01-26421. Clean Air Act Proposed Full Approval of Operating Permit Program; Ventura County Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA proposes to fully approve the operating permit program of the Ventura County Air Pollution Control District (District). The 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.

On November 1, 1995, EPA granted interim approval to the District's operating permit program. The District has revised its operating permit program (Rule 33) to satisfy the conditions of the interim approval and this action proposes approval of these revisions made since the interim approval was granted.

DATES:

Written comments must be received by November 19, 2001.

ADDRESSES:

Written comments on this action should be addressed to Gerardo Rios, Permits Office, Air Division (AIR-3), EPA Region IX, 75 Hawthorne Street, San Francisco, California, 94105. You can inspect copies of the District's submittals, and other supporting documentation relevant to this action, during normal business hours at Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105.

You may also see copies of the submitted Title V program at the following locations:

• California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814.
• Ventura County Air Pollution Control District: 669 County Square Drive, Ventura, CA 93003.

You may review the District rules by retrieving them from the California Air Resources Board (ARB) website. The location of the District rules is http://arbis.arb.ca.gov/​drdb/​ven/​cur.htm.

FOR FURTHER INFORMATION CONTACT:

Gerardo Rios, EPA Region IX, at [phone] ([e-mail]) or Nahid Zoueshtiagh at [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents:

I. District's Part 70 Permits

A. What Is the Operating Permit Program?

B. What Is Being Addressed in This Document?

C. Are There Other Issues With the Program?

D. What Are the Program Changes That EPA Is Proposing To Approve?

E. What Is Involved in This Proposed Action?

II. Request for Public Comment

I. District's Part 70 Permits

A. What Is the Operating Permit Program?

Title V of the Clean Air Act 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 Clean Air Act (CAA). The focus of the operating permit program is to improve enforcement 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 ( NO_X), or particulate matter (PM₁₀); those that emit 10 tons per year or more of any single hazardous air pollutant (HAP) listed under the CAA; or those that emit 25 tons per year or more of a combination of HAPs. In areas that are not meeting the National Ambient Air Quality Standards (NAAQS) for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the non-attainment classification.

Ventura County is classified as a severe non-attainment area for ozone. Therefore, for reactive organic compounds or nitrogen oxides, the threshold for obtaining an operating permit is 25 tons per year or more of either reactive organic compounds or nitrogen oxides. Ventura County meets the NAAQS for all other pollutants.

B. What Is Being Addressed in This Document?

Where an 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 contingent on the state revising its program to correct any deficiencies. Because the District's operating permit program substantially, but not fully, met the requirements of part 70, EPA granted interim approval to the District's program on November 1, 1995.

This Federal Register document describes the changes that the District has made to its Rule 33 (District's operating permit program) since interim approval was granted.

C. Are There Other Issues With the 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.

EPA received a letter from one person who commented on what he believes to be deficiencies with respect to title V programs in California. We are not taking any actions on those comments in today's action and will respond to them by December 1, 2001. As stated in the Federal Register document 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. A NOD will not necessarily be limited to deficiencies identified by citizens and may include any deficiencies that we have identified through our program oversight.

D. What Are the Program Changes That EPA Is Proposing To Approve?

As discussed above, EPA granted final interim approval on November 1, 1995 (60 FR 55460) to the District's title V program. As stipulated in that rulemaking, full approval of the District operating permit program was made contingent upon satisfaction of certain conditions. In response to EPA's interim approval action, the District revised its Rule 33 (operating permit program) to remove the deficiencies identified by EPA. The District held a workshop (November 30, 2000), made the draft revised rule available to public review and comments (March/April 2001), and adopted the revisions on April 10, 2001. The revised program was submitted to EPA on May 21, 2001. We have included below a discussion of each of the interim approval deficiency issues (as enumerated and explained in EPA's proposed action in 1994 (see 59 FR 60104)), our conditions for correction, and a summary of how the District has corrected each of these deficiency issues. The Technical Support Document (TSD) for this action includes the District's submittal and details of the revisions made.

Issue a. Insignificant activities—Rules 33.2 and 23 provide the framework for Ventura's insignificant activities provisions. For its program to be fully approvable, Ventura needed to provide a demonstration that activities classified as “insignificant” are truly insignificant and are not likely to be subject to an applicable requirement. Alternatively, the District could restrict insignificant activities to those that are not likely to be subject to an applicable requirement and emit less than District-established emission levels. The District needed to establish separate emission levels for HAPs and for other regulated pollutants and demonstrate that these emission levels are insignificant compared to the level of emissions from and type of units that are required to be permitted or subject to applicable requirements. (Reference: 40 CFR 70.4(b)(2) and 70.5(c))

District's response to issue a. The District revised its Rule 33 to add a new term under its Rule 33.1.10. The new term defines and specifies “Insignificant Activity” to address EPA's deficiency issue. The revision satisfies the part 70 requirements.

Issue b. Revision process for significant changes to monitoring terms and conditions—the definitions of “minor permit modification” and “significant part 70 permit modification” in Rule 33.1 needed to be revised to ensure that significant changes to existing monitoring permit terms or conditions are processed as significant permit modifications. (Reference: 40 CFR 70.7(e)(4)).

District's response to Issue b. The District revised its Rule 33 to address EPA's requirement. The newly adopted Rule 33.1.11.d states that the modification does not involve any significant change to any existing federally-enforceable monitoring term or condition or involve any relaxation of reporting or recordkeeping requirements in the part 70 permit.

Issue c. Operation of modifications prior to permit revision—except in the case when a federally enforceable permit condition would prohibit it, Ventura's Rule 33.9 A.1. allowed sources to make significant modifications prior to receiving a part 70 permit revision. In order to be consistent with part 70, Ventura was required to revise its rule so that the only changes that may be operated prior to receiving a part 70 permit revision are those modifications subject to section 112(g) and title I, parts C and D of the Act, and those that are not prohibited by the existing part 70 permit. Under part 70, if a proposed change does not meet these criteria, the source may not make the change until the permitting authority has revised the source's part 70 permit. (Reference 40 CFR 70.5(a)(1)(ii)).

District's response to Issue c. The District replaced the last paragraph of its Rule 33.9.A.1 with the following: “The protection granted by this subsection for a significant part 70 permit modification shall not be applicable unless the modification was subject to section 112(g), or part C or D of title I of the federal Clean Air Act and the existing part 70 permit for the stationary source does not prohibit the modification. If either of these conditions is not met, the modified portion of the stationary source shall not be operated until the modified part 70 permit is issued.”

Issue d. Public notice—VCAPCD needed to revise Rule 33.7 B. to include notice “by other means if necessary to assure adequate notice to the affected public.” (Reference: 40 CFR 70.7(h)(1)).

District's response to Issue d. The District added a new section to its Rule 33.7. This new section (33.7.B.2.g) requires the District to provide notice by other means if necessary to assure adequate notice to the affected public.

Issue e. Permit Content—Ventura's permit content requirements are found in Rules 33.3 and 33.9. At the time of interim approval, these regulatory provisions adequately addressed nearly all of the part 70 requirements. Certain elements (e.g., §§ 70.6(a)(3)(ii)(B) and 70.6(a)(6)(i)), are more fully detailed in the General Part 70 Permit conditions, which were submitted in Appendix B.2.b. of Ventura's part 70 program submittal. Ventura needed to establish a binding requirement that the General Part 70 Permit Conditions will be included in all part 70 permits. Ventura could accomplish this by modifying its regulation to reference the general conditions that were submitted and approved by EPA, or by more fully addressing the conditions within the regulation. (Reference: 40 CFR 70.6(a)).

District's response to Issue e. The District significantly revised Sections A and B of its Rule 33.3 to incorporate EPA's requirements. For example, Rule 33.3.A.3 now requires conditions that establish all applicable emissions monitoring and analysis procedures, emissions test methods or continuous monitoring equipment required under all applicable requirements, and related recordkeeping and reporting requirements. It also requires, as necessary, conditions concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods. Further, all applicable recordkeeping and monitoring requirements must include details such as date, place and time of sampling or measurements.

Issue f. Recordkeeping requirements—VCAPCD needed to revise the permit content requirements of Rule 33.3 to provide adequate specificity with regard to the applicable recordkeeping requirements. (Reference: 40 CFR 70.6(a)(3)(C)(ii)).

District's response to Issue f. The District incorporated all of the above requirements in Rule 33.3.A.3. For example, the rule now specifies that permits incorporate all applicable data such as:

• Date, place as defined in the permit, and time of sampling or measurements;
• Date(s) analyses were performed;
• Company or entity that performed the analyses;
• Analytical techniques or methods used;
• Results of such analyses; and
• Operating conditions as existing at the time of sampling or measurements.

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 part 70 permit.

Issue g. Emissions trading under applicable requirements—Ventura County needed to add emissions trading provisions consistent with § 70.6(a)(10), which requires that trading must be allowed where an applicable requirement provides for trading increases and decreases without a case-by-case approval. (Reference 40 CFR 70.6(a)(10)).

District's response to Issue g. The District included EPA's requirement in its Rule 33.3.A.6, which states that: “Applicable conditions for allowing trading under a voluntary emission cap accepted by the permittee, and for allowing trading under applicable requirements to the extent that such requirements provide for trading emissions without a case by case approval of each trade. Such conditions shall include all terms required under section A of this rule to determine compliance and shall meet all applicable requirements.”

Issue h. Compliance schedule—At the time of interim approval, Rule 33.3 B.2, which requires that a schedule of compliance be included in the permit, did not create an explicit link with Rule 33.9 B.4., which details the contents of a compliance schedule. Thus, VCAPCD needed to revise Rule 33.3's permit content requirements to ensure that all elements of the compliance schedule under § 70.5(c) are incorporated into the permit. (Reference: 40 CFR 70.6(c)(3), 70.6(c)(4)).

District's response to Issue h. The District revised its Rule 33.3 to include EPA's requirements. Rule 33.3.A.8 now requires that if the stationary source is not in compliance with any federally-enforceable requirement, it must have a schedule of compliance that is approved by the District Hearing Board, meets all requirements of Rule 33.2.A.7, and includes a condition that requires submittal of a progress report on the schedule of compliance at least semiannually.

Issue i. EPA notification of operational flexibility changes—Rule 33.5.D needed to be revised to incorporate EPA notification of changes made under the operational flexibility provisions, either by providing for it within the regulation, or by making the general permit conditions, which do specify EPA notification, required elements of each permit. (Reference 40 CFR 70.4(b)(14)(ii)).

District's response to Issue i. The District revised the first paragraph of its Rule 33.4.D to reflect EPA's requirements. The revised paragraph is as follows: “The owner or operator of any stationary source required to obtain a part 70 permit will be allowed to contravene an express part 70 permit condition with 30 days written notification to both EPA and the District unless the District objects in writing to the change within the 30 day notice period.”

Issue j. State-wide agricultural permitting exemption—one of EPA's conditions for full title V program approval was the California Legislature's revision of the Health and Safety Code to eliminate the provision that exempts “any equipment used in agricultural operations in the growing of crops or the raising of fowl or animals” from the requirement to obtain a permit. See California Health and Safety Code section 42310(e). Even though the local Districts have, in many cases, removed the title V exemption for agricultural sources from their own rules, the Health and Safety Code has not been revised to eliminate this provision.

In evaluating the impact of the Health and Safety Code exemption, EPA believes there are a couple of key factors to consider. First, many post-harvest activities are not covered by the exemption and, thus, are still subject to title V permitting. For example, according to the California Air Resources Board (CARB), the Health and Safety Code exemption does not include activities such as milling and crushing, or canning or cotton ginning operations. Activities such as these are subject to review under the State's title V programs. See letter from Michael P. Kenny, Executive Officer, California Air Resources Board, to Jack Broadbent, Director, Air Division, U.S. EPA Region 9, dated September 19, 2001. In addition, since the granting of interim approval, the EPA has discovered that, in general, there is not a reliable or complete inventory of emissions associated with agricultural operations in California that are subject to the exemption. Although further research on this issue is needed, many sources with activities covered by the exemption may not have emission levels that would subject them to title V, and the State and/or individual Districts may be able to demonstrate that none of the sources that are exempt under the State law are subject to title V.

Based, in part, on these factors, EPA has tentatively concluded that requiring the immediate commencement of title V permitting of the limited types of agricultural activities presently subject to the exemption, without a better understanding of the sources and their emissions, would not be an appropriate utilization of limited local, state and federal resources. As a result, despite the State of California's failure to eliminate the agricultural permitting exemption, EPA is proposing to grant full approval to local Air District operating permit programs and allow a deferral of title V permitting of agricultural operations involved in the growing of crops or the raising of fowl or animals for a further brief period, not to exceed three years. During the deferral period, we expect to develop the program infrastructure and experience necessary for effective implementation of the title V permitting program to this limited category of sources.

EPA believes it is appropriate to defer permitting for this limited category of agricultural sources because the currently available techniques for determining emissions inventories and for monitoring emissions (e.g., from irrigation pumps and feeding operations) are problematic and will be dramatically enhanced by several efforts currently being undertaken with the cooperation and participation of the operators and agricultural organizations, as well as EPA, other Federal agencies, and the State and local air pollution agencies. For example, the National Academy of Sciences is undertaking a study addressing emissions from animal feeding operations. Their report is due next year. In addition, EPA's Office of Air and Radiation is working with the U.S. Department of Agriculture to better address the impact of agricultural operations on air quality. We consider the effort to evaluate the existing science, improve on assessment tools, collect additional data, remove any remaining legal obstacles, and issue any necessary guidance within the three year deferral time frame to be ambitious. We welcome comments on other areas that might also warrant study, as well as ways that this work might be done more quickly.

During the interim deferral period, EPA will continue to work with the agricultural industry and our state and federal regulatory partners to pursue, wherever possible, voluntary emission reduction strategies. At the end of this period, EPA will, taking into consideration the results of these studies, make a determination as to how the title V operating permit program will be implemented for any potential major agricultural stationary sources.

E. What Is Involved in This Proposed Action?

Today, we are proposing to fully approve the District's revised Rule 33 (operating permit program). We have determined that the revisions made by the District remove the deficiencies identified by us in 1995. We will make our final decision on our proposal after considering public comments submitted during the 30-day period from this publication date.

II. Request for Public Comment

EPA requests comments on the program revisions discussed in this proposed action. Copies of the District 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 November 19, 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 significant 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: October 11, 2001.

Laura Yoshii,

Acting Regional Administrator, Region IX.