[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: 40CFR71.7]

[Page 274-279]
 
                   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. 71.7  Permit issuance, renewal, reopenings, and revisions.

    (a) Action on application. (1) A permit, permit modification, or 
renewal may be issued only if all of the following conditions have been 
met:
    (i) The permitting authority has received a complete application for 
a permit, permit modification, or permit renewal, except that a complete 
application need not be received before issuance of a general permit 
under Sec. 71.6(d);
    (ii) Except for modifications qualifying for minor permit 
modification procedures under paragraphs (e) (1) and (2) of this 
section, the permitting authority has complied with the requirements for 
public participation under this section or Sec. 71.11, as applicable;
    (iii) The permitting authority has complied with the requirements 
for notifying and responding to affected States under Sec. 71.8(a);
    (iv) The conditions of the permit provide for compliance with all 
applicable requirements and the requirements of this part; and
    (v) In the case of a program delegated pursuant to Sec. 71.10, the 
Administrator has received a copy of the proposed permit and any notices 
required under Sec. 71.10(d) and has not objected to issuance of the 
permit under Sec. 71.10(g) within the time period specified therein.
    (2) Except as provided under the initial transition plan provided 
for under Sec. 71.4(i) or under 40 CFR part 72 or title V of the Act 
for the permitting of affected sources under the acid rain program, the 
permitting authority shall take final action on each permit application 
(including a request for permit modification or renewal) within 18 
months after receiving a complete application.
    (3) The permitting authority shall ensure that priority is given to 
taking action on applications for construction

[[Page 275]]

or modification under title I, parts C and D of the Act.
    (4) The permitting authority shall promptly provide notice to the 
applicant of whether the application is complete. Unless the permitting 
authority requests additional information or otherwise notifies the 
applicant of incompleteness within 60 days of receipt of an application, 
the application shall be deemed complete. For modifications processed 
through minor permit modification procedures, such as those in 
paragraphs (e) (1) and (2) of this section, the permitting authority 
need not make a completeness determination.
    (5) The permitting authority shall provide a statement that sets 
forth the legal and factual basis for the draft permit conditions 
(including references to the applicable statutory or regulatory 
provisions). The permitting authority shall send this statement to any 
person who requests it, and to EPA, in the case of a program delegated 
pursuant to Sec. 71.10.
    (6) The submittal of a complete application shall not affect the 
requirement that any source have a preconstruction permit under title I 
of the Act.
    (b) Requirement for a permit. Except as provided in the following 
sentence, Sec. 71.6(a)(13), and paragraphs (e)(1)(v) and e(2)(v) of 
this section, no part 71 source may operate after the time that it is 
required to submit a timely and complete application under this part, 
except in compliance with a permit issued under this part. If a part 71 
source submits a timely and complete application for permit issuance 
(including for renewal), the source's failure to have a part 71 permit 
is not a violation of this part until the permitting authority takes 
final action on the permit application, except as noted in this section. 
This protection shall cease to apply if, subsequent to the completeness 
determination made pursuant to paragraph (a)(4) of this section, and as 
required by Sec. 71.5(c), the applicant fails to submit by the deadline 
specified in writing by the permitting authority any additional 
information identified as being needed to process the application.
    (c) Permit renewal and expiration. (1) (i) Permits being renewed are 
subject to the same procedural requirements, including those for public 
participation, affected State review, and EPA review (in the case of a 
program delegated pursuant to Sec. 71.10) that apply to initial permit 
issuance.
    (ii) Permit expiration terminates the source's right to operate 
unless a timely and complete renewal application has been submitted 
consistent with paragraph (b) of this section and Sec. 71.5(a)(1)(iii).
    (2) In the case of a program delegated pursuant to Sec. 71.10, if 
the permitting authority fails to act in a timely way on permit renewal, 
EPA may invoke its authority under section 505(e) of the Act to 
terminate or revoke and reissue the permit.
    (3) If a timely and complete application for a permit renewal is 
submitted, consistent with Sec. 71.5(a)(2), but the permitting 
authority has failed to issue or deny the renewal permit before the end 
of the term of the previous part 70 or 71 permit, then the permit shall 
not expire until the renewal permit has been issued or denied and any 
permit shield that may be granted pursuant to Sec. 71.6(f) may extend 
beyond the original permit term until renewal; or all the terms and 
conditions of the permit including any permit shield that may be granted 
pursuant to Sec. 71.6(f) shall remain in effect until the renewal 
permit has been issued or denied.
    (d) Administrative permit amendments. (1) An ``administrative permit 
amendment'' is a permit revision that:
    (i) Corrects typographical errors;
    (ii) Identifies a change in the name, address, or phone number of 
any person identified in the permit, or provides a similar minor 
administrative change at the source;
    (iii) Requires more frequent monitoring or reporting by the 
permittee;
    (iv) Allows for a change in ownership or operational control of a 
source where the permitting authority determines that no other change in 
the permit is necessary, provided that a written agreement containing a 
specific date for transfer of permit responsibility, coverage, and 
liability between the current and new permittee has been submitted to 
the permitting authority;
    (v) Incorporates into the part 71 permit the requirements from

[[Page 276]]

preconstruction review permits authorized under an EPA-approved program, 
provided that such a program meets procedural requirements substantially 
equivalent to the requirements of Sec. Sec. 71.7 and 71.8 (and Sec. 
71.10 in the case of a delegated program) that would be applicable to 
the change if it were subject to review as a permit modification, and 
compliance requirements substantially equivalent to those contained in 
Sec. 71.6; or
    (vi) Incorporates any other type of change which the Administrator 
has determined to be similar to those in paragraphs (d)(1)(i) through 
(iv) of this section.
    (2) Administrative permit amendments for purposes of the acid rain 
portion of the permit shall be governed by 40 CFR part 72.
    (3) Administrative permit amendment procedures. An administrative 
permit amendment may be made by the permitting authority consistent with 
the following:
    (i) The permitting authority shall take no more than 60 days from 
receipt of a request for an administrative permit amendment to take 
final action on such request, and may incorporate such changes without 
providing notice to the public or affected States provided that it 
designates any such permit revisions as having been made pursuant to 
this paragraph.
    (ii) The permitting authority shall submit a copy of the revised 
permit to the Administrator in the case of a program delegated pursuant 
to Sec. 71.10.
    (iii) The source may implement the changes addressed in the request 
for an administrative amendment immediately upon submittal of the 
request.
    (4) The permitting authority may, upon taking final action granting 
a request for an administrative permit amendment, allow coverage by the 
permit shield in Sec. 71.6(f) for administrative permit amendments made 
pursuant to paragraph (d)(1)(v) of this section which meet the relevant 
requirements of Sec. Sec. 71.6, 71.7, and 71.8 for significant permit 
modifications.
    (e) Permit modifications. A permit modification is any revision to a 
part 71 permit that cannot be accomplished under the provisions for 
administrative permit amendments under paragraph (d) of this section. A 
permit modification for purposes of the acid rain portion of the permit 
shall be governed by 40 CFR part 72.
    (1) Minor permit modification procedures.
    (i) Criteria.
    (A) Minor permit modification procedures may be used only for those 
permit modifications that:
    (1) Do not violate any applicable requirement;
    (2) Do not involve significant changes to existing monitoring, 
reporting, or recordkeeping requirements in the permit;
    (3) Do not require or change a case-by-case determination of an 
emission limitation or other standard, or a source-specific 
determination for temporary sources of ambient impacts, or a visibility 
or increment analysis;
    (4) Do not seek to establish or change a permit term or condition 
for which there is no corresponding underlying applicable requirement 
and that the source has assumed to avoid an applicable requirement to 
which the source would otherwise be subject. Such terms and conditions 
include:
    (i) A federally enforceable emissions cap assumed to avoid 
classification as a modification under any provision of title I; and
    (ii) An alternative emissions limit approved pursuant to regulations 
promulgated under section 112(i)(5) of the Act;
    (5) Are not modifications under any provision of title I of the Act; 
and
    (6) Are not required to be processed as a significant modification.
    (B) Notwithstanding paragraphs (e)(1)(i)(A) and (e)(2)(i) of this 
section, minor permit modification procedures may be used for permit 
modifications involving the use of economic incentives, marketable 
permits, emissions trading, and other similar approaches, to the extent 
that such minor permit modification procedures are explicitly provided 
for in an applicable implementation plan or in applicable requirements 
promulgated by EPA.
    (ii) Application. An application requesting the use of minor permit 
modification procedures shall meet the requirements of Sec. 71.5(c) and 
shall include the following:

[[Page 277]]

    (A) A description of the change, the emissions resulting from the 
change, and any new applicable requirements that will apply if the 
change occurs;
    (B) The source's suggested draft permit;
    (C) Certification by a responsible official, consistent with Sec. 
71.5(d), that the proposed modification meets the criteria for use of 
minor permit modification procedures and a request that such procedures 
be used; and
    (D) Completed forms for the permitting authority to use to notify 
affected States (and the Administrator in the case of a program 
delegated pursuant to Sec. 71.10) as required under Sec. Sec. 71.8 and 
71.10(d).
    (iii) EPA and affected State notification. Within 5 working days of 
receipt of a complete permit modification application, the permitting 
authority shall meet its obligation under Sec. 71.8(a) to notify 
affected States (and its obligation under Sec. 71.10(d) to notify the 
Administrator in the case of a program delegated pursuant to Sec. 
71.10) of the requested permit modification. In the case of a program 
delegated pursuant to Sec. 71.10, the permitting authority promptly 
shall send any notice required under Sec. 71.8(b) to the Administrator.
    (iv) Timetable for issuance. In the case of a program delegated 
pursuant to Sec. 71.10, the permitting authority may not issue a final 
permit modification until after EPA's 45-day review period or until EPA 
has notified the permitting authority that EPA will not object to 
issuance of the permit modification, whichever is first, although the 
permitting authority can approve the permit modification prior to that 
time. Within 90 days of the permitting authority's receipt of an 
application under minor permit modification procedures (or 15 days after 
the end of the Administrator's 45-day review period under Sec. 71.10(g) 
in the case of a program delegated pursuant to Sec. 71.10, whichever is 
later), the permitting authority shall:
    (A) Issue the permit modification as proposed;
    (B) Deny the permit modification application;
    (C) Determine that the requested modification does not meet the 
minor permit modification criteria and should be reviewed under the 
significant modification procedures; or
    (D) Revise the draft permit modification (and, in the case of a 
program delegated pursuant to Sec. 71.10, transmit to the Administrator 
the new proposed permit modification as required by Sec. 71.10(d)).
    (v) Source's ability to make change. The source may make the change 
proposed in its minor permit modification application immediately after 
it files such application. After the source makes the change allowed by 
the preceding sentence, and until the permitting authority takes any of 
the actions specified in paragraphs (e)(1)(iv) (A) through (C) of this 
section, the source must comply with both the applicable requirements 
governing the change and the proposed permit terms and conditions. 
During this time period, the source need not comply with the existing 
permit terms and conditions it seeks to modify. However, if the source 
fails to comply with its proposed permit terms and conditions during 
this time period, the existing permit terms and conditions it seeks to 
modify may be enforced against it.
    (vi) Permit shield. The permit shield under Sec. 71.6(f) may not 
extend to minor permit modifications.
    (2) Group processing of minor permit modifications. Consistent with 
this paragraph, the permitting authority may modify the procedure 
outlined in paragraph (e)(1) of this section to process groups of a 
source's applications for certain modifications eligible for minor 
permit modification processing.
    (i) Criteria. Group processing of modifications may be used only for 
those permit modifications:
    (A) That meet the criteria for minor permit modification procedures 
under paragraph (e)(1)(i)(A) of this section; and
    (B) That collectively are below the threshold level of 10 percent of 
the emissions allowed by the permit for the emissions unit for which the 
change is requested, 20 percent of the applicable definition of major 
source in Sec. 71.2, or 5 tpy, whichever is least.
    (ii) Application. An application requesting the use of group 
processing procedures shall meet the requirements

[[Page 278]]

of Sec. 71.5(c) and shall include the following:
    (A) A description of the change, the emissions resulting from the 
change, and any new applicable requirements that will apply if the 
change occurs.
    (B) The source's suggested draft permit.
    (C) Certification by a responsible official, consistent with Sec. 
71.5(d), that the proposed modification meets the criteria for use of 
group processing procedures and a request that such procedures be used.
    (D) A list of the source's other pending applications awaiting group 
processing, and a determination of whether the requested modification, 
aggregated with these other applications, equals or exceeds the 
threshold set under paragraph (e)(2)(i)(B) of this section.
    (E) Certification, consistent with Sec. 71.5(d), that, in the case 
of a program delegated pursuant to Sec. 71.10, the source has notified 
EPA of the proposed modification. Such notification need only contain a 
brief description of the requested modification.
    (F) Completed forms for the permitting authority to use to notify 
affected States as required under Sec. 71.8 (and the Administrator as 
required under Sec. 71.10(d) in the case of a program delegated 
pursuant to Sec. 71.10).
    (iii) EPA and affected State notification. On a quarterly basis or 
within 5 business days of receipt of an application demonstrating that 
the aggregate of a source's pending applications equals or exceeds the 
threshold level set under paragraph (e)(2)(i)(B) of this section, 
whichever is earlier, the permitting authority promptly shall meet its 
obligation under Sec. 71.8(a) to notify affected States (and its 
obligation under Sec. 71.10(d) to notify EPA in the case of a program 
delegated pursuant to Sec. 71.10) of the requested permit modification. 
The permitting authority shall send any notice required under Sec. 
71.8(b) to the Administrator in the case of a program delegated pursuant 
to Sec. 71.10.
    (iv) Timetable for issuance. The provisions of paragraph (e)(1)(iv) 
of this section shall apply to modifications eligible for group 
processing, except that the permitting authority shall take one of the 
actions specified in paragraphs (e)(1)(iv) (A) through (D) of this 
section within 180 days of receipt of the application (or, in the case 
of a program delegated pursuant to Sec. 71.10, 15 days after the end of 
the Administrator's 45-day review period under Sec. 71.10(g), whichever 
is later).
    (v) Source's ability to make change. The provisions of paragraph 
(e)(1)(v) of this section shall apply to modifications eligible for 
group processing.
    (vi) Permit shield. The provisions of paragraph (e)(1)(vi) of this 
section shall also apply to modifications eligible for group processing.
    (3) Significant modification procedures--(i) Criteria. Significant 
modification procedures shall be used for applications requesting permit 
modifications that do not qualify as minor permit modifications or as 
administrative amendments. Every significant change in existing 
monitoring permit terms or conditions and every relaxation of reporting 
or recordkeeping permit terms or conditions shall be considered 
significant. Nothing herein shall be construed to preclude the permittee 
from making changes consistent with this part that would render existing 
permit compliance terms and conditions irrelevant.
    (ii) Significant permit modifications shall meet all requirements of 
this part, including those for applications, public participation, 
review by affected States, and review by EPA (in the case of a program 
delegated pursuant to Sec. 71.10), as they apply to permit issuance and 
permit renewal. The permitting authority shall design and implement this 
review process to complete review on the majority of significant permit 
modifications within 9 months after receipt of a complete application.
    (f) Reopening for cause. (1) Each issued permit shall include 
provisions specifying the conditions under which the permit will be 
reopened prior to the expiration of the permit. A permit shall be 
reopened and revised under any of the following circumstances:
    (i) Additional applicable requirements under the Act become 
applicable to a major part 71 source with a remaining permit term of 3 
or more years. Such a reopening shall be completed not later than 18 
months after

[[Page 279]]

promulgation of the applicable requirement. No such reopening is 
required if the effective date of the requirement is later than the date 
on which the permit is due to expire, unless the original permit or any 
of its terms and conditions have been extended pursuant to paragraph 
(c)(3) of this section.
    (ii) Additional requirements (including excess emissions 
requirements) become applicable to an affected source under the acid 
rain program. Upon approval by the Administrator, excess emissions 
offset plans shall be deemed to be incorporated into the permit.
    (iii) The permitting authority (or EPA, in the case of a program 
delegated pursuant to Sec. 71.10) determines that the permit contains a 
material mistake or that inaccurate statements were made in establishing 
the emissions standards or other terms or conditions of the permit.
    (iv) The permitting authority (or EPA, in the case of a program 
delegated pursuant to Sec. 71.10) determines that the permit must be 
revised or revoked to assure compliance with the applicable 
requirements.
    (2) Proceedings to reopen and issue a permit shall follow the same 
procedures as apply to initial permit issuance and shall affect only 
those parts of the permit for which cause to reopen exists, and shall be 
made as expeditiously as practicable.
    (3) Reopenings under paragraph (f)(1) of this section shall not be 
initiated before a notice of such intent is provided to the part 71 
source by the permitting authority at least 30 days in advance of the 
date that the permit is to be reopened, except that the permitting 
authority may provide a shorter time period in the case of an emergency.
    (g) Reopenings for cause by EPA for delegated programs. (1) In the 
case of a program delegated pursuant to Sec. 71.10, if the 
Administrator finds that cause exists to terminate, modify, or revoke 
and reissue a permit pursuant to paragraph (f) of this section, the 
Administrator will notify the permitting authority and the permittee of 
such finding in writing.
    (2) The permitting authority shall, within 90 days after receipt of 
such notification, forward to EPA a proposed determination of 
termination, modification, or revocation and reissuance, as appropriate. 
The Administrator may extend this 90-day period for an additional 90 
days if he or she finds that a new or revised permit application is 
necessary or that the permitting authority must require the permittee to 
submit additional information.
    (3) The Administrator will review the proposed determination from 
the permitting authority within 90 days of receipt.
    (4) The permitting authority shall have 90 days from receipt of an 
EPA objection to resolve any objection that EPA makes and to terminate, 
modify, or revoke and reissue the permit in accordance with the 
Administrator's objection.
    (5) If the permitting authority fails to submit a proposed 
determination pursuant to paragraph (g)(2) of this section or fails to 
resolve any objection pursuant to paragraph (g)(4) of this section, the 
Administrator will terminate, modify, or revoke and reissue the permit 
after taking the following actions:
    (i) Providing at least 30 days' notice to the permittee in writing 
of the reasons for any such action. This notice may be given during the 
procedures in paragraphs (g) (1) through (4) of this section.
    (ii) Providing the permittee an opportunity for comment on the 
Administrator's proposed action and an opportunity for a hearing.