42 U.S.C. § 7661a — Permit programs

Page 7441 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661a 1 So in original. Probably should be ‘‘part’’. 2 So in original. Probably should be ‘‘clauses’’. (2) Major source The term ‘‘major source’’ means any sta- tionary source (or any group of stationary sources located within a contiguous area and under common control) that is either of the following: (A) A major source as defined in section 7412 of this title. (B) A major stationary source as defined in section 7602 of this title or part D of sub- chapter I. (3) Schedule of compliance The term ‘‘schedule of compliance’’ means a schedule of remedial measures, including an enforceable sequence of actions or operations, leading to compliance with an applicable im- plementation plan, emission standard, emis- sion limitation, or emission prohibition. (4) Permitting authority The term ‘‘permitting authority’’ means the Administrator or the air pollution control agency authorized by the Administrator to carry out a permit program under this sub- chapter. (July 14, 1955, ch. 360, title V, § 501, as added Pub. L. 101–549, title V, § 501, Nov. 15, 1990, 104 Stat. 2635.) § 7661a. Permit programs (a) Violations After the effective date of any permit program approved or promulgated under this subchapter, it shall be unlawful for any person to violate any requirement of a permit issued under this subchapter, or to operate an affected source (as provided in subchapter IV–A), a major source, any other source (including an area source) sub- ject to standards or regulations under section 7411 or 7412 of this title, any other source re- quired to have a permit under parts 1 C or D of subchapter I, or any other stationary source in a category designated (in whole or in part) by regulations promulgated by the Administrator (after notice and public comment) which shall include a finding setting forth the basis for such designation, except in compliance with a permit issued by a permitting authority under this sub- chapter. (Nothing in this subsection shall be construed to alter the applicable requirements of this chapter that a permit be obtained before construction or modification.) The Adminis- trator may, in the Administrator’s discretion and consistent with the applicable provisions of this chapter, promulgate regulations to exempt one or more source categories (in whole or in part) from the requirements of this subsection if the Administrator finds that compliance with such requirements is impracticable, infeasible, or unnecessarily burdensome on such categories, except that the Administrator may not exempt any major source from such requirements. (b) Regulations The Administrator shall promulgate within 12 months after November 15, 1990, regulations es- tablishing the minimum elements of a permit program to be administered by any air pollution control agency. These elements shall include each of the following: (1) Requirements for permit applications, in- cluding a standard application form and cri- teria for determining in a timely fashion the completeness of applications. (2) Monitoring and reporting requirements. (3)(A) A requirement under State or local law or interstate compact that the owner or operator of all sources subject to the require- ment to obtain a permit under this subchapter pay an annual fee, or the equivalent over some other period, sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit program require- ments of this subchapter, including section 7661f of this title, including the reasonable costs of— (i) reviewing and acting upon any applica- tion for such a permit, (ii) if the owner or operator receives a per- mit for such source, whether before or after November 15, 1990, implementing and enforc- ing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), (iii) emissions and ambient monitoring, (iv) preparing generally applicable regula- tions, or guidance, (v) modeling, analyses, and demonstra- tions, and (vi) preparing inventories and tracking emissions. (B) The total amount of fees collected by the permitting authority shall conform to the fol- lowing requirements: (i) The Administrator shall not approve a program as meeting the requirements of this paragraph unless the State demonstrates that, except as otherwise provided in sub- paragraphs 2 (ii) through (v) of this subpara- graph, the program will result in the collec- tion, in the aggregate, from all sources sub- ject to subparagraph (A), of an amount not less than $25 per ton of each regulated pol- lutant, or such other amount as the Admin- istrator may determine adequately reflects the reasonable costs of the permit program. (ii) As used in this subparagraph, the term ‘‘regulated pollutant’’ shall mean (I) a vola- tile organic compound; (II) each pollutant regulated under section 7411 or 7412 of this title; and (III) each pollutant for which a na- tional primary ambient air quality standard has been promulgated (except that carbon monoxide shall be excluded from this ref- erence). (iii) In determining the amount under clause (i), the permitting authority is not required to include any amount of regulated pollutant emitted by any source in excess of 4,000 tons per year of that regulated pollut- ant. (iv) The requirements of clause (i) shall not apply if the permitting authority dem- onstrates that collecting an amount less Page 7442 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661a than the amount specified under clause (i) will meet the requirements of subparagraph (A). (v) The fee calculated under clause (i) shall be increased (consistent with the need to cover the reasonable costs authorized by subparagraph (A)) in each year beginning after 1990, by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Con- sumer Price Index for the calendar year 1989. For purposes of this clause— (I) the Consumer Price Index for any cal- endar year is the average of the Consumer Price Index for all-urban consumers pub- lished by the Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year, and (II) the revision of the Consumer Price Index which is most consistent with the Consumer Price Index for calendar year 1989 shall be used. (C)(i) If the Administrator determines, under subsection (d), that the fee provisions of the operating permit program do not meet the re- quirements of this paragraph, or if the Admin- istrator makes a determination, under sub- section (i), that the permitting authority is not adequately administering or enforcing an approved fee program, the Administrator may, in addition to taking any other action author- ized under this subchapter, collect reasonable fees from the sources identified under subpara- graph (A). Such fees shall be designed solely to cover the Administrator’s costs of admin- istering the provisions of the permit program promulgated by the Administrator. (ii) Any source that fails to pay fees lawfully imposed by the Administrator under this sub- paragraph shall pay a penalty of 50 percent of the fee amount, plus interest on the fee amount computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment of Federal taxes). (iii) Any fees, penalties, and interest col- lected under this subparagraph shall be depos- ited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available for appro- priation, to remain available until expended, subject to appropriation, to carry out the Agency’s activities for which the fees were collected. Any fee required to be collected by a State, local, or interstate agency under this subsection shall be utilized solely to cover all reasonable (direct and indirect) costs required to support the permit program as set forth in subparagraph (A). (4) Requirements for adequate personnel and funding to administer the program. (5) A requirement that the permitting au- thority have adequate authority to: (A) issue permits and assure compliance by all sources required to have a permit under this subchapter with each applicable stand- ard, regulation or requirement under this chapter; (B) issue permits for a fixed term, not to exceed 5 years; (C) assure that upon issuance or renewal permits incorporate emission limitations and other requirements in an applicable im- plementation plan; (D) terminate, modify, or revoke and re- issue permits for cause; (E) enforce permits, permit fee require- ments, and the requirement to obtain a per- mit, including authority to recover civil penalties in a maximum amount of not less than $10,000 per day for each violation, and provide appropriate criminal penalties; and (F) assure that no permit will be issued if the Administrator objects to its issuance in a timely manner under this subchapter. (6) Adequate, streamlined, and reasonable procedures for expeditiously determining when applications are complete, for processing such applications, for public notice, including offer- ing an opportunity for public comment and a hearing, and for expeditious review of permit actions, including applications, renewals, or revisions, and including an opportunity for ju- dicial review in State court of the final permit action by the applicant, any person who par- ticipated in the public comment process, and any other person who could obtain judicial re- view of that action under applicable law. (7) To ensure against unreasonable delay by the permitting authority, adequate authority and procedures to provide that a failure of such permitting authority to act on a permit application or permit renewal application (in accordance with the time periods specified in section 7661b of this title or, as appropriate, subchapter IV–A) shall be treated as a final permit action solely for purposes of obtaining judicial review in State court of an action brought by any person referred to in para- graph (6) to require that action be taken by the permitting authority on such application without additional delay. (8) Authority, and reasonable procedures consistent with the need for expeditious ac- tion by the permitting authority on permit ap- plications and related matters, to make avail- able to the public any permit application, compliance plan, permit, and monitoring or compliance report under section 7661b(e) of this title, subject to the provisions of section 7414(c) of this title. (9) A requirement that the permitting au- thority, in the case of permits with a term of 3 or more years for major sources, shall re- quire revisions to the permit to incorporate applicable standards and regulations promul- gated under this chapter after the issuance of such permit. Such revisions shall occur as ex- peditiously as practicable and consistent with the procedures established under paragraph (6) but not later than 18 months after the promul- gation of such standards and regulations. No such revision shall be required if the effective date of the standards or regulations is a date after the expiration of the permit term. Such permit revision shall be treated as a permit re- newal if it complies with the requirements of this subchapter regarding renewals. (10) Provisions to allow changes within a permitted facility (or one operating pursuant to section 7661b(d) of this title) without re- quiring a permit revision, if the changes are not modifications under any provision of sub- Page 7443 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661a 3 So in original. A closing parenthesis probably should precede the colon. chapter I and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions: 3 Provided, That the facility provides the Administrator and the permitting authority with written notifica- tion in advance of the proposed changes which shall be a minimum of 7 days, unless the per- mitting authority provides in its regulations a different timeframe for emergencies. (c) Single permit A single permit may be issued for a facility with multiple sources. (d) Submission and approval (1) Not later than 3 years after November 15, 1990, the Governor of each State shall develop and submit to the Administrator a permit pro- gram under State or local law or under an inter- state compact meeting the requirements of this subchapter. In addition, the Governor shall sub- mit a legal opinion from the attorney general (or the attorney for those State air pollution control agencies that have independent legal counsel), or from the chief legal officer of an interstate agency, that the laws of the State, lo- cality, or the interstate compact provide ade- quate authority to carry out the program. Not later than 1 year after receiving a program, and after notice and opportunity for public com- ment, the Administrator shall approve or dis- approve such program, in whole or in part. The Administrator may approve a program to the extent that the program meets the requirements of this chapter, including the regulations issued under subsection (b). If the program is dis- approved, in whole or in part, the Administrator shall notify the Governor of any revisions or modifications necessary to obtain approval. The Governor shall revise and resubmit the program for review under this section within 180 days after receiving notification. (2)(A) If the Governor does not submit a pro- gram as required under paragraph (1) or if the Administrator disapproves a program submitted by the Governor under paragraph (1), in whole or in part, the Administrator may, prior to the ex- piration of the 18-month period referred to in subparagraph (B), in the Administrator’s discre- tion, apply any of the sanctions specified in sec- tion 7509(b) of this title. (B) If the Governor does not submit a program as required under paragraph (1), or if the Admin- istrator disapproves any such program sub- mitted by the Governor under paragraph (1), in whole or in part, 18 months after the date re- quired for such submittal or the date of such disapproval, as the case may be, the Adminis- trator shall apply sanctions under section 7509(b) of this title in the same manner and sub- ject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under section 7509(a) of this title. (C) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this para- graph in any area unless the failure to submit or the disapproval referred to in subparagraph (A) or (B) relates to an air pollutant for which such area has been designated a nonattainment area (as defined in part D of subchapter I). (3) If a program meeting the requirements of this subchapter has not been approved in whole for any State, the Administrator shall, 2 years after the date required for submission of such a program under paragraph (1), promulgate, ad- minister, and enforce a program under this sub- chapter for that State. (e) Suspension The Administrator shall suspend the issuance of permits promptly upon publication of notice of approval of a permit program under this sec- tion, but may, in such notice, retain jurisdiction over permits that have been federally issued, but for which the administrative or judicial re- view process is not complete. The Administrator shall continue to administer and enforce feder- ally issued permits under this subchapter until they are replaced by a permit issued by a per- mitting program. Nothing in this subsection should be construed to limit the Administrator’s ability to enforce permits issued by a State. (f) Prohibition No partial permit program shall be approved unless, at a minimum, it applies, and ensures compliance with, this subchapter and each of the following: (1) All requirements established under sub- chapter IV–A applicable to ‘‘affected sources’’. (2) All requirements established under sec- tion 7412 of this title applicable to ‘‘major sources’’, ‘‘area sources,’’ and ‘‘new sources’’. (3) All requirements of subchapter I (other than section 7412 of this title) applicable to sources required to have a permit under this subchapter. Approval of a partial program shall not relieve the State of its obligation to submit a complete program, nor from the application of any sanc- tions under this chapter for failure to submit an approvable permit program. (g) Interim approval If a program (including a partial permit pro- gram) submitted under this subchapter substan- tially meets the requirements of this sub- chapter, but is not fully approvable, the Admin- istrator may by rule grant the program interim approval. In the notice of final rulemaking, the Administrator shall specify the changes that must be made before the program can receive full approval. An interim approval under this subsection shall expire on a date set by the Ad- ministrator not later than 2 years after such ap- proval, and may not be renewed. For the period of any such interim approval, the provisions of subsection (d)(2), and the obligation of the Ad- ministrator to promulgate a program under this subchapter for the State pursuant to subsection (d)(3), shall be suspended. Such provisions and such obligation of the Administrator shall apply after the expiration of such interim approval. (h) Effective date The effective date of a permit program, or par- tial or interim program, approved under this subchapter, shall be the effective date of ap- proval by the Administrator. The effective date Page 7444 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661b of a permit program, or partial permit program, promulgated by the Administrator shall be the date of promulgation. (i) Administration and enforcement (1) Whenever the Administrator makes a de- termination that a permitting authority is not adequately administering and enforcing a pro- gram, or portion thereof, in accordance with the requirements of this subchapter, the Adminis- trator shall provide notice to the State and may, prior to the expiration of the 18-month pe- riod referred to in paragraph (2), in the Adminis- trator’s discretion, apply any of the sanctions specified in section 7509(b) of this title. (2) Whenever the Administrator makes a de- termination that a permitting authority is not adequately administering and enforcing a pro- gram, or portion thereof, in accordance with the requirements of this subchapter, 18 months after the date of the notice under paragraph (1), the Administrator shall apply the sanctions under section 7509(b) of this title in the same manner and subject to the same deadlines and other con- ditions as are applicable in the case of a deter- mination, disapproval, or finding under section 7509(a) of this title. (3) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this sub- section in any area unless the failure to ade- quately enforce and administer the program re- lates to an air pollutant for which such area has been designated a nonattainment area. (4) Whenever the Administrator has made a finding under paragraph (1) with respect to any State, unless the State has corrected such defi- ciency within 18 months after the date of such finding, the Administrator shall, 2 years after the date of such finding, promulgate, admin- ister, and enforce a program under this sub- chapter for that State. Nothing in this para- graph shall be construed to affect the validity of a program which has been approved under this subchapter or the authority of any permitting authority acting under such program until such time as such program is promulgated by the Ad- ministrator under this paragraph. (July 14, 1955, ch. 360, title V, § 502, as added Pub. L. 101–549, title V, § 501, Nov. 15, 1990, 104 Stat. 2635.) § 7661b. Permit applications (a) Applicable date Any source specified in section 7661a(a) of this title shall become subject to a permit program, and required to have a permit, on the later of the following dates— (1) the effective date of a permit program or partial or interim permit program applicable to the source; or (2) the date such source becomes subject to section 7661a(a) of this title. (b) Compliance plan (1) The regulations required by section 7661a(b) of this title shall include a requirement that the applicant submit with the permit application a compliance plan describing how the source will comply with all applicable requirements under this chapter. The compliance plan shall include a schedule of compliance, and a schedule under which the permittee will submit progress re- ports to the permitting authority no less fre- quently than every 6 months. (2) The regulations shall further require the permittee to periodically (but no less frequently than annually) certify that the facility is in compliance with any applicable requirements of the permit, and to promptly report any devi- ations from permit requirements to the permit- ting authority. (c) Deadline Any person required to have a permit shall, not later than 12 months after the date on which the source becomes subject to a permit program approved or promulgated under this subchapter, or such earlier date as the permitting authority may establish, submit to the permitting author- ity a compliance plan and an application for a permit signed by a responsible official, who shall certify the accuracy of the information sub- mitted. The permitting authority shall approve or disapprove a completed application (con- sistent with the procedures established under this subchapter for consideration of such appli- cations), and shall issue or deny the permit, within 18 months after the date of receipt there- of, except that the permitting authority shall establish a phased schedule for acting on permit applications submitted within the first full year after the effective date of a permit program (or a partial or interim program). Any such sched- ule shall assure that at least one-third of such permits will be acted on by such authority annu- ally over a period of not to exceed 3 years after such effective date. Such authority shall estab- lish reasonable procedures to prioritize such ap- proval or disapproval actions in the case of ap- plications for construction or modification under the applicable requirements of this chap- ter. (d) Timely and complete applications Except for sources required to have a permit before construction or modification under the applicable requirements of this chapter, if an ap- plicant has submitted a timely and complete ap- plication for a permit required by this sub- chapter (including renewals), but final action has not been taken on such application, the source’s failure to have a permit shall not be a violation of this chapter, unless the delay in final action was due to the failure of the appli- cant timely to submit information required or requested to process the application. No source required to have a permit under this subchapter shall be in violation of section 7661a(a) of this title before the date on which the source is re- quired to submit an application under sub- section (c). (e) Copies; availability A copy of each permit application, compliance plan (including the schedule of compliance), emissions or compliance monitoring report, cer- tification, and each permit issued under this subchapter, shall be available to the public. If an applicant or permittee is required to submit information entitled to protection from disclo- sure under section 7414(c) of this title, the appli- cant or permittee may submit such information separately. The requirements of section 7414(c)