42 U.S.C. § 7661a : US Code - Section 7661A: Permit programs

Search 42 U.S.C. § 7661a : US Code - Section 7661A: Permit programs

(a) Violations
After the effective date of any permit program approved or
promulgated under this subchapter, it shall be unlawful for any
person to violate any requirement of a permit issued under this
subchapter, or to operate an affected source (as provided in
subchapter IV-A of this chapter), a major source, any other source
(including an area source) subject to standards or regulations
under section 7411 or 7412 of this title, any other source required
to have a permit under parts (!1) C or D of subchapter I of this
chapter, or any other stationary source in a category designated
(in whole or in part) by regulations promulgated by the
Administrator (after notice and public comment) which shall include
a finding setting forth the basis for such designation, except in
compliance with a permit issued by a permitting authority under
this subchapter. (Nothing in this subsection shall be construed to
alter the applicable requirements of this chapter that a permit be
obtained before construction or modification.) The Administrator
may, in the Administrator's discretion and consistent with the
applicable provisions of this chapter, promulgate regulations to
exempt one or more source categories (in whole or in part) from the
requirements of this subsection if the Administrator finds that
compliance with such requirements is impracticable, infeasible, or
unnecessarily burdensome on such categories, except that the
Administrator may not exempt any major source from such
requirements.
(b) Regulations
The Administrator shall promulgate within 12 months after
November 15, 1990, regulations establishing the minimum elements of
a permit program to be administered by any air pollution control
agency. These elements shall include each of the following:
(1) Requirements for permit applications, including a standard
application form and criteria for determining in a timely fashion
the completeness of applications.
(2) Monitoring and reporting requirements.
(3)(A) A requirement under State or local law or interstate
compact that the owner or operator of all sources subject to the
requirement to obtain a permit under this subchapter pay an
annual fee, or the equivalent over some other period, sufficient
to cover all reasonable (direct and indirect) costs required to
develop and administer the permit program requirements of this
subchapter, including section 7661f of this title, including the
reasonable costs of -
(i) reviewing and acting upon any application for such a
permit,
(ii) if the owner or operator receives a permit for such
source, whether before or after November 15, 1990, implementing
and enforcing the terms and conditions of any such permit (not
including any court costs or other costs associated with any
enforcement action),
(iii) emissions and ambient monitoring,
(iv) preparing generally applicable regulations, or guidance,
(v) modeling, analyses, and demonstrations, and
(vi) preparing inventories and tracking emissions.
(B) The total amount of fees collected by the permitting
authority shall conform to the following requirements:
(i) The Administrator shall not approve a program as meeting
the requirements of this paragraph unless the State
demonstrates that, except as otherwise provided in
subparagraphs (!2) (ii) through (v) of this subparagraph, the
program will result in the collection, in the aggregate, from
all sources subject to subparagraph (A), of an amount not less
than $25 per ton of each regulated pollutant, or such other
amount as the Administrator may determine adequately reflects
the reasonable costs of the permit program.
(ii) As used in this subparagraph, the term "regulated
pollutant" shall mean (I) a volatile organic compound; (II)
each pollutant regulated under section 7411 or 7412 of this
title; and (III) each pollutant for which a national primary
ambient air quality standard has been promulgated (except that
carbon monoxide shall be excluded from this reference).
(iii) In determining the amount under clause (i), the
permitting authority is not required to include any amount of
regulated pollutant emitted by any source in excess of 4,000
tons per year of that regulated pollutant.
(iv) The requirements of clause (i) shall not apply if the
permitting authority demonstrates that collecting an amount
less than the amount specified under clause (i) will meet the
requirements of subparagraph (A).
(v) The fee calculated under clause (i) shall be increased
(consistent with the need to cover the reasonable costs
authorized by subparagraph (A)) in each year beginning after
1990, by the percentage, if any, by which the Consumer Price
Index for the most recent calendar year ending before the
beginning of such year exceeds the Consumer Price Index for the
calendar year 1989. For purposes of this clause -
(I) the Consumer Price Index for any calendar year is the
average of the Consumer Price Index for all-urban consumers
published by the Department of Labor, as of the close of the
12-month period ending on August 31 of each calendar year,
and
(II) the revision of the Consumer Price Index which is most
consistent with the Consumer Price Index for calendar year
1989 shall be used.
(C)(i) If the Administrator determines, under subsection (d) of
this section, that the fee provisions of the operating permit
program do not meet the requirements of this paragraph, or if the
Administrator makes a determination, under subsection (i) of this
section, that the permitting authority is not adequately
administering or enforcing an approved fee program, the
Administrator may, in addition to taking any other action
authorized under this subchapter, collect reasonable fees from
the sources identified under subparagraph (A). Such fees shall be
designed solely to cover the Administrator's costs of
administering the provisions of the permit program promulgated by
the Administrator.
(ii) Any source that fails to pay fees lawfully imposed by the
Administrator under this subparagraph shall pay a penalty of 50
percent of the fee amount, plus interest on the fee amount
computed in accordance with section 6621(a)(2) of title 26
(relating to computation of interest on underpayment of Federal
taxes).
(iii) Any fees, penalties, and interest collected under this
subparagraph shall be deposited in a special fund in the United
States Treasury for licensing and other services, which
thereafter shall be available for appropriation, to remain
available until expended, subject to appropriation, to carry out
the Agency's activities for which the fees were collected. Any
fee required to be collected by a State, local, or interstate
agency under this subsection shall be utilized solely to cover
all reasonable (direct and indirect) costs required to support
the permit program as set forth in subparagraph (A).
(4) Requirements for adequate personnel and funding to
administer the program.
(5) A requirement that the permitting authority have adequate
authority to:
(A) issue permits and assure compliance by all sources
required to have a permit under this subchapter with each
applicable standard, regulation or requirement under this
chapter;
(B) issue permits for a fixed term, not to exceed 5 years;
(C) assure that upon issuance or renewal permits incorporate
emission limitations and other requirements in an applicable
implementation plan;
(D) terminate, modify, or revoke and reissue permits for
cause;
(E) enforce permits, permit fee requirements, and the
requirement to obtain a permit, including authority to recover
civil penalties in a maximum amount of not less than $10,000
per day for each violation, and provide appropriate criminal
penalties; and
(F) assure that no permit will be issued if the Administrator
objects to its issuance in a timely manner under this
subchapter.
(6) Adequate, streamlined, and reasonable procedures for
expeditiously determining when applications are complete, for
processing such applications, for public notice, including
offering an opportunity for public comment and a hearing, and for
expeditious review of permit actions, including applications,
renewals, or revisions, and including an opportunity for judicial
review in State court of the final permit action by the
applicant, any person who participated in the public comment
process, and any other person who could obtain judicial review of
that action under applicable law.
(7) To ensure against unreasonable delay by the permitting
authority, adequate authority and procedures to provide that a
failure of such permitting authority to act on a permit
application or permit renewal application (in accordance with the
time periods specified in section 7661b of this title or, as
appropriate, subchapter IV-A of this chapter) shall be treated as
a final permit action solely for purposes of obtaining judicial
review in State court of an action brought by any person referred
to in paragraph (6) to require that action be taken by the
permitting authority on such application without additional
delay.
(8) Authority, and reasonable procedures consistent with the
need for expeditious action by the permitting authority on permit
applications and related matters, to make available to the public
any permit application, compliance plan, permit, and monitoring
or compliance report under section 7661b(e) of this title,
subject to the provisions of section 7414(c) of this title.
(9) A requirement that the permitting authority, in the case of
permits with a term of 3 or more years for major sources, shall
require revisions to the permit to incorporate applicable
standards and regulations promulgated under this chapter after
the issuance of such permit. Such revisions shall occur as
expeditiously as practicable and consistent with the procedures
established under paragraph (6) but not later than 18 months
after the promulgation of such standards and regulations. No such
revision shall be required if the effective date of the standards
or regulations is a date after the expiration of the permit term.
Such permit revision shall be treated as a permit renewal if it
complies with the requirements of this subchapter regarding
renewals.
(10) Provisions to allow changes within a permitted facility
(or one operating pursuant to section 7661b(d) of this title)
without requiring a permit revision, if the changes are not
modifications under any provision of subchapter I of this chapter
and the changes do not exceed the emissions allowable under the
permit (whether expressed therein as a rate of emissions or in
terms of total emissions: (!3) Provided, That the facility
provides the Administrator and the permitting authority with
written notification in advance of the proposed changes which
shall be a minimum of 7 days, unless the permitting authority
provides in its regulations a different timeframe for
emergencies.
(c) Single permit
A single permit may be issued for a facility with multiple
sources.
(d) Submission and approval
(1) Not later than 3 years after November 15, 1990, the Governor
of each State shall develop and submit to the Administrator a
permit program under State or local law or under an interstate
compact meeting the requirements of this subchapter. In addition,
the Governor shall submit a legal opinion from the attorney general
(or the attorney for those State air pollution control agencies
that have independent legal counsel), or from the chief legal
officer of an interstate agency, that the laws of the State,
locality, or the interstate compact provide adequate authority to
carry out the program. Not later than 1 year after receiving a
program, and after notice and opportunity for public comment, the
Administrator shall approve or disapprove such program, in whole or
in part. The Administrator may approve a program to the extent that
the program meets the requirements of this chapter, including the
regulations issued under subsection (b) of this section. If the
program is disapproved, in whole or in part, the Administrator
shall notify the Governor of any revisions or modifications
necessary to obtain approval. The Governor shall revise and
resubmit the program for review under this section within 180 days
after receiving notification.
(2)(A) If the Governor does not submit a program as required
under paragraph (1) or if the Administrator disapproves a program
submitted by the Governor under paragraph (1), in whole or in part,
the Administrator may, prior to the expiration of the 18-month
period referred to in subparagraph (B), in the Administrator's
discretion, apply any of the sanctions specified in section 7509(b)
of this title.
(B) If the Governor does not submit a program as required under
paragraph (1), or if the Administrator disapproves any such program
submitted by the Governor under paragraph (1), in whole or in part,
18 months after the date required for such submittal or the date of
such disapproval, as the case may be, the Administrator shall apply
sanctions under section 7509(b) of this title in the same manner
and subject to the same deadlines and other conditions as are
applicable in the case of a determination, disapproval, or finding
under section 7509(a) of this title.
(C) The sanctions under section 7509(b)(2) of this title shall
not apply pursuant to this paragraph in any area unless the failure
to submit or the disapproval referred to in subparagraph (A) or (B)
relates to an air pollutant for which such area has been designated
a nonattainment area (as defined in part D of subchapter I of this
chapter).
(3) If a program meeting the requirements of this subchapter has
not been approved in whole for any State, the Administrator shall,
2 years after the date required for submission of such a program
under paragraph (1), promulgate, administer, and enforce a program
under this subchapter for that State.
(e) Suspension
The Administrator shall suspend the issuance of permits promptly
upon publication of notice of approval of a permit program under
this section, but may, in such notice, retain jurisdiction over
permits that have been federally issued, but for which the
administrative or judicial review process is not complete. The
Administrator shall continue to administer and enforce federally
issued permits under this subchapter until they are replaced by a
permit issued by a permitting program. Nothing in this subsection
should be construed to limit the Administrator's ability to enforce
permits issued by a State.
(f) Prohibition
No partial permit program shall be approved unless, at a minimum,
it applies, and ensures compliance with, this subchapter and each
of the following:
(1) All requirements established under subchapter IV-A of this
chapter applicable to "affected sources".
(2) All requirements established under section 7412 of this
title applicable to "major sources", "area sources," and "new
sources".
(3) All requirements of subchapter I of this chapter (other
than section 7412 of this title) applicable to sources required
to have a permit under this subchapter.
Approval of a partial program shall not relieve the State of its
obligation to submit a complete program, nor from the application
of any sanctions under this chapter for failure to submit an
approvable permit program.
(g) Interim approval
If a program (including a partial permit program) submitted under
this subchapter substantially meets the requirements of this
subchapter, but is not fully approvable, the Administrator may by
rule grant the program interim approval. In the notice of final
rulemaking, the Administrator shall specify the changes that must
be made before the program can receive full approval. An interim
approval under this subsection shall expire on a date set by the
Administrator not later than 2 years after such approval, and may
not be renewed. For the period of any such interim approval, the
provisions of subsection (d)(2) of this section, and the obligation
of the Administrator to promulgate a program under this subchapter
for the State pursuant to subsection (d)(3) of this section, shall
be suspended. Such provisions and such obligation of the
Administrator shall apply after the expiration of such interim
approval.
(h) Effective date
The effective date of a permit program, or partial or interim
program, approved under this subchapter, shall be the effective
date of approval by the Administrator. The effective date of a
permit program, or partial permit program, promulgated by the
Administrator shall be the date of promulgation.
(i) Administration and enforcement
(1) Whenever the Administrator makes a determination that a
permitting authority is not adequately administering and enforcing
a program, or portion thereof, in accordance with the requirements
of this subchapter, the Administrator shall provide notice to the
State and may, prior to the expiration of the 18-month period
referred to in paragraph (2), in the Administrator's discretion,
apply any of the sanctions specified in section 7509(b) of this
title.
(2) Whenever the Administrator makes a determination that a
permitting authority is not adequately administering and enforcing
a program, or portion thereof, in accordance with the requirements
of this subchapter, 18 months after the date of the notice under
paragraph (1), the Administrator shall apply the sanctions under
section 7509(b) of this title in the same manner and subject to the
same deadlines and other conditions as are applicable in the case
of a determination, disapproval, or finding under section 7509(a)
of this title.
(3) The sanctions under section 7509(b)(2) of this title shall
not apply pursuant to this subsection in any area unless the
failure to adequately enforce and administer the program relates to
an air pollutant for which such area has been designated a
nonattainment area.
(4) Whenever the Administrator has made a finding under paragraph
(1) with respect to any State, unless the State has corrected such
deficiency within 18 months after the date of such finding, the
Administrator shall, 2 years after the date of such finding,
promulgate, administer, and enforce a program under this subchapter
for that State. Nothing in this paragraph shall be construed to
affect the validity of a program which has been approved under this
subchapter or the authority of any permitting authority acting
under such program until such time as such program is promulgated
by the Administrator under this paragraph.