Revisions to the Petition Provisions of the Title V Permitting Program, 6431-6446 [2020-01099]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 24 (Wednesday, February 5, 2020)]
[Rules and Regulations]
[Pages 6431-6446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01099]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-HQ-OAR-2016-0194; FRL-10004-56-OAR]
RIN 2060-AS61


Revisions to the Petition Provisions of the Title V Permitting 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is revising its 
regulations to streamline and clarify processes related to submission 
and review of title V petitions. This final rule implements changes in 
three key areas: Method of petition submittal to the agency, required 
content and format of petitions, and administrative record requirements 
for permits. In the first area, the EPA is establishing an electronic 
submittal system as the preferred method of submittal, with specified 
email and physical addresses as alternate routes to submit petitions. 
By doing so, the agency anticipates (and has already seen) improved 
tracking of petitions. To help petitioners in preparing their 
petitions, as well as the EPA in reviewing and responding to petitions, 
the EPA is finalizing its proposal to incorporate certain content and 
format requirements into the regulations, codifying practices that the 
EPA has described in prior orders responding to petitions and the 
preamble to the proposal for this rule. Finally, the EPA is requiring 
permitting authorities to prepare a written response to comments (RTC) 
document if significant comments are received during the public 
participation process on a draft permit, and requiring that the RTC, 
when applicable, be sent to the agency with the proposed permit and 
necessary documents including the statement of basis for its 45-day 
review. This change is anticipated to provide more complete permit 
records during the EPA's 45-day review period for proposed permits, the 
60-day petition window, and the EPA's review of any petition submitted, 
and thus reduce the likelihood that the Administrator will grant a 
petition because of an incomplete permit record.

[[Page 6432]]


DATES: The effective date of this final rule is April 6, 2020.

ADDRESSES: The EPA has established a docket for this action, identified 
by Docket ID No. EPA-HQ-OAR-2016-0194. All documents in the docket are 
listed in the https://www.regulations.gov website. Although listed in 
the index, some information might not be publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy. Publicly available docket materials are available 
electronically in https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this action, contact Ms. Carrie Wheeler, Office of Air Quality Planning 
and Standards (OAQPS), Air Quality Policy Division, U.S. EPA, Mail Code 
C504-03, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; by 
telephone at (919) 541-9771; or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by the revisions to the 
EPA's regulations include anyone who may submit a title V petition on a 
proposed title V permit prepared by a state, local or tribal title V 
permitting authority pursuant to its EPA-approved title V permitting 
program. Entities also potentially affected by this rule include state, 
local and tribal permitting authorities responsible for implementing 
the title V permitting program. Entities that may be interested in, 
though not directly affected by, this rule include owners and operators 
of major stationary sources or other sources that are subject to the 
title V permitting requirements, as well as the general public who 
would have an interest in knowing about title V permitting actions and 
associated public hearings but do not intend to submit a petition.

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

    In addition to being available in the docket, an electronic copy of 
this Federal Register document will be posted at the regulations 
section of our Title V Operating Permits website, under Regulatory 
Actions, at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.

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 get 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. Petition Submission
    1. Petition Submission to the EPA
    2. Required Copies of the Petition to the Permitting Authority 
and Applicant
    B. Required Petition Content and Format
    1. Required Petition Content
    2. Required Petition Format
    C. Administrative Record Requirements
    1. Response to Comments
    2. Statement of Basis
    3. Correction to Incorrect Reference
    4. Commencement of the EPA 45-day Review Period
    5. Notification to the Public
    D. Documents That May Be Considered in Reviewing Petitions
IV. Responses to Significant Comments on the Proposed Rule
    A. Electronic Submittal System for Petitions
    1. Summary of Proposal
    2. Summary of Comments
    3. EPA Response
    B. Required Petition Content and Format
    1. Summary of Proposal
    2. Summary of Comments
    3. EPA Response
    C. Administrative Record Requirements
    1. Summary of Proposal
    2. Brief Summary of Comments
    3. EPA Response
    D. Documents That May Be Considered in Reviewing Petitions
    1. Summary of Proposal
    2. Summary of Comments
    3. EPA Response
V. Implementation
VI. Determination of Nationwide Scope and Effect
VII. Environmental Justice Considerations
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act (CRA)
    M. Determination Under CAA Section 307(d)
IX. Statutory Authority

II. Background for Final Rulemaking

    Title V of the CAA establishes an operating permit program. Section 
505 of the CAA requires permitting authorities to submit each proposed 
title V permit to the EPA Administrator (``Administrator'') for review 
for a 45-day period before issuing the permit as final. The 
Administrator shall object to issuance of the permit if the 
Administrator determines that the permit contains provisions that are 
not in compliance with the applicable requirements under the CAA. If 
the Administrator does not object to the permit during the 45-day EPA 
review period, any person may petition the Administrator within 60 days 
after the expiration of the 45-day review period to take such action 
(hereinafter ``title V petition'' or ``petition'').\1\ As the EPA 
explained in proposing the initial title V regulations, the title V 
petition opportunity serves an important purpose because title V 
permits are frequently complex documents, and given the brevity of the 
agency review period there may be occasions when the EPA does not 
recognize during that review period that certain permit provisions are 
not in compliance with applicable requirements of the Act. 56 FR 21751 
(May 10, 1991). Following more than 20 years of experience with title V 
petitions, and taking into account feedback from various stakeholders, 
the agency proposed changes to 40 CFR part 70 that were intended to 
provide clarity and transparency to the petition process and to improve 
the efficiency of that process. 81 FR 57822 (August 24, 2016).
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    \1\ The procedural requirements for title V petitions are 
addressed in section 505(b)(2) of the CAA and in 40 CFR 70.8(d) of 
the current implementing regulations.
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    In that proposed rule, the EPA discussed five key areas, each of 
which was anticipated to increase stakeholder access to and 
understanding of the petition process and aid the EPA's review of 
petitions. First, the EPA proposed regulatory provisions that provide 
direction as to how petitions should be submitted to the agency. 
Second, the EPA proposed regulatory provisions that describe the 
expected format and minimum required content for title V petitions. 
Third, the proposal required that permitting authorities respond in 
writing to any significant

[[Page 6433]]

comments received during the public comment period for draft title V 
permits, and to provide that response and statement of basis with the 
proposed title V permit to the EPA for the agency's 45-day review 
period.\2\ Fourth, guidance was provided in the form of ``recommended 
practices'' for various stakeholders to help ensure title V permits 
have complete administrative records and comport with the requirements 
of the Clean Air Act (CAA or Act). Fifth, to increase familiarity with 
the post-petition process, the preamble presented information on the 
agency's interpretation of certain title V provisions of the CAA and 
its implementing regulations regarding the steps following an EPA 
objection in response to a title V petition, as previously discussed in 
specific title V orders. The agency did not propose to take any action 
in connection with the fourth and the fifth areas. Rather, the 
discussion on those topics was provided purely for purposes of 
increasing public awareness.\3\
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    \2\ The term ``statement of basis'' is not defined in the CAA or 
in 40 CFR part 70; however, it is often used to refer to the 
requirement in 40 CFR 70.7(a)(5) for a permitting authority to 
provide a statement that sets forth the legal and factual basis for 
the permit conditions. Permitting authorities may call it 
``statement of basis'' or may choose alternate language to identify 
this document.
    \3\ Additionally, in the interest of transparency and clarity, 
the preamble included a discussion of certain prior interpretations 
and applications of the title V provisions. The agency did not 
propose to change or solicit comment on these prior interpretations 
or applications, but rather, it repeated the information as a 
convenience for the public.
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    This final rulemaking notice does not repeat all the discussion 
from the proposal, but interested readers are referred to the preamble 
of the proposed rule for additional background and for the discussion 
on the fourth and fifth areas, which are not discussed further in this 
notice.

III. Summary of the Final Rule Requirements

    This section provides a 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, three of the key areas mentioned in Section II of 
this document are addressed: Requirements related to the submission of 
petitions; required petition content and format; and administrative 
record requirements for proposed permits submitted to EPA for review. 
First, the EPA is finalizing a regulatory provision requiring that 
petitioners use one of three identified methods for petition submittal, 
with a preference for petitions to enter the agency through the 
electronic submittal system. Second, petition content and format 
requirements are being changed to describe the information expected by, 
and necessary for, the agency to effectively review a claim of permit 
or permit process deficiency. Third, the EPA is finalizing a 
requirement for permitting authorities to respond in writing to 
significant comments (when such comments are received during the public 
comment period). The permitting authority must provide certain 
documents including the statement of basis and (when applicable) the 
written response to comment document along with the proposed permit for 
the EPA's 45-day review period. To provide additional clarity and 
transparency around the petition process, the agency is also finalizing 
the proposed regulatory text describing the documents that may be 
considered when reviewing title V petitions. Finally, as described 
below in this preamble the EPA intends, where practicable, to make key 
dates publicly available on the EPA Regional websites (i.e., the end of 
the agency's 45-day review period and the end of the 60-day period in 
which a petition can be submitted).

A. Petition Submission

1. Petition Submission to EPA
    As proposed, the EPA is adding a new provision to part 70 that 
requires petitions to be submitted using one of three methods listed in 
the new Sec.  70.14, using specific information provided on the title V 
petitions website. Petitioners are encouraged to submit title V 
petitions through the electronic submittal system, the agency's 
preferred method. The EPA has developed an electronic submittal system 
for title V petitions through the Central Data Exchange (CDX), and 
information on how to access and use the system is available at the 
title V petitions website: https://www.epa.gov/title-v-operating-permits/title-v-petitions. While the current electronic submittal 
system was designed using CDX, the EPA recognizes that adjustments to 
the system or an entirely different electronic submittal system may be 
needed in the future. Therefore, the title V petitions website will 
provide access to the designated electronic submittal system in use at 
any given time, which will remain the primary and preferred method for 
receiving title V petitions. The electronic submittal system allows for 
a direct route to the appropriate agency staff, and it also provides 
immediate confirmation that the EPA has received the petition and any 
attachments.
    There are two other acceptable methods for submitting a title V 
petition listed in 40 CFR 70.14. First, the petition may be submitted 
to the agency through the email address designated for that purpose on 
the title V petitions website. The current email address for this 
purpose is: [email protected]. This address was originally 
established as an alternative method for use in instances when the 
electronic submittal system is not available, and the agency 
anticipates that this type of electronic submission would primarily be 
used if a petitioner experiences technical difficulty when trying to 
submit a petition through the electronic submittal system. Second, the 
new Sec.  70.14 provides for submission of a petition in paper to a 
designated physical address. The EPA is providing this alternative 
because it recognizes that there may be situations in which electronic 
submission is not feasible. The agency anticipates that this 
alternative would mainly be used by petitioners without access to the 
internet at the time of petition submittal. The current address 
designated for submission of paper petitions (by mail or by courier) 
is: U.S. EPA, Office of Air Quality Planning and Standards, Air Quality 
Policy Division, Operating Permits Group Leader, 109 T.W. Alexander Dr. 
(C504-05), Research Triangle Park, NC 27711. Additional information on 
these alternative methods for submittal is available at the title V 
petitions website.
    As described in our responses to comments in Section IV of this 
document, the EPA is making this change to improve the tracking of 
petitions and to reduce confusion for petitioners. The agency strives 
to make the submittal system easy to use and to provide to petitioners 
automatic receipts that give assurance a petition was received within 
the required time frame. Since the public comment period for the 
proposal closed, all title V petitions entering the agency that the EPA 
is aware of have been electronically received through the CDX system or 
[email protected]. Some duplicate paper copies have also been 
sent to the new physical address. The regulatory text at Sec.  70.14 
finalized in this action explains that once a petition and any 
attachments have been successfully submitted using one method (e.g., 
once an automatic receipt is received through the CDX system), 
duplicate copies should not be submitted via another method. Duplicate 
submissions are unnecessary, and if petitioners only submit a petition 
using one method, it

[[Page 6434]]

will expedite the administrative process and improve the EPA's 
efficiency in reviewing petitions. Consistent with the discussion in 
the proposal, the regulatory revisions finalized in this action also 
provide that the agency is not obligated to consider petitions 
submitted through any means other than the three identified in this 
rule.
2. Required Copies of the Petition to the Permitting Authority and 
Applicant
    The EPA is also finalizing a revision to the part 70 regulations to 
add language to 40 CFR 70.8(d) that requires the petitioner to provide 
copies of its petition to the permitting authority and the permit 
applicant. Section 505(b)(2) of the Act already contains this 
requirement, but it was not previously specified in the part 70 
regulations. This revision now fills that gap in the regulations.

B. Required Petition Content and Format

1. Required Petition Content
    As proposed, the EPA is revising part 70 to require standard 
content that must be included in a title V petition, laying out the 
agency's expectations with more specificity to assist petitioners in 
understanding how to make their petitions complete and to enhance the 
EPA's ability to review and respond to them promptly. Under the 
revisions finalized in this action, a new section of the title V part 
70 regulations, 40 CFR 70.12, adds the following list of required 
elements:
     Identification of the proposed permit on which the 
petition is based.\4\ A petition would be required to provide the 
permit number, version number, or any other information by which the 
permit can be readily identified. In addition, the petition must 
specify whether the relevant permit action is an initial issuance, 
renewal, or modification/revision, including minor modifications/
revisions.
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    \4\ The proposed permit is the version of the permit the 
permitting authority forwards to the EPA for the agency's 45-day 
review under CAA section 505(b)(1). A proposed permit may be for any 
of the following permit actions: Initial permit, renewal permit, or 
permit modification/revision.
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     Identification of Petition Claims. Any issue raised in the 
petition as grounds for an objection must be based on a claim that the 
permit, permit record, or permit process is not in compliance with the 
applicable requirements under the Act or requirements under part 70. 
Any argument or claim the petitioner wishes the EPA to consider in 
support of each issue raised must be contained within the body of the 
petition or in an attachment, provided that the body of the petition 
provides a specific citation to the referenced information in the 
attachment and an explanation of how that information supports the 
claim. In determining whether to object, the Administrator will not 
consider information incorporated into the petition by reference. The 
EPA is finalizing this requirement because merely incorporating by 
reference an argument or claim presented elsewhere (for example, in 
comments offered during the public comment period on a draft permit, 
or, as another example, in claims raised in a different title V 
petition) is generally not sufficient to demonstrate that the 
Administrator must object to a particular title V permit. Yet, without 
such a requirement, petitioners might be tempted to rely on such 
incorporation rather than fully presenting the claim to the agency in 
the petition with an adequate demonstration of why an objection is 
appropriate to the particular permit at issue. The full presentation of 
claims in the petition should help expedite the administrative process 
and improve the EPA's efficiency in reviewing petitions. However, 
petitions may and should still provide citations to support each claim 
presented in the petition (e.g., citations to caselaw, statutory and 
regulatory provisions, or portions of the permit record), along with an 
explanation of how the cited material supports the claim, as needed. 
For each claim raised, the new Sec.  70.12 provides that the petition 
must identify the following:
    [cir] The specific grounds for an objection, citing to a specific 
permit term or condition where applicable.
    [cir] The applicable requirement under the CAA or requirement under 
part 70 that is not met. The term ``applicable requirement'' of the CAA 
for title V purposes is defined in 40 CFR 70.2. Note that under that 
definition, the term ``applicable requirement'' includes only 
requirements under the Clean Air Act, and does not include other 
requirements (e.g., under the Endangered Species Act or the Clean Water 
Act) to which a source may be subject.
    [cir] An explanation of how the term or condition in the proposed 
permit, or relevant portion of the permit record or permit process, is 
not adequate to comply with the corresponding applicable requirement 
under the CAA or requirement under part 70.
    [cir] If the petition claims that the permitting authority did not 
provide for the public participation procedures required under 40 CFR 
70.7(h), the petition must identify specifically the required public 
participation procedure that was not provided.
    [cir] Identification of where the issue in the claim was raised 
with reasonable specificity during the public comment period provided 
for in 40 CFR 70.7(h), citing to any relevant page numbers in the 
public comment as submitted and attaching the submitted public comment 
to the petition. If the grounds for the objection were not raised 
during the public comment period, the petitioner must demonstrate that 
it was impracticable to raise such objections within the period unless 
they arose after such a period, as required by section 505(b)(2) of the 
Act and 40 CFR 70.8(d).
    [cir] Unless the exception under CAA section 505(b)(2) and 40 CFR 
70.8(d) discussed in the immediately preceding bullet applies, the 
petition must identify where the permitting authority responded to the 
public comment, including the specific page number(s) in the document 
where the response appears, and explain how the permitting authority's 
response to the comment is inadequate to address the claimed 
deficiency. If the written RTC does not address the public comment at 
all or if there is no RTC, the petition should state that.
    In addition to including all specified content, it is important 
that the information provided in the petition or any analysis completed 
by the petitioner also be accurate. However, including all the required 
content would not necessarily result in the Administrator granting an 
objection on any particular claim raised in a petition. For example, a 
petitioner could include all the required information but not 
demonstrate noncompliance, or the petition might point to a specific 
permit term as not being adequate to comply with a standard established 
under the CAA, but the EPA may determine that the standard does not 
apply to the source.
    CAA Section 505(b)(2) and the implementing regulations at 40 CFR 
70.8(d) provide for a 60-day window in which to file a title V 
petition, which runs from the expiration of the EPA's 45-day review 
period. A petition received after the 60-day petition deadline is not 
timely; therefore, it is important that the agency have sufficient 
information to determine if a petition was timely filed. Timeliness may 
be shown by the electronic receipt date generated upon submittal of the 
petition through the agency's electronic submittal system, the date and 
time the emailed petition was received, or the postmark date generated 
for a paper copy mailed to the agency's designated

[[Page 6435]]

physical address.\5\ It is helpful, but not required, for the petition 
to provide key dates, such as the end of the public comment period 
provided under 40 CFR 70.7(h) (or parallel regulations in an EPA-
approved state, local or tribal title V permitting program), or the 
conclusion of the EPA's 45-day review period for the proposed permit.
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    \5\ The agency notes that it does not generally expect that 
petitioners would need to include additional information in the 
petition itself to demonstrate that the petition was timely 
submitted, as the electronic receipt date from the electronic 
submittal system, the receipt date on the email submission, or the 
postmark date generated for a paper copy mailed to the agency's 
designated physical address should generally be sufficient to 
determine whether a submission was timely. However, if the 
petitioner wishes to provide additional explanation regarding a 
petition's timeliness, they may do so in the petition.
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    The use of incorporation by reference of other documents, in whole 
or in part, into petitions has created inefficiencies in the EPA's 
review of such petitions. As noted earlier in this section, under 
``identification of petition issues'' in the new mandatory content 
requirements, the EPA requires any claim or argument a petitioner 
wishes the EPA to consider in support of an issue raised as a petition 
claim to be included in the body of a petition, or if reference is made 
to an attachment, the body of the petition must provide a specific 
citation to the referenced information and an explanation of how the 
referenced information supports the claim. Merely incorporating a claim 
or argument into a petition by reference from another document is 
inconsistent with the petitioner's demonstration obligations under the 
statute and would extend the petition review time as the agency spends 
time searching for and then attempting to decipher the petitioner's 
intended claim. In the EPA's experience, where claims have been 
incorporated by reference it is typically not clear that the specific 
grounds for objection have been adequately presented by the petitioner, 
which could lead to the EPA denying because the petition has failed to 
meet the demonstration burden. Relatedly, petitioners have sometimes 
used incorporation by reference to include comments from a comment 
letter in a petition, but a comment letter alone would typically not 
address a state's response to the comment. See, e.g. In the Matter of 
Consolidated Environmental Management, Inc.--Nucor Steel Louisiana, 
Order on Petition Numbers VI-2010-05, VI-2011-06 and VI-2012-07 
(January 30, 2014) at 16 (noting that the ``mere incorporation by 
reference . . . without any attempt to explain how these comments 
relate to an argument in the petition and without confronting [the 
State's] reasoning supporting the final permit is not sufficient to 
satisfy the petitioner's demonstration burden''). In practice, the EPA 
has found that the incorporation of public comments or other documents 
by reference into a petition can lead to confusion concerning the 
rationale for the petitioner's arguments, as it is frequently unclear 
which part of the comment or document is incorporated, how it relates 
to the particular argument in the petition, and the precise intent of 
the incorporation. In addition, the incorporation of comments or other 
documents by reference increases the agency's review time, as the EPA 
would have to review more than one document in an attempt to fully 
determine the argument that a petitioner is making.
    The EPA intends this change to help ensure that petitions received 
clearly state the main points in the petition, and if petitioners want 
to support their claim with attachment of additional materials, that 
they cite to the information in the attachment with an explanation as 
to why they are citing to it. The full presentation of claims in the 
petition is anticipated to help expedite the administrative process and 
improve the EPA's efficiency in reviewing petitions. However, petitions 
may and should still provide citations to support each claim presented 
in the petition (e.g., citations to caselaw, statutory and regulatory 
provisions, or portions of the permit record), along with an 
explanation of how the cited material supports the claim, as needed. To 
illustrate, the EPA provided an example claim in the proposal, and this 
still serves as a concise and effective presentation of a hypothetical 
claim that includes all pieces of required content, including citations 
to two exhibits. See 81 FR 57836 (August 24, 2016).
    For further transparency and clarity, the EPA reiterates from the 
proposal that some types of information are not necessary to include 
when preparing an effective petition. In doing so, the EPA hopes to 
ease the effort associated with preparing a petition while promoting 
succinctness. For example, while a petitioner needs to cite to the 
legal authority supporting its specific claim, a petition does not need 
to include background or history on general aspects of the CAA. If a 
petitioner wishes to include additional information for an alternate 
purpose unrelated to the EPA's review of the specific petition claim, 
the EPA recommends appending this information to the petition as a 
separate document and identifying the purpose for which it is provided.
    As described in our responses to comments in Section IV of this 
document, commenters generally supported the regulatory text the EPA is 
finalizing in 40 CFR 70.12. A few commenters requested clarity on 
particular elements such as timeliness and the inclusion of information 
within the body of the petition, and in response the agency revised the 
regulatory text and supplemented the descriptions in this preamble with 
additional information that may provide further explanation as to the 
expectations for petitions. The EPA anticipates that these mandatory 
petition content requirements will help petitioners to succinctly focus 
their claims and present them effectively. Further, it will likely 
decrease the instances in which the Administrator denies a petition 
because the petitioner did not provide an adequate demonstration.
2. Required Petition Format
    In this final rule, the EPA requires the use of a standard format 
that follows the same order as identified in the previous section 
regarding the list of required petition content. Regulatory language to 
this effect is included in the new provision, 40 CFR 70.12. The EPA 
anticipates this standard organization will reduce review time as the 
general location of specific details will now be the same in every 
petition received. These format requirements may help petitioners 
better understand what is, and what isn't, necessary in an effective 
title V petition.
    Most commenters addressed content and format together; only two 
commenters submitted supportive comments specifically focused on format 
only. Therefore, the EPA addressed relevant comments on both content 
and format in Section IV of this document and is finalizing the 
formatting requirements as proposed.

C. Administrative Record Requirements

1. Response to Comments
    Under the existing 40 CFR 70.7(h)(5), a permitting authority is 
required to keep a record of the commenters and also of the issues 
raised during the public participation process so that the 
Administrator may fulfill the obligation under CAA section 505(b)(2) to 
determine whether a title V petition may be granted. This provision 
also currently requires that such records be available to the public. 
As proposed, the EPA is revising 40 CFR 70.7 and adding new regulatory 
language that requires that a permitting authority also respond

[[Page 6436]]

in writing to significant comments received during the public 
participation process for a draft title V permit.\6\ Such responses can 
be (and often are) prepared and collected together in one RTC document, 
which can be made available to the public in various ways, such as by 
posting on the permitting authority's website.
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    \6\ The EPA is aware that many permitting authorities elect to 
respond to all comments. While the EPA does not require permitting 
authorities to respond to all comments (but rather all significant 
comments), the Agency does not intend to discourage permitting 
authorities from that practice.
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    Significant comments in this context include, but are not limited 
to, comments that concern whether the title V permit includes terms and 
conditions addressing federal applicable requirements and requirements 
under part 70, including adequate monitoring and related recordkeeping 
and reporting requirements. It is the responsibility of the permitting 
authority to determine, in the first instance, if a comment submitted 
during the public comment period on a draft permit is significant.
2. Statement of Basis
    The statement of basis document, which describes the legal and 
factual basis for the permit terms or conditions, is a necessary 
component for an effective permit review. The existing regulations in 
place prior to today's action required permitting authorities to send 
this ``statement of basis'' to the EPA and ``to any other person who 
requests it'' but did not identify a particular time frame for doing 
so. 40 CFR 70.7(a)(5) (2018). In most situations, the permitting 
authority makes the statement of basis document available for the 
public comment period on the draft permit, for the EPA's 45-day review 
period, and during the 60-day petition period. To address any occasions 
where it may be absent during these steps in the permit issuance 
process, the EPA is finalizing new language in the part 70 regulations 
that reaffirms its importance and requires its inclusion at all points 
in the permit review process for every permit. To that end, the EPA is 
revising 40 CFR 70.4(b), 70.7(h) and 70.8(a) to specifically identify 
that the statement of basis document is a required document, to be 
included during the public comment period and the EPA's 45-day review 
period.\7\ Commenters suggested the originally proposed language be 
changed, as the ``statement of basis'' is not a term defined under 40 
CFR 70.2. Therefore, in this final rule, the EPA has revised the new 
regulatory text to refer to ``the statement required by Sec.  
70.7(a)(5) (sometimes referred to as the `statement of basis')''
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    \7\ The text in 40 CFR 70.7(a)(5) remains unchanged.
---------------------------------------------------------------------------

3. Correction to Incorrect Reference
    In this final rule, the EPA is also amending 40 CFR 70.4(b) to 
correct a reference. The regulations at 70.4(b) address the 
requirements for initial state submissions for part 70 operating permit 
programs, with 70.4(b)(3) requiring that the submission include a legal 
opinion that demonstrates that the state has adequate legal authority 
to carry out several listed functions. One of those functions relates 
to public availability of certain information for title V permitting. 
Specifically, the existing language in 40 CFR 70.4(b)(3)(viii) read: 
``Make available to the public any permit application, compliance plan, 
permit, and monitoring and compliance, certification report pursuant to 
section 503(e) of the Act, except for information entitled to 
confidential treatment pursuant to section 114(c) of the Act. The 
contents of a part 70 permit shall not be entitled to protection under 
section 115(c) of the Act.'' However, the parallel statutory provision 
in CAA section 503(e) refers to section 114(c) of the Act, not 115(c), 
stating that: ``The contents of a permit shall not be entitled to 
protection under section 7414(c) of this title.'' Consistent with the 
focus of 40 CFR 70.4(b)(3)(viii), CAA section 114(c) pertains to the 
availability of records, reports, and information to the public, 
whereas CAA section 115(c) is a reciprocity provision for a statutory 
section addressing endangerment of public health or welfare in foreign 
countries from air pollution emitted in the United States. Therefore, 
the EPA is revising the citation in the last sentence of 40 CFR 
70.4(b)(3)(viii) to correctly refer to section 114(c) of the Act to 
ensure the regulations comport with CAA section 503(e).
4. Commencement of the EPA 45-Day Review Period
    The agency considers both the statement of basis and the written 
RTC (where applicable) to be integral components of the permit record. 
Having access to these critical documents during the EPA's 45-day 
review period should improve the efficiency of the agency's review. 
Further, such access also ensures that these documents are completed 
and available during the petition period under CAA section 505(b)(2). 
Therefore, the EPA is revising part 70 to require that any proposed 
permit that is transmitted to the agency for its 45-day review must 
include both the statement of basis and the written RTC (where 
applicable) among the necessary information as described in 40 CFR 
70.8.
    While many permitting authorities use a sequential review process, 
in which the public comment period (which typically lasts 30 days) 
closes before the proposed permit is sent to the EPA for its 45-day 
review, other permitting authorities conduct the public comment period 
and 45-day EPA review period concurrently for some permits, 
particularly in situations where the permitting authority does not 
anticipate receiving significant public comments on the draft permit. 
This process is commonly referred to as ``concurrent'' (or 
``parallel'') review. This final rule now distinguishes between the two 
review processes by identifying the different document(s) required for 
each.
    For sequential review, the permitting authority must submit the 
necessary documents including the statement of basis and a written RTC 
(if a significant comment was received during the public comment 
period) with the proposed permit as described in 40 CFR 70.8(a)(1) and 
40 CFR 70.8(a)(1)(i). The Administrator's 45-day review period for this 
proposed permit will not begin until all such materials have been 
received by the EPA.
    For concurrent review, the permitting authority must submit the 
necessary documents including the statement of basis with the proposed 
permit to begin the EPA's 45-day review, per 40 CFR 70.8(a)(1) and 40 
CFR 70.8(a)(1)(ii). Because the public comment period is not yet 
complete, the written RTC is not required at this time. However, if a 
significant public comment is received during the public participation 
process, the Administrator will no longer consider the submitted permit 
a proposed permit. In such instances, the permitting authority will 
need to consider those comments, make any necessary revisions to the 
permit or permit record, prepare a written RTC, and submit the revised 
proposed permit to the EPA with the RTC, the statement of basis, and 
any other required supporting information, with any revisions that were 
made to address the public comments, in order to start the EPA's 45-day 
review period.
5. Notification to the Public
    Because the 60-day petition period runs from the end of the EPA's 
45-day review period, and the date a proposed permit is received by the 
EPA has not always been apparent, the petition deadline has sometimes 
been unclear to members of the public who might be interested in 
submitting petitions. To

[[Page 6437]]

date, the agency has encouraged permitting authorities to provide 
notifications to the public or interested stakeholders regarding the 
timing of proposal of permits to the EPA, for example by making that 
information available either online or in the publication in which 
public notice of the draft permit was given. The EPA continues to 
encourage this practice. In addition, the agency intends to post when a 
proposed permit is received and the corresponding 60-day deadline for 
submitting a petition on the EPA Regional Office websites where 
practicable. However, the responsibility for ensuring that a petition 
is timely submitted ultimately rests with the petitioner, so 
stakeholders should feel free to contact the relevant staff in the 
appropriate EPA Regional Office if they have questions about the timing 
of the petition process for draft permits of interest to them.

D. Documents That May Be Considered in Reviewing Petitions

    Questions regarding what can be or is considered during the 
petition review may have left stakeholders uncertain as to what to 
provide for the EPA's consideration during its review of a petition. At 
proposal, the EPA tried to address some of those concerns with new 
regulatory text under 40 CFR 70.13. With some minor revisions intended 
as clarification, the agency is now finalizing the text, which 
indicates that information considered generally includes the 
administrative record for the proposed permit, and the petition, 
including the petition attachments. The administrative record for a 
particular proposed permit includes the draft and proposed permits; any 
permit applications that relate to the draft or proposed permits; the 
statement required by Sec.  70.7(a)(5), sometimes referred to as the 
`statement of basis'; any comments the permitting authority received 
during the public participation process on the draft permit; the 
permitting authority's written responses to comments, including 
responses to all significant comments raised during the public 
participation process on the draft permit; and all materials available 
to the permitting authority that are relevant to the permitting 
decision and that the permitting authority made available to the public 
according to Sec.  70.7(h)(2). If a final permit is available during 
the agency's review of a petition on a proposed permit, that document 
may also be considered as part of making a determination whether to 
grant or deny the petition.
    The EPA sometimes refers to resources outside the petition and the 
administrative record for the proposed permit to more fully evaluate 
whether there is a demonstrated flaw in the permit, permit record, or 
permit process. For example, the EPA may refer to statements the agency 
made at the time of the 1992 operating permit program final rule, or to 
statements made in prior relevant title V response orders. Other 
examples might include statements made by the agency when finalizing or 
revising new source performance standards for a particular source 
category, or requirements in an approved state implementation plan or 
approved title V program that might apply to the source's permit in 
question. However, the petition review process generally focuses 
primarily on the administrative record for the proposed permit and on 
the petition itself as the new regulatory text in 40 CFR 70.13 
explains.

IV. Responses to Significant Comments on the Proposed Rule

    The EPA received 30 comments on the proposed rule. In this section, 
we summarize the major comments and our responses. For details on all 
comments and our responses, please refer to the RTC document in the 
docket for this rulemaking.

A. Electronic Submittal System for Petitions

1. Summary of Proposal
    The EPA proposed regulatory language that encouraged the use of the 
agency's electronic submittal system for title V petitions. Alternative 
methods for submittal were also identified in the proposed rule, 
including a designated email address and a specific physical address 
listed in the proposal and on the title V petition website. Relatedly, 
the EPA also proposed a revision to 40 CFR 70.8(d) to require the 
petitioner to provide copies of its petition to the permitting 
authority and the permit applicant in order to make the language 
consistent with the language in section 505(b)(2) of the Act.
2. Summary of Comments
    Ten commenters supported the centralized petition intake via the 
electronic submittal system. In addition, two commenters suggested 
identifying at least one physical address within the Code of Federal 
Regulations for when agency websites might be down, while another 
commenter cautioned against being too specific in the regulations as 
systems, names, or addresses may change. As the database was functional 
at the time of proposal, one commenter submitted a petition and 
suggested improvements for the database. This commenter recommended 
modifying the database to provide an electronic receipt that states the 
date of submission to both those who electronically file a public 
petition, and to the relevant EPA personnel. The commenter further 
noted experiencing some difficulty with the email system while 
submitting a title V petition before the close of the comment period on 
the proposed rule.
    No adverse comments were received regarding the new language 
proposed for 40 CFR 70.8(d) to require a petitioner to provide copies 
of its petition to the permitting authority and permit applicant.
3. EPA Response
    We appreciate commenter support for the electronic submittal system 
and the alternate methods for submittal we identified. We agree with 
the comments noting that these changes reduce confusion, both for 
petitioners submitting petitions and well as for agency personnel in 
trying to locate a submitted petition. Further, we agree with those 
commenters that view this specification of methods as a streamlining 
measure--it is more efficient to track petitions when they enter the 
agency through one of the three direct routes, and these changes help 
ensure that the staff providing an initial review of petitions can 
access them in a timely manner.
    The EPA recognizes the concerns regarding database and email 
functionality identified by one commenter. Upon reviewing the comment, 
agency staff tested and adjusted the database to ensure that automatic 
notification of receipt was functional. The EPA intended the system to 
generate automatic receipts at submittal, and thanks the commenter for 
bringing the issue to our attention so that it could be addressed. 
However, we do not understand either comment as objecting to the 
proposed changes to the regulatory text to require use of one of the 
three identified submission methods. Rather, the EPA takes these 
comments as providing constructive feedback to make the available 
systems more useful.
    Since the public comment period on the proposal closed, all title V 
petitions entering the agency have been electronically received through 
the CDX system or [email protected]. Though the agency noted at 
proposal that there is no need to submit petitions through more than 
one method, several petitioners sent a duplicate paper copy to the 
specified physical address--these were also successfully received. We 
recognize that these petitioners may

[[Page 6438]]

have opted to send petitions through more than one method to ensure 
timely delivery while this rulemaking was in the proposal stage; now 
that we are finalizing these changes, the EPA continues to promote the 
submittal of petitions through the electronic submittal system and 
reiterates the agency's preference that only one method of submission 
be used for a petition to reduce the confusion and inefficiencies that 
can arise from duplicate submissions.
    The agency disagrees with commenters that suggest a specific 
physical address should be listed in the Code of Federal Regulations 
and agrees with the comment that cautioned against providing too much 
specificity in the regulations as systems, names, or addresses may 
change. While we understand that there are instances where electronic 
systems may be down, they are not likely to be unavailable for the 
entire 60-day petition period. Further, if such information were 
printed in the Code of Federal Regulations and an update needed to be 
made, the EPA would need to prepare notification of that change to be 
published; in the meantime, potential petitioners may be submitting 
petitions through the outdated information printed in the Code of 
Federal Regulations as the change is being processed. This could create 
confusion, cause delays, and add to agency printing costs.
    As noted earlier, since proposal the agency has received all 
petitions through either the CDX database or [email protected], 
with some duplicate petitions sent to the specified physical address. 
This further supports our decision not to list a specific physical 
address in the Code of Federal regulations, as the process appears to 
now be working smoothly for both petitioners and the agency.

B. Required Petition Content and Format

1. Summary of Proposal
    To assist the public with preparing their petitions, as well as to 
assist the EPA in review of petitions, the agency proposed to establish 
key mandatory content that must be included in title V petitions. These 
proposed requirements were based on statutory requirements under CAA 
section 505(b)(2) and aspects of the demonstration standard as 
interpreted by the EPA in numerous orders responding to title V 
petitions. The agency's proposal would require that any information a 
petitioner wanted considered in support of an issue raised as a 
petition claim be included in the body of the petition because 
information incorporated by reference into a petition would not be 
considered. The EPA also proposed to establish format requirements to 
further assist the agency in its review process. To illustrate how the 
material that would be required under the proposed regulatory revisions 
could be presented succinctly and effectively, the agency included an 
``example claim.'' Further, the EPA solicited comment on questions 
regarding whether it should impose page limits on title V petitions.
2. Summary of Comments
    Nine commenters generally supported the proposal for content and 
formatting requirements as a means to provide more consistency in 
petition submissions, with some suggested changes. However, two 
commenters opposed the changes because they believed the proposal was 
too restrictive and created additional barriers to public engagement in 
the process. A couple of commenters were also concerned about the 
potential restrictiveness of the proposal to disregard information 
incorporated only by reference into petitions, and the proposed 
requirement that ``all pertinent information in support of each issue 
raised as a petition claim shall be incorporated within the body of the 
petition.'' Finally, of the ten commenters that provided responses to 
the questions posed by the EPA regarding page limits, only two 
commenters supported such a measure.
3. EPA Response
    Commenters generally supported the proposed new content and format 
requirements and the EPA is largely finalizing those as proposed. The 
content that will now be required by the agency is consistent with 
statements and conclusions that the EPA previously made in title V 
petition orders and summarized in the proposal, and it is the key 
information the EPA focuses on when reviewing petition claims of 
potential title V permitting deficiencies. Detailing the specific 
information necessary for evaluating a petition claim should increase 
public transparency and understanding of the title V petition and 
review process; thus, the EPA disagrees with the commenters that found 
the content and format requirements to be too restrictive and unduly 
burdensome. Incorporating this information into the regulatory text 
means that petitioners can consult the regulations to determine what 
content and format is required for petitions, rather than needing to 
discern the EPA's practices and preferences on these key points from 
responses to prior title V petitions. The EPA anticipates that these 
mandatory petition content requirements and standard formatting will, 
thus, help petitioners to succinctly focus their claims and present 
them effectively. Further, the EPA expects these requirements to reduce 
the instances in which petitioners fail to provide an adequate 
demonstration because they are not aware of the weight the EPA puts on 
particular information when reviewing petition claims. With these 
changes, the EPA anticipates receiving petitions that more clearly 
articulate the petition claims and the basis for them, focusing on key 
information, including the alleged deficiency in the permit or permit 
process; the applicable requirements under the CAA or requirements 
under 40 CFR part 70 that are in question; where the issue was raised 
during the public comment period (or a demonstration as to why it was 
impracticable to do so or that the grounds for the objection arose 
after the public comment period closed); how the state responded to the 
comment; and why the state's response allegedly does not adequately 
address the issue.
    Regarding the proposed requirement that ``all pertinent information 
in support of each issue raised as a petition claim shall be contained 
within the body of the petition,'' the agency recognizes the concern 
raised by a commenter that requiring ``all'' such information to be 
included in the petition itself may occasionally be too rigorous a 
standard. The EPA's original intent was to receive petitions that 
clearly state main points in the petition, and if petitioners want to 
support their claim with additional attachment materials, in the 
petition they could cite to the information in the attachment with an 
explanation as to why they are citing to it. To illustrate, the EPA 
provided an example claim in the proposal, and this still serves as a 
good indication of a concise and effective presentation of a 
hypothetical claim that includes all pieces of required content, 
including citations to two exhibits. See 81 FR 57836 (August 24, 2016). 
To address the commenter concern and provide additional clarity on 
expected content, the agency is revising the regulatory text to read 
``[a]ny arguments or claims the petitioner wishes the EPA to consider 
in support of each issue raised must be contained within the body of 
the petition.''
    Finalizing these changes to the regulatory text falls within the 
EPA's inherent discretion to formulate procedures to discharge its 
obligations under CAA section 505(b)(2). The revisions are aimed in 
part at helping

[[Page 6439]]

petitioners ensure that they are including in their petitions the 
necessary information to satisfy the demonstration burden. 
Specifically, to compel an objection by the EPA, CAA section 505(b)(2) 
requires the petitioner to demonstrate that a permit is not in 
compliance with requirements of the Act, including requirements of the 
applicable implementation plan. The Act does not dictate all the 
information that must be included or the format in which that 
information should be presented; nor does it address what kind of 
showing must be made in order to demonstrate that an objection is 
warranted. Courts have determined that the term ``demonstrates'' in CAA 
section 505(b)(2) is ambiguous and have accordingly deferred to the 
EPA's reasonable interpretation of that term. See, e.g., MacClarence v. 
EPA, 596 F.3d 1123, 1130-31 (9th Cir. 2010) (finding the EPA's 
expectation that a petition provide ``references, legal analysis, or 
evidence'' a reasonable interpretation of the term ``demonstrates'' 
under CAA section 505(b)(2)). Similar procedural requirements have been 
established for other EPA programs and processes, including the 
procedures for appeals filed with the Environmental Appeals Board. See 
78 FR 5281 (January 25, 2013) (adopting revisions to ``codify current 
procedural practices, clarify existing review procedures, and simplify 
the permit review process''). The importance of the demonstration 
burden in determining whether to grant an objection in response to a 
petition was discussed in more detail in the proposal and in several 
title V orders. See, e.g., In the Matter of Consolidated Environmental 
Management, Inc.--Nucor Steel Louisiana, Order on Petition Numbers VI-
2011-06 and VI-2012-07 (June 19, 2013) at 4-7.
    Finally, the EPA appreciates commenters that responded to our 
request for comment on whether page limits should be established for 
title V petitions as a means of promoting concise petitions and to 
further facilitate efficient and expeditious review of petitions by the 
EPA. Commenters generally opposed setting page limits as they could 
unduly limit a petitioner's ability to explain deficiencies. The agency 
will not be taking any action regarding page limits at this time.

C. Administrative Record Requirements

1. Summary of Proposal
    The EPA proposed to revise 40 CFR 70.7 to require a permitting 
authority to respond in writing to significant comments received during 
the public participation process for a draft permit. The agency 
proposed a regulatory revision to 40 CFR 70.8 that would require a 
written RTC and the statement of basis document to be included as part 
of the proposed permit record that is sent to the EPA for its review 
under CAA section 505(b)(1). Under the proposal, if no significant 
comments were received during a public comment period, the permitting 
authority would be expected to prepare and submit to EPA for its 45-day 
review a statement to that effect. In addition, to stress the 
importance of the statement of basis document, the EPA proposed to 
revise 40 CFR 70.4(b), 70.7(h), and 70.8(a) to specifically identify 
the statement of basis document as a necessary part of the permit 
record throughout the permitting process. Further, the agency proposed 
to amend an incorrect reference in 40 CFR 70.4(b)(3)(viii) that cited 
to section 115(c) of the Act, rather than the correct section 114(c) of 
the Act. Finally, the EPA proposed to revise 40 CFR 70.7(h)(7) to 
require that within 30 days of sending the proposed permit to the EPA, 
that permitting authorities must provide notification to the public 
that the proposed permit and the response to significant public 
comments are available. Relatedly, the agency suggested another means 
to notify the public could be for the EPA to post when a proposed 
permit is received and the corresponding 60-day deadline for submitting 
a petition on the EPA Regional Office websites.
2. Brief Summary of Comments
    Twelve commenters supported the proposed requirement that 
permitting authorities prepare a written RTC, while three opposed 
because they believe the written RTC should be optional. Commenters 
also expressed concern over the proposed requirement to respond to 
``significant'' comments for various reasons. Identifying the statement 
of basis as a necessary part of the permit record was supported by two 
commenters; however, clarification was requested by three commenters, 
as ``statement of basis'' is not a defined term in the regulations. 
Regarding the proposed requirement to submit the RTC and statement of 
basis with the proposed permit, two commenters indicated support. 
Sixteen commenters urged the EPA to clarify that concurrent or parallel 
review remains permissible, given that the proposed revisions to the 
regulatory text could be read to preclude it.\8\ The agency interprets 
those comments to potentially support providing necessary information 
with the proposed permit if it does not prevent the practice of 
concurrent review. On the other hand, one commenter opposes concurrent 
review, asserting it is unnecessary and unworkable, in the commenter's 
view. Twelve commenters opposed the proposed requirement for permitting 
authorities to notify the public that the proposed permit was sent to 
the EPA, while only one commenter supported it. Finally, eight 
commenters supported the agency's suggestion to post relevant dates for 
submitting petitions.
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    \8\ In concurrent review, also sometimes referred to as parallel 
review, the EPA's 45-day review and the public comment period (which 
typically lasts 30 days) occur during overlapping times. For 
sequential review, the EPA's 45-day review period does not begin 
until the public comment period ends.
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3. EPA Response
    The EPA is finalizing the requirement to prepare a written RTC when 
significant comments are received on a draft permit. This requirement 
was based on a recommendation from the Clean Air Act Advisory 
Committee's (CAAAC's) Title V Task Force.\9\ Commenters generally 
supported this change. While three commenters did not support this new 
requirement because they believe it should be optional and/or could 
expose permitting authorities to allegations of failure to respond to 
comments, under general principles of administrative law, it is 
incumbent upon an administrative agency to respond to significant 
comments raised during the public comment period. See, e.g., Home Box 
Office v. FCC, 567 F. 2d 9 35 (D.C. Cir. 1977) (``the opportunity to 
comment is meaningless unless the agency responds to significant points 
raised by the public.'') The EPA has long held the view that RTCs for 
the proposed permit can play a critical role in the agency's 
formulation of a response to a title V petition on that proposed 
permit. See, e.g. In the Matter of Consolidated Edison Company

[[Page 6440]]

Hudson Avenue Generating Station, Order on Petition Number II-2002-10 
(September 30, 2003) at 8 (noting that the permitting authority ``has 
an obligation to respond to significant public comments and adequately 
explain the basis of its decision''). See, also, In the Matter of Onyx 
Environmental
---------------------------------------------------------------------------

    \9\ In 2004, the Clean Air Act Advisory Committee (CAAAC) 
established a Task Force to evaluate the title V program. The 18-
member panel, comprised of industry, state, and environmental group 
representatives, identified what Committee members believed was and 
was not working well. After hosting public meetings and receiving 
written feedback, and compiling the information with the personal 
experience of panel members, the Title V Task Force issued a final 
report that highlighted concerns and recommendations for 
improvement. Under Recommendation 1, the majority of Task Force 
members agreed that if a permitting authority receives comments on a 
draft permit, it is essential that the permitting authority prepare 
a written response to comments. See Final Report to the Clean Air 
Act Advisory Committee on the Title V Implementation Experience: 
Title V Implementation Experience (April 2006). The Title V Task 
Force Final Report is available at: https://www.epa.gov/caaac/final-report-clean-air-act-advisory-committee-title-v-implementation-experience.
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    Services, Petition V-2005-1 (February 1, 2006) at 7; In the Matter 
of Louisiana Pacific Corporation, Order on Permit Number V-2006-3 
(November 5, 2007) at 4-5; In the Matter of Wheelabrator Baltimore, 
L.P., Order on Permit Number 24-510-01886 (April 14, 2010) at 7. The 
agency has denied petition claims where the Petitioner fails to 
acknowledge or react to a permitting authority's final reasoning in the 
RTC. See, In the Matter of Gallatin Fossil Plant, Order on Permit 
Number 561209 (January 25, 2018) at 10. See, also, In the Matter of 
Consolidated Environmental Management, Inc.--Nucor Steel Louisiana, 
Order on Petition Nos. VI-2011-06 and VI-2012-07 at 7 (June 19, 2013). 
Thus, the EPA does not agree with the assertion by some commenters that 
a written response to significant comments should be optional. 
Moreover, it is to the benefit of the permitting authority to respond 
to significant comments, as it is an opportunity to further refine the 
permit record and/or articulate the permitting authority's rationale 
for decisions made in the permitting process. As the issues raised in a 
title V petition must generally be raised with reasonable specificity 
during the public comment period, responding to public comments gives 
the permitting authority a chance to address any issues that may become 
the basis for a petition. However, if the permitting authority does not 
respond to such comments in writing, it may not be clear to the EPA in 
reviewing a title V petition whether or how the permitting authority 
addressed the concerns raised during the public participation process. 
Without the availability of the written RTC during the petition period, 
there may be an increased likelihood of granting a particular claim on 
the basis that the state provided an inadequate rationale or permit 
record. See, e.g., In the Matter of Scrubgrass Generating Company, 
L.P., Order on Petition Number III-2016-5 (May 12, 2017) at 12 
(granting petition claim because the permitting authority did not 
respond to significant comments).
    Several commenters raised concerns regarding the term ``significant 
comment,'' with some suggesting that permitting authorities should be 
required to respond instead to all comments. The agency recognizes that 
a permitting authority's obligation to respond to public comments is 
informed by long history of administrative law and practice and thus is 
not creating a new definition of this term through this rulemaking. 
However, in the interests of providing some guidance on how the agency 
understands the term, the EPA notes that its interpretation of this 
phrase is informed by the D.C. Circuit's framing of the relevant 
inquiry in its review of regulatory actions by federal agencies. For 
example, that court has explained that: ``only comments which, if true, 
raise points relevant to the agency's decision and which, if adopted, 
would require a change in an agency's proposed rule cast doubt on the 
reasonableness of a position taken by the agency.'' Home Box Office, 
567 F.2d at 35 n. 58 (D.C. Cir. 1977). The court has also explained 
that an agency's response to public comments is critical to enable the 
reviewing body ``to see what major issues of policy were ventilated . . 
. and why the agency reacted to them as it did.'' Pub. Citizen, Inc. v. 
F.A.A., 988 F.2d 186, 197 (D.C. Cir. 1993). Thus, the requirement to 
address significant public comments is relevant to assuring the 
reviewing body that the agency's decision was based on a 
``consideration of the relevant factors.'' Sherley v. Sebelius, 689 
F.3d 776, 784 (D.C. Cir. 2012) (quoting Covad Commc'ns v. FCC, 450 F.3d 
528, 550 (D.C. Cir. 2006)).
    The agency further notes that it is the responsibility of the 
permitting authority to determine in the first instance whether a 
comment is significant. The agency is not creating a requirement to 
respond to all comments because it understands that some comments 
submitted during the public comment process may not be relevant or 
material to the permitting proceeding. See Nat'l Ass'n of Regulatory 
Util. Comm'rs v. F.E.R.C., 475 F.3d 1277, 1285 (D.C. Cir. 2007) (``The 
doctrine obliging agencies to address significant comments leaves them 
free to ignore insignificant ones.'') The agency recognizes that some 
permitting authorities do respond to all comments; this new requirement 
does not preclude that practice. To the contrary, the agency encourages 
that practice because it creates a clear record that the permitting 
authority understood and responded to each comment. In finalizing this 
change to require permitting authorities to respond in writing to 
significant comments, the EPA aims to promote more consistency among 
permitting authorities in meeting the minimum requirements under part 
70 and to have more complete permit records for the benefit of the 
permitting authority, the source, the public, and the EPA.
    While commenters were supportive of the revisions to the regulatory 
text to further highlight the importance of the statement of basis to 
permit records, they raised the point that ``statement of basis'' is 
not a defined term in 40 CFR 70.2. Commenters suggested instead to 
refer to the ``statement required by Sec.  70.7(a)(5).'' The EPA 
frequently uses the term ``statement of basis'' to refer to the 
statement required by Sec.  70.7(a)(5). To that end, the EPA will be 
adjusting the language to now read ``the statement required by Sec.  
70.7(a)(5) (sometimes referred to as the `statement of basis'),'' for 
clarity.
    We agree with the commenters that stated that these changes provide 
more access to and better understanding of permitting decisions, and 
provide better protection for public health. The EPA still believes the 
RTC (where applicable) and statement of basis are two critical 
documents in the administrative record for a proposed permit, and it 
notes that they generally provide beneficial details and explanations 
for terms and conditions found in the permit. When these documents are 
unavailable for the EPA's 45-day review period, the EPA usually cannot 
provide as effective a review under CAA section 505(b)(1) as when a 
full administrative record, including these documents, is available 
during that review. Moreover, when these documents are also unavailable 
for the 60-day petition period, potential petitioners may be missing 
important information to determine whether to submit a petition or may 
not be able to provide a full argument in support of any issues they 
may raise in a petition.
    Commenters raised concerns, however, with the proposed regulatory 
text, stating that it could be read to preclude concurrent review, a 
practice preferred by some permitting authorities and sources in some 
situations.\10\ As EPA noted in the preamble to the proposal, the EPA 
recognized that some permitting authorities run the public comment 
period and the 45-day EPA review period concurrently and the agency 
proposed regulatory text intended to make clear that this practice may 
continue, as long as no significant comment was received. If a 
significant public comment was received, the Administrator would no 
longer consider

[[Page 6441]]

the submitted permit as a proposed permit. In such instances, the 
permitting authority would need to make any necessary revisions to the 
permit or permit record, and per the regulations that we proposed, 
submit the revised proposed permit to the EPA with the RTC and 
statement of basis. Moreover, this submission would need to be 
accompanied by any other required supporting information under 40 CFR 
70.8(a)(1), and any revisions that were made to address the public 
comments, in order to start the EPA's 45-day review period. This 
reflected, and continues to reflect, the EPA's understanding of how 
such concurrent permitting programs should--and in most cases, do--
operate.
---------------------------------------------------------------------------

    \10\ As noted above, in concurrent review, also sometimes 
referred to as parallel review, the EPA's 45-day review and the 
public comment period (which typically lasts 30 days) occur during 
overlapping times. For sequential review, the EPA's 45-day review 
period does not begin until the public comment period ends.
---------------------------------------------------------------------------

    After evaluating the regulatory text and comments, the EPA 
recognized that alterations to the proposed regulatory text would more 
clearly effectuate the agency's desired change to require RTC 
availability (when applicable) without slowing the permit process in 
situations where concurrent review is used properly. Therefore, to 
respond to commenters, the EPA is finalizing changes to the regulatory 
text that more clearly specify how the new administrative record 
requirement works for each of the two permit review processes:
    Sequential review: The permitting authority must submit the 
necessary documents including the statement of basis and a written RTC 
(if significant comment was received during the public comment period) 
with the proposed permit per 40 CFR 70.8(a)(1)(i). The Administrator's 
45-day review period for this proposed permit will not begin until such 
materials (except the final permit) have been received by the EPA.
    Concurrent review: The permitting authority must submit the 
necessary documents including the statement of basis with the proposed 
permit to begin the EPA's 45-day review per 40 CFR 70.8(a)(1)(ii). 
However, if a significant public comment is received during the public 
participation process on the draft permit, the Administrator will no 
longer consider the submitted permit a proposed permit for purposes of 
its review under CAA section 505(b)(1) and its implementing 
regulations. In such instances, the permitting authority would need to 
make any necessary revisions to the permit and/or other documents in 
the permit record to address the comments, and submit the revised 
proposed permit to the EPA with the necessary documents-including the 
written RTC and statement of basis--in order to start the EPA's 45-day 
review period.\11\
---------------------------------------------------------------------------

    \11\ The EPA expects that the permitting authority would 
withdraw the initial permit submission if significant comments are 
received during the public participation process on a draft permit 
that has been submitted for concurrent review. If EPA later finds 
that a significant comment was received and the initial permit 
submission is not withdrawn, the permit submission will no longer be 
considered a proposed permit.
---------------------------------------------------------------------------

    The final regulatory text addresses concerns from many commenters 
and will still provide more complete permit records for the EPA's 45-
day review period, as well as during the 60-day petition period. For 
example, the regulatory text clarifies that the documents in 40 CFR 
70.8(a)(1), except the final permit, are required for the EPA's 45-day 
review. Although the final text adopted in 40 CFR 70.8(a)(1)(i) and 
(ii) differs from the regulatory text in the agency's proposal, it 
remains wholly consistent with the description of the EPA's intent for 
the regulation as set forth in the preamble to the proposal. See 81 FR 
at 57839.
    Permitting authorities and sources that wish to conduct concurrent 
review will still be able to do so; in situations where no significant 
comments are received on a draft title V permit this may serve as a 
streamlining measure. Where significant comments are received on a 
draft permit undergoing concurrent review or for a proposed permit 
being reviewed sequentially, the EPA will now have the benefit of both 
the RTC and statement of basis along with the other necessary documents 
it receives under 40 CFR 70.8(a)(1). Many permitting authorities were 
already sending a written RTC (where applicable) and a statement of 
basis along with the proposed permit for the EPA's review; this change 
provides more consistency and clarity for all stakeholders. For the 
first time, the agency is addressing the appropriate use of concurrent 
review explicitly in the regulations, increasing the transparency 
around the practice. Further, this is responsive to a recommendation 
from the CAAAC's Title V Task Force, which stated that ``it is 
essential that the permitting authority prepare a written response to 
comments'' and that it should be ``available to the public prior to the 
start of the 60-day period for petitioning the EPA Administrator to 
object to the permit.'' \12\ This revision to the part 70 rules, along 
with the other changes to the administrative record requirements 
discussed in this preamble, are within the EPA's inherent discretion to 
formulate procedures to discharge its obligations under CAA sections 
505(b)(1) and 505(b)(2).
---------------------------------------------------------------------------

    \12\ The majority of Task Force members also recommended that if 
a permitting authority received public comments (from anyone other 
than the permittee) during the public comment period, the RTC 
described in Recommendation 1 should be provided to the EPA for 
consideration during its 45-day review period. See Title V Task 
Force Final Report Recommendation 2 at 239.
---------------------------------------------------------------------------

    The EPA is not finalizing its proposal to revise 40 CFR 70.7(h)(7) 
to require that within 30 days of sending the proposed permit to the 
EPA, that permitting authorities provide notification that the proposed 
permit and the RTC are available to the public. Commenters expressed 
concern about the proposed requirement (at times referred to in 
comments as ``second notice'') as being burdensome and unnecessary. 
Further, many commenters stated that the EPA is in the best position to 
track the relevant dates for all parties, including potential 
petitioners. The agency agrees with these commenters and therefore, the 
EPA will, where practicable, post the agency's 45-day review period end 
date, as well as the end date for the 60-day window in which a petition 
may be submitted on a proposed permit, on the EPA Regional websites. 
Where dates are not listed, the EPA expects that websites will list a 
point of contact (or contacts) that can provide such information when 
requested.\13\ The EPA continues to encourage permitting authorities to 
provide notifications to the public or interested stakeholders 
regarding the timing of proposal of permits to the EPA, for example by 
making that information available either online or in the publication 
in which the public notice of the draft permit was given.
---------------------------------------------------------------------------

    \13\ The agency is working toward a national electronic 
permitting system that will have the capability to track relevant 
dates; however, this system will not be in operation before this 
final action is published. At this time, listing relevant dates or 
points of contact to obtain relevant dates on the EPA Regional 
websites is an effective means to convey the information to 
interested stakeholders.
---------------------------------------------------------------------------

D. Documents That May Be Considered in Reviewing Petitions

1. Summary of Proposal
    The EPA proposed regulatory text (40 CFR 70.13) that described the 
information considered when petitions are reviewed, which generally 
includes, but is not limited to, the petition itself, including 
attachments to the petition, and the administrative record for the 
proposed permit. The administrative record for a proposed permit 
includes the draft and proposed permits; any permit applications 
relating to the draft or proposed permits; the statement of basis for 
the draft and proposed permits; the permitting authority's written 
responses to comments; relevant

[[Page 6442]]

supporting materials made available to the public per 40 CFR 
70.7(h)(2); and all other materials available to the permitting 
authority that are relevant to the permitting decision and that were 
made available to the public. If a final permit was available during 
the petition review period, that may also be considered.
2. Summary of Comments
    Five comments were received regarding the proposed 40 CFR 70.13. 
Four of the commenters opposed the phrase ``generally includes, but is 
not limited to'' as they found it overly broad; believing that it could 
be interpreted to allow the EPA to consider unlimited information when 
reviewing a petition (particularly if it was not presented to the 
permitting authority first during the public comment period on a draft 
permit). One commenter suggested new language that would prohibit the 
consideration of responses or comments submitted by a permitting 
authority concerning the merits of a public petition when deciding 
whether to grant or deny that petition.
3. EPA Response
    The EPA understands the concerns voiced by commenters that the 
proposed language might be read to allow for unlimited information to 
be reviewed by the EPA when determining whether to grant or deny a 
petition. However, section 505(b)(2) of the CAA requires that a 
petition be based only on objections to the permit that were raised 
with reasonable specificity during the public comment period provided 
by the permitting agency (unless the petitioner demonstrates that it 
was impracticable to raise such objections within such period, or the 
objections arose after such period). Based on these four comments, the 
EPA has removed ``but not limited to'' from the proposed Sec.  70.13 so 
that the final text states ``generally includes the administrative 
record for the proposed permit and the petition, including attachments 
to the petition.'' As noted in Section III.D of this document, there 
are instances in which the EPA would appropriately refer to resources 
outside the petition and the administrative record for the proposed 
permit to more fully evaluate whether there is a demonstrated flaw in 
the permit, permit record, or permit process. This final regulatory 
text still allows for such reference, while hopefully alleviating some 
commenter concerns.
    The EPA also understands the concern raised by the commenter that 
permitting authority comments on a petition should not be considered. 
While at this time the agency is not adding new language to Sec.  
70.13, the EPA generally focuses on the information identified in the 
administrative record and has highlighted when permitting authorities 
have the opportunity to provide information and complete the permit 
record. As noted in the preamble to the proposed rule, permitting 
authorities have at least three opportunities to provide material for 
the permit record and ensure that it comports with the CAA: The draft, 
proposed, and final permit. The EPA was and is recommending practices 
for permitting authorities when preparing title V permits that can 
minimize the likelihood that a petition will be submitted on a title V 
permit. For example, they may fully address significant comments on 
draft permits and ensure the permit or permit record includes adequate 
rationale for the decisions made. See 81 FR 57841.

V. Implementation

    The implementation section of the proposal for this rulemaking 
solicited comment as to whether revisions to any approved state or 
local programs would be necessary if the proposed revisions to the part 
70 regulations were finalized. 81 FR 57842 (August 24, 2016). Five 
comments regarding implementation and potential state or local rule 
changes were received. Two commenters noted that no implementation 
timeline was included with the proposed rule. Another commenter stated 
that the proposal did not specify whether the proposed revisions would 
apply to permits that are undergoing public comment or EPA review at 
the time the rule is finalized. Finally, one state commenter indicated 
the rule as proposed would not require changes to its rules, while two 
commenters from state or local agencies indicated that state rule 
changes may be necessary to reflect the proposed requirements. One of 
the latter commenters pointed only to a ``change relating to the 
eligibility of minor modifications for petitions'' as an example of 
something they believed might require a state rule change. Yet the 
proposal regarding the availability of an opportunity to file a 
petition on a minor permit modification was not a proposed change in 
the underlying requirements but rather a proposed change to the 
regulatory text intended to clarify the operation of the existing 
regulations. See, e.g., 57 FR 32283 (July 21, 1992) (addressing the 
availability of EPA's 45-day review period and petition opportunities 
for minor permit modifications under the part 70 rules). Other than 
this point, these two commenters did not specify any particular aspects 
of the proposed revisions that might require changes to state rules.
    In light of the small number of comments received indicating any 
potential need for state or local rule changes, the EPA anticipates 
that the final rule provisions can generally be implemented without 
changes to state or local rules. However, the agency intends to handle 
any necessary state or local program revisions on a case-by-case basis 
under 40 CFR 70.4(i). The EPA expects any permitting authority that 
needs to revise its rules in order to implement any of the changes in 
this final rule to notify its respective Regional Office and initiate 
the program revision process per 40 CFR 70.4(i).
    The effective date of this rule is April 6, 2020, and the 
requirements in this rule will apply prospectively after that date, 
including for proposed permits and title V petitions. For example, the 
agency intends to begin applying the rules regarding petition format 
and content prospectively to petitions that are submitted to the EPA on 
or after the effective date for this rule. A significant portion of the 
revisions finalized in this action generally reflect current practice, 
and the agency is providing for 60 days between publication of this 
rule and the effective date in order to allow more time for 
stakeholders to prepare for the rule changes. Thus, the agency 
anticipates a transition with minimal disruption.

VI. Determination of Nationwide Scope and Effect

    Section 307(b)(1) of the CAA indicates the Federal Courts of Appeal 
in which petitions for review of final actions by the EPA must be 
filed. This section provides, in part, that petitions for review must 
be filed in the Court of Appeals for the District of Columbia Circuit 
if: (i) The agency action consists of ``nationally applicable 
regulations promulgated, or final action taken, by the Administrator 
under [the CAA]''; or (ii) such action is locally or regionally 
applicable, but ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.''
    As described in this section, this final action is nationally 
applicable for purposes of CAA section 307(b)(1). To the extent a court 
finds this final action to be locally or regionally applicable, for the 
reasons explained in this section, the EPA finds that this final action 
is based on a determination of nationwide scope or effect for purposes 
of CAA section 307(b)(1). This action addresses

[[Page 6443]]

revisions to the EPA's regulations in part 70 for operating permit 
programs, and these regulations apply to permitting programs across the 
country.
    For this reason, this final action is nationally applicable or, in 
the alternative, the EPA finds that this action is based on a 
determination of nationwide scope or effect for purposes of CAA section 
307(b)(1). Thus, pursuant to CAA section 307(b), any petitions for 
review of this final action must be filed in the Court of Appeals for 
the District of Columbia Circuit within 60 days from the date this 
final action is published in the Federal Register.

VII. Environmental Justice Considerations

    This final action revises the part 70 regulations to improve the 
title V petition submittal, review and response processes. The revision 
and guidance provided in the proposed rule should increase the 
transparency and clarity of the petition process for all stakeholders. 
First, the establishment of centralized petition submittal intake is 
expected to reduce or eliminate confusion over where to submit a 
petition. When using the preferred method of an electronic petition 
submittal through the agency's electronic submittal system, a 
petitioner should also have the immediate assurance that the petition 
and any attachments were received. However, alternative submittal 
methods are still available options for members of the public, 
including those that experience technical difficulties when trying to 
submit a petition or for those that do not have access to electronic 
submittal mechanisms. Second, the content and format requirements for 
petitions provide instruction and clarity on what must be included in a 
title V petition. The EPA expects this change will assist petitioners 
in providing all the critical information for their petitions in an 
effective manner, which may also increase the agency's efficiency in 
responding to petitions. Third, requiring permitting authorities to 
respond to public comments in a written document that (where 
applicable) is available during the 60-day opportunity to file a 
petition provides increased availability of information regarding 
permits for the public in general and petitioners specifically. This 
final action does not compel any specific changes to the requirements 
to provide opportunities for public participation in permitting nor 
does it finalize any particular permit action that may affect the fair 
treatment and meaningful involvement of all people. Based on these 
changes, the EPA disagrees with the commenter that stated the proposed 
changes would ``further erode rather than advance Environmental Justice 
principles by making it more difficult for those who live and work near 
major sources of air pollution to bring deficiencies in Title V permits 
to EPA's attention and to effectively demand the public health 
protections guaranteed by the [CAA].''
    When preparing for the proposed rule, the agency participated in 
community calls where the EPA presented a brief overview and 
announcement of the rulemaking effort. The EPA also held a webinar on 
September 13, 2016, where the agency described the title V petition 
process, the content of the proposed rule, and when and how to submit 
comments.

VIII. 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 Office of Management and Budget (OMB) for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2060-0243 for the title V part 70 program. The revisions 
to part 70 finalized in this action fall under ``Permitting Authority 
Activities'' already accounted for in the supporting statement for the 
Information Collection Request (ICR). For example, the activity of 
``permit issuance'' includes formalizing permits, placing copies of 
final permits on public websites, entering information into the EPA's 
permit website, and providing copies to sources. In addition, 
``response to public comments'' includes analyzing public comments and 
revising the draft permit accordingly when appropriate. The preparation 
of the RTC, where applicable, and its submittal to the EPA for its 45-
day review is an action that many permitting authorities already take 
and can be accounted for under the existing activities in the approved 
program ICR.

D. 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 
final rule will not impose any requirements directly on small entities. 
Entities potentially affected directly by this proposal include anyone 
that chooses to submit a title V petition on a proposed title V permit 
prepared by an EPA-approved state, local or tribal title V permitting 
authority. Other entities directly affected may include state, local, 
and tribal governments and none of these governments are small 
governments. Other types of small entities are not directly subject to 
the requirements of this action.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. Many permitting 
authorities were already preparing the RTC document, but through this 
rulemaking it is now a requirement. Associated costs are hard to 
quantify, but are anticipated to be minimal, as permitting authorities 
were already required to collect and consider public comments and it 
will be a new task for a small number of permitting authorities.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effect 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. This final 
action codifies practices that are already undertaken by many 
permitting authorities. Preparing a written response to comment 
document is an activity already conducted by many permitting 
authorities, and is a practice that was recommended by the CAAAC's 
Title V Task Force, which was composed of various stakeholders, 
including states. The availability of an RTC will reduce the likelihood 
of an EPA determination to grant a petition due to an inadequate 
rationale relied upon by a permitting authority.

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

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federal recognized tribal 
governments,

[[Page 6444]]

nor preempt tribal law. The Southern Ute Indian Tribe has an EPA-
approved operating permit program under 40 CFR part 70 and could be 
impacted. At the proposal stage, the EPA conducted outreach to the 
tribes through a call with the National Tribal Air Association. 
Further, the agency offered to consult with the Southern Ute Indian 
tribe. The EPA solicited comment from affected tribal communities on 
the implications of this rulemaking, although none were received.

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

    The EPA interprets Executive Order 13045 as applying only 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 final action is not subject 
to Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. 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.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health and environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). 
This rulemaking is primarily administrative and procedural in nature; 
it focuses on streamlining and clarifying the title V petition 
submittal, review, and response processes, as well as on ensuring that 
EPA timely receives information it needs to effectively review proposed 
permits and title V petitions. The regulatory revisions in this action, 
as well as the guidance that was provided in the preamble to the 
proposed rule, should increase the transparency and clarity of the 
petition process for all stakeholders. See 81 FR 57822 (August 24, 
2016). The general public as well as potential petitioners are expected 
to benefit by having better notification of permits and review 
deadlines (e.g., the EPA intends, where possible to post on the EPA 
Regional websites when a proposed permit is received and the 
corresponding 60-day deadline for submitting a petition) and by better 
access to permitting decision information (e.g., the permitting 
authority's written response to comments). Additional information is 
contained in Section V of this notice.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the 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).

M. Determination Under CAA Section 307(d)

    Section 307(d)(1)(V) of the CAA provides that the provisions of the 
CAA section 307(d) apply to ``such other actions as the administrator 
may determine.'' Pursuant to CAA section 307(d)(1)(V), the 
Administrator determines that this final action is subject to the 
provisions of CAA section 307(d).

IX. Statutory Authority

    The statutory authority for this final action is provided by 42 
U.S.C. 7401 et. seq.

List of Subjects in 40 CFR Part 70

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

    Dated: January 14, 2020.
Andrew R. Wheeler,
Administrator.

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

PART 70--STATE OPERATING PERMIT PROGRAMS

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

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


0
2. Section 70.4 is amended by revising paragraph (b)(3)(viii) to read 
as follows:


Sec.  70.4  State program submittals and transition.

* * * * *
    (b) * * *
    (3) * * *
    (viii) Make available to the public any permit application, 
statement required by Sec.  70.7(a)(5) (sometimes referred to as the 
'statement of basis'), compliance plan, permit, and monitoring and 
compliance certification report pursuant to section 503(e) of the Act, 
except for information entitled to confidential treatment pursuant to 
section 114(c) of the Act. The contents of a part 70 permit itself 
shall not be entitled to protection under section 114(c) of the Act.
* * * * *

0
3. Section 70.7 is amended by revising paragraphs (h)(2) and (5) and 
adding paragraph (h)(6) to read as follows:


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

* * * * *
    (h) * * *
    (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 website address) from whom interested persons may obtain 
additional information, including copies of the permit draft, the 
statement required by Sec.  70.7(a)(5) (sometimes referred to as the 
`statement of basis') for the draft permit, 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);
* * * * *
    (5) The permitting authority shall keep a record of the commenters 
and of the issues raised during the public participation process, as 
well as records of the written comments submitted during that process, 
so that the Administrator may fulfill his obligation under section 
505(b)(2) of the Act to determine whether a citizen petition may be 
granted, and such records shall be available to the public.
    (6) The permitting authority must respond in writing to all 
significant comments raised during the public participation process, 
including any such written comments submitted during the public comment 
period and

[[Page 6445]]

any such comments raised during any public hearing on the permit.

0
4. Section 70.8 is amended by revising paragraphs (a)(1), (c)(1), and 
(d) to read as follows:


Sec.  70.8  Permit review by EPA and affected States.

    (a) Transmission of information to the Administrator. (1) The 
permit program must require that the permitting authority provide to 
the Administrator a copy of each permit application (including any 
application for significant or minor permit modification), the 
statement required by Sec.  70.7(a)(5) (sometimes referred to as the 
`statement of basis'), each proposed permit, each final permit, and, if 
significant comment is received during the public participation 
process, the written response to comments (which must include a written 
response to all significant comments raised during the public 
participation process on the draft permit and recorded under Sec.  
70.7(h)(5) of this part), and an explanation of how those public 
comments and the permitting authority's responses are available to the 
public. The applicant may be required by the permitting authority to 
provide a copy of the permit application (including the compliance 
plan) directly to the Administrator. Upon agreement with the 
Administrator, the permitting authority may submit to the Administrator 
a permit application summary form and any relevant portion of the 
permit application and compliance plan, in place of the complete permit 
application and compliance plan. To the extent practicable, the 
preceding information shall be provided in computer-readable format 
compatible with EPA's national database management system.
    (i) Where the public participation process for a draft permit 
concludes before the proposed permit is submitted to the Administrator, 
the statement required by Sec.  70.7(a)(5) (sometimes referred to as 
the `statement of basis') and the written response to comments, if 
significant comment was received during the public participation 
process, must be submitted with the proposed permit along with other 
supporting materials required in Sec.  70.8(a)(1) of this part, 
excepting the final permit. The Administrator's 45-day review period 
for this proposed permit will not begin until such materials have been 
received by the EPA.
    (ii) In instances where the Administrator has received a proposed 
permit from a permitting authority before the public participation 
process on the draft permit has been completed, the statement required 
by Sec.  70.7(a)(5) (sometimes referred to as the `statement of basis') 
must be submitted with the proposed permit along with other supporting 
materials, required in Sec.  70.8(a)(1) of this part, excepting the 
final permit and the written response to comments. If the permitting 
authority receives significant comment on the draft permit during the 
public participation process, but after the submission of the proposed 
permit to the Administrator, the Administrator will no longer consider 
the submitted proposed permit as a permit proposed to be issued under 
section 505 of the Act. In such instances, the permitting authority 
must make any revisions to the permit and permit record necessary to 
address such public comments, including preparation of a written 
response to comments (which must include a written response to all 
significant comments raised during the public participation process on 
the draft permit and recorded under Sec.  70.7(h)(5) of this part), and 
must submit the proposed permit and the supporting material required 
under Sec.  70.8(a)(1)(i) of this part, excepting the final permit, to 
the Administrator after the public comment period has closed. This 
later submitted permit will then be considered as a permit proposed to 
be issued under section 505 of the Act, and the Administrator's review 
period for the proposed permit will not begin until all required 
materials have been received by the EPA.
* * * * *
    (c) * * *
    (1) The Administrator will object to the issuance of any proposed 
permit determined by the Administrator not to be in compliance with 
applicable requirements or requirements under this part. No permit for 
which an application must be transmitted to the Administrator under 
paragraph (a) of this section shall be issued if the Administrator 
objects to its issuance in writing within 45 days of receipt of the 
proposed permit and all necessary supporting information required under 
Sec.  7 0.8(a)(1), including under Sec.  70.8(a)(1)(i) or (ii) where 
applicable.
* * * * *
    (d) Public petitions to the Administrator. The program shall 
provide that, if the Administrator does not object in writing under 
paragraph (c) of this section, any person may petition the 
Administrator within 60 days after the expiration of the 
Administrator's 45-day review period to make such objection. The 
petitioner shall provide a copy of such petition to the permitting 
authority and the applicant. Any such petition shall be based only on 
objections to the permit that were raised with reasonable specificity 
during the public comment period provided for in Sec.  70.7(h) of this 
part, unless the petitioner demonstrates that it was impracticable to 
raise such objections within such period, or unless the grounds for 
such objection arose after such period. If the Administrator objects to 
the permit as a result of a petition filed under this paragraph, the 
permitting authority shall not issue the permit until EPA's objection 
has been resolved, except that a petition for review does not stay the 
effectiveness of a permit or its requirements if the permit was issued 
after the end of the 45-day review period and prior to an EPA 
objection. If the permitting authority has issued a permit prior to 
receipt of an EPA objection under this paragraph, the Administrator 
will modify, terminate, or revoke such permit, and shall do so 
consistent with the procedures in Sec.  70.7(g)(4) or (g)(5)(i) and 
(ii) of this part except in unusual circumstances, and the permitting 
authority may thereafter issue only a revised permit that satisfies 
EPA's objection. In any case, the source will not be in violation of 
the requirement to have submitted a timely and complete application.
* * * * *

0
5. Add Sec.  70.12 to read as follows:


Sec.  70.12  Public petition requirements.

    (a) Standard petition requirements. Each public petition sent to 
the Administrator under Sec.  70.8(d) of this part must include the 
following elements in the following order:
    (1) Identification of the proposed permit on which the petition is 
based. The petition must provide the permit number, version number, or 
any other information by which the permit can be readily identified. 
The petition must specify whether the permit action is an initial 
permit, a permit renewal, or a permit modification/revision, including 
minor modifications/revisions.
    (2) Identification of petition claims. Any issue raised in the 
petition as grounds for an objection must be based on a claim that the 
permit, permit record, or permit process is not in compliance with 
applicable requirements or requirements under this part. Any arguments 
or claims the petitioner wishes the EPA to consider in support of each 
issue raised must be contained within the body of the petition, or if 
reference is made to an attached document, the body of the petition 
must provide a specific citation to the referenced information, along

[[Page 6446]]

with a description of how that information supports the claim. In 
determining whether to object, the Administrator will not consider 
arguments, assertions, claims, or other information incorporated into 
the petition by reference. For each claim raised, the petition must 
identify the following:
    (i) The specific grounds for an objection, citing to a specific 
permit term or condition where applicable.
    (ii) The applicable requirement as defined in Sec.  70.2, or 
requirement under this part, that is not met.
    (iii) An explanation of how the term or condition in the permit, or 
relevant portion of the permit record or permit process, is not 
adequate to comply with the corresponding applicable requirement or 
requirement under this part.
    (iv) If the petition claims that the permitting authority did not 
provide for a public participation procedure required under Sec.  
70.7(h), the petition must identify specifically the required public 
participation procedure that was not provided.
    (v) Identification of where the issue was raised with reasonable 
specificity during the public comment period provided for in Sec.  
70.7(h), citing to any relevant page numbers in the public comment 
submitted to the permitting authority and attaching this public comment 
to the petition. If the grounds for the objection were not raised with 
reasonable specificity during the public comment period, the petitioner 
must demonstrate that such grounds arose after that period, or that it 
was impracticable to raise such objections within that period, as 
required under Sec.  70.8(d) of this part.
    (vi) Unless the grounds for the objection arose after the public 
comment period or it was impracticable to raise the objection within 
that period such that the exception under Sec.  70.8(d) applies, the 
petition must identify where the permitting authority responded to the 
public comment, including page number(s) in the publicly available 
written response to comment, and explain how the permitting authority's 
response to the comment is inadequate to address the issue raised in 
the public comment. If the response to comment document does not 
address the public comment at all, the petition must state that.
    (b) Timeliness. In order for the EPA to be able to determine 
whether a petition was timely filed, the petition must have or be 
accompanied by one of the following: A date or time stamp of receipt 
through EPA's designated electronic submission system as described in 
Sec.  70.14; a date or time stamp on an electronic submission through 
EPA's designated email address as described in Sec.  70.14; or a 
postmark date generated for a paper copy mailed to EPA's designated 
physical address.

0
6. Add Sec.  70.13 to read as follows:


Sec.  70.13  Documents that may be considered in reviewing petitions.

    The information that the Administrator considers in making a 
determination whether to grant or deny a petition submitted under Sec.  
70.8(d) of this part on a proposed permit generally includes the 
petition itself, including attachments to the petition, and the 
administrative record for the proposed permit. For purposes of this 
paragraph, the administrative record for a particular proposed permit 
includes the draft and proposed permits; any permit applications that 
relate to the draft or proposed permits; the statement required by 
Sec.  70.7(a)(5) (sometimes referred to as the `statement of basis'); 
any comments the permitting authority received during the public 
participation process on the draft permit; the permitting authority's 
written responses to comments, including responses to all significant 
comments raised during the public participation process on the draft 
permit; and all materials available to the permitting authority that 
are relevant to the permitting decision and that the permitting 
authority made available to the public according to Sec.  70.7(h)(2) of 
this part. If a final permit is available during the agency's review of 
a petition on a proposed permit, that document may also be considered 
as part of making a determination whether to grant or deny the 
petition.

0
7. Add Sec.  70.14 to read as follows:


Sec.  70.14  Submission of petitions.

    Any petition to the Administrator must be submitted through the 
Operating Permits Group in the Air Quality Policy Division in the 
Office of Air Quality Planning and Standards, using one of the three 
following methods, as described at the EPA Title V Petitions website: 
An electronic submission through the EPA's designated submission system 
identified on that website (the agency's preferred method); an 
electronic submission through the EPA's designated email address listed 
on that website; or a paper submission to the EPA's designated physical 
address listed on that website. Any necessary attachments must be 
submitted together with the petition, using the same method as for the 
petition. Once a petition has been successfully submitted using one of 
these three methods, the petitioner should not submit additional copies 
of the petition using another method. The Administrator is not 
obligated to consider petitions submitted to the agency using any 
method other than the three identified in this section.

[FR Doc. 2020-01099 Filed 2-4-20; 8:45 am]
 BILLING CODE 6560-50-P