlier date. Furthermore, section 503(d) allows a source
subject to the permit program to operate and not be in violation
prior to the time it must submit an application under section
503(c). Since section 503(d) is more specific on this point, it
is clear that a source required to have a title I part C or D
permit need not submit a part 70 application until after it
commences operation or such earlier date as the permitting
authority may establish. This prevents the source from being
subject to an enforcement action during the 12-month period that
it operates before it applies for an operating permit.
2. "Timely" Application Submittal for Permit Renewals
The proposal would have required permit renewal applications
to be submitted 18 months prior to permit expiration.
Furthermore, the proposal offered two examples where times less
than 18 months would be approved by the Administrator (where the
State issues permits with terms shorter than 5 years and where
the State was required to act on permits in less than 18 months)
and stated that in no case would a deadline be approved that was
less than 6 months before the permit terms expired.
Several commenters interpreted the proposal to require all
applications for permit renewals to be submitted 18 months before
permit expiration. There was consensus among industry commenters
that an 18-month lead time for submittal of permit renewal
applications was too long and would lead to unnecessary
application revisions before the permit was issued. Some of
these commenters supported a 3-6 month deadline before renewal.
In response to these comments, the EPA states that the
proposed regulation never required all sources to submit
applications for permit renewals 18 months in advance. In order
to ensure that the permit terms do not lapse, the renewal
application must be submitted far enough in advance of permit
expiration to allow for reissuance. This is consistent with
section 502(a) of the Act, which states that a source shall not
operate without a permit once it is subject to the permitting
program. There is a competing concern in that these applications
must be expeditiously processed by the State, consistent with
502(b)(6) of the Act. This concern has been addressed by
changing the final regulation to provide permitting authorities
the discretion to require renewal applications to be submitted
not less than 6 months or more than 18 months before permit
expiration. The States are now given flexibility to set these
deadlines, but this flexibility is tempered by EPA's ability to
audit State programs after approval to determine if permits are
being renewed before the permit terms lapse. The States can
require sources to submit applications within the time confines
provided in the regulation, and it is then up to the States to
ensure that the applications are processed and the renewal
permits are issued as provided for in their program submittals.
3. Application Completeness Determination
(a) Deadline for States to determine completeness. In
section 70.4(b)(6) of the proposed rule, a permitting authority
had 30 days to determine whether the application was complete and
to send the applicant, in writing, a notice of completeness or
incompleteness, or the application would be deemed complete by
default. This requirement was proposed by EPA in response to
section 502(b)(6) that States have, as a program element,
"[a]dequate, streamlined, and reasonable procedures for
expeditiously determining when applications are complete,...".
While many industry commenters supported the 30-day deadline
for application completeness determination, several State groups
suggested changing provisions for completeness by default to 60
days. States commented that 30 days per application was not long
enough to ensure that all permit applications could be reviewed
for completeness within the workload of the Agency, especially in
light of the initial submittal of applications from all sources
within 1 year after program approval. An environmental group
interpreted the 30-day completeness determination to weaken the
Act significantly by allowing sources to operate with incomplete
applications.
Due to these comments and after further study, the
Administrator has decided to change provisions for the
determination of application completeness by default to 60 days
[section 70.5(a)(1)(iii)]. This result applies to all permitting
actions, except for processing minor permit modifications where
no completeness determination is required. The EPA believes that
a "reasonable" time for this review as required by section
502(b)(6) of the Act is 60 days. This follows the precedents set
in the NPDES program and in numerous States for processing
permits for existing sources and should afford permitting
authorities sufficient time for completeness determinations.
Applications for major sources often involve hundreds of
individual units and the States may not be able practically to
perform this task in 30 days. Allowing a 60-day completeness
review time should ensure that the States, especially at program
commencement, do not issue blanket notices of incompleteness to
permittees, due to an inability to perform this duty. This is
important because a State's completeness determination starts the
clock as of receipt of the application on any required deadlines
for application processing. On the other hand, increasing this
review time will prevent the sheer weight of the applications at
the beginning of the program from, by default, allowing sources
to operate and be shielded from enforcement action with
incomplete applications that the agency has not reviewed.
(b) Submittal of additional information after the
completeness determination. The proposal stated that permitting
authorities should have reasonable criteria for determining when
additional information requested of a source after a
determination of completeness must be submitted in order to
retain the protection afforded by the timely submittal of a
complete application.
Several industry commenters requested the ability to update
their applications after the completeness determination but
before the permit was issued, especially with reference to the
possibility that there would be an extended delay in issuing the
permit during the initial 3 year phase-in of the State programs.
In response to these comments and for additional reasons,
the Administrator believes that additional information should be
provided to the permitting authority to address requirements that
become applicable during the period of time after the
completeness determination but prior to release of the draft
permit. Section 70.5(b) has been changed to require the
submittal of this information. Not all information that might
change during this period would be required to be submitted by
the source; only that concerning new applicable requirements.
This new information would not affect the determination of
completeness. This information submittal requirement is
consistent with the important principle of title V that these
permits should articulate clearly the source's obligations and
provide certainty to the source as to its obligations. These
applicable requirements would apply to the source regardless of
the status of the permit application and regardless of whether a
permit has been issued or not. However, for practical reasons,
this requirement only extends until the time that the draft
permit is issued. After the draft permit is issued but before
the final permit is issued, new applicable requirements would
have to be inserted by the permitting authority and the
protection of the completeness determination would be preserved.
4. Exemptions for Insignificant Activities or Emission Units
The preamble to the proposal solicited comment on the
comprehensiveness of the information to be required on
application forms. The preamble section on applications was
silent as to whether certain activities with emissions at or
below certain levels could be exempted from having to be fully
described and included in a complete part 70 permit application,
although it was mentioned in regard to fee demonstrations in the
proposed regulations.
Industry and many State commenters strongly supported the
inclusion of provisions for exemptions for insignificant
activities, so that the applications would not have to contain
unnecessary information. Environmental groups, however,
indicated that different exemption levels should be required for
different compounds, and that EPA should establish uniform
national exemptions for insignificant activities or emission
levels.
In the final regulation at section 70.5(c), the
Administrator has provided that exemptions for insignificant
activities or emission levels can be developed by States
individually as part of their part 70 programs, rather than being
established on a national basis by EPA. The regulation limits
the State's discretion by precluding such exemptions if they
would interfere with the determination or imposition of any
applicable requirement, or the calculation of fees. Applicable
requirement in this context would include any standard or
requirement as defined in section 70.2.
Furthermore, the Administrator requires the application to
have a list containing information on the insignificant
activities that are exempted because of size, emissions levels,
or production rate. An example might be a boiler which is exempt
because it is below a specified size. This list need only
contain enough information to identify the activities qualifying
for an exemption. This list is important for both the source and
the State as it provides information as to what activities are
exempted. This list will also be helpful in the event that a
future rulemaking results in a new requirement being applicable
to the exempted activity, or in the event the State changes its
fee structure to charge fees for the previously exempted
activity. However, for those exemptions which apply to an entire
category of activities, such as space heaters, the application
need not contain any information on the activity.
These types of exemptions minimize unnecessary paperwork and
reduce the need for sources to conduct analysis of all emissions
regardless of the amount involved. Such a position is also
supported by the Alabama Power decision, where the court found
that emissions from certain small modifications and emissions of
certain pollutants at new sources could be exempted from some or
all PSD review requirements on the grounds that such emissions
would be de minimis. In other words, the Administrator may
determine levels below which there is no practical value in
conducting an extensive review.
Rather than mandating national criteria for exempting
insignificant activities or emission levels for all pollutants,
the Administrator is allowing them on a case-by-case basis to be
approved during rulemaking for each part 70 permit program. To
require one test nationally would ignore several State programs
which have already defined workable criteria for insignificant
emissions activities. State discretion to apply these exemptions
also allows title V to build upon rather than disrupt existing
State programs.
In regard to hazardous air pollutants, the EPA is planning a
rulemaking to establish exemptions based on insignificant
emission levels for modifications under section 112(g), and the
exemptions established by a State for such pollutants should not
be less stringent than these levels.
5. Ambient Assessment Information
The proposed rule contained discussion on whether ambient
impact assessment information should be required on all
applications and stated that it should not but could be required
by a State in limited circumstances. Ambient impact assessment
information here means source-specific data necessary for input
to air quality impact dispersion models. Air quality modeling is
not typically required for individual sources by the Clean Air
Act (i.e., it is normally assumed that no individual source can
affect attainment or maintenance of an ambient standard on an
area-wide basis).
In the final rule, the definition of applicable requirement
in section 70.2 now states that NAAQS standards and visibility
and PSD increment requirements under part C of title I are
applicable requirements as they apply to temporary sources.
Furthermore, this definition affects the requirement in section
70.5(c)(3)(vii) that ambient impact assessment information would
be required of temporary sources or any other source where such
information is needed to meet an applicable requirement (e.g.,
regulation to ensure good engineering stack height consistent
with section 123 of the Act).
6. Compliance Plans
(a) Compliance plans required of all sources. The proposal
required that a compliance plan be submitted at the time of
permit application only for sources not in compliance with all
applicable requirements. In addition, the proposal stated that a
compliance plan should include descriptions of how each
applicable requirement will be met, descriptions of the
compliance status of each requirement, a schedule of compliance,
and a schedule for submission of certified progress reports.
Numerous State, environmental and public interest groups, as
well as an association of State and local air pollution control
officials, strongly opposed the requirement that compliance plans
only be required from sources that are not in compliance and
stated that these plans should be required of all sources. On
the other hand, numerous industry commenters supported EPA's
proposal to require compliance plans only from sources that are
out of compliance at the time of permit issuance.
In response to commenters, the EPA has further reviewed the
language of the statute and the legislative history, and agrees
that compliance plans containing schedules of compliance are
required of all sources as part of the permit application.
Section 503(b)(1) of the Act establishes the requirement
that applications contain compliance plans and does not
distinguish between sources in compliance or out of compliance
with applicable requirements. Further evidence for requiring a
compliance plan for complying sources is the reference in section
503(b)(1) to a compliance plan as a description of how the source
will comply with applicable requirements. Additionally, section
503(c) of the Act clearly states that any person required to have
a permit shall submit a compliance plan and an application for a
permit.
The legislative history supports this conclusion. While the
bill passed by the House required compliance plans from both
complying and noncomplying sources, the bill passed by the Senate
would have required compliance plans of only those complying
sources subject to new requirements. S. 1630, section 352(b).
In this regard, the statute reflects the provisions of the House
Bill and does not contain the exception in the Senate Bill. It
therefore appears that Congress considered and rejected even a
limited exemption from the requirement to submit compliance plans
for sources in compliance.
The proposal similarly required schedules of compliance only
for sources not in compliance with all applicable requirements.
As with compliance plans, the final rule requires schedules of
compliance of all sources. This result is compelled by the
language of section 503(b), which requires that each compliance
plan include a schedule of compliance, as well as section 504(a),
which states that each permit must contain a schedule of
compliance.
However, EPA believes that the language of the statute
suggests that schedules of compliance should receive different
treatment where they are being applied to requirements for which
the source is in compliance. Section 501(3) defines a schedule
of compliance as "a schedule of remedial measures, including an
enforceable sequence of actions or operations, leading to
compliance" with applicable requirements (emphasis added). The
phrases "remedial measures" and "leading to compliance" logically
suggest the correction of a situation where a source is not in
compliance. Further, it is unlikely that sources in compliance
were intended to be subject to enforceable interim measures. In
addition, complying sources have already demonstrated an ability
to comply with applicable requirements. The EPA believes that it
would be burdensome and serve no useful purpose for these sources
to submit detailed schedules of compliance.
In the final rule, EPA requires schedules of compliance for
sources in compliance with all applicable requirements at the
time of permit issuance to contain only a statement that the
source will continue to comply with such requirements. With
respect to any applicable requirement effective in the future,
the schedule of compliance must contain a statement that the
source will meet such requirements on a timely basis, unless the
underlying applicable requirement requires a more detailed
compliance schedule. Similarly, for complying sources, certified
progress reports are not required unless detailed compliance
plans are required by an applicable requirement. In the final
rule, a compliance plan is required to be included in the permit
application, but not in the permit, for all sources.
(b) Applicable requirements effective in the future. The
proposal required citation and description of applicable
requirements, including requirements that become effective during
the term of the permit, if such requirement has been promulgated
at the time of permit application, but did not discuss such
requirements in reference to compliance plans.
Several commenters maintained that failing to address future
compliance dates in compliance plans is inconsistent with the Act
requirement that SIP's contain such schedules.
The final rule requires that each schedule of compliance
must contain information concerning future-effective applicable
requirements. Furthermore, the definition of applicable
requirement contained in section 70.2 has been modified to
clarify that future-effective requirements that have been
promulgated or approved by EPA at the time of permit issuance are
applicable requirements for purposes of part 70 permits.
The Administrator agrees with commenters that subpart N of
part 51 requires that SIP's contain legally enforceable
compliance schedules for any requirements (including requirements
with future-effective dates) applicable to stationary sources and
that, therefore, these requirements are also applicable
requirements for purposes of part 70 permits.
7. Compliance Certifications
(a) Content of certifications. The proposed rule stated
that, to be considered complete, a permit application must
include, among other elements, a compliance certification for all
applicable requirements. The proposal discussed in some detail
what is required of a source to meet these requirements.
Commenting on the proposal, industry commenters requested several
modifications of, or clarifications to, the compliance
certification provisions regarding contents of certifications.
The final rule regarding compliance certifications requirements
for permit applications has been clarified in response to these
comments.
Today's rule imposes two types of compliance certification
requirements on part 70 sources. First, in section 70.5(c)(9),
every application for a permit must contain a certification of
the source's compliance status with all applicable requirements,
including any applicable enhanced monitoring and compliance
certification requirements promulgated pursuant to sections 114
and 504(b) of the Act. This certification must indicate the
methods used by the source to determine compliance. This
requirement is critical because the content of the compliance
plan and the schedule of compliance required under section
70.5(a)(8) is dependent on the source's compliance status at the
time of permit issuance.
The second type of compliance certification is imposed by
section 70.6(c)(5). This section states that every part 70
permit must contain a requirement for the source to submit a
compliance certification at least annually throughout the term of
the permit. The contents of this compliance certification are
drawn from sections 114(a)(3) and 503(b)(2) of the Act. This
certification must: identify each term and condition of the
permit that is the basis for certification; the source's
compliance status with that requirement; whether compliance was
continuous or intermittent; the method(s) used to determine
compliance consistent with the monitoring requirements of section
70.6(a); and such other facts as the permitting authority may
require to determine the compliance status of the source. The
final rule differs from the proposal in that annual certification
is now required with respect to the terms and conditions of the
permit; the proposal required certification only with the
applicable requirements. This change is necessary to conform to
the express requirement of section 503(b)(2).
Each of the above compliance certifications must be
certified by a responsible official for truth, accuracy and
completeness, consistent with section 70.5(d).
(b) Responsible official for title IV sources. The
proposed rule in section 70.5 required all part 70 sources
subject to permitting requirements to submit a complete and
timely permit application, certified by a responsible official as
to truth, accuracy, and completeness. Some commenters questioned
who may certify compliance and requested further information on
the term "responsible official."
Title IV contains independent requirements for compliance
certification and section 403(26) already defines the term
"designated official" as a responsible official designated to
represent the owner or operator in matters pertaining to
allowances and the submission of and compliance with permits,
permit applications, and compliance plans for the unit. The
final regulations have been clarified in section 70.2 to allow,
but not require, the designated official for affected sources to
be the responsible official for all part 70 purposes.
Industry commenters stated that the definition of
"responsible official" should allow more latitude for designating
a plant manager as a responsible official. In the final rule,
the definition of "responsible official" has been expanded to
allow for delegation of authority to a plant manager where the
delegation has been approved in advance by the permitting
authority.
8. The Application Shield
Section 503(d) of the Act provides that once a timely and
complete application has been filed, the applicant is shielded
from enforcement action for operating without a permit until such
time as the permit is issued. Two provisions in the proposed
regulations, sections 70.7(b)(2) and (3), were related to this
"application shield" in that they directly concerned the
determination of whether a permit application submitted was
timely or complete. One provision in the proposal provided a
grace period of up to three months to submit applications or
additional information requested by the State after the required
submittal date. Another provision allowed the shield for timely
applications that the permitting authority determined to be
incomplete despite a "good faith" effort on the part of the
source, provided that the source expeditiously cured the defect.
Several commenters criticized offering the protection of the
application shield for late application submittals. The
Administrator, upon consideration of these comments and after
further study, has decided to delete from the final rule these
two provisions, proposed sections 70.7(b)(2) and (3). The 3
month grace period for submitting a timely application
effectively extended the "application shield" to sources that did
not submit a timely application, which would have been
inconsistent with section 503(c) of the Act. This section does
not allow any additional time beyond the deadlines specifically
provided. Furthermore, the Administrator now believes that this
provision would have violated section 502(a) of the Act by
allowing a source to operate without a permit (given that the
application shield would not have applied). Similarly, the "good
faith" exception to the requirement that only timely and complete
applications provide an application shield has been deleted from
the final rule. This provision was deleted because it was not
required by the statute and because it would have effectively
shielded all sources from enforcement action for not submitting a
complete application. In this context, a "good faith"
determination would be too subjective to provide a clear standard
for either industry or the permitting authorities.
F. Section 70.6 - Permit Content
1. Applicable Requirements of the Act
Title V requires that operating permits assure compliance
with each applicable standard, regulation, or requirement under
the Act, including the applicable implementation plan
[502(b)(5)(A), 504(a), and 505(b)(1)]. Thus, the permitting
authority and EPA should clearly understand and agree on what
requirements under the Act apply to a particular source. Section
70.6(a)(l)(i) requires that the permit reference the authority
for each term and condition of the permit. Including in the
permit legal citations to the provisions of the Act is critical
in defining the scope of any permit shield, since the permit
shield, if granted, extends to the provisions of the Act included
in the permit. Including the legal citations in the permit will
also ensure that the permittee, the permitting authority, EPA,
and the public all have a common understanding of the applicable
requirements included in the permit. This requirement is
satisfied by citation to the State regulations or statutes which
make up the SIP or implement a delegated program. Under section
505(b)(1), EPA must object to permits that fail to assure
compliance with the applicable requirements and will look to the
available record for clarification as what these requirements
should be. The following clarifies the EPA position with respect
to several issues regarding applicable requirements.
(a) Requirements with future compliance dates. The
proposal defined "applicable requirements" as the substantive
requirements arising under other sections and titles of the Act.
The definition in the final part 70 regulations clarifies that
"applicable requirements" include not only those requirements
that are in effect at the time of permit issuance, but also
include those that have been promulgated prior to permit issuance
and that have future effective compliance dates during the permit
term. This furthers the Act's and EPA's goal that the permit
embody all relevant requirements applicable to the source.
The EPA recognizes the potential for sources to have to
repeat permit issuance procedures where an applicable requirement
is promulgated close to permit issuance. This problem is to some
extent inherent in any permit program which, like title V,
attempts to make the permit the comprehensive document for
requirements applicable to the source. Because this problem was
not addressed in either the proposal or comments received on the
proposal, it will need to addressed in a revision to the part 70
regulations to be proposed in a future Federal Register notice.
The EPA plans to revise part 70 to allow for a system of
grandfathering in which requirements promulgated after the close
of the public comment period and within a certain time period
(EPA intends to solicit comment on a range of from 90 to 150 days
after close of the comment period) would not have to be
incorporated into the permit prior to issuance. For requirements
promulgated within the specified time period, but which the State
is not required to include in the permit initially, the permit
will need to be reopened pursuant to the requirements of section
502(b)(9). However, if the permitting authority fails to issue
the permit within that time period, the permit could be issued
after that period only if the applicant certified that no new
requirement applicable to the source had been promulgated since
the closing of the public comment period.
(b) Section 112(r) accidental release program. The
definition of "applicable requirements" was also revised to
clarify that requirements of section 112(r) of the Act, regarding
the accidental release program, are applicable requirements.
This would include any requirement under section 112(r)(7) to
prepare and register a risk management plan (RMP). The EPA
recognizes, however, that an RMP is not in any sense a "permit"
to release substances addressed therein, and that section 112(r)
was not intended to be primarily implemented or enforced through
title V [112(r)(7)(F)]. The EPA therefore believes it sufficient
for purposes of title V to require only that the source indicate
in its permit that it has complied with any requirement to
register an RMP, or alternatively to indicate in its compliance
plan and schedule of compliance its intent to comply with such
requirement. The RMP itself need not be included in the title V
permit.
(c) NAAQS. The EPA proposed that the NAAQS is a SIP
requirement, not an "applicable requirement" for title V permits.
In the case of large, isolated sources such as power plants or
smelters where attainment of the NAAQS depends entirely on the
source, EPA proposed that the NAAQS may be an applicable
requirement and solicited comment on this position.
An environmental group commented that excluding protection
of ambient standards, PSD increments or visibility requirements
as applicable requirements is unlawful and bad policy. It argued
that section 504(e) expressly defines "requirements of the Act"
as "including, but not limited to, ambient standards and
compliance with applicable increment or visibility requirements
under part C of title I." Although this provision applies only
to temporary sources, the group asserts that it would be
anomalous for Congress to impose more comprehensive permit
requirements for temporary sources than for permanent sources.
The EPA disagrees with the comment that would apply section
504(e) to permanent sources. Temporary sources must comply with
these requirements because the SIP is unlikely to have performed
an attainment demonstration on a temporary source. To require
such demonstrations on every permitted source would be unduly
burdensome, and in the case of area-wide pollutants like ozone
where a single source's contribution to any NAAQS violation is
extremely small, performing the demonstration would be
meaningless. Under the Act, NAAQS implementation is a
requirement imposed on States in the SIP; it is not imposed
directly on a source. In its final rule, EPA clarifies that the
NAAQS and the increment and visibility requirements under part C
of title I of the Act are applicable requirements for temporary
sources only.
(d) Preconstruction permits under regulations approved or
promulgated under title I. This definition was changed in part
to clarify that applicable requirements include terms and
conditions of preconstruction permits issued pursuant to SIP's
and other regulations approved by EPA in a formal rulemaking
after notice and an opportunity for public comment.
(e) Alternative scenarios and emissions trading. EPA
believes that providing for permits with alternative operating
scenarios, including emissions trading provisions to the extent
provided for in the applicable requirements, will be a critical
element of any part 70 program and useful in ensuring the
implementation of all applicable requirements. If the permit
contains approved alternative scenarios or emissions trading
provisions, it will be a more complete representation of the
operation at the permitted facility. Moreover, there will be
less need for permit modifications to accommodate different
operations at the facility. Therefore, EPA is requiring that
alternative operating scenarios, including emissions trading
provisions provided for in the applicable requirements,
identified by the source be included in the permit as part of the
mandate in section 502(b)(6) to include "[a]dequate, streamlined,
and reasonable procedures" for permit actions in these
regulations.
Obviously, all such scenarios and emissions trading
provisions must comply with the permit requirements of title V
and the underlying applicable requirements. Under section
70.6(a)(9) for alternative scenarios, the source must keep a
contemporaneous record of any change from one scenario to
another. Under section 70.6(a)(10), the permit must assure that
emissions trading provisions contain the appropriate compliance
provisions required under these regulations. The permitting
authority may extend the permit shield to any such scenario or
emissions trading provisions, because they are provided for in
the permit and the permit will include the compliance terms for
those scenarios or trades.
There is an important distinction between the mandate for
emissions trading in this provision and the authorization in
section 70.6(a)(1)(iii) for permits to establish alternative
emissions limits equivalent to SIP limits where the SIP allows
for such equivalency determinations. Under 70.6(a)(10), the
State will have developed and EPA will have approved the
emissions trading program into the SIP or applicable requirement
with the intention that it would allow trading without case-by-
case review. The State and EPA would also assure that the SIP or
applicable requirement provides replicable procedures to ensure
that trades are accountable, enforceable, and quantifiable.
Under section 70.6(a)(1)(iii), however, the SIP provision
authorizing the alternative emission limits will not necessarily
have established in advance the replicable procedures to ensure
that the alternate limits are accountable, enforceable, and
quantifiable. Section 70.6(a)(1)(iii) requires the permitting
authority to establish such procedures in the permit itself as
part of a full permit issuance, renewal, or significant
modification process. Such alternative limits are not a
mandatory part of a permit because it may be impossible to
establish for some types of SIP limits equivalent limits that are
accountable, enforceable, and quantifiable under replicable
procedures. Therefore, the permitting authority must retain the
discretion not to include alternate limits in the permit under
section 70.6(a)(1)(iii).
(f) Equivalency Determinations. In order to take advantage
of the flexibility provided by the title V permit program, EPA
has added a provision [section 70.6 (a)(1)(iii)] which allows
States to develop alternative emissions limits through the permit
program. Under this section, a State may choose to adopt a SIP
provision that would authorize sources to meet either the SIP
limit or an equivalent limit to be formulated in the permit
process. Such a provision would allow a State to build
additional flexibility into its SIP program. A permit issued
pursuant to such a provision would have to contain the
equivalency determination, as well as provisions that assure that
the resulting emission limit is quantifiable, accountable,
enforceable, and based upon replicable procedures (see discussion
above of these terms in the emissions trading context). The
permit application must demonstrate that the permit provisions
are equivalent to the SIP limit as well as quantifiable,
accountable, enforceable, and based on replicable procedures.
Consistent with these requirements, States may adopt such SIP
provisions for all appropriate SIP requirements or only for
specific requirements for which the State determines equivalency
determinations are appropriate. The determination of what
constitutes an equivalent limit could take place either during
the permit issuance or renewal process or as a result of the
significant modification procedures. The State retains
discretion, subject to EPA veto, to decide if an alternative
emission limit is justified in any particular case.
2. Permit Shield
(a) Scope of the permit shield. Section 504(f) of the Act
states that, if certain conditions are met, the permit may
provide that compliance with the permit shall be deemed
compliance with other applicable provisions of the Act that
relate to the permittee. This is referred to as the "permit
shield." The proposed regulation allows the permitting
authority to provide under certain circumstances that a source in
compliance with the part 70 permit be considered to be in
compliance with other applicable provisions of the
Act. For such a permit shield to be in effect, either the permit
must include the applicable requirements of such provisions or
the permitting authority must determine that the specified
provisions are not applicable to the source. The permit must
expressly state that a permit shield exists. A permit lacking
such express statement is presumed to have no shield.
Provisions of sections 303 (emergency orders) and
section 408(a) of the Act (the acid rain program), are applicable
regardless of the existence of a permit shield. The owner or
operator of a source is liable for violations prior to or at the
time of permit issuance. The source cannot be shielded from the
requirement to provide EPA information pursuant to section 114 of
the Act.
In support of its proposal, the Agency cited that one of the
objectives of the title V permitting program is to create a
single document that serves as a comprehensive statement of a
source's obligations for air pollution control. Through the use
of a permit shield the document may, for a period of time,
provide a degree of certainty to the source regarding its
obligations. EPA's proposal suggested allowing a broad
interpretation of the permit shield. Under this interpretation,
a source would be protected from enforcement for noncompliance
with any applicable requirement of the Act as long as the source
was in compliance with all requirements of the source's title V
permit. If the permit had misinterpreted applicable
requirements, the source would not be obligated to comply with
the correctly interpreted requirements. The source would also be
shielded from any newly promulgated Federal requirements until
the title V permit was reopened and the requirement(s) were
incorporated into the permit.
Other goals of the title V program are to implement the Act
and to generate improvements in air quality through the
enforcement of existing regulations and the timely implementation
of newly promulgated regulations. Thus, a balance must be struck
between providing certainty to sources as to which requirements
are applicable to them and how these requirements are
interpreted, and achieving improvements in air quality. This
balance can be achieved by appropriately defining the scope of
the permit shield, when a shield expires, and when a permit must
be terminated, modified, or revoked and reissued for cause.
The EPA received many comments on the permit shield
provision. While industry commenters strongly endorsed the broad
interpretation of the permit shield provision, State agency and
environmental commenters argued for limits to the permit shield,
or the elimination of the permit shield concept altogether.
There was strong opposition to requiring the permit shield as
part of the permit content.
In response to comments received, and upon further analysis
of the statutory provision at issue, the Administrator has
modified the position set forth in the proposal. The EPA has
decided to adopt a "narrow" interpretation, under which a source
cannot be shielded from applicable regulations, standards,
implementation plans, or other requirements promulgated after
issuance of a title V permit.
In analyzing the strengths and weaknesses of the competing
shield theories, EPA examined both the text and the structure of
the statute. Section 504(f) of the Act provides two situations
where a shield can be applied to applicable provisions of the Act
other than those found in section 502. Section 504(f)(1) of the
Act states that the shield can apply if "the permit includes the
applicable requirements of such provisions." Section 504(f)(2)
of the Act sets forth the other situation where a permit shield
may apply: "the permitting authority in acting on the permit
application makes a determination relating to the permittee that
such other provisions (which shall be referred to in such
determination) are not applicable and the permit includes the
determination or a concise summary thereof." It is clear from
the language of the Act that only requirements that have been
reviewed by the permitting authority and identified as such in
the permit can be shielded against. Review by the permitting
authority would include a determination of applicability and a
determination of the source's obligation(s) under the
provision(s). This review includes the opportunity for public
participation, EPA veto, and judicial review.
Section 504(f)(1) cannot be the basis for mounting a shield
against later-enacted requirements, since such requirements,
having not been in existence at the time the permit was issued
could not, perforce, have been included in it. A permit cannot
contain "applicable requirements" that have not been adopted.
The fact that Congress required, in order to shield against a
provision, a permit to include all, as opposed to some,
requirements of that provision, indicates that Congress intended
an identity between what was contained in the permit and the
provision shielded against.
If a permit does not qualify for the shield on the grounds
that it includes applicable requirements of a provision, as
provided under section 504(f)(1), then the only basis for
shielding against a provision is pursuant to section 504(f)(2).
To qualify under that section, the permitting authority "in
acting on the permit application" must make a determination,
specifically referring to the provisions at issue, that such
provision is not applicable. The permitting authority must
specify and refer to the provision. Such a determination cannot
refer to a provision not yet in existence. And if it refers to a
provision that exists, but is later changed, the determination
would not be referring to the later provision, but to its
predecessor. Further, this approach would be inconsistent with
the intent of providing for public review of determinations of
inapplicability. The public could not review a determination of
inapplicability of a provision not yet enacted. Section
504(f)(2) of the Act is designed to set down in an authoritative
and public fashion the way in which existing legal requirements
apply to a source. Section 504(f)(2) is, therefore, not intended
to prevent later-enacted requirements from being fully applicable
to the source.
In addition to textual obstacles, there exists a powerful
structural argument against the broad shield. Put simply, a
broad shield would effectively abrogate specific Congressional
mandates such as section 112 requirements for implementing MACT
standards and would significantly handicap States in their
planning for effectiveness of new requirements designed to meet
other Congressional goals. In particular, the deadlines for air
toxics were the focus of much debate during the amendment
process, and Congress gave no indication that it intended EPA to
revise these dates by expanding the permit shield. Compliance
with new requirements designed to meet NAAQS progress and
attainment deadlines would also be haphazard and completely
dependent on the happenstance of individual permit issuance. It
is inconceivable that Congress, with its overwhelming concern for
the timing of requirements in title I, would, with no discussion
and no explicitness, have placed such a roadblock in the path of
State planning. A permit system that undermines the
enforceability of other provisions of the Act would not vindicate
Congressional purposes.
The EPA maintains its position that the shield cannot apply
to provisions related to title IV of the Act, the acid rain
provisions. As the proposal noted, EPA believes that section 408
bars the permit shield for acid rain requirements [56 FR 21744]
(sections 408(a) and 414). The EPA believes that shielding
sources from acid rain requirements would disrupt effective
implementation of that important new program.
(b) Term of the permit shield. Industry suggested that the
shield extend during the time a permit expires when action on
permit renewal is delayed and that the shield should remain in
force while a permit is reopened for cause.
State representatives and environmentalists suggested that
the permit should be reopened if the permit is found to be in
error as the shield cannot exempt a source from an effective
provision of the Act. They also suggested that the permitting
authority should be allowed to revoke the permit shield if
information submitted is found to be false, incomplete or
misleading.
The EPA's position is that the application shield applies if
the permit lapses and the source has submitted a timely and
complete application and there is a delay in issuing the permit
renewal. The EPA's position with respect to the permit shield
(as it applies to the terms and conditions of the permit) is that
this type of shield continues to apply if the permit lapses.
Under EPA's interpretation of the shield to exclude later
promulgated requirements, these would of course continue to be
applicable to the source.
3. Monitoring
Section 504(c) provides that every permit issued under title
V shall contain monitoring requirements "to assure compliance
with the permit terms and conditions." This statutory provision
is implemented through section 70.6(a)(3)(i) of the regulations.
If the underlying applicable requirement imposes a requirement to
do periodic monitoring or testing (which may consist of
recordkeeping designed to serve as monitoring), the permit must
simply incorporate this provision under section 70.6(a)(3)(i)(A).
If the underlying applicable requirement imposes no such
obligation, under section 70.6(a)(3)(i)(B) the permit must
require periodic testing or instrumental or noninstrumental
monitoring (which may consist of recordkeeping designed to serve
as monitoring) which yields reliable data from the relevant time
period that are taken under conditions representative of the
source's operations and, therefore, representative of the
source's compliance with its permit. Appropriate monitoring or
testing may include noninstrumental monitoring or testing
techniques such as opacity readings using an EPA approved method.
Any monitoring or testing method or procedure approved by EPA for
determining compliance may be used to satisfy the requirement of
70.6(a)(3)(i)(B).
Examples of situations where section 70.6(a)(3)(i)(B) would
apply include a SIP provision which contains a reference test
method but no testing obligation, or a NSPS which requires only a
one time stack test on startup. Any Federal standards
promulgated pursuant to the Act amendments of 1990 are presumed
to contain sufficient monitoring and, therefore, only section
70.6(a)(3(i)(A) applies. EPA will issue guidance for public
review within eighteen months addressing which applicable
requirements contain insufficient monitoring and the criteria EPA
will apply in determining the types of monitoring which would
satisfy the requirement of section 70.6(a)(3)(i)(B). To the
extent that EPA identifies any federally promulgated requirement
with insufficient monitoring, EPA will issue a rulemaking to
revise such requirement.
In some instances, a recordkeeping obligation will be
sufficient to meet the requirement of section 70.6(a)(3)(i). An
example would be a VOC coating source which uses complying
coatings and relies on no control equipment to meet the
applicable SIP limit. For this type of source, an obligation to
keep records of and periodically certify and report the contents
of all coatings used would be sufficient.
4. General Permits
The proposal reflected the language of section 504(d) of the
Act, which allows States to issue a general permit covering
numerous similar sources. Sources covered by general permits
must comply with all part 70 requirements, including the
requirement for submitting a permit application. General
permits, however, do not apply to affected sources (acid rain),
unless provided for under title IV regulations. The proposal
solicited comment as to how the general permit should be applied
to specific sources.
Commenters requested that EPA allow more flexibility for
general permits and allow States to formulate their own general
permit applications and general permits.
The final rule clarifies that once the general permit has
been issued after an opportunity for public participation and EPA
and affected State review, the permitting authority may grant or
deny a source's request to be covered by a general permit without
further public participation or EPA or affected State review.
The rule further clarifies that this action of granting or
denying the source's request will not be subject to judicial
review.
The primary purpose of section 504(d) is to provide an
alternative means for permitting sources for which the procedures
of the normal permitting process would be overly burdensome, such
as area sources under section 112. See H.R. 101-490, 101st
Cong., 2nd Sess., 350 (1990). This purpose would be
substantially frustrated if sources subject to a general permit
were required to repeat public participation procedures at the
individual application stage, or if each applicability
determination were subject to judicial review.
To ensure that the general permit process is not abused, for
example, by a source that misrepresents facts in its request for
the general permit, this section provides that a source receiving
a general permit shall be subject to an enforcement action for
operating without a part 70 permit, notwithstanding the permit
shield provisions, if the source is later determined not to
qualify for coverage under the general permit. The EPA believes
that this approach strikes the appropriate balance between the
procedural advantages intended by section 504(d) and the need to
protect the integrity of the permitting process.
In setting criteria for sources to be covered by general
permits, States should consider all of the following factors.
EPA may object to general permits that do not meet these factors.
First, categories of sources covered by a general permit should
be generally homogenous in terms of operations, processes, and
emissions. All sources in the category should have essentially
similar operations or processes and emit pollutants with similar
characteristics. Second, sources should not be subject to case-
by-case standards or requirements. For example, it would be
inappropriate under a general permit to cover sources requiring
case-by-case MACT determinations. Third, sources should be
subject to the same or substantially similar requirements
governing operation, emissions, monitoring, reporting, or
recordkeeping.
Sources, including those emitting air toxics, may also be
issued general permits strictly for the purpose of avoiding
classification as a major source. For example, if sources above
a certain emissions level are subject to stringent requirements,
it may be feasible to cover sources below that level under a
general permit that has, as its principal requirement, a
condition that the emissions level is not exceeded.
Based on preliminary information, EPA intends to develop
model general permits for certain source categories. In
particular, the Agency is considering development of model
general permits for degreasers, dry cleaners, small heating
systems, sheet fed printers, and VOC storage tanks.
Individual sources covered under a general permit may be
issued an individual permit, or alternatively, a letter, or
certification may be used. Provided the individual permit,
letter or certification is located at the source, the States need
not require that sources also have a copy of the general permit;
this can be retained on file at the permitting authority's office
or at the source's corporate headquarters in the case of
franchise operations. The permitting authority may also
determine in the first instance whether it will issue a response
for each individual general permit application and may specify in
the general permit a reasonable time period after which a source
that has submitted an application will be deemed to be authorized
to operate under the general permit.
General permits may be issued to cover any category of
numerous similar sources, including major sources, provided that
such sources meet the criteria set out above. For example,
permits can be issued to cover small businesses such as gas
stations or dry cleaners. General permits may also, in some
circumstances, be issued to cover discrete emissions units, such
as individual degreasers, at industrial complexes. Such a unit
at an industrial complex can be covered by a general permit if
the requirements for a general permit are met and the change is
one for which a new permit is appropriate. Where a general
permit is issued to a discrete emissions unit at an industrial
complex, the requirements of the general permit could be
incorporated into the relevant title V operating permit at the
next renewal.
5. Emergencies
The proposal did not specifically provide for the handling
of emergencies that result in deviations from the terms of the
permit. Comments were received requesting that the part 70
regulations make some provision for emergencies or "upsets"
caused by the failure of emission control equipment. The EPA
believes it is appropriate, consistent with the emphasis in the
part 70 regulations on providing sources with adequate
operational flexibility, to include such a provision in the final
rule.
Section 70.6(g) now provides for an affirmative defense in
the case where permit allowables have been exceeded due to an
emergency. "Emergency" is in turn defined as a reasonably
unforeseeable event beyond the control of the source that
requires immediate corrective action to restore normal operation
and that is not due to certain factors specified in the rule. To
establish the defense, the permittee must prove each of the four
factors enumerated in section 70.6(g)(3). Section 70.6(g) is
modeled after the NPDES permit upset provision in 40 C.F.R.
section 122.41.
Courts have held, in the Clean Water Act context, that a
NPDES permit must contain upset provisions to account for the
inherent fallibility of technology in technology-based standards.
See, e.g., Marathon Oil Co. v. EPA 565 F.2d 1253, 1273 (9th Cir.
1977). Other cases have upheld EPA's decision not to promulgate
upset provisions, reasoning that the exercise of enforcement
discretion is adequate protection of the permittee's interests.
Corn Refiners Ass'n, Inc. v. Costle, 594 F.2d 1223, 1226 (8th
Cir. 1979); Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1056-58
(D.C. Cir. 1978). The idea that technology-based standards
should account for the fallibility of technology has been
affirmed in the context of New Source Performance Standards under
the Act. See, e.g., Essex Chemical Corp. v. Ruckelshaus, 486
F.2d 427 (D.C. Cir. 1973).
EPA believes that the emergency provision of section 70.6(g)
is appropriate in order to provide permitted sources with an
affirmative defense where an enforcement action is brought for
exceedances of technology-based standards due solely to the
unforeseeable failure of technology. Implicit in section 70.6(g)
is that the affirmative defense will not be available for
violations of health-based standards. This is appropriate
because such standards, such as NAAQS or NESHAP, are formulated
largely without regard to the limits of technology. The EPA
believes that to excuse violations of these standards would be
contrary to Congressional intent. In Natural Resources Defense
Council v. EPA, the D.C. Circuit held that Congress did not
intend to tie water quality-based limitations to the capabilities
of any given technology. 859 F.2d 156 (D.C. Cir. 1988). This
reasoning is at least as compelling in the context of health-
based air quality standards.
This provision for emergencies does not limit the
opportunity any permitted source might otherwise have to contact
the permitting authority in the event of an emergency. Nothing
in these regulations requires the permitting authority to respond
to emergencies in any particular manner.
6. Voluntary Limits
Title V permits are an appropriate means by which a source
can assume a voluntary limit on emissions for purposes of
avoiding being subject to more stringent requirements. Section
70.6(b)(1) has been revised to clarify that such terms and
conditions assumed at the request of the permittee for purposes
of limiting a source's potential to emit will be federally
enforceable.
The EPA recognizes that sources may wish to limit their
potential to emit in this way prior to there being an approved
State permit program. For sources of criteria pollutants, a
method already exists by which a State preconstruction review
program or operating permit program approved into a SIP may be
used to limit a source's potential to emit. See Final Rule:
Requirements for the Preparation, Adoption, and Submittal of
Implementation Plans; Approval and Promulgation of Implementation
Plans, 54 Fed. Reg. 27274, June 28, 1989. However, sources
emitting hazardous air pollutants listed in section 112(b), some
of which may be subject to regulation prior to approval of State
permit programs, may desire an alternate means of limiting their
potential to emit hazardous air pollutants. Accordingly, EPA is
considering allowing States to use programs approved under
section 112(l) as a means of developing federally-enforceable
limits on the potential to emit section 112(b) pollutants.
Implementing this concept will require the resolution of many
issues more appropriately addressed in the forthcoming guidance
issued pursuant to section 112(l)(2).
Several commenters urged the Agency to adopt a simple
procedure to allow sources voluntarily to restrict their
potential to emit so as not to become subject to title V
permitting obligations. As noted in the proposed rule, such a
restriction must be federally enforceable in order to serve this
purpose. In response to the concerns raised by these commenters,
EPA has structured the final rule to provide several simple
mechanisms that will allow sources to adopt federally-enforceably
restrictions on their potential to emit. First, as discussed
above, a restriction adopted under an existing State
preconstruction review or operating permit program that has been
approved into a SIP will be sufficient for this purpose. State
programs approved under section 112(l) may also be available as
methods to limit a source's potential to emit. In addition, as
discussed above, States may issue general permits to sources
strictly for the purpose of allowing those sources to avoid
classification as a major source. The EPA recognizes that it
seems somewhat counterintuitive to rely on a general permit to
relieve a source of other permitting obligations. However, EPA
believes that general permits will provide a simple,
straightforward mechanism for sources to adopt federally-
enforceable restrictions on their potential to emit and therefore
avoid more burdensome permitting obligations.
G. Section 70.7 - Permit Issuance, Renewal, Reopenings, and
Revisions
1. Permitting Authority's Action on Permit Application
Under section 70.7(a)(5), the permitting authority, in
acting on a permit application, must transmit to EPA (and others
upon request) a statement setting forth the legal and factual
basis for the permit conditions included in the draft permit.
Conversely, should the permitting authority deny the permit
application, it should prepare a statement of the grounds for
denial.
2. Permit Revisions
(a) General. The EPA proposed that the statutory language
in section 502(b)(6) leaves substantial discretion to the States
to devise appropriate procedural schemes for making expeditious
revisions to permits, including "fast-track" procedures to
facilitate operational flexibility. As a matter of policy, EPA
encouraged (but did not require) States to implement minor permit
review procedures for changes that result in emission increases
above permit allowables, but that are not title I modifications
and do not violate any applicable Federal requirements, as long
as such procedures include at least 7 days advance notice to the
permitting authority and the Administrator. After waiting the
required 7 days, the source could make the change unless the
permitting authority objected to the noticed change within the 7
day period. If the permitting authority did not object to the
change as a minor permit amendment, it would have 60 days from
receipt of the notice to revise the permit.
The EPA proposed to review proposed State procedures for
revising permits in conjunction with EPA's review of the State
program. The basic test would be whether a State's procedural
system, taken as a whole, could assure that the national ambient
air quality standards and other substantive requirements of the
Act would be maintained and enforceable. The EPA then solicited
general comment on what criteria would be appropriate for EPA to
use in approving State procedures for revising permits.
Industry commenters supported proposed section 70.7(f), the
"minor permit amendment" provision. They stated that this
provision is necessary to accommodate inevitable, but
unforeseeable, changes in production and to compete successfully
in international markets.
State commenters, on the other hand, noted that section
70.7(f) appeared to violate section 502(b)(6), which requires
public notice and an opportunity for judicial review. These
commenters also stated that it would be impossible to resolve any
issues within the 7-day period, or to give an adequate review
within the allotted time frame. A national group of State and
local agencies suggested that if the minor permit amendment
remains, EPA should set a specific de minimis threshold of 5 tons
or 20 percent of the major source cut-off, whichever is more
stringent.
Environmental groups argued that the law clearly requires
public comment and agency review, and opportunity for judicial
review for permit revisions. They argued further that a permit
whose terms can be changed at will by the source is not
enforceable, which violates the basic requirement of title V that
permits be enforceable.
Section 70.7(f) as proposed appeared to authorize a source,
in a very expedited process, to make changes resulting in an
increase in emissions above the emissions allowable under its
permit, provided that the changes did not constitute
modifications under title I, merely upon providing a 7 day notice
to the permitting authority and EPA. It is not entirely clear
from the proposal as written whether EPA intended the 7 day
notice to the permitting authority and EPA to be merely a
necessary, as opposed to a necessary and sufficient, requirement.
There is some dissonance between the text of the proposed
regulation and the preamble, which expresses uncertainty about
what additional procedures may be required for an approvable
"procedural system" for fast-track revisions, and solicits
comment on the appropriate criteria for EPA to use in approving
State revision procedures [56 FR 21747].
For the reasons set out in detail below, the Administrator
is today promulgating a rule that calls for review by the
permitting authority, affected States, and EPA before part 70
permits can be revised, but does not require public notice and
comment for those permit modifications qualifying for minor
permit modification procedures. It bears repeating that title V
permitting cannot relax any applicable requirements, including
those contained in the SIP. The final part 70 regulations
therefore directly address not only those substantial comments
that called for a process allowing reasonable time for State
review, an adequate opportunity for public comment and a hearing,
and an opportunity for EPA and affected State review, but also
those who voiced concerns over the ability of a source to rewrite
its permit to avoid enforcement.
The EPA's final regulations governing permit revisions
balance several, sometimes conflicting, goals of the permit
program. First, as explained above, the procedures for revising
a permit should provide appropriate opportunities for the
permitted source, permitting authority, EPA, affected States,
and, where appropriate, the public to determine that the permit
faithfully applies the Act's requirements. Second, any revision
process must be tailored so that the procedural burdens on the
permitted facility and permitting authority are reasonable in
relation to the significance and complexity of the change being
proposed in the permit. Third, the process must provide
permittees with a reasonable level of certainty and ability to
plan for change at the facility. Finally, the regulations must
be flexible so that States may adapt their existing programs to
meet part 70 requirements without unnecessarily displacing
procedures that have operated before the advent of the Federal
operating permit program.
To accommodate these goals, EPA will allow States to develop
different types of review procedures that match the procedural
elements to the significance of the change. These options are in
addition to the considerable flexibility provided elsewhere in
the regulation, which accommodates many types of operational
changes without the need for a permit revision. Today's rule
suggests two possible approaches that employ the minimum
procedures required by the Act for different types of changes.
The track for significant changes essentially mirrors the permit
issuance process. In this track, the public, the permitting
authority, affected States, and EPA will review the revision in
the same sequence they will use at permit issuance. The other
track, which the Agency has named "minor permit modification
procedures," is designed for smaller changes at a facility. Such
changes will not involve complicated regulatory determinations.
In this track, in certain cases, a source may make a change after
notice, but prior to the time the permitting authority, affected
States, and EPA review the revision. The permittee may make a
requested change immediately after filing the application.
The minor permit modification procedures set forth the most
streamlined process that would be approved by EPA. The EPA would
not approve a more streamlined process that did not provide an
opportunity for review by the permitting authority, EPA, or
affected States.
In each track, EPA has provided the permitting authority,
affected States, and EPA an opportunity to review the proposed
revision. What distinguishes the two tracks is: (1) whether
public review is required; and (2) the point in the process at
which the permittee may make the change after proposing it to the
permitting authority. In reviewing comments from industry, it is
clear to EPA that industry's primary concern is that quickly
changing business conditions require changes in operation on
little or no notice. This could not be accommodated by a process
of indeterminate length that could delay any decision on even the
most routine or noncontroversial changes, despite the permittee's
good faith efforts to pursue the revision process. Industry
comments do not dispute the fundamental obligation that any
permit revision must comply with the applicable requirements, but
maintain that the process should not unreasonably delay a
decision to allow a facility to comply with the Act under revised
permit terms. The minor permit modification procedures are
designed to address these concerns within the framework of title
V.
(b) Legal basis for minor permit modifications. The issues
surrounding whether public notice and procedure are necessary for
minor permit modifications proved to be among the most
controversial issues raised by the proposal. These issues
engendered many comments from affected sources, the States,
environmental groups, and others. For these reasons, EPA also
sought and received a legal opinion (dated May 27, 1992) from the
Department of Justice concerning the extent of EPA's discretion
to allow States to adopt procedures allowing minor modifications
to permits without public notice and comment.
EPA has carefully considered the issues in light of the
public comments received and the opinion from the Department of
Justice, and has decided to adopt the reasoning provided by the
Department. Briefly, EPA is adopting final rules that allow
States to adopt procedures for making minor permit modifications
without public notice or comment. There are two alternative
bases for this action. First, EPA believes that the statute and
legislative history can be properly construed to allow such an
approach, and second, this approach can also be based upon the
general judicial doctrine that permits de minimis departures from
statutory requirements.
(i) Statutory construction. The Supreme Court established
a two-step approach to analyzing such legal questions in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837
(1984). The first inquiry is whether Congress has "directly
spoken to the precise question at issue." Id. at 842. This
standard is exacting: it requires a "clear indication of
Congress's intent with respect to the precise issue at hand."
Natural Resources Defense Council v. EPA, 859 F.2d 156, 201
(D.C. Cir. 1988). If there is such a clear indication, that ends
the analysis because a court "must give effect to the
unambiguously expressed intent of Congress," as revealed through
application of the traditional tools of statutory construction.
Chevron, 467 U.S. at 842-43 & n.9.
If, however, the statute is silent or ambiguous on the
precise question at issue, the reviewing court will determine
whether the proposed regulation "is based on a permissible
construction of the statute." Id. at 843. Under this second
step of Chevron, the courts must uphold the EPA's interpretation
provided it is "reasonable and consistent with the statute's
purpose." Chemical Mfrs. Ass'n v. EPA, 919 F.2d 158, 162-3 (D.C.
Cir. 1990). Under the second step of Chevron, a court will
substantially defer to the EPA's exercise of its discretion and
will generally confine its analysis to whether the EPA's proposed
rule is reasonable and consistent with the statutory scheme of
title V. See Chemical Mfrs. Ass'n, 919 F.2d at 162-63; Natural
Resources Defense Council v. EPA, 822 F.2d 104, 117 (D.C. Cir.
1987). Moreover, where the question under step two of Chevron
involves the formulation of procedures by the Agency, the
deference accorded the Agency's decisions is especially broad.
See Chemical Mfrs. Ass'n v. Natural Resources Defense Council,
470 U.S. 116, 131 (1985). Where the interpretive issue is
procedural, the Supreme Court's ruling in Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, 435 U.S. 519
(1978), requires courts to be especially deferential to the
agency's interpretation.
In Vermont Yankee, the Court articulated the presumption
that "[a]bsent constitutional constraints or extremely compelling
circumstances the 'administrative agencies "should be free to
fashion their own rules of procedure and to pursue methods of
inquiry capable of permitting them to discharge their
multitudinous duties." 435 U.S. at 543 (quoting FCC v.
Schreiber, 381 U.S. 279, 290 (1965), and FCC v. Pottsville
Broadcasting Co., 309 U.S. 134, 143 (1940). Subsequently, the
Court has made clear that Vermont Yankee's presumption is a
reason to grant even more deference to an agency's interpretation
of a statute under Chevron where the issue ultimately concerns
whether administrative action may be taken through particular
procedural means. Chemical Mfrs. Ass'n, 470 U.S. at 131 (where a
dispute involves an argument over the procedural means to be used
by the agency, "these are particularly persuasive cases for
deference to the Agency's interpretation. Cf. Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 5l9, 543 (1978)."). See
American Trucking Assn's v. United States, 627 F.2d 1313, 1321
(D.C.Cir. 1980) (Wright, J. (the D.C. Circuit "has repeatedly
stated that an agency 'should be accorded broad discretion in
establishing and applying rules for . . . public participation;"
(ellipsis in original) (citing several cases).
Following the framework established by Chevron, the first
question is whether Congress has "directly spoken to the precise
question at issue." Chevron, 467 U.S. at 842 (emphasis added).
In the present case it is significant that, while Congress
referred to public notice in section 502(b)(6), it did not
expressly tie that notice to permit revisions. Section 502(b)(6)
requires the EPA to establish "adequate, streamlined, and
reasonable procedures" for four elements of any permitting
program:
(1) "for expeditiously determining when applications are
complete,"
(2) "for processing such applications,"
(3) "for public notice, including offering an opportunity
for public comment and a hearing, and"
(4) "for expeditious review of permit actions, including
applications, renewals, or revisions, and including an
opportunity for judicial review in State court of the final
permit action by the applicant, any person who participated
in the public comment process, and any other person who
could obtain judicial review of that action under applicable
law."
42 U.S.C. Section 7661(a)(b)(6) (emphasis added).
Unlike the other three elements, the "public notice" element
-- element (3) -- does not indicate to what actions it applies.
The text of section 502(b)(6) does not directly tie the "public
notice" element to any of the Agency actions referred to in
elements (1), (2) or (4). That a procedure for public notice is
referred to in element (3) thus does not alone determine the
types of actions to which such notice applies: rather, it could
be read simply as a requirement that to the extent public notice
and comment are required or provided, the EPA must establish
adequate, streamlined, and reasonable procedures for the States
to use to obtain public comment. Alternatively, even if one were
to consider it unambiguously clear that public comment is
necessary for initial permit "applications," the statute remains
ambiguous as to whether public notice is necessary for the
various permit actions listed in element (4), including not only
"applications" but also "renewals" and "revisions". Congress
thus did not clearly require public notice and comment for all
"permit actions."
Where Congress has required public notice and an opportunity
for comment in title V, it has applied the requirement directly
to the specified agency action. Subsection (d) of section 504,
for example, provides that "[t]he permitting authority may, after
notice and opportunity for public hearing, issue a general permit
covering numerous similar sources." 42 U.S.C. section 7661c(d).
See also, e.g., 42 U.S. C. section 7661f(c)(2) ("Upon petition by
a source, the State may, after notice and opportunity for public
comment, include as a small business stationary source for
purposes of this section any stationary source which does not
meet the criteria [for a small business] but which does not emit
more than 100 tons per year of all regulated pollutants.")
(emphasis added).
Numerous provisions in the Act itself and in other
environmental statutes setting forth notice and comment
requirements demonstrate that Congress can and does formulate and
apply explicit provisions for public comment to particular types
of activities. For example, section 169A of the Act requires
"notice and opportunity for public hearing" before the EPA may
exempt a major stationary source from a retrofit requirement if
that source is contributing to visibility impairment. 42 U.S.C.
section 7491 (b), (c)(1). Similarly, section 165 of the Act
requires that construction permits issued for new major emitting
facilities be subject to "a public hearing . . . with opportunity
for interested persons . . . to appear and submit written or oral
presentations on the air quality impact of such source." Id.
section 7475(a)(2). The Clean Water Act requires the EPA to
provide an "opportunity for public hearing" before issuing a
pollutant discharge permit, 33 U.S.C. section 1342(a)(1), and the
Resource Conservation and Recovery Act requires public notice
and, if requested, an "informal public hearing (including an
opportunity for presentation of written and oral views)" prior to
the issuance of any hazardous facility permit, 42 U.S.C. section
6974(b)(2).
These examples all reinforce the basic conclusion that if
Congress meant to require a comment period for all permit
revisions, Congress would have directly so stated. The absence
in title V of any explicit provision for public comment on permit
amendments suggests that Congress did not intend to require such
notice.
We note that the opportunity for judicial review in element
(4) is extended to, among others, "any person who participated in
the public comment process." It could be argued that this
language implies the need for public notice and opportunity for
comment in all permitting actions.
However, EPA notes that element (4) established an
opportunity for judicial review, not public comment. It would be
both awkward and unusual for Congress to specify in such an
indirect manner that the public notice and comment element must
apply to precise categories of permit actions. Thus we do not
think it plain that element (4) is to be read in conjunction with
element (3) as a refinement on the public comment provision.
Rather, it can be argued that under element (3), the extent of
the public comment process is to be determined by the State
permitting agency under guidance from the EPA, see Natural
Resources Defense Council v. EPA, 859 F.2d at 175-76, and the
only clear statutory imperative governing the EPA's
implementation of element (3) is that any procedures for public
notice and comment be "[a]dequate, streamlined, and reasonable."
It is not anomalous that judicial review may be available,
but notice and comment were not provided. There will be
available a record for judicial review that will include the
application for minor permit modification filed by the permittee,
the proposed permit, the statement of basis for the proposed
permit, and the State's final action. Courts will conduct review
based on that administrative record, without having to create a
new administrative record through trial de novo, a result
rejected by courts in the past. See generally Camp v. Pitts, 411
U.S. 138, 141-42 (1973).
EPA has also examined the language and structure of section
505 of the Act. Section 505 of the Act sets forth, inter alia, a
procedure under which EPA will receive copies of permit
applications as well as applications for permit modifications or
renewals. See 42 U.S.C. 7661d(a). This section also
establishes procedures whereby the EPA may object to the issuance
of any permit, id. 7661d(b)(1), and for notice to affected and
contiguous States of permit applications and proposed permits
received by the EPA. Section 505(b)(2) provides that any person
may petition the EPA to veto a proposed permit on the basis of
objections raised in "the public comment period provided by the
permitting agency." Id. 7661d(b)(2).
The EPA's initial proposal defined "permit modifications"
and "minor permit amendment" as separate subclasses of "permit
revision." The logical implication of such a distinction would
be that minor permit amendments would not be subject to any
section 505 review procedures (e.g., 45-day EPA review), which
apply to permit applications, "modifications," and renewals.
However, if the terms "modification" and "revision" are used
interchangeably, then minor permit modifications are
modifications within the meaning of section 505(a). The statute,
however, is unclear on the question whether Congress used the
terms "modifications" and "revision" interchangeably in title V.
Neither "modification" nor "revision" is defined in title V.
Courts presume that "the use of different terminology within a
statute indicates that Congress intended to establish a different
meaning," National Insulation Transp. Comm. v. ICC, 683 F. 2d
533, 537 (D.C. Cir. 1982). Interpreting "modifications" as a
subset of "revisions," as the EPA proposed rule did, is also
consistent with the dictionary definitions of "revise" and
"modify." To "revise" is defined generally as to change, amend,
alter, or to correct, improve, update. See Webster's New World
Dictionary 1130 (rev. ed. 1982). Although one dictionary we have
examined does define "revise" to mean a "[t]o change or modify,"
The American Heritage Dictionary 1112 (New College ed. 1976)(as
in to "revise an earlier opinion"), "modify" is usually defined
more narrowly as to limit, regulate, moderate, qualify, change or
alter partially, reduce in degree, or make less extreme, severe,
or strong. See Webster's at 914; Random House at 858; American
Heritage at 844. Accordingly, EPA believes that the requirements
of section 505 do not necessarily apply to permit revisions as
distinct from permit modifications.
Even if EPA were to conclude that a minor permit
modification constitutes a "permit modification" within the
meaning of section 505(a), that would not resolve the question
whether section 505 would permit EPA the discretion under the
mandate of section 502(b)(6) to create a procedural distinction
between permit modifications that involve a title I modification
and those that do not. In this regard, section 502(b)(10)
expresses Congress's conclusion that changes in a source's
operations or practices that (i) do not constitute a title I
modification and (ii) do not increase emissions above existing
allowables will require no permit revision at all and only
minimal administrative review. From this, the EPA concluded that
the two types of changes identified in section 502(b)(10) are in
Congress's view the most important in determining the procedural
treatment to be afforded any change affecting permit terms or
conditions. And because, under existing regulations, a
modification within the meaning of title I will by definition
involve emissions increases that trigger the application of new
substantive requirements under title I, there would appear to be
strong basis for the EPA to require more elaborate procedures for
proposed revisions involving title I modifications. Even for
minor permit modifications, EPA concludes that it is appropriate
to retain the key elements of section 505 -- the 45 day EPA
review and veto opportunity and notice to affected States.
Section 505(b)(2) allows objections to be raised for the
first time before the Administrator if "it was impracticable to
raise such objections within such period or unless the grounds
for such objection arose after such period." If the State has
provided no opportunity for public comment, it would obviously be
impracticable to raise objections to the proposed permit
modification during the most recent public comment period.
Similarly, the petitioner could plainly substantiate a claim that
the grounds for objection arose "after such period." Thus, under
the section 505(b)(2) parenthetical the public can petition the
Administrator regarding minor permit modifications in cases where
the permitting authority has not provided for a prior public
comment period on the proposed modification. Based on the
language of the statute, therefore, it appears that in section
505 Congress, has not "directly spoken to the precise question at
issue" so as to foreclose EPA's exercise of discretion. Chevron,
467 U.S. at 842.
(ii) Reasonableness of minor permit modification procedures
under Chevron. The EPA believes the procedures adopted in this
rule for minor permit modifications strike a careful balance
between the competing statutory goals, set forth in section
502(b)(6), that permit procedures be "streamlined,"
"expeditious," "adequate," and "reasonable." Further, the
approach taken in the final rule is a reasonable and fair
accommodation of the comments received both criticizing and
supporting the revision procedures in the proposed rule.
EPA received many comments from industry documenting the
need to make operational changes expeditiously in response to
market demands. For example, comment IV-D-160 stated that the
automobile industry must be able to respond quickly to market
and technological changes in order to maintain its market share
relative to foreign competitors, and that provisions for
expeditious permit revisions for minor emissions increases were
crucial to this effort.
Certain industries, including the pharmaceutical industry,
pointed out that, owing to the multi-purpose nature of both the
equipment and processes used, and the wide variety of products
produced, the need for adequate operational flexibility and the
ability to revise permits expeditiously is of central concern in
the design of the operating permits rule. See, e.g., IV-D-132.
In fact, some industry commenters asserted that the proposal's
minor permit amendment provisions did not go far enough in
providing for operational flexibility. See, e.g., IV-D-241
(seven-day waiting period for minor permit amendments could
economically weaken many companies).
EPA believes that the procedures for minor permit
modifications in the final rule accommodate these industry
concerns to the extent possible while maintaining a careful
balancing of the above-mentioned statutory goals and preserving
the integrity of the permit process. The minor permit
modification procedures achieve the goals of being "streamlined"
and "expeditious" because they allow States to adopt procedures
under which sources may make permit revisions related to
operational needs without delay and without the need to submit
those revisions to public notice and comment. For changes
resulting in increases in emissions below de minimis threshold
levels set by the permitting authority and approved by EPA, the
permitting authority may group these revisions on a quarterly
basis for purposes of EPA and affected State review. For changes
resulting in emissions increases above these threshold levels
(but below title I modification levels) the source may implement
the change immediately after filing a complete application,
unless the permitting authority establishes a waiting period. In
either case, permitting authority, EPA and affected State review
may occur after the change has been made.
In contrast to the industry approval of the proposal's minor
permit amendment procedures, State and environmental commenters
were generally critical of these provisions. A group of
Northeastern States (IV-D-192) asserted that seven days was an
insufficient period to review a proposed permit revision. An
environmental group (IV-D-158) stated that the minor permit
amendment provisions would allow sources to increase emissions
without legal limit. The general theme of these and similar
comments was that, by allowing certain permit revisions to take
place without the same public notice and comment procedures
required in permit issuance and renewal, the regulations would
undermine the effectiveness of the permit program in implementing
and enforcing the requirements of the Act.
EPA disagrees with these commenters. Although the final
rule allows approval of State programs that omit public notice
and comment for certain permit revisions, the various protections
associated with minor permit modification procedures assure that
these procedures will be "adequate" and "reasonable" and will not
undermine the permitting authority's ability to implement and
enforce the Act. To begin with, the rule places several
significant restrictions on the types of revisions eligible for
treatment as minor permit modifications. Among these is the
restriction that these procedures not be used for significant
changes to existing monitoring, reporting, or recordkeeping
requirements. Section 70.7(e)(2)(i)(A)(3). Thus, while
operational changes, such as physical plant changes or changes in
utilization, that may be necessary to respond to changing market
conditions, may be the subject of permit revisions without prior
governmental authorization or public notice and comment,
significant changes related to a source's compliance regime must
undergo full review before being implemented.
Several other protections ensure the adequacy and
reasonableness of the minor permit modification procedures. A
minor permit modification will not be deemed to have issued for
purposes of Federal law until EPA has had the opportunity to
review the proposed modification for compliance with the Act.
Likewise, affected States will have an opportunity to review and
comment on proposed revisions and to make their views known to
EPA prior to issuance. These governmental review requirements
will help ensure that any modification of a permit accomplished
through minor permit modification procedures will comply with the
Act and the requirements of this part.
The rule provides the source with an additional incentive to
comply. The rule provides that the permitting authority may
enforce the original permit terms if the source should fail to
comply with its proposed terms during the pendency of the minor
permit modification.
Even after a minor permit modification has been properly
"issued" following review by the permitting authority and EPA,
the source remains responsible for compliance with the Act.
Revisions effected through minor permit modification procedures
do not receive the protection of the permit shield, so the
permitting authority, EPA, and private citizens may enforce the
applicable requirements and the requirements of part 70
regardless of how the permit has been revised.
Finally, the concern regarding the potential to increase
emissions without legal limit under the minor permit modification
procedures is misplaced, and is based on a misunderstanding of
title V and the substantive requirements of the Act.
As discussed above, title V is primarily procedural, and is
not generally intended to create any new substantive
requirements. Nor are title V programs required to establish any
sort of "cap" on emissions unless derived from a substantive
requirement in another title of the Act. The title V permit is
intended to record in a single document the substantive
requirements derived from elsewhere in the Act. Therefore, in
most cases the only emissions limits contained in the permit will
be emissions limits that are imposed to comply with the
substantive requirements of the Act (including SIP requirements).
The permit itself will not impose any sort of independent "cap"
on emissions except where requested by the source. This might
occur, for example, in order to limit the source's potential to
emit through a federally-enforceable mechanism for the purpose of
lawfully avoiding substantive requirements of the other titles
that would apply in the absence of a cap.
Like the minor permit amendment provisions of the proposed
rule, the minor permit modification provisions in the final rule
explicitly prohibit changes that would (1) constitute title I
modifications, or (2) violate any applicable requirement of the
Act. Applicable requirements include MACT standards, NESHAP,
RACT limits contained in a SIP, NSPS, BACT, lowest achievable
emission rate standards, and work practice standards established
pursuant to a SIP, and other Federal requirements (including SIP
limits). The minor permit modification procedure cannot be used
to exceed any of these limits. It should be pointed out in this
regard that the Act implicitly prohibits "stacking" of emissions
increases under the minor permit modification procedures. The
EPA has long held that stacking is unlawful where it is done for
the purpose of improperly evading full permit modification
procedures under title I. See, e.g., 54 Fed. Reg. 27274, 27281
(June 29, 1989) (prohibition against use of "sham" minor source
permits for purpose of evading major NSR requirements under title
I).
It is also worth noting that title I establishes additional
substantive limits that would prevent unlimited vertical stacking
in specific instances. For example, section 182(c)(6)
establishes de minimis levels for ozone precursors in serious,
severe, and extreme nonattainment areas that limit increases for
purposes of title I modifications to 25 tons when aggregated with
all other net increases in emissions at the source over the five
years preceding the change. Thus, for these areas, there is a
cumulative limit of 25 tons that, if exceeded, would trigger a
title I modification and would prevent the source from using the
minor permit modification procedures for changes above these
limits. In other nonattainment areas and in attainment areas,
certain increases above prescribed "significance levels" would
also be aggregated with all other net increases in emissions at
the source within a five-year contemporaneous period. See, e.g.,
40 CFR sections 52.21(b)(2) and (3).
It bears emphasis that the minor permit modification
procedures set forth in the final rule set the minimum standard
for an approvable State permit program. States are free to
establish permit revision procedures more stringent than those
set forth in this rule. The EPA recognizes that most States have
already adopted some form of operating permits program and, based
on their own experience, have developed different approaches for
processing permit revisions. The EPA also recognizes that
different States have different environmental concerns. For
example, States that have serious nonattainment problems may wish
to adopt more stringent review procedures than those that do not.
The final rule allows State the flexibility to design permit
programs or to adapt their existing programs to meet their
individual circumstances, provided the minimum requirements of
part 70 are met.
(iii) De minimis justification for minor permit
modification procedures. The EPA starts from the assumption
that, in the context of regulatory statutes there is "virtually a
presumption in . . . favor [of de minimis exemptions]," Public
Citizen v. Young, 83l F.2d 1108, 1113 (D.C. Cir. l987), and they
will be inferred "save in the face of the most unambiguous
demonstration of congressional intent to foreclose them."
Alabama Power, 636 F.2d at 357. If such an exemption were
statutorily permissible and otherwise valid, it would allow
omission of public notice and comment in genuinely de minimis
cases, even assuming that under step one of Chevron the Act
unambiguously required public notice and comment for all permit
actions.
In Public Citizen, the U.S. Court of Appeals for the D.C.
Circuit reviewed the law in this area in the context of the
"Delaney Clause" of the Color Additive Amendments of l960, a
provision of the Federal Food, Drug and Cosmetic Act (FFDCA) that
bars the Food and Drug Administration (FDA) from listing any
color additive "found . . . to induce cancer in man or animal,"
21 U.S.C. section 376(b)(5)(B); such FDA listing is a
prerequisite for an additive's legal use. The court found that
the language, structure, and legislative history of the Color
Additive Amendments clearly foreclosed any de minimis exemption
authority, because, although the cancer risks of the products did
indeed appear "trivial," 831 F.2d at 1111, the statute was
sufficiently rigid to preclude application of the de minimis
doctrine. In reaching this conclusion, the court found that "the
[statutory] language itself is rigid; the context -- an
alternative design admitting administrative discretion for all
risks other than carcinogens -- tends to confirm that rigidity .
. . . [T]he legislative history . . . only strengthens the
inference." 831 F.2d at 1113.
The language, structure, and legislative history of title V
do not indicate that "Congress has been extraordinarily rigid,"
Alabama Power, 636 F.2d at 360-61, precluding the virtual[ ] . .
. presumption," Public Citizen, 831 F.2d at 1113, that EPA may
lawfully seek to frame de minimis exemptions from permit review
requirements. Accordingly, such exemption authority is available
to support a minor amendment procedure.
With regard to the language and structure of title V, a
number of provisions are relevant. A modification procedure
insulates a source that complies with its requirements from
liability under section 502(a), which provides that "it shall be
unlawful for any person to violate any requirement of a permit
issued under this subchapter," 42 U.S.C. section 7661a(a). This
prohibition is similar to that set out in section 165(a) of the
Act, the provision at issue in Alabama Power ("No major emitting
facility . . . may be constructed unless a permit has been
issued"). Under title V, Congress nowhere prescribed an
inflexible adherence to permit allowables. To the contrary,
where the statutory design both contains a prohibition on
exceedance of permit limits and authorizes modifications of such
limits through procedures that must be both "streamlined" and
"expeditious," id. section 7661a(b)(6), title V allows an
exemption for minor exceedances on the basis of a de minimis
rationale. Likewise, the legislative history of the relevant
statutory provisions and title V as a whole is consistent with
this approach.
Given that the statute does not explicitly preclude the
crafting of a de minimis exemption for minor exceedances of
permit allowables, the question remains whether the de minimis
exemption here satisfies the principle articulated in Alabama
Power for justification of a de minimis exemption that the
"burdens of regulation yield a gain of trivial or no value." 636
F.2d at 361. The minor permit modification provisions of this
rule comport with this criterion for establishment of a de
minimis exemption because public review of changes effected
through the minor modification track would yield a trivial gain
in furthering the ultimate goal of the title V permit, namely, to
assure compliance with the requirements of the Act. For the
reasons stated below, EPA believes this application of the de
minimis concept follows directly from the EPA's prior actions to
follow the directives of the Alabama Power decision.
Central to this conclusion is the rule's limitation that no
revision may be processed as a minor modification if it would
constitute a title I modification. By regulation, EPA has
limited modifications under parts C (prevention of significant
deteriorations) and D (nonattainment) of title I to changes that
would not increase emissions beyond certain "significance
levels." These significance levels, established in response to
the Alabama Power decision following careful analysis by EPA of
the legal and air quality considerations, have never been
challenged and remain in effect. See 40 C.F.R. sections
51.165(a)(1)(x). See also 45 Fed. Reg. 52676 (August 7, 1980).
In fact, Congress endorsed this de minimis approach in the 1990
Act Amendments. It did so in part by setting specific statutory
de minimis levels for major modifications in certain areas, and
by leaving in EPA's other de minimis exceptions undisturbed.
See, e.g., sections 182(d)(6) and 182(e)(2). The minor permit
modification track is therefore limited to increases in emissions
levels long recognized under the Act as insignificant.
Compared to this established exemption from NSR, the minor
permit modification procedure in fact presents a stronger case
for a de minimis exemption from Act requirements for the
following reasons. First, as noted above, the de minimis
exemption for minor permit modifications is taken from a
statutory context far more flexible than was the case for the NSR
de minimis exemption. The statutory provisions in question in
Alabama Power required that a permit be obtained for any
"modification" to a major stationary source. The directive of
title V that permit procedures be "streamlined" and "expeditious"
indicates the intent to allow far more flexibility in the
establishment of revision procedures.
Secondly, the de minimis exemption established in response
to Alabama Power allowed a source to avoid altogether the
considerable review requirements associated with NSR under parts
C and D of title I. In this case, the exemption is merely from
the public notice and comment component of a regulatory review
scheme that remains largely intact. Thus, while increases in
emissions up to title I significance levels would normally escape
governmental and public review entirely under the NSR procedures
of parts C and D, the same changes to a title V permit will be
reviewed by the State and EPA for compliance with all applicable
requirements of the Act.
Moreover, the NSR exemption allows a source to avoid
significant substantive requirements, such as the requirement to
install technological controls or to obtain emissions offsets
from other sources in the area prior to construction. By
contrast, the minor permit modification procedure is an exemption
from certain procedural requirements only. Any change effected
through minor permit modifications must comply with all
substantive Act requirements.
EPA received a comment addressing the analysis in the
Department of Justice opinion. Although this comment was
received very late in the process, it has been carefully
considered. In general, the analysis in the Department's opinion
speaks for itself. A few specific points merit response,
however.
First, the commenter contends that providing an opportunity
for judicial review of minor permit amendments without providing
also for public notice and comment would require courts to
conduct trials de novo because there would be no administrative
record. However, as noted earlier in this preamble, there will
be a record for review, consisting at least of the permit
modification application, the proposed permit and statement of
basis, and the State's final action.
The commenter also asserted that, while the de minimis
concept may be appropriate to limit the scope of an agency's
authority, it may not find application where an agency seeks to
limit the extent of public review of matters already within its
jurisdiction. The EPA believes that, to the contrary, the latter
case finds more support in judicial precedent establishing
authority for de minimis exemptions. The primary test of the
legal sufficiency of an administratively-created de minimis
exemption is that the burden of regulation must yield a gain of
"trivial or no value." Alabama Power, 636 F.2d at 360-361. If
a gain of trivial or no value would result from the inclusion of
certain activities within the regulatory jurisdiction of an
agency, there must similarly be at best a trivial gain when those
same activities, once brought within the agency's authority, are
merely exempted from requirement to undergo public review. This
is precisely the case here, because the same de minimis emissions
levels established for purposes of exemption from the NSR
requirements will serve to limit the changes eligible for
processing through minor permit modifications. The present rule
therefore presents an even stronger case than the new source
review thresholds for application of the de minimis principles
established in the Alabama Power decision, as it has been
implemented by EPA for over a decade.
This commenter also asserted that allowing permit terms to
be modified without notice to the general public would frustrate
the requirement that permits be enforceable. But contrary to the
commenter's claim, nothing in minor modification procedures
insulates a source from EPA or citizen enforcement of the
modified permit terms or the requirements of the Act. First, any
permit that is modified using minor modification procedures will
be a matter of public record on file with the permitting
authority pursuant to section 503(e) of the Act. Citizens may
obtain a copy of any permit, as amended, from the permitting
authority or the relevant EPA Region for the purpose of enforcing
its terms. Second, today's rule specifically denies the permit
shield to changes incorporated into a permit using minor
modification procedures. If a citizen believes that a minor
permit modification violates the underlying requirements of the
Act, the citizen may always seek to enforce the Act's
requirements if the source is relying on its modified permit to
demonstrate compliance with those requirements of the Act.
The commenter also alleges that EPA provided the public with
inadequate notice of its intention to rely on a de minimis
rationale as a ground for denying public participation on minor
permit modifications. On the contrary, the Agency's notice of
proposed rulemaking so clearly pointed toward a de minimis
rationale that the adoption of such a rationale in these final
rule can readily be seen as a logical outgrowth of the Agency's
proposal. See, Small Refiner Lead Phase Down Task Force v. EPA,
705 F. 2d 506,547,549 ( D.C. Cir., 1983); City of Stoughton v.
EPA, 858 F. 2d 747,753 ( D.C., Cir., 1988). The provision in
question called "minor permit amendments" (section 70.7(f)) in
the proposal concerned what emissions increases could be
considered sufficiently small that they could be instituted
without public participation, an inquiry which covers whether
increases are so small as to be de minimis. Proposal section
70.7(f) applied if the proposed revision "does not constitute a
modification under any provision of title I of the Act". In turn,
under the landmark decision of Alabama Power v. Costle, 636 F,.
2d 323( D.C.Cir., 1979), de minimis emissions increase may be
exempted from consideration as "modifications". Hence, the use of
the term modification put the public on notice that de minimis
was an issue in the rule making. Indeed, the Agency received
numerous comments (e.g., IV-D-208, IV-D-312, IV-D-323) that minor
permit amendments were justified as de minimis under Alabama
Power. During the comment period, several State groups (IV-D-
121, IV-D-232, IV-D-270) and one environmental group (N-D-81)
addressed the issue of appropriate de minimis thresholds.
Finally, the commenter's own comment addressed the de minimis
issue. In sum, the EPA proposal provided sufficient notice that
de minimis was an approach that might be adopted as a final
outcome in the rulemaking.
(c) Legal basis for section 502(a) exemption. EPA's model
regulations outlining an option for minor permit modifications
preserve the elements of permitting authority, affected States,
and EPA review. They allow a source to make the proposed change
after notice, but before the review procedures have been
completed. Thus the procedures in effect temporarily exempt the
source from the technical requirement of section 502(a) that a
source operate in compliance with its permit. The basis for such
limited exemption resides in the doctrine of Alabama Power Co. v.
Costle, 636 F.2d 323, 357-361 (D.C. Cir. 1979), where the D.C.
Circuit set forth "the principles pertinent to an agency's
authority to adopt general exemptions to statutory requirements."
In Alabama Power, the Court observed that "Unless Congress
has been extraordinarily rigid, there is likely a basis or an
implication of de minimis authority to provide exemption when the
burdens of regulation yield a gain of trivial or no value." Id.
at 360-36l. Far from being "extraordinarily rigid" with respect
to procedures governing permit actions, Congress' intent in
title V, as evidenced in section 502(b)(6) and elsewhere, was to
establish a flexible standard: procedures for "expeditious
review of permit actions" that are "adequate, streamlined, and
reasonable". In title V Congress repeatedly demonstrated
interest in balancing the need for "expeditious action" by the
permitting authority with the need for adequate governmental and
public oversight of the permitting process [see, e.g.
502(b)(7),(8)].
The minor permit modification procedures outlined in EPA's
regulations allow States to create a highly limited de minimis
exemption that satisfies the requirements of Alabama Power. The
Administrator has determined that States could find that
requiring review by the permitting authority, EPA, and affected
States to take place before a source can make a change qualifying
for treatment as a minor permit modification may impose great
burdens on industry and State regulatory systems, while any
benefit that would accrue would be trivial. The regulations
require ample safeguards to ensure that such a temporary
exemption (to the formal requirement of compliance with all
permit terms while a modification application is pending) is
truly de minimis in scope and impact.
First, a State could not allow a change to qualify for minor
permit modification procedures unless it were less than a title I
modification and met certain additional eligibility criteria.
These stringent criteria, described in paragraph (c) below, will
assure that this procedure is not used for significant changes.
Second, the State could not allow a change to be made until after
the source filed a complete application for a permit
modification.
Third, the State could allow the source to make the change
it proposed, but the source must bear the full risk of the
consequences if its proposed modification is subsequently
disapproved. Moreover, no "permit shield" attaches to any minor
permit modification. The only exemption that the source could
receive, and it would be a temporary one lasting only until its
permit application is processed, is from the technical
requirement that the source comply with the existing permit terms
that are the subject of the proposed modification. The source
would continue to be subject to all applicable requirements, and
to those permit terms not addressed by its proposed modification.
If a source chooses to make a change before final action on
its proposed modification, and that change is subsequently
disapproved, enforcement proceedings may be brought for any
violation of applicable requirements resulting from the change.
Furthermore, if the source chooses to implement a change prior to
issuance of a revision and the permitting authority does not take
final action on the application in a timely fashion, the public
may have the opportunity under State law to seek a State court
order requiring the permitting authority to act finally on the
application, and can seek enforcement of the applicable
requirements of the Act if it believes the revision violates the
Act.
Given these consequences, no source would lightly undertake
to make a change while awaiting a permit modification. Emissions
resulting from changes that are subsequently disapproved would,
moreover, be small and limited in time. Since the permit must
issue or be denied in 90 days, the potential for significant
illegal emissions increases to occur is negligible. Thus the
environmental consequences of this de minimis exemption are
trivial. Furthermore, a State might determine that the exemption
is desirable because it would free the regulatory system to
devote resources to processing significant modifications, without
holding up smaller changes with low environmental risk. It would
also preserve for the permit modification process the protections
of governmental oversight, thereby ensuring the integrity of the
permit system without unnecessarily burdening regulatory
authorities or regulated industry.
The Administrator concludes that such a de minimis exemption
is well within his discretion, and comports with the regulatory
objectives of title V. A permitting authority may reasonably
determine that regulations based on this de minimis exemption
provide "adequate, streamlined, and reasonable procedures" for
permit modifications.
With these tracks, EPA believes it has provided States with
an example of adequate, streamlined, and reasonable procedures
for handling permit revisions. States may meet their obligation
to adopt such procedures using EPA's model or provisions that are
substantially equivalent. A State's substantially equivalent
procedures need not be identical to EPA's model, nor are the
procedures set forth in section 70.7(e) meant to preempt the
States from requiring additional process before allowing a change
to take effect or before granting a permit revision.
(d) Description of final rule. Following is a description
of how the model set forth in section 70.7(e) would work. The
model attempts to match the significance and complexity of the
proposed revision with the nature and degree of the process
required. Changes that qualify for minor permit modification
procedures could be made immediately after notifying the
permitting authority. Significant changes could not be made
until the permitting authority issued the permit modification
after review by affected States, the public, and the
Administrator.
Criteria for minor permit modification procedures: State
programs must include criteria for determining which types of
modifications undergo which review process. Today's rule sets
forth criteria describing the types of modifications that can be
processed on an expedited basis, although States can adopt more
restrictive criteria. Under these criteria, State programs cannot
use minor permit modification procedures except for modifications
that:
(1) do not violate any applicable requirement;
(2) do not involve significant changes to existing
monitoring, reporting, or recordkeeping requirements in the
permit (as discussed below);
(3) do not require or change a case-by-case determination of
an emission limitation or other standard (such as a case-by-case
MACT determination under section 112(g) of the Act, or
equivalency determinations for RACT limits under title I), or a
source-specific determination of ambient impacts, or a visibility
or increment analysis;
(4) do not seek to establish or change a permit term or
condition for which there is no corresponding underlying
applicable requirement and that the source has assumed to avoid
an applicable requirement to which it would otherwise be subject
(as, for instance, a change to a previously established voluntary
cap to escape new source review);
(5) are not modifications under any provision of title I of
the Act; and
(6) are not required by the State program to be processed as
a significant modification.
Only insignificant changes in existing monitoring,
reporting, and recordkeeping requirements may go through the
minor permit modification procedures of section 70.7(e)(2) and
(3). An example of an insignificant change in monitoring would
be a switch from one validated reference test method for that
pollutant and source category to another, where the permit does
not already provide for an alternative test method.
The final rule also allows States to process "economic
incentives, emissions trading, marketable permits, or other
similar approaches" under the minor permit modification process,
if the underlying SIP or EPA rule provides explicitly for use of
minor permit modification procedures when implementing these
types of changes. EPA is providing this form of permit
modification for the same reason that it is expanding the use of
the operational flexibility provisions for emissions trading: to
encourage the use of market-based strategies, and to allow
flexibility for processing changes under these programs,
consistent with the requirements of title V. The term "other
similar approaches" includes other programs that may achieve a
similar result as an economic incentive program, a marketable
permits program, or an emission trading program, but that may use
a different mechanism or approach. This term is meant to allow
States to use the minor permit modification process for other
programs that may be developed in the future, provided that the
underlying requirement explicitly allows for this type of
processing. As with similar provisions elsewhere in this rule,
future SIP's and EPA rules would have to contain compliance
requirements and procedures that would assure that any or all
market-based programs are quantifiable, accountable, and
enforceable, and based on replicable procedures for determining
the emission reductions expected from the program.
Minor permit modification procedures for individual permit
modifications. If the source requested the minor permit
modification process, the source could make the proposed change
while its application was pending. The types of changes that can
be made using minor permit modification procedures vary. Thus,
it does not make sense to insist that States follow identical
procedures in all circumstances, provided that the States comply
with the minimum time period specified in these rules. Review by
the permitting authority, affected States, and the Administrator
could occur concurrently. The permitting authority could then
issue (or deny) the permit modification.
A source may request minor permit modification processing of
a permit modification by filing a complete application
demonstrating that it qualifies for such treatment. The
application must also include the source's suggested draft
permit. The source may make the proposed change after filing a
complete application.
During the pendency of an application for a minor permit
modification, a source would receive a qualified exemption from
the requirement that it comply with its existing permit terms,
but the exemption would be in effect only while the source
operates in compliance with its proposed permit terms and
conditions. If a source uses minor permit modification
procedures to make the change, during the pendency of its
application the source need not comply with the existing permit
terms and conditions it seeks to modify, but must comply with
both the applicable requirements governing the change and the
proposed permit terms and conditions. Thus, if a source uses
minor permit modification procedures to make such a change, an
enforcement action always may be brought to enforce the
underlying applicable requirements with respect to the change.
Furthermore, if a source violates the proposed permit terms and
conditions, it will lose its exemption from complying with its
existing permit terms and conditions, and an action enforcing the
existing permit terms and conditions may be brought.
The permit shield otherwise allowed under section 70.6(f)
cannot be granted to permit terms resulting from minor permit
modifications. Requiring the source to be bound by the
underlying applicable requirements irrespective of a minor permit
modification helps ensure that providing additional process for
minor permit modifications would provide only trivial benefits
and provides a limit on the emissions increases available which
could occur "stacking."
Within 5 working days of receipt of a complete permit
application, the permitting authority must fulfill its
obligations under section 70.8(a)(1) and (b)(1) to notify
affected States of the requested permit modification and transmit
the proposed permit and other necessary documents to the
Administrator. For purposes of EPA review and petitions to EPA,
the draft permit would be the same as the proposed permit. The
permitting authority would have to respond promptly to affected
States' recommendations. If EPA objected to a permit
modification, then the procedures in section 70.8 of this part
would apply.
The final rule requires 45 days for EPA review of and
opportunity to veto permit modifications, including those that
change the emissions allowable under the permit. The rule also
requires that sources comply with substantive conditions and
limitations contained in permits that have been issued in
accordance with the Act, including those issued as modified
permits. Thus permit modifications are subject to the procedures
required by section 70.8 for permit issuance. These include
section 70.8's requirement that an affected State receive notice
and an opportunity to comment on permit modifications.
The permitting authority may not issue a final permit
modification until EPA's review period has elapsed without
objection or EPA has sent written notice to the permitting
authority that it will not object to the modification. However,
the permitting authority may approve the modification prior to
the time it finally issues the modification. The permitting
authority must act within 90 days of receipt of an application
for modification, or l5 days after the end of the Administrator's
45-day review period, whichever time is later. This action may
include a determination that minor permit modification procedures
are inappropriate and that significant modification procedures
must be followed (which would terminate the source's ability to
operate out of compliance with its approved permit terms and
conditions).
In developing State programs, States may also want to
provide the permitting authority with the option of issuing a
revised proposed permit that would restart EPA's 45-day review
period. This would allow the State to make minor changes to the
proposed permit without requiring the State to deny an
application due to minor errors in the proposed permit, thereby
forcing the source to reapply for a permit modification. EPA
believes that a source should be allowed to make a change before
a modified permit is issued by the permitting authority only if
the source bears the risk of making a change that the permitting
authority later finds should not have been made.
Group processing procedures. Within the class of changes
that can be processed as minor permit modifications, EPA believes
that some of these changes are so insignificant that the
administrative burdens of individually processing large numbers
of such proposed modifications may not be justified. Therefore,
the permitting authority may process groups of such modifications
together. The group processing procedures basically track the
minor permit modification procedures described above, except that
the permitting authority could process all eligible modifications
on a quarterly basis, or as soon as the aggregate of the source's
applications reached the threshold level, discussed below, set in
the State program.
Modifications eligible for treatment as minor permit
modifications could be processed in a group if they fell below a
threshold level approved as part of the State permit program. A
State may establish its own threshold levels. However, EPA's
regulations suggest the following threshold levels, based on
comments from State and local air pollution control agencies with
experience implementing permitting programs: 5 tons per year, 20
percent of the major source definition for the area, or l0
percent of the permitted allowable level, whichever is lowest.
Many States do not require permits for sources at or below these
levels. Moreover, changes below these suggested levels are not
likely to trigger new Federal applicable requirements.
The State may establish alternative thresholds if it can
justify them based on criteria drawn from the Alabama Power
decision. The regulations provide the States with guidance for
setting appropriate levels, without locking them into a rigid
formula. A State's experience under an established program is a
good basis for demonstrating that alternate de minimis levels
will meet the program's goals and legal obligations.
States may also propose alternate de minimis levels in
response to new regulations which might create unanticipated
results under the formula for de minimis emission levels
described above. For example, section ll2(a)(l) allows EPA to
establish "lesser quantity" thresholds for certain toxic air
pollutants. A fixed percentage of the major source size which
yields an appropriate de minimis level for a l00-ton per year
major sources may not be reasonable when applied to major sources
of well less than l0 tons per year. EPA will review such
alternate limits according to the same criteria drawn from the
Alabama Power decision.
The group processing procedures differ in only a few
respects from the general procedures for minor permit
modifications. Most importantly, the timing of review by the
permitting authority, EPA, and affected States is different from
that under general procedures for minor permit modifications.
Instead of processing applications as soon as the applications
are submitted by the source, the permitting authority can collect
applications and process them as a group once a quarter.
Modifications eligible for group processing would need to be
processed more frequently only when the pending applications, in
the aggregate, reach the threshold level set by the State.
Second, the source would have to notify EPA that it is seeking a
modification. Such notice is required because the EPA may not
receive notice of the change from the permitting authority for
three months.
The source would also be required to submit all forms
necessary for the permitting authority to notify EPA and affected
States. For purposes of EPA review and petitions to EPA, the
draft permit would be the same as the proposed permit. The
permitting authority would be required to fulfill its obligation
under section 70.8 (a)(1) and (b)(1) to notify affected States
and transmit information to the Administrator promptly after
receipt of the complete application for minor permit
modification.
Criteria for significant modifications. Significant
modifications are those modifications which do not qualify for
treatment as minor permit modifications or administrative
amendments. Significant changes to existing monitoring permit
terms or conditions, or changes that would relax reporting or
recordkeeping requirements would be significant modifications,
since these types of changes are likely to affect how the
permitting authority determines whether the source is in
compliance with emission limitations and other permit terms and
conditions. An example of such a change would be a switch from
direct measurement of emissions to fuel sampling and analysis,
such as switching from emissions monitoring of SO2 to sampling
and analyzing coal sulfur content. The EPA believes it would be
inappropriate for sources to be able to change the method of
measuring compliance with its requirements using the minor permit
modification procedures. Although EPA recognizes that there are
legitimate economic reasons for making some changes quickly,
there should be no such urgency for changing existing significant
monitoring, reporting, or recordkeeping requirements. Nothing in
section 70.7(e)(4)(i) regarding compliance provisions shall be
interpreted to prevent sources from making off-permit changes
pursuant to section 70.4(b)(14) and (15), or using the
operational flexibility provision in section 70.4(b)(12)(ii).
When a source takes advantage of these provisions, it may alter
its activities to such a degree that its original compliance
terms are no longer relevant with respect to the change. A
source which makes off-permit changes must comply with any
compliance provisions imposed by the applicable requirements that
apply to the off-permit change. Similarly, a source that uses
the operational flexibility provision of section 70.4(b)(12)(ii)
must comply with all compliance provisions imposed by the SIP
provision authorizing the operational flexibility. If the source
later decides to operate as originally permitted, it must comply
with the compliance provisions in its original permit.
Significant procedures. The EPA has not set forth a
specific model for processing significant permit modifications.
It is anticipated that the procedures will be very similar to
those for processing initial permits or permit renewals.
However, most significant modifications should be less complex
than initial permits or permit renewals, and the process need
only focus on the changes to the permit rather than repeat any
more comprehensive permit analysis of the source. Therefore, EPA
has required that each State program provide that the majority of
significant modification applications are finally issued or
denied within 9 months after they are received.
3. Deadline for Action on Applications
Under the Act, the permitting authority is required to act
on permit applications, including permit modifications and
renewals, within 18 months from receipt of a complete permit
application, except for permits for affected sources (acid rain).
The proposal did not suggest that shorter deadlines might be
appropriate for permit renewals or modifications.
Industry commenters were concerned that 18 months for
renewals and modifications is too long and recommended reducing
the review period to 4 to 6 months.
The EPA responds that, although section 503(c) of the Act
clearly requires an 18 month deadline for action on applications
(except during the phase-in transition period), EPA agrees that
many permit renewals and modifications could be reviewed in far
less time, provided that the conditions and terms of the permit
do not lapse.
Thus, the Administrator, consistent with section 502(b)(6),
has included several provisions in the final regulations to
substantially expedite review of permit modifications [see
section 70.7(e)]. Furthermore, the Administrator agrees that
permit renewals are often so straightforward that they should be
reviewed in much less time than 18 months. In discussions with
State and local agencies, it is apparent that renewal times of
less than 6 months are common except in a few cases. Thus, while
EPA cannot require that all renewals occur in a shorter time
frame, it strongly encourages States to review 90 percent of
renewal applications in under 6 months.
4. Administrative Permit Amendments
An administrative permit amendment would include
administrative changes such as correction of typographical
errors, changes in address, change of ownership, etc. EPA also
proposed to treat as administrative permit amendments any changes
that have been processed under an approved State preconstruction
review program. The proposal stated that since these changes
have already received sufficient EPA review and appear to offer
adequate opportunity for public comment and a hearing, EPA
believed it would be unnecessary for them to undergo the full
permit revision procedure described in section 502(b)(6) simply
to incorporate the results of the NSR program.
A number of State agencies recommended that permit
requirements issued under State NSR programs should be
incorporated into title V permits via the administrative permit
amendment process. One group of State agencies suggested that
EPA should expand the list of items to be processed as
administrative permit amendments to include anything that is
obviously approvable.
The EPA has learned, however, that most State
preconstruction review programs do not meet title V requirements
for review by EPA and affected States. EPA believes that such
procedures are required for permit revisions. Thus, EPA will
allow States to use the administrative permit amendment
procedures to incorporate the results of an EPA-approved State
NSR program, if the NSR program is enhanced as necessary to meet
requirements substantially equivalent to the applicable part 70
requirements. Changes that meet the requirements for minor
permit modifications may be made under procedures substantially
equivalent to those in section 70.7(e)(2) or (3). Changes that
do not meet the requirements for minor permit modifications must
be made under procedures substantially equivalent to those for
permit issuance or significant permit modifications.
Accordingly, the permit shield may only attach to the latter
category of administrative amendments and can not attach until
final action has been taken granting the request for the
administrative amendment. If a State does not make the necessary
improvements to its NSR program, the permit modification process
must be used to revise the part 70 permit, as needed.
The primary intent of these "enhancements" of the NSR
process is to allow the permitting authority to consolidate NSR
and title V permit revision procedures. As stated in the May 10,
1991 proposal, it is not to second-guess the results of any State
NSR determination. For example, if a State does provide for
EPA's 45-day review in its NSR program, EPA would only be
reviewing whether the State had conducted a BACT analysis, if
applicable, and whether that analysis is faithfully incorporated
in the title V permit. The EPA will not use its review period to
object to or attempt to revise the State's BACT determination.
Correspondingly, EPA's failure to object to the substance of the
BACT determination will not limit any remedies EPA might
otherwise have under the Act to address a faulty BACT
determination.
The proposed rule allows changes that the permitting
authority determines to be similar to those in items (i)-(iv) in
section 70.7(d) to be permit revisions for purposes of
administrative permit amendments. The EPA has decided to
strengthen the proposal by requiring that this list of similar
changes be proposed by the permitting authority in its permit
program and approved by the EPA. The EPA believes this change is
necessary to allow adequate EPA review of these changes to ensure
that they are similar to the types of changes defined in items
(i)-(iv).
Section 70.7(d)(3)(i) requires the permitting authority to
take final action on a request for an administrative amendment to
a permit within 60 days of receipt of such request. This 60-day
period was intended as a convenience to the permitting authority,
not as a waiting period imposed on a source seeking to implement
changes qualifying for the administrative amendment track. To
clarify this meaning, new section 70.7(d)(3)(iii) provides that a
source may implement changes addressed in a request for an
administrative amendment immediately upon submittal of the
request. Except as discussed above, section 70.7(d)(4) has been
revised to clarify that the permit shield may not attach for
these changes.
5. Public Participation
Under section 502(b)(6) of the Act, State programs are to
have "adequate, streamlined and reasonable" procedures for
providing public notice, "including offering an opportunity for
public comment and a hearing," of "permit actions, including
applications, renewals, or revisions." The EPA proposed that the
opportunity for a public hearing can be implemented in an
informal manner (e.g. not a full trial-type hearing), such as
through open meetings for interested parties to express their
concerns. The proposal stated that States were to develop
procedures for notice and an opportunity for public comment and a
hearing "after considering the requirements of part 124 of 40
CFR."
State agencies commented that the EPA should be careful not
to make the public review process unduly burdensome.
Environmentalists commented that the EPA should require more
specific public comment and hearing procedures, since section
502(b)(6) requires EPA to promulgate minimum elements of a permit
program, including "adequate, streamlined and reasonable
procedures ... for public notice, including offering an
opportunity for public comment and a hearing."
Although EPA believes that part 124 may provide some useful
guidance to States in establishing procedures for public
participation, EPA decided that the reference to part 124 was too
vague and could have been read to incorporate elements in part
124 that EPA believes are not necessary for title V permits.
Therefore, EPA has deleted the reference in the rule to part 124
and has specifically listed the minimum elements of public
participation that must be included in a State program.
Section 70.7(h) makes clear that all permit proceedings,
except those for minor permit modifications, must provide
adequate procedures for public participation. For this purpose,
public participation includes: notice, an opportunity for public
comment, and a hearing where appropriate. Section 70.7(h) goes
on to specify the key elements required in such procedures.
Section 70.7(h)(1) addresses the manner of giving notice,
and those to whom it must be given. It provides that notice must
be given: by publication in a general circulation newspaper; to
all those who request to be included on a mailing list developed
by the permitting authority by other means if necessary to assure
adequate notice to the affected public.
Section 70.7(h)(2) describes the information that the notice
must include, and section 70.7(h)(3) requires notice to be
provided to affected states pursuant to section 70.8.
Sections 70.7(h)(4) and (5) contain requirements for the
timing of public comment and notice of any public hearing. For
initial permit issuance, permit renewals, and significant
modifications, the permitting authority must provide at least 30
days for public comment and at least 30 days advance notice of
any public hearing.
Finally, section 70.7(h)(6) requires the permitting
authority to keep a record of the commenters and also of the
issues raised during the public participation process so that the
Administrator may fulfill his obligation under section 505(b)(2)
of the Act to determine whether a citizen petition may be
granted, and to make them available to the public.
Public objections to a draft permit, permit revision, or
permit renewal must be germane to the applicable requirements
implicated by the permit action in question. For example,
objections addressed to portions of an existing permit that would
not in any way be affected by a proposed permit revision would
not be germane. Public comments will only be germane if they
address whether the draft permit is consistent with applicable
requirements or requirements of part 70.
H. Section 70.8 - Permit Review by EPA and Affected States
1. 90-day Response Period
Proposed section 70.8(c)(4) allowed 90 days for the
permitting authority to make a submittal in response to an EPA
objection to issuance of a proposed permit. If the permitting
authority submitted a revised permit that only partially met
EPA's objection, up to another 90-day period could be granted for
the permitting authority to submit a second permit revision
meeting EPA's objection. This provision for a second 90-day
period is removed from the final rules because the Administrator
has determined that section 505(c) of the Act only allows one 90-
day period. Although section 505(e) of the Act allows an
additional 90-day period, this section applies to reopening
permits for cause, not for objections to proposed permits.
Section 70.8(d) provides that where EPA, in response to a
public petition, has objected to a permit that has already been
issued, EPA will modify, terminate, or revoke such permit. The
final rule clarifies that EPA shall do so consistent with the
procedures for reopening a permit for cause set forth in sections
70.7(g)(4) or (5)(i) and (ii), "except in unusual circumstances."
Unusual circumstances would include those where there is a
substantial and imminent threat to the public health and safety
resulting from the deficiencies in the permit.
2. Permit Continuance
The proposal required permitting authorities to suspend a
permit if the Administrator objected to the permit as a result of
a public petition under section 70.8(d). Upon further review,
EPA now believes that this provision would not meet the
requirements section 505(b)(3) of the Act. The final rule states
that upon EPA objection as a result of a petition and after the
permit is issued, EPA shall modify, terminate, or revoke the
permit. The permitting authority can thereafter issue a revised
permit meeting EPA's objections. These provisions are as section
505(b)(3) of the Act stipulates and EPA has no discretion to do
otherwise.
3. Grounds for an EPA Objection
The proposal allowed EPA to object to a permit if the
permitting authority failed to submit necessary information,
forms or notices to EPA. The final regulation expands this
provision by allowing EPA to object to a permit if the public
notice and comment and affected State review requirements (under
section 502(b)(6) and 505(a)(2) of the Act), where applicable,
were not met. This is necessary to ensure that permitting
authorities meet their obligation under the Act to provide
adequate opportunity for public participation and affected State
review. The regulations also specify that the Administrator may
only object if a proposed permit is not in compliance with the
applicable requirements or the requirements of part 70.
I. Section 70.9 - Fee Determination and Certification
The requirement that State operating permit programs
establish an adequate permit fee schedule is a key provision of
title V. The statute provides that an approvable permit program
require sources subject to part 70 to pay an annual fee (or the
equivalent over some other period) sufficient to cover all
"reasonable (direct and indirect) costs" required to develop and
administer the permit program [502(b)(3)(A)]. The statute also
mandates that all fees required to be collected by a permitting
authority under title V must be used solely to support the permit
program [502(b)(3)(C)(iii)]. Following is a description of the
basis and purpose of the changes in section 70.9.
1. Permit Program Costs
The proposal required States to collect permit fees
sufficient to cover most, if not all, of a State's costs of its
air pollution control program for stationary sources. After
review of public comment and further evaluation of section
502(b)(3) and its legislative history, the Administrator
concludes that all air pollution control program costs related to
stationary sources need not be recouped through operating permit
fees. The rejection of the interpretation in the proposal is
based primarily on the fact that the Senate bill would have
required recovery of all stationary source air pollution control
program costs [S. Rep. No. 228, 101st Cong., 1st Sess. 351
(1989)], but the Senate bill was rejected by the Conference
Agreement in favor of the House bill. Although the Act requires
recovery of fewer costs than the Senate bill, it leaves the
Agency some discretion in deciding which costs must be recouped.
The proposal was accurate in its conclusion that the fee
provisions of title V mandate that the permit fees be collected
in sufficient amount to support several air pollution control
program activities that are relevant to title V sources and
implemented through the operating permit program. This is clear
from the list of such activities in section 502(b)(3)(A) of the
Act, which includes some activities that are not strictly part of
the permitting program, but for which costs related to stationary
sources must be recovered. The final rule focuses more upon
permit program activities, rather than air program activities
more generally, in determining the minimum mandated amount for
fee collections. Because the nature of permitting related
activities can vary greatly from State to State, the EPA intends
to evaluate each demonstration individually using the definition
of "permit program costs" in the final regulation.
Finally, it should be noted that title V does not prevent a
State from developing a fee schedule that will result in the
collection of revenues in excess of those required to support the
permit program. The Administrator will consider the use of such
funds in reviewing the fee schedules proposed by States.
2. Role of the $25/tpy Presumptive Fee Amount
The proposal highlighted two "tests" for determining fee
schedule adequacy: the "program support test" (the fee schedule
would result in the collection of adequate revenues to support
all of the specified air program functions) and the "cost-per-ton
test" (the $25/tpy presumptive fee minimum). An environmental
group objected to this approach, claiming that it might give the
incorrect impression that a State program meeting the "cost-per-
ton test" would be approvable regardless of whether this amount
adequately funded its program.
Although EPA has consistently viewed program support as the
true measure of a fee schedule's approvability, the Agency
acknowledges that the format of the proposal could have created
some uncertainty. For this reason, section 70.9(b) is
restructured to indicate that the program support test is the
basic measure of fee schedule approvability. Section
502(b)(3)(A) clearly requires that all State programs collect
enough in fees to cover their permit program costs.
Section 70.9(b) clarifies that there is a rebuttable
presumption that a State fee schedule is adequate if it collects
in the aggregate an amount equal to or greater than the
presumptive minimum program cost, which is $25/tpy of actual
emissions of regulated pollutants (for presumptive fee
calculation). Evidence may be presented to rebut this
presumption and trigger the need for a more detailed fee adequacy
demonstration. The EPA believes that the use of a presumptive
minimum amount as a rebuttable presumption that the State is
covering its permit program costs is the best way to give meaning
to section 502(b)(3)(B) of the Act. A requirement that all State
programs prove that their fee schedules recoup their permit
program costs without regard for the presumptive minimum amount
is an impermissible reading of the Act because it makes section
502(b)(3)(B) meaningless. The Administrator anticipates that
this presumption will be most useful during the initial round of
program approvals, until permitting programs develop and States
and EPA gain greater expertise in estimating program financial
needs and fee revenues.
3. "Regulated Pollutants"
The proposal set the presumptive minimum amount that a State
must collect to cover its permit program costs as $25/tpy of
regulated pollutants actually emitted by part 70 sources the
preceding year. The proposal was somewhat confusing as to what
pollutants would be considered "regulated pollutants" for this
purpose, in part because the proposal used the statutory term
"regulated pollutant" for purposes other than calculating the
presumptive minimum. To clarify the matter, "regulated air
pollutant" was added as a defined term for other than fee
purposes, and "regulated pollutant (for presumptive fee
calculation)" was redefined consistent with the Act's definition.
The proposal requested comment on when a pollutant listed in
section 112(b) becomes a regulated pollutant for fee purposes.
The following three alternatives were set forth: (1) at the time
of enactment of the 1990 Act Amendments, (2) when EPA first
promulgates a MACT standard for that pollutant, or (3) when a
MACT standard for that pollutant first becomes applicable to the
permitted source. The proposal adopted the second alternative.
The final rule adopts a slightly modified version of the
second alternative, i.e., a pollutant becomes a regulated
pollutant (for fee purposes) when EPA first promulgates a MACT
standard for that pollutant. In addition, if a pollutant is
regulated at a particular source, its emissions will be
considered for fee purposes even if a general standard has not
been issued. The EPA continues to rely on the rationale in the
preamble supporting the second alternative. This alternative is
the most reasonable interpretation of the Act and makes the most
sense from a policy perspective.
The EPA has also decided to exercise its discretion by
excluding from regulated pollutant (for presumptive fee
calculation) those substances that would be regulated pollutants
only because they are regulated under section 112(r) (the
accidental release program). Requiring these substances to be
included in calculating the presumptive minimum necessary to
cover a State's permit program costs would be administratively
difficult and would not significantly increase the presumptive
minimum. Because releases of these substances are not permitted
and occur accidentally, the amount of actual emissions from an
accidental release may not be known -- certainly it is unlikely
that it would be measured with monitoring equipment. The EPA
believes that there will be relatively few substances that are
regulated under section 112(r) and not regulated elsewhere under
the Act. Additionally, the amount of emissions of such
substances are likely to be small enough that they would be
insignificant for purposes of calculating the presumptive minimum
amount to cover permit program costs.
The proposal was also modified so as to allow States relying
on the $25/tpy presumptive minimum to exclude from the
calculation insignificant quantities of actual emissions not
required to be in a permit application pursuant to section
70.5(c). The EPA could not justify requiring States to include
such emissions in the presumptive minimum calculation given the
administrative burden of collecting the necessary information for
fees purposes, and the insignificant additional fees that a State
would be required to collect if these insignificant levels of
emissions were included. To the extent that actual emissions
must be included in the calculation of the $25/tpy presumptive
minimum, they need not be measured using the same methods as
might be required to determine whether a source is complying with
an underlying applicable requirement.
Section 502(b)(3) provides that States relying on the
$25/tpy presumptive minimum must base this computation upon each
"regulated pollutant (for presumptive fee calculation)" and
defines this for fee purposes only in terms of criteria
pollutants (except CO), pollutants regulated under section 111 or
112, and VOC. No exemption is created for such pollutants which
a particular source emits but for which the source is not in fact
subject to a specific regulatory requirement. On the other hand,
no fees are required from other "regulated air pollutants" as
defined more expansively in section 70.2 in making the $25/tpy
test.
4. Fees from Phase I Acid Rain Sources
The proposal interpreted section 408(c)(4) of the Act as
prohibiting EPA, but not the States, from collecting emissions-
related fees during 1995 through 1999 from affected sources under
section 404. Some industry commenters maintained that this
prohibition extends to both States and EPA. After reanalysis of
the statutory provision, EPA concludes that the stronger reading
is that during 1995 through 1999 section 408(c)(4) precludes EPA
and the States from using fees to support a title V program when
these fees are related to emissions from affected units under
section 404.
It is important to note, however, that States have
discretion in how to address utilities. Section 408(c)(4) does
not prevent a State from assessing such fees against utilities if
the State chooses. The EPA will not, however, consider such
emissions-based fees in determining whether the State fee
schedule meets the State's obligation to recover permit program
costs.
Because of the limitation on fee assessment on affected
units under section 404, States relying on the $25/tpy
presumptive minimum amount to recover permit program costs shall
not be required to include emissions on which they cannot charge
a title V emissions fee in their calculation of the presumptive
minimum program cost.
5. State Fee Schedules
The final part 70 regulations clarify that States have a
great deal of discretion in using the fee schedule to allocate
permit program costs among part 70 sources. Even if the State
relies on the $25/tpy presumptive minimum, the State fee schedule
does not need to assess fees at $25/tpy. The State is not
required to assess fees on any particular basis and can use
application fees, service-based fees, emissions fees based on
either actual or allowable emissions, other types of fees, or any
combination thereof.
It should be clarified that State fee programs can provide
for the assessment of fees on the basis of emissions of any
regulated air pollutant. The exclusion of three categories of
regulated air pollutants (carbon monoxide and certain pollutants
regulated under sections 112(r) and 602 of the Act) applies
solely to how the $25/tpy presumption with respect to aggregate
program revenue adequacy is to be calculated. States electing to
assess fees for emissions of any of the regulated air pollutants,
including those in the three categories referenced above, are
fully authorized to do so. All fee revenues from those programs
will be recognized for the purposes of determining program
adequacy.
J. Section 70.10 - Federal Oversight and Sanctions
1. Geographic Application of Sanctions
The proposal indicated, in accordance with section 502(d)
and (i), that sanctions are applicable if a permitting authority
fails to submit an approvable operating permit program or fails
to implement an approved program. The proposal did not specify
the geographical application of sanctions. State and local
agency commenters felt that in the event a partial program for a
local agency is granted full approval in a State, the local
agency should not be penalized if the State fails to meet its
permit program obligations for the remainder of the State. If
sanctions are to be applied, they should not be applied in the
local agency jurisdiction where a program is adequately being
implemented. Conversely, the local agency may be found to not be
administering or enforcing its program and be subject to
sanctions. The State may have an approved program for the
remainder of the area within the State and should not be
penalized for failure of the local agency to meet its
obligations.
The Administrator agrees with this concern and the
stipulation is added to 70.10 that sanctions are applicable only
to the geographic area covered under the program which has not
been submitted or is not being adequately administered or
enforced. Any other area of the State covered by an approved
program that is being adequately implemented will not be affected
by sanctions.
2. Discretionary Application of Sanctions
Proposed section 70.10(a)(2) stated that EPA will apply
sanctions within 18 months after the date required for program
submittal. Section 502(d)(2)(A) states that, where a State has
failed to submit a permit program by the required date, EPA has
discretion within the first 18 months of that date to apply
sanctions. Section 70.10(a)(2) has been corrected to more
accurately reflect the intent of the Act. Similarly, section
70.10(b)(3) has been amended to more accurately reflect the
intent of section 502(i)(1) that EPA has discretion whether to
apply sanctions within the first 18 months after making a finding
that a State is not adequately administering or enforcing a
program.
3. Withdrawal of Approval of Part 70 Program
Section 70.10(c) sets out criteria for withdrawal of part 70
program approval, such as failure of the permitting authority to
enforce the requirements of the part 70 program and the terms and
conditions of part 70 permits. The final regulations now add in
section 70.10(c)(1)(ii)(E) that failure to act in a timely way on
applications for permits, permit renewals, and permit revisions
is grounds for withdrawal of approval of the part 70 program.
This addition is simply a recognition of the importance and
benefits of the permitting program. If large numbers of permits
are allowed to lapse and sources continue to operate without a
permit because they have submitted a timely and complete
application, or permits are not updated in a timely way to
reflect the current status of the source, all the benefits of the
permitting program such as increased certainty for sources and
enhanced enforcement are lost. Therefore, EPA has added this as
a basis for withdrawal of part 70 program approval. The final
rule also clarifies that EPA may withdraw a program in whole or
in part.
4. EPA Issuance of Initial Permits
The proposal in section 70.10(b)(5) stated that the EPA may
issue or deny the permit where the State has failed to act in a
timely manner. Upon further review of the language and structure
of the Act, EPA has decided to eliminate this provision in the
final rule. Where initial permit issuance is concerned, section
502(e) is clear in stating that EPA shall suspend the issuance of
permits upon approval of a State program. Where the permitting
authority has failed to act in a timely manner on applications
for permit renewal, EPA may revoke and reissue the permit as
provided for in section 70.7.
K. Section 70.11 - Requirements for Enforcement Authority
This section ensures that the basic framework for effective
enforcement of title V permits will be in place in each State
with an approved part 70 program. Section 70.11 contains
specific requirements for enforcement authority consistent with
those contained in 40 CFR 123.27 for the NPDES program with
appropriate adjustments to conform to the Clean Air Act. No
significant changes to the proposed section 70.11 for defining
minimum requirements for State programs are contained in the
final rules. However, EPA specifically encourages additional
enforcement authority with respect to the two areas discussed
below.
The EPA encourages State and local permitting authorities to
have administrative enforcement authority similar to section
113(d) of the Act, although it is not required by section 70.11.
Having administrative enforcement authority in addition to
judicial enforcement authority has many advantages. First,
administrative cases generally have lower forum costs and are
effective for minor or straightforward violations. Reliance on
the judiciary for all enforcement actions may cause significant
delays in pursuing violations considering how overburdened State
and Federal judiciaries are. For both these reasons, more
violations may be pursued if the permitting authority has
administrative enforcement authority.
The EPA also recommends that State and local enforcement
authorities consider as criminal penalties not only fines, but
also incarceration. Such a penalty will be an inducement for
State law enforcement officials to undertake environmental
criminal cases that may be lacking if this type of crime can only
result in a fine, which can also be obtained through civil suit.
This will enable State enforcement authorities to pursue criminal
cases which may otherwise have to be prosecuted by Federal
enforcement authorities.
V. Administrative Requirements
A. Docket
The docket for this regulatory action is A-90-33. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development
of this proposed rulemaking. The principal purposes of the
docket are: (1) To allow interested parties a means to identify
and locate documents so that they can effectively participate in
the rulemaking process, and (2) to serve as the record in case of
judicial review (except for interagency review materials). The
docket is available for public inspection at EPA's Air Docket,
which is listed under the ADDRESSES section of this notice.
B. Office of Management and Budget (OMB) Review
Under Executive Order 12291 (E.O. 12291), EPA must judge
whether a regulation is "major," and therefore subject to the
requirement "to the extent permitted by law" to prepare a
Regulatory Impact Analysis (RIA) in connection with each major
rule. Major rules are defined as those likely to result in the
following:
1. An annual effect on the economy of $100 million or more.
2. A major increase in costs or prices for consumers or
individual industries.
3. Significant adverse effects on competition, employment,
investment, productivity, innovation, or international trade.
Although some States already have operating permit programs
including fee provisions, the incremental cost of this regulation
is not small. The national estimate of incremental annualized
cost for the operating permit programs required by section
502(b)(3) of title V exceeds $100 million. Consequently, a
Regulatory Impact Analysis has been prepared.
Given the mandate within title V to develop this regulation,
the Agency has taken steps to provide for the timely
accomplishment of title V requirements. In following the
implementation principles mentioned in section II, EPA has
allowed flexibility in permit design, in use of general permits
to expedite the review process for certain smaller sources, and
in the phase-in implementation of certain requirements. The
Agency has thus attempted to reduce overall societal cost and any
adverse economic impact associated with meeting the environmental
objectives of title V. In addition, with permit fee revenue
collections from subject sources State and local agencies will
have the resources to develop and implement an accountable and
enforceable operating permit program.
The draft RIA was made available for public comment as part
of the May 10, 1991, proposal. In response to comments received,
the RIA was revised to incorporate greater clarity and detail
with respect to the numbers of sources affected and costs
incurred. Certain costs related to paperwork burdens were
increased as a result in both the RIA and the ICR (described
below). The new estimate for the annualized direct cost to
34,000 major sources and permitting agencies is $526 million.
This estimate includes some costs that are due to existing
State and local regulations, and are not attributable to this
rule. It excludes, however, costs associated with permitting
350,000 nonmajor air toxic sources that were included in the
Proposed Initial List of Categories of Sources under section
112(c)(1) of the Clean Air Act Amendments. Under today's final
rules, States may temporarily defer permit requirements for these
sources. The EPA encourages States to issue temporary
exemptions. If no such exemptions were granted, and if all of
these sources were required to obtain general permits, then the
direct cost to sources and permitting agencies would increase by
about $79 million annually. Use by the States of specific
permits, rather than the general permits that the EPA believes
are normally appropriate for these nonmajor air toxic sources,
will also raise costs unnecessarily. The EPA estimates that use
of specific rather than general permits would at least triple the
permitting costs to each source. The EPA projects that if, for
example, 25 percent of the nonmajor air toxic sources are not
granted deferrals, then actions by the States to require specific
rather than general permits would raise cost to sources and
permitting agencies by about $68 million annually. Finally, to
the extent that the EPA has underestimated the cost of obtaining
specific permits, and to the extent that States require
permitting for nonmajor air toxic sources using specific permits
(rather than general permits), the direct costs could be
increased as much as a billion dollars annually. The EPA
encourages States to consider cost differences between specific
and general type permits. The EPA recommends that States allow
sources to use the type of permit that achieves the requirements
of title V at lowest cost. The EPA believes the general permit
would normally be appropriate for the nonmajor air toxic sources
that are not granted exemptions.
The EPA will soon promulgate a Final Initial List of
Categories of Sources under section 112(c)(1) of the Act
Amendments. This Final Initial List is expected to reduce the
number of nonmajor air toxic sources that must comply with
permitting requirements to below 350,000.
The benefits of this rule include more efficient enforcement
and greater compliance with emission standards. Greater
compliance may result in an improvement in air quality. This
rule is not otherwise expected to yield gains in air quality
since the rule does not affect ambient air standards or emission
standards.
C. Regulatory Flexibility Act Compliance
Under the Regulatory Flexibility Act, whenever an Agency
publishes any proposed or final rule in the Federal Register, it
must prepare a Regulatory Flexibility Analysis (RFA) that
describes the impact of the rule on small entities (i.e., small
businesses, organizations, and governmental jurisdictions). That
analysis is not necessary, however, if an Agency's Administrator
certifies that the rule will not have a significant economic
impact on a substantial number of small entities.
Applicable EPA guidelines for determining whether an RFA is
required to accompany a rulemaking package state the criteria for
determining when the number of affected small entities is
"substantial" and whether there is a significant impact. The
determination of significant impact for small businesses
essentially depends upon compliance costs, production costs, and
predicted closures. For small governments, the determination of
significant impact depends upon compliance costs, operating
costs, and record keeping costs.
A regulatory flexibility screening analysis was prepared to
examine the potential for significant adverse impacts on small
entities associated with specific permitting provisions. This
analysis has revealed that without specific mitigation
provisions, substantial numbers of small entities may be
adversely impacted. Since potential adverse impacts could exist,
EPA will use and expects States to use, general permits and
deferred applicability of non-major sources to mitigate any such
potential impacts. To the extent any remaining significant
adverse impacts are probable, the small business assistance
program provisions of title V could provide further relief.
Consequently, EPA does not believe large numbers of small
entities will be adversely affected or will experience
disproportionate significant impacts. I hereby certify that this
rule as promulgated will not have a significant economic impact
on a substantial number of small business entities and thereby
does not require an RFA.
D. Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501 et.seq.),
Federal agencies must obtain OMB clearance for collection of
information from ten (10) or more non-federal respondents. Each
source subject to the requirements for obtaining a title V
operating permit will have to submit a permit application and
will make periodic compliance reports. These requirements
parallel what many sources are already reporting to State and
local permitting authorities and what States report to EPA. The
effect of these regulations will be to subject more sources to
such requirements, primarily those required to obtain a permit
due to classification as a major source under the title III air
toxics requirements or title I nonattainment requirements. The
Act specifies that major sources cannot be exempted from the
requirement to obtain a part 70 permit. Their inclusion in the
Act is due to the necessity for more effective air quality
management throughout the country.
Comments on the proposed Information Collection Request
(ICR) were received from two Federal agencies, an industry group,
and a research organization. All commenters felt that the cost
and burden hour estimates in the proposed ICR were understated.
Two commenters specifically identified major activities required
of sources and permitting authorities in the permitting process
which should be accounted for in the estimates. The need for
guidance on general permits was also mentioned by two commenters.
The final ICR has been updated to include estimates for two time
periods: 1) the first three years (years 1-3) after EPA
promulgates the part 70 regulations, as required by the Paperwork
Reduction Act; and 2) the following five years (years 4-8),
during which initial title V permits will be issued. Estimates
for years 4-8 have been provided for informational purposes. EPA
will be able to make better estimates of permit issuance costs
for years 4-8 after State and local title V programs are reviewed
and approved. It should be noted that the proposed ICR only
addressed years 4-8, not the first three years after
promulgation. Since the Act allows State and local agencies two
years after promulgation of EPA regulations to submit programs to
EPA, and it allows EPA a year to review and approve such
programs, it was assumed in the final ICR that only permitting
authorities will experience administrative burden during years 1-
3.
The analysis of years 4-8 in the final ICR has been updated
to respond to comments received. The revised ICR incorporates
several additional activities, including activities related to
requirements for public notices, public hearings, permit
revisions, and permit reopenings. The addition of these new
activities, along with additional analysis of burden hour
estimates by a group of permitting experts from the private and
government sectors, have resulted in increased burden hour and
cost estimates for permitting authorities and sources. For years
4-8, total annual cost estimates for permitting authorities have
increased from $15 to $160 million, and for sources these
estimates have increased from $115 million to $352 million
annually. In regard to guidance for general permits, EPA has
projects underway to develop model general permits for specific
source categories.
The information collection requirements in this rule have
been submitted for approval to the Office of Management and
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. These requirements are not effective until OMB approves
them and a technical amendment to that effect is published in the
Federal Register. The burden to all 112 State and local
permitting authorities for this collection of information during
the first three years after EPA promulgates the part 70
regulations, is estimated to total 1,944,880 hours equalling an
annual average of 5,788 hours per permitting agency. This
includes time for rule interpretation, analysis and/or revision
to legislative authority, analysis and/or development of
regulations, and development of a fee demonstration, standard
application form, and a transition plan.
Send comments regarding the burden estimate or any other
aspect of this collection of information, including suggestions
for reducing this burden to: Chief, Information Policy Branch
(PM-223Y), U.S. Environmental Protection Agency, 401 M Street,
S.W., Washington, D.C. 20460; and to the Office of Information
and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, marked "Attention: Desk Officer for EPA."
The information collection requirements contained in 40 CFR
part 70 have not been approved by the Office of Management and
Budget (OMB) and are not effective until OMB has approved them.
Dated: June 25, 1992
William K Reilly,
Administrator.
List of Subjects in 40 CFR Part 70
Administrative practice and procedures, Air pollution
control, Intergovernmental relations. For the reasons set out in the preamble, title 40, chapter I of
the Code of Federal Regulations is amended by adding a part 70 as
set forth below.
PART 70 - STATE OPERATING PERMIT PROGRAMS
Sec.
70.1 Program overview.
70.2 Definitions.
70.3 Applicability.
70.4 State program submittals and transition.
70.5 Permit applications.
70.6 Permit content.
70.7 Permit issuance, renewal, reopenings, and revisions.
70.8 Permit review by the EPA and affected States.
70.9 Fee determination and certification.
70.10 Federal oversight and sanctions.
70.11 Requirements for enforcement authority.
Authority: 42 U.S.C. 7401, et seq.
70.1 Program overview.
(a) The regulations in this part provide for the
establishment of comprehensive State air quality permitting
systems consistent with the requirements of title V of the Clean
Air Act (Act) (42 U.S.C. 7401, et seq.). These regulations
define the minimum elements required by the Act for State
operating permit programs and the corresponding standards and
procedures by which the Administrator will approve, oversee, and
withdraw approval of State operating permit programs.
(b) All sources subject to these regulations shall have a
permit to operate that assures compliance by the source with all
applicable requirements. While title V does not impose
substantive new requirements, it does require that fees be
imposed on sources and that certain procedural measures be
adopted especially with respect to compliance.
(c) Nothing in this part shall prevent a State, or
interstate permitting authority, from establishing additional or
more stringent requirements not inconsistent with this Act. The
EPA will approve State program submittals to the extent that they
are not inconsistent with the Act and these regulations. No
permit, however, can be less stringent than necessary to meet all
applicable requirements. In the case of Federal intervention in
the permit process, the Administrator reserves the right to
implement the State operating permit program, in whole or in
part, or the Federal program contained in regulations promulgated
under title V of the Act.
(d) The requirements of part 70, including provisions
regarding schedules for submission and approval or disapproval of
permit applications, shall apply to the permitting of affected
sources under the acid rain program, except as provided herein or
modified in regulations promulgated under title IV of the Act
(acid rain program).
(e) Issuance of State permits under this part may be
coordinated with issuance of permits under the Resource
Conservation and Recovery Act and under the Clean Water Act,
whether issued by the State, the U.S. Environmental Protection
Agency (EPA), or the U.S. Army Corps of Engineers.
70.2 Definitions.
The following definitions apply to part 70. Except as
specifically provided in this section, terms used in this part
retain the meaning accorded them under the applicable
requirements of the Act.
"Act" means the Clean Air Act, as amended, 42 U.S.C. 7401,
et seq.
"Affected source" shall have the meaning given to it in the
regulations promulgated under title IV of the Act.
"Affected States" are all States:
(1) Whose air quality may be affected and that are
contiguous to the State in which a part 70 permit, permit
modification or permit renewal is being proposed; or
(2) That are within 50 miles of the permitted source.
"Affected unit" shall have the meaning given to it in the
regulations promulgated under title IV of the Act.
"Applicable requirement" means all of the following as they
apply to emissions units in a part 70 source (including
requirements that have been promulgated or approved by EPA
through rulemaking at the time of issuance but have future-
effective compliance dates):
(1) Any standard or other requirement provided for in the
applicable implementation plan approved or promulgated by EPA
through rulemaking under title I of the Act that implements the
relevant requirements of the Act, including any revisions to that
plan promulgated in part 52 of this chapter;
(2) Any term or condition of any preconstruction permits
issued pursuant to regulations approved or promulgated through
rulemaking under title I, including parts C or D, of the Act;
(3) Any standard or other requirement under section 111 of
the Act, including section 111(d);
(4) Any standard or other requirement under section 112 of
the Act, including any requirement concerning accident prevention
under section 112(r)(7) of the Act;
(5) Any standard or other requirement of the acid rain
program under title IV of the Act or the regulations promulgated
thereunder;
(6) Any requirements established pursuant to section 504(b)
or section 114(a)(3) of the Act;
(7) Any standard or other requirement governing solid waste
incineration, under section 129 of the Act;
(8) Any standard or other requirement for consumer and
commercial products, under section 183(e) of the Act;
(9) Any standard or other requirement for tank vessels,
under section 183(f) of the Act;
(10) Any standard or other requirement of the program to
control air pollution from outer continental shelf sources, under
section 328 of the Act;
(11) Any standard or other requirement of the regulations
promulgated to protect stratospheric ozone under title VI of the
Act, unless the Administrator has determined that such
requirements need not be contained in a title V permit; and
(12) Any national ambient air quality standard or increment
or visibility requirement under part C of title I of the Act, but
only as it would apply to temporary sources permitted pursuant to
section 504(e) of the Act.
"Designated representative" shall have the meaning given to
it in section 402(26) of the Act and the regulations promulgated
thereunder.
"Draft permit" means the version of a permit for which the
permitting authority offers public participation under 70.7(h)
or affected State review under 70.8.
"Emissions allowable under the permit" means a federally
enforceable permit term or condition determined at issuance to be
required by an applicable requirement that establishes an
emissions limit (including a work practice standard) or a
federally enforceable emissions cap that the source has assumed
to avoid an applicable requirement to which the source would
otherwise be subject.
"Emissions unit" means any part or activity of a stationary
source that emits or has the potential to emit any regulated air
pollutant or any pollutant listed under section 112(b) of the
Act. This term is not meant to alter or affect the definition of
the term "unit" for purposes of title IV of the Act.
The "EPA" or the "Administrator" means the Administrator of
the EPA or his designee.
"Final permit" means the version of a part 70 permit issued
by the permitting authority that has completed all review
procedures required by 70.7 and 70.8.
"Fugitive emissions" are those emissions which could not
reasonably pass through a stack, chimney, vent, or other
functionally-equivalent opening.
"General permit" means a part 70 permit that meets the
requirements of 70.6(d).
"Major source" means any stationary source (or any group of
stationary sources that are located on one or more contiguous or
adjacent properties, and are under common control of the same
person (or persons under common control)) belonging to a single
major industrial grouping and that are described in paragraphs
(1), (2), or (3) of this definition. For the purposes of
defining "major source," a stationary source or group of
stationary sources shall be considered part of a single
industrial grouping if all of the pollutant emitting activities
at such source or group of sources on contiguous or adjacent
properties belong to the same Major Group (i.e., all have the
same two-digit code) as described in the Standard Industrial
Classification Manual, 1987.
(1) A major source under section 112 of the Act, which is
defined as:
(i) For pollutants other than radionuclides, any stationary
source or group of stationary sources located within a contiguous
area and under common control that emits or has the potential to
emit, in the aggregate, 10 tons per year (tpy) or more of any
hazardous air pollutant which has been listed pursuant to section
112(b) of the Act, 25 tpy or more of any combination of such
hazardous air pollutants, or such lesser quantity as the
Administrator may establish by rule. Notwithstanding the
preceding sentence, emissions from any oil or gas exploration or
production well (with its associated equipment) and emissions
from any pipeline compressor or pump station shall not be
aggregated with emissions from other similar units, whether or
not such units are in a contiguous area or under common control,
to determine whether such units or stations are major
sources; or
(ii) For radionuclides, "major source" shall have the
meaning specified by the Administrator by rule.
(2) A major stationary source of air pollutants, as defined
in section 302 of the Act, that directly emits or has the
potential to emit, 100 tpy or more of any air pollutant
(including any major source of fugitive emissions of any such
pollutant, as determined by rule by the Administrator). The
fugitive emissions of a stationary source shall not be considered
in determining whether it is a major stationary source for the
purposes of section 302(j) of the Act, unless the source belongs
to one of the following categories of stationary source:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more than
250 tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or nitric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plant;
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants;
(xxi) Fossil-fuel boilers (or combination thereof) totaling
more than 250 million British thermal units per hour heat input;
(xxii) Petroleum storage and transfer units with a total
storage capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil-fuel-fired steam electric plants of more than
250 million British thermal units per hour heat
input; or
(xxvii) All other stationary source categories regulated by
a standard promulgated under section 111 or 112 of the Act, but
only with respect to those air pollutants that have been
regulated for that category;
(3) A major stationary source as defined in part D of title
I of the Act, including:
(i) For ozone nonattainment areas, sources with the
potential to emit 100 tpy or more of volatile organic compounds
or oxides of nitrogen in areas classified as "marginal" or
"moderate," 50 tpy or more in areas classified as "serious," 25
tpy or more in areas classified as "severe," and 10 tpy or more
in areas classified as "extreme"; except that the references in
this paragraph to 100, 50, 25, and 10 tpy of nitrogen oxides
shall not apply with respect to any source for which the
Administrator has made a finding, under section 182(f)(1) or (2)
of the Act, that requirements under section 182(f) of the Act do
not apply;
(ii) For ozone transport regions established pursuant to
section 184 of the Act, sources with the potential to emit 50 tpy
or more of volatile organic compounds;
(iii) For carbon monoxide nonattainment areas (1) that are
classified as "serious," and (2) in which stationary sources
contribute significantly to carbon monoxide levels as determined
under rules issued by the Administrator, sources with the
potential to emit 50 tpy or more of carbon monoxide; and
(iv) For particulate matter (PM-10) nonattainment areas
classified as "serious," sources with the potential to emit 70
tpy or more of PM-10.
"Part 70 permit" or "permit" (unless the context suggests
otherwise) means any permit or group of permits covering a part
70 source that is issued, renewed, amended, or revised pursuant
to this part.
"Part 70 program" or "State program" means a program
approved by the Administrator under this part.
"Part 70 source" means any source subject to the permitting
requirements of this part, as provided in 70.3(a) and 70.3(b).
"Permit modification" means a revision to a part 70 permit
that meets the requirements of 70.7(e).
"Permit program costs" means all reasonable (direct and
indirect) costs required to develop and administer a permit
program, as set forth in 70.9(b) (whether such costs are
incurred by the permitting authority or other State or local
agencies that do not issue permits directly, but that support
permit issuance or administration).
"Permit revision" means any permit modification or
administrative permit amendment.
"Permitting authority" means either of the following:
(1) The Administrator, in the case of EPA-implemented
programs; or
(2) The State air pollution control agency, local agency,
other State agency, or other agency authorized by the
Administrator to carry out a permit program under this part.
"Potential to emit" means the maximum capacity of a
stationary source to emit any air pollutant under its physical
and operational design. Any physical or operational limitation
on the capacity of a source to emit an air pollutant, including
air pollution control equipment and restrictions on hours of
operation or on the type or amount of material combusted, stored,
or processed, shall be treated as part of its design if the
limitation is enforceable by the Administrator. This term does
not alter or affect the use of this term for any other purposes
under the Act, or the term "capacity factor" as used in title IV
of the Act or the regulations promulgated thereunder.
"Proposed permit" means the version of a permit that the
permitting authority proposes to issue and forwards to the
Administrator for review in compliance with 70.8.
"Regulated air pollutant" means the following:
(1) Nitrogen oxides or any volatile organic compounds;
(2) Any pollutant for which a national ambient air quality
standard has been promulgated;
(3) Any pollutant that is subject to any standard
promulgated under section 111 of the Act;
(4) Any Class I or II substance subject to a standard
promulgated under or established by title VI of the Act; or
(5) Any pollutant subject to a standard promulgated under
section 112 or other requirements established under section 112
of the Act, including sections 112(g), (j), and (r) of the Act,
including the following:
(i) Any pollutant subject to requirements under section
112(j) of the Act. If the Administrator fails to promulgate a
standard by the date established pursuant to section 112(e) of
the Act, any pollutant for which a subject source would be major
shall be considered to be regulated on the date 18 months after
the applicable date established pursuant to section 112(e) of the
Act; and
(ii) Any pollutant for which the requirements of section
112(g)(2) of the Act have been met, but only with respect to the
individual source subject to section 112(g)(2) requirement.
"Regulated pollutant (for presumptive fee calculation),"
which is used only for purposes of 70.9(b)(2), means any
"regulated air pollutant" except the following:
(1) Carbon monoxide;
(2) Any pollutant that is a regulated air pollutant solely
because it is a Class I or II substance subject to a standard
promulgated under or established by title VI of the Act; or
(3) Any pollutant that is a regulated air pollutant solely
because it is subject to a standard or regulation under section
112(r) of the Act.
"Renewal" means the process by which a permit is reissued at
the end of its term.
"Responsible official" means one of the following:
(1) For a corporation: a president, secretary, treasurer,
or vice-president of the corporation in charge of a principal
business function, or any other person who performs similar
policy or decision-making functions for the corporation, or a
duly authorized representative of such person if the
representative is responsible for the overall operation of one or
more manufacturing, production, or operating facilities applying
for or subject to a permit and either:
(i) the facilities employ more than 250 persons or have
gross annual sales or expenditures exceeding $25 million (in
second quarter l980 dollars); or
(ii) the delegation of authority to such representative is
approved in advance by the permitting authority;
(2) For a partnership or sole proprietorship: a general
partner or the proprietor, respectively;
(3) For a municipality, State, Federal, or other public
agency: either a principal executive officer or ranking elected
official. For the purposes of this part, a principal executive
officer of a Federal agency includes the chief executive officer
having responsibility for the overall operations of a principal
geographic unit of the agency (e.g., a Regional Administrator of
EPA); or
(4) For affected sources:
(i) The designated representative in so far as actions,
standards, requirements, or prohibitions under title IV of the
Act or the regulations promulgated thereunder are concerned; and
(ii) The designated representative for any other purposes
under part 70.
"Section 502(b)(10) changes" are changes that contravene an
express permit term. Such changes do not include changes that
would violate applicable requirements or contravene federally
enforceable permit terms and conditions that are monitoring
(including test methods), recordkeeping, reporting, or compliance
certification requirements.
"State" means any non-Federal permitting authority,
including any local agency, interstate association, or statewide
program. The term "State" also includes the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern
Mariana Islands. Where such meaning is clear from the context,
"State" shall have its conventional meaning. For purposes of the
acid rain program, the term "State" shall be limited to
authorities within the 48 contiguous States and the District of
Columbia as provided in section 402(14) of the Act.
"Stationary source" means any building, structure, facility,
or installation that emits or may emit any regulated air
pollutant or any pollutant listed under section 112(b) of the
Act.
"Whole program" means a part 70 permit program, or any
combination of partial programs, that meet all the requirements
of these regulations and cover all the part 70 sources in the
entire State. For the purposes of this definition, the term
"State" does not include local permitting authorities, but refers
only to the entire State, Commonwealth, or Territory.
70.3 Applicability.
(a) Part 70 sources. A State program with whole or partial
approval under this part must provide for permitting of at least
the following sources:
(1) Any major source;
(2) Any source, including an area source, subject to a
standard, limitation, or other requirement under section 111 of
the Act;
(3) Any source, including an area source, subject to a
standard or other requirement under section 112 of the Act,
except that a source is not required to obtain a permit solely
because it is subject to regulations or requirements under
section 112(r) of this Act;
(4) Any affected source; and
(5) Any source in a source category designated by the
Administrator pursuant to this section.
(b) Source category exemptions. (1) All sources listed in
paragraph (a) of this section that are not major sources,
affected sources, or solid waste incineration units required to
obtain a permit pursuant to section 129(e) of the Act, may be
exempted by the State from the obligation to obtain a part 70
permit until such time as the Administrator completes a
rulemaking to determine how the program should be structured for
non-major sources and the appropriateness of any permanent
exemptions in addition to those provided for in paragraph (b)(4)
of this section.
(2) In the case of nonmajor sources subject to a standard
or other requirement under either section 111 or section 112 of
the Act after [date of promulgation], the Administrator will
determine whether to exempt any or all such applicable sources
from the requirement to obtain a part 70 permit at the time that
the new standard is promulgated.
(3) Any source listed in paragraph (a) of this section
exempt from the requirement to obtain a permit under this
section may opt to apply for a permit under a part 70 program.
(4) Unless otherwise required by the State to obtain a part
70 permit, the following source categories are exempted from the
obligation to obtain a part 70 permit:
(i) All sources and source categories that would be
required to obtain a permit solely because they are subject to
part 60, Subpart AAA - Standards of Performance for New
Residential Wood Heaters; and
(ii) All sources and source categories that would be
required to obtain a permit solely because they are subject to
part 61, Subpart M - National Emission Standard for Hazardous Air
Pollutants for Asbestos, section 6l.145, Standard for Demolition
and Renovation.
(c) Emissions units and part 70 sources. (1) For major
sources, the permitting authority shall include in the permit all
applicable requirements for all relevant emissions units in the
major source.
(2) For any nonmajor source subject to the part 70 program
under paragraphs (a) or (b) of this section, the permitting
authority shall include in the permit all applicable requirements
applicable to emissions units that cause the source to be subject
to the part 70 program.
(d) Fugitive emissions. Fugitive emissions from a part 70
source shall be included in the permit application and the part
70 permit in the same manner as stack emissions, regardless of
whether the source category in question is included in the list
of sources contained in the definition of major source.
70.4 State program submittals and transition.
(a) Date for submittal. Not later than November 15, 1993,
the Governor of each State shall submit to the Administrator for
approval a proposed part 70 program, under State law or under an
interstate compact, meeting the requirements of this part. If
part 70 is subsequently revised such that the Administrator
determines that it is necessary to require a change to an
approved State program, the required revisions to the program
shall be submitted within 12 months of the final changes to part
70 or within such other period as authorized by the
Administrator.
(b) Elements of the initial program submission. Any State
that seeks to administer a program under this part shall submit
to the Administrator a letter of submittal from the Governor or
his designee requesting EPA approval of the program and at least
three copies of a program submission. The submission shall
contain the following:
(1) A complete program description describing how the State
intends to carry out its responsibilities under this part.
(2) The regulations that comprise the permitting program,
reasonably available evidence of their procedurally correct
adoption, (including any notice of public comment and any
significant comments received on the proposed part 70 program as
requested by the Administrator), and copies of all applicable
State or local statutes and regulations including those governing
State administrative procedures that either authorize the part 70
program or restrict its implementation. The State shall include
with the regulations any criteria used to determine insignificant
activities or emission levels for purposes of determining
complete applications consistent with 70.5(c).
(3) A legal opinion from the Attorney General for the
State, or the attorney for those State, local, or interstate air
pollution control agencies that have independent legal counsel,
stating that the laws of the State, locality, or interstate
compact provide adequate authority to carry out all aspects of
the program. This statement shall include citations to the
specific statutes, administrative regulations, and, where
appropriate, judicial decisions that demonstrate adequate
authority. State statutes and regulations cited by the State
Attorney General or independent legal counsel shall be in the
form of lawfully adopted State statutes and regulations at the
time the statement is signed and shall be fully effective by the
time the program is approved. To qualify as "independent legal
counsel," the attorney signing the statement required by this
section shall have full authority to independently represent the
State agency in court on all matters pertaining to the State
program. The legal opinion shall also include a demonstration of
adequate legal authority to carry out the requirements of this
part, including authority to carry out each of the following:
(i) Issue permits and assure compliance with each
applicable requirement and requirement of this part by all part
70 sources.
(ii) Incorporate monitoring, recordkeeping, reporting, and
compliance certification requirements into part 70 permits
consistent with 70.6.
(iii) Issue permits for a fixed term of 5 years in the case
of permits with acid rain provisions and issue all other permits
for a period not to exceed 5 years, except for permits issued for
solid waste incineration units combusting municipal waste subject
to standards under section 129(e) of the Act.
(iv) Issue permits for solid waste incineration units
combusting municipal waste subject to standards under section
129(e) of the Act for a period not to exceed 12 years and review
such permits at least every 5 years. No permit for a solid waste
incineration unit may be issued by an agency, instrumentality or
person that is also responsible, in whole or in part, for the
design and construction or operation of the unit.
(v) Incorporate into permits all applicable requirements
and requirements of this part.
(vi) Terminate, modify, or revoke and reissue permits for
cause.
(vii) Enforce permits, permit fee requirements, and the
requirement to obtain a permit, as specified in 70.11.
(viii) Make available to the public any permit application,
compliance plan, permit, and monitoring and compliance
certification report pursuant to section 503(e) of the Act,
except for information entitled to confidential treatment
pursuant to section 114(c) of the Act. The contents of a part 70
permit shall not be entitled to protection under section 114(c)
of the Act.
(ix) Not issue a permit if the Administrator timely objects
to its issuance pursuant to 70.8(c) or, if the permit has not
already been issued, to 70.8(d).
(x) Provide an opportunity for judicial review in State
court of the final permit action by the applicant, any person who
participated in the public participation process provided
pursuant to 70.7(h), and any other person who could obtain
judicial review of such actions under State laws.
(xi) Provide that, solely for the purposes of obtaining
judicial review in State court for failure to take final action,
final permit action shall include the failure of the permitting
authority to take final action on an application for a permit,
permit renewal, or permit revision within the time specified in
the State program. If the State program allows sources to make
changes subject to post hoc review [as set forth in 70.7(e)(2)
and (3)], the permitting authority's failure to take final action
within 90 days of receipt of an application requesting minor
permit modification procedures (or 180 days for modifications
subject to group processing requirements) must be subject to
judicial review in State court.
(xii) Provide that the opportunity for judicial review
described in paragraph (b)(3)(x) of this section shall be the
exclusive means for obtaining judicial review of the terms and
conditions of permits, and require that such petitions for
judicial review must be filed no later than 90 days after the
final permit action, or such shorter time as the State shall
designate. Notwithstanding the preceding requirement, petitions
for judicial review of final permit actions can be filed after
the deadline designated by the State, only if they are based
solely on grounds arising after the deadline for judicial review.
Such petitions shall be filed no later than 90 days after the new
grounds for review arise or such shorter time as the State shall
designate. If the final permit action being challenged is the
permitting authority's failure to take final action, a petition
for judicial review may be filed any time before the permitting
authority denies the permit or issues the final permit.
(xiii) Ensure that the authority of the State/local
permitting Agency is not used to modify the acid rain program
requirements.
(4) Relevant permitting program documentation not contained
in the State regulations, including the following:
(i) Copies of the permit form(s), application form(s), and
reporting form(s) the State intends to employ in its program; and
(ii) Relevant guidance issued by the State to assist in the
implementation of its permitting program, including criteria for
monitoring source compliance (e.g., inspection strategies).
(5) A complete description of the State's compliance
tracking and enforcement program or reference to any agreement
the State has with EPA that provides this information.
(6) A showing of adequate authority and procedures to
determine within 60 days of receipt whether applications
(including renewal applications) are complete, to request such
other information as needed to process the application, and to
take final action on complete applications within 18 months of
the date of their submittal, except for initial permit
applications, for which the permitting authority may take up to 3
years from the effective date of the program to take final action
on the application, as provided for in the transition plan.
(7) A demonstration, consistent with 70.9, that the permit
fees required by the State program are sufficient to cover permit
program costs.
(8) A statement that adequate personnel and funding have
been made available to develop, administer, and enforce the
program. This statement shall include the following:
(i) A description in narrative form of the scope,
structure, coverage, and processes of the State program.
(ii) A description of the organization and structure of the
agency or agencies that will have responsibility for
administering the program, including the information specified in
this paragraph. If more than one agency is responsible for
administration of a program, the responsibilities of each agency
must be delineated, their procedures for coordination must be set
forth, and an agency shall be designated as a "lead agency" to
facilitate communications between EPA and the other agencies
having program responsibility.
(iii) A description of the agency staff who will carry out
the State program, including the number, occupation, and general
duties of the employees. The State need not submit complete job
descriptions for every employee carrying out the State program.
(iv) A description of applicable State procedures,
including permitting procedures and any State administrative or
judicial review procedures.
(v) An estimate of the permit program costs for the first 4
years after approval, and a description of how the State plans to
cover those costs.
(9) A commitment from the State to submit, at least
annually to the Administrator, information regarding the State's
enforcement activities including, but not limited to, the number
of criminal and civil, judicial and administrative enforcement
actions either commenced or concluded; the penalties, fines, and
sentences obtained in those actions; and the number of
administrative orders issued.
(10) A requirement under State law that, if a timely and
complete application for a permit renewal is submitted,
consistent with 70.5(a)(2), but the State has failed to issue or
deny the renewal permit before the end of the term of the
previous permit, then:
(i) The permit shall not expire until the renewal permit
has been issued or denied and any permit shield that may be
granted pursuant to 70.6(f) may extend beyond the original
permit term until renewal; or
(ii) All the terms and conditions of the permit including
any permit shield that may be granted pursuant to 70.6(f) shall
remain in effect until the renewal permit has been issued or
denied.
(11) A transition plan providing a schedule for submittal
and final action on initial permit applications for all part 70
sources. This plan shall provide that:
(i) Submittal of permit applications by all part 70 sources
(including any sources subject to a partial or interim program)
shall occur within 1 year after the effective date of the permit
program;
(ii) Final action shall be taken on at least one-third of
such applications annually over a period not to exceed 3 years
after such effective date;
(iii) Any complete permit application containing an early
reduction demonstration under section 112(i)(5) of the Act shall
be acted on within 9 months of receipt of the complete
application; and
(iv) Submittal of permit applications and the permitting of
affected sources shall occur in accordance with the deadlines in
title IV of the Act and the regulations promulgated thereunder.
(12) Provisions consistent with paragraphs (b)(12)(i)
through (iii) of this section to allow changes within a permitted
facility without requiring a permit revision, if the changes are
not modifications under any provision of title I of the Act and
the changes do not exceed the emissions allowable under the
permit (whether expressed therein as a rate of emissions or in
terms of total emissions): Provided that the facility provides
the Administrator and the permitting authority with written
notification as required below in advance of the proposed
changes, which shall be a minimum of 7 days, unless the
permitting authority provides in its regulations a different time
frame for emergencies. The source, permitting authority, and EPA
shall attach each such notice to their copy of the relevant
permit. The following provisions implement this requirement of
an approvable part 70 permit program:
(i) The program shall allow permitted sources to make
section 502(b)(10) changes without requiring a permit revision,
if the changes are not modifications under any provision of title
I of the Act and the changes do not exceed the emissions
allowable under the permit (whether expressed therein as a rate
of emissions or in terms of total emissions).
(A) For each such change, the written notification required
above shall include a brief description of the change within the
permitted facility, the date on which the change will occur, any
change in emissions, and any permit term or condition that is no
longer applicable as a result of the change.
(B) The permit shield described in 70.6(f) of this part
shall not apply to any change made pursuant to this paragraph
(12)(i).
(ii) The program may provide for permitted sources to trade
increases and decreases in emissions in the permitted facility,
where the applicable implementation plan provides for such
emissions trades without requiring a permit revision and based on
the 7-day notice prescribed in this paragraph (b)(12)(ii). This
provision is available in those cases where the permit does not
already provide for such emissions trading.
(A) Under this paragraph (b)(12)(ii), the written
notification required above shall include such information as may
be required by the provision in the applicable implementation
plan authorizing the emissions trade, including at a minimum,
when the proposed change will occur, a description of each such
change, any change in emissions, the permit requirements with
which the source will comply using the emissions trading
provisions of the applicable implementation plan, and the
pollutants emitted subject to the emissions trade. The notice
shall also refer to the provisions with which the source will
comply in the applicable implementation plan and that provide for
the emissions trade.
(B) The permit shield described in 70.6(f) of this part
shall not extend to any change made under this paragraph
(b)(12)(ii). Compliance with the permit requirements that the
source will meet using the emissions trade shall be determined
according to requirements of the applicable implementation plan
authorizing the emissions trade.
(iii) The program shall require the permitting authority,
if a permit applicant requests it, to issue permits that contain
terms and conditions, including all terms required under
70.6(a) and (c) of this part to determine compliance, allowing
for the trading of emissions increases and decreases in the
permitted facility solely for the purpose of complying with a
federally-enforceable emissions cap that is established in the
permit independent of otherwise applicable requirements. The
permit applicant shall include in its application proposed
replicable procedures and permit terms that ensure the emissions
trades are quantifiable and enforceable. The permitting
authority shall not be required to include in the emissions
trading provisions any emissions units for which emissions are
not quantifiable or for which there are no replicable procedures
to enforce the emissions trades. The permit shall also require
compliance with all applicable requirements.
(A) Under this paragraph (b)(12)(iii), the written
notification required above shall state when the change will
occur and shall describe the changes in emissions that will
result and how these increases and decreases in emissions will
comply with the terms and conditions of the permit.
(B) The permit shield described in 70.6(f) of this part
may extend to terms and conditions that allow such increases and
decreases in emissions.
(13) Provisions for adequate, streamlined, and reasonable
procedures for expeditious review of permit revisions or
modifications. The program may meet this requirement by using
procedures that meet the requirements of 70.7(e) or that are
substantially equivalent to those provided in 70.7(e).
(14) If a State allows changes that are not addressed or
prohibited by the permit, other than those described in paragraph
(b)(15) of this section, to be made without a permit revision,
provisions meeting the requirements of (i) through (iii) of this
paragraph. Although a State may, as a matter of State law,
prohibit sources from making such changes without a permit
revision, any such prohibition shall not be enforceable by the
Administrator or by citizens under the Act unless the prohibition
is required by an applicable requirement. Any State procedures
implementing such a State law prohibition must include the
requirements of (i) through (iii) of this paragraph.
(i) Each such change shall meet all applicable requirements
and shall not violate any existing permit term or condition.
(ii) Sources must provide contemporaneous written notice to
the permitting authority and EPA of each such change, except for
changes that qualify as insignificant under the provisions
adopted pursuant to 70.5(c). Such written notice shall describe
each such change, including the date, any change in emissions,
pollutants emitted, and any applicable requirement that would
apply as a result of the change.
(iii) The change shall not qualify for the shield under
70.6(f).
(iv) The permittee shall keep a record describing changes
made at the source that result in emissions of a regulated air
pollutant subject to an applicable requirement, but not otherwise
regulated under the permit, and the emissions resulting from
those changes.
(15) Provisions prohibiting sources from making, without a
permit revision, changes that are not addressed or prohibited by
the part 70 permit, if such changes are subject to any
requirements under title IV of the Act or are modifications under
any provision of title I of the Act.
(16) Provisions requiring the permitting authority to
implement the requirements of 70.6 and 70.7.
(c) Partial programs. (1) The EPA may approve a partial
program that applies to all part 70 sources within a limited
geographic area (e.g., a local agency program covering all
sources within the agency's jurisdiction). To be approvable, any
partial program must, at a minimum, ensure compliance with all of
the following applicable requirements, as they apply to the
sources covered by the partial program:
(i) All requirements of title V of the Act and of
part 70;
(ii) All applicable requirements of title IV of the Act and
regulations promulgated thereunder which apply to affected
sources; and
(iii) All applicable requirements of title I of the Act,
including those established under sections 111 and 112 of the
Act.
(2) Any partial permitting program, such as that of a local
air pollution control agency, providing for the issuance of
permits by a permitting authority other than the State, shall be
consistent with all the elements required in paragraphs (b)(1)
through (16) of this section.
(3) Approval of any partial program does not relieve the
State from its obligation to submit a whole program or from
application of any sanctions for failure to submit a fully-
approvable whole program.
(4) Any partial program may obtain interim approval under
paragraph (d) of this section if it substantially meets the
requirements of this paragraph (c).
(d) Interim approval. (1) If a program (including a
partial permit program) submitted under this part substantially
meets the requirements of this part, but is not fully approvable,
the Administrator may by rule grant the program interim approval.
(2) Interim approval shall expire on a date set by the
Administrator (but not later than 2 years after such approval),
and may not be renewed. Sources shall become subject to the
program according to the schedule approved in the State program.
Permits granted under an interim approval shall expire at the end
of their fixed term, unless renewed under a part 70 program.
(3) The EPA will grant interim approval to any program if
it meets each of the following minimum requirements:
(i) Adequate fees. The program must provide for collecting
permit fees adequate for it to meet the requirements of 70.9.
(ii) Applicable requirements. The program must provide for
adequate authority to issue permits that assure compliance with
the requirements of paragraph (c)(1) of this section for those
major sources covered by the program.
(iii) Fixed term. The program must provide for fixed
permit terms, consistent with paragraph (b)(3)(iii) and (iv) of
this section.
(iv) Public participation. The program must provide for
adequate public notice of and an opportunity for public comment
and a hearing on draft permits and revisions, except for
modifications qualifying for minor permit modification procedures
under 70.7(e).
(v) EPA and affected State review. The program must allow
EPA an opportunity to review each proposed permit, including
permit revisions, and to object to its issuance consistent with
70.8(c). The program must provide for affected State review
consistent with 70.8(b).
(vi) Permit issuance. The program must provide that the
proposed permit will not be issued if EPA objects to its
issuance.
(vii) Enforcement. The program must contain authority to
enforce permits, including the authority to assess penalties
against sources that do not comply with their permits or with the
requirement to obtain a permit.
(viii) Operational flexibility. The program must allow
changes within a permitted facility without requiring a permit
revision, if the changes are not modifications under any
provision of title I of the Act and the changes do not exceed the
emissions allowable under the permit, consistent with paragraph
(b)(12).
(ix) Streamlined procedures. The program must provide for
streamlined procedures for issuing and revising permits and
determining expeditiously after receipt of a permit application
or application for a permit revision whether such application is
complete.
(x) Permit application. The program submittal must include
copies of the permit application and reporting form(s) that the
State will use in implementing the interim program.
(xi) Alternative scenarios. The program submittal must
include provisions to insure that alternate scenarios requested
by the source are included in the part 70 permit pursuant to
70.6(a)(9).
(e) EPA review of permit program submittals. Within 1 year
after receiving a program submittal, the Administrator shall
approve or disapprove the program, in whole or in part, by
publishing a notice in the Federal Register. Prior to such
notice, the Administrator shall provide an opportunity for public
comment on such approval or disapproval. Any EPA action
disapproving a program, in whole or in part, shall include a
statement of the revisions or modifications necessary to obtain
full approval. The Administrator shall approve State programs
that conform to the requirements of this part.
(1) Within 60 days of receipt by EPA of a State program
submission, EPA will notify the State whether its submission is
complete enough to warrant review by EPA for either full,
partial, or interim approval. If EPA finds that a State's
submission is complete, the 1-year review period (i.e., the
period of time allotted for formal EPA review of a proposed State
program) shall be deemed to have begun on the date of receipt of
the State's submission. If EPA finds that a State's submission
is incomplete, the 1-year review period shall not begin until all
the necessary information is received by EPA.
(2) If the State's submission is materially changed during
the 1-year review period, the Administrator may extend the review
period for no more than 1 year following receipt of the revised
submission.
(3) In any notice granting interim or partial approval, the
Administrator shall specify the changes or additions that must be
made before the program can receive full approval and the
conditions for implementation of the program until that time.
(f) State response to EPA review of program.--(1)
Disapproval. The State shall submit to EPA program revisions or
modifications required by the Administrator's action disapproving
the program, or any part thereof, within 180 days of receiving
notification of the disapproval.
(2) Interim approval. The State shall submit to EPA
changes to the program addressing the deficiencies specified in
the interim approval no later than 6 months prior to the
expiration of the interim approval.
(g) Effective date. The effective date of a part 70
program, including any partial or interim program approved under
this part, shall be the effective date of approval by the
Administrator.
(h) Individual permit transition. Upon approval of a State
program, the Administrator shall suspend the issuance of Federal
permits for those activities subject to the approved State
program, except that the Administrator will continue to issue
phase I acid rain permits. After program approval, EPA shall
retain jurisdiction over any permit (including any general
permit) that it has issued unless arrangements have been made
with the State to assume responsibility for these permits. Where
EPA retains jurisdiction, it will continue to process permit
appeals and modification requests, to conduct inspections, and to
receive and review monitoring reports. If any permit appeal or
modification request is not finally resolved when the federally-
issued permit expires, EPA may, with the consent of the State,
retain jurisdiction until the matter is resolved. Upon request
by a State, the Administrator may delegate authority to implement
all or part of a permit issued by EPA, if a part 70 program has
been approved for the State. The delegation may include
authorization for the State to collect appropriate fees,
consistent with 70.9.
(i) Program revisions. Either EPA or a State with an
approved program may initiate a program revision. Program
revision may be necessary when the relevant Federal or State
statutes or regulations are modified or supplemented. The State
shall keep EPA apprised of any proposed modifications to its
basic statutory or regulatory authority or procedures.
(1) If the Administrator determines pursuant to 70.10 that
a State is not adequately administering the requirements of this
part, or that the State's permit program is inadequate in any
other way, the State shall revise the program or its means of
implementation to correct the inadequacy. The program shall be
revised within 180 days, or such other period as the
Administrator may specify, following notification by the
Administrator, or within 2 years if the State demonstrates that
additional legal authority is necessary to make the program
revision.
(2) Revision of a State program shall be accomplished as
follows:
(i) The State shall submit a modified program description,
Attorney General's statement, or such other documents as EPA
determines to be necessary.
(ii) After EPA receives a proposed program revision, it
will publish in the Federal Register a public notice summarizing
the proposed change and provide a public comment period of at
least 30 days.
(iii) The Administrator shall approve or disapprove program
revisions based on the requirements of this part and of the Act.
(iv) A program revision shall become effective upon the
approval of the Administrator. Notice of approval of any
substantial revision shall be published in the Federal Register.
Notice of approval of nonsubstantial program revisions may be
given by a letter from the Administrator to the Governor or a
designee.
(v) The Governor of any State with an approved part 70
program shall notify EPA whenever the Governor proposes to
transfer all or part of the program to any other agency, and
shall identify any new division of responsibilities among the
agencies involved. The new agency is not authorized to
administer the program until the revision has been approved by
the Administrator under this paragraph.
(3) Whenever the Administrator has reason to believe that
circumstances have changed with respect to a State program, he
may request, and the State shall provide, a supplemental Attorney
General's statement, program description, or such other documents
or information as he determines are necessary.
(j) Sharing of information. (1) Any information obtained
or used in the administration of a State program shall be
available to EPA upon request without restriction and in a form
specified by the Administrator, including computer-readable files
to the extent practicable. If the information has been submitted
to the State under a claim of confidentiality, the State may
require the source to submit this information to the
Administrator directly. Where the State submits information to
the Administrator under a claim of confidentiality, the State
shall submit that claim to EPA when providing information to EPA
under this section. Any information obtained from a State or
part 70 source accompanied by a claim of confidentiality will be
treated in accordance with the regulations in part 2 of this
chapter.
(2) The EPA will furnish to States with approved programs
the information in its files that the State needs to implement
its approved program. Any such information submitted to EPA
under a claim of confidentiality will be subject to the
regulations in part 2 of this chapter.
(k) Administration and enforcement. Any State that fails
to adopt a complete, approvable part 70 program, or that EPA
determines is not adequately administering or enforcing such a
program, shall be subject to certain Federal sanctions as set
forth in 70.10.
70.5 Permit applications.
(a) Duty to apply. For each part 70 source, the owner or
operator shall submit a timely and complete permit application in
accordance with this section.
(1) Timely application. (i) A timely application for a
source applying for a part 70 permit for the first time is one
that is submitted within 12 months after the source becomes
subject to the permit program or on or before such earlier date
as the permitting authority may establish.
(ii) Part 70 sources required to meet the requirements
under section 112(g) of the Act, or to have a permit under the
preconstruction review program approved into the applicable
implementation plan under part C or D of title I of the Act,
shall file a complete application to obtain the part 70 permit or
permit revision within 12 months after commencing operation or on
or before such earlier date as the permitting authority may
establish. Where an existing part 70 permit would prohibit such
construction or change in operation, the source must obtain a
permit revision before commencing operation.
(iii) For purposes of permit renewal, a timely application
is one that is submitted at least 6 months prior to the date of
permit expiration, or such other longer time as may be approved
by the Administrator that ensures that the term of the permit
will not expire before the permit is
renewed. In no event shall this time be greater than 18 months.
(iv) Applications for initial phase II acid rain permits
shall be submitted to the permitting authority by January 1, 1996
for sulfur dioxide, and by January 1, 1998 for nitrogen oxides.
(2) Complete application. The program shall provide
criteria and procedures for determining in a timely fashion when
applications are complete. To be deemed complete, an application
must provide all information required pursuant to paragraph (c)
of this section, except that applications for permit revision
need supply such information only if it is related to the
proposed change. Information required under paragraph (c) of
this section must be sufficient to evaluate the subject source
and its application and to determine all applicable requirements.
The program shall require that a responsible official certify the
submitted information consistent with paragraph (d) of this
section. Unless the permitting authority determines that an
application is not complete within 60 days of receipt of the
application, such application shall be deemed to be complete,
except as otherwise provided in 70.7(a)(4). If, while
processing an application that has been determined or deemed to
be complete, the permitting authority determines that additional
information is necessary to evaluate or take final action on that
application, it may request such information in writing and set a
reasonable deadline for a response. The source's ability to
operate without a permit, as set forth in 70.7(b), shall be in
effect from the date the application is determined or deemed to
be complete until the final permit is issued, provided that the
applicant submits any requested additional information by the
deadline specified by the permitting authority.
(3) Confidential information. In the case where a source
has submitted information to the State under a claim of
confidentiality, the permitting authority may also require the
source to submit a copy of such information directly to the
Administrator.
(b) Duty to supplement or correct application. Any
applicant who fails to submit any relevant facts or who has
submitted incorrect information in a permit application shall,
upon becoming aware of such failure or incorrect submittal,
promptly submit such supplementary facts or corrected
information. In addition, an applicant shall provide additional
information as necessary to address any requirements that become
applicable to the source after the date it filed a complete
application but prior to release of a draft permit.
(c) Standard application form and required information.
The State program under this part shall provide for a standard
application form or forms. Information as described below for
each emissions unit at a part 70 source shall be included in the
application. The Administrator may approve as part of a State
program a list of insignificant activities and emissions levels
which need not be included in permit applications. However, for
insignificant activities which are exempted because of size or
production rate, a list of such insignificant activities must be
included in the application. An application may not omit
information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate the fee amount
required under the schedule approved pursuant to 70.9. The
permitting authority may use discretion in developing application
forms that best meet program needs and administrative efficiency.
The forms and attachments chosen, however, shall include the
elements specified below:
(1) Identifying information, including company name and
address (or plant name and address if different from the company
name), owner's name and agent, and telephone number and names of
plant site manager/contact.
(2) A description of the source's processes and products
(by Standard Industrial Classification Code) including any
associated with each alternate scenario identified by the source.
(3) The following emissions-related information:
(i) All emissions of pollutants for which the source is
major, and all emissions of regulated air pollutants. A permit
application shall describe all emissions of regulated air
pollutants emitted from any emissions unit, except where such
units are exempted under this paragraph (c). The permitting
authority shall require additional information related to the
emissions of air pollutants sufficient to verify which
requirements are applicable to the source, and other information
necessary to collect any permit fees owed under the fee schedule
approved pursuant to 70.9(b).
(ii) Identification and description of all points of
emissions described in paragraph (c)(3)(i) of this section in
sufficient detail to establish the basis for fees and
applicability of requirements of the Act.
(iii) Emissions rates in tpy and in such terms as are
necessary to establish compliance consistent with the applicable
standard reference test method.
(iv) The following information to the extent it is needed
to determine or regulate emissions: fuels, fuel use, raw
materials, production rates, and operating schedules.
(v) Identification and description of air pollution control
equipment and compliance monitoring devices or activities.
(vi) Limitations on source operation affecting emissions or
any work practice standards, where applicable, for all regulated
pollutants at the part 70 source.
(vii) Other information required by any applicable
requirement (including information related to stack height
limitations developed pursuant to section 123 of the Act).
(viii) Calculations on which the information in items (i)
through (vii) above is based.
(4) The following air pollution control requirements:
(i) Citation and description of all applicable
requirements, and
(ii) Description of or reference to any applicable test
method for determining compliance with each applicable
requirement.
(5) Other specific information that may be necessary to
implement and enforce other applicable requirements of the Act or
of this part or to determine the applicability of such
requirements.
(6) An explanation of any proposed exemptions from
otherwise applicable requirements.
(7) Additional information as determined to be necessary by
the permitting authority to define alternative operating
scenarios identified by the source pursuant to 70.6(a)(9) or to
define permit terms and conditions implementing 70.4(b)(12) or
70.6(a)(10).
(8) A compliance plan for all part 70 sources that contains
all the following:
(i) A description of the compliance status of the source
with respect to all applicable requirements.
(ii) A description as follows:
(A) For applicable requirements with which the source is in
compliance, a statement that the source will continue to comply
with such requirements.
(B) For applicable requirements that will become effective
during the permit term, a statement that the source will meet
such requirements on a timely basis.
(C) For requirements for which the source is not in
compliance at the time of permit issuance, a narrative
description of how the source will achieve compliance with such
requirements.
(iii) A compliance schedule as follows:
(A) For applicable requirements with which the source is in
compliance, a statement that the source will continue to comply
with such requirements.
(B) For applicable requirements that will become effective
during the permit term, a statement that the source will meet
such requirements on a timely basis. A statement that the source
will meet in a timely manner applicable requirements that become
effective during the permit term shall satisfy this provision,
unless a more detailed schedule is expressly required by the
applicable requirement.
(C) A schedule of compliance for sources that are not in
compliance with all applicable requirements at the time of permit
issuance. Such a schedule shall include a schedule of remedial
measures, including an enforceable sequence of actions with
milestones, leading to compliance with any applicable
requirements for which the source will be in noncompliance at the
time of permit issuance. This compliance schedule shall resemble
and be at least as stringent as that contained in any judicial
consent decree or administrative order to which the source is
subject. Any such schedule of compliance shall be supplemental
to, and shall not sanction noncompliance with, the applicable
requirements on which it is based.
(iv) A schedule for submission of certified progress
reports no less frequently than every 6 months for sources
required to have a schedule of compliance to remedy a violation.
(v) The compliance plan content requirements specified in
this paragraph shall apply and be included in the acid rain
portion of a compliance plan for an affected source, except as
specifically superseded by regulations promulgated under title IV
of the Act with regard to the schedule and method(s) the source
will use to achieve compliance with the acid rain emissions
limitations.
(9) Requirements for compliance certification, including
the following:
(i) A certification of compliance with all applicable
requirements by a responsible official consistent with paragraph
(d) of this section and section 114(a)(3) of the Act;
(ii) A statement of methods used for determining
compliance, including a description of monitoring, recordkeeping,
and reporting requirements and test methods;
(iii) A schedule for submission of compliance
certifications during the permit term, to be submitted no less
frequently than annually, or more frequently if specified by the
underlying applicable requirement or by the permitting authority;
and
(iv) A statement indicating the source's compliance status
with any applicable enhanced monitoring and compliance
certification requirements of the Act.
(10) The use of nationally-standardized forms for acid rain
portions of permit applications and compliance plans, as required
by regulations promulgated under title IV of the Act.
(d) Any application form, report, or compliance
certification submitted pursuant to these regulations shall
contain certification by a responsible official of truth,
accuracy, and completeness. This certification and any other
certification required under this part shall state that, based on
information and belief formed after reasonable inquiry, the
statements and information in the document are true, accurate,
and complete.
70.6 Permit content.
(a) Standard permit requirements. Each permit issued under
this part shall include the following elements:
(1) Emission limitations and standards, including those
operational requirements and limitations that assure compliance
with all applicable requirements at the time of permit issuance.
(i) The permit shall specify and reference the origin of
and authority for each term or condition, and identify any
difference in form as compared to the applicable requirement upon
which the term or condition is based.
(ii) The permit shall state that, where an applicable
requirement of the Act is more stringent than an applicable
requirement of regulations promulgated under title IV of the Act,
both provisions shall be incorporated into the permit and shall
be enforceable by the Administrator.
(iii) If an applicable implementation plan allows a
determination of an alternative emission limit at a part 70
source, equivalent to that contained in the plan, to be made in
the permit issuance, renewal, or significant modification
process, and the State elects to use such process, any permit
containing such equivalency determination shall contain
provisions to ensure that any resulting emissions limit has been
demonstrated to be quantifiable, accountable, enforceable, and
based on replicable procedures.
(2) Permit duration. The permitting authority shall issue
permits for a fixed term of 5 years in the case of affected
sources, and for a term not to exceed 5 years in the case of all
other sources. Notwithstanding this requirement, the permitting
authority shall issue permits for solid waste incineration units
combusting municipal waste subject to standards under section
129(e) of the Act for a period not to exceed 12 years and shall
review such permits at least every 5 years.
(3) Monitoring and related recordkeeping and reporting
requirements. (i) Each permit shall contain the following
requirements with respect to monitoring:
(A) All emissions monitoring and analysis procedures or
test methods required under the applicable requirements,
including any procedures and methods promulgated pursuant to
sections 504(b) or 114(a)(3) of the Act;
(B) Where the applicable requirement does not require
periodic testing or instrumental or noninstrumental monitoring
(which may consist of recordkeeping designed to serve as
monitoring), periodic monitoring sufficient to yield reliable
data from the relevant time period that are representative of the
source's compliance with the permit, as reported pursuant to
paragraph (a)(3)(iii) of this section. Such monitoring
requirements shall assure use of terms, test methods, units,
averaging periods, and other statistical conventions consistent
with the applicable requirement. Recordkeeping provisions may be
sufficient to meet the requirements of this paragraph
(a)(3)(i)(B); and
(C) As necessary, requirements concerning the use,
maintenance, and, where appropriate, installation of monitoring
equipment or methods.
(ii) With respect to recordkeeping, the permit shall
incorporate all applicable recordkeeping requirements and
require, where applicable, the following:
(A) Records of required monitoring information that include
the following:
(1) The date, place as defined in the permit, and time of
sampling or measurements;
(2) The date(s) analyses were performed;
(3) The company or entity that performed the analyses;
(4) The analytical techniques or methods used;
(5) The results of such analyses; and
(6) The operating conditions as existing at the time of
sampling or measurement;
(B) Retention of records of all required monitoring data
and support information for a period of at least 5 years from the
date of the monitoring sample, measurement, report, or
application. Support information includes all calibration and
maintenance records and all original strip-chart recordings for
continuous monitoring instrumentation, and copies of all reports
required by the permit.
(iii) With respect to reporting, the permit shall
incorporate all applicable reporting requirements and require the
following:
(A) Submittal of reports of any required monitoring at
least every 6 months. All instances of deviations from permit
requirements must be clearly identified in such reports. All
required reports must be certified by a responsible official
consistent with 70.5(d).
(B) Prompt reporting of deviations from permit
requirements, including those attributable to upset conditions as
defined in the permit, the probable cause of such deviations, and
any corrective actions or preventive measures taken. The
permitting authority shall define "prompt" in relation to the
degree and type of deviation likely to occur and the applicable
requirements.
(4) A permit condition prohibiting emissions exceeding any
allowances that the source lawfully holds under title IV of the
Act or the regulations promulgated thereunder.
(i) No permit revision shall be required for increases in
emissions that are authorized by allowances acquired pursuant to
the acid rain program, provided that such increases do not
require a permit revision under any other applicable requirement.
(ii) No limit shall be placed on the number of allowances
held by the source. The source may not, however, use allowances
as a defense to noncompliance with any other applicable
requirement.
(iii) Any such allowance shall be accounted for according
to the procedures established in regulations promulgated under
title IV of the Act.
(5) A severability clause to ensure the continued validity
of the various permit requirements in the event of a challenge to
any portions of the permit.
(6) Provisions stating the following:
(i) The permittee must comply with all conditions of the
part 70 permit. Any permit noncompliance constitutes a violation
of the Act and is grounds for enforcement action; for permit
termination, revocation and reissuance, or modification; or for
denial of a permit renewal application.
(ii) Need to halt or reduce activity not a defense. It
shall not be a defense for a permittee in an enforcement action
that it would have been necessary to halt or reduce the permitted
activity in order to maintain compliance with the conditions of
this permit.
(iii) The permit may be modified, revoked, reopened, and
reissued, or terminated for cause. The filing of a request by
the permittee for a permit modification, revocation and
reissuance, or termination, or of a notification of planned
changes or anticipated noncompliance does not stay any permit
condition.
(iv) The permit does not convey any property rights of any
sort, or any exclusive privilege.
(v) The permittee shall furnish to the permitting
authority, within a reasonable time, any information that the
permitting authority may request in writing to determine whether
cause exists for modifying, revoking and reissuing, or
terminating the permit or to determine compliance with the
permit. Upon request, the permittee shall also furnish to the
permitting authority copies of records required to be kept by the
permit or, for information claimed to be confidential, the
permittee may furnish such records directly to the Administrator
along with a claim of confidentiality.
(7) A provision to ensure that a part 70 source pays fees
to the permitting authority consistent with the fee schedule
approved pursuant to 70.9.
(8) Emissions trading. A provision stating that no permit
revision shall be required, under any approved economic
incentives, marketable permits, emissions trading and other
similar programs or processes for changes that are provided for
in the permit.
(9) Terms and conditions for reasonably anticipated
operating scenarios identified by the source in its application
as approved by the permitting authority. Such terms and
conditions:
(i) Shall require the source, contemporaneously with making
a change from one operating scenario to another, to record in a
log at the permitted facility a record of the scenario under
which it is operating;
(ii) May extend the permit shield described in paragraph
(f) of this section to all terms and conditions under each such
operating scenario; and
(iii) Must ensure that the terms and conditions of each
such alternative scenario meet all applicable requirements and
the requirements of this part.
(10) Terms and conditions, if the permit applicant requests
them, for the trading of emissions increases and decreases in the
permitted facility, to the extent that the applicable
requirements provide for trading such increases and decreases
without a case-by-case approval of each emissions trade. Such
terms and conditions:
(i) Shall include all terms required under 70.6(a) and
(c) of this part to determine compliance;
(ii) May extend the permit shield described in paragraph
(f) of this section to all terms and conditions that allow such
increases and decreases in emissions; and
(iii) Must meet all applicable requirements and
requirements of this part.
(b) Federally-enforceable requirements. (1) All terms and
conditions in a part 70 permit, including any provisions designed
to limit a source's potential to emit, are enforceable by the
Administrator and citizens under the Act.
(2) Notwithstanding paragraph (b)(1) of this section, the
permitting authority shall specifically designate as not being
federally enforceable under the Act any terms and conditions
included in the permit that are not required under the Act or
under any of its applicable requirements. Terms and conditions
so designated are not subject to the requirements of 70.7,
70.8, or of this section, other than those contained in this
paragraph (b).
(c) Compliance requirements. All part 70 permits shall
contain the following elements with respect to compliance:
(1) Consistent with paragraph (a)(3) of this section,
compliance certification, testing, monitoring, reporting, and
recordkeeping requirements sufficient to assure compliance with
the terms and conditions of the permit. Any document (including
reports) required by a part 70 permit shall contain a
certification by a responsible official that meets the
requirements of 70.5(d).
(2) Inspection and entry requirements that require that,
upon presentation of credentials and other documents as may be
required by law, the permittee shall allow the permitting
authority or an authorized representative to perform the
following:
(i) Enter upon the permittee's premises where a part 70
source is located or emissions-related activity is conducted, or
where records must be kept under the conditions of the permit;
(ii) Have access to and copy, at reasonable times, any
records that must be kept under the conditions of the permit;
(iii) Inspect at reasonable times any facilities, equipment
(including monitoring and air pollution control equipment),
practices, or operations regulated or required under the permit;
and
(iv) As authorized by the Act, sample or monitor at
reasonable times substances or parameters for the purpose of
assuring compliance with the permit or applicable requirements.
(3) A schedule of compliance consistent with 70.5(c)(8).
(4) Progress reports consistent with an applicable schedule
of compliance and 70.5(c)(8) to be submitted at least
semiannually, or at a more frequent period if specified in the
applicable requirement or by the permitting authority. Such
progress reports shall contain the following:
(i) Dates for achieving the activities, milestones, or
compliance required in the schedule of compliance, and dates when
such activities, milestones or compliance were achieved; and
(ii) An explanation of why any dates in the schedule of
compliance were not or will not be met, and any preventive or
corrective measures adopted.
(5) Requirements for compliance certification with terms
and conditions contained in the permit, including emission
limitations, standards, or work practices. Permits shall include
each of the following:
(i) The frequency (not less than annually or such more
frequent periods as specified in the applicable requirement or by
the permitting authority) of submissions of compliance
certifications;
(ii) In accordance with 70.6(a)(3), a means for monitoring
the compliance of the source with its emissions limitations,
standards, and work practices;
(iii) A requirement that the compliance certification
include the following:
(A) The identification of each term or condition of the
permit that is the basis of the certification;
(B) The compliance status;
(C) Whether compliance was continuous or intermittent;
(D) The method(s) used for determining the compliance
status of the source, currently and over the reporting period
consistent with paragraph (a)(3) of this section; and
(E) Such other facts as the permitting authority may
require to determine the compliance status of the source;
(iv) A requirement that all compliance certifications be
submitted to the Administrator as well as to the permitting
authority; and
(v) Such additional requirements as may be specified
pursuant to sections 114(a)(3) and 504(b) of the Act.
(6) Such other provisions as the permitting authority may
require.
(d) General permits. (1) The permitting authority may,
after notice and opportunity for public participation provided
under 70.7(h), issue a general permit covering numerous similar
sources. Any general permit shall comply with all requirements
applicable to other part 70 permits and shall identify criteria
by which sources may qualify for the general permit. To sources
that qualify, the permitting authority shall grant the conditions
and terms of the general permit. Notwithstanding the shield
provisions of paragraph (f) of this section, the source shall be
subject to enforcement action for operation without a part 70
permit if the source is later determined not to qualify for the
conditions and terms of the general permit. General permits
shall not be authorized for affected sources under the acid rain
program unless otherwise provided in regulations promulgated
under title IV of the Act.
(2) Part 70 sources that would qualify for a general permit
must apply to the permitting authority for coverage under the
terms of the general permit or must apply for a part 70 permit
consistent with 70.5. The permitting authority may, in the
general permit, provide for applications which deviate from the
requirements of 70.5, provided that such applications meet the
requirements of title V of the Act, and include all information
necessary to determine qualification for, and to assure
compliance with, the general permit. Without repeating the
public participation procedures required under 70.7(h), the
permitting authority may grant a source's request for
authorization to operate under a general permit, but such a grant
shall not be a final permit action for purposes of judicial
review.
(e) Temporary sources. The permitting authority may issue
a single permit authorizing emissions from similar operations by
the same source owner or operator at multiple temporary
locations. The operation must be temporary and involve at least
one change of location during the term of the permit. No
affected source shall be permitted as a temporary source.
Permits for temporary sources shall include the following:
(1) Conditions that will assure compliance with all
applicable requirements at all authorized locations;
(2) Requirements that the owner or operator notify the
permitting authority at least 10 days in advance of each change
in location; and
(3) Conditions that assure compliance with all other
provisions of this section.
(f) Permit shield. (1) Except as provided in this part,
the permitting authority may expressly include in a part 70
permit a provision stating that compliance with the conditions of
the permit shall be deemed compliance with any applicable
requirements as of the date of permit issuance, provided that:
(i) Such applicable requirements are included and are
specifically identified in the permit; or
(ii) The permitting authority, in acting on the permit
application or revision, determines in writing that other
requirements specifically identified are not applicable to the
source, and the permit includes the determination or a concise
summary thereof.
(2) A part 70 permit that does not expressly state that a
permit shield exists shall be presumed not to provide such a
shield.
(3) Nothing in this paragraph or in any part 70 permit
shall alter or affect the following:
(i) The provisions of section 303 of the Act (emergency
orders), including the authority of the Administrator under that
section;
(ii) The liability of an owner or operator of a source for
any violation of applicable requirements prior to or at the time
of permit issuance;
(iii) The applicable requirements of the acid rain program,
consistent with section 408(a) of the Act; or
(iv) The ability of EPA to obtain information from a source
pursuant to section 114 of the Act.
(g) Emergency provision.--(1) Definition. An "emergency"
means any situation arising from sudden and reasonably
unforeseeable events beyond the control of the source, including
acts of God, which situation requires immediate corrective action
to restore normal operation, and that causes the source to exceed
a technology-based emission limitation under the permit, due to
unavoidable increases in emissions attributable to the emergency.
An emergency shall not include noncompliance to the extent caused
by improperly designed equipment, lack of preventative
maintenance, careless or improper operation, or operator error.
(2) Effect of an emergency. An emergency constitutes an
affirmative defense to an action brought for noncompliance with
such technology-based emission limitations if the conditions of
paragraph (g)(3) of this section are met.
(3) The affirmative defense of emergency shall be
demonstrated through properly signed, contemporaneous operating
logs, or other relevant evidence that:
(i) An emergency occurred and that the permittee can
identify the cause(s) of the emergency;
(ii) The permitted facility was at the time being properly
operated;
(iii) During the period of the emergency the permittee took
all reasonable steps to minimize levels of emissions that
exceeded the emission standards, or other requirements in the
permit; and
(iv) The permittee submitted notice of the emergency to the
permitting authority within 2 working days of the time when
emission limitations were exceeded due to the emergency. This
notice fulfills the requirement of paragraph (a)(3)(iv)(B) of
this section. This notice must contain a description of the
emergency, any steps taken to mitigate emissions, and corrective
actions taken.
(4) In any enforcement proceeding, the permittee seeking to
establish the occurrence of an emergency has the burden of proof.
(5) This provision is in addition to any emergency or upset
provision contained in any applicable requirement.
70.7 Permit issuance, renewal, reopenings, and revisions.
(a) Action on application. (1) A permit, permit
modification, or renewal may be issued only if all of the
following conditions have been met:
(i) The permitting authority has received a complete
application for a permit, permit modification, or permit renewal,
except that a complete application need not be received before
issuance of a general permit under 70.6(d);
(ii) Except for modifications qualifying for minor permit
modification procedures under 70.7(e)(2) and (3), the
permitting authority has complied with the requirements for
public participation under paragraph (h) of this section;
(iii) The permitting authority has complied with the
requirements for notifying and responding to affected States
under 70.8(b);
(iv) The conditions of the permit provide for compliance
with all applicable requirements and the requirements of this
part; and
(v) The Administrator has received a copy of the proposed
permit and any notices required under 70.8(a) and 70.8(b), and
has not objected to issuance of the permit under 70.8(c) within
the time period specified therein.
(2) Except as provided under the initial transition plan
provided for under 70.4(b)(11) or under regulations promulgated
under title IV or title V of the Act for the permitting of
affected sources under the acid rain program, the program shall
provide that the permitting authority take final action on each
permit application (including a request for permit modification
or renewal) within 18 months, or such lesser time approved by the
Administrator, after receiving a complete application.
(3) The program shall also contain reasonable procedures to
ensure priority is given to taking action on applications for
construction or modification under title I, parts C and D of the
Act.
(4) The permitting authority shall promptly provide notice
to the applicant of whether the application is complete. Unless
the permitting authority requests additional information or
otherwise notifies the applicant of incompleteness within 60 days
of receipt of an application, the application shall be deemed
complete. For modifications processed through minor permit
modification procedures, such as those in paragraphs (e)(2) and
(3) of this section, the State program need not require a
completeness determination.
(5) The permitting authority shall provide a statement that
sets forth the legal and factual basis for the draft permit
conditions (including references to the applicable statutory or
regulatory provisions). The permitting authority shall send this
statement to EPA and to any other person who requests it.
(6) The submittal of a complete application shall not
affect the requirement that any source have a preconstruction
permit under title I of the Act.
(b) Requirement for a permit. Except as provided in the
following sentence, 70.4(b)(12)(i), and paragraphs 70.7(e)(2)(v)
and (3)(v) of this section, no part 70 source may operate after
the time that it is required to submit a timely and complete
application under an approved permit program, except in
compliance with a permit issued under a part 70 program. The
program shall provide that, if a part 70 source submits a timely
and complete application for permit issuance (including for
renewal), the source's failure to have a part 70 permit is not a
violation of this part until the permitting authority takes final
action on the permit application, except as noted in this
section. This protection shall cease to apply if, subsequent to
the completeness determination made pursuant to paragraph (a)(4)
of this section, and as required by 70.5(a)(2), the applicant
fails to submit by the deadline specified in writing by the
permitting authority any additional information identified as
being needed to process the application.
(c) Permit renewal and expiration. (1) The program shall
provide that:
(i) Permits being renewed are subject to the same
procedural requirements, including those for public
participation, affected State and EPA review, that apply to
initial permit issuance; and
(ii) Permit expiration terminates the source's right to
operate unless a timely and complete renewal application has been
submitted consistent with paragraph (b) of this section and
70.5(a)(1)(iii).
(2) If the permitting authority fails to act in a timely
way on a permit renewal, EPA may invoke its authority under
section 505(e) of the Act to terminate or revoke and reissue the
permit.
(d) Administrative permit amendments. (1) An
"administrative permit amendment" is a permit revision that:
(i) Corrects typographical errors;
(ii) Identifies a change in the name, address, or phone
number of any person identified in the permit, or provides a
similar minor administrative change at the source;
(iii) Requires more frequent monitoring or reporting by the
permittee;
(iv) Allows for a change in ownership or operational
control of a source where the permitting authority determines
that no other change in the permit is necessary, provided that a
written agreement containing a specific date for transfer of
permit responsibility, coverage, and liability between the
current and new permittee has been submitted to the permitting
authority;
(v) Incorporates into the part 70 permit the requirements
from preconstruction review permits authorized under an EPA-
approved program, provided that such a program meets procedural
requirements substantially equivalent to the requirements of
70.7 and 70.8 that would be applicable to the change if it were
subject to review as a permit modification, and compliance
requirements substantially equivalent to those contained in
70.6; or
(vi) Incorporates any other type of change which the
Administrator has determined as part of the approved part 70
program to be similar to those in paragraphs (d)(1)(i) through
(iv) of this section.
(2) Administrative permit amendments for purposes of the
acid rain portion of the permit shall be governed by regulations
promulgated under title IV of the Act.
(3) Administrative permit amendment procedures. An
administrative permit amendment may be made by the permitting
authority consistent with the following:
(i) The permitting authority shall take no more than
60 days from receipt of a request for an administrative permit
amendment to take final action on such request, and may
incorporate such changes without providing notice to the public
or affected States provided that it designates any such permit
revisions as having been made pursuant to this paragraph.
(ii) The permitting authority shall submit a copy of the
revised permit to the Administrator.
(iii) The source may implement the changes addressed in the
request for an administrative amendment immediately upon
submittal of the request.
(4) The permitting authority may, upon taking final action
granting a request for an administrative permit amendment, allow
coverage by the permit shield in 70.6(f) for administrative
permit amendments made pursuant to paragraph (d)(1)(v) of this
section which meet the relevant requirements of 70.6, 70.7, and
70.8 for significant permit modifications.
(e) Permit modification. A permit modification is any
revision to a part 70 permit that cannot be accomplished under
the program's provisions for administrative permit amendments
under paragraph (d) of this section. A permit modification for
purposes of the acid rain portion of the permit shall be governed
by regulations promulgated under title IV of the Act.
(1) Program description. The State shall provide adequate,
streamlined, and reasonable procedures for expeditiously
processing permit modifications. The State may meet this
obligation by adopting the procedures set forth below or ones
substantially equivalent. The State may also develop different
procedures for different types of modifications depending on the
significance and complexity of the requested modification, but
EPA will not approve a part 70 program that has modification
procedures that provide for less permitting authority, EPA, or
affected State review or public participation than is provided
for in this part.
(2) Minor permit modification procedures.--(i) Criteria.--
(A) Minor permit modification procedures may be used only for
those permit modifications that:
(1) Do not violate any applicable requirement;
(2) Do not involve significant changes to existing
monitoring, reporting, or recordkeeping requirements in the
permit;
(3) Do not require or change a case-by-case determination
of an emission limitation or other standard, or a source-specific
determination for temporary sources of ambient impacts, or a
visibility or increment analysis;
(4) Do not seek to establish or change a permit term or
condition for which there is no corresponding underlying
applicable requirement and that the source has assumed to avoid
an applicable requirement to which the source would otherwise be
subject. Such terms and conditions include:
(A) A federally enforceable emissions cap assumed to avoid
classification as a modification under any provision of title I;
and
(B) An alternative emissions limit approved pursuant to
regulations promulgated under section 112(i)(5) of the Act;
(5) Are not modifications under any provision of title I of
the Act; and
(6) Are not required by the State program to be processed
as a significant modification.
(B) Notwithstanding paragraphs (e)(2)(i)(A) and (e)(3)(i)
of this section, minor permit modification procedures may be used
for permit modifications involving the use of economic
incentives, marketable permits, emissions trading, and other
similar approaches, to the extent that such minor permit
modification procedures are explicitly provided for in an
applicable implementation plan or in applicable requirements
promulgated by EPA.
(ii) Application. An application requesting the use of
minor permit modification procedures shall meet the requirements
of 70.5(c) and shall include the following:
(A) A description of the change, the emissions resulting
from the change, and any new applicable requirements that will
apply if the change occurs;
(B) The source's suggested draft permit;
(C) Certification by a responsible official, consistent
with 70.5(d), that the proposed modification meets the criteria
for use of minor permit modification procedures and a request
that such procedures be used; and
(D) Completed forms for the permitting authority to use to
notify the Administrator and affected States as required under
70.8.
(iii) EPA and affected State notification. Within 5
working days of receipt of a complete permit modification
application, the permitting authority shall meet its obligation
under 70.8(a)(1) and (b)(1) to notify the Administrator and
affected States of the requested permit modification. The
permitting authority promptly shall send any notice required
under 70.8(b)(2) to the Administrator.
(iv) Timetable for issuance. The permitting authority may
not issue a final permit modification until after EPA's 45-day
review period or until EPA has notified the permitting authority
that EPA will not object to issuance of the permit modification,
whichever is first, although the permitting authority can approve
the permit modification prior to that time. Within 90 days of
the permitting authority's receipt of an application under minor
permit modification procedures or 15 days after the end of the
Administrator's 45-day review period under 70.8(c), whichever is
later, the permitting authority shall:
(A) Issue the permit modification as proposed;
(B) Deny the permit modification application;
(C) Determine that the requested modification does not meet
the minor permit modification criteria and should be reviewed
under the significant modification procedures; or
(D) Revise the draft permit modification and transmit to
the Administrator the new proposed permit modification as
required by 70.8(a).
(v) Source's ability to make change. The State program may
allow the source to make the change proposed in its minor permit
modification application immediately after it files such
application. After the source makes the change allowed by the
preceding sentence, and until the permitting authority takes any
of the actions specified in paragraphs (e)(2)(v)(A) through (C)
of this section, the source must comply with both the applicable
requirements governing the change and the proposed permit terms
and conditions. During this time period, the source need not
comply with the existing permit terms and conditions it seeks to
modify. However, if the source fails to comply with its proposed
permit terms and conditions during this time period, the existing
permit terms and conditions it seeks to modify may be enforced
against it.
(vi) Permit shield. The permit shield under 70.6(f) may
not extend to minor permit modifications.
(3) Group processing of minor permit modifications.
Consistent with this paragraph, the permitting authority may
modify the procedure outlined in paragraph (e)(2) of this section
to process groups of a source's applications for certain
modifications eligible for minor permit modification processing.
(i) Criteria. Group processing of modifications may be
used only for those permit modifications:
(A) That meet the criteria for minor permit modification
procedures under paragraph (e)(2)(i)(A) of this section; and
(B) That collectively are below the threshold level
approved by the Administrator as part of the approved program.
Unless the State sets an alternative threshold consistent with
the criteria set forth in paragraphs (e)(3)(i)(B)(1) and (2),
this threshold shall be 10 percent of the emissions allowed by
the permit for the emissions unit for which the change is
requested, 20 percent of the applicable definition of major
source in 70.2, or 5 tons per year, whichever is least. In
establishing any alternative threshold, the State shall consider:
(1) Whether group processing of amounts below the threshold
levels reasonably alleviates severe administrative burdens that
would be imposed by immediate permit modification review, and
(2) Whether individual processing of changes below the
threshold levels would result in trivial environmental benefits.
(ii) Application. An application requesting the use of
group processing procedures shall meet the requirements of
70.5(c) and shall include the following:
(A) A description of the change, the emissions resulting
from the change, and any new applicable requirements that will
apply if the change occurs.
(B) The source's suggested draft permit.
(C) Certification by a responsible official, consistent
with 70.5(d), that the proposed modification meets the criteria
for use of group processing procedures and a request that such
procedures be used.
(D) A list of the source's other pending applications
awaiting group processing, and a determination of whether the
requested modification, aggregated with these other applications,
equals or exceeds the threshold set under paragraph (e)(3)(i)(B)
of this section.
(E) Certification, consistent with 70.5(d), that the
source has notified EPA of the proposed modification. Such
notification need only contain a brief description of the
requested modification.
(F) Completed forms for the permitting authority to use to
notify the Administrator and affected States as required under
70.8.
(iii) EPA and affected State notification. On a quarterly
basis or within 5 business days of receipt of an application
demonstrating that the aggregate of a source's pending
applications equals or exceeds the threshold level set under
paragraph (e)(3)(i)(B) of this section, whichever is earlier, the
permitting authority promptly shall meet its obligation under
70.8(a)(1) and (b)(1) to notify the Administrator and affected
States of the requested permit modifications. The permitting
authority shall send any notice required under 70.8(b)(2) to the
Administrator.
(iv) Timetable for issuance. The provisions of paragraph
(e)(2)(iv) of this section shall apply to modifications eligible
for group processing, except that the permitting authority shall
take one of the actions specified in paragraphs (e)(2)(iv)(A)
through (D) of this section within 180 days of receipt of the
application or 15 days after the end of the Administrator's 45-
day review period under 70.8(c), whichever is later.
(v) Source's ability to make change. The provisions of
paragraph (e)(2)(v) of this section shall apply to modifications
eligible for group processing.
(vi) Permit shield. The provisions of paragraph (e)(2)(vi)
of this section shall also apply to modifications eligible for
group processing.
(4) Significant modification procedures.--(i) Criteria.
Significant modification procedures shall be used for
applications requesting permit modifications that do not qualify
as minor permit modifications or as administrative amendments.
The State program shall contain criteria for determining whether
a change is significant. At a minimum, every significant change
in existing monitoring permit terms or conditions and every
relaxation of reporting or recordkeeping permit terms or
conditions shall be considered significant. Nothing herein shall
be construed to preclude the permittee from making changes
consistent with this part that would render existing permit
compliance terms and conditions irrelevant.
(ii) The State program shall provide that significant
permit modifications shall meet all requirements of this part,
including those for applications, public participation, review by
affected States, and review by EPA, as they apply to permit
issuance and permit renewal. The permitting authority shall
design and implement this review process to complete review on
the majority of significant permit modifications within 9 months
after receipt of a complete application.
(f) Reopening for cause. (1) Each issued permit shall
include provisions specifying the conditions under which the
permit will be reopened prior to the expiration of the permit. A
permit shall be reopened and revised under any of the following
circumstances:
(i) Additional applicable requirements under the Act become
applicable to a major part 70 source with a remaining permit term
of 3 or more years. Such a reopening shall be completed not
later than 18 months after promulgation of the applicable
requirement. No such reopening is required if the effective date
of the requirement is later than the date on which the permit is
due to expire, unless the original permit or any of its terms and
conditions has been extended pursuant to 70.4(b)(10)(i) or
(ii).
(ii) Additional requirements (including excess emissions
requirements) become applicable to an affected source under the
acid rain program. Upon approval by the Administrator, excess
emissions offset plans shall be deemed to be incorporated into
the permit.
(iii) The permitting authority or EPA determines that the
permit contains a material mistake or that inaccurate statements
were made in establishing the emissions standards or other terms
or conditions of the permit.
(iv) The Administrator or the permitting authority
determines that the permit must be revised or revoked to assure
compliance with the applicable requirements.
(2) Proceedings to reopen and issue a permit shall follow
the same procedures as apply to initial permit issuance and shall
affect only those parts of the permit for which cause to reopen
exists. Such reopening shall be made as expeditiously as
practicable.
(3) Reopenings under paragraph (f)(1) of this section shall
not be initiated before a notice of such intent is provided to
the part 70 source by the permitting authority at least 30 days
in advance of the date that the permit is to be reopened, except
that the permitting authority may provide a shorter time period
in the case of an emergency.
(g) Reopenings for cause by EPA. (1) If the Administrator
finds that cause exists to terminate, modify, or revoke and
reissue a permit pursuant to paragraph (f) of this section, the
Administrator will notify the permitting authority and the
permittee of such finding in writing.
(2) The permitting authority shall, within 90 days after
receipt of such notification, forward to EPA a proposed
determination of termination, modification, or revocation and
reissuance, as appropriate. The Administrator may extend this
90-day period for an additional 90 days if he finds that a new or
revised permit application is necessary or that the permitting
authority must require the permittee to submit additional
information.
(3) The Administrator will review the proposed
determination from the permitting authority within 90 days of
receipt.
(4) The permitting authority shall have 90 days from receipt
of an EPA objection to resolve any objection that EPA makes and
to terminate, modify, or revoke and reissue the permit in
accordance with the Administrator's objection.
(5) If the permitting authority fails to submit a proposed
determination pursuant to paragraph (g)(2) of this section or
fails to resolve any objection pursuant to paragraph (g)(4) of
this section, the Administrator will terminate, modify, or revoke
and reissue the permit after taking the following actions:
(i) Providing at least 30 days' notice to the permittee in
writing of the reasons for any such action. This notice may be
given during the procedures in paragraphs (g)(1) through (4) of
this section.
(ii) Providing the permittee an opportunity for comment on
the Administrator's proposed action and an opportunity for a
hearing.
(h) Public participation. Except for modifications
qualifying for minor permit modification procedures, all permit
proceedings, including initial permit issuance, significant
modifications, and renewals, shall provide adequate procedures
for public notice including offering an opportunity for public
comment and a hearing on the draft permit. These procedures
shall include the following:
(1) Notice shall be given: by publication in a newspaper
of general circulation in the area where the source is located or
in a State publication designed to give general public notice; to
persons on a mailing list developed by the permitting authority,
including those who request in writing to be on the list; and by
other means if necessary to assure adequate notice to the
affected public;
(2) The notice shall identify the affected facility; the
name and address of the permittee; the name and address of the
permitting authority processing the permit; the activity or
activities involved in the permit action; the emissions change
involved in any permit modification; the name, address, and
telephone number of a person from whom interested persons may
obtain additional information, including copies of the permit
draft, the application, all relevant supporting materials,
including those set forth in 70.4(b)(3)(viii), and all other
materials available to the permitting authority that are relevant
to the permit decision; a brief description of the comment
procedures required by this part; and the time and place of any
hearing that may be held, including a statement of procedures to
request a hearing (unless a hearing has already been scheduled);
(3) The permitting authority shall provide such
notice and opportunity for participation by affected States as is
provided for by 70.8;
(4) Timing. The permitting authority shall provide at least
30 days for public comment and shall give notice of any public
hearing at least 30 days in advance of the hearing.
(5) The permitting authority shall keep a record of the
commenters and also of the issues raised during the public
participation process so that the Administrator may fulfill his
obligation under section 505(b)(2) of the Act to determine
whether a citizen petition may be granted, and such records shall
be available to the public.
70.8 Permit review by EPA and affected States.
(a) Transmission of information to the Administrator. (1)
The permit program shall require that the permitting authority
provide to the Administrator a copy of each permit application
(including any application for permit modification), each
proposed permit, and each final part 70 permit. The applicant
may be required by the permitting authority to provide a copy of
the permit application (including the compliance plan) directly
to the Administrator. Upon agreement with the Administrator, the
permitting authority may submit to the Administrator a permit
application summary form and any relevant portion of the permit
application and compliance plan, in place of the complete permit
application and compliance plan. To the extent practicable, the
preceding information shall be provided in computer-readable
format compatible with EPA's national database management system.
(2) The Administrator may waive the requirements of
paragraphs (a)(1) and (b)(1) of this section for any category of
sources (including any class, type, or size within such category)
other than major sources according to the following:
(i) By regulation for a category of sources nationwide, or
(ii) At the time of approval of a State program for a
category of sources covered by an individual permitting program.
(3) Each State permitting authority shall keep for 5 years
such records and submit to the Administrator such information as
the Administrator may reasonably require to ascertain whether the
State program complies with the requirements of the Act or of
this part.
(b) Review by affected States. (1) The permit program
shall provide that the permitting authority give notice of each
draft permit to any affected State on or before the time that the
permitting authority provides this notice to the public under
70.7(h), except to the extent 70.7(e)(2) or (3) requires the
timing of the notice to be different.
(2) The permit program shall provide that the permitting
authority, as part of the submittal of the proposed permit to the
Administrator (or as soon as possible after the submittal for
minor permit modification procedures allowed under 70.7(e)(2) or
(3)), shall notify the Administrator and any affected State in
writing of any refusal by the permitting authority to accept all
recommendations for the proposed permit that the affected State
submitted during the public or affected State review period. The
notice shall include the permitting authority's reasons for not
accepting any such recommendation. The permitting authority is
not required to accept recommendations that are not based on
applicable requirements or the requirements of this part.
(c) EPA objection. (1) The Administrator will object to
the issuance of any proposed permit determined by the
Administrator not to be in compliance with applicable
requirements or requirements under this part. No permit for
which an application must be transmitted to the Administrator
under paragraph (a) of this section shall be issued if the
Administrator objects to its issuance in writing within 45 days
of receipt of the proposed permit and all necessary supporting
information.
(2) Any EPA objection under paragraph (c)(1) of this
section shall include a statement of the Administrator's reasons
for objection and a description of the terms and conditions that
the permit must include to respond to the objections. The
Administrator will provide the permit applicant a copy of the
objection.
(3) Failure of the permitting authority to do any of the
following also shall constitute grounds for an objection:
(i) Comply with paragraphs (a) or (b) of this section;
(ii) Submit any information necessary to review adequately
the proposed permit; or
(iii) Process the permit under the procedures approved to
meet 70.7(h) except for minor permit modifications.
(4) If the permitting authority fails, within 90 days after
the date of an objection under paragraph (c)(1) of this section,
to revise and submit a proposed permit in response to the
objection, the Administrator will issue or deny the permit in
accordance with the requirements of the Federal program
promulgated under title V of this Act.
(d) Public petitions to the Administrator. The program
shall provide that, if the Administrator does not object in
writing under paragraph (c) of this section, any person may
petition the Administrator within 60 days after the expiration of
the Administrator's 45-day review period to make such objection.
Any such petition shall be based only on objections to the permit
that were raised with reasonable specificity during the public
comment period provided for in 70.7(h), unless the petitioner
demonstrates that it was impracticable to raise such objections
within such period, or unless the grounds for such objection
arose after such period. If the Administrator objects to the
permit as a result of a petition filed under this paragraph, the
permitting authority shall not issue the permit until EPA's
objection has been resolved, except that a petition for review
does not stay the effectiveness of a permit or its requirements
if the permit was issued after the end of the 45-day review
period and prior to an EPA objection. If the permitting
authority has issued a permit prior to receipt of an EPA
objection under this paragraph, the Administrator will modify,
terminate, or revoke such permit, and shall do so consistent with
the procedures in 70.7(g)(4) or (5)(i) and (ii) except in
unusual circumstances, and the permitting authority may
thereafter issue only a revised permit that satisfies EPA's
objection. In any case, the source will not be in violation of
the requirement to have submitted a timely and complete
application.
(e) Prohibition on default issuance. Consistent with
70.4(b)(3)(ix), for the purposes of Federal law and title V of
the Act, no State program may provide that a part 70 permit
(including a permit renewal or modification) will issue until
affected States and EPA have had an opportunity to review the
proposed permit as required under this section. When the program
is submitted for EPA review, the State Attorney General or
independent legal counsel shall certify that no applicable
provision of State law requires that a part 70 permit or renewal
be issued after a certain time if the permitting authority has
failed to take action on the application (or includes any other
similar provision providing for default issuance of a permit),
unless EPA has waived such review for EPA and affected States.
70.9 Fee determination and certification.
(a) Fee Requirement. The State program shall require that
the owners or operators of part 70 sources pay annual fees, or
the equivalent over some other period, that are sufficient to
cover the permit program costs and shall ensure that any fee
required by this section will be used solely for permit program
costs.
(b) Fee schedule adequacy. (1) The State program shall
establish a fee schedule that results in the collection and
retention of revenues sufficient to cover the permit program
costs. These costs include, but are not limited to, the costs of
the following activities as they relate to the operating permit
program for stationary sources:
(i) Preparing generally applicable regulations or guidance
regarding the permit program or its implementation or
enforcement;
(ii) Reviewing and acting on any application for a permit,
permit revision, or permit renewal, including the development of
an applicable requirement as part of the processing of a permit,
or permit revision or renewal;
(iii) General administrative costs of running the permit
program, including the supporting and tracking of permit
applications, compliance certification, and related data entry;
(iv) Implementing and enforcing the terms of any part 70
permit (not including any court costs or other costs associated
with an enforcement action), including adequate resources to
determine which sources are subject to the program;
(v) Emissions and ambient monitoring;
(vi) Modeling, analyses, or demonstrations;
(vii) Preparing inventories and tracking emissions; and
(viii) Providing direct and indirect support to sources
under the Small Business Stationary Source Technical and
Environmental Compliance Assistance Program contained in
section 507 of the Act in determining and meeting their
obligations under this part.
(2)(i) The Administrator will presume that the fee schedule
meets the requirements of paragraph (b)(1) of this section if it
would result in the collection and retention of an amount not
less than $25 per year (as adjusted pursuant to the criteria set
forth in paragraph (b)(2)(iv) of this section) times the total
tons of the actual emissions of each regulated pollutant (for
presumptive fee calculation) emitted from part 70 sources.
(ii) The State may exclude from such calculation:
(A) The actual emissions of sources for which no fee is
required under paragraph (b)(4) of this section;
(B) The amount of a part 70 source's actual emissions of
each regulated pollutant (for presumptive fee calculation) that
the source emits in excess of four thousand (4,000) tpy;
(C) A part 70 source's actual emissions of any regulated
pollutant (for presumptive fee calculation), the emissions of
which are already included in the minimum fees calculation; or
(D) The insignificant quantities of actual emissions not
required in a permit application pursuant to 70.5(c).
(iii) "Actual emissions" means the actual rate of emissions
in tons per year of any regulated pollutant (for presumptive fee
calculation) emitted from a part 70 source over the preceding
calendar year or any other period determined by the permitting
authority to be representative of normal source operation and
consistent with the fee schedule approved pursuant to this
section. Actual emissions shall be calculated using the unit's
actual operating hours, production rates, and in-place control
equipment, types of materials processed, stored, or combusted
during the preceding calendar year or such other time period
established by the permitting authority pursuant to the preceding
sentence.
(iv) The program shall provide that the $25 per ton per
year used to calculate the presumptive minimum amount to be
collected by the fee schedule, as described in paragraph
(b)(2)(i) of this section, shall be increased each year by the
percentage, if any, by which the Consumer Price Index for the
most recent calendar year ending before the beginning of such
year exceeds the Consumer Price Index for the calendar year 1989.
(A) The Consumer Price Index for any calendar year is the
average of the Consumer Price Index for all-urban consumers
published by the Department of Labor, as of the close of the 12-
month period ending on August 31 of each calendar year.
(B) The revision of the Consumer Price Index which is most
consistent with the Consumer Price Index for the calendar year
1989 shall be used.
(3) The State program's fee schedule may include emissions
fees, application fees, service-based fees or other types of
fees, or any combination thereof, to meet the requirements of
paragraph (b)(1) or (b)(2) of this section. Nothing in the
provisions of this section shall require a permitting authority
to calculate fees on any particular basis or in the same manner
for all part 70 sources, all classes or categories of part 70
sources, or all regulated air pollutants, provided that the
permitting authority collects a total amount of fees sufficient
to meet the program support requirements of paragraph (b)(1) of
this section.
(4) Notwithstanding any other provision of this section,
during the years 1995 through 1999 inclusive, no fee for purposes
of title V shall be required to be paid with respect to emissions
from any affected unit under section 404 of the Act.
(5) The State shall provide a detailed accounting that its
fee schedule meets the requirements of paragraph (b)(1) of this
section if:
(i) The State sets a fee schedule that would result in the
collection and retention of an amount less than that presumed to
be adequate under paragraph (b)(2) of this section; or
(ii) The Administrator determines, based on comments
rebutting the presumption in paragraph (b)(2) of this section or
on his own initiative, that there are serious questions regarding
whether the fee schedule is sufficient to cover the permit
program costs.
(c) Fee demonstration. The permitting authority shall
provide a demonstration that the fee schedule selected will
result in the collection and retention of fees in an amount
sufficient to meet the requirements of this section.
(d) Use of required fee revenue. The Administrator will
not approve a demonstration as meeting the requirements of this
section, unless it contains an initial accounting (and periodic
updates as required by the Administrator) of how required fee
revenues are used solely to cover the costs of meeting the
various functions of the permitting program.
70.10 Federal oversight and sanctions.
(a) Failure to submit an approvable program. (1) If a
State fails to submit a fully-approvable whole part 70 program,
or a required revision thereto, in conformance with the
provisions of 70.4, or if an interim approval expires and the
Administrator has not approved a whole part 70 program:
(A) At any time the Administrator may apply any one of the
sanctions specified in section 179(b) of the Act; and
(B) Eighteen months after the date required for submittal
or the date of disapproval by the Administrator, the
Administrator will apply such sanctions in the same manner and
with the same conditions as are applicable in the case of a
determination, disapproval, or finding under section 179(a) of
the Act.
(2) If full approval of a whole part 70 program has not
taken place within 2 years after the date required for such
submission, the Administrator will promulgate, administer, and
enforce a whole program or a partial program as appropriate for
such State.
(b) State failure to administer or enforce. Any State
program approved by the Administrator shall at all times be
conducted in accordance with the requirements of this part and of
any agreement between the State and the Administrator concerning
operation of the program.
(1) Whenever the Administrator makes a determination that a
permitting authority is not adequately administering or enforcing
a part 70 program, or any portion thereof, the Administrator will
notify the permitting authority of the determination and the
reasons therefore. The Administrator will publish such notice in
the Federal Register.
(2) If, 90 days after issuing the notice under paragraph
(c)(1) of this section, the permitting authority fails to take
significant action to assure adequate administration and
enforcement of the program, the Administrator may take one or
more of the following actions:
(i) Withdraw approval of the program or portion thereof
using procedures consistent with 70.4(e);
(ii) Apply any of the sanctions specified in section 179(b)
of the Act;
(iii) Promulgate, administer, or enforce a Federal program
under title V of the Act.
(3) Whenever the Administrator has made the finding and
issued the notice under paragraph (c)(1) of this section, the
Administrator will apply the sanctions under section 179(b) of
the Act 18 months after that notice. These sanctions will be
applied in the same manner and subject to the same deadlines and
other conditions as are applicable in the case of a
determination, disapproval, or finding under section 179(a) of
the Act.
(4) Whenever the Administrator has made the finding and
issued the notice under paragraph (c)(1) of this section, the
Administrator will, unless the State has corrected such
deficiency within 18 months after the date of such finding,
promulgate, administer, and enforce, a whole or partial program 2
years after the date of such finding.
(5) Nothing in this section shall limit the Administrator's
authority to take any enforcement action against a source for
violations of the Act or of a permit issued under rules adopted
pursuant to this section in a State that has been delegated
responsibility by EPA to implement a Federal program promulgated
under title V of the Act.
(6) Where a whole State program consists of an aggregate of
partial programs, and one or more partial programs fails to be
fully approved or implemented, the Administrator may apply
sanctions only in those areas for which the State failed to
submit or implement an approvable program.
(c) Criteria for withdrawal of State programs. (1) The
Administrator may, in accordance with the procedures of paragraph
(c) of this section, withdraw program approval in whole or in
part whenever the approved program no longer complies with the
requirements of this part, and the permitting authority fails to
take corrective action. Such circumstances, in whole or in part,
include any of the following:
(i) Where the permitting authority's legal authority no
longer meets the requirements of this part, including the
following:
(A) The permitting authority fails to promulgate or enact
new authorities when necessary; or
(B) The State legislature or a court strikes down or limits
State authorities to administer or enforce the State program.
(ii) Where the operation of the State program fails to
comply with the requirements of this part, including the
following:
(A) Failure to exercise control over activities required to
be regulated under this part, including failure to issue permits;
(B) Repeated issuance of permits that do not conform to the
requirements of this part;
(C) Failure to comply with the public participation
requirements of 70.7(h);
(D) Failure to collect, retain, or allocate fee revenue
consistent with 70.9; or
(E) Failure in a timely way to act on any applications for
permits including renewals and revisions.
(iii) Where the State fails to enforce the part 70 program
consistent with the requirements of this part, including the
following:
(A) Failure to act on violations of permits or other
program requirements;
(B) Failure to seek adequate enforcement penalties and
fines and collect all assessed penalties and fines; or
(C) Failure to inspect and monitor activities subject to
regulation.
(d) Federal collection of fees. If the Administrator
determines that the fee provisions of a part 70 program do not
meet the requirements of 70.9, or if the Administrator makes a
determination under paragraph (c)(1) of this section that the
permitting authority is not adequately administering or enforcing
an approved fee program, the Administrator may, in addition to
taking any other action authorized under title V of the Act,
collect reasonable fees to cover the Administrator's costs of
administering the provisions of the permitting program
promulgated by the Administrator, without regard to the
requirements of 70.9.
70.11 Requirements for enforcement authority.
All programs to be approved under this part must contain the
following provisions:
(a) Enforcement authority. Any agency administering a
program shall have the following enforcement authority to address
violations of program requirements by part 70 sources:
(1) To restrain or enjoin immediately and effectively any
person by order or by suit in court from engaging in any activity
in violation of a permit that is presenting an imminent and
substantial endangerment to the public health or welfare, or the
environment.
(2) To seek injunctive relief in court to enjoin any
violation of any program requirement, including permit
conditions, without the necessity of a prior revocation of the
permit.
(3) To assess or sue to recover in court civil penalties
and to seek criminal remedies, including fines, according to the
following:
(i) Civil penalties shall be recoverable for the violation
of any applicable requirement; any permit condition; any fee or
filing requirement; any duty to allow or carry out inspection,
entry or monitoring activities or, any regulation or orders
issued by the permitting authority. These penalties shall be
recoverable in a maximum amount of not less than $10,000 per day
per violation. State law shall not include mental state as an
element of proof for civil violations.
(ii) Criminal fines shall be recoverable against any person
who knowingly violates any applicable requirement; any permit
condition; or any fee or filing requirement. These fines shall
be recoverable in a maximum amount of not less than $10,000 per
day per violation.
(iii) Criminal fines shall be recoverable against any
person who knowingly makes any false material statement,
representation or certification in any form, in any notice or
report required by a permit, or who knowingly renders inaccurate
any required monitoring device or method. These fines shall be
recoverable in a maximum amount of not less than $10,000 per day
per violation.
(b) Burden of proof. The burden of proof and degree of
knowledge or intent required under State law for establishing
violations under paragraph (a)(3) of this section shall be no
greater than the burden of proof or degree of knowledge or intent
required under the Act.
(c) Appropriateness of penalties and fines. A civil
penalty or criminal fine assessed, sought, or agreed upon by the
permitting authority under paragraph (a)(3) of this section shall
be appropriate to the violation.
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