Federal Operating Permit Programs; Permits for Early Reductions Sources

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 63 and 71

[FRL-5106-2]

RIN 2060-AF10

Federal Operating Permit Programs; Permits for Early Reductions

Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rulemaking establishes an interim Federal permitting

program solely for sources participating in the Early Reductions

Program under section 112(i)(5) of the Clean Air Act (Act), as amended.

It is designed to provide a temporary permitting mechanism until such

time as permanent permitting programs become effective pursuant to

title V of the Act. Under this interim program, EPA will be able to

permit early reductions sources in a timely manner, thus ensuring that

emission reductions achieved are maintained and providing assurance to

participating sources that they have qualified for the benefits of the

Early Reductions Program.

Also promulgated in this rulemaking are two amendments to the Early

Reductions Rule. The first appends to enforceable commitments made

under the Early Reductions Program information on emission reduction

measures employed to achieve early reductions and the second clarifies

deadlines for submitting post-reduction emission information to EPA.

EFFECTIVE DATE: November 21, 1994.

ADDRESSES: Background Information Document. The background information

document (BID) for the promulgated standards may be obtained from the

U.S. EPA Library (MD-35) , Research Triangle Park, North Carolina

27711, telephone number 919-541-2777. Please refer to ``Federal

Operating Permit Programs: Permits for Early Reductions Sources--

Background Information for Promulgated Rule'' (EPA-453/R-94-061b). The

BID contains (1) a summary of changes made to the rule since proposal

and (2) a summary of all public comments made on the proposed standards

and EPA's response to those comments.

Docket. Docket number A-93-08, containing supporting information

used in developing the promulgated rule is available for public

inspection and copying between 8:30 a.m. and 3:30 p.m., Monday through

Friday, at EPA's Air Docket, room M1500, U.S. Environmental Protection

Agency, 401 M Street, SW., Washington, DC. A reasonable fee may be

charged for copying.

FOR FURTHER INFORMATION CONTACT: Mr. David Beck, Emission Standards

Division (MD-13), U.S. Environmental Protection Agency, Research

Triangle Park, North Carolina 27711, telephone number 919-541-5421.

SUPPLEMENTARY INFORMATION: The information presented in this preamble

is organized as follows:

I. Introduction

II. Summary of Significant Comments and Changes Since Proposal

III. Administrative Requirements

I. Introduction

The Clean Air Act Amendments of 1990 rewrote existing section 112,

which directs the EPA to establish national emission standards for

hazardous air pollutants (HAP). A new provision, section 112(i)(5),

offers to sources that achieve substantial early reductions of HAP

emissions an extension in the compliance date for applicable standards

to be promulgated under section 112(d). To help implement this ``Early

Reductions Program,'' EPA is acting in this notice to promulgate an

interim, limited scope permit program, pursuant to title V of the Act.

This interim program will allow EPA to process applications under the

Early Reductions Program in a timely manner, until such time as

comprehensive title V permitting mechanisms become available. A

detailed rationale for this rulemaking accompanied the proposal notice,

which was published in the Federal Register on December 29, 1993 (57 FR

68804).

II. Summary of Significant Comments and Changes Since Proposal

The comment period for the proposed early reductions permits rule

ended on March 3, 1994, and EPA received five comment letters. Copies

of the comments reside in the docket for this rulemaking and are

available for public inspection (see ``Docket'' in the ADDRESSES

section of this preamble for further information). A summary of public

comments and EPA's responses to the comments are contained in the

background information document mentioned in the ADDRESSES section of

this preamble.

Consideration of these comments and other deliberations within the

Agency led to a few changes from the proposed permits rule, although

none of the changes altered the rule significantly. A brief summary of

the more notable changes appear in the list below (an expanded

explanation of these changes is contained in the background information

document).

1. A definition of ``post-reduction year'' has been added, as well

as clarifying language pertaining to deadlines for filing post-

reduction emission information. These changes make clearer the

requirements for demonstrating that qualifying reductions have been

achieved, and provide more flexibility to sources that wish to make

reduction demonstrations before the statutory deadline.

2. The proposed requirement to submit an application in a

computerized format, in addition to the typed application, has been

deleted. The EPA has not yet settled on a computer format for such

submittals.

3. The proposed rule contained a provision requiring permittees to

report any deviations from permit terms or conditions within ten days

of occurrence. This requirement has been revised to require ``prompt''

reporting of deviations, where ``prompt'' will be defined in each early

reductions permit and will be based on the type and degree of the

deviation. This is consistent with similar language in the part 70 for

State title V permit programs.

4. The procedures for making administrative amendments to existing

early reductions permits have been revised. The revisions are

consistent with recently proposed revisions to the administrative

amendments procedures specified in the part 70 rule for State title V

programs. The revised procedures clarify the permittee's actions in

initiating an administrative amendment and set the effective date of an

amendment at 60 days after receipt by the Administrator of the

amendment application (assuming the Administrator does not reject the

amendment prior to that time).

Also changed under the administrative amendments provisions of the

rule is the list of actions qualifying as administrative amendments

(Sec. 71.26(c)(1)). A new provision (Sec. 71.26(c)(1)(v)) allows

certain additional permit revisions to be treated as administrative

amendments provided that the Administrator determines, on a case-by-

case basis, that a proposed revision is similar to those qualifying

actions already specifically listed. The new provision is based upon a

similar provision in the part 70 rule and is a response to certain

commenters requests for additional flexibility to make relatively

insignificant changes at an early reductions source without having to

wait for a lengthy EPA approval process. Under the new provision, EPA

would be able to process through administrative amendment procedures

certain changes not listed in paragraphs Sec. 71.26(c)(1)(i) through

(iv) but which are ministerial in nature and therefore do not require

the exercise of judgment on the part of EPA, or review by the public or

affected States.

5. Another proposed provision deleted in the final rule was the

requirement that specialty permit applications contain a statement

indicating the source's compliance status with any applicable enhanced

monitoring and compliance certification requirements of the Act. This

provision was included in the proposal because a similar provision

appears in the part 70 rule. However, upon further reflection, EPA has

realized that the provision is not relevant to early reductions permit

applications. This specialty permit program focuses narrowly on

implementing the Early Reductions Program for a defined early

reductions source and associated HAP emissions, and within that context

the only monitoring and compliance certification requirements

applicable to the early reductions source will be those delineated in

the specialty permit issued later to the participating company. Each

specialty permit will implement the Act directive to provide for

enhanced monitoring on major sources by specifying monitoring

requirements tailored to the early reductions source and consistent

with the characteristics of the Early Reductions Program. Compliance

certification requirements also will be imposed to comply with title V

of the Act. However, it is inappropriate to ask a source to discuss, in

the permit application, its compliance status for these requirements

because they do not yet exist.

In the proposed rule preamble, EPA requested comment on whether the

final early reductions permits rule should contain procedures for minor

permit revisions. Such procedures would be used to process changes that

could not be processed as administrative amendments but which encompass

relatively minor changes to the source or its operation and, therefore,

would not warrant the longer (12 month) review and issuance process

allotted to significant source changes. Two commenters requested that

EPA include minor permit revision procedures in the final rule to

provide sources the ability to make certain changes in the early

reductions source quickly, which they consider to be key to remaining

competitive within their respective industries. The EPA has carefully

considered the commenters' requests for a more expedited permit

revision procedure, and has decided not to include such a procedure at

this time. There are two primary reasons for this decision. First, the

part 70 permit revision procedures are currently the subject of

litigation in the D.C. Circuit Court of Appeals. In part as a response

to this litigation, EPA has proposed revisions to these part 70

procedures. The current uncertainty over EPA's legal discretion to

provide for expeditious permit revision procedures cautions against

providing for any such procedures here in this final rule. Second, as

stated in the preamble to the proposal of this rule, EPA believes the

nature of these specialty permits, containing limitations that are

uniquely tailored to the facility, should reduce the need for permit

revisions. Another factor that deemphasizes the need for a more

expedited revision procedure is the fact that a specialty permit will,

relatively soon after permit issuance, be transferred to the

jurisdiction of the State, following which it will be subject to the

revision procedures of the State program.

The EPA may in the future decide to revise this rule to provide

more expedited procedures for minor permit revisions. However, EPA

currently intends await the outcome of the revisions to part 70 before

taking any such action.

As noted earlier, this notice also contains amendments to the Early

Reductions Rule. One of the amendments, proposed along with the early

reductions permits proposal, is promulgated without change and appends

to enforceable commitments made under the Early Reductions Program the

information on emission reduction measures employed to achieve early

reductions. Such information is required as part of a participant's

post-reduction emission demonstration. The other amendments mirror the

changes described in item 1 of the above list pertaining to the post-

reduction emissions demonstration. These amendments make the Early

Reductions Rule consistent with the permits rule promulgated in this

notice.

III. Administrative Requirements

A. Docket

The docket for this regulatory action is A-93-08. The docket is an

organized and complete file of all the information submitted to, or

otherwise considered by, EPA in the development of this rulemaking. The

principal purposes of the docket are:

(1) To allow interested parties a means to identify and locate

documents so that they can effectively participate in the rulemaking

process, and

(2) To serve as the record in case of judicial review. The docket

is available for public inspection at the EPA's Air Docket, which is

listed under the ADDRESSES section of this document.

B. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, 10/04/93), the Agency

must determine whether the regulatory action is ``significant'' and

therefore subject to Office of Management and Budget (OMB) review and

the requirements of the Executive Order. The Order defines

``significant'' regulatory action as one that is likely to lead to a

rule that may:

(1) Have an annual effect on the economy of $100 million or more,

or adversely and materially affect a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligation of recipients

thereof;

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the ``Executive Order.''

It has been determined that this action is not a ``significant

regulatory action'' within the meaning of Executive Order 12866 and is

therefore not subject to OMB review.

C. Regulatory Flexibility Act

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify

that the specialty permits rule and the amendments to the Early

Reductions Rule will not have a significant economic impact on a

substantial number of small business entities. The EPA estimates that

this rule will have no direct economic impact on any business entities

for two reasons. First, the Early Reductions Program is a voluntary

program, an alternate means of complying with otherwise applicable

standards forthcoming under section 112(d) of the Act. Generally,

companies would participate in the program if they thought their

compliance costs would be less than those associated with meeting

otherwise applicable standards. Costs could be less because the 90 (95)

percent reduction threshold to qualify for an extension likely will be

lower than the reduction required by applicable section 112(d)

standards. Moreover, the Early Reductions Rule provides owners or

operators considerable flexibility to average qualifying reductions

among participating emissions units.

Second, the specialty permits program rulemaking simply adapts for

earlier use the intended mechanism for eventually delineating and

enforcing all Act requirements at individual facilities, namely the

title V permit. Sources not electing to participate in the Early

Reductions Program would have to obtain title V permits anyway when

comprehensive title V. Therefore, this rulemaking does not add any

additional requirements to participants. The impacts from the

requirements of title V were considered in the promulgated part 70 rule

for State comprehensive programs (57 FR 32250). Moreover, the proposed

change to the Early Reductions Rule would have no economic effect on

any large or small business entities.

D. Paperwork Reduction Act

The information collection requirements in this rule have been

approved by the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501

et seq., and has been assigned the OMB control no. 2060-0276. An

Information Collection Request (ICR) document has been prepared by the

EPA (ICR No. 1650.01), and a copy may be obtained from Sandy Farmer,

Information Policy Branch (PM-223Y), U.S. Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460, or by calling (202)

260-2740.

This collection of information is estimated to have a public

reporting burden averaging 554 hours per respondent for one-time burden

items and 43 hours per respondent annually for recurring burden items.

This includes time for reviewing instructions, searching existing data

sources, gathering and maintaining the data needed, and completing and

reviewing the collection of information.

Send comments regarding the burden estimate or any other aspect of

this collection of information, including suggestions for reducing this

burden to Chief, Information Policy Branch (2136); U.S. Environmental

Protection Agency, 401 M Street, SW, Washington, DC 20460; and to the

Office of Information and Regulatory Affairs, Office of Management and

Budget, Washington, DC 20503, marked ``Attention: Desk Officer for

EPA.''

List of Subjects

40 CFR Part 9

Reporting and recordkeeping requirements.

40 CFR Part 63

Environmental protection, Air pollution control, Hazardous

substances, Hazardous air pollutants, Operating permits, Reporting and

recordkeeping requirements.

40 CFR Part 71

Administrative practice and procedure, Air pollution control,

Reporting and recordkeeping requirements.

Dated: November 8, 1994.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40, chapter I of the

Code of Federal Regulations is amended as follows:

PART 9--[AMENDED]

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

Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,

2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344,

1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975

Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1,

300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3,

300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-

9657, 11023, 11048.

2. Section 9.1 is amended by adding in numerical order a new

heading and a new entry under the new heading to read as follows:

9.1 OMB approvals under the Paperwork Reduction Act.

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OMB control

40 CFR citation No.

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Federal Operating Permit Programs

71.24--71.26............................................... 2060-0276

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* * * * *

PART 63--[AMENDED]

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

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

Subpart D--[Amended]

2. Section 63.71 is amended by adding the definition of ``Post-

reduction year'' in alphabetical order to read as follows:

Sec. 63.71 Definitions.

* * * * *

Post-reduction year means the one year period beginning with the

date early reductions have to be achieved to qualify for a compliance

extension under subpart D of this part, unless a source has established

with the permitting authority an earlier one year period as the post-

reduction year. For most sources, the post-reduction year would begin

with the date of proposal of the first section 112(d) standard

applicable to the early reductions source; however, for sources that

have made enforceable commitments, it would be the year from January 1,

1994 through December 31, 1994.

* * * * *

3. In Sec. 63.75, paragraph (g) is added to read as follows:

Sec. 63.75 Enforceable commitments.

* * * * *

(g) The control measure information required under Sec. 63.74(d)(1)

as part of post-reduction emission documentation and submitted in a

permit application according to the provisions of Sec. 63.77 shall

become part of an existing enforceable commitment upon receipt of the

permit application by the permitting authority. An owner or operator

shall notify the permitting authority of any change made to the source

during calendar year 1994 which affects such control measure

information and shall mail the notice within 5 days (postmark date) of

making the change. The notice shall be considered an amendment to the

source's enforceable commitment.

4. Section 63.77 is amended by revising paragraph (e) to read as

follows:

Sec. 63.77 Application procedures.

* * * * *

(e) If the post-reduction year does not end at least one month

before the permit application deadline under paragraph (c) of this

section, the source may file the post-reduction emissions information

required under Sec. 63.74(d)(2), (d)(3), and (d)(5) later as a

supplement to the original permit application. In such cases, this

supplemental information shall be submitted to the permitting authority

no later than one month after the end of the post-reduction year.

* * * * *

5. Part 71 is added to read as follows:

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

Subpart A--[Reserved]

Subpart B--Permits for Early Reductions Sources

Sec.

71.21 Program overview.

71.22 Definitions.

71.23 Applicability.

71.24 Permit applications.

71.25 Permit content.

71.26 Permit issuance, reopenings, and revisions.

71.27 Public participation and appeal.

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

Subpart A--[Reserved]

Subpart B--Permits for Early Reductions Sources

Sec. 71.21 Program overview.

(a) The regulations in this subpart provide for a limited, Federal,

title V, permit program to establish alternative emission limitations

for early reductions sources that have demonstrated qualifying

reductions of hazardous air pollutants under section 112(i)(5) of the

Act. A permit issued under this subpart which establishes such an

enforceable alternative emission limitation shall grant all emissions

units in the early reductions source a six-year extension from

otherwise applicable dates of compliance for standards promulgated

under section 112(d) of the Act.

(b) After approval of a State's comprehensive permit program

pursuant to title V of the Act, the Administrator may continue to issue

specialty permits under this subpart only under the following

circumstances:

(1) The early reductions source filed a permit application under

this subpart before the State obtained approval of a comprehensive

title V permit program but the permit had not been finally issued at

the time of State program approval; or

(2) The early reductions source will be required to file an early

reductions permit application under Sec. 71.24(b) before a

comprehensive permit application is required by the State under the

approved program.

(c) When a circumstance described in paragraph (b)(1) or (b)(2) of

this section occurs, the primary consideration in the Administrator's

decision to issue a specialty permit is the degree of delay anticipated

by deferring to the State for permit issuance.

(d) A Permit issued to an early reductions source under this

subpart shall have a term not to exceed five years. Such a specialty

permit shall be incorporated into a comprehensive title V permit

subsequently issued to the facility containing the early reductions

source, without reopening or revision of the specialty permit except as

provided in Sec. 71.26(e).

(e) Issuance of a specialty permit under this subpart does not

relieve a source from an obligation to file a timely and complete

comprehensive permit application as required under an approved

comprehensive title V permit program.

(f) Delegation to other permitting authorities. (1) The

Administrator may delegate to another permitting authority the

responsibility to implement this permit program. Under such a

delegation, the Administrator reserves the right to issue a final

permit to early reductions sources that filed permit applications with

the Administrator prior to the permitting authority obtaining

delegation.

(2) Under any delegation, the Administrator will require that the

permitting authority have enforcement authority substantially

equivalent to that specified in Sec. 70.11 of this chapter.

(3) Upon any delegation, administrative appeals of permit decisions

issuing pursuant to the delegated program shall continue to be subject

to the requirements of Sec. 71.27(l).

Sec. 71.22 Definitions.

All terms used in this subpart not defined in this section are

given the same meaning as in the Act or in subpart D of part 63 of this

chapter.

Act means the Clean Air Act, as amended, 42 U.S.C. 7401, et seq.

Actual emissions means the actual rate of emissions of a pollutant,

but does not include excess emissions from a malfunction, or startups

and shutdowns associated with a malfunction. Actual emissions shall be

calculated using the early reductions source's actual operating rates,

and types of materials processed, stored, or combusted during the

selected time period.

Affected States are all States:

(1) Whose air quality may be affected and that are contiguous to

the State in which a permit, permit modification or permit renewal is

being proposed; or

(2) That are within 50 miles of the permitted source.

Comprehensive title V permit program means a program approved by

the Administrator under part 70 of this chapter or a program

promulgated for EPA permit issuance under title V that encompasses all

applicable requirements of the Clean Air Act.

Draft permit means the version of a permit for which the

Administrator offers public participation under Sec. 71.27.

Early reductions source means a source of hazardous air pollutants

as defined pursuant to Sec. 63.73 of this chapter.

Emissions unit means any part or activity of a stationary source

that emits or has the potential to emit any hazardous air pollutant.

Enforceable commitment means a document drafted pursuant to section

112(i)(5)(B) of the Act and signed by a responsible company official

which commits a company to achieving before January 1, 1994 sufficient

reductions in hazardous air pollutants from a designated early

reductions source to qualify such source for a compliance extension

under section 112(i)(5)(A) of the Act.

EPA or Administrator means the Administrator of the EPA or his or

her designee.

Final permit means the version of a permit issued by the

Administrator under this subpart that has completed all review

procedures required by Sec. 71.27.

Hazardous air pollutant means any air pollutant listed pursuant to

section 112(b) of the Act.

Permit means any permit covering an existing early reductions

source that is issued, amended, or revised pursuant to this subpart.

Permit revision means any permit modification or administrative

permit amendment.

Permitting authority means either of the following:

(1) The Administrator, in the case of EPA-implemented programs; or

(2) The State air pollution control agency, local agency, other

State agency, or other agency authorized by the Administrator to carry

out a permit program under this subpart.

Post-reduction year means the one year period beginning with the

date early reductions have to be achieved to qualify for a compliance

extension under subpart D of part 63 of this chapter, unless a source

has established with the Administrator an earlier one year period as

the post-reduction year. For most sources, the post-reduction year

would begin with the date of proposal of the first section 112(d)

standard applicable to the early reductions source; however, for

sources that have made enforceable commitments, it would be the year

from January 1, 1994 through December 31, 1994.

Responsible official means one of the following:

(1) For a corporation: a president, secretary, treasurer, or vice-

president of the corporation in charge of a principal business

function, or any other person who performs similar policy or decision-

making functions for the corporation, or a duly authorized

representative of such person if the representative is responsible for

the overall operation of one or more manufacturing, production, or

operating facilities applying for or subject to a permit and either:

(i) The facilities employ more than 250 persons or have gross

annual sales or expenditures exceeding $25 million (in second quarter

1980 dollars); or

(ii) The delegation of authority to such representative is approved

in advance by the permitting authority;

(2) For a partnership or sole proprietorship: a general partner or

the proprietor, respectively; or

(3) For a municipality, State, Federal, or other public agency:

Either a principal executive officer or ranking elected official. For

the purposes of this part, a principal executive officer of a Federal

agency includes the chief executive officer having responsibility for

the overall operations of a principal geographic unit of the agency

(e.g., a Regional Administrator of EPA).

Section 112(d) standard means an emission standard issued by the

Administrator under section 112(d) of the Clean Air Act, as amended.

State means any non-Federal permitting authority, including any

local agency, interstate association, or statewide program. The term

``State'' also includes the District of Columbia, the Commonwealth of

Puerto Rico, the Virgin Islands, Guam, American Samoa, and the

Commonwealth of the Northern Mariana Islands. Where such meaning is

clear from the context, ``State'' shall have its conventional meaning.

Sec. 71.23 Applicability.

(a) Sources covered. The provisions of this subpart apply to an

owner or operator of an existing source who is seeking a compliance

extension under section 112(i)(5) of the Act and who, pursuant to part

63, subpart D, of this chapter, is required to file a permit

application for the extension prior to the date a comprehensive title V

permit program is approved for the State in which the existing source

is located.

(b) Covered emissions. All hazardous air pollutant emissions from

the early reductions source shall be included in permit applications

and part 71 permits issued under this subpart.

Sec. 71.24 Permit applications.

(a) Where to file. To apply for a compliance extension and an

alternative emission limitation under this subpart, the owner or

operator of an early reductions source shall file a complete permit

application with the appropriate EPA Regional Office. The owner or

operator shall also send a copy of the application to the appropriate

State agency; to the EPA Emission Standards Division, Mail Drop 13,

Research Triangle Park, North Carolina, 27711 (attention: Early

Reductions Officer); and to the EPA Office of Enforcement, EN-341W, 401

M Street, SW., Washington, DC 20460 (attention: Early Reductions

Officer).

(b) Deadlines. (1) Permit applications under this subpart for early

reductions sources not subject to enforceable commitments shall be

submitted by the later of the following dates:

(i) 120 days after proposal of an otherwise applicable standard

issued under section 112(d) of the Act; or

(ii) March 21, 1995.

(2) Permit applications for early reductions sources subject to

enforceable commitments established pursuant to Sec. 63.75 of this

chapter shall be filed no later than April 30, 1994.

(3) If the post-reduction year does not end at least one month

before the permit application deadline under paragraphs (b)(1) or

(b)(2) of this section, the source may file the post-reduction

emissions information required under paragraph (e)(2) of this section

later as a supplement to the original permit application. In such

cases, this supplemental information shall be submitted to the

Administrator no later than one month after the end of the post-

reduction year.

(4) If a source test will be the supporting basis for establishing

post-reduction emissions for one or more emissions units in the early

reductions source, the test results shall be submitted by the deadline

for submittal of a permit application under this section.

(c) Complete application. To be found complete, an application must

provide all information required pursuant to paragraph (e) of this

section, except for the information on post-reduction emissions

required under paragraph (e)(2) of this section. Applications for

permit revision need supply the information required under paragraph

(e) of this section only if it is related to the proposed change.

Information submitted under paragraph (e) of this section must be

sufficient to allow the Administrator to determine if the early

reductions source meets the applicable requirements of subpart D of

part 63 of this chapter. Unless the Administrator determines that an

application is not complete within 45 days of receipt of the

application, such application shall be deemed to be complete, except as

otherwise provided in Sec. 71.26(a)(3). If, while processing an

application that has been determined or deemed to be complete, the

Administrator determines that additional information is necessary to

evaluate or take final action on that application, the Administrator

may request such information in writing and set a reasonable deadline

for a response.

(d) Duty to supplement or correct application. Any applicant who

fails to submit any relevant facts or who has submitted incorrect

information in a permit application shall, upon becoming aware of such

failure or incorrect submittal, promptly submit such supplementary

facts or corrected information. In addition, an applicant shall provide

additional or revised information as necessary to address any

requirements of subpart D of part 63 of this chapter (Compliance

Extensions for Early Reductions) or of this subpart that become

applicable to the early reductions source after the date it filed a

complete application but prior to release of a draft permit.

(e) Required information. The following elements are required

information for permit applications under this subpart:

(1) Identifying information, including company name, telephone

number, and address (or plant name, telephone number, and address if

different from the company name); owner's name, telephone number, and

agent; and telephone number(s) and name(s) of plant site manager/

contact;

(2) All information required in Sec. 63.74 of this chapter,

including that needed to describe the early reductions source, its base

year and post-reduction emissions, and supporting basis for the

emissions;

(3) A statement of the proposed alternative emission limitation for

hazardous air pollutants from the early reductions source on an annual

basis, reflecting the emission reductions required to qualify the early

reductions source for a compliance extension under subpart D of part 63

of this chapter;

(4) Additional emission limiting requirements, such as work

practice standards or limitations on operation, which are necessary to

assure proper operation of installed control equipment and compliance

with the annual alternative emission limitation for the early

reductions source;

(5) Information necessary to define alternative operating scenarios

for the early reductions source or permit terms and conditions for

trading hazardous air pollutant increases and decreases under

Sec. 71.25(a)(10), including any associated permit terms and conditions

needed to assure compliance with the alternative emission limitation

under the alternative operating scenarios or pollutant trading; and

(6) Statements related to compliance meeting the following

criteria:

(i) A statement of methods proposed to determine compliance by the

early reductions source with the proposed alternative emission

limitation, including a description of monitoring devices and

activities, emission calculation procedures, recordkeeping, and

reporting requirements and test methods; and

(ii) A schedule for submission of compliance certifications during

the permit term, to be submitted no less frequently than annually.

(f) Any application form, report, or compliance certification

submitted pursuant to these regulations shall contain certification by

a responsible official of truth, accuracy, and completeness. This

certification and any other certification required under this part

shall state that, based on information and belief formed after

reasonable inquiry, the statements and information in the document are

true, accurate, and complete.

Sec. 71.25 Permit content.

(a) Standard permit requirements. Each permit issued under this

subpart shall include the following elements:

(1) Alternative emission limitation. An annual alternative emission

limitation for hazardous air pollutants from the early reductions

source reflecting the 90 percent reduction (95 percent for hazardous

air pollutants which are particulate matter) which qualified the early

reductions source for a compliance extension under subpart D of part 63

of this chapter.

(2) Additional limitations. Additional emission limiting

requirements, such as limitations on operation, work practice

standards, and any other emission limiting requirements for the early

reductions source necessary to assure compliance with the alternative

emission limitation.

(3) Monitoring requirements. Each permit shall contain the

following monitoring requirements:

(i) All emissions monitoring and analysis procedures or test

methods necessary to assure compliance with the emission limitations

established under paragraphs (a)(1) and (a)(2) of this section. Such

monitoring or testing shall be consistent with the demonstration made

pursuant to Sec. 63.74 of this chapter and any procedures and methods

promulgated pursuant to sections 114(a)(3) or 504(b) of the Act;

(ii) Periodic monitoring or testing sufficient to yield reliable

data from the relevant time period that are representative of the early

reductions source's compliance with the permit. Such monitoring

requirements shall assure use of terms, test methods, units, averaging

periods, and other statistical conventions consistent with the

demonstration made pursuant to Sec. 63.74 of this chapter.

Recordkeeping provisions may be sufficient to meet the requirements of

this paragraph (a)(3)(ii); and

(iii) As necessary, requirements concerning the use, maintenance,

and, where appropriate, installation of monitoring equipment or

methods.

(4) Recordkeeping requirements. The permit shall contain

recordkeeping requirements including the following, as applicable:

(i) Records of required monitoring information that include the

following:

(A) The date, place as defined in the permit, and time of sampling

or measurements;

(B) The date(s) analyses were performed;

(C) The company or entity that performed the analyses;

(D) The analytical techniques or methods used;

(E) The results of such analyses; and

(F) The operating conditions as existing at the time of sampling or

measurement;

(ii) Retention of records of all required monitoring data and

support information for a period of at least 5 years from the date of

the monitoring sample, measurement, report, or application. Support

information includes all calibration and maintenance records and all

original strip-chart recordings for continuous monitoring

instrumentation, and copies of all reports required by the permit.

(5) Reporting requirements. The permit shall require the following:

(i) Submittal of reports of all required monitoring at least every

6 months. All instances of deviations from permit requirements must be

clearly identified in such reports; and

(ii) Prompt reporting of any deviations from permit requirements,

including those attributable to upset conditions as defined in the

permit. Such reports shall include the probable cause of such

deviations and any corrective actions or preventive measures taken. The

Administrator will define ``prompt'' in the permit for each situation

and will do so in relation to the degree and type of deviation likely

to occur.

(6) A severability clause to ensure the continued validity of the

various permit requirements in the event of a challenge to any portions

of the permit.

(7) Provisions stating the following:

(i) The permittee must comply with all conditions of part 71 permit

issued under this subpart. A violation of an alternative emission

limitation, as well as any other requirement established in a permit

issued under this subpart, is enforceable pursuant to the authority of

section 113 of the Act, notwithstanding any demonstration of continuing

90 percent (95 percent in the case of hazardous air pollutants which

are particulates) emission reduction over the entire early reductions

source. Any permit noncompliance constitutes a violation of the Act and

is grounds for enforcement action or for permit termination, revocation

and reissuance, or modification;

(ii) Need to halt or reduce activity not a defense. It shall not be

a defense for a permittee in an enforcement action that it would have

been necessary to halt or reduce the permitted activity in order to

maintain compliance with the conditions of this permit;

(iii) The permit may be revised, revoked, reopened, and reissued,

or terminated for cause. The filing of a request by the permittee for a

permit revision, revocation and reissuance, or termination, or of a

notification of planned changes or anticipated noncompliance does not

stay any permit condition;

(iv) The permit does not convey any property rights of any sort, or

any exclusive privilege; and

(v) The permittee shall furnish to the Administrator, within a

reasonable time, any information that the Administrator may request in

writing to determine whether cause exists for revising the permit,

revoking and reissuing, or terminating the permit or to determine

compliance with the permit. Upon request, the permittee shall also

furnish to the Administrator copies of records required to be kept by

the permitee.

(8) Terms and conditions for reasonably anticipated operating

scenarios identified by the early reductions source in its application

as approved by the Administrator. Such terms and conditions:

(i) Shall require the early reductions source, contemporaneously

with making a change from one operating scenario to another, to record

in a log at the permitted facility a record of the scenario under which

it is operating. Provided that an emitting unit is monitored in a way

that provides contemporaneous identification that a change to a

particular alternate scenario has occurred, no notice to the

Administrator is required. Otherwise, when such a change is made, the

permittee at the beginning of the following week shall place in regular

mail to the Administrator notice that a change to a particular

alternate operating scenario has occurred; and

(ii) Must ensure that the terms and conditions of each such

alternative scenario meet the alternative emission limitation and the

requirements of this subpart.

(9) Terms and conditions, if the permit applicant requests them,

for the trading of hazardous air pollutant emissions increases and

decreases among emissions units within the early reductions source

without permit revision or case-by-case approval of each emissions

trade, provided that:

(i) Such terms and conditions include all terms required under

paragraphs (a) and (c) of this section to determine compliance;

(ii) The changes in hazardous air pollutant emissions do not exceed

the emissions allowable under the permit;

(iii) The changes in hazardous air pollutant emissions are not

modifications under any provision of title I of the Act;

(iv) The Administrator determines that the emissions are

quantifiable and that replicable procedures or other practical means

exist to enforce the emission trades; and

(v) The early reductions source owner or operator provides the

Administrator written notification at least 7 days in advance of the

proposed changes and includes in the notification a description of the

change in emissions that will occur, when the change will occur, and

how the increases and decreases in emissions will comply with the

alternative emission limitation and other terms and conditions of the

permit.

(b) Federally enforceable requirements. All terms and conditions in

a permit issued under this subpart are enforceable by the Administrator

and citizens under the Act.

(c) Compliance requirements. All permits issued under this subpart

shall contain the following elements with respect to compliance:

(1) Consistent with paragraphs (a)(3), (a)(4), and (a)(5) of this

section, testing, monitoring, recordkeeping, and reporting requirements

sufficient to assure compliance with the terms and conditions of the

permit. Any document (including reports) required to be submitted by a

permit shall contain a certification by a responsible official that

meets the requirements of Sec. 71.24(f).

(2) Inspection and entry provisions that require that, upon

presentation of credentials and other documents as may be required by

law, the permittee shall allow the Administrator or an authorized

representative to perform the following:

(i) Enter upon the permittee's premises where the early reductions

source is located or emissions-related activity is conducted, or where

required records are kept;

(ii) Have access to and copy, at reasonable times, any records that

must be kept under the conditions of the permit;

(iii) Inspect at reasonable times any facilities, equipment

(including monitoring and air pollution control equipment), practices,

or operations regulated or required under the permit; and

(iv) Sample or monitor at reasonable times substances or parameters

for the purpose of determining compliance with the permit.

(3) Requirements for compliance certification with terms and

conditions contained in the permit, including the alternative emission

limitation. Permits shall include each of the following:

(i) The frequency (not less than annually) of submissions of

compliance certifications;

(ii) Consistent with paragraph (a)(3) of this section, a means for

monitoring the compliance of the early reductions source with its

alternative emission limitation;

(iii) A requirement that the compliance certification include the

following:

(A) The identification of each term or condition of the permit that

is the basis of the certification;

(B) The compliance status;

(C) Whether compliance was continuous or intermittent;

(D) The method(s) used for determining the compliance status of the

early reductions source, currently and over the reporting period

consistent with paragraph (a)(3) of this section; and

(E) Such other facts as the Administrator may require to determine

the compliance status of the early reductions source;

(iv) A requirement that all compliance certifications be submitted

to the Administrator or the Administrator's designated agent; and

(v) Such additional requirements as may be specified pursuant to

sections 114(a)(3) and 504(b) of the Act.

(4) Such other provisions as the Administrator may require.

(d) Permit shield. (1) The Administrator will expressly include in

a permit issued pursuant to this subpart a provision stating that

compliance with the conditions of the permit shall be deemed compliance

with part 63, subpart D, of this chapter (the Early Reductions Rule),

as of the date of permit issuance.

(2) A permit shield may be extended to all permit terms and

conditions for alternate operating scenarios pursuant to paragraph

(a)(9) of this section or that allow increases and decreases in

hazardous air pollutant emissions pursuant to paragraph (a)(10) of this

section.

(3) Nothing in this paragraph (d) or in any permit issued pursuant

to this subpart shall alter or affect the following:

(i) The provisions of sections 112(r) and 303 of the Act (emergency

orders);

(ii) The liability of an owner or operator of an early reductions

source for any violation of applicable requirements prior to or at the

time of permit issuance; or

(iii) The ability of the Administrator to obtain information from

an early reductions source pursuant to section 114 of the Act.

(e) Emergency provision.--(1) Definition. An ``emergency'' means

any situation arising from sudden and reasonably unforeseeable events

beyond the control of the early reductions source, including acts of

God, which situation requires immediate corrective action to restore

normal operation, and that causes the early reductions source to exceed

an emission limitation under the permit, due to unavoidable increases

in emissions attributable to the emergency. An emergency shall not

include noncompliance to the extent caused by improperly designed

equipment, lack of preventative maintenance, careless or improper

operation, or operator error.

(2) Effect of an emergency. An emergency constitutes an affirmative

defense to an action brought for noncompliance with such an emission

limitation if the conditions of paragraph (e)(3) of this section are

met.

(3) The affirmative defense of emergency shall be demonstrated

through properly signed, contemporaneous operating logs, or other

relevant evidence that:

(i) An emergency occurred and that the permittee can identify the

cause(s) of the emergency;

(ii) The permitted facility was at the time being properly

operated;

(iii) During the period of the emergency the permittee took all

reasonable steps to minimize levels of emissions that exceeded the

emission limitation, or other requirements in the permit; and

(iv) The permittee submitted notice of the emergency to the

Administrator within 2 working days of the time when emission

limitations were exceeded due to the emergency. This notice fulfills

the requirement of paragraph (a)(5)(ii) of this section. This notice

must contain a description of the emergency, any steps taken to

mitigate emissions, and corrective actions taken.

(4) In any enforcement proceeding, the permittee seeking to

establish the occurrence of an emergency has the burden of proof.

Sec. 71.26 Permit issuance, reopenings, and revisions.

(a) Action on application. (1) A permit or permit revision may be

issued only if all of the following conditions have been met:

(i) The Administrator has received a complete application for a

permit or permit revision;

(ii) The requirements for public participation under Sec. 71.27

have been followed; and

(iii) The conditions of the proposed permit or permit revision meet

all the requirements of Sec. 71.25 and provide for compliance with an

alternative emission limitation reflecting the emissions reduction

which qualified the early reductions source for a compliance extension

under part 63, subpart D, of this chapter.

(2) The Administrator will take final action on each permit

application (including a request for permit revision) within 12 months

after receiving a complete application, except that final action may be

delayed where an applicant fails to provide additional information in a

timely manner as requested by the Administrator under Sec. 71.24(c).

(3) The Administrator will promptly provide notice to the applicant

of whether the application is complete. Unless the Administrator

requests additional information or otherwise notifies the applicant of

incompleteness within 45 days of receipt of an application, the

application shall be deemed complete. For revisions that qualify as

administrative amendments and are processed through the procedures of

paragraph (c) of this section, a completeness determination need not be

made.

(4) If a source submits a timely and complete application for

permit issuance, the source's failure to have a title V permit for

purposes of any requirements under section 112 pertaining to the early

reductions source is not a violation of this part until the

Administrator takes final action on the permit application. This

protection shall cease to apply if, subsequent to the completeness

determination made pursuant to paragraph (a)(3) of this section, and as

required by Sec. 71.24(d), the applicant fails to submit by the

deadline specified in writing by the Administrator any additional

information identified as being needed to process the application.

(b) Permit renewal and expiration. (1) Permits issued under this

subpart shall not be renewed. Permit renewal for expiring permits

issued under this subpart shall be accomplished according to the

requirements of title V of the Act for comprehensive permits for the

facility containing the early reductions source.

(2) Except as specified in paragraph (b)(3) of this section, permit

expiration terminates the early reductions source's right to operate.

(3) If, consistent with the requirements of title V of the Act, a

timely and complete application for a comprehensive title V permit for

the facility containing the early reductions source has been submitted

but the permitting authority has failed to issue or deny the

comprehensive permit prior to expiration of a permit issued under this

subpart, then the existing permit for the early reductions source shall

not expire until the comprehensive title V permit for the facility has

been issued or denied.

(c) Administrative permit amendments. (1) An ``administrative

permit amendment'' is a permit revision that:

(i) Corrects typographical errors;

(ii) Identifies a change in the name, address, or phone number of

any person identified in the permit, or provides a similar minor

administrative change at the source;

(iii) Requires more frequent monitoring or reporting by the

permittee;

(iv) Allows for a change in ownership or operational control of an

early reductions source where the permitting authority determines that

no other change in the permit is necessary, provided that a written

agreement containing a specific date for transfer of permit

responsibility, coverage, and liability between the current and new

permittee has been submitted to the permitting authority; or

(v) Incorporates any other type of change which the Administrator

has determined to be ministerial in nature and, therefore, similar to

those in paragraphs (c)(1)(i) through (c)(1)(iv) of this section.

(2) Administrative permit amendment procedures. Administrative

permit amendments may be made to a permit issued under this subpart

using the following procedures:

(i) The source shall submit to the Administrator an application

containing a proposed addendum to the source's permit. The application

shall demonstrate how the proposed change meets one of the criteria for

administrative amendments set forth in paragraphs (c)(1)(i) through

(c)(1)(iv) of this section, and include certification by the

responsible official consistent with Sec. 71.24(f) that the change is

eligible for administrative amendment procedures. The addendum shall:

(A) Identify the terms of the part 71, subpart B permit the source

proposes to change;

(B) Propose new permit terms consistent with the provisions of this

subpart applicable to the change;

(C) Designate the addendum as having been processed under the

procedures of this paragraph (c); and

(D) Specify that the addendum will be effective 60 days from the

date of the Administrator's receipt, unless the Administrator

disapproves the change within such period.

(ii) The Administrator will allow the source to implement the

requested change immediately upon making all required submittals,

including the proposed addendum.

(iii) The proposed addendum will become effective 60 days after the

Administrator receives the submittal, provided the Administrator has

not disapproved the request in writing before the end of the 60-day

period. The Administrator shall record the change by attaching a copy

of the addendum to the part 71, subpart B permit.

(iv) If the Administrator disapproves the change, he or she shall

notify the source of the reasons for the disapproval in a timely

manner. Upon receiving such notice, the source shall comply with the

terms of the permit that it had proposed to change, and thereafter the

proposed addendum shall not take effect.

(v) The process in this paragraph (c) may also be used for changes

initiated by the Administrator that meet the criteria under paragraphs

(c)(1) (i), (ii), and (iv) of this section. For such changes, the

Administrator will notify the source of the proposed change and its

effective date, and shall attach a copy of the change to the existing

permit. On the effective date of the proposed change, the source shall

comply with the provisions of the proposed change.

(vi) The permit shield under Sec. 71.25(d) may not extend to

administrative amendments processed under this paragraph (c)(2).

(d) Permit revision procedures--(1) Criteria. Permit revision

procedures shall be used for applications requesting permit revisions

that do not qualify as administrative amendments. Nothing in this

paragraph (d) shall be construed to preclude the permittee from making

changes consistent with this subpart that would render existing permit

compliance terms and conditions irrelevant.

(2) Permit revisions shall meet all requirements of this subpart,

including those for applications, public participation, and review by

affected States, as they apply to permit issuance. The Administrator

will complete review on permit revisions within 9 months after receipt

of a complete application.

(e) Reopening for cause. (1) Each issued permit shall include

provisions specifying the conditions under which the permit will be

reopened. A permit shall be reopened and revised under any of the

following circumstances:

(i) The Administrator determines that the permit contains a

material mistake or that inaccurate statements were made in

establishing the emission limits or other terms or conditions of the

permit.

(ii) The Administrator determines that the permit must be revised

to assure compliance with the alternative emission limitation.

(2) Proceedings to reopen and issue a permit shall follow the same

procedures as apply to initial permit issuance and shall affect only

those parts of the permit for which cause to reopen exists.

(3) Reopenings under paragraph (e)(1) of this section shall not be

initiated before a notice of such intent is provided to the early

reductions source by the Administrator. Such notice will be provided at

least 30 days in advance of the date that the permit is to be reopened,

except that the Administrator may provide a shorter time period in the

case of an emergency.

(f) EPA review under State programs for issuing specialty permits.

(1) If the Administrator approves a State program for the

implementation of this subpart, the State program shall require that

the Administrator receive a copy of each permit application (including

any application for permit revision) each proposed permit, and each

final permit issued pursuant to this subpart. The State program may

require that the applicant provide a copy of any permit application

directly to the Administrator.

(2) The Administrator will object to the issuance of any proposed

permit determined by the Administrator not to be in compliance with

requirements under this subpart or part 63 of this chapter. If the

Administrator objects in writing within 45 days of receipt of a

proposed permit and all necessary supporting documentation, the State

shall not issue the permit.

(3) Any EPA objection to a proposed permit will include a statement

of the Administrator's reasons for objection and a description of the

terms and conditions that the permit must include to respond to the

objections. The Administrator will provide the permit applicant a copy

of the objection.

(4) Failure of the State to do any of the following also shall

constitute grounds for an objection:

(i) Comply with paragraph (f)(1) of this section;

(ii) Submit any information necessary to review adequately the

proposed permit; or

(iii) Process the permit under procedures approved to meet

paragraph (f) of this section.

(5) If the State fails, within 90 days after the date of an

objection under paragraph (f)(2) of this section, to revise and submit

a proposed permit in response to the objection, the Administrator will

issue or deny the permit in accordance with the requirements of this

subpart.

(6) Public petitions to the Administrator. Within 60 days after

expiration of the Administrator's 45-day review period, any person may

petition the Administrator in writing to make an objection. Any such

petition shall be based only on objections to the permit that were

raised with reasonable specificity during the public comment period

provided for and consistent with Sec. 71.27, unless the petitioner

demonstrates that it was impracticable to raise such objections within

such period, or unless the grounds for such objection arose after such

period. If the Administrator objects to the permit as a result of a

petition filed under this paragraph, the permitting authority shall not

issue the permit until EPA's objection has been resolved, except that a

petition for review does not stay the effectiveness of a permit or its

requirements if the permit was issued after the end of the 45-day

review period and prior to an objection. If the permitting authority

has issued a permit prior to receipt of an EPA objection under this

paragraph, the Administrator will revise, terminate, or revoke such

permit, and shall do so consistent with the procedures in 40 CFR

70.7(g)(4) or (g)(5)(i) except in unusual circumstances, and the

permitting authority may thereafter issue only a revised permit that

satisfies EPA's objection. In any case, the source will not be in

violation of the requirement to have submitted a timely and complete

application.

Sec. 71.27 Public participation and appeal.

All permit proceedings, including preparation of draft permits,

initial permit issuance, permit revisions, and granted appeals, shall

provide adequate procedures for public participation, including notice,

opportunity for comment, a hearing if requested, and administrative

appeal. Specific procedures shall include the following:

(a) Revision, revocation and reissuance, or termination of permits.

(1) Permits may be revised, revoked and reissued, or terminated either

at the request of any interested person (including the permittee) or

upon the Administrator's initiative. However, permits may only be

revised, revoked and reissued, or terminated for the reasons specified

in Secs. 71.25(a)(7) and 71.26(e). All requests shall be in writing and

shall contain facts or reasons supporting the request.

(2) If the Administrator decides the request is not justified, he

or she shall send the requester a brief written response giving a

reason for the decision. Denials of requests for revision, revocation

and reissuance, or termination are not subject to public notice,

comment, or hearings. Denials by the Administrator may be informally

appealed to the Environmental Appeals Board by a letter briefly setting

forth the relevant facts. The Board may direct the Administrator to

begin revision, revocation and reissuance, or termination proceedings

under paragraph (a)(3) of this section. The appeal shall be considered

denied if the Board takes no action within 60 days after receiving it.

This informal appeal is, under 42 U.S.C. 307, a prerequisite to seeking

judicial review of EPA action in denying a request for revision,

revocation and reissuance, or termination.

(3) (i) Except in the case of administrative amendment of a permit,

if the Administrator tentatively decides to revise or revoke and

reissue a permit under Secs. 71.25(a)(7) and 71.26(e), he or she shall

prepare a draft permit under paragraph (b) of this section

incorporating the proposed changes. The Administrator may request

additional information and, in the case of a revised permit, shall

require the submission of an updated application. In the case of

revoked and reissued permits, the Administrator shall require the

submission of a new application.

(ii) In a permit revision under this subsection, only those

conditions to be revised shall be reopened when a new draft permit is

prepared. All other aspects of the existing permit shall remain in

effect for the duration of the unrevised permit. When a permit is

revoked and reissued under this subsection, the entire permit is

reopened just as if the permit had expired and was being reissued.

During any revocation and reissuance proceeding the permittee shall

comply with all conditions of the existing permit until a new final

permit is reissued.

(4) If the Administrator tentatively decides to terminate a permit

under Secs. 71.25(a)(7) and 71.26(e), he or she shall issue a notice of

intent to terminate. A notice of intent to terminate is a type of draft

permit which follows the same procedures as any draft permit prepared

under paragraph (b) of this section. A notice of intent to terminate

shall not be issued if the Administrator and the permittee agree to

termination in the course of transferring permit responsibility to an

approved State under Sec. 71.21(e).

(5) Any request by the permittee for revision to an existing permit

shall be treated as a permit application and shall be processed in

accordance with all requirements of Sec. 71.24.

(b) Draft permits. (1) Once an application is complete, the

Administrator shall tentatively decide whether to prepare a draft

permit or to deny the application.

(2) If the Administrator tentatively decides to deny the permit

application, he or she shall issue a notice of intent to deny. A notice

of intent to deny the permit application is a type of draft permit

which follows the same procedures as any draft permit prepared under

this subsection. If the Administrator's final decision is that the

tentative decision to deny the permit application was incorrect, he or

she shall withdraw the notice of intent to deny and proceed to prepare

a draft permit under paragraph (b)(4) of this section.

(3) If the Administrator decides to prepare a draft permit, he or

she shall prepare a draft permit that contains the permit conditions

under Sec. 71.25.

(4) All draft permits prepared under this subsection shall be

publicly noticed and made available for public comment. The

Administrator shall give notice of opportunity for a public hearing,

issue a final decision and respond to comments. For all early

reductions permits, an appeal may be taken under paragraph (l) of this

section.

(c) Statement of basis. The Administrator shall prepare a statement

of basis for every draft permit. The statement of basis shall briefly

describe the derivation of the conditions of the draft permit and the

reasons for them or, in the case of notices of intent to deny or

terminate, reasons supporting the tentative decision. The statement of

basis shall be sent to the applicant and, on request, to any other

person.

(d) Public notice of permit actions and public comment period.--(1)

Scope. (i) The Administrator shall give public notice that the

following actions have occurred:

(A) A permit application has been tentatively denied under

paragraph (b)(2) of this section;

(B) A draft permit has been prepared under paragraph (b)(3) of this

section;

(C) A hearing has been scheduled under paragraph (f) of this

section;

(D) An appeal has been granted under paragraph (l)(3) of this

section.

(ii) No public notice is required in the case of administrative

permit amendments, or when a request for permit revision, revocation

and reissuance, or termination has been denied under paragraph (a)(2)

of this section. Written notice of that denial shall be given to the

requester and to the permittee.

(iii) Public notices may describe more than one permit or permit

action.

(2) Timing. (i) Public notice of the preparation of a draft permit

or permit revision (including a notice of intent to deny a permit or

permit revision application) shall allow at least 30 days for public

comment.

(ii) Public notice of a public hearing shall be given at least 30

days before the hearing. (Public notice of the hearing may be given at

the same time as public notice of the draft permit or permit revision

and the two notices may be combined.)

(iii) The Administrator shall provide such notice and opportunity

for participation to Affected States on or before the time that the

Administrator provides this notice to the public.

(3) Methods. Public notice of activities described in paragraph

(d)(1)(i) of this section shall be given by the following methods:

(i) By mailing a copy of a notice to the following persons (any

person otherwise entitled to receive notice under this paragraph (d)

may waive his or her rights to receive notice for any permit):

(A) The applicant;

(B) Any other agency which the Administrator knows has issued or is

required to issue any other permit under the Clean Air Act for the same

facility or activity;

(C) Affected States and Indian Tribes;

(D) Affected State and local air pollution control agencies, the

chief executives of the city and county where the early reductions

source is located, any comprehensive regional land use planning agency

and any State, Federal Land Manager, or Indian Governing Body whose

lands may be affected by emissions from the regulated activity;

(E) Persons on a mailing list developed by:

(1) Including those who request in writing to be on the list;

(2) Soliciting persons for ``area lists'' from participants in past

permit proceedings in that area; and

(3) Notifying the public of the opportunity to be put on the

mailing list through periodic publication in the public press and in

such publications as Regional and State funded newsletters,

environmental bulletins, or State law journals. (The Administrator may

update the mailing list from time to time by requesting written

indication of continued interest from those listed. The Administrator

may delete from the list the name of any person who fails to respond to

such a request.);

(F) Any unit of local government with authority for regulating air

pollution and having jurisdiction over the area where the early

reductions source is located and to each State agency having any

authority for regulating air pollution under State law with respect to

the operation of such source.

(ii) By publication of a notice in a daily or weekly newspaper of

general circulation within the area affected by the early reductions

source.

(iii) By any other method reasonably calculated to give actual

notice of the action in question to the persons potentially affected by

it, including press releases or any other forum or medium to elicit

public participation.

(4) Contents--(i) All public notices. All public notices issued

under this subpart shall contain the following minimum information:

(A) The name and address of the Administrator or the

Administrator's designated agent processing the permit;

(B) The name and address of the permittee or permit applicant and,

if different, of the facility regulated by the permit;

(C) The activity or activities involved in the permit action;

(D) The emissions change involved in any permit revision;

(E) The name, address and telephone number of a person from whom

interested persons may obtain additional information, including copies

of the draft permit, the application, all relevant supporting

materials, and all other materials available to the Administrator that

are relevant to the permit decision;

(F) A brief description of the comment procedures required by

paragraphs (e) and (f) of this section and the time and place of any

hearing that will be held, including a statement of procedures to

request a hearing (unless a hearing has already been scheduled) and

other procedures by which the public may participate in the final

permit decision; and

(G) Any additional information considered necessary or proper.

(ii) Public notices for hearings. In addition to the general public

notice described in paragraph (d)(4)(i) of this section, the public

notice of a hearing under paragraph (f) of this section shall contain

the following information:

(A) Reference to the date of previous public notices relating to

the permit;

(B) Date, time, and place of the hearing; and

(C) A brief description of the nature and purpose of the hearing,

including the applicable rules and procedures.

(5) In addition to the general public notice described in paragraph

(d)(4)(i) of this section, all persons identified in paragraphs

(d)(3)(i)(A), (B), and (C) of this section shall be mailed a copy of

the fact sheet or statement of basis, the permit application (if any),

and the draft permit (if any).

(e) Public comments and requests for public hearings. During the

public comment period provided under paragraph (a) of this section, any

interested person may submit written comments on the draft permit or

permit revision and may request a public hearing, if no hearing has

already been scheduled. A request for a public hearing shall be in

writing and shall state the nature of the issues proposed to be raised

at the hearing. All comments shall be considered in making the final

decision and shall be answered as provided in paragraph (j) of this

section. The Administrator will keep a record of the commenters and of

the issues raised during the public participation process, and such

records shall be available to the public.

(f) Public hearings. (1)(i) The Administrator shall hold a hearing

whenever he or she finds, on the basis of requests, a significant

degree of public interest in a draft permit or permit revision.

(ii) The Administrator may also hold a public hearing at his or her

discretion, whenever, for instance, such a hearing might clarify one or

more issues involved in the permit decision.

(iii) Public notice of the hearing shall be given as specified in

paragraph (d) of this section.

(2) Whenever a public hearing is held, the Administrator shall

designate a Presiding Officer for the hearing who shall be responsible

for its scheduling and orderly conduct.

(3) Any person may submit oral or written statements and data

concerning the draft permit or permit revision. Reasonable limits may

be set upon the time allowed for oral statements, and the submission of

statements in writing may be required. The public comment period under

paragraph (d) of this section shall be automatically extended to the

close of any public hearing under this subsection. The hearing officer

may also extend the comment period by so stating at the hearing.

(4) A tape recording or written transcript of the hearing shall be

made available to the public.

(g) Obligation to raise issues and provide information during the

public comment period. All persons, including applicants, who believe

any condition of a draft permit is inappropriate or that the

Administrator's tentative decision to deny an application, terminate a

permit, or prepare a draft permit is inappropriate, must raise all

reasonably ascertainable issues and submit all reasonably ascertainable

arguments supporting their position by the close of the public comment

period (including any public hearing). Any supporting materials which

are submitted shall be included in full and may not be incorporated by

reference, unless they are already part of the administrative record in

the same proceeding, or consist of State or Federal statutes and

regulations, EPA documents of general applicability, or other generally

available reference materials. Commenters shall make supporting

materials not already included in the administrative record available

to EPA as directed by the Administrator. (A comment period longer than

30 days may be necessary to give commenters a reasonable opportunity to

comply with the requirements of this paragraph (g). Additional time

shall be granted to the extent that a commenter who requests additional

time demonstrates the need for such time.)

(h) Reopening of the public comment period. (1)(i) The

Administrator may order the public comment period reopened if the

procedures of this paragraph (h) could expedite the decisionmaking

process. When the public comment period is reopened under this

paragraph (h), all persons, including applicants, who believe any

condition of a draft permit is inappropriate or that the

Administrator's tentative decision to deny an application, terminate a

permit, or prepare a draft permit is inappropriate, must submit all

reasonably available factual grounds supporting their position,

including all supporting material, by a date, not less than 60 days

after public notice under paragraph (h)(1)(ii) of this section, set by

the Administrator. Thereafter, any person may file a written response

to the material filed by any other person, by a date, not less than 20

days after the date set for filing of the material, set by the

Administrator.

(ii) Public notice of any comment period under this paragraph shall

identify the issues to which the requirements of paragraph (h)(1)(i) of

this section shall apply.

(iii) On his or her own motion or on the request of any person, the

Administrator may direct that the requirements of paragraph (h)(1)(i)

of this section shall apply during the initial comment period where it

reasonably appears that issuance of the permit will be contested and

that applying the requirements of paragraph (h)(1)(i) of this section

will substantially expedite the decisionmaking process. The notice of

the draft permit shall state whenever this has been done.

(iv) A comment period of longer than 60 days will often be

necessary in complicated proceedings to give commenters a reasonable

opportunity to comply with the requirements of this subsection.

Commenters may request longer comment periods and they shall be granted

to the extent they appear necessary.

(2) If any data, information, or arguments submitted during the

public comment period appear to raise substantial new questions

concerning a permit, the Administrator may take one or more of the

following actions:

(i) Prepare a new draft permit, appropriately modified;

(ii) Prepare a revised statement of basis, a fact sheet or revised

fact sheet, and reopen the comment period; or

(iii) Reopen or extend the comment period to give interested

persons an opportunity to comment on the information or arguments

submitted.

(3) Comments filed during the reopened comment period shall be

limited to the substantial new questions that caused its reopening. The

public notice shall define the scope of the reopening.

(4) Public notice of any of the above actions shall be issued under

paragraph (d) of this section.

(i) Issuance and effective date of permit. (1) After the close of

the public comment period on a draft permit, the Administrator shall

issue a final permit decision. The Administrator shall notify the

applicant and each person who has submitted written comments or

requested notice of the final permit decision. This notice shall

include reference to the procedures for appealing a decision on a

permit. For the purposes of this paragraph (i), a final permit decision

means a final decision to issue, deny, revise, revoke and reissue, or

terminate a permit.

(2) A final permit decision shall become effective 30 days after

the service of notice of the decision unless:

(i) A later effective date is specified in the decision; or

(ii) No comments requested a change in the draft permit, in which

case the permit shall become effective immediately upon issuance.

(j) Response to comments. (1) At the time that any final permit

decision is issued, the Administrator shall issue a response to

comments. This response shall:

(i) Specify which provisions, if any, of the draft permit have been

changed in the final permit decision, and the reasons for the change;

and

(ii) Briefly describe and respond to all significant comments on

the draft permit raised during the public comment period, or during any

hearing.

(2) Any documents cited in the response to comments shall be

included in the administrative record for the final permit decision as

defined in paragraph (k) of this section. If new points are raised or

new material supplied during the public comment period, EPA may

document its response to those matters by adding new materials to the

administrative record.

(3) The response to comments shall be available to the public.

(4) The Administrator will notify in writing any Affected State of

any refusal to accept recommendations for the permit that the State

submitted during the public or Affected State review period.

(k) Administrative record for final permit. (1) The Administrator

shall base final permit decisions on the administrative record defined

in this paragraph (k).

(2) The administrative record for any final permit shall consist

of:

(i) All comments received during the public comment period,

including any extension or reopening;

(ii) The tape or transcript of any hearing(s) held;

(iii) Any written material submitted at such a hearing;

(iv) The response to comments required by paragraph (j) of this

section and any new materials placed in the record under paragraph (j)

of this section;

(v) Other documents contained in the supporting file for the

permit;

(vi) The final permit;

(vii) The application and any supporting data furnished by the

applicant;

(viii) The draft permit or notice of intent to deny the application

or to terminate the permit;

(ix) The statement of basis for the draft permit;

(x) All documents cited in the statement of basis; and

(xi) Other documents contained in the supporting file for the draft

permit.

(3) The additional documents required under paragraph (k)(2) of

this section should be added to the record as soon as possible after

their receipt or publication by EPA. The record shall be complete on

the date the final permit is issued.

(4) This section applies to all final permits.

(5) Material readily available at the issuing Regional Office, or

published materials which are generally available and which are

included in the administrative record under the standards of paragraph

(j) of this section (``response to comments''), need not be physically

included in the same file as the rest of the record as long as it is

specifically referred to in the statement of basis or fact sheet or in

the response to comments.

(l) Appeal of permits. (1) Within 30 days after a final permit

decision has been issued, any person who filed comments on the draft

permit or participated in the public hearing may petition the

Environmental Appeals Board to review any condition of the permit

decision. Any person who failed to file comments or failed to

participate in the public hearing on the draft permit may petition for

administrative review only to the extent of the changes from the draft

to the final permit decision. The 30-day period within which a person

may request review under this subsection begins with the service of

notice of the Administrator's action unless a later date is specified

in that notice. The petition shall include a statement of the reasons

supporting that review, including a demonstration that any issues

raised were raised during the public comment period (including any

public hearing) to the extent required by these regulations unless the

petitioner demonstrates that it was impracticable to raise such

objections within such period or unless the grounds for such objection

arose after such period, and, when appropriate, a showing that the

condition in question is based on:

(i) A finding of fact or conclusion of law which is clearly

erroneous; or

(ii) An exercise of discretion or an important policy consideration

which the Environmental Appeals Board should, in its discretion,

review.

(2) The Board may also decide on its initiative to review any

condition of any permit issued under this subpart. The Board must act

under this paragraph within 30 days of the service date of notice of

the Administrator's action.

(3) Within a reasonable time following the filing of the petition

for review, the Board shall issue an order either granting or denying

the petition for review. To the extent review is denied, the conditions

of the final permit decision become final agency action. Public notice

of any grant of review by the Board under paragraph (l) (1) or (2) of

this section shall be given as provided in paragraph (d) of this

section. Public notice shall set forth a briefing schedule for the

appeal and shall state that any interested person may file an amicus

brief. Notice of denial of review shall be sent only to applicant and

to the person(s) requesting review.

(4) A petition to the Board under paragraph (l)(1) of this section

is, under 42 U.S.C. 307(b), a prerequisite to the seeking of judicial

review of the final agency action.

(5) For purposes of judicial review, final agency action occurs

when a final permit is issued or denied by EPA and agency review

procedures are exhausted. A final permit decision shall be issued by

the Administrator:

(i) When the Board issues notice to the parties that review has

been denied;

(ii) When the Board issues a decision on the merits of the appeal

and the decision does not include a remand of the proceedings; or

(iii) Upon the completion of remand proceedings if the proceedings

are remanded, unless the Board's remand order specifically provides

that appeal of the remand decision will be required to exhaust

administrative remedies.

(6) Neither the filing of a petition for review of any condition of

the permit or permit decision nor the granting of an appeal by the

Environmental Appeals Board shall stay the effect of any contested

permit or permit condition.

(m) Computation of time. (1) Any time period scheduled to begin on

the occurrence of an act or event shall begin on the day after the act

or event.

(2) Any time period scheduled to begin before the occurrence of an

act or event shall be computed so that the period ends on the day

before the act or event, except as otherwise provided.

(3) If the final day of any time period falls on a weekend or legal

holiday, the time period shall be extended to the next working day.

(4) Whenever a party or interested person has the right or is

required to act within a prescribed period after the service of notice

or other paper upon him or her by mail, 3 days shall be added to the

prescribed time.

[FR Doc. 94-28292 Filed 11-18-94; 8:45 am]

BILLING CODE 6560-50-P