[Code of Federal Regulations]
[Title 40, Volume 14]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR72.72]
[Page 70-73]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 72--PERMITS REGULATION--Table of Contents
Subpart G--Acid Rain Phase II Implementation
Sec. 72.72 Criteria for State operating permit program.
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;
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(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 Sec. 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 Sec. 72.9(c)(1) and to meet
any applicable emission limitation for NOX under Secs. 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 Sec. 72.44, part 74 of this chapter, or
Sec. 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
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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 Sec. 72.73(b) and, with regard to
combustion or process sources, in Sec. 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 Sec. 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]
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(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 Sec. 72.73(b)(1) or, with regard to
combustion or process sources, Sec. 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]