[Federal Register Volume 60, Number 81 (Thursday, April 27, 1995)]
[Proposed Rules]
[Pages 20804-20855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10054]




[[Page 20803]]

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Part II





Environmental Protection Agency





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40 CFR Parts 55 and 71



Federal Operating Permits Program; Proposed Rule

  Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 / 
Proposed Rules   
[[Page 20804]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 55 and 71

[FRL 5183-1]
RIN 2060-AD68


Federal Operating Permits Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of opportunity for public hearing.

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SUMMARY: The EPA is proposing a new subpart containing regulations 
setting forth the procedures and terms under which the Administrator 
will administer programs for issuing operating permits to covered 
stationary sources, pursuant to title V of the Clean Air Act as amended 
in 1990 (the Act). Although the primary responsibility for issuing 
operating permits to such sources rests with State, local, and Tribal 
air agencies, EPA will remedy gaps in air quality protection by 
administering a Federal operating permits program in areas lacking an 
EPA-approved or adequately administered operating permits program. 
Federally issued permits will clarify which requirements apply to 
sources and will enhance understanding of and compliance with air 
quality regulations.

DATES: Comments. Comments on the proposed regulations must be received 
by EPA's Air Docket on or before June 26, 1995.
    Public Hearing. A public hearing is scheduled for 10:00 a.m., on 
May 30, 1995, at the address listed below. Requests to present oral 
testimony must be received by May 12, 1995, and the hearing may be 
canceled if no speakers have requested time to present their comments 
by that date. Written comments in lieu of, or in addition to, testimony 
are encouraged.

ADDRESSES: Comments should be mailed (in duplicate if possible) to: EPA 
Air Docket (Mail Code 6102), Attn: Docket No. A-93-51, 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 U.S. 
Environmental Protection Agency, 401 M Street SW, Washington, DC 20460.
    Docket. Supporting information used in developing the proposed 
rules is contained in Docket No. A-93-51. Supporting information used 
in developing 40 CFR part 70 is contained in Dockets No. A-90-33 and 
No. A-93-50. These dockets are 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 M-1500, Waterside Mall, 401 M Street SW, Washington, 
DC 20460. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Candace Carraway (telephone 919/541-
3189) or Kirt Cox (telephone 919/541-5399), U.S. Environmental 
Protection Agency, Office of Air Quality Planning and Standards, 
Information Transfer and Program Integration Division, Mail Drop 12, 
Research Triangle Park, North Carolina 27711. Persons interested in 
attending the hearing or wishing to present oral testimony should 
contact Ms. Susan Curtis in writing at the U.S. Environmental 
Protection Agency, Office of Air Quality Planning and Standards, 
Information Transfer and Program Integration Division, Mail Drop 12, 
Research Triangle Park, North Carolina 27711.

SUPPLEMENTARY INFORMATION:

Comments

    The EPA is unlikely to be able to extend the public comment period. 
Two paper copies of each set of comments are requested. If possible, 
comments should be sent in both paper and computerized form. Comments 
generated on computer should be sent on an IBM-compatible diskette and 
clearly labeled. Computer files created with the WordPerfect 5.1 
software package should be sent as is. Files created on other software 
packages should be saved in an ``unformatted'' mode for easy retrieval 
into WordPerfect. Comments should refer to specific page numbers of 
today's proposal whenever possible.

Outline

    The contents of today's preamble are listed in the following 
outline:

I. Background and Purpose
II. Proposal Summary
III. Detailed Discussion of Key Aspects of the Proposed Regulations
    A. Section 71.2--Definitions
    B. Section 71.3--Sources Subject to Permitting Requirements
    C. Section 71.4--Program Implementation
    D. Section 71.5--Permit Applications
    E. Section 71.6--Permit Content
    F. Section 71.7--Permit Review, Issuance, Renewal, Reopenings, 
and Revisions
    G. Section 71.8--Affected State Review
    H. Section 71.9--Permit Fees
    I. Section 71.10--Delegation of Part 71 Program
    J. Section 71.11--Administrative Record, Public Participation, 
and Administrative Review
    K. Section 71.12--Prohibited Acts
IV. Administrative Requirements
    A. Reference Documents
    B. Office of Management and Budget (OMB) Review
    C. Regulatory Flexibility Act Compliance
    D. Paperwork Reduction Act

I. Background and Purpose

    Title V of the Act as amended in 1990 (42 U.S.C. 7661 et seq.) 
imposes on States the duty to develop, administer, and enforce 
operating permits programs that comply with the requirements of title V 
(section 502(d)(1)). The EPA has 1 year to approve or disapprove a 
submitted program (section 502(d)(1)). Once EPA has approved a State 
program, the covered sources within that program's scope have 1 year to 
submit permit applications to the permitting authority (section 503(c)) 
unless the permitting authority establishes an earlier date. Within the 
first 3 years of the program, the permitting authority must act on all 
applications submitted in the first year of the program (section 
503(c)), and EPA must have an opportunity to object to the proposed 
permit if it does not comply with the Act's requirements (section 
505(b)). Once the permitting authority issues a source its permit, the 
source may not violate any requirement of its permit or operate except 
in compliance with it (section 502(a)).
    Title V also requires that EPA stand ready to issue Federal 
operating permits when States default in their duty to develop and 
administer part 70 programs. Section 502(b) of the Act requires that 
EPA promulgate regulations setting forth provisions under which States 
will develop operating permits programs and submit them to EPA for 
approval. Pursuant to this section, EPA promulgated 40 CFR part 70 on 
July 21, 1992 (57 FR 32250), which specifies the minimum elements of 
State operating permits programs.
    The operating permits program's potential consequences for air 
pollution control and for sources' ability to meet changing market 
demands have made the process of developing and implementing the 
program complex and controversial. Indeed, nearly 20 entities, 
including State and local governments, environmental groups, and 
industry associations, petitioned for judicial review of the part 70 
regulations. Subsequently, EPA decided to propose revisions to part 70. 
See 59 FR 44460 (Aug. 29, 1994). In light of ongoing discussions with 
petitioners, EPA may propose additional revisions to part 70 in the 
future that may also necessitate supplementing the part 71 provisions 
proposed today.
    The EPA intends that proposed part 71 generally follow the approach 
taken in 40 CFR part 70, including the [[Page 20805]] recently proposed 
revisions to part 70. Differences between part 70 and part 71 are noted 
in the discussion of each section of the proposed rule. Where possible 
and appropriate, provisions of part 71 are consistent with part 70. 
Some of the differences between the provisions of part 71 and part 70 
reflect the fact that part 71 programs are expected to be of limited 
duration. The EPA expects that States (and many Tribes) will revise 
their programs so that they become approvable, and responsibility for 
the permits program will be transferred back to the State or Tribe.
    The Agency is aware that many parties have already submitted 
comments expressing both their concerns about and their support for the 
proposed revisions and that these parties are interested in the final 
Agency decisions on many of the issues raised in the part 70 
rulemaking. This proposal for part 71 is not intended in any way to 
prejudge the Agency's decisions in the part 70 rulemaking, but rather 
simply parallels the proposed part 70 revisions in order to be 
consistent with that proposal.
    The primary purpose of the proposed rule is to provide the 
mechanism by which EPA can assume responsibility to issue permits in 
situations where the State, local, or Tribal agency has not developed, 
administered, or enforced an acceptable permits program or has not 
issued permits that comply with the applicable requirements of the Act. 
Secondarily, the proposed rule provides for delegation of certain 
duties that may provide for a smoother program transition when State 
programs are approved. For both of these reasons, the proposed rule 
should strengthen implementation of the Act and enhance air quality 
planning and control.
    Additional benefits of the proposed rule are much the same as those 
of the part 70 State operating permits rule. For example, permits 
issued under part 71 will clarify which requirements apply to a source. 
This clarification should enhance compliance with the requirements of 
the Act. The part 71 program will enable the sources, EPA, and the 
public to better understand the requirements to which the source is 
subject and whether the source is meeting those requirements. Part 71 
permits also provide the vehicle for implementing air toxics programs 
under section 112.
    The comment period for the proposed revisions to part 70 will end 
prior to the comment period for today's rulemaking proposal. It would 
therefore be of limited value for commenters to suggest in response to 
today's rulemaking proposal their concerns with those aspects of the 
part 70 proposed revisions on which proposed part 71 is based. Rather, 
EPA solicits comments on whether there are any provisions in proposed 
part 71 for which EPA has inappropriately proposed consistency with 
part 70 or its proposed revisions or has inappropriately departed from 
part 70 or its proposed revisions.
    The rationale for today's proposal and many of the issues addressed 
in this proposal are discussed in greater detail in a document entitled 
``Supplementary Information for Proposed Federal Operating Permits 
Rule'' (Supplementary Information Document) which is contained in the 
docket for this proposal (Docket No. A-93-51).
    This preamble makes frequent use of the term ``State,'' usually 
meaning the State air pollution control agency that would be the 
permitting authority for a part 70 permit program. The reader should 
assume that use of ``State'' may also include reference to a local air 
pollution agency. In some cases, the term ``permitting authority'' is 
used and can refer to State, local, and Tribal agencies. The term may 
also apply to EPA, where the Agency is the permitting authority of 
record.

II. Proposal Summary

    Sections 502(d)(3) and 502(i)(4) of the Act require EPA to 
promulgate a Federal operating permits program when a State has 
defaulted on its obligation to submit an approvable program within the 
timeframe set by title V or on its obligation to adequately administer 
and enforce an approved program. The rule proposed in this action would 
establish a national template for a Federal operating permits program 
that EPA may administer and enforce in a State. In addition, the 
proposed rule would establish the procedures for issuing Federal 
permits to sources for which States do not have jurisdiction (i.e., OCS 
sources outside of State jurisdictions and sources located in Tribal 
areas). Finally, the proposed rule would establish the procedures used 
when EPA must take action on a permit that has been proposed or issued 
by a State or local agency or Indian Tribe having an approved part 70 
program and that EPA determines is not in compliance with the 
applicable requirements of the Act.
    Like part 70, part 71 requires: (1) The use of a standard permit 
application form; (2) that sources subject to permitting requirements 
pay permit fees that assure adequate program resources and funding; and 
(3) permit issuance, appeal, and renewal procedures that ensure that 
each regulated source can obtain a permit that will assure compliance 
with all of its applicable requirements under the Act. Part 71 sources 
must obtain an operating permit addressing all applicable pollution 
control obligations under the State implementation plan (SIP), Federal 
implementation plan (FIP), or Tribal implementation plan (TIP); the 
acid rain program; the air toxics program under section 112; and other 
applicable provisions of the Act. Sources must also submit periodic 
reports to EPA concerning the extent of their compliance with permit 
obligations.
    When EPA implements a part 71 program, it will cover only the 
geographic area that is not covered by an approved State, local, or 
Tribal program. For example, if a local agency within a State has an 
approved program but the entire State is not covered by an approved 
program, EPA's implementation of a part 71 program for the State would 
not affect the area subject to the approved local program.
    In appropriate circumstances, EPA may delegate to a State, local, 
or Tribal permitting authority some or all of its authority to 
administer a part 71 program. The responsibilities of EPA and the 
delegate agency will be set forth in a Delegation of Authority 
Agreement.
    The EPA will generally cease implementation of a part 71 program 
subsequent to approval of a State operating permits program.

III. Detailed Discussion of Key Aspects of the Proposed Regulations

A. Section 71.2--Definitions

    Generally, the proposed definitions in part 71 would follow the 
definitions in currently promulgated part 70 and its proposed 
revisions, as appropriate. However, some of the definitions used in 40 
CFR part 70 would be modified for use in this part. The key part 71 
definitions (including some which would be defined differently than in 
part 70) are discussed in this section. Others are discussed in the 
preamble sections describing the program areas where they are primarily 
used. Still others are defined in other titles of the Act and the 
regulations promulgated thereunder.
1. Affected State
    The definition of ``affected State'' for purposes of proposed 
Sec. 71.8 would include lands within the exterior boundaries of an 
Indian reservation or other areas over which an Indian Tribe has 
jurisdiction (hereafter ``Tribal area''). If EPA administers a part 71 
program for such an area, EPA would consider the Indian Tribe to be an 
[[Page 20806]] affected State and would provide the Tribe notice of 
draft permits, permit renewals, permit reopenings, and permit 
revisions. Such notice would also be provided when a part 71 program is 
implemented outside of a Tribal area and an applicant source is within 
50 miles of the Tribal area, or is in an area that is contiguous to the 
Tribal area and may affect the air quality in that area, provided the 
Indian Tribe meets the eligibility criteria for being treated in the 
same manner as a State for programs under the Act. See 59 FR 43956 
(Aug. 25, 1994).
    The definition of ``affected State'' for purposes of proposed 
Sec. 71.8 would also include the State or Tribal area and the area 
within the jurisdiction of the air pollution control agency in which 
the part 71 permit, permit revision, or permit renewal is being 
proposed. EPA believes this provision is necessary for part 71, while 
not for part 70. In some cases under a part 71 program, the title V 
permitting authority (EPA) would not be the same as the governmental 
body with general jurisdiction over the area (i.e., the State, Tribe, 
or local air pollution control agency). When EPA is the permitting 
authority, EPA believes it is necessary to notify the States, Tribal 
authorities, and local agencies with jurisdiction over the areas in 
which EPA's action is proposed. Otherwise, these authorities would be 
less apprised of EPA's actions than the neighboring areas that do not 
have jurisdiction over these areas and are less likely to be impacted 
by EPA's actions. The EPA solicits comment on this expansion of the 
term ``affected State,'' and on whether other mechanisms might 
adequately serve to apprise ``host'' jurisdictions of EPA part 71 
actions.
2. Applicable Requirements
    An ``applicable requirement'' is any standard or other requirement 
that applies to a source. This includes any relevant requirement in an 
approved SIP or preconstruction permit. It also includes any pertinent 
standard or other requirement imposed pursuant to any title of the Act, 
such as sections 111, 112, 114(a)(3), 129, 183(e), 183(f), 328, 504(b), 
504(e), 608, or 609. However, EPA does not believe that the provisions 
of sections 604 through 606 and 610 through 612 of title VI of the Act 
must be considered as applicable requirements for title V and included 
in title V permits. The rationale for this determination can be found 
in the preamble to the proposed revision of the part 70 regulations, at 
IV.A.1(b). See 59 FR 44460 (Aug. 29, 1994).
    For purposes of part 71, EPA today incorporates that rationale by 
reference. The EPA also incorporates by reference that notice's 
rationale for adding to the list of applicable requirements any 
requirements that create offsets or limit emissions for the purpose of 
complying with, or avoiding applicable requirements. The proposed 
addition to the part 70 list and today's proposal for part 71 would add 
as an applicable requirement any emissions-limiting requirement that is 
enforceable by citizens or EPA under the Act and that is placed on a 
source for purposes of creating an offset credit or avoiding the 
applicability of applicable requirements.
3. Tribal Areas
    The EPA has published a proposed rule, pursuant to section 
301(d)(2), specifying the provisions of the Act for which EPA believes 
it is appropriate to treat Indian Tribes in the same manner as States. 
See 59 FR 43956 (Aug. 25, 1994) (``Indian Tribes: Air Quality Planning 
and Management,'' hereafter ``proposed Tribal rule''). The proposed 
Tribal rule also addresses the criteria a Tribe must meet in order to 
be eligible for treatment in the same manner as a State for the 
specified provisions of the Act.
    For a Tribe to be eligible for treatment in the same manner as a 
State, it must be Federally recognized (section 302(r)) and must meet 
the three criteria set forth in section 301(d)(2)(A)-(C). Briefly, 
these criteria consist of the following: (1) The Tribe must have a 
governing body carrying out substantial governmental duties and powers; 
(2) the functions to be exercised by the Tribe must pertain to the 
management and protection of air resources within the exterior 
boundaries of the reservation or other areas within the Tribe's 
jurisdiction; and (3) the Tribe must be capable of carrying out the 
functions to be exercised consistent with the terms and purposes of the 
Act and applicable regulations. These criteria and EPA's streamlined 
process for determining compliance with these criteria are described in 
detail in the Tribal rule (59 FR 43961-43964).
    In the Tribal rule, EPA proposes to interpret the Act as granting, 
to Tribes approved by EPA to administer programs under the Act in the 
same manner as States, authority over all air resources within the 
exterior boundaries of an Indian reservation. This would enable Tribal-
approved programs under the Act to address conduct on all lands, 
including non-Indian owned fee lands, within the exterior boundaries of 
a reservation. The proposed Tribal rule would also authorize an 
eligible Tribe to develop and implement programs under the Act for off-
reservation lands that are determined to be within a Tribe's inherent 
sovereign authority to regulate. The rationale for this proposed 
interpretation of Tribal jurisdiction under programs under the Act is 
set out in detail in the proposed Tribal rule, and is incorporated here 
by reference. See 59 FR 43958-43961.
    EPA's final interpretation of Tribal jurisdiction under this Act 
may affect the scope of a part 71 program administered by EPA for 
Tribes. When, pursuant to Federal implementation authority, EPA is 
acting in the place of a State or Tribe under the Act, all of the 
rights and duties that would otherwise fall to the State or Tribe 
accrue instead to EPA. See Central Arizona Water Conservation Dist. v. 
EPA, 990 F.2d 1531, 1541 (9th Cir. 1993), cert. denied, 114 S.Ct. 94 
(1993). Therefore, the scope of Tribal authority under the Act may 
inform EPA's authority in administering a part 71 program for Tribes.
    More specifically, EPA would have authority to implement a Tribal 
part 71 program for any lands within the exterior boundaries of a 
reservation and any off-reservation land over which a Tribe has 
inherent sovereign authority. Tribes determined eligible to be treated 
in the same manner as a State under the Act would be given notice under 
proposed Secs. 71.8 and 71.10 of certain permit actions. All land 
within the exterior boundaries of a reservation and any other lands 
over which a Tribe has demonstrated inherent authority would be 
considered in providing notice to a Tribe. Further, the proposed part 
71 rules provide that, in all instances, the Tribe for the area in 
which a part 71 permit program is being administered will receive 
notice.
    The EPA's proposed Tribal rule is subject to public comment and may 
be modified before it is issued in final form. The EPA may need to make 
conforming changes to the part 71 rules proposed today to reflect any 
relevant revisions made to the Tribal rule.
4. Major Source
    The EPA is proposing to utilize the same approaches to defining 
``major source'' as were used for 40 CFR parts 63 and 70, except that 
today's proposal, like the recently proposed revisions to part 70, 
would change the definition of major source to conform to the 
definition in section 112(a) of the Act and to implementing regulations 
governing hazardous air pollutants (HAP) sources recently promulgated 
in 40 CFR part 63. Section 501(2) of the Act provides, in relevant 
part, that the term ``major source'' means ``any stationary source (or 
any group of stationary sources located within a 
[[Page 20807]] contiguous area and under common control)'' that would 
be a major source under section 112 or a major stationary source under 
section 302 or part D of title I of the Act. Other conditions and 
requirements relevant to the major source definition are:
    a. Section 302 and Part D Sources. Except for sources qualifying as 
support facilities (see paragraph (c) of this section), stationary 
sources can only be aggregated to determine whether they constitute a 
major stationary source subject to section 302 or part D of the Act if 
they are in the same industrial grouping, as determined by their 2-
digit code. These codes can be found in the Standard Industrial 
Classification Manual, 1987.
    b. Section 112 Sources. Stationary sources of HAP must be 
aggregated for the purpose of determining whether they are major 
sources subject to section 112 without regard to their industrial 
grouping.
    c. Support Facilities. The EPA proposes to include in the 
definition of a major source pursuant to section 302 or part D of title 
I of the Act, any facility or emission unit used to support the main 
activity of the source, regardless of its 2-digit code. A support 
facility must be located on the same property as the source it 
supports, or on adjacent property, and be under the control of the same 
entity. Also, at least 50 percent of the support facility's output must 
be dedicated to the source.
    d. Emission Requirements. To be major, a stationary source must 
have the potential to emit pollutants in amounts at or above the major 
source threshold, which is determined by the type of pollutant emitted 
and by the attainment status of the area in which the source is 
located. Thus, the term ``major source'' encompasses the following:
    (1) Air toxics sources with the potential to emit 10 tons per year 
(tpy) or more of any HAP listed pursuant to section 112(b); 25 tpy or 
more of any combination of HAP listed pursuant to section 112(b); or a 
lesser quantity of a given pollutant, if the Administrator so 
specifies. And, once the Administrator promulgates a definition of 
major source for radionuclides, a source would be major if it emits, or 
has the potential to emit, major amounts of radionuclides.
    (2) Sources of air pollutants, as defined in section 302 of the Act 
with the potential to emit 100 tpy or more of any pollutant.
    (3) Except as noted in paragraph (d)(4) of this section, sources 
subject to the nonattainment area provisions of title I, part D, with 
the potential to emit pollutants in the following, or greater, amounts:
    (a) 50 tpy VOC or NOX in serious ozone nonattainment areas;
    (b) 25 tpy VOC or NOX in severe ozone nonattainment areas;
    (c) 10 tpy VOC or NOX in extreme ozone nonattainment areas;
    (d) 50 tpy VOC in ozone transport regions established pursuant to 
section 189 of the Act;
    (e) 50 tpy carbon monoxide (CO) in serious CO nonattainment areas; 
and
    (f) 70 tpy particulate matter (PM-10) in serious particulate matter 
nonattainment areas.
    (4) The NOX thresholds in paragraph (d)(3) of this section do 
not apply in nonattainment areas qualifying for an exemption under 
section 182(f) of the Act. This exemption applies in the case where 
reducing NOX emissions would not reduce ozone formation. In those 
areas, a stationary source of NOX is not considered a major source 
under part D of title I of the Act unless its potential to emit is 100 
tpy or more. In areas not qualifying for this exemption, NOX 
sources are subject to the lower thresholds defined in part D and 
listed in paragraph (d)(3) of this section. Whatever its location, any 
100 tpy source would be considered a major source under section 302 of 
the Act. Also, the major source threshold for VOC in ozone transport 
regions in paragraph (d)(3) of this section does not apply for 
NOX. This threshold was created by section 184(b) of the Act. 
Because section 182(f) of the Act (which requires NOX sources to 
meet the same thresholds as VOC sources) does not refer to section 
184(b) of the Act, the lower threshold for VOC sources in ozone 
transport regions does not apply to NOX sources.
    e. Fugitive Emissions. The fugitive emissions from a stationary 
source shall be considered in making the determination as to whether it 
is a major source when:
    (1) The source belongs to one of the source categories listed in 
the definition of ``major stationary source'' at 40 CFR parts 51 and 52 
which includes source categories regulated by a section 111 or section 
112 standard as of August 7, 1980. Thus, proposed part 71 would follow 
the proposed revisions to part 70 in that sources in categories subject 
to standards set after August 7, 1980, if not otherwise listed, would 
be exempted from the requirement to include fugitive emissions when 
making their major source determination until such time as EPA conducts 
section 302(j) rulemaking to require that fugitive emissions from those 
sources be included.
    (2) The air pollutants emitted are HAP or radionuclides. The EPA 
believes the Act requires that fugitive emissions of HAP or 
radionuclides, to the extent quantifiable, be counted. Section 
112(a)(1) of the Act uses the term ``major source,'' rather than 
``major stationary source,'' and legislative history indicates an 
intent by Congress to treat this definition differently than the 
section 302(j) ``major stationary source'' definition. Moreover, 
section 112 of the Act establishes a new program with a relatively 
narrow focus; it applies only for specific HAP at source categories to 
be determined by EPA. All this suggests that the section 302(j) 
rulemaking requirement does not apply in the context of section 112, 
and that fugitive emissions must therefore be included for the purpose 
of determining whether a source is major under section 112(a)(1).
4. New Source Review
    The definitions for major and minor NSR have been included so they 
can be used to describe the proposed permit revision procedures. In 
some cases, the action to revise a permit will depend on whether the 
change was subjected to major or minor NSR before being processed as a 
part 71 revision.
5. Potential To Emit
    In the proposed definition of ``potential to emit,'' limitations on 
a source's potential to emit would be federally enforceable only if 
they are enforceable by the Administrator and citizens under the Act. 
This differs from the definition currently in part 70 of this chapter, 
in that the part 70 definition only requires that the limitations be 
enforceable by the Administrator. This proposal would follow the 
definition in the proposed revisions to part 70. See 59 FR 44460 (Aug. 
29, 1994).
6. Responsible Official
    The proposed definition of ``responsible official'' would follow 
the definition in the recently proposed revisions to part 70.
7. Title I Modification
    The proposed rule would adopt the definition of ``title I 
modification'' or ``modification under any provision of title I of the 
Act'' that is used in part 70. The proposed definition parallels a 
proposed revision to the regulations at part 70 of this chapter, on 
which EPA solicited comment, and the rationale for the definition in 
the preamble to the proposed revision to part 70 is incorporated herein 
by reference. See 59 CFR 44460 (Aug. 29, 1994). [[Page 20808]] 

B. Section 71.3--Sources Subject to Permitting Requirements

    Section 502(a) of the Act subjects all affected sources (as 
provided in title IV), major sources, sources (including area sources) 
subject to standards or regulations under sections 111 or 112, sources 
required to have permits under parts C or D of title I, and any other 
source in a category designated by EPA, to the permitting requirements 
of title V. Section 502(a) also provides the Administrator the 
discretion to exempt one or more source categories (in whole or in 
part) from the requirement to obtain a permit ``if the Administrator 
finds that compliance with such requirements is impracticable, 
infeasible or unnecessarily burdensome on such categories.'' The Act 
specifies that major sources may not be exempted from these 
requirements. This requirement applies both to sources that are major 
for criteria pollutants and those that are major emitters of the HAP 
listed at section 112(b). However, section 112(r)(7)(F) of the Act also 
provides that sources that are subject solely to regulations or 
requirements under section 112(r) of the Act are not required to obtain 
a permit under this part.
1. Temporary Exemptions for Nonmajor Sources
    Section 70.3(b)(1) of this chapter deferred the applicability of 
part 70 to nonmajor sources (except for affected sources and solid 
waste incineration sources) that would otherwise be subject because 
they are in a source category that is subject to part 70, such as one 
regulated by a section 111 or 112 standard. In the final part 70 rule, 
EPA stated its intent to propose rulemaking to resolve the exception 
status of these nonmajor sources within 5 years following the first 
full or partial approval of a State program with a deferral.
    The EPA proposes to follow the same approach to deferrals for 
purposes of part 71.
2. Permanently Exempted Source Categories
    The EPA proposes to exempt permanently two source categories from 
the requirement to obtain a part 71 permit:
    (1) All sources that would be required to obtain a permit solely 
because they are subject to regulation under the demolition and 
renovation provisions of the NESHAP for asbestos (40 CFR 61.145); and
    (2) All sources that would be required to obtain a permit solely 
because they are subject to regulation under the NSPS for residential 
wood heaters (40 CFR 60.530).
    These source categories were exempted from permitting requirements 
under part 70 because the Administrator determined that permitting such 
sources would be impracticable, infeasible, and unnecessarily 
burdensome. This exemption is proposed to be continued for part 71. A 
more detailed rationale for this exemption is provided in the preamble 
to the part 70 regulations at 57 FR 32263-32264 (July 21, 1992), which 
EPA today incorporates by reference for purposes of part 71.
3. Major Section 112 (HAP) Sources
    Like the proposed revisions to part 70 of this chapter, today's 
proposal would ensure that the definition of major source in this part 
matches the definition in section 112(a) of the Act and in the 
regulations governing HAP sources recently promulgated in 40 CFR part 
63. Under 40 CFR Part 63, EPA definition of a major source of HAP is 
more inclusive than the definition originally promulgated in part 70. 
Unlike part 70, the part 63 definition of major source does not 
reference standard industrial classification (SIC) codes. As defined in 
part 63, an entire contiguous or adjacent plant site is considered a 
single source, rather than being subdivided according to industrial 
classification. See 59 FR 12412 (March 16, 1994). This definition does 
not limit the sources (or emission units) that can be included in a 
stationary source to those having the same 2-digit code. One result of 
this more inclusive definition is that there will likely be some HAP 
sources that are major under part 63 but are not major under part 70, 
as originally promulgated. The EPA believes it is necessary to expand 
the major source definition in part 70 and part 71 to include all 
sources that are major for part 63. Otherwise, those sources subject to 
a section 112 standard or other requirement will not have to apply for 
and obtain a part 71 permit until required to do so by a specific 
section 112 standard. Today's proposal, and the proposed revisions to 
part 70 of this chapter, reflect the more inclusive part 63 definition 
and ensure that HAP sources are treated consistently under rules 
promulgated pursuant to section 112 and title V of the Act.
4. Section 112(r) Pollutants
    Section 70.3(a)(3) of this chapter, as originally promulgated, 
requires any source subject to a standard or other requirement under 
section 112 of the Act to obtain a part 70 permit unless it would be 
subject to part 70 solely because it is subject to regulations or 
requirements under section 112(r). Section 112(r)(3) requires EPA to 
promulgate a list of regulated substances and thresholds for the 
prevention of accidental releases. Section 112(r)(4) establishes 
criteria for the development of a list of regulated substances, 
focusing on acute effects that result in serious off-site consequences, 
rather than chronic effects. As a result, many of the substances listed 
in Sec. 68.130 of this chapter pursuant to section 112(r)(3) (59 FR 
4478 (January 31, 1994)) are not regulated elsewhere under the Act.
    Questions have been raised as to whether Sec. 70.3(a)(1) of this 
chapter, which provides that ``any major source'' is subject to the 
permit rule, requires that sources that have major source levels of 
section 112(r) pollutants must be permitted. Setting aside the issues 
of whether and how major source status is to be determined for section 
112(r) purposes, section 112(r)(7)(F) exempts from title V permitting 
requirements any source that would be subject to title V only as result 
of being subject to section 112(r) requirements. That section provides 
that ``(n)otwithstanding the provisions of title V or this section, no 
stationary source shall be required to apply for, or operate pursuant 
to, a permit issued under such title solely because such source is 
subject to regulations or requirements under this subsection.'' Thus, 
it is clear that even if a source could be considered a ``major 
source'' for section 112(r) purposes, it would not be subject to title 
V permitting on that basis alone. The EPA's proposed revisions to 40 
CFR part 70 would revise Sec. 70.3(a) of this chapter to clarify this 
point. Similarly, proposed Sec. 71.3(a) reflects this approach.

C. Section 71.4--Program Implementation

    Proposed section 71.4(a) describes the circumstances in which EPA 
would establish a full or partial Federal operating permits program for 
a State, excluding Tribal areas. Section 502(d)(3) of the Act requires 
EPA to promulgate, administer, and enforce a program for a State if an 
operating permits program for the State has not been approved in whole 
by November 15, 1995. However, the requirement that EPA establish a 
Federal program by November 15, 1995 for States lacking a fully 
approved program is suspended if a State program is granted interim 
approval. The duty to implement a Federal program then reapplies upon 
expiration of an interim approval, if the State has not received full 
approval by that time.
    As provided in proposed Sec. 71.4(a)(3), EPA would have the 
authority to [[Page 20809]] establish a partial part 71 program in 
limited geographical areas of a State if EPA has approved a part 70 
program (or combination of part 70 programs) for the remaining areas of 
the State. This should avoid unnecessary disruption of partial programs 
that have been approved within a State and avoid intruding into the 
State's administration of its air program where only certain 
jurisdictions have failed to implement an approvable part 70 program.
    The proposed rule also provides for EPA implementation of part 71 
programs to ensure coverage of Tribal areas. The proposed Tribal rule 
generally describes EPA's authority for implementing programs under the 
Act to protect Tribal air quality. 59 FR 43960-43961. That discussion 
is incorporated here by reference.
    In broad overview, the Act authorizes EPA to protect air quality on 
lands over which Indian Tribes have jurisdiction. The overarching 
purpose of the Act is ``to protect and enhance the quality of the 
Nation's air resources so as to promote the public health and welfare 
and the productive capacity of its population.'' section 101(b)(1). The 
members of the public residing on lands over which Tribes have 
jurisdiction are equally entitled to air quality protection as those 
residing elsewhere.
    Several provisions of the Act evince Congressional intent to 
authorize EPA to directly implement programs under the Act where there 
are voids in program coverage (e.g., sections 110(c)(1), 301 (d)(4) and 
502 (d)(3), (i)(4)). Federal implementation of Clean Air Act programs 
on Indian lands is particularly appropriate where Federal action will 
prevent a ``vacuum of authority'' in air quality protection. See 
Phillips Petroleum Co. v. EPA, 803 F.2d 545, 555-56 (10 Cir. 1986) 
(affirming EPA's authority to directly implement Safe Drinking Water 
Act Underground Injection Control program on Indian lands where 
concluding otherwise would contradict the meaning and purpose of the 
Act by creating ``a vacuum of authority over underground injections on 
Indian lands, leaving vast areas of the nation devoid of protection 
from groundwater contamination''). Based on the proposed interpretation 
of Tribal jurisdiction under the Act in EPA's Tribal rule, discussed 
previously, EPA would have authority under today's proposed rules to 
implement part 71 programs for all areas within the exterior boundaries 
of an Indian reservation and other areas over which an Indian Tribe has 
jurisdiction.
    If finalized as proposed, the Tribal rule will authorize Tribes to 
develop and submit title V operating permit programs to EPA for 
approval. The EPA's principal objective would be to assist Tribes in 
developing and administering their own title V operating permit 
programs, similar to the manner in which EPA has assisted States. The 
EPA recognizes that ultimately Tribes are best situated to provide 
primary protection of Tribal air resources. To these ends, EPA's 
proposed Tribal rule provides the following:

    It is EPA's policy to assist Tribes in developing comprehensive 
and effective air quality management programs to insure that Tribal 
air quality management programs will be implemented to the extent 
necessary on Indian reservations. EPA will do this by, among other 
things, providing technical advice and assistance to Indian Tribes 
on air quality issues. EPA intends to consult with Tribes to 
identify their particular needs for air program development 
assistance and to provide on-going assistance as necessary.

59 FR 43961.
    However, EPA also intends to be prepared to implement title V 
programs in the event Tribes do not. To avoid gaps in title V permits 
program coverage, the rules proposed today authorize EPA to implement a 
title V operating permits program for Tribes that do not develop their 
own programs.
    The more difficult issue is when EPA should implement title V 
programs for Tribes. EPA believes it is reasonable to give Tribes some 
opportunity to develop their own title V programs, assuming EPA's final 
Tribal rule authorizes them to do so, before EPA directly implements 
title V programs.
    The part 71 rules propose to authorize EPA to implement the title V 
permit program for Tribes if a Tribal program has not been fully 
approved by November 15, 1997. Within the first two years of the 
program, the permitting authority would be required to take action on 
all applications submitted in the first year of the program. Nothing in 
today's proposal would prevent EPA from implementing a part 71 program 
for a Tribal area subsequent to November 15, 1995 but prior to November 
15, 1997. It may be appropriate, particularly where the absence of an 
operating permits program would create a gap in coverage, for EPA to 
implement part 71 programs in advance of the effective date set by the 
rule. The EPA would discuss early implementation with the affected 
Tribe before adopting an earlier effective date. In such a case, the 
program would become effective when the Administrator provides written 
notice to the Tribal chairperson or analogous Tribal leader.
    The EPA considered several factors in addressing this issue 
including: The opportunity for the development of Tribal programs that 
would render Federal implementation unnecessary; the importance of 
title V coverage, whether Tribal or Federal, in protecting Tribal air 
quality; and, the need to treat the potentially affected regulated 
community fairly and to facilitate certainty in business planning. The 
EPA solicits comments on whether the EPA's proposed approach to the 
effective date of the program is appropriate and whether the two-year 
deadline for taking action on permit applications is appropriate and 
feasible.
    The proposed Tribal rule describes an administrative procedure by 
which EPA would resolve jurisdictional issues affecting Tribes. See 59 
FR 43962-43963 (Aug. 25, 1994). That discussion is incorporated here by 
reference. Generally, EPA expects these issues to involve the precise 
boundary of the reservation in question and, less frequently, competing 
claims of jurisdiction over land which is outside of the exterior 
boundaries of a reservation.
    Briefly summarized, the proposed Tribal rule would require EPA to 
notify the appropriate governmental entities regarding the Tribe's 
assertion of jurisdiction.1 Those entities would have fifteen days 
following receipt of EPA's notification to provide formal comments to 
EPA regarding any dispute they might have with the Tribe's assertion of 
jurisdiction. Where the dispute concerns jurisdiction over off-
reservation lands, appropriate governmental entities may request a one-
time fifteen-day extension to the comment period. In all cases, 
comments from appropriate governmental entities would have to be 
offered in a timely manner and be limited to the Tribe's jurisdictional 
assertion. Where no timely comments are presented, EPA would conclude 
there is no objection to the Tribe's assertion. To raise a competing or 
conflicting claim, a commenter would be required to clearly explain the 
substance, basis, and extent of its objections. Finally, where EPA 
receives timely notification of a dispute, it could obtain such 
additional information and documentation as it believes appropriate 
and, at its option, consult with the Department of the Interior.

    \1\For purposes of this rule, EPA is proposing to adopt the same 
definition of ``governmental entities'' as the Agency did in its 
December 1991 Water Quality Standards regulation. See 56 FR 64876 at 
64884 (Dec. 12, 1991).
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    For purposes of identifying the Tribal area for which a part 71 
program is [[Page 20810]] implemented, EPA proposes to follow the 
approach to resolving jurisdictional issues taken in the Tribal air 
rule. If the Tribal rule is finalized as proposed, EPA would notify 
appropriate governmental entities of the boundary of the Tribal area 
for a part 71 program at least 90 days prior to the effective date of 
the program. Those entities would then have an opportunity to provide 
formal comments prior to the program's effective date, as discussed 
above. Where no timely comments are presented, EPA would make a 
determination that the boundary for the part 71 program would be as 
proposed in the notice. Subsequently, EPA would publish a notice in the 
Federal Register which describes the precise boundaries of the part 71 
program.
    Where EPA identifies a jurisdictional dispute, it may obtain 
additional information and documentation and consult with the 
Department of the Interior prior to making a determination. The EPA 
would subsequently publish a notice in the Federal Register which 
describes the precise boundaries of the part 71 program. If the dispute 
cannot be resolved promptly, EPA would retain the option of 
implementing the part 71 program in the areas that are clearly shown to 
be part of the reservation (or are otherwise within the Tribe's 
jurisdiction). This will allow EPA to implement a part 71 program that 
covers all undisputed areas, while withholding action on the portion 
that addresses areas where a jurisdictional issue has not been 
satisfactorily resolved.
    As proposed in Sec. 71.4(c), EPA would promulgate a part 71 program 
for a permitting authority (including an eligible Tribe) if EPA 
determines that an approved program is not adequately administered or 
enforced and the permitting authority fails to correct the deficiencies 
that precipitated EPA's finding.2 Where the acid rain portion of 
an operating permits program is not adequately administered, EPA could 
withdraw either the entire program or just the acid rain portion of the 
program. If EPA finds that the nonacid rain portion of the operating 
permits program is being adequately administered, EPA would generally 
withdraw only the acid rain portion. In such a case, EPA would issue 
the acid rain portion of the source's permit using the procedures set 
forth in 40 CFR part 72, and the State would continue to issue the 
remaining portion of the operating permits and would issue all permits 
to sources other than acid rain sources.

    \2\Although this preamble section addresses withdrawing approval 
of State operating permit programs, note that eligible Tribes would 
be treated in the same manner as States for purposes of withdrawal 
of program approval, assuming the Tribal rule is finalized as 
proposed. In that case, the provisions of 40 CFR 70.10(b)(1), which 
address State failure to administer or enforce an approved part 70 
program, and 40 CFR 70.10(c), which addresses criteria for 
withdrawal of State programs, would apply equally to Tribal 
programs.
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    When EPA determines that a State is not adequately administering 
its program, EPA would provide notice to the State as required by 40 
CFR 70.10(b)(1). The State would then have 90 days in which to take 
significant action to assure adequate administration and enforcement of 
the program. Where EPA determines that the State has not taken such 
significant action within the specified time, EPA could begin 
implementing a Federal program immediately. Otherwise, if the State had 
not fully corrected the deficiency that prompted EPA's determination of 
failure to administer or enforce within 18 months of the determination, 
EPA would begin implementing a Federal program 2 years after the date 
of the determination. This framework is identical to that which EPA 
promulgated in part 70 at 40 CFR 70.10(b) (2) and (4).
    The EPA acknowledges that its intent to retain the option of 
withdrawing only the acid rain portion of a program in appropriate 
situations is a change of position from EPA's statement in the preamble 
to the final part 70 rule (see 57 FR 32260) that should a State fail to 
adequately administer phase II of the acid rain program, EPA will take 
back the entire operating permits program. There, EPA stated that in 
such a situation EPA would implement part 71, as supplemented by 
Federal acid rain permit issuance procedures, and would issue permits 
to acid rain sources within the State. The EPA notes that this 
discussion was not reflected in regulatory language in the finally 
promulgated part 70 rule, which instead provided EPA discretion to 
withdraw program approval in whole or in part. See 40 CFR 70.10(c)(1). 
Moreover, EPA explained in a May 21, 1993 guidance document entitled 
``Title IV-Title V Interface Guidance for States,'' that if EPA finds 
that a part 70 program is not being properly administered or enforced 
for title IV purposes, EPA will publish a notice in the Federal 
Register making this announcement and noting where permit applications 
are to be delivered. When publishing such a Federal Register notice, 
EPA may elect to withdraw approval for an entire part 70 program 
submittal or only the acid rain portion of it and may apply appropriate 
sanctions under section 179(b) of the Act.
    Under part 71, EPA would retain the option of withdrawing only the 
acid rain portion of the program and issuing a phase II acid rain 
permit, rather than withdrawing the entire part 70 program and issuing 
a comprehensive part 71 operating permit. The EPA believes that it is 
reasonable and appropriate to depart from the policy stated in the 
preamble to the final part 70 rule regarding withdrawal of phase II 
acid rain authority because EPA believes that deficiencies with respect 
to the acid rain portion of a State program would generally not 
adversely affect the remaining portions of the State program. By 
withdrawing approval of just the acid rain portion, EPA would minimize 
disruption of otherwise adequate State air programs. It should be noted 
that the acid rain portion of a source's operating permit contains 
discreet requirements that are not intertwined with the remaining 
provisions of the permit. For example, phase II acid rain permits 
generally contain a requirement that a source hold sufficient 
allowances to cover emissions, specify requirements for NOX 
emissions and provide for continuous emissions monitoring in accordance 
with 40 CFR part 75. Amendments and revisions to such provisions are 
subject to a different set of procedures as specified in 40 CFR part 
72. Thus, separate Federal administration of the acid rain permitting 
program in a State that fails to adequately administer the acid rain 
portion of its operating permits program would be a logical step where 
the remainder of the part 70 program was being adequately administered 
by the State.
    The EPA solicits comment on this approach, and on whether this 
approach is consistent with the requirements of title V. The EPA 
stresses that section 502(i)(1) of the Act allows EPA to determine that 
only a portion of an approved State program is not being adequately 
administered and enforced. While section 502(i)(1) does not explicitly 
provide that where a State fails to correct an identified deficiency in 
a finding under section 502(i)(4), EPA may promulgate, administer, and 
enforce only the relevant portion of the program, EPA believes that 
Congress could not have intended for EPA to be compelled to withdraw 
and take over entire part 70 programs where only discrete portions of 
the program are deficient. Such a result would be unnecessarily 
disruptive of State air programs and would require much greater Federal 
intrusion into the State's air program than may be necessary to correct 
the faulty portion. [[Page 20811]] 
    Section 71.4(d) addresses the circumstances in which EPA proposes 
to issue permits to OCS sources (sources located in offshore waters of 
the United States) pursuant to the requirements of section 328(a) of 
the Act. Section 328 of the Act transferred from the Department of the 
Interior to EPA the authority to regulate air pollution from sources 
located on the OCS off of the Atlantic, Arctic, and Pacific coasts and 
in the Gulf of Mexico east of 87.5 degrees longitude. In today's 
notice, which proposes revisions to 40 CFR part 55 in addition to the 
proposed Federal operating permit rules, EPA is proposing to require an 
OCS source to comply with the requirements of part 71 if the source is 
located beyond 25 miles of States' seaward boundaries or if the source 
is located within 25 miles of a State's seaward boundary and the 
requirements of part 71 are in effect in the corresponding onshore area 
(COA). Section 328 requires that EPA establish requirements for sources 
located within 25 miles of a State's seaward boundary that are the same 
as would be applicable if the source were located in the COA.
    Part 71 permits would be issued to OCS sources by the Administrator 
or a State or local agency that has been delegated the OCS program in 
accordance with part 55 of this chapter. As OCS sources beyond 25 miles 
of States' seaward boundaries would become subject to part 71 
immediately upon the effective date of part 71, they would be required 
to submit part 71 permit applications within 1 year of becoming subject 
to this part.
    Proposed Sec. 71.4(e) describes how EPA would take action on 
objectionable permits that have already been proposed or issued by a 
permitting authority. Section 505(b) of the Act and 40 CFR 70.8 (c) and 
(d) require EPA to object to the issuance of any permit that EPA 
determines is not in compliance with the applicable requirements of the 
Act. If the permitting authority does not take appropriate action in 
response to EPA's objection, EPA shall revise, terminate, or revoke the 
permit if it has been issued and shall correct and issue the permit if 
it has not been issued.
    As provided in 40 CFR 70.7(g) (Sec. 70.7(j) in the proposed 
revisions to part 70), if EPA finds that a State-issued permit must be 
reopened to correct an error or add newly applicable requirements, EPA 
will notify the permitting authority. If the permitting authority does 
not take appropriate action, EPA will revise and reissue the permit 
under part 71.
    As provided at 40 CFR 70.8(c)(1), EPA will object to the issuance 
of any proposed permit that EPA determines is not in compliance with 
the applicable requirements of the Act or the requirements of part 70. 
If EPA objects within 45 days of receipt of a copy of the proposed 
permit, the permitting authority may not issue the proposed permit to 
the source. The EPA's objection, as required by 40 CFR 70.8(c)(2), 
shall include a statement of EPA's reasons for objecting and a 
description of the permit terms that the permit must include to respond 
to the objection. Moreover, under 40 CFR 70.8(c)(3), failure of the 
permitting authority to: (1) Comply with requirements in 40 CFR 70.8 
(a) and (b) to notify EPA and affected States, (2) submit to EPA any 
information necessary to adequately review the proposed permit, or (3) 
process the permit under procedures approved to meet the public 
participation requirements of part 70 would also constitute grounds for 
EPA objection to a proposed permit.
    Under 40 CFR 70.8(c)(4), if the permitting authority fails within 
90 days after EPA's objection to revise and submit to EPA a new 
proposed permit responding to the objection, EPA will issue or deny the 
permit. Proposed Sec. 71.4(e)(1) would establish the authority for 
EPA's permit issuance or denial in these situations.
    Likewise, proposed Sec. 71.4(e)(1) would establish the authority 
for EPA to revise, terminate, or revoke a permit in response to a 
citizen petition filed under 40 CFR 70.8(d). The EPA's action to 
revise, terminate or revoke a permit would then occur consistent with 
40 CFR 70.7(g)(4) or (5)(i) and (ii) (Secs. 70.7(j)(4) or (5)(i) and 
(ii) of the proposed revisions to part 70), except in unusual 
circumstances, such as where there is a substantial and imminent threat 
to the public health and safety resulting from the deficiencies in the 
permit. Usually, the permitting authority would have 90 days from 
receipt of EPA's objection in response to a citizen petition to resolve 
the objection and terminate, revise, or revoke and reissue the permit 
in accordance with EPA's objection. See 40 CFR 70.7(g)(4), 
Sec. 70.7(j)(4) of the proposed revisions to part 70. If the permitting 
authority failed to resolve the objection, EPA would terminate, revise, 
or revoke and reissue the permit, after providing at least 30 days 
notice to the permittee in writing of the reasons for such action 
(which may be given at any time during the time period after EPA 
objects to the permit) and providing the permittee an opportunity for 
comment on EPA's proposed actions and an opportunity for a hearing. See 
40 CFR 70.7(g)(5)(i) and (ii) and Secs. 70.7(j)(5)(i) and (ii) of the 
proposed revisions to part 70. Proposed Sec. 71.4(e)(2) would provide 
the authority for EPA to take such action.
    Section 71.4(f) of the proposed rule would authorize EPA to use 
part 71 in its entirety or any portion of the regulations, as needed. 
For example, EPA could use the provisions for permitting OCS sources 
without permitting any other types of sources. Similarly, EPA could use 
only portions of the regulations to correct and issue a State permit 
without, for example, requiring an entirely new application. Proposed 
Sec. 71.4(f) would also authorize EPA to exercise its discretion in 
designing a part 71 program. The EPA would be able to, through 
rulemaking, modify the national template by adopting appropriate 
portions of a State's program as part of the Federal program for that 
State, provided the resulting program is consistent with the 
requirements of title V.
    The EPA believes it is reasonable and appropriate to provide this 
flexibility in implementing a part 71 program. First, such flexibility 
would enable EPA to intervene in the administration and enforcement of 
an operating permits program only to the extent necessary to correct 
deficiencies. Second, it would provide EPA, after notice and comment 
rulemaking, the ability to appropriately tailor part 71 to the State in 
which it would be implemented, thus resulting in less disruption of the 
State air program and the daily operations of covered sources than 
might otherwise occur. While EPA believes that part 71 as proposed 
today should not result in unnecessary disruption, the Agency 
recognizes that further State-specific tailoring may be appropriate.
    Proposed Sec. 71.4(g) clarifies that EPA would publish a notice of 
the effective dates of part 71 programs. The EPA would publish such 
notice in the Federal Register and would, to the extent practicable, 
publish notice in a newspaper of general circulation in the area 
affected by the part 71 program. The EPA would also publish such notice 
for delegations of part 71 programs. Finally, in addition to notices in 
the Federal Register and newspapers of general circulation, EPA would 
send a letter to the Governor (or his or her designee) or the Tribal 
governing body for the affected area informing him or her of when the 
part 71 program or its delegation would become effective.
    Section 71.4(h) proposes that EPA would be authorized to promulgate 
and administer a part 71 program in its entirety even if only limited 
deficiencies exist in a State or Tribal program. The EPA believes that 
such authority is [[Page 20812]] necessary because limited deficiencies 
could have wide-ranging impacts within a program. For example, if a 
State program failed to provide adequate opportunities for public or 
affected State participation in permitting actions, the integrity of 
permit content could become suspect, the public and affected States 
would be excluded from administrative and judicial review of permit 
actions, and EPA oversight of such actions could suffer, as a result of 
citizens not having standing to petition EPA to object to permits.
    Section 71.4(i) of the proposed rule describes how EPA would take 
action on the initial part 71 permits in the event that a full or 
partial part 71 program becomes effective in a State or Tribal area 
prior to the permitting authority issuing part 70 permits to all 
subject sources. The EPA proposes to utilize a 3-year transition plan 
similar to that required of States under Sec. 70.4(b)(11)(ii) of this 
chapter. Under proposed Sec. 71.4(i)(1), any remaining sources that had 
not yet received part 70 permits from the permitting authority would be 
required to submit applications to EPA for part 71 permits within 1 
year of becoming subject to the part 71 program. The sources that had 
already received part 70 permits, if any, would continue to operate 
under those permits, unless EPA had withdrawn part 70 approval due to 
the inadequacy of the part 70 permits, in which case those sources 
would be required to obtain part 71 permits. After receiving part 71 
permit applications, EPA would act on one-third of those applications 
each year for the first 3 years of the part 71 program. As previously 
issued part 70 permits needed to be revised or renewed, sources would 
apply to EPA for such revisions or renewals under part 71.
    As provided in proposed Sec. 71.4(j), EPA would have the discretion 
to delegate some or all of its authority to administer a part 71 
program to a State or eligible Tribe. The delegation process is 
described further in the discussion of proposed Sec. 71.10.
    Section 71.(4)(k) of the proposed rule would authorize EPA to 
administer and enforce part 70 permits issued by a permitting authority 
under a previously-approved part 70 program after EPA has withdrawn 
approval of such program until they are replaced by part 71 permits 
issued by EPA.
    Proposed Sec. 71.4(l) describes what would happen after EPA 
approves a part 70 program for an area in which a part 71 program has 
been effective and how the Administrator, or the new part 70 permitting 
authority, will administer and enforce the part 71 permits until they 
are replaced by part 70 permits. For a State that submits a late part 
70 submittal to EPA such that EPA has not approved or disapproved the 
submittal by November 15, 1995, part 71 becomes automatically effective 
until the State's part 70 program is approved by EPA. However, sources 
are not obligated to submit applications to EPA until 12 months after 
they have become subject to an effective part 71 program (unless an 
earlier submittal date is set by EPA). Therefore, if the State's part 
70 program is approved shortly after part 71 is effective, it is highly 
likely that sources will submit applications to the permitting 
authority rather than to EPA. Upon approval of the part 70 program, EPA 
will suspend further action on applications for part 71 permits. Where 
appropriate, applications received by EPA prior to approval of the part 
70 program will be forwarded to the permitting authority after approval 
of the part 70 program.
    Finally, proposed Sec. 71.4(m) provides how EPA would implement the 
provision of section 325 of the Act if the Governor of Guam, American 
Samoa, the Virgin Islands, or the Commonwealth of the Northern Mariana 
Islands petitions the Administrator to exempt any source or class of 
sources from the requirements of title V of the Act.

D. Section 71.5--Permit Applications

    Much of proposed Sec. 71.5 is modeled on the provisions currently 
promulgated at 40 CFR 70.5, and on the proposed revisions to that 
section. See 59 FR 44460 (Aug. 29, 1994). In this notice, EPA 
incorporates by reference the rationale provided for these provisions, 
to the extent such rationale apply to a Federal operating permit 
program as well as to State permit programs. Copies of the part 70 rule 
as promulgated in July 1992 and of the notice proposing revisions to 
part 70 have been included in the docket for this rulemaking. The 
Supplementary Information Document contains a general discussion and 
explanation of the proposed rule's application requirements. Where 
proposed part 71 differs from promulgated part 70 or the proposed 
revisions to part 70 the discussion goes into greater detail describing 
the part 71 proposal. Where proposed part 71 follows part 70 precedent, 
shorter general descriptions of the part 71 proposal are supplied. It 
should be noted that the formatting of proposed Sec. 71.5 does not 
correspond to that of 40 CFR 70.5. In developing proposed part 71, EPA 
determined that the formatting of 40 CFR 70.5 could be improved so that 
it is easier to follow. The EPA requests comment on this proposed 
formatting difference.
1. Insignificant Activities and Emission Levels
    Proposed Sec. 71.5(g) would allow insignificant activities or 
emission levels to be exempt from the application content requirements 
of proposed Sec. 71.5(f). These exemptions would reduce the 
administrative burden on sources by eliminating the requirement that a 
source include in its application an extensive analysis of 
insignificant activities (or emissions units) and quantities of 
emissions. This proposal is based on the part 70 provisions regarding 
insignificant activities and emissions levels, and is supported by the 
Alabama Power decision, where the court found that emissions from 
certain small modifications and emissions of certain pollutants at new 
sources could be exempted from some or all PSD review requirements on 
the grounds that such emissions would be de minimis. See Alabama Power 
v. Costle, 636 F.2d 323, 360 (D.C. Cir., 1979). In other words, EPA may 
determine levels below which there is no practical value in conducting 
an extensive review. In general, an agency can create this exemption 
where the application of a regulation across all classes will yield a 
gain of trivial or no value. A determination of when a matter can be 
classified as de minimis turns on the assessment of particular 
circumstances of the individual case. For EPA to establish that an 
emissions threshold is trivial and of no consequence, EPA must consider 
the size of the particular emissions threshold relative to the major 
source threshold applicable in the various areas where a regulation 
will be in effect.
    In the rulemaking establishing requirements for State operating 
permits programs under part 70, many commenters suggested that EPA 
create a de minimis exemption level for regulated air pollutants, and 
that emissions information not be required for pollutants below this de 
minimis level. In the final part 70 rule, EPA gave States discretion to 
develop lists of insignificant activities and to set insignificant 
emission levels if certain criteria were met and subject to EPA review 
and approval. In the proposed part 71 rule, EPA has fashioned 
provisions for insignificant activities or emission levels that meet 
the minimum requirements for States under the part 70 rulemaking, while 
taking a unique Federal approach, based on the Agency's experience in 
reviewing State provisions for insignificant activities and emission 
levels in the course of part [[Page 20813]] 70 operating permits 
program reviews. The EPA notes, however, that the part 70 provisions on 
insignificant activities and emissions levels are the subject of 
ongoing litigation settlement discussions, and that a possible result 
of these discussions could be a modification of the part 70 provisions 
on this issue. To the extent any future proposed revisions to the part 
70 insignificant activities and emissions level criteria are more 
stringent than the provisions proposed for part 71, EPA may have to 
supplement this proposal to make the two rules consistent.
    In this rulemaking, EPA proposes to exempt all information required 
by proposed Sec. 71.5(f) concerning insignificant activities inclusion 
in the permit application, while for insignificant emission levels, 
application information completeness requirements would vary from 
proposed Sec. 71.5(f). To ensure that all significant information is 
included in the permit application, the proposed rule includes a 
provision stating that no activities or emission levels shall be exempt 
from proposed Sec. 71.5(g) if the information omitted from the 
application is needed to determine or impose any applicable 
requirement, to determine whether a source is major, to determine 
whether a source is subject to the requirement to obtain a part 71 
permit, or to calculate the fee amount required under the fee schedule 
established pursuant to proposed Sec. 71.9. The proposed prohibition 
against omitting information from the application that is relevant to 
the determination or imposition of applicable requirements means that 
an activity (or emissions unit) that has applicable requirements could 
not be considered as an insignificant activity or to have insignificant 
emission levels. Applicable requirements in this context include any 
standard or requirement as defined in proposed Sec. 71.2. The proposed 
provision that the exemption not interfere with the requirement to 
obtain a part 71 permit is necessary to insure that all the 
requirements of the Act are met, because the requirements of title V of 
the Act are not included in the proposed definition of applicable 
requirements. An activity or emission level could not be insignificant 
if it constitutes a major source. An activity or emission level could 
not be insignificant if omitting the emissions from the application 
would prevent the aggregate source emissions from exceeding the major 
source threshold or a threshold that would trigger an applicable 
requirement, such as a modification under section 112(g). This proposal 
would further prohibit these exemptions from being used by applicants 
when information needed to calculate the fee amount required under the 
fee schedule would be omitted from the application. Although the fee 
schedule provided in proposed Sec. 71.9(c)(1) would exclude 
insignificant emissions from being counted for fee purposes, this 
provision would be retained for instances where the Administrator 
promulgates a different fee schedule for a particular state pursuant to 
proposed Sec. 71.9(c)(7). Under such a fee schedule, information 
concerning insignificant activities or emissions may be needed to 
calculate the fee amount.
    a. Insignificant Activities. To meet the requirements of part 70, 
States submitted rules incorporating a wide variety of approaches for 
implementing these provisions. Many State part 70 program submittals 
included extensive lists of insignificant activities. Some of the 
listed activities were so broadly defined that it was difficult to 
determine if they would interfere with the determination or imposition 
of applicable requirements or affect major source status, seemingly 
inviting the omission of significant information. Some were so narrowly 
defined that industry would be invited to propose an endless number of 
additional listings for inclusion in the rules in future years, 
creating an administrative burden on the States. In the course of EPA's 
review of part 70 permit program submittals, it was also clear that 
there were very few insignificant activities that are common among the 
States. The EPA proposes to include a short list of broadly-defined 
insignificant activities that are frequently included in State part 70 
program submittals. These activities commonly occur in residential 
settings, are not subject to applicable requirements (with the possible 
exception of certain SIP-based requirements for residential heating 
sources that are not commonly adopted on a nation-wide basis), and 
normally have small quantities of emissions. Emission units at a source 
that are on the list of insignificant activities in proposed 
Sec. 71.5(g)(1) could not be treated as insignificant (1) when the 
activities are subject to an applicable requirement, including an 
applicable requirement of a Federal or Tribal implementation plan, (2) 
if information concerning the activities would interfere with any 
applicability determination, (3) if the insignificant activities 
constitute a major source, (4) if not counting the emissions from 
insignificant activities in the total source emissions would prevent 
the source from being determined to be a major source, or (5) if any 
information that would otherwise be left off of the permit application 
would be needed to calculate the fee amount required under the fee 
schedule established under proposed Sec. 71.9.
    b. Insignificant Emission Levels. The proposal would further allow 
emission units or activities with small emissions to be included in the 
application in a streamlined manner, as long as the application did not 
exclude information needed to (1) determine or impose applicable 
requirements, (2) determine the requirement to obtain a permit, (3) 
determine whether the source is a major source, or (4) calculate the 
fee amount, and provided the emissions caps of proposed Sec. 71.5(g)(2) 
were not exceeded. The EPA believes that this would ensure that enough 
information will be provided that the permitting authority can make a 
quick assessment of whether the emissions are insignificant. 
Nevertheless, to ensure that the rule is being applied properly by the 
applicant, the permitting authority could request additional 
information if needed. Note that to qualify as insignificant emissions, 
the emissions could not count toward or trigger a unit-based de minimis 
permit revision under proposed Sec. 71.7(f). The only emissions units 
that would have emissions levels qualifying as insignificant under 
proposed Sec. 71.5(g) would be units that would not be included in the 
part 71 permit anyway because they could not be subject to applicable 
requirements, contribute to the triggering of an applicable 
requirement, or affect a major status determination. Therefore, for 
existing units with insignificant emissions there would not be any 
permit terms or conditions to revise and for new units with 
insignificant emissions there would not be any permit terms or 
conditions to add to the part 71 permit.
    The emissions caps of proposed Sec. 71.5(g)(2) are expressed in 
terms of potential to emit, not actual emissions. The use of potential 
to emit is consistent with how major source thresholds (which were used 
in developing the proposed caps) are defined. Furthermore, EPA believes 
that basing the caps on potential to emit provides greater assurance 
that only truly insignificant levels of emissions would be eligible for 
streamlined treatment on the permit application form.
    In commenting on the necessity of de minimis levels to be 
established in the part 70 rulemaking, one commenter suggested the 
level be set at 5 tpy or 20 percent of the applicable major source 
threshold. An examination of these [[Page 20814]] levels in terms of 
major source thresholds is necessary to determine if they are trivial. 
For example, a 5-ton emission is 20 percent of the major source 
threshold for serious and severe ozone nonattainment areas, but 50 
percent of the major source threshold in extreme ozone nonattainment 
areas. A level set at 20 percent of the applicable threshold would 
equal 2 tons in extreme ozone nonattainment areas, but would be 20 tons 
in moderate nonattainment areas. It is not clear that emissions of this 
size could be characterized as trivial in all areas for all air 
pollutants, especially because emissions at these levels may trigger 
State major new source review (NSR), thus triggering applicable 
requirements.
    Therefore, EPA is proposing and soliciting comment on setting the 
threshold for insignificant emission levels at 1 tpy for regulated air 
pollutants, except HAP, in all areas except extreme ozone nonattainment 
areas, where the threshold is proposed to be 1,000 pounds (lb) per 
year. These levels would be 1 percent of the major source threshold in 
moderate nonattainment areas, 2 percent in serious ozone nonattainment 
areas, 4 percent in severe ozone nonattainment areas, and 5 percent of 
the threshold in extreme ozone nonattainment areas. The EPA believes 
that these levels are trivial and would not prevent EPA from collecting 
any information of a consequential or significant nature. The lower 
threshold for extreme ozone nonattainment areas is necessary due to the 
increased concern that permitting authorities would have in such areas. 
Permitting authorities in these areas have collected information 
pertaining to permitted sources with relatively small emissions. This 
level of concern has been necessary in order to achieve emission 
reductions sufficient to make progress towards meeting the NAAQS.
    The EPA proposes and solicits comment on setting the exemption 
threshold for HAP for any single emissions unit to be the lesser of 
1,000 lb per year or the de minimis levels established under section 
112(g) of the Act. In the part 70 rulemaking, EPA recommended that the 
emissions levels for HAP established for the purpose of setting 
insignificant emission levels not be less stringent than the levels 
established for modifications under section 112(g) of the Act. Although 
this was only a recommendation, many States structured their emissions 
levels for HAP using these levels as upper bounds. Note that the 
provisions of proposed Sec. 71.5(g) would prevent a part 71 emissions 
unit from having insignificant emissions levels if the unit was subject 
to applicable requirements of section 112(g). The EPA also proposes 
that the level for HAP should never be higher than 1,000 pounds per 
year. This is necessary because the major source threshold is 10 tpy 
for a single HAP, thus ensuring that insignificant emissions of HAP 
will never exceed 5 percent of the major source threshold. The EPA 
believes that these levels are trivial and would not prevent EPA from 
collecting any information of a consequential or significant nature.
    The EPA proposes and solicits comment on setting the threshold for 
insignificant emissions for the aggregate emissions of any regulated 
air pollutant, excluding HAP, from all emission units located at a 
facility to not exceed a potential to emit of 10 tpy, except in extreme 
ozone nonattainment areas, where potential to emit may not exceed 5 
tpy. The EPA further proposes and solicits comment on setting the 
threshold for insignificant emissions levels for the aggregate 
emissions of all HAP from all emission units located at a facility to 
not exceed a potential to emit of 5 tpy or the section 112(g) de 
minimis levels, whichever is less. These provisions would provide more 
certainty to the permitting authority because no emissions values in 
terms of potential or actual emissions would be required to be included 
in the application for emissions qualifying as insignificant, and it is 
conceivable that large quantities of emissions could be hidden from 
scrutiny without such aggregate emission thresholds. In addition, these 
provisions would clarify for applicants that large numbers of similar 
sources, such as valves or flanges, that might be exempt on an 
individual basis, would have to be described in detail in the 
application if the aggregate emissions from all the units are relevant 
to the applicability of the Act's requirements or the determination of 
major source status.
    Minimal information concerning emissions units with insignificant 
emissions would have to be provided in a list in the application. This 
list would have to describe the emission units in sufficient detail to 
identify the source of emissions and demonstrate that the exemption 
applies. For example, the description ``space heaters'' on a list may 
not provide sufficient information because there could be an unlimited 
number of units with potentially significant emissions, but the 
description, ``two propane-fired space heaters,'' places a limit on any 
estimate of emissions and would provide enough information. 
Descriptions may need to specify not only the number of units meeting 
the description, when more than one unit is included under a single 
description, but in many cases capacity, throughput, material being 
processed, combusted, or stored, or other pertinent information may 
need to be provided. For example, ``storage tank'' would be 
insufficient, but ``250-gallon underground storage tank storing 
unleaded gasoline, annual throughput less than 2,000 gallons,'' would 
be sufficient for quick assessment, because this level of information 
is sufficient to demonstrate whether any applicable requirements apply 
and that the 1 tpy emissions cap would most likely not be exceeded.
    Emissions units (or activities) with insignificant emissions that 
might be logically grouped together on the list that would be required 
by proposed Sec. 71.5(g)(2) but that have dissimilar descriptions, 
including dissimilar capacities or sizes, would be required to be 
listed separately in the application. This is necessary to prevent 
large numbers of emissions units from being grouped together on the 
list in such a way that the description would be too broad to provide 
sufficient information to identify the emissions units and provide an 
indication of whether or not the exemption applies. On the other hand, 
in certain cases, large numbers of certain activities could be grouped 
together on the list. For example, a complex facility may have hundreds 
of valves and flanges where the aggregate potential to emit of all the 
valves and flanges does not exceed the aggregate emissions cap and 
there are no applicable requirements that apply to the valves and 
flanges. In this case, it would most likely be appropriate to list all 
the valves and flanges together as one listed item, including the 
number of units meeting the exemption.
    The EPA solicits comment on the approach regarding insignificant 
activities and emission levels proposed in this notice, particularly on 
whether this approach provides greater clarity than that discussed in 
promulgated part 70, and whether the approach proposed in this notice 
would be compatible with the approaches developed by States to date. 
The EPA also solicits comment regarding whether the approach proposed 
today provides adequate safeguards to insure that part 71 permit 
applications do not exclude significant information, especially all 
information necessary to determine applicability of Act requirements 
and major source status.
2. Cross Referencing Information in the Application
    The permitting authority could allow the application to cross-
reference [[Page 20815]] relevant materials where they are current and 
clear with respect to information required in the permit application. 
Such might be the case where a source is seeking to update its title V 
permit based on the same information used to obtain a NSR permit or 
where a source is seeking renewal of its title V permit and no change 
in source operation or in the applicable requirements has occurred. Any 
cross-referenced documents would have to be included in the title V 
application that is sent to the permitting authority and that is made 
available as part of the public docket on the permit action.
3. Application Completeness Determinations
    As provided by proposed Sec. 71.5(c), a complete application would 
be one that the permitting authority has determined contains all the 
information needed to begin processing. The preamble to the proposed 
revisions to part 70 discusses two options for providing flexibility 
when determining application completeness. The first option addresses 
applications for sources with future-effective compliance dates, and 
the second option addresses the submittal of less detailed applications 
for sources that are scheduled to be permitted in the second and third 
years of the initial phase-in of a part 70 program. See 59 FR 44460 
(Aug. 29, 1994).
    Although the regulatory language concerning completeness 
determinations in the part 71 proposal is consistent with the 
regulatory language in the proposed part 70 revisions, EPA is not 
anticipating revising the proposed part 71 regulatory language to 
specifically implement either of the flexibility options discussed in 
the preamble to the proposed revisions to part 70. As EPA is not as 
familiar with sources as State and local permitting authorities, EPA is 
not in a position to adequately quality assure applications that apply 
such flexibility options. Thus, the use of such flexibility options in 
determining application completeness could increase the risk of 
inappropriate completeness determinations by EPA, as well as increase 
EPA's administrative burden. As a result of this concern, EPA is not 
proposing to provide for the flexibility options described in the 
preamble to the revisions to part 70, but solicited comment on this 
position in the part 71 proposal.

E. Section 71.6--Permit Content

    Many of the proposed provisions of Sec. 71.6 follow the provisions 
of 40 CFR 70.6, which were described and discussed at length in the 
proposed and final preambles to 40 CFR part 70, and in the recently 
proposed revisions to part 70. This notice incorporates the rationale 
provided in the part 70 notices by reference, as appropriate. This 
discussion focuses on those provisions that are affected by the legal 
challenges to the part 70 rule and those issues for which the approach 
proposed to be taken in part 71 differs from that taken in part 70 or 
the proposed revisions thereto.
    The provisions of proposed Sec. 71.6 have been formatted 
differently than those in 40 CFR 70.6 to consolidate the provisions 
related to compliance and to make the section easier to follow. The EPA 
solicits comment on the proposed formatting change.
1. Prompt Reporting of Deviations
    Like part 70, proposed part 71 would require that each permit 
contain provisions for prompt notification of deviations. In both 
cases, the definition of ``deviation'' is consistent with the 
definition of deviation in the proposed enhanced monitoring rule. 
However, part 71 proposes to define ``promptly'' for purposes of 
reporting deviations from federally-issued permits.
    Under this proposal and the proposed enhanced monitoring rule, 
deviation means any of the following conditions: Where emissions exceed 
an emission limitation or standard; where process or control device 
parameter values demonstrate that an emission limitation or standard 
has not been met; or where observations or data collected demonstrates 
noncompliance with an emission limitation or standard or any work 
practice or operating condition required by the permit. These 
conditions (except in cases where provisions that exempt such 
conditions from being federally enforceable violations have been 
promulgated or approved by the Administrator) would be deemed 
deviations from part 71 permit requirements and would require prompt 
reporting to the permitting authority.
    Part 71 sources would be required to promptly notify the permitting 
authority of any deviations. Under part 71, promptly has more than one 
meaning. This follows the model established in part 70. Where the 
underlying applicable requirement contains a definition of prompt or 
otherwise specifies a time frame for reporting deviations, that 
definition or time frame shall govern. Where the underlying applicable 
requirement fails to address the time frame for reporting deviations, 
prompt is defined differently depending on the type of pollutant 
emitted. For deviations concerning a HAP or toxic air pollutant that 
exceed a permit requirement for at least a one hour duration, prompt 
reporting would be defined as within 24 hours. Sources emitting other 
regulated air pollutants at levels that exceed permit requirements for 
at least two hours would be required to report the deviation within 48 
hours.
    The EPA recognizes that there are other notification requirements 
that have been established under other statutes that require sources to 
provide immediate notification of releases of specific chemicals in 
reportable quantities to agencies other than EPA and State permitting 
authorities. Generally these notifications apply to a potential 
emergency situation such as those requirements in CERCLA and SARA title 
III. In addition, pursuant to section 112(r), the Chemical Safety and 
Hazards Investigation Board has the authority to develop regulations 
for reporting accidental releases of section 112(r) substances. If a 
reporting regulation is established, it would become an applicable 
requirement on the source. The EPA stresses that sources must comply 
with such notice requirements even if they have provided notice to the 
permitting authority pursuant to proposed Sec. 71.6(f)(3). Failure to 
provide notices required by these other statutes and their implementing 
regulations may result in enforcement actions and penalties.
    Because the emissions from sources could cover a very large 
spectrum with a wide range of health effects, the permitting authority 
may also define in the permit the concentration and time duration of a 
deviation that must be reported promptly and the schedule for such 
reporting.
    Sources may notify the permitting authority of a deviation by 
telephone or facsimile within their required time schedule, and must 
then submit certified written notice within ten working days. All 
deviations would still have to be included in monitoring reports which 
would be required to be submitted at least every 6 months or more 
frequently if required by another applicable requirement (e.g., NSPS or 
enhanced monitoring).
2. General Permits
    Proposed Sec. 71.6(l) would implement section 504(d), which 
authorizes the permitting authority to issue a ``general permit 
covering numerous similar sources.'' The approach proposed for part 71 
would follow that of part 70 and the recently proposed revisions 
thereto.
    In response to the concerns raised in the legal challenges to the 
part 70 rule, EPA has reevaluated its approach to 
[[Page 20816]] providing for public participation for general permits.
    In the most recent part 70 proposal, the following items concerning 
general permits were proposed: (1) authorization to operate under a 
general permit is a final action subject to judicial review; and (2) 
the permitting authority is required to notify the public of sources 
who have been authorized to operate under a general permit. The latter 
action could be done as a monthly summary. Proposed Sec. 71.6 follows 
the approach of the recent part 70 proposal for general permits.
3. Emergency Defense
    As provided in proposed Sec. 71.6(o), part 71 permits could contain 
permit terms that provide that a source can establish an affirmative 
defense to an enforcement action based on noncompliance due to an 
emergency. The affirmative defense would not apply to permit terms 
other than technology-based emission limitations (e.g., MACT standards) 
and would not apply unless the source provides appropriate 
documentation as specified in proposed Sec. 71.6(o)(3). The emergency 
defense would be independent of any emergency or upset provision 
contained in an applicable requirement.
    Although part 71 permits could contain provisions for an emergency 
defense, EPA notes that sources that produce, process, handle or store 
a listed substance under section 112(r) or any other extremely 
hazardous substance nonetheless have a general duty in the same manner 
and to the same extent as section 654, title 29 of the United States 
Code, to identify hazards assessment techniques, to design and maintain 
a safe facility, and to minimize the consequences of accidental 
releases.
    The EPA is reevaluating the provisions in parts 70 and 71 relating 
to the emergency defense in light of concerns identified in legal 
challenges to the part 70 rule. The EPA may propose revisions to the 
part 70 and part 71 sections providing for the emergency defense before 
EPA would include such defense in any part 71 permits. In the interim, 
to ensure consistency with currently promulgated part 70, EPA would 
include in part 71 provisions allowing permit terms to establish an 
emergency defense.
4. Operational Flexibility
    Section 502(b)(10) of the Act requires that the minimum elements of 
an approvable permit program include provisions to allow changes within 
a permitted facility without requiring a permit revision. In the 
current part 70 rule, EPA included three different methods for 
implementing this mandate. However, in response to concerns raised by 
petitioners and State permitting authorities charged with implementing 
part 70, EPA recently proposed to revise part 70 to eliminate one of 
those methods and clarify the operation of the others. Today's part 71 
proposal adopts the same approach to operational flexibility as 
discussed in the proposed revision to part 70. The rationale for EPA's 
position on operational flexibility is set out in the proposed 
revisions to part 70 (59 FR 44460 (Aug. 29, 1994)), which today's 
notice incorporates by reference.
5. Referencing of Requirements
    Petitioners in the part 70 litigation have asked EPA for 
clarification on the subject of data that may be referenced but not 
included in the permit.
    In the recently proposed revisions to part 70, EPA has indicated 
that some referencing might be appropriate, and has requested comment 
on whether referencing should be allowed for: (1) test methods, (2) 
definitions, (3) startup, shutdown, or malfunction requirements or 
plans, and (4) detailed emission calculation protocols. The EPA 
solicits comments on referencing for part 71 permits.

F. Section 71.7--Permit Review, Issuance, Renewal, Reopenings, and 
Revisions

    This section of the preamble describes EPA's proposed regulations 
governing permit issuance, renewal, reopening, and revision procedures 
under part 71. Generally, under a part 71 program such procedures would 
follow the procedures in the currently promulgated part 70 rule, as 
recently proposed to be revised. See 40 CFR 70.7 and 59 FR 44460 (Aug. 
29, 1994). To the extent part 71 would follow the procedures in 
existing part 70 and the proposed revisions thereto, this notice 
incorporates the rationale for those procedures by reference. Where 
possible, EPA believes it is appropriate to model part 71 procedures on 
those required by part 70, in order to promote national consistency 
between the title V permit programs that will be administered 
throughout the country. National consistency will ensure that sources 
are not faced with substantially different programs when EPA, as 
opposed to State agencies, is the permitting authority. Moreover, as 
most part 71 programs are likely to be of limited duration, consistency 
with part 70 will enable smooth transition between Federal and State 
programs, encourage States to take delegation of administration of part 
71 programs, help States that have been unable to obtain part 70 
approval to phase into the title V program, promote uniformity in 
public and affected State participation, and provide a level playing 
field for sources.
    In certain respects, the procedures under proposed part 71 would 
vary from the procedures in part 70. This is usually due to the fact 
that EPA, as a Federal permitting authority, will not be implementing 
State air programs in general when it assumes title V responsibilities. 
Consequently, certain opportunities under part 70, such as new source 
review merged with title V permit revision procedures, would not be 
available where EPA is the permitting authority. However, where a State 
takes delegation of the administration of a part 71 program, some of 
these opportunities would be available. These variations are discussed 
in the relevant sections of the discussion below. In other cases, where 
part 70 and the proposed revisions thereto provide States with 
flexibility to decide among alternative approaches or define specific 
elements of permit program procedures in developing their State 
programs, part 71 would decide these issues in the regulation itself, 
rather than rely upon further program development. Moreover, in today's 
notice EPA proposes detailed procedures for permitting actions, similar 
to those found at 40 CFR part 124 governing other permit programs 
administered by EPA.
1. Permit Issuance and Renewal
    Part 71 would generally follow the currently promulgated part 70, 
as proposed to be revised in the August 29, 1994, Federal Register 
notice, in establishing procedures for permit issuance and renewal. 
These procedures are set forth in proposed Sec. 71.7(a)-(c) and are 
discussed in greater detail in section 3-F-1 of the Supplementary 
Information Document.
    In certain respects, part 71 would differ from part 70 and the 
proposed revisions thereto. For example, part 71 permitting authorities 
would be required to provide EPA with statements describing the legal 
and factual basis for draft permit terms only where the part 71 program 
has been delegated to a State or Tribal agency for administration. 
Also, only in cases where EPA has delegated part 71 administration to a 
State or Tribal agency would EPA would reserve the right to terminate 
or revoke and reissue a permit when the delegate permitting authority 
is not taking appropriate action to expeditiously process a permit 
renewal application. [[Page 20817]] 
2. Permit Revisions
    Proposed Secs. 71.7(d)-(h) would govern how permits are revised 
under part 71 programs. These procedures would generally follow the 4-
track system contained in the recently proposed revisions to part 70. 
However, certain aspects of the 4-track system would not be available 
unless EPA had delegated administration of a part 71 program to a State 
or eligible Tribal agency. Moreover, where the proposed revisions to 
part 70 would leave it to State discretion to decide certain issues on 
a program-by-program basis, part 71 would contain specific provisions. 
Where the permit revision procedures under part 71 would differ from 
those under proposed part 70, the rationale for those differences is 
provided in detail. Where the procedures under part 71 would be the 
same as those under the proposed part 70 4-track system, this notice 
incorporates by reference the rationale for those provisions contained 
in the notice for the proposed revisions to part 70. See 59 FR 44460 
(Aug. 29, 1994). The part 71 permit revision procedures are discussed 
in greater detail in section 3-F-2 of the Supplementary Information 
Document.
    The EPA wishes to stress that in first describing this permit 
revision structure in the proposed revisions to part 70, the Agency 
solicited comments on ways to simplify what is admittedly a complex 
system. In light of the extensive comments received concerning the 
complexity of the proposal, EPA will publish a supplemental proposal 
covering part 70 permit revision procedures that differs from the 
August 29, 1994 proposal. The supplemental proposal is expected to be 
published within a few months of the publication of today's part 71 
proposal and has not been developed in time to be incorporated into 
today's proposal. After the new part 70 procedures are proposed, EPA 
will most likely need to publish a supplemental proposal for part 71 
pertaining to permit revision procedures. If so, EPA would finalize 
other portions of the rule first in order to be able to administer part 
71 programs by November 15, 1995. The EPA expects to promulgate the 
part 70 permit revisions procedure in time to adjust corresponding 
sections of proposed part 71, as appropriate, before EPA would receive 
any applications for permit revisions under a part 71 program.
    a. Administrative Amendments. The provisions governing 
administrative amendments to part 71 permits would be located at 
proposed Sec. 71.7(e). Today's proposal would follow existing part 70 
in allowing changes that are generally clerical in nature to be made 
pursuant to administrative amendment procedures. Also, like the 
proposed revisions to part 70, part 71 would allow increases in the 
frequency of required testing, monitoring, recordkeeping and reporting 
to be incorporated through the administrative amendment process. While 
part 70 provides a subsequent opportunity for identifying other changes 
similar to those just described for processing as administrative 
amendments in the program approval stage, part 71 would not, simply 
because after promulgation of this rule there would be no further stage 
of part 71 program development.
    Where EPA has delegated administration of a part 71 program to a 
State or eligible Tribe, part 71 would follow the recent proposed 
revisions to part 70 by allowing changes that undergo ``merged'' part 
71/NSR or part 71/section 112(g) process to be incorporated into the 
part 71 permit as administrative amendments. For purposes of part 71, 
this opportunity to follow proposed part 70 would exist only where 
States or eligible Tribes take delegation of the part 71 program. When 
administering a part 71 program for a State, EPA would not also be 
implementing the State's preconstruction program, so EPA would not be 
able to upgrade the State's preconstruction program to part 71 process. 
While this eliminates a significant opportunity for streamlined permit 
revision where EPA is acting as the permitting authority, EPA believes 
that it is infeasible for EPA to merge preconstruction review and part 
71 review unless the same permitting authority processes both actions. 
Moreover, to the extent States take delegation of part 71 programs, 
this opportunity for flexibility will be present. The EPA solicits 
comment on the proposed limited availability of merged processing under 
part 71 and suggestions for ways in which this merged processing could 
be more feasibly provided.
    In delegation agreements, EPA and delegate agencies could agree 
that delegate agencies could conduct merged processing on a case-by-
case basis. That is, delegate agencies could be authorized to provide 
merged process for all or some of their preconstruction determinations 
or to allow sources to elect merged process for only individual 
changes. Delegate agencies that provided merged process on only a case-
specific basis would have to state when they are doing so in the 
initial notification of the permit action sent to EPA. A delegate 
agency that wished to provide for merged NSR changes would have to set 
out the eligibility criteria and process for merged NSR changes in its 
application for delegation to EPA. Depending on existing State 
statutory or regulatory provisions, no changes would be required to 
existing NSR programs.
    While under the proposed revisions to part 70 EPA would require 
States to submit eligibility criteria for merged processing in their 
part 70 programs that EPA would review in the context of program 
approval, EPA believes that the process in part 71 for applying for 
delegation and entering into delegation agreements provides an adequate 
forum for evaluating a delegate agency's ability to provide merged 
processing. Similarly, EPA believes that delegation agreements are 
adequate vehicles for establishing a delegate agency's authority to 
merge preconstruction and part 71 actions on a case-by-case basis. The 
delegation process requires the State to submit evidence of adequate 
statutory and regulatory authority to carry out part 71 
responsibilities, and EPA would publish delegation agreements in the 
Federal Register, giving notice of the delegate agency's authorization 
to provide for merged processing.
    Consistent with the proposed revisions to part 70, part 71 would 
allow administrative amendment procedures to be used to incorporate 
standards promulgated after permit issuance pursuant to section 112 of 
the Act.
    For all changes that qualify as administrative amendments, the part 
71 permitting authority would use specific procedures to incorporate 
those changes into the permit. Generally, these procedures would follow 
those contained in the August 29, 1994, proposed revisions to part 70, 
but would differ in certain respects. For example, the part 71 
permitting authority would be required to provide EPA with a copy of 
the effective permit addendum reflecting the change only where EPA has 
delegated a part 71 program to a State or eligible Tribe.
    b. De Minimis Permit Revisions. Following the proposed revisions to 
part 70, EPA is proposing at Sec. 71.7(f) a de minimis permit revision 
track in part 71 for changes that do not undergo merged program 
administrative amendment procedures but that have only a small 
emissions impact. Under this track, a source would be able to operate 
the change as early as the day it submits its permit revision 
application. Public and affected State review of the change would then 
follow. See the more detailed discussion in section 3-F-2-b of the 
Supplementary Information Document, as well as the Agency's preamble 
for the proposed revisions to [[Page 20818]] part 70 (59 FR 44460, Aug. 
29, 1994) regarding the types of changes that would be eligible for 
this process, the details of the process itself, and the rationale for 
the creation of this revision track.
    In certain respects, the de minimis track in part 71 would differ 
from that in proposed part 70. For example, a person who was 
unsuccessful in persuading the part 71 permitting authority to 
disapprove a source's requested de minimis change could not petition 
EPA to object to the permit. This is because both when EPA is the 
permitting authority and when EPA has delegated that responsibility, 
citizens will already have the opportunity to directly appeal the final 
de minimis permit revision to the Environmental Appeals Board. Thus, 
requiring an intermediate step of requesting EPA to object to its own 
permitting action would both be redundant and delay citizen access to 
administrative, and ultimately judicial, review of the change. The 
Agency solicits comment on this approach. While the proposed revisions 
to part 70 would leave States discretion in developing their part 70 
programs in determining whether the source, versus the State permitting 
authority, would have the responsibility to provide public notice of de 
minimis changes, under part 71, sources would have that duty. This 
specificity is due to the fact that EPA, unlike States, will not be 
conducting further program development for part 71 programs beyond 
promulgating part 71, so it is necessary for EPA to establish in this 
rule whether the public notification duty will fall on sources or the 
permitting authority. The EPA proposes to place the public notice 
responsibility on sources because the Agency believes that sources will 
be in a better position to provide timely notice of their de minimis 
changes than EPA regional offices would be and will have more ready 
access to area newspapers for providing such notice. Consequently, 
requiring sources to provide notice should ensure that de minimis 
changes are expeditiously processed. Moreover, EPA believes that under 
the proposed revisions to part 70, revised State programs could 
commonly require sources to provide such notice, and consistency in 
implementation of de minimis permit revision procedures will aid 
program transition when States obtain part 70 approval or when EPA 
assumes permitting responsibilities.
    As under the proposed revisions to part 70, the scope of de minimis 
changes would be defined in two ways. Any change at a small emissions 
unit (``unit-based'' de minimis) would qualify, as would a small change 
at a large unit (``increment-based'' de minimis), provided certain 
conditions designed to ensure the enforceability of the resulting 
permit limit were met. Unlike the proposed revisions to part 70, for 
part 71 EPA is not proposing that permitting authorities, whether they 
are EPA or delegate States or eligible Tribes, could establish 
alternative de minimis emissions thresholds based on a demonstration 
submitted subsequent to final promulgation of part 71. This is because, 
again, after promulgation of part 71, EPA will not be further 
developing part 71 programs, so there will not be an opportunity to 
consider alternative de minimis thresholds. Moreover, EPA does not 
believe that EPA delegation of part 71 administration to States or 
eligible Tribes provides an adequate forum for evaluating alternative 
thresholds developed by States or eligible Tribes, since there will be 
no formal approval action in those delegations and the public will not 
have an opportunity to comment upon them before they are effective.
    Procedurally, part 71 would also provide more specificity than 
would the proposed revisions to part 70. For example, the source could 
operate the requested de minimis change 7 days after the permitting 
authority received the application or, with the permitting authority's 
permission, as early as the day its application is submitted. The 
proposed revisions to part 70 provide that States in developing their 
part 70 programs would have discretion to allow changes to be made 7 
days following receipt of the application, and such authorization would 
be included in their program submittals for EPA approval; as discussed 
above, since promulgation of part 71 will represent the final stage of 
part 71 program development, proposed part 71 specifies that sources 
could make de minimis implement changes after 7 days.
    Also, under part 71, sources would be required to provide public 
notice of de minimis changes on a monthly, batched basis, publishing 
one notice listing all changes at the source for which applications for 
de minimis permit revisions had been sent to the permitting authority 
in the preceding month. The EPA solicits comment on this approach, 
particularly regarding the extent to which States intend to impose the 
public notification duty on sources under the proposed revisions to 
part 70. While the proposed revisions to part 70 specified neither who 
has the responsibility for providing public notice nor the manner in 
which public notice should be given, part 71 would be specific on these 
points, for the reasons discussed above. The EPA solicits comment, 
however, on the method or methods sources could use to provide such 
notice. For example, sources could be required to publish notice of de 
minimis changes in a newspaper of general circulation within the area 
where the source is located or in State or local governmental 
publications, to send actual notice to interested persons on a list 
developed by the source or the permitting authority, or both. At 
minimum, the final rule will provide a mechanism to ensure that public 
notice reaches all interested citizens.
    c. Minor Permit Revisions. Under today's proposal, most changes 
ineligible for administrative amendment or de minimis permit revision 
procedures would be eligible for the minor permit revision process. 
Taking the current part 70 rule's minor permit modification process as 
a starting point and following the proposed revisions to part 70, 
proposed part 71 would add expedited procedures for providing public 
notice and a 21-day comment period, allow the source to operate the 
requested change at the end of the 21-day comment period when no 
objections are received, and provide for permitting authority final 
action to be taken on applications within 60 days of their receipt. The 
description of and the rationale for EPA's proposed minor permit 
revision process for part 70 is contained in the preamble to the 
proposed revisions to part 70 (see 59 FR 44460, Aug. 29, 1994). To the 
extent applicable to part 71, EPA incorporates that rationale for this 
notice. However, where elements of the minor permit revision track 
differ in proposed part 71 from those in part 70, this notice describes 
those differences. A more detailed discussion of the part 71 minor 
permit revision process is contained in section 3-F-2-c of the 
Supplementary Information Document.
    For part 71 minor permit revisions, as for de minimis changes and 
merged program administrative amendments, notice to EPA, and EPA's 45-
day review period and opportunity to veto would occur only where EPA 
had delegated its role as the permitting authority to a State or 
eligible Tribe. While this is a departure from the proposed revisions 
to part 70, as discussed previously, EPA does not believe there is any 
utility, when EPA is the permitting authority, in requiring EPA review 
of EPA permitting action, since sources, affected States and public 
citizens that object to EPA permitting actions will be able to directly 
appeal those decisions to the Environmental Appeals Board. 
[[Page 20819]] Consequently, providing for an additional step of EPA 
review and opportunity to object would unnecessarily slow down this 
expedited revision track and would also delay access of interested 
parties to administrative and judicial review.
    Moreover, in cases of objections to minor permit modifications 
filed by affected States, only where EPA had delegated part 71 
administration to a State or eligible Tribe would the part 71 
permitting authority have to forward to EPA a written response to any 
of these objections that were not accepted.
    Another difference under the part 71 program would be that if the 
permitting authority failed to act on a public objection, the commenter 
could file suit in Federal court, rather than State court, to force the 
permitting authority to take action on the written comment. In 
addition, commenters would be able to bring suit in Federal court to 
seek an injunction against the source implementing or continuing to 
implement requested changes before they are approved. Injunctive relief 
would be available in accordance with applicable standards for 
obtaining such relief under Federal law.
    Also, only where EPA had delegated a part 71 program to a State or 
eligible Tribe, would the part 71 permitting authority be required to 
wait until the date after EPA's 45-day review period had expired, 
provided EPA had not objected, before issuing the final minor permit 
revision. The delegate agency would be required to take final action by 
day 60, or 15 days after the close of EPA's review period, whichever is 
later. In addition, under part 71 programs, commenters may not petition 
EPA to object to minor permit revisions for the reasons discussed above 
with respect to de minimis permit revisions.
    d. Significant Permit Revisions. Following the proposed revisions 
to part 70, under proposed part 71 the significant permit revision 
process would essentially follow that of the significant permit 
modification track in existing part 70. See the description of this 
process in the Agency's proposed revisions to part 70 (59 FR 44460, 
Aug. 29, 1994) for the rationale for this approach, which EPA 
incorporates by reference for purposes of part 71. See also the more 
detailed description of the part 71 significant permit revision process 
contained in section 3-F-2d of the Supplementary Information Document.
    Proposed part 71 would require the permitting authority to take 
final action on applications for significant permit revisions within 18 
months of receipt of the application. However, because prompt action on 
permit revisions is of critical importance to industry, the EPA intends 
to complete such revisions within 12 months and expects that only the 
most complex revisions would require more than a year to complete.
    e. Alternative Option for Monitoring Changes. Following the 
proposed revisions to part 70, EPA also proposes as an option in part 
71 alternative provisions governing changes involving monitoring 
requirements. While this option essentially adheres to the 4-track 
system discussed above, certain provisions of the system would need to 
be modified to incorporate the alternative option for monitoring 
changes. The rationale for this alternative option is discussed in 
detail in the preamble to the proposed revisions to part 70 (see 59 FR 
44460, Aug. 29, 1994), and this notice incorporates that rationale by 
reference, to the extent it is applicable to part 71. As appropriate, 
EPA intends to match in the final part 71 rule the final part 70 
provisions regarding this option. For a more detailed discussion of 
this option under part 71, see section 3-F-2-e of the Supplementary 
Information Document.
    Under part 71, the source, rather than the permitting authority, 
would have the responsibility to provide monthly batch public notice of 
monitoring changes processed under this option's de minimis permit 
revision track. Moreover, for monitoring changes processed under this 
option's significant permit revision track, part 71 permitting 
authorities would be required to send demonstrations and their 
evaluations to EPA only where EPA has delegated part 71 program 
administration. Again, EPA believes that expeditious process of de 
minimis permit revisions is better served by sources providing notice, 
and that the non-permitting authority EPA review and veto role adds 
value to the permitting process only where there is a separate entity 
such as a delegated State functioning as the part 71 permitting 
authority.
3. Incorporation of New Standards
    The process by which EPA proposes to incorporate into permits new 
MACT standards promulgated under section 112 would follow that 
contained and discussed in detail in the proposed revisions to part 70 
(see 59 FR 44460, Aug. 29, 1994). This notice incorporates by reference 
the rationale for this process contained in the preamble to the 
proposed revisions to part 70. To the extent appropriate, EPA intends 
the final part 71 rule to be consistent with the part 70 rule as it is 
finally promulgated. For a more detailed discussion of this process for 
purposes of part 71, see section 3-F-3 of the Supplementary Information 
Document.
    Note that under a delegated part 71 program, if EPA receives the 
initial notification because the MACT standard has not yet been 
delegated to the State, local or Tribal agency, EPA will send this 
notice to the delegate part 71 permitting authority, and upon receipt 
of this notice the permitting authority could begin processing the 
administrative amendment. Also, under delegated part 71 programs, where 
the NSR programs have been enhanced to meet part 71 requirements, minor 
and major NSR actions would be acceptable for addressing and 
establishing part 71 permit conditions needed to assure compliance with 
MACT standards. Thus, the merged preconstruction review process 
applying to NSR permits could also be used to revise the part 71 permit 
to incorporate the MACT requirements applicable to the source. If the 
NSR action were not merged (as would be the case if EPA had not 
delegated part 71 administration to a State or eligible Tribe), the 
part 71 revision would be eligible under the minor permit revision 
track, or, if it met the criteria, the de minimis permit revision 
track.
4. Permit Reopenings
    Under proposed Sec. 71.7(i), part 71 would follow the currently 
promulgated part 70 in providing when and how permits would be 
reopened. For a more detailed discussion of the part 71 permit 
reopening procedures, see section 3-F-4 of the Supplementary 
Information Document. Where EPA has delegated a part 71 program to a 
State or eligible Tribe, special provisions for EPA notification to the 
delegate agency that cause exists to reopen would apply. These 
procedures follow those in existing part 70 for notification to 
approved part 70 permitting authorities. Briefly, if EPA finds that 
cause exists to reopen a permit, it would notify the delegate agency 
and the source. The delegate agency would have 90 days after receipt of 
this notice to forward to EPA a proposed determination of termination, 
revision, or revocation and reissuance of the permit. The EPA could 
extend the 90-day period for an additional 90 days if a new application 
or additional information is necessary. The EPA could then review the 
proposed determination for 90 days. If the delegate agency fails to 
submit a determination or if EPA objects to the determination, EPA may 
terminate, revise, or revoke and reissue the permit after providing the 
source at least 30 days written notice and an opportunity 
[[Page 20820]] for comment and a hearing on EPA's proposed action.

G. Section 71.8--Affected State Review

    Following the proposed revisions to part 70, proposed Sec. 71.8 
would implement section 505(a)(2) of the Act and require that the 
permitting authority provide notice to all affected States (as defined 
in proposed Sec. 71.2) of each draft permit and addenda to permits that 
incorporate de minimis permit revisions. Under the proposed procedures 
for minor permit revisions, sources, rather than permitting 
authorities, would have the responsibility to provide notice to 
affected States for such changes. Affected States are those States 
whose air quality may be affected, and that are contiguous to, the 
State in which a part 71 permit, permit revision, or permit renewal is 
being proposed, or those within 50 miles of the source. Tribal areas or 
areas under the jurisdiction of a local air pollution control area may 
be considered affected States in some cases.
    Affected States that receive notice pursuant to proposed Sec. 71.8 
could submit written recommendations and comments to the permitting 
authority. If the permitting authority refuses to accept the 
recommendations, the reasons for the refusal would have to be provided 
in writing to the affected State(s) that provided the recommendations 
or comments during the public or affected State review period.

H. Section 71.9--Permit Fees

1. Authority to Impose Fees
    The EPA believes that title V provides EPA the authority to charge 
sources fees whenever EPA is required to administer a part 71 program. 
Section 502(b)(3)(C)(i) of the Act provides that if EPA determines that 
the fee provisions of a State's part 70 program do not meet the 
requirements of title V, or if EPA determines that a permitting 
authority is not adequately administering or enforcing its approved fee 
program, EPA may, in addition to taking any other action authorized 
under title V, collect reasonable fees from the sources that should be 
paying adequate fees pursuant to an approved part 70 fee program. Thus, 
EPA has the discretion to charge fees whenever a State fails to 
establish an approvable fee program or fails to implement its approved 
fee program, even if there are no other deficiencies in the State's 
operating permits program. Section 502(b)(3)(C)(i) also provides that 
fees charged by EPA shall be designed solely to cover EPA's costs of 
administering the provisions of the permits program promulgated by EPA.
2. Fee Calculation and Assessment
    The fee schedule proposed in Sec. 71.9 would establish a dollar per 
ton charge on actual emissions of each regulated pollutant (for fee 
calculation) that is emitted from a source.
    Under the fee schedule in this proposal, the date of the initial 
fee submittal would be contingent upon several factors. If EPA 
withdraws approval of a part 70 program, initial part 71 fees would be 
due in accordance with a schedule based upon a source's primary SIC 
Code, as provided in proposed Sec. 71.9(f)(1).
    If EPA implements a part 71 program in an area that did not have a 
part 70 program in place, initial fee calculation work sheets and fees 
would be due at the same time the initial permit application is due, in 
accordance with the requirements of proposed Sec. 71.5(b)(1).
    Regardless of whether a part 70 program preceded a part 71 program, 
sources that become subject to the part 71 program after the part 71 
program's effective date would be required to submit initial fee 
calculation work sheets and fees at the same time the initial permit 
application would be due, in accordance with the requirements of 
proposed Sec. 71.5(b)(1).
    Sources would be allowed to pay their initial annual fee in two 
installments. The first payment equalling one-third of the annual fee 
would have to be submitted along with the initial fee calculation 
worksheet. The balance would be due four months later, but in no event 
later than a year after the program's effective date.
    As provided in proposed Sec. 71.9(g), for sources that receive a 
part 71 permit as a result of an EPA veto of the State's proposed part 
70 permit (as provided in proposed Sec. 71.4(e)), the initial fee 
calculation work sheet and fees would be due 3 months after the date 
the part 71 permit is issued. Delaying the source's fee payment in this 
manner would provide the State an opportunity to issue a permit that 
satisfies EPA's objection, thereby relieving sources of the burden of 
paying both State and Federal permit fees. However, such sources would 
not be permitted to pay fees in installments because their obligation 
to pay fees arises after EPA has completed the permit issuance process.
    For sources that commenced operation during the calendar year 
preceding the date on which a source's initial application is due, the 
initial fee calculation would be based on an estimate of the current 
calendar year's actual emissions. This estimated fee would be adjusted 
in the first annual emission report. In addition, sources that would be 
required to submit initial fee calculation work sheets and fees between 
January 1 and March 31, as required by either proposed Sec. 71.9(f)(1) 
or Sec. 71.9(g), would have the option of basing their initial fee 
calculation on an estimate of the preceding calendar year's actual 
emissions. This provision would provide sources with a means for 
meeting the initial fee submittal requirements if their initial fee 
submittal date does not provide for sufficient time to calculate the 
previous calendar year's actual emissions. This estimation would also 
have to be reconciled in the first annual emission report.
    For purposes of subsequent annual emissions reporting and fee 
assessments, the date (month and day) on which the initial part 71 fee 
calculation work sheet and fees were due would be considered the 
``anniversary date'' for that source. Each source would be required to 
submit an annual report of its actual emissions for the preceding 
calendar year by its anniversary date. However, to allow sources with 
anniversary dates between January 1 and March 31 the time needed to 
analyze the preceding calendar year's emissions data, the anniversary 
date for these sources would be April 1. The annual report would have 
to include a fee calculation work sheet and full payment.
    As discussed above, sources that commenced operation during the 
preceding calendar year would base their initial fee calculation on an 
estimate of the current calendar year's actual emissions. When the 
permitting authority receives the first annual emissions report, the 
permitting authority would compare the estimate to the emissions report 
and would adjust the initial fee to reflect the annual emissions listed 
in the report. If an additional fee is required, payment would be due 
with the submittal of the annual emissions report. If the source has 
overpaid, the permitting authority would credit the source's account. 
Regardless of this adjustment procedure, the source would be required 
to pay its current emissions fee based on the actual emissions listed 
in the first annual emissions report.
    Sources subject to proposed Sec. 71.9(f)(1) or Sec. 71.9(g) that 
have initial application and fee calculation work sheets due between 
January 1 and March 31 could opt to base their initial fee on an 
estimate of the past year's [[Page 20821]] actual emissions. The first 
annual emissions report for such sources would have to reconcile the 
emissions fee from the initial fee calculation. In addition to 
calculating the current emissions fee, the report would be required to 
include actual emissions data from the estimated year, and the source's 
account would have to be revised accordingly.
    Section 502(b)(3)(C)(ii) requires that sources that fail to pay 
fees in a timely fashion shall be assessed interest at a rate equal to 
the sum of the Federal short-term rate determined by the Secretary of 
the Treasury in accordance with section 6621(a)(2) of the Internal 
Revenue Code of 1986, plus 3 percentage points and shall pay a penalty 
charge of 50 percent of the fee amount. Proposed Sec. 71.9(l) would 
implement section 502(b)(3)(C)(ii) by providing that the penalty charge 
shall be due if the fee is not paid within 30 days of the payment due 
date or if sources that compute fees based on estimated annual 
emissions substantially underestimate these emissions.
    Fee payments would be required to be in United States currency in 
the form of a money order, bank draft, certified check, corporate 
check, or electronic funds transfer payable to the order of the U. S. 
Environmental Protection Agency. The EPA intends to develop additional 
guidance regarding remittance procedures as the Federal operating 
permits program is implemented.
3. Principles for Developing Fee Structure
    The following principles were used to develop the proposed fee 
requirements:
    a. Fees Based on Average Annual Costs. By means of the fee 
structure proposed in this rule, EPA intends to recover both direct and 
indirect costs for the various activities conducted to administer part 
71 programs. Direct costs would include personnel benefits and 
salaries, travel, equipment costs, and contractor expenses. Indirect 
costs would be those resources, outside of direct program costs, used 
to manage, oversee and provide counsel to program offices. These would 
include costs such as those incurred by EPA's management, 
administrative, and policy staff. Indirect costs would also include 
overhead costs, such as utilities and rents.
    The methodology proposed to be used for setting fees is to estimate 
the cost of implementing the part 71 program nationwide and to divide 
that cost by the estimated emissions that would be subject to the fee. 
The result is a fee expressed in dollars per ton/yr of pollutants 
emitted. A detailed discussion of the assumptions and calculations 
involved in determining fees is found in ``Federal Operating Permits 
Program Costs and Fee Analysis'' (Fee Analysis), which is contained in 
the docket for this rulemaking.
    The cost estimates presented in the Fee Analysis are based on 
operating a part 71 program for two years. The EPA believes this is a 
reasonable average program duration, given the expected transitory 
nature of the program.
    For purposes of the cost analysis, the hourly personnel costs were 
assumed to be the same for EPA and for delegate agencies. Therefore, 
the total personnel costs for an EPA administered program and one which 
is delegated in whole or in part would be identical except for the cost 
of additional EPA oversight (which would be covered by a $3 per ton/yr 
surcharge discussed below).
    Because part 71 programs will generally be transitional programs, 
EPA may in some cases decide to staff the program primarily through 
contractor assistance. The emissions fee for a particular part 71 
program would vary depending on the extent to which EPA relies on 
contractor support and the cost of contractor assistance. If the 
program is administered by EPA without contractor assistance, the 
proposed fee would be $45 per ton/yr. If the program were staffed 
through contractor assistance (except for those functions for which the 
use of contractors is not appropriate such as final permit issuance 
determinations), EPA would establish a fee based on the contractor 
costs for a particular program.
    As provided in proposed Sec. 71.9(c)(3), the fee for a contractor 
assisted program is the sum of the permitting authority's costs 
associated with activities that it undertakes, the cost of paying a 
contractor to undertake other activities, and a surcharge that covers 
EPA's oversight costs. The formula for determining the cost of 
contractor assistance is as follows:

C=[B+T+N] divided by 12,300,000

Where B represents the base cost (contractor costs), where T represents 
travel costs, and where N represents non-personnel data management and 
tracking costs.
    B, T and N, when summed, are divided by the total tonnage of 
national emissions that would be subject to fees (12.3 million tons) to 
convert the cost into a per ton fee rate.
    The Fee Analysis discusses the methodology used in computing the 
base cost of the part 71 program, travel costs and non-personnel data 
management and tracking costs. Travel costs and non-personnel data 
management and tracking costs would be the costs ($14,488,000 and 
$13,400,000 respectively) indicated in Table A-3 of that document.
    As indicated above, the base cost would vary depending on the 
hourly rate paid for contractor assistance. Table A-3 presents the base 
cost for a program in which contractor assistance (costing $62 per 
hour) was used to the maximum extent possible. This $62 figure reflects 
the average hourly cost of several large contracts awarded by EPA for 
projects relating to air quality control. Using that hourly rate, the 
resulting per ton fee would be $77. The base cost was computed by 
summing the costs of contractor assistance for years 1 and 2 for the 
activities listed in Table A-1 of the Fee Analysis (except those 
activities which EPA should undertake, i.e., presiding over hearings, 
transition planning, guidance, contract management, and training) and 
then computing an annualized cost. To determine the fee for a 
particular part 71 program, EPA would substitute a different hourly 
rate (based on the actual rate charged by the contractor) into the 
computation.
    Each time a part 71 program is implemented, EPA would determine the 
percentage of personnel time allocated to contractors by considering 
who could best perform each type of permitting activity (e.g., 
technical review and processing of permit applications and compliance 
plans, preparation for public hearings, compliance inspections). This 
flexibility would allow EPA to develop a staffing pattern that meets 
the unique needs of the part 71 program being administered. By using 
the formula specified in proposed Sec. 71.9(c)(3), EPA would arrive at 
the basic emissions fee. If the program is delegated or staffed largely 
by contractors, there would be additional costs due to the oversight 
that EPA must provide to the program. These additional costs of EPA's 
review of permit applications, compliance plans, draft permits, permit 
revisions and reopenings would increase the emissions fee by $3 per 
ton/yr.
    The EPA currently uses contractors for permits related work 
pursuant to competitively bid contracts which compensate contractors on 
a level of effort basis, using set hourly fees. These contracts, which 
provide for a certain number of hours of services at a fixed hourly 
rate, were used in projecting the costs of using contractors to 
implement part 71 programs and could be used by EPA for part 71 
programs when contractor assistance is needed. It has been suggested 
that for part 71 programs [[Page 20822]] it may be more cost effective 
if contracts for part 71 programs were independently bid. Therefore, 
EPA solicits comments on whether fees for part 71 programs should be 
based on contractor costs established by a new competitive bid process. 
While not wanting to dismiss this alternative, the EPA is concerned 
about the costs involved with preparing the documentation required for 
the competitive bid process and that the length of time required to 
undertake this process (usually 12-18 months) would make this 
alternative impractical in light of the program's effective date. In 
particular, EPA solicits comments on whether this approach would result 
in cost savings.
    The EPA considered several other options for setting fees. For 
example, EPA considered the possibility of basing fees for each part 71 
program on the fee structure submitted by a State or local government 
as part of its part 70 submittal. This approach, however, has limited 
utility in that it is not appropriate where the submittal contains an 
inadequate fee program or where no submittal is made. Furthermore, the 
administrative burden (and the delay in program implementation) 
involved with completing individual rulemakings for each part 71 
program made this option infeasible.
    Given that it is not practical to craft a fee schedule that fits 
each State, and given that EPA is unable to foresee with certainty when 
and where it may be necessary to implement part 71 programs, EPA 
proposes to base its fees on the average cost of implementing a part 71 
program.
    The EPA considered whether the average cost of the part 71 program 
would be recovered by charging a fee of $25 per ton/yr (1989 baseline 
with CPI adjustments), which is the amount of fee revenue that EPA 
would presume is adequate for purposes of funding State operating 
permits programs under part 70. For fiscal year 1995, this fee would 
equal $30.18. However, EPA believes that there would be some 
differences in costs between the Federal program and State programs 
which made use of the presumptive fee inappropriate.
    Using the approach outlined above, EPA has developed a proposed fee 
structure that will reflect the cost of the Federal operating permits 
program, though not necessarily the cost of implementing the program in 
any particular State. The proposed fee is expected to be adequate for 
nearly all part 71 programs and should, on average, collect sufficient 
revenue to fund permitting under this part. However, if EPA determines 
that the fee structure provided in proposed Sec. 71.9(c)(1)-(4) does 
not adequately reflect the program costs for a particular area, such as 
a Tribal area, then EPA may by separate rulemaking establish a 
different fee for a part 71 program.
    b. Minimizing Administrative Burdens. Although EPA could design a 
fee system that imposes different fees based on such factors as source 
categories, the particular pollutants emitted, or the type of 
permitting action requested, EPA proposes a straight forward emissions-
based fee system. For sources, the fee computation would be simple. 
Similarly, EPA's administrative burden related to assessing fees and 
monitoring compliance with fee requirements would be minimized.
    c. Fees Calculated Based on Existing Information. The EPA would 
provide sources with fee calculation work sheets. Using these work 
sheets, sources would compute their actual emissions of the appropriate 
pollutants and multiply by the appropriate per ton/yr rate. Sources 
would submit fees within the first 12 months of the effective date of 
the program, and annually thereafter. Many sources are already subject 
to annual emissions reporting requirements. Thus, except for new 
sources, there would generally be no requirement that sources develop 
any information for the work sheets that would not already be required 
on the application form or as an emission reporting requirement.
    d. Fees Imposed in Advance of EPA's Rendering Services. Under the 
proposal, all part 71 sources would remit fees within 12 months of the 
effective date of the permit program, even if the source is not issued 
a part 71 permit within that time. Those fees will provide a stable 
source of revenue from which to fund the initial start-up costs of the 
program, the costs of issuing permits within the first year of the 
program, as well as cover ongoing activities such as inspections, 
reviewing monitoring reports, and other compliance and enforcement 
activities.
    This procedure would comply with Federal policy for user fees 
established in OMB Circular A-25 (July 8, 1993), which provides that 
fees are to be collected before services are administered or goods 
provided to ensure that fees are actually paid for the services 
provided, that the Treasury receives funds in a timely manner, and that 
additional administrative burdens and costs for collecting fees are 
avoided.
4. Revision of Fee Structure
    To reflect changes in operating costs, fees would be adjusted 
automatically every year (after 1997) by the same percentage as the 
percent change in the CPI. Also, the fee schedule would be revisited 
every two years as required by section 902(a)(8) of the Chief Financial 
Officer's Act of 1990. (31 U.S.C. 501 et seq.)

I. Section 71.10--Delegation of Part 71 Program

1. Delegation Process
    Section 301(a)(1) of the Act provides that the Administrator is 
authorized to prescribe such regulations as are necessary to carry out 
his or her functions under the Act. Pursuant to this authority, 
proposed Sec. 71.10 provides that a part 71 program may be delegated in 
whole or in part, with or without signature authority (i.e., the 
authority to issue permits) to any State or local agency or eligible 
Tribe that is found to have the requisite legal authority to administer 
such a program. For purposes of the rule, an eligible Indian Tribe 
would be a Tribe that EPA has determined meets the criteria for being 
treated in the same manner as a State, pursuant to regulations 
implementing section 301(d)(2) of the Act.
    The EPA recognizes that in some cases States could fail to receive 
part 70 program approval due to program flaws that are not related to 
the permitting authority's practicable ability to implement a title V 
program. For example, the submitted part 70 program may contain 
elements in it enabling legislation or its regulations that prevent EPA 
from granting program approval, even though EPA may be confident that 
the State permitting authority could adequately administer and enforce 
a title V program that meets the requirements of the Act. While title V 
requires EPA to promulgate Federal title V programs for States that 
fail to receive part 70 program approval, EPA believes that in 
situations where State permitting authorities appear capable of 
implementing programs that meet the requirements of title V, it would 
be consistent with the general policies of the Act to involve States in 
implementing required Federal permits programs, rather than exclude 
State permitting authorities.
    The Act has long provided that air pollution control is the primary 
responsibility of States and local governments. (See, e.g., section 
101(a)(3) of the Act, 42 U.S.C. 7401(a)(3).) Moreover, while title V 
requires States to submit permit programs for approval by EPA, the Act 
does not provide that program approval is the sole mechanism available 
for State air pollution control [[Page 20823]] agencies to become 
permitting authorities under title V. Section 501(4) of the Act defines 
``permitting authority'' to mean both the Administrator or the air 
pollution control agency ``authorized'' by the Administrator to carry 
out a permit program under title V. Section 302(b) of the Act defines 
``air pollution control agency'' to include State and local government 
agencies. The EPA believes the word ``authorized'' as used in section 
501(4) may reasonably be interpreted to apply not only to instances in 
which EPA approves a submitted part 70 program, but also to instances 
in which EPA determines that a State or local air pollution control 
agency demonstrates that it is capable of carrying out a title V permit 
program even where the State has not submitted a part 70 program that 
has received EPA approval.
    The EPA could exercise its discretion to delegate authority to 
administer some portion or all of a part 71 program where, for example, 
it makes sense to take advantage of existing expertise of the delegate 
agency or where it seems probable that the delegate agency's submitted 
part 70 program will be approved within a short time by EPA, provided 
in both cases that the delegate agency has the authority to administer 
the portion of the program that would be delegated.
    Any agency that seeks to obtain delegation of a part 71 program 
would be required to submit a formal request for delegation, in 
accordance with the provisions of proposed Sec. 71.10, and such other 
documentation as is necessary for review and consideration by the 
Administrator to make a determination that the agency or eligible Tribe 
has adequate legal authority and procedures to administer and enforce a 
part 71 program.
    The EPA would adopt a flexible approach in evaluating delegation 
requests. The EPA would not demand that each delegate agency administer 
a part 71 program in precisely the same way because each delegate 
agency would have to comply with its own procedures, administrative 
codes, regulations, and laws as well as the requirements of this part.
    The Governor or designee for a State, a local agency, or the Tribal 
governing body for an eligible Tribe, would be required to submit to 
EPA a written request for delegation of authority on behalf of the 
State or local agency or eligible Tribe pursuant to proposed 
Sec. 71.10. The request would have to include a legal opinion that 
certifies that the State or local agency or eligible Tribe has the 
requisite legal authority to implement and administer the program. The 
request would also have to identify the officers or agencies 
responsible for carrying out the State, local, or Tribal procedures, 
regulations, and laws.
    The EPA would respond in writing to each delegation request and 
shall state to what extent the request has been accepted or rejected. 
If the request is accepted in whole or in part, the Administrator would 
delegate to the Governor or designee, the local agency, or Tribal 
governing body, the authority to carry out the accepted portions of the 
delegation. If the request is rejected in whole or in part, the 
notification shall specify the reasons for such rejection.
    The terms and conditions of the delegation would be set forth in a 
``delegation of authority agreement'' that specifies the effective date 
for the agreement. The delegation of authority agreement would be 
published in the Federal Register by EPA and would identify the 
delegate State, local, or Tribal procedures to be used for implementing 
and administering the program by reference to the request and to any 
additional submission by the Governor or designee, or Tribal governing 
body supplementing or modifying the State, local or Tribal procedures.
2. Full and Partial Delegation
    Although EPA encourages delegate agencies to accept full delegation 
of all aspects of the administration of part 71 programs, there are 
situations where a delegate agency may be unable or unwilling to assume 
all responsibility for administering these programs. Where appropriate, 
EPA could choose to grant partial delegations as follows:
    (1) Delegation of authority may be granted for only a portion of 
the State or regulatory area;
    (2) Delegation of authority may be restricted to certain source 
categories or parts thereof; or
    (3) Authority may be delegated for selected parts of the procedural 
responsibility in implementing a part 71 program with EPA acting as a 
partner in completing the remaining actions (e.g., delegation of 
authority may be granted with regard to the administrative and/or 
technical portion of implementing the part 71 program, with EPA 
providing enforcement should such action become necessary);
    (4) Authority may be delegated for only the acid rain portion of a 
title V program, or for other parts of the title V program, not 
including the acid rain portion.
3. Procedural Requirements for Delegation
    The delegate agency would be required to provide notice to the 
Administrator of all applications for any permit, permit renewal, or 
permit revision, including any compliance plan, or any portion thereof 
that the Administrator determines to be necessary to review the 
application and permit effectively, each proposed permit, and each 
final permit as provided in proposed Sec. 71.10(d). The delegate agency 
would also have to provide notice of each draft permit to affected 
States on or before the time that the delegate agency provides this 
notice to the public under proposed Secs. 71.7 (e)(4), (h), or (i) or 
Sec. 71.11(d) and would be required to provide any affected State a 
copy of the addendum for a de minimis permit revision within 7 days of 
the date on which the addendum takes effect.
    Affected States that receive notice pursuant to proposed 
Sec. 71.8(a) could submit written recommendations and comments on the 
permit to the delegate agency. If the delegate agency refuses to accept 
the recommendations, the reasons for the refusal would have to be 
provided in writing to the State(s) providing the recommendations.
    The EPA could waive its own and affected States' review of permits 
for any category of sources, except major sources, by nationwide 
regulation for a category of sources. The EPA could also waive its own 
right to review, but maintain the requirement for a delegate agency to 
notify affected States. During Phase II of the acid rain program, the 
Agency does not intend to waive its own right to review permits for 
affected sources under the acid rain program.
    When a part 71 program has been delegated with signature authority 
in accordance with the provisions of this section, the Administrator 
could object, in writing, to a part 71 permit if the delegate agency 
fails to properly submit, process, or provide notice as would be 
required by this part or if the part 71 permit does not assure 
compliance with applicable requirements of the Act. If the delegate 
agency fails to revise the proposed permit in response to the 
objection, the Administrator could deny the permit or issue a permit in 
accordance with the part 71 program.
4. Delegation of Authority Agreement
    A delegation of authority agreement would specify the terms and 
conditions of the delegation and would be required to include, but not 
be limited to:
    (1) A provision that the delegation is made in accordance with 
proposed Sec. 71.10; [[Page 20824]] 
    (2) A provision that describes the source categories, geographic 
areas, and the administrative and enforcement activities governed by 
the delegation;
    (3) A provision that requires the delegate agency to comply with 
the public notice requirements of proposed Secs. 71.7 and 71.11;
    (4) A provision that requires the delegate agency to provide a 
copy, through the appropriate Regional Office, of each permit 
application, proposed permit, and final permit to the Administrator as 
required in proposed Sec. 71.10(d);
    (5) A provision that any permit issued by a delegate agency contain 
a statement identifying the permit as a title V, part 71 permit;
    (6) A provision that requires EPA's concurrence on any 
applicability determination or policy statement regarding title V or 
parts 70 or 71 not covered by determinations or guidance provided to 
the delegate agency;
    (7) A provision that requires immediate notification to be provided 
to EPA if the delegate agency is unable or unwilling to administer or 
enforce a provision of the delegated part 71 program with respect to 
any source; and
    (8) A provision that the delegate agency may not grant any waiver 
to a permit requirement or issue any order that violates an effective 
provision or requirement of part 71 or the Act.

J. Section 71.11--Administrative Record, Public Participation, and 
Administrative Review

    Section 71.11 of the proposal establishes procedures by which the 
part 71 permitting authority would act on permit applications, issue 
draft permits, provide opportunities for public comment, and issue 
final permits. The emphasis in proposed Secs. 71.11(a)-(j) is on a 
description of the notice and public participation procedures for 
initial permit issuance, permit renewals, permit reopenings, and 
significant permit revisions. The notice and public participation 
procedures for administrative amendments, de minimis permit revisions, 
and minor permit revisions are described in proposed Sec. 71.7.
    Proposed Secs. 71.11(k)-(m) describe the administrative record for 
permits, the procedure for appeal of permits, and the determination of 
the beginning and ending days for any scheduled time period. Unlike 
proposed Secs. 71.11(a)-(j), provisions in proposed Secs. 71.11(k)-(m) 
would apply to all permit actions, including administrative amendments, 
de minimis permit revisions, minor permit revisions and significant 
permit revisions.
    The EPA considered two alternative methods of establishing the 
public participation and administrative review procedural requirements. 
The first alternative would be to amend the existing procedures in 40 
CFR part 124, which establishes specific decision making procedures for 
RCRA, Underground Injection Control (UIC), PSD, and NPDES permits, so 
that the procedures would be compatible with the part 71 program. The 
EPA would then incorporate those provisions by reference into the part 
71 permit rule. The second alternative was to establish public 
participation and administrative appeal procedures as a separate 
section of this rule. This alternative has the advantage of allowing 
these procedures to focus specifically on the needs of the part 71 
program as well as appear in close proximity to the permit program 
requirements in the Code of Federal Regulations.
    Today's proposal follows the second alternative. The proposed 
public participation and administrative appeals procedures are set out 
at Sec. 71.11 and are based closely on selected provisions of part 124, 
subpart A. The EPA does not believe the choice of one format over the 
other will have a substantial impact on the implementation of this 
rule.
    Once a permit application is complete, including an application to 
revise an existing permit, the permitting authority would tentatively 
decide whether to prepare a draft permit. Such draft permits would 
contain permit conditions specified in proposed Sec. 71.6, public 
notice of the draft permit would be issued and the draft would be made 
available for comment. Administrative amendments of permits would not 
be subject to draft permit or public notice requirements. Public notice 
of de minimis permit revisions would be on a post hoc basis, and draft 
permits for minor permit revisions would be publicly noticed by the 
applicant source. All draft permits issued by the permitting authority 
would be accompanied by a statement that briefly describes the 
derivation of the conditions of the draft permit and the reasons for 
them.
    Proposed Sec. 71.11(d) would establish public notice and comment 
procedures for part 71 permit actions not addressed elsewhere in the 
proposal, including application denials, draft permit preparation, 
scheduling of public hearings, reopening of the public comment period, 
and granting of appeals. Where other provisions of this proposal 
establish permitting procedures for specific types of actions, such as 
in the provisions on administrative amendments, de minimis permit 
revisions, and minor permit revisions, those provisions would govern. 
Notice of draft permits under proposed Sec. 71.11(d) (including permit 
revisions) would provide at least 30 days for public comment, and 
notices of hearings would be issued at least 30 days before hearings 
are held. Notice would be provided by mail to interested persons, by 
publication, or by other reasonable means and would include information 
on the permittee, contact persons, and general procedures on submitting 
comments and requesting to speak at hearings. In addition, notices of 
hearings would provide information on dates, times, and places of 
hearings, as well as applicable rules and procedures. The permitting 
authority could hold hearings either upon the basis of requests or on 
its own initiative.
    Proposed Sec. 71.11(e) would establish requirements for 
consideration of comments on a draft permit. It would require that a 
request for a public hearing be in writing and include a statement of 
the nature of the issues proposed to be raised at the hearing. It would 
also stipulate that all comments be considered in making the final 
decision on the draft permit, and that a publicly available record be 
kept of commenters and issues raised.
    Proposed Sec. 71.11(f) on public hearings would require that a 
public hearing be held if there was a significant degree of interest in 
a draft permit. The permitting authority would designate a Presiding 
Officer who would be responsible for conducting the hearing. This 
proposed procedure would allow statements from any person, with 
reasonable limits on time allowed for oral statements. A tape recording 
or written transcript would be required to be made available to the 
public.
    Proposed Sec. 71.11(g) would require that all reasonably 
ascertainable issues and all reasonably ascertainable arguments be 
raised or submitted by the close of the public comment period. It would 
require that supporting materials be submitted in full, rather than 
incorporated by reference. In order to comply with this proposed 
requirement, the comment period could be longer than 30 days, at the 
discretion of the permitting authority.
    Proposed Sec. 71.11(h) would allow the permitting authority to 
reopen the public comment period if any person believed that a 
condition of the draft permit is inappropriate, or that the permitting 
authority's decision to deny an application, terminate a permit, or 
prepare a draft permit is inappropriate. If information submitted 
during the public comment period appeared to raise substantial new 
questions, the [[Page 20825]] permitting authority would have the 
flexibility to prepare a new draft permit, or prepare a revised 
statement of basis and reopen or extend the comment period.
    Proposed Sec. 71.11(i) would require the permitting authority to 
issue a final permit decision once the public comment period had 
closed. The final decision, which becomes effective immediately upon 
issuance of the decision or a later date specified in the decision, 
would be a decision to issue, deny, revise, revoke and reissue, renew, 
or terminate a permit.
    Proposed Sec. 71.11(j) would require the permitting authority to 
issue a response to comments. The response would specify what 
provisions, if any, of the draft permit were changed in the final 
permit decision, and why. It would also require a description and 
response to all significant comments, and require inclusion of any 
cited documents in the administrative record. If an affected State 
recommended changes to the draft permit that were not accepted by the 
permitting authority, proposed Sec. 71.11(j) would require written 
notification to the affected State.
    Final permit decisions would be based on the administrative record 
defined in proposed Sec. 71.11(k), including comments received, hearing 
transcripts, the response to comments, the final permit, the permit 
application, and the draft permit and its statement of basis.
    Proposed Sec. 71.11(l) grants a right of appeal of all final permit 
decisions, including those taken under provisions establishing 
procedures for administrative amendments, de minimis permit revisions, 
and minor permit revisions, and establishes procedures for such 
appeals. Within 30 days of a final permit decision, interested persons 
could petition the Environmental Appeals Board to review the final 
permit decision. Petitions for review would be required to include a 
statement of the reasons supporting review and could address only 
issues raised during the public comment period, unless it was 
impracticable to raise the relevant objections during such period or 
the grounds for objection arose after the period closed. An example of 
a situation in which it is impracticable to raise an objection during 
the comment period would be when a significant change is made from a 
draft to final permit without providing an opportunity for public 
comment. Moreover, while persons who participated in the comment or 
hearing processes could petition the Board to review any condition of 
the final permit decision, persons who failed to file comments or 
participate in hearings could petition the Board only with respect to 
changes from the draft to final permit decision. When a part 71 permit 
is appealed, it would nevertheless remain fully effective and 
enforceable against the permitted source.
    The EPA seeks comment on its method of establishing procedures for 
public participation and administrative review, and on the 
appropriateness of the specific procedures proposed. The EPA 
particularly seeks comment on the issues of the statement of basis 
accompanying draft permits, the proposed public notice and comment 
requirements, and appeals of permits.
    Pursuant to sections 114 and 503(e) of the Act, EPA, by this 
proposed rule solicits comments on the appropriateness of, and the 
means for, making available to the public information that a source 
would be required by this rule to collect. Such information might 
include, for example, the data resulting from use of required 
monitoring methods. Specifically, EPA is requesting comment on what 
types and amount of information required under this rule should be made 
available to the public, what limits, if any, to place on a requirement 
to make available such information, and appropriate methods for making 
such information publicly available (e.g., electronic reporting to a 
publicly accessible data base, direct access by the public to 
information held by sources, or reliance on EPA and/or delegated States 
to assist the public in obtaining the information). The EPA also 
solicits comment on appropriate language for a rule or policy guidance 
document to effectuate public availability of information required 
under this rule and solicits comments on whether a rule or a policy 
guidance document is more appropriate.
    Under both delegated and nondelegated part 71 programs, interested 
persons (including permitees) would be authorized to petition the 
Administrator to reopen an already issued permit for cause as provided 
in proposed Sec. 71.11(n). Petitions would be required to be in writing 
and to contain facts or reasons supporting the request. If the 
Administrator determined that cause exists to reopen the permit, he or 
she would revise, revoke and reissue, or terminate the permit 
consistent with the requirements and procedures in proposed Sec. 71.7.
    Under part 70, citizens can petition EPA to object to State issued 
permits and can appeal EPA's failure to object to a proposed permit. 
However, for both delegated and nondelegated part 71 programs, the EPA 
feels this type of petition process is unnecessary because the final 
permit can be appealed directly to the Environmental Appeals Board 
(EAB) and because citizens can use the petition process provided by 
proposed Sec. 71.11(n) in cases where the deadline for appeal to the 
EAB has passed. The EPA believes that this approach provides an 
adequate opportunity for EPA oversight of part 71 programs, and that 
consequently there is little value in providing the opportunity for 
citizens to petition the Administrator to object to a proposed permit, 
which could result in two separate and simultaneous routes to appeal 
EPA's permitting actions. Moreover, the approach proposed today would 
be more consistent with that taken in the Agency's recently promulgated 
rule (to be codified at 40 CFR 71.21 et seq), which governs how title V 
specialty permits would be issued to sources seeking alternative 
hazardous air pollution emissions limits under section 112(i)(5) of the 
Act. See 59 FR 59921 (Nov. 21, 1994) (``Federal Operating Permit 
Programs; Permits for Early Reductions Sources''). The Agency solicits 
comment on this approach.

K. Section 71.12--Prohibited Acts

    It is important to note that it is unnecessary to include an 
enforcement authority section in the part 71 Federal program 
regulations that specifically corresponds to the enforcement authority 
section in the part 70 State program regulations. Rather, because the 
program under part 71 is a Federal program, it will be enforced through 
the full Federal enforcement authorities in the Act.
    Examples of the Federal enforcement authorities available under the 
Act for violations of title V and the regulations thereunder include, 
but are not limited to, the authority to: (1) Restrain or enjoin 
immediately and effectively any person by order or by suit in court 
from engaging in any activity in violation of the Act that is 
presenting an imminent and substantial endangerment to the public 
health or welfare, or the environment; (2) seek injunctive relief in 
court to enjoin any violation of the Act; (3) issue an administrative 
order against any person assessing a civil administrative penalty of up 
to $25,000 per day for each violation of the Act; and (4) assess and 
recover a civil penalty of not more than $25,000 per day for each 
violation of the Act. Another example of enforcement authority 
available under the Act is the authority to assess criminal fines 
pursuant to title 18 of the United States Code or imprisonment for not 
to exceed 5 years, or both, against any person who knowingly violates 
title V and the [[Page 20826]] regulations thereunder. The above list 
is not an exhaustive description of the Federal enforcement authority 
available under the Act for violations of title V and the regulations 
thereunder. Accordingly, nothing in this discussion shall be construed 
to limit the Federal enforcement authorities available under the Act 
for violations of title V and the regulations thereunder.
    The Federal enforcement authority available under the Act for 
violations of title V and the regulations thereunder provides broader 
enforcement authority than the States are required to have under the 
part 70 regulations. For example, 40 CFR 70.11 requires that States 
have authority to recover civil penalties for a maximum amount of not 
less than $10,000 per day per violation. The Federal enforcement 
authority imposes a maximum penalty of up to $25,000 per day per 
violation.

VI. Administrative Requirements

A. Reference Documents

    All the documents referenced in this preamble fall into one of two 
categories. They are either reference materials that are considered to 
be generally available to the public, or they are memoranda and reports 
prepared specifically for this rulemaking. Both types of documents can 
be found in Docket No. A-93-51.

B. Office of Management and Budget (OMB) Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore, subject to 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, 
adversely and materially affecting 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 program or the rights and obligations 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.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant'' regulatory action. As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.
    The estimated annualized cost of implementing the part 71 program 
is $137.5 million to the Federal government and $79.8 million to 
respondents, for a total of $217.3 million which reflects industry's 
total expected costs of complying with the program. Since any costs 
incurred by the Agency in administering a program would be recaptured 
through fees imposed on sources, the true cost to the Federal 
government is zero. The requirements for the costs result from section 
502(d) of title V which mandates that EPA develop a Federal operating 
permits program. The proposed program is designed to improve air 
quality by: indirectly improving the quality of State-administered 
operating permits programs; encouraging the adoption of lower cost 
control strategies based on economic incentive approaches; improving 
the effectiveness of enforcement and oversight of source compliance; 
facilitating the implementation of other titles of the Act, such as 
title I; and improving the quality of emissions data and other source-
related data.

C. Regulatory Flexibility Act Compliance

    Under the Regulatory Flexibility Act, whenever an Agency publishes 
any proposed or final rule in the Federal Register, it must prepare a 
Regulatory Flexibility Analysis (RFA) that describes the impact of the 
rule on small entities (i.e., small businesses, organizations, and 
governmental jurisdictions). The EPA has established guidelines which 
require an RFA if the proposed rule will have any economic impact, 
however small, on any small entities that are subject to the rule, even 
though the Agency may not be legally required to develop such an 
analysis.
    The original part 70 rule and the recently proposed revisions to 
part 70 were determined to not have a significant and disproportionate 
adverse impact on small entities. Similarly, a regulatory flexibility 
screening analysis of the impacts of the proposed part 71 rule revealed 
that the proposed rule would not have a significant and 
disproportionate adverse impact on small entities; few small entities 
would be subject to part 71 permitting requirements because the 
proposed rule defers permitting requirements for nonmajor sources. 
Consequently, the Administrator certifies that the proposed part 71 
regulations will not have a significant and disproportionate impact on 
small entities. The EPA, however, solicits any information or data 
which might affect this proposed certification. The EPA will reexamine 
this issue and perform any subsequent analysis deemed necessary. Any 
subsequent analysis will be available in the docket and taken into 
account before promulgation.

D. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to OMB under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. An Information Collection Request document has 
been prepared by EPA and a copy may be obtained from Sandy Farmer, 
Information Policy Branch (2136), U.S. Environmental Protection Agency, 
401 M St., Washington, D.C. 20460, (202) 382-2706.
    As compared to the burden imposed by 40 CFR part 70, the average 
additional annual burden on sources for the collection of information 
is approximately 3.3 million hours, or on average approximately 96 
hours per respondent and none for State and local agencies. The total 
annualized cost for collection is estimated to be approximately $79.8 
million for sources. There is no burden for State and local agencies. 
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 (PM-223) U.S. Environmental 
Agency, 401 M St. SW, Washington, D.C. 20460; and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, D.C. 20503, marked, ``Attention: Desk Officer for EPA.'' 
The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

E. Unfunded Mandates Reform Act

    As shown in the Information Collection Request Document (ICR), 
today's action imposes no costs on State, local and tribal governments. 
The EPA estimates that the direct cost to the private sector would be 
no more than $96.6 million in any one year. and above costs industry 
would have incurred by complying with State permits programs mandated 
by the Act, for which part 71 programs are substitutes. For EPA's 
estimates of the cost to industry and permitting agencies for State 
permits programs, see 57 FR 32293 (July 21, 1992) and 59 FR 44525 
(August 29, 1994). As shown in the ICR for proposed part 71, the part 
71 [[Page 20827]] program would impose on industry a marginal cost 
(i.e., a cost above what industry would incur to comply with State 
requirements) of $31.9 million for collecting information (e.g., 
completing permit applications). Additionally, EPA has calculated the 
marginal cost to industry of the part 71 fee structure to be $64.7 
million. As shown in the ICR, part 71 programs would generate $137.5 
million in fees, using an average fee of nearly $60 per ton of certain 
regulated pollutants. On the other hand, most States are expected to 
charge approximately $31 per ton (or $25 per ton as adjusted for 
inflation using a baseline year of 1989) which is the fee amount which 
title V of the Act suggests would be adequate to fund a State permit 
program. The difference between fees generated under part 71 and under 
the otherwise applicable State fee requirements (based on $31 per ton) 
would be $64.7 million. In addition, it is important to note that the 
estimates used in these projections (and the ICR) are based on the 
assumption that EPA would administer 10 part 71 programs for a full 
year. The EPA believes that it is very unlikely that it would 
administer that many programs for such an extended time period. For 
these reasons, EPA believes that the total marginal costs to industry 
under today's proposal would not exceed $100 million in any one year. 
Therefore, the Agency concludes that it is not required by Section 202 
of the Unfunded Mandates Reform Act of 1995 to provide a written 
statement to accompany this proposed regulatory action because 
promulgation of the rule would not result in the expenditure by State, 
local, and tribal governments, in the aggregate or by the private 
sector, of $100,000,000 or more in any one year.

List of Subjects

40 CFR Part 55

    Air pollution control, Outer Continental Shelf, operating permits.

40 CFR Part 71

    Air pollution control, Prevention of significant deterioration, New 
source review, Fugitive emissions, Particulate matter, Volatile organic 
compounds, Nitrogen dioxide, Carbon monoxide, Hydrocarbons, Lead, 
Operating permits, Indian Tribes, Air pollution control--Tribal 
authority.

    Dated: March 28, 1995.
Carol Browner,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as set forth 
below.

    (Note: Material enclosed by brackets and designated as 
``Option'' set forth an alternative proposal regarding revision of 
permit terms that prescribe monitoring or recordkeeping procedures. 
Material enclosed by brackets and designated as ``alternatives'' set 
for an alternative proposal regarding processing changes under the 
administrative amendment procedures and de minimis permit revision 
procedures.)

PART 55--[AMENDED]

    1. The authority citation for part 55 continues to read as follows:

    Authority: Section 328 of the Clean Air Act (42 U.S.C. 7401, et 
seq.) as amended by Public Law 101-549.

    2. Section 55.6 is proposed to be amended by adding paragraph 
(c)(3) to read as follows:


Sec. 55.6  Permit requirements.

* * * * *
    (c) * * *
    (3) If the COA does not have an operating permits program approved 
pursuant to 40 CFR part 70 or if EPA has determined that the COA is not 
adequately implementing an approved program, the applicable 
requirements of 40 CFR part 71, the Federal operating permits program, 
shall apply to the OCS sources. The applicable requirements of 40 CFR 
part 71 will be implemented and enforced by the Administrator. The 
Administrator may delegate the authority to implement and enforce all 
or part of a Federal operating permits program to a State pursuant to 
Sec. 55.11.
* * * * *
    3. Section 55.10 is proposed to be amended by revising paragraph 
(a)(1) and by adding paragraph (b) to read as follows:


Sec. 55.10  Fees.

    (a) * * *
    (1) EPA will calculate and collect operating permit fees from OCS 
sources in accordance with the requirements of 40 CFR part 71.
* * * * *
    (b) OCS sources located beyond 25 miles of States' seaward 
boundaries. EPA will calculate and collect operating permit fees from 
OCS sources in accordance with the requirements of 40 CFR part 71.
    4. Section 55.13 is proposed to be amended by adding paragraph (f) 
to read as follows:


Sec. 55.13  Federal requirements that apply to OCS sources.

* * * * *
    (f) 40 CFR part 71 shall apply to OCS sources:
    (1) Located within 25 miles of States' seaward boundaries if the 
requirements of 40 CFR part 71 are in effect in the COA.
    (2) Located beyond 25 miles of States' seaward boundaries.
    (3) When an operating permits program approved pursuant to 40 CFR 
part 70 is in effect in the COA and a Federal operating permit is 
issued to satisfy an EPA objection pursuant to 40 CFR 71.4(e).
* * * * *

PART 71--[AMENDED]

    5. The authority citation for part 71 continues to read as follows:

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

    6. Part 71 is proposed to be amended by adding subpart A to read as 
follows:

Subpart A--Operating Permits

Sec.
71.1  Program overview.
71.2  Definitions.
71.3  Sources subject to permitting requirements.
71.4  Program implementation.
71.5  Permit applications.
71.6  Permit content.
71.7  Permit review, issuance, renewal, reopenings, and revisions.
71.8  Affected State review.
71.9  Permit fees.
71.10  Delegation of part 71 program.
71.11  Administrative record, public participation, and 
administrative review.
71.12  Prohibited acts.

Subpart A--Operating Permits


Sec. 71.1  Program overview.

    (a) This part sets forth the comprehensive Federal air quality 
operating permits permitting program consistent with the requirements 
of title V of the Clean Air Act (Act) (42 U.S.C. 7401 et seq.) and 
defines the requirements and the corresponding standards and procedures 
by which the Administrator will issue operating permits. This 
permitting program is designed to promote timely and efficient 
implementation of goals and requirements of the Act.
    (b) All sources subject to the operating permit requirements of 
title V of the Act and this part shall have a permit to operate that 
assures compliance by the source with all applicable requirements.
    (c) The requirements of this part, 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 as modified by 
title IV of the Act and 40 CFR parts 72 through 78.
    (d) Issuance of permits under this part may be coordinated with 
issuance of permits under the Resource [[Page 20828]] Conservation and 
Recovery Act (42 U.S.C. 6901 et seq.) and under the Clean Water Act (33 
U.S.C. 1251 et seq.), whether issued by the State, the U.S. 
Environmental Protection Agency (EPA), or the U.S. Army Corps of 
Engineers.
    (e) Nothing in this part shall prevent a State from administering 
an operating permits program and establishing more stringent 
requirements not inconsistent with the Act.


Sec. 71.2  Definitions.

    The following definitions apply to part 71. Except as specifically 
provided in this section, terms used in this part retain the meaning 
accorded them under the applicable requirements of the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Administrator or EPA means the Administrator of the U.S. 
Environmental Protection Agency (EPA) or his or her designee.
    Affected source shall have the meaning given to it in 40 CFR 72.2.
    Affected States are:
    (1) All States and Tribal areas whose air quality may be affected 
and that are contiguous to the State or Tribal area in which the 
permit, permit revision or permit renewal is being proposed; or that 
are within 50 miles of the permitted source. A Tribe and any associated 
Tribal area shall be treated as a State under this paragraph (1) only 
if EPA has determined that the Tribe is eligible to be treated in the 
same manner as a State.
    (2) The State or Tribal area in which a part 71 permit, permit 
revision, or permit renewal is being proposed.
    (3) Those areas within the jurisdiction of the air pollution 
control agency for the area in which a part 71 permit, permit revision, 
or permit renewal is being proposed.
    (4) Except as provided in paragraph (3) of this definition, the 
term ``affected State'' does not include any local agency, district, or 
interstate program.
    Affected unit shall have the meaning given to it in 40 CFR 72.2.
    Applicable requirement means all of the following as they apply to 
emissions units in a part 71 source (including requirements that have 
been promulgated or approved by EPA through rulemaking at the time of 
issuance but have future compliance dates):
    (1) Any standard or other requirement provided for in the 
applicable implementation plan approved or promulgated by EPA through 
rulemaking under title I of the Act that implements the relevant 
requirements of the Act, including any revisions to that plan 
promulgated in part 52 of this chapter;
    (2) Any requirement enforceable by the Administrator and by 
citizens under the Act that limits emissions for the purposes of 
creating offset credits or for complying with or avoiding the 
applicability of applicable requirements;
    (3) Any term or condition of any preconstruction permits issued 
pursuant to regulations approved or promulgated through rulemaking 
under title I, including parts C or D, of the Act;
    (4) Any standard or other requirement under section 111 of the Act, 
including section 111(d);
    (5) Any standard or other requirement under section 112 of the Act, 
including any requirement concerning accident prevention under section 
112(r)(7) of the Act;
    (6) Any standard or other requirement of the acid rain program 
under title IV of the Act or 40 CFR parts 72 through 78;
    (7) Any requirements established pursuant to section 114(a)(3) or 
504(b) of the Act;
    (8) Any standard or other requirement governing solid waste 
incineration, under section 129 of the Act;
    (9) Any standard or other requirement for consumer and commercial 
products, under section 183(e) of the Act;
    (10) Any standard or other requirement for tank vessels, under 
section 183(f) of the Act;
    (11) Any standard or other requirement of the program to control 
air pollution from outer continental shelf sources, under section 328 
of the Act;
    (12) Any standard or other requirement of the regulations 
promulgated at 40 CFR part 82, subpart B and subpart F to protect 
stratospheric ozone under sections 608 or 609 of title VI of the Act, 
unless the Administrator has determined that such requirements need not 
be contained in a permit issued under title V of the Act, and any 
standard or other requirement under any other section(s) of title VI of 
the Act that the Administrator determines should be contained in a 
permit issued under title V of the Act; and
    (13) Any national ambient air quality standard or increment or 
visibility requirement under part C of title I of the Act, but only as 
it would apply to temporary sources permitted pursuant to section 
504(e) of the Act.
    Delegate agency means the State air pollution control agency, local 
agency, other State agency, Tribal agency, or other agency authorized 
by the Administrator pursuant to Sec. 71.10 to carry out all or part of 
a permit program under part 71.
    Designated representative shall have the meaning given to it in 40 
CFR 72.2.
    Draft permit means the version of a permit for which the permitting 
authority offers public participation under Sec. 71.7 or Sec. 71.11 and 
affected State review under Sec. 71.8.
    Eligible Indian tribe or Eligible tribe means a tribe that has been 
determined by EPA to meet the criteria for being treated in the same 
manner as a State, pursuant to the regulations implementing section 
301(d)(2) of the Act.1

    \1\Proposed rule entitled ``Indian Tribes: Air Quality Planning 
and Management'', 59 FR 43956 (August 25, 1994).
---------------------------------------------------------------------------

    Emissions allowable under the permit means a federally enforceable 
permit term or condition determined at issuance to be required by an 
applicable requirement that establishes an emissions limit (including a 
work practice standard) or a federally enforceable emissions cap that 
the source has assumed to avoid an applicable requirement to which the 
source would otherwise be subject.
    Emissions unit means any part or activity of a stationary source 
that emits or has the potential to emit any regulated air pollutant or 
any pollutant listed under section 112(b) of the Act. This term is not 
meant to alter or affect the definition of the term ``unit'' for 
purposes of title IV of the Act.
    Federal Indian reservation, Indian reservation or reservation means 
all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.
    Final action or final permit action means the issuance or denial of 
a part 71 permit, permit renewal, or permit revision by the permitting 
authority, which has completed all review procedures required by 
Secs. 71.7, 71.8, and 71.11, and is subject to administrative appeal 
and judicial review.
    Fugitive emissions are those emissions which could not reasonably 
pass through a stack, chimney, vent, or other functionally-equivalent 
opening.
    General permit means a part 71 permit that meets the requirements 
of Sec. 71.6(d).
    Indian tribe or tribe means any Indian tribe, band, nation, or 
other organized group or community, including any Alaskan native 
village, which is federally recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.
    Insignificant activity or emissions means those activities, 
operations, and [[Page 20829]] emissions levels which meet the criteria 
listed in Sec. 71.5(g) for exemption from the documentation and 
reporting requirements of Sec. 71.5(f).
    Major new source review (major NSR) means a title I program 
contained in an EPA-approved or promulgated implementation plan for the 
preconstruction review of changes which are subject to review as new 
major stationary sources or major modifications under EPA regulations 
implementing parts C or D of title I of the Act. (40 CFR 51.165 through 
51.166, 40 CFR part 51, subpart P, 40 CFR 52.21 through 52.29).
    Major source means any stationary source or group of stationary 
sources as described in paragraph (1), (2), or (3) of this definition. 
For purposes of paragraphs (2) and (3) of this definition, major 
stationary source includes any group of stationary sources that are 
located on one or more contiguous or adjacent properties, and are under 
common control of the same person (or persons under common control) 
belonging to a single major industrial grouping. For the purposes of 
defining ``major source'' in paragraph (2) or (3) of this definition, a 
stationary source or group of stationary sources shall be considered 
part of a single industrial grouping if all of the pollutant emitting 
activities at such source or group of sources on contiguous or adjacent 
properties belong to the same Major Group (i.e., all have the same two-
digit code) as described in the Standard Industrial Classification 
Manual, 1987. In addition, for purposes of paragraphs (2) and (3) of 
this definition, any facility that supports a source, where both are 
under the control of the same person (or persons under common control) 
and on contiguous or adjacent properties, shall be considered a support 
facility and part of the same source, regardless of the 2-digit code of 
that facility. A stationary source (or group of stationary sources) is 
considered a support facility to a source if at least 50 percent of the 
output of the support facility is dedicated to the source.
    (1) A major source under section 112 of the Act, which is defined 
as:
    (i) For pollutants other than radionuclides, any stationary source 
or group of stationary sources located within a contiguous area and 
under common control that emits or has the potential to emit, in the 
aggregate, 10 tons per year (tpy) or more of any hazardous air 
pollutant (HAP) (including any fugitive emissions of such pollutant) 
which has been listed pursuant to section 112(b) of the Act, 25 tpy or 
more of any combination of such HAP (including any fugitive emissions 
of such pollutants), or such lesser quantity as the Administrator may 
establish by rule. Notwithstanding the preceding sentence, emissions 
from any oil or gas exploration or production well (with its associated 
equipment) and emissions from any pipeline compressor or pump station 
shall not be aggregated with emissions from other similar units, 
whether or not such units are in a contiguous area or under common 
control, to determine whether such units or stations are major sources; 
or
    (ii) For radionuclides, ``major source'' shall have the meaning 
specified by the Administrator by rule.
    (2) A major stationary source of air pollutants or any group of 
stationary sources as defined in section 302 of the Act, that directly 
emits, or has the potential to emit, 100 tpy or more of any air 
pollutant (including any fugitive emissions of any such pollutant, as 
determined by rule by the Administrator). The fugitive emissions of a 
stationary source shall not be considered in determining whether it is 
a major stationary source for the purposes of section 302(j) of the Act 
or for the purposes of paragraph (3) of this definition, unless the 
source belongs to one of the following categories of stationary source:
    (i) Coal cleaning plants (with thermal dryers);
    (ii) Kraft pulp mills;
    (iii) Portland cement plants;
    (iv) Primary zinc smelters;
    (v) Iron and steel mills;
    (vi) Primary aluminum ore reduction plants;
    (vii) Primary copper smelters;
    (viii) Municipal incinerators capable of charging more than 250 
tons of refuse per day;
    (ix) Hydrofluoric, sulfuric, or nitric acid plants;
    (x) Petroleum refineries;
    (xi) Lime plants;
    (xii) Phosphate rock processing plants;
    (xiii) Coke oven batteries;
    (xiv) Sulfur recovery plants;
    (xv) Carbon black plants (furnace process);
    (xvi) Primary lead smelters;
    (xvii) Fuel conversion 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; or
    (xxvii) All other stationary source categories regulated by a 
standard promulgated as of August 7, 1980, under section 111 or 112 of 
the Act, but only with respect to those air pollutants that have been 
regulated for that category;
    (3) A major stationary source as defined in part D of title I of 
the Act, including:
    (i) For ozone nonattainment areas, sources with the potential to 
emit 100 tpy or more of volatile organic compounds or oxides of 
nitrogen in areas classified as ``marginal'' or ``moderate,'' 50 tpy or 
more in areas classified as ``serious,'' 25 tpy or more in areas 
classified as ``severe,'' and 10 tpy or more in areas classified as 
``extreme;'' except that the references in this paragraph (3)(i) to 
100, 50, 25, and 10 tpy of nitrogen oxides shall not apply with respect 
to any source for which the Administrator has made a finding, under 
section 182 (f)(1) or (f)(2) of the Act, that requirements under 
section 182(f) of the Act do not apply;
    (ii) For ozone transport regions established pursuant to section 
184 of the Act, sources with the potential to emit 50 tpy or more of 
volatile organic compounds;
    (iii) For carbon monoxide nonattainment areas: That are classified 
as ``serious,'' and in which stationary sources contribute 
significantly to carbon monoxide levels as determined under rules 
issued by the Administrator, sources with the potential to emit 50 tpy 
or more of carbon monoxide; and
    (iv) For particulate matter (PM-10) nonattainment areas classified 
as ``serious,'' sources with the potential to emit 70 tpy or more of 
PM-10 or, where applicable, a PM-10 precursor.
    Minor new source review (minor NSR) means a title I program 
approved by EPA into a State's implementation plan under EPA 
regulations implementing section 110(a)(2) of title I of the Act for 
the preconstruction review of changes which are subject to review as 
new or modified sources (40 CFR 51.160 through 51.164) and which do not 
qualify as new major stationary sources or major modifications under 
EPA regulations implementing part C or D of title I of the Act (40 CFR 
51.165 through 51.166, 40 CFR part 51, subpart P, 40 CFR 52.21 through 
52.29).
    Part 70 permit means any permit or group of permits covering a part 
70 source that has been issued, renewed, amended or revised pursuant to 
40 CFR part 70. [[Page 20830]] 
    Part 70 program or State program means an operating permits program 
approved by the Administrator under 40 CFR part 70.
    Part 70 source means any source subject to the permitting 
requirements of 40 CFR part 70.
    Part 71 permit or permit (unless the context suggests otherwise) 
means any permit or group of permits covering a part 71 source that has 
been issued, renewed, amended or revised pursuant to this part.
    Part 71 program means a Federal operating permits program under 
this part.
    Part 71 source means any source subject to the permitting 
requirements of this part, as provided in Sec. 71.3(a) and 
Sec. 71.3(b).
    Permit program costs means all reasonable (direct and indirect) 
costs required to administer an operating permits program, as set forth 
in Sec. 71.9(b) of this part.
    Permit revision means any administrative permit amendment, de 
minimis permit revision, minor permit revision, or significant permit 
revision.
    Permitting authority means one of the following:
    (1) The Administrator, in the case of EPA-implemented programs;
    (2) A delegate agency authorized by the Administrator to carry out 
a Federal permit program under this part; or
    (3) The State air pollution control agency, local agency, other 
State agency, Indian Tribe, or other agency with a part 70 program.
    Potential to emit means the maximum capacity of a stationary source 
to emit any air pollutant under its physical and operational design. 
Any physical or operational limitation on the capacity of a source to 
emit an air pollutant, including air pollution control equipment and 
restrictions on hours of operation or on the type or amount of material 
combusted, stored, or processed, shall be treated as part of its design 
if the limitation is enforceable by the Administrator and by citizens 
under the Act. This term does not alter or affect the use of this term 
for any other purposes under the Act, or the term ``capacity factor'' 
as used in title IV of the Act or 40 CFR parts 72 through 78.
    Proposed permit means the version of a permit that the delegate 
agency proposes to issue and forwards to the Administrator for review 
in compliance with Sec. 71.10(d).
    Regulated air pollutant means the following:
    (1) Nitrogen oxides or any volatile organic compounds;
    (2) Any pollutant for which a national ambient air quality standard 
has been promulgated;
    (3) Any pollutant that is subject to any standard promulgated under 
section 111 of the Act;
    (4) Any Class I or II substance subject to a standard promulgated 
under or established by title VI of the Act; or
    (5) Any pollutant subject to a standard promulgated under section 
112 of the Act or other requirements established under section 112 of 
the Act, including sections 112 (g), (j), and (r) of the Act, including 
the following:
    (i) Any pollutant subject to requirements under section 112(j) of 
the Act. If the Administrator fails to promulgate a standard by the 
date established pursuant to section 112(e) of the Act, any pollutant 
for which a subject source would be major shall be considered to be 
regulated on the date 18 months after the applicable date established 
pursuant to section 112(e) of the Act; and
    (ii) Any pollutant for which the requirements of section 112(g)(2) 
of the Act have been met, but only with respect to the individual 
source subject to section 112(g)(2) requirement.
    Regulated pollutant (for fee calculation), which is used only for 
purposes of Sec. 71.9(c), means any regulated air pollutant except the 
following:
    (1) Carbon monoxide;
    (2) Any pollutant that is a regulated air pollutant solely because 
it is a Class I or II substance subject to a standard promulgated under 
or established by title VI of the Act; or
    (3) Any pollutant that is a regulated air pollutant solely because 
it is subject to a standard or regulation under section 112(r) of the 
Act.
    Renewal means the process by which a permit is reissued at the end 
of its term.
    Responsible official means one of the following: (1) For a 
corporation: a president, secretary, treasurer, or vice-president of 
the corporation in charge of a principal business function, or any 
other person who performs similar policy or decision-making functions 
for the corporation, or a duly authorized representative of such person 
if the representative is responsible for the overall operation of one 
or more manufacturing, production, or operating facilities applying for 
or subject to a permit and either:
    (i) The facilities employ more than 250 persons or have gross 
annual sales or expenditures exceeding $25 million (in second quarter 
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;
    (3) For a municipality, State, Federal, or other public agency: 
either a principal executive officer or ranking elected official. For 
the purposes of this part, a principal executive officer of a Federal 
agency includes the chief executive officer having responsibility for 
the overall operations of a principal geographic unit of the agency 
(e.g., a Regional Administrator of EPA); or
    (4) For affected sources:
    (i) The designated representative for all actions, standards, 
requirements, or prohibitions under title IV of the Act or 40 CFR parts 
72 through 78; or
    (ii) The designated representative or a person meeting the 
provisions of paragraph (1), (2), or (3) of this definition for any 
other purposes under part 71.
    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 Marianas Islands. Where such meaning is 
clear from the context, ``State'' shall have its conventional meaning. 
For purposes of the acid rain program, the term ``State'' shall be 
limited to authorities within the 48 contiguous States and the District 
of Columbia as provided in section 402(14) of the Act.
    Stationary source means any building, structure, facility, or 
installation that emits or may emit any regulated air pollutant or any 
pollutant listed under section 112(b) of the Act.
    Title I modification or modification under any provision of title I 
of the Act means any modification under part C or part D of title I or 
sections 110(a)(2), 111(a)(4), 112(a)(5), or 112(g) of the Act; under 
regulations codified in this chapter to implement sections 112(a)(5) 
and 112(g) of the Act or in 40 CFR 51.160 through 51.164, 40 CFR part 
60, or in 40 CFR 61.07; or under State regulations approved by EPA to 
meet such requirements.
    Tribal area means, for the purposes of the regulations under this 
part, those lands over which an Indian Tribe has authority under the 
Clean Air Act to regulate air quality. These lands include all areas 
within the exterior boundaries of an Indian reservation and any other 
areas outside reservation boundaries that EPA determines to be within a 
Tribe's inherent authority. [[Page 20831]] 


Sec. 71.3  Sources subject to permitting requirements.

    (a) Part 71 sources. The following sources are subject to the 
permitting requirements under this part:
    (1) Any major source, except that a source is not required to 
obtain a permit if it would be classified as a major source solely 
because it has the potential to emit major amounts of a pollutant 
listed pursuant to section 112(r)(3) of the Act and is not otherwise 
required to obtain a permit under this part;
    (2) Any source, including an area source (i.e., a nonmajor source), 
subject to a standard, limitation, or other requirement under section 
111 of the Act;
    (3) Any source, including an area source (i.e., a nonmajor source), 
subject to a standard or other requirement under section 112 of the 
Act, except that a source is not required to obtain a permit solely 
because it is subject to regulations or requirements under section 
112(r) of the Act;
    (4) Any source required to have a permit under part C or D of title 
I of the Act;
    (5) Any affected source; and
    (6) Any source in a source category designated by the Administrator 
pursuant to this section.
    (b) Source category exemptions.
    (1) All sources listed in paragraph (a) of this section that are 
not major sources, affected sources, or solid waste incineration units 
required to obtain a permit pursuant to section 129(e) of the Act are 
exempted from the obligation to obtain a part 71 permit until such time 
as the Administrator completes a rulemaking to determine how the 
program should be structured for nonmajor sources and the 
appropriateness of any permanent exemptions in addition to those 
provided for in paragraph (b)(4) of this section.
    (2) Nonmajor sources subject to a standard or other requirement 
under either section 111 or 112 of the Act after July 21, 1992 shall be 
exempted from the obligation to obtain a part 71 permit if the 
Administrator exempts such sources from the requirement to obtain a 
part 70 or part 71 permit at the time that the new standard is 
promulgated.
    (3) Any source listed in paragraph (a) of this section that is 
exempt from the requirement to obtain a permit under this section may 
opt to apply for a permit under a part 71 program.
    (4) The following source categories are exempted from the 
obligation to obtain a part 71 permit:
    (i) All sources and source categories that would be required to 
obtain a permit solely because they are subject to 40 CFR part 60, 
Subpart AAA--Standards of Performance for New Residential Wood Heaters; 
and
    (ii) All sources and source categories that would be required to 
obtain a permit solely because they are subject to 40 CFR part 61, 
Subpart M--National Emission Standard for Hazardous Air Pollutants for 
Asbestos, Sec. 61.145, Standard for Demolition and Renovation.


Sec. 71.4  Program implementation.

    (a) Part 71 programs for States. The Administrator will administer 
and enforce a full or partial operating permits program for a State 
(excluding Tribal areas) in the following situations:
    (1) A program for a State meeting the requirements of part 70 of 
this chapter has not been granted full approval under Sec. 70.4 of this 
chapter by the Administrator by November 15, 1995, and the State's part 
70 program has not been granted interim approval under Sec. 70.4(d) of 
this chapter for a period extending beyond November 15, 1995. The 
effective date of such a part 71 program is November 15, 1995.
    (2) An operating permits program for a State which was granted 
interim approval under Sec. 70.4(d) of this chapter has not been 
granted full approval by the Administrator by the expiration of the 
interim approval period or November 15, 1995, whichever is later. Such 
a part 71 program shall be effective upon expiration of the interim 
approval or November 15, 1995, whichever is later.
    (3) Any partial part 71 program will be effective only in those 
portions of a State that are not covered by a partial part 70 program 
that has been granted full or interim approval by the Administrator 
pursuant to Sec. 70.4(c) of this chapter.
    (b) Part 71 programs for Tribal areas. The Administrator may 
administer and enforce an operating permits program for a Tribal area, 
as defined in Sec. 71.2, when an operating permits program for the area 
which meets the requirements of part 70 of this chapter has not been 
granted full or interim approval by the Administrator by November 15, 
1995.
    (1) Determining the boundaries of a Tribal area. At least 90 days 
prior to the effective date of a part 71 program for a Tribal area, the 
Administrator shall notify all appropriate governmental entities of the 
proposed geographic boundaries of the program.
    (i) For programs solely addressing air resources within the 
exterior boundaries of the Reservation, EPA's notification of other 
governmental entities shall specify the geographic boundaries of the 
Reservation. For programs also addressing off-reservation areas, EPA's 
notification of other governmental entities shall include the substance 
and bases of the Tribe's assertions of jurisdiction over such off-
reservation area(s), including:
    (A) A map or legal description of the off-reservation area(s) over 
which the Tribe asserts jurisdiction.
    (B) A statement by the Tribe's legal counsel (or equivalent 
official) which describes the basis for the Tribe's assertion of 
jurisdiction which may include a copy of documents such as Tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions which support the Tribe's assertion of jurisdiction 
over the off-reservation area(s).
    (ii) The appropriate governmental entities shall have 15 days to 
provide written comments to the Administrator regarding any dispute 
concerning the boundary of the Reservation. Where a Tribe has asserted 
jurisdiction over off-reservation areas, appropriate governmental 
entities may request a single 15-day extension to the general 15-day 
comment period.
    (iii) In all cases, comments must be timely, limited to the scope 
of the Tribe's jurisdictional assertion, and clearly explain the 
substance, bases and extent of any objections. If a Tribe's assertion 
is subject to a conflicting claim, the EPA may request additional 
information and may consult with the Department of the Interior.
    (iv) The Administrator shall promptly decide the scope of the 
Tribe's jurisdiction. If a conflicting claim cannot be promptly 
resolved, the Administrator shall implement a part 71 program 
encompassing all undisputed areas.
    (v) The part 71 program will extend to all areas within the 
exterior boundaries of the Tribe's reservation, as determined by the 
Administrator, and any other areas the Administrator has determined to 
be within the Tribe's jurisdiction.
    (vi) The Administrator's determination of the scope of the Tribe's 
jurisdiction shall be published in the Federal Register at least 30 
days prior to the effective date of the part 71 program.
    (2) The effective date of a part 71 program for a Tribal area shall 
be November 15, 1997.
    (3) Notwithstanding paragraph (b)(2) of this section, the 
Administrator, in consultation with the governing body of the Tribal 
area, may adopt an earlier effective date.
    (4) Notwithstanding paragraph (i)(2) of this section, within two 
years of the [[Page 20832]] effective date of the part 71 program for 
the Tribal area, the Administrator shall take final action on permit 
applications from part 71 sources that are submitted within the first 
full year after the effective date of the part 71 program.
    (c) Part 71 programs imposed due to inadequate implementation.
    (1) The Administrator will administer and enforce an operating 
permits program for a permitting authority if the Administrator has 
notified the permitting authority, in accordance with Sec. 70.10(b)(1) 
of this chapter, of the Administrator's determination that a permitting 
authority is not adequately administering or enforcing its approved 
operating permits program, or any portion thereof, and the permitting 
authority fails to do either of the following:
    (i) Correct the deficiencies within 18 months after the 
Administrator issues the notice; or
    (ii) Take significant action to assure adequate administration and 
enforcement of the program within 90 days of the Administrator's 
notice.
    (2) The effective date of a part 71 program promulgated in 
accordance with this paragraph (c) shall be:
    (i) Two years after the Administrator's notice if the permitting 
authority has not corrected the deficiency within 18 months after the 
date of the Administrator's notice; or
    (ii) Such earlier time as the Administrator determines appropriate 
if the permitting authority fails, within 90 days of the 
Administrator's notice, to take significant action to assure adequate 
administration and enforcement of the program.
    (d) Part 71 programs for OCS sources.
    (1) Using the procedures of this part, the Administrator will issue 
permits to any source which is an outer continental shelf (OCS) source, 
as defined under Sec. 55.2 of this chapter, is subject to the 
requirements of part 55 of this chapter and section 328(a) of the Act, 
is subject to the requirement to obtain a permit under title V of the 
Act, and is either:
    (i) Located beyond 25 miles of States' seaward boundaries; or
    (ii) Located within 25 miles of States' seaward boundaries and a 
part 71 program is being administered and enforced by the Administrator 
for the corresponding onshore area, as defined in Sec. 55.2 of this 
chapter, for that source.
    (2) The requirements of Sec. 71.4(d)(1)(i) shall apply on 
[Effective date of the final regulations].
    (3) The requirements of Sec. 71.4(d)(1)(ii) apply upon the 
effective date of a part 71 program for the corresponding onshore area.
    (e) Part 71 program for permits issued to satisfy an EPA objection. 
Using the procedures of this part and 40 CFR 70.8 (c) or (d), or 40 CFR 
70.7(g) (4) or (5) (i) and (ii), as appropriate, the Administrator will 
deny, terminate, revise, revoke or reissue a permit which has been 
proposed or issued by a permitting authority or will issue a part 71 
permit when:
    (1) A permitting authority with an approved part 70 operating 
permits program fails to respond to a timely objection to the issuance 
of a permit made by the Administrator pursuant to section 505(b) of the 
Act and Sec. 70.8 (c) and (d) of this chapter;
    (2) The Administrator, under Sec. 70.7(g) of this chapter, finds 
that cause exists to reopen a permit and the permitting authority fails 
to either:
    (i) Submit to the Administrator a proposed determination of 
termination, modification, or revocation and reissuance, as 
appropriate; or
    (ii) Resolve any objection EPA makes to the permit which the 
permitting authority proposes to issue in response to EPA's finding of 
cause to reopen, and to terminate, revise, or revoke and reissue the 
permit in accordance with that objection.
    (3) The requirements of this paragraph (e) shall apply on 
[Effective date of the final regulations].
    (f) Use of selected provisions of this part. The Administrator may 
utilize any or all of the provisions of this part to administer the 
permitting process for individual sources or take action on individual 
permits, or may adopt through rulemaking portions of a State or Tribal 
program in combination with provisions of this part to administer a 
Federal program for the State or Tribal area in substitution of or 
addition to the Federal program otherwise required by this part.
    (g) Public notice of part 71 programs. In taking action to 
administer and enforce an operating permits program under this part, 
the Administrator will publish a notice in the Federal Register 
informing the public of such action and the effective date of any part 
71 program as set forth in Sec. 71.4 (a), (b), (c), or (d)(1)(ii). The 
promulgation of this part serves as the notice for the part 71 permit 
programs described in Sec. 71.4(d)(1) (i) and (e). The EPA will also 
publish a notice in the Federal Register of any delegation of a portion 
of the part 71 program to a State, eligible Tribe, or local agency 
pursuant to the provisions of Sec. 71.10. In addition to notices 
published in the Federal Register under this paragraph (g), the 
Administrator will, to the extent practicable, publish notice in a 
newspaper of general circulation within the area subject to the part 71 
program effectiveness or delegation, and will send a letter to the 
Tribal governing body for an Indian Tribe or the Governor (or his or 
her designee) of the affected area to provide notice of such 
effectiveness or delegation.
    (h) Effect of limited deficiencies in State or Tribal programs. The 
Administrator may administer and enforce a part 71 program in a State 
or Tribal area even if only limited deficiencies exist either in the 
initial program submittal for a State or eligible Tribe under part 70 
of this chapter or in an existing State or Tribal program that has been 
approved under part 70 of this chapter.
    (i) Transition plan for initial permit issuance. If a full or 
partial part 71 program becomes effective in a State or Tribal area 
prior to the issuance of part 70 permits to all part 70 sources under 
an existing program that has been approved under part 70 of this 
chapter, the Administrator shall take final action on initial permit 
applications for all part 71 sources in accordance with the following 
transition plan.
    (1) All part 71 sources that have not received part 70 permits 
shall submit permit applications under this part within 1 year after 
the effective date of the part 71 program.
    (2) Final action shall be taken on at least one-third of such 
applications annually over a period not to exceed 3 years after such 
effective date.
    (3) Any complete permit application containing an early reduction 
demonstration under section 112(i)(5) of the Act shall be acted on 
within 12 months of receipt of the complete application.
    (4) Submittal of permit applications and the permitting of affected 
sources shall occur in accordance with the deadlines in title IV of the 
Act and 40 CFR parts 72 through 78.
    (j) Delegation of part 71 programs. The Administrator may 
promulgate a part 71 program in a State or Tribal area and delegate 
part of the responsibility for administering the part 71 program to the 
State or eligible Tribe in accordance with the provisions of 
Sec. 71.10; however, delegation of a part of a program will not 
constitute any type of approval of a State or Tribal operating permits 
program under part 70 of this chapter. Where only selected portions of 
a part 71 program are administered by the Administrator and the State 
or eligible Tribe is delegated the remaining portions of the program, 
the notice referred to in paragraph (g) of this section will define the 
respective roles of the State or eligible Tribe and the 
[[Page 20833]] Administrator in administering and enforcing the part 71 
operating permits program.
    (k) EPA administration and enforcement of part 70 permits. When the 
Administrator administers and enforces a part 71 program after a 
determination and notice under Sec. 70.10(b)(1) of this chapter that a 
State or Tribe is not adequately administering and enforcing an 
operating permits program approved under part 70 of this chapter, the 
Administrator will administer and enforce permits issued under the part 
70 program until part 71 permits are issued using the procedures of 
part 71. Until such time as part 70 permits are replaced by part 71 
permits, the Administrator will revise, reopen, revise, terminate, or 
revoke and reissue part 70 permits using the procedures of part 71 and 
will assess and collect fees in accordance with the provisions of 
Sec. 71.9.
    (l) Transition to approved part 70 program. The Administrator will 
suspend the issuance of part 71 permits promptly upon publication of 
notice of approval of a State or Tribal operating permits program that 
fully meets the requirements of part 70 of this chapter. The 
Administrator may retain jurisdiction over the part 71 permits for 
which the administrative or judicial review process is not complete and 
will address this issue in the notice of State program approval. After 
approval of a State or Tribal program and the suspension of issuance of 
part 71 permits by the Administrator:
    (1) The Administrator, or the permitting authority acting as the 
Administrator's delegated agent, will continue to administer and 
enforce part 71 permits until they are replaced by permits issued under 
the approved part 70 program. Until such time as part 71 permits are 
replaced by part 70 permits, the Administrator will revise, reopen, 
revise, terminate, or revoke and reissue part 71 permits using the 
procedures of the part 71 program. However, if the Administrator has 
delegated authority to administer part 71 permits to a delegate agency, 
the delegate agency will revise, reopen, terminate, or revoke and 
reissue part 71 permits using the procedures of the approved part 70 
program. If a part 71 permit expires prior to the issuance of a part 70 
permit, all terms and conditions of the part 71 permit, including any 
permit shield that may be granted pursuant to Sec. 71.6(n), shall 
remain in effect until the part 70 permit is issued or denied, provided 
that a timely and complete application for a permit renewal was 
submitted to the permitting authority in accordance with the 
requirements of the approved part 70 program.
    (2) A State or local agency or Indian Tribe with an approved part 
70 operating permits program may issue part 70 permits for all sources 
with part 71 permits in accordance with a permit issuance schedule 
approved as part of the approved part 70 program or may issue part 70 
permits to such sources at the expiration of the part 71 permits.
    (3) The Administrator shall rescind the part 71 permit for a source 
when it is replaced by a part 70 permit issued under the approved part 
70 program.
    (m) Exemption for certain territories. Upon petition by the 
Governor of Guam, American Samoa, the Virgin Islands, or the 
Commonwealth of the Northern Marianas Islands, the Administrator may 
exempt any source or class of sources in such territory from the 
requirement to have a part 71 permit under this chapter. Such an 
exemption does not exempt such source or class of sources from any 
requirement of section 112 of the Act, including the requirements of 
section 112(g) or (j).
    (1) Such exemption may be granted if the Administrator finds that 
compliance with part 71 is not feasible or is unreasonable due to 
unique geographical, meteorological, or economic factors of such 
territory, or such other local factors as the Administrator deems 
significant. Any such petition shall be considered in accordance with 
section 307(d) of the Act, and any exemption granted under this 
paragraph (m) shall be considered final action by the Administrator for 
the purposes of section 307(b) of the Act.
    (2) The Administrator shall promptly notify the Committees on 
Energy and Commerce and on Interior and Insular Affairs of the House of 
Representatives and the Committees on Environment and Public Works and 
on Energy and Natural Resources of the Senate upon receipt of any 
petition under this paragraph (m) and of the approval or rejection of 
such petition and the basis for such action.
    (n) Retention of records. The records for each draft, proposed, and 
final permit application, renewal, or modification shall be kept by the 
Administrator for a period of 5 years.


Sec. 71.5  Permit applications.

    (a) Duty to apply. The owner or operator of a source required to 
obtain a permit under Sec. 71.3 shall submit a timely and complete 
permit application in accordance with this section.
    (b) Timely application.
    (1) A timely application for a source which does not have an 
existing operating permit issued by a State under the State's approved 
part 70 program and is applying for a part 71 permit for the first time 
is one that is submitted within 12 months or an earlier date after the 
source becomes subject to the part 71 program. Sources required to 
submit applications earlier than 12 months will be notified in advance 
by the permitting authority of this paragraph (b)(1) and given a 
reasonable time to submit their applications. In no case will this 
notice be given less than 120 days in advance of the submittal date.
    (2) For purposes of changes eligible under Sec. 71.6(q), a timely 
application is one that is submitted not later than 6 months after the 
notice required under Sec. 71.6(q)(3).
    (3) For purposes of permit revisions other than changes eligible 
under Sec. 71.6(g), a timely application is one that is submitted by 
the relevant deadlines set forth in Sec. 71.7(e), (f), (g), or (h).
    (4) For purposes of permit renewal, a timely application is one 
that is submitted at least 6 months but no longer than 18 months prior 
to the date of the part 70 or part 71 permit expiration.
    (5) Applications for initial phase II acid rain permits shall be 
submitted to the permitting authority by January 1, 1996 for sulfur 
dioxide, and by January 1, 1998 for nitrogen oxides or by such other 
deadlines established under title IV of the Act and 40 CFR parts 72 
through 78.
    (c) Complete application. To be found complete, an application must 
provide all information required pursuant to paragraph (f) of this 
section sufficient to allow the permitting authority to begin 
processing the application, except that an application for a permit 
revision need supply such information only if it is related to the 
proposed change. Additionally, an initial applicant must remit payment 
of any fees owed pursuant to Sec. 71.9 in order for the application to 
be found complete. The information supplied by the applicant pursuant 
to paragraph (f) of this section must be sufficient to evaluate the 
subject source and its application and to determine all applicable 
requirements. A responsible official shall certify the submitted 
information consistent with paragraph (i) of this section. Unless the 
permitting authority determines that an application is not complete 
within 60 days of receipt of the application, such application shall be 
deemed to be complete, except as otherwise provided in Sec. 71.7(a)(3). 
If, while processing an application that has been determined or deemed 
to be complete, the permitting authority determines that additional 
information is necessary to evaluate or take final action on that 
application, the [[Page 20834]] permitting authority may request such 
information in writing and set a reasonable deadline for a response. 
The source's ability to operate without a permit, as set forth in 
Sec. 71.7(b), shall be in effect from the date the application is 
determined or deemed to be complete until the final permit is issued, 
provided that the applicant submits any requested additional 
information by the deadline specified by the permitting authority.
    (d) Confidential information. In a case where a source submits 
information to the permitting authority under a business 
confidentiality claim, the permitting authority will follow procedures 
found at 40 CFR part 2. Pursuant to Sec. 2.301(e) of this chapter, 
information contained in the permit application regarding emissions 
data or a standard or limitation is not entitled to confidential 
treatment.
    (e) Duty to supplement or correct application. Any applicant who 
fails to submit any relevant facts or who has submitted incorrect 
information in a permit application shall, upon becoming aware of such 
failure or incorrect submittal, promptly submit such supplementary 
facts or corrected information. In addition, an applicant shall provide 
additional information as necessary to address any requirements that 
become applicable to the source after the date it filed a complete 
application but prior to release of a draft permit.
    (f) Standard application form. Part 71 sources shall submit the 
following information using application forms provided by the 
permitting authority (or if provided by the permitting authority, an 
electronic reporting method). Information as described in this 
paragraph (f) for each emissions unit at a part 71 source shall be 
included in the application. A complete part 71 permit application 
shall include the following elements:
    (1) Identifying information, including company name and address (or 
plant name and address if different from the company name), owner's 
name and agent, and telephone numbers and names of plant site managers/
contacts.
    (2) A description of the source's processes and products (by 
Standard Industrial Classification Code) including any associated with 
each alternate scenario identified by the source.
    (3) The following emissions-related information:
    (i) All emissions of pollutants for which the source is major, and 
all emissions of regulated air pollutants. A permit application shall 
describe all emissions of regulated air pollutants emitted from any 
emissions unit, except where such units are exempted under paragraph 
(g) of this section. Fugitive emissions shall be included in the permit 
application in the same manner as stack emissions for each emissions 
unit, regardless of whether the source category in question is included 
in the list of sources contained in the definition of major source. 
Moreover, information related to the emissions of air pollutants 
sufficient to verify which requirements are applicable to the source, 
and other information necessary to collect any permit fees owed under 
the fee schedule established pursuant to Sec. 71.9 must be provided.
    (ii) Identification and description of all points of emissions 
described in paragraph (f)(3)(i) of this section in sufficient detail 
to establish the basis for fees and applicability of requirements of 
the Act.
    (iii) Emissions rates in tpy and in such additional terms as are 
necessary to establish compliance consistent with the applicable 
standard reference test method.
    (iv) The following information to the extent it is needed to 
determine or regulate emissions: fuels, fuel use, raw materials, 
production rates, and operating schedules.
    (v) Identification and description of air pollution control 
equipment and compliance monitoring devices or activities, including 
brief descriptions of any appropriate operation and maintenance 
procedures and quality assurance procedures.
    (vi) Limitations on source operation affecting emissions or any 
work practice standards, where applicable, for all regulated air 
pollutants at the part 71 source.
    (vii) Other information required by any applicable requirement 
(including, but not limited to, stack height limitations developed 
pursuant to section 123 of the Act).
    (viii) Calculations on which the information in paragraphs 
(f)(3)(i) through (vii) of this section is based.
    (4) The following air pollution control requirements:
    (i) Citation and description of all applicable requirements, and
    (ii) Description of or reference to any applicable test method for 
determining compliance with each applicable requirement.
    (5) Other specific information that may be necessary to implement 
and enforce other applicable requirements of the Act or of this part or 
to determine the applicability of such requirements.
    (6) An explanation of any proposed exemptions from otherwise 
applicable requirements.
    (7) Additional information as determined to be necessary by the 
permitting authority to define alternative operating scenarios 
identified by the source pursuant to Sec. 71.6(a)(8) or to define 
permit terms and conditions implementing Sec. 71.6(a)(9) or 
Sec. 71.6(p).
    (8) Identification of those emissions units eligible for emissions 
trading under Sec. 71.6(a)(9) and those emissions units at which 
changes may be processed under de minimis permit revision procedures 
contained in Sec. 71.7(f).
    (9) A compliance plan for all part 71 sources that contains all the 
following:
    (i) A description of the compliance status of the source with 
respect to all applicable requirements.
    (ii) A description as follows:
    (A) For applicable requirements with which the source is in 
compliance, a statement that the source will continue to comply with 
such requirements.
    (B) For applicable requirements that will become effective during 
the permit term, a statement that the source will meet such 
requirements on a timely basis.
    (C) For requirements for which the source is not in compliance at 
the time of permit issuance, a narrative description of how the source 
will achieve compliance with such requirements.
    (iii) A compliance schedule as follows:
    (A) For applicable requirements with which the source is in 
compliance, a statement that the source will continue to comply with 
such requirements.
    (B) For applicable requirements that will become effective during 
the permit term, a statement that the source will meet such 
requirements on a timely basis. A statement that the source will meet 
in a timely manner applicable requirements that become effective during 
the permit term shall satisfy this provision, unless a more detailed 
schedule is expressly required by the applicable requirement.
    (C) A schedule of compliance for sources that are not in compliance 
with all applicable requirements at the time of permit issuance. Such a 
schedule shall include a schedule of remedial measures, including an 
enforceable sequence of actions with milestones, leading to compliance 
with any applicable requirements for which the source will be in 
noncompliance at the time of permit issuance. This compliance schedule 
shall resemble and be at least as stringent as that contained in any 
judicial consent decree or administrative order to which the source is 
subject. Any such schedule of compliance shall be supplemental to, and 
shall not sanction noncompliance [[Page 20835]] with, the applicable 
requirements on which it is based.
    (iv) A schedule for submission of certified progress reports every 
6 months for sources required to have a schedule of compliance to 
remedy a violation, unless more frequent submittals are required in the 
applicable requirement or by the permitting authority.
    (v) For affected sources applying for part 71 permits, the 
compliance plan content requirements specified in this paragraph (f)(9) 
must be met for all applicable requirements, including the applicable 
requirements of title IV of the Act. For permit applications required 
under the acid rain program, the compliance plan content requirements 
of 40 CFR part 72, subpart D must be met.
    (10) Requirements for compliance certification, including the 
following:
    (i) A certification of compliance with all applicable requirements 
by a responsible official consistent with paragraph (i) of this section 
and section 114(a)(3) of the Act;
    (ii) A statement of methods used for determining compliance, 
including a description of monitoring, recordkeeping, and reporting 
requirements and test methods;
    (iii) A schedule for annual submissions of compliance 
certifications during the permit term, or for more frequent submissions 
if specified by the underlying applicable requirement or by the 
permitting authority; and
    (iv) A statement indicating the source's compliance status with any 
applicable enhanced monitoring and compliance certification 
requirements of the Act.
    (11) The use of nationally-standardized forms for acid rain 
portions of permit applications and compliance plans, as required by 40 
CFR part 72.
    (12) Temporary sources requesting a single permit for multiple 
sites must also provide in the permit application ambient air quality 
standard and increment and visibility analyses as required under part C 
of title I of the Act.
    (g) Insignificant activities and emissions levels. The following 
types of insignificant activities and emissions levels are exempt from 
the requirements of paragraph (f) of this section. Notwithstanding the 
preceding sentence, no activity or emission levels shall be exempt from 
the requirements of paragraph (f) of this section if the information 
omitted from the application is needed to determine the applicability 
of or to impose any applicable requirement, to determine whether a 
source is major, to determine whether a source is subject to the 
requirement to obtain a part 71 permit, or to calculate the fee amount 
required under the schedule established pursuant to Sec. 71.9.
    (1) Insignificant activities. Information concerning the following 
activities need not be provided in the application:
    (i) Mobile sources;
    (ii) Air-conditioning units used for human comfort that do not use 
a class I or class II ozone depleting substance and do not exhaust air 
pollutants into the ambient air from any manufacturing or other 
industrial process;
    (iii) Ventilating units used for human comfort that do not exhaust 
air pollutants into the ambient air from any manufacturing or other 
industrial process;
    (iv) Heating units used for human comfort that do not provide heat 
for any manufacturing or other industrial process;
    (v) Noncommercial food preparation;
    (vi) Consumer use of office equipment and products;
    (vii) Janitorial services and consumer use of janitorial products; 
and
    (viii) Internal combustion engines used for landscaping purposes.
    (2) Insignificant emissions levels. Emissions meeting the criteria 
in paragraph (g)(2)(i) or (g)(2)(ii) of this section need not be 
included in the application consistent with paragraph (f) of this 
section, but must be listed with sufficient detail to identify the 
emission unit and indicate that the exemption applies. Similar emission 
units, including similar capacities or sizes, may be listed under a 
single description, provided the number of emission units is included 
in the description. No additional information is required at time of 
application, but the permitting authority may request additional 
information during application processing.
    (i) Emission criteria for regulated air pollutants, excluding 
hazardous air pollutants (HAP). Potential to emit of regulated air 
pollutants, excluding HAP, for any single emissions unit shall not 
exceed 1 tpy, except in extreme ozone nonattainment areas, where 
potential to emit may not exceed 1,000 pounds (lb) per year. Aggregate 
emissions of any regulated air pollutant, excluding HAP, from all 
emission units shall not exceed potential to emit of 10 tpy, except in 
extreme ozone nonattainment areas, where potential to emit may not 
exceed 5 tpy.
    (ii) Emission criteria for HAP. Potential to emit of any HAP from 
any single emissions unit shall not exceed 1,000 lb per year or the de 
minimis level established under section 112(g) of the Act, whichever is 
less. Aggregate emissions of all HAP from all emission units shall not 
exceed potential to emit of 5 tpy or the de minimis levels established 
under section 112(g) of the Act, whichever is less.
    (h) Application for coverage under a general permit. Part 71 
sources that qualify for a general permit must apply to the permitting 
authority for coverage under the terms of the general permit or must 
apply for a part 71 permit consistent with this section. The permitting 
authority may provide for applications for general permits which 
deviate from the requirements of this section, provided that such 
applications meet the requirements of Title V of the Act, and include 
all information necessary to determine qualification for, and assure 
compliance with, the general permit.
    (i) Certification by a responsible official. 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. 71.6  Permit content.

    (a) Standard permit requirements. Each permit issued under this 
part shall include the following elements:
    (1) Emission limitations and standards, including those operational 
requirements and limitations that assure compliance with all applicable 
requirements at the time of permit issuance.
    (i) The permit shall specify and reference the origin of and 
authority for each term or condition, and identify any difference in 
form as compared to the applicable requirement upon which the term or 
condition is based.
    (ii) The permit shall state that where an applicable requirement of 
the Act is more stringent than an applicable requirement of 40 CFR 
parts 72 through 79, both provisions shall be incorporated into the 
permit and shall be enforceable by the Administrator.
    (iii) If an applicable implementation plan allows a determination 
of an alternative emission limit at a part 71 source, equivalent to 
that contained in the plan, to be made in the permit issuance, renewal, 
or significant permit revision process, and the permitting authority 
elects to use such process, any [[Page 20836]] permit containing such 
equivalency determination shall contain provisions to ensure that any 
resulting emissions limit has been demonstrated to be quantifiable, 
accountable, enforceable, and based on replicable procedures.
    (iv) Emission units and part 71 sources.
    (A) For major sources, the permitting authority shall include in 
the permit all applicable requirements for all relevant emissions units 
in the major source.
    (B) For any nonmajor source subject to the part 71 program, the 
permitting authority shall include in the permit all applicable 
requirements applicable to emissions units that caused the source to be 
subject to the part 71 program.
    (2) Permit duration. The permitting authority shall issue permits 
for a fixed term of 5 years in the case of affected sources, and for a 
term not to exceed 5 years in the case of all other sources. 
Notwithstanding this requirement, the permitting authority shall issue 
permits for solid waste incineration units combusting municipal waste 
subject to standards under section 129(e) of the Act for a period not 
to exceed 12 years and shall review such permits at least every 5 
years. The permit shall state when the source's application for renewal 
must be submitted to the permitting authority consistent with 
Sec. 71.5.
    (3) For affected sources, a permit condition prohibiting any 
affected unit from emitting sulfur dioxide in excess of any allowances 
that the affected unit lawfully holds under title IV of the Act or 40 
CFR parts 72 through 78.
    (i) No permit revision shall be required for increases in emissions 
that are authorized by allowances acquired pursuant to the acid rain 
program, provided that such increases do not require a permit revision 
under any other applicable requirement.
    (ii) No limit shall be placed on the number of allowances held by 
the unit. The unit may not, however, use allowances as a defense to 
noncompliance with any other applicable requirement.
    (iii) Any such allowance shall be accounted for according to the 
procedures established in regulations 40 CFR parts 72 through 78.
    (4) A severability clause to ensure the continued validity of the 
various permit requirements in the event of a challenge to any portion 
of the permit.
    (5) Provisions stating the following:
    (i) The source must comply with all conditions of the part 71 
permit. Any permit noncompliance constitutes a violation of the Act and 
is grounds for enforcement action; for permit termination, revocation 
and reissuance, or modification; or for denial of a permit renewal 
application.
    (ii) Need to halt or reduce activity not a defense. It shall not be 
a defense for a source in an enforcement action that it would have been 
necessary to halt or reduce the permitted activity in order to maintain 
compliance with the conditions of this permit.
    (iii) The permit may be modified, revoked, reopened and reissued, 
or terminated for cause. The filing of a request by the source 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.
    (v) The permittee shall furnish to the permitting authority, within 
a reasonable time, any information that the permitting authority may 
request in writing to determine whether cause exists for revising, 
revoking and reissuing, or terminating the permit or to determine 
compliance with the permit, including copies of records required to be 
kept by the permit. The source may assert a claim of confidentiality 
consistent with section 114(c) of the Act and 40 CFR part 2 with 
respect to any such requested information.
    (vi) A schedule of compliance does not sanction noncompliance with 
the applicable requirement on which it is based.
    (6) A provision to ensure that a part 71 source pays fees to the 
permitting authority consistent with the fee schedule in Sec. 71.9.
    (7) Emissions trading. A provision stating that no permit revision 
shall be required under any economic incentives, marketable permits, 
emissions trading or other similar programs or processes approved in an 
implementation plan or other applicable requirement authorizing such 
changes to be provided for in the permit and where the permit provides 
for such changes.
    (8) Terms and conditions for reasonably anticipated operating 
scenarios identified by the source in its application as approved by 
the permitting authority. Such terms and conditions:
    (i) Shall require the source, contemporaneously with making a 
change from one operating scenario to another, to record in a log at 
the permitted facility a record of the scenario under which it is 
operating. Provided that each of the alternative scenarios available 
for a particular unit is monitored in a way that yields objective, 
contemporaneous measurement and recordation of relevant emissions or 
parameters and that the means of measurement are sufficiently different 
for each of the scenarios that the contemporaneous record reveals the 
scenario under which the source was operating when the record was made, 
no further notice to the permitting authority is required. Otherwise, 
the permit shall require that when any change is made between 
alternative scenarios, the permittee at the beginning of the following 
week shall place in regular mail to the permitting authority notice of 
such change(s) between scenarios, which could consist of a copy of the 
relevant portion of the on-site log indicating the scenario(s) under 
which the source operated during the previous week;
    (ii) May extend the permit shield described in paragraph (f) of 
this section to all terms and conditions under each such operating 
scenario; and
    (iii) Must ensure that the terms and conditions of each such 
alternative scenario meet all applicable requirements and the 
requirements of this part.
    (9) Terms and conditions, if the permit applicant requests them, 
for the trading of emissions increases and decreases in the permitted 
facility, to the extent that the applicable requirements provide for 
trading such increases and decreases without a case-by-case approval of 
any emissions trade. Such terms and conditions:
    (i) Shall include all terms required under paragraphs (a) and (c) 
of this section to ensure compliance;
    (ii) May extend the permit shield described in paragraph (f) of 
this section to all terms and conditions that allow such increases and 
decreases in emissions; and
    (iii) Must meet all applicable requirements and the requirements of 
this part.
    (b) Federally-enforceable requirements. All terms and conditions in 
a part 71 permit, including any provisions designed to limit a source's 
potential to emit, shall be enforceable by the Administrator and 
citizens under the Act.
    (c) Compliance requirements. All part 71 permits shall contain 
testing, monitoring, reporting, recordkeeping and compliance 
certification requirements sufficient to assure compliance with the 
terms and conditions of the permit consistent with the following 
provisions of this section. Any document (including reports) required 
to be submitted by a part 71 permit shall contain a certification by a 
[[Page 20837]] responsible official that meets the requirements of 
Sec. 71.5(i).
    (d) Monitoring requirements. Each permit shall contain the 
following requirements with respect to monitoring:
    (1) All emissions monitoring and analysis procedures or test 
methods required under the applicable requirements, including any 
procedures and methods promulgated pursuant to sections 114(a)(3) or 
504(b) of the Act;
    (2) Where the applicable requirement does not require periodic 
testing or instrumental or noninstrumental monitoring (which may 
consist of recordkeeping designed to serve as monitoring), periodic 
monitoring sufficient to yield reliable data from the relevant time 
period that are representative of the source's compliance with the 
permit, as reported pursuant to paragraph (f) of this section. Such 
monitoring requirements shall assure use of terms, test methods, units, 
averaging periods, and other statistical conventions consistent with 
the applicable requirement. Recordkeeping provisions may be sufficient 
to meet the requirements of this paragraph (d)(2); and
    (3) As necessary, requirements concerning the use, maintenance, 
and, where appropriate, installation of monitoring equipment or 
methods.
    (e) Recordkeeping requirements. Each permit shall contain the 
following requirements with respect to recordkeeping:
    (1) All applicable recordkeeping requirements;
    (2) Where applicable, a requirement to maintain records of required 
monitoring information that include the following:
    (i) The date, place as defined in the permit, and time of sampling 
or measurements;
    (ii) The date(s) analyses were performed;
    (iii) The company or entity that performed the analyses;
    (iv) The analytical techniques or methods used;
    (v) The results of such analyses; and
    (vi) The operating conditions as existing at the time of sampling 
or measurement; and
    (3) 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.
    (f) Reporting and notification requirements. Each permit shall 
contain the following requirements with respect to reporting and 
notification:
    (1) All applicable reporting requirements.
    (2) Submittal of reports of any required monitoring at least every 
6 months or more frequently if required by the applicable requirement 
or by the permitting authority. All instance of deviations from permit 
requirements must be clearly identified in such reports. All required 
reports must be certified by a responsible official consistent with 
Sec. 71.5(i).
    (3) Prompt reporting of deviations from permit requirements, 
including those attributable to upset conditions as defined in the 
permit, the probable cause of such deviations, and any corrective 
actions or preventive measures taken. Where the underlying applicable 
requirement contains a definition of prompt or otherwise specifies a 
time frame for reporting deviations, that definition or time frame 
shall govern. Where the underlying applicable requirement fails to 
address the time frame for reporting deviations, reports of deviations 
shall be submitted to the permitting authority based on the following 
schedule:
    (i) For emissions of a hazardous air pollutant or a toxic air 
pollutant (as identified in an applicable regulation) that continue for 
more than an hour in excess of permit requirements, the report must be 
made with 24 hours of the occurrence.
    (ii) For emissions of any regulated air pollutant, excluding those 
listed in paragraph (f)(3)(i) of this section, that continue for more 
than two hours in excess of permit requirements, the report must be 
made within 48 hours.
    (iii) A permit may contain a more stringent reporting requirement 
than required by paragraphs (f)(3)(i) and (ii) of this section.
    (A) If any of the above conditions are met, the source must notify 
the permitting authority by telephone or facsimile based on the 
timetable listed in paragraphs (f)(3)(i) through (iii) of this section. 
A written notice, certified consistent with Sec. 71.5(i), must be 
submitted within 10 working days of the occurrence.
    (B) All deviations reported under paragraph (f)(3) of this section 
must also be identified in the 6 month report required under paragraph 
(f)(2) of this section.
    (4) For purposes of paragraph (f)(3) of this section, deviation 
means any condition determined by observation, data from an enhanced 
monitoring protocol, any other monitoring protocol, or any other 
monitoring which is required by the permit that can be used to 
determine compliance, that identifies that an emission unit subject to 
a part 71 permit term or condition has failed to meet an applicable 
emission limitation or standard or that a work practice was not 
complied with or completed. For a condition lasting more than 24 hours 
which constitutes a deviation, each 24 hour period is considered a 
separate deviation. Included in the meaning of deviation are any of the 
following:
    (i) A condition where emissions exceed an emission limitation or 
standard;
    (ii) A condition where process or control device parameter values 
demonstrate that an emission limitation or standard has not been met;
    (iii) Any other condition in which observations or data collected 
demonstrates noncompliance with an emission limitation or standard or 
any work practice or operating condition required by the permit.
    (g) Compliance certification requirements. Each permit shall 
contain the following requirements with respect to compliance 
certifications with the terms and conditions contained in the permit, 
including emission limitations, standards, or work practices:
    (1) The frequency (not less than annually or more frequently if 
specified in the applicable requirement or by the permitting authority) 
of submissions of compliance certifications;
    (2) In accordance with paragraph (d) of this section, a means for 
monitoring the compliance of the source with its emissions limitations, 
standards, and work practices;
    (3) A requirement that the compliance certification includes the 
following:
    (i) The identification of each term or condition of the permit that 
is the basis of the certification;
    (ii) The compliance status;
    (iii) Whether compliance was continuous or intermittent;
    (iv) The method(s) used for determining the compliance status of 
the source, currently and over the reporting period consistent with 
paragraph (d) of this section;
    (v) Such other facts as the permitting authority may require to 
determine the compliance status of the source; and
    (vi) A requirement that all compliance certifications be submitted 
to the permitting authority.
    (4) Such additional requirements as may be specified pursuant to 
sections 114(a)(3) and 504(b) of the Act.
    (h) Inspection and entry requirements. Each permit shall contain 
inspection and entry requirements that require that, 
[[Page 20838]] upon presentation of credentials and other documents as 
may be required by law, the permittee shall allow the permitting 
authority or an authorized representative to perform the following:
    (1) Enter upon the permittee's premises where a part 71 source is 
located or emissions-related activity is conducted, or where records 
must be kept under the conditions of the permit;
    (2) Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of the permit;
    (3) Inspect at reasonable times any facilities, equipment 
(including monitoring and air pollution control equipment), practices, 
or operations regulated or required under the permit; and
    (4) As authorized by the Act, sample or monitor at reasonable times 
substances or parameters for the purpose of assuring compliance with 
the permit or applicable requirements.
    (i) Compliance schedule. Each permit shall contain a schedule of 
compliance consistent with Sec. 71.5(f)(9).
    (j) Progress reports. Each permit shall contain a requirement that 
the permittee submit progress reports consistent with an applicable 
schedule of compliance and Sec. 71.5(f)(9) to be submitted at least 
semiannually, or more frequently if required by the applicable 
requirement or by the permitting authority. Such progress reports shall 
contain the following:
    (1) Dates for achieving the activities, milestones, or compliance 
required in the schedule of compliance, and dates when such activities, 
milestones or compliance were achieved; and
    (2) An explanation of why any dates in the schedule of compliance 
were not or will not be met, and any preventive or corrective measures 
adopted.
    (k) Other provisions. Each permit shall contain such other 
provisions as the permitting authority may require.
    (l) General permits.
    (1) The permitting authority may, after notice and opportunity for 
public participation provided under Sec. 71.11, issue a general permit 
covering numerous similar sources. Any general permit shall comply with 
all requirements applicable to other part 71 permits and shall identify 
criteria by which sources may qualify for the general permit. To 
sources that qualify, the permitting authority shall grant the terms 
and conditions of the general permit. Notwithstanding the shield 
provisions of paragraph (n) of this section, the source shall be 
subject to enforcement action for operation without a part 71 permit if 
the source is later determined not to qualify for the conditions and 
terms of the general permit. General permits shall not be authorized 
for affected sources under the acid rain program unless otherwise 
provided in regulations promulgated under title IV of the Act (40 CFR 
part 72).
    (2) Without repeating the public participation procedures required 
under Sec. 71.11, the permitting authority may grant a source's request 
for authorization to operate under a general permit, and such a grant 
shall be a final permit action for purposes of judicial review.
    (3) The permitting authority shall provide timely notice to the 
public of any authorization given to a source to operate under the 
terms of a general permit. Such notice may be made on a monthly, 
summarized basis covering all sources receiving authorization since the 
time of the last notice.
    (m) Temporary sources. The permitting authority may issue a single 
permit authorizing emissions from similar operations by the same source 
owner or operator at multiple temporary locations. The operation must 
be temporary and involve at least one change of location during the 
term of the permit. No affected source shall be permitted as a 
temporary source. Permits for temporary sources shall contain all of 
the terms and conditions required by this section as well as the 
following terms and conditions:
    (1) Conditions that will assure compliance with all applicable 
requirements at all authorized locations;
    (2) Requirements that the owner or operator notify the permitting 
authority at least 10 days in advance of each change in location; and
    (3) Conditions that assure compliance with all other provisions of 
this section.
    (n) Permit shield.
    (1) Except as provided in this part, the permitting authority may 
expressly include in a part 71 permit a provision stating that 
compliance with the terms and conditions of the permit shall be deemed 
compliance with any applicable requirements as of the date of permit 
issuance, provided that:
    (i) Such applicable requirements are included and are specifically 
identified in the permit; or
    (ii) The permitting authority, in acting on the permit application 
or revision, determines in writing that other requirements specifically 
identified are not applicable to the source, and the permit includes 
the determination or a concise summary thereof.
    (2) A part 71 permit that does not expressly state that a permit 
shield exists shall be presumed not to provide such a shield.
    (3) Nothing in this paragraph (n) or in any part 71 permit shall 
alter or affect the following:
    (i) The provisions of sections 112(r)(9) and 303 of the Act 
(emergency orders), including the authority of the Administrator under 
those sections;
    (ii) The liability of an owner or operator of a source for any 
violation of applicable requirements prior to or at the time of permit 
issuance;
    (iii) The applicable requirements of the acid rain program, 
consistent with section 408(a) of the Act; or
    (iv) The ability of EPA to obtain information from a source 
pursuant to section 114 of the Act.
    (o) Emergency provision.
    (1) Definition. An ``emergency'' means any situation arising from 
sudden and reasonably unforeseeable events beyond the control of the 
source, including acts of God, which situation requires immediate 
corrective action to restore normal operation, and that causes the 
source to exceed a technology-based emission limitation under the 
permit, due to unavoidable increases in emissions attributable to the 
emergency. An emergency shall not include noncompliance to the extent 
caused by improperly designed equipment, lack of preventative 
maintenance, careless or improper operation, or operator error.
    (2) Effect of an emergency. An emergency constitutes an affirmative 
defense to an action brought for noncompliance with such technology-
based emission limitations if the conditions of paragraph (o)(3) of 
this section are met.
    (3) The affirmative defense of emergency shall be demonstrated 
through properly signed, contemporaneous operating logs, or other 
relevant evidence that:
    (i) An emergency occurred and that the permittee can identify the 
cause(s) of the emergency;
    (ii) The permitted facility was at the time being properly 
operated;
    (iii) During the period of the emergency the permittee took all 
reasonable steps to minimize levels of emissions that exceeded the 
emission standards, or other requirements in the permit; and
    (iv) The permittee submitted notice of the emergency to the 
permitting authority within 2 working days of the time when emission 
limitations were exceeded due to the emergency. This notice fulfills 
the requirement of paragraph (f)(3) 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 [[Page 20839]] occurrence of an emergency has the burden 
of proof.
    (5) This provision is in addition to any emergency or upset 
provision contained in any applicable requirement.
    (p) Operational flexibility. A permitted facility may make changes 
without requiring a permit revision, if the changes are not 
modifications under any provision of title I of the Act and the changes 
do not exceed the emissions allowable under the permit (whether 
expressed therein as a rate of emissions or in terms of total 
emissions), provided that the facility provides the permitting 
authority with written notification as required below in advance of the 
proposed changes, which shall be a minimum of 7 days. The source and 
the permitting authority shall attach each such notice to their copy of 
the relevant permit.
    (1) Trading under permitted emissions cap. The permitting authority 
shall include in a permit an emissions cap, pursuant to a request 
submitted by the applicant, consistent with any specific emission 
limits or restrictions otherwise required in the permit by any 
applicable requirements, and permit terms and conditions for emissions 
trading solely for the purposes of complying with that cap, provided 
that the permitting authority finds that the request contains adequate 
terms and conditions, including all terms required under Sec. 71.6, to 
determine compliance with the cap and with any emissions trading 
provisions. The permit shall also contain terms and conditions to 
assure compliance with all applicable requirements. The permit 
applicant shall include in its application proposed replicable 
procedures and permit terms that ensure the emissions cap is 
enforceable and trades pursuant to it are quantifiable and enforceable. 
Any permit terms and conditions establishing such a cap or allowing 
such trading may be established or changed only in a full permit 
issuance, renewal, or significant permit revision procedures. The 
permitting authority shall not be required to include in the cap or 
emissions trading provisions any emissions unit where the permitting 
authority determines that the emissions are not quantifiable or where 
it determines that there are no replicable procedures or practical 
means to enforce the emissions trades.
    (i) Under this paragraph (p)(1) of this section, the written 
notification required above shall state when the change will occur and 
shall describe the changes in emissions that will result and how these 
increases and decreases in emissions will comply with the terms and 
conditions of the permit.
    (ii) The permit shield described in Sec. 71.6(n) may extend to 
terms and conditions that allow such increases and decreases in 
emissions.
    (2) Trading under the implementation plan. Permitted sources may 
trade increases and decreases in emissions in the permitted facility, 
where the applicable implementation plan provides for such emissions 
trades without requiring a permit revision and based on the 7-day 
notice prescribed in paragraph (p) of this section. This provision is 
available in those cases where the permit does not already provide for 
such emissions trading provided the permit identifies which permit 
terms may be replaced with the emission trading provisions in the 
implementation plan.
    (i) Under paragraph (p)(2) of this section, the written 
notification required above shall include such information as may be 
required by the provision in the applicable implementation plan 
authorizing the emissions trade, including at a minimum, when the 
proposed change will occur, a description of each such change, any 
change in emissions, the permit requirements with which the source will 
comply using the emissions trading provisions of the applicable 
implementation plan, and the pollutants emitted subject to the 
emissions trade. The notice shall also refer to the provisions with 
which the source will comply in the applicable implementation plan and 
that provide for the emissions trade.
    (ii) The permit shield described in Sec. 71.6(n) shall not extend 
to any change made under paragraph (p) of this section. Compliance with 
the permit terms that the source will meet using the emissions trade 
shall be determined according to requirements of the applicable 
implementation plan authorizing the emissions trade.
    (q) The permitting authority may allow permittees, without first 
applying for a permit revision, to make changes that do not result in 
the source being in violation of any permit term or condition but 
render the source subject to an applicable requirement to which the 
source was not previously subject, provided the requirements of 
paragraphs (q)(1) through (8) of this section are met.
    (1) Each change shall:
    (i) Meet all applicable requirements and shall not violate or 
result in the violation of any existing permit term or condition; and
    (ii) Not result in a net increase in the allowable emissions of any 
regulated pollutant at the source.
    (2) The change may not be subject to the requirements of title IV 
of the Act.
    (3) Sources must provide contemporaneous written notice to the 
permitting authority of each such change. Such written notice shall 
describe each such change, the date of the change, any change in 
emissions, pollutants emitted, and the applicable requirement to which 
the source becomes subject as a result of the change.
    (4) The change shall not be eligible for the permit shield under 
Sec. 71.6(n) until such time as a permit shield may be granted in a 
subsequent permit revision consistent with the provisions of 
Secs. 71.7(g) or 71.11.
    (5) The permittee shall keep a record describing changes made under 
this paragraph (q).
    (6) The permittee shall apply for a permit revision by the deadline 
set forth in Sec. 71.5(b)(2), except that if the deadline would occur 
after the date on which a renewal application is due, the permitting 
authority may allow the permittee to incorporate the permit revision 
request in its renewal application.
    (7) The permit shall be revised under the relevant procedures of 
Sec. 71.7(e), (f), (g), or Sec. 71.11 for which the change is eligible, 
except that, notwithstanding provisions in those sections, if the 
change is subsequently processed under minor permit revision or 
significant permit revision procedures, and the permitting authority or 
EPA (in the case of a program delegated pursuant to Sec. 71.10) 
determines that the change was ineligible under this paragraph (q), 
then the source shall be liable from the date the change was made for 
failure to have applied for a permit revision before the change was 
made as required under Sec. 71.7.
    (8) If eligible for the minor permit revision procedures of 
Sec. 71.7(g), the following provisions shall apply to changes made 
under this paragraph (q):
    (i) The public notice required under Sec. 71.7(g)(3)(ii) shall 
state that if no germane and non-frivolous objection is received within 
21 days of application, the permitting authority may consider that the 
change was eligible for processing under this paragraph (q) without 
further opportunity for public objection. In addition to the provisions 
of Sec. 71.7(g)(3)(ii) a germane objection is one that objects to the 
change on the grounds that the source was ineligible under this 
paragraph (q). [[Page 20840]] 
    (ii) The provisions of Secs. 71.7(g)(5)(i) and (ii) prohibiting the 
source from making the change do not apply.
    (iii) Notwithstanding the provisions of Sec. 71.7(g)(7), the source 
must comply with all applicable requirements from the date the change 
was made.


Sec. 71.7   Permit review, issuance, renewal, reopenings, and 
revisions.

    (a) Action on application.
    (1) A permit, permit revision, or renewal may be issued only if all 
of the following conditions have been met:
    (i) The permitting authority has received a complete application 
for a permit, permit revision, or permit renewal, except that a 
complete application need not be received before issuance of a general 
permit under Sec. 71.6(l);
    (ii) The permitting authority has complied with the applicable 
requirements for public participation under this section or Sec. 71.11, 
if applicable;
    (iii) The permitting authority has complied with the requirements 
for notifying and responding to affected States under Sec. 71.8(a);
    (iv) Except as provided in paragraph (a)(6) of this section, the 
conditions of the permit provide for compliance with all applicable 
requirements and the requirements of this part; and
    (v) In the case of a program delegated pursuant to Sec. 71.10, 
except for revisions qualifying for de minimis permit revision 
procedures under paragraph (f) of this section or for administrative 
amendment procedures under paragraphs (e)(1)(i) through (iv) of this 
section, the Administrator has received a copy of the proposed permit 
and any notice required under Sec. 71.10(d) and has not objected to the 
issuance of the permit under Sec. 71.10(g) within the time period 
specified therein.
    (2) Except as provided under the initial transition plan provided 
under Sec. 71.4(i) or under 40 CFR part 72 or title V of the Act for 
the permitting of affected sources under the acid rain program, the 
permitting authority shall take final action on each permit application 
(including a request for permit revision or renewal) within 18 months 
after receiving a complete application. Notwithstanding the preceding 
sentence, the permitting authority shall take final action within 12 
months after receipt of a complete application containing an early 
reduction demonstration under section 112(i)(5) of the Act and 
regulations promulgated thereunder, and within the time period 
specified under paragraph (g)(5)(v) of this section for a minor permit 
revision. Final action may be delayed where an applicant fails to 
provide additional information in a timely manner as requested by the 
permitting authority under Sec. 71.5(c) .
    (3) The permitting authority shall promptly provide notice to the 
applicant of whether the application is complete. Unless the permitting 
authority requests additional information or otherwise notifies the 
applicant of incompleteness within 60 days of receipt of an 
application, the application shall be deemed complete. Notwithstanding 
the above, for revisions that qualify for and are processed through the 
procedures of paragraph (e), (f), or (g) of this section, the 
permitting authority need not undertake a completeness determination 
before commencing revision procedures.
    (4) The permitting authority shall provide a statement that sets 
forth the legal and factual basis for the draft permit conditions 
(including references to the applicable statutory or regulatory 
provisions). The permitting authority shall send this statement to any 
person who requests it, and to EPA, in the case of a program delegated 
pursuant to Sec. 71.10.
    (5) The submittal of a complete application shall not affect the 
requirement that any source have a preconstruction permit under title I 
of the Act.
    (6) Any new applicable requirement approved or promulgated by EPA 
that becomes applicable to a source prior to issuance of a draft permit 
(whether during issuance or renewal) shall be included in the draft 
permit. If any new applicable requirement becomes applicable after 
issuance of a draft permit, and the requirement is not reflected in the 
draft permit, the permit may be issued without incorporating the new 
applicable requirement, provided that the permitting authority 
institutes proceedings no later than the date of permit issuance to 
reopen the permit consistent with paragraph (i) of this section to 
incorporate the new applicable requirement and that the permit contains 
a statement that it is being reopened for this purpose.
    (b) Requirement to apply for a permit. Except as provided in this 
paragraph and paragraphs (e), (f), and (g) of this section, no part 70 
or part 71 source may operate after the time that it is required to 
submit a timely and complete application under an approved permit 
program or this part, except in compliance with a permit issued under a 
part 70 program or this part. If a part 70 or part 71 source submits a 
timely and complete application for permit issuance (including for 
renewal), the source's failure to have a part 71 permit is not a 
violation of this part until the permitting authority takes final 
action on the permit application, except as noted in this section. This 
protection shall cease to apply if, subsequent to the completeness 
determination made pursuant to paragraph (a)(3) of this section, and as 
required by Sec. 71.5(c), the applicant fails to submit by the deadline 
specified in writing by the permitting authority any additional 
information identified as being needed to process the application.
    (c) Permit renewal and expiration.
    (1) Permits being renewed are subject to the same procedural 
requirements that apply to initial permit issuance, including those for 
public participation, affected State review, and EPA review, in the 
case of a program delegated pursuant to Sec. 71.10.
    (2) Permit expiration terminates the source's right to operate 
unless a timely and complete renewal application has been submitted 
consistent with paragraph (b) of this section and Secs. 71.5(b) and 
71.5(c).
    (3) If a timely and complete application for a permit renewal is 
submitted by the permittee consistent with Secs. 71.5(b) and 71.5(c), 
but the permitting authority has failed to issue or deny the renewal 
permit before the end of the term of the previous part 70 or part 71 
permit, then all the terms and conditions of the permit, including any 
permit shield, shall remain in effect until the permitting authority 
issues or denies the renewal permit. In the case of a program delegated 
pursuant to Sec. 71.10, EPA may invoke its authority under section 
505(e) of the Act to terminate or revoke and reissue the permit.
    (d) Permit revisions. Changes requiring revision of a part 70 or 
part 71 permit are those that could not be operated without violating 
an existing permit term or rendering the source subject to an 
applicable requirement to which the source has not been previously 
subject. A permit revision for purposes of the acid rain portion of the 
permit shall be governed by 40 CFR part 72.
    (e) Administrative permit amendments.
    (1) An ``administrative permit amendment'' is a permit revision 
that:
    (i) Corrects typographical errors;
    (ii) Identifies a change in the name, address, or phone number of 
any person identified in the permit, or provides a similar minor 
administrative change;
    (iii) Requires more frequent testing, monitoring, recordkeeping, or 
reporting;
    (iv) Allows for a change in ownership or operational control of a 
source where [[Page 20841]] the permitting authority determines that no 
other change in the permit is necessary, provided that a written 
agreement containing a specific date for transfer of permit 
responsibility, coverage, and liability between the current and new 
permittee has been submitted to the permitting authority;
    (v) In the case of a program delegated pursuant to Sec. 71.10, 
incorporates the requirements of a minor new source review (NSR) or 
major NSR preconstruction permit or decision or a determination under 
section 112(g) of the Act, provided that such permit or determination 
was issued in accordance with the procedural requirements of paragraph 
(e)(4) of this section and contains compliance requirements 
substantially equivalent to those required under Sec. 71.6.
    (vi) Notwithstanding the provisions of paragraph (e)(1)(v) of this 
section, incorporates a standard promulgated after permit issuance 
pursuant to section 112 of the Act.
    (2) Administrative permit amendments for purposes of the acid rain 
portion of the permit shall be governed by 40 CFR part 72.
    (3) Administrative permit amendment procedures for changes meeting 
the criteria under Sec. 71.7(e)(1)(i) through (iv). Changes meeting the 
criteria set forth in paragraphs (e)(1)(i) through (iv) of this section 
may be made to a permit using the following procedures:
    (i) The source shall submit to the permitting authority an 
application containing a proposed addendum to the source's part 70 or 
part 71 permit. The application shall demonstrate how the proposed 
change meets one of the criteria for administrative amendments set 
forth in paragraphs (e)(1)(i) through (iv) of this section, and include 
certification by the responsible official consistent with Sec. 71.5(i) 
that the change is eligible for administrative amendment procedures. 
The addendum shall:
    (A) Identify the terms of the existing part 70 or part 71 permit 
that it proposes to change;
    (B) Propose new permit terms consistent with the provisions of this 
part applicable to the change;
    (C) Designate the addendum as having been processed under the 
procedures of this paragraph (e)(3); and
    (D) Specify that the addendum will be effective 60 days from the 
date of permitting authority receipt unless the permitting authority 
disapproves the change within such period.
    (ii) The permitting authority may allow the source to implement the 
requested change immediately upon making all required submittals, 
including the proposed addendum.
    (iii) The proposed addendum will become effective 60 days after the 
permitting authority receives the submittal, provided the permitting 
authority has not disapproved the request in writing before the end of 
the 60-day period. The permitting authority shall record the change by 
attaching a copy of the addendum to the existing part 70 or part 71 
permit and, in the case of a program delegated pursuant to Sec. 71.10, 
shall provide the Administrator with a copy of the addendum.
    (iv) If the permitting authority disapproves the change, it shall 
notify the source of its reasons for disapproving the change in a 
timely manner. Upon receiving such notice, the source shall comply with 
the terms of the permit that it had proposed to change, and thereafter 
the proposed addendum shall not take effect. The permitting authority 
may approve a permit addendum for an administrative permit amendment 
that varies from the source's application without rendering the source 
liable for violating its existing permit if the permitting authority's 
revisions are not necessary to make the request eligible for 
administrative amendment procedures and do not change the applicant's 
proposed determination of which applicable requirements of the Act 
apply to the source as a result of the requested change and if the 
source demonstrates to the satisfaction of the permitting authority its 
compliance with the applicable requirement to which it is subject as a 
result of the change. However, the source would remain liable for any 
violations of the requirements which are applicable as a result of the 
change and the source's proposed permit revision.
    (v) The process in paragraph (e)(3) of this section may also be 
used for changes initiated by the permitting authority that meet the 
criteria under paragraphs (e)(1)(i), (ii), and (iv) of this section. 
For such changes, the permitting authority shall notify the source of 
the proposed change and its effective date, and shall attach a copy of 
the change to the existing permit. On the effective date of the 
proposed change, the source shall comply with the provisions of the 
proposed change.
    (vi) The permit shield under Sec. 71.6(n) may not extend to 
administrative amendments processed under paragraph (e)(3) of this 
section.
    (4) Administrative amendment procedures for changes meeting the 
criteria under Sec. 71.7(e)(1)(v). In the case of a program delegated 
pursuant to Sec. 71.10, a change meeting the criteria of paragraph 
(e)(1)(v) of this section may be made to a permit using the procedures 
in the following paragraphs (e)(4) (i) through (iv) of this section.
    (i) An applicant shall submit prior to construction (including 
modification), a permit application to the permitting authority meeting 
the requirements for applications of minor NSR, major NSR, 
determinations under section 112(g) of the Act, and paragraph (e)(3)(i) 
of this section. The application must:
    (A) Specify draft permit terms governing construction of any 
proposed new or modified emissions unit or combination thereof, 
including all applicable requirements;
    (B) Inform the permitting authority that the source is requesting 
to revise the part 70 or part 71 permit using the process under this 
paragraph (e)(4);
    (C) Include a proposed addendum to the part 70 or part 71 permit 
that identifies the terms of the existing part 70 or part 71 permit 
that will change and the draft terms and conditions which will govern 
operation of the new or modified unit consistent with part 71 
(including compliance requirements consistent with Sec. 71.6 ) and any 
notice requirements contained in paragraph (e)(4)(ii) of this section, 
and that incorporates relevant terms and conditions from the proposed 
minor NSR or major NSR or action under section 112(g) of the Act; and
    (D) Include an affidavit signed by a responsible official stating 
that the source accepts all liability of making the requested change 
prior to final permitting authority action to revise the source's 
permit.
    (ii) For any minor NSR or major NSR or action under section 112(g) 
of the Act and part 71 permit addendum proposed for approval under 
paragraph (e)(4) of this section, the permitting authority shall:
    (A) Provide a comment period for the public and affected States 
prior to construction of the change of at least 30 days or, in the case 
of minor NSR, as many days as required by the applicable implementation 
plan approved as of November 15, 1993, but not less than 15 days. Where 
a minor NSR action includes a netting transaction involving either a 
single emissions increase above applicable title I modification 
significance levels or a sum of increases above applicable major source 
thresholds, a public comment period of at least 30 days must be 
provided for a change to qualify for processing under this paragraph 
(e)(4);
    (B) Provide notice and a copy of the application filed pursuant to 
paragraph (e)(4)(i) of this section to EPA by the beginning of the 
public comment period; [[Page 20842]] 
    (C) Issue a minor NSR or major NSR permit or determination or issue 
a determination under section 112(g) of the Act and an addendum to the 
part 70 or part 71 permit for the operation of the change if it 
determines the requirements of the applicable minor NSR, major NSR, or 
review program under section 112(g) of the Act and part 71 have been 
met; and
    (D) Provide an opportunity for EPA objection consistent with the 
provisions of Sec. 71.10(g), starting either upon receipt of the notice 
described under paragraph (e)(4)(ii)(D)(1) or (2) of this section as 
applicable or from the date the permitting authority made its final 
minor NSR, major NSR, or determination under section 112(g) of the Act, 
whichever is later.
    (1) For changes approved by the permitting authority under major 
NSR or review under section 112(g) of the Act, the source shall provide 
a notice to EPA and the permitting authority which must be postmarked 
at least 21 days before the anticipated date of initial startup of the 
new or modified source. For such changes, the source may commence 
operation at the end of the 21-day period unless EPA objects in writing 
to the proposed change within the 21-day period. Upon notification of 
such objection, the source may not operate such a change and must 
comply with the terms and conditions of the permit that it sought to 
change.
    (2) For changes approved by the permitting authority under minor 
NSR, the source shall notify EPA and the permitting authority of the 
anticipated date for startup of the change. The source may commence 
operation of such a change upon postmark of such notice.
    (iii) The proposed part 71 permit addendum may become effective 45 
days after EPA receives notice under paragraph (e)(4)(ii)(D) of this 
section or 45 days from the date the permitting authority makes its 
final preconstruction determination, whichever is later, provided that 
by the end of such period EPA has not objected to the change.
    (iv) If EPA objects to the change, EPA shall notify the permitting 
authority and the source of its reasons for objecting to the change. 
Upon receiving such notice, the source shall comply with the terms of 
the permit that it had proposed to change, and thereafter the proposed 
addendum shall not take effect. If, subsequent to source implementation 
of the requested change, EPA objects to the change, the source shall be 
liable for having operated in violation of its existing permit from the 
time it implemented the change. Notwithstanding the preceding sentence, 
the permitting authority may revise a proposed addendum making an 
administrative permit amendment in response to an EPA objection without 
rendering the source liable for violating its existing permit if the 
permitting authority's revisions are not necessary to make the change 
eligible for administrative amendment procedures and do not change the 
applicant's proposed determination of which applicable requirements 
apply to the source as a result of the requested change and if the 
source demonstrates to the satisfaction of the permitting authority its 
compliance with the applicable requirement to which it is subject as a 
result of the change and the source's proposed permit revision. 
However, the source would remain liable for any violations of the 
requirements which are applicable as a result of the change and the 
source's proposed permit revision.
    (v) The permitting authority may provide a permit shield consistent 
with the provisions of Sec. 71.6(n) .
    (5) Administrative permit amendment procedures for changes meeting 
the criteria under Sec. 71.7(e)(1)(vi). Changes meeting the criteria 
set forth in paragraph (e)(1)(vi) of this section may be made to a 
permit using the following procedures:
    (i) After receipt of the initial notification required under the 
standard under section 112 of the Act, the permitting authority shall 
prepare a proposed addendum to the source's part 70 or part 71 permit. 
The addendum shall contain the following:
    (A) A statement that the standard under section 112 of the Act is 
an applicable requirement for the permitted source;
    (B) A schedule of compliance, consistent with Sec. 71.5;
    (C) A requirement to submit any implementation plan or report 
required under the standard;
    (D) A requirement to apply for a minor permit revision by the 
deadline for the compliance statement, unless the source is exempted 
from this requirement by the rulemaking promulgating the applicable 
standard under section 112 of the Act. If the source is utilizing an 
alternative requiring case-by-case approval, such as emissions 
averaging, the source shall apply for a significant permit revision in 
lieu of the minor permit revision required in the preceding sentence. 
If the compliance statement deadline is within 6 months of the end of 
the permit term, the source may incorporate its application for the 
revisions into its application for permit renewal, in lieu of applying 
for revisions by the compliance statement deadline;
    (E) Any other provisions required to be incorporated into the 
permit by the applicable standard under section 112 of the Act.
    (ii) The permitting authority shall make available for public 
review and comment for at least 30 days a list of sources whose permits 
are reopened under this paragraph (e)(5). Notice of the availability of 
the list shall be given by such time as to assure that any additional 
administrative amendments for sources subject to the standard and not 
on the list take effect within 18 months after publication of the 
standard under section 112 of the Act. If after considering public 
comment, the permitting authority determines that permits for other 
sources must be reopened to incorporate standards under section 112(g) 
of the Act, it shall notify such sources of its intent to do so at 
least 30 days before reopening the permit, and may use the provisions 
of this paragraph (e)(5).
    (iii) The proposed addendum shall become effective not later than 
18 months after publication of the standard under section 112 of the 
Act. The permitting authority shall attach a copy of the addendum to 
the existing part 70 or part 71 permit and shall, in the case of a 
program delegated pursuant to Sec. 71.10, provide the Administrator 
with a copy.
    (iv) The permitting authority shall, as soon as practicable, place 
all information required to be submitted by the permit with respect to 
the standard under section 112 of the Act in a docket accessible to the 
public.
    (v) The permit shield under Sec. 71.6(n) may not extend to 
administrative amendments processed under paragraph (e)(5) of this 
section.
    (f) De minimis permit revisions.
    (1) A de minimis permit revision may be made by the permitting 
authority to a part 70 or part 71 permit provided that the permit 
contains a term or condition authorizing the source to make use of de 
minimis permit revision procedures for qualifying changes at the 
applicable unit and such term or condition was established during 
permit issuance or renewal, or under permit revision procedures 
contained in Sec. 71.11, and provided the action taken meets the 
criteria and procedures specified in paragraph (f) of this section.
    (2) Criteria. For the change to be considered de minimis and 
eligible for de minimis permit revision procedures, the conditions in 
paragraph (f)(2)(i) of this section and the applicable conditions and 
limits in paragraphs (f)(2) (ii) and (iii) of this section must be 
[[Page 20843]] met. The limits in paragraphs (f)(2) (ii) and (iii) of 
this section are on a single pollutant basis except where a combination 
of hazardous air pollutants is indicated.
    (i) Conditions limiting de minimis changes.
    (A) The source must not be in violation of the part 70 or part 71 
permit terms and conditions it seeks to change.
    (B) In the case of existing units, the need for a permit revision 
must result from a physical or operational change. [OPTION: ADD TO END 
OF SENTENCE: unless the permit revision solely involves monitoring or 
recordkeeping requirements.]
    (C) [OPTION: ADD TO BEGINNING OF SENTENCE: Except for permit 
revisions solely involving monitoring or recordkeeping requirements,] 
The change may not involve a permit term or condition established to 
limit emissions which is federally enforceable only as a part 70 or 
part 71 permit term or condition.
    (D) De minimis emission threshold levels cannot be met by 
offsetting emission increases with emission decreases at the same 
source.
    [OPTION: ADD NEW PARAGRAPHS (f)(2)(i) (E) and (F):
    (E) The change may not involve a change to monitoring or 
recordkeeping requirements unless, prior to the source's submission of 
a de minimis permit revision application, the permitting authority 
affirmatively determines that the monitoring or recordkeeping change 
has been demonstrated by the source:
    (1) To not affect the capability of the method to measure emission 
results as precisely, accurately, and timely as is provided by the 
existing monitoring or recordkeeping method;
    (2) To only affect a single source or facility; and
    (3) To not constitute a new or alternative monitoring method or 
represent a new operating level of the method.
    (F) The criteria for all demonstrations required under paragraph 
(f)(2)(i)(E) of this section shall include, in addition to the 
requirements of paragraph (f)(3)(C) of this section, an analysis 
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(c) utilizing 
appendices A, B, C, and D of 40 CFR part 64. [END OF OPTION]
    (ii) Unit-based change limits. For a change at any emissions unit 
to qualify as a unit-based de minimis permit revision, the total 
emissions of an entirely new unit and the total emissions at an 
existing unit after the change (i.e., the sum of the existing emissions 
before the change plus the emissions increase that results from the 
change) may not exceed:
    [ALTERNATIVE 1 FOR paragraph (f)(2)(ii)(A):]
    (A) For criteria pollutants, the following emissions over the life 
of the permit:
    (1) 4 tons of CO;
    (2) 1 ton of NOX;
    (3) 1.6 tons of SO2;
    (4) 0.6 ton of PM-10;
    (5) 1 ton of VOC.
    [ALTERNATIVE 2 to paragraph (f)(2)(ii)(A):]
    (A) For criteria pollutants, 20 percent of the applicable major 
source threshold, or 5 tpy of VOC or NOX, whichever is greater, 
but in no event more than 15 tpy PM-10 or 0.6 tpy lead.
    [ALTERNATIVE 3 to paragraph (f)(2)(ii)(A):]
    (A) For criteria pollutants, 5 tpy.
    [ALTERNATIVE 4 to paragraph (f)(2)(ii)(A):]
    (A) For criteria pollutants, 30 percent of the applicable major 
source threshold or 5 tpy, whichever is greater. [END OF ALTERNATIVES 
to paragraph (f)(2)(ii)(A)]
    [ALTERNATIVE 1 to paragraph (f)(2)(ii)(B):]
    (B) For HAP's, 0 tpy.
    [ALTERNATIVE 2 to paragraph (f)(2)(ii)(B):]
    (B) For HAP's, 20 percent of the major source thresholds 
established under section 112 of the Act or 50 percent of the de 
minimis levels established under section 112(g) of the Act, whichever 
is less.
    [ALTERNATIVE 3 to paragraph (f)(2)(ii)(B):]
    (B) For HAP's, 75 percent of de minimis levels established under 
section 112(g) of the Act. [END OF ALTERNATIVES to paragraph 
(f)(2)(ii)(B)]
    (C) For other pollutants regulated only under section 111 of the 
Act, the significance levels in Sec. 52.21(b)(23)(i).
    (iii) Increment-based change limits. A change at any emissions unit 
not qualifying for a unit-based change may still qualify as a de 
minimis permit revision if the following criteria are met:
    (A) Additional conditions:
    (1) Any resulting emissions limit must be expressed in the same 
form and units of measure as the previous emissions limit;
    (2) Any associated recalibration of continuous emissions monitors 
(CEM) or operational parameters must be undertaken in accordance with 
emission rates-to-CEM or operational parameter ratios established in 
the operating permit program, in the source's permit, or through permit 
issuance procedures providing at least as much permitting authority, 
EPA (in the case of a program delegated pursuant to Sec. 71.10 ), and 
affected State review and public participation as minor permit revision 
procedures; [OPTION: DELETE PREVIOUS PARAGRAPH (f)(2)(iii)(A)(2).]
    (B) Size restrictions on individual change. No emissions increase 
at any unit may exceed:
    [ALTERNATIVE 1 to paragraph (f)(2)(iii)(B)(1):]
    (1) For criteria pollutants, the following emissions over the life 
of the permit:
    (i) 4 tons of CO;
    (ii) 1 ton of NOX;
    (iii) 1.6 tons of SO2;
    (iv) 0.6 ton of PM-10;
    (v) 1 ton of VOC.
    [ALTERNATIVE 2 to paragraph (f)(2)(iii)(B)(1):]
    (1) For criteria pollutants, 20 percent of the applicable major 
source threshold, 10 percent of the limit applicable to the unit 
undergoing the change, or 15 tpy VOC or NOX, whichever is less but 
in no event less than [2-5] tpy VOC or NOX or greater than 15 tpy 
PM-10 or 0.6 tpy lead.
    [ALTERNATIVE 3 to paragraph (f)(2)(iii)(B)(1):]
    (1) For criteria pollutants, 30 percent of applicable major source 
thresholds, or 15 percent of the limit applicable to the unit 
undergoing the change, whichever is less, but in no event less than 5 
tpy for VOC or NOX. [END OF ALTERNATIVES FOR paragraph 
(f)(2)(iii)(B)(1)]
    [ALTERNATIVE 1 to paragraph (f)(2)(iii)(B)(2):]
    (2) For HAP's, 0 tpy.
    [ALTERNATIVE 2 to paragraph (f)(2)(iii)(B)(2):]
    (2) For HAP's, 20 percent of the major source thresholds 
established under section 112 of the Act, 50 percent of the de minimis 
levels set pursuant to section 112(g) of the Act, or 10 percent of the 
limit applicable to the unit undergoing change, whichever is less.
    [ALTERNATIVE 3 to paragraph (f)(2)(iii)(B)(2):]
    (2) For HAP's, 75 percent of de minimis levels established under 
section 112(g) of the Act. [END OF ALTERNATIVES FOR paragraph 
(f)(2)(iii)(B)(2)]
    (3) For other pollutants regulated only under section 111 of the 
Act, the significance levels in Sec. 52.21(b)(23)(i) of this chapter.
    (3) De minimis permit revision procedures.
    (i) Application. A source may submit an application to the 
permitting authority requesting the use of de minimis permit revision 
procedures [[Page 20844]] provided that the permit contains a term or 
condition that authorizes the source to make use of the de minimis 
permit revision procedures for qualifying changes, the application 
meets the requirements of Sec. 71.5(f), and the permit application 
includes the following:
    (A) A description of the change, the emissions resulting from the 
change, and any new applicable requirements that will apply if the 
change occurs;
    (B) An addendum containing the terms and conditions of the source's 
suggested draft permit revision;
    (C) A demonstration that the proposed change meets the criteria for 
a de minimis permit revision; and
    (D) Certification by a responsible official consistent with 
Sec. 71.5(i) that:
    (1) The source is in compliance with any permit terms or conditions 
it seeks to revise;
    (2) The proposed revision meets the criteria for use of de minimis 
permit revision procedures; and
    (3) The source accepts all liability of making the requested change 
prior to final permitting authority action to revise the source's 
permit.
    [OPTION: ADD NEW PARAGRAPH:
    (E) A summary of any required demonstration performed in accordance 
with paragraphs (f)(2)(i)(E) and (F) of this section, and verification 
of such demonstration's affirmative approval by the permitting 
authority.]
    (ii) The permitting authority may allow the source to implement the 
requested change 7 days after the permitting authority's receipt of the 
source's de minimis permit revision application. At its discretion, the 
permitting authority may grant a request by the source to implement the 
change after less than 7 days.
    (iii) Public notification. Public notice shall be provided by the 
source of de minimis permit revision applications received by the 
permitting authority on a monthly, batched basis. At a minimum, the 
notice shall include: the name and address of the source where the 
proposed change would occur, a description of the change, the effective 
date of the permit revision, the emissions resulting from the change, 
and any new applicable requirements that will apply if the change 
occurs; reference to the pertinent administrative record/public docket; 
and the name, address and phone number of a person from whom interested 
persons may obtain additional information, including the permit 
application and supporting documentation as described in paragraph 
(f)(3)(i) of this section. [OPTION: ADD TO END OF PARAGRAPH: In 
addition, for permit revisions involving changes to monitoring or 
recordkeeping requirements, the permitting authority shall also submit 
to the publicly available docket the complete demonstration required by 
paragraphs (f)(2)(i) (E) and (F) of this section, a summary of the 
demonstration, and an affirmative statement of the demonstration's 
adequacy.]
    (iv) Permit amendment. The permit is revised by attaching the 
proposed addendum to the permit with the addendum specifying when the 
permit revision takes effect consistent with the following provisions.
    (A) Where the preconstruction permitting agency affirmatively 
approved the change pursuant to a preconstruction review process that 
included at least a 21-day public comment period and the 
preconstruction permitting agency authorized the change to be made 
under the de minimis permit revision process, the addendum shall take 
effect upon submission to the part 71 permitting authority of a 
complete de minimis permit revision application.
    (B) Where the preconstruction permitting agency did not 
affirmatively approve the change pursuant to a preconstruction review 
that provided for at least a 21-day public comment period, the addendum 
shall take effect [30-90] days after the date public notice is given 
under paragraph (f)(3)(iii) of this section if the part 71 permitting 
authority does not disapprove the request within that time period. The 
part 71 permitting authority shall retain the authority to disapprove 
such a change made through the de minimis permit revision process for a 
period of [30-90] days following the date public notice is given under 
paragraph (f)(3)(iii) of this section.
    (v) EPA and affected State notification.
    (A) In the case of a program delegated pursuant to Sec. 71.10, the 
permitting authority shall send a copy of the addendum to the permit to 
EPA within 7 days of the date the addendum takes effect.
    (B) In all cases, the permitting authority shall send a copy of the 
addendum to any affected State within 7 days of the date the addendum 
takes effect.
    (vi) Public request for disapproval.
    (A) Within [15-45] days of the date public notification is given, 
any person may request that the permitting authority disapprove the 
change if the permitting authority retained authority to disapprove the 
de minimis permit revision as described under paragraph (f)(3)(iv)(B) 
of this section.
    (B) Where the permitting authority was not required to retain 
authority to disapprove the de minimis permit revision, the public may 
petition the permitting authority to revoke the permit revision 
allowing the change.
    (4) Source liability. If, after a source makes the requested 
change, the permitting authority disapproves the change or EPA objects 
to the change (in the case of a program delegated pursuant to 
Sec. 71.10), the source shall be liable for having operated in 
violation of its existing permit from the time at which the source made 
the change. Notwithstanding the preceding sentence, the permitting 
authority may issue a permit revision that varies from the source's 
proposed addendum without rendering the source liable for violating its 
existing permit if the proposed addendum includes enforcement terms 
sufficient to support an enforcement action and the permitting 
authority's revisions are not necessary to make the change eligible for 
de minimis permit revision procedures and do not change the applicant's 
determination of which requirements of the Act apply to the source as a 
result of the requested change. The source would remain liable for any 
violations of the requirements which are applicable as a result of the 
change and the source's proposed permit revision.
    (5) The permit shield under Sec. 71.6(n) may not extend to de 
minimis permit revisions.
    (g) Minor permit revision procedures.
    (1) Criteria.
    (i) Minor permit revision procedures may be used only for those 
permit revisions that:
    (A) Do not affect permit terms or conditions that the source is 
violating;
    (B) Do not involve changes to existing monitoring, reporting, or 
recordkeeping requirements in the permit, unless such changes are 
necessary to implement other changes that qualify for minor permit 
revision procedures [OPTION: REPLACE PARAGRAPH (g)(1)(i)(B) WITH THE 
FOLLOWING:
    (B) Involve changes to monitoring or recordkeeping requirements 
that are:
    (1) Changes in the enforceable operating level of the method that, 
prior to the source's submission of a minor permit revision 
application, the permitting authority has affirmatively determined the 
source has demonstrated to be correlated to the source's existing or 
proposed compliance emissions rate, but such changes may not involve a 
switch to a new or alternative monitoring or recordkeeping operating 
parameter; [[Page 20845]] 
    (2) Changes to a monitoring or recordkeeping method that affect the 
measurement sensitivity of the method and representativeness of the 
data (e.g., precision, accuracy, measurement location, or averaging 
time) such that there may be a measurable effect in relation to the 
relevant source compliance emissions rate; changes that affect the 
scope and intent of the existing monitoring method (e.g., modified 
sample conditioning system, upgraded detector, upgraded data management 
system); or changes that may be generally applicable to similar 
monitoring methods in the same or other source categories (e.g., 
equipment modification for interference avoidance). Such changes may 
not involve a switch to new or alternative monitoring methods. Prior to 
the source's submission of a minor permit revision application, the 
permitting authority shall have affirmatively determined that the 
monitoring or recordkeeping change has been demonstrated by the source 
to have a known relationship and ability to determine compliance with 
the applicable source compliance emissions rate; or
    (3) In the case of a program delegated pursuant to Sec. 71.10, 
changes to monitoring or recordkeeping methods that have been approved 
pursuant to major or minor NSR and that are demonstrated therein to 
have a known relationship and ability to determine compliance with the 
applicable source compliance emissions rate. The application for the 
minor permit revision must include supporting documentation from the 
major or minor NSR permit approval, information regarding the 
demonstration and approval of the requested monitoring or recordkeeping 
method, and information in accordance with Sec. 71.7(g)(2) as related 
to the monitoring change. END OF OPTION];
    (C) Do not involve or depend on netting transactions undertaken to 
avoid being subject to preconstruction review under part C or D of 
title I of the Act unless such emissions reductions:
    (1) Have been approved pursuant to a minor NSR process for which a 
30-day public comment period was provided; or
    (2) Do not involve any single emissions increase that exceeds the 
applicable threshold for being a major modification under part C or D 
of title I of the Act, and the sum of all the contemporaneous increases 
does not exceed the applicable threshold for determining whether a 
source is major;
    (D) Do not involve offsets or modifications under section 112(g) of 
the Act, unless the change has been approved pursuant to a review 
process under section 112(g) of the Act;
    (E) Are not modifications subject to part C or D of title I of the 
Act, unless the change has been approved pursuant to major NSR and 
would incorporate all applicable requirements determined therein into 
the part 70 or part 71 permit;
    (F) [OPTION: ADD TO BEGINNING OF SENTENCE: Except for permit 
revisions solely involving monitoring or recordkeeping requirements,] 
Do not seek to establish or change a permit term or condition 
established to limit emissions which is federally enforceable only as a 
part 70 or part 71 permit term or condition. Such terms and conditions 
include:
    (1) A federally-enforceable emissions cap assumed in the part 70 or 
part 71 permit to avoid classification as a modification under any 
provision of title I of the Act;
    (2) An alternative emission limit established under the provisions 
of Sec. 71.6(a)(1)(iii) equivalent to a requirement contained in an 
applicable implementation plan;
    (3) An alternative emissions limit established in the part 70 or 
part 71 permit pursuant to regulations promulgated under section 
112(i)(5) of the Act;
    (4) An emissions limit established in the part 70 or part 71 permit 
pursuant to regulations promulgated under section 112(j) of the Act; 
and
    (5) Any other term or condition for which there is no corresponding 
underlying applicable requirement and the establishment of which allows 
the source to avoid an applicable requirement to which the source would 
otherwise be subject.
    (ii) Notwithstanding paragraph (g)(1)(i) of this section, minor 
permit revision procedures may be used for permit revisions involving 
the use of economic incentives, marketable permits, emissions trading, 
and other similar approaches, to the extent that such minor permit 
revision procedures are explicitly provided for in an applicable 
implementation plan or in applicable requirements promulgated by EPA.
    [OPTION: ADD NEW PARAGRAPH:
    (iii) Any demonstration required by paragraph (g)(1)(i)(B) of this 
section shall include an analysis conducted in accordance with 40 CFR 
64.4(b)(5) and 64.4(c) utilizing appendices A, B, C, and D of 40 CFR 
part 64.]
    (2) Application. An application requesting the use of minor permit 
revision procedures shall meet the requirements of Sec. 71.5(f) and 
shall include the following:
    (i) A description of the change, the emissions resulting from the 
change, and any new applicable requirements that will apply if the 
change occurs;
    (ii) An addendum containing the terms and conditions of the 
source's suggested draft permit revision;
    (iii) A demonstration that the proposed change is eligible to be 
processed as a minor permit revision;
    (iv) Certification by a responsible official, consistent with 
Sec. 71.5(i), that:
    (A) The proposed change meets the criteria for use of minor permit 
revision procedures;
    (B) The source is in compliance with the permit terms or conditions 
it seeks to revise;
    (C) Public notice of the proposed revision has been provided 
pursuant to paragraph (g)(3) of this section; and
    (D) Notice to the Administrator (in the case of a program delegated 
pursuant to Sec. 71.10), and affected States of the proposed revision 
has been provided pursuant to paragraph (g)(4) of this section; and
    (v) An affidavit signed by a responsible official stating that the 
source accepts all legal risks of making the requested change prior to 
final permitting authority action to revise the source's permit.
    [OPTION: ADD NEW PARAGRAPH:
    (vi) For a change involving changes to monitoring or recordkeeping 
requirements, a summary of any demonstration required by paragraph 
(g)(1)(i)(B) of this section and performed in accordance with paragraph 
(g)(1)(iii) of this section and verification of its approval by the 
permitting authority. If in approving the demonstration the permitting 
authority determines that subsequent verification testing of the change 
is necessary, the permitting authority may establish a compliance 
schedule for performing verification testing to further demonstrate, 
consistent with paragraph (g)(1)(iii) of this section, the adequacy of 
the change. Such compliance schedule, after approval by the permitting 
authority, shall be attached to the addendum described in paragraph 
(g)(2)(ii) of this section and be processed as a permit term and shall 
not allow the source to begin verification testing in advance of the 
time when the source would be allowed to implement the minor permit 
revision requested change. The approved compliance schedule shall 
include a commitment by the source to provide the results of the 
verification testing to the permitting authority within 90 days of 
submittal of the minor permit revision application. Upon 
[[Page 20846]] receipt of the verification testing results, the 
permitting authority shall determine whether the results demonstrate 
the adequacy of the change consistent with paragraph (g)(1)(iii) of 
this section. The permitting authority shall promptly notify the source 
in writing of its determination, and place a copy of such notice in the 
public docket. The permit shield under Sec. 71.6(n) may extend to minor 
permit revisions involving monitoring and recordkeeping changes only 
after any required further verification testing of the change has been 
completed.]
    (3) Public notification.
    (i) Immediately upon filing an application for a minor permit 
revision, the source shall provide notice to the public of the 
requested minor permit revision by:
    (A) Publication of a notice in a newspaper of general circulation 
in the area where the source is located or in a State publication 
designed to give the general public notice; and
    (B) Sending a letter to persons on a mailing list developed by the 
permitting authority, including those who previously participated in 
any public comment process provided for the source's permit and those 
who request to be placed on a list to receive notification of permit 
issuance, revision, reopening, or renewal requests.
    (ii) In addition to the elements required under Sec. 71.11(d)(4), 
the public notice shall describe the requested change and state that if 
no germane and non-frivolous objection to the requested change is 
received by the permitting authority within 21 days of publication of 
the notice, the source may implement the change without the permitting 
authority providing further opportunity for public participation. For 
purposes of this paragraph (g)(3)(ii), a germane objection is one that 
objects to the use of minor permit revision procedures for the 
requested change on the grounds that the source has failed to comply 
with the procedural and notification requirements of paragraphs (g)(3) 
and (4) of this section or that the requested change is ineligible for 
the use of minor permit revision procedures under paragraph (g)(1)(i) 
of this section. For purposes of this paragraph (g)(3)(ii), a non-
frivolous objection must specify the basis for its objection and 
present factual or other relevant information in support of its 
objection.
    (iii) The permitting authority shall place a copy of the minor 
permit revision request in a public docket. [OPTION: ADD A NEW 
SENTENCE: The permitting authority shall also place in the docket any 
complete demonstration required by Sec. 71.7(g)(1)(i)(B), a summary of 
the demonstration, the permitting authority's analysis of the 
demonstration, and an affirmative statement of the demonstration's 
adequacy.]
    (4) EPA and affected State notification.
    (i) In the case of a program delegated pursuant to Sec. 71.10, 
immediately upon filing an application for a minor permit revision, the 
source shall notify the Administrator of the requested permit revision 
in the same manner and subject to the same conditions required of 
permitting authorities under Sec. 71.10(d). Such notification shall 
relieve the permitting authority of the requirement to provide notice 
to the Administrator of the requested minor permit revision under 
Sec. 71.10(d), but shall not relieve the permitting authority of the 
requirement to promptly send to the Administrator any notice under 
Sec. 71.8(b).
    (ii) In all cases, immediately upon filing an application for a 
minor permit revision, the source shall notify affected States of the 
requested permit revision in the same manner and subject to the same 
conditions required of the permitting authority under Sec. 71.8(a). 
Such notification shall relieve the permitting authority of the 
requirement to provide notice to affected States of the requested minor 
permit revision under Sec. 71.8(a), but shall not relieve the 
permitting authority of the requirement to send any affected State any 
notice under Sec. 71.8(b).
    (5) Timetable for issuance. Upon receipt of an application for a 
minor permit revision, the permitting authority shall provide at least 
21 days for public comment on the requested change, and shall keep a 
record of the commenters and the issues raised during the public 
comment period. Such records shall be made available to the public. The 
minor permit revision shall occur according to the following 
procedures:
    (i) If the permitting authority receives no public objection to the 
requested change within 21 days of publication of the public notice, 
the source may implement the requested change on the 22nd day after 
publication of the public notice, provided that:
    (A) The permitting authority has neither denied the minor permit 
revision nor determined that the requested revision does not meet the 
minor permit revision criteria and should be reviewed under significant 
permit revision procedures; and
    (B) In the case of a program delegated pursuant to Sec. 71.10, the 
Administrator has not objected to the proposed minor permit revision.
    (ii) If the permitting authority receives a public objection to the 
requested change within 21 days after publication of the public notice, 
the permitting authority must determine within 28 days of publication 
of the public notice whether the objection is germane and non-
frivolous, and proceed according to the following procedures:
    (A) If the permitting authority within 28 days of public 
notification finds the public objection to be either frivolous or not 
germane, the permitting authority may respond to the public objection 
in the course of processing the minor permit revision request as a 
minor permit revision, and the source may implement the requested 
change on the 29th day after publication of the public notice or upon 
notification from the permitting authority that the permitting 
authority has determined the public objection to be frivolous or not 
germane, whichever is first, provided that:
    (1) The permitting authority has neither denied the minor permit 
revision application nor determined that the request fails to meet the 
minor permit revision criteria and should be reviewed under significant 
permit revision procedures; and
    (2) In the case of a program delegated pursuant to Sec. 71.10, the 
Administrator has not objected to the proposed minor permit revision.
    (B) If the permitting authority fails to determine within 28 days 
after publication of the public notice of the request for a minor 
permit revision whether a public objection submitted within 21 days of 
such notice is germane and nonfrivolous, the source may implement the 
requested change on the 29th day after publication of the public 
notice, provided that:
    (1) The permitting authority has neither denied the minor permit 
revision application nor determined that the request fails to meet the 
minor permit revision criteria and should be reviewed under significant 
permit revision procedures; and
    (2) In the case of a program delegated pursuant to Sec. 71.10, the 
Administrator has not objected to the proposed minor permit revision.
    (C) If the permitting authority finds the public objection to be 
germane and nonfrivolous, the permitting authority shall not issue a 
final minor permit revision for the change, and shall either deny the 
minor permit revision application or determine that the requested 
change does not meet the minor permit revision criteria and should be 
reviewed under significant permit revision procedures. If the 
permitting authority continues to process the requested change under 
[[Page 20847]] significant permit revision procedures, public notice of 
the proposed change must be provided in the manner required for 
significant permit revisions under Sec. 71.11. Such notice shall 
provide at least 30 days for public comment on the requested change, 
shall identify the time and place of any hearing that may be held, and 
shall include a statement of procedures to request a hearing if a 
hearing has not already been scheduled. For purposes of this paragraph, 
such a hearing may be held as soon as 14 days after publication of a 
notice that the requested change is being processed as a significant 
permit revision. The source shall not implement the requested change 
unless and until the permitting authority approves it as a significant 
permit revision.
    (iii) Any person who filed a public objection pursuant to this 
paragraph which the permitting authority within 28 days of public 
notification does not determine to be germane and nonfrivolous may 
bring suit in Federal court to compel action by the permitting 
authority and, in accordance with applicable standards for obtaining 
such relief under Federal law, seek an injunction in Federal court 
prohibiting the source from implementing the requested change.
    (iv) In the case of a program delegated pursuant to Sec. 71.10, 
where the minor permit revision has not been denied or required to be 
reviewed under significant permit revision procedures, the permitting 
authority may issue a final minor permit revision after EPA's 45-day 
review period has elapsed provided the Administrator has not objected 
to the requested change, or after EPA has notified the permitting 
authority after the close of the public comment period that EPA will 
not object to issuance of the minor permit revision, whichever is 
first, provided that the final minor permit revision does not differ 
from the draft permit except to the extent any changes to the draft 
permit qualify for administrative permit amendment procedures under 
paragraph (e) of this section.
    (v) Within 60 days after the permitting authority's receipt of an 
application for a minor permit revision, or 15 days after the 
expiration of EPA's 45-day review period (in the case of a program 
delegated pursuant to Sec. 71.10), whichever is later, the permitting 
authority shall:
    (A) Issue the minor permit revision as proposed;
    (B) Deny the minor permit revision application;
    (C) Determine that the requested revision does not meet the minor 
permit revision criteria and should be reviewed under significant 
permit revision procedures; or
    (D) Revise the draft minor permit revision and, in the case of a 
program delegated pursuant to Sec. 71.10, if such revision includes any 
changes that do not qualify for processing as administrative permit 
amendments under paragraph (e) of this section, transmit to the 
Administrator the new proposed permit revision as required by 
Sec. 71.10(d).
    (vi) Any person who objected to a minor permit revision request 
during the public comment period shall be notified by the permitting 
authority upon final approval of the request. The permitting authority 
shall also place a copy of its final approval decision in the public 
docket in which it places minor permit revision requests when received 
or provide a substantially equivalent means of public access to its 
final decision.
    (6) Reopening of the public comment period. If any data, 
information, or arguments submitted during the public comment period 
appear to raise substantial new questions concerning a permit, the 
permitting authority may reopen or extend the comment period to give 
interested persons an opportunity to comment on the information or 
arguments submitted. 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.
    (7) Issuance and effective date of permit.
    (i) After the close of the public comment period on a draft permit, 
the permitting authority shall issue a final permit decision. The 
permitting authority 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.
    (ii) A final permit decision shall become effective immediately 
upon issuance of the decision unless a later effective date is 
specified in the decision.
    (8) Source's ability to make change. The source may make the change 
proposed in its minor permit revision application in accordance with 
paragraph (g)(5) of this section. After the source makes the change 
allowed by the preceding sentence, and until the permitting authority 
takes any of the actions specified in paragraphs (g)(5)(v) (A) through 
(D) of this section, the source must comply with both the applicable 
requirements governing the change and the proposed permit terms and 
conditions. During this time period, the source need not comply with 
the existing permit terms and conditions it seeks to revise. However, 
if the source fails to comply with its proposed permit terms and 
conditions during this time period, the existing permit terms and 
conditions it seeks to revise may be enforced against it.
    (9) Source liability. If, after a source makes the requested change 
but prior to a permitting authority's final action to approve the 
change and revise the permit, the Administrator objects to the proposed 
minor permit revision (in the case of a program delegated pursuant to 
Sec. 71.10), or the permitting authority either denies the minor permit 
revision or determines that the requested revision does not meet the 
minor permit revision criteria and should be reviewed under significant 
permit revision procedures, the source shall be liable for having 
operated in violation of its existing permit from the time at which it 
implemented the requested change. Notwithstanding the preceding 
sentence, the permitting authority may issue a permit revision that 
varies from the source's application without rendering the source 
liable for violating its existing permit if the permitting authority's 
revisions are not necessary to make the change eligible for minor 
permit revision procedures and do not change the applicant's proposed 
determination of which requirements of the Act apply to the source as a 
result of the requested change and if the source demonstrates to the 
satisfaction of the permitting authority its compliance with the 
applicable requirement to which it is subject as a result of the change 
and the source's proposed permit revision. However, the source would 
remain liable for any violations of the requirements of the Act 
applicable as a result of the change and the source's proposed permit 
revision. [OPTION: ADD NEW SENTENCE: If, after the permitting 
authority's final action to revise the permit, any verification testing 
of the new operating level or revised monitoring approach as required 
by paragraph (g)(2)(vi) of this section demonstrates that the new 
operating level or revised monitoring approach fails to demonstrate 
compliance, the source then shall comply with the monitoring and 
recordkeeping permit terms and conditions that applied to the source 
before the minor permit revision, the minor permit revision shall be 
null and void and cease to have effect, and the source shall be liable 
for operating in violation of its permit from the time it implemented 
the change.] [[Page 20848]] 
    (10) Permit shield. The permit shield under Sec. 71.6(n) may extend 
to minor permit revisions, provided that the permitting authority has 
taken final action to issue the minor permit revision as a permit 
revision.
    (h) Significant permit revision procedures.
    (1) Criteria. Significant permit revision procedures shall be used 
for applications requesting permit revisions that do not qualify as 
administrative amendments, de minimis permit revisions, or minor permit 
revisions. At a minimum, every significant change in existing 
monitoring permit terms or conditions and every relaxation of reporting 
or recordkeeping permit terms or conditions shall be considered a 
significant change. [OPTION: DELETE PRECEDING SENTENCE] Nothing herein 
shall be construed to preclude the permittee from making changes 
consistent with this part that would render existing permit compliance 
terms and conditions irrelevant.
    (2) Significant permit revisions shall meet all requirements, 
including those for applications, public participation, review by 
affected States, and in the case of a program delegated pursuant to 
Sec. 71.10, review by EPA, as they apply to permit issuance and permit 
renewal. The permitting authority shall implement this review process 
to complete review on the majority of significant permit revisions 
within 9 months after receipt of a complete application.
    [OPTION: ADD NEW PARAGRAPH (h)(3):
    (3) Changes involving new or alternative monitoring methods that 
have not been approved pursuant to major or minor NSR under criteria 
equivalent to those contained in this paragraph (h)(3) shall be 
processed as significant permit revisions. Permitting authorities may 
approve such changes only where the new or alternative monitoring or 
recordkeeping method is demonstrated to have a known relationship and 
ability to determine compliance with the applicable standard. Such 
demonstration shall include an analysis conducted in accordance with 40 
CFR 64.4(b)(5) and 64.4(e) utilizing appendices A, B, C, and D of 40 
CFR part 64. The permitting authority shall include the demonstration 
and written evidence of the permitting authority's evaluation of the 
demonstration in the proposed permit it sends to EPA (in the case of a 
program delegated pursuant to Sec. 71.10) for review as required by 
Sec. 71.10.]
    (i) Reopening for cause.
    (1) Each issued permit shall include provisions specifying the 
conditions under which the permit will be reopened prior to the 
expiration of the permit. A permit shall be reopened and revised under 
any of the following circumstances:
    (i) Additional applicable requirements under the Act become 
applicable to a major part 70 or part 71 source with a remaining permit 
term of 3 or more years. Such a reopening shall be completed not later 
than 18 months after promulgation of the applicable requirement. No 
such reopening is required if the effective date of the requirement is 
later than the date on which the permit is due to expire, unless the 
original permit or any of its terms and conditions have been extended 
pursuant to Sec. 71.6 or paragraph (c)(3) of this section.
    (ii) Additional requirements (including excess emissions 
requirements) become applicable to an affected source under the acid 
rain program. Upon approval by the Administrator, excess emissions 
offset plans shall be deemed to be incorporated into the permit.
    (iii) The permitting authority or EPA (in the case of a program 
delegated pursuant to Sec. 71.10 ) determines that the permit contains 
a material mistake or that inaccurate statements were made in 
establishing the emissions standards or other terms or conditions of 
the permit.
    (iv) The permitting authority or EPA (in the case of a program 
delegated pursuant to Sec. 71.10 ) determines that the permit must be 
revised or revoked to assure compliance with the applicable 
requirements.
    (2) Proceedings to reopen and issue a permit shall follow the same 
procedures as apply to initial permit issuance and shall affect only 
those parts of the permit for which cause to reopen exists, and shall 
be made as expeditiously as practicable. Notwithstanding the preceding 
sentence, proceedings to reopen for standards under section 112 of the 
Act may use the following procedures:
    (i) Where the standard under section 112 of the Act is published 
after permit issuance, administrative amendment procedures under 
paragraph (e)(5) of this section may be used.
    (ii) Where the standard under section 112 of the Act is published 
before permit issuance and a compliance statement required under the 
standard under section 112 of the Act is due after permit issuance, the 
source shall apply for a minor permit revision by the compliance 
statement deadline to incorporate requirements necessary to assure 
compliance with the standard, unless the source is exempted from this 
requirement under paragraph (i)(2)(iii) of this section or under the 
rulemaking promulgating the standard under section 112 of the Act. If 
the source is utilizing alternatives requiring case-by-case approval, 
such as emissions averaging, or if required under the rulemaking 
promulgating the standard under section 112 of the Act, the source 
shall apply for a significant permit revision by the compliance 
statement deadline, in lieu of the requirement in the preceding 
sentence to apply for a minor permit revision.
    (iii) Sources subject to the following standards under section 112 
of the Act published as of [DATE OF PUBLICATION OF FINAL RULE] are 
exempt from the requirements in paragraph (i)(2)(ii) of this section to 
apply for a minor permit revision: NESHAP for Industrial Process 
Cooling Towers, at 40 CFR part 63, subpart Q.
    (3) Reopenings under paragraph (i)(1) of this section shall not be 
initiated before a notice of such intent is provided to the part 70 or 
part 71 source by the permitting authority at least 30 days in advance 
of the date that the permit is to be reopened, except that the 
permitting authority may provide a shorter time period in the case of 
an emergency. Where reopening for standards under section 112 of the 
Act requiring initial notification by the source, and where the source 
has provided such notification to the permitting authority by the 
applicable date, the permitting authority need not provide the notice 
required by the preceding sentence.
    (j) Reopenings for cause by EPA for delegated programs.
    (1) In the case of a program delegated pursuant to Sec. 71.10 , if 
the Administrator finds that cause exists to terminate, revise, or 
revoke and reissue a permit pursuant to paragraph (i) of this section, 
the Administrator will notify the permitting authority and the 
permittee of such finding in writing.
    (2) The permitting authority shall, within 90 days after receipt of 
such notification, forward to EPA a proposed determination of 
termination, revision, or revocation and reissuance, as appropriate. 
The Administrator may extend this 90-day period for an additional 90 
days if he or she finds that a new or revised permit application is 
necessary or that the permitting authority must require the permittee 
to submit additional information.
    (3) The Administrator will review the proposed determination from 
the permitting authority within 90 days of receipt.
    (4) The permitting authority shall have 90 days from receipt of an 
EPA objection to resolve any objection that [[Page 20849]] EPA makes 
and to terminate, revise, or revoke and reissue the permit in 
accordance with the Administrator's objection.
    (5) If the permitting authority fails to submit a proposed 
determination pursuant to paragraph (j)(2) of this section or fails to 
resolve any objection pursuant to paragraph (j)(4) of this section, the 
Administrator will terminate, revise, or revoke and reissue the permit 
after taking the following actions:
    (i) Providing at least 30 days notice to the permittee in writing 
of the reasons for any such action. This notice may be given during the 
procedures in paragraphs (j)(1) through (j)(4) of this section.
    (ii) Providing the permittee an opportunity for comment on the 
Administrator's proposed action and an opportunity for a hearing.


Sec. 71.8  Affected State Review.

    (a) Notice of draft permits. When a part 71 operating permits 
program becomes effective in a State or Tribal area, the permitting 
authority shall provide notice of each draft permit to any affected 
State, as defined in Sec. 71.2, on or before the time that the 
permitting authority provides this notice to the public pursuant to 
Secs. 71.7(e)(4), 71.7(h), 71.7(i) or 71.11(d) and shall provide any 
affected State a copy of the addendum for a de minimis permit revision 
within 7 days of the date on which the addendum takes effect.
    (b) Notice of refusal to accept recommendations. Prior to issuance 
of the final permit, the permitting authority shall notify any affected 
State (and the Administrator, in the case of a program delegated 
pursuant to Sec. 71.10) in writing of any refusal by the permitting 
authority to accept all recommendations for the proposed permit that 
the affected State submitted during the public or affected State review 
period. The notice shall include the permitting authority's reasons for 
not accepting any such recommendation. The permitting authority is not 
required to accept recommendations that are not based on applicable 
requirements or the requirements of this part.
    (c) Waiver of notice requirements. The Administrator may waive the 
requirements of paragraph (a) of this section for any category of 
sources (including any class, type, or size within such category) other 
than major sources by regulation for a category of sources nationwide.


Sec. 71.9  Permit Fees.

    (a) Fee requirement. The owners or operators of part 71 sources 
shall pay annual fees, or the equivalent over some other period, that 
are sufficient to cover the permit program costs, in accordance with 
the procedures described in this section.
    (b) Permit program costs. These costs include, but are not limited 
to, the costs of the following activities as they relate to a part 71 
program:
    (1) Preparing generally applicable guidance regarding the permit 
program or its implementation or enforcement;
    (2) Reviewing and acting on any application for a permit, permit 
revision, or permit renewal, including the development of an applicable 
requirement as part of the processing of a permit, or permit revision 
or renewal;
    (3) Processing permit reopenings;
    (4) General administrative costs of the permit program, including 
transition planning, interagency coordination, contract management, 
training, informational services and outreach activities, assessing and 
collecting fees, the tracking of permit applications, compliance 
certifications, and related data entry;
    (5) Implementing and enforcing the terms of any part 71 permit (not 
including any court costs or other costs associated with an enforcement 
action), including adequate resources to determine which sources are 
subject to the program;
    (6) Emissions and ambient monitoring, modeling, analyses, 
demonstrations, preparation of inventories, and tracking emissions, 
provided these activities are needed in order to issue and implement 
part 71 permits; and
    (7) Providing direct and indirect support to small business 
stationary sources in determining applicable requirements and in 
receiving permits under this part (to the extent that these services 
are not provided by a State Small Business Stationary Source Technical 
and Environmental Compliance Assistance Program).
    (c) Establishment of fee schedule.
    (1) For part 71 programs that are administered by EPA, each part 71 
source shall pay an annual fee in the amount of $45 dollars per ton (as 
adjusted pursuant to the criteria set forth in paragraph (n)(1) of this 
section) times the total tons of the actual emissions of each regulated 
pollutant (for fee calculation) emitted from the source, including 
fugitive emissions.
    (2) For part 71 programs that are delegated pursuant to Sec. 71.10, 
the annual fee for each part 71 source shall be the amount specified in 
paragraph (c)(1) of this section plus a surcharge of $3 per ton per 
year. The surcharge will be used to defray the Agency's cost of 
administering program delegation.
    (3) For part 71 programs that are administered by EPA with 
contractor assistance, the per ton fee will vary depending on the 
extent of contractor involvement and the cost to EPA of contractor 
assistance. The EPA shall establish a per ton fee that is based on the 
contractor costs for the specific part 71 program that is being 
administered, using the following formula:

Cost per ton=(E x $45)+[(1-E) x $C]+$3 surcharge

Where E represents EPA's proportion of total effort (expressed as a 
percentage of total effort) needed to administer the part 71 program, 
1-E represents the contractor's effort, and C represents the contractor 
assistance cost on a per ton basis. The $3 surcharge covers EPA's cost 
for administering contractor permit program activities. C shall be 
computed by using the following formula:

C=[B+T+N] divided by 12,300,000

Where B represents the base cost (contractor costs), where T represents 
travel costs, and where N represents non-personnel data management and 
tracking costs.
    (4) For programs that are delegated in part and that also use 
contractor assistance, the fee shall be computed using the formula in 
paragraph (c)(3) of this section, provided that E represents the 
proportion of total effort (expressed as a percentage) expended by EPA 
and the delegate agency.
    (5) The following emissions shall be excluded from the calculation 
of fees under paragraph (c)(1) of this section:
    (i) The amount of a part 71 source's actual emissions of each 
regulated pollutant (for fee calculation) that the source emits in 
excess of four thousand (4,000) tpy;
    (ii) A part 71 source's actual emissions of any regulated pollutant 
(for fee calculation) already included in the fee calculation; and
    (iii) The insignificant quantities of actual emissions not required 
to be listed or calculated in a permit application pursuant to 
Sec. 71.5(g).
    (6) ``Actual emissions'' means the actual rate of emissions in tpy 
of any regulated pollutant (for fee calculation) emitted from a part 71 
source over the preceding calendar year. Actual emissions shall be 
calculated using each emissions unit's actual operating hours, 
production rates, in-place control equipment, and types of materials 
processed, stored, or combusted during the preceding calendar year. 
[[Page 20850]] 
    (7) Notwithstanding the above, if the Administrator determines that 
the fee structures provided in paragraphs (c)(1) through (c)(4) of this 
section do not reflect the costs of administering a part 71 program, 
then the Administrator shall by rule set a fee which adequately 
reflects permit program costs for that program.
    (d) Prohibition on fees with respect to emissions from affected 
units. Notwithstanding any other provision of this section, during the 
years 1995 through 1999 inclusive, no fee for purposes of title V of 
the Act shall be required to be paid with respect to emissions from any 
affected unit under section 404 of the Act.
    (e) Submission of initial fee calculation work sheets and fees.
    (1) Each part 71 source shall complete and submit an initial fee 
calculation work sheet as provided in paragraphs (e)(2), (f), and (g) 
of this section and shall complete and submit fee calculation work 
sheets thereafter as provided in paragraph (h) of this section. 
Calculations of actual or estimated emissions and calculation of the 
fees owed by a source shall be computed by the source on fee 
calculation work sheets provided by EPA. Fee payment in an amount that 
equals one-third of the annual fees owed must accompany each initial 
fee calculation work sheet. The balance of the annual fees owed must be 
paid within four months of the due date of the initial fee or within 
one year of the effective date of the part 71 program, whichever is 
earlier.
    (2) The fee calculation work sheet shall require the source to 
submit a report of its actual emissions for the preceding calendar year 
and to compute fees owed based on those emissions. For sources that 
have been issued part 70 or part 71 permits, actual emissions shall be 
computed using compliance methods required by the most recent permit. 
If actual emissions cannot be determined using the compliance methods 
in the permit, the actual emissions should be determined using 
federally recognized procedures. If a source commenced operation during 
the preceding calendar year, the source shall estimate its actual 
emissions for the current calendar year. In such a case, fees for the 
source shall be based on the total emissions estimated.
    (f) Deadlines for submission.
    (1) When EPA withdraws approval of a part 70 program and implements 
a part 71 program, part 71 sources shall submit initial fee calculation 
work sheets and fees in accordance with the following schedule:
    (i) Sources having SIC codes between 0100 and 2499 inclusive shall 
complete and submit fee calculation work sheets and fees within 4 
months of the effective date of the part 71 program;
    (ii) Sources having SIC codes between 2500 and 2999 inclusive shall 
complete and submit fee calculation work sheets and fees within 5 
months of the effective date of the part 71 program;
    (iii) Sources having SIC codes between 3000 and 3999 inclusive 
shall complete and submit fee calculation work sheets and fees within 6 
months of the effective date of the part 71 program;
    (iv) Sources having SIC codes higher than 3999 shall complete and 
submit fee calculation work sheets and fees within 7 months of the 
effective date of the part 71 program.
    (2) Sources that are required under either paragraph (f)(1) or (g) 
of this section to submit fee calculation work sheets and fees between 
January 1 and March 31 may estimate their emissions for the preceding 
calendar year in lieu of submitting actual emissions data. If the 
source's initial fee calculation work sheet was based on estimated 
emissions for the source's preceding calendar year, then the source 
shall reconcile the fees owed when it submits its annual emissions 
report, as provided in paragraph (h)(3) of this section.
    (3) When EPA implements a part 71 program that does not replace an 
approved part 70 program, part 71 sources shall submit initial fee 
calculation work sheets and initial fees when submitting their permit 
applications in accordance with the requirements of Sec. 71.5(b)(1).
    (4) Notwithstanding the above, sources that become subject to the 
part 71 program after the program's effective date shall submit an 
initial fee calculation work sheet and initial fees when submitting 
their permit applications in accordance with the requirements of 
Sec. 71.5(b)(1) .
    (g) Fees for sources that are issued part 71 permits following an 
EPA objection pursuant to Sec. 71.4(e). Fees for such sources shall be 
determined as provided in paragraph (c) of this section. However, 
initial fee calculation work sheets for such sources and full payment 
of annual fees shall be due three months after the date on which the 
source's part 71 permit is issued.
    (h) Annual emissions reports.
    (1) Deadlines for submission. Each part 71 source shall submit an 
annual report of its actual emissions for the preceding calendar year, 
a fee calculation work sheet (based on the report), and full payment of 
the annual fee each year on the anniversary date of its initial fee 
calculation work sheet, except that sources that were required to 
submit initial fee calculation work sheets between January 1 and March 
31 inclusive shall submit subsequent annual emissions reports and fee 
calculation work sheets on April 1.
    (2) For sources that have been issued part 70 or part 71 permits, 
actual emissions shall be computed using methods required by the most 
current permit for determining compliance.
    (3) If the source's initial fee calculation work sheet was based on 
estimated emissions for the source's current or preceding calendar 
year, then the source shall reconcile the fees owed when it submits its 
annual emissions report. The source shall compare the estimated 
emissions from the initial work sheet and the actual emissions from the 
report and shall enter such information on the fee calculation work 
sheet that accompanies the annual report. The source shall recompute 
the initial fee accordingly and shall remit any underpayment with the 
report and work sheet. The EPA shall credit any overpayment to the 
source's account.
    (i) Recordkeeping requirements. Part 71 sources will retain, in 
accordance with the provisions of Sec. 71.6(e), all work sheets and 
other materials used to determine fee payments. Records shall be 
retained for 5 years following the year in which the emissions data is 
submitted.
    (j) Fee assessment errors.
    (1) If EPA determines than a source has completed the fee 
calculation work sheet incorrectly, the permitting authority shall bill 
the applicant for the corrected fee or credit overpayments to the 
source's account.
    (2) Each source notified by the permitting authority of additional 
amounts due shall remit full payment within 30 days of receipt of an 
invoice from the permitting authority.
    (3) An owner or operator of a part 71 source who thinks that the 
assessed fee is in error shall provide a written explanation of the 
alleged error to the permitting authority along with the assessed fee. 
The permitting authority shall, within 90 days of receipt of the 
correspondence, review the data to determine whether the assessed fee 
was in error. If an error was made, the overpayment shall be credited 
to the account of the part 71 source.
    (k) Remittance procedure.
    (1) Each remittance under this section shall be in United States 
currency and shall be paid by money order, bank draft, certified check, 
corporate check, or electronic funds transfer payable to the order of 
the U.S. Environmental Protection Agency. [[Page 20851]] 
    (2) Each remittance shall be sent to the Environmental Protection 
Agency to the address designated on the fee calculation work sheet or 
the invoice.
    (l) Penalty and interest assessment.
    (1) The permitting authority shall assess interest on payments 
which are received later than the date due. The interest rate shall be 
the sum of the Federal short-term rate determined by the Secretary of 
the Treasury in accordance with section 6621(a)(2) of the Internal 
Revenue Code of 1986, plus 3 percentage points.
    (2) The permitting authority shall assess a penalty charge of 50 
percent of the fee amount if the fee is not paid within 30 days of the 
payment due date.
    (3) Part 71 sources shall be assessed a penalty of 50 percent on 
underpayments computed under paragraph (h)(3) of this section when the 
underpayment is in excess of 20 percent of the initial estimated fee 
amount and interest as computed under paragraph (l)(1) of this section 
on that portion of the underpayment in excess of 20 percent of the 
initial fee amount.
    (m) Failure to remit fees. The permitting authority shall not issue 
a final permit or permit revision until all fees, interest and 
penalties assessed against a source under this section are paid. The 
initial application of a source shall not be found complete unless the 
source has paid all fees owed.
    (n) Adjustments of fee schedules.
    (1) The fee schedules provided in paragraphs (c)(1) through (c)(4) 
of this section shall remain in effect until December 31, 1996. 
Thereafter, the fee schedules shall be changed annually by the 
percentage, if any, of any annual increase in the Consumer Price Index.
    (2) Part 71 permit program costs and fees will be reviewed by the 
Administrator at least every two years, and changes will be made to the 
fee schedule as necessary to reflect permit program costs.
    (3) When changes to a fee schedule are made based on periodic 
reviews by the Administrator, the changes will be published in the 
Federal Register as a rule.
    (o) Use of revenue. All fees, penalties, and interest collected 
under this part shall be deposited in a special fund in the U.S. 
Treasury, which thereafter shall be available for appropriation, to 
remain available until expended, subject to appropriation, to carry out 
the activities required by this part.


Sec. 71.10  Delegation of part 71 program.

    (a) Delegation of part 71 program. The Administrator may delegate, 
in whole or in part, with or without signature authority, the authority 
to administer a part 71 operating permits program to a State, eligible 
Tribe, local, or other non-State agency in accordance with the 
provisions of this section. In order to be delegated authority to 
administer a part 71 program, the delegate agency must submit a legal 
opinion from the Attorney General from the State, or the attorney for 
the State, local, interstate, or eligible Tribal agency that has 
independent legal counsel, stating that the laws of the State, 
locality, interstate compact or Indian Tribe provide adequate authority 
to carry out all aspects of the delegated program. A Delegation of 
Authority Agreement (Agreement) shall set forth the terms and 
conditions of the delegation, shall specify the provisions that the 
delegate agency shall be authorized to implement, and shall be entered 
into by the Administrator and the delegate agency. The Agreement shall 
become effective upon the date that both the Administrator and the 
delegate agency have signed the Agreement. Once delegation becomes 
effective, the delegate agency will be responsible, to the extent 
specified in the Agreement, for administering the part 71 program for 
the area subject to the Agreement.
    (b) Publication of Delegation of Authority Agreement. The Agreement 
shall be published in the Federal Register.
    (c) Revision or revocation of Delegation of Authority Agreement. An 
Agreement may be modified, amended, or revoked, in part or in whole, by 
the Administrator after consultation with the delegate agency.
    (d) Transmission of information to the Administrator.
    (1) When a part 71 program has been delegated in accordance with 
the provisions of this section, except as provided by 
Sec. 71.7(a)(1)(v), the delegate agency shall provide to the 
Administrator a copy of each application for a permit, permit renewal, 
or permit revision (including any compliance plan, or any portion the 
Administrator determines to be necessary to review the application and 
permit effectively), each proposed permit, and each final part 71 
permit.
    (2) The applicant may be required by the delegate agency to provide 
a copy of the permit application (including the compliance plan) 
directly to the Administrator.
    (3) Upon agreement with the Administrator, the delegate agency may 
submit to the Administrator a permit application summary form and any 
relevant portion of the permit application and compliance plan, in 
place of the complete permit application and compliance plan. To the 
extent practicable, the preceding information shall be provided in 
computer-readable format compatible with EPA's national database 
management system.
    (e) Retention of records. The records for each draft, proposed, and 
final permit, and application for permit renewal or revision shall be 
kept for a period of 5 years by the delegate agency. The delegate 
agency shall also submit to the Administrator such information as the 
Administrator may reasonably require to ascertain whether the delegate 
agency is implementing, administering, and enforcing the delegated part 
71 program in compliance with the requirements of the Act and of this 
part.
    (f) Prohibition of default issuance.
    (1) For the purposes of Federal law and title V of the Act, when a 
part 71 program has been delegated in accordance with the provisions of 
this section, no part 71 permit (including a permit renewal or 
revision) will be issued until affected States have had an opportunity 
to review the draft permit as required pursuant to Sec. 71.8(a) and EPA 
has had an opportunity to review the proposed permit.
    (2) To receive delegation of signature authority, the legal opinion 
submitted by the delegate agency pursuant to paragraph (a) of this 
section shall certify that no applicable provision of State, local or 
Tribal law requires that a part 71 permit or renewal be issued after a 
certain time if the delegate agency has failed to take action on the 
application (or includes any other similar provision providing for 
default issuance of a permit), unless EPA has waived such review for 
EPA and affected States. Notwithstanding this prohibition on default 
permit issuance, permits may be revised on a default basis pursuant to 
the procedures in Sec. 71.7 (e) and (f).
    (g) EPA objection.
    (1) No permit for which an application must be transmitted to the 
Administrator under paragraph (d)(1) of this section shall be issued if 
the Administrator objects to its issuance in writing within 45 days of 
receipt of the proposed permit and all necessary supporting 
information. When a part 71 program has been delegated in accordance 
with the provisions of this section, failure of the delegate agency to 
do any of the following shall constitute grounds for an objection by 
the Administrator:
    (i) Comply with paragraph (d) of this section;
    (ii) Submit any information necessary to review adequately the 
proposed permit;
    (iii) Process the permit under the procedures required by 
Secs. 71.7 and 71.11; [[Page 20852]] 
    (iv) Propose or issue a part 71 permit that complies with 
applicable requirements of the Act or the requirements under this part, 
except as provided in Sec. 71.7(a)(6); or
    (v) Comply with the requirements of Sec. 71.8(a).
    (2) Any EPA objection under paragraph (g)(1) of this section shall 
include a statement of the Administrator's reason(s) for objection and 
a description of the terms and conditions that the permit must include 
to respond to the objection. The Administrator will provide the permit 
applicant a copy of the objection.
    (3) If the delegate agency fails, within 90 days after the date of 
an objection under paragraph (g)(1) of this section, to revise and 
submit to the Administrator the proposed permit in response to the 
objection, the proposed permit shall not issue and thereafter the 
Administrator shall issue a part 71 permit to the applicant in 
accordance with the requirements of this part.
    (h) Public petitions. In the case of a delegated program, any 
interested person may petition the Administrator to reopen a permit for 
cause as provided in Sec. 71.11(n).
    (i) Appeal of permits. When a part 71 program has been delegated 
with signature authority in accordance with the provisions of this 
section, any permit applicant and any person or affected State that 
submitted recommendations or comments on the draft permit, or that 
participated in the public hearing process may petition the 
Environmental Appeals Board in accordance with Sec. 71.11(l)(1).
    (j) Non-delegable conditions.
    (1) The Administrator's authority to object to the issuance of a 
part 71 permit cannot be delegated to an agency not within EPA.
    (2) The Administrator's authority to act upon petitions submitted 
pursuant to paragraph (h) of this section cannot be delegated to an 
agency not within EPA.


Sec. 71.11  Administrative record, public participation, and 
administrative review.

    The provisions of paragraphs (a) through (j) of this section shall 
apply to initial permit issuance, permit renewals, permit reopenings, 
and significant permit revisions but not to permit revisions qualifying 
for minor permit revision procedures, de minimis permit revision 
procedures, or administrative amendments. The provisions of paragraphs 
(k), (l), and (m) of this section shall apply to all permit 
proceedings.
    (a) Draft permits.
    (1) The permitting authority shall promptly provide notice to the 
applicant of whether the application is complete pursuant to 
Sec. 71.7(a)(3).
    (2) Once an application for an initial permit, permit revision, or 
permit renewal is complete, the permitting authority shall decide 
whether to prepare a draft permit or to deny the application.
    (3) If the permitting authority initially decides to deny the 
permit application, it shall issue a notice of intent to deny. A notice 
of intent to deny the permit application is a type of draft permit and 
follows the same procedures as any draft permit prepared under this 
section. If the permitting authority's final decision is that the 
initial decision to deny the permit application was incorrect, it shall 
withdraw the notice of intent to deny and proceed to prepare a draft 
permit under paragraph (a)(4) of this section.
    (4) If the permitting authority decides to prepare a draft permit, 
it shall prepare a draft permit that contains the permit conditions 
required under Sec. 71.6.
    (5) All draft permits prepared under this section shall be publicly 
noticed and made available for public comment.
    (b) Statement of basis. The permitting authority shall prepare a 
statement of basis for every draft permit subject to this section. 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 
initial decision. The statement of basis shall be sent to the applicant 
and, on request, to any other person.
    (c) Administrative record for draft permits.
    (1) The provisions of a draft permit shall be based on the 
administrative record defined in this section.
    (2) For preparing a draft permit, the administrative record shall 
consist of:
    (i) The application and any supporting data furnished by the 
applicant;
    (ii) The draft permit or notice of intent to deny the application 
or to terminate the permit;
    (iii) The statement of basis;
    (iv) All documents cited in the statement of basis; and
    (v) Other documents contained in the supporting file for the draft 
permit.
    (3) Material readily available at the permitting authority or 
published material that is generally available, and that is included in 
the administrative record under paragraphs (b) and (c) of this section 
need not be physically included with the rest of the record as long as 
it is specifically referred to in the statement of basis.
    (d) Public notice of permit actions and public comment period.
    (1) Scope.
    (i) The permitting authority shall give public notice that the 
following actions have occurred:
    (A) A permit application has been initially denied under paragraph 
(a) of this section;
    (B) A draft permit has been prepared under paragraph (a) of this 
section;
    (C) A hearing has been scheduled under paragraph (f) of this 
section;
    (D) A public comment period has been reopened under paragraph (h) 
of this section;
    (E) An appeal has been granted under paragraph (l)(3) of this 
section.
    (ii) No public notice is required in the case of administrative 
permit revisions, 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, (including 
a notice of intent to deny a permit application), shall allow at least 
30 days for public comment.
    (ii) Except as provided under Sec. 71.7(g)(5)(ii)(C), 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 and the two notices may be combined.
    (iii) The permitting authority shall provide such notice and 
opportunity for participation to affected States on or before the time 
that the permitting authority 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 paragraph (d) of this 
section may waive his or her rights to receive notice for any permit):
    (A) The applicant;
    (B) Affected States;
    (C) Air pollution control agencies of affected States, Tribal and 
local air pollution control agencies which have jurisdiction over the 
area in which the source is located, the chief executives of the city 
and county where the source is located, any comprehensive regional land 
use planning agency and any State [[Page 20853]] or Federal Land 
Manager whose lands may be affected by emissions from the source;
    (D) Any unit of local government including the local emergency 
planning committee, having jurisdiction over the area where the source 
is located and to each State agency having any authority under State 
law with respect to the operation of such source;
    (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, 
where deemed appropriate by the permitting authority, in such 
publications as regional and State funded newsletters, environmental 
bulletins, or State law journals. The permitting authority may update 
the mailing list from time to time by requesting written indication of 
continued interest from those listed. The permitting authority may 
delete from the list the name of any person who fails to respond to 
such a request.
    (ii) By publication of a notice in a daily or weekly newspaper of 
general circulation within the area affected by the 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 permitting authority processing the 
permit;
    (B) The name and address of the permittee or permit applicant and, 
if different, of the facility regulated by the permit, except in the 
case of draft general permits;
    (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 whom 
interested persons may contact for instructions on how to obtain 
additional information, such as a copy of the draft permit, the 
statement of basis, the application, relevant supporting materials, and 
other materials available to the permitting authority that are relevant 
to the permitting decision.
    (F) A brief description of the comment procedures required by 
paragraph (e) of this section, 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;
    (G) The location of the administrative record, the times at which 
the record will be open for public inspection, and a statement that all 
data submitted by the applicant are available as part of the 
administrative record; and
    (H) Any additional information considered necessary or proper.
    (ii) Public notices for hearings. Public notice of a hearing may be 
combined with other notices required under paragraph (d)(1) of this 
section. Any public notice of a hearing under paragraph (f) of this 
section shall contain the following information:
    (A) The information described in paragraph (d)(4)(i) of this 
section;
    (B) Reference to the date of previous public notices relating to 
the permit;
    (C) The date, time, and place of the hearing; and
    (D) A brief description of the nature and purpose of the hearing, 
including the applicable rules and the comment procedures.
    (5) All persons identified in paragraphs (d)(3)(i) (A), (B), (C), 
(D), and (E) of this section shall be mailed a copy of the public 
hearing notice described in paragraph (d)(4)(ii) of this section.
    (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 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 permitting authority 
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) The permitting authority shall hold a hearing whenever it 
finds, on the basis of requests, a significant degree of public 
interest in a draft permit.
    (2) The permitting authority may also hold a public hearing at its 
discretion, whenever, for instance, such a hearing might clarify one or 
more issues involved in the permit decision.
    (3) Public notice of the hearing shall be given as specified in 
paragraph (d) of this section.
    (4) Whenever a public hearing is held, the permitting authority 
shall designate a Presiding Officer for the hearing who shall be 
responsible for its scheduling and orderly conduct.
    (5) Any person may submit oral or written statements and data 
concerning the draft permit. 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 section. The hearing officer may also extend 
the comment period by so stating at the hearing.
    (6) 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 permitting 
authority's initial 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 that 
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. In the case of a program delegated 
pursuant to Sec. 71.10, if requested by the Administrator, the 
permitting authority shall make supporting materials not already 
included in the administrative record available to EPA. The permitting 
authority may direct commenters to provide such materials directly to 
EPA. A comment period longer than 30 days may be necessary to give 
commenters a reasonable opportunity to comply with the requirements of 
this section. 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) The permitting authority may order the public comment period 
reopened if the procedures of paragraph (h) of this section could 
expedite the decision making process. When the public comment period is 
reopened under paragraph (h) of this section, all 
[[Page 20854]] persons, including applicants, who believe any condition 
of a draft permit is inappropriate or that the permitting authority's 
initial 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 30 days after public notice under 
paragraph (h)(2) of this section, set by the permitting authority. 
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 permitting authority.
    (2) Public notice of any comment period under this paragraph shall 
identify the issues to which the requirements of Sec. 71.11 (h)(1) 
through (h)(4) shall apply.
    (3) On its own motion or on the request of any person, the 
permitting authority may direct that the requirements of paragraph 
(h)(1) 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) of 
this section will substantially expedite the decision making process. 
The notice of the draft permit shall state whenever this has been done.
    (4) A comment period of longer than 30 days may be necessary in 
complicated proceedings to give commenters a reasonable opportunity to 
comply with the requirements of this section. Commenters may request 
longer comment periods and they may be granted to the extent the 
permitting authority finds it necessary.
    (5) If any data, information, or arguments submitted during the 
public comment period appear to raise substantial new questions 
concerning a permit, the permitting authority may take one or more of 
the following actions:
    (i) Prepare a new draft permit, appropriately modified;
    (ii) Prepare a revised statement of basis, 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.
    (6) Comments filed during the reopened comment period shall be 
limited to the substantial new questions that caused the reopening. The 
public notice shall define the scope of the reopening.
    (7) 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 permitting authority shall issue a final permit decision. The 
permitting authority 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 section, a 
final permit decision means a final decision to issue, deny, revise, 
revoke and reissue, renew, or terminate a permit.
    (2) A final permit decision shall become effective immediately upon 
issuance of the decision unless a later effective date is specified in 
the decision.
    (j) Response to comments.
    (1) At the time that any final permit decision is issued, the 
permitting authority 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, the permitting 
authority 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 permitting authority 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 permits.
    (1) The permitting authority shall base final permit decisions on 
the administrative record defined in paragraph (k)(2) of this section.
    (2) The administrative record for any final permit shall consist 
of:
    (i) All comments received during any 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 and any new materials placed in the 
record;
    (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;
    (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 the permitting authority. The record 
shall be complete on the date the final permit is issued.
    (4) Material readily available at the permitting authority, or 
published materials which are generally available and which are 
included in the administrative record under the standards of paragraph 
(j) of this section 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 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. Except for 
revisions qualifying for minor permit revision procedures, de minimis 
permit revision procedures, or administrative amendments, the 30-day 
period within which a person may request review under this section 
begins with the service of notice of the permitting authority's action 
unless a later date is specified in that notice. For revisions 
processed pursuant to minor permit revision procedures, the 30-day 
period within which a person may request review under this section 
begins on the date after the permitting authority notifies the source 
and commenters of the final permit action. For revisions processed 
pursuant to de minimis permit revision procedures, the 30-day period 
within which a person may request review under this section begins 
[[Page 20855]] on the date after the expiration of the permitting 
authority's period to disapprove the revision or revoke the revision in 
response to a citizen petition, whichever is applicable. For revisions 
processed pursuant to administrative amendment procedures, the 30-day 
period within which a person may request review under this section 
begins on the date following the expiration of the 60-day period after 
which the administrative amendment is effective. 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 part. The Board must act 
under paragraph (l) of this section within 30 days of the service date 
of notice of the permitting authority'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 the permit 
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 seeking 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 the permitting authority and 
agency review procedures are exhausted. A final permit decision shall 
be issued by the permitting authority:
    (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.
    (n) Public petitions to the Administrator.
    (1) Any interested person (including the permittee) may petition 
the Administrator to reopen a permit for cause, and the Administrator 
may commence a permit reopening on his or her own initiative. However, 
the Administrator shall not revise, revoke and reissue, or terminate a 
permit except for the reasons specified in Sec. 71.7(i)(1) or 
Sec. 71.6(a)(5)(i). 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 (n)(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) If the Administrator decides the request is justified and that 
cause exists to revise, revoke and reissue or terminate a permit, he or 
she shall initiate proceedings to reopen the permit pursuant to 
Sec. 71.7(i) or Sec. 71.7(j).


Sec. 71.12  Prohibited acts.

    Violations of any applicable requirement; any permit term or 
condition; any fee or filing requirement; any duty to allow or carry 
out inspection, entry, or monitoring activities; or any regulation or 
order issued by the permitting authority pursuant to this part are 
violations of the Act and are subject to full Federal enforcement 
authorities available under the Act.

[FR Doc. 95-10054 Filed 4-26-95; 8:45 am]
BILLING CODE 6560-50-P