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(continued)

(2) The applicable Acid Rain emissions limitation for sulfur dioxide; and

(3) The applicable Acid Rain emissions limitation for nitrogen oxides.

(b) Each Acid Rain permit is deemed to incorporate the definitions of terms under §72.2 of this part.

§ 72.51 Permit shield.
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Each affected unit operated in accordance with the Acid Rain permit that governs the unit and that was issued in compliance with title IV of the Act, as provided in this part and parts 73, 74, 75, 76, 77, and 78 of this chapter shall be deemed to be operating in compliance with the Acid Rain Program, except as provided in §72.9(g)(6).

[58 FR 3650, Jan. 11, 1993, as amended at 62 FR 55481, Oct. 24, 1997]

Subpart F—Federal Acid Rain Permit Issuance Procedures
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§ 72.60 General.
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(a) Scope. This subpart and parts 74, 76, and 78 of this chapter contain the procedures for federal issuance of Acid Rain permits for Phase I of the Acid Rain Program and Phase II for sources for which the Administrator is the permitting authority under §72.74.

(1) Notwithstanding the provisions of part 71 of this chapter, the provisions of subparts C, D, E, F, and H of this part and of parts 74, 76, and 78 of this chapter shall govern the following requirements for Acid Rain permit applications and permits: submission, content, and effect of permit applications; content and requirements of compliance plans and compliance options; content of permits and permit shield; procedures for determining completeness of permit applications; issuance of draft permits; administrative record; public notice and comment and public hearings on draft permits; response to comments on draft permits; issuance and effectiveness of permits; permit revisions; and administrative appeal procedures. The provisions of part 71 of this chapter concerning Indian tribes, delegation of a part 71 program, affected State review of draft permits, and public petitions to reopen a permit for cause shall apply to Acid Rain permit applications and permits.

(2) The procedures in this subpart do not apply to the issuance of Acid Rain permits by State permitting authorities with operating permit programs approved under part 70 of this chapter, except as expressly provided in subpart G of this part.

(b) Permit Decision Deadlines. Except as provided in §72.74(c)(1)(i), the Administrator will issue or deny an Acid Rain permit under §72.69(a) within 6 months of receipt of a complete Acid Rain permit application submitted for a unit, in accordance with §72.21, at the U.S. EPA Regional Office for the Region in which the source is located.

(c) Use of Direct Final Procedures. The Administrator may, in his or her discretion, issue, as single document, a draft Acid Rain permit in accordance with §72.62 and an Acid Rain permit in final form and may provide public notice of the opportunity for public comment on the draft Acid Rain permit in accordance with §72.65. The Administrator may provide that, if no significant, adverse comment on the draft Acid Rain permit is timely submitted, the Acid Rain permit will be deemed to be issued on a specified date without further notice and, if such significant, adverse comment is timely submitted, an Acid Rain permit or denial of an Acid Rain permit will be issued in accordance with §72.69. Any notice provided under this paragraph (c) will include a description of the procedure in the prior sentence.

[62 FR 55481, Oct. 24, 1997]

§ 72.61 Completeness.
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(a) Determination of Completeness. The Administrator will determine whether the Acid Rain permit application is complete within 60 days of receipt by the U.S. EPA Regional Office for the Region in which the source is located. The permit application shall be deemed to be complete if the Administrator fails to notify the designated representative to the contrary within 60 days of receipt.

(b) Supplemental Information. (1) Regardless of whether the Acid Rain permit application is complete under paragraph (a) of this section, the Administrator may require submission of any additional information that the Administrator determines to be necessary in order to review the Acid Rain permit application and issue an Acid Rain permit.

(2)(i) Within a reasonable period determined by the Administrator, the designated representative shall submit the information required under paragraph (b)(1) of this section.

(ii) If the designated representative fails to submit the supplemental information within the required time period, the Administrator may disapprove that portion of the Acid Rain permit application for the review of which the information was necessary and may deny the source an Acid Rain permit.

(3) Any designated representative who fails to submit any relevant information or who has submitted incorrect information in a permit application shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary information or corrected information to the Administrator.

[58 FR 3650, Jan. 11, 1993, as amended at 62 FR 55481, Oct. 24, 1997]

§ 72.62 Draft permit.
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(a) After the Administrator receives a complete Acid Rain permit application and any supplemental information, the Administrator will issue a draft permit that incorporates in whole, in part, or with changes or conditions as appropriate, the permit application or deny the source a draft permit.

(b) The draft permit will be based on the information submitted by the designated representative of the affected source and other relevant information.

(c) The Administrator will serve a copy of the draft permit and the statement of basis on the designated representative of the affected source.

(d) The Administrator will provide a 30-day period for public comment, and opportunity to request a public hearing, on the draft permit or denial of a draft permit, in accordance with the public notice required under §72.65(a)(1)(i) of this part.

§ 72.63 Administrative record.
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(a) Contents of the Administrative Record. The Administrator will prepare an administrative record for an Acid Rain permit or denial of an Acid Rain permit. The administrative record will contain:

(1) The permit application and any supporting or supplemental data submitted by the designated representative;

(2) The draft permit;

(3) The statement of basis;

(4) Copies of any documents cited in the statement of basis and any other documents relied on by the Administrator in issuing or denying the draft permit (including any records of discussions or conferences with owners, operators, or the designated representative of affected units at the source or interested persons regarding the draft permit), or, for any such documents that are readily available, a statement of their location;

(5) Copies of all written public comments submitted on the draft permit or denial of a draft permit;

(6) The record of any public hearing on the draft permit or denial of a draft permit;

(7) The Acid Rain permit; and

(8) Any response to public comments submitted on the draft permit or denial of a draft permit and copies of any documents cited in the response and any other documents relied on by the Administrator to issue or deny the Acid Rain permit, or, for any such documents that are readily available, a statement of their location.

(b) [Reserved]

§ 72.64 Statement of basis.
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(a) The statement of basis will briefly set forth significant factual, legal, and policy considerations on which the Administrator relied in issuing or denying the draft permit.

(b) The statement of basis will include:

(1) The reasons, and supporting authority, for approval or disapproval of any compliance options requested in the permit application, including references to applicable statutory or regulatory provisions and to the administrative record; and

(2) The name, address, and telephone, and facsimile numbers of the EPA office processing the issuance or denial of the draft permit.

§ 72.65 Public notice of opportunities for public comment.
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(a)(1) The Administrator will give public notice of the following:

(i) The draft permit or denial of a draft permit and the opportunity for public review and comment and to request a public hearing; and

(ii) Date, time, location, and procedures for any scheduled hearing on the draft permit or denial of a draft permit.

(2) Any public notice given under this section may be for the issuance or denial of one or more draft permits.

(b) Methods. The Administrator will give the public notice required by this section by:

(1) Serving written notice on the following persons (except where such person has waived his or her right to receive such notice):

(i) The designated representative;

(ii) The air pollution control agencies of affected States; and

(iii) Any interested person.

(2) Giving notice by publication in the Federal Register and in a newspaper of general circulation in the area where the source covered by the Acid Rain permit application is located or in a State publication designed to give general public notice. Notwithstanding the prior sentence, if a draft permit requires the affected units at a source to comply with §72.9(c)(1) and to meet any applicable emission limitation for NOX under §§76.5, 76.6, 76.7, 76.8, or 76.11 of this chapter and does not include for any unit a compliance option under §72.44, part 74 of this chapter, or §76.10 of this chapter, the Administrator may, in his or her discretion, provide notice of the draft permit by Federal Register publication and may omit notice by newspaper or State publication.

(c) Contents. All public notices issued under this section will contain the following information:

(1) Identification of the EPA office processing the issuance or denial of the draft permit for which the notice is being given.

(2) Identification of the designated representative for the affected source.

(3) Identification of each unit covered by the Acid Rain permit application and the draft permit.

(4) Any compliance options proposed for approval in the draft permit or for disapproval and the total allowances (including any under the compliance options) allocated to each unit if the Acid Rain permit application is approved.

(5) The address and office hours of a public location where the administrative record is available for public inspection and a statement that all information submitted by the designated representative and not protected as confidential under section 114(c) of the Act is available for public inspection as part of the administrative record.

(6) For public notice under paragraph (a)(1)(i) of this section, a brief description of the public comment procedures, including:

(i) A 30-day period for public comment beginning the date of publication of the notice or, in the case of an extension or reopening of the public comment period, such period as the Administrator deems appropriate;

(ii) The address where public comments should be sent;

(iii) Required formats and contents for public comment;

(iv) An opportunity to request a public hearing to occur not earlier than 15 days after public notice is given and the location, date, time, and procedures of any scheduled public hearing; and

(v) Any other means by which the public may participate.

(d) Extensions and Reopenings of the Public Comment Period. On the Administrator's own motion or on the request of any person, the Administrator may, at his or her discretion, extend or reopen the public comment period where he or she finds that doing so will contribute to the decision-making process by clarifying one or more significant issues affecting the draft permit or denial of a draft permit. Notice of any such extension or reopening shall be given under paragraph (a)(1)(i) of this section.

[58 FR 3650, Jan. 11, 1993, as amended at 62 FR 55482, Oct. 24, 1997]

§ 72.66 Public comments.
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(a) General. During the public comment period, any person may submit written comments on the draft permit or the denial of a draft permit.

(b) Form. (1) Comments shall be submitted in duplicate.

(2) The submission shall clearly indicate the draft permit issuance or denial to which the comments apply.

(3) The submission shall clearly indicate the name of the person commenting, his or her interest in the matter, and his or her affiliation, if any, to owners and operators of any unit covered by the Acid Rain permit application.

(c) Contents. Timely comments on any aspect of the draft permit or denial or a draft permit will be considered unless they concern:

(1) Any standard requirement under §72.9;

(2) Issues that are not relevant, such as:

(i) The environmental effects of acid rain, acid deposition, sulfur dioxide, or nitrogen oxides generally; and

(ii) Permit issuance procedures, or actions on other permit applications, that are not relevant to the draft permit issuance or denial in question.

(d) Persons who do not wish to raise issues concerning the issuance or denial of the draft permit, but who wish to be notified of any subsequent actions concerning such matter may so indicate in writing during the public comment period or at any other time. The Administrator will place their names on a list of interested persons.

§ 72.67 Opportunity for public hearing.
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(a) During the public comment period, any person may request a public hearing. A request for a public hearing shall be made in writing and shall state the issues proposed to be raised in the hearing.

(b) On the Administrator's own motion or on the request of any person, the Administrator may, at his or her discretion, hold a pubic hearing whenever the Administrator finds that such a hearing will contribute to the decision-making process by clarifying one or more significant issues affecting the draft permit or denial of a draft permit. Public hearings will not be held on issues under §72.66(c) (1) and (2).

(c) During a public hearing under this section, any person may submit oral or written comments concerning the draft permit or denial of a draft permit. The Administrator may set reasonable limits on the time allowed for oral statements and will require the submission of a written summary of each oral statement.

(d) The Administrator will assure that a record is made of the hearing.

§ 72.68 Response to comments.
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(a) The Administrator will consider comments on the draft permit or denial of a draft permit that are received during the public comment period and any public hearing. The Administrator is not required to consider comments otherwise received.

(b) In issuing or denying an Acid Rain permit, the Administrator will:

(1) Identify any permit provision or portion of the statement of basis that has been changed and the reasons for the change; and

(2) Briefly describe and respond to relevant comments under paragraph (a) of this section.

§ 72.69 Issuance and effective date of acid rain permits.
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(a) After the close of the public comment period, the Administrator will issue or deny an Acid Rain permit. The Administrator will serve a copy of any Acid Rain permit and the response to comments on the designated representative for the source covered by the issuance or denial and serve written notice of the issuance or denial on the air pollution control agencies of affected States and any interested person. The Administrator will also give notice in the Federal Register.

(b)(1) The term of every Acid Rain permit shall be 5 years commencing on its effective date.

(2) Every Acid Rain permit for Phase I shall take effect on January 1, 1995.

[58 FR 3650, Jan. 11, 1993, as amended at 62 FR 55482, Oct. 24, 1997]

Subpart G—Acid Rain Phase II Implementation
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§ 72.70 Relationship to title V operating permit program.
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(a) Scope. This subpart sets forth criteria for approval of State operating permit programs and acceptance of State Acid Rain programs, the procedure for including State Acid Rain programs in a title V operating permit program, and the requirements with which State permitting authorities with accepted programs shall comply, and with which the Administrator will comply in the absence of an accepted State program, to issue Phase II Acid Rain permits.

(b) Relationship to operating permit program. Each State permitting authority with an affected source shall act in accordance with this part and parts 70, 74, 76, and 78 of this chapter for the purpose of incorporating Acid Rain Program requirements into each affected source's operating permit . To the extent that this part or part 74, 76, or 78 of this chapter is inconsistent with the requirements of part 70 of this chapter, this part and parts 74, 76, and 78 of this chapter shall take precedence and shall govern the issuance, denial, revision, reopening, renewal, and appeal of the Acid Rain portion of an operating permit.

[62 FR 55482, Oct. 24, 1997, as amended at 66 FR 12978, Mar. 1, 2001]

§ 72.71 Acceptance of State Acid Rain programs—general.
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(a) Each State shall submit, to the Administrator for review and acceptance, a State Acid Rain program meeting the requirements of §§72.72 and 72.73.

(b) The Administrator will review each State Acid Rain program or portion of a State Acid Rain program and accept, by notice in the Federal Register, all or a portion of such program to the extent that it meets the requirements of §§72.72 and 72.73. At his or her discretion, the Administrator may accept, with conditions and by notice in the Federal Register, all or a portion of such program despite the failure to meet requirements of §§72.72 and 72.73. On the later of the date of publication of such notice in the Federal Register or the date on which the State operating permit program is approved under part 70 of this chapter, the State Acid Rain program accepted by the Administrator will become a portion of the approved State operating permit program. Before accepting or rejecting all or a portion of a State Acid Rain Program, the Administrator will provide notice and opportunity for public comment on such acceptance or rejection.

(c)(1) Except as provided in paragraph (c)(2) of this section, the Administrator will issue all Acid Rain permits for Phase I. The Administrator reserves the right to delegate the remaining administration and enforcement of Acid Rain permits for Phase I to approved State operating permit programs.

(2) The State permitting authority will issue an opt-in permit for a combustion or process source subject to its jurisdiction if, on the date on which the combustion or process source submits an opt-in permit application, the State permitting authority has opt-in regulations accepted under paragraph (b) of this section and an approved operating permits program under part 70 of this chapter.

[62 FR 55482, Oct. 24, 1997]

§ 72.72 Criteria for State operating permit program.
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Link to an amendment published at 70 FR 25334, May 12, 2005.

A State operating permit program (including a State Acid Rain program) shall meet the following criteria. Any aspect of a State operating permits program or any implementation of a State operating permit program that fails to meet these criteria shall be grounds for nonacceptance or withdrawal of all or part of the Acid Rain portion of an approved State operating permit program by the Administrator or for disapproval or withdrawal of approval of the State operating permit program by the Administrator.

(a) Non-Interference with Acid Rain Program. The State operating permit program shall not include or implement any measures that would interfere with the Acid Rain Program. In particular, the State program shall not restrict or interfere with allowance trading and shall not interfere with the Administrator's decision on an offset plan. Aspects and implementation of the State program that would constitute interference with the Acid Rain Program, and are thus prohibited, include but are not limited to:

(1) Prohibitions, inconsistent with the Acid Rain Program, on the acquisition or transfer of allowances by an affected unit under the jurisdiction of the State permitting authority;

(2) Restrictions, inconsistent with the Acid Rain Program, on an affected unit's ability to sell or otherwise obligate its allowances;

(3) Requirements that an affected unit maintain a balance of allowances in excess of the level determined to be prudent by any utility regulatory authority with jurisdiction over the owners of the affected unit;

(4) Failing to notify the Administrator of any State administrative or judicial appeals of, or decisions covering, Acid Rain permit provisions that might affect Acid Rain Program requirements;

(5) Issuing an order, inconsistent with the Acid Rain Program, interpreting Acid Rain Program requirements as not applicable to an affected source or an affected unit in whole or in part or otherwise adjusting the requirements;

(6) Withholding approval of any compliance option that meets the requirements of the Acid Rain Program; or

(7) Any other aspect of implementation that the Administrator determines would hinder the operation of the Acid Rain Program.

(b) The State operating permit program shall require the following provisions, which are adopted to the extent that this paragraph (b) is incorporated by reference or is otherwise included in the State operating permit program.

(1) Acid Rain Permit Issuance. Issuance or denial of Acid Rain permits shall follow the procedures under this part, part 70 of this chapter, and, for combustion or process sources, part 74, including:

(i) Permit application—(A) Requirement to comply. (1) The owners and operators and the designated representative for each affected source, except for combustion or process sources, under jurisdiction of the State permitting authority shall be required to comply with subparts B, C, and D of this part.

(2) The owners and operators and the designated representative for each combustion or process source under jurisdiction of the State permitting authority shall be required to comply with subpart B of this part and subparts B, C, D, and E of part 74 of this chapter.

(B) Effect of an Acid Rain permit application. A complete Acid Rain permit application, except for a permit application for a combustion or process source, shall be binding on the owners and operators and the designated representative of the affected source, all affected units at the source, and any other unit governed by the permit application and shall be enforceable as an Acid Rain permit, from the date of submission of the permit application until the issuance or denial of the Acid Rain permit under paragraph (b)(1)(vii) of this section.

(ii) Draft Permit. (A) The State permitting authority shall prepare the draft Acid Rain permit in accordance with subpart E of this part and part 76 of this chapter or, for a combustion or process source, with subpart B of part 74 of this chapter, or deny a draft Acid Rain permit.

(B) Prior to issuance of a draft permit for a combustion or process source, the State permitting authority shall provide the designated representative of a combustion or process source an opportunity to confirm its intention to opt-in, in accordance with §74.14 of this chapter.

(iii) Public Notice and Comment Period. Public notice of the issuance or denial of the draft Acid Rain permit and the opportunity to comment and request a public hearing shall be given by publication in a newspaper of general circulation in the area where the source is located or in a State publication designed to give general public notice. Notwithstanding the prior sentence, if a draft permit requires the affected units at a source to comply with §72.9(c)(1) and to meet any applicable emission limitation for NOX under §§76.5, 76.6, 76.7, 76.8, or 76.11 of this chapter and does not include for any unit a compliance option under §72.44, part 74 of this chapter, or §76.10 of this chapter, the State permitting authority may, in its discretion, provide notice by serving notice on persons entitled to receive a written notice and may omit notice by newspaper or State publication.

(iv) Proposed permit. The State permitting authority shall incorporate all changes necessary and issue a proposed Acid Rain permit in accordance with subpart E of this part and part 76 of this chapter or, for a combustion or process source, with subpart B of part 74 of this chapter, or deny a proposed Acid Rain permit.

(v) Direct proposed procedures. The State permitting authority may, in its discretion, issue, as a single document, a draft Acid Rain permit in accordance with paragraph (b)(1)(ii) of this section and a proposed Acid Rain permit and may provide public notice of the opportunity for public comment on the draft Acid Rain permit in accordance with paragraph (b)(1)(iii) of this section. The State permitting authority may provide that, if no significant, adverse comment on the draft Acid Rain permit is timely submitted, the proposed Acid Rain permit will be deemed to be issued on a specified date without further notice and, if such significant, adverse comment is timely submitted, a proposed Acid Rain permit or denial of a proposed Acid Rain permit will be issued in accordance with paragraph (b)(1)(iv) of this section. Any notice provided under this paragraph (b)(1)(v) shall include a description of the procedure in the prior sentence.

(vi) Acid Rain Permit Issuance. Following the Administrator's review of the proposed Acid Rain permit, the State permitting authority shall or, under part 70 of this chapter, the Administrator will, incorporate any required changes and issue or deny the Acid Rain permit in accordance with subpart E of this part and part 76 of this chapter or, for a combustion or process source, with subpart B of part 74 of this chapter.

(vii) New Owners. An Acid Rain permit shall be binding on any new owner or operator or designated representative of any source or unit governed by the permit.

(viii) Each Acid Rain permit (including a draft or proposed permit) shall contain all applicable Acid Rain requirements, shall be a complete and segregable portion of the operating permit, and shall not incorporate information contained in any other documents, other than documents that are readily available.

(ix) No Acid Rain permit (including a draft or proposed permit) shall be issued unless the Administrator has received a certificate of representation for the designated representative of the source in accordance with subpart B of this part.

(x) Except as provided in §72.73(b) and, with regard to combustion or process sources, in §74.14(c)(6) of this chapter, the State permitting authority shall issue or deny an Acid Rain permit within 18 months of receiving a complete Acid Rain permit application submitted in accordance with §72.21 or such lesser time approved under part 70 of this chapter.

(2) Permit Revisions. In acting on any Acid Rain permit revision, the State permitting authority shall follow the provisions and procedures set forth at subpart H of this part.

(3) Permit Renewal. The renewal of an Acid Rain permit for an affected source shall be subject to all the requirements of this subpart pertaining to the issuance of permits.

(4) Acid Rain Program Forms. In developing the Acid Rain portion of the operating permit, the permitting authority shall use the applicable forms or other formats prescribed by the Administrator under the Acid Rain Program; provided that the Administrator may waive this requirement in whole or in part.

(5) Acid Rain Appeal Procedures. (i) Appeals of the Acid Rain portion of an operating permit issued by the State permitting authority that do not challenge or involve decisions or actions of the Administrator under this part or part 73, 74, 75, 76, 77, or 78 of this chapter shall be conducted according to procedures established by the State in accordance with part 70 of this chapter. Appeals of the Acid Rain portion of such a permit that challenge or involve such decisions or actions of the Administrator shall follow the procedures under part 78 of this chapter and section 307 of the Act. Such decisions or actions include, but are not limited to, allowance allocations, determinations concerning alternative monitoring systems, and determinations of whether a technology is a qualifying repowering technology.

(ii) [Reserved]

(iii) The State permitting authority shall serve written notice on the Administrator of any State administrative or judicial appeal concerning as Acid Rain provision of any operating permit or denial of an Acid Rain portion of any operating permit within 30 days of the filing of the appeal.

(iv) Any State administrative permit appeals procedures shall ensure that the Administrator may intervene as a matter of right in any permit appeal involving an Acid Rain permit provision or denial of an Acid Rain permit.

(v) The State permitting authority shall serve written notice on the Administrator of any determination or order in a State administrative or judicial proceeding that interprets, modifies, voids, or otherwise relates to any portion of an Acid Rain permit.

(vi) A failure of the State permitting authority to issue an Acid Rain permit in accordance with §72.73(b)(1) or, with regard to combustion or process sources, §74.14(b)(6) of this chapter shall be ground for filing an appeal.

[58 FR 3650, Jan. 11, 1993, as amended at 60 FR 17113, Apr. 4, 1995; 62 FR 55482, Oct. 24, 1997; 66 FR 12978, Mar. 1, 2001]

§ 72.73 State issuance of Phase II permits.
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Link to an amendment published at 70 FR 25334, May 12, 2005.

(a) State Permit Issuance. (1) A State that is authorized to administer and enforce an operating permit program under part 70 of this chapter and that has a State Acid Rain program accepted by the Administrator under §72.71 shall be responsible for administering and enforcing Acid Rain permits effective in Phase II for all affected sources:

(i) That are located in the geographic area covered by the operating permits program; and

(ii) To the extent that the accepted State Acid Rain program is applicable.

(2) In administering and enforcing Acid Rain permits, the State permitting authority shall comply with the procedures for issuance, revision, renewal, and appeal of Acid Rain permits under this subpart.

(b) Permit Issuance Deadline. (1) A State, to the extent that it is responsible under paragraph (a) of this section as of December 31, 1997 (or such later date as the Administrator may establish) for administering and enforcing Acid Rain permits, shall:

(i) On or before December 31, 1997, issue an Acid Rain permit for Phase II covering the affected units (other than opt-in sources) at each source in the geographic area for which the program is approved; provided that the designated representative of the source submitted a timely and complete Acid Rain permit application in accordance with §72.21.

(ii) On or before January 1, 1999, for each unit subject to an Acid Rain NOX emissions limitation, amend the Acid Rain permit under §72.83 and add any NOX early election plan that was approved by the Administrator under §76.8 of this chapter and has not been terminated and reopen the Acid Rain permit and add any other Acid Rain Program nitrogen oxides requirements; provided that the designated representative of the affected source submitted a timely and complete Acid Rain permit application for nitrogen oxides in accordance with §72.21.

(2) Each Acid Rain permit issued in accordance with this section shall have a term of 5 years commencing on its effective date; provided that, at the discretion of the permitting authority, the first Acid Rain permit for Phase II issued to a source may have a term of less than 5 years where necessary to coordinate the term of such permit with the term of an operating permit to be issued to the source under a State operating permit program. Each Acid Rain permit issued in accordance with paragraph (b)(1) of this section shall take effect by the later of January 1, 2000, or, where the permit governs a unit under §72.6(a)(3) of this part, the deadline for monitor certification under part 75 of this chapter.

[62 FR 55483, Oct. 24, 1997]

§ 72.74 Federal issuance of Phase II permits.
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(a)(1) The Administrator will be responsible for administering and enforcing Acid Rain permits for Phase II for any affected sources to the extent that a State permitting authority is not responsible, as of January 1, 1997 or such later date as the Administrator may establish, for administering and enforcing Acid Rain permits for such sources under §72.73(a).

(2) After and to the extent the State permitting authority becomes responsible for administering and enforcing Acid Rain permits under §72.73(a), the Administrator will suspend federal administration of Acid Rain permits for Phase II for sources and units to the extent that they are subject to the accepted State Acid Rain program, except as provided in paragraph (b)(4) of this section.

(b)(1) The Administrator will administer and enforce Acid Rain permits effective in Phase II for sources and units during any period that the Administrator is administering and enforcing an operating permit program under part 71 of this chapter for the geographic area in which the sources and units are located.

(2) The Administrator will administer and enforce Acid Rain permits effective in Phase II for sources and units otherwise subject to a State Acid Rain program under §72.73(a) if:

(i) The Administrator determines that the State permitting authority is not adequately administering or enforcing all or a portion of the State Acid Rain program, notifies the State permitting authority of such determination and the reasons therefore, and publishes such notice in the Federal Register;

(ii) The State permitting authority fails either to correct the deficiencies within a reasonable period (established by the Administrator in the notice under paragraph (b)(2)(i) of this section) after issuance of the notice or to take significant action to assure adequate administration and enforcement of the program within a reasonable period (established by the Administrator in the notice) after issuance of the notice; and

(iii) The Administrator publishes in the Federal Register a notice that he or she will administer and enforce Acid Rain permits effective in Phase II for sources and units subject to the State Acid Rain program or a portion of the program. The effective date of such notice shall be a reasonable period (established by the Administrator in the notice) after the issuance of the notice.

(3) When the Administrator administers and enforces Acid Rain permits under paragraph (b)(1) or (b)(2) of this section, the Administrator will administer and enforce each Acid Rain permit issued under the State Acid Rain program or portion of the program until, and except to the extent that, the permit is replaced by a permit issued under this section. After the later of the date for publication of a notice in the Federal Register that the State operating permit program is currently approved by the Administrator or that the State Acid Rain program or portion of the program is currently accepted by the Administrator, the Administrator will suspend federal administration of Acid Rain permits effective in Phase II for sources and units to the extent that they are subject to the State Acid Rain program or portion of the program, except as provided in paragraph (b)(4) of this section.

(4) After the State permitting authority becomes responsible for administering and enforcing Acid Rain permits effective in Phase II under §72.73(a), the Administrator will continue to administer and enforce each Acid Rain permit issued under paragraph (a)(1), (b)(1), or (b)(2) of this section until, and except to the extent that, the permit is replaced by a permit issued under the State Acid Rain program. The State permitting authority may replace an Acid Rain permit issued under paragraph (a)(1), (b)(1), or (b)(2) of this section by issuing a permit under the State Acid Rain program by the expiration of the permit under paragraph (a)(1), (b)(1), or (b)(2) of this section. The Administrator may retain jurisdiction over the Acid Rain permits issued under paragraph (a)(1), (b)(1), or (b)(2) of this section for which the administrative or judicial review process is not complete and will address such retention of jurisdiction in a notice in the Federal Register.

(c) Permit Issuance Deadline. (1)(i) On or before January 1, 1998, the Administrator will issue an Acid Rain permit for Phase II setting forth the Acid Rain Program sulfur dioxide requirements for each affected unit (other than opt-in sources) at a source not under the jurisdiction of a State permitting authority that is responsible, as of January 1, 1997 (or such later date as the Administrator may establish), under §72.73(a) of this section for administering and enforcing Acid Rain permits with such requirements; provided that the designated representative for the source submitted a timely and complete Acid Rain permit application in accordance with §72.21. The failure by the Administrator to issue a permit in accordance with this paragraph shall be grounds for the filing of an appeal under part 78 of this chapter.

(ii) Each Acid Rain permit issued in accordance with this section shall have a term of 5 years commencing on its effective date. Each Acid Rain permit issued in accordance with paragraph (c)(1)(i) of this section shall take effect by the later of January 1, 2000 or, where a permit governs a unit under §72.6(a)(3), the deadline for monitor certification under part 75 of this chapter.

(2) Nitrogen Oxides. Not later than 6 months following submission by the designated representative of an Acid Rain permit application for nitrogen oxides, the Administrator will amend under §72.83 the Acid Rain permit and add any NOX early election plan that was approved under §76.8 of this chapter and has not been terminated and reopen the Acid Rain permit for Phase II and add any other Acid Rain Program nitrogen oxides requirements for each affected source not under the jurisdiction of a State permitting authority that is responsible, as of January 1, 1997 (or such later date as the Administrator may establish), under §72.73(a) for issuing Acid Rain permits with such requirements; provided that the designated representative for the source submitted a timely and complete Acid Rain permit application for nitrogen oxides in accordance with §72.21.

(d) Permit Issuance. (1) The Administrator may utilize any or all of the provisions of subparts E and F of this part to administer Acid Rain permits as authorized under this section or may adopt by rulemaking portions of a State Acid Rain program in substitution of or in addition to provisions of subparts E and F of this part to administer such permits. The provisions of Acid Rain permits for Phase I or Phase II issued by the Administrator shall not be applicable requirements under part 70 of this chapter.

(2) The Administrator may delegate all or part of his or her responsibility, under this section, for administering and enforcing Phase II Acid Rain permits or opt-in permits to a State. Such delegation will be made consistent with the requirements of this part and the provisions governing delegation of a part 71 program under part 71 of this chapter.

[62 FR 55483, Oct. 24, 1997]

Subpart H—Permit Revisions
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§ 72.80 General.
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(a) This subpart shall govern revisions to any Acid Rain permit issued by the Administrator and to the Acid Rain portion of any operating permit issued by a State permitting authority.

(b) Notwithstanding the operating permit revision procedures specified in parts 70 and 71 of this chapter, the provisions of this subpart shall govern revision of any Acid Rain Program permit provision.

(c) A permit revision may be submitted for approval at any time. No permit revision shall affect the term of the Acid Rain permit to be revised. No permit revision shall excuse any violation of an Acid Rain Program requirement that occurred prior to the effective date of the revision.

(d) The terms of the Acid Rain permit shall apply while the permit revision is pending, except as provided in §72.83 for administrative permit amendments.

(e) The standard requirements of §72.9 shall not be modified or voided by a permit revision.

(f) Any permit revision involving incorporation of a compliance option that was not submitted for approval and comment during the permit issuance process or involving a change in a compliance option that was previously submitted, shall meet the requirements for applying for such compliance option under subpart D of this part and parts 74 and 76 of this chapter.

(g) Any designated representative who fails to submit any relevant information or who has submitted incorrect information in a permit revision shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary information or corrected information to the permitting authority.

(h) For permit revisions not described in §§72.81 and 72.82 of this part, the permitting authority may, in its discretion, determine which of these sections is applicable.

[58 FR 3650, Jan. 11, 1993, as amended at 62 FR 55484, Oct. 24, 1997]

§ 72.81 Permit modifications.
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(a) Permit revisions that shall follow the permit modification procedures are:

(1) Relaxation of an excess emission offset requirement after approval of the offset plan by the Administrator;

(2) Incorporation of a final nitrogen oxides alternative emission limitation following a demonstration period;

(3) Determinations concerning failed repowering projects under §72.44(g)(1)(i) and (2) of this part.

(b) The following permit revisions shall follow, at the option of the designated representative submitting the permit revision, either the permit modification procedures or the fast-track modification procedures under §72.82 of this part:

(1) Consistent with paragraph (a) of this section, incorporation of a compliance option that the designated representative did not submit for approval and comment during the permit issuance process; except that incorporation of a reduced utilization plan that was not submitted during the permit issuance process, that does not designate a compensating unit, and that meets the requirements of §72.43 of this part, may use the administrative permit amendment procedures under §72.83 of this part;

(2) Changes in a substitution plan or reduced utilization plan that result in the addition of a new substitution unit or a new compensating unit under the plan;

(3) Addition of a nitrogen oxides averaging plan to a permit;

(4) Changes in a Phase I extension plan, repowering plan, nitrogen oxides averaging plan, or nitrogen oxides compliance deadline extension; and

(5) Changes in a thermal energy plan that result in any addition or subtraction of a replacement unit or any change affecting the number of allowances transferred for the replacement of thermal energy.

(c)(1) Permit modifications shall follow the permit issuance requirements of:

(i) Subparts E, F, and G of this part, where the Administrator is the permitting authority; or

(ii) Subpart G of this part, where the State is the permitting authority.

(2) For purposes of applying paragraph (c)(1) of this section, a requested permit modification shall be treated as a permit application, to the extent consistent with §72.80 (c) and (d).

[58 FR 3650, Jan. 11, 1993, as amended at 60 FR 17114, Apr. 4, 1995; 62 FR 55485, Oct. 24, 1997]

§ 72.82 Fast-track modifications.
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The following procedures shall apply to all fast-track modifications.

(a) If the Administrator is the permitting authority, the designated representative shall serve a copy of the fast-track modification on the Administrator and any person entitled to a written notice under §72.65(b)(1)(ii) and (iii). If a State is the permitting authority, the designated representative shall serve such a copy on the Administrator, the permitting authority, and any person entitled to receive a written notice of a draft permit under the approved State operating permit program. Within 5 business days of serving such copies, the designated representative shall also give public notice by publication in a newspaper of general circulation in the area where the sources are located or in a State publication designed to give general public notice.

(b) The public shall have a period of 30 days, commencing on the date of publication of the notice, to comment on the fast-track modification. Comments shall be submitted in writing to the permitting authority and to the designated representative.

(c) The designated representative shall submit the fast-track modification to the permitting authority on or before commencement of the public comment period.

(d) Within 30 days of the close of the public comment period if the Administrator is the permitting authority or within 90 days of the close of the public comment period if a State is the permitting authority, the permitting authority shall consider the fast-track modification and the comments received and approve, in whole or in part or with changes or conditions as appropriate, or disapprove the modification. A fast-track modification shall be subject to the same provisions for review by the Administrator and affected States as are applicable to a permit modification under §72.81.

[58 FR 3650, Jan. 11, 1993, as amended at 62 FR 55485, Oct. 24, 1997]

§ 72.83 Administrative permit amendment.
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(a) Acid Rain permit revisions that shall follow the administrative permit amendment procedures are:

(1) Activation of a compliance option conditionally approved by the permitting authority; provided that all requirements for activation under subpart D of this part are met;

(2) Changes in the designated representative or alternative designated representative; provided that a new certificate of representation is submitted;

(3) Correction of typographical errors;

(4) Changes in names, addresses, or telephone or facsimile numbers;

(5) Changes in the owners or operators; provided that a new certificate of representation is submitted within 30 days;

(6)(i) Termination of a compliance option in the permit; provided that all requirements for termination under subpart D of this part are met and this procedure shall not be used to terminate a repowering plan after December 31, 1999 or a Phase I extension plan;

(ii) For opt-in sources, termination of a compliance option in the permit; provided that all requirements for termination under §74.47 of this chapter are met.

(7) Changes in a substitution or reduced utilization plan that do not result in the addition of a new substitution unit or a new compensating unit under the plan;

(8) Changes in the date, specified in a unit's Acid Rain permit, of commencement of operation of qualifying Phase I technology, provided that they are in accordance with §72.42 of this part;

(9) Changes in the date, specified in a new unit's Acid Rain permit, of commencement of operation or the deadline for monitor certification, provided that they are in accordance with §72.9 of this part;

(10) The addition of or change in a nitrogen oxides alternative emissions limitation demonstration period, provided that the requirements of part 76 of this chapter are met; and

(11) Changes in a thermal energy plan that do not result in the addition or subtraction of a replacement unit or any change affecting the number of allowances transferred for the replacement of thermal energy.

(12) The addition of a NOX early election plan that was approved by the Administrator under §76.8 of this chapter;

(13) The addition of an exemption for which the requirements have been met under §72.7 or §72.8 and

(14) Incorporation of changes that the Administrator has determined to be similar to those in paragraphs (a)(1) through (13) of this section.

(b)(1) The permitting authority will take final action on an administrative permit amendment within 60 days, or, for the addition of an alternative emissions limitation demonstration period, within 90 days, of receipt of the requested amendment and may take such action without providing prior public notice. The source may implement any changes in the administrative permit amendment immediately upon submission of the requested amendment, provided that the requirements of paragraph (a) of this section are met.

(2) The permitting authority may, on its own motion, make an administrative permit amendment under paragraph (a)(3), (a)(4), (a)(12), or (a)(13) of this section at least 30 days after providing notice to the designated representative of the amendment and without providing any other prior public notice.

(c) The permitting authority will designate the permit revision under paragraph (b) of this section as having been made as an administrative permit amendment. Where a State is the permitting authority, the permitting authority shall submit the revised portion of the permit to the Administrator.

(d) An administrative amendment shall not be subject to the provisions for review by the Administrator and affected States applicable to a permit modification under §72.81.

[58 FR 3650, Jan. 11, 1993, as amended at 60 FR 17114, Apr. 4, 1995; 62 FR 55485, Oct. 24, 1997; 66 FR 12978, Mar. 1, 2001]

§ 72.84 Automatic permit amendment.
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The following permit revisions shall be deemed to amend automatically, and become a part of the affected unit's Acid Rain permit by operation of law without any further review:

(a) Upon recordation by the Administrator under part 73 of this chapter, all allowance allocations to, transfers to, and deductions from an affected unit's Allowance Tracking System account; and

(b) Incorporation of an offset plan that has been approved by the Administrator under part 77 of this chapter. (continued)