40 CFR 77.4 – Administrator’s action on proposed offset plans
(a) Determination of completeness. The Administrator will determine whether the proposed offset plan is complete within 30 days of receipt by the Administrator. The offset plan shall be deemed complete if the Administrator fails to notify the designated representative to the contrary within 30 days of receipt or when the Administrator approves the offset plan and deducts allowances in accordance with paragraph (b)(1) of this section.
Terms Used In 40 CFR 77.4
- Deposition: An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.
(b) Review of proposed offset plans. (1) If the designated representative submits a complete proposed offset plan for immediate deduction, from the source’s compliance account, of allowances required to offset excess emissions of sulfur dioxide, the Administrator will approve the proposed offset plan without further review and will serve written notice of any approval on the designated representative. The Administrator will also give notice of any approval in the
(2) Notwithstanding paragraph (b)(1) of this section, the Administrator may, in his or her discretion, require that the proposed offset plan under paragraph (b)(1) of this section be reviewed under paragraphs (c) through (k) of this section. The Administrator may exercise such discretion where he or she determines that review of the plan is necessary to ensure compliance with the emissions limitation and reduction goals or other purposes of title IV of the Act.
(3) If the designated representative submits a complete proposed offset plan that does not meet the requirements of paragraph (b)(1) of this section, the Administrator will review the plan under paragraphs (c) through (k) of this section.
(c) Supplemental information. (1)(i) Regardless of whether the proposed offset plan is complete under paragraph (a) of this section, the Administrator may require submission of any additional information that the Administrator determines is necessary to approve an offset plan.
(ii) Such supplemental information may include, but is not limited to:
(A) A description of the measures that are proposed to be taken to ensure that the source will have sufficient allowances to offset the excess emissions and to prevent excess emissions in future years;
(B) A schedule of compliance with appropriate increments of progress for the proposed measures; and
(C) A schedule for the submission of progress reports, and supporting documentation, describing actions taken and actions remaining to be taken under the schedule of compliance and any proposed adjustments to the schedule of compliance.
(2)(i) The designated representative shall submit the information required under paragraph (c)(1) of this section within a reasonable period determined by the Administrator.
(ii) If the designated representative fails to submit the supplemental information within the required time period, the Administrator may disapprove the proposed offset plan.
(d) Draft offset plan. (1) After the Administrator receives a complete proposed offset plan and any supplemental information, the Administrator will prepare a draft offset plan that incorporates in whole, in part, or with changes or conditions as appropriate, the proposed offset plan or disapprove a draft offset plan for the affected source. Regardless of whether the Administrator required the submission of the information set forth in paragraph (c)(1)(ii) of this section, the draft offset plan may include, among other requirements and conditions as determined to be appropriate by the Administrator, the submission of schedules of compliance, progress reports, and monitoring and other information.
(2) The draft offset plan will be based on the information submitted by the designated representative for the affected source and other relevant information.
(3) The Administrator will serve a copy of the draft offset plan and the statement of basis on the designated representative of the affected source.
(4) The Administrator will provide a 30-day period for public comment, and opportunity to request a public hearing, on the draft offset plan or disapproval of a draft offset plan in accordance with the public notice required under paragraph (g)(1)(i)(A) of this section.
(e) Offset plan administrative record. (1) The Administrator will prepare an administrative record for an offset plan or disapproval of an offset plan. The administrative record will contain:
(i) The proposed offset plan and any supporting or supplemental information submitted by the designated representative;
(ii) The draft offset plan;
(iii) The statement of basis;
(iv) Copies of all documents relied on by the Administrator in approving or disapproving the draft offset plan (including any records of discussions or conferences with owners, operators or the designated representative of the source or interested persons regarding the draft offset plan) or, for any such documents that are readily available, a statement of their location;
(v) Copies of all written public comments submitted on the draft offset plan or disapproval of a draft offset plan;
(vi) The record of any public hearing on the draft offset plan or disapproval of a draft offset plan;
(vii) The offset plan approved by the Administrator; and
(viii) Any response to public comments submitted on the draft offset plan or disapproval of a draft offset plan, including any documents cited in the response and any other documents relied on by the Administrator or, for any such documents that are readily available, a statement of their location.
(2) The Administrator will approve or disapprove an offset plan within 6 months of receipt of a complete proposed offset plan.
(f) Statement of basis. (1) The statement of basis will briefly set forth significant factual, legal, and policy considerations on which the Administrator relied in approving or disapproving the draft offset plan.
(2) The statement of basis will include:
(i) The reasons, and supporting authority, for approval or disapproval of any proposed offset plan that does not require immediate deduction of allowances, including references to applicable statutory or regulatory provisions and to the administrative record; and
(ii) The name, address, and telephone and facsimile number of the EPA office processing the approval or disapproval of the offset plan.
(g) Opportunities for Public Comment on Draft Offset Plans—(1) Generally. (i) The Administrator will give public notice of the following:
(A) The draft offset plan or disapproval of a draft offset plan and the opportunity for public comment and to request a public hearing; and
(B) Date, time, location, and procedures for any scheduled hearing on the draft offset plan or the disapproval of a draft offset plan.
(ii) Any public notice given under this section may be for the approval or disapproval of one or more draft offset plans.
(2) Methods. The Administrator will give the public notice required by this section by:
(i) Serving written notice on the following persons (except to the extent any such person has waived his or her right to receive such notice):
(A) The designated representative;
(B) The air pollution control agencies of affected States; and
(C) Any interested person.
(ii) Giving notice by publication in the
(3) Contents. All public notices issued under this part will contain the following information:
(i) Identification of the EPA office processing the approval or disapproval of the draft offset plan for which the notice is being given.
(ii) Identification of the designated representative for the affected source.
(iii) Identification of each affected source covered by the proposed offset plan.
(iv) The amount of excess emissions that must be offset and the date on which the allowances are proposed to be deducted.
(v) The address and office hours of a public location where the administrative record is available for public inspection and a statement that all information submitted by the designated representative and not protected as confidential pursuant to section 114(c) of the Act is available for public inspections as part of the administrative record.
(vi) For public notice under paragraph (g)(1)(i)(A) of this section, a brief description of the public comment procedures, including:
(A) A 30-day public comment period beginning the date of publication of the notice or, in the case of an extension or reopening of the public comment period, such period as the Administrator deems appropriate;
(B) The address where public comments should be sent;
(C) Required formats and contents for public comment;
(D) An opportunity to request a public hearing to occur not earlier than 15 days after public notice is given and the location, date, time, and procedures of any scheduled public hearing; and
(E) Any other means by which the public may participate.
(4) Extensions and Reopenings of the Public Comment Period. On the Administrator’s own motion, or on the request for any person, the Administrator may, at his or her discretion, extend or reopen the public comment period where he or she finds that doing so will contribute to the decision-making process by clarifying one or more significant issues affecting the draft offset plan or disapproval of a draft offset plan. Notice of any such extension or reopening will be given under paragraph (g)(1)(i)(A) of this section.
(h) Public comments—(1) General. During the public comment period, any person may submit written comments on the draft offset plan or disapproval of a draft offset plan.
(2) Form. (i) Comments shall be submitted in duplicate.
(ii) The submission shall clearly indicate the draft offset plan approval or disapproval to which the comments apply.
(iii) The submission shall clearly indicate the name of the commenter, his or her interest, and his or her affiliation, if any, to owners and operators of any unit covered by the proposed offset plan.
(3) Contents. Timely comments on any aspect of a draft offset plan or disapproval of a draft offset plan will be considered unless they concern issues that are not relevant, such as:
(i) The environmental effects of acid rain, acid deposition, sulfur dioxide, or nitrogen oxides generally; and
(ii) Offset plan approval procedures or actions on other proposed offset plans that are not relevant to approval or disapproval of the draft offset plan in question.
(4) Persons who do not wish to raise issues on the draft offset plan or denial of a draft offset plan, but who wish to be notified of any subsequent actions concerning such matter, may so indicate during the public comment period or at any other time. The Administrator will place their names on a list of interested persons.
(i) Opportunity for Public Hearing. (1) During the public comment period, any person may request a public hearing. A request for a public hearing shall be made in writing and shall state the issues proposed to be raised in the hearing.
(2) On the Administrator’s own motion or on the request of any person, the Administrator may, at his or her discretion, hold a public hearing whenever the Administrator finds that such a hearing will contribute to the decision-making process by clarifying one or more significant issues affecting the draft offset plan or disapproval of a draft offset plan. Public hearings will not be held on issues under paragraphs (h)(3) (i) and (ii) of this section.
(3) During a public hearing under this section, any person may submit oral or written comments concerning the draft offset plan or disapproval of a draft offset plan. The Administrator may set reasonable limits on the time allowed for oral statements and will require the submission of written summaries of each oral statement.
(4) The Administrator will assure that a record is made of the hearing.
(j) Response to Comments. (1) The Administrator will consider comments on the draft offset plan or disapproval of a draft offset plan received during the public comment period and any public hearing. The Administrator is not required to consider comments otherwise received.
(2) In approving or disapproving an offset plan, the Administrator will:
(i) Identify any draft offset plan provision or portion of the statement of basis that has been changed and the reasons for the change; and
(ii) Briefly describe and respond to relevant comments under paragraph (j)(1) of this section.
(k) Approval and Effective Date of Excess Emissions Offset Plans. (1) After the close of the public comment period, the Administrator will approve an offset plan requiring allowance deductions in an amount equal to the unit’s tons of excess emissions or disapprove an offset plan. The Administrator will serve a copy of any approved offset plan and the response to comments on the designated representative for the affected unit involved and serve written notice of the approval or disapproval of the offset plan on any persons who are entitled to written notice under paragraphs (g)(2)(i) (B) and (C) of this section or who submitted written or oral comments on the approval or disapproval of the draft offset plan. The Administrator will also give notice in the
(2) The Administrator will approve an offset plan requiring immediate deduction from the source’s compliance account of all allowances necessary to offset the excess emissions except to the extent the designated representative of the source demonstrates that such a deduction will interfere with electric reliability.
(3) Upon approval of the offset plan by the Administrator, the offset plan will be incorporated into the Acid Rain permit in accordance with § 72.84 (automatic permit amendment) and shall supersede any inconsistent provision of the permit.