[Federal Register Volume 61, Number 211 (Wednesday, October 30, 1996)]
[Rules and Regulations]
[Pages 55910-55924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27836]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5642-1]
Clean Air Act Final Interim Approval of Operating Permits
Program; Arizona; Direct Final Interim Approval of Operating Permits
Program; Pinal County Air Quality Control District, Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval; direct final interim approval.
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SUMMARY: The EPA is promulgating interim approval of the Operating
Permits Program submitted by the State of Arizona, which comprises
programs from the Arizona Department of Environmental Quality (ADEQ),
the Maricopa County Environmental Services Department, (Maricopa), the
Pima County Department of Environmental Quality (Pima), and the Pinal
County Air Quality Control District (Pinal) for the purpose of
complying with federal requirements for an approvable state program to
issue operating permits to all major stationary sources, and to certain
other sources. The EPA is also taking direct final action to promulgate
interim approval of specified portions of the Pinal County Operating
Permits Program submitted by ADEQ on behalf of Pinal County on August
15, 1995. These specified portions of the program reflect changes to
the permitting regulation that was part of Pinal's original program
submittal.
DATES: The final interim approval of the Arizona program is effective
on November 29, 1996. The direct final interim approval of the
specified portions of the Pinal County program as codified in paragraph
(d)(2) of the Arizona entry of Appendix A to part 70, is effective on
December 30, 1996 unless adverse or critical comments are received by
November 29, 1996. If the effective date is delayed, a timely notice
will be published in the Federal Register.
ADDRESSES: Copies of the State and county submittals and other
supporting information used in developing the final interim approval
and direct final interim approval are available for inspection (docket
number AZ-95-1-OPS) during normal business hours at the following
location: U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Regina Spindler (telephone 415-744-
1251), Mail Code A-5-2, U.S. Environmental Protection Agency, Region
IX, Air and Toxics Division, 75 Hawthorne Street, San Francisco, CA
94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) Part 70 require that states develop
and submit operating permits programs to EPA by November 15, 1993, and
that EPA act to approve or disapprove each program within 1 year after
receiving the submittal. The EPA's program review occurs pursuant to
section 502 of the Act and the part 70 regulations, which together
outline criteria for approval or disapproval. Where a program
substantially, but not fully, meets the requirements of Part 70, EPA
may grant the program interim approval for a period of up to 2 years.
If EPA has not fully approved a program by 2 years after the November
15, 1993 date, or by the end of an interim program, it must establish
and implement a federal program. On July 1, 1996, EPA promulgated the
part 71 regulations that govern EPA's implementation of a federal
operating permits program in a state or tribal jurisdiction. See 61 FR
34202. On July 31, 1996, EPA published a notice at 61 FR 39877 listing
those states whose part 70 operating permits programs had not been
approved by EPA and where a part 71 federal operating permit program
was therefore effective. In that notice EPA stated that part 71 is
effective in the State of Arizona. The EPA also stated its belief that
it would promulgate interim approval of the Arizona part 70 program
prior to the deadline for sources to submit permit applications under
part 71. Today's action cancels the applicability of a part 71 federal
operating permits program in Arizona in those areas under the
jurisdiction of the State and county agencies. The part 71 application
deadline contained in the July 31, 1996 notice is now superseded
[[Page 55911]]
by the State and county part 70 application deadlines.
On July 13, 1995, EPA published a notice of proposed rulemaking
(NPR) in which it proposed interim approval of the operating permits
program for ADEQ, Maricopa, Pima, and Pinal. See 60 FR 36083. The NPR
identified several deficiencies in the State and county programs and
proposed that the Arizona agencies make specified changes to correct
those deficiencies as a condition of full approval. The EPA received
public comment on the proposal and is responding to most of those
comments in this document. The EPA has addressed all of the comments
received on the proposal in a separate ``Response to Comments''
document contained in the docket at the Regional Office. After
considering the comments, EPA determined that some of the changes
proposed in the NPR are not necessary. In this final interim approval,
EPA has therefore modified the list of changes (``interim approval
issues'') that was set forth in section II.B.1. of the NPR. The public
comments that prompted EPA to modify the list are discussed below in
II.B. along with other issues raised during the public comment period.
In addition, ADEQ, on behalf of Pinal County, has submitted a revised
operating permits program for Pinal. Some of the revisions to the list
of interim approval issues for Pinal result from revisions to the Pinal
program that the County made in response to EPA's NPR. These revisions
to the Pinal program are also discussed in section II.B. of this
rulemaking. Revisions to portions of the Pinal program that were not
addressed by EPA's NPR are discussed in III.A. below. The EPA is taking
direct final action to promulgate interim approval of these changes to
the Pinal operating permits program.
The EPA's NPR also proposed approval, under section 112(l), of the
State and county programs for accepting delegation of section 112
standards as promulgated. The EPA received public comment on this
proposed action for the Pinal County program only, as is discussed
below in II.B.
In this document EPA is taking final action to promulgate interim
approval of the operating permits programs for ADEQ, Maricopa, Pima,
and Pinal. In this document EPA is also taking final action to approve,
under section 112(l), these agencies' programs for accepting delegation
of section 112 standards as promulgated. Finally, EPA is taking direct
final action today to promulgate interim approval of specific changes
to the Pinal County operating permits program.
II. Final Action and Implications
A. Analysis of State Submission
The title V programs for ADEQ, Maricopa, Pima, and Pinal were
submitted by ADEQ on November 15, 1993. Additional material was
submitted by ADEQ on March 14, 1994; May 17, 1994; March 20, 1995; and
May 4, 1995. Additional information was submitted by Maricopa on
December 15, 1993; January 13, 1994; March 9, 1994; and March 21, 1995.
Additional information was submitted by Pima on December 15, 1993;
January 27, 1994; April 6, 1994; and April 8, 1994. On Pinal's behalf,
ADEQ submitted a revision to Pinal's program on August 16, 1994. On
July 13, 1995, EPA proposed interim approval of The Arizona State title
V operating permits program in accordance with Sec. 70.4(d), on the
basis that the program ``substantially meets'' part 70 requirements.
Additional material submitted by the State and county agencies in
response to EPA's NPR is referenced below in II.B. in the discussion of
public comments.
The analysis of the State submittal given in the July 13, 1995
proposed action is supplemented by the discussion of public comments
made on the NPR, including the discussion of the additional material
submitted by the State and county agencies, and the resulting changes
to the interim approval issues list. Otherwise, the analysis in the
proposed document remains unchanged and will not be repeated in this
final document. The program deficiencies identified in the proposed
document have been modified as discussed below in II.B. The program
deficiencies that remain, however, must be corrected for the State and
counties to have fully approvable programs. These program deficiencies,
or interim approval issues, are enumerated in II.C. below.
B. Public Comments and Responses
The EPA received comments on the NPR for the Arizona program from
fifteen interested parties. The majority of the comments are discussed
below. Comments that are not addressed in this document are addressed
in a separate ``Response to Comments'' document contained in the docket
(AZ-95-1-OPS).
Several commenters expressed a general concern that sources which
have already submitted permit applications in accordance with the
existing Arizona regulations should not be required to submit new
applications due to program deficiencies identified by EPA in this
document. The EPA is therefore clarifying that today's final interim
approval of the Arizona program authorizes the State and county
agencies to implement the interimly approved programs as the title V
operating permits program for a period of two years. The EPA has
identified certain deficiencies in the program that must be corrected
by the end of this two year period but until that time, the agencies
may implement the program in accordance with the interimly approved
regulations cited in today's document. Therefore, sources that have
submitted applications in accordance with these regulations need not
reapply. The applications will not be deemed incomplete or returned for
revision solely because the permit application relies upon the Arizona
agencies' interimly approved regulations. If an applicant submitted a
timely and complete application in accordance with these regulations,
its application shield is not jeopardized by changes to the interimly
approved regulations that the State or county agencies may make. Other
comments on the July 13, 1995 proposal are discussed below.
1. Insignificant Activities
Section 70.5(c) provides that states may develop as part of their
program, and EPA may approve, a list of insignificant activities and
emissions levels that need not be included in permit applications but
that applications may not omit information needed to determine the
applicability of, or to impose, any applicable requirement, or to
evaluate appropriate fees. Several commenters disagreed with EPA's
requirement in the NPR that all activities identified as insignificant
by the Director of ADEQ must first be approved by EPA. The EPA proposed
that in order to receive full approval, ADEQ must remove the provisions
in its current title V regulation that gives the Director the
discretion to identify activities as insignificant without prior EPA
approval. These commenters argued that Sec. 70.5(c) provides only that
EPA may approve a list of insignificant activities as part of a
permitting authority's title V program and by including discretionary
authority as one item on the list, ADEQ has met the requirements of
Sec. 70.5(c). They also argued that nothing in Sec. 70.5(c) suggests
that all insignificant activities must be submitted to EPA in the form
of a rule and requiring so would unnecessarily limit the flexibility of
states to identify new insignificant activities as they arise. The
commenters also stated that EPA would have opportunity to review such
newly designated insignificant activities when it receives permit
applications
[[Page 55912]]
identifying such activities. Several commenters also cited the
discussion in EPA's July 10, 1995 ``White Paper for Streamlined
Development of Part 70 Permit Applications'' (``White Paper'') of
trivial activities. They argued that the discretion allowed permitting
authorities by EPA to list additional items as trivial should also be
extended to insignificant activities.
The EPA's reading of Sec. 70.5(c) is that EPA must approve as part
of a state's title V program any activities the state considers to be
insignificant. The EPA's ``White Paper'' also states that activities
that are not clearly trivial ``still need to be approved by EPA before
being added to State lists of insignificant activities.'' The EPA
therefore does not agree that the reasons offered by the commenters are
adequate to support full approval of the State rule provision discussed
here. However, EPA does believe this provision is fully approvable for
the reasons discussed in the following paragraph.
ADEQ's rule clearly states that certain activities may be
considered insignificant only if the emissions unit ``is not otherwise
subject to any applicable requirement.'' (Arizona Administrative Code
(AAC) R18-2-101(54)) AAC R18-2-304(E)(7) requires that all
insignificant activities be listed in the permit application. This goes
beyond the Sec. 70.5(c) requirement that ``for insignificant activities
which are exempted because of size or production rate, a list of such
insignificant activities must be included in the application.'' The
preamble to the final part 70 rule clarifies the distinction. It
discusses a boiler that is insignificant because it is below a
specified size as an example of an insignificant activity that is
exempted because of size and would be required by Sec. 70.5(c) to be
listed in the application. It goes on to state that for insignificant
activities ``which apply to an entire category of activities, such as
space heaters, the application need not contain any information on the
activity.'' [57 FR 32273, July 21, 1992] ADEQ does not distinguish its
insignificant activities in this way and instead requires that all
insignificant activities be listed in the application. The ``White
Paper'' generally provides that sources need only submit detailed
emissions information on emissions units as necessary to determine the
applicability of requirements, to verify compliance, and to compute
permit fees. The EPA believes that ADEQ's handling of insignificant
activities is consistent with this discussion. By requiring all
insignificant activities to be listed, ADEQ provides that information
on all emission units will be included in the application. Any units
that are subject to applicable requirements may not be considered
insignificant and the source must provide more detailed information for
those units. It therefore is appropriate that the Director of ADEQ may
allow activities other than those on the list submitted as part of its
title V program to be merely listed in the application. Because these
activities would be listed in the application, ADEQ and EPA would have
an opportunity to review the list and request additional information if
they believed the activity did not qualify as insignificant.
Regarding the proposal that ADEQ submit a demonstration to EPA that
the specific activities listed in R18-2-101(54)(a-i) are truly
insignificant, EPA has further evaluated the activities on this list
and found that they do qualify for treatment as insignificant in the
title V application because their exclusion is not likely to interfere
with determining or imposing applicable requirements in the State or
with the determination of fees. Therefore, no further demonstration is
necessary.
The EPA is therefore revising its proposal regarding insignificant
activities. The EPA is eliminating ADEQ's interim approval issue
regarding insignificant activities and finds that the provisions in
ADEQ rules regarding insignificant activities are fully approvable.
In the July 13, 1995 proposal, EPA stated that Pinal County's 200
pound per year insignificant activity threshold may not be appropriate
for units emitting hazardous air pollutants (HAP) and proposed that in
order to receive full approval Pinal must demonstrate that this
threshold level is insignificant compared to the level of HAP emissions
from units required to be permitted. The EPA also proposed that Pinal
demonstrate that the insignificant activities specifically listed in
its program are truly insignificant. Pinal County commented that they
have no objection to adopting lower thresholds for HAPs (such as
Sec. 112(g) de minimis levels) that EPA may set by rule but that they
should not be required to submit a demonstration that their listed
activities are truly insignificant until EPA establishes by rule what
qualifies as insignificant.
The EPA has further evaluated the activities specifically listed by
Pinal in its definition of ``insignificant activity'' and determined
that they are acceptable because their exclusion is not likely to
interfere with determining or imposing applicable requirements in the
County or with the determination of fees. The EPA has also reevaluated
its proposal regarding Pinal's emissions threshold definition of
``insignificant activity'' in light of the ``White Paper'' guidance on
permit applications. Pinal's rule (PCR Sec. 3-1-050(E)) provides that
title V applications need not contain emissions data regarding
insignificant activities but that all insignificant activities must be
listed in the application. Pinal's definition of ``insignificant
activity'' excludes any activities subject to an applicable requirement
(PCR Sec. 1-3-140(74a)). As discussed above regarding ADEQ's
insignificant activity provisions, EPA believes that this approach is
consistent with the ``White Paper'' guidance. Pinal is assuring that
information on all emission units will be included in the application
by requiring insignificant activities to be listed and that more
detailed information, including emissions information, will be provided
for those units subject to applicable requirements. The EPA believes
that the 200 pound per year threshold used to define insignificant
activities in Pinal's regulation is appropriate for the County given
these other provisions in the rule. The EPA is, therefore, eliminating
the proposed interim approval issue regarding Pinal's insignificant
activities and finds that these provisions are fully approvable.
The EPA did not receive any comments specific to its proposal
regarding Pima's insignificant activities provision. Pima's rule (PGC
Sec. 17.12.160(E)(7)) provides that emission units that do not emit
more than 2.4 pounds per day of VOC or 5.5 pounds per day on any other
regulated air pollutant must be listed in the application but the
application need not provide detailed information on these units. The
EPA stated in its proposal its concern that the emissions thresholds
may not be acceptable for defining insignificant activities for HAP.
The EPA also stated in the proposal that Pima must restrict such
insignificant emission units to those that are not likely to be subject
to an applicable requirement. The EPA now believes that if Pima adds
the restriction that emissions units that are subject to any unit-
specific applicable requirements may not be eligible for treatment as
insignificant, then the County's treatment of insignificant emission
units will be consistent with the ``White Paper'' guidance as discussed
above regarding the ADEQ and Pinal insignificant activity provisions.
With the ``applicable requirement'' restriction, and the requirement
that all insignificant emission units be listed in the application, EPA
believes that the
[[Page 55913]]
emissions thresholds described above are appropriate for Pima County.
The EPA is therefore modifying the proposed interim approval issue
accordingly. (See II.C.1.c.3 below.)
Maricopa County's Regulation II, Rule 210, section 301.5(g) allows
that emissions information for activities included in an extensive list
(MAPC Regulation II, Rule 200, section 303.3(c)) need not be included
in applications though the activities themselves must be listed in the
application. The EPA proposed that Maricopa be required to submit a
demonstration that the activities are truly insignificant and not
likely to be subject to an applicable requirement. Alternately, EPA
proposed that Maricopa restrict the exemptions to activities that are
less than County-established emission levels and that are not likely to
be subject to an applicable requirement. The EPA believes that there
are items on Maricopa's list that could emit significant amounts of
pollutants and/or that could be subject to non-general applicable
requirements. Maricopa County Environmental Services Department was the
only commenter that addressed EPA's proposal on Maricopa's
insignificant activities provision. Maricopa responded that they agree
to provide EPA with a demonstration that the activities are truly
insignificant and not likely to be subject to an applicable requirement
and also to revise Rule 200 to include emissions and/or operation
limits for the activities as necessary. The EPA is requiring,
therefore, that for full approval Maricopa must demonstrate that the
activities on its list are insignificant. It must revise the list to
ensure that nothing on the list will be subject to a unit-specific
requirement. In some cases, this may require removing some items from
the list completely. Another option is to add emissions cut-offs or
size limitations to items on the list to ensure that the listed
activities are below any applicability thresholds for applicable
requirements.
Several commenters took exception to EPA's proposal that one way to
identify insignificant activities is to set emissions limits. The
commenters argue that this contradicts both the purpose of establishing
insignificant activities and the ``White Paper.'' They contend that
establishing an emissions cutoff for insignificant activities would
require sources to quantify and document the level of emissions from
insignificant activities in an effort to show that they do indeed
qualify as insignificant. This emissions quantification, they argue, is
exactly what the concept of insignificant activities and the ``White
Paper'' discussion of application content intended to avoid. The
purpose of the insignificant activities exclusion, they say, is to
relieve sources from the obligation to develop and submit detailed
information about activities that are not relevant to determining fees
or the applicability of CAA requirements. The commenters also cite the
``White Paper'' discussion which says that emissions estimates should
not be required when they serve no useful purpose.
While EPA is not requiring that states set an emissions level
cutoff to define insignificant activities, the agency maintains that it
is acceptable to do so as long as such levels are insignificant
compared to the level of emissions from units that are subject to
applicable requirements. The EPA also believes that where a state's
list of insignificant activities contains activities that may be
significant if emitting above a certain level, then imposing an
emissions cap on the list will ensure that the activities are truly
insignificant. As to the comment that emissions cutoffs defeat the
purpose of an exemption, EPA notes that Pima and Pinal Counties chose
to define insignificant activities in this way. The EPA's proposal
merely expressed the concern that the chosen levels may be too high. As
discussed above, EPA now believes the emissions thresholds set by Pima
and Pinal to be acceptable in their jurisdictions given the other
conditions placed on emissions units to be treated as insignificant in
these counties.
2. Excess Emissions
Numerous parties commented on EPA's proposal to require ADEQ to
clarify that its excess emissions affirmative defense provision does
not apply to part 70 sources. They challenged EPA's authority to assert
that part 70 programs may not contain an affirmative defense for excess
emissions beyond that provided in section 70.6(g) for emergency
situations and cited section 70.6(g)(5) which provides that the
emergency affirmative defense ``is in addition to any emergency or
upset provision contained in any applicable requirement.'' They contend
that ADEQ's excess emissions provision is necessary because part 70
sources will have unavoidable excess emissions for purely technological
reasons and not emergencies as described in section 70.6(g). Many
sources, they argue, are unable to maintain emissions below applicable
emissions limits during startup and shutdown events as well as during
malfunctions. They also cite EPA's recognition of this situation in
many NSPS regulations which provide that emission limits do not apply
during periods of startup, shutdown, and malfunction. The commenters
also pointed out that the purpose of title V is not to impose new
substantive requirements but to set forth all requirements that apply
to a source in a single document. They assert that establishing the
emergency provision of section 70.6(g) as the only defense for
violations would increase the stringency of EPA's NSPS regulations and
Arizona State rules. By prohibiting an affirmative defense that has
been in Arizona regulations for many years, they argue, EPA will create
new standards for sources. The commenters also referred to EPA's
September 22, 1986 proposal to approve the ADEQ excess emissions
provision as part of the SIP. They argued that if EPA had finalized its
action on this rule then there would be no question as to its
applicability to part 70 sources.
The EPA agrees that it is not the purpose of title V to create any
new substantive requirements for sources but rather to assure source
compliance with federal applicable requirements. The EPA's proposal to
not fully approve a provision that would allow sources an affirmative
defense to noncompliance with federal applicable requirements is fully
consistent with this purpose. The EPA does recognize that there are
times when it is technologically infeasible for sources to comply with
applicable emissions limits. This rationale was behind the promulgation
of the 70.6(g) affirmative defense. Moreover, where EPA, in
promulgating individual standards, has found that it is necessary to
provide relief from compliance during such periods, it has done so.
Several NSPS and recently promulgated NESHAP allow, as commenters
noted, that standards apply at all times except periods of startup,
shutdown, and malfunction. Similarly, a state could, within a specific
source category rule approved into the SIP, provide such relief where
appropriate.
The section 70.6(g)(5) provision which recognizes upset provisions
``in addition'' to the Sec. 70.6(g) emergency defense is intended to
confirm that startup, shutdown, and malfunction provisions contained in
specific federal applicable requirements will continue to have effect
once those requirements are incorporated into part 70 permits. Section
70.6(g)(5) does not imply that affirmative defenses may be established
beyond those found in the applicable requirements or in Sec. 70.6(g).
AAC R18-2-310 (Rule 310) is broader that Sec. 70.6(g), and moreover
would provide a defense to noncompliance with federal applicable
requirements where the applicable requirement itself requires
[[Page 55914]]
compliance. By approving such a provision, EPA would be granting
authority to the State to change applicable requirements through title
V beyond what Sec. 70.6(g) specifically allows.
The EPA is not increasing the stringency of the Arizona SIP rules
by not approving Rule 310 into the State's title V program. Because
Rule 310 has never been approved into the SIP, the provisions of Rule
310 have never been part of these federal applicable requirements.
Regardless of whether such provisions have existed as a matter of
Arizona State law, they have never had legal effect as a matter of
federal law. It follows that Arizona's SIP rules will be no more
stringent when incorporated into the title V permit. Similarly, because
Rule 310 never applied to NSPS and other federal standards, they will
be no more stringent after incorporation into the title V permit. As
section 70.6(g)(5) confirms, any exemptions or defenses included in
these federal requirements will still be available once the
requirements are incorporated into the title V permit, along with the
emergency defense allowed by Sec. 70.6(g).
As to the comments regarding EPA's 1986 proposed approval of
Arizona's excess emissions provision, EPA did not finalize its action
on the excess emissions rule and therefore this rule is not part of the
SIP and does not affect any federally enforceable applicable
requirement. The EPA has informed ADEQ that it would not approve such a
broadly applicable rule into the SIP because it is inconsistent with
EPA's policy on excess emissions. See EPA's ``Policy on Excess
Emissions During Startup, Shutdown, Maintenance, and Malfunctions''
from Kathleen Bennett dated September 28, 1982 and as revised on
February 15, 1983.
The EPA maintains that a fully approvable part 70 program must not
provide for an affirmative defense to violations beyond that provided
by the section 70.6(g) emergency provision. AAC R18-2-310 is therefore
not fully approvable because it is a more broadly applicable provision
than the section 70.6(g) emergency defense. Rather than being limited
to emergencies, it applies during startup, shutdown, malfunction, and
scheduled maintenance. It is also available as a defense to violations
of all standards while section 70.6(g) applies only to technology-based
standards. For full approval, ADEQ must correct these deficiencies such
that its rule is consistent with section 70.6(g) (see II.C.1.a.5
below). During the interim approval period, however, ADEQ may implement
its title V program according to the regulations receiving interim
approval in today's action, including the AAC R18-2-310 excess
emissions affirmative defense provision.
3. Criminal Affirmative Defense/Material Permit Conditions
The EPA received a number of comments regarding the affirmative
defense to criminal prosecution for violation of emission and opacity
requirements and the revisions to the regulatory definitions of
material permit condition EPA proposed in sections II.B.1.a.9.,
II.B.1.b.3, II.B.1.c.8, and II.B.1.d.9. of the NPR. ADEQ and a number
of industry commenters opposed EPA's proposed revisions. ADEQ's
comments explained that the types of permit conditions which EPA had
proposed to add to the regulatory definition are already covered by
existing statutory provisions. After reviewing these provisions
(Arizona Revised Statutes (ARS) Secs. 49-464(C), (G), (J), and (U)),
EPA defers to the State's interpretation of the statute and is
therefore removing the requirements to revise the definition of
material permit condition in the State and county regulations. The EPA
is, however, finalizing the requirement that ADEQ clarify that a
material permit condition may be contained in a permit or permit
revision issued by the Control Officer of a county agency as well as by
the Director of ADEQ. (See II.C.1.a.6 below.)
One commenter felt that the State regulatory definition of material
permit condition was also deficient in that it covers only those
emission limits imposed to avoid classification as a major source or
modification or to avoid triggering other requirements. Such
requirements are commonly referred to as synthetic minor restrictions.
While these limits can be federally enforceable, they are not required
under the federal CAA in the same way that other emission limits are
because they are opted into by the source voluntarily to avoid other
requirements. Thus, ADEQ included such limits in the definition of
material permit condition to fill a perceived gap. However, as ADEQ
pointed out in its comment letter, the criminal violation of emission
limits in general is specifically covered by ARS Sec. 49-464(C). ARS
Sec. 49-464(G) makes it clear that emissions limit violations are to be
addressed under subsection (C). The commenter also argued that R18-2-
331(B) incorporates the excess emissions defense which EPA has cited as
an interim approval issue. The EPA disagrees with this analysis. This
provision does not provide a defense; rather it decreases the available
criminal charge from a felony to a misdemeanor in a narrowly proscribed
set of circumstances.
4. Public Notice
ADEQ, the Arizona Chamber of Commerce, and the Arizona Mining
Association (AMA) disagreed with EPA's proposal to require revision of
the Arizona agencies' rules to allow for providing ``notice by other
means if necessary to assure adequate notice to the affected public.''
All three parties contend that the public notice provisions in the
State and county rules go well beyond the minimum federal requirements
and will allow for more than adequate notice to the affected public.
AMA also argued that the addition of a vague and indefinite requirement
for additional notice could lead to litigation claiming that issued
permits are invalid because public notice was inadequate. While EPA
recognizes that the State and county notice provisions are quite
extensive, there may be certain instances when the agencies must use
alternative means not specifically provided for in their rules to reach
a particular community or group of people that may be affected by a
permitting action. On July 22, 1996, the Office of the Attorney General
of Arizona submitted a supplement to the Attorney General's opinion in
response to EPA's proposal on this matter. This supplement cites ARS
49-104(B)(3) which gives ADEQ the power to ``utilize any medium of
communication, publication and exhibition in disseminating information,
advertising, and publicity in any field of its purposes, objectives and
duties.'' This, in the Attorney General's opinion, gives ADEQ the power
to provide notice by any means as necessary to assure adequate notice
to the affected public. The EPA is deferring to the Attorney General's
opinion, and is therefore eliminating the interim approval issue
regarding the public notice provision (see II.B.1.a.8 of the NPR)
identified in the proposed interim approval of ADEQ's program.
Neither the Attorney General's Office, nor the county attorney's
offices, submitted a statement citing a provision in State or county
law that gives similar broad authority to the counties. Maricopa stated
in its comment letter on the proposed interim approval and also in a
letter from the County Attorney submitted on August 5, 1996 that its
rule was revised in February, 1995 to authorize notice by other means
necessary to assure adequate notice. Pinal County revised its rules to
add such a provision to its public notice procedures (Pinal County Code
of
[[Page 55915]]
Regulations (PCR) Sec. 3-1-107(C)(3)) and Pima has also added such a
provision to its rules. Pinal submitted its revised rules, including
the revised section 3-1-107(C)(3), as a revision to its title V program
submittal on August 15, 1995 and therefore EPA is eliminating the
interim approval issue for Pinal's program related to public notice
(see II.B.1.d.8. of EPA's July 13, 1995 proposal) such that Pinal's
public notice procedures are now fully approvable. Maricopa and Pima
have not submitted their revised rules as revisions to their title V
programs and thus EPA must finalize action on the Maricopa and Pima
public notice provisions as proposed (see II.C.1.b.11 and II.C.1.c.6
below). The EPA recognizes, however, that once Maricopa and Pima submit
their revised rules for approval under title V, the public notice
provisions regarding notice by other means necessary to assure adequate
notice will be fully approvable.
5. Public Access to Records
The Arizona Center for Law in the Public Interest (ACLPI) commented
that the Arizona State program does not meet the Clean Air Act
requirement (Sec. 7661a(b)(8)) that state permit programs include the
authority and procedures to make available to the public any permit
application, compliance plan, permit, and monitoring or compliance
report. ACLPI argues that ARS Sec. 49-432 allows a source to declare a
wide variety of information confidential, and therefore unavailable to
the public, upon submittal to the permitting authority. ACLPI argues
further that the burden is on the permitting authority to demonstrate
in court that the information does not qualify as confidential and that
there is no avenue of redress for a citizen if the permitting authority
chooses not to contest a claim of confidentiality.
The Attorney General's opinion submitted as part of the State
program addresses public access to permit information. The Attorney
General states that AAC R18-2-305(A) provides that all permits,
including all elements required to be in the permit pursuant to AAC
R18-2-306, shall be made available to the public and that no permit may
be issued unless the information required by AAC R18-2-306 is present
in the permit. The Attorney General goes on to state that the Director
of ADEQ has 30 days to determine whether the information satisfies the
requirements for trade secret or competitive position pursuant to ARS
Sec. 49-432(C)(1) and if the Director decides that the material does
not satisfy these requirements, he may direct the Attorney General's
office to seek a court order authorizing disclosure. The Attorney
General further asserts that the ``burden of proof in a court
proceeding is on the party asserting the affirmative of an issue, the
claimant. The statute in question shifts the burden of proceeding but
does not shift the burden of proof.'' He also states that if the
Director disagrees with a permit applicant's assertion of
confidentiality, the permit application is incomplete until the
disagreement is resolved.
The regulations clarify this interpretation. AAC R18-2-305(B)
requires that any notice of confidentiality submitted pursuant to ARS
Sec. 49-432(C) must contain sufficient supporting information to allow
the Director to evaluate whether such information satisfies the
requirements related to trade secrets or how the information, if
disclosed, is likely to cause substantial harm to competitive position.
AAC R18-2-305(C) further provides that the Director shall make a
determination as to whether the information satisfies the requirements
for trade secret or competitive position and notify the applicant. Only
if the Director agrees that the applicant's notice satisfies the
statutory requirements will the Director attach a notice to the
applicant's file that certain information is confidential.
The EPA defers to the opinion of the Attorney General that
Arizona's confidentiality provisions will not interfere with the
public's access to information intended to be public under title V. If
EPA finds, however, that Arizona is routinely withholding information
that EPA would release to the public under federal confidentiality
provisions, EPA will revisit this portion of the program approval. The
EPA also notes that AAC R18-2-304(F) requires a source that is applying
for a title V permit and has submitted information under a claim of
confidentiality to submit a copy of that information directly to EPA.
The release of this information to the public by EPA would be governed
by federal confidentiality provisions under Sec. 114(c) of the Act.
6. Exemption of Agricultural Activities
ACLPI commented that the Arizona program exempts from permitting
``agricultural vehicles or agricultural equipment used in normal farm
operations'' (ARS Sec. 49-426.01) and that title V does not allow for
such an exemption. ACLPI further commented that ADEQ's regulatory
definition of ``agricultural equipment used in normal farm operations''
as not including equipment that would require a title V permit could be
readily challenged by farm interests as not reflecting the plain
language of the statute.
The Attorney General's Opinion submitted as part of ADEQ's title V
program states that in granting ``agricultural equipment used in normal
farm operations'' an exemption from the permitting requirement, the
``legislature sought in no way to exempt any major sources.'' The
opinion goes on to state that AAC R18-2-302(C)(3) clarifies this point
by providing that ``agricultural equipment used in normal farm
operations'' does not include equipment that requires a permit under
title V or is subject to a standard under 40 CFR parts 60 or 61. The
EPA defers to the opinion of the Attorney General regarding this issue.
However, if, as ACLPI suggests, a successful legal challenge to the
regulation occurs, EPA will revisit this portion of the program
approval.
7. Deadline for Permit Applications
ACLPI commented that ADEQ's rules do not require all sources to
submit applications within 12 months of EPA approval of the State's
program. ACLPI references AAC R18-2-303(E) which provides that permit
applications that were determined to be complete prior to the effective
date of ADEQ's rules shall be deemed complete for title V purposes and
that the Director shall include a compliance schedule in the source's
permit for submitting a title V application according to the newly
effective rules. ACLPI argues that because there is no time limit on
the compliance schedule it could go beyond the title V statutory
requirement. ACLPI also commented that there is no deadline for Class
II sources (non-title V) to submit permit applications other than 180
days from a written request from the Director.
AAC R18-2-303(E) allows that permits issued to sources whose
applications were deemed complete prior to the effective date of ADEQ's
rules shall contain a schedule of compliance for submitting an
application to address the additional elements that were not included
in the original application. The EPA considers this a reasonable
approach since sources that submitted applications prior to the rule's
effective date prepared the application pursuant to ADEQ's permit
application requirements in effect before the new rules were adopted.
AAC R18-2-303(B) contains a schedule by which existing sources
requiring a Class I permit (title V permit) must submit permit
applications. The last date that any source requiring a Class I permit
[[Page 55916]]
could submit its complete application was May 1, 1995, well in advance
of EPA's statutory deadline. The EPA considers AAC R18-2-303(B) to be
the permit application deadline for all Class I sources, regardless of
whether that source had submitted an application prior to the effective
date of the ADEQ rules.
Regarding the application deadline for Class II operating permits,
as these are state-only enforceable permits and not title V permits,
they need not meet the requirements of title V.
The EPA's NPR did identify a deficiency with the application
deadline as applied to certain existing sources that are not Class I
sources during the initial phase of the program but that later become
Class I sources after obtaining Class II permits. The EPA's proposal
included a requirement that ADEQ revise its regulation to include an
application deadline (12 months from becoming subject) for existing
sources that become Class I sources after initial permit issuance is
complete. One example is a source with a Class II permit that removes
operational limits such that it is no longer nonmajor. ADEQ's
regulation contains a specific schedule for existing Class I sources to
submit permit applications and does not contain a general requirement
that all Class I sources submit applications within one year of
becoming subject to Class I permit requirements. ADEQ argued in its
comment letter that any existing source that makes a facility change or
seeks to remove limits on its potential to emit such that it qualifies
for a Class I permit is required to obtain a significant revision to
its existing permit, or under AAC R18-2-302, if not previously
regulated, a new Class I permit. The EPA agrees that the regulation
requires a significant permit revision or new Class I permit prior to
making the change in such cases but significant permit revisions
normally address only the portion of the source and permit that is
being modified and for any source obtaining its initial Class I permit,
the entire permit must be subject to the full Class I permit issuance
procedures including public comment and EPA review. ADEQ's regulation
does not clearly provide that this would occur in the instances
discussed above. The EPA has, therefore, finalized the interim approval
identifying this as a deficiency that must be corrected but has
clarified that the rule must be revised to ensure that an entire source
is issued a permit under the Class I permitting procedures (see
II.C.1.a.2 below).
The EPA also proposed requiring revisions to the county regulations
to clarify that all existing title V sources must submit title V permit
applications within 12 months of EPA's approval of the Arizona program
and all sources that become subject after the program is approved must
apply within 12 months of becoming a title V source. Maricopa and Pinal
counties submitted comments that they intend to revise the rules
accordingly. No parties commented on this proposed requirement for
Pima. The EPA is therefore finalizing its action regarding the
application deadline issue as proposed for Maricopa, Pima, and Pinal
counties (see II.C.1.b.5, II.C.1.c.2, and II.C.1.d.5 below).
8. Conditional Orders
ACLPI commented that it believes Arizona's conditional order
provisions are inconsistent with title V. ADEQ has authority under ARS
Sec. 49-437 through Sec. 49-441 to grant a conditional order that
allows a source to vary from any provision of ARS Title 49, Chapter 3,
Article 2, any rule adopted pursuant to Article 2, or any requirement
of a permit issued pursuant to Article 2. The county agencies have
similar authority under ARS Sec. 49-491 through Sec. 49-495. In the
NPR, EPA stated that it considers such conditional order provisions as
wholly external to the program submitted for approval under part 70. In
that proposal, EPA also described how the State and county regulations
limit the applicability of the conditional order provisions. ADEQ
provides that conditional orders may only apply to non-federally
enforceable conditions of a permit and that issuance of a conditional
order may not constitute a violation of the Act. The county regulations
all provide that conditional orders may not be granted to part 70
sources. (Please see the July 13, 1995 NPR for more detail.) In
consideration of the regulatory limitations placed on the issuance of
conditional orders and the fact that EPA considers the statutory
provisions to be external to the title V program, EPA believes it does
have authority to approve Arizona's program without further regard to
the conditional order provisions than was expressed in the NPR.
The EPA did propose that Pinal modify its conditional order
provisions in PCR Sec. 3-4-420 to provide that a conditional order may
not be granted to vary from the requirement to obtain a title V permit.
Pinal submitted a comment that it acknowledges the need for this
correction. The EPA is finalizing this interim approval issue as
proposed (see II.C.1.d.8 below).
9. Permit Renewal Provisions
The EPA proposed that the State and counties revise their
regulations, in accordance with Sec. 70.4(b)(10), to include a
provision that a source's permit not expire until a renewed permit is
issued or denied or, alternately, provide that the terms and conditions
of the source's existing permit remain in effect until the permit
renewal action is final. ADEQ informed EPA in its comment letter that
ARS Sec. 41-1064 provides that an existing permit does not expire until
the issuing agency has acted on the application for renewal. The EPA
agrees that this statutory provision satisfies the requirement of
Sec. 70.4(b)(10) for all the Arizona agencies and has eliminated the
proposed interim approval issues regarding permit renewal accordingly
(see II.B.1.a.7, II.B.1.b.8, II.B.1.c.6, and II.B.1.d.7 of the NPR).
The EPA recognizes in this final interim approval action that Pinal
County has clarified in its revised title V regulation under section 3-
1-089 that any source relying on a timely and complete application as
authority to operate after expiration of a permit must comply with the
terms of the expired permit.
10. Fines for Fee and Filing Violations
As discussed in II.B.1.a.10, II.B.1.b.4, II.B.1.c.9, and
II.B.1.d.10 of the NPR, EPA believed that ADEQ and the counties needed
to revise their regulations to provide for adequate criminal penalties
for knowing violations of fee and filing requirements. This proposal
was based on EPA's evaluation of Arizona's statute, specifically ARS
Sec. 49-464(L)(3) and Sec. 49-514(L)(3), which provide for criminal
enforcement of fee and filing requirements due to criminal negligence
only, which carries lower penalties than knowing violations.
ADEQ's comment stated that the ``criminal negligence'' standard
covers knowing violations and that penalties associated with such
violations are $20,000 maximum for each violation. The Arizona Attorney
General's Office submitted a clarifying statement on July 22, 1996
citing ARS Sec. 13-202(C) as providing that if ``criminal negligence
suffices to establish an element of an offense, that element also is
established if a person acts intentionally, knowingly or recklessly * *
* '' The statement went on to say that ARS Sec. 49-464(L)(3),
therefore, already imposes criminal fines for knowing violations of fee
or filing requirements and that the fine imposed may be up to $20,000
per violation for an enterprise (see ARS Sec. 13-803). Because the
penalty
[[Page 55917]]
applicable to individuals is lower, and not adequate for title V
purposes, it is important to establish that all permits are issued to
enterprises. ARS Sec. 13-105(12) defines an enterprise to include any
corporation, association, labor union or other legal entity. The July
22, 1996 Attorney General's statement assured that air permits are
issued only to enterprises because AAC Sec. R18-2-304(B) provides that
all air permits be issued only to businesses. Given that ARS Sec. 49-
480(B) requires that county permitting procedures be identical to ADEQ
title V permitting procedures, EPA assumes that county title V permits
may be issued only to businesses. The EPA is deferring to the Attorney
General's interpretation of the relevant Arizona statutory and
regulatory provisions as assurance that the State and county agencies
have adequate enforcement authority for violations of fee and filing
requirements and is therefore eliminating the interim approval issues
regarding such authority as proposed in the NPR.
11. General Permit Public Notice Procedures
The EPA proposed that ADEQ and the counties revise their general
permit public notice provisions to ensure that they contain all of the
part 70 public notice requirements. Article 5 [general permit
requirements] of ADEQ's rule provides that ``unless otherwise stated,
the provisions of Article 3 [individual permit requirements] shall
apply to general permits.'' The EPA is concerned, however, that because
Article 5 contains specific public notice provisions and these
provisions state that ``this section applies to issuance, revision or
renewal of a general permit,'' that these would supersede the public
notice provisions of Article 3. The Article 5 provisions do not contain
all of the public notice requirements of part 70. The Attorney
General's July 19, 1996 addendum clarified that in his opinion all
public notice and hearing provisions contained in Article 3 of
Regulation 18 of Chapter 2 of the AAC apply to general permits issued
pursuant to Article 5. The EPA is deferring to the Attorney General's
opinion and is therefore eliminating the interim approval issue for
ADEQ as proposed in II.B.1.a.11 of its July 13, 1995 NPR.
Pinal County commented that following the County's regulatory
revisions of February 22, 1995, PCR Sec. 3-5-500, which contained
public notice procedures for the issuance of general permits, has been
repealed. The County rules, which were submitted as a title V program
revision on August 15, 1995, no longer provide for local issuance of
general permits. The EPA has eliminated the interim approval issue
related to public notice for general permit issuance as proposed in
II.B.1.d.12 of the July 13, 1995 NPR.
Maricopa and Pima provisions for general permit public notice are
the same as the provisions in ADEQ's regulations. Because ARS Sec. 49-
480(B) requires county permitting procedures to be identical to
procedures used by ADEQ, EPA assumes that the counties will interpret
their regulations in the same way as the Attorney General has
interpreted ADEQ's general permit public notice provisions. The EPA is
therefore eliminating the interim approval issues for Maricopa and Pima
as proposed in II.B.1.b.15 and II.B.1.c.10 of the NPR.
12. Title I Modification
In the NPR, EPA discussed its position that the definition of
``title I modification'' is best interpreted as not including changes
reviewed under minor NSR programs or changes that trigger the
application of a pre-1990 NESHAP requirement. The EPA stated that it
considers the definitions of ``title I modification'' in the ADEQ,
Maricopa, and Pinal programs, which are consistent with this
interpretation, to be fully consistent with part 70. The EPA also found
Pima's interpretation of ``title I modification'', which included minor
source preconstruction review changes, to be consistent with part 70
since nothing in part 70 bars a state from considering minor NSR to be
a title I modification.
Several commenters stated that they agree with EPA's interpretation
that ``title I modification'' does not include minor NSR. The
commenters also objected to EPA's approval of the Pima County
interpretation of ``title I modification'' on the grounds that it is
inconsistent with EPA's interpretation and also because it is contrary
to Arizona State law which requires that county agencies have identical
title V permit issuance procedures to ADEQ. On August 14, 1995, Pima
County submitted a letter to EPA dated August 11, 1995, in which Pima's
Director, David Esposito, informs EPA that in order to conform with
these requirements of state law, Pima now interprets ``title I
modification'' not to include changes reviewed under a minor source
preconstruction review program, consistent with ADEQ's interpretation.
The EPA recognizes this revised interpretation as the Pima County
definition of ``title I modification'' being acted on today and finds
that it is fully consistent with part 70.
Pinal County also submitted a comment suggesting a clarification of
EPA's statement in the proposal that Pinal does not interpret ``title I
modification'' to include changes reviewed under a minor source
preconstruction review program. Pinal believes it is more accurate to
state that: ``At least to the extent that a change does not trigger any
additional applicable requirements, and merely requires new monitoring
and recordkeeping requirements rather than modification of existing
provisions, Pinal does not interpret `title I modification' to include
changes eligible for approval as `off-permit' revisions under Sec. 3-2-
180 or minor permit revisions under Sec. 3-2-190.'' Pinal went on to
state that in general, changes at an existing source, including the
addition of new emissions units, that do not involve ``significant''
increases in emission levels and do not trigger or violate applicable
requirements may be processed as an ``off-permit'' revision or minor
permit revision.
13. Applicability of the Pinal County Program
In the NPR, EPA indicated that in addition to major sources,
affected sources, and solid waste incinerators, Pinal requires nonmajor
sources subject to a standard under section 111 or section 112 to
obtain a title V permit. Pinal County submitted a comment that while
this statement accurately reflects the program as originally submitted
on November 15, 1993 and amended on August 18, 1994, that on February
22, 1995, the County adopted revised rules that allow nonmajor sources
regulated under sections 111 or 112 to defer or be exempted from the
title V permit requirement to the extent allowed by the Administrator.
See PCR Sec. 3-1-040(B)(1) (b) and (c). Pinal submitted these revised
regulations on August 15, 1995. The approach taken in Pinal's revised
program is clearly consistent with part 70, represents the norm among
State part 70 programs, and so would not have presented an issue at
proposal had it been a feature of the originally submitted program. The
EPA is therefore finalizing its interim approval of Pinal's program
with this understanding of the applicability of the program.
This change in the applicability of Pinal's program affects EPA's
approval under section 112(l) of Pinal's program for accepting
delegation of section 112 standards as promulgated. The EPA stated in
the NPR that requirements for approval under 40 CFR 70.4(b) encompass
the section 112(l)(5)
[[Page 55918]]
requirements for approval of a program for delegation of section 112
standards. Because Pinal's original program submittal included all
sources subject to section 112 standards in the universe of sources
subject to its title V permitting requirements, EPA's proposed approval
of Pinal's program under section 112(l) extended to section 112
standards as applicable to all sources. In cases where a permit program
has chosen to defer or exempt certain sources subject to section 112
requirements from the title V permitting requirement as allowed by EPA
(e.g., nonmajor sources), approval under section 112(l) of the program
for delegation extends to section 112 standards as applicable to only
those sources that will receive title V permits. Pinal's program no
longer applies to all sources subject to section 112 standards. On
August 23, 1995, however, ADEQ submitted a separate request on behalf
of Pinal for approval under section 112(l) of Pinal's program for
seeking delegation of section 112 standards even insofar as they extend
to sources that are deferred or exempted from the title V permit
requirement under the Pinal program. (See letter from Donald
Gabrielson, Pinal County Air Pollution Control Officer, to David
Howekamp, Director, Air and Toxics Division, EPA Region IX, dated June
8, 1995.) Pinal refers to this request in its comment letter. Pinal's
request for approval under section 112(l) references the information
contained in Pinal's original title V program submittal as a
demonstration that Pinal meets the criteria under section 112(l)(5) and
section 63.91 for approval of a delegation program. The EPA is
therefore finalizing its approval under section 112(l) of Pinal's
program for delegation of section 112 standards as they apply to all
sources. See II.C.2 below.
14. Major Source Definition in Pinal Program
In response to EPA's proposed interim approval issue regarding
inclusion of HAP fugitive emissions in determining major source status
(see II.B.1.d.2 of the NPR), Pinal commented that it has revised its
definition of ``major source'' in PCR Sec. 1-3-140(79)(b) accordingly.
This revision was included in the revised Pinal program submitted on
August 15, 1995. The EPA believes that this provision requires further
revision, however, to clarify that fugitive emissions must be included
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.
Currently, the phrase ``including any fugitive emissions of any such
pollutants'' modifies only the 25 ton per year threshold. The EPA is
modifying the interim approval issue to reflect this necessary
clarification. See II.C.1.d.2 below.
The EPA's NPR also required Pinal to revise its ``major source''
definition to provide that fugitive emissions shall not be considered
in determining whether it is a major source for purposes of section
302(j) of the Act unless the source belongs to one of the categories of
sources listed in section 70.2 under the definition of ``Major
source,'' paragraph 2, items (i) to (xxvii). Pinal commented that its
revised program submittal addresses this issue. Pinal revised PCR
Sec. 1-3-140(79)(c) to include a provision for defining when fugitive
emissions must be included in determining a sources potential emissions
for purposes of title V applicability. This provision includes the list
of categories as discussed above except for the final item on the list,
namely ``all other stationary source categories 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.''
Instead, Pinal's definition of major source states that fugitive
emissions shall be considered in determining whether a source is major
for purposes of Sec. 302(j) of the Act if the source is regulated by a
standard promulgated as of August 7, 1980 under section 111 or section
112 of the Act or if a section 111 or section 112 standard expressly
requires inclusion of fugitive emissions in determining major source
status (PCR Sec. 1-3-140(79)(c)(ii),(iii), and (iv)). This definition
is not consistent with the current section 70.2 definition of ``major
source'' and therefore is not fully approvable.
In today's final interim approval action on the Pinal County
program, EPA is requiring that for full approval Pinal must revise its
definition of major source to provide that fugitive emissions must be
included in determining if a source is major for purposes of section
302(j) of the Act if that source belongs to a source category regulated
by a standard promulgated under section 111 or section 112 of the Act,
but only with respect to those pollutants that have been regulated for
that category. See II.C.1.d.3 below. The EPA notes that it has proposed
revisions to the major source definition with regard to the inclusion
of fugitives in determining major source status. (See 59 FR 44527,
August 29, 1994 and 60 FR 45565, August 31, 1995.) The EPA recognizes
that Pinal may be required to revise its major source definition
differently than described above should EPA finalize its proposed
revisions to the major source definition prior to the date that Pinal
must submit its revised program submittal.
C. Final Action
1. Title V Operating Permits Program
The EPA is promulgating interim approval of the operating permits
program submitted by the Arizona Department of Environmental Quality on
behalf of itself, the Maricopa County Environmental Services
Department, the Pima County Department of Environmental Quality, and
the Pinal County Air Quality Control District on November 15, 1993 as
supplemented by additional materials as referenced in II.A and II.B of
this document. The EPA is also promulgating interim approval of the
portions of the revised Pinal County operating permits program
submitted on August 15, 1995 that address the program deficiencies and
other issues discussed in EPA's July 13, 1995 proposed interim
approval. These provisions include Sections 1-3-140(79)(b) and 1-3-
140(79)(c) of Article 3 of Chapter 1; Sections 3-1-040(B)(1), 3-1-
089(C), and 3-1-107(C)(3) of Article 1 of Chapter 3; and Section 3-5-
500 of Article 5 of Chapter 3 of the Pinal County Code of Regulations
as adopted or revised on February 22, 1995. The remainder of the Pinal
County revised program is addressed by the direct final action in
section III of this document.
As discussed in II.A.2 of the NPR, this interim approval does not
apply to the State and county operating permit programs for non-part 70
sources or to State and county preconstruction review programs. This
interim approval applies only to that part of the State and county
permit programs that provide for the issuance of Class I operating
permits (in ADEQ), Title V operating permits (in Maricopa and Pima),
and Class A operating permits (in Pinal).
This interim approval, which may not be renewed, extends until
November 30, 1998. During this interim approval period, ADEQ, Maricopa,
Pima, and Pinal are protected from sanctions, and EPA is not obligated
to promulgate, administer and enforce a Federal operating permits
program in Arizona. Permits issued under a program with interim
approval have full standing with respect to part 70, and the 1-year
time period for submittal of permit applications by subject sources
begins upon the effective date of this interim approval, as does the 3-
year time period for processing the initial permit applications.
If the State or county agencies fail to submit a complete
corrective program
[[Page 55919]]
for full approval by May 30, 1998, EPA will start an 18-month clock for
mandatory sanctions. If the State or counties then fail to submit a
corrective program that EPA finds complete before the expiration of
that 18-month period, EPA will be required to apply one of the
sanctions in section 179(b) of the Act, which will remain in effect
until EPA determines that the State or counties have corrected the
deficiency by submitting a complete corrective program. Moreover, if
the Administrator finds a lack of good faith on the part of the State
or counties, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determined
that the State or counties had come into compliance. In any case, if,
six months after application of the first sanction, the State or
counties still have not submitted a corrective program that EPA has
found complete, a second sanction will be required.
If EPA disapproves the ADEQ, Maricopa, Pima or Pinal complete
corrective program, EPA will be required to apply one of the section
179(b) sanctions on the date 18 months after the effective date of the
disapproval, unless prior to that date the State or county agency has
submitted a revised program and EPA has determined that it corrected
the deficiencies that prompted the disapproval. Moreover, if the
Administrator finds a lack of good faith on the part of the State or
county agency, both sanctions under section 179(b) shall apply after
the expiration of the 18-month period until the Administrator
determines that the State or county agency has come into compliance. In
all cases, if, six months after EPA applies the first sanction, the
State or counties have not submitted a revised program that EPA has
determined corrects the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
State or counties have not timely submitted a complete corrective
program or EPA has disapproved its submitted corrective program.
Moreover, if EPA has not granted full approval to the Arizona State or
county agency program by the expiration of this interim approval, EPA
must promulgate, administer and enforce a Federal permits program for
the State or counties upon interim approval expiration.
Areas in which the Arizona program is deficient and requires
corrective action prior to full approval are as follows:
a. Arizona Department of Environmental Quality. ADEQ must make the
following changes, or changes that have the same effect, to receive
full approval:
(1) Revise AAC R18-2-101(61)(b) to clarify 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 major source thresholds. The phrase ``including any major
source of fugitive emissions'' in the current rule modifies only the 25
ton per year threshold. This phrase could also imply that fugitives are
included in the potential to emit determination only if the source
emits major amounts of fugitive emissions. The EPA expects, however,
that ADEQ will implement this provision consistent with the EPA policy
that all fugitive emissions of hazardous air pollutants at a source
must be considered in determining whether the source is major for
purposes of section 112 of the CAA.
(2) Revise AAC R18 to clarify that, when an existing source obtains
a significant permit revision to revise its permit from a Class II
permit to a Class I permit, the entire permit, and not just the portion
being revised, must be issued in accordance with part 70 permit
application, content, and issuance requirements, including requirements
for public, affected state, and EPA review.
(3) 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.'' AAC R18-2-306(A)(10) includes this exact provision but
also includes a sentence that negates this provision. ADEQ must either
delete the negating sentence:
``This provision shall not apply to emissions trading between
sources as provided in the applicable implementation plan.''
or revise this sentence as follows:
``This provision shall not apply to emissions trading between
sources [as provided] if such trading is prohibited in the
applicable implementation plan.''
(Sec. 70.6(a)(8))
(4) 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. AAC R18-2-306(A)(14) provides for such permit conditions
but does 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. ADEQ must revise AAC R18-2-
306(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.
(5) Revise AAC R18-2-310 to be consistent with the section 70.6(g)
provision for an emergency affirmative defense. Part 70 programs may
only provide for an affirmative defense to actions brought for
noncompliance with technology-based emission limits when such
noncompliance is due to an emergency situation.
(6) Revise AAC R18-2-331(A)(1) to provide under the definition of
``material permit condition'' that ``the condition is in a permit or
permit revision issued by the Director or the Control Officer after the
effective date of this section.''
b. Maricopa County Environmental Services Department. Maricopa must
make the following changes, or changes that have the same effect, to
receive full approval:
(1) Delete the following language from MAPC Regulation I, Rule 100,
section 224:
``Properties shall not be considered contiguous if they are
connected only by property upon which is located equipment utilized
solely in transmission of electrical energy.''
This language, which is part of the definition of a stationary source,
is not consistent with the stationary source definition in section
70.2.
(2) Revise MAPC Regulation I, Rule 100, section 251.2 to clarify
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 major source thresholds. The phrase
``including any major source of fugitive emissions'' in the submitted
Sec. 251.2 modifies only the 25 ton per year threshold. This phrase
could also imply that fugitives are included in the potential to emit
determination only if
[[Page 55920]]
the source emits major amounts of fugitive emissions. The EPA expects,
however, that Maricopa will implement this provision consistent with
the EPA policy that all fugitive emissions of hazardous air pollutants
at a source must be considered in determining whether the source is
major for purposes of section 112 of the CAA.
(3) Revise MAPC Regulation I, Rule 100, section 505 to clarify that
for Title V sources, records of all required monitoring data and
support information must be retained for a period of five years, as
provided in Regulation II, Rule 210, section 302.1(d)(2).
(Sec. 70.6(a)(3)(ii)(B))
(4) Revise MAPC Regulation I, Rule 100, section 506 to clarify that
for Title V sources, all permits, including all elements of permit
content specified in Rule 210, section 302, shall be available to the
public, as provided in Regulation II, Rule 200, section 411.1.
(Sec. 70.4(b)(3)(viii))
(5) Revise MAPC Regulation II, Rule 200, section 312.2 to define
when sources become ``subject to the requirements of Title V.'' A
source becomes subject to the requirements of title V from the
effective date of EPA's approval of the County's program when the
source meets the applicability requirements as provided in section 302
of Rule 200. In addition, revise section 312.5 to require that existing
sources that do not hold a valid installation or operating permit must
submit an application within 12 months of becoming subject to the
requirements of title V.
(6) Provide a demonstration that the activities listed in MAPC
Regulation II, Rule 200, Section 303.3(c) are insignificant. Remove
from the list any activities that are subject to a unit-specific
applicable requirement. Another option is to add emissions cut-offs or
size limitations to ensure that the listed activities are below any
applicability thresholds for applicable requirements. (Sec. 70.5(c),
Sec. 70.4(b)(2))
(7) For the reason explained above in II.C.1.a.(3), revise MAPC
Regulation II, Rule 210, Section 302.1(j) by either deleting the
following sentence:
``This provision shall not apply to emissions trading between
sources as provided in the applicable implementation plan.''
or by revising this sentence as follows:
``This provision shall not apply to emissions trading between
sources [as provided] if such trading is prohibited in the
applicable implementation plan.''
(Sec. 70.6(a)(8))
(8) For the reason explained above in II.C.1.a.(4), revise MAPC
Regulation II, Rule 210, Section 302.1(n) 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, revise this provision to require the notice
required by sections 403.4 and 403.5 to also describe how the increases
and decreases in emissions will comply with the terms and conditions of
the permit. (Sec. 70.4(b)(12))
(9) Delete the provision of MAPC Regulation II, Rule 210, section
404.1(e) that provides for equipment removal that does not result in an
increase in emissions to be processed as an administrative permit
amendment. Equipment removal, even if it does not result in an increase
in emissions, is not similar to the types of changes that EPA has
included in the part 70 definition of ``administrative permit
amendment.'' In some cases removal of equipment, such as monitoring
equipment, will require processing as a significant permit revision. In
other situations removal of equipment may qualify for processing as a
minor permit revision or possibly for treatment under the operational
flexibility provisions. (Sec. 70.7(d), Sec. 70.7(e)(4))
(10) Delete the following language from the criteria for minor
permit revisions in MAPC Regulation I, Rule 210, section 405.1(c):
`` * * * other than a determination of RACT pursuant to Rule
241, Section 302 of these rules, * * *''
This language is included in the rule as an exception to the
prohibition against allowing case-by-case determinations to be
processed as minor permit revisions. The definition of RACT in section
272 of Rule 100 states that ``RACT for a particular facility, other
than a facility subject to Regulation III, is determined on a case-by-
case basis * * *'' Rule 241 is not in Regulation III, so RACT
determinations made pursuant to this rule are done so on a case-by-case
basis. Excepting RACT determinations from the prohibition against
processing case-by-case determinations through the minor permit
revision process violates the requirement of section
70.7(e)(2)(i)(A)(3).
(11) Revise Regulation II, Rule 210, Section 408 to include a
provision for giving public notice ``by other means if necessary to
assure adequate notice to the affected public.'' (Sec. 70.7(h)(1))
c. Pima County Department of Environmental Quality. Pima must make
the following changes, or changes that have the same effect, to receive
full approval:
(1) Revise the definition of major source in PCC
Sec. 17.04.340(133)(b)(i) to clarify 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 major source thresholds. The current definition appears to require
inclusion of fugitive emissions only when determining applicability
according to the 10 ton per year major source threshold.
(2) Revise PCC Sec. 17.12.150(B) and Sec. 17.12.150(G)(1) to
clarify when a source becomes subject to obtaining title V permits. A
source becomes subject to obtaining a title V permit from the effective
date of EPA's approval of the County's program when the source meets
the applicability requirements as provided in section 17.12.140(B)(1).
(3) Revise PCC Sec. 17.12.160(E)(7) to provide that only emissions
units that are not subject to unit-specific applicable requirements may
qualify for treatment as insignificant emissions units.
(4) For the same reason discussed above in II.C.1.a.(3), revise PCC
Sec. 17.12.180(A)(10) by either deleting the following sentence:
``This provision shall not apply to emissions trading between
sources as provided in the applicable implementation plan.''
or by revising this sentence as follows:
``This provision shall not apply to emissions trading between
sources [as provided] if such trading is prohibited in the
applicable implementation plan.''
(Sec. 70.6(a)(8))
(5) For the same reason discussed above in II.C.1.a.(4), revise PCC
Sec. 17.12.180(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. (Sec. 70.4(b)(12))
(6) 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.'' (Sec. 70.7(h)(1))
d. Pinal County Air Quality Control District. Pinal must make the
following changes, or changes that have the same effect, to receive
full approval:
(1) Revise PCR Sec. 1-3-140(79)(b)(i) to clarify 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. The phrase ``including
any fugitive emissions of any such pollutants'' in the current rule
[[Page 55921]]
modifies only the 25 ton per year threshold. The EPA expects, however,
that Pinal will implement this provision consistent with the EPA policy
that all fugitive emissions of hazardous air pollutants at a source
must be considered in determining whether the source is major for
purposes of section 112 of the CAA.
(2) Revise PCR Sec. 1-3-140(79)(c) to delete sections 79(c)(ii),
(iii), and (iv) and to add the following to the list of sources that
must include fugitive emissions when determining major source status as
defined in section 302(j) of the Act:
``The source belongs 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.''
(3) 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. (70.5(c))
(4) Revise PCR Sec. 3-1-045(F)(1) to require sources requiring
Class A permits to submit a permit application no later than 12 months
after the date the Administrator approves the District program. Revise
PCR Sec. 3-1-050(C) to include an application deadline for existing
sources that become subject to obtaining a Class A permit after the
initial phase-in of the program. One example is a synthetic minor
source that is not initially required to obtain a Class A permit but
later removes federally enforceable limits on its potential emissions
such that it becomes a major source, but is not required to go through
the preconstruction review process. This application deadline must be
12 months from when the source becomes subject to the program (meets
Class A permit applicability criteria). (Sec. 70.5(a)(1)(i))
(5) For the reason discussed above in II.C.1.a.(3), revise PCR
Sec. 3-1-081(A)(10) by either deleting the following sentence:
``This provision shall not apply to emissions trading between
sources as provided in the applicable implementation plan.''
or by revising this sentence as follows:
``This provision shall not apply to emissions trading between
sources [as provided] if such trading is prohibited in the
applicable implementation plan.''
(Sec. 70.6(a)(8))
(6) For the reason discussed above in II.C.1.a.(4), 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,
revise this provision to require that the permit terms and conditions
shall 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. (Sec. 70.4(b)(12))
(7) 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.
The scope of the part 70 programs approved in this document applies
to all part 70 sources (as defined in the approved program) within the
State of Arizona, except any sources of air pollution over which an
Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18 (Nov.
9, 1994). The term ``Indian Tribe'' is defined under the Act as ``any
Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village, which is Federally recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.'' See section
302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR
54364 (Oct. 21, 1993).
2. Program for Delegation of Section 112 Standards as Promulgated
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that state and county programs
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under part 70. Therefore, EPA is also promulgating approval under
section 112(l)(5) and 40 CFR section 63.91 of ADEQ's, Maricopa's,
Pima's, and Pinal's programs for receiving delegation of section 112
standards that are unchanged from the federal standards as promulgated
and that apply to sources covered by the part 70 program.
As discussed in the NPR, because Pima's approved program requires
all sources (including nonmajor sources) subject to a requirement under
section 112 of the Act to obtain a part 70 permit, the proposed
approval of Pima's program for delegation extends to section 112
standards as applicable to all sources. ADEQ, Maricopa, and Pinal will
not issue part 70 permits to nonmajor sources subject to a section 112
standard (unless such sources are designated by EPA to obtain a permit)
but these agencies submitted addenda to their title V programs in which
they specifically requested approval under section 112(l) of a program
for delegation of unchanged section 112 standards applicable to non-
part 70 sources. (See discussion in II.B.2 of the NPR and in II.B.13 of
this document.) Therefore, today's proposed approval under section
112(l) of ADEQ's, Maricopa's, and Pinal's program for delegation
extends to non-part 70 sources as well as part 70 sources.
III. Direct Final Action on Revised Pinal County Program
A. Analysis of County Submission
ADEQ, on behalf of Pinal County, submitted a revised title V permit
program for Pinal County on August 15, 1995. The revised program
submittal consisted of a revised County code of regulations adopted by
the Pinal County Board of Supervisors on February 22, 1995 and a
supplemental County Attorney's legal Opinion. The other program
elements submitted on November 15, 1993 and subsequent dates as noted
in the proposed interim approval are considered part of this revised
program except where the revised regulation or supplemental County
Attorney's opinion change or replace those program elements. In some
cases, the County revised its regulations to correct deficiencies or
address other issues identified by EPA in its July 13, 1995 proposed
interim approval. The EPA has discussed such changes in II.B above and
taken final action on those program revisions in II.C above. The
discussion that follows and the direct final interim approval action
being taken today apply to changes to the regulation that are relevant
to implementation of the title V operating permits program that were
not addressed in the final interim approval action in section II of
this document.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing interim approval of the
specified portions of the operating permit program submitted by Pinal
should adverse or critical comments be filed.
If EPA receives adverse or critical comments, this action will be
withdrawn before the effective date by publishing a subsequent document
that
[[Page 55922]]
will withdraw the final action. All public comments received will then
be addressed in a subsequent final rule based on this action serving as
the proposed rule. The EPA will not institute a second comment period.
Any parties interested in commenting on this action should do so at
this time. If no such comments are received, the public is advised that
this action will be effective on December 30, 1996.
Today's direct final action promulgates approval of specific
changes to the Pinal County Code of Regulations adopted on February 22,
1995 that are relevant to implementation and enforcement of the Pinal
County title V operating permits program. The specific provisions of
Pinal's title V regulations adopted or revised on February 22, 1995
that are addressed by this direct final action are Sections 1-3-
140(1a), 140(16a), 140(44), 140(56), 140(58e), 140(59), 140(66),
140(86), 140(89), and 140(146) of Article 3 of Chapter 1; Sections 3-1-
042, 045(C), 050(C)(4), 050(G), 080(A), 081(A)(5)(b), 081(A)(6),
100(A), and 109 of Article 1 of Chapter 3; and Articles 5 and 7 of
Chapter 3 of the Pinal County Code of Regulations (PCR). These
regulations substantially meet the requirements of 40 CFR part 70,
Secs. 70.2 and 70.3 for applicability; sections 70.4, 70.5, and 70.6
for permit content, including operational flexibility; Sec. 70.7 for
public participation and minor permit modifications; Sec. 70.5 for
criteria that define insignificant activities; Sec. 70.5 for complete
application forms; and Sec. 70.11 for enforcement authority. Although
the regulations substantially meet part 70 requirements, there are
deficiencies in the program that are outlined under section III.C.
below as interim approval issues and further described in the Technical
Support Document.
The analysis contained in this document focuses on the specific
elements of the revised Pinal title V operating permits program that
must be corrected to meet the minimum requirements of part 70. The full
program submittal; the Technical Support Document (TSD), which contains
a detailed analysis of the submittal; and other relevant materials are
available for inspection as part of the public docket (AZ-95-1-OPS).
The docket may be viewed during regular business hours at the address
listed above.
1. General Permits.
Section 70.6(d) provides that permitting authorities may issue a
general permit covering numerous similar sources. General permits must
meet all requirements applicable to other part 70 permits and must
specify the criteria that sources must meet to be covered under the
general permit. Qualifying sources may then apply for coverage under
the terms and conditions of the permit. Article 5 of Chapter 3 of the
Pinal County regulations contain the provisions pertaining to general
permits. Article 5 as submitted on November 15, 1993 provided that the
Control Officer of Pinal County could issue a general permit for a
class of facilities that had similar operations, similar emissions, and
similar applicable requirements. Article 5 as amended by Pinal on
February 22, 1995 and submitted to EPA on August 15, 1995 repeals the
authority of the Control Officer to issue a general permit. Instead,
the regulations provide for the District to administer general permits
that are issued by ADEQ. Administration of general permits includes
receiving applications from sources in the District that seek
authorization to operate under a general permit; issuing, denying, or
revoking such authorizations to operate under the permit; and enforcing
the terms and conditions of the general permit.
PCR Sec. 3-5-490 contains the requirements for applying for
coverage under a general permit. There are several deficiencies in this
portion of the rule that must be corrected before Pinal can receive
full approval of its revised program. PCR Sec. 3-5-490(C) provides that
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 may operate within the limitations set forth in its
application until the District takes action on the application. This is
inconsistent with the requirements of part 70 and with other provisions
of Pinal's rules. Section 70.4(b)(10) requires that if a timely and
complete application for a permit renewal is submitted but the state
has failed to issue or deny the renewal permit before the end of the
term of the previous permit then either: (1) The permit shall not
expire until the renewal permit has been issued or denied; or (2) All
terms and conditions of the permit shall remain in effect until the
renewal permit has been issued or denied. PCR Sec. 3-1-089 requires
that any source relying on a timely and complete application as
authority to operate after expiration of the permit shall be legally
bound to adhere to and conform to the terms of the expired permit. This
provision is consistent with part 70. Pinal must revise PCR Sec. 3-5-
490(C) to be consistent with Sec. 70.4(b)(10) and EPA recommends that
it be revised to be consistent with PCR Sec. 3-1-089.
Section 490(C) also provides that if an existing source seeking
coverage under a general permit as an alternative to renewing an
individual permit is denied authorization to do so, that the source
must apply for an individual permit within 180 days of being notified
to do so but may continue to operate within the limitations of the
general permit under which coverage was denied during that 180 day
period. This also conflicts with Sec. 70.4(b)(10). Pinal must revise
the rule to require that the source must continue to comply with the
terms and conditions of its individual source permit. In addition,
Pinal must revise section 490(C) to clarify, consistent with
Sec. 70.7(d) and Sec. 70.4(b)(10), that notwithstanding the 180 day
permit application deadline set by the District in its notification to
the source, the 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).
PCR Sec. 3-5-550 includes provisions for the Control Officer to
revoke a source's authorization to operate under a general permit and
require that it obtain an individual source permit. PCR Sec. 3-5-550(C)
provides that a source previously authorized to operate under a general
permit may operate under the terms of the general permit until the
earlier of the date of expiration of the general permit, the date it
submits a complete application for an individual permit, or 180 days
after receipt of the notice of termination of any general permit. This
provision also requires the source to comply with the provisions of PCR
Sec. 3-1-089, which requires that any source relying on a timely and
complete application as authority to operate after a permit expires
must comply with the terms of the expired permit. PCR Sec. 3-5-550(C)
therefore contradicts itself. Pinal must revise the rule to clarify
that if the Control Officer revokes the source's authorization to
operate under a general permit then, if 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.
B. Direct Final Interim Approval and Implications
The EPA is promulgating direct final interim approval of the
following
[[Page 55923]]
provisions of the revised operating permits program submitted by the
Arizona Department of Environmental Quality, on behalf of the Pinal
County Air Quality Control District, on August 15, 1995: Sections 1-3-
140(1a), 140(16a), 140(44), 140(56), 140(58e), 140(59), 140(66),
140(86), 140(89), and 140(146) of Article 3 of Chapter 1; Sections 3-1-
042, 045(C), 050(C)(4), 050(G), 080(A), 081(A)(5)(b), 081(A)(6),
100(A), and 109 of Article 1 of Chapter 3; and Articles 5 and 7 of
Chapter 3 of the Pinal County Code of Regulations (PCR).
This direct final interim approval does not apply to the County
operating permit program for non-part 70 sources or to the County
preconstruction review program. This interim approval applies to the
regulatory provisions cited above only as they apply to Class A
operating permits.
Areas in which Pinal's program is deficient and requires corrective
action prior to full approval are as follows. Pinal must correct these
deficiencies by November 30, 1998. This is the expiration date of the
interim approval granted by EPA to the original program submitted by
Pinal on November 15, 1993 as discussed above in II.C.1. The timeframes
and conditions of this direct final interim approval action and for EPA
oversight and sanctions are the same as discussed above in II.C.1.
Pinal must make the following changes, or changes that have the
same effect, to receive full approval:
(1) 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, that 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.
(2) 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 authorization to do so, that
the source must continue to comply with the terms and conditions of its
individual source permit. In addition, Pinal must 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, the
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).
(3) Revise PCR Sec. 3-5-550(C) to clarify that if the Control
Officer revokes the source's authorization to operate under a general
permit then, if 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.
IV. Administrative Requirements
A. Docket
Copies of the State and county submittals and other information
relied upon for the final interim approval and direct final interim
approval, including public comments on the proposal from 15 different
parties, are contained in docket number AZ-95-1-OPS maintained at the
EPA Regional 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 final interim approval and direct final interim
approval. The docket is available for public inspection at the location
listed under the ADDRESSES section of this document.
B. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a federal mandate that may result in estimated costs
of $100 million or more to either state, local, or tribal governments
in the aggregate, or to the private sector. This federal action
approves pre-existing requirements under state or local law, and
imposes no new federal requirements. Accordingly, no additional costs
to state, local, or tribal governments, or to the private sector,
result from this action.
D. Small Business Regulatory Enforcement Fairness Act
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
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 18, 1996.
John Wise,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for Arizona
in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Arizona
(a) Arizona Department of Environmental Quality: submitted on
November 15, 1993 and amended on March 14, 1994; May 17, 1994; March
20, 1995; May 4, 1995; July 22, 1996; and August 12, 1996; interim
approval effective on November 29, 1996; interim approval expires
November 30, 1998.
(b) Maricopa County Environmental Services Department: submitted
on November 15, 1993 and amended on
[[Page 55924]]
December 15, 1993; January 13, 1994; March 9, 1994; and March 21,
1995; July 22, 1996; and August 12, 1996; interim approval effective
on November 29, 1996; interim approval expires November 30, 1998.
(c) Pima County Department of Environmental Quality: submitted
on November 15, 1993 and amended on December 15, 1993; January 27,
1994; April 6, 1994; and April 8, 1994; August 14, 1995; July 22,
1996; and August 12, 1996; interim approval effective on November
29, 1996; interim approval expires November 30, 1998.
(d) Pinal County Air Quality Control District:
(1) submitted on November 15, 1993 and amended on August 16,
1994; August 15, 1995; July 22, 1996; and August 12, 1996; interim
approval effective on November 29, 1996; interim approval expires
November 30, 1998.
(2) revisions submitted on August 15, 1995; interim approval
effective on December 30, 1996; interim approval expires November
30, 1998.
* * * * *
[FR Doc. 96-27836 Filed 10-29-96; 8:45 am]
BILLING CODE 6560-50-P
