[Code of Federal Regulations]
[Title 40, Volume 14]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR71.11]

[Page 285-292]
 
                   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. 71.11  Administrative record, public participation, and 
administrative review.

    The provisions of this section shall apply to all permit 
proceedings. Notwithstanding the preceding sentence,

[[Page 286]]

paragraphs (a) through (h) and paragraph (j) of this section shall not 
apply to permit revisions qualifying as minor permit modifications or 
administrative amendments, except that public notice of the granting of 
appeals of such actions under paragraph (l)(3) of this section shall be 
provided pursuant to paragraph (d)(1)(i)(E) of this section, and except 
that affected States shall be provided notice of minor permit 
modifications under Sec. 71.8 as pursuant to paragraph (d)(3)(i)(B) of 
this section.
    (a) Draft permits. (1) The permitting authority shall promptly 
provide notice to the applicant of whether the application is complete 
pursuant to Sec. 71.7(a)(3).
    (2) Once an application for an initial permit, permit revision, or 
permit renewal is complete, the permitting authority shall decide 
whether to prepare a draft permit or to deny the application.
    (3) If the permitting authority initially decides to deny the permit 
application, it shall issue a notice of intent to deny. A notice of 
intent to deny the permit application is a type of draft permit and 
follows the same procedures as any draft permit prepared under this 
section. If the permitting authority's final decision is that the 
initial decision to deny the permit application was incorrect, it shall 
withdraw the notice of intent to deny and proceed to prepare a draft 
permit under paragraph (a)(4) of this section.
    (4) If the permitting authority decides to prepare a draft permit, 
it shall prepare a draft permit that contains the permit conditions 
required under Sec. 71.6.
    (5) All draft permits prepared under this section shall be publicly 
noticed and made available for public comment.
    (b) Statement of basis. The permitting authority shall prepare a 
statement of basis for every draft permit subject to this section. The 
statement of basis shall briefly describe the derivation of the 
conditions of the draft permit and the reasons for them or, in the case 
of notices of intent to deny or terminate, reasons supporting the 
initial decision. The statement of basis shall be sent to the applicant 
and, on request, to any other person.
    (c) Administrative record for draft permits. (1) The provisions of a 
draft permit shall be based on the administrative record defined in this 
section.
    (2) For preparing a draft permit, the administrative record shall 
consist of:
    (i) The application and any supporting data furnished by the 
applicant;
    (ii) The draft permit or notice of intent to deny the application or 
to terminate the permit;
    (iii) The statement of basis;
    (iv) All documents cited in the statement of basis; and
    (v) Other documents contained in the supporting file for the draft 
permit.
    (3) Material readily available at the permitting authority or 
published material that is generally available, and that is included in 
the administrative record under paragraphs (b) and (c) of this section 
need not be physically included with the rest of the record as long as 
it is specifically referred to in the statement of basis.
    (d) Public notice of permit actions and public comment period--(1) 
Scope. (i) The permitting authority shall give public notice that the 
following actions have occurred:
    (A) A permit application has been initially denied under paragraph 
(a) of this section;
    (B) A draft permit has been prepared under paragraph (a) of this 
section;
    (C) A hearing has been scheduled under paragraph (f) of this 
section; and
    (D) A public comment period has been reopened under paragraph (h) of 
this section;
    (E) An appeal has been granted under paragraph (l)(3) of this 
section.
    (ii) No public notice is required when a request for permit 
revision, revocation and reissuance, or termination has been denied 
under paragraph (a)(2) of this section. Written notice of that denial 
shall be given to the requester and to the permittee.
    (iii) Public notices may describe more than one permit or permit 
action.
    (2) Timing. (i) Public notice of the preparation of a draft permit, 
(including a notice of intent to deny a permit application), shall allow 
at least 30 days for public comment.
    (ii) Public notice of a public hearing shall be given at least 30 
days before

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the hearing. Public notice of the hearing may be given at the same time 
as public notice of the draft permit and the two notices may be 
combined.
    (iii) The permitting authority shall provide such notice and 
opportunity for participation to affected States on or before the time 
that the permitting authority provides this notice to the public.
    (3) Methods. Public notice of activities described in paragraph 
(d)(1)(i) of this section shall be given by the following methods:
    (i) By mailing a copy of a notice to the following persons (any 
person otherwise entitled to receive notice under paragraph (d) of this 
section may waive his or her rights to receive notice for any permit):
    (A) The applicant;
    (B) Affected States;
    (C) Air pollution control agencies of affected States, Tribal and 
local air pollution control agencies which have jurisdiction over the 
area in which the source is located, the chief executives of the city 
and county where the source is located, any comprehensive regional land 
use planning agency and any State or Federal Land Manager whose lands 
may be affected by emissions from the source;
    (D) The local emergency planning committee having jurisdiction over 
the area where the source is located, and State agencies having 
authority under State law with respect to the operation of such source;
    (E) Persons on a mailing list developed by:
    (1) Including those who request in writing to be on the list;
    (2) Soliciting persons for ``area lists'' from participants in past 
permit proceedings in that area; and
    (3) Notifying the public of the opportunity to be put on the mailing 
list through periodic publication in the public press and, where deemed 
appropriate by the permitting authority, in such publications as 
regional and State funded newsletters, environmental bulletins, or State 
law journals. The permitting authority may update the mailing list from 
time to time by requesting written indication of continued interest from 
those listed. The permitting authority may delete from the list the name 
of any person who fails to respond to such a request.
    (ii) By publication of a notice in a daily or weekly newspaper of 
general circulation within the area affected by the source.
    (iii) By any other method reasonably calculated to give actual 
notice of the action in question to the persons potentially affected by 
it, including press releases or any other forum or medium to elicit 
public participation.
    (4) Contents--(i) All public notices. All public notices issued 
under this subpart shall contain the following minimum information:
    (A) The name and address of the permitting authority processing the 
permit;
    (B) The name and address of the permittee or permit applicant and, 
if different, of the facility regulated by the permit, except in the 
case of draft general permits;
    (C) The activity or activities involved in the permit action;
    (D) The emissions change involved in any permit revision;
    (E) The name, address, and telephone number of a person whom 
interested persons may contact for instructions on how to obtain 
additional information, such as a copy of the draft permit, the 
statement of basis, the application, relevant supporting materials, and 
other materials available to the permitting authority that are relevant 
to the permitting decision.
    (F) A brief description of the comment procedures required by 
paragraph (e) of this section, a statement of procedures to request a 
hearing (unless a hearing has already been scheduled) and other 
procedures by which the public may participate in the final permit 
decision;
    (G) The location of the administrative record, the times at which 
the record will be open for public inspection, and a statement that all 
data submitted by the applicant are available as part of the 
administrative record; and
    (H) Any additional information considered necessary or proper.
    (ii) Public notices for hearings. Public notice of a hearing may be 
combined with other notices required under paragraph (d)(1) of this 
section. Any public

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notice of a hearing under paragraph (f) of this section shall contain 
the following information:
    (A) The information described in paragraph (d)(4)(i) of this 
section;
    (B) Reference to the date of previous public notices relating to the 
permit;
    (C) The date, time, and place of the hearing; and
    (D) A brief description of the nature and purpose of the hearing, 
including the applicable rules and the comment procedures.
    (5) All persons identified in paragraphs (d)(3)(i) (A), (B), (C), 
(D), and (E) of this section shall be mailed a copy of the public 
hearing notice described in paragraph (d)(4)(ii) of this section.
    (e) Public comments and requests for public hearings. During the 
public comment period provided under paragraph (a) of this section, any 
interested person may submit written comments on the draft permit and 
may request a public hearing, if no hearing has already been scheduled. 
A request for a public hearing shall be in writing and shall state the 
nature of the issues proposed to be raised at the hearing. All comments 
shall be considered in making the final decision and shall be answered 
as provided in paragraph (j) of this section. The permitting authority 
will keep a record of the commenters and of the issues raised during the 
public participation process, and such records shall be available to the 
public.
    (f) Public hearings. (1) The permitting authority shall hold a 
hearing whenever it finds, on the basis of requests, a significant 
degree of public interest in a draft permit.
    (2) The permitting authority may also hold a public hearing at its 
discretion, whenever, for instance, such a hearing might clarify one or 
more issues involved in the permit decision.
    (3) Public notice of the hearing shall be given as specified in 
paragraph (d) of this section.
    (4) Whenever a public hearing is held, the permitting authority 
shall designate a Presiding Officer for the hearing who shall be 
responsible for its scheduling and orderly conduct.
    (5) Any person may submit oral or written statements and data 
concerning the draft permit. Reasonable limits may be set upon the time 
allowed for oral statements, and the submission of statements in writing 
may be required. The public comment period under paragraph (d) of this 
section shall be automatically extended to the close of any public 
hearing under this section. The hearing officer may also extend the 
comment period by so stating at the hearing.
    (6) A tape recording or written transcript of the hearing shall be 
made available to the public.
    (g) Obligation to raise issues and provide information during the 
public comment period. All persons, including applicants, who believe 
any condition of a draft permit is inappropriate or that the permitting 
authority's initial decision to deny an application, terminate a permit, 
or prepare a draft permit is inappropriate, must raise all reasonably 
ascertainable issues and submit all reasonably ascertainable arguments 
supporting their position by the close of the public comment period 
(including any public hearing). Any supporting materials that are 
submitted shall be included in full and may not be incorporated by 
reference, unless they are already part of the administrative record in 
the same proceeding, or consist of State or Federal statutes and 
regulations, EPA documents of general applicability, or other generally 
available reference materials. In the case of a program delegated 
pursuant to Sec. 71.10, if requested by the Administrator, the 
permitting authority shall make supporting materials not already 
included in the administrative record available to EPA. The permitting 
authority may direct commenters to provide such materials directly to 
EPA. A comment period longer than 30 days may be necessary to give 
commenters a reasonable opportunity to comply with the requirements of 
this section. Additional time shall be granted to the extent that a 
commenter who requests additional time demonstrates the need for such 
time.
    (h) Reopening of the public comment period. (1) The permitting 
authority may order the public comment period reopened if the procedures 
of paragraph (h) of this section could expedite the decision making 
process. When the public comment period is reopened under paragraph (h) 
of this section, all

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persons, including applicants, who believe any condition of a draft 
permit is inappropriate or that the permitting authority's initial 
decision to deny an application, terminate a permit, or prepare a draft 
permit is inappropriate, must submit all reasonably available factual 
grounds supporting their position, including all supporting material, by 
a date not less than 30 days after public notice under paragraph (h)(2) 
of this section, set by the permitting authority. Thereafter, any person 
may file a written response to the material filed by any other person, 
by a date, not less than 20 days after the date set for filing of the 
material, set by the permitting authority.
    (2) Public notice of any comment period under this paragraph (h) 
shall identify the issues to which the requirements of paragraphs (h)(1) 
through (4) of this section shall apply.
    (3) On its own motion or on the request of any person, the 
permitting authority may direct that the requirements of paragraph 
(h)(1) of this section shall apply during the initial comment period 
where it reasonably appears that issuance of the permit will be 
contested and that applying the requirements of paragraph (h)(1) of this 
section will substantially expedite the decision making process. The 
notice of the draft permit shall state whenever this has been done.
    (4) A comment period of longer than 30 days may be necessary in 
complicated proceedings to give commenters a reasonable opportunity to 
comply with the requirements of this section. Commenters may request 
longer comment periods and they may be granted to the extent the 
permitting authority finds it necessary.
    (5) If any data, information, or arguments submitted during the 
public comment period appear to raise substantial new questions 
concerning a permit, the permitting authority may take one or more of 
the following actions:
    (i) Prepare a new draft permit, appropriately modified;
    (ii) Prepare a revised statement of basis, and reopen the comment 
period; or
    (iii) Reopen or extend the comment period to give interested persons 
an opportunity to comment on the information or arguments submitted.
    (6) Comments filed during the reopened comment period shall be 
limited to the substantial new questions that caused the reopening. The 
public notice shall define the scope of the reopening.
    (7) Public notice of any of the above actions shall be issued under 
paragraph (d) of this section.
    (i) Issuance and effective date of permit. (1) After the close of 
the public comment period on a draft permit, the permitting authority 
shall issue a final permit decision. The permitting authority shall 
notify the applicant and each person who has submitted written comments 
or requested notice of the final permit decision. This notice shall 
include reference to the procedures for appealing a decision on a 
permit. For the purposes of this section, a final permit decision means 
a final decision to issue, deny, revise, revoke and reissue, renew, or 
terminate a permit.
    (2) A final permit decision shall become effective 30 days after the 
service of notice of the decision, unless:
    (i) A later effective date is specified in the decision;
    (ii) Review is requested under paragraph (l) of this section (in 
which case the specific terms and conditions of the permit which are the 
subject of the request for review shall be stayed); or
    (iii) No comments requested a change in the draft permit, in which 
case the permit shall become effective immediately upon issuance.
    (j) Response to comments. (1) At the time that any final permit 
decision is issued, the permitting authority shall issue a response to 
comments. This response shall:
    (i) Specify which provisions, if any, of the draft permit have been 
changed in the final permit decision, and the reasons for the change; 
and
    (ii) Briefly describe and respond to all significant comments on the 
draft permit raised during the public comment period, or during any 
hearing.
    (2) Any documents cited in the response to comments shall be 
included in the administrative record for the final permit decision as 
defined in paragraph (k) of this section. If new

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points are raised or new material supplied during the public comment 
period, the permitting authority may document its response to those 
matters by adding new materials to the administrative record.
    (3) The response to comments shall be available to the public.
    (4) The permitting authority will notify in writing any affected 
State of any refusal to accept recommendations for the permit that the 
State submitted during the public or affected State review period.
    (k) Administrative record for final permits. (1) The permitting 
authority shall base final permit decisions on the administrative record 
defined in paragraph (k)(2) of this section.
    (2) The administrative record for any final permit shall consist of:
    (i) All comments received during any public comment period, 
including any extension or reopening;
    (ii) The tape or transcript of any hearing(s) held;
    (iii) Any written material submitted at such a hearing;
    (iv) The response to comments and any new materials placed in the 
record;
    (v) Other documents contained in the supporting file for the permit;
    (vi) The final permit;
    (vii) The application and any supporting data furnished by the 
applicant;
    (viii) The draft permit or notice of intent to deny the application 
or to terminate the permit;
    (ix) The statement of basis for the draft permit;
    (x) All documents cited in the statement of basis;
    (xi) Other documents contained in the supporting file for the draft 
permit.
    (3) The additional documents required under paragraph (k)(2) of this 
section should be added to the record as soon as possible after their 
receipt or publication by the permitting authority. The record shall be 
complete on the date the final permit is issued.
    (4) Material readily available at the permitting authority, or 
published materials which are generally available and which are included 
in the administrative record under the standards of paragraph (j) of 
this section need not be physically included in the same file as the 
rest of the record as long as it is specifically referred to in the 
statement of basis or in the response to comments.
    (l) Appeal of permits. (1) Within 30 days after a final permit 
decision has been issued, any person who filed comments on the draft 
permit or participated in the public hearing may petition the 
Environmental Appeals Board to review any condition of the permit 
decision. Any person who failed to file comments or failed to 
participate in the public hearing on the draft permit may petition for 
administrative review only to the extent of the changes from the draft 
to the final permit decision or other new grounds that were not 
reasonably foreseeable during the public comment period on the draft 
permit. The 30-day period within which a person may request review under 
this section begins with the service of notice of the permitting 
authority's action unless a later date is specified in that notice, 
except that the 30-day period within which a person may request review 
of a minor permit modification or administrative amendment begins upon 
the effective date of such action to revise the permit. The petition 
shall include a statement of the reasons supporting that review, 
including a demonstration that any issues raised were raised during the 
public comment period (including any public hearing) to the extent 
required by these regulations unless the petitioner demonstrates that it 
was impracticable to raise such objections within such period or unless 
the grounds for such objection arose after such period, and, when 
appropriate, a showing that the condition in question is based on:
    (i) A finding of fact or conclusion of law which is clearly 
erroneous; or
    (ii) An exercise of discretion or an important policy consideration 
which the Environmental Appeals Board should, in its discretion, review.
    (2) The Board may also decide on its initiative to review any 
condition of any permit issued under this part. The Board must act under 
paragraph (l) of this section within 30 days of the service date of 
notice of the permitting authority's action.

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    (3) Within a reasonable time following the filing of the petition 
for review, the Board shall issue an order either granting or denying 
the petition for review. To the extent review is denied, the conditions 
of the final permit decision become final agency action. Public notice 
of any grant of review by the Board under paragraph (l)(1) or (2) of 
this section shall be given as provided in paragraph (d) of this 
section. Public notice shall set forth a briefing schedule for the 
appeal and shall state that any interested person may file an amicus 
brief. Notice of denial of review shall be sent only to the permit 
applicant and to the person(s) requesting review.
    (4) A petition to the Board under paragraph (l)(1) of this section 
is, under 42 U.S.C. 307(b), a prerequisite to seeking judicial review of 
the final agency action.
    (5) For purposes of judicial review, final agency action occurs when 
a final permit is issued or denied by the permitting authority and 
agency review procedures are exhausted. A final permit decision shall be 
issued by the permitting authority:
    (i) When the Board issues notice to the parties that review has been 
denied;
    (ii) When the Board issues a decision on the merits of the appeal 
and the decision does not include a remand of the proceedings; or
    (iii) Upon the completion of remand proceedings if the proceedings 
are remanded, unless the Board's remand order specifically provides that 
appeal of the remand decision will be required to exhaust administrative 
remedies.
    (6) Motions to reconsider a final order shall be filed within ten 
(10) days after service of the final order. Every such motion must set 
forth the matters claimed to have been erroneously decided and the 
nature of the alleged errors. Motions for reconsideration under this 
provision shall be directed to, and decided by, the Board. Motions for 
reconsideration directed to the Administrator, rather than to the Board, 
will not be considered, except in cases that the Board has referred to 
the Administrator and in which the Administrator has issued the final 
order. A motion for reconsideration shall not stay the effective date of 
the final order unless specifically so ordered by the Board.
    (7) Notice of any final agency action regarding a Federal operating 
permit shall promptly be published in the Federal Register.
    (m) Computation of time. (1) Any time period scheduled to begin on 
the occurrence of an act or event shall begin on the day after the act 
or event.
    (2) Any time period scheduled to begin before the occurrence of an 
act or event shall be computed so that the period ends on the day before 
the act or event, except as otherwise provided.
    (3) If the final day of any time period falls on a weekend or legal 
holiday, the time period shall be extended to the next working day.
    (4) Whenever a party or interested person has the right or is 
required to act within a prescribed period after the service of notice 
or other paper upon him or her by mail, 3 days shall be added to the 
prescribed time.
    (n) Public petitions to the Permitting Authority. (1) Any interested 
person (including the permittee) may petition the permitting authority 
to reopen a permit for cause, and the permitting authority may commence 
a permit reopening on its own initiative. However, the permitting 
authority shall not revise, revoke and reissue, or terminate a permit 
except for the reasons specified in Sec. 71.7(f)(1) or Sec. 
71.6(a)(6)(i). All requests shall be in writing and shall contain facts 
or reasons supporting the request.
    (2) If the permitting authority decides the request is not 
justified, it shall send the requester a brief written response giving a 
reason for the decision. Denials of requests for revision, revocation 
and reissuance, or termination are not subject to public notice, 
comment, or hearings. Denials by the permitting authority may be 
informally appealed to the Environmental Appeals Board by a letter 
briefly setting forth the relevant facts. The Board may direct the 
permitting authority to begin revision, revocation and reissuance, or 
termination proceedings under paragraph (n)(3) of this section. The 
appeal shall be considered denied if the Board takes no action within 60 
days after receiving it. This

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informal appeal is, under 42 U.S.C. 307, a prerequisite to seeking 
judicial review of EPA action in denying a request for revision, 
revocation and reissuance, or termination.
    (3) If the permitting authority decides the request is justified and 
that cause exists to revise, revoke and reissue or terminate a permit, 
it shall initiate proceedings to reopen the permit pursuant to Sec. 
71.7(f) or Sec. 71.7(g).

[61 FR 34228, July 1, 1996, as amended at 64 FR 8263, Feb. 19, 1999]