Revisions to Public Notice Provisions in Clean Air Act Permitting Programs, 71613-71631 [2016-24911]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 201 (Tuesday, October 18, 2016)]
[Rules and Regulations]
[Pages 71613-71631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24911]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 52, 55, 70, 71 and 124

[EPA-HQ-OAR-2015-0090; FRL-9954-10-OAR]
RIN 2060-AS59


Revisions to Public Notice Provisions in Clean Air Act Permitting 
Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is revising the 
public notice rule provisions for the New Source Review (NSR), title V 
and Outer Continental Shelf (OCS) permit programs of the Clean Air Act 
(CAA or Act) and corresponding onshore area (COA) determinations for 
implementation of the OCS air quality regulations. This final rule 
removes the mandatory requirement to provide public notice of a draft 
air permit (as well as certain other program actions) through 
publication in a newspaper. Instead, this final rule requires 
electronic notice (e-notice) for EPA actions (and actions by permitting 
authorities implementing the federal permitting rules) and allows for 
e-notice as an option for actions by permitting authorities 
implementing EPA-approved programs. When e-notice is provided, the 
final rule requires, at a minimum, electronic access (e-access) to the 
draft permit. However, this final rule does not preclude a permitting 
authority from supplementing e-notice with newspaper notice and/or 
additional means of notification to the public. The EPA anticipates 
that e-notice, which is already being practiced by many permitting 
authorities, will enable permitting authorities to communicate 
permitting and other affected actions to the public more quickly and 
efficiently and will provide cost savings over newspaper publication. 
The EPA further anticipates that e-access will expand access to permit-
related documents.

DATES: The effective date of this final rule is November 17, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2015-0090. All documents in the docket are 
listed on the https://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on

[[Page 71614]]

the Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this rulemaking, contact Mr. Peter Keller, U.S. EPA, Office or Air 
Quality Planning and Standards, Air Quality Policy Division (C504-03), 
Research Triangle Park, NC 27711, telephone (919) 541-2065, email 
keller.peter@epa.gov, or Mr. Ben Garwood, U.S. EPA, Office of Air 
Quality Planning and Standards, Air Quality Policy Division (C504-03), 
Research Triangle Park, NC 27711, telephone (919) 541-1358, email 
garwood.ben@epa.gov; or Ms. Grecia Castro, U.S. EPA, Office of Air 
Quality Planning and Standards, Air Quality Policy Division (C504-03), 
Research Triangle Park, NC 27711, telephone (919) 541-1351, email at 
castro.grecia@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this final rule include permitting 
authorities responsible for the permitting of stationary and OCS 
sources of air pollution or for determining COA designation for 
implementation of the OCS air regulations. This includes the EPA 
Regions and both EPA-delegated and EPA-approved air permitting programs 
that are operated by state, local or tribal agencies. Entities also 
potentially affected by this final rule include owners and operators of 
stationary and OCS sources that are subject to air pollution permitting 
under the CAA, as well as members of the general public who would have 
an interest in knowing about permitting actions, public hearings and 
other agency actions.

B. Where can I obtain a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this document will be posted at: https://www3.epa.gov/nsr/actions.html 
and https://www3.epa.gov/airquality/permits/actions.html.
    Upon its publication in the Federal Register, only the published 
version may be considered the final official version of the rule and 
will govern in the case of any discrepancies between the Federal 
Register published version and any other version.

C. How is this document organized?

    The information presented in this document is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I obtain a copy of this document and other related 
information?
    C. How is this document organized?
II. Background for Final Rulemaking
III. Summary of the Final Rule Requirements
    A. E-Notice Provisions
    B. E-Access Provision
    C. EPA and Delegated Permitting Authorities Subject to Mandatory 
E-Notice and E-Access Requirements
    D. Permitting Authorities Not Subject to Mandatory E-Notice and 
E-Access Requirements
    E. Mailing Lists
    F. Updated Information Regarding E-Notice and E-Access for Minor 
NSR Permits
    G. Other Final Rule Provisions
IV. Implementation of E-Notice and E-Access
    A. Permitting Authorities Implementing Federal Preconstruction 
Permit Program Rules
    B. Permitting Authorities Implementing EPA-Approved 
Preconstruction Permit Program Rules
    C. Permitting Authorities Implementing EPA-Approved Operating 
Permit Programs
    D. Permitting Authorities With EPA-Delegated Authority To 
Administer the Federal Operating Permit Program
    E. Implementation in an Affected Indian Country
    F. Best Practices for E-Notice and E-Access
V. Responses to Significant Comments on the Proposed Rule
    A. General Comments on the EPA's Proposal To Remove the 
Mandatory Newspaper Publication Requirement From Certain Regulations 
and Instead Provide for E-Notice
    B. Comments on Requirement That Permitting Authorities Use a 
Consistent Noticing Method
    C. Comments on Requirement To Make E-Notice Mandatory for 
Federal Permit Actions
    D. Comments on Mandatory E-Access for Programs That Use E-Notice
    E. Comments on Final E-Notice Rule Implementation Timeframe/
Transition
    F. Comments on Temporary Use of Alternative Noticing Methods
    G. Comments on Documentation/Certification of E-Notices
    H. Additional Guidance on E-Notice and E-Access for Minor NSR 
Permit Actions
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)
    L. Judicial Review
VIII. Statutory Authority

II. Background for Final Rulemaking

    The CAA requires stationary sources of air pollution to obtain 
permits and authorizes the EPA to administer and oversee the permitting 
of such sources. To implement the CAA, the EPA promulgated permitting 
regulations for construction of sources pursuant to the NSR program 
under title I of the CAA, for operation of major and certain other 
sources of air pollutants under title V of the CAA and for sources 
located on the OCS under CAA section 328. These regulations are 
contained in 40 Code of Federal Regulations (CFR) parts 51, 52, 55, 70, 
71 and 124, and cover the requirements for federal permit actions 
(i.e., when the EPA or a delegated air agency is the permitting 
authority \1\) and the minimum requirements for EPA approval of state 
or tribal implementation plans (SIPs) \2\ and title V permitting 
programs.\3\ These rules contain, among other things, requirements for 
public notice and availability of supporting information to allow for 
informed public participation in permit actions. These regulatory 
requirements for public participation in

[[Page 71615]]

permitting and other actions are the subject of this final rule. The 
final rule revisions apply to the following: (1) Major source \4\ air 
permits and permits for certain minor sources subject to title V issued 
by the EPA or by state, local, or tribal air agencies exercising 
federal authority delegated by the EPA; (2) the requirements for 
obtaining EPA-approval of state, local, or tribal air permitting 
programs; and (3) OCS permits and COA determinations for implementation 
of the OCS air quality regulations.
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    \1\ In lieu of ``permitting authority,'' in this preamble and 
rule, we sometimes use the terms ``permitting agency'' and 
``reviewing authority.'' These terms generally denote all forms of 
air permitting authorities, including EPA Regions, EPA-delegated air 
programs, and air agencies that are operated by state, local and 
tribal governments and permitting authorities that implement their 
own rules under an EPA-approved implementation plan. Furthermore, 
the rules for the federal permit programs sometimes use the terms 
``Administrator'' and ``Director'' in referring to the permitting 
authority.
    \2\ SIPs, as used in this preamble, includes state and tribal 
implementation plans (SIPs and TIPs).
    \3\ NSR includes the minor NSR, Prevention of Significant 
Deterioration (PSD) and Nonattainment NSR (NNSR) permitting 
programs. Requirements for the NSR programs are contained in 40 CFR 
part 51 for approved state/tribal permitting programs and in 40 CFR 
part 52 for federal PSD permit programs. 40 CFR part 52 references 
part 124 for additional requirements. Requirements for approved 
title V operating permit programs are contained in 40 CFR part 70 
and for federal operating permit programs in 40 CFR part 71. 
Requirements for the permitting of OCS sources and COA 
determinations are contained in 40 CFR part 55.
    \4\ The term ``major source'' in the title V program rules 
includes any ``major stationary source'' under the NSR program 
rules. See, e.g., 40 CFR 52.21(b)(1)(i) and 40 CFR 71.2. In this 
preamble, we use the terms ``major source'' and ``major stationary 
source'' interchangeably.
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    While the CAA requires permitting authorities to offer the 
opportunity for public participation in the processing of air permits 
and other actions, it does not specify the best or preferred method for 
providing notice to the public. See, e.g., CAA sections 165(a)(2) and 
502(b)(6). In the late 1970s and early 1980s, when the EPA first 
developed air permitting regulations to provide public notice for the 
major NSR program, newspaper advertisement was the most commonly 
accepted method for providing notice to the public of permit actions 
under those programs and other agency actions. Over the years, however, 
the availability of and access to the Internet and other forms of 
electronic media have increased significantly in the United States. One 
effect of this development is that circulation of newspapers and other 
print media has declined, making printed newspaper notice less 
effective in providing widespread public notice of permit actions in 
many cases. Many permitting authorities electronically post permit 
notices on their agency Web sites. For example, many state title V 
programs regularly provide electronic postings to assure adequate 
public notice. 40 CFR 70.7(h)(1). Such electronic notice mechanisms 
provide an effective, convenient and cost-efficient way to communicate 
permitting-related information to the majority of the public.
    Given these developments, the EPA has recognized that newspaper 
notice is no longer the only, or in many cases the most effective, 
method of communicating permitting actions to the public and has issued 
rules allowing alternate methods of communication. For example, in 
2011, the EPA issued the Tribal NSR rules that contained, among other 
things, requirements for noticing of permits in Indian country that 
provided for options other than newspaper and print media. 76 FR 38748 
(July 1, 2011). The July 2011 Tribal NSR rule provides options such as 
Web posting and email lists among the methods that the permitting 
authority may use to provide adequate public notice of such permits. 
Id. at 38764.
    Based on the foregoing and the EPA's objective to modernize, 
enhance and improve consistency in the public noticing provisions 
applicable to air permit actions, in December 2015 the EPA issued a 
proposed rule. 80 FR 81234 (Dec. 29, 2015). In that proposed rule, the 
EPA proposed to remove the mandatory requirement that draft permits for 
sources subject to the major NSR, title V or OCS programs and certain 
other actions be noticed in a newspaper of general circulation and 
instead allow (or in some cases require) the use of Internet postings 
to provide notice (i.e., e-notice). We also proposed these same 
revisions for COA designations in the OCS program, permit rescissions 
under the federal PSD program and for giving notice of EPA part 71 
program effectiveness or delegation. In the case of permits issued by 
the EPA or other permitting authorities implementing 40 CFR parts 52, 
55 or 71, we proposed to require that the permitting authority provide 
e-notice for all draft permits.\5\ For permits issued by other 
permitting authorities--specifically, agencies that implement an 
approved program meeting the requirements of 40 CFR parts 51 or 70--we 
proposed that those permitting authorities would have the option to 
adopt either e-notice or retain the newspaper noticing method. We 
proposed that these permitting authorities must, however, select either 
e-notice or newspaper notice as their consistent noticing method. In 
addition, for all their draft permits, they must provide notice to the 
public through the noticing method selected and must indicate the 
consistent noticing method selected in their permitting rules. We also 
proposed to require that, when a permitting authority adopts e-notice, 
it also must provide e-access. In the context of this rule, e-access 
means that the permitting authority must make the draft permit 
available electronically (i.e., on the agency's public Web site or on a 
public Web site identified by the permitting authority) for the 
duration of the public comment period. This final rulemaking notice 
does not repeat all of the discussion from the proposed rule, but 
refers interested readers to the preamble of the proposed rule for 
additional background.
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    \5\ We did not propose nor are we finalizing any changes to the 
public notice requirements for OCS permits issued by delegated 
permitting authorities pursuant to 40 CFR 55.11.
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III. Summary of the Final Rule Requirements

    This section provides a brief summary of the requirements of the 
final rule. Further discussion of these requirements, including 
implementation and summaries of our responses to significant comments 
received on the proposed rule, are provided in subsequent sections.
    In this final action, the EPA is revising the public notice 
provisions for the NSR, title V and OCS programs to remove the 
mandatory requirement to provide public notice of a draft permit (and 
certain other program actions) through publication in a newspaper of 
general circulation. This final rule requires the use of e-notice to 
provide public notice of draft permits for federal permits while 
allowing e-notice as an option for permits issued under EPA-approved 
programs. More specifically, to implement the shift from mandatory 
newspaper noticing to e-notice, this final rule includes revisions to 
the public notice provisions in 40 CFR 51.161 (state/tribal plan 
requirements); 40 CFR 51.165 (state/local/tribal NNSR permits); 40 CFR 
51.166 (state/local/tribal PSD permits); 40 CFR 52.21 (EPA/delegated 
agency-issued PSD permits); 40 CFR part 70 (state/local/tribal title V 
operating permits); 40 CFR part 71 (EPA/delegated agency-issued title V 
operating permits); 40 CFR part 55 (EPA-issued OCS permits and COA 
designations); and the portions of 40 CFR part 124 applicable to EPA-
issued PSD and OCS permits. This final action also requires that a 
permitting authority provide e-access when it adopts the e-notice 
method to provide public notice of a draft permit.

A. E-Notice Provisions

    In order to satisfy the provision for e-notice of a draft permit, 
the permitting authority shall electronically post, for the duration of 
the public comment period, the following information on a publicly 
accessible Web site identified by the permitting authority: (1) Notice 
of availability of the draft permit for public comment; (2) Information 
on how to access the permit record (either electronically and/or 
physically); (3) Information on how to request and/or attend a public 
hearing on the draft permit; and (4) All other information currently 
required to be included in the public notice under the existing 
regulations. In addition, where already required by the current rules, 
the permitting authority shall maintain a mailing list of persons who 
request to be

[[Page 71616]]

notified of the permitting activity and shall distribute (e.g., by 
email, postal service) the notice to those persons. While this final 
rule expressly requires that the draft permit notice direct interested 
parties to information on how to request and/or attend a public hearing 
and how to access additional information relevant to the draft permit, 
it does not alter any existing requirements regarding the content of 
the public notice. Requirements regarding additional information in the 
notice vary across the different sections of the permitting rules and 
may further vary among different individual permitting authorities. 
This final rule does not amend or affect regulatory requirements 
pertaining to the provision of notice of final permit decisions. See 
e.g., 40 CFR 124.15(a).\6\
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    \6\ The Environmental Appeals Board (EAB) has held that the 
notification requirements of 40 CFR 124.15(a) (and similar 
provisions) cannot be fulfilled by posting the final decision 
regarding a draft permit on a Web site. See In Re Hillman Power Co., 
LLC, 10 E.A.D. 673, 680 n. 4 (EAB 2002). Where there is an 
identified participant in the proceeding who has commented, the EPA 
reads section 124.15(a) to require that the permitting authority 
mail a copy of the final permit decision to the participant or 
provide some other form of personal notification. This may include 
email notification. For additional detail on the EAB's reasoning in 
the Hillman Power case, see Order Directing Service of PSD Permit 
Decision on Parties That Filed Written Comments on Draft PSD Permit, 
Denying Motions to Dismiss, and Directing Briefing on the Merits 
(May 24, 2002), available at: https://yosemite.epa.gov/oa/
EAB_Web_Docket.nsf/0CCE572C43D92F218525706C0067DACA/$File/
hillman.pdf. While the EAB expressed concern in this order regarding 
the possibility that some parties may not see an Internet post 
immediately, this was in the context of providing identified persons 
with a right to appeal a permit decision. Further, the Board was 
contrasting the merits of Internet posting and direct personal 
notification, rather than comparing the merits of Internet and 
newspaper notice. As discussed elsewhere in this rule, posting 
notices of draft permits on the Internet offers some benefits that 
are not provided from a one-time publication in a print newspaper. 
In addition, this rule retains and enhances the option for 
interested persons to be placed on a list to receive personal 
notification of draft permits.
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B. E-Access Provision

    In order to satisfy the requirement for e-access when e-notice is 
provided, the permitting authority shall electronically post, for the 
duration of the public comment period, the draft permit on a publicly 
accessible Web site identified by the permitting authority, which may 
include the permitting authority's public Web site, an online state 
permits register, or a publicly-available electronic document 
management Web site that allows for downloading documents. It is 
important to note that, while e-access in this final rule pertains to 
the availability of and access to the draft permit during the public 
comment period, nothing in this rule alters the requirement for a 
permitting authority to maintain a record of the permit action and to 
make it available to the public. Furthermore, nothing in this final 
rule affects a permitting authority's record retention policies and 
requirements. A permitting authority that is satisfying the rule 
requirements for e-access by posting the draft permit on a Web site 
must also provide the public with reasonable access to the other 
materials that support the permit decision (e.g., the permit 
application, statement of basis, fact sheet, preliminary determination, 
final determination, and response to comments) as required by existing 
regulations. This final rule clarifies that access to the other 
materials comprising the permit record may be provided either 
electronically or at a physical location (such as a public library), or 
a combination of both methods, given that some documents (such as air 
quality modeling data) may be too large to post online on a Web site 
but may be made available as part of the permit record either as 
hardcopy or on a data storage device. The electronic posting of draft 
and final permits, including information supporting the permit 
decisions (e.g., permit applications), is subject to the applicable 
policies on CBI and requirements of the permitting authority. 
Consequently, some permit-related documents may be redacted or 
otherwise withheld from viewing on a Web site or public library if it 
is determined that the document contains CBI.

C. EPA and Delegated Permitting Authorities Subject to Mandatory E-
Notice and E-Access Requirements

    For permits that are issued by the EPA or by a permitting authority 
that implements the EPA's federal permitting rules (i.e., 40 CFR parts 
52, 55, 71 or 124) under delegated federal authority, this final rule 
removes the mandatory requirements to provide newspaper notice and 
access to the draft permit information at a physical address, and 
replaces those requirements with mandatory e-notice and mandatory e-
access, as those terms are defined in this rule, as the consistent 
noticing method for draft permit actions \7\ under the federal rules 
for NSR and title V, and for all EPA-issued OCS permits. While this 
final rule requires e-notice as the primary form of public notice for 
such draft permit actions under the federal regulations, permitting 
authorities may, when appropriate, supplement the e-notice with an 
additional form (or forms) of notice (e.g., newspaper publication, 
fliers, or social media postings). Nothing in this final rule precludes 
the use of supplemental notice mechanisms.
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    \7\ As used here and from this point forward in this final rule 
preamble, the term ``permit'' or ``permit action'' includes any 
major source or major modification preconstruction permit and title 
V permit actions subject to the public notice provisions affected by 
this final rule.
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D. Permitting Authorities Not Subject to Mandatory E-Notice and E-
Access Requirements

    For the noticing of draft permits issued by permitting authorities 
with their own EPA-approved rules under 40 CFR part 51 or 70, this 
final rule removes the mandatory newspaper notice requirement for these 
programs and provides the option for the agency rules to require 
either: (1) E-notice and e-access as these terms are used in the 
context of this rule, or (2) newspaper notice with either electronic 
access (e.g., Web site) and/or physical access (e.g., a public 
library). A key aspect of this approach is that the permitting 
authority is required to adopt one noticing method--known as the 
``consistent noticing method''--to be used for all of its permit 
notices. Thus, if a permitting authority selects e-notice as its 
consistent noticing method, it must provide e-notice (along with e-
access) for all of its draft permit notices in order to ensure that the 
public has a consistent and reliable resource to turn to for all draft 
permit notices. There is a requirement in 40 CFR part 51 to make 
available, in at least one location in each region in which the 
proposed source would be constructed, a copy of certain elements of the 
permit record. We are clarifying that this requirement may be met by 
making such materials available at a physical location or on a public 
Web site identified by the permitting authority. Consistent with the 
requirements for notices issued by the EPA and delegated permitting 
authorities implementing the federal regulations, as discussed 
previously, nothing in this final rule precludes permitting authorities 
operating under EPA-approved rules from using additional forms of 
notice. Thus, if a permitting authority elects to use e-notice as its 
consistent noticing method, it may provide additional means of notice 
as appropriate, including newspaper publication or any other mechanism. 
Similarly, a permitting authority providing e-access may elect to also 
provide access to the elements of the administrative record for which 
e-access was provided at a physical location. The EPA encourages all 
permitting authorities to consider facility-specific and permit-
specific facts such as expected public interest

[[Page 71617]]

and environmental justice considerations in determining the appropriate 
method(s) for public notice and access to the administrative record for 
draft permits.

E. Mailing Lists

    Some of the regulatory sections affected by this final rule have a 
mailing list requirement and some do not. This rule includes regulatory 
revisions to amend the EPA's solicitation obligations associated with 
required mailing lists, but otherwise keeps the mailing list 
requirements in place. With respect to the EPA's mailing list 
obligations for the federal title V program, we are removing the 
specific language within 40 CFR 71.11(d)(3)(i)(E) and 71.27(d)(3)(i)(E) 
that requires the EPA to solicit mailing list membership through area 
lists and periodic publication in the public press.\8\ We are making 
similar changes to 40 CFR 124.10(c), which contains public notice 
method requirements applicable to PSD and OCS permits. The rules now 
say that the permitting authority may use generally accepted methods 
(e.g., hyperlink sign-up function or radio button on an agency Web site 
or a sign-up sheet at a public hearing) that enable parties to 
subscribe to a mailing list.
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    \8\ The proposed rule had a minor typographical error stating 
that it was revising 40 CFR 71.27(d)(4)(i)(G). In the final rule, 
the EPA is adding 40 CFR 71.27(d)(4)(i)(H) with the text that was 
proposed in 40 CFR 71.27(d)(4)(i)(G).
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F. Updated Information Regarding E-Notice and E-Access for Minor NSR 
Permits

    Through guidance to permitting authorities issued in 2012, the EPA 
clarified its view on what constitutes public notice for minor NSR 
permit programs and what is considered adequate to meet the requirement 
of notice by prominent advertisement in 40 CFR 51.161(b)(3). See 
``EPA's 2012 Memorandum.'' \9\ Specifically, the EPA's 2012 Memorandum 
clarified that the regulatory requirement for notice by prominent 
advertisement was media neutral and thus sufficiently broad to allow 
for e-notice. In the proposed rule, the EPA stated that it intended to 
clarify that the EPA's interpretation of 40 CFR 51.161(b)(3) also 
applies to the requirement in 40 CFR 51.161(b)(1) to make available for 
public inspection, in at least one location in the affected area, the 
information submitted by the owner or operator and the state or local 
agency's analysis of the proposed source's effect on air quality. 
Specifically, we proposed to clarify that allowing e-access to this 
information by way of a Web site identified by the permitting authority 
satisfies the 40 CFR 51.161(b)(1) public inspection requirement. The 
EPA received no adverse comments regarding this proposed clarification. 
Therefore, in this final rule the EPA is revising 40 CFR 51.161(b)(1) 
to add the following: ``This requirement may be met by making these 
materials available at a physical location or on a public Web site 
identified by the State or local agency.''
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    \9\ Memorandum from Janet McCabe, Principal Deputy Assistant 
Administrator, Office of Air and Radiation, ``Minor New Source 
Review Program Public Notice Requirements under 40 CFR 
51.161(b)(3)'' (April 17, 2012). See https://www2.epa.gov/sites/production/files/2015-07/documents/pubnot.pdf. The EPA's rules 
generally require less extensive public participation procedures for 
the permitting of minor sources and minor modifications.
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    In addition, the EPA has determined that the limitation in Footnote 
1 in the EPA's 2012 Memorandum, excluding synthetic minor permits, is 
no longer appropriate.\10\ The EPA will attach a notification to the 
electronic version of the EPA's 2012 Memorandum indicating that the 
media neutral interpretation also applies to synthetic minor permits.
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    \10\ A synthetic minor permit is a permit that contains 
restrictions to avoid applicability of major NSR requirements. Under 
the NSR program, such restrictions must be legally and practically 
enforceable. See, e.g., 67 FR 80186, 80191 (December 31, 2002).
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G. Other Final Rule Provisions

    As proposed, the EPA is extending the use of e-notice methods to 
three non-permitting actions in this final rule. In each of the 
following cases, the regulatory provisions have previously required 
notice of the action by way of newspaper publication:
     The OCS air regulations in 40 CFR part 55 apply to more 
than just OCS permitting actions. Specifically, when the EPA makes a 
COA designation determination, it must do so by way of a process that 
allows for public comment on the draft determination. Through this 
final action, we are requiring e-notice of the COA designation 
determination.
     The existing federal PSD regulations contain a provision 
for permit rescission that only refers to newspaper notification. 
Specifically, paragraph 40 CFR 52.21(w)(4) requires that, if an agency 
rescinds a permit, it shall give adequate notice of the rescission, and 
that newspaper publication shall be considered adequate notice. In this 
final rule, the EPA is replacing the requirement for newspaper 
publication with a requirement that the Administrator notify the public 
of a permit rescission by e-notice.
     When the EPA takes action to administer and enforce an 
operating permits program in accordance with 40 CFR 71.4(g), it will 
publish a notice in the Federal Register and, to the extent 
practicable, publish notice in a newspaper of general circulation 
within the area subject to the part 71 program effectiveness or 
delegation. In this final rule, the EPA is replacing the newspaper 
publication provision with the provision for e-notice.
    As proposed, the EPA is not in this final rule revising the public 
participation requirements in the plantwide applicability limitation 
regulations, which reference the public participation procedures in 40 
CFR 51.161; 40 CFR 51.165(f)(5); 40 CFR 51.166(w)(5); Appendix S to 
part 51 section IV.K.5; and 40 CFR 52.21(aa)(5). Additionally, this 
final rule does not change the requirements for NNSR, minor NSR, and 
synthetic minor NSR permits in Indian country that are contained in 40 
CFR part 49 and already provide means of public noticing other than 
newspaper publication. See 40 CFR 49.157 (minor NSR and synthetic minor 
NSR permits) and 40 CFR 49.171 (NNSR permits).
    The EPA is not finalizing certain proposed revisions to paragraphs 
in 40 CFR parts 55, 51 and 71 that sought to clarify that the terms 
``send,'' ``mail'' and ``in writing'' and variants of those terms may 
include email. Specifically, the EPA proposed to revise 40 CFR 
51.166(q)(2)(iv), 40 CFR 55.5(f)(2) and (f)(4), 40 CFR 71.11(d)(3)(i) 
introductory text and 40 CFR 71.27(d)(3)(i) introductory text by adding 
a parenthetical indicating that those terms may include email. Without 
necessarily commenting on these specific provisions, one commenter 
generally urged EPA to avoid language in the rules that might limit the 
use of new communications tools and require subsequent revisions to 
enable permitting authorities to use them. With this idea in mind, upon 
further consideration, the EPA determined that the existing rule 
language in the subject paragraphs can reasonably be interpreted to 
include email and other forms of communication. The EPA also determined 
that adding the proposed parentheticals could unintentionally limit 
flexibility to apply additional communications tools or imply a 
different meaning elsewhere in the regulations where those same terms 
are used and EPA did not propose adding the parenthetical. Therefore, 
we are not finalizing those proposed revisions.

[[Page 71618]]

IV. Implementation of E-Notice and E-Access

    This section addresses implementation of this final rule and also 
recommends ``best practices'' for e-notice and e-access. As discussed 
in our responses to comments in Section V of this document, the EPA has 
expanded the list of best practices included in the proposed rule to 
address e-notice and e-access documentation and certification and 
measures to address periods of Web site unavailability (e.g., outages 
and emergencies), including the use of temporary alternative noticing 
methods. These best practices are not requirements under this final 
rule. Instead, they comprise recommendations intended to foster 
improved communication and outreach of permit notices beyond the 
minimum requirements.

A. Permitting Authorities Implementing Federal Preconstruction Permit 
Program Rules

    Air permitting programs that implement the amended federal public 
notice provisions under 40 CFR parts 52, 55 and 124 are required to 
implement e-notice and e-access by the effective date of this final 
rule on November 17, 2016. This includes EPA Regions, air agencies that 
are delegated federal authority by the EPA to issue permits on behalf 
of the EPA (via a delegation agreement) \11\ and any air agencies that 
have their own rules approved by the EPA in a SIP and the SIP 
incorporates by reference the federal program rules amended in this 
action and automatically updates when these EPA rules are amended. 
However, in the case of SIP rules that incorporate by reference the 
federal noticing provisions, the agency may instead select newspaper 
notice as their consistent noticing method by revising their SIP rules 
consistent with the part 51 provisions promulgated here.
---------------------------------------------------------------------------

    \11\ With the exception of permitting authorities that are 
delegated authority to issue permits under 40 CFR part 55.
---------------------------------------------------------------------------

    As described in our responses to comments in Section V of this 
document, the EPA did not receive any comments that identified specific 
details about technical issues that affected permitting authorities are 
facing that would likely impede their ability to implement e-notice and 
e-access by the effective date of this rule. While we acknowledge that 
certain air agencies may need time to change their respective statutes, 
rules, programs or policies to fully implement e-notice (i.e., to 
remove mandatory newspaper publication from their own program 
requirements), we believe that these agencies are in a position to 
comply with the requirements for e-notice and e-access on or before the 
date this final rule becomes effective. Since many of the affected 
programs already use e-notice and e-access as part of their public 
notice practices, little or no change would be necessary for those 
programs to comply with this final rule. Therefore, in order to avoid 
delay in implementation, we are not extending the effective date of 
this final rule for the EPA and other air agencies that implement the 
federal program rules.

B. Permitting Authorities Implementing EPA-Approved Preconstruction 
Permit Program Rules

    To the extent a permitting authority with an approved program, 
meeting the requirements of 40 CFR part 51, is using a consistent 
noticing method and wants to retain the same noticing method, there is 
no need to revise the applicable program rules. A permitting authority 
with an approved program that chooses e-notice and e-access as its 
consistent noticing method may need to revise its applicable program 
rules and seek the EPA's approval of the revision in order to begin to 
implement e-notice. Similarly, a permitting authority that implements 
rules that incorporate by reference the procedural requirements in the 
EPA's federal program regulations (40 CFR part 52), but does not 
provide that its rules automatically update upon the EPA amending its 
rules, will need to amend its regulations and seek the EPA's approval 
of those revisions in order to implement e-notice and e-access in lieu 
of newspaper notice. However, permitting authorities with NNSR programs 
approved under 40 CFR 51.165 have been subject to the public 
participation requirements at 40 CFR 51.161 and thus may be able to 
interpret their existing rules to currently allow for implementing e-
notice in lieu of newspaper notice.\12\
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    \12\ Although this rule adds public participation requirements 
to section 51.165 in new paragraph (i), this additional paragraph 
does not require a revision to a state NNSR program that already 
provides for a consistent noticing method by either newspaper or 
internet posting. Since section 51.161 does not address public 
hearings, this final rule does not include the language that was in 
the proposed version of 40 CFR 51.165(i) about providing information 
on requesting and/or attending a public hearing.
---------------------------------------------------------------------------

    Under this final rule, it is voluntary for these permitting 
authorities to move to e-notice and e-access. Likewise, nothing in the 
final 40 CFR part 51 rules prevents a permitting authority from 
continuing or beginning to implement e-notice and e-access methods. 
However, depending on the permitting authority's rules, there may be 
ongoing obligations to continue with newspaper notices until the agency 
revises its permitting rules.

C. Permitting Authorities Implementing EPA-Approved Operating Permit 
Programs

    In accordance with 40 CFR 70.4(i), a program revision may be 
necessary when the relevant federal regulations are modified or 
supplemented. When 40 CFR part 70 is revised after the permitting 
authority program is approved, the EPA determines the need for 
conforming revisions. However, the approved program may initiate a 
program revision on its own initiative if the program revision is 
required to implement the revised 40 CFR part 70 rules. See, e.g., 40 
CFR 70.4(a) and (i). The EPA is not soliciting program revisions for 
any approved programs in response to this final rule. Under this final 
rule, permitting authorities implementing part 70 have a choice as to 
whether or not to adopt e-notice as their consistent method of public 
notice of air permits. If a permitting authority chooses the e-notice 
approach and a program revision is necessary (e.g., additional 
authority is needed), then the permitting authority must initiate a 
program revision by undergoing a state rule change and submitting a 
program revision package to the EPA for review and approval as per 40 
CFR 70.4(i)(2). Consistent with the duty to keep the EPA apprised of 
such proposed changes, if the permitting authority plans to change its 
implementation practice from newspaper to e-notice and e-access based 
on its analysis that its approved rules allow for e-notice and e-access 
without any changes, the permitting authority must forward the 
appropriate language to the Regional office prior to changing its 
practice. Upon review, the Regional office may request a formal 
submittal for a program revision.
    In this final rule, the EPA supports the position that program 
revisions for converting part 70 programs to e-notice will generally be 
nonsubstantial given that the permitting authority needs only to revise 
its permitting rules to clarify its implementation of e-notice and e-
access. It does not need to seek additional authority for giving notice 
by ``other means.'' In many cases, the permitting authority's current 
practice includes electronic posting of public notices and the draft 
permit, showing that it has adequate resources for implementing the 
revised 40 CFR part 70 notice requirements. Accordingly, we note that 
EPA Regional offices would generally expect to process approvals of 
these program revisions using

[[Page 71619]]

procedures for nonsubstantial program revisions.\13\
---------------------------------------------------------------------------

    \13\ See 40 CFR 70.4(i)(2)(iv).
---------------------------------------------------------------------------

    With regard to 40 CFR part 70, these final rule revisions remove 
only the mandatory aspect of newspaper noticing, allowing for the use 
of that method as a consistent method for general public notice, but 
also allowing e-notice as an alternative consistent method. All other 
obligations, such as the requirement to have or maintain a mailing list 
and provide notice by other means, as appropriate, remain unchanged. 
The EPA interprets the existing mailing list obligations to include 
either electronic or hardcopy mailing list or both.

D. Permitting Authorities With EPA-Delegated Authority To Administer 
the Federal Operating Permit Program

    With regard to the 40 CFR part 71 program revisions, a permitting 
authority that has delegated federal authority to administer the 40 CFR 
part 71 program will likely need to update its delegation agreement to 
update its notice procedures consistent with the e-notice requirement 
in the federal rules.

E. Implementation in an Affected Indian Country

    This final rule changes the requirements for PSD permits that the 
EPA issues in Indian country, as well as PSD permits that are issued by 
a tribe through a delegation agreement or by any tribe that has an 
approved TIP that incorporates by reference the public noticing 
requirements for PSD permits in the federal rules in 40 CFR part 124 
(through incorporation of 40 CFR 52.21(q)). Since this final rule 
revises the noticing requirements in 40 CFR part 71, which applies to 
Indian country absent an approved 40 CFR part 70 program, the revisions 
would affect the public notice procedures for the majority of title V 
operating permits in tribal lands.\14\ A tribal agency with an approved 
40 CFR part 70 program will have the option to implement e-notice under 
the same terms that apply to other approved 40 CFR part 70 programs 
(i.e., when a conforming revision clarifying the consistent method 
becomes effective for the program).
---------------------------------------------------------------------------

    \14\ All states, certain local permitting agencies and currently 
one tribe have approved part 70 programs. The EPA administers the 40 
CFR part 71 federal program in most areas of Indian country (one 
tribe has been delegated implementation authority) and on the OCS 
(where there is no delegated state permitting authority).
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F. Best Practices for E-Notice and E-Access

    This section contains EPA-recommended best practices for e-notice 
and e-access. These best practices are not required to satisfy the e-
notice and e-access provisions in this final rule, but may be helpful 
in the course of providing communication to the public about permitting 
actions. The recommended best practices for e-notice and e-access 
include:
     Providing notice of the final permit issuance on the Web 
site.\15\
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    \15\ Noticing a final permit decision on the Web site is not a 
substitute for complying with the regulatory requirements for the 
provision of notice on final permit decisions. See footnote 6, 
supra, referencing the EAB's decision in In Re Hillman Power Co., 
LLC.
---------------------------------------------------------------------------

     Soliciting for the mailing list on the Web site (e.g., Web 
site equipped with radio button, hyperlink of ``click here'' function 
to subscribe).
     Providing options for email notification that enable 
subscribers to tailor the types of notifications they receive (e.g., a 
person may request notification of only draft permit notices for major 
source actions rather than receiving notice of all permitting activity 
by the permitting authority).
     Providing, where practicable, hyperlinks on the Web site 
that refers users to e-notice postings and/or newspaper postings, 
access to draft permit Web postings and postings of other permitting 
actions.
     Continued posting of the draft permit on the Web site 
beyond the date of the end of the public comment period (e.g., until 
the issuance of the final permit or until the permit application has 
been denied or withdrawn).
     Posting the final permit on the Web site for a specific 
period of time after the issuance of the permit (e.g., through the 
permit appeal period or petition period).\16\
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    \16\ Noticing a final permit decision on the Web site is not a 
substitute for complying with the regulatory requirements for the 
provision of notice on final permit decisions. See footnote 6, 
supra, referencing the EAB's decision in In Re Hillman Power Co., 
LLC.
---------------------------------------------------------------------------

     Posting (or hyperlinking to) other key permit support 
documents on the agency Web site or on a publicly-available online 
document management site (e.g., Federal Docket Management System 
(FDMS\17\)), such as the permit application, statement of basis, fact 
sheet, preliminary determination, final determination, and response to 
comments.\18\
---------------------------------------------------------------------------

    \17\ The FDMS at https://www.regulations.gov is a Web-based 
docket system used for, among other things, federal permitting 
actions that require public notice and comment. This searchable 
docket system allows for public access and downloading of the draft 
permit and permit-related documents. The Web site also allows the 
public to register to receive email alerts to track activity on 
selected dockets. Similar online data management systems exist in a 
number of states and allow permitting agencies to provide electronic 
access to permits and other records.
    \18\ While the EPA believes it is a best practice to 
electronically post as many of the key permit decision related 
documents and information as possible, we recognize that air quality 
modeling runs and other permit data files may not be compatible with 
e-access. These documents typically cannot be uploaded to an 
electronic format due to the size and storage requirements in the 
electronic posting. In some cases, permitting authorities may choose 
to upload a description of these documents with directions on how to 
access the files.
---------------------------------------------------------------------------

     Providing evidence or a certification of the posting of 
the e-notice and draft permit to the Web site in the permit record 
indicating the date(s) of the availability of the notice and draft 
permit on the Web site pursuant to applicable permitting authority 
regulations or policies. One example of such certification would be 
providing a printout of the applicable Web site pages and a 
``Memorandum to the File'' by the permit writer documenting the date 
the e-notice was posted, the Web site address where the e-notice was 
posted and the date through which the posting remained available.
     Providing for alternative notice methods or public comment 
period extension in the event of prolonged Web site unavailability 
(e.g., due to malfunctions, transitions to a different Web site 
platform, or emergency situations that result in prolonged e-notice and 
e-access system outages) during the public comment period.
    Since mid-2015, the EPA has been developing a National Public 
Notices Web site for publishing public notices for all EPA actions 
subject to such notice requirements. This project is expected to be 
completed and implemented by the end of 2016, providing a single 
location for all EPA public notices (https://www.epa.gov/publicnotices). Each individual public notice Web page will be listed 
on the EPA National Public Notices Web site's dynamic list throughout 
the public comment period, and the list will be searchable and 
filterable. The public notice Web pages will be designed to contain all 
related documents or a link to such documents and may include a sign-up 
option for the public to receive email notifications. We welcome other 
permitting authorities to explore the forthcoming EPA National Public 
Notices Web site when it is deployed and to use it as a guide to 
designing and implementing, or improving, their own e-notice and e-
access platforms.

[[Page 71620]]

    In addition, permitting authorities may wish to consider the 
recommendations provided by the National Environmental Justice Advisory 
Council (NEJAC) in a 2011 report \19\ for improving noticing methods 
for reaching underserved and environmental justice (EJ) communities. 
These recommendations emphasize direct communication in appropriate 
languages and include many of the practices identified above, as well 
as press releases, radio announcements and posting of signs.
---------------------------------------------------------------------------

    \19\ ``Enhancing Environmental Justice in EPA Permitting 
Programs,'' National Environmental Justice Advisory Council (April, 
2011), pages 20-21, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-in-permitting-report-2011.pdf.
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V. Responses to Significant Comments on the Proposed Rule

    The EPA received 29 comments on the proposed rule. In this section, 
we summarize the major comments and our responses. For details of all 
the significant comments and our responses, please refer to the 
Response to Comments document in the docket for this rulemaking.

A. General Comments on the EPA's Proposal To Remove the Mandatory 
Newspaper Publication Requirement From Certain Regulations and Instead 
Provide for E-Notice

1. Summary of Proposal
    The EPA proposed to revise the public notice rule provisions for 
the NSR, title V and OCS permit programs of the CAA and the 
corresponding COA determinations for implementation of the OCS air 
quality regulations by removing the mandatory requirement to provide 
public notice of a draft air permit, as well as certain other program 
actions, through publication in a newspaper and instead provide for e-
notice of these actions.
2. Brief Summary of Comments
    The EPA received numerous comments supporting the transition from 
newspaper publication to e-notice and the vast majority of commenters 
supported the proposal in general. All state and local agency 
commenters generally supported the proposal, stating that e-notice 
would: (1) Significantly improve communication with the public on 
permit actions in comparison to a one-day newspaper notice; (2) result 
in broader and better informed public participation; (3) reduce costs 
and conserve air agency resources; (4) improve public access by making 
permit actions immediately available through convenient and reliable 
electronic media outlets; (5) improve communication with EJ communities 
and other target audiences; (6) allow for information to be made 
available for an extended time period; and (7) provide flexibility for 
permitting authorities and sources by avoiding time delays associated 
with newspaper publication and allowing for faster correction of errors 
and rescheduling of events. Several of the state and local air agency 
commenters indicated that they currently provide e-notice and e-access 
for their draft permits and had realized many of the benefits cited. 
State agency commenters cited specific costs associated with newspaper 
publication of permit notices, ranging from $13,500 to $24,000 per 
year, and stated that they anticipated cost savings of similar 
magnitude after implementing e-notice.
    Several commenters supported the EPA's conclusion that there have 
been substantial changes in technology, the media and the way the 
public accesses information. Commenters noted that electronic media, 
such as the Internet, have become the predominant means of 
communicating, generally making such media a more effective means of 
public notification than newspaper publication. Commenters noted that 
this conclusion applied not only to the public in general, but also for 
EJ communities. One commenter noted that EJ communities today obtain 
and share more information through the Internet than through newspaper 
circulation. One state commenter noted that they have been e-noticing 
draft PSD and title V permits in the same manner the EPA proposed for 
more than 10 years, and that they found e-notice to be a highly 
effective mechanism for communicating actions to the general public. 
Another commenter noted that they believe e-notices have been an 
effective and convenient way to communicate permitting-related 
information to the public, enabling broader and faster dissemination of 
information to the public as compared to newspaper notices. Another 
commenter noted that their district had already been encouraged to 
provide e-notice by EJ advocates, noting that such notices improve the 
level of available information and customer service offered to the 
public, including disadvantaged communities, by allowing the district 
to immediately make available bilingual copies of permitting action 
notices. Further, the commenter noted that public outreach initiatives 
cannot be nearly as effective with just newspaper notification.
    Several commenters urged the EPA not to require permitting 
authorities that implement the federal permitting regulations to use 
solely e-notice, and rather to allow such agencies to retain the 
ability to provide alternative forms of notice, such as newspaper, in 
addition to the mandatory e-notice provisions. One commenter indicated 
that it was not entirely clear in the proposed language in 40 CFR 
124.10 that such supplemental noticing methods were not precluded.
    Three commenters, including a newspaper industry association 
(newspaper group), opposed the proposal to remove the mandatory 
newspaper publication requirements from the regulations and instead 
allow for e-notice. The newspaper group, while supporting the EPA's 
intention to provide e-notice of draft permits and certain other 
actions under the CAA, objected to the removal of mandatory newspaper 
publication requirements for public notices on several grounds. The 
commenter did not believe that e-notice constitutes sufficient notice 
and felt that the proposal would result in less public awareness of 
permits issued under the CAA. The commenter opined that the newspaper 
industry specialized in noticing and would generally provide a better 
method for noticing due to a much broader readership and ability to 
reach certain audiences. The commenter stated that relying solely on 
the Internet to provide public notice would disadvantage significant 
numbers of rural, elderly, low-income and/or less-educated Americans 
without Internet access. The commenter also contended that the proposal 
runs counter to over 200 years of tradition, suggesting that a public 
notice should be published by an independent third party, provide 
archiving ability, be accessible and be verifiable. The commenter 
further thought that the government's Web sites will not be as user-
friendly as some newspapers that provide print and Internet 
notification. Finally, the commenter thought that the cost savings from 
eliminating newspaper notices is most likely illusory. Another 
commenter, representing a neighborhood organization, believed that e-
notice would result in less notification and less citizen engagement in 
the decision process and that e-notice has not been shown to meet or 
exceed the standards established by newspaper publication.
3. EPA Response
    We agree with the majority of commenters that e-notice meets the 
public notice requirements and that, compared to newspaper notice, e-
notice is at least as effective and, in most cases, more effective, to 
provide notice to the public about draft air permits and other

[[Page 71621]]

subject actions. E-notice is more efficient and will result in cost 
savings to permitting authorities. Therefore, the EPA is finalizing the 
e-notice rule provisions substantially as proposed. We found the 
comments from air agencies particularly compelling. These air agencies 
(who serve as permitting authorities) found that e-notice and e-access 
have been an effective and convenient way to communicate permitting-
related information to the public, enabling broader and faster 
dissemination of information to the public as compared to newspaper 
notices. In particular, air agencies found that e-notices improve the 
level of available information and customer service offered to the 
public, including EJ communities. In response to commenter concerns 
that the proposed rule would preclude the use of supplemental noticing 
methods for any affected permitting authorities, we would like to 
clarify that this is not the case. The EPA indicated in the proposed 
rule and reiterates in this final rule that all affected permitting 
authorities, including those that implement the federal program 
regulations (i.e., the EPA, delegated programs and programs that 
incorporate by reference the federal regulations), will continue to 
have the authority to use additional means of public notice as 
appropriate, including newspaper publication or any other communication 
means. Nothing in this final rule precludes such supplemental notice 
measures when appropriate and the EPA encourages it. In response to the 
request for more clarity that 40 CFR 124.10 provides discretion for 
supplemental notice, we note that 40 CFR 124.10(c)(4) already provides 
for the use of any other noticing method.
    With regard to the comments received opposing our proposal to 
remove the mandatory newspaper notice requirement for permit actions, 
we disagree that this shift will diminish the public notice process and 
its effectiveness. To the contrary, as noted previously, the majority 
of comments received support the shift to e-notice to meet the public 
notice regulatory requirements. Many of those commenters were state and 
local air agencies that cited specific experience in implementing e-
notice that resulted in significant benefits in the public notice 
process, including reaching target communities such as EJ communities. 
The newspaper group alleges that e-notices are insufficient and cite to 
several studies that they claim support the effectiveness of newspaper 
advertisement. The EPA does not dispute the fact that newspaper 
advertisements, including public notices, may be effective in some 
cases, and this final rule does not preclude the use of newspaper 
public notices under any circumstances. However, recent studies 
strongly support the EPA's position that newspaper circulation has 
declined, and continues to decline, and that the Internet has become 
the predominant medium by which the public obtains information. The Pew 
Research Center estimates that daily circulation of printed newspapers 
declined 30 percent, from 62.3 million in 1990 to 43.4 million in 
2010.\20\ More recent data from the Pew Research Center show that this 
trend has continued through 2015, with average weekday newspaper 
circulation, print and digital combined, falling 7 percent in 2015, the 
greatest decline since 2010.\21\ While digital circulation crept up 2 
percent in 2015, it accounted for only 22 percent of total newspaper 
circulation.\22\ Conversely, Internet use among the public in the 
United States has expanded tremendously and continues to penetrate all 
demographic groups. The Department of Commerce reports that as of July 
2015, about 75 percent of all adults and children aged 3 years and 
older use the Internet.\23\ Internet use through libraries provides the 
most widespread availability of free regular Internet access to the 
general public. The American Library Association's (ALA) ``Public 
Library Funding & Technology Access Study (2010-2011)'' reports that 
99.3 percent of public libraries offer public access to computers and 
the Internet.\24\
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    \20\ Pew Research Center, The State of the News Media 2011, 
available at https://www.stateofthemedia.org/2011/newspapers-essay/data-page-6.
    \21\ Pew Research Center, The State of the News Media 2016, page 
4, available at https://www.journalism.org/2016/06/15/state-of-the-news-media-2016/.
    \22\ Id.
    \23\ U.S. Department of Commerce, National Telecommunications & 
Information Administration, Digital National Data Explorer, 
available at https://www.ntia.doc.gov/other-publication/2016/digital-nation-data-explorer.
    \24\ See Executive Summary of the ALA study, page 7, available 
at https://www.ala.org/research/sites/ala.org.research/files/content/initiatives/plftas/2010_2011/plftas11-execsummary.pdf.
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    During the last decade, the federal government and many state 
governments have been gravitating toward Internet publishing of 
notices, announcements and other information, further supporting the 
adequacy of Internet publication of such notices. In the federal 
sphere, this trend is exemplified by: (1) The E-Government Act of 
2002,\25\ which generally requires and encourages federal agencies to 
better manage and promote Internet and information technology use to 
bring about improvements in government operations and customer service; 
(2) Executive Order 13563 (January 18, 2011), Improving Regulation and 
Regulatory Review, which directs the federal government to modify and 
streamline outmoded and burdensome regulations and specifically states 
that each agency shall afford the public a meaningful opportunity to 
comment through the Internet on any proposed regulation; and (3) 
Executive Order 13576 (June 13, 2011), Delivering an Efficient, 
Effective, and Accountable Government, which encourages federal 
agencies to cut waste, streamline structure and operations, and 
reinforce performance and management reform. With these actions, 
Congress and the President have demonstrated their interest in making 
government more efficient and effective through information technology, 
and several federal agencies (including the EPA) have promulgated rules 
that provide for publishing public notices on a government Web site in 
lieu of newspaper publication.\26\ As mentioned previously, the EPA 
issued a tribal minor NSR rule in 2011 that provided for e-notice.\27\ 
Each of these rules, consistent with this rule, was justified based on 
the effectiveness and efficiency of Internet publication and associated 
cost savings.
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    \25\ Public Law 107-347, 116 Stat. 2899. The E-Government Act of 
2002 establishes in the Office of Management and Budget (OMB), an 
Office of Electronic Government and imposes responsibilities on 
various high-level government officials including heads of Federal 
Government agencies. The Act defines ``electronic Government'' as 
``the use by the Government of Web-based Internet applications and 
other information technologies, combined with processes that 
implement these technologies, to: (A) Enhance the access to and 
delivery of Government information and services to the public, other 
agencies, and other Government entities; or (B) bring about 
improvements in Government operations that may include 
effectiveness, efficiency, service quality, or transformation.'' 44 
U.S.C. 3601(3). While the Act does not mandate Internet publication 
of the EPA's or other agencies' public notices, it evidences the 
inexorable movement to broader Internet use by the federal 
government under congressional direction.
    \26\ See, e.g., Consolidation of Seizure and Forfeiture 
Regulations, Department. of Justice, Drug Enforcement 
Administration, 77 FR 56093 (September 12, 2012); Internet 
Publication of Administrative Seizure and Forfeiture Notices, 
Department of Homeland Security, U.S. Customs and Border Protection, 
78 FR 6027 (January 29, 2013); National Oil and Hazardous Substances 
Pollution Contingency Plan (NCP): Amending the NCP for Public 
Notices for Specific Superfund Activities, Environmental Protection 
Agency, 80 FR 17703 (April 2, 2015); and Medicaid Program; Methods 
for Assuring Access to Covered Medicaid Programs, Department of 
Health and Human Services, Centers for Medicare and Medicaid 
Services, 80 FR 67576 (November 2, 2015).
    \27\ 76 FR 38748 (July 1, 2011).

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[[Page 71622]]

    The EPA believes that in those instances when Internet posting is 
the sole notice provided, it will be fully adequate to meet the purpose 
for which notice is intended--to provide, to as many of the public at 
large as can reasonably be expected to be interested, access to 
important information regarding draft permits. In addition, Internet 
publishing provides the potential to reach unknown interested parties. 
Residents in a local jurisdiction may not subscribe to a local paper or 
happen to see a one-day posting in the legal notices section of the 
newspaper. At any given time, residents may be out of town and/or 
relying on the Internet for news. The fact that e-notices will remain 
on the Internet for the duration of the public comment period vastly 
increases the likelihood that interested parties will receive notice 
about draft permits. In addition, interested parties would not have the 
burden of traveling to a physical location to review a copy of the 
draft permit since that document would also be posted on the Internet. 
Given the widespread use of the Internet in our mobile society, the EPA 
believes that e-notice's reach will improve the public notice process 
and yield positive results. In addition, the EPA believes that e-access 
to draft permits will expand access to permit-related documents.
    With regard to the comment that relying solely on the Internet to 
provide public notice would disadvantage significant numbers of rural, 
elderly, low-income and/or less-educated Americans without Internet 
access, the EPA is sensitive to this concern but does not agree that 
using the Internet to provide public notice of draft permits will 
adversely affect these groups. As previously noted, Internet access is 
widely available even for those who do not own a computer. According to 
a 2010 University of Washington study, those living below the poverty 
line had the highest use of library computers, with 44 percent having 
reported using public library computers and Internet access during the 
previous year.\28\ We do not dispute that some individuals may continue 
to rely on newspapers rather than the Internet to obtain information 
and that there may be greater concentrations of such persons in some 
communities. However, even if newspapers remain an effective means for 
reaching some individuals, this does not take away the added benefits 
cited by other commenters of reaching additional individuals through 
the Internet and providing notice continuously during the public 
comment period. Furthermore, this rule does not preclude supplemental 
means of public notice to reach populations that do not have access to 
or use the Internet. Permitting authorities that are required to 
provide e-notice and e-access may continue to employ newspaper notice 
routinely as a parallel mechanism with e-notice or to supplement e-
notice on a permit-by-permit basis. The same is true for permitting 
authorities that are not required to, but may select, e-notice as their 
consistent noticing method.
---------------------------------------------------------------------------

    \28\ Samantha Becker, et al., Opportunity for All: How the 
American Public Benefits From Internet Access at U.S. Libraries, at 
pages 1-2, available at https://impact.ischool.washington.edu/documents/OPP4ALL_FinalReport.pdf.
---------------------------------------------------------------------------

    The newspaper group claims that government Internet posting of 
public notices does not comport with a ``long tradition'' that a public 
notice must include four elements: The notice must be published by an 
independent third party, the publication must be capable of being 
archived at a reasonable cost, the notice must be accessible, and the 
notice must be verifiable. The newspaper group does not reference any 
statutory authority or case law to support the proposition that a 
public notice must include these four elements. The EPA notes that the 
applicable requirements for notice are encompassed in the 
constitutional due process standard governing public notice. The 
Supreme Court has held that, in providing public notice of governmental 
action, due process requires only that ``the Government's effort be 
`reasonably calculated' to apprise a party of the pendency of the 
action.'' Dusenbery v. United States, 534 U.S. 161, 170-71 (2002) 
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 
(1950)). Although Dusenbery involved direct notice of an administrative 
forfeiture, the same due process standard applies to published notices 
as well. See, e.g., United States v. Young, 421 Fed. Appx. 229, 230-31, 
2011 U.S. App. LEXIS 6741, at *4 (3d Cir. Apr. 1, 2011). The CAA does 
not specify the means by which public notice shall be provided under 
the programs affected by this final rule.\29\ However, the CAA 
permitting provisions do reflect a goal to provide adequate 
opportunities for informed public participation.\30\ Publication of 
draft permit notices via the Internet, with its widespread and broad 
availability within and well beyond the limits of the local 
jurisdiction, is clearly in compliance with this standard. The 
Internet's ability to provide unlimited access to public notices 
throughout the duration of the public comment period is, in this 
Internet era, much less limiting than a single day's posting in a local 
newspaper, which has been found to meet due process requirements.
---------------------------------------------------------------------------

    \29\ See, e.g., CAA sections 165(a)(2) and 502(b)(6).
    \30\ See, e.g., CAA section 160(5).
---------------------------------------------------------------------------

    The element referenced in the newspaper group's comment requiring 
that notice be published by an independent third party presumes that 
newspapers, being independent of the government, provide the public 
with ``an extra layer of confidence'' in the notice compared to the 
government publishing the notice itself. But this argument mistakes why 
newspapers were used in the past and the role they serve in the notice 
process. Newspapers were historically used to provide public notice 
because, until the Internet, there was no comparable alternative method 
that was ``reasonably calculated'' to apprise a party of the pendency 
of a draft permit or other subject action. It had nothing to do with 
their status as an ``independent and neutral third party.'' In fact, 
for these purposes, there is nothing inherently beneficial about 
newspapers being independent from the government given that they merely 
act as a vehicle for publishing notices prepared and provided by the 
permitting authority. The commenter has not demonstrated that 
newspapers generally exercise independent editorial control over the 
content of legal notices or classified advertisements or that newspaper 
staff otherwise seek to check the veracity of what the newspaper 
company is paid to print in these sections of its publication.
    In response to newspaper group's comments about the preservation of 
e-notices for future reference and verification of the e-notice 
posting, we note that permitting authorities have been required to keep 
and retain permit records (including, for example, a copy of the 
newspaper notice), and are required to continue to do so, in accordance 
with applicable record retention requirements. Therefore, we have 
included a best practice suggestion of evidence to include in the 
permit record, when e-notice and e-access are provided, to certify the 
date(s) of availability of the e-notice and draft permit postings on 
the Web site. In addition, in response to the newspaper group's claim 
that the EPA's Web site does not include hyperlinks to refer users to 
public notices, we have included a best practice suggestion that, where 
practicable, permitting authorities include hyperlinks on their Web 
site to e-notice and/or newspaper postings, postings of draft permits 
and other permitting actions. We also identified, in Section IV of this

[[Page 71623]]

document, a forthcoming National Public Notices Web site that the EPA 
will utilize for all EPA public notices and stated that we welcome 
other permitting authorities to review that platform for these and 
other best practices. The EPA notes that the process of providing legal 
verification of Internet notice is dramatically streamlined when it is 
the government that can retrieve the required data from its own Web 
site, as opposed to seeking such verification from newspapers. Finally, 
the EPA notes that this regulatory change should correspondingly 
decrease the burden on newspapers of having to provide such 
information.
    The newspaper group claims that many newspapers have adopted a 
marketing strategy to publish print issues on the newspaper's Internet 
site. They believe the government's Internet sites will not be as user-
friendly as the newspaper's dual method of print and Internet 
notification. They also claim that state press associations aggregate 
printed notices and post them on statewide public-notice Web sites. The 
EPA does not agree that posting draft permit notices on newspaper Web 
sites or press association Web sites is superior to posting them on a 
permitting authority's Web site. Online posting is not part of the 
EPA's contracts for publication of draft permit notices, so newspapers 
are under no obligation to make them freely available to the public 
online. Newspapers are likewise under no obligation to contract with 
state press associations for online posting of draft permit notices. 
Moreover, some newspaper Web sites restrict access to the full online 
version of the newspaper to print subscribers or those who pay for full 
online access. A potential interested party searching for a draft 
permit notice on such a Web site would either need a subscription to 
the newspaper that is publishing the Internet notice or would have to 
pay a daily access fee. The EPA believes it is unrealistic to assume 
that such a process would provide more effective notice than a freely 
available Web site that posts the desired notice as well as a copy of 
the draft permit, 24 hours a day, for the duration of the public 
comment period, in a searchable database.
    The EPA disagrees with the newspaper group's claim that the cost 
savings to eliminate mandatory newspaper notices is illusory. The 
commenter makes a valid point that there are also costs involved in 
maintaining a Web site and posting information on the Internet. 
However, the commenter did not quantify the costs or show that they are 
greater than the costs of newspaper advertisements. Many state 
regulatory agencies have established Web sites for the purpose of 
serving broader communication objectives. So an appropriate cost 
comparison for purposes of this rule is the cost of adding e-notices 
for specific actions to a Web site infrastructure that an agency 
already maintains or might create for other reasons. State regulatory 
agencies with Web sites have budgets to cover the costs of running a 
Web site for various reasons (not just permitting). To the extent that 
there could be some additional cost to add permit notices to a Web 
site, those marginal costs would be offset by the savings realized by 
eliminating newspaper notices. As noted previously in the summary of 
comments in this section, air agency commenters cited specific costs 
associated with newspaper notices and anticipated cost-savings after 
implementing e-notice. In addition, most permitting authorities 
commented positively about the cost and other efficiencies that e-
notice provides. The EPA believes it has demonstrated earlier how 
providing public notice through the Internet can--and indeed already 
does--reach more people, more easily, and more directly, than newspaper 
notice. Data from permitting authorities with real-world experience 
implementing pubic notice requirements under the current regulations 
(in many cases also including e-notice) supports the EPA's conclusion 
that e-notice will be at least as effective, and in most cases more 
effective, and cheaper overall than notice by newspaper.\31\
---------------------------------------------------------------------------

    \31\ A survey of EPA Regional offices indicated an average 
newspaper advertising cost per permit (not including indirect costs) 
of approximately $1,034. See Memorandum: ``U.S. EPA Regional Office 
NSR, title V and OCS Newspaper Public Notice Cost Estimates: FY 
2013, 2014 and 2015'' contained in this rulemaking docket. To the 
extent any additional costs are incurred as a result of implementing 
e-notice and e-access, such costs would be de minimis in comparison.
---------------------------------------------------------------------------

B. Comments on Requirement That Permitting Authorities Use a Consistent 
Noticing Method

1. Summary of Proposal
    In lieu of newspaper publication, we proposed to require e-notice 
for the noticing of air permits issued by the EPA and other permitting 
authorities that implement the federal air permitting rules. For 
permits issued by permitting authorities that implement their own rules 
approved by the EPA, the proposed rule provided the option for 
permitting authorities to use either e-notice or traditional newspaper 
notice. However, those permitting authorities must adopt a single, 
consistent noticing method for all of their affected permit actions in 
their air rules. Thus, we proposed that where a permit agency opts to 
post notices of draft permits on a Web site in lieu of newspaper 
publication, it must post all notices to that Web site in order to 
ensure that the public has a consistent and reliable location for all 
permit notices.
2. Brief Summary of Comments
    The majority of commenters supported the EPA's proposal to require 
a consistent noticing method. Several commenters indicated that it was 
critical for permitting authorities to use a consistent noticing method 
to avoid inconsistency in implementation and confusion on the part of 
the public in understanding how to access permit information. Several 
commenters also noted that it is important for permitting authorities 
to be allowed to use supplementary noticing methods when appropriate. 
Although two of these commenters indicated that they understood that 
the rule language, as proposed, would not preclude the use of 
additional, supplemental means of public notice, others seemed to be 
confused on this point and therefore objected to the proposed 
consistent noticing method requirement on the same grounds.
    Some commenters did not support the proposed requirement to use a 
consistent noticing method and instead favored alternative approaches 
or increased flexibility. One of these commenters indicated that, in 
some cases, traditional newspaper publication may be appropriate or 
necessary, and that some permitting authorities may have technical or 
budgetary constraints affecting their ability to provide e-notice and 
e-access while some may also have a statutory requirement for newspaper 
notice. That commenter urged the EPA to provide flexibility for a 
permitting authority to choose the type of notice that is appropriate 
for the location and circumstances of a project. Another commenter 
stated that forcing a state to make a formal commitment to a single 
form of public notice, whether electronic or print, defeats the purpose 
of public notice and also questioned how a state would ``adopt'' a 
``consistent noticing method.'' Two commenters supported media neutral, 
flexible approaches based on a ``method reasonably likely to provide 
routine and ready access to the public'' as opposed to only one 
``consistent noticing method.'' Finally, one commenter favoring a 
flexible approach indicated that a consistent noticing method does not 
work in states with diverse

[[Page 71624]]

populations that benefit from different noticing methods, and that 
restrictions may inhibit effectively communicating important 
information to diverse communities. Further, the commenter indicated 
that a consistent notice approach does not allow the flexibility to 
transition from newspaper to e-notice.
3. EPA Response
    The EPA is finalizing the requirement for authorities to use a 
consistent noticing method as proposed. We agree with commenters that 
believe that the random use of alternative notice methods for different 
permit actions could confuse the public in their efforts to access air 
permit public notices. In response to the negative comments received 
that seem to have interpreted the requirement for using a consistent 
noticing method for public notice of draft permit actions as precluding 
the use of additional noticing mechanisms, we would like to clarify 
that, consistent with the proposed rule, nothing in this final rule 
prohibits or precludes a permitting authority from using additional, 
supplemental forms of notice, including newspaper publication. Indeed, 
several state and local permitting agency commenters indicated that 
they already practice multiple forms of public notice on such permit 
actions, including both e-notice and newspaper publication and in some 
cases additional parallel forms of notice. Such permitting authorities 
that implement EPA-approved permitting rules would be required to adopt 
a consistent noticing method (i.e., e-notice or newspaper publication), 
but could continue to use any and all additional forms of notice, 
either consistently or on a permit-by-permit basis, as appropriate. 
Additionally, we would like to clarify that for permitting authorities 
that implement EPA-approved permitting rules, adopting rule changes and 
submitting a plan or program revision incorporating the final e-notice 
rule provisions is optional. Such air agencies may choose to continue 
to operate under their existing EPA-approved rules and regulations that 
require newspaper notification in all cases. This would qualify as a 
``consistent noticing method'' under the revised regulations.
    Those commenters who argued for flexibility to choose the noticing 
method on a permit-by-permit basis have not shown how the ``consistent 
noticing method'' requirement frustrates the goals they seek to achieve 
through this flexibility. As discussed previously, the rule does not 
preclude using multiple methods of public notice, as long as the 
consistent method is still one of the methods used. These commenters 
have not shown any detrimental effect that would result to the 
commenters or the public from requiring permitting authorities to use 
one consistent method of notice for all draft permits. The benefits 
derived from the flexibility sought by these commenters does not 
eliminate the benefits that result from a consistent noticing method--
ensuring that interested parties can rely on one form of notice in all 
cases and will not miss notices because of continuous changes in 
noticing methods.
    The EPA does not intend for the rule to preclude a permitting 
authority from subsequently changing its ``consistent noticing method'' 
on a programmatic basis. For example, if a state permitting authority 
follows a particular noticing method and then decides that a different 
form of notice would be more effective going forward, the state may 
revise its regulations to change its consistent method. Regarding the 
concern about how a state would ``adopt'' a consistent method, this 
rule makes clear that such method should be specified in EPA-approved 
permitting regulations for the appropriate jurisdiction.

C. Comments on Requirement To Make E-Notice Mandatory for Federal 
Permit Actions

1. Summary of Proposal
    The EPA proposed that permitting authorities that implement the 
federal permitting rules, including the EPA and other permitting 
authorities that have been delegated the authority to implement the 
federal permitting rules, would be required to adopt e-notice as the 
consistent noticing method. We proposed this approach because we 
believe that e-notice represents the best current practice for noticing 
major source air permit actions. Accordingly, while the proposed rule 
made e-notice optional for permitting authorities implementing EPA-
approved permitting rules, we did not extend the same flexibility to 
the EPA and other air agencies that implement the federal permitting 
rules.
2. Brief Summary of Comments
    We received one comment opposing the requirement that permitting 
authorities implementing the federal permitting rules be required to 
adopt e-notice as the consistent noticing method. The commenter 
believed that such programs should have the same option as EPA-approved 
programs to choose e-notice or newspaper on a programmatic basis, 
allowing the permitting agency to determine the best method for 
communicating with the public. The same commenter further indicated 
that providing this option would allow for transition to e-notice at a 
pace consistent with available resources.
3. EPA Response
    We are maintaining the requirement that permitting authorities 
implementing the federal permitting rules use e-notice as their 
consistent noticing method consistent with the proposal and our stated 
objective to implement these best practices. As discussed further in 
Section V of this document, the EPA did not receive any comments 
demonstrating that one or more affected permitting authorities have 
infrastructure and/or resource constraints that would render them 
unable to implement e-notice and e-access as of the effective date of 
the final rule or that implementation would cause a significant 
additional burden. With regard to the equity point raised by the 
commenter, delegated permitting authorities are, by definition, not the 
same as EPA-approved permitting authorities. A permitting authority 
that elects to administer the federal program under a delegation 
agreement accepts the obligation to apply the EPA's regulations.

D. Comments on Mandatory E-Access for Programs That Use E-Notice

1. Summary of Proposal
    The EPA proposed to require that, when a permitting authority 
adopts the e-notice approach, it also must provide e-access. In the 
context of this rule, e-access means that the permitting authority must 
make the draft permit available electronically (i.e., on the agency's 
public Web site or on a public Web site identified by the permitting 
authority) for the duration of the public comment period.
2. Brief Summary of Comments
    Several commenters supported e-notice with e-access and further 
recommended that e-access be provided using commonly available, free 
software. One commenter noted that e-access was important to increasing 
overall project awareness and providing for more effective public 
review and comment. Another commenter agreed with the EPA's proposed 
approach to limit e-access to the draft permit, and agreed that the 
method of making available other elements of the permit record should 
be left to the permitting authority to avoid potential resource 
constraints.

[[Page 71625]]

    Commenters opposed to the proposed mandatory e-access requirement 
generally cited resource and information technology infrastructure 
constraints, stating that the requirement should be for e-notice only 
due to the added burden associated with posting additional records 
without sufficient time, infrastructure or economic capability to do 
so. Two commenters noted that the addition of e-access makes the rule 
more stringent than existing law.
3. EPA Response
    The EPA is finalizing the requirement that permitting authorities 
that adopt e-notice also adopt e-access consistent with the proposed 
rule. The EPA believes that coupling e-notice and e-access provides the 
affected public with ready and efficient access to both the notice and 
the draft permit, and that such access supports informed public 
participation in the permitting process. Further, the EPA believes that 
the additional scanning and/or uploading of the draft permit to meet 
the e-access requirement would be minimally burdensome. We agree with 
the commenters that recommended that e-access be provided using 
commonly available, free software, and our assessment indicates that 
this is the current practice of permitting authorities that provide e-
access to elements of their draft permit records. Therefore, we do not 
believe that rule language requiring the use of commonly available, 
free software for providing e-access is necessary and the final rule 
does not contain such a requirement.
    We disagree with the comments that the requirement to provide e-
access makes the noticing rules more stringent in a way with which 
permitting authorities are not readily capable of complying or that is 
contrary to law. The CAA does not prescribe the means or content of a 
public notice under the permitting programs addressed in the final 
rule. Comments received from state and local air agencies confirm that 
many of these agencies already provide e-access, and in some cases 
provide e-access to significantly more elements of the permit record 
than just the draft permit. Thus, we see the requirement for e-access 
as a logical and appropriate extension of the current requirement to 
make elements of the permit record available at a location. In 
addition, the EPA notes that the rule provides that access to documents 
supporting a draft permit may be provided at a physical location such 
as a public library. Based on comments received, the EPA believes that 
the e-access requirement for simply providing, at a minimum, e-access 
to the draft permit can be readily met by permitting authorities.

E. Comments on Final E-Notice Rule Implementation Timeframe/Transition

1. Summary of Proposal
    The EPA did not propose a transition period for technological or 
other reasons, and proposed instead that once the e-notice rule becomes 
effective, e-notice and e-access would be required for covered actions 
by permitting authorities that implement the federal program rules 
under 40 CFR parts 52, 55, 71 and 124. This includes EPA Regions, 
permitting authorities that are delegated authority by the EPA to issue 
permits on behalf of the EPA (via a delegation agreement), and 
permitting authorities that have their own rules approved by the EPA in 
a SIP where the SIP incorporates by reference the federal program 
procedures and automatically updates when the EPA's rules are amended. 
Under this rule, these programs will be required to implement e-notice 
and e-access, with the exception of states that are delegated authority 
to issue permits under part 55.
2. Brief Summary of Comments
    The EPA received three comments expressing concern about the 
proposed effective date of the final rule and the need for additional 
transition time for implementation. One industry association commenter 
stated that establishing electronic notification systems and Web sites 
for e-access requires careful planning, development and testing, and 
recommended a one year implementation timeframe. Another industry 
association commenter noted that the support of e-access capabilities 
typically necessitates substantive changes to an agency's Web site 
which will stretch far past the effective date of the rule. Another 
commenter indicated that a local air agency has several rules that 
mandate newspaper notice and requested a six month transition to allow 
for amendment of its rules.
3. EPA Response
    The EPA is retaining the proposed effective date of the final rule. 
As discussed previously, the EPA did not receive any comments 
demonstrating that one or more affected permitting authorities have 
infrastructure and/or resource constraints that would render them 
unable to implement e-notice and e-access as of the effective date of 
the final rule or that implementation would cause a significant 
additional burden. Industry commenters only conveyed a general concern 
and did not identify any specific affected permitting authorities that 
would be unable to meet the final rule requirements in accordance with 
the proposed effective date. The other commenter, a local air agency 
with a partially-delegated permitting program, said a transition is 
necessary to allow for agency rule changes. However, that same 
commenter indicated that the agency already practices e-notice and e-
access on its own Web site. Therefore, it seems this air agency would 
not be required to implement any changes to its rules to comply with 
its obligations as a delegated permitting program after the final rule 
becomes effective. To the extent that a delegated permitting authority 
must separately comply with a state requirement to provide notice via a 
newspaper, nothing in this rule precludes a permitting authority from 
continuing to comply with such a state requirement while at the same 
time satisfying the federal requirement for e-notice under this 
regulation. This rule does not preclude delegated permitting 
authorities from continuing to provide newspaper notice, either on a 
discretionary basis or as required separately by state law and/or rule. 
Under the amended rules, such a permitting authority should be able to 
transition away from mandatory newspaper noticing over a period of time 
without any need for a delay in realizing the benefits of e-notice for 
EPA-issued permits or permits issued by other air agencies that 
administer delegated programs.
    With regard to permitting authorities that administer EPA-approved 
permitting programs, this rule does not necessarily require any changes 
to those programs, and air agencies that wish to make changes have 
discretion to do so. An approved state whose rules currently require 
newspaper publication for all draft permits is not required by the rule 
to make any changes to its public notice requirements. To the extent 
such a state elects to replace newspaper notice with e-notice, this 
rule establishes no timetable for the state to make this transition. 
The state may continue providing newspaper notices until it can 
complete changes to its regulations to remove a mandatory newspaper 
publication requirement. Thus, with respect to rule changes by air 
agencies with EPA-approved programs that elect to implement e-notice 
alone (i.e., to no longer be required by state or local rules to 
publish notices in a newspaper), such agencies are free to pursue such 
changes on their own schedule. A delay in the effective date in this 
final rule is not necessary to accommodate air agencies

[[Page 71626]]

with EPA-approved programs that may need time to adopt e-notice into 
their rules. The fact that a state may need time to move to e-notice if 
they choose that as their consistent noticing method does not justify 
delaying the effective date of this rule for other air agencies with 
EPA-approved programs that may be able to adopt e-notice more quickly.

F. Comments on Temporary Use of Alternative Noticing Methods

1. Summary of Proposal
    In the proposed rule, the EPA noted that there may be temporary 
instances of Web site failure or failure in the availability for public 
review of the posted e-notice and the draft permit (e-access). This 
raises the question about what constitutes a significant interruption 
in time sufficient to require an extension of the public comment period 
or other measure(s) to cover the period of interruption. The EPA stated 
in the proposal that the requirement that e-notice and e-access 
postings be maintained ``for the duration of the comment period'' 
should not be interpreted as a requirement for uninterrupted access. 
However, we sought comment on the EPA's proposed approach for the 
phrase ``for the duration of the comment period.'' The EPA also 
solicited comments regarding whether we should include a provision in 
the regulations that allows a permitting authority to use an 
alternative noticing (and/or access) method to reach the affected 
public when the Web site is unavailable.
2. Brief Summary of Comments
    Several commenters indicated that they felt temporary alternative 
notice methods were unnecessary. Some of these commenters recommended 
that the notice be extended for the duration of the downtime of the Web 
site. Several commenters noted that having the draft permit and public 
notice available on the Web site during the comment period, compared to 
the single day publication in the newspaper, results in a significant 
increase in public access to the proposed permitting action, even if 
Web site outages occur, and thus temporary alternative notice/access 
methods should not be required. Commenters also believed that any 
inability to provide e-notice would likely be resolved quickly and the 
public would have sufficient access to a draft permit during the 
comment period despite temporary Web site outages. Several commenters 
supported the EPA's position that ``for the duration of the comment 
period'' should not be interpreted as a requirement for uninterrupted 
access. One commenter suggested that the requirement for 30-day notice 
is satisfied when the notice first appears and noted that there is 
nothing in the statute or current regulations that requires continuous 
notice.
    Several commenters also favored rule requirements for temporary 
alternative noticing. One commenter suggested that alternative noticing 
criteria should be built into the rules to ensure that Web site 
interruptions do not have a significant impact on public's ability to 
review and comment or on the permitting schedule, and that it was 
critical that agencies have the flexibility to choose their own 
approach and not be left with the sole option of extending the public 
notice period when there is a significant Web site interruption. Two 
commenters suggested that a definition of ``the duration of the public 
comment period'' should be added to the rule.
3. EPA Response
    The EPA is not finalizing any specific requirements regarding 
temporary alternative noticing of permit actions to address the 
temporary unavailability of the notice and/or draft permit due to Web 
site outages, nor are we specifically defining ``the duration of the 
public comment period.'' We do not believe that, in general, there are, 
or will be, significant issues with e-notice and e-access availability 
on Web sites used by permitting authorities, and we believe that 
permitting authorities are in the best position to determine the 
appropriate methods to address any situations that may arise on 
specific permitting actions. In addition, we agree that there is no 
statutory requirement for continuous notice of a draft permit during 
the entire duration of the comment period. While there is significant 
added value in posting a notice throughout the comment period, we do 
not see a need for the EPA to define ``the duration of the public 
comment period'' as a requirement for uninterrupted access. We support 
the flexibility for the permitting authority to enact measures to 
address Web site unavailability, including possibly extending the 
public comment period. We have addressed this in the ``best practices'' 
in Section IV of this document.

G. Comments on Documentation/Certification of E-Notices

1. Summary of Proposal
    The proposed rule did not specifically address documenting and/or 
certifying the posting of an e-notice to a Web site for the duration of 
the comment period. However, the EPA received comments on this topic.
2. Brief Summary of Comments
    Several commenters supported the need for documentation and/or 
certification of the e-notice in the administrative record for the 
draft permit, further stating that it is critical that states document 
this information in the event the decision is challenged. Two 
commenters suggested that the EPA could address this issue in ``best 
practices'' and provided specific examples.
3. EPA Response
    We agree with commenters that it is important for permitting 
authorities to establish a record that they have provided notice of a 
draft permit and the opportunity for public comment, but we do not 
believe a specific certification requirement is necessary. EPA rules 
have not required a certification of public notice and nothing in the 
CAA requires it. The EPA has addressed documentation of e-notices in 
the ``best practices'' in Section IV of this document. We support 
flexibility for permitting authorities to comply with their specific 
statutory, policy or regulatory provisions for e-notice and e-access 
and to ensure that there is adequate documentation of the notice in the 
administrative record for the draft permit.

H. Additional Guidance on E-Notice and E-Access for Minor NSR Permit 
Actions

1. Summary of Proposal
    In the proposed rule, we indicated our intent to clarify that the 
EPA's 2012 Memorandum's interpretation of prominent advertisement in 40 
CFR 51.161(b)(3) as media neutral also applies to 40 CFR 51.161(b)(1). 
More specifically, we proposed that allowing e-access (i.e., Web site 
access) to the information submitted by the owner or operator and 
access to the agency's analysis of the effect on air quality would 
satisfy the requirement that this information be available for public 
inspection in at least one location in the area affected. We believe 
this approach is consistent with the EPA's 2012 Memorandum with respect 
to allowing the use of electronic and other methods to provide notice 
of minor NSR actions, and it is reasonable, for reasons discussed in 
this preamble, to allow e-access to permit documents for major NSR 
permits.
    In addition, in issuing the EPA's 2012 Memorandum, the EPA 
indicated that our interpretation of the term prominent

[[Page 71627]]

advertisement in 40 CFR 51.161(b)(3) applies only to minor sources and 
not to synthetic minor sources.\32\ Given the statement in the 
memorandum, which raised uncertainty about the flexibility to use media 
neutral methods for synthetic minor NSR permits, the EPA has now 
determined that it is not appropriate to exclude such synthetic minor 
permits in this regard, and the Agency proposal clarified that the 
limitation established in Footnote 1 of the EPA's 2012 Memorandum is no 
longer appropriate.
---------------------------------------------------------------------------

    \32\ Synthetic minor sources are those sources that have the 
potential to emit regulated NSR pollutants at or above the major 
source thresholds, but that have taken enforceable limitations to 
restrict their potential to emit below such thresholds.
---------------------------------------------------------------------------

2. Brief Summary of Comments
    All commenters supported the extension of the interpretation in the 
EPA's 2012 Memorandum to synthetic minor NSR permits. One commenter 
recommended that the EPA either propose changes to 40 CFR 51.161(b)(1) 
similar to what was proposed for the other sections of the CFR in the 
rule proposal or expand the EPA's existing interpretation of ``media 
neutral'' notification for minor NSR programs to specifically indicate 
that information available electronically meets the requirements of 40 
CFR 51.161(b)(1).
3. EPA Response
    The EPA agrees that we should revise the text of 40 CFR 
51.161(b)(1) similar to what was proposed for other sections of the 
CFR. This better communicates our view that Internet posting of this 
information is sufficient to meet the subject records availability 
requirements under the existing rule language. The EPA does not agree, 
however, that it needs to propose the revised text before adopting it 
in this final rule. The proposed rule provided adequate notice of the 
EPA's intent to clarify that the requirements of 40 CFR 51.161(b)(1) 
are satisfied by making the information available electronically. We 
received no adverse comments on this point. The text the EPA is adding 
to 40 CFR 51.161(b)(1) is similar to the text the EPA proposed to add 
to 40 CFR 51.166(q)(2)(ii). We received no adverse comments regarding 
that text. Therefore, in this final rule, the EPA is revising 40 CFR 
51.161(b)(1) to add the following: ``This requirement may be met by 
making these materials available at a physical location or on a public 
Web site identified by the State or local agency.''
    This final rule preamble also serves to extend the EPA's media 
neutral interpretation of prominent advertisement under 40 CFR 51.161 
to synthetic minor permits. The EPA will attach a notification to the 
electronic version of the EPA's 2012 Memorandum indicating that the 
media neutral interpretation also applies to synthetic minor permits.

VI. Environmental Justice Considerations

    The 1990 CAA Amendments generally require that the EPA or the 
permitting authority provide adequate procedural opportunities for the 
general public to have informed participation in the air permitting 
process in the areas affected by a proposed permit. These areas include 
EJ communities.
    The effectiveness of noticing methods for reaching underserved and 
EJ communities is a substantial concern to the EPA. A 2011 report 
issued by the NEJAC found that publication in the legal section of a 
regional newspaper is antiquated and ineffective, and is not ideal for 
providing notice to affected EJ communities. Regarding public 
participation, the report recommends the following to the EPA: ``To 
ensure meaningful public participation, the public notice and outreach 
process must include direct communication in appropriate languages 
through telephone calls and mailings to EJ and tribal communities, 
press releases, radio announcements, electronic and regular mail, Web 
site postings and the posting of signs.'' \33\ Thus, the NEJAC 
specifically listed Web site postings as a method to ensure meaningful 
public participation. Furthermore, several comments received on the 
proposed rule, including comments from air agencies with practical 
experience implementing e-notice and e-access, strongly supported these 
mechanisms as more effective in providing public notice of permitting 
actions to EJ communities. However, notwithstanding our conclusion that 
e-notice and e-access are a viable and effective means of making 
information widely available to the public, including EJ communities, 
we strongly encourage permitting authorities to provide additional 
notice and access to the draft permit (and other elements of the 
administrative records for which they choose to provide e-access) where 
they determine that a specific jurisdiction or population would be 
better served with supplemental notice in the newspaper and/or another 
noticing method, such as those suggested by the NEJAC, and access to 
elements of the administrative record (for which e-access was provided) 
at a physical location.
---------------------------------------------------------------------------

    \33\ ``Enhancing Environmental Justice in EPA Permitting 
Programs,'' National Environmental Justice Advisory Council (April, 
2011), pages 20-21, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-in-permitting-report-2011.pdf.
---------------------------------------------------------------------------

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant action and was, therefore, not 
submitted to the OMB for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. This final rule revises regulations to address public 
noticing method requirements for draft permits for certain sources of 
air pollution. It is important to note that the final rule revisions do 
not require air agencies that implement the permitting program through 
an EPA-approved title V program or SIP to use e-notice. These agencies 
may continue to provide notice by newspaper publication or they may 
adopt e-notice as their consistent notification method. Only in the 
latter case would an air agency be required to revise the title V 
program rules or undertake a SIP revision. For EPA-delegated agencies, 
and for agencies that incorporate by reference the federal rules and 
their rules automatically update, no rulemaking action is required by 
the agency to adopt the e-notice requirements. However, if any of these 
agencies decides to retain newspaper publication as their consistent 
notification method, they could request removal of delegation, revise 
their program rules consistent with the rules for state programs (e.g., 
40 CFR 51.166), and undertake a SIP revision. In addition, an agency 
delegated a 40 CFR part 71 program may need to update its delegation 
agreement. An air agency delegated the 40 CFR part 71 program may have 
to choose between implementing e-notice, obtaining approval for 
implementing a 40 CFR part 70 program, or relinquishing their title V 
program. To the extent that a SIP revision or a title V program 
revision is necessary to effect the changes being proposed, we believe 
that the burden to revise SIPs is already accounted for under the PSD 
and NNSR information collection request (ICR) No. 1230.29 (OMB Control 
No. 2060-0003) and the burden to revise title V programs is included in 
ICR Nos. 1587.13 and 1713.11 (OMB Control Nos. 2060-0243 and 2060-
0336).

[[Page 71628]]

    This action has no burden on industry sources since permitting 
authorities are responsible for the noticing of permits. Therefore, the 
final rule revisions do not contain any information collection 
activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements directly on small entities. 
This final rule revises regulations to address public noticing method 
requirements for draft permits for certain sources of air pollution.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded federal mandate as 
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly 
affect small governments. This final action imposes no enforceable duty 
on any state, local or tribal governments, or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This final action does not have tribal implications, as specified 
in Executive Order 13175. It will not have substantial direct effect on 
tribal governments, on the relationship between the federal government 
and Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes, as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    The final rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations. The results of this evaluation are contained 
in Section VI of this document titled ``Environmental Justice 
Considerations.''

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of Congress and to the Comptroller General of the 
United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of any nationally applicable regulation, or any action the 
Administrator ``finds and publishes'' as based on a determination of 
nationwide scope or effect must be filed in the United States Court of 
Appeals for the District of Columbia Circuit within 60 days of the date 
the promulgation, approval, or action appears in the Federal Register. 
This final rule is nationally applicable, as it revises the rules for 
public notice under the minor NSR, PSD, NNSR, title V and OCS 
permitting programs in 40 CFR 51.161, 40 CFR 51.166, 40 CFR 51.165, 40 
CFR 52.21, 40 CFR part 124, 40 CFR part 70, 40 CFR part 71 and 40 CFR 
part 55. As a result, petitions for review of this rule must be filed 
in the United States Court of Appeals for the District of Columbia 
Circuit within December 19, 2016. CAA section 307(d)(7)(B) further 
provides that ``[o]nly an objection to a rule or procedure that was 
raised with reasonable specificity during the period for public comment 
(including any public hearing) may be raised during judicial review.'' 
This section also provides a mechanism for the EPA to reconsider the 
rule ``[i]f the person raising an objection can demonstrate to the 
Administrator that it was impracticable to raise such objection within 
[the period for public comment] or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule.'' Any person seeking to make such 
a demonstration should submit a Petition for Reconsideration to the 
Office of the Administrator, U.S. EPA, Room 3000, EPA WJC, 1200 
Pennsylvania Ave. NW., Washington, DC 20460, with a copy to all 
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT 
section of this final rule, and the Associate General Counsel for the 
Air and Radiation Law Office, Office of General Counsel (Mail Code 
2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. 
Filing a petition for reconsideration by the Administrator of this 
final action does not affect the finality of this action for the 
purposes of judicial review, nor does it extend the time within which a 
petition for judicial review must be filed, and shall not postpone the 
effectiveness of this action.

VIII. Statutory Authority

    The statutory authority for this action is provided by 23 U.S.C. 
101; 42 U.S.C. 6901, et seq.; 42 U.S.C. 300f, et seq. 33 U.S.C. 1251, 
et seq.; 42 U.S.C. 7401, et seq.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Reporting and 
recordkeeping requirements.

40 CFR Part 55

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Reporting and 
recordkeeping requirements.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

[[Page 71629]]

40 CFR Part 71

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

    Dated: October 5, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart I--Review of New Sources and Modifications

0
2. Section 51.161 is amended by revising paragraph (b)(1) to read as 
follows:


Sec.  51.161  Public availability of information.

* * * * *
    (b) * * *
    (1) Availability for public inspection in at least one location in 
the area affected of the information submitted by the owner or operator 
and of the State or local agency's analysis of the effect on air 
quality. This requirement may be met by making these materials 
available at a physical location or on a public Web site identified by 
the State or local agency;
* * * * *

0
3. Section 51.165 is amended by adding paragraph (i) to read as 
follows:


Sec.  51.165  Permit requirements.

* * * * *
    (i) Public participation requirements. The reviewing authority 
shall notify the public of a draft permit by a method described in 
either paragraph (i)(1) or (2) of this section. The selected method, 
known as the ``consistent noticing method,'' shall comply with the 
public participation procedural requirements of Sec.  51.161 of this 
chapter and be used for all permits issued under this section and may, 
when appropriate, be supplemented by other noticing methods on 
individual permits.
    (1) Post the information in paragraphs (i)(1)(i) through (iii) of 
this section, for the duration of the public comment period, on a 
public Web site identified by the reviewing authority.
    (i) A notice of availability of the draft permit for public 
comment;
    (ii) The draft permit; and
    (iii) Information on how to access the administrative record for 
the draft permit.
    (2) Publish a notice of availability of the draft permit for public 
comment in a newspaper of general circulation in the area where the 
source is located. The notice shall include information on how to 
access the draft permit and the administrative record for the draft 
permit.

0
4. Section 51.166 is amended by revising paragraphs (q)(2)(ii), (iii), 
(vi), and (viii) to read as follows:


Sec.  51.166  Prevention of significant deterioration of air quality.

* * * * *
    (q) * * *
    (2) * * *
    (ii) Make available in at least one location in each region in 
which the proposed source would be constructed, a copy of all materials 
the applicant submitted, a copy of the preliminary determination, and a 
copy or summary of other materials, if any, considered in making the 
preliminary determination. This requirement may be met by making these 
materials available at a physical location or on a public Web site 
identified by the reviewing authority.
    (iii) Notify the public, by advertisement in a newspaper of general 
circulation in each region in which the proposed source would be 
constructed, of the application, the preliminary determination, the 
degree of increment consumption that is expected from the source or 
modification, and of the opportunity for comment at a public hearing as 
well as through written public comment. Alternatively, these 
notifications may be made on a public Web site identified by the 
reviewing authority. However, the reviewing authority's selected 
notification method (i.e., either newspaper or Web site), known as the 
``consistent noticing method,'' shall be used for all permits subject 
to notice under this section and may, when appropriate, be supplemented 
by other noticing methods on individual permits. If the reviewing 
authority selects Web site notice as its consistent noticing method, 
the notice shall be available for the duration of the public comment 
period and shall include the notice of public comment, the draft 
permit, information on how to access the administrative record for the 
draft permit and how to request and/or attend a public hearing on the 
draft permit.
* * * * *
    (vi) Consider all written comments submitted within a time 
specified in the notice of public comment and all comments received at 
any public hearing in making a final decision on the approvability of 
the application. The reviewing authority shall make all comments 
available for public inspection at the same physical location or on the 
same Web site where the reviewing authority made available 
preconstruction information relating to the proposed source or 
modification.
* * * * *
    (viii) Notify the applicant in writing of the final determination 
and make such notification available for public inspection at the same 
location or on the same Web site where the reviewing authority made 
available preconstruction information and public comments relating to 
the proposed source or modification.
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
5. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart A--General Provisions

0
6. Section 52.21 is amended by revising paragraphs (q) and (w)(4) to 
read as follows:


Sec.  52.21  Prevention of significant deterioration of air quality.

* * * * *
    (q) Public participation. The administrator shall follow the 
applicable procedures of 40 CFR part 124 in processing applications 
under this section.
* * * * *
    (w) * * *
    (4) If the Administrator rescinds a permit under this paragraph, 
the Administrator shall post a notice of the rescission determination 
on a public Web site identified by the Administrator within 60 days of 
the rescission.
* * * * *

PART 55--OUTER CONTINENTAL SHELF AIR REGULATIONS

0
7. The authority citation for part 55 continues to read as follows:

    Authority: Section 328 of the Clean Air Act (42 U.S.C. 7401, et 
seq.) as amended by Public Law 101-549.

[[Page 71630]]


0
8. Section 55.5 is amended by revising paragraphs (f)(1)(i) and (ii) to 
read as follows:


Sec.  55.5  Corresponding onshore area designation.

* * * * *
    (f) * * *
    (1) * * *
    (i) Make available, in at least one location in the NOA and in the 
area requesting COA designation, which may be a public Web site 
identified by the Administrator, a copy of all materials submitted by 
the requester, a copy of the Administrator's preliminary determination, 
and a copy or summary of other materials, if any, considered by the 
Administrator in making the preliminary determination; and
    (ii) Notify the public, by prominent advertisement in a newspaper 
of general circulation in the NOA and the area requesting COA 
designation or on a public Web site identified by the Administrator, of 
a 30-day opportunity for written public comment on the available 
information and the Administrator's preliminary COA designation.
* * * * *

0
9. Section 55.6 is amended by revising paragraph (a)(3) to read as 
follows:


Sec.  55.6  Permit requirements.

    (a) * * *
    (3) Administrative procedures and public participation. The 
Administrator will follow the applicable procedures of 40 CFR part 71 
or 40 CFR part 124 in processing applications under this part. When 
using 40 CFR part 124, the Administrator will follow the procedures 
used to issue Prevention of Significant Deterioration (``PSD'') 
permits.
* * * * *

0
10. Section 55.7 is amended by revising paragraphs (f)(4)(ii) and (iii) 
to read as follows:


Sec.  55.7  Exemptions.

* * * * *
    (f) * * *
    (4) * * *
    (ii) Make available, in at least one location in the COA and NOA, 
which may be a public Web site identified by the Administrator or 
delegated agency, a copy of all materials submitted by the requester, a 
copy of the preliminary determination, and a copy or summary of other 
materials, if any, considered in making the preliminary determination.
    (iii) Notify the public, by prominent advertisement in a newspaper 
of general circulation in the COA and NOA or on a public Web site 
identified by the Administrator or delegated agency, of a 30-day 
opportunity for written public comment on the information submitted by 
the owner or operator and on the preliminary determination.
* * * * *

PART 70--STATE OPERATING PERMIT PROGRAMS

0
11. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


0
12. Section 70.7 is amended by revising paragraphs (h)(1) and (2) to 
read as follows:


Sec.  70.7  Permit issuance, renewal, reopenings, and revisions.

* * * * *
    (h) * * *
    (1) Notice shall be given by one of the following methods: By 
publishing the notice in a newspaper of general circulation in the area 
where the source is located (or in a State publication designed to give 
general public notice) or by posting the notice, for the duration of 
the public comment period, on a public Web site identified by the 
permitting authority, if the permitting authority has selected Web site 
noticing as its ``consistent noticing method.'' The consistent noticing 
method shall be used for all draft permits subject to notice under this 
paragraph. If Web site noticing is selected as the consistent noticing 
method, the draft permit shall also be posted, for the duration of the 
public comment period, on a public Web site identified by the 
permitting authority. In addition, notice shall be given to persons on 
a mailing list developed by the permitting authority using generally 
accepted methods (e.g., hyperlink sign-up function or radio button on 
an agency Web site, sign-up sheet at a public hearing, etc.) that 
enable interested parties to subscribe to the mailing list. The 
permitting authority may update the mailing list from time to time by 
requesting written indication of continued interest from those listed. 
The permitting authority may delete from the list the name of any 
person who fails to respond to such a request within a reasonable 
timeframe. The permitting authority may use other means to provide 
adequate notice to the affected public;
    (2) The notice shall identify the affected facility; the name and 
address of the permittee; the name and address of the permitting 
authority processing the permit; the activity or activities involved in 
the permit action; the emissions change involved in any permit 
modification; the name, address, and telephone number of a person (or 
an email or Web site address) from whom interested persons may obtain 
additional information, including copies of the permit draft, the 
application, all relevant supporting materials, including those set 
forth in Sec.  70.4(b)(3)(viii) of this part, and all other materials 
available to the permitting authority (except for publicly-available 
materials and publications) that are relevant to the permit decision; a 
brief description of the comment procedures required by this part; and 
the time and place of any hearing that may be held, including a 
statement of procedures to request a hearing (unless a hearing has 
already been scheduled);
* * * * *

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

0
13. The authority citation for part 71 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart A--Operating Permits

0
14. Section 71.4 is amended by revising paragraph (g) to read as 
follows:


Sec.  71.4  Program implementation.

* * * * *
    (g) Public notice of part 71 programs. In taking action to 
administer and enforce an operating permits program under this part, 
the Administrator will publish a notice in the Federal Register 
informing the public of such action and the effective date of any part 
71 program as set forth in Sec.  71.4(a), (b), (c), or (d)(1)(ii). The 
publication of this part in the Federal Register on July 1, 1996 serves 
as the notice for the part 71 permit programs described in Sec.  
71.4(d)(1)(i) and (e). The EPA will also publish a notice in the 
Federal Register of any delegation of a portion of the part 71 program 
to a State, eligible Tribe, or local agency pursuant to the provisions 
of Sec.  71.10. In addition to notices published in the Federal 
Register under this paragraph (g), the Administrator will, to the 
extent practicable, post a notice on a public Web site identified by 
the Administrator of the part 71 program effectiveness or delegation, 
and will send a letter to the Tribal governing body for an Indian Tribe 
or the Governor (or his or her designee) of the affected area to 
provide notice of such effectiveness or delegation.
* * * * *

0
15. Section 71.11 is amended by revising paragraphs (d)(3)(i)(E), 
(d)(3)(ii), and (d)(4)(i)(G) to read as follows:

[[Page 71631]]

Sec.  71.11  Administrative record, public participation, and 
administrative review.

* * * * *
    (d) * * *
    (3) * * *
    (i) * * *
    (E) Persons on a mailing list, including those who request in 
writing to be on the list. As part of this requirement, the permitting 
authority shall notify the public of the opportunity to be put on the 
mailing list by way of generally accepted methods (e.g., hyperlink 
sign-up function or radio button on an agency Web site, sign-up sheet 
at a public hearing, etc.) that enable interested parties to subscribe 
to the mailing list. The permitting authority may update the mailing 
list from time to time by requesting written indication of continued 
interest from those listed. The permitting authority may delete from 
the list the name of any person who fails to respond to such a request 
within a reasonable timeframe.
    (ii) By posting a notice on a public Web site identified by the 
permitting authority for the duration of the public comment period. The 
notice shall be consistent with paragraph (d)(4)(i) of this section and 
be accompanied by a copy of the draft permit.
* * * * *
    (4) * * *
    (i) * * *
    (G) The physical location and/or Web site address of the 
administrative record, the times at which the record will be open for 
public inspection, and a statement that all data submitted by the 
applicant are available as part of the administrative record; and
* * * * *

Subpart B--Permits for Early Reductions Sources

0
16. Section 71.27 is amended by revising paragraphs (d)(3)(i)(E), 
(d)(3)(ii), and (d)(4)(i)(F) and (G) and adding paragraph (d)(4)(i)(H) 
to read as follows:


Sec.  71.27  Public participation and appeal.

* * * * *
    (d) * * *
    (3) * * *
    (i) * * *
    (E) Persons on a mailing list, including those who request in 
writing to be on the list. As part of this requirement, the 
Administrator shall notify the public of the opportunity to be put on 
the mailing list by way of generally accepted methods (e.g., hyperlink 
sign-up function or radio button on an agency Web site, sign-up sheet 
at a public hearing, etc.) that enable interested parties to subscribe 
to the mailing list. 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 the list the name 
of any person who fails to respond to such a request within a 
reasonable timeframe;
* * * * *
    (ii) By posting a notice on a public Web site identified by the 
Administrator for the duration of the public comment period. The notice 
shall be consistent with paragraph (d)(4)(i) of this section and be 
accompanied by a copy of the draft permit.
* * * * *
    (4) * * *
    (i) * * *
    (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;
    (G) Any additional information considered necessary or proper; and
    (H) The physical location and/or Web site address of the 
administrative record, the times at which the record will be open for 
public inspection and a statement that all data submitted by the 
applicant are available as part of the administrative record.
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
17. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et 
seq.

Subpart A--General Program Requirements

0
18. Section 124.10 is amended by adding paragraph (c)(2)(iii) to read 
as follows:


Sec.  124.10  Public notice of permit actions and public comment 
period.

* * * * *
    (c) * * *
    (2) * * *
    (iii) For PSD permits:
    (A) In lieu of the requirement in paragraphs (c)(1)(ix)(B) and (C) 
of this section regarding soliciting persons for ``area lists'' and 
notifying the public of the opportunity to be on a mailing list, the 
Director may use generally accepted methods (e.g., hyperlink sign-up 
function or radio button on an agency Web site, sign-up sheet at a 
public hearing, etc.) that enable interested parties to subscribe to a 
mailing list. The Director may update the mailing list from time to 
time by requesting written indication of continued interest from those 
listed. The Director may delete from the list the name of any person 
who fails to respond to such a request within a reasonable timeframe.
    (B) In lieu of the requirement in paragraph (c)(2)(i) of this 
section to publish a notice in a daily or weekly newspaper, the 
Director shall notify the public by posting the following information, 
for the duration of the public comment period, on a public Web site 
identified by the Director: A notice of availability of the draft 
permit for public comment (or the denial of the permit application), 
the draft permit, information on how to access the administrative 
record, and information on how to request and/or attend a public 
hearing on the draft permit.
    (C) In lieu of the requirement in paragraph (d)(1)(vi) of this 
section to specify a location of the administrative record for the 
draft permit, the Director may post the administrative record on an 
identified public Web site.
* * * * *
[FR Doc. 2016-24911 Filed 10-17-16; 8:45 am]
BILLING CODE 6560-50-P