Response: Under the definitions for " regulated air pollutant" and " regulated pollutant ( for presumptive fee calculation)" in Section 70.2 of the final rule, both TSP and PM10 are " regulated pollutants" ( the terminology of the proposed rule). Any pollutant for which a NAAQS is promulgated and any pollutant subject to a standard promulgated under Section 111 ( NSPS) are included in both definitions. The NAAQS for particulate mater is currently expressed as PM 10, although some SIPs have not yet been revised to reflect the change from TSP to PM 10. Also, as the commenter noted, most emissions standards in the NSPS regulations are written for TSP ( the regulations generally refer to particulate matter, but the applicable test method, Method 5, measures the TSP species). However, the EPA expects that it will only count particulate matter once, that is, either TSP or PM 10 for purposes of demonstrating if a State's permit program has recovered fees in the amount of $ 25/ ton or greater for all actual emissions of regulated pollutants ( for presumptive fee calculation).

3.4.3 Major Sources Not Subject to Any Applicable Requirement Comment: Three State agency commenters ( IV D 125, IVD 261, IV D 367) argued that a source that is major by virtue of the quantity of emissions of particular pollutants and whose emissions are not regulated by a standard or requirement under the Act should be required to obtain a permit; otherwise, the permitting authority will lose the ability to track the source and to develop regulations and standards for the source. Many industry commenters ( IV D 49, IV D 67, IV D 77, IV D 86, IV D 100, IV D 161, IV D 162, IV D 169, IV D 173, IV D 174, IV D 189, IV D 200, IV D 205, IV D 206, IV D 208, IV D 318, IV D 330, IV D 366) argued that EPA should not be issuing permits for sources that qualify as major solely due to the level of their unregulated emissions). Three industry commenters ( IV D 189, IV D 200, IV D 318) stated that there is no useful purpose in permitting such sources until MACT standards are promulgated. Several industry commenters ( IV D 189, IV D 205, IV D 206) argued that there should be no fees imposed on units for which no emission limit exists.

Response: Proposed Section 70.3( a)( 1) requires all major sources to obtain a permit. Certain sources considered as " major" under the Act may, in fact, not be subject to any applicable requirements at the time a permit application is required for submission. This could occur in several ways. For instance, Section 112( a)( 1) of the Act defines major sources as those emitting more than 10 tons of any one pollutant listed under Section 112( b) or 25 tons of any combination of these pollutants. Some major sources may be required to obtain a permit due to emissions of a single Section 112( b) pollutant before a standard is promulgated for that pollutant. As well, some major sources in attainment areas ( e. g., those emitting more than 100 tpy of a criteria pollutant, such as NO x) are not subject to any applicable requirements because the SIP currently does not regulate such sources.

Section 70.3( a)( 1) of the regulation, which requires all major sources to obtain a Part 70 permit, remains unchanged. Section 502( a) of the Act clearly requires all major sources to obtain a permit. In addition, this section prohibits EPA from exempting any major source from this requirement. However, under appropriate circumstances, States may choose to issue general permits to such sources to reduce the paperwork burden.

Requiring permits for all major sources also furthers policy goals. Although some major sources in attainment areas may not be subject to applicable emission limits in the SIP at the time of submittal of a permit application, EPA believes that requiring these sources to obtain permits would enable the permitting authority to track them while concurrently developing a standard or revision to the SIP that would subject these sources to an applicable requirement in the near future.

In regard to major sources subject to regulation under Section 112, the Agency acknowledges that some of these sources lacking any applicable requirements may have to obtain permits because standards may not be promulgated by the time of initial permit issuance, but it believes that this number of sources will be relatively small, because most major sources under Section 112 likely would be regulated elsewhere under the Act. Many of the pollutants regulated under Section 112 are also VOC's or PM and are regulated by SIP regulations designed to maintain or attain the NAAQS for ozone or PM 10.

3.5 FUGITIVE EMISSIONS Comment: Twelve industry commenters ( IV D 88, IV D 132, IV D 162, IV D 164, IV D 169, IV D 188, IV D 208, IV D 271, IV D 272, IV D 313, IV D 320, IV F 03e) disagreed with the inclusion of fugitive emissions in a Title V permit. They indicated that accounting for every fugitive emission in the permit application is overreaching under Section 70.3. An industry commenter ( IV D 314) supported this position, stating that small emission units should not be included in the permit application. One State agency commenter ( IV D 91) said that States should have the flexibility to determine whether fugitive emissions should be included. One industry commenter ( IV D 209) suggested that fugitive emissions, especially fugitive emissions of HAPs, should not be subject to the permit program. This commenter argued that fugitive emissions of HAPs should not be included until EPA defines de minimis for the pollutants.

Response: The Act requires fugitive emissions to be counted for purposes of major source applicability in nonattainment areas as defined in Title I [ where major sources emit less than 100 tons per year ( tpy)], for Section 112 major sources, and for major sources in attainment areas ( i. e., sources emitting more than 100 tpy) belonging in one of the source categories that have previously been subjected to the rulemaking required in Section 302( j) of the Act ( 45 FR 52676 August 7, 1980), and subsequently listed in the definition of major source in this part. It was also proposed that any source must include in its application a description of all emission units, whether subject to any applicable requirement under the Act or not, along with an accounting of all emissions of regulated pollutants from these units. All fugitive emissions were to be included in this accounting.

The final rule does not change the way that fugitive emissions are to be accounted for in making major source applicability determinations, in permit applications, and in assessing fees, except that exemptions for insignificant activities or emissions may now be established by the permitting authority, as described in Section 70.5( c). The final rule does clarify how fugitives are to be incorporated into each of these aspects of the permitting process, however.

The Administrator has no basis nor additional criteria within Title V to distinguish between fugitive and nonfugitive ( stack) emissions for purposes of defining major source status. Section 502( a) of the Act requires that major sources be reviewed according to definitions contained in other sections of the Act. These definitions ( with the exception of Section 302( i) of the Act) do not differentiate between fugitive and stack emissions. Thus, Title V does not make this distinction, either. " Major stationary source," as defined in Section 302, requires a rulemaking before allowing fugitives to count in determining whether a source would be major.

Similarly, the Administrator finds no basis or reason to treat fugitive emissions any differently once the applicability determination has been made and a source is subject to the permit program. Title V requires that each permit ensure compliance by the source with all applicable requirements, without any distinction regarding fugitive emissions. However, only to the extent that the underlying applicable requirements themselves apply to fugitives must the source address fugitive emissions in the permit. This approach is consistent with the Alabama Power decision, which in part ruled that once a source is subject to review as a major emitting facility, all requirements apply equally to fugitive emissions as well as to emissions from industrial point sources. Although several comments were received suggesting the contrary, fugitives are to be included in all aspects of the permitting process in order to remain consistent with other air quality programs, namely PSD, NSR, and SIP programs.

Comment: Seven industry commenters ( IV D 99, IV D 100, IV D 159, IV D 205, IV D 206, IV D 369, IV F 01p) did not want estimates of fugitive emissions to be used for fee determinations. The opposite view was held by two other industry commenters ( IV D 313 and IV D 404).

Response: With regard to fees, States may assess fees for fugitive emissions, but are not required to do so. The Act allows States to have this flexibility, and the commenters have not explained why EPA should take this policy choice away from the States. However, States that rely on the $ 25 per ton presumptive minimum fee calculation must base their calculation on emissions of all regulated pollutants ( for presumptive fee calculation)  Section 502( b)( 3) does not exclude fugitive emissions from this calculation. For this reason ( among others) States may need to collect information on fugitive emissions above the insignificant levels discussed previously.

Comment: State agency commenter IV D 233 suggested that the permitting authority should have latitude to select methods to quantify applicable fugitive emissions. A second State agency commenter expressed concern that there will be no national consistency for measuring and determining fugitive emissions.

Response: EPA recommends that permitting authorities select or establish methods by which to quantify fugitive emissions when Federal guidance is unclear or unavailable. Historically, EPA manual AP 42, Compilation of Emission Estimation Factors, has been the recognized source for guidance on estimating air emissions, including fugitive emissions; this is not expected to change, as this manual is continually being updated and expanded. However, in order to promote consistent approaches to emission estimation on a State wide basis when there is uncertainty as to a nationally accepted estimation method, some States have provided guidance or developed their own emission factors for fugitive sources or fugitive emitting activities that commonly are permitted in the State.

Comment: Two industry commenters ( IV D 238 and IV D 156) supported the exclusion of mining fugitive emissions from the major source determination and added that EPA should clarify that major sources such as milling facilities and coal production plants, which are adjacent to mines, will not draw mines into the permitting process.

Response: A discussion of when fugitive emissions must be counted in determinations of major source status under Part 70 is found above. Of interest to sources involved in mining activities are the requirements that fugitive emissions must be counted when the source is: ( 1) regulated by a standard promulgated under Section 111 ( NSPS), with respect to those air pollutants that have been regulated for that category ( definition of major source, paragraph xxvii), and ( 2) located in nonattainment areas ( Title I of the Act Amendments). Note that the NESHAPs for metallic and nonmetallic minerals processing plants would not bring fugitives emanating from haul roads, blasting, and truck loading in an open pit, for example, into the calculation of major source status, but would include fugitive emissions from crushers, with their associated conveyors, and railcar loading stations ( see Part 60, Subparts LL and OOO). Note also that Congress did not specifically exclude fugitive emissions from counting toward major source status in nonattainment areas where a major source is defined as emitting less than 100 tpy and that this will, most likely, only affect a few mining operations located in severe particulate nonattainment areas.

The question of what constitutes a major source under Part 70 has been answered in detail in Section 3.2.1 of this document. This discussion also holds true for milling facilities and coal production plants. Consistent with EPA's past practice under new source review ( NSR), the regulations require all commonly owned or controlled pollutant emitting activities on contiguous or adjacent properties to obtain an operating permit if they are within the same major ( two digit) SIC group, assuming the aggregated activities emit enough pollutants to exceed the applicable emissions thresholds provided in the Act. In addition, any equipment used to support the main activity at a site would also be considered part of the same major source, regardless of the two digit SIC code for that equipment 3.6 OTHER Comment: One industry representative ( IV F 02e) said that those emission points currently permitted as separate sources under existing State permit programs should not be required to reapply for a joint permit under the new program unless they meet the requirements proposed for major sources or for HAPs.

Response: Title V does not require permitting authorities to issue permits on a facility wide basis ( one permit for the entire facility) or on an emissions unit basis ( separate permits for each emissions unit at a facility). The selection of one of these approaches is discretionary with the permitting authority. It is also a requirement of Title V and the Part 70 regulations that all sources subject to the program must submit applications and that the applications must completely describe all emissions and emissions units found at the facility, whether there is an applicable requirements that applies or not, except that only a list need be included in the application for certain emissions or activities found at the facility that are identified by the State as insignificant.

Comment: Two industry commenters ( IV D 135 and IV D 204) suggested waivers from NSPS and MACT requirements be granted for sources researching innovative technology, because of its potential of achieving either a greater or a comparable emission reduction at lower cost.

Response: Title V of the Act does not provide for waivers from NSPS and MACT requirements due to innovative technology research. Future rulemakings may address this issue.

Comment: Industry commenter IV D 331 questioned the applicability of the rule to ozone transport regions not located within a nonattainment area. He indicated that the rule is ambiguous on whether sources in such areas would have to obtain a Title V permit.

Response: The Part 70 rule applies to sources located in attainment areas, nonattainment area, and interstate transport regions as long as the sources otherwise meet the applicability requirements of Section 70.3. Furthermore, Section 176A of the Act makes no distinction between attainment or nonattainment areas when describing what States or portions of States may be included in an interstate transport region. Comment: One State commenter ( IV D 301) requested that EPA allow States the flexibility to extend applicability of the Title V program beyond what is listed in the rule. The commenter indicated that States may want to cover certain sources to maintain the NAAQS.

Response: States may only recommend to EPA that Title V applicability be extended to specific source categories. The statute gives EPA, and not the States, the authority to extend applicability to Title V by rule. However, States are free to require State permits from sources not covered by Title V.

Comment: One industry commenter ( IV D 184) argued that temporary units should not be subject to best available control technology ( BACT) and MACT review each time the location is changed. He believed that 20 day notice was too long.

Response: The final rule has been changed to require a 10 day instead of 20 day notice each time the location of a temporary source is changed to be consistent with the existing PSD notification requirement. The final rule does not require the permitting authority to review the temporary source permit for each new location, since the required notification will inform the permitting authority of the present location of each temporary source. When temporary units change location, they are not required to undergo a new BACT and MACT review, however, any analysis necessary to assure compliance with the Act would have to be performed during the initial permit review before the final permit is issued. Section 504( e) of the Act requires that such sources have a permit that assures compliance with all requirements of the Act at all authorized locations, including requirements relating to ambient standards, increments, and visibility.

Comment: Industry commenter IV D 258 suggested that sources be subject to permitting only if they emit regulated pollutants in greater than a de minimis amount of 2000 pounds per year.

Response: Section 70.5( c) of the final rule now give States the discretion to propose exemptions for insignificant activities or emissions in their State program submittals. However, a source that is subject to permitting must submit an application that completely describes all emissions of regulated air pollutants and the emissions units that emit them, except for insignificant emissions or activities. Insignificant activities exempted because of size or production rates must be listed in the application for identification purposes, though not thoroughly described. Emissions that have been permanently exempted by rule by the Administrator, as well as other activities and emissions levels approved as insignificant, need not be included in the application.

It is most likely that a 2000 lb source as described by the commenter would be a nonmajor source under Part 70. The Administrator has temporarily exempted ( deferred) most nonmajor sources from the Part 70 program during the early stages of the program, at State discretion, and subject to opt in permitting by the source. Moreover, the final rule in Section 70.3 only includes nonmajor sources subject to Sections 111, 112, 129, and Title IV of the Act in the Part 70 program. 4.0 COMMENTS AND RESPONSES ON SECTION 70.4: STATE PROGRAM SUBMITTALS AND TRANSITION 4.1 SUMMARY OF COMMENTS ON SECTION 70.4 Various organizations commented on initial program submission requirements, interim and partial programs, EPA review, individual permit transition, program revision, and the information sharing provisions of Section 70.4. The transition plan provisions drew the greatest number of comments by far. The submittal date, State response, effective date, and administration and enforcement provisions of Section 70.4 drew no comments. In addition to the proposed provisions, comments addressed equivalent programs, the need to include State statutes, model permits, provisions to challenge permits, State accountability for program management, delegation of authority to local programs, the relationship of the State program to Part 71 programs, delegation of program administration, and input from affected entities. Many commenters addressed the issue of whether State and local program requirements can be more stringent than Federal requirements, and whether such requirements are federally enforceable. Their comments are summarized in Chapter 6.0 in the discussion on Section 70.6, Permit Content. Comments on lapsing permits are summarized in Chapter 6.0. While a few comments on fees are included in this chapter, the bulk of the fee comments are recorded in Chapter 9.0, which contains comments and responses on Section 70.9, Fee Determination and Certification.

4.2 ELEMENTS OF THE INITIAL PROGRAM SUBMISSION 4.2.1 Inspection Provisions Comment: Five groups ( IV D 53, IV D 113, IV D 303, IVD 343, IV D 364) commented on the provisions for inspection. Several State agencies ( IV D 53, IV D 113, IV D 343, IV D 364) opposed including inspector certification criteria in the program submittal.

Response: The Administrator agrees that including inspector certification criteria is not necessary and this requirement has been deleted from Section 70.4( b)( 4)( ii).

Comment: One industry group ( IV D 303) stated that EPA should disallow use of contractors for inspection, adding that Federal courts in the 6th and 10th circuits had not supported EPA's authority to use contractors for inspection. Response: The Part 70 regulations do not specify that contractors will be used for inspections.

4.2.2. Resources for the Operating Permit Program Comment: Two State commenters ( IV D 91 and IV D 332) insisted that States must demonstrate that the programs are adequately staffed; one of these commenters ( IV D 91) further indicated that States must demonstrate that adequate personnel are available to do the permitting.

Response: Section 502( b)( 4) of the Clean Air Act ( Act) requires that permitting authorities make provisions for adequate personnel to administer the program. In Section 70.4( b)( 8), EPA requires the program submittal to include a statement that adequate resources, to include personnel and funding, are available to administer the program. Section 70.4( b)( 8)( ii) specifically requires a description of the agency staff, including the number, occupation, and general duties of the employees. The Administrator does not feel any further detail in this requirement is needed. When program submittals are reviewed by EPA, they will be examined to see if adequate staff is available for all functions of the program.

Comment: A State agency ( IV D 398) commented that air pollution control officials must be given a clear method of securing adequate resources to carry out the various permitting functions. Response: Section 502( b)( 3)( A), ( B), and ( C) of the Act requires permitting authorities to collect fees from the regulated sources as a means to provide adequate funding for the permit program. The Act does not mandate that EPA direct the permitting authorities to appropriate the fees that are collected in a specific manner. The EPA will not dictate in advance the method of allocating the fees that are collected, but will review the program plans to determine if staffing is adequately provided.

Comment: One industry commenter ( IV D 124) believed that States should be required to allow affected businesses to comment on the cost of the proposed State program, and should also supply a detailed cost breakdown for public comment purposes.

Response: The program submittal will be available for public inspection prior to EPA approval, and a notice of EPA's approval will be published. Sources will have an opportunity to examine the permit fee structure, which will be a detailed cost breakdown, unless the permitting authority adopts the $ 25 per ton per year structure. Where the permitting authority adopts a fee schedule that results in a collection in the aggregate of $ 25 per ton per year adjusted for the CPI, EPA will presume the fee schedule to be adequate. Even the $ 25 per ton per year structure can be challenged if a commenter can demonstrate it is inadequate, excessive, or otherwise inappropriate.

Comment: Two cement industry groups ( IV D 137 and IVD 138) commented that State programs should be required to exempt the cement industry from fees, as it is already overburdened with regulation. Response: The EPA will not take action to exempt the cement industry from the permit fee program; however, permitting authorities are free to do so, provided the requirements of Section 70.9 are met.

4.2.3 Requirement to Report Violations Comment: Several industry commenters ( IV D 86, IV D 88, IV D 106, IV D 149, IV D 200, IV D 202, IV D 208, IV D 325) urged that EPA drop the requirement for reporting the number of violations as an indicator of enforcement. These commenters argued that such a reporting requirement would lead to the development of a " quota" system, and would not serve to encourage enforcement. One environmental commenter ( IV D 170) disagreed, however, stating that enforcement activities should be submitted to EPA annually.

Response: The Administrator believes it necessary for permitting authorities to report the relevant enforcement action information required in Section 70.4( b)( 9). The Administrator requires this information on enforcement activities to fulfill his duty under Section 502( i) to ensure that each State is adequately administering and enforcing its permit program.

4.2.4 Transition Plan Provisions Comment: Several groups commented on when the application submittal process should begin under the transition plan and on how long the process should be. Two commenters ( IV D 113 and IV D 219) questioned whether the clock for submission of permit applications begins when the State program has full or interim approval. Four industry commenters ( IV D 100, IV D 134, IV D 207, IV D 330) and one State agency ( IV D 277) supported the submittal of applications three years after full program approval. Two State agencies ( IV D 125 and IV D 245) and one industry commenter ( IV D 100) interpreted the proposed rule to mean that all permit applications were due 12 months after full program approval. Two industry commenters ( IV D 156 and IV D 331), however, said that a one year application period is unreasonable. One industry commenter ( IV D 124) interpreted the proposed rule to imply that the State could require permit applications one day after a source becomes subject, which they considered impossible. Yet another industry commenter ( IV D 106) requested clarification on when the permit applications are due.

Response: Section 502( a) of the Act states that it shall be a violation for a source to operate without a permit. This provision of the Act indicates that a source becomes subject to the operating permit program when operations commence. However, Section 503( a) of the Act provides that any source is subject to the permitting program on the later of two dates the effective date of the State's Part 70 program ( whether full or interim approval), or when the source is subject to Section 502( a). Additionally, Section 503( c) of the Act requires an application with a compliance plan to be submitted not later than 12 months after the date on which the source becomes subject to the permitting program that is approved or promulgated pursuant to Title V, unless the permitting authority has set an earlier date. These deadlines are to be included in the Part 70 program submittal for review and approval by EPA.

Section 503( d) of the Act allows a source to operate, and not be in violation of the Act, prior to the time it must submit an application under Section 503( c). Therefore, a subject source may wait until 12 months after it begins operation or after State program approval, whichever date is later, to submit its operating permit application. This prevents the source from being subject to an enforcement action for failure to have an operating permit during the 12 month period that it operates before it applies for a permit.

Section 502( h) makes clear that the effective date of a full, partial, or interim program is the date the program is approved by EPA. Therefore, the period for submittal of applications ( 12 months or such earlier date as is set by the State) begins when the State program has either full, partial, or interim approval. However, a source need not submit an application if it is not covered by a program receiving partial or interim approval.

The transition plan provisions of Section 70.4( b)( 11) only affect the time allowed for a State to act on an application. Consistent with Section 503( c), the State may set a period of less than 12 months for the submittal of applications. However, the State may not set a period longer than 12 months, even for those sources subject to a transition plan.

Comment: Two industry commenters ( IV D 127 and IV D 199) agreed that the transition plan was needed to process the initial permit applications. A local government ( IV D 107), however, stated that a transition plan was not needed to process the first wave of applications, that perhaps the permitting authority could commit only to processing a certain number of permits each quarter.

Response: Section 503( c) of the Act provides, in part, that the permitting authority shall establish a phased schedule for acting on permit applications submitted within the first full year after the effective date of a permit program ( or a partial or interim program). The transition plan provided for in the proposed Part 70 regulations is a program element to ensure that permitting authorities meet the requirements of Section 503( c). The transition plan must ensure that all Part 70 sources submit applications within the first year of the effective date of the program and that at least one third of such permits will be acted on annually over a period not to exceed three years after the effective date. The transition plan provisions of Section 503( c) are designed to synchronize resource growth in the agency with the initial workload of processing permit applications and issuing permits. A State that could act finally on applications on a more expedient schedule would of course meet the transition plan requirements of Section 503( c).

Comment: One State proposed that the requirement for a permitting authority to " act on" a permit [ as discussed in the transition plan requirement in Section 70.4( b)( 11)] should mean begin review of, rather than issue or deny the permit. In this way, the permitting authority would begin reviewing all applications within three years, and permit issuance could go beyond the three years. One advantage would be to spread out renewals over a period longer than three years.

Response: The Administrator interprets the second reference to " act on" in Section 503( c) to mean that activity beyond application approval or disapproval must take place in each of the three years, because the language establishing that one third of the permits will be acted on annually refers to permits, not to permit applications. The Administrator interprets this to mean the act of issuing permits. The transition plan provisions of Section 503( c) supersede the otherwise applicable 18 month timeframe for permit issuance. If the phrase " act on" were interpreted to mean something less than taking final action on the permit, then Section 503( c) would effectively impose no deadline for issuance or denial of applications submitted within the first year, a result plainly inconsistent with the purposes of Title V. Permitting authorities must, therefore, go beyond just approving or disapproving permit applications in each of the first three years. They must also go beyond making draft permits for one third of the sources available for public inspection in each of the three years.

Because the permitting authority must take final action on one third of the applications submitted during the first year in each of the first 3 years, it follows that all applications submitted within the first year must be issued or denied within 3 years of program approval. This is a necessary consequence of EPA's interpretation of the phrase " act on" in Section 503( c) to mean " final permit action." In addition to this statutory language, EPA believes it is unreasonable not to issue permits within a 3 year period. A period longer than three years would be inconsistent with Section 502( b)( 6), which provides for streamlined permit application processing and review of permit actions, and with Section 502( b)( 7), which protects against unreasonable delay in acting on permit applications. In addition, if permits were issued after the three year period, some of the applications would be more than two years old by the time the permits were issued.

Comment: A State agency ( IV D 245) interpreted the transition plan provisions to require that all applications should be submitted within one year of program approval, and pointed out that, if this were true, it would be difficult to process one third of the applications by the end of the first year after program approval, as applications would not have been submitted. Several industry commenters ( IV D 100, IVD 125, IV D 203, IV D 205, IV D 206, IV D 207, IV D 277, IV D 330) and one State agency ( IV D 125) suggested that the application submittal period should not begin until the program has full approval. An industry commenter ( IV D 152) believed that sources should be allowed to submit applications before EPA approval of the State program, and that these permits should remain in effect after program approval.

Response: Section 503( c) of the Act requires sources to submit applications within one year of the effective date of permit program approval, or such earlier date as the permitting authority may establish. Section 503( c) further requires that a phased schedule be established for acting on at least one third of the applications submitted within the first full year after program approval. It may be particularly difficult for the State to act on one third of the permit applications submitted during the first year, as many of the applications may not be submitted until nearly one year after program approval, leaving too little time for the State to perform all required notification and public participation procedures and issue the permit before the first year expires.

The EPA suggests, but does not mandate, that States require some applications to be submitted before EPA's approval of the Part 70 program. Upon Part 70 permit program submittal to EPA, but before final approval by EPA, the program would most likely be enforceable by the State under State law and permit application submittal could be required. These applications would not be considered Part 70 applications, but assuming the program were approvable, they would meet the requirements of Part 70. Upon program approval, the applications could be deemed to have met Part 70 and could be issued under the approved procedures in the operating permit program.

States will be best able to judge when applications could first be developed and required so as to reduce at least some aspects of the permitting workload otherwise occurring after EPA approval of the State's program.

Comment: A State agency ( IV D 364) interpreted the transition plan provisions to mean that no more than one third of the applications should be processed the first year, and indicated that this was not advisable.

Response: Section 503( c) indicates that " at least onethird of the applications should be acted on annually over the three year period after program approval. The Administrator interprets this to mean the permitting authority must act on at least one third the first year. The permitting authority may act on more the first year such that less than two thirds are left for the remaining two years. At the end of the second year, at least two thirds should be acted on.

Comment: Another industry commenter ( IV D 208) indicated that States should not be able to require emission inventories until full approval of the permit program.

Response: Emissions related information is required to be included in Part 70 permit applications and a State may require, under State law, permit application submittal before Part 70 permit program approval by EPA.

Comment: A State commenter ( IV D 398) believed that EPA should specify how nonmajor sources would be addressed in the transitional plan, because permitting of nonmajor sources may be temporarily or permanently deferred.

Response: If permitting of nonmajor sources is deferred temporarily, the permit applications will not be submitted until after the deferral period passes. This time will be beyond the period covered by the transition plan. States may choose to defer only some categories of non major sources. States may also choose to defer non major sources for less than the period allowed under part 70. States will have discretion as to how to prioritize the processing of applications from non major sources that are not deferred from the program, provided, of course, that the requirements of Section 70.4( b)( 11) are met. Comment: A State agency ( IV D 301) commented that States should permit classes of sources in phases and that applicants and regulatory agencies should be advised of the schedule for permitting so that both could anticipate when applications would need to be ready. An industry commenter ( IV D 127) suggested that the application process be adopted gradually. Another industry commenter ( IV D 331) questioned the three year period to phase in applications, fearing that industries operating in several States would be disadvantaged if there was no uniform guidance to States on how to prioritize permit applications by source category.

Response: Permitting authorities may design the transition plan as they wish. The EPA will not dictate specifics; rather, the plan should be designed consistent with local conditions.

Comment: One State ( IV D 212) and one local government agency ( IV D 362) each believed that language should be added to distinguish between the initial permit application and subsequent applications, using the terms " first issue" and " renewal permit."

Response: The Administrator does not believe that use of the term " first issue" is necessary.

4.2.5 Other Comments on Initial Program Submittals Comment: Commenter ( IV D 410) stated that permit programs with provisions to deny applications should be approvable, i. e., a program that denies an application if the source cannot demonstrate the ability to comply with all applicable regulations.

Response: Such provisions for denying applications are required as part of a Title V permit program. Section 502( b)( 1) provides that among the minimum elements of a permit program to be administered by any air pollution control agency are requirements for permit applications, including standard form and criteria for determining in a timely fashion the completeness of applications. If an application does not meet the completeness criteria or is not submitted in a timely fashion, as described in Section 70.5, the application must be denied.

Once the application is deemed timely and complete, and has been fully reviewed, the permitting authority at that point has the option of denying the application. The EPA will not in this rule dictate the circumstances under which a permitting authority might justifiably deny a permit application. However, such grounds could include the failure to submit requested additional information, the misrepresentation of facts or the failure to fully disclose all relevant facts, the failure to submit an adequate compliance plan and schedule of compliance, or the failure to assure operation in compliance with all applicable requirements. The Act is clear in providing, however, that once the permitting authority has taken the final action of denying the application, any continued operation by the source will be a violation of Section 502( a).

In requiring the submittal of compliance plans with the application and schedules of compliance in operating permits, Congress provided a mechanism for allowing non complying sources to obtain a permit and continue operation. State laws that prohibit the issuance of permits to non complying sources but that nevertheless allow those sources to continue operation would therefore seem to be inconsistent with Title V. However, as stated in the preamble to the Part 70 regulations, EPA will consider State programs containing elements substantially equivalent to those required under Part 70.

Comment: Commenter ( IV D 200) believed that provisions for judicial review of the final decisions on permits are required ( IV D 200).

Response: Opportunity for judicial review is provided in Section 70.4( b)( 3)( x), consistent with Section 502( b)( 6), for the applicant, any person who participated in the public comment process, and anyone else who can obtain judicial review under State law.

Comment: One State agency ( IV D 249) requested clarification of whether " final permit" for purposes of providing State judicial review is when the draft proposed permit is issued by the State or when it has been reviewed by EPA.

Response: A permit is considered final after EPA review and the permit is issued.

Comment: One State agency ( IV D 108) commented that their legislature was not in session until February 1992 and that some requirements of the operating permits program might require action by the State legislature. In such a case, the commenter argued, it would be unfair for EPA to consider the State unable to meet its permitting requirements.

Response: The mechanism of interim approvals allows permitting authorities to begin program operation while program additions are made, such as legislative authority, provided the program substantially meets the requirements of Title V. The EPA has encouraged States to consider the legislative authority that will be needed for their permit programs and take action as soon as possible to ensure such authority is available. Early action, interim approvals, and the three year time period from enactment for permit program development should allow for attaining sufficient legislative authority.

Comment: An industry commenter ( IV F 02a) believed that State flexibility is critical to a successful permitting program.

Response: The Part 70 regulations have been developed with the intent to provide as much flexibility as allowed by Title V for permitting authorities.

Comment: One commenter ( IV D 124) believed that any permit applications, compliance plans, and monitoring and compliance reports must be available to the public.

Response: Section 70.4( b)( 3)( viii) of the regulations requires the program submittal to contain provisions for making these items available to the public.

4.3. INTERIM AND PARTIAL PROGRAMS Comment: A State agency ( IV D 91) commented that a definition of interim program is needed. Several commenters ( IV D 129, IV D 134, IV D 203, IV D 219) supported the inclusion of interim program provisions. One industry commenter ( IV D 184), however, opposed allowing interim permitting programs. Two commenters ( IV D 129 and IV D 219) gave reasons why interim program approvals were needed, including that interim approvals are necessary when EPA and the State disagree on whether an adequate program exists ( IV D 219). Industry commenter IV D 325 stated that permits granted under interim program approval should not expire, as this would penalize sources by requiring them to submit duplicate applications.

Response: Section 502( g) of the Act allows interim approval of a State program for up to two years if it would substantially meet the requirements of Title V. Section 70.4( d) proposed six program elements that would be needed for a program to receive interim approval. The criteria for allowing interim approvals is designed to provide for viable permits that will not have to be renewed upon full program approval other than when the term of the permit expires. The EPA believes the proposed criteria, with the addition of enforcement, operational flexibility, expeditious permitting procedure provisions, permit application and reporting form( s), and provisions for alternate scenarios are sufficient to substantially meet the requirements of Title V. Other suggested additions to the criteria were considered and only these provisions were judged to be important enough to be added.

Comment: Two industry commenters ( IV D 122 and IV D 208) requested that operational flexibility provisions be required for interim program approvals.

Response: The Administrator agrees with industry commenters that operational flexibility is an important aspect of the permitting program that should be included in an interim program. Because permits issued under an interim program could be for a full five year term, sources would need this important provision to allow timely response to changes in market conditions. Without operational flexibility provisions and provisions for alternate scenarios, needless permit revisions could be required, often before critically important changes could be made.

Comment: One local government agency ( IV D 107) commented that interim programs should be approved as quickly as possible.

Response: The EPA has one year to approve operating permit programs. This time limit applies to interim programs. Due to the requirements in Title V for opportunity for public comment in the program approval process, the process will be somewhat lengthy. The EPA will, however, act as expeditiously as possible to grant approval to permit programs.

Comment: A State agency ( IV D 219) commented that adequate fees should not be a minimum element for granting interim approval.

Response: The Administrator believes that adequate funding of permit programs through permit fees is a necessary element of a program for it to be sufficient to issue viable Part 70 permits. The lack of adequate funding could result in resources being insufficient to give proper attention to permit development and compliance.

Comment: One industry group ( IV D 134) commented that interim and partial program approvals are necessary, because cumbersome dual permitting programs, such as those under the Resource Conservation and Recovery Act Subtitle C, result when such options do not exist. An environmental commenter ( IV D 432) considered partial program approvals acceptable if they implement Titles I, IV, and V for one source category, as the Act at Section 502( f) prohibits partial approval unless all applicable requirements are included. Response: The minimum criteria in Section 502( f) of the Act for approval of a partial program is that it ensure compliance with Title V, Title I, Title IV applicable to affected sources, and Section 112 applicable to new sources, major sources, and area sources. Any program meeting these requirements can be granted a partial approval. However, a full program meeting all applicable requirements of the Act ( e. g., Title VI, etc.) must be submitted by the program submittal deadline of 3 years after enactment, unless an interim approval is granted which would extend the deadline.

Clarification is added to Section 70.4( c) concerning partial programs limited to certain source categories. A program that only addresses certain source categories based on the jurisdictional limits of a local agency may be approved as a partial program. This partial program approval can be interim if the program does not fully meet, but substantially meets, the criteria for a permitting program. A program that is limited because it does not address certain source categories ( for reasons other than geographical jurisdiction of a local agency) will be given only an interim approval and must be modified within the interim approval period to cover all sources and meet all Part 70 requirements before full approval can be granted. However, for EPA to grant a source categorylimited program ( other than for geographical reasons) an interim approval, there must be compelling reasons why the State cannot address all sources in the interim. These reasons will be judged on a case bycase basis.

Comment: One State agency ( IV D 179) argued that EPA should approve permit programs on a district bydistrict basis.

Response: The EPA will approve partial programs individually as they are submitted. The breakup of a State into partial programs is an option employed at the discretion of the State and its local agencies with no EPA input except during program evaluation and approval or disapproval to ensure that the whole State is covered by a fully approved program.

Comment: An industry commenter ( IV D 129) stated that a mechanism for permit renewals would be needed if interim program approvals are allowed, in order for businesses to have a permit in place if the State program is not approved after the interim approval period expires.

Response: Permitting authorities have the option to establish permit terms shorter than five years so that permits will be renewable sometime shortly after full program approval. If an interim program does not get full approval at the end of the two years, EPA is required by the Act at Section 502( d)( 2) to apply sanctions and by Section 502( d)( 3) to promulgate a program two years after the deadline for program submittal in Section 502( d)( 1). Corrections of interim program deficiencies must be submitted to EPA at least six months before the end of the interim approval period to allow time for evaluation and public notice of full program approval. If the program does expire and does not get full approval, any permits issued under the interim approval will remain in effect as federally enforceable and will become subject to a Federal program.

Comment: Several industry commenters ( IV D 160, IV D 311, IV D 325, IV D 406) were concerned that permitting programs might be approved before determination of Federal maximum achievable control technology ( MACT) standards. States might then be forced to set MACT requirements that would later have to be revised, requiring permit modifications. These commenters wanted to avoid case by case MACT determinations. Two of the commenters ( IV D 311 and IV D 406) additionally stated that neither early approval of State programs nor the permitting process itself should lead to caseby case MACT determinations.

Response: State and local operating permit programs will be approved before some of the EPA MACT standards are set. Section 112( g)( 2) of the Act requires that, after a permit program is approved, no major source may construct or be modified unless the applicable MACT standard is met. If no MACT has been set, the permitting authority must determine MACT for the source on a case by case basis. This could result in a MACT control level below the level that would be set by EPA, thus requiring the source to meet a new MACT. The Administrator understands the concern; however, the Act is clear on this issue and case by case MACT determinations would have to be made under the circumstances described.

4.4 EPA REVIEW OF PERMIT PROGRAM SUBMITTALS Comment: Several groups commented on EPA review of permit program submittals. Two industry commenters ( IV D 93 and IV D 134) indicated that the States should only have one year to submit their program revisions following EPA review. One of these groups ( IV D 134) further commented that a two year period would be appropriate if legislative action was required. An environmental group ( IV D 432) believed that a State should only have 180 days to resubmit a permit program after EPA disapproval, which is the statutory deadline given under the Act at Section 502( d)( 1).

Response: The Act at Section 502( d)( 1) stipulates that the State has 180 days after EPA notice of disapproval to resubmit a program and does not provide for any longer period. Section 70.4( f) has been revised to reflect only the 180 days, and the provision for up to two years ( an allowance proposed only for a situation where legislative changes would be needed and additional time would be required for the changes to be adopted) has been removed to make the regulation consistent with Section 502( d)( 1). Comment: One industry commenter ( IV D 313) urged that EPA oversight of State programs is vital in order for programs to develop gradually. Another State agency ( IV D 301) believed that EPA review should extend to audits of State and local programs for quality control.

Response: The EPA will be periodically involved in oversight of State and local permitting programs, from initial plan approval to oversight of permit issuance, revision, and renewal. The EPA has responsibility under Section 502( i) to promulgate, administer, and enforce a permit program if the permitting authority fails to adequately administer and enforce its approved program. The EPA envisions future audits of approved programs to fulfill this responsibility to assure proper program administration.

Comment: A State agency ( IV D 113) believed that States should have the opportunity to appeal EPA denial of the State program. This commenter argued that States should have the opportunity to demonstrate that their original program submittal met the intent of the Act before the process begins, and that the Administrator should be required to respond within six months of submittal.

Response: There is nothing to prevent a permitting authority from appealing a disapproval and nothing to prevent the Administrator from reconsidering approval of a program submittal. However, the Administrator is under no obligation to respond to an appeal.

The Act does not limit the timing of EPA review of program revisions resulting from disapproval. There is incentive, however, for EPA to act expeditiously. First, EPA supports State and local agency establishment and implementation of the programs as soon as possible. Second, EPA will have to promulgate a Part 71 program two years after the program submittal deadline ( i. e., by November 15, 1995) if a program is not approved. The EPA wants States to administer permitting programs and will make every effort to support program establishment at the State or local government level.

Comment: One State agency ( IV D 219) commented that States should be exempted from the requirement to submit any permit applications for sources not regulated under Part 70 for EPA review.

Response: The permitting authority will have to submit to EPA only those permit applications for sources within the approved permit program for that agency.

4.5 INDIVIDUAL PERMIT TRANSITION Comment: Two industry groups ( IV D 93 and IV D 184) commented on individual permit transition. One of these groups ( IV D 93) believed that there should be no individual permit transitions, and that the whole set of permit applications should either be retained by EPA or transferred to the State. Response: Section 502( e) specifies that the Administrator shall suspend issuance of permits under a federal program upon notice of approval of a permitting program. There is, however, authority for EPA to retain jurisdiction over federally issued permits until a permit is issued under the approved program. It is unclear whether EPA has authority to retain jurisdiction over permit applications for which permits are not issued. The EPA believes the Act can be read either way and EPA will consider transferring application processing to the permitting authority upon program approval.

Comment: An industry group ( IV D 184) commented that even if EPA has jurisdiction over the permit, the permittee still only needs to report to the State.

Response: This would not serve the purpose of EPA's administration of a permit program. If the State fails to submit a program or its program is disapproved, the State will not be actively involved in permitting. The source will have to report to EPA as the permitting authority.

4.6 PROGRAM REVISIONS Comment: An environmental group ( IV D 432) commented that the Act at Section 502( i) requires that any program deficiencies must be corrected within 18 months, or sanctions are applied; thus, the commenter argued, EPA may not allow a State " such period as the Administrator may specify" to correct deficiencies.

Response Section 502( i)( 1) of the Act gives the Administrator authority to apply sanctions before the end of the 18 months ( when at least one sanction becomes mandatory), recognizing that program deficiencies can vary in complexity and importance. The Administrator feels that there can be some program deficiencies that should be corrected in less time than 18 months and reserves the right to establish a shorter period of time for action.

Comment: An industry commenter ( IV D 343) stated that the words " or priorities" should be deleted from Section 70.4( i), and that States should not have to keep EPA informed of program priorities. Response: The Administrator agrees and the reference to priorities has been deleted from Section 70.4( i).

Comment: A State agency ( IV D 113) commented that the Administrator should be required to explain why the permit program is inadequate when a mandatory program revision is required.

Response: If EPA does not approve a program or gives a program interim approval, that action will be accompanied with an explanation of the deficiencies in the program that need to be corrected prior to full approval being granted. If a revision necessitating program modifications is made to Part 70, the notice promulgating that action will explain any required modifications.

Comment: Two industry groups ( IV D 199 and IV D 208) commented that changes to the State permitting program should require public notification and opportunity for public comment. Another industry group believed that while public comment was not necessary, EPA should provide notice of revisions to State air operating permit programs, even if the changes were not substantial.

Response: Any action to approve, disapprove, or substantially revise a program will go through opportunity for public comment according to Section 502( d) of the Act. Section 70.4( i)( 2)( ii) and ( iv) are written to provide public notice only of substantial program revisions to avoid what could be a significant burden of public notice procedures for minor program changes in which the public has little interest. At any time, the public can gain access to the program provisions or can request information on program changes for which no public notice was provided.

4.7 INFORMATION SHARING PROVISIONS Comment: Several comments on the proposed informationsharing provisions were received ( IV D 53, IV D 91, IVD 109, IV D 367, IV D 435). A Federal agency ( IV D 109) requested that laws for classified or sensitive unclassified information be applied when such information is transmitted to the permitting authority and to EPA for permit review. A State commenter ( IV D 91) requested that EPA correspond directly with the permittee to get confidential information, and that EPA not require States to share confidential information. Two State agencies ( IV D 53 and IV D 367) commented that State laws may prohibit transmittal of confidential information to EPA, and that EPA should instead use its authority under the Act at Section 114 to obtain the required information. An industry commenter ( IV D 435) stated that all information in the application should be confidential, or proprietary information on manufacturing processes will be sacrificed. Response: A stipulation is added to Section 70.4( j) that the permitting authority may require a source to submit confidential information directly to EPA, because some States cannot submit such information to EPA. Regardless of whether the submittal is made by the State or the source, the material will be submitted under 40 CFR Part 2, which contains the Federal Government's business confidentiality regulations. These regulations specify requirements for material to be considered confidential business information. Qualifying information is protected from being released to outside parties under Part 2.

4.8 OTHER COMMENTS ON SECTION 70.4 Comment: Several industry commenters ( IV D 145, IV D 147, IV D 154, IV D 207) and one State agency ( IV D 179) strongly supported the existing California or Texas air permitting programs and suggested that these programs be approved with minimal change. Several other commenters ( IV D 1, IV D 58, IV D 123, IV D 233, IV D 411) further suggested that EPA allow " equivalent" programs where they achieve the same results as the Title V program. One of these commenters ( IV D 147) suggested that EPA identify the minimal changes required for an existing program to be approved as a Title V program. Another of these commenters ( IV D 179) suggested that language be added to allow permitting authorities to integrate existing compliance procedures into the operating permits program and that States be allowed to develop alternative permit programs that fully comply with Title V. Another agency commenter ( IV D 233) suggested that emphasis be placed on allowing States to maintain their existing procedures, including current forms, and that the regulations should indicate that the model forms will not be the sole criteria used to judge the adequacy of a State's submitted application forms. Industry commenter IV D 315 also supported approval of equivalent programs and gave as an example the declining balance strategy proposed in California, in which a facility is allocated emissions that decrease over time. These decreasing emissions are considered equivalent to Title I emissions offset requirements. One industry commenter ( IV D 303) indicated that States must have the flexibility to design permit programs that avoid permitting conflicts among State agencies.

Response: The EPA has no leeway to accept current programs other than to judge them against the criteria for program content specified in the Act at Section 502( b) and in the Part 70 regulations. In promulgating these regulations, however, the Administrator has provided for as much flexibility as possible in approving State programs in an effort not to disrupt them unduly. The provisions in Section 502( g), however, provide for interim approval of programs for a period of up to two years if the program " substantially meets" the program content criteria in Section 502( b). The criteria for determining if a program substantially meets Title V and is eligible for interim approval were proposed in Section 70.4( d), and public comment was considered in establishing the final criteria.

As a general rule, EPA will accept elements of current State or local operating permit programs consistent with the criteria for program content specified in Section 502( b) and the Part 70 regulations, using as much flexibility as possible in an effort not to disrupt them unduly. This policy will be particularly true where the State has an established track record in implementing an air operating permit program.

The regulations specify the flexibility for all permitting authorities to develop their own " substantially equivalent" procedures. In the following situation, EPA has provided a model for the State to follow and will approve different but effective State approaches that accomplish the same statutory and regulatory objectives. Section 70.4( b)( 13) requires in part for State program approval " provisions for adequate, streamlined, and reasonable procedures for expeditious review of permit revisions, including permit modifications." This section further states that the State may meet this obligation for purposes of establishing modification procedures by " using procedures that meet the requirements of Section 70.7( e) of this part or that are substantially equivalent ( emphasis added)."

Comment: One State ( IV D 249) commented that it is unreasonable to require evidence that existing regulations, some of which were adopted 20 years ago, were correctly adopted and that, for new regulations, States should only need to make a demonstration that the general adoption process was procedurally correct, with a statement from the Attorney General that the regulations followed proper procedures. One industry group ( IV D 152) said that States should not have to include both relevant statutes and the Attorney General's opinion to show sufficient legal authority as part of their program submittal. One industry commenter ( IV D 361) and one State agency ( IV D 301), however, supported the requirement for States to submit a legal opinion. Response: The Administrator agrees with the concern that proper regulatory adoption evidence may be unavailable. Section 70.4( b)( 2) in the final regulations requires only that the State provide reasonably available evidence of procedurally correct adoption. Added to the final regulations is the requirement to also submit any regulations or statutes that could restrict the effective implementation of the permit program. The EPA needs to see any such regulations, and needs the Attorney General's opinion as to their validity, to be able to judge if any regulatory changes need to be made for the permitting authority before full approval of a program submittal is warranted.

Comment: One State ( IV D 326) and one Federal agency ( IV D 376) commented that States should be required to include a model permit in their program submittal. A cement industry commenter ( IV D 137) requested that State programs be required to accept a federallyadopted general permit for the cement industry as a model permit, as the cement industry is already overburdened with regulation.

Response: A model permit is not a necessary element of a program to ensure compliance with Part 70. In addition, many agencies without permitting experience may find it difficult to produce a model permit in the time frame provided for program development and submittal. The EPA intends to develop model permits for use by permitting agencies as an aid, but these model permits will not be binding on them.

Comment: Two industry commenters ( IV D 210 and IV D 311) argued that the provisions to challenge permits are critical, as new grounds of information arise after the period for challenge has lapsed, and the Government's interpretation of a permit may not be known until an enforcement action is commenced.

Response: An additional provision regarding the opportunity for judicial review has been added to the final regulations. Section 70.4( b)( 3)( xiii) requires that this opportunity for State court review of the final permit action must be the exclusive means for obtaining judicial review of the permit, and that all such petitions for judicial review must be filed no later than 90 days after final permit action, or such shorter time as the State requires. If new grounds for challenge arise after the 90 day review period has ended, the party may challenge the permit on such new grounds within 90 days after the new grounds arise. Such new grounds must be based on new information that was not available during the review period. New grounds specifically do not include a government interpretation of a permit the source claims in an enforcement action to have been unaware of. After this period for review, no permit may be challenged in court, including any State or Federal enforcement action. Section 307 clearly establishes this rule for circumstances in which EPA is the permitting authority.

Comment: Industry commenters IV D 205 and IV D 206 believed that States need to be publicly accountable for managing their permit programs. These commenters further indicated that States should be required to publish a list of approved permits semiannually, including a description of the number and types of permit applications that the State has received.

Response: A requirement for public accountability is an example of an item that would be in the implementation agreement between a permitting authority and EPA.

Comment: One industry commenter ( IV D 48) stated that EPA should delegate program administration to the States as soon as the program demonstrates minimum requirements. This commenter argued that delegating authority quickly avoids duplicate efforts.

Response: The EPA will assist permitting authorities in any way possible to support expeditious adoption and implementation of a permitting program.

Comment: Two industry commenters ( IV D 93 and IV D 134) believed that local agencies should be delegated the same authority that the State agency has when permitting is their responsibility.

Response: The EPA will approve partial programs on the same basis as full State programs and judge administrative authority of local agencies as a State's authority will be judged.

Comment: One Federal agency ( IV D 394) commented that States should actively seek input from affected entities in developing their own permit programs.

Response: Each State is responsible for its own mechanism of program development.

Comment: A State agency ( IV D 326) commented that a Part 71 program was needed earlier in order to serve as a model for program development. This commenter further indicated that the State should be the permitting authority when there is no approved State program and no promulgated Federal program. The EPA should not be able to apply sanctions against the State, the commenter believed, if the State elects not to propose its own program and instead to wait for a Part 71 program to be promulgated. Another State agency ( IV D 91) commented that States should be able to choose those circumstances where the State wants EPA to carry out a Part 71 permit in the State.

Response: The purpose of a Part 71 program is primarily for Federal implementation in the event a State does not meet its obligations to develop or implement an approvable program covering the entire State. The EPA intends to develop the Part 71 program as soon as possible. This program, however, will not be for purposes of relieving a State from its responsibilities, and sanctions will be applicable to a State, as provided for in Sections 502( d) and ( i), if it does not submit an entire program or combination of partial programs covering the entire State within the allowed time frames.

Comment: One State agency ( IV D 91) commented that EPA should not require States to issue permits located outside of their legal jurisdiction, such as on the continental shelf.

Response: Section 328( a)( 1) establishes that certain sources on the outer continental shelf shall be treated as if they are within the boundaries of States. The EPA does not have discretion to deviate from this Act requirement. 5.0 COMMENTS AND RESPONSES ON SECTION 70.5: PERMIT APPLICATIONS 5.1. SUMMARY OF COMMENTS ON SECTION 70.5 Comments in this section were directed at permit applications. They included discussion on the timing of submittals, the format and content of applications, compliance plans and certifications, determination of the completeness of applications, and other issues relating to the permit application process. The majority of comments in this section were on the 18 month lead time for application submittals, the 30 day default completeness determination, de minimis exemption levels for inclusion in the application, and the need for compliance plans.

5.2. DUTY TO APPLY Comment: There were several comments on general aspects regarding the duty to apply and the timely submittal of applications. One State commenter ( IV D 113) questioned who must apply when the owner and operator are different. One industry commenter ( IV D 184) also requested clarification on this point, and indicated that regardless of who must apply, there should only be one permit application.

Response: One application or set of applications is required for each source, whether the owner and operator are different or not. Information on each emission unit or activity at a facility need be fully described only once. The Administrator has provided States with flexibility concerning the format of standard application forms, therefore, States may require sources to submit one application for the entire facility, discrete application forms for each emission unit, or provide a modular approach to permitting where each source prepares the same basic application form with additional forms for specialized regulatory requirements.

The issue of who must apply is addressed in response to comments contained in Section 2.13 of this document which discusses whether owners or operators must apply and the " under common control" provision of the definition of " major source." Further discussion is found in Section 3.2.1 of this document concerning major source applicability.

Comment: Several industry commenters addressed the issue of timely application submittals. One commenter ( IV D 124) requested a definition of " timely." Another commenter ( IV D 319) wanted the timely submissions to be by a specified date ( November 11, 1995), and a third ( IV D 193) wanted the timely submissions to be only for Federal requirements. One commenter ( IV D 106) encouraged EPA to make the 12 month period for submittals an allowable time period, with a minimum submittal time of 6 months, while another ( IV F 019) suggested the time deadline for submissions be reworded to allow more flexibility. Commenter IV D 5 indicated that any initial application submittal time of less than 12 months would be unacceptable. The final commenter ( IV D 100) on this subject indicated that the 12 month submittal time should apply after the permit program has been approved by EPA.

Response: " Timely" is defined with regard to application submittal or submittal of additional information within Section 70.5( a)( 1) of the final regulations. To be a timely submission, a complete application must be submitted on deadlines established by the States, subject to approval by EPA. States may also set their own deadlines, subject to EPA approval, for applicants to submit additional information requested by the permitting authority subsequent to the completeness determination.

To require that applications be submitted by a certain date ( November 15, 1995) as suggested by one commenter is infeasible because State programs will be approved on differing dates and is contrary to Sections 502( a), 503( a), 503( c), and 503( d), which set deadlines for applications based not on a specific date but with reference to timeframes that commence following an action taken by EPA, the permitting authority, or the source. If an applicant submitted an application that only addressed federally enforceable requirements but did not address otherwise applicable State only requirements, it would be determined by the permitting authority to be incomplete. If the applicant did not submit a complete application within the deadlines provided by the permitting authority, the applicant would be subject to Federal enforcement for failure to apply for federally enforceable requirements and subject to State enforcement, independently of Title V deadlines, for those requirements that are State enforceable.

Section 503( c) of the Act states that an application with a compliance plan shall be submitted not later than 12 months after the date on which the source becomes subject to the permitting program and provides for States' discretion on setting the exact deadline. These deadlines should be included in the Part 70 program submittal for review and approval by the Administrator. Section 503( c) clearly gives States authority to set any time for submittal of applications that is not greater than 12 months. The Act therefore does not allow the Administrator the discretion to disapprove a submittal date on the grounds that it is too early or to set a minimum submittal time of 6 months as suggested by the commenter. Section 503( a) states that any source is subject to the permitting program on the later of two dates, the effective date of State's Part 70 program after approval, or when the source is subject to Section 502( a) of the Act. Additionally, Section 502( a) states that it shall be a violation for a source to operate without a permit. This implies that a source becomes subject to the operating permit program when operations commence. Therefore, a subject source may wait until 12 months after it begins operation or after State program approval, whichever date is later, to submit its operating permit application, provided that the State has not established an earlier date. Furthermore, Section 503( d) allows a source subject to the permit program to operate and not be in violation prior to the time it must submit an application under Section 503( c). Since Section 503( d) is more specific on this point, it is clear that any source, including those required to have a Title I Part C or D permit need not submit a Part 70 application until after it commences operation or such earlier date as the permitting authority may establish. This prevents the source from being subject to an enforcement action during the 12 month period that it operates before it applies for an operating permit.

The proposal did not address the timing of application submittal for sources required to have a preconstruction review permit pursuant to the requirements of the Prevention of Significant Deterioration ( PSD) program under Title I, Part C or the nonattainment area New Source Review ( NSR) program under Title I, Part D. However, Sections 502( a) and 503( a) together indicate that a source required to have a Title I, Part C or D permit is not subject to the Part 70 permit requirements until after it commences operation or such earlier date as the permitting authority may establish. This prevents the source from being subject to an enforcement action during the period that it operates before it is required to apply for an operating permit. The final rule in Section 70.5( a)( 1)( ii) now states that new or modified sources required to meet the requirements under Section 112( g) or to have a Part C or D permit must submit a Part 70 permit application no later than 12 month after operations commence, unless the State requires an earlier submittal date. The requirements of Section 112( g) will be established in the forthcoming rulemaking to implement that Section. If an existing Part 70 permit would prohibit or limit a proposed modification, the Part 70 permit must be revised before commencing operation.

Comment: Many industry commenters ( IV D 2, IV D 52, IV D 56, IV D 77, IV D 88, IV D 100, IV D 101, IV D 105, IV D 106, IV D 114, IV D 115, IV D 116, IV D 120, IV D 122, IV D 126, IV D 127, IV D 129, IV D 132, IV D 135, IV D 139, IV D 144, IV D 150, IV D 152, IV D 155, IV D 159, IV D 161, IV D 174, IV D 175, IV D 176, IV D 177, IV D 178, IV D 184, IV D 188, IV D 198, IV D 199, IV D 200, IV, D 203, IV D 204, IV D 208, IV D 209, IV D 272, IV D 274, IV D 276, IV D 278, IV D 296, IV D 302, IV D 306, IV D 311, IV D 313, IV D 314, IV D 318, IV D 323, IV D 330, IV D 348, IV D 369, IV D 383, IV D 395, IV D 404, IV D 406, IV D 417) stated that the 18 month lead time for permit renewals was too long. Two commenters ( IV F 02e and IV F 03d) suggested a lead time of 90 days or less, while the majority of commenters ( IV D 56, IV D 101, IV D 105, IV D 106, IVD 114, IV D 115, IV D 122, IV D 126, IV D 127, IV D 139, IV D 144, IV D 150, IV D 155, IV D 159, IV D 161, IV D 184, IV D 188, IV D 199, IV D 198, IV D 203, IV D 271, IV D 274, IV D 276, IV D 303, IV D 306, IV D 313, IV D 318, IV D 330, IV D 348, IV D 369, IV D 395, IV D 404, IV D 406, IV D 417) suggested a 3 to 6 month renewal deadline was more appropriate. Most cited the number of updates or revisions that would occur within the 18 month period itself would make it burdensome to turn in the renewal application so far in advance. Some commenters ( IV D 52, IV D 77, IV D 88, IV D 124, IV D 152, IV D 200) suggested that the lead time should be shorter than the 18 months, but longer than the 3 to 6 months suggested by other commenters. One State commenter ( IV D 125) requested that EPA allow the Regional Administrators the authority to approve shorter time frames.

Response: The proposal defined " timely" for submittal of renewal applications as 18 months prior to permit expiration, unless some other time were approved by the Administrator. Furthermore, the proposal offered two examples where times less than 18 months would be approved by the Administrator ( i. e., if the State issues permits with terms shorter than 5 years and if the State is required to act on permits in less than 18 months) and stated that in no case would a deadline be approved that was less than 6 months before the permit terms expired. In order to ensure that the permit terms do not lapse, the renewal application must be submitted long enough before the permit expires to allow for processing and permit reissuance. This is consistent with Section 502( a) of the Act, which states that a source shall not operate without a permit once it is subject to the permitting program. There is a competing concern expressed by many commenters in that these applications must be expeditiously processed by the State, consistent with Section 502( b)( 6) of the Act.

These concern has been addressed by changing the wording of the final regulation to more clearly communicate that permitting authorities have the discretion to require renewal applications to be submitted not less than 6 months or more than 18 months before permit expiration. The States are given flexibility to set these deadlines, but this flexibility is tempered by the Administrator's ability to audit State programs after approval to determine if permits are being renewed before the permit terms lapse. The States can require sources to submit applications within the time confines provided in the regulation and it is then up to the State to ensure that the applications are processed and the renewal permits are issued as approved in their program submittals.

5.3. STANDARD APPLICATION FORM AND REQUIRED INFORMATION 5.3.1 Plant Description Comment: There was only one comment on the plant description information requirements for the permit application. The commenter ( IV D 173) objected to the requirement that a source submit plant descriptions in terms of products and processes that were not emissions related.

Response: Permit reviewers must be provided with the plant description in terms of the products and processes present at the plant so they can determine application completeness and ensure that all applicable requirements are included in the permit. Section 502( b)( 1) of the Act requires that the Administrator establish criteria for determining the completeness of applications. Section 502( b)( 5)( A) requires that the States have adequate authority to issue permits that ensure compliance with each applicable standard, regulation, or requirement under the Act and Section 504( a) requires that each permit contain such conditions as are necessary to assure compliance with each applicable requirement. The Administrator believes that more than just emissions related information is necessary to meet these Act requirements. Information on all the source's products and processes is a necessary check on the applicant's determination of which processes are regulated under the Act and which components of those processes are in fact emissions related. Often it is not patently clear which processes or products are emission related and which are not. Depriving the permitting authority of information on the totality of operations at the source can only make more difficult the task of writing permits which are effective and provide reasonable flexibility.

5.3.2. Emissions Related Information Comment: Many commenters ( IV D 97, IV D 106, IV D 126, IV D 132, IV D 160, IV D 174, IV D 175, IV D 176, IV D 177, IV D 178, IV D 199, IV D 269, IV D 278, IV D 312, IV D 325, IV D 344, IV D 352, IV D 366, IV D 374, IV D 374, IV D 375, IV D 376, IV D 383, IV D 390) indicated that the reporting of every piece of emitting equipment, however small the emissions, was an unnecessary burden. Commenter IV D 352 stated that the reporting of all emission points would overwhelm regulatory agencies. They cited as an example one facility that has over 700 buildings, many of which are involved in production activities. Many commenters ( IV D 97, IV D 126, IV D 160, IV D 174, IV D 175, IV D 176, IV D 177, IV D 178, IV D 199, IV D 269, IV D 344, IV D 366, IV D 374, IV D 374, IV D 375, IV D 376, IV D 383, IV D 390) suggested EPA create a de minimis exemption level for regulated pollutants, and that emissions information not be required for pollutants below this de minimis level. One commenter ( IV D 126) proposed that this de minimis level be set at 2 tons per year ( tpy), while another commenter ( IV D 384) suggested the level be set at 5 tpy, or 20 percent of the applicable threshold. Commenter IV D 97 requested a clarification of the de minimis level, and commenter IV D 319 suggested the emissions from valves and flanges be considered de minimis. Commenter ( IV D 02) requested de minimis permit exemptions, but suggested that sources be required to report them in applications.

Response: The Preamble to the proposal solicited comment on the position that all information be required on application forms to facilitate the State issuing these comprehensive permits. The Preamble section on applications did not address the issue of whether insignificant activities or de minimis emissions should be exempted from the reporting requirements for applications.

The final rule in Section 70.5( c) addresses the commenters' concerns about burdensome paperwork and reporting by providing that States, subject to EPA approval as part of the State program, may establish exemptions for activities or emissions levels as insignificant. The regulation limits this discretion by precluding any of these exemptions if they would interfere with determinations of applicability, the imposition of applicable requirements upon the source, or the calculation of fees. Applicable requirement in this context would include any standard or requirement, as defined in Section 70.2.

Furthermore, the Administrator requires the application to have only a list containing information on the activities or emission units that qualify for the exemption because of size or production rate. An example might be a boiler which is exempt because it is below a specific heat input rate. This list need only contain enough information to identify the activities or units requiring an exemption. This list is important for both the source and the State because it provides certainty as to exactly what activities or units are exempted, where a particularized determination was necessary. The exemptions described in Section 70.5( c) are necessary to minimize unnecessary paperwork and to reduce the need for sources to conduct analysis of all emissions, regardless of the amount involved. Such a position is also supported by the Alabama Power decision, where the court found that emissions from certain small modifications and emissions of certain pollutants at new sources could be exempted from some or all PSD review requirements on the grounds that such emissions would be de minimis [ Alabama Power Company v. Costle 636 F. 2d 360 ( D. C. Cir. 1979)]. In other words, the Administrator may determine levels below which there is no practical value in conducting an extensive review.

Rather than mandating national criteria for exempting insignificant activities or emission levels for all pollutants, the Administrator is allowing them on a case by case basis to be approved during rulemaking for each Part 70 permit program. To require one test nationally would ignore several State programs that have already defined workable criteria for insignificant emissions activities or units. State discretion to apply these exemptions also allows Title V to build upon rather than disrupt their existing programs. In regard to hazardous air pollutants, the Administrator is planning a rulemaking to establish exemptions based on insignificant emission levels for modifications under the Act at Section 112( g), and the exemptions established by a State for such pollutants should not be less stringent than these levels. Further guidance on what emission levels will be considered to be " reasonable" in regard to exemptions for other pollutants will be developed at a future date.

Valves and flanges are not specifically exempted from being included in permit applications. The Administrator has authority under Section 502( a) to exempt one or more source categories from the requirements of the Part 70 operating permit program. Valves and flanges are not source categories per se and therefore could not be exempted under this authority; nor can the Administrator provide an exemption for valves and flanges on a nationwide basis as insignificant emissions or activities as described in Section 70.5( c). The Administrator will allow permitting authorities in the States to propose exemptions for insignificant emissions or activities as part of their program submittal, subject to approval by the Administrator after such submittal. Furthermore, these exemptions may not interfere with determinations of applicability or fees and may not exempt an otherwise applicable requirement in regard to valves or flanges. However, the Administrator believes the regulations allow application forms to reasonably limit the detail required from sources, where such is appropriate. For example, VOC emissions might be produced at many places in a chemical process facility, but an application might describe these adequately without individually describing each minor emission point such as a valve or flange.

Comment: One industry commenter ( IV D 313) stated that only emissions related data should be required in the application. They believed that identifying the raw materials used in some processes may reveal confidential business information. Commenter IV D 366 wanted to be assured of the confidentiality of any information other than emission data ( such as calculations), with some method of keeping confidential business information ( CBI) separate from public application information. Two industry commenters ( IVD 258 and IV D 268) indicated that emissions related information should only have to be submitted for " pollutants subject to regulation" at the permitted facility, rather than for " regulated pollutants."

Response: To the extent that any information on a unit or source must be included in an application, all information detailed in Section 70.5( c) must be submitted. See Section 3.4.1 of this document for additional information on which emission units should be described in applications. When a unit is required to be described, information must be submitted sufficient to determine application completeness and to ensure compliance with all applicable standards, pursuant to Sections, 502( b)( 1), 502( b)( 5)( A), and 504( a) of the Act.

The proposal at Section 70.5( b)( 3)( iv) contained a requirement that an application contain, in order to be complete, information on fuels, fuel use, and raw materials used. The Administrator has modified this requirement in the final regulations at Section 70.5( c)( 3)( iv) to require this information only " to the extent it is needed to determine or regulate emissions."

Section 502( b)( 8) of the Act requires that States make available to the public any permit application, compliance plan, permit, and monitoring and compliance certification report except for information entitled to confidential treatment pursuant to Section 114( c) of the Act. Business information contained in applications may qualify for protection under Section 114( c). The EPA interprets Section 502( b)( 8) as requiring States to adopt procedures for dealing with claims of business confidentiality which are the same or substantially similar to those of Section 114( c). A stipulation was added to Section 70.4( j) that the permitting authority may require a source to submit confidential information directly to EPA because some States cannot submit such information to EPA. If information concerning raw materials meets the requirement of business confidential information, then it will not be released to outside parties.

Section IV. C. 4. of the Preamble to the final rule discusses the meaning of the term " regulated pollutant" and discusses a new term, " regulated air pollutant," which was introduced to address the concerns of commenters. Additionally, the definition of " regulated air pollutant" is included in the final rule in Section 70.2.

Comment: Commenter IV D 210 said information required to be submitted in an application should be strictly limited to information needed to ensure proper implementation of Title V. Commenter IV D 98 indicated that the phrase " other information required by any applicable requirements" was too ambiguous and should be clarified. Four commenters ( IV D 92, IV D 212, IVD 362, IV D 445) did not want volatile organic compounds ( VOC's) to be exempt from the requirements for other information ( such as monitoring requirements) placed on pollutants at Part 70 sources. Two of the commenters ( IV D 212 and IV D 362) stated this information would be useful in the development of emission inventories. Commenter IV D 158 went further, stating that continuous emission monitors ( CEMs) should be used to develop emission inventories. An industry commenter ( IV D 208), however, stated that information from the permit application should not be collected to provide the basis for emission inventories. Similarly, commenter IV D 56 stated that provision of calculations for emission estimates should be discretionary.

Commenter IV D 325 believed permit applications should not include descriptions of any monitoring systems or calculations. This commenter indicated that the permit application should contain only emission data. Industry commenter IV D 311 argued that detailed emission calculations need not always be submitted. Commenter IV D 272 stated that absent any applicable regulation under Section 504( b), the permit application is not required to State monitoring and reporting requirements. Commenter IV D 156 stated permitting agencies must allow the use of engineering calculations and or simulations for test methods. Commenter IV D 199 indicated that only the emission limit should be specified in the permit.

Response: Section 502( b) requires the Administrator to promulgate regulations establishing the minimum elements of a permit program to be administered by any air pollution control agency, but Section 503 which discusses permit applications, does not contain a specific list of what should be included in a permit application. Several sections of the Act by implication mandate the inclusion of certain information in permit applications. These sections provided guidance as to what minimum elements must be included in permit applications, and the Administrator has exercised discretion in determining what other information may be required in order to assure compliance with all applicable requirements. States may also require any additional information that they consider necessary to enforce the Act or to meet the requirements of this part, subject to approval by the Administrator.

Section 502( b)( 2) specifically includes monitoring and reporting requirements as one of the minimum elements of any permit program and Section 502( b)( 5)( A) requires the States to issue permits that assure compliance with each applicable requirement of the Act. Section 503( b) requires the applicant to submit a compliance plan with the permit application and that this compliance plan describe how the source will comply with all applicable requirements of the Act. Section 504( c) requires that each permit should set forth inspection, entry, monitoring, certification, and reporting requirements to assure compliance with permit terms and conditions. Furthermore, Section 114( a)( 3) sets forth specific requirements for enhanced monitoring and submission of compliance certifications for all sources. Further information and requirements in this regard are to be promulgated within two years of enactment as enhanced monitoring and compliance certification regulations.

At this time all the requirements that might come from this or other future rulemakings are not known, but the States must have the authority to collect adequate information on permit applications in order to assure compliance with all applicable requirements of the Act. Although the statutory basis for a requirement to include certain types of information in an application is discussed above, additional discussion on issues raised by these commenters is found in other chapters of this document and in the following paragraphs.

Many commenters misinterpreted Section 70.5( c)( 3)( vii) of the proposal to read that any information concerning VOC's could be excluded from an application. The primary purpose of this section is to make the point that additional information not specifically mentioned in the Part 70 regulations ( i. e., information needed for implementation of additional program requirements or the enforcement of other applicable requirement of the Act) might be required by permitting authorities in the permit application. The proposal also stated that information on location of emissions units, flow rates, building dimensions, and stack parameters ( normally used for ambient dispersion modeling) might be required by an applicable requirement, for all regulated air pollutants, but is not required for VOC's ( as is established EPA policy). EPA policy is that dispersion modeling is not required for VOC's as either a Title I requirement of the State or as a requirement of an individual source. Furthermore, it would have made no sense to exclude all additional information concerning VOC's from an application, with an example of when additional information concerning VOC's would be required being found in Part D of Title I, where certain sources of VOC's ( and NO x) are subject to the emissions statement requirements for nonattainment areas. However, the States, independently, may require additional information to be included in an application, including information concerning dispersion modeling or VOC's, under their own authority. Because of the confusion created by the formulation of this provision in the proposal, the final rule has been revised to eliminate the examples of " other requirements" in Section 70.5( c)( 3)( vii).

Information required for emission inventories could be required by the States, but the Administrator is not requiring it as a minimum element of a permit application. CEMs are not required of every source and not specifically required by Title V for any particular source. However, a State could use information from a CEM for purposes of developing emission inventories and information contained in permit applications could then be used by States for purposes of developing these emission inventories.

Information on monitoring and reporting is necessary in permit applications, as more than just emission data is needed in the application for the State to assure compliance with all applicable requirements. Information on monitoring and reporting may be required of a source as a part of the enhanced monitoring regulation or, pursuant to Section 504( c), to assure compliance with permit terms and conditions.

Additionally, calculations used to determine any emissions related information or data are required in an application by Section 70.5( c)( 3)( viii). These calculations must be shown in permit applications for permitting authorities to be able to reproduce the calculations for purposes of checking accuracy and to understanding the formulas, methods, variables, and assumptions used in the calculations.

Test methods used as the standard engineering basis for monitoring or stack testing are specifically defined in the CFR and State regulations. The enhanced monitoring regulations to be promulgated may allow a source to use their own test methods based on engineering calculations or simulations, provided certain rigorous statistical tests are met.

5.3.3 Air Pollution Control Requirements Comment: There were several comments on what should or should not constitute an applicable air pollution control requirement, and how those requirements should be included in the permit application. One environmental representative ( IV D 158) argued that " applicable requirements under the Act" must include ambient standards and compliance with any applicable requirements under Part C of Title I. Two State commenters ( IV D 151 and IV D 367) agreed, stating that a source should be required to submit data for National Ambient Air Quality Standards ( NAAQS) determination.

Several industry commenters ( IV D 97, IV D 106, IV D 134, IV D 203, IV D 208, IV D 210, IV D 273, IV D 311, IV D 396) disagreed with this position, and stated that a source should not be required to submit data for determination of NAAQS as a part of their permit application. Some commenters ( IV D 114, IV D 330, IVD 396) simply stated that there should be no additional requirements other than applicable requirements.

Response: The proposed rule contained discussion on whether ambient impact assessment information should be required on all applications and stated that it should not, but could be required by a State in limited circumstances. Ambient impact assessment information here means source specific data necessary for input to air quality impact dispersion models. Air quality modeling is not typically required for individual sources by the Act ( i. e., it is normally assumed that no individual source can affect attainment or maintenance of an ambient standard on an area wide basis).

The definition of " applicable requirement" in Section 70.2 of the final rule states that NAAQS standards or visibility requirements under Part C of Title I are applicable requirements as they apply to temporary sources. Section 70.5( c)( 5) of the final rule requires that an applicant submit " other specific information that may be necessary to implement and enforce other applicable requirement of the Act..." Therefore, ambient impact assessment information would be required in applications for temporary sources. Additionally, this type of information would be required in applications for any other source where such information is needed to meet an applicable requirement ( e. g., regulation to ensure good engineering stack height consistent with Section 123 of the Act). Such information, however, might be required in more circumstances, or at the discretion of the permitting authority, where the State opts to develop permit conditions to meet State Implementation Plan ( SIP) obligations.

Comment: Some commenters ( IV D 57, IV D 100, IV D 341) requested that States or permitting authorities list what the applicable requirements are within the permit, and not leave that determination to the applicant. Similarly, commenter IV D 133 suggested that sources should not have to specify the test methods to be used; this should be done by the permitting agency. Commenter IV D 57 suggested that if a list of requirements is not supplied directly by the State agency, then they should make available a reference list to the companies. Commenter IV D 276 proposed that this information be supplemental and included if known by the applicant, but not required. Commenter IV D 208 argued that a source should not be required to " suggest" a test method when there are so few approved methods. One commenter ( IV D 163) noted what they considered to be a lack of detail on what constitutes an applicable requirement, and requested clarification on what is required in an application. Another commenter ( IV D 100) stated that emission data should not be considered an applicable requirement, while another ( IV D 395) believed that only sample calculations of emission points should be required.

Response: The term, " applicable requirement" is fully defined in Section 70.2 of the regulations. Unless protected by shield provisions, all sources are subject to enforcement for not complying with any applicable requirement of the Act whether or not it is contained in a permit; therefore, permittees should already know which applicable requirements apply to them. States may require applicants to list all applicable requirements that apply to a source or the permitting authority may provide this information. Section 70.6( a)( 1)( i) requires permits to " specify and reference the origin of and authority for each term or condition." This requirement is based on Section 502( b)( 5)( A), which requires permitting authorities to " issue permits and assure compliance by all sources... with each applicable standard, regulation or requirement under this Act." Some States may decide to provide additional guidance for sources to assist them in determining which requirements apply to the source or what test methods may be appropriate, but the Act does not require States to do so.

Test methods used for any required monitoring should be referenced or described in the permit application, where appropriate. Section 504( c) requires the permit to describe monitoring and/ or test methods for determining compliance with each applicable requirement. This information is necessary to assure compliance with applicable requirements and must be known by the permit authority prior to issuance of the permit. However, monitoring or test methods provided for in the applicable requirements may not be applicable or appropriate to show compliance in every case. Until the Administrator specifies enhanced monitoring requirements, pursuant to Sections 114( a)( 3) and 504( b), the choice of the appropriate compliance technique remains primarily the responsibility of the permit reviewing authority. The requirements of section 504( c) must be met even if the underlying regulation or enhanced monitoring rule does not contain or suggest a method for determining compliance. If the underlying regulation or enhanced monitoring rule does not specify a test method, or allows a source the option of choosing among several equivalent test methods, the source is given an opportunity within the permit application to suggest one. In preparing the permit, the permitting authority may either follow the suggestion or require the source to use another method. See Section 6.2.2 of this document for a more detailed discussion of the minimum monitoring requirements of an approvable Part 70 program.

The collection of emission data is not an applicable requirement itself, but emission data may be required by an applicable requirement. Emission data are required as a minimum element for inclusion in standard Part 70 permit application forms. Emission calculations must be required, and, at State discretion, it is conceivable that a sample emission calculation may be required if there are many similar calculations based upon the same standard formula, as long as the variables that affect the calculations are known. The guiding principle is that permitting authorities must be able to reproduce any calculations performed within a permit application and know the basis, assumptions, and methods used in any calculations.

5.3.4 Other Information Requirements of the Clean Air Act Comment: One commenter ( IV D 397) stated that only information necessary for implementation of the permit program should be included in the permit application.

Response: Minimum criteria for determining the completeness of applications for Part 70 sources have been promulgated at Section 70.5( c), as directed by statute at Section 502( b)( 1) of the Act. These criteria are composed of the minimum data elements required by the permitting authority to be included in permit applications. These criteria have also been established, taking into account Section 502( b)( 5)( A) of the Act, which requires States to have adequate authority to issue permits that ensure compliance with each applicable standard, regulation, or requirement under the Act. Furthermore, States may require additional information, subject to approval by the Administrator, to be included in permit applications.

5.3.5 Alternative Operating Scenarios Comment: One industry commenter ( IV D 184) stated that it would be impossible to list all possible operating scenarios in the permit application. Another commenter ( IV D 276) stated that it would be very difficult to provide all reasonably anticipated operating scenarios.

Response: The final rule does not require the submittal of information concerning anticipated operating scenarios. Section 70.6( a)( 9) requires Part 70 permits to include terms and conditions for reasonably anticipated operating scenarios identified by the source in its application as approved by the permitting authorities. The submittal of such information by the source is advantageous to it because the permit application ( and the permit) will be more representative of source operation and, therefore, lead to less need for permit modifications to accommodate different operations at the facility. Additionally, the requirement in Section 70.5( c)( 7) means that if anticipated operating scenarios are identified in the application, then the permitting authority may require the application to include whatever additional information it deems necessary to define such scenarios.

5.3.6 Compliance Plans Comment: Several industry, environmental, and State commenters ( IV D 113, IV D 125, IV D 172, IV D 183, IVD 201, IV D 252, IV D 287, IV D 339, IV D 432, IV D 438, IV D 443, IV F 02) stated that a compliance plan is required under Section 501( b)( 1) of the Act, and that the proposed regulation appears to eliminate that requirement for complying sources.. However, one industry commenter ( IV D 161) stated that the language of the Act supports the use of compliance plans only for noncompliant sources.

Several commenters ( IV D 13, IV D 125, IV D 158, IV D 426, IV D 427, IV D 428, IV D 431, IV D 441, IV D 447, IV D 450, IV D 455, IV D 459, IV D 464, IV F 02, IV F 02d, IV F 01x, IV F 01c) opposed the elimination of the requirements for a compliance plan from the earlier drafts of the proposal. These commenters argued that the Act required that a permit application include a compliance plan and schedule. They maintained that the elimination of the plan would subvert the continual progress toward achieving compliance. One of the State commenters ( IV D 125) noted that there are two parts to compliance attaining and maintaining and that even if a source is in compliance it must show how it will stay in compliance. One environmental commenter ( IV D 158) stated that not requiring compliance plans to address future compliance dates creates an unlawful exemption to the Act's requirement that each permit have a compliance plan. This commenter argued that not including a requirement for a compliance plan is inconsistent with both Title V and the Act at Sections 110 and 172 that require SIPs to contain such schedules and that such schedules be incorporated into a permit under Title V.

On the other hand, many industry commenters ( IV D 14, IV D 97, IV D 102, IV D 105, IV D 106, IV D 115, IV D 132, IV D, 141, IV D 160, IV D 174, IV D 175, IVD 176, IV D 177, IV D 178, IV D 182, IV D 195, IV D 209, IV D 274, IV D 296, IV D 303, IV D 306, IV D 312, IV D 383, IV D 395) supported EPA's proposal to require compliance plans only from sources out of compliance. One of these commenters ( IV D 209) stated that Section 502 of the Act does not require compliance plans for sources that are already in compliance. This commenter argued that requiring schedules for meeting future requirements would be contrary to congressional intent, because similar requirements were deleted from earlier versions of the legislation.

Response: In response to commenters, the Administrator has further reviewed the language of the statute and the legislative history, and concludes that compliance plans containing schedules of compliance are required of all sources as part of the permit application.

Section 503( b)( 1) of the Act establishes the requirement that applications contain compliance plans and does not distinguish between sources in compliance or out of compliance with applicable requirements. Further evidence for requiring a compliance plan for complying sources is a reference to a compliance plan in Section 503( b)( 1) as a description of how the source will comply with applicable requirements ( i. e., a description of how the source will maintain versus attain compliance). Additionally, Section 503( c) of the Act clearly states that any person required to have a permit shall submit a compliance plan and an application for a permit.

The legislative history supports this conclusion. While the bill passed by the House required compliance plans from both complying and noncomplying sources, the bill passed by the Senate would have required compliance plans only from those complying sources subject to new requirements [ S. 1630, Section 352( b)]. It therefore appears that Congress considered and rejected even a limited exemption from the requirement to submit compliance plans for sources in compliance. Comment: There were several comments on compliance plans themselves. Commenter IV D 85 requested standards be set for what is an acceptable compliance plan. One commenter ( IV D 348) requested detailed compliance plans only from noncompliant sources, and streamlined compliance plans from sources in compliance. Similarly, other industry commenters ( IVD 52 and IV D 182) suggested abbreviated or streamlined compliance plans for sources that are in compliance. One commenter ( IV D 100) suggested that the compliance plan contain only the level of compliance to be achieved and the date it will be achieved. One industry commenter ( IV D 325) supported the use of alternative compliance plans, while another ( IV D 159) stated that compliance plans should not contain excessive detail. Commenter IV D 274 requested that the compliance schedule be able to incorporate by reference any existing judicial consent decree, administrative order, or like agreement. Several commenters ( IV D 432, IV D 438, IV D 443, IV D 449, IVD 464) indicated that the Act requires " that each permit shall include a schedule of compliance" and thus this schedule should be included in the compliance plan. One State commenter ( IV D 85) suggested that the proposed regulation be amended to delete the allowance for permitting noncompliant sources. The commenter added that if this could not be done, the regulation should include specific criteria for acceptance of compliance schedules.

Response: In the final rule, several revisions have been made to the regulations concerning compliance plans and their content. The proposed regulations required compliance plans only from sources that were not in compliance with an applicable requirement. Section 70.5( c)( 8) of the final rule requires compliance plans from all sources and allows the compliance plan to contain different levels of detail depending on the compliance status of the applicable requirement. The final rule requires that compliance plans contain a statement on the status of each applicable requirement, a description of how the source will maintain compliance with each requirement, and a schedule of compliance. The requirement that all applications contain compliance plans is based on the language of Section 503( b) that requires the applicant to submit with the application a compliance plan describing how the source will comply with all applicable requirements.

In the final rule, the detail required in the schedule of compliance contained in the compliance plan is allowed to vary, depending on the status of the applicable requirement, with more information needed for a requirement that the source is not in compliance.

However, the Administrator believes that the language of the statute suggests that schedules of compliance should receive different treatment where they are being applied to requirements for which the source is in compliance. Section 501( 3) of the Act defines a schedule of compliance as " a schedule of remedial measures, including an enforceable sequence of actions or operations, leading to compliance" with applicable requirements. The use of the phrases " remedial measures" and " leading to compliance" logically suggest the correction of a situation where a source is not in compliance. Further, it is unlikely that sources in compliance were intended to be subject to enforceable interim measures. In addition, complying sources have already demonstrated an ability to maintain compliance with applicable requirements. The EPA believes that it would be burdensome and serve no useful purpose for these sources to submit detailed schedules of compliance.

In the final rule, EPA requires schedules of compliance for sources in compliance with all applicable requirements at the time of permit issuance to contain only a final date for compliance with any applicable requirement effective in the future, unless the underlying applicable requirement requires a detailed compliance schedule. Similarly, the term " where applicable" in Section 70.7( c)( 7)( v) means that, for complying sources, certified progress reports are not required unless detailed compliance plans are required by an underlying requirement.

Requirements of judicial consent decrees, administrative orders and other similar agreements, such as compliance plans or schedules of compliance, could be incorporated by reference in the Part 70 application or permit. However, if the application or permit contains compliance plans with schedules of compliance, these plans or schedules should not be less stringent than the requirements contained in the decrees or orders.

Comment: One State commenter ( IV D 148) stated that California law does not allow for compliance plans in lieu of permit denial for noncompliant sources. Another State commenter ( IV D 85) suggested that the proposed regulation be amended to delete the allowance for permitting noncompliant sources. The commenter added that if this could not be done, the regulation should include specific criteria for acceptance of compliance schedules. One industry commenter ( IV D 319) requested clarification on the stringency of the compliance plans, and another ( IV D 199) wanted the compliance plans for noncompliant sources to be progress checks, not enforceable limits. Also, this commenter did not want exemptions to be listed in compliance plans, as this should be a State, not Federal, issue. However, one State commenter ( IV D 123) disagreed with this point, and suggested that State programs include terms under which variances or exemptions can be granted.

Response: There are many States that have a prohibition on issuing a permit to a source not in compliance, but Section 502( a) of the Act requires sources subject to the permit program to obtain a permit. Therefore, the Act requires permits for all subject sources, whether in compliance with all requirements or not, and provides for compliance plans to be submitted by all sources, as discussed previously in this section. By requiring the submittal of compliance plans as part of the application and providing for the issuance of operating permits with schedules of compliance, Congress provided a mechanism for allowing noncomplying sources to continue operation while efforts are underway to bring their operations back into compliance. Additionally, the clear implication of this is that Congress did not intend for noncomplying sources to continue operation without a permit once the permit application has been denied.

Compliance plans are not elements of the permit, and therefore are not enforceable. Pursuant to Section 504( a), the schedule of compliance must appear in the permit itself, and therefore must be Federally enforceable.

State and local variances or exemptions from applicable requirements will only be allowed if they are approved by the Administrator into the SIP. Otherwise, if a source is not operating in compliance with an applicable requirement or successfully meeting milestones within their schedule of compliance, they are in violation of their permit and the State should begin enforcement proceedings.

Comment: Several industry commenters ( IV D 102, IV D 140, IV F 01) wanted the Title V compliance plan requirements to be the same as those found in Title IV ( i. e., they did not want to have additional compliance plan requirements for Title V). One commenter ( IV D 365) noted that only when the Title V noncompliance is also noncompliance with Title IV should the compliance plan include a schedule and methods for the source to come into compliance with Title IV and Title V. Industry commenters IV D 98 and IV D 227 argued that the provisions of Section 70.5( b)( 7) of the proposal requiring compliance plans and schedule are in conflict with the Title IV program, and that Title IV affected units will be able to satisfy compliance plan requirements by a simple statement as required in Section 408( b). Two industry commenters ( IV D 227 and IV D 262) proposed that EPA clarify that the acid rain portion of a compliance plan under Section 70.5( b)( 7) of the proposal refers solely to Title IV affected units that select an alternative means of compliance with Title IV requirements.

Response: Affected sources under Title IV are typically subject to several applicable requirements under the Act. With respect to the compliance plan requirement for affected sources, Section 70.5( c)( 8)( v) of the final rule states that the compliance plan content requirements of this paragraph shall apply and be included in the acid rain portion of a compliance plans for affected sources, except as specifically superseded by regulations promulgated under Title IV with regard to the schedule and method( s) the source will use to achieve compliance with acid rain limitations. The Administrator believes that Section 408( b) of the Act describes only the compliance planning requirements for specific requirements found in Title IV. Section 408( b) states that "... submission of a statement by the owner or operator... that the unit will meet the applicable emissions limitation requirements... or... will hold allowances to emit not less than the total annual emissions of the unit shall be deemed to meet the proposed and approved compliance planning requirements of this section and Title V, except that, for any unit that will meet the requirements of this title by means of an alternative method of compliance..., the compliance plan, permit application, and permit shall include, for each alternative method of compliance a comprehensive description of the schedule and means by which the unit will rely" on such methods. Thus, affected sources are required to follow all of the compliance plan requirements included in Section 70.5( c)( 8) for: ( 1) all non Title IV applicable requirements ( e. g. SIP limits, NAAQS requirements), and ( 2) all units for which the source uses an alternative method of compliance to meet the requirements of Title IV.

Comment: One commenter from a local agency ( IV D 153) questioned what the effect would be if a source that was initially out of compliance submitted a compliance plan, and began to operate under that plan before it had final approval, only to have the compliance plan rejected. Commenter IV D 252 indicated that compliance schedules submitted with compliance plans during the pendency of an application before a permit is issued are enforceable.

Response: A schedule of compliance contained in an application is not an enforceable part of a Part 70 permit because a permit has not been issued. A source that submits a compliance plan and proposed schedule of compliance with its application, and operates pursuant thereto during the pendency of the application, bears the risk that the proposed application will not be accepted as submitted. Just as the compliance plan is not a required element of the permit, it does not in any way shield the source from enforcement or necessarily predict the ultimate terms of the permit or compliance schedule.

However, once the permit is issued, the source would have to comply with the schedule of compliance contained in the permit, or be in violation for not complying with a permit condition. A schedule of compliance contained in a permit is enforceable by citizens and EPA as part of a permit and can only be changed through permit modification procedures.

Comment: One commenter ( IV D 303) indicated that compliance plan schedules should allow for unforeseen delays, while another industry commenter ( IV D 124) did not want any information on noncompliance that is revealed in the application compliance plan to be used as a basis for later enforcement.

Response: Schedules of compliance must contain dates on which certain milestones or final compliance will be reached. If these dates are not reached, a violation will occur. If the source encounters unforeseen delays in reaching their goals, they must undergo permit revision procedures to change any date contained in the schedule of compliance, as these dates are enforceable parts of the permit. During the permit application preparation process, the source has the opportunity to suggest dates for meeting milestones and final dates for compliance and to avoid excessive permit revisions, they should select dates that allow a certain amount of reasonable unforeseen delay.

The permit application will contain a certification of the compliance status of the source with regard to each applicable requirement as of the expected date of permit issuance. Information concerning noncompliance in an application would not be used for enforcement for failure to comply with the terms of a Part 70 permit but could be used to enforce failure to timely obtain a permit. Such information may be used for other enforcement purposes that independently require compliance such as might be contained in a SIP, or consent decree.

Comment: Commenter IV D 428 requested that the compliance plan be enforceable by both EPA and citizens.

Response: The final rule has been changed to require compliance plans from all sources applying for Part 70 permits and Section 70.6( b)( 1) now requires all terms and conditions of Part 70 permits to be enforceable by the Administrator and citizens under the Act. Compliance plans with schedules of compliance are required in permit applications, while only schedules of compliance are required to be in permits. Therefore, only schedules of compliance will be an enforceable part of a permit.