[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: 40CFR71.27]

[Page 302-307]
 
                   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. 71.27  Public participation and appeal.

    All permit proceedings, including preparation of draft permits, 
initial permit issuance, permit revisions, and granted appeals, shall 
provide adequate procedures for public participation, including notice, 
opportunity for comment, a hearing if requested, and administrative 
appeal. Specific procedures shall include the following:
    (a) Revision, revocation and reissuance, or termination of permits. 
(1) Permits may be revised, revoked and reissued, or terminated either 
at the request of any interested person (including the permittee) or 
upon the Administrator's initiative. However, permits may only be 
revised, revoked and reissued, or terminated for the reasons specified 
in Sec. Sec. 71.25(a)(7) and 71.26(e). All requests shall be in writing 
and shall contain facts or reasons supporting the request.
    (2) If the Administrator decides the request is not justified, he or 
she 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 Administrator may be informally appealed to the 
Environmental Appeals Board by a letter briefly setting forth the 
relevant facts. The Board may direct the Administrator to begin 
revision, revocation and reissuance, or termination proceedings under 
paragraph (a)(3) of this section. The appeal shall be considered denied 
if the Board takes no action within 60 days after receiving it. This 
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)(i) Except in the case of administrative amendment of a permit, 
if the Administrator tentatively decides to revise or revoke and reissue 
a permit under Sec. Sec. 71.25(a)(7) and 71.26(e), he or she shall 
prepare a draft permit under paragraph (b) of this section incorporating 
the proposed changes. The Administrator may request additional 
information and, in the case of a revised permit, shall require the 
submission of an updated application. In the case of revoked and 
reissued permits, the Administrator shall require the submission of a 
new application.
    (ii) In a permit revision under this subsection, only those 
conditions to be revised shall be reopened when a new draft permit is 
prepared. All other aspects of the existing permit shall remain in 
effect for the duration of the unrevised permit. When a permit is 
revoked and reissued under this subsection, the entire permit is 
reopened just as if the permit had expired and was being reissued. 
During any revocation and reissuance proceeding the permittee shall 
comply with all conditions of the existing permit until a new final 
permit is reissued.
    (4) If the Administrator tentatively decides to terminate a permit 
under Sec. Sec. 71.25(a)(7) and 71.26(e), he or she shall issue a 
notice of intent to terminate. A notice of intent to terminate is a type 
of draft permit which follows the same procedures as any draft permit 
prepared under paragraph (b) of this section. A notice of intent to 
terminate shall not be issued if the Administrator and the permittee 
agree to termination in the course of transferring permit responsibility 
to an approved State under Sec. 71.21(e).
    (5) Any request by the permittee for revision to an existing permit 
shall be treated as a permit application and shall be processed in 
accordance with all requirements of Sec. 71.24.
    (b) Draft permits. (1) Once an application is complete, the 
Administrator shall tentatively decide whether to prepare a draft permit 
or to deny the application.
    (2) If the Administrator tentatively decides to deny the permit 
application, he or she shall issue a notice of intent to deny. A notice 
of intent to deny the permit application is a type of draft permit which 
follows the same procedures as any draft permit prepared

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under this subsection. If the Administrator's final decision is that the 
tentative decision to deny the permit application was incorrect, he or 
she shall withdraw the notice of intent to deny and proceed to prepare a 
draft permit under paragraph (b)(4) of this section.
    (3) If the Administrator decides to prepare a draft permit, he or 
she shall prepare a draft permit that contains the permit conditions 
under Sec. 71.25.
    (4) All draft permits prepared under this subsection shall be 
publicly noticed and made available for public comment. The 
Administrator shall give notice of opportunity for a public hearing, 
issue a final decision and respond to comments. For all early reductions 
permits, an appeal may be taken under paragraph (l) of this section.
    (c) Statement of basis. The Administrator shall prepare a statement 
of basis for every draft permit. 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 tentative decision. The statement of 
basis shall be sent to the applicant and, on request, to any other 
person.
    (d) Public notice of permit actions and public comment period--(1) 
Scope. (i) The Administrator shall give public notice that the following 
actions have occurred:
    (A) A permit application has been tentatively denied under paragraph 
(b)(2) of this section;
    (B) A draft permit has been prepared under paragraph (b)(3) of this 
section;
    (C) A hearing has been scheduled under paragraph (f) of this 
section;
    (D) An appeal has been granted under paragraph (l)(3) of this 
section.
    (ii) No public notice is required in the case of administrative 
permit amendments, or 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 
or permit revision (including a notice of intent to deny a permit or 
permit revision 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 the hearing. (Public notice of the hearing may be given at 
the same time as public notice of the draft permit or permit revision 
and the two notices may be combined.)
    (iii) The Administrator shall provide such notice and opportunity 
for participation to Affected States on or before the time that the 
Administrator 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 this paragraph (d) may 
waive his or her rights to receive notice for any permit):
    (A) The applicant;
    (B) Any other agency which the Administrator knows has issued or is 
required to issue any other permit under the Clean Air Act for the same 
facility or activity;
    (C) Affected States and Indian Tribes;
    (D) Affected State and local air pollution control agencies, the 
chief executives of the city and county where the early reductions 
source is located, any comprehensive regional land use planning agency 
and any State, Federal Land Manager, or Indian Governing Body whose 
lands may be affected by emissions from the regulated activity;
    (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 in such 
publications as Regional and State funded newsletters, environmental 
bulletins, or State law journals. (The Administrator may update the 
mailing list from time to time by requesting written indication of 
continued interest from those listed. The Administrator may delete from

[[Page 304]]

the list the name of any person who fails to respond to such a 
request.);
    (F) Any unit of local government with authority for regulating air 
pollution and having jurisdiction over the area where the early 
reductions source is located and to each State agency having any 
authority for regulating air pollution under State law with respect to 
the operation of such source.
    (ii) By publication of a notice in a daily or weekly newspaper of 
general circulation within the area affected by the early reductions 
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 Administrator or the Administrator's 
designated agent processing the permit;
    (B) The name and address of the permittee or permit applicant and, 
if different, of the facility regulated by the permit;
    (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 from whom 
interested persons may obtain additional information, including copies 
of the draft permit, the application, all relevant supporting materials, 
and all other materials available to the Administrator that are relevant 
to the permit decision;
    (F) A brief description of the comment procedures required by 
paragraphs (e) and (f) of this section and the time and place of any 
hearing that will be held, including 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; and
    (G) Any additional information considered necessary or proper.
    (ii) Public notices for hearings. In addition to the general public 
notice described in paragraph (d)(4)(i) of this section, the public 
notice of a hearing under paragraph (f) of this section shall contain 
the following information:
    (A) Reference to the date of previous public notices relating to the 
permit;
    (B) Date, time, and place of the hearing; and
    (C) A brief description of the nature and purpose of the hearing, 
including the applicable rules and procedures.
    (5) In addition to the general public notice described in paragraph 
(d)(4)(i) of this section, all persons identified in paragraphs 
(d)(3)(i)(A), (B), and (C) of this section shall be mailed a copy of the 
fact sheet or statement of basis, the permit application (if any), and 
the draft permit (if any).
    (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 or 
permit revision 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 Administrator 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)(i) The Administrator shall hold a hearing 
whenever he or she finds, on the basis of requests, a significant degree 
of public interest in a draft permit or permit revision.
    (ii) The Administrator may also hold a public hearing at his or her 
discretion, whenever, for instance, such a hearing might clarify one or 
more issues involved in the permit decision.
    (iii) Public notice of the hearing shall be given as specified in 
paragraph (d) of this section.
    (2) Whenever a public hearing is held, the Administrator shall 
designate a Presiding Officer for the hearing who shall be responsible 
for its scheduling and orderly conduct.

[[Page 305]]

    (3) Any person may submit oral or written statements and data 
concerning the draft permit or permit revision. 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 subsection. The hearing officer 
may also extend the comment period by so stating at the hearing.
    (4) 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 
Administrator's tentative 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 which 
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. Commenters shall make supporting 
materials not already included in the administrative record available to 
EPA as directed by the Administrator. (A comment period longer than 30 
days may be necessary to give commenters a reasonable opportunity to 
comply with the requirements of this paragraph (g). 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)(i) The Administrator 
may order the public comment period reopened if the procedures of this 
paragraph (h) could expedite the decisionmaking process. When the public 
comment period is reopened under this paragraph (h), all persons, 
including applicants, who believe any condition of a draft permit is 
inappropriate or that the Administrator's tentative 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 60 days after public notice under paragraph (h)(1)(ii) of 
this section, set by the Administrator. 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 Administrator.
    (ii) Public notice of any comment period under this paragraph shall 
identify the issues to which the requirements of paragraph (h)(1)(i) of 
this section shall apply.
    (iii) On his or her own motion or on the request of any person, the 
Administrator may direct that the requirements of paragraph (h)(1)(i) 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)(i) of this section 
will substantially expedite the decisionmaking process. The notice of 
the draft permit shall state whenever this has been done.
    (iv) A comment period of longer than 60 days will often be necessary 
in complicated proceedings to give commenters a reasonable opportunity 
to comply with the requirements of this subsection. Commenters may 
request longer comment periods and they shall be granted to the extent 
they appear necessary.
    (2) If any data, information, or arguments submitted during the 
public comment period appear to raise substantial new questions 
concerning a permit, the Administrator may take one or more of the 
following actions:
    (i) Prepare a new draft permit, appropriately modified;
    (ii) Prepare a revised statement of basis, a fact sheet or revised 
fact sheet, and reopen the comment period; or

[[Page 306]]

    (iii) Reopen or extend the comment period to give interested persons 
an opportunity to comment on the information or arguments submitted.
    (3) Comments filed during the reopened comment period shall be 
limited to the substantial new questions that caused its reopening. The 
public notice shall define the scope of the reopening.
    (4) 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 Administrator shall 
issue a final permit decision. The Administrator 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 paragraph (i), a final permit decision means a 
final decision to issue, deny, revise, revoke and reissue, 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; or
    (ii) 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 Administrator 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 points are raised or 
new material supplied during the public comment period, EPA 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 Administrator 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 permit. (1) The Administrator 
shall base final permit decisions on the administrative record defined 
in this paragraph (k).
    (2) The administrative record for any final permit shall consist of:
    (i) All comments received during the 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 required by paragraph (j) of this 
section and any new materials placed in the record under paragraph (j) 
of this section;
    (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; and
    (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 EPA. The record shall be complete on the date 
the final permit is issued.
    (4) This section applies to all final permits.
    (5) Material readily available at the issuing Regional Office, or 
published materials which are generally available and which are included 
in the administrative record under the standards of paragraph (j) of 
this section

[[Page 307]]

(``response to comments''), 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 fact sheet 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. The 30-day period within which a person 
may request review under this subsection begins with the service of 
notice of the Administrator's action unless a later date is specified in 
that notice. 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 subpart. The Board must act 
under this paragraph within 30 days of the service date of notice of the 
Administrator's action.
    (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 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 the seeking of 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 EPA and agency review procedures 
are exhausted. A final permit decision shall be issued by the 
Administrator:
    (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) Neither the filing of a petition for review of any condition of 
the permit or permit decision nor the granting of an appeal by the 
Environmental Appeals Board shall stay the effect of any contested 
permit or permit condition.
    (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.