[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: 40CFR71.25]

[Page 295-299]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 71_FEDERAL OPERATING PERMIT PROGRAMS--Table of Contents
 
             Subpart B_Permits for Early Reductions Sources
 
Sec. 71.25  Permit content.

    (a) Standard permit requirements. Each permit issued under this 
subpart shall include the following elements:
    (1) Alternative emission limitation. An annual alternative emission 
limitation for hazardous air pollutants from the early reductions source 
reflecting the 90 percent reduction (95 percent for hazardous air 
pollutants which are particulate matter) which qualified the early 
reductions source for a compliance extension under subpart D of part 63 
of this chapter.
    (2) Additional limitations. Additional emission limiting 
requirements, such

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as limitations on operation, work practice standards, and any other 
emission limiting requirements for the early reductions source necessary 
to assure compliance with the alternative emission limitation.
    (3) Monitoring requirements. Each permit shall contain the following 
monitoring requirements:
    (i) All emissions monitoring and analysis procedures or test methods 
necessary to assure compliance with the emission limitations established 
under paragraphs (a)(1) and (a)(2) of this section. Such monitoring or 
testing shall be consistent with the demonstration made pursuant to 
Sec. 63.74 of this chapter and any procedures and methods promulgated 
pursuant to sections 114(a)(3) or 504(b) of the Act;
    (ii) Periodic monitoring or testing sufficient to yield reliable 
data from the relevant time period that are representative of the early 
reductions source's compliance with the permit. Such monitoring 
requirements shall assure use of terms, test methods, units, averaging 
periods, and other statistical conventions consistent with the 
demonstration made pursuant to Sec. 63.74 of this chapter. 
Recordkeeping provisions may be sufficient to meet the requirements of 
this paragraph (a)(3)(ii); and
    (iii) As necessary, requirements concerning the use, maintenance, 
and, where appropriate, installation of monitoring equipment or methods.
    (4) Recordkeeping requirements. The permit shall contain 
recordkeeping requirements including the following, as applicable:
    (i) Records of required monitoring information that include the 
following:
    (A) The date, place as defined in the permit, and time of sampling 
or measurements;
    (B) The date(s) analyses were performed;
    (C) The company or entity that performed the analyses;
    (D) The analytical techniques or methods used;
    (E) The results of such analyses; and
    (F) The operating conditions as existing at the time of sampling or 
measurement;
    (ii) 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.
    (5) Reporting requirements. The permit shall require the following:
    (i) Submittal of reports of all required monitoring at least every 6 
months. All instances of deviations from permit requirements must be 
clearly identified in such reports; and
    (ii) Prompt reporting of any deviations from permit requirements, 
including those attributable to upset conditions as defined in the 
permit. Such reports shall include the probable cause of such deviations 
and any corrective actions or preventive measures taken. The 
Administrator will define ``prompt'' in the permit for each situation 
and will do so in relation to the degree and type of deviation likely to 
occur.
    (6) 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.
    (7) Provisions stating the following:
    (i) The permittee must comply with all conditions of part 71 permit 
issued under this subpart. A violation of an alternative emission 
limitation, as well as any other requirement established in a permit 
issued under this subpart, is enforceable pursuant to the authority of 
section 113 of the Act, notwithstanding any demonstration of continuing 
90 percent (95 percent in the case of hazardous air pollutants which are 
particulates) emission reduction over the entire early reductions 
source. Any permit noncompliance constitutes a violation of the Act and 
is grounds for enforcement action or for permit termination, revocation 
and reissuance, or modification;
    (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;

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    (iii) The permit may be revised, revoked, reopened, and reissued, or 
terminated for cause. The filing of a request by the permittee for a 
permit revision, 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; and
    (v) The permittee shall furnish to the Administrator, within a 
reasonable time, any information that the Administrator may request in 
writing to determine whether cause exists for revising the permit, 
revoking and reissuing, or terminating the permit or to determine 
compliance with the permit. Upon request, the permittee shall also 
furnish to the Administrator copies of records required to be kept by 
the permitee.
    (8) Terms and conditions for reasonably anticipated operating 
scenarios identified by the early reductions source in its application 
as approved by the Administrator. Such terms and conditions:
    (i) Shall require the early reductions 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. Provided that an emitting unit is monitored in a way 
that provides contemporaneous identification that a change to a 
particular alternate scenario has occurred, no notice to the 
Administrator is required. Otherwise, when such a change is made, the 
permittee at the beginning of the following week shall place in regular 
mail to the Administrator notice that a change to a particular alternate 
operating scenario has occurred; and
    (ii) Must ensure that the terms and conditions of each such 
alternative scenario meet the alternative emission limitation and the 
requirements of this subpart.
    (9) Terms and conditions, if the permit applicant requests them, for 
the trading of hazardous air pollutant emissions increases and decreases 
among emissions units within the early reductions source without permit 
revision or case-by-case approval of each emissions trade, provided 
that:
    (i) Such terms and conditions include all terms required under 
paragraphs (a) and (c) of this section to determine compliance;
    (ii) The changes in hazardous air pollutant emissions do not exceed 
the emissions allowable under the permit;
    (iii) The changes in hazardous air pollutant emissions are not 
modifications under any provision of title I of the Act;
    (iv) The Administrator determines that the emissions are 
quantifiable and that replicable procedures or other practical means 
exist to enforce the emission trades; and
    (v) The early reductions source owner or operator provides the 
Administrator written notification at least 7 days in advance of the 
proposed changes and includes in the notification a description of the 
change in emissions that will occur, when the change will occur, and how 
the increases and decreases in emissions will comply with the 
alternative emission limitation and other terms and conditions of the 
permit.
    (b) Federally enforceable requirements. All terms and conditions in 
a permit issued under this subpart are enforceable by the Administrator 
and citizens under the Act.
    (c) Compliance requirements. All permits issued under this subpart 
shall contain the following elements with respect to compliance:
    (1) Consistent with paragraphs (a)(3), (a)(4), and (a)(5) of this 
section, testing, monitoring, recordkeeping, and reporting requirements 
sufficient to assure compliance with the terms and conditions of the 
permit. Any document (including reports) required to be submitted by a 
permit shall contain a certification by a responsible official that 
meets the requirements of Sec. 71.24(f).
    (2) Inspection and entry provisions that require that, upon 
presentation of credentials and other documents as may be required by 
law, the permittee shall allow the Administrator or an authorized 
representative to perform the following:
    (i) Enter upon the permittee's premises where the early reductions 
source is located or emissions-related activity

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is conducted, or where required records are kept;
    (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) Sample or monitor at reasonable times substances or parameters 
for the purpose of determining compliance with the permit.
    (3) Requirements for compliance certification with terms and 
conditions contained in the permit, including the alternative emission 
limitation. Permits shall include each of the following:
    (i) The frequency (not less than annually) of submissions of 
compliance certifications;
    (ii) Consistent with paragraph (a)(3) of this section, a means for 
monitoring the compliance of the early reductions source with its 
alternative emission limitation;
    (iii) A requirement that the compliance certification include the 
following:
    (A) The identification of each term or condition of the permit that 
is the basis of the certification;
    (B) The compliance status;
    (C) Whether compliance was continuous or intermittent;
    (D) The method(s) used for determining the compliance status of the 
early reductions source, currently and over the reporting period 
consistent with paragraph (a)(3) of this section; and
    (E) Such other facts as the Administrator may require to determine 
the compliance status of the early reductions source;
    (iv) A requirement that all compliance certifications be submitted 
to the Administrator or the Administrator's designated agent; and
    (v) Such additional requirements as may be specified pursuant to 
sections 114(a)(3) and 504(b) of the Act.
    (4) Such other provisions as the Administrator may require.
    (d) Permit shield. (1) The Administrator will expressly include in a 
permit issued pursuant to this subpart a provision stating that 
compliance with the conditions of the permit shall be deemed compliance 
with part 63, subpart D, of this chapter (the Early Reductions Rule), as 
of the date of permit issuance.
    (2) A permit shield may be extended to all permit terms and 
conditions for alternate operating scenarios pursuant to paragraph 
(a)(9) of this section or that allow increases and decreases in 
hazardous air pollutant emissions pursuant to paragraph (a)(10) of this 
section.
    (3) Nothing in this paragraph (d) or in any permit issued pursuant 
to this subpart shall alter or affect the following:
    (i) The provisions of sections 112(r) and 303 of the Act (emergency 
orders);
    (ii) The liability of an owner or operator of an early reductions 
source for any violation of applicable requirements prior to or at the 
time of permit issuance; or
    (iii) The ability of the Administrator to obtain information from an 
early reductions source pursuant to section 114 of the Act.
    (e) Emergency provision--(1) Definition. An ``emergency'' means any 
situation arising from sudden and reasonably unforeseeable events beyond 
the control of the early reductions source, including acts of God, which 
situation requires immediate corrective action to restore normal 
operation, and that causes the early reductions source to exceed an 
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 an emission 
limitation if the conditions of paragraph (e)(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:

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    (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 limitation, or other requirements in the permit; and
    (iv) The permittee submitted notice of the emergency to the 
Administrator within 2 working days of the time when emission 
limitations were exceeded due to the emergency. This notice fulfills the 
requirement of paragraph (a)(5)(ii) 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.