[Code of Federal Regulations]
[Title 40, Volume 12]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR70.6]

[Page 222-227]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 70--STATE OPERATING PERMIT PROGRAMS--Table of Contents
 
Sec. 70.6  Permit content.

    (a) Standard permit requirements. Each permit issued under this part 
shall include the following elements:
    (1) Emission limitations and standards, including those operational 
requirements and limitations that assure compliance with all applicable 
requirements at the time of permit issuance.
    (i) The permit shall specify and reference the origin of and 
authority for each term or condition, and identify any difference in 
form as compared to the applicable requirement upon which the term or 
condition is based.
    (ii) The permit shall state that, where an applicable requirement of 
the Act is more stringent than an applicable requirement of regulations 
promulgated under title IV of the Act, both provisions shall be 
incorporated into the permit and shall be enforceable by the 
Administrator.
    (iii) If an applicable implementation plan allows a determination of 
an alternative emission limit at a part 70 source, equivalent to that 
contained in the plan, to be made in the permit issuance, renewal, or 
significant modification process, and the State elects to use such 
process, any permit containing such equivalency determination shall 
contain provisions to ensure that any resulting emissions limit has been 
demonstrated to be quantifiable, accountable, enforceable, and based on 
replicable procedures.
    (2) Permit duration. The permitting authority shall issue permits 
for a fixed term of 5 years in the case of affected sources, and for a 
term not to exceed 5 years in the case of all other sources. 
Notwithstanding this requirement, the permitting authority shall issue 
permits for solid waste incineration units combusting municipal waste 
subject to standards under section 129(e) of the Act for a period not to 
exceed 12 years and shall review such permits at least every 5 years.
    (3) Monitoring and related recordkeeping and reporting requirements. 
(i) Each permit shall contain the following requirements with respect to 
monitoring:
    (A) All monitoring and analysis procedures or test methods required 
under applicable monitoring and testing requirements, including part 64 
of this

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chapter and any other procedures and methods that may be promulgated 
pursuant to sections 114(a)(3) or 504(b) of the Act. If more than one 
monitoring or testing requirement applies, the permit may specify a 
streamlined set of monitoring or testing provisions provided the 
specified monitoring or testing is adequate to assure compliance at 
least to the same extent as the monitoring or testing applicable 
requirements that are not included in the permit as a result of such 
streamlining;
    (B) Where the applicable requirement does not require periodic 
testing or instrumental or noninstrumental monitoring (which may consist 
of recordkeeping designed to serve as monitoring), periodic monitoring 
sufficient to yield reliable data from the relevant time period that are 
representative of the source's compliance with the permit, as reported 
pursuant to paragraph (a)(3)(iii) of this section. Such monitoring 
requirements shall assure use of terms, test methods, units, averaging 
periods, and other statistical conventions consistent with the 
applicable requirement. Recordkeeping provisions may be sufficient to 
meet the requirements of this paragraph (a)(3)(i)(B) of this section; 
and
    (C) As necessary, requirements concerning the use, maintenance, and, 
where appropriate, installation of monitoring equipment or methods.
    (ii) With respect to recordkeeping, the permit shall incorporate all 
applicable recordkeeping requirements and require, where applicable, the 
following:
    (A) Records of required monitoring information that include the 
following:
    (1) The date, place as defined in the permit, and time of sampling 
or measurements;
    (2) The date(s) analyses were performed;
    (3) The company or entity that performed the analyses;
    (4) The analytical techniques or methods used;
    (5) The results of such analyses; and
    (6) The operating conditions as existing at the time of sampling or 
measurement;
    (B) Retention of records of all required monitoring data and support 
information for a period of at least 5 years from the date of the 
monitoring sample, measurement, report, or application. Support 
information includes all calibration and maintenance records and all 
original strip-chart recordings for continuous monitoring 
instrumentation, and copies of all reports required by the permit.
    (iii) With respect to reporting, the permit shall incorporate all 
applicable reporting requirements and require the following:
    (A) Submittal of reports of any required monitoring at least every 6 
months. All instances of deviations from permit requirements must be 
clearly identified in such reports. All required reports must be 
certified by a responsible official consistent with Sec. 70.5(d) of this 
part.
    (B) Prompt reporting of deviations from permit requirements, 
including those attributable to upset conditions as defined in the 
permit, the probable cause of such deviations, and any corrective 
actions or preventive measures taken. The permitting authority shall 
define ``prompt'' in relation to the degree and type of deviation likely 
to occur and the applicable requirements.
    (4) A permit condition prohibiting emissions exceeding any 
allowances that the source lawfully holds under title IV of the Act or 
the regulations promulgated thereunder.
    (i) No permit revision shall be required for increases in emissions 
that are authorized by allowances acquired pursuant to the acid rain 
program, provided that such increases do not require a permit revision 
under any other applicable requirement.
    (ii) No limit shall be placed on the number of allowances held by 
the source. The source may not, however, use allowances as a defense to 
noncompliance with any other applicable requirement.
    (iii) Any such allowance shall be accounted for according to the 
procedures established in regulations promulgated under title IV of the 
Act.
    (5) A severability clause to ensure the continued validity of the 
various permit requirements in the event of a challenge to any portions 
of the permit.
    (6) Provisions stating the following:

[[Page 224]]

    (i) The permittee must comply with all conditions of the part 70 
permit. Any permit noncompliance constitutes a violation of the Act and 
is grounds for enforcement action; for permit termination, revocation 
and reissuance, or modification; or for denial of a permit renewal 
application.
    (ii) Need to halt or reduce activity not a defense. It shall not be 
a defense for a permittee in an enforcement action that it would have 
been necessary to halt or reduce the permitted activity in order to 
maintain compliance with the conditions of this permit.
    (iii) The permit may be modified, revoked, reopened, and reissued, 
or terminated for cause. The filing of a request by the permittee for a 
permit modification, revocation and reissuance, or termination, or of a 
notification of planned changes or anticipated noncompliance does not 
stay any permit condition.
    (iv) The permit does not convey any property rights of any sort, or 
any exclusive privilege.
    (v) The permittee shall furnish to the permitting authority, within 
a reasonable time, any information that the permitting authority may 
request in writing to determine whether cause exists for modifying, 
revoking and reissuing, or terminating the permit or to determine 
compliance with the permit. Upon request, the permittee shall also 
furnish to the permitting authority copies of records required to be 
kept by the permit or, for information claimed to be confidential, the 
permittee may furnish such records directly to the Administrator along 
with a claim of confidentiality.
    (7) A provision to ensure that a part 70 source pays fees to the 
permitting authority consistent with the fee schedule approved pursuant 
to Sec. 70.9 of this part.
    (8) Emissions trading. A provision stating that no permit revision 
shall be required, under any approved economic incentives, marketable 
permits, emissions trading and other similar programs or processes for 
changes that are provided for in the permit.
    (9) Terms and conditions for reasonably anticipated operating 
scenarios identified by the source in its application as approved by the 
permitting authority. Such terms and conditions:
    (i) Shall require the source, contemporaneously with making a change 
from one operating scenario to another, to record in a log at the 
permitted facility a record of the scenario under which it is operating;
    (ii) May extend the permit shield described in paragraph (f) of this 
section to all terms and conditions under each such operating scenario; 
and
    (iii) Must ensure that the terms and conditions of each such 
alternative scenario meet all applicable requirements and the 
requirements of this part.
    (10) Terms and conditions, if the permit applicant requests them, 
for the trading of emissions increases and decreases in the permitted 
facility, to the extent that the applicable requirements provide for 
trading such increases and decreases without a case-by-case approval of 
each emissions trade. Such terms and conditions:
    (i) Shall include all terms required under paragraphs (a) and (c) of 
this section to determine compliance;
    (ii) May extend the permit shield described in paragraph (f) of this 
section to all terms and conditions that allow such increases and 
decreases in emissions; and
    (iii) Must meet all applicable requirements and requirements of this 
part.
    (b) Federally-enforceable requirements. (1) All terms and conditions 
in a part 70 permit, including any provisions designed to limit a 
source's potential to emit, are enforceable by the Administrator and 
citizens under the Act.
    (2) Notwithstanding paragraph (b)(1) of this section, the permitting 
authority shall specifically designate as not being federally 
enforceable under the Act any terms and conditions included in the 
permit that are not required under the Act or under any of its 
applicable requirements. Terms and conditions so designated are not 
subject to the requirements of Secs. 70.7, 70.8, or of this part, other 
than those contained in this paragraph (b) of this section.
    (c) Compliance requirements. All part 70 permits shall contain the 
following elements with respect to compliance:
    (1) Consistent with paragraph (a)(3) of this section, compliance 
certification, testing, monitoring, reporting,

[[Page 225]]

and recordkeeping requirements sufficient to assure compliance with the 
terms and conditions of the permit. Any document (including reports) 
required by a part 70 permit shall contain a certification by a 
responsible official that meets the requirements of Sec. 70.5(d) for 
this part.
    (2) Inspection and entry requirements that require that, upon 
presentation of credentials and other documents as may be required by 
law, the permittee shall allow the permitting authority or an authorized 
representative to perform the following:
    (i) Enter upon the permittee's premises where a part 70 source is 
located or emissions-related activity is conducted, or where records 
must be kept under the conditions of the permit;
    (ii) Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of the permit;
    (iii) Inspect at reasonable times any facilities, equipment 
(including monitoring and air pollution control equipment), practices, 
or operations regulated or required under the permit; and
    (iv) As authorized by the Act, sample or monitor at reasonable times 
substances or parameters for the purpose of assuring compliance with the 
permit or applicable requirements.
    (3) A schedule of compliance consistent with Sec. 70.5(c)(8) of this 
part.
    (4) Progress reports consistent with an applicable schedule of 
compliance and Sec. 70.5(c)(8) of this part to be submitted at least 
semiannually, or at a more frequent period if specified in the 
applicable requirement or by the permitting authority. Such progress 
reports shall contain the following:
    (i) Dates for achieving the activities, milestones, or compliance 
required in the schedule of compliance, and dates when such activities, 
milestones or compliance were achieved; and
    (ii) An explanation of why any dates in the schedule of compliance 
were not or will not be met, and any preventive or corrective measures 
adopted.
    (5) Requirements for compliance certification with terms and 
conditions contained in the permit, including emission limitations, 
standards, or work practices. Permits shall include each of the 
following:
    (i) The frequency (not less than annually or such more frequent 
periods as specified in the applicable requirement or by the permitting 
authority) of submissions of compliance certifications;
    (ii) In accordance with Sec. 70.6(a)(3) of this part, a means for 
monitoring the compliance of the source with its emissions limitations, 
standards, and work practices;
    (iii) A requirement that the compliance certification include all of 
the following (provided that the identification of applicable 
information may cross-reference the permit or previous reports, as 
applicable):
    (A) The identification of each term or condition of the permit that 
is the basis of the certification;
    (B) The identification of the method(s) or other means used by the 
owner or operator for determining the compliance status with each term 
and condition during the certification period, and whether such methods 
or other means provide continuous or intermittent data. Such methods and 
other means shall include, at a minimum, the methods and means required 
under paragraph (a)(3) of this section. If necessary, the owner or 
operator also shall identify any other material information that must be 
included in the certification to comply with section 113(c)(2) of the 
Act, which prohibits knowingly making a false certification or omitting 
material information;
    (C) The status of compliance with the terms and conditions of the 
permit for the period covered by the certification, based on the method 
or means designated in paragraph (c)(5)(iii)(B) of this section. The 
certification shall identify each deviation and take it into account in 
the compliance certification. The certification shall also identify as 
possible exceptions to compliance any periods during which compliance is 
required and in which an excursion or exceedance as defined under part 
64 of this chapter occurred; and
    (D) Such other facts as the permitting authority may require to 
determine the compliance status of the source.
    (iv) A requirement that all compliance certifications be submitted 
to the Administrator as well as to the permitting authority.

[[Page 226]]

    (6) Such other provisions as the permitting authority may require.
    (d) General permits. (1) The permitting authority may, after notice 
and opportunity for public participation provided under Sec. 70.7(h) of 
this part, issue a general permit covering numerous similar sources. Any 
general permit shall comply with all requirements applicable to other 
part 70 permits and shall identify criteria by which sources may qualify 
for the general permit. To sources that qualify, the permitting 
authority shall grant the conditions and terms of the general permit. 
Notwithstanding the shield provisions of paragraph (f) of this section, 
the source shall be subject to enforcement action for operation without 
a part 70 permit if the source is later determined not to qualify for 
the conditions and terms of the general permit. General permits shall 
not be authorized for affected sources under the acid rain program 
unless otherwise provided in regulations promulgated under title IV of 
the Act.
    (2) Part 70 sources that would qualify for a general permit must 
apply to the permitting authority for coverage under the terms of the 
general permit or must apply for a part 70 permit consistent with 
Sec. 70.5 of this part. The permitting authority may, in the general 
permit, provide for applications which deviate from the requirements of 
Sec. 70.5 of this part, provided that such applications meet the 
requirements of title V of the Act, and include all information 
necessary to determine qualification for, and to assure compliance with, 
the general permit. Without repeating the public participation 
procedures required under Sec. 70.7(h) of this part, the permitting 
authority may grant a source's request for authorization to operate 
under a general permit, but such a grant shall not be a final permit 
action for purposes of judicial review.
    (e) Temporary sources. The permitting authority may issue a single 
permit authorizing emissions from similar operations by the same source 
owner or operator at multiple temporary locations. The operation must be 
temporary and involve at least one change of location during the term of 
the permit. No affected source shall be permitted as a temporary source. 
Permits for temporary sources shall include the following:
    (1) Conditions that will assure compliance with all applicable 
requirements at all authorized locations;
    (2) Requirements that the owner or operator notify the permitting 
authority at least 10 days in advance of each change in location; and
    (3) Conditions that assure compliance with all other provisions of 
this section.
    (f) Permit shield. (1) Except as provided in this part, the 
permitting authority may expressly include in a part 70 permit a 
provision stating that compliance with the conditions of the permit 
shall be deemed compliance with any applicable requirements as of the 
date of permit issuance, provided that:
    (i) Such applicable requirements are included and are specifically 
identified in the permit; or
    (ii) The permitting authority, in acting on the permit application 
or revision, determines in writing that other requirements specifically 
identified are not applicable to the source, and the permit includes the 
determination or a concise summary thereof.
    (2) A part 70 permit that does not expressly state that a permit 
shield exists shall be presumed not to provide such a shield.
    (3) Nothing in this paragraph or in any part 70 permit shall alter 
or affect the following:
    (i) The provisions of section 303 of the Act (emergency orders), 
including the authority of the Administrator under that section;
    (ii) The liability of an owner or operator of a source for any 
violation of applicable requirements prior to or at the time of permit 
issuance;
    (iii) The applicable requirements of the acid rain program, 
consistent with section 408(a) of the Act; or
    (iv) The ability of EPA to obtain information from a source pursuant 
to section 114 of the Act.
    (g) Emergency provision--(1) Definition. An ``emergency'' means any 
situation arising from sudden and reasonably unforeseeable events beyond 
the control of the source, including acts of God, which situation 
requires immediate corrective action to restore normal operation, and 
that causes the source to

[[Page 227]]

exceed a technology-based emission limitation under the permit, due to 
unavoidable increases in emissions attributable to the emergency. An 
emergency shall not include noncompliance to the extent caused by 
improperly designed equipment, lack of preventative maintenance, 
careless or improper operation, or operator error.
    (2) Effect of an emergency. An emergency constitutes an affirmative 
defense to an action brought for noncompliance with such technology-
based emission limitations if the conditions of paragraph (g)(3) of this 
section are met.
    (3) The affirmative defense of emergency shall be demonstrated 
through properly signed, contemporaneous operating logs, or other 
relevant evidence that:
    (i) An emergency occurred and that the permittee can identify the 
cause(s) of the emergency;
    (ii) The permitted facility was at the time being properly operated;
    (iii) During the period of the emergency the permittee took all 
reasonable steps to minimize levels of emissions that exceeded the 
emission standards, or other requirements in the permit; and
    (iv) The permittee submitted notice of the emergency to the 
permitting authority within 2 working days of the time when emission 
limitations were exceeded due to the emergency. This notice fulfills the 
requirement of paragraph (a)(3)(iii)(B) of this section. This notice 
must contain a description of the emergency, any steps taken to mitigate 
emissions, and corrective actions taken.
    (4) In any enforcement proceeding, the permittee seeking to 
establish the occurrence of an emergency has the burden of proof.
    (5) This provision is in addition to any emergency or upset 
provision contained in any applicable requirement.

[57 FR 32295, July 21, 1992, as amended at 62 FR 54946, Oct. 22, 1997; 
66 FR 12876, Mar. 1, 2001; 66 FR 55884, Nov. 5, 2001]