PART 70 OPERATING PERMIT REGULATIONS
PROPOSED CHANGES
July 8, 1994
REDLINE/STRIKEOUT VERSION OF PART 70
(Note: Material enclosed by parentheses and designated as
"Option" sets forth alternative proposal regarding revision of permit
terms that prescribe monitoring or recordkeeping procedures)
PART 70 - STATE OPERATING PERMIT PROGRAMS
70.1 Program overview.
70.2 Definitions.
70.3 Applicability.
70.4 State program submittals and transition.
70.5 Permit applications.
70.6 Permit content.
70.7 Permit issuance, renewal, reopenings, and revisions.
70.8 Permit review by the EPA and affected States.
70.9 Fee determination and certification.
70.10 Federal oversight and sanctions.
70.11 Requirements for enforcement authority.
Authority: 42 U.S.C. 7401, et seq.
70.1 Program overview.
(a) The regulations in this part provide for the establishment
of comprehensive State air quality permitting systems consistent with
the requirements of title V of the Clean Air Act (Act) (42 U.S.C.
7401, et seq.). These regulations define the minimum elements
required by the Act for State operating permit programs and the
corresponding standards and procedures by which the Administrator will
approve, oversee, and withdraw approval of State operating permit
programs.
(b) All sources subject to these regulations shall have a permit
to operate that assures compliance by the source with all applicable
requirements. While title V does not impose substantive new
requirements, it does require that fees be imposed on sources and that
certain procedural measures be adopted especially with respect to
compliance.
(c) Nothing in this part shall prevent a State, or interstate
permitting authority, from establishing additional or more stringent
requirements not inconsistent with this Act. The EPA will approve
State program submittals to the extent that they are not inconsistent
with the Act and these regulations. No permit, however, can be less
stringent than necessary to meet all applicable requirements. In the
case of Federal intervention in the permit process, the Administrator
reserves the right to implement the State operating permit program, in
whole or in part, or the Federal program contained in regulations
promulgated under title V of the Act.
(d) The requirements of part 70, including provisions regarding
schedules for submission and approval or disapproval of permit
applications, shall apply to the permitting of affected sources under
the acid rain program, except as provided herein or modified in
regulations promulgated under title IV of the Act (acid rain program).
(e) Issuance of State permits under this part may be coordinated
with issuance of permits under the Resource Conservation and Recovery
Act and under the Clean Water Act, whether issued by the State, the
U.S. Environmental Protection Agency (EPA), or the U.S. Army Corps of
Engineers.
70.2 Definitions.
The following definitions apply to part 70. Except as
specifically provided in this section, terms used in this part retain
the meaning accorded them under the applicable requirements of the
Act.
"Act" means the Clean Air Act, as amended, 42 U.S.C. 7401, et
seq.
"Affected source" shall have the meaning given to it in the
regulations promulgated under title IV of the Act.
"Affected States" are all States:
(1) Whose air quality may be affected and that are contiguous to
the State in which a part 70 permit, permit modification revision or
permit renewal is being proposed; or
(2) That are within 50 miles of the permitted source.
"Affected unit" shall have the meaning given to it in the
regulations promulgated under title IV of the Act.
"Applicable requirement" means all of the following as they apply
to emissions units in a part 70 source (including requirements that
have been promulgated or approved by EPA through rulemaking at the
time of issuance but have future-effective compliance dates):
(1) Any standard or other requirement provided for in the
applicable implementation plan approved or promulgated by EPA through
rulemaking under title I of the Act that implements the relevant
requirements of the Act, including any revisions to that plan
promulgated in part 52 of this chapter;
(2) Any requirement enforceable by the Administrator and by
citizens under the Act that limits emissions for purposes of creating
offset credits or for complying with or avoiding applicability of
applicable requirements;
(2)(3) Any term or condition of any preconstruction permits
issued pursuant to regulations approved or promulgated through
rulemaking under title I, including parts C or D, of the Act;
(3)(4) Any standard or other requirement under section 111 of
the Act, including section 111(d);
(4)(5) Any standard or other requirement under section 112 of
the Act, including any requirement concerning accident prevention
under section 112(r)(7) of the Act;
(5)(6) Any standard or other requirement of the acid rain
program under title IV of the Act or the regulations promulgated
thereunder;
(6)(7) Any requirements established pursuant to section 504(b)
or section 114(a)(3) of the Act;
(7)(8) Any standard or other requirement governing solid waste
incineration, under section 129 of the Act;
(8)(9) Any standard or other requirement for consumer and
commercial products, under section 183(e) of the Act;
(9)(10) Any standard or other requirement for tank vessels,
under section 183(f) of the Act;
(10)(11) Any standard or other requirement of the program to
control air pollution from outer continental shelf sources, under
section 328 of the Act;
(11)(12) Any standard or other requirement of the regulations
promulgated to protect stratospheric ozone under sections 608 or 609
of title VI of the Act, unless the Administrator has determined that
such requirements need not be contained in a title V part 70 permit,
and any standard or other requirement under any other section(s) of
title VI of the Act that the Administrator determines should be
contained in a part 70 permit,; and
(12)(13) Any national ambient air quality standard or increment
or visibility requirement under part C of title I of the Act, but only
as it would apply to temporary sources permitted pursuant to
section 504(e) of the Act.
"Designated representative" shall have the meaning given to it in
section 402(26) of the Act and the regulations promulgated thereunder.
"Draft permit" means the version of a permit for which the
permitting authority offers public participation under 70.7(h) or
affected State review under 70.8.
"Emissions allowable under the permit" means a federally
enforceable permit term or condition determined at issuance to be
required by an applicable requirement that establishes an emissions
limit (including a work practice standard) or a federally enforceable
emissions cap that the source has assumed to avoid an applicable
requirement to which the source would otherwise be subject.
"Emissions unit" means any part or activity of a stationary
source that emits or has the potential to emit any regulated air
pollutant or any pollutant listed under section 112(b) of the Act.
This term is not meant to alter or affect the definition of the term
"unit" for purposes of title IV of the Act.
The "EPA" or the "Administrator" means the Administrator of the
EPA or his or her designee.
"Final permit" means the version of a part 70 permit issued by
the permitting authority that has completed all review procedures
required by 70.7 and 70.8.
"Fugitive emissions" are those emissions which could not
reasonably pass through a stack, chimney, vent, or other functionally-
equivalent opening.
"General permit" means a part 70 permit that meets the
requirements of 70.6(d).
"Major new source review" (major NSR) means a title I program
contained in an EPA-approved or promulgated implementation plan for
the preconstruction review of changes which are subject to review as
new major stationary sources or major modifications under EPA
regulations implementing parts C or D of title I of the Act.
"Major source" means any stationary source or group of stationary
sources as described in paragraphs (1), (2), or (3) of this
definition. (or, For purposes of paragraphs (2) and (3), major
stationary source includes any group of stationary sources that are
located on one or more contiguous or adjacent properties, and are
under common control of the same person (or persons under common
control)) belonging to a single major industrial grouping and that are
described in paragraphs (1), (2), or (3) of this definition. For the
purposes of defining "major source," in paragraphs (2) or (3) of this
definition, a stationary source or group of stationary sources shall
be considered part of a single industrial grouping if all of the
pollutant emitting activities at such source or group of sources on
contiguous or adjacent properties belong to the same Major Group
(i.e., all have the same two-digit code) as described in the Standard
Industrial Classification Manual, 1987. In addition, for purposes of
paragraphs (2) and (3) of this definition, any stationary source (or
group of stationary sources) that supports another source, where both
are under common control of the same person (or persons under common
control) and on contiguous or adjacent properties, shall be considered
a support facility and part of the same source regardless of the 2-
digit SIC code for that support facility. A stationary source (or
group of stationary sources) is considered a support facility to a
source if at least 50 percent of the output of the support facility is
dedicated to the source.
(1) A major source under section 112 of the Act, which is
defined as:
(i) For pollutants other than radionuclides, any stationary
source or group of stationary sources located within a contiguous area
and under common control that emits or has the potential to emit, in
the aggregate, 10 tons per year (tpy) or more of any hazardous air
pollutant (HAP) (including any fugitive emissions of such pollutant)
which has been listed pursuant to section 112(b) of the Act, 25 tpy or
more of any combination of such hazardous air pollutants (including
any fugitive emissions of such pollutants), or such lesser quantity as
the Administrator may establish by rule. Notwithstanding the
preceding sentence, emissions from any oil or gas exploration or
production well (with its associated equipment) and emissions from any
pipeline compressor or pump station shall not be aggregated with
emissions from other similar units, whether or not such units are in a
contiguous area or under common control, to determine whether such
units or stations are major sources; or
(ii) For radionuclides, "major source" shall have the meaning
specified by the Administrator by rule.
(2) A major stationary source of air pollutants or any group of
stationary sources as defined in section 302 of the Act, that directly
emits, or has the potential to emit, 100 tpy or more of any air
pollutant (including any 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 or for the purposes of paragraph (3) of
this definition, unless the source belongs to one of the following
categories of stationary source:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more than 250
tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or nitric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plant;
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants;
(xxi) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(xxii) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil-fuel-fired steam electric plants of more than
250 million British thermal units per hour heat
input; or
(xxvii) All other stationary source categories regulated by a
standard promulgated as of August 7, 1980, under section 111 or 112 of
the Act, but only with respect to those air pollutants that have been
regulated for that category;
(3) A major stationary source as defined in part D of title I of
the Act, including:
(i) For ozone nonattainment areas, sources with the potential to
emit 100 tpy or more of volatile organic compounds or oxides of
nitrogen in areas classified as "marginal" or "moderate," 50 tpy or
more in areas classified as "serious," 25 tpy or more in areas
classified as "severe," and 10 tpy or more in areas classified as
"extreme"; except that the references in this paragraph to 100, 50,
25, and 10 tpy of nitrogen oxides shall not apply with respect to any
source for which the Administrator has made a finding, under section
182(f)(1) or (2) of the Act, that requirements under section 182(f) of
the Act do not apply;
(ii) For ozone transport regions established pursuant to section
184 of the Act, sources with the potential to emit 50 tpy or more of
volatile organic compounds;
(iii) For carbon monoxide nonattainment areas (1) that are
classified as "serious," and (2) in which stationary sources
contribute significantly to carbon monoxide levels as determined under
rules issued by the Administrator, sources with the potential to emit
50 tpy or more of carbon monoxide; and
(iv) For particulate matter (PM-10) nonattainment areas
classified as "serious," sources with the potential to emit 70 tpy or
more of PM-10.
"Minor new source review" (minor NSR) means a title I program
approved by EPA into a State's implementation plan under EPA
regulations implementing section 110(a)(2) of title I of the Act for
the preconstruction review of changes which are subject to review as
new or modified sources and which do not qualify as new major
stationary sources or major modifications under EPA regulations
implementing parts C or D of title I of the Act.
"Part 70 permit" or "permit" (unless the context suggests
otherwise) means any permit or group of permits covering a part 70
source that is issued, renewed, amended, or revised pursuant to this
part.
"Part 70 program" or "State program" means a program approved by
the Administrator under this part.
"Part 70 source" means any source subject to the permitting
requirements of this part, as provided in 70.3(a) and 70.3(b).
"Permit modification" means a revision to a part 70 permit that
meets the requirements of 70.7(e).
"Permit program costs" means all reasonable (direct and indirect)
costs required to develop and administer a permit program, as set
forth in 70.9(b) (whether such costs are incurred by the permitting
authority or other State or local agencies that do not issue permits
directly, but that support permit issuance or administration).
"Permit revision" means any de minimis permit revision, minor
permit revision, significant permit modification revision, or
administrative permit amendment.
"Permitting authority" means either of the following:
(1) The Administrator, in the case of EPA-implemented programs;
or
(2) The State air pollution control agency, local agency, other
State agency, or other agency authorized by the Administrator to carry
out a permit program under this part.
"Potential to emit" means the maximum capacity of a stationary
source to emit any air pollutant under its physical and operational
design. Any physical or operational limitation on the capacity of a
source to emit an air pollutant, including air pollution control
equipment and restrictions on hours of operation or on the type or
amount of material combusted, stored, or processed, shall be treated
as part of its design if the limitation is enforceable by the
Administrator and citizens under the Act. This term does not alter or
affect the use of this term for any other purposes under the Act, or
the term "capacity factor" as used in title IV of the Act or the
regulations promulgated thereunder.
"Proposed permit" means the version of a permit that the
permitting authority proposes to issue and forwards to the
Administrator for review in compliance with 70.8.
"Regulated air pollutant" means the following:
(1) Nitrogen oxides or any volatile organic compounds;
(2) Any pollutant for which a national ambient air quality
standard has been promulgated;
(3) Any pollutant that is subject to any standard promulgated
under section 111 of the Act;
(4) Any Class I or II substance subject to a standard
promulgated under or established by title VI of the Act; or
(5) Any pollutant subject to a standard promulgated under
section 112 or other requirements established under section 112 of the
Act, including sections 112(g), (j), and (r) of the Act, including the
following:
(i) Any pollutant subject to requirements under section 112(j)
of the Act. If the Administrator fails to promulgate a standard by
the date established pursuant to section 112(e) of the Act, any
pollutant for which a subject source would be major shall be
considered to be regulated on the date 18 months after the applicable
date established pursuant to section 112(e) of the Act; and
(ii) Any pollutant for which the requirements of section
112(g)(2) of the Act have been met, but only with respect to the
individual source subject to section 112(g)(2) requirement.
"Regulated pollutant (for presumptive fee calculation)," which is
used only for purposes of 70.9(b)(2), means any "regulated air
pollutant" except the following:
(1) Carbon monoxide;
(2) Any pollutant that is a regulated air pollutant solely
because it is a Class I or II substance subject to a standard
promulgated under or established by title VI of the Act; or
(3) Any pollutant that is a regulated air pollutant solely
because it is subject to a standard or regulation under section 112(r)
of the Act.
"Renewal" means the process by which a permit is reissued at the
end of its term.
"Responsible official" means one of the following:
(1) For a corporation: a president, secretary, treasurer, or
vice-president of the corporation in charge of a principal business
function, or any other person who performs similar policy or decision-
making functions for the corporation, or a duly authorized
representative of such person if the representative is responsible for
the overall operation of one or more manufacturing, production, or
operating facilities applying for or subject to a permit and either:
(i) the facilities employ more than 250 persons or have gross
annual sales or expenditures exceeding $25 million (in second quarter
l980 dollars); or
(ii) the delegation of authority to such representative is
approved in advance by the permitting authority;
(2) For a partnership or sole proprietorship: a general partner
or the proprietor, respectively;
(3) For a municipality, State, Federal, or other public agency:
either a principal executive officer or ranking elected official. For
the purposes of this part, a principal executive officer of a Federal
agency includes the chief executive officer having responsibility for
the overall operations of a principal geographic unit of the agency
(e.g., a Regional Administrator of EPA); or
(4) For affected sources:
(i) The designated representative in so far as for all actions,
standards, requirements, or prohibitions under title IV of the Act or
the regulations promulgated thereunder are concerned; and ; or
(ii) The designated representative or a person meeting the
provisions of (1), (2), or (3) of this definition for any other
purposes under part 70.
"Section 502(b)(10) changes" are changes that contravene an
express permit term. Such changes do not include changes that would
violate applicable requirements or contravene federally enforceable
permit terms and conditions that are monitoring (including test
methods), recordkeeping, reporting, or compliance certification
requirements.
"State" means any non-Federal permitting authority, including any
local agency, interstate association, or statewide program. The term
"State" also includes the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands. Where such meaning is
clear from the context, "State" shall have its conventional meaning.
For purposes of the acid rain program, the term "State" shall be
limited to authorities within the 48 contiguous States and the
District of Columbia as provided in section 402(14) of the Act.
"Stationary source" means any building, structure, facility, or
installation that emits or may emit any regulated air pollutant or any
pollutant listed under section 112(b) of the Act.
"Title I modification" or "modification under any provision of
title I of the Act" means any modification under parts C and D of
title I or sections 110(a)(2), 111(a)(4), 112(a)(5), or 112(g) of the
Act; under regulations promulgated by EPA thereunder or in 61.07 of
part 61 of this chapter; or under State regulations approved by EPA to
meet such requirements.
"Whole program" means a part 70 permit program, or any
combination of partial programs, that meet all the requirements of
these regulations and cover all the part 70 sources in the entire
State. For the purposes of this definition, the term "State" does not
include local permitting authorities, but refers only to the entire
State, Commonwealth, or Territory.
70.3 Applicability.
(a) Part 70 sources. A State program with whole or partial
approval under this part must provide for permitting of at least the
following sources:
(1) Any major source, except that a source is not required to
obtain a permit if it would be classified as a major source solely
because it has the potential to emit major amounts of a pollutant
listed pursuant to section 112(r)(3) of the Act and is not otherwise
required to obtain a permit under this part;
(2) Any source, including an area source (i.e., a nonmajor
source), subject to a standard, limitation, or other requirement under
section 111 of the Act;
(3) Any source, including an area source (i.e., a nonmajor
source), subject to a standard or other requirement under section 112
of the Act, except that a source is not required to obtain a permit
solely because it is subject to regulations or requirements under
section 112(r) of the Act;
(4) Any source required to have a permit under parts C or D of
title I of the Act,
(45) Any affected source; and
(56) Any source in a source category designated by the
Administrator pursuant to this section.
(b) Source category exemptions. (1) All sources listed in
paragraph (a) of this section that are not major sources, affected
sources, or solid waste incineration units required to obtain a permit
pursuant to section 129(e) of the Act may be exempted by the State
from the obligation to obtain a part 70 permit until such time as the
Administrator completes a rulemaking to determine how the program
should be structured for nonmajor sources and the appropriateness of
any permanent exemptions in addition to those provided for in
paragraph (b)(4) of this section.
(2) In the case of nonmajor sources subject to a standard or
other requirement under either section 111 or section 112 of the Act
promulgated after July 21, 1992 publication, the Administrator will
determine whether to exempt any or all such applicable sources from
the requirement to obtain a part 70 permit at the time that the new
standard is promulgated.
(3) Any source listed in paragraph (a) of this section exempt
from the requirement to obtain a permit under this section may opt to
apply for a permit under a part 70 program.
(4) Unless otherwise required by the State to obtain a part 70
permit, the following source categories are exempted from the
obligation to obtain a part 70 permit:
(i) All sources and source categories that would be required to
obtain a permit solely because they are subject to part 60, Subpart
AAA - Standards of Performance for New Residential Wood Heaters; and
(ii) All sources and source categories that would be required to
obtain a permit solely because they are subject to part 61, Subpart M -
National Emission Standard for Hazardous Air Pollutants for Asbestos,
section 6l.145, Standard for Demolition and Renovation.
(c) Emissions units and part 70 sources.
(1) For major sources, the permitting authority shall include in
the permit all applicable requirements for all relevant emissions
units in the major source.
(2) For any nonmajor source subject to the part 70 program under
paragraphs (a) or (b) of this section, the permitting authority shall
include in the permit all applicable requirements applicable to
emissions units that cause the source to be subject to the part 70
program.
(d) Fugitive emissions. Fugitive emissions from a part 70
source shall be included in the permit application and the part 70
permit in the same manner as stack emissions, regardless of whether
the source category in question is included in the list of sources
contained in the definition of major source.
70.4 State program submittals and transition.
(a) Date for submittal. Not later than November 15, 1993, the
Governor of each State shall submit to the Administrator for approval
a proposed part 70 program, under State law or under an interstate
compact, meeting the requirements of this part. If part 70 is
subsequently revised such that the Administrator determines that it is
necessary to require a change to an approved State program, the
required revisions to the program shall be submitted within 12 months
of the final changes to part 70 or within such other period as
authorized by the Administrator.
(b) Elements of the initial program submission. Any State that
seeks to administer a program under this part shall submit to the
Administrator a letter of submittal from the Governor or his designee
requesting EPA approval of the program and at least three copies of a
program submission. The submission shall contain the following:
(1) A complete program description describing how the State
intends to carry out its responsibilities under this part.
(2) The regulations that comprise the permitting program,
reasonably available evidence of their procedurally correct adoption,
(including any notice of public comment and any significant comments
received on the proposed part 70 program as requested by the
Administrator), and copies of all applicable State or local statutes
and regulations including those governing State administrative
procedures that either authorize the part 70 program or restrict its
implementation. The State shall include with the regulations any
criteria used to determine insignificant activities or emission levels
for purposes of determining complete applications consistent with
70.5(c).
(3) A legal opinion from the Attorney General for the State, or
the attorney for those State, local, or interstate air pollution
control agencies that have independent legal counsel, stating that the
laws of the State, locality, or interstate compact provide adequate
authority to carry out all aspects of the program. This statement
shall include citations to the specific statutes, administrative
regulations, and, where appropriate, judicial decisions that
demonstrate adequate authority. State statutes and regulations cited
by the State Attorney General or independent legal counsel shall be in
the form of lawfully adopted State statutes and regulations at the
time the statement is signed and shall be fully effective by the time
the program is approved. To qualify as "independent legal counsel,"
the attorney signing the statement required by this section shall have
full authority to independently represent the State agency in court on
all matters pertaining to the State program. The legal opinion shall
also include a demonstration of adequate legal authority to carry out
the requirements of this part, including authority to carry out each
of the following:
(i) Issue permits and assure compliance with each applicable
requirement and requirement of this part by all part 70 sources.
(ii) Incorporate monitoring, recordkeeping, reporting, and
compliance certification requirements into part 70 permits consistent
with 70.6.
(iii) Issue permits for a fixed term of 5 years in the case of
permits with acid rain provisions and issue all other permits for a
period not to exceed 5 years, except for permits issued for solid
waste incineration units combusting municipal waste subject to
standards under section 129(e) of the Act.
(iv) Issue permits for solid waste incineration units combusting
municipal waste subject to standards under section 129(e) of the Act
for a period not to exceed 12 years and review such permits at least
every 5 years. No permit for a solid waste incineration unit may be
issued by an agency, instrumentality or person that is also
responsible, in whole or in part, for the design and construction or
operation of the unit.
(v) Incorporate into permits all applicable requirements and
requirements of this part.
(vi) Terminate, modify, or revoke and reissue permits for cause.
(vii) Enforce permits, permit fee requirements, and the
requirement to obtain a permit, as specified in 70.11.
(viii) Make available to the public any permit application,
compliance plan, permit, and monitoring and compliance certification
report pursuant to section 503(e) of the Act, except for information
entitled to confidential treatment pursuant to section 114(c) of the
Act. The contents of a part 70 permit shall not be entitled to
protection under section 114(c) of the Act.
(ix) Not issue a permit if the Administrator timely objects to
its issuance pursuant to 70.8(c) or, if the permit has not already
been issued, to 70.8(d).
(x) Provide an opportunity for judicial review in State court of
the final permit action by the applicant, any person who participated
in the applicable public participation process provided pursuant to
70.7 and any other person who could obtain judicial review of such
actions under State laws.
(xi) Provide that, solely for the purposes of obtaining judicial
review in State court for failure to take final action, final permit
action shall include the failure of the permitting authority to take
final action on an application for a permit, permit renewal, or permit
revision within the time specified in the State program. If the State
program allows sources to make changes subject to post hoc review [as
set forth in 70.7(e)(2) and (3)], the permitting authority's
failure to take final action within 90 days of receipt of an
application requesting minor permit modification procedures (or 180
days for modifications subject to group processing requirements) must
be subject to judicial review in State court.
(xii) Provide that the opportunity for judicial review described
in paragraph (b)(3)(x) of this section shall be the exclusive means
for obtaining judicial review of the terms and conditions of permits,
and require that such petitions for judicial review must be filed no
later than 90 125 days after the final permit action, or such shorter
time as the State shall designate. Notwithstanding the preceding
requirement, petitions for judicial review of final permit actions can
be filed after the deadline designated by the State, only if they are
based solely on grounds arising after the deadline for judicial
review. Such petitions shall be filed no later than 90 125 days after
the new grounds for review arise or such shorter time as the State
shall designate. If the final permit action being challenged is the
permitting authority's failure to take final action, a petition for
judicial review may be filed any time before the permitting authority
denies the permit or issues the final permit.
(xiii) Ensure that the authority of the State/local permitting
Agency is not used to modify the acid rain program requirements.
(4) Relevant permitting program documentation not contained in
the State regulations, including the following:
(i) Copies of the permit form(s), application form(s), and
reporting form(s) the State intends to employ in its program; and
(ii) Relevant guidance issued by the State to assist in the
implementation of its permitting program, including criteria for
monitoring source compliance (e.g., inspection strategies).
(5) A complete description of the State's compliance tracking
and enforcement program or reference to any agreement the State has
with EPA that provides this information.
(6) A showing of adequate authority and procedures to determine
within 60 days of receipt whether applications (including renewal
applications) are complete, to request such other information as
needed to process the application, and to take final action on
complete applications within 18 months of the date of their submittal,
except for initial permit applications, for which the permitting
authority may take up to 3 years from the effective date of the
program to take final action on the application, as provided for in
the transition plan.
(7) A demonstration, consistent with 70.9, that the permit
fees required by the State program are sufficient to cover permit
program costs.
(8) A statement that adequate personnel and funding have been
made available to develop, administer, and enforce the program. This
statement shall include the following:
(i) A description in narrative form of the scope, structure,
coverage, and processes of the State program.
(ii) A description of the organization and structure of the
agency or agencies that will have responsibility for administering the
program, including the information specified in this paragraph. If
more than one agency is responsible for administration of a program,
the responsibilities of each agency must be delineated, their
procedures for coordination must be set forth, and an agency shall be
designated as a "lead agency" to facilitate communications between EPA
and the other agencies having program responsibility.
(iii) A description of the agency staff who will carry out the
State program, including the number, occupation, and general duties of
the employees. The State need not submit complete job descriptions
for every employee carrying out the State program.
(iv) A description of applicable State procedures, including
permitting procedures and any State administrative or judicial review
procedures.
(v) An estimate of the permit program costs for the first 4
years after approval, and a description of how the State plans to
cover those costs.
(9) A commitment from the State to submit, at least annually to
the Administrator, information regarding the State's enforcement
activities including, but not limited to, the number of criminal and
civil, judicial and administrative enforcement actions either
commenced or concluded; the penalties, fines, and sentences obtained
in those actions; and the number of administrative orders issued.
(10) A requirement under State law that, if a timely and
complete application for a permit renewal is submitted, consistent
with 70.5(a)(2), but the State has failed to issue or deny the
renewal permit before the end of the term of the previous permit,
then:
(i) The permit shall not expire until the renewal permit has
been issued or denied and any permit shield that may be granted
pursuant to 70.6(f) may extend beyond the original permit term until
renewal; or
(ii) All the terms and conditions of the permit including any
permit shield that may be granted pursuant to 70.6(f) shall remain
in effect until the renewal permit has been issued or denied.
(11) A transition plan providing a schedule for submittal and
final action on initial permit applications for all part 70 sources.
This plan shall provide that:
(i) Submittal of permit applications by all part 70 sources
(including any sources subject to a partial or interim program) shall
occur within 1 year after the effective date of the permit program;
(ii) Final action shall be taken on at least one-third of such
applications annually over a period not to exceed 3 years after such
effective date;
(iii) Any complete permit application containing an early
reduction demonstration under section 112(i)(5) of the Act shall be
acted on within 912 months of receipt of the complete application; and
(iv) Submittal of permit applications and the permitting of
affected sources shall occur in accordance with the deadlines in title
IV of the Act and the regulations promulgated thereunder.
(12) Provisions consistent with paragraphs (b)(12)(i) throughand
(iii) of this section to allow changes within a permitted facility
without requiring a permit revision, if the changes are not
modifications under any provision of title I of the Act and the
changes do not exceed the emissions allowable under the permit
(whether expressed therein as a rate of emissions or in terms of total
emissions): Provided that the facility provides the Administrator and
the permitting authority with written notification as required below
in advance of the proposed changes, which shall be a minimum of 7
days, unless the permitting authority provides in its regulations a
different time frame for emergencies. The source, permitting
authority, and EPA shall attach each such notice to their copy of the
relevant permit. The following provisions implement this requirement
of an approvable part 70 permit program:
(i) The program shall allow permitted sources to make section
502(b)(10) changes without requiring a permit revision, if the changes
are not modifications under any provision of title I of the Act and
the changes do not exceed the emissions allowable under the permit
(whether expressed therein as a rate of emissions or in terms of total
emissions).
(A) For each such change, the written notification required
above shall include a brief description of the change within the
permitted facility, the date on which the change will occur, any
change in emissions, and any permit term or condition that is no
longer applicable as a result of the change.
(B) The permit shield described in 70.6(f) of this part shall
not apply to any change made pursuant to this paragraph (12)(i).
(iii) Trading under permitted emissions caps. The program shall
require the permitting authority ,if a permit applicant requests it,
to issue permits that contain terms and conditions, including all
terms required under 70.6 (a) and (c) of this part to determine
compliance, allowing for the trading of emissions increases and
deceases in the permitted facility solely for the purpose of complying
with a federally-enforceable emissions cap that is established in the
permit independent of otherwise applicable requirements to include in
a permit an emissions cap, pursuant to a request submitted by the
applicant, consistent with any specific emission limits or
restrictions otherwise required in the permit by any applicable
requirements, and permit terms and conditions for emissions trading
solely for the purposes of complying with that cap, provided that the
permitting authority finds that the request contains adequate terms
and conditions, including all terms required under 70.6(a) and (c)
of this part, to determine compliance with the cap and with any
emissions trading provisions. The permit shall also contain terms and
conditions to assure compliance with all applicable requirements. The
permit applicant shall include in its application proposed replicable
procedures and permit terms that ensure the emissions cap is
enforceable and trades pursuant to it are quantifiable and
enforceable. Any permit terms and conditions establishing such a cap
or allowing such trading may be established or changed only in a full
permit issuance, renewal, or significant permit revision process. The
permitting authority shall not be required to include in the cap or
emissions trading provisions any emissions units for whichwhere the
permitting authority determines that the emissions are not
quantifiable or for whichwhere it determines that there are no
replicable procedures or practical means to enforce the emissions
trades. The permit shall also require compliance with all applicable
requirements.
(A) Under this paragraph (b)(12)(iii), the written notification
required above shall state when the change will occur and shall
describe the changes in emissions that will result and how these
increases and decreases in emissions will comply with the terms and
conditions of the permit.
(B) The permit shield described in 70.6(f) of this part may
extend to terms and conditions that allow such increases and decreases
in emissions.
(ii) Trading under the implementation plan. The program may
provide for permitted sources to trade increases and decreases in
emissions in the permitted facility, where the applicable
implementation plan provides for such emissions trades without
requiring a permit revision and based on the 7-day notice prescribed
in this paragraph (b)(12)(ii). This provision is available in those
cases where the permit does not already provide for such emissions
trading provided the permit identifies which permit terms may be
replaced with the emissions trading provisions in the implementation
plan.
(A) Under this paragraph (b)(12)(ii), the written notification
required above shall include such information as may be required by
the provision in the applicable implementation plan authorizing the
emissions trade, including at a minimum, when the proposed change will
occur, a description of each such change, any change in emissions, the
permit requirements with which the source will comply using the
emissions trading provisions of the applicable implementation plan,
and the pollutants emitted subject to the emissions trade. The notice
shall also refer to the provisions with which the source will comply
in the applicable implementation plan and that provide for the
emissions trade.
(B) The permit shield described in 70.6(f) of this part shall
not extend to any change made under this paragraph (b)(12)(ii).
Compliance with the permit requirementsterms that the source will meet
using the emissions trade shall be determined according to
requirements of the applicable implementation plan authorizing the
emissions trade.
(13) Provisions for adequate, streamlined, and reasonable
procedures for expeditious review of permit revisions or
modifications. The program may meet this requirement by using
procedures that meet the requirements of 70.7(ed),(e), (f), (g),
and (h) or that are substantially equivalent to those provided in
70.7(e) therein.
(14) If a State allows permittees, without first applying for a
permit revision, to make changes that are not addressed or prohibited
by the permit, other than those described in paragraph (b)(15) of this
section, to be made without a permit revision do not result in the
source being in violation of any permit term or condition but render
the source subject to an applicable requirement to which the source
was not previously subject, provisions meeting the requirements of
paragraphs (b)(14)(i) through (iiivii) of this paragraph. Although a
State may, as a matter of State law, prohibit sources from making such
changes without a permit revision, any such prohibition shall not be
enforceable by the Administrator or by citizens under the Act unless
the prohibition is required by an applicable requirement. Any State
procedures implementing such a State law prohibition must include the
requirements of paragraphs (b)(14)(i) through (iii) of this paragraph.
(i) (A) Each change shall meet all applicable requirements and
shall not violate or result in the violation of any existing permit
term or condition.
(B) Each change shall not result in a net increase in the
allowable emissions of any regulated air pollutant at the source.
(C) The change may not be subject to the requirements of
title IV of the Act.
(ii) Sources must provide contemporaneous written notice to the
permitting authority and EPA of each such change, except for changes
that qualify as insignificant under the provisions adopted pursuant to
70.5(c) of this part. Such written notice shall describe each such
change, including the date of the change, any change in emissions,
pollutants emitted, and any the applicable requirement to which the
source becomes subject that would apply as a result of the change.
(iii) The change shall not qualify be eligible for the permit
shield under 70.6(f) of this part until such time as a permit shield
may be granted in a subsequent permit revision consistent with the
provisions of 70.7(g) or (h).
(iv) The permittee shall keep a record describing changes made
under this paragraph. at the source that result in emissions of a
regulated air pollutant subject to an applicable requirement, but not
otherwise regulated under the permit, and the emissions resulting from
those changes.
(v) The permittee shall apply for a permit revision by the
deadline set forth in 70.5(a)(1)(ii), except that if the deadline
would occur after the date on which a renewal application is due, the
State may allow the permittee to incorporate the permit revision
request into its renewal application.
(vi) The permit shall be revised under the relevant procedures of
70.7(e), (f), (g) or (h) for which the change is eligible, except
that, notwithstanding provisions in those sections, if the change is
processed under minor permit revision or significant permit revision
procedures, and the permitting authority or EPA determines that the
change was ineligible under this paragraph, then the source shall be
liable from the date the change was made for failing to apply for a
permit revision before the change was made as required under 70.7.
(vii) If eligible for the minor permit revision procedures of
70.7(g), the following provisions shall apply to changes made under
this paragraph.
(A) The public notice required under 70.7(g)(3)(ii) shall state
that if no germane and non-frivolous objection is received within 21
days of application, the permitting authority may consider that the
change was eligible for processing under this paragraph without
further opportunity for public objection. In addition to the
provisions of 70.7(g)(3)(ii), a germane objection is one that
objects to the change on the grounds that the source was ineligible
under this paragraph.
(B) The provisions of 70.7(g)(5)(i) and (ii) prohibiting the
source from making the change do not apply.
(C) Notwithstanding the provisions of 70.7(g)(6), the source
must comply with all applicable requirements from the date the change
was made.
(15) Provisions prohibiting sources from making, without a
permit revision, changes that are not addressed or prohibited by the
part 70 permit, if such changes are subject to any requirements under
title IV of the Act or are modifications under any provision of
title I of the Act.
(16 15) Provisions requiring the permitting authority to
implement the requirements of 70.6 and 70.7.
(c) Partial programs.
(1) The EPA may approve a partial program that applies to all
part 70 sources within a limited geographic area (e.g., a local agency
program covering all sources within the agency's jurisdiction). To be
approvable, any partial program must, at a minimum, ensure compliance
with all of the following applicable requirements, as they apply to
the sources covered by the partial program:
(i) All requirements of title V of the Act and of
part 70;
(ii) All applicable requirements of title IV of the Act and
regulations promulgated thereunder which apply to affected sources;
and
(iii) All applicable requirements of title I of the Act,
including those established under sections 111 and 112 of the Act.
(2) Any partial permitting program, such as that of a local air
pollution control agency, providing for the issuance of permits by a
permitting authority other than the State, shall be consistent with
all the elements required in paragraphs (b)(1) through (16) of this
section.
(3) Approval of any partial program does not relieve the State
from its obligation to submit a whole program or from application of
any sanctions for failure to submit a fully-approvable whole program.
(4) Any partial program may obtain interim approval under
paragraph (d) of this section if it substantially meets the
requirements of this paragraph (c).
(d) Interim approval.
(1) If a program (including a partial permit program) submitted
under this part substantially meets the requirements of this part, but
is not fully approvable, the Administrator may by rule grant the
program interim approval.
(2) Interim approval shall expire on a date set by the
Administrator (but not later than 2 years after such approval), and
may not be renewed. Sources shall become subject to the program
according to the schedule approved in the State program. Permits
granted under an interim approval shall be fully effective and expire
at the end of their fixed term, unless renewed under a part 70
program.
(3) The EPA willmay grant interim approval to any program if it
meets each of the following minimum requirements:
(i) Adequate fees. The program must provide for collecting
permit fees adequate for it to substantially meet the requirements of
70.9.
(ii) Applicable requirements. The program must provide for
adequate authority to issue permits that assure compliance with the
requirements of paragraph (c)(1) of this section for those major
sources covered by the program.
(iii) Fixed term. The program must provide for fixed permit
terms, consistent with paragraph (b)(3)(iii) and (iv) of this section.
(iv) Public participation. The program must provide for
adequate public notice of and an opportunity for public comment
participation and a hearing on draft permits, reopenings for cause,
and revisions as required by 70.7 of this part, except for:
(A) Mmodifications qualifying for minor permit modification
procedures under 70.7(e) of this part as promulgated July 21, 1992;
and
(B) Permit revisions to incorporate changes subject to minor NSR
or 61.15 of part 61 of this chapter processed as minor permit
modifications under 70.7(e) of this part as promulgated July 21,
1992.
(v) EPA and affected State review. The program must allow EPA
an opportunity to review each proposed permit, including permit
revisions, and to object to its issuance consistent with 70.8(c).
The program must provide for affected State review consistent with
70.8(b).
(vi) Permit issuance. The program must provide that the
proposed permit will not be issued if EPA objects to its issuance.
(vii) Enforcement. The program must contain authority to
enforce permits, including the authority to assess penalties against
sources that do not comply with their permits or with the requirement
to obtain a permit.
(viii) Operational flexibility. The program must allow changes
within a permitted facility without requiring a permit revision, if
the changes are not modifications under any provision of title I of
the Act and the changes do not exceed the emissions allowable under
the permit, consistent with paragraph (b)(12).
(ix) Streamlined procedures. The program must provide for
streamlined procedures for issuing and revising permits and
determining expeditiously after receipt of a permit application or
application for a permit revision whether such application is
complete.
(x) Permit application. The program submittal must include
copies of the permit application and reporting form(s) that the State
will use in implementing the interim program.
(xi) Alternative scenarios. The program submittal must include
provisions to insure that alternate scenarios requested by the source
are included in the part 70 permit pursuant to 70.6(a)(9).
(e) EPA review of permit program submittals. Within 1 year
after receiving a program submittal, the Administrator shall approve
or disapprove the program, in whole or in part, by publishing a notice
in the FEDERAL REGISTER. Prior to such notice, the Administrator
shall provide an opportunity for public comment on such approval or
disapproval. Any EPA action disapproving a program, in whole or in
part, shall include a statement of the revisions or modifications
necessary to obtain full approval. The Administrator shall approve
State programs that conform to the requirements of this part.
(1) Within 60 days of receipt by EPA of a State program
submission, EPA will notify the State whether its submission is
complete enough to warrant review by EPA for either full, partial, or
interim approval. If EPA finds that a State's submission is complete,
the 1-year review period (i.e., the period of time allotted for formal
EPA review of a proposed State program) shall be deemed to have begun
on the date of receipt of the State's submission. If EPA finds that a
State's submission is incomplete, the 1-year review period shall not
begin until all the necessary information is received by EPA.
(2) If the State's submission is materially changed during the
1-year review period, the Administrator may extend the review period
for no more than 1 year following receipt of the revised submission.
(3) In any notice granting interim or partial approval, the
Administrator shall specify the changes or additions that must be made
before the program can receive full approval and the conditions for
implementation of the program until that time.
(f) State response to EPA review of program.
(1) Disapproval. The State shall submit to EPA program
revisions or modifications required by the Administrator's action
disapproving the program, or any part thereof, within 180 days of
receiving notification of the disapproval.
(2) Interim approval. The State shall submit to EPA changes to
the program addressing the deficiencies specified in the interim
approval no later than 6 months prior to the expiration of the interim
approval.
(g) Effective date. The effective date of a part 70 program,
including any partial or interim program approved under this part,
shall be the effective date of approval by the Administrator.
(h) Individual permit transition. Upon approval of a State
program, the Administrator shall suspend the issuance of Federal
permits for those activities subject to the approved State program,
except that the Administrator will continue to issue phase I acid rain
permits and, to the extent provided in regulations promulgated
pursuant to title IV of the Act, will issue phase II acid rain
permits. After program approval, EPA shall retain jurisdiction over
any permit (including any general permit) that it has issued unless
arrangements have been made with the State to assume responsibility
for these permits. Where EPA retains jurisdiction, it will continue
to process permit appeals and modification revision requests, to
conduct inspections, and to receive and review monitoring reports. If
any permit appeal or modification revision request is not finally
resolved when the federally-issued permit expires, EPA may, with the
consent of the State, retain jurisdiction until the matter is
resolved. Upon request by a State, the Administrator may delegate
authority to implement all or part of a permit issued by EPA, if a
part 70 program has been approved for the State. The delegation may
include authorization for the State to collect appropriate fees,
consistent with 70.9.
(i) Program revisions. Either EPA or a State with an approved
program may initiate a program revision. Program revision may be
necessary when the relevant Federal or State statutes or regulations,
including part 70, are revised, modified, or supplemented. The State
shall keep EPA apprised of any proposed modifications to its basic
statutory or regulatory authority or procedures. (1) If the
Administrator determines pursuant to 70.10 that a State is not
adequately administering the requirements of this part, or that the
State's permit program is inadequate in any other way, the State shall
revise the program or its means of implementation to correct the
inadequacy. The program shall be revised within 180 days, or such
other period as the Administrator may specify, following notification
by the Administrator, or within 2 years if the State demonstrates that
additional legal authority is necessary to make the program revision.
(1) If the program or the means of implementing it must be
revised, fully adopted program revisions shall be submitted to the
Administrator in accordance with the following timeframes, which will
commence upon promulgation of revised requirements under title V of
the Act or upon a finding by the Administrator of inadequate program
administration:
(i) Within 180 days if no new statutory authority or regulatory
revisions are necessary;
(ii) Within 12 months if no new statutory authority is needed
but regulatory revisions are necessary;
(iii) Within 2 years if new statutory authority is needed; or
(iv) Notwithstanding paragraphs (i)(1)(i-iii) of this section,
any other time period that the Administrator determines is appropriate
to allow for program revision.
(2) Revision of a State program shall be accomplished as
follows:
(i) The State shall submit a modified program description,
Attorney General's statement, or such other documents as EPA
determines to be necessary.
(ii) After EPA receives a proposed program revision, it will
publish in the FEDERAL REGISTER a public notice summarizing the
proposed change and provide a public comment period of at least 30
days.
(iii) The Administrator shall approve or disapprove program
revisions based on the requirements of this part and of the Act.
(iv) A program revision shall become effective upon the approval
of the Administrator. Notice of approval of any substantial revision
shall be published in the FEDERAL REGISTER. Notice of approval of
non-substantial program revisions may be given by a letter from the
Administrator to the Governor or a designee.
(v) The Governor of any State with an approved part 70 program
shall notify EPA whenever the Governor proposes to transfer all or
part of the program to any other agency, and shall identify any new
division of responsibilities among the agencies involved. The new
agency is not authorized to administer the program until the revision
has been approved by the Administrator under this paragraph.
(3) Whenever the Administrator has reason to believe that
circumstances have changed with respect to a State program, he may
request, and the State shall provide, a supplemental Attorney
General's statement, program description, or such other documents or
information as he determines are necessary.
(j) Savings provision. Any operating permits program developed
and submitted to the Administrator for approval prior to [6 MONTHS
AFTER PUBLICATION OF FINAL PART 70 REVISIONS] must meet the applicable
criteria contained in part 70 as in effect on July 21, 1992 to receive
EPA approval. Notwithstanding the preceding sentence, the
Administrator may review portions or the entirety of such program
submittals upon request of the permitting authority, and will review
the entirety of all later submittals, on the basis of the criteria in
part 70 as in effect at the time of the submittal.
(kj) Sharing of information.
(1) Any information obtained or used in the administration of a
State program shall be available to EPA upon request without
restriction and in a form specified by the Administrator, including
computer-readable files to the extent practicable. If the information
has been submitted to the State under a claim of confidentiality, the
State may require the source to submit this information to the
Administrator directly. Where the State submits information to the
Administrator under a claim of confidentiality, the State shall submit
that claim to EPA when providing information to EPA under this
section. Any information obtained from a State or part 70 source
accompanied by a claim of confidentiality will be treated in
accordance with the regulations in part 2 of this chapter.
(2) The EPA will furnish to States with approved programs the
information in its files that the State needs to implement its
approved program. Any such information submitted to EPA under a claim
of confidentiality will be subject to the regulations in part 2 of
this chapter.
(lk) Administration and enforcement. Any State that fails to
adopt a complete, approvable part 70 program, or that EPA determines
is not adequately administering or enforcing such a program, shall be
subject to certain Federal sanctions as set forth in 70.10.
70.5 Permit applications.
(a) Duty to apply. For each part 70 source, the owner or
operator shall submit a timely and complete permit application in
accordance with this section.
(1) Timely application.
(i) A timely application for a source applying for a part 70
permit for the first time is one that is submitted within 12 months
after the source becomes subject to the permit program or on or before
such earlier date as the permitting authority may establish.
(ii) Part 70 sources required to meet the requirements under
section 112(g) of the Act, or to have a permit under the
preconstruction review program approved into the applicable
implementation plan under part C or D of title I of the Act, shall
file a complete application to obtain the part 70 permit or permit
revision within 12 months after commencing operation or on or before
such earlier date as the permitting authority may establish. Where an
existing part 70 permit would prohibit such construction or change in
operation, the source must obtain a permit revision before commencing
operation. For purposes of changes eligible under 70.4(b)(14), a
timely application is one that is submitted not later than 6 months
after the notice required under 70.4(b)(14)(ii).
(iii) For purposes of permit revisions other than changes
eligible under 70.4(b)(14), a timely application is one that is
submitted by the relevant deadlines set forth in 70.7(e), (f), (g),
or (h).
(iiiiv) For purposes of permit renewal, a timely application is
one that is submitted at least 6 months prior to the date of permit
expiration, or such other longer time as may be approved by the
Administrator that ensures that the term of the permit will not expire
before the permit is renewed. In no event shall this time be greater
than 18 months.
(ivv) Applications for initial phase II acid rain permits shall
be submitted to the permitting authority by January 1, 1996 for sulfur
dioxide, and by January 1, 1998 for nitrogen oxides or by such other
deadlines established under title IV of the Act and the regulations
promulgated thereunder.
(2) Complete application. The program shall provide criteria
and procedures for determining in a timely fashion when applications
are complete. To be deemedfound complete, an application must provide
all information required pursuant to paragraph (c) of this section
sufficient to allow the permitting authority to begin processing the
application, except that applications for permit revision need supply
such information only if it is related to the proposed change.
Information required under paragraph (c) of this section must be
sufficient to evaluate the subject source and its application and to
determine all applicable requirements. The program shall require that
a responsible official certify the submitted information consistent
with paragraph (d) of this section. Unless the permitting authority
determines that an application is not complete within 60 days of
receipt of the application, such application shall be deemed to be
complete, except as otherwise provided in 70.7(a)(4). If, while
processing an application that has been determined or deemed to be
complete, the permitting authority determines that additional
information is necessary to evaluate or take final action on that
application, it may request such information in writing and set a
reasonable deadline for a response. The source's ability to operate
without a permit, as set forth in 70.7(b), shall be in effect from
the date the application is determined or deemed to be complete until
the final permit is issued, provided that the applicant submits any
requested additional information by the deadline specified by the
permitting authority.
(3) Confidential information. In the case where a source has
submitted information to the State under a claim of confidentiality,
the permitting authority may also require the source to submit a copy
of such information directly to the Administrator.
(b) Duty to supplement or correct application. Any applicant
who fails to submit any relevant facts or who has submitted incorrect
information in a permit application shall, upon becoming aware of such
failure or incorrect submittal, promptly submit such supplementary
facts or corrected information. In addition, an applicant shall
provide additional information as necessary to address any
requirements that become applicable to the source after the date it
filed a complete application but prior to release of a draft permit.
(c) Standard application form and required information. The
State program under this part shall provide for a standard application
form or forms. Information as described below for each emissions unit
at a part 70 source shall be included in the application. The
Administrator may approve as part of a State program a list of
insignificant activities and emissions levels which need not be
included in permit applications. However, for insignificant
activities which are exempted because of size or production rate, a
list of such insignificant activities must be included in the
application. An application may not omit information needed to
determine the applicability of, or to impose, any applicable
requirement, or to evaluate the fee amount required under the schedule
approved pursuant to 70.9. No activity or emissions unit of a
source may be exempted when determining whether a source is major.
The permitting authority may use discretion in developing application
forms that best meet program needs and administrative efficiency. The
forms and attachments chosen, however, shall include the elements
specified below:
(1) Identifying information, including company name and address
(or plant name and address if different from the company name),
owner's name and agent, and telephone number and names of plant site
manager/contact.
(2) A description of the source's processes and products (by
Standard Industrial Classification Code) including any associated with
each alternate scenario identified by the source.
(3) The following emissions-related information:
(i) All emissions of pollutants for which the source is major,
and all emissions of regulated air pollutants. A permit application
shall describe all emissions of regulated air pollutants emitted from
any emissions unit, except where such units are exempted under this
paragraph (c). The permitting authority shall require additional
information related to the emissions of air pollutants sufficient to
verify which requirements are applicable to the source, and other
information necessary to collect any permit fees owed under the fee
schedule approved pursuant to 70.9(b).
(ii) Identification and description of all points of emissions
described in paragraph (c)(3)(i) of this section in sufficient detail
to establish the basis for fees and applicability of requirements of
the Act.
(iii) Emissions rates in tpy and in such terms as are necessary
to establish compliance consistent with the applicable standard
reference test method.
(iv) The following information to the extent it is needed to
determine or regulate emissions: fuels, fuel use, raw materials,
production rates, and operating schedules.
(v) Identification and description of air pollution control
equipment and compliance monitoring devices or activities.
(vi) Limitations on source operation affecting emissions or any
work practice standards, where applicable, for all regulated
pollutants at the part 70 source.
(vii) Other information required by any applicable requirement
(including information related to stack height limitations developed
pursuant to section 123 of the Act).
(viii) Calculations on which the information in items (i)
through (vii) above is based.
(4) The following air pollution control requirements:
(i) Citation and description of all applicable requirements, and
(ii) Description of or reference to any applicable test method
for determining compliance with each applicable requirement.
(5) Other specific information that may be necessary to
implement and enforce other applicable requirements of the Act or of
this part or to determine the applicability of such requirements.
(6) An explanation of any proposed exemptions from otherwise
applicable requirements.
(7) Additional information as determined to be necessary by the
permitting authority to define alternative operating scenarios
identified by the source pursuant to 70.6(a)(9) or to define permit
terms and conditions implementing 70.4(b)(12) or 70.6(a)(10) of
this part.
(8) Identification of those emissions units eligible for
emissions trading under 70.6(a)(10) and those emissions units at
which changes may be processed under de minimis permit revision
procedures contained in 70.7(f) of this part.
(89) A compliance plan for all part 70 sources that contains all
the following:
(i) A description of the compliance status of the source with
respect to all applicable requirements.
(ii) A description as follows:
(A) For applicable requirements with which the source is in
compliance, a statement that the source will continue to comply with
such requirements.
(B) For applicable requirements that will become effective
during the permit term, a statement that the source will meet such
requirements on a timely basis.
(C) For requirements for which the source is not in compliance
at the time of permit issuance, a narrative description of how the
source will achieve compliance with such requirements.
(iii) A compliance schedule as follows:
(A) For applicable requirements with which the source is in
compliance, a statement that the source will continue to comply with
such requirements.
(B) For applicable requirements that will become effective
during the permit term, a statement that the source will meet such
requirements on a timely basis. A statement that the source will meet
in a timely manner applicable requirements that become effective
during the permit term shall satisfy this provision, unless a more
detailed schedule is expressly required by the applicable requirement.
(C) A schedule of compliance for sources that are not in
compliance with all applicable requirements at the time of permit
issuance. Such a schedule shall include a schedule of remedial
measures, including an enforceable sequence of actions with
milestones, leading to compliance with any applicable requirements for
which the source will be in noncompliance at the time of permit
issuance. This compliance schedule shall resemble and be at least as
stringent as that contained in any judicial consent decree or
administrative order to which the source is subject. Any such
schedule of compliance shall be supplemental to, and shall not
sanction noncompliance with, the applicable requirements on which it
is based.
(iv) A schedule for submission of certified progress reports no
less frequently than every 6 months for sources required to have a
schedule of compliance to remedy a violation.
(v) The compliance plan content requirements specified in this
paragraph shall apply and be included in the acid rain portion of a
compliance plan for an affected source, except as specifically
superseded by regulations promulgated under title IV of the Act with
regard to the schedule and method(s) the source will use to achieve
compliance with the acid rain emissions limitations.
(910) Requirements for compliance certification, including the
following:
(i) A certification of compliance with all applicable
requirements by a responsible official consistent with paragraph (d)
of this section and section 114(a)(3) of the Act;
(ii) A statement of methods used for determining compliance,
including a description of monitoring, recordkeeping, and reporting
requirements and test methods;
(iii) A schedule for submission of compliance certifications
during the permit term, to be submitted no less frequently than
annually, or more frequently if specified by the underlying applicable
requirement or by the permitting authority; and
(iv) A statement indicating the source's compliance status with
any applicable enhanced monitoring and compliance certification
requirements of the Act.
(1011) The use of nationally-standardized forms for acid rain
portions of permit applications and compliance plans, as required by
regulations promulgated under title IV of the Act.
(d) Any application form, report, or compliance certification
submitted pursuant to these regulations shall contain certification by
a responsible official of truth, accuracy, and completeness. This
certification and any other certification required under this part
shall state that, based on information and belief formed after
reasonable inquiry, the statements and information in the document are
true, accurate, and complete.
70.6 Permit content.
(a) Standard permit requirements. Each permit issued under this
part shall include the following elements:
(1) Emission limitations and standards, including those
operational requirements and limitations that assure compliance with
all applicable requirements at the time of permit issuance.
(i) The permit shall specify and reference the origin of and
authority for each term or condition, and identify any difference in
form as compared to the applicable requirement upon which the term or
condition is based.
(ii) The permit shall state that, where an applicable
requirement of the Act is more stringent than an applicable
requirement of regulations promulgated under title IV of the Act, both
provisions shall be incorporated into the permit and shall be
enforceable by the Administrator.
(iii) If an applicable implementation plan allows a
determination of an alternative emission limit at a part 70 source,
equivalent to that contained in the plan, to be made in the permit
issuance, renewal, or significant modification revision process, and
the State elects to use such process, any permit containing such
equivalency determination shall contain provisions to ensure that any
resulting emissions limit has been demonstrated to be quantifiable,
accountable, enforceable, and based on replicable procedures.
(2) Permit duration. The permitting authority shall issue
permits for a fixed term of 5 years in the case of affected sources,
and for a term not to exceed 5 years in the case of all other sources.
Notwithstanding this requirement, the permitting authority shall issue
permits for solid waste incineration units combusting municipal waste
subject to standards under section 129(e) of the Act for a period not
to exceed 12 years and shall review such permits at least every 5
years.
(3) Monitoring and related recordkeeping and reporting
requirements.
(i) Each permit shall contain the following requirements with
respect to monitoring:
(A) All emissions monitoring and analysis procedures or test
methods required under the applicable requirements, including any
procedures and methods promulgated pursuant to sections 114(a)(3) or
504(b) of the Act;
(B) Where the applicable requirement does not require periodic
testing or instrumental or non-instrumental monitoring (which may
consist of recordkeeping designed to serve as monitoring), periodic
monitoring sufficient to yield reliable data from the relevant time
period that are representative of the source's compliance with the
permit, as reported pursuant to paragraph (a)(3)(iii) of this section.
Such monitoring requirements shall assure use of terms, test methods,
units, averaging periods, and other statistical conventions consistent
with the applicable requirement. Recordkeeping provisions may be
sufficient to meet the requirements of this paragraph (a)(3)(i)(B);
and
(C) As necessary, requirements concerning the use, maintenance,
and, where appropriate, installation of monitoring equipment or
methods.
(ii) With respect to recordkeeping, the permit shall incorporate
all applicable recordkeeping requirements and require, where
applicable, the following:
(A) Records of required monitoring information that include the
following:
(1) The date, place as defined in the permit, and time of
sampling or measurements;
(2) The date(s) analyses were performed;
(3) The company or entity that performed the analyses;
(4) The analytical techniques or methods used;
(5) The results of such analyses; and
(6) The operating conditions as existing at the time of sampling
or measurement including identification of any alternative scenarios
provided for in the permit;
(B) Retention of records of all required monitoring data and
support information for a period of at least 5 years from the date of
the monitoring sample, measurement, report, or application. Support
information includes all calibration and maintenance records and all
original strip-chart recordings for continuous monitoring
instrumentation, and copies of all reports required by the permit.
(iii) With respect to reporting, the permit shall incorporate
all applicable reporting requirements and require the following:
(A) Submittal of reports of any required monitoring at least
every 6 months. Monitoring reports must indicate what alternative
scenarios, if any, applied during each monitored period. All
instances of deviations from permit requirements must be clearly
identified in such reports. All required reports must be certified by
a responsible official consistent with 70.5(d).
(B) Prompt reporting of deviations from permit requirements,
including those attributable to upset conditions as defined in the
permit, the probable cause of such deviations, and any corrective
actions or preventive measures taken. The permitting authority shall
define "prompt" in its part 70 program regulations for each situation
which is not already defined in the underlying applicable requirement,
and do so in relation to the degree and type of deviation likely to
occur and the applicable requirements. Upset conditions shall be
defined in the permit.
(4) For affected sources, aA permit condition prohibiting
emissions exceeding any affected unit from emitting SO2 in excess of
any allowances that the source affected unit lawfully holds under
title IV of the Act or the regulations promulgated thereunder.
(i) No permit revision shall be required for increases in
emissions that are authorized by allowances acquired pursuant to the
acid rain program, provided that such increases do not require a
permit revision under any other applicable requirement.
(ii) No limit shall be placed on the number of allowances held
by the source unit. The source unit may not, however, use allowances
as a defense to noncompliance with any other applicable requirement.
(iii) Any such allowance shall be accounted for according to the
procedures established in regulations promulgated under title IV of
the Act.
(5) A severability clause to ensure the continued validity of
the various permit requirements in the event of a challenge to any
portions of the permit.
(6) Provisions stating the following:
(i) The permittee must comply with all conditions of the part 70
permit. Any permit noncompliance constitutes a violation of the Act
and is grounds for enforcement action; for permit termination,
revocation and reissuance, or modification revision; or for denial of
a permit renewal application.
(ii) Need to halt or reduce activity not a defense. It shall
not be a defense for a permittee in an enforcement action that it
would have been necessary to halt or reduce the permitted activity in
order to maintain compliance with the conditions of this permit.
(iii) The permit may be modified, revoked, reopened, and
reissued, or terminated for cause. The filing of a request by the
permittee for a permit modification revision, revocation and
reissuance, or termination, or of a notification of planned changes or
anticipated noncompliance does not stay any permit condition.
(iv) The permit does not convey any property rights of any sort,
or any exclusive privilege.
(v) The permittee shall furnish to the permitting authority,
within a reasonable time, any information that the permitting
authority may request in writing to determine whether cause exists for
modifying, revoking and reissuing, or terminating the permit or to
determine compliance with the permit. Upon request, the permittee
shall also furnish to the permitting authority copies of records
required to be kept by the permit or, for information claimed to be
confidential, the permittee may furnish such records directly to the
Administrator along with a claim of confidentiality.
(7) A provision to ensure that a part 70 source pays fees to the
permitting authority consistent with the fee schedule approved
pursuant to 70.9.
(8) Emissions trading. A provision stating that no permit
revision shall be required, under any economic incentives, marketable
permits, emissions trading and other similar programs or processes
approved in an implementation plan or other applicable requirement for
authorizing such changes that are to be provided for in the permit and
where the permit provides for such changes.
(9) Terms and conditions for reasonably anticipated operating
scenarios identified by the source in its application and approved by
the permitting authority. Such terms and conditions:
(i) Shall require the source, contemporaneously with making a
change from one operating scenario to another, to record in a log at
the permitted facility a record of the scenario under which it is
operating. Provided that each of the alternative scenarios available
for a particular unit is monitored in a way that yields objective,
contemporaneous measurement and recordation of relevant emissions or
parameters and that the means of measurement are sufficiently
different for each of the scenarios that the contemporaneous record
reveals the scenario under which the source was operating when the
record was made, no further notice to the permitting authority is
required. Otherwise, the permit shall require that when any change is
made between alternative scenarios, the permittee at the beginning of
the following week shall place in regular mail to the permitting
authority notice of such change(s) between scenarios, which could
consist of a copy of the relevant portion of the on-site log
indicating the scenario(s) under which the source operated during the
previous week;
(ii) May extend the permit shield described in paragraph (f) of
this section to all terms and conditions under each such operating
scenario; and
(iii) Must ensure that the terms and conditions of each such
alternative scenario meet all applicable requirements and the
requirements of this part.
(10) Terms and conditions, if the permit applicant requests
them, for the trading of emissions increases and decreases in the
permitted facility, to the extent that the applicable requirements
provide for trading such increases and decreases without a case-by-
case approval of each any emissions trade. Such terms and conditions:
(i) Shall include all terms required under 70.6(a) and (c) of
this part to determine compliance;
(ii) May extend the permit shield described in paragraph (f) of
this section to all terms and conditions that allow such increases and
decreases in emissions; and
(iii) Must meet all applicable requirements and requirements of
this part.
(b) Federally-enforceable requirements.
(1) All terms and conditions in a part 70 permit, including any
provisions designed to limit a source's potential to emit, are
enforceable by the Administrator and citizens under the Act.
(2) Notwithstanding paragraph (b)(1) of this section, the
permitting authority shall specifically designate as not being
federally enforceable under the Act any terms and conditions included
in the permit that are not required under the Act or under any of its
applicable requirements. Terms and conditions so designated are not
subject to the requirements of 70.7, 70.8, or of this section,
other than those contained in this paragraph (b).
(c) Compliance requirements. All part 70 permits shall contain
the following elements with respect to compliance:
(1) Consistent with paragraph (a)(3) of this section, compliance
certification, testing, monitoring, recordkeeping, reporting, and
recordkeeping compliance certification requirements sufficient to
assure compliance with the terms and conditions of the permit. Any
document (including reports) required to be submitted by a part 70
permit shall contain a certification by a responsible official that
meets the requirements of 70.5(d).
(2) Inspection and entry requirements that require that, upon
presentation of credentials and other documents as may be required by
law, the permittee shall allow the permitting authority or an
authorized representative to perform the following:
(i) Enter upon the permittee's premises where a part 70 source
is located or emissions-related activity is conducted, or where
records must be kept under the conditions of the permit;
(ii) Have access to and copy, at reasonable times, any records
that must be kept under the conditions of the permit;
(iii) Inspect at reasonable times any facilities, equipment
(including monitoring and air pollution control equipment), practices,
or operations regulated or required under the permit; and
(iv) As authorized by the Act, sample or monitor at reasonable
times substances or parameters for the purpose of assuring compliance
with the permit or applicable requirements.
(3) A schedule of compliance consistent with 70.5(c)(8)(9).
(4) Progress reports consistent with an applicable schedule of
compliance and 70.5(c)(8)(9) to be submitted at least semiannually,
or at a more frequent period if specified in the applicable
requirement or by the permitting authority. Such progress reports
shall contain the following:
(i) Dates for achieving the activities, milestones, or
compliance required in the schedule of compliance, and dates when such
activities, milestones or compliance were achieved; and
(ii) An explanation of why any dates in the schedule of
compliance were not or will not be met, and any preventive or
corrective measures adopted.
(5) Requirements for compliance certification with terms and
conditions contained in the permit, including emission limitations,
standards, or work practices. Permits shall include each of the
following:
(i) The frequency (not less than annually or such more frequent
periods as specified in the applicable requirement or by the
permitting authority) of submissions of compliance certifications;
(ii) In accordance with 70.6(a)(3), a means for monitoring the
compliance of the source with its emissions limitations, standards,
and work practices;
(iii) A requirement that the compliance certification include
the following:
(A) The identification of each term or condition of the permit
that is the basis of the certification;
(B) The compliance status;
(C) Whether compliance was continuous or intermittent;
(D) The method(s) used for determining the compliance status of
the source, currently and over the reporting period consistent with
paragraph (a)(3) of this section; and
(E) Such other facts as the permitting authority may require to
determine the compliance status of the source;
(iv) A requirement that all compliance certifications be
submitted to the Administrator as well as to the permitting authority;
and
(v) Such additional requirements as may be specified pursuant to
sections 114(a)(3) and 504(b) of the Act.
(6) Such other provisions as the permitting authority may
require.
(d) General permits.
(1) The permitting authority may, after notice and opportunity
for public participation provided under 70.7(hk), issue a general
permit covering numerous similar sources. Any general permit shall
comply with all requirements applicable to other part 70 permits and
shall identify criteria by which sources may qualify for the general
permit. To sources that qualify, the permitting authority shall grant
the conditions and terms of the general permit. Notwithstanding the
shield provisions of paragraph (f) of this section, the source shall
be subject to enforcement action for operation without a part 70
permit if the source is later determined not to qualify for the
conditions and terms of the general permit. General permits shall not
be authorized for affected sources under the acid rain program unless
otherwise provided in regulations promulgated under title IV of the
Act.
(2) Part 70 sources that would qualify for a general permit must
apply to the permitting authority for coverage under the terms of the
general permit or must apply for a part 70 permit consistent with
70.5. The permitting authority may, in the general permit, provide
for applications which deviate from the requirements of 70.5,
provided that such applications meet the requirements of title V of
the Act, and include all information necessary to determine
qualification for, and to assure compliance with, the general permit.
Without repeating the public participation procedures required under
70.7(hk), the permitting authority may grant a source's request for
authorization to operate under a general permit, butand such a grant
shall not be a final permit action for purposes of judicial review.
(3) The permitting authority shall provide timely notice to the
public of any authorization given to a source to operate under the
terms of a general permit. Such notice may be made on a monthly,
summarized basis covering all sources receiving authorization since
the time of the last notice.
(e) Temporary sources. The permitting authority may issue a
single permit authorizing emissions from similar operations by the
same source owner or operator at multiple temporary locations. The
operation must be temporary and involve at least one change of
location during the term of the permit. No affected source shall be
permitted as a temporary source. Permits for temporary sources shall
include the following:
(1) Conditions that will assure compliance with all applicable
requirements at all authorized locations;
(2) Requirements that the owner or operator notify the
permitting authority at least 10 days in advance of each change in
location; and
(3) Conditions that assure compliance with all other provisions
of this section.
(f) Permit shield.
(1) Except as provided in this part, the permitting authority
may expressly include in a part 70 permit a provision stating that
compliance with the conditions of the permit shall be deemed
compliance with any applicable requirements as of the date of permit
issuance, provided that:
(i) Such applicable requirements are included and are
specifically identified in the permit; or
(ii) The permitting authority, in acting on the permit
application or revision, determines in writing that other requirements
specifically identified are not applicable to the source, and the
permit includes the determination or a concise summary thereof.
(2) A part 70 permit that does not expressly state that a permit
shield exists shall be presumed not to provide such a shield.
(3) Nothing in this paragraph or in any part 70 permit shall
alter or affect the following:
(i) The provisions of sections 112(r)(9) and 303 of the Act
(emergency orders), including the authority of the Administrator under
that those sections;
(ii) The liability of an owner or operator of a source for any
violation of applicable requirements prior to or at the time of permit
issuance;
(iii) The applicable requirements of the acid rain program,
consistent with section 408(a) of the Act; or
(iv) The ability of EPA to obtain information from a source
pursuant to section 114 of the Act.
(g) Emergency provision.
(1) Definition. An "emergency" means any situation arising from
sudden and reasonably unforeseeable events beyond the control of the
source, including acts of God, which situation requires immediate
corrective action to restore normal operation, and that causes the
source to exceed a technology-based emission limitation under the
permit, due to unavoidable increases in emissions attributable to the
emergency. An emergency shall not include noncompliance to the extent
caused by improperly designed equipment, lack of preventative
maintenance, careless or improper operation, or operator error.
(2) Effect of an emergency. An emergency constitutes an
affirmative defense to an action brought for noncompliance with such
technology-based emission limitations if the conditions of paragraph
(g)(3) of this section are met.
(3) The affirmative defense of emergency shall be demonstrated
through properly signed, contemporaneous operating logs, or other
relevant evidence that:
(i) An emergency occurred and that the permittee can identify
the cause(s) of the emergency;
(ii) The permitted facility was at the time being properly
operated;
(iii) During the period of the emergency the permittee took all
reasonable steps to minimize levels of emissions that exceeded the
emission standards, or other requirements in the permit; and
(iv) The permittee submitted notice of the emergency to the
permitting authority within 2 working days of the time when emission
limitations were exceeded due to the emergency. This notice fulfills
the requirement of paragraph (a)(3)(iv)(B) of this section. This
notice must contain a description of the emergency, any steps taken to
mitigate emissions, and corrective actions taken.
(4) In any enforcement proceeding, the permittee seeking to
establish the occurrence of an emergency has the burden of proof.
(5) This provision is in addition to any emergency or upset
provision contained in any applicable requirement.
70.7 Permit issuance, renewal, reopenings, and revisions.
(a) Action on application.
(1) A permit, permit modification revision, or renewal may be
issued only if all of the following conditions have been met:
(i) The permitting authority has received a complete application
for a permit, permit modification revision, or permit renewal, except
that a complete application need not be received before issuance of a
general permit under 70.6(d) of this part;
(ii) Except for modifications qualifying for minor permit
modification procedures under paragraphs (e)(2) and (3) of this
section, t The permitting authority has complied with the applicable
requirements for public participation under paragraph (h) of this
section;
(iii) The permitting authority has complied with the
requirements for notifying and responding to affected States under
70.8(b);
(iv) Except as provided in paragraph (a)(7) of this section,
Tthe conditions of the permit provide for compliance with all
applicable requirements and the requirements of this part; and
(v) Except for revisions qualifying for de minimis permit
revision procedures under paragraph (f) of this section or for
administrative amendment procedures under paragraphs (e)(1)(i-v) of
this section, tThe Administrator has received a copy of the proposed
permit and any notices required under 70.8(a) and 70.8(b), and has
not objected to issuance of the permit under 70.8(c) within the time
period specified therein.
(2) Except as provided under the initial transition plan
provided for under 70.4(b)(11) or under regulations promulgated
under title IV or title V of the Act for the permitting of affected
sources under the acid rain program, the program shall provide that
the permitting authority take final action on each permit application
(including a request for permit modification revision or renewal)
within 18 months, or such lesser time approved by the Administrator,
after receiving a complete application. However, the permitting
authority shall take final action within 12 months on any complete
permit application containing an early reductions demonstration.
(3) The program shall also contain reasonable procedures to
ensure priority is given to taking action on applications for
construction or modification under title I, parts C and D of the Act.
(4) The permitting authority shall promptly provide notice to
the applicant of whether the application is complete. Unless the
permitting authority requests additional information or otherwise
notifies the applicant of incompleteness within 60 days of receipt of
an application, the application shall be deemed complete. For
modifications revisions that qualify for and are processed through
minor permit modification the procedures, such as those in of
paragraphs (e)(2) and (3), (f), or (g) of this section, the State
program need not require a completeness determination.
(5) The permitting authority shall provide a statement that sets
forth the legal and factual basis for the draft permit conditions
(including references to the applicable statutory or regulatory
provisions). The permitting authority shall send this statement to
EPA and to any other person who requests it.
(6) The submittal of a complete application shall not affect the
requirement that any source have a preconstruction permit under title
I of the Act.
(7) Any new applicable requirement approved or promulgated by
EPA that becomes applicable to a source prior to issuance of a draft
permit (whether during issuance or renewal) shall be included in the
draft permit. If any new applicable requirement becomes applicable
after issuance of a draft permit, and the requirement is not reflected
in the draft permit, the permit may be issued without incorporating
the new applicable requirement, provided that the permitting authority
institutes proceedings no later that the date of permit issuance to
reopen the permit consistent with paragraph (i) of this section to
incorporate the new applicable requirement and that the permit
contains a statement that it is being reopened for this purpose.
(b) Requirement for a permit. Except as provided in the
following sentence, 70.4(b)(12)(i), and paragraphs (e)(2)(v) and
(3)(v), (f), and (g) of this section, no part 70 source may operate
after the time that it is required to submit a timely and complete
application under an approved permit program, except in compliance
with a permit issued under a part 70 program. The program shall
provide that, if a part 70 source submits a timely and complete
application for permit issuance (including for renewal), the source's
failure to have a part 70 permit is not a violation of this part until
the permitting authority takes final action on the permit application,
except as noted in this section. This protection shall cease to apply
if, subsequent to the completeness determination made pursuant to
paragraph (a)(4) of this section, and as required by 70.5(a)(2), the
applicant fails to submit by the deadline specified in writing by the
permitting authority any additional information identified as being
needed to process the application.
(c) Permit renewal and expiration.
(1) The program shall provide that:
(i) Permits being renewed are subject to the same procedural
requirements, including those for public participation, affected State
and EPA review, that apply to initial permit issuance; and
(ii) Permit expiration terminates the source's right to operate
unless a timely and complete renewal application has been submitted
consistent with paragraph (b) of this section and 70.5(a)(1)(iii).
(2) If the permitting authority fails to act in a timely way on
a permit renewal, EPA may invoke its authority under section 505(e) of
the Act to terminate or revoke and reissue the permit.
(ed) Permit modification revisions. A permit modification is
any revision to a part 70 permit that cannot be accomplished under the
program's provisions for administrative permit amendments under
paragraph (d) of this section. A permit modification for purposes of
the acid rain portion of the permit shall be governed by regulations
promulgated under title IV of the Act.
(1) Program description. Changes requiring a revision of a part
70 permit are those that could not be operated without violating an
existing permit term or rendering the source subject to an applicable
requirement to which the source has not been previously subject. The
State shall provide adequate, streamlined, and reasonable procedures
for expeditiously processing permit modifications revisions. The
State may meet this obligation by adopting the procedures set forth
below in paragraphs (e), (f), (g), and (h) of this section and in
70.4(b)(14) or ones substantially equivalent. The State may also
develop different procedures for different types of modifications
revisions depending on the significance and complexity of the
requested modification revision, but EPA will not approve a part 70
program that has modification permit revision procedures that provide
for less permitting authority, EPA, or affected State review or public
participation than is provided for in this part. A permit revision
for purposes of the acid rain portion of the permit shall be governed
by regulations promulgated under title IV of the Act.
(d)(e) Administrative permit amendments (1) An "administrative
permit amendment" is a permit revision that:
(i) Corrects typographical errors;
(ii) Identifies a change in the name, address, or phone number
of any person identified in the permit, or provides a similar minor
administrative change at the source;
(iii) Requires more frequent testing, monitoring, recordkeeping,
or reporting by the permittee;
(iv) Allows for a change in ownership or operational control of
a source where the permitting authority determines that no other
change in the permit is necessary, provided that a written agreement
containing a specific date for transfer of permit responsibility,
coverage and liability between the current and new permittee has been
submitted to the permitting authority;
(v) Incorporates into the part 70 permit the requirements from
preconstruction review permits authorized under an EPA-approved
program, provided that such a program meets procedural requirements
substantially equivalent to the requirements of 70.7 and 70.8 of
this part that would be applicable to the change if it were subject to
review as a permit modification, and compliance requirements
substantially equivalent to those contained in 70.6 of this part; or
(vi)(v) Incorporates any other type of change which the
Administrator has determined as part of the approved part 70 program
to be similar to those in paragraphs (d)(e)(1)(i) through (iv) of this
section;
(v)(vi) Incorporates into the part 70 permit the requirements
from of a minor NSR or major NSR preconstruction permit or decision or
a section 112(g) determination preconstruction review permits
authorized under an EPA-approved program, provided that such a program
meets permit or determination was issued in accordance with procedural
requirements substantially equivalent to the requirements of 70.7
and 70.8 paragraph (e)(4) of this part section that would be
applicable to the change if it were subject to review as a permit
modification, and contains compliance requirements substantially
equivalent to those contained in required under 70.6 of this part.
(vii) Notwithstanding the provisions of paragraph (e)(1)(vi) of
this section, incorporates a standard promulgated after permit
issuance pursuant to section 112 of the Act.
(2) Administrative permit amendments for purposes of the acid
rain portion of the permit shall be governed by regulations
promulgated under title IV of the Act.
(3) Administrative permit amendment procedures for changes
meeting the criteria under 70.7(e)(1)(i-v). An administrative
permit amendment may be made consistent by the permitting authority
consistent with the following:
(i) The permitting authority shall take no more than 60 days
from receipt of a request for an administrative permit amendment to
take final action ... provided that it designates any such permit
revisions as having been made pursuant to this paragraph.
(ii) The permitting authority shall submit a copy of the revised
permit to the Administrator.
(iii) The source may implement the change addressed in the
request for an administrative amendment immediately upon submittal of
the request.
Changes meeting the criteria set forth in paragraphs (e)(1)(i-v) of
this section may be made to a permit using the following procedures:
(i) The source shall submit to the permitting authority an
application containing a proposed addendum to the source's part 70
permit. The application shall demonstrate how the proposed change
meets one of the criteria for administrative amendments set forth in
paragraphs (e)(1)(i-v) of this section, and include certification by
the responsible official consistent with 70.5(d) of this part that
the change is eligible for administrative amendment procedures. The
addendum shall:
(A) Identify the terms of the existing part 70 permit that it
proposes to change;
(B) Propose new permit terms consistent with the provisions of
this part applicable to the change;
(C) Designate the addendum as having been processed under the
procedures of this paragraph; and
(D) Specify that the addendum will be effective 60 days from the
date of permitting authority receipt unless the permitting authority
disapproves the change within such period.
(ii) The permitting authority may allow the source to implement
the requested change immediately upon making all required submittals,
including the proposed addendum.
(iii) The proposed addendum may become effective 60 days after
the permitting authority receives the submittal, provided the
permitting authority has not disapproved the request in writing before
the end of the 60-day period. The permitting authority shall record
the change by attaching a copy of the addendum to the existing part 70
permit and shall provide the Administrator with a copy of the
addendum.
(iv) If the permitting authority disapproves the change, it
shall notify the source of its reasons for disapproving the change in
a timely manner. Upon receiving such notice, the source shall comply
with the terms of the permit that it had proposed to change, and
thereafter the proposed addendum shall not take effect. The
permitting authority may approve a permit addendum for an
administrative permit amendment that varies from the source's
application without rendering the source liable for violating its
existing permit if the permitting authority's revisions are not
necessary to make the request eligible for administrative amendment
procedures and do not change the applicant's proposed determination of
which applicable requirements of the Act apply to the source as a
result of the requested change and if the source demonstrates to the
satisfaction of the permitting authority its compliance with the
applicable requirement to which it is subject as a result of the
change. However, the source would remain liable for any violations of
the requirements which are applicable as a result of the change and
the source's proposed permit revision.
(v) The process in paragraph (e)(3) of this section may also be
used for changes initiated by the permitting authority that meet the
criteria under paragraphs (e)(1)(i), (ii), and (iv) of this section.
For such changes, the permitting authority shall notify the source of
the proposed change and its effective date, and shall attach a copy of
the change to the existing permit. On the effective date of the
proposed change, the source shall comply with the provisions of the
proposed change.
(vi) The permit shield under 70.6(f) of this part may not
extend to administrative amendments processed under this paragraph
(e)(3).
(4) The permitting authority may, upon taking final action
granting a request for an administrative permit amendment, allow
coverage by the permit shield in 70.6(f) for administrative permit
amendment made pursuant to paragraph (d)(1)(v) of this section which
meet the relevant requirements of 70.6, 70.7 and 70.8 for
significant permit modifications.
(4) Administrative amendment procedures for changes meeting the
criteria under 70.7(e)(1)(vi). A change meeting the criteria of
70.7(e)(1)(vi) may be made to a permit using the procedures in the
following paragraphs (e)(4)(i-v) of this section.
(i) An applicant shall submit prior to construction (including
modification), a permit application meeting the requirements for
applications of minor NSR, major NSR, section 112(g) determinations
under the Act, and paragraph (e)(3)(i) of this section. The
application must:
(A) Specify draft permit terms governing construction of any
proposed new or modified emissions unit or combination thereof,
including all applicable requirements;
(B) Inform the permitting authority that the source is
requesting to modify the part 70 permit using the process under this
paragraph;
(C) Include a proposed addendum to the part 70 permit that
identifies the terms of the existing part 70 permit that will change
and the draft terms and conditions which will govern operation of the
new or modified unit consistent with part 70 (including compliance
requirements consistent with 70.6) and any notice requirements
contained in paragraph (e)(4)(ii) of this section, and that
incorporates relevant terms and conditions from the proposed minor NSR
or major NSR or section 112(g) action; and
(D) Include an affidavit signed by a responsible official
stating that the source accepts all liability of making the requested
change prior to final permitting authority action to revise the
source's permit.
(ii) For any minor NSR, major NSR, or section 112(g) action and
part 70 permit addendum proposed for approval under this paragraph
(e)(4), the permitting authority shall:
(A) Provide a comment period for the public and affected States
prior to construction of the change of at least 30 days or,in the case
of minor NSR, as many days as required by the approved implementation
plan as of November 15, 1993, but not less than 15 days. Where a
minor NSR action includes a netting transaction involving either a
single emissions increase above applicable title I modification
significance levels or a sum of increases above applicable major
source thresholds, a public comment period of at least 30 days must be
provided for a change to qualify for processing under this paragraph;
(B) Provide notice and a copy of the application filed pursuant
to paragraph (e)(4)(i) of this section to EPA by the beginning of the
public comment period;
(C) Issue a minor NSR or major NSR permit or determination or
issue a section 112(g) determination and an addendum to the part 70
permit for the operation of the change if it determines the
requirements of the applicable minor NSR, major NSR, or section 112(g)
review program and part 70 have been met; and
(D) Provide an opportunity for EPA objection consistent with the
provisions of 70.8(c), starting either upon receipt of the notice
described under paragraphs (e)(4)(ii)(D)(1) or (2) of this section as
applicable or from the date the permitting authority made its final
minor NSR, major NSR, or section 112(g) determination, whichever is
later.
(1) For changes approved by the permitting authority under major
NSR or section 112(g) review, the source shall provide a notice to EPA
and the permitting authority which must be postmarked at least 21 days
before the anticipated date of initial startup of the new or modified
source. For such changes, the source may commence operation at the
end of the 21-day period, unless EPA objects in writing to the
proposed change within the 21-day period. Upon notification of such
objection, the source may not operate such a change and must comply
with the terms and conditions of the permit that it sought to change.
(2) For changes approved by the permitting authority under minor
NSR, the source shall notify EPA and the permitting authority of the
anticipated date for startup of the change. The source may commence
operation of such a change upon postmark of such notice.
(iii) The proposed part 70 permit addendum may become effective
45 days after EPA receives notice under paragraph (e)(4)(ii)(D) of
this section or 45 days from the date the permitting authority makes
its final preconstruction determination, whichever is later, provided
that by the end of such period EPA has not objected to the change.
(iv) If EPA objects to the change, EPA shall notify the
permitting authority and the source of its reasons for objecting to
the change. Upon receiving such notice, the source shall comply with
the terms of the permit that it had proposed to change, and thereafter
the proposed addendum shall not take effect. If, subsequent to source
implementation of the requested change, EPA objects to the change, the
source shall be liable for having operated in violation of its
existing permit from the time it implemented the change.
Notwithstanding the preceding sentence, the permitting authority may
revise a proposed addendum making an administrative permit amendment
in response to an EPA objection without rendering the source liable
for violating its existing permit if the permitting authority's
revisions are not necessary to make the change eligible for
administrative amendment procedures and do not change the applicant's
proposed determination of which applicable requirements apply to the
source as a result of the requested change and if the source
demonstrates to the satisfaction of the permitting authority its
compliance with the applicable requirement to which it is subject as a
result of the change. However, the source would remain liable for any
violations of the requirements which are applicable as a result of the
change and the source's proposed permit revision.
(v) The permitting authority may provide a permit shield
consistent with the provisions of 70.6(f).
(5) Administrative permit amendment procedures for changes
meeting the criteria under 70.7(e)(1)(vii). Changes meeting the
criteria set forth in paragraphs (e)(1)(vii) of this section may be
made to a permit using the following procedures:
(i) After receipt of the initial notification required under the
section 112 standard, the permitting authority shall prepare a
proposed addendum to the source's part 70 permit. The addendum shall
contain the following:
(A) A statement that the section 112 standard is an applicable
requirement for the permitted source.
(B) A schedule of compliance, consistent with 70.5(c)(9).
(C) A requirement to submit any implementation plan or report
required under the standard.
(D) A requirement to apply for a minor permit revision by the
deadline for the compliance statement, unless the source is exempted
from this requirement by the rulemaking promulgating the applicable
section 112 standard. If the source is utilizing an alternative
requiring case-by-case approval, such as emissions averaging, the
source shall apply for a significant permit revision in lieu of the
minor permit revision required in the preceding sentence. If the
compliance statement deadline is within 6 months of the end of the
permit term, the source may incorporate its application for the
revisions into its application for permit renewal, in lieu of applying
for revisions by the compliance statement deadline.
(E) Any other provisions required to be incorporated into the
permit by the applicable section 112 standard.
(ii) The permitting authority shall make available for public
review and comment for at least 30 days a list of sources whose
permits are reopened under this paragraph. Notice of the availability
of the list shall be given by such time as to assure that any
additional administrative amendments for sources subject to the
standard and not on the list take effect within 18 months after
promulgation of the section 112 standard. If after considering public
comment, the permitting authority determines that permits for other
sources must be reopened to incorporate section 112 standards, it
shall notify such sources of its intent to do so at least 30 days
before reopening the permit, and may use the provisions of this
paragraph.
(iii) The proposed addendum shall become effective not later
than 18 months after promulgation of the section 112 standard. The
permitting authority shall attach a copy of the addendum to the
existing part 70 permit and shall provide the Administrator with a
copy.
(iv) The permitting authority shall, as soon as practicable,
place all information required to be submitted by the permit with
respect to the section 112 standard in a docket accessible to the
public.
(v) The permit shield under 70.6(f) of this part may not extend
to administrative amendments processed under this paragraph (e)(5).
(f) De minimis permit revisions. (1) A de minimis permit
revision may be made by the permitting authority to a part 70 permit
provided that the permit contains a term or condition authorizing the
source to make use of de minimis permit revision procedures for
qualifying changes at the applicable unit and such term or condition
was established during permit issuance or renewal, or under permit
revision procedures contained in paragraph (h) of this section, and
provided the action taken meets the criteria and procedures specified
in this paragraph (f).
(2) Criteria. For the change to be considered eligible for de
minimis permit revision procedures, the conditions in paragraph
(f)(2)(i) of this section and the applicable conditions and limits in
paragraphs (f)(2)(ii) and (iii) of this section must be met. The
limits in paragraphs (f)(2)(ii) and (iii) of this section are on a
single pollutant basis except where a combination of hazardous air
pollutants is indicated.
(i) Conditions limiting de minimis changes. (A) The source
must not be in violation of the part 70 permit terms and conditions it
seeks to change.
(B) In the case of existing units, the need for a permit
revision must result from a physical or operational change. (OPTION:
ADD TO END OF SENTENCE: , unless the permit revision solely involves
monitoring or recordkeeping requirements.)
(C) (OPTION: ADD TO BEGINNING OF SENTENCE: Except for permit
revisions solely involving monitoring or recordkeeping requirements,)
The change may not involve a permit term or condition established to
limit emissions which is federally enforceable only as a part 70
permit term or condition.
(D) De minimis emission threshold levels cannot be met by
offsetting emission increases with emission decreases at the same
source.
(OPTION: ADD NEW PARAGRAPHS: (E) The change may not involve a
change to monitoring or recordkeeping requirements unless, prior to
the source's submission of a de minimis permit revision application,
the permitting authority affirmatively determines that the monitoring
or recordkeeping change has been demonstrated by the source:
(1) To not affect the capability of the method to measure
emission results as precisely, accurately, and timely as is provided
by the existing monitoring or recordkeeping method;
(2) To only affect a single source or facility; and
(3) To not constitute a new or alternative monitoring method or
represent a new operating level of the method.
(F) The criteria for all demonstrations required under paragraph
(f)(2)(i)(E) of this section shall include, in addition to the
requirements of paragraph (f)(3)(C) of this section, an analysis
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(c) utilizing
appendices A, B, C and D, and related appendices' procedures of 40 CFR
part 64.)
(ii) Unit-based change limits. For a change at any emissions
unit to qualify as a unit-based de minimis permit revision, the total
emissions of an entirely new unit and the total emissions at an
existing unit after the change (i.e., the sum of the existing
emissions before the change plus the emissions increase that results
from the change) may not exceed:
(A) For criteria pollutants:
ALTERNATIVE 1:
The following emissions over the life of the permit:
(1) 4 tons of CO;
(2) 1 ton of NOx;
(3) 1.6 tons of SO2;
(4) .6 tons of PM-10;
(5) 1 ton of VOC;
ALTERNATIVE 2:
20% of the applicable major source threshold, or 5 tpy of VOC or
NOx, whichever is greater, but in no event no more than 15 tpy PM-10
or 0.6 tpy lead;
ALTERNATIVE 3:
5 tpy;
ALTERNATIVE 4:
30% of the applicable major source threshold or 5 tpy, whichever
is greater;
OR
A unit size established by a State for use within that State,
where the State can show that, of the estimated annual emissions of
units subject to minor and major NSR in the State, 80% or more of the
emissions of those units would be from units above that level.
(B) For HAP's:
ALTERNATIVE 1:
0 tpy;
ALTERNATIVE 2:
20% of the section 112 major source thresholds or 50% of the
section 112(g) de minimis levels, whichever is less;
ALTERNATIVE 3:
75% of section 112(g) de minimis levels.
(C) For other pollutants regulated only under section 111 of the
Act, the significance levels in 52.21(b)(23)(i) of part 52 of this
chapter.
(iii) Increment-based change limits. A change at any emissions
unit not qualifying for a unit-based change may still qualify as a de
minimis permit revision if the following criteria are met:
(A) Additional conditions: (1) Any resulting emissions limit
must be expressed in the same form and units of measure as the
previous emissions limit;
(2) Any associated re-calibration of continuous emissions
monitors (CEM) or operational parameters must be undertaken in
accordance with emission rates-to-CEM or operational parameter ratios
established in the operating permit program, in the source's permit,
or through permit issuance procedures providing at least as much
permitting authority, EPA, and affected State review and public
participation as minor permit revision procedures; (OPTION: DELETE
PREVIOUS PARAGRAPH (2).)
(B) Size restrictions on individual change. No emissions
increase at any unit may exceed:
(1) For criteria pollutants:
ALTERNATIVE 1:
The following emissions over the life of the permit:
(1) 4 tons of CO;
(2) 1 ton of NOx;
(3) 1.6 tons of SO2;
(4) .6 tons of PM-10;
(5) 1 ton of VOC;
ALTERNATIVE 2:
20% of the applicable major source threshold, 10% of the limit
applicable to the unit undergoing the change, or 15 tpy VOC or NOx,
whichever is less but in no event less than [2 - 5] tpy VOC or NOx or
greater than 15 tpy PM-10 or 0.6 tpy lead;
ALTERNATIVE 3:
30% of applicable major source thresholds, or 15% of the limit
applicable to the unit undergoing the change, whichever is less, but
in no event less than 5 tpy for VOC or NOx.)
OR
A specified incremental amount established by a State for use
within that State, where the State can show that, of the estimated
annual emissions increases subject to minor and major NSR in the
State, 80% or more would be above that level.
(2) For HAP's:
ALTERNATIVE 1:
0 tpy;
ALTERNATIVE 2:
20% of the section 112 major source thresholds, 50% of the de
minimis levels set pursuant to section 112(g) of the Act, or 10% of
the limit applicable to the unit undergoing change, whichever is less;
ALTERNATIVE 3:
75% of section 112(g) de minimis levels.)
(3) For other pollutants regulated only under section 111 of the
Act, the significance levels in 52.21(b)(23)(i) of part 52 of this
chapter.
(3) De minimis permit revision procedures. (i) Application. A
source may submit an application to the permitting authority
requesting the use of de minimis permit revision procedures provided
that the permit contains a term or condition that authorizes the
source to make use of the de minimis permit revision procedures for
qualifying changes, the application meets the requirements of
70.5(c) of this part, and the permit application includes the
following:
(A) A description of the change, the emissions resulting from
the change, and any new applicable requirements that will apply if the
change occurs;
(B) An addendum containing the terms and conditions of the
source's suggested draft permit revision;
(C) A demonstration that the proposed change meets the criteria
for a de minimis permit revision; and
(D) Certification by a responsible official consistent with
70.5(c) of this part that:
(1) The source is in compliance with any permit terms or
conditions it seeks to modify;
(2) The proposed modification meets the criteria for use of de
minimis permit revision procedures; and
(3) The source accepts all liability of making the requested
change prior to final permitting authority action to revise the
source's permit.
(OPTION: ADD NEW PARAGRAPH: (E) A summary of any required
demonstration performed in accordance with paragraphs (f)(2)(i)(E) and
(F) of this section, and verification of such demonstration's
affirmative approval by the permitting authority.)
(ii) The permitting authority may allow the source to implement
the requested change 7 days after the permitting authority's receipt
of the source's de minimis permit revision application. At its
discretion, the permitting authority may grant a request by the source
to implement the change after less than 7 days.
(iii) Public notification. Public notice shall be given of de
minimis permit revision applications received by the permitting
authority on a monthly, batched basis. (OPTION: ADD TO END OF
PARAGRAPH: In addition, for permit revisions involving changes to
monitoring or recordkeeping requirements, the permitting authority
shall also submit to the publicly available docket the complete
demonstration required by paragraphs (f)(2)(i)(E) and (F) of this
section, a summary of the demonstration, and an affirmative statement
of the demonstration's adequacy.)
(iv) Permit amendment. The permit is revised by attaching the
proposed addendum to the permit with the addendum specifying when the
permit revision takes effect consistent with the following provisions.
(A) Where the permitting authority affirmatively approved the
change pursuant to a preconstruction review process that included at
least a 21-day public comment period and the permitting authority
authorized the change to be made under the de minimis permit revision
process, the addendum shall take effect upon submission of a complete
de minimis permit revision application.
(B) Where the permitting authority did not affirmatively approve
the change pursuant to a preconstruction review that provided for at
least a 21-day public comment period, the addendum shall take effect
(30-90) days after the date public notice was given under paragraph
(f)(3)(iii) of this section if the permitting authority does not
disapprove the request within that time period. The permitting
authority shall retain the authority to disapprove such a change made
through the de minimis permit revision process for a period of (30-90)
days following the date public notice was given under paragraph
(f)(3)(iii) of this section.
(v) EPA and affected State notification. The permitting
authority shall send a copy of the addendum to the permit to EPA and
any affected State within 7 days of the date the addendum takes
effect.
(vi) Public request for disapproval. (A) Within (15-45) days
of the date public notification was given, any person may request that
the permitting authority disapprove the change if the permitting
authority retained authority to disapprove the de minimis permit
revision as described under paragraph (f)(3)(iv)(B) of this section.
(B) Where the permitting authority was not required to retain
authority to disapprove the de minimis permit revision, the public may
petition the permitting authority to revoke the permit revision
allowing the change.
(vii) Petitions to EPA. The public may petition EPA to object to
the change within 60 days after the end of the (30-90) day disapproval
period as described in paragraph (f)(3)(iv)(B) of this section where
the permitting authority does not grant a request to disapprove the
change.
(4) Source liability. If, after a source makes the requested
change, the permitting authority disapproves the change or EPA objects
to the change, the source shall be liable for having operated in
violation of its existing permit from the time at which the source
made the change. Notwithstanding the preceding sentence, the
permitting authority may issue a permit addendum that varies from the
source's proposed addendum without rendering the source liable for
violating its existing permit if the proposed addendum includes
enforcement terms sufficient to support an enforcement action and the
permitting authority's revisions are not necessary to make the change
eligible for de minimis permit revision procedures and do not change
the applicant's determination of which requirements of the Act apply
to the source as a result of the requested change. The source would
remain liable for any violations of the requirements which are
applicable as a result of the change and the source's proposed permit
revision.
(5) The permit shield under 70.6(f) of this part may not
extend to de minimis permit revisions.
(2g) Minor permit modification revision procedures.
(i1) Criteria. (Ai) Minor permit modification revision
procedures may be used only for those permit modifications revisions
that:
(A) Do not affect permit terms or conditions that the source is
violating.
(1) Do not violate any applicable requirement;
(2B) Do not involve significant changes to existing monitoring,
reporting, or recordkeeping requirements in the permit, unless such
changes are necessary to implement other changes that qualify for
minor permit revision procedures; (OPTION: REPLACE PARAGRAPH (B)
WITH THE FOLLOWING: (B) Involve changes to monitoring or
recordkeeping requirements that are:
(1) Changes in the enforceable operating level of the method
that, prior to the source's submission of a minor permit revision
application, the permitting authority has affirmatively determined the
source has demonstrated to be correlated to the source's existing or
proposed compliance emissions rate, but such changes may not involve a
switch to a new or alternative monitoring or recordkeeping operating
parameter;
(2) Changes to a monitoring or recordkeeping method that affect
the measurement sensitivity of the method and representativeness of
the data (e.g., precision, accuracy, measurement location, or
averaging time) such that there may be a measurable effect in relation
to the relevant source compliance emissions rate; changes that affect
the scope and intent of the existing monitoring method (e.g., modified
sample conditioning system, upgraded detector, upgraded data
management system); or changes that may be generally applicable to
similar monitoring methods in the same or other source categories
(e.g., equipment modification for interference avoidance). Such
changes may not involve a switch to new or alternative monitoring
methods. Prior to the source's submission of a minor permit revision
application, the permitting authority shall have affirmatively
determined that the monitoring or recordkeeping change has been
demonstrated by the source to have a known relationship and ability to
determine compliance with the applicable source compliance emissions
rate; or
(3) Changes to monitoring or recordkeeping methods that have
been approved pursuant to major or minor NSR and that are demonstrated
therein to have a known relationship and ability to determine
compliance with the applicable source compliance emissions rate. The
application for the minor permit revision must include supporting
documentation from the major or minor NSR permit approval, information
regarding the demonstration and approval of the requested monitoring
or recordkeeping method, and information in accordance with
70.7(g)(2) of this part as related to the monitoring change.)
(3) Do not require or change a case-by-case determination of an
emission limitation or other standard, or a source-specific
determination for temporary sources of ambient impacts, or a
visibility or increment analysis;
(C) Do not involve or depend on netting transactions undertaken
to avoid being subject to preconstruction review under parts C or D of
title I of the Act unless such emissions reductions:
(1) Have been approved pursuant to a minor NSR process for which
a 30-day public comment period was provided; or
(2) Do not involve any single emissions increase that exceeds
the applicable threshold for being a major modification under parts C
or D of title I of the Act, and the sum of all the contemporaneous
increases does not exceed the applicable threshold for determining
whether the change is major;
(D) Do not involve offsets or modifications under section 112(g)
of the Act, unless the change has been approved pursuant to a section
112(g) review process;
(E) Are not modifications subject to parts C or D of title I of
the Act, unless the change has been approved pursuant to major NSR and
would incorporate all applicable requirements determined therein into
the part 70 permit;
(4)(F)) (OPTION: ADD TO BEGINNING OF SENTENCE: Except for
permit revisions solely involving monitoring or recordkeeping
requirements, ) Do not seek to establish or change a permit term or
condition established to limit emissions which is federally
enforceable only as a part 70 permit term or condition for which there
is no corresponding underlying applicable requirement and that the
source has assumed to avoid an applicable requirement to which the
source would otherwise be subject. Such terms and conditions include,
but are not limited to:
(A)(1) A federally-enforceable emissions cap assumed in the part
70 permit to avoid classification as a modification under any
provision of title I of the Act; and
(2) An alternative emission limit established under the
provisions of 70.6(a)(1)(iii) equivalent to a requirement contained
in an applicable implementation plan.
(B)(3) An alternative emissions limit established in the part 70
permit pursuant to regulations promulgated under section 112(i)(5) of
the Act;
(4) An emissions limit established in the part 70 permit
pursuant to regulations promulgated under section 112(j) of the Act;
and
(5) Are not modifications under any provision of title I of the
Act; and Any other term or condition for which there is no
corresponding underlying applicable requirement and the establishment
of which allows the source to avoid an applicable requirement to which
the source would otherwise be subject.
(6)(G) Are not required by the State program to be processed as
a significant modification permit revision.
(Bii) Notwithstanding paragraphs (eg)(21)(i)(A) and (e)(3)(i) of
this section, minor permit modification revision procedures may be
used for permit modifications revisions involving the use of economic
incentives, marketable permits, emissions trading, and other similar
approaches, to the extent that such minor permit modification revision
procedures are explicitly provided for in an applicable implementation
plan or in applicable requirements promulgated by EPA.
(OPTION: ADD NEW PARAGRAPH: (iii) Any demonstration required
by paragraph (g)(1)(i)(B) of this section shall include an analysis
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(c) utilizing
appendices A, B, C, and D and related appendices of 40 CFR part 64.)
(ii2) Application. An application requesting the use of minor
permit modification revision procedures shall meet the requirements of
70.5(c) of this part and shall include the following:
(Ai) A description of the change, the emissions resulting from
the change, and any new applicable requirements that will apply if the
change occurs;
(Bii) An addendum containing the terms and conditions of tThe
source's suggested draft permit revision;
(iii) A demonstration that the proposed change is eligible to be
processed as a minor permit revision;
(Civ) Certification by a responsible official, consistent with
70.5(d) of this part, that:
(A) tThe proposed modification change meets the criteria for use
of minor permit modification revision procedures and a request that
such procedures be used; and
(D) Completed forms for the permitting authority to use to
notify the Administrator and affected States as required under 70.8.
(B) The source is in compliance with the permit terms or
conditions it seeks to modify;
(C) Public notice of the proposed revision has been provided
pursuant to paragraph (g)(3) of this section; and
(D) Notice to the Administrator and affected States of the
proposed revision has been provided pursuant to paragraph (g)(4) of
this section; and
(v) An affidavit signed by a responsible official stating that
the source accepts all legal risks of making the requested change
prior to final permitting authority action to revise the source's
permit.
(OPTION: ADD NEW PARAGRAPH: (vi) For a change involving
changes to monitoring or recordkeeping requirements, a summary of any
demonstration required by paragraph (g)(1)(i)(B) and performed in
accordance with paragraph (g)(1)(iii) of this section and verification
of its approval by the permitting authority. If in approving the
demonstration the permitting authority determines that subsequent
verification testing of the change is necessary, the permitting
authority may establish a compliance schedule for performing
verification testing to further demonstrate, consistent with paragraph
(g)(1)(iii) of this section, the adequacy of the change. Such
compliance schedule, after approval by the permitting authority, shall
be attached to the addendum described in paragraph (g)(2)(ii) of this
section and be processed as a permit term and shall not allow the
source to begin verification testing in advance of the time when the
source would be allowed to implement the minor permit revision
requested change. The approved compliance schedule shall include a
commitment by the source to provide the results of the verification
testing to the permitting authority within 90 days of submittal of the
minor permit revision application. Upon receipt of the verification
testing results, the permitting authority shall determine whether the
results demonstrate the adequacy of the change consistent with
paragraph (g)(1)(iii) of this section. The permitting authority shall
promptly notify the source in writing of its determination, and place
a copy of such notice in the public docket. The permit shield under
section 70.6(f) of this part may extend to minor permit revisions
involving monitoring or recordkeeping changes only after any required
further verification testing of the change has been completed.)
(3) Public notification. (i) Immediately upon filing an
application for a minor permit revision, the source shall provide
notice to the public of the requested minor permit revision by:
(A) Publication of a notice in a newspaper of general
circulation in the area where the source is located or in a State
publication designed to give the general public notice; and
(B) Sending a letter to persons on a mailing list developed by
the permitting authority, including those who previously participated
in any public comment process provided for the source's permit and
those who request to be placed on a list to receive notification of
permit issuance, revision, reopening, or renewal requests.
(ii) In addition to the elements required under 70.7(k)(2) of
this part, the public notice shall describe the requested change and
state that if no germane and non-frivolous objection to the requested
change is received by the permitting authority within 21 days of
publication of the notice, the source may implement the change without
the permitting authority providing further opportunity for public
participation. For purposes of this paragraph, a germane objection is
one that objects to the use of minor permit revision procedures for
the requested change on the grounds that the source has failed to
comply with the procedural and notification requirements of paragraphs
(g)(3) and (g)(4) of this section or that the requested change is
ineligible for the use of minor permit revision procedures under
paragraph (g)(1)(i) of this section. For purposes of this paragraph,
a non-frivolous objection must specify the basis for its objection and
present factual or other relevant information in support of its
objection.
(iii) The permitting authority shall place a copy of the minor
permit revision request in a public docket. (OPTION: ADD A NEW
SENTENCE: The permitting authority shall also place in the docket any
complete demonstration required by 70.7(g)(1)(i)(B) of this part, a
summary of the demonstration, the permitting authority's analysis of
the demonstration, and an affirmative statement of the demonstration's
adequacy.)
(iii4) EPA and affected State notification. Within 5 working
days of receipt of a complete permit modification application, the
permitting authority shall meet its obligation under 70.8(a)(1) and
(b)(1) toImmediately upon filing an application for a minor permit
revision, the source shall notify the Administrator and affected
States of the requested permit modification revision in the same
manner and subject to the same conditions required of permitting
authorities under sections 70.8(a)(1) and (b)(1) of this part. Such
notification shall relieve the permitting authority of the requirement
to provide notice to the Administrator and affected States of the
requested minor permit revision under sections 70.8(a)(1) and (b)(1)
of this part, but shall not relieve the permitting authority of the
requirement to promptly send to the Administrator any notice under
70.8(b)(2) of this part.The permitting authority promptly shall send
any notice required under 70.8(b)(2) to the Administrator.
(iv5) Timetable for issuance. The permitting authority may not
issue a final permit modification until after EPA's 45-day review
period or until EPA has notified the permitting authority that EPA
will not object to issuance of the permit modification, whichever is
first, although the permitting authority can approve the permit
modification prior to that time. Within 90 days of the permitting
authority's receipt of an application under minor permit modification
procedures or 15 days after the end of the Administrator's 45-day
review period under 70.8(c), whichever is later, the permitting
authority shall:
(A) Issue the permit modification as proposed;
(B) Deny the permit modification application;
(C) Determine that the requested modification does not meet the
minor permit modification criteria and should be reviewed under the
significant modification procedures; or
(D) Revise the draft permit modification and transmit to the
Administrator the new proposed permit modification as required by
70.8(a). Upon receipt of an application for a minor permit
revision, the permitting authority shall provide at least 21 days for
public comment on the requested change, and shall keep a record of the
commenters and the issues raised during the public comment period so
that the Administrator may fulfill his or her obligation under
70.8(d) of this part to determine whether a citizen petition may be
granted. Such records shall be made available to the public. The
minor permit revision shall occur according to the following
procedures:
(i) If the permitting authority receives no public objection to
the requested change within 21 days of publication of the public
notice, the source may implement the requested change on the 22nd day
after publication of the public notice, provided that:
(A) The permitting authority has neither denied the minor permit
revision application nor determined that the requested revision does
not meet the minor permit revision criteria and should be reviewed
under significant permit revision procedures; and
(B) The Administrator has not objected to the proposed minor
permit revision.
(ii) If the permitting authority receives a public objection to
the requested change within 21 days after publication of the public
notice, the permitting authority must determine within 28 days of
publication of the public notice whether the objection is germane and
non-frivolous, and proceed according to the following procedures:
(A) If the permitting authority within 28 days of public
notification finds the public objection to be either frivolous or not
germane, the permitting authority may respond to the public objection
in the course of processing the minor permit revision request as a
minor permit revision application, and the source may implement the
requested change on the 29th day after publication of the public
notice or upon notification from the permitting authority that the
permitting authority has determined the public objection to be
frivolous or not germane, whichever is first, provided that:
(1) The permitting authority has neither denied the minor permit
revision application nor determined that the request fails to meet the
minor permit revision criteria and should be reviewed under
significant permit revision procedures; and
(2) The Administrator has not objected to the proposed minor
permit revision;
(B) If the permitting authority fails to determine within 28
days after publication of the public notice of the request for a minor
permit revision whether a public objection submitted within 21 days of
such notice is germane and non-frivolous, the source may implement the
requested change on the 29th day after publication of the public
notice, provided that:
(1) The permitting authority has neither denied the minor permit
revision application nor determined that the request fails to meet the
minor permit revision criteria and should be reviewed under
significant permit revision procedures; and
(2) The Administrator has not objected to the proposed minor
permit revision;
(C) If the permitting authority finds the public objection to be
germane and non-frivolous, the permitting authority shall not issue a
final minor permit revision for the change, and shall either deny the
minor permit revision application or determine that the requested
change does not meet the minor permit revision criteria and should be
reviewed under significant permit revision procedures. If the
permitting authority continues to process the requested change under
significant permit revision procedures, public notice of the proposed
change must be provided in the manner required for significant permit
revisions under 70.7(k) of this part. Such notice shall provide at
least 30 days for public comment on the requested change, shall
identify the time and place of any hearing that may be held, and shall
include a statement of procedures to request a hearing if a hearing
has not already been scheduled. For purposes of this paragraph, such
a hearing may be held as soon as 14 days after publication of a notice
that the requested change is being processed as a significant permit
revision. The source shall not implement the requested change unless
and until the permitting authority approves it as a significant permit
revision.
(iii) Any person who filed a public objection pursuant to this
paragraph which the permitting authority within 28 days of public
notification does not determine to be germane and non-frivolous may
bring suit in State court to compel action by the permitting authority
and, in accordance with applicable standards for obtaining such relief
under State law, seek an injunction in State court prohibiting the
source from implementing the requested change.
(iv) Where the minor permit revision has not been denied or
required to be reviewed under significant permit revision procedures,
the permitting authority may issue a final minor permit revision after
EPA's 45-day review period has elapsed provided the Administrator has
not objected to the requested change, or after EPA has notified the
permitting authority after the close of the public comment period that
EPA will not object to issuance of the minor permit revision,
whichever is first, provided that the final minor permit revision does
not differ from the draft permit except to the extent any changes to
the draft permit qualify for administrative permit amendment
procedures under 70.7(e) of this part.
(v) Within 60 days after the permitting authority's receipt of
an application for a minor permit revision or 15 days after the
expiration of EPA's 45-day review period, whichever is later, the
permitting authority shall:
(A) Issue the minor permit revision as proposed;
(B) Deny the minor permit revision application;
(C) Determine that the requested revision does not meet the
minor permit revision criteria and should be reviewed under
significant permit revision procedures; or
(D) Revise the draft minor permit revision and, if such revision
includes any changes that do not qualify for processing as
administrative permit amendments under 70.7(e) of this part,
transmit to the Administrator the new proposed permit revision as
required by 70.8(a) of this part.
(vi) Any person who objected to a minor permit revision request
during the public comment period shall be notified by the permitting
authority upon final approval of the request. The permitting
authority shall also place a copy of its final approval decision in
the public docket in which it places minor permit revision requests
when received or provide a substantially equivalent means of public
access to its final decision.
(vi6) Source's ability to make change.
The State program may allow the source to make the change
proposed in its minor permit modification revision application
immediately after it files such applicationin accordance with
paragraph (g)(5) of this section. After the source makes the change
allowed by the preceding sentence, and until the permitting authority
takes any of the actions specified in paragraphs (eg)(25)(v)(A)-D)
through (C) of this section, the source must comply with both the
applicable requirements governing the change and the proposed permit
terms and conditions. During this time period, the source need not
comply with the existing permit terms and conditions it seeks to
modify. However, if the source fails to comply with its proposed
permit terms and conditions during this time period, the existing
permit terms and conditions it seeks to modify may be enforced against
it.
(7) Source liability. If, after a source makes the requested
change but prior to a permitting authority's final action to approve
the change and revise the permit, the Administrator objects to the
proposed minor permit revision or the permitting authority either
denies the minor permit revision or determines that the requested
revision does not meet the minor permit revision criteria and should
be reviewed under significant permit revision procedures, the source
shall be liable for having operated in violation of its existing
permit from the time at which it implemented the requested change.
Notwithstanding the preceding sentence, the permitting authority may
issue a permit revision that varies from the source's application
without rendering the source liable for violating its existing permit
if the permitting authority's revisions are not necessary to make the
change eligible for minor permit revision procedures and do not change
the applicant's proposed determination of which requirements of the
Act apply to the source as a result of the requested change and if the
source demonstrates to the satisfaction of the permitting authority
its compliance with the applicable requirement to which it is subject
as a result of the change. However, the source would remain liable
for any violations of the requirements of the Act applicable as a
result of the change and the source's proposed permit revision.
(OPTION: ADD NEW SENTENCE: If, after the permitting authority's
final action to revise the permit, any verification testing of the new
operating level or revised monitoring approach as required by
paragraph (g)(2)(vi) demonstrates that the new operating level or
revised monitoring approach fails to demonstrate compliance, the
source then shall comply with the monitoring and recordkeeping permit
terms and conditions that applied to the source before the minor
permit revision, the minor permit revision shall be null and void and
cease to have effect, and the source shall be liable for operating in
violation of its permit from the time it implemented the change.)
(vi8) Permit shield. The permit shield under 70.6(f) of this
part may not extend to minor permit modifications revisions, provided
that the permitting authority has taken final action to issue the
minor permit revision as a permit revision.
(3) Group processing of minor permit modifications. Consistent
with this paragraph, the permitting authority may modify the procedure
outlined in paragraph (e)(2) of this section to process groups of a
source's applications for certain modifications eligible for minor
permit modification processing.
(i) Criteria. Group processing of modifications may be used
only for those permit modifications:
(A) That meet the criteria for minor permit modification
procedures under paragraph (e)(2)(i)(A) of this section; and
(B) That collectively are below the threshold level approved by
the Administrator as part of the approved program. Unless the State
sets an alternative threshold consistent with the criteria set forth
in paragraphs (1) and (2), this threshold shall be 10 percent of the
emissions allowed by the permit for the emissions unit for which the
change is requested, 20 percent of the applicable definition of major
source in 70.2, or 5 tons per year, whichever is least. In
establishing any alternative threshold, the State shall consider:
(1) Whether group processing of amounts below the threshold
levels reasonably alleviates severe administrative burdens that would
be imposed by immediate permit modification review, and
(2) Whether individual processing of changes below the threshold
levels would result in trivial environmental benefits.
(ii) Application. An application requesting the use of group
processing procedures shall meet the requirements of 70.5(c) and
shall include the following:
(A) A description of the change, the emissions resulting from
the change, and any new applicable requirements that will apply if the
change occurs.
(B) The source's suggested draft permit.
(C) Certification by a responsible official, consistent with
70.5(d), that the proposed modification meets the criteria for use
of group processing procedures and a request that such procedures be
used.
(D) A list of the source's other pending applications awaiting
group processing, and a determination of whether the requested
modification, aggregated with these other applications, equals or
exceeds the threshold set under paragraph (e)(3)(i)(B) of this
section.
(E) Certification, consistent with 70.5(d), that the source
has notified EPA of the proposed modification. Such notification need
only contain a brief description of the requested modification.
(F) Completed forms for the permitting authority to use to
notify the Administrator and affected States as required under 70.8.
(iii) EPA and affected State notification. On a quarterly basis
or within 5 business days of receipt of an application demonstrating
that the aggregate of a source's pending applications equals or
exceeds the threshold level set under paragraph (e)(3)(i)(B) of this
section, whichever is earlier, the permitting authority promptly shall
meet its obligation under paragraphs (a)(1) and (b)(1) of 70.8 to
notify the Administrator and affected States of the requested permit
modifications. The permitting authority shall send any notice
required under 70.8(b)(2) to the Administrator.
(iv) Timetable for issuance. The provisions of paragraph
(e)(2)(iv) of this section shall apply to modifications eligible for
group processing, except that the permitting authority shall take one
of the actions specified in paragraphs (e)(2)(iv)(A) through (D) of
this section within 180 days of receipt of the application or 15 days
after the end of the Administrator's 45-day review period under
70.8(c), whichever is later.
(v) Source's ability to make change. The provisions of
paragraph (e)(2)(v) of this section shall apply to modifications
eligible for group processing.
(vi) Permit shield. The provisions of paragraph (e)(2)(vi) of
this section shall also apply to modifications eligible for group
processing.
(4h) Significant permit revision modification procedures.
(i1) Criteria. Significant permit revision modification
procedures shall be used for applications requesting permit
modifications revisions that do not qualify as minor permit
modifications administrative amendments, de minimis permit revisions,
or minor permit revisions as administrative amendments. The State
program shall contain criteria for determining whether a change is
significant. At a minimum, every significant change in existing
monitoring permit terms or conditions and every relaxation of
reporting or recordkeeping permit terms or conditions shall be
considered significant. (OPTION: DELETE PRECEDING SENTENCE) Nothing
herein shall be construed to preclude the permittee from making
changes consistent with this part that would render existing permit
compliance terms and conditions irrelevant.
(ii2) The State program shall provide that significant permit
modifications revisions shall meet all requirements of this part,
including those for applications, public participation, review by
affected States, and review by EPA, as they apply to permit issuance
and permit renewal. The permitting authority shall design and
implement this review process to complete review on the majority of
significant permit modifications revisions within 9 months after
receipt of a complete application.
(OPTION: ADD NEW PARAGRAPH: (3) Changes involving new or
alternative monitoring methods that have not been approved pursuant to
major or minor NSR under criteria equivalent to those contained in
this paragraph shall be processed as significant permit revisions.
Permitting authorities may approve such changes only where the new or
alternative monitoring or recordkeeping method is demonstrated to have
a known relationship and ability to determine compliance with the
applicable standard. Such demonstration shall include an analysis
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(e) utilizing
appendices A, B, C, and D, and related appendices' procedures of 40
CFR part 64. The permitting authority shall include the
demonstration and written evidence of the permitting authority's
evaluation of the demonstration in the proposed permit it sends to EPA
for review as required by 70.8.)
(fi) Reopening for cause.
(1) Each issued permit shall include provisions specifying the
conditions under which the permit will be reopened prior to the
expiration of the permit. A permit shall be reopened and revised
under any of the following circumstances:
(i) Additional applicable requirements under the Act become
applicable to a major part 70 source with a remaining permit term of 3
or more years. Such a reopening shall be completed not later than
18 months after promulgation of the applicable requirement. No such
reopening is required if the effective date of the requirement is
later than the date on which the permit is due to expire, unless the
original permit or any of its terms and conditions has been extended
pursuant to 70.4(b)(10)(i) or (ii).
(ii) Additional requirements (including excess emissions
requirements) become applicable to an affected source under the acid
rain program. Upon approval by the Administrator, excess emissions
offset plans shall be deemed to be incorporated into the permit.
(iii) The permitting authority or EPA determines that the permit
contains a material mistake or that inaccurate statements were made in
establishing the emissions standards or other terms or conditions of
the permit.
(iv) The Administrator or the permitting authority determines
that the permit must be revised or revoked to assure compliance with
the applicable requirements.
(2) Proceedings to reopen and issue a permit shall follow the
same procedures as apply to initial permit issuance, and shall affect
only those parts of the permit for which cause to reopen exists, and.
Such reopening shall be made as expeditiously as practicable.
Notwithstanding the preceding sentence, proceedings to reopen for
section 112 standards may use the following procedures:
(i) Where the section 112 standard is promulgated after permit
issuance, administrative amendment procedures under 70.7(e)(5) may be
used.
(ii) Where the section 112 standard is promulgated before permit
issuance and a compliance statement required under the section 112
standard is due after permit issuance, the source shall apply for a
minor permit revision by the compliance statement deadline to
incorporate requirements necessary to assure compliance with the
standard, unless the source is exempted from this requirement under
paragraph (iii) of this section or under the rulemaking promulgating
the section 112 standard. If the source is utilizing alternatives
requiring case-by-case approval, such as emissions averaging, or if
required under the rulemaking promulgating the section 112 standard,
the source shall apply for a significant permit revision by the
compliance statement deadline, in lieu of the requirement in the
preceding sentence to apply for a minor permit revision.
(iii) Sources subject to the following section 112 standards
promulgated as of [DATE OF PUBLICATION] are exempt from the
requirements in (ii) to apply for a minor permit revision: NESHAP for
Industrial Process Cooling Towers.
(3) Reopenings under paragraph (if)(1) of this section shall not
be initiated before a notice of such intent is provided to the part 70
source by the permitting authority at least 30 days in advance of the
date that the permit is to be reopened, except that the permitting
authority may provide a shorter time period in the case of an
emergency. Where reopening for section 112 standards requiring
initial notification by the source, and where the source has provided
such notification to the permitting authority by the applicable date,
the permitting authority need not provide the notice required by the
preceding sentence.
(g)(j) Reopenings for cause by EPA.
(1) If the Administrator finds that cause exists to terminate,
modify, or revoke and reissue a permit pursuant to paragraph(f)(i) of
this section, the Administrator will notify the permitting authority
and the permittee of such finding in writing.
(2) The permitting authority shall, within 90 days after receipt
of such notification, forward to EPA a proposed determination of
termination, modification, or revocation and reissuance, as
appropriate. The Administrator may extend this 90-day period for an
additional 90 days if he finds that a new or revised permit
application is necessary or that the permitting authority must require
the permittee to submit additional information.
(3) The Administrator will review the proposed determination
from the permitting authority within 90 days of receipt.
(4) The permitting authority shall have 90 days from receipt of
an EPA objection to resolve any objection that EPA makes and to
terminate, modify, or revoke and reissue the permit in accordance with
the Administrator's objection.
(5) If the permitting authority fails to submit a proposed
determination pursuant to paragraph (gj)(2) of this section or fails
to resolve any objection pursuant to paragraph (gj)(4) of this
section, the Administrator will terminate, modify, or revoke and
reissue the permit after taking the following actions:
(i) Providing at least 30 days' notice to the permittee in
writing of the reasons for any such action. This notice may be given
during the procedures in paragraphs (gj)(1) through (4) of this
section.
(ii) Providing the permittee an opportunity for comment on the
Administrator's proposed action and an opportunity for a hearing.
(hk) Public participation. Except for modifications revisions
qualifying for minor permit modification revision procedures, de
minimis revision procedures, or administrative amendments, all permit
proceedings, including initial permit issuance, significant permit
revisions modifications, reopenings, and renewals, shall provide
adequate procedures for public notice including offering an
opportunity for public comment and a hearing on the draft permit in
accordance with this paragraph (k) of this section. These procedures
shall include the following:
(1) Notice shall be given: by publication in a newspaper of
general circulation in the area where the source is located or in a
State publication designed to give general public notice; to persons
on a mailing list developed by the permitting authority, including
those who request in writing to be on the list; and by other means if
necessary to assure adequate notice to the affected public;
(2) The notice shall identify the affected facility; the name
and address of the permittee; the name and address of the permitting
authority processing the permit; the activity or activities involved
in the permit action; the emissions change involved in any permit
modification revision; the name, address, and telephone number of a
person from whom interested persons may obtain additional information,
including copies of the permit draft, the application, all relevant
supporting materials, including those set forth in 70.4(b)(3)(viii),
and all other materials available to the permitting authority that are
relevant to the permit decision; a brief description of the comment
procedures required by this part; and the time and place of any
hearing that may be held, including a statement of procedures to
request a hearing (unless a hearing has already been scheduled);
(3) The permitting authority shall provide such
notice and opportunity for participation by affected States as is
provided for by 70.8;
(4) Timing. The permitting authority shall provide at least 30
days for public comment and shall give notice of any public hearing at
least 30 days in advance of the hearing.
(5) The permitting authority shall keep a record of the
commenters and also of the issues raised during the public
participation process so that the Administrator may fulfill his or her
obligation under section 505(b)(2) of the Act to determine whether a
citizen petition may be granted, and such records shall be available
to the public.
70.8 Permit review by EPA and affected States.
(a) Transmission of information to the Administrator.
(1) The permit program shall require that the permitting
authority provide to the Administrator a copy of each permit
application (including any application for permit modification
revision), each proposed permit, and each final part 70 permit. The
applicant may be required by the permitting authority to provide a
copy of the permit application (including the compliance plan)
directly to the Administrator. Upon agreement with the Administrator,
the permitting authority may submit to the Administrator a permit
application summary form and any relevant portion of the permit
application and compliance plan, in place of the complete permit
application and compliance plan. To the extent practicable, the
preceding information shall be provided in computer-readable format
compatible with EPA's national database management system.
(2) The Administrator may waive the requirements of paragraphs
(a)(1) and (b)(1) of this section for any category of sources
(including any class, type, or size within such category) other than
major sources according to the following:
(i) By regulation for a category of sources nationwide, or
(ii) At the time of approval of a State program for a category
of sources covered by an individual permitting program.
(3) Each State permitting authority shall keep for 5 years such
records and submit to the Administrator such information as the
Administrator may reasonably require to ascertain whether the State
program complies with the requirements of the Act or of this part.
(b) Review by affected States.
(1) The permit program shall provide that the permitting
authority give notice of each draft permit to any affected State on or
before the time that the permitting authority provides this notice to
the public under 70.7(h)(e), (f), (g), and (k), except to the
extent 70.7(e)(2) or (3) requires the timing of the notice to be
different.
(2) The permit program shall provide that the permitting
authority, as part of the submittal of the proposed permit to the
Administrator (or as soon as possible after the submittal for minor
permit modification procedures allowed under 70.7(e)(2) or (3)),
shall notify the Administrator and any affected State in writing of
any refusal by the permitting authority to accept all recommendations
for the proposed permit that the affected State submitted during the
public or affected State review period. The notice shall include the
permitting authority's reasons for not accepting any such
recommendation. The permitting authority is not required to accept
recommendations that are not based on applicable requirements or the
requirements of this part.
(c) EPA objection.
(1) Except as provided in 70.7(a)(7), tThe Administrator will
object to the issuance of any proposed permit determined by the
Administrator not to be in compliance with applicable requirements or
requirements under this part. No permit for which an application must
be transmitted to the Administrator under paragraph (a) of this
section shall be issued if the Administrator objects to its issuance
in writing within 45 days of receipt of the proposed permit and all
necessary supporting information.
(2) Any EPA objection under paragraph (c)(1) of this section
shall include a statement of the Administrator's reasons for objection
and a description of the terms and conditions that the permit must
include to respond to the objections. The Administrator will provide
the permit applicant a copy of the objection.
(3) Failure of the permitting authority to do any of the
following also shall constitute grounds for an objection:
(i) Comply with paragraphs (a) or (b) of this section;
(ii) Submit any information necessary to review adequately the
proposed permit; or
(iii) Process the permit under the procedures approved to meet
the requirements of 70.7(h) except for minor permit modifications.
(4) If the permitting authority fails, within 90 days after the
date of an objection under paragraph (c)(1) of this section, to revise
and submit a proposed permit in response to the objection, the
Administrator will issue or deny the permit in accordance with the
requirements of the Federal program promulgated under title V of this
Act.
(d) Public petitions to the Administrator. The program shall
provide that, if the Administrator does not object in writing under
paragraph (c) of this section, any person may petition the
Administrator within 60 days after the expiration of the
Administrator's 45-day review period to make such objection. The
program shall also provide that the public have access to information
concerning the beginning and expiration of EPA's 45-day review period
as required for permit issuance, revisions, reopenings, and renewals
pursuant to 70.7. Any such petition shall be based only on
objections to the permit that were raised with reasonable specificity
during the public comment period provided for in 70.7(h) (e), (f),
(g), or (k), whichever is applicable, unless the petitioner
demonstrates that it was impracticable to raise such objections within
such period, or unless the grounds for such objection arose after such
period. If the Administrator objects to the permit as a result of a
petition filed under this paragraph, the permitting authority shall
not issue the permit until EPA's objection has been resolved, except
that a petition for review does not stay the effectiveness of a permit
or its requirements if the permit was issued after the end of the 45-
day review period and prior to an EPA objection. If the permitting
authority has issued a permit prior to receipt of an EPA objection
under this paragraph, the Administrator will modify, terminate, or
revoke such permit, and shall do so consistent with the procedures in
70.7(gj)(4) or (5)(i) and (ii) except in unusual circumstances, and
the permitting authority may thereafter issue only a revised permit
that satisfies EPA's objection. In any case, the source will not be
in violation of the requirement to have submitted a timely and
complete application.
(e) Prohibition on default issuance. Consistent with
70.4(b)(3)(ix), for the purposes of Federal law and title V of the
Act, no State program may provide that a part 70 permit (including a
permit renewal or modification revision) will issue until affected
States and EPA have had an opportunity to review the proposed permit
as required under this section. When the program is submitted for EPA
review, the State Attorney General or independent legal counsel shall
certify that no applicable provision of State law requires that a part
70 permit or renewal be issued after a certain time if the permitting
authority has failed to take action on the application (or includes
any other similar provision providing for default issuance of a
permit), unless EPA has waived such review for EPA and affected
States. Notwithstanding this prohibition on default permit issuance,
permits may be revised on a default basis consistent with the
procedures in 70.7(e) and (f).
70.9 Fee determination and certification.
(a) Fee Requirement. The State program shall require that the
owners or operators of part 70 sources pay annual fees, or the
equivalent over some other period, that are sufficient to cover the
permit program costs and shall ensure that any fee required by this
section will be used solely for permit program costs.
(b) Fee schedule adequacy.
(1) The State program shall establish a fee schedule that
results in the collection and retention of revenues sufficient to
cover the permit program costs. These costs include, but are not
limited to, the costs of the following activities as they relate to
the operating permit program for stationary sources:
(i) Preparing generally applicable regulations or guidance
regarding the permit program or its implementation or enforcement;
(ii) Reviewing and acting on any application for a permit,
permit revision, or permit renewal, including the development of an
applicable requirement as part of the processing of a permit, or
permit revision or renewal;
(iii) General administrative costs of running the permit
program, including the supporting and tracking of permit applications,
compliance certification, and related data entry;
(iv) Implementing and enforcing the terms of any part 70 permit
(not including any court costs or other costs associated with an
enforcement action), including adequate resources to determine which
sources are subject to the program;
(v) Emissions and ambient monitoring;
(vi) Modeling, analyses, or demonstrations;
(vii) Preparing inventories and tracking emissions; and
(viii) Providing direct and indirect support to sources under
the Small Business Stationary Source Technical and Environmental
Compliance Assistance Program contained in section 507 of the Act in
determining and meeting their obligations under this part.
(2)(i) The Administrator will presume that the fee schedule
meets the requirements of paragraph (b)(1) of this section if it would
result in the collection and retention of an amount not less than $25
per year (as adjusted pursuant to the criteria set forth in paragraph
(b)(2)(iv) of this section) times the total tons of the actual
emissions of each regulated pollutant (for presumptive fee
calculation) emitted from part 70 sources.
(ii) The State may exclude from such calculation:
(A) The actual emissions of sources for which no fee is required
under paragraph (b)(4) of this section;
(B) The amount of a part 70 source's actual emissions of each
regulated pollutant (for presumptive fee calculation) that the source
emits in excess of four thousand (4,000) tpy;
(C) A part 70 source's actual emissions of any regulated
pollutant (for presumptive fee calculation), the emissions of which
are already included in the minimum fees calculation; or
(D) The insignificant quantities of actual emissions not
required in a permit application pursuant to 70.5(c).
(iii) "Actual emissions" means the actual rate of emissions in
tons per year of any regulated pollutant (for presumptive fee
calculation) emitted from a part 70 source over the preceding calendar
year or any other period determined by the permitting authority to be
representative of normal source operation and consistent with the fee
schedule approved pursuant to this section. Actual emissions shall be
calculated using the unit's actual operating hours, production rates,
and in-place control equipment, types of materials processed, stored,
or combusted during the preceding calendar year or such other time
period established by the permitting authority pursuant to the
preceding sentence.
(iv) The program shall provide that the $25 per ton per year
used to calculate the presumptive minimum amount to be collected by
the fee schedule, as described in paragraph (b)(2)(i) of this section,
shall be increased each year by the percentage, if any, by which the
Consumer Price Index for the most recent calendar year ending before
the beginning of such year exceeds the Consumer Price Index for the
calendar year 1989.
(A) The Consumer Price Index for any calendar year is the
average of the Consumer Price Index for all-urban consumers published
by the Department of Labor, as of the close of the 12-month period
ending on August 31 of each calendar year.
(B) The revision of the Consumer Price Index which is most
consistent with the Consumer Price Index for the calendar year 1989
shall be used.
(3) The State program's fee schedule may include emissions fees,
application fees, service-based fees or other types of fees, or any
combination thereof, to meet the requirements of paragraph (b)(1) or
(b)(2) of this section. Nothing in the provisions of this section
shall require a permitting authority to calculate fees on any
particular basis or in the same manner for all part 70 sources, all
classes or categories of part 70 sources, or all regulated air
pollutants, provided that the permitting authority collects a total
amount of fees sufficient to meet the program support requirements of
paragraph (b)(1) of this section.
(4) Notwithstanding any other provision of this section, during
the years 1995 through 1999 inclusive, no fee for purposes of title V
shall be required to be paid with respect to emissions from any
affected unit under section 404 of the Act.
(5) The State shall provide a detailed accounting that its fee
schedule meets the requirements of paragraph (b)(1) of this section
if:
(i) The State sets a fee schedule that would result in the
collection and retention of an amount less than that presumed to be
adequate under paragraph (b)(2) of this section; or
(ii) The Administrator determines, based on comments rebutting
the presumption in paragraph (b)(2) of this section or on his own
initiative, that there are serious questions regarding whether the fee
schedule is sufficient to cover the permit program costs.
(c) Fee demonstration. The permitting authority shall provide a
demonstration (and periodic updates as required by the Administrator)
that the fee schedule selected will result in the collection and
retention of fees in an amount sufficient to meet the requirements of
this section.
(d) Use of Required Fee Revenue. The Administrator will not
approve a demonstration as meeting the requirements of this section,
unless it contains an initial accounting (and periodic updates as
required by the Administrator) of how required fee revenues are used
solely to cover the costs of meeting the various functions of the
permitting program.
70.10 Federal oversight and sanctions.
(a) Failure to submit an approvable program.
(1) If a State fails to submit a fully-approvable whole complete
part 70 program in a timely manner, or a required revision thereto
(including revisions to correct deficiencies of a program that the
Administrator had granted interim approval), in conformance with the
provisions of 70.4, or if an interim approval expires and the
Administrator has not approved a whole part 70 programthe
Administrator disapproves a submitted program:
(i) At any time Tthe Administrator may, prior to the expiration
of the 18-month period referred to in paragraph (a)(1)(ii) of this
section, apply any one of the sanctions specified in section 179(b) of
the Act; and
(ii) Eighteen months after the date required for submittal or 18
months after the date of disapproval by the Administrator, whichever
is applicable, the Administrator will apply such sanctions under
section 179(b) of the Act in the same manner and subject to the same
deadlines and with the sameother conditions as are applicable in the
case of a determination, disapproval, or finding under section 179(a)
of the Act.
(2) The sanctions under section 179(b)(2) of the Act shall not
apply pursuant to paragraph (1) of this section in any area unless the
area has been designated a nonattainment area under part D of title I
of the Act.
(23) If full approval of a whole part 70 program has not taken
place within 2 years after the date required for such submission, tThe
Administrator will promulgate, administer, and enforce a whole
program, or a partial program as appropriate, for such State. when:
(i) Full approval of a whole part 70 program has not been
granted by November 15, 1995, except for programs granted interim
approval; or
(ii) For programs granted interim approval, that approval has
expired after November 15, 1995 and EPA has not granted full approval
of a whole part 70 program.
(b) State failure to administer or enforce. Any State program
approved by the Administrator shall at all times be conducted in
accordance with the requirements of this part and of any agreement
between the State and the Administrator concerning operation of the
program.
(1) Whenever the Administrator makes a determination that a
permitting authority is not adequately administering or enforcing a
part 70 program, or any portion thereof, the Administrator will notify
the permitting authority of the determination and the reasons
therefore. The Administrator will publish such notice in the FEDERAL
REGISTER.
(2) If, 90 days after issuing the notice under paragraph (cb)(1)
of this section, the permitting authority fails to take significant
action to assure adequate administration and enforcement of the
program, the Administrator may take one or more of the following
actions:
(i) Withdraw approval of the program or portion thereof using
procedures consistent with 70.4(e);
(ii) Apply any of the sanctions specified in section 179(b) of
the Act;
(iii) Promulgate, administer, or enforce a Federal program under
title V of the Act.
(3) Whenever the Administrator has made the finding and issued
the notice under paragraph (cb)(1) of this section, the Administrator
will apply the sanctions under section 179(b) of the Act 18 months
after that notice. These sanctions will be applied in the same manner
and subject to the same deadlines and other conditions as are
applicable in the case of a determination, disapproval, or finding
under section 179(a) of the Act.
(4) Whenever the Administrator has made the finding and issued
the notice under paragraph (cb)(1) of this section, the Administrator
will, unless the State has corrected such deficiency within 18 months
after the date of such finding, promulgate, administer, and enforce, a
whole or partial program 2 years after the date of such finding.
(5) Nothing in this section shall limit the Administrator's
authority to take any enforcement action against a source for
violations of the Act or of a permit issued under rules adopted
pursuant to this section in a State that has been delegated
responsibility by EPA to implement a Federal program promulgated under
title V of the Act.
(6) Where a whole State program consists of an aggregate of
partial programs, and one or more partial programs fails to be fully
approved or implemented, the Administrator may apply sanctions only in
those areas for which the State failed to submit or implement an
approvable program.
(c) Criteria for withdrawal of State programs.
(1) The Administrator may, in accordance with the procedures of
paragraph (c) of this section, withdraw program approval in whole or
in part whenever the approved program no longer complies with the
requirements of this part, and the permitting authority fails to take
corrective action. Such circumstances, in whole or in part, include
any of the following:
(i) Where the permitting authority's legal authority no longer
meets the requirements of this part, including the following:
(A) The permitting authority fails to promulgate or enact new
authorities when necessary; or
(B) The State legislature or a court strikes down or limits
State authorities to administer or enforce the State program.
(ii) Where the operation of the State program fails to comply
with the requirements of this part, including the following:
(A) Failure to exercise control over activities required to be
regulated under this part, including failure to issue permits;
(B) Repeated issuance of permits that do not conform to the
requirements of this part;
(C) Failure to comply with the public participation requirements
of 70.7(h);
(D) Failure to collect, retain, or allocate fee revenue
consistent with 70.9; or
(E) Failure in a timely way to act on any applications for
permits including renewals and revisions.
(iii) Where the State fails to enforce the part 70 program
consistent with the requirements of this part, including the
following:
(A) Failure to act on violations of permits or other program
requirements;
(B) Failure to seek adequate enforcement penalties and fines and
collect all assessed penalties and fines; or
(C) Failure to inspect and monitor activities subject to
regulation.
(d) Federal collection of fees. If the Administrator determines
that the fee provisions of a part 70 program do not meet the
requirements of 70.9, or if the Administrator makes a determination
under paragraph (c)(1) of this section that the permitting authority
is not adequately administering or enforcing an approved fee program,
the Administrator may, in addition to taking any other action
authorized under title V of the Act, collect reasonable fees to cover
the Administrator's costs of administering the provisions of the
permitting program promulgated by the Administrator, without regard to
the requirements of 70.9.
(e) This section shall apply to the acid rain program except as
otherwise provided by regulations promulgated pursuant to title IV of
the Act.
70.11 Requirements for enforcement authority.
All programs to be approved under this part must contain the
following provisions:
(a) Enforcement authority. Any agency administering a program
shall have the following enforcement authority to address violations
of program requirements by part 70 sources:
(1) To restrain or enjoin immediately and effectively any person
by order or by suit in court from engaging in any activity in
violation of a permit that is presenting an imminent and substantial
endangerment to the public health or welfare, or the environment.
(2) To seek injunctive relief in court to enjoin any violation
of any program requirement, including permit conditions, without the
necessity of a prior revocation of the permit.
(3) To assess or sue to recover in court civil penalties and to
seek criminal remedies, including fines, according to the following:
(i) Civil penalties shall be recoverable for the violation of
any applicable requirement; any permit condition; any fee or filing
requirement; any duty to allow or carry out inspection, entry or
monitoring activities or, any regulation or orders issued by the
permitting authority. These penalties shall be recoverable in a
maximum amount of not less than $10,000 per day per violation. State
law shall not include mental state as an element of proof for civil
violations for which penalties up to $10,000 per day per violation are
recoverable.
(ii) Criminal fines shall be recoverable against any person who
knowingly violates any applicable requirement; any permit condition;
or any fee or filing requirement. These fines shall be recoverable in
a maximum amount of not less than $10,000 per day per violation.
(iii) Criminal fines shall be recoverable against any person who
knowingly makes any false material statement, representation or
certification in any form, in any notice or report required by a
permit, or who knowingly renders inaccurate any required monitoring
device or method. These fines shall be recoverable in a maximum
amount of not less than $10,000 per day per violation.
(b) Burden of proof. The burden of proof and degree of
knowledge or intent required under State law for establishing
violations under paragraph (a)(3) of this section shall be no greater
than the burden of proof or degree of knowledge or intent required
under the Act.
(c) Appropriateness of penalties and fines. A civil penalty or
criminal fine assessed, sought, or agreed upon by the permitting
authority under paragraph (a)(3) of this section shall be appropriate
to the violation.
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