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SSRRRRRRR?RRRR S^?^^]]]]]]]?À]À]ဦ]񀦀]]] J  #]\  PC:HP#X01Í Í<X01Í Í  zN U  PART 124--PROCEDURES FOR DECISIONMAKING *   yOX  Subpart A--General Program Requirements Sec. 124.1 Purpose and scope. 124.2 Definitions. 124.3 Application for a permit. 124.4 Consolidation of permit processing. 124.5 Modification, revocation and reissuance, or termination of permits. 124.6 Draft permits. 124.7 Statement of basis. 124.8 Fact sheet. 124.9 Administrative record for draft permits when EPA is the permitting authority. 124.10 Public notice of permit actions and public comment period. 124.11 Public comments and requests for public hearings. 124.12 Public hearings. 124.13 Obligation to raise issues and provide information during the public comment period. 124.14 Reopening of the public comment period. 124.15 Issuance and effective date of permit. 124.16 Stays of contested permit conditions. 124.17 Response to comments. 124.18 Administrative record for final permit when EPA is the permitting authority. 124.19 Appeal of RCRA, UIC and PSD permits. 124.20 Computation of time. 124.21 Effective date of part 124.  yO  Subpart B--Specific Procedures Applicable to RCRA Permits [Reserved]  yOp  Subpart C--Specific Procedures Applicable to PSD Permits 124.41 Definitions applicable to PSD permits. 124.42 Additional procedures for PSD permits affecting Class I areas.  yOX  Subpart D--Specific Procedures Applicable to NPDES Permits 124.51 Purpose and scope. 124.52 Permits required on a case-by-case basis. 124.53 State certification. 124.54 Special provisions for State certification and concurrence on applications for section 301(h) variances. 124.55 Effect of State certification. 124.56 Fact sheets. 124.57 Public notice. 124.58 Special procedures for EPA-issued general permits for point sources other than separate storm sewers. 124.59 Conditions requested by the Corps of Engineers and other government agencies. 124.60 Issuance and effective date and stays of NPDES permits. 124.61 Final environmental impact statement. 124.62 Decision on variances. 124.63 Procedures for variances when EPA is the permitting authority. 124.64 Appeals of variances. 124.66 Special procedures for decisions on thermal variances under section 316(a).'0*((Ԍ yO ԙ Subpart E--Evidentiary Hearing for EPA-Issued NPDES Permits and EPA-Terminated RCRA Permits 124.71 Applicability. 124.72 Definitions. 124.73 Filing and submission of documents. 124.74 Requests for evidentiary hearing. 124.75 Decision on request for a hearing. 124.76 Obligation to submit evidence and raise issues before a final permit is issued. 124.77 Notice of hearing.  {O 124.78 Ex parte communications. 124.79 Additional parties and issues. 124.80 Filing and service. 124.81 Assignment of Administrative Law Judge. 124.82 Consolidation and severance. 124.83 Prehearing conferences. 124.84 Summary determination. 124.85 Hearing procedure. 124.86 Motions. 124.87 Record of hearings. 124.88 Proposed findings of fact and conclusions; brief. 124.89 Decisions. 124.90 Interlocutory appeal. 124.91 Appeal to the Administrator.  yO  Subpart F--Non-Adversary Panel Procedures 124.111 Applicability. 124.112 Relation to other subparts. 124.113 Public notice of draft permits and public comment period. 124.114 Request for hearing. 124.115 Effect of denial of or absence of request for hearing. 124.116 Notice of hearing. 124.117 Request to participate in hearing. 124.118 Submission of written comments on draft permit. 124.119 Presiding Officer. 124.120 Panel hearing. 124.121 Opportunity for cross-examination. 124.122 Record for final permit. 124.123 Filing of brief, proposed findings of fact and conclusions of law and proposed modified permit. 124.124 Recommended decision. 124.125 Appeal from or review of recommended decision. 124.126 Final decision. 124.127 Final decision if there is no review. 124.128 Delegation of authority; time limitations.  yO*# Appendix A to Part 124--Guide to Decisionmaking Under Part 124  {O$  Authority: Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; Safe Drinking Water Act, 42  {O% U.S.C. 300(f) et seq.; Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air Act, 42 U.S.C. 1857 et seq.  {O'  Source: 48 FR 14264, Apr. 1, 1983, unless otherwise noted.'0*((Ԍ yO ԙ  Subpart A--General Program Requirements *   yO  124.1 Purpose and scope. (a) This part contains EPA procedures for issuing, modifying, revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES ``permits'' (including ``sludge-only'' permits issued pursuant to 122.1(b)(3)), other than RCRA and UIC ``emergency permits'' (see 270.61 and 144.34) and RCRA ``permits by rule'' (270.60). The latter kinds of permits are governed by part 270. RCRA interim status and UIC authorization by rule are not ``permits'' and are covered by specific provisions in parts 144, subpart C, and 270. This part also does not apply to permits issued, modified, revoked and reissued or terminated by the Corps of Engineers. Those procedures are specified in 33 CFR parts 320 - 327. The procedures of this part also apply to denial of a permit for the active life of a RCRA hazardous waste management facility or unit under 270.29. (b) Part 124 is organized into six subparts. Subpart A contains general procedural requirements applicable to all permit programs covered by these regulations. Subparts B through F supplement these general provisions with requirements that apply to only one or more of the programs. Subpart A describes the steps EPA will follow in receiving permit applications, preparing draft permits, issuing public notice, inviting public comment and holding public hearings on draft permits. Subpart A also covers assembling an administrative record, responding to comments, issuing a final permit decision, and allowing for administrative appeal of the final permit decision. Subpart B is reserved for specific procedural requirements for RCRA permits. There are none of these at present but they may be added in the future. Subpart C contains definitions and specific procedural requirements for PSD permits. Subpart D applies to NPDES permits until an evidentiary hearing begins, when subpart E procedures take over for EPA-issued NPDES permits and EPA-terminated RCRA permits. Subpart F, which is based on the ``initial licensing'' provisions of the Administrative Procedure Act (APA), can be used instead of subparts A through E in appropriate cases. (c) Part 124 offers an opportunity for three kinds of hearings: A public hearing under subpart A, an evidentiary hearing under subpart E, and a panel hearing under subpart F. This chart describes when these hearings are available  yOP for each of the five permit programs.#dZ6X@K @# 3'3'Standard'3'3StandardQMPS810.PRSx  aڰ P0*((  g/  Hearings Available Under This Part  Subpart  Programs (A) (E) (F)  Public hearing Evidentiary hearing Panel hearing  RCRA................ On draft permit, at (1) Permit termination (1) At RA's discretion in Director's discretion or (RCRA section 3008). lieu of public hearing on request (124.12). (124.12 and 124.111(a)(3)). (2) With NPDES evidentiary (2) When consolidated with hearing (124.74(b)(2)). NPDES draft permit processed under Subpart F (124.111(a)(1)(i)). UIC................. On draft permit, at With NPDES evidentiary (1) At RA's discretion in Director's discretion or hearing (124.74(b)(2)). lieu of public hearing on request (124.12). (124.12 and 124.111(a)(3)). (2) When consolidated with NPDES draft permit processed under Subpart F (124.111(a)(1)(i)). PSD................. On draft permit, at Not available (124.71(c)). When consolidated with NPDES Director's discretion or draft permit processed on request (124.12). under Subpart F if RA determines that CAA one year deadline will not be violated. NPDES (other than On draft permit, at (1) On request to challenge (1) At RA's discretion when general permit). Director's discretion or any permit condition or first decision on permit or on request (124.12). variance (124.74). variance request (124.111). (2) At RA's discretion for (2) At RA's discretion when any 301(h) request request for evidentiary (124.64(b)). hearing is granted under 124.75(a)(2) (124.74(c)(8) and 124.111(a)(2)). x (3) At RA's discretion for any 301(h) request (124.64(b)). NPDES (general On draft permit, at Not available (124.71(a)). At RA's discretion in lieu permit). Director's discretion or of public hearing on request (124.12). (124.111(a)(3)). 404................. On draft permit or on Not available (124.71)..... Not available (124.111). application when no draft permit, at Director's discretion or on request (124.12).  '3'3StandardQMPS810.PRSx  3'3'StandardQMPS810.PRSx  M۰  x # ]\  PC:HP# (d) This part is designed to allow permits for a given facility under two or more of the listed programs to be processed separately or together at the choice of the Regional Administrator. This allows EPA to combine the processing of permits only when appropriate, and not necessarily in all cases. The Regional Administrator may consolidate permit processing when the permit applications are submitted, when draft permits are prepared, or when final permit decisions are issued. This part also allows consolidated permits to be subject to a single public hearing under 124.12, a single evidentiary hearing under 124.75, or a single non-adversary panel hearing under 124.120. Permit applicants may recommend whether or not their applications should be consolidated in any given case. (e) Certain procedural requirements set forth in part 124 must be adopted by States in order to gain EPA approval to operate RCRA, UIC, NPDES, and 404 permit programs.These requirements are listed in 123.25 (NPDES), 145.11 (UIC), 233,26 (404), and 271.14 (RCRA) and signaled by the following words at the end of the appropriate  {O part 124 section or paragraph heading: (applicable to State programs see 123.25 (NPDES), 145.11 (UIC), 233.26  {Ob (404), and 271.14 (RCRA)). Part 124 does not apply to PSD permits issued by an approved State. (f) To coordinate decisionmaking when different permits will be issued by EPA and approved State programs, this part allows applications to be jointly processed, joint comment periods and hearings to be held, and final permits to be issued on a cooperative basis whenever EPA and a State agree to take such steps in general or in individual cases. These joint processing agreements may be provided in the Memorandum of Agreement developed under 123.24 (NPDES), 145.24 (UIC), 233.24 (404), and 271.8 (RCRA). [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 54 FR 18785, May 2, 1989]  yO4  124.2 Definitions. (a) In addition to the definitions given in 122.2 and 123.2 (NPDES), 501.2 (sludge management), 144.3 and 145.2 (UIC), 233.3 (404), and 270.2 and 271.2 (RCRA), the definitions below apply to this part, except for PSD permits which are governed by the definitions in 124.41. Terms not defined in this section have the meaning given by the appropriate Act.  {O  Administrator means the Administrator of the U.S. Environmental Protection Agency, or an authorized representative.  {Ov  Applicable standards and limitations means all State, interstate, and federal standards and limitations to which a ``discharge,'' a ``sludge use or disposal practice'' or a related activity is subject under the CWA, including ``standards for sewage sludge use or disposal,'' ``effluent limitations,'' water quality standards, standards of performance, toxic effluent standards or prohibitions, ``best management practices,'' and pretreatment standards under sections 301, 302, 303, 304, 306, 307, 308, 403, and 405 of CWA.  {O`  Application means the EPA standard national forms for applying for a permit, including any additions, revisions or modifications to the forms; or forms approved by EPA for use in ``approved States,'' including any approved modifications or revisions. For RCRA, application also includes the information required by the Director under 270.14 through 270.29 [contents of Part B of the RCRA application].  {O  Appropriate Act and regulations means the Clean Water Act (CWA); the Solid Waste Disposal Act, as amended by the Resource Conservation Recovery Act (RCRA); or Safe Drinking Water Act (SDWA), whichever is applicable; and applicable regulations promulgated under those statutes. In the case of an ``approved State program'' appropriate Act and regulations includes program requirements.  {O!  Consultation with the Regional Administrator (124.62(a)(2)) means review by the Regional Administrator following evaluation by a panel of the technical merits of all 301(k) applications approved by the Director. The panel (to be appointed by the Director of the Office of Water Enforcement and Permits) will consist of Headquarters, Regional, and State personnel familiar with the industrial category in question.  {O$  CWA means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act of Federal Pollution Control Act Amendments of 1972) Public Law 92 - 500, as amended by Public Law 95 - 217 and Public  {OX& Law 95 - 576; 33 U.S.C. 1251 et seq. "'0*((  {O  Director means the Regional Administrator, the State director or the Tribal director as the context requires, or an authorized representative. When there is no approved State or Tribal program, and there is an EPA administered  {O program, Director means the Regional Administrator. When there is an approved State or Tribal program, ``Director'' normally means the State or Tribal director. In some circumstances, however, EPA retains the authority to take certain actions even when there is an approved State or Tribal program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction over that permit after program approval; see 123.1) In such cases, the term ``Director'' means the Regional Administrator and not the State or Tribal director.  {OD  Draft permit means a document prepared under 124.6 indicating the Director's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a ``permit.'' A notice of intent to terminate a permit and a notice of intent to deny a permit as discussed in 124.5, are types of ``draft permits.'' A denial of a request for modification, revocation and reissuance or termination, as discussed in 124.5, is not a ``draft permit.'' A ``proposal permit'' is not a ``draft permit.''  {O.  Environmental Appeals Board shall mean the Board within the Agency described in 1.25(e) of this title. The Administrator delegates authority to the Environmental Appeals Board to issue final decisions in RCRA, PSD, or UIC permit appeals filed under this subpart. An appeal directed to the Administrator, rather than to the Environmental Appeals Board, will not be considered. This delegation does not preclude the Environmental Appeals Board from referring an appeal or a motion under this subpart to the Administrator when the Environmental Appeals Board, in its discretion, deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Environmental Appeals Board, all parties shall be so notified and the rules in this subpart referring to the Environmental Appeals Board shall be interpreted as referring to the Administrator.  {Op  EPA (``EPA'') means the United States ``Environmental Protection Agency.''  {O:  Facility or activity means any ``HWM facility,'' UIC ``injection well,'' NPDES ``point source'' or ``treatment works treating domestic sewage'' or State 404 dredge or fill activity, or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the RCRA, UIC, NPDES, or 404 programs.  {O  General permit (NPDES and 404) means an NPDES or 404 ``permit'' authorizing a category of discharges or activities under the CWA within a geographical area. For NPDES, a general permit means a permit issued under 122.28. For 404, a general permit means a permit issued under 233.37.  {O  Indian Tribe means (except in the case of RCRA) any Indian Tribe having a Federally recognized governing body carrying out substantial governmental duties and powers over a defined area.  {O  Interstate agency means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator under the ``appropriate Act and regulations.''  {O  Major facility means any RCRA, UIC, NPDES, or 404 ``facility or activity'' classified as such by the Regional Administrator, or, in the case of ``approved State programs,'' the Regional Administrator in conjunction with the State Director.  {O  NPDES means National Pollutant Discharge Elimination System.  {O  Owner or operator means owner or operator of any ``facility or activity'' subject to regulation under the RCRA, UIC, NPDES, or 404 programs.  {OX  Permit means an authorization, license, or equivalent control document issued by EPA or an ``approved State'' to implement the requirements of this part and parts 122, 123, 144, 145, 233, 270, and 271. ``Permit'' includes RCRA ``permit by rule'' (270.60), UIC area permit (144.33), NPDES or 404 ``general permit'' (270.61, 144.34, and 233.38). Permit does not include RCRA interim status (270.70), UIC authorization by rule (144.21), or any permit which has not yet been the subject of final agency action, such as a ``draft permit'' or a ``proposed permit.''  {OB#  Person means an individual, association, partnership, corporation, municipality, State, Federal, or Tribal agency, or an agency or employee thereof.  {O$  RCRA means the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976  {O% (Pub. L. 94 - 580, as amended by Pub. L. 95 - 609, 42 U.S.C. 6901 et seq).  {Oh&  Regional Administrator means the Regional Administrator of the appropriate Regional Office of the Environmental Protection Agency or the authorized representative of the Regional Administrator.2'0*((Ԍ {O  Schedule of compliance means a schedule of remedial measures included in a ``permit,'' including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the ``appropriate Act and regulations.''  {OZ  SDWA means the Safe Drinking Water Act (Pub. L. 95 - 523, as amended by Pub. L. 95 - 1900; 42 U.S.C. 300f  {O$ et seq).  {O  Section 404 program or State 404 program or 404 means an ``approved State program'' to regulate the ``discharge of dredged material'' and the ``discharge of fill material'' under section 404 of the Clean Water Act in ``State regulated waters.''  {OH  Site means the land or water area where any ``facility or activity'' is physically located or conducted, including adjacent land used in connection with the facility or activity.  {O  State means one of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific Islands (except in the case of RCRA), the Commonwealth of the Northern Mariana Islands, or an Indian Tribe treated as a State (except in the case of  {O4 RCRA). State Director means the chief administrative officer of any State, interstate, or Tribal agency operating an approved program, or the delegated representative of the State director. If the responsibility is divided among two or more States, interstate, or Tribal agencies, ``State Director'' means the chief administrative officer of the State, interstate, or Tribal agency authorized to perform the particular procedure or function to which reference is made.  {OV  State Director means the chief administrative officer of any State or interstate agency operating an ``approved program,'' or the delegated representative of the state Director. If responsibility is divided among two or more State or interstate agencies, ``State Director'' means the chief administrative officer of the State or interstate agency authorized to perform the particular procedure or function to which reference is made.  {Ox  UIC means the Underground Injection Control program under Part C of the Safe Drinking Water Act, including an ``approved program.''  {O   Variance (NPDES) means any mechanism or provision under section 301 or 316 of CWA or under 40 CFR part 125, or in the applicable ``effluent limitations guidelines'' which allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of CWA. This includes provisions which allow the establishment of alternative limitations based on fundamentally different factors or on sections 301(c), 301(g), 301(h), 301(i), or 316(a) of CWA.  {O  (b) For the purposes of part 124, the term Director means the State Director or Regional Administrator and is used when the accompanying provision is required of EPA-administered programs and of State programs under  {O 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA). The term Regional Administrator is used when the accompanying provision applies exclusively to EPA-issued permits and is not applicable to State programs under these sections. While States are not required to implement these latter provisions, they are not precluded from doing so, notwithstanding use of the term ``Regional Administrator.''  {O  (c) The term formal hearing means any evidentiary hearing under subpart E or any panel hearing under subpart F but does not mean a public hearing conducted under 124.12. [48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30, 1983, as amended at 49 FR 25981, June 25, 1984; 53 FR 37410, Sept. 26, 1988; 54 FR 18785, May 2, 1989; 57 FR 5335, Feb. 13, 1992]  yO"  124.3 Application for a permit.  {O!  (a) Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA). (1) Any person who requires a permit under the RCRA, UIC, NPDES, or PSD programs shall complete, sign, and submit to the Director an application for each permit required under 270.1 (RCRA), 144.1 (UIC), 40 CFR 52.21 (PSD), and 122.1 (NPDES). Applications are not required for RCRA permits by rule (270.60), underground injections authorized by rules (144.21 through 144.26), NPDES general permits (122.28) and 404 general permits (233.37). (2) The Director shall not begin the processing of a permit until the applicant has fully complied with the application requirements for that permit. See 270.10, 270.13 (RCRA), 144.31 (UIC), 40 CFR 52.21 (PSD), and 122.21 (NPDES).,'0*((Ԍ (3) Permit applications (except for PSD permits) must comply with the signature and certification requirements of 122.22 (NPDES), 144.32 (UIC), 233.6 (404), and 270.11 (RCRA). (b) [Reserved] (c) The Regional Administrator shall review for completeness every application for an EPA-issued permit. Each application for an EPA-issued permit submitted by a new HWM facility, a new UIC injection well, a major PSD stationary source or major PSD modification, or an NPDES new source or NPDES new discharger should be reviewed for completeness by the Regional Administrator within 30 days of its receipt. Each application for an EPA-issued permit submitted by an existing HWM facility (both Parts A and B of the application), existing injection well or existing NPDES source or sludge-only facility should be reviewed for completeness within 60 days of receipt. Upon completing the review, the Regional Administrator shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Regional Administrator shall list the information necessary to make the application complete. When the application is for an existing HWM facility, an existing UIC injection well or an existing NPDES source or ``sludge-only facility'' the Regional Administrator shall specify in the notice of deficiency a date for submitting the necessary information. The Regional Administrator shall notify the applicant that the application is complete upon receiving this information. After the application is completed, the Regional Administrator may request additional information from an applicant but only when necessary to clarify, modify, or supplement previously submitted material. Requests for such additional information will not render an application incomplete. (d) If an applicant fails or refuses to correct deficiencies in the application, the permit may be denied and appropriate enforcement actions may be taken under the applicable statutory provision including RCRA section 3008, SDWA sections 1423 and 1424, CAA section 167, and CWA sections 308, 309, 402(h), and 402(k). (e) If the Regional Administrator decides that a site visit is necessary for any reason in conjunction with the processing of an application, he or she shall notify the applicant and a date shall be scheduled. (f) The effective date of an application is the date on which the Regional Administrator notifies the applicant that the application is complete as provided in paragraph (c) of this section. (g) For each application from a major new HWM facility, major new UIC injection well, major NPDES new source, major NPDES new discharger, or a permit to be issued under provisions of 122.28(c), the Regional Administrator shall, no later than the effective date of the application, prepare and mail to the applicant a project decision schedule. (This paragraph does not apply to PSD permits.) The schedule shall specify target dates by which the Regional Administrator intends to: (1) Prepare a draft permit; (2) Give public notice; (3) Complete the public comment period, including any public hearing; (4) Issue a final permit; and (5) In the case of an NPDES permit, complete any formal proceedings under subpart E or F.  {O  (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42  {O U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 54 FR 18785, May 2, 1989]  yO  124.4 Consolidation of permit processing. (a)(1) Whenever a facility or activity requires a permit under more than one statute covered by these regulations, processing of two or more applications for those permits may be consolidated. The first step in consolidation is to prepare each draft permit at the same time. (2) Whenever draft permits are prepared at the same time, the statements of basis (required under 124.7 for EPA-issued permits only) or fact sheets (124.8), administrative records (required under 124.9 for EPA-issued permits only), public comment periods (124.10), and any public hearings (124.12) on those permits should also L& 0*(( be consolidated. The final permits may be issued together. They need not be issued together if in the judgment of the Regional Administrator or State Director(s), joint processing would result in unreasonable delay in the issuance of one or more permits. (b) Whenever an existing facility or activity requires additional permits under one or more of the statutes covered by these regulations, the permitting authority may coordinate the expiration date(s) of the new permit(s) with the expiration date(s) of the existing permit(s) so that all permits expire simultaneously. Processing of the subsequent applications for renewal permits may then be consolidated. (c) Processing of permit applications under paragraph (a) or (b) of this section may be consolidated as follows: (1) The Director may consolidate permit processing at his or her discretion whenever a facility or activity requires all permits either from EPA or from an approved State. (2) The Regional Administrator and the State Director(s) may agree to consolidate draft permits whenever a facility or activity requires permits from both EPA and an approved State. (3) Permit applicants may recommend whether or not the processing of their applications should be consolidated. (d) Whenever permit processing is consolidated and the Regional Administrator invokes the ``initial licensing'' provisions of subpart F for an NPDES, RCRA, or UIC permit, any permit(s) with which that NPDES, RCRA or UIC permit was consolidated shall likewise be processed under subpart F. (e) Except with the written consent of the permit applicant, the Regional Administrator shall not consolidate processing a PSD permit with any other permit under paragraph (a) or (b) of this section or process a PSD permit under subpart F as provided in paragraph (d) of this section when to do so would delay issuance of the PSD permit more than one year from the effective date of the application under 124.3(f).  yO0  124.5 Modification, revocation and reissuance, or termination of permits.  {O  (a) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)).  yO Permits (other than PSD permits) may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) or upon the Director's initiative. However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in 122.62 or 122.64 (NPDES), 144.39 or 144.40 (UIC), 233.14 or 233.15 (404), and 270.41 or 270.43 (RCRA). All requests shall be in writing and shall contain facts or reasons supporting the request. (b) If the Director decides the request is not justified, he or she shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or hearings. Denials by the Regional Administrator may be informally appealed to the Administrator by a letter briefly setting forth the relevant facts. The Administrator may direct the Regional Administrator to begin modification, revocation and reissuance, or termination proceedings under paragraph (c) of this section. The appeal shall be considered denied if the Administrator takes no action on the letter within 60 days after receiving it. This informal appeal is, under 5 U.S.C. 704, a prerequisite to seeking judicial review of EPA action in denying a request for modification, revocation and reissuance, or termination.  {O  (c) (Applicable to State programs, see 123.25 (NPDES, 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). (1) If the Director tentatively decides to modify or revoke and reissue a permit under 122.62 (NPDES), 144.39 (UIC), 233.14 (404), or 270.41 or 270.42(c) (RCRA), he or she shall prepare a draft permit under 124.6 incorporating the proposed changes. The Director may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, the Director shall require the submission of a new application. (2) In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued. (3) ``Minor modifications'' as defined in 122.63 (NPDES), 144.41 (UIC), and 233.16 (404), and ``Classes 1 and 2 modifications'' as defined in 270.42 (a) and (b) (RCRA) are not subject to the requirements of this section.' 0*((Ԍ {O  (d) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). If the Director tentatively decides to terminate a permit under 122.64 (NDPES), 144.40 (UIC), 233.15 (404), or 270.43 (RCRA), he or she shall issue a notice of intent to terminate. A notice of intent to terminate is a type of draft permit which follows the same procedures as any draft permit prepared under 124.6. In the case of EPA-issued permits, a notice of intent to terminate shall not be issued if the Regional Administrator and the permittee agree to termination in the course of transferring permit responsibility to an approved State under 123.24(b)(1) (NPDES), 145.24(b)(1) (UIC), 271.8(b)(6) (RCRA), or 501.14(b)(1) (Sludge). (e) When EPA is the permitting authority, all draft permits (including notices of intent to terminate) prepared under this section shall be based on the administrative record as defined in 124.9.  {O   (f) (Applicable to State programs, see 233.26 (404)). Any request by the permittee for modification to an existing 404 permit (other than a request for a minor modification as defined in 233.16 (404)) shall be treated as a permit application and shall be processed in accordance with all requirements of 124.3. (g)(1) (Reserved for PSD Modification Provisions). (2) PSD permits may be terminated only by rescission under 52.21(w) or by automatic expiration under 52.21(r). Applications for rescission shall be precessed under 52.21(w) and are not subject to this part.  yO  Effective Date Note: Information collection requirements in this 124.5 have not been approved by the Office of Management and Budget and are not effective, pending OMB approval. [48 FR 14264, Apr. 1, 1983, as amended at 53 FR 37934, Sept. 28, 1988; 54 FR 18785, May 2, 1989]  yO4  124.6 Draft permits.  {O  (a) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).)  yO Once an application is complete, the Director shall tentatively decide whether to prepare a draft permit (except in the case of State section 404 permits for which no draft permit is required under 233.39) or to deny the application. (b) If the Director tentatively decides to deny the permit application, he or she shall issue a notice of intent to deny. A notice of intent to deny the permit application is a type of draft permit which follows the same procedures as any draft permit prepared under this section. See 124.6(e). If the Director's final decision (124.15) is that the tentative decision to deny the permit application was incorrect, he or she shall withdraw the notice of intent to deny and proceed to prepare a draft permit under paragraph (d) of this section.  {O  (c) (Applicable to State programs, see 123.25 (NPDES) and 233.26 (404).) If the Director tentatively decides to issue an NPDES or 404 general permit, he or she shall prepare a draft general permit under paragraph (d) of this section.  {O`  (d) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) If the Director decides to prepare a draft permit, he or she shall prepare a draft permit that contains the following information: (1) All conditions under 122.41 and 122.43 (NPDES), 144.51 and 144.42 (UIC, 233.7 and 233.8 (404, or 270.30 and 270.32 (RCRA) (except for PSD permits))); (2) All compliance schedules under 122.47 (NPDES), 144.53 (UIC), 233.10 (404), or 270.33 (RCRA) (except for PSD permits); (3) All monitoring requirements under 122.48 (NPDES), 144.54 (UIC), 233.11 (404), or 270.31 (RCRA) (except for PSD permits); and (4) For: (i) RCRA permits, standards for treatment, storage, and/or disposal and other permit conditions under 270.30; (ii) UIC permits, permit conditions under 144.52; (iii) PSD permits, permit conditions under 40 CFR 52.21; (iv) 404 permits, permit conditions under 233.7 and 233.8; R& 0*(( (v) NPDES permits, effluent limitations, standards, prohibitions, standards for sewage sludge use or disposal, and conditions under 122.41, 122.42, and 122.44, including when applicable any conditions certified by a State agency under 124.55, and all variances that are to be included under 124.63.  {OX  (e) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) All draft permits prepared by EPA under this section shall be accompanied by a statement of basis (124.7) or fact sheet (124.8), and shall be based on the administrative record (124.9), publicly noticed (124.10) and made available for public comment (124.11). The Regional Administrator shall give notice of opportunity for a public hearing (124.12), issue a final decision (124.15) and respond to comments (124.17). For RCRA, UIC or PSD permits, an appeal may be taken under 124.19 and, for NPDES permits, an appeal may be taken under 124.74. Draft permits prepared by a State shall be accompanied by a fact sheet if required under 124.8. [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989]  yO*  124.7 Statement of basis. EPA shall prepare a statement of basis for every draft permit for which a fact sheet under 124.8 is not prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis shall be sent to the applicant and, on request, to any other person.  yO  124.8 Fact sheet.  {O2  (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).)  {O  (a) A fact sheet shall be prepared for every draft permit for a major HWM, UIC, 404, or NPDES facility or activity, for every Class I sludge management facility, for every 404 and NPDES general permit (237.37 and 122.28), for every NPDES draft permit that incorporates a variance or requires an explanation under 124.56(b), for every draft permit that includes a sewage sludge land application plan under 40 CFR 501.15(a)(2)(ix), and for every draft permit which the Director finds is the subject of wide-spread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director shall send this fact sheet to the applicant and, on request, to any other person. (b) The fact sheet shall include, when applicable: (1) A brief description of the type of facility or activity which is the subject of the draft permit; (2) The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged. (3) For a PSD permit, the degree of increment consumption expected to result from operation of the facility or activity. (4) A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by 124.9 (for EPA-issued permits); (5) Reasons why any requested variances or alternatives to required standards do or do not appear justified; (6) A description of the procedures for reaching a final decision on the draft permit including: (i) The beginning and ending dates of the comment period under 124.10 and the address where comments will be received; (ii) Procedures for requesting a hearing and the nature of that hearing; and (iii) Any other procedures by which the public may participate in the final decision. (7) Name and telephone number of a person to contact for additional information. (8) For NPDES permits, provisions satisfying the requirements of 124.56. [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786, May 2, 1989] ' 0*((Ԍ yO ԙ 124.9 Administrative record for draft permits when EPA is the permitting authority. (a) The provisions of a draft permit prepared by EPA under 124.6 shall be based on the administrative record defined in this section. (b) For preparing a draft permit under 124.6, the record shall consist of: (1) The application, if required, and any supporting data furnished by the applicant; (2) The draft permit or notice of intent to deny the application or to terminate the permit; (3) The statement of basis (124.7) or fact sheet (124.8); (4) All documents cited in the statement of basis or fact sheet; and (5) Other documents contained in the supporting file for the draft permit. (6) For NPDES new source draft permits only, any environmental assessment, environmental impact statement (EIS), finding of no significant impact, or environmental information document and any supplement to an EIS that may have been prepared. NPDES permits other than permits to new sources as well as all RCRA, UIC and PSD permits are not subject to the environmental impact statement provisions of section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 4321. (c) Material readily available at the issuing Regional Office or published material that is generally available, and that is included in the administrative record under paragraphs (b) and (c) of this section, need not be physically included with the rest of the record as long as it is specifically referred to in the statement of basis or the fact sheet. (d) This section applies to all draft permits when public notice was given after the effective date of these regulations.  yO0  124.10 Public notice of permit actions and public comment period.  {O  (a) Scope. (1) The Director shall give public notice that the following actions have occurred: (i) A permit application has been tentatively denied under 124.6(b);  {OR  (ii) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). A draft permit has been prepared under 124.6(d);  {O  (iii) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404) and 271.14 (RCRA)). A hearing has been scheduled under 124.12, subpart E or subpart F; (iv) An appeal has been granted under 124.19(c);  {O>  (v) (Applicable to State programs, see 233.26 (404)). A State section 404 application has been received in cases when no draft permit will be prepared (see 233.39); or (vi) An NPDES new source determination has been made under 122.29. (2) No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under 124.5(b). Written notice of that denial shall be given to the requester and to the permittee. (3) Public notices may describe more than one permit or permit actions.  {O  (b) Timing (applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404, and 271.14  {O (RCRA)). (1) Public notice of the preparation of a draft permit (including a notice of intent to deny a permit application) required under paragraph (a) of this section shall allow at least 30 days for public comment. For RCRA permits only, public notice shall allow at least 45 days for public comment. For EPA-issued permits, if the Regional Administrator determines under 40 CFR part 6, subpart F that an Environmental Impact Statement (EIS) shall be prepared for an NPDES new source, public notice of the draft permit shall not be given until after a draft EIS is issued. (2) Public notice of a public hearing shall be given at least 30 days before the hearing. (Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.)  {O#  (c) Methods (applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14  {O$ (RCRA)). Public notice of activities described in paragraph (a)(1) of this section shall be given by the following methods: (1) By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive his or her rights to receive notice for any classes and categories of permits); ' 0*((Ԍ (i) The applicant (except for NPDES and 404 general permits when there is no applicant); (ii) Any other agency which the Director knows has issued or is required to issue a RCRA, UIC, PSD (or other permit under the Clean Air Act), NPDES, 404, sludge management permit, or ocean dumping permit under the Marine Research Protection and Sanctuaries Act for the same facility or activity (including EPA when the draft permit is prepared by the State); (iii) Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected States (Indian Tribes). (For purposes of this paragraph, and in the context of the Underground Injection Control Program only, the term State includes Indian Tribes treated as States.) (iv) For NPDES and 404 permits only, any State agency responsible for plan development under CWA section 208(b)(2), 208(b)(4) or 303(e) and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service; (v) For NPDES permits only, any user identified in the permit application of a privately owned treatment works; (vi) For 404 permits only, any reasonably ascertainable owner of property adjacent to the regulated facility or activity and the Regional Director of the Federal Aviation Administration if the discharge involves the construction of structures which may affect aircraft operations or for purposes associated with seaplane operations; (vii) For PSD permits only, affected State and local air pollution control agencies, the chief executives of the city and county where the major stationary source or major modification would be located, any comprehensive regional land use planning agency and any State, Federal Land Manager, or Indian Governing Body whose lands may be affected by emissions from the regulated activity; (viii) For Class I injection well UIC permits only, state and local oil and gas regulatory agencies and state agencies regulating mineral exploration and recovery; (ix) Persons on a mailing list developed by: (A) Including those who request in writing to be on the list; (B) Soliciting persons for ``area lists'' from participants in past permit proceedings in that area; and (C) Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as Regional and State funded newsletters, environmental bulletins, or State law journals. (The Director may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Director may delete from the list the name of any person who fails to respond to such a request.) (x)(A) To any unit of local government having jurisdiction over the area where the facility is proposed to be located; and (B) to each State agency having any authority under State law with respect to the construction or operation of such facility. (2)(i) For major permits, NPDES and 404 general permits, and permits that include sewage sludge land application plans under 40 CFR 501.15(a)(2)(ix), publication of a notice in a daily or weekly newspaper within the  yOX area affected by the facility or activity; and for EPA-issued NPDES general permits, in the Federal Register;  yO  Note: The Director is encouraged to provide as much notice as possible of the NPDES or Section 404 draft general permit to the facilities or activities to be covered by the general permit. (ii) For all RCRA permits, publication of a notice in a daily or weekly major local newspaper of general circulation and broadcast over local radio stations. (3) When the program is being administered by an approved State, in a manner constituting legal notice to the  {O! public under State law; and  {Ob"  (4) Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.  {O#  (d) Contents (applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14  {O$ (RCRA))--(1) All public notices. All public notices issued under this part shall contain the following minimum information: (i) Name and address of the office processing the permit action for which notice is being given; '0*(( (ii) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of NPDES and 404 draft general permits under 122.28 and 233.37; (iii) A brief description of the business conducted at the facility or activity described in the permit application or the draft permit, for NPDES or 404 general permits when there is no application. (iv) Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, as the case may be, statement of basis or fact sheet, and the application; and (v) A brief description of the comment procedures required by 124.11 and 124.12 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision. (vi) For EPA-issued permits, the location of the administrative record required by 124.9, the times at which the record will be open for public inspection, and a statement that all data submitted by the applicant is available as part of the administrative record. (vii) For NPDES permits only (including those for ``sludge-only facilities''), a general description of the location of each existing or proposed discharge point and the name of the receiving water and the sludge use and disposal practice(s) and the location of each sludge treatment works treating domestic sewage and use or disposal sites known at the time of permit application. For draft general permits, this requirement will be satisfied by a map or description of the permit area. For draft general permits, this requirement will be satisfied by a map or description of the permit area. For EPA-issued NPDES permits only, if the discharge is from a new source, a statement as to whether an environmental impact statement will be or has been prepared. (viii) For 404 permits only, (A) The purpose of the proposed activity (including, in the case of fill material, activities intended to be conducted on the fill), a description of the type, composition, and quantity of materials to be discharged and means of conveyance; and any proposed conditions and limitations on the discharge; (B) The name and water quality standards classification, if applicable, of the receiving waters into which the discharge is proposed, and a general description of the site of each proposed discharge and the portions of the site and the discharges which are within State regulated waters; (C) A description of the anticipated environmental effects of activities conducted under the permit; (D) References to applicable statutory or regulatory authority; and (E) Any other available information which may assist the public in evaluating the likely impact of the proposed activity upon the integrity of the receiving water. (ix) Any additional information considered necessary or proper.  {O  (2) Public notices for hearings. In addition to the general public notice described in paragraph (d)(1) of this section, the public notice of a hearing under 124.12, subpart E, or subpart F shall contain the following information: (i) Reference to the date of previous public notices relating to the permit; (ii) Date, time, and place of the hearing; (iii) A brief description of the nature and purpose of the hearing, including the applicable rules and procedures; and (iv) For 404 permits only, a summary of major issues raised to date during the public comment period.  {Oz  (e) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). In addition to the general public notice described in paragraph (d)(1) of this section, all persons identified in paragraphs (c)(1) (i), (ii), (iii), and (iv) of this section shall be mailed a copy of the fact sheet or statement of basis (for EPA-issued permits), the permit application (if any) and the draft permit (if any). [48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30, 1983, as amended at 53 FR 28147, July 26, 1988; 53 FR 37410, Sept. 26, 1988; 54 FR 258, Jan. 4, 1989; 54 FR 18786, May 2, 1989] %0*((  yO 124.11 Public comments and requests for public hearings.  {O  (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) During the public comment period provided under 124.10, any interested person may submit written comments on the draft permit or the permit application for 404 permits when no draft permit is required (see 233.39) and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be answered as provided in 124.17.  yO  124.12 Public hearings.  {Ob  (a) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) (1) The Director shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest in a draft permit(s); (2) The Director may also hold a public hearing at his or her discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision; (3) For RCRA permits only, (i) the Director shall hold a public hearing whenever he or she receives written notice of opposition to a draft permit and a request for a hearing within 45 days of public notice under 124.10(b)(1); (ii) whenever possible the Director shall schedule a hearing under this section at a location convenient to the nearest population center to the proposed facility; (4) Public notice of the hearing shall be given as specified in 124.10. (b) Whenever a public hearing will be held and EPA is the permitting authority, the Regional Administrator shall designate a Presiding Officer for the hearing who shall be responsible for its scheduling and orderly conduct. (c) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under 124.10 shall automatically be extended to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing. (d) A tape recording or written transcript of the hearing shall be made available to the public. (e)(1) At his or her discretion, the Regional Administrator may specify that RCRA or UIC permits be processed under the procedures in subpart F. (2) For initial RCRA permits for existing HWM facilities, the Regional Administrator shall have the discretion to provide a hearing under the procedures in subpart F. The permit applicant may request such a hearing pursuant to 124.114 no one or more issues, if the applicant explains in his request why he or she believes those issues: (i) Are genuine issues to material fact; and (ii) determine the outcome of one or more contested permit conditions identified as such in the applicant's request, that would require extensive changes to the facility (``contested major permit conditions''). If the Regional Administrator decides to deny the request, he or she shall send to the applicant a brief written statement of his or her reasons for concluding that no such determinative issues have been presented for resolution in such a hearing. [48 FR 14264, Apr. 1, 1983, as amended at 49 FR 17718, Apr. 24, 1984; 50 FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989]  yOd"  124.13 Obligation to raise issues and provide information during the public comment period. All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Director's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period (including any public hearing) under 124.10. Any supporting materials which are submitted shall be included in full and may not be incorporated by reference, unless they are already part'0*(( of the administrative record in the same proceeding, or consist of State or Federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials. Commenters shall make supporting materials not already included in the administrative record available to EPA as directed by the Regional Administrator. (A comment period longer than 30 days may be necessary to give commenters a reasonable opportunity to comply with the requirements of this section. Additional time shall be granted under 124.10 to the extent that a commenter who requests additional time demonstrates the need for such time.) [49 FR 38051, Sept. 26, 1984]  yO  124.14 Reopening of the public comment period. (a)(1) The Regional Administrator may order the public comment period reopened if the procedures of this paragraph could expedite the decisionmaking process. When the public comment period is reopened under this paragraph, all persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Regional Administrator's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must submit all reasonably available factual grounds supporting their position, including all supporting material, by a date, not less than sixty days after public notice under paragraph (a)(2) of this section, set by the Regional Administrator. Thereafter, any person may file a written response to the material filed by any other person, by a date, not less than twenty days after the date set for filing of the material, set by the Regional Administrator. (2) Public notice of any comment period under this paragraph shall identify the issues to which the requirements of 124.14(a) shall apply. (3) On his own motion or on the request of any person, the Regional Administrator may direct that the requirements of paragraph (a)(1) of this section shall apply during the initial comment period where it reasonably appears that issuance of the permit will be contested and that applying the requirements of paragraph (a)(1) of this section will substantially expedite the decisionmaking process. The notice of the draft permit shall state whenever this has been done. (4) A comment period of longer than 60 days will often be necessary in complicated proceedings to give commenters a reasonable opportunity to comply with the requirements of this section. Commenters may request longer comment periods and they shall be granted under 124.10 to the extent they appear necessary. (b) If any data information or arguments submitted during the public comment period, including information or arguments required under 124.13, appear to raise substantial new questions concerning a permit, the Regional Administrator may take one or more of the following actions: (1) Prepare a new draft permit, appropriately modified, under 124.6; (2) Prepare a revised statement of basis under 124.7, a fact sheet or revised fact sheet under 124.8 and reopen the comment period under 124.14; or (3) Reopen or extend the comment period under 124.10 to give interested persons an opportunity to comment on the information or arguments submitted. (c) Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under 124.10 shall define the scope of the reopening. (d) For RCRA, UIC, or NPDES permits, the Regional Administrator may also, in the circumstances described above, elect to hold further proceedings under subpart F. This decision may be combined with any of the actions enumerated in paragraph (b) of this section. (e) Public notice of any of the above actions shall be issued under 124.10. [48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984] %0*((  yO 124.15 Issuance and effective date of permit. (a) After the close of the public comment period under 124.10 on a draft permit, the Regional Administrator shall issue a final permit decision (or a decision to deny a permit for the active life of a RCRA hazardous waste management facility or unit under 270.29). The Regional Administrator shall notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. This notice shall include reference to the procedures for appealing a decision on a RCRA, UIC, or PSD permit or for contesting a decision on an NPDES permit or a decision to terminate a RCRA permit. For the purposes of this section, a final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit. (b) A final permit decision (or a decision to deny a permit for the active life of a RCRA hazardous waste management facility or unit under 270.29) shall become effective 30 days after the service of notice of the decision unless: (1) A later effective date is specified in the decision; or (2) Review is requested under 124.19 (RCRA, UIC, and PSD permits) or an evidentiary hearing is requested under 124.74 (NPDES permit and RCRA permit terminations); or (3) No comments requested a change in the draft permit, in which case the permit shall become effective immediately upon issuance. [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989]  yOh  124.16 Stays of contested permit conditions.  {O  (a) Stays. (1) If a request for review of a RCRA or UIC permit under 124.19 or an NPDES permit under 124.74 or 124.114 is granted or if conditions of a RCRA or UIC permit are consolidated for reconsideration in an evidentiary hearing on an NPDES permit under 124.74, 124.82 or 124.114, the effect of the contested permit conditions shall be stayed and shall not be subject to judicial review pending final agency action. (No stay of a PSD permit is available under this section.) If the permit involves a new facility or new injection well, new source, new discharger or a recommencing discharger, the applicant shall be without a permit for the proposed new facility, injection well, source or discharger pending final agency action. See also 124.60. (2) Uncontested conditions which are not severable from those contested shall be stayed together with the contested conditions. Stayed provisions of permits for existing facilities, injection wells, and sources shall be identified by the Regional Administrator. All other provisions of the permit for the existing facility, injection well, or source shall remain fully effective and enforceable.  {O  (b) Stays based on cross effects. (1) A stay may be granted based on the grounds that an appeal to the Administrator under 124.19 of one permit may result in changes to another EPA-issued permit only when each of the permits involved has been appealed to the Administrator and he or she has accepted each appeal. (2) No stay of an EPA-issued RCRA, UIC, or NPDES permit shall be granted based on the staying of any State-issued permit except at the discretion of the Regional Administrator and only upon written request from the State Director. (c) Any facility or activity holding an existing permit must: (1) Comply with the conditions of that permit during any modification or revocation and reissuance proceeding under 124.5; and (2) To the extent conditions of any new permit are stayed under this section, comply with the conditions of the existing permit which correspond to the stayed conditions, unless compliance with the existing conditions would be technologically incompatible with compliance with other conditions of the new permit which have not been stayed. %0*((  yO 124.17 Response to comments.  {O  (a) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) At the time that any final permit decision is issued under 124.15, the Director shall issue a response to comments. States are only required to issue a response to comments when a final permit is issued. This response shall: (1) Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and (2) Briefly describe and respond to all significant comments on the draft permit or the permit application (for section 404 permits only) raised during the public comment period, or during any hearing. (b) For EPA-issued permits, any documents cited in the response to comments shall be included in the administrative record for the final permit decision as defined in 124.18. If new points are raised or new material supplied during the public comment period, EPA may document its response to those matters by adding new materials to the administrative record.  {O*  (c) (Applicable to State programs, see 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) The response to comments shall be available to the public.  yOL  124.18 Administrative record for final permit when EPA is the permitting authority. (a) The Regional Administrator shall base final permit decisions under 124.15 on the administrative record defined in this section. (b) The administrative record for any final permit shall consist of the administrative record for the draft permit and: (1) All comments received during the public comment period provided under 124.10 (including any extension or reopening under 124.14); (2) The tape or transcript of any hearing(s) held under 124.12; (3) Any written materials submitted at such a hearing; (4) The response to comments required by 124.17 and any new material placed in the record under that section; (5) For NPDES new source permits only, final environmental impact statement and any supplement to the final EIS; (6) Other documents contained in the supporting file for the permit; and (7) The final permit. (c) The additional documents required under paragraph (b) of this section should be added to the record as soon as possible after their receipt or publication by the Agency. The record shall be complete on the date the final permit is issued. (d) This section applies to all final RCRA, UIC, PSD, and NPDES permits when the draft permit was subject to the administrative record requirements of 124.9 and to all NPDES permits when the draft permit was included in a public notice after October 12, 1979. (e) Material readily available at the issuing Regional Office, or published materials which are generally available and which are included in the administrative record under the standards of this section or of 124.17 (``Response to comments''), need not be physically included in the same file as the rest of the record as long as it is specifically referred to in the statement of basis or fact sheet or in the response to comments.  yOd"  124.19 Appeal of RCRA, UIC, and PSD permits. (a) Within 30 days after a RCRA, UIC, or PSD final permit decision (or a decision under 270.29 to deny a permit for the active life of a RCRA hazardous waste management facility or unit) has been issued under 124.15, any person who filed comments on that draft permit or participated in the public hearing may petition the Environmental Appeals Board to review any condition of the permit decision. Any person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administrative review'0*(( only to the extent of the changes from the draft to the final permit decision. The 30-day period within which a person may request review under this section begins with the service of notice of the Regional Administrator's action unless a later date is specified in that notice. The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations and when appropriate, a showing that the condition in question is based on: (1) A finding of fact or conclusion of law which is clearly erroneous, or (2) An exercise of discretion or an important policy consideration which the Environmental Appeals Board should, in its discretion, review. (b) The Environmental Appeals Board may also decide on its initiative to review any condition of any RCRA, UIC, or PSD permit issued under this part. The Environmental Appeals Board must act under this paragraph within 30 days of the service date of notice of the Regional Administrator's action. (c) Within a reasonable time following the filing of the petition for review, the Environmental Appeals Board shall issue an order granting or denying the petition for review. To the extent review is denied, the conditions of the final permit decision become final agency action. Public notice of any grant of review by the Environmental Appeals Board under paragraph (a) or (b) of this section shall be given as provided in 124.10. Public notice shall set forth a briefing schedule for the appeal and shall state that any interested person may file an amicus brief. Notice of denial of review shall be sent only to the person(s) requesting review. (d) The Environmental Appeals Board may defer consideration of an appeal of a RCRA or UIC permit under this section until the completion of formal proceedings under subpart E or F relating to an NPDES permit issued to the same facility or activity upon concluding that: (1) The NPDES permit is likely to raise issues relevant to a decision of the RCRA or UIC appeals; (2) The NPDES permit is likely to be appealed; and  {O  (3) Either: (i) The interests of both the facility or activity and the public are not likely to be materially adversely affected by the deferral; or (ii) Any adverse effect is outweighed by the benefits likely to result from a consolidated decision on appeal. (e) A petition to the Environmental Appeals Board under paragraph (a) of this section is, under 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final agency action. (f)(1) For purposes of judicial review under the appropriate Act, final agency action occurs when a final RCRA, UIC, or PSD permit is issued or denied by EPA and agency review procedures are exhausted. A final permit decision shall be issued by the Regional Administrator: (i) When the Environmental Appeals Board issues notice to the parties that review has been denied; (ii) When the Environmental Appeals Board issues a decision on the merits of the appeal and the decision does not include a remand of the proceedings; or (iii) Upon the completion of remand proceedings if the proceedings are remanded, unless the Environmental Appeals Board's remand order specifically provides that appeal of the remand decision will be required to exhaust administrative remedies.  yO  (2) Notice of any final agency action regarding a PSD permit shall promptly be published in the Federal  yO Register. (g) Motions to reconsider a final order shall be filed within ten (10) days after service of the final order. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Motions for reconsideration under this provision shall be directed to, and decided by, the Environmental Appeals Board. Motions for reconsideration directed to the administrator, rather than to the Environmental Appeals Board, will not be considered, except in cases that the Environmental Appeals Board has referred to the Administrator pursuant to 124.2 and in which the Administrator has issued the final order. A motion for reconsideration shall not stay the effective date of the final order unless specifically so ordered by the Environmental Appeals Board. [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 57 FR 5335, Feb. 13, 1992] '0*((  yO 124.20 Computation of time. (a) Any time period scheduled to begin on the occurrence of an act or event shall begin on the day after the act or event. (b) Any time period scheduled to begin before the occurrence of an act or event shall be computed so that the period ends on the day before the act or event. (c) If the final day of any time period falls on a weekend or legal holiday, the time period shall be extended to the next working day. (d) Whenever a party or interested person has the right or is required to act within a prescribed period after the service of notice or other paper upon him or her by mail, 3 days shall be added to the prescribed time.  yO`  124.21 Effective date of part 124. (a) Except for paragraphs (b) and (c) of this section, part 124 will become effective July 18, 1980. Because this effective date will precede the processing of any RCRA or UIC permits, part 124 will apply in its entirety to all RCRA and UIC permits. (b) All provisions of part 124 pertaining to the RCRA program will become effective on November 19, 1980. (c) All provisions of part 124 pertaining to the UIC program will become effective July 18, 1980, but shall not be implemented until the effective date of 40 CFR part 146. (d) This part does not significantly change the way in which NPDES permits are processed. Since October 12, 1979, NPDES permits have been the subject to almost identical requirements in the revised NPDES regulations which  {O0 were promulgated on June 7, 1979. See 44 FR 32948. To the extent this part changes the revised NPDES permit regulations, those changes will take effect as to all permit proceedings in progress on July 3, 1980. (e) This part also does not significantly change the way in which PSD permits are processed. For the most part, these regulations will also apply to PSD proceedings in progress on July 18, 1980. However, because it would be disruptive to require retroactively a formal administrative record for PSD permits issued without one, 124.9 and 124.18 will apply to PSD permits for which draft permits were prepared after the effective date of these regulations. )  yOr K  Subpart B--Specific Procedures Applicable to RCRA Permits [Reserved] *   yO   Subpart C--Specific Procedures Applicable to PSD Permits *   yO"  124.41 Definitions applicable to PSD permits. Whenever PSD permits are processed under this part, the following terms shall have the following meanings:  {Oz  Administrator, EPA, and Regional Administrator shall have the meanings set forth in 124.2, except when EPA has delegated authority to administer those regulations to another agency under the applicable subsection of 40 CFR  {O 52.21, the term EPA shall mean the delegate agency and the term Regional Administrator shall mean the chief administrative officer of the delegate agency.  {O!  Application means an application for a PSD permit.  {Oh"  Appropriate Act and Regulations means the Clean Air Act and applicable regulations promulgated under it.  {O2#  Approved program means a State implementation plan providing for issuance of PSD permits which has been  {O# approved by EPA under the Clean Air Act and 40 CFR part 51. An approved State is one administering an approved  {O$ program. State Director as used in 124.4 means the person(s) responsible for issuing PSD permits under an approved program, or that person's delegated representative.  {OX&  Construction has the meaning given in 40 CFR 52.21.  {O"'  Director means the Regional Administrator."'0*((Ԍ {O  Draft permit shall have the meaning set forth in 124.2.  {O  Facility or activity means a major PSD stationary source or major PSD modification.  {O  Federal Land Manager has the meaning given in 40 CFR 52.21.  {O^  Indian Governing Body has the meaning given in 40 CFR 52.21.  {O(  Major PSD modification means a major modification as defined in 40 CFR 52.21.  {O  Major PSD stationary source means a major stationary source as defined in 40 CFR 52.21(b)(1).  {O  Owner or operator means the owner or operator of any facility or activity subject to regulation under 40 CFR 52.21 or by an approved State.  {ON  Permit or PSD permit means a permit issued under 40 CFR 52.21 or by an approved State.  {O  Person includes an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent or employee thereof.  {Or  Regulated activity or activity subject to regulation means a major PSD stationary source or major PSD modification.  {O  Site means the land or water area upon which a major PSD stationary source or major PSD modification is physically located or conducted, including but not limited to adjacent land used for utility systems; as repair, storage,  {O shipping or processing areas; or otherwise in connection with the major PSD stationary source or major PSD modification.  {O(  State means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands.  yOJ  124.42 Additional procedures for PSD permits affecting Class I areas. (a) The Regional Administrator shall provide notice of any permit application for a proposed major PSD stationary source or major PSD modification the emissions from which would affect a Class I area to the Federal Land Manager, and the Federal official charged with direct responsibility for management of any lands within such area. The Regional Administrator shall provide such notice promptly after receiving the application. (b) Any demonstration which the Federal Land Manager wishes to present under 40 CFR 52.21(q)(3), and any variances sought by an owner or operator under 52.21(q)(4) shall be submitted in writing, together with any necessary supporting analysis, by the end of the public comment period under 124.10 or 124.118. (40 CFR 52.21(q)(3) provides for denial of a PSD permit to a facility or activity when the Federal Land Manager demonstrates that its emissions would adversely affect a Class I area even though the applicable increments would not be exceeded. 40 CFR 52.21(q)(4) conversely authorizes EPA, with the concurrence of the Federal Land Manager and State responsible, to grant certain variances from the otherwise applicable emission limitations to a facility or activity whose emissions would affect a Class I area.) (c) Variances authorized by 40 CFR 52.21 (q)(5) through (q)(7) shall be handled as specified in those paragraphs and shall not be subject to this part. Upon receiving appropriate documentation of a variance properly granted under any of these provisions, the Regional Administrator shall enter the variance in the administrative record. Any decisions later made in proceedings under this part concerning that permit shall be consistent with the conditions of that variance.  yO    Subpart D--Specific Procedures Applicable to NPDES Permits *   yOB#  124.51 Purpose and scope. (a) This subpart sets forth additional requirements and procedures for decisionmaking for the NPDES program. (b) Decisions on NPDES variance requests ordinarily will be made during the permit issuance process. Variances and other changes in permit conditions ordinarily will be decided through the same notice-and-comment and hearing procedures as the basic permit.*'0*((Ԍ  yO  124.52 Permits required on a case-by-case basis. (a) Various sections of part 122, subpart B allow the Director to determine, on a case-by-case basis, that certain concentrated animal feeding operations (122.23), concentrated aquatic animal production facilities (l22.24), storm water discharges (122.26), and certain other facilities covered by general permits (122.28) that do not generally require an individual permit may be required to obtain an individual permit because of their contributions to water pollution. (b) Whenever the Regional Administrator decides that an individual permit is required under this section, except as provided in paragraph (c) of this section, the Regional Administrator shall notify the discharger in writing of that decision and the reasons for it, and shall send an application form with the notice. The discharger must apply for a permit under 122.21 within 60 days of notice, unless permission for a later date is granted by the Regional Administrator. The question whether the designation was proper will remain open for consideration during the public comment period under 124.11 or 124.118 and in any subsequent hearing. (c) Prior to a case-by-case determination that an individual permit is required for a storm water discharge under  {O this section (see 40 CFR 122.26 (a)(1)(v) and (c)(1)(v)), the Regional Administrator may require the discharger to submit a permit application or other information regarding the discharge under section 308 of the CWA. In requiring such information, the Regional Administrator shall notify the discharger in writing and shall send an application form with the notice. The discharger must apply for a permit under 122.26 within 60 days of notice, unless permission for a later date is granted by the Regional Administrator. The question whether the initial designation was proper will remain open for consideration during the public comment period under 124.11 or 124.118 and in any subsequent hearing. [55 FR 48075, Nov. 16, 1990]  yOR  124.53 State certification. (a) Under CWA section 401(a)(1), EPA may not issue a permit until a certification is granted or waived in accordance with that section by the State in which the discharge originates or will originate. (b) Applications received without a State certification shall be forwarded by the Regional Administrator to the certifying State agency with a request that certification be granted or denied. (c) If State certification has not been received by the time the draft permit is prepared, the Regional Administrator shall send the certifying State agency: (1) A copy of a draft permit; (2) A statement that EPA cannot issue or deny the permit until the certifying State agency has granted or denied certification under 124.55, or waived its right to certify; and (3) A statement that the State will be deemed to have waived its right to certify unless that right is exercised within a specified reasonable time not to exceed 60 days from the date the draft permit is mailed to the certifying State agency unless the Regional Administrator finds that unusual circumstances require a longer time. (d) State certification shall be granted or denied within the reasonable time specified under paragraph (c)(3) of this section. The State shall send a notice of its action, including a copy of any certification, to the applicant and the Regional Administrator. (e) State certification shall be in writing and shall include: (1) Conditions which are necessary to assure compliance with the applicable provisions of CWA sections 208(e), 301, 302, 303, 306, and 307 and with appropriate requirements of State law; (2) When the State certifies a draft permit instead of a permit application, any conditions more stringent than those in the draft permit which the State finds necessary to meet the requirements listed in paragraph (e)(1) of this section. For each more stringent condition, the certifying State agency shall cite the CWA or State law references upon which that condition is based. Failure to provide such a citation waives the right to certify with respect to that condition; and'0*((Ԍ (3) A statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of State law, including water quality standards. Failure to provide this statement for any condition waives the right to certify or object to any less stringent condition which may be established during the EPA permit issuance process.  yO  124.54 Special provisions for State certification and concurrence on applications for section 301(h) variances. (a) When an application for a permit incorporating a variance request under CWA section 301(h) is submitted to a State, the appropriate State official shall either: (1) Deny the request for the CWA section 301(h) variance (and so notify the applicant and EPA) and, if the State is an approved NPDES State and the permit is due for reissuance, process the permit application under normal procedures; or (2) Forward a certification meeting the requirements of 124.53 to the Regional Administrator. (b) When EPA issues a tentative decision on the request for a variance under CWA section 301(h), and no certification has been received under paragraph (a) of this section, the Regional Administrator shall forward the tentative decision to the State in accordance with 124.53(b) specifying a reasonable time for State certification and concurrence. If the State fails to deny or grant certification and concurrence under paragraph (a) of this section within such reasonable time, certification shall be waived and the State shall be deemed to have concurred in the issuance of a CWA section 301(h) variance. (c) Any certification provided by a State under paragraph (a)(2) of this section shall constitute the State's concurrence (as required by section 301(h)) in the issuance of the permit incorporating a section 301(h) variance subject to any conditions specified therein by the State. CWA section 301(h) certification and concurrence under this section will not be forwarded to the State by EPA for recertification after the permit issuance process; States must specify any conditions required by State law, including water quality standards, in the initial certification.  yO  124.55 Effect of State certification. (a) When certification is required under CWA section 401(a)(1) no final permit shall be issued: (1) If certification is denied, or (2) Unless the final permit incorporates the requirements specified in the certification under 124.53(d)(1) and (2). (b) If there is a change in the State law or regulation upon which a certification is based, or if a court of competent jurisdiction or appropriate State board or agency stays, vacates, or remands a certification, a State which has issued a certification under 124.53 may issue a modified certification or notice of waiver and forward it to EPA. If the modified certification is received before final agency action on the permit, the permit shall be consistent with the more stringent conditions which are based upon State law identified in such certification. If the certification or notice of waiver is received after final agency action on the permit, the Regional Administrator may modify the permit on request of the permittee only to the extent necessary to delete any conditions based on a condition in a certification invalidated by a court of competent jurisdiction or by an appropriate State board or agency. (c) A State may not condition or deny a certification on the grounds that State law allows a less stringent permit condition. The Regional Administrator shall disregard any such certification conditions, and shall consider those conditions or denials as waivers of certification. (d) A condition in a draft permit may be changed during agency review in any manner consistent with a certification meeting the requirements of 124.53(d). No such changes shall require EPA to submit the permit to the State for recertification. (e) Review and appeals of limitations and conditions attributable to State certification shall be made through the applicable procedures of the State and may not be made through the procedures in this part. (f) Nothing in this section shall affect EPA's obligation to comply with 122.47. See CWA section 301(b)(1)(C). '0*((Ԍ yO  124.56 Fact sheets.  {O  (Applicable to State programs, see 123.25 (NPDES).) In addition to meeting the requirements of 124.8, NPDES fact sheets shall contain the following: (a) Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions or standards for sewage sludge use or disposal, including a citation to the applicable effluent limitation guideline, performance standard, or standard for sewage sludge use or disposal as required by 122.44 and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed. (b)(1) When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable: (i) Limitations to control toxic pollutants under 122.44(e); (ii) Limitations on internal waste streams under 122.45(i); or (iii) Limitations on indicator pollutants under 125.3(g). (iv) Limitations set on a case-by-case basis under 125.3 (c)(2) or (c)(3), or pursuant to Section 405(d)(4) of the CWA. (2) For every permit to be issued to a treatment works owned by a person other than a State or municipality, an explanation of the Director's decision on regulation of users under 122.44(m). (c) When appropriate, a sketch or detailed description of the location of the discharge or regulated activity described in the application; and (d) For EPA-issued NPDES permits, the requirements of any State certification under 124.53. (e) For permits that include a sewage sludge land application plan under 40 CFR 501.15(a)(2)(ix), a brief description of how each of the required elements of the land application plan are addressed in the permit. [48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984; 54 FR 18786, May 2, 1989]  yOR  124.57 Public notice.  {O  (a) Section 316(a) requests (applicable to State programs, see 123.25). In addition to the information required under 124.10(d)(1), public notice of an NPDES draft permit for a discharge where a CWA section 316(a) request has been filed under 122.21(l) shall include: (1) A statement that the thermal component of the discharge is subject to effluent limitations under CWA section 301 or 306 and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under section 301 or 306; (2) A statement that a section 316(a) request has been filed and that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under section 316(a) and a brief description, including a quantitative statement, of the alternative effluent limitations, if any, included in the request; and (3) If the applicant has filed an early screening request under 125.72 for a section 316(a) variance, a statement that the applicant has submitted such a plan.  {O|  (b) Evidentiary hearings under subpart E. In addition to the information required under 124.10(d)(2), public notice of a hearing under subpart E shall include: (1) Reference to any public hearing under 124.12 on the disputed permit; (2) Name and address of the person(s) requesting the evidentiary hearing; (3) A statement of the following procedures: (i) Any person seeking to be a party must file a request to be admitted as a party to the hearing within 15 days of the date of publication of the notice; (ii) Any person seeking to be a party may, subject to the requirements of 124.76, propose material issues of fact or law not already raised by the original requester or another party; (iii) The conditions of the permit(s) at issue may be amended after the evidentiary hearing and any person interested in those permit(s) must request to be a party in order to preserve any right to appeal or otherwise contest the final administative decision.'0*((Ԍ {O  (c) Non-adversary panel procedures under subpart F. (1) In addition to the information required under 124.10(d)(2), mailed public notice of a draft permit to be processed under subpart F shall include a statement that any hearing shall be held under subpart F (panel hearing). (2) Mailed public notice of a panel hearing under subpart F shall include: (i) Name and address of the person requesting the hearing, or a statement that the hearing is being held by order of the Regional Administrator, and the name and address of each known party to the hearing; (ii) A statement whether the recommended decision will be issued by the Presiding Officer or by the Regional Administrator; (iii) The due date for filing a written request to participate in the hearing under 124.117; and (iv) The due date for filing comments under 124.118. [48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985]  yO  124.58 Special procedures for EPA-issued general permits for point sources other than separate storm  yO sewers. (a) The Regional Administrator shall send a copy of the draft general permit and the administrative record to the Deputy Assistant Administrator for Water Enforcement during the public comment period. (b) The Deputy Assistant Administrator for Water Enforcement shall have 30 days from receipt of the draft general permit, or shall have until the end of the public comment period, whichever is later, to comment upon, object to, or make recommendations with respect to the draft general permit. (c) If the Deputy Assistant Administrator for Water Enforcement objects to a draft general permit within the period specified in paragraph (b) of this section, the Regional Administrator shall not issue the final general permit until the Deputy Assistant Administrator for Water Enforcement concurs in writing with the conditions of the general permit.  yO  124.59 Conditions requested by the Corps of Engineers and other government agencies.  {Or  (Applicable to State programs, see 123.25 (NPDES).) (a) If during the comment period for an NPDES draft permit, the District Engineer advises the Director in writing that anchorage and navigation of any of the waters of the United States would be substantially impaired by the granting of a permit, the permit shall be denied and the applicant so notified. If the District Engineer advised the Director that imposing specified conditions upon the permit is necessary to avoid any substantial impairment of anchorage or navigation, then the Director shall include the specified conditions in the permit. Review or appeal of denial of a permit or of conditions specified by the District Engineer shall be made through the applicable procedures of the Corps of Engineers, and may not be made through the procedures provided in this part. If the conditions are stayed by a court of competent jurisdiction or by applicable procedures of the Corps of Engineers, those conditions shall be considered stayed in the NPDES permit for the duration of that stay. (b) If during the comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any other State or Federal agency with jurisdiction over fish, wildlife, or public health advises the Director in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial impairment of fish, shellfish, or wildlife resources, the Director may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of 122.49 and of the CWA. (c) In appropriate cases the Director may consult with one or more of the agencies referred to in this section before issuing a draft permit and may reflect their views in the statement of basis, the fact sheet, or the draft permit. [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 258, Jan. 4, 1989] '0*((Ԍ yO  124.60 Issuance and effective date and stays of NPDES permits. In addition to the requirements of 124.15, the following provisions apply to NPDES permits and to RCRA or UIC permits to the extent those permits may have been consolidated with an NPDES permit in a formal hearing: (a)(1) If a request for a formal hearing is granted under 124.75 or 124.114 regarding the initial permit issued for a new source, a new discharger, or a recommencing discharger, or if a petition for review of the denial of a request for a formal hearing with respect to such a permit is timely filed with the Administrator under 124.91, the applicant shall be without a permit pending final Agency action under 124.91. (2) Whenever a source or facility subject to this paragraph or to paragraph (c)(7) of this section has received a final permit under 124.15 which is the subject of a hearing request under 124.74 or a formal hearing under 124.75, the Presiding Officer, on motion by the source or facility, may issue an order authorizing it to begin discharges (or in the case of RCRA permits, construction or operations) if it complies with all uncontested conditions of the final permit and all other appropriate conditions imposed by the Presiding Officer during the period until final agency action. The motion shall be granted if no party opposes it, or if the source or facility demonstrates that: (i) It is likely to receive a permit to discharge (or in the case of RCRA permits, to operate or construct) at that site; (ii) The environment will not be irreparably harmed if the source or facility is allowed to begin discharging (or in the case of RCRA, to begin operating or construction) in compliance with the conditions of the Presiding Officer's order pending final agency action; and (iii) Its discharge (or in the case of RCRA, its operation or construction) pending final agency action is in the public interest.  {Oh  (3) For RCRA only, no order under paragraph (a)(2) may authorize a facility to commence construction if any party has challenged a construction-related permit term or condition. (b) The Regional Administrator, at any time prior to the rendering of an initial decision in a formal hearing on a permit, may withdraw the permit and prepare a new draft permit under 124.6 addressing the portions so withdrawn. The new draft permit shall proceed through the same process of public comment and opportunity for a public hearing as would apply to any other draft permit subject to this part. Any portions of the permit which are not withdrawn and which are not stayed under this section shall remain in effect. (c)(1) If a request for a formal hearing is granted in whole or in part under 124.75 regarding a permit for an existing source, or if a petition for review of the denial of a request for a formal hearing with respect to that permit is timely filed with the Administrator under 124.91, the force and effect of the contested conditions of the final permit shall be stayed. The Regional Administrator shall notify, in accordance with 124.75, the discharger and all parties of the uncontested conditions of the final permit that are enforceable obligations of the discharger. (2) When effluent limitations are contested, but the underlying control technology is not, the notice shall identify the installation of the technology in accordance with the permit compliance schedules (if uncontested) as an uncontested, enforceable obligation of the permit. (3) When a combination of technologies is contested, but a portion of the combination is not contested, that portion shall be identified as uncontested if compatible with the combination of technologies proposed by the requester. (4) Uncontested conditions, if inseverable from a contested condition, shall be considered contested. (5) Uncontested conditions shall become enforceable 30 days after the date of notice under paragraph (c)(1) of this section granting the request. If, however, a request for a formal hearing on a condition was denied and the denial is appealed under 124.91, then that condition shall become enforceable upon the date of the notice of the Administrator's decision on the appeal if the denial is affirmed, or shall be stayed, in accordance with this section, if the Administrator reverses the denial and grants the evidentiary hearing. (6) Uncontested conditions shall include: (i) Preliminary design and engineering studies or other requirements necessary to achieve the final permit conditions which do not entail substantial expenditures; (ii) Permit conditions which will have to be met regardless of which party prevails at the evidentiary hearing; (iii) When the discharger proposed a less stringent level of treatment than that contained in the final permit, any permit conditions appropriate to meet the levels proposed by the discharger, if the measures required to attain that'0*(( less stringent level of treatment are consistent with the measures required to attain the limits proposed by any other party; and (iv) Construction activities, such as segregation of waste streams or installation of equipment, which would partially meet the final permit conditions and could also be used to achieve the discharger's proposed alternative conditions. (7) If for any offshore or coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig which has never received a finally effective permit to discharge at a ``site,'' but which is not a ``new discharger'' or a ``new source,'' the Regional Administrator finds that compliance with certain permit conditions may be necessary to avoid irreparable environmental harm during the administrative review, he may specify in the statement of basis or fact sheet that those conditions, even if contested, shall remain enforceable obligations of the discharger during administrative review unless otherwise modified by the Presiding Officer under paragraph (a)(2) of this section. (d) If at any time after a hearing is granted and after the Regional Administrator's notice under paragraph (c)(1) of this section it becomes clear that a permit requirement is no longer contested, any party may request the Presiding Officer to issue an order identifying the requirements as uncontested. The requirement identified in such order shall become enforceable 30 days after the issuance of the order. (e) When a formal hearing is granted under 124.75 on an application for a renewal of an existing permit, all provisions of the existing permit as well as uncontested provisions of the new permit, shall continue fully enforceable and effective until final agency action under 124.91. (See 122.6) Upon written request from the applicant, the Regional Administrator may delete requirements from the existing permit which unnecessarily duplicate uncontested provisions of the new permit. (f) When issuing a finally effective NPDES permit the conditions of which were the subject of a formal hearing under subpart E or F, the Regional Administrator shall extend the permit compliance schedule to the extent required by a stay under this section provided that no such extension shall be granted which would: (1) Result in the violation of an applicable statutory deadline; or (2) Cause the permit to expire more than 5 years after issuance under 124.15(a).  yOP  Note: Extensions of compliance schedules under 124.60(f)(2) will not automatically be granted for a period equal to the period the stay is in effect for an effluent limitation. For example, if both the Agency and the discharger agree that a certain treatment technology is required by the CWA where guidelines do not apply, but a hearing is granted to consider the effluent limitations which the technology will achieve, requirements regarding installation of the underlying technology will not be stayed during the hearing. Thus, unless the hearing extends beyond the final compliance date in the permit, it will not ordinarily be necessary to extend the compliance schedule. However, when application of an underlying technology is challenged, the stay for installation requirements relating to that technology would extend for the duration of the hearing. (g) For purposes of judicial review under CWA section 509(b), final agency action on a permit does not occur unless and until a party has exhausted its administrative remedies under subparts E and F and 124.91. Any party which neglects or fails to seek review under 124.91 thereby waives its opportunity to exhaust available agency remedies.  {O@ (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42  {O U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983]  yO#  124.61 Final environmental impact statement. No final NPDES permit for a new source shall be issued until at least 30 days after the date of issuance of a final environmental impact statement if one is required under 40 CFR 6.805. '0*((Ԍ yO ԙ 124.62 Decision on variances.  {O  (Applicable to State programs, see 123.25 (NPDES).)  {OZ  (a) The Director may grant or deny requests for the following variances (subject to EPA objection under 123.44 for State permits): (1) Extensions under CWA section 301(i) based on delay in completion of a publicly owned treatment works; (2) After consultation with the Regional Administrator, extensions under CWA section 301(k) based on the use of innovative technology; or (3) Variances under CWA section 316(a) for thermal pollution. (b) The State Director may deny, or forward to the Regional Administrator with a written concurrence, or submit to EPA without recommendation a completed request for: (1) A variance based on the economic capability of the applicant under CWA section 301(c); or (2) A variance based on water quality related effluent limitations under CWA section 302(b)(2). (c) The Regional Administrator may deny, forward, or submit to the EPA Office Director for Water Enforcement and Permits with a recommendation for approval, a request for a variance listed in paragraph (b) of this section that is forwarded by the State Director, or that is submitted to the Regional Administrator by the requester where EPA is the permitting authority. (d) The EPA Office Director for Water Enforcement and Permits may approve or deny any variance request submitted under paragraph (c) of this section. If the Office Director approves the variance, the Director may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under 124.64. (e) The State Director may deny or forward to the Administrator (or his delegate) with a written concurrence a completed request for: (1) A variance based on the presence of ``fundamentally different factors'' from those on which an effluent limitations guideline was based; (2) A variance based upon certain water quality factors under CWA section 301(g). (f) The Administrator (or his delegate) may grant or deny a request for a variance listed in paragraph (e) of this section that is forwarded by the State Director, or that is submitted to EPA by the requester where EPA is the permitting authority. If the Administrator (or his delegate) approves the variance, the State Director or Regional Administrator may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under 124.64. [48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 51 FR 16030, Apr. 30, 1986; 54 FR 256, 258, Jan. 4, 1989]  yO  124.63 Procedures for variances when EPA is the permitting authority. (a) In States where EPA is the permit issuing authority and a request for a variance is filed as required by 122.21, the request shall be processed as follows: (1)(i) If, at the time, that a request for a variance based on the presence of fundamentally different factors or on section 301(g) of the CWA is submitted, the Regional Administrator has received an application under 124.3 for issuance or renewal of that permit, but has not yet prepared a draft permit under 124.6 covering the discharge in question, the Administrator (or his delegate) shall give notice of a tentative decision on the request at the time the notice of the draft permit is prepared as specified in 124.10, unless this would significantly delay the processing of the permit. In that case the processing of the variance request may be separated from the permit in accordance with paragraph (a)(3) of this section, and the processing of the permit shall proceed without delay. (ii) If, at the time, that a request for a variance under sections 301(c) or 302(b)(2) of the CWA is submitted, the Regional Administrator has received an application under 124.3 for issuance or renewal of that permit, but has not yet prepared a draft permit under 124.6 covering the discharge in question, the Regional Administrator, after'0*(( obtaining any necessary concurrence of the EPA Deputy Assistant Administrator for Water Enforcement under 124.62, shall give notice of a tentative decision on the request at the time the notice of the draft permit is prepared as specified in 124.10, unless this would significantly delay the processing of the permit. In that case the processing of the variance request may be separated from the permit in accordance with paragraph (a)(3) of this section, and the processing of the permit shall proceed without delay. (2) If, at the time that a request for a variance is filed the Regional Administrator has given notice under 124.10 of a draft permit covering the discharge in question, but that permit has not yet become final, administrative proceedings concerning that permit may be stayed and the Regional Administrator shall prepare a new draft permit including a tentative decision on the request, and the fact sheet required by 124.8. However, if this will significantly delay the processing of the existing draft permit or the Regional Administrator, for other reasons, considers combining the variance request and the existing draft permit inadvisable, the request may be separated from the permit in accordance with paragraph (a)(3) of this section, and the administrative dispositon of the existing draft permit shall proceed without delay. (3) If the permit has become final and no application under 124.3 concerning it is pending or if the variance request has been separated from a draft permit as described in paragraphs (a) (1) and (2) of this section, the Regional Administrator may prepare a new draft permit and give notice of it under 124.10. This draft permit shall be accompanied by the fact sheet required by 124.8 except that the only matters considered shall relate to the requested variance. [48 FR 14264, Apr. 1, 1983, as amended at 51 FR 16030, Apr. 30, 1986]  yO0  124.64 Appeals of variances. (a) When a State issues a permit on which EPA has made a variance decision, separate appeals of the State permit and of the EPA variance decision are possible. If the owner or operator is challenging the same issues in both proceedings, the Regional Administrator will decide, in consultation with State officials, which case will be heard first. (b) Variance decisions made by EPA may be appealed under either subpart E or F, provided the requirements of the applicable subpart are met. However, whenever the basic permit decision is eligible only for an evidentiary hearing under subpart E while the variance decision is eligible only for a panel hearing under subpart F, the issues relating to both the basic permit decision and the variance decision shall be considered in the subpart E proceeding. No subpart F hearing may be held if a subpart E hearing would be held in addition. See 124.111(b).  {O  (c) Stays for section 301(g) variances. If a request for an evidentiary hearing is granted on a variance requested under CWA section 301(g), or if a petition for review of the denial of a request for the hearing is filed under 124.91, any otherwise applicable standards and limitations under CWA section 301 shall not be stayed unless: (1) In the judgment of the Regional Administrator, the stay or the variance sought will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumulation, persistency in the environment, acute toxicity, chronic toxicity, or synergistic propensities; and (2) In the judgment of the Regional Administrator, there is a substantial likelihood that the discharger will succeed on the merits of its appeal; and (3) The discharger files a bond or other appropriate security which is required by the Regional Administrator to assure timely compliance with the requirements from which a variance is sought in the event that the appeal is unsuccessful. (d) Stays for variances other than section 301(g) are governed by 124.60.  yO#  124.65 [Reserved] J&0*((  yO  124.66 Special procedures for decisions on thermal variances under section 316(a). (a) Except as provided in 124.65, the only issues connected with issuance of a particular permit on which EPA will make a final Agency decision before the final permit is issued under 124.15 and 124.60 are whether alternative effluent limitations would be justified under CWA section 316(a) and whether cooling water intake structures will use the best available technology under section 316(b). Permit applicants who wish an early decision on these issues should request it and furnish supporting reasons at the time their permit applications are filed under 122.21. The Regional Administrator will then decide whether or not to make an early decision. If it is granted, both the early decision on CWA section 316 (a) or (b) issues and the grant of the balance of the permit shall be considered permit issuance under these regulations, and shall be subject to the same requirements of public notice and comment and the same opportunity for an evidentiary or panel hearing under subpart E or F. (b) If the Regional Administrator, on review of the administrative record, determines that the information necessary to decide whether or not the CWA section 316(a) issue is not likely to be available in time for a decision on permit issuance, the Regional Administrator may issue a permit under 124.15 for a term up to 5 years. This permit shall require achievement of the effluent limitations initially proposed for the thermal component of the discharge no later than the date otherwise required by law. However, the permit shall also afford the permittee an opportunity to file a demonstration under CWA section 316(a) after conducting such studies as are required under 40 CFR part 125, subpart H. A new discharger may not exceed the thermal effluent limitation which is initially proposed unless and until its CWA section 316(a) variance request is finally approved. (c) Any proceeding held under paragraph (a) of this section shall be publicly noticed as required by 124.10 and shall be conducted at a time allowing the permittee to take necessary measures to meet the final compliance date in the event its request for modification of thermal limits is denied. (d) Whenever the Regional Administrator defers the decision under CWA section 316(a), any decision under section 316(b) may be deferred.  yOP + Subpart E--Evidentiary Hearings for EPA-Issued NPDES Permits and EPA-Terminated RCRA Permits *   yO  124.71 Applicability. (a) The regulations in this subpart govern all formal hearings conducted by EPA under CWA sections 402 and 405(f), except those conducted under subpart F. They also govern all evidentiary hearings conducted under RCRA section 3008 in connection with the termination of a RCRA permit. This includes termination of interim status for failure to furnish information needed to make a final decision. A formal hearing is available to challenge any NPDES permit issued under 124.15 except for a general permit. Persons affected by a general permit may not challenge the conditions of a general permit as of right in further agency proceedings. They may instead either challenge the general permit in court, or apply for an individual NPDES permit under 122.21 as authorized in 122.28 and then request a formal hearing on the issuance or denial of an individual permit. (The Regional Administrator also has the discretion to use the procedures of subpart F for general permits. See 124.111). (b) In certain cases, evidentiary hearings under this subpart may also be held on the conditions of UIC permits, or of RCRA permits which are being issued, modified, or revoked and reissued, rather than terminated or suspended. This will occur when the conditions of the UIC or RCRA permit in question are closely linked with the conditions of an NPDES permit as to which an evidentiary hearing has been granted. See 124.74(b)(2). Any interested person may challenge the Regional Administrator's initial new source determination by requesting an evidentiary hearing under this part. See 122.29. (c) PSD permits may never be subject to an evidentiary hearing under this subpart. Section 124.74(b)(2)(iv) provides only for consolidation of PSD permits with other permits subject to a panel hearing under subpart F. [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786, May 2, 1989] '0*((Ԍ yO  124.72 Definitions. For the purpose of this subpart, the following definitions are applicable:  {OX  Environmental Appeals Board shall mean the Board within the Agency described in 1.25 of this title. The Administrator delegates authority to the Environmental Appeals Board to issue final decisions in NPDES appeals filed under this subpart. An appeal directed to the Administrator, rather than to the Environmental Appeals Board, will not be considered. This delegation does not preclude the Environmental Appeals Board from referring an appeal or a motion to the Administrator when the Environmental Appeals Board, in its discretion, deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Environmental Appeals Board, all parties shall be so notified and the rules in this subpart referring to the Environmental Appeals Board shall be interpreted as referring to the Administrator.  {O  Hearing Clerk means The Hearing Clerk, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460.  {O,  Party means the EPA trial staff under 124.78 and any person whose request for a hearing under 124.74 or whose request to be admitted as a party or to intervene under 124.79 or 124.117 has been granted.  {O  Presiding Officer for the purposes of this subpart means an Administrative Law Judge appointed under 5 U.S.C. 3105 and designated to preside at the hearing. Under subpart F other persons may also serve as hearing officers. See 124.119.  {O  Regional Hearing Clerk means an employee of the Agency designated by a Regional Administrator to establish a repository for all books, records, documents, and other materials relating to hearings under this subpart. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5335, Feb. 13, 1992]  yO  124.73 Filing and submission of documents. (a) All submissions authorized or required to be filed with the Agency under this subpart shall be filed with the Regional Hearing Clerk, unless otherwise provided by regulation. Submissions shall be considered filed on the date on which they are mailed or delivered in person to the Regional Hearing Clerk. (b) All submissions shall be signed by the person making the submission, or by an attorney or other authorized agent or representative. (c)(1) All data and information referred to or in any way relied upon in any submission shall be included in full and may not be incorporated by reference, unless previously submitted as part of the administrative record in the same proceeding. This requirement does not apply to State or Federal statutes and regulations, judicial decisions published in a national reporter system, officially issued EPA documents of general applicability, and any other generally available reference material which may be incorporated by reference. Any party incorporating materials by reference shall provide copies upon request by the Regional Administrator or the Presiding Officer. (2) If any part of the material submitted is in a foreign language, it shall be accompanied by an English translation verified under oath to be complete and accurate, together with the name, address, and a brief statement of the qualifications of the person making the translation. Translations of literature or other material in a foreign language shall be accompanied by copies of the original publication. (3) Where relevant data or information is contained in a document also containing irrelevant matter, either the irrelevant matter shall be deleted or the relevant portions shall be indicated. (4) Failure to comply with the requirements of this section or any other requirement in this subpart may result in the noncomplying portions of the submission being excluded from consideration. If the Regional Administrator  {O2# or the Presiding Officer, on motion by any party or sua sponte, determines that a submission fails to meet any requirement of this subpart, the Regional Administrator or Presiding Officer shall direct the Regional Hearing Clerk to return the submission, together with a reference to the applicable regulations. A party whose materials have been rejected has 14 days to correct the errors and resubmit, unless the Regional Administrator or the Presiding Officer finds good cause to allow a longer time. ' 0*(( (d) The filing of a submission shall not mean or imply that it in fact meets all applicable requirements or that it contains reasonable grounds for the action requested or that the action requested is in accordance with law. (e) The original of all statements and documents containing factual material, data, or other information shall be signed in ink and shall state the name, address, and the representative capacity of the person making the submission.  yO  124.74 Requests for evidentiary hearing. (a) Within 30 days following the service of notice of the Regional Administrator's final permit decision under 124.15, any interested person may submit a request to the Regional Administrator under paragraph (b) of this section for an evidentiary hearing to reconsider or contest that decision. If such a request is submitted by a person other than the permittee, the person shall simultaneously serve a copy of the request on the permittee. (b)(1) In accordance with 124.76, such requests shall state each legal or factual question alleged to be at issue, and their relevance to the permit decision, together with a designation of the specific factual areas to be adjudicated and the hearing time estimated to be necessary for adjudication. Information supporting the request or other written documents relied upon to support the request shall be submitted as required by 124.73 unless they are already part of the administrative record required by 124.18.  yO  Note: This paragraph allows the submission of requests for evidentiary hearings even though both legal and factual issues may be raised, or only legal issues may be raised. In the latter case, because no factual issues were raised, the Regional Administrator would be required to deny the request. However, on review of the denial the Environmental Appeals Board is authorized by 124.91(a)(1) to review policy or legal conclusions of the Regional Administrator. EPA is requiring an appeal to the Environmental Appeals Board even of purely legal issues involved in a permit decision to ensure that the Environmental Appeals Board will have an opportunity to review any permit before it will be final and subject to judicial review. (2) Persons requesting an evidentiary hearing on an NPDES permit under this section may also request an evidentiary hearing on a RCRA or UIC permit, PSD permits may never be made part of an evidentiary hearing under subpart E. This request is subject to all the requirements of paragraph (b)(1) of this section and in addition will be granted only if: (i) Processing of the RCRA or UIC permit at issue was consolidated with the processing of the NPDES permit as provided in 124.4; (ii) The standards for granting a hearing on the NPDES permit are met; (iii) The resolution of the NPDES permit issues is likely to make necessary or appropriate modification of the RCRA or UIC permit; and (iv) If a PSD permit is involved, a permittee who is eligible for an evidentiary hearing under subpart E on his or her NPDES permit requests that the formal hearing be conducted under the procedures of subpart F and the Regional Administrator finds that consolidation is unlikly to delay final permit issuance beyond the PSD one-year statutory deadline. (c) These requests shall also contain: (1) The name, mailing address, and telephone number of the person making such request; (2) A clear and concise factual statement of the nature and scope of the interest of the requester; (3) The names and addresses of all persons whom the requester represents; and (4) A statement by the requester that, upon motion of any party granted by the Presiding Officer, or upon order  {O`" of the Presiding Officer sua sponte without cost or expense to any other party, the requester shall make available to appear and testify, the following: (i) The requester; (ii) All persons represented by the requester; and (iii) All officers, directors, employees, consultants, and agents of the requester and the persons represented by the requester. '!0*(( (5) Specific references to the contested permit conditions, as well as suggested revised or alternative permit conditions (including permit denials) which, in the judgment of the requester, would be required to implement the purposes and policies of the CWA. (6) In the case of challenges to the application of control or treatment technologies identified in the statement of basis or fact sheet, identification of the basis for the objection, and the alternative technologies or combination of technologies which the requester believes are necessary to meet the requirements of the CWA. (7) Identification of the permit obligations that are contested or are inseverable from contested conditions and should be stayed if the request is granted by reference to the particular contested conditions warranting the stay. (8) Hearing requests also may ask that a formal hearing be held under the procedures set forth in subpart F. An applicant may make such a request even if the proceeding does not constitute ``initial licensing'' as defined in 124.111. (d) If the Regional Administrator grants an evidentiary hearing request, in whole or in part, the Regional Administrator shall identify the permit conditions which have been contested by the requester and for which the evidentiary hearing has been granted. Permit conditions which are not contested or for which the Regional Administrator has denied the hearing request shall not be affected by, or considered at, the evidentiary hearing. The Regional Administrator shall specify these conditions in writing in accordance with 124.60(c). (e) The Regional Administrator must grant or deny all requests for an evidentiary hearing on a particular permit. All requests that are granted for a particular permit shall be combined in a single evidentiary hearing. (f) The Regional Administrator (upon notice to all persons who have already submitted hearing requests) may extend the time allowed for submitting hearing requests under this section for good cause. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]  yO  124.75 Decision on request for a hearing. (a)(1) Within 30 days following the expiration of the time allowed by 124.74 for submitting an evidentiary hearing request, the Regional Administrator shall decide the extent to which, if at all, the request shall be granted, provided that the request conforms to the requirements of 124.74, and sets forth material issues of fact relevant to the issuance of the permit. (2) When an NPDES permit for which a hearing request has been granted constitutes ``initial licensing'' under 124.111, the Regional Administrator may elect to hold a formal hearing under the procedures of subpart F rather than under the procedures of this subpart even if no person has requested that subpart F be applied. If the Regional Administrator makes such a decision, he or she shall issue a notice of hearing under 124.116. All subsequent proceedings shall then be governed by 124.117 through 124.121, except that any reference to a draft permit shall mean the final permit. (3) Whenever the Regional Administrator grants a request made under 124.74(c)(8) for a formal hearing under subpart F on an NPDES permit that does not constitute an initial license under 124.111, the Regional Administrator shall issue a notice of hearing under 124.116 including a statement that the permit will be processed under the procedures of subpart F unless a written objection is received within 30 days. If no valid objection is received, the application shall be processed in accordance with 124.117 through 124.121, except that any reference to a draft permit shall mean the final permit. If a valid objection is received, this subpart shall be applied instead. (b) If a request for a hearing is denied in whole or in part, the Regional Administrator shall briefly state the reasons. That denial is subject to review by the Environmental Appeals Board under 124.91. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992] %"0*((  yO  124.76 Obligation to submit evidence and raise issues before a final permit is issued. In any case where the Regional Administrator elected to apply the requirements of 124.14(a), no evidence shall be submitted by any party to a hearing under this Subpart that was not submitted to the administrative record required by 124.18 as part of the preparation of and comment on a draft permit, unless good cause is shown for the failure to submit it. No issues shall be raised by any party that were not submitted to the administrative record required by 124.18 as part of the preparation of and comment on a draft permit unless good cause is shown for the failure to submit them. Good cause includes the case where the party seeking to raise the new issues or introduce new information shows that it could not reasonably have ascertained the issues or made the information available within the time required by 124.15; or that it could not have reasonably anticipated the relevance or materiality of the information sought to be introduced. Good cause exists for the introduction of data available on operation authorized under 124.60(a)(2). [49 FR 38051, Sept. 26, 1984]  yO  124.77 Notice of hearing. Public notice of the grant of an evidentiary hearing regarding a permit shall be given as provided in 124.57(b) and by mailing a copy to all persons who commented on the draft permit, testified at the public hearing, or submitted a request for a hearing. Before the issuance of the notice, the Regional Administrator shall designate the Agency trial staff and the members of the decisional body (as defined in 124.78).  yO  124.78 Ex parte communications. (a) For purposes of this section, the following definitions shall apply:  {O  (1) Agency trial staff means those Agency employees, whether temporary or permanent, who have been designated by the Agency under 124.77 or 124.116 as available to investigate, litigate, and present the evidence, arguments, and position of the Agency in the evidentiary hearing or nonadversary panel hearing. Any EPA employee, consultant, or contractor who is called as a witness by EPA trial staff, or who assisted in the formulation of the draft permit which is the subject of the hearing, shall be designated as a member of the Agency trial staff;  {O  (2) Decisional body means any Agency employee who is or may reasonably be expected to be involved in the decisional process of the proceeding including the Administrator, the members of the Environmental Appeals Board, the Presiding Officer, the Regional Administrator (if he or she does not designate himself or herself as a member of the Agency trial staff), and any of their staff participating in the decisional process. In the case of a nonadversary panel hearing, the decisional body shall also include the panel members, whether or not permanently employed by the Agency;  {O  (3) Ex parte communication means any communication, written or oral, relating to the merits of the proceeding between the decisional body and an interested person outside the Agency or the Agency trial staff which was not  {OF originally filed or stated in the administrative record or in the hearing. Ex parte communications do not include: (i) Communications between Agency employees other than between the Agency trial staff and the members of the decisional body; (ii) Discussions between the decisional body and either: (A) Interested persons outside the Agency, or  {O0#  (B) The Agency trial staff, if all parties have received prior written notice of the proposed communications and have been given the opportunity to be present and participate therein.  {O$  (4) Interested person outside the Agency includes the permit applicant, any person who filed written comments in the proceeding, any person who requested the hearing, any person who requested to participate or intervene in the hearing, any participant in the hearing and any other interested person not employed by the Agency at the time of the communications, and any attorney of record for those persons.'#0*((Ԍ (b)(1) No interested person outside the Agency or member of the Agency trial staff shall make or knowingly  {O cause to be made to any members of the decisional body, an ex parte communication on the merits of the proceedings. (2) No member of the decisional body shall make or knowingly cause to be made to any interested person outside  {O" the Agency or member of the Agency trial staff, an ex parte communication on the merits of the proceedings. (3) A member of the decisional body who receives or who makes or who knowingly causes to be made a communication prohibited by this subsection shall file with the Regional Hearing Clerk all written communications or memoranda stating the substance of all oral communications together with all written responses and memoranda stating the substance of all oral responses.  {O   (c) Whenever any member of the decisionmaking body receives an ex parte communication knowingly made or knowingly caused to be made by a party or representative of a party in violation of this section, the person presiding at the stage of the hearing then in progress may, to the extent consistent with justice and the policy of the CWA, require the party to show cause why its claim or interest in the proceedings should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation. (d) The prohibitions of this section begin to apply upon issuance of the notice of the grant of a hearing under 124.77 or 124.116. This prohibition terminates at the date of final agency action. [48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052, Sept. 26, 1984; 57 FR 5336, Feb. 13, 1992]  yO  124.79 Additional parties and issues. (a) Any person may submit a request to be admitted as a party within 15 days after the date of mailing, publication, or posting of notice of the grant of an evidentiary hearing, whichever occurs last. The Presiding Officer shall grant requests that meet the requirements of 124.74 and 124.76. (b) After the expiration of the time prescribed in paragraph (a) of this section any person may file a motion for leave to intervene as a party. This motion must meet the requirements of 124.74 and 124.76 and set forth the grounds for the proposed intervention. No factual or legal issues, besides those raised by timely hearing requests, may be proposed except for good cause. A motion for leave to intervene must also contain a verified statement showing good cause for the failure to file a timely request to be admitted as a party. The Presiding Officer shall grant the motion only upon an express finding on the record that: (1) Extraordinary circumstances justify granting the motion; (2) The intervener has consented to be bound by: (i) Prior written agreements and stipulations by and between the existing parties; and (ii) All orders previously entered in the proceedings; and (3) Intervention will not cause undue delay or prejudice the rights of the existing parties.  yO  124.80 Filing and service. (a) An original and one (1) copy of all written submissions relating to an evidentiary hearing filed after the notice is published shall be filed with the Regional Hearing Clerk. (b) The party filing any submission shall also serve a copy of each submission upon the Presiding Officer and each party of record. Service shall be by mail or personal delivery. (c) Every submission shall be accompanied by an acknowledgment of service by the person served or a certificate of service citing the date, place, time, and manner of service and the names of the persons served. (d) The Regional Hearing Clerk shall maintain and furnish a list containing the name, service address, and telephone number of all parties and their attorneys or duly authorized representatives to any person upon request. '$0*((  yO 124.81 Assignment of Administrative Law Judge. No later than the date of mailing, publication, or posting of the notice of a grant of an evidentiary hearing, whichever occurs last, the Regional Administrator shall refer the proceeding to the Chief Administrative Law Judge who shall assign an Administrative Law Judge to serve as Presiding Officer for the hearing.  yOx  124.82 Consolidation and severance. (a) The Administrator, Regional Administrator, or Presiding Officer has the discretion to consolidate, in whole or in part, two or more proceedings to be held under this subpart, whenever it appears that a joint hearing on any or all of the matters in issue would expedite or simplify consideration of the issues and that no party would be prejudiced thereby. Consolidation shall not affect the right of any party to raise issues that might have been raised had there been no consolidation. (b) If the Presiding Officer determines consolidation is not conducive to an expeditious, full, and fair hearing, any party or issues may be severed and heard in a separate proceeding.  yO  124.83 Prehearing conferences.  {O  (a) The Presiding Officer, sua sponte, or at the request of any party, may direct the parties or their attorneys or duly authorized representatives to appear at a specified time and place for one or more conferences before or during a hearing, or to submit written proposals or correspond for the purpose of considering any of the matters set forth in paragraph (c) of this section. (b) The Presiding Officer shall allow a reasonable period before the hearing begins for the orderly completion of all prehearing procedures and for the submission and disposition of all prehearing motions. Where the circumstances warrant, the Presiding Officer may call a prehearing conference to inquire into the use of available procedures contemplated by the parties and the time required for their completion, to establish a schedule for their completion, and to set a tentative date for beginning the hearing. (c) In conferences held, or in suggestions submitted, under paragraph (a) of this section, the following matter may be considered: (1) Simplification, clarification, amplification, or limitation of the issues. (2) Admission of facts and of the genuineness of documents, and stipulations of facts. (3) Objections to the introduction into evidence at the hearing of any written testimony, documents, papers, exhibits, or other submissions proposed by a party, except that the administrative record required by 124.19 shall be received in evidence subject to the provisions of 124.85(d)(2). At any time before the end of the hearing any party may make, and the Presiding Officer shall consider and rule upon, motions to strike testimony or other evidence other than the administrative record on the grounds of relevance, competency, or materiality. (4) Matters subject to official notice may be taken. (5) Scheduling as many of the following as are deemed necessary and proper by the Presiding Officer: (i) Submission of narrative statements of position on each factual issue in controversy; (ii) Submission of written testimony and documentary evidence (e.g., affidavits, data, studies, reports, and any other type of written material) in support of those statements; or (iii) Requests by any party for the production of additional documentation, data, or other information relevant and material to the facts in issue. (6) Grouping participants with substantially similar interests to eliminate redundant evidence, motions, and objections. (7) Such other matters that may expedite the hearing or aid in the disposition of the matter. (d) At a prehearing conference or at some other reasonable time set by the Presiding Officer, each party shall make available to all other parties the names of the expert and other witnesses it expects to call. At its discretion or at the request of the Presiding Officer, a party may include a brief narrative summary of any witness's anticipated'%0*(( testimony. Copies of any written testimony, documents, papers, exhibits, or materials which a party expects to introduce into evidence, and the administrative record required by 124.18 shall be marked for identification as ordered by the Presiding Officer. Witnesses, proposed written testimony, and other evidence may be added or amended upon order of the Presiding Officer for good cause shown. Agency employees and consultants shall be made available as witnesses by the Agency to the same extent that production of such witnesses is required of other parties under 124.74(c)(4). (See also 124.85(b)(16).) (e) The Presiding Officer shall prepare a written prehearing order reciting the actions taken at each prehearing conference and setting forth the schedule for the hearing, unless a transcript has been taken and accurately reflects these matters. The order shall include a written statement of the areas of factual agreement and disagreement and of the methods and procedures to be used in developing the evidence and the respective duties of the parties in connection therewith. This order shall control the subsequent course of the hearing unless modified by the Presiding Officer for good cause shown.  yO  124.84 Summary determination. (a) Any party to an evidentiary hearing may move with or without supporting affidavits and briefs for a summary determination in its favor upon any of the issues being adjudicated on the basis that there is no genuine issue of material fact for determination. This motion shall be filed at least 45 days before the date set for the hearing, except that upon good cause shown the motion may be filed at any time before the close of the hearing. (b) Any other party may, within 30 days after service of the motion, file and serve a response to it or a countermotion for summary determination. When a motion for summary determination is made and supported, a party opposing the motion may not rest upon mere allegations or denials but must show, by affidavit or by other materials subject to consideration by the Presiding Officer, that there is a genuine issue of material fact for determination at the hearing. (c) Affidavits shall be made on personal knowledge, shall set forth facts that would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. (d) The Presiding Officer may set the matter for oral argument and call for the submission of proposed findings, conclusions, briefs, or memoranda of law. The Presiding Officer shall rule on the motion not more than 30 days after the date responses to the motion are filed under paragraph (b) of this section. (e) If all factual issues are decided by summary determination, no hearing will be held and the Presiding Officer shall prepare an initial decision under 124.89. If summary determination is denied or if partial summary determination is granted, the Presiding Officer shall issue a memorandum opinion and order, interlocutory in character, and the hearing will proceed on the remaining issues. Appeals from interlocutory rulings are governed by 124.90. (f) Should it appear from the affidavits of a party opposing a motion for summary determination that he or she cannot for reasons stated present, by affidavit or otherwise, facts essential to justify his or her opposition, the Presiding Officer may deny the motion or order a continuance to allow additional affidavits or other information to be obtained or may make such other order as is just and proper.  yO  124.85 Hearing procedure. (a)(1) The permit applicant always bears the burden of persuading the Agency that a permit authorizing pollutants to be discharged should be issued and not denied. This burden does not shift.  yO#  Note: In many cases the documents contained in the administrative record, in particular the fact sheet or statement of basis and the response to comments, should adequately discharge this burden. (2) The Agency has the burden of going forward to present an affirmative case in support of any challenged condition of a final permit. (3) Any hearing participant who, by raising material issues of fact, contends:'&0*((Ԍ (i) That particular conditions or requirements in the permit are improper or invalid, and who desires either: (A) The inclusion of new or different conditions or requirements; or (B) The deletion of those conditions or requirements; or (ii) That the denial or issuance of a permit is otherwise improper or invalid, shall have the burden of going forward to present an affirmative case at the conclusion of the Agency case on the challenged requirement. (b) The Presiding Officer shall conduct a fair and impartial hearing, take action to avoid unnecessary delay in the disposition of the proceedings, and maintain order. For these purposes, the Presiding Officer may: (1) Arrange and issue notice of the date, time, and place of hearings and conferences; (2) Establish the methods and procedures to be used in the development of the evidence; (3) Prepare, after considering the views of the participants, written statements of areas of factual disagreement among the participants; (4) Hold conferences to settle, simplify, determine, or strike any of the issues in a hearing, or to consider other matters that may facilitate the expeditious disposition of the hearing; (5) Administer oaths and affirmations; (6) Regulate the course of the hearing and govern the conduct of participants; (7) Examine witnesses; (8) Identify and refer issues for interlocutory decision under 124.90; (9) Rule on, admit, exclude, or limit evidence; (10) Establish the time for filing motions, testimony, and other written evidence, briefs, findings, and other submissions; (11) Rule on motions and other procedural matters pending before him, including but not limited to motions for summary determination in accordance with 124.84; (12) Order that the hearing be conducted in stages whenever the number of parties is large or the issues are numerous and complex; (13) Take any action not inconsistent with the provisions of this subpart for the maintenance of order at the hearing and for the expeditious, fair, and impartial conduct of the proceeding; (14) Provide for the testimony of opposing witnesses to be heard simultaneously or for such witnesses to meet outside the hearing to resolve or isolate issues or conflicts; (15) Order that trade secrets be treated as confidential business information in accordance with 122.7 (NPDES) and 270.12 (RCRA) and 40 CFR part 2; and (16) Allow such cross-examination as may be required for a full and true disclosure of the facts. No cross-examination shall be allowed on questions of policy except to the extent required to disclose the factual basis for permit requirements, or on questions of law, or regarding matters (such as the validity of effluent limitations guidelines) that are not subject to challenge in an evidentiary hearing. No Agency witnesses shall be required to testify or be made available for cross-examination on such matters. In deciding whether or not to allow cross-examination, the Presiding Officer shall consider the likelihood of clarifying or resolving a disputed issue of material fact compared to other available methods. The party seeking cross-examination has the burden of demonstrating that this standard has been met. (c) All direct and rebuttal evidence at an evidentiary hearing shall be submitted in written form, unless, upon motion and good cause shown, the Presiding Officer determines that oral presentation of the evidence on any particular fact will materially assist in the efficient identification and clarification of the issues. Written testimony shall be prepared in narrative form. (d)(1) The Presiding Officer shall admit all relevant, competent, and material evidence, except evidence that is unduly repetitious. Evidence may be received at any hearing even though inadmissible under the rules of evidence applicable to judicial proceedings. The weight to be given evidence shall be determined by its reliability and probative value. (2) The administrative record required by 124.18 shall be admitted and received in evidence. Upon motion by any party the Presiding Officer may direct that a witness be provided to sponsor a portion or portions of the administrative record. The Presiding Officer, upon finding that the standards in 124.85(b)(3) have been met, shall direct the appropriate party to produce the witness for cross-examination. If a sponsoring witness cannot be provided, the Presiding Officer may reduce the weight accorded the appropriate portion of the record. ''0*((Ԍ yO  Note: Receiving the administrative record into evidence automatically serves several purposes: (1) It documents the prior course of the proceedings; (2) it provides a record of the views of affected persons for consideration by he agency decisionmaker; and (3) it provides factual material for use by the decisionmaker. (3) Whenever any evidence or testimony is excluded by the Presiding Officer as inadmissible, all such evidence or testimony existing in written form shall remain a part of the record as an offer of proof. The party seeking the admission of oral testimony may make an offer of proof, by means of a brief statement on the record describing the testimony excluded. (4) When two or more parties have substantially similar interests and positions, the Presiding Officer may limit the number of attorneys or other party representatives who will be permitted to cross-examine and to make and argue motions and objections on behalf of those parties. Attorneys may, however, engage in cross-examination relevant to matters not adequately covered by previous cross-examination. (5) Rulings of the Presiding Officer on the admissibility of evidence or testimony, the propriety of cross-examination, and other procedural matters shall appear in the record and shall control further proceedings, unless reversed as a result of an interlocutory appeal taken under 124.90. (6) All objections shall be made promptly or be deemed waived. Parties shall be presumed to have taken exception to an adverse ruling. No objection shall be deemed waived by further participation in the hearing.  {OH  (e) Admission of evidence on environmental impacts. If a hearing is granted under this subpart for a new source subject to NEPA, the Presiding Officer may admit evidence relevant to any environmental impacts of the permitted facility if the evidence would be relevant to the Agency's obligation under 122.29(c)(3). If the source holds a final EPA-issued RCRA, PSD, or UIC permit, or an ocean dumping permit under the Marine Protection, Research, and Sanctuaries Act (MPRSA), no such evidence shall be admitted nor shall cross-examination be allowed relating to: (1) Effects on air quality, (2) effects attributable to underground injection or hazardous waste management practices, or (3) effects of ocean dumping subject to the MPRSA, which were considered or could have been considered in the PSD, RCRA, UIC, or MPRSA permit issuance proceedings. However, the presiding officer may admit without cross-examination or any supporting witness relevant portions of the record of PSD, RCRA, UIC, or MPRSA permit issuance proceedings. [48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052, Sept. 26, 1984]  yO:  124.86 Motions. (a) Any party may file a motion (including a motion to dismiss a particular claim on a contested issue) with the Presiding Officer on any matter relating to the proceeding. All motions shall be in writing and served as provided in 124.80 except those made on the record during an oral hearing before the Presiding Officer. (b) Within 10 days after service of any written motion, any part to the proceeding may file a response to the motion. The time for response may be shortened to 3 days or extended for an additional 10 days by the Presiding Officer for good cause shown. (c) Notwithstanding 122.4, any party may file with the Presiding Officer a motion seeking to apply to the permit any regulatory or statutory provision issued or made available after the issuance of the permit under 124.15. The Presiding Officer shall grant any motion to apply a new statutory provision unless he or she finds it contrary to legislative intent. The Presiding Officer may grant a motion to apply a new regulatory requirement when appropriate to carry out the purpose of CWA, and when no party would be unduly prejudiced thereby.  yO#  124.87 Record of hearings. (a) All orders issued by the Presiding Officer, transcripts of oral hearings or arguments, written statements of position, written direct and rebuttal testimony, and any other data, studies, reports, documentation, information and other written material of any kind submitted in the proceeding shall be a part of the hearing record and shall be'(0*(( available to the public except as provided in 122.7 (NPDES) and 270.12 (RCRA), in the Office of the Regional Hearing Clerk, as soon as it is received in that office. (b) Evidentiary hearings shall be either stenographically reported verbatim or tape recorded, and thereupon transcribed. After the hearing, the reporter shall certify and file with the Regional Hearing Clerk: (1) The original of the transcript, and (2) The exhibits received or offered into evidence at the hearing. (c) The Regional Hearing Clerk shall promptly notify each of the parties of the filing of the certified transcript of proceedings. Any party who desires a copy of the transcript of the hearing may obtain a copy of the hearing transcript from the Regional Hearing Clerk upon payment of costs. (d) The Presiding Officer shall allow witnesses, parties, and their counsel an opportunity to submit such written proposed corrections of the transcript of any oral testimony taken at the hearing, pointing out errors that may have been made in transcribing the testimony, as are required to make the transcript conform to the testimony. Except in unusual cases, no more than 30 days shall be allowed for submitting such corrections from the day a complete transcript of the hearing becomes available.  yO  124.88 Proposed findings of fact and conclusions; brief. Within 45 days after the certified transcript is filed, any party may file with the Regional Hearing Clerk proposed findings of fact and conclusions of law and a brief in support thereof. Briefs shall contain appropriate references to the record. A copy of these findings, conclusions, and brief shall be served upon all the other parties and the Presiding Officer. The Presiding Officer, for good cause shown, may extend the time for filing the proposed findings and conclusions and/or the brief. The Presiding Officer may allow reply briefs.  yO  124.89 Decisions. (a) The Presiding Officer shall review and evaluate the record, including the proposed findings and conclusions, any briefs filed by the parties, and any interlocutory decisions under 124.90 and shall issue and file his initial decision with the Regional Hearing Clerk. The Regional Hearing Clerk shall immediately serve copies of the initial decision upon all parties (or their counsel of record) and the Administrator. (b) The initial decision of the Presiding Officer shall automatically become the final decision 30 days after its service unless within that time: (1) A party files a petition for review by the Environmental Appeals Board pursuant to 124.91; or  {O  (2) The Environmental Appeals Board sua sponte files a notice that it will review the decision pursuant to 124.91. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]  yOB  124.90 Interlocutory appeal. (a) Except as provided in this section, appeals to the Environmental Appeals Board may be taken only under 124.91. Appeals from orders or rulings may be taken under this section only if the Presiding Officer, upon motion of a party, certifies those orders or rulings to the Environmental Appeals Board for appeal on the record. Requests to the Presiding Officer for certification must be filed in writing within 10 days of service of notice of the order, ruling, or decision and shall state briefly the grounds relied on. (b) The Presiding Officer may certify an order or ruling for appeal to the Environmental Appeals Board if: (1) The order or ruling involves an important question on which there is substantial ground for difference of opinion, and ')0*((  {O  (2) Either: (i) An immediate appeal of the order or ruling will materially advance the ultimate completion of the proceeding; or (ii) A review after the final order is issued will be inadequate or ineffective. (c) If the Environmental Appeals Board decides that certification was improperly granted, it shall decline to hear the appeal. The Environmental Appeals Board shall accept or decline all interlocutory appeals within 30 days of their submission; if the Environmental Appeals Board takes no action within that time, the appeal shall be automatically dismissed. When the Presiding Officer declines to certify an order or ruling to the Environmental Appeals Board for an interlocutory appeal, it may be reviewed by the Environmental Appeals Board only upon appeal from the initial decision of the Presiding Officer, except when the Environmental Appeals Board determines, upon motion of a party and in exceptional circumstances, that to delay review would not be in the public interest. Such motion shall be made within 5 days after receipt of notification that the Presiding Officer has refused to certify an order or ruling for interlocutory appeal to the Environmental Appeals Board. Ordinarily, the interlocutory appeal will be decided on the basis of the submissions made to the Presiding Officer. The Environmental Appeals Board may, however, allow briefs and oral argument. (d) In exceptional circumstances, the Presiding Officer may stay the proceeding pending a decision by the Environmental Appeals Board upon an order or ruling certified by the Presiding Officer for an interlocutory appeal, or upon the denial of such certification by the Presiding Officer. (e) The failure to request an interlocutory appeal shall not prevent taking exception to an order or ruling in an appeal under 124.91. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]  yO  124.91 Appeal to the Administrator. (a)(1) Within 30 days after service of an initial decision, or a denial in whole or in part of a request for an evidentiary hearing, any party or requester, as the case may be, may appeal any matter set forth in the initial decision or denial, or any adverse order or ruling to which the party objected during the hearing, by filing with the Environmental Appeals Board notice of appeal and petition for review. The petition shall include a statement of the supporting reasons and, when appropriate, a showing that the initial decision contains: (i) A finding of fact or conclusion of law which is clearly erroneous, or (ii) An exercise of discretion or policy which is important and which the Environmental Appeals Board should review. (2) Within 15 days after service of a petition for review under paragraph (c)(1) of this section, any other party to the proceeding may file a responsive petition. (3) Policy decisions made or legal conclusions drawn in the course of denying a request for an evidentiary hearing may be reviewed and changed by the Environmental Appeals Board in an appeal under this section. (b) Within 30 days of an initial decision or denial of a request for an evidentiary hearing, the Environmental  {O Appeals Board may, sua sponte, review such decision. Within 7 days after the Environmental Appeals Board has decided under this section to review an initial decision or the denial of a request for an evidentiary hearing, notice of that decision shall be served by mail upon all affected parties and the Regional Administrator. (c)(1) Within a reasonable time following the filing of the petition for review, the Environmental Appeals Board shall issue an order either granting or denying the petition for review. When the Environmental Appeals Board grants a petition for review or determines under paragraph (b) of this section to review a decision, the Environmental Appeals Board may notify the parties that only certain issues shall be briefed. (2) Upon granting a petition for review, the Regional Hearing Clerk shall promptly forward a copy of the record to the Environmental Appeals Board and shall retain a complete duplicate copy of the record in the Regional Office. (d) Notwithstanding the grant of a petition for review or a determination under paragraph (b) of this section to review a decision, the Environmental Appeals Board may summarily affirm without opinion an initial decision or the denial of a request for an evidentiary hearing. '*0*(( (e) A petition to the Environmental Appeals Board under paragraph (a) of this section for review of any initial decision or the denial of an evidentiary hearing is, under 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final decision of the Agency.  {OX  (f) If a party timely files a petition for review or if the Environmental Appeals Board sua sponte orders review, then, for purposes of judicial review, final Agency action on an issue occurs as follows: (1) If the Environmental Appeals Board denies review or summarily affirms without opinion as provided in 124.91(d), then the initial decision or denial becomes the final Agency action and occurs upon the service of notice of the Environmental Appeals Board's action. (2) If the Environmental Appeals Board issues a decision without remanding the proceeding then the final permit, redrafted as required by the Environmental Appeals Board's original decision, shall be reissued and served upon all parties to the appeal. (3) If the Environmental Appeals Board issues a decision remanding the proceeding, then final Agency action occurs upon completion of the remanded proceeding, inlcuding any appeals to the Environmental Appeals Board from the results of the remanded proceeding. (g) The petitioner may file a brief in support of the petition within 21 days after the Environmental Appeals Board has granted a petition for review. Any other party may file a responsive brief within 21 days of service of the petitioner's brief. The petitioner then may file a reply brief within 14 days of service of the responsive brief. Any  {OJ person may file an amicus brief for the consideration of the Environmental Appeals Board within the same time  {O periods that govern reply briefs. If the Environmental Appeals Board determines, sua sponte, to review an initial Regional Administrator's decision or the denial of a request for an evidentiary hearing, the Environmental Appeals Board shall notify the parties of the schedule for filing briefs. (h) Review by the Environmental Appeals Board of an initial decision or the denial of an evidentiary hearing shall be limited to the issues specified under paragraph (a) of this section, except that after notice to all the parties, the Environmental Appeals Board may raise and decide other matters which it considers material on the basis of the record. (i) Motions to reconsider a final order shall be filed within ten (10) days after service of the final order. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Motions for reconsideration under this provision shall be directed to, and decided by, the Environmental Appeals Board. Motions for reconsideration directed to the Administrator, rather than to the Environmental Appeals Board, will not be considered, except in cases that the Environmental Appeals Board has referred to the Administrator pursuant to 124.72 and in which the Administrator has issued the final order. A motion for reconsideration shall not stay the effective date of the final order unless specifically so ordered by the Environmental Appeals Board. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]  yO&   Subpart F--Non-Adversary Panel Procedures *   yO~  124.111 Applicability. (a) Except as set forth in this subpart, this subpart applies in lieu of, and to complete exclusion of, subparts A through E in the following cases: (1)(i) In any proceedings for the issuance of any NPDES permit under CWA sections 402 and 405(f) which constitute ``initial licensing'' under the Administrative Procedure Act, when the Regional Administrator elects to apply this subpart and explicitly so states in the public notice of the draft permit under 124.10 or in a supplemental notice under 124.14. If an NPDES draft permit is processed under this subpart, any other draft permits which have been consolidated with the NPDES draft permit under 124.4 shall likewise be processed under this subpart, except for PSD permits when the Regional Administrator makes a finding under 124.4(e) that consolidation would be likely to result in missing the one year statutory deadline for issuing a final PSD permit under the CAA. '+0*(( (ii) ``Initial licensing'' includes both the first decision on an NPDES permit applied for by a discharger that has not previously held one and the first decision on any variance requested by a discharger. (iii) To the extent this subpart is used to process a request for a variance under CWA section 301(h), the term ``Administrator or a person designated by the Administrator'' shall be substituted for the term ``Regional Administrator''. (2) In any proceeding for which a hearing under this subpart was granted under 124.75 following a request for a formal hearing under 124.74. See 124.74(c)(8) and 124.75(a)(2). (3) Whenever the Regional Administrator determines as a matter of discretion that the more formalized mechanisms of this subpart should be used to process draft NPDES general permits (for which evidentiary hearings are unavailable under 124.71), or draft RCRA or draft UIC permits. (b) EPA shall not apply these procedures to a decision on a variance where subpart E proceedings are simultaneously pending on the other conditions of the permit. See 124.64(b). [48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786, May 2, 1989]  yO  124.112 Relation to other subparts. The following provisions of subparts A through E apply to proceedings under this subpart: (a)(1) Sections 124.1 through 124.10. (2) Section 124.14 ``Reopening of comment period.'' (3) Section 124.16 ``Stays of contested permit conditions.'' (4) Section 124.20 ``Computation of time.'' (b)(1) Section 124.41 ``Definitions applicable to PSD Permits.'' (2) Section 124.42 ``Additional procedures for PSD permits affecting Class I Areas.'' (c)(1) Sections 124.51 through 124.56. (2) Section 124.57(c) ``Public notice.'' (3) Sections 124.58 through 124.66. (d)(1) Section 124.72 ``Definitions,'' except for the definition of ``Presiding Officer,'' see section 124.119. (2) Section 124.73 ``Filing.''  {Op  (3) Section 124.78 ``Ex parte communications.'' (4) Section 124.80 ``Filing and service.'' (5) Section 124.85(a) (Burden of proof). (6) Section 124.86 ``Motions.'' (7) Section 124.87 ``Record of hearings.'' (8) Section 124.90 ``Interlocutory appeal.'' (e) In the case of permits to which this subpart is made applicable after a final permit has been issued under 124.15, either by the grant under 124.75 of a hearing request under 124.74, or by notice of supplemental proceedings under 124.14, 124.13 and 124.76 shall also apply.  yO  124.113 Public notice of draft permits and public comment period. Public notice of a draft permit under this subpart shall be given as provided in 124.10 and 124.57. At the discretion of the Regional Administrator, the public comment period specified in this notice may include an opportunity for a public hearing under 124.12. %,0*((  yO 124.114 Request for hearing. (a) By the close of the comment period under 124.113, any person may request the Regional Administrator to hold a panel hearing on the draft permit by submitting a written request containing the following: (1) A brief statement of the interest of the person requesting the hearing; (2) A statement of any objections to the draft permit; (3) A statement of the issues which such person proposes to raise for consideration at the hearing; and (4) Statements meeting the requirements of 124.74(c)(1) - (5). (b) Whenever (1) a written request satisfying the requirements of paragraph (a) of this section has been received  {O and presents genuine issues of material fact, or (2) the Regional Administrator determines sua sponte that a hearing under this subpart is necessary or appropriate, the Regional Administrator shall notify each person requesting the hearing and the applicant, and shall provide public notice under 124.57(c). If the Regional Administrator determines that a request does not meet the requirements of paragraph (a) of this section or does not present genuine issues of fact, the Regional Administrator may deny the request for the hearing and shall serve written notice of that determination on all persons requesting the hearing. (c) The Regional Administrator may also decide before a draft permit is prepared under 124.6 that a hearing should be held under this section. In such cases, the public notice of the draft permit shall explicitly so state and shall contain the information required by 124.57(c). This notice may also provide for a hearing under 124.12 before a hearing is conducted under this section.  yOj  124.115 Effect of denial of or absence of request for hearing. If no request for a hearing is made under 124.114, or if all such requests are denied under that section, the Regional Administrator shall then prepare a recommended decision under 124.124. Any person whose hearing request has been denied may then appeal that recommended decision to the Environmental Appeals Board as provided in 124.91. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337, Feb. 13, 1992]  yO:  124.116 Notice of hearing. (a) Upon granting a request for a hearing under 124.114 the Regional Administrator shall promptly publish a notice of the hearing as required under 124.57(c). The mailed notice shall include a statement which indicates whether the Presiding Officer or the Regional Administrator will issue the Recommended decision. The mailed notice shall also allow the participants at least 30 days to submit written comments as provided under 124.118. (b) The Regional Administrator may also give notice of a hearing under this section at the same time as notice of a draft permit under 124.113. In that case the comment periods under 124.113 and 124.118 shall be merged and held as a single public comment period. (c) The Regional Administrator may also give notice of hearing under this section in response to a hearing request under 124.74 as provided in 124.75.  yOb"  124.117 Request to participate in hearing. (a) Persons desiring to participate in any hearing noticed under this section, shall file a request to participate with the Regional Hearing Clerk before the deadline set forth in the notice of the grant of the hearing. Any person filing such a request becomes a party to the proceedings within the meaning of the Administrative Procedure Act. The request shall include: (1) A brief statement of the interest of the person in the proceeding;'-0*((Ԍ (2) A brief outline of the points to be addressed; (3) An estimate of the time required; and (4) The requirements of 124.74(c)(1) - (5). (5) If the request is submitted by an organization, a nonbinding list of the persons to take part in the presentation. (b) As soon as practicable, but in no event later than 2 weeks before the scheduled date of the hearing, the Presiding Officer shall make a hearing schedule available to the public and shall mail it to each person who requested to participate in the hearing.  yO  124.118 Submissiom of written comments on draft permit. (a) No later than 30 days before the scheduled start of the hearing (or such other date as may be set forth in the notice of hearing), each party shall file all of its comments on the draft permit, based on information in the administrative record and any other information which is or reasonably could have been available to that party. All comments shall include any affidavits, studies, data, tests, or other materials relied upon for making any factual statements in the comments. (b)(1) Written comments filed under paragraph (a) of this section shall constitute the bulk of the evidence submitted at the hearing. Oral statements at the hearing should be brief and in the nature of argument. They shall be restricted either to points that could not have been made in written comments, or to emphasize points which are made in the comments, but which the party believes can more effectively be argued in the hearing context. (2) Notwithstanding the foregoing, within two weeks prior to the deadline specified in paragraph (a) of this section for the filing of comments, any party may move to submit all or part of its comments orally at the hearing in lieu of submitting written comments and the Presiding Officer shall, within one week, grant such motion if the Presiding Officer finds that the party will be prejudiced if required to submit the comments in written form. (c) Parties to any hearing may submit written material in response to the comments filed by other parties under paragraph (a) of this section at the time they appear at the panel stage of the hearing under 124.120.  yO  124.119 Presiding Officer. (a)(1)(i) Before giving notice of a hearing under this subpart in a proceeding involving an NPDES permit, the Regional Administrator shall request that the Chief Administrative Law Judge assign an Administrative Law Judge as the Presiding Officer. The Chief Administrative Law Judge shall then make the assignment. (ii) If all parties to such a hearing waive in writing their statutory right to have an Administrative Law Judge named as the Presiding Officer in a hearing subject to this subparagraph the Regional Administrator may name a Presiding Officer under paragraph (a)(2)(ii) of this section. (2) Before giving notice of a hearing under this subpart in a proceeding which does not involve an NPDES permit or a RCRA permit termination, the Regional Administrator shall either: (i) Request that the Chief Administrative Law Judge assign an Administrative Law Judge as the Presiding Officer. The Chief Administrative Law Judge may thereupon make such an assignment if he concludes that the other duties of his office allow, or (ii) Name a lawyer permanently or temporarily employed by the Agency and without prior connection with the proceeding to serve as Presiding Officer; (iii) If the Chief Administrative Law Judge declines to name an Administrative Law Judge as Presiding Officer upon receiving a request under paragraph (a)(2)(i) of this section, the Regional Administrator shall name a Presiding Officer under paragraph (a)(2)(ii) of this section. (b) It shall be the duty of the Presiding Officer to conduct a fair and impartial hearing. The Presiding Officer shall have the authority: (1) Conferred by 124.85(b)(1) - (15), 124.83 (b) and (c), and; (2) To receive relevant evidence, provided that all comments under 124.113 and 124.118, the record of the panel hearing under 124.120, and the administrative record, as defined in 124.9 or in 124.18 as the case may be shall be received in evidence, and'.0*((Ԍ {O  (3) Either upon motion or sua sponte, to change the date of the hearing under 124.120, or to recess such a hearing until a future date. In any such case the notice required by 124.10 shall be given. (c) Whenever a panel hearing will be held on an individual draft NPDES permit for a source which does not have an existing permit, the Presiding Officer, on motion by the source, may issue an order authorizing it to begin discharging if it complies with all conditions of the draft permit or such other conditions as may be imposed by the Presiding Officer in consultation with the panel. The motion shall be granted if no party opposes it, or if the source demonstrates that: (1) It is likely to receive a permit to discharge at that site; (2) The environment will not be irreparably harmed if the source is allowed to begin discharging in compliance with the conditions of the Presiding Officer's order pending final agency action; and (3) Its discharge pending final agency action is in the public interest. (d) If for any offshore or coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig which has never received a finally effective permit to discharge at a ``site,'' but which is not a ``new discharger'' or ``new source,'' the Regional Administrator finds that compliance with certain permit conditions may be necessary to avoid irreparable environmental harm during the nonadversary panel procedures, he may specify in the statement of basis or fact sheet that those conditions, even if contested, shall remain enforceable obligations of the discharger during administrative review unless otherwise modified by the Presiding Officer under paragraph (c) of this section.  {O (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42  {O U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983]  yO  124.120 Panel hearing. (a) A Presiding Officer shall preside at each hearing held under this subpart. An EPA panel shall also take part in the hearing. The panel shall consist of three or more EPA temporary or permanent employees having special expertise or responsibility in areas related to the hearing issue, none of whom shall have taken part in formulating the draft permit. If appropriate for the evaluation of new or different issues presented at the hearing, the panel membership, at the discretion of the Regional Administrator, may change or may include persons not employed by EPA. (b) At the time of the hearing notice under 124.116, the Regional Administrator shall designate the persons who shall serve as panel members for the hearing and the Regional Administrator shall file with the Regional Hearing Clerk the name and address of each person so designated. The Regional Administrator may also designate EPA employees who will provide staff support to the panel but who may or may not serve as panel members. The  {O& designated persons shall be subject to the ex parte rules in 124.78. The Regional Administrator may also designate Agency trial staff as defined in 124.78 for the hearing. (c) At any time before the close of the hearing the Presiding Officer, after consultation with the panel, may request that any person having knowledge concerning the issues raised in the hearing and not then scheduled to participate therein appear and testify at the hearing. (d) The panel members may question any person participating in the panel hearing. Cross-examination by persons other than panel members shall not be permitted at this stage of the proceeding except when the Presiding Officer determines, after consultation with the panel, that the cross-examination would expedite consideration of the issues. However, the parties may submit written questions to the Presiding Officer for the Presiding Officer to ask the participants, and the Presiding Officer may, after consultation with the panel, and at his or her sole discretion, ask these questions. (e) At any time before the close of the hearing, any party may submit to the Presiding Officer written questions specifically directed to any person appearing or testifying in the hearing. The Presiding Officer, after consultation with the panel may, at his sole discretion, ask the written question so submitted. '/0*(( (f) Within 10 days after the close of the hearing, any party shall submit such additional written testimony, affidavits, information, or material as they consider relevant or which the panel may request. These additional submissions shall be filed with the Regional Hearing Clerk and shall be a part of the hearing record. [48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052, Sept. 26, 1984]  yOx  124.121 Opportunity for cross-examination. (a) Any party to a panel hearing may submit a written request to cross-examine any issue of material fact. The motion shall be submitted to the Presiding Officer within 15 days after a full transcript of the panel hearing is filed with the Regional Hearing Clerk and shall specify: (1) The disputed issue(s) of material fact. This shall include an explanation of why the questions at issue are factual, the extent to which they are in dispute in light of the then existing record, and the extent to which they are material to the decision on the application; and (2) The person(s) to be cross-examined, and an estimate of the time necessary to conduct the cross-examination. This shall include a statement explaining how the cross-examination will resolve the disputed issues of material fact. (b) After receipt of all motions for cross-examination under paragraph (a) of this section, the Presiding Officer, after consultation with the hearing panel, shall promptly issue an order either granting or denying each request. No cross-examination shall be allowed on questions of policy except to the extent required to disclose the factual basis for permit requirements, or on questions of law, or regarding matters (such as the validity of effluent limitations guidelines) that are not subject to challenge in permit issuance proceedings. Orders granting requests for cross-examination shall be served on all parties and shall specify: (1) The issues on which cross-examination is granted; (2) The persons to be cross-examined on each issue; (3) The persons allowed to conduct cross-examination; (4) Time limits for the examination of witnesses by each cross-examiner; and (5) The date, time, and place of the supplementary hearing at which cross-examination shall take place. (6) In issuing this order, the Presiding Officer may determine that two or more parties have the same or similar interests and that to prevent unduly repetitious cross-examination, they should be required to choose a single representative for purposes of cross-examination. In that case, the order shall simply assign time for cross-examination without further identifying the representative. If the designated parties fail to choose a single representative, the Presiding Officer may divide the assigned time among the representatives or issue any other order which justice may require. (c) [Reserved] (d) The Presiding Officer and, to the extent possible, the members of the hearing panel shall be present at the supplementary hearing. During the course of the hearing, the Presiding Officer shall have authority to modify any order issued under paragraph (b) of this section. A record will be made under 124.87. (e)(1) No later than the time set for requesting cross-examination, a party may request that alternative methods of clarifying the record (such as the submission of additional written information) be used in lieu of or in addition to cross-examination. The Presiding Officer shall issue an order granting or denying this request at the time he or she issues (or would have issued) an order granting or denying a request for cross-examination, under paragraph (b) of this section. If the request for an alternative method is granted, the order shall specify the alternative and any other relevant information (such as the due date for submitting written information). (2) In passing on any request for cross-examination submitted under paragraph (a) of this section, the Presiding Officer may, as a precondition to ruling on the merits of the request, require alternative means of clarifying the record to be used whether or not a request to do so has been made. The party requesting cross-examination shall have one week to comment on the results of using the alternative method. After considering these comments the Presiding Officer shall issue an order granting or denying the request for cross-examination. (f) The provisions of 124.85(d)(2) and 124.84(e) apply to proceedings under this subpart. [48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38052, Sept. 26, 1984]'00*((Ԍ yO ԙ 124.122 Record for final permit. The record on which the final permit shall be based in any proceeding under this subpart consists of: (a) The administrative record compiled under 124.9 or 124.18 as the case may be;  {O   (b) Any material submitted under 124.78 relating to ex parte contacts; (c) All notices issued under 124.113; (d) All requests for hearings, and rulings on those requests, received or issued under 124.114; (e) Any notice of hearing issued under 124.116; (f) Any request to participate in the hearing received under 124.117; (g) All comments submitted under 124.118, any motions made under that section and the rulings on them, and any comments filed under 124.113; (h) The full transcript and other material received into the record of the panel hearing under 124.120; (i) Any motions for, or rulings on, cross-examination filed or issued under 124.121; (j) Any motions for, orders for, and the results of, any alternatives to cross-examination under 124.121; and (k) The full transcript of any cross-examination held.  yOJ  124.123 Filing of brief, proposed findings of fact and conclusions of law and proposed modified permit. Unless otherwise ordered by the Presiding Officer, each party may, within 20 days after all requests for cross-examination are denied or after a transcript of the full hearing including any cross-examination becomes available, submit proposed findings of fact; conclusions regarding material issues of law, fact, or discretion; a proposed modified permit (if such person is urging that the draft or final permit be modified); and a brief in support thereof; together with references to relevant pages of transcript and to relevant exhibits. Within 10 days thereafter each party may file a reply brief concerning matters contained in opposing briefs and containing alternative findings of fact; conclusions regarding material issues of law, fact, or discretion; and a proposed modified permit where appropriate. Oral argument may be held at the discretion of the Presiding Officer on motion of any party or sua sponte.  yO  124.124 Recommended decision. The person named to prepare the decision shall, as soon as practicable after the conclusion of the hearing, evaluate the record of the hearing and prepare and file a recommended decision with the Regional Hearing Clerk. That person may consult with, and receive assistance from, any member of the hearing panel in drafting the recommended decision, and may delegate the preparation of the recommended decision to the panel or to any member or members of it. This decision shall contain findings of fact, conclusions regarding all material issues of law, and a recommendation as to whether and in what respect the draft or final permit should be modified. After the recommended decision has been filed, the Regional Hearing Clerk shall serve a copy of that decision on each party and upon the Environmental Appeals Board. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337, Feb. 13, 1992]  yO  124.125 Appeal from or review of recommended decision. Within 30 days after service of the recommended decision, any party may take exception to any matter set forth in that decision or to any adverse order or ruling of the Presiding Officer to which that party objected, and may appeal those exceptions to the Environmental Appeals Board as provided in 124.91, except that references to the  {O$ initial decision will mean recommended decision under 124.124. [57 FR 5337, Feb. 13, 1992] '10*((Ԍ yO ԙ 124.126 Final decision. As soon as practicable after all appeal proceedings have been completed, the Environmental Appeals Board shall issue a final decision. The Environmental Appeals Board may consult with the Presiding Officer, members of the hearing panel, or any other EPA employee other than members of the Agency Trial Staff under 124.78 in preparing the final decision. The Hearing Clerk shall file a copy of the decision on all parties. [57 FR 5337, Feb. 13, 1992]  yO  124.127 Final decision if there is no review. If no party appeals a recommended decision to the Environmental Appeals Board, and if the Environmental Appeals Board does not elect to review it, the recommended decision becomes the final decision of the Agency upon the expiration of the time for filing any appeals. [57 FR 5337, Feb. 13, 1992]  yO  124.128 Delegation of authority; time limitations. (a) The Administrator delegates authority to the Environmental Appeals Board (which is described in 1.25 of this title) to issue final decisions in appeals filed under this subpart. An appeal directed to the Administrator, rather than to the Environmental Appeals Board, will not be considered. This delegation does not preclude the Environmental Appeals Board from referring an appeal or a motion filed under this subpart to the Administrator when the Environmental Appeals Board, in its discretion, deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Environmental Appeals Board, all parties shall be so notified and the rules in this subpart referring to the Environmental Appeals Board shall be interpreted as referring to the Administrator. (b) The failure of the Environmental Appeals Board, the Regional Administrator, or the Presiding Officer to do any act within the time periods specified under this part shall not waive or diminish any right, power, or authority of the United States Environmental Protection Agency. (c) Upon a showing by any party that it has been prejudiced by a failure of the Environmental Appeals Board, the Regional Administrator, or the Presiding Officer to do any act within the time periods specified under this part, the Environmental Appeals Board, the Regional Administrator, and the Presiding Officer, as the case may be, may grant that party such relief of a procedural nature (including extension of any time for compliance or other action) as may be appropriate. [57 FR 5337, Feb. 13, 1992]  yO@   Appendix A to Part 124--Guide to Decisionmaking Under Part  124 *  This appendix is designed to assist in reading the procedural requirements set out in part 124. It consists of two flow charts. Figure 1 diagrams the more conventional sequence of procedures EPA expects to follow in processing permits under this part. It outlines how a permit will be applied for, how a draft permit will be prepared and publicly noticed for comment, and how a final permit will be issued under the procedures in subpart A. This permit may then be appealed to the Administrator, as specified both in subpart A (for RCRA, UIC, or PSD permits), or subpart E or F (for NPDES permits). The first flow chart also briefly outlines which permit decisions are eligible for which types of appeal. '20*(( Part 124 also contains special ``non-adversary panel hearing'' procedures based on the ``initial licensing'' provisions of the Administrative Procedure Act. These procedures are set forth in subpart F. In some cases, EPA may only decide to make those procedures applicable after it has gone through the normal subpart A procedures on a draft permit. This process is also diagrammed in Figure 1. Figure 2 sets forth the general procedure to be followed where these subpart F procedures have been made applicable to a permit from the beginning. Both flow charts outline a sequence of events directed by arrows. The boxes set forth elements of the permit process; and the diamonds indicate key decisionmaking points in the permit process. The charts are discussed in more detail below.  {M Figure 1--Conventional EPA Permitting Procedures This chart outlines the procedures for issuing permits whenever EPA does not make use of the special ``panel hearing'' procedures in subpart F. The major steps depicted on this chart are as follows: 1. The permit process can begin in any one of the following ways: a. Normally, the process will begin when a person applies for a permit under 122.21 (NPDES), 144.31 (UIC), 233.4 (404), and 270.10 (RCRA) and 124.3. b. In other cases, EPA may decide to take action on its own initiative to change a permit or to issue a general permit. This leads directly to preparation of a draft permit under 124.6. c. In addition, the permittee or any interested person (other than for PSD permits) may request modification, revocation and reissuance or termination of a permit under 122.62, 122.64 (NPDES), 144.39, 144.40 (UIC), 233.14, 233.15, (404), 270.41, 270.43 (RCRA), and 124.5. Those requests can be handled in either of two ways: i. EPA may tentatively decide to grant the request and issue a new draft permit for public comment, either with or without requiring a new application. ii. If the request is denied, an informal appeal to the Environmental Appeals Board is available. 2. The next major step in the permit process is the preparation of a draft permit. As the chart indicates, preparing a draft permit also requires preparation of either a statement of basis (124.7), a fact sheet (124.5) or, compilation of an ``administrative record'' (124.9), and public notice (124.10). 3. The next stage is the public comment period (124.11). A public hearing under 124.12 may be requested before the close of the public comment period. EPA has the discretion to hold a public hearing, even if there were no requests during the public comment period. If EPA decides to schedule one, the public comment period will be extended through the close of the hearing. EPA also has the discretion to conduct the public hearing under subpart F panel procedures. (See Figure 2.) The regulations provide that all arguments and factual materials that a person wishes EPA to consider in connection with a particular permit must be placed in the record by the close of the public comment period (124.13). 4. Section 124.14 states that EPA, at any time before issuing a final permit decision may decide to either reopen or extend the comment period, prepare a new draft permit and begin the process again from that point, or for RCRA and UIC permits, or for NPDES permits that constitute ``initial licensing'', to begin ``panel hearing'' proceedings under subpart F. These various results are shown schematically. 5. The public comment period and any public hearing will be followed by issuance of a final permit decision (124.15). As the chart shows, the final permit must be accompanied by a response to comments (124.17) and be based on the administrative record (124.18). 6. After the final permit is issued, it may be appealed to higher agency authority. The exact form of the appeal depends on the type of permit involved. a. RCRA, UIC, or PSD permits standing alone will be appealed directly to the Environmental Appeals Board under 124.9. b. NPDES permits which do not involve ``initial licensing'' may be appealed in an evidentiary hearing under subpart E. The regulations provide (124.74) that if such a hearing is granted for an NPDES permit and if RCRA or UIC permits have been consolidated with that permit under 124.4 then closely related conditions of those RCRA '30*(( or UIC permits may be reexamined in an evidentiary hearing. PSD permits, however, may never be reexamined in a subpart E hearing. c. NPDES permits which do involve ``initial licensing'' may be appealed in a panel hearing under subpart F. The regulations provide that if such a hearing is granted for an NPDES permit, consolidated RCRA, UIC, or PSD permits may also be reexamined in the same proceeding. As discussed below, this is only one of several ways the panel hearing procedures may be used under these regulations. 7. This chart does not show EPA appeal procedures in detail. Procedures for appeal to the Environmental Appeals Board under 124.19 are self-explanatory; subpart F procedures are diagrammed in Figure 2; and subpart E procedures are basically the same that would apply in any evidentiary hearing. However, the chart at this stage does reflect the provisions of 124.60(b), which allows EPA, even after a formal hearing has begun, to ``recycle'' a permit back to the draft permit stage at any time before that hearing has resulted in an initial decision.  {M Figure 2--Non-Adversary Panel Procedures This chart outlines the procedures for processing permits under the special ``panel hearing'' procedures of subpart F. These procedures were designed for making decisions that involve ``initial licensing'' NPDES permits. Those permits include the first decisions on an NPDES permit applied for by any discharger that has not previously held one, and the first decision on any statutory variance. In addition, these procedures will be used for any RCRA, UIC, or PSD permit which has been consolidated with such an NPDES permit, and may be used, if the Regional Administrator so chooses, for the issuance of individual RCRA or UIC permits. The steps depicted on this chart are as follows:  {O  1. Application for a permit. These proceedings will generally begin with an application, since NPDES initial licensing always will begin with an application.  {O  2. Preparation of a draft permit. This is identical to the similar step in Figure 1.  {OT  3. Public comment period. This again is identical to the similar step in Figure 1. The Regional Administrator has the opportunity to schedule an informal public hearing under 124.12 during this period. 4. Requests for a panel hearing must be received by the end of the public comment period under 124.113. The recommended decision may then be appealed to the Environmental Appeals Board. See 124.115. If a hearing request is denied, or if no hearing requests are received, a recommended decision will be issued based on the comments received. The recommended decision may then be appealed to the Administrator. See 124.115. 5. If a hearing is granted, notice of the hearing will be published in accordance with 124.116 and will be followed by a second comment period during which requests to participate and the bulk of the remaining evidence for the final decision will be received (124.117 and 124.118). The regulations also allow EPA to move directly to this stage by scheduling a hearing when the draft permit is prepared. In such cases the comment period on the draft permit under 124.113 and the prehearing comment period under 124.118 would occur at the same time. EPA anticipates that this will be the more frequent practice when permits are processed under panel procedures. This is also a stage at which EPA can switch from the conventional procedures diagramed in Figure 1 to the panel hearing procedures. As the chart indicates, EPA would do this by scheduling a panel hearing either through use of the ``recycle'' provision in 124.14 or in response to a request for a formal hearing under 124.74. 6. After the close of the comment period, a panel hearing will be held under 124.120, followed by any cross-examination granted under 124.121. The recommended decision will then be prepared (124.124) and an opportunity for appeal provided under 124.125. A final decision will be issued after appeal proceedings, if any, are concluded. [48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337, 5338, Feb. 13, 1992] %40*((  Figure 1  Figure 1 ay! dd124-211.PCX5< y yA #dd124-212.PCX6< y Figure 1 A Figure 1 a60*(( ya5 Rdd124-213.PCX7< y70*((