[Code of Federal Regulations]
[Title 40, Volume 15]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR71.10]

[Page 284-285]
 
                   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. 71.10  Delegation of part 71 program.

    (a) Delegation of part 71 program. The Administrator may delegate, 
in whole or in part, with or without signature authority, the authority 
to administer a part 71 operating permits program to a State, eligible 
Tribe, local, or other non-State agency in accordance with the 
provisions of this section. In order to be delegated authority to 
administer a part 71 program, the delegate agency must submit a legal 
opinion from the Attorney General from the State, or the attorney for 
the State, local, interstate, or eligible Tribal agency that has 
independent legal counsel, stating that the laws of the State, locality, 
interstate compact or Indian Tribe provide adequate authority to carry 
out all aspects of the delegated program. A Delegation of Authority 
Agreement (Agreement) shall set forth the terms and conditions of the 
delegation, shall specify the provisions that the delegate agency shall 
be authorized to implement, and shall be entered into by the 
Administrator and the delegate agency. The Agreement shall become 
effective upon the date that both the Administrator and the delegate 
agency have signed the Agreement. Once delegation becomes effective, the 
delegate agency will be responsible, to the extent specified in the 
Agreement, for administering the part 71 program for the area subject to 
the Agreement.
    (b) Publication of Notice of Delegation of Authority Agreement. The 
Administrator shall publish a notice in the Federal Register informing 
the public of any delegation of a portion of the part 71 program to a 
State, eligible Tribe, or local agency.
    (c) Revision or revocation of Delegation of Authority Agreement. An 
Agreement may be modified, amended, or revoked, in part or in whole, by 
the Administrator after consultation with the delegate agency.
    (d) Transmission of information to the Administrator. (1) When a 
part 71 program has been delegated in accordance with the provisions of 
this section, the delegate agency shall provide to the Administrator a 
copy of each permit application (including any application for permit 
modification), each proposed permit, and each final part 71 permit. The 
applicant may be required by the delegate agency to provide a copy of 
the permit application (including the compliance plan) directly to the 
Administrator. Upon agreement with the Administrator, the delegate 
agency may submit to the Administrator a permit application summary form 
and any relevant portion of the permit application and compliance plan, 
in place of the complete permit application and compliance plan. To the 
extent practicable, the preceding information shall be provided in 
computer-readable format compatible with EPA's national database 
management system.
    (2) The Administrator may waive the requirements of paragraph (d)(1) 
of this section for any category of sources (including any class, type, 
or size within such category) other than major sources by regulation for 
a category of sources nationwide.
    (e) Retention of records. The records for each draft, proposed, and 
final permit, and application for permit renewal or modification shall 
be kept for a period of 5 years by the delegate agency. The delegate 
agency shall also submit to the Administrator such information as the 
Administrator may reasonably require to ascertain whether the delegate 
agency is implementing, administering, and enforcing

[[Page 285]]

the delegated part 71 program in compliance with the requirements of the 
Act and of this part.
    (f) Prohibition of default issuance. (1) For the purposes of Federal 
law and title V of the Act, when a part 71 program has been delegated in 
accordance with the provisions of this section, no part 71 permit 
(including a permit renewal or modification) will be issued until 
affected States have had an opportunity to review the draft permit as 
required pursuant to Sec. 71.8(a) and EPA has had an opportunity to 
review the proposed permit.
    (2) To receive delegation of signature authority, the legal opinion 
submitted by the delegate agency pursuant to paragraph (a) of this 
section shall certify that no applicable provision of State, local or 
Tribal law requires that a part 71 permit or renewal be issued after a 
certain time if the delegate agency has failed to take action on the 
application (or includes any other similar provision providing for 
default issuance of a permit), unless EPA has waived such review for EPA 
and affected States.
    (g) EPA objection. (1) The Administrator will object to the issuance 
of any proposed permit determined by the Administrator not to be in 
compliance with applicable requirements or requirements under this part. 
No permit for which an application must be transmitted to the 
Administrator under paragraph (d)(1) of this section shall be issued if 
the Administrator objects to its issuance in writing within 45 days of 
receipt of the proposed permit and all necessary supporting information. 
When a part 71 program has been delegated in accordance with the 
provisions of this section, failure of the delegate agency to do any of 
the following shall constitute grounds for an objection by the 
Administrator:
    (i) Comply with paragraph (d) of this section;
    (ii) Submit any information necessary to review adequately the 
proposed permit;
    (iii) Process the permit under the procedures required by Sec. Sec. 
71.7 and 71.11; or
    (iv) Comply with the requirements of Sec. 71.8(a).
    (2) Any EPA objection under paragraph (g)(1) of this section shall 
include a statement of the Administrator's reason(s) for objection and a 
description of the terms and conditions that the permit must include to 
respond to the objection. The Administrator will provide the permit 
applicant a copy of the objection.
    (3) If the delegate agency fails, within 90 days after the date of 
an objection under paragraph (g)(1) of this section, to revise and 
submit to the Administrator the proposed permit in response to the 
objection, the Administrator shall issue or deny the permit in 
accordance with the requirements of this part.
    (h) Public petitions. In the case of a delegated program, any 
interested person may petition the Administrator to reopen a permit for 
cause as provided in Sec. 71.11(n).
    (i) Appeal of permits. When a part 71 program has been delegated 
with signature authority in accordance with the provisions of this 
section, any person or affected State that submitted recommendations or 
comments on the draft permit, or that participated in the public hearing 
process may petition the Environmental Appeals Board in accordance with 
Sec. 71.11(l)(1).
    (j) Nondelegable conditions. (1) The Administrator's authority to 
object to the issuance of a part 71 permit cannot be delegated to an 
agency not within EPA.
    (2) The Administrator's authority to act upon petitions submitted 
pursuant to paragraph (h) of this section cannot be delegated to an 
agency not within EPA.