[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1999 Edition]
[From the U.S. Government Printing Office]
40
Protection of Environment
[[Page i]]
PARTS 64 TO 71
Revised as of July 1, 1999
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1999
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1999
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 40:
Chapter I--Environmental Protection Agency
(Continued) 3
Finding Aids:
Material Approved for Incorporation by Reference.......... 181
Table of CFR Titles and Chapters.......................... 183
Alphabetical List of Agencies Appearing in the CFR........ 201
List of CFR Sections Affected............................. 211
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 40 CFR 64.1 refers
to title 40, part 64,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
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Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 1999.
[[Page ix]]
THIS TITLE
Title 40--Protection of Environment is composed of twenty-four
volumes. The parts in these volumes are arranged in the following order:
parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-End),
parts 53-59, part 60, parts 61-62, part 63 (63.1-63.1199), part 63
(63.1200-End), parts 64-71, parts 72-80, parts 81-85, part 86, parts 87-
135, parts 136-149, parts 150-189, parts 190-259, parts 260-265, parts
266-299, parts 300-399, parts 400-424, parts 425-699, parts 700-789, and
part 790 to End. The contents of these volumes represent all current
regulations codified under this title of the CFR as of July 1, 1999.
Chapter I--Environmental Protection Agency appears in all twenty-
four volumes. A Pesticide Tolerance Commodity/Chemical Index appears in
parts 150-189. A Toxic Substances Chemical--CAS Number Index appears in
parts 700-789 and part 790 to End. Redesignation Tables appear in the
volumes containing parts 50-51, parts 150-189, and parts 700-789.
Regulations issued by the Council on Environmental Quality appear in the
volume containing part 790 to End. The OMB control numbers for title 40
appear in Sec. 9.1 of this chapter.
For this volume, Lisa N. Morris was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 40--PROTECTION OF ENVIRONMENT
(This book contains parts 64-71)
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Part
chapter i--Environmental Protection Agency (Continued)...... 64
[[Page 3]]
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
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SUBCHAPTER C--AIR PROGRAMS (CONTINUED)
Part Page
64 Compliance assurance monitoring............. 5
65
[Reserved]
66 Assessment and collection of noncompliance
penalties by EPA........................ 16
67 EPA approval of State noncompliance penalty
program................................. 29
68 Chemical accident prevention provisions..... 36
69 Special exemptions from requirements of the
Clean Air Act........................... 73
70 State operating permit programs............. 85
71 Federal operating permit programs........... 124
Editorial Note: Subchapter C--Air Programs is contained in volumes 40
CFR parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-End), parts
53-59, part 60, parts 61-62, part 63 (63.1-63.1199), part 63 (63.1200-
End), parts 64-71, parts 72-80, parts 81-85, part 86, and parts 87-135.
[[Page 5]]
SUBCHAPTER C--AIR PROGRAMS (Continued)
PART 64--COMPLIANCE ASSURANCE MONITORING--Table of Contents
Sec.
64.1 Definitions.
64.2 Applicability.
64.3 Monitoring design criteria.
64.4 Submittal requirements.
64.5 Deadlines for submittals.
64.6 Approval of monitoring.
64.7 Operation of approved monitoring.
64.8 Quality improvement plan (QIP) requirements.
64.9 Reporting and recordkeeping requirements.
64.10 Savings provisions.
Authority: 42 U.S.C. 7414 and 7661-7661f.
Source: 62 FR 54940, Oct. 22, 1997, unless otherwise noted.
Sec. 64.1 Definitions.
The following definitions apply to this part. Except as specifically
provided in this section, terms used in this part retain the meaning
accorded them under the applicable provisions of the Act.
Act means the Clean Air Act, as amended by Pub.L. 101-549, 42 U.S.C.
7401, et seq.
Applicable requirement shall have the same meaning as provided under
part 70 of this chapter.
Capture system means the equipment (including but not limited to
hoods, ducts, fans, and booths) used to contain, capture and transport a
pollutant to a control device.
Continuous compliance determination method means a method, specified
by the applicable standard or an applicable permit condition, which:
(1) Is used to determine compliance with an emission limitation or
standard on a continuous basis, consistent with the averaging period
established for the emission limitation or standard; and
(2) Provides data either in units of the standard or correlated
directly with the compliance limit.
Control device means equipment, other than inherent process
equipment, that is used to destroy or remove air pollutant(s) prior to
discharge to the atmosphere. The types of equipment that may commonly be
used as control devices include, but are not limited to, fabric filters,
mechanical collectors, electrostatic precipitators, inertial separators,
afterburners, thermal or catalytic incinerators, adsorption devices
(such as carbon beds), condensers, scrubbers (such as wet collection and
gas absorption devices), selective catalytic or non-catalytic reduction
systems, flue gas recirculation systems, spray dryers, spray towers,
mist eliminators, acid plants, sulfur recovery plants, injection systems
(such as water, steam, ammonia, sorbent or limestone injection), and
combustion devices independent of the particular process being conducted
at an emissions unit (e.g., the destruction of emissions achieved by
venting process emission streams to flares, boilers or process heaters).
For purposes of this part, a control device does not include passive
control measures that act to prevent pollutants from forming, such as
the use of seals, lids, or roofs to prevent the release of pollutants,
use of low-polluting fuel or feedstocks, or the use of combustion or
other process design features or characteristics. If an applicable
requirement establishes that particular equipment which otherwise meets
this definition of a control device does not constitute a control device
as applied to a particular pollutant-specific emissions unit, then that
definition shall be binding for purposes of this part.
Data means the results of any type of monitoring or method,
including the results of instrumental or non-instrumental monitoring,
emission calculations, manual sampling procedures, recordkeeping
procedures, or any other form of information collection procedure used
in connection with any type of monitoring or method.
Emission limitation or standard means any applicable requirement
that constitutes an emission limitation, emission standard, standard of
performance or means of emission limitation as defined under the Act. An
emission limitation or standard may be expressed in terms of the
pollutant, expressed either
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as a specific quantity, rate or concentration of emissions (e.g., pounds
of SO2 per hour, pounds of SO2 per million British
thermal units of fuel input, kilograms of VOC per liter of applied
coating solids, or parts per million by volume of SO2) or as
the relationship of uncontrolled to controlled emissions (e.g.,
percentage capture and destruction efficiency of VOC or percentage
reduction of SO2). An emission limitation or standard may
also be expressed either as a work practice, process or control device
parameter, or other form of specific design, equipment, operational, or
operation and maintenance requirement. For purposes of this part, an
emission limitation or standard shall not include general operation
requirements that an owner or operator may be required to meet, such as
requirements to obtain a permit, to operate and maintain sources in
accordance with good air pollution control practices, to develop and
maintain a malfunction abatement plan, to keep records, submit reports,
or conduct monitoring.
Emissions unit shall have the same meaning as provided under part 70
of this chapter.
Exceedance shall mean a condition that is detected by monitoring
that provides data in terms of an emission limitation or standard and
that indicates that emissions (or opacity) are greater than the
applicable emission limitation or standard (or less than the applicable
standard in the case of a percent reduction requirement) consistent with
any averaging period specified for averaging the results of the
monitoring.
Excursion shall mean a departure from an indicator range established
for monitoring under this part, consistent with any averaging period
specified for averaging the results of the monitoring.
Inherent process equipment means equipment that is necessary for the
proper or safe functioning of the process, or material recovery
equipment that the owner or operator documents is installed and operated
primarily for purposes other than compliance with air pollution
regulations. Equipment that must be operated at an efficiency higher
than that achieved during normal process operations in order to comply
with the applicable emission limitation or standard is not inherent
process equipment. For the purposes of this part, inherent process
equipment is not considered a control device.
Major source shall have the same meaning as provided under part 70
or 71 of this chapter.
Monitoring means any form of collecting data on a routine basis to
determine or otherwise assess compliance with emission limitations or
standards. Recordkeeping may be considered monitoring where such records
are used to determine or assess compliance with an emission limitation
or standard (such as records of raw material content and usage, or
records documenting compliance with work practice requirements). The
conduct of compliance method tests, such as the procedures in appendix A
to part 60 of this chapter, on a routine periodic basis may be
considered monitoring (or as a supplement to other monitoring), provided
that requirements to conduct such tests on a one-time basis or at such
times as a regulatory authority may require on a non-regular basis are
not considered monitoring requirements for purposes of this paragraph.
Monitoring may include one or more than one of the following data
collection techniques, where appropriate for a particular circumstance:
(1) Continuous emission or opacity monitoring systems.
(2) Continuous process, capture system, control device or other
relevant parameter monitoring systems or procedures, including a
predictive emission monitoring system.
(3) Emission estimation and calculation procedures (e.g., mass
balance or stoichiometric calculations).
(4) Maintenance and analysis of records of fuel or raw materials
usage.
(5) Recording results of a program or protocol to conduct specific
operation and maintenance procedures.
(6) Verification of emissions, process parameters, capture system
parameters, or control device parameters using portable or in situ
measurement devices.
(7) Visible emission observations.
(8) Any other form of measuring, recording, or verifying on a
routine basis
[[Page 7]]
emissions, process parameters, capture system parameters, control device
parameters or other factors relevant to assessing compliance with
emission limitations or standards.
Owner or operator means any person who owns, leases, operates,
controls or supervises a stationary source subject to this part.
Part 70 or 71 permit shall have the same meaning as provided under
part 70 or 71 of this chapter, provided that it shall also refer to a
permit issued, renewed, amended, revised, or modified under any federal
permit program promulgated under title V of the Act.
Part 70 or 71 permit application shall mean an application
(including any supplement to a previously submitted application) that is
submitted by the owner or operator in order to obtain a part 70 or 71
permit.
Permitting authority shall have the same meaning as provided under
part 70 or 71 of this chapter.
Pollutant-specific emissions unit means an emissions unit considered
separately with respect to each regulated air pollutant.
Potential to emit shall have the same meaning as provided under part
70 or 71 of this chapter, provided that it shall be applied with respect
to an ``emissions unit'' as defined under this part in addition to a
``stationary source'' as provided under part 70 or 71 of this chapter.
Predictive emission monitoring system (PEMS) means a system that
uses process and other parameters as inputs to a computer program or
other data reduction system to produce values in terms of the applicable
emission limitation or standard.
Regulated air pollutant shall have the same meaning as provided
under part 70 or 71 of this chapter.
Sec. 64.2 Applicability.
(a) General applicability. Except for backup utility units that are
exempt under paragraph (b)(2) of this section, the requirements of this
part shall apply to a pollutant-specific emissions unit at a major
source that is required to obtain a part 70 or 71 permit if the unit
satisfies all of the following criteria:
(1) The unit is subject to an emission limitation or standard for
the applicable regulated air pollutant (or a surrogate thereof), other
than an emission limitation or standard that is exempt under paragraph
(b)(1) of this section;
(2) The unit uses a control device to achieve compliance with any
such emission limitation or standard; and
(3) The unit has potential pre-control device emissions of the
applicable regulated air pollutant that are equal to or greater than 100
percent of the amount, in tons per year, required for a source to be
classified as a major source. For purposes of this paragraph,
``potential pre-control device emissions'' shall have the same meaning
as ``potential to emit,'' as defined in Sec. 64.1, except that emission
reductions achieved by the applicable control device shall not be taken
into account.
(b) Exemptions--(1) Exempt emission limitations or standards. The
requirements of this part shall not apply to any of the following
emission limitations or standards:
(i) Emission limitations or standards proposed by the Administrator
after November 15, 1990 pursuant to section 111 or 112 of the Act.
(ii) Stratospheric ozone protection requirements under title VI of
the Act.
(iii) Acid Rain Program requirements pursuant to sections 404, 405,
406, 407(a), 407(b), or 410 of the Act.
(iv) Emission limitations or standards or other applicable
requirements that apply solely under an emissions trading program
approved or promulgated by the Administrator under the Act that allows
for trading emissions within a source or between sources.
(v) An emissions cap that meets the requirements specified in
Sec. 70.4(b)(12) or Sec. 71.6(a)(13)(iii) of this chapter.
(vi) Emission limitations or standards for which a part 70 or 71
permit specifies a continuous compliance determination method, as
defined in Sec. 64.1. The exemption provided in this paragraph
(b)(1)(vi) shall not apply if the applicable compliance method includes
an assumed control device emission reduction factor that could be
affected by the actual operation and maintenance of the control device
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(such as a surface coating line controlled by an incinerator for which
continuous compliance is determined by calculating emissions on the
basis of coating records and an assumed control device efficiency factor
based on an initial performance test; in this example, this part would
apply to the control device and capture system, but not to the remaining
elements of the coating line, such as raw material usage).
(2) Exemption for backup utility power emissions units. The
requirements of this part shall not apply to a utility unit, as defined
in Sec. 72.2 of this chapter, that is municipally-owned if the owner or
operator provides documentation in a part 70 or 71 permit application
that:
(i) The utility unit is exempt from all monitoring requirements in
part 75 (including the appendices thereto) of this chapter;
(ii) The utility unit is operated for the sole purpose of providing
electricity during periods of peak electrical demand or emergency
situations and will be operated consistent with that purpose throughout
the part 70 or 71 permit term. The owner or operator shall provide
historical operating data and relevant contractual obligations to
document that this criterion is satisfied; and
(iii) The actual emissions from the utility unit, based on the
average annual emissions over the last three calendar years of operation
(or such shorter time period that is available for units with fewer than
three years of operation) are less than 50 percent of the amount in tons
per year required for a source to be classified as a major source and
are expected to remain so.
Sec. 64.3 Monitoring design criteria.
(a) General criteria. To provide a reasonable assurance of
compliance with emission limitations or standards for the anticipated
range of operations at a pollutant-specific emissions unit, monitoring
under this part shall meet the following general criteria:
(1) The owner or operator shall design the monitoring to obtain data
for one or more indicators of emission control performance for the
control device, any associated capture system and, if necessary to
satisfy paragraph (a)(2) of this section, processes at a pollutant-
specific emissions unit. Indicators of performance may include, but are
not limited to, direct or predicted emissions (including visible
emissions or opacity), process and control device parameters that affect
control device (and capture system) efficiency or emission rates, or
recorded findings of inspection and maintenance activities conducted by
the owner or operator.
(2) The owner or operator shall establish an appropriate range(s) or
designated condition(s) for the selected indicator(s) such that
operation within the ranges provides a reasonable assurance of ongoing
compliance with emission limitations or standards for the anticipated
range of operating conditions. Such range(s) or condition(s) shall
reflect the proper operation and maintenance of the control device (and
associated capture system), in accordance with applicable design
properties, for minimizing emissions over the anticipated range of
operating conditions at least to the level required to achieve
compliance with the applicable requirements. The reasonable assurance of
compliance will be assessed by maintaining performance within the
indicator range(s) or designated condition(s). The ranges shall be
established in accordance with the design and performance requirements
in this section and documented in accordance with the requirements in
Sec. 64.4. If necessary to assure that the control device and associated
capture system can satisfy this criterion, the owner or operator shall
monitor appropriate process operational parameters (such as total
throughput where necessary to stay within the rated capacity for a
control device). In addition, unless specifically stated otherwise by an
applicable requirement, the owner or operator shall monitor indicators
to detect any bypass of the control device (or capture system) to the
atmosphere, if such bypass can occur based on the design of the
pollutant-specific emissions unit.
(3) The design of indicator ranges or designated conditions may be:
(i) Based on a single maximum or minimum value if appropriate (e.g.,
maintaining condenser temperatures a certain number of degrees below the
condensation temperature of the applicable compound(s) being processed)
or
[[Page 9]]
at multiple levels that are relevant to distinctly different operating
conditions (e.g., high versus low load levels).
(ii) Expressed as a function of process variables (e.g., an
indicator range expressed as minimum to maximum pressure drop across a
venturi throat in a particulate control scrubber).
(iii) Expressed as maintaining the applicable parameter in a
particular operational status or designated condition (e.g., position of
a damper controlling gas flow to the atmosphere through a by-pass duct).
(iv) Established as interdependent between more than one indicator.
(b) Performance criteria. The owner or operator shall design the
monitoring to meet the following performance criteria:
(1) Specifications that provide for obtaining data that are
representative of the emissions or parameters being monitored (such as
detector location and installation specifications, if applicable).
(2) For new or modified monitoring equipment, verification
procedures to confirm the operational status of the monitoring prior to
the date by which the owner or operator must conduct monitoring under
this part as specified in Sec. 64.7(a). The owner or operator shall
consider the monitoring equipment manufacturer's requirements or
recommendations for installation, calibration, and start-up operation.
(3) Quality assurance and control practices that are adequate to
ensure the continuing validity of the data. The owner or operator shall
consider manufacturer recommendations or requirements applicable to the
monitoring in developing appropriate quality assurance and control
practices.
(4) Specifications for the frequency of conducting the monitoring,
the data collection procedures that will be used (e.g., computerized
data acquisition and handling, alarm sensor, or manual log entries based
on gauge readings), and, if applicable, the period over which discrete
data points will be averaged for the purpose of determining whether an
excursion or exceedance has occurred.
(i) At a minimum, the owner or operator shall design the period over
which data are obtained and, if applicable, averaged consistent with the
characteristics and typical variability of the pollutant-specific
emissions unit (including the control device and associated capture
system). Such intervals shall be commensurate with the time period over
which a change in control device performance that would require actions
by owner or operator to return operations within normal ranges or
designated conditions is likely to be observed.
(ii) For all pollutant-specific emissions units with the potential
to emit, calculated including the effect of control devices, the
applicable regulated air pollutant in an amount equal to or greater than
100 percent of the amount, in tons per year, required for a source to be
classified as a major source, for each parameter monitored, the owner or
operator shall collect four or more data values equally spaced over each
hour and average the values, as applicable, over the applicable
averaging period as determined in accordance with paragraph (b)(4)(i) of
this section. The permitting authority may approve a reduced data
collection frequency, if appropriate, based on information presented by
the owner or operator concerning the data collection mechanisms
available for a particular parameter for the particular pollutant-
specific emissions unit (e.g., integrated raw material or fuel analysis
data, noninstrumental measurement of waste feed rate or visible
emissions, use of a portable analyzer or an alarm sensor).
(iii) For other pollutant-specific emissions units, the frequency of
data collection may be less than the frequency specified in paragraph
(b)(4)(ii) of this section but the monitoring shall include some data
collection at least once per 24-hour period (e.g., a daily inspection of
a carbon adsorber operation in conjunction with a weekly or monthly
check of emissions with a portable analyzer).
(c) Evaluation factors. In designing monitoring to meet the
requirements in paragraphs (a) and (b) of this section, the owner or
operator shall take into account site-specific factors including the
applicability of existing monitoring equipment and procedures,
[[Page 10]]
the ability of the monitoring to account for process and control device
operational variability, the reliability and latitude built into the
control technology, and the level of actual emissions relative to the
compliance limitation.
(d) Special criteria for the use of continuous emission, opacity or
predictive monitoring systems. (1) If a continuous emission monitoring
system (CEMS), continuous opacity monitoring system (COMS) or predictive
emission monitoring system (PEMS) is required pursuant to other
authority under the Act or state or local law, the owner or operator
shall use such system to satisfy the requirements of this part.
(2) The use of a CEMS, COMS, or PEMS that satisfies any of the
following monitoring requirements shall be deemed to satisfy the general
design criteria in paragraphs (a) and (b) of this section, provided that
a COMS may be subject to the criteria for establishing indicator ranges
under paragraph (a) of this section:
(i) Section 51.214 and appendix P of part 51 of this chapter;
(ii) Section 60.13 and appendix B of part 60 of this chapter;
(iii) Section 63.8 and any applicable performance specifications
required pursuant to the applicable subpart of part 63 of this chapter;
(iv) Part 75 of this chapter;
(v) Subpart H and appendix IX of part 266 of this chapter; or
(vi) If an applicable requirement does not otherwise require
compliance with the requirements listed in the preceding paragraphs
(d)(2)(i) through (v) of this section, comparable requirements and
specifications established by the permitting authority.
(3) The owner or operator shall design the monitoring system subject
to this paragraph (d) to:
(i) Allow for reporting of exceedances (or excursions if applicable
to a COMS used to assure compliance with a particulate matter standard),
consistent with any period for reporting of exceedances in an underlying
requirement. If an underlying requirement does not contain a provision
for establishing an averaging period for the reporting of exceedances or
excursions, the criteria used to develop an averaging period in (b)(4)
of this section shall apply; and
(ii) Provide an indicator range consistent with paragraph (a) of
this section for a COMS used to assure compliance with a particulate
matter standard. If an opacity standard applies to the pollutant-
specific emissions unit, such limit may be used as the appropriate
indicator range unless the opacity limit fails to meet the criteria in
paragraph (a) of this section after considering the type of control
device and other site-specific factors applicable to the pollutant-
specific emissions unit.
Sec. 64.4 Submittal requirements.
(a) The owner or operator shall submit to the permitting authority
monitoring that satisfies the design requirements in Sec. 64.3. The
submission shall include the following information:
(1) The indicators to be monitored to satisfy Secs. 64.3(a)(1)-(2);
(2) The ranges or designated conditions for such indicators, or the
process by which such indicator ranges or designated conditions shall be
established;
(3) The performance criteria for the monitoring to satisfy
Sec. 64.3(b); and
(4) If applicable, the indicator ranges and performance criteria for
a CEMS, COMS or PEMS pursuant to Sec. 64.3(d).
(b) As part of the information submitted, the owner or operator
shall submit a justification for the proposed elements of the
monitoring. If the performance specifications proposed to satisfy
Sec. 64.3(b)(2) or (3) include differences from manufacturer
recommendations, the owner or operator shall explain the reasons for the
differences between the requirements proposed by the owner or operator
and the manufacturer's recommendations or requirements. The owner or
operator also shall submit any data supporting the justification, and
may refer to generally available sources of information used to support
the justification (such as generally available air pollution engineering
manuals, or EPA or permitting authority publications on appropriate
monitoring for various types of control devices or capture systems). To
justify the appropriateness of the monitoring elements proposed, the
owner
[[Page 11]]
or operator may rely in part on existing applicable requirements that
establish the monitoring for the applicable pollutant-specific emissions
unit or a similar unit. If an owner or operator relies on presumptively
acceptable monitoring, no further justification for the appropriateness
of that monitoring should be necessary other than an explanation of the
applicability of such monitoring to the unit in question, unless data or
information is brought forward to rebut the assumption. Presumptively
acceptable monitoring includes:
(1) Presumptively acceptable or required monitoring approaches,
established by the permitting authority in a rule that constitutes part
of the applicable implementation plan required pursuant to title I of
the Act, that are designed to achieve compliance with this part for
particular pollutant-specific emissions units;
(2) Continuous emission, opacity or predictive emission monitoring
systems that satisfy applicable monitoring requirements and performance
specifications as specified in Sec. 64.3(d);
(3) Excepted or alternative monitoring methods allowed or approved
pursuant to part 75 of this chapter;
(4) Monitoring included for standards exempt from this part pursuant
to Sec. 64.2(b)(1)(i) or (vi) to the extent such monitoring is
applicable to the performance of the control device (and associated
capture system) for the pollutant-specific emissions unit; and
(5) Presumptively acceptable monitoring identified in guidance by
EPA. Such guidance will address the requirements under Secs. 64.4(a),
(b), and (c) to the extent practicable.
(c)(1) Except as provided in paragraph (d) of this section, the
owner or operator shall submit control device (and process and capture
system, if applicable) operating parameter data obtained during the
conduct of the applicable compliance or performance test conducted under
conditions specified by the applicable rule. If the applicable rule does
not specify testing conditions or only partially specifies test
conditions, the performance test generally shall be conducted under
conditions representative of maximum emissions potential under
anticipated operating conditions at the pollutant-specific emissions
unit. Such data may be supplemented, if desired, by engineering
assessments and manufacturer's recommendations to justify the indicator
ranges (or, if applicable, the procedures for establishing such
indicator ranges). Emission testing is not required to be conducted over
the entire indicator range or range of potential emissions.
(2) The owner or operator must document that no changes to the
pollutant-specific emissions unit, including the control device and
capture system, have taken place that could result in a significant
change in the control system performance or the selected ranges or
designated conditions for the indicators to be monitored since the
performance or compliance tests were conducted.
(d) If existing data from unit-specific compliance or performance
testing specified in paragraph (c) of this section are not available,
the owner or operator:
(1) Shall submit a test plan and schedule for obtaining such data in
accordance with paragraph (e) of this section; or
(2) May submit indicator ranges (or procedures for establishing
indicator ranges) that rely on engineering assessments and other data,
provided that the owner or operator demonstrates that factors specific
to the type of monitoring, control device, or pollutant-specific
emissions unit make compliance or performance testing unnecessary to
establish indicator ranges at levels that satisfy the criteria in
Sec. 64.3(a).
(e) If the monitoring submitted by the owner or operator requires
installation, testing, or other necessary activities prior to use of the
monitoring for purposes of this part, the owner or operator shall
include an implementation plan and schedule for installing, testing and
performing any other appropriate activities prior to use of the
monitoring. The implementation plan and schedule shall provide for use
of the monitoring as expeditiously as practicable after approval of the
monitoring in the part 70 or 71 permit pursuant to Sec. 64.6, but in no
case shall the schedule for completing installation
[[Page 12]]
and beginning operation of the monitoring exceed 180 days after approval
of the permit.
(f) If a control device is common to more than one pollutant-
specific emissions unit, the owner or operator may submit monitoring for
the control device and identify the pollutant-specific emissions units
affected and any process or associated capture device conditions that
must be maintained or monitored in accordance with Sec. 64.3(a) rather
than submit separate monitoring for each pollutant-specific emissions
unit.
(g) If a single pollutant-specific emissions unit is controlled by
more than one control device similar in design and operation, the owner
or operator may submit monitoring that applies to all the control
devices and identify the control devices affected and any process or
associated capture device conditions that must be maintained or
monitored in accordance with Sec. 64.3(a) rather than submit a separate
description of monitoring for each control device.
Sec. 64.5 Deadlines for submittals.
(a) Large pollutant-specific emissions units. For all pollutant-
specific emissions units with the potential to emit (taking into account
control devices to the extent appropriate under the definition of this
term in Sec. 64.1) the applicable regulated air pollutant in an amount
equal to or greater than 100 percent of the amount, in tons per year,
required for a source to be classified as a major source, the owner or
operator shall submit the information required under Sec. 64.4 at the
following times:
(1) On or after April 20, 1998, the owner or operator shall submit
information as part of an application for an initial part 70 or 71
permit if, by that date, the application either:
(i) Has not been filed; or
(ii) Has not yet been determined to be complete by the permitting
authority.
(2) On or after April 20, 1998, the owner or operator shall submit
information as part of an application for a significant permit revision
under part 70 or 71 of this chapter, but only with respect to those
pollutant-specific emissions units for which the proposed permit
revision is applicable.
(3) The owner or operator shall submit any information not submitted
under the deadlines set forth in paragraphs (a)(1) and (2) of this
section as part of the application for the renewal of a part 70 or 71
permit.
(b) Other pollutant-specific emissions units. For all other
pollutant-specific emissions units subject to this part and not subject
to Sec. 64.5(a), the owner or operator shall submit the information
required under Sec. 64.4 as part of an application for a renewal of a
part 70 or 71 permit.
(c) The effective date for the requirement to submit information
under Sec. 64.4 shall be as specified pursuant to paragraphs (a)-(b) of
this section and a permit reopening to require the submittal of
information under this section shall not be required pursuant to
Sec. 70.7(f)(1)(i) of this chapter, provided, however, that, if a part
70 or 71 permit is reopened for cause by EPA or the permitting authority
pursuant to Sec. 70.7(f)(1)(iii) or (iv), or Sec. 71.7(f) or (g), the
applicable agency may require the submittal of information under this
section for those pollutant-specific emissions units that are subject to
this part and that are affected by the permit reopening.
(d) Prior to approval of monitoring that satisfies this part, the
owner or operator is subject to the requirements of
Sec. 70.6(a)(3)(i)(B).
Sec. 64.6 Approval of monitoring.
(a) Based on an application that includes the information submitted
in accordance with Sec. 64.5, the permitting authority shall act to
approve the monitoring submitted by the owner or operator by confirming
that the monitoring satisfies the requirements in Sec. 64.3.
(b) In approving monitoring under this section, the permitting
authority may condition the approval on the owner or operator collecting
additional data on the indicators to be monitored for a pollutant-
specific emissions unit, including required compliance or performance
testing, to confirm the ability of the monitoring to provide data that
are sufficient to satisfy the requirements of this part and to confirm
the appropriateness of an indicator
[[Page 13]]
range(s) or designated condition(s) proposed to satisfy Sec. 64.3(a)(2)
and (3) and consistent with the schedule in Sec. 64.4(e).
(c) If the permitting authority approves the proposed monitoring,
the permitting authority shall establish one or more permit terms or
conditions that specify the required monitoring in accordance with
Sec. 70.6(a)(3)(i) of this chapter. At a minimum, the permit shall
specify:
(1) The approved monitoring approach that includes all of the
following:
(i) The indicator(s) to be monitored (such as temperature, pressure
drop, emissions, or similar parameter);
(ii) The means or device to be used to measure the indicator(s)
(such as temperature measurement device, visual observation, or CEMS);
and
(iii) The performance requirements established to satisfy
Sec. 64.3(b) or (d), as applicable.
(2) The means by which the owner or operator will define an
exceedance or excursion for purposes of responding to and reporting
exceedances or excursions under Secs. 64.7 and 64.8 of this part. The
permit shall specify the level at which an excursion or exceedance will
be deemed to occur, including the appropriate averaging period
associated with such exceedance or excursion. For defining an excursion
from an indicator range or designated condition, the permit may either
include the specific value(s) or condition(s) at which an excursion
shall occur, or the specific procedures that will be used to establish
that value or condition. If the latter, the permit shall specify
appropriate notice procedures for the owner or operator to notify the
permitting authority upon any establishment or reestablishment of the
value.
(3) The obligation to conduct the monitoring and fulfill the other
obligations specified in Secs. 64.7 through 64.9 of this part.
(4) If appropriate, a minimum data availability requirement for
valid data collection for each averaging period, and, if appropriate, a
minimum data availability requirement for the averaging periods in a
reporting period.
(d) If the monitoring proposed by the owner or operator requires
installation, testing or final verification of operational status, the
part 70 or 71 permit shall include an enforceable schedule with
appropriate milestones for completing such installation, testing, or
final verification consistent with the requirements in Sec. 64.4(e).
(e) If the permitting authority disapproves the proposed monitoring,
the following applies:
(1) The draft or final permit shall include, at a minimum,
monitoring that satisfies the requirements of Sec. 70.6(a)(3)(i)(B);
(2) The permitting authority shall include in the draft or final
permit a compliance schedule for the source owner to submit monitoring
that satisfies Secs. 64.3 and 64.4, but in no case shall the owner or
operator submit revised monitoring more than 180 days from the date of
issuance of the draft or final permit; and
(3) If the source owner or operator does not submit the monitoring
in accordance with the compliance schedule as required in paragraph
(e)(2) of this section or if the permitting authority disapproves the
monitoring submitted, the source owner or operator shall be deemed not
in compliance with part 64, unless the source owner or operator
successfully challenges the disapproval.
Sec. 64.7 Operation of approved monitoring.
(a) Commencement of operation. The owner or operator shall conduct
the monitoring required under this part upon issuance of a part 70 or 71
permit that includes such monitoring, or by such later date specified in
the permit pursuant to Sec. 64.6(d).
(b) Proper maintenance. At all times, the owner or operator shall
maintain the monitoring, including but not limited to, maintaining
necessary parts for routine repairs of the monitoring equipment.
(c) Continued operation. Except for, as applicable, monitoring
malfunctions, associated repairs, and required quality assurance or
control activities (including, as applicable, calibration checks and
required zero and span adjustments), the owner or operator shall conduct
all monitoring in continuous operation (or shall collect data at all
required intervals) at all times that
[[Page 14]]
the pollutant-specific emissions unit is operating. Data recorded during
monitoring malfunctions, associated repairs, and required quality
assurance or control activities shall not be used for purposes of this
part, including data averages and calculations, or fulfilling a minimum
data availability requirement, if applicable. The owner or operator
shall use all the data collected during all other periods in assessing
the operation of the control device and associated control system. A
monitoring malfunction is any sudden, infrequent, not reasonably
preventable failure of the monitoring to provide valid data. Monitoring
failures that are caused in part by poor maintenance or careless
operation are not malfunctions.
(d) Response to excursions or exceedances. (1) Upon detecting an
excursion or exceedance, the owner or operator shall restore operation
of the pollutant-specific emissions unit (including the control device
and associated capture system) to its normal or usual manner of
operation as expeditiously as practicable in accordance with good air
pollution control practices for minimizing emissions. The response shall
include minimizing the period of any startup, shutdown or malfunction
and taking any necessary corrective actions to restore normal operation
and prevent the likely recurrence of the cause of an excursion or
exceedance (other than those caused by excused startup or shutdown
conditions). Such actions may include initial inspection and evaluation,
recording that operations returned to normal without operator action
(such as through response by a computerized distribution control
system), or any necessary follow-up actions to return operation to
within the indicator range, designated condition, or below the
applicable emission limitation or standard, as applicable.
(2) Determination of whether the owner or operator has used
acceptable procedures in response to an excursion or exceedance will be
based on information available, which may include but is not limited to,
monitoring results, review of operation and maintenance procedures and
records, and inspection of the control device, associated capture
system, and the process.
(e) Documentation of need for improved monitoring. After approval of
monitoring under this part, if the owner or operator identifies a
failure to achieve compliance with an emission limitation or standard
for which the approved monitoring did not provide an indication of an
excursion or exceedance while providing valid data, or the results of
compliance or performance testing document a need to modify the existing
indicator ranges or designated conditions, the owner or operator shall
promptly notify the permitting authority and, if necessary, submit a
proposed modification to the part 70 or 71 permit to address the
necessary monitoring changes. Such a modification may include, but is
not limited to, reestablishing indicator ranges or designated
conditions, modifying the frequency of conducting monitoring and
collecting data, or the monitoring of additional parameters.
Sec. 64.8 Quality improvement plan (QIP) requirements.
(a) Based on the results of a determination made under
Sec. 64.7(d)(2), the Administrator or the permitting authority may
require the owner or operator to develop and implement a QIP. Consistent
with Sec. 64.6(c)(3), the part 70 or 71 permit may specify an
appropriate threshold, such as an accumulation of exceedances or
excursions exceeding 5 percent duration of a pollutant-specific
emissions unit's operating time for a reporting period, for requiring
the implementation of a QIP. The threshold may be set at a higher or
lower percent or may rely on other criteria for purposes of indicating
whether a pollutant-specific emissions unit is being maintained and
operated in a manner consistent with good air pollution control
practices.
(b) Elements of a QIP:
(1) The owner or operator shall maintain a written QIP, if required,
and have it available for inspection.
(2) The plan initially shall include procedures for evaluating the
control performance problems and, based on the results of the evaluation
procedures, the owner or operator shall modify the plan to include
procedures for
[[Page 15]]
conducting one or more of the following actions, as appropriate:
(i) Improved preventive maintenance practices.
(ii) Process operation changes.
(iii) Appropriate improvements to control methods.
(iv) Other steps appropriate to correct control performance.
(v) More frequent or improved monitoring (only in conjunction with
one or more steps under paragraphs (b)(2)(i) through (iv) of this
section).
(c) If a QIP is required, the owner or operator shall develop and
implement a QIP as expeditiously as practicable and shall notify the
permitting authority if the period for completing the improvements
contained in the QIP exceeds 180 days from the date on which the need to
implement the QIP was determined.
(d) Following implementation of a QIP, upon any subsequent
determination pursuant to Sec. 64.7(d)(2) the Administrator or the
permitting authority may require that an owner or operator make
reasonable changes to the QIP if the QIP is found to have:
(1) Failed to address the cause of the control device performance
problems; or
(2) Failed to provide adequate procedures for correcting control
device performance problems as expeditiously as practicable in
accordance with good air pollution control practices for minimizing
emissions.
(e) Implementation of a QIP shall not excuse the owner or operator
of a source from compliance with any existing emission limitation or
standard, or any existing monitoring, testing, reporting or
recordkeeping requirement that may apply under federal, state, or local
law, or any other applicable requirements under the Act.
Sec. 64.9 Reporting and recordkeeping requirements.
(a) General reporting requirements. (1) On and after the date
specified in Sec. 64.7(a) by which the owner or operator must use
monitoring that meets the requirements of this part, the owner or
operator shall submit monitoring reports to the permitting authority in
accordance with Sec. 70.6(a)(3)(iii) of this chapter.
(2) A report for monitoring under this part shall include, at a
minimum, the information required under Sec. 70.6(a)(3)(iii) of this
chapter and the following information, as applicable:
(i) Summary information on the number, duration and cause (including
unknown cause, if applicable) of excursions or exceedances, as
applicable, and the corrective actions taken;
(ii) Summary information on the number, duration and cause
(including unknown cause, if applicable) for monitor downtime incidents
(other than downtime associated with zero and span or other daily
calibration checks, if applicable); and
(iii) A description of the actions taken to implement a QIP during
the reporting period as specified in Sec. 64.8. Upon completion of a
QIP, the owner or operator shall include in the next summary report
documentation that the implementation of the plan has been completed and
reduced the likelihood of similar levels of excursions or exceedances
occurring.
(b) General recordkeeping requirements. (1) The owner or operator
shall comply with the recordkeeping requirements specified in
Sec. 70.6(a)(3)(ii) of this chapter. The owner or operator shall
maintain records of monitoring data, monitor performance data,
corrective actions taken, any written quality improvement plan required
pursuant to Sec. 64.8 and any activities undertaken to implement a
quality improvement plan, and other supporting information required to
be maintained under this part (such as data used to document the
adequacy of monitoring, or records of monitoring maintenance or
corrective actions).
(2) Instead of paper records, the owner or operator may maintain
records on alternative media, such as microfilm, computer files,
magnetic tape disks, or microfiche, provided that the use of such
alternative media allows for expeditious inspection and review, and does
not conflict with other applicable recordkeeping requirements.
Sec. 64.10 Savings provisions.
(a) Nothing in this part shall:
(1) Excuse the owner or operator of a source from compliance with
any existing emission limitation or standard, or
[[Page 16]]
any existing monitoring, testing, reporting or recordkeeping requirement
that may apply under federal, state, or local law, or any other
applicable requirements under the Act. The requirements of this part
shall not be used to justify the approval of monitoring less stringent
than the monitoring which is required under separate legal authority and
are not intended to establish minimum requirements for the purpose of
determining the monitoring to be imposed under separate authority under
the Act, including monitoring in permits issued pursuant to title I of
the Act. The purpose of this part is to require, as part of the issuance
of a permit under title V of the Act, improved or new monitoring at
those emissions units where monitoring requirements do not exist or are
inadequate to meet the requirements of this part.
(2) Restrict or abrogate the authority of the Administrator or the
permitting authority to impose additional or more stringent monitoring,
recordkeeping, testing, or reporting requirements on any owner or
operator of a source under any provision of the Act, including but not
limited to sections 114(a)(1) and 504(b), or state law, as applicable.
(3) Restrict or abrogate the authority of the Administrator or
permitting authority to take any enforcement action under the Act for
any violation of an applicable requirement or of any person to take
action under section 304 of the Act.
PART 65 [RESERVED]
PART 66--ASSESSMENT AND COLLECTION OF NONCOMPLIANCE PENALTIES BY EPA--Table of Contents
Subpart A--Purpose and Scope
Sec.
66.1 Applicability and effective date.
66.2 Program description.
66.3 Definitions.
66.4 Limitation on review of regulations.
66.5 Savings clause.
66.6 Effect of litigation; time limits.
Subpart B--Notice of Noncompliance
66.11 Issuance of notices of noncompliance.
66.12 Content of notices of noncompliance.
66.13 Duties of source owner or operator upon receipt of a notice of
noncompliance.
Subpart C--Calculation of Noncompliance Penalties
66.21 How to calculate the penalty.
66.22 Contracting out penalty calculation.
66.23 Interim recalculation of penalty.
Subpart D--Exemption Requests; Revocation of Exemptions
66.31 Exemptions based on an order, extension or suspension.
66.32 De Minimis exemptions.
66.33 De Minimis exemptions: malfunctions.
66.34 Termination of exemptions.
66.35 Revocation of exemptions.
Subpart E--Decisions on Exemption Requests and Challenges to Notices of
Noncompliance
66.41 Decision on petitions.
66.42 Procedure for hearings.
66.43 Final decision; submission of penalty calculation.
Subpart F--Review of Penalty Calculation
66.51 Action upon receipt of penalty calculation.
66.52 Petitions for reconsideration of calculation.
66.53 Decisions on petitions.
66.54 Procedures for hearing.
Subpart G--Payment
66.61 Duty to pay.
66.62 Method of payment.
66.63 Nonpayment penalty.
Subpart H--Compliance and Final Adjustment
66.71 Determination of compliance.
66.72 Additional payment or reimbursement.
66.73 Petition for reconsideration and procedure for hearing.
66.74 Payment or reimbursement.
Subpart I--Final Action
66.81 Final action.
Subpart J--Supplemental Rules for Formal Adjudicatory Hearings
66.91 Applicability of supplemental rules.
66.92 Commencement of hearings.
66.93 Time limits.
66.94 Presentation of evidence.
66.95 Decisions of Presiding Officer; appeal to the Administrator.
[[Page 17]]
Appendix A to Part 66--Technical Support Document [Note]
Appendix B to Part 66--Instruction Manual [Note]
Appendix C to Part 66--Computer Program [Note]
Authority: Sec. 120, Clean Air Act, as amended, 42 U.S.C. 7420.
Source: 45 FR 50110, July 28, 1980, unless otherwise noted.
Subpart A--Purpose and Scope
Sec. 66.1 Applicability and effective date.
(a) This part applies to all proceedings for the assessment by EPA
of a noncompliance penalty as provided by section 120 of the Clean Air
Act. This penalty is designed to recover the economic advantage which
might otherwise accrue to a source by reason of its failure to comply
with air pollution control standards after receipt of a notice of
noncompliance.
(b) These regulations shall be effective October 27, 1980.
Sec. 66.2 Program description.
This part sets forth the procedures by which EPA will administer the
noncompliance penalty provisions of section 120 of the Clean Air Act.
Subpart A describes the scope of the part, defines key terms and states
the manner of operation of these provisions subpart B states which
sources of air pollution are subject to these penalties and the form and
substance of the notice of noncompliance. Subpart C and the accompanying
Technical Support Document and Manual state how a source must compute
the penalty which it owes. Subpart D describes the conditions under
which an exemption from the penalty may be available, and subpart E sets
forth the procedures for requesting such an exemption. Subpart F states
how EPA will review penalties calculated by sources under subpart C, and
subpart G describes the method of payment. Subpart H provides for
adjustment of the penalty after the source has come into compliance and
the actual costs of doing so are known. Finally, subpart I states which
actions under these regulations are subject to judicial review and on
what conditions, and subpart J provides supplemental procedures for
adjudicatory hearings.
Sec. 66.3 Definitions.
In this part and part 67:
(a) Act means the Clean Air Act, 42 U.S.C. 7401 et seq. as amended
on August 7, 1977, except where the context specifically indicates
otherwise.
(b) Affiliated entity means a person who directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is
under common control with the owner or operator of a source.
(c) Applicable legal requirements means any of the following:
(1) In the case of any major source, any emission limitation,
emission standard, or compliance schedule under any EPA-approved State
implementation plan (regardless of whether the source is subject to a
Federal or State consent decree);
(2) In the case of any source, an emission limitation, emission
standard, standard of performance, or other requirement (including, but
not limited to, work practice standards) established under section 111
or 112 of the Act;
(3) In the case of a source that is subject to a federal or
federally approved state judicial consent decree or EPA approved
extension, order, or suspension, any interim emission control
requirement or schedule of compliance under that consent decree,
extension, order or suspension;
(4) In the case of a nonferrous smelter which has received a primary
nonferrous smelter order issued or approved by EPA under Section 119 of
the Act, any interim emission control requirement (including a
requirement relating to the use of supplemental or intermittent
controls) or schedule of compliance under that order.
(d) Approved Section 120 program means a State program to assess and
collect Section 120 penalties that has been approved by the
Administrator.
(e) Computer program means the computer program used to calculate
noncompliance penalties under section 120 of the Clean Air Act. This
computer program appears as appendix C to these regulations.
(f) Control (including the terms controlling, controlled by, and
under common control with) means the power to direct
[[Page 18]]
or cause the direction of the management and policies of a person or
organization, whether by the ownership of stock, voting rights, by
contract, or otherwise.
(g) Environmental Appeals Board shall mean the Board within the
Agency described in Sec. 1.25 of this title. The Administrator delegates
authority to the Environmental Appeals Board to issue final decisions in
appeals filed under this part. Appeals directed to the Administrator,
rather than to the Environmental Appeals Board, will not be considered.
This delegation of authority to the Environmental Appeals Board does not
preclude the Environmental Appeals Board from referring an appeal or a
motion filed under this part to the Administrator for decision when the
Environmental Appeals Board, in its discretion, deems it appropriate to
do so. When an appeal or motion is referred to the Administrator, all
parties shall be so notified and the rules in this part referring to the
Environmental Appeals Board shall be interpreted as referring to the
Administrator.
(h) Major stationary source means any stationary facility or source
of air pollutants which directly emits, or has the potential to emit,
one hundred tons per year or more of any air pollutant regulated by EPA
under the Clean Air Act.
(i) Manual means the Noncompliance Penalties Instruction Manual
which accompanies these regulations. This Manual appears as appendix B
to these regulations.
(j) Owner or operator means any person who owns, leases, operates or
supervises a facility, building, structure or installation which emits
or has the potential to emit any air pollutant regulated by EPA under
the Act.
(k) Potential to emit means the capability at maximum design
capacity to emit a pollutant after the application of air pollution
control equipment. Annual potential shall be based on the larger of the
maximum annual rated capacity of the stationary source assuming
continuous operation, or on a projection of actual annual emissions.
Enforceable permit conditions on the type of materials combusted or
processed may be used in determining the annual potential. Fugitive
emissions, to the extent quantifiable, will be considered in determining
annual potential for those stationary sources whose fugitive emissions
are regulated by the applicable state implementation plan.
(l) Source means any source of air pollution subject to applicable
legal requirements as defined in paragraph (c).
(m) Technical Support Document means the Noncompliance Penalties
Technical Support Document which accompanies these regulations. The
Technical Support Document appears as appendix A to these regulations.
All other terms are defined as they are in the Act.
[45 FR 50110, July 28, 1980, as amended at 57 FR 5328, Feb. 13, 1992]
Sec. 66.4 Limitation on review of regulations.
No applicable legal requirement, which could have been reviewed or
challenged by means of the timely filing of an appropriate petition, no
provision of this part or part 67 or appendices A, B or C, may be
challenged, reviewed or re-examined in any hearing conducted under this
part or part 67. This limitation on review includes, but is not limited
to:
(a) Arguments that the statute is more or less restrictive than the
regulations, e.g., that exemptions other than those provided herein
should be granted.
(b) Arguments that the economic model does not accurately calculate
the economic benefits of noncompliance, or that parameters, terms and
conditions other than those provided for in the model should be used or
that evidence other than that described in the Technical Support
Document for establishing inputs should be considered.
Sec. 66.5 Savings clause.
Proceedings under these regulations for imposition of a penalty
under section 120 are in addition to any other proceedings related to
permits, orders, payments, sanctions or other requirements of State or
Federal law. No action under this part or part 67 shall affect in any
way any administrative,
[[Page 19]]
civil or criminal enforcement proceeding brought under any provision of
the Clean Air Act or State or local law.
Sec. 66.6 Effect of litigation; time limits.
(a) The existence of any litigation on the validity of these
regulations shall not affect the authority of the Agency to issue
notices of noncompliance or to conduct subsequent administrative
proceedings under parts 66 and 67.
(b) Failure of the Environmental Appeals Board or the Presiding
Officer at a hearing to meet any of the time limits contained in this
part 66 and part 67 of this chapter shall not affect the validity of any
proceeding under these regulations.
(c) The filing of any petition for reconsideration under this part
or part 67 or the institution of EPA review of a State determination
under part 67 shall not toll the accrual of noncompliance penalties. The
penalty will be calculated from the date on which the source owner or
operator receives a notice of noncompliance.
[45 FR 50110, July 28, 1980, as amended at 57 FR 5329, Feb. 13, 1992]
Subpart B--Notice of Noncompliance
Sec. 66.11 Issuance of notices of noncompliance.
(a) The Administrator shall issue a notice of noncompliance to the
owner or operator of any source which he determines is in violation of
applicable legal requirements and which is located in a State without an
approved section 120 program.
(b) The Administrator shall send a notice of noncompliance to the
owner or operator of any source located in a State with an approved
section 120 program when he determines as provided in part 67 that the
source is in violation of applicable legal requirements and the State
has failed to send a notice of noncompliance to it, or has failed to
pursue diligently any subsequent steps for the assessment or collection
of the penalty.
(c) Failure of EPA or a State to issue a notice of noncompliance
within 30 days after discovery of a violation shall not affect the
obligation of a source owner or operator to pay a noncompliance penalty
but shall affect the date from which the penalty is calculated. The
penalty shall be calculated from the earliest date that the owner or
operator of the source received a notice of noncompliance under this
section, whether issued by EPA or the State.
Sec. 66.12 Content of notices of noncompliance.
(a) Each notice of noncompliance shall be in writing and shall
include:
(1) A specific reference to each applicable legal requirement of
which the source is in violation;
(2) A brief statement of the factual basis for the finding of
violation, together with a reference to any supporting materials and a
statement of when and where they may be inspected;
(3) Instructions on calculating the amount of the penalty owed and
the schedule for payments. Such instructions shall include (i) a
statement of the date from which penalties should be calculated and (ii)
a copy of the Technical Support Document and the Manual;
(4) Notice of the right to petition for a hearing to challenge the
finding of noncompliance or to claim an exemption; and
(5) Notice that the penalty continues to accrue during the pendency
of any hearings granted under this part or Part 67.
(b) Each notice of noncompliance shall be transmitted to the source
owner or operator either by personal service or by registered or
certified mail, return receipt requested.
Sec. 66.13 Duties of source owner or operator upon receipt of a notice of noncompliance.
(a) Within forty-five days after receiving a notice of noncompliance
a source owner or operator shall either:
(1) Calculate the amount of the penalty owed and the appropriate
quarterly payment schedule, as provided in the Technical Support
Document and Instruction Manual, and transmit that calculation, together
with supporting data sufficient to allow verification of the penalty
calculation, to the Administrator; or
[[Page 20]]
(2) Submit a petition for reconsideration, alleging that the source
is not in violation of applicable legal requirements or that the source
owner or operator is entitled to an exemption pursuant to Secs. 66.31
through 66.33, or both. A source owner or operator must present both
grounds in the petition if he wishes to preserve a claim to an exemption
in the event that the source is found to be in violation. Issues
relating to the existence of a violation or entitlement to an exemption
not raised in the petition shall be deemed waived.
(b) Any submittal pursuant to this subsection shall specify the
identity of the person responsible for the payment of any noncompliance
penalty, and to whom any reimbursement, if necessary, shall be sent.
(c) A source owner or operator may amend any petition for
reconsideration pursuant to paragraph (a) of this section within 45 days
from receipt of a notice of noncompliance. Amendment of such petition
after 45 days will be permitted only if based on unforeseeable
conditions occurring after termination of the 45 day period, or upon
consent of the Administrator.
Subpart C--Calculation of Noncompliance Penalties
Sec. 66.21 How to calculate the penalty.
(a) All noncompliance penalties shall be calculated in accordance
with the Technical Support Document and the Manual.
(b) Where the Administrator determines that no existing technology
or other emissions control method results in emission levels which
satisfy the applicable legal requirement, the penalty calculation shall
be based on the cost of the capital equipment, operation and maintenance
practices, or other methods of control which best approximates the
degree of control required. In such a case, the Administrator may
include in the penalty the costs of participation in an EPA approved
research and development program where he determines that such
participation would be appropriate. Information on appropriate research
and development programs will be available from the regional offices or
from the Office of Research and Development.
Sec. 66.22 Contracting out penalty calculation.
Upon the failure of a source owner or operator, who does not submit
a petition for reconsideration as provided in Sec. 66.13(a)(2), to
submit the information described in Sec. 66.13(a)(1) within 45 days of
receipt of a notice of noncompliance, or upon submission of incorrect
information as determined pursuant to Sec. 66.51, the Administrator may
enter into a contract with any qualified person who is not an affiliated
entity and who has no financial interest in the owner or operator of the
source to assist in determining the amount of the penalty assessment or
payment schedule with respect to such source owner or operator. The cost
of this contract may be added to the penalty to be assessed against the
owner or operator of the source. The data used in calculating the
penalty shall be furnished to the source owner or operator at the time
that the penalty calculation is reported.
Sec. 66.23 Interim recalculation of penalty.
(a) The Administrator, upon concluding that a previously approved
penalty calculation no longer is accurate, may:
(1) Request, in writing, that the source owner or operator submit a
revised calculation in the form specified in Sec. 66.13(a). The
Administrator shall respond to any information submitted in accordance
with the provisions of Sec. 66.51.
(2) Notify the source owner or operator, in writing, that the
penalty has been recalculated based upon information in the
Administrator's possession. The source owner or operator shall respond
as provided in Sec. 66.52.
(b) If a source owner or operator believes that, because of changed
circumstances, a penalty calculation which has been accepted by EPA no
longer is accurate, he may submit a revised penalty calculation and
schedule to the Administrator. The revised calculation shall be in the
form specified in Sec. 66.13(a)(1). The Administrator shall respond in
accordance with the provisions of Sec. 66.51. The decision to accept the
interim calculation or to grant a
[[Page 21]]
hearing on this issue shall be solely within the discretion of the
Administrator.
Subpart D--Exemption Requests; Revocation of Exemptions
Sec. 66.31 Exemptions based on an order, extension or suspension.
(a) A source owner or operator who would otherwise be subject to a
noncompliance penalty will be exempted from that penalty during the
period for which, and upon a demonstration that, its noncompliance with
applicable legal requirements is or was due solely to;
(1) A conversion by such source from the burning of petroleum
products or natural gas, or both, as the permanent primary energy source
to the burning of coal pursuant to an order under section 113(d)(5) or
section 119 of the Act as in effect before August 7, 1977.
(2) In the case of a coal-burning source, the issuance of a
prohibition to that source against burning petroleum products or natural
gas, or both, by means of an order under sections 2(a) and (b) of the
Energy Supply and Environmental Coordination Act of 1974, the Powerplant
and Industrial Fuel Use Act, or under any legislation which amends or
supersedes these provisions, Provided, That the source had received an
extension under the second sentence of section 119(c)(1) of the Act as
in effect before August 7, 1977.
(3) The use of innovative technology by the source owner or operator
pursuant to an enforcement order under section 113(d)(4) of the Act.
(4) An inability to comply with an applicable legal requirement
resulting from reasons entirely beyond the control of the owner or
operator of such source or of any affiliated entity, Provided, That
(i) The source owner or operator has received an order under section
113(d) (or an order under section 113 issued before August 7, 1977) or a
federal or EPA-approved State judicial decree or order which has the
effect of permitting a delay in complying with the legal requirement at
issue, and
(ii) That the source owner or operator meets the requirements of
paragraphs (c) and (d) of this section.
(5) The existence of an energy or employment emergency demonstrated
by issuance of an order under section 110(f) or 110(g) of the Act,
unless such order is disapproved by EPA.
(b) To qualify for an exemption under this section, the source owner
or operator must have received the order, extension or suspension or
consent decree described in the paragraph of the section pursuant to
which the exemption is claimed. No exemption may be sought which, if
granted, would exceed the terms of the relevant extension, order,
suspension, or consent decree, except as provided in paragraph (e) of
this section. No exemption may be sought which is based on a claim that
the source owner or operator is entitled to any such order, extension,
suspension, or consent decree even though it has not been issued.
(c) In any exemption claim based on paragraph (a)(4) of this
section, the source owner or operator must demonstrate:
(1) That the source owner or operator or an affiliated entity in no
manner sought, caused, encouraged or contributed to the inability; and
(2) That the source owner or operator in no way unduly delayed
negotiation for needed equipment or fuel supply or made unusual demands
not typical in its industry, or placed unusual restrictions on the
supplier, or delayed in any other manner the delivery of goods or the
completion of the necessary construction.
(d)(1) No exemption will be granted pursuant to paragraph (a)(4) of
this section unless the owner or operator of the source demonstrates
that, with respect to a situation described in paragraph (c), all
reasonable steps were taken to prevent the situation causing the
inability to comply, that procuring the needed pollution control
equipment or fuel supply was given and continues to be given the highest
possible priority in the planning and budgeting process of the owner or
operator of the source, and that alternative sources of equipment and
fuel have been explored without success.
(2) Any exemption granted under paragraph (a)(4) of this section
shall cease to be effective when the inability to comply ceases to be
entirely beyond
[[Page 22]]
the control of the source owner or operator as defined in this section.
(e) Except in the case of exemptions based on orders under section
113 (d)(4) or (d)(5) or suspensions under section 110(g), the
Administrator may grant an exemption with retroactive effect to the date
of the event giving rise to the section 120 predicate order, extension,
suspension, or consent decree. In such cases, the exemption from the
noncompliance penalty shall run from the date that the basis for the
exemption first occurred.
[45 FR 50110, July 20, 1980, as amended at 50 FR 36734, Sept. 9, 1985]
Sec. 66.32 De Minimis exemptions.
(a) The Administrator may, upon notice and opportunity for public
hearing, exempt the owner or operator of any source from a penalty where
he finds that a particular instance of noncompliance was de minimis in
nature and duration.
(b) A petition for an exemption on the ground that the violation
described in a notice of noncompliance was de minimis in nature and
duration may only raise issues related to entitlement to an exemption
and shall contain or be accompanied by supporting documentation. Issues
relating to entitlement to a de minimis exemption not raised in the
petition shall be deemed waived.
(c) In ruling upon such a petition, the Administrator shall
consider:
(1) The magnitude of the excess emissions and whether the source's
noncompliance is recurring or persistent;
(2) The steps the source owner or operator is taking to eliminate
the cause of the excess emissions and to minimize such emissions;
(3) Whether any significant economic savings are likely to accrue to
the owner or operator of the source as a result of the noncompliance;
(4) The character of the emissions, and their impact on ambient air
quality; and
(5) The duration of the violation.
(d) A hearing on a petition for a de minimis exemption shall be
informal. The hearing shall be scheduled upon notice to the public.
Reasonable opportunity to testify and for submission of questions by the
public to the petitioner shall be afforded. The decision of the hearing
officer will be made in writing within a reasonable period of time after
the close of the hearing.
Sec. 66.33 De Minimis exemptions: malfunctions.
(a) The Administrator may, upon notice and opportunity for a public
hearing, exempt the owner or operator of a source if he finds with
respect to a particular instance of noncompliance, that such
noncompliance was de minimis in nature and duration, and was caused
solely by a sudden and unavoidable breakdown of process or pollution
control equipment.
(b) A petition for an exemption on the ground that the violation was
de minimis and was caused by a sudden and unavoidable breakdown of
process or pollution control equipment may only raise issues related to
entitlement to an exemption and shall contain or be accompanied by
supporting documentation. Issues relating to entitlement to an exemption
that are not raised in the petition shall be deemed waived. In making
such finding the Administrator shall consider whether:
(1) The violation was de minimis in nature and duration within the
meaning of Sec. 66.32;
(2) The air pollution control equipment, process equipment, or
processes, including appropriate back-up systems, were designed, and
have been maintained and operated in a manner consistent with good
practice for minimizing emissions;
(3) Repair of the malfunctioning equipment was undertaken and
carried out in an expeditious fashion as soon as the owner or operator
knew or should have known that the malfunction existed or that
applicable emission limitations were being violated or were likely to be
violated;
(4) All practicable steps were taken to minimize the impact of the
excess emissions (including any bypass) on ambient air quality;
(5) The excess emissions were not part of a pattern indicative of
inadequate design, operation, or maintenance;
(6) Off-shift and overtime labor were utilized where necessary to
ensure that
[[Page 23]]
repairs were made as expeditiously as possible or that emissions were
minimized to the maximum extent possible; and
(7) The level of economic savings, if any, accruing to the source
owner or operator was de minimis.
(c) Any activity that could have been foreseen, avoided or planned
for, or any breakdown that could have been avoided by the exercise of
reasonable diligence shall not constitute grounds for an exemption under
this section. Such activities include, but are not limited to, sudden
breakdowns avoidable by better maintenance procedures, phasing in and
out of process equipment and routine maintenance.
(d) A hearing on any petition for an exemption based upon the
unavoidable breakdown of pollution control equipment shall be informal.
The hearing shall be scheduled upon notice to the public. Reasonable
opportunity to testify and for submission of questions by the public to
the petitioner shall be afforded. The decision of the hearing officer
will be made in writing within a reasonable period of time after the
close of the hearing.
Sec. 66.34 Termination of exemptions.
(a) Exemptions pursuant to Sec. 66.31(a) (1), (2), (3), and (5) will
cease to be effective upon termination or revocation of the order on
which the exemption is based.
(b) Exemptions pursuant to Sec. 66.31(a)(4) will cease to be
effective when the order or decree is terminated or revoked, or the
inability to comply ceases to be for reasons entirely beyond the control
of the source owner or operator as defined in Sec. 66.31(c).
(c) Exemptions granted pursuant to Sec. 66.32 or Sec. 66.33 shall
terminate at the time specified in the exemption.
(d) The Administrator shall notify the source owner or operator, in
writing, that the exemption has terminated, and shall specify the date
from which the penalty shall be calculated. The notice shall be
transmitted as required by Sec. 66.12. The source owner or operator
shall respond to this notice within 45 days of its receipt and in the
form provided in Sec. 66.13.
Sec. 66.35 Revocation of exemptions.
(a) The Administrator may upon notice and opportunity for a hearing
revoke an exemption granted to the owner or operator of any source at
any time in accordance with paragraphs (b) and (c) below.
(b) An exemption may be revoked and a penalty for the period of non-
exempted noncompliance assessed if:
(1) The grounds for the exemption no longer exist or never did
exist, or
(2) In the case of an exemption under Sec. 66.31, the source owner
or operator has failed to comply with any interim emission control
requirements or schedules of compliance (including increments of
progress) contained in the extension, order, suspension or EPA-approved
consent decree on which the exemption was based.
(c) The Administrator shall provide the source owner or operator
written notice containing the information required by Sec. 66.12 and a
statement of the reasons for revocation. The notice shall also specify
the date from which the source owner or operator must calculate a
penalty. The notice shall be transmitted as required by Sec. 66.12. The
source owner or operator shall respond to this notice within 45 days of
its receipt and in the form provided in Sec. 66.13.
Subpart E--Decisions on Exemption Requests and Challenges to Notices of
Noncompliance
Sec. 66.41 Decision on petitions.
(a) Within thirty days after receiving a petition filed under
Sec. 66.13, the Administrator shall notify the source owner or operator
in writing that:
(1) The petition demonstrates that the source owner or operator is
entitled to part or all of the relief requested and that the notice of
noncompliance is withdrawn or modified accordingly;
(2) The petition does not contain sufficient information to
demonstrate that the source owner or operator is entitled to part or all
of the relief requested. The Administrator shall specify what
deficiencies exist and request that the source owner or operator
supplement his petition within thirty days
[[Page 24]]
of receipt of that request. If the petition is not supplemented
adequately within this time, or, if supplemented adequately, still fails
to demonstrate entitlement to relief, the Administrator shall grant a
hearing under paragraph (a)(3) of this section. Any supplemental
material provided pursuant to the Administrator's request shall be
evaluated as provided in paragraphs (a)(1) and (a)(3) of this section.
(3) A hearing is granted on the issue of whether the source is in
violation of applicable legal requirements or is entitled to an
exemption under Secs. 66.31, 66.32, 66.33, or on both.
[45 FR 50110, July 20, 1980, as amended at 50 FR 36734, Sept. 9, 1985]
Sec. 66.42 Procedure for hearings.
(a) Except as provided in Secs. 66.32 and 66.33, hearings granted
under Sec. 66.41(a)(3) shall be held as provided in Subpart J.
(b) If hearings are granted pursuant to both Sec. 66.32 or
Sec. 66.33 and under Subpart J, a consolidated hearing in accordance
with Subpart J shall be held. At the consolidated hearing the issues
that would otherwise have been considered at a hearing under Sec. 66.32
or Sec. 66.33 shall be considered pursuant to the procedures for a
hearing provided in those sections.
(c) The Presiding Officer at a hearing granted under Sec. 66.41
shall issue an initial decision within 90 days after the Administrator
grants the hearing, unless the duration of the hearing or the deadline
for decision is extended by the Presiding Officer upon agreement of the
parties. Failure to issue a decision (whether or not by consent) within
90 days shall not affect the validity of the proceedings or the accrual
of penalties in any manner.
Sec. 66.43 Final decision; submission of penalty calculation.
Within forty-five days after EPA has notified the owner or operator
of a source of the final Agency decision that it is in violation of
applicable legal requirements or is not entitled to an exemption, the
owner or operator shall submit the information required by
Sec. 66.13(a), including appropriate compliance and payment schedules
and extra interest owed for the period of delay. The penalty shall be
calculated from the date of receipt of the original notice of
noncompliance.
Subpart F--Review of Penalty Calculation
Sec. 66.51 Action upon receipt of penalty calculation.
(a) Within thirty days after receipt of a penalty calculation
provided pursuant to Sec. 66.13(a)(1) or Sec. 66.43, the Administrator
shall notify the source owner or operator in writing, that:
(1) The penalty is provisionally accepted as calculated, subject to
any recalculation that may be necessary under Sec. 66.72 after the
source has achieved compliance; or
(2) The penalty is incorrect and has been recalculated based on the
data provided by the source owner or operator, or other data. The
Administrator shall provide a brief statement of the basis for the
recalculation and shall identify when and where any supporting data may
be examined. The Administrator shall also notify the source owner or
operator of the right to petition for a hearing under Sec. 66.52; or
(3) The source owner or operator has not submitted any calculation,
or the information submitted is inadequate to enable EPA to verify the
owner or operator's penalty calculation. The Administrator shall specify
what deficiencies exist and request the source owner or operator to
supplement his submission within thirty days of receipt of that request.
If an inadequate supplemental submission is made within this time, EPA
may calculate the penalty itself or as provided in Sec. 66.22.
(b) Supplemental material provided pursuant to paragraph (a)(3) of
this section shall be evaluated as provided in paragraph (a).
Sec. 66.52 Petitions for reconsideration of calculation.
Within forty-five days after receipt of notice under
Sec. 66.51(a)(2) that the penalty has been recalculated by EPA, a source
owner or operator who wishes to challenge EPA's recalculation shall
petition in writing for reconsideration. A statement of all arguments on
which
[[Page 25]]
the owner or operator relies, including all necessary supporting data
and a substitute penalty calculation and payment schedule shall be
included in or accompany this petition. Issues not raised in the
petition shall be deemed waived.
Sec. 66.53 Decisions on petitions.
Within thirty days after receiving a petition for reconsideration
under Sec. 66.52 the Administrator shall:
(a) Accept the penalty calculation of the owner or operator to the
extent the Administrator concludes it is correct; or
(b) Grant a hearing to the extent he does not conclude that the
petition is correct.
[45 FR 50110, July 20, 1980, as amended at 50 FR 36734, Sept. 9, 1985]
Sec. 66.54 Procedures for hearing.
(a) Hearings granted under Sec. 66.53 shall be held as provided in
subpart J.
(b) The Presiding Officer at a hearing granted under Sec. 66.53
shall issue an initial decision within ninety days after the
Administrator grants the hearing, unless the duration of the hearing or
the deadline for decision is extended by the Presiding Officer upon
agreement of the parties. Failure to issue a decision (whether or not by
consent) within 90 days shall not affect the validity of the proceedings
or the accrual of penalties in any manner.
Subpart G--Payment
Sec. 66.61 Duty to pay.
(a) Except where the owner or operator has submitted a petition
pursuant to Sec. 66.13(a)(2), the first installment of the penalty shall
be paid on the date six months after receipt of the notice of
noncompliance.
(b) Where the source owner has filed a petition pursuant to
Sec. 66.13(a)(2), the first installment consisting of payment of
penalties for all quarters ``missed'' as well as for the upcoming
quarter shall be paid on the date six months after a final
administrative decision affirming the source owner or operator's
liability. Installments shall be paid quarterly thereafter until
compliance is achieved. Quarters shall be measured in increments of
three calendar months from the date the first payment is due.
(c) A source owner or operator who submits a petition pursuant to
Sec. 66.52 shall pay the penalty amount calculated by the owner or
operator under Sec. 66.13 or Sec. 66.43 or any penalty calculated by EPA
where the owner or operator has failed to calculate such penalty. Within
45 days after EPA has notified the owner or operator of a final
administrative action after hearings on such petition, the owner or
operator shall submit any necessary modification to the penalty. The
revised penalty will be calculated in accordance with the Technical
Support Document and the Manual, and a revised schedule, including
appropriate adjustments for overpayments or underpayments made, will be
established.
Sec. 66.62 Method of payment.
Payments in excess of $10,000 under this part shall be made by wire
transfer payable to the U.S. Treasury. Payments under this part which
are less than $10,000 shall be made by cashier's or certified check made
payable to the United States Treasury, sent by registered mail, return
receipt requested, and addressed to the Administrator, Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460. Payment by
check is made on the due date if it is postmarked on or before the due
date. Payment by wire transfer is made on the due date if the Treasury's
account is credited on or before the due date.
Sec. 66.63 Nonpayment penalty.
(a) Any source owner or operator who fails to make timely payment
under Sec. 66.61 shall pay in addition to the penalty owed a quarterly
nonpayment penalty. The nonpayment penalty shall be calculated as of the
due date of the noncompliance penalty payment and shall be equal to 20
percent of the aggregate amount of the noncompliance penalties and
nonpayment penalties due and owing from the owner or operator on the due
date. Partial payments shall be credited first against the nonpayment
penalty, then against the noncompliance penalty.
[[Page 26]]
(b) The Administrator shall notify the source owner or operator in
writing of the amount of any nonpayment penalty for which the owner or
operator is liable. Failure of the Administrator to provide such notice
immediately shall not affect the legal obligation of the source owner or
operator to pay such penalty. Such nonpayment penalty, as well as the
past due noncompliance penalty, shall be payable immediately.
Subpart H--Compliance and Final Adjustment
Sec. 66.71 Determination of compliance.
(a) An owner or operator of a source who is paying a noncompliance
penalty under this part shall notify the Administrator in writing when
he believes that the source has come into and is maintaining compliance
with all applicable legal requirements. The notice shall be accompanied
by any factual data, analytical materials, and legal arguments which the
source owner or operator believes support such claim.
(b) Within 30 days of receipt of a source owner's submittal, the
Administrator shall determine whether the source has achieved and is
maintaining compliance with applicable legal requirements, and shall
notify the source owner or operator of this determination in writing. If
the Administrator is unable to conclude, on the basis of the information
submitted, whether the source has achieved and is maintaining compliance
with applicable legal requirements, he shall inform the owner or
operator of any additional material that is needed. Within 30 days of
receipt of such additional material, the Administrator shall determine
whether the source has achieved and is maintaining compliance, and shall
notify the source owner or operator of this determination in writing.
(c) If the Administrator determines that the source has not achieved
or is not maintaining compliance with applicable legal requirements, the
source owner or operator may petition for reconsideration within 30 days
of receipt of the determination. The source owner or operator shall
include in this petition any necessary supporting material. Issues not
raised in the petition will be deemed waived. The procedures of
Sec. 66.41 shall be followed upon the receipt of such petition.
(d) In the event that the applicable legal requirement (as defined
in Sec. 66.3(c)) the violation of which forms the basis for the penalty
is superseded by another applicable legal requirement (as defined in
Sec. 66.3(c)) the owner or operator of a source liable for a
noncompliance penalty under this part shall notify the Administrator in
writing that the owner or operator believes that the applicable legal
requirement is superseded and that the period of noncompliance covered
by the notice of noncompliance is ended. The notice shall be accompanied
by the legal arguments which the source owner or operator believes
support such a claim. Within 30 days of receipt of a source owner or
operator's notice, the Administrator shall determine whether the period
of covered noncompliance is ended and shall notify the source owner or
operator of this determination in writing. In cases where the
superseding EPA-approved requirement was not approved by EPA within the
time period required by statute, the period of covered noncompliance
shall be deemed to have ended on the date when EPA under the statute
should have acted.
[45 FR 50110, July 20, 1980, as amended at 50 FR 36734, Sept. 9, 1985]
Sec. 66.72 Additional payment or reimbursement.
(a) Within 120 days after the source owner or operator receives
notification pursuant to Sec. 66.71(b) that it has achieved and is
maintaining compliance with applicable legal requirements, or within 120
days after receipt of a decision to that effect upon petition and
hearing, or within 120 days after receipt of a decision to that effect
upon an appeal to the Environmental Appeals Board, the source owner or
operator shall submit to the Administrator a revised penalty calculation
as provided in the Technical Support Document and the Manual, together
with data necessary for verification. The revised calculation shall
include interest on any underpayment.
(b) Within thirty days after receiving a revised penalty calculation
provided
[[Page 27]]
pursuant to paragraph (a) of this section, the Administrator shall
inform the source owner or operator in writing that:
(1) The revised penalty is correct as calculated;
(2) The revised penalty is incorrect and has been recalculated based
on the data provided by the source owner or operator or on other data.
The Administrator shall provide to the source owner or operator a brief
statement of the basis of the recalculation and shall identify when and
where any supporting data may be examined. The Administrator shall also
notify the source owner or operator of the right to petition for
reconsideration under Sec. 66.73; or
(3) The source owner or operator has not submitted any penalty
calculation, or has not submitted enough material to enable EPA to
verify the penalty calculation. The Administrator shall specify what
deficiencies exist and shall require the source owner or operator to
furnish the supplemental material within thirty days of receipt of the
notice. The supplemental material submitted will be evaluated in the
same manner as the original submittal.
(c) If a source owner or operator fails to submit or to complete a
revised penalty calculation when due under this section or the
calculation submitted is incorrect, the Administrator may recalculate
the penalty or may enter into a contract for independent calculation of
the penalty as provided in Sec. 66.22.
(d) Within 120 days after the source owner or operator receives
notification pursuant to Sec. 66.71(d) that the period of covered
noncompliance ended on the date the applicable legal requirement was
superseded (or, in event of EPA delay past an applicable statutory
deadline, on the date the applicable legal requirement would have been
superseded if there had been no delay past the statutory deadline), the
source owner or operator shall submit to the Administrator a revised
penalty calculation as provided in the Technical Support Document and
Manual together with data necessary for verification. The revised
calculation shall include interest on any underpayment. Paragraphs (b)
and (c) shall apply to calculations submitted under this paragraph.
[45 FR 50110, July 20, 1980 as amended at 50 FR 36734, Sept. 9, 1985; 57
FR 5329, Feb. 13, 1992]
Sec. 66.73 Petition for reconsideration and procedure for hearing.
Within forty-five days of receipt of a notice under Sec. 66.72(b)
(2) a source owner or operator may petition for reconsideration in the
form and manner provided in Sec. 66.52. The petition shall be evaluated
as provided in Sec. 66.53 and any hearing shall be held in conformity
with Sec. 66.54.
Sec. 66.74 Payment or reimbursement.
(a) Within thirty days after any adjustment of a noncompliance
penalty under this Subpart has become administratively final:
(1) Any deficiency owed by the source owner or operator shall be
paid as provided in Sec. 66.62.
(2) Any reimbursement shall be paid by check from the United States
payable to the order of the source owner or operator, and sent by
registered or certified mail, return receipt requested.
(b) Any payment under paragraph (a) of this section, shall include
interest on the amount of the deficiency or reimbursement due, from the
date the deficiency or reimbursement arose, at a rate determined by the
Secretary of the Treasury. Such payment shall be calculated in
accordance with the Technical Support Document and the Manual.
(c) Any source owner or operator who fails to make timely payment of
a deficiency shall pay a nonpayment penalty. The nonpayment penalty
shall be calculated as of the due date of the deficiency payment and
shall be equal to 20% of the deficiency not paid. Such nonpayment
penalty (in addition to the amount of the deficiency owed) shall be
payable immediately. If any part of the nonpayment penalty or deficiency
shall remain unpaid at the end of three calendar months from the due
date of the deficiency, a further nonpayment penalty shall be due equal
to 20% of the sum of all payments due and owing. Partial payments shall
be credited first
[[Page 28]]
against the nonpayment penalty, then the deficiency.
Subpart I--Final Action
Sec. 66.81 Final action.
(a) A final Agency action appealable to the courts by the source
owner or operator includes and is limited to the following, provided the
conditions of paragraph (b) of this section are met:
(1) A notice of determination that a source is in violation of
applicable legal requirements;
(2) A notice of decision to deny or revoke an exemption under
subpart D;
(3) A notice of revision by EPA of a penalty calculation or schedule
under subpart F;
(4) A notice of decision by EPA that the source is not in final
compliance or any revision by EPA of a final penalty calculation under
subpart H; and
(5) A notice of denial of a petition for reconsideration under
Sec. 66.71 or Sec. 66.73.
(6) A decision by the Administrator upon completion of any review of
a State action pursuant to part 67.
(b) The actions listed in paragraph (a) of this section constitute
final Agency action only if all administrative remedies have been
exhausted. To exhaust administrative remedies, a source owner or
operator must first petition for reconsideration of the decision in
question and, if unsuccessful after hearing or after denial of hearing,
appeal the decision in question to the Environmental Appeals Board. The
action becomes final upon the completion of review by the Environmental
Appeals Board and notice thereof to the owner or operator of the source.
(c) Where a petition seeks reconsideration both of the finding of
noncompliance and of the finding of liability on the ground that the
source owner or operator is entitled to an exemption, both questions
must be decided before any review by the Environmental Appeals Board is
sought, except on agreement of the parties.
[45 FR 50110, July 20, 1980, as amended at 50 FR 36734, Sept. 9, 1985;
57 FR 5329, Feb. 13, 1992]
Subpart J--Supplemental Rules for Formal Adjudicatory Hearings
Sec. 66.91 Applicability of supplemental rules.
The Supplemental Rules in this subpart, in conjunction with the
Consolidated Rules of Practice (40 CFR part 22) shall govern all
hearings held under this part. To the extent that the provisions of
these Supplemental Rules or any other provision of this part are
inconsistent with the Consolidated Rules, the provisions of this part
shall govern.
Sec. 66.92 Commencement of hearings.
(a) The provisions of 40 CFR 22.08 (Consolidated Rules of Practice)
shall become applicable when the Administrator grants a hearing.
(b) Upon granting a hearing the Administrator shall immediately
transmit to the appropriate Regional Hearing Clerk two copies of the
notice granting the hearing and:
(1) In the case of a hearing pursuant to Sec. 66.42, two copies of
the notice of noncompliance under Sec. 66.11 (or the revocation notice
under Sec. 66.34) and of the petition of the owner or operator under
Sec. 66.13, together with supporting documents; and
(2) In the case of a hearing pursuant to Sec. 66.53 or Sec. 66.73,
two copies of the penalty calculation of the source owner or operator
provided pursuant to Sec. 66.13(a) or Sec. 66.72, and of any Agency
recalculation pursuant to Sec. 66.51(a)(2) or Sec. 66.72(b)(2), and of
the petition of the source owner or operator for reconsideration
pursuant to Sec. 66.52 or Sec. 66.73, together with supporting
documents.
(3) The Regional Hearing Clerk shall open and maintain the official
file of the proceeding upon receipt of the documents referred to in
paragraphs (b)(1) and (2) of this section.
(c) Upon granting a hearing the Administrator shall request the
Chief Administrative Law Judge to designate an Administrative Law Judge
to serve as the Presiding Officer. The Chief Administrative Law Judge
shall make this designation within seven days of receiving the request,
and shall notify the Regional Hearing Clerk of his action. The Regional
Hearing Clerk shall forward to the Presiding Officer one set
[[Page 29]]
of the documents described in paragraph (b).
Sec. 66.93 Time limits.
The Presiding Officer upon designation shall notify the parties and
shall, if appropriate, schedule a prehearing conference (or alternative
procedures) under 40 CFR 22.19 and shall notify the parties of the date
of hearing under 40 CFR 22.21. The Presiding Officer shall issue an
initial decision no later than ninety days after the hearing is granted,
unless an extension of the hearing schedule or of the deadline for
decision is agreed to by the parties. To that end, the Presiding Officer
may establish such deadlines as are reasonable and necessary. Failure to
issue a decision within 90 days or further extended deadline (whether or
not by consent) shall not affect the validity of the proceedings.
Sec. 66.94 Presentation of evidence.
(a) In hearings pursuant to Sec. 66.42 EPA shall present evidence of
violation of applicable legal requirements. The source owner or operator
shall then present any rebuttal evidence.
(b) In hearings under Sec. 66.42 the source owner or operator shall
present evidence of entitlement to an exemption. EPA shall then present
any rebuttal evidence.
(c) In hearings under Secs. 66.54 and 66.73 EPA shall present
evidence that its calculation or revisions of the source owner or
operator's penalty calculations are correct. The source owner or
operator shall then present any rebuttal evidence.
(d) Each matter of controversy shall be determined by the Presiding
Officer upon a preponderance of the evidence.
(e) Any documentation submitted pursuant to Sec. 66.92(b) shall
automatically be received into evidence in the hearing.
Sec. 66.95 Decisions of the Presiding Officer; Appeal to the Administrator.
(a) The Presiding Officer shall dispose of the issues raised in the
hearing in a single written decision. Such decision shall terminate the
Presiding Officer's consideration of those issues.
(b) Penalty calculations and payment schedules, if any, established
by the decision of the Presiding Officer shall be based solely on the
parameters, terms and conditions of the Technical Support Document,
Manual, and Computer Program.
(c) An appeal to the Environmental Appeals Board from a decision of
the Presiding Officer shall be made by petition filed within twenty (20)
days from receipt by a party of the Presiding Officer's decision. The
Environmental Appeals Board shall rule on the appeal within 30 days of
receipt of a petition. No appeal may be made before receipt of the
decision of the Presiding Officer.
[45 FR 50110, July 20, 1980, as amended at 57 FR 5329, Feb. 13, 1992]
Appendix A to Part 66--Technical Support Document
Note: For text of appendix A see appendix A to part 67.
Appendix B to Part 66--Instruction Manual
Note: For text of appendix B see appendix B to part 67.
Appendix C to Part 66--Computer Program
Note: For text of appendix C see appendix C to part 67.
PART 67--EPA APPROVAL OF STATE NONCOMPLIANCE PENALTY PROGRAM--Table of Contents
Subpart A--Purpose and Scope
Sec.
67.1 Purpose and scope.
Subpart B--Approval of State Programs
67.11 Standards for approval of State programs.
67.12 Application for approval of programs.
67.13 Approval.
67.14 Amendments to the program.
67.15 Revocation.
Subpart C--Federal Notice of Noncompliance to Sources in States With
Approved Programs
67.21 Federal notice of noncompliance to owners or operators of sources
in States with approved programs.
[[Page 30]]
Subpart D--EPA Review of State Compliance or Exemption Decisions
67.31 Review by the Administrator.
67.32 Procedure where no formal State hearing was held.
67.33 Procedure where a formal State hearing was held.
Subpart E--EPA Review of State Penalty Assessments
67.41 When EPA may review.
67.42 Procedure where no formal State hearing was held.
67.43 Procedure where a formal State hearing was held.
Appendix A to Part 67--Technical Support Document [Note]
Appendix B to Part 67--Instruction Manual [Note]
Appendix C to Part 67--Computer Program [Note]
Authority: Sec. 120 of the Clean Air Act, as amended, 42 U.S.C.
7420, unless otherwise noted.
Source: 45 FR 50117, July 28, 1980, unless otherwise noted.
Subpart A--Purpose and Scope
Sec. 67.1 Purpose and scope.
This part describes the standards and procedures under which EPA
will approve State programs for administering the noncompliance penalty
program under section 120 of the Clean Air Act and will evaluate actions
taken by States with approved programs. Subpart A describes the purpose
of the part. Subpart B states the conditions under which EPA will
approve State programs to administer the noncompliance penalty
provisions. Subparts C and D state when and how EPA will issue its own
notices to owners or operators of sources in States with approved
programs, and how it will review State decisions to grant or deny
exemptions from the penalty. Finally, subpart E states how EPA will
review State assessments of a penalty.
Subpart B--Approval of State Programs
Sec. 67.11 Standards for approval of State programs.
(a) The Administrator shall approve any program submitted by a
State, or by a local governmental agency where no program has been
submitted by a State, for administering the noncompliance penalty
provisions of section 120 of the Clean Air Act upon finding that the
program conforms to the requirements of the Act and to those of this
part and 40 CFR part 66. References to ``State program'' in this part
shall be read as including local governmental agencies and their
programs.
(b) The Administrator shall not approve any State program that does
not provide explicitly for:
(1) Issuance of a notice of noncompliance, in a manner consistent
with procedures under part 66, upon discovery by the State or upon
notification by EPA of a violation of applicable legal requirements,
which notice satisfies the informational requirements set forth in
Sec. 66.13.
(2) Levels of staffing and funding satisfactory, in the judgment of
the Administrator, to implement and enforce the requirements of section
120 in that State, together with adequate provision for maintaining such
levels;
(3) A capability to carry out the financial analysis and procedures
specified in these regulations and the Technical Support Document,
Instruction Manual, and related Computer Program, available from the
Director of Stationary Source Compliance Division, EN-341, 401 M Street,
NW., Washington, DC 20460, together with adequate provision for
maintaining such capability. Such capability may be provided by trained
State personnel or through qualified contractors;
(4) Except as provided in paragraph (a)(6) of this section, an
administrative hearing whenever the owner or operator of a source
submits a petition for reconsideration of a notice of noncompliance on
the ground that the source either is not in violation of applicable
legal requirements, or is entitled to an exemption, or both, or submits
a petition to challenge a recalculation of the penalty by the State,
provided that such petitions raise issues of fact that would require a
hearing under part 66. This hearing need not conform to the requirements
of 5 U.S.C. 554 as long as its procedures provide for:
[[Page 31]]
(i) An initial decision by the hearing officer on the record;
(ii) A hearing officer who has not performed investigative or
litigating functions in any enforcement action against the source owner
or operator in question;
(iii) Opportunity for public participation on reasonable notice,
including intervention, by interested persons;
(iv) Opportunity for cross-examination or an equivalent opportunity
for confrontation between persons advocating differing positions on
material factual matters; and
(v) An initial decision by the hearing officer within ninety days of
commencement of the hearing unless such period is extended upon
agreement of the parties.
(5) Explicit provision for:
(i) Notice to the Administrator of any determination granting an
exemption, or finding a source in violation of applicable legal
requirements, and any penalty calculation and payment schedule approved
or calculated by the State, together with any information necessary to
verify its accuracy;
(ii) Within 30 days of receipt of a request from the Administrator,
transmission of a copy of the record of the hearing held under paragraph
(a)(4) or (6) of this section, including any proffered evidence and a
ruling on its admissibility and the State's decision on the merits; and
(iii) Additional reporting and recordkeeping, if necessary, adequate
to enable the Administrator to review the State's administration of the
program and determine whether it conforms to the Act and to part 66 of
these regulations. Such requirements will be specified in the Notice of
Delegation to the State.
(6) A hearing on the question of whether the owner or operator of a
source is entitled to an exemption pursuant to Sec. 66.32 or 66.33 may
be informal. The hearing shall be scheduled upon notice to the public.
Reasonable opportunity to testify and for submission of questions to the
petitioner by members of the public shall be afforded. A record of the
hearing shall be made, and the decision of the hearing officer made in
writing within a reasonable period of time after the close of the
hearing.
(c) The State may delegate all or part of its responsibilities under
its program to a local governmental agency to implement the program
within the jurisdiction of the local agency, Provided that the program
of the local government agency meets the requirements of this section.
(d) No State penalty program or program of one of its agents shall
be disapproved because it is more stringent than the program established
by part 66 or by section 120 where the State or local agent concludes
that it has independent authority under State or local law to implement
and administer the more stringent portions of the program.
[45 FR 50117, July 28, 1980, as amended at 54 FR 25259, June 14, 1989]
Sec. 67.12 Application for approval of programs.
A state that wishes to administer a section 120 program shall submit
an application in writing to the Administrator describing its proposed
program. All necessary supporting materials shall accompany the
application.
Sec. 67.13 Approval.
(a) The Administrator shall evaluate any application submitted under
Sec. 67.12 and shall:
(1) Approve the program and delegate authority to the State to
administer the program if he determines that the requirements of
Sec. 67.11 have been and will be met; or
(2) Request additional information if he determines that the
information submitted is not sufficient to allow him to determine
whether the requirements of Sec. 67.11 have been and will be met; or
(3) Disapprove the State program if he determines that the
information submitted establishes that the requirements of Sec. 67.11
have not been or will not be met.
(b) The Administrator shall notify the State in writing of his
action under paragraph (a) of this section and shall state the reasons
for his action.
(c) In all cases of delegation (whether or not express provision is
made in the
[[Page 32]]
notice of delegation) the Administrator shall retain continuing
authority to issue notices of noncompliance, review exemption requests
or penalty calculations, or take any other steps set forth in part 66 to
assess and collect these penalties. Such authority shall be exercised
pursuant to the provisions of Sec. 67.21.
(d) The Administrator shall retain exclusive authority to assess and
collect penalties against source owners or operators of facilities in
the State who were issued notices of noncompliance pursuant to part 66
prior to the effective date of the delegation, except to the extent the
Administrator specifically delegates such authority to the State.
Sec. 67.14 Amendments to the program.
A State or local agent with a program approved pursuant to
Sec. 67.13 may propose amendments to that program to the Administrator.
The Administrator shall evaluate whether the State or local agent's
program as amended would conform to the requirements of Sec. 67.11 and
shall respond as provided in Sec. 67.13.
Sec. 67.15 Revocation.
If the Administrator determines that a State with a program approved
under Sec. 67.13 is not administering the program in conformity with the
requirements of the Act or Sec. 67.11, or the delegation of authority,
he shall provide the State written notice of that determination, setting
forth his reasons. Copies of all supporting materials shall accompany
the notice if requested, or shall be placed on file in the appropriate
Regional Office and made available for inspection during normal business
hours. The State shall have 90 days in which to respond in writing to
this determination. If the Administrator finds after reviewing the State
response that (a) the State is in fact administering the program in
conformity with Sec. 67.11, or (b) there are reasonable grounds to
believe the State program will immediately be brought into conformity
with that section, he shall withdraw his determination. If he finds that
neither of these conditions has been met, he shall withdraw the
delegation of authority to the State.
Subpart C--Federal Notice of Noncompliance to Sources in States With
Approved Programs
Sec. 67.21 Federal notice of noncompliance to owners or operators of sources in States with approved programs.
(a) The Administrator shall issue a notice of noncompliance to the
owner or operator of any source in a State with an approved program if
he determines that the State or its local agent has failed to issue such
notice, provided that he shall first give 30 days notice to the State of
his intent to issue a notice of noncompliance to the owner or operator
of the source in question unless the State or its agent does so first.
Any notice issued by the Administrator pursuant to this section shall be
deemed to be issued pursuant to the provisions of part 66.
(b) The issuance of a notice of noncompliance shall operate to
withdraw EPA delegation of authority to the State with respect to the
particular facility in question.
(c) If the Administrator determines that the State or local agent
has issued a notice of noncompliance but has failed to pursue diligently
subsequent steps for the assessment and collection of the penalty, he
shall notify the State of his intent to withdraw delegation of authority
to the State with respect to the facility in question and take
appropriate actions pursuant to part 66 unless the State or local agent,
within 30 days, takes appropriate action in accordance with the
requirements of this part. In either case the penalty will be calculated
from the date of the State notice.
Subpart D--EPA Review of State Compliance or Exemption Decisions
Sec. 67.31 Review by the Administrator.
(a) The Administrator may, on his own initiative, review any
determination by a State or its agent that a source owner or operator is
or is not in
[[Page 33]]
compliance with applicable legal requirements or is or is not entitled
to an exemption, to determine whether that determination conforms to the
requirements of the Act and part 66 (as modified by Sec. 67.11).
(b) The Administrator shall review any such determination upon
receipt of a petition alleging that the State's determination does not
conform to the requirements of the Act and part 66 (as modified by
Sec. 67.11). Such petition must be filed within 20 days of issuance of
the State's decision.
(c) The Administrator shall give notice in writing to the State or
local agent, to the owner or operator of the source, and to the
petitioner of his intent to review the determination. Such notice shall
be given within 90 days of the Administrator's receipt of the State or
local agent's determination. Unless otherwise provided, such notice
shall not withdraw EPA's delegation of authority to the State or local
agent over the particular facility in question.
(d) No such State determination shall become final until the
expiration of 90 days after the Administrator's receipt of the notice
required by Sec. 67.11(b)(5).
(1) If the Administrator does not issue a notice of intent to review
within that period, the State determination shall, upon expiration of
such period, constitute final action of the Administrator under section
120 of the Act.
(2) If the Administrator issues a notice of intent to review within
that period, the State determination shall not become final until the
Administrator takes final action after reviewing the determination.
(e) Except as otherwise provided, a State determination shall be
approved if there was a reasonable basis in law and in fact for making
the determination.
Sec. 67.32 Procedure where no formal State hearing was held.
(a) In reviewing a decision that a source is in compliance with
applicable legal requirements or entitled to an exemption for which no
hearing conforming to Sec. 67.11(b) (4) or (6) was held, the
Administrator shall evaluate the accuracy and adequacy of the documents
transmitted to him pursuant to Sec. 67.11(b)(5) and shall invite
submission of comments on issues identified by him as relevant to his
review.
(b) If the Administrator concludes that no hearing need have been
held and that the State determination was correct, he shall notify the
State, the source owner or operator, and other participants of his
determination, which shall constitute final agency action by EPA under
authority of section 120. If the Administrator concludes that the
petition of the source owner or operator presented information which, if
true, would have altered the owner or operator's liability for a
penalty, he shall upon notice to the State or local agent schedule a
hearing in accordance with subpart E of part 66. Such notice shall
operate as a withdrawal of EPA's delegation of authority to the State or
local agent over the facility in question unless the State or local
agent schedules a hearing within 15 days of receipt of the notice.
(c) If the Administrator concludes that the State determination did
not conform to the requirements of the Act or of part 66 (as modified by
Sec. 67.11), he shall by written notice revoke the determination. Such
revocation shall operate as a withdrawal of EPA's delegation of
authority to the State or local agent over the facility in question. The
source owner or operator may then petition for review of the
Administrator's decision pursuant to the provisions of Sec. 66.13.
(d) Unless otherwise provided in the Administrator's notice to the
State or local agent, any noncompliance penalties owed by the source
owner or operator shall be paid to the State or local agent. The
Administrator shall send a copy of this notice to the source owner or
operator.
Sec. 67.33 Procedure where a formal State hearing was held.
(a) In reviewing a decision that a source is in compliance with
applicable legal requirements or is entitled to an exemption for which a
hearing conforming to Sec. 67.11(b) (4) or (6) was held, the
Administrator may invite comment on issues identified by him as relevant
to his review and shall propose or make findings as to the correctness
of the determination and the accuracy
[[Page 34]]
and adequacy of the material transmitted pursuant to Sec. 67.11(b)(5).
(b) The Administrator shall notify all participants in the State
hearing of his findings and conclusions. If the Administrator concludes
that the State determination conformed to the requirements of the Act
and of part 66 (as modified by Sec. 66.11), the Administrator's
determination shall constitute final administrative action by EPA under
authority of Section 120. If the Administrator finds that the State
determination did not conform to the requirements of the Act and of part
66 (as modified by Sec. 67.11), the findings shall constitute proposed
findings and the notice shall invite participants to file exceptions
thereto. If the Administrator considers it desirable, he may schedule a
time for argument.
(c) Within 60 days of receipt of any briefs or exceptions or after
oral argument pursuant to paragraph (b), the Administrator shall affirm,
modify, or revoke his proposed findings that the State's determination
did not conform to the requirements of the Act or of part 66 (as
modified by Sec. 67.11). The decision shall be in writing. Notice and a
copy of the decision shall be provided to the source owner or operator
and to all other participants in the State hearing. The decision shall
constitute a final administrative action by EPA under authority of
section 120.
(d) If the Administrator finds that deficiencies in the hearing
record prevent him from determining whether the determination of the
State or local agent conformed to the requirements of the Act and part
66 (as modified by Sec. 67.11), he shall notify the State or local agent
of his finding and specify what deficiencies exist and schedule a
hearing pursuant to subpart E of part 66. Such notice shall operate as a
withdrawal of EPA's delegation of authority to the State or local agent
over the facility in question unless the State or local agent schedules
a supplemental hearing to correct the deficiencies within 15 days of
receipt of the notice.
(e) If the Administrator concludes that the source is in violation
of applicable legal requirements or is not entitled to an exemption, or
both, and unless otherwise ordered in the decision, the source owner or
operator shall submit a penalty calculation to the State within 45 days
of receipt of the notice of determination.
Subpart E--EPA Review of State Penalty Assessments
Sec. 67.41 When EPA may review.
(a) The Administrator may on his own initiative or on petition
review any initial, interim, or final penalty calculation made or
approved by the State or local agent to determine whether it conforms to
the requirements of the Act, of part 66, of the Technical Support
Document and the Instruction Manual. The Administrator shall notify the
State or local agent in writing of his intention to review the
calculation within 60 days of receipt by EPA of the calculation or any
item considered by the State in making or approving such calculation,
whichever occurs later.
(b) No such State determination shall become final until the
expiration of 90 days after the Administrator's receipt of the notice
required by Sec. 67.11(b)(5).
(1) If the Administrator does not issue a notice of intent to review
within that period, the State determination shall, upon expiration of
such period, constitute final action of the Administrator under section
120 of the Act.
(2) If the Administrator issues a notice of intent to review within
that period, the State determination shall not become final until the
Administrator takes final action after reviewing the determination.
(c) Except as otherwise provided, a State determination shall be
approved if there was a reasonable basis in law and in fact for making
the determination.
Sec. 67.42 Procedure where no formal State hearing was held.
(a) In reviewing a penalty calculation for which no hearing
conforming to the requirements of Sec. 67.11(b)(4) was held, the
Administrator shall evaluate the accuracy and adequacy of the data
contained in the documents transmitted to him pursuant to
Sec. 67.11(b)(5) and shall invite comments on issues identified by him
as relevant to his review.
(b) If the Administrator concludes that no hearing need have been
held
[[Page 35]]
and that the State determination was correct, he shall notify the State,
the source owner or operator, and other participants of his
determination, which shall constitute final agency action by EPA under
authority of section 120. If the Administrator concludes that the
petition of the source owner or operator for reconsideration of a
recalculation presented information which, if true, would have altered
the amount of the penalty calculated, he shall upon notice to the State
schedule a hearing in accordance with subpart F of part 66. Such notice
shall operate as a withdrawal of EPA's delegation of authority to the
State or local agent over the facility in question unless the State or
local agent schedules a hearing within 15 days of receipt of the notice.
(c) If the Administrator concludes that the determination of the
State or local agent not to hold a hearing was proper but that the
penalty calculation does not conform to the requirements of the Act or
of part 66, he shall by written notice revoke the determination and
issue a notice of recalculation to the source owner or operator pursuant
to Sec. 66.51. A copy of the notice of recalculation shall be provided
to the State or local agent. The notice of recalculation shall
constitute final administrative action by EPA under authority of section
120 unless the source owner or operator petitions for reconsideration
under Sec. 66.52, in which case it shall operate as a withdrawal by EPA
of its delegation of authority to the State or local agent over the
facility in question.
(d) Unless otherwise provided in the Administrator's notice,
noncompliance penalties finally determined to be owed shall be paid to
the State or local agent.
Sec. 67.43 Procedure where a formal State hearing was held.
(a) In reviewing a penalty calculation for which a hearing
conforming to Sec. 67.11(b)(4) was held, the Administrator may invite
comment on issues identified by him as relevant to his review and shall
propose or make findings as to the correctness of the determination and
shall evaluate the accuracy and adequacy of the material transmitted
pursuant to Sec. 67.11(b)(5).
(b) The Administrator shall notify all participants in the State
hearing of his findings and conclusions. If the Administrator finds that
the State determination conformed to the requirements of the Act, part
66 (as modified by Sec. 67.11), the Technical Support Document, and the
Instruction Manual, his determination shall constitute a final action
pursuant to section 120. If the Administrator finds that the State
determination did not conform to the requirements of the Act or of part
66 (as modified by Sec. 67.11) or to the Technical Support Document or
Instruction Manual, the findings shall constitute proposed findings, and
the notice shall invite participants to file exceptions to his proposed
findings and, if necessary, schedule a time for argument.
(c) Within 60 days of receipt of any briefs or exceptions or after
oral argument, the Administrator shall affirm, modify, or revoke his
proposed findings that the State or local agent's determination did not
conform to the requirements of the Act or of part 66 (as modified by
Sec. 67.11) or the Technical Support Document or Instruction Manual. The
decision shall be in writing. Notice and a copy of the decision, which
shall constitute final administrative action by EPA pursuant to section
120, shall be provided to the source owner or operator and to all other
participants in the State hearing.
(d) If the Administrator finds that deficiencies in the State or
local agent's hearing record prevent him from determining whether the
State or local agent's determination conformed to the requirements of
the Act and part 66 (as modified by Sec. 67.11) or the Technical Support
Document or Instruction Manual, he shall notify the State or local agent
of his decision and specify what dificiencies exist and schedule a
hearing in accordance with subpart F of part 66. Such notice shall
operate to withdraw EPA's delegation of authority to the State or local
agent over the facility in question unless the State or local agent
within 15 days schedules a supplemental hearing to correct the
deficiencies.
(e) Unless otherwise provided in the Administrator's notice to the
State or
[[Page 36]]
local agent, any noncompliance penalties owed by the source owner or
operator shall be paid to the State or local agent.
Appendix A to Part 67--Technical Support Document
Note: EPA will make copies of appendix A available from: Director,
Stationary Source Compliance Division, EN-341, 401 M Street, SW.,
Washington, DC 20460.
[54 FR 25259, June 20, 1989]
Appendix B to Part 67--Instruction Manual
Note: EPA will make copies of appendix B available from: Director,
Stationary Source Compliance Division, EN-341, 401 M Street, SW.,
Washington, DC 20460.
[54 FR 25259, June 20, 1989]
Appendix C to Part 67--Computer Program
Note: EPA will make copies of appendix C available from: Director,
Stationary Source Compliance Division, EN-341, 401 M Street, SW.,
Washington, DC 20460.
[54 FR 25259, June 20, 1989]
PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS--Table of Contents
Subpart A--General
Sec.
68.1 Scope.
68.2 Stayed provisions.
68.3 Definitions.
68.10 Applicability.
68.12 General requirements.
68.15 Management.
Subpart B--Hazard Assessment
68.20 Applicability.
68.22 Offsite consequence analysis parameters.
68.25 Worst-case release scenario analysis.
68.28 Alternative release scenario analysis.
68.30 Defining offsite impacts--population.
68.33 Defining offsite impacts--environment.
68.36 Review and update.
68.39 Documentation.
68.42 Five-year accident history.
Subpart C--Program 2 Prevention Program
68.48 Safety information.
68.50 Hazard review.
68.52 Operating procedures.
68.54 Training.
68.56 Maintenance.
68.58 Compliance audits.
68.60 Incident investigation.
Subpart D--Program 3 Prevention Program
68.65 Process safety information.
68.67 Process hazard analysis.
68.69 Operating procedures.
68.71 Training.
68.73 Mechanical integrity.
68.75 Management of change.
68.77 Pre-startup review.
68.79 Compliance audits.
68.81 Incident investigation.
68.83 Employee participation.
68.85 Hot work permit.
68.87 Contractors.
Subpart E--Emergency Response
68.90 Applicability.
68.95 Emergency response program.
Subpart F--Regulated Substances for Accidental Release Prevention
68.100 Purpose.
68.115 Threshold determination.
68.120 Petition process.
68.125 Exemptions.
68.130 List of substances.
Subpart G--Risk Management Plan
68.150 Submission.
68.151 Assertion of claims of confidential business information.
68.152 Substantiating claims of confidential business information.
68.155 Executive summary.
68.160 Registration.
68.165 Offsite consequence analysis.
68.168 Five-year accident history.
68.170 Prevention program/Program 2.
68.175 Prevention program/Program 3.
68.180 Emergency response program.
68.185 Certification.
68.190 Updates.
Subpart H--Other Requirements
68.200 Recordkeeping.
68.210 Availability of information to the public.
68.215 Permit content and air permitting authority or designated agency
requirements.
68.220 Audits.
Appendix A to Part 68--Table of Toxic Endpoints
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
Source: 59 FR 4493, Jan. 31, 1994, unless otherwise noted.
[[Page 37]]
Subpart A--General
Sec. 68.1 Scope.
This part sets forth the list of regulated substances and
thresholds, the petition process for adding or deleting substances to
the list of regulated substances, the requirements for owners or
operators of stationary sources concerning the prevention of accidental
releases, and the State accidental release prevention programs approved
under section 112(r). The list of substances, threshold quantities, and
accident prevention regulations promulgated under this part do not limit
in any way the general duty provisions under section 112(r)(1).
Sec. 68.2 Stayed provisions.
(a) Notwithstanding any other provision of this part, the
effectiveness of the following provisions is stayed from March 2, 1994
to December 22, 1997.
(1) In Sec. 68.3, the definition of ``stationary source,'' to the
extent that such definition includes naturally occurring hydrocarbon
reservoirs or transportation subject to oversight or regulation under a
state natural gas or hazardous liquid program for which the state has in
effect a certification to DOT under 49 U.S.C. 60105;
(2) Section 68.115(b)(2) of this part, to the extent that such
provision requires an owner or operator to treat as a regulated
flammable substance:
(i) Gasoline, when in distribution or related storage for use as
fuel for internal combustion engines;
(ii) Naturally occurring hydrocarbon mixtures prior to entry into a
petroleum refining process unit or a natural gas processing plant.
Naturally occurring hydrocarbon mixtures include any of the following:
condensate, crude oil, field gas, and produced water, each as defined in
paragraph (b) of this section;
(iii) Other mixtures that contain a regulated flammable substance
and that do not have a National Fire Protection Association flammability
hazard rating of 4, the definition of which is in the NFPA 704, Standard
System for the Identification of the Fire Hazards of Materials, National
Fire Protection Association, Quincy, MA, 1990, available from the
National Fire Protection Association, 1 Batterymarch Park, Quincy, MA
02269-9101; and
(3) Section 68.130(a).
(b) From March 2, 1994 to December 22, 1997, the following
definitions shall apply to the stayed provisions described in paragraph
(a) of this section:
Condensate means hydrocarbon liquid separated from natural gas that
condenses because of changes in temperature, pressure, or both, and
remains liquid at standard conditions.
Crude oil means any naturally occurring, unrefined petroleum liquid.
Field gas means gas extracted from a production well before the gas
enters a natural gas processing plant.
Natural gas processing plant means any processing site engaged in
the extraction of natural gas liquids from field gas, fractionation of
natural gas liquids to natural gas products, or both. A separator,
dehydration unit, heater treater, sweetening unit, compressor, or
similar equipment shall not be considered a ``processing site'' unless
such equipment is physically located within a natural gas processing
plant (gas plant) site.
Petroleum refining process unit means a process unit used in an
establishment primarily engaged in petroleum refining as defined in the
Standard Industrial Classification code for petroleum refining (2911)
and used for the following: Producing transportation fuels (such as
gasoline, diesel fuels, and jet fuels), heating fuels (such as kerosene,
fuel gas distillate, and fuel oils), or lubricants; separating
petroleum; or separating, cracking, reacting, or reforming intermediate
petroleum streams. Examples of such units include, but are not limited
to, petroleum based solvent units, alkylation units, catalytic
hydrotreating, catalytic hydrorefining, catalytic hydrocracking,
catalytic reforming, catalytic cracking, crude distillation, lube oil
processing, hydrogen production, isomerization, polymerization, thermal
processes, and blending, sweetening, and treating processes. Petroleum
refining process units include sulfur plants.
Produced water means water extracted from the earth from an oil or
natural gas production well, or that is separated from oil or natural
gas after extraction.
[[Page 38]]
(c) Notwithstanding any other provision of this part, the
effectiveness of part 68 is stayed from June 21, 1999 to December 21,
1999 with respect to regulated flammable hydrocarbon substances when the
substance is intended for use as a fuel and does not exceed 67,000
pounds in a process that is not manufacturing the fuel, does not contain
greater than a threshold quantity of another regulated substance, and is
not collocated or interconnected to another covered process.
[59 FR 4493, Jan. 31, 1994, as amended at 61 FR 31731, June 20, 1996; 64
FR 29170, May 28, 1999]
Sec. 68.3 Definitions.
For the purposes of this part:
Accidental release means an unanticipated emission of a regulated
substance or other extremely hazardous substance into the ambient air
from a stationary source.
Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.)
Administrative controls mean written procedural mechanisms used for
hazard control.
Administrator means the administrator of the U.S. Environmental
Protection Agency.
AIChE/CCPS means the American Institute of Chemical Engineers/Center
for Chemical Process Safety.
API means the American Petroleum Institute.
Article means a manufactured item, as defined under 29 CFR
1910.1200(b), that is formed to a specific shape or design during
manufacture, that has end use functions dependent in whole or in part
upon the shape or design during end use, and that does not release or
otherwise result in exposure to a regulated substance under normal
conditions of processing and use.
ASME means the American Society of Mechanical Engineers.
CAS means the Chemical Abstracts Service.
Catastrophic release means a major uncontrolled emission, fire, or
explosion, involving one or more regulated substances that presents
imminent and substantial endangerment to public health and the
environment.
Classified information means ``classified information'' as defined
in the Classified Information Procedures Act, 18 U.S.C. App. 3, section
1(a) as ``any information or material that has been determined by the
United States Government pursuant to an executive order, statute, or
regulation, to require protection against unauthorized disclosure for
reasons of national security.''
Condensate means hydrocarbon liquid separated from natural gas that
condenses due to changes in temperature, pressure, or both, and remains
liquid at standard conditions.
Covered process means a process that has a regulated substance
present in more than a threshold quantity as determined under
Sec. 68.115.
Crude oil means any naturally occurring, unrefined petroleum liquid.
Designated agency means the state, local, or Federal agency
designated by the state under the provisions of Sec. 68.215(d) .
DOT means the United States Department of Transportation.
Environmental receptor means natural areas such as national or state
parks, forests, or monuments; officially designated wildlife
sanctuaries, preserves, refuges, or areas; and Federal wilderness areas,
that could be exposed at any time to toxic concentrations, radiant heat,
or overpressure greater than or equal to the endpoints provided in
Sec. 68.22(a) , as a result of an accidental release and that can be
identified on local U. S. Geological Survey maps.
Field gas means gas extracted from a production well before the gas
enters a natural gas processing plant.
Hot work means work involving electric or gas welding, cutting,
brazing, or similar flame or spark-producing operations.
Implementing agency means the state or local agency that obtains
delegation for an accidental release prevention program under subpart E,
40 CFR part 63. The implementing agency may, but is not required to, be
the state or local air permitting agency. If no state or local agency is
granted delegation, EPA will be the implementing agency for that state.
Injury means any effect on a human that results either from direct
exposure to toxic concentrations; radiant heat; or overpressures from
accidental
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releases or from the direct consequences of a vapor cloud explosion
(such as flying glass, debris, and other projectiles) from an accidental
release and that requires medical treatment or hospitalization.
Major change means introduction of a new process, process equipment,
or regulated substance, an alteration of process chemistry that results
in any change to safe operating limits, or other alteration that
introduces a new hazard.
Mechanical integrity means the process of ensuring that process
equipment is fabricated from the proper materials of construction and is
properly installed, maintained, and replaced to prevent failures and
accidental releases.
Medical treatment means treatment, other than first aid,
administered by a physician or registered professional personnel under
standing orders from a physician.
Mitigation or mitigation system means specific activities,
technologies, or equipment designed or deployed to capture or control
substances upon loss of containment to minimize exposure of the public
or the environment. Passive mitigation means equipment, devices, or
technologies that function without human, mechanical, or other energy
input. Active mitigation means equipment, devices, or technologies that
need human, mechanical, or other energy input to function.
NAICS means North American Industry Classification System.
NFPA means the National Fire Protection Association.
Natural gas processing plant (gas plant) means any processing site
engaged in the extraction of natural gas liquids from field gas,
fractionation of mixed natural gas liquids to natural gas products, or
both, classified as North American Industrial Classification System
(NAICS) code 211112 (previously Standard Industrial Classification (SIC)
code 1321).
Offsite means areas beyond the property boundary of the stationary
source, and areas within the property boundary to which the public has
routine and unrestricted access during or outside business hours.
OSHA means the U.S. Occupational Safety and Health Administration.
Owner or operator means any person who owns, leases, operates, controls,
or supervises a stationary source.
Petroleum refining process unit means a process unit used in an
establishment primarily engaged in petroleum refining as defined in
NAICS code 32411 for petroleum refining (formerly SIC code 2911) and
used for the following: Producing transportation fuels (such as
gasoline, diesel fuels, and jet fuels), heating fuels (such as kerosene,
fuel gas distillate, and fuel oils), or lubricants; Separating
petroleum; or Separating, cracking, reacting, or reforming intermediate
petroleum streams. Examples of such units include, but are not limited
to, petroleum based solvent units, alkylation units, catalytic
hydrotreating, catalytic hydrorefining, catalytic hydrocracking,
catalytic reforming, catalytic cracking, crude distillation, lube oil
processing, hydrogen production, isomerization, polymerization, thermal
processes, and blending, sweetening, and treating processes. Petroleum
refining process units include sulfur plants.
Population means the public.
Process means any activity involving a regulated substance including
any use, storage, manufacturing, handling, or on-site movement of such
substances, or combination of these activities. For the purposes of this
definition, any group of vessels that are interconnected, or separate
vessels that are located such that a regulated substance could be
involved in a potential release, shall be considered a single process.
Produced water means water extracted from the earth from an oil or
natural gas production well, or that is separated from oil or natural
gas after extraction.
Public means any person except employees or contractors at the
stationary source.
Public receptor means offsite residences, institutions (e.g.,
schools, hospitals), industrial, commercial, and office buildings,
parks, or recreational areas inhabited or occupied by the public at any
time without restriction by the stationary source where members of the
public could be exposed to toxic
[[Page 40]]
concentrations, radiant heat, or overpressure, as a result of an
accidental release.
Regulated substance is any substance listed pursuant to section
112(r)(3) of the Clean Air Act as amended, in Sec. 68.130.
Replacement in kind means a replacement that satisfies the design
specifications.
RMP means the risk management plan required under subpart G of this
part.
Stationary source means any buildings, structures, equipment,
installations, or substance emitting stationary activities which belong
to the same industrial group, which are located on one or more
contiguous properties, which are under the control of the same person
(or persons under common control), and from which an accidental release
may occur. The term stationary source does not apply to transportation,
including storage incident to transportation, of any regulated substance
or any other extremely hazardous substance under the provisions of this
part. A stationary source includes transportation containers used for
storage not incident to transportation and transportation containers
connected to equipment at a stationary source for loading or unloading.
Transportation includes, but is not limited to, transportation subject
to oversight or regulation under 49 CFR parts 192, 193, or 195, or a
state natural gas or hazardous liquid program for which the state has in
effect a certification to DOT under 49 U.S.C. section 60105. A
stationary source does not include naturally occurring hydrocarbon
reservoirs. Properties shall not be considered contiguous solely because
of a railroad or pipeline right-of-way.
Threshold quantity means the quantity specified for regulated
substances pursuant to section 112(r)(5) of the Clean Air Act as
amended, listed in Sec. 68.130 and determined to be present at a
stationary source as specified in Sec. 68.115 of this part.
Typical meteorological conditions means the temperature, wind speed,
cloud cover, and atmospheric stability class, prevailing at the site
based on data gathered at or near the site or from a local
meteorological station.
Vessel means any reactor, tank, drum, barrel, cylinder, vat, kettle,
boiler, pipe, hose, or other container.
Worst-case release means the release of the largest quantity of a
regulated substance from a vessel or process line failure that results
in the greatest distance to an endpoint defined in Sec. 68.22(a).
[59 FR 4493, Jan. 31, 1994, as amended at 61 FR 31717, June 20, 1996; 63
FR 644, Jan. 6, 1998; 64 FR 979, Jan. 6, 1999]
Sec. 68.10 Applicability.
(a) An owner or operator of a stationary source that has more than a
threshold quantity of a regulated substance in a process, as determined
under Sec. 68.115, shall comply with the requirements of this part no
later than the latest of the following dates:
(1) June 21, 1999;
(2) Three years after the date on which a regulated substance is
first listed under Sec. 68.130; or
(3) The date on which a regulated substance is first present above a
threshold quantity in a process.
(b) Program 1 eligibility requirements. A covered process is
eligible for Program 1 requirements as provided in Sec. 68.12(b) if it
meets all of the following requirements:
(1) For the five years prior to the submission of an RMP, the
process has not had an accidental release of a regulated substance where
exposure to the substance, its reaction products, overpressure generated
by an explosion involving the substance, or radiant heat generated by a
fire involving the substance led to any of the following offsite:
(i) Death;
(ii) Injury; or
(iii) Response or restoration activities for an exposure of an
environmental receptor;
(2) The distance to a toxic or flammable endpoint for a worst-case
release assessment conducted under Subpart B and Sec. 68.25 is less than
the distance to any public receptor, as defined in Sec. 68.30; and
(3) Emergency response procedures have been coordinated between the
stationary source and local emergency planning and response
organizations.
[[Page 41]]
(c) Program 2 eligibility requirements. A covered process is subject
to Program 2 requirements if it does not meet the eligibility
requirements of either paragraph (b) or paragraph (d) of this section.
(d) Program 3 eligibility requirements. A covered process is subject
to Program 3 if the process does not meet the requirements of paragraph
(b) of this section, and if either of the following conditions is met:
(1) The process is in NAICS code 32211, 32411, 32511, 325181,
325188, 325192, 325199, 325211, 325311, or 32532; or
(2) The process is subject to the OSHA process safety management
standard, 29 CFR 1910.119.
(e) If at any time a covered process no longer meets the eligibility
criteria of its Program level, the owner or operator shall comply with
the requirements of the new Program level that applies to the process
and update the RMP as provided in Sec. 68.190.
(f) The provisions of this part shall not apply to an Outer
Continental Shelf (``OCS'') source, as defined in 40 CFR 55.2.
[61 FR 31717, June 20, 1996, as amended at 63 FR 645, Jan. 6, 1998; 64
FR 979, Jan. 6, 1999]
Sec. 68.12 General requirements.
(a) General requirements. The owner or operator of a stationary
source subject to this part shall submit a single RMP, as provided in
Secs. 68.150 to 68.185. The RMP shall include a registration that
reflects all covered processes.
(b) Program 1 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process eligible for Program 1, as provided in
Sec. 68.10(b), shall:
(1) Analyze the worst-case release scenario for the process(es), as
provided in Sec. 68.25; document that the nearest public receptor is
beyond the distance to a toxic or flammable endpoint defined in
Sec. 68.22(a); and submit in the RMP the worst-case release scenario as
provided in Sec. 68.165;
(2) Complete the five-year accident history for the process as
provided in Sec. 68.42 of this part and submit it in the RMP as provided
in Sec. 68.168;
(3) Ensure that response actions have been coordinated with local
emergency planning and response agencies; and
(4) Certify in the RMP the following: ``Based on the criteria in 40
CFR 68.10, the distance to the specified endpoint for the worst-case
accidental release scenario for the following process(es) is less than
the distance to the nearest public receptor: [list process(es)]. Within
the past five years, the process(es) has (have) had no accidental
release that caused offsite impacts provided in the risk management
program rule (40 CFR 68.10(b)(1)). No additional measures are necessary
to prevent offsite impacts from accidental releases. In the event of
fire, explosion, or a release of a regulated substance from the
process(es), entry within the distance to the specified endpoints may
pose a danger to public emergency responders. Therefore, public
emergency responders should not enter this area except as arranged with
the emergency contact indicated in the RMP. The undersigned certifies
that, to the best of my knowledge, information, and belief, formed after
reasonable inquiry, the information submitted is true, accurate, and
complete. [Signature, title, date signed].''
(c) Program 2 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process subject to Program 2, as provided in
Sec. 68.10(c), shall:
(1) Develop and implement a management system as provided in
Sec. 68.15;
(2) Conduct a hazard assessment as provided in Secs. 68.20 through
68.42;
(3) Implement the Program 2 prevention steps provided in Secs. 68.48
through 68.60 or implement the Program 3 prevention steps provided in
Secs. 68.65 through 68.87;
(4) Develop and implement an emergency response program as provided
in Secs. 68.90 to 68.95; and
(5) Submit as part of the RMP the data on prevention program
elements for Program 2 processes as provided in Sec. 68.170.
(d) Program 3 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with
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a process subject to Program 3, as provided in Sec. 68.10(d) shall:
(1) Develop and implement a management system as provided in
Sec. 68.15;
(2) Conduct a hazard assessment as provided in Secs. 68.20 through
68.42;
(3) Implement the prevention requirements of Secs. 68.65 through
68.87;
(4) Develop and implement an emergency response program as provided
in Secs. 68.90 to 68.95 of this part; and
(5) Submit as part of the RMP the data on prevention program
elements for Program 3 processes as provided in Sec. 68.175.
[61 FR 31718, June 20, 1996]
Sec. 68.15 Management.
(a) The owner or operator of a stationary source with processes
subject to Program 2 or Program 3 shall develop a management system to
oversee the implementation of the risk management program elements.
(b) The owner or operator shall assign a qualified person or
position that has the overall responsibility for the development,
implementation, and integration of the risk management program elements.
(c) When responsibility for implementing individual requirements of
this part is assigned to persons other than the person identified under
paragraph (b) of this section, the names or positions of these people
shall be documented and the lines of authority defined through an
organization chart or similar document.
[61 FR 31718, June 20, 1996]
Subpart B--Hazard Assessment
Source: 61 FR 31718, June 20, 1996, unless otherwise noted.
Sec. 68.20 Applicability.
The owner or operator of a stationary source subject to this part
shall prepare a worst-case release scenario analysis as provided in
Sec. 68.25 of this part and complete the five-year accident history as
provided in Sec. 68.42. The owner or operator of a Program 2 and 3
process must comply with all sections in this subpart for these
processes.
Sec. 68.22 Offsite consequence analysis parameters.
(a) Endpoints. For analyses of offsite consequences, the following
endpoints shall be used:
(1) Toxics. The toxic endpoints provided in appendix A of this part.
(2) Flammables. The endpoints for flammables vary according to the
scenarios studied:
(i) Explosion. An overpressure of 1 psi.
(ii) Radiant heat/exposure time. A radiant heat of 5 kw/
m2 for 40 seconds.
(iii) Lower flammability limit. A lower flammability limit as
provided in NFPA documents or other generally recognized sources.
(b) Wind speed/atmospheric stability class. For the worst-case
release analysis, the owner or operator shall use a wind speed of 1.5
meters per second and F atmospheric stability class. If the owner or
operator can demonstrate that local meteorological data applicable to
the stationary source show a higher minimum wind speed or less stable
atmosphere at all times during the previous three years, these minimums
may be used. For analysis of alternative scenarios, the owner or
operator may use the typical meteorological conditions for the
stationary source.
(c) Ambient temperature/humidity. For worst-case release analysis of
a regulated toxic substance, the owner or operator shall use the highest
daily maximum temperature in the previous three years and average
humidity for the site, based on temperature/humidity data gathered at
the stationary source or at a local meteorological station; an owner or
operator using the RMP Offsite Consequence Analysis Guidance may use 25
deg.C and 50 percent humidity as values for these variables. For
analysis of alternative scenarios, the owner or operator may use typical
temperature/humidity data gathered at the stationary source or at a
local meteorological station.
(d) Height of release. The worst-case release of a regulated toxic
substance shall be analyzed assuming a ground level (0 feet) release.
For an alternative scenario analysis of a regulated toxic substance,
release height may be determined by the release scenario.
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(e) Surface roughness. The owner or operator shall use either urban
or rural topography, as appropriate. Urban means that there are many
obstacles in the immediate area; obstacles include buildings or trees.
Rural means there are no buildings in the immediate area and the terrain
is generally flat and unobstructed.
(f) Dense or neutrally buoyant gases. The owner or operator shall
ensure that tables or models used for dispersion analysis of regulated
toxic substances appropriately account for gas density.
(g) Temperature of released substance. For worst case, liquids other
than gases liquified by refrigeration only shall be considered to be
released at the highest daily maximum temperature, based on data for the
previous three years appropriate for the stationary source, or at
process temperature, whichever is higher. For alternative scenarios,
substances may be considered to be released at a process or ambient
temperature that is appropriate for the scenario.
Sec. 68.25 Worst-case release scenario analysis.
(a) The owner or operator shall analyze and report in the RMP:
(1) For Program 1 processes, one worst-case release scenario for
each Program 1 process;
(2) For Program 2 and 3 processes:
(i) One worst-case release scenario that is estimated to create the
greatest distance in any direction to an endpoint provided in appendix A
of this part resulting from an accidental release of regulated toxic
substances from covered processes under worst-case conditions defined in
Sec. 68.22;
(ii) One worst-case release scenario that is estimated to create the
greatest distance in any direction to an endpoint defined in
Sec. 68.22(a) resulting from an accidental release of regulated
flammable substances from covered processes under worst-case conditions
defined in Sec. 68.22; and
(iii) Additional worst-case release scenarios for a hazard class if
a worst-case release from another covered process at the stationary
source potentially affects public receptors different from those
potentially affected by the worst-case release scenario developed under
paragraphs (a)(2)(i) or (a)(2)(ii) of this section.
(b) Determination of worst-case release quantity. The worst-case
release quantity shall be the greater of the following:
(1) For substances in a vessel, the greatest amount held in a single
vessel, taking into account administrative controls that limit the
maximum quantity; or
(2) For substances in pipes, the greatest amount in a pipe, taking
into account administrative controls that limit the maximum quantity.
(c) Worst-case release scenario--toxic gases. (1) For regulated
toxic substances that are normally gases at ambient temperature and
handled as a gas or as a liquid under pressure, the owner or operator
shall assume that the quantity in the vessel or pipe, as determined
under paragraph (b) of this section, is released as a gas over 10
minutes. The release rate shall be assumed to be the total quantity
divided by 10 unless passive mitigation systems are in place.
(2) For gases handled as refrigerated liquids at ambient pressure:
(i) If the released substance is not contained by passive mitigation
systems or if the contained pool would have a depth of 1 cm or less, the
owner or operator shall assume that the substance is released as a gas
in 10 minutes;
(ii) If the released substance is contained by passive mitigation
systems in a pool with a depth greater than 1 cm, the owner or operator
may assume that the quantity in the vessel or pipe, as determined under
paragraph (b) of this section, is spilled instantaneously to form a
liquid pool. The volatilization rate (release rate) shall be calculated
at the boiling point of the substance and at the conditions specified in
paragraph (d) of this section.
(d) Worst-case release scenario--toxic liquids. (1) For regulated
toxic substances that are normally liquids at ambient temperature, the
owner or operator shall assume that the quantity in the vessel or pipe,
as determined under paragraph (b) of this section, is spilled
instantaneously to form a liquid pool.
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(i) The surface area of the pool shall be determined by assuming
that the liquid spreads to 1 centimeter deep unless passive mitigation
systems are in place that serve to contain the spill and limit the
surface area. Where passive mitigation is in place, the surface area of
the contained liquid shall be used to calculate the volatilization rate.
(ii) If the release would occur onto a surface that is not paved or
smooth, the owner or operator may take into account the actual surface
characteristics.
(2) The volatilization rate shall account for the highest daily
maximum temperature occurring in the past three years, the temperature
of the substance in the vessel, and the concentration of the substance
if the liquid spilled is a mixture or solution.
(3) The rate of release to air shall be determined from the
volatilization rate of the liquid pool. The owner or operator may use
the methodology in the RMP Offsite Consequence Analysis Guidance or any
other publicly available techniques that account for the modeling
conditions and are recognized by industry as applicable as part of
current practices. Proprietary models that account for the modeling
conditions may be used provided the owner or operator allows the
implementing agency access to the model and describes model features and
differences from publicly available models to local emergency planners
upon request.
(e) Worst-case release scenario--flammable gases. The owner or
operator shall assume that the quantity of the substance, as determined
under paragraph (b) of this section and the provisions below, vaporizes
resulting in a vapor cloud explosion. A yield factor of 10 percent of
the available energy released in the explosion shall be used to
determine the distance to the explosion endpoint if the model used is
based on TNT equivalent methods.
(1) For regulated flammable substances that are normally gases at
ambient temperature and handled as a gas or as a liquid under pressure,
the owner or operator shall assume that the quantity in the vessel or
pipe, as determined under paragraph (b) of this section, is released as
a gas over 10 minutes. The total quantity shall be assumed to be
involved in the vapor cloud explosion.
(2) For flammable gases handled as refrigerated liquids at ambient
pressure:
(i) If the released substance is not contained by passive mitigation
systems or if the contained pool would have a depth of one centimeter or
less, the owner or operator shall assume that the total quantity of the
substance is released as a gas in 10 minutes, and the total quantity
will be involved in the vapor cloud explosion.
(ii) If the released substance is contained by passive mitigation
systems in a pool with a depth greater than 1 centimeter, the owner or
operator may assume that the quantity in the vessel or pipe, as
determined under paragraph (b) of this section, is spilled
instantaneously to form a liquid pool. The volatilization rate (release
rate) shall be calculated at the boiling point of the substance and at
the conditions specified in paragraph (d) of this section. The owner or
operator shall assume that the quantity which becomes vapor in the first
10 minutes is involved in the vapor cloud explosion.
(f) Worst-case release scenario--flammable liquids. The owner or
operator shall assume that the quantity of the substance, as determined
under paragraph (b) of this section and the provisions below, vaporizes
resulting in a vapor cloud explosion. A yield factor of 10 percent of
the available energy released in the explosion shall be used to
determine the distance to the explosion endpoint if the model used is
based on TNT equivalent methods.
(1) For regulated flammable substances that are normally liquids at
ambient temperature, the owner or operator shall assume that the entire
quantity in the vessel or pipe, as determined under paragraph (b) of
this section, is spilled instantaneously to form a liquid pool. For
liquids at temperatures below their atmospheric boiling point, the
volatilization rate shall be calculated at the conditions specified in
paragraph (d) of this section.
(2) The owner or operator shall assume that the quantity which
becomes vapor in the first 10 minutes is involved in the vapor cloud
explosion.
[[Page 45]]
(g) Parameters to be applied. The owner or operator shall use the
parameters defined in Sec. 68.22 to determine distance to the endpoints.
The owner or operator may use the methodology provided in the RMP
Offsite Consequence Analysis Guidance or any commercially or publicly
available air dispersion modeling techniques, provided the techniques
account for the modeling conditions and are recognized by industry as
applicable as part of current practices. Proprietary models that account
for the modeling conditions may be used provided the owner or operator
allows the implementing agency access to the model and describes model
features and differences from publicly available models to local
emergency planners upon request.
(h) Consideration of passive mitigation. Passive mitigation systems
may be considered for the analysis of worst case provided that the
mitigation system is capable of withstanding the release event
triggering the scenario and would still function as intended.
(i) Factors in selecting a worst-case scenario. Notwithstanding the
provisions of paragraph (b) of this section, the owner or operator shall
select as the worst case for flammable regulated substances or the worst
case for regulated toxic substances, a scenario based on the following
factors if such a scenario would result in a greater distance to an
endpoint defined in Sec. 68.22(a) beyond the stationary source boundary
than the scenario provided under paragraph (b) of this section:
(1) Smaller quantities handled at higher process temperature or
pressure; and
(2) Proximity to the boundary of the stationary source.
[61 FR 31718, June 20, 1996, as amended at 64 FR 28700, May 26, 1999]
Sec. 68.28 Alternative release scenario analysis.
(a) The number of scenarios. The owner or operator shall identify
and analyze at least one alternative release scenario for each regulated
toxic substance held in a covered process(es) and at least one
alternative release scenario to represent all flammable substances held
in covered processes.
(b) Scenarios to consider. (1) For each scenario required under
paragraph (a) of this section, the owner or operator shall select a
scenario:
(i) That is more likely to occur than the worst-case release
scenario under Sec. 68.25; and
(ii) That will reach an endpoint offsite, unless no such scenario
exists.
(2) Release scenarios considered should include, but are not limited
to, the following, where applicable:
(i) Transfer hose releases due to splits or sudden hose uncoupling;
(ii) Process piping releases from failures at flanges, joints,
welds, valves and valve seals, and drains or bleeds;
(iii) Process vessel or pump releases due to cracks, seal failure,
or drain, bleed, or plug failure;
(iv) Vessel overfilling and spill, or overpressurization and venting
through relief valves or rupture disks; and
(v) Shipping container mishandling and breakage or puncturing
leading to a spill.
(c) Parameters to be applied. The owner or operator shall use the
appropriate parameters defined in Sec. 68.22 to determine distance to
the endpoints. The owner or operator may use either the methodology
provided in the RMP Offsite Consequence Analysis Guidance or any
commercially or publicly available air dispersion modeling techniques,
provided the techniques account for the specified modeling conditions
and are recognized by industry as applicable as part of current
practices. Proprietary models that account for the modeling conditions
may be used provided the owner or operator allows the implementing
agency access to the model and describes model features and differences
from publicly available models to local emergency planners upon request.
(d) Consideration of mitigation. Active and passive mitigation
systems may be considered provided they are capable of withstanding the
event that triggered the release and would still be functional.
(e) Factors in selecting scenarios. The owner or operator shall
consider the following in selecting alternative release scenarios:
(1) The five-year accident history provided in Sec. 68.42; and
[[Page 46]]
(2) Failure scenarios identified under Sec. 68.50 or Sec. 68.67.
Sec. 68.30 Defining offsite impacts--population.
(a) The owner or operator shall estimate in the RMP the population
within a circle with its center at the point of the release and a radius
determined by the distance to the endpoint defined in Sec. 68.22(a).
(b) Population to be defined. Population shall include residential
population. The presence of institutions (schools, hospitals, prisons),
parks and recreational areas, and major commercial, office, and
industrial buildings shall be noted in the RMP.
(c) Data sources acceptable. The owner or operator may use the most
recent Census data, or other updated information, to estimate the
population potentially affected.
(d) Level of accuracy. Population shall be estimated to two
significant digits.
Sec. 68.33 Defining offsite impacts--environment.
(a) The owner or operator shall list in the RMP environmental
receptors within a circle with its center at the point of the release
and a radius determined by the distance to the endpoint defined in
Sec. 68.22(a) of this part.
(b) Data sources acceptable. The owner or operator may rely on
information provided on local U.S. Geological Survey maps or on any data
source containing U.S.G.S. data to identify environmental receptors.
68.36 Review and update.
(a) The owner or operator shall review and update the offsite
consequence analyses at least once every five years.
(b) If changes in processes, quantities stored or handled, or any
other aspect of the stationary source might reasonably be expected to
increase or decrease the distance to the endpoint by a factor of two or
more, the owner or operator shall complete a revised analysis within six
months of the change and submit a revised risk management plan as
provided in Sec. 68.190.
Sec. 68.39 Documentation.
The owner or operator shall maintain the following records on the
offsite consequence analyses:
(a) For worst-case scenarios, a description of the vessel or
pipeline and substance selected as worst case, assumptions and
parameters used, and the rationale for selection; assumptions shall
include use of any administrative controls and any passive mitigation
that were assumed to limit the quantity that could be released.
Documentation shall include the anticipated effect of the controls and
mitigation on the release quantity and rate.
(b) For alternative release scenarios, a description of the
scenarios identified, assumptions and parameters used, and the rationale
for the selection of specific scenarios; assumptions shall include use
of any administrative controls and any mitigation that were assumed to
limit the quantity that could be released. Documentation shall include
the effect of the controls and mitigation on the release quantity and
rate.
(c) Documentation of estimated quantity released, release rate, and
duration of release.
(d) Methodology used to determine distance to endpoints.
(e) Data used to estimate population and environmental receptors
potentially affected.
Sec. 68.42 Five-year accident history.
(a) The owner or operator shall include in the five-year accident
history all accidental releases from covered processes that resulted in
deaths, injuries, or significant property damage on site, or known
offsite deaths, injuries, evacuations, sheltering in place, property
damage, or environmental damage.
(b) Data required. For each accidental release included, the owner
or operator shall report the following information:
(1) Date, time, and approximate duration of the release;
(2) Chemical(s) released;
(3) Estimated quantity released in pounds and, for mixtures
containing regulated toxic substances, percentage concentration by
weight of the released regulated toxic substance in the liquid mixture;
[[Page 47]]
(4) Five- or six-digit NAICS code that most closely corresponds to
the process;
(5) The type of release event and its source;
(6) Weather conditions, if known;
(7) On-site impacts;
(8) Known offsite impacts;
(9) Initiating event and contributing factors if known;
(10) Whether offsite responders were notified if known; and
(11) Operational or process changes that resulted from investigation
of the release.
(c) Level of accuracy. Numerical estimates may be provided to two
significant digits.
[61 FR 31718, June 20, 1996, as amended at 64 FR 979, Jan. 6, 1999]
Subpart C--Program 2 Prevention Program
Source: 61 FR 31721, June 20, 1996, unless otherwise noted.
Sec. 68.48 Safety information.
(a) The owner or operator shall compile and maintain the following
up-to-date safety information related to the regulated substances,
processes, and equipment:
(1) Material Safety Data Sheets that meet the requirements of 29 CFR
1910.1200(g);
(2) Maximum intended inventory of equipment in which the regulated
substances are stored or processed;
(3) Safe upper and lower temperatures, pressures, flows, and
compositions;
(4) Equipment specifications; and
(5) Codes and standards used to design, build, and operate the
process.
(b) The owner or operator shall ensure that the process is designed
in compliance with recognized and generally accepted good engineering
practices. Compliance with Federal or state regulations that address
industry-specific safe design or with industry-specific design codes and
standards may be used to demonstrate compliance with this paragraph.
(c) The owner or operator shall update the safety information if a
major change occurs that makes the information inaccurate.
Sec. 68.50 Hazard review.
(a) The owner or operator shall conduct a review of the hazards
associated with the regulated substances, process, and procedures. The
review shall identify the following:
(1) The hazards associated with the process and regulated
substances;
(2) Opportunities for equipment malfunctions or human errors that
could cause an accidental release;
(3) The safeguards used or needed to control the hazards or prevent
equipment malfunction or human error; and
(4) Any steps used or needed to detect or monitor releases.
(b) The owner or operator may use checklists developed by persons or
organizations knowledgeable about the process and equipment as a guide
to conducting the review. For processes designed to meet industry
standards or Federal or state design rules, the hazard review shall, by
inspecting all equipment, determine whether the process is designed,
fabricated, and operated in accordance with the applicable standards or
rules.
(c) The owner or operator shall document the results of the review
and ensure that problems identified are resolved in a timely manner.
(d) The review shall be updated at least once every five years. The
owner or operator shall also conduct reviews whenever a major change in
the process occurs; all issues identified in the review shall be
resolved before startup of the changed process.
Sec. 68.52 Operating procedures.
(a) The owner or operator shall prepare written operating procedures
that provide clear instructions or steps for safely conducting
activities associated with each covered process consistent with the
safety information for that process. Operating procedures or
instructions provided by equipment manufacturers or developed by persons
or organizations knowledgeable about the process and equipment may be
used as a basis for a stationary source's operating procedures.
(b) The procedures shall address the following:
[[Page 48]]
(1) Initial startup;
(2) Normal operations;
(3) Temporary operations;
(4) Emergency shutdown and operations;
(5) Normal shutdown;
(6) Startup following a normal or emergency shutdown or a major
change that requires a hazard review;
(7) Consequences of deviations and steps required to correct or
avoid deviations; and
(8) Equipment inspections.
(c) The owner or operator shall ensure that the operating procedures
are updated, if necessary, whenever a major change occurs and prior to
startup of the changed process.
Sec. 68.54 Training.
(a) The owner or operator shall ensure that each employee presently
operating a process, and each employee newly assigned to a covered
process have been trained or tested competent in the operating
procedures provided in Sec. 68.52 that pertain to their duties. For
those employees already operating a process on June 21, 1999, the owner
or operator may certify in writing that the employee has the required
knowledge, skills, and abilities to safely carry out the duties and
responsibilities as provided in the operating procedures.
(b) Refresher training. Refresher training shall be provided at
least every three years, and more often if necessary, to each employee
operating a process to ensure that the employee understands and adheres
to the current operating procedures of the process. The owner or
operator, in consultation with the employees operating the process,
shall determine the appropriate frequency of refresher training.
(c) The owner or operator may use training conducted under Federal
or state regulations or under industry-specific standards or codes or
training conducted by covered process equipment vendors to demonstrate
compliance with this section to the extent that the training meets the
requirements of this section.
(d) The owner or operator shall ensure that operators are trained in
any updated or new procedures prior to startup of a process after a
major change.
Sec. 68.56 Maintenance.
(a) The owner or operator shall prepare and implement procedures to
maintain the on-going mechanical integrity of the process equipment. The
owner or operator may use procedures or instructions provided by covered
process equipment vendors or procedures in Federal or state regulations
or industry codes as the basis for stationary source maintenance
procedures.
(b) The owner or operator shall train or cause to be trained each
employee involved in maintaining the on-going mechanical integrity of
the process. To ensure that the employee can perform the job tasks in a
safe manner, each such employee shall be trained in the hazards of the
process, in how to avoid or correct unsafe conditions, and in the
procedures applicable to the employee's job tasks.
(c) Any maintenance contractor shall ensure that each contract
maintenance employee is trained to perform the maintenance procedures
developed under paragraph (a) of this section.
(d) The owner or operator shall perform or cause to be performed
inspections and tests on process equipment. Inspection and testing
procedures shall follow recognized and generally accepted good
engineering practices. The frequency of inspections and tests of process
equipment shall be consistent with applicable manufacturers'
recommendations, industry standards or codes, good engineering
practices, and prior operating experience.
Sec. 68.58 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart at least every three
years to verify that the procedures and practices developed under the
rule are adequate and are being followed.
(b) The compliance audit shall be conducted by at least one person
knowledgeable in the process.
(c) The owner or operator shall develop a report of the audit
findings.
(d) The owner or operator shall promptly determine and document an
[[Page 49]]
appropriate response to each of the findings of the compliance audit and
document that deficiencies have been corrected.
(e) The owner or operator shall retain the two (2) most recent
compliance audit reports. This requirement does not apply to any
compliance audit report that is more than five years old.
Sec. 68.60 Incident investigation.
(a) The owner or operator shall investigate each incident which
resulted in, or could reasonably have resulted in a catastrophic
release.
(b) An incident investigation shall be initiated as promptly as
possible, but not later than 48 hours following the incident.
(c) A summary shall be prepared at the conclusion of the
investigation which includes at a minimum:
(1) Date of incident;
(2) Date investigation began;
(3) A description of the incident;
(4) The factors that contributed to the incident; and,
(5) Any recommendations resulting from the investigation.
(d) The owner or operator shall promptly address and resolve the
investigation findings and recommendations. Resolutions and corrective
actions shall be documented.
(e) The findings shall be reviewed with all affected personnel whose
job tasks are affected by the findings.
(f) Investigation summaries shall be retained for five years.
Subpart D--Program 3 Prevention Program
Source: 61 FR 31722, June 20, 1996, unless otherwise noted.
Sec. 68.65 Process safety information.
(a) In accordance with the schedule set forth in Sec. 68.67, the
owner or operator shall complete a compilation of written process safety
information before conducting any process hazard analysis required by
the rule. The compilation of written process safety information is to
enable the owner or operator and the employees involved in operating the
process to identify and understand the hazards posed by those processes
involving regulated substances. This process safety information shall
include information pertaining to the hazards of the regulated
substances used or produced by the process, information pertaining to
the technology of the process, and information pertaining to the
equipment in the process.
(b) Information pertaining to the hazards of the regulated
substances in the process. This information shall consist of at least
the following:
(1) Toxicity information;
(2) Permissible exposure limits;
(3) Physical data;
(4) Reactivity data:
(5) Corrosivity data;
(6) Thermal and chemical stability data; and
(7) Hazardous effects of inadvertent mixing of different materials
that could foreseeably occur.
Note to paragraph (b):
Material Safety Data Sheets meeting the requirements of 29 CFR
1910.1200(g) may be used to comply with this requirement to the extent
they contain the information required by this subparagraph.
(c) Information pertaining to the technology of the process.
(1) Information concerning the technology of the process shall
include at least the following:
(i) A block flow diagram or simplified process flow diagram;
(ii) Process chemistry;
(iii) Maximum intended inventory;
(iv) Safe upper and lower limits for such items as temperatures,
pressures, flows or compositions; and,
(v) An evaluation of the consequences of deviations.
(2) Where the original technical information no longer exists, such
information may be developed in conjunction with the process hazard
analysis in sufficient detail to support the analysis.
(d) Information pertaining to the equipment in the process.
(1) Information pertaining to the equipment in the process shall
include:
(i) Materials of construction;
(ii) Piping and instrument diagrams (P&ID's);
(iii) Electrical classification;
(iv) Relief system design and design basis;
(v) Ventilation system design;
[[Page 50]]
(vi) Design codes and standards employed;
(vii) Material and energy balances for processes built after June
21, 1999; and
(viii) Safety systems (e.g. interlocks, detection or suppression
systems).
(2) The owner or operator shall document that equipment complies
with recognized and generally accepted good engineering practices.
(3) For existing equipment designed and constructed in accordance
with codes, standards, or practices that are no longer in general use,
the owner or operator shall determine and document that the equipment is
designed, maintained, inspected, tested, and operating in a safe manner.
Sec. 68.67 Process hazard analysis.
(a) The owner or operator shall perform an initial process hazard
analysis (hazard evaluation) on processes covered by this part. The
process hazard analysis shall be appropriate to the complexity of the
process and shall identify, evaluate, and control the hazards involved
in the process. The owner or operator shall determine and document the
priority order for conducting process hazard analyses based on a
rationale which includes such considerations as extent of the process
hazards, number of potentially affected employees, age of the process,
and operating history of the process. The process hazard analysis shall
be conducted as soon as possible, but not later than June 21, 1999.
Process hazards analyses completed to comply with 29 CFR 1910.119(e) are
acceptable as initial process hazards analyses. These process hazard
analyses shall be updated and revalidated, based on their completion
date.
(b) The owner or operator shall use one or more of the following
methodologies that are appropriate to determine and evaluate the hazards
of the process being analyzed.
(1) What-If;
(2) Checklist;
(3) What-If/Checklist;
(4) Hazard and Operability Study (HAZOP);
(5) Failure Mode and Effects Analysis (FMEA);
(6) Fault Tree Analysis; or
(7) An appropriate equivalent methodology.
(c) The process hazard analysis shall address:
(1) The hazards of the process;
(2) The identification of any previous incident which had a likely
potential for catastrophic consequences.
(3) Engineering and administrative controls applicable to the
hazards and their interrelationships such as appropriate application of
detection methodologies to provide early warning of releases.
(Acceptable detection methods might include process monitoring and
control instrumentation with alarms, and detection hardware such as
hydrocarbon sensors.);
(4) Consequences of failure of engineering and administrative
controls;
(5) Stationary source siting;
(6) Human factors; and
(7) A qualitative evaluation of a range of the possible safety and
health effects of failure of controls.
(d) The process hazard analysis shall be performed by a team with
expertise in engineering and process operations, and the team shall
include at least one employee who has experience and knowledge specific
to the process being evaluated. Also, one member of the team must be
knowledgeable in the specific process hazard analysis methodology being
used.
(e) The owner or operator shall establish a system to promptly
address the team's findings and recommendations; assure that the
recommendations are resolved in a timely manner and that the resolution
is documented; document what actions are to be taken; complete actions
as soon as possible; develop a written schedule of when these actions
are to be completed; communicate the actions to operating, maintenance
and other employees whose work assignments are in the process and who
may be affected by the recommendations or actions.
(f) At least every five (5) years after the completion of the
initial process hazard analysis, the process hazard analysis shall be
updated and revalidated by a team meeting the requirements in paragraph
(d) of this section, to assure that the process hazard analysis is
consistent with the current
[[Page 51]]
process. Updated and revalidated process hazard analyses completed to
comply with 29 CFR 1910.119(e) are acceptable to meet the requirements
of this paragraph.
(g) The owner or operator shall retain process hazards analyses and
updates or revalidations for each process covered by this section, as
well as the documented resolution of recommendations described in
paragraph (e) of this section for the life of the process.
Sec. 68.69 Operating procedures.
(a) The owner or operator shall develop and implement written
operating procedures that provide clear instructions for safely
conducting activities involved in each covered process consistent with
the process safety information and shall address at least the following
elements.
(1) Steps for each operating phase:
(i) Initial startup;
(ii) Normal operations;
(iii) Temporary operations;
(iv) Emergency shutdown including the conditions under which
emergency shutdown is required, and the assignment of shutdown
responsibility to qualified operators to ensure that emergency shutdown
is executed in a safe and timely manner.
(v) Emergency operations;
(vi) Normal shutdown; and,
(vii) Startup following a turnaround, or after an emergency
shutdown.
(2) Operating limits:
(i) Consequences of deviation; and
(ii) Steps required to correct or avoid deviation.
(3) Safety and health considerations:
(i) Properties of, and hazards presented by, the chemicals used in
the process;
(ii) Precautions necessary to prevent exposure, including
engineering controls, administrative controls, and personal protective
equipment;
(iii) Control measures to be taken if physical contact or airborne
exposure occurs;
(iv) Quality control for raw materials and control of hazardous
chemical inventory levels; and,
(v) Any special or unique hazards.
(4) Safety systems and their functions.
(b) Operating procedures shall be readily accessible to employees
who work in or maintain a process.
(c) The operating procedures shall be reviewed as often as necessary
to assure that they reflect current operating practice, including
changes that result from changes in process chemicals, technology, and
equipment, and changes to stationary sources. The owner or operator
shall certify annually that these operating procedures are current and
accurate.
(d) The owner or operator shall develop and implement safe work
practices to provide for the control of hazards during operations such
as lockout/tagout; confined space entry; opening process equipment or
piping; and control over entrance into a stationary source by
maintenance, contractor, laboratory, or other support personnel. These
safe work practices shall apply to employees and contractor employees.
Sec. 68.71 Training.
(a) Initial training. (1) Each employee presently involved in
operating a process, and each employee before being involved in
operating a newly assigned process, shall be trained in an overview of
the process and in the operating procedures as specified in Sec. 68.69.
The training shall include emphasis on the specific safety and health
hazards, emergency operations including shutdown, and safe work
practices applicable to the employee's job tasks.
(2) In lieu of initial training for those employees already involved
in operating a process on June 21, 1999 an owner or operator may certify
in writing that the employee has the required knowledge, skills, and
abilities to safely carry out the duties and responsibilities as
specified in the operating procedures.
(b) Refresher training. Refresher training shall be provided at
least every three years, and more often if necessary, to each employee
involved in operating a process to assure that the employee understands
and adheres to the current operating procedures of the process. The
owner or operator, in consultation with the employees involved
[[Page 52]]
in operating the process, shall determine the appropriate frequency of
refresher training.
(c) Training documentation. The owner or operator shall ascertain
that each employee involved in operating a process has received and
understood the training required by this paragraph. The owner or
operator shall prepare a record which contains the identity of the
employee, the date of training, and the means used to verify that the
employee understood the training.
Sec. 68.73 Mechanical integrity.
(a) Application. Paragraphs (b) through (f) of this section apply to
the following process equipment:
(1) Pressure vessels and storage tanks;
(2) Piping systems (including piping components such as valves);
(3) Relief and vent systems and devices;
(4) Emergency shutdown systems;
(5) Controls (including monitoring devices and sensors, alarms, and
interlocks) and,
(6) Pumps.
(b) Written procedures. The owner or operator shall establish and
implement written procedures to maintain the on-going integrity of
process equipment.
(c) Training for process maintenance activities. The owner or
operator shall train each employee involved in maintaining the on-going
integrity of process equipment in an overview of that process and its
hazards and in the procedures applicable to the employee's job tasks to
assure that the employee can perform the job tasks in a safe manner.
(d) Inspection and testing. (1) Inspections and tests shall be
performed on process equipment.
(2) Inspection and testing procedures shall follow recognized and
generally accepted good engineering practices.
(3) The frequency of inspections and tests of process equipment
shall be consistent with applicable manufacturers' recommendations and
good engineering practices, and more frequently if determined to be
necessary by prior operating experience.
(4) The owner or operator shall document each inspection and test
that has been performed on process equipment. The documentation shall
identify the date of the inspection or test, the name of the person who
performed the inspection or test, the serial number or other identifier
of the equipment on which the inspection or test was performed, a
description of the inspection or test performed, and the results of the
inspection or test.
(e) Equipment deficiencies. The owner or operator shall correct
deficiencies in equipment that are outside acceptable limits (defined by
the process safety information in Sec. 68.65) before further use or in a
safe and timely manner when necessary means are taken to assure safe
operation.
(f) Quality assurance. (1) In the construction of new plants and
equipment, the owner or operator shall assure that equipment as it is
fabricated is suitable for the process application for which they will
be used.
(2) Appropriate checks and inspections shall be performed to assure
that equipment is installed properly and consistent with design
specifications and the manufacturer's instructions.
(3) The owner or operator shall assure that maintenance materials,
spare parts and equipment are suitable for the process application for
which they will be used.
Sec. 68.75 Management of change.
(a) The owner or operator shall establish and implement written
procedures to manage changes (except for ``replacements in kind'') to
process chemicals, technology, equipment, and procedures; and, changes
to stationary sources that affect a covered process.
(b) The procedures shall assure that the following considerations
are addressed prior to any change:
(1) The technical basis for the proposed change;
(2) Impact of change on safety and health;
(3) Modifications to operating procedures;
(4) Necessary time period for the change; and,
(5) Authorization requirements for the proposed change.
(c) Employees involved in operating a process and maintenance and
contract employees whose job tasks will be affected by a change in the
process shall
[[Page 53]]
be informed of, and trained in, the change prior to start-up of the
process or affected part of the process.
(d) If a change covered by this paragraph results in a change in the
process safety information required by Sec. 68.65 of this part, such
information shall be updated accordingly.
(e) If a change covered by this paragraph results in a change in the
operating procedures or practices required by Sec. 68.69, such
procedures or practices shall be updated accordingly.
Sec. 68.77 Pre-startup review.
(a) The owner or operator shall perform a pre-startup safety review
for new stationary sources and for modified stationary sources when the
modification is significant enough to require a change in the process
safety information.
(b) The pre-startup safety review shall confirm that prior to the
introduction of regulated substances to a process:
(1) Construction and equipment is in accordance with design
specifications;
(2) Safety, operating, maintenance, and emergency procedures are in
place and are adequate;
(3) For new stationary sources, a process hazard analysis has been
performed and recommendations have been resolved or implemented before
startup; and modified stationary sources meet the requirements contained
in management of change, Sec. 68.75.
(4) Training of each employee involved in operating a process has
been completed.
Sec. 68.79 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart at least every three
years to verify that procedures and practices developed under this
subpart are adequate and are being followed.
(b) The compliance audit shall be conducted by at least one person
knowledgeable in the process.
(c) A report of the findings of the audit shall be developed.
(d) The owner or operator shall promptly determine and document an
appropriate response to each of the findings of the compliance audit,
and document that deficiencies have been corrected.
(e) The owner or operator shall retain the two (2) most recent
compliance audit reports.
[61 FR 31722, June 20, 1996, as amended at 64 FR 979, Jan. 6, 1999]
Sec. 68.81 Incident investigation.
(a) The owner or operator shall investigate each incident which
resulted in, or could reasonably have resulted in a catastrophic release
of a regulated substance.
(b) An incident investigation shall be initiated as promptly as
possible, but not later than 48 hours following the incident.
(c) An incident investigation team shall be established and consist
of at least one person knowledgeable in the process involved, including
a contract employee if the incident involved work of the contractor, and
other persons with appropriate knowledge and experience to thoroughly
investigate and analyze the incident.
(d) A report shall be prepared at the conclusion of the
investigation which includes at a minimum:
(1) Date of incident;
(2) Date investigation began;
(3) A description of the incident;
(4) The factors that contributed to the incident; and,
(5) Any recommendations resulting from the investigation.
(e) The owner or operator shall establish a system to promptly
address and resolve the incident report findings and recommendations.
Resolutions and corrective actions shall be documented.
(f) The report shall be reviewed with all affected personnel whose
job tasks are relevant to the incident findings including contract
employees where applicable.
(g) Incident investigation reports shall be retained for five years.
Sec. 68.83 Employee participation.
(a) The owner or operator shall develop a written plan of action
regarding the implementation of the employee participation required by
this section.
[[Page 54]]
(b) The owner or operator shall consult with employees and their
representatives on the conduct and development of process hazards
analyses and on the development of the other elements of process safety
management in this rule.
(c) The owner or operator shall provide to employees and their
representatives access to process hazard analyses and to all other
information required to be developed under this rule.
Sec. 68.85 Hot work permit.
(a) The owner or operator shall issue a hot work permit for hot work
operations conducted on or near a covered process.
(b) The permit shall document that the fire prevention and
protection requirements in 29 CFR 1910.252(a) have been implemented
prior to beginning the hot work operations; it shall indicate the
date(s) authorized for hot work; and identify the object on which hot
work is to be performed. The permit shall be kept on file until
completion of the hot work operations.
Sec. 68.87 Contractors.
(a) Application. This section applies to contractors performing
maintenance or repair, turnaround, major renovation, or specialty work
on or adjacent to a covered process. It does not apply to contractors
providing incidental services which do not influence process safety,
such as janitorial work, food and drink services, laundry, delivery or
other supply services.
(b) Owner or operator responsibilities. (1) The owner or operator,
when selecting a contractor, shall obtain and evaluate information
regarding the contract owner or operator's safety performance and
programs.
(2) The owner or operator shall inform contract owner or operator of
the known potential fire, explosion, or toxic release hazards related to
the contractor's work and the process.
(3) The owner or operator shall explain to the contract owner or
operator the applicable provisions of subpart E of this part.
(4) The owner or operator shall develop and implement safe work
practices consistent with Sec. 68.69(d), to control the entrance,
presence, and exit of the contract owner or operator and contract
employees in covered process areas.
(5) The owner or operator shall periodically evaluate the
performance of the contract owner or operator in fulfilling their
obligations as specified in paragraph (c) of this section.
(c) Contract owner or operator responsibilities. (1) The contract
owner or operator shall assure that each contract employee is trained in
the work practices necessary to safely perform his/her job.
(2) The contract owner or operator shall assure that each contract
employee is instructed in the known potential fire, explosion, or toxic
release hazards related to his/her job and the process, and the
applicable provisions of the emergency action plan.
(3) The contract owner or operator shall document that each contract
employee has received and understood the training required by this
section. The contract owner or operator shall prepare a record which
contains the identity of the contract employee, the date of training,
and the means used to verify that the employee understood the training.
(4) The contract owner or operator shall assure that each contract
employee follows the safety rules of the stationary source including the
safe work practices required by Sec. 68.69(d).
(5) The contract owner or operator shall advise the owner or
operator of any unique hazards presented by the contract owner or
operator's work, or of any hazards found by the contract owner or
operator's work.
Subpart E--Emergency Response
Source: 61 FR 31725, June 20, 1996, unless otherwise noted.
Sec. 68.90 Applicability.
(a) Except as provided in paragraph (b) of this section, the owner
or operator of a stationary source with Program 2 and Program 3
processes shall comply with the requirements of Sec. 68.95.
(b) The owner or operator of stationary source whose employees will
not respond to accidental releases of regulated substances need not
comply
[[Page 55]]
with Sec. 68.95 of this part provided that they meet the following:
(1) For stationary sources with any regulated toxic substance held
in a process above the threshold quantity, the stationary source is
included in the community emergency response plan developed under 42
U.S.C. 11003;
(2) For stationary sources with only regulated flammable substances
held in a process above the threshold quantity, the owner or operator
has coordinated response actions with the local fire department; and
(3) Appropriate mechanisms are in place to notify emergency
responders when there is a need for a response.
Sec. 68.95 Emergency response program.
(a) The owner or operator shall develop and implement an emergency
response program for the purpose of protecting public health and the
environment. Such program shall include the following elements:
(1) An emergency response plan, which shall be maintained at the
stationary source and contain at least the following elements:
(i) Procedures for informing the public and local emergency response
agencies about accidental releases;
(ii) Documentation of proper first-aid and emergency medical
treatment necessary to treat accidental human exposures; and
(iii) Procedures and measures for emergency response after an
accidental release of a regulated substance;
(2) Procedures for the use of emergency response equipment and for
its inspection, testing, and maintenance;
(3) Training for all employees in relevant procedures; and
(4) Procedures to review and update, as appropriate, the emergency
response plan to reflect changes at the stationary source and ensure
that employees are informed of changes.
(b) A written plan that complies with other Federal contingency plan
regulations or is consistent with the approach in the National Response
Team's Integrated Contingency Plan Guidance (``One Plan'') and that,
among other matters, includes the elements provided in paragraph (a) of
this section, shall satisfy the requirements of this section if the
owner or operator also complies with paragraph (c) of this section.
(c) The emergency response plan developed under paragraph (a)(1) of
this section shall be coordinated with the community emergency response
plan developed under 42 U.S.C. 11003. Upon request of the local
emergency planning committee or emergency response officials, the owner
or operator shall promptly provide to the local emergency response
officials information necessary for developing and implementing the
community emergency response plan.
Subpart F--Regulated Substances for Accidental Release Prevention
Source: 59 FR 4493, Jan. 31, 1994, unless otherwise noted.
Redesignated at 61 FR 31717, June 20, 1996.
Sec. 68.100 Purpose.
This subpart designates substances to be listed under section
112(r)(3), (4), and (5) of the Clean Air Act, as amended, identifies
their threshold quantities, and establishes the requirements for
petitioning to add or delete substances from the list.
Sec. 68.115 Threshold determination.
(a) A threshold quantity of a regulated substance listed in
Sec. 68.130 is present at a stationary source if the total quantity of
the regulated substance contained in a process exceeds the threshold.
(b) For the purposes of determining whether more than a threshold
quantity of a regulated substance is present at the stationary source,
the following exemptions apply:
(1) Concentrations of a regulated toxic substance in a mixture. If a
regulated substance is present in a mixture and the concentration of the
substance is below one percent by weight of the mixture, the amount of
the substance in the mixture need not be considered when determining
whether more than a threshold quantity is present at the stationary
source. Except for oleum, toluene 2,4-diisocyanate, toluene 2,6-
diisocyanate, and toluene diisocyanate (unspecified isomer), if the
concentration of the regulated substance in the mixture is one percent
or greater by
[[Page 56]]
weight, but the owner or operator can demonstrate that the partial
pressure of the regulated substance in the mixture (solution) under
handling or storage conditions in any portion of the process is less
than 10 millimeters of mercury (mm Hg), the amount of the substance in
the mixture in that portion of the process need not be considered when
determining whether more than a threshold quantity is present at the
stationary source. The owner or operator shall document this partial
pressure measurement or estimate.
(2) Concentrations of a regulated flammable substance in a mixture.
(i) General provision. If a regulated substance is present in a mixture
and the concentration of the substance is below one percent by weight of
the mixture, the mixture need not be considered when determining whether
more than a threshold quantity of the regulated substance is present at
the stationary source. Except as provided in paragraph (b)(2) (ii) and
(iii) of this section, if the concentration of the substance is one
percent or greater by weight of the mixture, then, for purposes of
determining whether a threshold quantity is present at the stationary
source, the entire weight of the mixture shall be treated as the
regulated substance unless the owner or operator can demonstrate that
the mixture itself does not have a National Fire Protection Association
flammability hazard rating of 4. The demonstration shall be in
accordance with the definition of flammability hazard rating 4 in the
NFPA 704, Standard System for the Identification of the Hazards of
Materials for Emergency Response, National Fire Protection Association,
Quincy, MA, 1996. Available from the National Fire Protection
Association, 1 Batterymarch Park, Quincy, MA 02269-9101. This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected at the Environmental Protection Agency Air Docket
(6102), Attn: Docket No. A-96-O8, Waterside Mall, 401 M. St. SW.,
Washington DC; or at the Office of Federal Register at 800 North Capitol
St., NW, Suite 700, Washington, DC. Boiling point and flash point shall
be defined and determined in accordance with NFPA 30, Flammable and
Combustible Liquids Code, National Fire Protection Association, Quincy,
MA, 1996. Available from the National Fire Protection Association, 1
Batterymarch Park, Quincy, MA 02269-9101. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected at the Environmental Protection Agency Air Docket (6102),
Attn: Docket No. A-96-O8, Waterside Mall, 401 M. St. SW., Washington DC;
or at the Office of Federal Register at 800 North Capitol St., NW.,
Suite 700, Washington, DC. The owner or operator shall document the
National Fire Protection Association flammability hazard rating.
(ii) Gasoline. Regulated substances in gasoline, when in
distribution or related storage for use as fuel for internal combustion
engines, need not be considered when determining whether more than a
threshold quantity is present at a stationary source.
(iii) Naturally occurring hydrocarbon mixtures. Prior to entry into
a natural gas processing plant or a petroleum refining process unit,
regulated substances in naturally occurring hydrocarbon mixtures need
not be considered when determining whether more than a threshold
quantity is present at a stationary source. Naturally occurring
hydrocarbon mixtures include any combination of the following:
condensate, crude oil, field gas, and produced water, each as defined in
Sec. 68.3 of this part.
(3) Articles. Regulated substances contained in articles need not be
considered when determining whether more than a threshold quantity is
present at the stationary source.
(4) Uses. Regulated substances, when in use for the following
purposes, need not be included in determining whether more than a
threshold quantity is present at the stationary source:
(i) Use as a structural component of the stationary source;
(ii) Use of products for routine janitorial maintenance;
(iii) Use by employees of foods, drugs, cosmetics, or other personal
items containing the regulated substance; and
[[Page 57]]
(iv) Use of regulated substances present in process water or non-
contact cooling water as drawn from the environment or municipal
sources, or use of regulated substances present in air used either as
compressed air or as part of combustion.
(5) Activities in laboratories. If a regulated substance is
manufactured, processed, or used in a laboratory at a stationary source
under the supervision of a technically qualified individual as defined
in Sec. 720.3(ee) of this chapter, the quantity of the substance need
not be considered in determining whether a threshold quantity is
present. This exemption does not apply to:
(i) Specialty chemical production;
(ii) Manufacture, processing, or use of substances in pilot plant
scale operations; and
(iii) Activities conducted outside the laboratory.
[59 FR 4493, Jan. 31, 1994. Redesignated at 61 FR 31717, June 20, 1996,
as amended at 63 FR 645, Jan. 6, 1998]
Sec. 68.120 Petition process.
(a) Any person may petition the Administrator to modify, by addition
or deletion, the list of regulated substances identified in Sec. 68.130.
Based on the information presented by the petitioner, the Administrator
may grant or deny a petition.
(b) A substance may be added to the list if, in the case of an
accidental release, it is known to cause or may be reasonably
anticipated to cause death, injury, or serious adverse effects to human
health or the environment.
(c) A substance may be deleted from the list if adequate data on the
health and environmental effects of the substance are available to
determine that the substance, in the case of an accidental release, is
not known to cause and may not be reasonably anticipated to cause death,
injury, or serious adverse effects to human health or the environment.
(d) No substance for which a national primary ambient air quality
standard has been established shall be added to the list. No substance
regulated under title VI of the Clean Air Act, as amended, shall be
added to the list.
(e) The burden of proof is on the petitioner to demonstrate that the
criteria for addition and deletion are met. A petition will be denied if
this demonstration is not made.
(f) The Administrator will not accept additional petitions on the
same substance following publication of a final notice of the decision
to grant or deny a petition, unless new data becomes available that
could significantly affect the basis for the decision.
(g) Petitions to modify the list of regulated substances must
contain the following:
(1) Name and address of the petitioner and a brief description of
the organization(s) that the petitioner represents, if applicable;
(2) Name, address, and telephone number of a contact person for the
petition;
(3) Common chemical name(s), common synonym(s), Chemical Abstracts
Service number, and chemical formula and structure;
(4) Action requested (add or delete a substance);
(5) Rationale supporting the petitioner's position; that is, how the
substance meets the criteria for addition and deletion. A short summary
of the rationale must be submitted along with a more detailed narrative;
and
(6) Supporting data; that is, the petition must include sufficient
information to scientifically support the request to modify the list.
Such information shall include:
(i) A list of all support documents;
(ii) Documentation of literature searches conducted, including, but
not limited to, identification of the database(s) searched, the search
strategy, dates covered, and printed results;
(iii) Effects data (animal, human, and environmental test data)
indicating the potential for death, injury, or serious adverse human and
environmental impacts from acute exposure following an accidental
release; printed copies of the data sources, in English, should be
provided; and
(iv) Exposure data or previous accident history data, indicating the
potential for serious adverse human health or environmental effects from
an accidental release. These data may
[[Page 58]]
include, but are not limited to, physical and chemical properties of the
substance, such as vapor pressure; modeling results, including data and
assumptions used and model documentation; and historical accident data,
citing data sources.
(h) Within 18 months of receipt of a petition, the Administrator
shall publish in the Federal Register a notice either denying the
petition or granting the petition and proposing a listing.
Sec. 68.125 Exemptions.
Agricultural nutrients. Ammonia used as an agricultural nutrient,
when held by farmers, is exempt from all provisions of this part.
Sec. 68.130 List of substances.
(a) Regulated toxic and flammable substances under section 112(r) of
the Clean Air Act are the substances listed in Tables 1, 2, 3, and 4.
Threshold quantities for listed toxic and flammable substances are
specified in the tables.
(b) The basis for placing toxic and flammable substances on the list
of regulated substances are explained in the notes to the list.
Table 1 to Sec. 68.130.--List of Regulated Toxic Substances and
Threshold Quantities for Accidental Release Prevention
[Alphabetical Order--77 Substances]
------------------------------------------------------------------------
Threshold
Chemical name CAS No. quantity Basis for
(lbs) listing
------------------------------------------------------------------------
Acrolein [2-Propenal].......... 107-02-8 5,000 b
Acrylonitrile [2- 107-13-1 20,000 b
Propenenitrile].
Acrylyl chloride [2-Propenoyl 814-68-6 5,000 b
chloride].
Allyl alcohol [2-Propen-l-ol].. 107-18-61 15,000 b
Allylamine [2-Propen-l-amine].. 107-11-9 10,000 b
Ammonia (anhydrous)............ 7664-41-7 10,000 a, b
Ammonia (conc 20% or greater).. 7664-41-7 20,000 a, b
Arsenous trichloride........... 7784-34-1 15,000 b
Arsine......................... 7784-42-1 1,000 b
Boron trichloride [Borane, 10294-34-5 5,000 b
trichloro-].
Boron trifluoride [Borane, 7637-07-2 5,000 b
trifluoro-].
Boron trifluoride compound with 353-42-4 15,000 b
methyl ether (1:1) [Boron,
trifluoro [oxybis [metane]]-,
T-4-.
Bromine........................ 7726-95-6 10,000 a, b
Carbon disulfide............... 75-15-0 20,000 b
Chlorine....................... 7782-50-5 2,500 a, b
Chlorine dioxide [Chlorine 10049-04-4 1,000 c
oxide (ClO2)].
Chloroform [Methane, trichloro- 67-66-3 20,000 b
].
Chloromethyl ether [Methane, 542-88-1 1,000 b
oxybis[chloro-].
Chloromethyl methyl ether 107-30-2 5,000 b
[Methane, chloromethoxy-].
Crotonaldehyde [2-Butenal]..... 4170-30-3 20,000 b
Crotonaldehyde, (E)- [2- 123-73-9 20,000 b
Butenal, (E)-].
Cyanogen chloride.............. 506-77-4 10,000 c
Cyclohexylamine 108-91-8 15,000 b
[Cyclohexanamine].
Diborane....................... 19287-45-7 2,500 b
Dimethyldichlorosilane [Silane, 75-78-5 5,000 b
dichlorodimethyl-].
1,1-Dimethylhydrazine 57-14-7 15,000 b
[Hydrazine, 1,1-dimethyl-].
Epichlorohydrin [Oxirane, 106-89-8 20,000 b
(chloromethyl)-].
Ethylenediamine [1,2- 107-15-3 20,000 b
Ethanediamine].
Ethyleneimine [Aziridine]...... 151-56-4 10,000 b
Ethylene oxide [Oxirane]....... 75-21-8 10,000 a, b
Fluorine....................... 7782-41-4 1,000 b
Formaldehyde (solution)........ 50-00-0 15,000 b
Furan.......................... 110-00-9 5,000 b
Hydrazine...................... 302-01-2 15,000 b
Hydrochloric acid (conc 37% or 7647-01-0 15,000 d
greater).
Hydrocyanic acid............... 74-90-8 2,500 a, b
[[Page 59]]
Hydrogen chloride (anhydrous) 7647-01-0 5,000 a
[Hydrochloric acid].
Hydrogen fluoride/Hydrofluoric 7664-39-3 1,000 a, b
acid (conc 50% or greater)
[Hydrofluoric acid].
Hydrogen selenide.............. 7783-07-5 500 b
Hydrogen sulfide............... 7783-06-4 10,000 a, b
Iron, pentacarbonyl- [Iron 13463-40-6 2,500 b
carbonyl (Fe(CO)5), (TB-5-11)-
].
Isobutyronitrile 78-82-0 20,000 b
[Propanenitrile, 2-methyl-].
Isopropyl chloroformate 108-23-6 15,000 b
[Carbonochloridic acid, 1-
methylethyl ester].
Methacrylonitrile [2- 126-98-7 10,000 b
Propenenitrile, 2-methyl-].
Methyl chloride [Methane, 74-87-3 10,000 a
chloro-].
Methyl chloroformate 79-22-1 5,000 b
[Carbonochloridic acid,
methylester].
Methyl hydrazine [Hydrazine, 60-34-4 15,000 b
methyl-].
Methyl isocyanate [Methane, 624-83-9 10,000 a, b
isocyanato-].
Methyl mercaptan [Methanethiol] 74-93-1 10,000 b
Methyl thiocyanate [Thiocyanic 556-64-9 20,000 b
acid, methyl ester].
Methyltrichlorosilane [Silane, 75-79-6 5,000 b
trichloromethyl-].
Nickel carbonyl................ 13463-39-3 1,000 b
Nitric acid (conc 80% or 7697-37-2 15,000 b
greater).
Nitric oxide [Nitrogen oxide 10102-43-9 10,000 b
(NO)].
Oleum (Fuming Sulfuric acid) 8014-95-7 10,000 e
[Sulfuric acid, mixture with
sulfur trioxide] \1\.
Peracetic acid [Ethaneperoxoic 79-21-0 10,000 b
acid].
Perchloromethylmercaptan 594-42-3 10,000 b
[Methanesulfenyl chloride,
trichloro-].
Phosgene [Carbonic dichloride]. 75-44-5 500 a, b
Phosphine...................... 7803-51-2 5,000 b
Phosphorus oxychloride 10025-87-3 5,000 b
[Phosphoryl chloride].
Phosphorus trichloride 7719-12-2 15,000 b
[Phosphorous trichloride].
Piperidine..................... 110-89-4 15,000 b
Propionitrile [Propanenitrile]. 107-12-0 10,000 b
Propyl chloroformate 109-61-5 15,000 b
[Carbonochloridic acid,
propylester].
Propyleneimine [Aziridine, 2- 75-55-8 10,000 b
methyl-].
Propylene oxide [Oxirane, 75-56-9 10,000 b
methyl-].
Sulfur dioxide (anhydrous)..... 7446-09-5 5,000 a, b
Sulfur tetrafluoride [Sulfur 7783-60-0 2,500 b
fluoride (SF4), (T-4)-].
Sulfur trioxide................ 7446-11-9 10,000 a, b
Tetramethyllead [Plumbane, 75-74-1 10,000 b
tetramethyl-].
Tetranitromethane [Methane, 509-14-8 10,000 b
tetranitro-].
Titanium tetrachloride 7550-45-0 2,500 b
[Titanium chloride (TiCl4) (T-
4)-].
Toluene 2,4-diisocyanate 584-84-9 10,000 a
[Benzene, 2,4-diisocyanato-1-
methyl-] \1\.
[[Page 60]]
Toluene 2,6-diisocyanate 91-08-7 10,000 a
[Benzene, 1,3-diisocyanato-2-
methyl-] \1\.
Toluene diisocyanate 26471-62-5 10,000 a
(unspecified isomer) [Benzene,
1,3-diisocyanatomethyl-] \1\.
Trimethylchlorosilane [Silane, 75-77-4 10,000 b
chlorotrimethyl-].
Vinyl acetate monomer [Acetic 108-05-4 15,000 b
acid ethenyl ester].
------------------------------------------------------------------------
\1\ The mixture exemption in Sec. 68.115(b)(1) does not apply to the
substance.
Note: Basis for Listing:
a Mandated for listing by Congress.
b On EHS list, vapor pressure 10 mmHg or greater.
c Toxic gas.
d Toxicity of hydrogen chloride, potential to release hydrogen
chloride, and history of accidents.
e Toxicity of sulfur trioxide and sulfuric acid, potential to release
sulfur trioxide, and history of accidents.
Table 2 to Sec. 68.130.--List of Regulated Toxic Substances and
Threshold Quantities for Accidental Release Prevention
[CAS Number Order--77 Substances]
------------------------------------------------------------------------
Threshold
CAS No. Chemical name quantity Basis for
(lbs) listing
------------------------------------------------------------------------
50-00-0................ Formaldehyde 15,000 b
(solution).
57-14-7................ 1,1-Dimethylhydrazine 15,000 b
[Hydrazine, 1,1-
dimethyl-].
60-34-4................ Methyl hydrazine 15,000 b
[Hydrazine, methyl-].
67-66-3................ Chloroform [Methane, 20,000 b
trichloro-].
74-87-3................ Methyl chloride 10,000 a
[Methane, chloro-].
74-90-8................ Hydrocyanic acid...... 2,500 a, b
74-93-1................ Methyl mercaptan 10,000 b
[Methanethiol].
75-15-0................ Carbon disulfide...... 20,000 b
75-21-8................ Ethylene oxide 10,000 a, b
[Oxirane].
75-44-5................ Phosgene [Carbonic 500 a, b
dichloride].
75-55-8................ Propyleneimine 10,000 b
[Aziridine, 2-methyl-
].
75-56-9................ Propylene oxide 10,000 b
[Oxirane, methyl-].
75-74-1................ Tetramethyllead 10,000 b
[Plumbane,
tetramethyl-].
75-77-4................ Trimethylchlorosilane 10,000 b
[Silane,
chlorotrimethyl-].
75-78-5................ Dimethyldichlorosilane 5,000 b
[Silane,
dichlorodimethyl-].
75-79-6................ Methyltrichlorosilane 5,000 b
[Silane,
trichloromethyl-].
78-82-0................ Isobutyronitrile 20,000 b
[Propanenitrile, 2-
methyl-].
79-21-0................ Peracetic acid 10,000 b
[Ethaneperoxoic acid].
79-22-1................ Methyl chloroformate 5,000 b
[Carbonochloridic
acid, methylester].
91-08-7................ Toluene 2,6- 10,000 a
diisocyanate
[Benzene, 1,3-
diisocyanato-2-methyl-
]\1\.
106-89-8............... Epichlorohydrin 20,000 b
[Oxirane,
(chloromethyl)-].
107-02-8............... Acrolein [2-Propenal]. 5,000 b
107-11-9............... Allylamine [2-Propen-1- 10,000 b
amine].
107-12-0............... Propionitrile 10,000 b
[Propanenitrile].
107-13-1............... Acrylonitrile [2- 20,000 b
Propenenitrile].
107-15-3............... Ethylenediamine [1,2- 20,000 b
Ethanediamine].
107-18-6............... Allyl alcohol [2- 15,000 b
Propen-1-ol].
107-30-2............... Chloromethyl methyl 5,000 b
ether [Methane,
chloromethoxy-].
108-05-4............... Vinyl acetate monomer 15,000 b
[Acetic acid ethenyl
ester].
108-23-6............... Isopropyl 15,000 b
chloroformate
[Carbonochloridic
acid, 1-methylethyl
ester].
108-91-8............... Cyclohexylamine 15,000 b
[Cyclohexanamine].
109-61-5............... Propyl chloroformate 15,000 b
[Carbonochloridic
acid, propylester].
110-00-9............... Furan................. 5,000 b
110-89-4............... Piperidine............ 15,000 b
123-73-9............... Crotonaldehyde, (E)- 20,000 b
[2-Butenal, (E)-].
126-98-7............... Methacrylonitrile [2- 10,000 b
Propenenitrile, 2-
methyl-].
151-56-4............... Ethyleneimine 10,000 b
[Aziridine].
302-01-2............... Hydrazine............. 15,000 b
353-42-4............... Boron trifluoride 15,000 b
compound with methyl
ether (1:1) [Boron,
trifluoro[oxybis[meth
ane]]-, T-4-.
[[Page 61]]
506-77-4............... Cyanogen chloride..... 10,000 c
509-14-8............... Tetranitromethane 10,000 b
[Methane, tetranitro-
].
542-88-1............... Chloromethyl ether 1,000 b
[Methane,
oxybis[chloro-].
556-64-9............... Methyl thiocyanate 20,000 b
[Thiocyanic acid,
methyl ester].
584-84-9............... Toluene 2,4- 10,000 a
diisocyanate
[Benzene, 2,4-
diisocyanato-1-methyl-
]\1\.
594-42-3............... Perchloromethylmercapt 10,000 b
an [Methanesulfenyl
chloride, trichloro-].
624-83-9............... Methyl isocyanate 10,000 a, b
[Methane, isocyanato-
].
814-68-6............... Acrylyl chloride [2- 5,000 b
Propenoyl chloride].
4170-30-3.............. Crotonaldehyde [2- 20,000 b
Butenal].
7446-09-5.............. Sulfur dioxide 5,000 a, b
(anhydrous).
7446-11-9.............. Sulfur trioxide....... 10,000 a, b
7550-45-0.............. Titanium tetrachloride 2,500 b
[Titanium chloride
(TiCl4) (T-4)-].
7637-07-2.............. Boron trifluoride 5,000 b
[Borane, trifluoro-].
7647-01-0.............. Hydrochloric acid 15,000 d
(conc 37% or greater).
7647-01-0.............. Hydrogen chloride 5,000 a
(anhydrous)
[Hydrochloric acid].
7664-39-3.............. Hydrogen fluoride/ 1,000 a, b
Hydrofluoric acid
(conc 50% or greater)
[Hydrofluoric acid].
7664-41-7.............. Ammonia (anhydrous)... 10,000 a, b
7664-41-7.............. Ammonia (conc 20% or 20,000 a, b
greater).
7697-37-2.............. Nitric acid (conc 80% 15,000 b
or greater).
7719-12-2.............. Phosphorus trichloride 15,000 b
[Phosphorous
trichloride].
7726-95-6.............. Bromine............... 10,000 a, b
7782-41-4.............. Fluorine.............. 1,000 b
7782-50-5.............. Chlorine.............. 2,500 a, b
7783-06-4.............. Hydrogen sulfide...... 10,000 a, b
7783-07-5.............. Hydrogen selenide..... 500 b
7783-60-0.............. Sulfur tetrafluoride 2,500 b
[Sulfur fluoride
(SF4), (T-4)-].
7784-34-1.............. Arsenous trichloride.. 15,000 b
7784-42-1.............. Arsine................ 1,000 b
7803-51-2.............. Phosphine............. 5,000 b
8014-95-7.............. Oleum (Fuming Sulfuric 10,000 e
acid) [Sulfuric acid,
mixture with sulfur
trioxide]\1\.
10025-87-3............. Phosphorus oxychloride 5,000 b
[Phosphoryl chloride].
10049-04-4............. Chlorine dioxide 1,000 c
[Chlorine oxide
(ClO2)].
10102-43-9............. Nitric oxide [Nitrogen 10,000 b
oxide (NO)].
10294-34-5............. Boron trichloride 5,000 b
[Borane, trichloro-].
13463-39-3............. Nickel carbonyl....... 1,000 b
13463-40-6............. Iron, pentacarbonyl- 2,500 b
[Iron carbonyl
(Fe(CO)5), (TB-5-11)-
].
19287-45-7............. Diborane.............. 2,500 b
26471-62-5............. Toluene diisocyanate 10,000 a
(unspecified isomer)
[Benzene, 1,3-
diisocyanatomethyl-
1]\1\.
------------------------------------------------------------------------
\1\ The mixture exemption in Sec. 68.115(b)(1) does not apply to the
substance.
Note: Basis for Listing:
a Mandated for listing by Congress.
b On EHS list, vapor pressure 10 mmHg or greater.
c Toxic gas.
d Toxicity of hydrogen chloride, potential to release hydrogen
chloride, and history of accidents.
e Toxicity of sulfur trioxide and sulfuric acid, potential to release
sulfur trioxide, and history of accidents.
Table 3 to Sec. 68.130.--List of Regulated Flammable Substances and
Threshold Quantities for Accidental Release Prevention
[Alphabetical Order--63 Substances]
------------------------------------------------------------------------
Threshold
Chemical name CAS No. quantity Basis for
(lbs) listing
------------------------------------------------------------------------
Acetaldehyde................... 75-07-0 10,000 g
Acetylene [Ethyne]............. 74-86-2 10,000 f
Bromotrifluorethylene [Ethene, 598-73-2 10,000 f
bromotrifluoro-].
1,3-Butadiene.................. 106-99-0 10,000 f
Butane......................... 106-97-8 10,000 f
1-Butene....................... 106-98-9 10,000 f
2-Butene....................... 107-01-7 10,000 f
Butene......................... 25167-67-3 10,000 f
2-Butene-cis................... 590-18-1 10,000 f
2-Butene-trans [2-Butene, (E)]. 624-64-6 10,000 f
Carbon oxysulfide [Carbon oxide 463-58-1 10,000 f
sulfide (COS)].
Chlorine monoxide [Chlorine 7791-21-1 10,000 f
oxide].
2-Chloropropylene [1-Propene, 2- 557-98-2 10,000 g
chloro-].
[[Page 62]]
1-Chloropropylene [1-Propene, 1- 590-21-6 10,000 g
chloro-].
Cyanogen [Ethanedinitrile]..... 460-19-5 10,000 f
Cyclopropane................... 75-19-4 10,000 f
Dichlorosilane [Silane, 4109-96-0 10,000 f
dichloro-].
Difluoroethane [Ethane, 1,1- 75-37-6 10,000 f
difluoro-].
Dimethylamine [Methanamine, N- 124-40-3 10,000 f
methyl-].
2,2-Dimethylpropane [Propane, 463-82-1 10,000 f
2,2-dimethyl-].
Ethane......................... 74-84-0 10,000 f
Ethyl acetylene [1-Butyne]..... 107-00-6 10,000 f
Ethylamine [Ethanamine]........ 75-04-7 10,000 f
Ethyl chloride [Ethane, chloro- 75-00-3 10,000 f
].
Ethylene [Ethene].............. 74-85-1 10,000 f
Ethyl ether [Ethane, 1,1'- 60-29-7 10,000 g
oxybis-].
Ethyl mercaptan [Ethanethiol].. 75-08-1 10,000 g
Ethyl nitrite [Nitrous acid, 109-95-5 10,000 f
ethyl ester].
Hydrogen....................... 1333-74-0 10,000 f
Isobutane [Propane, 2-methyl].. 75-28-5 10,000 f
Isopentane [Butane, 2-methyl-]. 78-78-4 10,000 g
Isoprene [1,3-Butadinene, 2- 78-79-5 10,000 g
methyl-].
Isopropylamine [2-Propanamine]. 75-31-0 10,000 g
Isopropyl chloride [Propane, 2- 75-29-6 10,000 g
chloro-].
Methane........................ 74-82-8 10,000 f
Methylamine [Methanamine]...... 74-89-5 10,000 f
3-Methyl-1-butene.............. 563-45-1 10,000 f
2-Methyl-1-butene.............. 563-46-2 10,000 g
Methyl ether [Methane, oxybis-] 115-10-6 10,000 f
Methyl formate [Formic acid, 107-31-3 10,000 g
methyl ester].
2-Methylpropene [1-Propene, 2- 115-11-7 10,000 f
methyl-].
1,3-Pentadinene................ 504-60-9 10,000 f
Pentane........................ 109-66-0 10,000 g
1-Pentene...................... 109-67-1 10,000 g
2-Pentene, (E)-................ 646-04-8 10,000 g
2-Pentene, (Z)-................ 627-20-3 10,000 g
Propadiene [1,2-Propadiene].... 463-49-0 10,000 f
Propane........................ 74-98-6 10,000 f
Propylene [1-Propene].......... 115-07-1 10,000 f
Propyne [1-Propyne]............ 74-99-7 10,000 f
Silane......................... 7803-62-5 10,000 f
Tetrafluoroethylene [Ethene, 116-14-3 10,000 f
tetrafluoro-].
Tetramethylsilane [Silane, 75-76-3 10,000 g
tetramethyl-].
Trichlorosilane [Silane, 10025-78-2 10,000 g
trichloro-].
Trifluorochloroethylene 79-38-9 10,000 f
[Ethene, chlorotrifluoro-].
Trimethylamine [Methanamine, 75-50-3 10,000 f
N,N-dimethyl-].
Vinyl acetylene [1-Buten-3-yne] 689-97-4 10,000 f
Vinyl chloride [Ethene, chloro- 75-01-4 10,000 a, f
].
Vinyl ethyl ether [Ethene, 109-92-2 10,000 g
ethoxy-].
Vinyl fluoride [Ethene, fluoro- 75-02-5 10,000 f
].
Vinylidene chloride [Ethene, 75-35-4 10,000 g
1,1-dichloro-].
Vinylidene fluoride [Ethene, 75-38-7 10,000 f
1,1-difluoro-].
Vinyl methyl ether [Ethene, 107-25-5 10,000 f
methoxy-].
------------------------------------------------------------------------
Note: Basis for Listing:
a Mandated for listing by Congress.
f Flammable gas.
g Volatile flammable liquid.
Table 4 to Sec. 68.130.--List of Regulated Flammable Substances and Threshold Quantities for Accidental Release
Prevention
[CAS Number Order--63 Substances]
----------------------------------------------------------------------------------------------------------------
Threshold
CAS No. Chemical name CAS No. quantity Basis for listing
(lbs)
----------------------------------------------------------------------------------------------------------------
60-29-7........................ Ethyl ether [Ethane, 1,1'- 60-29-7 10,000 g
oxybis-].
74-82-8........................ Methane....................... 74-82-8 10,000 f
74-84-0........................ Ethane........................ 74-84-0 10,000 f
74-85-1........................ Ethylene [Ethene]............. 74-85-1 10,000 f
[[Page 63]]
74-86-2........................ Acetylene [Ethyne]............ 74-86-2 10,000 f
74-89-5........................ Methylamine [Methanamine]..... 74-89-5 10,000 f
74-98-6........................ Propane....................... 74-98-6 10,000 f
74-99-7........................ Propyne [1-Propyne]........... 74-99-7 10,000 f
75-00-3........................ Ethyl chloride [Ethane, chloro- 75-00-3 10,000 f
].
75-01-4........................ Vinyl chloride [Ethene, chloro- 75-01-4 10,000 a, f
].
75-02-5........................ Vinyl fluoride [Ethene, fluoro- 75-02-5 10,000 f
].
75-04-7........................ Ethylamine [Ethanamine]....... 75-04-7 10,000 f
75-07-0........................ Acetaldehyde.................. 75-07-0 10,000 g
75-08-1........................ Ethyl mercaptan [Ethanethiol]. 75-08-1 10,000 g
75-19-4........................ Cyclopropane.................. 75-19-4 10,000 f
75-28-5........................ Isobutane [Propane, 2-methyl]. 75-28-5 10,000 f
75-29-6........................ Isopropyl chloride [Propane, 2- 75-29-6 10,000 g
chloro-].
75-31-0........................ Isopropylamine [2-Propanamine] 75-31-0 10,000 g
75-35-4........................ Vinylidene chloride [Ethene, 75-35-4 10,000 g
1,1-dichloro-].
75-37-6........................ Difluoroethane [Ethane, 1,1- 75-37-6 10,000 f
difluoro-].
75-38-7........................ Vinylidene fluoride [Ethene, 75-38-7 10,000 f
1,1-difluoro-].
75-50-3........................ Trimethylamine [Methanamine, 75-50-3 10,000 f
N, N-dimethyl-].
75-76-3........................ Tetramethylsilane [Silane, 75-76-3 10,000 g
tetramethyl-].
78-78-4........................ Isopentane [Butane, 2-methyl-] 78-78-4 10,000 g
78-79-5........................ Isoprene [1,3,-Butadiene, 2- 78-79-5 10,000 g
methyl-].
79-38-9........................ Trifluorochloroethylene 79-38-9 10,000 f
[Ethene, chlorotrifluoro-].
106-97-8....................... Butane........................ 106-97-8 10,000 f
106-98-9....................... 1-Butene...................... 106-98-9 10,000 f
196-99-0....................... 1,3-Butadiene................. 106-99-0 10,000 f
107-00-6....................... Ethyl acetylene [1-Butyne].... 107-00-6 10,000 f
107-01-7....................... 2-Butene...................... 107-01-7 10,000 f
107-25-5....................... Vinyl methyl ether [Ethene, 107-25-5 10,000 f
methoxy-].
107-31-3....................... Methyl formate [Formic acid, 107-31-3 10,000 g
methyl ester].
109-66-0....................... Pentane....................... 109-66-0 10,000 g
109-67-1....................... 1-Pentene..................... 109-67-1 10,000 g
109-92-2....................... Vinyl ethyl ether [Ethene, 109-92-2 10,000 g
ethoxy-].
109-95-5....................... Ethyl nitrite [Nitrous acid, 109-95-5 10,000 f
ethyl ester].
115-07-1....................... Propylene [1-Propene]......... 115-07-1 10,000 f
115-10-6....................... Methyl ether [Methane, oxybis- 115-10-6 10,000 f
].
115-11-7....................... 2-Methylpropene [1-Propene, 2- 115-11-7 10,000 f
methyl-].
116-14-3....................... Tetrafluoroethylene [Ethene, 116-14-3 10,000 f
tetrafluoro-].
124-40-3....................... Dimethylamine [Methanamine, N- 124-40-3 10,000 f
methyl-].
460-19-5....................... Cyanogen [Ethanedinitrile].... 460-19-5 10,000 f
463-49-0....................... Propadiene [1,2-Propadiene]... 463-49-0 10,000 f
463-58-1....................... Carbon oxysulfide [Carbon 463-58-1 10,000 f
oxide sulfide (COS)].
463-82-1....................... 2,2-Dimethylpropane [Propane, 463-82-1 10,000 f
2,2-dimethyl-].
504-60-9....................... 1,3-Pentadiene................ 504-60-9 10,000 f
557-98-2....................... 2-Chloropropylene [1-Propene, 557-98-2 10,000 g
2-chloro-].
563-45-1....................... 3-Methyl-1-butene............. 563-45-1 10,000 f
563-46-2....................... 2-Methyl-1-butene............. 563-46-2 10,000 g
590-18-1....................... 2-Butene-cis.................. 590-18-1 10,000 f
590-21-6....................... 1-Chloropropylene [1-Propene, 590-21-6 10,000 g
1-chloro-].
598-73-2....................... Bromotrifluorethylene [Ethene, 598-73-2 10,000 f
bromotrifluoro-].
624-64-6....................... 2-Butene-trans [2-Butene, (E)] 624-64-6 10,000 f
627-20-3....................... 2-Pentene, (Z)-............... 627-20-3 10,000 g
646-04-8....................... 2-Pentene, (E)-............... 646-04-8 10,000 g
689-97-4....................... Vinyl acetylene [1-Buten-3- 689-97-4 10,000 f
yne].
1333-74-0...................... Hydrogen...................... 1333-74-0 10,000 f
4109-96-0...................... Dichlorosilane [Silane, 4109-96-0 10,000 f
dichloro-].
7791-21-1...................... Chlorine monoxide [Chlorine 7791-21-1 10,000 f
oxide].
7803-62-5...................... Silane........................ 7803-62-5 10,000 f
10025-78-2..................... Trichlorosilane 10025-78-2 10,000 g
[Silane,trichloro-].
25167-67-3..................... Butene........................ 25167-67-3 10,000 f
----------------------------------------------------------------------------------------------------------------
Note: Basis for Listing: a Mandated for listing by Congress. f Flammable gas. g Volatile flammable
liquid.
[59 FR 4493, Jan. 31, 1994. Redesignated at 61 FR 31717, June 20, 1996,
as amended at 62 FR 45132, Aug. 25, 1997; 63 FR 645, Jan. 6, 1998]
[[Page 64]]
Subpart G--Risk Management Plan
Source: 61 FR 31726, June 20, 1996, unless otherwise noted.
Sec. 68.150 Submission.
(a) The owner or operator shall submit a single RMP that includes
the information required by Secs. 68.155 through 68.185 for all covered
processes. The RMP shall be submitted in a method and format to a
central point as specified by EPA prior to June 21, 1999.
(b) The owner or operator shall submit the first RMP no later than
the latest of the following dates:
(1) June 21, 1999;
(2) Three years after the date on which a regulated substance is
first listed under Sec. 68.130; or
(3) The date on which a regulated substance is first present above a
threshold quantity in a process.
(c) Subsequent submissions of RMPs shall be in accordance with
Sec. 68.190.
(d) Notwithstanding the provisions of Secs. 68.155 to 68.190, the
RMP shall exclude classified information. Subject to appropriate
procedures to protect such information from public disclosure,
classified data or information excluded from the RMP may be made
available in a classified annex to the RMP for review by Federal and
state representatives who have received the appropriate security
clearances.
(e) Procedures for asserting that information submitted in the RMP
is entitled to protection as confidential business information are set
forth in Secs. 68.151 and 68.152.
[61 FR 31726, June 20, 1996, as amended at 64 FR 979, Jan. 6, 1999]
Sec. 68.151 Assertion of claims of confidential business information.
(a) Except as provided in paragraph (b) of this section, an owner or
operator of a stationary source required to report or otherwise provide
information under this part may make a claim of confidential business
information for any such information that meets the criteria set forth
in 40 CFR 2.301.
(b) Notwithstanding the provisions of 40 CFR part 2, an owner or
operator of a stationary source subject to this part may not claim as
confidential business information the following information:
(1) Registration data required by Sec. 68.160(b)(1) through (b)(6)
and (b)(8), (b)(10) through (b)(13) and NAICS code and Program level of
the process set forth in Sec. 68.160(b)(7);
(2) Offsite consequence analysis data required by Sec. 68.165(b)(4),
(b)(9), (b)(10), (b)(11), and (b)(12).
(3) Accident history data required by Sec. 68.168;
(4) Prevention program data required by Sec. 68.170(b), (d), (e)(1),
(f) through (k);
(5) Prevention program data required by Sec. 68.175(b), (d), (e)(1),
(f) through (p); and
(6) Emergency response program data required by Sec. 68.180.
(c) Notwithstanding the procedures specified in 40 CFR part 2, an
owner or operator asserting a claim of CBI with respect to information
contained in its RMP, shall submit to EPA at the time it submits the RMP
the following:
(1) The information claimed confidential, provided in a format to be
specified by EPA;
(2) A sanitized (redacted) copy of the RMP, with the notation
``CBI'' substituted for the information claimed confidential, except
that a generic category or class name shall be substituted for any
chemical name or identity claimed confidential; and
(3) The document or documents substantiating each claim of
confidential business information, as described in Sec. 68.152.
[64 FR 979, Jan. 6, 1999]
Sec. 68.152 Substantiating claims of confidential business information.
(a) An owner or operator claiming that information is confidential
business information must substantiate that claim by providing
documentation that demonstrates that the claim meets the substantive
criteria set forth in 40 CFR 2.301.
(b) Information that is submitted as part of the substantiation may
be claimed confidential by marking it as confidential business
information. Information not so marked will be treated as public and may
be disclosed without notice to the submitter. If information that is
submitted as part of the substantiation is claimed confidential,
[[Page 65]]
the owner or operator must provide a sanitized and unsanitized version
of the substantiation.
(c) The owner, operator, or senior official with management
responsibility of the stationary source shall sign a certification that
the signer has personally examined the information submitted and that
based on inquiry of the persons who compiled the information, the
information is true, accurate, and complete, and that those portions of
the substantiation claimed as confidential business information would,
if disclosed, reveal trade secrets or other confidential business
information.
[64 FR 980, Jan. 6, 1999]
Sec. 68.155 Executive summary.
The owner or operator shall provide in the RMP an executive summary
that includes a brief description of the following elements:
(a) The accidental release prevention and emergency response
policies at the stationary source;
(b) The stationary source and regulated substances handled;
(c) The worst-case release scenario(s) and the alternative release
scenario(s), including administrative controls and mitigation measures
to limit the distances for each reported scenario;
(d) The general accidental release prevention program and chemical-
specific prevention steps;
(e) The five-year accident history;
(f) The emergency response program; and
(g) Planned changes to improve safety.
Sec. 68.160 Registration.
(a) The owner or operator shall complete a single registration form
and include it in the RMP. The form shall cover all regulated substances
handled in covered processes.
(b) The registration shall include the following data:
(1) Stationary source name, street, city, county, state, zip code,
latitude and longitude, method for obtaining latitude and longitude, and
description of location that latitude and longitude represent;
(2) The stationary source Dun and Bradstreet number;
(3) Name and Dun and Bradstreet number of the corporate parent
company;
(4) The name, telephone number, and mailing address of the owner or
operator;
(5) The name and title of the person or position with overall
responsibility for RMP elements and implementation;
(6) The name, title, telephone number, and 24-hour telephone number
of the emergency contact;
(7) For each covered process, the name and CAS number of each
regulated substance held above the threshold quantity in the process,
the maximum quantity of each regulated substance or mixture in the
process (in pounds) to two significant digits, the five- or six-digit
NAICS code that most closely corresponds to the process, and the Program
level of the process;
(8) The stationary source EPA identifier;
(9) The number of full-time employees at the stationary source;
(10) Whether the stationary source is subject to 29 CFR 1910.119;
(11) Whether the stationary source is subject to 40 CFR part 355;
(12) If the stationary source has a CAA Title V operating permit,
the permit number; and
(13) The date of the last safety inspection of the stationary source
by a Federal, state, or local government agency and the identity of the
inspecting entity.
(14) Source or Parent Company E-Mail Address (Optional);
(15) Source Homepage address (Optional)
(16) Phone number at the source for public inquiries (Optional);
(17) Local Emergency Planning Committee (Optional);
(18) OSHA Voluntary Protection Program status (Optional);
[61 FR 31726, June 20, 1996, as amended at 64 FR 980, Jan. 6, 1999]
Sec. 68.165 Offsite consequence analysis.
(a) The owner or operator shall submit in the RMP information:
(1) One worst-case release scenario for each Program 1 process; and
(2) For Program 2 and 3 processes, one worst-case release scenario
to represent all regulated toxic substances
[[Page 66]]
held above the threshold quantity and one worst-case release scenario to
represent all regulated flammable substances held above the threshold
quantity. If additional worst-case scenarios for toxics or flammables
are required by Sec. 68.25(a)(2)(iii), the owner or operator shall
submit the same information on the additional scenario(s). The owner or
operator of Program 2 and 3 processes shall also submit information on
one alternative release scenario for each regulated toxic substance held
above the threshold quantity and one alternative release scenario to
represent all regulated flammable substances held above the threshold
quantity.
(b) The owner or operator shall submit the following data:
(1) Chemical name;
(2) Percentage weight of the chemical in a liquid mixture (toxics
only);
(3) Physical state (toxics only);
(4) Basis of results (give model name if used);
(5) Scenario (explosion, fire, toxic gas release, or liquid spill
and evaporation);
(6) Quantity released in pounds;
(7) Release rate;
(8) Release duration;
(9) Wind speed and atmospheric stability class (toxics only);
(10) Topography (toxics only);
(11) Distance to endpoint;
(12) Public and environmental receptors within the distance;
(13) Passive mitigation considered; and
(14) Active mitigation considered (alternative releases only);
[61 FR 31726, June 20, 1996, as amended at 64 FR 980, Jan. 6, 1999]
Sec. 68.168 Five-year accident history.
The owner or operator shall submit in the RMP the information
provided in Sec. 68.42(b) on each accident covered by Sec. 68.42(a).
Sec. 68.170 Prevention program/Program 2.
(a) For each Program 2 process, the owner or operator shall provide
in the RMP the information indicated in paragraphs (b) through (k) of
this section. If the same information applies to more than one covered
process, the owner or operator may provide the information only once,
but shall indicate to which processes the information applies.
(b) The five- or six-digit NAICS code that most closely corresponds
to the process.
(c) The name(s) of the chemical(s) covered.
(d) The date of the most recent review or revision of the safety
information and a list of Federal or state regulations or industry-
specific design codes and standards used to demonstrate compliance with
the safety information requirement.
(e) The date of completion of the most recent hazard review or
update.
(1) The expected date of completion of any changes resulting from
the hazard review;
(2) Major hazards identified;
(3) Process controls in use;
(4) Mitigation systems in use;
(5) Monitoring and detection systems in use; and
(6) Changes since the last hazard review.
(f) The date of the most recent review or revision of operating
procedures.
(g) The date of the most recent review or revision of training
programs;
(1) The type of training provided--classroom, classroom plus on the
job, on the job; and
(2) The type of competency testing used.
(h) The date of the most recent review or revision of maintenance
procedures and the date of the most recent equipment inspection or test
and the equipment inspected or tested.
(i) The date of the most recent compliance audit and the expected
date of completion of any changes resulting from the compliance audit.
(j) The date of the most recent incident investigation and the
expected date of completion of any changes resulting from the
investigation.
(k) The date of the most recent change that triggered a review or
revision of safety information, the hazard review, operating or
maintenance procedures, or training.
[61 FR 31726, June 20, 1996, as amended at 64 FR 980, Jan. 6, 1999]
[[Page 67]]
Sec. 68.175 Prevention program/Program 3.
(a) For each Program 3 process, the owner or operator shall provide
the information indicated in paragraphs (b) through (p) of this section.
If the same information applies to more than one covered process, the
owner or operator may provide the information only once, but shall
indicate to which processes the information applies.
(b) The five- or six-digit NAICS code that most closely corresponds
to the process.
(c) The name(s) of the substance(s) covered.
(d) The date on which the safety information was last reviewed or
revised.
(e) The date of completion of the most recent PHA or update and the
technique used.
(1) The expected date of completion of any changes resulting from
the PHA;
(2) Major hazards identified;
(3) Process controls in use;
(4) Mitigation systems in use;
(5) Monitoring and detection systems in use; and
(6) Changes since the last PHA.
(f) The date of the most recent review or revision of operating
procedures.
(g) The date of the most recent review or revision of training
programs;
(1) The type of training provided--classroom, classroom plus on the
job, on the job; and
(2) The type of competency testing used.
(h) The date of the most recent review or revision of maintenance
procedures and the date of the most recent equipment inspection or test
and the equipment inspected or tested.
(i) The date of the most recent change that triggered management of
change procedures and the date of the most recent review or revision of
management of change procedures.
(j) The date of the most recent pre-startup review.
(k) The date of the most recent compliance audit and the expected
date of completion of any changes resulting from the compliance audit;
(l) The date of the most recent incident investigation and the
expected date of completion of any changes resulting from the
investigation;
(m) The date of the most recent review or revision of employee
participation plans;
(n) The date of the most recent review or revision of hot work
permit procedures;
(o) The date of the most recent review or revision of contractor
safety procedures; and
(p) The date of the most recent evaluation of contractor safety
performance.
[61 FR 31726, June 20, 1996, as amended at 64 FR 980, Jan. 6, 1999]
Sec. 68.180 Emergency response program.
(a) The owner or operator shall provide in the RMP the following
information:
(1) Do you have a written emergency response plan?
(2) Does the plan include specific actions to be taken in response
to an accidental releases of a regulated substance?
(3) Does the plan include procedures for informing the public and
local agencies responsible for responding to accidental releases?
(4) Does the plan include information on emergency health care?
(5) The date of the most recent review or update of the emergency
response plan;
(6) The date of the most recent emergency response training for
employees.
(b) The owner or operator shall provide the name and telephone
number of the local agency with which emergency response activities and
the emergency response plan is coordinated.
(c) The owner or operator shall list other Federal or state
emergency plan requirements to which the stationary source is subject.
[61 FR 31726, June 20, 1996, as amended at 64 FR 980, Jan. 6, 1999]
Sec. 68.185 Certification.
(a) For Program 1 processes, the owner or operator shall submit in
the RMP the certification statement provided in Sec. 68.12(b)(4).
(b) For all other covered processes, the owner or operator shall
submit in the RMP a single certification that, to
[[Page 68]]
the best of the signer's knowledge, information, and belief formed after
reasonable inquiry, the information submitted is true, accurate, and
complete.
Sec. 68.190 Updates.
(a) The owner or operator shall review and update the RMP as
specified in paragraph (b) of this section and submit it in a method and
format to a central point specified by EPA prior to June 21, 1999.
(b) The owner or operator of a stationary source shall revise and
update the RMP submitted under Sec. 68.150 as follows:
(1) Within five years of its initial submission or most recent
update required by paragraphs (b)(2) through (b)(7) of this section,
whichever is later.
(2) No later than three years after a newly regulated substance is
first listed by EPA;
(3) No later than the date on which a new regulated substance is
first present in an already covered process above a threshold quantity;
(4) No later than the date on which a regulated substance is first
present above a threshold quantity in a new process;
(5) Within six months of a change that requires a revised PHA or
hazard review;
(6) Within six months of a change that requires a revised offsite
consequence analysis as provided in Sec. 68.36; and
(7) Within six months of a change that alters the Program level that
applied to any covered process.
(c) If a stationary source is no longer subject to this part, the
owner or operator shall submit a revised registration to EPA within six
months indicating that the stationary source is no longer covered.
Subpart H--Other Requirements
Source: 61 FR 31728, June 20, 1996, unless otherwise noted.
Sec. 68.200 Recordkeeping.
The owner or operator shall maintain records supporting the
implementation of this part for five years unless otherwise provided in
subpart D of this part.
Sec. 68.210 Availability of information to the public.
(a) The RMP required under subpart G of this part shall be available
to the public under 42 U.S.C. 7414(c).
(b) The disclosure of classified information by the Department of
Defense or other Federal agencies or contractors of such agencies shall
be controlled by applicable laws, regulations, or executive orders
concerning the release of classified information.
Sec. 68.215 Permit content and air permitting authority or designated agency requirements.
(a) These requirements apply to any stationary source subject to
this part 68 and parts 70 or 71 of this chapter. The 40 CFR part 70 or
part 71 permit for the stationary source shall contain:
(1) A statement listing this part as an applicable requirement;
(2) Conditions that require the source owner or operator to submit:
(i) A compliance schedule for meeting the requirements of this part
by the date provided in Sec. 68.10(a) or;
(ii) As part of the compliance certification submitted under 40 CFR
70.6(c)(5), a certification statement that the source is in compliance
with all requirements of this part, including the registration and
submission of the RMP.
(b) The owner or operator shall submit any additional relevant
information requested by the air permitting authority or designated
agency.
(c) For 40 CFR part 70 or part 71 permits issued prior to the
deadline for registering and submitting the RMP and which do not contain
permit conditions described in paragraph (a) of this section, the owner
or operator or air permitting authority shall initiate permit revision
or reopening according to the procedures of 40 CFR 70.7 or 71.7 to
incorporate the terms and conditions consistent with paragraph (a) of
this section.
(d) The state may delegate the authority to implement and enforce
the requirements of paragraph (e) of this section to a state or local
agency or agencies other than the air permitting authority. An up-to-
date copy of any delegation instrument shall be maintained by the air
permitting authority.
[[Page 69]]
The state may enter a written agreement with the Administrator under
which EPA will implement and enforce the requirements of paragraph (e)
of this section.
(e) The air permitting authority or the agency designated by
delegation or agreement under paragraph (d) of this section shall, at a
minimum:
(1) Verify that the source owner or operator has registered and
submitted an RMP or a revised plan when required by this part;
(2) Verify that the source owner or operator has submitted a source
certification or in its absence has submitted a compliance schedule
consistent with paragraph (a)(2) of this section;
(3) For some or all of the sources subject to this section, use one
or more mechanisms such as, but not limited to, a completeness check,
source audits, record reviews, or facility inspections to ensure that
permitted sources are in compliance with the requirements of this part;
and
(4) Initiate enforcement action based on paragraphs (e)(1) and
(e)(2) of this section as appropriate.
Sec. 68.220 Audits.
(a) In addition to inspections for the purpose of regulatory
development and enforcement of the Act, the implementing agency shall
periodically audit RMPs submitted under subpart G of this part to review
the adequacy of such RMPs and require revisions of RMPs when necessary
to ensure compliance with subpart G of this part.
(b) The implementing agency shall select stationary sources for
audits based on any of the following criteria:
(1) Accident history of the stationary source;
(2) Accident history of other stationary sources in the same
industry;
(3) Quantity of regulated substances present at the stationary
source;
(4) Location of the stationary source and its proximity to the
public and environmental receptors;
(5) The presence of specific regulated substances;
(6) The hazards identified in the RMP; and
(7) A plan providing for neutral, random oversight.
(c) Exemption from audits. A stationary source with a Star or Merit
ranking under OSHA's voluntary protection program shall be exempt from
audits under paragraph (b)(2) and (b)(7) of this section.
(d) The implementing agency shall have access to the stationary
source, supporting documentation, and any area where an accidental
release could occur.
(e) Based on the audit, the implementing agency may issue the owner
or operator of a stationary source a written preliminary determination
of necessary revisions to the stationary source's RMP to ensure that the
RMP meets the criteria of subpart G of this part. The preliminary
determination shall include an explanation for the basis for the
revisions, reflecting industry standards and guidelines (such as AIChE/
CCPS guidelines and ASME and API standards) to the extent that such
standards and guidelines are applicable, and shall include a timetable
for their implementation.
(f) Written response to a preliminary determination. (1) The owner
or operator shall respond in writing to a preliminary determination made
in accordance with paragraph (e) of this section. The response shall
state the owner or operator will implement the revisions contained in
the preliminary determination in accordance with the timetable included
in the preliminary determination or shall state that the owner or
operator rejects the revisions in whole or in part. For each rejected
revision, the owner or operator shall explain the basis for rejecting
such revision. Such explanation may include substitute revisions.
(2) The written response under paragraph (f)(1) of this section
shall be received by the implementing agency within 90 days of the issue
of the preliminary determination or a shorter period of time as the
implementing agency specifies in the preliminary determination as
necessary to protect public health and the environment. Prior to the
written response being due and upon written request from the owner or
operator, the implementing agency may provide in writing additional time
for the response to be received.
[[Page 70]]
(g) After providing the owner or operator an opportunity to respond
under paragraph (f) of this section, the implementing agency may issue
the owner or operator a written final determination of necessary
revisions to the stationary source's RMP. The final determination may
adopt or modify the revisions contained in the preliminary determination
under paragraph (e) of this section or may adopt or modify the
substitute revisions provided in the response under paragraph (f) of
this section. A final determination that adopts a revision rejected by
the owner or operator shall include an explanation of the basis for the
revision. A final determination that fails to adopt a substitute
revision provided under paragraph (f) of this section shall include an
explanation of the basis for finding such substitute revision
unreasonable.
(h) Thirty days after completion of the actions detailed in the
implementation schedule set in the final determination under paragraph
(g) of this section, the owner or operator shall be in violation of
subpart G of this part and this section unless the owner or operator
revises the RMP prepared under subpart G of this part as required by the
final determination, and submits the revised RMP as required under
Sec. 68.150.
(i) The public shall have access to the preliminary determinations,
responses, and final determinations under this section in a manner
consistent with Sec. 68.210.
(j) Nothing in this section shall preclude, limit, or interfere in
any way with the authority of EPA or the state to exercise its
enforcement, investigatory, and information gathering authorities
concerning this part under the Act.
[[Page 71]]
Pt. 68, App. A
Appendix A to Part 68--Table of Toxic Endpoints
[As defined in Sec. 68.22 of this part]
----------------------------------------------------------------------------------------------------------------
Toxic
CAS No. Chemical name endpoint (mg/
L)
----------------------------------------------------------------------------------------------------------------
107-02-8..................................... Acrolein [2-Propenal].............................. 0.0011
107-13-1..................................... Acrylonitrile [2-Propenenitrile]................... 0.076
814-68-6..................................... Acrylyl chloride [2-Propenoyl chloride]............ 0.00090
107-18-6..................................... Allyl alcohol [2-Propen-1-ol]...................... 0.036
107-11-9..................................... Allylamine [2-Propen-1-amine]...................... 0.0032
7664-41-7.................................... Ammonia (anhydrous)................................ 0.14
7664-41-7.................................... Ammonia (conc 20% or greater)...................... 0.14
7784-34-1.................................... Arsenous trichloride............................... 0.010
7784-42-1.................................... Arsine............................................. 0.0019
10294-34-5................................... Boron trichloride [Borane, trichloro-]............. 0.010
7637-07-2.................................... Boron trifluoride [Borane, trifluoro-]............. 0.028
353-42-4..................................... Boron trifluoride compound with methyl ether (1:1) 0.023
[Boron, trifluoro[oxybis[methane]]-, T-4.
7726-95-6.................................... Bromine............................................ 0.0065
75-15-0...................................... Carbon disulfide................................... 0.16
7782-50-5.................................... Chlorine........................................... 0.0087
10049-04-4................................... Chlorine dioxide [Chlorine oxide (ClO2)]........... 0.0028
67-66-3...................................... Chloroform [Methane, trichloro-]................... 0.49
542-88-1..................................... Chloromethyl ether [Methane, oxybis[chloro-]....... 0.00025
107-30-2..................................... Chloromethyl methyl ether [Methane, chloromethoxy-] 0.0018
4170-30-3.................................... Crotonaldehyde [2-Butenal]......................... 0.029
123-73-9..................................... Crotonaldehyde, (E)-, [2-Butenal, (E)-]............ 0.029
506-77-4..................................... Cyanogen chloride.................................. 0.030
108-91-8..................................... Cyclohexylamine [Cyclohexanamine].................. 0.16
19287-45-7................................... Diborane........................................... 0.0011
75-78-5...................................... Dimethyldichlorosilane [Silane, dichlorodimethyl-]. 0.026
57-14-7...................................... 1,1-Dimethylhydrazine [Hydrazine, 1,1-dimethyl-]... 0.012
106-89-8..................................... Epichlorohydrin [Oxirane, (chloromethyl)-]......... 0.076
107-15-3..................................... Ethylenediamine [1,2-Ethanediamine]................ 0.49
151-56-4..................................... Ethyleneimine [Aziridine].......................... 0.018
75-21-8...................................... Ethylene oxide [Oxirane]........................... 0.090
7782-41-4.................................... Fluorine........................................... 0.0039
50-00-0...................................... Formaldehyde (solution)............................ 0.012
110-00-9..................................... Furan.............................................. 0.0012
302-01-2..................................... Hydrazine.......................................... 0.011
7647-01-0.................................... Hydrochloric acid (conc 37% or greater)............ 0.030
74-90-8...................................... Hydrocyanic acid................................... 0.011
7647-01-0.................................... Hydrogen chloride (anhydrous) [Hydrochloric acid].. 0.030
7664-39-3.................................... Hydrogen fluoride/Hydrofluoric acid (conc 50% or 0.016
greater) [Hydrofluoric acid].
7783-07-5.................................... Hydrogen selenide.................................. 0.00066
7783-06-4.................................... Hydrogen sulfide................................... 0.042
13463-40-6................................... Iron, pentacarbonyl- [Iron carbonyl (Fe(CO)5), (TB- 0.00044
5-11)-].
78-82-0...................................... Isobutyronitrile [Propanenitrile, 2-methyl-]....... 0.14
108-23-6..................................... Isopropyl chloroformate [Carbonochloride acid, 1- 0.10
methylethyl ester].
126-98-7..................................... Methacrylonitrile [2-Propenenitrile, 2-methyl-].... 0.0027
[[Page 72]]
74-87-3...................................... Methyl chloride [Methane, chloro-]................. 0.82
79-22-1...................................... Methyl chloroformate [Carbonochloridic acid, 0.0019
methylester].
60-34-4...................................... Methyl hydrazine [Hydrazine, methyl-].............. 0.0094
624-83-9..................................... Methyl isocyanate [Methane, isocyanato-]........... 0.0012
74-93-1...................................... Methyl mercaptan [Methanethiol].................... 0.049
556-64-9..................................... Methyl thiocyanate [Thiocyanic acid, methyl ester]. 0.085
75-79-6...................................... Methyltrichlorosilane [Silane, trichloromethyl-]... 0.018
13463-39-3................................... Nickel carbonyl.................................... 0.00067
7697-37-2.................................... Nitric acid (conc 80% or greater).................. 0.026
10102-43-9................................... Nitric oxide [Nitrogen oxide (NO)]................. 0.031
8014-95-7.................................... Oleum (Fuming Sulfuric acid) [Sulfuric acid, 0.010
mixture with sulfur trioxide].
79-21-0...................................... Peracetic acid [Ethaneperoxoic acid]............... 0.0045
594-42-3..................................... Perchloromethylmercaptan [Methanesulfenyl chloride, 0.0076
trichloro-].
75-44-5...................................... Phosgene [Carbonic dichloride]..................... 0.00081
7803-51-2.................................... Phosphine.......................................... 0.0035
10025-87-3................................... Phosphorus oxychloride [Phosphoryl chloride]....... 0.0030
7719-12-2.................................... Phosphorus trichloride [Phosphorous trichloride]... 0.028
110-89-4..................................... Piperidine......................................... 0.022
107-12-0..................................... Propionitrile [Propanenitrile]..................... 0.0037
109-61-5..................................... Propyl chloroformate [Carbonochloridic acid, 0.010
propylester].
75-55-8...................................... Propyleneimine [Aziridine, 2-methyl-].............. 0.12
75-56-9...................................... Propylene oxide [Oxirane, methyl-]................. 0.59
7446-09-5.................................... Sulfur dioxide (anhydrous)......................... 0.0078
7783-60-0.................................... Sulfur tetrafluoride [Sulfur fluoride (SF4), (T-4)- 0.0092
].
7446-11-9.................................... Sulfur trioxide.................................... 0.010
75-74-1...................................... Tetramethyllead [Plumbane, tetramethyl-]........... 0.0040
509-14-8..................................... Tetranitromethane [Methane, tetranitro-]........... 0.0040
7750-45-0.................................... Titanium tetrachloride [Titanium chloride (TiCl4) 0.020
(T-4)-].
584-84-9..................................... Toluene 2,4-diisocyanate [Benzene, 2,4-diisocyanato- 0.0070
1-methyl-].
91-08-7...................................... Toluene 2,6-diisocyanate [Benzene, 1,3-diisocyanato- 0.0070
2-methyl-].
26471-62-5................................... Toluene diisocyanate (unspecified isomer) [Benzene, 0.0070
1,3-diisocyanatomethyl-].
75-77-4...................................... Trimethylchlorosilane [Silane, chlorotrimethyl-]... 0.050
108-05-4..................................... Vinyl acetate monomer [Acetic acid ethenyl ester].. 0.26
----------------------------------------------------------------------------------------------------------------
[61 FR 31729, June 20, 1996, as amended at 62 FR 45132, Aug. 25, 1997]
[[Page 73]]
PART 69--SPECIAL EXEMPTIONS FROM REQUIREMENTS OF THE CLEAN AIR ACT--Table of Contents
Subpart A--Guam
Sec.
69.11 New exemptions.
69.12 Continuing exemptions.
69.13 Title V conditional exemption.
Subpart B--American Samoa
69.21 New exemptions. [Reserved]
69.22 Title V conditional exemption.
Subpart C--Commonwealth of the Northern Mariana Islands
69.31 New exemptions. [Reserved]
69.32 Title V conditional exemption.
Subpart D--The U.S. Virgin Islands
69.41 New exemptions.
Subpart E--Alaska
69.51 Exemptions.
Authority: 42 U.S.C. 7545(1) and (g), 7625-1.
Source: 50 FR 25577, June 20, 1985, unless otherwise noted.
Subpart A--Guam
Sec. 69.11 New exemptions.
(a) Pursuant to section 325(a) of the Clean Air Act (``CAA'') and a
petition submitted by the Governor of Guam (``Petition''), the
Administrator of the Environmental Protection Agency (``EPA'')
conditionally exempts electric generating units on Guam from certain CAA
requirements.
(1) A waiver of the requirement to obtain a prevention of
significant deterioration (``PSD'') permit prior to construction is
granted for the electric generating units identified in the Petition as
Cabras Diesel No. 1, the Tenjo project, and three 6-megawatt diesel
generators to be constructed at Orote, with the following conditions:
(i) Each electric generating unit shall not be operated until a
final PSD permit is issued for that unit;
(ii) Each electric generating unit shall not be operated until that
unit complies with all requirements of its PSD permit, including, if
necessary, retrofitting with the best available control technology
(``BACT'');
(iii) The PSD application for each electric generating unit shall be
deemed complete without the submittal of the required one year of on-
site meteorological data, however, EPA will not issue a PSD permit to
such a unit prior to submission of such data or data which the EPA finds
to be an equivalent and acceptable substitute; and
(iv) If any electric generating unit covered by this paragraph is
operated either prior to the issuance of a final PSD permit or without
BACT equipment, that electric generating unit shall be deemed in
violation of this waiver and the CAA beginning on the date of
commencement of construction of that unit.
(2) A waiver of the three nonattainment area requirements (a
construction ban, the use of lowest achievable emission rate control
equipment, and emission offset requirements) currently applicable to the
Cabras-Piti area is granted for electric generating units with the
following conditions:
(i) A tower and meteorological station shall be constructed in the
Cabras-Piti area by May 1, 1993;
(ii) Meteorological data shall be collected from the Cabras-Piti
station which is sufficient to run air quality models both to
demonstrate no current exceedences of the primary national ambient air
quality standard for sulfur dioxide (``sulfur dioxide NAAQS''), as set
forth at 40 CFR 50.4, and sufficient to submit a complete request for
redesignation of the area to attainment;
(iii) Ambient sulfur dioxide monitors shall be installed and
operated in accordance with the procedures set forth at 40 CFR part 58,
the PSD air monitoring requirements, and any additional monitoring
requested by EPA to verify the efficacy of the intermittent control
strategy (``ICS'') of fuel switching;
(iv) Within three years from the effective date of this waiver, the
Governor of Guam shall submit to the EPA a complete request that the
Cabras-Piti area be redesignated to attainment for the sulfur dioxide
NAAQS;
(v) Electric generating units to be constructed in the Cabras-Piti
area
[[Page 74]]
must submit applications for PSD permits as though the area had been
redesignated to attainment for the sulfur dioxide NAAQS;
(vi) The Cabras-Piti area electric generating units shall comply
with the fuel switching ICS described in paragraph (a)(3)(i) of this
section;
(vii) If the collected data and air quality analysis does not
demonstrate to the EPA's satisfaction that there are no current or
likely future exceedences of the sulfur dioxide NAAQS, the EPA will so
notify the Governor of Guam;
(viii) Within six months of such notification, the Governor of Guam
shall submit to the EPA an implementation plan which includes a schedule
of emission reductions and/or control measures that will ensure
achievement of the sulfur dioxide NAAQS within one year of submission of
the implementation plan; and
(ix) If the Governor of Guam fails to submit an implementation plan
in a timely fashion, or if EPA disapproves that implementation plan, all
electric generating units subject to the fuel switching ICS described in
paragraph (a)(3)(i) of this section shall be fueled exclusively with low
sulfur fuel.
(3) A waiver of the prohibition on the use of the ICS of fuel
switching is granted for electric generating units with the following
conditions:
(i) The protocol to be followed for the ICS of fuel switching for
electric generating units shall be the one set forth in a separate EPA
document entitled Cabras-Piti Area Intermittent Control Strategy; and
(ii) This protocol may be modified by the EPA to protect against
exceedences of the sulfur dioxide NAAQS and to accommodate additional
electric generating units.
(b) The waiver will be periodically reviewed (at intervals no longer
than three years) and, as deemed appropriate by the Administrator, can
be modified or terminated at any time through rulemaking procedures.
(c) Pursuant to Section 325(a) of the CAA and a petition submitted
by the Governor of Guam on July 14, 1995 (``1995 Petition''), the
Administrator of EPA conditionally exempts Guam Power Authority
(``GPA'') from certain CAA requirements.
(1) A waiver of the requirement to obtain a PSD permit prior to
construction is granted for the electric generating unit identified in
the 1995 Petition as Cabras Unit No. 4, with the following conditions:
(i) Cabras Unit No. 4 shall not operate until a final PSD permit is
received by GPA for this unit;
(ii) Cabras Unit No. 4 shall not operate until it complies with all
requirements of its PSD permit, including, if necessary, retrofitting
with BACT;
(iii) If Cabras Unit No. 4 operates either prior to the issuance of
a final PSD permit or without BACT equipment, Cabras Unit No. 4 shall be
deemed in violation of this waiver and the CAA beginning on the date of
commencement of construction of the unit.
(2) A waiver of the requirement to obtain a PSD permit prior to the
operation of the unit identified in the 1995 Petition as Cabras Unit No.
3 is granted subject to the following conditions:
(i) The protocol to be followed for the ICS of fuel switching for
electric generating units shall be modified to require the use of fuel
oil with a sulfur content of 2.00 percent or less during offshore wind
conditions. This fuel shall be fired in Cabras Power Plant Units Nos. 1
through 3 and in Piti Power Plant Units Nos. 4 and 5.
(ii) Cabras Unit No. 3 shall operate in compliance with all
applicable requirements in its permits to construct and to operate as
issued by Guam Environmental Protection Agency.
(iii) The waiver provisions allowing Cabras Unit No. 3 to operate
prior to issuance of a PSD permit shall expire on August 15, 1996, or
upon the receipt by GPA of a PSD permit for Cabras Unit No. 3, whichever
event occurs first.
(3) On or before October 15, 1995, GPA shall submit to EPA, Region
IX, a report concerning the operation of Cabras Unit No. 3 and the
construction of Cabras Unit No. 4. The report shall contain:
(i) A summary of GPA's conclusions from its wind tunnel study;
(ii) A description of the alternatives available to assure
compliance with all air quality requirements, including
[[Page 75]]
PSD requirements, during the operation of Cabras Units Nos. 3 and 4;
(iii) A description of the alternative GPA chooses to assure
compliance with all air quality requirements, including PSD
requirements, during the operation of Cabras Units Nos. 3 and 4; and
(iv) A plan of implementation by GPA.
(d)(1) Pursuant to Section 325(a) of the CAA and a petition
submitted by the Governor of Guam on February 11, 1997 (``1997
Petition''), the Administrator of EPA conditionally exempts Piti Power
Plant Units No. 8 and No. 9 from certain CAA requirements.
(2) A waiver of the requirement to obtain a PSD permit prior to
construction is granted for the electric generating units identified in
the 1997 Petition as Piti Units No. 8 and No. 9 (two 45 megawatt
baseload diesel electric generators and associated waste heat recovery
boilers with a steam generator), with the following conditions:
(i) Piti Units No. 8 and No. 9 shall not operate until final PSD
permits are received for these units;
(ii) Piti Units No. 8 and No. 9 shall not operate until they comply
with all requirements of their PSD permits, including, if necessary,
retrofitting with BACT;
(iii) If either Piti Units No. 8 or No. 9 operate either prior to
the issuance of a final PSD permit or without BACT equipment, the Piti
Unit(s) shall be deemed in violation of this waiver and the CAA
beginning on the date of commencement of construction of the unit(s).
[58 FR 43043, Aug. 12, 1993, as amended at 60 FR 48038, Sept. 18, 1995;
62 FR 44416, Aug. 21, 1997]
Sec. 69.12 Continuing exemptions.
(a) Effective on the expiration date of the initial eighteen month
exemption provided under section 325(b) of ``the Act'', the
Administrator of the Environmental Protection Agency (EPA) exempts the
Guam Power Authority's two sixty-six megawatt oil-fired steam units
which comprise the Cabras Power Plant from sulfur dioxide requirements
associated with New Source Performance Standards (NSPS) under section
111 of the Clean Air Act and from the related NSPS limitation on sulfur
dioxide emissions contained in the Guam SIP.
(b) The exemption will be reviewed at intervals and upon occasions
to be specified by EPA (not longer than 2 years), allowing EPA to
determine whether the factual circumstances upon which it is based,
including commitments made by GPA in the application for extension and
the continuing attainment of the National Ambient Air Quality Standards
(NAAQS) for Sulfur Dioxide, have changed. The commitments include
reporting requirements specified by the Guam Environmental Protection
Agency (GEPA), including but not limited to strict implementation of
both the monitoring (wind direction and ambient SO2
concentration) and fuel switching portions of the control strategy,
reporting to GEPA of all applications of the strategy, and reporting to
GEPA of laboratory analyses of percent sulfur in all new fuel stocks
acquired GPA. A finding by EPA that the source is not in compliance with
the terms of the exemption will be grounds for enforcement of the terms
of the exemption under section 113. A finding by EPA that factual
circumstances have changed will be grounds for revocation of the
exemption and enforcement of the underlying Clean Air Act requirements.
(c) It is a condition of this action that GPA provide to EPA a copy
of any GPA application for rate changes or for commercial credit for
construction or replacement of capital assets, simultaneously with
submission of such application to the rate making authority or
commercial credit institution. No later than the 90th day after a
finding by EPA that the circumstances upon which the determination for
continuing the exemption was originally made have changed, this
exemption shall terminate unless within that time GPA submits
information that it is taking all practicable steps to comply with NSPS
and SIP requirements related to SO2. EPA shall review such
information under the procedures it has established and shall, as
appropriate, extend or terminate the exemption.
[[Page 76]]
Sec. 69.13 Title V conditional exemption.
(a) Conditional exemption. In response to a petition submitted by
the Governor of Guam and pursuant to section 325(a) of the Clean Air Act
(Act), the Administrator of the United States EPA (EPA) grants the
following conditional exemptions:
(1) Guam is exempted from the requirement to develop, submit for
approval, and implement an operating permit program under title V of the
Clean Air Act on the condition that Guam meets the requirements of
paragraph (b) of this section and subject to the provisions of
paragraphs (c) through (e) of this section.
(2) Except for sources listed under paragraph (a)(4) of this
section, owners or operators of sources located in Guam subject to the
operating permit requirements of title V of the Clean Air Act are exempt
from the requirement to apply for and obtain a title V operating permit,
on the condition that the owner or operator of each such source must
apply for and obtain an operating permit under an EPA approved alternate
program that meets the requirements of paragraph (b) of this section and
subject to the provisions of paragraphs (c) through (e) of this section.
The owner or operator of each such source shall apply for and obtain a
permit under the alternate operating permit program by the deadlines set
forth in the approved program, but in any event shall obtain a permit no
later than January 13, 2003. If the owner or operator of any source has
not obtained an operating permit under an alternate operating program
approved by EPA for Guam by January 13, 2003, the exemption for such
source shall expire and the owner or operator of such source shall
become subject to the permitting requirements of 40 CFR part 71 on that
date, consistent with paragraph (d)(4) of this section.
(3) Upon EPA approval of an alternate operating permit program
adopted by Guam in accordance with this Sec. 69.13, a person shall not
violate any permit condition or term in a permit that has been issued
under such alternate permit program.
(4) This exemption does not apply to owners or operators of major
sources of hazardous air pollutants (HAPs) as defined under section 112
of the Clean Air Act or to owners or operators of solid waste
incinerators subject to the title V requirements of section 129(e) of
the Act. Owners or operators of major sources of HAPs or solid waste
incinerators shall be subject to the requirements of 40 CFR part 71 and
shall apply for and obtain a part 71 permit by the deadlines specified
in 40 CFR part 71. Any owner or operator of a major source of HAPs
subject to 40 CFR part 63, subpart B, shall submit a timely part 71
permit application as required by 40 CFR part 71 and 40 CFR part 63,
subpart B, requesting a case-by-case section 112(g) or 112(j) Maximum
Achievable Control Technology (MACT) determination.
(b) Requirements for the alternate operating program. Guam shall
develop and submit an alternate operating permit program (the program)
to EPA for approval. Upon approval by EPA, Guam shall implement the
program. The program, including the necessary statutory and regulatory
authority, must be submitted by January 13, 1999 for approval. The
submittal shall include the following elements:
(1) The program must contain regulations that ensure that:
(i) The permits shall include emission limits and standards, and
other terms or conditions necessary to ensure compliance with all
applicable federal requirements, as defined under 40 CFR 70.2.
(ii) The limitations, controls, and requirements in the permits
shall be permanent, quantifiable, and otherwise enforceable as a
practical matter.
(iii) Permits shall contain monitoring, recordkeeping and reporting
requirements sufficient to ensure compliance with applicable federal
requirements during the reporting period.
(iv) The program shall require that the owner or operator of each
source submit permit applications with compliance certifications
describing the source's compliance status with all applicable
requirements. The program shall also provide that each permit contain a
requirement that the owner or operator of a source submit annual
[[Page 77]]
compliance certifications. The compliance certification shall contain a
compliance plan, and shall contain a schedule for expeditiously
achieving compliance if the source is not in compliance with all
applicable requirements. The program must provide that approval of a
permit with a compliance plan and schedule does not sanction
noncompliance.
(2) The program shall provide for the collection of fees from
permitted sources or other revenues in an amount that will pay for the
cost of operation of such a program and ensure that these funds are used
solely to support the program.
(3) The program shall provide for public notice and a public comment
period of at least 30 days for each permit, significant permit
modification, and permit renewal, and shall include submittal to EPA of
each permit, significant permit modification, and permit renewal.
(4) The program shall provide EPA at least 45 days from receipt of a
permit, modification, or renewal for EPA review and objection prior to
issuance. The program shall provide that if EPA objects to a permit sent
to EPA for review, Guam cannot issue such permit until the permit is
revised in a manner that resolves EPA's objections. The program shall
provide that Guam will have no more than 180 days to resolve EPA's
objections and that if the objections are not resolved within that time
period, EPA shall issue the permit under 40 CFR part 71.
(5) The program shall provide that all documents other than
confidential business information will be made available to the public.
(6) The program shall provide Guam with the authority to enforce
permits, including the authority to assess civil and criminal penalties
up to $10,000 per day per violation and to enjoin activities that are in
violation of the permit, the program, or the Act without first revoking
the permit.
(7) The program shall require that owners or operators of nonmajor
sources of hazardous air pollutants that are required to obtain title V
permits, and owners or operators of major sources of all other air
pollutants as defined at 40 CFR 70.2 that are exempted from 40 CFR part
71 under paragraph (a) of this section, obtain an operating permit under
the approved program. The program shall include a schedule for issuing
permits to all subject sources within three years of EPA approval of the
program.
(8) The program shall include a system of regular inspections of
permitted sources, a system to identify any unpermitted major sources,
and guidelines for appropriate responses to violations.
(9) The program shall provide for the issuance of permits with a
fixed term that shall not exceed five years.
(10) The program shall allow Guam or the EPA to reopen a permit for
cause. The program shall provide that if EPA provides Guam with written
notice that a permit must be reopened for cause, Guam shall issue a
revised permit within 180 days (including public notice and comment)
that sufficiently addresses EPA's concerns. The program shall provide
that if Guam fails to issue a permit that resolves EPA's concerns within
180 days, then EPA will terminate, modify, or revoke and reissue the
permit under part 71 after providing the permittee and the public with
notice and opportunity for comment.
(c) State Implementation Plan (SIP) submittal. In conjunction with
the submittal of the alternative operating permit program, Guam shall,
no later than January 13, 1999 submit a revision to its SIP that
provides that a person shall not violate a permit condition or term in
an operating permit that has been issued under an EPA approved alternate
operating permit program adopted by Guam pursuant to the exemption
authorized in this Sec. 69.13.
(d) Expiration and revocation of the exemption. This exemption shall
expire or may be revoked under the following circumstances:
(1) If Guam fails to submit an alternate operating permit program by
January 13, 1999, the exemption shall automatically expire with no
further rulemaking and 40 CFR part 71 shall become effective for all
subject sources in Guam on that date.
(2) In the event that EPA disapproves Guam's alternate operating
permit program because the program does not
[[Page 78]]
meet the requirements set forth in paragraph (b) of this section, EPA
will revoke the exemption by rulemaking.
(3) If, by January 13, 2003, the owner or operator of any subject
source has not obtained a federally enforceable operating permit under
an EPA approved program, the exemption shall automatically expire for
such source and such source shall be subject to the permitting
requirements of 40 CFR part 71. Guam will work with EPA to identify such
sources prior to expiration of the exemption under this paragraph (d).
(4) EPA shall revoke the exemption in its entirety through
rulemaking if Guam does not adequately administer and enforce an
alternate operating permit program approved by EPA.
(5) EPA shall revoke the exemption by rulemaking with respect to the
owner or operator of any source if, during the 45-day review period, EPA
objects to issuance of a permit and Guam fails to resolve EPA's
objections within 180 days. EPA shall also revoke the exemption by
rulemaking for the owner or operator of any source in the event that EPA
reopens a permit for cause and Guam does not issue a permit that
resolves the concerns as set forth in EPA's notice to reopen within 180
days.
(6) EPA reserves its authority to revoke or modify this exemption in
whole or in part.
(e) Scope of the exemption. This exemption applies solely to the
requirement that an owner or operator obtain an operating permit under
title V of the Clean Air Act and the requirement that Guam implement a
title V permit program. In addition, this exemption does not apply to
owners or operators of sources set forth in paragraph (a)(4) of this
section. Owners and operators of air pollutant sources are required to
comply with all other applicable requirements of the Clean Air Act. For
purposes of complying with any applicable requirement that is triggered
or implemented by the approval of a title V permit program, the approval
date for owners or operators to which this exemption applies shall be
the date that EPA approves the alternate program for each territory or,
for owners or operators of sources that are subject to 40 CFR part 71,
the approval date shall be the effective date of 40 CFR part 71, which
is July 31, 1996.
[61 FR 58289, Nov. 13, 1996; 61 FR 66077, Dec. 16, 1996]
Subpart B--American Samoa
Sec. 69.21 New exemptions. [Reserved]
Sec. 69.22 Title V conditional exemption.
(a) Conditional exemption. In response to a petition submitted by
the Governor of American Samoa (American Samoa) and pursuant to section
325(a) of the Clean Air Act (Act), the Administrator of the United
States EPA (EPA) grants the following conditional exemptions:
(1) American Samoa is exempted from the requirement to develop,
submit for approval, and implement an operating permit program under
title V of the Clean Air Act on the condition that American Samoa meets
the requirements of paragraph (b) of this section and subject to the
provisions of paragraphs (c) through (f) of this section.
(2) Except for sources listed under paragraph (a)(4) of this
section, owners or operators of sources located in American Samoa
subject to the operating permit requirements of title V of the Clean Air
Act are exempt from the requirement to apply for and obtain a title V
operating permit, on the condition that the owner or operator of each
such source must apply for and obtain an operating permit under an EPA
approved alternate program that meets the requirements of paragraph (b)
of this section and subject to the provisions of paragraphs (c) through
(f) of this section. The owner or operator of each such source shall
apply for and obtain a permit under the alternate operating permit
program by the deadlines set forth in the approved program, but in any
event shall obtain a permit no later than January 13, 2003. If the owner
or operator of any source has not obtained an operating permit under an
alternate operating program approved by EPA for American Samoa by
January 13, 2003, the exemption for such source shall expire and the
owner or operator of such source shall become subject to the permitting
requirements
[[Page 79]]
of 40 CFR part 71 on that date, consistent with paragraph (e)(4) of this
section.
(3) Upon EPA approval of an alternate operating permit program
adopted by American Samoa in accordance with this Sec. 69.22, a person
shall not violate any permit condition or term in a permit that has been
issued under such alternate permit program.
(4) This exemption does not apply to owners or operators of major
sources of hazardous air pollutants (HAPs) as defined under section 112
of the Clean Air Act or to owners or operators of solid waste
incinerators subject to the title V requirements of section 129(e) of
the Act. Owners or operators of major sources of HAPs or solid waste
incinerators shall be subject to the requirements of 40 CFR part 71 and
shall apply for and obtain a part 71 permit by the deadlines specified
in 40 CFR part 71. Any owner or operator of a major source of HAPs
subject to 40 CFR part 63, subpart B, shall submit a timely part 71
permit application as required by 40 CFR part 71 and 40 CFR part 63,
subpart B, requesting a case-by-case 112(g) or 112(j) Maximum Achievable
Control Technology (MACT) determination.
(b) Requirements for the alternate operating program. American Samoa
shall develop and submit an alternate operating permit program (the
program) to EPA for approval. Upon approval by EPA, American Samoa shall
implement the program. The program, including the necessary statutory
and regulatory authority, must be submitted by January 13, 1999 for
approval. The submittal shall include the following elements:
(1) The program must contain regulations that ensure that:
(i) The permits shall include emission limits and standards, and
other terms or conditions necessary to ensure compliance with all
applicable federal requirements, as defined under 40 CFR 70.2.
(ii) The limitations, controls, and requirements in the permits
shall be permanent, quantifiable, and otherwise enforceable as a
practical matter.
(iii) Permits shall contain monitoring, recordkeeping and reporting
requirements sufficient to ensure compliance with applicable federal
requirements during the reporting period.
(iv) The program shall require that the owner or operator of each
source submit permit applications with compliance certifications
describing the source's compliance status with all applicable
requirements. The program shall also provide that each permit contain a
requirement that the owner or operator of a source submit annual
compliance certifications. The compliance certification shall contain a
compliance plan, and shall contain a schedule for expeditiously
achieving compliance if the source is not in compliance with all
applicable requirements. The program must provide that approval of a
permit with a compliance plan and schedule does not sanction
noncompliance.
(2) The program shall provide for the collection of fees from
permitted sources or other revenues in an amount that will pay for the
cost of operation of such a program and ensure that these funds are used
solely to support the program.
(3) The program shall provide for public notice and a public comment
period of at least 30 days for each permit, significant permit
modification, and permit renewal, and shall include submittal to EPA of
each permit, significant permit modification, and permit renewal.
(4) The program shall provide EPA at least 45 days from receipt of a
permit, modification, or renewal for EPA review and objection prior to
issuance. The program shall provide that if EPA objects to a permit sent
to EPA for review, American Samoa cannot issue such permit until the
permit is revised in a manner that resolves EPA's objections. The
program will provide that American Samoa will have no more than 180 days
to resolve EPA's objections and that if the objections are not resolved
within that time period, EPA shall issue the permit under 40 CFR part
71.
(5) The program shall provide that all documents other than
confidential business information will be made available to the public.
(6) The program shall provide American Samoa with the authority to
enforce permits, including the authority
[[Page 80]]
to assess civil and criminal penalties up to $10,000 per day per
violation and to enjoin activities that are in violation of the permit,
the program, or the Act without first revoking the permit.
(7) The program shall require that owners or operators of nonmajor
sources of hazardous air pollutants that are required to obtain title V
permits, and owners or operators of major sources of all other air
pollutants as defined in 40 CFR 70.2 that are exempted from 40 CFR part
71 under paragraph (a) of this section, obtain an operating permit under
the approved program. The program shall include a schedule for issuing
permits to all subject sources within three years of EPA approval of the
program.
(8) The program shall include a system of regular inspections of
permitted sources, a system to identify any unpermitted major sources,
and guidelines for appropriate responses to violations.
(9) The program shall provide for the issuance of permits with a
fixed term that shall not exceed five years.
(10) The program shall allow American Samoa or the EPA to reopen a
permit for cause. The program shall provide that if EPA provides
American Samoa with written notice that a permit must be reopened for
cause, American Samoa shall issue a revised permit within 180 days
(including public notice and comment) that sufficiently addresses EPA's
concerns. The program shall provide that if American Samoa fails to
issue a permit that resolves EPA's concerns within 180 days, then EPA
will terminate, modify, or revoke and reissue the permit under part 71
after providing the permittee and the public with notice and opportunity
for comment.
(c) Ambient air quality program. American Samoa shall implement the
following program to address the National Ambient Air Quality Standards
(NAAQS) as a condition of the waiver:
(1) American Samoa shall collect complete meteorological data and
complete refined air quality modeling for the Pago Pago Harbor and
submit such data and modeling results to EPA by January 13, 1999.
(2) American Samoa shall address any NAAQS exceedances demonstrated
through the modeling results with revisions to its SIP that shall be
submitted by January 13, 2000. The plan shall ensure compliance with the
NAAQS is achieved by January 14, 2002.
(d) State Implementation Plan (SIP) submittal. In conjunction with
the submittal of the alternative operating permit program, American
Samoa shall, no later than January 13, 1999, submit a revision to its
SIP that provides that a person shall not violate a permit condition or
term in an operating permit that has been issued under an EPA approved
alternate operating permit program adopted by American Samoa pursuant to
the exemption authorized in this Sec. 69.22.
(e) Expiration and revocation of the exemption. This exemption shall
expire or may be revoked under the following circumstances:
(1) If American Samoa fails to submit the required alternate
operating permit program or modeling (and supporting data) by March 15,
1999, the exemption shall automatically expire with no further
rulemaking and 40 CFR part 71 shall become effective for all subject
sources in American Samoa on that date. The exemption will also expire
with no further rulemaking in the event that American Samoa fails to
submit a SIP revision by January 13, 2000, consistent with paragraph
(c)(2) of this section.
(2) In the event that EPA disapproves American Samoa's alternate
operating permit program because the program does not meet the
requirements set forth in paragraph (b) of this section, EPA will revoke
the exemption by rulemaking.
(3) If, by March 14, 2003, the owner or operator of any subject
source has not obtained a federally enforceable operating permit under
an EPA approved program, the exemption shall automatically expire for
such source and such source shall be subject to the permitting
requirements of 40 CFR part 71. American Samoa will work with EPA to
identify such sources prior to expiration of the exemption under this
paragraph (d).
(4) EPA shall revoke the exemption in its entirety through
rulemaking if American Samoa does not adequately
[[Page 81]]
administer and enforce an alternate operating permit program approved by
EPA.
(5) EPA shall revoke the exemption by rulemaking with respect to the
owner or operator of any source if, during the 45-day review period, EPA
objects to issuance of a permit and American Samoa fails to resolve
EPA's objections within 180 days. EPA shall also revoke the exemption by
rulemaking for the owner or operator of any source in the event that EPA
reopens a permit for cause and American Samoa does not issue a permit
that resolves the concerns as set forth in EPA's notice to reopen within
180 days.
(6) EPA reserves its authority to revoke or modify this exemption in
whole or in part.
(f) Scope of the exemption. This exemption applies solely to the
requirement that an owner or operator obtain an operating permit under
title V of the Clean Air Act and the requirement that American Samoa
implement a title V permit program. In addition, this exemption does not
apply to owners or operators of sources set forth in paragraph (a)(4) of
this section. Owners and operators of air pollutant sources are required
to comply with all other applicable requirements of the Clean Air Act.
For purposes of complying with any applicable requirement that is
triggered or implemented by the approval of a title V permit program,
the approval date for owners or operators to which this exemption
applies shall be the date that EPA approves the alternate program for
each territory or, for owners or operators of sources that are subject
to 40 CFR part 71, the approval date shall be the effective date of 40
CFR part 71, which is July 31, 1996.
[61 FR 58291, Nov. 13, 1996; 61 FR 66077, Dec. 16, 1996]
Subpart C--Commonwealth of the Northern Mariana Islands
Sec. 69.31 New exemptions. [Reserved]
Sec. 69.32 Title V conditional exemption.
(a) Conditional exemption. In response to a petition submitted by
the Governor of The Commonwealth of the Northern Mariana Islands (CNMI)
and pursuant to section 325(a) of the Clean Air Act (Act), the
Administrator of the United States EPA (EPA) grants the following
conditional exemptions:
(1) CNMI is exempted from the requirement to develop, submit for
approval, and implement an operating permit program under title V of the
Clean Air Act on the condition that CNMI meets the requirements of
paragraph (b) of this section and subject to the provisions of
paragraphs (c) through (f) of this section.
(2) Except for sources listed under paragraph (a)(4) of this
section, owners or operators of sources located in CNMI subject to the
operating permit requirements of title V of the Clean Air Act are exempt
from the requirement to apply for and obtain a title V operating permit,
on the condition that the owner or operator of each such source must
apply for and obtain an operating permit under an EPA approved alternate
program that meets the requirements of paragraph (b) of this section and
subject to the provisions of paragraphs (c) through (f) of this section.
The owner or operator of each such source shall apply for and obtain a
permit under the alternate operating permit program by the deadlines set
forth in the approved program, but in any event shall obtain a permit no
later than January 13, 2003. If the owner or operator of any source has
not obtained an operating permit under an alternate operating program
approved by EPA for CNMI by January 13, 2003, the exemption for such
source shall expire and the owner or operator of such source shall
become subject to the permitting requirements of 40 CFR part 71 on that
date, consistent with paragraph (e)(3) of this section.
(3) Upon EPA approval of an alternate operating permit program
adopted by CNMI in accordance with this Sec. 69.32, a person shall not
violate any permit condition or term in a permit that has been issued
under such alternate permit program.
(4) This exemption does not apply to owners or operators of major
sources of hazardous air pollutants (HAPs) as defined under section 112
of the Clean Air Act or to owners or operators of solid waste
incinerators subject to the title V requirements of section 129(e) of
the Act. Owners or operators of major
[[Page 82]]
sources of HAPs or solid waste incinerators shall be subject to the
requirements of 40 CFR part 71 and shall apply for and obtain a part 71
permit by the deadlines specified in 40 CFR part 71. Any owner or
operator of a major source of HAPs subject to 40 CFR part 63, subpart B,
shall submit a timely part 71 permit application as required by 40 CFR
part 71 and 40 CFR part 63, subpart B, requesting a case-by-case section
112(g) or 112(j) Maximum Achievable Control Technology (MACT)
determination.
(b) Requirements for the alternate operating program. CNMI shall
develop and submit an alternate operating permit program (the program)
to EPA for approval. Upon approval by EPA, CNMI shall implement the
program. The program, including the necessary statutory and regulatory
authority, must be submitted by January 13, 1999 for approval. The
submittal shall include the following elements:
(1) The program must contain regulations that ensure that:
(i) The permits shall include emission limits and standards, and
other terms or conditions necessary to ensure compliance with all
applicable federal requirements, as defined under 40 CFR 70.2.
(ii) The limitations, controls, and requirements in the permits
shall be permanent, quantifiable, and otherwise enforceable as a
practical matter.
(iii) Permits shall contain monitoring, recordkeeping and reporting
requirements sufficient to ensure compliance with applicable federal
requirements during the reporting period.
(iv) The program shall require that the owner or operator of each
source submit permit applications with compliance certifications
describing the source's compliance status with all applicable
requirements. The program shall also provide that each permit contain a
requirement that the owner or operator of a source submit annual
compliance certifications. The compliance certification shall contain a
compliance plan, and shall contain a schedule for expeditiously
achieving compliance if the source is not in compliance with all
applicable requirements. The program must provide that approval of a
permit with a compliance plan and schedule does not sanction
noncompliance.
(2) The program shall provide for the collection of fees from
permitted sources or other revenues in an amount that will pay for the
cost of operation of such a program and ensure that these funds are used
solely to support the program.
(3) The program shall provide for public notice and a public comment
period of at least 30 days for each permit, significant permit
modification, and permit renewal, and shall include submittal to EPA of
each permit, significant permit modification, and permit renewal.
(4) The program shall provide EPA at least 45 days from receipt of a
permit, modification, or renewal for EPA review and objection prior to
issuance. The program shall provide that if EPA objects to a permit sent
to EPA for review, CNMI cannot issue such permit until the permit is
revised in a manner that resolves EPA's objections. The program will
provide that CNMI will have no more than 180 days to resolve EPA's
objections and that if the objections are not resolved within that time
period, EPA shall issue the permit under 40 CFR part 71.
(5) The program shall provide that all documents other than
confidential business information will be made available to the public.
(6) The program shall provide CNMI with the authority to enforce
permits, including the authority to assess civil and criminal penalties
up to $10,000 per day per violation and to enjoin activities that are in
violation of the permit, the program, or the Act without first revoking
the permit.
(7) The program shall require that owners or operators of nonmajor
sources of hazardous air pollutants that are required to obtain title V
permits, and owners or operators of major sources of all other air
pollutants as defined at 40 CFR 70.2 that are exempted from 40 CFR part
71 under paragraph (a) of this section, obtain an operating permit under
the approved program. The program shall include a schedule for issuing
permits to all subject sources within three years of EPA approval of the
program.
[[Page 83]]
(8) The program shall include a system of regular inspections of
permitted sources, a system to identify any unpermitted major sources,
and guidelines for appropriate responses to violations.
(9) The program shall provide for the issuance of permits with a
fixed term that shall not exceed five years.
(10) The program shall allow CNMI or the EPA to reopen a permit for
cause. The program shall provide that if EPA provides CNMI with written
notice that a permit must be reopened for cause, CNMI shall issue a
revised permit within 180 days (including public notice and comment)
that sufficiently addresses EPA's concerns. The program shall provide
that if CNMI fails to issue a permit that resolves EPA's concerns within
180 days, then EPA will terminate, modify, or revoke and reissue the
permit under part 71 after providing the permittee and the public with
notice and opportunity for comment.
(c) Ambient air quality program. CNMI shall implement the following
program to protect attainment of National Ambient Air Quality Standards
(NAAQS) as a condition of the waiver:
(1) CNMI shall enforce its January 19, 1987 Air Pollution Control
(APC) regulations, including the requirement that all new or modified
sources comply with the NAAQS and Prevention of Significant
Deterioration (PSD) increments.
(2) CNMI may conduct air emissions modeling, using EPA guidelines,
for power plants located on Saipan to assess EPA's preliminary
determination of non-compliance with the NAAQS for sulfur dioxide
(SO2). CNMI shall complete and submit any additional modeling
to EPA by January 13, 1998 to determine whether existing power plants
cause or contribute to violation of the NAAQS and PSD increments in the
APC regulations and 40 CFR 52.21.
(3) If CNMI's additional modeling, based on EPA guidelines, predicts
exceedances of the NAAQS for SO2, or if CNMI elects to accept
EPA's preliminary determination that the NAAQS for SO2 have
been exceeded, CNMI shall submit a revised SIP that ensures compliance
with the NAAQS for SO2. CNMI shall submit the proposed
revision to the SIP by January 13, 1998 or, if CNMI elects to conduct
additional modeling, by January 13, 1999. CNMI shall take appropriate
corrective actions through the SIP to demonstrate compliance with the
NAAQS for SO2 by January 15, 2001.
(d) State Implementation Plan (SIP) submittal. In conjunction with
the submittal of the alternative operating permit program, CNMI shall,
no later than January 13, 1999 submit a revision to its SIP that
provides that a person shall not violate a permit condition or term in
an operating permit that has been issued under an EPA approved alternate
operating permit program adopted by CNMI pursuant to the exemption
authorized in this Sec. 69.32.
(e) Expiration and revocation of the exemption. This exemption shall
expire or may be revoked under the following circumstances:
(1) If CNMI fails to submit the required alternate operating permit
program or any required SIP revision by January 13, 1999, the exemption
shall automatically expire with no further rulemaking and 40 CFR part 71
shall become effective for all subject sources in CNMI on that date,
consistent with paragraph (c)(3) of this section.
(2) In the event that EPA disapproves CNMI's alternate operating
permit program because the program does not meet the requirements set
forth in paragraph (b) of this section, EPA will revoke the exemption by
rulemaking.
(3) If, by January 13, 2003, the owner or operator of any subject
source has not obtained a federally enforceable operating permit under
an EPA approved program, the exemption shall automatically expire for
such source and such source shall be subject to the permitting
requirements of 40 CFR part 71. CNMI will work with EPA to identify such
sources prior to expiration of the exemption under this paragraph (e).
(4) EPA shall revoke the exemption in its entirety through
rulemaking if CNMI does not adequately administer and enforce an
alternate operating permit program approved by EPA.
(5) EPA shall revoke the exemption by rulemaking with respect to the
owner or operator of any source if, during the 45-day review period, EPA
objects to issuance of a permit and CNMI
[[Page 84]]
fails to resolve EPA's objections within 180 days. EPA shall also revoke
the exemption by rulemaking for the owner or operator of any source in
the event that EPA reopens a permit for cause and CNMI does not issue a
permit that resolves the concerns as set forth in EPA's notice to reopen
within 180 days.
(6) EPA reserves its authority to revoke or modify this exemption in
whole or in part.
(f) Scope of the exemption. This exemption applies solely to the
requirement that an owner or operator obtain an operating permit under
title V of the Clean Air Act and the requirement that CNMI implement a
title V permit program. In addition, this exemption does not apply to
owners or operators of sources set forth in paragraph (a)(4) of this
section. Owners and operators of air pollutant sources are required to
comply with all other applicable requirements of the Clean Air Act. For
purposes of complying with any applicable requirement that is triggered
or implemented by the approval of a title V permit program, the approval
date for owners or operators to which this exemption applies shall be
the date that EPA approves the alternate program for each territory or,
for owners or operators of sources that are subject to 40 CFR part 71,
the approval date shall be the effective date of 40 CFR part 71, which
is July 31, 1996.
[61 FR 58292, Nov. 13, 1996; 61 FR 66077, Dec. 16, 1996]
Subpart D--The U.S. Virgin Islands
Sec. 69.41 New exemptions.
(a) Pursuant to section 325(a) of the Clean Air Act and a petition
submitted by the Governor of the Virgin Islands, an exemption to section
123 of the Clean Air Act is granted to the Hess Oil Virgin Islands
Corporation (HOVIC) at the St. Croix refinery. Specifically, the
exemption waives the prohibition on the implementation of an
Intermittent Control Strategy (ICS) based upon atmospheric conditions in
order to set emission limitations. The emission limitations shall depend
upon the sulfur content in the residual oil burned at the refinery.
(b) The protocol to be followed for the ICS shall be set forth in a
Prevention of Significant Deterioration of Air Quality (PSD) permit
issued to HOVIC; and shall include as a minimum, the conditions listed
in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of this section.
(1) HOVIC shall maintain a meteorological tower on its property for
the purpose of the ICS which meets the required EPA QA/QC operating
specifications. At a minimum, the wind direction data will be monitored,
collected and reported as 1-hour averages, starting on the hour. If the
average wind direction for a given hour is from within the designated
sector, the wind will be deemed to have flowed from within the sector
for that hour. Each ``day'' or ``block period'', for these purposes will
start at midnight and end the following midnight.
(2) HOVIC shall maintain SO2 ambient monitors and collect ambient
SO2 concentration data for the purpose of implementing the ICS at nearby
locations approved by EPA and specified in the PSD permit. The ambient
monitors must follow the required EPA QA/QC operating specifications. At
a minimum, the data will be collected according to EPA approved State
and Local Ambient Monitoring Stations procedures found at 40 CFR 58.20,
but will, for these purposes, be averaged by the hour, starting on the
hour.
(3) The switch to a lower sulfur fuel (0.5%) will take place when
paragraphs (b)(3)(i) or (b)(3)(ii) of this section are met.
(i) The winds blow from a 45 degree sector defined as 143 to 187
degrees inclusive, where zero degrees is due north, for at least 6
consecutive hours during a 24-hour block period or any 12 non-
consecutive hours during a 24 hour block period.
(ii) One of HOVIC's ICS monitors measures an average ambient SO2
concentration that is 75% of the 24-hour NAAQS during any rolling 24-
hour average. (75% of the 24-hour NAAQS = 274 ug/m3 or 0.105 ppm).
(4) The switch back to the higher sulfur fuel (1.0%) may occur if
the conditions in paragraphs (b)(4)(i), (b)(4)(ii), and (b)(4)(iii) of
this section are met.
(i) If the ICS was triggered by paragraph (b)(3)(i) of this section,
the switch back may occur when the winds
[[Page 85]]
blow outside the sector listed in paragraph (b)(3)(i) of this section
for at least 3 consecutive hours following the period during which the
winds were blowing inside the sector.
(ii) If the ICS was triggered by paragraph (b)(3)(ii) of this
section, the switch back may occur after all of HOVIC's ICS ambient
monitors measure a 24-hour average concentration which is less than 75%
of the NAAQS for at least one 24-hour block period following any
occurrence when the monitor measured the concentration which was 75% of
the NAAQS.
(iii) If the ICS was triggered by both paragraphs (b)(3)(i) and
(b)(3)(ii) of this section, the switch back may occur when both of the
conditions in paragraphs (b)(4)(i) and (b)(4)(ii) of this section are
met.
(c) The protocol may be modified by EPA to protect against
exceedances of the sulfur dioxide NAAQS.
(d) In the event that there is an exceedance of the NAAQS, HOVIC
will report the exceedance to EPA and recommend corrective action as
well as amendments to the protocol to ensure the protection of the
NAAQS.
(e) HOVIC must comply with all fuel switching requirements,
contained in HOVIC's PSD permit.
(f) This exemption shall take effect only in the event that a final
PSD permit modification becomes effective.
(g) The Administrator may terminate the exemption through rulemaking
procedures upon determining that HOVIC's use of the ICS is causing or
contributing to an exceedance of the NAAQS.
[62 FR 61205, Nov. 14, 1997]
Subpart E--Alaska
Sec. 69.51 Exemptions.
(a) Persons in the state of Alaska, including but not limited to,
refiners, importers, distributors, resellers, carriers, retailers or
wholesale purchaser-consumers may manufacture, introduce into commerce,
sell, offer for sale, supply, dispense, offer for supply, or transport
diesel fuel, which fails to meet the sulfur concentration or dye
requirements of 40 CFR 80.29, in the state of Alaska if the fuel is used
only in the state of Alaska.
(b) Persons outside the state of Alaska, including but not limited
to, refiners, importers, distributors, resellers, carriers, retailers or
wholesale purchaser-consumers may manufacture, introduce into commerce,
sell, offer for sale, supply, offer for supply, or transport diesel
fuel, which fails to meet the sulfur concentration or dye requirements
of Sec. 80.29, outside the state of Alaska if the fuel is:
(1) Used only in the state of Alaska; and
(2) Accompanied by supporting documentation that clearly
substantiates the fuel is for use only in the state of Alaska and does
not comply with the Federal sulfur standard applicable to motor vehicle
diesel fuel.
(c) Beginning January 1, 2004, the exemptions provided in paragraphs
(a) and (b) of this section are applicable only to fuel used in those
areas of Alaska that are not served by the Federal Aid Highway System.
[63 FR 49465, Sept. 16, 1998, as amended at 64 FR 34133, June 25, 1999]
PART 70--STATE OPERATING PERMIT PROGRAMS--Table of Contents
Sec.
70.1 Program overview.
70.2 Definitions.
70.3 Applicability.
70.4 State program submittals and transition.
70.5 Permit applications.
70.6 Permit content.
70.7 Permit issuance, renewal, reopenings, and revisions.
70.8 Permit review by EPA and affected States.
70.9 Fee determination and certification.
70.10 Federal oversight and sanctions.
70.11 Requirements for enforcement authority.
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
Authority: 42 U.S.C. 7401, et seq.
Source: 57 FR 32295, July 21, 1992, unless otherwise noted.
Sec. 70.1 Program overview.
(a) The regulations in this part provide for the establishment of
comprehensive State air quality permitting
[[Page 86]]
systems consistent with the requirements of title V of the Clean Air Act
(Act) (42 U.S.C. 7401, et seq.). These regulations define the minimum
elements required by the Act for State operating permit programs and the
corresponding standards and procedures by which the Administrator will
approve, oversee, and withdraw approval of State operating permit
programs.
(b) All sources subject to these regulations shall have a permit to
operate that assures compliance by the source with all applicable
requirements. While title V does not impose substantive new
requirements, it does require that fees be imposed on sources and that
certain procedural measures be adopted especially with respect to
compliance.
(c) Nothing in this part shall prevent a State, or interstate
permitting authority, from establishing additional or more stringent
requirements not inconsistent with this Act. The EPA will approve State
program submittals to the extent that they are not inconsistent with the
Act and these regulations. No permit, however, can be less stringent
than necessary to meet all applicable requirements. In the case of
Federal intervention in the permit process, the Administrator reserves
the right to implement the State operating permit program, in whole or
in part, or the Federal program contained in regulations promulgated
under title V of the Act.
(d) The requirements of part 70, including provisions regarding
schedules for submission and approval or disapproval of permit
applications, shall apply to the permitting of affected sources under
the acid rain program, except as provided herein or modified in
regulations promulgated under title IV of the Act (acid rain program).
(e) Issuance of State permits under this part may be coordinated
with issuance of permits under the Resource Conservation and Recovery
Act and under the Clean Water Act, whether issued by the State, the U.S.
Environmental Protection Agency (EPA), or the U.S. Army Corps of
Engineers.
Sec. 70.2 Definitions.
The following definitions apply to part 70. 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.
Affected source shall have the meaning given to it in the
regulations promulgated under title IV of the Act.
Affected States are all States:
(1) Whose air quality may be affected and that are contiguous to the
State in which a part 70 permit, permit modification or permit renewal
is being proposed; or
(2) That are within 50 miles of the permitted source.
Affected unit shall have the meaning given to it in the regulations
promulgated under title IV of the Act.
Applicable requirement means all of the following as they apply to
emissions units in a part 70 source (including requirements that have
been promulgated or approved by EPA through rulemaking at the time of
issuance but have future-effective 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 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;
(3) Any standard or other requirement under section 111 of the Act,
including section 111(d);
(4) 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;
(5) Any standard or other requirement of the acid rain program under
title IV of the Act or the regulations promulgated thereunder;
(6) Any requirements established pursuant to section 504(b) or
section 114(a)(3) of the Act;
[[Page 87]]
(7) Any standard or other requirement governing solid waste
incineration, under section 129 of the Act;
(8) Any standard or other requirement for consumer and commercial
products, under section 183(e) of the Act;
(9) Any standard or other requirement for tank vessels under section
183(f) of the Act;
(10) Any standard or other requirement of the program to control air
pollution from outer continental shelf sources, under section 328 of the
Act;
(11) Any standard or other requirement of the regulations
promulgated to protect stratospheric ozone under title VI of the Act,
unless the Administrator has determined that such requirements need not
be contained in a title V permit; and
(12) 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.
Designated representative shall have the meaning given to it in
section 402(26) of the Act and the regulations promulgated thereunder.
Draft permit means the version of a permit for which the permitting
authority offers public participation under Sec. 70.7(h) or affected
State review under Sec. 70.8 of this part.
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.
The EPA or the Administrator means the Administrator of the EPA or
his designee.
Final permit means the version of a part 70 permit issued by the
permitting authority that has completed all review procedures required
by Secs. 70.7 and 70.8 of this part.
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 70 permit that meets the requirements of
Sec. 70.6(d).
Major source means any stationary source (or 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
and that are described in paragraph (1), (2), or (3) of this definition.
For the purposes of defining ``major source,'' 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.
(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
which has been listed pursuant to section 112(b) of the Act, 25 tpy or
more of any combination of such hazardous air 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
[[Page 88]]
(ii) For radionuclides, ``major source'' shall have the meaning
specified by the Administrator by rule.
(2) A major stationary source of air pollutants, as defined in
section 302 of the Act, that directly emits or has the potential to
emit, 100 tpy or more of any air pollutant (including any major source
of fugitive emissions of any such pollutant, as determined by rule by
the Administrator). The fugitive emissions of a stationary source shall
not be considered in determining whether it is a major stationary source
for the purposes of section 302(j) of the Act, 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 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 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 (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:
(A) That are classified as ``serious,'' and
(B) 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.
Part 70 permit or permit (unless the context suggests otherwise)
means any permit or group of permits covering a part 70 source that is
issued, renewed, amended, or revised pursuant to this part.
Part 70 program or State program means a program approved by the
Administrator under this part.
Part 70 source means any source subject to the permitting
requirements of
[[Page 89]]
this part, as provided in Sec. Sec. 70.3(a) and 70.3(b) of this part.
Permit modification means a revision to a part 70 permit that meets
the requirements of Sec. 70.7(e) of this part.
Permit program costs means all reasonable (direct and indirect)
costs required to develop and administer a permit program, as set forth
in Sec. 70.9(b) of this part (whether such costs are incurred by the
permitting authority or other State or local agencies that do not issue
permits directly, but that support permit issuance or administration).
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 part.
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. 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 the regulations promulgated thereunder.
Proposed permit means the version of a permit that the permitting
authority proposes to issue and forwards to the Administrator for review
in compliance with Sec. 70.8.
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 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 presumptive fee calculation), which is used
only for purposes of Sec. 70.9(b)(2), 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 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:
[[Page 90]]
(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 representatives 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 in so far as actions, standards,
requirements, or prohibitions under title IV of the Act or the
regulations promulgated thereunder are concerned; and
(ii) The designated representative for any other purposes under part
70.
Section 502(b)(10) changes are changes that contravene an express
permit term. Such changes do not include changes that would violate
applicable requirements or contravene federally enforceable permit terms
and conditions that are monitoring (including test methods),
recordkeeping, reporting, or compliance certification requirements.
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.
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.
Whole program means a part 70 permit program, or any combination of
partial programs, that meet all the requirements of these regulations
and cover all the part 70 sources in the entire State. For the purposes
of this definition, the term ``State'' does not include local permitting
authorities, but refers only to the entire State, Commonwealth, or
Territory.
Sec. 70.3 Applicability.
(a) Part 70 sources. A State program with whole or partial approval
under this part must provide for permitting of at least the following
sources:
(1) Any major source;
(2) Any source, including an area source, subject to a standard,
limitation, or other requirement under section 111 of the Act;
(3) Any source, including an area 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 this Act;
(4) Any affected source; and
(5) 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, may be exempted by the State from the
obligation to obtain a part 70 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) In the case of nonmajor sources subject to a standard or other
requirement under either section 111 or section 112 of the Act after
July 21, 1992 publication, the Administrator will determine whether to
exempt any or all such applicable sources from the requirement to obtain
a part 70 permit at
[[Page 91]]
the time that the new standard is promulgated.
(3) Any source listed in paragraph (a) of this section exempt from
the requirement to obtain a permit under this section may opt to apply
for a permit under a part 70 program.
(4) Unless otherwise required by the State to obtain a part 70
permit, the following source categories are exempted from the obligation
to obtain a part 70 permit:
(i) All sources and source categories that would be required to
obtain a permit solely because they are subject to 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 part 61, subpart M--
National Emission Standard for Hazardous Air Pollutants for Asbestos,
Sec. 61.145, Standard for Demolition and Renovation.
(c) Emissions units and part 70 sources. (1) For major sources, the
permitting authority shall include in the permit all applicable
requirements for all relevant emissions units in the major source.
(2) For any nonmajor source subject to the part 70 program under
paragraph (a) or (b) of this section, the permitting authority shall
include in the permit all applicable requirements applicable to
emissions units that cause the source to be subject to the part 70
program.
(d) Fugitive emissions. Fugitive emissions from a part 70 source
shall be included in the permit application and the part 70 permit in
the same manner as stack emissions, regardless of whether the source
category in question is included in the list of sources contained in the
definition of major source.
Sec. 70.4 State program submittals and transition.
(a) Date for submittal. Not later than November 15, 1993, the
Governor of each State shall submit to the Administrator for approval a
proposed part 70 program, under State law or under an interstate
compact, meeting the requirements of this part. If part 70 is
subsequently revised such that the Administrator determines that it is
necessary to require a change to an approved State program, the required
revisions to the program shall be submitted within 12 months of the
final changes to part 70 or within such other period as authorized by
the Administrator.
(b) Elements of the initial program submission. Any State that seeks
to administer a program under this part shall submit to the
Administrator a letter of submittal from the Governor or his designee
requesting EPA approval of the program and at least three copies of a
program submission. The submission shall contain the following:
(1) A complete program description describing how the State intends
to carry out its responsibilities under this part.
(2) The regulations that comprise the permitting program, reasonably
available evidence of their procedurally correct adoption, (including
any notice of public comment and any significant comments received on
the proposed part 70 program as requested by the Administrator), and
copies of all applicable State or local statutes and regulations
including those governing State administrative procedures that either
authorize the part 70 program or restrict its implementation. The State
shall include with the regulations any criteria used to determine
insignificant activities or emission levels for purposes of determining
complete applications consistent with Sec. 70.5(c) of this part.
(3) A legal opinion from the Attorney General for the State, or the
attorney for those State, local, or interstate air pollution control
agencies that have independent legal counsel, stating that the laws of
the State, locality, or interstate compact provide adequate authority to
carry out all aspects of the program. This statement shall include
citations to the specific states, administrative regulations, and, where
appropriate, judicial decisions that demonstrate adequate authority.
State statutes and regulations cited by the State Attorney General or
independent legal counsel shall be in the form of lawfully adopted State
states and regulations at the time the statement is signed and shall be
fully effective by
[[Page 92]]
the time the program is approved. To qualify as ``independent legal
counsel,'' the attorney signing the statement required by this section
shall have full authority to independently represent the State agency in
court on all matters pertaining to the State program. The legal opinion
shall also include a demonstration of adequate legal authority to carry
out the requirements of this part, including authority to carry out each
of the following:
(i) Issue permits and assure compliance with each applicable
requirement and requirement of this part by all part 70 sources.
(ii) Incorporate monitoring, recordkeeping, reporting, and
compliance certification requirements into part 70 permits consistent
with Sec. 70.6.
(iii) Issue permits for a fixed term of 5 years in the case of
permits with acid rain provisions and issue all other permits for a
period not to exceed 5 years, except for permits issued for solid waste
incineration units combusting municipal waste subject to standards under
section 129(e) of the Act.
(iv) 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 review such permits at least every 5
years. No permit for a solid waste incineration unit may be issued by an
agency, instrumentality or person that is also responsible, in whole or
in part, for the design and construction or operation of the unit.
(v) Incorporate into permits all applicable requirements and
requirements of this part.
(vi) Terminate, modify, or revoke and reissue permits for cause.
(vii) Enforce permits, permit fee requirements, and the requirement
to obtain a permit, as specified in Sec. 70.11.
(viii) Make available to the public any permit application,
compliance plan, permit, and monitoring and compliance, certification
report pursuant to section 503(e) of the Act, except for information
entitled to confidential treatment pursuant to section 114(c) of the
Act. The contents of a part 70 permit shall not be entitled to
protection under section 115(c) of the Act.
(ix) Not issue a permit if the Administrator timely objects to its
issuance pursuant to Sec. 70.8(c) of this part or, if the permit has not
already been issued, to Sec. 70.8(d) of this part.
(x) Provide an opportunity for judicial review in State court of the
final permit action by the applicant, any person who participated in the
public participation process provided pursuant to Sec. 70.7(h) of this
part, and any other person who could obtain judicial review of such
actions under State laws.
(xi) Provide that, solely for the purposes of obtaining judicial
review in State court for failure to take final action, final permit
action shall include the failure of the permitting authority to take
final action on an application for a permit, permit renewal, or permit
revision within the time specified in the State program. If the State
program allows sources to make changes subject to post hoc review [as
set forth in Secs. 70.7(e)(2) and (3) of this part], the permitting
authority's failure to take final action within 90 days of receipt of an
application requesting minor permit modification procedures (or 180 days
for modifications subject to group processing requirements) must be
subject to judicial review in State court.
(xii) Provide that the opportunity for judicial review described in
paragraph (b)(3)(x) of this section shall be the exclusive means for
obtaining judicial review of the terms and conditions of permits, and
require that such petitions for judicial review must be filed no later
than 90 days after the final permit action, or such shorter time as the
State shall designate. Notwithstanding the preceding requirement,
petitions for judicial review of final permit actions can be filed after
the deadline designated by the State, only if they are based solely on
grounds arising after the deadline for judicial review. Such petitions
shall be filed no later than 90 days after the new grounds for review
arise or such shorter time as the State shall designate. If the final
permit action being challenged is the permitting authority's failure to
take final action, a petition for judicial review may be filed any time
before the permitting authority
[[Page 93]]
denies the permit or issues the final permit.
(xiii) Ensure that the authority of the State/local permitting
Agency is not used to modify the acid rain program requirements.
(4) Relevant permitting program documentation not contained in the
State regulations, including the following:
(i) Copies of the permit form(s), application form(s), and reporting
form(s) the State intends to employ in its program; and
(ii) Relevant guidance issued by the State to assist in the
implementation of its permitting program, including criteria for
monitoring source compliance (e.g., inspection strategies).
(5) A complete description of the State's compliance tracking and
enforcement program or reference to any agreement the State has with EPA
that provides this information.
(6) A showing of adequate authority and procedures to determine
within 60 days of receipt whether applications (including renewal
applications) are complete, to request such other information as needed
to process the application, and to take final action on complete
applications within 18 months of the date of their submittal, except for
initial permit applications, for which the permitting authority may take
up to 3 years from the effective date of the program to take final
action on the application, as provided for in the transition plan.
(7) A demonstration, consistent with Sec. 70.9, that the permit fees
required by the State program are sufficient to cover permit program
costs.
(8) A statement that adequate personnel and funding have been made
available to develop, administer, and enforce the program. This
statement shall include the following:
(i) A description in narrative form of the scope, structure,
coverage, and processes of the State program.
(ii) A description of the organization and structure of the agency
or agencies that will have responsibility for administering the program,
including the information specified in this paragraph. If more than one
agency is responsible for administration of a program, the
responsibilities of each agency must be delineated, their procedures for
coordination must be set forth, and an agency shall be designated as a
``lead agency'' to facilitate communications between EPA and the other
agencies having program responsibility.
(iii) A description of the agency staff who will carry out the State
program, including the number, occupation, and general duties of the
employees. The State need not submit complete job descriptions for every
employee carrying out the State program.
(iv) A description of applicable State procedures, including
permitting procedures and any State administrative or judicial review
procedures.
(v) An estimate of the permit program costs for the first 4 years
after approval, and a description of how the State plans to cover those
costs.
(9) A commitment from the State to submit, at least annually to the
Administrator, information regarding the State's enforcement activities
including, but not limited to, the number of criminal and civil,
judicial and administrative enforcement actions either commenced or
concluded; the penalties, fines, and sentences obtained in those
actions; and the number of administrative orders issued.
(10) A requirement under State law that, if a timely and complete
application for a permit renewal is submitted, consistent with
Sec. 70.5(a)(2), but the State has failed to issue or deny the renewal
permit before the end of the term of the previous permit, then:
(i) The permit shall not expire until the renewal permit has been
issued or denied and any permit shield that may be granted pursuant to
Sec. 70.6(f) may extend beyond the original permit term until renewal;
or
(ii) All the terms and conditions of the permit including any permit
shield that may be granted pursuant to Sec. 70.6(f) shall remain in
effect until the renewal permit has been issued or denied.
(11) A transition plan providing a schedule for submittal and final
action on initial permit applications for all part 70 sources. This plan
shall provide that:
(i) Submittal of permit applications by all part 70 sources
(including any sources subject to a partial or interim program) shall
occur within 1 year
[[Page 94]]
after the effective date of the permit program;
(ii) 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;
(iii) Any complete permit application containing an early reduction
demonstration under section 112(i)(5) of the Act shall be acted on
within 9 months of receipt of the complete application; and
(iv) Submittal of permit applications and the permitting of affected
sources shall occur in accordance with the deadlines in title IV of the
Act and the regulations promulgated thereunder.
(12) Provisions consistent with paragraphs (b)(12)(i) through (iii)
of this section to allow changes within a permitted facility without
requiring a permit revision, if the changes are not modifications under
any provision of title I of the Act and the changes do not exceed the
emissions allowable under the permit (whether expressed therein as a
rate of emissions or in the terms of total emissions): Provided, That
the facility provides the Administrator and the permitting authority
with written notification as required below in advance of the proposed
changes, which shall be a minimum of 7 days, unless the permitting
authority provides in its regulations a different time frame for
emergencies. The source, permitting authority, and EPA shall attach each
such notice to their copy of the relevant permit. The following
provisions implement this requirement of an approvable part 70 permit
program:
(i) The program shall allow permitted sources to make section
502(b)(10) 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).
(A) For each such change, the written notification required above
shall include a brief description of the change within the permitted
facility, the date on which the change will occur, any change in
emissions, and any permit term or condition that is no longer applicable
as a result of the change.
(B) The permit shield described in Sec. 70.6(f) of this part shall
not apply to any change made pursuant to this paragraph (b)(12)(i) of
this section.
(ii) The program may provide for permitted sources to trade
increases and decreases in emissions in the permitted facility, where
the applicable implementation plan provides for such emissions trades
without requiring a permit revision and based on the 7-day notice
prescribed in this paragraph (b)(12)(ii) of this section. This provision
is available in those cases where the permit does not already provide
for such emissions trading.
(A) Under this paragraph (b)(12)(ii) 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.
(B) The permit shield described in Sec. 70.6(f) of this part shall
not extend to any change made under this paragraph (b)(12)(ii) of this
section. Compliance with the permit requirements that the source will
meet using the emissions trade shall be determined according to
requirements of the applicable implementation plan authorizing the
emissions trade.
(iii) The program shall require the permitting authority, if a
permit applicant requests it, to issue permits that contain terms and
conditions, including all terms required under Sec. 70.6 (a) and (c) of
this part to determine compliance, allowing for the trading of emissions
increases and decreases in the permitted facility solely for the purpose
of complying with a federally-
[[Page 95]]
enforceable emissions cap that is established in the permit independent
of otherwise applicable requirements. The permit applicant shall include
in its application proposed replicable procedures and permit terms that
ensure the emissions trades are quantifiable and enforceable. The
permitting authority shall not be required to include in the emissions
trading provisions any emissions units for which emissions are not
quantifiable or for which there are no replicable procedures to enforce
the emissions trades. The permit shall also require compliance with all
applicable requirements.
(A) Under this paragraph (b)(12)(iii) 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.
(B) The permit shield described in Sec. 70.6(f) of this part may
extend to terms and conditions that allow such increases and decreases
in emissions.
(13) Provisions for adequate, streamlined, and reasonable procedures
for expeditious review of permit revisions or modifications. The program
may meet this requirement by using procedures that meet the requirements
of Sec. 70.7(e) or that are substantially equivalent to those provided
in Sec. 70.7(e) of this part.
(14) If a State allows changes that are not addressed or prohibited
by the permit, other than those described in paragraph (b)(15) of this
section, to be made without a permit revision, provisions meeting the
requirements of paragraphs (b)(14) (i) through (iii) of this section.
Although a State may, as a matter of State law, prohibit sources from
making such changes without a permit revision, any such prohibition
shall not be enforceable by the Administrator or by citizens under the
Act unless the prohibition is required by an applicable requirement. Any
State procedures implementing such a State law prohibition must include
the requirements of paragraphs (b)(14) (i) through (iii) of this
section.
(i) Each such change shall meet all applicable requirements and
shall not violate any existing permit term or condition.
(ii) Sources must provide contemporaneous written notice to the
permitting authority and EPA of each such change, except for changes
that qualify as insignificant under the provisions adopted pursuant to
Sec. 70.5(c) of this part. Such written notice shall describe each such
change, including the date, any change in emissions, pollutants emitted,
and any applicable requirement that would apply as a result of the
change.
(iii) The change shall not qualify for the shield under Sec. 70.6(f)
of this part.
(iv) The permittee shall keep a record describing changes made at
the source that result in emissions of a regulated air pollutant subject
to an applicable requirement, but not otherwise regulated under the
permit, and the emissions resulting from those changes.
(15) Provisions prohibiting sources from making, without a permit
revision, changes that are not addressed or prohibited by the part 70
permit, if such changes are subject to any requirements under title IV
of the Act or are modifications under any provision of title I of the
Act.
(16) Provisions requiring the permitting authority to implement the
requirements of Secs. 70.6 and 70.7 of this part.
(c) Partial programs. (1) The EPA may approve a partial program that
applies to all part 70 sources within a limited geographic area (e.g., a
local agency program covering all sources within the agency's
jurisdiction). To be approvable, any partial program must, at a minimum,
ensure compliance with all of the following applicable requirements, as
they apply to the sources covered by the partial program:
(i) All requirements of title V of the Act and of part 70;
(ii) All applicable requirements of title IV of the Act and
regulations promulgated thereunder which apply to affected sources; and
(iii) All applicable requirements of title I of the Act, including
those established under sections 111 and 112 of the Act.
(2) Any partial permitting program, such as that of a local air
pollution control agency, providing for the
[[Page 96]]
issuance of permits by a permitting authority other than the State,
shall be consistent with all the elements required in paragraphs (b) (1)
through (16) of this section.
(3) Approval of any partial program does not relieve the State from
its obligation to submit a whole program or from application of any
sanctions for failure to submit a fully-approvable whole program.
(4) Any partial program may obtain interim approval under paragraph
(d) of this section if it substantially meets the requirements of this
paragraph (c) of this section.
(d) Interim approval. (1) If a program (including a partial permit
program) submitted under this part substantially meets the requirements
of this part, but is not fully approvable, the Administrator may be rule
grant the program interim approval.
(2) Interim approval shall expire on a date set by the Administrator
(but not later than 2 years after such approval unless a longer period
of time up to 10 months is provided on an individual basis by the
Administrator through rulemaking), and may not be renewed.
Notwithstanding the previous sentence, the Administrator may, through
rulemaking, provide for a longer period of time on an individual basis,
but only once per State, as necessary to allow for a State to submit one
set of program changes addressing both interim approval deficiencies and
program changes necessary to comport with the next revision to Sec. 70.7
that is made after [date of publication]. Any longer period of time
provided by the Administrator shall not exceed 2 years after publication
in the Federal Register of that revision. Sources shall become subject
to the program according to the schedule approved in the State program.
Permits granted under an interim approval shall be fully effective and
expire at the end of their fixed term, unless renewed under a part 70
program.
(3) The EPA may grant interim approval to any program if it meets
each of the following minimum requirements and otherwise substantially
meets the requirements of this part:
(i) Adequate fees. The program must provide for collecting permit
fees adequate for it to meet the requirements of Sec. 70.9 of this part.
(ii) Applicable requirements. (A) The program must provide for
adequate authority to issue permits that assure compliance with the
requirements of paragraph (c)(1) of this section for those major sources
covered by the program.
(B) Notwithstanding paragraph (d)(3)(ii)(A) of this section, where a
State or local permitting authority lacks adequate authority to issue or
revise permits that assure compliance with applicable requirements
established exclusively through an EPA-approved minor NSR program, EPA
may grant interim approval to the program upon a showing by the
permitting authority of compelling reasons which support the interim
approval.
(C) Any part 70 permit issued during an interim approval granted
under paragraph (d)(3)(ii)(B) of this section that does not incorporate
minor NSR requirements shall:
(1) Note this fact in the permit;
(2) Indicate how citizens may obtain access to excluded minor NSR
permits;
(3) Provide a cross reference, such as a listing of the permit
number, for each minor NSR permit containing an excluded minor NSR term;
and
(4) State that the minor NSR requirements which are excluded are not
eligible for the permit shield under Sec. 70.6(f).
(D) A program receiving interim approval for the reason specified in
(d)(3)(ii)(B) of this section must, upon or before granting of full
approval, institute proceedings to reopen part 70 permits to incorporate
excluded minor NSR permits as terms of the part 70 permits, as required
by Sec. 70.7(f)(1)(iv). Such reopening need not follow full permit
issuance procedures nor the notice requirement of Sec. 70.7(f)(3), but
may instead follow the permit revision procedure in effect under the
State's approved part 70 program for incorporation of minor NSR permits.
(iii) Fixed term. The program must provide for fixed permit terms,
consistent with paragraphs (b)(3) (iii) and (iv) of this section.
(iv) Public participation. The program must provide for adequate
public notice of and an opportunity for public
[[Page 97]]
comment and a hearing on draft permits and revisions, except for
modifications qualifying for minor permit modification procedures under
Sec. 70.7(e) of this part.
(v) EPA and affected State review. The program must allow EPA an
opportunity to review each proposed permit, including permit revisions,
and to object to its issuance consistent with Sec. 70.8(c) of this part.
The program must provide for affected State review consistent with
Sec. 70.8(b) of this part.
(vi) Permit issuance. The program must provide that the proposed
permit will not be issued if EPA objects to its issuance.
(vii) Enforcement. The program must contain authority to enforce
permits, including the authority to assess penalties against sources
that do not comply with their permits or with the requirement to obtain
a permit.
(viii) Operational flexibility. The program must allow changes
within a permitted facility without requiring a permit revision, if the
changes are not modifications under any provision of title I of the act
and the changes do not exceed the emissions allowable under the permit,
consistent with paragraph (b)(12) of this section.
(ix) Streamlined procedures. The program must provide for
streamlined procedures for issuing and revising permits and determining
expeditiously after receipt of a permit application or application for a
permit revision whether such application is complete.
(x) Permit application. The program submittal must include copies of
the permit application and reporting form(s) that the State will use in
implementing the interim program.
(xi) Alternative scenarios. The program submittal must include
provisions to insure that alternate scenarios requested by the source
are included in the part 70 permit pursuant to Sec. 70.6(a)(9) of this
part.
(e) EPA review of permit program submittals. Within 1 year after
receiving a program submittal, the Administrator shall approve or
disapprove the program, in whole or in part, by publishing a notice in
the Federal Register. Prior to such notice, the Administrator shall
provide an opportunity for public comment on such approval or
disapproval. Any EPA action disapproving a program, in whole or in part,
shall include a statement of the revisions or modifications necessary to
obtain full approval. The Administrator shall approve State programs
that conform to the requirements of this part.
(1) Within 60 days of receipt by EPA of a State program submission,
EPA will notify the State whether its submission is complete enough to
warrant review by EPA for either full, partial, or interim approval. If
EPA finds that a State's submission is complete, the 1-year review
period (i.e., the period of time allotted for formal EPA review of a
proposed State program) shall be deemed to have begun on the date of
receipt of the State's submission. If EPA finds that a State's
submission is incomplete, the 1-year review period shall not begin until
all the necessary information is received by EPA.
(2) If the State's submission is materially changed during the 1-
year review period, the Administrator may extend the review period for
no more than 1 year following receipt of the revised submission.
(3) In any notice granting interim or partial approval, the
Administrator shall specify the changes or additions that must be made
before the program can receive full approval and the conditions for
implementation of the program until that time.
(f) State response to EPA review of program--(1) Disapproval. The
State shall submit to EPA program revisions or modifications required by
the Administrator's action disapproving the program, or any part
thereof, within 180 days of receiving notification of the disapproval.
(2) Interim approval. The State shall submit to EPA changes to the
program addressing the deficiencies specified in the interim approval no
later than 6 months prior to the expiration of the interim approval.
(g) Effective date. The effective date of a part 70 program,
including any partial or interim program approved under this part, shall
be the effective date of approval by the Administrator.
(h) Individual permit transition. Upon approval of a State program,
the Administrator shall suspend the issuance
[[Page 98]]
of Federal permits for those activities subject to the approved State
program, except that the Administrator will continue to issue phase I
acid rain permits. After program approval, EPA shall retain jurisdiction
over any permit (including any general permit) that it has issued unless
arrangements have been made with the State to assume responsibility for
these permits. Where EPA retains jurisdiction, it will continue to
process permit appeals and modification requests, to conduct
inspections, and to receive and review monitoring reports. If any permit
appeal or modification request is not finally resolved when the
federally-issued permit expires, EPA may, with the consent of the State,
retain jurisdiction until the matter is resolved. Upon request by a
State, the Administrator may delegate authority to implement all or part
of a permit issued by EPA, if a part 70 program has been approved for
the State. The delegation may include authorization for the State to
collect appropriate fees, consistent with Sec. 70.9 of this part.
(i) Program revisions. Either EPA or a State with an approved
program may initiate a program revision. Program revision may be
necessary when the relevant Federal or State statutes or regulations are
modified or supplemented. The State shall keep EPA apprised of any
proposed modifications to its basic statutory or regulatory authority or
procedures.
(1) If the Administrator determines pursuant to Sec. 70.10 of this
part that a State is not adequately administering the requirements of
this part, or that the State's permit program is inadequate in any other
way, the State shall revise the program or its means of implementation
to correct the inadequacy. The program shall be revised within 180 days,
or such other period as the Administrator may specify, following
notification by the Administrator, or within 2 years if the State
demonstrates that additional legal authority is necessary to make the
program revision.
(2) Revision of a State program shall be accomplished as follows:
(i) The State shall submit a modified program description, Attorney
General's statement, or such other documents as EPA determines to be
necessary.
(ii) After EPA receives a proposed program revision, it will publish
in the Federal Register a public notice summarizing the proposed change
and provide a public comment period of at least 30 days.
(iii) The Administrator shall approve or disapprove program
revisions based on the requirements of this part and of the Act.
(iv) A program revision shall become effective upon the approval of
the Administrator. Notice of approval of any substantial revision shall
be published in the Federal Register. Notice of approval of
nonsubstantial program revisions may be given by a letter from the
Administrator to the Governor or a designee.
(v) The Governor of any State with an approved part 70 program shall
notify EPA whenever the Governor proposes to transfer all or part of the
program to any other agency, and shall identify any new division of
responsibilities among the agencies involved. The new agency is not
authorized to administer the program until the revision has been
approved by the Administrator under this paragraph.
(3) Whenever the Administrator has reason to believe that
circumstances have changed with respect to a State program, he may
request, and the State shall provide, a supplemental Attorney General's
statement, program description, or such other documents or information
as he determines are necessary.
(j) Sharing of information. (1) Any information obtained or used in
the administration of a State program shall be available to EPA upon
request without restriction and in a form specified by the
Administrator, including computer-readable files to the extent
practicable. If the information has been submitted to the State under a
claim of confidentiality, the State may require the source to submit
this information to the Administrator directly. Where the State submits
information to the Administrator under a claim of confidentiality, the
State shall submit that claim to EPA when providing information to EPA
under this section. Any information obtained from a State
[[Page 99]]
or part 70 source accompanied by a claim of confidentiality will be
treated in accordance with the regulations in part 2 of this chapter.
(2) The EPA will furnish to States with approved programs the
information in its files that the State needs to implement its approved
program. Any such information submitted to EPA under a claim of
confidentiality will be subject to the regulations in part 2 of this
chapter.
(k) Administration and enforcement. Any State that fails to adopt a
complete, approvable part 70 program, or that EPA determines is not
adequately administering or enforcing such program shall be subject to
certain Federal sanctions as set forth in Sec. 70.10 of this part.
[57 FR 32295, July 21, 1992, as amended at 61 FR 31448, June 20, 1996;
61 FR 56370, Oct. 31, 1996]
Sec. 70.5 Permit applications.
(a) Duty to apply. For each part 70 source, the owner or operator
shall submit a timely and complete permit application in accordance with
this section.
(1) Timely application. (i) A timely application for a source
applying for a part 70 permit for the first time is one that is
submitted within 12 months after the source becomes subject to the
permit program or on or before such earlier date as the permitting
authority may establish.
(ii) Part 70 sources required to meet the requirements under section
112(g) of the Act, or to have a permit under the preconstruction review
program approved into the applicable implementation plan under part C or
D of title I of the Act, shall file a complete application to obtain the
part 70 permit or permit revision within 12 months after commencing
operation or on or before such earlier date as the permitting authority
may establish. Where an existing part 70 permit would prohibit such
construction or change in operation, the source must obtain a permit
revision before commencing operation.
(iii) For purposes of permit renewal, a timely application is one
that is submitted at least 6 months prior to the date of permit
expiration, or such other longer time as may be approved by the
Administrator that ensures that the term of the permit will not expire
before the permit is renewed. In no event shall this time be greater
than 18 months.
(iv) 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.
(2) Complete application. The program shall provide criteria and
procedures for determining in a timely fashion when applications are
complete. To be deemed complete, an application must provide all
information required pursuant to paragraph (c) of this section, except
that applications for permit revision need supply such information only
if it is related to the proposed change. Information required under
paragraph (c) of this section must be sufficient to evaluate the subject
source and its application and to determine all applicable requirements.
The program shall require that a responsible official certify the
submitted information consistent with paragraph (d) 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. 70.7(a)(4) of this part. 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, it 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. 70.7(b) of
this part, 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.
(3) Confidential information. In the case where a source has
submitted information to the State under a claim of confidentiality, the
permitting authority may also require the source to submit a copy of
such information directly to the Administrator.
[[Page 100]]
(b) 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.
(c) Standard application form and required information. The State
program under this part shall provide for a standard application form or
forms. Information as described below for each emissions unit at a part
70 source shall be included in the application. The Administrator may
approve as part of a State program a list of insignificant activities
and emissions levels which need not be included in permit applications.
However, for insignificant activities which are exempted because of size
or production rate, a list of such insignificant activities must be
included in the application. An application may not omit information
needed to determine the applicability of, or to impose, any applicable
requirement, or to evaluate the fee amount required under the schedule
approved pursuant to Sec. 70.9 of this part. The permitting authority
may use discretion in developing application forms that best meet
program needs and administrative efficiency. The forms and attachments
chosen, however, shall include the elements specified below:
(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 number and names of plant site manager/contact.
(2) A description of the source's processes and products (by
Standard Industrial Classification Code) including any associated with
alternate scenario identified by the source.
(3) The following emission-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 this
paragraph (c) of this section. The permitting authority shall require
additional 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 approved pursuant to Sec. 70.9(b) of this part.
(ii) Identification and description of all points of emissions
described in paragraph (c)(3)(i) of this section in sufficient detail to
establish the basis for fees and applicability of requirements of the
Act.
(iii) Emissions rate in tpy and in such 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.
(vi) Limitations on source operation affecting emissions or any work
practice standards, where applicable, for all regulated pollutants at
the part 70 source.
(vii) Other information required by any applicable requirement
(including information related to stack height limitations developed
pursuant to section 123 of the Act).
(viii) Calculations on which the information in paragraphs (c)(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.
[[Page 101]]
(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. 70.6(a)(9) of this part or to
define permit terms and conditions implementing Sec. 70.4 (b) (12) or
Sec. 70.6 (a) (10) of this part.
(8) A compliance plan for all part 70 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 or 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 with, the applicable requirements on
which it is based.
(iv) A schedule for submission of certified progress reports no less
frequently than every 6 months for sources required to have a schedule
of compliance to remedy a violation.
(v) The compliance plan content requirements specified in this
paragraph shall apply and be included in the acid rain portion of a
compliance plan for an affected source, except as specifically
superseded by regulations promulgated under title IV of the Act with
regard to the schedule and method(s) the source will use to achieve
compliance with the acid rain emissions limitations.
(9) Requirements for compliance certification, including the
following:
(i) A certification of compliance with all applicable requirements
by a responsible official consistent with paragraph (d) 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 submission of compliance certifications during
the permit term, to be submitted no less frequently than annually, or
more frequently 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.
(10) The use of nationally-standardized forms for acid rain portions
of permit applications and compliance plans, as required by regulations
promulgated under title IV of the Act.
(d) Any application form, report, or compliance certification
submitted pursuant to these regulations shall
[[Page 102]]
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. 70.6 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 regulations
promulgated under title IV of the Act, 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 70 source, equivalent to that
contained in the plan, to be made in the permit issuance, renewal, or
significant modification process, and the State elects to use such
process, any 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.
(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.
(3) Monitoring and related recordkeeping and reporting requirements.
(i) Each permit shall contain the following requirements with respect to
monitoring:
(A) All monitoring and analysis procedures or test methods required
under applicable monitoring and testing requirements, including part 64
of this chapter and any other procedures and methods that may be
promulgated pursuant to sections 114(a)(3) or 504(b) of the Act. If more
than one monitoring or testing requirement applies, the permit may
specify a streamlined set of monitoring or testing provisions provided
the specified monitoring or testing is adequate to assure compliance at
least to the same extent as the monitoring or testing applicable
requirements that are not included in the permit as a result of such
streamlining;
(B) 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 (a)(3)(iii) 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 (a)(3)(i)(B) of this section;
and
(C) As necessary, requirements concerning the use, maintenance, and,
where appropriate, installation of monitoring equipment or methods.
(ii) With respect to recordkeeping, the permit shall incorporate all
applicable recordkeeping requirements and require, where applicable, the
following:
(A) Records of required monitoring information that include the
following:
(1) The date, place as defined in the permit, and time of sampling
or measurements;
(2) The date(s) analyses were performed;
[[Page 103]]
(3) The company or entity that performed the analyses;
(4) The analytical techniques or methods used;
(5) The results of such analyses; and
(6) The operating conditions as existing at the time of sampling or
measurement;
(B) 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.
(iii) With respect to reporting, the permit shall incorporate all
applicable reporting requirements and require the following:
(A) Submittal of reports of any required monitoring at least every 6
months. All instances 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. 70.5(d) of this
part.
(B) 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. The permitting authority shall
define ``prompt'' in relation to the degree and type of deviation likely
to occur and the applicable requirements.
(4) A permit condition prohibiting emissions exceeding any
allowances that the source lawfully holds under title IV of the Act or
the regulations promulgated thereunder.
(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 source. The source 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 promulgated under title IV of the
Act.
(5) 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.
(6) Provisions stating the following:
(i) The permittee must comply with all conditions of the part 70
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 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 modified, revoked, reopened, and reissued,
or terminated for cause. The filing of a request by the permittee for a
permit modification, 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 modifying,
revoking and reissuing, or terminating the permit or to determine
compliance with the permit. Upon request, the permittee shall also
furnish to the permitting authority copies of records required to be
kept by the permit or, for information claimed to be confidential, the
permittee may furnish such records directly to the Administrator along
with a claim of confidentiality.
(7) A provision to ensure that a part 70 source pays fees to the
permitting authority consistent with the fee schedule approved pursuant
to Sec. 70.9 of this part.
[[Page 104]]
(8) Emissions trading. A provision stating that no permit revision
shall be required, under any approved economic incentives, marketable
permits, emissions trading and other similar programs or processes for
changes that are provided for in the permit.
(9) 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;
(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.
(10) 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
each emissions trade. Such terms and conditions:
(i) Shall include all terms required under paragraphs (a) and (c) of
this section to determine 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 requirements of this
part.
(b) Federally-enforceable requirements. (1) All terms and conditions
in a part 70 permit, including any provisions designed to limit a
source's potential to emit, are enforceable by the Administrator and
citizens under the Act.
(2) Notwithstanding paragraph (b)(1) of this section, the permitting
authority shall specifically designate as not being federally
enforceable under the Act any terms and conditions included in the
permit that are not required under the Act or under any of its
applicable requirements. Terms and conditions so designated are not
subject to the requirements of Secs. 70.7, 70.8, or of this part, other
than those contained in this paragraph (b) of this section.
(c) Compliance requirements. All part 70 permits shall contain the
following elements with respect to compliance:
(1) Consistent with paragraph (a)(3) of this section, compliance
certification, testing, monitoring, reporting, and recordkeeping
requirements sufficient to assure compliance with the terms and
conditions of the permit. Any document (including reports) required by a
part 70 permit shall contain a certification by a responsible official
that meets the requirements of Sec. 70.5(d) for this part.
(2) Inspection and entry requirements that require that, 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:
(i) Enter upon the permittee's premises where a part 70 source is
located or emissions-related activity is conducted, or where records
must be kept under the conditions of the permit;
(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) 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.
(3) A schedule of compliance consistent with Sec. 70.5(c)(8) of this
part.
(4) Progress reports consistent with an applicable schedule of
compliance and Sec. 70.5(c)(8) of this part to be submitted at least
semiannually, or at a more frequent period if specified in the
applicable requirement or by the permitting authority. Such progress
reports shall contain the following:
(i) 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
[[Page 105]]
(ii) 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.
(5) Requirements for compliance certification with terms and
conditions contained in the permit, including emission limitations,
standards, or work practices. Permits shall include each of the
following:
(i) The frequency (not less than annually or such more frequent
periods as specified in the applicable requirement or by the permitting
authority) of submissions of compliance certifications;
(ii) In accordance with Sec. 70.6(a)(3) of this part, a means for
monitoring the compliance of the source with its emissions limitations,
standards, and work practices;
(iii) A requirement that the compliance certification include all of
the following (provided that the identification of applicable
information may cross-reference the permit or previous reports, as
applicable):
(A) The identification of each term or condition of the permit that
is the basis of the certification;
(B) The identification of the method(s) or other means used by the
owner or operator for determining the compliance status with each term
and condition during the certification period, and whether such methods
or other means provide continuous or intermittent data. Such methods and
other means shall include, at a minimum, the methods and means required
under paragraph (a)(3) of this section. If necessary, the owner or
operator also shall identify any other material information that must be
included in the certification to comply with section 113(c)(2) of the
Act, which prohibits knowingly making a false certification or omitting
material information;
(C) The status of compliance with the terms and conditions of the
permit for the period covered by the certification, based on the method
or means designated in paragraph (c)(5)(iii)(B) of this section. The
certification shall identify each deviation and take it into account in
the compliance certification. The certification shall also identify as
possible exceptions to compliance any periods during which compliance is
required and in which an excursion or exceedance as defined under part
64 of this chapter occurred; and
(D) Such other facts as the permitting authority may require to
determine the compliance status of the source.
(iv) A requirement that all compliance certifications be submitted
to the Administrator as well as to the permitting authority.
(6) Such other provisions as the permitting authority may require.
(d) General permits. (1) The permitting authority may, after notice
and opportunity for public participation provided under Sec. 70.7(h) of
this part, issue a general permit covering numerous similar sources. Any
general permit shall comply with all requirements applicable to other
part 70 permits and shall identify criteria by which sources may qualify
for the general permit. To sources that qualify, the permitting
authority shall grant the conditions and terms of the general permit.
Notwithstanding the shield provisions of paragraph (f) of this section,
the source shall be subject to enforcement action for operation without
a part 70 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.
(2) Part 70 sources that would 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 70 permit consistent with
Sec. 70.5 of this part. The permitting authority may, in the general
permit, provide for applications which deviate from the requirements of
Sec. 70.5 of this part, provided that such applications meet the
requirements of title V of the Act, and include all information
necessary to determine qualification for, and to assure compliance with,
the general permit. Without repeating the public participation
procedures required under Sec. 70.7(h) of this part, the permitting
authority may grant a source's request for authorization to operate
under a general permit, but such a grant shall not be a final permit
action for purposes of judicial review.
[[Page 106]]
(e) 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 include the following:
(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.
(f) Permit shield. (1) Except as provided in this part, the
permitting authority may expressly include in a part 70 permit a
provision stating that compliance with the 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 70 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 or in any part 70 permit shall alter
or affect the following:
(i) The provisions of section 303 of the Act (emergency orders),
including the authority of the Administrator under that section;
(ii) The liability of an owner or operator of a source for any
violation of applicable requirements prior to or at the time of permit
issuance;
(iii) The applicable requirements of the acid rain program,
consistent with section 408(a) of the Act; or
(iv) The ability of EPA to obtain information from a source pursuant
to section 114 of the Act.
(g) 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 (g)(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 (a)(3)(iii)(B) 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.
[[Page 107]]
(5) This provision is in addition to any emergency or upset
provision contained in any applicable requirement.
[57 FR 32295, July 21, 1992, as amended at 62 FR 54946, Oct. 22, 1997]
Sec. 70.7 Permit issuance, renewal, reopenings, and revisions.
(a) Action on application. (1) A permit, permit modification, or
renewal may be issued only if all of the following condition have been
met:
(i) The permitting authority has received a complete application for
a permit, permit modification, or permit renewal, except that a complete
application need not be received before issuance of a general permit
under Sec. 70.6(d) of this part;
(ii) Except for modifications qualifying for minor permit
modification procedures under paragraphs (e) (2) and (3) of this
section, the permitting authority has complied with the requirements for
public participation under paragraph (h) of this section;
(iii) The permitting authority has complied with the requirements
for notifying and responding to affected States under Sec. 70.8(b) of
this part;
(iv) The conditions of the permit provide for compliance with all
applicable requirements and the requirements of this part; and
(v) The Administrator has received a copy of the proposed permit and
any notices required under Secs. 70.8(a) and 70.8(b) of this part, and
has not objected to issuance of the permit under Sec. 70.8(c) of this
part within the time period specified therein.
(2) Except as provided under the initial transition plan provided
for under Sec. 70.4(b)(11) of this part or under regulations promulgated
under title IV of title V of the Act for the permitting of affected
sources under the acid rain program, the program shall provide that the
permitting authority take final action on each permit application
(including a request for permit modification or renewal) within 18
months, or such lesser time approved by the Administrator, after
receiving a complete application.
(3) The program shall also contain reasonable procedures to ensure
priority is given to taking action on applications for construction or
modification under title I, parts C and D of the Act.
(4) 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. For modifications processed
through minor permit modification procedures, such as those in
paragraphs (e) (2) and (3) of this section, the State program need not
require a completeness determination.
(5) 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 EPA
and to any other person who requests it.
(6) The submittal of a complete application shall not affect the
requirement that any source have a preconstruction permit under title I
of the Act.
(b) Requirement for a permit. Except as provided in the following
sentence, Sec. 70.4(b)(12)(i), and paragraphs (e) (2)(v) and (3)(v) of
this section, no part 70 source may operate after the time that it is
required to submit a timely and complete application under an approved
permit program, except in compliance with a permit issued under a part
70 program. The program shall provide that, if a part 70 source submits
a timely and complete application for permit issuance (including for
renewal), the source's failure to have a part 70 permit is not a
violation of this part until the permitting authority takes final action
on the permit application, except as noted in this section. This
protection shall cease to apply if, subsequent to the completeness
determination made pursuant to paragraph (a)(4) of this section, and as
required by Sec. 70.5(a)(2) of this part, 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) The program shall provide
that:
[[Page 108]]
(i) Permits being renewed are subject to the same procedural
requirements, including those for public participation, affected State
and EPA review, that apply to initial permit issuance; and
(ii) 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 Sec. 70.5(a)(1)(iii)
of this part.
(2) If the permitting authority fails to act in a timely way on a
permit renewal, EPA may invoke its authority under section 505(e) of the
Act to terminate or revoke and reissue the permit.
(d) 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 a
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;
(v) Incorporates into the part 70 permit the requirements from
preconstruction review permits authorized under an EPA-approved program,
provided that such a program meets procedural requirements substantially
equivalent to the requirements of Secs. 70.7 and 70.8 of this part that
would be applicable to the change if it were subject to review as a
permit modification, and compliance requirements substantially
equivalent to those contained in Sec. 70.6 of this part; or
(vi) Incorporates any other type of change which the Administrator
has determined as part of the approved part 70 program to be similar to
those in paragraphs (d)(1) (i) through (iv) of this section.
(2) Administrative permit amendments for purposes of the acid rain
portion of the permit shall be governed by regulations promulgated under
title IV of the Act.
(3) Administrative permit amendment procedures. An administrative
permit amendment may be made by the permitting authority consistent with
the following:
(i) The permitting authority shall take no more than 60 days from
receipt of a request for an administrative permit amendment to take
final action on such request, and may incorporate such changes without
providing notice to the public or affected States provided that it
designates any such permit revisions as having been made pursuant to
this paragraph.
(ii) The permitting authority shall submit a copy of the revised
permit to the Administrator.
(iii) The source may implement the changes addressed in the request
for an administrative amendment immediately upon submittal of the
request.
(4) The permitting authority may, upon taking final action granting
a request for an administrative permit amendment, allow coverage by the
permit shield in Sec. 70.6(f) for administrative permit amendments made
pursuant to paragraph (d)(1)(v) of this section which meet the relevant
requirements of Secs. 70.6, 70.7, and 70.8 for significant permit
modifications.
(e) Permit modification. A permit modification is any revision to a
part 70 permit that cannot be accomplished under the program's
provisions for administrative permit amendments under paragraph (d) of
this section. A permit modification for purposes of the acid rain
portion of the permit shall be governed by regulations promulgated under
title IV of the Act.
(1) Program description. The State shall provide adequate,
streamlined, and reasonable procedures for expeditiously processing
permit modifications. The State may meet this obligation by adopting the
procedures set forth below or ones substantially equivalent. The State
may also develop different procedures for different types of
modifications depending on the significance and complexity of the
requested modification, but EPA will not
[[Page 109]]
approve a part 70 program that has modification procedures that provide
for less permitting authority, EPA, or affected State review or public
participation than is provided for in this part.
(2) Minor permit modification procedures--(i) Criteria. (A) Minor
permit modification procedures may be used only for those permit
modifications that:
(1) Do not violate any applicable requirement;
(2) Do not involve significant changes to existing monitoring,
reporting, or recordkeeping requirements in the permit;
(3) Do not require or change a case-by-case determination of an
emission limitation or other standard, or a source-specific
determination for temporary sources of ambient impacts, or a visibility
or increment analysis;
(4) Do not seek to establish or change a permit term or condition
for which there is no corresponding underlying applicable requirement
and that the source has assumed to avoid an applicable requirement to
which the source would otherwise be subject. Such terms and conditions
include:
(A) A federally enforceable emissions cap assumed to avoid
classification as a modification under any provision of title I; and
(B) An alternative emissions limit approved pursuant to regulations
promulgated under section 112(i)(5) of the Act;
(5) Are not modifications under any provision of title I of the Act;
and
(6) Are not required by the State program to be processed as a
significant modification.
(B) Notwithstanding paragraphs (e)(2)(i)(A) and (e)(3)(i) of this
section, minor permit modification procedures may be used for permit
modifications involving the use of economic incentives, marketable
permits, emissions trading, and other similar approaches, to the extent
that such minor permit modification procedures are explicitly provided
for in an applicable implementation plan or in applicable requirements
promulgated by EPA.
(ii) Application. An application requesting the use of minor permit
modification procedures shall meet the requirements of Sec. 70.5(c) of
this part and shall include 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) The source's suggested draft permit;
(C) Certification by a responsible official, consistent with
Sec. 70.5(d), that the proposed modification meets the criteria for use
of minor permit modification procedures and a request that such
procedures be used; and
(D) Completed forms for the permitting authority to use to notify
the Administrator and affected States as required under Sec. 70.8.
(iii) EPA and affected State notification. Within 5 working days of
receipt of a complete permit modification application, the permitting
authority shall meet its obligation under Sec. 70.8 (a)(1) and (b)(1) to
notify the Administrator and affected States of the requested permit
modification. The permitting authority promptly shall send any notice
required under Sec. 70.8(b)(2) to the Administrator.
(iv) Timetable for issuance. The permitting authority may not issue
a final permit modification until after EPA's 45-day review period or
until EPA has notified the permitting authority that EPA will not object
to issuance of the permit modification, whichever is first, although the
permitting authority can approve the permit modification prior to that
time. Within 90 days of the permitting authority's receipt of an
application under minor permit modification procedures or 15 days after
the end of the Administrator's 45-day review period under Sec. 70.8(c),
whichever is later, the permitting authority shall:
(A) Issue the permit modification as proposed;
(B) Deny the permit modification application;
(C) Determine that the requested modification does not meet the
minor permit modification criteria and should be reviewed under the
significant modification procedures; or
(D) Revise the draft permit modification and transmit to the
Administrator the new proposed permit modification as required by
Sec. 70.8(a) of this part.
[[Page 110]]
(v) Source's ability to make change. The State program may allow the
source to make the change proposed in its minor permit modification
application immediately after it files such application. After the
source makes the change allowed by the preceding sentence, and until the
permitting authority takes any of the actions specified in paragraphs
(e)(2)(v) (A) through (C) 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
modify. 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 modify may be enforced against it.
(vi) Permit shield. The permit shield under Sec. 70.6(f) of this
part may not extend to minor permit modifications.
(3) Group processing of minor permit modifications. Consistent with
this paragraph, the permitting authority may modify the procedure
outlined in paragraph (e)(2) of this section to process groups of a
source's applications for certain modifications eligible for minor
permit modification processing.
(i) Criteria. Group processing of modifications may be used only for
those permit modifications:
(A) That meet the criteria for minor permit modification procedures
under paragraph (e)(2)(i)(A) of this section; and
(B) That collectively are below the threshold level approved by the
Administrator as part of the approved program. Unless the State sets an
alternative threshold consistent with the criteria set forth in
paragraphs (e)(3)(i)(B) (1) and (2) of this section, this threshold
shall be 10 percent of the emissions allowed by the permit for the
emissions unit for which the change is requested, 20 percent of the
applicable definition of major source in Sec. 70.2 of this part, or 5
tons per year, whichever is least. In establishing any alternative
threshold, the State shall consider:
(1) Whether group processing of amounts below the threshold levels
reasonably alleviates severe administrative burdens that would be
imposed by immediate permit modification review, and
(2) Whether individual processing of changes below the threshold
levels would result in trivial environmental benefits.
(ii) Application. An application requesting the use of group
processing procedures shall meet the requirements of Sec. 70.5(c) of
this part and shall include 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) The source's suggested draft permit.
(C) Certification by a responsible official, consistent with
Sec. 70.5(d) of this part, that the proposed modification meets the
criteria for use of group processing procedures and a request that such
procedures be used.
(D) A list of the source's other pending applications awaiting group
processing, and a determination of whether the requested modification,
aggregated with these other applications, equals or exceeds the
threshold set under paragraph (e)(3)(i)(B) of this section.
(E) Certification, consistent with Sec. 70.5(d) of this part, that
the source has notified EPA of the proposed modification. Such
notification need only contain a brief description of the requested
modification.
(F) Completed forms for the permitting authority to use to notify
the Administrator and affected States as required under Sec. 70.8 of
this part.
(iii) EPA and affected State notification. On a quarterly basis or
within 5 business days of receipt of an application demonstrating that
the aggregate of a source's pending applications equals or exceeds the
threshold level set under paragraph (e)(3)(i)(B) of this section,
whichever is earlier, the permitting authority promptly shall meet its
obligations under Secs. 70.8 (a)(1) and (b)(1) to notify the
Administrator and affected States of the requested permit modifications.
The permitting authority shall send any notice required under
Sec. 70.8(b)(2) of this part to the Administrator.
[[Page 111]]
(iv) Timetable for issuance. The provisions of paragraph (e)(2)(iv)
of this section shall apply to modifications eligible for group
processing, except that the permitting authority shall take one of the
actions specified in paragraphs (e)(2)(iv) (A) through (D) of this
section within 180 days of receipt of the application or 15 days after
the end of the Administrator's 45-day review period under Sec. 70.8(c)
of this part, whichever is later.
(v) Source's ability to make change. The provisions of paragraph
(e)(2)(v) of this section shall apply to modifications eligible for
group processing.
(vi) Permit shield. The provisions of paragraph (e)(2)(vi) of this
section shall also apply to modifications eligible for group processing.
(4) Significant modification procedures--(i) Criteria. Significant
modification procedures shall be used for applications requesting permit
modifications that do not qualify as minor permit modifications or as
administrative amendments. The State program shall contain criteria for
determining whether a change is significant. 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 significant. 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.
(ii) The State program shall provide that significant permit
modifications shall meet all requirements of this part, including those
for applications, public participation, review by affected States, and
review by EPA, as they apply to permit issuance and permit renewal. The
permitting authority shall design and implement this review process to
complete review on the majority of significant permit modifications
within 9 months after receipt of a complete application.
(f) 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 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 has been extended pursuant to
Sec. 70.4(b)(10) (i) or (ii) of this part.
(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 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 Administrator or the permitting authority 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. Such
reopening shall be made as expeditiously as practicable.
(3) Reopenings under paragraph (f)(1) of this section shall not be
initiated before a notice of such intent is provided to the part 70
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.
(g) Reopenings for cause by EPA. (1) If the Administrator finds that
cause exists to terminate, modify, or revoke and reissue a permit
pursuant to paragraph (f) of this section, the Administrator will notify
the permitting authority and the permittee of such finding in writing.
[[Page 112]]
(2) The permitting authority shall, within 90 days after receipt of
such notification, forward to EPA a proposed determination of
termination, modification, or revocation and reissuance, as appropriate.
The Administrator may extend this 90-day period for an additional 90
days if he finds that a new or revised permit application is necessary
or that the permitting authority must require the permittee to submit
additional information.
(3) The Administrator 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 EPA makes and to terminate,
modify, 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 (g)(2) of this section or fails to
resolve any objection pursuant to paragraph (g)(4) of this section, the
Administrator will terminate, modify, or revoke and reissue the permit
after taking the following actions:
(i) Providing at least 30 days' notice to the permittee in writing
of the reasons for any such action. This notice may be given during the
procedures in paragraphs (g) (1) through (4) of this section.
(ii) Providing the permittee an opportunity for comment on the
Administrator's proposed action and an opportunity for a hearing.
(h) Public participation. Except for modifications qualifying for
minor permit modification procedures, all permit proceedings, including
initial permit issuance, significant modifications, and renewals, shall
provide adequate procedures for public notice including offering an
opportunity for public comment and a hearing on the draft permit. These
procedures shall include the following:
(1) Notice shall be given: by publication in a newspaper of general
circulation in the area where the source is located or in a State
publication designed to give general public notice; to persons on a
mailing list developed by the permitting authority, including those who
request in writing to be on the list; and by other means if necessary to
assure adequate notice to the affected public;
(2) The notice shall identify the affected facility; the name and
address of the permittee; the name and address of the permitting
authority processing the permit; the activity or activities involved in
the permit action; the emissions change involved in any permit
modification; the name, address, and telephone number of a person from
whom interested persons may obtain additional information, including
copies of the permit draft, the application, all relevant supporting
materials, including those set forth in Sec. 70.4(b)(3)(viii) of this
part, and all other materials available to the permitting authority that
are relevant to the permit decision; a brief description of the comment
procedures required by this part; and the time and place of any hearing
that may be held, including a statement of procedures to request a
hearing (unless a hearing has already been scheduled);
(3) The permitting authority shall provide such notice and
opportunity for participation by affected States as is provided for by
Sec. 70.8 of this part;
(4) Timing. The permitting authority shall provide at least 30 days
for public comment and shall give notice of any public hearing at least
30 days in advance of the hearing.
(5) The permitting authority shall keep a record of the commenters
and also of the issues raised during the public participation process so
that the Administrator may fulfill his obligation under section
505(b)(2) of the Act to determine whether a citizen petition may be
granted, and such records shall be available to the public.
Sec. 70.8 Permit review by EPA and affected States.
(a) Transmission of information to the Administrator. (1) The permit
program shall require that the permitting authority provide to the
Administrator a copy of each permit application (including any
application for permit modification), each proposed permit, and each
final part 70 permit. The applicant may be required by the permitting
authority to provide a copy of the
[[Page 113]]
permit application (including the compliance plan) directly to the
Administrator. Upon agreement with the Administrator, the permitting
authority 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.
(2) The Administrator may waive the requirements of paragraphs
(a)(1) and (b)(1) of this section for any category of sources (including
any class, type, or size within such category) other than major sources
according to the following:
(i) By regulation for a category of sources nationwide, or
(ii) At the time of approval of a State program for a category of
sources covered by an individual permitting program.
(3) Each State permitting authority shall keep for 5 years such
records and submit to the Administrator such information as the
Administrator may reasonably require to ascertain whether the State
program complies with the requirements of the Act or of this part.
(b) Review by affected States. (1) The permit program shall provide
that the permitting authority give notice of each draft permit to any
affected State on or before the time that the permitting authority
provides this notice to the public under Sec. 70.7(h) of this part,
except to the extent Sec. 70.7(e) (2) or (3) of this part requires the
timing of the notice to be different.
(2) The permit program shall provide that the permitting authority,
as part of the submittal of the proposed permit to the Administrator [or
as soon as possible after the submittal for minor permit modification
procedures allowed under Sec. 70.7(e) (2) or (3) of this part], shall
notify the Administrator and any affected State 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) EPA objection. (1) The Administrator will object to the issuance
of any proposed permit determined by the Administrator not to be in
compliance with applicable requirements or requirements under this part.
No permit for which an application must be transmitted to the
Administrator under paragraph (a) 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.
(2) Any EPA objection under paragraph (c)(1) of this section shall
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.
(3) Failure of the permitting authority to do any of the following
also shall constitute grounds for an objection:
(i) Comply with paragraphs (a) or (b) of this section;
(ii) Submit any information necessary to review adequately the
proposed permit; or
(iii) Process the permit under the procedures approved to meet
Sec. 70.7(h) of this part except for minor permit modifications.
(4) If the permitting authority fails, within 90 days after the date
of an objection under paragraph (c)(1) 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 the
Federal program promulgated under title V of this Act.
(d) Public petitions to the Administrator. The program shall provide
that, if the Administrator does not object in writing under paragraph
(c) of this section, any person may petition the Administrator within 60
days after the expiration of the Administrator's 45-day review period to
make such objection. Any such petition shall be based only on objections
to the permit that were
[[Page 114]]
raised with reasonable specificity during the public comment period
provided for in Sec. 70.7(h) of this part, 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 EPA objection. If the permitting authority has
issued a permit prior to receipt of an EPA objection under this
paragraph, the Administrator will modify, terminate, or revoke such
permit, and shall do so consistent with the procedures in Sec. 70.7(g)
(4) or (5) (i) and (ii) of this part 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.
(e) Prohibition on default issuance. Consistent with
Sec. 70.4(b)(3)(ix) of this part, for the purposes of Federal law and
title V of the Act, no State program may provide that a part 70 permit
(including a permit renewal or modification) will issue until affected
States and EPA have had an opportunity to review the proposed permit as
required under this section. When the program is submitted for EPA
review, the State Attorney General or independent legal counsel shall
certify that no applicable provision of State law requires that a part
70 permit or renewal be issued after a certain time if the permitting
authority 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.
Sec. 70.9 Fee determination and certification.
(a) Fee Requirement. The State program shall require that the owners
or operators of part 70 sources pay annual fees, or the equivalent over
some other period, that are sufficient to cover the permit program costs
and shall ensure that any fee required by this section will be used
solely for permit program costs.
(b) Fee schedule adequacy. (1) The State program shall establish a
fee schedule that results in the collection and retention of revenues
sufficient to cover the permit program costs. These costs include, but
are not limited to, the costs of the following activities as they relate
to the operating permit program for stationary sources:
(i) Preparing generally applicable regulations or guidance regarding
the permit program or its implementation or enforcement;
(ii) 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;
(iii) General administrative costs of running the permit program,
including the supporting and tracking of permit applications, compliance
certification, and related data entry;
(iv) Implementing and enforcing the terms of any part 70 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;
(v) Emissions and ambient monitoring;
(vi) Modeling, analyses, or demonstrations;
(vii) Preparing inventories and tracking emissions; and
(viii) Providing direct and indirect support to sources under the
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program contained in section 507 of the Act in determining
and meeting their obligations under this part.
(2)(i) The Administrator will presume that the fee schedule meets
the requirements of paragraph (b)(1) of this section if it would result
in the collection and retention of an amount not less than $25 per year
[as adjusted pursuant to the criteria set forth in paragraph (b)(2)(iv)
of this section] times
[[Page 115]]
the total tons of the actual emissions of each regulated pollutant (for
presumptive fee calculation) emitted from part 70 sources.
(ii) The State may exclude from such calculation:
(A) The actual emissions of sources for which no fee is required
under paragraph (b)(4) of this section;
(B) The amount of a part 70 source's actual emissions of each
regulated pollutant (for presumptive fee calculation) that the source
emits in excess of four thousand (4,000) tpy;
(C) A part 70 source's actual emissions of any regulated pollutant
(for presumptive fee calculation), the emissions of which are already
included in the minimum fees calculation; or
(D) The insignificant quantities of actual emissions not required in
a permit application pursuant to Sec. 70.5(c).
(iii) ``Actual emissions'' means the actual rate of emissions in
tons per year of any regulated pollutant (for presumptive fee
calculation) emitted from a part 70 source over the preceding calendar
year or any other period determined by the permitting authority to be
representative of normal source operation and consistent with the fee
schedule approved pursuant to this section. Actual emissions shall be
calculated using the unit's actual operating hours, production rates,
and in-place control equipment, types of materials processed, stored, or
combusted during the preceding calendar year or such other time period
established by the permitting authority pursuant to the preceding
sentence.
(iv) The program shall provide that the $25 per ton per year used to
calculate the presumptive minimum amount to be collected by the fee
schedule, as described in paragraph (b)(2)(i) of this section, shall be
increased each year by the percentage, if any, by which the Consumer
Price Index for the most recent calendar year ending before the
beginning of such year exceeds the Consumer Price Index for the calendar
year 1989.
(A) The Consumer Price Index for any calendar year is the average of
the Consumer Price Index for all-urban consumers published by the
Department of Labor, as of the close of the 12-month period ending on
August 31 of each calendar year.
(B) The revision of the Consumer Price Index which is most
consistent with the Consumer Price Index for the calendar year 1989
shall be used.
(3) The State program's fee schedule may include emissions fees,
application fees, service-based fees or other types of fees, or any
combination thereof, to meet the requirements of paragraph (b)(1) or
(b)(2) of this section. Nothing in the provisions of this section shall
require a permitting authority to calculate fees on any particular basis
or in the same manner for all part 70 sources, all classes or categories
of part 70 sources, or all regulated air pollutants, provided that the
permitting authority collects a total amount of fees sufficient to meet
the program support requirements of paragraph (b)(1) of this section.
(4) Notwithstanding any other provision of this section, during the
years 1995 through 1999 inclusive, no fee for purposes of title V shall
be required to be paid with respect to emissions from any affected unit
under section 404 of the Act.
(5) The State shall provide a detailed accounting that its fee
schedule meets the requirements of paragraph (b)(1) of this section if:
(i) The State sets a fee schedule that would result in the
collection and retention of an amount less than that presumed to be
adequate under paragraph (b)(2) of this section; or
(ii) The Administrator determines, based on comments rebutting the
presumption in paragraph (b)(2) of this section or on his own
initiative, that there are serious questions regarding whether the fee
schedule is sufficient to cover the permit program costs.
(c) Fee demonstration. The permitting authority shall provide a
demonstration that the fee schedule selected will result in the
collection and retention of fees in an amount sufficient to meet the
requirements of this section.
(d) Use of Required Fee Revenue. The Administrator will not approve
a demonstration as meeting the requirements of this section, unless it
contains an initial accounting (and periodic updates as required by the
Administrator) of how required fee revenues
[[Page 116]]
are used solely to cover the costs of meeting the various functions of
the permitting program.
Sec. 70.10 Federal oversight and sanctions.
(a) Failure to submit an approvable program. (1) If a State fails to
submit a fully-approvable whole part 70 program, or a required revision
thereto, in conformance with the provisions of Sec. 70.4, or if an
interim approval expires and the Administrator has not approved a whole
part 70 program:
(i) At any time the Administrator may apply any one of the sanctions
specified in section 179(b) of the Act; and
(ii) Eighteen months after the date required for submittal or the
date of disapproval by the Administrator, the Administrator will apply
such sanctions in the same manner and with the same conditions as are
applicable in the case of a determination, disapproval, or finding under
section 179(a) of the Act.
(2) If full approval of a whole part 70 program has not taken place
within 2 years after the date required for such submission, the
Administrator will promulgate, administer, and enforce a whole program
or a partial program as appropriate for such State.
(b) State failure to administer or enforce. Any State program
approved by the Administrator shall at all times be conducted in
accordance with the requirements of this part and of any agreement
between the State and the Administrator concerning operation of the
program.
(1) Whenever the Administrator makes a determination that a
permitting authority is not adequately administering or enforcing a part
70 program, or any portion thereof, the Administrator will notify the
permitting authority of the determination and the reasons therefore. The
Administrator will publish such notice in the Federal Register.
(2) If, 90 days after issuing the notice under paragraph (c)(1) of
this section, the permitting authority fails to take significant action
to assure adequate administration and enforcement of the program, the
Administrator may take one or more of the following actions:
(i) Withdraw approval of the program or portion thereof using
procedures consistent with Sec. 70.4(e) of this part;
(ii) Apply any of the sanctions specified in section 179(b) of the
Act;
(iii) Promulgate, administer, or enforce a Federal program under
title V of the Act.
(3) Whenever the Administrator has made the finding and issued the
notice under paragraph (c)(1) of this section, the Administrator will
apply the sanctions under section 179(b) of the Act 18 months after that
notice. These sanctions will be applied in the same manner and subject
to the same deadlines and other conditions as are applicable in the case
of a determination, disapproval, or finding under section 179(a) of the
Act.
(4) Whenever the Administrator has made the finding and issued the
notice under paragraph (c)(1) of this section, the Administrator will,
unless the State has corrected such deficiency within 18 months after
the date of such finding, promulgate, administer, and enforce, a whole
or partial program 2 years after the date of such finding.
(5) Nothing in this section shall limit the Administrator's
authority to take any enforcement action against a source for violations
of the Act or of a permit issued under rules adopted pursuant to this
section in a State that has been delegated responsibility by EPA to
implement a Federal program promulgated under title V of the Act.
(6) Where a whole State program consists of an aggregate of partial
programs, and one or more partial programs fails to be fully approved or
implemented, the Administrator may apply sanctions only in those areas
for which the State failed to submit or implement an approvable program.
(c) Criteria for withdrawal of State programs. (1) The Administrator
may, in accordance with the procedures of paragraph (c) of this section,
withdraw program approval in whole or in part whenever the approved
program no longer complies with the requirements of this part, and the
permitting authority fails to take corrective action. Such
circumstances, in whole or in part, include any of the following:
[[Page 117]]
(i) Where the permitting authority's legal authority no longer meets
the requirements of this part, including the following:
(A) The permitting authority fails to promulgate or enact new
authorities when necessary; or
(B) The State legislature or a court strikes down or limits State
authorities to administer or enforce the State program.
(ii) Where the operation of the State program fails to comply with
the requirements of this part, including the following:
(A) Failure to exercise control over activities required to be
regulated under this part, including failure to issue permits;
(B) Repeated issuance of permits that do not conform to the
requirements of this part;
(C) Failure to comply with the public participation requirements of
Sec. 70.7(h) of this part;
(D) Failure to collect, retain, or allocate fee revenue consistent
with Sec. 70.9 of this part; or
(E) Failure in a timely way to act on any applications for permits
including renewals and revisions.
(iii) Where the State fails to enforce the part 70 program
consistent with the requirements of this part, including the following:
(A) Failure to act on violations of permits or other program
requirements;
(B) Failure to seek adequate enforcement penalties and fines and
collect all assessed penalties and fines; or
(C) Failure to inspect and monitor activities subject to regulation.
(d) Federal collection of fees. If the Administrator determines that
the fee provisions of a part 70 program do not meet the requirements of
Sec. 70.9 of this part, or if the Administrator makes a determination
under paragraph (c)(1) of this section that the permitting authority is
not adequately administering or enforcing an approved fee program, the
Administrator may, in addition to taking any other action authorized
under title V of the Act, collect reasonable fees to cover the
Administrator's costs of administering the provisions of the permitting
program promulgated by the Administrator, without regard to the
requirements of Sec. 70.9 of this part.
Sec. 70.11 Requirements for enforcement authority.
All programs to be approved under this part must contain the
following provisions:
(a) Enforcement authority. Any agency administering a program shall
have the following enforcement authority to address violations of
program requirements by part 70 sources:
(1) To restrain or enjoin immediately and effectively any person by
order or by suit in court from engaging in any activity in violation of
a permit that is presenting an imminent and substantial endangerment to
the public health or welfare, or the environment.
(2) To seek injunctive relief in court to enjoin any violation of
any program requirement, including permit conditions, without the
necessity of a prior revocation of the permit.
(3) To assess or sue to recover in court civil penalties and to seek
criminal remedies, including fines, according to the following:
(i) Civil penalties shall be recoverable for the violation of any
applicable requirement; any permit condition; any fee or filing
requirement; any duty to allow or carry out inspection, entry or
monitoring activities or, any regulation or orders issued by the
permitting authority. These penalties shall be recoverable in a maximum
amount of not less than $10,000 per day per violation. State law shall
not include mental state as an element of proof for civil violations.
(ii) Criminal fines shall be recoverable against any person who
knowingly violates any applicable requirement; any permit condition; or
any fee or filing requirement. These fines shall be recoverable in a
maximum amount of not less than $10,000 per day per violation.
(iii) Criminal fines shall be recoverable against any person who
knowingly makes any false material statement, representation or
certification in any form, in any notice or report required by a permit,
or who knowingly renders
[[Page 118]]
inaccurate any required monitoring device or method. These fines shall
be recoverable in a maximum amount of not less than $10,000 per day per
violation.
(b) Burden of proof. The burden of proof and degree of knowledge or
intent required under State law for establishing violations under
paragraph (a)(3) of this section shall be no greater than the burden of
proof or degree of knowledge or intent required under the Act.
(c) Appropriateness of penalties and fines. A civil penalty or
criminal fine assessed, sought, or agreed upon by the permitting
authority under paragraph (a)(3) of this section shall be appropriate to
the violation.
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
This appendix provides information on the approval status of State
and Local operating Permit Programs. An approved State part 70 program
applies to all part 70 sources, as defined in that approved program,
within such State, except for any source of air pollution over which a
federally recognized Indian Tribe has jurisdiction.
Alabama
(a) Alabama Department of Environmental Management: submitted on
December 15, 1993, and supplemented on March 3, 1994; March 18, 1994;
June 5, 1995; July 14, 1995; and August 28, 1995; interim approval
effective on December 15, 1995; interim approval expires June 1, 2000.
(b) City of Huntsville Department of Natural Resources and
Environmental Management: submitted on November 15, 1993, and
supplemented on July 20, 1995; interim approval effective on December
15, 1995; interim approval expires June 1, 2000.
(c) Jefferson County Department of Health: submitted on December 14,
1993, and supplemented on July 14, 1995; interim approval effective on
December 15, 1995; interim approval expires June 1, 2000.
Alaska
(a) Alaska Department of Environmental Conservation: submitted on
May 31, 1995, as supplemented by submittals on August 16, 1995, February
6, 1996, February 27, 1996, July 5, 1996, August 2, 1996, and October
17, 1996; interim approval effective on December 5, 1996; interim
approval expires June 1, 2000.
(b) (Reserved)
Arizona
(a) Arizona Department of Environmental Quality: submitted on
November 15, 1993 and amended on March 14, 1994; May 17, 1994; March 20,
1995; May 4, 1995; July 22, 1996; and August 12, 1996; interim approval
effective on November 29, 1996; interim approval expires June 1, 2000.
(b) Maricopa County Environmental Services Department: submitted on
November 15, 1993 and amended on December 15, 1993; January 13, 1994;
March 9, 1994; and March 21, 1995; July 22, 1996; and August 12, 1996;
interim approval effective on November 29, 1996; interim approval
expires June 1, 2000.
(c) Pima County Department of Environmental Quality:
(1) Submitted on November 15, 1993 and amended on December 15, 1993;
January 27, 1994; April 6, 1994; April 8, 1994; August 14, 1995; July
22, 1996; August 12, 1996; interim approval effective on November 29,
1996; interim approval expires June 1, 2000.
(2) Revisions submitted on January 14, 1997; February 26, 1997; July
17, 1997; July 25, 1997; November 7, 1997; approval effective October
23, 1998; interim approval expires June 1, 2000.
(d) Pinal County Air Quality Control District:
(1) submitted on November 15, 1993 and amended on August 16, 1994;
August 15, 1995; July 22, 1996; and August 12, 1996; interim approval
effective on November 29, 1996; interim approval expires June 1, 2000.
(2) revisions submitted on August 15, 1995; interim approval
effective on December 30, 1996; interim approval expires June 1, 2000.
Arkansas
(a) The ADPCE submitted its Operating Permits program on November 9,
1993, for approval. Interim approval is effective on October 10, 1995.
Interim approval will expire June 1, 2000.
(b) [Reserved]
California
The following district programs were submitted by the California Air
Resources Board on behalf of:
(a) Amador County Air Pollution Control District (APCD) (complete
submittal received on September 30, 1994); interim approval effective on
June 2, 1995; interim approval expires June 1, 2000.
(b) Bay Area Air Quality Management District: Submitted on November
16, 1993, amended on October 27, 1994, and effective as an interim
program on July 24, 1995. Revisions to interim program submitted on
March 23, 1995, and effective on August 22, 1995, unless adverse or
critical comments are received by July 24, 1995. Approval of interim
program, including March 23, 1995, revisions, expires June 1, 2000.
[[Page 119]]
(c) Butte County APCD (complete submittal received on December 16,
1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(d) Calaveras County APCD (complete submittal received on October
31, 1994); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(e) Colusa County APCD (complete submittal received on February 24,
1994); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(f) El Dorado County APCD (complete submittal received on November
16, 1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(g) Feather River Air Quality Management District (AQMD) (complete
submittal received on December 27, 1993); interim approval effective on
June 2, 1995; interim approval expires June 1, 2000.
(h) Glenn County APCD (complete submittal received on December 27,
1993); interim approval effective on August 14, 1995; interim approval
expires June 1, 2000.
(i) Great Basin Unified APCD (complete submittal received on January
12, 1994); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(j) Imperial County APCD (complete submittal received on March 24,
1994); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(k) Kern County APCD (complete submittal received on November 16,
1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(l) Lake County AQMD (complete submittal received on March 15,
1994); interim approval effective on August 14, 1995; interim approval
expires June 1, 2000.
(m) Lassen County APCD (complete submittal received on January 12,
1994); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(n) Mariposa Air Pollution Control District: submitted on March 8,
1995; approval effective on February 5, 1996 unless adverse or critical
comments are received by January 8, 1996. Interim approval expires on
June 1, 2000.
(o) Mendocino County APCD (complete submittal received on December
27, 1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(p) Modoc County APCD (complete submittal received on December 27,
1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(q) Mojave Desert AQMD (complete submittal received on March 10,
1995); interim approval effective on March 6, 1996; interim approval
expires June 1, 2000.
(r) Monterey Bay Unified Air Pollution Control District: submitted
on December 6, 1993, supplemented on February 2, 1994 and April 7, 1994,
and revised by the submittal made on October 13, 1994; interim approval
effective on November 6, 1995; interim approval expires June 1, 2000.
(s) North Coast Unified AQMD (complete submittal received on
February 24, 1994); interim approval effective on June 2, 1995; interim
approval expires June 1, 2000.
(t) Northern Sierra AQMD (complete submittal received on June 6,
1994); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(u) Northern Sonoma County APCD (complete submittal received on
January 12, 1994); interim approval effective on June 2, 1995; interim
approval expires June 1, 2000.
(v) Placer County APCD (complete submittal received on December 27,
1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(w) The Sacramento Metropolitan Air Quality Management District:
(complete submittal received on August 1, 1994); interim approval
effective on September 5, 1995; interim approval expires June 1, 2000.
(x) San Diego Air Pollution Control District: submitted on April 22,
1994 and amended on April 4, 1995 and October 10, 1995; approval
effective on February 5, 1996, unless adverse or critical comments are
received by January 8, 1996. Interim approval expires on June 1, 2000.
(y) San Joaquin Valley Unified APCD (complete submittal received on
July 5 and August 18, 1995); interim approval effective on May 24, 1996;
interim approval expires May 25, 1998. Interim approval expires on June
1, 2000.
(z) San Luis Obispo County APCD (complete submittal received on
November 16, 1995); interim approval effective on December 1, 1995;
interim approval expires June 1, 2000.
(aa) Santa Barbara County Air Pollution Control District (APCD)
submitted on November 15, 1993, as amended March 2, 1994, August 8,
1994, December 8, 1994, June 15, 1995, and September 18, 1997; interim
approval effective on December 1, 1995; interim approval expires on June
1, 2000.
(bb) Shasta County AQMD (complete submittal received on November 16,
1993); interim approval effective on August 14, 1995; interim approval
expires June 1, 2000.
(cc) Siskiyou County APCD (complete submittal received on December
6, 1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(dd) South Coast Air Quality Management District: submitted on
December 27, 1993 and amended on March 6, 1995, April 11, 1995,
September 26, 1995, April 24, 1996, May 6, 1996, May 23, 1996, June 5,
1996 and July 29, 1996; approval effective on March 31, 1997. Interim
approval expires on June 1, 2000.
(ee) Tehama County APCD (complete submittal received on December 6,
1993); interim approval effective on August 14, 1995; interim approval
expires June 1, 2000.
[[Page 120]]
(ff) Tuolumne County APCD (complete submittal received on November
16, 1993); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
(gg) Ventura County Air Pollution Control District (APCD) submitted
on November 16, 1993, as amended December 6, 1993; interim approval
effective on December 1, 1995; interim approval expires June 1, 2000.
(hh) Yolo-Solano AQMD (complete submittal received on October 14,
1994); interim approval effective on June 2, 1995; interim approval
expires June 1, 2000.
Colorado
(a) Colorado Department Health-Air Pollution Control Division:
submitted on November 5, 1993; effective on February 23, 1995; interim
approval expires June 1, 2000.
(b) [Reserved]
Connecticut
(a) Department of Environmental Protection: submitted on September
28, 1995; interim approval effective on April 23, 1997; interim approval
expires June 1, 2000.
(b) [Reserved]
Delaware
(a) Department of Natural Resources and Environmental Control:
submitted on November 15, 1993 and amended on November 22, 1993,
February 9, 1994, May 15, 1995 and September 5, 1995; interim approval
effective on January 3, 1996; interim approval expires June 1, 2000.
(b) [Reserved]
District of Columbia
(a) Environmental Regulation Administration: submitted on January
13, 1994 and March 11, 1994; interim approval effective on September 6,
1995; interim approval expires June 1, 2000.
(b) [Reserved]
Florida
(a) Florida Department of Environmental Protection: submitted on
November 16, 1993, and supplemented on July 8, 1994, November 28, 1994,
December 21, 1994, December 22, 1994, and January 11, 1995; interim
approval effective on October 25, 1995; interim approval expires June 1,
2000.
(b) [Reserved]
Georgia
(a) The Georgia Department of Natural Resources submitted on
November 12, 1993, and supplemented on June 24, 1994; November 14, 1994;
and June 5, 1995; interim approval effective on December 22, 1995;
interim approval expires June 1, 2000.
(b) [Reserved]
Hawaii
(a) Department of Health; submitted on December 20, 1993; effective
on December 1, 1994; interim approval expires June 1, 2000.
(b) [Reserved]
Idaho
(a) Idaho Division of Environmental Quality: submitted on January
20, 1995, and supplemented on July 14, 1995, September 15, 1995, and
January 12, 1996; interim approval effective on January 6, 1997; interim
approval expires June 1, 2000.
(b) Reserved.
Illinois
(a) The Illinois Environmental Protection Agency: submitted on
November 15, 1993; interim approval effective on March 7, 1995; interim
approval expires June 1, 2000.
(b) [Reserved]
Indiana
(a) The Indiana Department of Environmental Management: submitted on
August 10, 1994; interim approval effective on December 14, 1995;
interim approval expires June 1, 2000.
(b) [Reserved]
Iowa
(a) The Iowa Department of Natural Resources submitted on November
15, 1993, and supplemented by correspondence dated March 15, 1994;
August 8, 1994; October 5, 1994; December 6, 1994; December 15, 1994;
February 6, 1995; March 1, 1995; March 23, 1995; and May 26, 1995.
Interim approval effective on October 2, 1995; interim approval expires
October 1, 1998.
(b) The Iowa Department of Natural Resources submitted a revised
workload analysis dated April 3, 1997. This fulfills the final condition
of the interim approval effective on October 2, 1995, and which would
expire on October 1, 1997. The state is hereby granted final full
approval effective September 12, 1997.
Kansas
(a) The Kansas Department of Health and Environment program
submitted on December 12, 1994; April 7 and 17, 1995; November 14, 1995;
and December 13, 1995. Full approval effective on February 29, 1996.
(b) [Reserved]
Kentucky
(a) Kentucky Natural Resources and Environmental Protection Cabinet:
submitted on December 27, 1993, and supplemented on November 15, 1994,
April 14, 1995, May 3, 1995 and May 22, 1995; interim approval effective
on December 14, 1995; interim approval expires on June 1, 2000.
[[Page 121]]
(b) Air Pollution Control District of Jefferson County, Kentucky:
submitted on February 1, 1994, and supplemented on November 15, 1994,
May 3, 1995, July 14, 1995 and February 16, 1996; full approval
effective on April 22, 1996.
Louisiana
(a) The Louisiana Department of Environmental Quality, Air Quality
Division submitted an Operating Permits program on November 15, 1993,
which was revised November 10, 1994, and became effective on October 12,
1995.
(b) [Reserved]
Maine
(a) Department of Environmental Protection: submitted on October 23,
1995; source category-limited interim approval effective on March 24,
1997; source category-limited interim approval expires June 1, 2000.
(b) [Reserved]
Maryland
(a) Maryland Department of the Environment: submitted on May 9,
1995; interim approval effective on August 2, 1996; interim approval
expires June 1, 2000.
(b) Reserved
Massachusetts
(a) Department of Environmental Protection: submitted on April 28,
1995; interim approval effective on May 15, 1996; interim approval
expires June 1, 2000.
(b) [Reserved]
Michigan
(a)(1) Department of Environmental Quality: received on May 16,
1995, July 20, 1995, October 6, 1995, November 7, 1995, and January 8,
1996; interim approval effective on February 10, 1997; interim approval
expires June 1, 2000.
(2) Interim approval revised to provide for a 4 year initial permit
issuance schedule under source category limited (SCL) interim approval,
pursuant to the Department of Environmental Quality's request received
on April 18, 1997. SCL interim approval effective on July 18, 1997.
(b) (Reserved)
Minnesota
(a) Minnesota Pollution Control Agency; submitted on November 15,
1993; effective July 17, 1995; interim approval expires June 1, 2000.
(b) [Reserved]
Mississippi
(a) Department of Environmental Quality: submitted on November 15,
1993; full approval effective on January 27, 1995.
(b) [Reserved]
Missouri
(a) The Missouri Department of Natural Resources program submitted
on January 13, 1995; August 14, 1995; September 19, 1995; and October
16, 1995. Interim approval effective on May 13, 1996. Interim approval
expires on September 13, 1998.
(b) The Missouri Department of Natural Resources program submitted
on January 13, 1995; August 14, 1995; September 19, 1995; October 16,
1995; and August 6, 1996.
Full approval effective June 13, 1997.
(c) The Missouri Department of Natural Resources submitted Missouri
rule 10 CSR 10-6.110, ``Submission of Emission Data, Emission Fees, and
Process Information,'' on February 1, 1996, approval effective September
25, 1997.
Montana
(a) Montana Department of Health and Environmental Sciences--Air
Quality Division: submitted on March 29, 1994; effective on June 12,
1995; interim approval expires June 1, 2000.
(b) [Reserved]
Nebraska; City of Omaha; Lincoln-Lancaster County Health Department
(a) The Nebraska Department of Environmental Quality submitted on
November 15, 1993, supplemented by correspondence dated November 2,
1994, and August 29, 1995, and amended Title V rules submitted June 14,
1995.
(b) Omaha Public Works Department submitted on November 15, 1993,
supplemented by correspondence dated April 18, 1994; April 19, 1994; May
13, 1994; August 12, 1994; and April 13, 1995. A delegation contract
between the state and the city of Omaha became effective on June 6,
1995.
(c) Lincoln-Lancaster County Health Department submitted on November
12, 1993, supplemented by correspondence dated June 23, 1994. Full
approval effective on November 17, 1995.
Nevada
The following district program was submitted by the Nevada Division
of Environmental Protection on behalf of:
(a) Nevada Division of Environmental Protection: submitted on
February 8, 1995; interim approval effective on January 11, 1996;
interim approval expires June 1, 2000.
(b) Washoe County District Health Department: submitted on November
18, 1993; interim approval effective on March 6, 1995; interim approval
expires June 1, 2000.
(c) Clark County Air Quality Management District: submitted on
January 12, 1994 and amended on July 18 and September 21, 1994;
[[Page 122]]
interim approval effective on August 14, 1995; interim approval expires
June 1, 2000.
New Hampshire
(a) Department of Environmental Services: submitted on October 26,
1995; interim approval effective on June 1, 2000.
(b) [Reserved]
New Jersey
(a) The New Jersey Department of Environmental Protection submitted
an operating permit program on November 15, 1993, revised on August 10,
1995, with supplements on August 28, 1995, November 15, 1995, December
4, 1995, and December 6, 1995; interim approval effective on June 17,
1996; interim approval expires June 1, 2000.
(b) The New Jersey State Department of Environmental Protection
submitted an operating permits program revision request on June 11,
1998; interim program revision approval effective on July 6, 1999.
New Mexico
(a) Environment Department; submitted on November 15, 1993;
effective date on December 19, 1994; interim approval expires on October
19, 1997.
(b) City of Albuquerque Environmental Health Department, Air
Pollution Control Division: submitted on April 4, 1994; effective on
March 13, 1995; interim approval expires June 10, 1997.
(c) The New Mexico Environment Department, Air Pollution Control
Bureau submitted an operating permits program on November 15, 1993,
which was revised July 31, 1996, and became effective on December 26,
1996.
(d) The City of Albuquerque, Environmental Health Department,
submitted an operating permits program on April 4, 1994, which was
revised July 31, 1996, and became effective on December 26, 1996.
New York
(a) The New York State Department of Environmental Conservation
submitted an operating permits program on November 12, 1993,
supplemented on June 17, 1996 and June 27, 1996; interim program
approval effective on December 9, 1996; interim program approval expires
June 1, 2000.
(b) [Reserved]
North Carolina
(a) Department of Environment, Health and Natural Resources, Western
North Carolina Regional Air Pollution Control Agency, Forsyth County
Department of Environmental Affairs and the Mecklenburg County
Department of Environmental Protection: submitted on November 12, 1993,
and supplemented on December 17, 1993; February 28, 1994; May 31, 1994;
and August 9, 1995; interim approval effective on December 15, 1995;
interim approval expires June 1, 2000.
(b) [Reserved]
North Dakota
(a) North Dakota State Department of Health and Consolidated
Laboratories--Environmental Health Section: submitted on May 11, 1994;
effective on August 7, 1995; interim approval expires June 1, 2000.
(b) The North Dakota Department of Health, Environmental Health
Section, submitted an operating permits program on May 11, 1994; interim
approval effective on August 7, 1995; revised January 1, 1996, September
1, 1997, September 1, 1998, and August 1, 1999; full approval effective
on August 16, 1999.
Ohio
(a) The Ohio Environmental Protection Agency submitted on July 22,
1994; September 12, 1994; November 21, 1994; December 9, 1994; and
January 5, 1995; full approval effective on October 1, 1995.
(b) [Reserved]
Oklahoma
(a) The Oklahoma Department of Environmental Quality submitted its
operating permits program on January 12, 1994, for approval. Source
category--limited interim approval is effective on March 6, 1996.
Interim approval will expire June 1, 2000.
(b) [Reserved]
Oregon
(a) Oregon Department of Environmental Quality: submitted on
November 15, 1993, as amended on November 15, 1994, and June 30, 1995;
full approval effective on November 27, 1995.
(b) Lane Regional Air Pollution Authority: submitted on November 15,
1993, as amended on November 15, 1994, and June 30, 1995; full approval
effective on November 27, 1995.
Pennsylvania
(a) Pennsylvania Department of Environmental Resources [now known as
the Pennsylvania Department of Environmental Protection]: submitted on
May 18, 1995; full approval effective on August 29, 1996.
(b) (Reserved)
Puerto Rico
(a) The Puerto Rico Environmental Quality Board submitted an
operating permits program on November 15, 1993 with supplements on March
22, 1994 and April 11, 1994 and revised on September 29, 1995; full
approval effective on March 27, 1996.
(b) [Reserved]
[[Page 123]]
Rhode Island
(a) Department of Environmental Management: submitted on June 20,
1995; interim approval effective on July 5, 1996; interim approval
expires June 1, 2000.
(b) [Reserved]
South Carolina
(a) Department of Health and Environmental Control: submitted on
November 12, 1993; full approval effective on July 26, 1995.
(b) [Reserved]
South Dakota
(a) South Dakota Department of Environment and Natural Resources
Division of Environmental Regulation: submitted on November 12, 1993;
effective on April 21, 1995; interim approval expires April 22, 1997.
(b) [Reserved]
Editorial Note: At 61 FR 2722, Jan. 29, 1996, appendix A to part 70
was amended by adding an entry for South Dakota. An entry already exists
for South Dakota in the 1995 edition of this volume.
South Dakota
(a) South Dakota Department of Environment and Natural Resources--
Division of Environmental Regulations: submitted on November 12, 1993;
effective on February 28, 1996.
(b) [Reserved]
Tennessee
(a) Tennessee Department of Environment and Conservation: submitted
on November 10, 1994, and supplemented on December 5, 1994, August 8,
1995, January 17, 1996, January 30, 1996, February 13, 1996, April 9,
1996, June 4, 1996, June 12, 1996, July 3, 1996, and July 15, 1996;
interim approval effective on August 28, 1996; interim approval expires
June 1, 2000.
(b) Chattanooga-Hamilton County Air Pollution Control Bureau,
Hamilton County, State of Tennessee: submitted on November 22, 1993, and
supplemented on January 23, 1995, February 24, 1995, October 13, 1995,
and March 14, 1996; full approval effective on April 25, 1996.
(c) The Knox County Department of Air Pollution Control; submitted
on November 12, 1993, and supplemented on August 24, 1994; January 6 and
19, 1995; February 6, 1995; May 23, 1995; September 18 and 25, 1995; and
March 6, 1996; full approval effective on May 30, 1996, in the Federal
Register.
(d) The Metropolitan Health Department, Metropolitan Govenment of
Nashville-Davidson County; submitted on November 13, 1993, and
supplemented on April 19, 1994; September 27, 1994; December 28, 1994;
and December 28, 1995; full approval effective on March 15, 1996.
(e) Memphis-Shelby County Health Department: submitted on June 26,
1995, and supplemented on August 22, 1995, August 23, 1995, August 24,
1995, January 29, 1996, February 7, 1996, February 14, 1996, March 5,
1996, and April 10, 1996; interim approval effective on August 28, 1996;
interim approval expires June 1, 2000.
Texas
(a) The TNRCC submitted its Operating Permits program on September
17, 1993, and supplemental submittals on October 28, 1993, and November
12, 1993, for approval. Source category-limited interim approval is
effective on July 25, 1996. Interim approval will expire June 1, 2000.
The scope of the approval of the Texas part 70 program excludes all
sources of air pollution over which an Indian Tribe has jurisdiction.
(b) [Reserved]
Utah
(a) Utah Department of Environmental Quality--Division of Air
Quality: submitted on April 14, 1994; effective on July 10, 1995.
(b) [Reserved]
Vermont
(a) Department of Environmental Conservation: submitted on April 28,
1995; interim approval effective on November 1, 1996; interim approval
expires June 1, 2000.
(b) (Reserved)
Virgin Islands
(a) The Virgin Islands Department of Natural Resources submitted an
operating permits program on November 18, 1993 with supplements through
June 9, 1995; interim approval effective on August 30, 1996. Interim
approval will expire June 1, 2000.
(b) (Reserved)
Virginia
(a) The Commonwealth of Virginia's Title V operating permit and fee
program regulations submitted on September 10, 1996, the acid rain
operating permit regulations submitted on September 12, 1996, and the
non-regulatory operating permit program provisions submitted on November
12, 1993, January 14, 1994, January 9, 1995, May 17, 1995, February 6,
1997, and February 27, 1997; interim approval effective on March 12,
1998; interim approval expires on June 1, 2000.
(b) [Reserved]
Washington
(a) Department of Ecology (Ecology): submitted on November 1, 1993;
effective on December 9, 1994; interim approval expires June 1, 2000.
(b) Energy Facility Site Evaluation Council (EFSEC): submitted on
November 1, 1993;
[[Page 124]]
effective on December 9, 1994; interim approval expires June 1, 2000.
(c) Benton County Clean Air Authority (BCCAA): submitted on November
1, 1993 and amended on September 29, 1994 and April 12, 1995; effective
on December 9, 1994; interim approval expires June 1, 2000.
(d) Northwest Air Pollution Authority (NWAPA): submitted on November
1, 1993; effective on December 9, 1994; interim approval expires June 1,
2000.
(e) Olympic Air Pollution Control Authority (OAPCA): submitted on
November 1, 1993; effective on December 9, 1994; interim approval
expires June 1, 2000.
(f) Puget Sound Air Pollution Control Agency (PSAPCA): submitted on
November 1, 1993; effective on December 9, 1994; interim approval
expires June 1, 2000.
(g) Southwest Air Pollution Control Authority (SWAPCA): submitted on
November 1, 1993; effective on December 9, 1994; interim approval
expires June 1, 2000.
(h) Spokane County Air Pollution Control Authority (SCAPCA):
submitted on November 1, 1993; effective on December 9, 1994; interim
approval expires June 1, 2000.
(i) Yakima County Clean Air Authority (YCCAA): submitted on November
1, 1993 and amended on September 29, 1994; effective on December 9,
1994; interim approval expires June 1, 2000.
West Virginia
(a) Department of Commerce, Labor and Environmental Resources:
submitted on November 12, 1993, and supplemented by the Division of
Environmental Protection on August 26 and September 29, 1994; interim
approval effective on December 15, 1995; interim approval expires June
1, 2000.
(b) [Reserved]
Wisconsin
(a) Department of Natural Resources: submitted on January 27, 1994;
interim approval effective on April 5, 1995; interim approval expires
June 1, 2000.
(b) [Reserved]
Wyoming
(a) Department of Environmental Quality: submitted on November 19,
1993; effective on February 21, 1995; interim approval expires June 1,
2000.
(b) The Wyoming Department of Environmental Quality submitted an
operating permits program on November 19, 1993; interim approval
effective on February 21, 1995; revised August 19, 1997; full approval
effective on April 23, 1999.
[59 FR 55820, Nov. 9, 1994]
Editorial Note: For Federal Register citations affecting appendix A
to part 70, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Effective Date Notes: 1. At 64 FR 23777, May 4, 1999, appendix A to
part 70 was amended by adding paragraph (b) in the entry for New Jersey,
effective July 6, 1999.
2. At 64 FR 32436, June 17, 1999, appendix A to part 70 was amended
by adding paragraph (b) in the entry for North Dakota, effective Aug.
16, 1999.
PART 71--FEDERAL OPERATING PERMIT PROGRAMS--Table of Contents
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 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 B--Permits for Early Reductions Sources
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.
Source: 59 FR 59924, Nov. 21, 1994, unless otherwise noted.
Subpart A--Operating Permits
Source: 61 FR 34228, July 1, 1996, unless otherwise noted.
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 Act (42 U.S.C. 7401 et seq.) and defines the requirements
and the corresponding standards and procedures by which the
Administrator will issue
[[Page 125]]
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 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 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.
Affected source shall have the meaning given to it in 40 CFR 72.2.
Affected States are:
(1) All States and areas within Indian country subject to a part 70
or part 71 program whose air quality may be affected and that are
contiguous to the State or the area within Indian country in which the
permit, permit modification, or permit renewal is being proposed; or
that are within 50 miles of the permitted source. A Tribe shall be
treated in the same manner as a State under this paragraph (1) only if
EPA has determined that the Tribe is an eligible Tribe.
(2) The State or area within Indian country subject to a part 70 or
part 71 program in which a part 71 permit, permit modification, or
permit renewal is being proposed. A Tribe shall be treated in the same
manner as a State under this paragraph (2) only if EPA has determined
that the Tribe is an eligible Tribe.
(3) Those areas within the jurisdiction of the air pollution control
agency for the area in which a part 71 permit, permit modification, or
permit renewal is being proposed.
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 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;
(3) Any standard or other requirement under section 111 of the Act,
including section 111(d);
(4) 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;
(5) Any standard or other requirement of the acid rain program under
title IV of the Act or 40 CFR parts 72 through 78;
(6) Any requirements established pursuant to section 114(a)(3) or
504(b) of the Act;
(7) Any standard or other requirement governing solid waste
incineration, under section 129 of the Act;
(8) Any standard or other requirement for consumer and commercial
products, under section 183(e) of the Act;
[[Page 126]]
(9) Any standard or other requirement for tank vessels, under
section 183(f) of the Act;
(10) Any standard or other requirement of the program to control air
pollution from outer continental shelf sources, under section 328 of the
Act;
(11) Any standard or other requirement of the regulations
promulgated at 40 CFR part 82 to protect stratospheric ozone under title
VI of the Act, unless the Administrator has determined that such
requirements need not be contained in a title V permit; and
(12) 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
section 402(26) of the Act and 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.
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.
EPA or the Administrator means the Administrator of the U.S.
Environmental Protection Agency (EPA) or his or her designee.
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 permit means the version of a part 71 permit issued by the
permitting authority that has completed all review procedures required
by Secs. 71.7, 71.8, and 71.11.
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 country means:
(1) 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;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
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.
Major source means any stationary source (or any group of stationary
sources that are located on one or more contiguous or adjacent
properties, and are under common control of the same
[[Page 127]]
person (or persons under common control)), belonging to a single major
industrial grouping and that are described in paragraph (1), (2), or (3)
of this definition. For the purposes of defining ``major source,'' 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.
(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 tpy or more of any hazardous air pollutant which has been
listed pursuant to section 112(b) of the Act, 25 tpy or more of any
combination of such hazardous air pollutants, 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 major source of fugitive emissions of any such
pollutant, as determined by rule by the Administrator). The fugitive
emissions of a stationary source shall not be considered in determining
whether it is a major stationary source for the purposes of section
302(j) of the Act, 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) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
(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
[[Page 128]]
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 (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:
(A) That are classified as ``serious,'' and
(B) 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.
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.
Part 70 program or State program means a 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, as provided in Secs. 70.3(a) and
70.3(b).
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 Secs. 71.3(a) and 71.3(b).
Permit modification m eans a revision to a part 71 permit that meets
the requirements of Sec. 71.7(e).
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).
Permit revision means any permit modification or administrative
permit amendment.
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 authorized by the
Administrator to carry out a permit program under 40 CFR part 70.
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) requirements.
Regulated pollutant (for fee calculation), which is used only for
purposes of
[[Page 129]]
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 insofar as actions, standards,
requirements, or prohibitions under title IV of the Act or 40 CFR parts
72 through 78 are concerned; and
(ii) The designated representative for any other purposes under part
71.
Section 502(b)(10) changes are changes that contravene an express
permit term. Such changes do not include changes that would violate
applicable requirements or contravene federally enforceable permit terms
and conditions that are monitoring (including test methods),
recordkeeping, reporting, or compliance certification requirements.
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.
[61 FR 34228, July 1, 1996, as amended at 64 FR 8262, Feb. 19, 1999]
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;
(2) Any source, including an area source, subject to a standard,
limitation, or other requirement under section 111 of the Act;
(3) Any source, including an area 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 affected source; and
(5) 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
[[Page 130]]
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) In the case of nonmajor sources subject to a standard or other
requirement under either section 111 or 112 of the Act after July 21,
1992 publication, the Administrator will determine whether to exempt any
or all such applicable 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 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.
(c) Emissions units and part 71 sources. (1) For major sources, the
permitting authority shall include in the permit all applicable
requirements for all relevant emissions units in the major source.
(2) For any nonmajor source subject to the part 71 program under
paragraphs (a) or (b) of this section, the permitting authority shall
include in the permit all applicable requirements applicable to
emissions units that cause the source to be subject to the part 71
program.
(d) Fugitive emissions. Fugitive emissions from a part 71 source
shall be included in the permit application and the part 71 permit in
the same manner as stack emissions, regardless of whether the source
category in question is included in the list of sources contained in the
definition of major source.
(e) An owner or operator of a source may submit to the Administrator
a written request for a determination of applicability under this
section.
(1) Request content. The request shall be in writing and include
identification of the source and relevant and appropriate facts about
the source. The request shall meet the requirements of Sec. 71.5(d).
(2) Timing. The request shall be submitted to the Administrator
prior to the issuance (including renewal) of a permit under this part as
a final agency action.
(3) Submission. All submittals under this section shall be made by
the responsible official to the Regional Administrator for the Region in
which the source is located.
(4) Response. The Administrator will issue a written response based
upon the factual submittal meeting the requirements of paragraph (e)(1)
of this section.
[61 FR 34228, July 1, 1996, as amended at 64 FR 8262, Feb. 19, 1999]
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 Indian country) 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 July 31, 1996, 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 July 31, 1996. The effective date
of such a part 71 program is July 31, 1996.
(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
[[Page 131]]
the Administrator by the expiration of the interim approval period or
July 31, 1996, whichever is later. Such a part 71 program shall be
effective upon expiration of the interim approval or July 31, 1996
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 Indian country. The Administrator will
administer and enforce an operating permits program in Indian country,
as defined in Sec. 71.2, when an operating permits program which meets
the requirements of part 70 of this chapter has not been explicitly
granted full or interim approval by the Administrator for Indian
country. For purposes of administering the part 71 program, EPA will
treat areas for which EPA believes the Indian country status is in
question as Indian country.
(1) [Reserved]
(2) The effective date of a part 71 program in Indian country shall
be March 22, 1999.
(3) Notwithstanding paragraph (i)(2) of this section, within 2 years
of the effective date of the part 71 program in Indian country, 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 July 31,
1996.
(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.
[[Page 132]]
(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 July 31,
1996.
(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
permit program in combination with provisions of this part to administer
a Federal program for the State or in Indian country 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 publication
of this part in the Federal Register on July 1, 1996 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 deficiency in the State or Tribal program. The
Administrator may administer and enforce a part 71 program in a State or
within Indian country 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 permits issuance. If a full or
partial part 71 program becomes effective in a State or within Indian
country 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 program. The Administrator may promulgate
a part 71 program in a State or Indian country 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 part 71 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
[[Page 133]]
the remaining portions of the program, the Delegation Agreement referred
to in Sec. 71.10 will define the respective roles of the State or
eligible Tribe and the 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
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(f), 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.
(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
[[Page 134]]
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.
[61 FR 34228, July 1, 1996, as amended at 64 FR 8262, Feb. 19, 1999]
Sec. 71.5 Permit applications.
(a) Duty to apply. For each part 71 source, the owner or operator
shall submit a timely and complete permit application in accordance with
this section.
(1) Timely application. (i) 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 after the
source becomes subject to the permit program or on or before such
earlier date as the permitting authority may establish. Sources required
to submit applications earlier than 12 months after the source becomes
subject to the permit program will be notified of the earlier submittal
date at least 6 months in advance of the date.
(ii) Part 71 sources required to meet the requirements under section
112(g) of the Act, or to have a permit under the preconstruction review
program approved into the applicable implementation plan under part C or
D of title I of the Act, shall file a complete application to obtain the
part 71 permit or permit revision within 12 months after commencing
operation or on or before such earlier date as the permitting authority
may establish. Sources required to submit applications earlier than 12
months after the source becomes subject to the permit program will be
notified of the earlier submittal date at least 6 months in advance of
the date. Where an existing part 70 or 71 permit would prohibit such
construction or change in operation, the source must obtain a permit
revision before commencing operation.
(iii) For purposes of permit renewal, a timely application is one
that is submitted at least 6 months but not more that 18 months prior to
expiration of the part 70 or 71 permit.
(iv) 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.
(2) Complete application. To be deemed complete, an application must
provide all information required pursuant to paragraph (c) of this
section, except that applications for permit revision need supply such
information only if it is related to the proposed change. To be found
complete, an initial or renewal application must remit payment of fees
owed under the fee schedule established pursuant to Sec. 71.9(b).
Information required under paragraph (c) of this section must be
sufficient to evaluate the subject source and its application and to
determine all applicable requirements. A responsible official must
certify the submitted information consistent with paragraph (d) 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)(4). 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, it 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.
(3) Confidential information. An applicant may assert a business
confidentiality claim for information requested by the permitting
authority using procedures found at part 2, subpart B of this chapter.
(b) 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
[[Page 135]]
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.
(c) Standard application form and required information. The
permitting authority shall provide sources a standard application form
or forms. The permitting authority may use discretion in developing
application forms that best meet program needs and administrative
efficiency. The forms and attachments chosen, however, shall include the
elements specified below. An application may not omit information needed
to determine the applicability of, or to impose, any applicable
requirement, or to evaluate the fee amount required under the schedule
established pursuant to Sec. 71.9.
(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 number and names of plant site manager/contact.
(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 this
paragraph (c). The permitting authority shall require additional
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(b).
(ii) Identification and description of all points of emissions
described in paragraph (c)(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 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.
(vi) Limitations on source operation affecting emissions or any work
practice standards, where applicable, for all regulated pollutants at
the part 71 source.
(vii) Other information required by any applicable requirement
(including information related to stack height limitations developed
pursuant to section 123 of the Act).
(viii) Calculations on which the information in paragraphs (c)(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)(9) or to define permit
terms and conditions implementing Sec. 71.6(a)(10) or Sec. 71.6(a)(13).
(8) 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:
[[Page 136]]
(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 with, the applicable requirements on
which it is based.
(iv) A schedule for submission of certified progress reports no less
frequently than every 6 months for sources required to have a schedule
of compliance to remedy a violation.
(v) The compliance plan content requirements specified in this
paragraph shall apply and be included in the acid rain portion of a
compliance plan for an affected source, except as specifically
superseded by regulations promulgated under parts 72 through 78 of this
chapter with regard to the schedule and method(s) the source will use to
achieve compliance with the acid rain emissions limitations.
(9) Requirements for compliance certification, including the
following:
(i) A certification of compliance with all applicable requirements
by a responsible official consistent with paragraph (d) 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 submission of compliance certifications during
the permit term, to be submitted no less frequently than annually, or
more frequently 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.
(10) The use of nationally-standardized forms for acid rain portions
of permit applications and compliance plans, as required by regulations
promulgated under parts 72 through 78 of this chapter.
(11) Insignificant activities and emissions levels. The following
types of insignificant activities and emissions levels need not be
included in permit applications. However, for insignificant activities
which are exempted because of size or production rate, a list of such
insignificant activities must be included in the application. An
application may not omit information needed to determine the
applicability of, or to impose, any applicable requirement, or to
calculate the fee amount required under the schedule established
pursuant to Sec. 71.9 of this part.
(i) Insignificant activities:
(A) Mobile sources;
[[Page 137]]
(B) Air-conditioning units used for human comfort that are not
subject to applicable requirements under title VI of the Act and do not
exhaust air pollutants into the ambient air from any manufacturing or
other industrial process;
(C) Ventilating units used for human comfort that do not exhaust air
pollutants into the ambient air from any manufacturing or other
industrial process;
(D) Heating units used for human comfort that do not provide heat
for any manufacturing or other industrial process;
(E) Noncommercial food preparation;
(F) Consumer use of office equipment and products;
(G) Janitorial services and consumer use of janitorial products; and
(H) Internal combustion engines used for landscaping purposes.
(ii) Insignificant emissions levels. Emissions meeting the criteria
in paragraph (c)(11)(ii)(A) or (c)(11)(ii)(B) of this section need not
be included in the application, 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.
(A) 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 2 tpy.
(B) 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.
(d) 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 78, 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 modification process, and the permitting authority elects to
use such process, any 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.
(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.
(3) Monitoring and related recordkeeping and reporting requirements.
(i)
[[Page 138]]
Each permit shall contain the following requirements with respect to
monitoring:
(A) All monitoring and analysis procedures or test methods required
under applicable monitoring and testing requirements, including part 64
of this chapter and any other procedures and methods that may be
promulgated pursuant to sections 114(a)(3) or 504(b) of the Act. If more
than one monitoring or testing requirement applies, the permit may
specify a streamlined set of monitoring or testing provisions provided
the specified monitoring or testing is adequate to assure compliance at
least to the same extent as the monitoring or testing applicable
requirements that are not included in the permit as a result of such
streamlining;
(B) 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 (a)(3)(iii) 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 (a)(3)(i)(B); and
(C) As necessary, requirements concerning the use, maintenance, and,
where appropriate, installation of monitoring equipment or methods.
(ii) With respect to recordkeeping, the permit shall incorporate all
applicable recordkeeping requirements and require, where applicable, the
following:
(A) Records of required monitoring information that include the
following:
(1) The date, place as defined in the permit, and time of sampling
or measurements;
(2) The date(s) analyses were performed;
(3) The company or entity that performed the analyses;
(4) The analytical techniques or methods used;
(5) The results of such analyses; and
(6) The operating conditions as existing at the time of sampling or
measurement;
(B) 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.
(iii) With respect to reporting, the permit shall incorporate all
applicable reporting requirements and require the following:
(A) Submittal of reports of any required monitoring at least every 6
months. All instances 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(d).
(B) 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:
(1) 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.
(2) For emissions of any regulated air pollutant, excluding those
listed in paragraph (a)(3)(iii)(B)(1) of this section, that continue for
more than two hours in excess of permit requirements, the report must be
made within 48 hours.
[[Page 139]]
(3) For all other deviations from permit requirements, the report
shall be contained in the report submitted in accordance with the
timeframe given in paragraph (a)(3)(iii)(A).
(4) A permit may contain a more stringent reporting requirement than
required by paragraphs (a)(3)(iii)(B)(1), (2), or (3).
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 (a)(3)(iii)(B) (1) through (4) of this section. A
written notice, certified consistent with Sec. 71.5(d), must be
submitted within 10 working days of the occurrence. All deviations
reported under paragraph (a)(3)(iii)(A) of this section must also be
identified in the 6 month report required under paragraph (a)(3)(iii)(A)
of this section.
(C) For purposes of paragraph (a)(3)(iii)(B) of this section,
deviation means any situation in which an emissions unit fails to meet a
permit term or condition. A deviation is not always a violation. A
deviation can be determined by observation or through review of data
obtained from any testing, monitoring, or recordkeeping established in
accordance with paragraphs (a)(3)(i) and (a)(3)(ii) of this section. For
a situation 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:
(1) A situation where emissions exceed an emission limitation or
standard;
(2) A situation where process or emissions control device parameter
values indicate that an emission limitation or standard has not been
met;
(3) A situation 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;
(4) A situation in which an exceedance or an excursion, as defined
in part 64 of this chapter, occurs.
(4) A permit condition prohibiting emissions exceeding any
allowances that the source lawfully holds under 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 source. The source 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.
(5) 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.
(6) Provisions stating the following:
(i) The permittee 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 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 modified, revoked, reopened, and reissued,
or terminated for cause. The filing of a request by the permittee for a
permit modification, 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 modifying,
revoking and reissuing, or terminating the permit or to determine
compliance with the permit. Upon request, the permittee shall also
[[Page 140]]
furnish to the permitting authority copies of records required to be
kept by the permit or, in the case of a program delegated pursuant to
Sec. 71.10, for information claimed to be confidential, the permittee
may furnish such records directly to the Administrator along with a
claim of confidentiality.
(7) A provision to ensure that a part 71 source pays fees to the
Administrator consistent with the fee schedule approved pursuant to
Sec. 71.9.
(8) Emissions trading. A provision stating that no permit revision
shall be required, under any approved economic incentives, marketable
permits, emissions trading and other similar programs or processes for
changes that are provided for in the permit.
(9) 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;
(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.
(10) 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
each emissions trade. Such terms and conditions:
(i) Shall include all terms required under paragraphs (a) and (c) of
this section to determine 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 requirements of this
part.
(11) Permit expiration. A provision to ensure that a part 71 permit
expires upon the earlier occurrence of the following events:
(i) twelve years elapses from the date of issuance to a solid waste
incineration unit combusting municipal waste subject to standards under
section 112(e) of the Act; or
(ii) five years elapses from the date of issuance; or
(iii) the source is issued a part 70 permit.
(12) Off Permit Changes. A provision allowing changes that are not
addressed or prohibited by the permit, other than those subject to the
requirements of 40 CFR parts 72 through 78 or those that are
modifications under any provision of title I of the Act to be made
without a permit revision, provided that the following requirements are
met:
(i) Each such change shall meet all applicable requirements and
shall not violate any existing permit term or condition;
(ii) Sources must provide contemporaneous written notice to the
permitting authority (and EPA, in the case of a program delegated
pursuant to Sec. 71.10) of each such change, except for changes that
qualify as insignificant under Sec. 71.5(c)(11). Such written notice
shall describe each such change, including the date, any change in
emissions, pollutants emitted, and any applicable requirement that would
apply as a result of the change;
(iii) The change shall not qualify for the shield under
Sec. 71.6(f);
(iv) The permittee shall keep a record describing changes made at
the source that result in emissions of a regulated air pollutant subject
to an applicable requirement, but not otherwise regulated under the
permit, and the emissions resulting from those changes.
(13) Operational flexibility. Provisions consistent with paragraphs
(a)(3)(i) through (iii) of this section to allow changes within a
permitted facility without requiring a permit revision, if the changes
are not modifications under any provision of title I of the Act and the
changes do not exceed the emissions allowable under the permit (whether
expressed therein as a rate of
[[Page 141]]
emissions or in terms of total emissions): Provided, that the facility
provides the Administrator (in the case of a program delegated pursuant
to Sec. 71.10) and the permitting authority with written notification as
required below in advance of the proposed changes, which shall be a
minimum of 7 days.
(i) The permit shall allow the permitted source to make section
502(b)(10) 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).
(A) For each such change, the written notification required above
shall include a brief description of the change within the permitted
facility, the date on which the change will occur, any change in
emissions, and any permit term or condition that is no longer applicable
as a result of the change.
(B) The permit shield described in Sec. 71.6(f) shall not apply to
any change made pursuant to this paragraph (a)(13)(i).
(ii) The permit may provide for the permitted source to trade
increases and decreases in emissions in the permitted facility, where
the applicable implementation plan provides for such emissions trades
without requiring a permit revision and based on the 7-day notice
prescribed in this paragraph (a)(13)(ii) of this section. This provision
is available in those cases where the permit does not already provide
for such emissions trading.
(A) Under this paragraph (a)(13)(ii), 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.
(B) The permit shield described in Sec. 71.6(f) shall not extend to
any change made under this paragraph (a)(13)(ii). Compliance with the
permit requirements that the source will meet using the emissions trade
shall be determined according to requirements of the applicable
implementation plan authorizing the emissions trade.
(iii) The permit shall require the permitting authority, if a permit
applicant requests it, to issue permits that contain terms and
conditions, including all terms required under Sec. 71.6 (a) and (c) to
determine compliance, allowing for the trading of emissions increases
and decreases in the permitted facility solely for the purpose of
complying with a federally-enforceable emissions cap that is established
in the permit independent of otherwise applicable requirements. The
permit applicant shall include in its application proposed replicable
procedures and permit terms that ensure the emissions trades are
quantifiable and enforceable. The permitting authority shall not be
required to include in the emissions trading provisions any emissions
units for which emissions are not quantifiable or for which there are no
replicable procedures to enforce the emissions trades. The permit shall
also require compliance with all applicable requirements.
(A) Under this paragraph (a)(13)(iii), 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.
(B) The permit shield described in Sec. 71.6(f) may extend to terms
and conditions that allow such increases and decreases in emissions.
(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, are enforceable by the Administrator and citizens
under the Act.
(c) Compliance requirements. All part 71 permits shall contain the
following elements with respect to compliance:
[[Page 142]]
(1) Consistent with paragraph (a)(3) of this section, compliance
certification, testing, monitoring, reporting, and recordkeeping
requirements sufficient to assure compliance with the terms and
conditions of the permit. Any document (including reports) required by a
part 71 permit shall contain a certification by a responsible official
that meets the requirements of Sec. 71.5(d).
(2) Inspection and entry requirements that require that, 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:
(i) 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;
(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) 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.
(3) A schedule of compliance consistent with Sec. 71.5(c)(8).
(4) Progress reports consistent with an applicable schedule of
compliance and Sec. 71.5(c)(8) to be submitted at least semiannually, or
at a more frequent period if specified in the applicable requirement or
by the permitting authority. Such progress reports shall contain the
following:
(i) 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
(ii) 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.
(5) Requirements for compliance certification with terms and
conditions contained in the permit, including emission limitations,
standards, or work practices. Permits shall include each of the
following:
(i) The frequency (not less than annually or such more frequent
periods as specified in the applicable requirement or by the permitting
authority) of submissions of compliance certifications;
(ii) In accordance with Sec. 71.6(a)(3), a means for monitoring the
compliance of the source with its emissions limitations, standards, and
work practices;
(iii) A requirement that the compliance certification include all of
the following (provided that the identification of applicable
information may cross-reference the permit or previous reports, as
applicable):
(A) The identification of each term or condition of the permit that
is the basis of the certification;
(B) The identification of the method(s) or other means used by the
owner or operator for determining the compliance status with each term
and condition during the certification period, and whether such methods
or other means provide continuous or intermittent data. Such methods and
other means shall include, at a minimum, the methods and means required
under paragraph (a)(3) of this section. If necessary, the owner or
operator also shall identify any other material information that must be
included in the certification to comply with section 113(c)(2) of the
Act, which prohibits knowingly making a false certification or omitting
material information;
(C) The status of compliance with the terms and conditions of the
permit for the period covered by the certification, based on the method
or means designated in paragraph (c)(5)(iii)(B) of this section. The
certification shall identify each deviation and take it into account in
the compliance certification; and
(D) Such other facts as the permitting authority may require to
determine the compliance status of the source.
(iv) A requirement that all compliance certifications be submitted
to the Administrator as well as to the permitting authority.
(6) Such other provisions as the permitting authority may require.
[[Page 143]]
(d) 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 conditions and terms of the general permit. Notwithstanding
the shield provisions of paragraph (f) 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 40 CFR parts 72 through 78.
(2) Part 71 sources that would 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
Sec. 71.5. The permitting authority may, in the general permit, provide
for applications which deviate from the requirements of Sec. 71.5,
provided that such applications meet the requirements of title V of the
Act, and include all information necessary to determine qualification
for, and to assure compliance with, the general permit. 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, but such a grant shall not be a final
permit action for purposes of judicial review.
(e) 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 include the following:
(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.
(f) 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 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 or in any part 71 permit shall alter
or affect the following:
(i) The provisions of section 303 of the Act (emergency orders),
including the authority of the Administrator under that section;
(ii) The liability of an owner or operator of a source for any
violation of applicable requirements prior to or at the time of permit
issuance;
(iii) The applicable requirements of the acid rain program,
consistent with section 408(a) of the Act; or
(iv) The ability of EPA to obtain information from a source pursuant
to section 114 of the Act.
(g) 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
[[Page 144]]
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 (g)(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 (a)(3)(iii)(B) 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.
(5) This provision is in addition to any emergency or upset
provision contained in any applicable requirement.
[61 FR 34228, July 1, 1996, as amended at 62 FR 54947, Oct. 22, 1997]
Sec. 71.7 Permit issuance, renewal, reopenings, and revisions.
(a) Action on application. (1) A permit, permit modification, 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 modification, or permit renewal, except that a complete
application need not be received before issuance of a general permit
under Sec. 71.6(d);
(ii) Except for modifications qualifying for minor permit
modification procedures under paragraphs (e) (1) and (2) of this
section, the permitting authority has complied with the requirements for
public participation under this section or Sec. 71.11, as applicable;
(iii) The permitting authority has complied with the requirements
for notifying and responding to affected States under Sec. 71.8(a);
(iv) 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, the
Administrator has received a copy of the proposed permit and any notices
required under Sec. 71.10(d) and has not objected to 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
for 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 modification or renewal) within 18
months after receiving a complete application.
(3) The permitting authority shall ensure that priority is given to
taking action on applications for construction or modification under
title I, parts C and D of the Act.
(4) 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. For modifications processed
through minor permit modification procedures, such as those in
[[Page 145]]
paragraphs (e) (1) and (2) of this section, the permitting authority
need not make a completeness determination.
(5) 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.
(6) The submittal of a complete application shall not affect the
requirement that any source have a preconstruction permit under title I
of the Act.
(b) Requirement for a permit. Except as provided in the following
sentence, Sec. 71.6(a)(13), and paragraphs (e)(1)(v) and e(2)(v) of this
section, no part 71 source may operate after the time that it is
required to submit a timely and complete application under this part,
except in compliance with a permit issued under this part. If a 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)(4) 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) (i) Permits being renewed are
subject to the same procedural requirements, including those for public
participation, affected State review, and EPA review (in the case of a
program delegated pursuant to Sec. 71.10) that apply to initial permit
issuance.
(ii) 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 Sec. 71.5(a)(1)(iii).
(2) In the case of a program delegated pursuant to Sec. 71.10, if
the permitting authority fails to act in a timely way on permit renewal,
EPA may invoke its authority under section 505(e) of the Act to
terminate or revoke and reissue the permit.
(3) If a timely and complete application for a permit renewal is
submitted, consistent with Sec. 71.5(a)(2), 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 71 permit, then the permit shall not
expire until the renewal permit has been issued or denied and any permit
shield that may be granted pursuant to Sec. 71.6(f) may extend beyond
the original permit term until renewal; or all the terms and conditions
of the permit including any permit shield that may be granted pursuant
to Sec. 71.6(f) shall remain in effect until the renewal permit has been
issued or denied.
(d) 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 a
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;
(v) Incorporates into the part 71 permit the requirements from
preconstruction review permits authorized under an EPA-approved program,
provided that such a program meets procedural requirements substantially
equivalent to the requirements of Secs. 71.7 and 71.8 (and Sec. 71.10 in
the case of a delegated program) that would be applicable to the change
if it were subject to review as a permit modification, and compliance
requirements substantially equivalent to those contained in Sec. 71.6;
or
[[Page 146]]
(vi) Incorporates any other type of change which the Administrator
has determined to be similar to those in paragraphs (d)(1)(i) through
(iv) of this section.
(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. An administrative
permit amendment may be made by the permitting authority consistent with
the following:
(i) The permitting authority shall take no more than 60 days from
receipt of a request for an administrative permit amendment to take
final action on such request, and may incorporate such changes without
providing notice to the public or affected States provided that it
designates any such permit revisions as having been made pursuant to
this paragraph.
(ii) The permitting authority shall submit a copy of the revised
permit to the Administrator in the case of a program delegated pursuant
to Sec. 71.10.
(iii) The source may implement the changes addressed in the request
for an administrative amendment immediately upon submittal of the
request.
(4) The permitting authority may, upon taking final action granting
a request for an administrative permit amendment, allow coverage by the
permit shield in Sec. 71.6(f) for administrative permit amendments made
pursuant to paragraph (d)(1)(v) of this section which meet the relevant
requirements of Secs. 71.6, 71.7, and 71.8 for significant permit
modifications.
(e) Permit modifications. A permit modification is any revision to a
part 71 permit that cannot be accomplished under the provisions for
administrative permit amendments under paragraph (d) of this section. A
permit modification for purposes of the acid rain portion of the permit
shall be governed by 40 CFR part 72.
(1) Minor permit modification procedures.
(i) Criteria.
(A) Minor permit modification procedures may be used only for those
permit modifications that:
(1) Do not violate any applicable requirement;
(2) Do not involve significant changes to existing monitoring,
reporting, or recordkeeping requirements in the permit;
(3) Do not require or change a case-by-case determination of an
emission limitation or other standard, or a source-specific
determination for temporary sources of ambient impacts, or a visibility
or increment analysis;
(4) Do not seek to establish or change a permit term or condition
for which there is no corresponding underlying applicable requirement
and that the source has assumed to avoid an applicable requirement to
which the source would otherwise be subject. Such terms and conditions
include:
(i) A federally enforceable emissions cap assumed to avoid
classification as a modification under any provision of title I; and
(ii) An alternative emissions limit approved pursuant to regulations
promulgated under section 112(i)(5) of the Act;
(5) Are not modifications under any provision of title I of the Act;
and
(6) Are not required to be processed as a significant modification.
(B) Notwithstanding paragraphs (e)(1)(i)(A) and (e)(2)(i) of this
section, minor permit modification procedures may be used for permit
modifications involving the use of economic incentives, marketable
permits, emissions trading, and other similar approaches, to the extent
that such minor permit modification procedures are explicitly provided
for in an applicable implementation plan or in applicable requirements
promulgated by EPA.
(ii) Application. An application requesting the use of minor permit
modification procedures shall meet the requirements of Sec. 71.5(c) and
shall include 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) The source's suggested draft permit;
(C) Certification by a responsible official, consistent with
Sec. 71.5(d), that the proposed modification meets the criteria for use
of minor permit modification procedures and a request that such
procedures be used; and
[[Page 147]]
(D) Completed forms for the permitting authority to use to notify
affected States (and the Administrator in the case of a program
delegated pursuant to Sec. 71.10) as required under Secs. 71.8 and
71.10(d).
(iii) EPA and affected State notification. Within 5 working days of
receipt of a complete permit modification application, the permitting
authority shall meet its obligation under Sec. 71.8(a) to notify
affected States (and its obligation under Sec. 71.10(d) to notify the
Administrator in the case of a program delegated pursuant to Sec. 71.10)
of the requested permit modification. In the case of a program delegated
pursuant to Sec. 71.10, the permitting authority promptly shall send any
notice required under Sec. 71.8(b) to the Administrator.
(iv) Timetable for issuance. In the case of a program delegated
pursuant to Sec. 71.10, the permitting authority may not issue a final
permit modification until after EPA's 45-day review period or until EPA
has notified the permitting authority that EPA will not object to
issuance of the permit modification, whichever is first, although the
permitting authority can approve the permit modification prior to that
time. Within 90 days of the permitting authority's receipt of an
application under minor permit modification procedures (or 15 days after
the end of the Administrator's 45-day review period under Sec. 71.10(g)
in the case of a program delegated pursuant to Sec. 71.10, whichever is
later), the permitting authority shall:
(A) Issue the permit modification as proposed;
(B) Deny the permit modification application;
(C) Determine that the requested modification does not meet the
minor permit modification criteria and should be reviewed under the
significant modification procedures; or
(D) Revise the draft permit modification (and, in the case of a
program delegated pursuant to Sec. 71.10, transmit to the Administrator
the new proposed permit modification as required by Sec. 71.10(d)).
(v) Source's ability to make change. The source may make the change
proposed in its minor permit modification application immediately after
it files such application. After the source makes the change allowed by
the preceding sentence, and until the permitting authority takes any of
the actions specified in paragraphs (e)(1)(iv) (A) through (C) 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 modify. 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
modify may be enforced against it.
(vi) Permit shield. The permit shield under Sec. 71.6(f) may not
extend to minor permit modifications.
(2) Group processing of minor permit modifications. Consistent with
this paragraph, the permitting authority may modify the procedure
outlined in paragraph (e)(1) of this section to process groups of a
source's applications for certain modifications eligible for minor
permit modification processing.
(i) Criteria. Group processing of modifications may be used only for
those permit modifications:
(A) That meet the criteria for minor permit modification procedures
under paragraph (e)(1)(i)(A) of this section; and
(B) That collectively are below the threshold level of 10 percent of
the emissions allowed by the permit for the emissions unit for which the
change is requested, 20 percent of the applicable definition of major
source in Sec. 71.2, or 5 tpy, whichever is least.
(ii) Application. An application requesting the use of group
processing procedures shall meet the requirements of Sec. 71.5(c) and
shall include 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) The source's suggested draft permit.
(C) Certification by a responsible official, consistent with
Sec. 71.5(d), that the
[[Page 148]]
proposed modification meets the criteria for use of group processing
procedures and a request that such procedures be used.
(D) A list of the source's other pending applications awaiting group
processing, and a determination of whether the requested modification,
aggregated with these other applications, equals or exceeds the
threshold set under paragraph (e)(2)(i)(B) of this section.
(E) Certification, consistent with Sec. 71.5(d), that, in the case
of a program delegated pursuant to Sec. 71.10, the source has notified
EPA of the proposed modification. Such notification need only contain a
brief description of the requested modification.
(F) Completed forms for the permitting authority to use to notify
affected States as required under Sec. 71.8 (and the Administrator as
required under Sec. 71.10(d) in the case of a program delegated pursuant
to Sec. 71.10).
(iii) EPA and affected State notification. On a quarterly basis or
within 5 business days of receipt of an application demonstrating that
the aggregate of a source's pending applications equals or exceeds the
threshold level set under paragraph (e)(2)(i)(B) of this section,
whichever is earlier, the permitting authority promptly shall meet its
obligation under Sec. 71.8(a) to notify affected States (and its
obligation under Sec. 71.10(d) to notify EPA in the case of a program
delegated pursuant to Sec. 71.10) of the requested permit modification.
The permitting authority shall send any notice required under
Sec. 71.8(b) to the Administrator in the case of a program delegated
pursuant to Sec. 71.10.
(iv) Timetable for issuance. The provisions of paragraph (e)(1)(iv)
of this section shall apply to modifications eligible for group
processing, except that the permitting authority shall take one of the
actions specified in paragraphs (e)(1)(iv) (A) through (D) of this
section within 180 days of receipt of the application (or, in the case
of a program delegated pursuant to Sec. 71.10, 15 days after the end of
the Administrator's 45-day review period under Sec. 71.10(g), whichever
is later).
(v) Source's ability to make change. The provisions of paragraph
(e)(1)(v) of this section shall apply to modifications eligible for
group processing.
(vi) Permit shield. The provisions of paragraph (e)(1)(vi) of this
section shall also apply to modifications eligible for group processing.
(3) Significant modification procedures--(i) Criteria. Significant
modification procedures shall be used for applications requesting permit
modifications that do not qualify as minor permit modifications or as
administrative amendments. Every significant change in existing
monitoring permit terms or conditions and every relaxation of reporting
or recordkeeping permit terms or conditions shall be considered
significant. 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.
(ii) Significant permit modifications shall meet all requirements of
this part, including those for applications, public participation,
review by affected States, and review by EPA (in the case of a program
delegated pursuant to Sec. 71.10), as they apply to permit issuance and
permit renewal. The permitting authority shall design and implement this
review process to complete review on the majority of significant permit
modifications within 9 months after receipt of a complete application.
(f) 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 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
paragraph (c)(3) of this section.
[[Page 149]]
(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.
(3) Reopenings under paragraph (f)(1) of this section shall not be
initiated before a notice of such intent is provided to the 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.
(g) 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, modify, or revoke and reissue a
permit pursuant to paragraph (f) 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, modification, 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 EPA makes and to terminate,
modify, 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 (g)(2) of this section or fails to
resolve any objection pursuant to paragraph (g)(4) of this section, the
Administrator will terminate, modify, or revoke and reissue the permit
after taking the following actions:
(i) Providing at least 30 days' notice to the permittee in writing
of the reasons for any such action. This notice may be given during the
procedures in paragraphs (g) (1) through (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 within Indian country, 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
Sec. 71.7 or Sec. 71.11(d) except to the extent Sec. 71.7(e)(1) or (2)
requires the timing of the notice to be different.
(b) Notice of refusal to accept recommendations. Prior to issuance
of the final permit, the permitting authority shall notify any affected
State 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
[[Page 150]]
applicable requirements or the requirements of this part. In the case of
a program delegated pursuant to Sec. 71.10, the permitting authority
shall include such notice as part of the submittal of the proposed
permit to the Administrator (or as soon as possible after the submittal
for minor permit modification procedures allowed under Sec. 71.7(e)(1)
or (2)).
(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.
(d) Notice provided to Indian Tribes. The permitting authority shall
provide notice of each draft permit to any federally recognized Indian
Tribe:
(1) Whose air quality may be affected by the permitting action and
is in an area contiguous to the jurisdiction in which the part 71 permit
is proposed; or
(2) Is within 50 miles of the permitted source.
[61 FR 34228, July 1, 1996, as amended at 64 FR 8263, Feb. 19, 1999]
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) 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;
(2) Processing permit reopenings;
(3) 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;
(4) 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;
(5) 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
(6) 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 $32 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 fully delegated pursuant to
Sec. 71.10:
(i) Where the EPA has not suspended its part 71 fee collection
pursuant to paragraph (c)(2)(ii) of this section, the annual fee for
each part 71 source shall be $24 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.
(ii) Where the delegate State collects fees from part 71 sources
under State law which are sufficient to fund the delegated part 71
program, the EPA may suspend its collection of part 71 fees. The
specific terms and conditions regarding the suspension of fee collection
will be addressed in the applicable delegation agreement pursuant to
Sec. 71.10.
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(3) For part 71 programs that are administered by EPA with
contractor assistance, the per ton fee shall 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 32)+[(1-E) x $C]
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. 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 nonpersonnel data management and
tracking costs.
(4) For programs that are delegated in part, the fee shall be
computed using the following formula:
Cost per ton=(E x 32)+(D x 24)+[(1-E-D) x $C]
Where E and D represent, respectively, the EPA and delegate agency
proportions of total effort (expressed as a percentage of total effort)
needed to administer the part 71 program, 1-E-D represents the
contractor's effort, and C represents the contractor assistance cost on
a per ton basis. C shall be computed using the formula for contractor
assistance cost found in paragraph (c)(3) of this section and shall be
zero if contractor assistance is not utilized.
(5) The following emissions shall be excluded from the calculation
of fees under paragraph (c)(1) through (c)(4) 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(c)(11).
(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.
(7) Notwithstanding the provisions of paragraph (c) (1) through (4)
of this section, if the Administrator determines that the fee structures
provided in paragraphs (c)(1) through (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 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 of the full amount must accompany each
initial fee calculation work sheet.
(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
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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.
(3) The initial fee calculation worksheet shall be certified by a
responsible official consistent with Sec. 71.5(d).
(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 6 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 7 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 8 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 9 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(a)(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(a)(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)(1) of this section. However,
initial fee calculation work sheets for such sources and full payment of
the initial fee 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 by April 1.
(2) Annual emissions reports and fee calculation worksheets shall be
certified by a responsible official consistent with Sec. 71.5(d).
(3) 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.
(4) 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
[[Page 153]]
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 shall retain, in
accordance with the provisions of Sec. 71.6(a)(3)(ii), 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.
(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) If a source underpays the fee owed, except as provided in
paragraph (l)(4) of this section, the permitting authority shall assess
a penalty charge of 50 percent on the amount by which the fee was
underpaid. Interest shall also be assessed, computed under paragraph
(l)(1) of this section, on the amount by which the fee was underpaid.
(4) If a source bases its initial fee calculation on estimated
emissions from the source's current or preceding calendar year, as
provided under paragraph (h)(4) of this section, and underpays its fee
based on an underestimation of these emissions, the permitting authority
shall assess a penalty charge of 50 percent on certain of these
underpayments, according to the following provisions:
(i) The penalty charge shall be assessed whenever a source's
underpayment exceeds the underpayment penalty cutoff established in
paragraph (l)(4)(iii) of this section. The penalty amount shall be 50
percent of the portion of the underpayment which is in excess of the
underpayment penalty cutoff.
(ii) Where a source is subject to a penalty for underpayment
pursuant to paragraph (l)(4)(i) of this section, interest as computed
under paragraph (l)(1) of this section shall be assessed on that portion
of the underpayment which is in excess of the underpayment penalty
cutoff established in paragraph (l)(4)(iii) of this section.
(iii) The underpayment penalty cutoff for a source shall be the sum
of the following:
(A) 50 percent of the portion of the initial fee amount which was
calculated from estimated emissions of HAP listed pursuant to 112(b) of
the Act, and
(B) 20 percent of the portion of initial fee amount which was
calculated from estimated emissions of the remainder of the regulated
air pollutants (for fee calculation).
(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.
[[Page 154]]
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 (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 2 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.
(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.
(p) The permitting authority may reduce any fee required under
paragraph (c) of this section for sources that are located in areas for
which EPA believes the Indian country status is in question and that
have paid permit fees to a State or local permitting authority that has
asserted CAA regulatory authority over such areas under color of an EPA-
approved part 70 program. Upon application by the source, the part 71
fee may be reduced up to an amount that equals the difference between
the fee required under paragraph (c) and the fee paid to a State or
local permitting authority. The fee reduction will cease if the area in
which the source is located is later determined to be Indian country.
[61 FR 34228, July 1, 1996, as amended at 64 FR 8263, Feb. 19, 1999]
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 Notice of Delegation of Authority Agreement. The
Administrator shall publish a notice in the Federal Register informing
the public of any delegation of a portion of the part 71 program to a
State, eligible Tribe, or local agency.
(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, the delegate agency shall provide to the Administrator a
copy of each permit application (including any application for permit
modification), each proposed permit, and each final part 71 permit. 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. Upon agreement with the Administrator, the delegate
agency may submit to the Administrator a permit application summary form
and
[[Page 155]]
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.
(2) The Administrator may waive the requirements of paragraph (d)(1)
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.
(e) Retention of records. The records for each draft, proposed, and
final permit, and application for permit renewal or modification 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 modification) 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.
(g) EPA objection. (1) The Administrator will object to the issuance
of any proposed permit determined by the Administrator not to be in
compliance with applicable requirements or requirements under this part.
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; or
(iv) 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 Administrator shall issue or deny the permit 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 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).
[[Page 156]]
(j) Nondelegable 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 this section shall apply to all permit
proceedings. Notwithstanding the preceding sentence, paragraphs (a)
through (h) and paragraph (j) of this section shall not apply to permit
revisions qualifying as minor permit modifications or administrative
amendments, except that public notice of the granting of appeals of such
actions under paragraph (l)(3) of this section shall be provided
pursuant to paragraph (d)(1)(i)(E) of this section, and except that
affected States shall be provided notice of minor permit modifications
under Sec. 71.8 as pursuant to paragraph (d)(3)(i)(B) of this section.
(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; and
(D) A public comment period has been reopened under paragraph (h) of
this section;
[[Page 157]]
(E) An appeal has been granted under paragraph (l)(3) of this
section.
(ii) No public notice is required 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) 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 or Federal Land Manager whose lands
may be affected by emissions from the source;
(D) The local emergency planning committee having jurisdiction over
the area where the source is located, and State agencies having
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
[[Page 158]]
(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
[[Page 159]]
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 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 (h)
shall identify the issues to which the requirements of paragraphs (h)(1)
through (4) of this section 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 30 days after the
service of notice of the decision, unless:
(i) A later effective date is specified in the decision;
(ii) Review is requested under paragraph (l) of this section (in
which case the specific terms and conditions of the permit which are the
subject of the request for review shall be stayed); or
(iii) No comments requested a change in the draft permit, in which
case the permit shall become effective immediately upon issuance.
[[Page 160]]
(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 or other new grounds that were not
reasonably foreseeable during the public comment period on the draft
permit. 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,
except that the 30-day period within which a person may request review
of a minor permit modification or administrative amendment begins upon
the effective date of such action to revise the permit. 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
[[Page 161]]
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) Motions to reconsider a final order shall be filed within ten
(10) days after service of the final order. Every such motion must set
forth the matters claimed to have been erroneously decided and the
nature of the alleged errors. Motions for reconsideration under this
provision shall be directed to, and decided by, the Board. Motions for
reconsideration directed to the Administrator, rather than to the Board,
will not be considered, except in cases that the Board has referred to
the Administrator and in which the Administrator has issued the final
order. A motion for reconsideration shall not stay the effective date of
the final order unless specifically so ordered by the Board.
(7) Notice of any final agency action regarding a Federal operating
permit shall promptly be published in the Federal Register.
(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 Permitting Authority. (1) Any interested
person (including the permittee) may petition the permitting authority
to reopen a permit for cause, and the permitting authority may commence
a permit reopening on its own initiative. However, the permitting
authority shall not revise, revoke and reissue, or terminate a permit
except for the reasons specified in Sec. 71.7(f)(1) or
Sec. 71.6(a)(6)(i). All requests shall be in writing and shall contain
facts or reasons supporting the request.
[[Page 162]]
(2) If the permitting authority decides the request is not
justified, it 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 permitting authority may be
informally appealed to the Environmental Appeals Board by a letter
briefly setting forth the relevant facts. The Board may direct the
permitting authority 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 permitting authority decides the request is justified and
that cause exists to revise, revoke and reissue or terminate a permit,
it shall initiate proceedings to reopen the permit pursuant to
Sec. 71.7(f) or Sec. 71.7(g).
[61 FR 34228, July 1, 1996, as amended at 64 FR 8263, Feb. 19, 1999]
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.
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
[[Page 163]]
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
[[Page 164]]
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
[[Page 165]]
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
[[Page 166]]
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
[[Page 167]]
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:
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(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
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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
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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
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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
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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).
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(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;
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(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
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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
[[Page 176]]
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
[[Page 177]]
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.
[[Page 178]]
(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.
[[Page 179]]
FINDING AIDS
--------------------------------------------------------------------
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
[[Page 181]]
Material Approved for Incorporation by Reference
(Revised as of July 1, 1999)
The Director of the Federal Register has approved under 5 U.S.C.
552(a) and 1 CFR Part 51 the incorporation by reference of the following
publications. This list contains only those incorporations by reference
effective as of the revision date of this volume. Incorporations by
reference found within a regulation are effective upon the effective
date of that regulation. For more information on incorporation by
reference, see the preliminary pages of this volume.
40 CFR (PARTS 64 TO 71):
ENVIRONMENTAL PROTECTION AGENCY
40 CFR
National Fire Protection Association
11 Tracy Drive, Avon, MA 02322; Telephone: (800)
344-3555
NFPA 30 Flammable and Combustible Liquids Code, 68.115(2)(i)
1996 Edition.
NFPA 704 Standard System for the Identification of 68.115(2)(i)
the Hazards of Materials for Emergency Response,
1996 Edition.
[[Page 183]]
Table of CFR Titles and Chapters
(Revised as of July 1, 1999)
Title 1--General Provisions
I Administrative Committee of the Federal Register
(Parts 1--49)
II Office of the Federal Register (Parts 50--299)
IV Miscellaneous Agencies (Parts 400--500)
Title 2--[Reserved]
Title 3--The President
I Executive Office of the President (Parts 100--199)
Title 4--Accounts
I General Accounting Office (Parts 1--99)
II Federal Claims Collection Standards (General
Accounting Office--Department of Justice) (Parts
100--299)
Title 5--Administrative Personnel
I Office of Personnel Management (Parts 1--1199)
II Merit Systems Protection Board (Parts 1200--1299)
III Office of Management and Budget (Parts 1300--1399)
IV Advisory Committee on Federal Pay (Parts 1400--1499)
V The International Organizations Employees Loyalty
Board (Parts 1500--1599)
VI Federal Retirement Thrift Investment Board (Parts
1600--1699)
VII Advisory Commission on Intergovernmental Relations
(Parts 1700--1799)
VIII Office of Special Counsel (Parts 1800--1899)
IX Appalachian Regional Commission (Parts 1900--1999)
XI Armed Forces Retirement Home (Part 2100)
XIV Federal Labor Relations Authority, General Counsel of
the Federal Labor Relations Authority and Federal
Service Impasses Panel (Parts 2400--2499)
XV Office of Administration, Executive Office of the
President (Parts 2500--2599)
XVI Office of Government Ethics (Parts 2600--2699)
XXI Department of the Treasury (Parts 3100--3199)
[[Page 184]]
XXII Federal Deposit Insurance Corporation (Part 3201)
XXIII Department of Energy (Part 3301)
XXIV Federal Energy Regulatory Commission (Part 3401)
XXV Department of the Interior (Part 3501)
XXVI Department of Defense (Part 3601)
XXVIII Department of Justice (Part 3801)
XXIX Federal Communications Commission (Parts 3900--3999)
XXX Farm Credit System Insurance Corporation (Parts 4000--
4099)
XXXI Farm Credit Administration (Parts 4100--4199)
XXXIII Overseas Private Investment Corporation (Part 4301)
XXXV Office of Personnel Management (Part 4501)
XL Interstate Commerce Commission (Part 5001)
XLI Commodity Futures Trading Commission (Part 5101)
XLII Department of Labor (Part 5201)
XLIII National Science Foundation (Part 5301)
XLV Department of Health and Human Services (Part 5501)
XLVI Postal Rate Commission (Part 5601)
XLVII Federal Trade Commission (Part 5701)
XLVIII Nuclear Regulatory Commission (Part 5801)
L Department of Transportation (Part 6001)
LII Export-Import Bank of the United States (Part 6201)
LIII Department of Education (Parts 6300--6399)
LIV Environmental Protection Agency (Part 6401)
LVII General Services Administration (Part 6701)
LVIII Board of Governors of the Federal Reserve System (Part
6801)
LIX National Aeronautics and Space Administration (Part
6901)
LX United States Postal Service (Part 7001)
LXI National Labor Relations Board (Part 7101)
LXII Equal Employment Opportunity Commission (Part 7201)
LXIII Inter-American Foundation (Part 7301)
LXV Department of Housing and Urban Development (Part
7501)
LXVI National Archives and Records Administration (Part
7601)
LXIX Tennessee Valley Authority (Part 7901)
LXXI Consumer Product Safety Commission (Part 8101)
LXXIV Federal Mine Safety and Health Review Commission (Part
8401)
LXXVI Federal Retirement Thrift Investment Board (Part 8601)
LXXVII Office of Management and Budget (Part 8701)
Title 6--[Reserved]
Title 7--Agriculture
Subtitle A--Office of the Secretary of Agriculture
(Parts 0--26)
Subtitle B--Regulations of the Department of
Agriculture
[[Page 185]]
I Agricultural Marketing Service (Standards,
Inspections, Marketing Practices), Department of
Agriculture (Parts 27--209)
II Food and Nutrition Service, Department of Agriculture
(Parts 210--299)
III Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 300--399)
IV Federal Crop Insurance Corporation, Department of
Agriculture (Parts 400--499)
V Agricultural Research Service, Department of
Agriculture (Parts 500--599)
VI Natural Resources Conservation Service, Department of
Agriculture (Parts 600--699)
VII Farm Service Agency, Department of Agriculture (Parts
700--799)
VIII Grain Inspection, Packers and Stockyards
Administration (Federal Grain Inspection Service),
Department of Agriculture (Parts 800--899)
IX Agricultural Marketing Service (Marketing Agreements
and Orders; Fruits, Vegetables, Nuts), Department
of Agriculture (Parts 900--999)
X Agricultural Marketing Service (Marketing Agreements
and Orders; Milk), Department of Agriculture
(Parts 1000--1199)
XI Agricultural Marketing Service (Marketing Agreements
and Orders; Miscellaneous Commodities), Department
of Agriculture (Parts 1200--1299)
XIII Northeast Dairy Compact Commission (Parts 1300--1399)
XIV Commodity Credit Corporation, Department of
Agriculture (Parts 1400--1499)
XV Foreign Agricultural Service, Department of
Agriculture (Parts 1500--1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts
1600--1699)
XVII Rural Utilities Service, Department of Agriculture
(Parts 1700--1799)
XVIII Rural Housing Service, Rural Business-Cooperative
Service, Rural Utilities Service, and Farm Service
Agency, Department of Agriculture (Parts 1800--
2099)
XXVI Office of Inspector General, Department of Agriculture
(Parts 2600--2699)
XXVII Office of Information Resources Management, Department
of Agriculture (Parts 2700--2799)
XXVIII Office of Operations, Department of Agriculture (Parts
2800--2899)
XXIX Office of Energy, Department of Agriculture (Parts
2900--2999)
XXX Office of the Chief Financial Officer, Department of
Agriculture (Parts 3000--3099)
XXXI Office of Environmental Quality, Department of
Agriculture (Parts 3100--3199)
XXXII Office of Procurement and Property Management,
Department of Agriculture (Parts 3200--3299)
[[Page 186]]
XXXIII Office of Transportation, Department of Agriculture
(Parts 3300--3399)
XXXIV Cooperative State Research, Education, and Extension
Service, Department of Agriculture (Parts 3400--
3499)
XXXV Rural Housing Service, Department of Agriculture
(Parts 3500--3599)
XXXVI National Agricultural Statistics Service, Department
of Agriculture (Parts 3600--3699)
XXXVII Economic Research Service, Department of Agriculture
(Parts 3700--3799)
XXXVIII World Agricultural Outlook Board, Department of
Agriculture (Parts 3800--3899)
XLI [Reserved]
XLII Rural Business-Cooperative Service and Rural Utilities
Service, Department of Agriculture (Parts 4200--
4299)
Title 8--Aliens and Nationality
I Immigration and Naturalization Service, Department of
Justice (Parts 1--499)
Title 9--Animals and Animal Products
I Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 1--199)
II Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs),
Department of Agriculture (Parts 200--299)
III Food Safety and Inspection Service, Department of
Agriculture (Parts 300--599)
Title 10--Energy
I Nuclear Regulatory Commission (Parts 0--199)
II Department of Energy (Parts 200--699)
III Department of Energy (Parts 700--999)
X Department of Energy (General Provisions) (Parts
1000--1099)
XVII Defense Nuclear Facilities Safety Board (Parts 1700--
1799)
Title 11--Federal Elections
I Federal Election Commission (Parts 1--9099)
Title 12--Banks and Banking
I Comptroller of the Currency, Department of the
Treasury (Parts 1--199)
II Federal Reserve System (Parts 200--299)
III Federal Deposit Insurance Corporation (Parts 300--399)
[[Page 187]]
IV Export-Import Bank of the United States (Parts 400--
499)
V Office of Thrift Supervision, Department of the
Treasury (Parts 500--599)
VI Farm Credit Administration (Parts 600--699)
VII National Credit Union Administration (Parts 700--799)
VIII Federal Financing Bank (Parts 800--899)
IX Federal Housing Finance Board (Parts 900--999)
XI Federal Financial Institutions Examination Council
(Parts 1100--1199)
XIV Farm Credit System Insurance Corporation (Parts 1400--
1499)
XV Department of the Treasury (Parts 1500--1599)
XVII Office of Federal Housing Enterprise Oversight,
Department of Housing and Urban Development (Parts
1700--1799)
XVIII Community Development Financial Institutions Fund,
Department of the Treasury (Parts 1800--1899)
Title 13--Business Credit and Assistance
I Small Business Administration (Parts 1--199)
III Economic Development Administration, Department of
Commerce (Parts 300--399)
Title 14--Aeronautics and Space
I Federal Aviation Administration, Department of
Transportation (Parts 1--199)
II Office of the Secretary, Department of Transportation
(Aviation Proceedings) (Parts 200--399)
III Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation
(Parts 400--499)
V National Aeronautics and Space Administration (Parts
1200--1299)
Title 15--Commerce and Foreign Trade
Subtitle A--Office of the Secretary of Commerce (Parts
0--29)
Subtitle B--Regulations Relating to Commerce and
Foreign Trade
I Bureau of the Census, Department of Commerce (Parts
30--199)
II National Institute of Standards and Technology,
Department of Commerce (Parts 200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
IV Foreign-Trade Zones Board, Department of Commerce
(Parts 400--499)
VII Bureau of Export Administration, Department of
Commerce (Parts 700--799)
[[Page 188]]
VIII Bureau of Economic Analysis, Department of Commerce
(Parts 800--899)
IX National Oceanic and Atmospheric Administration,
Department of Commerce (Parts 900--999)
XI Technology Administration, Department of Commerce
(Parts 1100--1199)
XIII East-West Foreign Trade Board (Parts 1300--1399)
XIV Minority Business Development Agency (Parts 1400--
1499)
Subtitle C--Regulations Relating to Foreign Trade
Agreements
XX Office of the United States Trade Representative
(Parts 2000--2099)
Subtitle D--Regulations Relating to Telecommunications
and Information
XXIII National Telecommunications and Information
Administration, Department of Commerce (Parts
2300--2399)
Title 16--Commercial Practices
I Federal Trade Commission (Parts 0--999)
II Consumer Product Safety Commission (Parts 1000--1799)
Title 17--Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1--199)
II Securities and Exchange Commission (Parts 200--399)
IV Department of the Treasury (Parts 400--499)
Title 18--Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of
Energy (Parts 1--399)
III Delaware River Basin Commission (Parts 400--499)
VI Water Resources Council (Parts 700--799)
VIII Susquehanna River Basin Commission (Parts 800--899)
XIII Tennessee Valley Authority (Parts 1300--1399)
Title 19--Customs Duties
I United States Customs Service, Department of the
Treasury (Parts 1--199)
II United States International Trade Commission (Parts
200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
[[Page 189]]
Title 20--Employees' Benefits
I Office of Workers' Compensation Programs, Department
of Labor (Parts 1--199)
II Railroad Retirement Board (Parts 200--399)
III Social Security Administration (Parts 400--499)
IV Employees' Compensation Appeals Board, Department of
Labor (Parts 500--599)
V Employment and Training Administration, Department of
Labor (Parts 600--699)
VI Employment Standards Administration, Department of
Labor (Parts 700--799)
VII Benefits Review Board, Department of Labor (Parts
800--899)
VIII Joint Board for the Enrollment of Actuaries (Parts
900--999)
IX Office of the Assistant Secretary for Veterans'
Employment and Training, Department of Labor
(Parts 1000--1099)
Title 21--Food and Drugs
I Food and Drug Administration, Department of Health and
Human Services (Parts 1--1299)
II Drug Enforcement Administration, Department of Justice
(Parts 1300--1399)
III Office of National Drug Control Policy (Parts 1400--
1499)
Title 22--Foreign Relations
I Department of State (Parts 1--199)
II Agency for International Development (Parts 200--299)
III Peace Corps (Parts 300--399)
IV International Joint Commission, United States and
Canada (Parts 400--499)
V United States Information Agency (Parts 500--599)
VII Overseas Private Investment Corporation (Parts 700--
799)
IX Foreign Service Grievance Board Regulations (Parts
900--999)
X Inter-American Foundation (Parts 1000--1099)
XI International Boundary and Water Commission, United
States and Mexico, United States Section (Parts
1100--1199)
XII United States International Development Cooperation
Agency (Parts 1200--1299)
XIII Board for International Broadcasting (Parts 1300--
1399)
XIV Foreign Service Labor Relations Board; Federal Labor
Relations Authority; General Counsel of the
Federal Labor Relations Authority; and the Foreign
Service Impasse Disputes Panel (Parts 1400--1499)
XV African Development Foundation (Parts 1500--1599)
XVI Japan-United States Friendship Commission (Parts
1600--1699)
XVII United States Institute of Peace (Parts 1700--1799)
[[Page 190]]
Title 23--Highways
I Federal Highway Administration, Department of
Transportation (Parts 1--999)
II National Highway Traffic Safety Administration and
Federal Highway Administration, Department of
Transportation (Parts 1200--1299)
III National Highway Traffic Safety Administration,
Department of Transportation (Parts 1300--1399)
Title 24--Housing and Urban Development
Subtitle A--Office of the Secretary, Department of
Housing and Urban Development (Parts 0--99)
Subtitle B--Regulations Relating to Housing and Urban
Development
I Office of Assistant Secretary for Equal Opportunity,
Department of Housing and Urban Development (Parts
100--199)
II Office of Assistant Secretary for Housing-Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 200--299)
III Government National Mortgage Association, Department
of Housing and Urban Development (Parts 300--399)
IV Office of Multifamily Housing Assistance
Restructuring, Department of Housing and Urban
Development (Parts 400--499)
V Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 500--599)
VI Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 600--699) [Reserved]
VII Office of the Secretary, Department of Housing and
Urban Development (Housing Assistance Programs and
Public and Indian Housing Programs) (Parts 700--
799)
VIII Office of the Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Section 8 Housing Assistance
Programs, Section 202 Direct Loan Program, Section
202 Supportive Housing for the Elderly Program and
Section 811 Supportive Housing for Persons With
Disabilities Program) (Parts 800--899)
IX Office of Assistant Secretary for Public and Indian
Housing, Department of Housing and Urban
Development (Parts 900--999)
X Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Interstate Land Sales
Registration Program) (Parts 1700--1799)
XII Office of Inspector General, Department of Housing and
Urban Development (Parts 2000--2099)
XX Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 3200--3899)
XXV Neighborhood Reinvestment Corporation (Parts 4100--
4199)
[[Page 191]]
Title 25--Indians
I Bureau of Indian Affairs, Department of the Interior
(Parts 1--299)
II Indian Arts and Crafts Board, Department of the
Interior (Parts 300--399)
III National Indian Gaming Commission, Department of the
Interior (Parts 500--599)
IV Office of Navajo and Hopi Indian Relocation (Parts
700--799)
V Bureau of Indian Affairs, Department of the Interior,
and Indian Health Service, Department of Health
and Human Services (Part 900)
VI Office of the Assistant Secretary-Indian Affairs,
Department of the Interior (Part 1001)
VII Office of the Special Trustee for American Indians,
Department of the Interior (Part 1200)
Title 26--Internal Revenue
I Internal Revenue Service, Department of the Treasury
(Parts 1--799)
Title 27--Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of
the Treasury (Parts 1--299)
Title 28--Judicial Administration
I Department of Justice (Parts 0--199)
III Federal Prison Industries, Inc., Department of Justice
(Parts 300--399)
V Bureau of Prisons, Department of Justice (Parts 500--
599)
VI Offices of Independent Counsel, Department of Justice
(Parts 600--699)
VII Office of Independent Counsel (Parts 700--799)
Title 29--Labor
Subtitle A--Office of the Secretary of Labor (Parts
0--99)
Subtitle B--Regulations Relating to Labor
I National Labor Relations Board (Parts 100--199)
II Office of Labor-Management Standards, Department of
Labor (Parts 200--299)
III National Railroad Adjustment Board (Parts 300--399)
IV Office of Labor-Management Standards, Department of
Labor (Parts 400--499)
V Wage and Hour Division, Department of Labor (Parts
500--899)
IX Construction Industry Collective Bargaining Commission
(Parts 900--999)
X National Mediation Board (Parts 1200--1299)
[[Page 192]]
XII Federal Mediation and Conciliation Service (Parts
1400--1499)
XIV Equal Employment Opportunity Commission (Parts 1600--
1699)
XVII Occupational Safety and Health Administration,
Department of Labor (Parts 1900--1999)
XX Occupational Safety and Health Review Commission
(Parts 2200--2499)
XXV Pension and Welfare Benefits Administration,
Department of Labor (Parts 2500--2599)
XXVII Federal Mine Safety and Health Review Commission
(Parts 2700--2799)
XL Pension Benefit Guaranty Corporation (Parts 4000--
4999)
Title 30--Mineral Resources
I Mine Safety and Health Administration, Department of
Labor (Parts 1--199)
II Minerals Management Service, Department of the
Interior (Parts 200--299)
III Board of Surface Mining and Reclamation Appeals,
Department of the Interior (Parts 300--399)
IV Geological Survey, Department of the Interior (Parts
400--499)
VI Bureau of Mines, Department of the Interior (Parts
600--699)
VII Office of Surface Mining Reclamation and Enforcement,
Department of the Interior (Parts 700--999)
Title 31--Money and Finance: Treasury
Subtitle A--Office of the Secretary of the Treasury
(Parts 0--50)
Subtitle B--Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts
51--199)
II Fiscal Service, Department of the Treasury (Parts
200--399)
IV Secret Service, Department of the Treasury (Parts
400--499)
V Office of Foreign Assets Control, Department of the
Treasury (Parts 500--599)
VI Bureau of Engraving and Printing, Department of the
Treasury (Parts 600--699)
VII Federal Law Enforcement Training Center, Department of
the Treasury (Parts 700--799)
VIII Office of International Investment, Department of the
Treasury (Parts 800--899)
Title 32--National Defense
Subtitle A--Department of Defense
I Office of the Secretary of Defense (Parts 1--399)
V Department of the Army (Parts 400--699)
VI Department of the Navy (Parts 700--799)
[[Page 193]]
VII Department of the Air Force (Parts 800--1099)
Subtitle B--Other Regulations Relating to National
Defense
XII Defense Logistics Agency (Parts 1200--1299)
XVI Selective Service System (Parts 1600--1699)
XIX Central Intelligence Agency (Parts 1900--1999)
XX Information Security Oversight Office, National
Archives and Records Administration (Parts 2000--
2099)
XXI National Security Council (Parts 2100--2199)
XXIV Office of Science and Technology Policy (Parts 2400--
2499)
XXVII Office for Micronesian Status Negotiations (Parts
2700--2799)
XXVIII Office of the Vice President of the United States
(Parts 2800--2899)
XXIX Presidential Commission on the Assignment of Women in
the Armed Forces (Part 2900)
Title 33--Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1--
199)
II Corps of Engineers, Department of the Army (Parts
200--399)
IV Saint Lawrence Seaway Development Corporation,
Department of Transportation (Parts 400--499)
Title 34--Education
Subtitle A--Office of the Secretary, Department of
Education (Parts 1--99)
Subtitle B--Regulations of the Offices of the
Department of Education
I Office for Civil Rights, Department of Education
(Parts 100--199)
II Office of Elementary and Secondary Education,
Department of Education (Parts 200--299)
III Office of Special Education and Rehabilitative
Services, Department of Education (Parts 300--399)
IV Office of Vocational and Adult Education, Department
of Education (Parts 400--499)
V Office of Bilingual Education and Minority Languages
Affairs, Department of Education (Parts 500--599)
VI Office of Postsecondary Education, Department of
Education (Parts 600--699)
VII Office of Educational Research and Improvement,
Department of Education (Parts 700--799)
XI National Institute for Literacy (Parts 1100--1199)
Subtitle C--Regulations Relating to Education
XII National Council on Disability (Parts 1200--1299)
[[Page 194]]
Title 35--Panama Canal
I Panama Canal Regulations (Parts 1--299)
Title 36--Parks, Forests, and Public Property
I National Park Service, Department of the Interior
(Parts 1--199)
II Forest Service, Department of Agriculture (Parts 200--
299)
III Corps of Engineers, Department of the Army (Parts
300--399)
IV American Battle Monuments Commission (Parts 400--499)
V Smithsonian Institution (Parts 500--599)
VII Library of Congress (Parts 700--799)
VIII Advisory Council on Historic Preservation (Parts 800--
899)
IX Pennsylvania Avenue Development Corporation (Parts
900--999)
X Presidio Trust (Parts 1000--1099)
XI Architectural and Transportation Barriers Compliance
Board (Parts 1100--1199)
XII National Archives and Records Administration (Parts
1200--1299)
XIV Assassination Records Review Board (Parts 1400--1499)
Title 37--Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce
(Parts 1--199)
II Copyright Office, Library of Congress (Parts 200--299)
IV Assistant Secretary for Technology Policy, Department
of Commerce (Parts 400--499)
V Under Secretary for Technology, Department of Commerce
(Parts 500--599)
Title 38--Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0--99)
Title 39--Postal Service
I United States Postal Service (Parts 1--999)
III Postal Rate Commission (Parts 3000--3099)
Title 40--Protection of Environment
I Environmental Protection Agency (Parts 1--799)
V Council on Environmental Quality (Parts 1500--1599)
VII Environmental Protection Agency and Department of
Defense; Uniform National Discharge Standards for
Vessels of the Armed Forces (Parts 1700--1799)
Title 41--Public Contracts and Property Management
Subtitle B--Other Provisions Relating to Public
Contracts
[[Page 195]]
50 Public Contracts, Department of Labor (Parts 50-1--50-
999)
51 Committee for Purchase From People Who Are Blind or
Severely Disabled (Parts 51-1--51-99)
60 Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor (Parts
60-1--60-999)
61 Office of the Assistant Secretary for Veterans
Employment and Training, Department of Labor
(Parts 61-1--61-999)
Subtitle C--Federal Property Management Regulations
System
101 Federal Property Management Regulations (Parts 101-1--
101-99)
105 General Services Administration (Parts 105-1--105-999)
109 Department of Energy Property Management Regulations
(Parts 109-1--109-99)
114 Department of the Interior (Parts 114-1--114-99)
115 Environmental Protection Agency (Parts 115-1--115-99)
128 Department of Justice (Parts 128-1--128-99)
Subtitle D--Other Provisions Relating to Property
Management [Reserved]
Subtitle E--Federal Information Resources Management
Regulations System
201 Federal Information Resources Management Regulation
(Parts 201-1--201-99) [Reserved]
Subtitle F--Federal Travel Regulation System
300 General (Parts 300-1--300.99)
301 Temporary Duty (TDY) Travel Allowances (Parts 301-1--
301-99)
302 Relocation Allowances (Parts 302-1--302-99)
303 Payment of Expenses Connected with the Death of
Certain Employees (Parts 303-1--303-2)
304 Payment from a Non-Federal Source for Travel Expenses
(Parts 304-1--304-99)
Title 42--Public Health
I Public Health Service, Department of Health and Human
Services (Parts 1--199)
IV Health Care Financing Administration, Department of
Health and Human Services (Parts 400--499)
V Office of Inspector General-Health Care, Department of
Health and Human Services (Parts 1000--1999)
Title 43--Public Lands: Interior
Subtitle A--Office of the Secretary of the Interior
(Parts 1--199)
Subtitle B--Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior
(Parts 200--499)
II Bureau of Land Management, Department of the Interior
(Parts 1000--9999)
[[Page 196]]
III Utah Reclamation Mitigation and Conservation
Commission (Parts 10000--10005)
Title 44--Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0--399)
IV Department of Commerce and Department of
Transportation (Parts 400--499)
Title 45--Public Welfare
Subtitle A--Department of Health and Human Services
(Parts 1--199)
Subtitle B--Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs),
Administration for Children and Families,
Department of Health and Human Services (Parts
200--299)
III Office of Child Support Enforcement (Child Support
Enforcement Program), Administration for Children
and Families, Department of Health and Human
Services (Parts 300--399)
IV Office of Refugee Resettlement, Administration for
Children and Families Department of Health and
Human Services (Parts 400--499)
V Foreign Claims Settlement Commission of the United
States, Department of Justice (Parts 500--599)
VI National Science Foundation (Parts 600--699)
VII Commission on Civil Rights (Parts 700--799)
VIII Office of Personnel Management (Parts 800--899)
X Office of Community Services, Administration for
Children and Families, Department of Health and
Human Services (Parts 1000--1099)
XI National Foundation on the Arts and the Humanities
(Parts 1100--1199)
XII Corporation for National and Community Service (Parts
1200--1299)
XIII Office of Human Development Services, Department of
Health and Human Services (Parts 1300--1399)
XVI Legal Services Corporation (Parts 1600--1699)
XVII National Commission on Libraries and Information
Science (Parts 1700--1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800--
1899)
XXI Commission on Fine Arts (Parts 2100--2199)
XXII Christopher Columbus Quincentenary Jubilee Commission
(Parts 2200--2299)
XXIII Arctic Research Commission (Part 2301)
XXIV James Madison Memorial Fellowship Foundation (Parts
2400--2499)
XXV Corporation for National and Community Service (Parts
2500--2599)
[[Page 197]]
Title 46--Shipping
I Coast Guard, Department of Transportation (Parts 1--
199)
II Maritime Administration, Department of Transportation
(Parts 200--399)
III Coast Guard (Great Lakes Pilotage), Department of
Transportation (Parts 400--499)
IV Federal Maritime Commission (Parts 500--599)
Title 47--Telecommunication
I Federal Communications Commission (Parts 0--199)
II Office of Science and Technology Policy and National
Security Council (Parts 200--299)
III National Telecommunications and Information
Administration, Department of Commerce (Parts
300--399)
Title 48--Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1--99)
2 Department of Defense (Parts 200--299)
3 Department of Health and Human Services (Parts 300--
399)
4 Department of Agriculture (Parts 400--499)
5 General Services Administration (Parts 500--599)
6 Department of State (Parts 600--699)
7 United States Agency for International Development
(Parts 700--799)
8 Department of Veterans Affairs (Parts 800--899)
9 Department of Energy (Parts 900--999)
10 Department of the Treasury (Parts 1000--1099)
12 Department of Transportation (Parts 1200--1299)
13 Department of Commerce (Parts 1300--1399)
14 Department of the Interior (Parts 1400--1499)
15 Environmental Protection Agency (Parts 1500--1599)
16 Office of Personnel Management Federal Employees
Health Benefits Acquisition Regulation (Parts
1600--1699)
17 Office of Personnel Management (Parts 1700--1799)
18 National Aeronautics and Space Administration (Parts
1800--1899)
19 United States Information Agency (Parts 1900--1999)
20 Nuclear Regulatory Commission (Parts 2000--2099)
21 Office of Personnel Management, Federal Employees
Group Life Insurance Federal Acquisition
Regulation (Parts 2100--2199)
23 Social Security Administration (Parts 2300--2399)
24 Department of Housing and Urban Development (Parts
2400--2499)
25 National Science Foundation (Parts 2500--2599)
28 Department of Justice (Parts 2800--2899)
29 Department of Labor (Parts 2900--2999)
[[Page 198]]
34 Department of Education Acquisition Regulation (Parts
3400--3499)
35 Panama Canal Commission (Parts 3500--3599)
44 Federal Emergency Management Agency (Parts 4400--4499)
51 Department of the Army Acquisition Regulations (Parts
5100--5199)
52 Department of the Navy Acquisition Regulations (Parts
5200--5299)
53 Department of the Air Force Federal Acquisition
Regulation Supplement (Parts 5300--5399)
54 Defense Logistics Agency, Department of Defense (Part
5452)
57 African Development Foundation (Parts 5700--5799)
61 General Services Administration Board of Contract
Appeals (Parts 6100--6199)
63 Department of Transportation Board of Contract Appeals
(Parts 6300--6399)
99 Cost Accounting Standards Board, Office of Federal
Procurement Policy, Office of Management and
Budget (Parts 9900--9999)
Title 49--Transportation
Subtitle A--Office of the Secretary of Transportation
(Parts 1--99)
Subtitle B--Other Regulations Relating to
Transportation
I Research and Special Programs Administration,
Department of Transportation (Parts 100--199)
II Federal Railroad Administration, Department of
Transportation (Parts 200--299)
III Federal Highway Administration, Department of
Transportation (Parts 300--399)
IV Coast Guard, Department of Transportation (Parts 400--
499)
V National Highway Traffic Safety Administration,
Department of Transportation (Parts 500--599)
VI Federal Transit Administration, Department of
Transportation (Parts 600--699)
VII National Railroad Passenger Corporation (AMTRAK)
(Parts 700--799)
VIII National Transportation Safety Board (Parts 800--999)
X Surface Transportation Board, Department of
Transportation (Parts 1000--1399)
XI Bureau of Transportation Statistics, Department of
Transportation (Parts 1400--1499)
Title 50--Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of
the Interior (Parts 1--199)
[[Page 199]]
II National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 200--299)
III International Fishing and Related Activities (Parts
300--399)
IV Joint Regulations (United States Fish and Wildlife
Service, Department of the Interior and National
Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of
Commerce); Endangered Species Committee
Regulations (Parts 400--499)
V Marine Mammal Commission (Parts 500--599)
VI Fishery Conservation and Management, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 600--699)
CFR Index and Finding Aids
Subject/Agency Index
List of Agency Prepared Indexes
Parallel Tables of Statutory Authorities and Rules
List of CFR Titles, Chapters, Subchapters, and Parts
Alphabetical List of Agencies Appearing in the CFR
[[Page 201]]
Alphabetical List of Agencies Appearing in the CFR
(Revised as of July 1, 1999)
CFR Title, Subtitle or
Agency Chapter
Administrative Committee of the Federal Register 1, I
Advanced Research Projects Agency 32, I
Advisory Commission on Intergovernmental 5, VII
Relations
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV
Federal Acquisition Regulation 48, 57
Agency for International Development, United 22, II
States
Federal Acquisition Regulation 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Animal and Plant Health Inspection Service 7, III; 9, I
Chief Financial Officer, Office of 7, XXX
Commodity Credit Corporation 7, XIV
Cooperative State Research, Education, and 7, XXXIV
Extension Service
Economic Research Service 7, XXXVII
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Forest Service 36, II
Grain Inspection, Packers and Stockyards 7, VIII; 9, II
Administration
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Natural Resources Conservation Service 7, VI
Operations, Office of 7, XXVIII
Procurement and Property Management, Office of 7, XXXII
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Secretary of Agriculture, Office of 7, Subtitle A
Transportation, Office of 7, XXXIII
World Agricultural Outlook Board 7, XXXVIII
Air Force Department 32, VII
Federal Acquisition Regulation Supplement 48, 53
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
American Indians, Office of the Special Trustee 25, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
[[Page 202]]
Architectural and Transportation Barriers 36, XI
Compliance Board
Arctic Research Commission 45, XXIII
Armed Forces Retirement Home 5, XI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assassination Records Review Board 36, XIV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Blind or Severely Disabled, Committee for 41, 51
Purchase From People Who Are
Board for International Broadcasting 22, XIII
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Chief Financial Officer, Office of 7, XXX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee 45, XXII
Commission
Civil Rights, Commission on 45, VII
Civil Rights, Office for 34, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commerce Department 44, IV
Census Bureau 15, I
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Emergency Management and Assistance 44, IV
Export Administration, Bureau of 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
Foreign-Trade Zones Board 15, IV
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV, VI
National Oceanic and Atmospheric 15, IX; 50, II, III, IV,
Administration VI
National Telecommunications and Information 15, XXIII; 47, III
Administration
National Weather Service 15, IX
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, 37, IV
Assistant Secretary for
Secretary of Commerce, Office of 15, Subtitle A
Technology, Under Secretary for 37, V
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Commercial Space Transportation 14, III
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 5, XLI; 17, I
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining 29, IX
Commission
Consumer Product Safety Commission 5, LXXI; 16, II
Cooperative State Research, Education, and 7, XXXIV
Extension Service
Copyright Office 37, II
Corporation for National and Community Service 45, XII, XXV
Cost Accounting Standards Board 48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Contract Audit Agency 32, I
Defense Department 5, XXVI; 32, Subtitle A;
40, VII
Advanced Research Projects Agency 32, I
Air Force Department 32, VII
[[Page 203]]
Army Department 32, V; 33, II; 36, III,
48, 51
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, I, XII; 48, 54
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
National Imagery and Mapping Agency 32, I
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Contract Audit Agency 32, I
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, XII; 48, 54
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Economic Research Service 7, XXXVII
Education, Department of 5, LIII
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Civil Rights, Office for 34, I
Educational Research and Improvement, Office 34, VII
of
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, 34, III
Office of
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 5, XXIII; 10, II, III, X
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 5, XXIV; 18, I
Property Management Regulations 41, 109
Energy, Office of 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 5, LIV; 40, I, VII
Federal Acquisition Regulation 48, 15
Property Management Regulations 41, 115
Environmental Quality, Office of 7, XXXI
Equal Employment Opportunity Commission 5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary 24, I
for
Executive Office of the President 3, I
Administration, Office of 5, XV
Environmental Quality, Council on 40, V
Management and Budget, Office of 25, III, LXXVII; 48, 99
National Drug Control Policy, Office of 21, III
National Security Council 32, XXI; 47, 2
Presidential Documents 3
Science and Technology Policy, Office of 32, XXIV; 47, II
Trade Representative, Office of the United 15, XX
States
Export Administration, Bureau of 15, VII
Export-Import Bank of the United States 5, LII; 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 5, XXXI; 12, VI
Farm Credit System Insurance Corporation 5, XXX; 12, XIV
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 1
[[Page 204]]
Federal Aviation Administration 14, I
Commercial Space Transportation 14, III
Federal Claims Collection Standards 4, II
Federal Communications Commission 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 5, XXII; 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I
Federal Acquisition Regulation 48, 44
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Federal Energy Regulatory Commission 5, XXIV; 18, I
Federal Financial Institutions Examination 12, XI
Council
Federal Financing Bank 12, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Enterprise Oversight Office 12, XVII
Federal Housing Finance Board 12, IX
Federal Labor Relations Authority, and General 5, XIV; 22, XIV
Counsel of the Federal Labor Relations
Authority
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Board of Governors 5, LVIII
Federal Retirement Thrift Investment Board 5, VI, LXXVI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Fine Arts, Commission on 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of the 45, V
United States
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Services Administration 5, LVII
Contract Appeals, Board of 48, 61
Federal Acquisition Regulation 48, 5
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
General 41, 300
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death 41, 303
of Certain Employees
Relocation Allowances 41, 302
[[Page 205]]
Temporary Duty (TDY) Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grain Inspection, Packers and Stockyards 7, VIII; 9, II
Administration
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 5, XLV; 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services, Office of 45, XIII
Indian Health Service 25, V
Inspector General (Health Care), Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of 5, LXV; 24, Subtitle B
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Equal Opportunity, Office of Assistant 24, I
Secretary for
Federal Acquisition Regulation 48, 24
Federal Housing Enterprise Oversight, Office 12, XVII
of
Government National Mortgage Association 24, III
Housing--Federal Housing Commissioner, Office 24, II, VIII, X, XX
of Assistant Secretary for
Inspector General, Office of 24, XII
Multifamily Housing Assistance Restructuring, 24, IV
Office of
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Secretary, Office of 24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of 24, II, VIII, X, XX
Assistant Secretary for
Human Development Services, Office of 45, XIII
Immigration and Naturalization Service 8, I
Independent Counsel, Office of 28, VII
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Indian Health Service 25, V
Information Agency, United States 22, V
Federal Acquisition Regulation 48, 19
Information Resources Management, Office of 7, XXVII
Information Security Oversight Office, National 32, XX
Archives and Records Administration
Inspector General
Agriculture Department 7, XXVI
Health and Human Services Department 42, V
Housing and Urban Development Department 24, XII
Institute of Peace, United States 22, XVII
Inter-American Foundation 5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission 5, VII
on
Interior Department
American Indians, Office of the Special 25, VII
Trustee
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Land Management, Bureau of 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
[[Page 206]]
National Indian Gaming Commission 25, III
National Park Service 36, I
Reclamation, Bureau of 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board 30, III
of
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Internal Revenue Service 26, I
International Boundary and Water Commission, 22, XI
United States and Mexico, United States
Section
International Development, United States Agency 22, II
for
Federal Acquisition Regulation 48, 7
International Development Cooperation Agency, 22, XII
United States
International Development, United States 22, II; 48, 7
Agency for
Overseas Private Investment Corporation 5, XXXIII; 22, VII
International Fishing and Related Activities 50, III
International Investment, Office of 31, VIII
International Joint Commission, United States 22, IV
and Canada
International Organizations Employees Loyalty 5, V
Board
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 5, XL
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 5, XXVIII; 28, I
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the 45, V
United States
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Property Management Regulations 41, 128
Labor Department 5, XLII
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office 41, 60
of
Federal Procurement Regulations System 41, 50
Labor-Management Standards, Office of 29, II, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of 41, 61; 20, IX
the Assistant Secretary for
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Standards, Office of 29, II, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III, LXXVII; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
[[Page 207]]
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Multifamily Housing Assistance Restructuring, 24, IV
Office of
National Aeronautics and Space Administration 5, LIX; 14, V
Federal Acquisition Regulation 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 5, LXVI; 36, XII
Information Security Oversight Office 32, XX
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information 45, XVII
Science
National and Community Service, Corporation for 45, XII, XXV
National Council on Disability 34, XII
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the 45, XI
Humanities
National Highway Traffic Safety Administration 23, II, III; 49, V
National Imagery and Mapping Agency 32, I
National Indian Gaming Commission 25, III
National Institute for Literacy 34, XI
National Institute of Standards and Technology 15, II
National Labor Relations Board 5, LXI; 29, I
National Marine Fisheries Service 50, II, IV, VI
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV,
VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 5, XLIII; 45, VI
Federal Acquisition Regulation 48, 25
National Security Council 32, XXI
National Security Council and Office of Science 47, II
and Technology Policy
National Telecommunications and Information 15, XXIII; 47, III
Administration
National Transportation Safety Board 49, VIII
National Weather Service 15, IX
Natural Resources Conservation Service 7, VI
Navajo and Hopi Indian Relocation, Office of 25, IV
Navy Department 32, VI
Federal Acquisition Regulation 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Northeast Dairy Compact Commission 7, XIII
Nuclear Regulatory Commission 5, XLVIII; 10, I
Federal Acquisition Regulation 48, 20
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Offices of Independent Counsel 28, VI
Operations Office 7, XXVIII
Overseas Private Investment Corporation 5, XXXIII; 22, VII
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death of 41, 303
Certain Employees
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration 29, XXV
Pension Benefit Guaranty Corporation 29, XL
Personnel Management, Office of 5, I, XXXV; 45, VIII
Federal Acquisition Regulation 48, 17
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
[[Page 208]]
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Postal Rate Commission 5, XLVI; 39, III
Postal Service, United States 5, LX; 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House 1, IV
Fellowships
Presidential Commission on the Assignment of 32, XXIX
Women in the Armed Forces
Presidential Documents 3
Presidio Trust 36, X
Prisons, Bureau of 28, V
Procurement and Property Management, Office of 7, XXXII
Productivity, Technology and Innovation, 37, IV
Assistant Secretary
Public Contracts, Department of Labor 41, 50
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation, Bureau of 43, I
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and 47, II
National Security Council
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I
Smithsonian Institution 36, V
Social Security Administration 20, III; 48, 23
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, 34, III
Office of
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Surface Transportation Board 49, X
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Technology, Under Secretary for 37, V
Tennessee Valley Authority 5, LXIX; 18, XIII
Thrift Supervision Office, Department of the 12, V
Treasury
Trade Representative, United States, Office of 15, XX
Transportation, Department of 5, L
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commercial Space Transportation 14, III
Contract Appeals, Board of 48, 63
Emergency Management and Assistance 44, IV
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
[[Page 209]]
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Surface Transportation Board 49, X
Transportation Statistics Bureau 49, XI
Transportation, Office of 7, XXXIII
Transportation Statistics Brureau 49, XI
Travel Allowances, Temporary Duty (TDY) 41, 301
Treasury Department 5, XXI; 12, XV; 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Community Development Financial Institutions 12, XVIII
Fund
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
International Investment, Office of 31, VIII
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision, Office of 12, V
Truman, Harry S. Scholarship Foundation 45, XVIII
United States and Canada, International Joint 22, IV
Commission
United States and Mexico, International Boundary 22, XI
and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation 43, III
Commission
Veterans Affairs Department 38, I
Federal Acquisition Regulation 48, 8
Veterans' Employment and Training, Office of the 41, 61; 20, IX
Assistant Secretary for
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agricultural Outlook Board 7, XXXVIII
[[Page 211]]
List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which were
made by documents published in the Federal Register since January 1,
1986, are enumerated in the following list. Entries indicate the nature
of the changes effected. Page numbers refer to Federal Register pages.
The user should consult the entries for chapters and parts as well as
sections for revisions.
Title 40 was established at 36 FR 12213, June 29, 1971. For the period
before January 1, 1986, see the ``List of CFR Sections Affected, 1964-
1972, 1964-1972, and 1973-1985,'' published in seven separate volumes.
1986
40 CFR
51 FR
Page
Chapter I
65 Administrative order.....................................7790, 29216
65.271 Table amended..............................................33266
65.400 Table amended...............................................6737
65.431 Table amended...............................................9957
Table amended.................................................25695,
26892, 28225, 30064, 33267, 36692
65.481 Table amended..............................................24657
1987
40 CFR
52 FR
Page
Chapter I
65 Administrative order...........................................41711
65.271 Table amended........................................3801, 16248
65.301 Table amended..............................................17760
65.431 Table amended.........................................7864, 7865
1988
40 CFR
53 FR
Page
Chapter I
65.482 Table amended...............................................4027
65.541 Table revised; eff. 8-30-88................................24939
1989
40 CFR
54 FR
Page
Chapter I
65.50--65.52 (Subpart B) Removed................................25259
65.60--65.62 (Subpart C) Removed................................25259
65.71 Removed.....................................................25259
65.72 Removed.....................................................25259
65.80--65.82 (Subpart E) Removed................................25259
65.90--65.92 (Subpart F) Removed................................25259
65.100--65.102 (Subpart G) Removed..............................25259
65.110--65.112 (Subpart H) Removed..............................25259
65.120--65.122 (Subpart I) Removed..............................25259
65.130--65.132 (Subpart J) Removed..............................25259
65.140 Removed....................................................25259
65.142 Removed....................................................25259
65.151 Removed....................................................25259
65.152 Removed....................................................25259
65.160--65.162 (Subpart M) Removed..............................25259
65.170--65.172 (Subpart N) Removed..............................25259
65.181 Removed....................................................25259
65.182 Removed....................................................25259
65.190--65.192 (Subpart P) Removed..............................25259
65.200--65.202 (Subpart Q) Removed..............................25259
65.210--65.212 (Subpart R) Removed..............................25259
65.220--65.222 (Subpart S) Removed..............................25259
65.230 Removed....................................................25259
65.232 Removed....................................................25259
[[Page 212]]
65.240--65.242 (Subpart U) Removed..............................25259
65.251 Removed....................................................25259
65.252 Removed....................................................25259
65.261 Removed....................................................25259
65.262 Removed....................................................25259
65.280--65.282 (Subpart Y) Removed..............................25259
65.290--65.292 (Subpart Z) Removed..............................25259
65.300 Removed....................................................25259
65.302 Removed....................................................25259
65.310--65.312 (Subpart BB) Removed.............................25259
65.320--65.322 (Subpart CC) Removed.............................25259
65.330--65.332 (Subpart DD) Removed.............................25259
65.340--65.342 (Subpart EE) Removed.............................25259
65.351 Removed....................................................25259
65.352 Removed....................................................25259
65.360--65.362 (Subpart GG) Removed.............................25259
65.370--65.372 (Subpart HH) Removed.............................25259
65.380--65.382 (Subpart II) Removed.............................25259
65.390--65.392 (Subpart JJ) Removed.............................25259
65.400 Removed....................................................25259
65.401 Removed....................................................25259
65.402 Removed....................................................25259
65.410--65.412 (Subpart LL) Removed.............................25259
65.420--65.422 (Subpart MM) Removed.............................25259
65.430 Removed....................................................25259
65.432 Removed....................................................25259
65.440--65.442 (Subpart OO) Removed.............................25259
65.450--65.452 (Subpart PP) Removed.............................25259
65.460--65.462 (Subpart QQ) Removed.............................25259
65.470 Removed....................................................25259
65.472 Removed....................................................25259
65.480 Removed....................................................25259
65.482 Removed....................................................25259
65.490--65.492 (Subpart TT) Removed.............................25259
65.500--65.502 (Subpart UU) Removed.............................25259
65.511 Removed....................................................25259
65.512 Removed....................................................25259
65.520 Removed....................................................25259
65.522 Removed....................................................25259
65.530--65.532 (Subpart XX) Removed.............................25259
65.541 Removed....................................................25259
65.542 Removed....................................................25259
65.550--65.552 (Subpart ZZ) Removed.............................25259
65.561 Removed....................................................25259
65.562 Removed....................................................25259
65.570--65.572 (Subpart BBB) Removed............................25259
65.580--65.582 (Subpart CCC) Removed............................25259
65.590--65.592 (Subpart DDD) Removed............................25259
65.600--65.602 (Subpart EEE) Removed............................25259
67.11 (b)(3) revised..............................................25259
67 Appendices A, B and C revised..................................25259
1990--1991
(No Regulations Published)
1992
40 CFR
57 FR
Page
Chapter I
66.3 (g) through (l) redesignated as (h) through (m); new (g)
added.......................................................5328
66.6 (b) revised...................................................5329
66.72 (a) amended..................................................5329
66.81 (b) amended; (c) revised.....................................5329
66.95 (c) amended..................................................5329
70 Added..........................................................32295
70.1 (f) added....................................................57347
1993
40 CFR
58 FR
Page
Chapter I
69 Authority citation revised.....................................43043
69.11 (a) and (b) added...........................................43043
70.1 (f) removed..................................................34375
1994
40 CFR
59 FR
Page
Chapter I
68 Added...........................................................4493
70 State operating permit program approvals.......................48802
[[Page 213]]
Regulation at 59 FR 48802 withdrawn............................60561
Appendix A added; interim......................................55820
Appendix A amended.................59660, 61552, 61827, 62327, 66740
71 Added..........................................................59924
1995
40 CFR
60 FR
Page
Chapter I
65 Removed........................................................33925
69.11 (c) added...................................................48038
70 Appendix A amended.......................................1744, 2534,
3770, 4568, 12137, 12483, 15069, 21723, 35338, 36069, 36072, 39864,
40104, 42046, 45673, 46774, 47297, 49347, 50108, 52336, 53875, 55466,
57191, 57352, 57357, 57361, 57837, 62034, 62758, 62762, 62998, 63634
Regulation at 60 FR 2534 eff. date corrected to 3-13-95.........8772
Regulation at 60 FR 2534 confirmed.............................13046
Appendix A amended; interim....................................25146
Appendix A amended; eff. 7-10-95...............................30195
Appendix A amended; interim; eff. 7-17-95......................31641
Appendix A amended; eff. 8-22-95...............................32606
Appendix A amended; eff. 7-24-95...............................32612
Appendix A amended; eff. 7-26-95...............................32916
State operating permit approvals...............................57186
1996
40 CFR
61 FR
Page
68 Authority citation revised.....................................31717
68.2 Added........................................................31731
68.3 Amended; eff. 8-19-96........................................31717
68.10 Added; eff. 8-19-96.........................................31717
68.12 Added; eff. 8-19-96.........................................31718
68.15 Added; eff. 8-19-96.........................................31718
68.20--68.42 (Subpart B) Added; eff. 8-19-96......................31718
68.48--68.60 (Subpart C) Added; eff. 8-19-96......................31721
68.65--68.87 (Subpart D) Added; eff. 8-19-96......................31722
68.90--68.95 (Subpart E) Added; eff. 8-19-96......................31725
68.100--68.130 (Subpart C) Redesignated as 68.100--68.130
(Subpart F); eff. 8-19-96..................................31717
68.150--68.190 (Subpart G) Added; eff. 8-19-96....................31726
68.200--68.220 (Subpart H) Added; eff. 8-19-96....................31728
68 Appendix A added; eff. 8-19-96.................................31729
69.13 Added.......................................................58289
(a)(2), (b), (c), (d)(1) and (3) corrected.....................66077
69.21--69.22 (Subpart B) Heading revised..........................58291
69.22 Added.......................................................58291
(a)(2), (b), (c)(1), (2), (d) and (e)(1) corrected.............66077
69.31--69.32 (Subpart C) Heading revised..........................58292
69.32 Added.......................................................58292
(a)(2), (b), (c)(2), (3), (d), (e)(1) and (3) corrected........66077
70.4 (d)(3) introductory text and (ii) revised; eff. 7-22-96......31448
(d)(2) revised.................................................56370
70 Appendix A amended...2722, 2939, 3832, 4220, 4224, 5707, 7076, 8876,
11739, 13103, 16065, 18088, 18968, 24461, 24720, 31443
Appendix A corrected............................................7073
Appendix A amended; eff. 7-5-96................................20155
Appendix A amended; eff. 7-25-96...............................32699
Appendix A amended.........34739, 39343, 39601, 39883, 45336, 51370,
51372, 55923, 56370, 57594, 60034, 64475, 64635
Regulation at 61 FR 45336 withdrawn............................56631
Appendix A corrected...........................................63928
71 Operating permits..............................................39877
71.1--71.12 (Subpart A) Added; eff. 7-31-96.......................34229
1997
40 CFR
62 FR
Page
64 Added..........................................................54940
68 Interpretation.................................................45134
68.130 Tables 1 and 2 amended.....................................45132
68 Appendix A amended.............................................45132
69.11 (d) added...................................................44416
69.41..............................................................61205
70 Guidance availability..........................................63662
70.6 (a)(3)(i)(A), (c)(5)(iii) and (iv) revised; (c)(5)(v)
removed....................................................54946
[[Page 214]]
70 Appendix A amended.....1399, 7941, 8883, 13833, 26407, 31519, 33011,
37516, 45167, 45734, 62951
71 Guidance availability..........................................63662
71.6 (a)(3)(i)(A), (iii)(C), (c)(5)(iii) and (iv) revised;
(c)(5)(v) removed..........................................54947
1998
40 CFR
63 FR
Page
64 Guidance availability..........................................63662
68 Delagation request.............................................55954
68.3 Amended........................................................644
68.10 (f) added.....................................................645
68.115 (b) introductory text and (2) revised; (b)(3) removed;
(b)(4), (5) and (6) redesignated as (b)(3), (4) and (5)......645
68.130 (a) removed; (b) and (c) redesignated as new (a) and (b)
645
69 Authority citation revised.....................................49465
69.51 (Subpart E) Added...........................................49465
70 Regulation at 61 FR 31443 eff. date corrected to 2-9-98.........6494
70.5 (c) reinstated in part; CFR correction.......................64869
70 Appendix A amended...............................13346, 40057, 50773
1999
(Regulations published from January 1, 1999, through July 1, 1999)
40 CFR
64 FR
Page
68.2 (c) added....................................................29170
68.3 Amended........................................................979
68.10 (d)(1) revised................................................979
68.25 (e) revised; (f), (g) and (h) redesignated as (g), (h) and
(i); new (f) added.........................................28700
68.42 (b)(3) revised; (b)(4) through (10) redesignated as (b)(5)
through (11); new (b)(4) added...............................979
68.79 (a) revised...................................................979
68.150 (e) added....................................................979
68.151 Added........................................................979
68.152 Added........................................................980
68.160 (b)(1), (7) and (12) revised; (b)(14) through (18) added
980
68.165 (b) revised..................................................980
68.170 (b) revised..................................................980
68.175 (b) revised..................................................980
68.180 (b) revised..................................................980
69.51 (Subpart E) (c) revised.....................................34133
70 Appendix A amended..............................................8526
Appendix A amended; eff. 7-6-99................................23779
Appendix A amended; eff. 8-16-99...............................32436
71.2 Amended.......................................................8262
71.3 (e) added.....................................................8262
71.4 (a) introductory text, (b), (f), (h) and (i) introductory
text revised; (j) amended...................................8262
71.8 (a) and (d) revised...........................................8263
71.9 (p) added.....................................................8263
71.11 (l)(7) added.................................................8263