[Code of Federal Regulations]
[Title 40, Volume 13]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR71.4]

[Page 257-260]
 
                TITLE 40 - PROTECTION OF ENVIRONMENT
 
      CHAPTER I - ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 71 - FEDERAL OPERATING PERMIT PROGRAMS--Table of Contents
 
                   Subpart A - Operating Permits
 
Sec. 71.4  Program implementation.

    (a) Part 71 programs for States. The Administrator will administer 
and enforce a full or partial operating permits program for a State 
(excluding Indian country) in the following situations:
    (1) A program for a State meeting the requirements of part 70 of 
this chapter has not been granted full approval under Sec. 
70.4 of this chapter by the Administrator by July 31, 1996, and the 
State's part 70 program has not been granted interim approval under 
Sec. 70.4(d) of this chapter for a period extending beyond 
July 31, 1996. The effective date of such a part 71 program is July 31, 
1996.
    (2) An operating permits program for a State which was granted 
interim approval under Sec. 70.4(d) of this chapter has not 
been granted full approval by the Administrator by the expiration of the 
interim approval period or July 31, 1996, whichever is later. Such a 
part 71 program shall be effective upon expiration of the interim 
approval or July 31, 1996 whichever is later.
    (3) Any partial part 71 program will be effective only in those 
portions of a State that are not covered by a partial part 70 program 
that has been granted full or interim approval by the Administrator 
pursuant to Sec. 70.4(c) of this chapter.
    (b) Part 71 programs for Indian country. The Administrator will 
administer and enforce an operating permits program in Indian country, 
as defined in Sec. 71.2, when an operating permits program 
which meets the requirements of part 70 of this chapter has not been 
explicitly granted full or interim approval by the Administrator for 
Indian country.
    (1) [Reserved]
    (2) The effective date of a part 71 program in Indian country shall 
be March 22, 1999.

[[Page 258]]

    (3) Notwithstanding paragraph (i)(2) of this section, within 2 years 
of the effective date of the part 71 program in Indian country, the 
Administrator shall take final action on permit applications from part 
71 sources that are submitted within the first full year after the 
effective date of the part 71 program.
    (c) Part 71 programs imposed due to inadequate implementation. (1) 
The Administrator will administer and enforce an operating permits 
program for a permitting authority if the Administrator has notified the 
permitting authority, in accordance with Sec. 70.10(b)(1) of 
this chapter, of the Administrator's determination that a permitting 
authority is not adequately administering or enforcing its approved 
operating permits program, or any portion thereof, and the permitting 
authority fails to do either of the following:
    (i) Correct the deficiencies within 18 months after the 
Administrator issues the notice; or
    (ii) Take significant action to assure adequate administration and 
enforcement of the program within 90 days of the Administrator's notice.
    (2) The effective date of a part 71 program promulgated in 
accordance with this paragraph (c) shall be:
    (i) Two years after the Administrator's notice if the permitting 
authority has not corrected the deficiency within 18 months after the 
date of the Administrator's notice; or
    (ii) Such earlier time as the Administrator determines appropriate 
if the permitting authority fails, within 90 days of the Administrator's 
notice, to take significant action to assure adequate administration and 
enforcement of the program.
    (d) Part 71 programs for OCS sources. (1) Using the procedures of 
this part, the Administrator will issue permits to any source which is 
an outer continental shelf (OCS) source, as defined under Sec. 
55.2 of this chapter, is subject to the requirements of part 55 of this 
chapter and section 328(a) of the Act, is subject to the requirement to 
obtain a permit under title V of the Act, and is either:
    (i) Located beyond 25 miles of States' seaward 
boundaries; or
    (ii) Located within 25 miles of States' seaward 
boundaries and a part 71 program is being administered and enforced by 
the Administrator for the corresponding onshore area, as defined in 
Sec. 55.2 of this chapter, for that source.
    (2) The requirements of Sec. 71.4(d)(1)(i) shall apply on 
July 31, 1996.
    (3) The requirements of Sec. 71.4(d)(1)(ii) apply upon the 
effective date of a part 71 program for the corresponding onshore area.
    (e) Part 71 program for permits issued to satisfy an EPA objection. 
Using the procedures of this part and 40 CFR 70.8 (c) or (d), or 40 CFR 
70.7(g)(4) or (5) (i) and (ii), as appropriate, the Administrator will 
deny, terminate, revise, revoke or reissue a permit which has been 
proposed or issued by a permitting authority or will issue a part 71 
permit when:
    (1) A permitting authority with an approved part 70 operating 
permits program fails to respond to a timely objection to the issuance 
of a permit made by the Administrator pursuant to section 505(b) of the 
Act and Sec. 70.8(c) and (d) of this chapter.
    (2) The Administrator, under Sec. 70.7(g) of this chapter, 
finds that cause exists to reopen a permit and the permitting authority 
fails to either:
    (i) Submit to the Administrator a proposed determination of 
termination, modification, or revocation and reissuance, as appropriate; 
or
    (ii) Resolve any objection EPA makes to the permit which the 
permitting authority proposes to issue in response to EPA's finding of 
cause to reopen, and to terminate, revise, or revoke and reissue the 
permit in accordance with that objection.
    (3) The requirements of this paragraph (e) shall apply on July 31, 
1996.
    (f) Use of selected provisions of this part. The Administrator may 
utilize any or all of the provisions of this part to administer the 
permitting process for individual sources or take action on individual 
permits, or may adopt, through rulemaking, portions of a State or Tribal 
permit program in combination with provisions of this part to administer 
a Federal program for the State or in Indian country in substitution of 
or addition to the Federal program otherwise required by this part.

[[Page 259]]

    (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), (b), (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, publish notice in a newspaper of 
general circulation within the area subject to 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.
    (h) Effect of limited deficiency in the State or Tribal program. The 
Administrator may administer and enforce a part 71 program in a State or 
within Indian country even if only limited deficiencies exist either in 
the initial program submittal for a State or eligible Tribe under part 
70 of this chapter or in an existing State or Tribal program that has 
been approved under part 70 of this chapter.
    (i) Transition plan for initial permits issuance. If a full or 
partial part 71 program becomes effective in a State or within Indian 
country prior to the issuance of part 70 permits to all part 70 sources 
under an existing program that has been approved under part 70 of this 
chapter, the Administrator shall take final action on initial permit 
applications for all part 71 sources in accordance with the following 
transition plan.
    (1) All part 71 sources that have not received part 70 permits shall 
submit permit applications under this part within 1 year after the 
effective date of the part 71 program.
    (2) Final action shall be taken on at least one-third of such 
applications annually over a period not to exceed 3 years after such 
effective date.
    (3) Any complete permit application containing an early reduction 
demonstration under section 112(i)(5) of the Act shall be acted on 
within 12 months of receipt of the complete application.
    (4) Submittal of permit applications and the permitting of affected 
sources shall occur in accordance with the deadlines in title IV of the 
Act and 40 CFR parts 72 through 78.
    (j) Delegation of part 71 program. The Administrator may promulgate 
a part 71 program in a State or Indian country and delegate part of the 
responsibility for administering the part 71 program to the State or 
eligible Tribe in accordance with the provisions of Sec. 
71.10; however, delegation of a part of a part 71 program will not 
constitute any type of approval of a State or Tribal operating permits 
program under part 70 of this chapter. Where only selected portions of a 
part 71 program are administered by the Administrator and the State or 
eligible Tribe is delegated the remaining portions of the program, the 
Delegation Agreement referred to in Sec. 71.10 will define the 
respective roles of the State or eligible Tribe and the Administrator in 
administering and enforcing the part 71 operating permits program.
    (k) EPA administration and enforcement of part 70 permits. When the 
Administrator administers and enforces a part 71 program after a 
determination and notice under Sec. 70.10(b)(1) of this 
chapter that a State or Tribe is not adequately administering and 
enforcing an operating permits program approved under part 70 of this 
chapter, the Administrator will administer and enforce permits issued 
under the part 70 program until part 71 permits are issued using the 
procedures of part 71. Until such time as part 70 permits are replaced 
by part 71 permits, the Administrator will revise, reopen, revise, 
terminate, or revoke and reissue part 70 permits using the procedures of 
part 71 and will assess and collect fees in accordance with the 
provisions of Sec. 71.9.
    (l) Transition to approved part 70 program. The Administrator will 
suspend

[[Page 260]]

the issuance of part 71 permits promptly upon publication of notice of 
approval of a State or Tribal operating permits program that meets the 
requirements of part 70 of this chapter. The Administrator may retain 
jurisdiction over the part 71 permits for which the administrative or 
judicial review process is not complete and will address this issue in 
the notice of State program approval. After approval of a State or 
Tribal program and the suspension of issuance of part 71 permits by the 
Administrator:
    (1) The Administrator, or the permitting authority acting as the 
Administrator's delegated agent, will continue to administer and enforce 
part 71 permits until they are replaced by permits issued under the 
approved part 70 program. Until such time as part 71 permits are 
replaced by part 70 permits, the Administrator will revise, reopen, 
revise, terminate, or revoke and reissue part 71 permits using the 
procedures of the part 71 program. However, if the Administrator has 
delegated authority to administer part 71 permits to a delegate agency, 
the delegate agency will revise, reopen, terminate, or revoke and 
reissue part 71 permits using the procedures of the approved part 70 
program. If a part 71 permit expires prior to the issuance of a part 70 
permit, all terms and conditions of the part 71 permit, including any 
permit shield that may be granted pursuant to Sec. 71.6(f), 
shall remain in effect until the part 70 permit is issued or denied, 
provided that a timely and complete application for a permit renewal was 
submitted to the permitting authority in accordance with the 
requirements of the approved part 70 program.
    (2) A State or local agency or Indian Tribe with an approved part 70 
operating permits program may issue part 70 permits for all sources with 
part 71 permits in accordance with a permit issuance schedule approved 
as part of the approved part 70 program or may issue part 70 permits to 
such sources at the expiration of the part 71 permits.
    (m) Exemption for certain territories. Upon petition by the Governor 
of Guam, American Samoa, the Virgin Islands, or the Commonwealth of the 
Northern Marianas Islands, the Administrator may exempt any source or 
class of sources in such territory from the requirement to have a part 
71 permit under this chapter. Such an exemption does not exempt such 
source or class of sources from any requirement of section 112 of the 
Act, including the requirements of section 112 (g) or (j).
    (1) Such exemption may be granted if the Administrator finds that 
compliance with part 71 is not feasible or is unreasonable due to unique 
geographical, meteorological, or economic factors of such territory, or 
such other local factors as the Administrator deems significant. Any 
such petition shall be considered in accordance with section 307(d) of 
the Act, and any exemption granted under this paragraph (m) shall be 
considered final action by the Administrator for the purposes of section 
307(b) of the Act.
    (2) The Administrator shall promptly notify the Committees on Energy 
and Commerce and on Interior and Insular Affairs of the House of 
Representatives and the Committees on Environment and Public Works and 
on Energy and Natural Resources of the Senate upon receipt of any 
petition under this paragraph (m) and of the approval or rejection of 
such petition and the basis for such action.
    (n) Retention of records. The records for each draft, proposed, and 
final permit application, renewal, or modification shall be kept by the 
Administrator for a period of 5 years.

[61 FR 34228, July 1, 1996, as amended at 64 FR 8262, Feb. 19, 1999; 67 
FR 38330, June 3, 2002]