[Federal Register Volume 59, Number 223 (Monday, November 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28292]


[[Page Unknown]]

[Federal Register: November 21, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 63 and 71

[FRL-5106-2]
RIN 2060-AF10

 

Federal Operating Permit Programs; Permits for Early Reductions 
Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rulemaking establishes an interim Federal permitting 
program solely for sources participating in the Early Reductions 
Program under section 112(i)(5) of the Clean Air Act (Act), as amended. 
It is designed to provide a temporary permitting mechanism until such 
time as permanent permitting programs become effective pursuant to 
title V of the Act. Under this interim program, EPA will be able to 
permit early reductions sources in a timely manner, thus ensuring that 
emission reductions achieved are maintained and providing assurance to 
participating sources that they have qualified for the benefits of the 
Early Reductions Program.
    Also promulgated in this rulemaking are two amendments to the Early 
Reductions Rule. The first appends to enforceable commitments made 
under the Early Reductions Program information on emission reduction 
measures employed to achieve early reductions and the second clarifies 
deadlines for submitting post-reduction emission information to EPA.

EFFECTIVE DATE: November 21, 1994.

ADDRESSES: Background Information Document. The background information 
document (BID) for the promulgated standards may be obtained from the 
U.S. EPA Library (MD-35) , Research Triangle Park, North Carolina 
27711, telephone number 919-541-2777. Please refer to ``Federal 
Operating Permit Programs: Permits for Early Reductions Sources--
Background Information for Promulgated Rule'' (EPA-453/R-94-061b). The 
BID contains (1) a summary of changes made to the rule since proposal 
and (2) a summary of all public comments made on the proposed standards 
and EPA's response to those comments.
    Docket. Docket number A-93-08, containing supporting information 
used in developing the promulgated rule is available for public 
inspection and copying between 8:30 a.m. and 3:30 p.m., Monday through 
Friday, at EPA's Air Docket, room M1500, U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC. A reasonable fee may be 
charged for copying.

FOR FURTHER INFORMATION CONTACT: Mr. David Beck, Emission Standards 
Division (MD-13), U.S. Environmental Protection Agency, Research 
Triangle Park, North Carolina 27711, telephone number 919-541-5421.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. Introduction
II. Summary of Significant Comments and Changes Since Proposal
III. Administrative Requirements

I. Introduction

    The Clean Air Act Amendments of 1990 rewrote existing section 112, 
which directs the EPA to establish national emission standards for 
hazardous air pollutants (HAP). A new provision, section 112(i)(5), 
offers to sources that achieve substantial early reductions of HAP 
emissions an extension in the compliance date for applicable standards 
to be promulgated under section 112(d). To help implement this ``Early 
Reductions Program,'' EPA is acting in this notice to promulgate an 
interim, limited scope permit program, pursuant to title V of the Act. 
This interim program will allow EPA to process applications under the 
Early Reductions Program in a timely manner, until such time as 
comprehensive title V permitting mechanisms become available. A 
detailed rationale for this rulemaking accompanied the proposal notice, 
which was published in the Federal Register on December 29, 1993 (57 FR 
68804).

II. Summary of Significant Comments and Changes Since Proposal

    The comment period for the proposed early reductions permits rule 
ended on March 3, 1994, and EPA received five comment letters. Copies 
of the comments reside in the docket for this rulemaking and are 
available for public inspection (see ``Docket'' in the ADDRESSES 
section of this preamble for further information). A summary of public 
comments and EPA's responses to the comments are contained in the 
background information document mentioned in the ADDRESSES section of 
this preamble.
    Consideration of these comments and other deliberations within the 
Agency led to a few changes from the proposed permits rule, although 
none of the changes altered the rule significantly. A brief summary of 
the more notable changes appear in the list below (an expanded 
explanation of these changes is contained in the background information 
document).
    1. A definition of ``post-reduction year'' has been added, as well 
as clarifying language pertaining to deadlines for filing post-
reduction emission information. These changes make clearer the 
requirements for demonstrating that qualifying reductions have been 
achieved, and provide more flexibility to sources that wish to make 
reduction demonstrations before the statutory deadline.
    2. The proposed requirement to submit an application in a 
computerized format, in addition to the typed application, has been 
deleted. The EPA has not yet settled on a computer format for such 
submittals.
    3. The proposed rule contained a provision requiring permittees to 
report any deviations from permit terms or conditions within ten days 
of occurrence. This requirement has been revised to require ``prompt'' 
reporting of deviations, where ``prompt'' will be defined in each early 
reductions permit and will be based on the type and degree of the 
deviation. This is consistent with similar language in the part 70 for 
State title V permit programs.
    4. The procedures for making administrative amendments to existing 
early reductions permits have been revised. The revisions are 
consistent with recently proposed revisions to the administrative 
amendments procedures specified in the part 70 rule for State title V 
programs. The revised procedures clarify the permittee's actions in 
initiating an administrative amendment and set the effective date of an 
amendment at 60 days after receipt by the Administrator of the 
amendment application (assuming the Administrator does not reject the 
amendment prior to that time).
    Also changed under the administrative amendments provisions of the 
rule is the list of actions qualifying as administrative amendments 
(Sec. 71.26(c)(1)). A new provision (Sec. 71.26(c)(1)(v)) allows 
certain additional permit revisions to be treated as administrative 
amendments provided that the Administrator determines, on a case-by-
case basis, that a proposed revision is similar to those qualifying 
actions already specifically listed. The new provision is based upon a 
similar provision in the part 70 rule and is a response to certain 
commenters requests for additional flexibility to make relatively 
insignificant changes at an early reductions source without having to 
wait for a lengthy EPA approval process. Under the new provision, EPA 
would be able to process through administrative amendment procedures 
certain changes not listed in paragraphs Sec. 71.26(c)(1)(i) through 
(iv) but which are ministerial in nature and therefore do not require 
the exercise of judgment on the part of EPA, or review by the public or 
affected States.
    5. Another proposed provision deleted in the final rule was the 
requirement that specialty permit applications contain a statement 
indicating the source's compliance status with any applicable enhanced 
monitoring and compliance certification requirements of the Act. This 
provision was included in the proposal because a similar provision 
appears in the part 70 rule. However, upon further reflection, EPA has 
realized that the provision is not relevant to early reductions permit 
applications. This specialty permit program focuses narrowly on 
implementing the Early Reductions Program for a defined early 
reductions source and associated HAP emissions, and within that context 
the only monitoring and compliance certification requirements 
applicable to the early reductions source will be those delineated in 
the specialty permit issued later to the participating company. Each 
specialty permit will implement the Act directive to provide for 
enhanced monitoring on major sources by specifying monitoring 
requirements tailored to the early reductions source and consistent 
with the characteristics of the Early Reductions Program. Compliance 
certification requirements also will be imposed to comply with title V 
of the Act. However, it is inappropriate to ask a source to discuss, in 
the permit application, its compliance status for these requirements 
because they do not yet exist.
    In the proposed rule preamble, EPA requested comment on whether the 
final early reductions permits rule should contain procedures for minor 
permit revisions. Such procedures would be used to process changes that 
could not be processed as administrative amendments but which encompass 
relatively minor changes to the source or its operation and, therefore, 
would not warrant the longer (12 month) review and issuance process 
allotted to significant source changes. Two commenters requested that 
EPA include minor permit revision procedures in the final rule to 
provide sources the ability to make certain changes in the early 
reductions source quickly, which they consider to be key to remaining 
competitive within their respective industries. The EPA has carefully 
considered the commenters' requests for a more expedited permit 
revision procedure, and has decided not to include such a procedure at 
this time. There are two primary reasons for this decision. First, the 
part 70 permit revision procedures are currently the subject of 
litigation in the D.C. Circuit Court of Appeals. In part as a response 
to this litigation, EPA has proposed revisions to these part 70 
procedures. The current uncertainty over EPA's legal discretion to 
provide for expeditious permit revision procedures cautions against 
providing for any such procedures here in this final rule. Second, as 
stated in the preamble to the proposal of this rule, EPA believes the 
nature of these specialty permits, containing limitations that are 
uniquely tailored to the facility, should reduce the need for permit 
revisions. Another factor that deemphasizes the need for a more 
expedited revision procedure is the fact that a specialty permit will, 
relatively soon after permit issuance, be transferred to the 
jurisdiction of the State, following which it will be subject to the 
revision procedures of the State program.
    The EPA may in the future decide to revise this rule to provide 
more expedited procedures for minor permit revisions. However, EPA 
currently intends await the outcome of the revisions to part 70 before 
taking any such action.
    As noted earlier, this notice also contains amendments to the Early 
Reductions Rule. One of the amendments, proposed along with the early 
reductions permits proposal, is promulgated without change and appends 
to enforceable commitments made under the Early Reductions Program the 
information on emission reduction measures employed to achieve early 
reductions. Such information is required as part of a participant's 
post-reduction emission demonstration. The other amendments mirror the 
changes described in item 1 of the above list pertaining to the post-
reduction emissions demonstration. These amendments make the Early 
Reductions Rule consistent with the permits rule promulgated in this 
notice.

III. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-93-08. The docket is an 
organized and complete file of all the information submitted to, or 
otherwise considered by, EPA in the development of this 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. The docket 
is available for public inspection at the EPA's Air Docket, which is 
listed under the ADDRESSES section of this document.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, 10/04/93), the Agency 
must determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant'' regulatory action as one that is likely to lead to a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely and materially affect a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligation of recipients 
thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the ``Executive Order.''
    It has been determined that this action is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866 and is 
therefore not subject to OMB review.

C. Regulatory Flexibility Act

    Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify 
that the specialty permits rule and the amendments to the Early 
Reductions Rule will not have a significant economic impact on a 
substantial number of small business entities. The EPA estimates that 
this rule will have no direct economic impact on any business entities 
for two reasons. First, the Early Reductions Program is a voluntary 
program, an alternate means of complying with otherwise applicable 
standards forthcoming under section 112(d) of the Act. Generally, 
companies would participate in the program if they thought their 
compliance costs would be less than those associated with meeting 
otherwise applicable standards. Costs could be less because the 90 (95) 
percent reduction threshold to qualify for an extension likely will be 
lower than the reduction required by applicable section 112(d) 
standards. Moreover, the Early Reductions Rule provides owners or 
operators considerable flexibility to average qualifying reductions 
among participating emissions units.
    Second, the specialty permits program rulemaking simply adapts for 
earlier use the intended mechanism for eventually delineating and 
enforcing all Act requirements at individual facilities, namely the 
title V permit. Sources not electing to participate in the Early 
Reductions Program would have to obtain title V permits anyway when 
comprehensive title V. Therefore, this rulemaking does not add any 
additional requirements to participants. The impacts from the 
requirements of title V were considered in the promulgated part 70 rule 
for State comprehensive programs (57 FR 32250). Moreover, the proposed 
change to the Early Reductions Rule would have no economic effect on 
any large or small business entities.

D. Paperwork Reduction Act

    The information collection requirements in this rule have been 
approved by the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 
et seq., and has been assigned the OMB control no. 2060-0276. An 
Information Collection Request (ICR) document has been prepared by the 
EPA (ICR No. 1650.01), and a copy may be obtained from Sandy Farmer, 
Information Policy Branch (PM-223Y), U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460, or by calling (202) 
260-2740.
    This collection of information is estimated to have a public 
reporting burden averaging 554 hours per respondent for one-time burden 
items and 43 hours per respondent annually for recurring burden items. 
This includes time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    Send comments regarding the burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch (2136); U.S. Environmental 
Protection Agency, 401 M Street, SW, Washington, DC 20460; and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503, marked ``Attention: Desk Officer for 
EPA.''

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Hazardous air pollutants, Operating permits, Reporting and 
recordkeeping requirements.

40 CFR Part 71

    Administrative practice and procedure, Air pollution control, 
Reporting and recordkeeping requirements.

    Dated: November 8, 1994.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 9--[AMENDED]

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 
1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 
Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 
300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-
9657, 11023, 11048.

    2. Section 9.1 is amended by adding in numerical order a new 
heading and a new entry under the new heading to read as follows:


9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                             OMB control
                      40 CFR citation                            No.    
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                                  *****                                 
Federal Operating Permit Programs                                       
71.24--71.26...............................................    2060-0276
------------------------------------------------------------------------

* * * * *

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart D--[Amended]

    2. Section 63.71 is amended by adding the definition of ``Post-
reduction year'' in alphabetical order to read as follows:


Sec. 63.71  Definitions.

* * * * *
    Post-reduction year means the one year period beginning with the 
date early reductions have to be achieved to qualify for a compliance 
extension under subpart D of this part, unless a source has established 
with the permitting authority an earlier one year period as the post-
reduction year. For most sources, the post-reduction year would begin 
with the date of proposal of the first section 112(d) standard 
applicable to the early reductions source; however, for sources that 
have made enforceable commitments, it would be the year from January 1, 
1994 through December 31, 1994.
* * * * *
    3. In Sec. 63.75, paragraph (g) is added to read as follows:


Sec. 63.75  Enforceable commitments.

* * * * *
    (g) The control measure information required under Sec. 63.74(d)(1) 
as part of post-reduction emission documentation and submitted in a 
permit application according to the provisions of Sec. 63.77 shall 
become part of an existing enforceable commitment upon receipt of the 
permit application by the permitting authority. An owner or operator 
shall notify the permitting authority of any change made to the source 
during calendar year 1994 which affects such control measure 
information and shall mail the notice within 5 days (postmark date) of 
making the change. The notice shall be considered an amendment to the 
source's enforceable commitment.
    4. Section 63.77 is amended by revising paragraph (e) to read as 
follows:


Sec. 63.77  Application procedures.

* * * * *
    (e) If the post-reduction year does not end at least one month 
before the permit application deadline under paragraph (c) of this 
section, the source may file the post-reduction emissions information 
required under Sec. 63.74(d)(2), (d)(3), and (d)(5) later as a 
supplement to the original permit application. In such cases, this 
supplemental information shall be submitted to the permitting authority 
no later than one month after the end of the post-reduction year.
* * * * *
    5. Part 71 is added to read as follows:

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

Subpart A--[Reserved]

Subpart B--Permits for Early Reductions Sources

Sec.
71.21  Program overview.
71.22  Definitions.
71.23  Applicability.
71.24  Permit applications.
71.25  Permit content.
71.26  Permit issuance, reopenings, and revisions.
71.27  Public participation and appeal.

    Authority: 42 U.S.C. 7401, et seq.

Subpart A--[Reserved]

Subpart B--Permits for Early Reductions Sources


Sec. 71.21  Program overview.

    (a) The regulations in this subpart provide for a limited, Federal, 
title V, permit program to establish alternative emission limitations 
for early reductions sources that have demonstrated qualifying 
reductions of hazardous air pollutants under section 112(i)(5) of the 
Act. A permit issued under this subpart which establishes such an 
enforceable alternative emission limitation shall grant all emissions 
units in the early reductions source a six-year extension from 
otherwise applicable dates of compliance for standards promulgated 
under section 112(d) of the Act.
    (b) After approval of a State's comprehensive permit program 
pursuant to title V of the Act, the Administrator may continue to issue 
specialty permits under this subpart only under the following 
circumstances:
    (1) The early reductions source filed a permit application under 
this subpart before the State obtained approval of a comprehensive 
title V permit program but the permit had not been finally issued at 
the time of State program approval; or
    (2) The early reductions source will be required to file an early 
reductions permit application under Sec. 71.24(b) before a 
comprehensive permit application is required by the State under the 
approved program.
    (c) When a circumstance described in paragraph (b)(1) or (b)(2) of 
this section occurs, the primary consideration in the Administrator's 
decision to issue a specialty permit is the degree of delay anticipated 
by deferring to the State for permit issuance.
    (d) A Permit issued to an early reductions source under this 
subpart shall have a term not to exceed five years. Such a specialty 
permit shall be incorporated into a comprehensive title V permit 
subsequently issued to the facility containing the early reductions 
source, without reopening or revision of the specialty permit except as 
provided in Sec. 71.26(e).
    (e) Issuance of a specialty permit under this subpart does not 
relieve a source from an obligation to file a timely and complete 
comprehensive permit application as required under an approved 
comprehensive title V permit program.
    (f) Delegation to other permitting authorities. (1) The 
Administrator may delegate to another permitting authority the 
responsibility to implement this permit program. Under such a 
delegation, the Administrator reserves the right to issue a final 
permit to early reductions sources that filed permit applications with 
the Administrator prior to the permitting authority obtaining 
delegation.
    (2) Under any delegation, the Administrator will require that the 
permitting authority have enforcement authority substantially 
equivalent to that specified in Sec. 70.11 of this chapter.
    (3) Upon any delegation, administrative appeals of permit decisions 
issuing pursuant to the delegated program shall continue to be subject 
to the requirements of Sec. 71.27(l).


Sec. 71.22   Definitions.

    All terms used in this subpart not defined in this section are 
given the same meaning as in the Act or in subpart D of part 63 of this 
chapter.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401, et seq.
    Actual emissions means the actual rate of emissions of a pollutant, 
but does not include excess emissions from a malfunction, or startups 
and shutdowns associated with a malfunction. Actual emissions shall be 
calculated using the early reductions source's actual operating rates, 
and types of materials processed, stored, or combusted during the 
selected time period.
    Affected States are all States:
    (1) Whose air quality may be affected and that are contiguous to 
the State in which a permit, permit modification or permit renewal is 
being proposed; or
    (2) That are within 50 miles of the permitted source.
    Comprehensive title V permit program means a program approved by 
the Administrator under part 70 of this chapter or a program 
promulgated for EPA permit issuance under title V that encompasses all 
applicable requirements of the Clean Air Act.
    Draft permit means the version of a permit for which the 
Administrator offers public participation under Sec. 71.27.
    Early reductions source means a source of hazardous air pollutants 
as defined pursuant to Sec. 63.73 of this chapter.
    Emissions unit means any part or activity of a stationary source 
that emits or has the potential to emit any hazardous air pollutant.
    Enforceable commitment means a document drafted pursuant to section 
112(i)(5)(B) of the Act and signed by a responsible company official 
which commits a company to achieving before January 1, 1994 sufficient 
reductions in hazardous air pollutants from a designated early 
reductions source to qualify such source for a compliance extension 
under section 112(i)(5)(A) of the Act.
    EPA or Administrator means the Administrator of the EPA or his or 
her designee.
    Final permit means the version of a permit issued by the 
Administrator under this subpart that has completed all review 
procedures required by Sec. 71.27.
    Hazardous air pollutant means any air pollutant listed pursuant to 
section 112(b) of the Act.
    Permit means any permit covering an existing early reductions 
source that is issued, amended, or revised pursuant to this subpart.
    Permit revision means any permit modification or administrative 
permit amendment.
    Permitting authority means either of the following:
    (1) The Administrator, in the case of EPA-implemented programs; or
    (2) The State air pollution control agency, local agency, other 
State agency, or other agency authorized by the Administrator to carry 
out a permit program under this subpart.
    Post-reduction year means the one year period beginning with the 
date early reductions have to be achieved to qualify for a compliance 
extension under subpart D of part 63 of this chapter, unless a source 
has established with the Administrator an earlier one year period as 
the post-reduction year. For most sources, the post-reduction year 
would begin with the date of proposal of the first section 112(d) 
standard applicable to the early reductions source; however, for 
sources that have made enforceable commitments, it would be the year 
from January 1, 1994 through December 31, 1994.
    Responsible official means one of the following:
    (1) For a corporation: a president, secretary, treasurer, or vice-
president of the corporation in charge of a principal business 
function, or any other person who performs similar policy or decision-
making functions for the corporation, or a duly authorized 
representative of such person if the representative is responsible for 
the overall operation of one or more manufacturing, production, or 
operating facilities applying for or subject to a permit and either:
    (i) The facilities employ more than 250 persons or have gross 
annual sales or expenditures exceeding $25 million (in second quarter 
1980 dollars); or
    (ii) The delegation of authority to such representative is approved 
in advance by the permitting authority;
    (2) For a partnership or sole proprietorship: a general partner or 
the proprietor, respectively; or
    (3) For a municipality, State, Federal, or other public agency: 
Either a principal executive officer or ranking elected official. For 
the purposes of this part, a principal executive officer of a Federal 
agency includes the chief executive officer having responsibility for 
the overall operations of a principal geographic unit of the agency 
(e.g., a Regional Administrator of EPA).
    Section 112(d) standard means an emission standard issued by the 
Administrator under section 112(d) of the Clean Air Act, as amended.
    State means any non-Federal permitting authority, including any 
local agency, interstate association, or statewide program. The term 
``State'' also includes the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands. Where such meaning is 
clear from the context, ``State'' shall have its conventional meaning.


Sec. 71.23   Applicability.

    (a) Sources covered. The provisions of this subpart apply to an 
owner or operator of an existing source who is seeking a compliance 
extension under section 112(i)(5) of the Act and who, pursuant to part 
63, subpart D, of this chapter, is required to file a permit 
application for the extension prior to the date a comprehensive title V 
permit program is approved for the State in which the existing source 
is located.
    (b) Covered emissions. All hazardous air pollutant emissions from 
the early reductions source shall be included in permit applications 
and part 71 permits issued under this subpart.


Sec. 71.24   Permit applications.

    (a) Where to file. To apply for a compliance extension and an 
alternative emission limitation under this subpart, the owner or 
operator of an early reductions source shall file a complete permit 
application with the appropriate EPA Regional Office. The owner or 
operator shall also send a copy of the application to the appropriate 
State agency; to the EPA Emission Standards Division, Mail Drop 13, 
Research Triangle Park, North Carolina, 27711 (attention: Early 
Reductions Officer); and to the EPA Office of Enforcement, EN-341W, 401 
M Street, SW., Washington, DC 20460 (attention: Early Reductions 
Officer).
    (b) Deadlines. (1) Permit applications under this subpart for early 
reductions sources not subject to enforceable commitments shall be 
submitted by the later of the following dates:
    (i) 120 days after proposal of an otherwise applicable standard 
issued under section 112(d) of the Act; or
    (ii) March 21, 1995.
    (2) Permit applications for early reductions sources subject to 
enforceable commitments established pursuant to Sec. 63.75 of this 
chapter shall be filed no later than April 30, 1994.
    (3) If the post-reduction year does not end at least one month 
before the permit application deadline under paragraphs (b)(1) or 
(b)(2) of this section, the source may file the post-reduction 
emissions information required under paragraph (e)(2) of this section 
later as a supplement to the original permit application. In such 
cases, this supplemental information shall be submitted to the 
Administrator no later than one month after the end of the post-
reduction year.
    (4) If a source test will be the supporting basis for establishing 
post-reduction emissions for one or more emissions units in the early 
reductions source, the test results shall be submitted by the deadline 
for submittal of a permit application under this section.
    (c) Complete application. To be found complete, an application must 
provide all information required pursuant to paragraph (e) of this 
section, except for the information on post-reduction emissions 
required under paragraph (e)(2) of this section. Applications for 
permit revision need supply the information required under paragraph 
(e) of this section only if it is related to the proposed change. 
Information submitted under paragraph (e) of this section must be 
sufficient to allow the Administrator to determine if the early 
reductions source meets the applicable requirements of subpart D of 
part 63 of this chapter. Unless the Administrator determines that an 
application is not complete within 45 days of receipt of the 
application, such application shall be deemed to be complete, except as 
otherwise provided in Sec. 71.26(a)(3). If, while processing an 
application that has been determined or deemed to be complete, the 
Administrator determines that additional information is necessary to 
evaluate or take final action on that application, the Administrator 
may request such information in writing and set a reasonable deadline 
for a response.
    (d) Duty to supplement or correct application. Any applicant who 
fails to submit any relevant facts or who has submitted incorrect 
information in a permit application shall, upon becoming aware of such 
failure or incorrect submittal, promptly submit such supplementary 
facts or corrected information. In addition, an applicant shall provide 
additional or revised information as necessary to address any 
requirements of subpart D of part 63 of this chapter (Compliance 
Extensions for Early Reductions) or of this subpart that become 
applicable to the early reductions source after the date it filed a 
complete application but prior to release of a draft permit.
    (e) Required information. The following elements are required 
information for permit applications under this subpart:
    (1) Identifying information, including company name, telephone 
number, and address (or plant name, telephone number, and address if 
different from the company name); owner's name, telephone number, and 
agent; and telephone number(s) and name(s) of plant site manager/
contact;
    (2) All information required in Sec. 63.74 of this chapter, 
including that needed to describe the early reductions source, its base 
year and post-reduction emissions, and supporting basis for the 
emissions;
    (3) A statement of the proposed alternative emission limitation for 
hazardous air pollutants from the early reductions source on an annual 
basis, reflecting the emission reductions required to qualify the early 
reductions source for a compliance extension under subpart D of part 63 
of this chapter;
    (4) Additional emission limiting requirements, such as work 
practice standards or limitations on operation, which are necessary to 
assure proper operation of installed control equipment and compliance 
with the annual alternative emission limitation for the early 
reductions source;
    (5) Information necessary to define alternative operating scenarios 
for the early reductions source or permit terms and conditions for 
trading hazardous air pollutant increases and decreases under 
Sec. 71.25(a)(10), including any associated permit terms and conditions 
needed to assure compliance with the alternative emission limitation 
under the alternative operating scenarios or pollutant trading; and
    (6) Statements related to compliance meeting the following 
criteria:
    (i) A statement of methods proposed to determine compliance by the 
early reductions source with the proposed alternative emission 
limitation, including a description of monitoring devices and 
activities, emission calculation procedures, recordkeeping, and 
reporting requirements and test methods; and
    (ii) A schedule for submission of compliance certifications during 
the permit term, to be submitted no less frequently than annually.
    (f) Any application form, report, or compliance certification 
submitted pursuant to these regulations shall contain certification by 
a responsible official of truth, accuracy, and completeness. This 
certification and any other certification required under this part 
shall state that, based on information and belief formed after 
reasonable inquiry, the statements and information in the document are 
true, accurate, and complete.


Sec. 71.25  Permit content.

    (a) Standard permit requirements. Each permit issued under this 
subpart shall include the following elements:
    (1) Alternative emission limitation. An annual alternative emission 
limitation for hazardous air pollutants from the early reductions 
source reflecting the 90 percent reduction (95 percent for hazardous 
air pollutants which are particulate matter) which qualified the early 
reductions source for a compliance extension under subpart D of part 63 
of this chapter.
    (2) Additional limitations. Additional emission limiting 
requirements, such as limitations on operation, work practice 
standards, and any other emission limiting requirements for the early 
reductions source necessary to assure compliance with the alternative 
emission limitation.
    (3) Monitoring requirements. Each permit shall contain the 
following monitoring requirements:
    (i) All emissions monitoring and analysis procedures or test 
methods necessary to assure compliance with the emission limitations 
established under paragraphs (a)(1) and (a)(2) of this section. Such 
monitoring or testing shall be consistent with the demonstration made 
pursuant to Sec. 63.74 of this chapter and any procedures and methods 
promulgated pursuant to sections 114(a)(3) or 504(b) of the Act;
    (ii) Periodic monitoring or testing sufficient to yield reliable 
data from the relevant time period that are representative of the early 
reductions source's compliance with the permit. Such monitoring 
requirements shall assure use of terms, test methods, units, averaging 
periods, and other statistical conventions consistent with the 
demonstration made pursuant to Sec. 63.74 of this chapter. 
Recordkeeping provisions may be sufficient to meet the requirements of 
this paragraph (a)(3)(ii); and
    (iii) As necessary, requirements concerning the use, maintenance, 
and, where appropriate, installation of monitoring equipment or 
methods.
    (4) Recordkeeping requirements. The permit shall contain 
recordkeeping requirements including the following, as applicable:
    (i) Records of required monitoring information that include the 
following:
    (A) The date, place as defined in the permit, and time of sampling 
or measurements;
    (B) The date(s) analyses were performed;
    (C) The company or entity that performed the analyses;
    (D) The analytical techniques or methods used;
    (E) The results of such analyses; and
    (F) The operating conditions as existing at the time of sampling or 
measurement;
    (ii) Retention of records of all required monitoring data and 
support information for a period of at least 5 years from the date of 
the monitoring sample, measurement, report, or application. Support 
information includes all calibration and maintenance records and all 
original strip-chart recordings for continuous monitoring 
instrumentation, and copies of all reports required by the permit.
    (5) Reporting requirements. The permit shall require the following:
    (i) Submittal of reports of all required monitoring at least every 
6 months. All instances of deviations from permit requirements must be 
clearly identified in such reports; and
    (ii) Prompt reporting of any deviations from permit requirements, 
including those attributable to upset conditions as defined in the 
permit. Such reports shall include the probable cause of such 
deviations and any corrective actions or preventive measures taken. The 
Administrator will define ``prompt'' in the permit for each situation 
and will do so in relation to the degree and type of deviation likely 
to occur.
    (6) A severability clause to ensure the continued validity of the 
various permit requirements in the event of a challenge to any portions 
of the permit.
    (7) Provisions stating the following:
    (i) The permittee must comply with all conditions of part 71 permit 
issued under this subpart. A violation of an alternative emission 
limitation, as well as any other requirement established in a permit 
issued under this subpart, is enforceable pursuant to the authority of 
section 113 of the Act, notwithstanding any demonstration of continuing 
90 percent (95 percent in the case of hazardous air pollutants which 
are particulates) emission reduction over the entire early reductions 
source. Any permit noncompliance constitutes a violation of the Act and 
is grounds for enforcement action or for permit termination, revocation 
and reissuance, or modification;
    (ii) Need to halt or reduce activity not a defense. It shall not be 
a defense for a permittee in an enforcement action that it would have 
been necessary to halt or reduce the permitted activity in order to 
maintain compliance with the conditions of this permit;
    (iii) The permit may be revised, revoked, reopened, and reissued, 
or terminated for cause. The filing of a request by the permittee for a 
permit revision, revocation and reissuance, or termination, or of a 
notification of planned changes or anticipated noncompliance does not 
stay any permit condition;
    (iv) The permit does not convey any property rights of any sort, or 
any exclusive privilege; and
    (v) The permittee shall furnish to the Administrator, within a 
reasonable time, any information that the Administrator may request in 
writing to determine whether cause exists for revising the permit, 
revoking and reissuing, or terminating the permit or to determine 
compliance with the permit. Upon request, the permittee shall also 
furnish to the Administrator copies of records required to be kept by 
the permitee.
    (8) Terms and conditions for reasonably anticipated operating 
scenarios identified by the early reductions source in its application 
as approved by the Administrator. Such terms and conditions:
    (i) Shall require the early reductions source, contemporaneously 
with making a change from one operating scenario to another, to record 
in a log at the permitted facility a record of the scenario under which 
it is operating. Provided that an emitting unit is monitored in a way 
that provides contemporaneous identification that a change to a 
particular alternate scenario has occurred, no notice to the 
Administrator is required. Otherwise, when such a change is made, the 
permittee at the beginning of the following week shall place in regular 
mail to the Administrator notice that a change to a particular 
alternate operating scenario has occurred; and
    (ii) Must ensure that the terms and conditions of each such 
alternative scenario meet the alternative emission limitation and the 
requirements of this subpart.
    (9) Terms and conditions, if the permit applicant requests them, 
for the trading of hazardous air pollutant emissions increases and 
decreases among emissions units within the early reductions source 
without permit revision or case-by-case approval of each emissions 
trade, provided that:
    (i) Such terms and conditions include all terms required under 
paragraphs (a) and (c) of this section to determine compliance;
    (ii) The changes in hazardous air pollutant emissions do not exceed 
the emissions allowable under the permit;
    (iii) The changes in hazardous air pollutant emissions are not 
modifications under any provision of title I of the Act;
    (iv) The Administrator determines that the emissions are 
quantifiable and that replicable procedures or other practical means 
exist to enforce the emission trades; and
    (v) The early reductions source owner or operator provides the 
Administrator written notification at least 7 days in advance of the 
proposed changes and includes in the notification a description of the 
change in emissions that will occur, when the change will occur, and 
how the increases and decreases in emissions will comply with the 
alternative emission limitation and other terms and conditions of the 
permit.
    (b) Federally enforceable requirements. All terms and conditions in 
a permit issued under this subpart are enforceable by the Administrator 
and citizens under the Act.
    (c) Compliance requirements. All permits issued under this subpart 
shall contain the following elements with respect to compliance:
    (1) Consistent with paragraphs (a)(3), (a)(4), and (a)(5) of this 
section, testing, monitoring, recordkeeping, and reporting requirements 
sufficient to assure compliance with the terms and conditions of the 
permit. Any document (including reports) required to be submitted by a 
permit shall contain a certification by a responsible official that 
meets the requirements of Sec. 71.24(f).
    (2) Inspection and entry provisions that require that, upon 
presentation of credentials and other documents as may be required by 
law, the permittee shall allow the Administrator or an authorized 
representative to perform the following:
    (i) Enter upon the permittee's premises where the early reductions 
source is located or emissions-related activity is conducted, or where 
required records are kept;
    (ii) Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of the permit;
    (iii) Inspect at reasonable times any facilities, equipment 
(including monitoring and air pollution control equipment), practices, 
or operations regulated or required under the permit; and
    (iv) Sample or monitor at reasonable times substances or parameters 
for the purpose of determining compliance with the permit.
    (3) Requirements for compliance certification with terms and 
conditions contained in the permit, including the alternative emission 
limitation. Permits shall include each of the following:
    (i) The frequency (not less than annually) of submissions of 
compliance certifications;
    (ii) Consistent with paragraph (a)(3) of this section, a means for 
monitoring the compliance of the early reductions source with its 
alternative emission limitation;
    (iii) A requirement that the compliance certification include the 
following:
    (A) The identification of each term or condition of the permit that 
is the basis of the certification;
    (B) The compliance status;
    (C) Whether compliance was continuous or intermittent;
    (D) The method(s) used for determining the compliance status of the 
early reductions source, currently and over the reporting period 
consistent with paragraph (a)(3) of this section; and
    (E) Such other facts as the Administrator may require to determine 
the compliance status of the early reductions source;
    (iv) A requirement that all compliance certifications be submitted 
to the Administrator or the Administrator's designated agent; and
    (v) Such additional requirements as may be specified pursuant to 
sections 114(a)(3) and 504(b) of the Act.
    (4) Such other provisions as the Administrator may require.
    (d) Permit shield. (1) The Administrator will expressly include in 
a permit issued pursuant to this subpart a provision stating that 
compliance with the conditions of the permit shall be deemed compliance 
with part 63, subpart D, of this chapter (the Early Reductions Rule), 
as of the date of permit issuance.
    (2) A permit shield may be extended to all permit terms and 
conditions for alternate operating scenarios pursuant to paragraph 
(a)(9) of this section or that allow increases and decreases in 
hazardous air pollutant emissions pursuant to paragraph (a)(10) of this 
section.
    (3) Nothing in this paragraph (d) or in any permit issued pursuant 
to this subpart shall alter or affect the following:
    (i) The provisions of sections 112(r) and 303 of the Act (emergency 
orders);
    (ii) The liability of an owner or operator of an early reductions 
source for any violation of applicable requirements prior to or at the 
time of permit issuance; or
    (iii) The ability of the Administrator to obtain information from 
an early reductions source pursuant to section 114 of the Act.
    (e) Emergency provision.--(1) Definition. An ``emergency'' means 
any situation arising from sudden and reasonably unforeseeable events 
beyond the control of the early reductions source, including acts of 
God, which situation requires immediate corrective action to restore 
normal operation, and that causes the early reductions source to exceed 
an emission limitation under the permit, due to unavoidable increases 
in emissions attributable to the emergency. An emergency shall not 
include noncompliance to the extent caused by improperly designed 
equipment, lack of preventative maintenance, careless or improper 
operation, or operator error.
    (2) Effect of an emergency. An emergency constitutes an affirmative 
defense to an action brought for noncompliance with such an emission 
limitation if the conditions of paragraph (e)(3) of this section are 
met.
    (3) The affirmative defense of emergency shall be demonstrated 
through properly signed, contemporaneous operating logs, or other 
relevant evidence that:
    (i) An emergency occurred and that the permittee can identify the 
cause(s) of the emergency;
    (ii) The permitted facility was at the time being properly 
operated;
    (iii) During the period of the emergency the permittee took all 
reasonable steps to minimize levels of emissions that exceeded the 
emission limitation, or other requirements in the permit; and
    (iv) The permittee submitted notice of the emergency to the 
Administrator within 2 working days of the time when emission 
limitations were exceeded due to the emergency. This notice fulfills 
the requirement of paragraph (a)(5)(ii) of this section. This notice 
must contain a description of the emergency, any steps taken to 
mitigate emissions, and corrective actions taken.
    (4) In any enforcement proceeding, the permittee seeking to 
establish the occurrence of an emergency has the burden of proof.


Sec. 71.26  Permit issuance, reopenings, and revisions.

    (a) Action on application. (1) A permit or permit revision may be 
issued only if all of the following conditions have been met:
    (i) The Administrator has received a complete application for a 
permit or permit revision;
    (ii) The requirements for public participation under Sec. 71.27 
have been followed; and
    (iii) The conditions of the proposed permit or permit revision meet 
all the requirements of Sec. 71.25 and provide for compliance with an 
alternative emission limitation reflecting the emissions reduction 
which qualified the early reductions source for a compliance extension 
under part 63, subpart D, of this chapter.
    (2) The Administrator will take final action on each permit 
application (including a request for permit revision) within 12 months 
after receiving a complete application, except that final action may be 
delayed where an applicant fails to provide additional information in a 
timely manner as requested by the Administrator under Sec. 71.24(c).
    (3) The Administrator will promptly provide notice to the applicant 
of whether the application is complete. Unless the Administrator 
requests additional information or otherwise notifies the applicant of 
incompleteness within 45 days of receipt of an application, the 
application shall be deemed complete. For revisions that qualify as 
administrative amendments and are processed through the procedures of 
paragraph (c) of this section, a completeness determination need not be 
made.
    (4) If a source submits a timely and complete application for 
permit issuance, the source's failure to have a title V permit for 
purposes of any requirements under section 112 pertaining to the early 
reductions source is not a violation of this part until the 
Administrator takes final action on the permit application. This 
protection shall cease to apply if, subsequent to the completeness 
determination made pursuant to paragraph (a)(3) of this section, and as 
required by Sec. 71.24(d), the applicant fails to submit by the 
deadline specified in writing by the Administrator any additional 
information identified as being needed to process the application.
    (b) Permit renewal and expiration. (1) Permits issued under this 
subpart shall not be renewed. Permit renewal for expiring permits 
issued under this subpart shall be accomplished according to the 
requirements of title V of the Act for comprehensive permits for the 
facility containing the early reductions source.
    (2) Except as specified in paragraph (b)(3) of this section, permit 
expiration terminates the early reductions source's right to operate.
    (3) If, consistent with the requirements of title V of the Act, a 
timely and complete application for a comprehensive title V permit for 
the facility containing the early reductions source has been submitted 
but the permitting authority has failed to issue or deny the 
comprehensive permit prior to expiration of a permit issued under this 
subpart, then the existing permit for the early reductions source shall 
not expire until the comprehensive title V permit for the facility has 
been issued or denied.
    (c) Administrative permit amendments. (1) An ``administrative 
permit amendment'' is a permit revision that:
    (i) Corrects typographical errors;
    (ii) Identifies a change in the name, address, or phone number of 
any person identified in the permit, or provides a similar minor 
administrative change at the source;
    (iii) Requires more frequent monitoring or reporting by the 
permittee;
    (iv) Allows for a change in ownership or operational control of an 
early reductions source where the permitting authority determines that 
no other change in the permit is necessary, provided that a written 
agreement containing a specific date for transfer of permit 
responsibility, coverage, and liability between the current and new 
permittee has been submitted to the permitting authority; or
    (v) Incorporates any other type of change which the Administrator 
has determined to be ministerial in nature and, therefore, similar to 
those in paragraphs (c)(1)(i) through (c)(1)(iv) of this section.
    (2) Administrative permit amendment procedures. Administrative 
permit amendments may be made to a permit issued under this subpart 
using the following procedures:
    (i) The source shall submit to the Administrator an application 
containing a proposed addendum to the source's permit. The application 
shall demonstrate how the proposed change meets one of the criteria for 
administrative amendments set forth in paragraphs (c)(1)(i) through 
(c)(1)(iv) of this section, and include certification by the 
responsible official consistent with Sec. 71.24(f) that the change is 
eligible for administrative amendment procedures. The addendum shall:
    (A) Identify the terms of the part 71, subpart B permit the source 
proposes to change;
    (B) Propose new permit terms consistent with the provisions of this 
subpart applicable to the change;
    (C) Designate the addendum as having been processed under the 
procedures of this paragraph (c); and
    (D) Specify that the addendum will be effective 60 days from the 
date of the Administrator's receipt, unless the Administrator 
disapproves the change within such period.
    (ii) The Administrator will allow the source to implement the 
requested change immediately upon making all required submittals, 
including the proposed addendum.
    (iii) The proposed addendum will become effective 60 days after the 
Administrator receives the submittal, provided the Administrator has 
not disapproved the request in writing before the end of the 60-day 
period. The Administrator shall record the change by attaching a copy 
of the addendum to the part 71, subpart B permit.
    (iv) If the Administrator disapproves the change, he or she shall 
notify the source of the reasons for the disapproval in a timely 
manner. Upon receiving such notice, the source shall comply with the 
terms of the permit that it had proposed to change, and thereafter the 
proposed addendum shall not take effect.
    (v) The process in this paragraph (c) may also be used for changes 
initiated by the Administrator that meet the criteria under paragraphs 
(c)(1) (i), (ii), and (iv) of this section. For such changes, the 
Administrator will notify the source of the proposed change and its 
effective date, and shall attach a copy of the change to the existing 
permit. On the effective date of the proposed change, the source shall 
comply with the provisions of the proposed change.
    (vi) The permit shield under Sec. 71.25(d) may not extend to 
administrative amendments processed under this paragraph (c)(2).
    (d) Permit revision procedures--(1) Criteria. Permit revision 
procedures shall be used for applications requesting permit revisions 
that do not qualify as administrative amendments. Nothing in this 
paragraph (d) shall be construed to preclude the permittee from making 
changes consistent with this subpart that would render existing permit 
compliance terms and conditions irrelevant.
    (2) Permit revisions shall meet all requirements of this subpart, 
including those for applications, public participation, and review by 
affected States, as they apply to permit issuance. The Administrator 
will complete review on permit revisions within 9 months after receipt 
of a complete application.
    (e) Reopening for cause. (1) Each issued permit shall include 
provisions specifying the conditions under which the permit will be 
reopened. A permit shall be reopened and revised under any of the 
following circumstances:
    (i) The Administrator determines that the permit contains a 
material mistake or that inaccurate statements were made in 
establishing the emission limits or other terms or conditions of the 
permit.
    (ii) The Administrator determines that the permit must be revised 
to assure compliance with the alternative emission limitation.
    (2) Proceedings to reopen and issue a permit shall follow the same 
procedures as apply to initial permit issuance and shall affect only 
those parts of the permit for which cause to reopen exists.
    (3) Reopenings under paragraph (e)(1) of this section shall not be 
initiated before a notice of such intent is provided to the early 
reductions source by the Administrator. Such notice will be provided at 
least 30 days in advance of the date that the permit is to be reopened, 
except that the Administrator may provide a shorter time period in the 
case of an emergency.
    (f) EPA review under State programs for issuing specialty permits. 
(1) If the Administrator approves a State program for the 
implementation of this subpart, the State program shall require that 
the Administrator receive a copy of each permit application (including 
any application for permit revision) each proposed permit, and each 
final permit issued pursuant to this subpart. The State program may 
require that the applicant provide a copy of any permit application 
directly to the Administrator.
    (2) The Administrator will object to the issuance of any proposed 
permit determined by the Administrator not to be in compliance with 
requirements under this subpart or part 63 of this chapter. If the 
Administrator objects in writing within 45 days of receipt of a 
proposed permit and all necessary supporting documentation, the State 
shall not issue the permit.
    (3) Any EPA objection to a proposed permit will include a statement 
of the Administrator's reasons for objection and a description of the 
terms and conditions that the permit must include to respond to the 
objections. The Administrator will provide the permit applicant a copy 
of the objection.
    (4) Failure of the State to do any of the following also shall 
constitute grounds for an objection:
    (i) Comply with paragraph (f)(1) of this section;
    (ii) Submit any information necessary to review adequately the 
proposed permit; or
    (iii) Process the permit under procedures approved to meet 
paragraph (f) of this section.
    (5) If the State fails, within 90 days after the date of an 
objection under paragraph (f)(2) of this section, to revise and submit 
a proposed permit in response to the objection, the Administrator will 
issue or deny the permit in accordance with the requirements of this 
subpart.
    (6) Public petitions to the Administrator. Within 60 days after 
expiration of the Administrator's 45-day review period, any person may 
petition the Administrator in writing to make an objection. Any such 
petition shall be based only on objections to the permit that were 
raised with reasonable specificity during the public comment period 
provided for and consistent with Sec. 71.27, unless the petitioner 
demonstrates that it was impracticable to raise such objections within 
such period, or unless the grounds for such objection arose after such 
period. If the Administrator objects to the permit as a result of a 
petition filed under this paragraph, the permitting authority shall not 
issue the permit until EPA's objection has been resolved, except that a 
petition for review does not stay the effectiveness of a permit or its 
requirements if the permit was issued after the end of the 45-day 
review period and prior to an objection. If the permitting authority 
has issued a permit prior to receipt of an EPA objection under this 
paragraph, the Administrator will revise, terminate, or revoke such 
permit, and shall do so consistent with the procedures in 40 CFR 
70.7(g)(4) or (g)(5)(i) except in unusual circumstances, and the 
permitting authority may thereafter issue only a revised permit that 
satisfies EPA's objection. In any case, the source will not be in 
violation of the requirement to have submitted a timely and complete 
application.


Sec. 71.27  Public participation and appeal.

    All permit proceedings, including preparation of draft permits, 
initial permit issuance, permit revisions, and granted appeals, shall 
provide adequate procedures for public participation, including notice, 
opportunity for comment, a hearing if requested, and administrative 
appeal. Specific procedures shall include the following:
    (a) Revision, revocation and reissuance, or termination of permits. 
(1) Permits may be revised, revoked and reissued, or terminated either 
at the request of any interested person (including the permittee) or 
upon the Administrator's initiative. However, permits may only be 
revised, revoked and reissued, or terminated for the reasons specified 
in Secs. 71.25(a)(7) and 71.26(e). All requests shall be in writing and 
shall contain facts or reasons supporting the request.
    (2) If the Administrator decides the request is not justified, he 
or she shall send the requester a brief written response giving a 
reason for the decision. Denials of requests for revision, revocation 
and reissuance, or termination are not subject to public notice, 
comment, or hearings. Denials by the Administrator may be informally 
appealed to the Environmental Appeals Board by a letter briefly setting 
forth the relevant facts. The Board may direct the Administrator to 
begin revision, revocation and reissuance, or termination proceedings 
under paragraph (a)(3) of this section. The appeal shall be considered 
denied if the Board takes no action within 60 days after receiving it. 
This informal appeal is, under 42 U.S.C. 307, a prerequisite to seeking 
judicial review of EPA action in denying a request for revision, 
revocation and reissuance, or termination.
    (3) (i) Except in the case of administrative amendment of a permit, 
if the Administrator tentatively decides to revise or revoke and 
reissue a permit under Secs. 71.25(a)(7) and 71.26(e), he or she shall 
prepare a draft permit under paragraph (b) of this section 
incorporating the proposed changes. The Administrator may request 
additional information and, in the case of a revised permit, shall 
require the submission of an updated application. In the case of 
revoked and reissued permits, the Administrator shall require the 
submission of a new application.
    (ii) In a permit revision under this subsection, only those 
conditions to be revised shall be reopened when a new draft permit is 
prepared. All other aspects of the existing permit shall remain in 
effect for the duration of the unrevised permit. When a permit is 
revoked and reissued under this subsection, the entire permit is 
reopened just as if the permit had expired and was being reissued. 
During any revocation and reissuance proceeding the permittee shall 
comply with all conditions of the existing permit until a new final 
permit is reissued.
    (4) If the Administrator tentatively decides to terminate a permit 
under Secs. 71.25(a)(7) and 71.26(e), he or she shall issue a notice of 
intent to terminate. A notice of intent to terminate is a type of draft 
permit which follows the same procedures as any draft permit prepared 
under paragraph (b) of this section. A notice of intent to terminate 
shall not be issued if the Administrator and the permittee agree to 
termination in the course of transferring permit responsibility to an 
approved State under Sec. 71.21(e).
    (5) Any request by the permittee for revision to an existing permit 
shall be treated as a permit application and shall be processed in 
accordance with all requirements of Sec. 71.24.
    (b) Draft permits. (1) Once an application is complete, the 
Administrator shall tentatively decide whether to prepare a draft 
permit or to deny the application.
    (2) If the Administrator tentatively decides to deny the permit 
application, he or she shall issue a notice of intent to deny. A notice 
of intent to deny the permit application is a type of draft permit 
which follows the same procedures as any draft permit prepared under 
this subsection. If the Administrator's final decision is that the 
tentative decision to deny the permit application was incorrect, he or 
she shall withdraw the notice of intent to deny and proceed to prepare 
a draft permit under paragraph (b)(4) of this section.
    (3) If the Administrator decides to prepare a draft permit, he or 
she shall prepare a draft permit that contains the permit conditions 
under Sec. 71.25.
    (4) All draft permits prepared under this subsection shall be 
publicly noticed and made available for public comment. The 
Administrator shall give notice of opportunity for a public hearing, 
issue a final decision and respond to comments. For all early 
reductions permits, an appeal may be taken under paragraph (l) of this 
section.
    (c) Statement of basis. The Administrator shall prepare a statement 
of basis for every draft permit. The statement of basis shall briefly 
describe the derivation of the conditions of the draft permit and the 
reasons for them or, in the case of notices of intent to deny or 
terminate, reasons supporting the tentative decision. The statement of 
basis shall be sent to the applicant and, on request, to any other 
person.
    (d) Public notice of permit actions and public comment period.--(1) 
Scope. (i) The Administrator shall give public notice that the 
following actions have occurred:
    (A) A permit application has been tentatively denied under 
paragraph (b)(2) of this section;
    (B) A draft permit has been prepared under paragraph (b)(3) of this 
section;
    (C) A hearing has been scheduled under paragraph (f) of this 
section;
    (D) An appeal has been granted under paragraph (l)(3) of this 
section.
    (ii) No public notice is required in the case of administrative 
permit amendments, or when a request for permit revision, revocation 
and reissuance, or termination has been denied under paragraph (a)(2) 
of this section. Written notice of that denial shall be given to the 
requester and to the permittee.
    (iii) Public notices may describe more than one permit or permit 
action.
    (2) Timing. (i) Public notice of the preparation of a draft permit 
or permit revision (including a notice of intent to deny a permit or 
permit revision application) shall allow at least 30 days for public 
comment.
    (ii) Public notice of a public hearing shall be given at least 30 
days before the hearing. (Public notice of the hearing may be given at 
the same time as public notice of the draft permit or permit revision 
and the two notices may be combined.)
    (iii) The Administrator shall provide such notice and opportunity 
for participation to Affected States on or before the time that the 
Administrator provides this notice to the public.
    (3) Methods. Public notice of activities described in paragraph 
(d)(1)(i) of this section shall be given by the following methods:
    (i) By mailing a copy of a notice to the following persons (any 
person otherwise entitled to receive notice under this paragraph (d) 
may waive his or her rights to receive notice for any permit):
    (A) The applicant;
    (B) Any other agency which the Administrator knows has issued or is 
required to issue any other permit under the Clean Air Act for the same 
facility or activity;
    (C) Affected States and Indian Tribes;
    (D) Affected State and local air pollution control agencies, the 
chief executives of the city and county where the early reductions 
source is located, any comprehensive regional land use planning agency 
and any State, Federal Land Manager, or Indian Governing Body whose 
lands may be affected by emissions from the regulated activity;
    (E) Persons on a mailing list developed by:
    (1) Including those who request in writing to be on the list;
    (2) Soliciting persons for ``area lists'' from participants in past 
permit proceedings in that area; and
    (3) Notifying the public of the opportunity to be put on the 
mailing list through periodic publication in the public press and in 
such publications as Regional and State funded newsletters, 
environmental bulletins, or State law journals. (The Administrator may 
update the mailing list from time to time by requesting written 
indication of continued interest from those listed. The Administrator 
may delete from the list the name of any person who fails to respond to 
such a request.);
    (F) Any unit of local government with authority for regulating air 
pollution and having jurisdiction over the area where the early 
reductions source is located and to each State agency having any 
authority for regulating air pollution under State law with respect to 
the operation of such source.
    (ii) By publication of a notice in a daily or weekly newspaper of 
general circulation within the area affected by the early reductions 
source.
    (iii) By any other method reasonably calculated to give actual 
notice of the action in question to the persons potentially affected by 
it, including press releases or any other forum or medium to elicit 
public participation.
    (4) Contents--(i) All public notices. All public notices issued 
under this subpart shall contain the following minimum information:
    (A) The name and address of the Administrator or the 
Administrator's designated agent processing the permit;
    (B) The name and address of the permittee or permit applicant and, 
if different, of the facility regulated by the permit;
    (C) The activity or activities involved in the permit action;
    (D) The emissions change involved in any permit revision;
    (E) The name, address and telephone number of a person from whom 
interested persons may obtain additional information, including copies 
of the draft permit, the application, all relevant supporting 
materials, and all other materials available to the Administrator that 
are relevant to the permit decision;
    (F) A brief description of the comment procedures required by 
paragraphs (e) and (f) of this section and the time and place of any 
hearing that will be held, including a statement of procedures to 
request a hearing (unless a hearing has already been scheduled) and 
other procedures by which the public may participate in the final 
permit decision; and
    (G) Any additional information considered necessary or proper.
    (ii) Public notices for hearings. In addition to the general public 
notice described in paragraph (d)(4)(i) of this section, the public 
notice of a hearing under paragraph (f) of this section shall contain 
the following information:
    (A) Reference to the date of previous public notices relating to 
the permit;
    (B) Date, time, and place of the hearing; and
    (C) A brief description of the nature and purpose of the hearing, 
including the applicable rules and procedures.
    (5) In addition to the general public notice described in paragraph 
(d)(4)(i) of this section, all persons identified in paragraphs 
(d)(3)(i)(A), (B), and (C) of this section shall be mailed a copy of 
the fact sheet or statement of basis, the permit application (if any), 
and the draft permit (if any).
    (e) Public comments and requests for public hearings. During the 
public comment period provided under paragraph (a) of this section, any 
interested person may submit written comments on the draft permit or 
permit revision and may request a public hearing, if no hearing has 
already been scheduled. A request for a public hearing shall be in 
writing and shall state the nature of the issues proposed to be raised 
at the hearing. All comments shall be considered in making the final 
decision and shall be answered as provided in paragraph (j) of this 
section. The Administrator will keep a record of the commenters and of 
the issues raised during the public participation process, and such 
records shall be available to the public.
    (f) Public hearings. (1)(i) The Administrator shall hold a hearing 
whenever he or she finds, on the basis of requests, a significant 
degree of public interest in a draft permit or permit revision.
    (ii) The Administrator may also hold a public hearing at his or her 
discretion, whenever, for instance, such a hearing might clarify one or 
more issues involved in the permit decision.
    (iii) Public notice of the hearing shall be given as specified in 
paragraph (d) of this section.
    (2) Whenever a public hearing is held, the Administrator shall 
designate a Presiding Officer for the hearing who shall be responsible 
for its scheduling and orderly conduct.
    (3) Any person may submit oral or written statements and data 
concerning the draft permit or permit revision. Reasonable limits may 
be set upon the time allowed for oral statements, and the submission of 
statements in writing may be required. The public comment period under 
paragraph (d) of this section shall be automatically extended to the 
close of any public hearing under this subsection. The hearing officer 
may also extend the comment period by so stating at the hearing.
    (4) A tape recording or written transcript of the hearing shall be 
made available to the public.
    (g) Obligation to raise issues and provide information during the 
public comment period. All persons, including applicants, who believe 
any condition of a draft permit is inappropriate or that the 
Administrator's tentative decision to deny an application, terminate a 
permit, or prepare a draft permit is inappropriate, must raise all 
reasonably ascertainable issues and submit all reasonably ascertainable 
arguments supporting their position by the close of the public comment 
period (including any public hearing). Any supporting materials which 
are submitted shall be included in full and may not be incorporated by 
reference, unless they are already part of the administrative record in 
the same proceeding, or consist of State or Federal statutes and 
regulations, EPA documents of general applicability, or other generally 
available reference materials. Commenters shall make supporting 
materials not already included in the administrative record available 
to EPA as directed by the Administrator. (A comment period longer than 
30 days may be necessary to give commenters a reasonable opportunity to 
comply with the requirements of this paragraph (g). Additional time 
shall be granted to the extent that a commenter who requests additional 
time demonstrates the need for such time.)
    (h) Reopening of the public comment period. (1)(i) The 
Administrator may order the public comment period reopened if the 
procedures of this paragraph (h) could expedite the decisionmaking 
process. When the public comment period is reopened under this 
paragraph (h), all persons, including applicants, who believe any 
condition of a draft permit is inappropriate or that the 
Administrator's tentative decision to deny an application, terminate a 
permit, or prepare a draft permit is inappropriate, must submit all 
reasonably available factual grounds supporting their position, 
including all supporting material, by a date, not less than 60 days 
after public notice under paragraph (h)(1)(ii) of this section, set by 
the Administrator. Thereafter, any person may file a written response 
to the material filed by any other person, by a date, not less than 20 
days after the date set for filing of the material, set by the 
Administrator.
    (ii) Public notice of any comment period under this paragraph shall 
identify the issues to which the requirements of paragraph (h)(1)(i) of 
this section shall apply.
    (iii) On his or her own motion or on the request of any person, the 
Administrator may direct that the requirements of paragraph (h)(1)(i) 
of this section shall apply during the initial comment period where it 
reasonably appears that issuance of the permit will be contested and 
that applying the requirements of paragraph (h)(1)(i) of this section 
will substantially expedite the decisionmaking process. The notice of 
the draft permit shall state whenever this has been done.
    (iv) A comment period of longer than 60 days will often be 
necessary in complicated proceedings to give commenters a reasonable 
opportunity to comply with the requirements of this subsection. 
Commenters may request longer comment periods and they shall be granted 
to the extent they appear necessary.
    (2) If any data, information, or arguments submitted during the 
public comment period appear to raise substantial new questions 
concerning a permit, the Administrator may take one or more of the 
following actions:
    (i) Prepare a new draft permit, appropriately modified;
    (ii) Prepare a revised statement of basis, a fact sheet or revised 
fact sheet, and reopen the comment period; or
    (iii) Reopen or extend the comment period to give interested 
persons an opportunity to comment on the information or arguments 
submitted.
    (3) Comments filed during the reopened comment period shall be 
limited to the substantial new questions that caused its reopening. The 
public notice shall define the scope of the reopening.
    (4) Public notice of any of the above actions shall be issued under 
paragraph (d) of this section.
    (i) Issuance and effective date of permit. (1) After the close of 
the public comment period on a draft permit, the Administrator shall 
issue a final permit decision. The Administrator shall notify the 
applicant and each person who has submitted written comments or 
requested notice of the final permit decision. This notice shall 
include reference to the procedures for appealing a decision on a 
permit. For the purposes of this paragraph (i), a final permit decision 
means a final decision to issue, deny, revise, revoke and reissue, or 
terminate a permit.
    (2) A final permit decision shall become effective 30 days after 
the service of notice of the decision unless:
    (i) A later effective date is specified in the decision; or
    (ii) No comments requested a change in the draft permit, in which 
case the permit shall become effective immediately upon issuance.
    (j) Response to comments. (1) At the time that any final permit 
decision is issued, the Administrator shall issue a response to 
comments. This response shall:
    (i) Specify which provisions, if any, of the draft permit have been 
changed in the final permit decision, and the reasons for the change; 
and
    (ii) Briefly describe and respond to all significant comments on 
the draft permit raised during the public comment period, or during any 
hearing.
    (2) Any documents cited in the response to comments shall be 
included in the administrative record for the final permit decision as 
defined in paragraph (k) of this section. If new points are raised or 
new material supplied during the public comment period, EPA may 
document its response to those matters by adding new materials to the 
administrative record.
    (3) The response to comments shall be available to the public.
    (4) The Administrator will notify in writing any Affected State of 
any refusal to accept recommendations for the permit that the State 
submitted during the public or Affected State review period.
    (k) Administrative record for final permit. (1) The Administrator 
shall base final permit decisions on the administrative record defined 
in this paragraph (k).
    (2) The administrative record for any final permit shall consist 
of:
    (i) All comments received during the public comment period, 
including any extension or reopening;
    (ii) The tape or transcript of any hearing(s) held;
    (iii) Any written material submitted at such a hearing;
    (iv) The response to comments required by paragraph (j) of this 
section and any new materials placed in the record under paragraph (j) 
of this section;
    (v) Other documents contained in the supporting file for the 
permit;
    (vi) The final permit;
    (vii) The application and any supporting data furnished by the 
applicant;
    (viii) The draft permit or notice of intent to deny the application 
or to terminate the permit;
    (ix) The statement of basis for the draft permit;
    (x) All documents cited in the statement of basis; and
    (xi) Other documents contained in the supporting file for the draft 
permit.
    (3) The additional documents required under paragraph (k)(2) of 
this section should be added to the record as soon as possible after 
their receipt or publication by EPA. The record shall be complete on 
the date the final permit is issued.
    (4) This section applies to all final permits.
    (5) Material readily available at the issuing Regional Office, or 
published materials which are generally available and which are 
included in the administrative record under the standards of paragraph 
(j) of this section (``response to comments''), need not be physically 
included in the same file as the rest of the record as long as it is 
specifically referred to in the statement of basis or fact sheet or in 
the response to comments.
    (l) Appeal of permits. (1) Within 30 days after a final permit 
decision has been issued, any person who filed comments on the draft 
permit or participated in the public hearing may petition the 
Environmental Appeals Board to review any condition of the permit 
decision. Any person who failed to file comments or failed to 
participate in the public hearing on the draft permit may petition for 
administrative review only to the extent of the changes from the draft 
to the final permit decision. The 30-day period within which a person 
may request review under this subsection begins with the service of 
notice of the Administrator's action unless a later date is specified 
in that notice. The petition shall include a statement of the reasons 
supporting that review, including a demonstration that any issues 
raised were raised during the public comment period (including any 
public hearing) to the extent required by these regulations unless the 
petitioner demonstrates that it was impracticable to raise such 
objections within such period or unless the grounds for such objection 
arose after such period, and, when appropriate, a showing that the 
condition in question is based on:
    (i) A finding of fact or conclusion of law which is clearly 
erroneous; or
    (ii) An exercise of discretion or an important policy consideration 
which the Environmental Appeals Board should, in its discretion, 
review.
    (2) The Board may also decide on its initiative to review any 
condition of any permit issued under this subpart. The Board must act 
under this paragraph within 30 days of the service date of notice of 
the Administrator's action.
    (3) Within a reasonable time following the filing of the petition 
for review, the Board shall issue an order either granting or denying 
the petition for review. To the extent review is denied, the conditions 
of the final permit decision become final agency action. Public notice 
of any grant of review by the Board under paragraph (l) (1) or (2) of 
this section shall be given as provided in paragraph (d) of this 
section. Public notice shall set forth a briefing schedule for the 
appeal and shall state that any interested person may file an amicus 
brief. Notice of denial of review shall be sent only to applicant and 
to the person(s) requesting review.
    (4) A petition to the Board under paragraph (l)(1) of this section 
is, under 42 U.S.C. 307(b), a prerequisite to the seeking of judicial 
review of the final agency action.
    (5) For purposes of judicial review, final agency action occurs 
when a final permit is issued or denied by EPA and agency review 
procedures are exhausted. A final permit decision shall be issued by 
the Administrator:
    (i) When the Board issues notice to the parties that review has 
been denied;
    (ii) When the Board issues a decision on the merits of the appeal 
and the decision does not include a remand of the proceedings; or
    (iii) Upon the completion of remand proceedings if the proceedings 
are remanded, unless the Board's remand order specifically provides 
that appeal of the remand decision will be required to exhaust 
administrative remedies.
    (6) Neither the filing of a petition for review of any condition of 
the permit or permit decision nor the granting of an appeal by the 
Environmental Appeals Board shall stay the effect of any contested 
permit or permit condition.
    (m) Computation of time. (1) Any time period scheduled to begin on 
the occurrence of an act or event shall begin on the day after the act 
or event.
    (2) Any time period scheduled to begin before the occurrence of an 
act or event shall be computed so that the period ends on the day 
before the act or event, except as otherwise provided.
    (3) If the final day of any time period falls on a weekend or legal 
holiday, the time period shall be extended to the next working day.
    (4) Whenever a party or interested person has the right or is 
required to act within a prescribed period after the service of notice 
or other paper upon him or her by mail, 3 days shall be added to the 
prescribed time.

[FR Doc. 94-28292 Filed 11-18-94; 8:45 am]
BILLING CODE 6560-50-P