8?
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
Operating Permit Program
AGENCY: Environmental Protection Agency (EPA)
ACTION: Proposed rule; notice of opportunity for public
hearing.
SUMMARY: The EPA is proposing a new Part 70 of Chapter I of
Title 40 of the Code of Federal Regulations. This part will
contain regulations requiring States to develop, and submit
to EPA programs for issuing operating permits to major
stationary sources (including major sources of hazardous air
pollutants listed in section 112), sources covered by new
source performance standards (NSPS)/ sources covered by
emissions standards for hazardous air pollutants pursuant to
section 112, and affected sources under the acid rain
program. Today's action would defer for 5 years the
requirement for certain nonmajor sources to obtain a permit,
including those in nonattainment areas if a State makes
HEAHQHrRTFRS LIBRARY
ENVIR'V' •'""''!-• '--..nECTION AGENCY
<\SHiNC='vjK, L'.C. 20460
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certain showings. These sources may still opt to secure a
permit.
Title V of the Clean Air Act (Act) Amendments of 1990,
P.L. 101-549, enacted on November 15, 1990, requires EPA to
promulgate regulations within 12 months of enactment that
require and specify the minimum elements of state operating
permit programs. This new Part 70 will contain these
provisions. Title V establishes timeframes for developing
and implementing the State permit programs. Within 3 years
of enactment, States must submit proposed permit programs to
EPA for approval. In some cases, EPA can approve interim
programs for up to 2 years, but States must submit a full
program to avoid sanctions for failure to subirit a program.
The EPA must act to approve or disapprove a State program
within 1 year of submittal by the State to EPA. If a state
fails to submit a fully approvable program within the 3 year
period, EPA will apply specific sanctions pursuant to the
provisions of Title V and, in any event, must establish a
Federal program within the following 2 years. Any such
Federal program will be promulgated in 40 CFR Part 71 (to be
proposed at a later date). Sources subject to the program
must submit complete permit applications within one year
after a State program is approved by EPA or, where the state
program is not approved, after a program is promulgated by EPA.
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The Part 70 rules proposed today would require States
to include several program elements in their plan submittal
to meet the requirements of Title V. These program elements
include (1) a statement that the permitting authority has
adequate legal authority to implement and enforce the
program fully, (2) a standard permit application form and
criteria for determining the completeness of the
application, (3) a demonstration that the State has adequate
resources and funding (including a permit fee schedule) to
develop and carry out the program, and (4) regulations with
issuance, appeal, and renewal procedures which ensure that
each regulated source can obtain a permit that will assure
compliance with all its applicable requirements under the
Act.
Part 70 sources must obtain an operating permit
addressing all applicable pollution control obligations
under the State implementation plan (SIP), the acid rain
program, the air toxics program, or other applicable
provisions of the Act (e.g., NSPS). Sources must also
submit periodic reports to the State and EPA as appropriate
concerning the extent of their compliance with permit
obligations. The permit and compliance reports will be
available to the public, subject to any applicable
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confidentiality protection procedures similar to those
contained in section li4(c).
Today's notice also introduces a related future
rulemaking action. The EPA intends to propose the terms
under which the Agency will issue its own permits under
Title V, as well as Federal permit requirement for affected
sources under Title IV, the acid rain program. The
framework for this program will be located in a new Part 71
of Chapter I of Title 40 of the Code of Federal Regulations.
The proposal of Part 71 is now scheduled to occur at the
time the Part 70 regulations are promulgated as final rules.
Today's notice discusses anticipated requirements and
solicits comment on these initial ideas.
DATES: Comments on the proposed regulations must be
received by (60 days from the date of proposal). The EPA
will not be able to extend the public comment period due to
the strict 12 month deadline in the Act. The EPA will hold
a public hearing on May 13, and two public meetings on
May 15 and May 17, 1991, at the addresses listed below.
Requests to present oral testimony must be received on or
before (two weeks after the date of proposal). 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
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IBM-compatible, 5 1/4 inch diskette and clearly labeled.
Computer files created with the WordPerfect software package
should be sent as is. Files created on other software
packages should be saved in an "unformatted" mode for easy
retrieval into WordPerfect. Comments should refer to
specific page numbers whenever possible.
DOCKET: Supporting information used in developing the
proposed rules is contained in Docket No. A-90-33. This
docket is available for public inspection and copying
between 8:30 a.m. and 3:30 p.m. Monday through Friday at the
address listed below. A reasonable fee may be charged for
copying.
ADDRESSES: Comments must be mailed (in duplicate if
possible) to: EPA Air Docket (LE-131), Attn: Docket
No. A-90-33, Room M-1500, Waterside Mall, 401 M Street SW,
Washington, DC, 20460. The public hearing will be held in
the Waterside Mall auditorium at the EPA's Headquarters
office in Washington, D.C. on May 13, 1991, and the public
meetings will be held in the Dirksen Federal Building in
Chicago, Illinois on May 15, 1991, and in the EPA Regional
Office in San Francisco, California, on May 17, 1991.
FOR FURTHER INFORMATION CONTACT: Michael Trutna at
(919) 541-5345 or Kirt Cox at (919) 541-5399. Persons
interested in attending the hearing or wishing to present
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oral testimony should contact Ms. Carol Bradsher in writing
at the U.S. Environmental Protection Agency, Office of Air
Quality Planning and Standards, Air Quality Management
Division, Mail Drop 15, Research Triangle Park, North
Carolina, 27711.
SUPPLEMENTARY INFORMATION!
The contents of today's preamble are listed in the
follov'.ng outline:
I. BACKGROUND AND PURPOSE
II. IMPLEMENTATION PRINCIPLES
III. PROPOSAL SUMMARY
A. Applicability
B. State Program Submittals and EPA Approval
C. The EPA Program Oversight
D. Complete Permit Applications
E. Permit Content
F. Permit Issuance and Review
G. Fee Demonstration
H. Permit/SIP Relationship
I. Nev Source Review/Title V Relationship
J. Small Businesses
K. Relationship With Title III (Air Toxics)
L. Relationship with Title IV (Acid Rain)
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IV. DETAILED DISCUSSION OF THE KEY ASPECTS OF THE PROPOSED
REGULATIONS
A. Section 70.1 - Statement of Program Goals
B. Section 70.2 - Definitions
C. Section 70.3 - Applicability
D. Section 70.4 - State Program Submittals and
Transition
E. Section 70.5 - Permit Application
F. Section 70.6 - Permit Content
G. Section 70.7 - Permit Issuance, Renewal, Revisions,
and Reopenings
H. Section 70.8 - Permit Review by EPA and Affected
States
I. Section 70.9 - Fee Determination and Certification
J. Section 70.10 - Federal Oversight and Sanctions
K. Section 70.11 - Requirements for Enforcement
Authority
V. ADDITIONAL TOPICS OF DISCUSSION
A. Implementation Agreements Between State Agencies
and EPA
B. Relationship of Permit Programs to SIP's
C. Implications for Acid Precipitation Program
D. Judicial Review
E. Implications for Title III
F. Information Management Support
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G. Relationship of Permit Fees to Section 105 Grants
H. Integration of NPDES Program Concepts
VI. FEDERAL OPERATING PERMIT PROGRAM
A. Purpose
B. Part . Default Program
C. Acid Rain Program
D. MACT Extensions
VII. ADMINISTRATIVE REQUIREMENTS
A. Public Hearing
B. Docket
C. Reference Documents
D. Office of Management and Budget (OMB) Review
E. Federalism Implications
F. Regulatory Flexibility Act Compliance
G. Paperwork Reduction Act
This preamble is organized to meet the needs of readers
who want just an overview of the operating permit program
and for readers who want a detailed discussion of the
concepts and issues behind today's proposal.
The first section provides background on the effort to
amend the Act to include an operating permits program, the
purposes of that action, and the expected benefits. The
information is useful to anyone seeking any level of
information on the operating permits program.
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The second section explains the principles EPA has
followed while developing the proposed regulations and the
positions on associated issues and expectations of State and
local agencies. The reader should review the preamble and
regulations with these principles in mind.
The program summary .section (section III.) provides
summaries of the major portions of the program. This
section of the preamble is similar to an executive summary
of a report and allows the reader to obtain general
knowledge of the subjects, after which more detailed
discussion can be sought in other parts of the preamble.
The detailed discussion of the regulations is in
section IV. This section notes the provisions of the
regulations, but also provides comprehensive background on
the concepts behind the regulations and any issues or
controversial aspects to be considered with respect to
regulatory requirements. The design of the regulations
generally follows the flow of Title V as does the discussion
in section IV.
Additional topics important to the operating permits
program are presented in section V. of this preamble. These
areas are not related to specific regulatory requirements
proposed here, so a separate section of the preamble is
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devoted to their detailed coverage. The subjects covered
can be found in the preamble outline above.
Another topic warranting separate coverage is the
Federal operating permit program that will be implemented by
EPA in the event a State fails to submit an acceptable
program or fails to adequately enforce an approved program.
Other uses for the program will involve acid rain
requirements and early emission reductions from hazardous
air pollutant sources. This Federal program is discussed in
section VI. of this preamble.
The final section (section VII.) contains the
administrative requirements accompanying Federal regulatory
actions. These include the topics listed in the preamble
outline above.
There is some intended redundancy in this preamble,
first because there is a separate summary, but second
because a number of issues or topics are related to several
regulatory requirements or other topics discussed. In the
event the reader focuses on only certain topics, this
overlap is intended so as not to ignore a specific issue or
subject pertinent to a specific area, just because it is
covered elsewhere.
Many citations (e.g., [70.6]) are made in this preamble
to refer the reader to more detail or to the origin of
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certain requirements. These citation sections will not be
followed by their origin such as "of this preamble" or "of
Title V." Rather, the reader can recognize the origins of
the sections by their nature:
o sections of the preamble begin with a roman
numeral.
o sections of Title V of the Act are in the 500's.
o sections of the proposed regulations range from
70.1 to 70.11.
o sections of the Act are referenced by three-digit
number, such as 112 and 408.
o sections of existing EPA regulations generally are
preceded by 40 CFR.
This preamble makes frequent use of the term "State,"
usually meaning the State air pollution control agency which
would be the permitting authority. The reader should assume
that use of "State" may also include reference to a local
air pollution agency or certain Indian tribes. These
Agencies can either be the permitting authority for the area
of their jurisdiction or assist the State or EPA in
implementing the Title V permitting program. In some cases,
the term "permitting authority" is used and can refer to
both State and local agencies, when the local agency
directly issues permits or assists the State in issuing
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permits. The term may also apply to EPA, where the Agency
is the permitting authority of record.
I. Background and Purpose
The new Title V of the Act introduces an operating
permits program generally.modeled after the National
Pollutant Discharge Elimination System (NPDES) program under
the Clean Water Act (CWA). Some of the regulations proposed
today are also modeled on NPDES regulations in 40 CFR Parts
122, 123, and 124. The EPA, therefore, will generally
resolve issues of construction by construing the Title V
permits program consistent with the NPDES program. Part 70
sources must obtain an operating permit, States must develop
and implement the program, and EPA must issue permit program
regulations, review each state's proposed program, and
oversee the State's efforts to implement any approved
program, including reviewing proposed permits and authority
to veto improper permits. When a State fails to adopt and
implement its own approvable program, EPA must apply
sanctions against the State and ultimately also develop and
implement a Federal permit program.
The addition of such a program updates the Act, making
it consistent with other environmental statutes, including
the CWA and the Resource Conservation and Recovery Act, both
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of which have permit requirements. While to date there has
not been an express Federal requirement that States have an
operating permit program for air, a recent comprehensive
survey of existing State permit programs indicates that
about 40 State programs issue operating permits to at least
construction projects. Over half of the existing State
operating permit programs address both new and existing
sources and require renewal of permits periodically. Many
of these programs appear to match closely the intent of
Title V in that they have the basic components required by
Title V for issuing permits, collecting fees, providing for
public participation, reopening permits, and issuing permits
for a fixed term. The Part 70 regulations have been
designed to minimize the disruption to current State efforts
by offering as much flexibility as is provided by the law,
while ensuring that existing (and new) State programs will
meet the requirements of the Act.
A primary benefit of the Title V permit program is that
it will clarify which requirements apply to a source in a
single document and, thus, should enhance compliance with
the requirements of the Act. Currently, a source's
obligations under the Act, ranging from emissions limits to
monitoring, recordkeeping, and reporting requirements, in
many cases, are identified in numerous provisions of the SIP
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or Federal regulations. In addition, regulations are often
written to cover broad source categories and, therefore, it
may be unclear which, and how, general regulations apply to
a source. Similarly, applicable provisions are sometimes
not explicit as to reporting requirements (e.g., when to
submit periodic compliance reports to EPA or the States).
As a result, EPA often has no easy way to establish whether
a source is in compliance with regulations under the Act.
The Title V permit program will enable the source, the
State, EPA, and the public to better understand the
requirements to which the source is subject, and whether the
source is meeting those requirements. Increased source
accountability and better enforcement should result. The
program will also greatly strengthen EPA's ability to
implement the Act and enhance air quality planning and
control, in part, by providing the basis for better emission
inventories.
Another benefit of the Title V permit program is that
it provides a ready vehicle for the States to administer
significant parts of the substantially revised Federal air
toxics program and the new acid rain program. This enhances
EPA's ability to oversee all programs under the Act.
Specifically, the Act requires that States use the permit
system to administer the air toxics programs. In addition,
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States will be responsible for reviewing and issuing permits
to implement the second phase of the acid rain program (with
permitting activities beginning in 1996), and will play a
significant role in ensuring compliance with the acid rain
requirements in 40 CFR Parts 71, 72, 73, and 74 (to be
promulgated at a later date).
Finally, an important benefit is that the permit
program contained in these regulations will ensure that
States have resources necessary to develop and administer
the program effectively. In particular, the permit fees
provisions of Title V will require sources to pay their fair
share of the costs of developing and implementing the permit
program. To the extent the fees are based on emission
levels, the fees will create an incentive for sources to
reduce emissions.
II. Implementation Principles
The passage of the Act amendments of 1990 was a major
accomplishment in the protection of public health and the
environment in the United States. The new Act sets forth
ambitious goals which can only be achieved through effective
and expeditious implementation by EPA and State and local
governments. Today's proposed rulemaking is the first of
several important actions that EPA will be taking to
accomplish its rule development responsibilities under the
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Act. The EPA believes that the following principles should
guide the way in which. Title V regulations and related
programs are designed and implemented.
Such principles are necessary to preserve the
legislative intent underlying the content of Title V. The
EPA intends that these principles be appropriately
incorporated into all aspects of program development and
implementation by both States and EPA. In particular, EPA
will employ them when it is responsible for developing
rules, overseeing State or local agency programs and
permits, or issuing permits. The public is urged to frame
its comments on today's proposal keeping in mind the extent
to which sections of this proposal are consistent with the
various implementation principles outlined below.
A. Ensure Environmental Protection
Congress's basic goal in adopting the Title V permit
program is to achieve improved air quality by establishing a
broad-based tool to aid effective implementation of the Act
and to enhance the Agency's ability to enforce the Act. The
EPA believes it is important that other implementation
objectives stated below complement this objective, not
undercut the potential of Title V for strengthening air
quality management efforts across the country.
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B. Incorporate Broad-Based Perspective for Rule Development
The EPA continually seeks a better understanding of the
key concerns of those most affected by Title V in order to
have a broad-based perspective during the regulation
development process. With this goal, the Agency hopes to
make implementation efforts more effective and to minimize
the chances for conflict. Today's proposal was developed
with the benefit of insight from important affected parties
(including State and local governments, major industries,
small businesses, and environmental organizations) which
were actively involved in the Title V legislative process.
The EPA is interested in receiving additional input from
these and other interested parties during the public comment
period.
C. Maintain an Effective Partnership With State and Local
Governments
The EPA recognizes that the bulk of the responsibility
for implementing Title V falls upon State and local
governments. Thus, a key principle in developing today's
proposed rules has been to build upon existing operating
permit programs and to provide the States with regulatory
flexibility wherever possible to maintain existing program
elements in implementing Title V.
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D. Minimize Redundancy in SIP's and Permit Programs
The Title V permit program is designed to complement
SIP's in achieving improved air quality management across
the country. Because operating permits will contain more
source-specific details than SIP's, EPA intends that source-
specific permit changes be implemented wherever possible
solely through the procedures in the permit program rather
than through the SIP process. In this way, subject sources
and governments will experience less burden and delay than
would be associated with a multi-step procedure which
include? the more cumber?~me SIP revision prc ass.
E. Encourage Early State Program Development
The EPA supports early adoption of the program by
States in order that the Title V framework enable them to
implement more quickly other new Act programs. During the
transition period, the EPA intends to assist States with
their development of timely Title V programs and their
efforts to obtain interim program approval.
F. Minimize Small Business Concerns
The Act requires certain small businesses to become
regulated for the fir?*: ime via the requirement to obtain a
Title V operating permit. The EPA will be sensitive to the
impact of these regulations on these sources by phasing-in
or streamlining the permitting requirements as appropriate.
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Where possible, EPA intends to promulgate rules which employ
cost-effective permitting techniques, such as general
permits, to simplify the permit application and issuance
process.
G. Promote Pollution Prevention as the Approach of Choice
The EPA encourages permitting authorities to promote
pollution prevention alternatives where possible in their
permitting activities. Permits can, consistent with the
law, be used to define creative activities for shifting to
inherently cleaner processes, both in meeting requirements
for criteria pollutants and the acid rain program, and in
meeting otherwise applicable requirements of Title III of
the Act.
H. Facilitate Use of Market-Based Incentives
The operating permit program is intended to be an
effective administrative tool for achieving cost-effective
improvements in air quality through market-based principles.
Title V operating permits will be used to implement the
requirements of Title IV of the Act. Acid rain permit
requirements must not hinder the effective operation of the
allowance trading market.
I. Allow Flexibility in State Programs and Source Permits
Except as necessary to ensure national consistency to
support the market-based acid rain allowance trading system,
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requirements for Title V programs are intended to be
flexible enough to allow States a reasonable range of
options in designing their State programs for EPA approval.
Unnecessary regulatory detail will unduly jeopardize
approval of different but effective State and local
programs. Sources must also be provided flexibility within
their permits. Specifically, they should be allowed to make
several types of periodic changes without having to undergo
full permit modification procedures. This will be
especially important to some industries so that their market
competitiveness is not jeopardized.
J. Establish Certainty for Permitted Sources
A Title V permit should articulate a clear road map of
source obligations to inspire confidence in the system. The
permit shield provisions should be used by the permitting
authority to provide a stable reference point from which to
govern the operation of the source until the time of permit
renewal, unless there are clear reasons require an interim
reopening of the permit (e.g., to incorporate newly
promulgated standards with near-term compliance dates).
K. Enable E active and Efficient Information Transfer
The EPA intends that information contained in permits,
permit applications, and compliance certification reports
(to the extent not protected under laws of confidentiality)
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be used for several air quality management purposes. The
EPA intends to promote- consistent data submittals to track
progress, consolidate current reporting burdens, and inform
affected parties of a source's compliance status relative to
its enforceable obligations.
L. Prioritize EPA Oversight on Overall Program
Implementation
The EPA takes seriously its new responsibilities for
reviewing permits and overseeing State/local program
implementation. The Agency understands, however, that State
and local governments have administered effective operating
permit programs for many years and can be expected to do so
in the future without "micro-management" from EPA. Concern
has been raised that overuse of EPA's permit veto authority
could lead to serious administrative roadblocks for
permitting agencies. Within the limitations of its permit
review responsibilities as stated in the Act, the Agency
intends to place more priority on the oversight of overall
program implementation than on the review of
noncontroversial individual permits so long as clean air
goals are being achieved.
M. Promote Possibilities for Integrated Permit Programs
The EPA intends that the Title V rulemaking provide the
basis for opportunities to establish a permit program to
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consolidate the review of a source's impact with respect to
the Clean Air Act and to other environmental media. in
particular, the Agency encourages close coordination of the
preconstruction and operating permit review programs for air
to minimize duplication and delay. Comments are
specifically solicited as to how integrated permitting can
be promoted and not inhibited by this rulemaking.
III. Proposal Summary
A. Applicability
The Title V operating permits program requires all
Part 70 sources, with the initial exception of affected
sources under the acid rain program, to submit permit
applications to the appropriate permitting authority within
1 year of the effective date (i.e., date of EPA approval) of
the State program. The proposed operating permit program
applies to the following sources:
o Major sources, defined as follows:
Air toxics sources, as defined in section 112
of the Act, with the potential to emit
10 tons per year (tpy) of any hazardous air
pollutant, 25 tpy of any combination of
hazardous air pollutants, or a lesser
quantity of a given pollutant if the
Administrator so specifies [501(2)(A)];
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Sources of air pollutants, as defined in
section 302, with the potential to emit
100 tpy of any pollutant [501(2) (B)];
Sources subject to the nonattainment area
provisions of Title I, Part D, with the
potential to emit pollutants in the following
amounts [501(2)(B)]:
— Ozone (VOC's and NOX) TPY
Serious 50
Transport regions not
severe or serious 50
Severe 2 5
Extreme 10
Carbon monoxide
Serious (where
stationary sources
contribute
significantly) 50
— Particulate Matter
(PM-10)
Serious 70
o Any other source, including an area source,
subject to an hazardous air pollutant standard
under section 112;
o Any source subject to new source performance
standards (NSPS) under section 111;
o Affected sources under the acid rain provisions of
Title IV [501(1)];
o Any source required to have a preconstruction
review permit pursuant to the requirements of the
prevention of significant deterioration (PSD)
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program under Title I, Part C or the nonattainment
area new source review (NSR) program under
Title I, Part D; and
o Any other stationary source in a category EPA
designates in whole or in part by regulation,
after not.ce and comment.
A m&jor source is defined in terms of all emissions
units under common control at the same plant site (i.e.,
within a contiguous area). Once subject to the Part 70
operating permit program for one pollutant, a source must be
reviewed for emissions of all pollutants regulated under the
Act from all regulated emissions units located at the plant.
All emissions of regulated pollutants are also subject to
fee assessment. The program applies to all geographic areas
within each State, regardless of their attainment status,
although for purposes of the acid rain permit program
requirements, the program applies only within the contiguous
48 States.
The EPA is authorized, consistent with the applicable
provisions of the Act, to exempt one or more source
categories (in whole or in part) from the requirement to
have a permit if the Agency determines rhat permitting the
category would be "impracticable, infeasible, or
unnecessarily burdensome1* [section 502 (a)]. The EPA may
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not, however, exempt any "major" or "affected" (i.e., acid
rain) source from the permitting requirements. States may,
if they wish, permit and/or charge fees for federally-
exempted sources.
To promote an orderly phase-in of the program, EPA is
proposing to defer initially from coverage for 5 years from
the date of program approval all sources which are not
major. Nonmajor sources in nonattainment areas will receive
this deferral only if the permitting authority makes a
showing that the State can effectively enforce its SIP
obligations on such sources without using federally-
enforceable operating permits. The Administrator also
reserves the ability to determine on a case-by-case basis
the future applicability of nonmajor sources which become
subject to new section 112 standards.
Any source with deferred applicability may opt to
obtain a permit prior to the end of the 5-year deferral
period. All deferred sources will be required to submit
permit applications by at the end of the 5-year deferral
period, unless they are sources or source categories that
receive a continued exemption (i.e., EPA determines that
permitting them would be impracticable, infeasible, or
unnecessarily burdensome) in a future rulemaking.
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B. State Permit Program Submittals and EPA Approval
Title V requires EPA to promulgate regulations
establishing the basic elements of a State permit program.
State and local pollution control agencies or interstate
compacts may implement provisions of Title V, as long as all
geographic areas within each State are covered by a permit
program. (As mentioned, reference to the "State" will
include reference to local agencies where appropriate.) EPA
oversees development of State programs and enforces the
obligation to implement a program in each State. Should a
State fail to develop a permit program, the EPA must
implement a prograr for that State [501(4), 502(d)(i), and
302 (b) ] .
(1) Minimum Program Requirements
Within 1 year of enactment of the 1990 Amendments
(November 14, 1991), EPA must promulgate regulations
establishing the minimum elements of a State operating
permit program. These regulations must include the
following elements:
o Requirements for permit applications, including
standard application forms and criteria for
determining the completeness of applications
o Monitoring and reporting requirements [502(b)(2)j;
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o A permit fee system [502(b)(3)];
o Provisions for adequate personnel and funding to
administer the program [502(b)(4)];
o Authority to issue permits and assure that each
permitted source complies with applicable
requirements under the Act [502(b)(5) (A) ];
o Authority to terminate, modify, or revoke and
reissue permits "for cause," which is not further
defined [502(b)(5)(D)], and a requirement to
reopen permits in certain circumstances [IV.B.];
o Authority to enforce permits, permit fee
requirements, and the requirement to obtain a
permit, including civil penalty authority in a
maximum amount of not less than $10,000 per day
for each violation, and "appropriate criminal
penalties" [502 (b)(5)(E)];
o Authority to assure that no permit will be issued
if EPA timely objects to its issuance
[502(b)(5)(F)];
o Procedures for expeditiously determining when
applications are complete and for processing
applications; for public notice, including
offering an opportunity for public comment and a
hearing; for expeditious review of permit actions,
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and State court review of the final permit action
[502(b)(6)];
o Authority and procedures to provide that the
permitting authority's failure to act on a permit
or renewal application within the deadlines
specified in the Act (section 503 and the
deadlines for permitting under acid rain
provisions in Title IV) shall be treated as a
final permit action solely to allow judicial
review by the applicant or anyone else who
participated in the public comment process to
compel action on the application [502(b)(7)];
o Authority and procedures to make available to the
public any permit application, compliance plan,
permit, emissions or monitoring report, and
compliance report or certification, subject to the
confidentiality provisions similar to those of
section 114(c) of the Act [502(b)(8)]; the
contents of the permit itself are not entitled to
confidentiality protection [503(e)]; and
o Provisions to allow operational flexibility at the
permitted facility [502(b)(10)].
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(2) State Program Development
Within 3 years of enactment (2 years after EPA is
obligated to issue its permit program regulations), the
Governor of each State shall submit to EPA a permit program
meeting the requirements of Title V. A State may submit its
current or proposed program to EPA for approval any time
after Part 70 rules become final.
The Governor must also submit a legal opinion from the
attorney general, attorney for those State air pollution
control agencies with independent legal counsel, or the
chief legal officer of an interstate agency stating that the
laws of the State, locality, or interstate compact provide
adequate authority to carry out the program [502(d)(l)].
The EPA encourages early action by each State to evaluate
the potential of its existing enabling legislation to
implement Title V and to take additional actions, as needed,
to ensure a timely and approvable program submittal.
Several States may need new legislative authority in a
number of areas in order to fulfill the requirements of the
Act, including (but not limited to): authority to charge,
collect, retain, and expand adequate permit fees, and to
collect civil penalties of at least $10,000 per day per
violation. The EPA intends to assist States in identifying
and obtaining any required new authorities.
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(3) The EPA Review of Program Submittals
Within 1 year after receiving the State's program, EPA
shall approve or disapprove it, in whole or in part. The
EPA may approve the program to the extent it meets the
requirements of the Act and EPA's permit program
regulations.
If EPA disapproves the program, or any part of it, EPA
must notify the Governor of any revisions necessary for EPA
approval. The State then has 180 days from this notice to
revise and resubmit the program [502(d)(l)]. When EPA
approves a program, EPA must suspend issuance of Federal
permits, but may retain jurisdiction over permits still
under administrative or judicial review [502(e)].
(4) Interim Program Approvals
If a program is not fully approvable, EPA may grant
interim approval to a permit program, so long as the ^rogram
"substantially meets" the requirements of Title V. Criteria
for satisfying the "substantially meets" test are proposed
to include: (1) the commitment and capability to collect
adequate fees to cover the costs of the State permitting
program, (2) the legal authority to assure that sources
comply with all applicable requirements under the Act,
(3) fixed permit terms not to exceed 5 years, (4) the
opportunity for public participation in the permit issuance
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process, and (5) the opportunity for EPA to review and
object to the issuance of any permit.
In the notice of final rulemaking granting interim
approval, EPA must specify the changes the State must make
to receive full approval. The EPA may grant interim
approval for a period of up to 2 years, which may not be
renewed. During the interim approval period, the State is
protected from sanctions for failure to have a program and
EPA is not obligated to promulgate a Federal permit program
in the State [502(g) and (d)(2)-(3)]. Permits issued under
a program with interim approval have full standing with
respect to Title V and the 1-year time period for source
submittal of permit applications begins upon interim
approval as does the 3-year time period for processing the
initial permit applications discussed in the following
section.
(5) State Permit Review
As noted above [III.A.], sources are required to submit
permit applications to the permitting authority within l
year of program approval, whether full or interim. For
Title IV (acid rain) sources, however, specific superseding
deadlines are provided for the submission of applications
for Phase II permit applications which will not be due to
States until January 1, 1996 [408(D)(2)]. For the initial
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round of permit applications, the permitting authorit-v must
establish a phased schedule for processing permit
applications submitted within the first full year after
program approval. This schedule must assure that the
permitting authority will act on at least one-third of the
permits each year over a period not to exceed 3 years after
approval (interim or full) of the program [503(c)]. EPA
urges States ta.o encourage early submittals of complete
applications.
States are required to issue permits under the acid
rain program by December 31, 1997 [408(0)(3)]. For most
States, this deadline will coincide roughly with the second
year of initial permit action.
After acting on the initial round of applications, the
permitting authority must act on a completed application and
issue or deny a permit within 18 months after receiving the
complete application. The permitting autnority should also
establish reasonable procedures to prioritize review of
permit applications, especially in the case of applications
for new construction or modifications as defined in Title I.
C. The EPA Program Oversight
Federal authority for oversight of State operating
permit programs is described in section 70.10. Such
oversight activities include situations where a state fails
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to submit an approvable permit program, or EPA determines
that a permitting authority is inadequately administering
and enforcing a permit program or an approved permit fee
program.
(1) State Failure to Submit A Program
The EPA must apply sanctions to a state where the
Governor has not submitted a program within 18 months after
the deadline for submittal, or where 18 months have passed
since EPA disapproved the program in whole or in part
[502(d)(2)(B)]. The sanctions are the same as those in
Title I: a highway funding cutoff, and a two-to-one offset
ratio for new or modified sources [179(b)]. The EPA may
apply the offset ratio sanction only in areas where the
failure to submit or disapproval relates to an air pollutant
for which the area is designated nonattainment. One
sanction may be applied any time during the 18-month period
following the date required for program submittal or program
revision [502(d)(2)(A)]. The EPA must apply one of these
sanctions after the above-referenced periods elapse. If the
EPA finds a lack of good faith effort on the part of the
State, both sanctions are to apply until the State comes
into compliance with the requirements of Title V
[179(a)(4)J. If the State has no approved program 2 years
after the date required for submission of the program, EPA
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must promulgate, administer, and enforce a Federal permit
program for the State [502(d)(3)].
If the EPA determines that a State's fee program is not
approvable or that a permitting authority is not adequately
administering an approved fee program, the Agency has the
authority to collect reasonable fees from the permittees to
cover the costs of administering the program. Any source
that fails to pay fees shall be subject to additional
penalties. Fees, penalties, and interest collected by the
EPA will be deposited in a special U.S. Treasury fund for
permitting activities and held for future appropriation.
(2) State Failure to Implement a Program
Whenever EPA determines that a permitting authority is
not adequately administering and enforcing a program, EPA
must notify the State [502(i)(l)]. If EPA determines that
the failure to administer and enforce the program persists
18 months after EPA's notice to the State, EPA must apply
the same sanctions in the same manner as required for a
failure to submit an approvable program [502(i)(2)]. The
EPA has the option of imposing any one of the sanctions
before the 18-month period has passed [502(i)(1)]. If the
State has not cured the failure to administer and enforce
the program within 18 months after EPA's notice, EPA must
promulgate, administer, and enforce a Federal permit program
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within 2 years after the notice to the State [502(i)(4)j.
EPA will promulgate under Part 71 a Federal permit program
which the Agency will administer and enforce where the State
fails to correct its program.
D. Complete Permit Applications
Each State program must establish specific criteria to
be used in defining a complete permit application. A
complete application is one that the permitting authority
has determined to contain all the necessary information
needed to begin processing the permit application. The
permitting authority must provide notice to the source that
a complete application has been received. In the event that
no notice is provided to the source within 30 days after
receipt of the application by the permitting authority, the
application shall be deemed complete.
A source which files a timely and complete application
for a permit or a renewal will not be liable for failure to
have a permit if the permitting authority delays in issuing
or reissuing the permit, provided the delay in issuing the
permit was not due to the applicant's failure to respond in
a reasonable and timely manner to written requests from the
permitting authority for additional information needed to
evaluate the application. This protection does not apply to
sources requiring NSR permits because they must have
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operating permits before operating the new source or major
modification [503(d)V In general, a complete application
must be submitted according to the transition schedule
approved within the program and in a timely way for
subsequent renewals. "Timely" for renewals is being defined
as submitted 18 months prior to expiration of the permit,
unless some other time is approved by the Administrator.
All complete applications must contain information
which identifies a source, its applicable air pollution
control requirements, the current compliance status of the
source, the source's intended operating regime and emissions
levels, and a certification of truth, accuracy, and
completeness by a responsible corporate official. Each
permit application must, at a minimum, include a completed
standard application form (or forms) and a compliance plan,
which describes how the source plans to achieve a: I/or
maintain all applicable air quality requirements under the
Act. The plan must include a schedule of compliance and a
schedule for the source to submit progress reports to the
permitting authority no less frequently than ever/ 6 months
and to submit a compliance certification report at least
once a year. Parts 71A-74 will contain specific
requirements for acid rain affected sources regarding
compliance schedules, progress reports, and compliance certifications
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The minimum data elements proposed for inclusion in all
standard application forms, as well as the basic
requirements for compliance plans, are presented in section
70.5 of the regulations. With the exception of certain
Federal programs (e.g., acid rain), EPA will not require
that any specific form be used by States as long as the
minimum data elements are provided to EPA. However, the
Agency will encourage the use of certain model forms as a
preferred way to meet the requirements of section 70.5.
Additional information may be required from some
subject sources. Those located in nonattainment areas under
Title I, Part D of the Act may be required to fulfill the
emissions statement requirements for certain sources of
VOC's and nitrogen oxides (NOx). Similarly, sources of
hazardous air pollutants subject to section 112 which are
attempting to comply with alternative emissions limits will
also need to submit additional information.
E. Permit Content
The State regulations required under Title V and
proposed in section 70.6 must assure that permits meet all
applicable requirements of the Act and include the
following:
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o A fixed term, not to exceed 5 years
[502(b)(5)(B)], except that affected sources under
Title IV must have 5-year fixed terms [408(a)];
o Limits and conditions to assure compliance with
all applicable requirements under the Act,
including requirements of the applicable SIP
[504(a)] and Title IV;
o A schedule of compliance, which is defined as a
schedule of remedial measures, including an
enforceable sequence of actions or operations,
leading to compliance with applicable requirements
under the Act [504(a) and 501(3)];
o Inspection, entry, monitoring, compliance
certification, recordkeeping, and reporting
requirements to assure compliance with the permit
terms and conditions, consistent with any
monitoring regulations that EPA promulgates under
section 504(b) and Title V [504(c)];
o A provision describing conditions under which any
permit for a major source with a term of 3 or more
years must be reopened to incorporate any new
standard or regulation promulgated under the Act
[502(b)(9)];
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o Provisions under which the permit can be revised,
terminated, modified, or reissued for cause; and
o Provisions ensuring operational flexibility within
a permit so that certain periodic changes can be
made within a permitted facility without a permit
revision, provided that no "modification" (as
defined in Title I of the Act) would occur and a
notice is provided to the permitting authority at
least 7 days in advance [502(b)(10)].
o A provision that nothing in the permit or
compliance plan issued pursuant to Title V of the
Act shall be construed as affecting allowances
[408(b)].
The operational flexibility provision contained in
Title V must be implemented carefully and fairly so that a
source can respond quickly to changing business
opportunities while the permitting authority is assured that
the source will meet all the applicable requirements of the
Act. Permit provisions designed to provide operational
flexibility must be clearly highlighted for EPA review.
Several approaches to achieving this flexibility in permits
are described in section IV.F.(5) of the preamble, and EPA
solicits comments on these and any other suggested methods.
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F. Permit Issuance and Review
Proposed regulations concerning the processes for
permit issuance, review, renewal, revision, and reopening
are found in section 70.7. Briefly, these include:
(1) Timing of Permit Application, Review, and Issuance
Sources required to have a permit must submit a
complete permit application and compliance plan to the
permitting authority within 12 months of the effective date
of the State program. The permitting authority may
designate a period less than 12 months for initial
submission of applications. Permit applications and
compliance plans required under Title IV of the Act (acid
rain) must be submitted on a different schedule from those
required under Title V. Phase II S02 permit applications
and compliance plans are due to the States by January 1,
1996 [408(d)(2 . States must act on these applications by
December 31, 1997 [408(d)(3)]. These applications and
compliance plans will be binding on the source until a
permit has been issued. NOX applications will be due
January 1, 1998.
(2) Permit Notification to EPA and Affected States
The permitting authority must provide notice to certain
States and EPA of permit applications received and proposed
permits. It must submit to EPA the following:
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o The application for any permit, renewal, or
revision, including the compliance plan, or any
portion EPA determines it needs to review the
application and permit effectively; and
o Each permit proposed to EPA and each permit issued
as a final permit by the State [505(a)(l)].
In regard to notification of States, the permitting
authority is required to notify all affected States of each
permit application and each permit submitted for public
comment. The authority must also notify each State within
50 miles of the applicant source. The permitting authority
must give all such States an opportunity to submit written
recommendations for the permit. If the authority refuses to
accept those recommendations, it must provide its reasons
for refusal in writing [505(a)(2)].
The EPA may waive its own and neighboring States'
review of permits for any category of sources, except major
sources, either when approving an individual program, or in
a regulation applicable to all programs. The EPA may also
waive its own right to review, but maintain the requirement
for a State to notify neighboring States [505(d)]. During
Phase II of the acid rain program, the Agency does not
intend to waive its own right to review for affected
sources.
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(3) The Agency Review and State Response
The EPA must by law object to any permit that is not in
compliance with the applicable requirements of the Act,
including the applicable implementation plan. If EPA
objects within 45 days after receiving either the proposed
State permit or the notice that the permitting authority has
refused to adopt a neighboring State's recommendations for
the permit, the permitting authority must respond to EPA in
writing. The EPA must pr /ide the permitting authority and
permit applicant a statement of reasc ? for the objection
The permitting authority may not issue the permit with
respect to Title V if EPA objects, unless it revises the
permit to meet EPA's objections. If the auth -ty has
already issued the permit, EPA will modify, terminate, or
revoke the permit, and the permitting authority must reissue
it to meet EPA's objection [505(b)(3)]. The permitting
auth..ity has 90 days after EPA's objection to revise the
permit (unless the permitting authority does so first) . If
the permitting authority fails to do so, EPA must issue or
deny the permit [505 (c)].
( 4 ) Judicial Revi and Public Petition
An approvable program must provide for judicial review
in State court of the permit action where initiated by the
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applicant, anyone who participated in the public comment
process, and any other person who could obtain judicial
review of the action under applicable law [502(b)(6)].
Within 60 days after the expiration of the 45 day EPA
review period, any person may petition the Administrator to
veto a permit if EPA fails to object. The objections in the
petition must have been raised during the comment period on
the permit provided by the State issuance process, unless
the petitioner shows that it was impracticable to raise the
objections at that time. The petition shall not postpone
the effectiveness of a permit that has issued.
The Administrator shall grant or deny the petition
within 60 days after the petition is filed. The EPA must
issue an objection if the petitioner demonstrates that the
permit is not in compliance with the Act, including the
applicable SIP and Title IV requirements. If the
Administrator denies the petition, the denial is subject to
review in the Federal Court of Appeals under section 307
[505(b)(2)].
Where EPA objects to a permit and the State fails to
meet EPA's objection, EPA must then issue or deny the
permit. The Federal Court of Appeals may review EPA's final
action in issuing or denying the permit under section 307.
Title V provides that EPA's objection to a permit is not
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subject to judicial review until EPA takes final action on
the permit [505(c)].
(5) Permit Shield and Reopenings
Section 504(f) of the Act identifies the permit shield
provision of Title V, which enables States to provide
sources with greater certainty as to their legal obligations
under the Act. This section establishes that if a source
complies with its permit, the reviewing authority may deem
the source to be in compliance with all provisions of the
Act included in the permit, and with all provisions which
the permitting authority specifically determiner4, in the
permit, to not be applicable. The EPA encourages States to
employ the "permit shield" routinely to help stabilize the
permit process and give greater certainty to the regulated
community.
The EPA is soliciting comment on the potential scope
and effect of the permit shield. It is rossible to read the
shield provision narrowly, limiting its protection to those
requirements the permit explicitly addresses. The shield
provision could also be interpreted broadly, protecting a
source from enforcement of a whole class of Act requirements
if the permit addresses any one of those requirements.
Under either interpret tion, EPA may also limit the
scope of the permit shield by rule. Where EPA is proposing
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a broad interpretation of the shield in today's notice, the
Agency intends to prohibit use of the shield in cases where
the source undergoing the permit issuance, modification, or
renewal process would be affected by an outstanding
determination by EPA under section 110 of the Act that a SIP
is inadequate (a "SIP call") at the time the permit is being
processed. In no event can any source seeking to obtain or
renew a Part 70 permit be shielded from enforcement action
that results from current violations of any applicable
requirements (including orders and consent decrees) that
have occurred before the permit is issued.
Any approvable program, at a minimum, must require that
the permitting authority will revise all permits with terms
of 3 or more years to incorporate applicable requirements
under the Act that are promulgated after issuance of the
permit. Such revisions must be made using the notice and
comment procedures for permit issuance, and must be made
within IS months after the promulgation of the new
requirement. No revision is required if the effective date
of the requirement is after the expiration of the permit
term [502(b)(9)]. The EPA is proposing to interpret the
provision as being applicable to major source permits with a
remaining life of 3 or more years.
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Approvable programs also must require that the
permitting authority may terminate, modify, or revoke
permits for cause [502(b)(5)(D)]. "Cause" may exist when:
(1) the permit contains a material mistake made in
establishing the emissions standards or limitations, or in
other permit requirements, or (2) revision is necessary to
protect the public health or welfare and the environment.
For purposes of acid rain, permit revision procedures will
be governed by Part 71A.
Phase II acid rain permits will need to be reopened to
incorporate nitrogen oxide provisions, which are not due
until 1998. Excess emission offset plans and all allowance
allocations and transfers, however, shall be deemed
incorporated into each unit's permit, upon recordation or
approval by the Administrator, without further permit
revision and review.
If EPA finds that cause exists to reopen a permit, EPA
must notify the permitting authority and the source. The
permitting authority has 90 days after receipt of the
notification to forward to EPA a proposed determination of
termination, modification, or revocation and reissuance of
the permit. The EPA may extend the 90 day period for an
additional 90 days if a new application or additional
information is necessary. The EPA then may review the
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proposed determination under the review procedures of permit
issuance. If the permitting authority fails to submit a
determination or if EPA objects to the determination, EPA
may terminate, modify, or revoke and reissue the permit.
The EPA must provide notice and "fair and reasonable
procedures" when it terminates, modifies, or revokes and
reissues a permit [505(e)]. The Agency proposes that any
permit reopenings accomplished by the permitting authority
will supersede any applicable portion(s) of a permit shield
that is in effect.
(6) Permit Revisions
Section 502(b)(6) is not clear with respect to how
permit revisions are to be processed. The EPA is today
proposing that there are three types of operational changes
that are not allowed for under the permit pursuant to the
operational flexibility provisions of section 502(b)(10)
[IV.F.] as previously discussed. Instead, they trigger the
need for revision to permits prior to their renewal.
The first class of permit revisions are minor permit
amendments. These changes are either insignificant ones
which adjust details not important to air quality (e.g.,
change in source name) within Part 70 permits or changes
which have been already reviewed and processed under new
source review procedures approved into the SIP. Changes
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qualifying as minor permit amendments can be
administratively incorporated into the operating permit by
the permitting authority.
The second class of permit revisions consists of major
permit amendments. These are changes which go beyond the
activities allowed in the original permit that increase the
total emissions allowed under the permit (for any regulated
pollutant from emissions units addressed by the permit) but
by an insignificant amount and provided that all applicable
requirements under the A~t (including the SIP) are met. In
general, emissions increases greater than the more
restrictive of 10 tpy or 40% of the applicable major source
threshold along with any values to be developed pursuant to
section 112(g) will be used to define when the aggregate
effect of emissions changes since the last issuance of the
permit would become significant and require a permit
modification (discussed below).
The process for accomplishing major permit amendments
would typically involve: (i, at least 7 days advance notice
by the source to the permitting authority, the EPA, and
other interested parties that describes the natur nd
timing of the proposed change; (2) the subsequent prompt
administrative incorporation of the changes into the Part 70
permit; and (3) the public availability of the revised
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permit, including the submittal of a copy to the EPA.
Unless the permitting authority objects on grounds that the
proposed change does not qualify for processing as a major
permit amendment within the 7-day time period, the source
can proceed with the change, assuming liability for its
action relative to meeting all applicable requirements of
the Act, including the SIP. A source following these
procedures would be considered to have a valid permit as
required by section 502(a).
The third class of permit revisions is permit
modifications. They involve all remaining types of permit
revisions which do not qualify as minor or major permit
amendments. A permit modification is subject to the same
procedures required for initial permit issuance, including
EPA review and the opportunity for public comment and
hearing. After receipt of an application for a modified
permit, permitting authorities will focus their efforts on
review of the specific changes indicated in the application.
However, they must also evaluate the application to confirm
that it assesses the impacts of such changes on other
aspects of the source's operations and assures continued
ability to comply with all applicable requirements of the
Act.
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Sources subject to requirements of the acid rain
program must hold allowances to cover their emissions of
sulfur dioxide. These sources will have conditions in their
permits prohibiting emissions exceeding the number of
allowances held. Sources holding emissions allowances under
the acid rain program may buy, sell, or trade those
allowances. Allowance transactions registered by the
Administrator will cause automatic amendment of the source's
permit as a matter of law, without following either the
permit modification or amendment proceaures described above.
Regulations governing allowance trading will be promulgated
at 40 CFR Part 73.
(7) Permit Renewal
Each permit is to have a fixed term not to exceed 5
years. Renewal permits are subject to the same requirements
as those applying to initial permits, including the
requirement for a timely and complete application and
compliance plan and processing by the permitting authority
within 18 months of a complete application.
The source will be able to operate after expiration of
the permit only if it has submitted a timely and complete
application for a new permit. As mentioned in the previous
discussion on complete applications [III.D.], the source
applicant still must respond in a reasonable fashion upon
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written request by the permitting authority to provide
additional information needed to develop and issue the
permit to maintain the protection afforded by having a
complete application. Should a permit expire before a
source submits a complete application, the source's right to
operate is terminated until a complete application is filed
with the reviewing authority [503(d)], subject to a grace
period where only administrative penalties would be
applicable. The source is then subject to enforcement
action (for operating without a Title V permit) for any
period of time that it has operated without a renewed permit
and without having submitted a complete application. In
addition, consistent with the established precedent in the
NPDES program under the CWA, EPA is proposing that, except
where inconsistent with State law or as provided in Part 71
for the acid rain portions of a permit, the conditions of a
permit where the fixed term has expired still remain
enforceable until they are replaced by those in a reissued
permit.
G. Fee Demonstration
A key requirement of State operating permit programs is
that States establish an adequate permit fee program.
Regulations concerning fee programs and appropriate criteria
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for determining the adequacy of such programs are set forth
in section 70.9.
An approvable permit program must require the fee payer
to pay an annual fee (or the equivalent over some other
period) sufficient to cover all "reasonable (direct and
indirect) costs" required to develop and administer the
permit program [502(b)(3)(A)]. The EPA proposes to
interpret reasonable costs to include the costs of
administering most air control program activities which
involve sources subject to Title V. All fees collected by a
permitting authority under Title V must be used solely to
support the permit program [502(b)(3)(C)(iii)]. The EPA is
proposing that these fees must cover a broad range of costs,
including:
o Reviewing and acting upon any application;
o Implementing and enforcing the permit, including
any permit issued before enactment of Title V, but
not any court costs or other costs associated with
an enforcement action;
o Emissions and ambient monitoring, including
continuous emissions monitors (OEMS) (where
applicable) and inspections;
o Preparing generally applicable regulations or
guidance;
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o Modeling analyses and demonstrations;
o Preparing inventories and tracking emissions
[502(b)(3) (A) (i)-(vi)];
o Permit-related functions performed by air
pollution control agencies which do not issue
permits directly;
o Development and administration of the State small
business stationary source technical and
environmental compliance assistance program;
o Information management activities to support and
track permit applications, compliance
certifications, and related data entry.
The program must presumptively collect a fee amount
from all permitted sources equal to at least $25 per ton
(1990 baseline) of each regulated pollutant, with the
exception of carbon monoxide [502(b)(3)(B)(i) and (ii)] and
with the further exception that the State is not required to
count emissions of any pollutant from any one source in
excess of 4,000 tpy [502(b)(3)(B)(iii)] (although the State
is not precluded from doing so). The program need not
collect the $25 per ton amount if it can provide a
demonstration that a lesser amount will adequately support
the direct and indirect costs of the program
[502(b)(3)(B)(iv)]. Conversely, States are free to charge
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more than $25 per ton and must GO so if additional funds are
necessary to cover the costs of the program. In any event,
the permitting authority must provide an accounting of how
the collecte^ fees were used to support the program, and
meets the presumptive minimum described above.
The EPA interprets Title V to offer permitting
authorities flexibility in setting variable fee amounts fir
different pollutants or different source categories, as long
as t sum of all fees collected is adequate to offset the
reasonable direct and indirect costs of the permit program.
The per ton fee amount is to be increased each year
according to the Consumer Price Index at the time the index
is published as defined by section 502(b)(3)(B)(v).
Section 408(c)(4) of the Act provides that during the
years 1995 through 1999, no fae shall be required to be paid
under section 502(b)(3) or under section 110(a)(2)(L) with
respect to emissions from any unit which is an affected unit
during Phase I of the acid rain program. The Agency
interprets this provision to mean that EPA may not collect
fees from Phase I affected sources prior to the year 2000,
but that States are not precluded from collecting fees from
these sources for permitting activities pursuant to other
requirements of the Act.
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If EPA determines that a State's fee program is not
approvable, or that a 'State is not adequately administering
or enforcing an approved fee program, EPA may collect
reasonable fees from permittees. Such fees shall be
designed solely to cover EPA's costs of administering the
Federal permit program [502(b)(3)(C)(i)]. Sources failing
to pay a fee assessed by EPA must pay a penalty of 50
percent of the fee amount, plus interest [502(b)(3)(C)(ii)].
The EPA must deposit federally-collected fees, penalties,
and interest in a special Treasury fund, subject to
appropriation, to carry out EPA's permitting activities.
H. Permit/SIP Relationship
The SIP remains the basis for demonstrating and
ensuring attainment and maintenance of the national ambient
air quality standards (NAAQS). The permit program collects
and implements the requirements contained in the SIP as
applicable to the particular permittee. Since existing
SIP's contain a compilation of requirements which represent
the air pollution control efforts of State and local
agencies from the passage of the Clean Air Act of 1970 to
the present, proper implementation of the permit program
will ensure that all existing SIP provisions applicable to a
particular source be defined, clarified, interpreted (as
necessary), and collected into a single document. The
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applicable requirements would include any recent SIP
changes, whether these.changes occurred as a result of a
State or locally developed SIP revision or a Federal
implementation plan (FT?) action by EPA. Where appropriate,
EPA intends to promote the implementation of the permit
program through the use of model permits for critical source
types. Moreover, EPA proposes that, under a broad
interpretation of the shield, certain permits issued in
areas under a SIP call provide no shield from compliance
with any new SIP requirements that are addressed in an
outstanding SIP call
Permits issued pursuant to Title V are not part of the
SIP, but they, like SIP's, are federally-enforceable, where
reliance on tighter conditions found in permits is critical
to satisfy an applicable requirement of the Act, the SIP
demonstration must recognize the new permit limits and
ensure the integrity of the SIP demonstration for attainment
and maintenance of the NAAQS.
At the option of the State, this might involve the
periodic incorporation of these limits into the SIP to
ensure their permanence. The EPA will allow, to the extent
possible, batch submittals and/or expedited processing
procedures for incorporation of these limits into the SIP.
This will include the use of the SIP processing reforms
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announced in 54 FR 2214, January 19, 1989. Today's proposal
also solicits comment on ways to accomplish an upgrade of
the SIP demonstration (relative to the results of the permit
process) without making the SIP's so detailed as to limit
future permit changes at affected sources. One concept
proposed for comment would allow, as a substitute for having
to incorporate every tighter permit requirements into the
SIP, a single broad SIP provision reflecting the aggregate
effect of tighter limits achieved in the permit program.
This provision would also have to ensure that effect
continues to the extent needed to ensure attainment and
maintenance of the NAAQS, and updating the attainment
strategy as needed.
I. New Source Review/Title V Relationship
Decisions made under the NSR and/or PSD programs [e.g.,
best available control technology (BACT)] define applicable
SIP requirements for the Title V source and, if they are not
otherwise changed, can be incorporated without further
review into the operating permit for the source. The Title
V program is not intended to interfere in any way with the
expeditious processing of new source permits. The
permitting authority is required to have reasonable
procedures and resources to assign priority to action on
permits for new construction or modification [503(c)j.
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j. Small Businesses
The EPA has given serious consideration in this
rulemaking to minimizing any undue impacts on small
businesses. Accordingly, EPA is proposing to defer
initially the applicability from the permitting program of
all nonmajor, non-acid rain (affected) sources which would
have been otherwise subject to Title V provisions. These
sources are believed to be disproportionately small
businesses. The proposed exception to this deferral is for
sources in nonattainment areas, where permitting of nonmajor
sources may be deferred only if the permitting authority
makes a showing that such action will not adversely affect
the State's ability to meet its SIP obligations under the
Act. The EPA would continue the permitting deferral for
certain nonmajor sources if permitting them is demonstrated
by EPA to be impracticable, infeasible, or unnecessarily
burdensome in a future rulemaking.
For those small businesses still required to obtain, or
those opting to obtain, a permit, and for other appropriate
source categories, EPA is promoting the use of general
permits where possible. A general permit is a single
permitting document which can cover a category or class of
many similar sources. Public notice and an opportunity for
a public hearing must be provided by the permitting
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authority when considering issuance of a general permit
[504(d)], but not when the individual sources subsequently
submit requests for coverage and are evaluated for a permit
reflecting the terms of the general permit. The permit
issuance process for eligible sources can thus be greatly
simplified which substantially reduces the administrative
burden on both sources and the permitting authority.
Section 507 requires States to establish a small
business stationary source technical and environmental
compliance assistance program. The program must be adopted
as part of the SIP consistent with sections 110 and 112.
The States must submit the proposed program within 2 years
after enactment of Title V [507(a)]. The State must also
establish a Compliance Advisory Panel to monitor
implementation of the program [507(e)].
The program must contain the following provisions for
small business stationary sources:
o Mechanisms for developing information concerning
compliance methods and programs to encourage
lawful cooperation among such sources;
o Mechanisms to assist such sources with pollution
prevention and accidental release detection and
prevention;
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o A State ombudsman for such sources to aid in
implementation of the Act;
o A compliance assistance program to help such
sources determine applicable requirements and
receive permits;
o Mechanisms to assure that such sources receive
notice of their rights under the Act;
o Mechanisms to assure that such sources are
informed of their obligations under the Act,
including referrals to qualified auditors; and
o Procedures to consider requests from such sources
to modify work practice or technological
compliance methods, or the milestones for
implementing such methods. Such requests would be
based on the source's technological and financial
capability. All such modifications must comply
with the Act's requirements, and Federal
regulations may only be modified if the regulation
provides for the modification [507(a)(l)-(7)].
The EPA must establish a program for small business
stationary sources within 9 months after enactment which
must (1) assist the States in developing their programs, (2)
issue guidance about alternative control technologies and
pollution prevention methods, and VJ) in States that fail to
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adopt a program, implement the requirement to assist such
sources in determining applicable requirements and receiving
permits [507(b)]. The EPA must also have a Small Business
Ombudsman to monitor implementation of the program [507(d)J.
Other oversight procedures are contained in Title V to
ensure the effectiveness of this SIP-based program.
To qualify for assistance from these programs, a source
must meet all the following conditions:
o be owned or operated by a person employing 100 or
fewer individuals;
o be a small business under the Small Business Act;
o not be a major stationary source;
o not emit 50 tons per year or more of any regulated
pollutant; and
o emit less than 75 tpy of all regulated pollutants
States may also include a source that is a major
stationary source provided that the source does not emit
more than 100 tpy of all regulated pollutants combined
[507(c)(2)]. The EPA or the State may exclude from the
program any category of sources that has sufficient
technical and financial capabilities to meet the
requirements of the Act without the program. The EPA and
the State must consult with the Small Business
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Administration and provide notice and opportunity for
comment on such exclusions [507 (c) (3) ]..
The State or EPA may reduce any fee required under the
Act for small business stationary sources [507(f^1. When
developing regulations or control technique guidelines
(CTGs) which require continuous emissions monitors (CEMS),
EPA must consider the appropriateness of requiring CEMS at
such sources. This provision does not apply to CEMS under
the acid rain provisions of Title IV [507(g)]. The EPA must
also consider the size, type, and technical capabilities of
such sources when developing CTGs [507(h)].
K. Relationship with Title III fAir Toxics)
The operating permit program will implement existing
section 112 standards for subject sources of hazardous air
pollutants as well as future standards to be promulgated
under section 112 which describe requirements for the use of
maximum achievable control technology (MACT), generally
available control technology (GACT), and any technology used
to reduce unreasonable residual risk. As noted earlier, a
major source under Title III is defined as any stationary
source (or group of stationary sources) located in a
contiguous area and under common control which has the
potential to emit, after controls, of 10 tpy or more of any
hazardous air pollutant, 25 tpy or more of any combination
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of these pollutants, or a lesser quantity of a given
pollutant if the Administrator so specifies.
Section 112(1) of the Act outlines a program for State
implementation of Title III. EPA proposes that the
procedural requirements in section 112(1) to review and
approve/disapprove State programs will be met by the
promulgation of Part 70, specifically as described in
section III.E. of the preamble on permit applications.
The State permit program submittal is required to
contain a legal opinion affirming the adequacy of existing
legal authority to implement and enforce certain Title III
provisions. Authority is needed to accept delegation of
authority to implement and enforce MACT standards, to
develop and enforce case-by-case determinations of MACT for
new, reconstructed, or modified sources where no applicable
emissions limitations have been yet established [112(g)J,
and to develop and enforce case-by-case determinations of
MACT where EPA fails to issue a standard for a major source
category or subcategory within 18 months of the scheduled
promulgation date [112(j)].
The operating permit program will also be the principal
long-term mechanism for implementing alternative emissions
limitations for sources which demonstrate that they have
achieved or have enforceability committed to achieve (by
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certain dates) reductions of 90 percent or more in emissions
of hazardous air pollutants, or reductions of 95 percent or
more in emissions of particulate hazardous pollutants.
Existing sources which make these early reductions before a
standard is proposed will receive a 6-year extension from
the compliance date for meeting the otherwise applicable
standard [112(i)(5)].
L. Relationship With Title IV (Acid Rain)
Title IV mandates a two-phased acid rain control
program which will be implemented, as in the case of other
Act requirements, through Title V operating permits. The
requirements of Part 70 will apply to the permitting of
affected sources under the acid rain program, except as
modified in 40 CFR Parts 71A-74, pursuant to Title IV
[506(b)]. Compliance with the acid rain program
requirements in Parts 71A-74 will not exempt or exclude the
owner or operator of any source subject to those
requirements from compliance with any other applicable
requirements of the Act [403(f)J.
Title IV sets forth certain permitting requirements
that are in addition to the Title V requirements addressed
by today's proposal. Places where the acid rain permitting
prc im may differ from the Title V operating permits
program have been highlighted and some specific statutory
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requirements under Title IV are included in this proposal.
Most specific requirements of the acid rain permit program
will be established in a separate rulemaking, with final
rule promulgation 18 months after enactment. It is
contemplated that the acid rain permit program rules will be
promulgated at 40 CFR Part 71A. Other requirements for that
program will be promulgated at Parts 72-74 of 40 CFR.
References to those sections are used in this rulemaking
where appropriate.
Acid rain-specific permit content requirements must be
included in permit applications, compliance plans, and
operating permits under both phases of the acid rain
program. The permitting process will be different for Phase
I and Phase II. Section 408 provides that Phase I of the
acid rain program (1995 through the end of 1999) will be
implemented entirely through operating permits issued by the
EPA. Phase II (beginning in 2000) will be implemented by
operating permits issued by the States with federally-
approved permit programs, or by the EPA in the event of
State defaults. Thus, Phase II permitting will be in
accordance with the process established by the rules
proposed today, as supplemented by the acid rain-specific
content regulations in part 71A.
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The acid rain permit regulations are anticipated to
include a description of the relationship of trie acid rain
program to other programs incorporated in the permits,
necessary definitions, applicability requirements, and
necessary permit elements not included in the rule proposed
here. These will include: (1) acid rain-specific
requirements for permits and co liance planning, including
require* ^nts for affected sources relying on one or more
alternative compliance method authorized by the statute
(e.g., extensions, substitutions, reduced utilization,
energy conservation or renewable er argy, repowering, and
options; (2) compliance certification and reporting
requirements; (3, requirements for affected source
designated representatives; and (4) excess emission offset
planr g and fee requirements.
Whether permits are issued by the State or EPA, acid
rain permit application forms must be used, including a
provision concerning the binding effect of permit
applications, which must at a minimum state that the a d
rain portion of the permit application and proposed
compliance plan, including amendments thereto, submr'^ted for
an affected source under the acid rain program shall be
binding on the owners and operators, and on the designated
representative for the source, and she il be enforceable as a
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permit for purposes of the acid rain program until a permit
is issued by the permitting authority.
All acid rain permits issued to affected sources must
prohibit: (1) annual emissions by affected units in excess
of the applicable emissions limitation for nitrogen oxide,
(2) annual emissions of sulfur dioxide by affected units in
excess of the number of allowances to emit sulfur dioxide
held by the owner or operator, or the designated
representative, for use in that year by each affected unit,
(3) any person from holding, using, or transferring any acid
rain allowance, except in accordance with regulations at
Part 73, (4) the use of any allowance prior to the calendar
year for which it was allocated, and (5) circumvention of
any other provision of Parts 71A-74, or of the permit
[403(f), (g)]. Standard terms must similarly be included in
permits for acid rain affected sources in order to ensure a
nationally consistent program. In order to facilitate such
standardization, EPA plans to develop forms at the time of
the acid rain rulemaking and to develop support for computer
generated permitting.
When developing permit revision procedures, States
should be aware that the statute forbids requiring permit
revisions as a result of allowance transactions. In
accordance with Title IV, all acid rain allowance
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allocations and transfers will, upon being recorded by the
Administrator in accordance with section 403 of the Act and
Part 73, be deemed a part of each unit's acid rain permit
requirements, without need for any further permit review and
revision. Nothing in a permit shall be construed as
affecting allowances. In addition, no permit revision shall
be required for increases in emissions that are authorized
by allowances held for a unit pursuant to the acid rain
program, provided that the emissions increases authorized
under the acid rain program do not excuse noncompliance with
any other emissions limitation, standard, or requirement
under the Act, including under Title I for the protection of
ambient air quality standards, and that the acid rain
requirements of the permit shall be governed by and
consistent with the regulations at parts 71A-74.
No permit or revisions to it may be issued that is
inconsistent with the requirements of the acid rain program
requirements of the Act or of Parts 71A, 72, 73, and 74.
Examples of safeguards that will be developed under the Part
71A rulemaking which should limit permit revisions include:
(1) no permit revision shall excuse past non-compliance,
(2) permit revisions shall be effective only to the extent
they are consistent with Parts 71A-74, and (3) limits on the
use of the amendment authority, e.g., changes in the
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designated representative for purposes of a source's acid
rain program requirement, shall be supported by a
certification of re-designation in accordance with Part 71A.
Rules for Federal acid rain permitting during Phase I,
and in the event of State defaults during Phase II, will be
published at 40 CFR Part 71A. Acid rain permit content
requirements, which must be included in permits issued by
States with approved programs, will be promulgated at that
time. Public comment is invited at this time regarding the
impact of this general permit program rulemaking on the acid
rain permit program. Public comment in response to the acid
rain rulemaking proposal will, however, only be accepted
with regard to the provisions proposed at that time.
Comments will not be considered at that time reopening
matters addressed by this rulemaking.
IV. Detailed Discussion of th« K«y Aspects of the Proposed
Regulations
This portion of the preamble provides more detail on
selected provisions of the proposed regulations. Issues are
identified and EPA's proposed positions are discussed.
Discussion is also included on the implications of the
regulations and on the way implementation is expected to
occur.
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A. Section 70.1 - Statement of Program Goals
The purpose, benefits, and certain concepts of the
regulatory requirements in Part 70 are introduced in this
section of the regulations. Detailed discussion of some of
these concepts appear subsequently in this preamble. The
key concepts are as follows: (1) the permitting program
generally codifies existing regulatory requirements and does
not impose new control requirements; (2) the SIP will
continue to be the mechanism for demonstrating attainment
and maintenance of the NAAQS; (3) the permits will contain
certain compliance requirements beyond those presently
required by the Act, which EPA will consider federally-
enforceable; (4) States may implement a more extensive
program consistent with the Act; and (5) EPA must implement
a Federal permit program in the event a State fails to
satisfactorily implement its program. This program,
consequently, may be more limited in scope than the State
program.
B. Section 70.2 - Definitions
Many definitions of terms in other parts of the Act or
EPA regulations are utilized in Part 70. In addition, a
number of new terms introduced in Title V and many terms
created in conjunction with developing Part 70 are defined
by this section. These new definitions include terms
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necessary to communicate effectively the new regulatory
requirements, including "complete application," " Part 70
permit," "Part 70 source," "permitting authority," and
"renewal."
C. Section 70.3 - Applicability
(1) Section 70.3(a) - Sources Subject to Permitting
describes program coverage and source applicability by
defining "Part 70 sources." Operating permit programs must
cover the types of stationary sources (except where EPA has
exempted in whole or in part a source category, subject to
certain limitations) previously described in detail
[III.A.], which includes major sources. Section 70.3(a)
covers the sources included in section 501 (a).
Source and Manor Source. EPA wishes to clarify how the
definitions of "stationary source" and "major source" will
be applied under the operating permit programs and to
.explain how these concepts will relate to the definitions of
stationary source currently in effect in other programs
under the Act.
Stationary Source. EPA has patterned its proposed
definition of "stationary source" for the permits program on
the definition for "stationary source" developed for the new
source review (NSR) permitting programs, which includes
three basic elements. A stationary source under NSR
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encompasses all pollutant-emitting activities which (1) are
located on one or more contiguous or adjacent properties,
(2) are under common control or ownership of the same person
or persons, and (3) belong to the same industrial grouping,
meaning the same "major group" in the Standard Industrial
Classification Manual. Under the operating permits program,
EPA proposes to retain all three prongs of the NSR
definition for purposes of defining stationary source.
Manor Source. EPA is taking comment on how to
interpret the section 501(2) definition of "major source."
Section 501(2) p^ /ides, in relevant part, that "the term
•major source1 means any stationary source (or any group of
stationary sources located within a contiguous area and
under common control)1* that are a major source under
sections 112, 302, or Part D of Title I of the Act (emphasis
added). As discussed in the previous paragraph, the
proposed definition of "stationary source" includes the
requirement that the pollutant-emitting activities relong to
the sane industrial grouping, or "major group" in the
Standard Industrial Classification Manual ("SIC code"). The
definition of major source proposed in the regulations,
however, does not distinguish -ong industrial groupings.
EPA proposes to define a major source to include the
combined emissions from all commonly controlled stationary
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sources on contiguous or adjacent properties. The
parenthetical in section 501(2) (emphasized above) suggests
that stationary sources should be aggregated without regard
to SIC code distinctions when determining whether the source
meets the emissions thresholds to qualify as a "major"
source. In summary, EPA will require all commonly
controlled pollutant-emitting activities on contiguous or
adjacent properties to obtain an operating permit without
regard to whether they are within the same standard
industrial classification (SIC) major group, assuming those
activities emit enough pollutants to trigger the emissions
thresholds provided in the Act.
Alternatively, EPA could provide that sources be
aggregated according to SIC code when determining whether
they constitute a "major" source (i.e., as the previous
paragraph defines stationary sources). EPA solicits comment
on whether or not to combine sources according to SIC code
when determining if those stationary sources constitute a
major source under the Title V permit program.
The Amendments require all major stationary sources to
be permitted, even if the Act does not impose other
substantive requirements on the facility. For example, in
some States there are existing major stationary sources in
attainment areas for which there are no applicable emission
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limits in a SIP. Title V requires such major sources to
obtain a permit although, under appropriate circumstances,
States may choose to issue general permits to reduce the
paperwork burden.
Title III requires that EPA publish a list of major and
area source categories emitting one or more of the listed
hazardous air pollutants before EPA sets standards that may
apply to their toxic emissions. Title V requires major
sources to obtain a permit, even if a MACT standard has not
yet been promulgated and the source is otherwise unregulated
under the Act [IV.C.]. The permitting process for many of
these sources, however, will be meaningful. Some of them
which are involved in construction, modification, or
reconstruction, will be subject to new substantive controls
pursuant to section 112(g). It is also unlikely that there
are many major sources to which Title III would be
applicable which would be otherwise unregulated under the
Act. That is, many of the pollutants regulated under Title
III are also VOC's or particulate matter and are regulated
by SIP regulations designed to implement the ozone or PM-10
NAAQS, respectively. As discussed more fully in section
V.E., Title V permits will also be the vehicle by which a
permitting authority can codify emission limits and
monitoring requirements proposed by sources to meet the 90
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or 95 percent early reduction under section 112(i)(5) to
defer application of MACT.
Potential Emissions. In determining whether the amount
of emissions from a stationary source will qualify the
source as major and subject to Part 70, EPA will rely on the
concept of "potential to emit" [302(j), relevant sections of
Part D of Title I, and 112(a)(1)]. In so doing, EPA will
determine potential emissions using the maximum capacity of
a source to emit a pollutant, taking into account any
federally-enforceable physical or operational limitation on
that capacity (including any air pollution control
equipment).
Including the federally-enforceable limitations on a
source in the definition of potential emissions appears to
create a circular definition problem. A source which
enforceably restricts its emissions below the threshold for
major stationary sources may be able to exempt itself from
the permitting requirement, assuming no other provision of
the Act captures that source in the program. However, the
source seeks to exempt itself from one of the very programs
capable of making enforceable the limits that create the
exemption, but must first meet all its substantive
procedures in the process.
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States may address this question using several
techniques. They may decide not to include such operational
limits in the definition of major stationary source for
their operating permitting program, thereby assuring that
such sources are permitted. A program might be able to
permit such sources using general permits designed to impose
capacity limits on a category of sources generically.
States may then issue such sources State operating permits,
without subjecting them to the federally-approved permit
program, and submit those State permits as SIP revisions to
make the limits federally-enforceable. Alternatively,
States may choose to submit their State operating permit
programs to the extent that they focus on smaller sources to
EPA for approval as a SIP revision, provided the programs
meet the requirements EPA has articulated in its approval of
the definition of "Federal enforceability" in the NSR
program. [54 FR 27274 (June 28, 1989).] This would
then create a framework under which federally-enforceable
conditions could be subsequently issued to limit the
potential to emit of borderline sources.
(2) Section 70.3(b)- Source Category Exemptions
discusses additions and exemptions. Section 502(a)
authorizes EPA, consistent with applicable provisions of the
Act, to exempt one or more source categories, in whole or in
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part, from the requirement to have a permit. The EPA must
determine that permitting the source category is infeasible,
impracticable, or unnecessarily burdensome. The EPA may not
exempt any major source from the permit requirements.
The EPA proposes to use the authority available under
section 502(a) to defer initially the applicability of the
Title V program to all sources that would otherwise be
affected but are not major or affected sources under the
Act. This action will lower the administrative burden at
the critical time when State programs first become effective
and are very vulnerable to overload. States will be
required to learn the permitting system and permit numerous
major sources. This will undoubtedly be difficult, even if
EPA defers inclusion of nonmajor sources in the system 5
*
years. The EPA further proposes to end automatically the
exemption for these nonmajor sources on or before a date 5
years from the effective date of the permit program in the
State (approval of either a Part 70 or Part 71 program).
In deciding which of these categories should continue
to be exempted, the EPA will consider the relative
administrative burden associated with reviewing the
prospective category and whether and to what extent this
burden would be acceptable. In determining acceptability,
EPA will consider the possibility of using general permits
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or other alternatives to permitting each source
individually. The EPA. solicits comment and information
concerning which source categories might be especially
appropriate for permanent exemptions (notwithstanding the
possible use of general permits), such as asbestos
demolition and renovation operations under the NESHAP
program and woodstoves under the NSPS program.
There are several additional justifications for this
d? "erral. First, nonmajor sources, by their very
definition, generally emit less than major sources.
Therefore, it is reasonable to concentrate resources on
permitting major sources during the first phase of the
program when those resources will be especially strained.
Second, the definition of a "major source" under Title V is
much broader than under the Act before the Ameriments. The
concept of "major source" now includes relatively small
sources as defined under the toxics provisions of Title III
and the nonattainment provisions of Title I. As a result,
the sources deferred from the program will genera11^ ot be
significant contributors to pollution impacts. Thira, many
of the nonmajor sources deferred from the program will still
be covered by Federal regulations under the Act. Nonmajor
sources that are subject to NSPS or existing NESHAP
regulations will not be required to obtain permits during
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the first 5 years, but will nevertheless be subject to those
regulations. The NSPS. and NESHAP regulations generally
already contain many of the monitoring, recordkeeping, and
reporting requirements which represent one of the major
benefits of the permit program. Therefore, permitting these
sources is less urgent than permitting major SIP sources.
As stated above, a State with an ozone SIP that relies on
emission reductions from nonmajor sources will have to make
a special showing to defer such sources from the program.
Finally, the category of nonmajor sources will
disproportionately include small businesses. It would be
especially burdensome on small businesses to force them
through this program during its inception as the States and
EPA are gaining experience in implementing new programs
under Title V. Small businesses do not have the same legal
and technical resources that are sometimes necessary to
handle successfully a new program. For all these reasons,
EPA finds that permitting such nonmajor sources during the
first 5 years of the program would be unnecessarily
burdensome on those sources.
Today's proposal to defer the initial applicability of
Part 70 non-major sources is limited in two important
respects. First, the initial deferral does not
automatically apply to sources which qualify as a Part 70
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source based on emissions of a pollutant for which its area
of location is classified as nonattainment. Typically, this
will involve ozone nonattainment areas. A permitting
authority which must permit sources in ozone nonattainment
areas may exempt nonmajor VOC and NOx sources from its
program in those areas only if the authority submits to EPA
an inventory of such sources and demonstrates that the State
can assure compliance with its nonattainment area SIP
obligations without permitting such sources during the first
five years of the programs. The EPA must approve the
deferral for such sources. The EPA also solicits comment on
the appropriateness of limiting the scope of the
nonattainment exemption demonstration to only the larger of
the nonmajor sources (i.e., no demonstration needed for
deferred applicability if nonmajor sources are below a
certain size) otherwise subject to Title V or only those
which would not qualify for general permits.
The deferred applicability of certain sources also is
qualified to not preclude a sour-e from requesting and
receiving a Part 70 permit. The EPA proposes that states
allow sources wishing to go into the operating permit
program to do so. Some companies have business reasons to
seek an operating permit; for example, a lender may wish to
determine that air emissions from a facility are permitted
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under the law. As a result, there may be sources that a
permitting authority determines it need not permit for air
pollution control purposes, but which have independent
business reasons to seek operating permits. In such cases,
the Agency also strongly urges the use of general permits
(as discussed below) to minimize any undue burden.
Finally, the Administrator reserves the right to
restrict the presumption for the deferred applicability of
nomnajor sources for any sources subject to a standard under
section 112 which was promulgated after the final date of
these regulations. The EPA under this proposal would decide
during the rulemaking process for the new section 112
standard how the Title V program would apply to those
affected sources which are not major.
In connection with the deferral of nonmajor sources
from the program for the first five years, EPA is soliciting
comment on the waiver of EPA authority to review the permits
for such sources if States choose to include them in the
program. Some States may decide to include nonmajor sources
in their permit programs despite EPA's deferral. Section
506(a) authorizes States to adopt additional permitting
requirements not inconsistent with the Act. Section 505(d)
authorizes EPA to waive the requirement that the permitting
authority notify EPA or neighboring States of each permit
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for nonmajor sources. The EPA could use this authority to
reduce the administrative burden on the permitting
authority, EPA, and the neighboring States. The EPA invites
comments on the advantages and disadvantages of this
approach. The proposed regulations do not provide for such
a waiver, under the assumption that most States will take
advantage of the deferral for nonmajor sources.
In no instance would affected sources under Title IV of
the Act be eligible for an exemption from the permitting
requirements since section 408(a) provides that permits
shall be the vehicle for implementation of the acid rain
requirements of the Act. The Agency anticipates that most
affected sources under the acid rain program, with the
possible exception of voluntary opt-ins or transfer sources,
would be considered "major" under some other title of the
Act and would not be eligible for exemption from the
operating permits program.
(3) Section 70.3fc) - Emissions Units and the Permitted
Facility requires that State programs assure in the
permitting process that all emissions units at the permitted
facility will comply with all applicable Act requirements
for their emissions of all pollutants regulated under the
Act [504(a)]. Section 70.3(c) defines the concept of the
"permitted facility." The presence of a "Part 70 source" as
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defined in section 70.3(a) creates the obligation to permit
the facility. Once that obligation attaches, the permitting
authority must permit the entire "permitted facility."
Section 70.3(c) defines the permitted facility as all
the emission units under common control and on contiguous or
adjacent property with the Part 70 source that triggered the
permitting obligation. Including all these emission units
in the permit does not mean that permits must impose
emission standards or limits on all such units. The permit
must impose any "applicable requirements" that apply to
those emission units. The permit application must identify
all units in the permitted facility, however, and the
permitting authority's fee program should account for the
emissions from all such units. The concept of the permitted
facility may require the permitting of more sources than
explicitly required under section 502(a). Under section
502(a), however, EPA is authorized to designate sources
which must receive a permit beyond those enumerated under
section 502(a). The basis for this designation is the need
to make permits a comprehensive statement of a facility's
obligations and of the applicable requirements at a
facility.
Accordingly, all the activities emitting regulated
pollutant at the source must be addressed in the application
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for a permit, even though only one emissions unit has
triggered the Title V permitting requirement or is directly
subject to established requirements (e.g., a MACT standard
or SIP limit). Conversely, the Title V permit need not
contain limits for emission units not otherwise regulated
under the Act (e.g., regulated by the SIP and/or under
sections 111-112). The permit presumptively will contain
the emissions rate upon which fees are based for each
regulated unit that emits "any quantity" of a regulated
pollutant.
Some States prefer to permit by emissions unit,
especially at large sources with many emissions units. As
long as the collection of individual emissions unit permits
impose the same or more restrictive requirements as would be
required under a permit for the whole source and the State
permits the entire source according to the Act's schedule,
the State may permit each unit individually, or in groups
within a source. Where feasible, the entire facility should
be permitted at one time. States are encouraged to permit
all logical or similar emissions units at the same time.
The determination of whether a source is a major source
requiring a permit depends on the magnitude of emissions
from the whole source (i.e., within the fenceline of the
entire facility). If a source has several emission units
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which the State does not regulate and subsequently permit,
the State's application process must identify them if the
regulated and nonregulated emissions together would make the
source major, and the State's fee schedule must account for
the nonregulated emissions. One way to implement such a
program may be to issue each source a permit with source-
wide information and general requirements, and then
incorporate more detailed individual emissions unit permits
that are issued to cover those units specifically regulated
under the Act.
(d) Section 70.3fd) - Pollutant Applicability clarifies
which pollutants must be included in the permits of sources
subject to the Title V operating permit programs. As under
existing EPA policy developed in the NSR program
[45 FR 52676, August 7, 1980], if one or more regulated
pollutants emitted by a source triggers the requirement to
have an operating permit, the permit must account for all
the pollutants subject to regulation under the Act emitted
from that source, even if those pollutants do not themselves
meet the applicable "major" threshold under the Act. This
is appropriate since Part 70 permits must assure compliance
by the source with each applicable standard, regulation, or
requirement under the Act and not just the ones for which
the source has major emissions [504(a)]. For example, a voc
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source in a severe ozone nonattainment area that has the
potential to emit 30 tpy VOC is a major stationary source
under Part D of Title I and requires a permit. If that
source also has a small process boiler which has the
potential to emit only 25 tpy of sulfur dioxide (S02) in an
S02 attainment area, the boiler must also be included in the
permit, at least for the purposes of emissions information
and fee calculation, even in the unlikely event the SIP
imposes no limits on that boiler's operation.
The EPA also wishes to clarify that nitrogen oxide
(NOx) emissions, as well as nitrogen dioxide N02 emissions,
are included under the definition of "regulated pollutant."
The NSPS contains restrictions on NOx emissions
[40 CFR 60.44]. The acid rain program also regulates NOX.
Therefore, NOx emissions are included in the definition of
"regulated pollutant" under section 502(b)(3)(B)(ii)
[40 CFR 50.11] and in determinations of a source's
potential to emit and fee calculations must account for all
NOx emissions.
(5) Section 70.3(el - Fugitive Emissions specifies
that, once a source is found to be subject to the Title V
permitting requirements, fugitive emissions at a subject
source are to be included in the total emissions of a source
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for all purposes of permitting, including collection of
fees.
The EPA is also proposing to consider fugitive
emissions in determining if a source would be major with
respect to section 302 for only those source categories that
have previously been subjected to the rulemaJcing required in
section 302(j) [45 FR 52676 (August 7, 1980)].
D. Section 70.4 - State Program Submittals and Transition
(1) Section 70.4 fa) - Date for Submittal
This section of the regulations requires States to
submit their operating permit programs to EPA for approval
within 3 years of enactment (i.e., by November 14, 1993)
[502(d)(l)]. This deadline is a fixed date and does not
depend on the date EPA promulgates the regulations in this
proposal. This section of the regulations also requires a
State to revise the existing, approved operating permit
program and submit it to EPA for approval within 1 year of
any revision to the Part 70 permit program requirements that
EPA determines would necessitate such a change. Permitting
programs that would be implemented within a State, such as
by local agencies, would have to be designated by the
Governor and submitted within the 3 years after enactment.
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(2) Section 70.4fb) - Elements of the Initial Program
Submission
There are certain minimum critical elements that need
to be included in an acceptable progran when it is submitted
to EPA for approval. The submittal must include the State-
adopted regulations establishing the permit program and the
procedures the permitting authority will use to apply the
permitting regulatory requirements. The EPA also solicits
comment on whether the State statutes that authorize the
regulations and provide for judicial review of final permit
decisions should also be part of the submittal.
The submittal must include a legal opinion that the
permitting authority has the authority to carry out the
program and perform the following tasks: First, the
permitting authority must be capable of issuing permits and
establishing a fixed term of five years for affected sources
under the acid rain program, and a fixed term for each
permit for all other sources not to exceed five years.
Second, permitting authorities must assure that the permit
contains each of the emission limits and any other
requirements that apply to the source from the SIP and other
Act requirements. Specifically, the enabling legal
authority must allow the permitting authority to impose and
enforce all Federal requirements (including those to be
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implemented through a FIP) and to impose and enforce any
more stringent requirements imposed by the permitting
authority in the permitting process. Third, the permitting
authority must be able to terminate the permit if necessary
or revoke and reopen the permit to modify its content for
appropriate reasons [70.7]. Fourth, the permitting
authority must be able to enforce the requirement to obtain
a permit, to enforce the provisions in the permit [70.11],
to collect applicable permit fees applied to the source
[IV.I.], to collect civil penalties assessed for each
source's violation of its permit, and to apply appropriate
criminal penalties as a result of permit violations. Fifth,
the permitting authority must be able to provide public
access to the permit application, the permit itself, the
compliance plan, and reports, except that confidential
information may be submitted separately and not be made
available to the public. Sixth, the permitting authority
must agree to comply with program-specific regulations such
as those established under Title IV (the acid rain program).
No permit program will be approved in whole or in part,
unless it is adequate to ensure timely and effective
implementation of, and compliance by affected sources with,
all requirements established under the acid rain program.
Program adequacy shall ensure adequate resources to support
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inspections necessary for ensuring compliance by affected
sources with emissions monitoring requirements of Part 72
[502(f)]. Finally, the permitting authority must also be
able to ensure that the source ii notified that no Title V
permit has been issued if EPA objects to it within the
timeframe allowed for EPA review of permits.
The submittal must contain the permit application form
or forms to be used, the criteria the State will follow in
determining if a source has provided the required
information and filled out the application completely, and
the procedures the State will use in processing the
applications in an expeditious manner. The Agency currently
intends to require the use of forms for the acid rain
program by States with approved permit programs. Forms can
be revised periodically as the State program develops
without the need to go through rulemaking every time (i.e.,
through implementation agreements). The EPA also recommends
that the submittal contain certain procedures for insuring
compatibility with the national data system (AIRS). The
requirement for completeness criteria is in section 70.5.
The procedures for processing applications must be in
accordance with the requirements ~n section 70.7 for
renewing, revising, and reopening permits.
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The submittal must contain a demonstration that the
revenue collected under the permit fee program is sufficient
to cover the reasonable direct and indirect costs of
developing and administering the permit program. The
demonstration should include sufficient revenue to fund air
pollution control agencies which do not issue permits
directly but carry out permit related activities. The
permit fee program is discussed under section 70.9. This
demonstration must be accompanied by a Statement from the
Governor or his designee (e.g., local official in the case
of a local agency program) that the program has adequate
personnel and funding to implement the program. The
statement need not provide certain details such as those
related to the number of positions. The statement must
describe the air quality program and where the permitting
function fits in, details about the personnel who will
administer the program, and a cost estimate for developing
and administering the program for the years covered in the
transition period after the program is approved.
The EPA is also proposing to require as part of the
program submittal a commitment that the permitting authority
submit to EPA, at least annually, information about
enforcement activities relevant to the permit program. This
information would include but not be limited to the number
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of criminal and civil enforcement actions commenced and
concluded by the permitting authority, the penalties, fines
and sentences obtained in those actions and the number of
administrative orders issued. This information is crucial
for EPA to properly be able to fulfill its oversight duties
regarding whether the program is being properly implemented
and enforced.
The EPA is concerned that lapsing of permits or the
conditions and terms of permits would cause serious
enforcement problems and leave the State and EPA without
important monitoring information that sources will be
required to submit under the terms of the permit. For
example, the particularized and detailed control
requirements in the permit would become unenforceable the
day the permit expired; States and EPA would be able to
enforce only the requirements in the underlying regulations.
Thus, if the source had submitted a timely and complete
application, it could continue to operate in the event the
State failed to act on the application in a timely manner,
with possibly no clear control limitations applying to the
source.
The EPA is proposing to address this potential problem
in several ways. First, under the proposed regulations,
sources generally are required to submit their application
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for a permit renewal 18 months before the end of the permit
terms. This is the maximum allowed time period for action
on the permit by the permitting authority. Second, the
proposed regulations allow EPA to issue a permit itself if
the permitting authority has failed to act on the permit
during the time allowed to do so.
Finally, EPA is proposing to require that the state
permit program include a requirement under State law that,
in the event that a source has submitted to the permitting
authority a timely and complete application for a permit
renewal is submitted to the permitting authority before
expiration of the permit term, (1) the permit shall not
expire until the renewal permit has been issued or denied,
or (2) all the conditions and requirements of a permit shall
remain in effect until the renewal permit has been issued or
denied.
The first option, which EPA encourages States to adopt,
is consistent with the way that Federal permits issued under
the Federal Administrative Procedure Act remain in effect if
a timely and sufficient application for renewal has been
submitted [5 U.S.C., section 558(c)]. EPA is concerned,
however, that having the permit itself remain in effect may
not be allowed under some State administrative procedure
acts. The EPA is therefore proposing to give States the
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option of adopting, under State law, a requirement that all
terms and conditions of the permit remain in effect when the
permit lapses after a timely and complete application has
been submitted. The substantive effect of choosing one
option or the other should be minimal at most. The EPA
solicits comment on these and other proposed ways of dealing
with the lapsing permit problem.
The EPA believes that a transition plan for processing
permits is also a necessary part of the State program
submittal. This plan should provide a phased schedule for
acting on the initial submission of all permit applications,
with the sources having the greatest impact on air quality
presumptively being acted upon first. The EPA solicits
comment on other acceptable strategies for initially
processing permits and for keeping the original information
current and appropriate for processing.
To meet the Title V requirements, the plan would need
to provide that the initial permit applications be submitted
no later than the first year after program approval, and
that State action on them be spread out over a period up to
3 years after program approval, with approximately one-third
of the applications being acted on in each of the 3 years.
The State's transition plan will likely need to require some
applications to be filed before EPA's approval of the
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program so that the State can act on the first third of the
applications within the first year after program approval.
When the permitting authority plans their timetable for
initial issuance of Title V permits, they should be aware
that initial S02 permits for Phase II acid rain affected
sources must be issued by December 31, 1997. Permit
applications for NOX are due on January 1, 1998 [408(d)(3)j.
In addition, EPA proposes to require States to submit a
timetable for phasing in the reissuance of Part 70 permits
in the future upon their renewal. Again, EPA encourages the
States to act on permits for sources having the greatest
impact on air quality first.
The EPA believes the most important step in terms of
program development is eliminating legislative impediments
to meeting operating permit program requirements. New
authority may be needed to develop regulations, issue
permits to sources (including noncomplying ones), charge
fees and retain them in the air agency, collect penalties,
hire sufficient levels of personnel, and provide for
adequate public participation (including the opportunity for
public hearings). Since many State legislatures meet only
periodically, the schedule for legislative sessions could be
a critical factor in States obtaining the needed authority
in the appropriate time period. States need to consider
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this possible constraint and take whatever action is
necessary as early as possible to obtain the needed
authority and eliminate any complications that could be
caused.
While in the process of developing legislative
authority for an operating per t program, the State may
also want to consider including legislative authority
necessary to implement other titles of the Act. For
example, to obtain approval for the acid rain portion of the
operating program, State legislative authority must be
sufficient to ensure that no permit will be issued that is
inconsistent with the requirements of the acid rain program
requ rements of the Act, or of this Part, or of Parts 71A,
72, 73, and 74 [408(A)]. State law or regulation should
limit the State/local's authority to modify acid rain
program requirements, and the State authority should ensure
adequate inspection resources to ensure compliance with
emissions monitoring and compliance program requirements. A
certification from the Attorney General or other authorized
official that adequate legal authority exists will be needed
to support the permit program submission.
Another important aspect of State operating permit
program will be to ensure that the agency is capable of
carrying out the program. This will primarily involve
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hiring and training of personnel, along with support
functions, such as larger office space and increased
administration capabilities. States will face early
program-building demands, the degree depending on the
State's current involvement in operating permits. The
demand for this infrastructure will increase when a State
wishes to submit a program early. Efforts to ensure this
capability is one of the first steps a State should make.
Grant funds provided for by section 105 of the Act have been
provided to support program build-up. These funds are meant
to give programs in part the boost needed until permit fee
provisions become effective and State permitting efforts
become self-sufficient through the permit fee revenues. The
EPA solicits comment on other ways to accomplish "ramp up"
of State capabilities. These might range from interim
program approvals to an initial registration of subject
sources coinciding with an early partial fee collection
[IV.I.].
More Expansive State Operating Permit Programs and
Permit Provisions. In part, section 506 specifies that
nothing in Title V shall prevent a State from establishing
additional permitting requirements as long as they are not
inconsistent with the Act. Public comment is solicited on
how to resolve three issues related to this principle.
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These issues involve whether, and to what extent, EPA can or
should approve and, make federally-enforceable (l) more
expansive source coverage than required by Title V, (2)
additional permit conditions not expressly needed to meet
federally recognized requirements in applicable
implementation plans or national standards, and (3) state
provisions which limit the flexibility of source owners or
operators to less than that provided for in Title V.
The first issue may arise quite frequently, since most
existing State and local operating permit programs typically
apply more broadly than to just the major sources and others
covered by Title V. The EPA proposes to approve a broader
program containing more sources or source categories than
required by EPA if a State submits one, but EPA reserves the
right to promulgate a narrower program for EPA
implementation should the State default on its
implementation obligation. The EPA believes that this
proposal is fully consistent with section 116, which permits
States to adopt more stringent air pollution requirements
than required by the Act; it is also consistent with
506(a), which states that nothing in Title V shall prevent a
permitting authority "from establishing additional
permitting requirements not inconsistent with [the] Act."
The EPA may also opt to waive review of some or all of the
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permits for the additional sources under a more inclusive
State program, depending on the degree of administrative
burden, or for other reasons [505(d)]. Comment is solicited
on whether and to what extent EPA should approve broader
State programs.
The second issue is that States may also wish to
include requirements from State control programs in an
operating permit that are not required by Federal law. For
example, the State may have a program designed to enforce
specific ambient concentrations of toxic air emissions which
as yet have no counterpart under Federal law. The question
becomes whether and to what extent those provisions
translated into more rigorous emissions limits on the source
become federally-enforceable (i.e., enforceable under the
Act by the United States or citizens) if the State includes
them in a permit and EPA does not veto that permit.
The EPA is proposing to presume that all the provisions
of a permit will be federally-enforceable (subject to
enforcement discretion on the part of the Agency) unless EPA
exercises its authority to object to a permit provision for
the reasons set forth below. Thus, the toxic provisions
discussed above would be federally-enforceable, but
provisions aimed at abating noise pollution would not. The
EPA does not wish to encumber the permit issuance process by
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requiring State permitting engineers to make complicated
judgments about which permit provisions enforce Federal
requirements and which relate only to State programs. Each
provision, however, will have to be legally and practically
enforceable for EPA to consider it federally-enforceable,
but EPA does not intend to routinely sort out provisions
relating to State programs included in operating permits,
unless those provisions bear no reasonable relation to the
purposes or provisions of the Act.
On the other hand, a State may have an interest in
segregating out from the operating permit those provisions
in a permit that it does not wish to be federally-
enforceable. The proposed regulations allow a state to do
this. If it wants to take this approach, it would be the
option of the permitting authority to identify such
provisions, and the source to comment during the comment
period for the proposed permit on the legal status of
provisions which it believes are not or should not be
enforceable by EPA.
Where EPA is confronted with a provision unrelated to
any requirements or goals of the Act, EPA may object to
incorporating those provisions into the final permit.
However, since section 116 allows the States to regulate air
pollution more strictly than the Act requires, and section
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506(a) allows the States to establish additional permitting
requirements not inconsistent with the Act, EPA expects that
it would be rare for the Agency to object to a permit
provision simply because it would enforce requirements that
are not strictly required by federally-mandated programs, so
long as those requirements relate to the Act goals and
refinements in some material way.
For the reasons stated in the discussion of the first
issue, as well as those set out below, EPA believes that
this proposed position is supported by the language and
intent of the Act. Sections 113 and 304 of the Act have
been amended to allow enforcement of Title V permits.
Nothing in the text or legislative history of those sections
in any way suggests that such enforcement should be
precluded for provisions that are more stringent than
required under the Act. Moreover, as noted above,
sections 116 and 506(a) generally allow States to adopt more
stringent requirements. Section 116 does include an
important qualification, however. It provides that a State
may adopt "any requirements respecting control or abatement
of air pollution." or "any standard or limitation respecting
control or abatement of air pollution." (emphasis added).
Thus, Federal enforceability of provisions that are not
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related to at least the progress of the Act does not appear
to be contemplated by the Act.
The third issue concerns whether State operating permit
programs can differ from Act requirements aimed at
protecting sources once they meet certain requirements, in
other words, may States be "more stringent" than Title V by
removing some protections that Congress apparently intended
to ensure. Examples of these provisions include:
(1) section 502(a) which shields sources from the
requirement to have a valid Title V operating permit, that
have filed a timely and complete application but have not
yet received their permits (i.e., application shield), and
(2) section 502(b)(10) which contains the requirement for
States to allow sources operational flexibility within
permits.
As noted previously, section 116 of the Act authorizes
States to be more stringent than EPA rules in their
requirements, as long as they relate to control of air
pollution. Section 506(a) perhaps may qualify this long-
standing authority, however, by stating that nothing in
Title V shall prevent a permitting authority fr«m
establishing additional permitting requirements "not
inconsistent with the Act" (emphasis added). Moreover, EPA
believes that even section 116 would not allow the Agency to
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grant complete program approval of a State permit program
that does not meet all the requirements of section 502(b),
including the requirement in section 502(b)(10) that States
allow certain changes within permitted facilities without
requiring that the permit be modified.
(3) Sections 70.4fc) - Partial Programs and fd) -
Interim Approval
These sections of the regulations describe the type of
approvals, other than full approval, that EPA may give a
State permit program. These approvals are all subject to a
public comment process and EPA is required to take approval
actions (as appropriate) within 1 year of State program
submittal. There are three related concepts which EPA is
proposing to use for implementing the above position on
partial program submittals: full approval, partial
programs, and a whole program in the State.
Full Approval. The EPA will grant full approval only
if a program meets all the requirements specified in the
Part 70 regulations. For full approval, all program
elements required by Part 70 will have to be met to an
acceptable degree, and stronger elements of a program cannot
compensate for one or more weak areas.
Partial Program. A partial program is one that does
not cover all the sources in a State, because the program is
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limited geographically to a local program, the program does
not cover certain source categories, or both. The EPA in
general intends to grant full approval to partial programs
which are limited in their geographic coverage if they meet
all the requirements of Part 70. However, States must
provide compelling reasons for not taking review
responsibility for all subject source types in order for EPA
to grant partial approval for a source category limited
program. In no event does EPA intend to approve as a
partial program one which would permit the source for some
but not all of the applicable requirements under the Act.
Under section 502(f), for EPA to approve a partial
program, minimum requirements must be met specified in
section 502(f) with regard to Titles I, III, IV, and V. A
partial program at a minimum must apply and ensure
compliance with "this title" (i.e., Title V) "all
requirements established under Title IV applicable to
•affected sources,1" "all requirements established under
section 112 applicable to 'major sources,1 'area sources,1
and 'new sources,'" and "all requirements of Title I
applicable to sources required to have a permit under this
title." The EPA interprets the language in section 502(f)
to mean that a "partial" program is one that is a full
program (i.e., standard application, permit fees, public
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participation, inclusive permit provisions, fixed term,
etc.) for those sources or areas to which the program
applies.
Whole Program. A whole program is a program that meets
the requirements of Part 70 and covers all the Part 70
sources in the entire State. For the State to avoid
sanctions under section 502, the State must have an approved
whole program [502(d)(2) and (3)]. This interpretation of
section 502(f) avoids the confusion created when two
permitting authorities permit the same source for different
Act requirements. This approach also accommodates States
that are unable to implement the Act's requirements for
certain source categories, but are willing to implement the
permit program for most other source categories in the
State.
It is possible for a State under this proposal to
obtain approval for a whole program by submitting several
fully approvable partial programs. The combination of these
programs must permit all the Part 70 sources in the State
consistent with Part 70. In a State relying on a
combination of partial programs, EPA will not approve a
whole program until it has approved all the partial programs
covering all the Part 70 sources in the state.
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The EPA will act on any partial program as it is
submitted, consistent with the twelve month deadline in
section 502(d)(l). The EPA will fully approve a partial
program if it meets Part 70. A State may submit a partial
program, but fail to submit a whole program. If EPA
approves the partial program or several partial programs
within the State, those programs define the permitting
authority for the sources they cover. The State remains
subject to sanctions, however, for failure to submit a whole
program. Ultimately, section 502 provides that EPA will
become the permitting authority for those sources not
covered by any of the partial programs in the State.
Interim Approvals. Section 502(g) allows the
Administrator to grant interim approval by rule to a State
permit program if it "substantially meets" (but not fully)
the requirements of Title V. Interim approvals
automatically expire on a date set by the Administrator not
later than 2 years after such approval and may not be
renewed. At the time of interim approval, the Administrator
shall specify the changes that must be made before the
program can receive full approval. The 1 year for permit
application submittal and 3 years for permit processing do
not start until the program receives full approval.
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The EPA sees interim approval as being a good mechanism
to allow States to gain early permitting experience while
working on the final fully approvable program, to begin
acquiring, through fee collection, the necessary resources
for developing and implementing a full program, and to
expedite the implementation by States of certain Act
requirements (e.g., the granting of MACT extensions for
early reductions) [V.D.]. Interim approvals are
appropriate, however, only where the relevant deficiencies
are not critical over the 2 year (or less) period of time
before a fully approvable program is due. If a program is
not sufficient to receive interim approval, EPA will
disapprove the program. The EPA's interim approval or
disapproval will take place within 1 year of program
submittal as indicated by section 70.4(f). Like full or
partial approval, interim approval triggers the 12-month
requirement for submission of permit aplications and a 3-
year phase-in for processing the applications [IV.D.(2)].
EPA believes that the "substantially meets" test allows
the Agency considerable discretion in judging where a State
program could fail to fully meet Title V yet still be
adequate to produce viable permits. The EPA believes, as a
minimum, the purposes of the permit program could be
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fulfilled if the following minimum criteria for interim
approval are met:
o Adequate Fees. A program must have the capability
to collect adequate fees [presumptively $25/ton
per regulated pollutant per year (1990 basis)] to
fund the State's permit review program and its
capabilities to implement it.
o Applicable Requirements. The State must have the
legal authority to assure that those sources in
the interim program will comply with all
applicable requirements under the Act. This must
include at a minimum some type of monitoring and
reporting provisions, otherwise inadequate
permits issued could be a damaging legacy over the
term of the permits.
o Fixed Term. The program must provide for a fixed
permit term that would not exceed 5 years and an
opportunity for public participation in the
issuance process.
o EPA Obligation. The State's program must allow
EPA an opportunity to review and object to the
issuance of the permit pursuant to the full veto
process. A State might qualify for this by
formally agreeing to "reopen for cause" any State-
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issued permit when EPA would object to it from a
Title V standpoint after the State had issued the
permit pursuant to its existing procedures.
Public comment is solicited on which of those critical
program elements that are required for full approval need
not be met for interim approval. Any additional criteria
beyond the four proposed should represent a deficiency that
is so critical as to disallow the program to run for 2 years
while any deficiencies are being corrected. The EPA also
solicits comment on the proposed position to not grant
interim or full approvals until after the Part 70 rulemaking
is complete.
States may submit a program to EPA for approval at any
time within the 3 years after enactment and EPA will review
it for the applicable requirements and act on its approval.
Section 502(d) requires EPA to approve or disapprove a state
program, in whole or in part, not later than 1 year after
receiving a program after notice and opportunity for public
comment. The EPA may also approve a program to the extent
that the program meets the requirements of the Act. This
requirement is reflected in section 70.4(e) EPA Review of
Permit Program Submittals. which also includes the Title V
requirement that EPA indicate any deficiencies that would
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have to be corrected for the program to obtain full
approval.
The EPA does not intend to judge the approvability of a
State permit program based on the status of the State's SIP
or the existence of a FIP for the State. However, if a
State is unable to impose and enforce limitations contained
in the applicable implementation plan, EPA will not fully
approve the State permit program. The EPA believes that
this approach is consistent with section 502(f). Operating
permits are intended to incorporate the provisions in the
existing applicable SIP (including those in a FIP) at the
time the permit is under review. The EPA will approve
permits with more stringent provisions than the explicit
emissions limitation contained in the SIP, but will not
require the State to correct SIP deficiencies in permits,
except in limited circumstances [IV.B.]. As explained in
more detail in section IV.B., a SIP demonstration must be
periodically updated as needed to reflect reliance on any
tighter conditions of permits to show attainment and
maintenance. As indicated previously, States under one
option can expedite the process where this would be
accomplished by a SIP revision including several permits in
one public notice and through the use of the SIP processing
reforms announced in 54 FR 2214 on January 19, 1989.
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(4) Section 70.4(f) - State Response to EPA Review of
Program
The State must correct the deficiencies in programs EPA
disapproves and submit the corrections to EPA within 180
days of the notice by EPA that the program was disapproved
or within another time period specified by the
Administrator. For interim approvals, the State must submit
corrections to EPA no later than 6 months before the end of
the period for which the approval is granted. These
provisions apply even though the State may submit a program
before the end of the 3 year period provided by Title V.
(5) Section 70.4 fa) - Effective Date
The State program becomes effective on the date of
EPA's full, interim, or partial approval.
(6) Section 70.4fh) - Individual Permit Transition
This section addresses how EPA would implement a permit
program in whole or in part under a new Part 71 in the event
a State fails to submit or adequately implement an
approvable program. The EPA will issue permits under such
circumstances. Once EPA approves the State program and it
is implemented, EPA will cease issuing permits. Any permits
under review or issued under the Part 71 program will
continue under EPA's jurisdiction until they are replaced by
permits issued under the approved State program. However,
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after EPA approves a Part 70 program, States can request
delegation of authority to maintain and enforce previously
issued Part 71 permits before their expiration. If such
delegation is granted by the Administrator, the State can
then collect appropriate fees consistent with section 70.9.
(7) Section 70.4fi) - Program Revisions
A program must be revised if EPA determines sometime
after approval of a State operating permit program that the
program inadequately implements the Part 70 program. The
State will have 180 days, or a longer time period
established by EPA, to revise the program and submit the
revisions to EPA. The Agency might set a longer time where
legislative action is required at the State level to address
problems.
E. Section 70.5 - Permit Application
(1) General
The procedural elements of an approvable permitting
program are essential to its success. The Act provides
important direction with respect to how the permitting
process should be implemented. This section of the
preamble, and the two that follow it, describe EPA's
proposed regulations for addressing these activities.
Generally/ they are described in the order in which they
arise in implementing the program: the permit application
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which is submitted by the source, the drafting of the permit
by the permitting authority, and the procedural aspects for
issuing and managing permits.
Title V sets forth explicit requirements regarding the
application process. Section 502(b)(5) and (6) require that
State programs have standard application forms, procedures
for processing them, and criteria for determining permit
application completeness in a timely fashion. It is
suggested that States provide procedures for transmittal of
permit application data in a manner compatible with the
national data system. Section 503(b) requires compliance
plans to be submitted along with the permit applications. A
complete application must be submitted according to the
transition schedule approved within the plan and in a timely
way for subsequent renewals. "Timely" for submittal of
renewal applications has been defined as 18 months prior to
the permit expiration date unless some other time is
approved by the Administrator. Any complete application
must contain information which identifies the source and its
emissions, the requirements applicable to it, the compliance
status of the source and its intended operating regime, and
a certification verifying the accuracy of the submitted
information. More information may be required later by the
reviewing authority in writing as needed to complete the
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development of the Part 70 permit. The applicant must
: ispond in a reasonable and timely way to maintain a
complete application and the protection that it provides
(see additional discussion in IV.E.(5) and IV.G.(1) below).
Additional information may be required for other
program-specific purposes at a later date (e.g., pursuant to
specific substantive program requirements s ;h as for
certain sources of VOC's and NOx subject to the emissions
statement requirements for nona^tainment areas as Stated in
Part D of Title I). Sources ot hazardous air pollutants
subject to section 112 which are attempting to comply with
alternative emissions limits may also need to submit
additional information. In addition, States may require
information to enable implementation of their additional
program requirements related to the Act.
(2) The Permit Application Form
The EPA recognizes that a great range of factors bear
upon what a good application form is and takes an approach
which ensures the submittal of the wide-ranging information
needed to issue a good permit. On the other hand, EPA
recognizes that the amount of information needed can vary
greatly depending upon type of source or pollutant and State
and local air quality requirements. Moreover, the EPA has a
philosophy of minimizing program disruption, to the extent
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possible. Most States already have application forms; some
of them are very comprehensive. Requiring a new form would
likely be disruptive. For these reasons, EPA will not
prescribe any one, or few, forms that address all
situations.1 Consequently, EPA is proposing a list of
minimum data elements that States must collect with the
permit application forms. As long as these data are
included in State forms, the forms will be found to satisfy
these provisions.
The permit application provisions, contained in
section 70.5, were developed to balance these competing
concerns. The key point is that States have considerable
discretion, within a framework that is rigorous with respect
to the types of information required, to develop application
forms that best meet their particular program needs and
policy choices. Some States may meet these requirements
through relatively slight revisions of their current
application forms.
:The acid rain program, however, will develop application forms which
will likely be required for all affected sources nationally. If so, the
permitting authority will have to adopt these forms in order to have an
approvable program for acid rain. The Agency believes that national
consistency in application requirements is important for the acid rain program
to facilitate equality in the allowance trading market and to ensure that all
affected sources are subject to the same reporting burden. The Agency plans
to encourage the use of electronic reporting, and may develop expert systems
to assist permitting authorities in developing uniform, consistent acid rain
permit requirements. These requirements will be promulgated in a subsequent
rulemaking.
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The following is a brief discussion, organized by
regulatory paragraph, of the types of minimal information
prescribed by section 70.5:
General company information. The applicant must list
appropriate contacts and general background information
(e.g., company name, location, responsible official, or
designated representative).
Plant description. A reasonably detailed description
of the geographical area and the source types and processes
(including size) involved can provide important perspective
to the permitting authority regarding particular local
issues and applicable regulatory requirements
Emissions related data. Emissions data are of critical
importance to permitting, but there are a variety of
decisions to be made with respect to how these data are
addressed in the application. For example, the inclusion of
the list of 189 pollutants, or groups of pollutants, in
section 112 of the Act presents additional issues regarding
che reporting of pollutants "regulated under the Act." The
EPA is inclined not to mandate submittal of emissions
information in the permit application for noncriteria
pollutants for which the source is not subject to
regulation. (Many States may, of course, choose to require
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information about such pollutants, for example, in
implementing their air toxics programs.)
A description of emissions points is relevant to a
variety of requirements (e.g., whether emissions are
fugitive or stack), but EPA believes the regulations will
allow application forms to reasonably limit the detail of
this requirement where such is appropriate. For example,
VOC emissions might be produced at many places in a chemical
process facility, but an application might describe these
adequately without individually describing minor emissions
points such as valves and flanges.
A significant issue involves whether the application
must include the information needed for ambient impact
assessments. This includes stack parameters (e.g., height,
diameter, plume temperature) and building height. Although
EPA does not interpret compliance with the NAAQS to be an
"applicable requirement" of the Act (see section 70.6), EPA
is including such information within the minimum data
elements for applications. As explained further in section
IV.F.(3)(a) below, EPA does not believe that any one permit
can enforce the NAAQS, except perhaps in very limited
circumstances. But the State should be able to assess the
cumulative impact of permitted sources on attainment and
maintenance of the NAAQS (and increment consumption under
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the PSD program). To do this, the State will have to
collect emissions data related to the source's ambient
impact. Section 504(b) authorizes EPA to prescribe
procedures for monitoring pollutants regulated under the
Act. Significantly, this authority is not limited to that
monitoring required for determining compliance with
"applicable requirements." Therefore, EPA is proposing to
require States to collect information relevant to the
ambient impacts of pollutants regulated under the Act, as
authorized in section 504(b). This requirement is
consistent with the goals of the permit program to assist in
implementing the Act's requirements for stationary sources,
such as increment consumption under the PSD program.
All applications under current State operating permit
programs must require sufficient emissions information to
allow a State to write a complete and enforceable permit.
Emissions rates must be supplied for averaging periods
appropriate to program needs and consistent with all
applicable requirements. Depending upon the specific
emissions limitation that applies to a source, emissions
information may be needed on hourly, daily, and annual bases
in order to assure compliance with emissions requirements or
guarantee that emissions will stay below particular
applicability thresholds for other regulatory requirements.
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The form of the required emissions data can also be
influenced by other program needs. For example, all
affected units under the acid rain program must install CEMS
to monitor their S02 and NOX and other emissions [412].
The permit application should clearly describe the
emissions control approach that will be necessary, in
sufficient detail to enable the permitting authority to
assess the reasonableness and effectiveness of the approach
selected. The application should also contain adequate
information regarding operation and maintenance procedures
necessary to sustain compliance as required by the
compliance plan. The EPA recognizes that comprehensive
permit applications for some industrial facilities can be
quite large. For this reason, EPA proposes that States
should be granted more discretion with respect to what
information is needed and when. For example, the Agency
believes that States may want to permit and, therefore,
receive several discrete applications from certain large,
complex sources (e.g., chemical plant) in order to Keep the
information current and the review process focused.
The preceding discussion outlines the approach to
obtaining general information for most regulatory
provisions. There are, however, several specific air
program functions that might require additional specialized
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information. Examples include alternative emissions limits
with respect to MACT, and acid rain allowance provisions.
Even more common program requirements, such as the NSPS and
NESHAP, might require certain additional information. It is
unlikely that a State will wish to develop a single
application form that addresses every possible air
regulatory requirement. The EPA suggests that States follow
the example of numerous current air programs and take a
modular approach to application forms. Under this approach,
all sources would complete the same basic application form,
containing the information on the source and its emissions,
as described in this section. To the extent that
specialized regulatory requirements must be met, additional
forms appropriate to those programs could be prepared and
appended to the basic form.
The approach to application forms being proposed today
recognizes appreciable lexibility for State programs. This
flexibility extends to the format of the information
submitted, as long as the minimum data elements are
colle ad. In certain instances, however, needs for
national consistency for purposes of oversight and good data
management should prompt the use of standard units for
source parameters. Furthermore, use of the Aerometric
Information Retrieval System (AIRS) as a State's data
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management system for the operating permits program may
influence application format. A discussion of this is
included in section (6) , below.
(3) Testing. Monitoring, and Reporting Procedures, and
Compliance Certification
(a) Test Methods
In order to establish initial compliance with each air
pollution control requirement, each permit application must
presumptively specify a test method. This requirement is
contained in section 70.5(b)(4)(ii). A similar requirement
also appears in section 70.5(b)(8)(ii). This latter and
somewhat redundant requirement that the permit application
specify a method for determining initial compliance may be
satisfied by section 70.6(c), and merely appears in the
regulation again to emphasize that there may be different
test methods used for determining continuing compliance
[IV.E.(3)(c)].
The test method for establishing initial compliance
will be the test method in the underlying regulation. If
the underlying regulation is deficient in that it does not
contain a test method, the permit application must suggest a
test method. This is in accordance with section 504 of the
Act which requires that permits assure compliance with the
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applicable regulation. Again, see discussion in
(b) Information Necessary for Implementation and
Enforcement
To implement and enforce air pollution requirements, it
is necessary that all permit applications specify the
underlying monitoring, recordkeeping, and reporting
requirements. This is broadly required by the language in
section 70. 5(b) (4) (ii) , and also by the compliance
certification requirements under section 70.5(b)(8). Note
that section 504 of the CAA and section 70. 6 (a) (3) (ii)
require that reporting of any required monitoring be
submitted at least semiannually.
(c) Test Methods. Monitoring, and Reporting for
Initial and Continuing Compliance
Section 70.5(b) (8) (ii) requires the permit application
to also state the methods to be used not only for initially
determining compliance monitoring, but also for determining
compliance throughout the term of the permit, including a
description of the monitoring, recordkeeping, and reporting
requirements and test methods to be used. The method used
for initially demonstrating compliance must be the test
method or work practice specified in the underlying
regulations (e.g., the SIP, NSPS, NESHAP, and the acid rain
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regulations) as discussed in section IV.E.(3)(a) above. If
the underlying regulation is silent as to the appropriate
test method, the permit, and therefore the permit
application (where possible), must still include, and the
reviewing authority must select, a test method. EPA must
approve new test methods.. Such agreements or facts will
include, at a minimum, any relevant information upon which
the State relied in demonstrating attainment and maintenance
of the NAAQS. In the event that an underlying Federal
regulation is later revised to incorporate a specific test
method or monitoring/reporting procedure, the permit must be
revised to incorporate these requirements upon renewal,
unless more than 3 years remains on the term of the permit,
in which case the permit must be reopened.
To ensure compliance with all the requirements of the
permit throughout its term, the permit, and therefore the
permit application, must also specify an appropriate method
to be used for determining continuing compliance. This
"continuing compliance method" may be OEMS, frequent
compliance calculations, stack tests, or surrogate
monitoring parameters such as incinerator temperature or
scrubber pressure drop. In some cases the continuing
compliance techniques will be the same as the initial
technique. Periodic monitoring of the operation of the
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source or pollution c ntrol device may typically be
appropriate continuing .compliance techniques. In the case
of a work practice standard, the continuing compliance
technique could consist of a record which documents
continual application of that work practice. In many cases,
the monitoring requirements in the underlying regulation
will suffice for assessing continuing compliance. If the
regulation is silent regarding continuing monitoring
techniques, the reviewing authority will need to specify an
approach, taking into account cost, availability,
reliability, and accuracy of the technique, including, of
course, the averaging time of the underlying standard.
Also, as Stated in section 504(b), alternatives to OEMS can
be required if CEMS are not required by the applicable
regulation and reliable and timely alternatives are not
available. Where the underlying standard is unclear, an
additional consideration would be consistency of the
averaging tim« of the technique with the applicable ambient
air quality standard.
Where surrogate monitoring parameters are used for
determinin continuing compliance, the permit application
should provide an acceptable operating range of monitoring
values based on values achievable during a performance test
(i.e., during the initial compliance test) or based on best
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engineering judgment. Operation of the facility outside of
these specified monitoring values would be a violation of
the permit and any good operating practice requirements, if
applicable, such as contained in 40 CFR 60.11(d) for NSPS
affected sources.
Where GEMS or emission calculations are chosen for the
continuing compliance method, the resulting data could be
used directly to enforce the emission limit. Therefore,
recorded CEMS emissions, or VOC emission calculations, for
example, in excess of the emission limit would constitute a
violation of the emission limit. Of course, CEMS are not
appropriate for use with respect to some source categories.
For other source categories, CEMS are appropriate or are
mandated by the Act, e.g., for acid rain affected sources.
For those cases, States should explore the possibility of
requiring compliance calculations. Further, until EPA
specifies enhanced monitoring techniques, the choice as to
the appropriate continuing compliance technique remains the
primary responsibility of the permit reviewing authority.
In the case of a work practice, the continuing compliance
technique could consist of a record which documents
continual application of that work practice.
After a source has demonstrated initial compliance in
accordance with the underlying regulations, either the
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initial or the continuing compliance technique may be used
in the periodic (at least annual) compliance certifications.
It is, however, necessary that a continuing compliance
technique be specified and used to establish whether
compliance throughout the reporting period was continuous or
intermittent, in accordance with the statutory requirements
in Title V and VII for compliance certification
(d) Compliance Certificat. ->ns
As required by section 70. 5 (b) (8) (iii) , the permit
application must contain a schedule for submission of
compliance certifications. The Act requires that these
certifications be submitted at least annually. States
should require certifications more frequently for sources or
source categories with a recent history of compliance
problems. The required frequency of certifications should
also consider the frequency of any other reporting
requirements, such as excess emission reports and the Title
V requirements in section 504 (a) for at least semiannual
compliance reporting. Under section 503(b)(l) all sources
must monitor and report every 6 months. The state should
consider a combined report as opposed to submission of
separate reports.
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Section 70.5(b)(10) provides that the certification, as
well as all other documents required under Part 70, must
state that "to the best of the signer's knowledge,
information and belief formed after reasonable inquiry, the
statements and information in the compliance certification
are true and accurate." This language is similar to that in
Rule 11 of the Federal Rules of Civil Procedure, upon which
it was modeled. The provision makes clear that the signer
must make a reasonable (under the circumstances) inquiry
before attesting to the truth and accuracy of the
information and statements.
(4) Compliance Plans
In accordance with section 503(b), each permit
application must be accompanied by a compliance plan which
describes how the source will comply with all the applicable
requirements of the Act. Submission of these compliance
plans is also required for permit renewals and permit
modifications, in accordance with section 70.7.
Compliance plans must describe the techniques used to
achieve initial compliance, as well as the techniques which
will be used to achieve and maintain continuing compliance.
All sources, regardless of their initial and current
compliance status, must submit a compliance plan
[IV.E.(4)(a)(i)]. Sources which are not fully operable or
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in compliance at the time of application must provide
further detail on how they will actually achieve initial
and/or continuing compliance [IV.E.(4)(a)(ii)].
Sources subject to the acid rain program are
additionally required to submit compliance plans which
detail how they intend to meet their Title IV requirements.
Title IV regulations are likely to supersede the Part 70
compliance plan requirements in certain respects.
Specifically, they will modify and limit what sources may be
required to include in the acid rain emissions limitations
portion of their compliance plans. Title IV also provides
that nothing in Title IV regarding compliance plans or in
Title V shall be construed as affecting allowances [408(b)].
However, all sources, including those subject to the acid
rain program, must at a minimum meet the compliance plan
requirements listed below.
As required in section 70.5(b)(7), a compliance plan
consists of the following elements:
(a) A Description of How All Applicable Requirements
Under the Act Will Ba Achieved And Maintained
This requirement should not be confused with the
separate provision of section 70.5(b)(8) (regarding
compliance certification, testing, and monitoring) that the
permit application specify the actual test methods and
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monitoring to be used for documenting initial and continuing
compliance. Rather, the compliance plan specifies the means
that will be used to maintain or achieve initial and
continuing compliance. It should be noted that adoption of
compliance plans and the ensuing schedules of compliance do
not protect a source from enforcement action or penalty
assessment for existing or previous violations of the
applicable requirements.
(i) Compliance Plans For Continuing Compliance
All sources must submit a plan which describes how the
source will achieve and maintain continuing compliance. For
sources in compliance with all applicable provisions of the
Act, the compliance plan should describe how the source
plans to: (1) operate and maintain pollution control
equipment, (2) ensure continual and consistent application
of work practice standards and operating restrictions, (3)
keep source personnel informed of the proper initial
operation and upkeep of pollution control equipment or work
practices, (4) operate the source in a way that minimizes
emissions, and (5) quality control the data collected.
A description of the operation and maintenance of
pollution control equipment should include identification of
equipment and parameters to be checked as part of periodic
maintenance and during scheduled outages, as well as
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identification of proper operating conditions, startup, and
shutdown procedures. Proper operation of the source and its
pollution control equipment necessitates a description of
corrective actions to be taken when an exceedance is
identified and of how emissions will be minimized during
equipmc t malfunction.
To keep source personnel informed on the proper upkeep
of pollution control equipment and work practices, it is
presumed necessary to train personnel on such topics as
system design, component functions, key parameters to
monitor, good operating practices, and shutdown procedures,
as well as safety considerations. It is essential that
operating personnel be able to identify an emissions
violation and how to correct it.
Operation of the source in a way that minimizes
emissions should include not only the descripti<~- of
corrective actions to be taken upon identification of an
exceedance, but also a description of good operating
practices. A well operated emissions unit will often emit
fewer pollutants than a poorly operated plant; these type of
operating parameters, where applicable, should be a part of
the operations and maintenance plan. [For example, good
combustion practices for a boiler would include providing a
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sufficient oxygen to fuel ratio, thereby ensuring proper
combustion and lower emissions.]
(ii) Compliance Plans For Initial Compliance
Sources which are not yet operational with respect to
the subject of the permit application must, in addition to
the operations and maintenance plan, submit a plan which
describes how the source will achieve initial compliance
with the standard. This includes a description of pollution
control equipment and monitors to be used, the installation
procedures, and may include a description of how work
practice procedures will be adopted, and how compliance with
any operating restrictions will be assured. Key milestones
for achieving compliance, such as installation of control
equipment, must be included in the schedule of compliance.
Sources which are out of compliance at the time of
application would need to describe how they will obtain
compliance with their underlying Act requirements. The plan
must specify the requirement with which the source is not in
compliance (as already required by section 70.5(b)(7)(iii),
described in section IV(E)(4)(c) below), the equipment
and/or changes in operation necessary to come into
compliance, and include a schedule of compliance
[IV(E)(4)(d) below]. For sources which are out of
compliance, or have a history of noncompliance, EPA
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recommends that the permitting authority require
proportionately more detail in the plans. Note that neither
the plan nor the permit will alter the source's legal
liability for any violation of the SIP or Act.
(b) A Description of How the Source Will Maintain
Continuing Compliance With Those Requirements
All permit applications must describe how the source
will monitor continuing compliance. Section 70.5(b) (8) (ii)
regarding permit application requirements for compliance
certification specifies that each permit application specify
the monitoring method to be used. In contrast, the
compliance plan, as required by section 70.5(b) (7) (iv) ,
simply sets forth the schedule by which the monitors will be
installed, maintained, quality assured, and by which source
personnel will be instructed/trained on the proper operation
and maintenance of monitors.
(c) A Deacription of the Compliance Status of the
Source With Each of Those Requirements Tsect ion
70.5fbl
A responsible corporate official must certify as part
of the compliance plan, the compliance status of the source
for each applicable requirement. "ApplicaMe requirements"
include emission standards, prohibitions, work practices,
and operating restrictions. This certification is
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necessary to identify the level of detail needed in the
compliance plan, to provide a record for compliance
personnel, and to facilitate future compliance
determinations. It may also be used as a means of
documenting all acceptable operating ranges under which the
source demonstrates compliance, to be used in establishing a
continuing compliance technique. The EPA proposes that the
responsible corporate official should be as defined in the
NPDES program [70.2(bb)]. For affected sources under the
acid rain program, the responsible corporate official will
be the designated representative. The Agency will
promulgate regulations in Part 71A specifying the
requirements for certification as a designated
representative [40 CFR 122.22],
(d) A Schedule of Compliance
Section 70.5(b)(7)(iv) defines "schedule of compliance"
as a schedule of remedial measures including an enforceable
sequence of actions with milestones, leading to and
maintaining compliance with all applicable requirements of
the Act for sources which are not in compliance. This
schedule must specify a date by which the source must
achieve compliance, and interim milestones for all remedial
measures necessary to meet that compliance date. Examples
of interim milestones for cases where new equipment is
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necessary to come into compliance include; the award date
for the contract to obtain the control device, the date of
initiation of on-site construction and/or installation of
the device, the date of completion, and the date of
testing/calibration. Similar deadlines could be established
for installation of monitors. For a work practice standard,
interim milestones could pertain to training of personnel.
For sources in compliance, section 70.5(a)(6)(iv)
requires the schedule of compliance to include an
enforceable sequence of actions with deadlines designed to
maintain compliance. This should include, but is not
limited to, a schedule for maintaining pollution control
equipment, and all other provisions of the compliance plan
which are necessary to assure compliance. All schedules of
compliance must be contained in the permit.
(e) A Schedule for Submission of Progress Reports. To
Be Submitted No Less Frequently Than Every
6 Months
Within section 70.5(b)(7)(v) and in accordance with
section 503(b), each permittee is required to submit
progress reports to the permitting authority no less
frequently than every six months. These reports must
describe the source's progress in meeting the requirements
of the compliance plan, and the ensuing schedule of
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compliance. (The required content of the progress report is
specified in section 70.6(a)(3)(vii).) The compliance plan
must set forth the schedule for submission of these reports.
(5) What Is a Complete Permit Application?
A determination by the permitting authority that an
application is complete is important to the source.
Submittal of a timely and complete application protects the
source (except to the extent construction or modification is
involved) from enforcement for failure to have an operating
permit [503(d)], and begins any prescribed periods for
agency action on issuing a permit, including automatic
denial in some States. Furthermore, a complete acid rain
permit application and compliance plan is binding on the
source and is enforceable until the permit has been issued.
The importance of this determination, combined with the fact
that it can be difficult to make, has traditionally made the
completeness determination the subject of dispute in the
issuance of permits. The Act, probably for these reasons,
requires that permitting programs contain "criteria for
determining in a timely fashion the completeness of
applications" [502(b].
The basis for determining the completeness of an
application should be the information contained in the
permit application itself. An approved State standard
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application form or forms should provide for the submittal
of all information necessary to process the application and
incorporate the applicable regulatory requirements into a
permit. However, this determination is also a function of
the type of source, the applicable requirements, and SIP or
attainment status. Thus, depending on the circumstances,
the permitting authority may need more information than that
specified on the application form.
*
The permitting authority should also assure that
certain supplemental information is included with the
application before ruling that it is complete. For example,
the application should be accompanied by the compliance plan
i
and a certification of whether the source is in compliance.
Pursuant to section 503(c), the application and compliance
plan must be signed by a responsible official (the
designated representative for acid rain affected sources),
who shall certify the truth, accuracy, and completeness of
the information submitted. In addition, an application
should include the calculations upon which the application
data are based in order to facilitate review of the
application.
Various procedural disputes could arise from these
determinations. For example, while permit review is under
way it sometimes becomes apparent that more information is
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needed. The State must be able to request it, without
being bound by its initial determination. The EPA is
proposing that the determination of completeness and the
associated protection provided to the source to operate
without a permit would remain in effect during this process,
assuming an adequate and reasonably timely response by the
source. Similarly, EPA is proposing that if a State has
submitted a timely application which it in good faith
believes to be complete, but which is later determined by
the permitting authority to be incomplete, the protection
would not be lost if the source cured the defect within the
expeditious time period specified by the permitting
authority.
The regulation requires notification to the applicant
of the completeness determination. It further states that
where this notification is not provided within 30 days of
receipt of the application by the permitting authority, the
application shall be deemed complete. This date also marks
the time from which the permitting authority has a maximum
of 18 months to process the permit. Failure by the source
to respond in an adequate and timely manner to written
requests for additional required information would subject
the source to penalties for operating without a
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Title V permit [502(a), 503(d), 40 CFR 70.5(c)].
(6) Data Management
Considerable information will be necessary in order to
implement the permitting requirements of the Act. For this
reason, sound data management is important. The EPA is
considering changes to the Air Facility Subsystem of its
AIF" data management system to meet State and national
permitting needs. If such a system were developed, States
will be charged with ensuring that AIRS contains the minimum
permitting data elements identified by EPA. Separate data
bases will be developed for acid rain to facilitate the
tracking of emissions and of allowances and to provide
information to the market on compliance choices.
Data management concerns will influence what
information States collect and the format in which it s
collected. The effect on types of information required in
standard application forms should be relatively slight. The
information included in the current AIRS system is of the
type normally required by a State to write a permit for a
source. The influence on format is likely to be more
significant. For this system to work efficiently, the data
must be presented in units and a format that are readily
incorporated into the data system. The EPA is investigating
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data processing enhancements that would expedite the
permitting process generally. Examples include electronic
permit application and data submissions.
The EPA solicits comments on the data management
aspects of the permit program, particularly the potential
use of AIRS for this purpose, and any enhancements the
system might need.
F. Section 70.6 - Permit Content
Permits issued by the permitting authority must include
provisions that assure that the source will meet all of its
obligations under the Act. Permits should include,
therefore, emission limitations and standards, a schedule of
compliance, requirements for conducting monitoring and
analyses and providing emissions statements, provisions for
inspection, entry, monitoring and reporting, and a process
for public access to this data. The permit must also
provide for periodic progress reports with respect to the
compliance plan, as well as periodic reports concerning
compliance with the permit requirements. The reports must
be signed by a responsible corporate official or designated
representative for acid rain, who must identify the
requirements applicable to the source, verify the truth,
accuracy, and completeness of any submitted information, and
certify whether the source has complied with them.
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(1) Core Permit Elements
A Part 70 permit will typically contain certain core
elements: an introductory section providing the source's
name, address, key contacts, and various standardized
conditions; a description of the source and its processes
and emissions; a statement.of the applicable regulatory
requirements, including monitoring, recordkeeping, and
reporting, and provisions relevant to their enforcement.
The requirements with respect to permit content, located in
several parts of Title V, are consolidated in section 70.6.
This preamble addresses them under the following three topic
areas.
(a) Emission Limitations and Standards
Section 504(a) states that each permit "shall include
enforceable emissions limitations and standards" and various
other measures "as are necessary to assure compliance with
the applicable requirements of this Act, including the
requirements of the applicable implementation plan." The
origins of each of these requirements (e.g., NSPS, PSD)
should be included with them. This is important in order to
confirm the basis of each of the regulatory requirements.
In addition, this will help to minimize confusion regarding
the origin of any limitation and insure that EPA, the
source, and the general public have a common understanding
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of the regulatory requirements upon which the permit is
based. For example, the changing of a restriction on hours
of operation might subject the source to the "source
obligation" provisions of the PSD program, but this might
not be ascertainable from the operating permit if the origin
of the limitation had not been included.
The regulations also require the permit to identify any
difference in form between the emission standard in the
permit and the regulation which is the basis for the
standard. This will allow EPA and citizens groups to
readily identify these types of permits for heightened
review. This requirement should not be too burdensome for
permitting authorities because these types of permits should
be relatively rare.
The EPA wishes to stress the importance of good permit
writing to the enforceability of a permit. If permit
provisions are not clearly written and carefully specified,
compliance may well be thwarted, regardless of how well the
direct compliance measures already discussed are addressed.
Failure to use consistent or appropriate units in emissions
limitations or failure to adequately describe the facility
or unit to which an emission limitation applies, such that
application of the emissions limitation is unclear, can thus
be grounds for an EPA objection to the permit. Useful
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guidance as to what makes a permit enforceable is contained
in EPA's September 23, 1987, document entitled "Review of
State Implementation Plans and Revisions for Enforceability
and Legal Sufficiency." That guidance provides a checklist
of key areas to consider in assuring enforceability,
including applicability, compliance date, specificity of
conduct, any incorporation by reference, record keeping
requirements, and exemptions and exceptions.
Other emissions-related issues include provisions to
address appropriate start-up and shut-down, and scheduled
maintenance. In addition, a permit might also contain
provisions regarding upset conditions.
The determination of what are the "applicable
requirements" that must be addressed by the permit is an
important matter that is addressed separately in section (3)
below.
(b) Monitoring and Reporting Requirements
The provisions of section 504(a)-(c) underscore the
strong emphasis which Title V places on maintaining
compliance with all terms of operating permits. Specific
elements include a schedule of compliance, a requirement
that the permittee submit the results of any required
monitoring no less often than every six months, and "such
other measures as are necessary to assure compliance" with
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all applicable requirements under the Act [504(a)]. In
addition, each permit shall set forth inspection, entry,
monitoring, compliance certification, and reporting
requirements to assure compliance with the permit terms and
conditions [504(c)].
Certifications of compliance are required by both
Title V and Title VII (Enforcement). Section 504 specifies
that each permit must contain compliance certification
requirements, and section 703 of Title VII further requires
submission of compliance certifications for all major
stationary sources and other sources as specified by the
Administrator. The enforcement agency will evaluate these
certifications to determine if further inspection or
enforcement activity is warranted. Certifications, as
discussed in more detail below, must include periods of
noncompliance, reasons for the noncompliance, how
noncompliance was corrected, and how it will be prevented in
the future. Certifications are required by the statute to
be submitted at least annually, and are required to identify
whether compliance has been continuous or intermittent.
Certifications and all reports must be signed by a
responsible official who shall certify its truth,
completeness, and accuracy.
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The operating permit itself must require periodic
certifications of compliance. The minimum content of these
certifications is specified in section 70.6(c)(6)(iii).
These factors are, for the most part, self-explanatory.
However, it should be emphasized that the compliance
certification must document not only the current compliance
status at the time of preparation of the report, but also
whether compliance over the reporting period was continuous
or intermittent, i.e., whether there were peric' of
noncompliance. These compliance certifications place the
responsibility to monitor continuing compliance and to
identify all periods of noncompliance on the source. It is
important that these reports be specific as to the dates of
noncompliance, the applicable requirement to which the
certi ication applies, the method used to establish
compliance or noncompliance, and whether that method is the
initial or continuing compliance technique. The source must
indicate the probable cause of any noncompliance, and what
preventative measures were taken to resolve the problem.
Also, the certified report should identify periods of
missing data and the causa for the missing data.
A compliance certification must be submitted for each
emission standard, prohibition, work practice, or operating
restriction. However, it is not necessary to submit
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separate reports. One report certifying all the contents
therein would suffice. As indicated by section 70.6(c)(6),
the permit must specify the frequency of the required
submittals of the certifications and the method for
assessing continuing compliance, and require that all such
reports be certified by a responsible official.
The requirements for initial and any continuing testing
(as appropriate) of compliance must be contained in the
permit itself. Section 70.6(c)(6)(ii) further requires
inclusion of a continuing compliance technique, in addition
to the initial testing method required by section
70.6(c)(l). In order to make the applicable standards
enforceable, all permits must specify both an initial
compliance testing method, and a method which enables
assessment of continual application of the standards. The
source must then keep records of this required testing and
monitoring and periodically report to the permitting
authority. Affected sources under the acid rain program
will be required to comply with nationally promulgated
monitoring and reporting requirements. Performance
certifications, quality assurance reports, monitoring,
recordkeeping requirements, and electronic reporting options
will all be established nationally. These requirements will
be promulgated in a subsequent rulemaking at Parts 71A-74,
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and States must have the authority to incorporate the
requirements by reference into their approved programs.
The term "monitoring" refers to many different types of
data collection. It could include, but is not limited to,
periodic stack sampling, continuous emission or opacity
monitoring, ambient air monitoring, or measurements of
various parameters of process or control devices (e.g.,
temperature, pressure drops, voltages). Monitoring,
recordkeeping, and reporting provisions are also essential
to make standards enforceable. Hence, section 70.6(a)(3)
requires these provisions, including the section 503(b)(2)
requirement for prompt reporting of violations.
Section 504(a) and 70.6(a)(3) require permittees to
submit the results of all required monitoring at least every
6 months. These reports must be certified for completeness
and accuracy by a responsible official. The data must be
submitted in a format consistent with the underlying
standard. For example, if the SIP limitation for a coating
facility is 2.9 pounds of VOC per gallon of coating, that is
how the information should be presented in the monitoring
report. Enforcement personnel should not have to do any
calculations or conversions of raw monitoring data to ~he
applicable standard to be able to determine compliance.
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(c) Other Permit Provisions
The permit should also contain various other
provisions, not directly related to emissions requirements
or their enforcement, that are important to permit
management. For example, permits should specify their
expiration dates and procedures for renewal. The permitting
authority would also be likely to address provisions for
phasing in additional requirements that are expected to
become applicable at a future date; these include such
matters as the transition from the Federal Phase I
permitting to the State Phase II permitting of sources
subject to acid rain requirements. Fee amounts, and
provisions for their payment, also must be typically
included.
(2) Program Specific Elements
(a) Generally
The preceding discussion of core permit elements
described the range of items to be addressed by an operating
permit. In many cases, these will fully satisfy the
permitting provisions. It is important to keep in mind,
though, that Title V permits can be used to support a wide
range of air quality management functions. For example,
emissions inventory updates, especially for VOC's, will be
an important component for various criteria pollutant
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attainment plans. The permitting program and the
nonattainment plan for these areas may be developed in
coordination with one another, with operating permits
containing additional requirements for submittal of
information to be used in inventory development. The EPA
solicits comment on whether, and how, such coordination
should occur.
There are procedures for the development of alternative
emissions limits under the NESHAP program [V.E.].
Additional permitting information is necessary for the early
implementation of those standards. Permit conditions must
also be structured so as to provide for orderly transition
to Act requirements that are not yet established but
effective. Examples of this include MACT requirements.
(b) Acid rain
'otwithstanding section 506(a), no permit shall be
issued that is inconsistent with the requirements of the
acid rain program, or of Parts 71A, 72, 73, and 74. State
legislative or regulatory authority should contain this
limitation. The Agency plans to rely on its permit
oversight authority to ensure national consistency with the
acid rain program in order to allow approval of State permit
programs which contain more general provisions, and to
facilitate the allowance trading program.
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Title IV requires that certain provisions be included
in all acid rain permits issued by EPA or the States.
Specifically, all permits issued to affected sources under
the acid rain program shall prohibit:
(1) annual emissions by affected units of the applicable
emissions limitation for nitrogen oxides, (2) annual
emissions of sulfur dioxide by affected units in excess of
the number of allowances to emit sulfur dioxide held by the
owner or operator, or the designated representative, for use
in that year by each such affected unit, (3) any person from
holding, using, or transferring any acid rain allowance,
except in accordance with regulations at Part 73, and (4)
the use of any allowance prior to the calendar year for
which it was allocated, and (5) contravention of any other
provision of Title IV, Parts 71A thorough 74, or of the
permit [403(f), (g)].
(3) Applicable Requirements of the Act and the SIP
Title V requires that operating permits assure
compliance with each applicable standard, regulation, or
requirement under the Act, including the applicable
implementation plan [502(b)(5)(A), 504(3), and 505(b)(l)].
Orderly and efficient operation of the permit program will
require that the permitting authority and EPA clearly
understand and agree on what enforceable requirements under
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the Act apply to a particular source. The EPA expects to
oversee the inc' sion of the Act's applicable requirements
in the operating permits. Where there is a question with
the permitting authority over what requirements of the Act
or SIP apply to a source, EPA will exercise its authority
under sectio- 505(b)(l) to object to permits that fail to
assure compliance with the applicable standards as clarified
in the available record. The EPA proposes the following
guidance for defining applicable requirements:
(a) NAAQS
EPA interprets "applicable requirements" of the Act and
the SIP to mean limitations, standards, and/or requirements
directly applicable to sources. Typically, EPA will enforce
the requirement that the States implement the NAAQS through
SIP's. For example, Title I requires that certain ozone
nonattainment areas demonscrate a three percent reduction in
VOC emissions each year. That is a planning obligation on
the State, which the tate may implement in any number of
ways, including a three percent reduction from every VOC
emitting source in the State, or even stringently
controlling certain source cate aries entirely while
allowing others to operate uncontrolled, if that were the
State's preference Under Title V, EPA is not plann
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whether the State is meeting the 3 percent reduction
requirement, although EPA in its SIP review may look at the
collection of permits the State has issued under Title V to
determine if the State has met its three percent reduction
obligation.
In some cases involving other pollutants, however, a
particular source may be situated such that the assurance
that the SIP will attain or maintain the NAAQS will depend
entirely on the limits placed on that source. This may be
especially likely in the case of sources of particulate
matter, lead, or sulfur dioxide. Even in such cases, EPA
solicits comments on the position that EPA will not require
the permitting authority to issue permits that assure
attainment and maintenance of the NAAQS. The permit would
not be required to assure protection of the NAAQS even in
those cases where EPA has issued a notice of SIP deficiency.
EPA will, therefore, not object to a permit (which
otherwise complies with the applicable SIP) on the grounds
that the permit does not assure attainment of the NAAQS.
Where more than one source substantially contributes to the
NAAQS violation, EPA will not use individual permit actions
to impose limits on sources beyond those required in a SIP.
It is the State's responsibility in the first instance to
decide what limits the SIP should impose on the various
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sources. While the State may choose to remedy the
inadequate SIP using a series of individual permits, EPA's
review of individual permits will not be the appropriate
forum for reviewing the adequacy of such planning decisions.
The EPA will, however, review these planning decisions when
the permitting authority, as required by the Act, updates
the attainment demonstration and/or incorporates these
individual permit limits into the SIP. The EPA emphasizes
that, even if the above case is grounds for potential
objection, the relationship between the single source's
emissions and the NAAQS violation must be very direct and
clear.
(b) SIP Ambiouitv
It is possible that some requirements in SIPs will be
vague as to a significant provision (e.g., averaging time,
monitoring and/or reporting requirements) such that
considerable time may be required during the permitting
process to make the operating permit fully enforceable. In
such cases, the SIP will be ambiguous when applied to a
particular source, and the State will be required to make
certain judgments in defining the enforceable permit
conditions. Where the State's interpretation of a
requirement is inconsistent with the State's demonstration
of attainment and maintenance of the NAAQS and fundamentally
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undermines the level of emissions reduction EPA anticipated
the rule would achieve, EPA will object to the permit
implementing the ambiguous SIP. In making this decision,
EPA will look to the available record, including the
assumptions the State made in proposing the SIP to EPA.
The narrative description accompanying the SIP is not
directly enforceable on sources, but it is reasonable for
EPA to look to the assumptions made when the State proposed
the SIP and EPA approved it in deciding how an ambiguous SIP
should be applied to a particular source. For example, if
the State grants the source an extended averaging time for
compliance demonstrations inconsistent with the underlying
SIP narrative, EPA will object to that permit, unless the
SIP accommodates such averaging times. These State
interpretations of ambiguous SIP regulations may need to be
incorporated into the SIP if they critically impact the
applicable NAAQS determination. As discussed more
extensively in section V.B, EPA believes that this might be
accomplished periodically through the SIP revision process.
Failure on the part of the State to revise the SIP may
result in the issuance of a notice of SIP deficiency by EPA
to the State.
There are situations in which a SIP, standing alone, is
inadequate to issue an approvable, i.e., enforceable,
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permit. For example, as discussed earlier in this section,
the SIP may contain gaps regarding such necessary
implementation issues as test methods or averaging times.
The operating permit process can be used, at least
temporarily, to fill these gaps. Such use of the operating
permit program does not, however, relieve the State of any
obligation it might have to revise the applicable SIP. The
EPA will, however, utilize to the maximum extent possible
the SIP reforms announced in 54 FR 2214, January 19, 1989.
In addition, to promote and expedite certain permit
decisions on the part of State and local agency review
authorities which reasonably address SIP ambiguity, EPA
believes that the concept of a model permit appears
promising. Under this concept, a general framework of
conditions for various source types would be developed by
EPA. The permit conditions that would be encouraged for
adoption would incorporate all the relevant standards and
requirements in enforceable terms, address any gaps in the
applicable SIP limit(s), and would be consistent with all
the assumptions concerning the underlying control strategy
demonstration. This "model" would then create a presumptive
requirement that the affected parties could adjust, as
necessary, during the permit process. While a model permit
would not define the only acceptable means to avoid an EPA
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veto, it would serve to focus and streamline EPA permit
review on those aspects which differ from the model
conditions. The EPA solicits comment on this concept and on
how best to develop and implement it.
(c) SIP's and FIP's
In certain situations, EPA may be required to impose
FIP's under section 110(c) of the Act. Where a FIP applies
to an area, operating permits for sources in that area must
assure compliance with the FIP measures. Failure of a
permitting authority to implement the FIP requirements in
its permits will be cause for EPA to find a failure to
administer the permitting program under section 502(i). The
EPA will have the flexibility to implement the permit
program for the FlP-impacted sources and collect the
necessary fees to fund such implementation.
There are also important program concerns regarding the
implications to permit program approval and implementation
of an inadequate SIP. These issues are discussed in detail
in section V.B.
(d) New Source Review
The requirement under Title V that operating permit
programs assure compliance with all applicable requirements
under the Act includes the requirements imposed in any NSR
permit. Requirements established during the preconstruction
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review process are also the applicable requirements to the
source for purposes of implementing Title V. If the source
constructs and meets the limits established in its NSR
permit, the Title V operating permit would incorporate these
limits without further review. The intent of Title V is not
to second-guess the results of any State NSR program.
Operating permits may also provide convenient vehicles
for the States to help implement their NSR programs. Where
a source may "net out" of NSR by restricting operations at
the facility, it may seek an operating permit revision to
make that restriction federally enforceable. If a new
source needs offsets and has found a facility able to
provide them, the donor facility's permit may be modified to
enforce the offsets.
(e) Tighter or Equivalent Requirements
The determination of whether a permit provision relaxes
an applicable requirement is an issue since section 505(b)
subjects permits that are not in compliance with the
applicable requirements of the Act, including those of the
SIP, to f a EPA veto. To minimize concerns about potential
relaxations of SIP requirements, permitting authorities are
required to express new limitations in terms consistent with
those in the SIP (e.g., averaging times) to facilitate
comparison with the existing SIP requirement. Where there
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are opportunities within the SIP for expressing the permit
limitation in terms other than those used in the SIP, the
burden of demonstrating equal or greater stringency rests
with the State. This demonstration must accompany the draft
proposed, proposed, and final versions of any permit.
(4) Relationship Between the Permit and the
Application
The permit application must provide the information
necessary for the permitting authority to process the
permit. Various parts of the application (e.g., emission
limits, the compliance plan and the ensuing schedules of
compliance, monitoring methods) are generally incorporated
directly into the permit. Much of the material in the
application need not actually be incorporated into the
permit, even though it was needed for preparing the permit.
For example, the application may provide extensive general
information about the plant and its site that, although
useful to the permitting authority in acting on the
application, are not enforceable requirements which should
be included in the permit. Existing state practice
typically considers most, if not all, of the permit
application to be enforceable. In many States, a permit
refers to the entire application, and sometimes effectively
incorporates it by reference. This makes all the source's
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assertions in the application, that are critical to the
design and implementation of the per- t, directly
enforceable through the permit. The EPA anticipates that
this practice will continue with Title V permits. Where
this is the case, however, any incorporated provisions of
the application must be readily available to the public.
Such provisions would not qualify for protection as
confidential information. The Agency does not plan to use
cross-referencing in the acid rain portion of the facility's
permit. All acid rain requirements are to be explicitly
stated in the permit. This requirement will be specified in
40 CFR Part 71A, and will be included in a subsequent
rulemaking. Where the permit and the application would
address a given topic or requirement, the terns of the
permit would be considered to be the effective limitation.
The EPA is considering certain implementation
implications of this approach. It should be noted that
current permitting practice reflects a shift toward permits
that contain more of the detail traditionally left to
applications. It is likely that Title V permitting, with
its emphasis on completeness, enforceability, and monitoring
and reporting, will continue this shift toward greater
detail in permits. Public comment is solicited as to what
type of information contained in the application should also
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be incorporated into the permit, or otherwise considered
federally enforceable. In addition, EPA solicits comment on
how applications (as well as permits) can merely cross
reference applicable regulations and other requirements
instead of repeating them in these documents. For at least
the initial phase-in of the program, the Agency proposes to
allow this concept, provided the cross reference is clear as
to the applicable requirements and their effective date and
is limited to reference materials (i.e., permits must
contain the applicable limitations. All emission
limitations and all acid rain requirements, however, must be
explicitly stated in the permit.
Regardless of the balance struck between the
information contained in the application and how much of it
is incorporated into the permit, certainly some portion of
the application will continue to be merely referenced by the
permit but enforceable through it. Because this
determination can be difficult, and because it is important
to the Title V permitting process that a source's air
pollution control obligations be clearly defined, the
permitting authority should specifically address in the
permit the continuing role of the assertions made in the
application.
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(5) Operational Flexibility
(a) General
A Part operating permit must contain emissions
limits and standards, compliance schedules or plans for each
regulated emissions unit, monitoring and analysis
requirements, reporting requirements, and several source-
specific items of information. The source owner or operator
may desire to change any or all contents of a Part 70 permit
during the life of the permit. The Congress, while
stressing the need for a Title V permit program to bolster
air quality management, was concerned that typical day-to-
day operations of a source not routinely trigger the need
for a permit revision. Section 502(b)(10) requires tha.
Title V programs "allow changes within a permitted facility
... without requiring a permit revision, if the changes are
not modifications under any provision of Title I 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),11 provided that there is
written notification at least 7 days in advance, unless the
permitting authority provides in its regulations a shorter
time frame for emergencies.
Section 502(b)(6) provides that an approvable operating
permit program must be able to accomplish expeditious
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revisions in existing permits to reflect acceptable changes
in source operations. . The EPA believes that this section
essentially defers to the Agency to define a reasonable
process for accomplishing changes to permits prior to their
renewal which would not be covered by section 502(b)(10).
The challenge to EPA then becomes how to develop a permit
revision process that is sensitive to the need for sources
to make certain unanticipated operational changes in a
relatively fast timeframe, while ensuring that truly
significant changes in terms of their potential
environmental impact face appropriate safeguards before they
can occur.
The following discussions first describe how the Agency
interprets section 502(b)(10), what changes qualify as Title
I modifications so as to be excluded by section 502(b)(10),
and how operational flexibility should be designed into Part
70 permits. The subsequent discussions outline how three
classes of permit revisions are proposed to vary in terms of
process and level of review. In general, EPA is proposing
that the amount of review faced by a permit revision before
it can occur will be directly proportional to the potential
environmental significance of the contemplated change.
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(b) Nature of Section 502fbWl(n Provision
EPA has approached "operation flexibility" in two ways.
One, that implements the letter of the Act, and a second,
that carries out the spirit of the provision. The letter of
the Act is, in EPA's view, simply a restatement of the
common-sense proposition that a permit does not prohibit any
activity it does not specifically limit. Thus, if a permit
includes emission limits only for VOCs and chloroform at
Unit A, and for VOCs and formaldehyde at Unit B, it does not
limit process changes that might result in emissions of
chloroform from unit B or formaldehyde from Unit A.
Elsewhere in this notice EPA details notification or
preconstruction review (i.e., "modification" requirement of
Title I, such as those in PSD or new source review programs,
or in section 112(g)) requirements that might be triggered
by such changes. Finally, the permit shield would not apply
to these emissions that were not specifically addressed in
the permit. Of course, under 70.5(b)(6), sources are
obligated to reasonably anticipate potential operating
scenarios in their application. In addition, omission of
applicable requirements from permits is a basis for EPA
veto.
EPA interprets section 502(b)(10) to require that
changes in operations which do not trigger the requirements
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to reopen and revise the permit are nevertheless subject to
the substantive requirements of the Act that might apply to
the changed operations (including any more stringent State
requirements for NSR), even if those requirements are not
reflected in the unrevised permit. Accordingly, section
502(b)(10) is designed to avoid having the States and EPA
continually repeat the full permit review process to reflect
only minor changes in operation, but it does not alter a
source's obligation to comply with any requirements of the
Act which apply to its operations.
The interaction of the "permit shield" provisions in
section 504(f) with the "operational flexibility" provisions
in section 502(b)(10) suggests this interpretation. The
permit shield provides that compliance with a permit is
deemed to be compliance with the requirements of the Act to
the extent the permit contains those requirements of the Act
or contains a specific finding that a requirement does not
apply. To the extent a permit does not address requirements
that apply to a change in operations at a facility, those
requirements are necessarily outside the scope of the
protection provided under the permit shield provision.
Therefore, the source must comply with those requirements,
precisely because they are not reflected in the permit.
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EPA interprets section 502(b)(10) to require that the
source give at least 7 working-days advance written notice
to both the permitting authority and EPA. This notice must
contain sufficient information to determine what new
requirements of the Act apply 'if any) to the changed
operations beyond those the permit already imposes. Of
course, the permitting authority must incorporate anj
changes not covered by the current permit upon renewal.
This could possibly allow certain changes to occur without
certainty to either the source or those trying to enforce
the permit as to the requirements that the source must meet.
The EPA is therefore taking comments on its proposal to
require a timely update of the permit before renewal after
notification has occurred, provided that the permit change
would be focused administratively and the new version of the
pert..- would be made publicly available.
The EPA believes that this proposal maintains certainty
as to what requirements are applicable to the source and is
com. tent w. .ection 502(b)(10) which ensures that
sources may reasonably act without the need for a permit
revision tc incorporate changes not anticipated during
permit issuance. The Administrator also solicits comment on
th« jsition that the permit shield would not subsequently
apply to the changed portion of the update since these
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changes would not be established with the opportunity for
EPA review and after public participation. Upon renewal, or
if subjected to permit modification (optional), the new
conditions would be eligible for this protection to the
extent the permit shield would apply.
(c) Title I Modification
The definition of modification in Title I of the Act is
crucial in determining the potential scope of section
502(b)(10). The provisions defining a modification under
Title I of the Act are quite broad, including those under
NSR, PSD, NSPS, and the new Title III provisions in
section 112(g).
The preconstruction review programs under Title I
generally define modification as any physical change, or
change in the method of operation, which will result in an
annual increase of potential emissions of any regulated
pollutant to a given level. Certain activities are exempted
from this definition, including (but not limited to) changes
in operating rates without a capital expenditure; changes in
the number of hours of operation; some changes in fuel or
raw materials; some energy-saving fuel switches; changes in
ownership; and routine maintenance, repair, or replacement.
For a detailed list of exemptions from the definition of
major modifications for nonattainment area pollutants, see
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40 CFR 51.l65(a). For exemptions for attainment area
pollutants, see 40 CFR '51.165(b) and 40 CFR 51.166.
The NSPS and NESHAP programs under Title I also require
certain modifications to existing sources to be regulated.
The NSPS and NESHAP modifications are defined as any
physical changes (or changes in the method of operation)
which will result in any increase in emissions to the
ucmosphere. The exemptions to the NSPS and NESHAP
definitions of modification, in many cases, are similar to
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on whether the reviewing authority could instead issue a
separate integrated permit addressing both preconstruction
and Part 70 concerns for those activities involved in the
modification which would be incorporated into the conditions
of the permit of the entire source upon its renewal.
Section 112(a)(5) sets forth yet another definition of
"modification", this one for purposes of sources of
hazardous air pollutants (regardless of whether they are
subject to a standard or regulation). "Modification" is
defined for these purposes as "any physical change in, or
change in the method of operation of, a major source which
increases the actual emissions of any hazardous air
pollutant emitted by such source by more than a de minimis
amount or which results in the emission of any hazardous air
pollutant not previously emitted by more than a de minimis
amount." This definition, however, is qualified by
section 112(g)(1)(A). That provision States that M[a]
physical change in, or change in the operation of, a major
source which results in a greater than de minimis increase
in actual emissions of a hazardous air pollutant shall not
be considered a modification, if such increase in the
quantity of actual emission of any hazardous air pollutant
from such source will be offset by an equal or greater
decrease in the quantity of emissions of another hazardous
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air pollutant (or pollutants) from such source which is
deemed more hazardous,•pursuant to guidance issued by the
Administrator under subparagraph (B)." EPA is to promulgate
this guidance within 18 months of enactment of the 1990 Act
Amendments.
Some States may have more expansive definitions of
"modification" than required under Federal law for the
purposes of imposing BACT or other new source requirements.
EPA encourages States to examine whether they wish to use
the State or the Federal definition of modification to
require repermitting under Title V EPA does not interpret
Title V to require that the concept of "modification" must
be identical as a matter of State law for the purposes of
both reopening the permit and imposing substantive new
source requirements. The State may rely on the Federal
definitions of modification under Title I to trigger
repermitting, while retaining its own definition of
modification for imposing new source requirements through a
less formal process such as those described below for permit
amendments. However, the State must at least be consistent
with the definition of modification contained in the
federal lyappr oved SIP.
If a proposed change by a source would qualify as a
Title I modification, section 502(b)(10) requires that this
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be approved through a permit revision. In the following
discussion on permit revisions, a permit revision can be
processed using one of three different procedures. The
Administrator, for reasons discussed below, is proposing
that Title I modifications which have undergone an EPA-
approved preconstruction review process can be
administratively incorporated into the Part 70 permit for
the affected source without the need to repeat the public
and technical review process.
(d) Flexible permits
It will be important to draft permits that provide the
source with reasonable flexibility within the permit while
enforceably imposing the Act's requirements on those
operations. Operational flexibility is often a critical
concern because manufacturers must be able to respond
quickly to changing economic conditions and market
opportunities if they are to remain competitive in the
global market place. This is also important to regulators;
processing unnecessary permit modifications for routine
changes could take much time while providing little
environmental benefit. To the extent that permitting
authorities can accommodate a source's anticipated
emissions, the source will be less likely to have to reopen
its permit and will not have to submit written notices for
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changes, and the public will be better apprised of the
requirements applicable.to the facility over time.
The following examples of .industrial operations
underscore the need for operational flexibility. Various
aspects of automobile plant operation frequently change, not
only from one model year to the next but also within the
model year. Pharmaceutical batch plants produce small
quantities of chemicals to meet consumer demands for
specialized products. Although the types of chemical
feedstocks and corresponding emissions can generally be
predicted over the longer run, short run market demands are
often unpredictable and the manufacturer must be able to
respond quickly. Chemical and petroleum storage tank
leasing at ports and pipeline terminals present another
challenge in that they handle a very wide range of
chemicals, often on short notice.
It should be noted that several State permitting
authorities typically address these issues now and that many
regulatory agencies have identified creative ways to give
industry needed permitting flexibility while ensuring that
the underlying substantive requirements of the program are
still met. These approaches have been generally recognized
by the affected parties as appropriately implementing and
making enforceable the requirements of the Act, while
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providing industry with needed operational flexibility. The
following discussion of EPA proposed policy is consistent
with existing State permitting practices.
While EPA believes that operational flexibility is
critically important to the fair and efficient
implementation of the permitting program, this practice must
be carefully implemented if Title V permits are to ensure
application of all regulatory requirements and reasonable
enforcement of those requirements. Therefore, this relief
is necessarily limited in several important ways.
First, it should be made clear that this practice
allows sources flexibility in meeting the applicable
requirements, not in avoiding them. A source cannot be
granted a level of flexibility in its Title V permit that
would allow it to avoid application of applicable
requirements of the Act, such as those imposed by NSR, NSPS,
NESHAP, or otherwise applicable SIP requirements.
Second, any limits must be clearly enforceable. It
should be noted that any alternative limits can only be
issued to the extent that they are allowed by the underlying
applicable requirements imposed by NSPS, NESHAP, NSR, or the
SIP.
Third, the degree of flexibility available to the
source may vary with source and pollutant-specific concerns.
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For example, if carbon adsorption is used for emissions
control, the permit may need to pay special attention to
types of VOC's, e.g., some are much more likely to "break
through" the carbon bed, or a different type of carbon bed
may be indicated for alcohols. Similarly, incineration of
chlorinated compounds should be avoided; and the collection
reagents used in scrubbers vary considerably in
effectiveness, depending on the pollutant to be captured.
Finally, there are probably a small number of
situations, involving especially hazardous or toxic
compounds that present a focused need to protect health and
welfare that may make options for operational flexibility
very limited.
The EPA is evaluating administrative mechanisms that
would provide for permit drafting such that a source could,
in the course of normal operation, readily change production
methods without needing to apply for a modified permit for
each change. This exemption from permit revision would not,
of course, exempt from permit review any operational changes
which cause a source to be newly subject to any requirements
of the Act. This concept is, instead, designed to avoid
permit changes for more routine anticipated changes in
source operation. The permitting authority must ensure that
any permit conditions designed to provide operational
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flexibility must be clearly identified as such to be
highlighted for EPA review. Various types of candidate
approaches are described below. Public comment is solicited
on these and other approaches to implement the requirement
to provide operational flexibility.
o Permit in the Alternative; The permit can list
the pollutants and control requirements for the
anticipated operating scenarios. The permit would
specify the source's pollution control
requirements for each anticipated process or
product line to be used. For example, the permit
for a chemical batch processing facility can allow
for various configurations and operating practices
that the facility plans to use, obviating the need
for obtaining additional approval when the changes
are made.
o Permit bv Classes of Chemical; State programs
often provide that groups of chemicals can be
treated interchangeably for certain purposes. For
example, a State's requirements for VOC emissions
from storage facilities may be based on classes of
compounds, classified by vapor pressure, rather
than single compounds, e.g., the most volatile
compounds could be stored only in pressurized
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tanks, those of intermediate volatility could be
stored in floating roof tanks with double seals,
while those of lowest volatility could be stored
in fixed roof tanks. One State reports that it
uses this approach in addressing the needs for
operational flexibility in permitting extensive
tank farms providing contract storage of chemical
and petroleum products at a port and pipeline
terminal. That State clearly specified control
requirements based upon five classes of chemicals,
allowing the facility complete freedom to store
any chemical in any tank with the required, or
higher, level of control. This is enforceable
because it allows a field inspector to determine
compliance unambiguously for any chemical stored
in any tank, without burdensome restrictions on
the facility's freedom to manage its operations
efficiently.
o Permit in Anticipation of the Most Restrictive
Case; A State may appropriately allow
considerable flexibility if the worst case
emissions scenarios are dealt with in the permit,
or if specific controls or other limitations, such
as those on capacity utilization/ are agreed to.
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For example, a source might be given great
flexibility in the type of VOC emitted, if it
agreed to provide emissions controls consisting of
both carbon adsorption and incineration. Another
example reported by a State involves a chemical
storage facility that routinely is asked to store
any of numerous types of chemicals, often on short
*
notice. The source and State came to an agreement
whereby a very wide range of chemicals could be
stored, if stored in pressurized tanks and the
emissions were flared.
(e) Additional Implementation Issues
Designing operational flexibility within a Part 70
permit presents several other implementation issues upon
which EPA solicits comment. Sources are required to pay
permit fees, which may often be based on their potential to
emit. A permit allowing a source flexibility to produce a
considerable range of emissions might, therefore, result in
the source owing fees based on emissions much higher than
those reflective of normal operation. In addition, the gap
between the allowable emissions of a permitted source (which
provide the desired operational flexibility) and its actual
emissions needs to be accounted for in terms of impact on
the long term strategy to show attainment and maintenance of
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the NAAQS. The Administrator takes comment on how to
address these emissions gap concerns.
(f) Classes of Permit Revisions
M..nor and major permit amendments and permit
modifications are the hree types of permit revision and are
addressed in section 70.7 01 the regulations. They refer to
source-proposed changes to revise Part 70 permits prior to
their renewal and not to situations where t 3 reviewing
authority initiates a permit revision (i.e. reopen for
cause) or where the changes would meet the : ^uirements of
section 502(b)(l">) and not require a permit revision, while
permit revisions will inevitably result froc changes which
could not be reasonably anticipated, EPA believes that
better use ce flexible permits should be implemented with an
increasingly better idea of what operational flexibility is
needed based on the previous version(s) of the Part 70
permit. This in turn should result in greater certainty and
less resource requirements for all concerned.
To deal with the expected large initial numbers of
requested permit revisions, EPA is proposing that the
mentioned three types of permit revisions ref r respectively
to those: (1) that can be addressed by amending the permit
with simple administrative actions; (2) of de minimis
consequence that do not warrant the full procedure for
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processing permit revisions described for permit
modifications; and (3) more substantive changes which can be
approved as permit modifications only after a review by the
permit reviewing authority and an opportunity for public and
EPA review is provided.
(g) Minor Permit Amendments
The first type of permit revision is defined in Part 70
as a minor permit amendment and includes only those
administrative changes which either do not affect the basic
elements of a permit or air quality or changes which already
have been reviewed and processed under an NSR procedure
approved into the SIP. The EPA proposes that minor permit
amendments can be handled by direct correspondence from the
permitting authority to the facility after the appropriate
information related to the changes has been supplied by the
facility. Minor permit amendments will address only the
items prompting the amendment(s). A copy of the amendments
»
should be supplied to EPA and a copy also placed in the
record which is available to the public in accordance with
section 503(e). To save resources without compromising the
requirements of the Act, it is not necessary, nor is it
typically advisable, to subject minor permit amendments to
the full rigors of the permit issuing process.
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The EPA is proposing that the following types of
changes can at the discretion of the permitting authority be
handled as permit amendments and that such changes should be
reported to EPA, but no later than the date specified for
the at least semi-annual reporting on the source's
compliance status. These types * revisions include chano s
in mailing address, ownership of the source (or part of the
source) unless restricted by Title IV, contact persons,
compliance schedules that do not affect the final compliance
date, and changes in individuals who have assigned
responsibilities, including the responsibility to sign
permit app: nations. Note that if EPA's proposal to subject
changes qualifying under section 502(b)(10) to be
administratively incorporated into their permit, then the
separate class of minor permit amendments would be reduced
to those m* -oned below involving the NSR program.
In addition, EPA is today proposing to treat two other
types of changes initiated by an existing source as minor
permit amendments and igible for the mentioned expedited
processing. First, changes which hav* been processed under
the preconstruction review process which has been approved
by EPA into the SIP have already in a source-specific way
been subjected tc sufficient technical review and adequate
opportunity for public irticipation. The Administrator
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believes that to require the permit revision procedure
described in section 502(b)(6) to be followed simply to
incorporate the results of the new source review program is
unnecessary and redundant. Moreover, subjecting sources to
another review could subject vast numbers of sources to
significant delay and uncertainty without any real
environmental benefit. EPA believes, therefore, that the
permitting authority should be allowed to revise the Part 70
permit administratively to reflect NSR limits.
Similarly, EPA is also proposing that changes to any
interim milestone within a compliance plan contained in a
Part 70 permit may be adjusted administratively, provided
that (1) the source is currently not in violation of any
applicable requirement, (2) any compliance deadline is not
changed, and (3) the change would not be inconsistent with
any State or Federal judicial order. Therefore, the changes
allowed by this process would be limited to changes in the
interim schedules for operation and maintenance provisions.
Such treatment would be consistent with 40 CFR 51.102(c)
regarding the need for hearing.
The Agency also believes that correction of
typographical errors would be accomplished through the
permit amendment procedures, rather than the permit
modification procedures. In addition, the Agency requests
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comments on whether the permit amendment procedures are
appropriate for requiring more frequent monitoring, and for
deleting a unit from permitting requirements where emissions
from the unit have terminated, so long as the termination of
emissions from that unit does not results in an increase in
emissions from any other unit or units. The EPA invites the
public to propose other types of changes which should be
handled by the minor permit amendment process and comment on
these suggestions.
(h) Major Permit Amendments
The second type of permit revision i; a major permit
amendment. It involves more significant c anges to the
permit than do minor permit amendments, bi - not substantial
enough to warrant a repeat of the original issuance process,
as is the case for permit modifications and permit renewals.
Major permit amendments would not qualify for processing
under section 502(b)(10) since they include unanticipated
changes that would increase the total emissions allowed
under the current version of the permit for any regulated
pollutant emitted from any of the emissions units covered in
the permit, provided that these increases would be
considered 4g minimis or insignificant. The proposed
criteria for dfi minimis is 10 tpy for any regulated
pollutant, or 40% of the applicable major source threshold,
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whichever is more binding. These criteria may subsequently
be superseded in stringency by rulemaking done by the
Administrator, including any done pursuant to
section 112(g).
The process proposed by the Administrator for
accomplishing major permit amendments is quite simple. It
would first require the source to give at least 7 days prior
notice to the permitting authority, the Administrator, and
other parties previously offering comment on the issuance of
the Part 70 permit now in effect, and any other parties
designated by the permitting authority who have reasonably
expressed interest. The permitting authority in its
rulemaking may provide for a different, shorter timeframe
for revisions involving emergencies. The notice itself must
describe the nature and timing of the proposed change and
any needed changes to the conditions of the permit necessary
to assure compliance of the source with all applicable
requirements of the Act (including any new ones triggered by
the proposed change or needed to ensure effective monitoring
and reporting), and any other information reasonably needed
by the permitting authority to process the permit revision
as an administrative update to the permit. The latter must
occur promptly (i.e., not more than 60 days) and any changes
so made must be designated as major permit amendments. The
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permit revision must also then be made available to the
public, including a submittal of a copy to the
Administrator.
The source, under the proposed process, can implement
the change upon giving the required notice. Unless the
permitting authority objects to the noticed changes within
the 7 working-day period (excluding emergencies), and on
grounds that the proposed change does not qualify for
processing as a major permit amendment, the source can
continue implementing the change. In doing so, the source
will still be considered to have a valid permit for purposes
of section 502(a), but not be considered eligible for the
permit shield protection available after permit issuance,
modification, and renewal. Without the opportunity for EPA
review and full public participation (including the
opportunity for a public hearing, the Administrator believes
that the permit shield in section 504(f) should not apply.
Therefore, any new conditions of a Part 70 that were
established as minor or major permit amendments do not have
the protection of section 504(f) available to them before
permit renewal. Instead, the source must assume the
liability for enforcement actions brought to force
compliance with any applicable requirements of the Act
related to the change covered by the permit amendment.
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Alternatively, a source may request to have any change
processed as a permit modification in order to preserve the
ability for a permit shield to apply, subject to the
limitations described in section 70.6(h).
One possible drawback to the major permit amendment
process described above is that States may not have
sufficient time to adequately review some of the notices
submited by the sources. If that were the case, these
proposed changes might routinely be granted by default
simply because the permitting authority did not have time to
act on the notice. Moreover, if the State later determined
that the change did cause problems or was not consistent
with applicable requirements, it would be more difficult
from a practical standpoint to reopen the permit at that
time. This would be especially true if the source had
reconfigured its equipment, or already made investment
decisions relying on the State's failure to deny the
proposed change.
The EPA is therefore soliciting comment on a somewhat
different process for handling major permit amendments.
Under this approach, a State permitting authority would be
allowed or require to have a short pre-defined period (such
as the 7 working-day period in the proposed regulations)
during which it would be required either to (1) approve the
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operatinal change, or (2) decide whether further review is
necessary. If State approval were given, EPA would have 45
days to review the permit. But the operational change could
be implemented immediately, rather than at the end of the
EPA review period. The EPA solcits comment on this
alternative method for processing major permit amendments.
The EPA also solicits comment on how the de minimis levels
used in either of these alternative aproaches should be
measured, including whether total or net emission increases
should be the basis for determining whether a change is de
minimis.
(i) Permit Modifications
The third type of permit revision [not qualifying as
minor or major permit amendments or for processing under
section 502(b)(10)] involves changes which are more
fundamental changes in the source's processes or operations,
or brought about by changes in the source's method of
implementing the permit requirements. Part 70.2 defines
these more substantial permit changes as permit
modifications.
Since permit modifications involve significant
emissions increases or deal with revising one or more of the
basic elements of a permit that are included in the permit
to assure source compliance with SIP limits and other Act
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regulatory requirements, the permit modifications which are
proposed should be subject to the full rigors of the permit
issuance process, as was the initial permit. Therefore,
before a permit modification can be issued, the proposed
changes must be subject to scrutiny by the permit review
authority and submitted to the public and EPA for comment in
accordance with the procedures proposed in section 70.8.
EPA stresses that only the subject material associated with
or impacted by the modification need be exposed to oversight
and comment. The Administrator proposes that a permit
modification does not affect the expiration date of the
permit. To adjust the fixed term for various conditions of
a Part 70 permit upon its modification would unnecessarily
place the subsequent renewal schedule on multiple tracks,
which is both confusing and resource intensive. The only
aspects of a permit that require change are those which
relate directly with the subject material of the
modification. Of course, a State may choose to issue a new
permit, rather than simply modify the existing one. Acid
rain permits, however, must be issued for a fixed-term of
five years. In order to promote national consistency in
acid rain permitting, the Agency is recommending that when
provisions in a permit for an acid rain affected source need
to be modified, that the permit not be reissued.
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(6) Section 70.6(f) - General Permits reflects
section 504(d) which authorizes permitting authorities to
issue a "general permit covering numerous similar sources."
The EPA anticipates that States will use this authority to
reduce the administrative burden of the Title V permitting
program for both the permitting authority and the permitted
sources. General permits may be especially useful in easing
the burden of the program on small businesses. Therefore,
the Agency wishes to clarify its understanding of how this
authority will operate in the context of operating permit
programs generally.
Determining Where to Use General Permits. Generally,
EPA will allow the permitting authorities with approved
programs to determine whether to issue general permits, and
for which source categories. If, however, a permitting
authority determines that the general permit should apply to
a category of major sources or of affected sources under the
acid rain program, the permitting authority must submit that
general permit to EPA as a program modification. The
permitting authority will first determine whether there are
clearly definable source categories for which general
permits might be appropriate. Key criteria in any such
determination are source size and similarity of sources
within the category; categories made up of numerous, small,
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nearly identical sources are ideal. At least initially, EPA
does not anticipate issuing any nationally applicable
general permits. In the future, EPA may develop model
general permits for appropriate categories of sources
subject to federally-drafted standards, such as NSPS or MACT
standards. The permitting authorities may then adopt these
models as appropriate to the circumstances in their States.
Permitting authorities may also choose to develop
general permits for categories of numerous, identical
emissions units within larger sources. For example, there
may be standard operating conditions defining limitations
and subsequent compliance obligations that a permitting
authority could incorporate into a general permit for
specific types of degreasers. A permit for a large
manufacturing operation with numerous permitted emissions
units could incorporate the terms of the general permit for
the type of degreaser the facility uses, along with the
terms drafted particularly for that source.
Issuing General Permits. Title V requires that the
permitting authority provide notice and an opportunity for a
public hearing when issuing a general permit. In contrast
to section 502(b)(6), governing issuance of standard
permits, section 504(d) does not explicitly require an
opportunity for public comment with respect to individual
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sources when issuing a general permit. The EPA suggests,
however, that permitting authorities wj>uld be well advised
to provide the public an opportunity to comment on general
permits as well. Otherwise, the interested public may
insist on a public hearing, even when submitting a comment
would have satisfied the commenter. The nc-ice for the
general permit must allow the public an opportunity to
review the scone of the source category under the permit
(but not necessarily a listinr if specific source sites that
might be covered), He terms and conditions which the permit
will impose on tw,?t. category, and the ap; ication process by
which individual sources will receive the right to operate
under the general permit.
There may be opportunities for States to consolidate
the issuance of general permits with the adoption of SIP
regulations. Section 110(a)(2) and (3) require that states
provide reasonable notice and a public hearing for all
revisions to its SIP. A State may determine that a new SIP
regulation will apply to a source category for which general
permits would be appropriate. The State cc d use the same
notice and hearing for both the SIP rule and the general
permit. After the State finalizes the SIP rule and is ready
to issue the general permit, it could then submit the
general permit to EPA for review under section 505.
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Once the permitting authority has offered an
opportunity for public input on the issuance of the general
permit, it may grant permits to individual sources under the
general permit without additional opportunity for public
input. Section 504(d) provides that sources covered by a
general permit are not relieved of their obligation to file
an application as otherwise required under Title V.
Therefore, sources covered by a general permit will have to
submit an application to the permitting authority, and may
be asked to also submit an appropriate permitting fee.
Depending on the complexity
of the source category under the
general permit, such application processes could simply be a
brief application requestirg a permit consistent with the
general permit, or a more detailed Statement establishing
that the source qualifies for the permit. Generally, EPA
expects that applications for general permits will be quite
simple, because the sources! in each category will be very
similar. Within limits discussed below, it is for the
permitting authority to balance the desirability of a simple
application against the flexibility gained by broadening a
source category and introducing variables into the
application process. When the permitting authority accepts
the application, the permitting authority can then issue the
individual permit by mailing the applicant the appropriate
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permit. All general permits, and the individual permits
issued under them, must conform to all requirements (e.g.,
they must have monitoring, rt- -ordkeep 'ng, and compliance
certification provisions of these regulations).
"ie EPA is also considering an alternative approach for
applying general permits to individual sources. Under this
alternative, rather than issue individual permits to
applicants, the permitting authority might simply construct
the general permit so that it applies automatically to any
source within the source category covered by the general
permit. In that case, the individual source would st.il! be
v ar an obligation to submit an application identifying and
c .cribing the source — so that the permitting authority
and the public could determine whether the general permit
applies to the applicant — but tl authority would not need
to not • the source through an individualized permit that
the general permit applies. Of course, the permitting
authority might still notify some oplicants that the
general permit did not apply to them. Beyond that, a source
could opt out of this approach by requesting that the
permitting authority issue a spec -ic individual permit for
the source.
4 main advantage of this approach is that it would
reduce the administrative burden associated with requiring
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the permit authority to issue individual permits to the
potentially hundreds or thousands of sources that would be
subject to general permits. The main disadvantage is that a
citizen or inspector visiting the source would not be able
to view, at the source, a permit issued by the State
specifically for that equipment. Rather, he or she would
need to rely on the wording of the general permit (residing,
perhaps, only in the offices of the permitting authority) to
determine whether the general permit indeed applied to the
source. Moreover, the public would not be able to challenge
the general permit's applicability to a particular source
during the permitting process since the permitting authority
would not make such an applicability determination as part
of that process. The EPA solicits comment on whether it
should allow State programs to employ this or other
streamlined methods of general permitting in light of their
advantages and disadvantages, or whether individual permits
need to be issued to each source covered by the terms of a
general permit.
Overseeing General Permits. The EPA will treat the
issuance of a general permit as it would that of any other
permit. Therefore, general permits will be subject to the
review process under section 505, including neighboring
State and EPA review. The general permit must include clear
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criteria for determining whether a source qualifies for the
permit, the terms and conditions applicable to the source,
and an application process for obtaining individual coverage
under the general permit. As with regular permits, EPA will
use its review opportunity under section 505(b) to determine
whether the terms and conditions of the general permit
assure compliance with the requirements of the Act
applicable to that source category in the relevant State.
Unlike regular permits, however, EPA must also make a
judgement at this stage in the process whether the general
permit and its attendant application process are reasonably
structured to permit qualified sources and exclude
unqualified sources. There may be cases where EPA must
object to a general permit because the permitting authority
is applying the concept to an inappropriate source category
or is not askirg for the information necessary to apply the
general permit accurately to specific sources.
After the permitting authority has issued the general
permit, EPA will not engage in any direct review under
section 505 of the permitting authority's approval of each
source's application to operate under the general permit.
The EPA must, however, continue to receive a copy of all
final permits issued to individual sources. The
Administrator may later determine that a source is operating
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under a general permit, but does not in fact qualify for the
permit, perhaps in an audit or source inspection. The EPA
then has several courses of action available. If the source
has clearly misapplied the criteria for receiving the
general permit, EPA may enforce against the source under
section 113 for a failure to meet the qualifying criteria,
which must be included as terms of the general permit, as
discussed above, as well as for failure to meet any
applicable requirement of the Act. The source may also be
liable for filing a false application if it misrepresented
its qualifications for the general permit. If the
qualifying criteria as they apply to a particular source are
unclear, EPA may use its authority under section 505(e) to
terminate the general permit for that source, and require
issuance of a regular permit. Finally, if EPA determines
that a properly issued general permit when applied to its
source category proves to be impracticable or fails to
assure compliance with the Act, EPA may revoke or reopen the
general permit under section 505(e).
G. Section 70.7 - Permit Issuance. Renewal. Revisions, and
Reopeninqs
The Amendments set forth detailed provisions with
regard to the process by which permits are issued. This
section of the preamble describes EPA's proposed regulations
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for permit issuance, renewal, and reopenings, including
those requirements regarding essential permit issuance
procedures necessary for obtaining approval for a State
program. The requirements for permit revisions were
discussed in the previous section of this preamble [IV.F.].
(1) The Application Process and State Review
As noted in section IV.F., the submittal of a complete
application is a crucial part of the permit issuance
process. States are required to have procedures for both
determining the completeness of applications and for
expeditiously processing them. Because of the critically
important nature of this step, the proposed regulations
would require States to promptly notify sources of the
results of the completeness determination
[40 CFR 70.7(a)(2)].
Pursuant to section 503(d), the timely submittal of a
complete application and the continued timely submittal of
any additional information creates a legal "shield1* from
enforcement action for operating within a permit. For
purposes of permit renewals, timely will mean submittal of
the application 18 months prior to the expiration date of
the permit, unless another time is approved by the
Administrator. It should be noted, though, that the
complete application does not shield the source fror
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compliance with substantive air pollution control
requirements. (There is one specialized exception to this
rule in the case of applications for acid precipitation
permits. This is discussed in section IV.G.(5)(a) below.)
Similarly, this shield does not affect the source's
obligation to meet any applicable new source review
permitting requirements, including the requirement that a
new and modified source obtain a construction permit prior
to initiation of construction and an operating permit before
operation.
Despite the protection to operate provided under
certain circumstances when a timely and complete permit
application is filed, EPA believes that it makes no sense to
deprive a source of such protection where an application is
only slightly overdue. Otherwise, a permitting authority's
failure to act on an application during the prescribed
review period could lead to a source shutdown even if the
source submitted its application only a few days late. The
EPA proposes to solve this problem by providing in
section 70.7(b) that the application shield will not be lost
simply because a complete application was submitted less
than three months late. This proposal is supported by the
language in section 503(d), which states that under most
circumstances, if a source has submitted a timely and
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complete application, "the source's failure to have a permit
shall not be a violation of this Act (emphasis added)."
Nothing in the Act prohibits EPA from exercising its
discretion to extend this application shield in other,
appropriate circumstances. The regulations make clear,
however, that a source remains subject to an enforcement
action and penalties for failure to submit a timely and
complete application for the entire period that the
application was late.
The EPA also proposes for comment that the application
shield should still apply where a Part 70 source submits a
timely application but which the permitting authority
determines to be incomplete, despite its recognition of a
good faith effort on the part of the source to file the
required information. If the source cures any deficiency
during the expeditious time period specified by the
permitting authority (i.e., a few days), then the
application shield can apply from the time when the "good
faith" application was submitted.
State programs are required to have procedures for
expeditious and efficient processing of permits. Pursuant
to section 503(c), the permitting authority shall issue or
deny the permit within 18 months of receipt of a complete
application. (The initial phase-in of the program presents
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an exception. In that case, any shorter timetable specified
in the transition plan will supersede the 18-month
requirement.) The program must provide that failure of the
permitting authority to act within this time period shall be
treated as a final permit action solely for purposes of
judicial review to require that action be taken by the
permitting authority on the application without additional
delay [502(b)(7)]. In other words, while the failure to
issue a permit can be reviewed judicially, the permit cannot
be deemed to be approved or disapproved at that time. One
potential difficulty in obtaining program approval arises
from provisions for default issuances under State law. Some
State statutes provide that a permit based upon the
submitted application will be automatically issued after the
passage of a certain time period if the State permitting
authority has failed to act. Such default issuance is
inconsistent with the State permit processing requirements
of Title V and, obviously, with the requirements for Federal
oversight contained in section 505.
All sources obtaining NSR permits will also be required
to obtain Title V operating permits before commencing
operation, i.e., it is not sufficient that the source submit
a timely and complete application before operating
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[503(d)]. This has prompted interest in the possibilities
for integrating or coordinating these two permitting
systems. The EPA is aware that some States currently
integrate their issuance processes for construction and
operating permits and wishes to minimize disruption of
existing practices. In addition, this practice might
address the concern expressed by some industry
representatives that early issuance of the operating permit
would aid in qualifying for construction loans. The EPA
concludes that such program integration would be consistent
with Title V. States preparing such programs must, however,
carefully scrutinize them so as to maintain consistency with
the requirements of Title V. For example, the term of the
operating permit would begin running immediately upon
issuance of the integrated permit. Payment of emissions
fees, submittal of compliance plan and certification, and
future permit renewal must also be addressed.
(2) Publig ^pyyient
Title V emphasizes the importance of a well established
procedural basis for permit issuance. Public comment is a
cornerstone of this, and the following preamble section
examines the provisions of Title V on this subject.
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(a) Public Information and Notice
Pursuant to section 502(b)(6), State programs are to
have formal procedures for providing public notice of
permitting actions. Each permitting action must be
supported by an official record that is available to the
public. The notice should include both substantive
information, regarding the source itself, and procedural
information, regarding the public's opportunities for
participation. The extent of source-specific information
required for the notice will vary, depending on the size and
type of source and the applicable requirements, but should
at least include the source's name and type of facility,
size, regulated emissions, and principal regulatory
requirements. The procedural information, which will
probably be Stated in standardized language used for every
permit action, should describe the public's opportunity for
comment, including the availability of the official record,
the duration of the comment period, and the opportunity for
a hearing. Notices for hearings should briefly describe the
procedure by which the hearing can be requested.
The process for publishing public notices of permitting
actions has always been of considerable practical interest
to State agencies: extensive publications of notices in
newspapers of general circulation can be time consuming and
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can entail appreciable expense. For this reason, state
agencies have generally not used t, .s form of publication
except for certain types of sources or egulations, or where
specifically required by Federal law, most notably under the
PSD and nonattc .nment NSR provisions of the Act
[40 CFR 51.166(q)]. The proposed regulations require that
the State provide public notice "by advertisement in the
area aff sted" [70.7(j) (2) ]. The EPA solicits comment on
public notice procedures, including any currently used by
State programs, that might be less administratively
burdensome than individual newspaper publication, while
still meeting the requirements of Title V. This issue is of
particular importance to this program because of the large
number of permits involved and the fact that most permitting
actions incorporate SIP limits that have alread' undergone
public review, and should therefore be noncontroversial.
Options to be considered include the use of State
publications analogous to the EDERAL REGISTER and of bulk
processing of notices.
Section 505(a)(1) requires that the permitting
authority transmit to the Administrator "a copy of each
permit application (and any application for a permit
modification or renewal), or such portion thereof, including
any compliance plan, as the Administrator may require" as
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necessary to carry out EPA's responsibilities under the Act,
and a "copy of each permit proposed to be issued and issued
as a final permit." The potential use of various approaches
to streamline or focus the process of state information
submittal to EPA has been a topic of considerable interest,
given the number of permits and amount of information
involved.
Mechanisms for waivers of the notification
requirements, and thus of EPA, are discussed in
section IV.H. In addition, the notification requirement
might be streamlined pursuant to section 505(a)(1)(A), which
requires the submittal of permit applications to EPA "or
such portion thereof ... as the Administrator may require"
to carry out EPA's responsibilities. The EPA solicits
comment as to the extent of this flexibility and how this
information submittal process can be streamlined in a manner
consonant with EPA's responsibilities as guarantor of the
permitting process. Examples of such practices might
include summary sheets with certifications, instead of
comprehensive submittals, for certain routine permitting, or
the use of electronic submittals. For acid rain, summary
sheets with certifications will not be authorized in lieu of
submitting complete applications and draft permits to EPA.
The Agency, however, is considering the use of electronic
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submittals of applications and draft permits for acid rain
affected sources to minimize the submission burden.
Section 5 5(a)(2) also requires the permitting
authority to provide notice to all States "whose air quality
may be affected and that are contiguous" to the subject
State, or that are within 50 miles of the source, of each
permit application or proposed permit forwarded to the
Administrator. This regulation would require that the draft
proposed permit for which the permitting authority offers
public notice and an opportunity for public comment and
hearing also be provided to those affected States. The
permitting authority shall provide an opportunity for those
States to submit written recommendations. If those
recommendations are not accepted, the permitting authority
shall so notify that State and EPA in writing and provide
.ts reasons. This process appears straightforward.
Particular administrative details, such as how much of an
application should be transmitted nay appropriately be
addressed by agreements between the relevant States.
The one area where clarification might be necessary is
in the definition of the term "may be affected" in section
505(a)(2)(A). The 50-mile geographic trigger, contained in
section 505(a)(2)(B), appears to provide adequate protection
for virtually any case and would a relatively simple to
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administer, compared, for example, to alternatives that
attempt to define a significant ambient impact. The EPA
solicits comment on whether any other trigger would provide
any further safeguard, beyond the 50-mile test, needed to
implement the "may be affected" test for certain pollutants.
There has been some interest regarding whether State
permitting authorities would be required to publish notice
of proposed State action on the permit (prior to EPA review)
or of final permit issuance (following EPA review). The EPA
proposes that they not be required to do so.
(b) Opportunity for a Hearing
The EPA believes the requirement in Title V for an
opportunity for a public hearing can be implemented in an
informal manner and is not requiring States in its proposed
rules to provide a full "trial-type" hearing with a verbatim
transcript and opportunity for cross-examination. The
Agency proposes that a public hearing for purposes of
Title V be an open meeting for concerned parties to express
their concerns. A summary of comments received should be
placed in the public record.
The EPA also solicits comment as to the degree of
discretion that State agencies should have to condition the
opportunity for a hearing upon certain reasonable criteria.
These might include the relevance of the issues presented by
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the requesters, and whether factual issues (in contrast to
issues of law) are presented. The granting of a request for
a hearing might also be linked to the quality of information
provided by the requester to support the request, e.g.,
whether the request reflects comments of sufficient
technical (or, possibly, legal) scope such as would benefit
from the opportunities for more complete presentation and
exchange of ideas afforded by the public hearing process.
(c) Publicly Available Records
Title V places considerable emphasis upon providing
public access to permit information. Section 502(b)(8)
requires that the permitting authority make available to the
public any permit application, compliance plan, permit, and
monitoring or compliance report, subject to the provisions
of section 114(c). (The EPA notes that section 114(c)
governs information to be provided to EPA, not to a state,
and thus the provision does not truly apply where the State
is the permitting authority. The Agency interprets
Congress's reference to section 114(c) as authorizing the
States to use the same, or substantially similar,
confidentiality criteria — otherwise the reference would be
meaningless, except where EPA is the permitting authority.
The EPA solicits comment on this interpretation.) Section
503(e) requires that each application, compliance plan
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(including the schedule of compliance), emissions or
compliance monitoring.report, certification, and each permit
issued under this title shall be available to the public.
The applicant may separately submit material subject to
State procedures which correspond to the section 114(c)
confidentiality provisions of the Act. In no event will the
contents of a permit be entitled to section 114(c)
protection. To the extent the permitting authority chooses
to make the application or other supporting material an
enforceable part of the permit, these materials would also
be publicly available.
(3) State Permit Appeals
The proposed regulations require State operating permit
programs to contain appropriate appeals procedures. Many
States currently provide an administrative process to
address appeals from permitting decisions, and EPA
anticipates that these procedures will continue to be used
for the Title V permitting program. For those cases in
which a State does not offer such an administrative process,
the Act still requires the State to provide for judicial
review in the State courts. States may require that
judicial review only be available to those petitioners who
have gone through the administrative appeals procedure first
[502(b)(6)]. Further discussion of this topic is provided
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in section V.D. It should be kept in mind that permits
cannot formally be issued with respect to Title V until the
Federal review is complete. Because of the statutory
18-month period for final action on permit applications, it
is expected that State permitting authorities will generally
issue final permits at the end of State and Federal review,
regardless of any pending appeals of the permitting
decision. However, the EPA does recognize that, in some
cases, the nature of the appeal might prompt changes to the
permit that could significantly affect commitments by the
source. In such cases State programs should have the
discretion to withhold final action on the permit while the
administrative appeal is pending. The permit challenge
procedures adopted by the States should limit the effect of
permit challenges, as is done in the NPDES program. State
authorities should provide that only the portions of a
permit specifically challenged may be stayed during the
pendency of the challenge. All other provisions of the
permit should remain in effect. The Agency is proposing
that permit challenge procedures limiting the effect of
challenges be criterion for State program approval.
In order to ensure the integrity of the various
programs which will be implemented through the permit, each
permit should also contain a severability clause. This
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clause would be designed to ensure that challenges to
portions of the permit do not affect the continuing
applicability of the other permit requirements. This
provision will further ensure that only those specific
requirements of the permit which are being challenged may be
stayed pending administrative or judicial review. In
addition, if the permittee wins the permit challenge, only
the challenged portions of the permit would be affected.
The Agency is proposing that inclusion of a severability
clause be a criterion for permit program approval. The
Agency also anticipates that permits will be vetoed if they
lack this clause.
(4) Terminate. Modify, or Revoke and Reissue
Section 505(e) provides that if cause exists to
terminate, modify, or revoke and reissue a permit under
Title V, the Administrator shall notify the permitting
authority and the source. The permitting authority then has
90 days to forward a proposed determination of termination,
modification, or revocation and reissuance, as appropriate.
The Administrator may extend this period for an additional
90 days if a new or revised permit application is necessary
or if additional information is needed from the source. The
Administrator may review proposed determinations pursuant to
the same section 505 criteria as any proposed permit
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issuance is reviewed. If the permitting authority fails to
submit the required determination, or if EPA objects to it
and the permitting authority fails to resolve the objection
within 90 days, the Administrator may, pursuant to
appropriate administrative procedures, terminate, modify, or
revoke and reissue the permit.
The criteria for Federal reopening of a permit for
cause to terminate, modify, or revoke and reissue are
essentially the same as required for State programs. These
are discussed in the following preamble section.
(5) Permit Shield and Reopeninas
(a) Shield
Once a permit is properly issued with respect to Title
V (i.e., EPA does not object to the permit in its final form
and adequate public participation has occurred), it can
become the comprehensive statement of the source's
obligations under the Act. In accordance with section
504(f), the permit, upon issuance, shields the source from
limits for failure to meet the requirement for obtaining a
permit as set forth in section 502(a).
Section 504(f) states that:
"Compliance with a permit issued in accordance with
this title shall be deemed compliance with section 502.
Except as otherwise provided by the Administrator, by rule,
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the permit may also provide that compliance with the permit
shall be deemed compliance with other applicable provisions
of this Act that relate to the permittee if—
(1) the permit includes the applicable requirements of
such provisions, or
(2) the permitting authority in acting on the permit
application makes a determination relating to the
permittee that such other provisions (which shall be
referred to in such determination) are not applicable
and the permit includes the determination or a concise
summary thereof. Nothing in the preceding sentence
shall alter or affect the provisions of section 303,
including the authority of the Administrator under that
section."
The Act describes a number of situations which are not
protected by the permit shield. First, section 504(f),
which provides for the shield, precludes the shield from
being applied when implementing section 303. Section 303
gives the Administrator emergency powers to respond to
pollution that produces imminent and substantial
endangerment to the health of persons. Second, section
504(f) gives the Administrator the authority to exempt, by
rule, certain situations from the shield. Pursuant to this
authority, the Administrator proposes here to exempt from
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permit shields, all Part 70 permits issued to sources in an
area which is affected by a SIP call under section 110(b).
The Administrator is proposing further that a permit shield
not afford any protection from liability to a source which
is not in compliance with a standard or regulatory
requirement of the Act at the time an operating permit is
issued. The Administrator is requesting comments on these
proposals and any additional recommendation' as to other
situations which should be exempted from the shield, by
rule, under section 504(f). The Agency is also proposing
that the permit shield be disallowed with respect to the
acid rain portion of the permit consistent with new section
408(h). It should be noted that section 408(h)(2) modifies
the effect of section 504(f), disallowing the permit shield
to the extent the acid rain portion of the permit is
inconsistent with Title IV. Each permit should, therefore,
clarify that the shield does not apply to acid rain
requirements, notwithstanding any generic shield language.
After a permit has been issued, any established permit
shield can be preempted by the permitting authority or the
EPA, only where the permit can be reopened for cause. The
Act contains several occasions for reopening an issued
permit, and they are discussed below in this section.
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The section 504 (f) permit shield provision of the Act
brings about certain benefits to a permittee, as well as to
the permitting program. Therefore, the Administrator
encourages the permitting authority to employ the permit
shield to help stabilize the permit process and to give
greater certainty to the regulated public. Unclear
regulatory provisions or changes in interpreting regulatory
provisions will not affect a shielded source after a permit
has been issued, unless it is later reopened for cause.
Uncertain regulatory provisions should therefore be resolved
in a public forum during the permit processing stage.
The EPA proposes that the permit shield under
section 504(f)—to the extent the source is entitled during
the term of the expiring permit—remain in effect until a
renewed permit is issued, except where inconsistent with
State law or as provided in Part 71A for the acid rain
portions of a permit, provided the source submits a complete
application for permit renewal in a timely manner.
The Agency also solicits comment on how comprehensively
to interpret the scope of the shield. One approach is to
interpret it quite broadly. For example, state that once
all the applicable requirements of section 112 are met in a
Part 70 permit at the time of permit issuance, and are
explicitly identified in the permit as meeting section 112,
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then the source can be shielded by the permitting authority
from any future section 112 requirements for the term of the
perm . Section 502(b)(9) provides some support for this
interpretation by calling for the automatic reopening of a
major source permit with a term of three or more years in
order to incorporate applicable new standards and
regulations promulgated under the Act after the issuance of
a permit. On the other hand, section 504(f) can be read to
shield the source from those requirements (read narrowly)
that were the subject of the permit issuance process and
include i in the permit. Under tl s interpretation, the
section 502(b)(9) provision for reopenings would oe viewed
as a requirement to ensure the timely incorporation into the
permit of major new regulatory requirements in order to
maintain the permit as the consolidated repository of all
applicable Act requirements.
The EPA might interpret the shield broadly by
distinguishing between the applicable "provisions" of e
Act and the applicable "requirements" of the Act. To expand
on the example mentioned above, if the permit imposes the
specific "requirements" of an applicable MACT standard, or
determines that there are no such requi: ;ments under
section 112, then the source is protected from application
of the "provisions" of section 112 for the duration of the
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permit term. Unfortunately, Title V does not appear to use
the terms "provisions" and "applicable requirements" in a
consistently distinct manner.2
It appears that the broad reading of section 504(f)
also requires a distinction between the applicable
requirements for a Part 70 source at the time of permit
issuance and those that become applicable after issuance.
Even if one interprets "provision" broadly, as suggested
above, the source is not shielded from enforcement of that
provision unless the permit contains all "applicable
requirements" of the provision. The permit would not likely
contain requirements promulgated after issuance of the
permit, except in rare cases where the permitting authority
can anticipate upcoming regulations. Therefore, a source
would only be shielded from new requirements under a
provision of the Act if 504(f) means that the permit need
Section 504(f) was a product of the Conference Committee, and therefore
neither the House nor Senate Committee reports provide much guidance. The
"Joint Explanatory Statement of the Committee of Conference," however,
suggests there is no distinction between the term "provision" and
"requirement." Section 504(f) provides a shield from provisions of the
statute if "the permit includes the applicable requirements of such provisions
. . ." (emphasis added). By comparison, the sole sentence in the Conference
Committee report addressing this provision appears to use "provision"
interchangeably with the "applicable requirements" of provisions:
"Permit compliance also may be deemed compliance with other applicable
provisions of the Clean Air Act if the permit has been issued in
accordance with Title V and includes those provisions . . .."
Conference Report, No. 101-952, at 345 (emphasis added).
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only include the applicable requirements at the time of
permit issuance. There is no indication that "applicable"
as used in Title V is limitec" to the time of permit
issuance. Indeed, the related provision in section
502(b)(9) refers to "applicable standards and regulations
promulgated . . . after the issuance of such permit." This
section suggests that requirements of the Act can become
"applicable" to a source after issuance of the permit.
The regulations as they are now structured follow this
latter interpretation. The definition of "applicable
requirements" in section 70.2 refers not only to
requirements at the time of permit issuance, but also
thereafter. As a result, the proposed shield provision in
section 70.6(h) does not protect a source from requirements
that become applicable after issuanc., of the permit, less
the permitting authority is able to anticipate those
requirements and incorporate them into the permit at
issuance.
(b) Permit Reopening
After a permit has been issued, any established permit
shield under section 504(f) can be preempted by a permit
3This interpretation would render redundant any specific exclusion in the
shield regulation for new Implementation plan requirements in nonattainment
areas subject to a SIP call. EPA includes this exclusion in the proposal to
i nte comment where a broad interpretation would be taken regarding the
overall scope of the sh 1d.
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reviewing authority or the EPA where the permit would be
reopened for cause. The Act contains several occasions for
reopening an issued permit, and provides several instances
in Title IV where changes to the permit are to be
incorporated without reopening.
One occasion for reopening a permit is in
section 505(b)(3). It provides that if the EPA objects to a
permit, the EPA shall, if a permit has already been issued,
either modify, terminate, or revoke such a permit, and the
permit reviewing authority may afterwards only issue a
revised permit in accordance with section 505(c).
Another occasion for reopening a permit is for cause.
section 502(b)(5)(d) requires that a permitting authority
must have adequate authority to terminate, modify, or revoke
and reissue permits for cause. Both the permit reviewing
authority and the EPA can require a permit to be reopened
for cause. EPA interprets this to mean a compelling reason
to reopen a permit, for example, where a substantial error
•
has been made in permit processing or data submittal whose
correction cannot wait until renewal, where fraud on the
part of the source has been found, or where changes to the
permit are necessary to protect public health or welfare and
the environment. For example, reopening of the permit "for
cause" is appropriate in order to incorporate the nitrogen
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oxide limits for affected sources under the acid rain
program. Permit applications for NOX are not due from
affected sources until after the statute requires States to
have issued permits for these sources. To include NOX
limits in these permits prior to reissuance, the permits
will need to be reopened. (States should be aware, however,
that permit revision procedures for acid rain sources will
be affected by Part 71A regulations.) Cause should not
include trivial matters (i.e., changes in a permit which
cause an inconvenience to a source but do not have a
significant effect on assuring compliance with Act
requirements). The EPA is requesting recommendations for
events and situations which provide cause for both the EPA
and a permitting authority.
The EPA proposes not to require a permit to be opened
for cause until after a permit reviewing authority has had
an opportunity to act expeditiously under its own authority
to reopen a permit for cause. If EPA notifies the state,
pursuant to section 505(e), it will then get 90 days to make
the appropriate change. The EPA further proposes that
permit reopenings be processed under the permit issuance
process, with one important exception: EPA proposes to
require the permitting authority to provide the source 30
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days advance notice before reopening and revising any permit
for cause.
Certain changes cause permits,to be reopened
automatically as defined in section 502(b)(9). The EPA
believes that section 502(b)(9) should be read to require
that the permitting authority reopen permits for major
sources with 3 or more years remaining in the permit's life
(rather than reopen all permits with original terms of 3 or
more years) to incorporate standards and regulations
promulgated under the Act which are promulgated after the
issuance of such a permit. EPA has rejected the alternative
interpretation stated in the parenthetical because it would
lead to absurd results. For example, a major source permit
with a 35 month term, and 34 months remaining until
expiration, would not have to be reopened upon promulgation
of an applicable standard or regulations; yet a major source
permit with a 20 month term, and 19 months remaining until
expiration, would. Besides being unreasonable, this would
create a strong incentive for States to issue permits with
very short permit terms, thus creating much additional
paperwork with no corresponding environmental benefit. It
would also be disruptive of existing State permit programs
because many now issue permits with five year terms. EPA
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therefore believes that this alternative interpretations was
not the result intended by Congress.
Revisions must be made as expeditiously as practicable
according to section 502(b)(9), but no later than 18 months
after the promulgation of such standards and regulations.
The 30 days advance notice to affected sources is again
proposed as a requirement for the permitting authority.
Finally, certain changes will cause a revision to the
permit by operation of law without necessitating any sort of
reopening of the permit. For example, all acid rain
allowance allocations and transfers shall, upon recordation
by the EPA and in accordance with section 403 of the Act and
Part 73, be deemed a part of each unit's acid rain permit
requirements, without any further permit review and revision
[403(d)(l)J. In addition, excess emission offset plans
shall be deemed included into the permit upon approval by
the Administrator, but without any further permit review or
revision [411(b)].
Section 502(b)(5)(D) requires the permitting authority
to have legal authority to terminate and revoke permits for
cause. EPA requests comment on the idea that the permitting
authority and EPA have discretion to revoke or terminate a
permit when a source is convicted of a criminal violation of
the Act or has a history of continuing or recurring civil
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violation of the Act. If a permit were terminated or
revoked on this basis, .EPA requests comment on what
procedure and demonstration should t>e required for
reissuance. EPA also requests comment on whether these
actions would be final actions under section 307.
(6) Permit Renewals .
Section 502(a) of the Act States that it is a violation
for a source subject to Title V to operate without a permit.
Furthermore, section 502(b)(5)(B) requires that permits be
issued with a fixed term of five years for acid rain
affected sources and with a fixed term not to exceed 5 years
for all other sources. The section 502(a) requirement to
have a valid permit is qualified in part by section 503(b)
which states the source is not in violation of
section 502(a) if a complete and timely application for
renewal has been filed by the source owner, unless the delay
in final action was due to the failure of the applicant to
submit any required information requested to process the
application. The EPA proposes that a timely submittal must
allow sufficient time, before the expiration date of the
permit, for the permitting authority to review and reissue
the permit. The EPA believes, at a minimum, that this time
must include the 45 days for EPA oversight and adequate time
for permit processing, including public participation. In
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some cases, additional time may be necessary to be
consistent with other review procedures. Therefore, EPA
proposes the timetable for application submittal by the
source be included as a condition within the permit and be
for a period of 18 months unless a different time period is
approved by the Administrator. In States where the
conditions of the permit do not remain enforceable after the
expiration of the fixed term of the permit (not to exceed
5 years) may need to require that the application for
renewal be submitted the full 18 months in advance of the
permit's expiration date.
Section 502(b)(5)-(7) requires applications for permit
renewal and the subsequent permits to be subject to the same
requirements as were the initial applications and permits
with respect to permit content and processing. This
includes allowing up to 18 months to process or complete
application. Section 502(b)(5)(c) specifically requires
that, upon renewal, all permits incorporate all applicable
emission limitations and other requirements of the SIP. The
EPA is proposing in section 70.7 to minimize the burden of
processing permit renewals by taking advantage of the fact
that, in many cases, much of the data and analyses pertinent
to the earlier permit is still applicable for the permit
renewal. Upon certification by the source owner or operator
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that no significant change has occurred at the source since
the time the existing .permit was issued, a permit renewal
application can, at the option of the permitting authority,
reference the relevant material submitted in earlier
applications as an alternative to resubmitting the material.
In addition, the renewal application must contain, in
accordance with section 502(b)(9), those items related to
new regulatory requirements which have become applicable to
the source, any other regulatory requirements which have
been determined to apply to the source, any other changes
which would ordinarily require a permit amendment or permit
modification.
Although referenced material in the renewal application
was at one time subject to public comment and EPA review
under the permit renewal process, it is again subject to all
the provisions of the permit review process. Section 505(a)
requirements for the transmission and notice of permit
applications specially affirm their applicability to
renewals as well as those applications processed during the
original issuance of the permit.
If the term of a permit expires before a complete
application is submitted, the source's right to emit is
terminated. The source is subject to enforcement action if
it continues to operate even though a complete application
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is eventually submitted until it receives a new permit. The
EPA proposes that the permit shield described in section
504(f), remain in effect with respect to requirements
addressed in the permit provided the source submits a
complete and timely application for permit renewal.
However, the permit shield will be disallowed if
requirements are inconsistent with the acid rain title.
Issues arise as to what requirements are enforceable on
the source after the fixed term of its current permit
expires and the source owner has received a new permit. The
EPA proposes that expired permit terms should remain
enforceable they are in the NPDES program, except where
inconsistent with State law or as provided in Part 71A for
the acid rain portions of a permit. In addition to the
extent that any new requirements from which the source was
previously insulated from applying to the source by the
permit shield in section 504(f), they would apply upon
expiration of the permit [IV.G.(5)].
Section 502(b)(9) deals with the need for certain
permits to be reopened in the event that applicable
standards and regulations are promulgated after the issuance
of such permit [70.7]. This type of permit revision must be
treated as a permit renewal , i is subject to all the
requirements described today which address permit renewals.
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Finally, as permits which were processed in the
transition period are reviewed, EPA encourages reviewing
authorities to establish new fixed terms (e.g., 3, 4, and
5 year terms) in these permits that balance the future
workload. That is, the reviewing authority should define
new schedules i r renewal within reissued permits which take
advantage of the 5 year timeframe opportunity rather than
the 3 years required for transition.
H. Section 70.8 - Permit Review by EPA and Affected
States
(1) General
The requirements in section 505(a) with respect to the
States providing the Administrator notification and copies
of key documentation is discussed in (public notice
section). The basic process, spelled out in section 505(b),
is that the Administrator shall object in writing to the
issuance of any permit determined not to be in compliance
with the applicable requirements of the Act, including the
SIP. To minimize delay, the Act limits EPA's opportunity to
object to 45 days after receipt of a proposed permit. The
EPA need not formally approve a proposed permit. A
"proposed" permit for purposes of sections 505(a)(1) and
(b)(1) is one the State submits to the EPA after the public
notice period and after considering any public comments.
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The submittal of the proposed permit must also contain any
notice required in section 505(a)(B) describing why the
permitting authority failed to accept recommendations on the
proposed permit from any State whose air quality may be
affected and are contiguous to the State in which the
emissions originate or that is within 50 miles of the
source. If the State so chooses, the permit will
automatically issue at the end of the 45-day review period,
unless EPA has objec^d to its issuance. The objection must
be accompanied by a written Statement of the reasons for the
objection, and both must be provided to the applicant.
All permits must contain all provisions required by
Title V, such as monitoring, reporting, and compliance
certification requirements. Failure to include these
provisions is a basis for EPA veto. All permits involving
SIP-regulated sources must interpret, implement, and apply
the SIP in an e forceable manner to the specific source
permitted. For example, if the SIP fails to specify a test
method, the permitting authority must specify one in the
permit. Failure to properly apply a SIP to the particular
permitted source so that it is fully enforceable ±a a basis
for EPA veto.
If EPA does not object, any persor may petition th&
Administrator to do so within 60 days after the expiration
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of the 45-day review period [505(b)(2)]. The Administrator
then has 60 days within which to determine whether to grant
or deny the petition, and shall grant the petition if it
demonstrates that the permit is not in compliance with the
requirements of the Act, including those of the applicable
SIP. It should be noted that a petition does not postpone
the enforceability of a permit that has been issued. Denial
of such a petition is subject to judicial review under
section 307 of the Act. Regulations implementing this
process are set forth in section 70.8(d).
A timely EPA objection, unless withdrawn, effectively
serves as a veto, for the State permitting authority may not
issue the permit as a Part 70 permit unless it is revised to
address EPA's objection and resubmitted to EPA for approval
[505(b)(3) and (c)]. EPA proposes that once the Agency
approves the revised permit, in writing, the permit will
then be issued. Pursuant to section 505(c), if the
permitting authority fails to make the necessary changes and
submit the revised permit to EPA within 90 days of the
objection, EPA must issue the permit with changes, or deny
the permit. This action by EPA would be subject to judicial
review [V.D]. While the possible EPA objection to the
issuance of a Part 70 permit is being resolved, EPA stresses
that all the otherwise applicable requirements of the Act
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still apply except for the section 502(a) requirement to
obtain a Pa:_ 70 permit (assuming that the source has filed
a complete application and any required supplementary
material). EPA intends to use the Part 71 process
(discussed in section VI) in issuing any permit for which
the Agency becomes the permitting authority.
Section 505(b)(1) provides that EPA has a duty to
object to a permit when it "contains provisions that are
determined by the Administrator as not in compliance with
the applicable requirements of this Act." EPA views this
duty as a discretionary one, however, since it is predicated
on a determination by the Administrator of noncompliance.
That determination is discretionary. [cf. Sierra Club v.
Train, 557 F.2d 485 (5th Cir. 1977) holding that section 113
enforcement is discretionary despite parallel construction.]
In any case, any duty to object is not enforceable by
citizen suit. That is clear from the structure of the
statute, which provides in section 505(b)(2) a petition
process for citizens who wish EPA to veto a permit, and from
the legislative history, which shows that the petition
process is a replacement for the Senate bill's approach,
which would have imposed on the Administrator a non-
discretionary duty, enforceable under section 304, to object
to unlawful permits. Finally, a citizen suit would not lie
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under the applicable case law to compel a veto under section
505(b)(l), since no explicit statutory deadline is provided.
See cf. Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir.
1987) .
Even the petition process under section 505(b)(2)
leaves the Administrator with an element of discretion.
Although the Administrator must grant or deny any petition
within 60 days, he must object only "if the petitioner
demonstrates to the Administrator that the permit is not in
compliance with the requirements of this Act, including the
requirements of the applicable implementation plan." This
language plainly puts the burden of showing a violation on
the petitioner. It remains discretionary whether the
Administrator should object in cases where the record does
not clearly disclose failure to comply. The petitioner must
also raise objections "with reasonable specificity" during
the comment period before the state, or to demonstrate to
the Administrator in the petition to object that it was
impracticable to do so. EPA believes that Congress did not
intend for petitioners to be allowed to create an entirely
new record before the Administrator that the State has had
no opportunity to address. Accordingly, the Agency believes
that the requirement to raise issues "with reasonable
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specificity" places a burden on the petitioner, absent
unusual circumstances, to adduce before the State
the evidence that would support a finding of noncompliance
with the Act.
(2) Waiver of EPA Review
The statute provides two different mechanisms that
allow EPA to waive the notification requirements discussed
above. First, at the time of the approval of a State
program, EPA may waive the notification requirements for any
category of sources (including any class, type, or size
within the source category), except .nat EPA cannot waive
the requirement in the case of major sources [505(d)(1)].
The Agency will not waive its right of review of permits for
acid rain affected sources. Second, EPA may waive the
notification requirements on a nationwide basis, through the
promulgation of regulations applicable to all permitting
programs. The same restriction against waiving the
requirements in the case of major sources applies to this
option as well [505(d)(2)]. When EPA waives the
notification requirements by either of these means, the
Agency ordinarily will not perform the permit review
generally required by section 505(b).
The EPA is not at this time proposing any categories of
sources for national waivers from review. Comments are
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invited, however, with respect both to potential categories
for such a waiver and to the appropriate use of waivers at
the State level, and on means of implementing them, such as
through agreements with the States. Similarly, EPA seeks
information on the use of waivers on a State-specific basis
and the use of various mechanisms, such as audits and
agreements between EPA and the States regarding coordination
of activities, to efficiently implement such waivers or to
set priorities for EPA review of State permitting [V.A.].
The EPA also solicits comment on the potential use of
various review practices for quality assuring the permitting
process and carrying out the Administrator's
responsibilities under section 505. Although EPA wishes to
minimize administrative burdens, the Agency takes seriously
its responsibility for quality assuring permitting, for
which it shares enforcement responsibility.
Public comment is also solicited on the legal
availability and appropriateness of waivers of notification
for particular classes of sources, on a State-specific
basis, after approval of a permit program. Section
505(d)(l) provides that the Administrator may waive this
requirement "at the time of approval of a permit program
under this title.11 Although this clause could be read as
referring only to initial approval of the State program, it
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seems consistent with good oversight practice and the spirit
of Title V itself that such waivers could be granted through
EPA rulemaking whenever appropriate. Such practice would
not be inconsistent with any of the statutory safeguards
and, indeed, waivers may be more effectively tailored once a
State has established a track record and a working
relationship with the EPA Regional Office with respect to
permitting various types of sources.
(3) EPA Veto
The general framework for EPA's veto of State operating
permits is set forth above. The following are various
issues that may arise from the implementation of this
process.
(a) Inadequate Information Provided by Permitting
Authority
Although EPA's duty to object to permits that are
inconsistent with the requirements of the Act is clear, it
should be noted that EPA believes that it can also object to
the issuance of a permit where the materials submitted by
the State permitting authority to EPA do not provide enough
information to allow a meaningful EPA review of whether the
proposed permit is in compliance with the requirements of
the Act (including the SIP). Of course, EPA needs to work
with States to develop a clear understanding in advance as
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to the amount and type of information needed to exercise
reasonable Federal oversight. Although section 505 may not
expressly provide for objection to a permit on this ground,
EPA believes that not allowing the Agency to object under
these circumstances could severely hamper its oversight
role. Without adequate information, it is impossible to
determine whether a proposed permit conflicts with the
requirements of the Act. Given Congress1 clear intention
that EPA not allow permits conflicting with these
requirements to be issued, EPA believes that this form of
objection is reasonable and necessary [301].
When EPA objects to issuance of a proposed permit
because the State has not provided enough information, it
will accompany the objection with a statement of what
additional information is needed. The State would then be
responsible for forwarding the additional information to EPA
within 90 days. Once this needed information is supplied to
EPA, the Agency's 45-day review period will begin anew. If
the additional information is not supplied, EPA will deny
the permit or issue it with whatever changes are necessary
to ensure compliance with the Act. The EPA solicits comment
on this approach to obtaining adequate information and its
authority for so implementing it.
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(b) Failure of a State to Issue
The Act requires that a permitting authority issue or
deny a permit within 18 months of receipt of a complete
application. Further, the State is required to provide the
Administrator copies of proposed and final permits to be
issued. Where the permitting authority fails to provide
these permits to EPA due to failure to issue or deny within
the 18 month timeframe, this may be considered grounds for
an EPA objection. EPA would then request a proposed permit
from the State with any additional information needed. If
the permit is not received within 90 days, the Administrator
will issue the permit.
(c) Streamlining the Process Through Early Federal
Participation
Some States have expressed concern that EPA objections
could unnecessarily slow some permitting exercises. One
implementation approach that might allay this concern could
be early EPA participation in the State's permitting action.
For example, a State and EPA could agree that, for certain
permits or classes of permits, EPA would review draft permit
materials submitted to EPA even prior to State's release of
the draft proposed permit for public comment on permit
issuance. Alternatively, the Agency could require that
summary forms with certifications be filled out in order to
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prioritize the need for more extensive EPA involvement. The
EPA could indicate, either officially or informally, whether
it would object to any aspect of the proposed permit based
on the draft and/or summary form. This might prove to be an
effective way to enhance State and EPA cooperation on permit
issuance. Such procedures.might be formally established in
implementation agreements between EPA Regional Offices and
the States.
(d) Status of Proposed Permit If EPA Objects
If EPA objects to a proposed permit, the permit does
not issue. During this period of review and negotiation,
the previously issued permit and all applicable regulatory
requirements continue to apply, except where inconsistent
with State law or as provided in Part 71A for the acid rain
portions of a permit. For acid rain affected sources, if
the previously applicable permit has expired, the permit
application and compliance plan will be binding on the
source until the new permit is issued [408(d)(3)].
(e) EPA Action Upon Veto
Pursuant to section 505(c), if the permitting authority
fails to submit a revised permit meeting EPA's objection
within 90 days of the objection, the Administrator shall
issue or deny the permit. The EPA's issuance of permits
will be made pursuant to the Federal permitting program to
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be contained in Parts 71 and 124 [V]. This program will be
proposed at the same time that EPA takes final action on
today's proposal regarding State programs and will closely
parallel the permitting practice required for State
programs. Part 71 will contain all necessary provisions for
EPA to administer a State program where a State defaults,
although EPA may choose to make it effective only for
certain areas and/or sources in order to address areas of
concern.
(f) Public Petitions Regarding Decisions Not To Veto
Given the brevity of the EPA review period and the
complex nature of many permits, there will be occasions in
which EPA may not recognize that certain permit provisions
do not comply with the requirements of the Act. If this
happens, the statute provides an opportunity for citizens to
petition EPA to reconsider its decision not to object to
issuance of the permit. Within 60 days after expiration of
the 45-day EPA review period, any person may petition the
Administrator to object. This petition must be in writing,
and the petitioner must provide a copy to the State
permitting authority and to the permit applicant
[505(b)(2)].
The petition must specifically state why the petitioner
believes that the permit conflicts with applicable
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requirements of the Act and cite the particular provisions
alleged to be inconsistent. Moreover, section 505(b)(2)
provides that "[t]he petition shall be based only on
objections to the permit that were raised with reasonable
specificity during the public comment period provided by the
permitting agency (unless the petitioner demonstrates in the
petition to the Administrator that it was impracticable to
raise such objections within such period or unless the
grounds for such objections arose after such period)." This
section of the statute specifically provides that filing of
the petition does not postpone the effectiveness of the
permit. Thus, the new permit remains in full effect, and
the source may operate under its provisions pending EPA's
consideration of the petition. Sources should be aware,
however, that under these circumstances EPA may object to
the permit; upon such objection, particular provisions of
the permit may no longer shield the source from enforcement
of certain other requirements of the Act. In other words,
the source may become subject to revised or additional
requirements. It therefore may be advisable for sources to
await the outcome of the petition process before making
changes that are consistent with the recently issued, but
contested, permit.
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The Administrator is required to grant or deny such a
petition within 60 days after it is filed. If he grants the
petition, he will object to the permit as not being in
compliance with the requirements of the Act [505(b)(2)]. If
the permit has already been issued, "the Administrator shall
modify, terminate, or revoke such permit and the permitting
authority may thereafter only issue a revised permit in
accordance with paragraph (c)" [505(b)(3)]. In other
words, the permitting authority must follow the same
procedure as if EPA's objection had been made during the 45-
day review period. In accordance with c.he proposed policy
on reopening permits for cause, EPA is proposing not to
require a permit to be modified, terminated, or revoked
until the permitting authority has had an opportunity to act
expeditiously under its own authority.
In the event that the Administrator denies the
petition, the permit remains unaffected, as if no petition
had been filed. trials of petitions will be accompanied
with a statement of the reasons for this action.
I. Section 70.9 - Fee Determination and Certification
(1) Section 70.9(al - Permit Fees
This section establishes the requirement for a permit
fee program. This provision is designed to ensure the
permitting authority's ability to perform the necessary air
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quality permitting and associated management functions
entrusted to it. Through this provision, the Part 70
sources pay for the air quality permitting program.
The Act provides that the State program must ensure
that Part 70 sources pay fees sufficient to cover "all
reasonable (direct and indirect) costs required to develop
and administer the permit program requirements of this
title, including [the small business stationary source
technical assistance program] and including the reasonable
costs of [certain enumerated activities]." A State
demonstration must also include the development and
implementation costs of any local agency program
[502(b)(3)(A)].
The specifically enumerated costs include: (1)
reviewing and acting on permit applications, (2)
implementing and enforcing permit terms and conditions (not
including court or enforcement-action costs), (3) emissions
and ambient monitoring, (4) modeling, analyses, and
demonstrations; and (5) preparing inventories and tracking
emissions [502(b)(3)(A)(i)-(vi)].
The Act further provides that the fees "shall be
utilized solely to cover all reasonable (direct and
indirect) costs required to support the permit program"
[502(b)(3)(C)(iii)]. The EPA wishes to confirm that this
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restriction applies to State, as well as Federal, collection
of fee?. Although the .restriction is located in paragraph
(C) [which primarily addresses EPA-collection of fees] of
section 502(b), it references the general fee provisions
"under this subsection." The legislative history confirms
this interpretation. For example, the report of the Senate
Committee on Environment and Public Works provides that fees
shall be utilized to support the air pollution control
program of the State permitting authority." (emphasis
added).
Action 70.9(b) describes the criteria against which
the adequacy of any fee schedule submitted to EPA by a State
will be evaluated. Essentially, a fee schedule can be
judged to be adequate if it meets one or both of two tests.
A fee program is adequate if it -esults in the collection of
revenues sufficient to recover all the reasonable costs of
supporting the development and administration of the permit
program, including those itemized in section 502(b)(3)(A).
The alternative test for approval focuses on whether the
proposed fee program would result in the aggregate
collection of fees equal to or greater than an amount of $25
per ton per year (annually adjusted for CPI changes) for
each regulated pollutant that the subject sources are
permitted to emit.
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The critical issue associated with implementing the
first test to be resolved by this rulemaking is defining the
scope of program costs that can be recovered through fee
collection. EPA believes that the statutory provisions make
clear that permit fees must recoup direct "permit" costs,
including costs of developing the permit program, reviewing
permit applications, holding hearings, issuing new and
renewal permits, and conducting inspections and other
aspects of permit enforcement (except for enforcement
actions or court costs). This includes activities performed
by air pollution control agencies which do not issue permits
directly. For some sources, e.g., S02, these costs will
include the costs related to ambient monitoring near the
source, as well as source-specific modeling and attainment
demonstrations to the extent that the costs are incurred as
part of regulating the Part 70 sources.
EPA further believes that "indirect" permit program
costs include the costs arising from permitted sources for
SIP development (e.g., for VOC sources, the costs for area-
wide monitoring, modeling, development of attainment
demonstrations, and development of SIP regulations to be
codified into permits, minus the additional costs arising
from regulation of non-Part 70 sources). Indeed, each
source, at the option of the permitting authority, could be
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subjected to a permit process that occurs concurrently with
the SIP process and under which the applicable SIP
requirements and support analyses would be accomplished with
all costs directly borne by the source. However, defining
applicable requirements and gathering relevant data can be
viewed as more economical than requiring that Part 70
sources individually perform these functions to assure that
acceptable permits can be issued. In addition, "indirect"
permit program costs include the portion of overhead costs
attributable to the above specified activities, information
management activities to support and track permit
application, compliance certifications, and related data
entry.
Permit fees must also cover the costs to support
development of programs under which the permitting authority
assumes responsibility for administering regulations under
sections 111 or 112, to the extent those costs are related
to emissions from permitted sources. Permit fees may not be
used to recoup costs attributable to mobile or area sources
as defined in section 110 (e.g., the costs of inventorying
non-Part 70 sources, and the additional costs incurred as a
result of including mobile sources and non-Part 70 sources
in performing area-wide monitoring, modeling, and attainment
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demonstrations). Conversely, fee revenues collected from
non-Part 70 sources cannot be used to offset the costs of a
Part 70 permit program.
Defining "indirect" permit program costs to include SIP
development costs also makes sense from the standpoint of
parity between sources of different types of pollutants. As
noted above, permit fees cover the costs associated with
monitoring and modeling for an S02 source when S02 NAAQS
violations can be directly linked to that source's emissions
and such monitoring and modeling that are part of the permit
issuance or revision process. Although ozone NAAQS
violations generally result from area-wide emissions, not
the emissions of a single source, emissions from individual
sources contribute to the need for basin-wide monitoring,
modeling, and attainment demonstrations.
EPA interprets the legislative history as consistent
with EPA's position that permit fees must recoup not only
direct permit costs, but also the SIP development costs
arising from permitted sources. The Senate bill clearly
treated SIP development costs as part of the permit program
costs. Senate conferees emphasized that the Conference
Agreement required fees to cover a broad range of direct and
indirect permit program costs, including "the establishment
of air emission standards". EPA interprets this as a
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reference to establishing emission standards or limits for
permitted sources, which may be done through the SIP and
subsequently codified into permits. In addition, the Senate
conferees emphasized the primary role of the permit program
in implementing the other requirements of the Act, including
attainment of the NAAQS. .These statements indicate that the
"indirect" costs of the permit program include SIP
development costs. Although the Conference Agreement seemed
to narrow the requirements of the Senate bill, it appears
that the purpose of this was to assure that only
permitted-source related costs—not mobile source- or area
source-related costs—were covered by permit fees.
The Statements by the Committee and Conference members
are less detailed on the scope of permit fees. However, EPA
does not read them to be inconsistent with the Statements in
the Senate. As a result, EPA interprets the legislative
history to accord with its view that permit fees must recoup
the portion of SIP development costs attributable to
stationary sources.
The second option for fee schedule approval comes
directly from section 502(b)(3)(B) which provides that
M[t]he total amount of fees collected by the permitting
authority shall conform to the following requirements:...
The Administrator shall not approve a program as meeting the
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requirements of this paragraph unless the State demonstrates
that" the program will result in a collection, in the
aggregate, from sources subject to the requirement to obtain
a permit, of at least $25 per ton of regulated pollutant,
not including amounts of regulated pollutant emitted by any
source in excess of 4,000.tons per year of that regulated
pollutant. The Administrator may determine that an amount
less than $25 is acceptable if the Administrator
"determine[s] that such lower amount adequately reflects the
reasonable costs of the permit program." The latter option
is addressed in the first option for fee schedule approval
discussed above. A regulated pollutant is defined to
include VOC's, pollutants regulated under section 111 or
112, and each NAAQS pollutant [except for carbon monoxide].
Section 408(c)(4) provides that during the years 1995
through 1999, no fee can be required to be paid under
section 502(b)(3) or under section 110(a)(2)(L) with respect
to emissions from any unit which is an affected unit under
Phase I of the acid rain program. The Agency interprets
this provision to mean that EPA may not collect fees from
Phase I affected sources prior to January 1, 2000. States,
however, are not precluded by that provision from fee
collection at these facilities pursuant to other
requirements of the Act.
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EPA takes the position that these provisions intended
to establish a presumption that a fee program that collected
from all subject sources, in the aggregate, the $25 amount
on an annual basis would meet the requirements of covering
the costs of the permit program. Accordingly, if a State
submits a fee program that provides for collection of the
$25 amount, EPA will presume that the fee program meets the
Act's requirements, and will propose to approve it.
However, if public comment, or other information brought to
EPA's attention, reasonably suggests that the $25 amount is
not adequate to recoup the required costs, then EPA will
scrutinize the State's costs to determine whether the
$25 amount is adequate.
EPA believes this position is consistent with the Act
because of the very presence of the $25 minimum-amount
provisions. Congress could have simply required permit fees
to recoup permit program costs Without specifying a minimum
amount. The presence of the $25 minimum amount indicates
that Congress presumed that this amount would suffice to
recoup the costs. Indeed, several statements by Congressmen
found in the legislative history indicate that they viewed
the permit fee program as, in general, a $25/ton fee
[Congressional Record, March 5, 1990, S 2107, col. 2
(Statement of Sen. Chafee); Congressional Record,
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November 2, 1990, E 3674, lst-2d cols (Statement of Rep.
Bilirakis)].
(2) Section 70.9(c) - Program Flexibility
This section allows fees to be adjusted depending on
sources or pollutants. As mentioned, the $25 per ton figure
is to be used relative to the aggregate of all sources
subject to the permitting program. That is, the State may
differentiate among source categories and pollutants in
assessing the fees. Ultimately, the permitting authority
must be able to demonstrate that the total fees collected
are sufficient to support the permit program.
If the State program fails to provide an adequate fee
schedule, or does not implement its fee program properly,
EPA is authorized in section 502(b)(3)(C)(i) to assess an
amount appropriate to cover EPA's costs associated with
administering an EPA-promulgated permit program. The EPA
also solicits comment on whether the Agency may assess fees
to cover other costs such as the State costs in developing
and administering the permit program. The EPA also solicits
comment on whether, additionally, EPA may assess and return
to the State, a sum appropriate for the amount of effort the
State had expended in implementing the other air program
requirements.
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The EPA may undertake the action stated above
regardless of whether it or a State agency ultimately issues
the permit. Penalties and interest may be collected as
appropriate. The EPA must direct such assessed funds to
implement the permit program required under this title.
(3) Section 70.9fd) - Fee Demonstration
This section requires the State to provide a
demonstration that program costs will be covered.
Demonstration of the adequacy of permit fees in covering
program costs would be required in two cases. The first
case is where the fee amounts to less than $25 per ton per
year. As indicated above, the lesser fee would be approved
by EPA only if it can be shown that the revenues collected
with this fee adequately support the program. EPA believes
that States seeking to collect less than the $25 amour
persuasively demonstrate that a lesser amount will
adequately cover the required costs. To make this
demonstration, the States must subir t a detailed accounting
of the required costs and anticipated fee collections. EPA
believes that the Act's provisions establish a strong
presumption in favor of fees at least equivalent to $25/ton,
and that States seeking to collect less bear the burden of
demonstrating that less is nevertheless adequate.
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The regulations also presume that the State will base a
demonstration that it is meeting the cost per ton test on
the potential to emit of all the Part 70 sources in the
State. Relying on the sources' potential to emit
(considering emissions limits or the requirement to use
control equipment that are federally-enforceable) allows the
State to predict total fee revenue with some reliability.
The State can determine its sources' potential to emit by
examining their permits, and that potential will not vary as
much a source's actual emissions from year to year. Also,
relying on potential emissions creates an incentive for a
source to reduce its potential emissions, thereby aiding the
State in demonstrating attainment and maintenance of the
NAAQS under its SIP.
The regulations also provide that the State can use
another method for determining the total emissions, for
example the actual emissions of all Part 70 sources. The
State must demonstrate that this alternate method supports
the program consistently and that the State can accurately
determine the fee base. Using actual emissions to set fees
in this fashion creates an incentive for sources to reduce
actual emissions to reduce their fees. If the permitting
authority can address the difficulties of determining its
fee base and supporting its program, the regulations give
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the State the flexibility to incorporate such incentives
into its fee structure; The proposed definition of "actual
emissions" in section 70.2 generally tracks similar
definitions in EPA's new source review regulations. One
aspect of the definition is that it defines actual emissions
with reference to emissions during the 2-year period
preceding the relevant permitting date, or any 2-year period
that falls within 5 years of that date, "upon a satisfactory
determination that it is more representative of normal
source operation." In the context of the PSD program, EPA
is now exploring the option of allowing sources subject to
Title IV to use any 2-year period falling within the 5-year
period preceding the relevant date, without a showing
satisfactory to the permitting authority that 2-year period
is indeed more representative of the source's normal source
operation. The EPA solicits comment on using this
alternative, for at least affected sources under Title IV,
to determine actual emissions for purposes of calculating
fees under Title V.
The second case is where the fee varies among source
categories or pollutants. In this case, the State agency
must demonstrate that such variable fees result in the total
collection of a sum equal to or greater than that collected
when $25 per ton per year is charged for all source
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categories covered by the permit program. The EPA intends
to carefully scrutinize any justification for fees that
would generate less revenue in the aggregate than the
presumptive $25 per ton fee.
State programs must also provide for adequate personnel
and funding to administer the permit program. In the past,
inadequate resources have often prevented State agencies
from completely fulfilling their air quality management
responsibilities under the Act. This requirement is
designed to overcome that aspect of the resource problem.
(4) Legislative Authority
Appropriate legislative authority must exist for the
permitting authority to have the ability to assess and
collect fees. Many State agencies already have such
authority and require at least a nominal payment for the
processing of air permit applications. However, some States
do not collect permit fees and will need to obtain from
their legislatures the authority for the permit fee program.
Further, many States with permit fee programs may need
authority to substantially increase their fee structures.
After the appropriate authority has been established, a
requirement for program adequacy is the demonstration that
the fees collected will be retained to support the
permitting program. This should include, where applicable,
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provisions for providing funding to other air pollution
control agencies which perform air permit program activities
but do not issue permits directly, in reviewing permit
program plans, EPA will be looking for a system which tracks
the payment and disposition of fees. It is vital that the
permit fees not be diverted for some other use. However,
EPA would like to give the States as much flexibility as
possible in handling permit fee retention. For example, in
some States it may not be possible for the air agency to
administer the collection and distribution of the permit
fees. In this case, SPA would consider it acceptable for
the fees to be paid to a State general fund, rather than
directly in the air agency fund, provided all such funds are
assured to be returned to the air agency on an annual (or
similar period) basis. In any event, EPA believes that
per ically (e.g., every 1 to 2 years) a document
summarizing the collection and subsequent use of permit fees
should be provided to the Agency as well as made public.
(5) Permit Fee Revisions
In future years after the establishment of a permit fee
program, fee schedules may need to be modified due to either
inflation or to a substantial increase in program costs.
For example, a future NESHAP may be passed covering source
categories with large numbers of individually small sources
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in terms of how much of the regulated pollutant is emitted.
Monitoring the compliance of these sources may substantially
increase the resource demand on the State agency. For
programs relying on the $25 per ton presumptive norm, the
Amendments specifically require for recalculation of permit
fees each year after enactment, by a percentage that is tied
to the Consumer Price Index. However, the EPA is concerned
that the mechanism for modifying permit fees may not be in
place for these programs nor for States opting for their own
fee schedules. Of main concern is whether the State agency
has authority to modify permit fees or, alternately, must
the State legislature approve any revision. Accordingly,
EPA urges States to provide enabling legislation that gives
the agencies sufficient legal authority and flexibility to
manage their fee structures. The EPA solicits comments on
problems associated with providing State agencies with the
authority up front to revise permit fees and on what factors
should constrain future increases beyond those needed to
account for CPI changes. Specifically, EPA would like
information on the way permit fee revisions are currently
handled and whether revisions to the permit fees required
under this title should be handled in a similar fashion.
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(6) Transition Problems
State agencies will likely experience some transition
problems as they convert to the air quality management
program called for in the Act. With respect to the permit
fee requirement, EPA would like to accommodate existing
programs to the extent possible. Of particular concern are
the discontinuities potentially caused in States where the
State agency collects permit fees but a local agency carries
out most of the permitting responsibilities. The EPA
believes that an understanding on fee assessment and
collection needs to be reached at the State level before
program submission and that local agencies should be
compensated in a manner commensurate with their level of
permit activities. The EPA proposes that there does not
need to be one uniform State fee structure, particularly
where one would unnecessarily disrupt existing programs.
Further, EPA feels that consultation with State and local
agencies prior to plan submission will help to resolve
potential problems. G ren these concerns, comments are
solicited on how EPA input should be coordinated.
Other types of transition issues relate to the early
collection of fees. Section 502(b)(3)(A) requires that
"sources subject to the requirement to obtain a permit11 pay
an annual fe«, or the equivalent over some other period,
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sufficient to cover all reasonable (direct and indirect)
costs required to "develop and administer" the permit
program (emphasis added). The EPA- proposes to interpret
these provisions to authorize the imposition of fees on
sources that that State reasonably expects to be permit
applicants, and to impose those fees prior to the date the
source is required to submit an application. If these
permit fees were restricted to the date the program becomes
effective or the sources are required to submit an
applicatiion, potentially insurmountable transition problems
could exist for States trying to build up their capabilities
to allow for effective implementation of the program. Given
the clear mandate in Title V for the timely submittal of
State permit programs, EPA believes that States should be
allowed reasonable opportunities to collect fees which fund
the development of their required Part 70 program. One
approach might be to collect such fees during an early
identification or registration of subject sources. Other
reasonable strategies might involve fee payment by sources
subject to a State program which has received interim EPA
approval. The EPA solicits comment as to what approaches
are appropriate for agencies to collect fees prior to
program approval.
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(7) Small Source Fees
The Act requires the establishment of a technical and
environmental compliance program for small businesses. Part
of the goal of this program is to alleviate the financial
burden placed on small businesses by the new requirements
embodied in the Act. The EPA is promoting, and solicits
public comment on, establishing a relaxation in permit fees
for small businesses where necessary. This $25 per ton is
just an accounting technique, not a presumptive fee
requirement. The EPA invites comments on other adjustments
to the fee schedule for small sources that may be necessary.
J. Section 70.10 - Federal Oversight and Sanctions
The EPA periodically will audit State permit programs
to ensure that the programs are being administered in
accordance with EPA's regulations and the conditions under
which they were approved.
As in the case where the State fails to develop and
submit an approvable program, where EPA determines that a
permitting authority "is not administering and enforcing" a
permit program as required, the Agency may (and in some
cases, must) apply sanctions against the State [502(i)].
Such a determination ordinarily will follow an EPA audit of
the program. A consistent pattern or practice of failure by
the State to adequately carry out its program, however, may
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give rise to an EPA determination that the State is not
adequately administering and enforcing it, regardless of
whether a formal audit has been conducted recently. A
dispute over a single permit rarely will give rise to a
general finding of failure to carry out the program on the
part of the State. Moreover, the statute makes it clear
that only EPA may make the determination that a permitting
authority is failing to adequately administer or enforce the
program.
When EPA makes such a determination, it must notify the
permitting authority. For the first 18 months following
this notification, EPA may apply any of the sanctions
provided in section 179(b), but is not required to
[502(1)(1)]. After 18 months, if the permitting authority
has not corrected its program, EPA "shall apply the
sanctions under section 179(b) in the same manner and
subject to the same deadlines and other conditions as are
applicable in the case of a determination, disapproval, or
finding under section 179(a)" [502(1) (2)].
The two sanctions provided for in section 179(b) are
(1) a prohibition on the award of Federal highway funds or
the approval of any Federal highway project by the Secretary
of Transportation, other than for safety or mass transit,
and (2) a requirement that sources subject to new source
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review requirements of section 173 obtain emission offset
reductions in a ratio of at least two to one. Section
502(i)(3) further provides that EPA shall not apply the
section 179(b)(2) sanction (regarding the requirement to
obtain two to one offsets) in any area for failure to
administer and enforce the permit program unless the failure
"relates to an air pollutant for which such area has been
designated a nonattainment area." The EPA believes that
failures to carry out a permitting program rarely will be
pollutant-specific failures. If the failure does not relate
to only one pollutant, EPA has the authority to apply the
section 179(b)(2) offset sanction in any area that is
designated nonattainment under section 107 for at least one
pollutant.
As discussed above, the Act's legislative history on
the operating permits title show that EPA should take over
permitting of sources only as a last resort; the States are
far better equipped to issue operating permits. However,
section 502(i)(4) requires EPA to step in and take over
permitting if a State has not corrected the cited
deficiencies in its program within two years of the date
that EPA determined the permitting authority was not
adequately administering or enforcing its program. Thus,
EPA shall promulgate, administer, and enforce a Federal
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permitting program for a State six months after the date
that EPA is required to apply sanctions against the State.
Part 71 will contain all necessary provisions for EPA to
administer and enforce a Federal permitting program for a
State. EPA shall publish notice in the FEDERAL REGISTER
that it intends to administer and enforce such programs for
a State within six months after the date that EPA is
required to apply sanctions against the State. Whenever EPA
determines that the State has corrected the deficiencies in
its program, the Agency will cease administering the Federal
permits program and return permitting authority to the
State.
K. Section 70.11 - Requirements for Enforcement Authority
This section was added to promote greater consistency
with the NPOES program and to ensure that the basic
framework for effective enforcement of Title V would be in
place. This section contains specific requirements for
enforcement authority consistent with those contained in 40
CFR 123.27, with appropriate adjustments to conform to the
Clean Air Act.
V. Additional Topics of Discussion
A. Implementation Agreements Between State Agencies and
EPA
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(1) General
The operating permits program set forth in Title V is
designed to streamline the regulation of major sources by
incorporating all of the various Act requirements to which a
source is subject into a single document. The effective
implementation of this new program will undoubtedly require
a high level of cooperation and coordination between State
and/or local air pollution control agencies and EPA. It is,
therefore, important that directors of state and local air
control agencies establish an implementation agreement with
the appropriate EPA Regional Office which defines the manner
in which the permits program will be administered by the
permitting authority and reviewed by the EPA Regional
Office.
An implementation agreement should be administrative in
nature. It should establish the policies, responsibilities,
and procedures to be followed by the two parties in
administering Title V. It should define the relative
program responsibilities and priorities regarding such
topic* as reporting and data requirements, administrative
deadlines, enforcement of permits by the states, and
procedures for permit and program review. It should not be
used as a substitute for rulemaking (i.e., to make additions
or modifications to the permit regulation) or the SIP.
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Such an agreement should be developed during the period
that the States are developing their Title V programs, and
it should be submitted along with the State program
submittal. Submittal of the agreement at this time is
critical because it will require the permitting authority to
analyze the administrative aspects of the program in an
organized manner and show that such details have been
considered before development of program requirements and
agreed to before subsequent approval by EPA. Both the
permitting authority and EPA will benefit from this in the
long run. It is important to note that implementation
agreements with State and/or local control agencies will be
made publicly available in the EPA docket for this
regulatory action but will not be subject to the Federal
rulemaking process.
The concept for the implementation agreement stems from
the use of a memorandum of agreement (MOA) between State
agencies and EPA Regional Offices in the program under the
CWA. The NPDES program provided the basic blueprint for the
Title V legislation and has successfully used the MOA
concept to enhance program implementation. Experience shows
that the MOA has led to better State/Federal communications.
The implementation agreement identified in this section
can come in any format and does not have to take the
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specific form of an MOA. It need only cover the types of
issues described in the next section. The EPA solicits
comments on the need for a model MOA and its anticipated
usefulness.
The benefits associated with an implementation
agreement are numerous. First, as previously noted, it will
provide for better interagency communications. Second,
State and local permitting authorities should gain greater
certainty about EPA's oversight activities uno.r the
program. Third, an implementation agreement can omplement
section 105 grant agreements and conditions and c^n help
define how EPA Regional Offices will relate to States.
Fourth, the implementation agreement can be used to allow
for minor program changes (e.g. changes on a state permit
application form) in the future without rulemaking.
(2) Recommended TOPICS Within Implementation Agreement
The Administrator proposes for comment that a typical
implementation agreement may include provisions relating to
the following topics:
o Meetings between the Permitting Authority and EPA.
Both parties agree that either can call meetings
to review operating procedures, resolve problems,
or otherwise enhance implementation of the permit
program.
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o Legal Authority. The permitting authority agrees
to develop and maintain legal authority and
resources for effective program implementation.
o Accounting Report. The permitting authority
agrees to provide an accounting report to EPA
covering the timeframe specified by the agency
which demonstrates how revenues from permit fees
were spent by the agency and how they are used in
meeting the designated air agency's maintenance of
effort program requirements contained in
section 105.
o Required Submission of Documents. Both parties
agree to identify the kinds of documents and the
frequency with which they are to be submitted by
one party to the other. Examples include copies
of permits the State has decided to revise,
revoke, or terminate. The EPA agrees to keep the
State agency informed about new regulations,
reports, policies, and litigation settlements.
State agrees to notify contiguous States and other
States within 50 miles of all permit applications.
o Public File. The permitting authority agrees to
maintain an adequate public file (excluding
information entitled to protection from disclosure
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under section 114(c) of the Act) for each
permittee. The types of reports to be included in
each file are to be specified in the agreement.
Public information will be made available to any
party upon request for the applicable duplicating
fee.
o EPA Funding. The EPA may provide additional
section 105 funding support for the State program,
particularly during the program transition period,
where such funding is necessary and lilable
o Technical Support and Assistance. The EPA agrees
to prcvide technical support and assistance for
interpretation of national regulations, automated
transmission of data to EPA, and general technical
assistance in processing permits.
o Information Management. State permit information
systems should be compatible with the national
operating system with regard to a set of minimum
standard data elements, as well as standardized
program procedures, including timely submittal of
required data. These requirements are to be
defined in subsequent guidance.
o Priorities for Permit Processing. Both parties
agree to identify and implement priorities (e.g.
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sources subject to new source review) for permit
processing.
o Enforcement. The State agrees to maintain a
vigorous enforcement program, including:
quarterly reports of compliance information
to EPA;
annual reports of State enforcement
activity;
an automated compliance monitoring tracking
system;
timely review of compliance records,
monitoring reports, and inspection reports
and compliance certifications;
compatibility with and/or use of AIRS,
including information transfer procedures
conforming with national requirements to be
developed;
certification of reports by a responsible
corporate official;
appropriate enforcement actions taken in a
timely manner;
timely field inspections in accordance with
approved procedures;
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procedures for receiving and properly
considering information submitted by the
public about violations.
o Program Review. The EPA will conduct the
following activities to ensure that program
objectives are met:
timely review all information submitted by
the State agency;
meet with State and/or local officials
periodically to discuss program
implementation;
examine files and documents at the State
agency for selected facilities to deter ~ne
that permits are processed, issued, revised,
renewed, and enforced in a manner consistent
with Federal requirements;
review and certify periodically the legal
authority upon which the State's program is
based and notify EPA of findings;
hold public hearings on draft proposed
permits, as necessary;
review the State and/or local agency's public
participation policies and procedures as
needed;
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- respond promptly to proposed program changes.
o Program Changes. The permitting authority agrees
to take the following actions regarding changes in
its permitting program:
seek and adopt legislation (or other actions)
to maintain compliance with the permitting
program;
notify EPA of any proposed substantial change
in the program and transmit the text of any
such change;
notify the EPA within 10 days of any change
to the program and transmit the text of such
revisions.
B. Relationship of Permit Programs to SIP's
(1) General
Under the Act, the SIP remains the primary basis for
assuring attainment and maintenance of the NAAQS.
Requirements in the underlying SIP will form the basis for
the permit requirements. As previously mentioned, section
504(a) requires each permit issued under Title V to include,
among other things, "such . . . conditions as are necessary
to assure compliance with applicable requirements of this
Act, including the requirements of the applicable
implementation plan." Section 505, then, requires EPA to
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object to any permit that "contains provisions that are
determined by the Administrator as not in compliance with
the applicable requirements of this Act, including the
requirements of an applicable implementation plan."
In the previous discussion on applicable requirements
[III.E.], guidance for various situations was provided in
part for ensuring that the permit would implement and not
relax the applicable SIP requirements. Where the SIP is
clear in its requirements, the Part 70 permit must adopt
these limitations and reestablished them as permit
conditions to implement the SIP. Where the SIP is ambiguous
or silent, the permit provides a convenient means for
resolution of questions regarding how the SIP applies and is
to be enforced. Where the SIP is in the process of change,
the permit must not be drafted to insulate the source from
the applicability of necessary changes in SIP-call areas
vhich must be incorporated in a reasonable time. As
discussed earlier in this notice, if EPA interprets section
504(f)(l) not to provide for any shield from requirements
adopted after issuance of a permit to the source, then a
rulemaking to limit the shield from SIP corrections adopted
in SIP-call areas would be redundant and, therefore,
unnecessary.
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The provisions in section 504(a) indirectly limit the
flexibility offered by section 502(b)(10), which requires
the State programs to allow certain changes within a
permitted source without requiring a corresponding change to
the permit so long as, among other things, the "changes do
not exceed the emissions allowable under the permit (whether
expressed therein as a rate of emissions or in terms of
total emissions) . . . ." Since the permit must reflect the
SIP, if the SIP applies emissions rate limits or absolute
emissions caps to specific units within the permitted
source, and if the SIP does not authorize changes from those
unit-specific emissions limits or caps in the SIP without a
SIP revision, this "operational flexibility" provision
cannot be read to authorize such changes without such
corresponding SIP revisions. (Congress's deletion of the
Senate bill provisions authorizing permits to modify SIP's,
in conjunction with its addition of the section 504(a)
language requiring permits to reflect the SIP, suggest
strongly that Congress rejected the view that permits could
modify or otherwise override the applicable SIP.)
This limitation on the ability of permits to modify
SIP's creates a dilemma for EPA. On one hand, if a SIP sets
detailed unit-specific emissions limits that constrain the
ability of the source to choose alternatives without
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submitting them as SIP revisions, then the permit for a
source subject to those limits would have to reflect those
limits, and each time the source wanted to make a change to
its plant that would require a change to those limits, it
would first need to obtain a SIP revision and a permit
revision. This would essentially add a permit-revision step
to an otherwise cumbersome double-step process of obtaining
SIP revisions (revision by the State followed by EPA
approval of the revision). The resulting regulatory
gridlock would be inconsistent with one of the apparent
purposes of the permit program; to accomplish air quality
management with less reliance on the SIP revision process.
On the other hand, Title I of the Act prescribes
various minimum requirements that SIP's must meet to ensure
attainment and maintenance of the NAAQS. Any effort to
introduce into the SIP system enough flexibility to avoid
the regulatory gridlock described above will need to respect
those Title I requirements. Thus, the challenge EPA and the
States face in this regard is to explore creative ways of
implementing Title I so as to meet its requirements for SIPs
while minimizing the need for processing SIP revisions to
accommodate each and every permit and permit revision.
The starting point for meeting this challenge is
section H0(a) (2) (A) which requires that each SIP "include
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enforceable emission limitations, and other control
measures, means, or techniques (including economic
incentives such as fees, marketable permits, and auctions of
emissions rights), as well as, schedules and timetables for
compliance, as may be necessary or appropriate to meet the
applicable requirements of the Act."
This provision makes the required contents of SIPs
hinge on what is "necessary or appropriate" to meet the
applicable requirements. Thus, any effort to explore the
option of introducing flexibility into SIPs must focus on
the other requirements for SIPs in Title I and elsewhere in
the Act.4 For example, SIPs for ozone nonattainment areas
must include certain requirements concerning "reasonably
available control technology" [182(a)(2)(A) and (b)]. For
all but marginal ozone nonattainment areas, the SIP must be
revised to provide for certain prescribed amounts of
emissions reduction [182(b)(l) and (c)(2)(B)], as well as
emissions reductions necessary to provide for timely
attainment of the ozone NAAQS [182(b)(l) and (c)(2)(A)].
The SIP's for PM10 nonattainment areas, too, also must
include both technology-based and attainment-based
provisions [189(a) and (b)]. Under section 110(k) and (1),
4Both Titles II and V contain some SIP-submittal requirements. See, e.g..
sections 211(m) and 507.
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EPA has the responsibility for ensuring that each plan meets
these requirements.
EPA is now exploring the extent to which these
requirements might be implemented through a combination of
SIP and permit requirements, rather than by requiring the
SIP's to include each and every emission limitation directly
applicable to sources. This will require a closer scrutiny
of each of the relevant Title I requirements and the Agency
is only now beginning that analysis. No decision on those
issues is needed, however, for purposes of today's proposal.
Rather, for now, EPA seeks to open a dialogue on the
opportunities for avoiding SIP-permit duplication and
minimizing the use of the cumbersome SIP-revision process.
For illustration, the remainder of this section
discusses one example of when States might issue permits
that depart from the SIP without securing advance EPA
approval of those permits as case-by-case SIP revisions —
namely, the case of permits that establish new, more
restrictive requirements on a subject source. Sections 116
and 506(a) make it clear that States may go beyond those
requirements currently required by the Act (including the
SIP) when issuing a permit. For example, some States may
include enforceable emission limits in their permit program
derived from State control programs that are not included in
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any rule that has been approved as part of the SIP or
derived from an air quality initiative to gain needed
reductions from the permit program- The State will probably
want to rely on many of these new tighter limits established
in the permit program to demonstrate attainment and
maintenance of the NAAQS. Another possible reason for
incorporation of more restrictive permit limits into the SIP
may be to ensure permanence of their enforceable limits.
Clearly, the tighter restrictions within these permits are
federally-enforceable and can be relied upon by the SIP
demonstration once incorporated into the SIP. Since SIP
demonstrations must extend beyond the 5 year maximum fixed
life of permits, the SIP itself may ultimately need to
contain the new permit limits. That is, the SIP
demonstration cannot depend for the longer term on more
stringent permit restrictions which could be relaxed to the
currently applicable SIP requirement and/or expire at the
end of the fixed term identified in the permit (not to
exceed 5 years). As explained above, the EPA has proposed
that the latter not be allowed to occur. Under that
proposal, the State's law would have to provide that the
terms of the permit would remain enforceable, even after the
fixed term of the permit expires, provided that the source
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has filed a timely and complete application for permit
renewal.
The question then becomes how -to incorporate the effect
of these permits into the SIP's attainment demonstration
without creating even a greater potential jr regulatory
gridlock similar to that mentioned previously. The EPA
believes that the gridlock problem can in significant part
be minimized while still addressed by relying upon the SIP
revision process. First, the Agency believes that t' e
process for inserting new limits established within permits
into the SIP need only occur periodically and not for each
perrit upon its issuance. The envisioned process ould be a
relatively straightforward incorporation of the new permit
restrictions into the SIP as new applicable requirements
[III.H.] that all future versions of the permit must meet.
In addition, to the extent possible, EPA would utilize the
SIP processing reforms outlined in 54 FR 2214 on Jo.mary 19,
1989. This process would add only the time needed to
accomplish one SIP revision addressing the permits of
several sources and thus effectively preserve most of the
added air quality management efficiency accomplished through
the permit process. In addition, the State, presumably at
the same time, would update its SIP demonstration under
Title I based on the reactions and/or clarifications it has
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implemented using Title V permits. The EPA solicits comment
on this approach for using permits to complement the
existing SIP program.
Alternatively, EPA may be able to approve into the
relevant SIP's provisions that, in advance of permit
issuance, authorize the States to adopt changes that,
without further EPA SIP-revision approval, tighten the SIP.
If EPA approved such rules into a SIP, permit tightenings
would accord with the SIP, and hence would satisfy section
504(a) without the need for EPA to approve each such
tightening separately as a SIP revision. (As previously
discussed, without such rules, EPA might need to approve
each tightening as a SIP revision to the extent that the
State opted to rely upon it in demonstrating attainment and
maintenance with the applicable NAAQS.) Beyond that, the
Agency takes comment on the possibility of approving into
the SIP a provision which would ensure an aggregate effect
from tightenings accomplished within the permit program,
provided that no aspect of the underlying SIP would be
relaxed. The provision would necessarily contain tracking
requirements to assess the progress achieved, periodic and
defined updates of the demonstration to verify results, and
other safeguards as needed to guide EPA when to use its veto
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authority on an individual permit basis. The EPA solicits
comment on use of such a generic permits provision.
The EPA solicits comment on these and any other options
for streamlining SIP's so as to minimize the need for SIP
revisions to accommodate permits and permit revisions.
(2) Other SIP/Permit Concerns
(a) SIP Calls
Where a State is subject to a SIP call, it will have to
coordinate carefully its operating permit program with its
obligation to meet the SIP call. Operating permits in these
areas may not shield sources from changes in the SIP during
the permit term or the pendency of any procedure to reopen
the permit. Section 504(f) states that compliance with a
permit issued in accordance with Title V, unless limited by
EPA rulemaking, may at the discretion of the reviewing
authority also represent compliance with other applicable
requirements, subject to certain limitations. In a previous
discussion on how broadly the permit shield might apply, one
interpretation would generally protect a source at the
discretion of the permitting authority from new requirements
during the term of the permit, unless the permit would be
reopened. Under this interpretation, EPA is today proposing
that the "permit shield" not be available for any portions
of any permit reflecting provisions of a SIP that are the
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subject of a current EPA finding of substantial SIP
inadequacy where EPA has not finally approved corrections to
the deficient SIP provisions. Thus, any rule developed by
the State or promulgated by EPA into the deficient SIP would
be enforceable on the source as of the effective compliance
date prescribed in the new rule.
(b) Consolidated Actions
A State may choose to consolidate actions on permits
and SIP's in some situations. In the case described
previously, where a new SIP provision is promulgated during
the first 2 years of a 5 year permit, the State may choose
to process the reopening of the applicable permits along
with the SIP revision to meet its obligation under section
502(b)(9). In the less likely case where the State is
proposing to relax the SIP, the State may choose to reopen
the applicable permits along with the SIP relaxation,
specifying that the new relaxed permit limit is effective
upon EPA's approval of the relaxation as a SIP revision. In
both cases, States may be able to consolidate public
participation procedures to save time and administrative
resources.
(c) Earlv Reductions
A State may choose to impose emission limits on
unregulated sources in permits before the Act or SIP require
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a specific level of reduction from the source category. For
example, a State may be developing a new SIP rule in
response to an EPA CTG designed to achieve a 90 percent
reduction in emissions from a source category. Before
Federal approval of that rule, the State permits a source in
the category that requires a 70 percent reduction. Such
"early" reductions pose a difficult policy question. The
EPA does not want to discourage States form reducing
emissions beyond the Federal minima, yet EPA does not want
States to give sources weaker permit limits than will
ultimately be required which cause near term permit
adjustments and confusion as to what is enforceable. As
discussed for the case of SIP call areas under a broad
interpretation of how the permit shield applies, there would
again be no permit shield insulating the permittee from new
requirements. The EPA also expects that the permit will
have to be reopened under section 502(b)(9) to impose the
new limits directly on the source if the new requirement
becomes applicable before the last 3 years of the permit
term. Where this mechanism fails, EPA will consider
reopening the permit for cause under section 502(b)(5)(D) if
the permit would shield the source from new Act or SIP
requirements.
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C. Implications To Acid Rain Program
Title IV mandates a two-phased acid rain control
program which will be implemented through operating permits.
The acid rain title (Title IV) sets forth permitting
requirements supplemental to the requirements of Title V
addressed by today's proposal. Where discrepancies exist
between requirements under Title V and requirements under
Title IV, the acid rain requirements supersede those of
Title V [506(b)]. Acid rain-specific permit content
requirements must be included in operating permits under
both phases. The permitting process will be different for
Phase I and Phase II. Section 407 provides that Phase I of
the acid rain program (1995 through the end of 1999) be
implemented entirely through operating permits issued by the
Administrator. Phase II (beginning in 2000) will be
implemented by operating permits issued by States with
federally-approved permit programs, or by EPA in the event a
State defaults. Phase II permitting will be, thus, in
accordance with the process established by the rules
proposed today, as supplemented by acid rain-specific
content regulations.
Today's proposal does not address specific supplemental
permitting requirements for acid rain, provided for in
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Title IV. Those requirements will be addressed in a
separate rulemaking, with final rule promulgation required
18 months after enactment. The acid rain permit regulations
will include a description of the relationship of the acid
rain program to other programs incorporated in the permits,
necessary definitions, applicability requirements, and
necessary permit elements not included in the rule proposed
today. These will include: (1) acid rain-specific
requirements for permits and compliance planning, including
requirements for affected sources relying on one or more
alternative compliance methods authorized by the statute
(e.g., extensions, substitutions, banking, pooling,
purchasing of allowances at sale or auction, energy
conservation or renewable energy, repowering, etc.),
(2) compliance certification and reporting requirements,
(3) requirements for affected source-designated
representatives, and (4) excess emission offset planning and
fee requirements.
Rules for Federal acid rain permitting during Phase I,
and in the event of State defaults during Phase II, will be
published at 40 CFR Part 71. In addition, acid rain permit
content requirements, which must be included in permits
issued by States with approved programs, will be proposed at
that time, and will be added to (or incorporated by
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reference in) the Part 70 rules proposed here. Public
comment is invited at this time regarding the impact of this
general permit program rulemaking on the acid rain permit
program. Public comment in response to the acid rain
rulemaking proposal will, however, only be accepted with
regard to the provisions proposed at that time. Comments
will not be considered at that time reopening matters
addressed by this rulemaking.
D. Judicial Review
The 1990 Act amendments and the regulations proposed
today provide an opportunity for judicial review of State
and certain Federal final actions on a proposed permit.
Generally, a final State action prior to submitting a
proposed permit to EPA is reviewable in State court. An EPA
issuance or denial of a permit, or an EPA denial of a
petition to object to a permit, would be reviewable in the
appropriate Federal court of appeals for the circuit where
the State is located.
(1) Review of State Action
Section 502(b)(6) requires that a State operating
permit program provide "an opportunity for judicial review
in State court of the final permit action by the applicant,
any person who participated in the public comment process,
and any other person who could obtain judicial review of
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that action under applicable law." This requirement for
State program approval is repeated in section 70.4. A State
must make a showing, through the submission of copies of
State statutes or regulations, that such an opportunity for
judicial review of the final State action on the permit is
available in State court. This opportunity will not be
available until after the permit has ben issued (i.e., after
the end of the EPA review period) or after it has been
denied by the State (in which case there will not be any EPA
review).
State law will govern the effect a petition for
judicial review of the State's final action on the proposed
permit has on the action. For example, nothing in the Act
or the regulations proposed today would prevent a state
court from staying the effect of the State action in
approving or disapproving the permit. States may also
require that petitioners go through State Administrative
appeals procedures before they may petition for judicial
review in State court.
One of the primary goals behind Title V was to have
greater certainty for sources and State and Federal
enforcement personnel as to what requirements under the Act
apply to a particular source. In order to achieve that
certainty, the terms of permits should not be subject to
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challenge in enforcement proceedings. Section 307 clearly
establishes this rule for circumstances in which EPA is the
implementing authority. With this- goal in mind, EPA
solicits comment on whether permitting authorities should,
as a minimum program element, be required to provide,
through rule, legislation, or permit term, a comparable
exclusive, time-related route for judicial review of
permits. After this judicial review opportunity passes, no
one, including the source, could challenge a permit.
Permitting authorities would be granted flexibility
regarding the length and structure of this review period.
Sources would, in any case, specifically be preluded from
challenging the requirements and conditions of their permits
in State or Federal civil and criminal enforcement actions.
Section 502(b)(6) requires all approvable programs to
provide "an opportunity for judicial review in State court
of the final permit action by the applicant, any person who
participated in the public comment process, and any other
person who could obtain judicial review of that action under
appliacble law." Thus, EPA would, through this rule, only
add that this mandated State judicial review process would
be the exclusive means for challenging a permit.
This would have advantages for the permittee, the
permitting authority, and EPA. The advantages for
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permittees would be the added certainty and stability of
their permit gained by having their permit no longer subject
to challenge. Enforcement at the State and Federal level
would benefit significantly. Currently, many enforcement
actions are seriously hindered by disputes with sources over
which Act requirements apply. If the permit could not be
challenged in enforcement actions, these disputes would no
longer arise.
EPA is particularly interested in comments from
potential permitting authorities on whether it is advisable
to require States to limit the time for challenging terms of
operating permits and what obstacles they would encounter in
implementing such a requirement.
(2) Review of EPA Action
Also subject to judicial review are EPA's final actions
in (1) issuing or denying a permit where, following an EPA
objection to a proposed permit, the State fails to submit a
revised, acceptable permit, and (2) denying a petition to
object to a proposed permit. Where EPA objects to issuance
of a proposed permit under section 505(b) because provisions
are not in compliance w*ch applicable requirements of the
Act, and then must actually issue or deny the permit itself,
that latter action is subject to a judicial review under
section 307(b) in the appropriate federal -urt of appeals.
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The appropriate court will be the circuit in which the State
is located. Section 505(c) expressly States that "no
objection [by EPA] shall be subject to judicial review until
the Administrator takes final action to issue or deny a
permit under this subsection11 following the permitting
authority's failure to submit a permit revised to meet the
objection. Thus, a petition for review of EPA's action may
not be filed until that time; if one were filed before then,
the court would lack subject matter jurisdiction.
The above-quoted language also makes clear that, where
EPA objects to issuance of a permit, and the permitting
authority revises the permit to address EPA's comments,
EPA's objection is not subject to judicial review.
Otherwise, Congress would have specified other circumstances
when an EPA objection would be subject to judicial review.
Where the State revises the permit, therefore, the
finally-issued permit will be subject to judicial review
only in State court. Where a petition for review of EPA's
issuance or denial of a permit is filed in the Federal court
of appeals, the judicial record shall constitute all
materials regarding the permit submitted to EPA and any
other materials that the Agency relied upon in objecting to
the permit forwarded by the State, as well as any materials
relied upon in issuing or denying the permit.
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Under section 505(b)(2), a person may under certain
circumstances petition the Administrator to object to
issuance of a permit if the Agency has failed to object to
its issuance during the 45 day review period specified in
section 505(b)(l). If the Administrator approves the
petition, that action is not a final action subject to
judicial review. Rather, as described above, only issuance
or denial of the permit by EPA would be subject to judicial
review.
A final decision by the Administrator to deny tha
petition is subject to judicial review, however. This
opportunity for review is expressly granted by
section 505(b)(2). Such review shall be under the
conditions specified in section 307(b). A petition for
review of the petition denial therefore must be filed within
60 ays of the denial, in the Federal court of appeals for
the circuit in which the State is located. The record for
judicial review of this final decision shall constitute the
petition submitted to the Administrator, all materials
submitted by the State to EPA for review of the permit, and
any other materials relied upon by EPA in denying the
petition. When EPA's denial of a petition is challenged in
court, the already issued permit, of course, remains in
effect. The Agency is proposing to require, as a criterion
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for approval of the State operating permit program, that
each State have a provision in their administrative
procedures act placing a bar on when permits or conditions
of permits may be challenged after issuance. This bar would
disallow challenges to permit conditions after a specified
period of time, such as 30 days. The purpose of the
provision is to ensure that permittees do not attempt to
escape liability for violations of permit conditions by
challenging those conditions after they are in violation or
after the State or EPA attempts to take an enforcement
action. To provide States with flexibility, the Agency is
proposing to allow time bars on permit challenges of up to
four months.
E. Implications For Title III
Title III includes a list of 189 hazardous air
pollutants some sources of which will be subject to
emissions standards under section 112. The EPA must publish
a list of source categories or subcategories of major
sources that emit these pollutants within 1 year after
enactment. The EPA then must issue maximum achievable
control technology (MACT) standards for each listed source
category or subcategory according to a prescribed regulatory
schedule. For example, standards for forty categories must
be set within 2 years of enactment. The standards for new
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sources are to be based on the maximum emissions reductions
achieved on the best controlled similar source, while the
standards for existing sources must, in general, be at least
as stringent as the average of the best controlled
12 percent of the sources in the category. Companies that
accomplish early reductions of emissions receive a 6-year
compliance extension from meeting the MACT requirements, if
they reduce their annual emissions of listed hazardous air
pollutants by 90 percent over a given baseline (95 percent
for particulate pollutants) subject to certain criteria.
All sources subject to section 112 must obtain a permit
issued pursuant to a Title V permit program.
(1) Applicability
The proposed Part 70 program would implement for
subject sources existing section 112 standards as well as
future section 112 standards requiring the use of MACT,
generally available control technology (GACT), any
technologies to reduce unreasonable residual risk, anc any
accidental release requirements mandated under section
112(r). In the development of MACT standards, EPA intends
to develop model permit conditions as guides to the
implementation of these standards through permitting. All
major sources as defined in section 112, ^nd any other
source subject to standards under section 112 (unless
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exempted through rulemaking by the Administrator) are
subject to the Part 70 permit program. "Major source" is
defined by Title III as any stationary source (or group of
stationary sources) located within a contiguous area, and
under common control, that has the potential to emit, after
considering controls, of 10 tpy or more of any hazardous air
pollutant (defined initially as a list of 189 which is
subject to change), or 25 tpy or more of any combination of
these pollutants. The Administrator may also establish a
lesser quantity for a major source on the basis of potency
of the air pollutant, persistence, potential for
bioaccumulation, other characteristics of the air pollutant,
or other relevant factors.
As discussed under section 70.3, the Part 70 permitting
process applies to all regulated emissions units on the
premises of a "major" source. In addition, the Part 70
permit process applies to "area" sources (as defined in
section 110) which have one or more aspects of its plant
site subject to Title III unless exempted by rulemaking.
Once affected by the permitting process, compliance with all
applicable requirements of the Act, including those
contained in the SIP and Title III, must be assured within
each Part 70 permit. In addition/ where there is no
applicable Title III standard to implement, Part 70 permits
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must still estimate hazardous air pollutant emissions at
"major sources" and impose any applicable control
requirements described in sections 112(g) or 112(j).
(2) Section 112fl) Programs
Section 112(1) outlines a program for State
implementation of Title III. A State may develop and submit
to the EPA a program for the implementation and enforcement
(including a review of enforcement delegations previously
granted) of emissions standards and other requirements for
air pollutants subject to Title III, including requirements
for the prevention and mitigation of accidental releases
pursuant to section 112(r). These programs would be similar
to the existing programs used by States to enforce existing
section 112 standards and the program envisioned by Title V.
Such a program may provide for partial or complete
delegation of the Administrator's authorities and
responsibilities to implement and enforce emissions
standards (provided they would be no less stringent than
those promulgated by EPA) and prevention requirements. The
program should clarify the process by which delegation of
authority is accomplished and whether it must be repeated
for each new standard that is promulgated.
The EPA is required by section 112 (1)(2) to publish
guidance within 12 months of enactment which, in part,
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should aid States in developing their programs. Section
112(1) (5) states that the EPA shall disapprove the State's
program if:
(a) the authorities are inadequate to assure
compliance by all sources within the State with each
applicable standard, regulation, or requirement established
by the Administrator under section 112;
(b) adequate authority does not exist, or adequate
resources are not available to implement the program;
(c) the schedule for implementing the program and
assuring compliance by affected sources is not sufficiently
expeditious; or
(d) the program is otherwise not in compliance with
the guidance issued by the EPA, or is not likely to satisfy,
in whole or in part, the objectives of the Act.
The EPA proposes that the procedural requirements in
section 112(1) to review and approve/disapprove state
programs will be met by the promulgation of Part 70. The
requirements for an adequate Part 70 submittal [III.B.,
IV.D.] contain equivalent approval criteria which are
substantially the same as those contained in section
112(1)(5). Part 70 also contains several additional and
more specific requirements that assure implementation of all
Act requirements, including MACT, applicable to subject
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sources through a permit program. The EPA also believes
that State efforts to develop and implement a Title V permit
program should not be diluted by encouraging the development
of separate but similar programs to implement just
Title III.
Where section 112(1) identifies additional
opportunities for program requirements [such as those
relating to enforcement of MACT or GACT requirements at non-
permitted sources or the handling or storing any substance
listed pursuant to section 112(r)], States are free to
submit these as provisions within their Title V permit
programs. Implementation of these provisions would then be
a cost appropriate for recovery from the required fee
schedule [IV.I.]. Accordingly, EPA solicits comment on
today's proposal to consolidate section 112(1) programs with
Title V permit programs.
(3) Statement of Adequate Legal Authority
The Part 70 submittal must contain a legal opinion from
the State's Attorney General affirming the adequacy of
existing legal authority to implement and enforce the
program. With respect to Title III, the enabling legal
authority should be adequate to accept delegation of
authority to implement and enforce new MACT standards in a
timely way. In the case where a State cannot immediately
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accept implementation responsibilities upon promulgation of
a new MACT standard, then the impact of any delay associated
with State implementation should not be significant.
Moreover, any Part 70 permits issued to affected sources
during the time before the State can accept implementation
responsibility for a given standard should be issued in a
manner which does not interfere with Title III enforcement.
One possibility would be for the State to disallow use of
the section 504(f) "permit shield" in such circumstances.
The statement of adequate legal authority must also
confirm that the State has the ability to implement sections
112(g) and 112 (j). In the case of section 112(g), States
acting as the Part 70 permitting authority must be able to
develop and enforce a case-by-case determination of MACT,
after the effective date of the permit program, on new,
reconstructed, or modified sources where no applicable
emissions limitations have been established by the EPA.
These case-by-case MACT determinations must be consistent
with EPA guidance due for publication not later than 18
months after the date of enactment.
Section 112(j) requires that in the event EPA fails to
issue a standard for a major source category or subcategory
within IS months of the scheduled promulgation date for the
standard, a permit must be issued that contains emissions
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limitations equivalent to the limitation that would have
applied had the emissions standard been issued on time.
Under section 112(j), the State must have adequate authority
after the effective date of the permit program (but not
prior to 42 months after the date of enactment) to develop
and enforce these case-by-case determinations of MACT.
(4) Alternative Emissions Limitations for Earlv
Reductions
Section 112(i)(5) provides an extension for existing
sources to comply with otherwise applicable standards for
hazardous air pollutants provided certain criteria
concerning early reductions are met. This subsection
requires that the Administrator or a State acting pursuant
to a Title V permit program issue a permit allowing an
existing source (for which the owner or operator
demonstrates that the source has achieved a reduction of
90 percent or more in emissions of hazardous air pollutants,
95 percent in the case of particulate hazardous pollutants,
from the source) to meet an alternative emissions limitation
reflecting such reduction in lieu of meeting a standard
under section 112(d). This extension would apply for a
period of 6 years from the compliance date for the otherwise
applicable standard, provided that the reduction occurs
before the standard is proposed. The one exception is
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specified in section 112 (i) (5) (B) wherein existing sources
that make a federally-enforceable commitment prior to
proposal to achieve the reductions, can have until January
1, 1994 to achieve the reduction. EPA is issuing guidance
for determining when reductions are sufficient and
verifiable.
Under this guidance, a source owner or operator wishing
to qualify for a hazardous air pollutant standard compliance
extension under the early reduction program must submit a
permit application containing a demonstration that
sufficient reductions have been achieved. The permitting
authority would evaluate and either approve or deny the
early reduction demonstration, normally as part of the
permit review and issuance process. In most cases if a
source is denied a compliance extension, the source will
have to meet the applicable hazardous air pollutant standard
within the normal compliance period specified in the
standard. A problem would arise when a source which has
applied for an extension receives word that the early
reduction demonstration has been denied, and the denial
comes only a short time before, or even after, the normal
compliance deadline of the applicable hazardous air
pollutant standard. Under this scenario, the source would
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not have adequate time to install appropriate controls to
meet the standard.
Sources submitting complete pe.rmit applications to
States may not be issued permits for as long as three years
after the date of initial State program approval or for 18
months in all other instances. Review times this long can
create problems for sources seeking such extensions.
An illustration of the potential problem can be made
using the upcoming standard for ethylene oxide sterilizers.
The EPA intends to promulgate a hazardous air pollutant
standard under section 112(d) by April of 1993 for
sterilizing facilities using ethylene oxide. The compliance
period for this standard likely will range up to 24 months,
with a subsequent final compliance date of April, 1995.
Under the early reduction program, a sterilizer source will
have until December 31, 1993 to achieve reductions and
qualify for a compliance extension. The source must submit
a permit application demonstrating the reduction by
March 31, 1994, which leaves approximately one year from the
time the source applies for the permit to the time the
source may potentially have to comply with the applicable
hazardous air pollutant standard. Clearly, if the State
takes 18 months (until September 30, 1995) to review the
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application and then denies the compliance extension, the
source would already be in violation of the standard.
Therefore, for permit applications involving early
reduction demonstrations according to section 112(i)(5) of
the Act, it is proposed that the permitting authority be
required to: (1) notify the source within 30 days of
receipt of the application that the information needed to
properly evaluate the early reduction demonstration is
complete or incomplete; and (2) notify the source within
6 months of receipt of the complete application that the
early reduction demonstration is approved or denied.
The EPA proposes a shortened permit review period for
this special situation under authority provided in section
301 of the Act. The Agency urges permitting authorities to
be sensitive to the need to propose this change in the
permit review period to ensure effective implementation of
Title III without placing sources in undue jeopardy of
violating a hazardous air pollutant standard. The early
reduction provisions in Title III offer a significant
opportunity to achieve rapid improvements in air quality
across the country. The Agency takes comment on this
proposed position.
The Part 70 permit process, where available, is the
intended implementation mechanism for granting all
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qualifying sources the extension for meeting otherwise
applicable MACT standards including those referred to in the
special case above. Questions arise as to how this process
will occur in the time period before the effective date of a
Part 70 State permit program. In the subsequent discussion
of the Part 71 program [VI.], the process is outlined for
EPA to issue Title V permits, including those for MACT
extensions.
The EPA believes that actions required of sources
before the Part 71 regulations can be promulgated (i.e.,
approximately 18 months after enactment) need not be
incorporated into a permit before these regulations are in
place. Instead, the Act allows the source to develop a
federally-enforceable commitment which would be submitted to
the appropriate EPA Regional Offices for review. If
accepted a. i put in force, the federally-enforceable
commitment registers the source's intent to participate in
the early reduction program. When Part 71 regulations
become effective, and after the source has achieved . e
required reductions, the source would submit a complete
permit application, including the early reduction
demonstration.
The EPA intends to delec te the technical and
administrative responsibility rfhere possible for developing
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enforceable agreements or Part 71 permits (as applicable) to
States who request such authority prior to the approval of
their Part 70 programs. The EPA solicits comments on how
this approach for accomplishing early implementation of the
section 112 (i)(5) requirement can be accomplished.
F. Information Management Support
The EPA acknowledges the importance of an integrated
information management approach for the development and
implementation of programs mandated by the Act Amendments of
1990. As partners in implementing the Act, it is recognized
that State and local agencies have data needs that may, in
some cases, be quite different from the Agency's. It is the
Agency's intent to support an integrated information
management approach that acknowledges individual needs and
existing infra structure (including forms), yet enables EPA
to address its national responsibilities. Accordingly, the
information management activities associated with meeting
the Act's requirements must seek to fulfill both national
and individual program needs. In addition, they should be
guided by a template that promotes compatibility with, if
not direct use of AIRS, which is the Agency's principal data
system for implementing the Act.
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To accomplish this:
o Standard data elements needed for complete
application will be identified to meet basic
program needs
o Standard information management procedures for
program implementation and administration will be
defined.
o Use of implementation agreements, supported by
appropriate guidance will be encouraged to
identify appropriate information reporting
requirements.
Nationally consistent information management is
necessary to ensure the effective functioning of the
allowance trading market under the acid rain program. In a
separate rulemaking, the Agency will propose application
requirement and forms to be used by all affected sources
under the acid rain program. As a condition of approval of
State operating permit programs, permitting authorities will
be expected to use these forms.
The Agency solicits comments on how best to implement
these objectives for data collection and management.
G. Relationship of Permit Fees to Section 105 Grants
Once fully established, * State's permit fee program
should recover a significant portion, though not all, of its
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air program expenses. Section 105 of the Act continues to
require States to contribute a specified percentage and
maintain a certain level of overall air program support from
year to year. Regardless of the continued stature of the
•
Federal air grant program or the changing sources of state
program support, EPA has interpreted the Act (Title vm,
section 802) as requiring States to continue to satisfy
their maintenance of effort (MOE) provisions. States will,
therefore, need to report that portion of their permit fee
revenue that will be used to help meet their annual MOE
obligation. EPA plans to provide further clarification
through its upcoming revision of the air portion of the Part
35 regulations governing financial assistance to State and
local agencies for continuing environmental programs. EPA
is taking this opportunity to solicit comment on its
interpretation of the interrelationship of permit-fees,
grants and the MOE requirement.
H. Integration of NPDES Program Concepts
One of the principles previously identified for
designing and implementing Title V programs is to promote,
not preclude, reasonable integration of Title V permit
programs with other permit programs. Accordingly, EPA has
evaluated the NPDES regulatory provisions for possible
inclusion of relevant concepts within the Part 70
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regulation. The Agency is proposing to merge the programs
where this incorporation would not interface with
implementation of other important principles previously
identified to preserve the legislative intent underlying the
content of Title V [II]., such as maintaining, where
possible, existing State operating permit programs and
allowing reasonable flexibility in their future development
and implementation.
There are numerous existing regulations which apply to
the NPDES permit program under the CWA which have been
reviewed to determine whether they have applicability to the
Title V operating permit program. Based on the successful
implementation of the NPDES program by the Agency and the
States, and based on the Agency's future direction toward
consolidated permitting programs, many of these regulations
have been adapted for air and proposed for incorporation
into Part 70. Those which have been included pose no great
burden on either the permitting authority or the permittee.
In fact, in many cases these requirements represent good
business practices and will expedite review and
implementation of the program and of individual permits.
General provisions which are included relate to both program
requirements as well as to permit requirements.
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Program areas which have been addressed include
enforcement authorities required of the permitting authority
(IV.H.), compliance and enforcement tracking requirements,
program submittal requirements including Attorney Generals'
statements requirements, and information transfer
requirements. Permit provisions addressed by the regulation
include property rights, inspection and entry rights,
standard recordkeeping requirements, signatory and reporting
requirements.
The NPDES regulations in Parts 122-124 also include
requirements regarding program approval/disapproval
procedures, public review procedures, and EPA oversight
requirements. Where appropriate, excerpts from these
regulations have been extracted in whole or in part and
incorporated into Part 70. However, at this time the
specific requirements of Parts 124.10 through 124.14 have
not been included. The Agency recommends that permitting
authorities consider these parts when developing their
permit programs; and at this time the Agency is soliciting
comments on including requirements regarding public notice,
hearings, and comment periods on Title V permit actions.
The proposed incorporation of several specific features
from the NPOES program adds to the considerable common
ground already shared by the two programs as a result of
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their basic design (i.e., Title V was modeled in large part
on the structure of the NPDES program). Based on this
strong linkage between the air and NPDES programs, the EPA
Administrator further proposes that a presumption for issue-
resolution of Title V implementation concerns be established
based on the relevant experience obtained from carrying out
the NPDES program. Comment is solicited on the
appropriateness of this approach and where it should be
limited in its scope.
VI. Federal Operating Permit Program
A. Purpose
This preamble previously discusses the criteria for
determining if a State operating permit program meets the
requirements of Title V and the responsibility of EPA if the
State-submitted program is not approvable or if a state does
not adequately implement an approved program. The action
EPA must take is discussed under sections III.C. and IV.J.
In brief, EPA must establish and implement an operating
permit program that meets the requirements of Title V for a
State in either event of the State's not developing or
implementing a program. The EPA intends to propose in a
subsequent FEDERAL REGISTER notice a new Part 71 which would
set forth the elements of an operating permit program which
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EPA would implement. Part 124 (containing procedural
regulations on the issuance of EPA permits) will be amended
to provide similar procedural rules for Federal issuance.
Also to be included in Part 71 would be provisions
regarding the requirements for EPA issuing permits (l) for
Phase I sources of acid rain precursors and (2) for sources
of hazardous air pollutants which elect under section
112(i)(5) to demonstrate a 90/95% or greater early emissions
reduction to receive an extension from MACT standards. Both
of these permitting provisions are subsequently discussed in
this section. These permitting requirements would fall on
the EPA during the period prior to a State submitting and
gaining approval for an operating permits program under Part
70. The Parts 71 and 124 regulations also would serve as
the basis for EPA permitting sources on certain Indian
lands. Although section 301(d) authorizes EPA to treat
Indian tribes as States for certain purposes, including
issuing Title V permits, EPA has not yet promulgated
regulations on this matter. Many tribes probably will not
seek to (1) to be treated as a State, or (2) run a Title V
program. Where the tribe does not permit sources on Indian
lands, EPA plans to carry out the permitting itself.
When reviewing the proposed Part 70, the public is
encouraged to also consider the possible provisions that
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would be in a Part 71 Federal permitting program. The EPA
is soliciting comment on the concepts discussed in this
preamble section concerning a Federal permitting program.
These comments will be considered in developing a subsequent
Federal permit program proposal notice.
B. Part 71 Default Program
The Part 71 program that EPA would implement if a State
defaults on developing or implementing an acceptable Title V
program must meet the same criteria that a State must meet
for approval as part of the Part 70 program submittal.
These Part 71 provisions could, therefore, act as a model
for the regulation portion of a State operating permit
program.
Under Part 70, States are asked to establish certain
requirements or procedures within certain constraints, e.g.,
permit fee structure, standard application form, permit
review phase-in, public participation. For a Part 71
program, EPA must spell out details of these requirements or
procedures just as the State must do in its program
submittal. The EPA solicits comments on preliminary
thoughts as to the nature of the approaches that EPA would
take on these items.
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(1) SIP Ambiguity
A basic requirement of Title V is that permits are
issued such that all applicable requirements of the Act are
met. If an approved SIP has ambiguous provisions that are
not clear or certain provisions necessary for a control
strategy demonstration are missing/ EPA does not typically
intend to "fix" or revise the SIP in the permit. The permit
will generally adopt the provisions of the approved SIP and
any changes that are necessary will be achieved through the
SIP call mechanism. The EPA will, however, prescribe any
clarifications or new requirements as needed to ensure that
the applicable requirements are written in enforceable
terms. The EPA reserves the right to issue a source-
specific FIP (in the event a State fails to correct SIP
deficiencies) which would then be implemented in the
subsequent permit. Public comment is solicited on this
approach.
(2) Complete Application/Data Elements
The EPA will specify the elements of a standard
application form and include such a form in an appendix to
Part 71. Criteria will be provided for filling out the form
and specifying what constitutes a complete application.
Public comment is solicited on the contents of an
application.
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(3) Transition/Permit Review Phase-In
The EPA will phas.e in over a 3-year period the review
of initial permit applications submitted under a Part 71
program. About one-third of the applications will be
reviewed each of the 3 years. Public comment is solicited
on the criteria for phase-in. The phase-in approach could
be to review the largest, most serious sources first. The
EPA does not recommend that the less serious, smaller
sources be reviewed first, even though the review staff
might obtain some experience before addressing the larger
sources. An alternative approach could be to first address
sources of hazardous air pollutants that are not necessarily
presently regulated specifically for those pollutants. This
approach would assist in preparation of better emission
inventories. Another approach would be to address sources
for which MACT standards have been set and leave to the last
those sources for which MACT standards are likely to be set
in the near future.
(4) Public Participation/Public Hearings
Public comment is solicited on the appropriateness of
procedures for processing Part 71 permits similar to those
found in 40 CFR Part 124. In particular, the Agency
solicits comment on reasonable criteria for determining the
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need for a public hearing and on reasonable procedures for
processing actions to reopen existing Part 71 permits.
(5) Permit Fees
The EPA is authorized to collect permit fees if a State
defaults on its program and EPA must implement Part 71. The
default fee schedule in Part 70 is based on a $25/tpy rate
(1990 basis). The EPA would implement this rate on sources
under a Part 71 program. Public comment is solicited on the
appropriateness of this rate and on the possibility
(notwithstanding the exemptions for small businesses) of
charging higher rates on sources with lower emission rates
(i.e., hazardous air pollutant sources of 10 to
25 tpy). These small sources will require permit process
resources far in excess of the fees they would pay under a
$25/tpy schedule. For these sources, EPA could charge a
permit fee to cover reasonable costs for review time and for
follow-up compliance activities. EPA may not, however,
collect fees for NOX or SO2 under Phase I of the acid rain
program [408(c)(4)].
(6) Compliance Plan/Certification
Each permit application must be accompanied by a
compliance plan and a certification that the application
contents are accurate and complete. The certification must
be signed by a corporate official who is subject to criminal
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prosecution for false information in an application. All
certifications for affected sources under the acid rain
program must be signed by the designated representative for
that source. Criteria for eligibility as a designated
representative will be promulgated in a separate rulemaking.
Public comment is solicited on whether the selection of this
offici „ must meet similar criteria to that contained in the
NPDES program [70.2(bb)]. The EPA will include in Part 71
the specifics for an approvable compliance plan.
(7) Permit Reopeninas/Amendments
The EPA would reopen and revise a permit under certain
circumstances. New MACT standards or revised SIP
requirements on the source would cause an automatic
reopening of permits with remaining terms of 3 or more
years. The EPA believes that material error or inaccuracies
should also represent cause for reopening. The reopened and
revised permit would go through the full public
participation procedures as if the permit were new or k g
reissued at the end of its normal lifetime. If a permit
needed minor changes, such as some administrative error that
did not affect the emissions or compliance, the changes
could be made through an administrative amendment with no
public participation or other formal procedures. Public
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comment is solicited on reasons for reopening a permit and
on the process of administratively amending a permit.
(8) Operational Flexibility
The EPA intends to provide reasonable flexibility upon
request to sources to operate in different modes without
reopening and revising the permit. The various operating
scenarios or worst case situation would have to be specified
in the permit, including the corresponding level of control,
after which the source could choose the most appropriate
operation configuration at any specific time and be within
the permit. The effect of any operational flexibility would
have to be demonstrated to assure that all requirements of
the Act would be met. In particular, EPA intends to make
available the options described previously in the
section 70.6 discussion on permit content for Part 70
permits. Public comment is solicited on any restrictions to
this possible practice.
(9) Geographic Applicability
If EPA implements a Part 71 program, it will be for the
part of the State not covered by an acceptable program. If
EPA approves a local agency operating permit program, EPA
will cease implementation of the Part 71 program for that
geographic area and the local agency will assume
responsibility for issuing operating permits. Previously-
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issued Federal permits may be formally adopted and enforced
by the local agency. .If an approved local agency program is
already in place when EPA adopts a Part 71 program, it will
only be for the part of the State not covered by the local
program. Public comment is solicited on this approach.
(10) Permit Shield .
The EPA has the same option to institute a shield under
Part 71 as the States have under a Part 70 program. The
permit shield will be disallowed to the extent that it is
inconsistent with the acid rain program. Under a Part 71
Federal operating permit program, however, sources can still
be subjected to State requirements enforced by the State
outside the permit. This could also the case under a
State program. The EPf proposes to recognize and to enforce
only the conditions of the federally-approved permit with
the possible exception of sources in SIP call areas if a
broad interpretation of the shield is established. These
requirements would then come under requirements of a revised
SIP after permit issuance. Public comment is solicited on
the acceptability of EPA's position on this issue.
(11) Noncriteria Limits
The EPA will in general not implement the requirements
of an air toxics program for the State under a Part 71
program. If sources of hazardous air pollutants were
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subject to only State rules, EPA would not adopt these in a
Part 71 permit unless they were also part of a criteria
pollutant control strategy. Any MACT standard would, of
course, be adopted and a permit could be reopened for a new
MACT standard. Public comment is solicited on this
approach.
c. Acid Rain Program
In a subsequent FEDERAL REGISTER notice, EPA will
propose its program for controlling sources of acid rain
precursors as required by Title IV of the Act. That program
will consists of two phases, the first to be implemented by
an EPA permitting program and the second to be implemented
by State operating permit programs. The specific
requirements for which sources will be controlled and to
what extent will be covered by the subsequent notice. The
discussion herein addresses only the permitting portion of
the acid rain program.
The Phase I permitting program would address the
107 largest sources of sulfur and nitrogen oxide compounds
beginning two years after enactment. This would be before
State operating permit programs are required. The EPA
would, therefore, need to establish a permit program to
address the Phase I sources. This program would be a
component of Part 71 and would consist of those portions of
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Part 71 appropriate to fulfill the permitting requirements
of the acid rain sources, e.g., standard application, public
participation, compliance plan, certification.
The Part 71 acid rain regulations would establish the
requirement for operating permits and emission reductions on
the Phase I sources and refer to the applicable sections of
Part 71, rather than rewriting the same sections. Public
comment is solicited on the appropriate portions of Part 71
w_r apply to the acid rain sources in this permitting
program. Specifically, comment is solicited on the
following:
(1) Permit Content
The permits for Phase I would only address those
emissions that contribute to acid rain and would be issued
by EPA, rather than the States. Requirements of the Act
other than those implementing Title IV would not be included
in these permits. Phase II of the acid rain program will be
implemented by States with approved operating permits
programs. The Agency expects that States will include the
Title IV requirements in the facility's operatir -»ermit
under the Part 70 program which would also address all other
requirements of the Act.
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(2) Term
The term of all acid rain permits must be 5 years
[408.(a)].
(3) Shield
Sources under a Phase I permit will, for Federal
purposes, only address Title IV and applicable SIP
requirements for sulfur or nitrogen oxide emissions. The
shield in Title V will not apply beyond these requirements.
States could, however, establish and enforce more stringent
requirements on a source.
(4) Permit Fee
Acid rain precursor sources would be required to pay an
annual permit fee during Phase II of the acid rain program.
No fee requirements would be imposed by EPA for the Phase I
acid rain permits. States may, of course, require permit
fees for non-acid permitting prior to commencement of Phase
II. Thus, States may impose fee requirements for SO2 or NOX
if these pollutants are regulated at the source pursuant to
provisions of the Act other than Title IV.
D. MACT Extensions
The Title III program for establishing MACT standards
includes provisions for a 6-year extension for MACT
application if sources make certain demonstrations with
respect to their emissions. To obtain an extension, the
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source must reduce emissions by 90/95% or greater over 1987
emission levels. The mechanism for the early evaluation of
a demonstration from a proposed source will be a Part 71
permit. Any application for a MACT extension, therefore,
would be accompanied by a permit application adopting
emission limits at levels indicated in the demonstration so
that they would become federally-enforceable [V.E.].
The program to issue permits for MACT extension
purposes will be, as for the Phase I acid rain program, a
separate portion of Part 71 which would refer to appropriate
portions of the Part 71 program. These permits would only
address those hazardous air pollutant emissions associated
with the MACT standard, would not have an associated permit
fee, would not shield sources from other more strincrent
State requirements, and would be for a 5-year fixed term.
Public comment is solicited on this approach.
VII. Administrative Requirements
A. Public Hearing
One public hearing and two public meetings will be held
to discuss the proposed regulations. Persons wishing to
make oral presentations at the public hearing should contact
EPA at the address given in the ADDRESSES section of this
preamble. If necessary, oral presentations will be limited
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to 15 minutes each. Any member of the public may file a
written Statement with EPA before, during, or within 30 days
after the hearing. Written Statements should be addressed
to the Air Docket address given in the ADDRESSES section of
this preamble.
A verbatim transcript of the public hearing, written
statements, and a summary of the public meetings will be
available for public inspection and copying during normal
working hours at EPA's Air Docket in Washington, DC (see
ADDRESSES section of this preamble).
B. Docket
The docket for this regulatory action is A-90-33. The
docket is an organized and complete file of all the
information submitted to or otherwise considered by, EPA in
the development of this proposed rulemaking. The principal
purposes of the docket are: (1) To allow interested parties
a means to identify and locate documents so that they can
effectively participate in the rulemaking process, and
(2) to serve as the record in case of judicial review
(except for interagency review materials) [307(d)(7)(A)].
The docket is available for public inspection at EPA's Air
Docket, which is listed under the ADDRESSES section of this
notice.
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C. Reference Documents
(list documents)
D. Office of Management and Budget (OMB) Review
Under Executive Order 12291 (E.O. 12291), EPA must
judge whether a regulation is "major," and therefore subject
to the requirement "to the extent permitted by law" to
prepare a Regulatory Impact Analysis (RIA) in connection
with each major rule. Major rules are defined as those
likely to result in:
1. An annual cost to the economy of $100 million or
more; or
2 A major increase in costs or prices for consumers
or individual industries; or
3. Significant adverse effects on competition,
employment, investment, productivity, innovation,
or international trade.
The total cost of implementing the operating permit
programs in all States would incur annualized costs in
excess of $100 million. The requirements for these costs
are contained in section 502(b)(3) of Title V. Although
some of these costs represent some baseline costs, due to
existing State permitting and not new costs, the Agency has
declared these regulations to be major. Accordingly, a
Regulatory Impact Analysis has been prepared.
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Given the mandate within Title V to develop these
regulations, the Agency has taken steps to provide for the
timely accomplishment of the required objectives. In
following the implementation principles previously described
in section III, EPA has proposed to allow flexibility in
permit design, use general permits to expedite the review
process for certain smaller sources, and to phase-in
implementation of certain requirements. The Agency has thus
lowered the overall societal cost and any adverse economic
impact associated with meeting the environmental objectives
of Title V. In addition, with permit fee revenue
collections from subject sources State and local agencies
will have the resources to develop and implement an
accountable and enforceable operating permit program.
These regulations and the draft RIA were submitted to
OMB for review as required by E.O. 12291. Any written
comments from OMB to EPA, and any EPA responses to those
comments, will be included in Docket A-90-33.
E. 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
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governmental jurisdictions). That analysis is not
necessary, however, if an Agency's Administrator certifies
that the rule will not have a significant economic impact on
a substantial number of small entities.
The EPA has established guidelines for determining
whether an RFA is required to accompany a rulemaking
package. The guidelines State the criteria for determining
when the number of affected small entities is "significant."
The determination of significant essentially depends upon
compliance costs, production costs, and predicted closures.
A regulatory flexibility screening analysis was
prepared to examine the potential for significant adverse
impacts on small entities associated with specific
permitting provisions. Since potential adverse impacts
could exist, EPA is proposing to use the concept of general
permits and deferred applicability of non-major sources to
mitigate any such potential impacts. To the extent any
adverse impacts will occur/ the small business assistance
program provisions of Title V will provide relief.
Consequently, EPA does not believe large numbers of small
entities being affected or disproportionate significant
impacts on small entities. I hereby certify that this rule,
if promulgated, will not have a significant economic impact
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on a substantial number of small business entities and
thereby does not require an RFA.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C.35.01
et.seq.)/ Federal agencies must obtain OMB clearance for
collection of information from ten (10) or more non-Federal
respondents. Each source subject to the requirements for
obtaining an operating permit will have to submit a permit
application and will make periodic compliance reports.
These requirements parallel what sources are already
reporting to States and what States report to EPA. The
effect of these regulations will be to subject more sources
to these requirements, those sources being primarily sources
which emit smaller quantities of air toxics that currently
are not under State or local permitting requirements and/or
the data reporting requirements. These requirements are
contained in the amended Act and are requirements over which
EPA has no discretion. Their inclusion in the Act is due to
the necessity of having that information available to states
and EPA in order to effectively manage the control of air
quality under the Act. It would be impossible to keep track
of source compliance and general air quality management
activities without the data in question. Clearance has,
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therefore, been received from OMB to implement the data
collection requirements.
(Data)
(Signature of Administrator)
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40 CFR Part 70
State Operating Permit Programs
40 CFR 70.1
Program Overview
(a) The regulations in this Part provide for the establishment of
comprehensive State air quality permitting systems consistent with the
requirements of Title V of the Clean Air Act (Act) (42 U.S.C. 7401, et
seq.). These regulations define the minimum elements required by the Act
for operating permit programs and the corresponding standards and
procedures by which the Administrator will approve, oversee, and withdraw
approval of State operating permit programs. This permitting process is
the mechanism for implementation of the Act's regulatory requirements for
all stationary sources to which it applies.
(b) This permitting program is designed to promote timely and efficient
implementation of goals and requirements of the Act. Such a system
offers many benefits: a better organized and clearer process for
implementing air pollution control requirements, improved information
management, more efficient enforcement, greater certainty for sources and
the public, reasonable operational flexibility for industry to respond to
market based demands, greater speed in addressing various source-specific
actions that previously had to be processed as State implementation plan
(SIP) revisions, and increased and more predictable funding for State air
pollution permitting programs.
(c) All sources subject to these regulations must obtain a permit to
operate that assures compliance on the part of the source with all
applicable requirements of the Act. Title V of the Act does not
generally mandate that these permits impose substantive new air pollution
control requirements, but does require that fees be imposed on sources
and that certain procedural measures, especially with respect to
compliance, be adopted.
(d) Nothing in this Part precludes a State from adopting and implementing
a permit program that is more stringent or more extensive than the
minimum criteria required by this Part, as long as it is not inconsistent
with the Act. However, no permit can be less stringent than the
applicable provisions of the Act, including the SIP. In the case of
Federal intervention in the permit process, the Administrator reserves
the right to implement such a State program, in whole or in part, or the
standard Federal program contained in Part 71 of this Title.
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(e) The requirements of Part 70, including provisions regarding schedules
for submission and approval or disapproval of permit applications, shall
apply to the permitting of affected sources under the acid rain program,
except as provided herein or modified in 40 CFR, Parts 71A-74.
(f) Issuance of State permits under this part may be coordinated with
issuance of RCRA, UIC, NPDES, and section 404 permits whether they are
controlled by the State, the Environmental Protection Agency (EPA), or
tr Corps of Engineers.
40 CFR 70.2
Definitions
The following definitions apply to Part 70. Terms not defined in this
section retain the meaning generally accorded them under the Act. The Part 70
permit program, by its nature, implements requirements contained in numerous
sections of the Act. The definitions contained in those programs are
unaffected by Part 70 and those meanings are incorporated by reference into
this Part.
(a) "Actual emissions" means the actual rate of emissions from an
emissions unit, as determined in accordance with the following:
(1) In general, actual emissions as of a particular date shall equal the
average rate, in tons per year, at which the unit actually emitted the
pollutant during the two-year period which precedes the particular date
and is representative of normal source operation. The permitting
authority may allow the use of a different two-year period, within five
years of the particular date, upon a satisfactory determination that it
is more representative of normal source operation. "Normal source
operation" does not refer to low production years caused by less product
demand. Actual emissions shall be calculated using the unit's actual
operating hours, production rates, types of materials processed, stored,
or combusted during the selected time period, and in place control
equipment. This term is not meant to alter or affect the definition of
the term "actual 1985 emissions rate" for purposes of the acid rain
program.
(2) For any emissions unit which has not begun normal operations on the
particular date, actual emissions shall equal the potential to emit of
the unit on that date.
(b) "Affected source" means a source that includes one or more rcfected
units under Title IV of the Act.
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(c) "Affected State" is any State whose air quality may be affected and
that is contiguous to the State in which a Part 70 permit (including
modifications and renewals) is being proposed or which is within 50 miles of
the permitted source.
(d) "Affected unit" means a "unit" as that term is defined in Title IV,
that is subject to the emission reduction requirements or limitations of
Title IV of the Act.
(e) "Applicable requirements" or an "applicable requirement" of the Act
mean all, or any, of the following as they apply to emissions units in a
permitted facility, at permit issuance and thereafter, unless the context of
the regulation requires otherwise:
(1) The provisions of the applicable SIP approved by EPA under Title I
of the Act, including any revisions to that plan, in 40 CFR Part 52;
(2) The provisions of any preconstruction permits issued pursuant to
Title I, parts C or D of the Act;
(3) The provisions of the new source performance standard program under
section 111 of the Act and 40 CFR Part 60;
(4) The provisions of the national emission standards for hazardous air
pollutants program under section 112 of the Act and 40 CFR Part 61.
(5) The provisions of the acid rain program under Title IV of the Act
and 40 CFR Parts 71A, 72, 73, and 74;
(6) Any monitoring, reporting, and certification requirements
established pursuant to Title V or section 114 of the Act.
(f) A "complete application" is one that the permitting authority has
determined, consistent with the criteria in section 70.5(c), to contain all
the information needed to begin to process the application. A determination
that an application is complete continues in effect, provided that the source
submits in a timely fashion any additional information reasonably determined
by the permitting authority in writing to be necessary for developing and
issuing the Part 70 permit by the submittal date(s) defined by the permitting
authority.
(g) "Designated representative" means a responsible person or official
authorized by the owner or operator of an affected unit, in accordance with
Title IV and Parts 71A through 74, to represent the owner or operator in
matters pertaining to the holding, transfer, or disposition of allowances
allocated to the unit, and the submission of and compliance with permits,
permit applications, and compliance plans for the unit. For purposes of acid
rain program permit requirements, whenever the term "responsible official" is
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used in this part it shall be deemed to refer to the "designated
representative" of the affected source or affected unit, for whom a
certificate of designation has been.submitted in accordance with Part 71A.
(h) A "draft proposed permit" is the version «f a permit for which the
permitting authority offers public notice and an opportunity for public
comment and hearing.
(i) "Emissions unit" means any part of a stationary source which emits or
has the potential to emit any regulated pollutant. This term is not meant to
alter or affect the definition of the term "unit" for purposes of the acid
rain program.
(j) The "EPA" or the "Administrator" means the Administrator of the
U. S. EPA or his designee.
(k) "Federally-enforceable" means all limitations and requirements
enforceable by the Administrator. These include the following:
(1) Requirements developed pursuant to sections 111, 112, or Title IV of
the Act;
(2) Requirements within any applicable SIP;
(3) Any permit requirements established pursuant to 40 CFR 52.21 or under
regulations approved pursuant to 40 CFR Part 51, Subpart I, including
operating permits issued under an EPA-approved program; and
(4) All other terms and conditions of any Part 70 or Part 71A permit
that are enforceable by the U. S. or citizens under section 70.6(b), and
are not otherwise expressly excluded from being federally-enforceable by
the Administrator. A State may not expressly exclude any applicable
requirements of the Act from Federal enforceability.
(1) A "final permit" is the version of a Part 70 permit issued by the
permitting authority which has completed all administrative concurrence and
procedures at the State and Federal levels.
(m) "Fugitive emissions" are those emissions which could not reasonably
pass through a stack, chimney, vent, or other functionally equivalent opening.
(n) A "general permit" is a standardized Part 70 permit that may be made
applicable to numerous similar sources. Criteria for general permits are set
forth in section 70.6(f) of this Part.
(o) A "major permit amendment" is a revision to a Part 70 permit, as
provided for in section 70.7(f), which incr uses the emissions allowed in the
permit but not more than the least amount of 10 tpy, 40% of the applicable
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threshold for major source, or any other more restrictive criteria established
by the Administrator by rule.
(p) "Major source" means any stationary source (or any group of
stationary sources located within a contiguous area and under the common
control of the same person or persons under common control) that is any of the
following:
(1) A major source as defined in section 112 of the Act:
(i) For pollutants other than radionuclides, this means 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 or more of any
hazardous air pollutant which has been listed pursuant to section
112(b) of the Act, 25 tons per year or more of any combination of
such hazardous air pollutants, or such lesser quantity as the
Administrator may establish by rule.
(ii) For radionuclides, such term shall have the meaning specified
by the Administrator by rule.
(2) A major stationary source of air pollutants, as defined in
section 302 of the Act, which directly emits or has the potential to
emit, one hundred tons per year or more of any air pollutant (including
any major source of fugitive emissions of any such pollutant, as
determined by rule by the Administrator). The fugitive emissions of a
stationary source shall not be considered in determining whether it is a
major stationary source for the purposes of section 302(j), unless the
source belongs to one of the following categories of stationary sources:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more than
250 tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or nitric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
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(xvii) Fuel conversion plants:
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants;
(xxi) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat
input;
(xxii) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil fuel-fired steam electric plants of more than
250 million British thermal units per hour heat input.
(xxvii) All other stationary source categories regulated under
sections ill or 112 of the Act.
(3) A major stationary source as defined in Part D of Title I of the Act:
(i) For ozone nonattainment areas, this means sources with the
potential to emit volatile organic compounds and/or nitrogen oxides
of 100 tons or more per year in areas classified as "marginal" or
"moderate," 50 tons or more per year in areas classified as
"serious," 25 tons or more per year in areas classified as "severe,"
and 10 tons or more per year in areas classified as "extreme;"
(ii) For ozone transport regions, pursuant to section 184 of the
Act, this means sources with the potential to emit volatile organic
compounds of 50 tons or more per year;
(iii) For carbon monoxide nonattainment areas (1) that are
classified as "serious," and (2) in which stationary sources
contribute significantly to carbon monoxide levels as determined
under rules issued by the Administrator, this means sources with the
potential to emit 50 tons or more per year of carbon monoxide;
(1v) For particulate matter (PMj.) nonattainment areas classified as
"serious," this means sources with the potential to emit 70 tons or
more per year of PM10.
(q) A "mir^r permit amendment," as provided for in section 70.7(e), is
one of the fol jwing revisions which can be administratively incorporated into
a Pa^t 70 permit:
(1) Changes that are intrinsically of minor significance to air quality
management. These changes may include items such as source name change
or change in ownership (except as precluded in 40 CFR 71.A),
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(2) Changes that may involve significant aspects of source operation, but
which have already been subject to careful, source-specific scrutiny
including public participation. These are generally limited to revisions
to the permit which reflect requirements from preconstruction review
permits incorporated into the applicable SIP and the source has agreed to
monitoring and reporting conditions sufficient to ensure continuing
compliance.
(r) A permit "modification" is a permit revision that is not a minor or
major permit amendment.
(s) A "permit revision" is any change to a permit that is not governed by
flexible source operation provision set forth in section 70.6(d). Permit
revisions include permit modifications, major permit amendments, and minor
permit amendments.
(t) A "Part 70 permit" is any permit issued, renewed, amended, or revised
pursuant to this part.
(u) A "Part 70 source" is any source subject to the permitting
requirements of this part, as provided in section 70.3.
(v) A "permitted facility" means all the emissions units which must be
permitted as provided in section 70.3(c).
(w) "Permitting authority" means
(1) the Administrator, in the case of EPA-implemented programs; or
(2) the State air pollution control agency, local agencies, other
State agencies, Indian tribes or other agencies authorized by the
Administrator to carry out a permit program under this part.
(x) A "proposed permit" is the version of a permit that the permitting
authority adopts after closure of the public notice period and considering any
public comments including those from any affected State.
(y) "Potential to emit" means the maximum capacity of a stationary source
to emit a pollutant under its physical and operational design. Any physical
or operational limitation on the capacity of a source to emit a pollutant,
including air pollution control equipment and restrictions on hours of
operation or on the type or amount of material combusted, stored, or
processed, shall be treated as part of its design if the limitation is
federally-enforceable. This term does not alter or affect the use of this
term for any other purposes under the Act, or the term "capacity factor" as
used in Title IV.
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(z) "Regulated pollutant" means each pollutant for which a national
primary ambient air quality standard h ., been promulgated, a volatile organic
compound, or any pollutant subject to regulation under Title IV or
sections 111 or 112 of the Act. The pollutants subject to regulation under
section 112 include those for which standards were proposed or promulgated
prior to enactment of the Act Amendments of 1990, and those developed after
enactment pursuant to section 112(b) of the Act.
(aa) "Renewal" is the process by which a permit is reissued at the end of
its term.
(bb) "Responsible official" means one of the following.
(1) For a Corporation: A president, secretary, treasurer, or vice-
president of the corporation in charge of a principal business function,
or any other person who performs similar policy- or decision-making
functions for the corporation; or the manager of one or more
manufacturing, production, or operating facilities employing more than
250 persons or having gross annual sales or expenditures exceeding $25
million (in second quarter 1980 dollars), if authority to sign documents
has been assigned or delegated to the manager in accordance with
corporate procedures.
NOTE: The EPA does not require specific assignments or delegations of
authority to responsible official corporate officers identified. The
Agency will presume that these responsible corporate officers have the
requisite authority to sign permit applications unless the corporation
has notified the permitting authority to the contrary. Corporate
procedures governing authority to sign permit applications may provide
for assignment or delegation to applicable corporate positions rather
than to specific individuals.
(2) For a partnership or sole proprietorship: A general partner or the
proprietor, respectively.
(3) For a municipality, State, Federal, or other public agency: Either a
principal executive officer or ranking elected official. For the
purposes of this part, a principal executive officer of a Federal agency
includes the chief executive officer having responsibility for the
overall operations of a principal geographic unit of the agency (e.g.,
Regional Administrators of EPA).
(cc) "Stationary Source" means all the activities which emit or may emit
any pollutant regulated under the Act that belong to the same industrial
grouping, are located on one or more contiguous or adjacent properties, and
are under common control of the same person (or persons under common control)
except the activities of any vessel. Pollutant-emitting activities shall be
considered as part of the same industrial grouping if they belong to the same
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Major Group (i.e., which have all the same two-digit code) as described in the
Standard Industrial Classification Manual, 1972, as amended by the 1977
Supplement (U.S. Government Printing Office stock numbers 4101-066 and 033-
055-00176, respectively).
(dd) The term "State" includes all non-federal permitting authorities,
including local agencies and interstate associations, as well as state-wide
programs. The term "State" also encompasses those Indian tribes that the
Administrator has determined, pursuant to section 301(d) of the Act, to treat
as States. "State" shall have its conventional meaning where clear from the
context. For purposes of the acid rain program, the term "State" shall be
limited to authorities within the 48 continuous States and the District of
Columbia as provided in section 402(14) of the Act.
(ee) "Whole program" means a Part 70 permit program, or any combination
of partial programs, that meet all the requirements of these regulations and
cover all the Part 70 sources in the entire State. For the purposes of this
definition, State does not include local permitting authorities, but refers
only to the entire State, Commonwealth, or Territory.
40 CFR 70.3
Applicability
§70.3(a) Sources Subject to Permitting: Part 70 Sources.
A State permitting program under this part must provide for permitting of
at least the following Part 70 sources:
(1) Any major source as defined in section 70.2(p);
(2) Any source, including an area source, subject to a standard or
regulation promulgated under section 111 of the Act;
(3) Any source, including an area source, subject to a standard or
regulations promulgated under section 112 of the Act;
(4) Any affected source subject to Title IV of the Act and the acid rain
program requirements of Parts 71A through 74, including any election
source as defined in Title IV;
(5) Any source designated by the Administrator pursuant to this section.
These sources include [reserved].
§70.3(b) Source Category Exemptions.
A State permitting program under this part may provide for exemptions of
source categories from the requirements of this part consistent with the
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Administrator's designations pursuant to this section.
(1) Except as provided in subparagraphs (2) and (4) below, all Part 70
sources which are not major sources, as defined in section 70.2 (i.e.,
nonmajor sources) or affected sources under the acid rain program
Parts 71A through 74, and for which the State has made the showing
described in subparagraph (2) below, may be exempted from the obligation
to obtain a Part 70 permit for a period of 5 years from the effective
date of the Part 70 or Part 71 program, as applicable in the State.
(2) In the case of nonmajor sources that emit any pollutant or precursor
to a pollutant for which the area in which such sources are located is
designated nonattainment, the State shall submit the following.
(i) An inventory or quantification of nonmajor sources in
nonattainment areas which would be exempted from the program.
(ii) A demonstration that the State can assure compliance with the
State's nonattainment area SIP obligations applicable to such
sources without relying on the Part 70 permit program for the first
5 years of the program.
(3) No nonmajor source may be exempted under subparagraph (2) from the
Part 70 permit program until the State has submitted the required
information, and EPA has approved the exemption for the first 5 years of
the program.
(4) In the case of nonmajor sources subject to a section 112 standard
promulgated after [date of promulgation], the Administrator shall
determine whether to exempt any or all applicable sources at the time
that the new standard is promulgated.
(5) Any Part 70 source not subject to permitting under section 70.3(a),
(b)(l), or (b)(2) may opt to apply for and receive a permit under a
program approved pursuant to these regulations.
(6) The following source categories may be exempted from the obligation
to have a Part 70 permit: [reserved]
§70.3(c) Emissions Units and The Permitted Facility.
All emissions units are considered part of the permitted facility, and
are thus subject to the permitting requirements of this part, if:
(1) Such emission units are located on a contiguous or adjacent property
with any Part 70 source; and
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(2) Such emission units are under common control of the same person (or
persons under common control) as any Part 70 source.
This is the case regardless of whether those emissions units are individually
of the size or type of emissions unit that would trigger classification as a
Part 70 source. The conditions of the permit shall address all requirements
applicable to emissions units in the permitted facility. The minimum
requirements for any units not directly subject to State or Federal
requirements need not be addressed in the permit, but must, at a minimum, be
described for fee purposes, unless the permitting authority pursuant to
section 70.9(c) has exempted it from fees.
§70.3(d) Pollutant Applicability.
The permitting process under this part shall address each pollutant
regulated under the Act and emitted by a Part 70 source and from the permitted
facility.
§70.3(e) Fugitive Emissions.
Fugitive emissions from a permitted facility shall be reviewed and
included in the permit in the same manner as stack emissions, regardless of
whether the source category in question is included in the list of sources
contained in the definition of "major source" in section 70.2(p)(2).
40 CFR 70.4
State Program Submittals and Transition
§70.4(a) Date for Submittal.
Not later than November 15, 1993, the Governor of each State shall submit
to the Administrator for approval a proposed whole permit program, under State
law or under an interstate compact, meeting the requirements of this Part. If
Part 70 is subsequently revised such that the Administrator determines that it
is necessary to require a change to an approved State program, the required
revisions to the program shall be submitted within 12 months of the final
changes to Part 70, unless the Administrator authorizes some other time.
§70.4(b) Elements of the Initial Program Submission.
Any State that seeks to administer a program under this Part shall submit
to the Administrator a formal letter of submittal from the Governor or his
designee requesting EPA approval of the program and at least three copies of a
program submission. The submission shall contain the following.
(1) A complete program description describing how the State intends to
carry out its responsibilities under this Part.
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(2) The regulations that comprise the program, evidence of their
procedurally correct adoption (including any required notice of public
comment and any significant comments received), and copies of all
applicable State or local statutes and regulations which authorize the
Part 70 regulations, including those governing State administrative
procedures.
(3) A legal opinion from the Attorney Gneral for the State, or the
attorney fc* those State, local, or interstate air pollution contrc
agencies which have independent legal counsel, stating that the lav of
the State, locality, or interstate compact provide adequate authority to
carry out all aspects of the program. This statement shall include
citations to the specific statutes, administrative regulations, and,
where appropriate, judicial decisions which demonstrate adequate
authority. State statutes and regulations cited by the State Attorney
General or independent legal counsel shall be in the form of lawfully
adopted State statutes and regulations at the time the statement is
signed and shall be fully effective by the time the program is approved.
To qualify as "independent legal counsel" the attorney signing the
statement required by this section must have full authority to
independently represent the State agency in court on all matters
pertaining to the State program. It shall also include demonstrations of
adequate legal authority to carry out the requirements of this part,
including authority to carry out the following.
(i) Issue permits and assure compliance by all sources required to
have a Part 70 permit with each applicable standard, regulation, or
requirement under the Act.
(ii) Incorporate appropriate monitoring and reporting require^^ts
into Part 70 permits.
(iii) Issue permits for a fixed term of 5 years in the case of acid
rain permits and not to exceed 5 years for all other permits.
(iv) Incorporate into permits emission limitations and all other
applicable requirements and prohibitions under the Act, including
those in an applicable implementation plan.
(v) Terminate, modify, or revoke and reissue permits for cause.
(vi) Enforce permits, permit fee requirements, and the requirement
to obtain a permit, as specified in section 70.11.
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(vii) Make available to the public any permit application,
compliance plan, permit, and monitoring and compliance report under
section 503(e) of the Act, with the exception of that information
entitled to confidential treatment pursuant to section 114(c) of the
Act.
(viii) Not issue a permit for Part 70 if the Administrator timely
objects to its issuance.
(ix) Provide an opportunity for judicial review in State court of
the final permit by the applicant, any person who participated in
the public comment process provided pursuant to section 70.7(j), and
any other person who could obtain judicial review of such actions
under State laws.
(x) Ensure that the acid rain portions of permits for affected
sources meet the requirements of Parts 71A through 74.
(xi) Ensure that the authority of the State/local permitting Agency
is not used to modify the acid rain program requirements.
(xii) Issue and enforce general permits if the State seeks to
implement the general permit program.
(4) Relevant permitting program documentation not contained in the State
regulations, including the following.
(i) Copies of the permit form(s), application form(s), and
reporting form(s) the State intends to employ in its program.
(ii) Criteria for monitoring source compliance including inspection
strategies and inspector training certification.
(5) A complete description of the State's compliance tracking and
enforcement program, unless the State has an agreement with EPA that
provides this information.
(6) A showing of adequate authority and procedures to determine within
30 days of receipt whether applications (including renewal applications)
are complete and to take final action on such applications in a timely
manner. Any failure to take final action in a timely manner shall be
treated as a final permit action solely for purposes of obtaining
judicial review in a State Court to require that actions be taken by the
permitting authority on such application without additional delay.
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(7) A demonstration, consistent with section 70.9, that the permit fees
required by the State program are sufficient to cover all reasonable
(direct and indirect) costs required to develop and administer the Part
70 permit program.
(8) A statement from the Governor that adequate personnel and funding
have been made available to develop and administer the program. This
statement shall include the following.
(i) A description in narrative form of the scope, structure,
coverage and processes of the State program.
(ii) A description of the organization and structure of the State
agency or agencies which will have responsibility for administering
the program,including the information listed below. If more than
one agency is responsible for administration of a program, each
agency must have statewide jurisdiction over a class of activities.
The responsibilities of each agency must be delineated, their
procedures for coordination must be set forth, and an agency may be
designated as a "lead agency" to facilitate communications between
EPA and the State agencies having program responsibility.
(iii) A description of the State agency staff who will carry out the
State program, including the number, occupation, and general duties
of the employees. The State need not submit complete job
descriptions for every employee carrying out the State program.
(iv) A description of applicable State procedures, including
permitting procedures and any State administrative or judicial
review procedures.
(v) An estimation of the costs of establishing and implementing the
program for the first 4 years after approval, and a description of
how the State plans to meet those costs.
(9) A commitment from the permitting authority to submit at least
annually to the Administrator information regarding the permitting
authority's enforcement activities including but not limited to the
number of criminal and civil and judicial and administrative enforcement
actions commenced and completed; the penalties, fines and sentences
obtained in those actions; and the number of administrative orders
issued.
(10) A requirement under State law that, if a timely and complete
application for a permit renewal is submitted to the permitting
authority, then the following shall occur.
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(i) The permit shall not expire until the renewal permit has been
issued or denied; or
(ii) All the terms and conditions of the permit shall remain in
effect until the renewal permit has been issued or denied. These
terms and conditions do not include the permit shield contained in
section 70.6(h).
(11) A transition plan providing a schedule for submittal and final
action on initial permit applications for all Part 70 sources. This plan
shall provide for submittal of permit applications by all Part 70 sources
by no later than one full year after the effective date of the permit
program (or a partial or interim program) and assure that at least one
third of such applications will be acted upon annually over a period not
to exceed 3 years after such effective date. Priority for action on
permits shall be given to those sources with the greatest impact on air
quality.
(12) Any permitting programs, such as those of local air pollution
control agencies, providing for the issuance of permits by a permitting
authority other than the State, shall be consistent with all the elements
required in section 70.4(b)(l) through (11).
§70.4(c) Partial Programs.
The EPA may approve a partial program if, at a minimum, it applies and
ensures compliance with Title V of the Act and with all the requirements
following, as they apply to the source categories covered by the partial
program.
(1) All requirements of Title V of the Act and of these regulations.
(2) All requirements established under Title IV applicable to affected
sources.
(3) All requirements established under section 112 of the Act applicable
to "major sources," "area sources," and "new sources."
(4) All requirements of Title I (other than section 112).
Approval of any partial program does not relieve the State from its obligation
to submit a whole program or from application of any sanctions for failure to
submit a fully approvable whole program.
§70.4(d) Interim Approval.
If a program (including a partial permit program) submitted under this
part substantially meets the requirements of this part, but is not fully
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approvable, the Administrator may by rule grant the program interim approval.
The EPA will not grant interim approval to any program unless it meets each of
the following minimum requirements.-
(1) Adequate Fees. The program must provide for collecting permit fees
adequate to meet the requirements of section 70.9.
(2) Applicable Requirements. The program must provide for adequate
authority to issue permits that assure compliance with all applicable
requirements of the Act, including the requirements of the applicable
SIP, for those sources covered by the program.
(3) Fixed Term. The program must provide for fixed permit terms, not to
exceed 5 years.
(4) Public Participation. The program must provide for public notice of
and an opportunity for public comment on draft proposed permits.
(5) EPA Review. The program must allow EPA an opportunity to review each
proposed permit and to object to its issuance.
(6) Permit Issuance. The program must provide that the proposed permit
will not be issued if EPA objects to its issuance within a period
approved by EPA in the interim program.
In the notice of final rulemaking granting interim approval, the
Administrator shall specify the changes that must be made before the program
can receive full approval and the conditions for implementation of the program
until that time. Such interim approval shall expire on a date set by the
Administrator, but not later than 2 years after such approval, and may not be
renewed. Sources will become subject to the program according to the schedule
approved in the State program. Permits granted under an interim approval
shall expire at the end of their fixed term, unless renewed under a fully or
partially approved program.
§70.4(e) EPA Review of Permit Program Submittals.
Within 1 year after receiving a program submittal, the Administrator
shall approve or disapprove the program, in whole or in part, by publishing a
notice in the FEDERAL REGISTER. Any EPA action disapproving a program, in
whole or in part, shall include a statement of the revisions or modifications
necessary to obtain approval. The Administrator shall approve State programs
which conform to the applicable requirements of this part.
(1) Within 30 days of receipt by EPA of a State program submission, EPA
will notify the State whether its submission is complete. If EPA finds
that a State's submission is complete, the statutory review period (i.e.,
the period of time allotted for formal EPA review of a proposed State
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program) shall be deemed to have begun on the date of receipt of the
State's submission. If EPA finds that a State's submission is
incomplete, the statutory review period shall not begin until all the
necessary information is received by EPA.
(2) If the State's submission is materially changed during the statutory
review period, the statutory review period shall begin again upon receipt
of the revised submission.
§70.4(f) State Response to EPA Review of Program.
(I) Disapproval. The State shall submit to EPA changes to the program
that address the revisions or modifications required by the
Administrator's action disapproving the program, or any part thereof,
within 180 days of receiving notification of the disapproval or such
other time not to exceed 2 years as specified by the Administrator.
(2) Interim Approval. The State shall submit 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.
§70.4(g) Effective Date.
The effective date of a permit program, or partial or interim program,
approved under this part, shall be the effective date of approval by the
Administrator.
§70.4(h) Individual Permit Transition.
Upon approval of a State program, the Administrator shall suspend the
issuance of Federal permits for those activities subject to the approved State
program. After program approval, EPA shall retain jurisdiction over any
permits (including general permits) which it has issued unless arrangements
have been made with the State to assume responsibility for these permits.
Retention of jurisdiction shall include the processing of any permit appeals
or modification requests; the conduct of inspections; and the receipt and
review of self-monitoring reports. If any permit appeal or modification
request is not finally resolved when the federally-issued permit expires, EPA
may, with the consent of the State, retain jurisdiction until the matter is
resolved. Upon request by a State, the Administrator may delegate authority
to implement all or part of a Part 71 permit, if a Part 71 program has been
promulgated for the State. The delegation may include authorization to the
State to collect appropriate fees, consistent with section 70.9.
§70.4(i) Program Revisions.
Either EPA or the State with an approved program may initiate program
revision. Program revision may be necessary when the controlling Federal or
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State statutory or regulatory authority is modified or supplemented. The
State shall keep EPA fully informed of any proposed modifications to its basic
statutory or regulatory authority, forms, procedures, or priorities.
(1) Mandatory. If the Administrator determines that a State is not
adequately administering the requirements of this Part, or that the
State's permit program is inadequate in any other way, the program, or
its means of implementation by the State, shall be revised to correct the
inadequacy. The program shall be revised within 180 days, or such other
period as the Administrator may specify, following notification by the
Administrator, or by such later date as prescribed by the Administrator
after consultation with the State.
(2) Discretionary. Revision of a State program shall be accomplished as
fol1ows.
(i) The State shall submit a modified program description, Attorney
General's statement, or such other documents as EPA determines to be
necessary under the circumstances.
(ii) Whenever EPA determines that the proposed program revision is
substantial, EPA shall issue public notice and provide an
opportunity to comment for a period of at least 30 days. The public
notice shall be mailed to interested persons and shall be published
in the FEDERAL REGISTER and in enough of the largest newspapers in
the State to provide statewide coverage. The public notice shall
summarize the proposed revisions and provide for the opportunity to
request a public hearing.
(iii) The Administrator shall approve or disapprove program
revisions based on the requirements of this part and of the Act.
(iv) A program revision shall become effective upon the approval of
the Administrator. Notice of approval of any substantial revision
shall be published in the FEDERAL REGISTER. Notice of approval of
non-substantial program revisions may be given by a letter from the
Administrator to the Governor or his designee.
(v) Any permitting agency with an approved program shall notify EPA
whenever it proposes to transfer all or part of the program to any
other agency, and shall identify any new division of
responsibilities among the agencies involved. The new agency is not
authorized to administer the program until approved by the
Administrator under section 70.4(e).
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(3) Whenever the Administrator has reason to believe that circumstances
have changed with respect to a State program, he may request, and the
State shall provide, a supplemental Attorney General's statement, program
description, or such other documents or information as are necessary.
§70.4(j) Sharing of Information.
(1) Any information obtained or used in the administration of a State
program shall be available to EPA upon request without restriction. If
the information has been submitted to the State under a claim of
confidentiality, the State must submit that claim to EPA when providing
information to EPA under this section. Any information obtained from a
State and subject to a claim of confidentiality will be treated in
accordance with the regulations in 40 CFR Part 2. If EPA obtains from a
State information that is not claimed to be confidential, EPA may make
that information available to the public without further notice.
(2) EPA shall furnish to States with approved programs the information in
its files which the State needs to implement its approved program. Any
such information submitted to EPA under a claim of confidentiality will
be subject to the conditions in 40 CFR Part 2.
§70.4(k) Administration and Enforcement.
Any State that fails to adopt a complete, approvable Part 70 program, or
that EPA determines is not adequately administering or enforcing such a
program, shall be subject to certain Federal sanctions as set forth in
section 70.10.
40 CFR 70.5
Permit Applications
§70.5(a) Duty to apply.
Any person who owns or operates a facility required to have a permit
under this part shall submit a timely and complete permit application in
accordance with this section. For an initial permit, a timely application is
one that is submitted 12 months after the source becomes subject to the permit
program or such earlier date as the permitting authority may establish. For
purposes of a permit renewal, a timely application is one that is submitted 18
months prior to the date of permit expiration, or such other time as approved
by the Administrator.
§70.5(b) Standard Application Form.
The State program under this part shall provide for a standard
application form or forms. The permitting authority may use its discretion in
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developing application forms that best meet program needs and administrative
efficiency, but the forms and attachments chosen shall include, as a minimum,
the key elements specified below.
(1) General company information, including company name and address (or
plant name and address if different from the company name), owner's name
and agent, plant site manager/contact.
(2) A plant description, including an area map, descriptions of the
processes and products (including identification by Standard Industrial
Classification code), exact location and description of all emissions
units, raw materials used, and identification of all significant
equipment or emissions units.
(3) The following emissions related information.
(i) All regulated pollutants emitted.
(ii) Identification and description of all emissions points in
sufficient detail to establish the basis for fees and applicability
of requirements of the Act.
(iii) Emissions rates, in maximum pounds per hour and total tons per
year, and in such other terms as are necessary to establish
compliance consistent with the applicable standard reference test
method.
(iv) Fuels and fuel use.
(v) Identification and description of air pollution control
equipment.
(vi) Emissions related operation procedures.
(vii) Flow rates, stack parameters, (including height, diameter
plume, temperature, building dimensions), and other information
necessary to describe the nature and origin of emissions.
(viii) Calculations on which the above items are based.
(ix) Work practice implementation, where applicable.
(4) The following air pollution control requirements.
(i) Citation and description applicable State and Federal air
pollution control requirements.
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(ii) Description of any applicable test method for determining
compliance with each limit.
(5) Such other information, specific to particular program requirements
of the Act, as may be necessary to implement and enforce those other
requirements of the Act.
(6) Additional information as necessary to define reasonably anticipated
alternative operating scenarios which must be addressed in the Part 70
permit.
(7) A compliance plan, including the following.
(i) A description of how all applicable requirements under the Act
will be achieved and maintained.
(ii) A description of how the source will demonstrate continuing
compliance with those requirements.
(iii) A description of the compliance status of the source with each
of those requirements.
(iv) A schedule of compliance.
(A) In the case of a source not in compliance with all applicable
requirements of the Act, the schedule of compliance shall include a
schedule of remedial measures, including an enforceable sequence of
actions with milestones, leading to and maintaining compliance with
all applicable requirements of the Act. The compliance schedule
shall be at least as stringent as that contained in any judicial
consent decree or administrative order to which the source is
subject.
(B) In the case of a source in compliance with all applicable
requirements of the Act, the schedule of compliance shall include an
enforceable sequence of actions with deadlines designed to maintain
current compliance, including but not limited to a schedule for
maintaining pollution control equipment.
(v) A schedule for submission of certified progress reports no less
frequently than every 6 months or such other shorter period as
specified in the underlying applicable requirement.
(vi) An explanation of any proposed exemptions from otherwise
applicable air pollution control requirements.
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The compliance plan content requirements specified in (i) through (vi)
above shall apply and be included in the acid rain portion of compliance
plans for affected sources under Title IV, except as specifically
superseded by Part 71A and Title IV with regard to the schedule and
method(s) the source will use to achieve compliance with the acid rain
emissions limitations.
(8) Requirements for compliance certification, including the following.
(i) A certification by a responsible official consistent with
subparagraph (10), or in the case of affected sources under the acid
rain program, the designated representative, that the source has
included all air pollution control requirements.
(ii) A statement of methods as necessary for determining initial and
continuing compliance, including a description of monitoring,
recordkeeping, and reporting requirements and test methods.
(iii) A schedule for submission of compliance cert'fications during
the permit term, to be submitted no less frequently than annually or
for such other shorter period as specified by the underlying
requirements.
(iv) A statement that the source is in compliance with the enhanced
monitoring and compliance certification requirements of Title VII.
(9) The use of nationally standardized forms for acid rain portions of
permit applications and compliance plans, as required by Part 71A.
(10) Any form or report submitted pursuant to Part 70 regulations shall
require certification by a responsible official of truth, completeness,
and accuracy./ This certification and any other certification required
under thiss'Tart shall state that, to the best of the signer's knowledge,
information and belief formed after reasonable inquiry, the statements
and information in the document are true, complete, and accurate.
§70.5(c) Completeness Determination.
The program shall provide criteria and procedures for determining in a
timely fashion when applications are complete. To be deemed complete, an
application must provide all information necessary to begin to process the
application for the particular source. This information must be sufficient to
evaluate the subject source and determine applicable regulatory requirements.
The program shall require that a responsible official certify the submitted
information consistent with paragraph (b)(10). Unless a determination that an
application is not complete is made by the permitting authority within 30 days
of receipt of the application, an application shall be deemed to be complete.
If, during the processing of an application after it has been determined to be
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complete, the reviewing authority determines that additional information is
necessary in order to evaluate that application, such information may be
requested in writing from the source. The ability for the source to continue
operation referred to in section 70;7(b) shall remain in effect from the time
that the permitting authority determines that the application is complete
until the final permit is issued, as long as the applicant submits appropriate
additional information by the deadline specified by the permitting authority.
§70.5(d) Early Reductions Demonstration.
Following submssion of an application by a source, the permitting
authority shall determine within 30 days whether an application for a Part 70
permit is complete with respect to the information needed to make a
demonstration to establish an alternative emissions limitation pursuant to
section 112(1)(5) and all other relevant application requirements. The
permitting authority shall notify the applicant regarding the adequacy of this
demonstration within 6 months of the date that the application was determined
by the permitting authority to be complete for this purpose.
40 CFR 70.6
Permit Content
§70.6(a) Standard Permit Requirements.
Each permit issued under this Part shall include the following elements.
(1) Emission limitations and standards to ensure compliance with all
applicable requirements of the Act at the time of permit issuance.
(i) Permits shall specify and reference the origin of and authority
for each requirement incorporated therein, and identify any
difference in form as compared to the regulation upon which the
limit or requirement is based.
(ii) The permit shall state that where the limitation, standard, or
requirement proposed for incorporation into the permit is more
stringent than an underlying regulatory provision (including a
provision of the applicable implementation plan), the more stringent
provision incorporated into the permit governs and is fully
enforceable.
(iii) "Emission limitations and standards" includes those
operational requirements and limitations that are applied to assure
that applicable pollution control requirements are achieved and
maintained.
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(2) Permit duration. Permits shall be issued for a fixed term of 5 years
in the case of affected sources under Title IV, and for a term not to
exceed 5 years in duration in the case of all other sources. When a
permit expires at the end of *' s term, requirements contained within it
are considered, to the extent allowed by State law, to remain in effect
until supplemented by the issuance of another Part 70 permit, provided
that the source has filed a timely and complete application for renewal.
Permit requirements will not remain in effect where inconsistent with
State law or as provided in Part 71A for the acid rain portions of a
permit.
(3) Monitoring and reporting requirements:
(i) The permit shall specify the applicable procedures and methods
under the Act for monitoring and analyzing pollutants regulated at
emissions units, and for determining initial and continuing
compliance with emissions limitations, standards, requirements, and
prohibitions under the Act. Samples and measurements taken for the
purpose of monitoring shall be representative of the monitored
activity.
(A) The permit program shall incorporate emissions monitoring
and analysis procedures or test methods specified by EPA,
including any procedures and methods promulgated pursuant to
section 504(b) of the Act.
(B) Such procedures and methods shall be specified where
applicable and appropriate in permits issued pursuant to this
part.
(C) The permit shall specify requirements concerning the
proposed use, maintenance, and installation, when appropriate,
of monitoring equipment or methods.
(D) The permit shall specify required monitoring including
type, intervals, and frequency sufficient to yield data which
are representative of the monitored activity including, when
appropriate, conti uous monitoring.
(E) Records of monitoring information shall include the
following.
(?) The date, place as defined in the permit, and time of
sampling or measurements.
(//) The individual(s) who performed the sampling or
measurements.
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(777) The date(s) analyses were performed.
(iv) The individual(s) who performed the analyses.
(v) The analytical techniques or methods used.
(vi) The results of such analyses.
(ii) Permits shall contain such monitoring, recordkeeping, and
reporting requirements as necessary to implement this Part including
the requirements specified in Parts 71A through 74 for affected
sources under the acid rain program. Reports of any required
monitoring must be submitted no less often than every 6 months.
Monitoring reports must present the required data in a format
consistent with the underlying standard with all necessary
calculations and conversions done by the permittee. All instances
of noncompliance must be clearly identified. All required reports
must be certified by a responsible official consistent with
section 70.5(b)(10).
(iii) The permit shall require prompt reporting of upsets as defined
in the permit, including the cause of such upset, and any corrective
actions or preventative measures taken.
(iv) The permittee shall give advance notice to the permitting
authority of any planned changes in the permitted facility or
activity which may result in noncompliance with permit requirements.
(v) Any action not authorized by the permit or the Act which might
endanger health or the environment shall be reported orally to the
permitting authority by the source within 24 hours of occurrence and
shall be reported in writing within 5 days of occurrence.
(vi) Monitoring, recordkeeping, and reporting shall use consistent
terms, units, averaging periods, and other statistical conventions
consistent with the applicable emissions limitations and other
requirements contained in the Part 70 permit.
(vii) Permits shall contain compliance certification requirements,
in accordance with paragraph (c)(6).
(viii) Permits shall require progress reports, to be submitted no
less frequently than semiannually, or such more frequent periods as
specified in the underlying regulation, which include the following.
(A) Required and actual dates for achieving the activities,
milestones, or compliance required by the schedule of
compliance.
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(B) An explanation of why any deadlines were not met, and any
preventive or corrective measures adopted.
(ix) The requirement for semiannual progress reports may be
abbreviated by the permitting authority for sources complying with
all applicable emission standards, limitations, prohibitions, or
other federally-enforceable requirements, including the deadlines
required by the source's schedule of compliance.
(x) Monitoring results shall be reported at the intervals specified
elsewhere in the permit. If the permittee monitors any pollutant
more frequently than required by the permit using test-approved
procedures, or as specified in the permit, the results of this
monitoring shall be included in the calculation and reporting of the
data submitted.
(xi) Where the permittee becomes aware that it failed to submit any
relevant facts in a permit application, or submitted incorrect
information in a permit application or in any report to the
permitting authority, it shall promptly submit such facts or
information.
(xii) The permittee shall retain records of all monitoring
information including all calibration and maintenance records and
all original strip chart recordings for continuous monitoring
instrumentation, copies of all reports required by the permit, and
records of all data used to complete the application for the permit,
for a period of at least 5 years from the date of the sample,
measurement, report, or application.
(4) A condition prohibiting emissions exceeding any allowances that the
source lawfully holds under the acid rain program, pursuant to Title IV
of the Act.
(i) No permit revision shall be required for increases in emissions
that are authorized by allowances acquired pursuant to the acid rain
program.
(ii) Any such increase authorized under the acid rain program may
not be inoKoorated into the permit if it would cause noncompliance
with any otner requirement under the Act, such as emissions
limitations in the applicable SIP or increment requirements under
the prevention of significant deterioration (PSD) program.
(iii) Any such allowance shall be accounted for according to the
procedures established in the (acid rain regulations).
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(5) A severability clause to ensure the integrity of the various permit
requirements in the event of a challenge to any portions of the permit.
(6) Clauses stating the following.
(i) Duty to comply. The permittee must comply with all conditions
of this permit. Any permit noncompliance constitutes a violation of
the Act and is grounds for enforcement action; for permit
termination, revocation and reissuance, or modification; or denial
of a permit renewal application.
(ii) Need to halt or reduce activity not a defense. It shall not be
a defense for a permittee in an enforcement action that it would
have been necessary to halt or reduce the permitted activity in
order to maintain compliance with the conditions of this permit.
(iii) Duty to mitigate. The permittee shall take all reasonable
steps to minimize or prevent any emissions release in violation of
the permit which has a reasonable likelihood of adversely affecting
human health or the environment.
(iv) Proper operation and maintenance. The permittee shall at all
times properly operate and maintain all facilities and control
systems (and related appurtenances) which are installed or used by
the permittee to achieve compliance with the conditions of this
permit. Proper operation and maintenance also includes adequate
laboratory controls and appropriate quality assurance procedures.
This provision requires the operation of back-up or auxiliary
facilities or similar systems which are installed by a permittee
only when the operation is necessary to achieve compliance with the
conditions of the permit.
(v) Permit actions. This permit may be modified, revoked and
reissued, or terminated for cause. The filing of a request by the
permittee for a permit modification, revocation and reissuance, or
termination, or a notification of planned changes or anticipated
noncompliance does not stay any permit condition.
(vi) Property rights. This permit does not convey any property
rights of any sort, or any exclusive privilege.
(vii) Duty to provide information. The permittee shall furnish to
the permitting authority, within a reasonable time, any information
which the permitting authority may request to determine whether
cause exists for modifying, revoking and reissuing, or terminating
the permit or to determine compliance with the permit. The
permittee shall also furnish to the permitting authority upon
request, copies of records required to be kept by the permit.
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§70.6(b) Federally Enforceable Requirements.
All provisions in a Part 70 permit that are enforceable as a practical
matter and are related to the purposes and provisions of the Act are presumed
to be enforceable by the United States and citizens under the Act, regardless
of whether they are more stringent than required by the Act or by EPA
regulations; provided that where a State permitting authority specifically
designates such more stringent provisions that it wishes not to make
federally-enforceable, such provisions shall not be enforceable under the Act.
§70.6(c) Compliance Determination.
All Part 70 permits shall contain the following elements with respect to
compliance.
(1) Requirements for monitoring and analysis of Part 70 pollutants
regulated under the Act, including any prescribed by rule by the
Administrator, sufficient to determine if each emissions unit of the
source complies with any applicable emission limits, standards,
requirements, or prohibitions on a continuing basis. States may
establish testing requirements based on level of emissions expected,
testing of similar units, likelihood of noncompliance, or other criteria
submitted to and approved by the Administrator.
(2) Compliance certification, reporting, and recordkeeping requirements
sufficient to assure compliance with the Part 70 permit terms and
conditions. Any document (including reports) required by a Part 70
permit shall contain a certification by a responsible official or, for
requirements under Title IV of the Act a designated representative, of
the permittee consistent with section 70.5(b)(10).
(3) Inspection and entry requirements that the permittee shall allow the
permitting authority, or an authorized representative (including an
authorized contractor acting as a representative of the Administrator),
upon presentation of credentials and other documents as may be required
by law to perform the following.
(i) Enter upon the permittee's premises where a regulated facility
or activity is located or conducted, or where records must be kept
under the conditions of this permit.
(ii) Have access to and copy, at reasonable times, any records that
must be kept under the conditions of this permit.
(iii) Inspect at reasonable times any facilities, equipment
(including monitoring and control equipment), practices, or
operations regulated or required under this permit.
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(iv) Sample or monitor at reasonable times, for the purposes of
assuring permit compliance or as otherwise authorized by the Act,
any substances or parameters at any location.
(4) A schedule of compliance.
(5) Progress reports, as described in paragraph (a)(3)(viii).
(6) Requirements for compliance certification of emission standards,
limitations, requirements, prohibitions, or work practices, including the
following.
(i) The frequency (not less than annually or such more frequent
periods as specified in the underlying requirement) of submissions
for certifications.
(ii) A means for assessing or monitoring the continuing compliance
of the source with its emissions standards, limits, prohibitions,
and work practices.
(iii) A requirement that the compliance certification describe the
following.
(A) The applicable requirements that are the basis of the
certification.
(B) The current compliance status.
(C) Whether compliance over the reporting (certification)
period was determined by continuous or intermittent means.
(D) For any noncompliance, specification of the exact dates of
noncompliance and the methods used to determine noncompliance,
as well as the probable cause of noncompliance and the
corrective and preventive measures adopted.
(E) The methods used for determining compliance, currently and
over the reporting period, and whether the method used is the
test method for initial compliance or a means for determining
continuing compliance.
(F) Such other factors as the permitting agency may require.
(iv) A requirement that all compliance certifications showing
noncompliance be submitted to EPA as well as the permitting
authority. In the case of a certification for an affected source
under the acid rain program, the certification shall be made by the
designated representative of the affected source.
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(7) Such other provisions as the permitting authority may require.
§70.6(d) Flexible Source Operation. .
(1) The permitting authority shall issue permits which allow changes to a
permitted facility without requiring a permit revision if those changes
are not modifications under any provision of Title I of the Act and do
not exceed the emissions allowable under the permit, whether expressed
therein as a rate of emissions or in terms of total emissions for any
time frame addressed in the permit.
(2) The permitting authority shall meet the requirement contained in
paragraph (1) by the following.
(i) Issuing a permit that would define the range of operational
parameters allowed by the permit, and evaluating and assuring
compliance under each operating scenario identified by the source
with all requirements under the Act. This shall include the
identification of all applicable emissions limitations, standards,
other requirements, and prohibitions that would apply to each
emissions unit, so as to ensure enforceability under each scenario.
(ii) Not allowing changes that would constitute modifications,
reconstructions, or changes in the method of operation that would
subject the source to review under other programs, including those
for the prevention of significant deterioration (40 CFR Part 51.166
and 40 CFR Part 52.21), nonattainment new source review
(40 CFR Part 51.16 and 40 CFR Part 52.29), emissions standards for
hazardous air pollutants promulgated pursuant to section 112 of the
Act (40 CFR Parts 61 and 63) or section 111 of the Act (40 CFR Part
60), or requirements under the acid rain program without appropriate
review under those programs and permit revision procedures under
this section.
(iii) Not allowing changes in the operation of a facility that would
increase either the rate of emissions or total emissions beyond what
are allowed under any timeframe addressed by the permit.
(iv) Providing that the permitting authority and EPA receive advance
written notification describing the proposed changes, their effects,
any requirements that would be applicable to the source as a result
of the changes, all reporting and monitoring, and compliance
certification requirements necessary to ensure compliance with all
newly applicable requirements, not less than 7 working days prior to
making such changes.
(v) Accomplishing the timely update of the Part 70 permit pursuant
to the same procedures for processing major permit amendments
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contained in section 70.7(f)(3) and (4).
§70.6(e) Reopem'ngs.
Each permit shall address reopenings, consistent with the requirements of
sections 70.6(a) and 70.7(g).
§70.6(f) General permits.
The permitting authority may, after notice and opportunity for public
hearing, issue a general permit covering numerous similar sources. Any
general permit shall comply with all requirements applicable to conventional
Part 70 permits. Any source covered by a general permit must apply to the
permitting authority for use of the general permit.
§70.6(g) Temporary Sources.
The permitting authority may issue a single permit authorizing emissions
from similar operations by the same source owner or operator at multiple
temporary locations. No such permit shall be issued unless it meets the
following conditions.
(1) Includes conditions that will assure compliance with all applicable
requirements of the Act at all authorized locations.
(2) Requires the owner or operator to notify the permitting authority
60 days in advance of each change in location.
(3) Is truly temporary, which is generally presumed to contemplate at
least one change of location within the term of the permit.
(4) Does not address any affected source under Title IV.
(5) Complies with all other provisions of this section.
§70.6(h) Permit ShieTd.
(I) The permitting authority may provide that compliance with the
Part 70 permit that has been issued under procedures for original permit
issuance in sections 70.7 and 70.8 shall be deemed in compliance with
other applicable provisions of the Act if either of the following
conditions are met.
(i) The permit includes the applicable requirements of such
provisions.
(ii) The permitting authority in acting on the permit application
makes a determination relating to the permittee that the specified
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provisions referred to in such determination are not applicable to
the source and the permit includes the determination or a concise
summary thereof. Consistent with section 408(a), no such
determination is authorized with regard to applicable requirements
of the acid rain program.
(2) Nothing in this subsection or in any Part 70 permit shall alter or
affect the following.
(i) The provisions of section.303 of the Act (emergency orders),
including the authority of the Administrator under that section.
(ii) The liability of an owner or operator of a source for any
violation of applicable requirements prior to or at the time of
permit issuance.
(iii) The applicable requirements of the acid rain program,
consistent with section 408(a).
§70.6(i) Property Limitation.
The issuance of a permit does not convey any property rights of any sort,
or any exclusive privilege.
40 CFR 70.7
Permit Issuance, Renewal, Revisions, and Reopenings
§70.7(a) Action on Application.
(I) No permit, permit modification, permit renewal, or permit reopening
may be issued if any of the following conditions apply.
(i) When the conditions of the permit do not provide for compliance
with the applicable requirements of the Act, or regulations
promulgated under Act.
(ii) Where the Administrator has objected to issuance of the permit
under section 70.8(c).
(iii) Where the permitting authority has not received a complete
application for a permit except for general permits.
(iv) Where the permitting authority has not met the public
participation procedures for permit issuance contained in
section 70.7(j).
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(2) Except as provided under the initial transition plan provided for
under section 70.4(b)(ll) or in Part 71A for the permitting of affected
sources under the acid rain program, the program shall provide that the
permitting authority take final action on each permit application, or
request for permit modification or renewal, within 18 months after
receiving a complete application.
(3) The permitting authority shall promptly provide notice to the
applicant of whether the application has been ruled complete. Unless the
permitting authority provides an applicant a notice of incompleteness
(outlining additional information requirements within 30 days of receipt
of an application, the application shall be deemed complete.
(4) The permitting authority shall ensure a fact sheet is prepared for
every draft proposed and proposed permit. The fact sheet shall briefly
set forth the principal facts and the significant factual, legal,
methodological, and policy questions considered in preparing the draft
proposed permit. The permitting authority shall send this fact sheet to
any other person expressing an interest.
The fact sheet shall include the following when applicable.
(i) A brief description of the type of stationary source or sources
and activities which are the subject of the draft permit.
(ii) The type and quantity of pollutants which are proposed to be
or are being emitted.
(iii) A brief summary of the basis for the draft permit conditions
including references to applicable statutory or regulatory
provisions and appropriate supporting references to the
administrative record.
(iv) Reasons why any requested variances or alternatives to
required standards do or do not appear justified.
(v) Name and telephone number of a person to contact for additional
information.
(5) The submittal of a complete application shall not affect the
requirement that any source have a preconstruction permit under
sections 110, 165, 172, or 173 of the Act.
§70.7(b) Requirements for a Permit.
(I) Except as provided in the following sentence, no Part 70 source may
operate after the time that it is required to submit a timely and
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complete application under an approved permit program except in
compliance with a permit program approved under this Part or Part 71.
The program shall provide that if a Part 70 source submits a timely and
complete application for permit issuance modification or renewal, the
source's failure to have a Part 70 permit is not a violation of this Part
until the permitting authority takes final action on the permit
application, except as noted below.
(i) This protection shall cease to apply if final action on the
permit application has been delayed by the failure of the applicant
to submit any additional information requested in writing subsequent
to the completeness determination to process the application by the
deadline specified by the permitting authority.
(ii) This process shall not affect the requirement that any source
have a preconstruction permit under sections 110, 165, 172, or 173
of the Act.
(iii) A Part 70 source being constructed or modified within the
meaning of those terms in Title I of the Act shall be required to
obtain a Part 70 permit prior to commencing operation.
(iv) The application shield shall not apply to an affected source
that is not operating in accordance with its permit application
compliance plan, and the acid rain program requirements of Parts 71A
through 74.
(2) The protection provided by subparagraph (1) to operate without a
permit shall also apply where the application or requested additional
information is submitted less than three months after the required
submittal date. Nothing in this paragraph shall be deemed to prevent the
permitting authority or EPA from bringing an enforcement action and
assessing penalties against a source for failing to submit a timely
application. In such case, penalties may be assessed for the entire
period from the time the application was required to be submitted to the
time a complete application was actually submitted.
(3) The protection provided by subparagraph (1) to operate without a
permit shall also apply where the source submits a timely application but
which the permitting authority determines to be incomplete despite good
faith effort on the part of the source; provided, that the source cures
the defect during the expeditious time period specified by the permitting
authority. Nothing in this paragraph shall be construed to limit the
exception to such protection that is set forth in subparagraph (1)(A).
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§70.7(c) Permit Reissuance and Expiration.
The program shall provide the following.
(1) Permits being reissued are subject to the same procedural
requirements, including those for public participation and Federal
oversight, as apply to initial permit issuance.
(2) Permit expiration terminates the source's right to operate unless a
timely and complete renewal application is submitted consistent with
paragraph (b). Expiration does not, however, extinguish the source's
obligation to perform the responsibilities that were specified under the
permit in situations where paragraph (b) applies, such as provision of
external offsets or compliance with emission limitations, to the extent
allowed by State law.
§70.7(d) Permit Modifications.
(1) Notwithstanding sections 70.6(d)., 70.7(e) and (f), any change to the
fundamental design of the control equipment, to the methods for
monitoring, reporting, and analyzing emissions for compliance purposes
approved for operation, or to milestones with the schedule of compliance
for a non-complying source in the current version of the Part 70 permit
would be subject to this paragraph as a permit modification.
(2) Permit modifications shall be subject to the same procedural
requirements, including those for public comment and Federal oversight,
as original permit issuance.
(3) Alterations to the permitted facility or its activities which would
go beyond the terms of the original permit and do not qualify as minor or
major permit amendments require permit modifications.
§70.7(e) Minor Permit Amendments.
A minor permit amendment is a permit revision that is not a permit
modification or major permit amendment and does not change any enforceable
requirement of the permit. Minor permit amendments shall be done by the
permitting authority administratively and consistent with the requirements of
paragraph 70.7(f)(3) and (4) without being subject to the procedural
requirements applicable to a permit modification. Notwithstanding, the permit
shield in section 70.6(h) does not apply for changes qualifying under section
70.2(q)(2). The principles governing what constitutes minor or major permit
amendments for purposes of the acid rain portion of permit shall be governed
by Part 71A.
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§70.7(f) Major Permit Amendments.
(1) Applicability. Revisions to Part 70 permits shall qualify as major
permit amendments and shall be processed according to this paragraph
under the following curcumstances.
(i) The total emissions allowed under the permit of any regulated
pollutant for emissions units subject to limitations or requirements
under the permit would increase but by not more than any of the
following amounts since the time of permit issuance or the most
recent permit renewal.
(A) Ten tpy.
(fl) The applicable de minimis level established pursuant to
section 112(a)(5).
(CJ Forty percent of the applicable threshold emissions levels
for defining major source.
(D) Any other level determined by the Administrator by rule.
(ii) No change would occur in the permit which would prevent the
permit from assuring compliance with any applicable requirement of
the Act, including but not limited to the applicable SIP,
section 111, Title IV and section 112.
(2) Required Notice.
(i) At least 7 working days before making the proposed change, the
source applicant shall submit a notice to the permitting authority,
the Administrator, all other parties previously offering comment on
the issuance of the Part 70 permit now in effect, and any other
parties designated by the permitting authority who have reasonably
expressed interest. The permitting authority may provide in its
regulation a different time frame for notices involving emergencies.
(ii) The notice in (i) above must describe in detail the exact
nature and timing of the change including but not limited to any
changes in plant configuration or emission units, all pollutants
emitted as a result of the change and anticipated emission rates, a
description of any newly installed control equipment, all SU and
Federal air pollution control requirements applicable as a re,alt of
the change, any necessary changes to the permittee's monitoring,
reporting, and compliance certification requirements and any other
information reasonably needed by the permitting authority to process
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the permit revision described in subparagraph (3). This notice must
be signed and certified by a responsible official consistent with
section 70.5(b)(10).
(iii) The source may implement the proposed change unless the
permitting authority reasonably objects on the basis that the
proposed change does not qualify as a major permit amendment or
would not meet all applicable requirements of the Act. In the event
that the source fails to demonstrate to the satisfaction of the
permitting authority that the proposed change qualifies for
processing under subparagraph (3), the proposed change shall be
processed as a permit modification under the procedures set forth in
paragraph (d). In such event the change shall not occur until the
permit is revised following the EPA review period.
(3) Permit Revision.
(i) The permitting authority shall take no more than 60 days to
revise the Part 70 permit and may use administrative procedures to
incorporate the changes comprising the major permit amendment,
provided that any permit revisions accomplished be designated as
having been made pursuant to this subsection.
(ii) The permitting authority shall submit a copy of the revised
permit to the Administrator and make it readily available at the
offices of the permitting authority.
(4) Source Liability.
(i) Provisions of a Part 70 permit added pursuant to this section
do not qualify a source of the permit shield contained in section
70.6(h), or compliance with such provisions does not insulate a
source from liability from violations that already occurred from
pre-existing requirements.
(ii) Compliance with the notice requirements contained in
subparagraph (2) shall qualify a source for the protection described
in paragraph (b).
(iii) The permitting authority shall reopen a Part 70 permit
pursuant to paragraph (g) whenever the permitting authority
determines that any permit revision accomplished pursuant to this
section does not assure compliance with all applicable requirements
of the Act or did not qualify for processing under this section.
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§70.7(g) Reopenings for Cause.
(1) Each permit issued shall include provisions addressing the
conditions for revision prior to the expiration of the permit. Such
revisions shall be made as expeditiously as practicable. Reopenings
shall be performed for the following.
(i) Additional requirements under the Act become applicable t' the
Part 70 source that is a major source and for which 3 or more years
remain on the original term of the permit. Such revisions shall be
made not later than 18 months after the promulgation of relevant
standards or regulations.
(ii) Additional requirements become applicable to an affected source
under the acid rain program including excess emissions requirements.
Excess emissions offset plans shall be deemed to be incorporated
into the permit upon approval by the Administrator.
(iii) Revision is determined by the permitting authority or EPA to
be necessary to protect the public health or welfare and the
environment.
(iv) The permit contains a material mistake made in establishing the
emissions standards or limitations, or other requirements of the
permit.
(v) The EPA determines that the peririt must be revised to assure
compliance with the applicable requirements of the Act.
(vi) Such other causes as EPA finds appropriate, subject to the
procedures provided in this section.
(2) Reopenings may also be conducted for such cause as is deemed
appropriate by the permitting authority.
(3) Reopenings shall be considered part of the permit issuance process
and subject to standard permit issuance procedures.
(4) Reopenings shall not be initiated before a notice of such intent is
provided to the affected Part 70 source by the permitting authority at
least 30 days in advance of the date that the permit is reopened.
§70.7(h) ^openings for Cause by EPA,
(I) If the Administrator finds i ;t cause exists to terminate, modify, or
revoke and reissue a permit pursuant to paragraph (g), the Administrator
shall notify the permitting authority and the permittee of such finding
in writing.
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(2) The permitting authority shall, within 90 days after receipt of
notification, forward to EPA a proposed determination of termination,
modification, or revocation and reissuance, as appropriate. The
Administrator may extend this 90-day period for an additional 90 days if
he finds that a new or revised permit application is necessary or that
the permitting authority must require the permittee to submit additional
information.
(3) The Administrator shall review the proposed determination within 90
days of receipt. The permitting authority shall have 90 days from
receipt to resolve any objection that EPA makes.
(4) If the permitting authority submits no proposed determination
pursuant to subparagraph (2) or fails to resolve any objection pursuant
to subparagraph (3), the Administrator shall terminate, modify, or revoke
and reissue the permit after taking the following actions.
(i) Providing at least 30 days' notice to the permittee in writing
of the reasons for any such action. This notice may be given during
the procedures in subparagraphs (1), (2) and (3).
(ii) Providing the permittee an opportunity for comment on the
Administrator's proposed action and for a hearing, which shall be
held after the exhaustion of the procedures in subparagraphs (1),
(2) and (3).
(5) The EPA's decision to terminate, modify or revoke and reissue the
permit shall constitute final action for purposes of judicial review
under section 307 of the Act.
§70.7(i) Permit Transfer.
This permit is not transferable to any person except after notice to the
permitting authority. The permitting authority may require modification or
revocation and reissuance of the permit to change the name of the permittee
and incorporate such other requirements as may be necessary under the Act.
§70.7(j) Public Participation in Permit Issuance.
All permit issuance proceedings, including renewals, modifications, and
reopenings, shall provide an opportunity for public participation on the draft
proposed permit. The State shall develop such procedures after considering
the requirements of 40 CFR 124 and the adopted procedure shall as a minimum
include the following:
(1) Availability for public inspection in at least one location in the
community in which the source is located of the information submitted by
the applicant, the fact sheet required in section 70.7(a)(4), and of the
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permitting authority's analysis of the proposed action.
(2) A public notice, by advertisement in the area affected, of the
opportunity for submittal of public comment and for a public hearing with
a copy of the notice to the Administrator, unless EPA agrees not to
require the notice for some or all permits.
(3) A period of no less than 30 days for submittal of public comment.
(4) A public hearing, deemed appropriate by the permitting authority
that a request for such has been made which raises significant issues
affecting the terms and conditions of the permit and would contribute to
the permitting exercise.
(5) Such notice and opportunity for participation by other States as is
provided for by section 70.8.
40 CFR 70.8
Permit Review by EPA and Affected States
§70.8(a) Transmission of Information to the Administrator.
(1) The permit program shall require that the permitting authority shall
provide or require the applicant to provide to the Administrator a copy
of each permit application, including the compliance plan, and each
proposed permit and final permit.
(2) If the permitting authority and Administrator so agree, the
permitting authority may submit to the Administrator a permit application
summary form and any relevant portion of the permit application or
compliance plan, in place of the full application and compliance plan
specified in subparagraph (1).
(3) The Administrator may waive the requirements of paragraphs (a)(l) and
(b)(l), for any category of sources (including class, type, or size
within such category) other than major sources:
(i) At the time of approval of a State program pursuant to this
Part.
(ii) By regulation.
(4) Any approved permit program shall keep such records and submit to the
Administrator such information, including but not limited to copies of
any comments on draft proposed permits, as the Administrator may
reasonably require to ascertain whether the State program complies with
the requirements of the Act or of this Part.
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§70.8(b) Affected State Review.
(1) The program shall provide that the permitting authority give notice
of each draft proposed permit to any affected State on or before the time
that the permitting authority provides this notice to the public under
section 70.7(j).
(2) The program shall provide that the permitting authority, as part of
the submittal of the proposed permit to the Administrator, shall notify
the Administrator and any affected State in writing of any refusal by the
permitting authority to accept any recommendations for the proposed
permit that the affected State submitted during the public comment
period. The notice shall include the permitting authority's reasons for
not accepting any recommendation.
§70.8(c) EPA Objection.
(I) The Administrator shall object, pursuant to section 505(b) of the
Act, to the issuance of any proposed permit determined by the
Administrator to not be in compliance with applicable requirements of the
Act, including the requirements of Title IV, Title V, and any other
requirement needed to implement the applicable SIP. No permit shall be
issued for the purpose of Part 70 if the Administrator objects to its
issuance in writing within 45 days of receipt of the proposed permit and
notice pursuant to paragraphs (a) and (b).
(2) Any EPA objection under subparagraph (1) shall include a statement of
the Administrator's reasons for objection and a description of the terms
and conditions which the permit must include to respond to the
objections. The Administrator shall provide the permit applicant a copy
of the objection.
(3) Failure of the permitting authority to do any of the following shall
constitute grounds for an objection.
(i) Submit the required items and notices under paragraphs (a) or
(b).
(ii) Submit any information necessary to adequately review the
permit.
(iii) Issue or deny a permit within 18 months of receiving a
complete application.
(4) If the permitting authority fails, within 90 days after the date of
an objection under subparagraph (1), to submit a permit revised to meet
the objection, the Administrator shall issue or deny the permit in
accordance with the requirements of 40 CFR 71. If the permitting
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authority submits a revised permit within this time period that
partially, but not completely, meets the Administrator's objection, the
Administrator may grant further time for revision of the permit, not to
exceed an additional 90 days.
§70.8(d) Public Petitions to the Administrator.
If the Administrator does not object in writing, pursuant to paragraph
(c), the program shall provide that any person may petition the Administrator
within 60 days after the expiration of the Administrator's 45-day review
period to take such action. Any such petition shall be based only on
objections to the permit that were raised with reasonable specificity during
the public comment period provided for in section 70.7(j), unless the
petitioner demonstrates that it was impracticable to raise such objections
within such period, or unless the grounds for such objection rose after such
period. A petition for review does not stay effectiveness of the permit and
its requirements.
§70.8(e) Prohibition on Default Issuance
Consistent with section 70.4(b)(3)(viii), for the purposes of Federal law
and Title V of the Act, no permit will issue until affected States and EPA,
respectively, have had an opportunity to review the proposed permit as
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(3) The State shall provide that the revenue generated from permit fees
will be used solely to support the development and implementation of the
air pollution control program in all areas relevant to the permit
program, including support of local agencies which do not issue permits
directly.
§70.9(b) Fee Determination.
The adequacy of the fee program will be determined by whether it meets
either of the following tests.
(1) Program Support Test. A fee program shall be considered adequate
under this test if it results in the collection and retention of revenues
sufficient to support the direct and indirect costs of developing and
implementing the permitting program (considering any associated overhead
charges for personnel, equipment, buildings, and vehicles, exclusive of
any Federal funding), including but not limited to the following
activities.
(i) Reviewing and acting on any application for a permit.
(ii) Implementing and enforcing the terms of any Part 70 permit,
whether before or after the date of enactment of the Clean Air Act
Amendments of 1990 (not including any court costs or other costs
associated with any enforcement action).
(iii) Emissions and ambient monitoring including adequate resources
to audit and inspect source-operated monitoring programs.
(iv) Preparing generally applicable regulations, or guidance.
(v) Modeling, analyses, or demonstrations.
(vi) Preparing inventories and tracking emissions.
(vii) Providing support to Part 70 sources under the Small Business
Stationary Source Technical and Environmental Compliance Assistance
Program contained in section 507.
(2) Cost Per Ton Test.
The fee program shall result in the annual (or equivalent)
collection and retention, in the aggregate, from all sources subject
to the permitting program, of an amount not less than $25 per ton,
as adjusted pursuant to the criterion set forth in (v) below, of
each regulated pollutant that the permitted facilities have the
potential to emit.
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(i) For the purposes of determining the required minimum fee
amount, carbon monoxide shall be excluded from the definition
of "regulated pollutant."
(ii) In determining the required minimum fee amount, the
permitting authority is not required to include any amount of
regulated pollutant that the source is permitted to emit in
excess of four thousand (4,000) tons per year of that regulated
pollutant.
(iii) For those regulated pollutants emitted by permitted
facilities, but to which no State or Federal air pollution
control requirements are applicable, the emissions fee
requirements contained in this section remain applicable. The
plan may, at the State's discretion, include criteria, such as
de minimis amounts, to exclude any such emissions of regulated
pollutants from the fee requirement, to the extent that such
exemptions are consistent with the resource adequacy
determination required by section 70.4(b)(8).
(iv) For the purpose of determining the total tons of
regulated pollutant that the permitted facilities in the State
emit, the State shall base its calculation on the potential to
emit all of the permitted facilities in the State. The State
may use another method for determining total emissions (for
example using actual emissions in the calculation) only if the
State demonstrates to EPA's satisfaction the following.
(A) The State's fee program will generate fees at a level
over time sufficient to meet the program support
requirements of section 70.9(b)(l).
(B) The Part 70 permit program in the State will assure
that the State has sufficient information to determine the
emissions of each regulated pollutant from all permitted
facilities.
(v) The program shall provide that the fee calculated pursuant
to this test shall be increased (consistent with the need to
cover reasonable costs) in December of each year beginning
after the enactment of the Clean Air Act Amendments of 1990 by
the percentage, if any, by which the Consumer Price Index for
the most recent calendar year ending before the beginning of
such year exceeds the Consumer Price Index for the calendar
year 1989.
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(vi) The Administrator reserves the right to adjust the fees
required pursuant to this test upward if significant amounts of
toxic pollutants are subject to permit review.
§70.9(c) Program Flexibility.
Nothing in the cost per ton provisions of paragraph (b)(2) shall restrict
a permitting authority from collecting more or less than the amount determined
under paragraph (b)(2)(1) from any one permitted facility or any class or
category of permitted facilities, as determined by the permitting authority,
provided the permitting authority collects a total amount of fees sufficient
to meet the program support requirements of paragraph (b)(l). For example,
States may reduce fee amounts for small businesses as authorized by
section 507(f) of the Act.
§70.9(d) fee Demonstration.
The permitting authority shall provide a demonstration that the fee
schedule selected will result in the collection and retention of fees in an
amount sufficient to satisfy the applicable tests specified in paragraphs
70.9(a) and (b). The Administrator will not approve a demonstration pursuant
to paragrpah (b)(l) unless it contains an initial accounting and periodic
updates as required by the Administrator of how fee revenues are used to meet
the various functions of the permitting program.
40 CFR 70.10
Federal Oversight and Sanctions
§70.10(a) Failure to Submit an Approvable Program.
If a State fails to submit a fully approvable Part 70 program, or
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
Part 70 program.
(1) At any time the Administrator may apply any one of the sanctions
specified in section 179(b) of the Act.
(2) Within 18 months after the date required for submittal or the date of
disapproval by the Administrator, the Administrator shall apply such
sanctions in the same manner and with the same conditions as are
applicable in the case of a determination, disapproval, or finding under
section 179(a) of the Act.
The Administrator shall promulgate a program for such State if full approval
of a Part 70 program has not taken place within 2 years after the date
required for such submission.
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§70.10(b) State Failure to Administer or Enforce.
Any State program approved by the Administrator shall at all times be
conducted in accordance with the requirements of this part and any agreement
between the State and the Administrator concerning operation of the program.
(1) Whenever the Administrator makes a determination that a permitting
authority is not adequately administering or enforcing a Part 70 program,
or any portion thereof, the Administrator shall notify the authority of
the determination and the reasons therefore. The Administrator shall
publish such notice in the FEDERAL REGISTER.
(2) If, after 90 days from issuing the notice under subparagraph (1), the
permitting authority fails to take action to assure adequate
administration and enforcement of the program, the Administrator may take
any one or more of the following actions.
(i) Withdraw approval of the program or portion thereof using
procedures consistent with section 70.4(e).
(ii) Apply any of the sanctions specified in section 179(b) of the
Act.
(iii) Promulgate, administer, or enforce a program or partial
program.
(3) Whenever the Administrator has made the finding and issued the notice
under subparagraph (1), the Administrator shall apply the sanctions under
section 179(b) of the Act within 18 months after that notice. These
sanctions shall be applied in the same manner and subject to the same
deadlines and other conditions as are applicable in the case of a
determination, disapproval, or finding under section 179(a) of the Act.
(4) Whenever the Administrator has made the finding and issued the notice
under subparagraph (1), the Administrator shall, unless the State has
corrected such deficiency within 18 months after the date of such
finding, promulgate a Part 70 program within 2 years of the date of such
finding.
(5) If the permitting authority's failure is a failure to act on one or
more timely and complete applications (including renewal applications)
within 18 months of the date that a complete application was filed, the
Administrator may issue or deny the permits as appropriate.
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(6) Nothing in this section shall limit the Administrator's authority to
take any enforcement action against a source for violations of the Act or
a permit issued under rules adopted pursuant to this section in a State
which has delegated responsibility by EPA to implement a Part 71 program.
§70.10(c) Criteria for Withdrawal of State Programs.
(I) The Administrator may withdraw program approval when the approved
program no longer complies with the requirements of this Part, and the
permitting authority fails to take corrective action. Such
circumstances, in whole or in part,, include the following.
(i) Where the permitting authority's legal authority no longer meets
the requirements of this part, including the following.
(A) Failure of the permitting authority to promulgate or enact
new authorities when necessary.
(B) Action by a State legislature or court striking down or
limiting State authorities.
(ii) Where the operation of the State program fails to comply with
the requirements of this part, including the following.
(A) Failure to exercise control over activities required to be
regulated under this part, including failure to issue permits.
(B) Repeated issuance of permits which do not conform to the
requirements of this part.
(C) Failure to comply with the public participation
requirements of this part.
(D) Failure to collect, retain, or allocate fee revenue
consistent with section 70.9.
(iii) Where the enforcement program fails to comply with the
requirements of this part, including the following.
(a) Failure to act on violations of permits or other program
requirements.
(b) Failure to seek adequate enforcement penalties or to
collect administrative fines when imposed.
(c) Failure to inspect and monitor activities subject to
regulation.
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§70.10(d) Federal Collection of Fees.
If the Administrator determines that the fee provisions of a Part 70
program do not meet the requirements of section 70-.9, or if the Administrator
makes a termination under paragraph (b)(l) that the permitting authority is
not adequately administering or enforcing an approved fee program, the
Administrator may, in addition to taking any other action authorized under
Title V of the Act, collect reasonable fees from Part 70 sources and/or
permitted fac ities to cover the Administrator's costs of administering the
provisions of ihe permitting program promulgated by the Administrator, without
regard to the requirements of section 70.9.
§70.11 Requirements for Enforcement Authority
All programs in order to be approved under this Part must contain the
following provisions.
(a) Any agency administering a program shall have available the following
remedies for violations of program requirements.
(1) To restrain immediately and effectively any person by order of by
suit in court from engaging in any unauthorized activity which is
endangering or causing damage to public health or the environment.
NOTE: Paragraph (a)(l) requires that permitting authorities have a
mechan*-i (e.g., an administrative cease and :esist order or the ability
to see* ' temporary restraining order) to stop any unauthorized activity
endange. ing public health or the environment.
(2) To sue in courts of competent jurisdiction to enjoin any threatened
or continuing violation of any program requirement, including permit
conditions, without the necessity of a prior revocation of the permit.
(3) To assess or sue to recover in court civil penalties and to seek
criminal remedies, including fines, according to the following.
(i) Civil penalties shall be recoverable for the violation of any permit
condition; any fee or filing requirement; any duty to allow or carry out
inspection, entry or monitoring activities or, any regulation or orders
issued by the permitting authority. These penalties shall be assessable
in at least the amount of $10,000 a day for each violation.
(ii) Criminal fines shall be recoverable against any person who willfully
or negligently violates any applicable standards or limitations; any
permit condition; or any fee or filing requirement. These fines shall be
assessable in at least the amount of $10,000 a day for each violation.
NOTE: States which provide the criminal remedies based on "criminal
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THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL
POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY
negligence," "gross negligence" or strict liability satisfy the
requirement of paragraph (a)(3)(ii).
(iii) Criminal fines shall be recoverable against any person who
knowingly makes any false statement, representation or certification in
any form, in any notice or report required by a permit, or who knowingly
renders inaccurate any monitoring device or method required to be
maintained by the permitting authority. These fines shall be recoverable
in at least the amount of $10,000 for each instance of violation.
NOTE: In many States, the permitting authority will be represented in the
State courts by the State Attorney General or other appropriate legal
officer. Although the permitting authority need not appear in court
actions, he or she should have power to request that any of the above
actions be brought.
(b)(l) The civil penalty or criminal fine(s) (as provided in paragraph
(a)(3) shall be assessable for each instance of violation and, if the
violation is continuous, shall be assessable up to the maximum amount for
each day of violation.
(2) The burden of proof and degree of knowledge or intent required under
State law for establishing violations under paragraph (a}(3), shall be no
greater than the burden of proof or degree of knowledge or intent EPA
must provide when it brings an action under the appropriate Act.
NOTE: For example, this requirement is not met if State law includes
mental state as an element of proof for civil violations.
(c) A civil penalty assessed, sought, or agreed upon by the permitting
authority under paragraph (a)(3) shall be appropriate to the violation.
NOTE: To the extent that agency judgments of settlements provide
penalties in amounts which EPA believes to be substantially inadequate in
comparison to the amounts which EPA would require under similar facts,
EPA, when authorized by the applicable statute, may commence separate
actions for penalties.
Procedures for assessment by the permitting authority of the cost of
investigations, inspections, or monitoring surveys which leads to the
establishment of violations. In addition to the requirements of this
paragraph, the permitting authority may have other enforcement remedies.
The following enforcement options, while not mandatory, are highly
recommended.
(1) Procedures which enable the permitting authority to assess or to sue
any persons responsible for unauthorized activities for any expenses
incurred by the State in removing, correcting, or terminating any adverse
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THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL
POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY
effects upon human health and the environment resulting from the
unauthorized activity, whether or not accidental.
(2) Procedures for the administrative assessment of penalties by the
permitting authority.
(d) Any permitting authority administering a program shall provide for
public participation in the enforcement process by providing either:
(1) Authority which allows intervention ar of right in any civil or
administrative action to ob~ in remedies .ecified in paragraphs (a)(l),
(2) or (3) by any citizen having an interest which is or may be adversely
affected; or
(2) Assurance that the agency or enforcement authority will do the
following.
(i) Not oppose intervention by any citizen when permissive
intervention may be authorized by statute, rule, or regulation.
(ii) Publish notice of and provide at least 30 days for public
comment on any proposed settlement of a the enforcement action.
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