[Code of Federal Regulations]

[Title 40, Volume 9]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR63.94]



[Page 113-116]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 63_NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR 

SOURCE CATEGORIES--Table of Contents

 

     Subpart E_Approval of State Programs and Delegation of Federal 

                               Authorities

 

Sec.  63.94  Approval of State permit terms and conditions that substitute 

for a section 112 rule.



    Under this section a State may seek approval of State permit terms 

and conditions to be implemented and enforced in lieu of specified 

existing and future Federal section 112 rules, emission standards, or 

requirements promulgated under section 112, for those affected sources 

permitted by the State under part 70 of this chapter. The State may not 

seek approval under this section for permit terms and conditions that 

implement and enforce part 68 requirements.

    (a) Up-front approval process.(1) A State must submit a request that 

meets the requirements of paragraph (b) of this section. After receiving 

a complete request for approval of a State program under this section 

and making a preliminary determination of equivalence, the Administrator 

will



[[Page 114]]



seek public comment for 21 days through a Federal Register notice. The 

Administrator will require that comments be submitted concurrently to 

the State.

    (2) If, after review of all public comments, and State responses to 

comments submitted to the Administrator, the Administrator finds that 

the criteria of paragraph (b) of this section and the criteria of Sec.  

63.91 are met, the Administrator will approve the State program. The 

approved program will be published in the Federal Register and 

incorporated directly or by reference in the appropriate subpart of part 

63.

    (3) If the Administrator finds that any of the criteria of paragraph 

(b) of this section or Sec.  63.91 have not been met, the Administrator 

will partially approve or disapprove the State program. For any partial 

approvals or disapprovals, the Administrator will provide the State with 

the basis for the partial approval or disapproval and what action the 

State can take to make the programs approvable.

    (4) Within 90 days of receiving a complete request for approval 

under this section, the Administrator will either approve, partially 

approve, or disapprove the State request.

    (b) Criteria for up-front approval. Any request for program approval 

under this section shall meet all of the criteria of this paragraph and 

Sec.  63.91 before approval. The State shall provide the Administrator 

with:

    (1)(i) To the extent possible, an identification of all specific 

sources in source categories listed pursuant to subsection 112(c) for 

which the State is seeking authority to implement and enforce 

alternative requirements under this section;

    (ii) If the identified sources in any source category comprise a 

subset of the sources in that category within the State's jurisdiction, 

the State shall request delegation for the remainder of the sources in 

that category that are required to be permitted by the State under part 

70 of this chapter. The State shall request delegation for the remainder 

of the sources in that category under another section of this subpart.

    (iii) Prior to submitting a request for one or more sources within a 

source category, the State shall consult with their EPA Regional Office 

regarding the number of sources in a category eligible for submittal 

under this option. Based on the Regional Office's decision, the State 

shall limit the number of sources for which it submits permit 

requirements.

    (2) To the extent possible, an identification of all existing and 

future section 112 emission standards for which the State is seeking 

authority under this section to implement and enforce alternative 

requirements.

    (3) If, after approval of the initial list of source categories 

identified in paragraph (b)(2) of this section, the State adds source 

categories for approval under this option, the State shall submit an 

addendum to the up-front approval submission, and identify the addition 

to the lists. The Administrator will follow the process outlined in 

paragraph (a) of this section for up-front approval.

    (4) A one-time demonstration that the State has an approved title V 

operating permit program and that the program permits the affected 

sources.

    (c) Approval process for alternative requirements. (1) After 

promulgation of a Federal section 112 rule, emission standard, or 

requirement for which the State has up-front approval to implement and 

enforce alternative requirements in the form of title V permit terms and 

conditions, the State shall provide the Administrator with pre-draft 

title V permit terms and conditions that are sufficient, in the 

Administrator's judgement, to allow the Administrator to determine 

equivalency. The permit terms and conditions shall reflect all of the 

requirements of the otherwise applicable Federal section 112 rule, 

emission standard, or requirement.

    (2) [Reserved]

    (3) If, the Administrator receives a complete request and finds the 

pre-draft title V permit terms and conditions submitted by the State 

meet the criteria of paragraph (d), the Administrator will approve the 

State's alternative requirements (by approving the pre-draft permit 

terms and conditions) and notify the State in writing of the approval.



[[Page 115]]



    (4) The Administrator may approve the State's alternative 

requirements on the condition that the State makes certain changes to 

the pre-draft title V permit terms and conditions and includes the 

changes in the complete pre-draft, proposed, and final title V permits 

for the affected sources. If the Administrator approves the alternative 

requirements on the condition that the State makes certain changes to 

them, the State shall make those changes or the alternative requirements 

will not be federally enforceable when they are included in the final 

permit, even if the Administrator does not object to the proposed 

permit. Until the Administrator affirmatively approves the State's 

alternative requirements (by approving the pre-draft permit terms and 

conditions) under this paragraph, and those requirements (permit terms) 

are incorporated into the final title V permit for any affected source, 

the otherwise applicable Federal emission standard(s) remain the 

federally enforceable and applicable requirements for that source.

    (5) If, after evaluating the pre-draft title V permit terms and 

conditions that were submitted by the State, the Administrator finds 

that the criteria of paragraph (d) of this section have not been met, 

the Administrator will disapprove the State's alternative requirements 

and notify the State in writing of the disapproval. In the notice of 

disapproval, the Administrator will specify the deficient or 

nonapprovable elements of the State's alternative requirements.

    (6) Within 90 days of receiving a complete request for approval 

under this paragraph, the Administrator will either approve, partially 

approve, or disapprove the State's alternative requirements.

    (7) Nothing in this section precludes the State from submitting 

alternative requirements in the form of title V permit terms and 

conditions or title V general permit terms and conditions for approval 

under this paragraph at the same time the State submits its program to 

the Administrator for up-front approval under paragraph (a) of this 

section, provided that the Federal emission standards for which the 

State submits alternative requirements are promulgated at the time of 

the State's submittal. If the Administrator finds that the criteria of 

Sec.  63.91 and the criteria of paragraphs (b) and (d) of this section 

are met, the Administrator will approve both the State program and the 

permit terms and conditions within 90 days of receiving a complete 

request for approval.

    (d) Approval criteria for alternative requirements.Any request for 

approval under this paragraph shall meet the following criteria. Taken 

together, the criteria in this paragraph describe the minimum contents 

of a State's equivalency demonstration for a promulgated Federal section 

112 rule, emission standard, or requirement. To be approvable, the State 

submittal must contain sufficient detail to allow the Administrator to 

make a determination of equivalency between the State's alternative 

requirements and the Federal requirements. Each submittal of alternative 

requirements in the form of pre-draft permit terms and conditions for an 

affected source shall:

    (1) Identify the specific, practicably enforceable terms and 

conditions with which the source would be required to comply upon 

issuance, renewal, or revision of the title V permit. The State shall 

submit permit terms and conditions that reflect all of the requirements 

of the otherwise applicable Federal section 112 rule, emission standard, 

or requirement. The State shall identify for the Administrator the 

specific permit terms and conditions that contain alternative 

requirements.

    (2) Identify specifically how the alternative requirements in the 

form of permit terms and conditions are the same as or differ from the 

requirements in the otherwise applicable Federal section 112 rule, 

emission standard, or requirement (including any applicable requirements 

in subpart A or other subparts or appendices). The State shall provide 

this identification in a side-by-side comparison of the State's 

requirements in the form of permit terms and conditions and the 

requirements of the Federal section 112 rule, emission standard, or 

requirement.



[[Page 116]]



    (3) The State shall provide the Administrator with detailed 

documentation that demonstrates that the alternative requirements meet 

the criteria specified in Sec.  63.93(b), i.e., that the alternative 

requirements are at least as stringent as the otherwise applicable 

Federal requirements.

    (e) Incorporation of permit terms and conditions into title V 

permits. (1) After approval of the State's alternative requirements 

under this section, the State shall incorporate the approved permit 

terms and conditions into title V permits for the affected sources. The 

State shall issue or revise the title V permits according to the 

provisions contained in Sec.  70.7 of this chapter. The alternative 

permit terms and conditions may substitute for the Federal requirements 

once they are contained in a valid title V permit. If the State does not 

write the alternative conditions, exactly as approved, into the permit, 

EPA may reopen the permit for cause per Sec.  70.7(g) of this chapter, 

and the delegation may not occur.

    (2) In the notice of pre-draft permit availability, and in each pre-

draft, proposed, and final permit, the State shall indicate prominently 

that the permit contains alternative section 112 requirements. In the 

notice of pre-draft permit availability, the State shall specifically 

solicit public comment on the alternative requirements. In addition, the 

State shall attach all documents supporting the approved equivalency 

determination for those alternative requirements to each pre-draft, 

proposed, and final permit.



[65 FR 55841, Sept. 14, 2000]