[Federal Register Volume 81, Number 201 (Tuesday, October 18, 2016)]
[Rules and Regulations]
[Pages 71613-71631]
[FR Doc No: 2016-24911]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 52, 55, 70, 71 and 124

[EPA-HQ-OAR-2015-0090; FRL-9954-10-OAR]
RIN 2060-AS59

Revisions to Public Notice Provisions in Clean Air Act Permitting
Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is revising the
public notice rule provisions for the New Source Review (NSR), title V
and Outer Continental Shelf (OCS) permit programs of the Clean Air Act
(CAA or Act) and corresponding onshore area (COA) determinations for
implementation of the OCS air quality regulations. This final rule
removes the mandatory requirement to provide public notice of a draft
air permit (as well as certain other program actions) through
publication in a newspaper. Instead, this final rule requires
electronic notice (e-notice) for EPA actions (and actions by permitting
authorities implementing the federal permitting rules) and allows for
e-notice as an option for actions by permitting authorities
implementing EPA-approved programs. When e-notice is provided, the
final rule requires, at a minimum, electronic access (e-access) to the
draft permit. However, this final rule does not preclude a permitting
authority from supplementing e-notice with newspaper notice and/or
additional means of notification to the public. The EPA anticipates
that e-notice, which is already being practiced by many permitting
authorities, will enable permitting authorities to communicate
permitting and other affected actions to the public more quickly and
efficiently and will provide cost savings over newspaper publication.
The EPA further anticipates that e-access will expand access to permit-
related documents.

DATES: The effective date of this final rule is November 17, 2016.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2015-0090. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on

the Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further general information on
this rulemaking, contact Mr. Peter Keller, U.S. EPA, Office or Air
Quality Planning and Standards, Air Quality Policy Division (C504-03),
Research Triangle Park, NC 27711, telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>or Mr. Ben Garwood, U.S. EPA, Office of Air
Quality Planning and Standards, Air Quality Policy Division (C504-03),
Research Triangle Park, NC 27711, telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>or Ms. Grecia Castro, U.S. EPA, Office of Air
Quality Planning and Standards, Air Quality Policy Division (C504-03),
Research Triangle Park, NC 27711, telephone<PHONE_NUMBER>, email at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this final rule include permitting
authorities responsible for the permitting of stationary and OCS
sources of air pollution or for determining COA designation for
implementation of the OCS air regulations. This includes the EPA
Regions and both EPA-delegated and EPA-approved air permitting programs
that are operated by state, local or tribal agencies. Entities also
potentially affected by this final rule include owners and operators of
stationary and OCS sources that are subject to air pollution permitting
under the CAA, as well as members of the general public who would have
an interest in knowing about permitting actions, public hearings and
other agency actions.

B. 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 document will be posted at: http://www3.epa.gov/nsr/actions.html
and http://www3.epa.gov/airquality/permits/actions.html.
    Upon its publication in the Federal Register, only the published
version may be considered the final official version of the rule and
will govern in the case of any discrepancies between the Federal
Register published version and any other version.

C. How is this document organized?

    The information presented in this document is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I obtain a copy of this document and other related
information?
    C. How is this document organized?
II. Background for Final Rulemaking
III. Summary of the Final Rule Requirements
    A. E-Notice Provisions
    B. E-Access Provision
    C. EPA and Delegated Permitting Authorities Subject to Mandatory
E-Notice and E-Access Requirements
    D. Permitting Authorities Not Subject to Mandatory E-Notice and
E-Access Requirements
    E. Mailing Lists
    F. Updated Information Regarding E-Notice and E-Access for Minor
NSR Permits
    G. Other Final Rule Provisions
IV. Implementation of E-Notice and E-Access
    A. Permitting Authorities Implementing Federal Preconstruction
Permit Program Rules
    B. Permitting Authorities Implementing EPA-Approved
Preconstruction Permit Program Rules
    C. Permitting Authorities Implementing EPA-Approved Operating
Permit Programs
    D. Permitting Authorities With EPA-Delegated Authority To
Administer the Federal Operating Permit Program
    E. Implementation in an Affected Indian Country
    F. Best Practices for E-Notice and E-Access
V. Responses to Significant Comments on the Proposed Rule
    A. General Comments on the EPA's Proposal To Remove the
Mandatory Newspaper Publication Requirement From Certain Regulations
and Instead Provide for E-Notice
    B. Comments on Requirement That Permitting Authorities Use a
Consistent Noticing Method
    C. Comments on Requirement To Make E-Notice Mandatory for
Federal Permit Actions
    D. Comments on Mandatory E-Access for Programs That Use E-Notice
    E. Comments on Final E-Notice Rule Implementation Timeframe/
Transition
    F. Comments on Temporary Use of Alternative Noticing Methods
    G. Comments on Documentation/Certification of E-Notices
    H. Additional Guidance on E-Notice and E-Access for Minor NSR
Permit Actions
VI. Environmental Justice Considerations
VII. 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 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. Congressional Review Act (CRA)
    L. Judicial Review
VIII. Statutory Authority

II. Background for Final Rulemaking

    The CAA requires stationary sources of air pollution to obtain
permits and authorizes the EPA to administer and oversee the permitting
of such sources. To implement the CAA, the EPA promulgated permitting
regulations for construction of sources pursuant to the NSR program
under title I of the CAA, for operation of major and certain other
sources of air pollutants under title V of the CAA and for sources
located on the OCS under CAA section 328. These regulations are
contained in 40 Code of Federal Regulations (CFR) parts 51, 52, 55, 70,
71 and 124, and cover the requirements for federal permit actions
(i.e., when the EPA or a delegated air agency is the permitting
authority \1\) and the minimum requirements for EPA approval of state
or tribal implementation plans (SIPs) \2\ and title V permitting
programs.\3\ These rules contain, among other things, requirements for
public notice and availability of supporting information to allow for
informed public participation in permit actions. These regulatory
requirements for public participation in

permitting and other actions are the subject of this final rule. The
final rule revisions apply to the following: (1) Major source \4\ air
permits and permits for certain minor sources subject to title V issued
by the EPA or by state, local, or tribal air agencies exercising
federal authority delegated by the EPA; (2) the requirements for
obtaining EPA-approval of state, local, or tribal air permitting
programs; and (3) OCS permits and COA determinations for implementation
of the OCS air quality regulations.
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    \1\ In lieu of ``permitting authority,'' in this preamble and
rule, we sometimes use the terms ``permitting agency'' and
``reviewing authority.'' These terms generally denote all forms of
air permitting authorities, including EPA Regions, EPA-delegated air
programs, and air agencies that are operated by state, local and
tribal governments and permitting authorities that implement their
own rules under an EPA-approved implementation plan. Furthermore,
the rules for the federal permit programs sometimes use the terms
``Administrator'' and ``Director'' in referring to the permitting
authority.
    \2\ SIPs, as used in this preamble, includes state and tribal
implementation plans (SIPs and TIPs).
    \3\ NSR includes the minor NSR, Prevention of Significant
Deterioration (PSD) and Nonattainment NSR (NNSR) permitting
programs. Requirements for the NSR programs are contained in 40 CFR
part 51 for approved state/tribal permitting programs and in 40 CFR
part 52 for federal PSD permit programs. 40 CFR part 52 references
part 124 for additional requirements. Requirements for approved
title V operating permit programs are contained in 40 CFR part 70
and for federal operating permit programs in 40 CFR part 71.
Requirements for the permitting of OCS sources and COA
determinations are contained in 40 CFR part 55.
    \4\ The term ``major source'' in the title V program rules
includes any ``major stationary source'' under the NSR program
rules. See, e.g., 40 CFR 52.21(b)(1)(i) and 40 CFR 71.2. In this
preamble, we use the terms ``major source'' and ``major stationary
source'' interchangeably.
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    While the CAA requires permitting authorities to offer the
opportunity for public participation in the processing of air permits
and other actions, it does not specify the best or preferred method for
providing notice to the public. See, e.g., CAA sections 165(a)(2) and
502(b)(6). In the late 1970s and early 1980s, when the EPA first
developed air permitting regulations to provide public notice for the
major NSR program, newspaper advertisement was the most commonly
accepted method for providing notice to the public of permit actions
under those programs and other agency actions. Over the years, however,
the availability of and access to the Internet and other forms of
electronic media have increased significantly in the United States. One
effect of this development is that circulation of newspapers and other
print media has declined, making printed newspaper notice less
effective in providing widespread public notice of permit actions in
many cases. Many permitting authorities electronically post permit
notices on their agency Web sites. For example, many state title V
programs regularly provide electronic postings to assure adequate
public notice. 40 CFR 70.7(h)(1). Such electronic notice mechanisms
provide an effective, convenient and cost-efficient way to communicate
permitting-related information to the majority of the public.
    Given these developments, the EPA has recognized that newspaper
notice is no longer the only, or in many cases the most effective,
method of communicating permitting actions to the public and has issued
rules allowing alternate methods of communication. For example, in
2011, the EPA issued the Tribal NSR rules that contained, among other
things, requirements for noticing of permits in Indian country that
provided for options other than newspaper and print media. 76 FR 38748
(July 1, 2011). The July 2011 Tribal NSR rule provides options such as
Web posting and email lists among the methods that the permitting
authority may use to provide adequate public notice of such permits.
Id. at 38764.
    Based on the foregoing and the EPA's objective to modernize,
enhance and improve consistency in the public noticing provisions
applicable to air permit actions, in December 2015 the EPA issued a
proposed rule. 80 FR 81234 (Dec. 29, 2015). In that proposed rule, the
EPA proposed to remove the mandatory requirement that draft permits for
sources subject to the major NSR, title V or OCS programs and certain
other actions be noticed in a newspaper of general circulation and
instead allow (or in some cases require) the use of Internet postings
to provide notice (i.e., e-notice). We also proposed these same
revisions for COA designations in the OCS program, permit rescissions
under the federal PSD program and for giving notice of EPA part 71
program effectiveness or delegation. In the case of permits issued by
the EPA or other permitting authorities implementing 40 CFR parts 52,
55 or 71, we proposed to require that the permitting authority provide
e-notice for all draft permits.\5\ For permits issued by other
permitting authorities--specifically, agencies that implement an
approved program meeting the requirements of 40 CFR parts 51 or 70--we
proposed that those permitting authorities would have the option to
adopt either e-notice or retain the newspaper noticing method. We
proposed that these permitting authorities must, however, select either
e-notice or newspaper notice as their consistent noticing method. In
addition, for all their draft permits, they must provide notice to the
public through the noticing method selected and must indicate the
consistent noticing method selected in their permitting rules. We also
proposed to require that, when a permitting authority adopts e-notice,
it also must provide e-access. In the context of this rule, e-access
means that the permitting authority must make the draft permit
available electronically (i.e., on the agency's public Web site or on a
public Web site identified by the permitting authority) for the
duration of the public comment period. This final rulemaking notice
does not repeat all of the discussion from the proposed rule, but
refers interested readers to the preamble of the proposed rule for
additional background.
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    \5\ We did not propose nor are we finalizing any changes to the
public notice requirements for OCS permits issued by delegated
permitting authorities pursuant to 40 CFR 55.11.
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III. Summary of the Final Rule Requirements

    This section provides a brief summary of the requirements of the
final rule. Further discussion of these requirements, including
implementation and summaries of our responses to significant comments
received on the proposed rule, are provided in subsequent sections.
    In this final action, the EPA is revising the public notice
provisions for the NSR, title V and OCS programs to remove the
mandatory requirement to provide public notice of a draft permit (and
certain other program actions) through publication in a newspaper of
general circulation. This final rule requires the use of e-notice to
provide public notice of draft permits for federal permits while
allowing e-notice as an option for permits issued under EPA-approved
programs. More specifically, to implement the shift from mandatory
newspaper noticing to e-notice, this final rule includes revisions to
the public notice provisions in 40 CFR 51.161 (state/tribal plan
requirements); 40 CFR 51.165 (state/local/tribal NNSR permits); 40 CFR
51.166 (state/local/tribal PSD permits); 40 CFR 52.21 (EPA/delegated
agency-issued PSD permits); 40 CFR part 70 (state/local/tribal title V
operating permits); 40 CFR part 71 (EPA/delegated agency-issued title V
operating permits); 40 CFR part 55 (EPA-issued OCS permits and COA
designations); and the portions of 40 CFR part 124 applicable to EPA-
issued PSD and OCS permits. This final action also requires that a
permitting authority provide e-access when it adopts the e-notice
method to provide public notice of a draft permit.

A. E-Notice Provisions

    In order to satisfy the provision for e-notice of a draft permit,
the permitting authority shall electronically post, for the duration of
the public comment period, the following information on a publicly
accessible Web site identified by the permitting authority: (1) Notice
of availability of the draft permit for public comment; (2) Information
on how to access the permit record (either electronically and/or
physically); (3) Information on how to request and/or attend a public
hearing on the draft permit; and (4) All other information currently
required to be included in the public notice under the existing
regulations. In addition, where already required by the current rules,
the permitting authority shall maintain a mailing list of persons who
request to be

notified of the permitting activity and shall distribute (e.g., by
email, postal service) the notice to those persons. While this final
rule expressly requires that the draft permit notice direct interested
parties to information on how to request and/or attend a public hearing
and how to access additional information relevant to the draft permit,
it does not alter any existing requirements regarding the content of
the public notice. Requirements regarding additional information in the
notice vary across the different sections of the permitting rules and
may further vary among different individual permitting authorities.
This final rule does not amend or affect regulatory requirements
pertaining to the provision of notice of final permit decisions. See
e.g., 40 CFR 124.15(a).\6\
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    \6\ The Environmental Appeals Board (EAB) has held that the
notification requirements of 40 CFR 124.15(a) (and similar
provisions) cannot be fulfilled by posting the final decision
regarding a draft permit on a Web site. See In Re Hillman Power Co.,
LLC, 10 E.A.D. 673, 680 n. 4 (EAB 2002). Where there is an
identified participant in the proceeding who has commented, the EPA
reads section 124.15(a) to require that the permitting authority
mail a copy of the final permit decision to the participant or
provide some other form of personal notification. This may include
email notification. For additional detail on the EAB's reasoning in
the Hillman Power case, see Order Directing Service of PSD Permit
Decision on Parties That Filed Written Comments on Draft PSD Permit,
Denying Motions to Dismiss, and Directing Briefing on the Merits
(May 24, 2002), available at: https://yosemite.epa.gov/oa/
EAB_Web_Docket.nsf/0CCE572C43D92F218525706C0067DACA/$File/
hillman.pdf. While the EAB expressed concern in this order regarding
the possibility that some parties may not see an Internet post
immediately, this was in the context of providing identified persons
with a right to appeal a permit decision. Further, the Board was
contrasting the merits of Internet posting and direct personal
notification, rather than comparing the merits of Internet and
newspaper notice. As discussed elsewhere in this rule, posting
notices of draft permits on the Internet offers some benefits that
are not provided from a one-time publication in a print newspaper.
In addition, this rule retains and enhances the option for
interested persons to be placed on a list to receive personal
notification of draft permits.
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B. E-Access Provision

    In order to satisfy the requirement for e-access when e-notice is
provided, the permitting authority shall electronically post, for the
duration of the public comment period, the draft permit on a publicly
accessible Web site identified by the permitting authority, which may
include the permitting authority's public Web site, an online state
permits register, or a publicly-available electronic document
management Web site that allows for downloading documents. It is
important to note that, while e-access in this final rule pertains to
the availability of and access to the draft permit during the public
comment period, nothing in this rule alters the requirement for a
permitting authority to maintain a record of the permit action and to
make it available to the public. Furthermore, nothing in this final
rule affects a permitting authority's record retention policies and
requirements. A permitting authority that is satisfying the rule
requirements for e-access by posting the draft permit on a Web site
must also provide the public with reasonable access to the other
materials that support the permit decision (e.g., the permit
application, statement of basis, fact sheet, preliminary determination,
final determination, and response to comments) as required by existing
regulations. This final rule clarifies that access to the other
materials comprising the permit record may be provided either
electronically or at a physical location (such as a public library), or
a combination of both methods, given that some documents (such as air
quality modeling data) may be too large to post online on a Web site
but may be made available as part of the permit record either as
hardcopy or on a data storage device. The electronic posting of draft
and final permits, including information supporting the permit
decisions (e.g., permit applications), is subject to the applicable
policies on CBI and requirements of the permitting authority.
Consequently, some permit-related documents may be redacted or
otherwise withheld from viewing on a Web site or public library if it
is determined that the document contains CBI.

C. EPA and Delegated Permitting Authorities Subject to Mandatory E-
Notice and E-Access Requirements

    For permits that are issued by the EPA or by a permitting authority
that implements the EPA's federal permitting rules (i.e., 40 CFR parts
52, 55, 71 or 124) under delegated federal authority, this final rule
removes the mandatory requirements to provide newspaper notice and
access to the draft permit information at a physical address, and
replaces those requirements with mandatory e-notice and mandatory e-
access, as those terms are defined in this rule, as the consistent
noticing method for draft permit actions \7\ under the federal rules
for NSR and title V, and for all EPA-issued OCS permits. While this
final rule requires e-notice as the primary form of public notice for
such draft permit actions under the federal regulations, permitting
authorities may, when appropriate, supplement the e-notice with an
additional form (or forms) of notice (e.g., newspaper publication,
fliers, or social media postings). Nothing in this final rule precludes
the use of supplemental notice mechanisms.
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    \7\ As used here and from this point forward in this final rule
preamble, the term ``permit'' or ``permit action'' includes any
major source or major modification preconstruction permit and title
V permit actions subject to the public notice provisions affected by
this final rule.
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D. Permitting Authorities Not Subject to Mandatory E-Notice and E-
Access Requirements

    For the noticing of draft permits issued by permitting authorities
with their own EPA-approved rules under 40 CFR part 51 or 70, this
final rule removes the mandatory newspaper notice requirement for these
programs and provides the option for the agency rules to require
either: (1) E-notice and e-access as these terms are used in the
context of this rule, or (2) newspaper notice with either electronic
access (e.g., Web site) and/or physical access (e.g., a public
library). A key aspect of this approach is that the permitting
authority is required to adopt one noticing method--known as the
``consistent noticing method''--to be used for all of its permit
notices. Thus, if a permitting authority selects e-notice as its
consistent noticing method, it must provide e-notice (along with e-
access) for all of its draft permit notices in order to ensure that the
public has a consistent and reliable resource to turn to for all draft
permit notices. There is a requirement in 40 CFR part 51 to make
available, in at least one location in each region in which the
proposed source would be constructed, a copy of certain elements of the
permit record. We are clarifying that this requirement may be met by
making such materials available at a physical location or on a public
Web site identified by the permitting authority. Consistent with the
requirements for notices issued by the EPA and delegated permitting
authorities implementing the federal regulations, as discussed
previously, nothing in this final rule precludes permitting authorities
operating under EPA-approved rules from using additional forms of
notice. Thus, if a permitting authority elects to use e-notice as its
consistent noticing method, it may provide additional means of notice
as appropriate, including newspaper publication or any other mechanism.
Similarly, a permitting authority providing e-access may elect to also
provide access to the elements of the administrative record for which
e-access was provided at a physical location. The EPA encourages all
permitting authorities to consider facility-specific and permit-
specific facts such as expected public interest

and environmental justice considerations in determining the appropriate
method(s) for public notice and access to the administrative record for
draft permits.

E. Mailing Lists

    Some of the regulatory sections affected by this final rule have a
mailing list requirement and some do not. This rule includes regulatory
revisions to amend the EPA's solicitation obligations associated with
required mailing lists, but otherwise keeps the mailing list
requirements in place. With respect to the EPA's mailing list
obligations for the federal title V program, we are removing the
specific language within 40 CFR 71.11(d)(3)(i)(E) and 71.27(d)(3)(i)(E)
that requires the EPA to solicit mailing list membership through area
lists and periodic publication in the public press.\8\ We are making
similar changes to 40 CFR 124.10(c), which contains public notice
method requirements applicable to PSD and OCS permits. The rules now
say that the permitting authority may use generally accepted methods
(e.g., hyperlink sign-up function or radio button on an agency Web site
or a sign-up sheet at a public hearing) that enable parties to
subscribe to a mailing list.
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    \8\ The proposed rule had a minor typographical error stating
that it was revising 40 CFR 71.27(d)(4)(i)(G). In the final rule,
the EPA is adding 40 CFR 71.27(d)(4)(i)(H) with the text that was
proposed in 40 CFR 71.27(d)(4)(i)(G).
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F. Updated Information Regarding E-Notice and E-Access for Minor NSR
Permits

    Through guidance to permitting authorities issued in 2012, the EPA
clarified its view on what constitutes public notice for minor NSR
permit programs and what is considered adequate to meet the requirement
of notice by prominent advertisement in 40 CFR 51.161(b)(3). See
``EPA's 2012 Memorandum.'' \9\ Specifically, the EPA's 2012 Memorandum
clarified that the regulatory requirement for notice by prominent
advertisement was media neutral and thus sufficiently broad to allow
for e-notice. In the proposed rule, the EPA stated that it intended to
clarify that the EPA's interpretation of 40 CFR 51.161(b)(3) also
applies to the requirement in 40 CFR 51.161(b)(1) to make available for
public inspection, in at least one location in the affected area, the
information submitted by the owner or operator and the state or local
agency's analysis of the proposed source's effect on air quality.
Specifically, we proposed to clarify that allowing e-access to this
information by way of a Web site identified by the permitting authority
satisfies the 40 CFR 51.161(b)(1) public inspection requirement. The
EPA received no adverse comments regarding this proposed clarification.
Therefore, in this final rule the EPA is revising 40 CFR 51.161(b)(1)
to add the following: ``This requirement may be met by making these
materials available at a physical location or on a public Web site
identified by the State or local agency.''
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    \9\ Memorandum from Janet McCabe, Principal Deputy Assistant
Administrator, Office of Air and Radiation, ``Minor New Source
Review Program Public Notice Requirements under 40 CFR
51.161(b)(3)'' (April 17, 2012). See http://www2.epa.gov/sites/production/files/2015-07/documents/pubnot.pdf. The EPA's rules
generally require less extensive public participation procedures for
the permitting of minor sources and minor modifications.
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    In addition, the EPA has determined that the limitation in Footnote
1 in the EPA's 2012 Memorandum, excluding synthetic minor permits, is
no longer appropriate.\10\ The EPA will attach a notification to the
electronic version of the EPA's 2012 Memorandum indicating that the
media neutral interpretation also applies to synthetic minor permits.
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    \10\ A synthetic minor permit is a permit that contains
restrictions to avoid applicability of major NSR requirements. Under
the NSR program, such restrictions must be legally and practically
enforceable. See, e.g., 67 FR 80186, 80191 (December 31, 2002).
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G. Other Final Rule Provisions

    As proposed, the EPA is extending the use of e-notice methods to
three non-permitting actions in this final rule. In each of the
following cases, the regulatory provisions have previously required
notice of the action by way of newspaper publication:
     The OCS air regulations in 40 CFR part 55 apply to more
than just OCS permitting actions. Specifically, when the EPA makes a
COA designation determination, it must do so by way of a process that
allows for public comment on the draft determination. Through this
final action, we are requiring e-notice of the COA designation
determination.
     The existing federal PSD regulations contain a provision
for permit rescission that only refers to newspaper notification.
Specifically, paragraph 40 CFR 52.21(w)(4) requires that, if an agency
rescinds a permit, it shall give adequate notice of the rescission, and
that newspaper publication shall be considered adequate notice. In this
final rule, the EPA is replacing the requirement for newspaper
publication with a requirement that the Administrator notify the public
of a permit rescission by e-notice.
     When the EPA takes action to administer and enforce an
operating permits program in accordance with 40 CFR 71.4(g), it will
publish a notice in the Federal Register and, to the extent
practicable, publish notice in a newspaper of general circulation
within the area subject to the part 71 program effectiveness or
delegation. In this final rule, the EPA is replacing the newspaper
publication provision with the provision for e-notice.
    As proposed, the EPA is not in this final rule revising the public
participation requirements in the plantwide applicability limitation
regulations, which reference the public participation procedures in 40
CFR 51.161; 40 CFR 51.165(f)(5); 40 CFR 51.166(w)(5); Appendix S to
part 51 section IV.K.5; and 40 CFR 52.21(aa)(5). Additionally, this
final rule does not change the requirements for NNSR, minor NSR, and
synthetic minor NSR permits in Indian country that are contained in 40
CFR part 49 and already provide means of public noticing other than
newspaper publication. See 40 CFR 49.157 (minor NSR and synthetic minor
NSR permits) and 40 CFR 49.171 (NNSR permits).
    The EPA is not finalizing certain proposed revisions to paragraphs
in 40 CFR parts 55, 51 and 71 that sought to clarify that the terms
``send,'' ``mail'' and ``in writing'' and variants of those terms may
include email. Specifically, the EPA proposed to revise 40 CFR
51.166(q)(2)(iv), 40 CFR 55.5(f)(2) and (f)(4), 40 CFR 71.11(d)(3)(i)
introductory text and 40 CFR 71.27(d)(3)(i) introductory text by adding
a parenthetical indicating that those terms may include email. Without
necessarily commenting on these specific provisions, one commenter
generally urged EPA to avoid language in the rules that might limit the
use of new communications tools and require subsequent revisions to
enable permitting authorities to use them. With this idea in mind, upon
further consideration, the EPA determined that the existing rule
language in the subject paragraphs can reasonably be interpreted to
include email and other forms of communication. The EPA also determined
that adding the proposed parentheticals could unintentionally limit
flexibility to apply additional communications tools or imply a
different meaning elsewhere in the regulations where those same terms
are used and EPA did not propose adding the parenthetical. Therefore,
we are not finalizing those proposed revisions.

IV. Implementation of E-Notice and E-Access

    This section addresses implementation of this final rule and also
recommends ``best practices'' for e-notice and e-access. As discussed
in our responses to comments in Section V of this document, the EPA has
expanded the list of best practices included in the proposed rule to
address e-notice and e-access documentation and certification and
measures to address periods of Web site unavailability (e.g., outages
and emergencies), including the use of temporary alternative noticing
methods. These best practices are not requirements under this final
rule. Instead, they comprise recommendations intended to foster
improved communication and outreach of permit notices beyond the
minimum requirements.

A. Permitting Authorities Implementing Federal Preconstruction Permit
Program Rules

    Air permitting programs that implement the amended federal public
notice provisions under 40 CFR parts 52, 55 and 124 are required to
implement e-notice and e-access by the effective date of this final
rule on November 17, 2016. This includes EPA Regions, air agencies that
are delegated federal authority by the EPA to issue permits on behalf
of the EPA (via a delegation agreement) \11\ and any air agencies that
have their own rules approved by the EPA in a SIP and the SIP
incorporates by reference the federal program rules amended in this
action and automatically updates when these EPA rules are amended.
However, in the case of SIP rules that incorporate by reference the
federal noticing provisions, the agency may instead select newspaper
notice as their consistent noticing method by revising their SIP rules
consistent with the part 51 provisions promulgated here.
---------------------------------------------------------------------------

    \11\ With the exception of permitting authorities that are
delegated authority to issue permits under 40 CFR part 55.
---------------------------------------------------------------------------

    As described in our responses to comments in Section V of this
document, the EPA did not receive any comments that identified specific
details about technical issues that affected permitting authorities are
facing that would likely impede their ability to implement e-notice and
e-access by the effective date of this rule. While we acknowledge that
certain air agencies may need time to change their respective statutes,
rules, programs or policies to fully implement e-notice (i.e., to
remove mandatory newspaper publication from their own program
requirements), we believe that these agencies are in a position to
comply with the requirements for e-notice and e-access on or before the
date this final rule becomes effective. Since many of the affected
programs already use e-notice and e-access as part of their public
notice practices, little or no change would be necessary for those
programs to comply with this final rule. Therefore, in order to avoid
delay in implementation, we are not extending the effective date of
this final rule for the EPA and other air agencies that implement the
federal program rules.

B. Permitting Authorities Implementing EPA-Approved Preconstruction
Permit Program Rules

    To the extent a permitting authority with an approved program,
meeting the requirements of 40 CFR part 51, is using a consistent
noticing method and wants to retain the same noticing method, there is
no need to revise the applicable program rules. A permitting authority
with an approved program that chooses e-notice and e-access as its
consistent noticing method may need to revise its applicable program
rules and seek the EPA's approval of the revision in order to begin to
implement e-notice. Similarly, a permitting authority that implements
rules that incorporate by reference the procedural requirements in the
EPA's federal program regulations (40 CFR part 52), but does not
provide that its rules automatically update upon the EPA amending its
rules, will need to amend its regulations and seek the EPA's approval
of those revisions in order to implement e-notice and e-access in lieu
of newspaper notice. However, permitting authorities with NNSR programs
approved under 40 CFR 51.165 have been subject to the public
participation requirements at 40 CFR 51.161 and thus may be able to
interpret their existing rules to currently allow for implementing e-
notice in lieu of newspaper notice.\12\
---------------------------------------------------------------------------

    \12\ Although this rule adds public participation requirements
to section 51.165 in new paragraph (i), this additional paragraph
does not require a revision to a state NNSR program that already
provides for a consistent noticing method by either newspaper or
internet posting. Since section 51.161 does not address public
hearings, this final rule does not include the language that was in
the proposed version of 40 CFR 51.165(i) about providing information
on requesting and/or attending a public hearing.
---------------------------------------------------------------------------

    Under this final rule, it is voluntary for these permitting
authorities to move to e-notice and e-access. Likewise, nothing in the
final 40 CFR part 51 rules prevents a permitting authority from
continuing or beginning to implement e-notice and e-access methods.
However, depending on the permitting authority's rules, there may be
ongoing obligations to continue with newspaper notices until the agency
revises its permitting rules.

C. Permitting Authorities Implementing EPA-Approved Operating Permit
Programs

    In accordance with 40 CFR 70.4(i), a program revision may be
necessary when the relevant federal regulations are modified or
supplemented. When 40 CFR part 70 is revised after the permitting
authority program is approved, the EPA determines the need for
conforming revisions. However, the approved program may initiate a
program revision on its own initiative if the program revision is
required to implement the revised 40 CFR part 70 rules. See, e.g., 40
CFR 70.4(a) and (i). The EPA is not soliciting program revisions for
any approved programs in response to this final rule. Under this final
rule, permitting authorities implementing part 70 have a choice as to
whether or not to adopt e-notice as their consistent method of public
notice of air permits. If a permitting authority chooses the e-notice
approach and a program revision is necessary (e.g., additional
authority is needed), then the permitting authority must initiate a
program revision by undergoing a state rule change and submitting a
program revision package to the EPA for review and approval as per 40
CFR 70.4(i)(2). Consistent with the duty to keep the EPA apprised of
such proposed changes, if the permitting authority plans to change its
implementation practice from newspaper to e-notice and e-access based
on its analysis that its approved rules allow for e-notice and e-access
without any changes, the permitting authority must forward the
appropriate language to the Regional office prior to changing its
practice. Upon review, the Regional office may request a formal
submittal for a program revision.
    In this final rule, the EPA supports the position that program
revisions for converting part 70 programs to e-notice will generally be
nonsubstantial given that the permitting authority needs only to revise
its permitting rules to clarify its implementation of e-notice and e-
access. It does not need to seek additional authority for giving notice
by ``other means.'' In many cases, the permitting authority's current
practice includes electronic posting of public notices and the draft
permit, showing that it has adequate resources for implementing the
revised 40 CFR part 70 notice requirements. Accordingly, we note that
EPA Regional offices would generally expect to process approvals of
these program revisions using

procedures for nonsubstantial program revisions.\13\
---------------------------------------------------------------------------

    \13\ See 40 CFR 70.4(i)(2)(iv).
---------------------------------------------------------------------------

    With regard to 40 CFR part 70, these final rule revisions remove
only the mandatory aspect of newspaper noticing, allowing for the use
of that method as a consistent method for general public notice, but
also allowing e-notice as an alternative consistent method. All other
obligations, such as the requirement to have or maintain a mailing list
and provide notice by other means, as appropriate, remain unchanged.
The EPA interprets the existing mailing list obligations to include
either electronic or hardcopy mailing list or both.

D. Permitting Authorities With EPA-Delegated Authority To Administer
the Federal Operating Permit Program

    With regard to the 40 CFR part 71 program revisions, a permitting
authority that has delegated federal authority to administer the 40 CFR
part 71 program will likely need to update its delegation agreement to
update its notice procedures consistent with the e-notice requirement
in the federal rules.

E. Implementation in an Affected Indian Country

    This final rule changes the requirements for PSD permits that the
EPA issues in Indian country, as well as PSD permits that are issued by
a tribe through a delegation agreement or by any tribe that has an
approved TIP that incorporates by reference the public noticing
requirements for PSD permits in the federal rules in 40 CFR part 124
(through incorporation of 40 CFR 52.21(q)). Since this final rule
revises the noticing requirements in 40 CFR part 71, which applies to
Indian country absent an approved 40 CFR part 70 program, the revisions
would affect the public notice procedures for the majority of title V
operating permits in tribal lands.\14\ A tribal agency with an approved
40 CFR part 70 program will have the option to implement e-notice under
the same terms that apply to other approved 40 CFR part 70 programs
(i.e., when a conforming revision clarifying the consistent method
becomes effective for the program).
---------------------------------------------------------------------------

    \14\ All states, certain local permitting agencies and currently
one tribe have approved part 70 programs. The EPA administers the 40
CFR part 71 federal program in most areas of Indian country (one
tribe has been delegated implementation authority) and on the OCS
(where there is no delegated state permitting authority).
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F. Best Practices for E-Notice and E-Access

    This section contains EPA-recommended best practices for e-notice
and e-access. These best practices are not required to satisfy the e-
notice and e-access provisions in this final rule, but may be helpful
in the course of providing communication to the public about permitting
actions. The recommended best practices for e-notice and e-access
include:
     Providing notice of the final permit issuance on the Web
site.\15\
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    \15\ Noticing a final permit decision on the Web site is not a
substitute for complying with the regulatory requirements for the
provision of notice on final permit decisions. See footnote 6,
supra, referencing the EAB's decision in In Re Hillman Power Co.,
LLC.
---------------------------------------------------------------------------

     Soliciting for the mailing list on the Web site (e.g., Web
site equipped with radio button, hyperlink of ``click here'' function
to subscribe).
     Providing options for email notification that enable
subscribers to tailor the types of notifications they receive (e.g., a
person may request notification of only draft permit notices for major
source actions rather than receiving notice of all permitting activity
by the permitting authority).
     Providing, where practicable, hyperlinks on the Web site
that refers users to e-notice postings and/or newspaper postings,
access to draft permit Web postings and postings of other permitting
actions.
     Continued posting of the draft permit on the Web site
beyond the date of the end of the public comment period (e.g., until
the issuance of the final permit or until the permit application has
been denied or withdrawn).
     Posting the final permit on the Web site for a specific
period of time after the issuance of the permit (e.g., through the
permit appeal period or petition period).\16\
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    \16\ Noticing a final permit decision on the Web site is not a
substitute for complying with the regulatory requirements for the
provision of notice on final permit decisions. See footnote 6,
supra, referencing the EAB's decision in In Re Hillman Power Co.,
LLC.
---------------------------------------------------------------------------

     Posting (or hyperlinking to) other key permit support
documents on the agency Web site or on a publicly-available online
document management site (e.g., Federal Docket Management System
(FDMS\17\)), such as the permit application, statement of basis, fact
sheet, preliminary determination, final determination, and response to
comments.\18\
---------------------------------------------------------------------------

    \17\ The FDMS at http://www.regulations.gov is a Web-based
docket system used for, among other things, federal permitting
actions that require public notice and comment. This searchable
docket system allows for public access and downloading of the draft
permit and permit-related documents. The Web site also allows the
public to register to receive email alerts to track activity on
selected dockets. Similar online data management systems exist in a
number of states and allow permitting agencies to provide electronic
access to permits and other records.
    \18\ While the EPA believes it is a best practice to
electronically post as many of the key permit decision related
documents and information as possible, we recognize that air quality
modeling runs and other permit data files may not be compatible with
e-access. These documents typically cannot be uploaded to an
electronic format due to the size and storage requirements in the
electronic posting. In some cases, permitting authorities may choose
to upload a description of these documents with directions on how to
access the files.
---------------------------------------------------------------------------

     Providing evidence or a certification of the posting of
the e-notice and draft permit to the Web site in the permit record
indicating the date(s) of the availability of the notice and draft
permit on the Web site pursuant to applicable permitting authority
regulations or policies. One example of such certification would be
providing a printout of the applicable Web site pages and a
``Memorandum to the File'' by the permit writer documenting the date
the e-notice was posted, the Web site address where the e-notice was
posted and the date through which the posting remained available.
     Providing for alternative notice methods or public comment
period extension in the event of prolonged Web site unavailability
(e.g., due to malfunctions, transitions to a different Web site
platform, or emergency situations that result in prolonged e-notice and
e-access system outages) during the public comment period.
    Since mid-2015, the EPA has been developing a National Public
Notices Web site for publishing public notices for all EPA actions
subject to such notice requirements. This project is expected to be
completed and implemented by the end of 2016, providing a single
location for all EPA public notices (https://www.epa.gov/publicnotices). Each individual public notice Web page will be listed
on the EPA National Public Notices Web site's dynamic list throughout
the public comment period, and the list will be searchable and
filterable. The public notice Web pages will be designed to contain all
related documents or a link to such documents and may include a sign-up
option for the public to receive email notifications. We welcome other
permitting authorities to explore the forthcoming EPA National Public
Notices Web site when it is deployed and to use it as a guide to
designing and implementing, or improving, their own e-notice and e-
access platforms.

    In addition, permitting authorities may wish to consider the
recommendations provided by the National Environmental Justice Advisory
Council (NEJAC) in a 2011 report \19\ for improving noticing methods
for reaching underserved and environmental justice (EJ) communities.
These recommendations emphasize direct communication in appropriate
languages and include many of the practices identified above, as well
as press releases, radio announcements and posting of signs.
---------------------------------------------------------------------------

    \19\ ``Enhancing Environmental Justice in EPA Permitting
Programs,'' National Environmental Justice Advisory Council (April,
2011), pages 20-21, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-in-permitting-report-2011.pdf.
---------------------------------------------------------------------------

V. Responses to Significant Comments on the Proposed Rule

    The EPA received 29 comments on the proposed rule. In this section,
we summarize the major comments and our responses. For details of all
the significant comments and our responses, please refer to the
Response to Comments document in the docket for this rulemaking.

A. General Comments on the EPA's Proposal To Remove the Mandatory
Newspaper Publication Requirement From Certain Regulations and Instead
Provide for E-Notice

1. Summary of Proposal
    The EPA proposed to revise the public notice rule provisions for
the NSR, title V and OCS permit programs of the CAA and the
corresponding COA determinations for implementation of the OCS air
quality regulations by removing the mandatory requirement to provide
public notice of a draft air permit, as well as certain other program
actions, through publication in a newspaper and instead provide for e-
notice of these actions.
2. Brief Summary of Comments
    The EPA received numerous comments supporting the transition from
newspaper publication to e-notice and the vast majority of commenters
supported the proposal in general. All state and local agency
commenters generally supported the proposal, stating that e-notice
would: (1) Significantly improve communication with the public on
permit actions in comparison to a one-day newspaper notice; (2) result
in broader and better informed public participation; (3) reduce costs
and conserve air agency resources; (4) improve public access by making
permit actions immediately available through convenient and reliable
electronic media outlets; (5) improve communication with EJ communities
and other target audiences; (6) allow for information to be made
available for an extended time period; and (7) provide flexibility for
permitting authorities and sources by avoiding time delays associated
with newspaper publication and allowing for faster correction of errors
and rescheduling of events. Several of the state and local air agency
commenters indicated that they currently provide e-notice and e-access
for their draft permits and had realized many of the benefits cited.
State agency commenters cited specific costs associated with newspaper
publication of permit notices, ranging from $13,500 to $24,000 per
year, and stated that they anticipated cost savings of similar
magnitude after implementing e-notice.
    Several commenters supported the EPA's conclusion that there have
been substantial changes in technology, the media and the way the
public accesses information. Commenters noted that electronic media,
such as the Internet, have become the predominant means of
communicating, generally making such media a more effective means of
public notification than newspaper publication. Commenters noted that
this conclusion applied not only to the public in general, but also for
EJ communities. One commenter noted that EJ communities today obtain
and share more information through the Internet than through newspaper
circulation. One state commenter noted that they have been e-noticing
draft PSD and title V permits in the same manner the EPA proposed for
more than 10 years, and that they found e-notice to be a highly
effective mechanism for communicating actions to the general public.
Another commenter noted that they believe e-notices have been an
effective and convenient way to communicate permitting-related
information to the public, enabling broader and faster dissemination of
information to the public as compared to newspaper notices. Another
commenter noted that their district had already been encouraged to
provide e-notice by EJ advocates, noting that such notices improve the
level of available information and customer service offered to the
public, including disadvantaged communities, by allowing the district
to immediately make available bilingual copies of permitting action
notices. Further, the commenter noted that public outreach initiatives
cannot be nearly as effective with just newspaper notification.
    Several commenters urged the EPA not to require permitting
authorities that implement the federal permitting regulations to use
solely e-notice, and rather to allow such agencies to retain the
ability to provide alternative forms of notice, such as newspaper, in
addition to the mandatory e-notice provisions. One commenter indicated
that it was not entirely clear in the proposed language in 40 CFR
124.10 that such supplemental noticing methods were not precluded.
    Three commenters, including a newspaper industry association
(newspaper group), opposed the proposal to remove the mandatory
newspaper publication requirements from the regulations and instead
allow for e-notice. The newspaper group, while supporting the EPA's
intention to provide e-notice of draft permits and certain other
actions under the CAA, objected to the removal of mandatory newspaper
publication requirements for public notices on several grounds. The
commenter did not believe that e-notice constitutes sufficient notice
and felt that the proposal would result in less public awareness of
permits issued under the CAA. The commenter opined that the newspaper
industry specialized in noticing and would generally provide a better
method for noticing due to a much broader readership and ability to
reach certain audiences. The commenter stated that relying solely on
the Internet to provide public notice would disadvantage significant
numbers of rural, elderly, low-income and/or less-educated Americans
without Internet access. The commenter also contended that the proposal
runs counter to over 200 years of tradition, suggesting that a public
notice should be published by an independent third party, provide
archiving ability, be accessible and be verifiable. The commenter
further thought that the government's Web sites will not be as user-
friendly as some newspapers that provide print and Internet
notification. Finally, the commenter thought that the cost savings from
eliminating newspaper notices is most likely illusory. Another
commenter, representing a neighborhood organization, believed that e-
notice would result in less notification and less citizen engagement in
the decision process and that e-notice has not been shown to meet or
exceed the standards established by newspaper publication.
3. EPA Response
    We agree with the majority of commenters that e-notice meets the
public notice requirements and that, compared to newspaper notice, e-
notice is at least as effective and, in most cases, more effective, to
provide notice to the public about draft air permits and other

subject actions. E-notice is more efficient and will result in cost
savings to permitting authorities. Therefore, the EPA is finalizing the
e-notice rule provisions substantially as proposed. We found the
comments from air agencies particularly compelling. These air agencies
(who serve as permitting authorities) found that e-notice and e-access
have been an effective and convenient way to communicate permitting-
related information to the public, enabling broader and faster
dissemination of information to the public as compared to newspaper
notices. In particular, air agencies found that e-notices improve the
level of available information and customer service offered to the
public, including EJ communities. In response to commenter concerns
that the proposed rule would preclude the use of supplemental noticing
methods for any affected permitting authorities, we would like to
clarify that this is not the case. The EPA indicated in the proposed
rule and reiterates in this final rule that all affected permitting
authorities, including those that implement the federal program
regulations (i.e., the EPA, delegated programs and programs that
incorporate by reference the federal regulations), will continue to
have the authority to use additional means of public notice as
appropriate, including newspaper publication or any other communication
means. Nothing in this final rule precludes such supplemental notice
measures when appropriate and the EPA encourages it. In response to the
request for more clarity that 40 CFR 124.10 provides discretion for
supplemental notice, we note that 40 CFR 124.10(c)(4) already provides
for the use of any other noticing method.
    With regard to the comments received opposing our proposal to
remove the mandatory newspaper notice requirement for permit actions,
we disagree that this shift will diminish the public notice process and
its effectiveness. To the contrary, as noted previously, the majority
of comments received support the shift to e-notice to meet the public
notice regulatory requirements. Many of those commenters were state and
local air agencies that cited specific experience in implementing e-
notice that resulted in significant benefits in the public notice
process, including reaching target communities such as EJ communities.
The newspaper group alleges that e-notices are insufficient and cite to
several studies that they claim support the effectiveness of newspaper
advertisement. The EPA does not dispute the fact that newspaper
advertisements, including public notices, may be effective in some
cases, and this final rule does not preclude the use of newspaper
public notices under any circumstances. However, recent studies
strongly support the EPA's position that newspaper circulation has
declined, and continues to decline, and that the Internet has become
the predominant medium by which the public obtains information. The Pew
Research Center estimates that daily circulation of printed newspapers
declined 30 percent, from 62.3 million in 1990 to 43.4 million in
2010.\20\ More recent data from the Pew Research Center show that this
trend has continued through 2015, with average weekday newspaper
circulation, print and digital combined, falling 7 percent in 2015, the
greatest decline since 2010.\21\ While digital circulation crept up 2
percent in 2015, it accounted for only 22 percent of total newspaper
circulation.\22\ Conversely, Internet use among the public in the
United States has expanded tremendously and continues to penetrate all
demographic groups. The Department of Commerce reports that as of July
2015, about 75 percent of all adults and children aged 3 years and
older use the Internet.\23\ Internet use through libraries provides the
most widespread availability of free regular Internet access to the
general public. The American Library Association's (ALA) ``Public
Library Funding & Technology Access Study (2010-2011)'' reports that
99.3 percent of public libraries offer public access to computers and
the Internet.\24\
---------------------------------------------------------------------------

    \20\ Pew Research Center, The State of the News Media 2011,
available at http://www.stateofthemedia.org/2011/newspapers-essay/data-page-6.
    \21\ Pew Research Center, The State of the News Media 2016, page
4, available at http://www.journalism.org/2016/06/15/state-of-the-news-media-2016/.
    \22\ Id.
    \23\ U.S. Department of Commerce, National Telecommunications &
Information Administration, Digital National Data Explorer,
available at https://www.ntia.doc.gov/other-publication/2016/digital-nation-data-explorer.
    \24\ See Executive Summary of the ALA study, page 7, available
at http://www.ala.org/research/sites/ala.org.research/files/content/initiatives/plftas/2010_2011/plftas11-execsummary.pdf.
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    During the last decade, the federal government and many state
governments have been gravitating toward Internet publishing of
notices, announcements and other information, further supporting the
adequacy of Internet publication of such notices. In the federal
sphere, this trend is exemplified by: (1) The E-Government Act of
2002,\25\ which generally requires and encourages federal agencies to
better manage and promote Internet and information technology use to
bring about improvements in government operations and customer service;
(2) Executive Order 13563 (January 18, 2011), Improving Regulation and
Regulatory Review, which directs the federal government to modify and
streamline outmoded and burdensome regulations and specifically states
that each agency shall afford the public a meaningful opportunity to
comment through the Internet on any proposed regulation; and (3)
Executive Order 13576 (June 13, 2011), Delivering an Efficient,
Effective, and Accountable Government, which encourages federal
agencies to cut waste, streamline structure and operations, and
reinforce performance and management reform. With these actions,
Congress and the President have demonstrated their interest in making
government more efficient and effective through information technology,
and several federal agencies (including the EPA) have promulgated rules
that provide for publishing public notices on a government Web site in
lieu of newspaper publication.\26\ As mentioned previously, the EPA
issued a tribal minor NSR rule in 2011 that provided for e-notice.\27\
Each of these rules, consistent with this rule, was justified based on
the effectiveness and efficiency of Internet publication and associated
cost savings.
---------------------------------------------------------------------------

    \25\ Public Law 107-347, 116 Stat. 2899. The E-Government Act of
2002 establishes in the Office of Management and Budget (OMB), an
Office of Electronic Government and imposes responsibilities on
various high-level government officials including heads of Federal
Government agencies. The Act defines ``electronic Government'' as
``the use by the Government of Web-based Internet applications and
other information technologies, combined with processes that
implement these technologies, to: (A) Enhance the access to and
delivery of Government information and services to the public, other
agencies, and other Government entities; or (B) bring about
improvements in Government operations that may include
effectiveness, efficiency, service quality, or transformation.'' 44
U.S.C. 3601(3). While the Act does not mandate Internet publication
of the EPA's or other agencies' public notices, it evidences the
inexorable movement to broader Internet use by the federal
government under congressional direction.
    \26\ See, e.g., Consolidation of Seizure and Forfeiture
Regulations, Department. of Justice, Drug Enforcement
Administration, 77 FR 56093 (September 12, 2012); Internet
Publication of Administrative Seizure and Forfeiture Notices,
Department of Homeland Security, U.S. Customs and Border Protection,
78 FR 6027 (January 29, 2013); National Oil and Hazardous Substances
Pollution Contingency Plan (NCP): Amending the NCP for Public
Notices for Specific Superfund Activities, Environmental Protection
Agency, 80 FR 17703 (April 2, 2015); and Medicaid Program; Methods
for Assuring Access to Covered Medicaid Programs, Department of
Health and Human Services, Centers for Medicare and Medicaid
Services, 80 FR 67576 (November 2, 2015).
    \27\ 76 FR 38748 (July 1, 2011).

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    The EPA believes that in those instances when Internet posting is
the sole notice provided, it will be fully adequate to meet the purpose
for which notice is intended--to provide, to as many of the public at
large as can reasonably be expected to be interested, access to
important information regarding draft permits. In addition, Internet
publishing provides the potential to reach unknown interested parties.
Residents in a local jurisdiction may not subscribe to a local paper or
happen to see a one-day posting in the legal notices section of the
newspaper. At any given time, residents may be out of town and/or
relying on the Internet for news. The fact that e-notices will remain
on the Internet for the duration of the public comment period vastly
increases the likelihood that interested parties will receive notice
about draft permits. In addition, interested parties would not have the
burden of traveling to a physical location to review a copy of the
draft permit since that document would also be posted on the Internet.
Given the widespread use of the Internet in our mobile society, the EPA
believes that e-notice's reach will improve the public notice process
and yield positive results. In addition, the EPA believes that e-access
to draft permits will expand access to permit-related documents.
    With regard to the comment that relying solely on the Internet to
provide public notice would disadvantage significant numbers of rural,
elderly, low-income and/or less-educated Americans without Internet
access, the EPA is sensitive to this concern but does not agree that
using the Internet to provide public notice of draft permits will
adversely affect these groups. As previously noted, Internet access is
widely available even for those who do not own a computer. According to
a 2010 University of Washington study, those living below the poverty
line had the highest use of library computers, with 44 percent having
reported using public library computers and Internet access during the
previous year.\28\ We do not dispute that some individuals may continue
to rely on newspapers rather than the Internet to obtain information
and that there may be greater concentrations of such persons in some
communities. However, even if newspapers remain an effective means for
reaching some individuals, this does not take away the added benefits
cited by other commenters of reaching additional individuals through
the Internet and providing notice continuously during the public
comment period. Furthermore, this rule does not preclude supplemental
means of public notice to reach populations that do not have access to
or use the Internet. Permitting authorities that are required to
provide e-notice and e-access may continue to employ newspaper notice
routinely as a parallel mechanism with e-notice or to supplement e-
notice on a permit-by-permit basis. The same is true for permitting
authorities that are not required to, but may select, e-notice as their
consistent noticing method.
---------------------------------------------------------------------------

    \28\ Samantha Becker, et al., Opportunity for All: How the
American Public Benefits From Internet Access at U.S. Libraries, at
pages 1-2, available at http://impact.ischool.washington.edu/documents/OPP4ALL_FinalReport.pdf.
---------------------------------------------------------------------------

    The newspaper group claims that government Internet posting of
public notices does not comport with a ``long tradition'' that a public
notice must include four elements: The notice must be published by an
independent third party, the publication must be capable of being
archived at a reasonable cost, the notice must be accessible, and the
notice must be verifiable. The newspaper group does not reference any
statutory authority or case law to support the proposition that a
public notice must include these four elements. The EPA notes that the
applicable requirements for notice are encompassed in the
constitutional due process standard governing public notice. The
Supreme Court has held that, in providing public notice of governmental
action, due process requires only that ``the Government's effort be
`reasonably calculated' to apprise a party of the pendency of the
action.'' Dusenbery v. United States, 534 U.S. 161, 170-71 (2002)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315
(1950)). Although Dusenbery involved direct notice of an administrative
forfeiture, the same due process standard applies to published notices
as well. See, e.g., United States v. Young, 421 Fed. Appx. 229, 230-31,
2011 U.S. App. LEXIS 6741, at *4 (3d Cir. Apr. 1, 2011). The CAA does
not specify the means by which public notice shall be provided under
the programs affected by this final rule.\29\ However, the CAA
permitting provisions do reflect a goal to provide adequate
opportunities for informed public participation.\30\ Publication of
draft permit notices via the Internet, with its widespread and broad
availability within and well beyond the limits of the local
jurisdiction, is clearly in compliance with this standard. The
Internet's ability to provide unlimited access to public notices
throughout the duration of the public comment period is, in this
Internet era, much less limiting than a single day's posting in a local
newspaper, which has been found to meet due process requirements.
---------------------------------------------------------------------------

    \29\ See, e.g., CAA sections 165(a)(2) and 502(b)(6).
    \30\ See, e.g., CAA section 160(5).
---------------------------------------------------------------------------

    The element referenced in the newspaper group's comment requiring
that notice be published by an independent third party presumes that
newspapers, being independent of the government, provide the public
with ``an extra layer of confidence'' in the notice compared to the
government publishing the notice itself. But this argument mistakes why
newspapers were used in the past and the role they serve in the notice
process. Newspapers were historically used to provide public notice
because, until the Internet, there was no comparable alternative method
that was ``reasonably calculated'' to apprise a party of the pendency
of a draft permit or other subject action. It had nothing to do with
their status as an ``independent and neutral third party.'' In fact,
for these purposes, there is nothing inherently beneficial about
newspapers being independent from the government given that they merely
act as a vehicle for publishing notices prepared and provided by the
permitting authority. The commenter has not demonstrated that
newspapers generally exercise independent editorial control over the
content of legal notices or classified advertisements or that newspaper
staff otherwise seek to check the veracity of what the newspaper
company is paid to print in these sections of its publication.
    In response to newspaper group's comments about the preservation of
e-notices for future reference and verification of the e-notice
posting, we note that permitting authorities have been required to keep
and retain permit records (including, for example, a copy of the
newspaper notice), and are required to continue to do so, in accordance
with applicable record retention requirements. Therefore, we have
included a best practice suggestion of evidence to include in the
permit record, when e-notice and e-access are provided, to certify the
date(s) of availability of the e-notice and draft permit postings on
the Web site. In addition, in response to the newspaper group's claim
that the EPA's Web site does not include hyperlinks to refer users to
public notices, we have included a best practice suggestion that, where
practicable, permitting authorities include hyperlinks on their Web
site to e-notice and/or newspaper postings, postings of draft permits
and other permitting actions. We also identified, in Section IV of this

document, a forthcoming National Public Notices Web site that the EPA
will utilize for all EPA public notices and stated that we welcome
other permitting authorities to review that platform for these and
other best practices. The EPA notes that the process of providing legal
verification of Internet notice is dramatically streamlined when it is
the government that can retrieve the required data from its own Web
site, as opposed to seeking such verification from newspapers. Finally,
the EPA notes that this regulatory change should correspondingly
decrease the burden on newspapers of having to provide such
information.
    The newspaper group claims that many newspapers have adopted a
marketing strategy to publish print issues on the newspaper's Internet
site. They believe the government's Internet sites will not be as user-
friendly as the newspaper's dual method of print and Internet
notification. They also claim that state press associations aggregate
printed notices and post them on statewide public-notice Web sites. The
EPA does not agree that posting draft permit notices on newspaper Web
sites or press association Web sites is superior to posting them on a
permitting authority's Web site. Online posting is not part of the
EPA's contracts for publication of draft permit notices, so newspapers
are under no obligation to make them freely available to the public
online. Newspapers are likewise under no obligation to contract with
state press associations for online posting of draft permit notices.
Moreover, some newspaper Web sites restrict access to the full online
version of the newspaper to print subscribers or those who pay for full
online access. A potential interested party searching for a draft
permit notice on such a Web site would either need a subscription to
the newspaper that is publishing the Internet notice or would have to
pay a daily access fee. The EPA believes it is unrealistic to assume
that such a process would provide more effective notice than a freely
available Web site that posts the desired notice as well as a copy of
the draft permit, 24 hours a day, for the duration of the public
comment period, in a searchable database.
    The EPA disagrees with the newspaper group's claim that the cost
savings to eliminate mandatory newspaper notices is illusory. The
commenter makes a valid point that there are also costs involved in
maintaining a Web site and posting information on the Internet.
However, the commenter did not quantify the costs or show that they are
greater than the costs of newspaper advertisements. Many state
regulatory agencies have established Web sites for the purpose of
serving broader communication objectives. So an appropriate cost
comparison for purposes of this rule is the cost of adding e-notices
for specific actions to a Web site infrastructure that an agency
already maintains or might create for other reasons. State regulatory
agencies with Web sites have budgets to cover the costs of running a
Web site for various reasons (not just permitting). To the extent that
there could be some additional cost to add permit notices to a Web
site, those marginal costs would be offset by the savings realized by
eliminating newspaper notices. As noted previously in the summary of
comments in this section, air agency commenters cited specific costs
associated with newspaper notices and anticipated cost-savings after
implementing e-notice. In addition, most permitting authorities
commented positively about the cost and other efficiencies that e-
notice provides. The EPA believes it has demonstrated earlier how
providing public notice through the Internet can--and indeed already
does--reach more people, more easily, and more directly, than newspaper
notice. Data from permitting authorities with real-world experience
implementing pubic notice requirements under the current regulations
(in many cases also including e-notice) supports the EPA's conclusion
that e-notice will be at least as effective, and in most cases more
effective, and cheaper overall than notice by newspaper.\31\
---------------------------------------------------------------------------

    \31\ A survey of EPA Regional offices indicated an average
newspaper advertising cost per permit (not including indirect costs)
of approximately $1,034. See Memorandum: ``U.S. EPA Regional Office
NSR, title V and OCS Newspaper Public Notice Cost Estimates: FY
2013, 2014 and 2015'' contained in this rulemaking docket. To the
extent any additional costs are incurred as a result of implementing
e-notice and e-access, such costs would be de minimis in comparison.
---------------------------------------------------------------------------

B. Comments on Requirement That Permitting Authorities Use a Consistent
Noticing Method

1. Summary of Proposal
    In lieu of newspaper publication, we proposed to require e-notice
for the noticing of air permits issued by the EPA and other permitting
authorities that implement the federal air permitting rules. For
permits issued by permitting authorities that implement their own rules
approved by the EPA, the proposed rule provided the option for
permitting authorities to use either e-notice or traditional newspaper
notice. However, those permitting authorities must adopt a single,
consistent noticing method for all of their affected permit actions in
their air rules. Thus, we proposed that where a permit agency opts to
post notices of draft permits on a Web site in lieu of newspaper
publication, it must post all notices to that Web site in order to
ensure that the public has a consistent and reliable location for all
permit notices.
2. Brief Summary of Comments
    The majority of commenters supported the EPA's proposal to require
a consistent noticing method. Several commenters indicated that it was
critical for permitting authorities to use a consistent noticing method
to avoid inconsistency in implementation and confusion on the part of
the public in understanding how to access permit information. Several
commenters also noted that it is important for permitting authorities
to be allowed to use supplementary noticing methods when appropriate.
Although two of these commenters indicated that they understood that
the rule language, as proposed, would not preclude the use of
additional, supplemental means of public notice, others seemed to be
confused on this point and therefore objected to the proposed
consistent noticing method requirement on the same grounds.
    Some commenters did not support the proposed requirement to use a
consistent noticing method and instead favored alternative approaches
or increased flexibility. One of these commenters indicated that, in
some cases, traditional newspaper publication may be appropriate or
necessary, and that some permitting authorities may have technical or
budgetary constraints affecting their ability to provide e-notice and
e-access while some may also have a statutory requirement for newspaper
notice. That commenter urged the EPA to provide flexibility for a
permitting authority to choose the type of notice that is appropriate
for the location and circumstances of a project. Another commenter
stated that forcing a state to make a formal commitment to a single
form of public notice, whether electronic or print, defeats the purpose
of public notice and also questioned how a state would ``adopt'' a
``consistent noticing method.'' Two commenters supported media neutral,
flexible approaches based on a ``method reasonably likely to provide
routine and ready access to the public'' as opposed to only one
``consistent noticing method.'' Finally, one commenter favoring a
flexible approach indicated that a consistent noticing method does not
work in states with diverse

populations that benefit from different noticing methods, and that
restrictions may inhibit effectively communicating important
information to diverse communities. Further, the commenter indicated
that a consistent notice approach does not allow the flexibility to
transition from newspaper to e-notice.
3. EPA Response
    The EPA is finalizing the requirement for authorities to use a
consistent noticing method as proposed. We agree with commenters that
believe that the random use of alternative notice methods for different
permit actions could confuse the public in their efforts to access air
permit public notices. In response to the negative comments received
that seem to have interpreted the requirement for using a consistent
noticing method for public notice of draft permit actions as precluding
the use of additional noticing mechanisms, we would like to clarify
that, consistent with the proposed rule, nothing in this final rule
prohibits or precludes a permitting authority from using additional,
supplemental forms of notice, including newspaper publication. Indeed,
several state and local permitting agency commenters indicated that
they already practice multiple forms of public notice on such permit
actions, including both e-notice and newspaper publication and in some
cases additional parallel forms of notice. Such permitting authorities
that implement EPA-approved permitting rules would be required to adopt
a consistent noticing method (i.e., e-notice or newspaper publication),
but could continue to use any and all additional forms of notice,
either consistently or on a permit-by-permit basis, as appropriate.
Additionally, we would like to clarify that for permitting authorities
that implement EPA-approved permitting rules, adopting rule changes and
submitting a plan or program revision incorporating the final e-notice
rule provisions is optional. Such air agencies may choose to continue
to operate under their existing EPA-approved rules and regulations that
require newspaper notification in all cases. This would qualify as a
``consistent noticing method'' under the revised regulations.
    Those commenters who argued for flexibility to choose the noticing
method on a permit-by-permit basis have not shown how the ``consistent
noticing method'' requirement frustrates the goals they seek to achieve
through this flexibility. As discussed previously, the rule does not
preclude using multiple methods of public notice, as long as the
consistent method is still one of the methods used. These commenters
have not shown any detrimental effect that would result to the
commenters or the public from requiring permitting authorities to use
one consistent method of notice for all draft permits. The benefits
derived from the flexibility sought by these commenters does not
eliminate the benefits that result from a consistent noticing method--
ensuring that interested parties can rely on one form of notice in all
cases and will not miss notices because of continuous changes in
noticing methods.
    The EPA does not intend for the rule to preclude a permitting
authority from subsequently changing its ``consistent noticing method''
on a programmatic basis. For example, if a state permitting authority
follows a particular noticing method and then decides that a different
form of notice would be more effective going forward, the state may
revise its regulations to change its consistent method. Regarding the
concern about how a state would ``adopt'' a consistent method, this
rule makes clear that such method should be specified in EPA-approved
permitting regulations for the appropriate jurisdiction.

C. Comments on Requirement To Make E-Notice Mandatory for Federal
Permit Actions

1. Summary of Proposal
    The EPA proposed that permitting authorities that implement the
federal permitting rules, including the EPA and other permitting
authorities that have been delegated the authority to implement the
federal permitting rules, would be required to adopt e-notice as the
consistent noticing method. We proposed this approach because we
believe that e-notice represents the best current practice for noticing
major source air permit actions. Accordingly, while the proposed rule
made e-notice optional for permitting authorities implementing EPA-
approved permitting rules, we did not extend the same flexibility to
the EPA and other air agencies that implement the federal permitting
rules.
2. Brief Summary of Comments
    We received one comment opposing the requirement that permitting
authorities implementing the federal permitting rules be required to
adopt e-notice as the consistent noticing method. The commenter
believed that such programs should have the same option as EPA-approved
programs to choose e-notice or newspaper on a programmatic basis,
allowing the permitting agency to determine the best method for
communicating with the public. The same commenter further indicated
that providing this option would allow for transition to e-notice at a
pace consistent with available resources.
3. EPA Response
    We are maintaining the requirement that permitting authorities
implementing the federal permitting rules use e-notice as their
consistent noticing method consistent with the proposal and our stated
objective to implement these best practices. As discussed further in
Section V of this document, the EPA did not receive any comments
demonstrating that one or more affected permitting authorities have
infrastructure and/or resource constraints that would render them
unable to implement e-notice and e-access as of the effective date of
the final rule or that implementation would cause a significant
additional burden. With regard to the equity point raised by the
commenter, delegated permitting authorities are, by definition, not the
same as EPA-approved permitting authorities. A permitting authority
that elects to administer the federal program under a delegation
agreement accepts the obligation to apply the EPA's regulations.

D. Comments on Mandatory E-Access for Programs That Use E-Notice

1. Summary of Proposal
    The EPA proposed to require that, when a permitting authority
adopts the e-notice approach, it also must provide e-access. In the
context of this rule, e-access means that the permitting authority must
make the draft permit available electronically (i.e., on the agency's
public Web site or on a public Web site identified by the permitting
authority) for the duration of the public comment period.
2. Brief Summary of Comments
    Several commenters supported e-notice with e-access and further
recommended that e-access be provided using commonly available, free
software. One commenter noted that e-access was important to increasing
overall project awareness and providing for more effective public
review and comment. Another commenter agreed with the EPA's proposed
approach to limit e-access to the draft permit, and agreed that the
method of making available other elements of the permit record should
be left to the permitting authority to avoid potential resource
constraints.

    Commenters opposed to the proposed mandatory e-access requirement
generally cited resource and information technology infrastructure
constraints, stating that the requirement should be for e-notice only
due to the added burden associated with posting additional records
without sufficient time, infrastructure or economic capability to do
so. Two commenters noted that the addition of e-access makes the rule
more stringent than existing law.
3. EPA Response
    The EPA is finalizing the requirement that permitting authorities
that adopt e-notice also adopt e-access consistent with the proposed
rule. The EPA believes that coupling e-notice and e-access provides the
affected public with ready and efficient access to both the notice and
the draft permit, and that such access supports informed public
participation in the permitting process. Further, the EPA believes that
the additional scanning and/or uploading of the draft permit to meet
the e-access requirement would be minimally burdensome. We agree with
the commenters that recommended that e-access be provided using
commonly available, free software, and our assessment indicates that
this is the current practice of permitting authorities that provide e-
access to elements of their draft permit records. Therefore, we do not
believe that rule language requiring the use of commonly available,
free software for providing e-access is necessary and the final rule
does not contain such a requirement.
    We disagree with the comments that the requirement to provide e-
access makes the noticing rules more stringent in a way with which
permitting authorities are not readily capable of complying or that is
contrary to law. The CAA does not prescribe the means or content of a
public notice under the permitting programs addressed in the final
rule. Comments received from state and local air agencies confirm that
many of these agencies already provide e-access, and in some cases
provide e-access to significantly more elements of the permit record
than just the draft permit. Thus, we see the requirement for e-access
as a logical and appropriate extension of the current requirement to
make elements of the permit record available at a location. In
addition, the EPA notes that the rule provides that access to documents
supporting a draft permit may be provided at a physical location such
as a public library. Based on comments received, the EPA believes that
the e-access requirement for simply providing, at a minimum, e-access
to the draft permit can be readily met by permitting authorities.

E. Comments on Final E-Notice Rule Implementation Timeframe/Transition

1. Summary of Proposal
    The EPA did not propose a transition period for technological or
other reasons, and proposed instead that once the e-notice rule becomes
effective, e-notice and e-access would be required for covered actions
by permitting authorities that implement the federal program rules
under 40 CFR parts 52, 55, 71 and 124. This includes EPA Regions,
permitting authorities that are delegated authority by the EPA to issue
permits on behalf of the EPA (via a delegation agreement), and
permitting authorities that have their own rules approved by the EPA in
a SIP where the SIP incorporates by reference the federal program
procedures and automatically updates when the EPA's rules are amended.
Under this rule, these programs will be required to implement e-notice
and e-access, with the exception of states that are delegated authority
to issue permits under part 55.
2. Brief Summary of Comments
    The EPA received three comments expressing concern about the
proposed effective date of the final rule and the need for additional
transition time for implementation. One industry association commenter
stated that establishing electronic notification systems and Web sites
for e-access requires careful planning, development and testing, and
recommended a one year implementation timeframe. Another industry
association commenter noted that the support of e-access capabilities
typically necessitates substantive changes to an agency's Web site
which will stretch far past the effective date of the rule. Another
commenter indicated that a local air agency has several rules that
mandate newspaper notice and requested a six month transition to allow
for amendment of its rules.
3. EPA Response
    The EPA is retaining the proposed effective date of the final rule.
As discussed previously, the EPA did not receive any comments
demonstrating that one or more affected permitting authorities have
infrastructure and/or resource constraints that would render them
unable to implement e-notice and e-access as of the effective date of
the final rule or that implementation would cause a significant
additional burden. Industry commenters only conveyed a general concern
and did not identify any specific affected permitting authorities that
would be unable to meet the final rule requirements in accordance with
the proposed effective date. The other commenter, a local air agency
with a partially-delegated permitting program, said a transition is
necessary to allow for agency rule changes. However, that same
commenter indicated that the agency already practices e-notice and e-
access on its own Web site. Therefore, it seems this air agency would
not be required to implement any changes to its rules to comply with
its obligations as a delegated permitting program after the final rule
becomes effective. To the extent that a delegated permitting authority
must separately comply with a state requirement to provide notice via a
newspaper, nothing in this rule precludes a permitting authority from
continuing to comply with such a state requirement while at the same
time satisfying the federal requirement for e-notice under this
regulation. This rule does not preclude delegated permitting
authorities from continuing to provide newspaper notice, either on a
discretionary basis or as required separately by state law and/or rule.
Under the amended rules, such a permitting authority should be able to
transition away from mandatory newspaper noticing over a period of time
without any need for a delay in realizing the benefits of e-notice for
EPA-issued permits or permits issued by other air agencies that
administer delegated programs.
    With regard to permitting authorities that administer EPA-approved
permitting programs, this rule does not necessarily require any changes
to those programs, and air agencies that wish to make changes have
discretion to do so. An approved state whose rules currently require
newspaper publication for all draft permits is not required by the rule
to make any changes to its public notice requirements. To the extent
such a state elects to replace newspaper notice with e-notice, this
rule establishes no timetable for the state to make this transition.
The state may continue providing newspaper notices until it can
complete changes to its regulations to remove a mandatory newspaper
publication requirement. Thus, with respect to rule changes by air
agencies with EPA-approved programs that elect to implement e-notice
alone (i.e., to no longer be required by state or local rules to
publish notices in a newspaper), such agencies are free to pursue such
changes on their own schedule. A delay in the effective date in this
final rule is not necessary to accommodate air agencies

with EPA-approved programs that may need time to adopt e-notice into
their rules. The fact that a state may need time to move to e-notice if
they choose that as their consistent noticing method does not justify
delaying the effective date of this rule for other air agencies with
EPA-approved programs that may be able to adopt e-notice more quickly.

F. Comments on Temporary Use of Alternative Noticing Methods

1. Summary of Proposal
    In the proposed rule, the EPA noted that there may be temporary
instances of Web site failure or failure in the availability for public
review of the posted e-notice and the draft permit (e-access). This
raises the question about what constitutes a significant interruption
in time sufficient to require an extension of the public comment period
or other measure(s) to cover the period of interruption. The EPA stated
in the proposal that the requirement that e-notice and e-access
postings be maintained ``for the duration of the comment period''
should not be interpreted as a requirement for uninterrupted access.
However, we sought comment on the EPA's proposed approach for the
phrase ``for the duration of the comment period.'' The EPA also
solicited comments regarding whether we should include a provision in
the regulations that allows a permitting authority to use an
alternative noticing (and/or access) method to reach the affected
public when the Web site is unavailable.
2. Brief Summary of Comments
    Several commenters indicated that they felt temporary alternative
notice methods were unnecessary. Some of these commenters recommended
that the notice be extended for the duration of the downtime of the Web
site. Several commenters noted that having the draft permit and public
notice available on the Web site during the comment period, compared to
the single day publication in the newspaper, results in a significant
increase in public access to the proposed permitting action, even if
Web site outages occur, and thus temporary alternative notice/access
methods should not be required. Commenters also believed that any
inability to provide e-notice would likely be resolved quickly and the
public would have sufficient access to a draft permit during the
comment period despite temporary Web site outages. Several commenters
supported the EPA's position that ``for the duration of the comment
period'' should not be interpreted as a requirement for uninterrupted
access. One commenter suggested that the requirement for 30-day notice
is satisfied when the notice first appears and noted that there is
nothing in the statute or current regulations that requires continuous
notice.
    Several commenters also favored rule requirements for temporary
alternative noticing. One commenter suggested that alternative noticing
criteria should be built into the rules to ensure that Web site
interruptions do not have a significant impact on public's ability to
review and comment or on the permitting schedule, and that it was
critical that agencies have the flexibility to choose their own
approach and not be left with the sole option of extending the public
notice period when there is a significant Web site interruption. Two
commenters suggested that a definition of ``the duration of the public
comment period'' should be added to the rule.
3. EPA Response
    The EPA is not finalizing any specific requirements regarding
temporary alternative noticing of permit actions to address the
temporary unavailability of the notice and/or draft permit due to Web
site outages, nor are we specifically defining ``the duration of the
public comment period.'' We do not believe that, in general, there are,
or will be, significant issues with e-notice and e-access availability
on Web sites used by permitting authorities, and we believe that
permitting authorities are in the best position to determine the
appropriate methods to address any situations that may arise on
specific permitting actions. In addition, we agree that there is no
statutory requirement for continuous notice of a draft permit during
the entire duration of the comment period. While there is significant
added value in posting a notice throughout the comment period, we do
not see a need for the EPA to define ``the duration of the public
comment period'' as a requirement for uninterrupted access. We support
the flexibility for the permitting authority to enact measures to
address Web site unavailability, including possibly extending the
public comment period. We have addressed this in the ``best practices''
in Section IV of this document.

G. Comments on Documentation/Certification of E-Notices

1. Summary of Proposal
    The proposed rule did not specifically address documenting and/or
certifying the posting of an e-notice to a Web site for the duration of
the comment period. However, the EPA received comments on this topic.
2. Brief Summary of Comments
    Several commenters supported the need for documentation and/or
certification of the e-notice in the administrative record for the
draft permit, further stating that it is critical that states document
this information in the event the decision is challenged. Two
commenters suggested that the EPA could address this issue in ``best
practices'' and provided specific examples.
3. EPA Response
    We agree with commenters that it is important for permitting
authorities to establish a record that they have provided notice of a
draft permit and the opportunity for public comment, but we do not
believe a specific certification requirement is necessary. EPA rules
have not required a certification of public notice and nothing in the
CAA requires it. The EPA has addressed documentation of e-notices in
the ``best practices'' in Section IV of this document. We support
flexibility for permitting authorities to comply with their specific
statutory, policy or regulatory provisions for e-notice and e-access
and to ensure that there is adequate documentation of the notice in the
administrative record for the draft permit.

H. Additional Guidance on E-Notice and E-Access for Minor NSR Permit
Actions

1. Summary of Proposal
    In the proposed rule, we indicated our intent to clarify that the
EPA's 2012 Memorandum's interpretation of prominent advertisement in 40
CFR 51.161(b)(3) as media neutral also applies to 40 CFR 51.161(b)(1).
More specifically, we proposed that allowing e-access (i.e., Web site
access) to the information submitted by the owner or operator and
access to the agency's analysis of the effect on air quality would
satisfy the requirement that this information be available for public
inspection in at least one location in the area affected. We believe
this approach is consistent with the EPA's 2012 Memorandum with respect
to allowing the use of electronic and other methods to provide notice
of minor NSR actions, and it is reasonable, for reasons discussed in
this preamble, to allow e-access to permit documents for major NSR
permits.
    In addition, in issuing the EPA's 2012 Memorandum, the EPA
indicated that our interpretation of the term prominent

advertisement in 40 CFR 51.161(b)(3) applies only to minor sources and
not to synthetic minor sources.\32\ Given the statement in the
memorandum, which raised uncertainty about the flexibility to use media
neutral methods for synthetic minor NSR permits, the EPA has now
determined that it is not appropriate to exclude such synthetic minor
permits in this regard, and the Agency proposal clarified that the
limitation established in Footnote 1 of the EPA's 2012 Memorandum is no
longer appropriate.
---------------------------------------------------------------------------

    \32\ Synthetic minor sources are those sources that have the
potential to emit regulated NSR pollutants at or above the major
source thresholds, but that have taken enforceable limitations to
restrict their potential to emit below such thresholds.
---------------------------------------------------------------------------

2. Brief Summary of Comments
    All commenters supported the extension of the interpretation in the
EPA's 2012 Memorandum to synthetic minor NSR permits. One commenter
recommended that the EPA either propose changes to 40 CFR 51.161(b)(1)
similar to what was proposed for the other sections of the CFR in the
rule proposal or expand the EPA's existing interpretation of ``media
neutral'' notification for minor NSR programs to specifically indicate
that information available electronically meets the requirements of 40
CFR 51.161(b)(1).
3. EPA Response
    The EPA agrees that we should revise the text of 40 CFR
51.161(b)(1) similar to what was proposed for other sections of the
CFR. This better communicates our view that Internet posting of this
information is sufficient to meet the subject records availability
requirements under the existing rule language. The EPA does not agree,
however, that it needs to propose the revised text before adopting it
in this final rule. The proposed rule provided adequate notice of the
EPA's intent to clarify that the requirements of 40 CFR 51.161(b)(1)
are satisfied by making the information available electronically. We
received no adverse comments on this point. The text the EPA is adding
to 40 CFR 51.161(b)(1) is similar to the text the EPA proposed to add
to 40 CFR 51.166(q)(2)(ii). We received no adverse comments regarding
that text. Therefore, in this final rule, the EPA is revising 40 CFR
51.161(b)(1) to add the following: ``This requirement may be met by
making these materials available at a physical location or on a public
Web site identified by the State or local agency.''
    This final rule preamble also serves to extend the EPA's media
neutral interpretation of prominent advertisement under 40 CFR 51.161
to synthetic minor permits. The EPA will attach a notification to the
electronic version of the EPA's 2012 Memorandum indicating that the
media neutral interpretation also applies to synthetic minor permits.

VI. Environmental Justice Considerations

    The 1990 CAA Amendments generally require that the EPA or the
permitting authority provide adequate procedural opportunities for the
general public to have informed participation in the air permitting
process in the areas affected by a proposed permit. These areas include
EJ communities.
    The effectiveness of noticing methods for reaching underserved and
EJ communities is a substantial concern to the EPA. A 2011 report
issued by the NEJAC found that publication in the legal section of a
regional newspaper is antiquated and ineffective, and is not ideal for
providing notice to affected EJ communities. Regarding public
participation, the report recommends the following to the EPA: ``To
ensure meaningful public participation, the public notice and outreach
process must include direct communication in appropriate languages
through telephone calls and mailings to EJ and tribal communities,
press releases, radio announcements, electronic and regular mail, Web
site postings and the posting of signs.'' \33\ Thus, the NEJAC
specifically listed Web site postings as a method to ensure meaningful
public participation. Furthermore, several comments received on the
proposed rule, including comments from air agencies with practical
experience implementing e-notice and e-access, strongly supported these
mechanisms as more effective in providing public notice of permitting
actions to EJ communities. However, notwithstanding our conclusion that
e-notice and e-access are a viable and effective means of making
information widely available to the public, including EJ communities,
we strongly encourage permitting authorities to provide additional
notice and access to the draft permit (and other elements of the
administrative records for which they choose to provide e-access) where
they determine that a specific jurisdiction or population would be
better served with supplemental notice in the newspaper and/or another
noticing method, such as those suggested by the NEJAC, and access to
elements of the administrative record (for which e-access was provided)
at a physical location.
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    \33\ ``Enhancing Environmental Justice in EPA Permitting
Programs,'' National Environmental Justice Advisory Council (April,
2011), pages 20-21, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-in-permitting-report-2011.pdf.
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VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant action and was, therefore, not
submitted to the OMB for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden
under the PRA. This final rule revises regulations to address public
noticing method requirements for draft permits for certain sources of
air pollution. It is important to note that the final rule revisions do
not require air agencies that implement the permitting program through
an EPA-approved title V program or SIP to use e-notice. These agencies
may continue to provide notice by newspaper publication or they may
adopt e-notice as their consistent notification method. Only in the
latter case would an air agency be required to revise the title V
program rules or undertake a SIP revision. For EPA-delegated agencies,
and for agencies that incorporate by reference the federal rules and
their rules automatically update, no rulemaking action is required by
the agency to adopt the e-notice requirements. However, if any of these
agencies decides to retain newspaper publication as their consistent
notification method, they could request removal of delegation, revise
their program rules consistent with the rules for state programs (e.g.,
40 CFR 51.166), and undertake a SIP revision. In addition, an agency
delegated a 40 CFR part 71 program may need to update its delegation
agreement. An air agency delegated the 40 CFR part 71 program may have
to choose between implementing e-notice, obtaining approval for
implementing a 40 CFR part 70 program, or relinquishing their title V
program. To the extent that a SIP revision or a title V program
revision is necessary to effect the changes being proposed, we believe
that the burden to revise SIPs is already accounted for under the PSD
and NNSR information collection request (ICR) No. 1230.29 (OMB Control
No. 2060-0003) and the burden to revise title V programs is included in
ICR Nos. 1587.13 and 1713.11 (OMB Control Nos. 2060-0243 and 2060-
0336).

    This action has no burden on industry sources since permitting
authorities are responsible for the noticing of permits. Therefore, the
final rule revisions do not contain any information collection
activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements directly on small entities.
This final rule revises regulations to address public noticing method
requirements for draft permits for certain sources of air pollution.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded federal mandate as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly
affect small governments. This final action imposes no enforceable duty
on any state, local or tribal governments, or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This final action does not have tribal implications, as specified
in Executive Order 13175. It will not have substantial direct effect on
tribal governments, on the relationship between the federal government
and Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    The final rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. The results of this evaluation are contained
in Section VI of this document titled ``Environmental Justice
Considerations.''

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of Congress and to the Comptroller General of the
United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of any nationally applicable regulation, or any action the
Administrator ``finds and publishes'' as based on a determination of
nationwide scope or effect must be filed in the United States Court of
Appeals for the District of Columbia Circuit within 60 days of the date
the promulgation, approval, or action appears in the Federal Register.
This final rule is nationally applicable, as it revises the rules for
public notice under the minor NSR, PSD, NNSR, title V and OCS
permitting programs in 40 CFR 51.161, 40 CFR 51.166, 40 CFR 51.165, 40
CFR 52.21, 40 CFR part 124, 40 CFR part 70, 40 CFR part 71 and 40 CFR
part 55. As a result, petitions for review of this rule must be filed
in the United States Court of Appeals for the District of Columbia
Circuit within December 19, 2016. CAA section 307(d)(7)(B) further
provides that ``[o]nly an objection to a rule or procedure that was
raised with reasonable specificity during the period for public comment
(including any public hearing) may be raised during judicial review.''
This section also provides a mechanism for the EPA to reconsider the
rule ``[i]f the person raising an objection can demonstrate to the
Administrator that it was impracticable to raise such objection within
[the period for public comment] or if the grounds for such objection
arose after the period for public comment (but within the time
specified for judicial review) and if such objection is of central
relevance to the outcome of the rule.'' Any person seeking to make such
a demonstration should submit a Petition for Reconsideration to the
Office of the Administrator, U.S. EPA, Room 3000, EPA WJC, 1200
Pennsylvania Ave. NW., Washington, DC 20460, with a copy to all
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT
section of this final rule, and the Associate General Counsel for the
Air and Radiation Law Office, Office of General Counsel (Mail Code
2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
Filing a petition for reconsideration by the Administrator of this
final action does not affect the finality of this action for the
purposes of judicial review, nor does it extend the time within which a
petition for judicial review must be filed, and shall not postpone the
effectiveness of this action.

VIII. Statutory Authority

    The statutory authority for this action is provided by 23 U.S.C.
101; 42 U.S.C. 6901, et seq.; 42 U.S.C. 300f, et seq. 33 U.S.C. 1251,
et seq.; 42 U.S.C. 7401, et seq.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

40 CFR Part 52

    Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Reporting and
recordkeeping requirements.

40 CFR Part 55

    Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Reporting and
recordkeeping requirements.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

40 CFR Part 71

    Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

    Dated: October 5, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart I--Review of New Sources and Modifications

0
2. Section 51.161 is amended by revising paragraph (b)(1) to read as
follows:

Sec.  51.161  Public availability of information.

* * * * *
    (b) * * *
    (1) Availability for public inspection in at least one location in
the area affected of the information submitted by the owner or operator
and of the State or local agency's analysis of the effect on air
quality. This requirement may be met by making these materials
available at a physical location or on a public Web site identified by
the State or local agency;
* * * * *

0
3. Section 51.165 is amended by adding paragraph (i) to read as
follows:

Sec.  51.165  Permit requirements.

* * * * *
    (i) Public participation requirements. The reviewing authority
shall notify the public of a draft permit by a method described in
either paragraph (i)(1) or (2) of this section. The selected method,
known as the ``consistent noticing method,'' shall comply with the
public participation procedural requirements of Sec.  51.161 of this
chapter and be used for all permits issued under this section and may,
when appropriate, be supplemented by other noticing methods on
individual permits.
    (1) Post the information in paragraphs (i)(1)(i) through (iii) of
this section, for the duration of the public comment period, on a
public Web site identified by the reviewing authority.
    (i) A notice of availability of the draft permit for public
comment;
    (ii) The draft permit; and
    (iii) Information on how to access the administrative record for
the draft permit.
    (2) Publish a notice of availability of the draft permit for public
comment in a newspaper of general circulation in the area where the
source is located. The notice shall include information on how to
access the draft permit and the administrative record for the draft
permit.

0
4. Section 51.166 is amended by revising paragraphs (q)(2)(ii), (iii),
(vi), and (viii) to read as follows:

Sec.  51.166  Prevention of significant deterioration of air quality.

* * * * *
    (q) * * *
    (2) * * *
    (ii) Make available in at least one location in each region in
which the proposed source would be constructed, a copy of all materials
the applicant submitted, a copy of the preliminary determination, and a
copy or summary of other materials, if any, considered in making the
preliminary determination. This requirement may be met by making these
materials available at a physical location or on a public Web site
identified by the reviewing authority.
    (iii) Notify the public, by advertisement in a newspaper of general
circulation in each region in which the proposed source would be
constructed, of the application, the preliminary determination, the
degree of increment consumption that is expected from the source or
modification, and of the opportunity for comment at a public hearing as
well as through written public comment. Alternatively, these
notifications may be made on a public Web site identified by the
reviewing authority. However, the reviewing authority's selected
notification method (i.e., either newspaper or Web site), known as the
``consistent noticing method,'' shall be used for all permits subject
to notice under this section and may, when appropriate, be supplemented
by other noticing methods on individual permits. If the reviewing
authority selects Web site notice as its consistent noticing method,
the notice shall be available for the duration of the public comment
period and shall include the notice of public comment, the draft
permit, information on how to access the administrative record for the
draft permit and how to request and/or attend a public hearing on the
draft permit.
* * * * *
    (vi) Consider all written comments submitted within a time
specified in the notice of public comment and all comments received at
any public hearing in making a final decision on the approvability of
the application. The reviewing authority shall make all comments
available for public inspection at the same physical location or on the
same Web site where the reviewing authority made available
preconstruction information relating to the proposed source or
modification.
* * * * *
    (viii) Notify the applicant in writing of the final determination
and make such notification available for public inspection at the same
location or on the same Web site where the reviewing authority made
available preconstruction information and public comments relating to
the proposed source or modification.
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
5. The authority citation for part 52 continues to read as follows:

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

Subpart A--General Provisions

0
6. Section 52.21 is amended by revising paragraphs (q) and (w)(4) to
read as follows:

Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (q) Public participation. The administrator shall follow the
applicable procedures of 40 CFR part 124 in processing applications
under this section.
* * * * *
    (w) * * *
    (4) If the Administrator rescinds a permit under this paragraph,
the Administrator shall post a notice of the rescission determination
on a public Web site identified by the Administrator within 60 days of
the rescission.
* * * * *

PART 55--OUTER CONTINENTAL SHELF AIR REGULATIONS

0
7. The authority citation for part 55 continues to read as follows:

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

0
8. Section 55.5 is amended by revising paragraphs (f)(1)(i) and (ii) to
read as follows:

Sec.  55.5  Corresponding onshore area designation.

* * * * *
    (f) * * *
    (1) * * *
    (i) Make available, in at least one location in the NOA and in the
area requesting COA designation, which may be a public Web site
identified by the Administrator, a copy of all materials submitted by
the requester, a copy of the Administrator's preliminary determination,
and a copy or summary of other materials, if any, considered by the
Administrator in making the preliminary determination; and
    (ii) Notify the public, by prominent advertisement in a newspaper
of general circulation in the NOA and the area requesting COA
designation or on a public Web site identified by the Administrator, of
a 30-day opportunity for written public comment on the available
information and the Administrator's preliminary COA designation.
* * * * *

0
9. Section 55.6 is amended by revising paragraph (a)(3) to read as
follows:

Sec.  55.6  Permit requirements.

    (a) * * *
    (3) Administrative procedures and public participation. The
Administrator will follow the applicable procedures of 40 CFR part 71
or 40 CFR part 124 in processing applications under this part. When
using 40 CFR part 124, the Administrator will follow the procedures
used to issue Prevention of Significant Deterioration (``PSD'')