[Federal Register Volume 80, Number 249 (Tuesday, December 29, 2015)]
[Proposed Rules]
[Pages 81234-81251]
[FR Doc No: 2015-32639]

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ENVIRONMENTAL PROTECTION AGENCY

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

[EPA-HQ-OAR-2015-0090, FRL-9937-21-OAR]
RIN 2060-AS59

Revisions to the Public Notice Provisions in Clean Air Act
Permitting Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) proposes to
revise 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) and the corresponding onshore area (COA)
determinations for implementation of the OCS air quality regulations.
This action would remove 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 would instead allow for
electronic noticing (e-notice) of these actions. The proposed rule
revisions would apply to major source air permits issued by the EPA, by
EPA-delegated air agencies, and by air agencies with EPA-approved
programs (with the exception of permits that are issued pursuant to the
Tribal NSR Rule, which already allows for e-notice methods).

DATES: Comments. Comments must be received on or before February 29,
2016.
    Public hearing. If anyone contacts us requesting a public hearing
on or before January 13, 2016, we will hold a hearing. Additional
information about the hearing, if requested, will be published in a
subsequent Federal Register document.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2015-0090, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, Cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For general information on this
proposed rule for NSR and OCS programs, please contact Mr. Dave
Svendsgaard, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, by phone at<PHONE_NUMBER> or by email
at<EMAIL_ADDRESS>for title V programs please contact Ms.
Grecia Castro, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, by phone at<PHONE_NUMBER> or by email
at<EMAIL_ADDRESS>To request a public hearing or information
pertaining to a public hearing on this document, contact Ms. Pamela
Long, Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency, by phone at<PHONE_NUMBER> or by email at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. How is this Federal Register notice organized?

    The information presented in this document is organized as follows:

I. General Information
    A. How is this Federal Register notice organized?
    B. Does this action apply to me?
    C. What should I consider as I prepare my comments for the EPA?
    D. How can I find information about a possible public hearing?
    E. Where can I obtain a copy of this document and other related
information?
II. Overview of Action
III. Background
IV. Proposed Revisions
    A. What are the e-notice requirements?
    B. What are the e-access requirements?
    C. Requirements for Agencies Implementing the Federal Permit
Program Rules
    D. Requirements for Agencies Implementing Approved Programs
Pursuant to the EPA's Permitting Rules for States
    E. Soliciting Comment on Allowing Temporary Use of Alternative
Noticing Methods
    F. Clarifying E-Notice and E-Access Applicability for Minor NSR
Permits
    G. Notice Requirements for PSD Permit Rescissions
V. Policy Rationale and Legal Basis
VI. Implementation
    A. Agencies Implementing Federal Preconstruction Permit Program
Rules
    B. Agencies Implementing State Preconstruction Permit Program
Rules
    C. Agencies Implementing Approved Operating Permit Programs
    D. Agencies Delegated to Implement the Federal Operating Permit
Program
VII. Environmental Justice Considerations
VIII. 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
IX. Statutory Authority

B. Does this action apply to me?

    Entities potentially affected by this proposed rule include air
agencies 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 air programs and EPA-approved air programs that are
operated by state, local and tribal governments. Entities also
potentially affected by this proposed rule include owners and operators
of stationary and OCS sources that are subject to air pollution
permitting under the CAA, as well as the general public who would have
an interest in knowing about permitting actions, public hearings and
other agency actions.

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

    1. Submitting CBI. Do not submit this information to the EPA
through http://www.regulations.gov or email. Clearly mark the specific
information that you claim to be CBI. For CBI in a disk or CD-ROM that
you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and
then identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
    2. Tips for preparing comments. When submitting comments, remember
to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions. The proposed rule may ask you to
respond to specific questions or organize comments by referencing a
Code of Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used to support your comment.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns
wherever possible, and suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

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

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

    In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at http://www3.epa.gov/nsr/actions.html and http://www3.epa.gov/airquality/permits/actions.html.

II. Overview of Action

    The CAA authorizes the EPA to administer and oversee the permitting
of stationary and other sources of air pollution. To accomplish this
obligation, the EPA has promulgated permitting regulations for
construction of sources pursuant to NSR 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 OCS sources under CAA Sec.  328. These
regulations are contained in 40 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
minimum permitting requirements under an approved state implementation
plan (SIP) and title V program.\2\ 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
permit and other actions are the subject of this proposed rule.
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    \1\ In lieu of ``permitting authority,'' in this preamble and
rule, we sometimes use the terms ``permitting agency,'' ``reviewing
authority,'' and ``air agency'' (or ``agency''). These terms
generally denote all forms of air permitting authorities, including
EPA Regions, EPA-delegated air programs, and air programs that are
operated by state, local and tribal governments and 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\ NSR includes the Prevention of Significant Deterioration
(PSD), nonattainment major NSR (NNSR), and minor NSR permitting
programs. Requirements for the NSR programs can be found at 40 CFR
51 for approved state and local permitting programs, and at 40 CFR
52 for federal permit programs. (In addition, 40 CFR 52 references
part 124 for additional requirements.) Requirements for approved
title V operating permit programs are located at 40 CFR 70 and for
federal operating permit programs at 40 CFR 71. Requirements for the
permitting of OCS sources can be found at 40 CFR 55.
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    In general, prior to issuing a permit to a major stationary source
\3\ of air pollution, the permitting authority prepares a draft permit,
provides notice to the public of the draft permit, and provides the
public reasonable access to the draft permit, the application, and
supporting information. The permitting authority must provide an
opportunity for public comment, as well as an opportunity to request a
public hearing on the draft permit. See, e.g., 40 CFR 70.7(h). In
addition, the information that supports the permit decisions--referred
to in some cases as the ``permit record'' or ``administrative
record''--must be made available to the public for inspection. Id.
Under the title V programs, these procedures apply to permits for all
covered sources, including certain non-major sources. See 40 CFR
70.3.\4\
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    \3\ 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.
    \4\ The EPA's rules generally require less extensive public
participation procedures for the permitting of minor sources and
minor modifications.
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    This action addresses the method by which the permitting agency
provides the required notice of the permitting action and access to the
information supporting the action. We specifically propose to remove
from the EPA rules the mandatory requirement that draft permits under
CAA permitting programs for major sources be noticed in a newspaper of
general circulation and instead allow--and, in some cases, require (as
explained below)--the use of electronic methods to provide notice of
and access to these draft permits. We are not changing the majority of
the existing procedural requirements for processing permit applications
and the requirement to keep a record of the materials that support the
permit decisions. We also are not changing existing requirements as to
the substance of the information that must be made available when the
permitting agency notifies the public of the draft permitting action.
    We are also not proposing to revise the federal rules for public
notice that apply to minor NSR permits under 40 CFR part 51.161, which
require ``notice by prominent advertisement.'' See Sec.  51.161(b)(3).
In 2012, the EPA clarified through guidance that the Sec.  51.161 term
``prominent advertisement'' is media neutral, and therefore newspaper
notice of minor NSR actions is not required. (``EPA's 2012
Memorandum'') \5\ The guidance memorandum did not, however, address
notice requirements for synthetic minor source permits.\6\ In

this action, we are proposing to extend the media neutrality policy of
the EPA's 2012 Memorandum to all permit actions governed by Sec.
51.161, including synthetic minor source permits, and to ensure that e-
access methods are available for minor NSR permit actions.
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    \5\ 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.
    \6\ A synthetic minor source is a source that has taken
restrictions to avoid applicability of major source requirements.
Under the NSR program, such restrictions must be legally and
practically enforceable. See, e.g., 67 FR 80191.
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    We are also not proposing to revise the public participation
requirements for permits that establish a Plantwide Applicability
Limitation (PAL), which cross reference the public participation
procedures at Sec.  51.161. See Sec. Sec.  51.165(f)(5), 51.166(w)(5),
and 52.21(aa), and Appendix S to part 51, Section IV.K.5. As discussed
in the preamble to the PAL regulations (``PAL preamble''), ``[t]he
reviewing authority must establish a PAL in a federally enforceable
permit (for example, a ``minor'' NSR construction permit, a major NSR
permit, or a SIP-approved operating permit program).'' 67 FR 80208;
December 31, 2002. The PAL preamble further explains that ``the
reviewing authority must provide an opportunity for public
participation when issuing a PAL permit . . . consistent with the
requirements at Sec.  51.161 and include a minimum of a 30-day period
for public notice and opportunity for public comment.'' Id. As
explained above, in EPA's 2012 Memorandum we clarified that the term
``prominent advertisement'' in Sec.  51.161 is media neutral for minor
NSR permits, and in this action we are proposing to extend the
applicability of the policy in that memorandum to all permit actions
governed by Sec.  51.161. In addition, the PAL preamble explains
``[w]here the PAL is established in a major NSR permit, major NSR
public participation procedures apply.'' Id. In this rule action, we
propose to amend the public participation requirements for major source
permits under CAA permitting programs to allow or require the use of
electronic methods to provide notice of these permits. Therefore, since
this proposed action along with our previous rules and guidance would
collectively ensure that Sec.  51.161 and the major source specific
regulations allow for e-notice in lieu of newspaper notice, and these
public notice requirements would apply as well to all of the types of
permits that may be used to establish a PAL, we believe that it is
unnecessary to propose any revisions to the PAL-specific provisions of
EPA's air permitting rules.
    In addition, these proposed revisions would not change the
requirements for nonattainment NSR (NNSR), minor NSR, and synthetic
minor NSR permits in Indian country, which are contained in 40 CFR part
49 and allow for other means of public noticing beyond a newspaper of
general circulation. See Sec. Sec.  49.157 (minor NSR and synthetic
minor NSR permits) and 49.171 (nonattainment major NSR permits).
However, these proposed revisions would change the requirements for PSD
permits that the EPA issues in Indian country, as well as Prevention of
Significant Deterioration (PSD) permits that are issued by a tribe
through a delegation agreement or by a tribe that has an approved
tribal implementation plan (TIP) that incorporates by reference the
public noticing requirements in the federal PSD rules at 40 CFR 52.21.
Also, since this proposal would revise the noticing requirements in 40
CFR 71, which apply to Indian country absent an approved part 70
program, the revisions would affect the public notice procedures for
the majority of title V operating permits in tribal lands.\7\ Also, the
tribal agency with an approved part 70 program would have the option to
implement e-notice under the same terms that apply to other approved
part 70 programs.
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    \7\ Most states, certain local agencies and currently one tribe
have approved part 70 programs. The EPA administers the part 71
federal program in most areas of Indian country (one tribe has been
delegated implementation authority) and on the Outer Continental
Shelf (when there is no delegated state permitting authority).
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    This action addresses the public notice requirements for all air
agencies. For the noticing of major source permits by the EPA and other
air agencies that implement the federal permitting rules, e-notice
would be required under this proposed rule. For major source permits
issued by air agencies that implement their own rules approved by EPA,
this proposed rule would allow additional flexibility such that these
permitting authorities would have the option to provide e-notice or to
continue to provide traditional newspaper notice, although they must
adopt a single, ``consistent noticing method'' to be used for all of
their major source permits. Thus, where an agency opts to post notices
of draft permits on a Web site in lieu of newspaper publication, it
must post all notices to this Web site in order to ensure that the
public has a consistent and reliable location to turn to for all permit
notices. If the agency does not maintain a consistent noticing method
(i.e., if the state posts some notices to a Web site and others in the
newspaper), the public may not know where to look for information
regarding a permit for a source of interest to them. We are taking
comment on this proposed approach of requiring a consistent noticing
method for these approved state programs, as well as the option of not
requiring a consistent noticing method.
    In addition, to satisfy the proposed requirements for e-notice,
except for programs that implement part 51 regulations for PSD and NNSR
permits and states that issue OCS permits, the air agency must maintain
a mailing list that will notify any person on the list of any new
public notice. This approach is consistent with the current noticing
requirements in the federal rules for NSR and EPA-issued OCS permits,
and for federal and state operating permits under parts 70 and 71 (and
OCS permits subject to these requirements), which all require that a
copy of the notice be mailed to persons who have subscribed to the
appropriate mailing list. The EPA believes that continuing with this
approach will maintain the current efforts to reach communities through
a variety of methods. This proposed rule clarifies that distributing
the public notice information to the persons on the mailing list can be
by way of email or the more traditional mailing methods (e.g., postal
service, courier).
    This proposed action also requires that, when a permitting
authority adopts the e-notice approach, it also must provide e-access.
For the purpose of this proposed 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 Web site
identified by the permitting agency, which could be an online document
management system) for the duration of the public comment period. It is
important to note that, while e-access in this proposed rule only
pertains to the availability of and access to the draft permit during
the public comment period, nothing in this rule alters the requirement
for the permitting authority to maintain a record of the permit action
and to make it available to the public. Thus, a permitting authority
that is satisfying the proposed conditions of 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 (as it
has always been required to do). Access to the other materials can be
provided either electronically, or at a physical location, or a
combination of both.
    In addition to the proposed approach described above for EPA-
approved permitting programs, we are requesting comment on an
alternative approach. In the alternative approach, permitting programs
that implement 40 CFR part 51 or 70 and that select e-notice as their

consistent noticing method would have the option, but would not be
required to, provide e-access. This approach could be of benefit to
some agencies that may notice permits using an online permits
register--which would qualify for e-notice under this rule proposal--
but do not have the Web site capabilities to satisfy the e-access
requirement of making the draft permit available electronically.
    Additionally, we are soliciting comment on including a provision in
the regulations to allow air agencies to temporarily use an alternative
noticing method if their Web site is unavailable for a period of time.
This may be necessary during periods when a Web site is temporarily
offline due to, for example, malfunctions, transitions to a different
Web site platform, or emergency situations that result in prolonged
electrical system outages. As with the Web site noticing method, the
permitting agency would need to assure that the alternative noticing
method provides adequate notice to the affected public. We specifically
seek comment on the criteria for determining when the alternative
method should be available, the length of time it could be used, and
how the transition to the method would be conveyed to the public.
    Finally, we are proposing to extend the use of e-notice methods to
three non-permitting actions. In each case, the regulatory provision
currently requires notice of the action by way of newspaper
publication. We briefly describe each provision below.
     The ``OCS Air Regulations'' at 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
action, we are proposing to require electronic notice of the COA
designation.
     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.''
We are proposing in this action to revise the provision to specifically
require that the Administrator notify the public of a permit rescission
by e-notice.
     Paragraph 40 CFR 71.4(g) provides that, when the EPA takes
action to administer and enforce, or to delegate, a federal operating
permits program, 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.'' We are proposing to revise this
provision to require the additional notice of the program effectiveness
or delegation by way of posting on a public Web site identified by the
EPA.
     It is important to note that the EPA is not proposing
additional public participation where existing rules do not require
public participation. Thus, the minimum notice and access requirements
being proposed in this rule would apply to the public participation
procedures of air quality permits issued by EPA and other air agencies
in cases where the current rules require public participation in a
permitting decision.

III. Background

    While the CAA requires permitting authorities to offer the
opportunity for public participation in the processing of air permits,
it does not specify the best or preferred method for providing notice
to the public. See, e.g., CAA 165(a)(2). The EPA's air permitting
regulations also address the issue of public participation, and in
those rules there is more specificity regarding the methods of meeting
the public notice obligations. The EPA's regulations are intended to
ensure that the EPA and other permitting authorities provide adequate
public notice of their permitting actions. Among the procedural
requirements for public notice, the current regulations for the major
NSR, title V and OCS programs include (or cross reference to) specific
language that requires agencies to notify the public of pending
permitting actions and the opportunity to comment on those permitting
actions by advertisement in a newspaper of general circulation.\8\
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    \8\ Those regulations also specify the information that the
public notice must include, and, as noted above, this regulation
does not change such information requirements.
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    When the EPA first developed public notice provisions for the major
NSR program in the late 1970s and early 1980s, newspaper advertisement
was the most commonly accepted method for providing notice of permits
and other agency actions in the community. The EPA, therefore,
finalized rules that contained, among other things, requirements for
newspaper notice of permitting and other actions. When the title V
rules were first issued in 1992, the EPA considered the public notice
requirements for PSD permits and similarly required in part that the
public be notified of a permitting action by way of ``a newspaper of
general circulation in the area where the source is located or in a
State publication designed to give general public notice.'' 40 CFR
70.7(h)(1).\9\ OCS regulations, also promulgated in 1992, included this
same approach of requiring public notice via newspaper publication, by
requiring that the applicable requirements for federal PSD permits in
40 CFR part 124 also apply to the processing of OCS permit
applications.\10\ The EPA also added specific language within the OCS
rules that require COA designation determinations to be announced by
way of a newspaper of general circulation. Consequently, in
promulgating the rules for NSR, title V and OCS air programs, the EPA
determined that it was most appropriate for permitting actions, COA
designations, and public hearings to be announced to the public by a
newspaper notice. The public notice procedures in the regulations for
each of these programs have not changed with respect to newspaper
notification since they were first developed and issued.
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    \9\ See 57 FR 32250 (July 21, 1992) regarding state operating
permit programs (40 CFR 70) and 61 FR 34202 (July 1, 1996) regarding
federal operating permit programs (40 CFR 71).
    \10\ See 57 FR 40792 (September 4, 1992).
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    Permitting authorities typically have met the required newspaper
notice provision by publishing a single-day legal notice of
availability of the draft permit action in a local newspaper. In some
cases, depending on the location of the source and the demographics of
the affected community, some permitting agencies may publish the notice
in multiple newspapers to reach the intended audience, or may provide
bilingual newspaper notices of their permitting actions. The specific
contents of the newspaper notice are specified for some programs, and
they tend to vary with different permitting authorities. Most notices
typically contain basic information about the draft permit, such as the
permit number, the name and physical address of the facility, and the
name and contact information of a person from whom interested persons
may obtain additional information on the draft permit. Depending on the
permitting authority, the notice may include more detailed information
on the draft permit, such as the anticipated emissions increase from
the proposed project. The public notice for the permit also informs
interested parties on how to request and/or attend a public hearing and
how to access additional information relevant to the draft permit. This
additional information is typically

housed in a designated public reading room near the source or in a
library at the permitting agency with specified hours of operation for
viewing the documents. In the case of title V permits, as well as PSD
and OCS permits that follow 40 CFR part 124, the regulations also
provide for mailing lists for permit actions and, as a result, notice
may also occur for these draft permits (in addition to the mandatory
newspaper notice) via direct mail or other communication to those
persons included on a mailing list.
    Over the years, however, availability of and access to the basic
forms of electronic media--namely, the Internet and email--have
increased significantly across the United States. More recently,
sophisticated mobile devices and high-speed wireless networks are
transforming the Internet and how our society interacts with it.\11\
One effect of this electronic media development is that circulation of
newspapers and other print media is declining, making printed newspaper
notice less effective in providing widespread public notice of permit
actions. Over the same time period, many permitting authorities
developed their own Internet Web sites and began using email for the
purpose of communicating with the public. In doing so, many of these
agencies began to supplement the required one-time newspaper
publication with the posting of electronic notices of availability of
draft permits via their agency Web sites. Once the permitting agency
develops its Web site and formats it to post permitting notices, the
agency has an effective and convenient way to communicate permitting-
related information to the majority of the public. In addition, the
effort and cost to post a notice on an already-established Web site is
generally lower than the expense of purchasing a newspaper
advertisement, and it generally enables broader and faster
dissemination of information to interested and affected parties as
compared to newspaper noticing.
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    \11\ Exploring the Digital Nation: Embracing the Mobile
Internet, U.S. Department of Commerce, National Telecommunications
and Information Administration, October 2014, http://www.ntia.doc.gov/files/ntia/publications/exploring_the_digital_nation_embracing_the_mobile_internet_10162014.pdf.
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    The EPA believes that having the notice of availability and the
draft permit remain electronically available on an agency's Web site
for an extended period of time, as compared to a one-time publication
in an area newspaper that directs the public to a reading room at the
permitting agency, or at a library or other location near the source,
results in a significant increase in public awareness of the proposed
permitting action and access to the draft permit. Even without this
additional electronic access to the draft permit, posting the notice
for the duration of the public comment period provides more widespread
public notice than a single-day publication in a newspaper of general
circulation.
    We note that, in some instances, communities that are potentially
affected by a proposed permitting action may have limited access to the
Internet, and therefore may rely more on newspapers for receiving their
information. In these cases, newspaper publication can still provide a
means to convey permitting information to these communities. However,
we expect that in many cases these communities would have access to a
public library with Internet access that would provide access to the
online permit notices and draft permits. Furthermore, because many
permitting authorities are now supplementing their newspaper notices
with electronic posting of the notice on their agency Web site, it
seems unlikely that the public would continue to seek out permitting
announcements in newspapers in the future. As discussed later in this
preamble, a report issued by the National Environmental Justice
Advisory Council (NEJAC) found that publication in the legal section of
a newspaper is antiquated and ineffective and is not ideal for
providing notice to affected environmental justice (EJ) communities.
Given this significant shift away from the public's reliance on
traditional newspapers for information, and the corresponding increased
reliance on the Internet, the EPA recognizes that newspaper notice is
no longer the only, or most effective, method of announcing permitting
actions to reach the public.
    To this end, the EPA has identified the need to allow for more
noticing options than just newspaper publication. In 2011, the EPA
issued the Tribal NSR Rules that contained, among other things,
requirements for noticing of permits in Indian country that allowed for
options other than newspaper and print media.\12\ The July 2011 rule
provides options such as web posting and email lists among the methods
that the permitting authority may use to provide adequate public notice
in agreement with the prominent advertisement goal. See 76 FR 38764.
Then, through guidance issued in 2012, the EPA clarified its position
on what constitutes public notice for minor NSR permit programs and is
adequate to meet the requirement of ``notice by prominent
advertisement.'' 40 CFR 51.161(b)(3). As noted above, the EPA's 2012
Memorandum explained, ``. . . as the public continues to increase the
use of web based sources of information and states experience decreases
in budgets allocated for public noticing of permits, we believe that
for the purposes of minor NSR programs and permits, the `prominent
advertisement' requirement at 40 CFR 51.161(b)(3) is media neutral.''
The guidance further explains that the EPA believes ``it is appropriate
to give state and local programs the flexibility to determine what
constitutes prominent advertisement for purposes of minor NSR programs
and permits, consistent with the overarching requirement that the
public have routine and ready access to the alternative publishing
venues.''
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    \12\ See 76 FR 38748, July 1, 2011.
---------------------------------------------------------------------------

IV. Proposed Revisions

    This action proposes to remove the mandatory requirement that draft
permits for sources subject to the major NSR, title V or OCS programs
be noticed in a newspaper of general circulation and instead allow the
use of electronic methods to provide notice of draft permits. This
action also proposes these same revisions for COA designations in the
OCS program, permit rescissions under the federal PSD program, and
noticing of federal operating permits programs. In the case of permits
issued by the EPA or other agencies implementing 40 CFR parts 52 or 71,
we are proposing to require that the EPA provide e-notice for all draft
permits. For permits issued by other air agencies--specifically,
agencies that implement 40 CFR parts 51 or 70--we are proposing that
those permitting authorities would have the option to adopt either e-
notice or traditional newspaper notice; however, they must select one
of the noticing methods as their consistent noticing method to be used
to notice all of their draft permits and their rules must reflect this
selection.
    This proposed action also requires that, if the permitting
authority adopts the e-notice approach, it would also provide e-access
as described in this rule. Specifically, the agency would make the
draft permit available electronically for the duration of the public
comment period. Furthermore, this rule proposes specific minimum
requirements for satisfying the meaning of the terms ``e-notice'' and
``e-access.'' While e-access in this rule pertains only to the
availability and access to the draft permit, nothing in this rule
nullifies the requirement for the permitting authority to maintain a
record of the permit

decisions and to make it available to the public. Hence, a permitting
authority that is satisfying the proposed terms of e-access by posting
the draft permit on its Web site must also maintain the other materials
that support the permit decision and make them publicly available--
either electronically, or at a physical location, or a combination of
both. This proposed action does not affect any of the record retention
or CBI policies of agencies.
    More specifically, this proposed action includes revisions to 40
CFR part 51.166 (state/local PSD permits), part 52.21 (EPA/delegated
agency-issued PSD permits), part 70 (state/local/tribal operating
permits), part 71 (EPA/delegated agency-issued operating permits), part
55 (EPA-issued OCS permits and COA designations), and part 124 (EPA-
issued permits applying generally to a number of media programs,
including EPA-issued PSD and OCS permits). In addition, this action
proposes to add specific public notice provisions in 40 CFR 51.165 (for
state/local major NNSR permits), which currently does not contain
section-specific public notification requirements (except for PAL
permits).\13\ However, since the PSD program rules under 40 CFR 51.166
contain specific newspaper public notice provisions at Sec.
51.166(q)(2)(iii), for clarity and consistency purposes we are
proposing to add parallel noticing provisions to Sec.  51.165 to avoid
any possible confusion as to the methods for providing notice under
approved state and local NNSR programs.
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    \13\ While 40 CFR 51.165 does not currently contain specific
noticing provisions for draft major source permits, agencies
implementing Sec.  51.165 rely on the provisions of Sec.  51.161 for
the noticing of NNSR permits. As noted in this preamble, the EPA's
2012 Memorandum clarified that the terms used in Sec.  51.161 allow
for a media neutral approach to the noticing of permits, but the
memorandum only applies to minor NSR permits.
---------------------------------------------------------------------------

    It is important to note that some of the rule sections that we are
proposing to amend have existing noticing and access requirements that
are specific to the section and may not appear in other sections. We
are not proposing to alter these specific rule provisions in this
action. For example, the notice requirements in Sec.  51.166(q) relate
to the ``degree of increment consumption'' that is expected from the
source or modification, but these requirements are not in other
sections. Similarly, parts 70 and 71 have differing requirements for
what information the notice should identify. In the federal PSD and the
OCS permitting sections, there are currently no specific provisions for
permit noticing--nor are we proposing specific requirements through
this action--but these sections cross reference the procedural
requirements in part 124 for which amendments are being proposed in
this action. Consequently, the proposed rule revisions that would allow
for e-notice and e-access appear differently in each rule section, but
the basic effect of the changes is the same across all of the sections
being revised.\14\
---------------------------------------------------------------------------

    \14\ The docket for this action contains a document that
reflects how the proposed rule changes compare to the existing rule
provisions. See EPA-HQ-OAR-2015-0090-0002.
---------------------------------------------------------------------------

    In specifying that an agency electronically post the notice and
draft permit ``for the duration of the public comment period,'' we note
that there may be instances during the comment period when the Web site
is unavailable. This may occur due to, among other things, Web site
failures or power outages. While we expect that these situations would
be infrequent and short in duration, they would nonetheless temporarily
interrupt the noticing of the draft permit and the electronic posting
would be less than ``the duration of the comment period.'' We do not
interpret ``the duration of the comment period'' to be a requirement
for uninterrupted web access, but rather to mean that, to the extent
that interruptions to the accessibility of the posted notice and draft
permit occur, they would be short and infrequent. Further, we expect
that the permitting authority or webmaster would be in a good position
to make a reasonable assessment, based on experience, regarding unusual
interruptions that would significantly affect the noticing of the
permit. In general, we do not expect that short interruptions would
significantly affect the noticing of the permit, and we do not expect
these situations to result in a need for the comment period to be
extended to account for the time during which the Web site is
unavailable. On the other hand, for an agency that is providing only
electronic access to the permit record (i.e., no physical access
options), Web site interruptions could present larger problems for
anyone who is attempting to understand the draft permit and provide
timely comments. In such cases, the air agency should evaluate the
degree of limitation that the interruption has on the public's access
to the permit record. For any interruption that impacts public access
for an extended period, we recommend that the agency provide hard
copies of the permit record at appropriate locations. In addition to
taking comment on this proposed approach for the phrase ``for the
duration of the public comment period,'' we are soliciting comment on
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 while the Web site is unavailable.
    In addition to the proposed rule approach, we are taking comment on
an alternative approach for air agencies that implement 40 CFR parts 51
and 70 that would not require these agencies to couple e-notice with e-
access. In other words, if an agency adopts e-notice as its consistent
noticing method, it would not be required to provide e-access (although
the agency could provide e-access at its discretion--e.g., to
supplement its physical access of the draft permit). This alternative
approach may be of benefit to some agencies that notice permits using
an online permits register--which would qualify for e-notice--but do
not have the technical capabilities to satisfy the e-access requirement
of making the draft permit electronically available.
    These proposed rules provide flexibility to air agencies with EPA-
approved programs, such that they are no longer required to use
newspaper noticing, although they can continue to use the newspaper
method for noticing if they choose. In the case of EPA and other air
agencies that implement the federal permitting rules, we are proposing
that these programs are required to use e-notice and e-access, but
these terms are limited in scope to require only minimal electronic
noticing and access and to allow the agency the flexibility to use
either its own Web site or another publicly available Web site that it
identifies. We believe the proposed rule revisions, once final, will
lead to more effective noticing of air permitting actions and will
likely promote additional public participation in the permitting
process, while also avoiding the higher costs of newspaper
advertisement.

A. What are the e-notice requirements?

    For the purpose of this proposed rule, the term ``e-notice'' means
the notice of availability of the draft permitting action is provided
on the permitting agency's Web site or another public Web site
identified by the permitting agency for the purpose of noticing
permits. The Web site should be easily accessible by the public, and
the noticing section of the Web site should be ``user friendly''--i.e.,
organized in such a way that it directs the public to the entire notice
in a clear and straightforward manner. In some cases, the Web site may
be characterized as a ``portal'' or it can be some other publicly
accessible

Web site that is identified by the permitting authority and allows for
the noticing of draft permits (e.g., a state permits register).
    In some of the rule sections proposed for revision, the permitting
authority must maintain a mailing list that will be used to notify
persons on the list of any new public notice of a draft permit. This
requirement exists in part 124 for EPA-issued PSD and OCS permits and
in parts 70 and 71 for title V permits. We are proposing that the
mailing list requirement would continue to apply for the noticing of
these permits, and we are proposing that the mailing list requirement
would not apply to programs that currently do not have a mailing list
requirement--namely, agencies that follow part 51 regulations for PSD
and NNSR permits and for state-issued OCS permits. Although the mailing
list provisions were originally created with the idea that authorities
would use the postal service to physically convey the notice to the
recipients on the list, it has evolved over time such that many
agencies that maintain a mailing list use electronic notification
rather than mailing the notice through the postal service. In general,
email notification has become a common practice among air agencies that
currently provide supplemental notice via their agency Web site.
Furthermore, many of these agencies' Web sites are equipped with a
hyperlink or a radio button that facilitates convenient and easy sign
up for interested persons to subscribe to the mailing list. Thus, we
are not changing the current rule sections that require mailing lists,
but we are updating the provisions to also allow agencies to use
electronic methods to administer the activities of the mailing list, to
include subscribing to the list, maintaining the list, and distributing
the required information to the parties on the list. We expect that
some agencies may use both electronic methods and more traditional
methods (e.g., a mailing list sign-up sheet posted at a public hearing)
to administer their permits mailing lists.
    Part 71.11(d)(3) currently requires the EPA and delegated agencies
to affirmatively solicit for their mailing lists. As part of this
proposed rulemaking, we are proposing revised language for part 71 to
explain that the permitting authority will notify the public via Web
site of the opportunity to be included or removed from its mailing
list. We expect that many agencies will add a generally accepted method
(e.g., hyperlink sign up function, radio button) to their Web sites
that will facilitate easy and convenient sign-up for their mailing
list, as well as methods for unsubscribing. As noted above, many air
agencies maintain a Web site that currently supplements the newspaper
noticing of their permits with online noticing of their permits.
Furthermore, some of these agencies rely on a variety of methods,
beyond mailing lists, to alert the affected community that their Web
site has been updated with a new draft permit or new information about
a permit. Though not required under this proposed rule, we encourage
air agencies to continue the practice of providing appropriate
additional outreach to the general public for permits of interest.
These outreach efforts may consist of opportunities presented by social
media services (e.g., RSS feed, Twitter, Facebook) where appropriate,
or more traditional techniques such as online community bulletin boards
or community newspapers. We are proposing that use of these additional
outreach methods is not required, but is discretionary for the
permitting authority.
    Also, it is important to reiterate that we are not proposing to
alter any existing requirements regarding the content of the public
notice. We are, however, expressly requiring that the 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. 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.
Most notices of availability will contain, at a minimum, the permit
number, name and physical address of the facility, and the name and
contact information of a person from whom interested persons may obtain
additional information on the draft permit.
    We request comment on this approach to defining e-notice as it
applies to this proposed rule. In particular, we request comment on
whether this approach and the corresponding rule text preclude some
forms of electronic noticing that are currently being used or under
development.
    To clarify what this action is proposing for e-notice, in the
following section we provide a summary of the proposed rule
requirements. In addition, we are providing recommended ``best
practices'' for electronic notice. These best practices recommendations
are intended to foster improved communication and outreach of permit
notices beyond the minimum requirements being proposed in this action.
1. Proposed Regulatory Requirements for E-Notice
    In order to satisfy the requirement for e-notice of a permit, the
permitting authority shall electronically post, for the duration of the
public comment period, the following information on a public 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 permitting activity and shall distribute
(e.g., by email) the above information to these persons.
2. Recommended Best Practices for E-Notice
    While not proposed as a requirement of this rule, the EPA is
recommending best practices that can be used to augment the above
requirements for electronic notice. These best practice methods are not
required to satisfy the e-notice requirements for this proposed rule,
but may be helpful in the course of providing the fullest communication
to the public on permitting actions. The recommended best practices of
e-notice include:
     Providing notice of the final permit issuance on the Web
site.
     Soliciting actively for the mailing list on the Web site
(e.g., Web site equipped with radio button, hyperlink, or ``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 can request notification of only draft permit notices for major
source actions, rather than receiving notice of all permitting activity
by the agency).

B. What are the e-access requirements?

    For the purpose of this proposed rule, the term ``e-access'' means
the permitting authority shall post on its Web site (or a Web site
identified by the permitting authority) the draft permit for the
duration of the public comment period. As with e-notice, the posting of
the draft permit should be in a prominent location on the Web site, and
the Web site should allow user-friendly

access to the draft permit. Access to all other relevant materials that
represent the record for the permit shall also be available to the
public during the public comment period, but these other materials can
be accessible either electronically or at a physical location, or in
both locations. In this action, we are proposing that if the permitting
authority provides e-notice, then it must also provide e-access.
    In defining the requirements for e-access and authorizing the use
of e-access for major source permits that are undergoing public notice,
we are proposing to add new paragraphs to certain program rules and
specifically revise other program rules that have draft permit access
requirements containing language that could be read to suggest that
access requirements could not be met through electronic availability of
the permit materials. See, e.g., 40 CFR 51.166(q)(2)(ii),
55.5(f)(1)(i). These revised rule paragraphs would expressly allow for
electronic availability of permit documents.
    As noted above, nothing in this proposed rule affects the
requirement for an agency to maintain a record to support the decisions
of the permitting actions and to make it available to the public.
Furthermore, nothing in this proposed rule affects the record retention
policies and requirements of governmental agencies that provide
schedules for retention and disposal of paper and electronic records.
Finally, the electronic posting of draft and final permits, including
information supporting the permit decisions (e.g., permit
applications), would be subject to the applicable CBI policies and
requirements of the air agency and, consequently, some permit-related
documents may be redacted or otherwise withheld from viewing on a Web
site or public reading room if it is determined that the document
contains CBI.
    We request comment on this approach to defining e-access as it
applies to this proposed rule. In particular, we request comment on
whether this approach and the corresponding regulatory text preclude
some forms of electronic access that are currently being used or under
development. Also, as noted above, we are requesting comment on an
alternative proposal that does not require air agencies with EPA-
approved programs to electronically post the draft permit (i.e., e-
access) if they choose e-notice as their consistent noticing method.
    To clarify what this action is proposing for e-access, in the
following section we provide a summary of the proposed rule
requirements. As we provided in the preceding section on e-notice, we
are also sharing what we consider to be recommended best practices for
electronic access.
1. Proposed Regulatory Requirements for E-Access
    In order to satisfy the requirement for electronic access, the
permitting authority shall electronically post, for the duration of the
public comment period, the draft permit on a public 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. The draft permit file should be in a format
that can be opened and viewed by the public using commonly accepted
computer software (e.g., portable document format that can be opened
with Adobe Acrobat Reader). We request comment on whether our rules
should require that the electronic format of the draft permit be
viewable by software that is ``free'' (i.e., available without charge)
to the user.
    The Federal Docket Management System (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
http://www.regulations.gov 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
agencies to provide digital access to permits and other records.
2. Recommended Best Practices for E-Access
    While not proposed as a requirement of this rule, the EPA is
recommending best practices that can be used to augment the above
requirement for electronic access. These best practice methods are not
required to satisfy the e-access provision for this proposed rule, but
may be helpful in the course of providing the fullest communication to
the public on permitting actions. The recommended best practices of e-
access include:
     Continued posting of the draft permit on the Web site past
the public comment period (e.g., until 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 specified
period of time after issuance of the permit (e.g., through the permit
appeal period or petition period).
     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., FDMS), such as the permit application,
Statement of Basis, fact sheet, preliminary determination, final
determination, and response to comments.\15\
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    \15\ While the EPA believes it is a best practice to
electronically post as many of the key permit decision 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 or how to request access to them.
---------------------------------------------------------------------------

C. Requirements for Agencies Implementing the Federal Permit Program
Rules

    For programs in which the permits are issued by the EPA or by an
air agency that implements the EPA's federal permitting rules (i.e., 40
CFR parts 52, 55, 71 or 124), the EPA is proposing specific changes to
the public notice and permit access methods. We are proposing to remove
the mandatory newspaper notice requirement and mandatory access to the
permit information at a physical address, and to replace these
requirements with mandatory e-notice and mandatory e-access, as those
terms are outlined in this rule, as the consistent noticing method for
major source permits issued under the federal rules for NSR and title
V, and for all EPA-issued OCS permits.\16\ While each of these programs
currently has specific rule provisions for noticing that may be worded
differently depending on the program, we are proposing to replace the
existing rule provisions with consistently worded provisions that
describe the requirements for mandatory e-notice and e-access.
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    \16\ OCS permits issued by delegated agencies should use the
approved public notice requirements of the delegated agency. 40 CFR
55.11.
---------------------------------------------------------------------------

    As noted in the above sections of this preamble, if an agency is
satisfying the requirements of e-notice and e-access, the permitting
authority would retain the discretion to supplement the e-notice with
any other noticing method (e.g., newspaper publication, announcement
through social media) depending on the specific circumstances of the
permit application, such as the location of the proposed project and
the accessibility of

information sources by the affected community and other stakeholders.
Moreover, the EPA recommends that agencies supplement their Web site
postings with notices in newspapers and other forms of print media when
noticing draft permits for facilities that are in areas where the
agency believes such print media may enhance noticing efforts for
certain audiences among the interested public. The EPA specifically
encourages agency practices that consider the input and special needs
(such as social, economic and geographic factors at the location) of
the particular communities that may be affected by a permit action in
order to provide public notice by methods that would better reach
particular communities.\17\ Thus, we are not proposing to require that
the permitting agency provide additional noticing methods beyond e-
notice. At the same time, nothing in the proposed rule revisions
prevents the permitting agency from also providing additional notice by
a method other than e-notice.
---------------------------------------------------------------------------

    \17\ For example, an agency may determine that a permitting
action may potentially impact a community that has a large
population with limited English proficiency and could decide that it
is prudent to provide multilingual notices of the draft permit to
reach the affected community. See http://www.epa.gov/ocr/limited-english-proficiency and http://www.lep.gov/.
---------------------------------------------------------------------------

    With respect to title V in particular, the rule revisions include
additional changes in order to support the movement to e-notice.
Currently, the title V regulations in part 71 include the use of a
mailing list for public notice purposes. This proposal includes
regulatory revisions to amend the EPA's solicitation obligations
associated with the mailing list, but it otherwise keeps the mailing
list in place. The EPA interprets its rules, and understands that many
air agencies do as well, to allow for the mailing list to be maintained
in an electronic format. Further, the EPA recognizes that many air
agencies also maintain their part 70 mailing lists in an electronic
format and that such a format is generally supported by stakeholders as
well. See, e.g., Clean Air Act Advisory Committee (CAAAC) Task Force
Report at 202, 206-207.\18\ With respect to the EPA's mailing list
obligations for the federal program, we are proposing to remove the
specific language within 40 CFR 71.11(d)(3)(E) and 71.27(d)(3)(E) that
requires the EPA to solicit mailing list membership through ``area
lists'' and ``periodic publication in the public press.''
---------------------------------------------------------------------------

    \18\ In 2006, a task force assembled by the EPA finalized a
document titled, ``Final Report to the Clean Air Act Advisory
Committee: Title V Implementation Experience.'' This document was
the result of the task force's efforts to report on the
implementation performance of the operating permit program under
title V of the 1990 Clean Air Act Amendments, based on the first 10
years of experience. The final report to the CAAAC, dated April
2006, can be found at http://www3.epa.gov/airquality/permits/taskforcedocs/200604_report.pdf.
---------------------------------------------------------------------------

    Similar changes are proposed for 40 CFR part 124, which are
``general program requirements'' that apply to federally-issued PSD and
OCS permits, as well as permits issued for other media programs. 40 CFR
52.21(q), 40 CFR 55.6(a)(3). Due to the existing language in part 124
covering a number of permit programs other than air permitting, the EPA
is proposing minor revisions to part 124 in order to maintain the
current provisions for the other permit programs and to specifically
clarify public notice requirements associated with EPA-issued PSD
permits (and PSD permits issued by any program that implements 40 CFR
52.21). In this action, we are proposing to establish a new paragraph
within paragraph 124.10(c)(2) that applies exclusively to PSD permits
(and OCS permits, which use the PSD provisions) with clearly identified
public notice requirements that will require e-notice rather than
newspaper notice. The part 124 provisions would continue to require the
agency to solicit the public to be added to a mailing list and to
provide specific notifications (e.g., state, local governments,
resource agencies). However, the proposed new provision would allow
that in lieu of the existing requirement in part 124 regarding
soliciting persons for ``area lists'' and notifying the public of the
opportunity to be on a mailing list, the agency may use generally
accepted methods (e.g., hyperlink sign up function or radio button on
agency Web site, sign-up sheet at public hearing) that enable
interested parties to subscribe to the mailing list.
    The OCS regulations specify that EPA will use the applicable
administrative and procedural requirements in 40 CFR part 124 and the
federal title V rules (part 71 is incorporated by reference), and that
the Administrator will follow the procedures used to issue PSD permits
when using 40 CFR part 124. 40 CFR 55.6(a)(3), 40 CFR 55.13(f), 40 CFR
55.14(c)(5). Hence, as e-notice flexibility is added to parts 71 and
124, it will be incorporated by reference into the OCS regulations for
EPA-issued OCS permits. In addition, specific language referencing the
administrative procedures of 40 CFR 71 is proposed to be added to the
Administrative Procedures and Public Participation requirements
provisions of the OCS regulations to clarify that EPA may use either
the applicable administrative procedures of 40 CFR 71 or 40 CFR 124
when issuing OCS permits.
    We note that some air programs with EPA-approved plans for
implementing the PSD program incorporate by reference the federal rule
provisions--e.g., 40 CFR part 52.21. Furthermore, some of these program
rules automatically update whenever the EPA revises its rules and the
revisions become effective. These agencies would not have the option to
continue with newspaper notice as their noticing method (unless they
revise their rules and undertake a SIP revision to remove the
referencing of the federal rules). These agencies would be required to
provide e-notice and e-access according to this rule. This same
scenario would apply to programs that are delegated by the EPA to
implement 40 CFR 52.21 and issue PSD permits on behalf of the EPA. We
specifically solicit comment on whether any air program that
incorporates by reference the federal permitting rules would have
difficulty meeting the e-notice and e-access requirements of this
proposed rule if the revisions become effective immediately upon
finalizing the rule. We also solicit suggestions for addressing such
difficulties.
    In addition, we are proposing to delete a superfluous provision
from 40 CFR 52.21(q) ``Public participation.'' The second sentence
reads ``[t]he Administrator shall follow the procedures at 40 CFR
52.21(r) as in effect on June 19, 1979, to the extent that the
procedures of 40 CFR part 124 do not apply.'' The preamble to the 1980
NSR rules explained the transition from the previous regulations to the
consolidated permitting regulations at part 124: ``. . . the procedures
of the 1978 Part 52 regulations continue to apply to the extent that
the new procedures have not yet displaced them. In time, the new
procedures will displace the old ones entirely.'' See 45 FR 52686,
August 7, 1980. Since the procedures of 40 CFR 124 have displaced the
old procedures, this sentence is no longer necessary.
    We solicit comment on this ``mandatory e-notice and e-access''
approach for permit programs implemented by the EPA and by other
agencies implementing the federal air permitting rules.

D. Requirements for Agencies Implementing Approved Programs Pursuant to
the EPA's Permitting Rules for States

    For the noticing of major source permits issued pursuant to EPA-
approved air agency programs under 40 CFR part 51 or 70, we are
proposing to

remove the mandatory newspaper notice requirement and provide these
agencies with the option to select either e-notice or newspaper notice.
A required element of these programs is to provide adequate notice and
informed public participation, and this program element is not
changing. However, a key aspect of this proposed approach is that the
agency would be required to adopt one noticing method--known as the
``consistent noticing method''--to be used for all of its notices.
Thus, if an agency selects e-notice, it must provide e-notice for all
of its draft permit notices. If a consistent noticing approach is not
adhered to (i.e., if the agency posted some notices to its Web site and
others in the newspaper), it could lead to confusion for the public,
who may not know where to look for permitting information regarding a
source proposing to locate in the community. Accordingly, if the agency
elects e-notice as its consistent noticing method (and e-notice is not
available in its approved SIP), it must implement its choice of
noticing method through a change in its program rules. As discussed
later in this preamble, we are requesting comment on whether there are
air agencies that believe they can implement e-notice and e-access in
lieu of newspaper notice without contravening their state rules.
    As with the proposed mandatory requirements for e-notice for the
federal programs, if the e-notice option is chosen as the consistent
noticing method for a particular state program, the state must use e-
notice to provide the information required under existing public
notification regulations and must provide e-access to the draft permit.
All other permit documents required under existing regulations can be
accessible either electronically or physically (i.e., in a designated
reading room). However, if the agency chooses newspaper notice as the
consistent noticing method, then the agency can either provide
electronic access or physical access (or both) to the additional
materials that existing regulations require be made publicly available.
    We are aware that many states already have Web sites that are
actively used for permitting purposes--e.g., permit application
instructions, form downloads, online permit applications. Consequently,
we anticipate that most of these state agencies will opt for the e-
notice approach, since it may mirror what they are already doing to
supplement their newspaper notice. For these agencies, we believe this
change would be minimally burdensome and would relieve them of the
additional burden of providing newspaper notice. At the same time, we
recognize that some air agencies do not have an established Web site,
or they may have a Web site but they would need to invest in
significant infrastructure to increase their Web site capability in
order to accommodate the posting of permit information that existing
regulations require be included in a newspaper notice. These agencies
may opt to continue with the newspaper notice as their consistent
noticing method.
    With regard to part 70, the proposed revisions would affect only
the mandatory newspaper language, and would not change any other
obligations such as the requirement to have or maintain a mailing list.
The EPA interprets the existing mailing list obligations to include
either electronic or hardcopy mailing list, or both, at the reasonable
discretion of the air agency.
    Furthermore, nothing in these proposed revisions to parts 51 and 70
prevents the air agency from also providing public notice through other
methods including, but not limited to, a newspaper notice. As with our
proposal for noticing of permitting actions under the federal rules,
under this proposed option, agencies would have the discretion to
provide public notice through other methods--in addition to their
consistent noticing method--if a particular permit action warrants it
and ensure that the notice of the draft permit reaches the affected
community and stakeholders. We encourage all air agencies to consider
facility- and permit-specific facts in determining the appropriate
methods of public notice, such as expected public interest, location
and type of source being permitted, environmental justice
considerations, including the language that will be understood by the
affected community.
    To summarize, we propose that for air agencies that implement 40
CFR part 51 or 70, for the noticing of their major source draft
permits, they either provide: (1) Mandatory e-notice and e-access, as
these terms are used in the context of this proposed rule, or (2)
newspaper notice with either electronic access (e.g., Web site) and/or
physical access (e.g., reading room) to the draft permit. In choosing
(1) or (2), they must use a consistent method of noticing. These air
agencies can continue to supplement the consistent noticing method with
other noticing methods at their discretion or as currently required
under part 70. We specifically request comment on this approach for
EPA-approved NSR and title V permit programs to establish either ``e-
notice'' or newspaper notice as the single, consistent noticing method.
    As noted above, since many air agencies with EPA approved programs
currently have a Web site and notice draft permits and provide permit
documents on their Web sites, we do not believe that the e-notice
requirement would impose any additional burden on most agencies. We are
specifically seeking comment on whether (and how significantly) this
rule imposes additional burden on air agencies that already provide
postings of permits on their Web sites and those air agencies that do
not already use a Web site for permit postings.
    Finally, the EPA is requesting comment on two alternative
approaches to the ones being proposed in this rule and described above,
one for providing notice and the other for providing access. In the
first alternative approach, an agency implementing rules pursuant to
either part 51 or 70 would not be required to choose a consistent
noticing method. Thus, the agency could potentially provide one
noticing method for some permits (or some types of permits) and another
noticing method for other permits. This approach is analogous to the
``media neutral'' approach that is available under Sec.  51.161 for the
noticing of minor NSR permits, as well as the approach adopted in the
Tribal NSR Rule. See 40 CFR 49.157(b)(1). Neither of these other
program rules requires a consistent noticing method. Thus, under such
an approach for this rule, we would amend the part 51 and 70 rules that
currently require ``newspaper'' notice to require use of Web site or
newspaper notice, but without specifying a consistent noticing method.
Alternatively, to provide additional flexibility to the agency, we
could simply require that they provide notice via ``a method reasonably
likely to provide routine and ready access to the public'' without
imposing any more specific requirements. The EPA requests comment on
whether to allow such an approach, how likely it is that this approach
could lead to confusion (e.g., if the permitting agency regularly or
frequently changed its noticing method from one permitting action to
another), and whether EPA should require the permitting agency to
specify the circumstances under which it will use a particular method
or articulate criteria for doing so. The EPA also requests comment on
whether it is reasonable to assume that permitting authorities would
try to avoid such problems because each agency is ultimately
responsible to ensure that it provides adequate notice on each of its
permits and access to the permit information. In

other words, does the suggested requirement for the agency to notice
via ``a method reasonably likely to provide routine and ready access to
the public,'' in and of itself ensure that some level of noticing
consistency is achieved?
    The EPA also requests comments on a second alternative approach to
providing access, under which e-notice would not need to be coupled
with e-access for state agency programs implementing approved rules
pursuant to parts 51 and 70. This may help some states that notice
permits using an online permits register (which would qualify for e-
notice), but where the state may not have its own Web site to satisfy
the ``e-access'' requirement of making the draft permit available
electronically. As noted elsewhere in this preamble, the state would
still be required to provide access to the draft permit, as well as any
other documents that are part of the permit record.

E. Soliciting Comment on Allowing Temporary Use of Alternative Noticing
Methods

    We are requesting comments on adding a provision to each of the
program rules that would allow an agency that is relying on e-notice
(and/or e-access) to temporarily use another noticing medium for a
reasonable period of time during which its Web site is unavailable.
This may be necessary during planned Web site outages (e.g., a
transition to a different Web site platform) or unforeseen
circumstances, such as Web site malfunctions or emergency situations
(e.g., hurricanes) that result in prolonged electrical system outages.
We do not believe this same problem existed under the current
regulations that require newspaper notice. This is based on the
assumption that, in the event that a problem occurs with a newspaper
that the agency plans to use, the agency can notice the permit in
another newspaper in the area that it determines would provide adequate
notice.
    If an alternative noticing method is used, it would need to be
publicly announced in some way before they occur, so that the public
has reasonable notice of where to look for permit notices during such
outages. It would also need to assure adequate notice to the affected
public. Noticing either in the newspaper or State Register could be an
agency's alternative noticing method, since each method is generally
presumed to provide adequate notice to the public.
    Given the broad range of situations that could lead to problems
with a Web site, it may be difficult to specify the limits of the
duration of the ``temporary'' period. We expect that most agencies
would generally have an incentive to restore operations to their Web
site as soon as possible for cost purposes and to ensure that they
continue to provide the most effective notice of their permitting
actions. We request comment as to whether providing specific boundaries
around the use of the alternative noticing method should be required,
and how those boundaries should be established and what criteria should
be used to judge their adequacy. We specifically seek comment on the
appropriate criteria for invoking the alternative noticing method, the
length of time it could be used, and how the transition to the
alternative method would be conveyed to the public.

F. Clarifying E-Notice and E-Access Applicability for Minor NSR Permits

    As noted earlier in this preamble, this rule proposal is not
revising any regulatory requirements for minor NSR permits. Notably,
this rule proposal is not revising the requirement for ``notice by
prominent advertisement'' in 40 CFR 51.161(b)(3), because the prominent
advertisement term, as discussed in the EPA's 2012 Memorandum, is
sufficiently broad to allow for e-notice. However, while we are
reaffirming the guidance provided in the EPA's 2012 Memorandum, we are
proposing to amplify its policy guidance in two respects.
    This rule is proposing to clarify that the EPA's 2012 Memorandum's
interpretation of ``prominent advertisement'' in paragraph 51.161(b)(3)
as ``media neutral'' also applies to paragraph 51.161(b)(1). The
provision currently reads: ``[a]vailability 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.'' Thus, paragraph 51.161(b)(1) does not
expressly require that permitting information be made available in the
form of paper records, and we are proposing to clarify that it allow
for electronic access to the permitting information. More specifically,
we are proposing that allowing electronic access to the information
submitted by the owner or operator and to the agency's analysis of the
effect on air quality by way of a Web site identified by the permitting
authority would satisfy the requirement of ``availability for public
inspection in at least one location in the area affected . . .'' We
believe this approach is consistent with the memorandum with respect to
allowing use of electronic and other methods to provide notice of minor
NSR actions, and it is reasonable for the same reasons discussed in
this preamble for allowing electronic access to permit documents for
major source permits. We specifically request comment on this
clarification for the minor NSR program rules.
    In addition, in issuing the EPA's 2012 Memorandum, the EPA
indicated that our guidance on the meaning of the term ``prominent
advertisement'' in 40 CFR part 51.161(b)(3) applies only to minor
sources and not to synthetic minor sources. See Footnote 1. Given the
statement in the memorandum, which raises uncertainty about the
flexibility to use media neutral methods for synthetic minor programs,
the EPA has now determined that it is not appropriate to exclude
synthetic minor permits in this regard, and that this action should
propose to clarify that the limitation established in the footnote is
no longer appropriate. In this action, we are proposing to treat minor
and synthetic minor sources identically in this regard by extending the
EPA's media neutrality policy to synthetic minor sources. In addition,
we propose to extend this policy to any permit action that relies on
the public notice requirements of Sec.  51.161.
    We seek comment on these two proposed revisions to the policy
guidance provided by the EPA's 2012 Memorandum. Through the preamble to
the final rule for this action, we intend to provide amplifying
guidance with regard to the EPA's noticing policies for permits subject
to 40 CFR 51.161.

G. Notice Requirements for PSD Permit Rescissions

    In addition to the existing mandatory newspaper notice required for
draft permits, part 71 permits programs and COA designations, the
permitting program rules contain another regulatory provision that
provides for newspaper notification. In the federal PSD regulations, a
provision titled ``permit rescission'' requires that ``[i]f the
Administrator rescinds a permit under this paragraph, the public shall
be given adequate notice of the rescission'' and that notice ``in a
newspaper of general circulation in the affected region . . .'' is
considered adequate. 40 CFR 52.21(w)(4). While this language does not
foreclose the notion that another type of noticing method could also be
``adequate,'' we are proposing to revise the rule provision to
specifically require that the permitting authority notify the public of
a permit rescission electronically--i.e., on a Web site identified by
the permitting authority. This ``mandatory e-notice'' approach for

permit rescissions under 40 CFR 52.21(w) is consistent with our
approach for the noticing of other actions that implement the federal
program rules. We specifically request comment on whether this is an
appropriate approach for the noticing of a permit rescission.

V. Policy Rationale and Legal Basis

    This proposal to revise these CFRs to allow permitting authorities
to provide public notice of permits and other actions on a publicly
available Web site in lieu of the newspaper publication requirement,
when final and effective, would reduce burden to all air agencies. In
addition, the proposed requirements are consistent with practices some
permitting agencies currently follow to supplement existing
requirements for noticing permits, and they would provide flexibility
for agencies to use the noticing methods that they determine are
appropriate, reasonable and effective without the need for newspaper
notice. These proposed changes are consistent with the approaches taken
in EPA's permitting rule for Indian country and in EPA's minor NSR
regulations, and with broad stakeholder input regarding more effective
advertisement of permitting actions.
    As noted earlier in this preamble, Internet Web sites have become
an increasingly effective and widely employed avenue for broadly
disseminating information to the public and many agencies currently
supplement the required newspaper publication by posting draft and
final permits on their agency Web sites. Since the Internet is
generally available at all times, it allows for the noticing of a
permit, and for the information that supports the permit, to be
available and accessible over a longer period of time, rather than a
one-day newspaper publication of the notice. As noted above, most
states are already using the Internet (to varying degrees) for noticing
permitting actions, so we do not anticipate many agencies having to
spend a lot of time or funding on upgrading their existing Web sites to
meet the proposed requirements. For agencies currently without a Web
site for noticing permits and hearings, the use of e-notice and other
applicable alternatives may allow the permitting authority to redirect
funds that were being used for newspaper publication in order to
establish and maintain a Web site where permit information could be
posted. Thus, the EPA anticipates these proposed rule revisions, when
finalized, would result in more effective dissemination of permitting
and hearing information to the surrounding communities (including the
underserved and environmental justice (EJ) communities) and possibly
substantial cost savings for both the EPA and for state and local
program permitting authorities.
    We believe these proposed requirements are consistent with CAA
goals of providing public notice and promoting access to information in
permitting, and they would enhance the permitting process. With respect
to preconstruction permit actions, CAA Sec.  160(1) establishes a
statutory policy of providing for informed public participation in the
permitting process, and CAA Sec.  165(a)(2) precludes issuing a PSD
permit without an opportunity for the public to review the decision and
submit comments. These proposed revisions enable the use of e-notice
and e-access for both EPA-issued and other agency-issued permits and
further the statutory policies these provisions establish. With respect
to operating permits, the 1990 CAA Amendments require that the EPA
rules for permitting programs provide ``adequate, streamlined and
reasonable procedures'' including an opportunity for the general public
to have informed participation in the air permitting process in the
areas affected by a proposed permit. CAA Sec.  502(b)(6). Also, Sec.
502(b)(8) provides that procedures to make information available should
be consistent with the need for expeditious action on permit
applications or related matters. The proposed revisions, which enable
the use of e-notice for both EPA-issued and other agency-issued
permits, would improve implementation of the statutory policy of
ensuring public notice of title V permits by providing more effective
noticing procedures in affected areas across the country.
    Another basis for, and benefit from, the proposed action would come
from the cost savings associated with the move to electronic
notification instead of legal notice advertisements in newspapers. The
EPA's annual costs for publishing notices in newspapers is a
significant annual expenditure, and it is the EPA's understanding that
the newspaper publication for noticing permits has become costly for
states as well. The EPA's proposal intends to reduce those costs by
allowing the permitting authority to notice draft permits using a
publicly available Web site in lieu of newspaper publication. While e-
notice may pose a burden for certain states that do not already have a
permitting Web site, the EPA is not mandating that permitting
authorities that implement 40 CFR part 51 or 70 adopt the e-notice and
e-access approaches, so these agencies can continue with the current
program of newspaper publication if they prefer. In addition,
permitting authorities that incorporate by reference the federal PSD
rules at 40 CFR 52.21 that wish to continue to use newspaper notice as
their primary method of notice can undertake a SIP revision to remove
the reference to the federal provisions and adopt their own noticing
rules that conform to Sec.  51.166.
    As an example of the approximate costs for publishing permit and
hearing notices in the newspaper, in Fiscal Year 2013, the EPA Regions
incurred a cost of over $40,000 to publish newspaper notices for NSR,
title V and OCS permits. In Fiscal Year 2014, newspaper notice for the
EPA regional permits exceeded $35,000. Newspaper publication costs vary
widely depending on a number of factors, but for most permits the cost
to notice averages between $600 and $1,000 per notice. While these
costs vary on a yearly basis in each EPA Region, the overall annual
costs are significant for the EPA. Moreover, given that state and local
air agencies generally process more air permits than the EPA, it is
reasonable to expect that the annual costs incurred for newspaper
publication by state and local permitting agencies exceed the annual
costs incurred by the EPA. (We note, however, that some air agencies
require that the applicant bear the cost of newspaper publication.)
    While we recognize that there is a cost associated with developing
and maintaining an agency Web site for the purpose of noticing permits,
the incremental cost to upload permit notices is expected to be very
low, and we expect the overall burden would be less than that of the
existing rules that mandate newspaper publication. This is because most
agencies already have their own Web sites (or some other means to
electronically notice draft permits and hearings) and they will
continue to have their Web sites regardless of the requirements that
are being proposed by this action. Thus, even though the costs of
creating, upgrading and maintaining a Web site and providing web
security may very well be many times higher than the cost of an
agency's annual newspaper notice, states are choosing to continue to
have a Web site due to the convenience of noticing and the ability to
level out the overall costs of the Web site across all of the program
areas of the agency. Furthermore, for agencies that already do web
postings and posting of the draft permit, the newspaper requirement is
duplicative and consequently the

removal of the requirement would result in savings. The EPA
specifically seeks comments on the potential cost savings, and the
possibility of increased burden, from the specific noticing
requirements in this rule proposal.
    A broad range of stakeholders has identified e-notice as a more
efficient, more prominent, less costly and more cost-effective, and
more reasonable approach to public notice of permitting actions, as
compared to newspaper notice. For example, e-notice is responsive to
recommendations from the CAAAC's Title V Task Force Report, which
includes a number of recommendations for implementation improvements,
such as public notice. Importantly, task force members agreed
unanimously on two recommendations related to the means of providing
public notice. First, task force members recommended that state program
rules should be allowed to include alternatives to newspaper
notification, provided the alternative is more effective in informing a
cross section of the affected public. (A remaining concern mentioned
was that members of the public may lack routine access to the
Internet.) See Recommendation #1 at 210. Second, task force members
agreed that states should improve their title V Web sites to provide
better notice and access to relevant documents in a permit proceeding.
Accordingly, the Final Report recommended that the EPA should encourage
permitting authorities to provide the option to receive notification by
email instead of traditional mail, and to maintain their Web sites with
information, documents, and dates helpful for public participation,
including how to sign up to be included on a mailing list. See
Recommendation #3 at 210. While these recommendations were focused on
permitting under title V, the EPA believes that the same concepts and
concerns would also apply to NSR and OCS permits.
    As noted in the previous sections, providing e-notice is consistent
with noticing requirements of the EPA's Tribal NSR Rule issued in 2011
and with the EPA's 2012 Memorandum that clarified the term ``prominent
advertisement'' is media neutral for the minor NSR program. This action
also supports Executive Orders 13563 and 13610 (issued in 2011 and
2012, respectively), which direct the Agency to modernize its rules
periodically in order to achieve regulatory objectives more
effectively, considering the agency resources and priorities.

VI. Implementation

A. Agencies Implementing Federal Preconstruction Permit Program Rules

    Once this rule becomes final, it will become effective within 30
days for air permitting programs that implement the federal program
rules at 40 CFR parts 52, 55 and 124. This includes EPA Regions, air
agencies that are delegated authority by the EPA to issue permits on
behalf of the EPA (via a delegation agreement), and air agencies that
have their own rules approved by EPA in a SIP and the SIP incorporates
by reference the federal program rules and automatically updates when
EPA's rules are amended. Under this rule proposal, these programs would
be required to implement e-notice and e-access, with the exception of
states that are delegated authority to issue permits under part 55 (as
described earlier in this preamble).
    While we expect that most programs that implement the federal
permitting rules are in a position to comply with the proposed
requirements for e-notice and e-access once this rule is finalized,
some programs may need more time. More time may be necessary if, for
example, a delegated air program needs to upgrade or improve its Web
site to allow for e-notice and/or e-access. We request comment on
whether any air programs that would be required to immediately
implement 40 CFR 52.21 would need a ``phase in'' period, beyond the 30
days, in order to implement e-notice and e-access.

B. Agencies Implementing State Preconstruction Permit Program Rules

    For an air agency with an approved SIP that implements 40 CFR part
51 and that chooses e-notice and e-access as its consistent noticing
method, it may need to revise its applicable program rules and seek the
EPA's approval of a SIP revision in order to begin to implement e-
notice in lieu of newspaper notice. (However, NNSR programs under Sec.
51.165 are subject to the public participation requirements at Sec.
51.161 and may be able to interpret their state rules and SIP to
currently allow for implementing e-notice in lieu of newspaper notice.)
Similarly, for an agency that implements rules that incorporate by
reference our federal program regulations (40 CFR 52), and if its rules
do not automatically update upon the EPA amending its federal rules, it
may need to amend its regulations and seek the EPA's approval of a SIP
revision in order to implement e-notice and e-access in lieu of
newspaper notice.
    Under this proposed rule it is voluntary for these programs to move
to e-notice and e-access, and we are not proposing to impose a deadline
for submission of SIP revisions for those programs that are choosing to
adopt e-notice and e-access instead of newspaper notice. Furthermore,
nothing in the current or proposed 40 CFR part 51 rules prevents an
agency from beginning to implement e-notice and e-access methods once
the agency is ready, but depending on the air agency's rules there may
be ongoing obligations to continue with newspaper notices until the
agency revises its rules. We request comment on whether agencies
believe they have the ability to implement e-notice and e-access in
lieu of newspaper notice without amending their state rules.

C. Agencies Implementing Approved Operating Permit Programs

    Consistent with title V and the part 70 regulations for initial
program submittals, approved part 70 programs must provide for
implementation of 40 CFR 70.7, including subsection ``h'' which sets
forth the public participation obligations including ``adequate
procedures for public notice.'' See, e.g., 40 CFR 70.4(b)(16). A
program revision may be necessary when the relevant federal regulations
are modified or supplemented. 40 CFR 70.4(i). When part 70 is revised
after the air agency program is approved, the EPA determines the need
for conforming revisions, but the approved program may initiate a
program revision on its own initiative. See, e.g., 40 CFR 70.4(a) and
(i). Under the proposed rulemaking, air agencies 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 an air agency
chooses that approach and a program revision is necessary (e.g.,
additional authority is needed), then the agency should initiate a
program revision by undergoing a rule change and submitting a program
revision package to the EPA for review and approval consistent with
Sec.  70.4(i)(2).
    As previously noted in this preamble, this proposal would not
change the requirement to provide ``adequate procedures for public
notice.'' Consequently, we believe that a program revision will not
necessarily be required for all approved programs and that certain
agency programs could implement e-notice and e-access upon approval of
the rules at the state level. We propose that, for an agency that needs
only to revise the agency program rules to clarify its implementation
of e-notice and e-access but does not otherwise require a program
change because the current program practice

includes electronic posting of public notices and the draft permit and
has adequate authority and resources for maintaining the practice, that
such agency does not need a program revision for implementing the
revised part 70 notice requirements. We request comment on our proposed
determination that certain approved programs will not need a program
revision for implementing e-notice. Alternatively, the EPA proposes
that these program revisions are non-substantial. Accordingly, the EPA
Regional offices would issue direct approvals of these program
revisions concurrent with their notice of proposed approval. We request
comment on our interpretation that the program revisions are non-
substantial.

D. Agencies Delegated To Implement the Federal Operating Permit Program

    With regard to the proposed part 71 program revisions, once the
rules are finalized, an air agency that is delegated the part 71
program would likely need to update its delegation agreement to update
its notice procedures consistent with the e-notice requirement in the
federal rules.

VII. Environmental Justice Considerations

    The 1990 CAA Amendments generally require that the EPA or the
permitting authority provide for adequate procedural opportunity 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 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.\19\ Regarding public
participation, the report recommends 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.'' Thus, the NEJAC specifically listed Web site
postings as a method to ensure meaningful public participation. The EPA
concludes that notice via the Internet would be a viable and effective
means of making information widely available to the public. We
encourage permitting authorities to provide additional notice where
they determine that a specific jurisdiction or population would be
better served with notice by traditional newspaper or another noticing
method.
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    \19\ ``Enhancing Environmental Justice in EPA Permitting
Programs.'' National Environmental Justice Advisory Council. April,
2011, pp. 20-21, http://www3.epa.gov/environmentaljustice/resources/publications/nejac/ej-in-permitting-report-2011.pdf.
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VIII. 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 regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control numbers 2060-0003 (for PSD and NNSR permit programs) and 2060-
0243 and 2060-0336 (for operating permit programs).
    In this action, the EPA is proposing to revise regulations to
address public noticing method requirements for permits for major
sources of air pollution. It is important to note that the proposed
rule revisions would 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 can adopt e-notice as their consistent
noticing method. Only in the latter case would an 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 when the EPA revises
its rules, no rulemaking action would be required by the agency to
adopt the e-notice requirements. In addition, an agency delegated a
part 71 program may need to update its delegation agreement. However,
if any of these agencies desire to continue to provide notice by way of
newspaper publication, 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. An agency delegated the
part 71 program may have to choose between implementing e-notice,
obtaining approval for implementing a part 70 program, or relinquishing
their title V program. Given that many air agencies already are
providing various forms of electronic notice as a supplement to their
newspaper notices, we anticipate that many agencies will cease to
notice permits by way of newspaper. However, 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 is already accounted
for under the approved information collection requests noted above.
    In addition, the proposed rule would not create any new
requirements for regulated entities, since air agencies are responsible
for the noticing of permits. Some industry sources could experience a
reduction in costs for permitting in cases where the permitting agency
requires that the cost of the newspaper public notice be incurred by
the permit applicant.

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 on small entities. Entities
potentially affected directly by this proposal include state, local and
tribal governments, and none of these governments would qualify as a
small entity. Other types of small entities are not directly subject to
the requirements of this action.

D. Unfunded Mandates Reform Act (URMA)

    This action does not contain any unfunded federal mandate as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. The 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 action does not have tribal implications as specified in
Executive Order 13175. Specifically, these proposed public notice
revisions do not affect the relationship or distribution of

power and responsibilities between the federal government and Indian
tribes. Elsewhere in this preamble we specifically describe the
interaction of this proposed rule with tribal air agencies. 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 only 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

    This 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 because it does not affect the level of
protection provided to human health or the environment. The results of
this evaluation are contained in Section VII of this preamble titled,
``Environmental Justice Considerations.''

IX. 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.

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference.

40 CFR Part 55

    Environmental protection, Administrative practice and procedure,
Air pollution control.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure,
Air pollution control.

40 CFR Part 71

    Environmental protection, Administrative practice and procedure,
Air pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure,
Air pollution control.

    Dated: December 21, 2015.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be 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 51.165 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 can
be supplemented by other methods on individual permits at the
discretion of the reviewing authority.
    (1) Post the information in paragraphs (i)(1)(i) through (iv) of
this section, for the duration of the public comment period, on a
public Web site(s) identified by the reviewing authority.
    (i) A notice of availability of the draft permit for public
comment;
    (ii) The draft permit;
    (iii) Information on how to access the record for the permit; and
    (iv) Information on how to request and/or attend a public hearing
on the 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 record for the permit and how to
request and/or attend a public hearing on the draft permit.
0
3. Section 51.166 is amended by revising paragraphs (q)(2)(ii), (iii),
(iv), (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 can 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 through a public
hearing and through written public comment. Alternatively, these
notifications can 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 can be supplemented by other methods
on individual permits at the discretion of the reviewing authority. If
the reviewing authority selects Web site notice as its consistent
noticing method, the notice shall be available for the duration of the
comment period and shall include the notice of public comment, the
draft permit, and information on how to access the record for the
permit and how to request and/or attend a public hearing on the permit.

    (iv) Distribute (e.g., via email, courier mail, postal service) a
copy of the notice of public comment to the applicant, the
Administrator and to officials and agencies having cognizance over the
location where the proposed construction would occur as follows: Any
other State or local air pollution control agencies, the chief
executives of the city and county where the source would be located;
any comprehensive regional land use planning agency, and any State,
Federal Land Manager, or Indian Governing body whose lands may be
affected by emissions from the source or modification.
* * * * *
    (vi) Consider all written comments submitted within a time
specified in the notice of public comment and all comments received at
any public hearing(s) in making a final decision on the approvability
of the application. The reviewing authority shall make all comments
available for public inspection in the same physical location(s), or
the same Web site(s), 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(s) or Web site(s) where the reviewing authority made available
preconstruction information and public comments relating to the
proposed source or major modification.
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart A--General Provisions

0
5. 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
6. The authority citation for the 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
7. Section 55.5 is amended by revising paragraphs (f)(1)(i) and (ii)
and (f)(2) and (4) 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 can be a public Web site
identified by the EPA, 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 EPA, of a 30-day
opportunity for written public comment on the available information and
the Administrator's preliminary COA designation.
    (2) A copy of the notice required pursuant to paragraph (f)(1)(ii)
of this section shall be sent (or emailed) to the requester, the
affected source, each person from whom a written request of such notice
has been received, and the following officials and agencies having
jurisdiction over the COA and NOA: State and local air pollution
control agencies, the chief executive of the city and county, the
Federal Land Manager of potentially affected Class I areas, and any
Indian governing body whose lands may be affected by emissions from the
OCS source.
* * * * *
    (4) The Administrator will make a final COA designation within 60
days after the close of the public comment period. The Administrator
will notify, in writing (which includes email), the requester and each
person who has requested notice of the final action and will set forth
the reasons for the determination. Such notification will be made
available for public inspection.
0
8. 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'')
permits.
* * * * *
0
9. Section 55.7 is amended by revising paragraphs (f)(4)(ii) and (iii)
to read as follows:

Sec.  55.7  Exemptions.

* * * * *
    (f) * * *
    (4) * * *
    (ii) Make available, in at least one location in the COA and NOA,
which can be a public Web site identified by the permitting authority,
a copy of all materials submitted by the requester, a copy of the
preliminary determination, and a copy or summary of other materials, if
any, considered in making the preliminary determination.
    (iii) Notify the public, by prominent advertisement in a newspaper
of general circulation in the COA and NOA or on a public Web site
identified by the permitting authority, of a 30-day opportunity for
written public comment on the information submitted by the owner or
operator and on the preliminary determination.
* * * * *

PART 70--STATE OPERATING PERMIT PROGRAMS

0
10. The authority citation for the part 70 continues to read as
follows:

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

0
11. Section 70.7 is amended by revising paragraphs (h)(1) and (2) to
read as follows:

Sec.  70.7  Permit issuance, renewal, reopenings, and revisions.

* * * * *
    (h) * * *
    (1) Notice shall be given by one of the following methods that is
selected by the permitting authority as its ``consistent noticing
method'': by publishing the notice in a newspaper of general
circulation in the area where the source is located (or in a State
publication designed to give general public notice) or by posting the
notice, for the duration of the public comment period, on a public Web
site identified

by the permitting authority. The consistent noticing method shall be
used for all permits subject to notice under this paragraph. If Web
site noticing is selected as the consistent noticing method, the draft
permit shall also be posted, for the duration of the public comment
period, on a public Web site identified by the permitting authority. In
addition, notice shall be given to persons on a mailing list developed
by the permitting authority, including those who request in writing
(via email, Web sign up, or other method) to be on the list. The
permitting authority shall use other means if necessary to assure
adequate notice to the affected public.
    (2) The notice shall identify the affected facility; the name and
address of the permittee; the name and address of the permitting
authority processing the permit; the activity or activities involved in
the permit action; the emissions change involved in any permit
modification; the name, address, and telephone number of a person (or
an email or Web site address) from whom interested persons may obtain
additional information, including copies of the permit draft, the
application, all relevant supporting materials, including those set
forth in Sec.  70.4(b)(3)(viii) of this part, and all other materials
available to the permitting authority (except for otherwise publically
available materials and publications) that are relevant to the permit
decision; a brief description of the comment procedures required by
this part; and the time and place of any hearing that may be held,
including a statement of procedures to request a hearing (unless a
hearing has already been scheduled).
* * * * *

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

0
12. The authority citation for part 71 continues to read as follows:

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

Subpart A--Operating Permits

0
13. Section 71.4 is amended by revising paragraph (g) to read as
follows:

Sec.  71.4  Program implementation.

* * * * *
    (g) Public notice of part 71 programs. In taking action to
administer and enforce an operating permits program under this part,
the Administrator will publish a notice in the Federal Register
informing the public of such action and the effective date of any part
71 program as set forth in Sec.  71.4(a) through (c) or (d)(1)(ii). The
publication of this part in the Federal Register on July 1, 1996 serves
as the notice for the part 71 permit programs described in Sec.
71.4(d)(1)(i) and (e). The EPA will also publish a notice in the
Federal Register of any delegation of a portion of the part 71 program
to a State, eligible Tribe, or local agency pursuant to the provisions
of Sec.  71.10. In addition to notices published in the Federal
Register under this paragraph (g), the Administrator will, to the
extent practicable, post a notice on a public Web site identified by
the Administrator of the part 71 program effectiveness or delegation,
and will send a letter to the Tribal governing body for an Indian Tribe
or the Governor (or his or her designee) of the affected area to
provide notice of such effectiveness or delegation.
* * * * *
0
14. Section 71.11 is amended by revising paragraphs (d)(3)(i)
introductory text, (d)(3)(ii), and (d)(4)(i)(G) to read as follows:

Sec.  71.11  Administrative record, public participation, and
administrative review.

* * * * *
    (d) * * *
    (3) * * *
    (i) By mailing (or emailing) a copy of a notice to the following
persons (any person otherwise entitled to receive notice under
paragraph (d) of this section may waive his or her rights to receive
notice for any permit):
* * * * *
    (ii) By posting a notice on a public Web site identified by the
permitting authority for the duration of the public comment period. The
notice shall be consistent with paragraph (d)(4)(i) of this section and
be accompanied by a copy of the draft permit.
* * * * *
    (4) * * *
    (i) * * *
    (G) The physical location and/or Web site address of the
administrative record, the times at which the record will be open for
public inspection, and a statement that all data submitted by the
applicant are available as part of the administrative record; and
* * * * *

Subpart B--Permits for Early Reductions Sources

0
15. Section 71.27 is amended by revising paragraphs (d)(3)(i)
introductory text, (d)(3)(ii), and (d)(4)(i)(E) to read as follows:

Sec.  71.27  Public participation and appeal.

* * * * *
    (d) * * *
    (3) * * *
    (i) By mailing (or emailing) a copy of a notice to the following
persons (any person otherwise entitled to receive notice under this
paragraph (d) may waive his or her rights to receive notice for any
permit):
* * * * *
    (ii) By posting a notice of availability and a copy of the draft
permit on a public Web site identified by the permitting authority for
the duration of the public comment period.
* * * * *
    (4) * * *
    (i) * * *
    (E) The physical location and/or Web site address of the
administrative record, the times at which the record will be open for
public inspection, a statement that all data submitted by the applicant
are available as part of the administrative record, and the name,
address, and telephone number of a person (or an email or Web site
address) from whom interested persons may obtain additional
information, including copies of the draft permit, the application, all
relevant supporting materials, and all other materials available to the
Administrator that are relevant to the permit decision;
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
16. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et
seq.

Subpart A--General Program Requirements

0
17. Section 124.10 is amended by adding paragraph (c)(2)(iii) to read
as follows:

Sec.  124.10  Public notice of permit actions and public comment
period.

* * * * *
    (c) * * *
    (2) * * *