Federal Register Version, September 4, 1992
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
Operating Permit Program
AGENCY: Environmental Protection Agency (EPA)
ACTION: Proposed rule; notice of opportunity for public hearing.
SUMMARY: The EPA is proposing a new Part 70 of Chapter I of
Title 40 of the Code of Federal Regulations. This part will
contain regulations requiring States to develop, and submit to EPA,
programs for issuing operating permits to major stationary sources
(including major sources of hazardous air pollutants listed in
section 112), sources covered by new source performance standards
(NSPS), sources covered by emissions standards for hazardous air
pollutants pursuant to section 112, and affected sources under the
acid rain program. Title V of the Clean Air Act (Act) Amendments
of 1990, P.L. 101-549, enacted on November 15, 1990, requires EPA
to promulgate regulations within 12 months of enactment. Title V
establishes timeframes for developing and implementing the State
permit programs. Within 3 years of enactment, States must submit
proposed permit programs to EPA for approval. Sources subject to
the program must submit complete permit applications within 1 year
after a State program is approved by EPA or, where the State
program is not approved, within 1 year after a program is
promulgated by EPA.
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 and
compliance reports will be available to the public, subject to any
applicable confidentiality protection procedures similar to those
contained in section 114(c). The EPA anticipates that this program
will provide more efficient implementation of the Act, including
improved enforcement, enhanced State air program resources, and a
streamlined process for revising air pollution control
requirements.
DATES: Comments on the proposed regulations must be received by
July 9, 1991. The EPA is likely to be unable to extend the public
comment period due to the strict 12 month deadline in the Act. The
EPA expects to hold four public hearings on June 4-5, June 6, June
24-25, and July 1-2 at the addresses listed below. Requests to
present oral testimony must be received on or before May 24, 1991.
If possible, comments should be sent in both paper and computerized
form. Two paper copies of each set of comments are requested.
Comments generated on computer should also be sent on an IBM-
compatible, 5 1/4 inch diskette and clearly labeled. Computer
files created with the WordPerfect 5.1 software package should be
sent as is. Files created on other software packages should be
saved in an "unformatted" mode for easy retrieval into WordPerfect.
Comments should refer to specific page numbers whenever possible.
DOCKET: Supporting information used in developing the proposed
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: Comments must be mailed (in duplicate if possible) to:
EPA Air Docket (LE-131), Attn: Docket No. A-90-33, Room M-1500,
Waterside Mall, 401 M Street SW, Washington, DC 20460. The public
hearings will be held in the Waterside Mall auditorium at the EPA's
Headquarters Office in Washington, D.C. (June 4-5); at the Museum
of Science and Industry -- West Pavilion Auditorium, 57th Street
and Lakeshore Drive, Chicago, Illinois (June 6); in the EPA
Regional Office, 75 Hawthorne Street, San Francisco, California
(June 24 and 25); in the EPA Regional Office, 1445 Ross Avenue,
12th Floor, Dallas, Texas (July 1-2).
FOR FURTHER INFORMATION CONTACT: Michael Trutna at (919) 541-5345.
Persons interested in attending the hearing or wishing to present
oral testimony should contact Ms. Carol Bradsher in writing at the
U.S. Environmental Protection Agency, Office of Air Quality
Planning and Standards, Air Quality Management Division, Mail Drop
15, Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
The contents of today's preamble are listed in the following
outline:
I. Background And Purpose
II. Implementation Principles
III. Proposal Summary
A. Applicability
B. State Permit Program Submittals and EPA Approval
C. The EPA Program Oversight
D. Complete Permit Applications
E. Permit Content
F. Permit Issuance and Review
G. Fee Demonstration
H. Permit/SIP Relationship
I. New Source Review/Title V Relationship
J. Small Businesses
K. Relationship With Section 112 (Air Toxics)
L. Relationship With Title IV (Acid Rain)
IV. Detailed Discussion of the Key Aspects of the Proposed
Regulations
A. Section 70.1 - Statement of Program Goals
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,
Operational Flexibility 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. Additional Topics of Discussion
A. Implementation Agreements Between State Agencies and EPA
B. Relationship of Permit Programs to SIP's
C. Implications for Acid Rain Program
D. Judicial Review
E. Implications for Section 112
F. Information Management Support
G. Relationship of Permit Fees to Section 105 Grants
H. Integration of National Pollutant Discharge Elimination
System (NPDES) Program Concepts
VI. Federal Operating Permit Program
A. Purpose
B. Part 71 Default Program
C. Acid Rain Program
D. Maximum Achievable Control Technology (MACT) Extensions
VII. Administrative Requirements
A. Public Hearing
B. Docket
C. Office of Management and Budget (OMB) Review
D. Regulatory Flexibility Act Compliance
E. Paperwork Reduction Act
F. Federalism Implications
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 concepts and issues
behind today's proposal.
The first section provides background on the effort to amend
the Act to include an operating permits program, the purposes of
that action, and the expected benefits. The information is useful
to anyone seeking any level of information on the operating permits
program.
The second section explains the principles EPA has followed
while developing the proposed regulations, and the positions on
associated issues. The reader should review the preamble and
regulations with these principles in mind.
The program summary section (section III.) provides summaries
of the major portions of the program. This section of the preamble
is similar to an executive summary of a report and allows the
reader to obtain general knowledge of the subjects, after which
more detailed discussion can be sought in other parts of the
preamble.
The detailed discussion of the regulations is in section IV.
This section notes the provisions of the regulations, but also
provides comprehensive background on the concepts behind the
regulations and any issues or controversial aspects to be
considered with respect to regulatory requirements. The design of
the regulations generally follows the flow of Title V, as does the
discussion in section IV.
Section V presents additional topics important to the
operating permits program. These areas are not related to specific
regulatory requirements proposed here, so a separate section of the
preamble is devoted to their detailed coverage. The subjects
covered can be found in the preamble outline above.
Another topic warranting separate coverage is the Federal
operating permit program that EPA will implement in the event a
State fails to submit an acceptable program or fails to adequately
enforce an approved program. Other uses for the program will
involve acid rain requirements and early emission reductions from
hazardous air pollutant sources. This Federal program is discussed
in section VI. of this preamble.
The final section (section VII.) contains the administrative
requirements accompanying Federal regulatory actions. These
include the topics listed in the preamble outline above.
There is some intended redundancy in this preamble; first
because there is a separate summary, but second because a number of
issues or topics are related to several regulatory requirements or
other topics discussed. In the event the reader focuses on only
certain topics, this overlap is intended so as not to ignore a
specific issue or subject pertinent to a specific area, just
because it is covered elsewhere.
The preamble includes many citations [e.g., (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 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"
may also include reference to a local air pollution agency or
certain Indian tribes. 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 may also apply
to EPA, where the Agency is the permitting authority of record.
I. Background and Purpose
The new Title V of the Act introduces an operating permits
program generally modeled after the NPDES program under the Clean
Water Act (CWA). Some of the regulations proposed today are also
modeled on NPDES regulations in 40 CFR Parts 122, 123, and 124.
The EPA, therefore, will generally look to the NPDES program
precedent when resolving similar issues under the Title V permit
program. Part 70 sources must obtain an operating permit; States
must develop and implement the program; and EPA must issue permit
program regulations, 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 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 CWA and
the Resource Conservation and Recovery Act, both of which have
permit requirements. While to date there has not been an express
Federal requirement that States have an operating permit program
for air, a recent comprehensive survey of existing State permit
programs indicates that about 40 State programs issue operating
permits to at least construction projects. Over half of the
existing State operating permit programs address both new and
existing sources and require renewal of permits periodically. Many
of these programs appear to match closely the intent of Title V in
that they have the basic components required by Title V for issuing
permits, collecting fees, providing for public participation,
reopening permits, and issuing permits for a fixed term. 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, while ensuring that existing (and new) State
programs will meet the requirements of the Act.
A primary benefit of the Title V permit program is that it
will in general clarify which requirements apply to a source in a
single document 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 and, therefore, it may be unclear which,
and how, general regulations apply to a source. Similarly,
applicable provisions are sometimes not explicit as to reporting
requirements (e.g., when to submit periodic compliance reports to
EPA or the States). 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 better understand 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 programs.
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
requirements in 40 CFR Parts 72 through 78 (to be promulgated at a
later date).
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 their fair share of the costs of
developing and implementing the permit program. To the extent the
fees are based on emission levels, the fees will create an
incentive for sources to reduce emissions.
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 new Act sets forth ambitious
goals which can only be achieved through effective and expeditious
implementation by EPA and State and local governments. Today's
proposed 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 believes that the
following principles should guide the design and implementation of
Title V regulations and related programs.
These principles are 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. The public is urged to frame its
comments on today's proposal keeping in mind the extent to which
sections of this proposal are consistent with the various
implementation principles outlined below.
A. Ensure Environmental Protection
Congress's basic goal in adopting the Title V permit program
is to achieve improved air quality by establishing a broad-based
tool to aid effective implementation of the Act and to enhance the
Agency's ability to enforce the Act. The EPA believes it is
important that other implementation objectives stated below
complement this objective, not undercut the potential of Title V
for strengthening air quality management efforts across the
country.
B. Incorporate Broad-Based Perspective for Rule Development
The EPA continually seeks a better understanding of the key
concerns of those most affected by Title V in order to have a
broad-based perspective during the regulation development process.
With this goal, the Agency hopes to make implementation efforts
more effective and to minimize the chances for conflict. Today's
proposal was developed with the benefit of insight from important
affected parties (including State and local governments, major
industries, small businesses, and environmental organizations)
which were actively involved in the Title V legislative process.
The EPA is interested in receiving additional input from these and
other interested parties during the public comment period.
C. Maintain an Effective Partnership With State and Local
Governments
The EPA recognizes that the bulk of the responsibility for
implementing Title V falls upon State and local governments. Thus,
a key principle in developing today's proposed rules has been to
build upon existing operating permit programs and to provide the
States with regulatory flexibility wherever possible to maintain
existing program elements in implementing Title V.
D. Minimize Redundancy in SIP's and Permit Programs
The Title V permit program is designed to complement SIP's in
achieving improved air quality management across the country.
Because operating permits will contain more source-specific details
than SIP's, EPA intends that source-specific permit changes be
implemented wherever possible solely through the procedures in the
permit program rather than through the SIP process. In this way,
subject sources and governments will experience less burden and
delay than would be associated with a multi-step procedure which
includes the more cumbersome SIP revision process.
E. Encourage Early State Program Development
The EPA supports early adoption of the program by States in
order that the Title V framework enable them to implement more
quickly other new Act programs. During the transition period, the
EPA intends to assist States with their development of timely Title
V programs and their efforts to obtain interim program approval.
F. Minimize Small Business Concerns
The Act requires certain small businesses to become regulated
for the first time via the requirement to obtain a Title V
operating permit. The EPA will be sensitive to the impact of these
regulations on these sources by phasing-in and streamlining the
permitting requirements as appropriate. Where possible, EPA
intends to promulgate rules which employ cost-effective permitting
techniques, such as general permits, to simplify the permit
application and issuance process.
G. Promote Pollution Prevention
The EPA encourages permitting authorities to promote cost-
effective pollution prevention alternatives where possible in their
permitting activities. Permits can, consistent with the law, be
used to define creative activities for shifting to inherently
cleaner processes, including the maximum use of performance
standards, both in meeting requirements for criteria pollutants and
the acid rain program, and in meeting otherwise applicable
requirements of section 112 of the Act.
H. Facilitate Use of Market-Based Incentives
The operating permit program is intended to be an effective
administrative tool for achieving cost-effective improvements in
air quality through market-based principles. Title V operating
permits will be used to implement the requirements of Title IV of
the Act. Acid rain permit requirements must not hinder the
effective operation of the allowance trading market. In addition,
the Title V permit program will be used to facilitate the
incorporation of market-based incentives, to the extent they are
consistent with the Act.
I. Allow Flexibility in State Programs and Source Permits
Except as necessary to ensure national consistency to support
the market-based, acid rain allowance trading system, requirements
for Title V programs are intended to be flexible enough to allow
States a reasonable range of options in designing their State
programs for EPA approval. Unnecessary regulatory detail will
unduly jeopardize approval of different but effective State and
local programs. Sources must also be provided flexibility within
their permits. Specifically, they should be allowed to make
certain types of changes without having to undergo full permit-
modification procedures. This will be especially important to some
industries so that their market competitiveness is not jeopardized.
J. Establish Certainty for Permitted Sources
A Title V permit should articulate a clear road map of source
obligations to inspire confidence in the system. The permit shield
provisions should be used by the permitting authority to provide a
stable reference point from which to govern the operation of the
source until the time of permit renewal, unless there are clear
reasons that require an interim reopening of the permit (e.g., to
incorporate newly- promulgated standards with near-term compliance
dates).
K. Enable Effective and Efficient Information Transfer
The EPA intends that information contained in permits, permit
applications, and compliance certification reports (to the extent
not protected under laws of confidentiality) be used for several
air quality management purposes. The EPA intends to promote
consistent data submittals to track progress, consolidate current
reporting burdens, and inform affected parties of a source's
compliance status relative to its enforceable obligations.
L. Prioritize EPA Oversight on Overall Program Implementation
The EPA takes seriously its new responsibilities for reviewing
permits and overseeing State/local program implementation. The
Agency understands, however, that State and local governments have
administered effective operating permit programs for many years and
can be expected to do so in the future without "micro-management"
from EPA. Concern has been raised that overuse of EPA's permit
veto authority could lead to serious administrative roadblocks for
permitting agencies. Within the limitations of its permit review
responsibilities as stated in the Act, the Agency intends to place
more priority on the oversight of overall program implementation
than on the review of
noncontroversial, individual permits so long as clean air goals are
being achieved.
M. Promote Possibilities for Integrated Permit Programs
The EPA intends that the Title V rulemaking provide the basis
for opportunities to establish a permit program to consolidate the
review of a source's impact with respect to the Clean Air Act and
to other environmental media. In particular, the Agency encourages
close coordination of the preconstruction and operating permit
review programs for air to minimize duplication and delay.
Comments are specifically solicited as to how integrated permitting
can be promoted and not inhibited by this rulemaking.
N. Promote Simple and Streamlined Regulations
It is EPA's intent to simplify and streamline these
regulations to the maximum extent possible. To this end, the
Agency solicits comment as to how this proposal might be simplified
and/or streamlined.
III. Proposal Summary
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 proposed 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, 25 tpy or more of any combination of
hazardous air pollutants, 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's 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 that are in the same major group industrial
classification). Once subject to the Part 70 operating permit
program for one pollutant, a source must be reviewed for emissions
of all pollutants regulated under the Act from all regulated
emissions units located at the plant. As a general rule, all
emissions of regulated pollutants are also subject to fee
assessment. The program (including combinations of partial
programs) applies to all geographic areas within each State,
regardless of their attainment status, although for purposes of the
acid rain permit program requirements, the program applies only
within the contiguous 48 States.
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" or
"affected" (i.e., acid rain) source from the permitting
requirements. States may, if they wish, allow and/or charge fees
for federally-exempted sources.
The EPA believes that coverage at the outset of all the
sources described above would be both impractical and infeasible.
Therefore, to promote an orderly phase-in of the program, EPA is
proposing to defer initially from coverage for 5 years from the
date of program approval all sources which are not major. Nonmajor
sources in nonattainment areas will receive this deferral only if
the permitting authority makes a showing that the State can
effectively enforce its SIP obligations on such sources without
using federally-enforceable operating permits. The Administrator
also reserves the ability to determine on a case-by-case basis
future inclusion of nonmajor sources which become subject to new
section 112 standards.
Any source whose initial applicability is deferred may opt to
obtain a permit prior to the end of the 5-year deferral period.
All deferred sources will be required to submit permit applications
by the end of the 5-year deferral period, unless they are sources
or source categories that receive a continued exemption (i.e., EPA
determines that permitting such source categories would be
impracticable, infeasible, or unnecessarily burdensome) in a future
rulemaking.
B. State Permit Program Submittals and EPA Approval
Title V requires EPA to promulgate regulations establishing
the basic 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 mentioned, 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
Within 1 year of enactment of the 1990 Amendments (November
14, 1991), EPA must promulgate regulations establishing the minimum
elements of a State operating permit program. These regulations
must include the following elements:
(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."
(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 comment and a hearing; for expeditious
review of permit actions, and 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 or anyone else who participated in the
public comment process to compel action on the application
[502(b)(7)].
(k) Authority and procedures to make available to the public
any permit application, compliance plan for noncomplying sources,
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)].
(2) State Program Development
Within 3 years of enactment (2 years after EPA is obligated to
issue its permit program regulations), 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 any time after Part 70 rules become final.
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 early 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
expand 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
EPA's permit program 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 are proposed to include: (1) the
commitment and capability to collect fees adequate to cover the
costs of the State permitting program, (2) the legal authority to
assure that affected sources comply with all applicable
requirements under the Act, (3) fixed permit terms not to exceed 5
years, (4) the opportunity for public participation in the permit
issuance process, (5) the opportunity for EPA to review and object
to the issuance of any permit, and (6) the requirement that a
proposed permit will not be issued if EPA objects to its issuance.
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(g) and (d)(2)-(3)]. Permits
issued under a program with interim approval have full standing
with respect to Title V and the 1-year time period for source
submittal of permit applications 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)], sources are required to submit
permit applications to the permitting authority within 1 year of
program approval, whether full or interim. For Title IV (acid
rain) sources, however, specific superseding deadlines are provided
for the submission of applications for 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 initial
permit action. 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 act on a completed application and issue
or deny a permit within 18 months after receiving the complete
application. The permitting authority should also 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.
C. The EPA Program Oversight
Federal authority for oversight of State operating permit
programs is described in 70.10. Such oversight activities
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)]. The EPA may
apply the offset ratio sanction only in areas where the failure to
submit or disapproval relates to an air pollutant for which the
area is designated nonattainment. One 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 EPA finds a lack of good faith effort on the part
of the State, both sanctions are to apply until the State comes
into compliance with the requirements of Title V [179(a)(4)]. 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 fee program is not
approvable or that a permitting authority is not adequately
administering an approved fee program, the EPA will promulgate
under Part 71 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)].
D. Complete Permit Applications
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 is not complete 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
when a complete application has been received. In the event that
no notice is provided to the source within 30 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 the delay in issuing the permit 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 to sources requiring NSR permits. They must have
filed a complete application for a Title V operating permit and
have a preconstruction permit before operating the new source or
major modification [503(d)]. In general, a complete application
must be submitted according to the transition schedule approved
within the program and in a timely way for subsequent renewals.
"Timely" for renewals is proposed to mean 18 months prior to
expiration of the permit, unless some other time is approved by the
Administrator. Correspondingly shorter times might be appropriate
when the fixed term of the permit is for less than 5 years or where
the permitting authority is obligated to act on permit renewals in
less than 18 months. In no event will EPA approve a time period
which is shorter than 6 months before permit expiration.
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, which describes
how a noncomplying source plans to achieve all applicable air
quality requirements under the Act. The 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. All sources must submit a compliance
certification report at least once a year. Parts 72 through 78
will contain specific requirements for acid rain affected sources
regarding compliance schedules, progress reports, and compliance
certifications.
The minimum data elements proposed for inclusion in all
standard application forms, as well as the basic requirements for
compliance plans for noncomplying sources, are presented in 70.5
of the regulations. With the exception of certain Federal programs
(e.g., acid rain), EPA will not require that any specific 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 70.5.
Additional information may be required from some subject
sources. Those located in nonattainment areas under Title I, Part
D of the Act may be required to fulfill the emissions statement
requirements for certain sources of VOC's 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.
E. Permit Content
The State regulations required under Title V and proposed in
70.6 must 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)
must 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 SIP [504(a)] and Title IV.
(3) A schedule of compliance for noncomplying sources, which
is defined as a schedule of remedial measures, including an
enforceable sequence of actions or operations, leading to
compliance with applicable requirements under the Act [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 section 504(b) and Title V
[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 no "modification"
(as defined in Title I of the Act) would occur and 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)].
(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 [408(b)].
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. Before
considering EPA's proposed provisions on operational flexibility,
however, it should be recognized that the nature of a permit is to
allow anything that it does not expressly prohibit. That is, a
source may not only do what its permit specifically allows, but
also what the permit terms do not specifically prohibit. Thus,
when section 502(b)(10) speaks of changes that do not result in
exceedances of the emissions allowable under the permit, this means
any change that does not violate an express prohibition in the
permit is allowed. Several approaches to achieving this
flexibility in permits are described in section IV.F.(5). The EPA
solicits comments on these and any other suggested approaches.
F. Permit Issuance and Review
Proposed regulations concerning the processes for permit
issuance, review, renewal, revision, and reopening are found in
70.7. Briefly, these include:
(1) Timing of Permit Application, Review, and Issuance
Sources required to have a permit must submit a complete
permit application and compliance plan (for noncomplying sources)
to the permitting authority within 12 months of the effective date
of the State program. The permitting authority may designate a
period of less than 12 months for initial submission of
applications. Permit applications and compliance plans required
under Title IV of the Act (acid rain) must be submitted on a
schedule different from those required under Title V. Phase II
sulfur dioxide (SO2) permit applications and compliance plans must
be submitted to the States by January 1, 1996 [408(d)(2)]. States
must act on these applications by December 31, 1997 [408(d)(3)].
These applications and compliance plans will be binding on the
source until a permit has been issued. Applications with respect
to NOx under Title IV will be due January 1, 1998.
(2) 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 permit proposed to EPA and each permit issued as a
final permit by the State [505(a)(1)].
In regard to notification of States, the permitting authority
is required to notify all affected States of each permit
application and each permit submitted for public comment. The
authority must also notify each State within 50 miles of the
applicant 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 neighboring 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 neighboring
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.
(3) The Agency Review and State Response
The EPA must by law object to any permit that would not be in
compliance with the applicable requirements of the Act, including
the applicable implementation plan. If EPA objects within 45 days
after receiving either the proposed State permit or the notice that
the permitting authority has refused to adopt a neighboring 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 the permit with respect
to Title V if EPA objects, unless it revises the permit to meet
EPA's objections. If the authority has already issued the permit,
EPA will modify, terminate, or revoke the permit, and the
permitting authority must reissue it to meet EPA's objection
[505(b)(3)]. The permitting authority has 90 days after EPA's
objection to revise the permit (unless the permitting authority
does so first). If the permitting authority fails to do so, EPA
must issue or deny the permit [505(c)].
(4) Judicial Review and Public Petition
An approvable program must provide for judicial review in
State court of the permit action whether the review is obtained by
the applicant, anyone who participated in the public comment
process, or any other person who could obtain judicial review of
the action under applicable 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 comment 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
shall not postpone the effectiveness of a permit that has issued.
The Administrator shall grant or deny a petition within 60
days after it is filed. The 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, including the
applicable SIP and Title IV requirements. 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)].
(5) Permit Shield and Reopenings
Section 504(f) of the Act defines the permit shield provision
of Title V, which enables States and the Administrator to provide
sources with greater certainty as to their legal obligations under
the Act. This section establishes that the permit may 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 and if the this determination or
a concise summary thereof is 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 is soliciting comment on the potential scope and
effect of the permit shield. It is possible to read the shield
provision narrowly, limiting its protection to those requirements
the permit explicitly addresses. The EPA believes, however, that
the shield provision should be interpreted broadly, thus protecting
a source from enforcement of a whole class of Act requirements if
the permit addresses any one of those requirements.
Under either interpretation, EPA may limit the scope of the
permit shield by rule. While EPA is proposing a broad
interpretation of the shield in today's notice, 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) or where an applicable
requirement is omitted from a permit. In no event can any source
seeking to obtain or renew a Part 70 permit be shielded from
enforcement action that results from violations of any applicable
requirements (including orders and consent decrees) that occurred
before the permit was issued or from requests for additional
information pursuant to section 114 of the Act.
Any approvable program, at a minimum, must require that the
permitting authority will revise all permits with terms 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 notice and comment procedures for permit
issuance, 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)]. The EPA is proposing to interpret the provision as
being applicable to major source permits with a remaining life of
3 or more years.
Approvable programs also must require that the permitting
authority may terminate, modify, or revoke permits for cause
[502(b)(5)(D)]. "Cause," for example, may exist when the permit
contains a material mistake made in establishing the emissions
standards or limitations, or in other permit requirements. For
purposes of acid rain, permit revision procedures will be governed
by Part 72.
Phase II acid rain permits will need to be reopened to
incorporate NOx provisions, which are not due until 1998. Excess
emission offset plans and all allowance allocations and transfers,
however, shall 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)].
The Agency proposes that any permit reopenings accomplished by the
permitting authority will supersede any applicable portion(s) of a
permit shield that is in effect.
(6) Permit Revisions
Section 502(b)(6) does not define with precision how permit
revisions are to be processed, thus leaving EPA discretion for
construing this provision, as explained below. The EPA is today
proposing three types of permit revisions that are needed to amend
the Part 70 permit to accommodate operational changes which do not
qualify under the operational flexibility provisions of section
502(b)(10) [IV.F.(5)] as previously discussed. Instead, they
trigger the need for revision to permits prior to their renewal.
The first class of permit revisions consists of minor permit
amendments. These are changes which go beyond the activities
allowed in the original permit that increase the total emissions
allowed under the permit (for any regulated pollutant from
emissions units addressed by the permit), but do not rise to the
level of modifications subject to Title I NSR procedures and do not
violate any applicable Federal requirements.
Under such a "fast track" process for minor permit amendments,
States are free to adopt procedures to allow such changes to take
effect automatically after a specified period of time (no less than
7 days), as long as the permitting authority does not object during
this period. The second class of permit revisions are
administrative permit amendments. These changes are either
insignificant ones which adjust details not important to air
quality (e.g., change in source name) within Part 70 permits or
changes which have been already reviewed and processed under new
source review procedures approved into the SIP. Changes qualifying
as administrative permit amendments can be administratively
incorporated into the operating permit by the permitting authority.
The third class of permit revisions is permit modifications.
A permit modification is a revision to a Part 70 permit that meets
the requirements of section 707(d) of this Part. A permit
modification is subject to the same procedures required for initial
permit issuance, including EPA review and the opportunity for
public comment and hearing. After receipt of an application for a
modified permit, permitting authorities will focus their efforts on
review of the specific changes indicated in the application.
However, they must also evaluate the application to confirm that it
assesses the impacts of such changes on other aspects of the
source's operations and assures continued ability to comply 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 cause automatic amendment of the source's permit
as a matter of law, without following either the permit
modification or amendment procedures described above. Regulations
governing allowance trading will be promulgated at 40 CFR Part 73.
(7) 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 compliance
plan for noncomplying sources 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 [III.D.]. To maintain the protection
afforded by having a complete application, the source applicant
still must respond in a reasonable 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 complete application, the source's right to
operate is terminated unless and until a complete application is
filed with the reviewing authority [503(d)], subject to a grace
period where only administrative penalties would be applicable.
The source is then subject to enforcement action (for operating
without a Title V permit) for any period of time that it has
operated without a renewed permit and without having submitted a
complete application. The application shall be deemed to be
complete 30 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 NPDES program under the CWA, EPA
is proposing that, except where inconsistent with State law or as
provided in Part 72 for the acid rain portions of a permit, the
conditions of a permit where the fixed term has expired still
remain enforceable until they are replaced by those in a reissued
permit.
G. Fee Demonstration
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 70.9.
An approvable permit program must require the fee payer 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 EPA
proposes to interpret reasonable costs to include the costs of
administering most air control program activities which involve
sources subject to Title V. All fees collected by a permitting
authority under Title V must be used solely to support the permit
program [502(b)(3)(C)(iii)]. The EPA is proposing that these fees
must cover a broad range of costs, including:
(1) Reviewing and acting upon any application.
(2) Implementing and enforcing the permit, including any
permit issued before enactment of Title V, but not any court costs
or other costs associated with an enforcement action.
(3) Emissions and ambient monitoring, including continuous
emissions monitors (CEMS) (where applicable) and inspections.
(4) Preparing generally applicable regulations or guidance.
(5) Modeling analyses and demonstrations.
(6) Preparing inventories and tracking emissions
[502(b)(3)7(A)(i)-(vi)].
(7) Permit-related functions performed by air pollution
control agencies which do not issue permits directly.
(8) Development and administration of the State small
business stationary source technical and environmental compliance
assistance program as it applies to Part 70 sources.
(9) Information management activities to support and track
permit applications, compliance certifications, and related data
entry.
The program must presumptively collect a fee amount from all
permitted sources equal to at least $25 per ton (1990 baseline) for
the actual emissions of each regulated pollutant, with the
exception of carbon monoxide [502(b)(3)(B)(i) and (ii)] and with
the further exceptions that 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 if these emissions are already accounted
for within the emissions of another regulated pollutant (although
the State is not precluded from doing so). The program need not
collect the $25 per ton amount if it can provide a demonstration
that a lesser amount will adequately support the direct and
indirect costs of the program [502(b)(3)(B)(iv)]. Conversely,
States are free to use different approaches or charge more than $25
per ton and must do so if additional funds are necessary to cover
the costs of the program. In any event, the permitting authority
must provide for a periodic accounting of how the collected fees
were used 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. The fee amount 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). In addition, the EPA interprets Title V to direct
States, as a minimum, to recover costs related to meeting Federal
requirements, including the requirements of the applicable State
plan that implements the relevant requirements of the Act. 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 during Phase I of
the acid rain program. The Agency interprets this provision to
mean that EPA may not collect fees from Phase I-affected sources
prior to the year 2000, but that States are not precluded from
collecting fees from these sources for permitting activities
pursuant to other requirements of the Act.
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.
H. 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 existing SIP's contain all relevant present and
past requirements, proper implementation of the permit program will
ensure that all SIP provisions applicable to a particular source be
defined, clarified, interpreted (as necessary), and collected into
a single document. The applicable requirements would include any
recent SIP changes, whether as a result of a State or local SIP
revision or of a Federal implementation plan (FIP) action by EPA.
Where appropriate, EPA intends to promote the implementation of the
permit program through the use of model permits for critical source
types. Moreover, EPA proposes a broad interpretation of the
shield, which requires that States with areas under a SIP call
provide permitted sources a shield from compliance with any new SIP
requirements in a manner consistent with how the State will meet
any outstanding SIP call.
As previously discussed, Title V affords reasonable
operational flexibility to subject sources. The relationship
between Title V permits and SIPs 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. EPA recognizes that it will take
time to complete the transition from a regulatory system where SIPs
are the primary tool for implementing and enforcing the Act, to one
where operating permits ultimately assume primary responsibility
for implementation and enforcement. Elsewhere in today's proposal,
the EPA takes comment on ways to ensure a smooth transition to
increasingly general, and thus more flexible, SIPs, combined with
more detailed permits specifying the enforceable operating limits
applicable to subject sources. Permits issued pursuant to Title V
are not part of the SIP, but they, like SIP's, are federally-
enforceable. Where reliance on tighter conditions found in permits
is critical to satisfy an applicable requirement of the Act, the
SIP demonstration must recognize the new permit limits in context
of ensuring attainment and maintenance of the NAAQS and any another
interim requirements to make reasonable further progress. At the
option of the State, this might involve the periodic incorporation
of these limits into the SIP to ensure their permanence. The EPA
will allow, to the extent possible, batch submittals and/or
expedited processing procedures for incorporation of these limits
into the SIP. This will include the use of the SIP processing
reforms announced in 54 FR 2214, January 19, 1989.
Today's proposal also solicits comment on ways to accomplish
an upgrade of the SIP demonstration (relative to the results of the
permit process) without making the SIP's so detailed as to limit
future permit changes at affected sources. One concept proposed
for comment would allow, as a substitute for having to incorporate
every tighter permit requirement into the SIP, a single broad SIP
provision. This provision would reflect the aggregate effect of
tighter limits achieved in the permit program, but only to the
extent necessary to demonstrate attainment and maintenance of the
NAAQS or to meet any other requirement related to Reasonable
Further Progress.
I. New Source Review/Title V Relationship
Decisions made under the NSR and/or PSD programs [e.g., best
available control technology (BACT)] define applicable SIP
requirements for the Title V source and, if they are not otherwise
changed, can be incorporated without further review into the
operating permit for the source. The Title V program is not
intended to interfere in any way with the expeditious processing of
new source permits. 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)].
J. 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, EPA is proposing to defer initially
the applicability from the permitting program of all nonmajor
sources which would have been otherwise subject to Title V
provisions. These sources are believed to be disproportionately
small businesses. The proposed exception to this deferral is for
sources in nonattainment areas, where permitting of nonmajor
sources may be deferred only if the permitting authority makes a
showing that such action will not adversely affect the State's
ability to meet its SIP obligations under the Act. The EPA would
continue the permitting deferral for certain nonmajor sources if
permitting them is demonstrated by EPA to be impracticable,
infeasible, or unnecessarily burdensome in a future rulemaking.
For those small businesses still required to obtain, or those
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
notice and an opportunity for a public hearing must be provided by
the permitting authority when considering issuance of 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 program must contain the following provisions for small
business stationary sources:
(1) Mechanisms for developing information concerning
compliance methods and programs to encourage lawful cooperation
among such sources.
(2) Mechanisms to assist such sources with pollution
prevention and accidental release detection and prevention.
(3) A State ombudsman for such sources to aid in
implementation of the Act.
(4) A compliance assistance program to help such sources
determine applicable requirements and receive permits.
(5) Mechanisms to assure that such sources receive notice of
their rights under the Act.
(6) Mechanisms to assure that such sources are informed of
their obligations under the Act, including referrals to qualified
auditors.
(7) Procedures to consider requests from such sources to
modify work practice or technological compliance methods, or the
milestones for implementing such methods. Such requests would be
based on the source's technological and financial capability. All
such modifications must comply with the Act's requirements, and
Federal regulations may only be modified if the regulation provides
for the modification [507(a)(1)-(7)].
The EPA must establish a program for small business stationary
sources within 9 months after enactment which must (1) assist the
States in developing their programs, (2) issue guidance about
alternative control technologies and pollution prevention methods,
and (3) in States that fail to adopt a program, implement the
requirement to assist such sources in determining applicable
requirements and receiving permits [507(b)]. The EPA must also
have a Small Business Ombudsman to monitor implementation of the
program [507(d)]. Other oversight procedures are contained in
Title V to ensure the effectiveness of this SIP-based program.
To qualify for assistance from these programs, a source must
meet all the following conditions:
(1) Be owned or operated by a person employing 100 or fewer
individuals.
(2) Be a small business under the Small Business Act.
(3) Not be a major stationary source.
(4) Not emit 50 tons per year or more of any regulated
pollutant.
(5) Emit less than 75 tpy of all regulated pollutants
[507(c)(1)].
States may also include a source that is a major stationary
source provided that the source does not emit more than 100 tpy of
all regulated pollutants combined [507(c)(2)]. The EPA or the
State may exclude from the program any category of sources that has
sufficient technical and financial capabilities to meet the
requirements of the Act without the program. The EPA and the State
must consult with the Small Business Administration and provide
notice and opportunity for comment on such exclusions [507(c)(3)].
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's) 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 when
developing CTG's [507(h)].
K. Relationship with Section 112 (Air Toxics)
The operating permit program will implement existing section
112 standards for subject sources of hazardous air pollutants, as
well as future standards to be promulgated under section 112 which
describe requirements for the use of 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, after controls, 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.
Section 112(l) of the Act outlines a program for State
implementation of section 112. The EPA proposes that the
procedural requirements in section 112(l) to review and
approve/disapprove State programs will be met by the promulgation
of Part 70, specifically as described in section V.E. of the
preamble.
The State permit program submittal is required to contain a
legal opinion affirming the adequacy of existing legal authority to
implement and enforce certain section 112 provisions. Authority is
needed to accept delegation of authority to implement and enforce
MACT standards; to develop and enforce 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)].
The operating permit program will also be the principal long-
term mechanism for implementing alternative emissions limitations
for sources which demonstrate that they have achieved reductions of
90 percent or more in emissions of hazardous air pollutants, or
reductions of 95 percent or more in emissions of particulate
hazardous pollutants. Existing sources which make sufficient early
reductions will receive a 6-year extension from the compliance date
for meeting the otherwise applicable standard [112(i)(5)].
L. Relationship With Title IV (Acid Rain)
Title IV mandates a two-phased acid rain control program which
will be implemented, as in the case of other Act requirements,
through Title V operating permits. The requirements of Part 70
will apply to the permitting of affected sources under the acid
rain program, except as modified in 40 CFR Parts 72 through 78,
pursuant to Title IV [506(b)]. Compliance with the acid rain
program requirements in Parts 72 through 78 will not exempt or
exclude the owner or operator of any source subject to those
requirements from compliance with any other applicable requirements
of the Act [403(f)].
Title IV sets forth certain permitting requirements that
supplement the Title V requirements addressed by today's proposal.
Places where the acid rain permitting program may differ from the
Title V operating permit program have been highlighted, and some
specific statutory requirements under Title IV are included in this
proposal. Most specific requirements of the acid rain permit
program will be established in a separate rulemaking, with final
rule promulgation 18 months after enactment. It is contemplated
that the acid rain permit program rules will be promulgated at 40
CFR Part 72. Other requirements for that program will be
promulgated at Parts 73 through 78 of 40 CFR. References to those
sections are used in this rulemaking where appropriate.
Acid rain-specific permit content requirements must be
included in permit applications, compliance plans, and operating
permits under both phases of the acid rain program. The permitting
process will be different for Phase I and Phase II. Section 408
provides that Phase I of the acid rain program (1995 through the
end of 1999) will be implemented entirely through operating permits
issued by the EPA. Phase II (beginning in 2000) will be
implemented by operating permits issued by the States with
federally- approved permit programs, or by the EPA in the event of
State defaults. Thus, Phase II permitting will be in accordance
with the process established by the rules proposed today, as
supplemented by the acid rain-specific content regulations in Part
72.
The acid rain permit regulations are anticipated to include a
description of the relationship of the acid rain program to other
programs incorporated in the permits, necessary definitions,
applicability requirements, and necessary permit elements not
included in the rule proposed here. These will include: (1) acid
rain-specific requirements for permits and compliance planning,
including requirements for affected sources relying on one or more
alternative compliance methods authorized by the statute (e.g.,
extensions, substitutions, reduced utilization, energy conservation
or renewable energy, repowering, and options; (2) compliance
certification and reporting requirements; (3) requirements for
designated representatives for affected sources; and (4) excess
emission offset planning and fee requirements.
Whether permits are issued by the State or EPA, acid rain
permit application forms must be used, including a provision
concerning the binding effect of permit applications, which must
(at a minimum) state that the acid rain portion of the permit
application and proposed compliance plan, including amendments
thereto, submitted for an affected source under the acid rain
program shall be binding on the owners and operators, and on the
designated representative for the source, and shall be enforceable
as a permit for purposes of the acid rain program until a permit is
issued by the permitting authority.
All acid rain permits issued to affected sources must
prohibit: (1) annual emissions by affected units in excess of the
applicable emissions limitation for NOx; (2) annual emissions of SO2
by affected units in excess of the number of allowances to emit SO2
held by the owner or operator, or the designated representative,
for use in that year by each affected unit; (3) any person from
holding, using, or transferring any acid rain allowance, except in
accordance with regulations at Part 73; (4) the use of any
allowance prior to the calendar year for which it was allocated;
and (5) circumvention of any other provision of Parts 72 through
78, or of the permit [403(f),(g)]. Standard terms must similarly
be included in permits for acid rain affected sources in order to
ensure a nationally consistent program. In order to facilitate
such standardization, EPA plans to develop forms at the time of the
acid rain rulemaking and to develop support for computer generated
permitting.
When developing permit revision procedures, States should be
aware that the statute forbids requiring permit revisions as a
result of allowance transactions. In accordance with Title IV, all
acid rain allowance allocations and transfers will, upon being
recorded by the Administrator in accordance with section 403 of the
Act and Part 72, be deemed a part of each unit's acid rain permit
requirements, without need for any further permit review and
revision. Nothing in a permit shall be construed as affecting
allowances. In addition, no permit revision shall be required for
increases in emissions that are authorized by allowances held for
a unit pursuant to the acid rain program, provided that the
emissions increases authorized under the acid rain program do not
excuse noncompliance with any other emissions limitation, standard,
or requirement under the Act, including under Title I for the
protection of ambient air quality standards, and that the acid rain
requirements of the permit shall be governed by and consistent with
the regulations at Parts 72 through 78.
No permit or revision to it may be issued that is inconsistent
with the requirements of the acid rain program, requirements of the
Act, or requirements of Parts 72 through 78. Examples of
safeguards that will be developed under the Part 72 rulemaking
which should limit permit revisions include: (1) permit revisions
shall be effective only to the extent they are consistent with
Parts 72 through 78; and (2) limits on the use of the amendment
authority, e.g., changes in the designated representative for
purposes of a source's acid rain program requirement, shall be
supported by a certification of redesignation in accordance with
Part 72.
Rules for Federal acid rain permitting during Phase I, and in
the event of State defaults during Phase II, will be published at
40 CFR Part 72. Acid rain permit content requirements, which must
be included in permits issued by States with approved programs,
will be promulgated at that time. Public comment is invited at
this time regarding the impact of this general permit program
rulemaking on the acid rain permit program. Public comment in
response to the acid rain rulemaking proposal will, however, only
be accepted with regard to the provisions proposed at that time.
Comments will not be considered at that time reopening matters
addressed by this rulemaking.
IV. Detailed Discussion of the Key Aspects of the Proposed
Regulations
This portion of the preamble provides more detail on selected
provisions of the proposed regulations. Issues are identified and
EPA's proposed positions are discussed. Discussion is also
included on the implications of the regulations and on the way
implementation is expected to occur.
A. Section 70.1 - Statement of Program Goals
The purpose, benefits, and certain concepts of the regulatory
requirements in Part 70 are introduced in this section of the
regulations. Detailed discussion of some of these concepts appear
subsequently in this preamble. The key concepts include: (1) the
permitting program generally codifies existing regulatory
requirements and does not impose new control requirements; (2) the
SIP will continue to be the mechanism for demonstrating attainment
and maintenance of the NAAQS; (3) the permits will assure
compliance by the source with an applicable requirement of the Act;
(4) States may implement a more extensive program consistent with
the Act; and (5) EPA must implement a Federal permit program in the
event a State fails to satisfactorily implement its program. This
program, consequently, may be more limited in scope than the State
program.
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 introduced in Title V and many terms created in conjunction
with developing Part 70 are defined by this section. These new
definitions include terms necessary to communicate effectively the
new regulatory requirements, including "complete application," "
Part 70 permit," "Part 70 source," "permitting authority," and
"renewal."
C. Section 70.3 - Applicability
(1) Section 70.3(a) - Sources Subject to Permitting
This section describes program coverage and source
applicability by defining "Part 70 sources." Operating permit
programs must cover the types of stationary sources (except where
EPA has exempted in whole or in part a source category, subject to
certain limitations) previously described in detail [III.A.], which
includes major sources. Section 70.3(a) covers the sources
included in section 502(a).
Source and Major Source: The EPA wishes to clarify how the
definitions of "stationary source" and "major source" will be
applied under the operating permit programs and to explain how
these concepts will relate to the definitions of stationary source
currently in effect in other programs under the Act.
Stationary Source: The EPA has patterned its proposed
definition of "stationary source" for the permits program on the
definition for "stationary source" contained in Title I. The
Agency proposes in 70.2(d) that "stationary source" means any
building, structure, facility, or installation that emits or may
emit any air pollutant.
Major Source: The EPA is taking comment on how to interpret
the section 501(2) definition of "major source." Section 501(2)
provides, in relevant part, that "the term 'major source' means any
stationary source (or any group of stationary sources located
within a contiguous area and under common control)" that would be
a major source under sections 112 or 302, or Part D of Title I of
the Act. As discussed below, the Agency proposes that "stationary
sources" are to be grouped to determine if a major source exists on
the basis of the same industrial grouping, or "major group" in the
Standard Industrial Classification Manual (SIC code). Accordingly,
EPA will require all commonly owned or controlled pollutant-
emitting activities on contiguous or adjacent properties to obtain
an operating permit if they are within the same SIC major group,
and assuming the aggregated activities emit enough pollutants to
trigger the applicable emissions thresholds provided in the Act.
The EPA believes that aggregating sources by SIC code at the
source site to determine whether a source would be major is the
approach intended by Congress. The definitions of major sources in
Part D of Title I have language similar to the Title V language.
For example, section 182(c) states that, for any serious ozone
nonattainment area, "the terms `major source' and `major stationary
source' include (in addition to the sources described in section
302) any stationary source or group of sources located within a
contiguous area and under common control that emits, or has the
potential to emit, at least 50 tons per year of volatile organic
compounds." Although that definition does not explain whether
equipment that does not emit VOC's would be excluded from the
source if the remaining equipment emitted more than 50 tpy, the
House Committee Report explaining the provision sheds light on that
issue and on the Title V definition. Specifically, the Report
states the following:
The definition of "major source" here and elsewhere in the
bill uses the term "group of sources located within a contiguous
area and under common control." The Committee understands this to
mean a group of sources with a common industrial grouping, i.e.,
the same two-digit SIC code. It is the approach followed today by
EPA as a result of the Alabama Power litigation. It avoids the
possibility that dissimilar sources, like a power plant and an
adjacent coal mine, will be considered as the same "source" because
of common ownership.
The legislative history reference therefore suggests that
aggregation by SIC code should be done in a manner consistent with
established NSR procedures. Accordingly, any equipment used to
support the main activity at a site would also be considered as
part of the same major source regardless of the 2-digit SIC code
for that equipment. For example, an automobile manufacturing plant
may consist of a foundry (SIC group 33), a power plant (SIC group
49), and an assembly plant (SIC group 37). Assume that the
equipment is situated at the same site, under common ownership, and
that the foundry and power plant are used solely to supply the
assembly plant. In this example, all three activities would be
considered to be part of one major source. However, if less than
50 percent of the output of the foundry was dedicated to the
mentioned auto assembly plant, it would be considered as a separate
source. If the power plant supported both the foundry and the
assembly plant, it would be considered part of the source that
consumes the largest percentage of the power generated.
The EPA solicits comment on whether or not to combine sources
according to 2-digit SIC code when determining if those stationary
sources constitute a major source under the Title V permit program.
The Amendments require all major stationary sources to be
permitted, even if the Act does not impose other substantive
requirements on the facility. For example, in some States there
are existing major stationary sources in attainment areas for which
there are no applicable emission limits in a SIP. Title V requires
such major sources to obtain a permit although, under appropriate
circumstances, States may choose to issue general permits to reduce
the paperwork burden.
Section 112 requires that EPA publish a list of major and area
source categories emitting one or more of the listed hazardous air
pollutants before EPA sets standards that may apply to their toxic
emissions. Title V requires major sources to obtain a permit, even
if a MACT standard has not yet been promulgated and the source is
otherwise unregulated under the Act. Even so, the permitting
process for many of these sources will be meaningful. Those
undergoing construction, modification, or reconstruction will be
subject to new substantive controls pursuant to section 112(g). It
is unlikely that major sources to which section 112 would be
applicable would not be regulated elsewhere under the Act. That
is, many of the pollutants regulated under section 112 are also
VOC's or particulate matter and are regulated by SIP regulations
designed to implement the ozone or PM-10 NAAQS. As discussed more
fully in section V.E., Title V permits will also be the vehicle
that a permitting authority uses to codify emission limits and
monitoring requirements proposed by sources to meet the early
reduction requirement under section 112(i)(5), which defers
application of MACT.
The EPA also solicits comment on whether the Agency should
exempt from permitting requirements those sources that are "major"
by virtue of the quantity of their emissions of particular
pollutants, but whose emissions are not in any way actually
regulated by a standard or other requirement under the Act.
Arguably, issuing permits for such sources would serve no useful
purpose under the Act.
Potential Emissions: In determining whether the amount of
emissions from a stationary source will qualify the source as major
and subject to Part 70, EPA will rely on the concept of "potential
to emit" [302(j), relevant sections of Part D of Title I, and
112(a)(1)]. In so doing, EPA will determine potential emissions
using the maximum capacity of a source to emit a pollutant, taking
into account any federally-enforceable physical or operational
limitation on that capacity (including any air pollution control
equipment).
Including the federally-enforceable limitations on a source in
the definition of potential emissions appears to create a circular
definition problem. A source which enforceably restricts its
emissions below the threshold for major stationary sources may be
able to exempt itself from the permitting requirement, assuming no
other provision of the Act captures that source in the program.
However, the source seeks to exempt itself from one of the very
programs capable of making enforceable the limits that create the
exemption, but must first meet all substantive procedures and
requirements in the process.
States may address this question using several techniques.
They may decide not to include such operational limits in the
definition of major stationary source for their operating
permitting program, thereby assuring that such sources are
permitted. A program might be able to permit such sources using
general permits designed to impose capacity limits on a category of
sources generically. States may then issue such sources State
operating permits, without subjecting them to the federally-
approved permit program, and submit those State permits as SIP
revisions to make the limits federally enforceable. Alternatively,
States may choose to submit their State operating permit programs
to the extent that they focus on smaller sources to EPA for
approval as a SIP revision. To be approved by EPA, a program must
meet the requirements set forth in the requirements EPA articulated
in its approval of the definition of "Federal enforceability" in
the NSR program [see 54 FR 27274 (June 28, 1989)]. This would then
create a framework under which federally-enforceable permits could
be subsequently issued by the States to limit the potential to emit
of borderline sources without a need for case-by-case EPA approval.
The EPA also takes comment on the possibility of allowing such
sources the option to submit to the appropriate permitting
authority (with a copy to the EPA Regional Office) a commitment
containing specific physical or operational conditions that would
restrict the source's potential emissions to a level below the
applicability thresholds stated in 70.3(a). It must be signed by
a responsible officer of the source with authority to make legally-
binding commitments for the source. A commitment of this type must
ensure that participating sources conduct adequate monitoring and
submit monthly reports describing pollutant emissions to the
permitting authority. The permitting authority and EPA could then
continually verify the source's compliance with its commitment, and
the source would not be required to obtain a Part 70 permit.
The commitment must include an agreement that the source would
submit a Title V permit application within a short time (e.g., 30
days) after it determines that its emissions exceed the appropriate
Title V applicability threshold for the previous 12-month period.
Failure by a source to meet its agreement and submit a Title V
permit application would make the source subject to appropriate
enforcement penalties.
In addition, comment is solicited on: (1) applicable methods
for ensuring the Federal enforceability of such commitments, (2)
ways of providing adequate public review and comment on these
commitments, and (3) ways that State programs can cover the costs
of administering such a program.
(2) Section 70.3(b)- Source Category Exemptions
Section 502(a) authorizes EPA, consistent with applicable
provisions of the Act, to exempt one or more source categories, in
whole or in part, from the requirement to have a permit. The EPA
must determine that compliance with the permitting requirements is
infeasible, impracticable, or unnecessarily burdensome on such
source categories. The EPA may not exempt any major source from
the permit requirements.
The EPA proposes to use the authority available under section
502(a) to defer initially the applicability of the Title V program
to all sources that would otherwise be subject but are not major or
affected sources under the Act. The EPA finds that without this
deferral, compliance by all these nonmajor sources with the
permitting requirements would be "impracticable" and "infeasible"
within the meaning of Section 502(a). This finding is grounded in
EPA's judgment that the initial years of the program will see EPA
and the States significantly burdened by thousands of permit
applications for major sources. This is so in part because the Act
greatly broadens the definition of major source for Title V
purposes to include relatively small sources for the nonattainment
and the toxics provisions. Nationwide, EPA estimates that over
34,000 sources are included in the definition of major source.
Dealing with these applications, at a time when the
regulations are new and untried, is likely to tax Federal and State
resources up to or beyond their limits. Limited numbers of
qualified staff will be available, and in heavy demand by sources
and permitting authorities alike. State and local agencies will be
challenged to expand rapidly while maintaining effective management
of programs and personnel. This initial wave of permitting will be
difficult for permitting authorities. Creating the initial permits
will require far more attention than the subsequent processing in
later years of permit renewals and modifications, which will often
involve changes to only some aspects of the initial permits, or no
changes at all.
Including the thousands of nonmajor sources covered by section
502(a) would greatly increase the workload on EPA and the State,
with relatively minor air quality benefits, and at a time when they
will be strained beyond capacity. This conclusion is based on
EPA's judgment and experience in implementing new programs, most of
which have not approached the scale of the permit program. The
EPA's understanding of the number of nonmajor sources is
preliminary, since the Agency has had little time between enactment
and this proposal to study the coverage of the program in detail.
Although EPA believes the current showing (as discussed in more
detail below) amply supports this proposal (especially in light of
the observation from Alabama Power that a deferral requires far
less justification than an outright exemption, 636 F.2d at 360, n.
86), EPA requests any more detailed information and comments on its
conclusion that including all sources in the permitting process
during the initial glut of application processing would be
impracticable and infeasible.
For several reasons, initially excluding minor sources poses
few risks to air quality progress. Nonmajor sources emit less than
major sources. Concentrating resources on major sources during the
first phase of the program will make efficient use of those
resources. Not only will the sources deferred from the program not
be significant contributors to pollution impacts, many of them will
still be covered by Federal regulations under the Act. Nonmajor
sources will be subject to NSPS or existing national emission
standards for hazardous air pollutants (NESHAP) regulations that
generally already contain many of the same monitoring,
recordkeeping, and reporting requirements that would apply to major
sources and represent one of the major benefits of the permit
program. Therefore, permitting these sources is less urgent than
permitting major SIP sources. As stated above, a State with an
ozone SIP that relies on emission reductions from nonmajor sources
will have to make a special showing to defer such sources from the
program. Finally, it would be especially burdensome on small
businesses and small governments to force them through this program
during the time when the States and EPA are gaining experience in
implementing new programs under Title V. Small businesses and
small governments do not have the same legal and technical
resources that are sometimes necessary to handle successfully a new
program. Thus, EPA finds that permitting such nonmajor sources
during the first 5 years of the program would be unnecessarily
burdensome on those sources and impracticable to the States.
The EPA further proposes to end automatically the exemption
for these nonmajor sources on or before a date 5 years from the
effective date of the permit program in the State (approval of
either a Part 70 or Part 71 program). In deciding which of these
categories should continue to be exempted, the EPA will consider
the relative administrative burden associated with reviewing the
prospective category and whether and to what extent this burden
would be acceptable. In determining acceptability, EPA will
consider the possibility of using general permits or other
alternatives to permitting each source individually. The EPA
solicits comment and information concerning which source categories
might be especially appropriate for permanent exemptions
(notwithstanding the possible use of general permits), such as
asbestos demolition and renovation operations under the NESHAP
program and woodstoves under the NSPS program. The Agency also
asks for comment on any other criteria that should be used to judge
the effect of permanently deferring nonmajor sources, including the
burden on sources and permitting authorities, and the aggregate
effect on air quality of any permanent exemption.
Today's proposal to defer the initial applicability of
nonmajor sources is limited in two important respects. First, the
initial deferral does not automatically apply to sources which
otherwise qualify as a subject source based on emissions of a
pollutant for which its area of location is classified as
nonattainment. Typically, this will involve ozone nonattainment
areas. A permitting authority may exempt nonmajor VOC and NOx
sources from its program in those areas only if the authority
submits to EPA an inventory of such sources and demonstrates that
the State can assure compliance with its nonattainment area SIP
obligations without permitting such sources during the first 5
years of the program. The EPA must approve the deferral for such
sources. The EPA also solicits comment on the appropriateness of
limiting the scope of the nonattainment exemption demonstration to
only the larger of the nonmajor sources (i.e., no demonstration is
needed for deferred applicability if nonmajor sources are below a
certain size) otherwise subject to Title V or only those that would
not qualify for general permits.
The deferred applicability of certain sources would not
preclude a source from requesting and receiving a Part 70 permit.
The EPA proposes that States allow into the operating permit
program sources wanting to participate. Some companies have
business reasons to seek an operating permit. For example, a
lender may wish to determine that air emissions from a facility are
permitted under the law. As a result, there may be sources that a
permitting authority determines does not need a permit for air
pollution control purposes, but which have independent business
reasons to seek operating permits. In such cases, the Agency also
strongly urges the use of general permits (as discussed below) to
minimize any undue burden.
Finally, the Administrator reserves the right to restrict the
presumption for the deferred applicability of nonmajor sources for
any sources subject to a standard under section 112 which is
promulgated after the final date of these regulations. The EPA
would decide during the rulemaking process for the new section 112
standard how the Title V program would apply to those affected
sources which are nonmajor.
In connection with the deferral of nonmajor sources from the
program for the first 5 years, EPA is soliciting comment on the
waiver of EPA authority to review the permits for such sources if
States choose to include them in the program. Some States may
decide to include some or all nonmajor sources in their permit
programs despite EPA's deferral. Section 506(a) authorizes States
to adopt additional permitting requirements not inconsistent with
the Act. Section 505(d) authorizes EPA to waive the requirement
that the permitting authority notify EPA or neighboring States of
each permit for nonmajor sources. The EPA could use this authority
to reduce the administrative burden on the permitting authority,
EPA, and the neighboring States. The EPA invites comments on the
advantages and disadvantages of this approach. The proposed
regulations do not provide for such a waiver, under the assumption
that most States will take advantage of the deferral for nonmajor
sources.
In no instance would affected sources under Title IV of the
Act be eligible for an exemption from the permitting requirements
since section 408(a) provides that permits shall be the vehicle for
implementation of the acid rain requirements of the Act. The
Agency anticipates that most affected sources under the acid rain
program, with the possible exception of voluntary opt-ins or
transfer sources, would be considered "major" under some other
title of the Act and would not be eligible for exemption from the
operating permits program.
(3) Section 70.3(c) - Emissions Units and Part 70
Sources
This section requires that State programs assure in the
permitting process that all emissions units at a major source will
comply with all applicable Act requirements for their emissions of
all pollutants regulated under the Act [504(a)]. Including all
these emission units in the permit does not mean that permits must
impose emission standards or limits on all such units. The permit
must impose any "applicable requirements" that are federally
enforceable and apply to those emission units. The permit
application must identify all units in the major source, however,
and the permitting authority's fee program should account for the
emissions of regulated pollutants from all such units.
Accordingly, all the activities emitting regulated pollutants
at the major source must be addressed in the application for a
permit, even though only one emissions unit or subset of units has
triggered the Title V permitting requirement. Conversely, the
Title V permit need not contain limits for emission units not
otherwise regulated under the Act (e.g., not regulated by the SIP
and/or under sections 111-112).
Some States prefer to permit by emissions unit, especially at
large sources with many emissions units. As long as the collection
of individual emissions unit permits assure that all applicable
requirements would be met which would be required under a permit
for the whole source, and the State permits the entire source
according to the Act's schedule, the State may permit each unit
individually, or in groups within a source. Where feasible, the
entire facility should be permitted at one time. States are
encouraged to permit at least all logical or similar emissions
units at the same time.
The determination of whether a source, or group of contiguous,
commonly-controlled sources within the same 2-digit SIC code as
described earlier, is a major source requiring a permit depends on
the magnitude of emissions from the source or set of sources. If
a source or group of sources has several emission units which the
State does not regulate and subsequently permit, the State's
application process must identify them if the regulated and
nonregulated emissions of applicable pollutants together would make
the source major, and the State's fee schedule must account for the
cost involved with surveying the source's nonregulated emissions of
regulated pollutants (see below). One way to implement such a
program may be to issue each source a permit with sourcewide
information and general requirements, and then incorporate more
detailed individual emissions unit permits that are issued to cover
those units specifically regulated under the Act. If a nonmajor
source is required to get a permit solely because it is regulated
under an NSPS or a NESHAP, the permit must include only those units
covered by the NSPS or NESHAP. For example, consider a saw mill
containing an oil-fired boiler subject to an NSPS, an older wood-
fired boiler, and various wood-working equipment. If emissions for
the source as a whole are not large enough to meet the threshold
for a major source, the permit must include only the NSPS boiler.
This section also clarifies which pollutants must be included
in the permits of sources subject to Title V. As under existing
EPA policy developed in the NSR program [45 FR 52676, August 7,
1980], if one or more regulated pollutants emitted by a source
triggers the requirement to have an operating permit, the permit
must account for all the pollutants regulated under the Act emitted
from that source, even if those pollutants do not themselves meet
the applicable "major" threshold under the Act. This is
appropriate since Part 70 permits must assure compliance by the
source with each applicable standard, regulation, or requirement
under the Act and not just the ones for which the source has major
emissions [504(a)]. For example, a VOC source in a severe ozone
nonattainment area that has the potential to emit 30 tpy VOC is a
major stationary source under Part D of Title I and required to
obtain a permit. If that source also has a small process boiler
which has the potential to emit only 25 tpy of SO2 in an SO2
attainment area, the boiler must also be included in the permit, at
least for the purposes of emissions information and fee
calculation, even in the unlikely event the SIP imposes no limits
on that boiler's operation.
The EPA also wishes to clarify that NOx emissions, as well as
nitrogen dioxide (NO2) emissions, are included under the definition
of "regulated pollutant." The NSPS contains restrictions on NOx
emissions [40 CFR 60.44]. The acid rain program also regulates
NOx. Therefore, NOx emissions are included in the definition of
"regulated pollutant" under section 502(b)(3)(B)(ii) [40 CFR 50.11]
and in determinations of a source's potential to emit, and fee
calculations must account for all NOx emissions.
(4) Section 70.3(d) - Fugitive Emissions
This section specifies that, once a source is found to be
subject to the Title V permitting requirements, fugitive emissions
at a subject source are to be included in the total emissions of a
source for all purposes of permitting, including collection of
fees.
The EPA is also proposing to consider fugitive emissions in
determining if a source would be major with respect to section 302
for only those source categories that have previously been
subjected to the rulemaking required in section 302(j) [45 FR 52676
(August 7, 1980)].
D. Section 70.4 - State Program Submittals and Transition
(1) Section 70.4(a) - Date for Submittal
This section of the regulations requires States to submit
their operating permit programs to EPA for approval within 3 years
of enactment (i.e., by November 14, 1993) [502(d)(1)]. This
deadline is a fixed date and does not depend on the date EPA
promulgates the regulations in this proposal. This section of the
regulations also requires a State to revise the existing, approved
operating permit program and submit it to EPA for approval within
1 year of any revision to the Part 70 permit program requirements
that EPA determines would necessitate such a change. Permitting
programs that would be implemented within a State, such as by local
agencies, would have to be designated by the Governor and submitted
within the 3 years after enactment.
(2) Section 70.4(b) - Elements of the Initial Program
Submission
There are certain minimum critical elements that need to be
included in an acceptable program when it is submitted to EPA for
approval. The submittal must include the State-adopted regulations
establishing the permit program and the procedures the permitting
authority will use to apply the permitting regulatory requirements.
The EPA also solicits comment on whether the State statutes that
authorize the regulations and provide for judicial review of final
permit decisions should also be part of the submittal.
The submittal must include a legal opinion that the permitting
authority has the authority to carry out the program and perform
the following tasks. First, the permitting authority must be
capable of issuing permits and establishing a fixed term of 5 years
for affected sources under the acid rain program, and a fixed term
for each permit for all other sources, except certain municipal
waste combustors, not to exceed 5 years. Second, permitting
authorities must assure that the permit contains each of the
emission limits and any other requirements that apply to the source
from the SIP and other Act requirements. Specifically, the
enabling legal authority must allow the permitting authority to
impose and enforce all Federal requirements (including those to be
implemented through any applicable FIP). Third, the permitting
authority must be able to terminate the permit if necessary or
revoke and reopen the permit to modify its content for appropriate
reasons [70.7]. Fourth, the permitting authority must be able to
enforce the requirement to obtain a permit, to enforce the
provisions in the permit [70.11], to collect applicable permit fees
applied to the source [IV.I.], to collect civil penalties assessed
for each source's violation of its permit, and to apply appropriate
criminal penalties as a result of permit violations. Fifth, the
permitting authority must be able to provide public access to the
permit application, the permit itself, the compliance plan, and
reports, except that confidential information may be submitted
separately and not be made available to the public. Sixth, the
permitting authority must agree to comply with program-specific
regulations such as those established under Title IV. No permit
program will be approved in whole or in part, unless it is adequate
to ensure timely and effective implementation of, and compliance
by, affected sources with all requirements established under the
acid rain program. Program adequacy shall ensure adequate
resources to support inspections necessary for ensuring compliance
by affected sources with emissions monitoring requirements of Part
72 [502(f)]. Finally, the permitting authority must also be able
to ensure that the source is notified that no Title V permit has
been issued if EPA objects to it within the timeframe allowed for
EPA review of permits.
The submittal must contain the permit application form or
forms to be used, the criteria the State will follow in determining
if a source has provided the required information and filled out
the application completely, and the procedures the State will use
in processing the applications in an expeditious manner. The
Agency currently intends to require the use of forms for the acid
rain program by States with approved permit programs. Forms can be
revised periodically as the State program develops without the need
to go through rulemaking every time (i.e., through implementation
agreements). The EPA also recommends that the submittal contain
certain procedures for insuring compatibility with the national
data system; the Aerometric Information and Retrieval System
(AIRS). The requirement for completeness criteria is in 70.5.
The procedures for processing applications must be in accordance
with the requirements in 70.7 for permit issuance, renewal,
revision, and reopenings.
The submittal must contain a demonstration that the revenue
collected under the permit fee program is sufficient to cover the
reasonable direct and indirect costs of developing and
administering the permit program. The demonstration should include
sufficient revenue to fund air pollution control agencies which do
not issue permits directly but carry out permit-related activities.
The permit fee program is discussed under 70.9. This
demonstration must be accompanied by a statement from the Governor
or his designee (e.g., local official in the case of a local agency
program) that the program has adequate personnel and funding to
implement the program. The statement need not provide certain
details such as those related to the number of positions. The
statement must describe the air quality program and where the
permitting function fits in, details about the personnel who will
administer the program, and a cost estimate for developing and
administering the program for the years covered in the transition
period after the program is approved.
The EPA is also proposing to require as part of the program
submittal a commitment that the permitting authority submit to EPA,
at least annually, information about enforcement activities
relevant to the permit program. This information would include but
not be limited to the number of criminal and civil enforcement
actions commenced and concluded by the permitting authority, the
penalties, fines and sentences obtained in those actions and the
number of administrative orders issued. This information is
crucial for EPA to be able to fulfill properly its oversight duties
regarding whether the program is being properly implemented and
enforced.
The EPA is concerned that lapsing of permits or the conditions
and terms of permits would cause serious enforcement problems and
leave the State and EPA without important monitoring information
that sources will be required to submit under the terms of the
permit. For example, the particularized and detailed control
requirements in the permit would become unenforceable the day the
permit expired; States and EPA would be able to enforce only the
requirements in the underlying regulations. Thus, if the source
had submitted a timely and complete application, it could continue
to operate in the event the State failed to act on the application
in a timely manner, with possibly no clear control limitations
applying to the source.
The EPA is proposing to address this potential problem in
several ways. First, under the proposed regulations, sources are
required to submit their application for a permit renewal 18 months
before expiration of the permit. This is the maximum allowed time
period for action on the permit by the permitting authority. This
time limit should be reduced correspondingly to reflect permits
with terms of less than 5 years or to reflect situations where the
permitting authority must issue permit renewals in less than 18
months. In no event can the deadline for renewal applications
occur so as to allow less than 6 months for processing. Second,
the proposed regulations allow EPA to issue a permit itself if the
permitting authority has failed to act on the permit during the
time allowed to do so.
Finally, EPA is proposing to require that the State permit
program include a requirement under State law that, in the event
that a timely and complete application for a permit renewal is
submitted to the permitting authority before expiration of the
permit term, (1) the permit itself shall not expire until the
renewal permit has been issued or denied, or (2) the permit can
expire but all its conditions and requirements shall remain in
effect until the renewal permit has been issued or denied. The
first option within this third approach, which EPA encourages
States to adopt, is consistent with the way that Federal permits
issued under the Federal Administrative Procedure Act remain in
effect if a timely and sufficient application for renewal has been
submitted [5 U.S.C., section 558(c)]. The EPA is concerned,
however, that having the permit itself remain in effect may not be
allowed under some State administrative procedure acts. The EPA is
therefore proposing to give States the option of adopting, under
State law, a requirement that all terms and conditions of the
permit remain in effect after the permit itself lapses if a timely
and complete application has been submitted. The substantive
effect of choosing one option or the other should be minimal at
most. The EPA solicits comment on these and other proposed ways of
dealing with the lapsing permit problem.
The EPA believes that a transition plan for processing the
first wave of permits is also a necessary part of the State program
submittal. This plan should provide a phased schedule for acting
on the initial submission of all permit applications during the
first year after program approval. The EPA solicits comment on
other acceptable strategies for initially processing permits and
for keeping the original information current and appropriate for
processing.
To meet the Title V requirements, the transition plan would
need to provide that the initial permit applications be submitted
no later than the first year after program approval, and that State
action on them be spread out over a period up to 3 years after
program approval, with approximately one-third of the applications
being acted on in each of the 3 years. The State's transition plan
will likely need to require some applications to be filed before
EPA's approval of the program so that the State can act on the
first third of the applications within the first year after program
approval.
When the permitting authority plans their timetable for
initial issuance of Title V permits, they should be aware that
initial SO2 permits for Phase II acid rain affected sources must be
issued by December 31, 1997. Acid rain permit applications for NOx
are due on January 1, 1998 [408(d)(3)]. States should also be
aware that EPA proposes to require that any permit application
submitted which contains an early reduction demonstration for
hazardous air pollutants according to Part 63, Subpart D
regulations must be issued or denied within 9 months of receipt of
the complete application. This proposed procedure is discussed
further in section V.E.(4) of this preamble. In addition, EPA
proposes to require States to submit a timetable for phasing in the
reissuance of Part 70 permits in the future upon their expiration.
The EPA believes the most important first step in terms of
program development is eliminating legislative impediments to
meeting operating permit program requirements. New authority may
be needed to develop regulations, issue permits to sources
(including noncomplying ones), charge fees and retain them in the
air agency, collect penalties, hire sufficient levels of personnel,
and provide for adequate public participation (including the
opportunity for public hearings). Since many State legislatures
meet only periodically, the schedule for legislative sessions could
be a critical factor in States obtaining the needed authority in
the appropriate time period. States need to consider this possible
constraint and take whatever action is necessary as early as
possible to obtain the needed authority and eliminate any
complications that could be caused.
While in the process of developing legislative authority for
an operating permit program, the State may also want to consider
including legislative authority necessary to implement other titles
of the Act. For example, to obtain approval for the acid rain
portion of the operating program, State legislative authority must
be sufficient to ensure that no permit will be issued that is
inconsistent with the requirements of the acid rain program
requirements of the Act, of Part 70, or of Parts 72 through 78
[408(A)]. State law or regulation should limit the State's
authority to modify acid rain program requirements, and the State
authority should ensure adequate inspection resources to ensure
compliance with emissions monitoring and compliance program
requirements. A certification from the Attorney General or other
authorized official that adequate legal authority exists will be
needed to support the permit program submission.
Another important aspect of a State operating permit program
will be to ensure that the permitting authority is capable of
carrying out the program. This will primarily involve hiring and
training of personnel, along with support functions, such as
larger office space and increased administration capabilities.
States will face early program-building demands, the degree
depending on the State's current involvement in operating
permits. The demand for this infrastructure will increase when a
State wishes to submit a program early. Efforts to ensure this
capability is one of the first steps a State should make. Grant
funds provided for by section 105 of the Act have been provided
to support program build-up. These funds are meant to give
programs in part the boost needed until permit fee provisions
become effective and State permitting efforts become self-
sufficient through the permit fee revenues. The EPA solicits
comment on other ways to accomplish "ramp up" of State
capabilities. These might range from interim program approvals
to an initial registration of subject sources coinciding with an
early partial fee collection [IV.I.].
In part, section 506 specifies that nothing in Title V shall
prevent a State from establishing additional permitting
requirements as long as they are not inconsistent with the Act.
Accordingly, States may wish to include requirements from State
control programs in an operating permit that are not required by
Federal law. However, EPA does not intend to participate in any
permit actions that do not arise from federally-recognized permit
requirements. For example, the State may have a program designed
to enforce specific ambient concentrations of toxic air emissions
which as yet have no counterpart under Federal law. The question
becomes whether, and to what extent, those provisions translated
into more rigorous emissions limits on the source become
federally enforceable (i.e., enforceable under the Act by the
United States or citizens) if the State includes them in a permit
and EPA does not veto that permit.
The EPA is proposing that only those provisions of a permit
identified as being required under the Act or necessary for its
implementation will be federally enforceable. Each provision,
required or needed under the Act, will have to be clearly marked
for EPA to consider it federally enforceable. EPA does not
intend to routinely sort out provisions relating to State
programs included in operating permits, unless those provisions
bear no reasonable relation to the purposes or provisions of the
Act. To promote this result further, EPA is proposing to require
an explicit statement of the regulatory basis for all Title V
permit conditions.
The EPA does not believe that Congress intended Title V to
be a forum for the State to establish any additional requirements
that would become federally enforceable. The primary purpose of
the Title V permitting program is to assure that subject sources
comply with all requirements of the Act. State limits related to
the requirements of the Act include transactions related to
emissions trading or offsets for NSR or to an applicable Federal
standard (e.g., those promulgated under section 111 or 112 of the
Act). Additional State limits can clutter the Title V permit
with conditions that may confuse enforcement activities and limit
the operational flexibility of the source. The permitting
authority should segregate those permit conditions that are
federally enforceable so that EPA oversight can be focused on the
most critical concerns in the limited time afforded for EPA's 45
day review.
On the other hand, a State may have an interest in
maintaining a permit as a comprehensive statement of the source's
air pollution control obligation. The proposed regulations allow
a State to do this. If it wants to take this approach, it would
be the option of the permitting authority to identify and attach
to the Part 70 permit those provisions which are to be enforced
by the State but not EPA.
Public comment is solicited on how to resolve two additional
issues related to this principle. These two issues involve
whether, and to what extent, EPA can or should approve, (1) more
expansive source coverage than required by Title V; and, (2)
State provisions which limit the flexibility of source owners or
operators to less than that provided for in Title V.
The first issue may arise quite frequently, since most
existing State and local operating permit programs typically
apply more broadly than to just the major sources and others
covered by Title V. The EPA proposes to approve a broader
program containing more sources or source categories than
required by EPA if a State submits one, but EPA reserves the
right to promulgate a narrower program for EPA implementation
should the State default on its implementation obligation. The
EPA believes that this proposal is fully consistent with section
116, which permits States to adopt more stringent air pollution
requirements than required by the Act. It is also consistent
with section 506(a), which states that nothing in Title V shall
prevent a permitting authority "from establishing additional
permitting requirements not inconsistent with [the] Act." The
EPA may also opt to waive review of some or all of the permits
for the additional sources under a more inclusive State program,
depending on the degree of administrative burden, or for other
reasons [505(d)]. Comment is solicited on whether, and to what
extent, EPA should approve broader State programs.
The second issue concerns whether State operating permit
programs can differ from Act requirements aimed at protecting
sources once they meet certain requirements. In other words, may
States be "more stringent" than Title V by removing some
protections that Congress apparently intended to ensure.
Examples of these provisions include: (1) section 502(a) which
shields sources from the requirement to have a valid Title V
operating permit, if they have filed a timely and complete
application but have not yet received their permits (i.e.,
application shield); and (2) section 502(b)(10) which contains
the requirement for States to allow sources operational
flexibility within permits.
As noted previously, section 116 of the Act authorizes
States to be more stringent than EPA rules in their requirements,
as long as they relate to control of air pollution. Section
506(a) perhaps may qualify this long-standing authority, however,
by stating that nothing in Title V shall prevent a permitting
authority from establishing additional permitting requirements
"not inconsistent with the Act." Moreover, EPA believes that
even section 116 would not allow the Agency to grant complete
program approval of a State permit program that does not meet all
the requirements of section 502(b), including the requirement in
section 502(b)(10) that States allow certain changes within
permitted facilities without requiring that the permit be
revised.
(3) Sections 70.4(c), (d), and (e) - Partial Programs,
Interim Approval, and EPA Review of Program
Submittals
These sections of the regulations describe the type of
approvals, other than full approval, that EPA may give a State
permit program. These approvals are all subject to a public
comment process, and EPA is required to take approval actions (as
appropriate) within 1 year of State program submittal. There are
three related concepts which EPA is proposing to use for
implementing the above position on partial program submittals:
full approval, partial programs, and a whole program in the
State.
Full Approval: The EPA will grant full approval only if a
program meets all the requirements specified in the Part 70
regulations. For full approval, all program elements required by
Part 70 will have to be met to an acceptable degree, and stronger
elements of a program cannot compensate for one or more weak
areas.
Partial Program: A partial program is one that does not
cover all the sources in a State, because the program is limited
geographically to a local program or the program does not cover
certain source categories, or both. The EPA, in general, intends
to grant full approval to partial programs which are limited in
their geographic coverage if they meet all the requirements of
Part 70. However, States must provide compelling reasons for not
taking review responsibility for all subject source types in
order for EPA to grant approval for a source category-limited
program. In no event does EPA intend to approve as a partial
program one which would permit the source for some but not all of
the applicable requirements under the Act.
Under section 502(f), for EPA to approve a partial program,
minimum requirements must be met, specified in section 502(f),
with regard to Titles I, III, IV, and V. A partial program, at a
minimum, must apply and ensure compliance with "this title"
(i.e., Title V) and each of the following: (1) all requirements
established under Title IV applicable to 'affected sources.' (2)
all requirements established under section 112 applicable to
'major sources,' 'area sources,' and 'new sources.' (3) all
requirements of title I (other than section 112) applicable to
sources required to have a permit under this title." The EPA
thus interprets the language in section 502(f) to mean that a
"partial" program is one that is a full program (i.e., standard
application, permit fees, public participation, inclusive permit
provisions, fixed term, etc.) for those sources or areas to which
the program applies.
Whole Program: A whole program is a program that meets the
requirements of Part 70 and covers all the Part 70 sources in the
entire State. For the State to avoid sanctions under section
502, the State must have an approved whole program [502(d)(2) and
(3)]. It is possible for a State under this proposal to obtain
approval for a whole program by submitting several fully-
approvable partial programs. The combination of these programs
must permit all the Part 70 sources in the State consistent with
Part 70. This interpretation of section 502(f) avoids the
confusion created when two permitting authorities permit the same
source for different Act requirements. In a State relying on a
combination of partial programs, EPA will not approve a whole
program until it has approved all the partial programs covering
all the Part 70 sources in the State.
The EPA will act on any partial program as it is submitted,
consistent with the 12-month deadline in section 502(d)(1). The
EPA will fully approve a partial program if it meets Part 70. A
State may submit a partial program, but fail to submit a whole
program. If EPA approves the partial program or several partial
programs within the State, those programs define the permitting
authority for the sources they cover. The State remains subject
to sanctions, however, for failure to submit a whole program.
Ultimately, section 502 provides that EPA will become the
permitting authority for those sources not covered by any of the
partial programs in the State.
Interim Approvals: Section 502(g) allows the Administrator
to grant interim approval by rule to a State permit program if it
"substantially meets" (but not fully) the requirements of Title
V. Interim approvals automatically expire on a date set by the
Administrator not later than 2 years after such approval and may
not be renewed. At the time of interim approval, the
Administrator shall specify the changes that must be made before
the program can receive full approval. The 1 year for permit
application submittal and 3 years for permit processing do not
start until the program receives full approval.
The EPA sees interim approval as being a good mechanism to
allow States to gain early permitting experience while working on
the final fully approvable program; to begin acquiring, through
fee collection, the necessary resources for developing and
implementing a full program; and to expedite the implementation
by States of certain Act requirements (e.g., the granting of MACT
extensions for early reductions) [V.E.]. Interim approvals are
appropriate, however, only where the relevant deficiencies are
not critical over the 2-year (or less) period of time before a
fully approvable program is due. If a program is not sufficient
to receive interim approval, EPA will disapprove the program.
The EPA's interim approval or disapproval will take place within
1 year of program submittal as indicated by 70.4(e). Like full
or partial approval, interim approval triggers the 12-month
requirement for submission of permit applications and a 3-year
phase-in for processing the applications [IV.D.(2)].
The EPA believes that the "substantially meets" test allows
the Agency considerable discretion in judging where a State
program could fail to fully meet Title V yet still be adequate to
produce viable permits. The EPA believes, as a minimum, the
purposes of the permit program could be fulfilled if the
following minimum criteria for interim approval are met:
(a) Adequate Fees. A program must have the capability to
collect adequate fees [presumptively $25/ton per regulated
pollutant per year (1990 basis)] to fund development of the
State's permit review program and its capabilities to implement
it.
(b) Applicable Requirements. The State must have the legal
authority to assure that those sources in the interim program
will comply with all applicable requirements under the Act. This
must include, at a minimum, some type of monitoring and reporting
provisions. Otherwise inadequate permits issued could be a
damaging legacy over the term of the permits.
(c) Fixed Term. The program must provide for a fixed
permit term that would not exceed 5 years.
(d) Public Participation. The program must provide for
public notice of and an opportunity for public comment and a
hearing on draft proposed permits.
(e) EPA Review. The program must allow EPA an opportunity
to review each proposed permit and to object to its issuance.
(f) Permit Issuance. The program must provide that the
proposed permit will not be issued if EPA objects to its
issuance. A State might qualify for this by formally agreeing to
"reopen for cause" any State-issued permit when EPA would object
to it from a Title V standpoint after the State had issued the
permit pursuant to its existing procedures.
Public comment is solicited on which of those critical
program elements that are required for full approval need not be
met for interim approval. Any additional criteria beyond the six
proposed should represent a deficiency that this approach is
consistent with section 502(f). Operating permits are intended
to incorporate the provisions in the existing applicable SIP
(including those in a FIP) at the time the permit is under
review. The EPA will approve permits with certain more stringent
provisions than the explicit emissions limitation contained in
the SIP, provided that these provisions implement other
applicable federal requirements (e.g. tighter limits to achieve
emissions offsets or early reductions pursuant to section
112(i)(5) of the Act). The Agency will not require the State to
correct SIP deficiencies in permits. As explained in more detail
in section V.B., a SIP demonstration must be periodically updated
as needed to reflect reliance on any tighter conditions of
permits to show attainment and maintenance. As indicated
previously, States under one option can expedite the process
where this would be accomplished by a SIP revision including
several permits in one public notice and through the use of the
SIP processing reforms announced in 54 FR 2214 on January 19,
1989.
(4) Section 70.4(f) - State Response to EPA Review of
Program
The State must correct the deficiencies in programs EPA
disapproves and submit the corrections to EPA within 180 days of
the notice by EPA that the program was disapproved, or within
another time period specified by the Administrator. For interim
approvals, the State must submit corrections to EPA no later than
6 months before the end of the period for which the approval is
granted. These provisions apply even though the State may submit
a program before the end of the 3-year period provided by Title
V.
(5) Section 70.4(g) - Effective Date
The State program becomes effective on the date of EPA's
full, interim, or partial approval.
(6) Section 70.4(h) - Individual Permit Transition
This section addresses how EPA would implement a permit
program, in whole or in part, under a new Part 71 in the event a
State fails to submit or adequately implement an approvable
program. The EPA will issue permits under such circumstances
under a permit program as will be promulgated in Part 71. Once
EPA approves the State program and it is implemented, EPA will
cease issuing permits. Any permits under review or issued under
the Part 71 program will continue under EPA's jurisdiction until
they are replaced by permits issued under the approved State
program. However, after EPA approves a Part 70 program, States
can request delegation of authority to maintain and enforce
previously issued Part 71 permits before their expiration. If
such delegation is granted by the Administrator, the State can
then collect appropriate fees from those sources consistent with
70.9.
(7) Section 70.4(i) - Program Revisions
A program must be revised if EPA determines sometime after
approval of a State operating permit program that the program
inadequately implements the Part 70 program. The State will have
180 days, or a longer time period established by EPA, to revise
the program and submit the revisions to EPA. The Agency might
set a longer time up to 2 years where legislative action is
required at the State level to address problems.
E. Section 70.5 - Permit Application
(1) General
The procedural elements of an approvable permitting program
are essential to its success. The Act provides important
direction with respect to how the permitting process should be
implemented. This section of the preamble, and the two that
follow it, describe EPA's proposed regulations for addressing
these activities. Generally, they are described in the order in
which they arise in implementing the program: the permit
application submitted by the source, the drafting of the permit
by the permitting authority, and the procedural aspects for
issuing and managing permits.
Title V sets forth explicit requirements regarding the
application process. Sections 502(b)(5) and (6) require that
State programs have standard application forms, criteria for
determining their completeness in a timely fashion, and
procedures for processing them. The EPA suggests that States
provide procedures for transmittal of permit application data in
a manner compatible with the national data system. Section
503(b) requires compliance plans for noncomplying sources to be
submitted along with the permit applications. A complete
application must be submitted according to the transition
schedule approved within the program and in a timely way for
subsequent renewals. "Timely" for submittal of renewal
applications has been presumptively defined as 18 months prior to
the permit expiration date, unless some other time is approved by
the Administrator (e.g., situations where the permitting
authority is required to issue permits sooner than 18 months or
where the fixed term of the permit is less than 5 years). Any
complete application must contain information which identifies
the source and its emissions, the requirements applicable to it,
the compliance status of the source and its intended operating
regime, and a certification verifying the truth, accuracy, and
completeness of the submitted information. More information may
be required later by the permitting authority in writing as
needed to complete the development of the Part 70 permit. The
applicant must respond in a reasonable and timely way to maintain
a complete application and the protection that it provides [see
additional discussion in IV.E.(5) and IV.G.(1)].
Additional information may be required for other program-
specific purposes at a later date (e.g., pursuant to specific
substantive program requirements such as for certain sources of
VOC's and NOx subject to the emissions statement requirements for
nonattainment areas as stated in Part D of Title I). Sources of
hazardous air pollutants subject to section 112 attempting to
comply with alternative emissions limits may also need to submit
additional information. In addition, States may require
information to enable implementation of their additional program
requirements related to the Act.
(2) The Permit Application Form
The EPA recognizes that a great range of factors bear upon
what a good application form is and takes an approach which
ensures the submittal of the wide-ranging information needed to
issue a good permit. On the other hand, EPA recognizes that the
amount of information needed can vary greatly depending upon type
of source or pollutant and State and local air quality
requirements. Moreover, the EPA has a philosophy of minimizing
program disruption, to the extent possible. Most States already
have application forms, and some of them are very comprehensive.
Requiring an inflexible national form would likely be disruptive.
The approach to application forms being proposed today recognizes
appreciable flexibility for State programs. This flexibility
extends to the format of the information submitted, as long as
the minimum data elements are collected. In certain instances,
however, needs for national consistency for purposes of oversight
and good data management should prompt the use of standard units
for source parameters. Furthermore, use of the AIRS as a State's
data management system for the operating permits program may
influence application format. A discussion of this is included
in section IV.E.(6).
For these reasons, EPA will not prescribe any one, or few,
forms that address all situations. Consequently, EPA is
proposing a list of minimum data elements that States must
collect with the permit application forms. As long as these data
are included in State forms, the forms will be found to satisfy
these provisions.
The permit application provisions contained in 70.5 were
developed to balance these competing concerns. The key point is
that States have considerable discretion, within a framework that
is rigorous with respect to the types of information required, to
develop application forms that best meet their particular program
needs and policy choices. Some States may meet these
requirements through relatively slight revisions of their current
application forms.
The following is a brief discussion, organized by regulatory
paragraph, of the types of minimal information prescribed by
70.5:
General company information: The applicant must list
appropriate contacts and general background information (e.g.,
company name, location, responsible official, or designated
representative).
Plant description: A description of the plant in terms of
the processes and products involved (including identification by
SIC code) can provide important perspective to the permitting
authority regarding the applicable regulatory requirements.
Emissions related information: Emissions data are of
critical importance to permitting. 70.5(b)(3) describes the
core information needed for permitting. This includes, of
course, direct emissions data regarding the pollutant's emitted,
and their quantities over appropriate periods, and the points
from which these emissions are produced. An adequate description
of emissions necessarily entails submission of emissions related
information on fuel and raw material use, a detailed description
of air pollution control equipment (and citations to the relevant
emissions standards), and limitations on source operator.
Finally, the calculations on which these data are based must be
included to assist the permitting authority in reviewing the
application.
There are, in addition, a variety of decisions to be made
with respect to how these data are addressed in the application.
For example, the inclusion of the list of 189 pollutants, or
groups of pollutants, in section 112(b) presents additional
issues regarding the reporting of regulated pollutants. The EPA
does not propose to mandate submittal of emissions information in
the permit application for nonmajor sources of noncriteria
pollutants. Many States may, of course, choose to require
information about such pollutants, for example, in implementing
their air toxics programs.
A description of emissions points is relevant to a variety
of requirements (e.g., whether emissions are fugitive or stack),
but EPA believes the regulations will allow application forms to
reasonably limit the detail of this requirement where such is
appropriate. For example, VOC emissions might be produced at
many places in a chemical process facility, but an application
might describe these adequately without individually describing
minor emissions points such as valves and flanges.
A significant issue involves whether the application must
include the information needed for ambient impact assessments.
This includes stack parameters (e.g., height, diameter, plume
temperature) and building height. The EPA does not interpret
compliance with the NAAQS to be an "applicable requirement" of
the Act. Therefore, EPA is not including such information within
the minimum data elements for applications unless it is required
by an underlying regulation of the Act (e.g., regulations to
ensure good engineering stack height consistent with section 123
of the Act). As explained further in section IV.F.(3)(a) below,
EPA does not believe that any one permit can enforce the NAAQS,
except perhaps in very limited circumstances. The State should
be able to assess the cumulative impact of permitted sources on
attainment and maintenance of the NAAQS (and increment
consumption under the PSD program). To do this, the State may
choose to collect emissions data related to the source's ambient
impact. However, EPA is not proposing to require States to
collect such information. All applications under current State
operating permit programs must require sufficient emissions
information to allow a State to write a complete and enforceable
permit. Emissions rates must be supplied for averaging periods
appropriate to program needs and consistent with all applicable
requirements. Depending upon the specific emissions limitation
that applies to a source, emissions information may need to be
collected on hourly, daily, and annual bases in order to assure
compliance with emissions requirements or guarantee that
emissions will stay below particular applicability thresholds for
other regulatory requirements. The form of the required
emissions data can also be influenced by other program needs.
For example, all affected units under the acid rain program must
install CEMS to monitor their SO2 and NOx and other emissions
[412].
Other information may also be needed in the permit
application to define: 1) control requirements, such as
requirements that will become effective during the term of a
permit, and applicable test methods (70.5(b)(a); and 2)
reasonably anticipated alternative operating scenarios
(70.5(b)(6).
The EPA recognizes that comprehensive permit applications
for some industrial facilities can be quite large. For this
reason, EPA proposes that States be granted more discretion with
respect to what information is needed and when. For example, the
Agency believes that States may want to permit, and therefore,
receive several discrete applications from certain large complex
sources (e.g., chemical plants) in order to keep the information
current and the review process focused.
The preceding discussion outlines the approach to obtaining
general information for most regulatory provisions. There are,
however, several specific air program functions that might
require additional specialized information. Examples include
alternative emissions limits with respect to MACT, and acid rain
allowance provisions. Even more common program requirements,
such as the NSPS and NESHAP, might require certain additional
information. It is unlikely that a State will wish to develop a
single application form that addresses every possible air
regulatory requirement. The EPA suggests that States follow the
example of numerous current air programs and take a modular
approach to application forms. Under this approach, all sources
would complete the same basic application form, containing the
information on the source and its emissions, as described in this
section. To the extent that specialized regulatory requirements
must be met, additional forms appropriate to those programs could
be prepared and appended to the basic form.
(3) Testing, Monitoring, and Reporting Procedures, and
Compliance Certification
(a) Test Methods. To establish initial compliance with
each air pollution control requirement, each permit application
must presumptively specify a test method. This requirement is
contained in 70.5(b)(4)(ii). A similar requirement also
appears in 70.5(b)(8)(ii). This latter and somewhat redundant
requirement that the permit application specify a method for
determining initial compliance may be satisfied by 70.6(c), and
merely appears in the regulation again to emphasize that there
may be different test methods used for determining compliance
[IV.E.(3)(c)].
The test method for establishing initial compliance will be
the test method in the underlying regulation. If the underlying
regulation is deficient in that it does not contain a test
method, the permit application must suggest a test method. This
is in accordance with section 504 of the Act which requires that
permits assure compliance with the applicable regulation
[IV.E.(3)(c)].
(b) Information Necessary for Implementation and
Enforcement. To implement and enforce air pollution
requirements, it is necessary that all permit applications
specify the underlying monitoring, recordkeeping, and reporting
requirements. This is broadly required by the language in
70.5(b)(4)(i), and also by the compliance certification
requirements under 70.5(b)(8). Note that section 504 of the
Act and 70.6(a)(3)(ii) require that reporting of any required
monitoring be submitted at least semiannually.
(c) Test Methods, Monitoring, and Reporting for Compliance.
Section 70.5(b)(8)(ii) requires the permit application to state
methods to be used for initially determining compliance
monitoring and for determining compliance throughout the term of
the permit, including a description of the monitoring,
recordkeeping, and reporting requirements and test methods to be
used. The method used for initially demonstrating compliance
must be the test method or work practice specified in the
underlying regulations (e.g., the SIP, NSPS, NESHAP, and the acid
rain regulations) as discussed in section IV.E.(3)(a) above. If
the underlying regulation is silent as to the appropriate test
method, the permit, and therefore the permit application (where
possible), must still include, and the reviewing authority must
select, a test method. The EPA will evaluate any new test
methods during its 45-day review period. This review will focus
on any relevant information upon which the State relied in
demonstrating attainment and maintenance of the NAAQS. In the
event that an underlying Federal regulation is later revised to
incorporate a specific test method or monitoring/reporting
procedure, the permit must be revised to incorporate these
requirements upon renewal, unless more than 3 years remains on
the term of the permit, in which case the permit must be
reopened.
Also, to ensure compliance with all the requirements of the
permit throughout its term, the permit, and therefore the permit
application, must specify an appropriate method to be used for
determining compliance. This "compliance method" may be CEMS,
frequent compliance calculations, stack tests, or surrogate
monitoring parameters, such as incinerator temperature or
scrubber pressure drop. In some cases, the compliance techniques
will be the same as the technique used to determine initial
compliance. Periodic monitoring of the operation of the source
or pollution control device may typically be appropriate,
compliance techniques. In the case of a work practice standard,
the compliance technique could consist of a record which
documents continual application of that work practice. In many
cases, the monitoring requirements in the underlying regulation
will suffice for assessing compliance. If the regulation is
silent regarding monitoring techniques, the reviewing authority
will need to specify one, taking into account cost, availability,
reliability and accuracy of the technique, and the averaging time
of the ambient standard. Where the underlying standard is
unclear, an additional consideration would be consistency of the
averaging time of the technique with the applicable ambient air
quality standard.
Where surrogate monitoring parameters are used for
determining compliance, the permit application should provide an
acceptable operating range of monitoring values based on values
achievable during a performance test (i.e., during the initial
compliance test) or based on best engineering judgment.
Operation of the facility outside of these specified monitoring
values would be a violation of the permit and any good operating
practice requirements, if applicable, such as contained in 40 CFR
60.11(d) for NSPS- affected sources.
Where CEMS or emission calculations are chosen for the
compliance method, the resulting data could be used directly to
enforce the emission limit. Therefore, recorded CEMS emissions,
or VOC emission calculations, for example, in excess of the
emission limit would constitute a violation of the emission
limit. Of course, CEMS are not appropriate for use with respect
to some source categories. For other source categories, CEMS are
appropriate or are mandated by the Act (e.g., for acid rain
sources). For those cases, States should explore the possibility
of requiring compliance calculations. Further, until EPA
specifies enhanced monitoring techniques, the choice as to the
appropriate compliance technique remains the primary
responsibility of the permit reviewing authority. In the case of
a work practice, the compliance technique could consist of a
record which documents continual application of that work
practice.
After a source has demonstrated initial compliance in
accordance with the underlying regulations, either the initial or
the compliance technique may be used in the periodic (at least
annual) compliance certifications. It is, however, necessary
that a compliance technique be specified and used to establish
whether compliance throughout the reporting period was continuous
or intermittent, in accordance with the statutory requirements in
Titles V and VII for compliance certification [IV.E.(3)(d)].
(d) Compliance Certifications. As required by
70.5(b)(8)(iii), the permit application must contain a schedule
for submission of compliance certifications. The Act requires
that similar certifications be submitted at least annually.
States should require certifications more frequently for sources
or source categories with a recent history of compliance
problems. The required frequency of certifications should also
consider the frequency of any other reporting requirements, such
as excess emission reports and the Title V requirements in
section 504(a) for at least semiannual compliance reporting.
Under section 503(b)(1), all sources must monitor and report
every 6 months. The State should consider a combined report as
opposed to submission of separate reports.
Section 70.5(b)(10) provides that the certification, as well
as all other documents required under Part 70, must state that
"to the best of the signer's knowledge, information and belief
formed after reasonable inquiry, the statements and information
in the compliance certification are true , accurate and
complete." This language is similar to that in Rule 11 of the
Federal Rules of Civil Procedure, upon which it was modeled. The
provision makes clear that the signer must make a reasonable
(under the circumstances) inquiry before attesting to the truth,
accuracy, and completeness of the information and statements.
(4) Compliance Plans for Noncomplying Sources
In accordance with section 503(b), each permit application
for sources that are out of compliance with applicable
requirements of the Act must be accompanied by a compliance plan
which describes how the source will comply with the applicable
requirements of the Act for which it is not in compliance.
Submission of these compliance plans is also required for permit
renewals and permit modifications, in accordance with 70.7.
Compliance plans must describe the techniques used to achieve
compliance.
As required in 70.5(b)(7), a compliance plan consists of
the following elements:
(a) Description of How Source Will Achieve Compliance.
Sources that are out of compliance at the time of application
must describe how they will comply with the underlying Act
requirements. The plan must specify the requirement for which
the source is not in compliance [as already required by
70.5(b)(7)(iii) and described in section IV.E.(4)(c)], describe
the equipment and/or changes in operation necessary to come into
compliance, and include a schedule of compliance [IV.E.(4)(d)].
Note that neither the plan nor the permit will alter the source's
legal liability for any violation of the SIP or Act.
This requirement in 70.5(b)(7) should not be confused with
the provision of 70.5(b)(8) that requires the permit
application to specify the test methods and monitoring to be used
for determining compliance. Rather, the compliance plan
specifies the means that will be used to achieve compliance. It
should be noted that adoption of compliance plans and the ensuing
schedules of compliance do not protect a source from enforcement
action or penalty assessment for existing or previous violations
of the applicable requirements. While permit applications and
compliance plans (for noncomplying sources) for general Title V
sources will focus on the information necessary to enforce the
applicable requirements under the Act, permit applications and
compliance plans for sources receiving acid rain permits under
Title IV of the Act will have to meet independent requirements to
be specified in future rulemakings to implement the Title IV
permit program.
While the Agency is proposing that the general requirement
for a compliance plan only apply to noncomplying sources and
affected sources under the acid rain program, including sources
which are in compliance with applicable requirements, must submit
compliance plans with their permit applications detailing how
each unit will comply with the acid rain requirements of the Act
[408(b)]. Requirements for acid rain compliance plans will be
set forth at Part 72. Depending on the method of compliance
chosen, acid rain compliance plans will include, for example,
deadlines for obtaining design engineering and construction
contracts, and information on the type of technology proposed.
In addition, requirements for operation and maintenance of CEMS
or alternative monitoring methods for acid rain affected sources
will be promulgated at Part 75 and will be included in each
source's permit.
(b) A Description of How the Source Will Monitor Compliance
With Those Requirements. All permit applications must describe
how the source will monitor compliance. 70.5(b)(8)(ii)
regarding permit application requirements for compliance
certification specifies that each permit application specify the
monitoring method to be used.
(c) A Schedule of Compliance. Section 70.5(b)(7)(iii)
defines "schedule of compliance" as a schedule of remedial
measures including an enforceable sequence of actions with
milestones, leading to compliance with all applicable
requirements of the Act for sources that are not in compliance.
This schedule must specify a date by which the source must
achieve compliance, and interim milestones for all remedial
measures necessary to meet that compliance date. Examples of
interim milestones for cases where new equipment is necessary to
come into compliance include the award date for the contract to
obtain the control device, the date of initiation of on-site
construction and/or installation of the device, the date of
completion, and the date of testing/calibration. Similar
deadlines could be established for installation of monitors. For
a work practice standard, interim milestones could pertain to
training of personnel. All schedules of compliance must be
contained in the permit.
(d) A Schedule for Submission of Progress Reports, To Be
Submitted No Less Frequently Than Every 6 Months. Within
70.5(b)(7)(iv) and in accordance with section 503(b), each
permittee which is not in compliance with all applicable
requirements of the Act is also required to submit progress
reports to the permitting authority no less frequently than every
6 months. These reports must describe the source's progress in
meeting the requirements of the compliance plan, and the ensuing
schedule of compliance. [The required content of the progress
report is specified in 70.6(c)(5).] The compliance plan must
set forth the schedule for submission of these reports.
(5) What Is a Complete Permit Application?
A determination by the permitting authority that an
application is complete is important to the source. Submittal of
a timely and complete application protects the source (except to
the extent construction or modification is involved) from
enforcement for failure to have an operating permit [503(d)], and
begins any prescribed periods for agency action on issuing a
permit, including automatic denial in some States. (A more
detailed account of the importance of this action can be found in
section IV.G.). Furthermore, a complete acid rain permit
application and compliance plan is binding on the source and is
enforceable until the permit has been issued. The importance of
this determination, combined with the fact that it can be
difficult to make, has traditionally made the completeness
determination the subject of dispute in the issuance of permits.
The Act, probably for these reasons, requires that permitting
programs contain "criteria for determining in a timely fashion
the completeness of applications" [502(b)].
The basis for determining the completeness of an application
should be the information contained in the permit application
itself. An approved State standard application form or forms
should provide for the submittal of all information necessary to
process the application and incorporate the applicable regulatory
requirements into a permit. However, this determination is also
a function of the type of source, the applicable requirements,
and SIP or attainment status. Thus, depending on the
circumstances, the permitting authority may need more information
than that specified on the application form.
The permitting authority should also assure that certain
supplemental information is included with the application before
ruling that it is complete. The application should be
accompanied by the compliance plan, to the extent that one is
required, and a certification of whether the source is in
compliance. Pursuant to section 503(c), the application must be
signed by a responsible official (the designated representative
for acid rain affected sources), who shall certify the truth,
accuracy, and completeness of the information submitted after
reasonable inquiry. In addition, an application should include
the calculations upon which the application data are based to
facilitate review of the application.
Various procedural disputes could arise from these
determinations. For example, while permit review is under way,
it sometimes becomes apparent that more information is needed.
The State must be able to request it, without being bound by its
initial determination. The EPA is proposing that the
determination of completeness and the associated protection
provided to the source to operate without a permit would remain
in effect during this process, assuming an adequate and
reasonably timely response by the source. Similarly, EPA is
proposing that if a source has submitted a timely application
which it, in good faith, believes to be complete, but which is
later determined by the permitting authority to be incomplete,
the protection would not be lost if the source cured the defect
within the expeditious time period specified by the permitting
authority.
The regulations being proposed today would require
notification to the applicant of the completeness determination.
It further states that where this notification is not provided
within 30 days of receipt of the application by the permitting
authority, the application shall be deemed complete. This date
also marks the time from which the permitting authority has a
maximum of 18 months to process the permit. Failure by the
source to respond in an adequate and timely manner to written
requests for additional required information would subject the
source to penalties for operating without a Title V permit
[502(a), 503(d), 40 CFR 70.5(c)].
(6) Data Management
Because considerable information will be necessary to
implement the permitting requirements of the Act, data management
is important. The EPA is considering changes to the Air Facility
Subsystem of its AIRS data management system to meet State and
national permitting needs. If such a system were developed,
States will be charged with ensuring that AIRS contains the
minimum permitting data elements identified by EPA. Separate
data bases will be developed for acid rain sources to facilitate
the tracking of emissions and allowances and to provide
information to the market on compliance choices.
Data management concerns will influence what information
States collect and the format in which it is collected. The
effect on types of information required in standard application
forms should be relatively slight. The information included in
the current AIRS system is of the type normally required by a
State to write a permit for a source. The influence on format is
likely to be more significant. For this system to work
efficiently, the data must be presented in units and a format
that are readily incorporated into the data system. The EPA is
investigating data processing enhancements that would expedite
the permitting process generally. Examples include electronic
permit application and data submissions.
The EPA solicits comments on the data management aspects of
the permit program, particularly the potential use of AIRS for
this purpose, and any enhancements the system might need.
F. Section 70.6 - Permit Content
Permits issued by the permitting authority must include
provisions that assure that the source will meet all of its
obligations under the Act. Permits should include, therefore,
emission limitations and standards; a schedule of compliance;
requirements for conducting monitoring and data analyses and
providing emissions statements; provisions for inspection, entry,
monitoring and reporting; and a process for public access to
these data, consistent with available protection from disclosure
pursuant, to section of 114 of the Act. The permit must also
provide for periodic progress reports with respect to any
applicable compliance plan for noncomplying sources, as well as
periodic reports concerning compliance with the permit
requirements. The reports must be signed by a responsible
official (designated representative for acid rain) who must
identify the requirements applicable to the source; verify the
truth, accuracy, and completeness of any submitted information;
and certify whether the source has complied with them.
(1) Core Permit Elements
A Part 70 permit will typically contain certain core
elements: an introductory section providing the source's name,
address, key contacts, and various standardized conditions; a
description of the source and its processes and emissions; a
statement of the applicable regulatory requirements, including
monitoring, recordkeeping, and reporting; and provisions relevant
to their enforcement. The requirements with respect to permit
content, located in several parts of Title V, are consolidated in
70.6. This preamble addresses them under the following three
topic areas.
(a) Emission Limitations, Standards, and Other Necessary
Conditions. Section 504(a) states that each permit "shall
include enforceable emissions limitations and standards" and
"such other conditions as are necessary to assure compliance with
the applicable requirements of this Act, including the
requirements of the applicable implementation plan." The basis
or citation of each of these requirements (e.g., NSPS, PSD)
should be included with them. This will reduce confusion as to
the origin of any limitation standard, or other condition, and
insure that EPA, the source, and the general public agree on the
regulatory requirements that apply to the permit. For example,
changing a restriction on operating hours might subject the
source to the "source obligation" provisions of the PSD program,
but this result might not be obvious if the operating permit had
included the origin of the limitation.
The regulations also require the permit to identify any
difference in form between the emission standard in the permit
and the regulation that is the basis for the standard. This will
allow EPA and citizen groups to readily identify these types of
permits for heightened review. This requirement should not be
too burdensome for permitting authorities since these types of
permits should be relatively rare.
The EPA notes that section 504(a) of the Act requires that
each permit "shall include enforceable emission limitations and
standards...and such other conditions as are necessary to assure
compliance with applicable requirements of this Act." Thus,
Congress seemed to contemplate that for some types of applicable
requirements, the requirements might not have to be incorporated
wholesale into the permit; rather, "conditions" that would assure
compliance with those requirements might suffice. While EPA
expects that in the ordinary case the requirements would have to
be included in the permit, there may be some cases where this
would make no sense. For example, new section 112(r) requires
certain facilities to prepare and implement a risk management
plan to prevent or minimize accidental releases of certain
hazardous substances. It would be of little benefit to mandate
that the entire plan be incorporated into the permit, requiring
revisions to the permit whenever a minor change were made to the
plan. The plan is to be submitted to States and local planning
entities and is to be made available to the public. The plan
would be a public document anyway, and would be enforceable
independent of the permit. The EPA, therefore, is considering
requiring only that the permit state that the source must have
and comply with a section 112(r) plan, and shall make it
available to the public under section 114(c).
The EPA solicits comment on what other types of requirements
might not be addressed in the permit. If EPA determines it is
appropriate to allow permits to include conditions in lieu of
certain applicable requirements, the Agency would plan to
specifically list such requirements either in the Part 70
regulations or in future guidance, whichever is appropriate.
The EPA wishes to stress the importance of good permit
writing to the enforceability of a permit. If permit provisions
are not clearly written and carefully specified, compliance may
well be thwarted, regardless of how well the direct compliance
measures already discussed are addressed. Failure to use
consistent or appropriate units in emissions limitations or
failure to adequately describe the facility or unit to which an
emission limitation applies, such that application of the
emissions limitation is unclear, can thus be grounds for an EPA
objection to the permit. Useful guidance as to what makes a
permit enforceable is contained in EPA's September 23, 1987
document entitled "Review of State Implementation Plans and
Revisions for Enforceability and Legal Sufficiency." That
guidance provides a checklist of key areas to consider in
assuring enforceability, including applicability, compliance
date, specificity of conduct, any incorporation by reference,
recordkeeping requirements, and exemptions and exceptions.
Other emissions-related issues include appropriate
provisions for startup and shutdown procedures, and scheduled
maintenance. A permit might also contain provisions regarding
upset conditions.
The determination of what are the "applicable requirements"
that must be addressed by the permit is an important matter that
is addressed separately in section IV.F.(3).
(b) Compliance Certifications, Monitoring, and Reporting
Requirements. The provisions of section 504(a)-(c) underscore
the emphasis that Title V places on demonstrating compliance with
all terms of operating permits. Specific elements for
noncomplying sources include a schedule of compliance, a
requirement that the permittee submit the results of any required
monitoring no less often than every 6 months, and "such other
measures as are necessary to assure compliance" with all
applicable requirements under the Act [504(a)]. In addition,
each permit shall set forth inspection, entry, monitoring,
compliance certification, and reporting requirements to assure
compliance with the permit terms and conditions [504(c)].
Certifications of compliance are required by both Title V
and Title VII (Enforcement). Section 504 specifies that each
permit must contain compliance certification requirements, and
section 703 of Title VII further requires submission of
compliance certifications for all major stationary sources and
other sources as specified by the Administrator. The enforcement
agency will evaluate these certifications to determine if further
inspection or enforcement activity is warranted. Certifications,
as discussed in more detail below, must include any periods of
noncompliance, reasons for the noncompliance, how noncompliance
was corrected, and how it will be prevented in the future.
Certifications are required by the statute to be submitted at
least annually, and are required to identify whether compliance
has been continuous or intermittent. Certifications and all
reports must be signed by a responsible official who shall
certify its truth, accuracy and completeness.
The operating permit itself must require periodic
certifications of compliance. The minimum content of these
certifications is specified in 70.6(c)(6)(iii), which are, for
the most part, self-explanatory. The compliance certification
must document not only the current compliance status at the time
of preparation of the report, but also whether compliance over
the reporting period was continuous or intermittent (i.e.,
whether there were periods of noncompliance). These compliance
certifications place the responsibility to monitor compliance on
the source. Also, the certified report should identify periods
of missing data and the cause for the missing data.
A compliance certification must be submitted for each
emission standard, work practice, or operating restriction.
However, it is not necessary to submit separate reports. One
report certifying all the contents therein would suffice. As
indicated by 70.6(c)(6), the permit must specify the frequency
of the required submittals of the certifications and the method
for assessing compliance, and require that all such reports be
certified by a responsible official.
If appropriate, requirements for testing of compliance must
be contained in the permit itself. Section 70.6(c)(6)(ii) further
requires inclusion of a compliance technique. To make the
applicable standards enforceable, all permits must specify both
an initial compliance testing method, and a method to assess
compliance with applicable requirements of the Act. The source
must keep records of this required testing and monitoring and
periodically report to the permitting authority. Affected
sources under the acid rain program will be required to comply
with nationally promulgated monitoring and reporting
requirements. Performance certifications, quality assurance
reports, monitoring, recordkeeping requirements, and electronic
reporting options will all be established nationally. These
requirements will be promulgated in a subsequent rulemaking at
Parts 72 through 78, and States must have the authority to
incorporate the requirements into their approved programs.
The term "monitoring" refers to many different types of data
collection. It could include, but is not limited to, periodic
stack sampling, continuous emission or opacity monitoring,
ambient air monitoring, or measurements of various parameters of
process or control devices (e.g., temperature, pressure drops,
voltages). Monitoring, recordkeeping, and reporting provisions
are also essential to make standards enforceable. Hence,
70.6(a)(3) requires these provisions, including the section
503(b)(2) requirement for prompt reporting of deviations from
permit conditions.
Section 504(a) of the Act and 70.6(a)(3) of the proposed
regulations require permittees to submit the results of all
required monitoring at least every 6 months. These reports must
be certified for truth, accuracy, and completeness by a
responsible official. The data must be submitted in a format
consistent with the underlying standard. For example, if the SIP
limitation for a coating facility is 2.9 pounds of VOC per gallon
of coating, that is how the information should be presented in
the monitoring report. Enforcement personnel should not have to
do any calculations or conversions of raw monitoring data to the
applicable standard to be able to determine compliance.
(c) Other Permit Provisions. The permit should also
contain various other provisions, not directly related to
emissions requirements or their enforcement, that are important
to permit management. For example, permits should specify their
expiration dates and procedures for renewal. The permitting
authority would also be likely to include requirements that
become applicable at a future date. These include such matters
as the transition from the Federal Phase I permitting to the
State Phase II permitting of sources subject to acid rain
requirements. Fee amounts and provisions for their payment must
also be included.
(2) Program Specific Elements
(a) General. The preceding discussion of core permit
elements described the range of items to be contained in an
operating permit. In many cases, these will fully satisfy the
permitting provisions. It is important to keep in mind, though,
that Title V permits can be used to support a wide range of air
quality management functions. For example, emissions inventory
updates will be an important component for VOC nonattainment
plans. The permitting program and the nonattainment plan should
be developed in coordination with one another. At the discretion
of the permitting authority, operating permits could require
additional information that could be used in inventory
development. The EPA solicits comment on whether, and how, such
coordination should occur.
There are procedures for the development of alternative
emissions limits under the NESHAP program [V.E.]. Additional
permitting information is necessary for the early implementation
of those standards. Permit conditions must also be structured so
as to provide for an orderly transition to Act requirements that
are not yet established, such as MACT requirements.
(b) Acid Rain. Notwithstanding section 506(a), no permit
shall be issued that is inconsistent with the requirements of the
acid rain program, or of Parts 72 through 78.
State legislative or regulatory authority should contain
this limitation. The Agency plans to rely on its permit
oversight authority to ensure national consistency with the acid
rain program to allow approval of State permit programs that
contain more general provisions, and to facilitate the allowance
trading program.
Title IV requires that certain provisions be included in all
acid rain permits issued by EPA or the States. Specifically, all
permits issued to affected sources under the acid rain program
shall prohibit (1) annual emissions by affected units in excess
of the applicable emissions limitation for NOx; (2) annual
emissions of SO2 by affected units in excess of the number of
allowances to emit SO2 held by the owner or operator, or the
designated representative, for use in that year by each such
affected unit; (3) any person from holding, using, or
transferring any acid rain allowance, except in accordance with
regulations at Part 73; (4) the use of any allowance prior to the
calendar year for which it was allocated; and (5) contravention
of any other provision of Title IV, Parts 72 through 78, or of
the permit [403(f),(g)].
(3) Applicable Requirements of the Act and the SIP
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)]. Efficient operation of
the permit program requires that the permitting authority and EPA
clearly understand and agree on what requirements under the Act
apply to a particular source. The EPA expects to oversee the
inclusion of the Act's applicable requirements in the operating
permits. Where there is a question with the permitting authority
over what requirements of the Act or SIP apply to a source, EPA
will exercise its authority under section 505(b)(1) to object to
permits that fail to assure compliance with the applicable
requirements as clarified in the available record. The EPA
proposes the following guidance for defining applicable
requirements:
(a) NAAQS. The EPA interprets "applicable requirements" of
the Act and the SIP to mean limitations, standards, and/or
requirements directly applicable to sources. Typically, EPA will
enforce the requirement that the States implement the NAAQS
through SIP's. For example, Title I requires that certain ozone
nonattainment areas demonstrate a 3 percent reduction in VOC
emissions each year. That is a planning obligation on the State,
which the State may implement in any number of ways. For
example, it could require a 3 percent reduction from each VOC
emitting source in the State, or it could place stringent
controls on some categories while not controlling other
categories. The EPA is not planning to review VOC limits in
individual source permits to determine whether the State is
meeting the 3 percent reduction requirement, although EPA in its
SIP review may look at the collection of permits the State has
issued under Title V to determine if the State has met its 3
percent reduction obligation.
In the case of SO2, lead, or perhaps PM-10, however, a
particular source (such as a power plant or smelter) may be
located such that whether the SIP will assure attainment or
maintenance of the NAAQS will depend entirely on the limits
placed on that source. Even in such cases, EPA solicits comment
on EPA's proposed position not to require that permits assure
attainment and maintenance of the NAAQS. The permit would not be
required to assure protection of the NAAQS even in those cases
where EPA has issued a notice of SIP deficiency.
The EPA will, therefore, not object to a permit (that
otherwise complies with the applicable SIP) on the grounds that
the permit does not assure attainment of the NAAQS. Where more
than one source substantially contributes to the NAAQS violation,
EPA will not use individual permit actions to impose limits on
sources beyond those required in a SIP. It is the State's
responsibility to decide what limits the SIP should impose on the
various sources. While the State may choose to remedy the
inadequate SIP using a series of individual permits, EPA's review
of individual permits will not be the appropriate forum for
reviewing the adequacy of such planning decisions. The EPA must,
however, review these planning decisions when the permitting
authority, as required by the Act, updates the attainment
demonstration or incorporates individual permit limits into the
SIP. The EPA emphasizes that, for the preceding case to be
grounds for potential objection, the relationship between the
single source's emissions and the NAAQS violation must be very
direct and clear.
(b) SIP Ambiguity. Some SIP requirements will be vague as
to a significant provision (e.g., averaging time, monitoring,
and/or reporting requirements), requiring considerable time
during the permitting process to make the operating permit
enforceable. In such cases, the SIP will be ambiguous when
applied to a particular source, and the State must judge how to
define the enforceable permit conditions. Where the State's
interpretation of a requirement is both inconsistent with the
State's demonstration of attainment and maintenance of the NAAQS
and undermines the level of emissions reduction EPA anticipated
the rule would achieve, EPA will object to the permit. In making
this decision, EPA will look to the available record, including
the assumptions the State made in the SIP.
The narrative description accompanying the SIP is not
directly enforceable on sources, but it is reasonable for EPA to
look to the assumptions made in the SIP in deciding how an
ambiguous SIP should be applied to a particular source. For
example, if the State grants the source an extended averaging
time for compliance demonstrations that is inconsistent with the
underlying SIP narrative, EPA will object to that permit, unless
the SIP is changed to accommodate the longer averaging times.
These State interpretations of ambiguous SIP regulations may need
to be incorporated into the SIP if they critically affect the
NAAQS demonstration. As discussed more extensively in section
V.B, EPA believes that this might be accomplished periodically
through the SIP revision process. Failure on the part of the
State to revise the SIP may result in the issuance of a notice of
SIP deficiency by EPA to the State.
The permit requires certain information to make it
enforceable. There are situations in which a SIP, standing
alone, is an inadequate basis on which to issue an approvable
(i.e., enforceable) permit. For example, the SIP may contain
gaps as to test methods or averaging times. The operating permit
process should, at least temporarily, fill these gaps to the
extent required by Title V. However, this does not relieve the
State of any obligation it might have to revise the applicable
SIP in response to an EPA SIP call. To promote and expedite
permit decisions by State review authorities that address SIP
ambiguity, EPA believes that the concept of a model permit
appears promising. Under this concept, conditions for various
source types would be developed by EPA. These conditions would
incorporate all relevant standards and requirements in
enforceable terms, address any gaps in applicable SIP limit(s),
and would agree with the assumptions concerning the SIP control
strategy demonstration. Permitting authorities could adjust the
conditions of the "model," as necessary, during the permit
process. While a model permit would not define the only
acceptable means to avoid an EPA veto, it could streamline EPA
permit review on aspects that do not differ from the model
conditions. The EPA solicits comment on this concept and on how
best to develop and implement it.
(c) SIP's and FIP's. When a State fails to submit or
implement a SIP, EPA may have to impose a FIP under section
110(c) of the Act. When a FIP applies to an area, operating
permits for sources in that area must assure compliance with the
FIP measures. Failure of a permitting authority to implement the
FIP requirements in its permits will be cause for EPA to find
that the State failed to administer the permitting program under
section 502(i). The EPA may choose to issue permits for sources
subject to the FIP and to collect the permit fees.
Other important concerns arise regarding permit program
approval and implementation of an inadequate SIP. These issues
are discussed in detail in section V.B.
(d) New Source Review. The requirement under Title V that
operating permit programs assure compliance with all applicable
requirements under the Act includes the requirements imposed in
any NSR permit. Any requirements established during the
preconstruction review process also apply to the source for
purposes of implementing Title V. If the source meets the limits
in its NSR permit, the Title V operating permit would incorporate
these limits without further review. The intent of Title V is
not to second-guess the results of any State NSR program.
Operating permits may conveniently help States implement
their NSR programs. If a source "nets out" of NSR by restricting
operations at the facility, it may seek an operating permit
revision to make that restriction federally enforceable. If a
new source needing offsets finds a facility to provide them, the
donor facility's permit may be modified to enforce the offsets.
(e) Tighter or Equivalent Requirements. The determination
of whether a permit provision relaxes an applicable requirement
is an issue, since section 505(b) subjects to EPA veto permits
that are not in compliance with the applicable requirements of
the Act, including those of the SIP. To minimize concerns about
potential relaxations of SIP requirements, permitting authorities
are required to express new limitations in terms consistent with
those in the SIP (e.g., averaging times) to facilitate comparison
with the existing SIP requirement. Where the SIP allows
expressing the permit limitation in terms other than those used
in the SIP, the burden of demonstrating equal or greater
stringency rests with the State. This demonstration must
accompany the draft proposed, proposed, and final versions of any
permit.
(f) National Emergencies. There are several provisions in
the Act authorizing the President to waive applicable
requirements of the Act to meet national emergencies or address
the national security interest [110(f) and 112(i)(4)]. The EPA
does not believe it is reasonable for the Title V permit program
to restrict the operation of these emergency waiver provisions.
For example, where the President has made a finding under section
110(f) that it is necessary to suspend a part of a SIP because of
a national energy emergency, requiring all the permits that
implement the suspended SIP provisions to go through a time
consuming reopening procedure would defeat the urgency of the
President's finding. Therefore, EPA will interpret such
provisions to allow a waiver not only of the applicable
requirement under the Act, but also as it appears in any permit
implementing the requirement. Obviously, the waiver of the
requirement as it appears in the permit will be coextensive with
the waiver of the underlying applicable requirement in the Act,
and will only be effective after the underlying requirement has
been waived according to the procedural requirements in the Act.
(4) Relationship Between the Permit and the Application
The permit application must provide the information
necessary for the permitting authority to process the permit.
Much of the application need not be incorporated into the permit,
however, even though it was needed for preparing the permit. Key
elements of the application (e.g., emission limits, the
compliance plan and the schedule of compliance for noncomplying
sources, and monitoring methods) are not federally enforceable
unless repeated or incorporated into the permit (except in the
case of acid rain applications).
Nevertheless, existing State practice typically considers
most, if not all, of the permit application to be enforceable.
In many States, a permit refers to the entire application, and
sometimes incorporates it by reference. This practice makes all
the source's assertions in the application enforceable, even if
they are not critical to implementation of the permit.
Under Title V, this practice is not required. Instead, the
draft rule requires the permitting authority to determine which
details are necessary for incorporation into a Part 70 permit
because they assure compliance with applicable requirements. Any
provisions of the application incorporated in the permit must be
readily available to the public and do not qualify for protection
as confidential information.
Public comment is solicited as to what type of information
contained in the application should be incorporated into the
permit. In addition, EPA solicits comment on whether
applications (as well as permits) can cross reference applicable
regulations and other requirements instead of repeating them.
Regardless of the balance between the information contained
in the application and that contained in the permit, certainly
some portion of the application will be referenced by the permit
and therefore will be made federally enforceable. Because
determining this balance can be difficult, and because it is
important to the Title V permitting process that a source's air
pollution control obligations be clearly defined, the permitting
authority should specifically address in the permit the status
role of the assertions made in the application.
(5) Operational Flexibility
The operational flexibility provisions in 70.7(d) of the
regulations are discussed in section G(7) of the preamble.
(6) General Permits
Section 70.6(f) reflects section 504(d), which authorizes
permitting authorities to issue a "general permit covering
numerous similar sources." The EPA anticipates that States will
use this authority to reduce the administrative burden of the
Title V permitting program for both the permitting authority and
the permitted sources. General permits may be especially useful
in easing the burden of the program on small businesses.
Therefore, the Agency wishes to clarify its understanding of how
this authority will operate in the context of operating permit
programs generally.
(a) Determining Where To Use General Permits. In most
instances EPA intends to allow those permitting authorities with
approved programs to determine whether to issue general permits,
and for what source categories. If, however, a permitting
authority determines that a general permit should apply to a
category of major sources or a category of affected sources under
the acid rain program, the permitting authority must submit the
general permit to EPA as a program modification. Prior to
issuing the general permit, the permitting authority must
determine whether there are source categories for which general
permits might be appropriate. Criteria in any such determination
are source size and similarity of sources within the category;
categories made up of numerous, small, and nearly identical
sources, are ideal. Initially, EPA does not anticipate issuing
any nationally applicable general permits. In the future, EPA
intends to develop model general permits for appropriate
categories of sources subject to Federal standards. The
permitting authorities may then adopt these models as appropriate
to the circumstances in their States. The EPA solicits comment
on which categories would be most appropriate for the development
of general permits. In particular the EPA solicits comment on
the idea that such permits be prepared for woodstoves, gas
stations, dry cleaners, and several the source categories subject
to the radionuclide NESHAP to the extent that these sources would
not be exempt from review.
Permitting authorities may also choose to develop general
permits for categories of numerous, identical emissions units
within larger sources. For example, a general permit for
degreasers could specify standard operating conditions or
maintenance requirements. A general permit for a large
manufacturing operation with numerous permitted emissions units
could specify the terms of the model permit for the type of
degreaser the facility uses, along with the terms specific to
that source.
(b) Issuing General Permits. Title V requires that the
permitting authority provide notice and an opportunity for a
public hearing when issuing a general permit. In contrast to
section 502(b)(6), governing issuance of standard permits,
section 504(d) does not explicitly require an opportunity for
public comment with respect to individual sources when issuing a
general permit. Nonetheless, the EPA suggests that permitting
authorities provide the public an opportunity to comment on
general permits. Otherwise, the interested public may insist on
a public hearing, even if only for the satisfaction of submitting
a comment. The notice for the general permit must allow the
public an opportunity to review the scope of the source category
under the permit (but not necessarily a listing of specific
source sites that might be covered), the terms and conditions
which the permit will impose on that category, and the
application process by which individual sources will receive the
right to operate under the general permit.
There may be opportunities for States to consolidate the
issuance of general permits with the adoption of SIP regulations.
Section 110(a)(2) and (3) require that States provide reasonable
notice and a public hearing for all revisions to its SIP. A
State may determine that a new SIP regulation will apply to a
source category for which general permits would be appropriate.
The State could use the same notice and hearing for both the SIP
rule and the general permit. After the State finalizes the SIP
rule and is ready to issue the general permit, it could then
submit the general permit to EPA for review under section 505.
Once the permitting authority has afforded opportunity for
public input on issuing the general permit, it may permit
individual sources under the general permit without additional
opportunity for public input. Section 504(d) provides that
sources covered by a general permit are not relieved of their
obligation to file an application as otherwise required under
Title V. Therefore, sources covered by a general permit will
have to submit an application to the permitting authority, and
may be asked to also submit an appropriate permitting fee.
Depending on the complexity of the source category under the
general permit, such application processes could simply be a
brief application (such as a form application) requesting a
permit consistent with the general permit, or a more detailed
statement establishing that the source qualifies for the permit.
The EPA expects that applications for general permits will
typically be quite simple, because the sources in each category
will be very similar.
Within limits discussed below, it is for the permitting
authority to balance the desire for a simple application against
the flexibility gained by broadening a source category and
introducing variables into the application process. Once the
permitting authority accepts the application, it can issue the
individual permit by mailing the applicant the appropriate
permit. All general permits, and the individual permits issued
under them, must conform to all requirements (e.g., they must
have monitoring, recordkeeping, and compliance certification
provisions of these regulations).
The EPA is also considering an alternative approach for
applying general permits to individual sources. Under this
alternative, rather than issue individual permits to applicants,
the permitting authority might simply construct the general
permit so that it applies automatically to any source within the
source category covered by the general permit. The individual
source must submit an application identifying and describing the
source, so that the permitting authority and the public could
determine whether the general permit applies to the applicant,
but the authority would not need to notify the source through an
individualized permit that the general permit applies. Of
course, the permitting authority might still notify some
applicants that the general permit did not apply to them. Beyond
that, a source could opt out of this approach by requesting that
the permitting authority issue a specific individual permit for
the source.
The main advantage of this approach is that it would reduce
the administrative burden associated with requiring the permit
authority to issue individual permits to the potentially hundreds
or thousands of sources that would be subject to general permits.
The main disadvantage is that a citizen or inspector visiting the
source would not be able to view, at the source, a permit issued
by the State specifically for that equipment. Rather, he would
need to rely on the wording of the general permit (residing,
perhaps, only in the offices of the permitting authority) to
determine whether the general permit indeed applied to the
source. Moreover, the public would not be able to challenge the
general permit's applicability to a particular source during the
permitting process since the permitting authority would not make
such an applicability determination as part of that process. The
EPA solicits comment on whether it should allow State programs to
employ this or other streamlined methods of general permitting in
light of their advantages and disadvantages, or whether
individual permits need to be issued to each source covered by
the terms of a general permit.
(c) Overseeing General Permits. The EPA will treat the
issuance of a general permit as it would that of any other
permit. Therefore, general permits will be subject to the review
process under section 505, including neighboring State and EPA
review. The general permit must include clear criteria for
determining whether a source qualifies for the permit, the terms
and conditions applicable to the source, and an application
process for obtaining individual coverage under the general
permit. As with regular permits, EPA will use its review
opportunity under section 505(b) to determine whether the terms
and conditions of the general permit assure compliance with the
requirements of the Act applicable to that source category in the
relevant State. Unlike regular permits, EPA must make a judgment
at this stage in the process whether the general permit and its
application process are reasonably structured to permit qualified
sources and exclude unqualified sources. There may be cases
where EPA must object to a general permit because the permitting
authority is applying it to an inappropriate source category or
is not asking for the information necessary to apply it
accurately to specific sources.
After the permitting authority has issued the general
permit, EPA will not engage in any direct review under section
505 of the permitting authority's approval of each source's
application to operate under the general permit. The EPA must,
however, continue to receive a copy of all final permits issued
to individual sources. The Administrator may later determine by
audit or inspection that, although a source is operating under a
general permit, it does not in fact qualify for the permit.
The EPA then has several courses of action available. If
the source has clearly misapplied the criteria for receiving the
general permit, EPA may enforce against the source, under section
113, for a failure to meet the qualifying criteria, which must be
included as terms of the general permit, as discussed above. The
EPA may enforce as well for failure to meet any applicable
requirement of the Act. The source may also be liable for filing
a false application if it misrepresented its qualifications for
the general permit. If the qualifying criteria as they apply to
a particular source are unclear, EPA may use its authority under
section 505(e) to terminate the general permit for that source,
and require issuance of a regular permit. Finally, if EPA
determines that a properly-issued general permit, when applied to
its source category, proves to be impracticable or fails to
assure compliance with the Act, EPA may revoke or reopen the
general permit under section 505(e).
G. Section 70.7 (and Section 70.6(d)) - Permit Issuance,
Renewal, Reopenings, Operational Flexibility and Revisions
The Act sets forth detailed provisions with regard to the
process by which permits are issued. This section of the
preamble describes EPA's proposed regulations for permit
issuance, renewal, and reopenings, including those requirements
regarding essential permit issuance procedures necessary for
obtaining approval for a State program. The requirements for
permit revisions were discussed in the previous section of this
preamble [IV.F.].
(1) The Application Process and State Review
As noted in section IV.E., the submittal of a complete
application is a crucial part of the permit-issuance process.
States are required to have procedures for both determining the
completeness of applications and for expeditiously processing
them. Because of the critically important nature of this step,
the proposed regulations would require States to promptly notify
sources of the results of the completeness determination [40 CFR
70.7(a)(2)].
Pursuant to section 503(d), the timely submittal of a
complete application and the continued timely submittal of any
additional information creates a legal "shield" from enforcement
action if this source is also operating within the terms of a
permit. For purposes of permit renewals, "timely" will mean
submittal of the application 18 months prior to the expiration
date of the permit, unless another time is approved by the
Administrator. A correspondingly shorter time would be needed
for permits with fixed terms shorter than 5 years, or where the
State is required to act on the renewal application in less than
18 months. In no event will the time for submittal be less than
6 months before permit expiration.
It should also be noted that the complete application does
not shield the source from compliance with substantive air
pollution control requirements. [There is one specialized
exception to this rule in the case of applications for acid rain
permits. This is discussed in section IV.G.(5)(a) below.]
Despite the protection provided by the "shield" when a
timely and complete permit application is filed, EPA believes
that it makes no sense to deprive a source of such protection
where an application is only slightly overdue. Otherwise, a
permitting authority's failure to act on an application during
the prescribed review period could shut down a source, even if
the application were only a few days late. The EPA proposes to
solve this problem by providing in 70.7(b) that the shield will
not be lost because a complete application was submitted less
than 3 months late. This proposal is supported by the language
in section 503(d), which states that, under most circumstances,
if a source has submitted a timely and complete application, "the
source's failure to have a permit shall not be a violation of
this Act." Nothing in the Act prohibits EPA from exercising its
discretion to extend this application shield in other,
appropriate circumstances. The proposed regulations make clear,
however, that a source remains subject to enforcement action and
penalties for failure to submit a timely and complete application
for the entire period that the application was late.
The EPA also proposes that the application shield should
still apply where a source submits a timely application that the
permitting authority determines to be incomplete, regardless of
whether there was "good faith" on the part of the source to file
the required information. If the source cures any deficiency
during the expeditious time period specified by the permitting
authority (i.e., a few days), then the application shield can
apply from the time when the "good faith" application was
submitted.
State programs are required to have procedures for
expeditious and efficient processing of permits. Pursuant to
section 503(c), the permitting authority shall issue or deny the
permit within 18 months of receipt of a complete application.
[During the initial phase-in of the program, however, any shorter
timetable specified in the transition plan will supersede the 18-
month requirement.] The program must provide that failure of the
permitting authority to act within this time period shall be
treated as a final permit action solely for purposes of judicial
review in State court of an action brought to require that action
be taken by the permitting authority on the application without
additional delay [502(b)(7)]. In other words, while the failure
to issue a permit can be reviewed judicially, the permit cannot
be deemed to be approved or disapproved at that time. One
potential difficulty in obtaining program approval arises from
provisions for default permit issuances under State law. Some
State statutes provide that a permit based upon the submitted
application will be automatically issued after the passage of a
certain time period if the State permitting authority has failed
to act. Such default issuance is inconsistent with the State
permit-processing requirements of Title V and, obviously, with
the requirements for Federal oversight contained in section 505.
Although section 503(d) of the Act makes it clear that
existing sources can receive the shield from enforcement action
for failure to have a permit, until final action is taken by the
review authority on the application, the status of sources
subject to preconstruction-review permitting is less clear. One
reading of the section is that the application shield is not
available to sources subject to NSR permitting under the Act
(e.g. PSD), and that those sources must have Title V operating
permits before commencing operation. The EPA believes that a
better reading consistent with the goals of section 503(d), and
of Title V generally, is one that affords protection equally to
existing and to new sources.
There are several reasons which support this proposal.
First, sources that have recently undergone the careful scrutiny
involved in obtaining a PSD or NSR permit present much less of a
relative risk to air quality goals even if they are allowed the
benefits of the shield, than would existing sources. Second,
Title V provides a review process that, while efficient, could
cause expense and delay to the initial operation of a source that
typically will have excellent air pollution controls. There is
nothing in the legislative history that indicates Congress
intended such harsh treatment for new or modified sources. A
third reason arises from the fact that the subsection specifies
only NSR permits required by the Act. It would be anomalous to
allow the application shield to new sources that have undergone
State NSR procedures, which generally address smaller sources and
are less rigorous than the NSR mandated by the Act. In view of
these factors, EPA believes that section 503(d) should be
interpreted as a reemphasis of the important, independent
requirements of the Act with respect to NSR permits, rather than
a denial of the application shield to these sources.
If EPA adopts the alternative position in its final
rulemaking, all sources obtaining NSR permits will also be
required to obtain Title V operating permits before commencing
operation [i.e., it is not sufficient that the source submit a
timely and complete application before operating] [503(d)]. This
has prompted interest in the possibilities for integrating or
coordinating these two permitting systems. The EPA is aware that
some States currently integrate their processes for issuing
construction and operating permits, and wishes to minimize
disruption of existing practices. In addition, this practice
might address the concern expressed by some industry
representatives that early issuance of the operating permit would
aid in qualifying for construction loans. The EPA concludes that
such program integration would be consistent with Title V.
States preparing such programs must, however, carefully
scrutinize them so as to maintain consistency with the
requirements of Title V. For example, the term of the operating
permit would begin running immediately upon issuance of the
integrated permit. Payment of emissions fees, submittal of
compliance plan for noncomplying sources and certification, and
future permit renewal must also be addressed.
(2) Public Comment
Title V emphasizes the importance of a well established,
procedural basis for permit issuance. Public comment is a
cornerstone of this, and the following discussion examines the
provisions of Title V on this subject.
(a) Public Information and Notice. Pursuant to section
502(b)(6), State programs are to have formal procedures for
providing public notice of certain permitting actions. Each
permitting issuance, renewal and modification must be supported
by an official record that is available to the public. The
notice should include both substantive information, regarding the
source itself, and procedural information, regarding the public's
opportunities for participation. The extent of source-specific
information required for the notice will vary, depending on the
size and type of source and the applicable requirements, but
should at least include the source's name and type of facility,
size, regulated emissions, and principal regulatory requirements.
The procedural information, which can be standardized, should
describe the public's opportunity for comment, including the
availability of the official record, the duration of the comment
period, and the opportunity for a hearing. Notices for hearings
should briefly describe the procedure by which the hearing can be
requested.
The process for publishing public notices of permitting
actions has always been of considerable practical interest to
State agencies because extensive publications of notices in
newspapers of general circulation can be time consuming and can
entail appreciable expense. For this reason, State agencies have
generally not used this form of publication, except for certain
types of sources or regulations, or where specifically required
by Federal law, most notably under the PSD and nonattainment NSR
provisions of the Act [40 CFR 51.166(q)]. The proposed
regulations require that the State provide public notice "by
advertisement in the area affected" [70.7(i)(2)]. The EPA
solicits comment on public notice procedures, including any
currently used by State programs, that might be less
administratively burdensome than individual newspaper
publication, while still meeting the requirements of Title V.
This issue is of particular importance to this program because of
the large number of permits involved and the fact that most
permitting actions incorporate SIP limits that have already
undergone public review, and should therefore be
noncontroversial. Options to be considered include the use of
State publications analogous to the Federal Register and of bulk
processing of notices.
Section 505(a)(1) requires that the permitting authority
transmit to the Administrator "a copy of each permit application
(and any application for a permit modification or renewal), or
such portion thereof, including any compliance plan, as the
Administrator may require" as necessary to carry out EPA's
responsibilities under the Act, and a "copy of each permit
proposed to be issued and issued as a final permit." The
potential use of various approaches to streamline or focus the
process of State information submittal to EPA has been a topic of
considerable interest, given the number of permits and amount of
information involved.
Mechanisms for waivers of the EPA notification requirements
are discussed in section IV.H. In addition, the notification
requirement might be streamlined pursuant to section
505(a)(1)(A), which requires the submittal to EPA of permit
applications "or such portion thereof ... as the Administrator
may require" to carry out EPA's responsibilities. The EPA
solicits comment as to the extent of this flexibility and how
this information submittal process can be streamlined to agree
with EPA's responsibilities as guarantor of the permitting
process. Examples of such practices might include summary sheets
with certifications (instead of comprehensive submittals) for
certain routine permitting, or the use of electronic submittals.
For acid rain, summary sheets with certifications will not be
authorized in lieu of submitting complete applications and draft
permits to EPA. The Agency, however, is considering the use of
electronic submittals of applications and draft permits for acid
rain affected sources to minimize the submission burden.
Section 505(a)(2) also requires the permitting authority to
notify all States "whose air quality may be affected and that are
contiguous" to the subject State, or that are within 50 miles of
the source, of each permit application or proposed permit
forwarded to the Administrator. This regulation would require
that the same draft proposed permit for which the permitting
authority offers public notice and an opportunity for public
comment and hearing be provided to those affected States. The
permitting authority shall provide an opportunity for those
States to submit written recommendations. If those
recommendations are not accepted, the permitting authority shall
so notify that State and EPA in writing and provide its reasons.
This process appears straightforward. Particular administrative
details, such as how much of an application should be
transmitted, may be appropriately addressed by agreements between
the relevant States.
The one area where clarification might be necessary is in
the definition of the term "may be affected" in section
505(a)(2)(A). The 50-mile geographic trigger, contained in
section 505(a)(2)(B), appears to provide adequate protection for
virtually any case and would be relatively simple to administer;
compared, for example, to alternatives that attempt to define a
significant ambient impact. The EPA solicits comment on whether
any other trigger would provide any further safeguard, beyond the
50-mile test, needed to implement the "may be affected" test for
certain pollutants.
There has been some interest regarding whether State
permitting authorities would be required to publish notice both
of proposed State action on the permit (prior to EPA review) and
of final permit issuance (following EPA review), or only the
latter. The EPA proposes not to require the latter notice.
(b) Opportunity for a Hearing. The EPA believes the
requirement in Title V for an opportunity for a public hearing
can be implemented in an informal manner. It is not requiring
States in its proposed rules to provide a full "trial-type"
hearing with a verbatim transcript and opportunity for cross-
examination. The Agency proposes that a public hearing for
purposes of Title V be an open meeting for concerned parties to
express their concerns. A summary of comments received should be
placed in the public record.
The EPA also solicits comment as to the degree of discretion
that State agencies should have to condition the opportunity for
a hearing upon certain reasonable criteria. These might include
the relevance of the issues presented by the requesters, and
whether factual issues (in contrast to issues of law) are
presented. The granting of a request for a hearing might also be
linked to the quality of information provided by the requester to
support the request [e.g., whether the request reflects comments
of sufficient technical (or, possibly, legal) scope that they
would benefit from the exchange of ideas afforded by the public
hearing process].
(c) Publicly Available Records. Title V places
considerable emphasis upon providing public access to permit
information. Section 502(b)(8) requires that the permitting
authority make available to the public any permit application,
required compliance plan for noncomplying sources, permit, and
monitoring or compliance report, subject to the provisions of
section 114(c). [The EPA notes that section 114(c) governs
information to be provided to EPA, not to a State, and thus the
provision does not apply where the State is the permitting
authority. The Agency interprets Congress's reference to section
114(c) as authorizing the States to use the same, or
substantially similar, confidentiality criteria, otherwise the
reference would be meaningless except where EPA is the permitting
authority. The EPA solicits comment on this interpretation.]
Section 503(e) requires that each application, compliance
plan for noncomplying sources (including the schedule of
compliance), emissions or compliance monitoring report,
certification, and each permit issued under this title shall be
available to the public. The applicant may separately submit
material subject to State procedures which correspond to the
section 114(c) confidentiality provisions of the Act. In no
event will the contents of a permit be entitled to section 114(c)
protection. To the extent the permitting authority chooses to
make the application or other supporting material an enforceable
part of the permit, these materials would also be publicly
available.
(3) State Permit Appeals
The proposed regulations require State operating permit
programs to contain appropriate appeals procedures. Many States
currently provide an administrative process to consider appeals
from permitting decisions, and EPA anticipates that these
procedures will continue to be used under the Title V permitting
program. For those cases in which a State does not offer such an
administrative process, the Act still requires the State to
provide for judicial review in the State courts. States may
require that judicial review only be available to those
petitioners who first have gone through the administrative
appeals procedure [502(b)(6)]. Further discussion of this topic
is provided in section V.D. It should be kept in mind that
permits cannot be issued with respect to Title V until the
Federal review is complete. Because of the statutory 18-month
period for final action on permit applications, it is expected
that State permitting authorities will generally issue final
permits at the end of State and Federal review, regardless of any
pending appeals of the permitting decision. However, the EPA
does recognize that, in some cases, the nature of the appeal
might prompt changes to the permit that could significantly
affect commitments by the source. In such cases State programs
should have the discretion to withhold final action on the permit
while the administrative appeal is pending. The permit challenge
procedures adopted by the States should limit the effect of
permit challenges, as is done in the NPDES program. State
authorities should provide that only the portions of a permit
specifically challenged may be stayed during the challenge. All
other provisions of the permit should remain in effect. The
Agency is proposing that permit challenge procedures limiting the
effect of challenges be criteria for State program approval.
To ensure the integrity of the various programs implemented
through the permit, each permit should also contain a
severability clause. This clause should be designed to ensure
that challenges to portions of the permit do not affect the
applicability of the unchallenged permit requirements. This
provision, should further ensure that only those specific
requirements being challenged may be stayed pending
administrative or judicial review. The Agency is proposing that
a severability clause be criteria for permit program approval and
expects to veto permits lacking this clause.
(4) Terminate, Modify, or Revoke and Reissue
Section 505(e) provides that if cause exists to terminate,
modify, or revoke and reissue a permit under Title V, the
Administrator shall notify the permitting authority and the
source. The permitting authority then has 90 days to forward to
EPA a proposed determination of termination, modification, or
revocation and reissuance, as appropriate. The Administrator may
extend this period for an additional 90 days if a new or revised
permit application is necessary, or if additional information is
needed from the source. The Administrator may review proposed
determinations pursuant to the same section 505 criteria used to
review any proposed permit issuance.
If the permitting authority fails to submit the required
determination, or if EPA objects to it and the permitting
authority fails to resolve the objection within 90 days, the
Administrator may, pursuant to appropriate administrative
procedures, terminate, modify, or revoke and reissue the permit.
The criteria for Federal reopening of a permit for cause to
terminate, modify, or revoke and reissue are essentially the same
as required for State programs. These are discussed in the
following preamble section.
(5) Permit Shield and Reopenings
(a) Shield. Once a permit is properly issued with respect
to Title V (i.e., EPA does not object to the permit in its final
form and adequate public participation has occurred), it is the
comprehensive statement of the source's obligations under the
Act. In accordance with section 504(f), the permit, upon
issuance, shields the source from enforcement for failure to
obtain a permit as set forth in section 502(a).
Section 504(f) states that: "Compliance with a permit
issued in accordance with this title shall be deemed compliance
with section 502. Except as otherwise provided by the
Administrator, by rule, the permit may also provide that
compliance with the permit shall be deemed compliance with other
applicable provisions of this Act that relate to the permittee if
(1) the permit includes the applicable requirements of such
provisions, or (2) 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. Nothing in the
preceding sentence shall alter or affect the provisions of
section 303, including the authority of the Administrator under
that section."
The Act describes a number of situations which are not
protected by the permit shield. First, section 504(f), which
provides for the shield, precludes the shield from being applied
when implementing section 303. Section 303 gives the
Administrator emergency powers to respond to pollution that
produces imminent and substantial endangerment to the health of
persons. Second, section 504(f) gives the Administrator the
authority to exempt, by rule, certain situations from the shield.
Pursuant to this authority, the Administrator is proposing that a
permit shield not afford any protection from liability to a
source that is not in compliance with a standard or regulatory
requirement of the Act at the time an operating permit is issued.
Further, the EPA is proposing that the permit shield would apply
to any permit provisions added or modified by any type of permit
revision. For a minor permit amendment made under the "fast
track" approach, the shield would apply immediately when the
revision becomes effective, i.e., when the permitting authority
fails to object.
In addition, if any applicable requirements were omitted
from the permit during the permit issuance process (i.e., not
addressed as opposed to misinterpreted), the source will not be
shielded from enforcement of those requirements. Otherwise,
emissions subject to omitted regulations, including hazardous air
pollutants, could be emitted entirely unrestricted until the
permitting authority or EPA reopens the permit. The
Administrator is requesting comments on these proposals and any
additional recommendations as to other situations which should be
exempted from the shield, by rule, under section 504(f). The
Agency is also proposing that the permit shield be disallowed
with respect to the acid rain portion of the permit consistent
with new section 408(h). Section 408(h)(2) modifies the effect
of section 504(f), disallowing the permit shield to the extent
the acid rain portion of the permit is inconsistent with Title
IV. Each permit should, therefore, clarify that the shield does
not apply to acid rain requirements, notwithstanding any generic
shield language.
After a permit has been issued, any permit shield can be
preempted by the permitting authority or the EPA only when the
permit is reopened for cause. The Act contains several occasions
for reopening an issued permit, and they are discussed below in
this section.
While use of the shield remains discretionary with the
permitting authority, EPA believes that the section 504(f) permit
shield provision of the Act brings about certain benefits to a
permittee, as well as to the permitting program. Therefore, the
Administrator encourages the permitting authority to employ the
shield to help stabilize the permit process and to give greater
certainty to regulated sources. Because of the shield, unclear
provisions or changes in interpretations will not affect a
shielded source after a permit has been issued, unless it is
later reopened for cause. Uncertain regulatory provisions should
therefore be resolved in a public forum during the permit
processing stage. On the other hand, in nonattainment areas
where the State anticipates new requirements becoming applicable
to a permitted facility during the permit term, the permitting
authority may choose to limit the scope of the shield for those
provisions. Doing so would save the permitting authority and
affected sources the inconvenience of reopening a series of
permits to allow the State to implement its SIP obligations.
The EPA proposes that the permit shield under section 504(f)
remain in effect, to the extent the source is entitled during the
term of the expiring permit, until a renewed or modified permit
is issued, except where inconsistent with State law or as
provided in Parts 72 through 78 for the acid rain portions of a
permit, provided the source submits a complete application for
permit renewal in a timely manner.
The Agency also solicits comment on how comprehensively to
interpret the scope of the shield. One approach is to interpret
it quite broadly. For example, if all the applicable
requirements of section 112 are met in a Part 70 permit at the
time of permit issuance, and are explicitly identified in the
permit as meeting section 112, the source could be shielded by
the permitting authority from any future section 112 requirements
for the term of the permit. Section 502(b)(9) provides support
for this interpretation by calling for the automatic reopening of
a major source permit with a term of 3 or more years in order to
incorporate applicable new standards and regulations promulgated
under the Act after the issuance of a permit. On the other hand,
section 504(f) can be read to shield the source only from those
requirements (read narrowly) that were the subject of the permit-
issuance process and included in the permit. Under this
interpretation, the section 502(b)(9) provision for reopenings
would be viewed as a requirement to ensure the timely
incorporation into the permit of major, new regulatory
requirements in order to maintain the permit as the consolidated
repository of all applicable Act requirements.
The EPA interprets the shield broadly by distinguishing
between the applicable "provisions" of the Act and the applicable
"requirements" of the Act. To expand on the example mentioned
above, if the permit imposes the specific "requirements" of an
applicable MACT standard, or determines that there are no such
requirements under section 112, then the source is protected from
application of the "provisions" of section 112 for the duration
of the permit term.
The regulations as they are now structured follow this broad
interpretation of the shield. The proposed shield provision in
70.6(h) protects a source from new requirements that become
applicable after issuance of the permit.
(b) Permit Reopening. After a permit has been issued, any
established permit shield under section 504(f) can be preempted
by a permit reviewing authority or the EPA where the permit would
be reopened for cause. The Act contains several occasions for
reopening an issued permit, and provides several instances in
Title IV where changes to the permit are to be incorporated
without reopening.
One occasion for reopening a permit is in section 505(b)(3).
It provides that if the EPA objects to a permit, the EPA shall,
if a permit has already been issued, either modify, terminate, or
revoke such a permit, and the permit reviewing authority may
afterwards only issue a revised permit in accordance with section
505(c).
Another occasion for reopening a permit is for cause.
Section 502(b)(5)(D) requires that a permitting authority must
have adequate authority to terminate, modify, or revoke and
reissue permits for cause. Both the permit-reviewing authority
and the EPA can require a permit to be reopened for cause. The
EPA interprets this to mean a compelling reason to reopen a
permit, for example, where a substantial error has been made in
permit processing or data submittal whose correction cannot wait
until renewal, or where fraud on the part of the source has been
found. Reopening of the permit "for cause" would also be
appropriate in order to incorporate the NOx limits for affected
sources under the acid rain program. Permit applications for NOx
are not due from affected sources until after the statute
requires States to have issued permits for these sources. To
include NOx limits in these permits prior to reissuance, the
permits will need to be reopened. [States should be aware,
however, that permit revision procedures for acid rain sources
will be affected by Part 72 regulations.] Cause should not
include trivial matters (i.e., changes in a permit which cause an
inconvenience to a source but do not have a significant effect on
assuring compliance with Act requirements). The EPA is
requesting recommendations for events and situations which
provide cause for both the EPA and a permitting authority.
The EPA proposes not to require a permit to be opened for
cause until after a permitting authority has had an opportunity
to act expeditiously under its own authority to reopen a permit
for cause. If EPA notifies the State, pursuant to section
505(e), it will then get 90 days to make the appropriate change.
The EPA further proposes that permit reopenings be processed
under the permit issuance process, with one important exception:
The EPA proposes to require the permitting authority to provide
the source 30 days advance notice before reopening and revising a
permit for cause when it is reopened pursuant to section
502(b)(9), as discussed below.
Certain changes cause permits to be reopened automatically
as defined in section 502(b)(9). The EPA believes that section
502(b)(9) should be read to require that the permitting authority
reopen permits for major sources with 3 or more years remaining
in the permit's life (rather than reopen all permits with
original terms of 3 or more years) to incorporate standards and
regulations promulgated under the Act which are promulgated after
the issuance of such a permit. The EPA has rejected the
alternative interpretation stated in the parenthetical because it
would lead to absurd results. For example, a major source permit
with a 35-month term, and 34 months remaining until expiration,
would not have to be reopened upon promulgation of an applicable
standard or regulations; yet a major source permit with a 40-
month term, and 19 months remaining until expiration, would.
Besides being unreasonable, this would create a strong incentive
for States to issue permits with artificially short permit terms,
thus creating much additional paperwork with no corresponding
environmental benefit. It would also be disruptive of existing
State permit programs because many now issue permits with 5-year
terms. The EPA therefore believes that the alternative
interpretation was not the result intended by Congress.
Revisions must be made as expeditiously as practicable
according to section 502(b)(9), but no later than 18 months after
the promulgation of such standards and regulations. The 30-days
advance notice to affected sources is again proposed as a
requirement for the permitting authority.
Finally, certain changes will cause a revision to the permit
by operation of law without necessitating any sort of reopening
of the permit. For example, all acid rain allowance allocations
and transfers shall, upon recordation by EPA, and in accordance
with section 403 of the Act and Part 73, be deemed a part of each
unit's acid rain permit requirements, without any further permit
review and revision [403(d)(1)]. In addition, excess emission
offset plans shall be deemed included into the permit upon
approval by the Administrator, but without any further permit
review or revision [411(b)].
(6) Permit Renewals
Section 502(a) of the Act States that it is a violation for
a source subject to Title V to operate without a permit.
Furthermore, section 502(b)(5)(B) requires that permits be issued
with a fixed term of 5 years for acid rain affected sources and
with a fixed term not to exceed 5 years for all other sources,
except for solid waste incineration units subject to section
129(e), which can have terms of up to 12 years. The section
502(a) requirement to have a valid permit is qualified in part by
section 503(b) which states the source is not in violation of
section 502(a) if a complete and timely application for renewal
has been filed by the source owner, unless the delay in final
action was due to the failure of the applicant to submit any
required information requested to process the application. The
EPA proposes that a timely submittal must allow sufficient time,
before the expiration date of the permit, for the permitting
authority to review and reissue the permit. The EPA believes, at
a minimum, that this time must include the 45 days for EPA
oversight and adequate time for permit processing, including
public participation. In some cases, additional time may be
necessary to be consistent with other review procedures.
Therefore, EPA proposes the timetable for application submittal
by the source be included as a condition within the permit and be
for a period of 18 months unless a different time period is
approved by the Administrator. This time presumptively would be
correspondingly reduced in the case of permits with fixed terms
of less than 5 years or where the permitting authority is
obligated to act on the application in less than 18 months.
Section 502(b)(5)-(7) requires applications for permit
renewal and the subsequent permits to be subject to the same
requirements as were the initial applications and permits with
respect to permit content and processing. This includes allowing
up to 18 months to process a complete application. Section
502(b)(5)(C) specifically requires that, upon renewal, all
permits incorporate all applicable emission limitations and other
requirements of the SIP. The EPA is proposing in 70.7 to
minimize the burden of processing permit renewals by taking
advantage of the fact that, in many cases, much of the data and
analyses pertinent to the earlier permit is still applicable for
the permit renewal. Upon certification by the source owner or
operator that no significant change has occurred at the source
since the time the existing permit was issued, a permit-renewal
application can, at the option of the permitting authority,
reference the relevant material submitted in earlier applications
as an alternative to resubmitting the material. In addition, the
renewal application must contain, in accordance with section
502(b)(9), those items related to new regulatory requirements
which have become applicable to the source, any other regulatory
requirements which have been determined to apply to the source,
any other changes which would ordinarily require or permit
modification.
Although referenced material in the renewal application was
at one time subject to public comment and EPA review under the
permit-renewal process, it is again subject to all the provisions
of the permit-review process. Section 505(a) requirements for
the transmission and notice of permit applications specially
affirm their applicability to renewals as well as those
applications processed during the original issuance of the
permit.
If the term of a permit expires before a complete
application is submitted, the source's right to emit is
terminated. The source is subject to enforcement action if it
continues to operate even though a complete application is
eventually submitted until it receives a new permit. The EPA
proposes that the permit shield described in section 504(f),
remain in effect with respect to requirements addressed in the
permit provided the source submits a complete and timely
application for permit renewal. However, the permit shield will
be disallowed if requirements are inconsistent with the acid rain
title.
Issues arise as to what requirements are enforceable on the
source after the fixed term of its current permit expires and the
source owner has not received a new permit. The EPA proposes
that expired permit terms should remain enforceable as they are
in the NPDES program, except where inconsistent with State law or
as provided in Part 72 for the acid rain portions of a permit.
In addition, any new requirements, from which the source was
previously insulated by the permit shield in section 504(f),
would apply upon expiration of the permit [IV.G.(5)].
Section 502(b)(9) deals with the need for certain permits to
be reopened in the event that applicable standards and
regulations are promulgated after the issuance of such permit
[70.7]. This type of permit revision must be treated as a permit
renewal and is subject to all the requirements described today
which address permit renewals.
Finally, as permits which were processed in the transition
period are reviewed, EPA encourages reviewing authorities to
establish new fixed terms (e.g., terms of 3, 4, and 5 years) in
these permits that balance the future workload. That is, the
reviewing authority should define new schedules for renewal
within reissued permits which take advantage of the 5 year
timeframe opportunity rather than the 3 years required for
transition.
(7) Operational Flexibility and Permit Revisions
(a) General. During discussions preceding the proposal of
these regulations, many in the regulated community expressed
concern over the ability of states to make changes in permits to
reflect routine operational changes. Several different aspects
of the permit program provide substantial flexibility for
industry to make changes in operations without having to obtain
prior governmental approval in the form of amendments to the
existing terms of their permit.
Sections 70.6(d) and 70.7 of this proposed regulation set
forth the framework for operational flexibility and permit
revisions. More specifically, they establish minimum procedures
for four classes of changes at sources: 1) changes under the CAA
section 502(b)(10) that require no prior revisions to the permit
(see 70.6(d)); 2) changes classified as "minor permit
amendments" (see 70.7(f)); 3) changes classified as
"administrative permit amendments" (see 70.7(e); and, 4)
changes classified as "permit modifications" (see 70.7(d)).
The last three of these are grouped together under the term
"permit revisions" (see 70.2(v)). These changes are discussed
below.
(b) Flexible Source Operation Under CAA section 502(b)(10).
The first, and perhaps the most important, source of flexibility
is the general principle, articulated elsewhere in this preamble,
that emissions or other practices not specifically prohibited by
a permit are allowed if otherwise legal under the SIP and
applicable federal or state law (see preamble discussion at
section IV.E.5.b). Air permits summarize existing restrictions;
a permit change is not affirmatively required to authorize every
change in practices which are otherwise legal under the SIP or
federal law merely because an existing permit does not address
the practice. Thus, changes in industrial practices and
procedures that do not run afoul of the terms of a permit can be
made without seeking any change to the terms of the permit. For
example, an industry would be free to alter its production
processes in ways that alter its emissions unless some term of
the permit (or other provision of the law) prohibits the change.
Permits should be drafted with this principle in mind, so that
they do not include unnecessary detail or restrictions which
might unduly hamper industrial flexibility to change operations
at a later date. See discussion of designing flexible permits in
section (f) below. The states do, of course, have the ability to
devise permit programs that would enable sources to choose
between: 1) making changes that do not violate the permit without
including them in their permits; and, 2) including such changes
in the permit pursuant to the procedures established by the
state. In the latter case, the sources would have the benefit of
a permit shield.
If the explicit terms of the permit do prohibit a practice
(for example, if a compliance plan for a noncomplying source
contains specific provisions regarding how a source plans to
comply which it then not wishes to change), the operational
flexibility provisions under section 502(b)(10) of the Act (
70.6(d)) provide a "fast track" process for changing the terms of
the permit without undue delay provided that the changes do not
involve an increase in the level of regulated emissions allowable
under the permit.
Although section 502(b)(10) avoids having the States and EPA
continually repeat the full permit-review process for minor
changes in operation, it does not alter a source's obligation to
comply with any requirements of the Act that apply to its
operations. This conclusion is suggested by the interaction of
the "permit shield" provisions in section 504(f) with the
"operational flexibility" provisions in section 502(b)(10). The
permit shield provides that compliance with a permit is deemed to
be compliance with the requirements of the Act to the extent the
permit contains those requirements of the Act or contains a
specific finding that a requirement does not apply. To the
extent a permit does not address requirements that apply to a
change in operations at a facility, those requirements are
necessarily outside the scope of the protection provided under
the permit shield provision, unless the permit has been revised.
Where the change would not be allowed in the permit but would not
allowable emissions under the permit, EPA interprets section
502(b)(10) to require that the source give at least 7 days
advance written notice to both the permitting authority and EPA.
This notice must contain sufficient information to determine what
new requirements of the Act apply (if any) to the changed
operations. Of course, the permitting authority must incorporate
any new requirements upon renewal. The EPA is therefore taking
comment on its proposal to require an update of the permit after
notification has occurred, provided that the new version of the
permit be made publicly available.
The EPA believes that this proposal gives certainty as to
what requirements are applicable to the source and assures the
permit is consistent with section 502(b)(10), which specifies how
sources may act without the need for a permit revision to
incorporate changes not anticipated during permit issuance. In
any case, upon renewal, the new conditions would be eligible for
protection by the shield.
(c) Minor Permit Amendment. There remains a class of
changes in facilities that would result in emissions above what
is allowed in the permit that do not rise to the level of
"modifications" under Title I of the Act. For example, a permit
might include emission limitations based on a RACT requirement in
a SIP. If the permittee changes operations so as to become
subject to a less stringent RACT limit in the SIP, it cannot
increase its emissions to levels authorized by the new RACT limit
without a change to the permit emission limitation. EPA has
extensively considered whether additional provisions might permit
increased emissions above permit allowables, as long as such
increases would not violate any applicable requirement.
The Clean Air Act provides procedures for changing or revising
permits. Section 502(b)(6) requires:
"adequate, streamlined, and reasonable procedures for
expeditiously determining when applications are complete,
for processing such applications, for public notice,
including offering an opportunity for public comment and a
hearing, and for expeditious review of permits actions,
including....revisions...."
With regard to permit changes that are considered
"revisions" for purposes of Sec. 502(b)(6), EPA notes that the
statute does not mandate specific procedures to be used for
making "revisions" to permits. The primary thrust of section
502(b)(6), as EPA reads it, is a pronounced Congressional concern
that the procedures used to issue or revise permits should not
result in undue delay, as evinced by Congress's use of the terms
"streamlined" and "expeditious". Beyond that, section 505 does
not clearly prescribe which, if any, types of permit
modifications must undergo EPA review.
EPA believes that the statutory language leaves substantial
discretion to the states, as permitting authorities, to devise
appropriate procedural schemes for making expeditious revisions
to permits, including "fact-track" procedures to facilitate
operational flexibility. As a matter of policy, EPA believes
that states should be encouraged to implement expedited 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 a minimum of 7 days notice. (Today's proposal
includes a minimum set of procedures incorporating this 7 day
notice requirement; see 70.7 (f)). The notice would go to the
permitting authority and the Administrator. After waiting the
required 7 days, the source may make the change unless the
permitting authority objects to the notice change within the 7
day period.
EPA will review the procedures for revising permits proposed
by states in their permit programs in conjunction with EPA's
review of the applicable implementation plan. No particular form
of procedures for revising permits is required. The basic test
is whether a state's procedural system, taken as a whole, can
assure that the national ambient air quality standards and other
substantive requirements of the Act will be maintained and
enforceable. See section 110(a). If the state's procedures can
be administered in a way that would provide adequate mechanism
for tracking permit revisions (either ex ante or ex post) to
ensure that the substantive standards of the Act are met, EPA
should ordinarily approve them, rather than speculate that the
procedures might be misapplied. If a state subsequently applies
its procedure for revising permits in a way that results in
violations of air quality standards or other requirements of the
Act, EPA has adequate remedies available to it under the Act,
see, e.g. section 110(k)(5) (calls to order revisions to SIP
found inadequate); section 502(i) (assure adequate permit
programs).
EPA solicits comment on what are the appropriate criteria
for EPA to use in approving state procedures for revising
permits.
(d) Administrative Permit Amendments. The second type of
permit revision is defined in Part 70 as an administrative permit
amendment and includes administrative changes such as correction
of typographical errors, changes in address, change of ownership,
etc. [for a full list, see 70.2(c)]. The EPA proposes that
administrative permit amendments can be handled by direct
correspondence from the permitting authority to the facility
after the appropriate information related to the changes has been
supplied by the facility. Administrative permit amendments will
address only the items prompting the amendment(s). A copy of the
amendments should be supplied to EPA and a copy also placed in
the record, which is available to the public in accordance with
section 503(e). The EPA is proposing that the following types of
changes can, at the discretion of the permitting authority, be
handled as administrative permit amendments and that such changes
should be reported to EPA, but no later than the date specified
for the at least semi-annual reporting on the source's compliance
status. These types of revisions include changes in mailing
address, ownership of the source (or part of the source) unless
restricted by Title IV, contact persons, changes in individuals
who have assigned responsibilities, (including the responsibility
to sign permit applications), and similar changes as determined
by the permitting authority.
The Agency also believes that correction of typographical
errors should be accomplished through the administrative permit
amendment procedures, rather than the permit modification
procedures. In addition, the Agency requests comments on whether
the permit amendment procedures are appropriate for requiring
more frequent monitoring, and for exempting a unit from
permitting requirements where emissions from the unit have
terminated, so long as the termination of emissions from that
unit does not result in an increase in emissions from any other
unit or units. The EPA invites the public to propose other types
of changes that should be handled by the administrative permit
amendment process and comment on these suggestions.
In addition, EPA is today proposing to treat one other type
of change initiated by an existing source as administrative
permit amendment and eligible for the mentioned expedited
processing. Changes which have been processed under the
preconstruction review process which has been approved by EPA
into the SIP have already in a source-specific way been subjected
to sufficient technical review and adequate opportunity for
public participation. The Administrator believes that to require
the permit revision procedure described in section 502(b)(6) to
be followed simply to incorporate the results of the NSR program
is unnecessary and redundant. Moreover, subjecting sources to
another review could subject vast numbers of sources to
significant delay and uncertainty without any real environmental
benefit. The EPA believes, therefore, that the permitting
authority should be allowed to revise the Part 70 permit
administratively to reflect NSR limits. EPA also solicits
comment on whether the reviewing authority could instead issue a
separate permit incorporating both preconstruction review and
Part 70 requirements for those activities involved in the
modification. These requirements would be incorporated into the
conditions of the permit of the entire source upon its renewal.
(e) Permit Modifications. The third type of permit
revision is a "permit modification", which includes any proposed
revision to reflect a change at the source that would constitute
a modification under any provision of Title I of the Act (except
as provided in 70.2(c)(5). See 70.7(d). For purposes of
Title V, certain changes in monitoring procedures which could
increase emissions would also be included in the definition of
permit modification. Such changes are situations where the
proposed monitoring technique, in conjunction with permit
emission limits, will allow emission measurements to deviate from
the actual emission levels allowed in the permit by more than the
applicable thresholds that trigger Title I modifications. Before
a permit modification can be issued, the proposed changes must be
reviewed by the permit authority and submitted to the public and
EPA for comment in accordance with the procedures proposed in
70.8. The EPA stresses that only the subject material associated
with, or affected by, the modification need be exposed to review
and comment.
The Administrator proposes that a permit modification would
not affect the expiration date of the permit. Adjusting the
fixed term of individual conditions would place the permit
renewal schedule on multiple tracks, and would be both confusing
and resource intensive. The only parts of a permit that require
change are those which relate directly to the material being
modified. Of course, a State may choose to issue a new permit,
rather than simply modify the existing one. Acid rain permits,
however, must be issued for a fixed term of 5 years. In order to
promote national consistency in acid rain permitting, the Agency
is recommending that, when modifying provisions in a permit for
an acid rain-affected source, the permit not be reissued.
(f) Designing Flexible Permits. Permits should allow the
source reasonable operating flexibility while enforceably
imposing the Act's requirements. Operational flexibility is
often a concern to manufacturers who must respond quickly to
changing economic conditions and market opportunities if they are
to remain competitive in the global market place. It is also
important to regulators. Processing unnecessary permit
modifications for routine changes takes time and provides little
environmental benefit. To the extent that permitting authorities
can accommodate a source's anticipated emissions, the source will
be less likely to have to reopen its permit, and the public will
be better apprised of the requirements applicable to the facility
over time.
The following examples of industrial operations underscore
the need for operational flexibility. Various aspects of
automobile plant operation frequently change, not only from one
model year to the next but also within the model year.
Pharmaceutical batch plants produce small quantities of chemicals
to meet consumer demands for new or specialized products.
Although the types of chemical feedstocks and corresponding
emissions can generally be predicted over the longer run, short-
run market demands are often unpredictable and the manufacturer
must be able to respond quickly. Leasing of chemical and
petroleum storage tanks at ports and pipeline terminals presents
another challenge because of the wide range of chemicals handled,
often on short notice.
Several State permitting authorities confront these issues
now, and many regulatory agencies have found creative ways to
give industry flexibility while ensuring that the underlying
requirements of the program are still met. These approaches have
been recognized by the affected parties as appropriately
implementing and making enforceable the requirements of the Act,
while providing industry with needed operational flexibility.
The EPA is proposing a policy for incorporating flexibility that
is consistent with existing State permitting practices.
While EPA believes that operational flexibility is important
to the fair and efficient implementation of the permitting
program, this practice must be carefully implemented if Title V
permits are to ensure application of all regulatory requirements
and reasonable enforcement of those requirements. Therefore,
this relief is necessarily limited in several important ways.
First, it is clear that allowing sources flexibility is a
way of meeting the applicable requirements, not of avoiding them.
A source cannot be granted a level of flexibility in its Title V
permit that would allow it to avoid application of applicable
requirements of the Act, whether imposed by NSR, NSPS, NESHAP, or
through implementation plans.
Second, any limits must be clearly enforceable. Any
alternative limits can be issued only to the extent that they are
allowed by the underlying applicable requirements.
Third, the degree of flexibility available to the source may
vary with circumstances specific to the source or pollutant. For
example, if carbon adsorption is used for emissions control, the
permit may need to pay special attention to species of VOC's
(e.g., some may "break through" the carbon bed, or a different
type of carbon bed may be indicated for alcohols).
When developing a flexible permit that accommodates several
operating scenarios within the terms of the permit, the
permitting authority must assure that the permitted source
monitor and record the operating scenario under which the source
is operating at all times.
The EPA is evaluating administrative mechanisms that would
provide for permit drafting such that a source could, in the
course of normal operation, readily change production methods
without needing to apply for a modified permit for each change.
This exemption from permit revision would not, of course, exempt
from permit review any operational changes that cause a source to
be newly subject to any requirements of the Act. The permitting
authority must ensure that any permit conditions designed to
provide operational flexibility must be clearly identified as
such to be highlighted for EPA review. Various types of
candidate approaches are described below. Public comment is
solicited on these and other approaches to implement the
requirement to provide operational flexibility.
(i) Permit in the Alternative: The permit can list the
pollutants and control requirements for the anticipated operating
scenarios. The permit would specify the source's pollution
control requirements for each anticipated process or product line
to be used. For example, the permit for a chemical batch
processing facility can allow for various configurations and
operating practices that the facility plans to use, obviating the
need for obtaining additional approval when the changes are made.
(ii) Permit by Classes of Chemical: State programs often
provide that groups of chemicals can be treated interchangeably
for certain purposes. For example, a State's requirements for
VOC emissions from storage facilities may be based on classes of
compounds, classified by vapor pressure, rather than single
compounds, e.g., the most volatile compounds could be stored only
in pressurized tanks, those of intermediate volatility could be
stored in floating roof tanks with double seals, while those of
lowest volatility could be stored in fixed roof tanks. One State
reports that it uses this approach in addressing the needs for
operational flexibility in permitting extensive tank farms
providing contract storage of chemical and petroleum products at
a port and pipeline terminal. The State clearly specifies
control requirements based upon five classes of chemicals,
allowing the facility complete freedom to store any chemical in
any tank with the required, or higher, level of control. This is
enforceable because it allows a field inspector to determine
compliance unambiguously for any chemical stored in any tank,
without burdensome restrictions on the facility's freedom to
manage its operations efficiently.
(iii) Permit in Anticipation of the Most Restrictive Case:
A State may appropriately allow considerable flexibility if the
worst case emissions scenarios are dealt with in the permit, or
if the source agrees to specific controls or other limitations,
such as those on capacity utilization. For example, a source
might be given great flexibility in the type of VOC emitted, if
it agreed to provide emissions controls consisting of both carbon
adsorption and incineration. Another example reported by a State
involves a chemical storage facility that routinely is asked to
store any of numerous types of chemicals, often on short notice.
The source and State came to an agreement whereby a very wide
range of chemicals could be stored, if stored in pressurized
tanks and the emissions were flared.
H. Section 70.8 - Permit Review by EPA and Affected States
(1) General
Under the permit review process spelled out in section
505(b), the Administrator shall object in writing to the issuance
of any permit determined not to be in compliance with the
applicable requirements of the Act, including the SIP. To
minimize delay, the Act limits EPA's opportunity to object to 45
days after receipt of a proposed permit. To approve a proposed
permit, EPA need take no action. A "proposed" permit, for
purposes of sections 505(a)(1) and (b)(1), is one the State
submits to EPA after the public notice period and after it
considers any public comments. The submittal of the proposed
permit must also contain any notice required in section
505(a)(2)(B) describing why the permitting authority failed to
accept recommendations on the proposed permit from any affected
State (i.e., one whose air quality may be affected and are
contiguous to the State in which the emissions originate, or that
is within 50 miles of the source). If the State so chooses, the
permit will automatically be issued at the end of the 45-day
review period, unless EPA has objected to its issuance. The
objection must be accompanied by a written statement of the
reasons for the objection, and both must be provided to the
applicant.
Each permit must contain all provisions required by Title V,
such as monitoring, reporting, and compliance certification
requirements. Failure to include these provisions is a basis for
EPA veto. All permits involving SIP-regulated sources must
interpret, implement, and apply the SIP in an enforceable manner
to the permitted source. For example, if the SIP fails to
specify a test method, the permitting authority must specify one
in the permit. Failure to properly apply a SIP to the particular
permitted source so that it is fully enforceable is a basis for
EPA veto.
If EPA does not object, any person may petition the
Administrator to do so within 60 days after the expiration of the
45-day review period [505(b)(2)]. If petitioned, the
Administrator has 60 days to determine whether to grant or deny
the petition, and he shall grant the petition if it demonstrates
that the permit is not in compliance with the requirements of the
Act, including those of the applicable SIP. If he denies a
petition, the denial is subject to judicial review under section
307 of the Act. Regulations implementing this process are set
forth in 70.8(d). It should be noted that a petition does not
postpone the enforceability of a permit that has been issued.
A timely EPA objection, unless withdrawn, is effectively a
veto, for the State permitting authority may not issue the permit
as a Part 70 permit, unless it is revised to satisfy EPA's
objection and resubmitted for approval [505(b)(3) and (c)]. The
EPA proposes that, once the Agency approves the revised permit in
writing, the permit may be issued. Pursuant to section 505(c),
if the permitting authority fails to make the necessary changes
and submit the revised permit to EPA within 90 days of the
objection, EPA must issue the permit with changes, or deny the
permit. This action by EPA would be subject to judicial review
[V.D.]. While the possible EPA objection to the issuance of a
Part 70 permit is being resolved, all applicable requirements of
the Act still apply, except for the section 502(a) requirement to
obtain a Part 70 permit (assuming that the source has filed a
complete application and any required supplementary material).
The EPA intends to use the Part 71 process (discussed in section
VI) in issuing any permit for which the Agency becomes the
permitting authority.
Section 505(b)(1) provides that EPA has a duty to object to
a permit when it "contains provisions that are determined by the
Administrator as not in compliance with the applicable
requirements of this Act." The EPA views this duty as a
discretionary one, however, since it is predicated on a
determination by the Administrator of noncompliance. That
determination is discretionary. [cf. Sierra Club v. Train, 557
F.2d 485 (5th Cir. 1977) holding that section 113 enforcement is
discretionary despite parallel construction.] In any case, any
duty to object is not enforceable by citizen suit. That is clear
from the structure of the statute, which provides in
section 505(b)(2) a petition process for citizens who wish EPA to
veto a permit, and from the legislative history, which shows that
the petition process is a replacement for the Senate bill's
approach, which would have imposed on the Administrator a
nondiscretionary obligation under section 304, to object to
unlawful permits. Finally, a citizen suit would not lie under
the applicable case law to compel a veto under section 505(b)(1),
since no explicit statutory deadline is provided [see cf. Sierra
Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987)].
Even the petition process under section 505(b)(2) leaves the
Administrator with an element of discretion. Although the
Administrator must grant or deny any petition within 60 days, he
must object only "if the petitioner demonstrates to the
Administrator that the permit is not in compliance with the
requirements of this Act, including the requirements of the
applicable implementation plan." This language plainly puts the
burden of showing a violation on the petitioner. It remains
discretionary whether the Administrator should object in cases
where the record does not clearly disclose failure to comply.
The petitioner must also raise objections "with reasonable
specificity" during the comment period before the state, or to
demonstrate to the Administrator in the petition to object that
it was impracticable to do so. The EPA believes that Congress
did not intend for petitioners to be allowed to create an
entirely new record before the Administrator that the State has
had no opportunity to address. Accordingly, the Agency believes
that the requirement to raise issues "with reasonable
specificity" places a burden on the petitioner, absent unusual
circumstances, to adduce before the State the evidence that would
support a finding of noncompliance with the Act.
(2) Waiver of EPA Review
The statute provides two different mechanisms that allow EPA
to waive the notification requirements discussed above. First,
at the time of the approval of a State program, EPA may waive the
notification requirements for any category of sources (including
any class, type, or size within the source category), except that
EPA cannot waive the requirement in the case of major sources
[505(d)(1)]. The Agency will not waive its right of review of
permits for acid rain affected sources. Second, EPA may waive
the notification requirements on a nationwide basis, through the
promulgation of regulations applicable to all permitting
programs. The same restriction against waiving the requirements
in the case of major sources applies to this option as well
[505(d)(2)]. When EPA waives the notification requirements by
either of these means, the Agency ordinarily will not perform the
permit review generally required by section 505(b).
The EPA is not proposing any categories of sources for
national waivers from review. Comments are invited, however,
with respect both to potential categories for such a waiver and
to the appropriate use of waivers at the State level, and on
means of implementing them, such as through agreements with the
States. Similarly, EPA seeks information on the use of waivers
on a State-specific basis and the use of various mechanisms, such
as audits and agreements between EPA and the States regarding
coordination of activities, to efficiently implement such waivers
or to set priorities for EPA review of State permitting [V.A.].
The EPA also solicits comment on the potential use of
various review practices for quality-assuring the permitting
process and carrying out the Administrator's responsibilities
under section 505. Although EPA wishes to minimize
administrative burdens, the Agency takes seriously its
responsibility for quality assuring permitting, for which it
shares enforcement responsibility.
Public comment is also solicited on the legal availability
and appropriateness of waivers of notification for particular
classes of sources, on a State-specific basis, after approval of
a permit program. Section 505(d)(1) provides that the
Administrator may waive this requirement "at the time of approval
of a permit program under this title." Although this clause
could be read as referring only to initial approval of the State
program, it seems consistent with good oversight practice and the
spirit of Title V itself that such waivers could be granted
through EPA rulemaking whenever appropriate. Such practice would
not be inconsistent with any of the statutory safeguards and,
indeed, waivers may be more effectively tailored once a State has
established a track record and a working relationship with the
EPA Regional Office with respect to permitting various types of
sources.
(3) EPA Veto
The general framework for EPA's veto of State operating
permits is set forth above. The following are various issues
that may arise from the implementation of this process.
(a) Inadequate Information Provided by Permitting
Authority. Although EPA's duty to object to permits that are
inconsistent with the requirements of the Act is clear, EPA also
believes that it can object to the issuance of a permit where the
materials submitted by the State permitting authority to EPA do
not provide enough information to allow a meaningful EPA review
of whether the proposed permit is in compliance with the
requirements of the Act (including the SIP). Although section
505 may not expressly provide for objection to a permit on this
ground, EPA believes that not allowing the Agency to object under
these circumstances could severely hamper its oversight role.
Without adequate information, it will be impossible to determine
whether a proposed permit conflicts with the requirements of the
Act. Given Congress' clear intention that EPA veto permits
conflicting with these requirements, EPA believes that this form
of objection is reasonable and necessary [301]. Of course, EPA
needs to work with States to develop a clear understanding in
advance as to the amount and type of information needed to
exercise reasonable Federal oversight. When EPA objects to
issuance of a proposed permit because the State has not provided
enough information, it will accompany the objection with a
statement of what additional information is needed. The State
would then be responsible for forwarding the additional
information to EPA within 90 days. Once this needed information
is supplied to EPA, the Agency's 45-day review period will begin
anew. If the additional information is not supplied, EPA will
deny the permit or issue it with whatever changes are necessary
to ensure compliance with the Act. The EPA solicits comment on
this approach to obtaining adequate information and its authority
for so implementing it.
(b) Failure of a State to Issue. The Act requires that a
permitting authority issue or deny a permit within 18 months of
receipt of a complete application. Further, the State is
required to provide the Administrator copies of proposed and
final permits to be issued. Where the permitting authority fails
to provide these permits to EPA due to failure to issue or deny
within the 18-month timeframe, this may be considered grounds for
an EPA objection. The EPA would then request a proposed permit
from the State with any additional information needed. If the
permit is not received within 90 days, the Administrator will
issue the permit.
(c) Streamlining the Process Through Early Federal
Participation. Some States have expressed concern that EPA
objections could unnecessarily slow some permitting exercises.
One implementation approach that might allay this concern could
be early EPA participation in the State's permitting action. For
example, a State and EPA could agree that, for certain permits or
classes of permits, EPA would review draft permit materials
submitted to EPA even prior to the State's release of the draft
proposed permit for public comment on permit issuance.
Alternatively, the Agency could require that summary forms with
certifications be filled out to prioritize the need for more
extensive EPA involvement. The EPA could indicate, either
officially or informally, whether it would object to any aspect
of the proposed permit based on the draft and/or summary form.
This might prove to be an effective way to enhance State and EPA
cooperation on permit issuance. Such procedures might be
formally established in implementation agreements between EPA
Regional Offices and the States.
(d) Status of Proposed Permit if EPA Objects. If EPA
objects to a proposed permit, the permit, as proposed, does not
get issued. During this period of review and negotiation, the
previously-issued permit and all applicable regulatory
requirements continue to apply, except where inconsistent with
State law or as provided in Part 72 for the acid rain portions of
a permit. For acid rain affected sources, if the previously-
applicable permit has expired, the permit application and
compliance plan will be binding on the source until the new
permit is issued [408(d)(3)].
(e) EPA Action Upon Veto. Pursuant to section 505(c), if
the permitting authority fails to submit a revised permit meeting
EPA's objection within 90 days of the objection, the
Administrator shall issue or deny the permit. The EPA's issuance
of permits will be made pursuant to the Federal permitting
program to be contained in Parts 71 and 124 [VI.]. This program
will be proposed at the same time that EPA takes final action on
today's proposal regarding State programs and will closely
parallel the permitting practice required for State programs.
Part 71 will contain all necessary provisions for EPA to
administer a State program where a State defaults, although EPA
may choose to make it effective only for certain areas and/or
sources in order to address areas of concern.
(f) Public Petitions Regarding Decisions Not To Veto.
Given the brevity of the EPA review period and the complex nature
of many permits, there will be occasions in which EPA may not
recognize that certain permit provisions do not comply with the
requirements of the Act. If this happens, the statute provides
an opportunity for citizens to petition EPA to reconsider its
decision not to object to issuance of the permit. Within 60 days
after expiration of the 45-day EPA review period, any person may
petition the Administrator to object. This petition must be in
writing, and the petitioner must provide a copy to the State
permitting authority and to the permit applicant [505(b)(2)].
The petition must specifically state why the petitioner
believes that the permit conflicts with applicable requirements
of the Act and cite the particular provisions alleged to be
inconsistent. Moreover, section 505(b)(2) provides that "[t]he
petition shall be based only on objections to the permit that
were raised with reasonable specificity during the public comment
period provided by the permitting agency (unless the petitioner
demonstrates in the petition to the Administrator that it was
impracticable to raise such objections within such period or
unless the grounds for such objections arose after such period)."
This section of the statute specifically provides that filing of
the petition does not postpone the effectiveness of the permit.
Thus, the new permit remains in full effect, and the source may
operate under its provisions pending EPA's consideration of the
petition. Sources should be aware, however, that under these
circumstances EPA may object to the permit. Upon such objection,
particular provisions of the permit may no longer shield the
source from enforcement of certain other requirements of the Act.
In other words, the source may become subject to revised or
additional requirements. It therefore may be advisable for
sources to await the outcome of the petition process before
making changes that are consistent with the recently issued, but
contested, permit.
The Administrator is required to grant or deny such a
petition within 60 days after it is filed. If he grants the
petition, he will object to the permit as not being in compliance
with the requirements of the Act [505(b)(2)]. If the permit has
already been issued, "the Administrator shall modify, terminate,
or revoke such permit and the permitting authority may thereafter
only issue a revised permit in accordance with paragraph (c)"
[505(b)(3)]. In other words, the permitting authority must
follow the same procedure as if EPA's objection had been made
during the 45-day review period. In accordance with the proposed
policy on reopening permits for cause, EPA is proposing not to
require a permit to be modified, terminated, or revoked until the
permitting authority has had an opportunity to act expeditiously
under its own authority.
In the event that the Administrator denies the petition, the
permit remains unaffected, as if no petition had been filed.
Denials of petitions will be accompanied with a statement of the
reasons for this action.
I. Section 70.9 - Fee Determination and Certification
(1) Section 70.9(a) - Fee Requirement
This section establishes the requirement for an owner or
operator of a source subject to the requirement to obtain a
permit to pay an annual fee sufficient, in aggregate, to fund the
permit program. This provision is designed to ensure the
permitting authority's ability to perform the necessary air
quality permitting and associated management functions entrusted
to it. The State is also charged in this provision with assuring
that the revenue generated from permit fees be used solely to
offset the appropriate costs associated with the permit program.
The Act provides that the State program must ensure that
Part 70 sources pay fees sufficient to cover "all reasonable
(direct and indirect) costs required to develop and administer
the permit program requirements of this title, including [the
small business stationary source technical assistance program]
and including the reasonable costs of [certain enumerated
activities]." A State fee program must also cover the
development and implementation costs of any local agency program
[502(b)(3)(A)].
The Act further provides that the fees "shall be utilized
solely to cover all reasonable (direct and indirect) costs
required to support the permit program" [502(b)(3)(C)(iii)]. The
EPA wishes to confirm that this restriction applies to State, as
well as Federal, collection of fees. Although the restriction is
located in section 502(b)(3)(C) [which primarily addresses EPA
collection of fees], it references the general fee provisions
"under this subsection." The legislative history confirms this
interpretation. For example, the report of the Senate Committee
on Environment and Public Works provides that fees shall be
utilized to support the air pollution control program of the
State permitting authority" (emphasis added) [S. Rep. No. 228,
101st Cong., 1st Sess. 351 (1989)].
If the State program fails to provide an adequate fee
schedule, or does not implement its fee program properly, EPA is
authorized in section 502(b)(3)(C)(i) to assess an amount
appropriate to cover EPA's costs associated with administering an
EPA-promulgated permit program. The EPA also solicits comment on
whether the Agency may assess fees to cover other costs such as
the State costs in developing and administering the permit
program. The EPA also solicits comment on whether, additionally,
EPA may assess and return to the State, a sum to cover air
program costs related to the permit program (e.g., the portion of
SIP-development costs related to Part 70 sources).
The EPA may undertake the action stated above regardless of
whether it or a State agency ultimately issues the permit.
Penalties and interest may be collected as appropriate.
(2) Section 70.9(b) - Fee Schedule Adequacy
Section 70.9(b) describes the criteria against which the
adequacy of any fee schedule submitted to EPA by a State will be
evaluated. Essentially, a fee schedule can be judged to be
adequate if it meets one or both of two tests. A fee program is
adequate if it results in the collection of revenues sufficient
to recover all the reasonable direct and indirect costs of
supporting the development and administration of the permit
program, including those itemized in section 502(b)(3)(A). The
alternative test for approval focuses on whether the proposed fee
program would result in the aggregate collection of fees equal to
or greater than an amount of $25 per ton per year (annually
adjusted for CPI changes) for each regulated pollutant that the
subject sources emit.
The critical issue associated with implementing the first
test to be resolved by this rulemaking is defining the scope of
program costs that can be recovered through fee collection. The
specifically enumerated costs include:
(1) reviewing and acting on permit applications;
(2) implementing and enforcing permit terms and conditions (not
including court or enforcement-action costs);
(3) emissions and ambient monitoring; (4) modeling, analyses, and
demonstrations; and (5) preparing inventories and tracking
emissions [502(b)(3)(A)(i)-(vi)].
The EPA believes that the statutory provisions make clear
that permit fees must recoup direct "permitting" costs, including
costs of developing the permit program, reviewing permit
applications, holding hearings, issuing new and renewal permits,
and conducting inspections and other aspects of permit
enforcement (except for enforcement actions or court costs).
This includes activities performed by air pollution control
agencies which do not issue permits directly and surveillance
activities on certain smaller sources to ensure that they are not
subject to the Title V permit program. For some sources (e.g.,
SO2), these costs will include the costs related to ambient
monitoring near the source, as well as source-specific modeling
and attainment demonstrations to the extent that the costs are
incurred as part of regulating the Part 70 sources.
The EPA further believes that indirect permit program costs
include the costs arising from permitted sources for SIP
development (e.g., for VOC sources, the portion of the costs for
areawide monitoring, modeling, development of attainment
demonstrations, and development of SIP regulations to be codified
into permits that arise from regulation of Part 70 sources but
not the portion of the additional costs arising from regulation
of non-Part 70 sources). Indeed, each source, at the option of
the permitting authority, could be subjected to a permit process
that occurs concurrently with the SIP process and under which the
applicable SIP requirements and support analyses would be
accomplished with all costs directly borne by the source.
However, defining applicable requirements and gathering relevant
data can be viewed as more economical than requiring that Part 70
sources individually perform these functions to assure that
acceptable permits can be issued. In addition, indirect permit
program costs include the portion of overhead costs attributable
to the above-specified activities, as well as information
management activities to support and track permit application,
compliance certifications, and related data entry.
Permit fees must also cover the costs to support development
of programs under which the permitting authority assumes
responsibility for administering regulations under sections 111
or 112, to the extent those costs are related to emissions from
sources which may be subject to permitting. Permit fees required
by the Act may not be used to recoup costs attributable to mobile
or area sources as defined in section 110 (e.g., the costs of
inventorying mobile or area sources, and the additional costs
incurred as a result of including these sources in performing
areawide monitoring, modeling, and attainment demonstrations).
Conversely, fee revenues collected from non-Part 70 sources
cannot be used to offset the costs of a Part 70 permit program
and thereby reduce fees required to be collected from Part 70
sources.
Defining indirect permit program costs to include SIP
development costs also makes sense from the standpoint of parity
between sources of different types of pollutants. As noted
above, permit fees cover the costs associated with monitoring and
modeling for an SO2 source when SO2 NAAQS violations can be
directly linked to that source's emissions and such monitoring
and modeling that are part of the permit issuance or revision
process. Although ozone NAAQS violations generally result from
areawide emissions, not the emissions of a single source,
emissions from individual sources contribute to the need for
basinwide monitoring, modeling, and attainment demonstrations.
The EPA interprets the legislative history as consistent
with EPA's position that permit fees must recoup not only direct
permit costs, but also the SIP development costs arising from
permitted sources. The Senate bill clearly treated SIP
development costs as part of the permit program costs [S. Rep.
No. 228, 101st Cong., 1st Sess. 351 (1989)]. Senate conferees
emphasized that the Conference Agreement required fees to cover a
broad range of direct and indirect permit program costs,
including "the establishment of air emission standards" [136
Cong. Rec. 516, 941 (daily ed. Oct. 27, 1990) (Chafee-Baucus
statement of Senate Managers, S. 1630, the Clean Air Act
Amendments of 1990)]. The EPA interprets this as a reference to
establishing emission standards or limits for permitted sources,
which may be done through the SIP and subsequently codified into
permits. In addition, the Senate conferees emphasized the
primary role of the permit program in implementing the other
requirements of the Act, including attainment of the NAAQS [136
Cong. Rec. 516, 938 (daily ed. Oct. 27, 1990) (Statement of Sen.
Baucus)]. These statements indicate that the indirect costs of
the permit program include SIP development costs. Although the
Conference Agreement seemed to narrow the requirements of the
Senate bill, it appears that the purpose of this was to assure
that only permitted source-related costs, not mobile
source-related or area source-related costs, were covered by
permit fees [136 Cong. Rec. 516, 941 (daily ed. Oct. 27, 1990)
(Chafee-Baucus Statement of Managers)].
The statements by the House Committee and House Conference
members are less detailed on the scope of permit fees [H. Rep.
No. 490, 101st Cong., 2d Sess. 343, 345 (1990); 136 Cong. Rec. E
3,712 (daily ed. Nov. 2, 1990) (Statement of Rep. Dingell)].
However, EPA does not read them to be inconsistent with the
statements in the Senate. As a result, EPA interprets the
legislative history to accord with its view that permit fees must
recoup the portion of SIP development costs attributable to
stationary sources.
The second option for fee schedule approval comes directly
from section 502(b)(3)(B) which provides that "[t]he total amount
of fees collected by the permitting authority shall conform to
the following requirements:... The Administrator shall not
approve a program as meeting the requirements of this paragraph
unless the State demonstrates that" the program will result in a
collection, in the aggregate, from sources all subject to the
requirement to obtain a permit, of at least $25 per ton of
regulated pollutant, not including amounts of regulated pollutant
emitted by any source in excess of 4,000 tpy of that regulated
pollutant. The Administrator may determine that an amount less
than $25 is acceptable if the Administrator "determine[s] that
such lower amount adequately reflects the reasonable costs of the
permit program." This latter procedure is addressed in the first
option for fee schedule approval discussed above. A regulated
pollutant is defined under section 502(b)(3)(B)(ii) to include
VOC's, pollutants regulated under section 111 or 112, and each
NAAQS pollutant (except for carbon monoxide).
The EPA takes the position that these provisions intended to
establish a presumption that a fee program that collected from
all subject sources, in the aggregate, the $25 amount on an
annual basis would meet the requirements of covering the costs of
the permit program. Accordingly, if a State submits a fee
program that provides for collection of the $25 amount, EPA will
presume that the fee program meets the Act's requirements, and
will propose to approve it. However, if public comment, or other
information brought to EPA's attention, reasonably suggests that
the $25 amount is not adequate to recoup the required costs, then
EPA will scrutinize the State's costs to determine whether the
$25 amount is adequate.
The EPA believes this position is consistent with the Act
because of the very presence of the $25 minimum amount
provisions. Congress could have simply required permit fees to
recoup permit program costs without specifying a minimum amount.
The presence of the $25 minimum amount indicates that Congress
presumed that this amount would suffice to recoup the costs.
Indeed, several statements by Congressmen found in the
legislative history indicate that they viewed the permit fee
program as, in general, a $25/ton fee program. [136 Cong. Rec,
52107 (daily ed. March 5, 1990, (statement of Sen. Chafee); 136
Cong. Rec. E3674 (daily ed. Nov. 2, 1990) (statement of Rep.
Bilirakis)]. The EPA takes comment, however, on whether it
should interpret the Act to require a State to show that the fee
amount recoups State costs.
To make an acceptable demonstration, several clarifications
are needed. The statute is ambiguous as to exactly when a
substance becomes a "pollutant regulated under section 111 or
112," as that phrase is used in section 502(b)(3)(B)(ii). For
example, for hazardous pollutants, a pollutant listed in the
statute under section 112(b) might be considered to become a
"regulated pollutant" for purposes of Title V at any of the
following times: (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 term
"regulated pollutant" is susceptible to each of these readings,
and neither the statute nor the legislative history of the Act
Amendments provides guidance as to which of these three
possibilities was intended by Congress.
The EPA is proposing to adopt the second of the above
options, because it considers a substance to be truly regulated
when a standard is first promulgated that addresses that
pollutant. The EPA considers the other two options to be viable,
however, and therefore solicits comment on whether it should
instead adopt either one of them. Similarly, following the
second option described above, EPA proposes that a pollutant
becomes a "regulated pollutant" when it is first addressed by a
section 111 standard, but solicits comment on whether it should
be considered regulated for purposes of Title V only when the
standard becomes applicable to the permitted source.
This same question does not arise for VOC's and the NAAQS
pollutants (other than carbon monoxide), because the definition
of those terms in section 502(b)(3)(B)(ii) does not include the
qualifying term "regulated." Thus, EPA believes that fees must
be assessed for emissions of all of these pollutants at the
source. The EPA also believes that NOx, as well as NO2 (a NAAQS
pollutant), is to be considered a regulated pollutant. The NSPS
program currently contains standards relating to NOx emissions
[40 CFR 60.44].
The regulations also presume that the State will base a
demonstration that it is meeting the cost-per-ton test on the
actual emissions of all the Part 70 sources in the State. Using
actual emissions to set fees in this fashion creates an incentive
for sources to reduce actual emissions to reduce their fees. The
State, however, must demonstrate that this method supports the
program consistently and that the State can accurately determine
the fee base. If the permitting authority can address the
difficulties of determining its actual emissions fee base and
supporting its program, the regulations give the State the
flexibility to incorporate such incentives into its fee
structure. The proposed definition of actual emissions in 70.2
would presumptively use emissions actually emitted over the
preceding calendar year. Thus, after the initial startup of the
program, the permitting authority could rely on actual emissions
data developed and reported by the permittees (presumptively
required as a permit condition) to define the basis for assessing
fees for the next year.
Alternatively, EPA could use the definition of actual
emissions used in EPA's NSR regulations. This definition
defines actual emissions with reference to emissions during the
2-year period preceding the relevant permitting date, or any 2-
year period that falls within 5 years of that date, "upon a
satisfactory determination that it is more representative of
normal source operation." In the context of the PSD program, EPA
is now exploring the option of allowing sources subject to Title
IV to use any 2-year period falling within the 5-year period
preceding the relevant date, without a showing satisfactory to
the permitting authority that 2-year period is indeed more
representative of the source's normal source operation. The EPA
solicits comment on using this alternative, for at least affected
sources under Title IV, to determine actual emissions for
purposes of calculating fees under Title V.
The Act and regulations provide that the State can also
choose other approaches for determining the total emissions,
provided sufficient revenue will be raised to offset the
applicable costs of developing and implementing the program. For
example, the potential to emit of all Part 70 sources might be
chosen. Relying on the sources' potential to emit (considering
emissions limits or the requirement to use control equipment that
are federally enforceable) may allow the State to predict total
fee revenue with greater reliability. The State can determine
its sources' potential to emit by examining their permits, and
that potential will not vary as much a source's actual emissions
from year to year. Also, relying on potential emissions creates
an incentive for a source to reduce its potential emissions,
thereby aiding the State in demonstrating attainment and
maintenance of the NAAQS under its SIP.
The EPA also proposes that the calculation of revenue
associated with the presumptive $25/ton number may, but is not
required to, consider income from any regulated pollutant
emissions beyond the 4000 tpy level from any Part 70 source. In
addition, the Agency proposes that no double counting occur.
That is, to the extent that the emissions of a source are
regulated for more than one reason (e.g., toxics and VOC) in
determining the amount of fee revenue, the permitting authority
is not required to include any amount of regulated pollutant that
is otherwise regulated and included in the fees owed by the Part
70 source.
As mentioned, the $25 per ton figure is to be used relative
to the aggregate of all sources subject to the permitting
program. That is, the State may differentiate among source
categories and pollutants in assessing the fees, as long as the
permitting authority demonstrates that the total fees collected
are sufficient to support the permit program or meet the $25-per-
ton amount in the aggregate. This ability to differentiate also
includes affected sources subject to Title IV, notwithstanding
section 408(c)(4). This section provides that during the years
1995 through 1999, no fee can 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 Phase I
of the acid rain program. The Agency interprets this provision
to mean that EPA may not collect fees from Phase I-affected
sources prior to January 1, 2000. States, however, are not
precluded by that provision from fee collection at these
facilities pursuant to other requirements of the Act.
(3) Section 70.9(c) - Fee Adjustment
In future years after the establishment of a permit fee
program, fee schedules may need to be modified due to either
inflation or to a substantial increase in program costs. For
example, a future NESHAP may be promulgated covering source
categories with large numbers of individually small sources in
terms of how much of the regulated pollutant is emitted.
Monitoring the compliance of these sources may substantially
increase the resource demand on the State agency. The Amendments
specifically require for recalculation of permit fees each year
after enactment, by a percentage that is tied to the CPI.
However, the EPA is concerned that the mechanism for modifying
permit fees may not be in place. Of main concern is whether the
State agency has authority to modify permit fees or, alternately,
must the State legislature approve any revision. Accordingly,
EPA urges States to provide enabling legislation that gives the
agencies sufficient legal authority and flexibility to manage
their fee structures. The EPA solicits comments on problems
associated with providing State agencies with the authority up
front to revise permit fees and on what factors should constrain
future increases beyond those needed to account for CPI changes.
Specifically, EPA would like information on the way permit fee
revisions are currently handled and whether revisions to the
permit fees required under this title should be handled in a
similar fashion.
(4) Section 70.9(d) - Fee Demonstration
This section requires the State to provide a demonstration
that program costs will be covered. A specific demonstration of
the adequacy of permit fees in covering program costs would be
required in two cases. The first case is where the fee amounts
to less than $25 per ton per year. As indicated above, the
lesser fee would be approved by EPA only if it can be shown that
the revenues collected with this fee adequately support the
program. The EPA believes that States seeking to collect less
than the $25 amount must persuasively demonstrate that a lesser
amount will adequately cover the required costs. To make this
demonstration, the States must submit a detailed accounting of
the required costs and anticipated fee collections. The EPA
believes that the Act's provisions establish a strong presumption
in favor of fees at least equivalent to $25/ton, and that States
seeking to collect less bear the burden of demonstrating that
less is nevertheless adequate.
Section 502(b)(4) requires that State programs must also
provide for adequate personnel and funding to administer the
permit program. In the past, inadequate resources have often
prevented State agencies from completely fulfilling their air
quality management responsibilities under the Act. This
requirement is designed to overcome that aspect of the resource
problem.
(5) Legislative Authority
Appropriate legislative authority must exist for the
permitting authority to have the ability to assess and collect
fees. Many State agencies already have such authority and
require at least a nominal payment for the processing of air
permit applications. However, some States do not collect permit
fees and will need to obtain from their legislatures the
authority for the permit fee program. Further, many States with
permit fee programs may need authority to substantially increase
their fee structures.
After the appropriate authority has been established, a
requirement for program adequacy is the demonstration that the
fees collected will be retained to support the permitting
program. This should include, where applicable, provisions for
providing funding to other air pollution control agencies which
perform air permit program activities but do not issue permits
directly. In reviewing permit program plans, EPA will be looking
for a system which tracks the payment and disposition of fees.
It is vital that the permit fees not be diverted for some other
use. However, EPA would like to give the States as much
flexibility as possible in handling permit fee retention. For
example, in some States it may not be possible for the air agency
to administer the collection and distribution of the permit fees.
In this case, EPA would consider it acceptable for the fees to be
paid to a State general fund, rather than directly in the air
agency fund, provided all such funds are assured to be returned
to the air agency on an annual (or similar period) basis. In any
event, EPA believes that periodically (e.g., every 2 to 3 years)
a document summarizing the collection and subsequent use of
permit fees should be provided to the Agency, as well as to the
public.
(6) Transition Problems
State agencies will likely experience some transition
problems as they convert to the air quality management program
called for in the Act. With respect to the permit fee
requirement, EPA would like to accommodate existing programs to
the extent possible. Of particular concern are the
discontinuities potentially caused in States where the State
agency collects permit fees but a local agency carries out most
of the permitting responsibilities. The EPA believes that an
understanding on fee assessment and collection needs to be
reached at the State level before program submission, and that
local agencies should be compensated in a manner commensurate
with their level of permit activities. The EPA proposes that
there does not need to be one uniform State fee structure,
particularly where one would unnecessarily disrupt existing
programs. Further, EPA feels that consultation with State and
local agencies prior to plan submission will help to resolve
potential problems. Given these concerns, comments are solicited
on how EPA input should be coordinated.
Other types of transition issues relate to the early
collection of fees. Section 502(b)(3)(A) requires that "sources
subject to the requirement to obtain a permit" 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 (emphasis added). The EPA proposes
to interpret these provisions to authorize the imposition of fees
on sources that State reasonably expects to be permit applicants,
and to impose those fees prior to the date the source is required
to submit an application. If these permit fees were restricted
to the date the program becomes effective or the sources are
required to submit an application, potentially insurmountable
transition problems could exist for States trying to build up
their capabilities to allow for effective implementation of the
program. Given the clear mandate in Title V for the timely
submittal of State permit programs, EPA believes that States
should be allowed reasonable opportunities to collect fees which
fund the development of their required Part 70 program. One
approach might be to collect such fees during an early
identification or registration of subject sources. Other
reasonable strategies might involve fee payment by sources
subject to a State program which has received interim EPA
approval. The EPA solicits comment as to what approaches are
appropriate for agencies to collect fees prior to program
approval.
(7) Small Source Fees
The Act requires the establishment of a technical and
environmental compliance program for small businesses. Part of
the goal of this program is to alleviate the financial burden
placed on small businesses by the new requirements embodied in
the Act. The EPA is promoting, and solicits public comment on,
establishing a relaxation or waiver in permit fees for small
businesses where necessary. This $25 per ton is essentially an
accounting technique, not a presumptive fee requirement. The EPA
invites comments on other adjustments to the fee schedule for
small sources that may be necessary.
J. Section 70.10 - Federal Oversight and Sanctions
The EPA periodically will audit State permit programs to
ensure that the programs are being administered in accordance
with EPA's regulations and the conditions under which they were
approved.
As in the case where the State fails to develop and submit
an approvable program, where EPA determines that a permitting
authority "is not administering and enforcing" a permit program
as required, the Agency may (and in some cases, must) apply
sanctions against the State [502(i)]. Such a determination
ordinarily will follow an EPA audit of the program. A consistent
pattern or practice of failure by the State to adequately carry
out its program, however, may give rise to an EPA determination
that the State is not adequately administering and enforcing it,
regardless of whether a formal audit has been conducted recently.
A dispute over a single permit rarely will give rise to a general
finding of failure to carry out the program on the part of the
State. Moreover, the statute makes it clear that only EPA may
make the determination that a permitting authority is failing to
adequately administer or enforce the program.
When EPA makes such a determination, it must notify the
permitting authority. For the first 18 months following this
notification, EPA may apply any of the sanctions provided in
section 179(b), but is not required to do so [502(i)(1)]. After
18 months, if the permitting authority has not corrected its
program, EPA "shall apply the sanctions under section 179(b) 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)" [502(i)(2)].
The two sanctions provided for in section 179(b) are (1) a
prohibition on the award of Federal highway funds or the approval
of any Federal highway project by the Secretary of
Transportation, other than for safety or mass transit, and (2) a
requirement that sources subject to NSR requirements of section
173 obtain emission offset reductions in a ratio of at least two-
to-one. Section 502(i)(3) further provides that EPA shall not
apply the section 179(b)(2) sanction (regarding the requirement
to obtain two-to-one offsets) in any area for failure to
administer and enforce the permit program unless the failure
"relates to an air pollutant for which such area has been
designated a nonattainment area." The EPA believes that failures
to carry out a permitting program rarely will be
pollutant-specific failures. If the failure does not relate to
only one pollutant, EPA has the authority to apply the section
179(b)(2) offset sanction in any area that is designated
nonattainment under section 107 for at least one pollutant.
As discussed above, the Act's legislative history on the
operating permits title shows that EPA should take over
permitting of sources only as a last resort. The States are far
better equipped to issue operating permits. However, section
502(i)(4) requires EPA to step in and take over permitting if a
State has not corrected the cited deficiencies in its program
within 2 years of the date that EPA determined the permitting
authority was not adequately administering or enforcing its
program. Thus, EPA shall promulgate, administer, and enforce a
Federal permitting program for a State 6 months after the date
that EPA is required to apply sanctions against the State. Part
71 will contain all necessary provisions for EPA to administer
and enforce a Federal permitting program for a State. The EPA
shall publish notice in the Federal Register that it intends to
administer and enforce such programs for a State within 6 months
after the date that EPA is required to apply sanctions against
the State. Whenever EPA determines that the State has corrected
the deficiencies in its program, the Agency will cease
administering the Federal permits program and return permitting
authority to the State.
K. Section 70.11 - Requirements for Enforcement Authority
This section was added to promote greater consistency with
the NPDES program and to ensure that the basic framework for
effective enforcement of Title V would be in place. This section
contains specific requirements for enforcement authority
consistent with those contained in 40 CFR 123.27, with
appropriate adjustments to conform to the Act.
The EPA encourages State and local permitting authorities
also to have administrative enforcement authority similar to
section 113 of the Act as amended, although it is not required by
70.11. Having administrative enforcement authority in addition
to judicial enforcement authority has many advantages. First,
administrative cases generally have lower forum for minor or
straightforward violations. Reliance on the judiciary for all
enforcement cases also 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.
V. Additional Topics of Discussion
A. Implementation Agreements Between State Agencies and EPA
(1) General
The operating permits program set forth in Title V is
designed to streamline the regulation of major sources by
incorporating all of the various Act requirements to which a
source is subject into a single document. The effective
implementation of this new program will undoubtedly require a
high level of cooperation and coordination between State and/or
local air pollution control agencies and EPA. It is important,
therefore, that directors of State and local air control agencies
establish an implementation agreement with the appropriate EPA
Regional Office. Such an agreement would define the manner in
which the permits program is to be administered by the permitting
authority and reviewed by the EPA Regional Office.
An implementation agreement should be administrative in
nature. It should establish the policies, responsibilities, and
procedures to be followed by the two parties in administering
Title V. It should define the relative program responsibilities
and priorities regarding such topics as reporting and data
requirements, administrative deadlines, enforcement of permits by
the States, and procedures for permit and program review. It
should not be used as a substitute for rulemaking (i.e., to make
additions or modifications to the permit regulation) or the SIP.
Such an agreement should be developed during the period that
the States are developing their Title V programs, and it should
be submitted along with the State program submittal. Submittal
of the agreement at this time is critical because it will require
the permitting authority to analyze the administrative aspects of
the program in an organized manner and show that such details
have been considered before development of program requirements
and agreed to before subsequent approval by EPA. Both the
permitting authority and EPA will benefit from this in the long
run. It is important to note that implementation agreements with
State and/or local control agencies will be made publicly
available in the EPA docket for this regulatory action but will
not be subject to the Federal rulemaking process.
The concept for the implementation agreement stems from the
use of a memorandum of agreement (MOA) between State agencies and
EPA Regional Offices in the NPDES program under the CWA. The
NPDES program provided the basic blueprint for the Title V
legislation and has successfully used the MOA concept to enhance
program implementation. Experience shows that the MOA has led to
better State/Federal communications.
The implementation agreement identified in this section can
come in any format and does not have to take the specific form of
an MOA. It need only cover the types of issues described in the
next section. The EPA solicits comments on the need for a model
MOA and its anticipated usefulness.
The benefits associated with an implementation agreement are
numerous. First, as previously noted, it will provide for better
interagency communications. Second, State and local permitting
authorities should gain greater certainty about EPA's oversight
activities under the program. Third, an implementation agreement
can complement section 105 grant agreements and conditions and
can help define how EPA Regional Offices will relate to States.
Fourth, the implementation agreement can be used to allow for
minor program changes (e.g. changes on a State permit application
form) in the future without rulemaking.
(2) Recommended Topics Within Implementation Agreement
The Administrator proposes for comment that a typical
implementation agreement may include provisions relating to the
following topics:
(a) Meetings between the Permitting Authority and EPA.
Both parties agree that either can call meetings to review
operating procedures, resolve problems, or otherwise enhance
implementation of the permit program.
(b) Legal Authority. The permitting authority agrees to
develop and maintain legal authority and resources for effective
program implementation.
(c) Accounting Report. The permitting authority agrees to
provide an accounting report to EPA covering the timeframe
specified by the Agency which demonstrates how revenues from
permit fees were spent by the agency and how they are used in
meeting the designated air agency's maintenance of effort program
requirements contained in section 105.
(d) Required Submission of Documents. Both parties agree
to identify the kinds of documents and the frequency with which
they are to be submitted by one party to the other. Examples
include copies of permits the State has decided to revise,
revoke, or terminate. The EPA agrees to keep the State agency
informed about new regulations, reports, policies, and litigation
settlements. State agrees to notify contiguous States and other
States within 50 miles of all permit applications.
(e) Public File. The permitting authority agrees to
maintain an adequate public file (excluding information entitled
to protection from disclosure under section 114(c) of the Act)
for each permittee. The types of reports to be included in each
file are to be specified in the agreement. Public information
will be made available to any party upon request for the
applicable duplicating fee.
(f) EPA Funding. The EPA may provide additional section
105 funding support for the State program, particularly during
the program transition period, where such funding is necessary
and available.
(g) Technical Support and Assistance. The EPA agrees to
provide technical support and assistance for interpretation of
national regulations, automated transmission of data to EPA, and
general technical assistance in processing permits.
(h) Information Management. State permit information
systems should be compatible with the national operating system
with regard to a set of minimum standard data elements, as well
as standardized program procedures, including timely submittal of
required data. These requirements are to be defined in
subsequent guidance.
(i) Priorities for Permit Processing. Both parties agree
to identify and implement priorities (e.g. sources subject to new
source review) for permit processing.
(j) Enforcement. The State agrees to maintain a vigorous
enforcement program, including the following:
(i) Quarterly reports of compliance information to EPA.
(ii) Annual reports of State enforcement activity.
(iii) An automated compliance monitoring tracking system.
(iv) Timely review of compliance records, monitoring
reports, inspection reports, and compliance certifications.
(v) Compatibility with and/or use of AIRS, including
information transfer procedures conforming with national
requirements to be developed.
(vi) Certification of reports by a responsible official.
(vii) Appropriate enforcement actions taken in a timely
manner.
(viii) Timely field inspections in accordance with approved
procedures.
(ix) Procedures for receiving and properly considering
information submitted by the public about violations.
(k) Program Review. The EPA will conduct the following
activities to ensure that program objectives are met:
(i) Timely review all information submitted by the State
agency.
(ii) Meet with State and/or local officials periodically to
discuss program implementation.
(iii) Examine files and documents at the State agency for
selected facilities to determine that permits are processed,
issued, revised, renewed, and enforced in a manner consistent
with Federal requirements.
(iv) Review and certify periodically the legal authority
upon which the State's program is based and notify EPA of
findings.
(v) Hold public hearings on draft proposed permits, as
necessary.
(vi) Review the State and/or local agency's public
participation policies and procedures as needed.
(vii) Respond promptly to proposed program changes.
(l) Program Changes. The permitting authority agrees to
take the following actions regarding changes in its permitting
program:
(i) Seek and adopt legislation (or other actions) to
maintain compliance with the permitting program.
(ii) Notify EPA of any proposed substantial change in the
program and transmit the text of any such change.
(iii) Notify the EPA within 10 days of any change to the
program and transmit the text of such revisions.
B. Relationship of Permit Programs to SIP's
(1) General
Under the Act, the SIP remains the primary means of assuring
attainment and maintenance of the NAAQS. Requirements in the
underlying SIP will form the basis for the permit requirements.
As previously mentioned, section 504(a) requires each permit
issued under Title V to include, among other things, "such . . .
conditions as are necessary to assure compliance with applicable
requirements of this Act, including the requirements of the
applicable implementation plan." Section 505 requires that EPA
object to any permit that "contains provisions that are
determined by the Administrator as not in compliance with the
applicable requirements of this Act, including the requirements
of an applicable implementation plan."
A previous section on applicable requirements [IV.F.]
discusses various ways of ensuring that the permit would
implement and not relax the applicable SIP requirements. Where
SIP requirements are clear, the Part 70 permit must adopt these
limitations and reestablish them as permit conditions that
implement the SIP. Where the SIP requirements are ambiguous or
absent, the permit could provide a way of resolving questions as
to how the SIP applies and is enforced. Where the SIP is being
changed, (e.g., in SIP-call areas) the permit must not unduly
insulate the source from the future requirements.
The provisions in section 504(a) indirectly limit the
flexibility offered by section 502(b)(10), which requires that
State programs allow certain changes within a permitted source
without a permit revision so long as, among other things, 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) . . . ." Since the permit must reflect the SIP,
if the SIP does not authorize changes from unit-specific
emissions limits or caps contained in the SIP without a SIP
revision, the "operational flexibility" provision cannot be read
to authorize such changes absent a SIP revision. (Congress's
deletion of the Senate bill provisions authorizing permits to
modify SIP's, in conjunction with its addition of the section
504(a) language requiring permits to reflect the SIP, suggest
strongly that Congress rejected the view that permits could
modify or otherwise override the applicable SIP.)
This limitation on the ability of permits to modify SIP's
creates a dilemma for EPA. On one hand, if a SIP sets detailed
unit-specific emissions limits that constrain the ability of the
source to choose alternatives without submitting them as SIP
revisions, then the permit for a source subject to those limits
would have to reflect those limits, and each time the source
wanted to make a change to its plant that would require a change
to those limits, it would first need to obtain a SIP revision and
a permit revision. This would essentially add a permit-revision
step to an otherwise cumbersome double-step process of obtaining
SIP revisions (revision by the State followed by EPA approval of
the revision). The resulting regulatory gridlock would be
inconsistent with one of the apparent purposes of the permit
program; to accomplish air quality management with less reliance
on the SIP revision process.
On the other hand, Title I of the Act prescribes various
minimum requirements that SIP's must meet to ensure attainment
and maintenance of the NAAQS. Any effort to introduce into the
SIP system enough flexibility to avoid the regulatory gridlock
described above will need to respect those Title I requirements.
Thus, the challenge EPA and the States face in this regard is to
explore creative ways of implementing Title I so as to meet its
requirements for SIP's while minimizing the need for processing
SIP revisions to accommodate each and every permit and permit
revision.
The starting point for meeting this challenge is section
110(a)(2)(A) which requires that each SIP "include enforceable
emission limitations, and other control measures, means, or
techniques (including economic incentives such as fees,
marketable permits, and auctions of emissions rights), as well
as, schedules and timetables for compliance, as may be necessary
or appropriate to meet the applicable requirements of the Act."
This provision makes the required contents of SIP's hinge on
what is "necessary or appropriate" to meet the applicable
requirements. Thus, any effort to explore the option of
introducing flexibility into SIP's must focus on the other
requirements for SIP's in Title I and elsewhere in the Act. For
example, SIP's for ozone nonattainment areas must include certain
requirements concerning reasonably available control technology
(RACT) [182(a)(2)(A) and (b)]. For all but marginal ozone
nonattainment areas, the SIP must be revised to provide for
certain prescribed amounts of emissions reduction [182(b)(1) and
(c)(2)(B)], as well as emissions reductions necessary to provide
for timely attainment of the ozone NAAQS [182(b)(1) and
(c)(2)(A)]. The SIP's for PM10 nonattainment areas also must
include both technology-based and attainment-based provisions
[189(a) and (b)]. Under section 110(k) and (l), EPA has the
responsibility for ensuring that each plan meets these
requirements.
Resolution of this issue requires a thorough study of the
SIP requirements in the Act. The EPA has begun this study and
intends to publish later this year a discussion of its findings
in the preamble for Title I SIP requirements. That notice will
discuss how EPA will provide more flexibility in the SIP
requirements.
In advance of the Title I notice, EPA wants to solicit
comments on several ways to resolve this issue. The EPA's
approach can be separated into three options. First, EPA will
explore efficient ways to implement requirements of the current
SIP's through Title V permits and seek means to keep unnecessary
permit details out of SIP's. This will avoid the need for a SIP
change for every change to a Title V permit. For example, a
permit must sometimes contain details, such as descriptions of
source-specific monitoring or reporting elements, on which the
SIP is ambiguous. In many cases, requiring a SIP revision as
well as a permit change would be unnecessary. In some instances,
however, a SIP revision might be necessary to reflect more
stringent permit limits imposed to meet, for example, a Title I
milestone or progress requirement. As mentioned, EPA is taking
comment on how the SIP might reflect the effect of tighter permit
limits in a way that does not require an excessive number of SIP
revisions.
Second, EPA will add more flexibility by developing ways for
sources to demonstrate compliance with RACT limits. One way is
through the use of protocols defining equivalent means of
compliance. Two of these are in use, one for can-coaters (see 45
FR 80824, December 8, 1980) and one for automobile and light-
truck topcoaters (see report no. EPA-450/3-88-018, December
1988). The EPA intends to develop equivalency protocols for
other sources subject to RACT. These protocols, where possible,
will provide sources with additional options for meeting RACT
limits.
Third, EPA might allow the expanded use of emissions trading
and marketable permits to achieve SIP objectives. EPA believes
marketable permits could implement a SIP that contained both a
source-specific limit and a general rule governing the trading of
emissions. This approach would be similar to the allowance
trading system EPA expects to adopt under the acid rain
provisions and could afford trading opportunities without
requiring SIP revisions or permit revisions.
The comparison between the acid rain trading system and a
system of trading or marketable permits in ozone nonattainment
areas deserves further discussion due to major differences
between the two. The acid rain system allows nationwide trading;
a nonattainment system would be limited to a metropolitan area,
and to smaller areas if the SIP attainment strategy relied on a
grid-based model. Compliance in the acid rain system is through
CEMS. The absence of in-stack monitors for VOC's may require
that compliance be determined through time-consuming
recordkeeping calculations. Acid rain sources are of one type:
large utility boilers, which already are highly regulated.
Sources of VOC span many source categories and can be very small,
down to 10 tons per year, several of which are not familiar with
complicated regulatory mechanisms. Trades in the acid rain
system are incomplete until recorded by EPA. A system requiring
a similar EPA oversight of each trade may be unworkable for
VOC's.
The EPA takes comment on how it could structure a trading
system for VOC's and NOx in ozone nonattainment areas. The
Agency also takes comment on how to create a system that could
effectively track trading of allowances among numerous and
disparate VOC and NOx sources in a large ozone nonattainment area
within the need for permit or SIP revision. In particular, the
EPA solicits comment on how it should build enforceable
conditions into Title V permits that maintain compliance with the
permitted emission limits regardless of how a source's control
measures or its allowance holdings may vary.
The timing of these options is important. Many sources will
soon be faced with deadlines requiring compliance with line-by-
line RACT limits, and if EPA is to implement one or all of these
options, it must consider how these RACT limits could be made to
fit with the three options. For instance, the scope of option
three could be restricted if RACT limits (with or without
equivalence protocols) were applied so as to require the same
level of emissions reductions at each affected emissions source.
Although EPA already has construed the statute to allow some
degree of trading among emissions sources (see 51 FR 43814,
December 4, 1986), the third option described above might expand
that opportunity further. Thus, delaying that option for several
years might restrict sources to the more limited options for
purposes of any initial compliance dates. On the other hand, it
may be difficult to implement the third option before approved
State permit programs are in place.
The EPA solicits comment on all aspects of these options,
particularly on whether EPA should adopt some, all, or none of
the options outlined above. The EPA also solicits comment on how
quickly EPA should move to accept any of the options and on what
safeguards are needed to ensure that SIP objectives and Title I
requirements are met. The EPA also solicits comments on other
possible approaches.
The EPA also solicits comment on any practical questions
related to putting an allowance trading system in place for VOC's
and NOx. Examples of such questions are: how to reconcile the
need for a basinwide trading system with the requirement in
certain areas for photochemical dispersion modeling, and whether
it is practical for SIP-regulated sources to operate under
emissions caps or allowances.
The preceding discussion on the three options applies only
to the ozone precursors VOC and NOx. The EPA does not intend to
apply such an approach to permitted stationary sources of SO2,
CO, PM10, or lead. This is because any change that affects
quantity or characteristics of emissions of these pollutants at a
particular emissions unit can produce a corresponding change in
air quality more significant than is the case for VOC or NOx.
Consequently, the permit could not be approved until the SIP has
tested such changes for attainment of air quality standards. The
preceding discussion also does not alter the Emissions Trading
Policy Statement. That policy allows trading for SO2, CO, PM10,
and lead if supported by an air quality modeling demonstration.
For illustration, the remainder of this section discusses
one example of when States might issue permits that depart from
the SIP without securing advance EPA approval of those permits as
case-by-case SIP revisions, namely, the case of permits that
establish new, more restrictive requirements on a subject source.
For example, some States may include enforceable emission limits
in their permit program derived from State an air quality
initiative within the SIP to gain needed reductions from the
permit program, or to implement an emissions trade proposed by
the source. The State will want to rely these new tighter limits
established in the permit program in its demonstration of
attainment and maintenance of the NAAQS. Clearly, the tighter
restrictions within these permits are federally-enforceable and
can be relied upon by the SIP demonstration once incorporated
into the SIP. Since SIP demonstrations must extend beyond the 5
year maximum fixed life of permits, the SIP itself may ultimately
need to contain the new permit limits. That is, the SIP
demonstration cannot depend for the longer term on more stringent
permit restrictions which could be relaxed to the currently
applicable SIP requirement and/or expire at the end of the fixed
term identified in the permit (not to exceed 5 years). As
explained above, the EPA has proposed that the latter not be
allowed to occur. Under that proposal, the State's law would
have to provide that the terms of the permit would remain
enforceable, even after the fixed term of the permit expires,
provided that the source has filed a timely and complete
application for permit renewal.
The question then becomes how to incorporate the effect of
these permits into the SIP's attainment demonstration without
creating even a greater potential for regulatory gridlock similar
to that mentioned previously. The EPA believes that the gridlock
problem can in significant part be minimized while still
addressed by relying upon the SIP revision process. First, the
Agency believes that the process for inserting new limits
established within permits into the SIP need only occur
periodically and not for each permit upon its issuance. The
envisioned process would be a relatively straightforward
incorporation of the new permit restrictions into the SIP as new
applicable requirements [III.H.] that all future versions of the
permit must meet. In addition, to the extent possible, EPA would
utilize the SIP processing reforms outlined in 54 FR 2214 on
January 19, 1989. This process would add only the time needed to
accomplish one SIP revision addressing the permits of several
sources and thus effectively preserve most of the added air
quality management efficiency accomplished through the permit
process. In addition, the State, presumably at the same time,
would update its SIP demonstration under Title I based on the
reductions and/or clarifications it has implemented using Title V
permits. The EPA solicits comment on this approach for using
permits to complement the existing SIP program.
Alternatively, EPA may be able to approve into the relevant
SIP's provisions that, in advance of permit issuance, would
credit the States for changes that, without further EPA SIP-
revision approval, tighten the otherwise applicable source-
specific limits in the SIP. If EPA approved such rules into a
SIP, permit tightenings would accord with the SIP, and hence
would satisfy section 504(a) without the need for EPA to approve
each such tightening separately as a SIP revision. (As
previously discussed, without such rules, EPA might eventually
need to approve each tightening (e.g. an emissions offset) as a
SIP revision to the extent that the State relies upon it in
demonstrating attainment and maintenance with the applicable
NAAQS.) Beyond that, the Agency takes comment on the possibility
of approving into the SIP a provision which would ensure an
aggregate effect from tightenings accomplished within the permit
program, provided that no aspect of the underlying SIP would be
relaxed. The provision would necessarily contain tracking
requirements to assess the progress achieved, periodic and
defined updates of the demonstration to verify results, and other
safeguards as needed to guide EPA when to use its veto authority
on an individual permit basis. The EPA solicits comment on use
of such a generic permits provision.
The EPA solicits comment on these and any other options for
streamlining SIP's so as to minimize the need for SIP revisions
to accommodate permits and permit revisions.
(2) Other SIP/Permit Concerns
(a) SIP Calls. A State subject to a SIP call will have to
coordinate carefully its operating permit program with its
obligation to revise the SIP. Section 504(f) states that
compliance with a permit issued in accordance with Title V,
unless limited by EPA rulemaking, may at the discretion of the
reviewing authority also represent compliance with other
applicable requirements, subject to certain limitations. As
discussed previously, at the discretion of the permitting
authority, EPA's proposed interpretation would generally protect
a source from new requirements during the term of the permit,
unless the permit were be reopened. Permitting authorities
issuing operating permits in these areas therefore may choose to
shield sources from changes in the SIP during the permit term.
This action should be coordinated with the schedule for
accomplishing areawide air quality requirements developed by the
State or promulgated by EPA into the deficient SIP.
(b) Consolidated Actions. A State may choose to
consolidate actions on permits and SIP's in some situations. In
the case described previously, where a new SIP provision is
promulgated during the first 2 years of a 5-year permit, the
State may choose to process the reopening of the applicable
permits along with the SIP revision to meet its obligation under
section 502(b)(9). In the less likely case where the State is
proposing to relax the SIP, the State may choose to reopen the
applicable permits along with the SIP relaxation, specifying that
the new relaxed permit limit is effective upon EPA's approval of
the relaxation as a SIP revision. In both cases, States may be
able to consolidate public participation procedures to save time
and administrative resources.
C. Implications For Acid Rain Program
Title IV mandates a two-phased acid rain control program
which will be implemented through operating permits. The acid
rain title (Title IV) sets forth permitting requirements
supplemental to the requirements of Title V addressed by today's
proposal. Where discrepancies exist between requirements under
Title V and requirements under Title IV, the acid rain
requirements supersede those of Title V [506(b)]. Acid rain-
specific permit content requirements must be included in
operating permits under both phases. The permitting process will
be different for Phase I and Phase II. Section 407 provides that
Phase I of the acid rain program (1995 through the end of 1999)
be implemented entirely through operating permits issued by the
Administrator. Phase II (beginning in 2000) will be implemented
by operating permits issued by States with federally-approved
permit programs, or by EPA in the event a State defaults. Phase
II permitting will be, thus, in accordance with the process
established by the rules proposed today, as supplemented by acid
rain-specific content regulations.
Today's proposal does not address specific supplemental
permitting requirements for acid rain, provided for in Title IV.
Those requirements will be addressed in a separate rulemaking,
with final rule promulgation required 18 months after enactment.
The acid rain permit regulations will include a description of
the relationship of the acid rain program to other programs
incorporated in the permits, necessary definitions, applicability
requirements, and necessary permit elements not included in the
rule proposed today. These will include: (1) acid rain-specific
requirements for permits and compliance planning, including
requirements for affected sources relying on one or more
alternative compliance methods authorized by the statute (e.g.,
extensions, substitutions, banking, pooling, purchasing of
allowances at sale or auction, energy conservation or renewable
energy, repowering, etc.), (2) compliance certification and
reporting requirements, (3) requirements for affected source-
designated representatives, and (4) excess emission offset
planning and fee requirements.
Rules for Federal acid rain permitting during Phase I, and
in the event of State defaults during Phase II, will be published
at 40 CFR Part 71. In addition, acid rain permit content
requirements, which must be included in permits issued by States
with approved programs, will be proposed at that time, and will
be added to (or incorporated by reference in) the Part 70 rules
proposed here. Public comment is invited at this time regarding
the impact of this general permit program rulemaking on the acid
rain permit program. Public comment in response to the acid rain
rulemaking proposal will, however, only be accepted with regard
to the provisions proposed at that time. Comments will not be
considered at that time reopening matters addressed by this
rulemaking.
D. Judicial Review
The 1990 Act Amendments and the regulations proposed today
provide an opportunity for judicial review of State and certain
Federal final actions on a proposed permit. Generally, a final
State action prior to submitting a proposed permit to EPA is
reviewable in State court. An EPA issuance or denial of a
permit, or an EPA denial of a petition to object to a permit,
would be reviewable in the appropriate Federal court of appeals
for the circuit where the State is located.
(1) Review of State Action
Section 502(b)(6) requires that a State operating permit
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 is repeated in
70.4. A State must make a showing, through the submission of
copies of State statutes or regulations, that such an opportunity
for judicial review of the final State action on the permit is
available in State court. This opportunity will not be available
until after the permit has been issued (i.e., after the end of
the EPA review period) or after it has been denied by the State
(in which case there will not be any EPA review).
State law will govern the effect a petition for judicial
review of the State's final action on the proposed permit has on
the action. For example, nothing in the Act or the regulations
proposed today would prevent a State court from staying the
effect of the State action in approving or disapproving the
permit. States may also require that petitioners go through
State Administrative appeals procedures before they may petition
for judicial review in State court.
One of the primary goals behind Title V was 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 permits
should not be subject to challenge in enforcement proceedings.
Section 307 clearly establishes this rule for circumstances in
which EPA is the implementing authority. With this goal in mind,
EPA solicits comment on whether permitting authorities should, as
a minimum program element, be required to provide, through rule,
legislation, or permit term, a comparable exclusive, time-related
route for judicial review of permits. After this judicial review
opportunity passes, no one, including the source, could challenge
a permit. Permitting authorities would be granted flexibility
regarding the length and structure of this review period.
Sources would, in any case, specifically be precluded from
challenging the requirements and conditions of their permits in
State or Federal civil and criminal enforcement actions.
Section 502(b)(6) requires all approvable programs to
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."
Thus, EPA would, through this rule, only add that this mandated
State judicial review process would be the exclusive means for
challenging a permit.
This would have advantages for the permittee, the permitting
authority, and EPA. The advantages for permittees would be the
added certainty and stability of their permit gained by having
their permit no longer subject to challenge. Enforcement at the
State and Federal level would benefit significantly. Currently,
many enforcement actions are seriously hindered by disputes with
sources over which Act requirements apply. If the permit could
not be challenged in enforcement actions, these disputes would no
longer arise.
The EPA is particularly interested in comments from
potential permitting authorities on whether it is advisable to
require States to limit the time for challenging terms of
operating permits and what obstacles they would encounter in
implementing such a requirement.
EPA also takes comment on the need for specific regulatory
requirements in Part 70 regarding judicial review of acid rain
requirements contained in Title V permits. An important
principle of the acid rain program, embodied in Title IV and in
section 506(b), is national consistency. Judicial review in
State courts could have a significant impact on the acid rain
program because it would result in inconsistent requirements
being imposed on acid rain sources depending on the State in
which they are located.
To maintain this national consistency, the EPA proposes to
require that challenges to acid rain requirements be reviewed in
Federal courts only, using Federal administrative and judicial
appeals procedures. The basis for this approach is found in
section 506(b) of the Act as well as 70.1(e) of these
regulations, which states that the requirements of Part 70 shall
apply to affected sources under the acid rain program, "except as
provided herein or modified in Parts 72 through 78 of this
chapter." The EPA solicits comment on whether it should adopt
this approach.
(2) Review of EPA Action
Also subject to judicial review are EPA's final actions in
(1) issuing or denying a permit where, following an EPA objection
to a proposed permit, the State fails to submit a revised,
acceptable permit, and (2) denying a petition to object to a
proposed permit. Where EPA objects to issuance of a proposed
permit under section 505(b) because provisions are not in
compliance with applicable requirements of the Act, and then must
actually issue or deny the permit itself, that latter action is
subject to a judicial review under section 307(b) in the
appropriate Federal court of appeals. The appropriate court will
be the circuit in which the State is located. Section 505(c)
expressly States that "no objection [by EPA] shall be subject to
judicial review until the Administrator takes final action to
issue or deny a permit under this subsection" following the
permitting authority's failure to submit a permit revised to meet
the objection. Thus, a petition for review of EPA's action may
not be filed until that time; if one were filed before then, the
court would lack subject matter jurisdiction.
The above-quoted language also makes clear that, where EPA
objects to issuance of a permit, and the permitting authority
revises the permit to address EPA's comments, EPA's objection is
not subject to judicial review. Otherwise, Congress would have
specified other circumstances when an EPA objection would be
subject to judicial review. Where the State revises the permit,
therefore, the finally-issued permit will be subject to judicial
review only in State court. Where a petition for review of EPA's
issuance or denial of a permit is filed in the Federal court of
appeals, the judicial record shall constitute all materials
regarding the permit submitted to EPA and any other materials
that the Agency relied upon in objecting to the permit forwarded
by the State, as well as any materials relied upon in issuing or
denying the permit.
Under section 505(b)(2), a person may under certain
circumstances petition the Administrator to object to issuance of
a permit if the Agency has failed to object to its issuance
during the 45 day review period specified in section 505(b)(1).
If the Administrator approves the petition, that action is not a
final action subject to judicial review. Rather, as described
above, only issuance or denial of the permit by EPA would be
subject to judicial review.
A final decision by the Administrator to deny the petition
is subject to judicial review, however. This opportunity for
review is expressly granted by section 505(b)(2). Such review
shall be under the conditions specified in section 307(b). A
petition for review of the petition denial therefore must be
filed within 60 days of the denial, in the Federal court of
appeals for the circuit in which the State is located. The
record for judicial review of this final decision shall
constitute the petition submitted to the Administrator, all
materials submitted by the State to EPA for review of the permit,
and any other materials relied upon by EPA in denying the
petition. When EPA's denial of a petition is challenged in
court, the already issued permit, of course, remains in effect.
The Agency is proposing to require, as a criterion for approval
of the State operating permit program, that each State have a
provision in their administrative procedures act placing a bar on
when permits or conditions of permits may be challenged after
issuance. This bar would disallow challenges to permit
conditions after a specified period of time, such as 30 days.
The purpose of the provision is to ensure that permittees do not
attempt to escape liability for violations of permit conditions
by challenging those conditions after they are in violation or
after the State or EPA attempts to take an enforcement action.
To provide States with flexibility, the Agency solicits comment
on allowing time bars on permit challenges of up to 4 months.
E. Implications For Section 112
Section 112 includes a list of 189 hazardous air pollutants
some sources of which will be subject to emissions standards
under section 112. The EPA must publish a list of source
categories or subcategories of major sources that emit these
pollutants within 1 year after enactment. The EPA then must
issue MACT standards for each listed source category or
subcategory according to a prescribed regulatory schedule. For
example, standards for 40 categories must be set within 2 years
of enactment. The standards for new sources are to be based on
the maximum emissions reductions achieved on the best controlled
similar source, while the standards for existing sources must, in
general, be at least as stringent as the average of the best
controlled 12 percent of the sources in the category. Companies
that accomplish early reductions of emissions receive a 6-year
compliance extension from meeting the MACT requirements, if they
reduce their annual emissions of listed hazardous air pollutants
by 90 percent over a given baseline (95 percent for particulate
pollutants) subject to certain criteria. All sources subject to
section 112 must obtain a permit issued pursuant to a Title V
permit program.
(1) Applicability
The proposed Part 70 program would implement for subject
sources existing section 112 standards as well as future section
112 standards requiring the use of MACT, GACT, any technologies
to reduce unreasonable residual risk, and any accidental release
requirements mandated under section 112(r). In the development
of MACT standards, EPA intends to develop model permit conditions
as guides to the implementation of these standards through
permitting. All major sources as defined in section 112, and any
other source subject to standards under section 112 (unless
exempted through rulemaking by the Administrator) are subject to
the Part 70 permit program. "Major source" is defined by section
112 as any stationary source (or group of stationary sources)
located within a contiguous area, and under common control, that
has the potential to emit, after considering controls, of 10 tpy
or more of any hazardous air pollutant (defined initially as a
list of 189 which is subject to change), or 25 tpy or more of any
combination of these pollutants. The Administrator may also
establish a lesser quantity for a major source on the basis of
potency of the air pollutant, persistence, potential for
bioaccumulation, other characteristics of the air pollutant, or
other relevant factors.
As discussed under 70.3, the Part 70 permitting process
applies to all regulated emissions units on the premises of a
"major" source. In addition, the Part 70 permit process applies
to "area" sources (as defined in section 110) which have one or
more aspects of its plant site subject to section 112 unless
exempted by rulemaking. Once affected by the permitting process,
compliance with all applicable requirements of the Act, including
those contained in the SIP and section 112, must be assured
within each Part 70 permit. In addition, where there is no
applicable section 112 standard to implement, Part 70 permits
must still impose any applicable control requirements described
in sections 112(g) or 112(j).
(2) Section 112(l) Programs
Section 112(l) outlines a program for State implementation
of section 112. A State may develop and submit to the EPA a
program for the implementation and enforcement (including a
review of enforcement delegations previously granted) of
emissions standards and other requirements for air pollutants
subject to section 112, including requirements for the prevention
and mitigation of accidental releases pursuant to section 112(r).
These programs would be similar to the existing programs used by
States to enforce existing section 112 standards and the program
envisioned by Title V. Such a program may provide for partial or
complete delegation of the Administrator's authorities and
responsibilities to implement and enforce emissions standards
(provided they would be no less stringent than those promulgated
by EPA) and prevention requirements. The program should clarify
the process by which delegation of authority is accomplished and
whether it must be repeated for each new standard that is
promulgated.
The EPA is required by section 112 (l)(2) to publish
guidance within 12 months of enactment which, in part, should aid
States in developing their programs. Section 112(l)(5) States
that the EPA shall disapprove the State's program under the
following circumstances:
(a) The authorities are inadequate to assure compliance by
all sources within the State with each applicable standard,
regulation, or requirement established by the Administrator under
section 112.
(b) Adequate authority does not exist, or adequate
resources are not available to implement the program.
(c) The schedule for implementing the program and assuring
compliance by affected sources is not sufficiently expeditious.
(d) The program is otherwise not in compliance with the
guidance issued by the EPA, or is not likely to satisfy, in whole
or in part, the objectives of the Act.
The EPA proposes that the procedural requirements in section
112(l) to review and approve/disapprove State programs will be
met by the promulgation of Part 70. The requirements for an
adequate Part 70 submittal [III.B., IV.D.] contain equivalent
approval criteria which are substantially the same as those
contained in section 112(l)(5). Part 70 also contains several
additional and more specific requirements that assure
implementation of all Act requirements, including MACT,
applicable to subject sources through a permit program. The EPA
also believes that State efforts to develop and implement a Title
V permit program should not be diluted by encouraging the
development of separate but similar programs to implement just
section 112.
Where section 112(l) identifies additional program
requirements [such as those relating to enforcement of MACT or
GACT requirements at non-permitted sources or the handling or
storing any substance listed pursuant to section 112(r)], States
are free to submit these as provisions within their Title V
permit programs in order to meet section 112(l). Implementation
of these provisions would then be a cost appropriate for recovery
from the required fee schedule [IV.I.]. Accordingly, EPA
solicits comment on today's proposal to consolidate section
112(l) programs with Title V permit programs.
(3) Statement of Adequate Legal Authority
The Part 70 submittal must contain a legal opinion from the
State's Attorney General affirming the adequacy of existing legal
authority to implement and enforce the program. With respect to
section 112, the enabling legal authority should be adequate to
accept delegation of authority to implement and enforce new MACT
standards in a timely way. In the case where a State cannot
immediately accept implementation responsibilities upon
promulgation of a new MACT standard, then the impact of any delay
associated with State implementation should not be significant.
Moreover, any Part 70 permits issued to affected sources during
the time before the State can accept implementation
responsibility for a given standard should be issued in a manner
which does not interfere with section 112 enforcement. One
possibility would be for the State to disallow use of the section
504(f) "permit shield" in such circumstances.
The statement of adequate legal authority must also confirm
that the State has the ability to implement sections 112(g) and
112(j). In the case of section 112(g), States acting as the Part
70 permitting authority must be able to develop and enforce a
case-by-case determination of MACT, after the effective date of
the permit program, on new, reconstructed, or modified sources
where no applicable emissions limitations have been established
by the EPA. These case-by-case MACT determinations must be
consistent with EPA guidance due for publication not later than
18 months after the date of enactment.
Section 112(j) requires that in the event EPA fails to issue
a standard for a major source category or subcategory within 18
months of the scheduled promulgation date for the standard, a
permit must be issued that contains emissions limitations
equivalent to the limitation that would have applied had the
emissions standard been issued on time. Under section 112(j),
the State must have adequate authority after the effective date
of the permit program (but not prior to 42 months after the date
of enactment) to develop and enforce these case-by-case
determinations of MACT.
(4) Alternative Emissions Limitations for Early
Reductions
Section 112(i)(5) provides an extension for existing sources
to comply with otherwise applicable standards for hazardous air
pollutants provided certain criteria concerning early reductions
are met. This subsection requires that the Administrator or a
State acting pursuant to a Title V permit program 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 meeting a standard under section
112(d). 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 make a federally-enforceable
commitment prior to proposal to achieve the reductions, can have
until January 1, 1994 to achieve the reduction. The EPA is
issuing regulations for determining when reductions are
sufficient and verifiable.
Under this guidance, a source owner or operator wishing to
qualify for a hazardous air pollutant standard compliance
extension under the early reduction program must submit a permit
application containing a demonstration that sufficient reductions
have been achieved. The permitting authority would evaluate and
either approve or deny the early reduction demonstration,
normally as part of the permit review and issuance process. In
most cases if a source is denied a compliance extension, the
source will have to meet the applicable hazardous air pollutant
standard within the normal compliance period specified in the
standard. A problem would arise when a source which has applied
for an extension receives word that the early reduction
demonstration has been denied, and the denial comes only a short
time before, or even after, the normal compliance deadline of the
applicable hazardous air pollutant standard. Under this
scenario, the source would not have adequate time to install
appropriate controls to meet the standard.
Sources submitting complete permit applications to States
may not be issued permits for as long as 3 years after the date
of initial State program approval or for 18 months in all other
instances. Review times this long can create problems for
sources seeking such extensions.
An illustration of the potential problem can be made using
the upcoming standard for ethylene oxide sterilizers. The EPA
intends to promulgate a hazardous air pollutant standard under
section 112(d) by April of 1993 for sterilizing facilities using
ethylene oxide. The compliance period for this standard likely
will range up to 24 months, with a subsequent final compliance
date of April 1995. Under the early reduction program, a
sterilizer source will have until December 31, 1993 to achieve
reductions and qualify for a compliance extension. The source
must submit by December 1, 1993 a permit application
demonstrating reductions achieved and must submit any source test
data to complete the demonstration by March 31, 1994, which
leaves approximately 1 year from the time the source submits a
complete permit application to the time the source may
potentially have to comply with the applicable hazardous air
pollutant standard. Clearly, if the State takes 18 months (until
September 30, 1995) to review the application and then denies the
compliance extension, the source would already be in violation of
the standard.
Therefore, for permit applications involving early reduction
demonstrations according to section 112(i)(5) of the Act, it is
proposed that the permitting authority be required to issue the
permit within 9 months of receipt of a complete application. The
EPA proposes a shortened permit review period for this special
situation under authority provided in section 301 of the Act.
The Agency urges permitting authorities to be sensitive to the
need to propose this change in the permit review period to ensure
effective implementation of section 112 without placing sources
in undue jeopardy of violating a hazardous air pollutant
standard. The early reduction provisions in section 112 offer a
significant opportunity to achieve rapid improvements in air
quality across the country. The Agency takes comment on this
proposed position.
The Part 70 permit process, where available, is the intended
implementation mechanism for granting all qualifying sources the
extension for meeting otherwise applicable MACT standards
including those referred to in the special case above. Questions
arise as to how this process will occur in the time period before
the effective date of a Part 70 State permit program. In the
subsequent discussion of the Part 71 program [VI.], the process
is outlined for EPA to issue Title V permits, including those for
MACT extensions.
The EPA believes that actions required of sources before the
Part 71 regulations can be promulgated (i.e., approximately 18
months after enactment) need not be incorporated into a permit
before these regulations are in place. Instead, the Act allows
the source to develop a federally-enforceable commitment which
would be submitted to the appropriate EPA Regional Offices for
review. If accepted and put in force, the federally-enforceable
commitment registers the source's intent to participate in the
early reduction program. When Part 71 regulations become
effective, and after the source has achieved the required
reductions, the source would submit a complete permit
application, including the early reduction demonstration.
The EPA intends to delegate the technical and administrative
responsibility where possible for developing enforceable
agreements or Part 71 permits (as applicable) to States who
request such authority prior to the approval of their Part 70
programs. The EPA solicits comments on how this approach for
accomplishing early implementation of the section 112(i)(5)
requirement can be accomplished.
F. Information Management Support
The EPA acknowledges the importance of an integrated
information management approach for the development and
implementation of programs mandated by the Act Amendments of
1990. As partners in implementing the Act, it is recognized that
State and local agencies have data needs that may, in some cases,
be quite different from the Agency's. It is the Agency's intent
to support an integrated information management approach that
acknowledges individual needs and existing infra structure
(including forms), yet enables EPA to address its national
responsibilities. Accordingly, the information management
activities associated with meeting the Act's requirements must
seek to fulfill both national and individual program needs. In
addition, they should be guided by a template that promotes
compatibility with, if not direct use of AIRS, which is the
Agency's principal data system for implementing the Act.
The following will accomplish this:
(1) Standard data elements needed for complete application
will be identified to meet basic program needs.
(2) Standard information management procedures for program
implementation and administration will be defined.
(3) Use of implementation agreements, supported by
appropriate guidance, will be encouraged to identify appropriate
information reporting requirements.
Nationally consistent information management is necessary to
ensure the effective functioning of the allowance trading market
under the acid rain program. In a separate rulemaking, the
Agency will propose application requirements and forms to be used
by all affected sources under the acid rain program. As a
condition of approval of State operating permit programs,
permitting authorities will be expected to use these forms.
The Agency solicits comments on how best to implement these
objectives for data collection and management.
G. Relationship of Permit Fees to Section 105 Grants
Once fully established, a State's permit fee program should
recover a significant portion, though not all, of its air program
expenses. Section 105 of the Act continues to require States to
contribute a specified percentage and maintain a certain level of
overall air program support from year to year. Regardless of the
continued stature of the Federal air grant program or the
changing sources of State program support, EPA has interpreted
the Act (Title VIII, section 802) as requiring States to continue
to satisfy their maintenance of effort (MOE) provisions. States
will, therefore, need to report that portion of their permit fee
revenue that will be used to help meet their annual MOE
obligation. EPA plans to provide further clarification through
its upcoming revision of the air portion of the Part 35
regulations governing financial assistance to State and local
agencies for continuing environmental programs. The EPA is
taking this opportunity to solicit comment on its interpretation
of the interrelationship of permit-fees, grants and the MOE
requirement.
H. Integration of NPDES Program Concepts
One of the principles previously identified for designing
and implementing Title V programs is to promote, not preclude,
reasonable integration of Title V permit programs with other
permit programs. Accordingly, EPA has evaluated the NPDES
regulatory provisions for possible inclusion of relevant concepts
within the Part 70 regulation. The Agency is proposing to merge
the programs where this incorporation would not interface with
implementation of other important principles previously
identified to preserve the legislative intent underlying the
content of Title V [II]., such as maintaining, where possible,
existing State operating permit programs and allowing reasonable
flexibility in their future development and implementation.
There are numerous existing regulations which apply to the
NPDES permit program under the CWA which have been reviewed to
determine whether they have applicability to the Title V
operating permit program. Based on the successful implementation
of the NPDES program by the Agency and the States, and based on
the Agency's future direction toward consolidated permitting
programs, many of these regulations have been adapted for air and
proposed for incorporation into Part 70. Those which have been
included pose no great burden on either the permitting authority
or the permittee. In fact, in many cases these requirements
represent good business practices and will expedite review and
implementation of the program and of individual permits. General
provisions which are included relate to both program requirements
as well as to permit requirements.
Program areas which have been addressed include enforcement
authorities required of the permitting authority, compliance and
enforcement tracking requirements, program submittal requirements
including Attorney Generals' statements requirements, and
information transfer requirements. Permit provisions addressed
by the regulation include property rights, inspection and entry
rights, standard recordkeeping requirements, signatory and
reporting requirements.
The NPDES regulations in Parts 122-124 also include
requirements regarding program approval/disapproval procedures,
public review procedures, and EPA oversight requirements. Where
appropriate, excerpts from these regulations have been extracted
in whole or in part and incorporated into Part 70. However, at
this time the specific requirements of Parts 124.10 through
124.14 have not been included. The Agency recommends that
permitting authorities consider these parts when developing their
permit programs; and at this time the Agency is soliciting
comments on including requirements regarding public notice,
hearings, and comment periods on Title V permit actions.
The proposed incorporation of several specific features from
the NPDES program adds to the considerable common ground already
shared by the two programs as a result of their basic design
(i.e., Title V was modeled in large part on the structure of the
NPDES program). Based on this strong linkage between the air and
NPDES programs, the EPA Administrator further proposes that a
presumption for issue-resolution of Title V implementation
concerns be established based on the relevant experience obtained
from carrying out the NPDES program. Comment is solicited on the
appropriateness of this approach and where it should be limited
in its scope.
VI. Federal Operating Permit Program
A. Purpose
This preamble previously discusses the criteria for
determining if a State operating permit program meets the
requirements of Title V and the responsibility of EPA if the
State-submitted program is not approvable or if a State does not
adequately implement an approved program. The action EPA must
take is discussed under sections III.C. and IV.J. In brief, EPA
must establish and implement an operating permit program that
meets the requirements of Title V for a State in either event of
the State's not developing or implementing a program. The EPA
intends to propose in a subsequent Federal Register notice a new
Part 71 which would set forth the elements of an operating permit
program which EPA would implement. Part 124 (containing
procedural regulations on the issuance of EPA permits) will be
amended to provide similar procedural rules for Federal issuance.
Also to be included in Part 71 would be provisions regarding
the requirements for EPA issuing permits (1) for Phase I sources
of acid rain precursors and (2) for sources of hazardous air
pollutants which elect under section 112(i)(5) to demonstrate a
90/95 percent or greater early emissions reduction to receive an
extension from MACT standards. Both of these permitting
provisions are subsequently discussed in this section. These
permitting requirements would fall on the EPA during the period
prior to a State submitting and gaining approval for an operating
permits program under Part 70. The Parts 71 and 124 regulations
also would serve as the basis for EPA permitting sources on
certain Indian lands. Although section 301(d) authorizes EPA to
treat Indian tribes as States for certain purposes, including
issuing Title V permits, EPA has not yet promulgated regulations
on this matter. Many tribes probably will not seek to (1) to be
treated as a State, or (2) run a Title V program. Where the
tribe does not permit sources on Indian lands, EPA plans to carry
out the permitting itself.
When reviewing the proposed Part 70, the public is
encouraged to also consider the possible provisions that would be
in a Part 71 Federal permitting program. The EPA is soliciting
comment on the concepts discussed in this preamble section
concerning a Federal permitting program. These comments will be
considered in developing a subsequent Federal permit program
proposal notice.
B. Part 71 Default Program
The Part 71 program that EPA would implement if a State
defaults on developing or implementing an acceptable Title V
program must meet the same criteria that a State must meet for
approval as part of the Part 70 program submittal. These Part 71
provisions could, therefore, act as a model for the regulation
portion of a State operating permit program.
Under Part 70, States are asked to establish certain
requirements or procedures within certain constraints, e.g.,
permit fee structure, standard application form, permit review
phase-in, public participation. For a Part 71 program, EPA must
spell out details of these requirements or procedures just as the
State must do in its program submittal. The EPA solicits
comments on preliminary thoughts as to the nature of the
approaches that EPA would take on these items.
(1) SIP Ambiguity
A basic requirement of Title V is that permits are issued
such that all applicable requirements of the Act are met. If an
approved SIP has ambiguous provisions that are not clear or
certain provisions necessary for a control strategy demonstration
are missing, EPA does not typically intend to "fix" or revise the
SIP in the permit. The permit will generally adopt the
provisions of the approved SIP and any changes that are necessary
will be achieved through the SIP call mechanism. The EPA will,
however, prescribe any clarifications or new requirements as
needed to ensure that the applicable requirements are written in
enforceable terms. The EPA reserves the right to issue a source-
specific FIP (in the event a State fails to correct SIP
deficiencies) which would then be implemented in the subsequent
permit. Public comment is solicited on this approach.
(2) Complete Application/Data Elements
The EPA will specify the elements of a standard application
form and include such a form in an appendix to Part 71. Criteria
will be provided for filling out the form and specifying what
constitutes a complete application. Public comment is solicited
on the contents of an application.
(3) Transition/Permit Review Phase-In
The EPA will phase in over a 3-year period the review of
initial permit applications submitted under a Part 71 program.
About one-third of the applications will be reviewed each of the
3 years. Public comment is solicited on the criteria for phase-
in. The phase-in approach could be to review the largest, most
serious sources first. The EPA does not recommend that the less
serious, smaller sources be reviewed first, even though the
review staff might obtain some experience before addressing the
larger sources. An alternative approach could be to first
address sources of hazardous air pollutants that are not
necessarily presently regulated specifically for those
pollutants. This approach would assist in preparation of better
emission inventories. Another approach would be to address
sources for which MACT standards have been set and leave to the
last those sources for which MACT standards are likely to be set
in the near future.
(4) Public Participation/Public Hearings
Public comment is solicited on the appropriateness of
procedures for processing Part 71 permits similar to those found
in 40 CFR Part 124. In particular, the Agency solicits comment
on reasonable criteria for determining the need for a public
hearing and on reasonable procedures for processing actions to
reopen existing Part 71 permits.
(5) Permit Fees
The EPA is authorized to collect permit fees if a State
defaults on its program and EPA must implement Part 71. The
default fee schedule in Part 70 is based on a $25/tpy rate (1990
basis). The EPA would implement this rate on sources under a
Part 71 program, based on the actual emissions of the subject
sources over the preceding calendar year. Public comment is
solicited on the appropriateness of this rate and on the
possibility (notwithstanding the exemptions for small businesses)
of charging higher rates on sources with lower emission rates
(i.e., hazardous air pollutant sources of 10 to 25 tpy). These
small sources will require permit process resources far in excess
of the fees they would pay under a $25/tpy schedule. For these
sources, EPA could charge a permit fee to cover reasonable costs
for review time and for follow-up compliance activities. The EPA
may not, however, collect fees for emission from affected sources
under Phase I of the acid rain program [408(c)(4)].
(6) Compliance Plan for Noncomplying
Sources/Certification
The permit application of a noncomplying source must be
accompanied by a compliance plan and each application must
contain a certification that the application contents are true,
accurate and complete. The certification must be signed by a
responsible official who is subject to criminal prosecution for
false information in an application. All certifications for
affected sources under the acid rain program must be signed by
the designated representative for that source. Criteria for
eligibility as a designated representative will be promulgated in
a separate rulemaking. Public comment is solicited on whether
the selection of this official must meet similar criteria to that
contained in the NPDES program [70.2(bb)]. The EPA will include
in Part 71 the specifics for an approvable compliance plan for
noncomplying sources.
(7) Permit Reopenings/Amendments
The EPA would reopen and revise a permit under certain
circumstances. New MACT standards or revised SIP requirements on
the source would cause an automatic reopening of permits with
remaining terms of 3 or more years. The EPA believes that
material error or inaccuracies should also represent cause for
reopening. The reopened and revised permit would go through the
full public participation procedures as if the permit were new or
being reissued at the end of its normal lifetime. If a permit
needed minor changes, such as some administrative error that did
not affect the emissions or compliance, the changes could be made
through an administrative amendment with no public participation
or other formal procedures. Public comment is solicited on
reasons for reopening a permit and on the process of
administratively amending a permit.
(8) Operational Flexibility
The EPA intends to provide reasonable flexibility upon
request to sources to operate in different modes without
reopening and revising the permit. The various operating
scenarios or worst case situation would have to be specified in
the permit, including the corresponding level of control, after
which the source could choose the most appropriate operation
configuration at any specific time and be within the permit. The
effect of any operational flexibility would have to be
demonstrated to assure that all requirements of the Act would be
met. In particular, EPA intends to make available the options
described previously in the 70.7 discussion on designing
flexible Part 70 permits. Public comment is solicited on any
restrictions to this possible practice.
(9) Geographic Applicability
If EPA implements a Part 71 program, it will be for the part
of the State not covered by an acceptable program. If EPA
approves a local agency operating permit program, EPA will cease
implementation of the Part 71 program for that geographic area
and the local agency will assume responsibility for issuing
operating permits. Previously-issued Federal permits may be
formally adopted and enforced by the local agency. If an
approved local agency program is already in place when EPA adopts
a Part 71 program, it will only be for the part of the State not
covered by the local program. Public comment is solicited on
this approach.
(10) Permit Shield
The EPA has the same option to institute a shield under Part
71 as the States have under a Part 70 program and would intend to
use it wherever it would not be precluded in the Part 70
proposal. The permit shield will be disallowed to the extent
that it is inconsistent with the acid rain program. Under a Part
71 Federal operating permit program, however, sources can still
be subjected to State requirements enforced by the State outside
the permit. This could also be the case under a State program.
The EPA proposes to recognize and to enforce only the conditions
of the federally-approved permit and to reopen for cause the
permits of sources in SIP call areas as new regulations would
otherwise become applicable. Public comment is solicited on the
acceptability of EPA's position on this issue.
(11) Noncriteria Limits
The EPA will in general not implement the requirements of an
air toxics program for the State under a Part 71 program. If
sources of hazardous air pollutants were subject to only State
rules, EPA would not adopt these in a Part 71 permit unless they
were also part of a criteria pollutant control strategy. Any
MACT standard would, of course, be adopted and a permit could be
reopened for a new MACT standard. Public comment is solicited on
this approach.
C. Acid Rain Program
In a subsequent Federal Register notice, EPA will propose
its program for controlling sources of acid rain precursors as
required by Title IV of the Act. That program will consist of
two phases, the first to be implemented by an EPA permitting
program and the second to be implemented by State operating
permit programs. The specific requirements for which sources
will be controlled and to what extent will be covered by the
subsequent notice. The discussion herein addresses only the
permitting portion of the acid rain program.
The Phase I permitting program would address the 107 largest
sources of sulfur and nitrogen oxide compounds beginning 2 years
after enactment. This would be before State operating permit
programs are required. The EPA would, therefore, need to
establish a permit program to address the Phase I sources. This
program would be a component of Part 71 and would consist of
those portions of Part 71 appropriate to fulfill the permitting
requirements of the acid rain sources, e.g., standard
application, public participation, compliance plan for
noncomplying sources, and certification.
The acid rain regulations would establish the requirement
for operating permits and emission reductions on the Phase I
sources and also refer to the applicable sections of Part 71,
rather than rewriting the same sections. Public comment is
solicited on the appropriate portions of Part 71 to apply to the
acid rain sources in this permitting program. Specifically,
comment is solicited on the following:
(1) Permit Content
The permits for Phase I would only address those emissions
that contribute to acid rain and would be issued by EPA, rather
than the States. Requirements of the Act other than those
implementing Title IV would not be included in these permits.
Phase II of the acid rain program will be implemented by States
with approved operating permits programs. The Agency expects
that States will include the Title IV requirements in the
facility's operating permit under the Part 70 program which would
also address all other requirements of the Act.
(2) Term
The term of all acid rain permits must be 5 years [408.(a)].
(3) Shield
Sources under a Phase I permit will, for Federal purposes,
only address Title IV and applicable SIP requirements for sulfur
or nitrogen oxide emissions. The shield in Title V will not
apply beyond these requirements and would not apply with respect
to Title IV-based requirements. States could, however, establish
and enforce more stringent requirements on a source.
(4) Permit Fee
Acid rain precursor sources would be required to pay an
annual permit fee during Phase II of the acid rain program. No
fee requirements would be imposed by EPA for the Phase I acid
rain permits. States may, of course, require permit fees for
non-acid permitting prior to commencement of Phase II. Thus,
States may impose fee requirements for SO2 or NOx if these
pollutants are regulated at the source pursuant to provisions of
the Act other than Title IV.
D. Maximum Achievable Control Technology (MACT) Extensions
The section 112 program for establishing MACT standards
includes provisions for a 6-year extension for MACT application
if sources make certain demonstrations with respect to their
emissions. To obtain an extension, the source must reduce
emissions by 90/95 percent or greater over 1987 emission levels.
The mechanism for the early evaluation of a demonstration from a
proposed source will be a Part 71 permit. Any application for a
MACT extension, therefore, would be accompanied by a permit
application adopting emission limits at levels indicated in the
demonstration so that they would become federally-enforceable
[V.E.].
The program to issue permits for MACT extension purposes
will be, as for the Phase I acid rain program, a separate portion
of Part 71 which would refer to appropriate portions of the Part
71 program. These permits would only address those hazardous air
pollutant emissions associated with the MACT standard, would not
have an associated permit fee, would not shield sources from
other more stringent State requirements, and would be for a 5-
year fixed term. Public comment is solicited on this approach.
VII. Administrative Requirements
A. Public Hearing
One public hearing and two public meetings will be held to
discuss the proposed regulations. Persons wishing to make oral
presentations at the public hearing should contact EPA at the
address given in the ADDRESSES section of this preamble. If
necessary, oral presentations will be limited to 15 minutes each.
Any member of the public may file a written statement with EPA
before, during, or within 30 days after the hearing. Written
statements should be addressed to the Air Docket address given in
the ADDRESSES section of this preamble.
A verbatim transcript of the public hearing, written
statements, and a summary of the public meetings will be
available for public inspection and copying during normal working
hours at EPA's Air Docket in Washington, DC (see ADDRESSES
section of this preamble).
B. 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)
[307(d)(7)(A)]. The docket is available for public inspection at
EPA's Air Docket, which is listed under the ADDRESSES section of
this notice.
C. 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 cost to 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.
The total cost of implementing the operating permit programs
in all States would incur annualized costs in excess of $100
million. The requirements for these costs are contained in
section 502(b)(3) of Title V. Although some of these costs
represent some baseline costs, due to existing State permitting
and not new costs, the Agency has declared these regulations to
be major. Accordingly, a Regulatory Impact Analysis has been
prepared.
Given the mandate within Title V to develop these
regulations, the Agency has taken steps to provide for the timely
accomplishment of the required objectives. In following the
implementation principles previously described in section II.,
EPA has proposed to allow flexibility in permit design, use
general permits to expedite the review process for certain
smaller sources, and to phase-in implementation of certain
requirements. The Agency has thus lowered the 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.
These regulations and the draft RIA were submitted to OMB
for review as required by E.O. 12291. Any written comments from
OMB to EPA, and any EPA responses to those comments, will be
included in Docket A-90-33.
D. 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.
The EPA has established guidelines for determining whether
an RFA is required to accompany a rulemaking package. The
guidelines 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 recordkeeping 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 is proposing to use the concept of 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 that large numbers of small
entities will be adversely affected or will experience
disproportionate significant impacts. As such, the Agency
proposes to certify that this rule, if promulgated, will not have
a significant and disproportionate adverse economic impact on a
substantial number of small business entities and thereby does
not require an RFA. The EPA, however, solicits any information
or data which might affect this proposed certification. The EPA
will reexamine this issue any subsequent analysis of information
received would also be avilable in the docket and will be taken
into account before promulgation.
E. Paperwork Reduction Act
The information collection requirements in this proposed
rule have been submitted for approval to OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. An ICR document has been
prepared by EPA and a copy may be obtained from Sandy Farmer,
Information Policy Branch (PM-223), U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460, (202) 382-
2706.
The average annual burden hours for the collection of
information is approximately 92 hours for large sources, 58 hours
for small sources, and 32 hours per State/local agency response.
The total annual burden is estimated to be around 1.5 million
hours.
Send comments regarding the burden estimate or any other
aspect of this collection of information, including suggestions
for reducing this burden by [60 days after publication] to:
Chief, Information Policy Branch (PM-223), 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 final rule will respond
to any OMB or public comments on the information collection
requirements contained in this proposal.
F. Federalism Implications
The proposed Part 70 regulations reflect the
congressionally-intended requirements in Title V of the Act for
States to develop operating permit programs The basic elements
required by these regulations are directly from Title V, such as
standard applications form, public participation, permit content,
monitoring and reporting requirements, and compliance plans.
The Work Group that developed these proposed rules received
input from State and local air pollution agency representatives
concerning the concept of building on existing State and local
agency permit programs so as to minimize the disruption, of, and
maximizing the utilization of, existing practices.
For these reasons, a federalism assessment has not been
prepared. The EPA, however, solicits comment on any perceived
discretion it has in designing the program being proposed today
and will consider the need for such an assessment based on
comments received during the public comment period. Any
information indicating the need for a federalism assessment will
be available in the docket.
List of Subjects in 40 CFR Part 70
Air pollution control, Prevention of significant
deterioration, New source review, Fugitive emissions, Particulate
matter, Volatile organic compounds, Nitrogen dioxide, Carbon
monoxide, Hydrocarbons, Lead, Operating permits.
Dated: April 23, 1991.
F. Henry Hubicht
Acting Administrator. 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, operational
flexibility and revisions.
70.8 Permit review by 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 operating
permit programs and the corresponding standards and procedures by
which the Administrator will approve, oversee, and withdraw
approval of State operating permit programs. This permitting
process is a key element in the implementation of the Act's
regulatory requirements to all stationary sources to which it
applies.
(b) This permitting program is designed to promote timely
and efficient implementation of goals and requirements of the
Act. Such a system offers many benefits: a better organized and
clearer process for implementing air pollution control
requirements, improved information management, more efficient
enforcement, greater certainty for sources and the public,
reasonable operational flexibility for industry to respond to
market-based demands, greater speed in addressing various source-
specific actions that previously had to be processed as State
implementation plan (SIP) revisions, and increased and more
predictable funding for State air pollution permitting programs.
(c) All sources subject to these regulations must obtain a
permit to operate that assures compliance by the source with all
applicable requirements of the Act. 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.
(d) Nothing in this part shall prevent a State, or
interstate permitting authority, from establishing additional
requirements not inconsistent with this Act. No permit, however,
can be less stringent than the applicable provisions of the Act,
including the applicable implementation plan. In the case of
Federal intervention in the permit process, the Administrator
reserves the right to implement the State program, in whole or in
part, or the standard Federal program contained in Part 71 of
this chapter (EPA expects to issue Part 71 regulations in May,
1992.)
(e) 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 Parts 72 through 79 of this chapter, or would
otherwise be inconsistent with Title IV of the Act (EPA expects
to issue regulations in Parts 72 through 79 in May, 1992.)
(f) Issuance of State permits under this part may be
coordinated with issuance of permits under the Resource
Conservation and Recovery Act, the National Pollutant Discharge
Elimination System, and section 404 permits, whether issued by
the State, the Environmental Protection Agency (EPA), or the
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.
(a) "Act" means the Clean Air Act, as amended, 42 U.S.C.
7401, et seq.
(b) "Actual emissions" means the actual rate of emissions
in tons per year of any regulated pollutant emitted from a Part
70 source over the preceding calendar year or any other period
defined by the permitting authority to be consistent with the fee
schedule approved pursuant to 70.9 of this part. 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.
(c) An "administrative permit amendment" is a permit
revision that accomplishes one or more of the following changes:
(1) Corrects typographical errors.
(2) 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.
(3) Requires more frequent monitoring or reporting by the
permittee.
(4) 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 permittees has been submitted to the permitting authority.
(5) Incorporates into the Part 70 permit the requirements
from preconstruction review permits or exemptions authorized
under an approved new source review program in the applicable
implementation plan, provided this program would meet the
requirements of 70.7(f).
(6) Any other chnage that the permitting authority
determines to be similar to those in 70.2 (c)(1) - (4).
(d) "Affected source" means a source that includes one or
more affected units under Title IV of the Act.
(e) "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.
(f) "Affected unit" means a "unit" as that term is defined
in Title IV of the Act, that is subject to the emission reduction
requirements or limitations of Title IV of the Act.
(g) "Applicable requirements" or an "applicable
requirement" of the Act include all of the following as they
apply to emissions units in a Part 70 source, unless the context
of the regulation requires otherwise:
(1) Requirements of the applicable implementation plan
approved or promulgated by EPA under Title I of the Act that
implement the relevant requirements of the Act, including any
revisions to that plan, in Part 52 of this chapter.
(2) Terms and conditions of any preconstruction permits
issued pursuant to Title I, Part C or D of the Act.
(3) Requirements of any standard and any other requirements
promulgated under section 111 of the Act.
(4) Requirements of any standard promulgated for hazardous
air pollutants and any other requirements under section 112 of
the Act.
(5) Requirements of the acid rain program under Title IV of
the Act and Parts 72 through 79 of this chapter.
(6) Any monitoring, reporting, and certification
requirements established pursuant to section 504(b) or
section 114(a)(3) of the Act.
(7) Standards and regulations governing solid waste
incineration, under section 129 of the Act.
(8) Standards and regulations for consumer and commercial
products, under section 183(e) of the Act.
(9) Standards and regulations for tank vessels, under
section 183(f) of the Act.
(10) Requirements of the program to control air pollution
from Outer Continental Shelf sources, under section 328 of the
Act.
(11) Requirements of the program to protect stratospheric
ozone, under Title VI of the Act.
(h) A "complete application" is one that the permitting
authority has determined, consistent with the criteria in
70.5(c) of this part, to contain all the information needed to
begin to process the application. A determination that an
application is complete continues in effect, provided that the
source submits by the date(s) specified by the permitting
authority any additional information reasonably determined by the
permitting authority in writing to be necessary for developing
and issuing the Part 70 permit.
(i) "Designated representative" means a responsible person
or official authorized by the owner or operator of an affected
unit, in accordance with Title IV of the Act and Parts 72 through
79 of this chapter, to represent the owner or operator in matters
pertaining to the holding, transfer, or disposition of allowances
allocated to the unit, and the submission of and compliance with
permits, permit applications, and compliance plans for the unit.
For purposes of acid rain program permit requirements, whenever
the term "responsible official" is used in this part, it shall
refer to the "designated representative" of the affected source
or affected unit, for whom a certificate of designation has been
submitted in accordance with Part 72 of this chapter.
(j) A "draft proposed permit" is the version of a permit
for which the permitting authority offers public notice and an
opportunity for public comment and hearing.
(k) "Emissions unit" means any part of a stationary source
which emits or has the potential to emit any regulated pollutant.
This term is not meant to alter or affect the definition of the
term "unit" for purposes of the acid rain program.
(l) The "EPA" or the "Administrator" means the
Administrator of the U.S. EPA or his designee.
(m) "Federally-enforceable limitation" means all
limitations and requirements enforceable by the Administrator.
(n) A "final permit" is the version of a Part 70 permit
issued by the permitting authority that has completed all
administrative concurrence and procedures at the State and
Federal levels.
(o) "Flexible source operation refers to any change
provided for in 70.6(d).
(p) "Fugitive emissions" are those emissions which could
not reasonably pass through a stack, chimney, vent, or other
functionally-equivalent opening.
(q) A "general permit" is a standardized Part 70 permit
that may be made applicable to numerous similar sources.
(r) "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 is any of the
following:
(1) A major source as defined in section 112 of the Act for
the following:
(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.
(ii) For radionuclides, such term 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.
(xxvii) All other stationary source categories regulated
under section 111 or 112 of the Act.
(3) A major stationary source as defined in Part D of Title
I of the Act including:
(i) For ozone nonattainment areas, sources with the
potential to emit 100 tons or more per year of volatile organic
compounds or oxides of nitrogen in areas classified as "marginal"
or "moderate," 50 tons or more per year in areas classified as
"serious," 25 tons or more per year in areas classified as
"severe," and 10 tons or more per year in areas classified as
"extreme;" except that the references in this clause to 100, 50,
25, and 10 tons per year 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 such
source shall not be subject to any requirement otherwise
applicable to such source under section 182(f) of the Act.
(ii) For ozone transport regions established pursuant to
section 184 of the Act, sources with the potential to emit 50
tons or more per year 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 tons or more per year of carbon monoxide.
(iv) For particulate matter (PM10) nonattainment areas
classified as "serious," sources with the potential to emit 70
tons or more per year of PM10.
A stationary source or group of stationary sources shall be
considered as part of a single industrial grouping if all of the
pollutant emitting activities at such source or group of sources
belong to the same Major Group (i.e., which have all the same
two-digit code) as described in the Standard Industrial
Classification Manual, 1972, as amended by the 1977 Supplement
(U.S. Government Printing Office stock numbers 4101-0066 and 033-
055-00176-0, respectively). Notwithstanding the other provisions
of this subsection, the activities of any vessel shall not be
considered part of a major source.
(s) A "minor permit amendment" is a revision to a Part 70
permit that meets the requirements of 70.7(f).
(t) A "Part 70 permit" is any permit issued, renewed,
amended, or revised pursuant to this part.
(u) A "Part 70 source" is any source subject to the
permitting requirements of this part, as provided in sections
70.3(a) and 70.3(b) of this part.
(v) A "permit modification" is a revision to a Part 70
permit that meets the requirements of 70.7(d) of this part.
(w) A "permit revision" is any permit modification,
administrative permit amendment, or minor permit amendment.
(x) "Permitting authority" means either of the following:
(1) The Administrator, in the case of EPA-implemented
programs.
(2) The State air pollution control agency, local agency,
other State agency, Indian tribe or other agency authorized by
the Administrator to carry out a permit program under this part.
(y) "Potential to emit" means the maximum capacity of a
stationary source to emit a pollutant under its physical and
operational design. Any physical or operational limitation on
the capacity of a source to emit a 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 federally-enforceable. 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.
(z) A "proposed permit" is the version of a permit that the
permitting authority forwards to the Administrator for review
after closure of the public notice period and after considering
any public comments (including those from any affected State).
(aa) "Regulated pollutant" means the following:
(1) Nitrogen oxides or any volatile organic compound.
(2) Any pollutant for which a national ambient air quality
standard has been promulgated.
(3) Any pollutant that is addressed by any standard
promulgated under section 111 or 112 of the Act.
(bb) "Renewal" is the process by which a permit is reissued
at the end of its term.
(cc) "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 the
manager of one or more manufacturing, production, or operating
facilities employing more than 250 persons or having gross annual
sales or expenditures exceeding $25 million (in second quarter
1980 dollars), if authority to sign documents has been assigned
or delegated to the manager in accordance with corporate
procedures.
(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).
(dd) The term "State" includes all non-Federal permitting
authorities, including local agencies and interstate associations
as well as statewide programs. The term "State" also encompasses
those Indian tribes that the Administrator has determined,
pursuant to section 301(d) of the Act, to treat as States.
"State" shall have its conventional meaning where such meaning is
clear from the context. For purposes of the acid rain program,
the term "State" shall be limited to authorities within the
48 continuous States and the District of Columbia as provided in
section 402(14) of the Act.
(ee) "Stationary source" means any activity or piece of
equipment at a building, structure, facility, or installation
that emits or may emit any air pollutant.
(ff) "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, State does
not include local permitting authorities, but refers only to the
entire State, Commonwealth, or Territory.
70.3 Applicability.
(a) Sources subject to permitting: Part 70 Sources. A
State permitting program under this part must provide for
permitting of at least the following sources:
(1) Any major source as defined in 70.2(r) of this part.
(2) Any source, including an area source, subject to a
standard or regulation promulgated under section 111 of the Act.
(3) Any source, including an area source, subject to a
standard or regulation promulgated under section 112 of the Act.
(4) Any affected source subject to Title IV of the Act and
the acid rain program requirements of Parts 72 through 79 of this
chapter, including any election source as defined in Title IV of
the Act.
(5) Any source in a source category designated by the
Administrator pursuant to this section. These source categories
include [reserved].
(b) Source category exemptions. A State permitting program
under this part may provide for exemptions of source categories
from the requirements of this part consistent with the
Administrator's designations pursuant to this section.
(1) Except as provided in paragraphs (b)(2) and (4) of this
section, all sources listed in paragraph (a) of this section that
are not major sources, as defined in 70.2 of this part (i.e.,
nonmajor sources) or affected sources under the acid rain program
in Parts 72 through 79 of this chapter, and for which the State
has made and the Administrator has approved the showing described
in paragraph (b)(2) of this section, may be exempted from the
obligation to obtain a Part 70 permit for a period of 5 years
from the effective date of the Part 70 or Part 71 program, as
applicable, in the State.
(2) In the case of sources covered in paragraph (a) of this
section that are not a major source that emit any pollutant or
precursor to a pollutant for which the area in which such sources
are located is designated nonattainment, the State shall submit
both of the following:
(i) An inventory or quantification of such sources in
nonattainment areas which would be exempted from the program.
(ii) A demonstration that the State can assure compliance
with the State's nonattainment area applicable implementation
plan obligations applicable to such sources without relying on
the Part 70 permit program for the first 5 years of the program.
(3) In the case of nonmajor sources subject to a standard
promulgated under section 112 of the Act after [date of
promulgation], the Administrator shall determine whether to
exempt any or all applicable sources at the time that the new
standard is promulgated.
(4) 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 and receive a permit under a program
approved pursuant to these regulations.
(5) The following source categories are exempted from the
obligation to have a Part 70 permit: [reserved]
(c) Emissions units and Part 70 sources.
(1) For Part 70 sources subject to the Part 70 program
because they are major sources under 70.2(r) of this part, the
permitting authority shall include in the permit all applicable
requirements for all regulated emissions units in the major
source.
(2) For any nonmajor Part 70 source subject to the Part 70
program under paragraphs (a) and (b) of this section, the
permitting authority shall include in the permit all requirements
of the Act applicable to emissions units which trigger
classification as a Part 70 source.
(3) The emissions of regulated pollutants from any units
not directly subject to applicable requirements must be described
for fee purposes, unless the permitting authority pursuant to
70.9(b)(2)(v) of this part has exempted it from the collection
of fees.
(d) Fugitive emissions. Fugitive emissions from a Part 70
source shall be reviewed and included in the 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" in 70.2(r)(2) of this part.
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 whole permit program, under State law or
under an interstate compact, meeting the requirements of this
part. If this 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, unless the Administrator authorizes some other time.
(b) Elements of the initial program submission. Any State
that seeks to administer a program under this Part shall submit
to the Administrator a formal 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 program, evidence of
their procedurally correct adoption (including any required
notice of public comment and any significant comments received),
and copies of all applicable State or local statutes and
regulations that authorize the Part 70 regulations, including
those governing State administrative procedures.
(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 must 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 that assure compliance with each
applicable standard, regulation, or requirement under the Act by
all sources required to have a Part 70 permit.
(ii) Incorporate appropriate monitoring, recordkeeping,
reporting, and compliance certification requirements into Part 70
permits.
(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 section 129(e) of the Act.
(iv) Issue permits for solid waste incineration units
combusting municipal waste subject to section 129(e) of the Act
for a period not to exceed 12 years and review such permits no
less than every 5 years.
(v) Incorporate into permits emission limitations and all
other applicable requirements, conditions, and prohibitions under
the Act, including those in an applicable implementation plan.
(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 of this
part.
(viii) Make available to the public any permit application,
compliance plan, permit, and monitoring and compliance report
under section 503(e) of the Act, with the exception of that
information entitled to confidential treatment pursuant to
section 114(c) of the Act.
(ix) Not issue a permit for the purposes of Part 70 if the
Administrator timely objects to its issuance pursuant to
70.8(c) of this part.
(x) Provide an opportunity for judicial review in State
court of the final permit by the applicant, any person who
participated in the public comment process provided pursuant to
70.7(i) of this part, and any other person who could obtain
judicial review of such actions under State laws.
(xi) Ensure that the acid rain portions of permits for
affected sources meet the requirements of Parts 72 through 79 of
the Act.
(xii) Ensure that the authority of the State/local
permitting Agency is not used to modify the acid rain program
requirements.
(xiii) Issue and enforce general permits if the State seeks
to implement the general permit program.
(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.
(ii) Criteria for monitoring source compliance including
inspection strategies and inspector training certification.
(5) A complete description of the State's compliance
tracking and enforcement program, unless the State has an
agreement with EPA that provides this information.
(6) A showing of adequate authority and procedures to
determine within 30 days of receipt whether applications
(including renewal applications) are complete, and to take final
action on such applications within 18 months. Any failure to
take final action in a timely manner shall be treated as a final
permit action solely for purposes of obtaining judicial review in
a State Court to require that actions be taken by the permitting
authority on such application without additional delay.
(7) A demonstration, consistent with 70.9 of this part,
that the permit fees required by the State program are sufficient
to cover all reasonable (direct and indirect) costs required to
develop and administer the Part 70 permit program.
(8) A statement from the Governor that adequate personnel
and funding have been made available to develop and administer
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
State 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, each agency must have jurisdiction
over a class of activities.] The responsibilities of each agency
must be delineated, their procedures for coordination must be set
forth, and an agency may be designated as a "lead agency" to
facilitate communications between EPA and the other agencies
having program responsibility.
(iii) A description of the State 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 costs of establishing and
implementing the program for the first 4 years after approval,
and a description of how the State plans to meet 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 commenced and 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 to the
permitting authority, then one of the following shall occur:
(i) The permit shall not expire until the renewal permit
has been issued or denied.
(ii) All the terms and conditions of the permit shall
remain in effect until the renewal permit has been issued or
denied. These terms and conditions do not include the permit
shield contained in 70.6(h) of this part.
(iii) The renewal permit shall be issued or denied before
the expiration of the Part 70 permit.
Notwithstanding this paragraph, 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,
revoke, and reissue the permit.
(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 for submittal of permit
applications by all Part 70 sources by no later than one full
year after the effective date of the permit program (or a partial
or interim program), and assure that at least one third of such
applications will be acted upon annually over a period not to
exceed 3 years after such effective date, and provide that any
complete permit application containing an early reduction
demonstration under section 112(i)(5) of the Act shall be acted
upon within 9 months of receipt. It shall also provide for the
submission of permit applications, whether for initial permits or
permit renewals, and for the permitting of affected sources under
the acid rain program in accordance with the deadline provided in
Parts 72 through 79 of this title.
(12) Any permitting programs, such as those of local air
pollution control agencies, 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 (11) of this section.
(c) Partial programs. The EPA may approve a partial
program if, at a minimum, it applies and ensures compliance with
Title V of the Act and with all the requirements following, as
they apply to the source categories covered by the partial
program:
(1) All requirements of Title V of the Act and of these
regulations.
(2) All requirements established under Title IV of the Act
applicable to affected sources.
(3) All requirements established under sections 111 and 112
of the Act applicable to major sources, area sources, and new
sources.
(4) All other requirements of Title I of the Act (other
than section 112 of the Act).
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.
(d) Interim approval. 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.
The EPA will not grant interim approval to any program unless it
meets each of the following minimum requirements:
(1) Adequate fees. The program must provide for collecting
permit fees adequate to meet the requirements of 70.9 of this
part.
(2) Applicable requirements. The program must provide for
adequate authority to issue permits that assure compliance with
all applicable requirements of the Act, including the
requirements of the applicable implementation plan, for those
sources covered by the program.
(3) Fixed term. The program must provide for fixed permit
terms, consistent with paragraph (b)(3)(iii) and (iv) of this
section.
(4) Public participation. The program must provide for
public notice of and an opportunity for public comment and a
hearing on draft proposed permits.
(5) EPA review. The program must allow EPA an opportunity
to review each proposed permit and to object to its issuance.
(6) Permit issuance. The program must provide that the
proposed permit will not be issued if EPA objects to its
issuance.
In the notice of final rulemaking granting interim approval,
the Administrator shall specify the changes that must be made
before the program can receive full approval and the conditions
for implementation of the program until that time. Such 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 will 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 fully- or partially-approved program.
(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. Any EPA action
disapproving a program, in whole or in part, shall include a
statement of the revisions or modifications necessary to obtain
approval. The Administrator shall approve State programs that
conform to the applicable requirements of this part.
(1) Within 30 days of receipt by EPA of a State program
submission, EPA will notify the State whether its submission is
complete. 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 statutory review period, the one-year review period shall
begin again upon receipt of the revised submission.
(f) State response to EPA review of program.--(1)
Disapproval. The State shall submit to EPA changes to the
program that address the 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 or such other time as specified by the Administrator,
but not to exceed 2 years.
(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 permit
program, or 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. After program approval, EPA shall retain jurisdiction
over any permit (including general permit) that it has issued
unless arrangements have been made with the State to assume
responsibility for these permits. Retention of jurisdiction
shall include the processing of any permit appeals or
modification requests; the conduct of inspections; and the
receipt and review of 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 to the State to collect appropriate fees,
consistent with 70.9 of this part. (i) Program revisions.
Either EPA or the State with an approved program may initiate a
program revision. Program revision may be necessary when the
controlling Federal or State statutory or regulatory authority is
modified or supplemented. The State shall keep EPA fully
informed of any proposed modifications to its basic statutory or
regulatory authority, forms, procedures, or priorities.
(1) Mandatory. If the Administrator determines 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 program, or its means of implementation by the
State, shall be revised 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 effectuate 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 under the circumstances.
(ii) Whenever EPA determines that the proposed program
revision is substantial, EPA shall issue public notice and
provide an opportunity to comment for a period of at least 30
days. The public notice shall be mailed to interested persons
and shall be published in the Federal Register and in enough of
the largest newspapers to provide appropriate coverage. The
public notice shall summarize the proposed revisions and provide
for the opportunity to request a public hearing.
(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 non-substantial program revisions may be
given by a letter from the Administrator to the Governor or his
designee.
(v) Any permitting agency with an approved program shall
notify EPA whenever it 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. If the
information has been submitted to the State under a claim of
confidentiality, the State must submit that claim to EPA when
providing information to EPA under this section. Any information
obtained from a State accompanied by a claim of confidentiality
will be treated in accordance with the regulations in Part 2 of
this chapter.
(2) The EPA shall furnish to States with approved programs
the information in its files which the State needs to implement
its approved program. Any such information submitted to EPA
under a claim of confidentiality will be subject to the
conditions 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 of this part.
70.5 Permit applications.
(a) Duty to apply. Any person who owns or operates a Part
70 source required to have a permit under this part shall submit
a timely and complete permit application in accordance with this
section. For a source applying for a Part 70 permit for the
first time, a timely application is one that is submitted 12
months after the source becomes subject to the permit program or
such earlier date as the permitting authority may establish. For
purposes of a permit renewal, where a State in its program
approval has not met either 70.4(b)(10)(i) or (ii) of this
part, a timely application is one that is submitted 18 months
prior to the date of permit expiration, or such other time as may
be approved by the Administrator. The Administrator shall
approve a corresponding reduction in the 18 months requirement if
the permitting authority is required to issue Part 70 permits for
terms less than 5 years or to act on Part 70 permits in less than
18 months, except that in no event shall a time less than 6
months before permit expiration be approved.
(b) Standard application form and required information.
The State program under this part shall provide for a standard
application form or forms. The permitting authority may use its
discretion in developing application forms that best meet program
needs and administrative efficiency, but the forms and
attachments chosen shall include, as a minimum, the key elements
specified below:
(1) General company information, including company name and
address (or plant name and address if different from the company
name), owner's name and agent, plant site manager/contact.
(2) A plant description in terms of the processes and
products (including identification by Standard Industrial
Classification Code).
(3) The following emissions related information:
(i) All emissions of regulated pollutants and all emissions
of pollutants subject to regulation for which the source is
major.
(ii) Identification and description of all emissions points
in sufficient detail to establish the basis for fees and
applicability of requirements of the Act.
(iii) Emissions rates in total tons per year and in such
other terms as are necessary to establish compliance consistent
with the applicable standard reference test method.
(iv) Fuels, fuel use, and raw materials used.
(v) Identification and description of air pollution control
equipment.
(vi) Limitations on source operation affecting emissions or
any work practice standards, where applicable for all pollutants
regulated at the Part 70 source.
(vii) Other information required by any applicable
requirements (including information related to stack height
limitations developed pursuant to section 123 of the Act), such
as the location of emissions units, flow rates, building
dimensions, and stack parameters (including height, diameter, and
plume temperature) for all pollutants regulated at the Part 70
source, except for VOC's.
(viii) Calculations on which the above items are based.
(4) The following air pollution control requirements:
(i) Citation and description of applicable State and
Federal air pollution control requirements, including
requirements that will become effective during the term of a
permit, if such requirement has been promulgated at the time of
permit application.
(ii) Description of any applicable test method for
determining compliance with each requirement.
(5) Such other information, specific to particular program
requirements of the Act, as may be necessary to implement and
enforce those other requirements of the Act.
(6) Additional information as necessary to define
reasonably anticipated alternative operating scenarios, which
must be included in the Part 70 permit.
(7) A compliance plan for sources that are not in
compliance with all applicable requirements. With respect to the
requirements for which the source is not in compliance, such a
compliance plan shall include the following:
(i) A description of how those requirements under the Act
will be achieved.
(ii) A description of the compliance status of the source
with respect to such requirements.
(iii) A schedule of compliance that includes a schedule of
measures, including an enforceable sequence of actions with
milestones, leading to compliance with all such requirements of
the Act. The 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.
(iv) A schedule for submission of certified progress
reports no less frequently than every 6 months or such other
shorter period as specified in the underlying applicable
requirement.
(v) An explanation of any proposed exemptions from
otherwise applicable air pollution control requirements.
(vi) 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 under
Title IV of the Act, except as specifically superseded by Part 72
of this chapter, with regard to the schedule and method(s) the
source will use to achieve compliance with the acid rain
emissions limitations.
(8) Requirements for compliance certification, including
the following:
(i) A certification of compliance by a responsible official
consistent with paragraph (b)(10) of this section that addresses
all air pollution control requirements applicable to the source,
except, in the case of an affected source under the acid rain
program, the designated representative of the source shall make
this certification.
(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
for such other shorter period as specified by the underlying
applicable requirement.
(iv) A statement that the source is in compliance with any
applicable enhanced monitoring and compliance certification
requirements of the Act.
(9) The use of nationally standardized forms for acid rain
portions of permit applications and compliance plans, as required
by Part 72 of this chapter.
(10) Any application form, report, or compliance
certification submitted pursuant to regulations under this part
shall require certification by a responsible official of truth,
accuracy, and completeness. This certification and any other
certification required under this part shall state that, to the
best of the signer's knowledge, information and belief formed
after reasonable inquiry, the statements and information in the
document are true, accurate, and complete.
(c) Completeness determination. 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 necessary pursuant to paragraph (b)
of this section to begin to process the application for the
particular source. This information must be sufficient to
evaluate the subject source and determine applicable regulatory
requirements. The program shall require that a responsible
official certify the submitted information consistent with
paragraph (b)(10). Unless a determination that an application is
not complete is made by the permitting authority within 30 days
of receipt of the application, an application shall be deemed to
be complete. If, during the processing of an application after
it has been determined to be complete, the reviewing authority
determines that additional information is necessary in order to
evaluate or take final action on that application, such
information may be requested in writing from the source. The
source's ability to continue operation without a permit as set
forth in 70.7(b) of this part shall remain in effect from the
time that the permitting authority determines that the
application is complete until the final permit is issued, as long
as the applicant submits such requested additional information by
the deadline specified by the permitting authority.
(d) Duty to supplement or correct application. If the
applicant becomes aware that he failed to submit any relevant
facts or submitted incorrect information in a permit application,
he shall promptly submit such supplementary facts or corrected
information.
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 are applied to
assure compliance with all applicable requirements of the Act,
including the requirements of the applicable implementation plan
as are necessary to ensure compliance with applicable
requirements of the Act, at the time of permit issuance.
(i) The permit shall specify and reference the origin of
and authority for each requirement incorporated therein, and
identify any difference in form as compared to the regulation
upon which the limit or requirement is based.
(ii) The permit shall state that where another applicable
requirement of the Act is more stringent than any applicable
requirement of Parts 72 through 79 of this chapter, both
provisions shall be incorporated into the permit and shall be
federally-enforceable.
(2) Permit duration. The permitting authority shall issue
permits for a fixed term of 5 years in the case of affected
sources under Title IV of the Act, and for a term not to exceed 5
years in duration 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 section 129(e) of the Act for a period
not to exceed 12 years and review such permits no less often than
every 5 years. Permit requirements shall not remain in effect
where inconsistent with State law or as provided in Part 72 of
this chapter for the acid rain portions of a permit.
(3) Monitoring and related recordkeeping and reporting
requirements:
(i) The permit shall set forth monitoring, recordkeeping,
and reporting requirements that are required to assure compliance
with requirements of the Act that are applicable to the source,
including those implementing Parts 72 through 79 of this chapter.
Such requirements shall assure use of consistent terms, test
methods, units, averaging periods, and other statistical
conventions consistent with the applicable emissions limitations,
standards, and other requirements contained in the permit.
(ii) To meet the requirements of paragraph (a)(3)(i) of
this section with respect to monitoring, the permit shall:
(A) Incorporate all applicable emissions monitoring and
analysis procedures or test methods required under the Act,
including any procedures and methods promulgated pursuant to
section 504(b) or 114 of the Act.
(B) Specify required monitoring including type, intervals,
and frequency sufficient to yield data that are representative of
the monitored activity.
(C) The permit shall, as necessary, specify requirements
concerning the proposed use, maintenance, and, when appropriate,
installation of monitoring equipment or methods.
(iii) To meet the requirements of paragraph (a)(3)(i) of
this section with respect to recordkeeping, the permit shall
require the following:
(A) Records of 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 which performed the analyses.
(4) The analytical techniques or methods used.
(5) The results of such analyses.
(B) A record of changes made at the source that result in
emissions of a regulated pollutant subject to an applicable
requirement, but not otherwise regulated under the permit and the
emissions resulting from those changes.
(C) The permittee to retain records of all 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.
(iv) To meet the requirements of paragraph (a)(3)(i) of
this section with respect to reporting, the permit shall:
(A) Require reports of any required monitoring to be
submitted no less often than 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(b)(10) of this part.
(B) Require prompt reporting of deviations from permit
requirements including those attributable to upset conditions as
defined in the permit, the cause of such or deviations, and any
corrective actions or preventive measures taken.
(4) A condition prohibiting emissions exceeding any
allowances that the source lawfully holds under the acid rain
program, pursuant to Title IV of the Act.
(i) No permit revision shall be required for increases in
emissions that are authorized by allowances acquired pursuant to
the acid rain program and that do not violate any other permit
term or condition.
(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 requirement under
the Act.
(iii) Any such allowance shall be accounted for according
to the procedures established in Parts 72 through 79 of this
chapter.
(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) Duty to comply. The permittee must comply with all
conditions of this 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) Permit actions. This permit may be modified, revoked
and reissued, or terminated for cause. The filing of a request
by the permittee for a permit modification, revocation and
reissuance, or termination, or a notification of planned changes
or anticipated noncompliance does not stay any permit condition.
(iv) Property rights. This permit does not convey any
property rights of any sort, or any exclusive privilege.
(v) Duty to provide information. 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 by the permit to be kept.
(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 of this part.
(8) Emissions trading. A provision stating that no permit
revision shall be required for increases in emissions allowed
through emissions trading to the extent such trades are
authorized by the applicable requirements of the Act, including
any applicable implementation plan.
(b) Federally-enforceable requirements. All applicable
requirements under the Act in a Part 70 permit are enforceable by
the United States and citizens under the Act. The State
permitting authority shall specifically designate as not
federally enforceable any State provisions in the permit which
are more stringent than the applicable requirements under the
Act.
(c) Compliance requirements. All Part 70 permits shall
contain the following elements with respect to compliance:
(1) Requirements for monitoring and analysis of pollutants
regulated under the Act, including any prescribed by rule by the
Administrator, sufficient to determine if each emissions unit of
the source complies with any applicable emission limits,
standards or requirements. States may establish testing
requirements based on level of emissions expected, testing of
similar units, likelihood of noncompliance, or other criteria
submitted to and approved by the Administrator.
(2) Compliance certification, 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 or, for requirements under Title IV of the
Act a designated representative, of the permittee consistent with
70.5(b)(10) of this part.
(3) Inspection and entry requirements 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 (including an
authorized contractor acting as a representative of the
Administrator), to perform the following:
(i) Enter upon the permittee's premises where a regulated
facility or activity is located or 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 control equipment), practices, or
operations regulated or required under the permit.
(iv) Sample or monitor at reasonable times, for the
purposes of assuring permit compliance or as otherwise authorized
by the Act, any substances or parameters at any location.
(4) For sources covered by 70.5(b)(7) of this part, a
schedule of compliance.
(5) For sources covered by 70.5(b)(7) of this part,
progress reports consistent with an applicable schedule of
compliance to be submitted no less frequently than semiannually,
or such other more frequent period as specified in the underlying
applicable regulation and contain the following:
(i) Required and actual dates for achieving the activities,
milestones, or compliance required by the schedule of compliance.
(ii) Where appropriate, an explanation of why any deadlines
were not met, and any preventive or corrective measures adopted.
(6) Requirements for compliance certification with
applicable requirements relevant to the source, including
emission limitations, standards, or work practices. Permits
shall include:
(i) The frequency (not less than annually or such more
frequent periods as specified in the underlying requirement) of
submissions of certifications.
(ii) A means for assessing or monitoring the compliance of
the source with its emissions limitations, standards, and work
practices.
(iii) A requirement that the compliance certification
describe the following:
(A) The applicable requirements that are the basis of the
certification.
(B) The current compliance status.
(C) Whether compliance was continuous or intermittent.
(D) The methods used for determining compliance, currently
and over the reporting period, and whether the method used is the
test method for initial compliance or a means for determining
continuing compliance.
(E) Such other factors as the permitting agency may
require.
(iv) A requirement that all compliance certifications
showing noncompliance be submitted to EPA as well as the
permitting authority.
(v) Such additional requirements as may be specified
pursuant to section 114(a)(3) of the Act.
(7) Such other provisions as the permitting authority may
require.
(d) Flexible source operation. (1) The permitting
authority shall issue permits that allow changes to a Part 70
source without requiring a permit revision before the source
makes such changes, if those changes are not modifications under
any provision of Title I of the Act, and do not exceed the
emissions allowable under the permit, whether expressed therein
as a rate of emissions or in terms of total emissions for any
timeframe addressed in the permit.
(2) If a Part 70 source wishes to make a change that would
increase any emission above a level allowed in the permit, and
such change is not a modification under any provision of Title I
of the Act and would not be prohibited by any applicable
requirement under the Act, then the source shall be required to
revise its permit pursuant to procedures established by the
State. Such procedures may provide for maximum operating
flexibility, provided they meet the requirements set forth under
70.7(f).
(3) The permitting authority shall meet the requirement
contained in paragraph (d)(1) of this section by the following.
(i) Issuing a permit that would identify reasonably
anticipated operating scenarios provided by the source as long as
each such operating scenario is not prohibited by applicable
requirements under the Act. This shall include the
identification of all applicable emissions limitations,
standards, other requirements and prohibitions that would apply
to each emissions unit, so as to ensure enforceability under each
scenario. Any changes, including emissions increases, which are
included in such reasonably anticipated scenarios, shall be
allowed without requiring a permit revision.
(ii) For pollutants regulated at the source, allowing
changes in the operation of a facility which are not included in
the permit as a reasonably anticipated operating scenario that
would not increase either the rate of emissions or total
emissions beyond what are allowed under any timeframe addressed
by the permit. For any such change, the source shall provide the
permitting authority and EPA with 7 calendar days advance written
notification. Such notification shall describe the proposed
changes, including changes in emissions, and any requirements
that would be applicable as a result of the changes.
(iii) Not allowing changes that would constitute
modifications or reconstructions under sections 110, 111, or 112
under the Act without requiring a permit revision pursuant to
70.7 of this part, or requirements under the acid rain program
without appropriate review under those programs and permit
revision procedures under this section.
(iv) Neither notification nor permit revision is required
for changes at the source that are allowed for and regulated by
the permit, or that are not regulated or prohibited by the
permit.
(v) Accomplishing the timely update of the Part 70 permit
pursuant to the same procedures for processing administrative
permit amendments contained in 70.7(e) of this part.
(e) Reopenings. Each permit shall address reopenings,
consistent with the requirements of 70.7(g) of this part.
(f) General permits. The permitting authority may, after
notice and opportunity for public hearing, issue a general permit
covering numerous similar sources. Any general permit shall
comply with all requirements applicable to conventional Part 70
permits. Any source covered by a general permit must apply to
the permitting authority for use of the general permit. General
permits shall not be authorized for affected sources under the
acid rain program unless otherwise provided in Parts 72 through
79 of this chapter.
(g) 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 such
permit shall be issued unless it meets the following conditions:
(1) It contains conditions that will assure compliance with
all applicable requirements of the Act at all authorized
locations.
(2) It contains a requirement that the owner or operator
notify the permitting authority at least 20 days in advance of
each change in location.
(3) It contains conditions that will assure compliance with
all other provisions of this section.
(4) It does not address any affected source under Title IV
of the Act.
(h) Permit shield. (1) The permitting authority may
provide that compliance with the Part 70 permit shall be deemed
compliance with other applicable provisions of the Act if, for
each such provision, either of the following conditions is met:
(i) The permit includes all the applicable requirements of
such provisions.
(ii) The permitting authority in acting on the permit
application makes a determination relating to the permittee that
the specified provisions referred to in such determination 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 subsection 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.
(iv) The ability of EPA to obtain information from a source
pursuant to section 114 of the Act.
(i) Property limitation. The issuance of a permit
does not convey any property rights of any sort, or any exclusive
privilege.
70.7 Permit issuance, renewal, reopenings, operational
flexibility and revisions.
(a) Action on Application. (1) A permit modification,
renewal, or reopening may be issued only if all of the following
conditions apply:
(i) The permitting authority has received a complete
application for a permit, except that a complete application need
not be received before issuance of a general permit under
70.6(f) of this Part.
(ii) The permitting authority has complied with the public
participation procedures for permit issuance specified in
paragraph (i) of this section.
(iii) The conditions of the permit provide for compliance
with the applicable requirements of the Act, and regulations
promulgated under Act.
(iv) The Administrator has received a copy of the permit
and any notices required under s 70.8(a) and 70.8(b) of this
part, and has not objected to issuance of the permit under
70.8(c) of this part within the time period specified therein.
(2) Except as provided under the initial transition plan
provided for under 70.4(b)(11) of this part or in Parts 71 and
72 of this chapter 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 request for permit modification or renewal) within 18
months after receiving a complete application.
(3) The program shall also contain reasonable procedures to
prioritize 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 provides an applicant a notice of
incompleteness (outlining additional information requirements,
within 30 days of receipt of an application, the application
shall be deemed complete.
(5) The permitting authority shall develop 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 any other person expressing an interest.
(6) The submittal of a complete application shall not affect
the requirement that any source have a preconstruction permit
under sections 110, 165, 172, or 173 of the Act.
(b) Requirement for a permit. (1) Except as provided in
the following sentence, 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 permit program approved under this
part or Part 71 of this chapter. The program shall provide that
if a Part 70 source submits a timely and complete application for
permit issuance (including for modification or 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 paragraph (b)(1)(i)
through (iii) of this section.
(i) This protection shall cease to apply if the applicant
fails to submit by the deadline specified by the permitting
authority any additional information needed to process the
application and requested in writing by the permitting authority
subsequent to the completeness determination made pursuant to
paragraph (a)(4) of this section to process the application.
(ii) This process shall not affect the requirement that any
source have a preconstruction permit under sections 110, 165,
172, or 173 of the Act.
(2) The protection provided by paragraph (b)(1) of this
section to operate without a permit shall also apply if the
application or requested additional information is submitted less
than 3 months after the required submittal date. Nothing in this
paragraph shall be deemed to prevent the permitting authority or
EPA from bringing an enforcement action and assessing penalties
against a source for failing to submit a timely application. In
such case, penalties may be assessed for the entire period from
the time the application was required to be submitted to the time
a complete application was actually submitted.
(3) The protection provided by paragraph (b)(1) of this
section to operate without a permit shall also apply if the
source submits a timely application and if the permitting
authority determines it to be incomplete despite good faith
effort on the part of the source; provided that the source cures
the defect during an expeditious time period specified by the
permitting authority. Nothing in this paragraph shall be
construed to limit the exception to such protection that is set
forth in the introductory text of paragraph (b)(1) of this
section.
(c) Permit renewal and expiration. The program shall
provide the following:
(1) Permits being renewed are subject to the same
procedural requirements, including those for public participation
and Federal oversight, that apply to initial permit issuance.
(2) Permit expiration terminates the source's right to
operate unless a timely and complete renewal application is
submitted consistent with paragraph (b) of this section.
(d) Permit modifications. (1) A permit modification
includes any proposed revision to address a change at the source,
including monitoring, that would constitute a modification under
any provision of Title I of the Act, as provided in 70.2(c)(5).
(2) Notwithstanding 70.6(d) of this part, and paragraph
(e) of this section, any relaxation in the reporting requirements
or to milestones with the schedule of compliance for a
noncomplying source in the current version of the Part 70 permit
are subject to paragraph 70.7(d) as a permit modification.
(3) Permit modifications shall be subject to the same
procedural requirements, including those for public comment and
Federal oversight, as original permit issuance, except that the
required review shall cover only the proposed changes rather than
the unchanged activities of the permittee. Nothing in this
provision shall limit the authority of the permitting authority
or EPA under paragraphs (g) and (h) of this section.
(e) Administrative permit amendments. An Administrative
permit amendment shall be made by the permitting authority
administratively and consistent with the requirements of
paragraph (f)(3) of this section without being subject to advance
notification or the procedural requirements applicable to a
permit modification. The principles governing what constitutes
administrative or minor permit amendments for purposes of the
acid rain portion of permit shall be governed by Part 72 of this
chapter.
(f) Minor permit amendments. (1) Applicability. The
permitting authority may treat any proposed revision to a Part 70
permit as a minor permit amendment in accordance with this
subsection if the proposed revision:
(i) Does not constitute a modification under any provision
of Title I of the Act; and
(ii) Complies with all applicable requirements of the Act
relevant to the source.
(2) Notice. (i) At least 7 calendar days before making
the proposed change, the source applicant shall submit a notice
to the permitting authority and the Administrator. The
permitting authority may provide in its regulation a different
timeframe for notices involving emergencies.
(ii) Such notification shall describe the proposed changes,
including changes in emissions, any requirements that would be
applicable as a result of the changes, and the revised permit
language under which the source proposes to operate.
(iii) The source may implement the proposed change unless
the permitting authority notifies the source within the period
for prior notice, established pursuant to 70.7(f)(2)(i), that the
proposed change does not qualify as a minor permit amendment or
would not meet all applicable requirements of the Act. In the
event that the source fails to demonstrate to the satisfaction of
the permitting authority that the proposed change qualifies for
processing as a minor amendment under this paragraph, the
proposed change shall be processed as a permit modification under
the procedures set forth in paragraph (d) of this section. In
such event the change shall not occur until the permit is revised
following the EPA review period.
(3) Permit revision. (i) The permitting authority shall
take no more than 60 days from receipt of the notice required in
paragraph (f)(2) of this section to revise the part 70 permit and
may use administrative procedures to incorporate the changes
comprising the minor permit amendment, 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
revisied permit to the Administrator and make it readily
available at the offices of the permitting authority.
(g) Reopening for cause. (1) Each issued permit shall
include provisions addressing the conditions for revision prior
to the expiration of the permit. Such revisions shall be made as
expeditiously as practicable. Reopenings shall be performed for
the following reasons:
(i) Additional requirements under the Act become applicable
to a major Part 70 source and for which 3 or more years remain on
the original term of the permit. Such revisions shall be made
not later than 18 months after the promulgation of relevant
standards or regulations. No such revision is required if the
effective date of the requirement is later than the date on which
the permit is due to expire.
(ii) Additional requirements (including excess emissions
requirements) become applicable to an affected source under the
acid rain program. Excess emissions offset plans shall be deemed
to be incorporated into the permit upon approval by the
Administrator.
(iii) The permitting authority or EPA determines that the
permit contains a material mistake made in establishing the
emissions standards or limitations, or other requirements of the
permit.
(iv) The EPA determines that the permit must be revised to
assure compliance with the applicable requirements of the Act.
(2) The permitting authority shall terminate, modify, or
revoke and reissue permits for cause.
(3) Proceedings to reopen 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.
(4) Reopenings under paragraph (g)(1)(i) of this section
shall not be initiated before a notice of such intent is provided
to the affected 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.
(5) The permitting authority shall reopen a Part 70 permit
pursuant to this 70.7(g) whenever the permitting authority or
the Administrator determine that any permit revision accomplished
pursuant to 70.7(f) does not assure compliance with all
applicable requirements of the Act or did not qualify for
processing under 70.7(f).
(h) 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 (g) of this section, the
Administrator shall notify the permitting authority and the
permittee of such finding in writing.
(2) The permitting authority shall, within 90 days after
receipt of 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 shall review the proposed
determination from the permitting authority within 90 days of
receipt. The permitting authority shall have 90 days from
receipt of an EPA objection to resolve any objection that EPA
makes.
(4) If the permitting authority fails to submit a proposed
determination pursuant to paragraph (h)(2) of this section or
fails to resolve any objection pursuant to paragraph (h)(3) of
this section, the Administrator shall 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 paragraph (h)(1), (2) and (3) of
this section.
(ii) Providing the permittee an opportunity for comment on
the Administrator's proposed action and for a hearing, which
shall be held after exhaustion of the procedures in paragraphs
(h)(1), (2) and (3) of this section.
(5) The EPA's decision to terminate, modify or revoke and
reissue the permit shall constitute final action for purposes of
judicial review under section 307 of the Act.
(i) Public participation in permit issuance. All permit
issuance proceedings, including renewals, modifications, and
reopenings, shall provide an opportunity for public participation
on the draft proposed permit. The State shall develop such
procedures after considering the requirements of Part 124 of this
chapter and the adopted procedures shall at a minimum include the
following:
(1) Availability for public inspection in at least one
location in the community in which the source is located of the
information submitted by the applicant, and the permitting
authority's analysis of the proposed action as set forth in the
statement of basis.
(2) A public notice, by advertisement in the area affected,
of the opportunity for submittal of public comment and for a
public hearing with a copy of the notice to the Administrator,
unless EPA agrees not to require the notice for some or all
permits.
(3) A period of no less than 30 days for submittal of
public comments.
(4) A public hearing, as deemed appropriate by the
permitting authority because a request for such has been made
that raises significant issues affecting the terms and conditions
of the permit and such hearing would contribute to the permitting
exercise.
(5) Such notice and opportunity for participation by other
States as is provided for by 70.8 of this chapter.
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
shall provide, or require the applicant to provide, to the
Administrator a copy of each permit application, including the
compliance plan, and each proposed permit and final permit. If
the permitting authority and Administrator so agree, the
permitting authority may submit to the Administrator a permit
application summary form and any relevant portion of the permit
application or compliance plan, in place of such full application
and compliance plan specified in this paragraph.
(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) At the time of approval of a State program pursuant to
this Part.
(ii) By regulation.
(3) Any 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) Affected State review. (1) The program shall provide
that the permitting authority give notice of each draft proposed
permit to any affected State on or before the time that the
permitting authority provides this notice to the public under
70.7(i) of this part.
(2) The program shall provide that the permitting
authority, as part of the submittal of the proposed permit to the
Administrator, 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 comment period. The
notice shall include the permitting authority's reasons for not
accepting any such recommendation.
(c) EPA objection. (1) The Administrator shall object,
pursuant to section 505(b) of the Act, to the issuance of any
proposed permit determined by the Administrator not to be in
compliance with applicable requirements of the Act including
requirements of the applicable implementation plan. No permit
shall be issued for the purpose of Part 70 if the Administrator
objects to its issuance in writing within 45 days of receipt of
the proposed permit and notice pursuant to paragraphs (a) and (b)
of this section.
(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 shall 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) Submit the required items and notices under paragraphs
(a) or (b) of this section.
(ii) Submit any information necessary to adequately review
the proposed permit.
(4) If the permitting authority fails, within 90 days after
the date of an objection under paragraph (c)(1) of this section,
to submit a proposed permit revised to meet the objection, the
Administrator shall issue or deny the
permit in accordance with the requirements of Part 71 of this
chapter. If the permitting authority submits a revised permit
within this time period that only partially meets the
Administrator's objection, the Administrator may grant further
time for revision of the permit, not to exceed an additional 90
days.
(d) Public petitions to the Administrator. The program
shall provide that if the Administrator does not object in
writing pursuant to 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 take such action.
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(i) of this part, 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. A petition for review does
not stay the effectiveness of the permit or its requirements. If
EPA objects to the permit as a result of petition filed pursuant
to this paragraph, the permitting authority shall suspend the
permit until EPA's objection has been resolved.
(e) Prohibition on default issuance. Consistent with
70.4(b)(3)(ix) of this part, 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 permit 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, affected States, or both.
70.9 Fee determination and certification.
(a) Fee Requirement. (1) The program shall require that
the owners or operators of sources subject to the requirement to
obtain a permit under this part pay an annual fee, or the
equivalent over some other period, sufficient to cover all
reasonable direct and indirect costs of developing and
administering the permit program. Procedures for determining
this sum are set forth in this section.
(2) The State shall provide that the revenue generated from
permit fees will be used solely to support the reasonable cost of
the development and implementation of the air pollution control
program in all areas relevant to the permit program, including
support of local agencies that do not issue permits directly, but
that support permit issuance or enforcement.
(b) Fee schedule adequacy. The State program shall
establish a fee schedule that meets either of the following
tests:
(1) Program support test. The fee program shall result in
the collection and retention of revenues sufficient to support
the reasonable direct and indirect costs of developing and
implementing the permitting program (considering any associated
overhead charges for personnel, equipment, buildings, and
vehicles), including but not limited to the following activities:
(i) Reviewing and acting on any application for a permit or
permit revision.
(ii) Implementing and enforcing the terms of any Part 70
permit, (not including any court costs or other costs associated
with any formal enforcement action).
(iii) Emissions and ambient monitoring, including adequate
resources to audit and inspect source-operated monitoring
programs.
(iv) Preparing generally applicable regulations, or
guidance.
(v) Modeling, analyses, or demonstrations.
(vi) Preparing inventories and tracking emissions.
(vii) Providing support to Part 70 sources under the Small
Business Stationary Source Technical and Environmental Compliance
Assistance Program contained in section 507 of the Act.
(2) Cost-per-ton test. The fee program shall result in the
collection and retention, from all sources subject to the
permitting program, of an amount not less than $25 per ton in the
aggregate, as adjusted pursuant to the criteria set forth in
paragraph (c) of this section, of each regulated pollutant that
the Part 70 sources emit.
(i) For the purposes of determining the required minimum
fee amount, carbon monoxide shall be excluded from the definition
of "regulated pollutant."
(ii) In determining the required minimum fee amount, the
permitting authority is not required to include any amount of a
regulated pollutant that:
(A) The Part 70 source emits in excess of four thousand
(4,000) tons per year of that regulated pollutant:
(B) The emissions of such pollutant are otherwise regulated
and already included in the fees owed by the Part 70 source.
(iii) For those regulated pollutants emitted by Part 70
sources, but to which no State or Federal air pollution control
requirements are applicable, the emissions fee requirements
contained in this section remain applicable. The plan may, at
the State's discretion, include criteria (such as de minimis
amounts) to exclude any such emissions of regulated pollutants
from the fee requirement, to the extent that such exemptions are
consistent with the resource adequacy determination required by
70.4(b)(7) of this part.
(iv) For the purpose of determining the total tons of
regulated pollutants that the Part 70 sources in the State emit,
the State shall base its calculation on the actual emissions of
each regulated pollutant.
(v) Nothing in the cost-per-ton provisions of this
paragraph shall restrict a permitting authority from collecting
more or less than the amount determined under this paragraph from
any one Part 70 source or any class or category of Part 70
sources, as determined by the permitting authority, provided the
permitting authority collects a total amount of fees sufficient
to meet the program support requirements of paragraph (b)(1) of
this section. For example, States may reduce fee amounts for
small businesses as authorized by section 507(f) of the Act.
(c) Fee adjustment. (1) The program shall provide that
the fees collected pursuant to this section shall be increased
(consistent with the need to cover reasonable costs) in December
of each year by the percentage, if any, by which the Consumer
Price Index for that calendar year exceeds the Consumer Price
Index for the calendar year 1989.
(i) 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.
(ii) The revision of the Consumer Price Index which is most
consistent with the Consumer Price Index for the calendar year
1989 shall be used.
(2) The Administrator reserves the right to adjust the fees
required pursuant to this test upward if significant amounts of
toxic pollutants are subject to permit review.
(d) 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 satisfy the applicable tests specified in
paragraphs (a) and (b) of this section. The Administrator will
not approve a demonstration pursuant to paragraph (b) of this
section unless it contains an initial accounting (and periodic
updates as required by the Administrator) of how fee revenues are
used 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. 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 of this part, or if an interim approval expires and the
Administrator has not approved a whole Part 70 program.
(1) At any time the Administrator may apply any one of the
sanctions specified in section 179(b) of the Act.
(2) Within 18 months after the date required for submittal
or the date of disapproval by the Administrator, the
Administrator shall 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.
The Administrator shall promulgate a whole program or a
partial program as appropriate for such State if full approval of
a whole Part 70 program has not taken place within 2 years after
the date required for such submission.
(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
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
shall notify the authority of the determination and the reasons
therefore. The Administrator shall publish such notice in the
Federal Register.
(2) If, after 90 days from issuing the notice under
paragraph (b)(1) of this section, the permitting authority fails
to take action to assure adequate administration and enforcement
of the program, the Administrator may take any one or more of the
following actions:
(i) Withdraw approval of the program or portion thereof
using procedures consistent with 70.4(e) of this part.
(ii) Apply any of the sanctions specified in section 179(b)
of the Act.
(iii) Promulgate, administer, or enforce a program or
partial program.
(3) Whenever the Administrator has made the finding and
issued the notice under paragraph (b)(1) of this section, the
Administrator shall apply the sanctions under section 179(b) of
the Act within 18 months after that notice. These sanctions
shall 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 (b)(1) of this section, the
Administrator shall, unless the State has corrected such
deficiency within 18 months after the date of such finding,
promulgate a whole or partial program within 2 years of the date
of such finding.
(5) If the permitting authority's failure is a failure to
act on one or more timely and complete applications (including
renewal applications) within 18 months of the date that a
complete application was filed, the Administrator may issue or
deny the permits as appropriate.
(6) Nothing in this section shall limit the Administrator's
authority to take any enforcement action against a source for
violations of the Act or a permit issued under rules adopted
pursuant to this section in a State that has been delegated
responsibility by EPA to implement a Part 71 program.
(c) Criteria for withdrawal of State programs. (1) The
Administrator may withdraw program approval when 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 the following:
(i) Where the permitting authority's legal authority no
longer meets the requirements of this part, including the
following:
(A) Failure of the permitting authority to promulgate or
enact new authorities when necessary.
(B) Action by a State legislature or court striking down or
limiting State authorities.
(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 70.7(i) of this part.
(D) Failure to collect, retain, or allocate fee revenue
consistent with 70.9 of this part.
(iii) Where the enforcement program fails to comply 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 or to
collect administrative fines when imposed.
(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 of this part, or if the
Administrator makes a determination under paragraph (b)(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 from
Part 71 sources or Part 70 sources or both 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 of this part.
70.11 Requirements for enforcement authority.
All programs in order to be approved under this part must
contain the following provisions:
(a) Any agency administering a program shall have available,
as remedy for violations of program requirements, the following
authority:
(1) To restrain immediately and effectively any person by
order or by suit in court from engaging in any activity in
violation of a permit and which is presenting an imminent and
substantial endangerment to the public health or welfare, or the
environment.
(2) To sue in courts with jurisdiction 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 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 a day for each 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 standards or limitations;
any permit condition; or any fee or filing requirement. These
fines shall be recoverable in a maximum amount of not less than
$10,000 a day for each violation
(iii) Criminal fines shall be recoverable against any
person who knowingly makes any false statement, representation or
certification in any form, in any notice or report required by a
permit, or who knowingly renders inaccurate any monitoring device
or method required to be maintained by the permitting authority.
These fines shall be recoverable in a maximum amount of not less
than $10,000 for each instance of violation.
(b) (1) The civil penalty or criminal fine(s) [as provided
in paragraph (a)(3) of this section] shall be assessable for each
instance of violation and, if the violation is continuous, shall
be assessable up to the maximum amount for each day of violation.
(2) 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 required under the Act.
(c) A civil penalty 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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