ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-5053-2]
Operating Permits Program Rule Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY : The EPA is today proposing a number of revisions to the
operating permits rule mandated by title V of the Clean Air Act (Act)
as amended in 1990. That rule, codified in part 70 of chapter I of
title 40 of the Code of Federal Regulations, was originally
promulgated on July 21, 1992 (57 FR 32250). Part 70 requires each
State to establish and administer a program for issuing to each
covered source in the State an operating permit. Part 70 also sets
forth the minimum elements of any State or local agency operating
permits program. Today's notice proposes revisions to several of
part 70's provisions establishing these elements. Most of the
proposed revisions relate to those provisions that define when and how
a permit must be revised to reflect changes at a permitted source. In
addition, today's notice proposes numerous minor changes to part 70 to
clarify its scope or effect or address issues that have surfaced in
the course of its implementation. It also provides clarification of
some regulatory provisions that do not require revision.
DATES: Comments on the proposed regulatory changes must be received by
November 28, 1994. The EPA is unlikely to be able to extend the
public comment period. The EPA will hold a public hearing at 9:00
a.m. (EDT) on October 19, 1994. Requests to present oral testimony
must be received on or before October 5, 1994.
ADDRESSES: Comments must be mailed (in duplicate if possible) to: EPA
Air Docket (LE-131), Attn: Docket No. A-93-50, room M-1500, Waterside
Mall, 401 M Street SW, Washington, DC 20460. The public hearing will
be held in the Waterside Mall auditorium at the EPA's Headquarters
Office in Washington, DC.
Docket: Supporting information used in developing the proposed
regulatory revisions is contained in Docket No. A-93-50, at the
preceeding address. This docket is available for public inspection
and copying between 8:30 a.m. and 3:30 p.m. Monday through Friday. A
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Michael Trutna (telephone
919/541-5345), mail drop 15, United States Environmental Protection
Agency, Office of Air Quality Planning and Standards, Air Quality
Management Division, Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Public Comments
If possible, comments should be sent in both paper and
computerized form. Two paper copies of each set of comments are
requested. Comments generated on computer should also be sent on an
IBM-compatible, 3 1/2 inch diskette and clearly labeled. Comments
should refer to specific page numbers and regulatory section numbers
whenever possible.
Table of Contents
The contents of today's preamble are in the following format:
I. Introduction
II. Background
A. Basic Statutory Requirements
B. Rule Promulgation and Litigation
C. Settlement Negotiations and Resulting Proposals for Rule Changes
and
Clarifications
D. Program Implementation and Resulting Proposed Revisions
III. Proposed Revisions of the Flexibility Provisions
A. Overview
B. Off-Permit Provisions
C. Operational Flexibility Provisions
D. Other Elements of the Rule Providing Operational Flexibility
E. Permit Revisions
F. General Permits
IV. Other Changes and Clarifications
A. Section 70.2--Definitions
B. Section 70.3--Applicability
C. Section 70.4--State Program Submittals and Transition
D. Section 70.5--Permit Applications
E. Section 70.6--Permit Content
F. Section 70.7--Permit Issuance, Renewal, Reopenings, and Revisions
G. Section 70.8--Permit Review by EPA and Affected States
H. Section 70.9--Fee Determination and Certification
I. Section 70.10--Federal Oversight and Sanctions
J. Section 70.11--Requirements for Enforcement Authority
V. Decision-Making Flow Charts
A. Flow Chart for Changes Subject to Major NSR
B. Flow Chart for Changes Subject to Minor NSR
C. Flow Chart for Section 112(g) Modifications
VI. Administrative Requirements
A. Public Hearing
B. Docket
C. Office of Management and Budget (OMB) Review
D. Regulatory Flexibility Act Compliance
E. Paperwork Reduction Act
I. Introduction
The provisions of title V of the Act and the implementing part 70
regulations are far-reaching in both scope and effect. By the terms
of title V and part 70, every State must establish an operating
permits program under which every major source of air pollution must
obtain and abide by a permit that includes all of the requirements
applicable to it under the Act. The operating permits program's
potential consequences for air pollution control and for sources'
ability to meet changing market demands have made the process of
developing and implementing a program complex and controversial.
Indeed, nearly 20 entities, including State and local governments,
environmental groups, and industry associations, petitioned for
judicial review of the part 70 regulations. Today's proposed
revisions are the result of EPA's continuing efforts to ensure that
part 70 is effective and workable.
Many of the revisions stem from the Agency's discussions with the
State and local agency, environmental, and industry group petitioners.
Other revisions grow out of EPA and State and local agency experience
in implementing part 70.
As required by the Act, many State and local agencies have
already developed operating permits programs in accordance with the
current part 70 and submitted the programs to EPA for approval.
Others are well along in their efforts to develop and submit programs.
The EPA has considered these circumstances in deciding whether and how
to revise part 70. The Agency believes the revisions proposed today
are necessary for the legal and policy reasons explained below. At
the same time, EPA wants to minimize any disruption caused by these
revisions. The Agency is thus proposing that State and local program
approvals be governed by the version of part 70 in effect at the time
of a program's submittal, except that programs submitted within 6
months after the publication date of the part 70 revisions will be
judged by whichever version of part 70 the permitting authority
chooses.
In light of ongoing discussions with petitioners in the part 70
litigation, EPA expects to propose several additional revisions to
part 70 in the near future. The EPA is proposing revisions today in
part because of agreements reached with petitioners and in part
because several of the revisions are important to better program
implementation. In addition, most State and local agencies are likely
to need program revisions to correct the deficiencies identified by
EPA in granting their programs interim approval. The Agency wishes to
avoid requiring permitting authorities to engage unnecessarily in
multiple rounds of program revision. As a result, EPA is proposing
that permitting authorities be required to revise their programs in a
time frame that would allow permitting authorities options to combine
rulemakings where possible.
II. Background
A. Basic Statutory Requirements
Title V, added by the 1990 amendments to the Act, requires the
establishment of an operating permits program in every State for
stationary sources of air pollution. The purpose of the program is to
improve the enforceability, and thus the effectiveness, of the Act's
requirements by issuing to every covered source a permit that lists
all of the requirements applicable to the source under the Act and
that includes monitoring provisions sufficient to determine compliance
with those requirements.
Title V directs EPA to issue regulations setting forth the
minimum elements of an operating permits program (section 502(a)). It
further directs every State to submit by November 1993 an operating
permits program meeting those minimum elements to EPA for approval
(section 502(d)(1)). The EPA has 1 year to approve or disapprove
State or local agency program submissions (section 502(d)(1)). Once
EPA has approved a State or local agency's program, the covered
sources within that agency's jurisdiction have 1 year to submit permit
applications to the permitting authority (section 503(c)) unless the
permitting authority establishes an earlier date. Within the first 3
years of the program, the permitting authority must act on all
applications submitted in the first year of the program
(section 503(c)). Before the permitting uthority may issue a permit,
the public must have an opportunity to comment on the draft permit
(section 502(b)(6)), and EPA must have an opportunity to object to the
proposed permit if it does not comply with the Act's requirements
(section 505(b)). Once the permitting authority issues a source its
part 70 permit, the source may not violate any requirement of its
permit or operate except in compliance with it (section 502(a)).
B. Rule Promulgation and Litigation
On July 21, 1992, the part 70 operating permits regulations were
published in the Federal Register. Nearly 20 entities filed 12
petitions for review of the part 70 regulations with the U.S. Court of
Appeals for the District of Columbia Circuit. Petitioners included 8
State and local permitting authorities (Maine, Vermont, Connecticut,
New York, New Jersey, Pennsylvania, and two California air quality
control districts, South Coast and Mojave Desert); three national
environmental groups (Natural Resources Defense Council, Sierra Club
Legal Defense Fund, and Environmental Defense Fund); and industry
umbrella groups, trade associations, and individual corporations
(Clean Air Implementation Project, Chemical Manufacturers Association,
American Petroleum Institute, American Forest and Paper Association,
American Mining Congress, Alabama Power and other utilities, and Eli
Lilly and Company). Many of the petitioners intervened in one
another's lawsuits and several other entities intervened as well
(e.g., Motor Vehicle Manufacturers Association, Synthetic Organic
Chemical Manufacturers Association, and Pharmaceutical Manufacturers
Association). The petitions were consolidated into one suit, Clean
Air Implementation Project v. EPA, No. 92-1303.
Taken together, the petitions raised over 60 issues for judicial
review. Approximately one-third of the issues related to the
provisions of part 70 that had been most contentious during the
rulemaking, i.e., those that determine when and how a source must
revise its permit to account for changes at the source that could
affect emissions. Other major issues concerned part 70's provisions
regarding the deferral of the permitting requirement for minor
sources; an emergency defense for violation of permit terms; general
permits; compliance plans and schedules; the designation of State-only
requirements included in part 70 permits as not federally enforceable;
and the inclusion in part 70 permits of monitoring terms sufficient to
ensure that applicable requirements included in the permit are
practicably enforceable.
C. Settlement Negotiations and Resulting Proposals for Rule Changes
and Clarifications
After the petitions were filed, EPA and the litigants explored
the prospect of settling some or all of the issues raised, and over
the past year have engaged in active and ongoing settlement
negotiations. The Agency and the litigants early on identified
approximately 10 issues that were the result of misunderstandings of
the relevant regulatory provisions. In an effort to resolve those
issues, EPA has decided to provide appropriate clarifications.
Today's notice provides those clarifications, either in the preamble
alone or together with minor revisions to the regulatory language.
The EPA and the relevant litigants also addressed the issue of
the appropriate treatment of fugitive emissions in making major source
determinations. The current rule expressly provides that in
determining whether a source is major for purposes of part C
(prevention of significant air quality deterioration) or part D
(nonattainment) of title I of the Act, the source's fugitive emissions
are to be counted if the source is in a source category subject to any
standard under section 111 (providing for new source performance
standards (NSPS)) or section 112 (providing for emissions standards to
control hazardous air pollutants (HAP's)) of the Act. For the reasons
subsequently set forth in this notice, the Agency today generally
proposes to revise part 70 to no longer designate sources in source
categories subject to a section 111 or 112 standard promulgated after
August 7, 1980 as sources for which fugitive emissions must be counted
for purposes of determining major source status under part C or part D
of title I of the Act. In addition, today's notice clarifies that
fugitive emissions of HAP's must be counted for purposes of
determining major source status under section 112 of the Act.
As previously noted, nearly one-third of the issues raised by the
petitioners pertain to the so-called "flexibility" provisions of
part 70, i.e., those provisions that determine when and how a source
must revise its permit to account for a change at its facility. They
were and remain the most controversial provisions of part 70. Most of
the issues in this category were raised by State and local agency
and/or environmental group petitioners. These petitioners were
primarily concerned that the flexibility provisions are vague, fail to
provide for public participation, or inadequately provide for State or
local permitting authority review. Industry petitioners also raised
several issues with respect to the flexibility provisions, alleging
generally that the Agency lacked authority or justification for
several of the related requirements imposed on industry.
Although settlement negotiations usually involve only the party
or parties raising the particular issue being discussed, industry
petitioners requested that they be allowed to participate in
negotiations of the flexibility related issues raised by State and
local agency and environmental group petitioners. In view of the
importance of those issues to industry's ability to make changes to
meet market demands, EPA and the other petitioners agreed that all
litigants should be involved in the relevant discussions.
Accordingly, over a 9-month period, EPA conducted a series of
negotiating sessions that involved all of the litigants.
The litigants represented a broad spectrum of the interests with
a stake in the operating permits regulations. While State and local
petitioners were not representative of all permitting authorities,
they sought a rule that would allow State and local agencies to
fashion programs that achieve air quality benefits at a minimum of
cost and disruption to existing pollution control programs.
Environmentalists sought a rule that provided an opportunity for
public participation in permitting decisions, not only to augment
citizens' role in air quality control, but to ensure the integrity of
the permitting process. Industry petitioners represented nearly all
of the major industry sectors affected by the rule; only small
business was not represented at all. For its part, industry sought a
rule that allowed sources to make changes expeditiously, so that they
could respond to changing market conditions in a timely manner.
The multilateral settlement discussions fostered a common
understanding of the different stakeholders' interests in the permits
regulations and a constructive effort to fashion permit flexibility
provisions that would strike an appropriate balance between those
interests. A broad consensus was achieved on the basic structure of
revised flexibility provisions, i.e., a clear definition of those
changes that require a permit revision and permit revision procedures
that provide for public process for environmentally- significant
changes on a sliding scale, with more process provided as the
significance of the change increases.
On several issues related to permit revision procedures the
litigants did not reach a consensus. These issues typically required
more information to resolve than the litigants, including EPA, had
available at the time. For instance, one of the proposed revision
tracks provides only after-the-fact public notice of, and an
opportunity to comment on, "small" changes at a permitted facility.
The parties could not agree on what constitutes a "small" change, at
least in part because the information needed to determine the
consequences of choosing any particular definition was lacking.
Today's proposed revisions to the flexibility provisions of
part 70 grow out of the progress made in the settlement discussions.
The basic framework developed by the litigants is followed, and on
those issues the litigants were unable to achieve consensus,
alternatives are proposed for public comment. The proposal does not,
however, represent a formal agreement among the parties as to how
part 70 should be ultimately revised. All of the litigants are free
to request changes to the proposal in their public comments. For its
part, EPA is satisfied that today's proposed changes represent a
reasonable compromise of the conflicting concerns and objectives of
the various petitioners. However, EPA is concerned that the proposed
changes are intricate and complex and are based on discussions with
only a fraction of the companies, regulators, and citizen groups that
have an interest in the permit program provisions at issue. For this
reason, EPA encourages all interested parties to provide detailed
comments on these changes and to address in these comments not only
the specifics of the four- track permit revision system proposed
today, but simpler alternatives that achieve the same regulatory
goals.
D. Program Implementation and Resulting Proposed Revisions
Since part 70 was promulgated, EPA has also participated
extensively in State and local agency efforts to implement part 70.
As indicated above, permitting authorities were statutorily required
to submit their programs to EPA by November 1993. Thus, permitting
authorities could not wait until the part 70 litigation had been
resolved to develop their programs. These development efforts have
revealed other issues not covered by the litigation.
In addition, EPA has made progress in its own efforts to
implement section 112 of the Act, which requires the Agency to
comprehensively regulate HAP emissions. The form and timing of
recently promulgated standards under section 112(d) (i.e., maximum
achievable control technology (MACT) standards) have made necessary
further revisions of part 70 to provide for orderly incorporation of
MACT standards. The EPA is therefore including in today's notice
proposed revisions to deal with certain issues arising from
implementation of part 70 and section 112.
III. Proposed Revisions of the Flexibility Provisions
A. Overview
As mentioned above, the flexibility provisions of part 70
prescribe what changes at a source require a revision to the source's
permit and what procedures apply if a revision is required. These
provisions fall into three categories. The first two, containing the
"off-permit" and "operational flexibility" provisions, define changes
that do not require permit revision. For changes requiring permit
revision, the third category specifies the procedures to be used to
revise the permit. This preamble sets forth the proposed revisions to
each category in turn. It describes the current provisions, the
issues they have posed, and the proposed approach to resolving those
issues.
One issue, however, is common to all three categories and should
be explained at the outset. The current rule limits the availability
of the off- permit, operational flexibility, and minor permit
modification (revision) provisions to changes that are not
"modifications under any provision of title I" of the Act. The rule
does not define the term "title I modification," and much confusion
and controversy has surrounded its interpretation. Industry and most
States, pointing in particular to footnote 6 of the proposed part 70
regulations (56 FR 21712, 21746-7 (May 10, 1991)), have read that
phrase as not including modifications governed by State or local
agency minor new source review (NSR) programs. Environmentalists, on
the other hand, have read the phrase as including minor NSR
modifications (i.e., changes subject to minor NSR), since the
statutory basis for minor NSR is section 110(a)(2)(C), which is in
title I of the Act.
The confusion stems from EPA's failure to state explicitly
whether or not "modification under any provision of title I" includes
minor NSR changes. Several commenters requested that EPA clarify the
meaning of title I modification in the final rule, but the Agency
declined to do so, stating in its response to comment document that
footnote 6 of the proposed rule (56 FR 21712, 21746-21747) contained
an adequate description. Footnote 6 refers to other title I
provisions addressing "modifications," but does not mention
section 110(a)(2)(C), which requires States to regulate the
"modification" (as well as construction) of stationary sources as
necessary to assure that national air quality standards are met.
Footnote 5 of the same preamble (56 FR at 21746) refers to footnote 6
"for what constitutes a 'modification' under CAA title I." Footnotes 5
and 6 thus imply that the phrase title I modifications excludes minor
NSR modifications. The final rule's preamble discussion of minor
permit modifications also implies that title I modifications do not
include minor NSR modifications.
At the same time, the phrase, "modifications under any provision
of title I," is broad enough to cover modifications under
section 110(a)(2)(C). As noted above, section 110(a)(2)(C) appears in
title I and covers modifications of stationary sources. The prior
rulemaking notices did not address how the phrase "title I
modifications" can be read to exclude modifications under
section 110(a)(2)(C), nor did they address how exclusion of minor NSR
would affect the regulatory purposes of the NSR program.
As previously noted, the purpose of section 110(a)(2)(C) is to
assure that new or modified sources do not cause an area to fall short
of achieving air quality standards. Virtually every State currently
administers a minor NSR program. Section 110(a)(2)(C) and EPA's
implementing regulations (40 CFR 51.160-164) leave States discretion
to craft de minimis exemptions from the minor NSR program, and State
programs broadly differ, in large part as a reflection of States'
differing air quality conditions. Under section 110, these State
programs must be included in State implementation plans (SIP's) and
thus are integral parts of the Federal-State program for controlling
air pollution under the Act.
Congress defined "modification" under various title I provisions
for purposes of determining the scope of particular Federal pollution
controls; it did not define that term for purposes of
section 110(a)(2)(C). An argument can be made that the phrase
"title I modification" only refers to modifications defined in title I
provisions (e.g., section 112(a)(5)). It does not necessarily follow,
however, that those title I modifications that States are left to
define as a function of their minor NSR programs should be ignored.
Indeed, given the Federal-State partnership established under the Act,
"modifications under any provision of title I" could be construed as
including modifications of significance to States under minor NSR as
well as those defined by Congress itself.
Since 1977, when Congress established a separate and much more
stringent NSR program for "major" new and modified sources (see parts
C and D of title I of the Act), NSR programs under
section 110(a)(2)(C), i.e., minor NSR, have taken on the additional
important function of providing a means for sources to avoid major NSR
requirements. The statute defines "major" in terms of a new source's
potential to emit, and EPA's implementing regulations provide that
federally-enforceable controls and operational limits be considered in
determining a source's potential to emit. As to modifications, EPA
has by regulation also limited the reach of NSR under parts C and D to
only "major" modifications. Since minor NSR programs approved into
SIP's establish federally-enforceable emissions limits, minor NSR
permits have become the vehicle of choice for creating "synthetic
minor new sources" and "synthetic minor modifications." Available
information indicates that many minor NSR permits issued in the last
decade serve the function of creating "synthetic minors."
Thus in light of the role of minor NSR in creating synthetic
minors, the integrity of minor NSR programs is linked to the integrity
of the major NSR program. Underscoring the importance of both
programs is EPA's regulatory requirement that State or local
permitting authorities provide an opportunity for public participation
in major and minor NSR permitting (40 CFR 51.160, 161, 165, and 166).
Against this backdrop, EPA believes that "modifications under any
provision of title I" should be interpreted to include minor NSR
modifications. The Agency solicits comment on this interpretation.
The EPA is aware that many State and local agencies interpreted
EPA's regulatory language to exclude minor NSR and developed their
part 70 programs accordingly. The Agency believes that it bears
primary responsibility for the confusion that has surrounded the
interpretation of "a modification under any provision of title I." It
is therefore proposing in another rulemaking action to revise the
part 70 regulations to allow the Agency to grant interim approval to
State or local operating permits programs that allow minor NSR actions
to be processed as minor permit modifications.
B. Off-Permit Provisions
The first question to be addressed in designing a flexible permit
program is what changes at a permitted facility that have the
potential to affect regulated air emissions require a revision to the
facility's permit. The current rule addresses that question in its
"off-permit" and "operational flexibility" provisions. The off-permit
provisions generally define the realm of changes that a source can
make without first revising its permit because the changes are neither
prohibited nor addressed by the permit. It should be noted, however,
that off-permit changes may need to be incorporated into a source's
permit at permit renewal. The operational flexibility provisions,
discussed in the next section of this preamble, describe particular
categories of changes that a source can make without revising its
permit because the permit provides for those changes, the changes
involve emissions trading authorized by the permit, or the changes
meet specified criteria.
1. Current Rule
Section 70.4(b)(14) of the current rule provides that a
permitting authority may allow a source to make changes that are "not
addressed or prohibited by the permit" without revising its permit.
As EPA explained in the preamble to the current rule, while
section 502(a) prohibits a source from operating "except in
compliance" with its permit, a source does not violate this
prohibition when it operates in ways that are neither addressed nor
prohibited by its permit.
At the same time, the current section 70.4(b)(15) prohibits any
source from making changes that are modifications under any provision
of title I or subject to any requirements under title IV (acid rain)
of the Act without evising its permit. As EPA explained,
section 502(b)(10) indicates that permits should be revised to reflect
modifications under any provision of title I, and the allowance
trading system for acid rain sources under title IV would not be
feasible if changes subject to title IV requirements could be made
off-permit.
In the case of sources required to obtain a permit under parts C
or D of title I or section 112(g) of the Act, however, the current
part 70 allows for the permit to be revised after the source begins
operation of the change. Under section 70.5(a)(1)(ii), applications
for permit revisions for such sources or source changes must be
received within 12 months of commencing operation of the modification
or new unit, unless the permit prohibits such a change in operation,
in which case the permit must be revised first.
Even in the case of changes eligible for "off-permit" treatment,
section 70.4(b)(14)(ii) requires sources to provide contemporaneous
notice to the permitting authority and EPA of each such change, any
resulting change in emissions, and any requirements under the Act that
apply as a result of the change. The purpose of this provision is to
allow the permitting authority and/or EPA to confirm that the change
is eligible for "off-permit" treatment and to determine if the source
is subject to any new applicable requirements.
2. Issues Raised
Part 70's off-permit provisions have been another source of
confusion and controversy. Questions about what changes qualify for
off-permit treatment grow out of the title I modification criterion
discussed above as well as the other criteria set out in the relevant
regulatory provisions. Very different views of what changes qualify
have been suggested. Some have argued that the off-permit provisions
allow a source to change its operations in ways not contemplated by
the permit and to no longer comply with permit terms that were
developed in light of the source's pre-change operations, even if the
permit terms on their face remain applicable. Others have argued for
a much narrower interpretation, suggesting that as long as a permit
term applies to a unit or operation at a source, no change that
affects which requirements are applicable to that unit or operation
can be made on an off-permit basis.
Further, industry has questioned whether the off-permit
provisions extend even to changes that neither violate a permit term
nor change the applicable requirements to which a source is subject.
As noted above, section 70.4(b)(14) authorizes changes that are "not
addressed or prohibited" by the permit to be made without revising the
permit, but requires that such changes be reported to the permitting
authority and EPA. On its face, it does not distinguish between
changes that do and changes that do not affect the requirements
applicable to the source, although the accompanying discussion in the
preamble to the final part 70 rule suggests that it was intended to
cover only changes that affect which requirements apply to the source.
Industry has been concerned that the provision could be read to cover
all changes "not addressed or prohibited" by the permit, not just
changes that affect which requirements are applicable to a source.
As to the effect of the off-permit provisions, many State and
local agencies have expressed concern that allowing sources to make
changes off- permit is inconsistent with their current operating
permit programs. Under those State or local programs, permits
effectively cap a source's emissions; in other words, a source is
prohibited from emitting more or differently than the terms of its
permit provide. Permitting authorities with this type of permit
program are concerned that the current rule's off-permit provisions
may result in sources being allowed to make changes before the
permitting authority has approved them. Other permitting authorities
whose permits do not establish caps are nevertheless similarly
interested in reviewing a source's changes before they are made to
ensure that they comply with all applicable requirements.
3. Changes Not Requiring Permit Revision
At the outset, EPA believes it is important to make clear that
under title V and the current part 70, not all changes that bear on
regulated air emissions require a change in the permit (either through
permit revision or at permit renewal). A change at a source does not
require a change in its part 70 permit if the source can make the
change (1) without violating any permit term, and (2) without
rendering the source newly subject to an applicable requirement.
Since such a change does not violate permit terms, the permit need not
be revised to accommodate the change. Since such a change does not
make the source newly subject to an applicable requirement, the permit
need not be updated to accurately reflect the requirements applicable
to the source. Simply put, under part 70, such a change is within the
scope of the permit and therefore does not require a change to the
permit. This flexibility is inherent in the current part 70 rule,
irrespective of the additional flexibility provided by
section 70.4(b)(14).
The EPA is concerned that the rule does not clearly express this
principle. As mentioned above, industry in particular has been
concerned that the rule could be read to require any change to be
reported and ultimately incorporated into the permit. The EPA is
therefore proposing to revise part 70 to make clear that the only
changes requiring a permit revision are those that a source cannot
operate (1) without violating a permit term, and (2) without rendering
a source newly subject to an applicable requirement. The Agency's
reasons for requiring the permit to be revised during the term of the
permit as opposed to updated at renewal are set forth below.
This clarification of the rule's effect on changes that are
within the scope of the permit is not meant to preclude permitting
authorities from taking a more stringent approach to reviewing changes
at permitted sources. As noted above, some permitting authorities are
interested in reviewing all changes (or all changes with an emissions
effect greater than a specified amount) to ensure that they meet all
applicable requirements. Section 506(a) of the Act provides that
States may adopt permitting requirements more stringent than EPA's
permit rule requires. Permitting authorities may thus provide for
review of all changes, even those within the scope of the permit, if
they so desire. Permitting authority review of all changes has the
advantage of ensuring that all changes meet applicable requirements,
but EPA does not believe it necessary or appropriate to require
permitting authorities to take this approach. Permitting authorities
have differing air pollution control needs, and many permitting
authorities may justifiably conclude that their situations do not
warrant such comprehensive review of changes.
4. Appropriate Scope of Off-Permit Changes
As described above, very different approaches have been taken to
interpreting the off-permit provisions. These differences stem from
differing views about what part 70 permits should attempt to
accomplish. One of the principal purposes of title V is to create a
single document for each covered source listing all of the applicable
requirements that the source must meet under the Act. To the extent a
source can make changes off-permit that affect which applicable
requirements it must meet, its part 70 permit becomes at least
somewhat outdated. A related goal of the part 70 permit is to ensure
that the requirements applicable to a source are correctly determined
and practicably enforceable. To the extent a source can make changes
off-permit, there is a risk that the source will incorrectly determine
what requirements apply to it as a result of a change and will not
adequately monitor its compliance with any newly applicable
requirements.
Beyond these purposes, some permitting authorities treat permits
as licenses that allow a covered source to emit no more or no
differently than the terms of its permit prescribe. Allowing sources
to make off-permit changes is inconsistent with this approach to
permits. On the other hand is industry's concern for flexibility. If
a source cannot make any change without first revising its permit, the
source could lose valuable time in responding to changing market
conditions.
The Agency has re-evaluated the statutory basis and role of
off-permit changes, and believes several revisions of the current
rule's off-permit provisions are warranted. As EPA noted in the
preambles to the proposed and final part 70 regulations,
section 502(a) of the Act prohibits a source from operating except in
compliance with its permit. A source that could operate a change
while remaining in compliance with its permit would not violate this
prohibition, even if the change affected the composition of emissions
or increased emissions. At the same time, sections 502(b)(5)(A) and
504(a) require that a permit program and permit "assure compliance
with applicable requirements." How far a program or permit must go to
"assure compliance" is not clear, since it is not possible for any
program or permit to guarantee that a covered source will comply with
all of its applicable requirements all of the time. The EPA believes
that these provisions require that the permitting process include
reasonable measures for ensuring that the requirements applicable to a
source are correctly determined and made enforceable. Obviously, to
the extent a source can make changes before revising its permit, the
permitting process cannot ensure that the source has properly assessed
any resulting change in applicable requirements or undertaken to
adequately monitor its compliance with them by the time it makes the
change. The EPA does not believe, however, that sections 502(b)(5)(A)
and 504(a) necessarily require that the permitting process screen all
changes before they are made. Depending on the nature and
significance of the change and the incentives created for sources to
carefully assess the effect of a change on applicable requirements, it
may be adequate for purposes of "assuring compliance" for the
permitting process to review the change within a reasonable amount of
time after the change is made.
Section 502(b)(9) is also relevant. It provides that permits
with a remaining term of at least 3 years must be expeditiously
revised to incorporate standards or regulations promulgated under the
Act after the permit is issued. It thus indicates that Congress did
not contemplate that permits would necessarily include all of the
applicable requirements to which a source is subject at any given
time. At the same time, it also indicates that Congress wanted
permits updated quickly, so that they would remain reasonably
comprehensive.
The EPA believes that the statutory language and structure of
title V indicate that Congress intended to carefully circumscribe, but
not entirely foreclose, a source's ability to make changes without
first revising its permit. Section 502(a) makes clear that a source
may not violate any term of its permit. It also provides that a
source may not operate "except in compliance with" its permit. If a
source makes a change that violates a permit term, then it violates
section 502(a). If it makes a change and no longer complies with
permit terms that remain applicable on their face, it also violates
section 502(a). In short, a source may live within section 502(a) and
make a change without first revising its permit if it can and does
operate the change while continuing to comply with all of its
applicable permit terms.
The Agency considers the preceding sentence to describe the legal
outer bounds of off-permit changes under section 502(a). It therefore
rejects the interpretation of the current rule's off-permit provisions
that would allow sources to no longer comply with permit terms that
remain applicable on their face but that the source believes to be
out-dated because it changed its operations in a manner not
contemplated by the permit. In today's notice, EPA proposes to revise
section 70.4(b)(14) to clarify that off-permit changes do not relieve
the source from complying with permit terms that remain applicable on
their face.
The question remains whether the full extent of off-permit
changes allowable under section 502(a) should be provided in view of
sections 502(b)(5)(A) and 504(a). The effect of the proposed
clarification of a source's ability to avoid permit terms by making
off-permit changes could largely depend on the way in which its permit
is written. To the extent a permit requires a source to conduct its
operations in a certain way, there may be little or no ability on the
part of the source to make off-permit changes, since any change to its
operations may conflict with permit terms. At the other extreme, to
the extent a permit requires a source to conduct its operations in a
certain way only under certain circumstances, the source may well be
able to more or less sidestep its permit by merely changing those
circumstances. For instance, a permit that requires the application
of a particular control technology if a source uses a certain fuel in
a boiler unit does not constrain the operation of that boiler unit if
the source switches fuels. Where the permit is written in such a
conditional manner, the source is not violating its existing permit
terms when it switches to a different fuel.
To give effect to sections 502(b)(5)(A) and 504(a), however, a
permit program may not allow permits to be so narrowly written as to
guarantee their early obsolescence. To contain the potential realm of
off-permit changes, a source's permit should identify and make
enforceable the applicable requirements with which the source must
comply over the foreseeable range of its operations. Put another way,
permits should be crafted to remain reasonably comprehensive during
their term. So, under the preceding example, where the source is
designed to operate its boiler unit using alternative fuels, a permit
that addresses only one mode of operation would not satisfy the
section 504(a) requirement for comprehensiveness. To help ensure that
permits are reasonably comprehensive, EPA is proposing a minor change
to the current rule to authorize a permitting authority to identify
and include in a source's permit reasonably anticipated alternative
operating scenarios.
In addition to provisions for including alternative operating
scenarios in permits, EPA is considering whether the realm of
off-permit should be more directly contained by limiting the kinds of
changes that can be made off- permit. As noted above, title V was
enacted to provide an accurate, enforceable compilation of the
requirements applicable to every covered source. When a source makes
a change that triggers a newly applicable requirement not contemplated
by its permit, there is a public interest in ensuring that the correct
requirements are identified and made enforceable. The source, on the
other hand, has an interest in making changes as quickly as possible,
and the changes at issue here by definition do not jeopardize the
source's compliance with its permit.
The EPA believes that a source should not be required to revise
its permit before making a change (1) that it can make and still
comply with its existing permit, and (2) that decreases emissions
allowable under the permit. In the case of changes that decrease
allowable emissions, the public interest in reviewing the change
before it is made is offset by the public interest in maximizing
emissions decreases. Further, such changes are at least sometimes the
result of voluntary pollution prevention efforts, which might be
discouraged by requiring a prior permit revision. In discussing when
a source could make a change that does not violate permit terms but
does trigger a newly applicable requirement, the litigants in the
part 70 litigation agreed that emissions-decreasing changes should not
await permit revision.
The EPA similarly believes that a source should not be required
to revise its permit before making a change while still complying with
its permit, if the change does not result in a net increase in
emissions allowable under the permit. When a no-net increase in
allowable emissions is expected, the public's interest in ensuring
that applicable requirements have been correctly identified and made
enforceable is adequately served by review after the change is made.
The Agency is interested, however, in examples of changes that would
not cause a net increase in allowable emissions and comments on how
straightforward determinations of a no-net increase in such emissions
would be. The Agency also solicits comment on whether the test for a
net increase in emissions should be based on actual emissions instead
of allowable emissions and what factors the Agency should consider in
implementing such a test.
The EPA solicits comment on whether a change that meets the
off-permit test but nonetheless causes allowable emissions to increase
(for instance, as a result of the addition of a new unit or change in
raw materials not prohibited by the permit) should be made without
first revising the permit. As stated above, the Agency does not
believe the statute requires that part 70 permits effectively cap a
source's allowable emissions. A source may be able to make certain
emissions-increasing changes and still operate in compliance with its
permit. At the same time, the public interest in ensuring that
applicable requirements are correctly identified and practically
enforceable is greatest in the case of emissions increases. Arguably,
the public should have an opportunity to ensure that any increases are
in keeping with applicable requirements and that any limits on those
increases are enforceable before a source may increase its allowable
emissions over that level effectively established by its current
permit. The EPA solicits comment on whether a source should be
allowed to make changes meeting the off-permit test without first
revising its permit even if those changes increase allowable
emissions.
Some have urged EPA to entirely foreclose a source's ability to
make off- permit changes as a way of ensuring that permits are
comprehensive. The EPA solicits comment on this option. The Agency
believes, however, that this source of flexibility is likely to be
important to a source's ability to meet not only changing markets, but
new standards. Under section 112, EPA foresees promulgating a
potentially large number of MACT standards. Sources will become
subject to those standards either at the time the standards are
promulgated or on making changes that trigger the application of the
standard. To comply with those standards, sources may well need to
make changes before their permits can be revised. To the extent they
can make those changes while still complying with their permits, EPA
believes they should be allowed to do so.
Even though the Agency believes that at least some changes
meeting the off- permit test can be made without first revising the
permit, it believes such changes should be incorporated into the
permit within a reasonable period of time after the source begins to
operate the change. As also noted above, the primary purpose of
part 70 permits is to compile sources' applicable requirements. To
meaningfully serve that purpose, part 70 permits must be kept
reasonably up-to-date. Sections 502(b) (9) and (10) confirm the need
to keep permits reasonably current. As also noted above, the
permitting authority and public have an interest in ensuring that
applicable requirements have been correctly identified and made
practically enforceable. Revising the permit within a reasonable time
to reflect an off-permit change gives the permitting authority and the
public an opportunity to provide that quality control. Accordingly,
EPA proposes that a source be required to submit an application to
revise its permit to reflect an off-permit change within 6 months of
commencing operation of that change. Six months should provide the
source with ample time to prepare a permit application and should not
prevent the source from commencing the change when it needs to.
Since a source could wait up to 6 months before filing a permit
revision application for a change that it had made off-permit, the
Agency is proposing to largely retain the current rule's requirement
that a source provide contemporaneous notice to the permitting
authority and EPA of off-permit changes. The requirement would be
revised to make clear that only changes that render a source newly
subject to an applicable requirement must be reported.
Contemporaneous reporting would provide the permitting authority and
EPA with an early opportunity to ensure that the source was operating
the change in compliance with both its permit and the requirements
applicable to the source as a result of the change.
C. Operational Flexibility Provisions
The current rule provides that a source can make several types
of changes without ever revising its permit. Most of these changes
are defined by the "operational flexibility" provisions of the rule,
so-called because they implement section 502(b)(10). That
section requires that the minimum elements of an approvable permit
program include provisions to allow changes within a permitted
facility without requiring a permit revision, so long as those changes
do not constitute a modification under any provision of title I or
increase emissions above permitted levels. An additional type of
change not requiring permit revision is that defined by the
"alternative scenarios" provision of the rule. Since alternative
scenarios do not implement section 502(b)(10), they are not discussed
in this section of the preamble, although they do provide another sort
of operational flexibility. A minor revision to the alternative
scenarios provision of the rule is proposed in the next section of
this preamble.
The current rule contains three provisions implementing
operational flexibility under section 502(b)(10).
Section 70.4(b)(12)(i) allows a source after providing the permitting
authority with seven days prior notice to contravene permit terms that
are unrelated to assuring compliance with applicable requirements
(section 502(b)(10) changes). Section 70.4(b)(12)(ii) authorizes a
permitting authority to allow a source to opt into an emissions
trading program contained in the SIP, but not necessarily in the
permit, to comply with limits established in its permit (trading based
on a SIP). Section 70.4(b)(12)(iii) requires permitting authorities
to allow a source to comply with an independent emissions cap in its
permit through emissions trading when the source proposes an
acceptable trading plan.
Concerns have been raised about some or all of these provisions
by State and local agencies, environmentalists, and industry. In
response to these concerns, EPA is proposing to revise some aspects of
the operational flexibility provisions and to clarify the operation of
others. This section of the preamble examines each of the operational
flexibility provisions and the proposed changes to it in turn. It is
important first to understand EPA's general theory for implementing
section 502(b)(10), however, before discussing the details of the
proposed rule changes.
1. Statutory Interpretation
As indicated above, EPA believes that section 502(b)(10) requires
State and local permitting authorities to provide a minimum level of
operational flexibility in a federally-approved part 70 program.
Several of the petitioners in the permits case, however, challenged
this view. They argued that section 506(a) allows permitting
authorities to establish additional permitting requirements that may
limit operational flexibility, and further that section 116 of the Act
secures the permitting authorities' rights to enforce any requirement
respecting air pollution control as long as it is no less stringent
than Federal requirements.
Section 116: Except as otherwise provided in sections [not
relevant to title V] nothing in this Act shall preclude or deny the
right of any State or political subdivision thereof to adopt or
enforce * * * any requirement respecting control or abatement of air
pollution; except that if an emissions standard or limitation is in
effect under an applicable implementation plan or under section 111 or
112, such State or political subdivision may not adopt or enforce any
emission standard or limitation which is less stringent than the
standard or limitation under such plan or section. [42 U.S.C. 7416]
The EPA believes the language of section 502(b) clearly settles
the issue. Section 502(b) requires EPA to promulgate regulations
establishing the "minimum elements" of a State or local operating
permit program. It then lists what these elements must include, and
section 502(b)(10) is one of the specified elements. Thus,
section 502(b) requires that operational flexibility as prescribed by
section 502(b)(10) be included in an approvable permit program.
Section 506(a) does allow a permitting authority to adopt
additional permitting requirements, but those additional requirements
must not be inconsistent with the Act, and the Act contains a mandate
for operational flexibility in a federally-approved permitting
program. Similarly, while petitioners correctly point out that
section 116 gives State and local authorities considerable autonomy in
operating an air pollution control program, section 116 does not alter
the mandate for this minimum element; it simply preserves the
permitting authority's right to enforce its own air pollution control
requirements.
Various groups have expressed differing views on how EPA should
require permit programs to meet the Act's mandate for operational
flexibility. Some argue that section 502(b)(10) merely authorizes the
permitting authority to put alternative scenarios into a source's
permit. For a source which anticipates making specific changes in its
operations, its permit may be written to identify and enforce the
applicable requirements to which the source would become subject on
making the specified changes. A permit containing such alternative
scenarios allows a source to change its operations from one scenario
to the other without requiring a permit revision. At the other
extreme, others argue that section 502(b)(10) allows sources, after 7
days' notice, to implement changes at the facility in contravention of
their existing permit terms as long as the total allowable emissions
from the permitted facility do not increase.
The Agency disagrees with both extremes. Interpreting
section 502(b)(10) to only mandate that programs provide for the
inclusion of alternative operating scenarios in permits makes the
operational flexibility provision a virtual redundancy. The Agency
does not believe that Congress would have included section 502(b)(10)
in the 1990 Act amendments if it were merely a mandate providing for
permits containing alternative scenarios, because section 504(a)
effectively requires the same. As explained above, section 504(a)
provides that a source's permit must contain the terms and conditions
necessary to assure compliance with applicable requirements. For a
source whose operations change in routine or foreseeable ways, its
permit should accordingly anticipate those changes and specify the
requirements that will apply.
On the other hand, EPA cannot support the idea that
section 502(b)(10) obliges permitting authorities to allow
unrestricted ad hoc proposals for emissions shifts across the
permitted facility after only 7 days' notice. This interpretation
would effectively allow sources at will to revise requirements of the
Act, revise the compliance requirements in their permits, or both.
Neither practice is defensible as a legal or policy matter, for they
would render the permit unenforceable, in violation of the mandates of
sections 502(b)(5)(A) and 504(a) that permit programs and the permits
themselves assure compliance with the requirements of the Act.
In view of the necessarily limited scope of section 502(b)(10)
changes, EPA interprets this section primarily as a mandate to promote
emissions trading within permitted facilities that is consistent with
the applicable underlying requirements. The EPA does not believe,
however, that Congress intended to create free-floating authority for
a source to revise unilaterally the compliance requirements in its
permit. The combination of sections 502(b)(5)(A), 502(b)(10), and
504(a) appears to contemplate changes in a facility's operations that
do not require rewriting the permit and that do not increase emissions
allowable under the permit. This is a reasonable description of a
well-crafted emissions trading plan with compliance terms governing
pre-established emissions trading parameters. The common theme shared
by the program elements EPA is proposing today to implement
section 502(b)(10) is that they provide opportunities for emissions
trading, while requiring that the trading plans be clearly enforceable
according to established compliance terms.
2. Section 502(b)(10) Changes
For the reasons presented above, EPA considers the potential
scope of section 502(b)(10) changes to be very narrow. Many State and
local agencies, however, contend that section 502(b)(10) changes are
illegal, unworkable, and unwise. They argue that these changes allow
a permittee to violate its permit terms without going through a permit
revision process, in violation of sections 502(b)(5)(A), 502(b)(6),
and 504(a). As a policy matter, they argue that the
section 502(b)(10) change process will be susceptible to misuse and
possible abuse by permittees seeking to confuse the permitting
authority and avoid enforcement actions.
As noted above, EPA views section 502(b)(10) changes as providing
an opportunity for a source to clean up its permit by avoiding
compliance with provisions that unnecessarily constrain its operations
in ways unrelated to implementing the Act's requirements. However,
EPA now believes that section 502(b)(10) changes will create a
mechanism that could potentially wreak havoc with orderly compliance
determinations under the permit.
As permitting authorities began developing programs and probing
the operation of this provision, it became clear that determining what
qualified as a section 502(b)(10) change is a delicate evaluation of
just what terms are absolutely necessary to enforce applicable
requirements. At its root, this evaluation involves the fundamental
question of applicability: are the permit terms justified by the
applicable requirements? The process for these changes allows the
source to make these determinations unilaterally and act on them after
only 7 days' notice, with the likelihood that neither the permitting
authority nor EPA will have reviewed them in any detail, and with no
systematic opportunity for review by the public. A permit with a
series of section 502(b)(10) notices attached to it voiding various
permit terms would be a cumbersome document to enforce at best, and
may include mistaken determinations of inapplicability which would
cloud the enforcement of the permit terms which are avoided by using
the section 502(b)(10) change notices.
The Agency believes that the risks posed by this mechanism far
outweigh the relatively slight contribution it makes to a permittee's
operating flexibility. One central goal of the permit program is to
settle disputes in the permit issuance process about the applicability
of the Act's requirements at a source and to keep such disputes out of
enforcement actions. Section 502(b)(10) changes could inject such
disputes into enforcement action where a facility claims to have
properly avoided a permit term that the permitting authority seeks to
enforce. Litigating the availability of the section 502(b)(10)
process to avoid the permit term would basically reopen the question
of the applicability of the permit term and the underlying applicable
requirement to the facility.
Moreover, the permit issuance process already protects a source's
interest in avoiding permit terms unrelated to the Act's requirements.
If a permit contains an unnecessary or extraneous term, the facility
will have good grounds to challenge it in the permit issuance process,
and ultimately to seek review in State court. This is the forum where
such fundamental disputes of applicability are appropriately resolved,
not with a unilateral 7-day notice. Section 502(b)(10) changes give
the source another opportunity for contesting applicability, and
arguably rewards a source that is not diligent in scrutinizing the
basis for the permit terms established in the permit issuance process.
Consequently, EPA proposes today to eliminate section 502(b)(10)
changes as a mechanism for implementing operational flexibility. The
Agency solicits comment on the rationale for this proposed
elimination.
3. Trading Under Permitted Emissions Caps
Section 70.4(b)(12)(iii), as described earlier, requires
permitting authorities to allow a source to comply with a certain type
of cap through emissions trading if it can suggest a workable trading
program. The type of cap eligible for trading under this section is a
cap the source undertakes in its part 70 permit to limit emissions
independent of any applicable requirement, usually to avoid an
applicable requirement to which the source would otherwise be subject.
Several State and local agencies have expressed concern that this
provision requires them to approve emissions trading proposals that
they would find inadequate absent the mandate of section 502(b)(10).
They are also concerned that the trading regime established pursuant
to this provision would supplant enforcement or other requirements
associated with underlying applicable requirements, perhaps undoing a
permitting authority's decisions regarding whether and how to include
emissions trading in its SIP. In addition, some State and local
agencies are concerned that this provision is designed to authorize
sources to create ad hoc bubbles after only 7 day's notice.
Industry, for its part, has objected to the fact that the benefit
of this provision is only available when a State or local agency, in
its discretion, allows a source to establish a cap in its permit.
They argue that this provision can hardly be considered adequate
implementation of section 502(b)(10)'s "mandate" to provide
operational flexibility if State or local agencies can unilaterally
block the use of the provision by simply refusing to grant caps.
The Agency proposes to retain this provision as the basic mandate
for implementing section 502(b)(10), but to revise it to address the
concerns expressed by permitting authorities and by industry. As to
permitting authorities' concerns, the proposed rule makes clear that a
permitting authority must allow trading if it determines that the
trading plan proposed by the source is consistent with all applicable
requirements (including any SIP provisions governing trading) and
meets the criteria for responsible emissions trades (described below).
The permitting authority retains its discretion to evaluate proposed
trading plans using those criteria. Of course, this provision also
creates an obligation for the permitting authority to evaluate
proposed trading plans, and its exercise of discretion will be subject
to the appropriate standard of review applicable in State court where
a permit applicant believes the permitting authority has arbitrarily
rejected a trading proposal. The permitting authority may not reject
a trading proposal simply because as a matter of policy it does not
allow trading in circumstances when SIP or other applicable
requirements would not otherwise restrict such trading.
The Agency also proposes to revise the language in the current
rule to clarify that any emissions trading plan developed pursuant to
this provision should operate independently of the measures a source
undertakes to meet (as opposed to avoid) applicable requirements.
This provision would require the permitting authority to consider
emissions trading plans designed to comply with emissions caps that
the permitting authority establishes in the part 70 permit in addition
to applicable requirements. The rule would go on to specify that the
permit must in addition require compliance with all applicable
requirements. Further, if an emissions cap is established in the
permit pursuant to a requirement in the SIP, and the SIP does not
provide for emissions trading to demonstrate compliance with the cap,
the mandate in the SIP for line-by-line compliance under the cap
controls. The section 502(b)(10) emissions trading provision
therefore attaches only where the part 70 permit alone creates the
cap, not where the underlying applicable requirement provides for one.
As to State and local agency concern over ad hoc bubble
authority, EPA proposes to clarify what is implicit in the current
rule. That is, the compliance terms governing emissions trading under
permit caps must be established along with the cap in a permit
issuance or revision process subject to public review and comment.
All the terms and conditions of any emissions trading plan must be
contained in the permit. The function of the 7-day notice under this
provision is not to establish the terms of emissions trading, but
rather to notify the permitting authority and EPA that the source is
utilizing the trading opportunities already provided for in the
permit.
In response to industry's concern, EPA is proposing to revise the
language of the current rule to require permitting authorities to
grant a source's request to establish as well as trade under an
independent cap, if the source proposes an acceptable cap and trading
plan. The Agency understands industry's concern about the potential
unavailability of trading under this provision as currently drafted,
although EPA did not expect permitting authorities to arbitrarily
reject well-crafted caps. As provided above for trading, permitting
authorities would have discretion to reject proposed caps if they were
not allowed under the relevant applicable requirement(s) or did not
meet the relevant criteria described below for trading under SIPs.
Permitting authorities would also have the same duty to scrutinize
proposed caps and approve them if they do meet these criteria.
The Agency believes that affording sources an opportunity to
establish an emissions cap and an opportunity to comply with that cap
through trading is an appropriate means of implementing
section 502(b)(10). Accordingly, a source could request an emissions
trading plan to meet a cap that would allow the source to shift
emissions among several emissions units operating under the cap. At
the same time, the permit must contain the emission limits and
compliance terms, including monitoring, that are necessary to assure
compliance with SIP limits and other applicable requirements. Indeed,
it would probably behoove the source to attempt to employ the same
monitoring regime for both the applicable requirements and the cap.
In addition, a source could request a cap that would restrict
total plant emissions of a particular pollutant (including emissions
of that pollutant from new or modified units and activities) at an
emissions level that would avoid a specific applicable requirement.
Two examples serve to illustrate traditionally accepted options for
such cap development. First, a source that must obtain a part 70
permit because it is already major for NOx emissions might wish to
avoid also being major for volatile organic compounds (VOC) emissions
in order to avoid the reasonably available control technology (RACT)
requirements that apply only to major VOC sources (e.g., for this
example, sources of 100 or more tons per year (tpy) VOC's are major).
To accomplish this result, the source could establish in its part 70
permit an enforceable emissions cap for VOC's of 99 tpy and an
enforceable means to track total plantwide VOC emissions from the
source (including any emissions from new or modified units).
Compliance with such a cap would have the effect of insulating the
source from the RACT requirement to which any major source of VOC's
would be subject.
Second, a plant-wide emissions limit could be set for a major
source of VOC's at a level which, if not exceeded, would allow the
source to avoid triggering preconstruction review under part C of the
Act even when it made physical changes that increased VOC emissions.
In this example, the cap would be set at a VOC emissions level which
is representative of actual source emissions over the preceding 5-year
(contemporaneous) period plus an amount just below the significance
level defining a major modification for VOC (i.e. 40 tpy). If a
practical, enforceable means can be defined in the permit to track
emission changes from new as well as existing emissions sources at the
plant, then compliance with the cap would avoid the triggering of
otherwise applicable PSD requirements.
In designing a cap such as in the second example, it is important
to remember that, by its terms, section 502(b)(10) cannot accommodate
title I modifications. As explained earlier, EPA believes that the
better interpretation of the term "title I modifications" would
include changes subject to a SIP-approved minor NSR program. Industry
representatives have expressed concern that under this interpretation
of title I modifications, the utility of section 502(b)(10) trading
could be significantly limited to the extent changes made pursuant to
a trading regime were minor NSR modifications. They contend that
under this interpretation such changes would be outside the scope of
section 502(b)(10) and would require permit revision, even if they did
not exceed the cap established in the permit.
The Agency believes that section 502(b)(10) trading plans need
not be circumscribed by State or local minor NSR programs. The effect
of a minor NSR program on trading plans would initially depend on the
scope and design of the minor NSR program. The more inclusive the
minor NSR program, the greater the likelihood that a trade might
involve a minor NSR modification. At the same time, a minor NSR
program that allows a source to undertake a practicably enforceable
emissions cap to avoid the need for modification-by- modification
application of minor NSR requirements would allow section 502(b)(10)
trading plans to avoid the same.
Regardless of the availability of emissions caps under a minor
NSR program, trading plans could be developed consistent with
section 502(b)(10) to the extent the plans anticipated and provided
for minor NSR requirements that the source would have to meet as a
result of changes made pursuant to the trading plan. As described in
more detail later in this preamble, permitting authorities could use
the device of "advance NSR" to avoid modification-by- modification
application of minor NSR requirements. The EPA expects that a source
may often be able to anticipate both the prospective minor
modifications that would occur at a facility as a result of trading,
as well as the technology or other minor NSR requirements that would
apply as a result of the modification. To the extent the trading plan
provided for these requirements to be met when the changes are made,
the changes themselves would at that time not trigger NSR and thus
would not be title I modifications.
It is also worth noting that the Agency's regulations at 40 CFR
51.160-164 give permitting authorities significant discretion in
shaping their minor NSR programs to meet the statutory requirements of
section 110(a)(2)(C) of the Act. This discretion would enable
permitting authorities to tailor their minor NSR programs to better
fit the desired shape of emissions trading programs under proposed
section 70.4(b)(12), provided that the structure of any program or cap
would adequately safeguard all applicable ambient constraints (e.g.,
national ambient air quality standards). This limitation might
constrain caps to VOC emissions trades unless additional ambient
safeguards are added for other criteria pollutants (e.g., PM-10 or
SO2). For instance, a permitting authority that wanted to make full
use of emissions trading under proposed section 70.4(b)(12) could as
part of its minor NSR program allow sources to establish plant-wide
emissions caps that are practicably enforceable for the combination of
new and existing emissions units at the plant site. Individual
changes under this cap would then not trigger either major or minor
NSR and would fall within the scope of section 502(b)(10).
These options for cap development should effectively address many
of the concerns that have been raised by industry about the potential
effect of minor NSR on a source's ability to trade. In addition to
these options, it should be noted that today's proposal contains other
provisions that would also be useful in addressing these concerns. As
previously described, the proposal would provide that changes
qualifying for off-permit treatment could be made before even a permit
revision application is submitted. Moreover, changes not qualifying
for off-permit treatment might qualify for the streamlined permit
revision tracks (described later in this notice) that allow a source
to begin operation of the change as early as the day it submits its
permit application. These proposed provisions would reduce delay and
opportunity costs to affected sources. The Agency solicits comment on
whether these aspects of the proposal together with the options for
cap development and "advance NSR" noted above would adequately address
the concerns raised by industry while assuring compliance with the
Act.
The foregoing discussion on caps points out the ramifications of
the intersection of minor NSR and part 70 permit revision requirements
generally for plant-wide caps, whether or not developed pursuant to
the part 70 provisions implementing section 502(b)(10). Plant-wide
caps currently are being used to both limit applicability (as in the
case of a NSR cap) and as an air quality management tool (as in the
case of a ratcheting cap within the Regional Clean Air Incentives
Market program in the South Coast Air Quality Management District of
California). The EPA believes that plant-wide caps represent a sound
alternative for sources seeking to maximize their production
flexibility while still meeting Act mandates. However, under either
the current or proposed part 70, care must be used in constructing
caps to avoid triggering part 70 permit revision requirements.
The Agency wishes to clarify that neither the proposal nor the
current rule would interfere with the establishment of other
plant-wide caps set by permitting authorities that are in addition to
applicable requirements. It notes that changes at a source operating
in compliance with a plant-wide cap developed by a State or local
agency would not need a permit revision, provided the change did not
violate an existing permit term or trigger an applicable requirement
to which the source was not previously subject.
4. Trading Under the Implementation Plan
As noted above, section 70.4(b)(12)(ii) authorizes, but does not
require, permitting authorities to allow a source to engage in
emissions trading as provided by the applicable implementation plan
without revising its permit. Environmental groups argue that this
provision creates the risk of a "shell game" in which neither the
permit nor the SIP contain adequate compliance requirements to assure
that the emissions trades allowed are enforceable. They believe that
after incorporating carefully crafted emission limits into the permit
at issuance, a source could send in a 7-day notice to opt into a SIP
trading regime that no one scrutinized at permit issuance.
In response to this concern, the proposed part 70 revisions would
require that the permit identify as part of a permit issuance,
renewal, or significant permit revision process those permit terms
which may be replaced with the emissions trading provisions in the
implementation plan.
A similar concern has been expressed that this provision allows
sources to replace enforceable emission limits in the permit with as
yet undefined trading programs in SIP's. The Agency's response is
that the trading provisions which a source may use under this
provision must be approved into the SIP through a process that
involves rulemaking on the State or local level (including a hearing)
and on the Federal level with public notice and an opportunity for
public comment. As EPA stated when it promulgated this provision,
there are currently no approved SIP's that are designed to implement
these trading provisions (57 FR 32268). If permitting authorities
choose to develop such SIP requirements, the public will have ample
opportunity to scrutinize the ability of a SIP trading plan to supply
the compliance terms that would replace permit terms.
Furthermore, EPA envisions that there will be substantial effort
required to formulate such SIP provisions, which would be roughly
analogous to developing a general permit within the SIP consistent
with the criteria for emissions trading outlined below for classes of
emissions trades at source categories. One reason EPA has made this
method for implementing section 502(b)(10) optional for permitting
authorities is that it would entail a significant restructuring of
existing SIP's to accomplish. Moreover, such SIP's would have to
supply sufficient detail to enforce compliance with the level of
emissions reduction required by the permit term that the SIP's
requirements could replace. If any party believed that a proposed SIP
revision did not contain sufficiently clear or detailed compliance
requirements, they could challenge the SIP proposal or the proposed
permit that identified the units eligible for such trading based on
its failure to include enforceable emission limitations consistent
with section 110(a)(2)(A) of the Act. Therefore, there is no risk of
a "shell game" in which the public searches fruitlessly in the permit
or the SIP for enforceable compliance terms.
5. Criteria for Emissions Trading Provisions
As a result of the above interpretation of section 502(b)(10) and
other elements of the part 70 rule, EPA anticipates that State and
local permitting authorities will be evaluating proposals for
emissions caps and trading plans in a variety of contexts. Therefore,
EPA believes it is useful to emphasize the key criteria it has
identified for evaluating emissions caps and trading caps. These
criteria are drawn from EPA's Emissions Trading Policy Statement
(51 FR 433814 (Dec. 4, 1986), hereinafter the ET Policy) and the
final Economic Incentive Program Rules (59 FR 16690 (April 17, 1994),
hereinafter the EIP rule. See also the preamble to the final part 70
rules (57 FR 32268). Although each of these prior statements
discusses emissions caps or trading in a slightly different context
(e.g., setting up an entire program as opposed to determining an
emissions reduction credit at an individual source or establishing a
plant-wide emissions cap below which a particular requirement such as
major NSR or 112(g) would not apply for that pollutant), there are
critical criteria that run through all responsible emissions caps or
trading plans as they would apply in the context of this rule.
a. Quantifiable. Emissions being capped or traded in an
emissions trading plan must be quantifiable. There must be a
workable, reliable method for determining the amount of emissions
being counted towards a cap or being traded. "Quantification may be
based on emissions factors, stack tests, monitored values, operating
rates and averaging times, process or production inputs, modeling, or
other reasonable measurement practices. The same method of
calculating emissions should generally be used to quantify emission
levels both before and after the reduction" (ET Policy, 51 FR 43832,
see also final EIP preamble, 59 FR 16689). For example, emission
sources that are regulated by work practice standards because
emissions are difficult to quantify using an emission limit would be
unlikely candidates for inclusion in an emissions cap or trading plan,
absent some new development in measurement or monitoring methodology.
b. Enforceable. The emissions cap or trading plan must be
embodied in a federally-enforceable instrument with clear and
unambiguous compliance requirements which EPA, the permitting
authority, and citizens may readily enforce as a practical matter.
Typically this will be the part 70 permit, although, as discussed
above, it may also be the SIP. An emission limit must also be
practicably enforceable, with monitoring and recordkeeping
requirements that match the emissions limits and averaging time
designed into the emissions trading plan. "Bubbles should be
incorporated in an enforceable compliance instrument which requires
recordkeeping based on the averaging period over which the bubble is
operating, so it may easily be determined over any single averaging
period that bubble limits are being met" (ET Policy, 51 FR 43832).
c. Replicable. Caps and trading procedures should be structured
so that two independent entities applying the procedures would obtain
the same result when determining compliance with the emission cap or
trading provisions. In the context of an emissions cap or trading
plan approved into a permit, this involves objective methods of
quantifying and accounting for emissions. "All source-specific
program requirements must be structured in such a way that both
inspectors and facility owners can judge the compliance status of a
facility at any time. * * * This will require an authoritative,
reliable repository of all relevant information at each facility" (EIP
rule, 59 FR 16690).
d. Surplus. Where a permitting authority is establishing SIP
rules to authorize trading at permitted facilities, as described
above, those rules must be consistent with the assumptions made in the
demonstration of reasonable further progress, attainment, or
maintenance supporting the SIP. For example, emissions reductions
which a source may use as an emissions reduction credit in any trading
rule must not already be relied upon for SIP planning purposes (see
generally ET Policy, 51 FR 43832), nor may the reductions be otherwise
required under any provision of the Act.
e. Accountable. Correspondingly, the reasonable further
progress, attainment, or maintenance demonstration must account for
the aggregate effect of the emissions cap or trades allowed under any
such cap or trading rules (see 57 FR 32268).
D. Other Elements of the Rule Providing Operational Flexibility
Beyond the mandate in section 502(b)(10), the current rule
requires that permit programs contain other elements providing
operational flexibility. The Agency is proposing to retain these
provisions with minor adjustments subsequently described.
1. Emissions Trading Based on Applicable Requirements
Section 70.6(a)(8) of the current rule requires that permits
state that no permit modification shall be required under approved
economic incentive and similar programs for changes that are provided
for in the permit. Section 70.6(a)(10) further provides that permits
must also include terms and conditions for emissions trading where the
applicant requests them and the underlying applicable requirements
provide for emissions trading without requiring a case-by-case review
of each emissions trade.
Several of the petitioners in the permits case expressed concern
that the rule is not clear that economic incentive programs must be
approved in the SIP and that the permit terms and conditions governing
the trading must be established in the permit pursuant to procedures
that involve public comment. They also objected that these provisions
improperly require a permitting authority to include trading
requirements in a permit, preempting their authority to deny emissions
trading to sources.
The Agency is not proposing to change these provisions
significantly, other than to clarify in section 70.6(a)(8) that any
economic incentive or similar program or process providing for
emissions trading in the permit must first be approved in an
implementation plan or other applicable requirement. Both provisions
read in context make clear that the permit must contain the compliance
terms and conditions governing any emissions trades authorized in the
permit pursuant to these requirements. Section 70.6(a)(8) requires
that any emissions trading changes must be provided for in the permit.
Nothing in that section removes the obligation for all permits to have
terms and conditions pursuant to Secs. 70.6(a) and (c) to assure
compliance with all permit terms, including the trading provisions.
Section 70.6(a)(10) explicitly refers to the rest of Secs. 70.6(a)
and (c) in directing that compliance terms must be in the permit.
Therefore, when the permit is issued, the public will have ample
opportunity in the permit issuance process to scrutinize those
compliance terms governing the emissions trades.
The Agency does not agree that these trading provisions preempt
the discretion of State and local permitting authorities. Rather,
these provisions require a permitting authority to include in the
permit emissions trading opportunities already contained in the
underlying applicable requirements. Note, however, that where the
opportunity for trading to meet an applicable requirement is optional
and subject to the discretion of the permitting authority, this
discretion is limited by the requirement in section 70.6(a)(10) which
requires the permitting authority to provide for such trading.
Commenters may raise any complaint they may have with the
appropriateness of mandatory emissions trading when the applicable
requirement is established, through either an approval or rulemaking
process for a SIP or Federal standard. The permitting authority will
be required to incorporate the applicable requirement and its trading
opportunity into the permit.
2. Alternative Operating Scenarios
Section 70.6(a)(9) requires that reasonably anticipated
alternative operating scenarios must be provided for in the permit to
the extent all scenarios comply with applicable requirements. The
current rule specifies that the permitting authority include such
scenarios in the permit at the request of the source. As explained
above, the inclusion of all reasonably foreseeable alternative
scenarios in the permit is important to the permit's
comprehensiveness. The Agency is therefore proposing a minor revision
to this section of the rule to make clear that the permitting
authority is authorized to include in a source's permit the
alternative scenarios that it identifies as likely.
Section 70.6(a)(9) further requires that a source keep a
contemporaneous record of all changes among alternative scenarios in
an on-site log. Several petitioners in the permit case have
challenged the use of an on-site log to record changes among
scenarios. They argue that the risk of post hoc manipulation of an
on-site log is too great, potentially allowing a facility to change
records of which scenario was in effect at specific times in an effort
to reconcile the recorded scenarios with the monitoring data the
source must submit semi-annually.
In response to these concerns, today's proposed revisions to
part 70 would allow a source to use an on-site log of changes among
operating scenarios when each of those scenarios has monitoring that
meets two conditions. First, each scenario must be monitored in a way
that yields objective, contemporaneous measurement and recordation of
the relevant emissions or parameters. Second, each scenario must have
a sufficiently different means of measurement that the contemporaneous
record reveals the scenario under which the source was operating when
the record was made. In any other case, the facility would be
required, for each week during which one or more changes to a
different operating scenario was made, to copy the on-site log of
changes for that week and mail it to the permitting authority. These
proposed new provisions would assure that either the scenarios are
monitored in a way that inherently reveals the scenario in effect at
all times, or the permittee reports changes among scenarios within a
sufficient period of time to avoid any significant possibility of
after-the-fact tampering.
The Agency invites comments on two aspects of this proposal to
revise the reporting requirements associated with alternative
scenarios. First, EPA is concerned that this framework for reporting
would create another layer of complexity and paperwork in order to
address a risk that may be theoretically important, but actually
small. Subsequently in today's notice, EPA proposes to clarify that
the required monitoring reports must indicate the alternative scenario
that was in operation during each monitored period. In light of this
clarification, EPA requests information concerning the need for and
burden of the proposed changes to the alternative scenarios reporting
requirements. The Agency is particularly interested in permitting
authorities' experiences with monitoring alternative scenarios. In
their experience, has tampering with compliance reports been a
problem? Would the proposed revisions effectively address any such
problem? Specific accounts of experiences and practices in the field
would assist EPA in deciding whether to include the proposed revisions
in the final rule.
Second, assuming EPA promulgates revisions requiring reporting of
changes between alternative scenarios, the Agency is interested in
receiving comments on the appropriate interval for reporting. Weekly
reports are proposed, but EPA requests comments and information on
whether monthly or quarterly reporting would be sufficient to
significantly reduce any risk of tampering with the relevant records.
3. Advance NSR Approval
The Agency also proposes to allow the use of alternative
scenarios to provide advance approval of construction or modification
subject to NSR. If a permit applicant can anticipate its construction
or operational needs with sufficient particularity, the permitting
authority may be able to build into the permit an alternative scenario
that sets forth and makes enforceable the applicable NSR requirements
to which the source would become subject on constructing or modifying
its operations in that fashion. The permitting authority would
essentially be approving a construction permit in advance and placing
its terms within the operating permit. The opportunity for the source
to act on the permission to construct would expire consistent with the
limits in the underlying program for the duration of a construction
approval (e.g., a PSD permittee must generally begin a continuous
course of construction within 18 months of permit issuance). Where
the applicable NSR requirement(s) would not allow the source to
implement an advance NSR change as an alternative scenario through the
full term of the permit, EPA solicits comment on allowing a permitting
authority to extend the availability of the advance NSR option subject
to certain additional constraints. For example, when the period over
which a specific control determination is authorized would be
exceeded, the permit might still provide that the advance NSR option
remains available to the source if the source resubmits the control
approach to the permitting authority before its expiration and it is
reaffirmed. If no change from the originally approved approach is
required, the source could again have the option to implement the
related operational change as an alternative scenario.
The Agency anticipates that the advance opportunity may prove
useful in enhancing the flexibility under the permit for facilities
that can anticipate their expansion needs with reasonable specificity.
Comment is invited on the use of "advance NSR" for any of the
following programs: nonattainment area NSR under part D of the Act,
PSD under part C, minor NSR under section 110(a)(2)(C), and
modifications at HAP's sources under section 112.
E. Permit Revisions
1. Introduction
As set forth above, the only changes requiring a permit revision
are those that cannot be operated without (1) violating a permit term,
or (2) rendering the source subject to a requirement to which the
source has not been previously subject. The number of changes
requiring permit revision can be minimized, moreover, through the use
of alternative scenarios and operational flexibility provisions, as
well as "worst-case" permitting (i.e., writing permits to reflect
maximum allowable emissions). In view of these provisions, EPA
believes that a permit can and should be crafted to accommodate a
broad spectrum of changes at the covered source.
There is a limit, however, to a source's ability to predict the
future, and some changes at a facility will require permit revision.
The issue then becomes how to revise the permit. Of course, changes
qualifying for off- permit treatment need not await permit revision
before being operated. But for all other changes requiring permit
revision, the procedures for revising the permit will be key to a
source's ability to make changes in time to meet market demands.
Finding the right balance between industry's need for flexibility and
the public's interest in permit decisionmaking has been a challenge
for the Agency.
The current rule establishes a three-track revision process that
provides differing levels of review depending on the nature of the
change being made. Administrative amendments receive the least
process (i.e., no public, affected State, or EPA review), and are
consequently limited to changes that either are trivial in nature or
have already undergone a preconstruction permit process (e.g., NSR)
that met part 70 permit content and process requirements (see
section 70.7(d)(1)(v)). Minor permit modifications receive EPA and
affected State review, but only after the source has begun to operate
the change. They receive no public review, and are accordingly
limited to changes that, among other things, are not modifications
under any provision of title I and do not involve case-by-case
determinations. Significant permit modifications are processed using
full permit issuance procedures, including public, affected State, and
EPA review. All changes not eligible for administrative amendment or
minor permit modification treatment must be processed as significant
permit modifications. In addition, such changes may not be operated
until the permit has been revised to accommodate the change.
Related to these procedures is the availability of a "permit
shield" against enforcement action. Under section 70.6(f) of the
current rule, States are authorized to include in a source's permit a
provision stating that compliance with the conditions of the permit
shall be deemed compliance with any applicable requirement to which
the source was subject as of the date of permit issuance and which is
addressed by the permit. In other words, so long as a source complies
with its permit, and its permit indicates which applicable
requirements do and do not apply to the source, the source may not be
prosecuted for failing to comply with a requirement that the permit
failed to incorporate either correctly or at all. The rule, however,
does not extend the shield to permit terms that are revised via
administrative amendment or minor permit modification procedures,
because of the lack of public process associated with those permit
revision tracks.
As noted above, many of the issues raised in the part 70 lawsuit
relate to one or more of the revision tracks. State petitioners are
concerned that the rule allows sources to make changes eligible for
administrative amendment and minor permit modification procedures
without adequate permitting authority review or prior approval.
Environmental groups and some State litigants argue that public notice
and opportunity for comment must be provided for minor permit
modifications; otherwise, sources will be able to rewrite with
virtually no process substantive permit terms that had been
established through full public process. They also assert that the
public's right under the statute and the rule to petition EPA or the
courts to overturn permitting decisions is effectively mooted in the
case of minor permit modifications by the rule's failure to provide
public notice of those changes.
Industry, on the other hand, believes that the current rule's
revision procedures are more burdensome than necessary for small
changes or changes that have undergone prior permitting authority
review. In general, they argue that there is some level of changes
that may be incorporated into a part 70 permit without public process
on de minimis grounds. In particular, they contend that changes that
have already received preconstruction approval (e.g., pursuant to NSR)
do not warrant further process before being incorporated into a
part 70 operating permit. They therefore recommend that the rule
allow such changes to be treated as administrative amendments and
included in a part 70 permit without public, affected State, or EPA
review. They also suggest that minor permit modifications do not
warrant affected State and EPA review and should get the benefit of a
permit shield.
Clouding the debate over the sufficiency of the current rule's
revision procedures has been the issue of the proper interpretation of
the phrase, "modifications under any provision of title I." As
indicated above, under the current rule title I modifications are not
eligible for minor permit modification procedures. The scope of minor
permit modifications thus depends in part on the interpretation of
"title I modification." Under a narrow reading of that term, a change
subject to minor NSR can be operated before affected State and EPA
review and then incorporated into a part 70 permit without public
review, provided the change is not prohibited by any of the other
applicable "gatekeepers." Under a broad reading, a minor NSR change
can be operated only after the permit has been revised via significant
permit modification procedures providing for full public process. The
meaning of title I modification thus determines whether the public
gets any notice of permit actions involving a minor NSR change and
whether sources can operate such a change as soon as they apply for a
part 70 permit revision or as long as 18 months afterwards.
The Agency is concerned that the current rule requires either too
little or too much public process depending on how the title I
modification gatekeeper is read. As explained previously, EPA
believes that minor NSR programs play an important role in the
statutory design for achieving clean air. Not only do those programs
ensure that minor sources do not interfere with an area's attainment
of air quality standards, they also provide sources with a means of
establishing federally-enforceable limits on potential to emit that
sources may rely upon to avoid more burdensome requirements.
Accordingly, EPA considers it inappropriate to allow all minor NSR
actions to escape public review altogether. On the other hand, EPA
does not believe that all or even most minor NSR changes warrant the
full public procedures required for significant permit modifications.
All changes subject to minor NSR by definition have undergone prior
permitting authority review, and many involve at most only small
increases in emissions. More streamlined procedures should thus be
sufficient for incorporating those changes into the part 70 permit.
In attempting to resolve the issues concerning permit revision
procedures, EPA has sought to strike the appropriate balance between
permitting integrity and flexibility. Title V of the Act provides for
a number of procedural safeguards to ensure the integrity of the
permitting process. These safeguards include EPA review of, and
appropriate opportunities for public and affected State participation
in, permit decisionmaking (see sections 505(a) and (b) and 502(b)(6)).
At the same time, title V calls for permit procedures that are
"streamlined" and "expeditious[]" (see section 502(b)(6)). The Agency
believes the statute affords it broad discretion to fashion permit
revision procedures that are reasonable in light of the environmental
interests at stake. In developing the proposed permit revision
procedures, EPA's approach has been to provide procedural safeguards,
including opportunities for public and affected state participation,
that are commensurate with the potential environmental significance of
the change being sought. Thus, for the most environmentally
significant changes, the greatest procedural protections would be
afforded, including a 30-day public comment period and permitting
authority final decision before the change could be made. For
environmentally insignificant changes, however, EPA has authority to
forego procedural protections, including public and affected State
review, on de minimis grounds (see Alabama Power Co. v. Costle, 636
F.2d 323, 357-361 (D.C.Cir. 1979). To ensure that the changes are
indeed insignificant, though, EPA proposes to provide for abbreviated
public review after the change has been made and it solicits comments
on this approach.
As detailed below, EPA is proposing a four-track system that
matches the amount of public process provided to the potential
environmental significance of the change, taking into account the
amount of prior public review. Only the most significant changes that
had received little or no prior public review would be processed as
significant permit revisions requiring a 30-day public comment period
and an opportunity for a public hearing before the source could
operate the change. The large majority of changes requiring permit
revision would be processed using one of the three more streamlined
tracks, with the choice of track depending primarily on the size of
the change and the amount of public process the change received prior
to the part 70 revision process. To the extent a change was subjected
to public review prior to the part 70 process (e.g., as a result of
preconstruction review), it would receive abbreviated or no additional
public review during the part 70 process. To the extent a change was
small in terms of emissions impact, even if no prior public review was
provided, it would receive only post hoc public review during the
part 70 process. In addition, the permit shield would be available
for some of the changes that underwent streamlined processing.
The following section of the preamble provides an overview of the
four permit revision tracks being proposed and then examines each of
the tracks in turn, beginning with the most streamlined. While EPA
believes that the proposed framework better balances the interests of
industry and the public in the permit revision process, it is
nonetheless concerned that it may be too complex to be readily
implemented. The Agency thus solicits suggestions as to how the
proposed procedures might be simplified while generally retaining the
balance struck by the overall framework.
2. Overview of Proposed Revision Procedures
EPA today is proposing changes to the current rule's revision
procedures to provide a streamlined process that includes appropriate
opportunities for public participation. Briefly stated, the Agency
proposes to largely retain the current rule's administrative amendment
procedures, which provide no public, affected State, or EPA review and
allows a source to operate an eligible change upon submission of a
permit revision application. (In operating a change before its permit
is revised, the source accepts the risk of being found liable for
violating its existing permit if its revision application is later
denied.) Indeed, EPA is proposing to ease one of the requirements for
use of administrative amendments. Under the current rule, any change
that undergoes a prior preconstruction review process that (1)
provides public and affected State review opportunities substantially
equivalent to those required by the part 70 rule, (2) addresses
part 70 permit content requirements, and (3) provides a 45-day EPA
objection opportunity is eligible for administrative amendment
incorporation into the part 70 permit. Under today's proposal,
however, a source would no longer have to wait until the end of EPA's
objection opportunity to construct the requested change. Instead, the
source could construct the change upon receiving preconstruction
approval and could operate the change at its own risk 21 days after,
or upon submission of, an administrative amendment application,
depending on the nature of the change. The Agency's objection
opportunity would begin only upon submission of the administrative
amendment application.
The Agency also proposes to create a new permit revision track
for changes having a de minimis effect on emissions. A source could
generally operate at its own risk any change at a small unit or a
small change at a big unit as early as the day it submits a permit
revision application. To ensure the continuing enforceability of
controls on big units, a small change at a big unit would qualify for
de minimis processing only if no unauthorized changes to compliance
terms were needed. Public and affected State notice and opportunity
to challenge the eligibility of the change for the process would be
provided after the change was made. The Agency would not review de
minimis changes unless petitioned to do so. Today's notice takes
comment on a range of possible size thresholds for defining what units
and what changes would be eligible for de minimis change processing.
Extensive revisions are being proposed to the current rule's
minor permit modification provisions to create the minor permit
revision track. Public and affected State notice and a 21-day
opportunity to challenge the eligibility of the change for the process
would be provided before the source could operate the change.
Following the close of the comment period, however, the source could
operate the change at its own risk if no commenter objected and the
permitting authority or EPA did not act to disapprove the change by
then. If a commenter did object, the source could operate the change
starting 1 week after the close of the comment period if the
permitting authority or EPA did not act to disapprove the change by
then. A public commenter whose objection was not heeded would have
recourse to the courts, either to require the permitting authority to
respond to the objection or to challenge the agency's rejection of it.
The permitting authority would be required to take final action on the
revision application within 60 days of receiving it or 15 days after
EPA's 45-day review period had expired.
In view of the public participation opportunities provided, the
scope of changes eligible for minor permit revision procedures would
be significantly expanded. Most changes that had undergone a
preconstruction approval process that was not upgraded to part 70
standards would be eligible for minor permit revision procedures. In
addition, a permit shield would be authorized for all changes so
processed.
The current rule's significant permit modification procedures
would remain unchanged in the significant permit revision track.
However, as a result of the changes to the other revision procedures,
the scope of significant permit revisions would be greatly narrowed.
Changes that conflicted with the gatekeepers to the more streamlined
permit revision tracks would have to be processed using significant
permit revision procedures. For example, any change to a permit term
which establishes an emissions limit or cap developed through a
part 70-only permit action could not be made pursuant to the more
streamlined tracks and would have to undergo significant permit
revision processing. Any change that involved large or complex
netting transactions that did not receive adequate prior public review
would also be subject to the significant permit revision process.
It should be noted that the permit revision procedures set forth
in this proposal would represent minimum requirements for permit
programs. Permitting authorities would be free, as they are under the
current rule, to establish revision procedures that are more stringent
than those proposed here. Some State or local agency laws, for
example, do not allow a source to operate a change until after it has
received the affirmative approval of the permitting authority to do
so. Those permitting authorities could include such provisions in
their regulations implementing part 70.
While EPA believes that the four-track revision process outlined
above better matches the opportunities for public participation to the
environmental significance of the change, it understands that a
four-track process requires sources and permitting authorities to make
further distinctions between changes than the current three-track
process requires them to make. The basic eligibility criteria for the
four tracks are easy to comprehend, but the interaction of the
relevant gatekeepers may make the task of identifying the appropriate
revision track for a given change difficult. In section V. of this
preamble are several flow charts that list the relevant questions to
be asked in the proper order to ascertain what revision track applies
to a particular type of change. While the charts do not cover all
types of changes, they address the most common ones (e.g., major and
minor NSR), and should assist in identifying the proper revision
process for those changes. They also illustrate the application of
and interaction between the various gatekeepers. The EPA solicits
comments on whether all of the proposed gatekeepers are necessary and
suggestions as to other ways the revision process might be simplified.
It should also be noted that EPA is considering, and soliciting
public comment on, a variation on the revision tracks just described
that would provide for more flexible treatment of changes to
compliance monitoring permit terms. At the end of the "Permit
Revision" section of this preamble, EPA delineates this alternative
approach to changes in compliance monitoring terms. The Agency
developed this approach after the close of its discussions about the
flexibility provisions with the permits case litigants. It is
therefore presented separately. At the same time, EPA believes the
alternative approach to changes in compliance monitoring terms better
matches the significance of potential changes with the amount of
public process required. For instance, under the proposal just
described, the de minimis permit revision process could be used to
change any compliance monitoring term associated with a change at a
small unit, but could not be used to change any compliance monitoring
term associated with a de minimis change at a big unit, unless the
change had been previously approved in a process involving
substantially more public, affected State, and EPA participation. The
alternative subsequently described, however, would allow specified
types of changes to compliance monitoring terms to be made pursuant to
de minimis permit revision procedures. The overall effect of the
alternative would be to partially limit the types of de minimis
changes that could be made at small units but significantly expand the
types of de minimis changes that could be made at big units.
The proposed permit revision tracks first discussed in this
preamble should thus be viewed as representing one approach to changes
in compliance monitoring terms; the latter section of the preamble
presents another. The Agency solicits comment on the relative costs
and benefits of the two approaches. It should also be pointed out
that the flow charts mentioned above reflect the first approach to
changes in compliance monitoring terms. They would have to be changed
if EPA adopted the alternative approach later described.
3. Administrative Amendments
a. Current Administrative Amendment Procedures.-- (1) Scope.
Currently, part 70 allows three categories of changes to be processed
under the administrative amendment procedures of section 70.7(d). The
first category of changes is generally clerical in nature. It
includes correction of typographical errors; changes in the name,
phone number, or address of persons identified in the permit; and
changes in ownership if no other change is necessary and certain
conditions are met concerning transfer of ownership. The second
category includes increases in the frequency of required monitoring or
reporting. Other changes similar to the ones just described may also
be made as administrative amendments if the permitting authority
receives authorization from EPA to treat them as such at the time of
program approval.
The third category of changes that existing part 70 classifies as
an administrative amendment includes requirements of a NSR permit,
provided the NSR program under which the permit was issued meets
procedural requirements substantially equivalent to those of Secs.
70.7 and 70.8 of the rule and provides for compliance requirements
substantially equivalent to those of section 70.6. A NSR program is
termed "enhanced" if it meets all of these requirements.
Section 70.7(d) also provides that acid rain sources are governed
by any administrative amendment procedures promulgated under title IV.
(2) Process. The current part 70 administrative amendment
process is uncomplicated. The permitting authority must take final
action within 60 days after receiving a request from a source for an
administrative amendment, and may incorporate the requested change in
the existing part 70 permit without providing notice to the public or
affected States, but must submit a copy of the revised permit to EPA.
The source may implement the requested change immediately upon
submitting a request. The permitting authority may provide a permit
shield only to administrative amendments incorporating "enhanced" NSR
permit requirements.
b. Proposed Administrative Amendment Procedures.-- (1) Scope.
Today's proposal retains the provisions of the current rule at Secs.
70.7(d)(1)(i-iv) allowing certain clerical changes, changes that
result in more frequent monitoring and reporting, and changes of
ownership or operational control to be made as administrative
amendments. Also retained is the provision allowing State or local
permit programs to establish other changes similar to those in Secs.
70.7(d)(1)(i-iv) provided they are approved by EPA.
In addition, the proposed revisions would allow changes that
undergo a "merged" part 70/NSR or part 70/section 112(g) process to be
incorporated into the part 70 permit as administrative amendments. To
be merged, a part 70/NSR or part 70/section 112(g) review process
would have to address and comply with the permit application and
content requirements of both part 70 and NSR or section 112(g)
programs, and provide for certain minimum elements of public process.
These elements are:
(i) Prior (i.e., preconstruction) notice to the public, EPA, and
affected States of proposed NSR or section 112(g) actions;
(ii) A public comment period of at least 30 days for major NSR or
section 112(g) actions, and for minor NSR changes, as many days as
required by the State or local agency's existing minor NSR regulations
as of November 15, 1993, but not less than 15); and
(iii) An opportunity for a public hearing for major modifications
under part C or part D of the Act.
The public comment period, and hearing if required, would occur
prior to any permitting authority approval for the source to
construct. However, unlike the current rule, EPA's opportunity to
object to the change would not need to be provided prior to
construction or modification of the source. Rather, EPA's opportunity
to object could occur at the time the source applies for the
administrative amendment. A permitting authority or source would
remain free to provide for EPA's objection opportunity to occur prior
to construction, if it preferred not to run the risk of EPA's
objecting to the change after construction. Today's proposal uses the
term "merged" to refer to a part 70/NSR or part 70/section 112(g)
process that meets the requirements set forth above, to distinguish it
from one meeting the current rule's requirements for "enhanced" NSR,
which includes a preconstruction EPA objection opportunity.
Permitting authorities could also obtain approval from EPA in
their part 70 programs to conduct merged processing on a case-by-case
basis. That is, permitting authorities could be authorized to provide
merged process for all or some of their preconstruction determinations
or to allow sources to elect merged process for only individual
changes. State and local agencies that provided merged process on
only a case-specific basis would be required to state when they were
doing so in the initial notification of the permit action sent to EPA.
Under both the current part 70 and the proposed revisions, State
and local part 70 programs must provide adequate, streamlined, and
reasonable procedures for expeditious review of permit revisions
(section 70.4(b)(13)). A permitting authority that wished to provide
for merged NSR changes would, therefore, have to set out the
eligibility criteria and process for merged NSR changes in its part 70
program. Depending on existing State or local statute or regulatory
provisions, no changes would be required to existing State or local
NSR programs. The EPA solicits comments, however, on whether changes
in a State or local agency's policies or procedures (as opposed to
regulations) would be sufficient to provide for merged processing in
their part 70 program.
Finally, EPA wishes to make clear that a merged NSR program could
be one which totally integrates the preconstruction and part 70 review
requirements into a single permit system. That is, a part 70 permit
under such a system could be revised through an operating permit
revision process that is integrated with the preconstruction review
process resulting in a single permit containing both preconstruction
and operating permit terms and conditions, rather than a merged NSR
process followed by an administrative amendment process to incorporate
the change into the separately existing part 70 permit. Such an
integrated approach would be allowable under today's proposal in that
NSR determinations as well as NSR permit terms and conditions could be
incorporated administratively into a part 70 permit after EPA's
objection period had ended.
(2) Process for All Administrative Amendments. For all changes
that qualify as administrative amendments, the following procedures
would be used. First, the source would submit to the permitting
authority an application for an administrative amendment. The
application would include a description of the change and supporting
information as necessary to allow the permitting authority to review
the request. The application would also contain a demonstration and a
certification that the change is eligible for the administrative
amendment process and a proposed addendum to the permit reflecting the
new permit terms that would apply as a result of the change. The
addendum would specify that, unless disapproved, it is effective 60
days from the date the permitting authority received the request.
In its part 70 program, the permitting authority may authorize a
source, at its own risk, to operate the change in compliance with the
terms of the proposed addendum after submitting its request. The
addendum would be incorporated into the permit if the permitting
authority did not disapprove the administrative amendment request
within 60 days after receipt. The permit would be amended by
attaching the proposed addendum to the permit. A copy of the addendum
would then be provided to EPA. Any administrative amendment to the
permit would be designated as such. No permit shield would be
available for changes qualifying as administrative amendments under
Secs. 70.7(e)(1) (i)-(iv).
(3) Process for Merged Program Changes. Changes that had
undergone merged part 70/NSR or part 70/section 112(g) procedures
would generally follow the process just outlined for administrative
amendments with some important additional steps reflecting the greater
environmental significance of these changes. First, the source would
be required to submit with its application an affidavit acknowledging
that if it operates the change before its permit is revised, it may be
liable for violating the terms of its existing permit in the event
that its revision request is denied. (An affidavit would be required
only for merged program changes because they would typically involve
significant changes to substantive permit terms.) Second, the source
would submit to EPA, as well as the permitting authority, a copy of
the administrative amendment request, including the proposed addendum.
For major NSR and section 112(g) changes, the source would be required
to wait at least 21 days after EPA receives the request or 21 days
after the permitting authority makes its NSR or section 112(g)
determination, whichever is later, before operating the change at
its own risk. For all other changes (i.e., minor NSR), the source
could operate the change at its own risk under the proposed addendum
on the day EPA receives the request, except where this process would
be prohibited by applicable requirements. The EPA would have 45
days from receipt of the request (or 45 days from the day the
permitting authority makes its NSR or section 112(g) decision,
whichever is later) to object to the change.
The proposed addendum would be incorporated into the permit if
EPA had not objected to it within its 45-day review period. The
addendum would specify that it is effective 45 days from the date EPA
received the request unless EPA objected to it by then. For merged
process changes incorporated as administrative amendments, the permit
shield would be available.
(4) Liability for Making Changes Before the Permit is Renewed.
As already noted, the proposed administrative amendment procedure
would authorize a permitting authority to allow a source to begin
operation of the change prior to its permit being revised. However,
if the source's request for an administrative amendment (e.g., for a
merged program change) were disapproved, the source would be liable
for violating its existing permit from the time it began to operate
the change. Rather than disapprove the request, however, the
permitting authority could in some cases revise a request without
necessarily rendering the source liable for violating its existing
permit. So long as (1) the permitting authority's revisions were not
necessary to make the request eligible for administrative amendment
procedures and did not change the source's proposed determination of
which applicable requirements it must meet as a result of the change,
and (2) the source could demonstrate its compliance with proposed
permit terms using reasonably available means, the permitting
authority would be authorized to determine that its revisions did not
render the source liable for violating its existing permit.
c. Rationale for Proposed Revisions.--(1) Scope. The proposed
revisions generally build upon the current part 70 provisions that
allow NSR permit terms or section 112(g) actions to be incorporated
through the administrative amendment process if the State or local
agency's NSR or section 112(g) program is "enhanced." The theory
behind these provisions is that the public, affected States, and EPA
need only one opportunity to review a change prior to its
incorporation into a part 70 permit. So long as the NSR or
section 112(g) process offers an adequate opportunity for the public,
affected States, and EPA to address part 70 as well as NSR or
section 112(g) issues, title V's procedural safeguards are fulfilled.
Changes that undergo enhanced NSR or section 112(g) review may thus
use the most streamlined (i.e. administrative amendment) procedures
for incorporation into the part 70 permit.
Industry petitioners in the permits case challenged the current
rule's requirement that preconstruction review programs be enhanced
for changes made pursuant to those programs to be incorporated into
part 70 permits as administrative amendments. They argued that the
only issue posed by the incorporation of NSR changes into part 70
permits is whether the change is being accurately recorded in the
permit. The Agency does not agree. Title V independently requires
that all part 70 permit terms be enforceable. Thus, part 70 requires
that permitting authorities include in permits supplemental compliance
monitoring terms where needed. Given the importance of compliance
monitoring terms and the fact that these types of terms often require
the exercise of permitting authority discretion, some public review of
these terms is important. Relatedly, part 70 imposes application and
other permit content requirements that other preconstruction review
programs do not necessarily meet. Assurance that these requirements
are met at least during the part 70 permitting process also warrants
public review.
Enhancement under the current rule offers permitting authorities
the opportunity to combine the operating permit and NSR or
section 112(g) programs and thereby avoid sequential permitting. The
current rule, though, requires that an enhanced program subject
proposed NSR or section 112(g) actions to a 45-day opportunity for EPA
objection prior to the final NSR or section 112(g) determination being
made. While this requirement avoids the possibility of a source
constructing a change pursuant to a preconstruction determination only
to have EPA object to its operation, it does so at the cost of
potentially lengthening the preconstruction review process by 45
days.
The Agency is proposing to allow EPA's objection opportunity to
follow the final NSR or section 112(g) action to give permitting
authorities greater flexibility in merging their NSR and operating
permit programs. A permitting authority could still provide for an
EPA objection opportunity prior to a final NSR and section 112(g)
determination. It would have the option, however, of allowing a
source to act on a NSR determination and become subject to a potential
EPA objection only at the time it files an application for an
administrative amendment to its part 70 permit. The source could
thereby avoid the possibility of being unnecessarily delayed by an EPA
review period, although at the risk of an EPA objection after
construction. Like the current rule, however, the proposal would
require that EPA receive prior notification of, and an opportunity to
comment on, every NSR or section 112(g) action. As a result of EPA
involvement in the earlier preconstruction action, the source would
likely learn of any EPA objection to its requested change prior to
construction.
The Agency expects that, given this additional flexibility, every
State and local permitting agency would at least merge its major NSR
program with its part 70 program. As required by current EPA
regulations, virtually every State provides public and EPA notice, a
30-day comment period, and an opportunity for a public hearing prior
to making final major NSR determinations. To merge its existing major
NSR program with its part 70 program, a permitting authority need only
assure that affected States receive notice at the same time as the
public and EPA, that part 70 permit application and content
requirements are met, and that EPA is provided with an objection
opportunity when a source applies for an administrative amendment.
The EPA thus expects that under the revised rule, all major NSR
actions would be incorporated into part 70 permits through
administrative amendments.
Permitting authorities may also find it advantageous to merge
their minor NSR programs with their part 70 programs. At least some
State and local agency minor NSR programs already provide public
review opportunities equivalent to those that would be required under
today's proposal (i.e., prior notice and at least 15 days of public
comment). For those agencies, merging minor NSR as well as major NSR
with part 70 would be relatively straightforward. Most State or local
minor NSR programs, however, do not provide the requisite public
process. These agencies would have the option of upgrading their
current programs to part 70 standards so minor NSR changes would be
treated as administrative amendments to part 70 permits. To the
extent a permitting authority did not want to merge its programs for
all permitting actions, the proposal would allow it to follow merged
procedures on an ad hoc basis when the source requests such
processing. Those changes that did not undergo a merged process would
be incorporated into part 70 permits through the other permit revision
processes (i.e. de minimis, minor, and significant permit revision
procedures). These procedures would provide for public process, the
timing and amount depending on the size and nature of the change.
Today's proposal would have the effect of requiring that all
minor NSR changes receive some level of public notice before their
final incorporation into a part 70 permit. As discussed, if the State
or local minor NSR program includes public participation requirements
meeting the "merged" program criteria set out above, the change could
be incorporated into the part 70 permit through the administrative
amendment track. On the other hand, if the minor NSR change did not
receive sufficient public process during the permitting authority's
processing of the action to meet the requirements for a merged
program, it would face a public participation requirement as part of
the part 70 process. In requiring public process for all minor NSR
permitting actions by permitting authorities, this proposal is adding
process steps that in some cases may not be required by the underlying
minor NSR program.
The EPA's regulations governing these State or local programs
require that permitting authorities establish "legally enforceable
procedures" that "enable the State or local agency to determine
whether the construction or modification" of a source violates the
State or local agency's "control strategy" or interferes "with
attainment or maintenance of a national standard" in the State or
local agency area of jurisdiction or in a neighboring State (see 40
CFR 51.160(a)). These procedures "must also require that the State or
local agency provide opportunity for public comment," which is
specified to include notice to the public, EPA, and to surrounding
States, of the source's project and the permitting authority's
analysis and proposed decision, as well as a 30-day comment period (or
a shorter time where approved by EPA) (see 40 CFR 51.161).
However, EPA's regulations also contemplate that this review
program will not extend to every source if the permitting authority
provides a reasoned explanation for any exclusions. Specifically, the
permitting authority must "identify types and sizes of facilities,
buildings, structures, or installations which will be subject to
review" and directs that the plan discuss "the basis for determining
which facilities will be subject to review" (see 40 CFR 51.160(e)).
This last provision is intended to allow permitting authorities to
exclude from State or local NSR sources that have negligible impacts
on air quality. Any such exclusion must be justified on de minimis or
administrative necessity grounds in accordance with the doctrine of
Alabama Power Co. v. Costle, 636 F.2d 323,355-61 (D.C. Cir. 1979).
Consistent with this result, authorities may also determine that
sources or source activities that could otherwise be totally exempted
pursuant to this provision may be subject to a partial exemption, for
instance from all or part of the public notice requirements, upon the
same showing that the excluded category is not environmentally
significant, or a similar but more limited showing that the value of
public participation regarding that category would provide negligible
benefits or would be administratively impractical.
In fact, many State and local agencies have adopted minor NSR
programs that either exclude certain types of source changes
completely, or excludes them from some or all of the public
participation requirements. These exclusions have been approved by
EPA and are included in the agencies' current SIP's. Arguably, valid
exceptions in a State or local agency minor NSR program should carry
over to part 70 since, as described above, the public participation
requirement of title V also does not extend to environmentally
insignificant actions. Thus, under this theory, part 70 could allow
the incorporation through the administrative amendment track of minor
NSR changes that have not been subject to public notice and comment in
accordance with a valid exemption in the State or local minor NSR
program.
Adoption of existing State or local exclusions from public
process raises several issues, however. First, existing exemptions
may not all be appropriate given that many State or local programs
were adopted and approved into SIPs by EPA in the early 1970's prior
to the adoption of the public participation requirements of 40 CFR
51.161, and that the environmental significance of these exclusions
has since changed. For instance, the use of minor NSR to provide
federally-enforceable limits on a source's potential to emit in order
to avoid the major NSR programs in parts C and D of title I was not a
consideration at that time, since these programs were not added until
the Act was amended in 1977. Also, this approach would require State
and local agencies to review and possibly revise their minor NSR
permitting programs at the same time that they are faced with adopting
and implementing a part 70 program. For these and other reasons,
today's proposal establishes minimum public process requirements for
all minor NSR changes without regard to the validity of existing State
or local exclusions.
The EPA, however, solicits comment on the question of whether
State or local minor NSR process exclusions can and should carry over
into the part 70 permit revision process. For instance, EPA could
allow permitting authorities to demonstrate, as part of their program
revisions in response to the revised part 70 permit revision
procedures, that their existing minor NSR exclusions cover only
environmentally insignificant actions. To the extent a permitting
authority made the required demonstration, minor NSR actions eligible
for an exclusion could be incorporated into part 70 permits as
administrative amendments, without having undergone a merged
part 70/minor NSR process. Alternatively, a permitting authority
might seek to demonstrate that a portion of the minor NSR exclusions
should pass through to its part 70 program. The EPA is especially
interested in receiving comments on this issue from permitting
authorities with inclusive minor NSR programs that rely on exclusions
to limit the delays and costs associated with their programs.
With regard to today's proposal for merged programs, since there
would be affirmative NSR approval and public review of merged actions,
EPA does not see a clear need for any (and has not proposed any)
limitations on the use of administrative amendment procedures for
merged part 70/NSR and part 70/section 112(g) actions. However, the
Agency solicits comment on whether sources should be allowed to use
the merged process to change a requirement uniquely established in the
part 70 permit, such as an early reduction limit under section 112(i)
of the Act or an emissions cap to avoid an otherwise applicable
requirement. Without a limitation on this use of merged procedures, a
source could seek a change to part 70 permit-unique emissions limits
in the context of a merged State or local NSR or 112(g) action and
have the change incorporated into the part 70 permit as an
administrative amendment. The EPA notes that such a limitation is
proposed for both the de minimis and the minor permit revision
processes.
(2) Process for All Administrative Amendments. The Agency's
proposed minor changes to the current rule's administrative amendment
process should provide additional safeguards and streamlining.
Specifically, the proposed requirement that the source demonstrate and
certify that the change is eligible for the administrative amendment
process should increase the likelihood that the source is properly
invoking this most streamlined process. The proposal to require the
source to submit a proposed permit addendum and to no longer require
the permitting authority to affirmatively act to revise the permit
should help streamline the process. The current rule was challenged
by States as unnecessarily forcing permitting authorities to act
affirmatively on changes of extremely low environmental significance
and diverting limited resources away from higher priorities. The
Agency is therefore proposing to allow the requested change to be
deemed granted 60 days after the permitting authority's receipt of an
administrative amendment request (45 days from EPA's receipt, in cases
of merged program changes), unless the permitting authority (or EPA)
disapproves the change by then. The permit would be amended by simply
attaching to the permit the addendum previously submitted as part of
the application for the administrative amendment and as potentially
revised by the permitting authority.
The proposal, like the current rule, provides no public process,
opportunity for affected State review, or opportunity for EPA
objection for the first four types of administrative amendments listed
in the regulations. The EPA believes, and there has been no dispute,
that exempting these types of clerical changes from the statute's
requirements for public process, affected State review, and EPA
objection opportunity is well within the Agency's power to grant de
minimis exemptions under Alabama Power.
For merged program changes, EPA believes that the proposal, again
like the current rule, legitimately relies on the public process
afforded by merged NSR/operating permit programs to discharge
title V's notice and comment requirements. The Agency acknowledges
that its proposed requirements for merged programs do not include an
opportunity for a public hearing except where otherwise required by
the NSR program. The Agency sees little point in requiring a hearing
for part 70-only purposes for a change that has already undergone
public notice and comment procedures that meet part 70 requirements.
Given the potential number of merged program changes, EPA is also
concerned that providing a hearing for them would be infeasible for
permitting authorities. In light of the small incremental benefit
that public hearings would afford and the likely administrative
impracticality of providing them for merged program changes, the
Agency believes it may exempt merged program changes from the
statute's public hearing requirement.
(3) Additional Process for Merged Program Changes. For merged
program changes, a few additional procedural requirements are proposed
to account for the potential change in timing of EPA's objection
opportunity. For those permitting authorities that opt to begin EPA's
objection opportunity at the time a source submits its administrative
amendment application, instead of during preconstruction review, the
source would be required to submit a copy of its application to EPA.
For those permitting authorities that authorized the source to begin
operation of the change prior to the expiration of EPA's objection
opportunity, the source would also be required to submit with its
application an affidavit acknowledging its potential liability if it
operates the change before its permit is revised. The purpose of the
affidavit would be to ensure that the source and the courts understand
that a source operates a change prior to permit revision at its own
risk. (See explanation of liability provisions of administrative
amendment procedures below.) Further, the Agency is proposing that a
source wait 21 days after submitting its amendment request before
operating a major NSR or section 112(g) change to give EPA the
opportunity to object to these more significant types of changes
before they are operated. It solicits comments, however, on the need
for, and cost of, the proposed 21-day waiting period for operation of
major NSR and section 112(g) changes.
(4) Liability for Making Changes Before Permit is Revised. As
indicated above, EPA is retaining the aspect of the current rule's
administrative procedures that allows a source to operate the change
for which it seeks an administrative amendment before its permit has
been amended. Indeed, EPA is proposing to similarly allow a source to
operate changes qualifying for the de minimis and minor permit
revision procedures before its permit is revised. Assuming, however,
that the source could not operate the change without violating an
existing permit term, its operation of the change would violate the
section 502(a) prohibition against operating in violation of its
permit.
For the reasons set forth in the preamble to the current rule and
briefly restated below, the Agency believes it may exercise its
authority to grant de minimis exemptions from statutory provisions to
allow permitting authorities to temporarily exempt sources from the
section 502(a) prohibition under certain circumstances. For a change
that poses relatively small environmental risk as a result of its
nature, size, or prior review by permitting authorities, the Agency
believes the source may be allowed to operate the change before its
permit is revised, so long as the source undertakes the risk of being
found in violation of the original permit from the time it makes the
change if its request to revise the permit is ultimately denied. (The
source must also comply with the terms of its proposed permit
revision.) Placing a source at risk for operating a change before its
permit is revised gives the source a powerful incentive to correctly
assess and account for the effect of the change on its compliance with
applicable requirements. This incentive in turn lowers the risk of a
source not complying with applicable requirements before its permit is
revised, rendering the incremental effect of the section 502(a)
prohibition on source compliance de minimis.
The litigants in the permits case generally agreed that a source
should be allowed to make certain changes prior to permit revision at
its own risk. Industry representatives were concerned, however, about
the situation where the permitting authority believes that a source's
proposed revision is largely approvable, but nevertheless requires
relatively minor changes to, for instance, the proposed recordkeeping
and reporting provisions. They feared that the need to make even
small changes might mean that the proposed revision was not approvable
and that the source would therefore be liable for having operated the
change in violation of its existing permit.
In response to industry's concern, the litigants agreed that the
permitting authority should have authority to make relatively minor
alterations to a proposed permit revision, approve the revision as
altered, and thereby avoid subjecting the source to liability for any
violations of its existing permit. To maintain a source's incentive
to correctly assess and implement its proposed change, however, the
permitting authority's discretion to correct deficient proposals for
permit revisions must be limited. The Agency is therefore proposing
two criteria for defining the alterations that a permitting authority
may make to a proposed revision without rendering the source liable
for operating the change: (1) the change is unnecessary to make the
revision request eligible for the streamlined process the source has
undertaken to use; and (2) the change is unnecessary to correct the
source's identification of the applicable requirements it must meet.
The first criterion would dissuade a source from attempting to use a
more streamlined procedure than it qualifies for, while the second
would maintain the source's incentive to correctly assess and comply
with the requirements that apply to it as a result of its requested
change.
The enforceability of proposed permit terms must also be
safeguarded. If a permitting authority were allowed to broadly
correct deficient proposals, a source might be tempted to not include
adequate compliance monitoring terms in its proposed revision. The
ability to operate the change before the permit is revised would allow
the source to at least temporarily trade an enforceable requirement
for an unenforceable one. However, industry is concerned that sources
may find it increasingly difficult to confidently predict what
monitoring requirements permitting authorities may impose. The
current rule requires that permitting authorities supplement the
monitoring required by regulations establishing applicable
requirements to the extent necessary to determine a covered source's
compliance with those requirements. The Agency's proposed enhanced
monitoring rule (58 FR 54648 (October 22, 1993)) would also require
permitting authorities to impose supplemental monitoring requirements
where needed. Particularly under the enhanced monitoring rule, if
issued as proposed, industry foresees that many monitoring decisions
will be made on a case-specific basis and thus be very difficult to
predict. Industry is concerned that permitting authorities may often
see fit to make some changes to the monitoring terms that a source has
included in its proposed revision. If a permitting authority is
unable to make those changes without rendering the source liable for
violating its existing permit, industry contends that the utility of
the current and proposed rules' provisions for operation of changes
before permit revision will be largely lost.
The Agency acknowledges that sources may face some short-term
uncertainty regarding what constitutes adequate compliance terms under
the operating permit and enhanced monitoring rules. It is therefore
proposing that a decision by the permitting authority to require
different monitoring not automatically render the source in violation
of its existing permit because it failed to monitor its proposed
change in the manner ultimately specified by the permitting authority.
So long as the source using reasonable available methods demonstrates
compliance with the proposed terms incorporating applicable
requirements, the permitting authority could find the source not in
violation of its existing permit. The Agency is proposing that the
permitting authority be the judge of the adequacy of the source's
compliance monitoring to avoid that becoming an issue in enforcement
actions.
The Agency solicits comment on all aspects of the proposal to
allow the permitting authority to approve proposed permit revisions
with minor supplemental alterations and to limit source liability for
operation of changes prior to permit revision that are subsequently
altered. In particular, EPA solicits comment on the practical extent
and nature of the risk posed by potential source liability for
operating the change, whether relief from liability is necessary and
appropriate in some or all of the revision tracks for which it has
been proposed, and the efficacy of reliance on State, local, and
Federal enforcement discretion to address industry concerns in lieu of
the proposed approach.
4. De Minimis Permit Revisions
As noted above, the current rule does not include a permit
revision track analogous to the de minimis permit revision track
proposed today. The Agency is proposing the addition of this track
for changes that did not undergo merged program review but have only a
small emissions impact. Under this track, a source would be able to
operate the change as early as the day it submits its permit revision
application. Public review of the change would follow and EPA review
and objection opportunity would not occur except in response to a
public petition. The Agency believes that many, typically minor NSR,
changes involve small changes in emissions. Requiring these changes
to undergo the more extensive public procedures required for minor
permit revisions would almost certainly overwhelm State permitting
authorities and is not justified given their small environmental
impact.
a. Overview of Proposal. Under the proposed rule, a source
could operate a de minimis change 7 days after submitting its
application for a permit revision to the permitting authority or as
early as the day it submits its application if the permitting
authority so allows. Similar to the requirements for merged program
changes, the source's application would be required to include a
proposed addendum for revising the permit to reflect the change, a
demonstration and certification that the change is eligible for the de
minimis change track, and an affidavit accepting the risk of operating
the change before its permit is revised.
Public notice of de minimis changes would occur on a monthly,
batched basis after the changes could have been made. In other words,
all of the de minimis changes for which the permitting authority had
received applications in a given month would be listed together in a
public notice issued the following month. For a specified period of
time after public notice is given, citizens would have the opportunity
to petition the permitting authority to disapprove the change.
Grounds for objection would include a change's ineligibility for the
de minimis permit revision process or its inconsistency with
applicable requirements. If the permitting authority failed to
respond to any objections by the end of that period and did not
otherwise disapprove the permit revision request, the proposed permit
addendum would take effect. A person who was unsuccessful in
persuading the permitting authority to disapprove the change could
petition EPA to do so.
Unlike the other revision tracks proposed today, the permitting
authority would have discretion regarding whether and to what extent
to allow any particular source to make changes via this process. The
permitting authority would include in the source's draft permit a term
describing the extent to which it could use the de minimis permit
revision process, and the public would have the opportunity to comment
on that permit term. The proposed rule, however, would not establish
criteria for final permitting authority decisions regarding whether to
include such a permit term in a source's permit and the scope of that
term (within the limits specified below).
The scope of de minimis changes would be defined in two ways.
Any change at a small unit (unit-based de minimis) would qualify, as
would a small change at a big unit (increment-based de minimis)
provided certain conditions designed to ensure the enforceability of
the resulting permit limit were met. The Agency is soliciting comment
on a range of values for defining "small" for the purpose of these
procedures.
b. Scope of Unit-Based De Minimis Revisions. Unit-based de
minimis changes would include the addition of any new unit, and the
modification of any existing unit, whose permit allowable emissions
(after the change in the case of modifications) did not exceed the
unit-based de minimis thresholds. In other words, the new unit or the
existing unit after the de minimis change could not have a potential
to emit greater than the unit-based threshold. Inter-unit netting
could not be used to avoid exceeding the de minimis threshold.
(1) Proposed Thresholds. For criteria pollutants, EPA proposes
a range of four possible threshold levels, as well as a provision
that would allow a permitting authority to develop alternative
threshold levels for its own jurisdiction. For the final rule, EPA
would select a level from the range or include the provision for a
permitting authority-determined level, or both. The four proposed
criteria pollutant threshold levels are as follows:
(i) 4 tons per permit term (tppt) carbon monoxide (CO), 1 tppt
NOX, 1.6 tppt sulfur dioxide (SO2), 0.6 tppt PM-10, and 1 tppt VOC;
(ii) 5 tpy (for any criteria pollutant);
(iii) 20 percent of the applicable major source threshold or 5
tpy VOC or NOX (whichever is greater) or 15 tpy PM-10 or 0.6 tpy
lead (whichever is less);
(iv) 30 percent of the applicable major source threshold or 5
tpy, whichever is greater.
Some have suggested that thresholds higher than the ones proposed
would be appropriate, including major title I modification levels for
criteria pollutants. The EPA solicits comment as to the
appropriateness of higher levels, as well as submission of data that
would support higher thresholds in the final rule.
As noted above, EPA also proposes to allow any permitting
authority to establish alternative unit-based threshold levels based
on a demonstration it would be required to make as specified below.
The threshold levels would be pollutant-specific and would be based on
total emissions from units after the changes were made. The
permitting authority would have to submit to EPA for approval the
demonstration, including the calculations upon which the unit- based
threshold levels were based.
To establish a specific threshold, a permitting authority would
have to submit historical data that would (a) document the aggregate
amount of emissions (i.e., total emissions after the change) from all
units subject to the State or local SIP-approved NSR program over a
representative period of time (e.g., previous 2 years) and (b)
demonstrate that all units above the proposed cut-off for unit-based
de minimis changes represent at least 80 percent of emissions subject
to NSR. The EPA would place this data in the rulemaking record when
determining approvability of the part 70 program. (Data of this sort
from New Jersey is in the docket of today's rule.) Potentially, the
levels established by the permitting authority could be larger than
the national levels ultimately promulgated.
As an example of how threshold levels could be established, if a
permitting authority demonstrated that (1) emissions of VOC from all
new or modified units subject to NSR totaled 5,000 tpy and (2) units
comprising 80 percent (i.e., 4,000 tpy) of these emissions were all
above 20 tpy, the permitting authority could adopt 20 tpy as the
threshold level for VOC in lieu of the national threshold level for
VOC adopted in the final rule. (Similar showings would need to be
made for other pollutants.) In the case of a 20 tpy VOC threshold
level, a change would be eligible for the unit-based de minimis
category if the total emissions of a unit after the change did not
exceed 20 tpy. For toxic pollutants, EPA proposes three possible
threshold levels:
(i) 0 tppt;
(ii) 20 percent of section 112 major source thresholds or 50
percent of section 112(g) de minimis levels, whichever is less; or
(iii) 75 percent of section 112(g) de minimis levels.
Again, EPA would select a threshold level from within the
proposed range and solicits comment and data in support of the
proposed options. Moreover, EPA solicits comment on whether higher de
minimis thresholds for toxic pollutants might be appropriate, such as
section 112(g) de minimis levels, and data supporting them. While EPA
does not propose to allow permitting authorities to establish
alternative unit-based threshold levels for toxic pollutants, the
Agency solicits comment on this possibility and the potential criteria
for establishing such program-specific levels.
For section 111 pollutants (i.e. those regulated by EPA under
section 111, including fluorides, sulfuric acid mist, municipal waste
combustor emissions, and hydrogen sulfide), EPA proposes that the
applicable PSD significance levels be used to define the unit-based de
minimis thresholds for those pollutants (40 CFR 52.21).
(2) Proposed Gatekeepers. Even if a change qualifies for de
minimis procedures based on size, EPA is proposing that it not qualify
for the de minimis permit revision process if:
(i) The source is in violation of the part 70 permit terms and
conditions it seeks to change;
(ii) The need for the permit revision does not result from a
physical or operational change; or
(iii) The change does not involve a permit term or condition
established to limit emissions which is federally enforceable only as
a part 70 permit term or condition.
Thus, if a change were disallowed by any of these gatekeepers,
even if it were clearly below the relevant de minimis threshold
levels, it could not be processed as a de minimis permit revision.
(3) Aggregation limitation. The EPA is not proposing an
aggregation or "stacking" limitation on unit-based de minimis permit
revisions. However, EPA recognizes concerns that sources might make
inappropriate use of de minimis procedures by dividing what would
otherwise be a significant emissions increase into several smaller
increases to avoid more extensive public, permitting authority, EPA,
and affected State review. The EPA does not believe stacking
limitations are necessary to guard against inappropriate
disaggregation, because de minimis changes will be publicly noticed,
enabling the public as well as the permitting authority and EPA to
spot questionable consecutive changes. In addition, section 182(c)(6)
of the Act establishes a stacking limitation for VOC emissions in
serious and worse nonattainment areas. Nevertheless, EPA solicits
comment on the need for stacking limitations to prevent multiple
unit-based de minimis permit revisions from increasing the size of any
source by certain amounts or percentages of the source's total
permitted emissions. The Agency also solicits comment on the
administrative difficulty they would represent for permitting
authorities and covered sources. Finally, EPA solicits comment and
suggestions on appropriate stacking limits, and whether such limits
should be based on a specified emissions amount or a percentage of a
source's total permitted emissions.
c. Scope of Increment-Based De Minimis Permit Revisions.--(1)
Proposed Thresholds. For criteria pollutants, EPA proposes a range of
three possible threshold levels for increment-based de minimis
changes. It also proposes that a permitting authority have the option
of developing alternative thresholds for its jurisdiction. For the
final rule, EPA would select increment-based levels from the proposed
range or include the provision for permitting authority-defined
levels, or both. The three proposed increment- based threshold levels
for criteria pollutants are:
(i) 4 tppt CO, 1 tppt NOX, 1.6 tppt SO2, 0.6 tppt PM-10, or 1
tppt VOC;
(ii) 20 percent of the applicable major source threshold, 10
percent of the limit applicable to the unit undergoing the change, or
15 tpy VOC or NOX (whichever is less, but not less than 2-5 tpy), or
15 tpy PM-10 or 0.6 tpy lead (whichever is less); or
(iii) 30 percent of the applicable major source threshold, 15
percent of the limit applicable to the unit undergoing the change,
whichever is less, but not less than 5 tpy VOC or NOX.
Permitting authorities would also be allowed to develop an
alternative threshold level for each pollutant based on the estimated
annual emissions increases of that pollutant from all units subject to
NSR. The permitting authority would have to submit a demonstration
containing the calculations upon which the threshold levels were
based. The demonstration would have to show that the increment-based
de minimis threshold level specified by the permitting authority for a
pollutant would correspond to a level where at least 80 percent of the
emissions increases of that pollutant were above that level. The
Agency solicits comment on whether it should allow permitting
authorities to set their own increment-based de minimis threshold
levels.
For toxic pollutants, EPA proposes a range of three possible
increment- based threshold levels:
(i) O tppt;
(ii) 20 percent of section 112 major source thresholds, 50
percent of section 112(g) de minimis levels, or 10 percent of the
limit applicable to the unit undergoing the change, whichever is less;
or
(iii) 75 percent of section 112(g) de minimis levels.
As with unit-based de minimis threshold levels for toxics, EPA is
not proposing an option for permit program-specific threshold levels,
but again solicits comment on the desirability of such an option and
what would be the grounds for approving State or local agency
demonstrations. Also, EPA solicits comment on whether higher
increment-based threshold levels would be appropriate for toxic
pollutants and data supporting any higher levels.
As proposed for the unit-based de minimis threshold levels, EPA
proposes the PSD significance levels for section 111 pollutants.
(2) Proposed Gatekeepers. In addition to the gatekeepers
applicable to unit-based de minimis permit revisions set forth above,
two other gatekeepers would apply to increment-based de minimis permit
revisions. First, the resulting emission limit would have to be
expressed in the same form and unit of measure as the previous limit.
Second, any associated changes in compliance monitoring terms would
have to be undertaken in a manner established in the permitting
authority's program regulations, in the source's permit, or through
the proposed minor permit revision procedures. Therefore, any change
that was disallowed by any of these additional gatekeepers, even if it
met increment-based emissions threshold levels and complied with the
unit-based de minimis gatekeepers, could not be processed as an
increment-based de minimis permit revision.
The Agency recognizes that the proposed provisions defining the
scope and gatekeepers for the de minimis process are quite complex.
Thus, EPA solicits suggestions on how to make the approach less
complicated while at the same time providing adequate flexibility and
programmatic integrity.
(3) Aggregation limitations. As in the case of unit-based de
minimis permit revisions, EPA is not proposing aggregation or stacking
limitations for increment-based de minimis permit revisions. However,
for the reasons discussed previously, EPA solicits comment on the need
for stacking limitations to prevent increment-based de minimis permit
revisions from increasing the size of any unit or an entire source by
certain amounts or percentages of limits applicable to a unit or
source. The EPA also solicits comment on whether stacking limits
should be based on a specified amount or percentage of a source's
total permitted emissions and what those amounts or percentages should
be.
d. Process for De Minimis Permit Revisions. De minimis permit
revisions would be processed as follows. First, the source would
submit its application to make a de minimis permit revision to the
permitting authority. As for merged program changes, the application
would be required to contain a description of the change and
supporting information, a demonstration, a certification signed by a
responsible official that the change is eligible for the de minimis
permit revision process, an affidavit accepting the risk of making the
change before the permit is revised, and a proposed addendum to the
permit containing the proposed permit terms that would apply as a
result of the change.
The permit program could authorize the source to operate the
requested change 7 days after the permitting authority received the
application or, with the permitting authority's permission, as early
as the day its application is submitted. Public notice of the changes
would be provided on a monthly, batched basis. In other words, one
notice listing all changes for which applications for de minimis
permit revisions had been received in the preceding month would be
provided each month. The proposal does not specify the manner in
which such public notice should be given, and on whom the
responsibility should fall to provide it. The final rule would at
least provide that State or local permit programs establish a
mechanism sufficient to ensure that public notice reaches all
interested citizens. In any case, EPA is not proposing that EPA and
affected States receive separate notification of de minimis permit
revisions, but that they have access to the monthly reports. The
permitting authority would also be required to establish a public
docket into which it places de minimis permit revision requests on the
date it receives them, or otherwise provide substantially equivalent
public access to the requests as they are received.
The extent to which the permitting authority would be required to
retain authority to disapprove the de minimis permit revision request
would depend on the nature of any preconstruction review the change
may have undergone. State and local agency minor NSR procedures vary
in terms of whether affirmative permitting authority review is
required for all changes and whether and how much public review is
provided. The proposed de minimis revision procedures would take
account of these differences and require that the permitting authority
retain authority to disapprove a de minimis permit revision request
depending on the extent of permitting authority and public review of
the change in the underlying minor NSR process.
For a change that the permitting authority had affirmatively
approved (i.e., had not approved by default) pursuant to a minor NSR
process that included a public comment period of at least 21 days,
the permitting authority would be required to retain authority to
disapprove incorporation of the change into the part 70 permit as a de
minimis permit revision for a period of no more than 7 days after
receipt of the request. For such a change, the proposed permit
addendum containing the revised terms could take effect 7 days after
receipt of the application or as early as the day of receipt where the
permitting authority so allowed in response to a request by the
source. For a change that the permitting authority approved by
default in the preconstruction review process or for which a 21-day
public comment period was not provided, the permitting authority would
have to retain authority to disapprove the change for a specified
period of time following the date public notice was given. Such a
change would be incorporated into the part 70 permit on the day after
this period expired if the permitting authority had not acted by then
to disapprove the change. For all de minimis permit revisions, the
permit would be amended by attaching the proposed addendum to the
permit.
In the case of any change for which the permitting authority
retained authority to disapprove, citizens could request that the
permitting authority disapprove the change. Any such request would
have to be submitted within a specified period of time after the date
public notice was provided for the change. (The Agency solicits
comment on whether the public would need as little as 15 days to as
much as 45 days to submit such requests.) If any requests were
submitted, the permitting authority would have a specified period of
time following the deadline for submission of such requests to
respond. (The Agency solicits comment on how long this period for
permitting authority response should be, from 15 to 45 days.) If the
permitting authority did not heed a request to disapprove the change,
the person requesting disapproval could petition EPA to object to the
change in the manner set forth in section 70.8. Any such petition to
EPA would have to be submitted within 60 days of the end of the period
for permitting authority response to citizen objections.
If the permitting authority disapproved a request for a de
minimis change or EPA objected to a request (in response to a public
petition) after the source had made the change, the source would be
liable for violating the existing permit from the time it made the
change. However, as would be the case for merged program changes made
through administrative amendments, the permitting authority, to a
limited extent, could revise (instead of disapprove) a de minimis
change request without necessarily rendering the source liable for
violating its existing permit from the time it made the proposed
change. So long as (1) the permit authority's revisions were not
necessary to make the request eligible for de minimis procedures and
did not change the source's proposed determination in the request of
which applicable requirements it must meet as a result of the change,
and (2) the source, using reasonably available means, demonstrated its
compliance with the proposed permit terms incorporating applicable
requirements, the permitting authority could find that its revisions
to the de minimis permit revision request did not render the source
liable for violating its existing permit.
Finally, a copy of the final addendum would have to be provided
to EPA. No permit shield would be available for de minimis changes.
e. Rationale.--(1) In General. The Agency believes that the
proposed de minimis revision track is necessary and appropriate to
address the large number of small physical or operational changes that
will occur at part 70 sources each year. Most changes at sources
involve the addition of small new units or small increases in
emissions at existing units, and these changes usually receive prior
review under existing preconstruction review programs. In many
States, thousands of these small changes take place each year. For
example, more than 10,000 changes subject to preconstruction review
occur annually in Texas and over 5,000 in New Jersey. Of those, only
a few hundred are subject to major NSR. Nationwide, most of the tens
of thousands of preconstruction actions that occur each year are
subject to minor NSR for which little or no public review is provided.
Many States provide public process for minor NSR actions that result
in emission increases above certain (generally relatively high)
levels, but few (if any) provide public process for all actions that
undergo minor NSR.
Requiring full part 70 public process for all minor NSR actions
would make extraordinary demands on State and local resources. One
State, in the detailed fee demonstration accompanying its part 70
program submittal, estimated that to comply with the current rule's
requirements for issuing part 70 permits, 150 hours will be required
to hold a public hearing and respond to public comments for each
permit. If this amount of process were required for all part 70
permit revisions (including all minor NSR changes) in that State, it
would need to spend well in excess of 1,000,000 hours per year on
public process. To accommodate this level of process, the State would
need to nearly double its current staffing estimates for part 70
permit review and devote the added staff full time to providing public
process (see analysis in docket number A-93-50). Although these time
and staffing estimates are based on one State's submission, EPA
believes they are representative of what other permitting authorities
would face if required to provide full permit issuance process for
permit revisions. Permitting authorities are already having to
substantially increase staffing to meet title V requirements and are
facing difficult obstacles in finding qualified staff. Moreover, such
unprecedented levels of staff, even if they could be obtained, would
present additional communication and prioritization problems.
Largely as a function of the need for more staff, providing
substantial public process for every permit revision would also be
very costly. While title V requires that permitting authorities
charge fees sufficient to cover the costs of the permit program, this
mandate must be read in light of the other signposts provided by
Congress. For example, title V establishes a presumption that a fee
of $25/ton, adjusted for the Consumer Price Index (CPI), is adequate
to cover the direct and indirect costs of the permitting program.
That figure would be $30.18/ton for 1995. Based on the aforementioned
State's fee demonstration, the cost of providing full public process
for all permit revisions in that State would be over $8,000,000 and
would cause its fee rate to exceed $45.00/ton, more than 50 percent
above the amount Congress presumed would be adequate. While the
foregoing cost projections are based on one State's analysis of its
program, EPA's review of other States' fee demonstrations indicate
that the projections are not unusually high.
Permitting authorities and sources alike are also very concerned
with the potential of extensive public review of permit revisions to
produce permitting gridlock. If every new unit and every physical or
operational change at existing units were required to undergo
substantial review beyond that provided by existing preconstruction
review, substantial delays in revising part 70 permits would result
and sources would likely incur significant opportunity costs.
The sheer volume of small changes make necessary and appropriate
procedures that provide for public review after the source may make
the change at its own risk and that do not require affirmative
permitting authority action except where objections are raised. The
Agency believes more burdensome procedures would probably overwhelm
permitting authorities and impose unreasonable costs on both agencies
and sources. Indeed, the proposed de minimis procedures would subject
most of the minor NSR actions that take place each year to more
process than is typically provided by State and local minor NSR
programs. At the same time, EPA believes that the proposed
requirement for post hoc public notice and an opportunity to object
would help ensure the integrity of part 70 and minor NSR programs
without significantly increasing the permitting burden on agencies and
sources. Post hoc public process would provide sources with a
significant incentive to accurately assess the effect of requested
changes on emissions and compliance with applicable requirements. Put
another way, subjecting even small changes to public scrutiny would
increase the likelihood that sources would limit requests for de
minimis changes to changes that are truly small and that can be made
in compliance with applicable requirements.
As previously pointed out, in requiring public process for all
minor NSR modifications, today's proposal would add public procedures
that in some cases may not be required by the underlying minor NSR
programs. Like the requirements for merged program review, the
proposed de minimis change procedures would have the effect of
requiring at least some public process for minor NSR modifications
that may be eligible for valid exclusions from public process under
State or local minor NSR programs. For the reasons set forth in the
discussion of merged program requirements earlier in this preamble,
EPA is considering whether valid exclusions from minor NSR process
should carry over into the title V context. It thus requests comments
on whether a change that would otherwise be subject to de minimis
change procedures (presumably in part because it did not undergo
merged program review), should be eligible for incorporation into a
part 70 permit as an administrative amendment if it qualifies for a
minor NSR exclusion from public process.
As further explained below, the scope of changes eligible for the
de minimis process would be restricted by several "gatekeepers" to
guard against improper or high risk use of the process. The
procedures for revising the permit would provide added safeguards. In
view of the small size of the eligible changes, the applicable
gatekeepers and the additional procedural safeguards, EPA believes the
proposed process would be sufficient to meet title V's public process
requirements.
From industry's perspective, the proposed procedures would
provide streamlined processing of permit revisions. The small size of
the eligible changes and the checks and balances provided by the
procedures would justify the Agency temporarily exempting sources from
the section 502(a) prohibition against operation in noncompliance with
permit terms. Thus, small changes could be operated as soon as or
shortly after applications are submitted. While sources would remain
at risk for violating their permits until the end of the public review
period for changes that the permitting authority retained authority to
disapprove, they could proceed expeditiously to operate small changes
that they were confident met all applicable requirements. The
proposed procedures would further provide that permits be revised by
default if the permitting authority fails to act affirmatively. The
EPA thus believes that the proposed process would also be sufficient
to meet title V's requirement that permitting procedures be
streamlined and expeditious.
The Agency solicits comment on the effectiveness of a post hoc
public review process in assuring that requests for de minimis changes
are limited to changes that are truly small and consistent with
applicable requirements. The Agency is also interested in comments on
the costs of the post hoc review process and on whether the benefits
justify the costs of such a program. It further solicits comment on
whether the post hoc review process could be eliminated without
violating statutory requirements. Finally, EPA solicits comments on
whether, in the absence of a post hoc process, the Agency would be
authorized to limit its objection opportunity and to allow sources to
operate de minimis changes before their permits are revised, as
proposed.
(2) Scope. A critical question in the evaluation of the
proposed procedures, however, is what constitutes a "small" change.
Before exploring that issue, it should be pointed out that whatever
threshold EPA eventually selects for defining "small" changes, under
the proposal the scope of the changes a particular source could
process using the de minimis track would depend on its permit. As
indicated above, the proposal would require that a source's use of de
minimis procedures be authorized by its part 70 permit. The purpose
of this requirement is to give the permitting authority the option of
allowing only those de minimis changes at specific units that it
considers appropriate, and the public an opportunity to comment on the
extent to which any source could use de minimis revision procedures.
Conceivably, the public could comment and the permitting authority
could decide that certain situations (e.g., a bad compliance record)
warrant limiting or denying altogether a source's use of de minimis
procedures.
The Agency solicits comment, though, on whether the permitting
authority should be authorized to provide in its part 70 program for
certain categories or classes of sources or changes to get the benefit
of de minimis change procedures. For instance, for any change subject
to preconstruction review, there arguably would be little basis for
depriving a source of the availability of the de minimis permit
revision track, given that such a change would have already undergone
permitting authority review by the time the part 70 permit revision
application was received. The Agency solicits comment on whether and
under what circumstances the permitting authority should be allowed to
authorize use of de minimis revision procedures on a generic basis.
It also bears explaining at the outset why EPA is proposing two
types of de minimis changes: unit-based and increment-based. As noted
above, unit-based de minimis changes include any change at a small
unit. Because the unit is itself small in terms of its emissions
potential, the environmental risk of a source inappropriately
processing a change at such unit through de minimis procedures is
relatively small, since the most the unit could emit is the de minimis
threshold itself. Increment-based de minimis changes, however, are
small changes at big units. Because the unit in this case could be
very large (e.g., 400 tpy VOC), a purportedly small change could in
fact have very large emissions consequences. For instance, if a 400
tpy unit is controlled to 200 tpy, the source could potentially make a
change that it represents as small but that increases the unit's
emissions by 200 tpy. Because of this risk, EPA is proposing to
restrict the availability of increment-based de minimis changes in
ways that ensure the continued enforceability of the controls on the
unit undergoing the change. The Agency is concerned, however, that
two types of de minimis changes may be confusing and unnecessarily
complex. It therefore requests comments on whether it should
promulgate one or both types of de minimis revision tracks and what
applicable gatekeepers it should retain or reject. It also refers the
reader to the discussion later in this preamble that suggests a
different approach to changes in compliance monitoring terms that may
provide a basis for collapsing the two types of de minimis permit
revisions into one.
The Agency is proposing a range of possible values of de minimis
changes because it thus far lacks adequate information to choose
between the proposed values. The Agency believes that the proper
approach to choosing de minimis thresholds is to determine what
threshold will likely result in the public having a prior opportunity
to comment on the large majority of regulated pollutants' total
emissions and in the permitting authority's being relieved from
processing a significant percentage of permit revisions through more
burdensome procedures. As suggested by EPA's proposal for permitting
authority-determined de minimis levels, the Agency believes that about
80 per cent of total emissions subject to NSR should not be eligible
for the de minimis process, but it requests comment on the appropriate
percentage and information indicating what emission level(s) would
come close to achieving this result.
The Agency recognizes the inherent difficulty of utilizing a
national emission level to ensure that the public receives prior
notice and an opportunity to comment on a certain percentage of total
emissions, since that level is apt to vary with the nonattainment area
and the types of controls applicable in it. However, EPA is still
interested in promulgating a national emission level for several
reasons. First, a number of States have indicated a desire for a
national de minimis threshold to avoid permitting authorities
"bidding" for sources or source expansions by offering higher
thresholds than their neighboring State or local agencies. Second,
the showing that EPA has proposed that State and local agencies make
to justify a unique de minimis threshold may be very difficult for a
particular agency to make depending on the extent and detail of its
historical records.
The Agency is also interested, however, in providing permitting
authorities with the option of developing their own de minimis
thresholds if they can make the requisite showing. Although EPA
understands the desire on the part of some permitting authorities for
national uniformity, it also appreciates that permitting authorities
are in very different positions with regard to the emission levels
that would achieve the 80 percent mark in a particular agency's
jurisdiction. While in some heavily industrialized areas a 5 ton per
year (tpy) cut-off may result in 80 or 90 percent of the emissions
being subjected to prior NSR, more rural areas may achieve the same
with a much higher cut-off. Indeed, a 5 tpy cut-off for unit-based de
minimis might well be useless in an area where the agency does not
regulate such small emissions units or increases. On the other hand,
the permitting authority for that area might not have so great a need
for de minimis procedures. The EPA today proposes to both promulgate
a national level and to allow a permitting authority to develop
alternative de minimis thresholds that would apply in the area of the
agency's jurisdiction instead of the national threshold. The Agency
requests comment on whether it should promulgate both approaches or
just one or the other.
As for the proposed national thresholds, EPA believes that each
represents a reasonable approach, even though the range of values they
produce is wide. The low end of the range (e.g., 1 tppt NOX, 0 tppt
HAP's) is the same for both unit and increment-based de minimis
purposes and produces the smallest threshold and best protects against
overuse of the de minimis track. However, this proposal may also
result in the de minimis process becoming unavailable over the life of
the permit even for very small changes that would otherwise qualify.
A single 5 tpy cutoff proposed for each criteria pollutant under
the unit- based de minimis approach has the advantage of simplicity
and is in the range that many permitting authorities recognize as
small (judging by the caps on insignificant activities in State and
local permit programs submitted pursuant to the current rule). It
does not, however, recognize differences in pollutants. New Jersey
has submitted a specific demonstration to the record which shows that
approximately 90 percent of the sources subject to preconstruction
review in New Jersey over a recent 20-month period involve emissions
units of 5 tpy or less. These same units account for not more than 10
percent of all the relevant air pollutant emissions subject to New
Jersey's NSR program over the same period. Consequently, under a 5
tpy threshold test, New Jersey would be able to focus more thoroughly
on the 10 percent of the sources responsible for 90 percent of
emissions from preconstruction review actions.
The middle ground approach proposed for criteria pollutants under
both unit and increment-based de minimis processes would allow for
variation among nonattainment areas with differing major source
thresholds, and would protect against de minimis changes larger than
the PSD significance levels. For unit- based de minimis, it would
allow changes in VOC and NOX of up to 20 tpy where major source sizes
are 100 tpy, up to 10 tpy where major source sizes are 50 tpy, and up
to 5 tpy emissions where major source sizes are below 25 tpy. For
PM-10, the unit-based threshold would allow de minimis changes up to
15 tpy where the major source cutoff is 100 tpy, and up to 14 tpy
where the major source cutoff is 70 tpy. For lead, the threshold
value would always be 0.6 tpy. The EPA believes the formula for VOC
and NOX in the unit-based approach (i.e., 20 percent of the major
source cutoff or 5 tpy, whichever is greater) is appropriate since it
allows greater de minimis thresholds in nonattainment areas with less
severe problems, yet provides some relief for permitting authorities
and sources in areas with the most severe problems. The EPA notes
also that the values produced by the formula are well below the PSD
significance levels of 40 tpy for VOC and NOX and 15 tpy for PM-10
that apply in attainment areas (where major or minor source size would
be 100 tpy). The values for lead are equal to the PSD significance
levels, but are themselves low enough to protect against significant
emission increases.
Increment-based de minimis changes would generally be the least
of 20 percent of the applicable major stationary source cutoff, 10
percent of the permitted limit, or 15 tpy (but in no event greater
than a major modification cutoff or less than 2-5 tpy NOX or VOC).
Where major source size is 100 tpy, this formula would yield an upper
bound of 15 tpy for VOC and NOX for unit allowables at or above 150
tpy. As unit allowable falls to between 50 and 150 tpy for the same
major source size, the formula would allow de minimis changes between
5 and 15 tpy. Below unit allowables of 20-50 tpy, the result would be
2-5 tpy de minimis thresholds. Where major source size is 50 tpy, the
upper bound falls to 10 tpy for any unit allowable at or above 100
tpy. For unit allowables between 50 and 100 tpy, the formula yields
de minimis thresholds of 10 percent of unit allowables, or 5-15 tpy.
If unit allowables are between 20 and 50 tpy or below, de minimis
thresholds of 2-5 tpy would result. At 25 tpy major source size, the
formula yields de minimis thresholds of 5 tpy for any unit allowables
at 50 tpy or above, and values of 2-5 tpy for unit allowables of 20-50
tpy or lower. When major source size is 10 tpy, the formula yields
2-5 tpy de minimis thresholds regardless of unit allowable levels.
Although complicated, the formula does allow relatively small
changes to occur at units that could not qualify for unit-based de
minimis permit revision procedures. For example, any unit with an
allowable level over 20 tpy would not qualify for unit-based
procedures, but would be allowed under the increment-based approach to
make de minimis changes of as low as 2-5 tpy if their allowables were
in the range of 20-50 tpy (for any major source size) or as high as 15
tpy if their allowables were at or above 150 tpy and the major source
size were 100 tpy. Yet these values are well below the major source
thresholds, are protective of PSD significance levels, and allow
proportionately higher de minimis changes at units with higher
allowable emissions.
Certain aspects of this formula (i.e., 20 percent of the relevant
major source definition) are consistent with previous comments of
State and local air pollution control officials with permitting
experience. Other aspects (i.e., 10 percent of the unit's allowable
level) are contained in the current part 70 as cutoffs for when group
processing may be allowed for minor permit modifications. Even at the
15 tpy upper bound under this formula, many State or local agencies do
not require any type of a permit for sources at or below these levels.
Moreover, individual changes at or below these levels are unlikely to
trigger new federally-promulgated applicable requirements and to
affect significantly the attainment of PSD increments and national
ambient air quality standards. Accordingly, EPA believes that they
serve as one appropriate starting point for de minimis change
thresholds. The EPA believes a higher threshold (i.e., 15 tpy rather
than 5 tpy) may be appropriate for reasons previously stated. To
safeguard the usefulness of de minimis revision procedures in areas
with low major source thresholds, EPA also believes that the
definition of unit-based de minimis should include a lower bound or
"floor" and that a floor of 2-5 tpy is appropriate.
There are some significant differences between the two de minimis
approaches. For example, the "10 percent of permitted allowable
emissions" criterion is appropriate for only an increment-based
approach. It is not necessary for a unit-based system, since the
entirety of the unit (not just some change to it) is the basis for
judging eligibility for de minimis procedures. In addition, the
proposed unit-based de minimis approach could be used at a source as
large as 20 tpy in attainment or moderate nonattainment areas, while
an increment-based de minimis change could not be larger than 15 tpy
even in attainment areas. The proposed increment-based number is
smaller because, even with the additional gatekeepers safeguarding
compliance, any change at a large unit carries the inherent risk of
resulting in a large emissions increase. The larger number would also
apply only for the larger units (150 tpy allowable or higher) and
where major source size is 100 tpy.
The high end of the proposed range would allow unit-based de
minimis changes up to 30 tpy where major source sizes are 100 tpy, up
to 15 tpy where major source sizes are 50 tpy, up to 7.5 tpy where
major source size is 25 tpy, and up to 5 tpy where major source sizes
are below 16 tpy. Even these higher values could be viewed as
reasonable considering that these changes have already been subject to
State or local NSR (or are categorically exempt from it) and
authorization to make a change up to those bounds was provided during
issuance of the source's part 70 permit.
For toxic pollutants (i.e., HAP's), a range from zero to 75
percent of section 112(g) de minimis levels is proposed. The lower
end of the range represents a position that any increase in the
permitted limit of a HAP would be significant enough to warrant at
least the minor permit revision process. The upper end of the range
is defined relative to a percentage of the de minimis levels proposed
for section 112(g) (59 FR 15504 (April 1, 1994)). This approach
reasonably links the trigger for more part 70 permit revision process
to a change with an increase still comfortably below the level
proposed to require regulatory control under section 112(g). The
Agency foresees the likelihood of sources taking controls to keep
themselves below section 112(g) de minimis levels in a manner
analogous to what occurs in the NSR context. A change below
section 112(g) de minimis levels that requires a permit revision at
all might thus be to a limit establishing a "synthetic minor" source
for HAP's. This approach in establishing a de minimis level for HAP's
is also consistent with the proposed treatment of insignificant
activities (57 FR 32273) which is linked to the proposed
section 112(g) de minimis levels.
Cutoffs are proposed for another set of pollutants, those that
are regulated under section 111 of the Act. These pollutants are
those covered under NSPS but are not criteria pollutants or pollutants
regulated under section 112 of the Act (e.g., fluorides, hydrogen
sulfide, sulfuric acid mist). The proposed de minimis cutoffs for
both unit and increment-based changes are the PSD significance levels
for these pollutants. Any change at these levels or higher would be a
modification under section 111 and not eligible for de minimis permit
revision procedures. Lower cut-offs would not be justified because
increases and decreases of these pollutants are not tracked on an
area-wide basis (unlike criteria pollutants) and no additional
standards covering these pollutants will be forthcoming. An
applicable NSPS or a section 111(d) provision applicable to a source
(i.e., a source that was in existence when the NSPS was promulgated)
will constitute an applicable requirement that cannot be violated.
The only part 70 concern with respect to these pollutants is
triggering PSD review as a major modification.
Further, EPA is proposing several restrictions on the use of de
minimis procedures for changes that meet the applicable cut-offs. The
general purpose of these "gatekeepers" is to guard against improper or
inappropriate use of the de minimis process. The first three
gatekeepers apply to both unit-based and increment-based changes,
while the last two apply only to increment-based changes to address
the greater potential environmental risk they pose.
The first gatekeeper would prohibit a source from using the de
minimis process for a change to a permit term that the source was
violating. The Agency is proposing this gatekeeper because sources
might otherwise be tempted to use the streamlining features of the de
minimis process, i.e., limited public review and permit revision by
default, to avoid or moot enforcement actions.
The second gatekeeper would require that the requested change be
associated with a physical or operational change at the plant. This
gatekeeper would ensure that a source uses the de minimis process only
for permit revisions necessitated by a change at its facility and not
as a means of appealing a permit term it finds objectionable. If a
source takes issue with a permit term issued after full public
process, its proper recourse is to the permitting authority to reopen
its permit or to the courts for review of that term. Part of the
justification for post hoc process is to allow a source to
expeditiously make changes as needed to respond to the market. A
source's preference for a less stringent permit term apart from the
need to make physical or operational changes does not justify
expedited procedures.
A further gatekeeper that would apply to both unit- and
increment-based changes would prohibit the use of de minimis
procedures for changes to permit terms establishing emission limits or
caps developed only through part 70- only process. Development of
such limits is generally very time-consuming and case-specific, and
changes to them would warrant full public process in the part 70
context since presumably there would be no prior permitting authority
review.
The two additional gatekeepers are proposed for increment-based
de minimis changes. The resulting permit limits would have to be
expressed in the same form and unit of measure as the previous limit,
and any associated changes in compliance monitoring terms would have
to be undertaken in a manner established in the State or local permit
program, the source's permit, or through the proposed minor permit
revision procedures. The purpose of these gatekeepers is to assure
that permit limits whose enforceability has been insured through
compliance requirements established during permit issuance are not
replaced by apparently more stringent limits that are not practicably
enforceable. Many compliance monitoring requirements need to be
tailored to the affected unit and the applicable controls. For
example, monitoring of operating parameters such temperature or
pressure is often substituted for direct emissions measurements.
These parameters must be calibrated to emissions results and changes
in them do not necessarily result in proportionate emissions changes.
Establishing the proper calibrations often requires testing and
interpretation of test results and so is not appropriately subject to
an abbreviated process providing little or no prior permitting
authority or public review.
(3) Process. The proposed rule would impose on de minimis
changes the same application requirements imposed on merged program
changes processed as administrative amendments. The basis for these
requirements would also be the same as that for their administrative
amendment counterparts. That is, besides a description of the change,
the source would be required to demonstrate and certify that the
change is eligible for the de minimis process to help ensure that the
source has properly evaluated the eligibility of the change for the
streamlined process. The source would also be required to submit an
affidavit accepting the risk of making the change before the permit is
revised. Finally, the source would have to submit a proposed permit
addendum to simplify the process of revising the permit.
The proposal would provide that a source could operate the change
seven days after submitting its application to the permitting
authority, but it would also allow the permitting authority to waive
all or part of this waiting period at the source's request. The 7-day
notice requirement is intended to provide the permitting authority
with prior notice of a change so that it would have an opportunity to
stop inappropriate changes. However, in many cases the permitting
authority would already be familiar with the change as a result of
preconstruction review. It thus makes sense to allow the permitting
authority for whose benefit the prior notice is provided to waive it
in those circumstances the permitting authority considers it
unnecessary. The Agency is interested in comment on whether a
permitting authority could waive the waiting period for classes of
sources or changes (e.g., all changes subject to permitting authority
review prior to construction), instead of through case-by-case
waivers.
The proposal specifies the minimum content of public notice to
make sure it is adequate to alert interested citizens to the
opportunity to review the change. The public docket requirement would
ensure that an interested citizen could obtain the information needed
to evaluate the change. The Agency is proposing, however, to give
permitting authorities some latitude in providing citizens with this
information. Permitting authorities would be able to propose for EPA
approval other means that reasonably afford citizens the information
they need.
The proposal does not specify the manner in which public notice
is to be given. The Agency requests comments on means of giving
notice that would be both effective and low cost, and on whether EPA
should specify or leave to permitting authority discretion the manner
for giving notice. Alternative methods EPA has considered include
monthly lists published in a State or local government register or
sent to interested citizens by the source making the request.
Interested citizens would include those who commented on the source's
initial permit or any revision thereto, or requested to be notified of
permit revisions requested by the source. Another possibility is the
posting of the monthly lists in local government buildings accessible
to area residents.
The proposal also lays out a range of potential time periods for
the public to object and for the permitting authority to respond to
any objections. The Agency solicits comments on what time periods
would be adequate for the public to make objections and for the
permitting authority to respond. It should be pointed out that the
time period for the public to object may well depend on the manner of
giving notice. For instance, notice by means of listings posted in
public buildings may warrant a longer public objection period to take
into account the additional time required to access the notice.
Where a requested change underwent preconstruction review and
received affirmative permitting authority approval following a 21-day
public comment period, EPA is proposing that there be no further
opportunity for the public to request that the change be disapproved.
Of course, a change that underwent a 15 to 30-day public comment
period (depending on the permitting authority's existing minor NSR
regulations) during a process that also met part 70 permit content
requirements would be the product of a merged program change that
could be processed as an administrative amendment. This provision of
the de minimis change procedures is intended to take account of
circumstances falling somewhat short of merged program requirements
for small changes. So long as preconstruction review afforded the
public notice and a 21-day comment period and required a final
determination by the permitting authority in light of any public
comments, the change need only be publicly noticed. An interested
member of the public, if dissatisfied with the part 70 permit
revision, may petition the permitting authority to revoke and reissue
it. (Presumably, a citizen would also be able to challenge the
underlying preconstruction review action in State court.) There would
be no deadline, however, on the permitting authority's response to
that petition, except as provided under State administrative law. The
Agency believes that small changes that receive the requisite amount
of public process during preconstruction review do not warrant further
public review in part 70 permitting.
Like the proposed procedures for administrative amendments, the
de minimis procedures would provide that permits be revised by default
if the permitting authority fails to act affirmatively by the relevant
deadline. In the case of changes for which the permitting authority
did not retain authority to disapprove, the permit could be deemed
revised at the end of the 7-day notice period if the permitting
authority failed to act. For changes the permitting authority could
disapprove, the permit could take effect at the end of the period for
consideration of any public objections in the absence of a permitting
authority objection. The permit would be revised by attaching the
addendum proposed by the source. This is an advantage over all the
processes established by the current rule, which require permitting
authority action to complete the permit revision process. Of course,
a permitting authority could choose to provide that the permit is not
revised until it takes action to revise it.
While a citizen who unsuccessfully requested disapproval of a
change could petition EPA to object to it, the Agency would not
otherwise be involved in the processing of de minimis change requests.
Just as the small emissions impact and the procedural safeguards
associated with de minimis changes make post hoc public review
adequate, these same considerations make routine EPA review
unnecessary. Recourse to EPA to object to a change is sufficient to
provide the statutorily required Agency check on State or local agency
processing for these small changes. Beyond that, further EPA
involvement in processing de minimis changes would simply be
infeasible. The Agency is proposing a de minimis change procedure
that allows a permit to be revised by default in recognition of the
fact that State and local permitting authorities are unlikely to be
able to affirmatively act on every small change. Prospects for EPA's
ability to attend to all such changes occurring nationwide are that
much dimmer.
Finally, as for merged program changes processed as
administrative amendments, the source would be liable for violating
its existing permit if it operated the change before its permit was
revised and the permitting authority ultimately disapproved the
change, potentially in response to a public objection. This provision
should ensure that sources take the potential for public objection to
heart. Like for merged program changes, however, to the extent that a
source's request required only minor alterations to be approvable, the
permitting authority could spare the source from liability under the
circumstances specified earlier in this preamble.
In view of the limited public, affected State, and EPA review
afforded for de minimis changes, the Agency is also proposing that the
permit shield not be available for such changes. The lack of a shield
would provide a further check on the potential consequences of a
change processed through de minimis procedures. Even if a source were
successful in having its permit revised to reflect a change that
failed to comply with applicable requirements, enforcement action
could still be taken against that source for its noncompliance.
5. Minor Permit Revisions
a. Overview. Under today's proposal, most changes ineligible
for administrative amendment or de minimis permit revision procedures
would be eligible for the minor permit revision process. Taking the
current rule's minor permit modification process as a starting point,
the proposal would add expedited procedures for providing public
notice and a 21-day comment period, allow the source to operate the
requested change at the end of the comment period when no objections
were received, and provide for permitting authority action on the
request within 60 days of its submission.
In return for the addition of public review, the proposal would
remove several of the current rule's gatekeepers, substantially
expanding the scope of the changes that qualify. For example, major
and minor NSR changes and section 112(g) actions that did not undergo
merged program process would qualify as minor permit revisions with
few exceptions. In addition, most changes triggering other Federal
requirements (e.g., RACT or MACT) would also qualify for minor permit
revision treatment.
b. Description of Current Minor Permit Modification Procedures.
The minor permit modification procedures as currently promulgated in
Secs. 70.7(e)(2) and (3) allow sources to make certain types of
changes immediately upon filing a permit revision application with the
permitting authority, and do not require that the permitting authority
provide an opportunity for public participation before revising the
source's permit. To insure that inappropriately significant changes
are not processed through this very streamlined revision track,
part 70 strictly limits the universe of eligible changes.
For example, no change could be processed as a minor permit
modification that involves significant changes to existing monitoring,
reporting, or recordkeeping requirements in the permit. Nor would a
modification that requires or changes a case-by-case determination of
an emission limitation or other standard, or that is a modification
under any provision of title I of the Act, be eligible. Changes that
are eligible could be implemented by the source immediately upon
filing a minor permit modification application with the permitting
authority. Thus, sources could operate changes even before the
permitting authority has any opportunity to review the requested
change. Moreover, EPA's review period and opportunity to object to
the modification do not begin until after the source has began to
operate the change. Finally, the permitting authority is not required
to provide public notice or an opportunity for the public to comment
on the requested modification before revising the permit.
Consequently, part 70 does not allow the permit shield to apply
to any change processed as a minor permit modification. Any change
for which a modifying source wishes to have the protection of the
permit shield can only be processed through the more rigorous track
unless it were processed under an enhanced NSR procedure (see
discussion of administrative amendments).
c. Description of Proposed Minor Permit Revision
Procedures.--(1) Scope. Due to the significant improvements being
proposed to the current minor permit modification process
(subsequently discussed), the proposed scope of changes eligible for
the new minor permit revision process would be increased. However,
eligibility for the proposed minor permit revision procedures would be
subject to several of the same gatekeepers that limit the eligibility
of changes that may be processed through the de minimis permit
revision track. These include the requirement that a source be in
compliance with the permit terms it seeks to modify and a prohibition
on changes to permit terms or conditions established to limit
emissions which is federally enforceable only as a part 70 permit term
or condition. In addition, the change could not be a significant
revision to compliance monitoring requirements in the permit unless
any such revision was associated with a change that otherwise would
qualify for minor permit revision procedures.
Changes eligible for minor permit revision procedures would
include major or minor NSR or 112(g) changes that presumably did not
undergo merged program review, with one exception. Those minor NSR
actions that involved netting transactions would not be eligible
unless the netting transaction at issue either provided a 30-day
public comment period at the minor NSR stage or did not involve a
single emissions increase greater than the area's applicable title I
significance levels or a sum of emissions increases that is greater
than the area's applicable major source threshold. Also eligible
would be changes to compliance terms, even if such changes are
significant, that are necessary to implement other changes that are
eligible to be processed as minor permit revisions. Finally, changes
that are not subject to NSR or section 112(g) but that trigger the
applicability of a Federal requirement, such as a SIP requirement,
would be eligible for minor permit revision procedures.
(2) Process. To make use of the proposed minor permit revision
procedures, the source would first submit its minor permit revision
application to the permitting authority. The application requirements
would include those applicable to the de minimis process and merged
program changes: a description of the requested change; a draft permit
and supporting information; a demonstration and certification that the
proposed change is eligible for the minor permit revision process; and
an affidavit accepting the risk of operating the change prior to
permit revision. In addition, the source would have to certify that
it had provided notice to the public, affected States, and EPA as
required by the minor permit revision procedures.
As for de minimis permit revision requests, when the permitting
authority received a minor permit revision application, it would have
to enter it into a public docket or provide substantially equivalent
public access to it.
At the same time it submits its application to the permitting
authority, the source would be required to provide notice to the
public, affected States, and EPA of its request. The source could
satisfy its notification requirement by publishing a public notice in
a newspaper of general circulation in the area where the source is
located or in a State or local authority publication or register
designed to give general public notice, and by sending by first-class
mail a letter to affected States, EPA, and interested persons.
Interested persons would include any person who commented on a
source's original permit or any subsequent revision, reopening, or
renewal and all persons who ask the permitting authority to place them
on a list of interested persons. The list would be maintained by the
permitting authority and kept up-to-date on-site by the source.
The notice itself would have to describe the change, specify that
a copy of the revised application is available from the permitting
authority, and briefly describe the public comment procedures
required. It would also have to indicate that the source may
implement the requested change after 21 days from the date of the
notice if by that date (1) no germane and non-frivolous objection has
been received from the public or affected States, (2) the permitting
authority has not denied the change or transferred it for processing
under significant permit revision procedures, and (3) EPA has not
objected to the requested change.
Following publication of the required notice, citizens and
affected States would have 21 days to submit written comments or
objections to the permitting authority. The permitting authority
would be required to keep a publicly- available record of the comments
so that EPA would be able to fulfill its permit review obligations and
determine whether any subsequent citizen petition for an EPA objection
should be granted. Permitting authorities would not be required,
however, to provide any opportunity for a public hearing on changes
processed as minor permit revisions.
If the permitting authority did not receive from the public or
affected States any written comment or objection within 21 days after
publication of the notice, the source could implement the requested
change on the 22nd day provided that the permitting authority had
neither denied the request nor transferred it for processing under
significant permit revision procedures and EPA had not objected to the
request by then.
On the other hand, if the permitting authority did receive a
public or affected State comment or objection within the 21-day
period, the source would not be able to implement the requested change
on the 22nd day as discussed above. Instead, the permitting authority
would be required to determine within 7 days after the close of the
21-day public comment period (i.e., within 28 days of the date of the
public notice) whether the comment or objection is germane and
non-frivolous and thus warrants denying the minor permit revision
request or transferring it for processing under significant permit
revision procedures.
To be considered germane, a comment would have to object to the
use of minor permit revision procedures for the requested change on
the grounds that the source had failed to comply with the procedural
requirements of the minor permit revision process (e.g., the source
failed to send public notice to interested persons), or argue that the
change is ineligible for the minor permit revision process because it
conflicts with one or more of the applicable gatekeepers (e.g., the
source is in violation of a permit term it seeks to change). To be
considered non-frivolous, a comment would have to specify the basis
for its objection and present factual or other relevant information in
support of its claim. To keep the permitting authority from allowing
the source to make the requested change, the comment would have to be
both germane and non-frivolous. For example, the comment could not
merely assert that the change is ineligible for the minor permit
revision process without providing any explanation or information to
aid the permitting authority in evaluating its claim.
The permitting authority would have to provide a written
explanation of whether a comment or objection is germane and
non-frivolous. The permitting authority would not be required to
accept any recommendations that are not based on applicable
requirements or the requirements of the part 70 program. All such
written responses would then be placed in the administrative record of
the permit revision. In cases of objections filed by affected States,
the permitting authority would have to forward to EPA a written
response to any of these objections that were not accepted as part of
EPA's opportunity to review the requested change. Finally, any
permitting authority rejection of a written public or affected State
comment or objection would have to be judicially reviewable in State
court following the permitting authority's final action on the minor
permit revision application.
If the permitting authority either rejects a public or affected
State objection as not germane and non-frivolous or fails to respond
to such objection within 28 days after public notice of the revision
request, the source could implement the requested change on the 29th
day after the public notification. Again, this ability to implement
the change would be contingent both on the permitting authority not
having denied the request or transferred it for processing as a
significant permit revision, and on EPA not having objected to the
requested change by then.
It should be noted that the permitting authority may address in
the minor permit revision process any comments that do not object to
the use of minor permit revision procedures for the requested change,
but instead object to an aspect of the proposed permit revision that
is unrelated to whether the change is eligible for minor permit
revision procedures. This would not keep the source from making the
change on the 29th day and would not require the permitting authority
either to deny the minor permit revision request or to transfer it for
processing as a significant permit revision. For example, the comment
could suggest additions to the source's proposed recordkeeping or
reporting requirements, to which the permitting authority could
respond while continuing to process the requested change as a minor
permit revision.
The permit program would also have to provide that if the
permitting authority failed to act on a public objection, the
commenter could file suit in State court to force the permitting
authority to take action on the written comment. If the permitting
authority denied the minor permit revision request (because, for
example, the change failed to comply with applicable requirements) and
the source had already implemented the change, the program would have
to provide that the source would be liable for violating its existing
permit from the time it implemented the change. If the permitting
authority decided to transfer the revision request to the significant
permit revision track and the source had implemented the change, the
source would be liable for violating its existing permit from the time
it implemented the change, unless the permitting authority ultimately
approved its revision request and found that the change had been
eligible for minor permit revision procedures. The Agency requests
comment on whether, if the change is transferred to the significant
permit revision track, the source should be required to cease
operation of the change until a final decision is made on its revision
request.
In addition, the program would have to enable the commenter to
bring suit in State court to seek an injunction against the source
implementing or continuing to implement the change. Injunctive relief
would have to be available in accordance with the applicable standards
for obtaining such relief under State or local law. In proposing such
a requirement, EPA is not proposing to promulgate a national standard
that must be met to obtain an injunction.
On the other hand, if the permitting authority rejected a public
or affected State written objection within the required 28-day period,
the commenter could obtain judicial review of that rejection after the
permitting authority takes final action on the permit.
As for merged program changes and de minimis permit revisions,
when processing a minor permit revision request, the permitting
authority would be able to revise (rather than deny or transfer for
processing as a significant permit revision) the request without
necessarily rendering the source liable for violating its existing
permit from the time it implemented the requested change. Provided
that the permitting authority's revisions to the requested draft terms
and conditions are not necessary to qualify an ineligible change for
processing as a minor permit revision and do not change the source's
proposed determination of which applicable requirements it must meet
as a result of the change, such revisions need not render the source
liable for violating the terms of its existing permit if the source
can demonstrate using reasonably available means its compliance with
the revised permit terms incorporating applicable requirements.
For changes that the permitting authority continues to process as
minor permit revisions, the permitting authority could take final
action to revise the permit after the close of EPA's 45-day review
period, provided that EPA has not objected to the requested change,
and provided that the final revision to the permit does not
substantially differ from the originally proposed minor permit
revision. Under the proposed part 70 revisions, the permitting
authority would be required to act on the minor permit revision
request within 60 days after receipt of the minor permit revision
application or 15 days after the expiration of EPA's final 45-day
review period, whichever is later. The required permitting authority
action could take one of four forms: final approval of the minor
permit revision request; final denial of the request; revision of the
request accompanied by re-notice and re-submittal of the revised
request to EPA as a new minor permit revision; or a determination that
the request is not eligible for minor permit revision procedures
accompanied by a transfer for processing the request as a significant
permit revision. These actions would constitute "final action" for
the purpose of judicial review to which previous reference was made.
When the permitting authority took final action to approve the
minor permit revision request, the permitting authority would attach
the approved addendum to the originally issued permit. The addendum
would specify the date on which it took effect. Upon approving the
requested change, the permitting authority would also have to notify
any person or affected State who commented on or objected to the
requested change during the 21-day public comment period for purposes
of triggering the period for petitioning for EPA or judicial review.
The permitting authority would have discretion, however, in
determining the best method for providing such notice. The permitting
authority would also have to place a copy of its final determination
(including approvals, denials, and revisions) in the public docket in
which it places all minor permit revision requests, or provide a
substantially equivalent means of insuring public access to the final
minor permit revision approval. Finally, the permitting authority
would be allowed to extend the permit shield provided in
section 70.6(f) to any minor permit revision that had been approved
pursuant to a process at least as stringent as the one described in
this proposal.
If the permitting authority denies or transfers a minor permit
revision request on germane and non-frivolous grounds, it would have
to notify any person or affected State that objected during the public
comment period of its determination to deny the request or to transfer
it for processing as a significant permit revision, and would have to
place a copy of its determination in the public docket to the minor
permit revision file.
Whenever a requested minor permit revision is transferred for
processing as a significant permit revision, the permitting authority
would have to provide public notice and a further opportunity to
comment on the proposed revision in the manner required by the
permitting authority's applicable significant permit revision
procedures. Such notice would have to provide an opportunity for a
public hearing, and describe the procedures to request a hearing or
indicate the time and place of any hearing already scheduled.
However, after transferring the change from minor permit revision
procedures, the permitting authority would not be required to wait the
full 30 days before conducting the hearing. Rather, it could hold the
hearing as soon as 14 days after publishing notice that the change has
been transferred to the significant permit revision track. The
permitting authority would not be allowed, however, to shorten the
30-day period in which the public and affected States would be able to
submit written comments on the transferred change, and a new 45-day
period for EPA review would begin when the permitting authority
forwarded to EPA a subsequent proposed significant permit revision.
It should be noted that following final action on minor permit
revision requests, all affected parties would have all the rights
provided them elsewhere under part 70. In other words, permittees
would have the right to appeal and get judicial review of permitting
authority denial of minor permit revision requests, and commenters
would have the right to appeal and seek judicial review of permitting
authority final approval of minor permit revisions. In addition,
commenters would also have the ability to petition EPA to object to
the minor permit revision request, as provided in section 70.8.
d. Rationale for Proposed Minor Permit Revision Procedures. The
Agency believes that part 70 as originally promulgated fails to
provide adequate opportunities for public review of the changes now
eligible for minor permit modification procedures. At the same time,
EPA is concerned that the current part 70 may be unnecessarily
restrictive in allowing few changes to be processed through expedited
permit revision tracks and requiring most changes to be processed
through significant permit revision procedures. Under the
interpretation of "title I modifications" that includes minor NSR
changes, minor NSR changes would be ineligible for processing as minor
permit modifications. Consequently, EPA proposes to make a broad
universe of changes eligible for minor permit revision treatment, and
simultaneously to enhance the public notice and procedural elements of
this revision track to make the permit revision process, and the
permit program in general, more usable for sources, permitting
authorities, affected States, the public, and EPA.
(1) Scope.--(i) Minor NSR changes. Many States and local
agencies have extensive minor NSR programs that EPA approved into
SIP's under section 110(a)(2) of the Act. Most of these programs
provide for public participation for preconstruction actions at
certain levels (e.g., 25 tpy). Below these levels, however, many
programs provide no public participation. Under EPA regulations
governing minor NSR programs (40 CFR 51.160), permitting authorities
approving preconstruction actions are required to provide public
notice and an opportunity to comment for such actions except to the
extent EPA approved any exemptions from public process established in
the minor NSR program.
The EPA believes that some prior public process is generally
necessary in the part 70 context for minor NSR changes that exceed de
minimis levels and that did not undergo the merged program process.
Many minor NSR actions establish facility-specific limits that keep
sources from exceeding major source thresholds. For those limits to
properly serve that purpose, they must reduce emissions to the extent
claimed and they must be practicably enforceable. The importance of
properly developed limits accordingly makes public review of those
changes important.
At the same time, to the extent that part 70 is largely a
procedural regulation that does not establish new applicable
requirements, EPA does not believe it is necessary to require that
permitting authorities subject minor NSR actions to the significant
permit revision process. To require the permitting authority, after
providing a substantial preconstruction review of the change, to
provide the additional level of review required under full significant
permit revision procedures for all minor NSR changes exceeding de
minimis thresholds would place an unnecessary and potentially
crippling burden on permitting authorities and cause needless delay to
many sources. This would be an unfortunate and unintended legacy for
the permit program, and would conflict with the Congressional intent
that permit revision procedures be adequate, streamlined, reasonable,
and expeditious.
Consequently, EPA believes that minor NSR changes should be
eligible for the proposed minor permit revision track (with one
exception described below). The EPA believes that the proposed minor
permit revision process with its 21-day public comment period would
provide adequate public review opportunities to ensure that the minor
NSR decisions meet part 70 requirements. This reliance in part on the
review by the permitting authority during the minor NSR process is
consistent with EPA's policies to build upon and not unduly disrupt
existing State and local programs and to promote the integration of
part 70 with existing programs where possible. The EPA solicits
comment as to whether including this category of changes within the
scope of those eligible for minor permit revision procedures is
appropriate, and whether such changes would more appropriately be
processed through either a less or more expeditious process. The
Agency also notes again that it is considering the advisability of
adopting for part 70 purposes valid State or local minor NSR
exemptions from public process (see discussion in section III.E.3.,
Administrative Amendments).
The one exception to allowing the proposed minor permit revision
procedures to be used to process any minor NSR change involves certain
"netting" transactions (i.e. a single minor NSR action employing
trades between more than one emissions increase and decrease to remain
below major NSR significance levels and avoid processing as a major
NSR modification). Netting transactions which would be ineligible for
the minor permit revision process are those (1) for which at least a
30-day public comment period was not in fact provided and (2) that
include either a single emissions increase greater than the applicable
significance level or a sum of increases greater than the applicable
major source threshold. The EPA stresses that both conditions (1) and
(2) must be met to render the netting transaction ineligible for the
proposed minor permit revision track. For example, a transaction of
several increases and decreases since the last time the permit
received public review of at least 30 days, including any single
increase above significance levels or a series of increases the sum of
which is above major source thresholds, would still be eligible for
minor permit revision procedures if the NSR process for these
transactions provided a public comment period of at least 30 days.
The EPA is proposing to exclude this category of minor NSR changes due
to concerns about the complexity of such transactions and their
greater potential for significant environmental impact. The Agency
foresees a greater need for public, affected State, and EPA oversight
before these changes should be implemented at a source. The EPA
solicits comment regarding the need to exclude this class of minor NSR
changes from eligibility as a minor permit revision, whether the
exclusion criteria are sufficiently protective, and whether there are
any other classes of minor NSR changes that should be excluded for
similar reasons.
(ii) Major NSR changes. In response to concerns arising from
State and local permitting authorities and from discussions with
petitioners in the part 70 litigation, and for reasons similar to
those previously given for minor NSR changes, EPA is proposing to
allow permitting authorities to use the proposed minor permit revision
process to incorporate major NSR changes that did not undergo merged
program revision. (As noted earlier, EPA expects that all major NSR
programs would be merged with the part 70 program, making the need for
minor permit revision procedures for major NSR changes largely
academic.) Since major NSR changes receive extensive review by the
permitting authority and a minimum of a 30-day public comment period
prior to final action by the permitting authority, EPA believes that
these programs should not need the significant permit revision process
before they could be incorporated into the part 70 permit. Although
major NSR changes have more significant environmental impact than do
minor NSR changes, EPA recognizes that the process for developing
applicable requirements for major NSR changes is also more elaborate.
The EPA expects that incorporation of major NSR permit terms and
conditions into the part 70 permit would be noncontroversial.
As with minor NSR changes, EPA believes that some additional
part 70 process is necessary to assure that applicable requirements of
major NSR are incorporated into the part 70 permit, that any
additional compliance monitoring terms and conditions required by
part 70 are properly developed, and that all other part 70
requirements are satisfied. The EPA does not believe, however, that
permitting authorities should need the significant permit revision
process to meet these requirements for major NSR changes. Rather, EPA
believes that the expedited procedures of the proposed minor permit
revision process strike a reasonable balance between the need for
permit revision procedures to be adequate and streamlined and the need
to provide an appropriate opportunity for public participation. The
EPA solicits comment on allowing major NSR changes to be eligible for
minor permit revision procedures, and whether any additional
conditions should be placed on such eligibility.
(iii) Section 112(g) actions. To address concerns raised during
development of State and local programs and discussions with the
part 70 litigants, EPA proposes to allow offsets and modifications
approved pursuant to "non-merged" section 112(g) pre-operation and
preconstruction programs to be incorporated into the part 70 permit
through minor permit revision procedures, provided such actions were
subject to at least a 30-day public comment period. While permitting
authorities do not currently have EPA-approved section 112(g)
programs, EPA notes that proposed regulations for implementing the
offset and modification requirements of section 112(g) would require
that permitting authorities provide a 45-day comment period for making
such determinations. Where permitting authorities in fact provide an
opportunity for at least a 30-day public comment period, EPA believes
that the additional part 70 requirements described above for minor and
major NSR changes would be adequately satisfied by the proposed minor
permit revision process. Due to the greater risk potentially posed by
emissions of HAP's, however, EPA solicits comment on the
appropriateness of extending eligibility to this class of changes, and
whether the requirement that permitting authorities provide at least a
30-day public comment period for the section 112(g) change prior to
starting the minor permit revision process is sufficient to ensure
that the section 112(g) requirements are appropriately determined and
incorporated into the part 70 permit.
In addition to the approach EPA is proposing today, EPA is
considering an alternative mechanism for approving section 112(g)
offsets due to concerns which have been expressed about the delay
costs which industries may experience as a result of the offset
pre-approval process. Under the alternative approach which was also
outlined in EPA's proposal notice to implement section 112(g) (see
59 FR 15504 (April 1, 1994)), the source would submit its offset
demonstration to the permitting authority at the time it begins
operation of the equipment causing the increase. If the permitting
authority during its review were to determine that the offset failed
to meet the offset requirements of the section 112(g) rule, the source
would be liable for violating the requirement to apply case-by-case
MACT to the equipment causing the increase and would be subject to the
full range of enforcement activities and penalties available under the
Act. The EPA believes that the penalties faced by sources under the
Act create an incentive for the source to ensure that the offset in
fact complies with the requirements of section 112(g). Consequently,
EPA believes that this approach also deserves consideration for a
merged part 70/section 112(g) program, particularly if it is included
in the final section 112(g) rule. The EPA solicits comment on whether
such an approach would provide a significant benefit to industry by
reducing delays and whether it would create obstacles to enforcement,
and the nature of those obstacles, by the Federal, State, or local
governments or citizens should it be determined that the source's
offset was inadequate. The EPA intends to incorporate into part 70
the results of the final rulemaking to implement section 112(g) with
respect to public review and offsets.
Changes triggering the applicability of other requirements under
the Act, including MACT and SIP requirements, would generally also be
eligible for the minor permit revision process. (For MACT standard
incorporation, however, see discussion later in this preamble
explaining alternative approaches to addressing changes that render a
source subject to MACT.) While these changes would not have undergone
a NSR process prior to the source requesting a part 70 permit
revision, EPA believes that implementation of these requirements (with
the probable exception of some MACT standards) will be relatively
straightforward and that the proposed minor permit revision process
period would thus be sufficient to afford adequate permitting
authority, public, affected State, and EPA review. The Agency
solicits comment on this aspect of its proposal and in particular
seeks information on current permitting authority implementation of
these other standards.
To address concerns raised in discussions with petitioners, EPA
proposes to remove the current minor permit modification gatekeeper
prohibiting changes that violate applicable requirements, because this
prohibition applies not only to minor permit revisions but across the
board to all permit revisions. By applying the gatekeeper only to
minor permit modifications, the current rule implies that significant
permit modifications may be used to incorporate changes that violate
applicable requirements, but no change that violates applicable
requirements could be incorporated into a part 70 permit. Title V and
part 70 require permits to assure compliance with applicable
requirements. Permits may not then include terms, regardless of the
amount of public process provided, that violate applicable
requirements. Indeed, an important function of public process is to
ensure that permit terms accurately reflect, and are not inconsistent
with, applicable requirements. The principle that permit terms, new
or revised, must assure compliance with applicable requirements is so
fundamental to title V and part 70 that EPA believes it is unnecessary
to apply the current rule's "may not violate" gatekeeper to all the
proposed revision tracks. If a proposed permit term, whether
developed at permit issuance or revision, violates an applicable
requirement, it is not approvable. No additional gatekeeper is needed
to reinforce that point.
Another reason to delete that gatekeeper is to avoid the
implication that any of the permit revision tracks prohibit changing
conditions in a part 70 permit that derive from major or minor NSR
permits. Since the NSR permits generate applicable requirements that
become terms and conditions of the part 70 permit, issuance of a
revised NSR permit would redefine the applicable requirement and the
part 70 permit could then be correspondingly revised under the
proposed minor permit revision process without violating an applicable
requirement.
The EPA is also deleting the gatekeeper in current part 70 that
would make changes ineligible for minor permit revision procedures if
they are required by the operating permits program to be processed as
significant permit revisions. The Agency is deleting this gatekeeper
because it too should be applied to all of the streamlined permit
revision tracks if it is applied to any. Indeed, EPA believes this
gatekeeper goes without saying since the permitting authority clearly
retains authority to require changes to be processed using more
stringent procedures than part 70 requires.
The EPA proposes the gatekeeper prohibiting the use of minor
permit revision procedures for changes to permit terms with which the
source is not in compliance for the same reason it is proposing that
gatekeeper for de minimis permit revision procedures. Consequently,
EPA proposes that the significant permit revision process be used
where changes need to be made to terms with which the source is not in
compliance. The Agency is concerned, however, that the proposed
gatekeeper, by requiring the significant permit revision process,
might delay a source from making revisions to its permit that it can
demonstrate to be necessary to achieve compliance with applicable
requirements. For this reason, EPA solicits comment on the
appropriateness of the proposed restriction, and whether additional or
different safeguards might serve the same purpose of assuring that
noncomplying sources do not use streamlined procedures to avoid
enforcement actions for noncompliance. Specifically, EPA proposes to
narrow the proposed gatekeeper to exclude situations where the
source's proposed change has already been addressed by the permitting
authority and the public in prior procedures, such as minor and major
NSR actions. To the extent that these prior procedures addressed and
remedied a source's noncompliance, EPA recognizes that it might be
unnecessary to require that the results of these actions be
incorporated through the more burdensome significant permit revision
process.
The EPA also takes comment on whether it should allow exemptions
from the "in-compliance" gatekeeper when the permitting authority has
determined that, solely as a result of new emissions-calculating
methods or information, the source is not in compliance with a permit
term. In such a case, EPA solicits comment on allowing the permitting
authority to revise the permit using either the minor permit revision
or de minimis permit revision process if the change would otherwise be
eligible for those tracks. The EPA solicits comment on how to limit
the exemption described to external factors, such as changes in
emission factors or source models, rather than factors over which the
source has control.
The EPA proposes to retain the current gatekeeper that would
exclude from the minor permit revision process changes to a part 70
permit term established to limit emissions and developed through a
part 70-only process for which there is no underlying applicable
requirement enforceable by EPA outside the part 70 permit. Such terms
include federally enforceable emissions caps in the permit assumed to
avoid classification as a major modification or major stationary
source for a particular pollutant, alternative emissions limits
established in the part 70 permit pursuant to section 70.6(a)(1)(iii),
alternative emissions limits approved pursuant to a HAP early
reductions program under section 112(i)(5) of the Act, and
case-by-case MACT limitations determined pursuant to section 112(j) of
the Act. These classes of terms are established for the first time in
a part 70 permit issuance or revision process, usually on a
case-by-case basis, and are not otherwise federally enforceable
outside the part 70 permit. They also lack review or approval by the
permitting authority prior to the start of the part 70 process and, to
the extent the part 70 terms or conditions were taken to avoid an
applicable requirement, revising those terms and conditions could
render the source subject to applicable requirements to which it was
not previously subject. The Agency believes that revisions to such
requirements should be made only after full review by the permitting
authority, public, EPA, and affected States. Consequently, EPA
continues to believe these types of changes should not be eligible for
the minor permit revision process. The EPA proposes to retain the
requirement that significant permit revision procedures apply to these
types of changes, but solicits comment on the appropriateness of this
approach.
(2) Process. In keeping with the expansive scope of changes
eligible for the new minor permit revision procedures, EPA believes
more procedural safeguards are necessary to ensure that incorporation
of a wider scope of changes through the minor permit revision track
results in accurate, enforceable permits. First, the source would
have to meet the application requirements like those for merged
program changes and de minimis permit revision for the same reasons
(see earlier discussions for descriptions and explanations). In
addition, a minor permit revision application would have to include a
certification that the source had provided the required public,
affected State, and EPA notice of the requested change, as discussed
below. This certification would assure permitting authorities that
all prerequisites to review of the minor permit revision application
had been met. It would also alert EPA of the presence of any grounds
for objection to the proposed permit revision. In recognition of the
notification requirements that would apply to the source under the
proposed revisions to part 70, EPA would rescind the requirement that
applications include completed forms for the permitting authority to
use to notify EPA and affected States of the minor permit revision.
To promote expeditious processing of minor permit revision
requests, today's proposal requires the source, rather than the
permitting authority, to provide direct notice to affected States and
EPA of proposed minor permit revision actions. Notices to EPA would
have to include the draft addendum containing the proposed revisions
to the existing permit. This would relieve permitting authorities the
added burden of copying and sending notice to EPA and affected States
immediately upon receipt of applications. While this places a
slightly greater burden on sources than does the current rule, EPA
notes that sources are generally in the best position to provide quick
notice to EPA and affected States, and that minor permit revision
processing will be more expeditious as a result. The permitting
authority, however, may retain the option of providing this notice
instead of the source. Nevertheless, EPA solicits comment on whether
there may be other methods for notifying EPA and affected States that
better accomplish this goal, and on the appropriateness of sources,
instead of permitting authorities, providing notice.
For similar reasons, the proposed revisions to part 70 would
require sources to provide public notice of minor permit revision
requests. Again, EPA believes that having the source provide direct
notice by publication and mailings to interested persons would better
enable expeditious processing of minor permit revisions. It would
avoid the delay that would likely occur if permitting authorities had
to prepare and provide notice and would assure that the permitting
authority, affected State, EPA, and public review periods would run
from the same point in time. Public notices would have to provide
enough information to enable the public to comment on a timely basis,
and indicate that if the permitting authority did not receive germane
and non- frivolous objections to the requested change within the
public comment period, the source could implement the change, provided
the permitting authority had not denied the request or transferred it
for processing as a significant permit revision and EPA had not
objected to it. The EPA believes that publication of notices in a
newspaper of general circulation within the area where the source is
located, supplemented by direct mailing to interested persons, would
be sufficient to provide the required notice. The EPA solicits
comment as to alternative means of adequately providing notice.
As for de minimis permit revisions, to assure public access to
minor permit revision applications, the proposed revisions would
require that permitting authorities maintain a public docket in which
requests are placed on the day that the permitting authority receives
them. The EPA believes that a docket would assure that concerned
citizens may review applications and submit pertinent comments before
the close of the public comment period and before sources can
implement proposed changes. However, EPA thinks there may be
alternatives to a public docket that could adequately assure public
access and proposes to allow permitting authorities to propose
substantially equivalent methods in their permit programs which EPA
would evaluate on a case-by-case basis.
The EPA proposes that public comment periods for minor permit
revisions last at least 21 days from the date the source provides the
public notice. The EPA believes that this is the shortest amount of
time in which a potential public commenter could reasonably be
expected to learn of the requested change, gain access to necessary
information to evaluate the request, review and evaluate the
application, draft written comments meeting the germane and
non-frivolous standard, and submit them before the source implements
the requested change. However, EPA solicits comment as to whether
other time periods may be appropriate, either shorter or longer, based
on State or local permitting experience.
The proposed minor permit revision procedures would establish an
admittedly elaborate set of checks and balances to ensure that the
source and the permitting authority are motivated to anticipate and
respond to public concerns with requested changes. The fact of public
review and the potential for liability if its request is denied should
instill in the source a strong incentive to exercise care in the
preparation of its requests and its use of the procedures. The
potential for citizen suits for failure to respond to timely public
objection should encourage permitting authorities to respond to any
objections. The source's self-interest should also be served by
encouraging the permitting authority to respond to timely objections,
to avoid suits or injunctions brought by citizens and the possibility
of the permitting authority being ordered by a court to act on the
objection after the source had begun to operate the change. Where the
source or the permitting authority fails to live up to its
responsibilities, the public can comment to that effect or resort to
EPA or the courts, depending on the circumstances. The EPA believes
the incentive structure established by these checks and balances is
important to ensuring the integrity of streamlined public review of
changes having larger potential environmental significance. However,
the Agency is interested in comments and suggestions as to how to
simplify the process without substantially undermining the discipline
it would impose.
As now provided by the minor permit modification process in the
current part 70, a source could implement its requested change prior
to the permitting authority taking final action on it. Sources could
implement the change on the day after the close of the public comment
period where no comments had been submitted, and provided that the
permitting authority had not denied the requested change or
transferred it to another process and that EPA had not objected to the
request. The Agency believes that the procedural safeguards provided
by the minor permit revision process so minimize the risk of the
source operating a change that violates applicable requirements that
it may temporarily exempt sources from the statute's prohibition on
operations "except in compliance" with existing permit terms. Beyond
the safeguards provided by the de minimis procedures, the minor permit
revision process requires that sources wait to operate changes until
the end of the comment period, so that the public has a chance to flag
problems before operation.
While part 70 currently allows a source to implement a minor
permit modification upon submitting its application, EPA now believes
that in view of the potential environmental significance of changes
qualifying for this revision track, the permitting authority, affected
States, EPA, and public should have some period of time in which to
review such requests before the source implements the change. The EPA
also believes that the proposed 21-day waiting period is not an
unreasonable burden on sources considering the kinds of changes
allowed under the proposed minor permit revision process.
The deadline for permitting authority final action on minor
permit revision requests under the proposal would be significantly
shorter than that established by the current part 70 for minor permit
modifications. Final action would occur when the permitting authority
either approves or denies the request, determines that it does not
qualify for minor permit revision processing, or revises the request
and re-notices it and resubmits it to EPA. Final action under the
proposal would be required to occur within 60 days after receipt of
the application or 15 days after the expiration of EPA's review
period, whichever is later. Currently, part 70 requires permitting
authorities to take final action on a minor permit modification within
90 days. While EPA recognizes that expanding the eligibility for
minor permit revisions over the current provisions could significantly
increase the number of requests subject to the shorter deadline, EPA
believes that incorporation into part 70 permits of such changes will
be generally straightforward, as most changes will have already
received permitting authority scrutiny and approval in other
procedures, such as preconstruction review. Consequently, EPA
believes that 60 days provides permitting authorities adequate time to
process minor permit revision requests. Of course, permitting
programs may be more stringent by providing for longer periods before
permitting authorities must take final action. The EPA requests
comment on whether a period different than 60 days is necessary for
permitting authorities to process minor permit revisions.
The proposed revisions would also require permitting authorities,
when final action is taken on minor permit revision requests, to
notify public commenters and affected States who commented on the
request. While permitting authorities would have substantial
discretion in determining the best method for providing this notice of
final action, EPA believes that some notice is necessary to insure
that commenters are informed as to the outcome of the process so that
they may utilize their various opportunities to appeal to the
permitting authority, State court, or to EPA when they disagree with
the final action. Permitting authorities would also be required to
place a copy of the final determination in the public docket (or
substantially equivalent mechanism) that they maintain for minor
permit revision requests. Again, permitting authorities would have
substantial discretion in developing a docket system that best assures
that the public has access to final determinations.
Part 70 does not currently allow the permit shield to extend to
minor permit modifications, principally due to the absence of public
participation in the process. Since the proposed revisions to part 70
would require that the process include a public comment period before
sources could implement requested changes, EPA proposes to allow
permitting authorities to extend the permit shield to minor permit
revisions upon their final approval. The EPA is concerned that not
allowing the permit shield could force sources to request otherwise
qualifying changes to be processed as significant permit revisions to
obtain the shield. This could undermine the effort to create
streamlined and expeditious procedures for permit revisions. The EPA
seeks comment on the appropriateness of providing the permit shield in
these situations.
Part 70 currently provides that if a source fails to comply with
the terms and conditions proposed in its minor permit modification
application during the interim period before the permitting authority
acts to revise the source's permit, the existing permit terms and
conditions it seeks to modify may be enforced against it. While this
would provide some deterrent against a source making improper use of
the minor permit revision track, it does not address the degree to
which EPA believes a source should be liable if the permitting
authority does not approve the minor permit revision request. The
proposed revisions to part 70 would fill this gap by providing that
the source would be liable for violating its existing permit from the
time it implemented the change, if a source implements a requested
change before the permitting authority takes final action on the
application, and (1) the permitting authority then denies the request
or transfers it for processing as a significant permit revision on
germane and non-frivolous grounds, or (2) EPA subsequently objects to
the request. The EPA believes this addition is necessary to assure
that sources do not frivolously submit and implement minor permit
revision requests that permitting authorities are not likely to
approve.
As in the case of merged program and de minimis process changes,
however, a permitting authority would be able to revise (rather than
disapprove) minor permit revision requests to a limited extent without
necessarily rendering the source liable for violating its existing
permit. The EPA is proposing this relief for the reasons set forth in
the administrative amendment section of this preamble where the
provision is further discussed.
7. Significant Permit Revisions
Under the proposed revised rule, the significant permit revision
process would remain essentially the same as the current significant
permit modification process, but the types of changes required to be
processed under it would shrink dramatically. Significant permit
revision procedures would be required for those changes that cannot be
made as administrative amendments, de minimis permit revisions, or
minor permit revisions. The EPA has designed the proposed revision
procedures such that most changes that would require processing as a
significant permit modification under the current rule should qualify
under the proposed rule as minor permit revisions, de minimis permit
revisions (if they are below de minimis thresholds and meet the de
minimis gatekeepers), or administrative amendments (if they are
subjected to a merged process). Examples of changes that would
require processing as significant permit revisions under the proposed
revisions to part 70 include:
(i) Establishing or revising an emissions limit which uniquely
resides in a part 70 permit (other than in a merged part 70 permit),
such as (A) alternative emissions limits approved pursuant to
regulations promulgated under section 112(i)(5) of the Act; (B)
restrictions on potential to emit that reside only in a part 70
permit; or (C) equivalent RACT requirements established in a permit
under the provisions of section 70.6(a)(1)(iii);
(ii) Netting transactions for which a 30-day public comment was
not provided and that include any single increase that exceeds minor
modification significance levels or a sum of increases that exceed
major source thresholds; and
(iii) Significant changes in existing monitoring requirements and
relaxations of recordkeeping or reporting requirements in the permit
(as in the current rule).
8. Solicitation of Input
While today's proposal attempts to strike a reasonable balance
between industry's desire to minimize permitting delays and the need
for public review and permitting agency oversight, the Agency is
concerned with the complexity of the proposal. The Agency is not
proposing any specific alternatives to the proposed four-track permit
revision system, but is seeking information that would provide a basis
for simplifying the proposed system to improve its implementation.
The EPA, therefore, solicits specific suggestions regarding ways to
simplify and streamline the existing proposal. The Agency
particularly solicits comment in the following three areas:
1. Empirical information regarding the appropriate scope for
each permit revision track including such information as the volume of
changes that permitting authorities would expect under each track and
the degree of difficulty permitting authorities would expect to
encounter when implementing the proposed four-track system;
2. Examples of typical source changes that would (or would not)
receive reasonable treatment under the proposed permit revision
system; and
3. Alternative approaches and structures for processing permit
revisions that meet the statutory and policy objectives of title V as
set forth in this notice.
Much of the complexity evident in the proposed permit revision
process results from the need to integrate the part 70 process with
the requirements under title I of the Act, especially the minor NSR
program that all States implement pursuant to section 110(a)(2)(C) of
the Act. Today's proposal provides for a number of specific avenues
for incorporating the results of minor NSR permit actions into the
part 70 permit, including (1) an administrative amendment track for
changes that are the product of a merged part 70/NSR process, and (2)
a de minimis track to process revisions expeditiously for many small
non-merged minor NSR actions.
The EPA also solicits comment on allowing a permitting authority
to create in a source's part 70 permit a condition authorizing certain
minor NSR changes that occur during the term of the permit to be
incorporated into the part 70 permit by administrative amendment even
though the changes are not the product of a merged program. This
program would thus be similar to that proposed for the de minimis
permit revision track in that the permitting authority would have to
pre-authorize its use for the specific source at original permit
issuance and subsequently examine its appropriateness for the next
permit term at each renewal. Under the approach, the part 70 program
would have to provide that qualifying minor NSR changes at the source
conform to part 70 requirements for compliance monitoring and comply
with existing part 70 permit conditions for reporting, permit fee
payment, and annual compliance certification. In short, the permit
program would essentially provide that the substantive requirements of
a merged part 70/NSR program would be met for the minor NSR change.
No permit shield would be available until the permit was subsequently
renewed.
The types of minor NSR actions that could qualify for this
approach would be limited to those that (1) do not violate the
existing part 70 permit (except that changes to part 70 permit terms
originally created in a previous NSR permit could be authorized to be
made under this approach) and (2) do not establish permit conditions
for the purpose of circumventing the applicability of an otherwise
applicable requirement and/or the status of being major for a
particular pollutant. As an example of the latter qualification, the
permitting authority could determine that actions to restrict the
hours of operation, percent capacity utilization, or production were
beyond what is customary and usual for similar sources. In addition,
this restriction is intended to preclude preauthorization for any
other operational conditions taken by a source in minor NSR which are
not directly and easily related to emissions but have the effect of
exempting the source on the basis of its reduced emissions from a
specific otherwise applicable requirement.
The Agency believes the approach outlined above may be
appropriate in that it would provide expedited processing for the many
small minor NSR changes that occur, so long as part 70 permit content
requirements are met. It would also ensure that the public, affected
States, and EPA have an opportunity to review those minor NSR actions
that have the largest potential impact on the environment. A more
restrictive variation on the preceding approach would be to restrict
the approach to only those NSR actions that would qualify for the de
minimis permit revision process.
The EPA solicits comment on the value and legality of these
alternative approaches. The EPA specifically requests identification
of problems associated with these modifications and possible
solutions, such as any appropriate enhancement to the underlying NSR
process.
The EPA is also aware that some State and local agencies are
integrating their existing NSR programs with their part 70 programs to
create a "unitary" permit program (i.e., a combined permit to
construct and operate issued under an integrated NSR and part 70
permit program). While EPA fully supports such integrated programs,
it is concerned that several of the gatekeepers defining eligibility
of the various proposed permit revision tracks may not be appropriate
for unitary permit programs. For example, many of the terms and
conditions of a unitary permit would be unique since a separate NSR
permit would not exist. The EPA solicits comment on whether to grant
an exemption from the "unique" gatekeeper to terms and conditions of a
NSR permit for unitary permits, provided that the excluded terms are
federally enforceable outside of the unitary permit (e.g., under the
SIP). The EPA also solicits comment on whether any forms of further
relief might be necessary for unitary permit programs.
9. Incorporation of New Standards
This section describes the processes the EPA proposes to use to
incorporate into the part 70 permit new standards promulgated under
section 112. Section F. 3. of this preamble solicits comment on
whether it would be appropriate to use these processes for other
standards, such as SIP requirements.
The proposal outlined below is a result of EPA providing a
mechanism needed for the implementation of MACT standards, and it has
not been discussed with petitioners. To the extent that conflicts
occur, the reader should consider the processes proposed in this
section as an alternative proposal and should expect any conflicts to
be reconciled in the final rulemaking.
a. Background. Section 112(d) of the Act requires the
Administrator to promulgate emission standards for each category or
subcategory of major and area sources of HAP's listed by EPA under
section 112(e). Section 112(e) requires that EPA set emission
standards under a regulatory agenda for: 40 categories by November 15,
1992; 25 percent of listed categories by November 15, 1994; 25 percent
by November 15, 1997; and the remaining 50% by November 15, 2000. On
December 3, 1993, EPA published the regulatory agenda establishing the
schedule for setting MACT standards. Since then, EPA has established
MACT standards for the first 40 categories or subcategories and
standards for more than 150 other categories have been identified for
development.
These MACT standards apply in various ways to both new and
existing sources. Generally, existing sources become subject to newly
promulgated MACT standards as a result of being in a source category
for which EPA promulgates a MACT standard. Existing sources may also
add new units or reconstruct existing units and must comply with MACT
standards that apply to new units at startup. Finally, sources may
modify existing units in such a way that the modified unit becomes
subject to the MACT requirements for existing units for the first
time.
Section 504(a) of the Act requires that each part 70 permit
contain enforceable conditions as necessary to assure compliance with
all applicable requirements. Part 70 defines "applicable requirement"
to include any standard or other requirement under section 112 of the
Act.
Consequently, after promulgation, section 112 requirements must
be included in the part 70 permit of any source subject to MACT
standards. If a MACT standard is promulgated before the permit is
issued, the permit must include the standard upon issuance, except
that some MACT standards in which compliance requirements are not
known until the compliance date (which may be months after
promulgation of the MACT standard) may require a subsequent permit
revision to incorporate compliance details that are determined at that
time. If the standard is promulgated after the permit is issued,
section 502(b)(9) of the Act and current section 70.7(f) require that
the permit be reopened if the source is major and more than three
years remain on the term of the permit. The reopening and subsequent
permit revision to include the MACT standard must occur within 18
months after the standard is promulgated.
Section 502(b)(9) requires that reopenings use procedures
consistent with those established under section 502(b)(6). If a
source is major and less than 3 years remain on the permit term, or if
it is nonmajor, section 112 standards would normally be incorporated
into the permit at renewal, unless the permitting authority required
reopening earlier. If a source would need to operate in manner that
conflicts with its existing part 70 permit in order to comply with the
MACT standard, however, section 502(a) would require it to apply for a
permit revision before operating in that way. This of course does not
mean that a source would be relieved from complying with the MACT
standard until it obtained the necessary permit revision. The source
must still comply with the MACT standard independently of its part 70
permit obligations.
Although section 112 standards vary widely in complexity and
sometimes allow sources to select alternative control strategies, EPA
believes MACT standards may be sorted into three broad categories,
referred to in this discussion as "type one," "type two," and "type
three." The type one category includes standards that are
self-implementing. That is, the detailed compliance requirements that
apply to sources covered by the standard are specified in the standard
itself at the time of promulgation. Although some standards in this
category may allow sources to choose among several clearly- defined
options, source-specific judgments are not required and the compliance
requirements are known at the time of promulgation. The EPA expects
few MACT standards will provide full compliance requirements at the
time of promulgation, and consequently there will be few type one
standards. A specific example of the first type of standard would be
the NESHAP for industrial process cooling towers. These requirements
apply existing well- documented control technology. Specific
compliance requirements, such as monitoring, recordkeeping and
reporting, are promulgated as part of the standard. While the source
may be allowed to select from several control options, each option was
subject to extensive public comment during the rulemaking establishing
the MACT standard. Thus, at the time of promulgation, all compliance
requirements (including options) for this type of standard are well
known. As explained below, incorporation of these as permit terms and
conditions should be accomplished in a one-step process using
streamlined procedures.
The type two category of MACT standards involves standards in
which only a compliance date and general performance specification are
known at the time of promulgation. Standards in the second category
contain options from which the source will choose and then generate
source-specific compliance requirements. Most MACT standards will
fall into this category. There are many examples of this category,
including standards for process vents or storage tanks under the
Hazardous Organic NESHAP (HON) for the synthetic organic chemical
manufacturing industry (SOCMI).
The type three category is similar to the type two category in
that the source develops compliance requirements after promulgation,
but the source also develops source-specific alternatives requiring
case-by-case approval by EPA or the permitting authority. This
category includes standards providing for emissions averaging and
alternative monitoring or recordkeeping, such as data compression
techniques. An example of this type would include the provisions in
the HON for emissions averaging.
As discussed below, for each type of standard, EPA proposes
different processes by which the MACT standard would be incorporated
into the permit. Because EPA expects most MACT standards will be type
two standards, it is proposing a process that would apply to that
type, except that where the source utilizes alternative requiring
case-by-case approval, such as emissions averaging, a variation to the
process is proposed. If the standard is a type one, EPA would exempt
the source from the need to apply for the second-round permit
revision. For standards promulgated by date of promulgation of the
final part 70 revisions, EPA would contain any exemptions in the final
part 70 rule. For future MACT standards, EPA intends to establish any
exemptions in the rulemaking for the individual MACT standard.
The following discussion illustrates mainly the second type of
standard, using the HON as an example. The HON applies to SOCMI
sources and to equipment leak sources at certain non-SOCMI facilities.
It requires compliance with equipment leak standards within 6 months
after promulgation for some process units, followed by subsequent
control of process units, storage tanks, and wastewater treatment
units. The following outline shows the scheduled events under the HON
(assuming no compliance extension has been granted under
section 112(i)(3)(B) of the Act).
4/21/94.--Date of promulgation or effective date, making the HON
an applicable requirement for all SOCMI sources and non-SOCMI
equipment leak sources.
10/94.--Equipment leak requirements begin to apply.
11/94.--Anticipated effective date of first State part 70 permit
program. Permit applications are due no later than 1 year after the
effective date of each program.
11/95.--Implementation plan due for points not included in an
emissions averaging compliance alternative, if the permit application
has not been submitted. If the application has been submitted, it
would contain the implementation plan and no separate submittal would
be required.
4/96.--Implementation plan due for non-emissions averaging.
4/97.--Compliance date--all controls and monitoring equipment
must be in place.
9/97.--Notification of Compliance Status (NCS) due for process
vents. This report establishes the parameters to be monitored and the
parameter ranges that will be used to indicate proper operation and
maintenance of the control device.
The second type of MACT standard is illustrated by the
requirements in the HON for the control of group 1 process vents
(group 1 vents are required to install control technology; group 2
vents may remain uncontrolled). In contrast to the standard for
chromium electroplating, specific monitoring and other compliance
requirements of the control technology are not fully known at the time
of promulgation, but will be determined individually for each source
after promulgation and before the compliance date (3 years after
promulgation, unless a compliance date extension is granted) on the
basis of performance testing. As part of the performance test, a
value for the previously selected parameter will be determined and
reported in a compliance statement due 6 months after the compliance
date. For example, the proper operation and maintenance of an
incinerator on a group 1 process vent will be demonstrated by
monitoring temperature and by operating the incinerator within a range
that indicates proper operation and maintenance of the control device.
For process vents, the specific compliance requirements are required
to be reported in the NCS, which is due 5 months after the compliance
date. Under today's proposal, permits issued just after promulgation
of the standard would include a statement that the process vent
requirements of the HON are applicable and a compliance schedule for
meeting those requirements, but need not contain specific compliance
requirements until those are reported in the NCS.
The HON also illustrates the third type of MACT standard, since
it contains options for sources to develop alternatives requiring
case-by-case approval, such as emissions averaging or data compression
techniques. Although prior approval of these alternatives is
required, the specific values needed to assure compliance with the
standard, including the alternative, would not be known until reported
in the NCS.
b. Proposed Approach. The Administrator believes that the
part 70 permitting process should enhance compliance with all
applicable requirements, including section 112 standards.
Requirements governing the content of the part 70 permit and the duty
to reopen it should therefore recognize and enhance compliance with
applicable MACT standards. The EPA must balance the goal of enhancing
compliance against the likely reality that large numbers of
section 112 standards (including in some cases multiple standards for
different units in the same facility) will need incorporation into
part 70 permits, and that a large number of permit reopenings could be
involved. In striking this balance, several questions are apparent;
the key question being when must the permit reflect the MACT standard
and how should the terms and conditions necessary to enforce it be
incorporated into the permit? Other questions involve whether and to
what extent compliance with the MACT standard will require a part 70
permit revision before the source can make changes in control
equipment or monitoring necessary to comply with the standard. This
proposal attempts to answer these and other questions about how
requirements should be established in its part 70 permit in order to
comply with new section 112 requirements.
Where a new standard is promulgated after the permit has been
issued, section 502(b)(9) requires that permits for major sources with
more than 3 years remaining before expiration must be reopened to
incorporate the standard within 18 months after promulgation of the
standard. The Act also provides some specific guidance on the process
for reopening the permit within the 18-month period.
Section 502(b)(9) requires that reopenings be expeditious and
consistent with procedures established under section 502(b)(6). Thus,
the mandate in section 502(b)(6) for adequate, streamlined, and
reasonable procedures for expeditious review of permit actions applies
to reopenings as well as permit revisions, and includes the
incorporation of new standards.
As described in more detail below, the Administrator proposes to
adapt the proposed four-track permit revision system to facilitate the
expeditious incorporation of MACT standards, rather than create new
procedures explicitly for MACT standards. Additional permit revision
tracks specifically to address incorporation of MACT standards would
unnecessarily complicate an already complicated system. Moreover, the
Agency sees no reason to distinguish the need to revise a permit
expeditiously to comply with a MACT standard from the need to revise
it expeditiously for other reasons previously discussed, such as
source-originated changes to respond to market conditions.
Section 70.7(f)(2) of the current rule requires any reopening to
incorporate new applicable requirements to follow permit issuance
procedures. Section 502(b)(9) of the Act, however, does not
specifically require this level of process in all cases, but rather
refers to section 502(b)(6), which itself addresses both permit
issuance and permit revisions. The EPA therefore believes it has
discretion under the Act to provide for more expedited reopening
procedures where appropriate. The section 112 standard-setting
process has evolved considerably since promulgation of the current
section 70.7(f)(2). Today's proposal to modify this part 70
requirement is prompted by an enhanced understanding of the
section 112 program, both with respect to the characteristics of
section 112 standards, and with respect to the administrative burden
posed by the need to incorporate the many new Federal standards that
will become applicable over the next several years.
Selection of a particular permit revision track to incorporate a
MACT standard will depend on the extent to which the standard
establishes how compliance by an individual source will be determined
(i.e., whether it is type one) and on whether the MACT standard has
been promulgated at the time of permit issuance. Generally three
situations will arise where the permit must be issued, revised, or
reopened to incorporate a MACT standard. The first is where the
promulgation of the MACT standard precedes initial issuance of the
permit. In this situation, the permit generally must incorporate the
standard as an applicable requirement upon issuance. The second
situation arises where the permit is issued and is followed by the
promulgation of a standard. In this case, the permit must be revised
or reopened to incorporate the standard, if the source is major and
more than 3 years remains before permit expiration, or the new
standard may be incorporated into the permit at renewal. The third
involves a source that is not subject to the standard until it makes a
change that causes it to be covered by the standard. The process for
incorporating standards into permits for each of these situations is
discussed for each situation in detail below.
(i). MACT Incorporation Upon Initial Permit Issuance. Where the
effective date of the newly promulgated standard would coincide with
or precede the initial issuance of a part 70 permit, the permitting
authority would be required in most cases to place the standard in the
permit upon issuance. If the source has filed a complete part 70
permit application before the standard is promulgated, the standard
would be added to the permit, based on additional information supplied
by the source. The proposal allows an exception where 90 days has
passed since the close of the public comment period, in which case,
the permit, after initially issuing, would be reopened to incorporate
the standard within 18 months of promulgation of the standard (see
section IV.F.1. of this preamble for further details).
If the standard is self-implementing (i.e., type one), the
permitting authority will incorporate permit terms implementing the
standard directly into the permit upon issuance. Standards of this
type would not require a subsequent permit revision to include more
specific compliance data, since all requirements needed to meet the
standard (including all emissions standards or percent reduction
requirements, compliance deadlines, testing and monitoring,
recordkeeping and reporting requirements) are set forth in the
standard itself and can be incorporated into the permit at issuance.
Any of these requirements having future effective dates would be
included in the permit as part of the compliance schedule required
under section 70.6(c)(3).
Standards that are not self-implementing (i.e., type two or type
three) would require a two-step process. In the first step, the
permit would be issued to include (1) a statement that the standard is
an applicable requirement, (2) a compliance schedule (including
milestones) for meeting the standard, (3) a requirement to submit any
implementation plan or reports required under the MACT standard, and
(4) a requirement to apply, by the deadline for the compliance
statement, for a minor permit revision or significant permit revision,
whichever is indicated in the MACT rulemaking (unless the compliance
statement is due within 6 months of the expiration date of the permit,
in which case, the application referred to above could be submitted
with the application for permit renewal). The MACT rulemaking would
indicate any compliance schedule milestones and any additional
conditions to be placed into the permit.
As a federally-enforceable condition of the permit, the
compliance schedule would require the source to take all interim and
final actions required to demonstrate compliance with the applicable
standard. A typical compliance schedule would include a schedule for
submission of the initial notice, the implementation plan, and the
compliance statement or NCS. Nothing in the compliance schedule, of
course, may relieve a source from compliance with the underlying MACT
standard.
The EPA proposes that all information required to be submitted by
the permittee would be promptly placed by the permitting authority in
a docket maintained for that source and made accessible to the public.
The details of a source's compliance strategy, such as those contained
in the HON implementation plan, would therefore remain outside the
permit until the second revision, but would be publicly available
through the docket. The compliance schedule would provide enforceable
protection against late or inadequate action by the source in meeting
MACT deadlines (in addition to enforcement powers under the standard
itself), but the permit would not need to be revised if, up to the
compliance statement deadline, the source wanted to change details in
its initial compliance strategy, provided the change did not affect
interim compliance milestones in the permit. The public would have
access to information subsequently placed in the docket, but would not
have an opportunity to comment formally on its content until the
second reopening. The Administrator solicits comment on this approach
and, in particular, whether it needs to require information, such as
the implementation plan, to be placed in a public docket.
The second step of the process would begin at the compliance
statement deadline with the application for the appropriate
second-round permit revision. The EPA proposes that in most cases,
the permit would be revised using the minor permit revision process
proposed in section 70.7(g). A source subject to the HON, for
example, would apply for the second step revision at the due date for
the NCS (e.g., 5 months after the compliance date for process vents).
At this time all remaining permit terms necessary to implement the
applicable standard would be placed into the permit, including final
decisions of unit applicability, monitoring requirements, and
compliance terms based on performance test results.
For the third type of standard involving alternatives requiring
case-by- case approval, such as emissions averaging or non-automatic
monitoring or reporting (e.g., data compression), EPA proposes that
the second step revision would occur using the significant permit
revision process. The EPA believes this process would afford the
public sufficient additional time in which to review the adequacy of
proposed alternatives.
The proposed use of the minor permit revision track for the
second step is appropriate for type two standards, where final
compliance or monitoring requirements will not be known until the NCS
is due. During development of these standards, EPA with public review
has selected and approved the choices available to the sources with
respect to control strategies and monitoring. Sources then select
among these options and, in applying and testing these approved
techniques for individual units, identify specific parameters and
corresponding values. The EPA believes the results of this selection
process should not require a lengthy review procedure, and the minor
permit revision process should be adequate to review the application
of the previously- approved options to the source. In contrast, under
the type three standards, a source would develop source-specific
alternatives that require case-by-case approval, such as emissions
averaging, entirely within the permit process with no prior public
review. In EPA's view, the development of alternatives such as
emissions averaging, and the compliance terms necessary to implement
them warrants the significant permit revision track. However,
considering that the public will have the opportunity to comment on
these alternatives during rulemaking promulgating each MACT standard,
the Agency solicits comment on whether the additional public review
under the significant permit revision process (compared to the minor
permit revision process) would be necessary. The EPA in particular
solicits comment on whether such additional public comment is
necessary for alternatives involving nonautomatic data collection or
recordkeeping (such as data compression), compared to those involving
emissions averaging.
With two exceptions, EPA proposes that the source would apply for
the second-step of the permit revision by the time it must report
compliance with the applicable standard (e.g., for the HON, the source
would apply when the NCS is due). The application must meet
requirements in the permitting authority's program for complete
applications, including those proposed at section 70.7(g)(2). Waiting
until the compliance statement (or NCS) due date for a complete
application is appropriate because this is when the source would first
report the compliance information needed to establish enforceable
part 70 permit conditions. The EPA believes that requiring complete
applications any sooner could result in substantially more permit
revisions as the detailed compliance requirements might change before
the compliance deadline.
The first exception to the proposal described above would be
where the compliance statement date occurs within 6 months of permit
renewal (i.e., the end of the permit term). In this case, EPA
proposes that the source could submit its application for the second
step revision along with its application for permit renewal. The
second exception is where terms of an existing part 70 permit would
not allow the source to make changes necessary to comply with the MACT
standard. In this case, the permit must be revised before operating
the change, in order to comply with section 502(a), which requires
that a source with a part 70 permit may operate only in compliance
with its permit.
The permit shield would not be available for any administrative
amendment under this process, but would be available for type two and
type three standards upon issuance of the second-step permit revision
containing the detailed compliance requirements. The EPA believes the
permit shield should not be available for the initial permit in a
two-step process, because the source will be subject to the
substantive requirements of the MACT standard before the second-step
permit revision is completed to incorporate the substantive compliance
terms necessary to implement the standard. If enforcement action
needed to be taken against a source that had not yet completed its
performance tests, a permit shield could interfere with such action,
since the permit would not yet contain the compliance requirements
necessary to enforce the standard. The Agency solicits comment,
however, on whether the permit shield should be available, with regard
to the applicability determination only, for the second type of
standard upon initial issuance of the permit.
(ii). MACT Incorporation Through Reopening. Mandatory
Reopening. Where a permit has been issued prior to the promulgation
of a MACT standard, section 502(b)(9) and current section 70.7(f)
require reopening of a permit for a major source if 3 or more years
remain before it is due to expire. For reopenings to incorporate new
standards, EPA proposes to use essentially the same process described
above for initial permit issuance, but with some modifications (see
proposed revisions at section 70.7(e) (1)(vii) and (4), and
section 70.7(i) (2) and (3)). For type one standards, the permit
would be reopened by the permitting authority in a one-step process to
incorporate the new standard and all permit terms necessary to
implement the standard, including a schedule for achieving compliance
with the standard by the applicable deadline. Instead of using the
full permit issuance procedures, however, the EPA proposes to revise
current section 70.7(f) to allow use of the administrative amendment
procedures for one-step reopenings. The EPA believes this process is
appropriate because for these types of standards, the applicability is
well known (typically based on information supplied by the source in
its initial notice) and the standard prescribes the compliance terms
applicable to the source. Sources would, of course, have the option
of contesting any terms established in the permit within the time
limits provided by the permitting authority for judicial review (see
section 70.4(b)(3)(xii)).
For the second and third type standards, the permit would be
reopened using a two-step process. The initial revision would be made
using the same administrative amendment process just described for the
one-step process. For the second revision, EPA would allow the use of
the minor permit revision procedures, except for type three standards
involving alternatives requiring case-by-case approval, such as
emissions averaging, in which case EPA would require the significant
permit revision process.
The initial reopening and revision, using administrative
amendment procedures, would contain (1) a statement that the new
standard is an applicable requirement, (2) a schedule (with
milestones) for achieving compliance with the standard by the
applicable compliance date, (3) a requirement to submit any
implementation plan or report required under the MACT standard, and
(4) a requirement to apply, by the deadline for the compliance
statement, for a minor permit revision (or a significant permit
revision if alternatives requiring case-by-case approval are being
used). If, however, the compliance statement is due within 6 months
of the expiration date of the permit, the application for the minor or
significant permit revision could be submitted with the application
for permit renewal. The MACT rulemaking would indicate any additional
compliance schedule milestones or other conditions to be incorporated
into the permit.
For all MACT standards, EPA proposes to revise existing
section 70.7(e) to provide (but not require) that the permitting
authority may begin the administrative amendment process on the date
on which the initial notice is due under the MACT standard. Under the
HON, for example, the initial notice is due 120 days after
promulgation.
If EPA receives the initial notification because the MACT
standard has not yet been delegated to the State or local agency, EPA
will send the notice to the permitting authority, and upon receipt of
that notice, the permitting authority could begin processing the
administrative amendment. In many cases, permitting authorities could
have taken automatic delegation of MACT standards (or at least the
responsibility for receiving the initial notification) under an
approved 112(l) program. Even where delegation of an individual MACT
standard is needed and the process to accomplish it is lengthy, EPA
assumes that permitting authorities will not be prohibited from
incorporating the compliance schedule and other brief conditions
described above into the permit as an administrative amendment within
18 months after promulgation of the standard. Nonetheless, the Agency
solicits comment on whether the proposed processes may be adversely
affected by a State or local agency's need to obtain prior delegation.
The EPA also proposes to revise part 70 to provide that the
permitting authority could waive the requirement in section 70.7(f)(3)
for a 30-day reopening notice to any source that had submitted the
initial notice. If a source that the permitting authority believes is
subject to the standard fails to submit an initial notice by the due
date under the MACT standard, the permitting authority would send it a
30-day notice of its intent to reopen the source's permit as now
provided under section 70.7(f)(3). This notice would also contain the
permit conditions that the permitting authority would incorporate into
the permit upon reopening. The permitting authority would then
initiate an administrative amendment to the source's permit, unless
the source convinces the permitting authority that it is not subject
to the standard. Administrative amendments would need to be effective
by 18 months after promulgation of the MACT standard in order to
comply with section 502(b)(9).
To ensure that reopening takes place for all sources subject to
the standard, EPA proposes that the permitting authority would be
required to publish a public notice listing all sources who had
submitted an initial notice and whose permits had been reopened. The
notice would also list any sources that had objected to an initial
notification from the permitting authority. The EPA proposes to
require permitting authorities to provide a 30-day period for the
public to comment on the adequacy of the list and whether they believe
any other sources are subject to the standard and should be listed.
The EPA proposes that permitting authorities would start the 30- day
period at such a time as to allow for completion of any additional
reopenings within 18 months after promulgation of the section 112
standard, as required in section 502(b)(9). If the permitting
authority determines that the permit for an unlisted source should be
reopened, the permitting authority would provide a 30-day notice to
the source (as in the case of sources failing to submit an initial
notice), followed by administrative amendment of the permit. Any
failure by the permitting authority to respond to public comments or a
decision not to heed public comments would be judicially reviewable in
State court.
As described previously, the permit shield would not be available
for any administratively-amended permit due to lack of full review
during the administrative amendment process. At the option of the
permitting authority, this shield could be given to a source after
completion of the subsequent revision using either the minor permit
revision or significant permit revision process, as appropriate. The
EPA points out that a permitting authority would also have the option
of requiring sources to use the minor permit revision process if they
want the permit shield for a type two or type three standard, or if
they want to seek an extension of the compliance deadline under
section 112(i)(3)(B) of the Act.
Under the process just described, the permitting authority would
supply the revised permit terms that would be incorporated into the
permit in the administrative amendment process. The EPA solicits
comment, however, on whether it should also allow the permitting
authority to require the source to submit an application for
administrative amendment. This could potentially free the permitting
authority from the need to develop numerous permit amendments (even
though the contents would be similar if not identical to each other).
However, it would likely be less efficient and could still require
considerable processing by the permitting authority before reopening
of the permit could begin.
Discretionary Reopening. If a part 70 permit has less than 3
years left on its term when a new standard is promulgated, the permit
is not required to be reopened (see section 502(b)(9) and proposed
section 70.7(i)). The permitting authority could choose to reopen the
permit using the processes described in the preceding section, or it
could wait until renewal to revise the permit to incorporate the new
standard (using the same procedures as initial permit issuance). If
it chose to wait until renewal, a two-step process would likely be
required for type two MACT standards, since in most cases, the
compliance statement date would occur after the deadline for the
renewal application, and the substantive compliance requirements would
not be available in time for the renewal application. As before, EPA
proposes that the second-round revision would be processed as a minor
permit revision, unless alternative compliance methods such as
emissions averaging are involved, in which case the significant permit
revision process would be used.
Two situations, however, may require the prior revision to the
permit and would not allow the permitting authority to wait until
renewal. The first situation is where the operation of a control
strategy or monitoring technique is blocked by the current terms of
the permit. For example, monitoring conditions in a part 70 permit
for an existing incinerator may need to be revised before an affected
unit subject to a new MACT standard can be ducted into the existing
incinerator. Some of these situations can be quite complicated and
can even require relief from current monitoring conditions in order to
perform tests necessary to develop new ones. As discussed elsewhere
(see section III. E.9., Alternative Option for Monitoring Changes),
the Administrator proposes that the minor permit revision process
generally would allow adequate review of this situation.
The second situation involves the commonplace need to obtain
preconstruction approval under a State or local minor NSR program.
New control devices cannot usually be installed without a State or
local NSR permit, especially where emissions of criteria pollutants
are likely to increase as a result of adding the control device. This
is often true for incinerators, which increase NOX and CO, while
decreasing HAP's and VOC. As previously discussed, today's proposal
offers several options for either merging a minor NSR permit and
part 70 permit into one process or processing the minor NSR permit in
a subsequent, expeditious part 70 permit revision. In addition, EPA
has also solicited comment elsewhere in today's notice on whether
increases that do not violate exiting permit terms and conditions
could be eligible for off-permit procedures. Under this approach, a
source would have up to 6 months to apply for a permit revision (see
section III. B. of this preamble).
(iii). Source Changes That Trigger New or Additional MACT
Requirements. Once a source's permit has been issued to assure
compliance with any existing MACT standards, several types of changes
may occur that trigger new or additional requirements. Even if a
source's permit has been issued or reopened to incorporate a new MACT
standard, the source may make changes that render it subject to other
provisions of the MACT standard that are not included in the permit,
or that do not currently apply to that unit in the permit. These
requirements must be incorporated into the permit for the appropriate
units.
One type of change is where an existing unit, as a result of a
change at the source, becomes subject to a MACT requirement already
promulgated. Since this case involves a source becoming subject to a
promulgated standard as a result of a change it makes, revision of the
permit, rather than reopening, is required. As a result, the source
would have to submit a complete application prior to operating the
change (unless it would be eligible for off-permit processing). As
described previously for reopenings to incorporate MACT standards
promulgated after permit issuance, the initial revision could be
processed as an administrative amendment. This procedure would be
appropriate where the source becomes subject to a standard due to a
change at the source where the change either triggers a type one MACT
standard, or triggers a type two or three standard prior to the
deadline for submittal of the NCS. Where the source triggers a type
two or three standard after the NCS is due, the standard would have to
be incorporated through a minor permit revision or significant permit
revision, respectively.
An example of this is a situation where a group two
(uncontrolled) process vent subject to the HON becomes a group one
unit (subject to MACT) by increasing its throughput. This could
occur, for example, because a criteria for group one units is flow
rate, and increasing the throughput could cause an increase in flow
rate and trigger the group one requirements. The HON requires that
sources use their periodic reports to propose how and when points that
change their status (i.e., group one to group two) will be controlled.
Another type of change would occur where a source subject to a
MACT standard switches from one control technique to another type,
both of which are allowed by the standard. For example, a source
subject to and in compliance with the HON may switch from incineration
to a different technique approved as pollution prevention, say, to
reduce NOx emissions. The switch would require a different set of
compliance monitoring provisions that would need to be incorporated
into the permit. If the switch could be made without violating the
existing permit, and there would not be a net emissions increase, the
EPA believes the source would be eligible for off-permit procedures,
and could defer applying for a permit revision until 6 months after
operation. Since the subsequent permit revision process would address
detailed compliance terms within a generally approved control
strategy, EPA believes that the minor permit revision process would be
appropriate as the subsequent revision process.
Generally, new or reconstructed units must meet more stringent
MACT requirements than existing units and must comply upon startup.
(Under the HON, for example, requirements that apply to new units are
different from those that apply to reconstructed units.) It is also
likely that most new or reconstructed units will be subject to State
or local minor or major NSR. The Administrator again proposes that
minor and major NSR permits, provided they are enhanced to meet
part 70 requirements, are acceptable forums for addressing and
establishing part 70 permit conditions needed to assure compliance
with MACT standards. Thus, the merged preconstruction review process
applying to minor NSR permits would also revise the part 70 permit to
incorporate the MACT requirements applicable to the source.
If the NSR process were merged, the MACT incorporation could be
processed under merged NSR/part 70 administrative amendment
procedures. To the extent that compliance monitoring requirements are
not known when the merged permit is issued, a subsequent minor permit
revision would be needed to incorporate those requirements once they
are determined, unless the source needs to make complex judgments such
as emissions averaging, in which case a subsequent significant permit
revision would be needed. If the NSR action were not merged, the
part 70 revision would be eligible under the minor permit revision
procedures, or if it met the criteria, eligible under de minimis
permit revision procedures.
Some source changes may trigger the requirements of
section 112(g), instead of triggering requirements of the MACT
standard. For example, a source with some units to which a MACT
standard applies may have other units for which there is no MACT
standard and if these non-MACT units are modified, they would become
subject to section 112(g) requirements. The EPA has proposed rules to
implement section 112(g) at 59 FR 15504 (April 1, 1994). The question
of whether and to what extent the procedural requirements of
section 112(g) will apply after the promulgation of a MACT standard
will be addressed in the final section 112(g) rule.
c. Solicitation of Additional Comment. The Administrator
solicits comment on the appropriate processes for incorporating new
standards and solicits information regarding any types of changes
other than those described above that would require a permit revision
after the relevant standard has been incorporated into the permit. As
stated earlier with respect to the proposed four-track permit revision
system, the EPA is particularly interested in suggestions that would
improve or simplify the implementation of the proposed approaches,
provided they are consistent with the requirements of the Act and the
implementation principles described earlier.
The EPA also solicits comment on the extent to which the proposed
processes for incorporating MACT standards should be made available
for other standards or requirements, either nationally promulgated or
adopted by State or local agencies and approved by EPA into SIP's.
While EPA does not believe that the proposed processes would be
appropriate for source-specific control requirements such as BACT or
LAER established in a major NSR process, source- specific RACT, or
case-by-case MACT under section 112(g), the Agency is willing to
consider comments regarding application of the proposed processes to
these requirements.
In particular, the Agency solicits comment on whether today's
proposal regarding incorporation of MACT standards would also apply to
requirements for RACT. These are applicable requirements for part 70
permits in ozone nonattainment areas and transport regions, and over
the next several years, State and local agencies will be adopting new
RACT requirements as revisions to their SIP's. The EPA believes that,
because these requirements will have undergone public review at the
State, local, and Federal level, and EPA review prior to adoption into
the SIP, use of the same processes as described above for MACT
incorporation should be adequate. The EPA solicits comment, however,
on whether the proposed processes are appropriate for RACT
incorporation and any specific modifications that would be needed to
adapt the processes to RACT requirements.
The Agency also solicits comments on whether the proposed
processes described above for MACT incorporation would be appropriate
for NSPS. Since these standards apply exclusively to new sources and
reconstructed existing sources, they will generally be processed under
State or local NSR programs, although some agencies exempt source
changes subject only to NSPS unless they are associated with an
emissions increase. If an agency does apply NSR to these sources, EPA
believes the proposed processes for MACT incorporation may be
unnecessary, because the agency could already provide for processing
under the four-track system (e.g., administrative amendment procedures
would be available for merged NSR actions). For permitting
authorities that exempt NSPS sources from NSR, however, EPA believes
the proposed processes may be useful and solicits comment on how they
should be applied to NSPS.
10. Alternative Option for Monitoring Changes
a. Overview. Operating permits serve two functions with respect
to compliance monitoring. One function is to consolidate and
reiterate the testing, monitoring, and recordkeeping provisions
required by the underlying applicable requirements. The other
function is to allow approval of equivalent or improved monitoring or
recordkeeping methods. This latter function is served through the
application of enhanced monitoring or the application of the periodic
monitoring provisions as set forth in section 70.6(a)(3)(i)(B).
Where enhanced monitoring or periodic monitoring applies, it is
implemented through the operating permit. Therefore, any changes to
enhanced monitoring protocols, or periodic monitoring methods, would
occur pursuant to a revision to the source's part 70 permit. Where
the proposed change to monitoring is not part of enhanced or periodic
monitoring, but originates from an underlying applicable requirement
in the SIP, NSPS, or NESHAP, additional process beyond a part 70
revision may be required. For example, approval of an alternative
NSPS or NESHAP monitoring method currently requires the review and
concurrence of EPA Headquarters. Likewise, in order to provide a
change to the SIP monitoring requirement, the SIP must be structured
to "allow" alternatives to be developed in the part 70 process (see
70.6(a)(1)(iii)). Thus the SIP must contain language that enables the
permit to provide for alternatives that are "at least as stringent as"
existing requirements, and to provide sufficiently specific criteria
to make that determination (i.e., the part 64 requirements).
The EPA recognizes that modifications in source operation may
affect or alter the method by which a source monitors compliance.
Such monitoring changes may range from a simple re-calibration of the
existing monitoring devices, to a request for an entirely new
monitoring method. The current part 70 provides that any
"significant" change in monitoring must be processed as a significant
permit modification. The regulation does not define the term
significant, beyond identifying a "relaxation" in reporting or
recordkeeping terms and conditions as significant, leaving further
distinctions to be defined through guidance and case-by-case analysis.
The only changes in monitoring that are clearly identified in part 70
as appropriate for a lesser level of review are increases in
monitoring and reporting frequency, which may be implemented through
an administrative permit amendment.
Under the proposed four track permit revision system developed
during settlement discussions with the part 70 rule litigants, the
test for determining whether a change to existing monitoring permit
terms or conditions is significant would still be relatively
undefined, and continue to be based largely on whether the change
represented a relaxation of reporting or recordkeeping permit terms or
conditions. While the proposed four track system does provide further
specifics regarding what types of monitoring changes would be eligible
for de minimis permit revision or minor permit revision procedures,
EPA is concerned that the proposal may overly rely on the
"significance" test described above, and that the tests for
eligibility for de minimis and minor permit revisions could both be
very difficult for permitting authorities to implement and might not
take into account the particular considerations associated with
monitoring changes.
For example, the proposed de minimis criteria would allow any
monitoring change, no matter how significant, that is associated with
a change that otherwise qualifies as a unit-based de minimis change,
to be incorporated through de minimis procedures. However, the
proposed increment based criteria could exclude from eligibility minor
changes to monitoring that States currently routinely process with
little EPA oversight. Moreover, the proposed criteria for minor
permit revision eligibility would allow any monitoring change, no
matter how significant and whether or not the permitting authority had
prior opportunity to review the change, to be processed as a minor
permit revision if it was necessary to implement any other change that
was otherwise eligible. Finally, both the proposed de minimis and
minor permit revision criteria would exclude from eligibility changes
involving limits that had been established as federally enforceable
only through part 70 procedures, thus potentially requiring all
changes to enhanced or periodic monitoring protocols, no matter how
minor, to be processed as significant permit revisions. The EPA notes
that these criteria might be perceived as in conflict, and could
consequently pose substantial difficulties for permit authority
application of them.
The EPA now believes that the treatment of virtually all
monitoring changes as significant permit modifications under the
current rule could be inconsistent with the goal of providing
expeditious, streamlined, and adequate review pursuant of permit
revisions. Moreover, while the four track permit revision system that
EPA developed in the context of settlement discussions with the
part 70 litigants provides some flexibility for many types of changes
requiring permit revisions, EPA is concerned that this flexibility
could be limited if permitting authorities find it too difficult to
apply the eligibility criteria and associated changes to the existing
monitoring methods are required to undergo greater review than the
associated physical or operational changes. This is particularly true
in light of the proposed coverage for part 64 and consequent greater
potential for changes in monitoring approaches and related compliance
terms. Consequently, to avoid this problem, EPA also proposes as an
option alternative provisions governing changes involving monitoring
requirements that recognize the need for certain types of changes to
existing monitoring methods to undergo more expedited review through
an appropriate permit revision track, obviating the need to rely on
the term "significant" in the existing part 70 regulations to
determine what changes must be processed as significant permit
revisions. In structuring the review for changes to monitoring or
recordkeeping requirements under this option, EPA has essentially
adhered to the four-track system proposed today. However, to
implement the alternative option, certain provisions in the current
proposed tracks would need to be modified, since they were developed
in the context of the litigation settlement discussions prior to EPA's
more specific treatment of the monitoring issue.
The EPA wishes to stress that this alternative option was
developed internally, after settlement discussions had concluded on
the flexibility issues. However, the litigants had been apprised that
EPA would continue to work on the monitoring issue after the
settlement discussions, and that the Agency would offer additional
provisions regarding monitoring changes in this proposal. In some
aspects, the alternative option conflicts with particular provisions
of the proposed four track permit revision system, and revisions to
the proposed system would be required to integrate it with the
alternative option discussed below. The EPA believes that such
integration is viable, could result in a permit revision system that
better provides for appropriate permit revision procedures for
monitoring changes, and would better avoid rendering changes that
otherwise would qualify for expedited process from being rendered
ineligible due to the associated monitoring changes.
The EPA believes that changes in monitoring must undergo
sufficient review to ensure that any method continues to be
representative of compliance and capable of identifying deviations
consistent with the requirements for enhanced monitoring and periodic
monitoring. A monitoring method that is unable to identify deviations
from emission standards fails to have the ability to assure
compliance. Such a result would be in conflict with the obligation
under section 504(c) of the Act to issue permits that set forth
monitoring provisions that assure compliance with all permit terms and
conditions, and would not allow for the identification of permit
violations necessary to implement section 502(a) regarding the
unlawful operation of sources in violation of the permit.
The proposed alternative option regarding changes in the
monitoring method contained in the existing part 70 permit is intended
to better enable such changes to take advantage of the four-track
streamlined permit revision system also proposed today. This option
notably does not address the process for sources to comply initially
with part 64 and periodic monitoring. The EPA believes that the level
of review required by a significant permit revision under the proposed
four-track system may not be necessary for all changes to an existing
monitoring method, and that certain types of monitoring changes should
be able to take advantage of the expedited review provided in the
other three permit revision tracks. The option discussed below is
intended to better match the review process in the previously
discussed permit revision tracks to the scope, nature, and
environmental significance of the requested monitoring change.
The alternative option also introduces the concept of using the
criteria proposed in 40 CFR part 64, section 64.4(b)(5) and (c),
appendices A through D, as the basis for evaluating the equivalency of
proposed changes to the monitoring method in the permit. The EPA
believes that the use of standardized criteria should provide
nationwide consistency with respect to decisions regarding the
adequacy of monitoring changes, thereby lessening the need for close
EPA oversight of certain changes. Moreover, the use of such criteria
would distinguish between changes that do, and do not, affect
measurement of emissions and facilitate equivalency determinations for
new or alternative methods.
The EPA solicits comment on whether the review of all changes to
monitoring and recordkeeping provisions should be based on
standardized criteria, namely part 64 appendices A, B, C, and D.
Furthermore, comment is solicited on whether the use of such criteria
would enable re-delegation of authority in the NSPS and NESHAP
programs such that review and approval of these alternatives could be
handled solely through an operating permit revision, even for those
monitoring provisions which are required by the underlying regulation
(i.e., are not also part of an enhanced monitoring or periodic
monitoring requirement).
b. Background--Distinction Between Testing, Monitoring, and
Recordkeeping. To frame the following discussion, EPA would first
like to clarify the distinction between testing, monitoring, and
recordkeeping methods. The terms testing, monitoring, and
recordkeeping are widely used, and have a variety of meanings. A
common understanding of how EPA proposes to use these terms is
essential to understanding the appropriate review process discussed in
this option for changes in monitoring and recordkeeping.
(i) Compliance Test Methods. Development of a test method is a
controlled experiment whereby all interferents are evaluated or
controlled in order to obtain a "true" measurement of the pollutant of
interest, on a consistent and reliable basis. The Agency has
established a review process for changes to the compliance test
method. Specifically, for the NSPS, NESHAP, and SIP programs, EPA has
considered test method changes as either minor or major changes. The
distinction between minor and major changes is based on whether the
change affects the measured emission results relative to the
compliance limit and the uniqueness of the application. Major changes
require extensive technical review to assess the effects on the
emission measurement or compliance determination. An example of a
major change in method would be a change from wet chemistry titration
to an ultra-violet instrument for the measurement of SO2.
The promulgation of method 301, 40 CFR part 63, appendix A,
provides the basic criteria to evaluate a major change in test method.
A proposed alternative test method which meets the criteria in method
301 is considered substantially equivalent to the existing method, and
is an acceptable change.
(ii) Compliance Monitoring Methods. Compliance monitoring has
traditionally been used in the air program as a supplement to the test
method, to provide a basis for identifying proper operation and
maintenance of control devices, and as an indication of compliance
status and in some cases as a compliance determination method. In the
past, however, EPA policy and regulations resulted in primary EPA
reliance on the test method to provide the initial evidence of a
violation.
To ensure compliance with permit terms and conditions, and to
provide for the annual compliance certifications required by title V,
proof of compliance is necessary on a more frequent basis than upon
source start-up, as traditionally required. Frequent use of the test
method may be a costly means of obtaining such compliance information.
Therefore, sources, EPA, and the permitting authority may be using
monitoring data for directly determining compliance with emission
standards.
The acceptability of a monitoring method as direct proof of
compliance with an emission standard is determined, in part, by
correlating measurements from the proposed monitoring method to the
emission standard as measured by the test method. Through the
operating permit, a monitoring method may be proposed, demonstrated,
evaluated, and accepted, as the means of determining compliance with
the emission standard for an individual source. Where the permit
relies on monitoring for compliance certifications, the monitoring
method remains as the applicable compliance-determining method for
that source, until such time as the permit revises or rescinds that
method.
The EPA believes that not all changes in monitoring methods need
to be considered as significant changes. The monitoring provisions of
part 70, part 64, and part 60 do not establish the standard but
instead provide and require a method to measure the standard that has
already been established through the test method. Therefore, changes
to the monitoring method do not change the standard or its stringency.
Monitoring changes only affect the ability of the monitoring method to
read the standard. It is essential, however, to evaluate the ability
of the requested monitoring method to monitor compliance.
Consequently, the performance specifications of 40 CFR part 60
and proposed part 64 identify criteria for the evaluation and
acceptance of direct emission monitoring methods, predictive parameter
monitoring methods, and parameter methods whether they are continuous
or periodic. Quality assurance procedures are required to assure that
the monitoring methods maintain the original qualifications of
performance. The ability of the method to determine whether
deviations are occurring must be established. While changes may
affect the method's ability to read whether a deviation has occurred,
the redemonstration under part 60 and part 64, in addition to quality
assurance procedures, continues to define and assess the method's
ability to monitor the appropriate standard.
(iii) Recordkeeping. Recordkeeping is traditionally viewed as
the manual or automated permanent documentation on paper or computer
file of operating parameters or emissions, as related to the emission
standard. Where work practices are employed, recordkeeping serves as
the principal means of documenting compliance with the standards.
Where monitoring hardware is used to monitor compliance, recording
data from such monitors is an essential and integral part of the
monitoring system. Where compliance is determined through a series of
calculations alone, such as where complying coatings are used to meet
a VOC standard, recordkeeping may be used as the test method.
Recordkeeping may therefore be the sole means of monitoring
compliance, may be a necessary supplement to compliance monitoring, or
may be used directly to determine compliance. Thus, recordkeeping can
serve the function of compliance testing data or compliance monitoring
data. For purposes of the following discussion recordkeeping is
assumed to be included in the term monitoring, even though
recordkeeping may not be specifically mentioned.
c. Proposed Alternative Option for Treatment of Changes in
Monitoring. The acceptability of changes in monitoring depends upon
the demonstrated ability of the requested monitoring method to
represent compliance accurately and identify deviations from permit
terms and conditions. To the extent such demonstrations prove to be
straightforward and uncomplicated, EPA believes that limited Agency
review and oversight of monitoring changes may be needed. The EPA
believes that changes to existing monitoring can be grouped into four
levels that necessitate differing degrees of review and oversight.
The Agency solicits comment on whether these four levels of monitoring
changes are appropriate distinctions under the proposed permit
revision tracks, balancing the need to provide oversight of compliance
methods and the need to provide relief from the existing part 70
requirement that many changes in monitoring be processed under the
current significant permit modification track. The EPA is generally
taking comment on the need to increase or decrease the flexibility for
monitoring or recordkeeping changes as proposed today in the four
permit revision tracks.
Under the option discussed below, EPA is proposing the use of
standardized criteria set forth in the proposed part 64 (58 FR 54648
(October 22, 1993)) for the evaluation of these monitoring changes.
The proposed procedures in part 64 would provide quantification of the
effects of changes to the monitoring method. The procedures and
directions of proposed part 64 would be an extension of the
Performance Specifications of part 60, appendix B, which require
monitoring methods to meet certain accuracy and precision requirements
(e.g., 20 percent relative accuracy). Proposed part 64 would provide
broader application to all monitoring methods to ensure a level of
correlation to the standard that is acceptable in assessing
compliance. As a result, proposed part 64 would allow for the use of
simple parameters, such as temperature, as a means of assuring
compliance with the standard.
Under proposed section 64.7(b)(2), a source would be required to
identify whether the physical or operational characteristics of the
emission unit affect the performance of the monitoring protocol. The
proposed rules also rely on the source to answer and demonstrate
whether the monitoring change or alternative requested affects and
satisfies the performance requirements of appendices A and B of part
64, and whether the change or alternative provides the same degree of
confidence and reliability as demonstrated by the existing monitoring
method, as set forth in appendices A through D. These investigations
as conducted by the source and assessed by the permitting authority
would provide the basis on which the acceptability of the requested
method or change could be evaluated.
The following discussion provides explanations and examples of
the types of changes in monitoring which may be appropriate for each
of the four proposed permit revision tracks. Note that EPA believes
that the use of the permit revision tracks is appropriate whether the
change in a compliance monitoring method is driven by a need to
implement a physical or operational change at the source, or solely by
a desire to implement a different monitoring method. Some changes to
monitoring will have little or no effect on the measured emission
results, and will simply enhance the ability of the method to measure
emissions accurately. For these changes, EPA believes a lesser level
of review is appropriate. For other changes, the source may have
already established that the operating parameter being monitored
(e.g., temperature) is representative of emissions, and the only
monitoring change necessary is to set a new operating level reflective
of compliance with a new emission limit, or one that is more
reflective of compliance in general. This situation may warrant more
review than the former example; however, EPA believes some
streamlining of the review process is appropriate, given the
correlation that has already been established between the monitored
parameter and emissions. In other cases, the correlation between
emissions and the proposed monitoring method may be unclear, unknown,
or poorly established for that source's unique operating conditions.
In these cases, or where the source proposes to apply an entirely
different monitoring method, EPA believes the change must be reviewed
as a significant permit revision.
(i) Administrative Amendments. Like the proposed four
track-system discussed earlier, this option would continue to allow
the administrative permit amendment process for increases in the
frequency of monitoring or reporting. Additionally, this option
proposes to allow increases in the frequency in testing and
recordkeeping to undergo review through the administrative permit
amendment process, since EPA believes that these increased frequencies
have no potential to reduce the ability to monitor compliance. Also,
where the monitoring change was reviewed as part of a merged
NSR/part 70 procedure, the resultant part 70 permit review could be
processed as an administrative permit amendment. However, EPA
believes that the administrative amendment permit revision track
provides such limited oversight, review, and feedback that it is not
sufficient for the majority of monitoring changes that could reduce
the ability to monitor compliance. The EPA solicits comment on other
changes to monitoring that are easily recognized and have no potential
to reduce a source's ability to monitor compliance, and on whether
such changes might be appropriately incorporated through the
administrative permit amendment track.
(ii) De Minimis Permit Revisions. The EPA believes that certain
changes to monitoring are such that they do not affect, or only
enhance, the ability of the monitoring method to measure emission
results. Monitoring changes that do not affect the ability to measure
emission results are those changes that do not have an adverse effect
on measurement sensitivity and representativeness such that precision
and accuracy are unaffected. Minor changes may include, for example,
a change from a stainless steel sampling probe to a teflon-lined probe
to address a corrosion problem for a CEMS which measures acid gases
(e.g., SO2). This change is site-specific, does not affect the
measured value, does not have particular national significance, and
will improve the operation and availability of the CEMS. Another
example would be where a temperature monitor on an incinerator is
changed from an analog readout with manual data recording to an
automatic electronic data management system. These types of changes
have traditionally been labeled "minor" changes in the monitoring
method under the NSPS and NESHAP programs.
States are currently delegated the authority to review and
approve minor changes without prior EPA concurrence or consultation
under the 7-14 Delegations Manual (a copy of which can be obtained
from docket A-93-50). To maintain consistency with these delegations,
and to expand the ability to expedite such monitoring changes to other
regulatory programs, this option proposes that "minor" monitoring or
recordkeeping changes be eligible for processing as de minimis permit
revisions. The EPA expects that the majority of changes requested
will be within this category of monitoring or recordkeeping changes.
Since such changes do not affect the ability to measure emission
results and are anticipated to be numerous, direct EPA oversight and
review would not be necessary, practical, or efficient.
Under the option proposed, to ensure sufficient review of the
requested monitoring change by the permitting authority, the source
would have to conduct a demonstration and obtain affirmative approval
of the demonstration's adequacy from the permitting authority prior to
submitting its application for the de minimis permit revision. The
permitting authority's determination of adequacy would be based on an
evaluation of the demonstration using the criteria provided in part
64. In the application requesting the de minimis permit revision the
source would have to provide a summary of the demonstration and
verification of the permitting authority's affirmative approval. The
permitting authority would then be required to place a summary of the
demonstration, a copy of the complete demonstration, and an
affirmative statement by the permitting authority of the
demonstration's adequacy in the public docket for the de minimis
permit revision. Upon the monthly, batch public notice of the de
minimis permit revision, the public would have access and an
opportunity to review this information, along with the rest of the de
minimis permit revision application, and could supply written comments
on the change. The EPA would also have access to this information,
and under this option could, upon citizen petition, review and object
to any demonstration and de minimis permit revision that fails to
assure compliance with applicable requirements.
The EPA believes that the proposed de minimis permit revision
track would provide sufficient opportunity for oversight of such minor
changes to monitoring methods, since States have already developed
expertise in determining whether changes are minor or major and in
approving minor changes under the delegations policy discussed above.
This practice currently occurs with only minimal EPA oversight.
Processing such changes through the de minimis track would ensure
national and programmatic consistency in the treatment of such
changes, and provide the public with an opportunity to review and
comment on these changes as they occur. It would also ensure that
permitting authorities evaluate and make affirmative determinations on
each change, which would become part of the permitting record for
public, affected State, EPA, and ultimately administrative and
judicial review. For example, where a citizen in the public comment
process failed to elicit a response from the permitting authority on
the change, the citizen could petition EPA to object. The EPA would
then review the de minimis permit application and the demonstration,
and if the Agency found the demonstration was inadequate, it would
veto the de minimis permit revision, and thus render the source liable
for the inappropriate change. The EPA believes this possibility would
serve as a meaningful deterrent and ensure that minor changes to
monitoring are proposed, approved, and implemented with integrity.
The EPA also notes that in order for this option to provide for
the de minimis permit revision track to process certain minor changes
to monitoring methods, SIP revisions would be required to create a
provision in the SIP to allow sources and permitting authorities to
develop changes to SIP-required monitoring methods through the part 70
permitting process without also having to undertake source-specific
SIP revisions. As States develop these "SIP flexibility" provisions,
the public would have an opportunity to review and comment upon them,
and EPA approval of the SIP provisions would be required. Moreover,
as would always be required in the de minimis track, the source's
permit would have to contain an express term or condition allowing the
source to make these types of minor changes at the relevant unit
through the de minimis track. Such a term or condition could only be
established through full permitting process, and the public and EPA
would have a full opportunity to review the creation of this
"pre-authorizing" term. Moreover, all pre- authorizations would have
to be renewed every permit term, which is in itself a deterrent to
potential abuse. Given all of these safeguards, EPA believes minor
changes to monitoring may appropriately be processed through the de
minimis permit revision track.
Note also that integrating this option into the proposed
four-track system would require some amendment to the system. First,
under the unit-based track, any change that otherwise qualified as
unit-based de minimis would be eligible for de minimis procedures,
whether or not any associated changes in monitoring were minor, major,
or even entirely new or alternative. This option would screen out the
more significant monitoring changes, such that changes that would
qualify as unit based de minimis at small units could be processed as
de minimis permit revisions only if any associated monitoring changes
were previously demonstrated to the permitting authority to be minor.
Second, the scope of eligible changes under the increment-based
de minimis track would be expanded. As proposed, the increment-based
criteria exclude from the de minimis permit revisions associated
re-calibration of CEMS or operational parameters unless such changes
have first been established in the permit program, the permit, or
through procedures at least as stringent as minor permit revision
procedures. However, EPA is concerned that permitting authorities
would find it difficult to apply the proposed criteria or to exercise
the foresight to establish how such changes would be governed and
incorporated on a case-by-case basis. The alternative option would
replace the proposed criteria with provisions allowing minor
monitoring changes to be eligible for the de minimis permit revision
track.
Third, while this option would retain the provisions that would
require a source to be in compliance with the terms it seeks to revise
through the de minimis track and that would prohibit de minimis
thresholds from being established through netting, for minor changes
solely to monitoring it would create exceptions to the provisions that
would require the need for a permit revision to result from a physical
or operational change and that would exclude from eligibility changes
involving a limit established solely pursuant to part 70 provisions.
The EPA believes these exceptions would be necessary in order to allow
sources and permitting authorities to make minor changes to monitoring
methods where no other change is involved. These minor monitoring
changes might not trigger other preconstruction review, and if there
were no exception to the physical or operational change requirement,
these minor improvements to monitoring would be forced to go through
less streamlined procedures. Moreover, to the extent a source's
monitoring methods were established solely through part 70 procedures,
as may occur for enhanced monitoring protocols, EPA believes it should
not be necessary to require minor improvements to such methods to be
processed through more burdensome significant permit revision
procedures in light of the stringent qualification criteria for minor
changes and the safeguards discussed above. As would be otherwise
provided under the de minimis permit revision track, minor monitoring
changes processed under this option would not receive a permit shield.
The EPA is taking comment on other monitoring changes that may be
appropriate for review under the de minimis permit revision
procedures. One category of such changes might be those associated
with unit-based de minimis changes, notwithstanding whether associated
changes to monitoring qualify as "minor." On one hand, the emission
increases from such changes could be so small that it is unlikely that
changes in the correlation between emissions and the operating
parameters being monitored could be environmentally significant.
Further, EPA believes that any necessary change in the enforceable
operating level could be so small that an expedited review of such
changes is appropriate. However, if the application for the de
minimis permit revision did not demonstrate how the new operating
level is correlated to emissions, the change could not be reviewed
through the de minimis track.
The EPA recognizes the challenge in defining the distinction
between changes traditionally considered "minor" and "major." If the
definitions are unclear, the result will be inconsistent judgements as
to the appropriate track for reviewing and processing the changes. As
a result of this potential difficulty, the Administrator is taking
comment on the adequacy of the definitions provided, as well as any
means for clarifying the distinction. The EPA is also soliciting
comment on eliminating the distinction and reviewing minor and major
changes under a single track, either the de minimis permit revision
track or minor permit revision track.
(iii) Minor Permit Revisions. The EPA is proposing, in this
option, three categories of monitoring changes as appropriate for
review through the proposed new minor permit revision process. The
first category of monitoring changes are changes in the enforceable
operating level that are correlated to the existing or proposed
emission rate. The second category are monitoring or recordkeeping
changes that have traditionally been considered "major" changes in the
NSPS and NESHAP programs, excluding a switch to a new or alternative
monitoring method. The third category are those monitoring changes
which have been approved pursuant to minor or major NSR, including a
switch to a new or alternative monitoring method.
The first category of changes that EPA is proposing for review in
the minor permit revision process are changes to the operating level,
excluding a switch to a new or alternative operating parameter. Where
a source's compliance is determined through the monitoring of
operating parameters, such as temperature or pressure drop, a change
in a source's emission limit will likely necessitate a change in the
operating level which is demonstrative of compliance with the emission
standard. The EPA believes such a change would be appropriate for
review in the minor permit revision process. An example of such a
change would be if compliance with an emission standard has been
correlated to an incinerator temperature of 1800 degrees Fahrenheit
and an increase in the source's emission limit might result in
compliance being achieved at 1600 degrees. Alternatively, a source
may wish to change the enforceable level of the operating parameter,
absent a change in the emission limit, simply based on a demonstration
that the new proposed operating level is also demonstrative of
compliance with the existing emission limit.
In both of these cases, the change in the enforceable operating
level (i.e., the temperature limit) necessitates review sufficient to
ensure that the new operating level is indeed representative of
compliance with the applicable emissions limit. Since in these
examples the temperature limit serves as the direct demonstrator of
compliance, changes in the temperature limit will have a similar
impact as a change in the emission limit and should therefore undergo
review by EPA. Under the option proposed here, where the operating
parameter is still correlated to emissions (i.e., temperature can
still be representative of compliance) such a change could be reviewed
through the proposed minor permit revision process. That is,
monitoring changes that involve solely an adjustment to the level of
the parameter being monitored, but do not necessitate a change in the
type of parameter being monitored, may not need to undergo the longer
review periods available through the significant permit revision
process. Using the previous example, where only the temperature limit
or level needs adjustment, but temperature as an operating parameter
is still demonstrative of compliance, the change in temperature level
could be reviewed as a minor permit revision. Since the original
demonstration which showed a correlation between the operating
parameter and emissions is still valid, this lessens the time and
level of review needed by the permitting authority. However, the
permit application would have to justify why the existing operating
parameters are still demonstrative of compliance, as well as justify
the new proposed compliance levels.
Alternatively, where a change at the source is such that the
existing operating parameters are no longer demonstrative of
compliance, EPA believes that the monitoring change must be reviewed
through the significant permit revision process. For example, where a
new raw material is introduced, its properties may be so different
from the previous raw material that different operating parameters
need to be monitored, whereby temperature alone may no longer be
representative of compliance.
The second category of changes that EPA is proposing under this
option are monitoring changes that have traditionally been considered
"major," excluding new or alternative monitoring methods. Such
changes include changes to the existing monitoring method that affect
measurement sensitivity and representativeness, thus potentially
affecting the ability to measure emission results; changes that affect
the scope and intent of the existing monitoring method; and changes
that may be applicable to similar monitoring methods in the same or
other source categories.
An example of a "major" change qualifying for review under the
minor permit revision process would be a change to a continuous
emission monitoring system (CEMS) to modify the sample conditioning
system with the addition of a moisture condenser to improve the
operating reliability of the analyzer. Such a change would require a
demonstration that the CEMS data are valid for determining compliance
with the applicable emission limit. The sample conditioning system
change could alter the sample by removing not only moisture (change
from wet to dry concentration requiring a moisture measurement and
correction), but also by potentially removing some condensable
compounds before analysis. However, a complete change from a gaseous
CEMS to a parameter or predictive emission monitoring system would
constitute a new or alternative monitoring method, therefore,
requiring review through the significant permit revision process.
Notwithstanding the above exclusion of new or alternative
monitoring changes from the minor permit revision track, EPA is
soliciting comment on the appropriateness of allowing selected new or
alternative monitoring methods to be approved through the minor permit
revision process where the change has received prior EPA approval.
The Agency believes that prior EPA approval would require that EPA has
previously officially recognized the new or alternative method for a
particular source type and emissions matrix (e.g., under previous EPA
delegation authority or Emission Measurement Technical Guidance
documents). In particular, EPA is requesting comment on whether prior
EPA approval of a new or alternative method provides an adequate
bright line test for use by the permitting authority in determining
whether a given new or alternative change may undergo review through
the minor permit revision track. The EPA believes that the minor
permit revision track contains sufficient safeguards to allow the
permitting authority to determine that the new or alternative method
has not received official EPA approval and to require that the method
must undergo review in the significant permit revision track.
The third category of changes that EPA is proposing under this
option as eligible for the minor permit revision process are
monitoring changes that in conjunction with a physical or operational
change have been approved pursuant to minor or major NSR, provided
that the preconstruction review has sufficiently focused on the
adequacy of the proposed monitoring change. This category of
monitoring changes may include "major" changes as discussed above, as
well as changes to new or alternative monitoring methods. Changes to
new or alternative monitoring methods are those that result in a
fundamental change in the monitoring protocol used to determine
compliance with the permit conditions. Such changes include, but are
not limited to, measurement of a different pollutant, surrogate
constituent, or operating parameter than measured by the existing
monitoring method; use of an alternate analytical principle for
measuring the pollutant, surrogate constituent or operating parameter;
or use of a different monitoring frequency or data averaging time.
The EPA believes that these types of changes will receive
sufficient review in the NSR process to allow incorporation through
the minor permit revision process. This eligibility, as in the case
of merged NSR, would also be available on a permit by permit basis.
Under this option, the permitting authority would be required to
affirmatively approve the source's monitoring demonstration in the NSR
action, and the demonstration along with verification of affirmative
approval would be included in the source's part 70 minor permit
revision application. Where the level of review and oversight
provided in the NSR process is not sufficient to ensure the adequacy
of the requested monitoring method, the requested change would be
required to be reviewed through the significant permit revision
process. Moreover, initial review of new or alternative change would
be processed as a significant permit revision.
The procedure under this option would require that prior to
applying for a minor permit revision to an existing monitoring method,
the source would have to provide a demonstration under part 64 and
obtain affirmative approval of the demonstration's adequacy from the
permitting authority. The permitting authority's determination of
adequacy would be based on an analysis of the demonstration using the
criteria provided in part 64. In order to provide meaningful public,
affected State, and EPA review, the source would be required to
provide a summary of the demonstration and verification of its
approval by the permitting authority in its application for a minor
permit revision. For monitoring changes approved pursuant to minor or
major NSR, the source would be required to provide supporting
documentation from the minor or major NSR permit approval which
evidences the demonstration and its approval by the permitting
authority in the application for the revision. As would generally be
required under the proposed minor permit revision track, the source
would be required to forward the application to EPA for its 45-day
review and to any affected States immediately upon submitting its
application to the permitting authority.
The permitting authority would then be required to place a
summary of the demonstration, a copy of the complete demonstration,
and an affirmative statement by the permitting authority of the
demonstration's adequacy in the public docket for the minor permit
revision. The public would have access and an opportunity to review
this information, along with the rest of the minor permit revision
application, and could supply written comments on the requested
change. As otherwise provided under the proposed minor permit
revision track, if no comments were submitted during the 21-day public
comment period and if neither the permitting authority or EPA objected
to the change, the source would be able to implement the change on the
22nd day after submitting its minor permit revision application. If
comments were received, however, the permitting authority would be
required to determine whether those comments were germane and
non-frivolous within 28 days after the source submitted its
application. Where the permitting authority failed to make such a
determination or found that the comments were either frivolous or not
germane, the source would be able to implement the change on the 29th
day after it submitted its application, again provided that neither
the permitting authority nor EPA had objected to the change. If the
permitting authority failed to timely respond to submitted comments,
the commenter would be able to sue to compel the permitting authority
to respond and would be able to seek an injunction against the source
implementing the requested change.
The EPA would also be able to review the summary and gain access
to the complete demonstration to determine whether the change assures
compliance with applicable requirements, since the source would have
provided EPA with a copy of the minor permit revision application.
Also, as would be otherwise provided by the proposed minor permit
revision track, where EPA did not object to a given change during its
45-day review period, citizens would be able to petition EPA to
object, and seek judicial review in Federal court if EPA did not
object to the change in response to the petition.
The EPA recognizes that even after permitting authority approval
of initial part 64 demonstrations, subsequent verification testing
might be required in order to ensure that the approved monitoring
change was appropriate, and that such verification testing might not
be able to be completed before the deadline for final permitting
authority action on minor permit revision applications. The
verification testing would have to be conducted according to a fixed
compliance schedule with enforceable milestones established by the
permitting authority. After the permitting authority approved the
initial demonstration and established a compliance schedule for the
verification testing, the source would then submit its minor permit
revision application. Upon expiration of the public comment period,
as otherwise provided in the proposed minor permit revision track, the
source could implement the change and begin the verification testing
in accordance with the established compliance schedule. The
permitting authority would then take appropriate final action on the
minor permit revision application as required, even if verification
testing were ongoing. The source would have up to 90 days to complete
any verification testing and to submit a demonstration of its adequacy
to the permitting authority. Upon receipt of the source's
verification test results, the permitting authority would have to
promptly notify the source in writing of its acceptance or rejection
of the test results, and place a copy of its determination in the
public docket. The EPA is soliciting comment on the definition of
"promptly" and believes that 30 to 90 days would be an appropriate
definition. If, after the permitting authority's final action
revising the permit, the verification testing showed that the
monitoring change ultimately failed to demonstrate compliance as set
forth in the demonstration, upon receipt of written notice from the
permitting authority the minor permit revision would become null and
void, the source would be required to comply with the monitoring terms
and conditions that applied to the source before the minor permit
revision, and the source would be liable for having operated in
violation of its permit from the time the change was implemented until
the permitting authority took final action to revise the permit.
Moreover, if the source continued to operate the change after the
permit revision had become null and void, it would be liable.
However, if the verification testing confirmed that the monitoring
change demonstrated compliance, the permitting authority would then
place a copy of the final verification test in the public docket for
the minor permit revision.
The EPA believes that the proposed minor permit revision track
would provide sufficient opportunity for oversight of these types of
monitoring changes. The requirement that the permitting authority
affirmatively approve the major monitoring changes and changes in
enforceable operating levels prior to the source's submission of the
minor permit revision application would ensure that the public,
affected States, and EPA have the ability to review and comment upon
not only the source's proposed change, but also on the permitting
authority's assessment of the change. Such permitting authority
assessments would become part of the permitting record for the change,
and would be subject to administrative and judicial review. The
public would be afforded an opportunity to comment upon each change
prior to its implementation, and EPA would retain the ability to
disapprove any change it found objectionable. Such disapproval could
occur even after the source implemented the change, rendering the
source liable for operating in violation of its permit. The EPA
believes this possibility serves as a considerable deterrent against
sources proposing and operating inappropriate major monitoring
changes.
Again, EPA notes that in order for States to use the minor permit
revision process for major monitoring changes under this option, SIP
revisions would be required to create a provision in the SIP allowing
sources and permitting authorities to develop changes to SIP-required
monitoring methods through the part 70 permitting process without
having to undergo source-specific SIP revisions. The SIP revisions
creating this "SIP Flexibility" would provide the public an
opportunity to comment on the provision both at the State and Federal
level, and would require EPA approval into the SIP.
For major monitoring changes and new or alternative methods
approved pursuant to minor or major NSR, EPA believes that such
preconstruction actions provide an adequate forum for initial
permitting authority approval of these changes prior to the minor
permit revision process. Such a forum is especially important for
changes representing new or alternative monitoring methods. Both
minor and major NSR actions are required by EPA regulations to provide
public process for preconstruction changes, and permitting authorities
have developed a long-standing practice in NSR programs. The NSR
actions that would allow major changes or establish new or alternative
methods would be required to explicitly focus upon and approve the
monitoring change to be eligible for subsequent minor permit revision
processing under this option, and would be required to provide the
forum for the demonstration of the adequacy of the monitoring change
under part 64. Given the safeguards discussed above, EPA believes
major monitoring changes and changes representing new or alternative
methods could appropriately be processed as minor permit revisions.
Integrating the proposed option into the four-track system would
require some amendment to the proposed minor permit revision criteria.
First, this option would delete the proposed provision that changes to
monitoring requirements could be processed as minor permit revisions
only if they are necessary to implement changes that otherwise qualify
for this track. This option would replace that provision with
principles establishing the scope of eligible monitoring changes as
discussed above.
Second, this option would expand the scope of eligible changes in
that it would create an exception to the proposed provision that would
exclude changes involving a limit previously established as federally
enforceable solely pursuant to part 70 procedures. As is the case for
de minimis permit revision procedures, EPA believes this exception
would be necessary in order to allow sources and permitting
authorities to make changes to monitoring where no other changes
trigger preconstruction review. Furthermore, to the extent a source's
monitoring method is established solely through part 70 procedures, as
may occur for enhanced monitoring protocols, EPA believes it would not
be necessary, once those protocols have been established pursuant to
significant permit revision procedures, to require that all changes be
processed through procedures beyond those provided by the minor permit
revision track, given the procedural safeguards that would be required
under this option.
Third, this option would add to the application and public
docketing requirements of the minor permit revision track for eligible
monitoring changes, add the requirement of the demonstration under
part 64 prior to submission of a minor permit revision application,
establish the ability to conduct verification testing even where
existing permit terms conflicted with such testing, and establish a
separate liability test where verification testing demonstrates
post-permit revision that a monitoring change was not adequate. While
these amendments to the proposed minor permit revision track would be
substantial, EPA believes the result is a more coherent, flexible, and
appropriate approach for expeditiously processing monitoring changes.
(iv) Significant Permit Revisions. Under this option, monitoring
changes that did not qualify for the administrative, de minimis, or
minor permit revision tracks would have to be processed as significant
permit revisions. For example, a switch to a new monitoring method
that had not been affirmatively reviewed pursuant to NSR, including a
new parameter to be monitored, would be required to be processed as a
significant permit revision. The significant permit revision process
would also be required for the initial implementation of an enhanced
monitoring protocol in order to ensure that EPA has sufficient review
of the new method. Part 64 will provide further discussion of the
implementation of an enhanced monitoring protocol. The EPA solicits
comment on whether there are any other broad types of changes in
monitoring that should be specifically identified as requiring
significant permit revision.
d. Liability Under the Alternative Option. As discussed above
(see "Liability for Making Changes Before Permit is Revised"),
industry expressed concern in settlement discussions that since
certain monitoring, recordkeeping and reporting requirements may be
determined on a case-by-case basis in the permitting process, the
utility of the proposed streamlined revision tracks would be
undermined by the inability of the source to propose with certainty
the appropriate compliance terms in its permit revision application.
In particular, industry suggested a source might expose itself to
liability if it operated a change prior to final approval of the
change by the permitting authority. Were the permitting authority to
subsequently disapprove a change that the source had already begun to
operate, the source would be subject to liability for operating in
violation of the applicable permit terms. As discussed earlier in
this notice, the Agency has proposed to address this concern by
allowing the permitting authority to approve proposed permit revisions
(including certain changes to relevant compliance terms) and to allow
the permitting authority not to hold the source liable for having
operated in violation of the original proposed permit terms.
However, the Agency believes the alternative option concerning
use of the proposed revision tracks for changes to source compliance
monitoring existing in a permit may eliminate most, if not all, of the
short term uncertainty regarding the adequacy of compliance terms in a
proposed permit revision. Under the alternative option, since all
changes to monitoring requirements in an existing permit that are
eligible for de minimis or minor permit revision tracks must have been
approved by the permitting authority prior to the submission of the
proposed operating permit revision, uncertainty as to the permitting
authority's positions will be eliminated. In addition, the existence
of prior permitting analysis and approval of the proposed change
should make it less likely that adjustments to the compliance
monitoring requirements will be necessary in the permitting
authorities final approval of the permit revision.
In light of these considerations, the Agency requests comment on
the need for appropriateness of provisions in the revision procedures
discussed earlier in this notice that allow the permitting authority
to correct minor changes in compliance monitoring requirements in the
final permit revision, and on whether the permitting authority should
be authorized to excuse source liability for operating changes that
are subsequently disapproved. The Agency also solicits comment on
whether under the alternative option any risk of potential source
liability for operating a change prior to final permitting authority
approval would unreasonably limit the use of the streamlined revision
process and whether the integrity of the revision process for
compliance monitoring would be better assured by allowing sources to
assume the full risk, especially given the greater breadth of
compliance monitoring changes subject to streamlined revision
procedures under the alternative option and the greater certainty
afforded by requiring prior permitting authority approval of the
proposed change.
e. Solicitation of Input on Test Method Changes. The EPA is
also soliciting comment on whether to allow certain test method
changes to also be eligible for review under permit revision
procedures more streamlined than the significant permit revision
processes, similar to the way monitoring changes are addressed in the
proposed option discussed above. While the potential need to revise a
test method should generally be unrelated to the previously described
flexibility needs of sources, EPA believes that certain types of
changes to test methods may be appropriate for more expeditious review
particularly given the proposed use of method 301 as set forth in 40
CFR part 63, appendix A, as the standardized criteria for evaluating
changes to testing. As discussed with respect to monitoring changes,
test method changes would be appropriate only as allowed by the
underlying applicable requirements, including the SIP.
The EPA is considering whether the use of method 301 establishes
sufficient and adequate criteria to evaluate new alternative and major
changes in test methods. A proposed alternative test method which
meets the criteria in method 301 is considered substantially
equivalent to the existing method, and is an acceptable change. If
EPA were to allow test methods to be changed pursuant to the
procedures described above, the review and acceptance of new test
methods using the method 301 criteria could be conducted by the
permitting authority, and EPA Headquarters would be available for
technical assistance and arbitration of approval or disapprovals of
proposed methods.
F. General Permits
The statute and the current rule authorize permitting authorities
to issue general permits to sources that are similar enough that they
are subject to the same set of applicable requirements, may be
monitored in the same way, and thus may be covered by the same permit.
General permits have the potential to greatly reduce the cost of
permitting similar sources and are the likely approach to permitting
numerous smaller sources. The Agency considers general permits an
important element of a workable, cost-effective permit program.
Under the current rule, general permits for specific source
categories are to be developed using full permit issuance procedures.
Following promulgation of the general permit, sources that believe
they meet the criteria for coverage by the general permit may submit a
request to the permitting authority to operate under it. The
permitting authority may authorize sources to operate under the
general permit without public participation, and such authorizations
are not judicially reviewable. A source authorized to operate under a
general permit, however, is subject to an enforcement action for
operating without a part 70 permit, notwithstanding the permit shield
provisions, if the source is later determined not to qualify for
coverage under the general permit.
In the preamble to the current rule, EPA explained that the
primary purpose of general permits is to provide a less burdensome
means of permitting numerous similar sources, and that public
participation in and judicial review of the permitting authority's
decision to authorize a source to operate under a general permit would
undermine that purpose. The Agency sought to offset the lack of
public or judicial review with the provision making sources liable for
operating without any permit if they were later determined not to
qualify for a general permit.
State and environmental group petitioners challenged several
aspects of the current rule's approach to general permits. Both
groups of petitioners objected to the provision denying judicial
review of a permitting authority's decision to authorize a source to
operate under a general permit. Environmental group petitioners also
objected to the lack of public participation in the decision to
authorize operation under a general permit. The petitioners generally
challenged EPA's authority to exempt decisions regarding a source's
eligibility for a general permit from public review or final agency
action from judicial review. They were also not convinced that
subjecting a source to continued liability for operating without a
part 70 permit was enough to offset the loss of public or judicial
review. They noted that a primary purpose of title V was to remove
from enforcement actions the issue of what requirements applied to a
source and that EPA's approach to general permits ran counter to this
purpose.
The Agency has reexamined the general permits provisions of the
current rule from a legal and policy standpoint, and has concluded
that the current rule provides too little opportunity for public
oversight of the general permits. As noted above, the current rule
relies exclusively on the availability of an enforcement action
against a source that received authorization to operate under a
general permit but should not have, to ensure the integrity of the
general permitting process. On reflection, EPA agrees with the
petitioners that this liability provision does not appropriately or
effectively compensate for the lack of public or judicial review of
the authorization decision itself. First, the liability provision
returns to the enforcement arena basic issues of applicability that
the permit program was established to settle in the permitting
process. It is also questionable how effective enforcement actions
would be as a remedy to inappropriately granted authorizations.
Without public notice of the authorization, citizens could not easily
determine who had been granted authorization and on what basis.
Citizens would therefore be poorly situated to bring enforcement
actions on their own. It is also questionable whether all courts
would be willing to impose the potentially extremely heavy penalties
that could have accrued if a source were found ineligible for a
general permit in an enforcement action. The source would likely
argue, and a court may well agree, that it had received and reasonably
relied upon an authorization to operate under a general permit.
The Agency therefore proposes to delete that portion of the rule
that provides that permitting authority decisions to authorize sources
to operate under general permits are not judicially reviewable. The
Agency also proposes to require that the permitting authority provide
public notice of any authorization decisions it has made. Public
notice could be provided on a monthly, batched basis, as EPA is also
proposing for de minimis permit revisions.
The Agency is also considering whether to revise the rule to
require permitting authorities to provide an opportunity for public
objection to authorization requests. If the public had some
opportunity to participate in the permitting authority's
decision-making process itself, fewer challenges to authorization
requests would end up in court, and those that did would likely have
the benefit of an underlying administrative record for the court to
consider in making its decision. The Agency requests comment on the
need for public comment on decisions by the permitting authority to
authorize operation under a general permit.
One manner of offering the public an opportunity to participate
in authorization decisions is that proposed for de minimis change
procedures. As described before, the proposed de minimis change
procedures would require a monthly public listing of the de minimis
changes for which the permitting authority had received applications
the previous month. Upon posting of the monthly list, the public
would have a specified period of time in which to petition the
permitting authority to disapprove the change request. The permitting
authority would then have a specified period of time in which to
respond to any public objections, and if at the end of that period it
had not denied the change request, the request would be deemed
granted. A citizen unsuccessful in persuading the permitting
authority to object to the change would be able to seek EPA or
judicial review. No permit shield would be available for permit
revisions processed using these procedures.
Applied to the general permit context, the process would entail a
monthly public listing of the sources that had requested authorization
to operate under the general permit; a specified period of time for
the public to object to any such requests; a specified period of time
for the permitting authority to respond to any objections; default
granting of authorization if the permitting authority failed to act by
end of the period for its response; and recourse to EPA or the courts
if a public objection had not been heeded.
Unlike the de minimis revision procedures, however, EPA believes
that authorizations granted (or deemed granted) in accordance with
these public procedures could, at the permitting authority's
discretion, provide a source receiving such an authorization with a
shield against an enforcement action for operating without a permit.
In other words, EPA would delete the current rule's provision that
leaves a source that receives an authorization to operate under a
general permit liable for operating without a permit if the source is
found in an enforcement action to not qualify for the general permit
under which it has been operating. The Agency requests comments on
whether a shield against enforcement against operating without a
permit should be available if the Agency were to require procedures
like those described above. It notes that whether or not such a
shield is made available, the permitting authority could provide for a
shield when it first issues the general permit to the effect that a
source which qualifies to use the general permit may rely on the terms
of the permit to comply with the Act's requirements addressed in the
general permit.
The Agency believes that the process described above has the
advantage of providing for public participation in decisions about the
eligibility of particular sources for a general permit in a manner
that would not place any undue burden on sources. A source interested
in being covered by a general permit would only have to apply to the
permitting authority, and would not have to further interact with the
permitting authority unless its application was questioned or denied.
Obviously, public involvement in review of a source's application may
lead to more questions than would have otherwise occurred, but one of
the benefits of public participation is the additional scrutiny it
affords. The Agency recognizes, moreover, that the cost of providing
an opportunity for public participation would be passed on to sources
through permit program fees. These costs to the source, however,
would be offset by the availability of the shield against enforcement
for operation without a permit that the procedures would afford.
The Agency is interested in receiving comment on the burden the
process described above would place on permitting authorities. For de
minimis changes, EPA is not proposing that public notice take any
particular form, and it is not suggesting any particular form for
general permits, either. Potentially, low cost means of publicly
circulating the list of general permit applicants could be found.
Permitting authorities would more likely incur any substantial added
costs as a result of the need to respond to public comment. To the
extent that the public raised significant concerns about the
eligibility of a source for a general permit, though, these costs
would be justified. To the extent the public comments were not
significant or germane, the permitting authority would require less
time to respond to them, if it had to respond at all.
The Agency is also interested in receiving comment on an
alternative approach to authorizing sources to operate under general
permits. Under this approach, the permitting authority could
authorize sources to operate under a general permit without public
involvement, but would be required to provide after-the-fact notice to
the public of the sources whose requests for a general permit were
granted. The permitting authority would also be required to provide
as part of its permit program an expedited means of revoking a permit
(see discussion of permit revocation procedures elsewhere in this
preamble). The public would have the opportunity to petition the
permitting authority to use the expedited process to revoke the
authorization a source had received from the permitting authority.
The advantage of this approach would be that a source could
obtain authorization without having to wait for the expiration of the
periods for public objection and permitting authority response. From
the public's standpoint, it would not require full permit issuance
procedures (which the permitting authority has 18 months to complete)
to revoke an improper authorization to operate under a general permit.
This approach would be preferable, moreover, to that taken by the
current rule, in that questions of eligibility would be settled in an
administrative action prior to an enforcement action. The Agency
requests comments on whether it would be appropriate to establish
minimum criteria for expedited permit revocation procedures if it were
to take this approach, and if so, what those criteria should be.
A difference between the two approaches would be the availability
of the permit shield. As explained above, EPA believes that general
permits issued pursuant to procedures like those proposed for de
minimis changes could provide a shield against enforcement for
operating without a permit, even if the source is later determined to
not qualify for the general permit. Under the second approach
described above, the source would obtain its authorization without the
benefit of any public involvement, and under such circumstances EPA
believes it would be inappropriate to afford any permit shield.
Commenters should taken into account the potential availability of a
shield for the former approach in commenting on the relative merits of
the two approaches.
IV. Other Changes and Clarifications
The following section of today's notice addresses other issues
raised in the permits case or during State/local agency and EPA
implementation of the part 70 permits program. The issues are
presented in the order of the sections in part 70 to which they
relate. The EPA proposes to resolve some issues through rule
revisions while for others the Agency offers clarifications or
guidance.
A. Section 70.2--Definitions
1. Applicable Requirements
a. Emissions or Offset Credits and Limits Taken to Avoid
Applicable Requirements. The current definition of "applicable
requirements" in part 70 does not include an explicit reference to
requirements that create emissions or offset credits or that limit
emissions for the purpose of avoiding applicable requirements. The
proposed change would clarify that applicable requirements include any
emissions-limiting requirement that is enforceable by EPA and by
citizens under the Act and that is imposed on a source for purposes of
creating an emissions or offset credit or avoiding the applicability
of other applicable requirements. Several petitioners in the permits
case are concerned that the rule may be read to not require the
inclusion of such requirements in a part 70 permit. The Agency
believes that virtually all such requirements fall within the scope of
the listed components in the definition of applicable requirements.
For instance, limits taken to avoid major NSR are generally
established in minor NSR permits the terms of which are included as
applicable requirements under paragraph (2) of the definition.
Likewise, a source's ability to earn emissions or offset credits is
generally grounded in regulations establishing an emission control
program or standard (e.g., NSR or MACT) that are also listed as
sources of applicable requirements in the current rule.
The Agency nevertheless appreciates petitioners' concern that
without an explicit reference in the applicable requirements
definition, at least some limits taken for potential to emit or
emissions credit purposes might be construed as not falling within the
listed categories of applicable requirements. It is important to
include these voluntarily undertaken limits in part 70 permits, as
they require emissions reductions or controls that allow a source to
avoid other, presumably more onerous, emissions reductions or
controls. It is especially important if the limit creates a credit to
be used to allow increased emissions at another source. The Agency is
thus proposing to explicitly include these requirements in the list of
applicable requirements. A new paragraph (2) is proposed to be added
under the definition of applicable requirement to reflect these
changes. The remaining paragraphs would be renumbered accordingly.
b. Title VI Requirements.--Currently, section 70.2 defines
"applicable requirement" to include "[a]ny standard or other
requirement of the regulations promulgated to protect stratospheric
ozone under the title VI of the Act, unless the Administrator has
determined that such requirements need not be contained in a part 70
permit" (emphasis added). In today's action, EPA proposes to
determine that certain title VI requirements need not be included in
part 70 permits.
The EPA believes that portions of the title VI program are
fundamentally different from the other programs contained within the
definition of "applicable requirements" in part 70. These other
programs (e.g, NSR, PSD, NSPS, toxic air pollutants, acid rain, and
solid waste combustion (section 129)) are based on control of
emissions from stationary sources which produce pollutants as a result
of their various processes. In contrast, the title VI program reduces
ozone-depleting substances (ODS) not so much by requiring controls on
emissions but by requiring the phaseout of production of ODS,
technician certification, bans on non-essential products, evaluation
of alternatives for the most potent ODS, regulation of interstate
commerce of ODS, and warning label requirements.
In addition, to be most effective, many title VI activities
require national consistency which could be compromised if implemented
by State or local operating permit programs. Therefore, EPA proposes
to delete as applicable requirements the requirements of sections
604-607 and 610-612 of the Act. Today's proposal would retain,
however, the title VI regulations under sections 608 and 609, which
apply to ODS capture and recycling during service and disposal of
refrigerator equipment and air conditioners (including motor vehicle
air conditioners (MVAC)). These requirements are more similar to
requirements issued under section 111 and 112.
(1) Phase Out of Production and Consumption of ODS--Section 604,
605, and 606. Sections 604, 605, and 606 of the Act require EPA to
promulgate a schedule to phase out the production and use of
ozone-depleting chemicals, and to accelerate the phaseout if certain
actions occur. On December 10, 1993, EPA promulgated regulations
which accelerated the originally promulgated schedule for the phaseout
(40 CFR 82, Subpart A, 58 FR 65018). Under the accelerated phaseout,
production of Class I substances will be phased out by 1996. Class I
substances are CFC's, halons, carbon tetrachloride, methyl chloroform,
and methyl bromide. The phaseout is accomplished by issuing
decreasing numbers of production and consumption allowances to ODS
producers and importers which are few in number and scattered across
the country. Allowances are issued not to individual facilities but
to corporations, many of which have facilities in more than one State.
Beyond that, the program involves a national allowance trading system.
Thus, determination of compliance with the program must occur using a
coordinated national program. For these reasons, EPA believes that
implementation of this program through part 70 permits would be
inappropriate and that these applicable requirements need not be
contained in operating permits. Focusing implementation of this
regulation through EPA conserves resources, promotes efficiency and
avoids possible misunderstandings.
(2) National Recycling and Emission Reduction
Program--Section 608. The EPA believes that the regulations
promulgated pursuant to section 608 of title VI are applicable
requirements that should be included in operating permits (40 CFR 82,
Subpart F, 58 FR 28660), because inclusion of those requirements in
part 70 permits will facilitate their implementation and enforcement.
Inclusion of these requirements in part 70 permits, however, does not
diminish EPA's authority to enforce section 608 directly.
On May 14, 1993, EPA promulgated final regulations pursuant to
section 608 of the Act. These regulations require recycling of
ozone-depleting refrigerants which are recovered during servicing of
non-motor vehicle air conditioning or refrigeration equipment. The
rules also require recycling during disposal of all air conditioning
and refrigeration equipment. In addition, the regulations establish
certain service practices which reduce emissions of refrigerants and
provide for training and certification of the technicians who service
air conditioners and refrigeration equipment. A source is in the best
position to ensure that any disposal or repair work done at the source
is done only by technicians who are properly certified. In addition,
part 70 requires a compliance certification signed by a responsible
official. Inclusion of the section 608 requirements in the part 70
permit will assist enforcement of these regulations by allowing
permitting authority enforcement officials to investigate and monitor
compliance with the requirements of this program.
(3) Servicing of Motor Vehicle Air Conditioners--Section 609.
The EPA believes that the regulations promulgated under section 609 of
title VI should be in part 70 permits to facilitate implementation and
enforcement of those regulations. Inclusion of those requirements in
a part 70 permit does not diminish EPA's authority to enforce
section 609 directly.
On July 14, 1992, EPA promulgated final regulations pursuant to
section 609 of the Act (40 CFR 82, Subpart B, 57 FR 31241). These
regulations prescribe standards and requirements for servicing motor
vehicle air conditioners. The regulations also require certification
for service technicians who repair or service motor vehicle
air-conditioning units. Technicians must be certified to use approved
equipment to recover and recycle certain refrigerants. The
regulations also prohibit the sale of small containers (under 20
pounds) of ODS to anyone except certified technicians.
Many part 70 sources have company cars or fleets of motor
vehicles. The need for motor vehicle air conditioner maintenance and
service is routine and foreseeable. In addition, technicians who
perform the MVAC repair and maintenance are usually either employees
of the part 70 source or independent contractors. The source is in
the best position to ensure these technicians are properly certified
before performing any work. The EPA believes that including
section 609 requirements in operating permits will enhance compliance
with these requirements by requiring a compliance certification signed
by a responsible official.
(4) Nonessential Products Containing
Chlorofluorocarbons--Section 610. On January 15, 1993, EPA
promulgated final regulations which prohibit the sale and
distribution, or offer of sale or distribution, of certain
"nonessential" products into interstate commerce which contain or were
produced with CFC's after specified dates (40 CFR 82, Subpart C,
58 FR 4768). On December 30, 1993, EPA promulgated final regulations
which prohibit the sale and distribution, or offer of sale or
distribution, of certain "nonessential" products into interstate
commerce which contain or were produced with hydrochlorofluorocarbons
(HCFC) after specified dates (40 CFR 82, Subpart C, 58 FR 69637).
Examples of "nonessential" products are cleaning fluids for
noncommercial photographic or electronic equipment. These rules
involve the movement of certain items into interstate commerce, not
the emission of pollutants from stationary sources. The EPA believes
that the operating permit program was not intended to implement and
enforce these types of provisions, and that the section 610
regulations are more appropriately implemented and enforced nationally
by EPA, therefore, EPA believes that section 610 applicable
requirements need not be contained in operating permits.
(5) Labeling--Section 611. On February 11, 1993, EPA
promulgated final regulations establishing labeling requirements for
products manufactured with ODS, products that contain these
substances, and the physical containers of these substances (40 CFR
82, Subpart E, 58 FR 8136). These products must contain a conspicuous
"warning label" which clearly informs the reader that the product
contains (or was manufactured with) substances which harm "* * *
public health and the environment by destroying ozone in the upper
atmosphere * * *" (40 CFR 82.106). The warning label requirement does
not necessarily apply to particular facilities, but instead applies
more generally to the company which produces covered products.
Inclusion of these requirements in a part 70 permit could thus be
inappropriate or at least unnecessary. Accordingly, EPA believes that
there is no significant benefit to including these requirements in
part 70 permits and proposes that they not be included.
(6) Safe-Alternatives--Section 612. On March 18, 1994, EPA
issued final regulations pursuant to section 612 of the Act
establishes a program to identify, evaluate, and, if warranted,
regulate substitutes for ODS (40 CFR 82, Subpart G, 59 FR 13044).
This program is called the Significant New Alternatives Policy (SNAP)
program and is intended to facilitate the switch to
non-ozone-depleting chemical substitutes. The EPA believes that this
program cannot be implemented via operating permits because EPA is
charged with judging the acceptability of non-ozone-depleting chemical
substitutes. This function must be performed at the Federal level to
provide for national consistency. However, operating permits may
refer to the SNAP list of acceptable ODS alternatives in order to
provide maximum flexibility under regulations promulgated under
sections 608 and 609.
The EPA reserves the right to determine through future rulemaking
that the applicable requirements of title VI it today proposes to not
include in part 70 permits be included if evidence arises indicating
that such applicable requirements should be contained in operating
permits. Similarly, EPA may determine in future rulemaking that the
applicable requirements of sections 608 and/or 609 need not be
contained in operating permits.
2. Administrator
In several places in part 70, a change is made where reference is
made to the Administrator to reflect that the appropriate reference
should be "his or her" instead of "his."
3. Deletion of "Section 502(b)(10) Change" Definition
The definition of "Section 502(b)(10) changes" is being deleted
since the provisions using that term are being revised such that the
term is no longer needed. Refer to the previous discussion of the
revisions proposed to be made to the permit revision procedures in
section 70.7.
4. Addition of Major NSR and Minor NSR Definitions
Definitions of "major new source review" and "minor new source
review" are being added so they can be used in describing the proposed
revised permit revision procedures. Since the various processes by
which permits would be revised under the proposed four-track system
often would depend on whether the change had been previously subject
to major or minor NSR, it is critical to define these terms.
5. Major Source Definition
a. SIC Codes for Hazardous Air Pollutants (HAP's) Sources.
Today's proposal would change the definition of major source in
part 70 to conform to the definition in section 112(a) of the Act and
implementing regulations governing HAP's sources recently promulgated
in 40 CFR part 63. Under the current definition of "major source" in
part 70, a stationary source or group of stationary sources located
within a contiguous boundary and under common control would be
considered to be a major source only if those stationary sources
belong to the same two-digit SIC code. However, in section 112 of the
Act and 40 CFR part 63 there is a somewhat broader definition of major
source of HAP emissions (see 40 CFR 63.2). "Major source" is defined
in part 63 as any stationary source or group of stationary sources
located within a contiguous boundary and under common control that
emits (or has the potential to emit, considering controls) above a
threshold level of HAP's, regardless of SIC code commonality.
As currently written, part 70 requires some, but not all, sources
considered major under part 63 to obtain a part 70 permit. Unless the
part 70 definition is revised as proposed, there will likely be some
sources that are major for purposes of part 63 but not major for
purposes of part 70. These sources could be subject to a section 112
standard or other requirement, but under the current rule would not
have to apply for and obtain a part 70 permit until required to do so
by a specific section 112 standard. Section 501 of the Act defines
major source for title V purposes as, among other things, major
sources as defined in section 112 of the Act. Section 502(a) requires
that all major sources obtain permits. Since EPA has defined
section 112 major sources in part 63, there is no basis for a
different definition in part 70. Moreover, EPA believes the
implementation of section 112 will be enhanced if it is clear from the
start that any source that would be major under part 63 must apply for
a part 70 permit within 12 months (or a shorter time designated by the
permitting authority) of becoming subject to the part 70 program.
Therefore, today's notice proposes to change the definition of major
source in part 70 to include all sources defined as major in part 63.
b. Fugitive Emissions. The current definition of "major source"
in part 70 requires sources to count fugitive emissions in determining
major source status for PSD and nonattainment NSR purposes, when the
source is subject to a standard promulgated under section 111 or 112
of the Act, regardless of when the standard was established. In
previous rulemaking under section 302(j), EPA has determined that
fugitive emissions for purposes of NSR are to be counted for sources
in categories subject to section 111 or 112 standards that were
established prior to August 7, 1980. One petitioner asserts that EPA
may not require that fugitives be counted in determining NSR major
source status for sources in categories subject to section 111 or 112
standards promulgated on or after August 7, 1980 without conducting
future rulemaking under section 302(j).
The EPA agrees that it did not follow the procedural steps
necessary under section 302(j) to expand the scope of sources for
which fugitives must be counted in making NSR major source
determinations. Today's proposed revision would thus change paragraph
(2)(xxvii) of the definition of "major source" such that only a source
belonging to a source category subject to a section 111 or 112
standard issued prior to August 7, 1980 would be required to count
fugitive emissions of the pollutant regulated by that standard in
determining if it were major for NSR purposes. States would not be
required to provide that a source belonging to source category subject
to a section 111 or 112 standard promulgated after August 7, 1980
include fugitive emissions of the relevant pollutant in its
calculation of NSR major source status, unless and until EPA conducts
future section 302(j) rulemaking (except where such a source would
qualify as a support facility; see discussion below).
With respect to determinations of major source status under
section 112, EPA believes the Act requires that fugitive emissions, to
the extent quantifiable, be counted. The section 112(a)(1) "major
source" definition is distinguishable from the part C and part D
definitions of major source in some important respects.
Section 112(a)(1) uses the term "major source" as opposed to "major
stationary source," and legislative history indicates an intent to
treat this definition as distinct from the section 302(j) "major
stationary source" definition. The Senate Committee Report states
that "[t]he concept of 'major source' is not used in the current
regulatory regime for hazardous air pollutants and, thus, a definition
of 'major source' ne[e]ds to be added to section 112. The definition
established here will only apply in the context of this section and
should not be confused with other meanings of the term 'major source'
in [parts C and D] of the Act" (S. Rep. No. 228, 101st Cong., 1st
Sess. 150-51 (1989)). Moreover, section 112 establishes a new
regulatory program the focus of which is specific hazardous air
pollutants at source categories to be determined by EPA. All this
suggests that the section 302(j) rulemaking requirement does not apply
in the context of section 112, and that fugitive emissions must
therefore be included for purposes of determining whether a source is
major under section 112(a)(1).
The current part 70 rule requires that fugitive emissions be
included in the determination of major sources of section 112
pollutants under paragraph (1) of the definition of "major source,"
although EPA acknowledges that the existing language may be unclear in
this respect. In paragraph (1)(i) of the definition of "major
source," therefore, the words "including fugitive emissions" are
proposed to be added to clarify that fugitive emissions of any
hazardous air pollutant listed in section 112(b) of the Act must be
counted in calculating the source's emissions to determine if the
source is major under section 112(a)(1).
Pollutants for which a standard has been set under section 112
after August 7, 1980 are included in the list of HAP's in
section 112(b) of the Act. Fugitives for those pollutants must thus
be counted in determining whether a source is major under paragraph
(1)(i) of the part 70 definition of "major source."
For further analysis of when fugitives must be counted in making
major source determinations under the Act, see in the docket for this
rulemaking (A-93-50) the March 8, 1994 memorandum, "Consideration of
Fugitive Emissions in Major Source Determinations" from Lydia Wegman,
Deputy Director, Office of Air Quality Planning and Standards to EPA's
Regional Office Air Division Directors.
c. Support facility. A clarification of the definition of
"major source" is proposed to reflect EPA's intention with respect to
including the emissions of support facilities when determining if a
source is major. The preamble to the part 70 proposal states that "*
* * any equipment used to support the main activity at a site would
also be considered as part of the same major source regardless of the
2-digit SIC code for that equipment" (56 FR 21724). The discussion
goes on to indicate that greater than 50 percent of the output of the
support equipment would have to be dedicated to a source to be
considered as part of the same major source. The proposed
clarification would establish the term "support facility" and specify
that emissions from such a facility would be included with the source
it is supporting if 50 percent or greater of its output were dedicated
to that source.
6. Potential to Emit
The current definition of "potential to emit" in part 70 refers
to limitations enforceable by the Administrator. Several petitioners
pointed out that federally-enforceable potential to emit limits are
enforceable under the Act by the Administrator and by citizens. The
Administrator agrees, and thus proposes to revise the definition so
that limitations are considered in determining a source's potential to
emit if they are enforceable by the Administrator and citizens under
the Act.
7. Responsible Official
The definition of "responsible official" is proposed to be
revised to allow a person other than the designated representative to
be the responsible official for activities not related to acid rain
control at affected sources. The reason for this proposed change is
that the nature of the responsibilities of a designated representative
(e.g., performing allowance account transactions) has prompted many
owners and operators of affected sources to select corporate
personnel, in lieu of site personnel, to act as their designated
representative. Such persons, though, may not be in the best position
to handle title V duties not related to acid rain. This revision,
therefore, would allow sources to designate the appropriate individual
to carry out each responsibility. Procedurally, the designated
representative would still be responsible for signing all documents
relating to acid rain (e.g., the acid rain permit applications and
revision requests) and would be authorized to submit them directly to
the permitting authority for action without the consent of the
non-acid rain responsible official. Similarly, the non-acid rain
responsible official may carry out responsibilities not related to the
acid rain program without the consent of the designated
representative.
8. Title I Modification
As previously discussed, the failure of the current rule to
define the phrase "modification under any provision of title I of the
Act," has caused confusion and controversy. The EPA is thus proposing
today to add a new definition of "Title I modification" or
"modification under any provision of title I" to specify that it
includes minor NSR actions.
B. Section 70.3--Applicability
1. Part C and D Sources
Section 502(a) of the Act includes in the list of sources
required to obtain a permit "* * * any other source required to have a
permit under part C or D of title I. * * *" Although this category
was not specifically mentioned in section 70.3(a), EPA notes that
sources required to obtain a permit under part C or D of the Act are
also major sources which are subject to part 70. Today's proposal
would add a separate item to section 70.3(a) with respect to sources
required to obtain permits under parts C and D to make it parallel
with the Act.
2. Nonmajor Sources
Sections 70.3(a) (2) and (3) of the current part 70, as part of
the list of sources that must obtain permits under part 70, refer to
any source, including an "area" source subject to a standard,
limitation, or other requirement under sections 111 and 112 of the
Act, respectively. Section 70.3(b)(1) then refers to sources that are
not major being eligible for an exemption from permitting.
Essentially, "area source" and "nonmajor source" mean the same thing
for purposes of part 70 and language is proposed to be added to Secs.
70.3(a) (2) and (3) to clarify this point.
3. Section 112(r) Pollutants
Currently, section 70.3(a)(3) requires any source subject to a
standard or other requirement under section 112 of the Act to obtain a
part 70 permit unless it would be subject to part 70 solely because it
is subject to regulations or requirements under section 112(r).
Section 112(r)(3) requires EPA to promulgate a list of regulated
substances and thresholds for the prevention of accidental releases.
Section 112(r)(4) establishes criteria for the development of the list
of regulated substances, focusing on acute effects which result in
serious off-site consequences, rather than chronic effects. As a
result, many of the substances that EPA listed in 40 CFR 68.130
pursuant to section 112(r)(3) (59 FR 4478 (January 31, 1994)) are not
regulated elsewhere under the Act.
Questions have been raised as to whether section 70.3(a)(1),
which provides that "any major source" is subject to the permit rule,
requires that sources that have major source levels of section 112(r)
pollutants must be permitted. Setting aside the issues of whether and
how major source status is to be determined for section 112(r)
purposes, section 112(r)(7)(F) exempts from title V permitting
requirements any source that would be subject to title V only as
result of being subject to section 112(r) requirements. That
section provides that "[n]otwithstanding the provisions of title V or
this section, no stationary source shall be required to apply for, or
operate pursuant to, a permit issued under such title solely because
such source is subject to regulations or requirements under this
subsection." It is thus clear that even if a source could be
considered a "major source" for section 112(r) purposes, it would not
be subject to title V permitting on that basis alone. The EPA
proposes to revise section 70.3(a) to clarify this point.
C. Section 70.4--State Program Submittals and Transition
1. Group Processing
The reference in section 70.4(b)(3)(xi) to the 180-day time limit
for group processing of minor permit modifications is proposed to be
deleted since the proposed minor permit revision provisions would make
it no longer applicable. See the discussion above on the proposed
changes to the permit revision provisions.
2. Judicial Review Time Period
Section 70.4(b)(3)(xii) in the current part 70 requires that a
program may allow a period of no more than 90 days for filing
petitions for judicial review after a final permit action or after new
grounds for review arise. Several petitioners pointed out that the
90-day limit is shorter than that provided by some State or local
statutes. They argued that it is inappropriate for the Federal
Government to be requiring shorter statutes of limitation than those
provided by State or local law.
The Agency included the 90-day limit in the current rule to
ensure the finality of permit terms and conditions. Without such a
limit, challenges to permit terms and conditions would likely take
place in the context of enforcement actions, thus undercutting the
title V purpose of improving the enforceability of Act requirements.
The Act itself contains such a limit on judicial review of EPA rules
(see section 307).
At the same time, EPA wants to build on, and not unnecessarily
disrupt, State and local programs. The Agency believes that a
judicial review time limit of 125 days from the date a permit is
issued or revised would not require any State or local agency to
revise applicable State or local statutes of limitation. Lengthening
the period for obtaining judicial review to 125 days should not
significantly undermine the goal of obtaining finality. The Agency
thus proposes to revise the current rule to extend the allowable
judicial review period to 125 days. As under the current rule,
permitting authorities would be free to establish shorter time
periods.
3. Program Revision
Section 70.4 of the current rule contains provisions governing
when and how operating permits programs are to be revised. As
explained in section 70.4(i), State or local programs may need to be
revised when the relevant Federal or State or local statutes or
regulations are revised. Today's notice proposes a number of
revisions to the Federal regulations establishing the minimum elements
of operating permits programs that, if promulgated, will require
revisions of those permit programs. In this section of the preamble,
EPA is also proposing a few changes to the provisions that will govern
permitting authority efforts to revise their programs.
The Agency proposes to consolidate the provisions governing
operating permits program revisions in section 70.4(i) and to set
deadlines for submission of program revisions to EPA for approval.
Specifically, EPA proposes to delete the second sentence of
section 70.4, which requires permitting authorities to submit permit
program revisions as needed in response to part 70 revisions within 12
months of EPA promulgating the part 70 revisions or such other time as
the Administrator authorizes. That sentence would be replaced by
deadlines established in section 70.4(i) for submission of various
types of program revisions to EPA.
Where a permitting authority could revise its program to comport
with part 70 revisions without changing State or local law or
regulations, the permitting authority would be required to submit its
revisions within 180 days of the publication of the part 70 revisions.
Where a change in State or local regulations were needed, the
permitting authority would have up to 12 months to submit the
revisions. Where statutory changes were needed, the permitting
authority would have up to 2 years to complete the necessary changes.
Notwithstanding these deadlines, the Administrator could set other
deadlines as appropriate. This graduated series of timeframes
reflects the probable effort needed by State and local agencies to
accomplish different types of program revisions. Where State
legislatures meet only every 2 years, however, 2 years may not be
enough time. The Administrator could provide a longer timeframe in
such an instance under the proposed revisions to section 70.4(i).
4. Savings Provision
Several State and local permitting authorities have raised
questions and concerns about the effect that revisions to part 70 will
have on the Agency's approval of operating permits programs that were
developed in light of the current rule. While a number of State and
local authorities have yet to submit their part 70 programs to EPA for
approval, many have submitted their programs and all State and local
authorities have relied on the current rule in designing their
programs. Many permitting authorities have expressed the concern that
if EPA were to base program approval decisions on the revised part 70,
most if not all submitted programs would be disapproved.
The Agency recognizes this timing concern and is proposing a new
paragraph (j) to be added to section 70.4 to govern how submitted
programs that were developed based on the current part 70 would be
reviewed by EPA after promulgation of the part 70 revisions. The
proposal would allow State and local agencies to submit programs based
on the current part 70 for up to 6 months after promulgation of the
revised part 70. The EPA would then evaluate those programs under
part 70 as originally promulgated. The permitting authority could
also request that its program, or portions of it, be judged against
the revised part 70.
Programs receiving approval based on the originally promulgated
part 70 would still have to be revised to conform with the revised
part 70 in accordance with the schedule being proposed in
section 70.4(i) for program revisions. Programs submitted after the
6-month period would be evaluated against only the revised part 70.
The EPA believes it may provide for such "grandfathering" of
permit programs developed and submitted pursuant to part 70 as
originally promulgated (see Sierra Club v. EPA, 719 F.2d 436 (D.C.
Cir. 1982), cert. denied, 468 U.S. 1204 (1984) and memorandum from
Gerald Emison, June 27, 1988, "Grandfathering of Requirements for
Pending SIP Revisions"). First, the proposed changes to the part 70
provisions for permit revisions would represent a significant
departure from the regime under which permitting authorities are
currently required to develop programs. Permitting authorities will
need adequate time to develop program revisions consistent with the
new requirements and could not reasonably be expected to convert their
programs to the new system immediately. Second, EPA recognizes that
the process for developing part 70 programs is time-consuming, and
does not wish to inadvertently punish State and local agencies that
have relied on the existing rule in developing programs for submittal
to EPA. Third, EPA does not believe there is a strong statutory
interest in applying the revised part 70 immediately upon
promulgation, especially where State and local agencies have developed
and submitted programs in good faith based on the current rule.
Other reasons also strongly support a 6-month transition period.
Some State and local agencies may be submitting initial part 70
programs in 1995. To require review of those programs under the
revised part 70 could result in imposition of a Federal program since
programs submitted based on the current part 70 would not likely be
approvable under the proposed revised part 70. The proposed 6-month
grandfathering period allows EPA a reasonable opportunity to approve
programs developed under the current part 70 and avoid unnecessary
imposition of a Federal program.
The EPA solicits comment on the appropriateness of the proposed
grandfathering provision and the adequacy of a 6-month period
following promulgation during which permitting authorities could
submit programs based on current part 70. The EPA also solicits
comment on the need for grandfathering considering other options that
could be provided, such as postponing the effective date of the
revised part 70 (as discussed in the following section).
5. Phase In of New Requirements
As previously discussed, to accommodate the workload associated
with making regulatory and legislative changes, EPA proposes to allow
permitting authorities a period of up to 2 years after promulgation of
part 70 revisions to submit revisions of their part 70 programs. This
is of particular importance because revisions to part 70 are likely to
occur in two or more phases and, in addition, many permitting
authorities will have to develop and submit program revisions to
address deficiencies identified through the interim approval process.
Most State and local agencies would like the effect of these revised
part 70 provisions and the next series of revisions to be phased in
such a way that existing programs are not disrupted.
The EPA believes that avoiding undue disruption to State and
local programs is important to program continuity and helps reduce
uncertainty. The EPA also believes that there is sufficient
flexibility in the Act (particularly after a permit program meeting
the current part 70 is in place) to provide for a reasonable
transition to the revised procedures for permit revisions and any
changes in the requirements relating to the content of issued permits.
This issue as it pertains to changes in permit content is not critical
with respect to today's proposal since it would not impose significant
new permit content requirements. In subsequent rulemaking, however,
EPA may address one or more aspects of permit content. The EPA
solicits comment on how specifically to balance the need to implement
revisions to part 70 expeditiously with the need to avoid undue
disruption of State or local programs submitted under the current
part 70. For changes in permit content requirements, any approach to
balance these needs should minimize the workload that would be
required to reopen and reissue permits before their renewal and to
expedite the required updates to permits at the first convenient time.
One possible approach to upgrading permit content would be to
defer generally the incorporation of new, more restrictive
requirements created by revisions to part 70 until renewal of issued
part 70 permits. Another approach would be, after the effective date
of the revised State or local program but before the permit renewal
date, for permit revisions processed through the significant permit
revision process to include during that process incorporation of the
additional requirements created by the part 70 revisions. In all
cases, the permit shield would not preclude EPA, citizens, and the
permitting authority from enforcing any applicable requirement to
which the source would be subject outside the part 70 permit.
The EPA solicits comment on these suggested approaches to phasing
in new permit content requirements and the legal basis for them. With
regard to new permit revision procedures, EPA is not today proposing
to allow permitting authorities to phase them in. However, EPA
solicits comment on the need to provide such relief. The EPA solicits
comment on whether such relief is needed to address potential adverse
impacts to permitting authorities. The Agency believes that there are
widely differing State and local situations for implementing the new
permit revision procedures. If this is of concern, one approach that
promotes equitable treatment of these different situations is to
prescribe, as previously outlined, varying deadlines for the submittal
of program revisions depending on how difficult it is to development
them (e.g., 12 months for a State or local agency to accomplish
rulemaking which does not itself require prior changes to enabling
legislative authority). Another approach would be to establish one
date by which all agencies would have to implement the new permit
revision procedures. Permit issuance, renewal, or revision would be
subject to the permitting authority's existing part 70 program until
implementation of the new requirements by the agency, which could be
before but not after the national date. Setting such a date would
create national consistency, but would require that all permitting
authorities act in time for EPA to approve their programs by the date.
The EPA solicits comment on this approach and what any such date
should be.
In addition to the concern over impacts to permitting
authorities, the Agency is also concerned with the potential
transitional problems for sources. Sources may include in their
permit applications, and have adopted into their permits, terms and
conditions designed with an understanding of which permit revision
tracks would be used to process changes at their facility and what
other changes would qualify for off-permit treatment. Such sources
may wish, and need the opportunity, to redesign their permit terms and
conditions when the proposed four-track permit revision system is
adopted by the permitting authority, if the new permit revision system
is not phased into effect. The EPA solicits comment on whether
additional relief should be provided for sources that find themselves
in this situation.
6. Processing Time for Early Reductions
A minor change is proposed with respect to permitting authority
action on permit applications containing early reduction
demonstrations. In the current part 70 at section 70.4(b)(11)(iii),
State and local programs are required to include a transition plan
providing final action within 9 months on any complete, initial permit
application containing an early reductions demonstration (pursuant to
section 112(i)(5) of the Act). Today's proposal would revise the
interval for final action on such applications to 12 months. Although
it is imperative that sources participating in the Early Reductions
Program receive timely action on their permit applications, the
original 9- month action requirement would in many cases be too short
for adequate processing of the permit application by the permitting
authority, especially considering the time needed for public review of
draft permits. The proposed 12-month final action requirement would
be consistent with a similar requirement for action on specialty
permit applications under proposed 40 CFR part 71 subpart B, which
provides for interim Federal issuance of specialty title V permits to
sources participating in the Early Reductions Program until permitting
authorities can begin issuing permits to such sources.
The 12-month period for final action on applications containing
early reductions demonstrations also has been proposed as a
requirement under section 70.7(a)(2). This change is necessary
because permit applications (or applications for permit revision)
under the Early Reductions Program may continue to be received by the
title V permitting authority well after the transition period
(possibly until around the year 2000), and these later applications
must be processed just as quickly as those submitted during the
transition period.
D. Section 70.5--Permit Applications
1. Complete Application
Section 70.5(a)(2) of the current rule provides for criteria and
procedures for determining when a permit application is complete. It
specifies that unless the permitting authority determines that the
application is not complete within 60 days of receiving it, the
application is deemed complete.
In response to a concern raised by one of the permits case
petitioners, EPA wants to clarify that the permitting authority may
deem an application complete if it contains the information needed for
the permitting authority to begin processing the application. The
application should contain the information it is required to contain
under section 70.5(c), but the permitting authority need not ensure
that the application contains all of the information that the
permitting authority ultimately finds necessary to issue a permit.
Consistent with its original intent, section 70.5(a)(2) is today
proposed to be revised to provide expressly for the permitting
authority to deem complete an application which contains information
sufficient to allow the permitting authority to begin processing the
application.
The proposal would allow the permitting authority considerable
flexibility to obtain additional information in recognition of the
fact that it and sources are likely to discover the need for
additional information as the permitting process progresses and that
information to address certain applicable requirements (particularly
those with future compliance dates) will only be available in the
future. While section 70.5(c) requires that a part 70 permit
application for a subject source comprehensively address all
applicable requirements of the source, the permitting authority under
today's proposal would retain considerable discretion in deciding the
amount of information needed for the completeness determination. The
following illustrates the degree of flexibility that EPA believes
would be available.
Under the proposed rule revisions, a permitting authority could
provide that an application for a source with an applicable
requirement with a future compliance date is complete enough for
processing if it contains (1) a statement acknowledging the
applicability of the requirement, and (2) an acceptable schedule for
submitting the more detailed information necessary to define its
compliance. This approach would allow the source to defer the
submittal of information that is not otherwise required at this time
and that may be based on complicated control choices still open to the
source. Such an approach for applications would be similar to EPA's
proposed approach for incorporating MACT standards into part 70
permits (see section III.E.9. of this preamble).
In addition, a permitting authority would have the flexibility to
make completeness determinations consistent with its approved
transition plan. That is, permitting authorities could require
sources scheduled for permit issuance in years 2 and 3 of the initial
phase-in of their program to submit less detailed applications than
those sources scheduled for permit issuance in the first year,
provided that the minimum requirements of section 70.5(c) are met and
that the required information is subsequently submitted to the
permitting authority to allow permit issuance consistent with Secs.
70.7 and 70.8. Such an approach again would meet the requirements of
section 70.5(a) as well as assure needed flexibility to State and
local agencies as they start up their approved part 70 programs.
The EPA solicits comment on its proposal to allow these options
for allowing additional flexibility to permitting authorities in
determining complete applications after certain minimum criteria are
met. In particular, the Agency is interested in receiving comment on
how well its proposal addresses concerns over application content
during the initial phase-in of State and local programs.
2. Identification of Units
An addition to section 70.5(c)(7) is proposed to make it
consistent with the proposed permit revision procedures. Under the
proposed change, a permit application would identify any units that
were eligible for emissions trading or were eligible for the de
minimis permit revision process. See the discussion above on proposed
permit revision procedures under section 70.7.
3. Compliance Information
Section 503(b) of the Act requires that a sources include in its
permit application a compliance plan describing how it will comply
with the applicable requirements to which it is subject and including
a schedule of compliance. The current rule implements that provision
at section 70.5(c)(8) by requiring that a source submit a compliance
plan and schedule that for requirements with which the source is
already in compliance, a statement to that effect, and for
requirements to which the source will first become subject during the
permit term, a statement that the source will comply with those
requirements.
State petitioners in the permits case expressed concern that the
rule might be read to prohibit permitting authorities from requiring
compliance plans and schedules that contained more information and
enforceable milestones than those required by the rule. The Agency
wishes to make clear that the permits rule in general, and the
compliance plan and schedule provision in particular, only establish
minimum requirements for State or local permit programs. State and
local permitting authorities are free to prescribe more stringent
permitting requirements, including more extensive compliance plan and
schedule requirements.
E. Section 70.6--Permit Content
1. Clarification of EPA's View on Referencing of Requirements
Petitioners have asked for clarification as to how much of the
permit content required by section 70.6 may be referenced rather than
be required to reside in the permit. The EPA did not address this
issue in the July 21, 1992 preamble; however, the Agency did respond
to comments on this issue in the "Technical Support Document for
title V Operating Permit Programs," May 1992, which is in public
docket number A-90-33 for the final part 70 rulemaking. In that
document, EPA states that emission limit, test method, and monitoring
and recordkeeping requirements should within reason be placed in the
permit, rather than referenced. The Agency also stated that
referencing may be appropriate, however, where the test method is too
cumbersome to be placed entirely in the permit.
To clarify its position on this issue, EPA notes that certain
elements must be included in the permit. Section 504(a) states that
each permit "shall include enforceable emission limitations and
standards" and "such other conditions as are necessary to assure
compliance with the applicable requirements." In addition,
section 504(c) requires each permit to "set forth inspection, entry,
monitoring, compliance certification, and reporting requirements to
assure compliance with the permit terms and conditions." The EPA
believes these provisions place limits on the type of information that
need not be contained in the permit and can be referenced. Clearly,
each emission limit with its basis of origin must expressly be
included in the permit. In addition, the permit must contain
monitoring, compliance certification, and reporting requirements
necessary to assure compliance with the emission limit.
A key principle, then, is that any referenced provision must not
interfere with the enforceability of other permit terms and
conditions. This means that the reference citation must be free of
ambiguity regarding applicability. Thus, requirements may be
referenced only where their applicability to the source is clearly
beyond dispute. Referencing should not allow enforcement of the
permit to be compromised, for example, by a defense by the source that
it is using an alternative provision in the referenced provision.
Such alternatives must be expressly included in the permit.
Current practices in some State and local permit programs would
clearly not meet this principle. Some State and local permits have
simply referenced the applicable requirement without expressly
including emission limitations, monitoring, reporting, and other
requirements. The EPA believes such a practice is inadequate to meet
the requirements of sections 504 (a) and (c). For example, it would
be insufficient to cite "Subpart VVV of the NSPS" as the applicable
requirement for a source without also restating in the permit the
emission limitations, monitoring requirements, the applicable test
method, or other compliance terms from the NSPS.
On the other hand, EPA recognizes that when used appropriately by
permitting authorities, referencing may support enforcement of permit
terms and meet the requirements of sections 504 (a) and (c). In
addition, referencing could help reduce the size of the permit and
eliminate the unnecessary restatement of technical procedures.
Referencing appears to be generally appropriate for (1) test
methods, (2) definitions, (3) startup, shutdown, or malfunction
requirements or plans, and (4) detailed emission calculation
protocols. For example, it would be appropriate for a permit to
require that testing be performed using EPA method 25, without
containing the detailed provisions of method 25, or the permit could
require that a source comply with startup, shutdown, and malfunction
requirements of the SIP and cite the section of the SIP containing
those requirements. It would not be appropriate, however, merely to
cite a regulation containing procedures for determining emission
limits, such as a process weight curve. The permit would need to
include the specific emission limit that applies to the source or unit
covered by the permit. It would have to include the results from the
procedure and could not simply cite the procedure itself. The EPA
solicits comment on other types of requirements for which referencing
would be appropriate.
The EPA also solicits comment on any criteria that would be
necessary for adequate citation of referenced requirements. One
possible criteria might be the date of the adopted rule being
referenced. The EPA solicits comment on an approach in which the
permit would cite the date of the referenced requirement, but also
would reference any subsequent revisions to the requirement. This
would provide for automatic updating of the referenced requirement
when test methods or other requirements residing outside of the permit
are revised, and avoid the need to revise the permit.
F. Section 70.7--Permit Issuance, Renewal, Reopenings, and Revisions
1. New Applicable Requirements
The July 21, 1992 preamble to the current rule (57 FR 32275)
included a discussion of EPA's intent to revise part 70 in the future
to provide for a system of grandfathering, whereby requirements that
are promulgated or approved late in the permit issuance or renewal
process may be incorporated into the permit after issuance or renewal.
This discussion was a response to concerns expressed by permitting
authorities late in the part 70 rulemaking process that the
promulgation of new requirements, particularly by EPA, could
significantly delay individual permit actions. Delay could occur
because of the part 70 requirement that any permit issued or renewed
must assure compliance with all applicable requirements, and because
incorporation of requirements promulgated during or after the public
comment period for permit issuance or renewal would require another
round of public and EPA review. These permitting authorities argued
that implementation of title V and the Act would be enhanced if the
permit could be issued on schedule and the new applicable requirements
be incorporated through a permit reopening.
While EPA was sympathetic to these concerns, it was not able to
take action in the final part 70 rule because the issue had not been
properly noticed in the proposal, nor had it been raised in comments
submitted during the comment period. However, permitting authorities
have continued to express these concerns to EPA since promulgation of
part 70. The EPA is therefore taking this opportunity to propose
revisions to part 70 that would address this concern.
Since promulgation of the current part 70, EPA has learned that
the potential for delay is even greater than anticipated due to the
fact that the majority of States must, as a matter of State
constitutional law, conduct rulemaking to adopt a Federal standard
before incorporating the standard into the permit. Although the time
associated with administrative rulemaking varies among State and local
agencies, the need for this additional step could typically add
several months up front before the permitting authority could issue a
draft permit reflecting the new requirement.
Today's notice proposes a system in a new section 70.7(a)(7)
similar to, though less complex than, that discussed in the July 21,
1992 preamble. The proposal would allow requirements promulgated or
approved by EPA following the issuance of the draft permit to not be
incorporated in the version of the permit that is subsequently issued
and effective. The proposal would place two conditions on this.
First, the permitting authority would have to commence action prior to
issuance of the permit to reopen the permit to incorporate the new
requirements. This reopening process and subsequent reissuance of the
permit would have to be completed within 18 months of approval or
promulgation of the new applicable requirement as required by
section 70.7(i). Second, the permit that is issued must indicate that
the permit is being reopened for this purpose.
The EPA believes this approach is consistent with the Act.
Section 504(a) requires that each permit include conditions necessary
to assure compliance with applicable requirements. Today's proposal
reduces the likelihood of delayed issuance of permits. By allowing
the issued permit to address only the requirements that were
applicable at the time of draft permit issuance, these requirements
will be reflected in an effective part 70 permit sooner than would be
the case if part 70 procedures had to be repeated to incorporate the
new requirements.
This potential for delay is increased for those permitting
authorities that must first conduct rulemaking before procedures to
incorporate the new requirement can begin. Conceivably, this delay
could be repeated numerous times. This clearly would frustrate the
purposes of section 504(a) if the permitting authority's ability to
issue an effective part 70 permit were hampered in this way. By
removing this obstacle, the proposed rule would also further the
purposes of section 502(b)(6), which requires that permit issuance
procedures be "expeditious," as well as section 503(c), which requires
that permit actions be completed within 18 months.
This approach is also consistent with section 502(b)(9) of the
Act, which requires that a permit be reopened to include requirements
promulgated by the EPA "after the issuance" of a permit. Although
this could be read to imply that requirements promulgated before
permit issuance must be included in the permit before issuance of an
effective permit may occur, the EPA believes the term "issuance," as
used in this provision, may also be read to refer to issuance of the
draft permit. This reading results in a more rational system for
incorporation of new requirements, and avoids the delays referred to
above that would frustrate the purposes of title V.
An additional benefit of today's proposal is that it is
consistent with an overarching principle of the Act that
implementation should rest primarily with the State and local
governments. Today's proposal would provide a better accommodation
between specific part 70 requirements and State constitutional due
process concerns.
The EPA notes that permitting authorities may be more stringent
with regard to incorporation of new requirements than this proposal
would provide, and must, pursuant to section 70.5(a)(2), have
authority to request additional information necessary to take final
action on the permit. This latter authority should allow the
permitting authority to require incorporation of newly applicable
requirements not reflected in the permit on a case by case basis.
2. Denial of Permits to Noncomplying Sources
One of the concerns raised by State litigants in the permits case
was the rule's possible effect on a permitting authority's ability to
deny permits to sources that are not in compliance with applicable
requirements. These litigants noted that the rule does not explicitly
authorize permitting authorities to deny permits to noncomplying
sources and might thus be read as not allowing them to do so. They
pointed out that some State and local statutes forbid the issuance of
permits to noncomplying sources and that other permitting authorities
generally have discretion under State or local law to deny permits to
such sources. The ability to deny permits to noncomplying sources,
they argued, was important to the enforcement of clean air rules.
The Agency believes that the current rule does not prohibit or
prevent permitting authorities from exercising their discretion to
deny permits to noncomplying sources. The rule sets forth minimum
criteria governing the issuance of permits, but it does not require
that permitting authorities issue permits when only these requirements
are met. Section 70.7(a) provides that "[a] permit * * * may be
issued only if all of the following conditions have been met"
(emphasis added), indicating that the permitting authority has
discretion to not issue a permit even when all of the requisite
conditions have been met. As EPA explained in the preamble to the
current rule, one of the Agency's guiding principles in implementing
title V was to build on State and local programs and not unnecessarily
disrupt them. The Agency is particularly reluctant to reduce existing
State or local authority to take measures to bring sources into
compliance with applicable requirements and believes that the current
rule does not affect such State or local authority. The EPA notes
that permitting authorities following this approach must do so
consistent with Federal law. Where a permitting authority denies an
application for a part 70 permit, it is in effect ordering the source
to cease operations or risk an enforcement action under the Act.
At the same time, EPA believes that one of the benefits of the
permit issuance process is to provide an opportunity for a permitting
authority and a noncomplying source to work out a plan for bringing
the source into compliance. The statute and rule explicitly provide
that a permit application include a source's proposed schedule of
compliance, which the statute defines as a schedule of "remedial
measures" leading to compliance with applicable requirements. The
statute and rule thus contemplate that permits can and generally will
be a vehicle for bringing sources into compliance. While permitting
authorities retain discretion to deny permits to noncomplying sources,
EPA expects that permitting authorities will generally use permits to
provide a schedule of enforceable measures that will lead to
compliance as opposed to a sanction against noncompliance. The
current rule and statute's provision for compliance schedules in no
way limits the liability of the source under the Act while the
violation continues during the schedule of remedial measures.
Obviously, most permits with a compliance schedule will be accompanied
by a settlement of an enforcement action addressing the violation.
The Agency believes that appropriate exceptions to this approach
include where State or local law prohibits issuing permits to
noncomplying sources or where a source's noncompliance is longstanding
or otherwise egregious.
3. Permit Revocation Procedures
State litigants also expressed concern that the current rule may
require that permitting authorities use permit issuance procedures to
revoke permits. They noted that many State or local statutes
authorize the use of faster proceedings to revoke the permits of
sources found in noncompliance and that the availability of such
procedures contributes to the effectiveness of State and local
enforcement efforts. They urged that part 70 not constrain permitting
authority ability to use such faster proceedings.
The Agency believes that part 70 does not address the issue of
what procedures a permitting authority must use when it seeks only to
revoke a permit, as opposed to revoke and revise or reissue a permit.
Section 70.7(f)(1) requires that every permit contain provisions
specifying when the permit will be reopened prior to the end of its
term, including when EPA or the permitting authority determines that
the permit must be "revised or revoked" to assure compliance with
applicable requirements. Section 70.7(f)(2) provides that proceedings
to "reopen and issue" a permit shall follow permit issuance procedures
(emphasis added). Accordingly, although one of the reasons for permit
reopening is revocation, the requirement to use permit issuance
procedures only applies when the permitting authority wants to reissue
the permit. The rule is silent with regard to the procedures that
must be used to only revoke a permit.
Again, EPA's approach to the permits rule has been to avoid
unnecessary interference with the way State and local agencies
implement their air pollution control programs. The Agency believes
there is no reason to require a permitting authority to undertake
permit issuance procedures if its only objective is to revoke a
permit. The Agency expects that permitting authorities will rarely
seek to only revoke and not also reissue a permit, given the
consequences of permit revocation on the source. At the same time, it
recognizes that permitting authorities have legitimate reasons for
wanting to retain the authority they now have to revoke permits using
expedited procedures. The Agency thus believes that the rule is
properly read to leave permitting authorities broad discretion to
devise permit revocation procedures, provided that the affected source
is afforded due process, including prior notice and an opportunity to
object.
G. Section 70.8--Permit Review by EPA and Affected States
1. Notification of 45-Day Review
The public has 60 days after the end of EPA's 45-day period for
review of a proposed permit to petition EPA to object to the permit if
EPA did not object. There is no provision in part 70, however, to let
the public know when EPA's 45-day period begins or ends, making it
particularly difficult for the public to exercise this option. The
proposed revision to section 70.8(d) would require that the permitting
authority provide public access to information concerning the
beginning and end of EPA's 45-day review period for permit actions.
No specific means for providing public access are proposed. The
permitting authority would not have to give the public notice, but
could provide public access through a telephone hot line, a computer
terminal at the permitting agency office, a bulletin board, or any
other reasonable means that the public could use to get the
information on a timely basis.
H. Section 70.9--Fee Determination and Certification
1. Periodic Updates to Demonstration
The obligation of the Administrator under section 502(i) of the
Act to assure adequate administration and enforcement of permitting
programs includes assurance that programs are adequately funded on a
continuing basis. The Administrator may, therefore, periodically need
information from the permitting authority that verifies funding is
adequate. Section 70.9(c) requires that the permitting authority
demonstrate fee adequacy; however, the language does not make clear
that periodic information may be required if fee adequacy comes into
question. The proposed revision adds to paragraph (c) language that
is found in paragraph (d), which pertains to demonstrating that
required fees are used solely for purposes of the operating permits
program. The proposal is to add "(and periodic updates as required by
the Administrator)" after the requirement for a demonstration.
I. Section 70.10--Federal Oversight and Sanctions
1. Citation Correction
A correction to a paragraph citation is proposed for three places
under paragraph (b). All three citations are for the Administrator's
finding of inadequate program administration and enforcement. The
citations are to paragraph (c)(1) and should be corrected to read
"(b)(1)."
2. Sanctions Provisions
a. Proposed Change.--The Agency proposes to revise section 70.10
to clarify the conditions under which sanctions would be applied where
a State or local program is disapproved or granted interim approval.
Section 70.10(a)(1) would be revised to be consistent with
section 502(d)(2) of the Act to provide expressly that no sanctions
would be applied if a State or local agency submits a timely and
complete program (including one requesting interim approval), to
provide that "failure to submit" would apply to the corrective
submittal for interim approval, and to make other clarifications. A
new paragraph (a)(2) is proposed to clarify that, for purposes of
title V, the sanctions under section 179(b)(2) for offsets applies
only in nonattainment areas. A clarifying addition to existing
paragraph (a)(2), to be renumbered as paragraph (a)(3), would indicate
that a Federal program would be required by the later of November 15,
1995, if full approval had not been granted by then, or the expiration
of an interim approval period if EPA had not granted full approval by
then.
b. Rationale for Change.--Sections 502(d)(2), (g), and
(i)(1)-(3) of the Act address when and how EPA may and shall apply
sanctions against a permitting authority that does not fulfill part 70
program requirements. Part 70 as currently promulgated implements
these provisions at section 70.10. The EPA believes that revisions to
section 70.10 are needed to clarify EPA's policy for applying
sanctions when permitting authorities fail to submit part 70 permit
programs and when EPA disapproves submitted programs. The EPA also
believes that revisions are needed to clarify how EPA's part 70
sanctions policy relates to interim program approvals. Revisions are
also needed to conform the regulations to the provisions of the Act.
Section 502(d)(2)(B) of the Act provides that if a permitting
authority does not submit a permit program meeting the requirements of
title V, or if EPA disapproves a submitted program, 18 months after
the date for such submittal or the date of such disapproval, whichever
is the case, EPA shall apply sanctions under section 179(b) of the Act
against the permitting authority 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
(42 U.S.C. 7661a(d)(2)(B)). The available sanctions under
section 179(b) are an EPA-imposed prohibition against the Department
of Transportation approving certain highway projects or awarding
grants for certain projects in States under sanctions, and a
requirement that new or modified sources and emissions units permitted
under part D of title I achieve a ratio of emissions reductions to
increased emissions of at least 2 to 1 when complying with the
emissions offset requirements of section 173 of the Act (42 U.S.C.
7509(b)). In addition, section 502(d)(2)(A) provides that in such
cases of failure to submit and disapproval, EPA may, prior to the
expiration of the 18-month period, apply any of the sanctions under
section 179(b) (42 U.S.C. 7661a(d)(2)(A)). However, section 502(g) of
the Act provides that for the period of an interim approval of a State
or local program, the provisions of section 502(d)(2) are suspended,
but will again apply after the expiration of interim approval (42
U.S.C. 7661a(g)).
In implementing section 502(d)(2), part 70 currently provides
that EPA's discretionary sanctions authority and mandatory sanctions
obligations arise [i]f a State fails to submit a fully-approvable
whole part 70 program, or a required revision thereto, in conformance
with the provisions of section 70.4, or if an interim approval expires
and the Administrator has not approved a whole part 70 program.
(40 CFR 70.10(a)(1)). The EPA is concerned that this language
needs additional clarification to explain which situations trigger
EPA's sanctions authority and obligations under sections 502(d)(2) and
(g) of the Act.
For example, the language does not explicitly provide that a
failure to submit a complete permit program would be treated as an
absolute failure to submit, for sanctions purposes. Nor does the
language explicitly state that no sanctions authority arises and no
sanctions clock starts if a permitting authority submits a timely and
complete program for interim approval. Moreover, the language does
not explicitly indicate that if a permitting authority granted interim
approval fails to submit a corrective program as required by
section 70.4, the EPA's sanctions authority would arise and the 18-
month mandatory sanctions clock would start for that permitting
authority. Finally, the language does not clearly state that separate
sanctions authority arises and a separate sanctions clock starts when
EPA disapproves a submitted program that had been initially found
complete.
The proposed revisions to section 70.10(a)(1) are intended to
remedy the existing rule's lack of clarity on these and other points.
First, in part 70, EPA indicated that before proceeding to evaluate
submitted operating permits programs, EPA would within 60 days of
receipt of a submittal determine whether it is complete enough to
warrant review by EPA for approval (40 CFR 70.4(e)(1)). To ensure
that permitting authorities could not avoid the risk of sanctions
merely by submitting permit programs that are so incomplete that EPA
would not be able to go forward to evaluate the program, EPA believes
it is reasonable to treat a failure to submit a complete program as an
absolute failure to submit, such that the 18-month sanctions clock
would run from the date the complete submittal was due. The EPA
believes that the statutory language of title V is amenable to this
approach, as section 502(d)(1) requires permitting authorities to
submit permit programs "meeting the requirements of this title" (42
U.S.C. 7661a(d)(1)), and section 502(d)(2) bases EPA's sanctions
authority on a permitting authority's failure to "* * * submit a
program as required by paragraph (1)" (42 U.S.C. 7661a(d)(2) (A) and
(B)). This language does not speak directly to whether a permitting
authority's failure to submit a complete program necessarily
constitutes an absolute failure to submit. Consequently, it is within
EPA's discretion to interpret the general language of section 502(d)
in fashioning the most reasonable sanctions policy (see Chevron U.S.A.
Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984)). To
give full effect to the deterrent functions of the sanctions
provisions of title V, and to achieve consistency with EPA's sanctions
policy under title I of the Act, EPA believes that it is necessary to
treat failures to submit complete programs as absolute failures to
submit, so that permitting authorities cannot avoid the risk of
sanctions by submitting programs that are so incomplete that EPA could
not evaluate whether they are approvable.
The EPA believes that the phrase "in conformance with the
provisions of section 70.4" in section 70.10(a)(1) already provides
that, to avoid sanctions, a permitting authority must submit a program
that EPA finds complete, since the criteria for determining whether a
permit program is complete can be found in section 70.4(b). If a
State or local program submittal fails to address any of the elements
listed in section 70.4(b), such as evidence that regulations
comprising the program were lawfully adopted through proper State or
local procedures, it would be incomplete. However, as long as the
submittal addresses all of the section 70.4(b) elements, even if it
does so inadequately such that the program was not approvable, it
would be found complete. To better link the submittal of an
incomplete program with section 502(d)(2) sanctions authority, the
proposed revisions to section 70.10(a)(1) would explicitly state that
a failure to submit a complete program triggers a permitting
authority's risk of falling subject to sanctions. This will make
EPA's sanctions policy under title V more consistent with the Agency's
title I sanctions policy under which failure to submit a complete SIP
is treated as a failure starting the sanctions clock (see
section 179(a)(1) of the Act, 42 U.S.C. 7509(a)(1)).
Second, as discussed above, section 502(g) of the Act requires
that during the period of interim approval of an operating permits
program, EPA's authority to apply sanctions in that State or local
area of jurisdiction shall be suspended (42 U.S.C. 7661a(g)). The EPA
believes that section 502(g)'s suspension of sanctions authority
during interim approval periods requires that section 502(d)(2) be
interpreted to not provide EPA with authority to apply discretionary
sanctions and to not start an 18-month mandatory sanctions clock when
a permitting authority makes a timely and complete submittal of an
interim permit program. Otherwise, a permitting authority would be
faced with uncertainty as to whether it was at risk of being subject
to sanctions unless and until EPA takes final action to grant the
program interim approval. The EPA does not believe that Congress
intended for a permitting authority's potential sanctions liability to
depend on the expeditiousness with which EPA grants interim approval
of a complete and timely submittal for interim approval.
Consequently, to give full effect to the suspension required by
section 502(g), EPA would not apply discretionary sanctions or start
the 18-month mandatory sanctions clock in such situations.
The EPA believes that section 70.10(a)(1) is unclear in
addressing this issue, in providing that EPA's sanctions authority
arises whenever a permitting authority "* * * fails to submit a fully
approvable whole part 70 program * * * or if an interim approval
expires and the Administrator has not approved a whole part 70
program" (40 CFR 70.10(a)(1) (emphasis added)). Read literally, the
provision might be interpreted to mean that if either condition is
present, a permitting authority would be subject to risk of sanctions.
This result would clearly conflict with the provisions of
section 502(g) of the Act, since a failure to submit a fully
approvable whole program would result in sanctions notwithstanding the
permitting authority having received interim approval. Moreover,
section 70.10(a)(1) does not explicitly state when a permitting
authority whose program was granted interim approval would have become
free from the risk of sanctions. To remedy this unclarity, the
proposed revisions to section 70.10(a)(1) would explicitly provide
that EPA's sanctions authority would not arise where a permitting
authority submits a timely and complete interim part 70 program.
Third, section 502(g) of the Act provides that no interim
approval may last longer than 2 years, may not be renewed, and that a
permitting authority whose program is granted interim approval must
make changes specified by EPA before the program may receive full
approval (42 U.S.C. 7661a(g)). In part 70, EPA provided that a
permitting authority whose program is granted interim approval must
submit such 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 (40 CFR 70.4(f)(2)). The EPA also
provided that if a permitting authority fails to submit a required
revision to a part 70 program, EPA's sanctions authority would arise
(40 CFR 70.10(a)(1)). However, the phrase "or a required revision
thereto" in section 70.10(a)(1) follows the phrase "fully-approvable
whole part 70 program," and thus does not clearly state that if a
permitting authority fails to submit a required revision to a program
granted interim approval the permitting authority would be at risk of
sanctions (Id). Consequently, section 70.10(a)(1) might be read to
effectively render the program correction submittal requirement under
section 502(g) of the Act and section 70.4(f)(2) nugatory. This
result is not what EPA intended in promulgating part 70. To remedy
this problem, the proposed revisions to section 70.10(a)(1) would,
consistent with section 502(g) of the Act and section 70.4(f)(2),
explicitly provide that if a permitting authority whose program was
granted interim approval failed to submit a timely revision to correct
the deficiencies identified in the interim approval, EPA's sanctions
authority would arise. The EPA believes that section 502(g) provides
the authority to treat the submittal of such a corrective program as a
required submittal under section 502(d)(1) of the Act that could start
an 18-month sanctions clock upon failure to submit by the permitting
authority. Otherwise, permitting authorities whose programs are
granted interim approval and who never submit corrective programs
would not be at risk of sanctions, unless and until they subsequently
abdicated their responsibilities to administer and enforce permit
programs. This result would be unfair to permitting authorities that
had, for example, initially been granted interim approval, then
submitted corrective programs that EPA disapproved, and became subject
to sanctions as a result of the disapproval.
Fourth, section 502(d)(2) of the Act clearly indicates that even
if a permitting authority submits a part 70 program, if EPA
disapproves the submittal, the permitting authority may become subject
to sanctions (42 U.S.C. 7661a(d)(2) (A) and (B)). In such situations,
EPA would be authorized to impose discretionary sanctions at any time,
and would be required to impose mandatory sanctions after 18 months.
Part 70 does explicitly indicate that 18 months after the date of
disapproval of a State or local operating permits program EPA will
apply sanctions (40 CFR 70.10(a)(1)(ii)), but is unclear whether EPA
could impose discretionary sanctions following disapproval but before
expiration of the 18-month clock. In order to remedy this unclarity
and more clearly implement section 502(d)(2)(A) of the Act, the
proposed revisions to part 70 would explicitly provide that separate
discretionary and mandatory sanctions authority would arise in all
cases where EPA disapproves a submitted operating permits program.
Fifth, section 502(d)(2)(C) of the Act provides that the 2-to-1
NSR offset sanction under section 179(b)(2) of the Act shall not apply
in any area unless the failure to submit or the disapproval referred
to in section 502(d)(2) (A) or (B) relates to an air pollutant for
which the area has been designated a nonattainment area as defined in
part D of title I of the Act (42 U.S.C. 7661a(d)(2)(C)). Part 70 does
not currently implement this section of the Act. The proposed
revisions to section 70.10(a)(2) would explicitly provide for this
limitation on EPA's sanctions authority. As a result, consistent with
Congress' intent, for a State or local agency without areas designated
as nonattainment that became subject to sanctions under title V, the
2-to-1 offset sanction would not be applied.
Finally, section 502(d)(3) of the Act provides that if a program
meeting the requirements of title V has not been approved in whole for
any State, the Administrator shall, by November 15, 1995, promulgate,
administer, and enforce a program under title V for that State (42
U.S.C. 7661a(d)(3)). However, section 502(g) provides that during an
interim approval period, the obligation of the Administrator to
promulgate a Federal program for a State is suspended, and does not
arise until after the expiration of such interim approval (42 U.S.C.
7661a(g)). In implementing title V, part 70 provided that "[i]f full
approval of a whole part 70 program has not taken place * * *" by
November 15, 1995, "* * * the Administrator will promulgate,
administer, and enforce a whole or a partial program as appropriate
for such State * * *" (40 CFR 70.10(a)(2)). The EPA believes that
this regulatory language does not give full effect to the Act,
particularly to section 502(g). To be more consistent with the Act,
the proposed revisions to section 70.10(a)(3) would clarify that EPA's
duty to implement a Federal permit program would be suspended during
periods of interim approval and not arise until the end of the interim
approval period if EPA had not granted the program full approval by
then.
J. Section 70.11--Requirements for Enforcement Authority
Section 70.11 requires that State and local operating permits
programs provide for civil penalties to be recoverable in a maximum
amount of not less than $10,000 per day per violation and does not
allow mental state as an element of proof. The revision proposed to
section 70.11(a)(3)(i) clarifies that, provided the permitting
authority demonstrates that it has the civil penalty authority to
recover up to $10,000 per day for each violation on a strict liability
basis, the permitting authority is not precluded from having
additional civil penalty authority that imposes mental state as an
element of proof. However, to be approvable by EPA, it must be
demonstrated that as a matter of State or local law any element of
mental state required for proof of a violation would not apply to the
authority to impose civil penalties up to a maximum of $10,000 per day
for each violation.
V. Decision-Making Flow Charts
A. Flow Chart for Changes Subject to Major NSR
1. Explanation
The questions in this flow chart are ordered to determine (1) if
the change qualifies as a merged program change eligible for
administrative amendment procedures, and (2) if the change does not
qualify as a merged program change, whether it qualifies for minor
permit revision procedures. Note that this flow chart does not
include questions to determine whether the change requires any permit
revision at all, because major new source review virtually always
yields additional applicable requirements. It is consequently a
foregone conclusion that a change subject to major new source review
will require a permit revision to update the permit.
The flow chart also does not include questions to determine
whether the change may be operated immediately, because changes
subject to major NSR by definition involve an emissions increase. In
today's notice, EPA is proposing off-permit treatment for only changes
that do not increase emissions.
Finally, it is unnecessary for this flow chart to include
questions regarding whether the change involves netting, since the
change will necessarily undergo a 30-day comment period as a result of
being subject to major NSR. The netting-related gatekeepers for the
more streamlined permit revision procedures allow any netting
transaction to be processed using streamlined procedures so long as a
30-day comment period was provided for the netting transaction.
2. Flow Chart
a. Did the change undergo a merged major NSR/part 70 process
(i.e., one that (1) addressed both major NSR and part 70 permit
application and content requirements, (2) provided prior notice to EPA
and affected States, and (3) provided a 30-day comment period and, in
the case of PSD NSR, an opportunity for a public hearing)?
--If yes, process as an administrative amendment that is subject to
the
procedures for "merged program" changes.
--If no, go to b.
b. Does the change require a revision of a part 70 permit limit
established solely through part 70 procedures?
--If yes, process as a significant permit revision.
--If no, go to c.
c. Is the source in compliance with the permit terms it seeks to
change?
--If yes, process as a minor permit revision;
--If no, process as a significant permit revision.
B. Flow Chart for Changes Subject to Minor NSR
1. Explanation
The questions in this flow chart are ordered to determine (1) if
the change may be operated immediately, (2) if the change requires any
permit revision at all, (3) for a change that requires a permit
revision, whether it qualifies for administrative amendment procedures
as a merged program change, (4) for a change that does not qualify for
administrative amendment procedures, whether it qualifies for de
minimis revision procedures, and (5) for a change that does not
qualify for de minimis revision procedures, whether it qualifies for
minor permit revision procedures.
2. Flow Chart
a. Can the source operate the change and still comply with all
of its existing permit terms?
--If yes, go to b.
--If no, go to c.
b. Does the change render the source subject to an applicable
requirement to which it was not previously subject (i.e., a new minor
NSR permit term)?
--If yes, go to c.
--If no, the change can be operated immediately and does not require a
permit revision, unless the change decreases allowable emissions and
the source wants to earn emission reduction credits, in which case go
to question 3 of the flow chart for changes that decrease emissions.
c. Does the change increase emissions of regulated pollutants?
--If yes, go to d.
--If no, the source can operate the change immediately, but it must
apply for
a permit revision within six months of commencing operation of
the change; to determine what permit revision procedures to use,
follow the rest of this flow chart.
d. Did the change undergo a merged minor NSR
preconstruction/part 70 process (i.e., one that (1) addressed both
minor NSR and part 70 permit application and content requirements, (2)
provided prior notice to the public, EPA and affected States, and (3)
provided a public comment period of 30 days (or no less than 15 days
in the case of minor NSR programs that provided no less than 15 days
as of 11/15/93))?
--If yes, process as an administrative amendment that is subject to
the procedures for "merged program" changes.
--If no, go to e.
e. Does the change require a revision of a part 70 permit limit
established solely through part 70 procedures?
--If yes, process as a significant permit revision.
--If no, go to f.
f. Is the source in compliance with the permit terms it seeks to
change?
--If yes, go to g.
--If no, process as a significant permit revision.
g. Is the change to a new or existing unit that both before and
after the change emits at no more than the applicable unit-based de
minimis level?
--If yes, go to k.
--If no, go to h.
h. Does the change increase a unit's emissions by no more than
increment-based de minimis amounts?
--If yes, go to i.
--If no, go to l.
i. Is the resulting emission limit expressed in the same form
and unit of measure as the previous limit?
--If yes, go to j.
--If no, go to l.
j. Does the change require a change in the operating parameters
or other monitoring, recordkeeping or reporting requirements
prescribed by the permit that has not been pre-authorized?
--If yes, go to l.
--If no, go to k.
k. Does the existing permit allow for the type of change to be
made through de minimis procedures?
--If yes, process as a de minimis permit revision;
--In no, go to l.
l. Does the change involve a netting transaction for which a
30-day public comment period was not provided?
--If yes, go to m;
--If no, process as a minor permit revision.
m. Did the netting transaction include any single increase that
is greater than the applicable major modification significance level
or a sum of increases that is greater than the applicable major source
thresholds?
--If yes, process as a significant permit revision;
--If no, process as a minor permit revision.
C. Flow Chart for Section 112(g) Modifications
1. Explanation
The questions in this flow chart are ordered to determine (1) if
the change qualifies as a merged program change eligible for
administrative amendment procedures, and (2) if the change does not
qualify as a merged program change, whether it qualifies for minor
permit revisions procedures. Note that this flow chart does not
include questions to determine whether the change requires any permit
revision at all, because a modification as defined by section 112(g)
will always render the source subject to a new applicable requirement
under that subsection. It is consequently a foregone conclusion that
a section 112(g) modification will require a permit revision to update
the permit.
The flow chart also does not include questions to determine
whether the change may be operated immediately, because section 112(g)
modifications by definition involve an emissions increase that is not
offset by an emissions decrease. In today's notice, EPA is proposing
off-permit treatment for only changes that do not increase emissions.
Finally, the flow chart does not include questions regarding
whether the change involves netting, since section 112(g) defines
modifications subject to that subsection in terms of whether the
changes increases emissions on net, and the proposed section 112(g)
preconstruction review procedures take into account the fact that
netting calculations may be involved.
2. Flow Chart
a. Did the modification undergo a merged 112(g) preconstruction
review/part 70 process (i.e., one that (1) addressed both
section 112(g) modification and part 70 permit application and content
requirements, (2) provided prior notice to EPA and affected States and
(3) provided a 45-day public comment period)?
--If yes, process as an administrative amendment that is subject to
the procedures for "merged program" changes.
--If no, go to b.
b. Does the change require a revision of a part 70 permit limit
established solely through part 70 procedures?
--If yes, process as a significant permit revisions.
--If no, go to c.
c. Is the source in compliance with the permit terms it seeks to
change?
--If yes, process as a minor permit revision.
--If no, process as a significant permit revision.
VI. Administrative Requirements
A. Public Hearing
One public hearing will be held to discuss the proposed
regulatory revisions as indicated in the DATES section of this
preamble. Persons wishing to make oral presentations at the public
hearing should contact EPA at the address given in the ADDRESSES
section of this preamble. If necessary, oral presentations will be
limited to 15 minutes each. Any member of the public may file a
written statement with EPA before, during, or within 30 days after the
hearing. Written statements should be addressed to the Air Docket
address given in the ADDRESSES section of this preamble.
A verbatim transcript of the public hearing and written
statements will be available for public inspection and copying during
normal working hours at EPA's Air Docket in Washington, DC (see
ADDRESSES section of this preamble).
B. Docket
The docket for this regulatory action is A-93-50. The docket is
an organized and complete file of all the information submitted to, or
otherwise considered by, EPA in the development of this proposed
rulemaking. The principal purposes of the docket are: (1) To allow
interested parties a means to identify and locate documents so that
they can effectively participate in the rulemaking process, and (2) to
serve as the record in case of judicial review (except for interagency
review materials) (307(d)(7)(A)). The docket is available for public
inspection at EPA's Air Docket, which is listed under the ADDRESSES
section of this notice.
C. Office of Management and Budget (OMB) Review
Under Executive Order 12866 (E.O. 12866) (58 FR 51735 (October
4, 1993)), section 4(c), EPA is required for significant regulatory
actions to prepare an assessment of the potential costs and benefits
(referred to as a Regulatory Impact Analysis (RIA)) of the regulatory
action. Sections 3(f) (1- 4) of E.O. 12866 define "significant"
regulatory actions as those that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866.
Pursuant to the terms of Executive Order 12866, OMB and EPA
consider this a "significant regulatory action" within the meaning of
the Executive Order. The EPA has submitted this action to OMB for
review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record. Any written
comments from OMB to EPA, and any EPA responses to those comments,
will be included in Docket A-93-50.
To facilitate OMB review of this proposed rulemaking, EPA has
prepared an analysis showing the marginal impacts of the proposed
revisions to part 70. The Agency is also in the process of updating
the current Information Collection request for part 70 and will, at
that time, conduct a comprehensive analysis of the regulatory
revisions proposed herein.
After review of the current RIA for part 70, (EPA-450/2-91-011),
the Agency has determined that the effect of the changes to part 70
resulting from today's action will be more than $70 million per year
when compared to the current ICR approved by OMB. However, the
revisions that are included in this action would, primarily through
the revised permit revision process, result in a net decreased impact
of $268 million per year when compared to a baseline of original rule
costs which is adjusted to account for the Agency's revised definition
of title I modification.
D. Regulatory Flexibility Act Compliance
Under the Regulatory Flexibility Act, whenever an Agency
publishes any proposed or final rule in the Federal Register, it must
prepare a Regulatory Flexibility Analysis (RFA) that describes the
impact of the rule on small entities (i.e., small businesses,
organizations, and governmental jurisdictions).
The EPA has established guidelines which require an RFA to
accompany a rulemaking package. For any rule subject to the
Regulatory Flexibility Act, the Agency's new policy requires a
regulatory flexibility analysis if the rule will have any economic
impact, however small, on any small entities that are subject to the
rule, even though the Agency may not be legally required to do so.
A regulatory flexibility screening analysis of the impacts of the
original part 70 rules revealed that the original rule did not have a
significant and disproportionate adverse impact on small entities.
The resulting administrative costs of today's proposal affect larger
part 70 sources which are not typically believed to be small business
entities. Consequently, the Administrator certifies that the proposed
revisions to part 70 will not have a significant and disproportionate
impact on small entities. The EPA, however, solicits any information
or data which might affect this proposed certification. The EPA will
reexamine this issue and perform any subsequent analysis deemed
necessary. Any subsequent analysis will be available in the docket
and taken into account before promulgation.
E. Paperwork Reduction Act
The Information Collection Request (ICR) requirements for the
part 70 regulations were submitted for approval to OMB under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The ICR was prepared
by EPA in association with the promulgation of part 70 and a copy may
be obtained from Sandy Farmer, Information Policy Branch (mail code
2136), U.S. Environmental Protection Agency, 401 M St. SW.,
Washington, DC 20460, (202) 260-2740.
The screening analysis done for the original ICR for part 70
indicated the paperwork burden imposed by the rulemaking was not
substantial. The screening analysis for the revisions to part 70
indicates a need to revise that estimate. However, since the original
ICR for part 70 must be revised anyway before it expires in June 1995,
the ICR analysis of today's proposed revisions to part 70 does not
supersede or replace the up-date of the original part 70 ICR.
Instead, the Administrator proposes to revise formally the ICR for the
entire part 70 rule in the June 1995 up-date.
Send comments regarding the burden estimate or any other aspect
of this collection of information, including suggestions for reducing
this burden by October 28, 1994 to: Chief, Information Policy Branch
(2136), U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460; and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA." The final rule revisions will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
List of Subjects in 40 CFR Part 70
Environmental protection, Air pollution control, Prevention of
significant deterioration, New source review, Fugitive emissions,
Particulate matter, Volatile organic compounds, Nitrogen dioxide,
Carbon monoxide, Hydrocarbons, Lead, Operating permits.
Dated: July 8, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 70 of title 40,
chapter I of the Code of Federal Regulations is proposed to be amended
as set forth below.
(Note: Material enclosed by double 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
1. The authority cite for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Section 70.2 is amended as follows:
a. The definition of Affected States is amended by replacing the
word "modification" with "revision";
b. The definition of Applicable requirement is amended by
redesignating paragraphs (2) through (12) as (3) through (13), adding
a new paragraph (2), and revising the newly redesignated paragraph
(12);
c. The definition of Draft permit is amended by revising the
cite "70.7(h)" to read "70.7";
d. The definition of The EPA or the Administrator is revised;
e. The definition of Major new source review is added after the
definition of "General permit";
f. The definition of Major source is amended by revising the
first paragraph; by revising the first sentence in paragraph (1)(i)
and revising paragraph (2) introductory text and (2)(xxvii);
g. The definition of Minor new source review is added after the
definition of Major source;
h. The definitions of Permit modification and Section 502(b)(10)
changes are removed;
i. The definition of Permit revision is revised;
j. The definition of Potential to emit is amended by adding the
phrase "and citizens under the Act" to the end of the second sentence;
k. The definition of Responsible official is amended by revising
paragraphs (4) (i) and (ii);
l. The definition of Title I modification is added after the
definition of Stationery source.
Additions and revisions to the section are set out to read as
follows:
70.2 Definitions.
* * * * *
Applicable requirement * * *
(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;
* * * * *
(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 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
title V permit;
* * * * *
The EPA or the Administrator means the Administrator of the EPA
or his or her designee.
* * * * *
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), and (3) of this
definition. 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. 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) * * *
(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. * * *
* * * * *
(2) A major stationary source of air pollutants or any group of
stationary sources, as defined in section 302 of the Act, that
directly emits, or has the potential to emit, 100 tpy or more of any
air pollutant (including any fugitive emissions of any such pollutant,
as determined by rule by the Administrator). The fugitive emissions
of a stationary source shall not be considered in determining whether
it is a major stationary source for the purposes of section 302(j) of
the Act or for the purposes of paragraph (3) of this definition,
unless the source belongs to one of the following categories of
stationary source:
* * * * *
(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.
* * * * *
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.
* * * * *
Permit revision means any de minimis permit revision, minor
permit revision, significant permit revision, or administrative permit
amendment.
* * * * *
Responsible official * * *
* * * * *
(4) * * *
(i) The designated representative for all actions, standards,
requirements, or prohibitions under title IV of the Act or the
regulations promulgated thereunder; or
(ii) The designated representative or a person meeting provisions
of paragraphs (1), (2), or (3) of this definition for any other
purposes under part 70.
* * * * *
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.
* * * * *
3. Section 70.3 is amended by revising paragraphs (a)(1) through
(a)(3); by redesignating paragraphs (a)(4) and (a)(5) as (a)(5) and
(a)(6) respectively; by adding a new paragraph (a)(4); and by revising
paragraph (b)(2) to read as follows:
70.3 Applicability.
(a) * * *
(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;
* * * * *
(b) * * *
(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, the Administrator will determine
whether to exempt any or all such sources from the requirement to
obtain a part 70 permit at the time that the new standard is
promulgated.
* * * * *
4. Section 70.4 is amended by:
a. Revising paragraphs (a) and (b)(3)(x);
b. Removing the last sentence from paragraph (b)(3)(xi);
c. Amending paragraph (b)(3)(xii) by replacing "90" in the first
and third sentences with "125";
d. Amending paragraph (b)(11)(iii) by replacing "9" with "12";
e. Revising paragraphs (b)(12) through (14), (h), (i)
introductory text and (i)(1);
f. Removing paragraph (b)(15) and redesignating paragraph
(b)(16) as (b)(15);
g. Redesignating paragraphs (j) and (k) as (k) and (l),
respectively; and by adding a new paragraph (j).
Additions and revisions are set out to read as follows:
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.
(b) * * *
(3) * * *
(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.
* * * * *
(12) Provisions consistent with paragraphs (b)(12) (i) and (ii)
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) Trading under permitted emissions caps. The program shall
require the permitting authority 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), 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
where the permitting authority determines that the emissions are not
quantifiable or where it determines that there are no replicable
procedures or practical means to enforce the emissions trades.
(A) The written notification required under this paragraph
(b)(12)(i) 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) 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) The written notification required under this paragraph
(b)(12)(ii) 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) shall not extend to
any change made under this paragraph (b)(12)(ii). Compliance with the
permit terms that the source will meet using the emissions trade shall
be determined according to requirements of the applicable
implementation plan authorizing the emissions trade.
(13) Provisions for adequate, streamlined, and reasonable
procedures for expeditious review of permit revisions. The program
may meet this requirement by using procedures that meet the
requirements of 70.7 (d), (e), (f), (g), and (h) or that are
substantially equivalent to those provided therein.
(14) If a State allows permittees, without first applying for a
permit revision, to make changes that do not result in the source
being in violation of any permit term or condition but render the
source subject to an applicable requirement to which the source was
not previously subject, provisions meeting the requirements of
paragraphs (b)(14) (i) through (vii).
(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 of each such change. Such written notice shall
describe each such change, the date of the change, any change in
emissions, pollutants emitted, and the applicable requirement to which
the source becomes subject as a result of the change.
(iii) The change shall not be eligible for the permit shield
under 70.6(f) 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.
(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 include the permit application with
the 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 have applied
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.
* * * * *
(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 revision requests, to conduct
inspections, and to receive and review monitoring reports. If any
permit appeal or 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. 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.
(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) through (iii) of this
section, any other time period that the Administrator determines is
appropriate to allow for program revision.
* * * * *
(j) Savings provision. Any operating permits program developed
and submitted to the Administrator for approval prior to [DATE 6
MONTHS AFTER PUBLICATION OF FINAL RULE] 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.
* * * * *
5. Section 70.5 is amended by:
a. Revising paragraph (a)(1)(ii);
b. Redesignating paragraphs (a)(1)(iii) and (a)(1)(iv) as
(a)(1)(iv) and (a)(1)(v) respectively, adding a new paragraph
(a)(1)(iii), and revising the newly redesignated paragraph (a)(1)(v);
c. Revising the second sentence in paragraph (a)(2);
d. Adding a new sentence to paragraph (c) introductory text
after the fifth sentence in that paragraph;
e. Redesignating paragraphs (c)(8), (c)(9), and (c)(10) as
paragraphs (c)(9), (c)(10), and (c)(11) respectively and adding a new
paragraph (c)(8).
Additions and revisions are set out to read as follows:
70.5 Permit applications.
(a) * * *
(1) * * *
(ii) 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 Secs. 70.7(e), (f),
(g), or (h).
* * * * *
(v) 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) * * * To be found 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. * * *
* * * * *
(c) * * * No activity or emissions unit of a source may be
exempted when determining whether a source is major. * * *
* * * * *
(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.
6. Section 70.6 is amended by:
a. Revising paragraphs (a)(3)(ii) introductory text,
(a)(3)(iii)(B), (a)(4) introductory text, (a)(8), (a)(9)(i), (a)(10)
introductory text, (c)(1), (d)(2), and (f)(3)(i);
b. Adding a new paragraph (d)(3);
c. Amending paragraphs (a)(1)(iii), (a)(6)(i), and (a)(6)(iii)
by replacing the word "modification" with "revision";
d. Amending paragraph (a)(4)(ii) by replacing the word "source"
with "unit";
e. Amending paragraphs (c)(3) and (c)(4) by revising references
to " 70.5(c)(8)" to read " 70.5(c)(9)";
f. Amending paragraph (d)(1) by revising references to
" 70.7(h)" to read " 70.7(k)."
The additions and revisions read as follows:
70.6 Permit content.
(a) * * *
(3) * * *
(ii) With respect to recordkeeping, the permit shall incorporate
all applicable recordkeeping requirements and require the following:
* * * * *
(iii) * * *
(B) Prompt reporting of deviations from permit requirements,
including those attributable to upset conditions, 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, a permit condition prohibiting any
affected unit from emitting SO2 in excess of any allowances that the
affected unit lawfully holds under title IV of the Act or the
regulations promulgated thereunder.
* * * * *
(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
authorizing such changes to be provided for in the permit and where
the permit provides for such changes.
(9) * * *
(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;
*