[Federal Register Volume 66, Number 175 (Monday, September 10, 2001)]
[Proposed Rules]
[Pages 46972-46976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22623]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AZ041-OPP; FRL-7052-2]
Clean Air Act Proposed Full Approval of Operating Permit
Programs; Pima County Department of Environmental Quality, Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve revisions to the Pima County
Department of Environmental Quality (PDEQ or District) operating permit
program. The PDEQ operating permit program was submitted in response to
the directive in the 1990 Clean Air Act (CAA) Amendments that
permitting authorities develop, and submit to EPA, programs for issuing
operating permits to all major stationary sources and to certain other
sources within the permitting authorities' jurisdiction. EPA granted
interim approval to the PDEQ operating permit program on October 30,
1996. The District has revised its program to satisfy the conditions of
the interim approval. However, PDEQ must also revise its rules to
incorporate the adoption date of the rule it has incorporated by
reference. Therefore, in addition to proposing approval of several
rules already submitted by PDEQ, EPA is proposing in this rulemaking
action to approve two rules in parallel with the District's adoption of
revised rules that will add reference dates for materials incorporated
by reference. We are proposing to approve rules that were submitted by
PDEQ on May 28, 1998 and those that were public noticed by the District
on August 9, 2001 and are scheduled for an adoption hearing on
September 11, 2001.
DATES: Comments on the program revisions discussed in this proposed
action must be received in writing by October 10, 2001.
ADDRESSES: Written comments on this action should be addressed to
Gerardo Rios, Acting Chief, Permits Office, Air Division (AIR-3), EPA
Region IX, 75 Hawthorne Street, San Francisco, California, 94105. You
can inspect copies of PDEQ's submittal and other supporting
documentation relevant to this action during normal business hours at
the Air Division of EPA Region 9, 75 Hawthorne Street, San Francisco,
California, 94105. You may also see copies of the submitted title V
program at the following location: Pima County Department of
Environmental Quality, 130 West Congress Street, Tucson, Arizona 85701.
FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, Permits
Office (AIR-3), U.S. Environmental Protection Agency, Region IX, (415)
744-1252 or [email protected].
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:
What is the operating permit program?
What is EPA's proposed action?
What is parallel processing?
What are the program changes that EPA is approving?
What is the effect of this proposed action?
Are there other issues with this program?
I. What Is the Operating Permit Program?
The CAA Amendments of 1990 required all state and local permitting
authorities to develop operating permit programs that met certain
federal criteria. In implementing the operating permit programs, the
permitting authorities require certain sources of air pollution to
obtain permits that contain all applicable requirements under the
[[Page 46973]]
CAA. The focus of the operating permit program is to improve compliance
by issuing each source a permit that consolidates all of the applicable
CAA requirements into a federally enforceable document. By
consolidating all of the applicable requirements for a facility, the
source, the public, and the permitting authorities can more easily
determine what CAA requirements apply and how compliance with those
requirements is determined.
Sources required to obtain an operating permit under this program
include ``major'' sources of air pollution and certain other sources
specified in the CAA or in EPA's implementing regulations. For example,
all sources regulated under the acid rain program, regardless of size,
must obtain permits. Examples of major sources include those that have
the potential to emit 100 tons per year or more of volatile organic
compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides
(NOX), or particulate matter (PM10); those that
emit 10 tons per year of any single hazardous air pollutant
(specifically listed under the CAA); or those that emit 25 tons per
year or more of a combination of hazardous air pollutants (HAPs). In
areas that are not meeting the national ambient air quality standards
for ozone, carbon monoxide, or particulate matter, major sources are
defined by the gravity of the nonattainment classification. For
example, in ozone nonattainment areas classified as ``serious,'' major
sources include those with the potential of emitting 50 tons per year
or more of volatile organic compounds or nitrogen oxides.
II. What Is EPA's Proposed Action?
Because the operating permit program originally by PDEQ
substantially, but not fully, met the criteria outlined in the
implementing regulations codified at 40 Code of Federal Regulations
(CFR) part 70, EPA granted interim approval to the program in a
rulemaking published on October 30, 1996 (61 FR 55910). The interim
approval notice described the conditions that had to be met in order
for the PDEQ program to receive full approval. Today's Federal Register
action describes the changes that PDEQ has made to its operating permit
program to correct conditions and obtain full approval.
EPA is proposing full approval of the operating permits program
submitted by PDEQ based on the revisions submitted on May 28, 1998 and
those proposed for adoption by Pima on August 9, 2001. These revisions
satisfactorily address the program deficiencies identified in EPA's
October 30, 1996 rulemaking. See 61 FR 55910. EPA is also proposing to
approve, as a title V operating permit program revision, additional
changes to the rules that have been submitted to correct interim
approval issues. The interim approval issues, PDEQ's corrections, and
the additional changes are described below under the section entitled,
``What are the program changes that EPA is approving?''
III. What Is Parallel Processing?
Parallel processing refers to concurrent state and federal
rulemaking actions. Under this procedure, EPA publishes our proposed
action and initiates our 30-day comment period at the same time the
District is undergoing its rulemaking processes.
EPA has reviewed the changes that the District expects to adopt
formally in the near future. The rulemaking process currently underway
in Pima County will not change the substance of the rules, it will
merely add a reference date to clarify which version of the material
incorporated by reference is in effect. The District's public comment
period for the revision to include a reference date began on August 9,
2001. The substantive changes to the rules have already been adopted by
the District, including an opportunity for public comment. The comment
period for EPA's proposed action, which would approve both the text of
the rules as well as the addition of a reference date for the material
incorporated by reference into the rules, closes on October 10, 2001.
We will finalize this action after PDEQ adopts the changes in
substantially the same form as proposed and submits them to EPA as a
revision to the District's title V program unless we receive comments
that change our assessment that the rules comply with the relevant CAA
requirements.
IV. What Are the Program Changes That EPA Is Approving?
A. Corrections to Interim Approval Issues
In its October 30, 1996 rulemaking, EPA made full approval of
PDEQ's operating permit programs contingent upon the correction a
number of interim approval issues. Each issue, along with the
District's correction, is described below.
1. Rule deficiency: PCC Sec. 17.04.340(133)(b)(i) (the definition
of ``major source'') did not clearly require that fugitive emissions of
hazardous air pollutants (HAPs) be included when determining a source's
potential to emit. In order to correct the deficiency, the definition
needed to be revised so that it would be clear that fugitive emissions
of HAPs must be considered in determining whether the source is major
for purposes of both the 10 ton per year and 25 ton per year HAP major
source thresholds. See Sec. 70.2.
Rule change: The definition of major source, which has been
recodified as 17.04.340 (122), has been revised to correct the
deficiency. It now defines a major source under section 112 of the CAA
to include, ``* * * for pollutants other than radionuclides, any
stationary source that emits, or has the potential to emit, in the
aggregate and including fugitive emissions, 10 tons per year or more of
any hazardous air pollutant which has been listed pursuant to section
112(b) of the CAA, 25 tons per year of any combination of such
hazardous air pollutants * * *.'' (Emphasis added.)
2. Rule deficiency: PDEQ's rules did not clearly specify when a
source became subject to title V. EPA required the District to revise
PCC Sec. 17.12.150(B) and Sec. 17.12.150(G)(1) to correct this problem.
Rule change: The text of PCC 17.12.150 was removed and replaced by
an incorporation by reference of AAC R18-2-303, a rule that was
submitted as part of the State of Arizona's (ADEQ's) title V program.
EPA found the version of R18-2-303 effective on November 15, 1993 and
submitted as part of the State's title V program to be approvable. In
terms of substance, the incorporation of AAC R18-2-303 resolves the
interim approval issue. Notwithstanding the approvability of the
substance of Pima's rule, it does not include a reference date for the
material incorporated by reference. EPA believes that the
identification of the version of materials incorporated by reference is
critical to enforceability and clarity, and therefore finds this change
to be unapprovable; however, Pima has undertaken a rulemaking to
correct this problem and plans to submit the revised rule to EPA by
September 28, 2001. We are therefore proposing to approve this change
concurrent with Pima's rulemaking to add a reference date.
Alternatively, if Pima does not revise and resubmit the rule as
described above, we will be unable to grant full approval to the Pima
title V program. If we do not fully approve the District's title V
program by December 1, 2001, PDEQ will lose its authority to implement
its title V operating permits program and the federal operating permit
program (part 71) will be in effect.
3. Rule deficiency: EPA required that the District revise PCC Sec.
17.12.160(E)(7) to provide that only emissions units that are not
subject to unit-specific applicable requirements
[[Page 46974]]
may qualify for treatment as insignificant emissions units. See
Sec. 70.5(c).
Rule changes: Pima has revised its provisions regarding
insignificant activities to be consistent with those of ADEQ, which EPA
found fully approvable in our initial program actions. PCC 17.12.160
was amended to be identical to AAC R18-2-304 and now requires that
insignificant activities be listed in the application. The definition
of insignificant activities (PCC 17.04.340.109) has been amended to be
identical to ADEQ's definition (Rule R18-2-101.54). For additional
analysis of the insignificant activity issue, see 61 FR 55911; October
30, 1996.
4. Rule deficiency: Section 70.6(a)(8) requires that title V
permits contain a provision 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.'' PCC Sec. 17.12.180(A)(10) included this
exact provision but also included a sentence that negated this
provision. EPA required that PDEQ either delete or revise the negating
sentence to make the rule consistent with part 70.
Rule change: The negating sentence has been deleted from the
District's rule.
5. Rule deficiency: Section 70.4(b)(12) provides that sources are
allowed to make 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. PCC 17.12.180(A)(14) provided for
such permit conditions but did not restrict the allowable changes to
those that are not modifications under title I of the Act and those
that do not exceed the emissions allowable under the permit. Pima was
required to revise PCC 17.12.180(A)(14) to add these conditions.
Rule change: Pima has corrected this deficiency by revising PCC
17.12.180(A)(14) to include the following language: ``Changes made
under this paragraph (14) shall not include modification under any
provision of Title I of the Act and may not exceed emissions allowable
under the permit.''
6. Rule deficiency: EPA required that the District revise PCC Sec.
17.12.340 to include a provision for giving public notice ``by other
means if necessary to assure adequate notice to the affected public.''
See Sec. 70.7(h)(1).
Rule change: Pima has submitted a new rule (Rule 17.12.345) that
incorporates by reference A.R.S 49-104(B)(3) as amended in 1995. This
rule provides that, ``[t]he department, through the Director, shall * *
* utilize any medium of communication, publication and exhibition when
disseminating information, advertising and publicity in any field of
its purposes, objectives or duties.''
B. Other Changes
Some of the rules the District submitted to EPA for approval
incorporate changes other than those necessary to correct interim
approval deficiencies. In this action, EPA is also proposing to
approve, as a title V operating permit program revision, those
additional program changes made by PDEQ since the interim approval was
granted. We have evaluated the additional changes and, with one
exception that is described in detail below, find that they are
consistent with part 70. We are including the additional changes in our
proposed approval.
Paragraph (c) of PDEQ's definition of major source (17.04.340(122))
lists source categories that must count fugitives. Subparagraph xxvii
has been modified to read: ``All other stationary source categories
regulated by a standard promulgated as of August 7, 1980 under section
111 or 112 of the Act, but only with respect to those air pollutants
that have been regulated for that category.'' Emphasis added. The
addition of this 1980 cutoff date restricts the types of sources that
are required to count fugitives towards the major source threshold.
This is inconsistent with part 70 and is not approvable. EPA has,
however, proposed to revise the major source definition to incorporate
the 1980 cutoff. We are therefore proposing to approve the District's
definition of major source provided that EPA finalizes revisions to the
part 70 rule that will make the change approvable. Alternatively, if
EPA does not finalize the changes to part 70 described above, Pima's
major source definition will conflict with the operative version of
part 70 and we will be unable to approve it. The remedy to Pima's
interim approval issue regarding the counting of fugitive emissions of
hazardous air pollutants resides within that same definition, so if we
are barred from approving Pima's new major source definition because of
the 1980 date, we will be unable to grant full approval to PDEQ's title
V program. As a result, Pima would lose its authority to implement its
title V operating permits program on December 1, 2001, and part 71 will
be in effect.
PDEQ made a number of additional changes to the rules that
implement their part 70 program, many of which were non-substantive
(e.g., recodifications) or irrelevant (e.g., changes to requirements
applying to non-title V sources). A general description of the more
substantive changes follows. For more detail on all of the changes,
refer to section B of the technical support document.
The District's permit application and processing procedures were
modified to specify that an application will not be considered complete
if the Control Officer disputes a source's claim of confidentiality.
PDEQ's permit content provisions were also modified. Prompt reporting
of deviations is now defined as notice that is provided within two
working days. A new paragraph explicitly restricts emissions to units
for which emissions are quantifiable or for which there are replicable
procedures to enforce the emission trades. The list of conditions that
must be included in a title V permit has been expanded to include
``such other terms and conditions as are required by the Act, A.R.S.
Title 49, Chapter 3, Articles 1 and 2 and 3, and the rules adopted
pursuant thereto.''
The permit content provisions have also been modified to redefine
the terms and conditions in a title V permit that are enforceable by
the Administrator and citizens under the Act. It generally requires
that the Control Officer designate as not federally enforceable any
terms and conditions that are not required under the Act or any of its
applicable requirements. It also includes an independent mandate that
terms and conditions that are entered into voluntarily are enforceable
by citizens and the Administrator under the Clean Air Act. The rule was
also modified to require that all permits include a condition that
specifies that noncompliance with any federally enforceable requirement
in a permit constitutes a violation of the Clean Air Act. It had
previously stated that any permit noncompliance constitutes a violation
of the Act. Finally, the emergency provisions have been modified so
that they are now entirely consistent with Sec. 70.6(g).
V. What Is the Effect of This Proposed Action?
Pima has adopted rule revisions that address the issues identified
in EPA's interim approval and has made additional revisions to its
program as described above. The District is currently in the process of
adopting revisions that will specify the version of the materials they
have incorporated by
[[Page 46975]]
reference. PDEQ has submitted a copy of its revised rules to EPA and
has requested that we propose action on those rules currently being
revised during the period that the District is accepting comment on the
addition of a reference date for the rules that were incorporated by
reference. The rules proposed for approval today are those that were
previously submitted along with those for which the District comment
period commenced on August 9, 2001. Table 1 lists the rules addressed
by this proposal with the dates that they were (or are anticipated to
be) adopted and submitted by PDEQ.
Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
Rule # Rule title Adopted Submitted
----------------------------------------------------------------------------------------------------------------
17.04.340.A. (122)......... Words, phrases, and terms-- Scheduled for adoption on Submittal anticipated by 9/
definition of ``Major 9/11/01. 28/01
source'' only.
17.04.340.A. (109)......... Words, phrases, and terms-- 4/7/98.................... 5/28/98
definition of
``Insignificant activity''
only.
17.12.150.................. Transition from Scheduled for adoption on Submittal anticipated by 9/
installation and operating 9/11/01. 28/01
permit program to unitary
permit program.
17.12.160.................. Permit application 4/7/98.................... 5/28/98
processing procedures.
17.12.180.................. Permit contents............ 4/7/98.................... 5/28/09
17.12.345.................. Public notification........ 4/7/98.................... 5/28/98
----------------------------------------------------------------------------------------------------------------
As noted above, PDEQ has already adopted and submitted most of the
required changes. Should the District adopt Rules 17.12.150 and
17.04.340.A.(122) in the form in which they were noticed and submit
them to EPA as a title V program revision, Pima will have fulfilled the
conditions of the interim approval granted on October 30, 1996 (61 FR
55910). EPA is therefore proposing full approval of the PDEQ operating
permit program, contingent on the adoption and submittal of minor
revisions to Rules 17.12.150 and 17.04.340.A.(122), and contingent on
EPA finalizing its proposed change to the part 70 definition of major
source. In addition, we are proposing to approve, as a title V
operating permit program revision, additional changes to PDEQ's rules,
as described in section IV.B. of this document.
VI. Are There Other Issues With This Program?
On May 22, 2000, EPA promulgated a rulemaking that extended the
interim approval period of 86 operating permits programs until December
1, 2001 (65 FR 32035). The action was subsequently challenged by the
Sierra Club and the New York Public Interest Research Group (NYPIRG).
In settling the litigation, EPA agreed to publish a document in the
Federal Register that would alert the public that they may identify and
bring to EPA's attention alleged programmatic and/or implementation
deficiencies in Title V programs and that EPA would respond to their
allegations within specified time periods if the comments were made
within 90 days of publication of the Federal Register document.
One citizens' group commented on what it believes to be
deficiencies with respect to PDEQ's title V program. EPA takes no
action on those comments in today's action and will respond to them by
December 1, 2001. As stated in the Federal Register notice published on
December 11, 2000, (65 FR 77376) EPA will respond by December 1, 2001
to timely public comments on programs that have obtained interim
approval, and EPA will respond by April 1, 2002 to timely comments on
fully approved programs. We will publish a notice of deficiency (NOD)
when we determine that a deficiency exists, or we will notify the
commenter in writing to explain our reasons for not making a finding of
deficiency. An NOD will not necessarily be limited to deficiencies
identified by citizens and may include any deficiencies that we have
identified through our program oversight.
Request for Public Comment
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the Pima submittal and other supporting
documentation used in developing the proposed full approval are
contained in docket files maintained at the EPA Region 9 office. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this proposed full approval. The primary purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and (2) to serve as the record in case of judicial review. EPA
will consider any comments received in writing by October 10, 2001.
Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this proposed action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities because it merely approves state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. This rule does not contain any
unfunded mandates and does not significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4) because it proposes to approve pre-existing
requirements under state law and does not impose any additional
enforceable duties beyond that required by state law. This rule also
does not have tribal implications because it will not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000). This rule also does not have Federalism
implications because it will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and
[[Page 46976]]
responsibilities among the various levels of government, as specified
in Executive Order 13132, ``Federalism'' (64 FR 43255, August 10,
1999). The rule merely proposes to approve existing requirements under
state law, and does not alter the relationship or the distribution of
power and responsibilities between the State and the Federal government
established in the Clean Air Act. This proposed rule also is not
subject to Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) or Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), because it is not a significantly regulatory
action under Executive Order 12866. This action will not impose any
collection of information subject to the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., other than those previously
approved and assigned OMB control number 2060-0243. For additional
information concerning these requirements, see 40 CFR part 70. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
In reviewing State operating permit programs submitted pursuant to
Title V of the Clean Air Act, EPA will approve State programs provided
that they meet the requirements of the Clean Air Act and EPA's
regulations codified at 40 CFR part 70. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a State
operating permit program for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews an operating
permit program, to use VCS in place of a State program that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: August 30, 2001.
Sally Seymour,
Acting Regional Administrator, Region IX.
[FR Doc. 01-22623 Filed 9-7-01; 8:45 am]
BILLING CODE 6560-50-U