[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: 40CFR77.4]

[Page 464-468]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 77--EXCESS EMISSIONS--Table of Contents
 
Sec. 77.4  Administrator's action on proposed offset plans.

    (a) Determination of Completeness. The Administrator will determine 
whether the proposed offset plan is complete within 30 days of receipt 
by the Administrator. The offset plan shall be deemed complete if the 
Administrator fails to notify the designated representative to the 
contrary within 30 days of receipt or when the Administrator approves 
the offset plan and deducts allowances in accordance with paragraph 
(b)(1) of this section.
    (b) Review of proposed offset plans. (1) If the designated 
representative submits a complete proposed offset plan for immediate 
deduction, from the unit's compliance subaccount, of allowances required 
to offset excess emissions of sulfur dioxide, the Administrator will 
approve the proposed offset plan without further review and will serve 
written notice of any approval on the designated representative. The 
Administrator will also give notice of any approval in the Federal 
Register. The plans will be incorporated in the unit's Acid Rain permit 
in accordance with Sec. 72.84 of this chapter (automatic permit 
amendment) and will not be subject to the requirements of paragraphs (d) 
through (k) of this section.
    (2) Notwithstanding paragraph (b)(1) of this section, the 
Administrator may, in his or her discretion, require that the proposed 
offset plan under paragraph (b)(1) of this section be reviewed under 
paragraphs (c) through (k) of this section. The Administrator may 
exercise such discretion where he or she determines that review of the 
plan is necessary to ensure compliance with the emissions limitation and 
reduction

[[Page 465]]

goals or other purposes of title IV of the Act.
    (3) If the designated representative submits a complete proposed 
offset plan that does not meet the requirements of paragraph (b)(1) of 
this section, the Administrator will review the plan under paragraphs 
(c) through (k) of this section.
    (c) Supplemental Information. (1)(i) Regardless of whether the 
proposed offset plan is complete under paragraph (a) of this section, 
the Administrator may require submission of any additional information 
that the Administrator determines is necessary to approve an offset 
plan.
    (ii) Such supplemental information may include, but is not limited 
to:
    (A) A description of the measures that are proposed to be taken to 
ensure that the unit will have sufficient allowances to offset the 
excess emissions and to prevent excess emissions in future years;
    (B) A schedule of compliance with appropriate increments of progress 
for the proposed measures; and
    (C) A schedule for the submission of progress reports, and 
supporting documentation, describing actions taken and actions remaining 
to be taken under the schedule of compliance and any proposed 
adjustments to the schedule of compliance.
    (2)(i) The designated representative shall submit the information 
required under paragraph (c)(1) of this section within a reasonable 
period determined by the Administrator.
    (ii) If the designated representative fails to submit the 
supplemental information within the required time period, the 
Administrator may disapprove the proposed offset plan.
    (d) Draft Offset Plan. (1) After the Administrator receives a 
complete proposed offset plan and any supplemental information, the 
Administrator will prepare a draft offset plan that incorporates in 
whole, in part, or with changes or conditions as appropriate, the 
proposed offset plan or disapprove a draft offset plan for the affected 
unit. Regardless of whether the Administrator required the submission of 
the information set forth in paragraph (c)(1)(ii) of this section, the 
draft offset plan may include, among other requirements and conditions 
as determined to be appropriate by the Administrator, the submission of 
schedules of compliance, progress reports, and monitoring and other 
information.
    (2) The draft offset plan will be based on the information submitted 
by the designated representative for the affected unit and other 
relevant information.
    (3) The Administrator will serve a copy of the draft offset plan and 
the statement of basis on the designated representative of the affected 
unit.
    (4) The Administrator will provide a 30-day period for public 
comment, and opportunity to request a public hearing, on the draft 
offset plan or disapproval of a draft offset plan in accordance with the 
public notice required under paragraph (g)(1)(i)(A) of this section.
    (e) Offset Plan Administrative Record. (1) The Administrator will 
prepare an administrative record for an offset plan or disapproval of an 
offset plan. The administrative record will contain:
    (i) The proposed offset plan and any supporting or supplemental 
information submitted by the designated representative;
    (ii) The draft offset plan;
    (iii) The statement of basis;
    (iv) Copies of all documents relied on by the Administrator in 
approving or disapproving the draft offset plan (including any records 
of discussions or conferences with owners, operators or the designated 
representative of the unit or interested persons regarding the draft 
offset plan) or, for any such documents that are readily available, a 
statement of their location;
    (v) Copies of all written public comments submitted on the draft 
offset plan or disapproval of a draft offset plan;
    (vi) The record of any public hearing on the draft offset plan or 
disapproval of a draft offset plan;
    (vii) The offset plan approved by the Administrator; and
    (viii) Any response to public comments submitted on the draft offset 
plan or disapproval of a draft offset plan, including any documents 
cited in the response and any other documents relied on by the 
Administrator or, for any such documents that are readily

[[Page 466]]

available, a statement of their location.
    (2) The Administrator will approve or disapprove an offset plan 
within 6 months of receipt of a complete proposed offset plan.
    (f) Statement of Basis. (1) The statement of basis will briefly set 
forth significant factual, legal, and policy considerations on which the 
Administrator relied in approving or disapproving the draft offset plan.
    (2) The statement of basis will include:
    (i) The reasons, and supporting authority, for approval or 
disapproval of any proposed offset plan that does not require immediate 
deduction of allowances, including references to applicable statutory or 
regulatory provisions and to the administrative record; and
    (ii) The name, address, and telephone and facsimile number of the 
EPA office processing the approval or disapproval of the offset plan.
    (g) Opportunities for Public Comment on Draft Offset Plans.
    (1) Generally. (i) The Administrator will give public notice of the 
following:
    (A) The draft offset plan or disapproval of a draft offset plan and 
the opportunity for public comment and to request a public hearing; and
    (B) Date, time, location, and procedures for any scheduled hearing 
on the draft offset plan or the disapproval of a draft offset plan.
    (ii) Any public notice given under this section may be for the 
approval or disapproval of one or more draft offset plans.
    (2) Methods. The Administrator will give the public notice required 
by this section by:
    (i) Serving written notice on the following persons (except to the 
extent any such person has waived his or her right to receive such 
notice):
    (A) The designated representative;
    (B) The air pollution control agencies of affected States; and
    (C) Any interested person.
    (ii) Giving notice by publication in the Federal Register and in a 
newspaper of general circulation in the area where the unit is located 
or in a State publication designed to give general public notice.
    (3) Contents. All public notices issued under this part will contain 
the following information:
    (i) Identification of the EPA office processing the approval or 
disapproval of the draft offset plan for which the notice is being 
given.
    (ii) Identification of the designated representative for the 
affected unit.
    (iii) Identification of each affected unit covered by the proposed 
offset plan.
    (iv) The amount of excess emissions that must be offset and the date 
on which the allowances are proposed to be deducted.
    (v) 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 pursuant to section 114(c) of the Act is 
available for public inspections as part of the administrative record.
    (vi) For public notice under paragraph (g)(1)(i)(A) of this section, 
a brief description of the public comment procedures, including:
    (A) A 30-day public comment period 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;
    (B) The address where public comments should be sent;
    (C) Required formats and contents for public comment;
    (D) 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
    (E) Any other means by which the public may participate.
    (4) Extensions and Reopenings of the Public Comment Period. On the 
Administrator's own motion, or on the request for 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 offset plan or

[[Page 467]]

disapproval of a draft offset plan. Notice of any such extension or 
reopening will be given under paragraph (g)(1)(i)(A) of this section.
    (h) Public comments. (1) General. During the public comment period, 
any person may submit written comments on the draft offset plan or 
disapproval of a draft offset plan.
    (2) Form. (i) Comments shall be submitted in duplicate.
    (ii) The submission shall clearly indicate the draft offset plan 
approval or disapproval to which the comments apply.
    (iii) The submission shall clearly indicate the name of the 
commenter, his or her interest, and his or her affiliation, if any, to 
owners and operators of any unit covered by the proposed offset plan.
    (3) Contents. Timely comments on any aspect of a draft offset plan 
or disapproval of a draft offset plan will be considered unless they 
concern issues that are not relevant, such as:
    (i) The environmental effects of acid rain, acid deposition, sulfur 
dioxide, or nitrogen oxides generally; and
    (ii) Offset plan approval procedures or actions on other proposed 
offset plans that are not relevant to approval or disapproval of the 
draft offset plan in question.
    (4) Persons who do not wish to raise issues on the draft offset plan 
or denial of a draft offset plan, but who wish to be notified of any 
subsequent actions concerning such matter, may so indicate during the 
public comment period or at any other time. The Administrator will place 
their names on a list of interested persons.
    (i) Opportunity for Public Hearing. (1) 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.
    (2) On the Administrator's own motion or on the request of any 
person, the Administrator may, at his or her discretion, hold a public 
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 offset plan or disapproval of a 
draft offset plan. Public hearings will not be held on issues under 
paragraphs (h)(3) (i) and (ii) of this section.
    (3) During a public hearing under this section, any person may 
submit oral or written comments concerning the draft offset plan or 
disapproval of a draft offset plan. The Administrator may set reasonable 
limits on the time allowed for oral statements and will require the 
submission of written summaries of each oral statement.
    (4) The Administrator will assure that a record is made of the 
hearing.
    (j) Response to Comments. (1) The Administrator will consider 
comments on the draft offset plan or disapproval of a draft offset plan 
received during the public comment period and any public hearing. The 
Administrator is not required to consider comments otherwise received.
    (2) In approving or disapproving an offset plan, the Administrator 
will:
    (i) Identify any draft offset plan provision or portion of the 
statement of basis that has been changed and the reasons for the change; 
and
    (ii) Briefly describe and respond to relevant comments under 
paragraph (j)(1) of this section.
    (k) Approval and Effective Date of Excess Emissions Offset Plans. 
(1) After the close of the public comment period, the Administrator will 
approve an offset plan requiring allowance deductions in an amount equal 
to the unit's tons of excess emissions or disapprove an offset plan. The 
Administrator will serve a copy of any approved offset plan and the 
response to comments on the designated representative for the affected 
unit involved and serve written notice of the approval or disapproval of 
the offset plan on any persons who are entitled to written notice under 
paragraphs (g)(2)(i) (B) and (C) of this section or who submitted 
written or oral comments on the approval or disapproval of the draft 
offset plan. The Administrator will also give notice in the Federal 
Register.
    (2) The Administrator will approve an offset plan requiring 
immediate deduction from the unit's compliance subaccount of all 
allowances necessary to offset the excess emissions except to the extent 
the designated representative of the unit demonstrates that such

[[Page 468]]

a deduction will interfere with electric reliability.
    (3) Upon approval of the offset plan by the Administrator, the 
offset plan will be incorporated into the Acid Rain permit in accordance 
with Sec. 72.84 (automatic permit amendment) and shall supersede any 
inconsistent provision of the permit.

[58 FR 3757, Jan. 11, 1993, as amended at 62 FR 55487, Oct. 24, 1997; 62 
FR 66279, Dec. 18, 1997]