[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Proposed Rules]
[Pages 57822-57846]
[FR Doc No: 2016-20029]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-HQ-OAR-2016-0194; FRL-9951-09-OAR]
RIN 2060-AS61

Revisions to the Petition Provisions of the Title V Permitting
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) proposes to
revise its regulations to streamline and clarify processes related to
submission and review of title V petitions. This notice covers five key
areas, each of which should increase stakeholder access to and
understanding of the petition process and aid the EPA's review of
petitions. First, the EPA is proposing regulatory provisions that
provide direction as to how petitions should be submitted to the
agency. Second, the EPA is proposing regulatory provisions that
describe the expected format and minimum required content for title V
petitions. Third, the proposal clarifies that permitting authorities
are required to respond to significant comments received during the
public comment period for draft title V permits, and to provide that
response with the proposed title V permit to the EPA for the agency's
45-day review period. Fourth, guidance is provided in the form of
``recommended practices'' for various stakeholders to help ensure title
V permits have complete administrative records and comport with the
requirements of the Clean Air Act (CAA or Act). Fifth, to increase
familiarity with the post-petition process, this notice presents
information on the agency's interpretation of certain title V
provisions of the CAA and its implementing regulations regarding the
steps following an EPA objection in response to a title V petition, as
previously discussed in specific title V orders.

DATES: Comments: Comments must be received on or before October 24,
2016.
    Public Hearing: If anyone contacts EPA requesting a public hearing
on or before September 6, 2016, we will hold a public hearing.
Additional information about the hearing would be published in a
subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2016-0194, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or withdrawn. The
EPA may publish any comment received to its public docket. Do not
submit electronically any information you consider to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute. Multimedia submissions (audio, video, etc.)
must be accompanied by a written comment. The written comment is
considered the official comment and should include discussion of all
points you wish to make. The EPA will generally not consider comments
or comment contents located outside of the primary submission (i.e., on
the Web, Cloud, or other file sharing system). For additional
submission methods, the full EPA public comment policy, information
about CBI or multimedia submissions, and general guidance on making
effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Questions concerning these proposed
rule revisions should be addressed to Ms. Carrie Wheeler, U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Air Quality Planning Division, (C504-05), Research Triangle
Park, NC 27711, telephone number<PHONE_NUMBER>, email at
<EMAIL_ADDRESS>To request a public hearing or information
pertaining to a public hearing on the proposed regulatory revisions,
contact Ms. Pamela Long, U.S. Environmental Protection Agency, Office
of Air Quality Planning and Standards, Air Quality Policy Division,
(C504-01), Research Triangle Park, NC 27711; telephone number (919)
541-0641; fax number<PHONE_NUMBER>; email address<EMAIL_ADDRESS>(preferred method of contact).

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

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
    C. How can I find information about a possible hearing?

    D. Where can I obtain a copy of this document and other related
information?
II. Overview of Proposed Regulatory Revisions and Information in
This Notice
III. Background
    A. The Title V Operating Permits Program
    B. Statutory and Regulatory Basis for This Proposal
    C. Title V Petition Process and Content
    D. Prior Interpretations and Applications of the Title V
Provisions
IV. Proposed Revisions to Title V Regulations
    A. Additional Legal Background for the Proposed Revisions to the
Part 70 Rules
    B. Electronic Submittal of Petitions
    C. Required Petition Content and Format
    D. Proposed Administrative Record Requirements
V. Pre- and Post-Petition Process Information/Guidance
    A. Recommended Practices for Complete Permit Records
    B. Post-Petition Process
VI. Implementation
VII. Proposed Determination of Nationwide Scope and Effect
VIII. Environmental Justice Considerations
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations.
    K. Determination Under Section 307(d)
X. Statutory Authority

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by the proposed revisions to
the EPA's regulations include anyone who intends to submit a title V
petition on a proposed title V permit prepared by a state, local or
tribal title V permitting authority pursuant to its EPA-approved title
V permitting program. Entities also potentially affected by this rule
include state, local and tribal permitting authorities responsible for
implementing the title V permitting program. Entities not directly
affected by this proposed rule include owners and operators of major
stationary sources or other sources that are subject to title V permit
requirements, as well as the general public who would have an interest
in knowing about title V permitting actions and associated public
hearings but do not intend to submit a petition.

B. What should I consider as I prepare my comments for the EPA?

    1. Submitting CBI. Do not submit this information to the EPA
through http://www.regulations.gov or email. Clearly mark the specific
information that you claim to be CBI. For CBI in a disk or CD-ROM that
you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and
then identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket.
    2. Tips for preparing comments. When preparing and submitting your
comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

C. How can I find information about a possible public hearing?

    To request a public hearing or information pertaining to a public
hearing, contact Ms. Pamela Long, Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, by phone at (919) 541-
0641 or by email at<EMAIL_ADDRESS>
D. Where can I obtain a copy of this document and other related
information?

    In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at the regulations
section of our Title V Operating Permits Web site, under Regulatory
Actions, at http://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions. A ``track changes'' version of the
full regulatory text that incorporates and shows the full context of
the proposed changes to the existing regulations in this proposal is
also available in the docket for this rulemaking.

II. Overview of Proposed Regulatory Revisions and Information in This
Notice

    Title V of the CAA establishes an operating permit program. Section
505 of the CAA requires permitting authorities to submit a proposed
title V permit to the EPA Administrator for review for a 45-day review
period before issuing the permit as final. The Administrator shall
object to issuance of the permit within that 45-day review period if
the Administrator determines that the permit contains provisions that
are not in compliance with the applicable requirements under the CAA.
If the Administrator does not object to the permit during the 45-day
EPA review period, any person may petition the Administrator within 60
days after the expiration of the 45-day review period to take such
action (hereinafter ``title V petition'' or ``petition''). The title V
petition provisions of the current implementing regulations found at 40
CFR part 70 largely mirror the CAA, and have not been revised since
original promulgation in 1992. With 20 years of experience with title V
petitions as well as feedback from various stakeholders, the agency is
now proposing changes to 40 CFR part 70 intended to provide clarity and
transparency to the petition process, and to improve the efficiency of
that process.\1\
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    \1\ The revisions proposed in this rule only impact 40 CFR part
70, which applies to federally-approved state, local, and tribal
operating permit programs; 40 CFR part 71, which covers the title V
operating permit program for permits issued under the EPA's federal
permitting authority, utilizes a different administrative review
process, through the Environmental Appeals Board (EAB). The EAB has
its own review process for title V permits issued under 40 CFR part
71 that is separate and distinct from the process of petitioning the
Administrator for an objection to a 40 CFR part 70 permit; thus,
these proposed changes are intended to streamline and clarify the
EPA's title V petition review process under 40 CFR part 70 only.
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    The changes proposed and the information provided in the preamble
to the proposal are intended to benefit permitting authorities,
permitted sources, and potential petitioners, as well as the EPA.
Permitting authorities and permitted sources are expected to benefit by
early consultation with the appropriate EPA Regional Office when the
permitting authority is preparing a permit to ensure it includes
conditions that assure compliance with applicable requirements under
the CAA and part 70). These early actions should minimize potential
permit deficiencies and reduce the associated likelihood that a
petition will be submitted on that title V permit.
    Potential petitioners are expected to benefit by having better
notification of permits and review deadlines (e.g., the EPA is
proposing to post on EPA Regional Web sites when a proposed permit is
received and the corresponding 60-day deadline for submitting a
petition) and by better

access to permitting decision information (e.g., the permitting
authority's written response to comments). These updates will clarify
the expected minimum content of petitions and provide a standardized
format, simplifying the process and enhancing the likelihood that
petitions will be clear and complete. In addition, potential
petitioners may also derive a benefit from more efficient responses to
petitions and a better understanding of the process.
    The EPA is expected to benefit by improving the agency's ability to
meet its statutory obligations to review proposed permits, respond to
title V petitions and provide more transparency in the title V petition
process. These were concerns expressed by a Clean Air Act Advisory
Committee task force in recommendations provided to the agency in
2006.\2\ The EPA believes that the proposed regulatory revisions and
shared information are responsive to these concerns and could, if
finalized, improve the efficiency of the agency's response.
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    \2\ In 2004, the Clean Air Act Advisory Committee (CAAAC)
established a Task Force to evaluate the title V program. The 18-
member panel, comprised of industry, state, and environmental group
representatives, identified what Committee members believed was and
was not working well. After hosting public meetings and receiving
written feedback, and compiling the information with the personal
experience of panel members, the Title V Task Force issued a final
report that highlighted concerns and recommendations for
improvement. See, Final Report to the Clean Air Act Advisory
Committee on the Title V Implementation Experience: Title V
Implementation Experience (April 2006). The Title V Task Force Final
Report is available at: https://www.epa.gov/caaac/caaac-reports.
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    The proposed regulatory revisions described in Section IV of this
notice would, among other things: (1) Provide direction as to how title
V petitions should be submitted to the agency, including encouraging
the use of an electronic submittal system as the preferred (but not
exclusive) method to submit title V petitions; (2) describe mandatory
content and format for title V petitions, which is intended to clarify
the process for petitioners and improve the EPA's ability to review and
act on petitions efficiently; and (3) require permitting authorities to
respond in writing to significant comments received during the public
comment period on a draft title V permit and to provide that written
response to the EPA along with the proposed title V permit at the start
of the EPA's 45-day review period. This proposal also requests comment
on the proposed revisions to the regulations governing the CAA title V
petition process, as well as comment on questions related to
potentially establishing page limits on title V petitions. The proposed
revisions to the 40 CFR part 70 regulations are described more fully in
Section IV of this notice.
    Separate from the regulatory revisions proposed in Section IV,
Section V.A of this notice provides guidance on ``recommended
practices'' for permit development for various stakeholders that, when
followed, helps to ensure permits have complete administrative records
and comport with the requirements of the CAA. Lastly, to increase
stakeholder familiarity with the post-petition process, Section V.B.
provides information concerning the agency's interpretation of certain
provisions of title V of the CAA and the implementing regulations at
part 70 regarding the steps following an EPA objection in response to a
title V petition, as previously discussed in specific title V orders.
The following paragraphs briefly provide additional information on each
area.
    First, in order to reduce confusion with and add clarity to the
process of submitting title V petitions, the EPA has developed a
centralized point of entry for all title V petitions using an
electronic submittal system. As described in Section IV.A of this
notice, the EPA encourages petitioners to use this electronic system
when submitting title V petitions, which will improve customer service
by allowing for better access to and tracking of petitions. This is the
preferred method identified in the proposed regulatory revisions that
would be acceptable to use to submit a title V petition to the agency.
Alternative methods for submittal are also identified in this notice.
    Second, with regard to petition content, the EPA is proposing
regulatory revisions that would specify requirements for mandatory
petition content and standard formatting for all petitions. This is
expected to benefit potential petitioners by ensuring completeness
while promoting streamlining and improving the EPA's ability to review
and act on petitions efficiently. In its orders responding to title V
petitions, the EPA has already identified key elements that are
critical for demonstrating that a title V permit does not assure
compliance with applicable requirements under the CAA or under the part
70 regulations, and has explained their relevance to its
determinations. In this proposal, the EPA is proposing new regulatory
language to codify what has already been discussed in prior orders. If
finalized, petitioners would be expected to follow these requirements
and include this content following a standard format. As described
later in this notice and in the proposed regulatory text, this content
includes identifying where the issue being raised in the title V
petition was raised during the public comment period on the draft title
V permit and addressing the permitting authority's response to the
comment in the petition in order to demonstrate that an objection is
warranted.
    Along with the proposed changes and requests for comment regarding
petition content and format in Section IV.B of this notice, the EPA
proposes to add new regulatory language to 40 CFR 70.8 that would
require a petitioner to send a copy of the petition to both the
permitting authority and the permit applicant. The current title V
regulations do not have provisions implementing this requirement of
section 505(b)(2) of the Act. Therefore, this rule proposes to insert a
requirement into the part 70 rules mirroring the Act's requirement in
order to ensure consistency with this provision of the statute.
    Third, Section IV.C of this notice contains requirements for
certain procedures related to responding to significant public comments
on the draft title V permit, as well as the administrative record for
and submittal of proposed title V permits to the EPA by permitting
authorities. The changes being proposed now would require that all
permitting authorities respond to significant comments received on
draft permits. The EPA is also proposing that the 45-day review period
under section 505(b)(1) would not begin until the permitting authority
forwards the proposed permit, the written response to comments (RTC) or
statement that no public comments were received, and the statement of
basis document, to the EPA for its review. These changes are expected
to benefit permitting authorities and permitted sources by resulting in
a more complete permit record and greater clarity for all stakeholders.
If finalized, these changes may result in a need to revise at least
some state, local and tribal part 70 programs.
    In addition to these three areas, as part of the agency's effort to
share information with stakeholders about the title V petition process,
this notice includes guidance to help ensure permits have complete
administrative records and comport with the requirements of the CAA.
Presented in the form of ``recommended practices'' for stakeholders,
this guidance is shared in the spirit of providing information and
context to give a more comprehensive view of the title V

petition process, including the time before a petition may be filed.
Following the suggested recommended practices contained in Section V.A
of this notice is expected to positively affect the permit issuance
process resulting in better permits and may reduce the likelihood that
a title V petition will be submitted on a title V permit.
    All four of the previously mentioned areas should help to improve
title V permits issued by permitting authorities, promote access to and
provide better understanding of the title V petition process for
potential petitioners, and reduce delays in decisions and support the
agency's efforts to meet its obligations in responding to title V
petitions. The proposed revisions to the part 70 regulations associated
with the first three key areas are anticipated to increase transparency
and add clarity to the title V petition submittal, review, and response
processes. Codifying existing practices into title V regulations of the
CAA is also expected to make the EPA petition review process more
efficient. In addition, providing ``recommended practices'' for
stakeholders, including some related to permit issuance, also increases
transparency and clarity to further improve the stakeholder experience
and understanding surrounding title V petitions.
    Section V.B of this notice discusses steps following the EPA's
issuance of an objection in response to a title V petition,
particularly where the state, local, or tribal permitting authority
subsequently amends the permit terms and conditions and/or the permit
record in response to the EPA's objection. This process is often
referred to as the post-petition process. The information provided in
Section V.B reflects interpretations of certain statutory and
regulatory provisions related to this aspect of the title V petition
process that have previously been discussed by the EPA, including in
title V petition orders. This information is repeated as a convenience
to stakeholders and the general public: The agency is not proposing to
alter its interpretation of that process in this notice and the
regulatory revisions proposed in this notice do not relate to or modify
this interpretation. The agency is not soliciting comment on this
interpretation or otherwise reopening or revising the already-issued
title V petition orders or other EPA documents in which it has
previously been discussed. Rather, this discussion is included to
provide additional transparency and clarity.
    Finally, as a convenience to stakeholders and the general public,
and to provide context and background that informs how the EPA
determines whether to grant an objection and to promote awareness of
the EPA's existing interpretation of key provisions of section
505(b)(2) of the Act, Section III.D of this notice includes a summary
of some past orders responding to title V petitions and court decisions
addressing the burden on a title V petitioner to demonstrate that an
objection is warranted.

III. Background

A. The Title V Operating Permits Program

    Congress amended the CAA in 1990 to add title V, now found at 42
U.S.C. 7661-7661f, to assist in compliance and enforcement of air
pollution controls. CAA Amendments of 1990, Public Law 101-549,
sections 501-507, 104 Stat. 2399, 2635-48 (1990). Before this, the CAA
pollution control requirements that might apply to a particular source
could be found in many different provisions of the Act and its numerous
regulations. As one court opinion has described it: ``Before 1990,
regulators and industry were left to wander through this regulatory
maze in search of the emission limits and monitoring requirements that
might apply to a particular source. Congress addressed this confusion
in the 1990 Amendments by adding title V of the Act, which created a
national permit program that requires many stationary sources of air
pollution to obtain permits that include relevant emission limits and
monitoring requirements.'' Sierra Club v. EPA, 536 F.3d 673, 674 (D.C.
Cir. 2008).
    Accordingly, title V of the Act establishes an operating permits
program for major sources of air pollutants, as well as certain other
sources. CAA section 502(a). Under title V of the CAA, states were
required to develop and submit to EPA for approval title V permitting
programs consistent with program requirements promulgated by the EPA.
Those requirements are now found in 40 CFR part 70. Most states,
certain local agencies, and one tribe have approved part 70
programs.\3\ As part of an approved part 70 program, title V of the CAA
requires every major source and certain other sources to apply for and
operate pursuant to an operating permit. CAA sections 502(a) and 503;
see also 40 CFR 70.5(a) and 70.1(b). It further requires that the
permits contain conditions that assure compliance with all of the
sources' applicable requirements under the Act, including the
requirements of the applicable implementation plan. CAA section 504(a);
see also 40 CFR 70.1(b) and 70.6(a)(1).
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    \3\ The Southern Ute Indian Tribe has an EPA-approved operating
permit program under 40 CFR part 70.
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    Prior to the title V program, CAA requirements for major sources of
air pollutants were implemented in multiple and various ways. As a
lawmaker involved in the 1990 CAA Amendments explained:

    Title V creates, for the first time, a unifying permit program
for facilities subject to the [A]ct's various control requirements.
In the past, some provisions of the Clean Air Act--for example, the
nonattainment and PSD new source requirements--were, and will
continue to be, implemented through preconstruction permits. Other
control requirements were effected without Federal, or in some
cases, State permits--for example, NESHAPS and NSPS--although States
often incorporated these requirements into their own permit
programs.\4\
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    \4\ 136 Cong. Rec. E3663, E3673 (1990) (Speech of Rep. Michael
Bilirakis), reprinted in Environment and Natural Resources Policy
Division of the Congressional Research Service of the Library of
Congress, 6 A Legislative History of the Clean Air Act Amendments of
1990, at 10768 (1993) [hereinafter CAAA Leg. Hist.].

    More specifically, a title V permit must contain enforceable
emission limits and standards, including operational requirements and
limitations, and such other conditions as necessary to assure
compliance with all applicable requirements that apply to the source at
the time of permit issuance, as well as the monitoring, recordkeeping,
and reporting requirements to assure compliance. In sum, the title V
permit program is a vehicle for ensuring that air quality control
requirements are appropriately applied to a source's emission units and
for assuring compliance with such requirements.
    For the most part, title V of the CAA does not impose new pollution
control requirements on sources. The definition of ``applicable
requirements'' in the part 70 regulations includes many standards and
requirements that are established through other CAA programs, such as
standards and requirements under sections 111 and 112 of the Act, and
terms and conditions of preconstruction permits issued under the New
Source Review programs. 40 CFR 70.2. Once those air quality control
requirements are established in those other programs, they are
incorporated into a source's title V permits as appropriate. Hence, a
title V permit is a comprehensive document that identifies all the
specific CAA requirements that must be met by a source in order to
operate. Developing

such a comprehensive document can be a complex process that involves
some harmonization of all the source's applicable requirements. As a
lawmaker involved in the 1990 CAA Amendments explained:

    The creation of the new permit program in title V provides an
opportunity and an obligation for EPA to harmonize the substantive
provisions of the other titles in this complex legislation. Many of
the same sources and pollutants will be controlled under multiple
titles--the same facilities and pollutants will often be controlled
under the hazardous air pollutant, nonattainment, and acid rain
programs. EPA must make every effort to harmonize and prevent
unproductive duplication among those titles. The permit provisions
of title V provide a focus for this harmonization, although title V
does not change, and gives EPA no authority to modify, the
substantive provisions of these other titles.\5\
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    \5\ 136 Cong. Rec. E3663, E3673 (1990) (Speech of Rep. Michael
Bilirakis), reprinted in 6 CAAA Leg. Hist., at 10768 (1993).

    As this language suggests, in providing an opportunity for
harmonization through title V of the CAA, Congress did not replace or
remove the procedures and requirements for establishing substantive
requirements that exist in other provisions of the CAA. Nor did
Congress alter or supplant the opportunities for public participation
and administrative and judicial review that are found in other CAA
programs, such as those for public participation and judicial review of
certain final agency actions under section 307 of the Act. In addition,
the Act requires that title V permitting programs provide opportunities
for public participation in title V permitting processes and an
opportunity for judicial review in state court. CAA section 502(b)(6);
see also 40 CFR 70.4(b)(3)(x) (judicial review) and 70.7(h) (public
participation). The petition process co-exists with those provisions,
without superseding them.
    Although title V of the CAA does not generally impose new pollution
control requirements on sources, it does require that certain
procedural measures be followed especially with respect to assuring
compliance with underlying applicable requirements, and it also
requires sources to pay certain fees. For example, title V of the CAA
requires permits to contain adequate monitoring, recordkeeping, and
reporting provisions to assure sources' compliance with permit terms
and conditions. See CAA 504(c); Sierra Club v. EPA, 536 F.3d 673 (D.C.
Cir. 2008). The part 70 regulations contain monitoring rules designed
to satisfy this statutory requirement. Finally, as an additional
measure to ensure permits are in compliance with the CAA, the title V
program provides for public participation at various steps in the
permitting process, including the opportunity to submit a title V
petition.

B. Statutory and Regulatory Basis for This Proposal

    In general terms, as noted above, the title V permit program was a
significant development that established new procedural requirements
for permitting authorities and sources. In crafting the program,
Congress balanced the benefit of a single document that contains all
applicable requirements of the Act with the need to process these
complex documents in an efficient manner. As part of the effort to
promote efficient implementation of the operating permits program, the
provisions relating to title V objections establish an orderly process
with specific deadlines, which give the EPA an opportunity to raise
objections to a title V permit before it is issued and which give any
person the opportunity to timely raise specific issues to the EPA
through a title V petition. In light of the complexities of
implementing a program of title V's scope, a statement of one lawmaker
in the legislative history indicates that the opportunity to
``challenge EPA's failure to object'' through the petition process was
``designed to avoid delays'' while preserving the discretion of both
the EPA and the states.\6\
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    \6\ 136 Cong. Rec. E3663, E3675 (1990) (Speech of Rep. Michael
Bilirakis), reprinted in 6 CAAA Leg. Hist. at 10774.
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    More specifically, under CAA section 505(a), and the current
implementing regulations found at 40 CFR 70.8(a), permitting
authorities are required to submit each proposed title V permit to the
EPA for review.\7\ Upon receipt of a proposed permit and all necessary
supporting information, the Administrator has 45 days in which to
object to the final issuance of the permit if he/she determines that
the proposed permit is not in compliance with applicable requirements
of the Act, including the requirements of the applicable state
implementation plan (SIP), or part 70 requirements. CAA section
505(b)(1) and 40 CFR 70.8(c)(1).
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    \7\ As the part 70 rules in 70.8(c) and (d) largely mirror the
Act's provisions, the statutory and regulatory requirements are
addressed together in this background discussion.
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    As the EPA explained when proposing the initial title V regulations
in 1991, the Act limits the EPA's opportunity for its initial review
and an objection based on that review to 45 days in order to minimize
delays. 56 FR 21749 (May 10, 1991). If the Administrator objects under
CAA 505(b)(1), he/she must provide a statement of the reasons for the
objection, providing a copy of both the objection and the statement to
the permit applicant. CAA 505(b)(1); see also 40 CFR 70.8(c)(1).
    If the Administrator does not object during the 45-day review
period, consistent with section 505(b)(2) of the CAA and 40 CFR
70.8(d), any person may petition the Administrator within 60 days after
the expiration of the EPA's 45-day review period to object to the
permit. The Administrator shall grant or deny such a petition within 60
days after it is filed. CAA section 505(b)(2) establishes several
requirements related to such petitions. Among other things, it provides
that such a petition shall be based only on objections to the permit
that were raised with reasonable specificity during the public comment
period, unless the petitioner demonstrates that it was impracticable to
raise objections during that period or the grounds for objection arose
after completion of the public comment period. It also provides that
the Administrator shall issue an objection if the petitioner
demonstrates that the permit is not in compliance with the requirements
of the CAA, including the requirements of the applicable implementation
plan.
    The implementing regulations are found in 40 CFR 70.8(d) and
largely mirror this provision. As the EPA explained in proposing the
initial title V regulations, the title V petition opportunity serves an
important purpose because title V permits are frequently complex
documents, and given the brevity of the agency review period there may
be occasions when the EPA does not recognize that certain permit
provisions are not in compliance with applicable requirements of the
Act. 56 FR 21751 (May 10, 1991). CAA section 505(b)(2) states that the
Administrator ``shall'' object if the petitioner makes the required
demonstration. If the Administrator denies a petition for an objection,
CAA 505(b)(2) provides that denial is subject to judicial review under
CAA section 307; however, under CAA section 505(c), no objection is
subject to judicial review until the Administrator has taken final
action to issue or deny the permit. Further, the requirements under CAA
section 505(b)(2) may not be delegated by the Administrator.
    In addition to the provisions of title V, the rulemaking of
provisions under CAA section 307(d) are relevant to this notice. The
Administrator is applying the rulemaking provisions of CAA section
307(d) to the rulemaking discussed in this notice, pursuant to

CAA section 307(d)(1)(V), which provides that the provisions of 307(d)
apply to ``such other actions as the Administrator may determine.''

C. Title V Petition Process and Content

    After 20 years of experience in implementing the title V petition
process, the EPA has identified some general trends in petition content
and aspects of the petition review process that pose challenges for
potential petitioners in preparing petitions and for the EPA in
providing an efficient response to petitions. These are described in
this section of the notice to provide additional context for this
proposal. This proposed rulemaking is aimed in part at increasing
stakeholder access to and understanding of the petition process and
increasing the efficiency of the agency's response to petitions
received and at mitigating some of the factors that contribute to
poorly prepared or incomplete petitions, misunderstanding of applicable
permit and CAA requirements, and longer response times. These factors
include: (1) The lack of administrative requirements around petition
submittals, which results in a variety of inconsistent methods used by
petitioners; (2) the lack of specific rules regarding petition content,
which results in considerable inconsistency in the format and content
of petitions; and (3) the need to often deal with numerous and highly
complex issues that arise in title V petitions given that title V
permits must address many applicable requirements. These include issues
relating to compliance with the requirements of the prevention of
significant deterioration (PSD) permitting program, the hazardous air
pollutant program (i.e., requirements implementing the provisions of
CAA 112), and other air quality issues. For example, petitioners often
raise issues related to compliance with the requirements of the major
and minor preconstruction permit programs, such as the PSD permitting
requirements found in part C of Title I of the Act. This permitting
program has a separate process under the CAA, its implementing
regulations and SIPs, for evaluating applicability of the permitting
requirements, determining the appropriate terms and conditions for
permits, and for public participation and administrative and/or
judicial review of those permits. At times, the PSD issues raised in
the context of a title V petition relate to projects that occurred a
considerable time in the past, and in some situations, the title V
permit record may not contain all the relevant information for
understanding the determinations that were made. For these reasons,
consideration of these issues in the title V petition context can be
time-consuming to research and complex to resolve, even to come to the
seemingly simple determination that the permit record is inadequate.
Further, title V petitions frequently include lengthy arguments that
primarily concern CAA programmatic or policy issues, rather than the
terms of a particular permit.
    Over time, petitions have raised increasingly more complex policy,
legal, and technical matters. Through the review of such extensive and
complicated petitions, the petition review process has evolved into a
resource-intensive effort by the EPA. To increase stakeholder
understanding of the title V petition process, help ensure consistent
presentation of critical information in such petitions, and facilitate
more efficient review of them, the EPA is proposing to revise its
regulations to establish procedural parameters which, if finalized,
would govern the title V petition process moving forward. As described
in more detail in Section IV of this notice, this proposal includes
proposed requirements for petition submittal, petition content and
format, and certain administrative record requirements. As mentioned
previously, one of the primary goals of the proposed changes is to
improve stakeholder access to and understanding of the petition process
and improve the agency's ability to meet its statutory obligations to
review proposed permits and respond to title V petitions, in light of
the overall structure of the CAA.
    Yet another overarching factor that hampers the current petition
review process is the confusion or lack of familiarity with the process
itself. In the 2006 Title V Task Force Final Report noted earlier, for
example, the CAAAC task force expressed a concern with the lack of
transparency in the title V petition process. This concern has been
echoed in the years since the 2006 report through feedback the agency
has received from various stakeholders. In response, the EPA has tried
to provide more explanation and insight into the title V petition
process in the administrative orders it issues in responding to
petitions. Some of these issues have also been discussed in the
opinions courts have issued in reviewing such EPA orders. However, the
EPA expects that not all stakeholders, including the public, may have
read these response orders or related court decisions.
    Therefore, the next section of this notice seeks to provide
additional transparency concerning the petition process by repeating
some of the relevant interpretations of statutory and regulatory
provisions that the EPA has previously explained in title V petition
orders, as well as interpretations of certain provisions related to the
title V petition process provided in judicial opinions. Reiterating
these prior statements concerning the EPA's application and
interpretation of the statute to reviewing title V petitions may also
provide useful context for the proposed changes to 40 CFR part 70,
which are discussed in Section IV of this notice.

D. Prior Interpretations and Applications of the Title V Provisions

    This section includes a discussion of certain aspects of the
statutory elements of CAA section 505(b)(2) as well as the implementing
regulations that have previously been interpreted by the EPA and/or
courts. The discussion that follows serves to inform the public,
stakeholders, permitting authorities, and other interested parties of
these interpretations. Although the matters discussed in this section
are available to the public,\8\ and in some cases have been available
for years and/or already subject to judicial review, in the interest of
transparency and clarity, the agency is collecting these
interpretations and judicial decisions in this notice. That information
is repeated here merely as a convenience for the public. The agency is
not in this notice proposing to change these previously-presented
interpretations, soliciting comments on these interpretations, or
reopening the already-issued title V orders or other EPA documents in
which these interpretations were discussed. None of the regulatory
revisions proposed in this notice would alter these interpretations or
the prior title V orders or other EPA documents in which these
interpretations were discussed.
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    \8\ The Title V Petitions Database contains petitions and EPA
Orders responding to petitions and is available at: https://www.epa.gov/title-v-operating-permits/title-v-petition-database.
---------------------------------------------------------------------------

1. ``Threshold'' Requirements
    Certain of the requirements under CAA section 505(b)(2) related to
petitions are sometimes referred to as ``threshold'' requirements,
which provide some procedural requirements and some limitations on the
scope of title V petitions. These include, for example, that the
petition be filed within 60 days following the agency's 45-day review
period. Another example is the requirement that the petition be based
only on objections to the permit

that were raised with reasonable specificity during the public comment
period provided by the permitting agency. The agency has previously
addressed these ``threshold'' issues in prior title V orders, and some
of those statements are reiterated in this section.
a. Timeliness
    Generally speaking, the first step in the petition response process
is for the agency to ascertain if the petition was timely filed
pursuant to CAA section 505(b)(2). The Act and implementing regulations
at 40 CFR 70.8(d) provide for a 60-day window in which to file a title
V petition, which runs from the expiration of the EPA's 45-day review
period. A petition received after the 60-day petition deadline is not
timely. The agency is aware that because the petition period runs from
the end of the EPA's 45-day review period, and the date a proposed
permit is received by the EPA is not always apparent, the petition
deadline is not always readily apparent. The agency currently
encourages permitting authorities to provide notifications to the
public or interested stakeholders regarding the timing of proposal of
permits to the EPA, for example making that information available
either online, such as Region 4 has done on the EPA Web site, ``Region
4 Proposed Title V Permits and State Contacts,'' \9\ or in the
publication in which public notice of the draft permit was given.
---------------------------------------------------------------------------

    \9\ EPA Region 4's Web site provides links with lists of permits
that have been proposed and are still under the public petition
deadline, organized by state: https://www.epa.gov/caa-permitting/region-4-proposed-title-v-permits-and-state-contacts.
---------------------------------------------------------------------------

b. Reasonable Specificity
    The second ``threshold'' requirement described in the statute
regards the content of a petition. CAA section 505(b)(2) requires that,
unless one of the enumerated exceptions applies, the petition must be
based only on objections to the permit that were raised with reasonable
specificity during the public comment period provided by the permitting
agency. Subject to the exceptions contained in the provision, the EPA
understands this statutory language to require that the issues
presented in a petition be raised during the public comment process
with reasonable specificity. Such issues could, however, be raised in
comments filed by a commenter other than the petitioner.
    The EPA continues to believe that, as stated in the preamble to the
1991 part 70 proposal, Congress did not intend for petitioners to
create an entirely new record before the EPA that the permitting
authority had no opportunity to address. The requirement to raise
issues ``with reasonable specificity'' places the burden on the
petitioner. Unless there are unusual circumstances, the Petitioner
needs to provide evidence that would support a finding of noncompliance
with the Act to the permitting authority before it is raised in a
petition. See, 56 FR 21712, 21750 (1991).
    Where an issue is raised to the EPA in a title V petition without
first raising it with reasonable specificity to the permitting
authority to give it the opportunity to address the issue, the
Administrator has generally denied such claims consistent with the
statutory requirements. The EPA has specifically addressed the
reasonable specificity threshold requirement in a number of title V
petition orders. Some key highlights are summarized next.
    In 2013 in the Luminant Order, the EPA responded to a petition that
raised a number of issues, including several that were raised only in
general terms or not raised at all during the public comment period by
any commenter. See, In the Matter of Luminant Generating Station,
Petition, Order on Petition No. VI-2011-05 (January 15, 2013). For
example, the petitioners claimed that the permit in question failed to
identify emission units that were associated with permit by rules to
which the facility was subject. The EPA noted that no mention was made
in the public comments concerning the lack of identification of
emission units, and denied the claim. Id. at 12. The Administrator
similarly denied other claims not raised with reasonable specificity
during the public comment period: The comments did not present evidence
or analysis to support these petition claims, and thus the state had no
opportunity to consider and respond to those claims. Id. at 6, 11, 13,
15. The Luminant Order also included a discussion of the reasonable
specificity standard, that absent unusual circumstances, the
requirement to raise issues ``with reasonable specificity'' places the
burden on the petitioner to bring forward evidence before the State
that would support a finding of noncompliance with the CAA. See id. at
5.
    As noted above, the Act contains two enumerated exceptions to the
``reasonable specificity'' requirement. Namely, issues that were not
raised with reasonable specificity during the public comment period can
be raised in a petition if the petitioner demonstrates that it was
impracticable to raise such objections within such period or unless the
grounds for such objection arose after such period. CAA section
505(b)(2). For an issue to fit within one of these exceptions, the
petitioner would have to demonstrate the impracticality, or show that
the grounds arose after the comment period. The EPA has also addressed
this issue in petition orders.
    One example is in the 2012 San Juan Generating Station Order, where
the EPA responded to a petition claim that the permit failed to assure
compliance with PSD applicable requirements because it did not address
significant increase of a specific pollutant after a change at the
facility. See In the Matter of Public Service Company Of New Mexico,
San Juan Generating Station (SJGS), Order on Petition VI-2010 (February
15, 2012) at 10. According to the petitioners, these concerns were not
raised during the comment period because the State did not make the
information about the significant emission increase available until
after the public comment period, when the permitting authority noted in
its response to the EPA that the change triggered PSD and expressed its
intent to add a title V compliance schedule to the permit. The
Administrator found that in this case, the petitioners demonstrated
that the grounds arose after the comment period and therefore, the EPA
would consider their claim on this matter. See id. at 10.
c. Scope of Permit Action
    Petitions may be submitted on several types of proposed title V
permits, such as proposed initial permits, permit renewals, or permit
revisions, which may include minor or significant modifications to the
title V permit. Some stakeholders have indicated there may be confusion
on the matter of petition opportunities, particularly for minor
modification actions. In cases where the permitting authority has not
provided for a prior public comment period on a minor permit
modification, petitioners can still submit a petition to the
Administrator. 57 FR 32283; see also 40 CFR 70.7(e)(2)(iv) (for a minor
modification, the permitting authority may not issue a final permit
until after EPA's 45-day review period or until EPA has notified the
permitting authority that it will not object, whichever is earlier) and
70.8(e) (a part 70 permit, including a modification, may not be issued
until after EPA has had an opportunity to review the proposed permit as
required under this section). As the EPA may receive a petition on
different types of proposed title V permits, it is important for the
agency to be able to identify the

particular action of concern to the petitioner.
    Under CAA section 505(b)(2), a petition pertains to a particular
permit. Thus, the EPA must be able to discern from the petition what
permit action the petition is based on in order to review and respond
to it. The EPA has interpreted the potential scope of the petition as
related to the scope of the permit action that is the basis of the
petition. In the 1992 preamble to the final part 70 rule, the EPA
explained that public objections to an initial permit, permit revision,
or permit renewal must be germane to the applicable requirements
implicated by the permitting action in question. For example,
objections raised on a portion of an existing permit that would not in
any way be affected by a proposed permit revision would not be germane.
57 FR 32250, 32290/3 (July 21, 1992). Consistent with CAA section
505(b)(2), the EPA has considered the scope of the permit proceeding in
reviewing petitions and denied petitions that concern issues that are
outside the scope of the permit proceeding. See, e.g., In the Matter of
Wisconsin Public Service Corporation's JP Pulliam Power Plant (Order in
response to Petition Number V-2012-01) (January 7, 2013) at 8; In the
Matter of Consolidated Environmental Management, Inc.--Nucor Steel
Louisiana, Order on Petition Numbers VI-2010-05, VI-2011-06 and VI-
2012-07 (January 30, 2014) (Nucor III Order) at 12.
    One such denial can be found in the 2007 Weston Order, in which the
EPA received a petition that claimed that the proposed modification
permit was deficient because it did not incorporate limits from PSD and
preconstruction permit applications for a particular unit at the Weston
facility. See, In the Matter of Wisconsin Public Service Corporation--
Weston Generating Station (Order in response to Petition) (December 19,
2007). The EPA denied the claim because the unit in question had not
been affected by or related to the significant modification on which
the title V permitting action was based. The Order stated:

    EPA interprets its title V regulations at 40 CFR part 70 to
require different opportunities for citizens to petition on initial
permit issuance, permit modifications, and renewals. The regulations
state that a permit, permit modification, or renewal may be issued
if specified conditions are met, 40 CFR 70.7(a)(1), including a
requirement that `[t]he permitting authority shall provide a
statement that sets forth the legal and factual basis for the draft
permit conditions.' 40 CFR 70(a)(1)(ii) and 70.7(a)(5) (emphasis
added). Further, 40 CFR 70.7(h), in requiring the permitting
authority to provide adequate procedures for public notice and
comment for permit proceedings that qualify as significant
modifications, provides that the notice shall identify `the activity
or activities involved in the permit action; the emissions change
involved in any permit modification; . . . and all other materials
available to the permitting authority that are relevant to the
permit decision . . .' 40 CFR 70.7(h)(2) (emphasis added). We
interpret these provisions to limit petitions on significant
modifications to issues directly related to those modifications. Id.
at 5.

    The Weston Order further noted that this limitation on petitions
for title V significant modifications did not affect the public's
ability to participate in the permit issuance or enforcement processes.
When a title V permit is renewed, all aspects of the title V permit are
subject to public comment and petition as part of the process to issue
a renewal permit. Generally speaking, members of the public can also
bring an enforcement action in situations of alleged noncompliance with
any permit terms. Furthermore, if the public is concerned that the
permit fails to incorporate all applicable requirements, a petition may
be submitted to the Administrator to reopen the permit for cause under
CAA section 505(e). Id. at 7.
2. Demonstration Requirement
    In addition to the threshold requirements, the statute identifies
another general guideline for the EPA's consideration. Specifically, to
compel an objection by the EPA, CAA section 505(b)(2) requires the
petitioner to demonstrate that a permit is not in compliance with
requirements of the Act, including the requirements of the applicable
implementation plan. The EPA has interpreted the demonstration burden
under CAA section 505(b)(2) in numerous title V petition orders and
court opinions have also interpreted it. What follows is a brief
restatement of interpretations previously articulated in some of those
orders and opinions.
    In the 2013 Nucor II Order the EPA stated:

    The petitioner demonstration burden is a critical component of
CAA section 505(b)(2). As courts have recognized, CAA section
505(b)(2) contains a ``discretionary component'' that requires the
exercise of the EPA's judgment to determine whether a petition
demonstrates noncompliance with the Act, as well as a
nondiscretionary duty to object where such a demonstration is made.
Sierra Club v. Johnson, 541 F.3d at 1265-66 (``it is undeniable [CAA
section 505(b)(2)] also contains a discretionary component: it
requires the Administrator to make a judgment of whether a petition
demonstrates a permit does not comply with clean air
requirements''); NYPIRG, 321 F.3d at 333. Courts have also made
clear that the Administrator is only obligated to grant a petition
to object under CAA section 505(b)(2) if the Administrator
determines that the petitioners have demonstrated that the permit is
not in compliance with requirements of the Act. See, e.g., Citizens
Against Ruining the Environment, 535 F.3d at 667 (section 505(b)(2)
``clearly obligates the Administrator to (1) determine whether the
petition demonstrates noncompliance and (2) object if such a
demonstration is made'') (emphasis added); NYPIRG, 321 F.3d at 334
(``Section 505(b)[2] of the CAA provides a step-by-step procedure by
which objections to draft permits may be raised and directs the EPA
to grant or deny them, depending on whether non-compliance has been
demonstrated.'') (emphasis added); Sierra Club v. Johnson, 541 F.3d
at 1265 (``Congress's use of the word `shall' . . . plainly mandates
an objection whenever a petitioner demonstrates noncompliance'')
(emphasis added). Courts reviewing the EPA's interpretation of the
ambiguous term ``demonstrates'' and its determination as to whether
the demonstration has been made have applied a deferential standard
of review. See, e.g., Sierra Club v. Johnson, 541 F.3d at 1265-66;
Citizens Against Ruining the Environment, 535 F.3d at 678;
MacClarence [v. EPA], 596 F.3d [1123] at 1130-31 [9th Cir. 2010)].

See, In the Matter of Consolidated Environmental Management, Inc.--
Nucor Steel Louisiana, Order on Petition Numbers VI-2011-06 and VI-
2012-07 (June 19, 2013) (Nucor II Order) at 4-5.
    The EPA highlighted in the Nucor II Order several reasons why the
petitioner's demonstration is important in the context of a title V
petition, including first, the relatively short time frames title V of
the CAA provides for the EPA to review title V permits and petitions.
As previously explained, under CAA section 505(b)(1), the Administrator
has only 45 days after receiving a copy of the proposed permit to
review that permit and object if she determines that the permit is not
in compliance with the CAA. If the Administrator does not object, then
any petition for an objection must be filed within 60 days after the
expiration of the 45-day review period, and the agency is required to
grant or deny that petition within 60 days. See CAA section 505(b)(2).
Given these short time frames, the Nucor II Order explained that EPA
does not believe it is reasonable to conclude that Congress would have
intended for the EPA to engage in extensive fact-finding or
investigation to analyze contested petition claims, and in support of
this interpretation it cited Citizens Against Ruining the Environment,
535 F.3d at 678, which noted that because the limited time frame
Congress gave the EPA for permit review ``may not allow

the EPA to fully investigate and analyze contested allegations, it is
reasonable in this context for the EPA to refrain from extensive fact-
finding.'' Nucor II Order at 5. Therefore, it is imperative that the
petitioner make the demonstration.
    After discussing the relatively short time frames for the EPA to
review as the first point, the Nucor II Order continued:

    Second, the Act is structured so that the EPA's evaluation of a
petition under CAA section 505(b)(2) follows and is distinct from
its review of a proposed permit under section 505(b)(1), which
requires the Administrator to object on his own accord if he
determines the permit is not in compliance with the Act. By
contrast, under section 505(b)(2), the Administrator is compelled to
object only if the necessary demonstration has been
made.[10]
---------------------------------------------------------------------------

    \10\ Footnote 3 of the Nucor II Order explained: ``Further, CAA
section 505(b)(2) provides that `the Administrator may not delegate
the requirements of this paragraph.' This reflects the significance
Congress attached to the decision on whether or not to object in
response to a petition, and means the process requires additional
time.''
---------------------------------------------------------------------------

    Third, the EPA is also sensitive to the fact that its response
to title V petitions often comes late in the title V permitting
process and often after the title V permit has been issued. See CAA
section 505(b)(3) (acknowledging that the EPA's response to a
petition may occur after the permit has been issued). The EPA's
evaluation of the petitioners' demonstration can have consequences,
as a determination by the EPA that the petition demonstrates the
permit is not in compliance with the Act requires the Administrator
and the state permitting authority to take certain actions.
MacClarence, 596 F.3d at 1131. The EPA also acknowledges Congress'
direction that permitting authorities must provide ``streamlined''
procedures for issuing title V permits, indicating that the title V
permitting process should proceed efficiently and expeditiously. CAA
section 502(b)(6); 40 CFR part 70.4(d)(3)(ix). These circumstances
make it all the more important that the EPA carefully evaluate the
petition's demonstration and not issue an objection under section
505(b)(2) unless the petition demonstrates that one is required.
    Fourth, and consistent with its importance in CAA section
505(b)(2), the petitioner demonstration requirement helps to ensure
the equity, procedural certainty, efficiency, and viability of the
title V petition process for petitioners, state and local permitting
authorities, the EPA and source owner/operators. This petitioner
demonstration requirement helps to ensure that each and every
petitioner is treated equitably in the petition process because the
same standard for demonstration applies to each petitioner. Where
petitioners meet their burden, the EPA will grant the petition.
Where they do not, the EPA will not grant the petition. In this way,
the EPA gives equal consideration to the petitioner's arguments, as
appropriate.
    In addition, the petitioner burden requirement also helps to
ensure that the title V petition process is consistent with the
division of responsibilities and co-regulator relationship between
the EPA and state or local permitting authorities established in the
CAA. When carrying out our title V review responsibilities under the
CAA, it is our practice, consistent with that relationship, to defer
to permitting decisions of state and local agencies with approved
title V programs where such decisions are not inconsistent with the
requirements under the CAA. The EPA does not seek to substitute its
judgment for the state or local agency. As we discuss above in this
section, sections 505(b)(1) and (2) of the Act, require the EPA to
object to the issuance of a title V permit if it determines that the
title V permit contains provisions that are not in compliance with
applicable requirements of the Act, including the requirements of
the applicable SIP. State and local agencies must ensure that the
title V permit includes all applicable requirements under the CAA
for that source, and provide an adequate rationale for the permit
requirements in the public record, including the response to
comment. When the EPA grants a particular title V petition under CAA
section 505(b)(2), the EPA directs the state or local agency
regarding actions necessary to ensure that the title V permit meets
the applicable requirements with regard to the particular issue(s)
that was raised, including appropriate and necessary changes to the
permit.
    The petitioner burden requirement assures that petitioners have
clearly and sufficiently articulated the basis for an objection
before a title V petition is granted. Thus, state and local agencies
have certainty regarding the standard against which petitions on
their title V permits and permit records will be assessed. The
petitioner burden requirement also helps to ensure that the EPA does
not have to spend significant time and resources responding to
ungrounded claims regarding the title V permit or permit record. For
example, petitioners might include claims in petitions unrelated to
applicable requirements for the title V permit at issue or that do
not provide sufficient information for the EPA to analyze the claim.
Without the petitioner demonstration burden, the EPA could be
required to investigate and respond to claims that ultimately prove
to be ungrounded or frivolous. This would increase the complexity
and uncertainty of the title V permit process, and would be
burdensome and unproductive for the EPA, as well as for state and
local agencies. The petitioner burden standard also helps to ensure
certainty of the permitting process for source owner/operators,
because it provides a consistent standard against which petitions on
their title V permits will be assessed.

Nucor II Order at 5-7.
    In light of the EPA's interpretation of the demonstration
requirement and its importance to the implementation of the statutory
structure that Congress created for addressing objections to title V
permits, the EPA has discussed and applied its interpretation of the
demonstration burden in numerous title V orders. Examples of the EPA's
application of this standard can be found in: In the Matter of Scherer
Steam-Electric Generating Plant Juliette, Georgia, et al., Order on
Petition Nos. IV-2012-1, IV-2012-2, IV-2012-3, IV-2012-4, and IV-2012-5
(Apr. 14, 2014) at 12-13; In the Matter of Hu Honua Bioenergy Facility,
Order on Petition No. IX-2001-1 (July 2, 2014) (Hu Honua Order) at 25-
27; In the Matter of EME Homer City Generation LP, et al., Order on
Petition No. III-2012-06, III-2012-07, and III-2013-02 (July 30, 2014)
at 24-25; In the Matter of Public Service of New Hampshire Schiller
Station, Order on Petition No. VI-2014-04 (July 28, 2015) at 11-12.
    The interpretation quoted from the Nucor II Order is based on the
discussion of the demonstration burden in opinions from federal courts
of appeal. These courts have recognized that the term ``demonstrates''
in CAA section 505(b)(2) is ambiguous and have accordingly deferred to
the EPA's interpretation. See Wildearth Guardians v. EPA, 728 F.3d
1075, 1081-1082 (10th Cir. 2013); MacClarence v. EPA, 596 F.3d 1123,
1130-1131 (9th Cir. 2010); Sierra Club v. Johnson, 541 F.3d 1257, 1265-
1267 (11th Cir. 2008); Citizens Against Ruining the Env't v. EPA, 535
F.3d 670, 677-678 (7th Cir. 2008). In so deferring, these courts have
discussed the seminal Supreme Court decision, Chevron USA, Inc. v.
Natural Res. Def. Council Inc., 467 U.S. 837, 842-843 (1984), which
provides guiding principles for judicial review of agency
interpretations and determinations under statutes that the agency
administers.\11\ Chevron establishes a well-known two-step test: First,
if the Congress has ``directly spoken to the precise question at
issue'' both the court and the agency must ``give effect to the
unambiguously expressed intent of Congress.'' Chevron, 467 U.S. at 842-
843. Second, if the statute is ambiguous, courts will generally defer
to the agency's interpretation and uphold it so long as it ``is based
on a permissible construction of the statute.'' Id. at 843.
---------------------------------------------------------------------------

    \11\ The principle of deference named after this decision--
Chevron deference--is discussed in more detail in Section IV.A of
this notice.
---------------------------------------------------------------------------

    Several federal courts of appeal have agreed with the EPA's
position that the term ``demonstrates'' in CAA section 505(b)(2) is
ambiguous. MacClarence, 596 F.3d at 1130 (collecting cases). As one
opinion pointed out, ``[n]either the Clean Air Act nor its regulations
define the term `demonstrates' or give context to how the Administrator
should make this judgment.'' Sierra Club v. Johnson, 541 F.3d at 1266;
see also Citizens Against Ruining the Env't, 535 F.3d at

677-678. After considering the plain meaning of the term
``demonstrates'' as shown by various dictionary definitions, courts
have agreed that the plain meaning ``does not resolve important
questions that are part and parcel of the Administrator's duty to
evaluate the sufficiency of a petition, for example, the type of
evidence a petitioner may present and the burden of proof guiding the
Administrator's evaluation of when a sufficient demonstration has
occurred.'' Sierra Club v. Johnson, 541 F.3d at 1266; MacClarence, 596
F.3d at 1131 (same). Similarly, another court observed that the Act
``does not set forth any factors the EPA must take into account in
determining whether a petitioner has demonstrated noncompliance under
[CAA 505(b)(2)].'' Wildearth Guardians, 728 F.3d at 1082.
    This recognition of the ambiguity in CAA section 505(b)(2) leads to
the conclusion that ``the statute's silence on these important issues
means Congress has delegated to the EPA some discretion in determining
whether, in its expert opinion, a petitioner has presented sufficient
evidence to prove a permit violates clean air requirements.'' Sierra
Club v. Johnson, 541 F.3d at 1266. Accordingly, as one opinion put it,
``the EPA has discretion under the statute to determine what a petition
must show in order to make an adequate `demonstration.' '' Citizens
Against Ruining the Env't, 535 F.3d at 678. Similarly, another court
explained, ``because we conclude [section 505(b)(2)] is ambiguous when
it comes to defining the type of demonstration required to trigger the
Administrator's duty to object, we are willing to defer to a reasonable
interpretation by the agency as to when a petitioner has sufficiently
demonstrated noncompliance with PSD requirements.'' Sierra Club v.
Johnson, 541 F.3d at 1267. In so deferring to the EPA's interpretation
of the demonstration standard under CAA section 505(b)(2) some courts
have noted that they need not resolve the question of the exact degree
of deference to be accorded to the EPA because its ``interpretation is
persuasive even under [the] less deferential standard of review'' under
Skidmore v. Swift, 323 U.S. 134 (1944) and ``would thus prevail under
either standard.'' Wildearth Guardians, 728 F.3d at 1082; MacClarence,
596 F.3d at 1131 (same).
    In the context of reviewing particular applications of the
demonstration burden in title V petition orders, courts have also
deferred to the agency's interpretation as to whether or not a petition
had adequately demonstrated that an objection was warranted. For
example, in MacClarence, the petition was denied in part because it
``failed to provide adequate information to support [a claim]'' and
made ``only generalized statements . . . and did not provide adequate
references, legal analysis, or evidence in support of these general
assertions.'' 596 F.3d at 1131 (internal marks omitted). The court
found the EPA's construction of the burden under CAA section 505(b)(2)
as encompassing an expectation that a petition provide ``references,
legal analysis, or evidence'' a reasonable interpretation, which
comported with both the plain meaning of the term ``demonstrates'' and
with CAA section 505(b)(2). Id. In addition, in MacClarence, the
petitioner argued that the EPA should not have denied his petition for
failing to address the permitting authority's reasoning in the final
permitting decision and documents, which differed from the draft
documents and explained why the changes had been made. The court upheld
the EPA's decision, determining that it was reasonable for the EPA to
expect the petitioner to address the permitting authority's final
decision. Id. at 1132-33. As another example of the deference that
courts have accorded the EPA's application of the demonstration
standard, in the Wildearth Guardians case cited above, the court found
reasonable the EPA's determination that the petitioner could not rely
solely on the fact that a Notice of Violation (NOV) had been previously
issued to demonstrate noncompliance. Wildearth Guardians, 728 F.3d at
1082. The court noted that the EPA had explained that an NOV may be a
relevant factor in `` `determining whether the overall information
presented by Petitioner--in light of all the factors that may be
relevant--demonstrates the applicability of a requirement for the
purposes of title V' '' but explained that other factors may also be
relevant. Id. The EPA further explained that if the petitioner had not
addressed other relevant factors, it could find that petitioner ``
`failed to present sufficient information to demonstrate that the
requirement is applicable.' '' Id. Finding this interpretation of the
demonstration requirement persuasive, the court deferred to it. Id.
3. Raising PSD Issues in a Petition
    As noted earlier, many petitions raise numerous and highly complex
issues around PSD permitting, a separate permitting program under the
CAA. Because of the frequency with which title V petitions raise PSD
claims, statements in prior petition orders regarding such claims is
worth a separate mention here. In the Meraux Refinery Order, In the
Matter of Meraux Refinery, Order on Petition Number VI-2012-04 (May 29,
2015), at 3-4, the EPA stated:

    Where a petitioner's request that the Administrator object to
the issuance of a title V permit is based in whole, or in part, on a
permitting authority's alleged failure to comply with the
requirements of its approved PSD program (as with other allegations
of noncompliance with the Act), the burden is on the petitioner to
demonstrate to the Administrator that the permitting decision was
not in compliance with the requirements of the Act, including the
requirements of the SIP. CAA section 505(b)(2). . . . Such
requirements, as the EPA has explained in describing its authority
to oversee the implementation of the PSD program in states with
approved programs, include the permitting authority: (1) following
the required procedures in the SIP; (2) making PSD determinations on
reasonable grounds properly supported on the record; and (3)
describing the determinations in enforceable terms. See, e.g., In
the Matter of Wisconsin Power and Light, Columbia Generating
Station, Order on Petition No. V-2008-01 (October 8, 2009) at 8. The
permitting authority for a State's SIP-approved PSD program has
substantial discretion in issuing PSD permits. Given this
discretion, in reviewing a PSD permitting decision, the EPA will not
substitute its own judgment for that of the State. Rather,
consistent with the decision in Alaska Dep't of Envt'l Conservation
v. EPA, 540 U.S. 461 (2004), in reviewing a petition to object to a
title V permit raising concerns regarding a state's PSD permitting
decision, the EPA generally will look to see whether the petitioner
has shown that the state did not comply with its SIP-approved
regulations governing PSD permitting or whether the state's exercise
of discretion under such regulations was unreasonable or arbitrary.
See, e.g., In re Louisville Gas and Electric Company, Order on
Petition No. IV-2008-3 (Aug. 12, 2009); In re East Kentucky Power
Cooperative, Inc. Hugh L. Spurlock Generating Station, Order on
Petition No. IV-2006-4 (Aug. 30, 2007); In re Pacific Coast Building
Products, Inc. (Order on Petition) (Dec. 10, 1999); In re Roosevelt
Regional Landfill Regional Disposal Company (Order on Petition) (May
4, 1999).

As is indicated by the internal citations to a number of other title V
orders in the Meraux Refinery Order, the agency has made similar
statements in several previous orders over the years.
4. Raising Emissions Monitoring Issues in a Petition
    Many petitions also raise issues surrounding emissions monitoring,
recordkeeping and reporting in title V permits. Title V of the CAA
requires permits to contain adequate emissions monitoring,
recordkeeping, and reporting to assure sources' compliance with
applicable requirements. 57 FR 32250, 32251 (July 1, 1992). Because of

the frequency with which monitoring claims are raised, statements in
prior petition orders regarding such claims are also worth a separate
mention here. As an example, In the Matter of the Premcor Refining
Group, Inc., Order on Petition Number VI-2007-02 (May 28, 2009), at 7,
the EPA stated:

    As a general matter, permitting authorities must take three
steps to satisfy the monitoring requirements in the EPA's part 70
regulations. First, a permitting authority must ensure that
monitoring requirements contained in applicable requirements are
properly incorporated into the title V permit. 40 CFR
70.6(a)(3)(i)(A). Second, if the applicable requirements contain no
periodic monitoring, permitting authorities must add monitoring
``sufficient to yield reliable data from the relevant time period
that are representative of the source's compliance with the
permit.'' 40 CFR 70.6(a)(3)(i)(B). Third, if the applicable
requirement has associated periodic monitoring but the monitoring is
not sufficient to assure compliance with permit terms and
conditions, a permitting authority must supplement monitoring to
assure compliance. See 40 CFR 70.6(c)(1).

5. Addressing Permitting Authority's Rationale
    The EPA has previously noted that as part of the CAA section
505(b)(2) demonstration requirement, the petitioner is expected to
address the permitting authority's final decision, and the permitting
authority's final reasoning (including the RTC), where these documents
were available during the timeframe for filing the petition. Where a
permitting authority has articulated its rationale for the permit terms
and conditions concerning an applicable requirement in its record (RTC
and statement of basis) and the petitioner did not adequately address
that rationale in its petition, the EPA has often denied the petition,
at least in part, on that basis. See e.g., In the Matter of Noranda
Alumina, LLC, Order on Petition No. VI-2011-04 (December 14, 2012) at
20-21 (denying title V petition issue where petitioners did not respond
to state's explanation in response to comments or explain why the state
erred or the permit was deficient); In the Matter of Kentucky Syngas,
LLC, Order on Petition No. IV-2010-9 (June 22, 2012) at 41 (denying
title V petition issue where petitioners did not acknowledge or reply
to state's response to comments or provide a particularized rationale
for why the state erred or the permit was deficient). Caselaw supports
this interpretation. See MacClarence, 596 F.3d at 1132-33 (the
Administrator ``reasonably expected'' the petitioner to challenge the
state permitting authority's explanation and reasoning for final
permit).

IV. Proposed Revisions to Title V Regulations

    This notice proposes several changes to part 70. Many of the
proposed revisions fall within three key areas. First, regulatory
language is proposed that encourages the use of the agency's electronic
submittal system for title V petitions. Alternative methods for
submittal are also identified in this notice. Petitioners who
experience technical difficulty when attempting to submit a petition
through the electronic submittal system may send it to the designated
email address, while those without access to the Internet or unable to
access email for other reasons may send a paper copy to the specific
physical address identified in this proposal.
    Second, this rule proposes mandatory petition content requirements
and standard formatting for title V petitions. The EPA has identified
key pieces of information that are critical when assessing claims and
potential flaws in a title V permit or permit process, and these pieces
are now proposed as required content for petitions and would be a new
provision, 40 CFR 70.12. Under the proposed revisions, in order to
demonstrate a flaw in the permit, permit record, or permit process that
warrants an objection under CAA section 505(b)(2), the petition would
present the required content in the same manner and order as contained
in the new section of the title V regulations, 40 CFR 70.12.
    A related change is proposed that would add new regulatory language
to 40 CFR 70.8, which would require a petitioner to send a copy of the
petition to both the permitting authority and the permit applicant. The
current title V regulations do not have provisions effectuating this
requirement of section 505(b)(2) of the Act. Therefore, this proposal
would insert a requirement into the regulation identical to the one in
the Act in order to ensure consistency with this provision of the
statute.
    Third, the agency proposes to require that permitting authorities
respond in writing to significant comments received during the public
comment period on a draft title V permit. Further, the EPA proposes
regulatory language stating that this response to significant comments,
often referred to as the RTC, must be sent with the proposed permit and
statement of basis for the 45-day EPA review period of the proposed
permit.\12\ Under the proposed revisions, the EPA 45-day review period
would not commence until the proposed permit and all necessary
supporting information, including the written RTC, are received.
Finally, the EPA proposes to require that within 30 days of sending the
proposed permit to the EPA, that permitting authorities must provide
notification that the proposed permit and the response to significant
public comments are available to the public. Such notice must explain
how these materials may be accessed.
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    \12\ The statement of basis is a statement that ``sets forth the
legal and factual basis . . . (including references to the
applicable statutory or regulatory provisions)'' for terms and/or
conditions in a permit. 40 CFR 70.7(a)(5). Often a separate
document, the statement of basis is intended to provide information
to facilitate the EPA's review of permit terms and conditions and
also to provide information that supports public participation in
the permitting process.
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    These proposed revisions to part 70 provide increased transparency
and clarity to the title V petition preparation, submittal, review, and
response processes. Improved interactions with stakeholders that
participate in the title V process and more accurate tracking of
petitions may also result from the establishment of the preferred
petition submittal method. If finalized, the proposed rule revisions
would help facilitate a more effective process for the development of
title V petitions and a more efficient process for the review and
response to title V petitions. Overall, the EPA is intending that these
rule revisions along with other shared information will help to improve
title V permits issued by permitting authorities, promote access to and
provide better understanding of the title V petition process for
potential petitioners, and reduce delays in decisions and support the
agency's efforts to meet its obligations in responding to title V
petitions.
    For each of the three key areas, the agency describes the proposed
regulatory changes, rationale for proposing the changes, and request
for comment in the sections that follow. Before discussing each of the
three key areas of this proposal, however, this notice provides some
additional legal background related to these proposals.
A. Additional Legal Background for the Proposed Revisions to the Part
70 Rules
    To provide context for the statutory and regulatory interpretations
discussed below, the EPA first discusses some additional legal
background, including principles generally applied by courts in
reviewing agency interpretations.
    The Supreme Court decision, Chevron USA, Inc. v. Natural Res. Def.
Council

Inc., 467 U.S. 837, 842-843 (1984), establishes principles that guide
judicial review of agency interpretations of statutes that the agency
administers. Under Chevron courts apply a well-known two-step test:
First, if the Congress has ``directly spoken to the precise question at
issue'' both the court and the agency must ``give effect to the
unambiguously expressed intent of Congress.'' Chevron, 467 U.S. at 842-
843. Second, if the statute is ambiguous, courts will generally defer
to the agency's interpretation and uphold it so long as it ``is based
on a permissible construction of the statute.'' Id. at 843. At the
second step of this inquiry, also referred to as ``Chevron Step 2,''
courts such as the D.C. Circuit have frequently explained that ``
`Chevron requires that we defer to the agency's reasonable
interpretation of the term.' '' Miss. Comm'n on Envtl. Quality v. EPA,
790 F.3d 138, 151 (D.C. Cir. 2015) (quoting Pennsylvania Dept. of
Envtl. Protection v. EPA, 429 F.3d 1125, 1130 (D.C. Cir. 2005)). In
other words, under Chevron the agency's interpretation `` `governs if
it is a reasonable interpretation of the statute--not necessarily the
only possible interpretation, nor even the interpretation deemed most
reasonable by the courts.' '' Entergy Corp. v. Riverkeeper, Inc., 556
U.S. 208, 218 (2009) (quoted in Airlines for Am. v. Transp. Sec.
Admin., 780 F.3d 409, 413 (D.C. Cir. 2015)).
    Similarly, courts accord deference to an administrative agency's
interpretations of its own regulations under principles enunciated in
Auer v. Robbins, 519 U.S. 452, 462-63 (1997). This type of deference is
frequently referred to as Auer deference. When an agency's
interpretation of a regulation receives Auer deference, the court
accepts the agency's interpretation ``unless the interpretation is
plainly erroneous or inconsistent with the regulations or there is any
other reason to suspect that the interpretation does not reflect the
agency's fair and considered judgment on the matter in question.''
Rural Cellular Ass'n & Universal Serv. v. FCC, 685 F.3d 1083, 1093-1094
(D.C. Cir. 2012) (internal marks and citations omitted).
    Finally, the EPA notes that administrative agencies have broad
discretion to adopt procedures to discharge their obligations under the
statutes they implement. In the words of the U.S. Supreme Court:
``[T]he formulation of procedures [is] basically to be left within the
discretion of the agencies to which Congress [has] confided the
responsibility for substantive judgments.'' Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 524
(1978). Later in the same case, the Court observed that ``[a]bsent
constitutional constraints or extremely compelling circumstances the
administrative agencies should be free to fashion their own rules of
procedure to pursue methods of inquiry capable of permitting them to
discharge their multitudinous duties.'' Id. at 543-544. Relatedly,
courts have emphasized the inherent authority that administrative
agencies have ``to control the disposition of their caseload'' and
manage their own dockets. See, e.g., GTE Service Corp. v. FCC, 782 F.2d
263, 273-274 (D.C. Cir. 1986).

B. Electronic Submittal System for Petitions

1. Proposed Revisions
a. Petition Submission to the EPA
    In this notice, the EPA is proposing to revise part 70 to add a new
provision that would require petitions to be submitted using one of
three identified methods. Among those three methods, the agency
encourages petitioners to submit title V petitions through the
electronic submittal system, the agency's preferred method. The EPA has
developed a title V petitions submittal system through the Central Data
Exchange (CDX) and information on how to access and use the system is
available at the title V petitions Web site: http://www.epa.gov/title-v-operating-permits/title-v-petitions. While the current submittal
system was designed using CDX, the EPA recognizes that adjustments to
the system or a different submittal system entirely may be needed in
the future. Therefore, the title V petitions Web site will provide
access to the designated electronic submittal system in use at any
given time, which will remain the primary and preferred method for
receiving title V petitions. The electronic submittal system allows for
a direct route to the appropriate agency staff. It also provides
immediate confirmation that the EPA has received the petition and any
attachments.
    If a petitioner experiences technical difficulties when trying to
submit a petition through the electronic submittal system identified on
the title V petitions Web site, the petition may also be submitted to
the agency through the following email address:
<EMAIL_ADDRESS>This address is being established as an
alternative method for use in instances when the electronic submittal
system is not available. For petitioners without access to the Internet
at the time of petition submittal, this notice also announces the
establishment of one specific physical address to which all paper
copies of petitions should be sent. Paper copies of all petitions
unable to be sent electronically may be sent by mail or by courier to
the following address: U.S. EPA, Office of Air Quality Planning and
Standards, Air Quality Policy Division, Operating Permits Group Leader,
109 T.W. Alexander Dr. (C504-05), Research Triangle Park, NC 27711.
Additional information on these alternative methods for submittal will
also be available at the title V petitions Web site.
    Although regulatory changes are being proposed to integrate these
methods of submission into the part 70 rules, all three of these
methods are currently available for petition submission, and
petitioners may elect to use any one of them now. Furthermore, although
the proposed changes to the regulatory provisions identify three
possible means to submit petitions, for any particular petition, once a
petition and any attachments have been successfully submitted using one
method, there is no need to submit a duplicate copy via another method.
The EPA requests that petitioners only submit a petition using one
method, which will expedite the administrative process and improve the
EPA's efficiency in reviewing petitions. Finally, if these regulatory
revisions are finalized, the agency would not be obligated to consider
petitions submitted through any means other than the three identified
in the rule.
b. Required Copy of the Petition to the Permitting Authority and
Applicant
    Section 505(b)(2) of the Act requires that the petitioner provide
copies of its petition to the permitting authority and the permit
applicant. This requirement does not currently appear in the part 70
rules. The EPA is proposing to revise the part 70 regulations in order
to fill this gap in the regulations. Specifically, in this notice, the
EPA proposes to add language to 40 CFR 70.8(d) that is identical to the
statutory language.
2. Why is the EPA proposing this change?
    In general, feedback from stakeholders, as well as the EPA's
experience in receiving petitions, indicate there is confusion at
present as to where a petition should be submitted. While section
505(b)(2) of the CAA and 40 CFR 70.8(d) provide that any person may
petition the Administrator to object within 60 days after the
expiration of the EPA's 45-day review period for the proposed permit,
both the statute and the regulations are currently silent as to how a
petition should be submitted to

the EPA. Because the regulations do not dictate a specific address,
title V petitions have been received in a number of different offices
within the agency. Most of the recent petitions have been sent to the
agency through email, in some cases with a duplicate paper copy sent to
a physical address somewhere within the EPA. For example, the agency
has received petitions that were sent directly to a staff person in a
Regional office, as well as petitions sent directly to the
Administrator, either by email or courier. One complication presented
by this current practice is that by sending petitions via email,
attachments supplied by petitioners as supporting materials may become
separated from the petition or lost entirely. In addition, and
potentially because of this fact, petition attachments are frequently
submitted by mail or courier, while the petition itself is submitted by
email. These various submission practices require additional
administrative processing within the EPA and can delay the initiation
of the substantive petition review process.
    One goal of this proposal is to clarify where and how title V
petitions should be submitted. Another goal of this proposal is to
announce the establishment of an electronic submittal system and
promote its use as the preferred method for the submittal of petitions
to the EPA. These proposed changes are expected to allow for more
accurate tracking of petitions and to increase the agency's efficiency
and effectiveness in responding to petitions by ensuring the timely
receipt of petitions and any attachments in a central location.
    The EPA has identified several benefits of establishing the
electronic submittal system as the preferred submittal method for
receiving title V petitions. For petitioners, the electronic submittal
system will provide immediate confirmation to the petitioner that the
petition was received by the agency. In contrast to the size
limitations that can be experienced when sending title V petitions
through email, petitioners will be able to see that all intended
supporting materials are attached to the petition and are submitted in
one entry. Thus, submitting a petition and attachments via the
electronic submittal system would avoid the need to send multiple
emails to transmit the entire petition package. Sending petitions
through the electronic submittal system also eliminates timeliness
issues from potential mishandling due to courier issues.
    For the agency, there is a time savings as petitions and any
attachments submitted through the electronic submittal system will be
immediately and directly available to the agency. This saves
administrative time otherwise spent processing the incoming petition
and any attachments, especially those submitted separately from the
petition. Thus, the EPA anticipates that using this system will
facilitate more efficient processing for incoming petitions. Further,
the electronic submittal system in its current form identifies the
number of attachments a petitioner intends to submit, which can alert
the EPA to any missing attachments.
    More information about the electronic submittal system, including
information about security concerns regarding providing personal
information, uploading and/or downloading files, personally
identifiable information (PII), and CBI is available at the CDX Web
site: https://cdx.epa.gov/. If this rule is finalized and there is
interest from commenters, the EPA will consider developing training
webinars on the use of the electronic submittal system.
    These proposed rule revisions to identify specific methods for
petition submittal fall within the EPA's inherent discretion to
formulate procedures to meet its obligations under CAA section
505(b)(2), as discussed in Section IV.A of this notice. In addition,
the Act is silent as to the methods that should be used for title V
petition submittal but imposes a 60-day deadline for granting or
denying such petitions. Accordingly, these proposed changes to improve
the efficiency of the EPA's initial processing of petitions and to
support the agency's efforts to satisfy that obligation are based on a
reasonable interpretation of CAA section 505(b)(2), including the
relatively short timeframe for the EPA to grant or deny a petition.
3. Request for Comment
    Comments are requested on all aspects of these proposed revisions.
The EPA is also specifically soliciting comment on our proposal to add
language to part 70 that identifies the electronic submittal of
petitions through the agency's identified electronic submittal system
as the preferred primary method for submitting a title V petition, as
well as identifying two alternative methods that could be used in case
of technical difficulties or by a petitioner without Internet access.
Commenters are encouraged to address in their comments whether
additional specification or direction is needed to ensure all
stakeholders are aware and have a better understanding of the preferred
electronic submittal process. The EPA is expressly requesting comment
on whether the proposed regulatory revisions are necessary, or whether
the same effect could be achieved through the direction provided in
this preamble and through the title V petitions Web site. Further, the
EPA is requesting comment on what, if any, outreach methods or training
materials (e.g., written instructions) would assist users with
submitting petitions through the CDX system.

C. Required Petition Content and Format

1. Proposed Revisions
    The following proposed regulatory changes are designed to assist
the public with preparing their petitions, as well as to assist the EPA
in its review of petitions. In this notice, the agency proposes to
establish in the part 70 regulations key mandatory content requirements
for title V petitions. These proposed requirements are based on
statutory requirements under CAA section 505(b)(2) and aspects of the
demonstration standard interpreted by the EPA in numerous title V
petition orders and restated in Section III.D of this notice. By
proposing to codify what has already been discussed in prior orders,
the EPA aims to help all stakeholders understand the criteria that the
EPA applies in reviewing a title V petition. The EPA also proposes to
establish requirements to encourage similar formats for all petitions
to further assist the agency in its review process.
a. Required Petition Content
    The EPA is proposing to revise part 70 to require standard content
that must be included in a title V petition, laying out the agency's
expectations with more specificity to assist petitioners in
understanding how to make their petitions complete and to enhance the
EPA's ability to review and respond to them promptly. Under this
proposal, a new section of the title V regulations, 40 CFR 70.12, would
add the following list of required elements:
     Identification of the proposed permit on which the
petition is based. The proposed permit is the version of the permit the
permitting authority forwards to the EPA for the agency's 45-day review
under CAA section 505(b)(1).\13\ A petition would be required to
provide the permit number, version number, and/or any other information
by which the permit can be

readily identified. In addition, the petition must specify whether the
relevant permit action is an initial issuance, renewal, or
modification/revision, including minor modifications/revisions.
---------------------------------------------------------------------------

    \13\ A proposed permit may be any of the following permit
actions: Initial permit, renewal permit, or permit modification/
revision.
---------------------------------------------------------------------------

     Sufficient information to show that the petition was
timely filed. A petition must be filed within 60 days after the
expiration of the Administrator's 45-day review period, as required by
section 505(b)(2) of the Act. Timeliness may be demonstrated by the
electronic receipt date generated upon submittal of the petition
through the agency's electronic submittal system, the date and time the
emailed petition was received, or the postmark date generated for a
paper copy mailed to the agency's designated physical address. It is
helpful if the petition provides key dates, such as the end of the
public comment period provided under 40 CFR 70.7(h), (or parallel
regulations in an EPA-approved state, local or tribal title V
permitting program), or the conclusion of the EPA 45-day review period
for the proposed permit.
     Identification of Petition Claims. Any issue raised in the
petition as grounds for an objection must be based on a claim that the
permit, permit record, or permit process is not in compliance with the
applicable requirements under the Act or requirements under part 70.
All pertinent information in support of each issue raised as a petition
claim must be included within the body of the petition. In determining
whether to object, the Administrator would not consider information
incorporated into the petition by reference (for example, comments
offered during the public comment period on the draft permit that are
incorporated by reference into the petition on the proposed permit, or,
as another example, claims raised in one title V petition that are
incorporated by reference into a different title V petition). However,
petitions may and should still provide citations to support each
petition claim (e.g., citations to caselaw, statutory and regulatory
provisions, or portions of the permit record). For each claim raised,
the petition would need to identify the following:
    [cir] The specific grounds for an objection, citing to a specific
permit term or condition where applicable.
    [cir] The applicable requirement under the CAA or requirement under
part 70 that is not met. Note that the term ``applicable requirement''
refers to Clean Air Act requirements only, and does not include other
requirements (e.g., Endangered Species Act, Clean Water Act) to which a
source may be subject. The term ``applicable requirement'' of the CAA
for title V purposes is defined in 40 CFR 70.2.
    [cir] An explanation of how the term or condition in the proposed
permit, or relevant portion of the permit record or permit process, is
not adequate to comply with the corresponding applicable requirement
under the CAA or requirement under part 70.
    [cir] If the petition claims that the permitting authority did not
provide for the public participation procedures required under 40 CFR
70.7(h), the petition must identify specifically the required public
participation procedure that was not provided.
    [cir] Identification of where the issue in the claim was raised
with reasonable specificity during the public comment period provided
for in 40 CFR 70.7(h), citing to any relevant page numbers in the
public comment as submitted and attaching the submitted public comment
to the petition. If the grounds for the objection were not raised
during the public comment period, the petitioner must demonstrate that
it was impracticable to raise such objections within the period or that
they arose after such a period, as required by section 505(b)(2) of the
Act and 40 CFR 70.8(d).
    [cir] Unless the exception under CAA section 505(b)(2) and 40 CFR
70.8(d) discussed in the immediately preceding bullet applies, the
petition must identify where the permitting authority responded to the
public comment, including the specific page number(s) in the document
where the response appears, and explain how the permitting authority's
response to the comment is inadequate to address the claimed
deficiency. If the written RTC does not address the public comment at
all or if there is no RTC, the petition should state that.
    In addition to including all specified content, it is important
that the information provided or any analysis completed by the
petitioner must also be accurate. However, including this content would
not necessarily result in the Administrator granting an objection on
any particular claim raised in a petition. For example, a petitioner
could include all this information but not demonstrate noncompliance,
or the petition might point to a specific permit term as not being
adequate to comply with an air emission limit, but may not have
identified the appropriate applicable requirement.
    One impediment to the EPA's review process is the use of
incorporation by reference of other documents, in whole or in part,
into petitions. As noted earlier in this section, under
``identification of petition issues'' in the new proposed mandatory
content requirements, the EPA would require all pertinent information
in support of each issue raised as a petition claim to be included in
the body of a petition. Incorporating information into a petition by
reference is inconsistent with the demonstration obligations in the
statute and would extend the petition review time as the agency spends
time searching for and then attempting to decipher the petitioner's
intended claim. In practice, the EPA often finds that where claims have
been incorporated by reference it is not clear that the specific
grounds for objection have been raised by the petitioner, which could
lead to the EPA denying for failure to meet the demonstration burden.
Relatedly, petitioners have sometimes used incorporation by reference
to include comments from a comment letter, but a comment letter alone
would typically not address a state's response to the comment. See,
e.g. Nucor III Order at 16 (noting that the ``mere incorporation by
reference . . . without any attempt to explain how these comments
relate to an argument in the petition and without confronting [the
State's] reasoning supporting the final permit is not sufficient to
satisfy the petitioner's demonstration burden''). In practice, the EPA
has found that the incorporation of comments by reference into a
petition can lead to confusion concerning the rationale for the
petitioner's arguments, as it is frequently unclear which part of the
comment is incorporated, how it relates to the particular argument in
the petition, and the precise intent of the incorporation. In addition,
the incorporation of comments by reference increases the agency's
review time, as the EPA must review more than one document to try to
determine the complete argument that a petitioner is making. Therefore,
the EPA is proposing to revise the regulations to state that the
Administrator will not consider information incorporated by reference
into a petition. However, a petition should still provide citations as
needed to support its legal and factual assertions.
    For further transparency and clarity, the EPA in this notice gives
examples of types of information that are not necessary to include when
preparing an effective petition. In doing so, the EPA hopes to ease the
effort associated with preparing a petition while promoting
succinctness. For example, while a petitioner needs to cite to the
legal authority supporting its specific claim, a petition does not need
to include pages of background or history on

aspects of the CAA. If a petitioner wishes to include additional
information for an alternate purpose unrelated to the EPA's review of
the specific petition claim, the EPA recommends appending this
information to the petition as a separate document and identifying the
purpose for which it is provided.
b. Required Petition Format
    Even with all necessary information provided, a petition may still
require substantial time to review because of how it is organized.
Therefore, the EPA is also proposing and taking comment on format
requirements. If information is presented in the same format, including
the same order, in all petitions, the EPA anticipates this standard
organization could reduce review time as the general location of
specific details would be the same in every petition received. These
proposed format requirements could also help petitioners better
understand what is, and what isn't, necessary in an effective title V
petition. To that end, the EPA proposes the use of a standard format
following the same order as previously identified in the list of
required petition content. Regulatory language to this effect is
included in the proposed new provision, 40 CFR 70.12. If finalized,
templates and/or guidance are planned for development for inclusion on
the title V petitions Web site.
    Further, the EPA is requesting input from the public on several
specific questions related to potentially establishing page limits for
title V petitions, as explained further in Section IV.C.4 of this
notice. While the EPA has received petitions ranging from approximately
3 to 82 pages (excluding attachments), the length for most petitions is
in the range of 20 to 30. The amount of detail required to successfully
raise a claim and meet the demonstration standard may depend on the
complexity of the issue. However, we expect that most claims could be
written effectively and succinctly, as demonstrated in the example
claim that follows.
2. Example Claim
    The following paragraphs contain an example of a concise and
effective presentation of a hypothetical single claim that would be
part of a larger petition--one that includes all pieces of required
content for a claim proposed in this rule. Because this is only a
sample claim, not a sample petition, it does not include some of the
required content that relates to the petition as a whole (such as
identifying information for the proposed permit). This example is
organized following the order presented in the proposed required
content changes identified previously, which is also the proposed
standard format. The bullets highlight each element of the proposed
content requirements.
    Although EPA is providing this sample claim to illustrate how the
material that would be required under the proposed regulatory revisions
could be presented succinctly and effectively, the information that is
needed to satisfy the demonstration burden for any given petition claim
will vary depending on the specifics of the claim, the applicable
requirements, and the underlying permit terms and record. The following
hypothetical claim is provided solely for purposes of illustration:
 Specific Grounds for Objection, Including Citation to Permit
Term
    Facility X's title V permit lacks monitoring sufficient to assure
compliance with the 4.5 pound per hour (lb/hr) nitrogen dioxide
(NOX) emission limitation of the approved State
Implementation Plan (SIP) at 30 State Administrative Code 66.54.2.
Specifically, Permit Condition I.D.26 requires that NOX
emissions from Facility X's combustion units (Units 1-6 and 11-14)
cannot exceed 4.5 pounds of NOX per hour. Permit Condition
II.D.105 requires once-per-year portable analyzer monitoring for Units
1-6 and 11-14. The permit contains no other testing, monitoring,
recordkeeping, or reporting requirements on these units, and contains
no other monitoring that could be used determine compliance with the
4.5 lb/hr NOX emission limit for the units.
 Applicable Requirement or Part 70 Requirement Not Met
    CAA section 504(c), and the implementing regulations in 40 CFR
70.6(c)(1) and 70.6(a)(3)(i)(B), requires all title V permits to
contain monitoring requirements to assure compliance with permit terms
and conditions. See also 30 State Administrative Code 66.55.5(b) and
(c) (same requirements in state's approved title V program). The permit
does not meet this requirement as explained in the following analysis.
 Inadequacy of the Permit Term
    The SIP-approved NOX limitation does not include any
periodic monitoring requirements, so 40 CFR 70.6(a)(3)(i)(B) requires
state agency to add periodic monitoring sufficient to yield reliable
data from the relevant time period that are representative of the
source's compliance with the permit. The monitoring added by the state
in Permit Condition II.D.105 fails to satisfy that requirement under
part 70 because monitoring only once annually for the engines units is
inadequate to assure compliance with an hourly emission limit.
 Public Participation Procedure Not Provided
    This petition does not claim that any public participation
procedures were not provided.
 Issue Raised in Public Comments
    Public Group Y (Petitioners) raised this issue on page 5 of the
July 31, 2015 comment letter it submitted on Facility X's July 1, 2015
draft title V permit. (See Public Group Y Comments at 5; Petition
Exhibit A at 5.)
 Analysis of State's Response
    In responding to Petitioners' comment stating that the frequency of
the permit's compliance monitoring for the compressor engines' 4.5 lb/
hour NOX limit was inadequate to assure compliance with the
permit term, state agency asserted that ``all that the title V
provisions in 30 State Administrative Code 66.55.5(b) and the parallel
requirements in 40 CFR 70.6(a)(3)(i)(B) require is periodic monitoring
sufficient to yield reliable data that are representative of the
source's compliance with the permit. Continuous monitoring is not
required.'' [RTC) at 8; Petition Exhibit B at 8]. The RTC states that
state agency's monitoring protocol for this unit type requires
``quarterly portable analyzer testing on units with catalytic
converters and annual testing on units without controls.'' Id. The RTC
then concludes that ``[b]ecause the portable analyzer test is a short
term test, it demonstrates compliance with the emission limits for that
time period. Due to the steady state operation of these units, state
agency believes that the portable analyzer testing along with proper
operation and maintenance of the units provides reasonable
demonstration of compliance with hourly NOX and CO emission
limits.'' Id. Although state agency asserts that it included
NOX monitoring in accordance with its monitoring protocols
for engines, state agency's RTC does not adequately explain how the
monitoring in Facility X's permit is sufficient to assure compliance
with the hourly NOX limit in Permit Condition I.D.26.
    As explained, state agency is relying on the portable analyzer test
results as a snapshot sampling of emissions to confirm annually whether
the units continue to meet their 4.5 lb/hour NOX limits.
Between annual portable analyzer tests, state agency relies on
assumptions of steady state operation

and ``proper operation and maintenance of the units'' to provide a
``reasonable'' demonstration of compliance with hourly NOX
emission limits. The RTC, however, does not identify any permit terms
or conditions that require proper operation and maintenance of the
units; nor does it provide an explanation (or appropriate citation to
the technical discussion) of why it believes its assumptions about
steady-state operations are reasonable for this equipment, or explain
how such assumptions, in conjunction with an annual emissions test,
constitute monitoring that demonstrates compliance with a short term
limit. Accordingly, the EPA must grants the petition on this claim.
3. Why is the EPA proposing this change?
    The CAA and part 70 regulations currently provide little
information on what a title V petition must or should contain. In fact,
the primary requirement in CAA section 505(b)(2) is that a petition
(with a few identified exceptions) must be based on objections that
were raised with reasonable specificity during the public comment
period for the permit, and that is the only specific requirement for
petition content in the relevant regulation. See CAA section 505(b)(2)
and 40 CFR 70.8(d). As a result, the content and format of petitions
have varied widely. In the agency's experience, many petitions fail to
include key pieces of information, making it more time-consuming and
resource-intensive for the EPA to assess the claim. Many petitions are
also convoluted, include extraneous or irrelevant information, or fail
to present the key information in a logical progression, making it
difficult for the agency to ascertain the specific issue being raised.
Contributing to the confusion, petitions frequently include large
sections of text that appear to have been developed for other reasons
and are not relevant to raising or evaluating a claim about a specific
flaw in the title V permit or permitting process.
    One of the EPA's desired outcomes for this proposed rule is to
provide direction to petitioners that will assist them with preparing
petitions. The agency anticipates receiving petitions that are both
more concise and clear and that contain all the key relevant material,
so that the EPA does not have to search for fundamental information or
attempt to decipher the petitioner's intent. These proposed revisions
are intended to facilitate a more effective petition development
process and a more efficient petition review and response process,
which are critical in this context because CAA section 505(b)(2)
requires the agency to grant or deny a petition within 60 days.
Similarly, this tight timeframe makes it imperative that a petitioner
make a clear and concise demonstration that can be efficiently
evaluated. By proposing to create obligations related to the content
and structure of a petition, the EPA anticipates receiving petitions
that more clearly articulate the petition claim and the basis for it,
focusing on key information, including the alleged deficiency in the
permit or permit process; the applicable requirements under the CAA or
requirements under part 70 that are in question; and where the issue
was raised during the public comment period (or a demonstration as to
why it was impracticable to do so or that the grounds for the objection
arose after the public comment period closed), how the state responded,
and why that response did not adequately address the issue.
    These proposed rules are consistent with statements and conclusions
that the EPA has made in previous orders responding to title V
petitions. The EPA has identified and emphasized the importance of such
key pieces of information in assessing petitioners' claims that a title
V permit or permit process does not assure compliance with applicable
requirements under the CAA or under part 70. For context, examples of
some of these orders were discussed in Section III.D of this notice.
The EPA is proposing to add petition content requirements that would
make certain information mandatory in petitions. These requirements
would help clarify for petitioners specific information that is useful
or necessary to evaluate a petition claim. The EPA anticipates that
these mandatory petition content requirements and standard formatting
would help petitioners to succinctly focus their claims and present
them effectively. The EPA anticipates that these proposed changes could
also decrease the instances in which the Administrator denies a
petition because the petitioner did not provide an adequate
demonstration. The agency believes these changes would help petitioners
to hone their claims to include the appropriate information and to
realize when a claim does not meet the mandatory requirements and
should not be included in the petition (e.g., the state adequately
addressed the issue in its RTC).
    The EPA expects the proposed revisions to require mandatory content
to improve the efficiency of the agency's review process for title V
petitions, as the key information would be presented in a clear and
succinct fashion. Similarly, the agency expects that the proposed
revisions to require similar organization for all petitions could
reduce agency review time as a result of having the specific
information in the same format in every petition received. Increasing
the efficiency of the review process, and more specifically reducing
the time it takes to review petitions, are consistent with Congress's
intent that the petition process proceed in a timely and expeditious
fashion, as indicated by the 60-day time frame for the Administrator to
grant or deny petitions provided in CAA section 505(b)(2). See Citizens
Against Ruining the Environment, 535 F.3d at 678 (noting that because
the limited time frame Congress gave the EPA for permit review ``may
not allow the EPA to fully investigate and analyze contested
allegations, it is reasonable in this context for the EPA to refrain
from extensive fact-finding'').
    Moreover, as discussed in more detail in Section III.D of this
notice, the EPA has explained in previous title V orders the importance
of the demonstration burden in determining whether or not to grant an
objection in response to a petition. See, e.g., Nucor II Order at 4-7.
The Act does not dictate all the information that must be included or
the format in which that information should be presented; nor does it
address what kind of showing must be made in order to demonstrate that
an objection is warranted. Courts have determined that the term
``demonstrates'' in CAA section 505(b)(2) is ambiguous and have
accordingly deferred to the EPA's reasonable interpretation of that
term. See, e.g., MacClarence, 596 F.3d at 1131 (finding the EPA's
expectation that a petition provide ``references, legal analysis, or
evidence'' a reasonable interpretation of the term ``demonstrates''
under CAA section 505(b)(2)). The proposed changes are aimed in part at
helping petitioners ensure that they are including information in their
petitions that is necessary to satisfy the demonstration burden, under
the EPA's interpretation.
    Furthermore, these proposed revisions to the part 70 rules related
to mandatory petition content and format fall within the EPA's inherent
discretion to formulate procedures to discharge its obligations under
CAA section 505(b)(2), as discussed in Section IV.A of this notice.
Similar procedural requirements have been established for other EPA
programs and processes, including the procedures for appeals filed with
the Environmental Appeals Board (EAB). See 78 FR 5281 (2013) (adopting
revisions to ``codify current

procedural practices, clarify existing review procedures, and simplify
the permit review process'').
4. Request for Comment
    Comments are requested on all aspects of these proposed revisions.
The EPA is proposing changes to part 70 to include mandatory petition
content and format to facilitate the efficient review of issues raised
in petitions. The EPA requests comment on all aspects of the required
petition content in the proposed 40 CFR 70.12, including the
requirement to provide all key information, arguments, or analysis in
the petition, rather than incorporating it by reference. The agency
also requests comments on the proposed requirement that the petition
format follow the same order as the proposed list of required content,
as well as the proposed revision to the regulatory language in 40 CFR
70.8(d) that requires that copies of the petition be provided to the
permitting authority and the applicant.
    The EPA is also requesting comment on whether or not page limits
should be established for title V petitions, as a means of promoting
concise petitions and to further facilitate efficient and expeditious
review of petitions by the EPA. Procedural requirements specifying the
maximum length of submissions have been instituted for processes such
as the EAB appeal process, where petitions and response briefs may not
exceed an identified word or page limit. See 40 CFR 12419(d)(3)
(limiting petitions and response briefs to either 14,000 words or
alternatively, a 30-page limit). Based on the EPA's assessment of
petitions received to date, most claims could be written effectively
and succinctly in one or two pages. However, we recognize that some
claims are more complex and could benefit from more space for an
effective demonstration. If page limits were established in the final
rules, petitioners would need to include the mandatory required content
(if finalized) while adhering to a specified page limit. We also
request comments on the following questions: if a page limit is
established, what would be an adequate number of pages, excluding
attachments, for a complete but concise petition? Would a page limit in
the range of 15-20 or 20-30 pages be reasonable excluding attachments?
What would be an adequate number of pages for a complete but concise
claim? When responding to these questions, the EPA requests that
commenters provide a rationale or basis for their responses.

D. Proposed Administrative Record Requirements

1. Proposed Revisions
    The EPA proposes to revise 40 CFR 70.7 to require a permitting
authority to respond in writing to significant comments received during
the public participation process for a draft permit. The agency is
proposing a regulatory revision to 40 CFR 70.8 that would require a
written response to all significant comments (RTC) and the statement of
basis document to be included as part of the proposed permit record
that is sent to the EPA for its review under CAA section 505(b)(1).\14\
Finally, the EPA proposes to revise 40 CFR 70.4(b), 70.7(h), and
70.8(a) to specifically identify the statement of basis document as a
necessary part of the permit record throughout the permitting process.
If no significant comments are received during the public comment
period, the permitting authority should prepare and submit to EPA for
its 45-day review a statement to that effect.
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    \14\ While most permitting authorities prepare a separate RTC
document, the response to significant comments may also be included
within a statement of basis. Likewise, the statement of basis may be
part of the title V permit, rather than a separate document. As long
as there is clear indication that the RTC and statement of basis are
provided along with the proposed permit, and where they can be found
in the submission, the EPA will commence its 45-day review period.
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a. Response to Comments
    Under the existing 40 CFR 70.7(h)(5), a permitting authority is
required to keep a record of the commenters and also of the issues
raised during the public participation process so that the
Administrator may fulfill the obligation under CAA section 505(b)(2) of
the Act to determine whether a title V petition may be granted. This