[Code of Federal Regulations]
[Title 40, Volume 14]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR71.6]

[Page 267-274]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 71_FEDERAL OPERATING PERMIT PROGRAMS--Table of Contents
 
                       Subpart A_Operating Permits
 
Sec. 71.6  Permit content.

    (a) Standard permit requirements. Each permit issued under this part 
shall include the following elements:
    (1) Emission limitations and standards, including those operational 
requirements and limitations that assure compliance with all applicable 
requirements at the time of permit issuance.
    (i) The permit shall specify and reference the origin of and 
authority for each term or condition, and identify any difference in 
form as compared to the applicable requirement upon which the term or 
condition is based.
    (ii) The permit shall state that, where an applicable requirement of 
the Act is more stringent than an applicable requirement of 40 CFR parts 
72 through 78, both provisions shall be incorporated into the permit and 
shall be enforceable by the Administrator.
    (iii) If an applicable implementation plan allows a determination of 
an alternative emission limit at a part 71 source, equivalent to that 
contained in the plan, to be made in the permit issuance, renewal, or 
significant modification process, and the permitting authority elects to 
use such process, any permit containing such equivalency determination 
shall contain provisions to ensure that any resulting emissions limit 
has been demonstrated to be quantifiable, accountable, enforceable, and 
based on replicable procedures.
    (2) Permit duration. The permitting authority shall issue permits 
for a

[[Page 268]]

fixed term of 5 years in the case of affected sources, and for a term 
not to exceed 5 years in the case of all other sources. Notwithstanding 
this requirement, the permitting authority shall issue permits for solid 
waste incineration units combusting municipal waste subject to standards 
under section 129(e) of the Act for a period not to exceed 12 years and 
shall review such permits at least every 5 years.
    (3) Monitoring and related recordkeeping and reporting requirements. 
(i) Each permit shall contain the following requirements with respect to 
monitoring:
    (A) All monitoring and analysis procedures or test methods required 
under applicable monitoring and testing requirements, including part 64 
of this chapter and any other procedures and methods that may be 
promulgated pursuant to sections 114(a)(3) or 504(b) of the Act. If more 
than one monitoring or testing requirement applies, the permit may 
specify a streamlined set of monitoring or testing provisions provided 
the specified monitoring or testing is adequate to assure compliance at 
least to the same extent as the monitoring or testing applicable 
requirements that are not included in the permit as a result of such 
streamlining;
    (B) Where the applicable requirement does not require periodic 
testing or instrumental or noninstrumental monitoring (which may consist 
of recordkeeping designed to serve as monitoring), periodic monitoring 
sufficient to yield reliable data from the relevant time period that are 
representative of the source's compliance with the permit, as reported 
pursuant to paragraph (a)(3)(iii) of this section. Such monitoring 
requirements shall assure use of terms, test methods, units, averaging 
periods, and other statistical conventions consistent with the 
applicable requirement. Recordkeeping provisions may be sufficient to 
meet the requirements of this paragraph (a)(3)(i)(B); and
    (C) As necessary, requirements concerning the use, maintenance, and, 
where appropriate, installation of monitoring equipment or methods.
    (ii) With respect to recordkeeping, the permit shall incorporate all 
applicable recordkeeping requirements and require, where applicable, the 
following:
    (A) Records of required monitoring information that include the 
following:
    (1) The date, place as defined in the permit, and time of sampling 
or measurements;
    (2) The date(s) analyses were performed;
    (3) The company or entity that performed the analyses;
    (4) The analytical techniques or methods used;
    (5) The results of such analyses; and
    (6) The operating conditions as existing at the time of sampling or 
measurement;
    (B) Retention of records of all required monitoring data and support 
information for a period of at least 5 years from the date of the 
monitoring sample, measurement, report, or application. Support 
information includes all calibration and maintenance records and all 
original strip-chart recordings for continuous monitoring 
instrumentation, and copies of all reports required by the permit.
    (iii) With respect to reporting, the permit shall incorporate all 
applicable reporting requirements and require the following:
    (A) Submittal of reports of any required monitoring at least every 6 
months. All instances of deviations from permit requirements must be 
clearly identified in such reports. All required reports must be 
certified by a responsible official consistent with Sec. 71.5(d).
    (B) Prompt reporting of deviations from permit requirements, 
including those attributable to upset conditions as defined in the 
permit, the probable cause of such deviations, and any corrective 
actions or preventive measures taken. Where the underlying applicable 
requirement contains a definition of prompt or otherwise specifies a 
time frame for reporting deviations, that definition or time frame shall 
govern. Where the underlying applicable requirement fails to address the 
time frame for reporting deviations, reports of deviations shall be 
submitted to the permitting authority based on the following schedule:
    (1) For emissions of a hazardous air pollutant or a toxic air 
pollutant (as

[[Page 269]]

identified in an applicable regulation) that continue for more than an 
hour in excess of permit requirements, the report must be made with 24 
hours of the occurrence.
    (2) For emissions of any regulated air pollutant, excluding those 
listed in paragraph (a)(3)(iii)(B)(1) of this section, that continue for 
more than two hours in excess of permit requirements, the report must be 
made within 48 hours.
    (3) For all other deviations from permit requirements, the report 
shall be contained in the report submitted in accordance with the 
timeframe given in paragraph (a)(3)(iii)(A).
    (4) A permit may contain a more stringent reporting requirement than 
required by paragraphs (a)(3)(iii)(B)(1), (2), or (3).
    If any of the above conditions are met, the source must notify the 
permitting authority by telephone or facsimile based on the timetable 
listed in paragraphs (a)(3)(iii)(B) (1) through (4) of this section. A 
written notice, certified consistent with Sec. 71.5(d), must be 
submitted within 10 working days of the occurrence. All deviations 
reported under paragraph (a)(3)(iii)(A) of this section must also be 
identified in the 6 month report required under paragraph (a)(3)(iii)(A) 
of this section.
    (C) For purposes of paragraph (a)(3)(iii)(B) of this section, 
deviation means any situation in which an emissions unit fails to meet a 
permit term or condition. A deviation is not always a violation. A 
deviation can be determined by observation or through review of data 
obtained from any testing, monitoring, or recordkeeping established in 
accordance with paragraphs (a)(3)(i) and (a)(3)(ii) of this section. For 
a situation lasting more than 24 hours which constitutes a deviation, 
each 24 hour period is considered a separate deviation. Included in the 
meaning of deviation are any of the following:
    (1) A situation where emissions exceed an emission limitation or 
standard;
    (2) A situation where process or emissions control device parameter 
values indicate that an emission limitation or standard has not been 
met;
    (3) A situation in which observations or data collected demonstrates 
noncompliance with an emission limitation or standard or any work 
practice or operating condition required by the permit;
    (4) A situation in which an exceedance or an excursion, as defined 
in part 64 of this chapter, occurs.
    (4) A permit condition prohibiting emissions exceeding any 
allowances that the source lawfully holds under 40 CFR parts 72 through 
78.
    (i) No permit revision shall be required for increases in emissions 
that are authorized by allowances acquired pursuant to the acid rain 
program, provided that such increases do not require a permit revision 
under any other applicable requirement.
    (ii) No limit shall be placed on the number of allowances held by 
the source. The source may not, however, use allowances as a defense to 
noncompliance with any other applicable requirement.
    (iii) Any such allowance shall be accounted for according to the 
procedures established in regulations 40 CFR parts 72 through 78.
    (5) A severability clause to ensure the continued validity of the 
various permit requirements in the event of a challenge to any portions 
of the permit.
    (6) Provisions stating the following:
    (i) The permittee must comply with all conditions of the part 71 
permit. Any permit noncompliance constitutes a violation of the Act and 
is grounds for enforcement action; for permit termination, revocation 
and reissuance, or modification; or for denial of a permit renewal 
application.
    (ii) Need to halt or reduce activity not a defense. It shall not be 
a defense for a permittee in an enforcement action that it would have 
been necessary to halt or reduce the permitted activity in order to 
maintain compliance with the conditions of this permit.
    (iii) The permit may be modified, revoked, reopened, and reissued, 
or terminated for cause. The filing of a request by the permittee for a 
permit modification, revocation and

[[Page 270]]

reissuance, or termination, or of a notification of planned changes or 
anticipated noncompliance does not stay any permit condition.
    (iv) The permit does not convey any property rights of any sort, or 
any exclusive privilege.
    (v) The permittee shall furnish to the permitting authority, within 
a reasonable time, any information that the permitting authority may 
request in writing to determine whether cause exists for modifying, 
revoking and reissuing, or terminating the permit or to determine 
compliance with the permit. Upon request, the permittee shall also 
furnish to the permitting authority copies of records required to be 
kept by the permit or, in the case of a program delegated pursuant to 
Sec. 71.10, for information claimed to be confidential, the permittee 
may furnish such records directly to the Administrator along with a 
claim of confidentiality.
    (7) A provision to ensure that a part 71 source pays fees to the 
Administrator consistent with the fee schedule approved pursuant to 
Sec. 71.9.
    (8) Emissions trading. A provision stating that no permit revision 
shall be required, under any approved economic incentives, marketable 
permits, emissions trading and other similar programs or processes for 
changes that are provided for in the permit.
    (9) Terms and conditions for reasonably anticipated operating 
scenarios identified by the source in its application as approved by the 
permitting authority. Such terms and conditions:
    (i) Shall require the source, contemporaneously with making a change 
from one operating scenario to another, to record in a log at the 
permitted facility a record of the scenario under which it is operating;
    (ii) May extend the permit shield described in paragraph (f) of this 
section to all terms and conditions under each such operating scenario; 
and
    (iii) Must ensure that the terms and conditions of each such 
alternative scenario meet all applicable requirements and the 
requirements of this part.
    (10) Terms and conditions, if the permit applicant requests them, 
for the trading of emissions increases and decreases in the permitted 
facility, to the extent that the applicable requirements provide for 
trading such increases and decreases without a case-by-case approval of 
each emissions trade. Such terms and conditions:
    (i) Shall include all terms required under paragraphs (a) and (c) of 
this section to determine compliance;
    (ii) May extend the permit shield described in paragraph (f) of this 
section to all terms and conditions that allow such increases and 
decreases in emissions; and
    (iii) Must meet all applicable requirements and requirements of this 
part.
    (11) Permit expiration. A provision to ensure that a part 71 permit 
expires upon the earlier occurrence of the following events:
    (i) twelve years elapses from the date of issuance to a solid waste 
incineration unit combusting municipal waste subject to standards under 
section 112(e) of the Act; or
    (ii) five years elapses from the date of issuance; or
    (iii) the source is issued a part 70 permit.
    (12) Off Permit Changes. A provision allowing changes that are not 
addressed or prohibited by the permit, other than those subject to the 
requirements of 40 CFR parts 72 through 78 or those that are 
modifications under any provision of title I of the Act to be made 
without a permit revision, provided that the following requirements are 
met:
    (i) Each such change shall meet all applicable requirements and 
shall not violate any existing permit term or condition;
    (ii) Sources must provide contemporaneous written notice to the 
permitting authority (and EPA, in the case of a program delegated 
pursuant to Sec. 71.10) of each such change, except for changes that 
qualify as insignificant under Sec. 71.5(c)(11). Such written notice 
shall describe each such change, including the date, any change in 
emissions, pollutants emitted, and any applicable requirement that would 
apply as a result of the change;
    (iii) The change shall not qualify for the shield under Sec. 
71.6(f);
    (iv) The permittee shall keep a record describing changes made at 
the source that result in emissions of a regulated air pollutant subject 
to an

[[Page 271]]

applicable requirement, but not otherwise regulated under the permit, 
and the emissions resulting from those changes.
    (13) Operational flexibility. Provisions consistent with paragraphs 
(a)(3)(i) through (iii) of this section to allow changes within a 
permitted facility without requiring a permit revision, if the changes 
are not modifications under any provision of title I of the Act and the 
changes do not exceed the emissions allowable under the permit (whether 
expressed therein as a rate of emissions or in terms of total 
emissions): Provided, that the facility provides the Administrator (in 
the case of a program delegated pursuant to Sec. 71.10) and the 
permitting authority with written notification as required below in 
advance of the proposed changes, which shall be a minimum of 7 days.
    (i) The permit shall allow the permitted source to make section 
502(b)(10) changes without requiring a permit revision, if the changes 
are not modifications under any provision of title I of the Act and the 
changes do not exceed the emissions allowable under the permit (whether 
expressed therein as a rate of emissions or in terms of total 
emissions).
    (A) For each such change, the written notification required above 
shall include a brief description of the change within the permitted 
facility, the date on which the change will occur, any change in 
emissions, and any permit term or condition that is no longer applicable 
as a result of the change.
    (B) The permit shield described in Sec. 71.6(f) shall not apply to 
any change made pursuant to this paragraph (a)(13)(i).
    (ii) The permit may provide for the permitted source to trade 
increases and decreases in emissions in the permitted facility, where 
the applicable implementation plan provides for such emissions trades 
without requiring a permit revision and based on the 7-day notice 
prescribed in this paragraph (a)(13)(ii) of this section. This provision 
is available in those cases where the permit does not already provide 
for such emissions trading.
    (A) Under this paragraph (a)(13)(ii), the written notification 
required above shall include such information as may be required by the 
provision in the applicable implementation plan authorizing the 
emissions trade, including at a minimum, when the proposed change will 
occur, a description of each such change, any change in emissions, the 
permit requirements with which the source will comply using the 
emissions trading provisions of the applicable implementation plan, and 
the pollutants emitted subject to the emissions trade. The notice shall 
also refer to the provisions with which the source will comply in the 
applicable implementation plan and that provide for the emissions trade.
    (B) The permit shield described in Sec. 71.6(f) shall not extend to 
any change made under this paragraph (a)(13)(ii). Compliance with the 
permit requirements that the source will meet using the emissions trade 
shall be determined according to requirements of the applicable 
implementation plan authorizing the emissions trade.
    (iii) The permit shall require the permitting authority, if a permit 
applicant requests it, to issue permits that contain terms and 
conditions, including all terms required under Sec. 71.6 (a) and (c) to 
determine compliance, allowing for the trading of emissions increases 
and decreases in the permitted facility solely for the purpose of 
complying with a federally-enforceable emissions cap that is established 
in the permit independent of otherwise applicable requirements. The 
permit applicant shall include in its application proposed replicable 
procedures and permit terms that ensure the emissions trades are 
quantifiable and enforceable. The permitting authority shall not be 
required to include in the emissions trading provisions any emissions 
units for which emissions are not quantifiable or for which there are no 
replicable procedures to enforce the emissions trades. The permit shall 
also require compliance with all applicable requirements.
    (A) Under this paragraph (a)(13)(iii), the written notification 
required above shall state when the change will occur and shall describe 
the changes in emissions that will result and how these increases and 
decreases in emissions will

[[Page 272]]

comply with the terms and conditions of the permit.
    (B) The permit shield described in Sec. 71.6(f) may extend to terms 
and conditions that allow such increases and decreases in emissions.
    (b) Federally-enforceable requirements. All terms and conditions in 
a part 71 permit, including any provisions designed to limit a source's 
potential to emit, are enforceable by the Administrator and citizens 
under the Act.
    (c) Compliance requirements. All part 71 permits shall contain the 
following elements with respect to compliance:
    (1) Consistent with paragraph (a)(3) of this section, compliance 
certification, testing, monitoring, reporting, and recordkeeping 
requirements sufficient to assure compliance with the terms and 
conditions of the permit. Any document (including reports) required by a 
part 71 permit shall contain a certification by a responsible official 
that meets the requirements of Sec. 71.5(d).
    (2) Inspection and entry requirements that require that, upon 
presentation of credentials and other documents as may be required by 
law, the permittee shall allow the permitting authority or an authorized 
representative to perform the following:
    (i) Enter upon the permittee's premises where a part 71 source is 
located or emissions-related activity is conducted, or where records 
must be kept under the conditions of the permit;
    (ii) Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of the permit;
    (iii) Inspect at reasonable times any facilities, equipment 
(including monitoring and air pollution control equipment), practices, 
or operations regulated or required under the permit; and
    (iv) As authorized by the Act, sample or monitor at reasonable times 
substances or parameters for the purpose of assuring compliance with the 
permit or applicable requirements.
    (3) A schedule of compliance consistent with Sec. 71.5(c)(8).
    (4) Progress reports consistent with an applicable schedule of 
compliance and Sec. 71.5(c)(8) to be submitted at least semiannually, 
or at a more frequent period if specified in the applicable requirement 
or by the permitting authority. Such progress reports shall contain the 
following:
    (i) Dates for achieving the activities, milestones, or compliance 
required in the schedule of compliance, and dates when such activities, 
milestones or compliance were achieved; and
    (ii) An explanation of why any dates in the schedule of compliance 
were not or will not be met, and any preventive or corrective measures 
adopted.
    (5) Requirements for compliance certification with terms and 
conditions contained in the permit, including emission limitations, 
standards, or work practices. Permits shall include each of the 
following:
    (i) The frequency (not less than annually or such more frequent 
periods as specified in the applicable requirement or by the permitting 
authority) of submissions of compliance certifications;
    (ii) In accordance with Sec. 71.6(a)(3), a means for monitoring the 
compliance of the source with its emissions limitations, standards, and 
work practices;
    (iii) A requirement that the compliance certification include all of 
the following (provided that the identification of applicable 
information may cross-reference the permit or previous reports, as 
applicable):
    (A) The identification of each term or condition of the permit that 
is the basis of the certification;
    (B) The identification of the method(s) or other means used by the 
owner or operator for determining the compliance status with each term 
and condition during the certification period. Such methods and other 
means shall include, at a minimum, the methods and means required under 
paragraph (a)(3) of this section;
    (C) The status of compliance with the terms and conditions of the 
permit for the period covered by the certification, including whether 
compliance during the period was continuous or intermittent. The 
certification shall be based on the method or means designated in 
paragraph (c)(5)(iii)(B) of this section. The certification shall 
identify each deviation and take it into account in the compliance 
certification; and

[[Page 273]]

    (D) Such other facts as the permitting authority may require to 
determine the compliance status of the source.
    (iv) A requirement that all compliance certifications be submitted 
to the Administrator as well as to the permitting authority.
    (6) Such other provisions as the permitting authority may require.
    (d) General permits. (1) The permitting authority may, after notice 
and opportunity for public participation provided under Sec. 71.11, 
issue a general permit covering numerous similar sources. Any general 
permit shall comply with all requirements applicable to other part 71 
permits and shall identify criteria by which sources may qualify for the 
general permit. To sources that qualify, the permitting authority shall 
grant the conditions and terms of the general permit. Notwithstanding 
the shield provisions of paragraph (f) of this section, the source shall 
be subject to enforcement action for operation without a part 71 permit 
if the source is later determined not to qualify for the conditions and 
terms of the general permit. General permits shall not be authorized for 
affected sources under the acid rain program unless otherwise provided 
in 40 CFR parts 72 through 78.
    (2) Part 71 sources that would qualify for a general permit must 
apply to the permitting authority for coverage under the terms of the 
general permit or must apply for a part 71 permit consistent with Sec. 
71.5. The permitting authority may, in the general permit, provide for 
applications which deviate from the requirements of Sec. 71.5, provided 
that such applications meet the requirements of title V of the Act, and 
include all information necessary to determine qualification for, and to 
assure compliance with, the general permit. Without repeating the public 
participation procedures required under Sec. 71.11, the permitting 
authority may grant a source's request for authorization to operate 
under a general permit, but such a grant shall not be a final permit 
action for purposes of judicial review.
    (e) Temporary sources. The permitting authority may issue a single 
permit authorizing emissions from similar operations by the same source 
owner or operator at multiple temporary locations. The operation must be 
temporary and involve at least one change of location during the term of 
the permit. No affected source shall be permitted as a temporary source. 
Permits for temporary sources shall include the following:
    (1) Conditions that will assure compliance with all applicable 
requirements at all authorized locations;
    (2) Requirements that the owner or operator notify the permitting 
authority at least 10 days in advance of each change in location; and
    (3) Conditions that assure compliance with all other provisions of 
this section.
    (f) Permit shield. (1) Except as provided in this part, the 
permitting authority may expressly include in a part 71 permit a 
provision stating that compliance with the conditions of the permit 
shall be deemed compliance with any applicable requirements as of the 
date of permit issuance, provided that:
    (i) Such applicable requirements are included and are specifically 
identified in the permit; or
    (ii) The permitting authority, in acting on the permit application 
or revision, determines in writing that other requirements specifically 
identified are not applicable to the source, and the permit includes the 
determination or a concise summary thereof.
    (2) A part 71 permit that does not expressly state that a permit 
shield exists shall be presumed not to provide such a shield.
    (3) Nothing in this paragraph or in any part 71 permit shall alter 
or affect the following:
    (i) The provisions of section 303 of the Act (emergency orders), 
including the authority of the Administrator under that section;
    (ii) The liability of an owner or operator of a source for any 
violation of applicable requirements prior to or at the time of permit 
issuance;
    (iii) The applicable requirements of the acid rain program, 
consistent with section 408(a) of the Act; or
    (iv) The ability of EPA to obtain information from a source pursuant 
to section 114 of the Act.
    (g) Emergency provision. (1) Definition. An ``emergency'' means any 
situation

[[Page 274]]

arising from sudden and reasonably unforeseeable events beyond the 
control of the source, including acts of God, which situation requires 
immediate corrective action to restore normal operation, and that causes 
the source to exceed a technology-based emission limitation under the 
permit, due to unavoidable increases in emissions attributable to the 
emergency. An emergency shall not include noncompliance to the extent 
caused by improperly designed equipment, lack of preventative 
maintenance, careless or improper operation, or operator error.
    (2) Effect of an emergency. An emergency constitutes an affirmative 
defense to an action brought for noncompliance with such technology-
based emission limitations if the conditions of paragraph (g)(3) of this 
section are met.
    (3) The affirmative defense of emergency shall be demonstrated 
through properly signed, contemporaneous operating logs, or other 
relevant evidence that:
    (i) An emergency occurred and that the permittee can identify the 
cause(s) of the emergency;
    (ii) The permitted facility was at the time being properly operated;
    (iii) During the period of the emergency the permittee took all 
reasonable steps to minimize levels of emissions that exceeded the 
emission standards, or other requirements in the permit; and
    (iv) The permittee submitted notice of the emergency to the 
permitting authority within 2 working days of the time when emission 
limitations were exceeded due to the emergency. This notice fulfills the 
requirement of paragraph (a)(3)(iii)(B) of this section. This notice 
must contain a description of the emergency, any steps taken to mitigate 
emissions, and corrective actions taken.
    (4) In any enforcement proceeding, the permittee seeking to 
establish the occurrence of an emergency has the burden of proof.
    (5) This provision is in addition to any emergency or upset 
provision contained in any applicable requirement.

[61 FR 34228, July 1, 1996, as amended at 62 FR 54947, Oct. 22, 1997; 66 
FR 12876, Mar. 1, 2001; 66 FR 55885, Nov. 5, 2001; 68 FR 38523, June 27, 
2003]