[Federal Register Volume 66, Number 183 (Thursday, September 20, 2001)]
[Proposed Rules]
[Pages 48402-48406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23483]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AZ040-OPP; FRL-7058-7]
Clean Air Act Proposed Approval of Operating Permit Programs;
Pinal County Air Quality Control District, AZ
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions to the Pinal County Air
Quality Control District (Pinal or District) operating permit program.
The Pinal 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 Pinal operating permit program on October 30, 1996. See
61 FR 55910. The District consequently revised its program to satisfy
the conditions of the interim approval; however, the effective date of
the revisions was made contingent upon EPA approving the changes under
both 40 CFR part 70 and 40 CFR part 52. On September 5, 2001, the
District revised the rules again in order to make the effective date of
the rule changes contingent solely upon EPA approval under part 70. EPA
is proposing to approve the operating permit program contingent upon
Pinal submitting the rules that were adopted on September 5, 2001 as a
revision to its part 70 program.
DATES: Comments on the program revisions discussed in this proposed
action must be received in writing by October 22, 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 Pinal'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: Pinal County Air Quality Control
District, Building F, 31 North Pinal Street, Florence, Arizona 85232.
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 are the program changes that EPA is approving?
What is the effect of this proposed action?
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 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 Pinal operating permit program 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 Pinal program to receive
full approval. This Federal Register notice describes the changes that
have been made to the Pinal operating permit program to correct
conditions for full approval.
EPA is proposing full approval of the operating permits program
submitted by Pinal based on the revisions adopted as of September 5,
2001. These revisions satisfactorily address the program deficiencies
identified in EPA's October 30, 1996 rulemaking. See 61 FR 55910. In
addition, EPA is proposing to approve, as a title V operating permit
program revision, additional changes to the rules. The interim approval
issues, Pinal's corrections, and the additional changes are described
below under the section entitled ``What are the program changes that
EPA is approving?''
[[Page 48403]]
III. 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
Pinal's operating permit program contingent upon the correction a
number of interim approval issues. Each issue, along with Pinal's
correction, is described below.
1. Rule deficiency: Because the phrase ``including any fugitive
emissions of any such pollutants'' in the version of the rule in
Pinal's approved part 70 program could be read to modify only the 25
ton per year threshold, PCR Sec. 1-3-140(79)(b)(i) (the definition of
``major source'') did not clearly require that fugitive emissions of
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 hazardous air
pollutants 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 40 CFR section 70.2.
Rule change: The rule 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, or such lesser quantity as described in Chapter 7 of this
Code.'' (Emphasis added.)
2. Rule deficiency: The major source definition in Pinal's original
submittal was less inclusive than the definition in part 70 in that it
did not require that certain sources count fugitive emissions towards
major source thresholds. In order to correct this deficiency, EPA
required that Pinal revise PCR Sec. 1-3-140(79)(c) to delete sections
79(c)(ii), (iii), and (iv) and to add sources that belong to a category
regulated by a standard promulgated under section 111 or 112 of the
Act, but only with respect to those air pollutants that have been
regulated for that category, to the list of sources that must include
fugitive emissions when determining major source status as defined in
section 302(j) of the Act. See 40 CFR section 70.2.
Rule change: The rule has been revised as required by EPA.
3. Rule deficiency: Pinal's title V program provided certain
exemptions that are not allowed under part 70. In order to correct the
problem, EPA required that Pinal revise PCR Sec. 3-1-040(C)(1) to
require that the motor vehicles, agricultural vehicles, and fuel
burning equipment that are exempt from permitting shall not be exempt
if they are subject to any applicable requirements. See 40 CFR section
70.5(c).
Rule change: PCR 3-1-040(C) contains exemptions from the permitting
requirements. It has been modified so that, while a general exemption
for agricultural equipment used in normal farm operations exists, the
exemption does not apply to ``equipment that would be classified as a
source that would require a permit under title V of the Clean Air Act
(1990), or would be subject to a standard under 40 CFR Parts 60 or 61,
or any other applicable requirement.'' This language is consistent with
what other Arizona agencies did in their original submittals and we
found to be fully approvable. The rule no longer provides an exemption
for motor vehicles or fuel burning equipment.
4. Rule deficiency: Pinal's originally submitted program contained
flaws in its provisions regarding the timing of the submission of
permit applications. In order to correct the deficiencies, EPA required
that PCR Sec. 3-1-045(F)(1) be revised to require sources requiring
Class A (title V) permits to submit a permit application no later than
12 months after the date the Administrator approves the District
program. In addition, Pinal was required to revise PCR Sec. 3-1-050(C)
to include an application deadline for existing sources that become
subject to the requirement to obtain a Class A permit after the initial
phase-in of the program. This application deadline must be 12 months
from when the source becomes subject to the program (meets Class A
permit applicability criteria). See 40 CFR section 70.5(a)(1)(i).
Rule change: The district has corrected these deficiencies in the
following manner. PCR 3-1-045(F)(1) now requires that sources in
existence on November 3, 1993 not holding valid permits to operate or
installation permits must submit an application within 180 days of
receipt of notice from the Control Officer that a permit is required or
within 12 months of becoming subject to the Class A permitting
requirements, whichever is earlier. PCR3-1-050(C)(2) now specifies that
a timely application for an existing source that is not initially
required to obtain a title V permit but becomes subject at some later
time to be one that is submitted within 12 months after the source
becomes subject to title V.
5. 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.'' PCR Sec. 3-1-081(A)(10) included this
exact provision but also included a sentence that negated this
provision. EPA required that Pinal either delete or revise the negating
sentence to make the rule consistent with part 70. See 40 CFR section
70.6(a)(8).
Rule change: The negating sentence has been deleted from Pinal's
rule.
6. 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. Specifically, section
70.4(b)(12)(iii) provides that if a permit applicant requests it, the
permitting authority shall issue a permit 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,
established in the permit independent of otherwise applicable
requirements. PCR Sec 3-1-081(A)(14) provided for such permit
conditions without excluding modifications under title I of the Act and
changes that do not exceed the emissions allowable under the permit.
Pinal was required to revise PCR Sec. 3-1-081(A)(14) to clarify that
changes made under this provision may not be modifications under any
provision of title I of the Act and may not exceed emissions allowable
under the permit. In addition, this provision needed to be revised to
require that the permit terms and conditions provide for notice that
conforms to section 3-2-180(D) and (E) and that describes how the
increases and decreases in emissions will comply with the terms and
conditions of the permit. See 40 CFR section 70.4(b)(12).
Rule changes: PCR 3-1-081(A)(14)(d) now specifies that permits that
contain terms and conditions allowing for the trading of emissions for
the purpose of complying with a federally enforceable emission cap
established independent of otherwise applicable requirements ``shall
provide for notice that conforms with section 3-2-180(D) and (E) and
describes how the increases and decreases in emissions will comply with
the terms and conditions of the permit, as per 40 CFR Chapter 1, Part
70, section
[[Page 48404]]
70.4(b)(12).'' PCR 3-1-081(A)(14)(e) requires that ``changes made under
this subparagraph shall not include modifications under any provision
of title I of the Act and may not exceed emissions allowable under the
permit.''
7. Rule deficiency: In order to ensure that the requirement to
obtain a title V permit is enforceable, Pinal was required to revise
PCR Sec. 3-4-420 to provide that a conditional order that allows a
source to vary from the requirement to obtain a Class A permit may not
be granted to any source that meets the Class A permit applicability
criteria pursuant to PCR Sec. 3-1-040.
Rule change: 3-4-420(A) disqualifies a Class A permit holder from
eligibility for a conditional order and provides that a conditional
order cannot shield a Class B (non-title V) permit holder from an
obligation to apply for a title V permit. Section 3-4-420(B) only
allows conditional orders to be issued to Class B permit holders.
Therefore, unpermitted sources, Class A sources, and anyone holding a
Class B permit that is required to obtain a Class A permit cannot be
covered by a conditional order.
8. Rule deficiency: Pinal's original title V program submittal
allowed a source to operate within the limitations set forth in its
general permit application until the District took action on the
application. This is inconsistent with part 70. In order to correct
this deficiency, Pinal was required to revise PCR Sec. 3-5-490(C) to
provide that when an existing source that files a timely and complete
application seeking coverage under a general permit either as a renewal
of authorization under the general permit or as an alternative to
renewing an individual part 70 permit, the source must continue to
comply with the terms and conditions of the permit under which it is
operating, even if that permit expires, until the District issues or
denies the authorization to operate under the general permit. See 40
CFR section 70.4.(b)(10).
Rule change: PCR Sec. 3-5-490(C)(1) now requires that ``an existing
source that has filed a timely and complete application seeking
coverage under a general permit, either as a renewal of authorization
under the general permit or as an alternative to renewing an individual
permit shall continue to comply with the terms and conditions of the
permit under which it is operating, even if that permit expires, until
the Control Officer issues or denies the authorization to operate under
the general permit.''
9. Rule deficiency: Pinal's title V program allowed a source
seeking coverage under a general permit as an alternative to renewing
its existing permit to operate under the terms of the general permit
even when coverage had been denied. To correct this problem, EPA
required that Pinal revise PCR Sec. 3-5-490(C) to require that if an
existing source seeking coverage under a general permit as an
alternative to renewing an individual permit is denied coverage, the
source must continue to comply with the terms and conditions of its
individual source permit. In addition, Pinal was required to revise
Sec. 3-5-490(C) to clarify that, notwithstanding the 180-day permit
application deadline set by the District in its notification to the
source, a source that was denied coverage under the general permit may
not operate after the date that its individual permit expires unless it
has submitted a timely and complete application to renew that
individual permit in accordance with PCR Sec. 3-1-050(C)(2). See 40 CFR
sections 70.7(d) and 70.4(b)(10).
Rule changes: PCR Sec. 3-5-490(C)(2) now requires that ``[i]f the
application from an existing source seeking coverage as an alternative
to renewing an individual permit is denied, the source shall continue
to comply with the terms and conditions of its individual source
permit.'' PCR Sec. 3-5-490(C)(2) specifies that a source that was
denied coverage under a general permit may continue to operate under
its individual permit provided it has filed a timely and complete
application prior to the expiration of the source's individual permit.
10. Rule deficiency: In order to resolve some internal
inconsistencies in Pinal's regulations PCR Sec. 3-5-550(C) needed to be
revised to clarify that if the Control Officer revokes a source's
authorization to operate under a general permit and the source submits
a timely and complete application for an individual source permit as
required by the Control Officer, it may continue to operate under the
terms of the general permit until the District issues or denies the
individual source permit.
Rule change: PCR Sec. 3-5-550(C) has been revised to correct the
deficiency as follows: ``A source authorized to operate under a general
permit may operate under the terms of the general permit until the
earlier date of expiration of the general permit or 180 days after
receipt of the notice of termination of any general permit. If the
operator submits a timely and complete application for an individual
permit in accordance with sections 3-1-050, 3-1-055, and 3-5-490, while
still authorized to operate under the terms of its general permit, the
applicant may continue to operate under authority of the underlying
general permit until the Control Officer issues or denies the
individual permit.''
B. Other Changes
EPA is also taking action to approve, as a title V operating permit
program revision, additional program changes made by Pinal since the
interim approval was granted. Some of the rules Pinal has submitted for
EPA approval incorporate changes other than those described above. We
have evaluated the additional changes and find that they are consistent
with part 70 and are therefore including those changes in our proposed
approval. These changes are described below:
1. PCR 3-1-040. Paragraph B.2., which spells out applicability
criteria for non-title V permits, has been modified. Part 70 does not
address permit requirements for non-title V sources, and so this change
is not relevant to the approval of this rule pursuant to part 70. A new
paragraph D. was also added to the rule. This new provision specifies
that construction or reconstruction of a major source of HAP renders
the source subject to MACT standards promulgated by EPA, or, where no
standard has been promulgated, to a case-by-case MACT determination
pursuant to 40 CFR sections 63.40 through 63.44. This change is
consistent with part 70 and is therefore approvable.
2. PCR 3-1-045. Paragraph E. of the version of the rule originally
approved by EPA has been deleted. This paragraph specified the fee
schedule that sources would be subject to prior to EPA's approval of
the District's title V program and is no longer necessary.
3. PCR 3-1-050. Paragraph C of this rule, which specifies the
criteria an application must meet in order to be considered timely, has
been changed to eliminate a reference to a Rule 3-1-047. Whereas the
originally approved version of the rule provided that, ``[u]nless
otherwise required by 3-1-045 or 3-1-047, a timely application is * *
*'' the modified provision references only 3-1-045. Because 3-1-047 was
never an approved element of the part 70 program and was not relied
upon to meet part 70 requirements, the elimination of this reference
has no effect on the approvability of this rule pursuant to part 70.
4. PCR 3-1-081. Consistent with part 70, paragraph B of this rule
provides that all conditions of a permit, except those that are
specifically designated as not federally enforceable, are enforceable
by the Administrator and citizens under the Clean Air Act. Paragraph
B.2. has been modified to specify that any provision that a source
[[Page 48405]]
elects to make federally enforceable pursuant to the District's
synthetic minor permitting rule may not be designated as non-federally
enforceable. This change is consistent with part 70 and is therefore
approvable.
IV. What Is the Effect of This Proposed Action?
Pinal previously adopted rule revisions that addressed the issues
identified in EPA's interim approval and described above. On September
5, 2001, the District adopted a revision to the effective date of those
rules. EPA action granting full approval to Pinal's title V program
must be completed by December 1, 2001 to avoid the imposition of the
federal operating permit program, part 71. In order to provide EPA
adequate time to undertake notice and comment rulemaking on the
District's title V program, Pinal submitted a copy of its revised rules
to EPA on August 6, 2001. The District requested that we propose action
on those rules prior to the formal submittal of the District's changes
regarding the effective date of the rules. The rules we are proposing
for approval today are those the District adopted on September 5, 2001.
Table 1 lists the rules addressed by this proposal with the dates that
they were adopted and when we anticipate they will be submitted by
Pinal.
Table 1
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Anticipated
Rule# Rule title Adoption date submittal date
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PCR 1-3-140 (79)........................... Definitions (definition of 9/5/01 9/30/01
stationary source only).
PCR 3-1-040................................ Applicability and Classes of 9/5/01 9/30/01
Permits.
PCR 3-1-045................................ Transition from Installation and 9/5/01 9/30/01
Operating Permit Program.
PCR 3-1-050................................ Permit Application Requirements.... 9/5/01 9/30/01
PCR 3-1-081................................ Permit Conditions.................. 9/5/01 9/30/01
PCR 3-4-420................................ Standards of Conditional Orders.... 9/5/01 9/30/01
PCR 3-5-490................................ Application for Coverage under a 9/5/01 9/30/01
General Permit.
PCR 3-5-550................................ Revocations of Authority to Operate 9/5/01 9/30/01
under a General Permit.
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Should Pinal submit these rules to EPA as a title V program
revision in the form in which they were adopted on September 5, 2001,
Pinal 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 Pinal operating permit program contingent on the
submittal of the rules listed above.
Request for Public Comment
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the Pinal 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 22, 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
(Public Law 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 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
[[Page 48406]]
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: September 5, 2001.
Mike Schulz,
Acting Regional Administrator, Region IX.
[FR Doc. 01-23483 Filed 9-19-01; 8:45 am]
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