02-12847. Notice of Deficiency for 34 Clean Air Act Operating Permits Programs in California

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of deficiency.

SUMMARY:

Pursuant to our authority at Clean Air Act section 504(i) and the implementing regulations at 40 CFR 70.10(b)(1), EPA is publishing this Notice of Deficiency for the following 34 Clean Air Act title V Operating Permits Programs in the State of California: Amador County Air Pollution Control District (APCD), Bay Area Air Quality Management District (AQMD), Butte County AQMD, Calaveras County APCD, Colusa County APCD, El Dorado County APCD, Feather River AQMD, Glenn County APCD, Great Basin Unified APCD, Imperial County APCD, Kern County APCD, Lake County AQMD, Lassen County APCD, Mariposa County APCD, Mendocino County APCD, Modoc County APCD, Mojave Desert AQMD, Monterey Bay Unified APCD, North Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County APCD, Placer County APCD, Sacramento Metro AQMD, San Diego County APCD, San Joaquin Valley Unified APCD, San Luis Obispo County APCD, Santa Barbara County APCD, Shasta County APCD, Siskiyou County APCD, South Coast AQMD, Tehama County APCD, Tuolumne County APCD, Ventura County APCD, and Yolo-Solano AQMD. The Notice of Deficiency is based upon EPA's finding that the State's agricultural permitting exemption at Health and Safety Code 42310(e) unduly restricts the local districts' ability to adequately administer and enforce their title V programs, which have previously been granted full approval status. Therefore, EPA finds that the 34 districts' title V programs do not meet the minimum requirements required by Federal law. Publication of this notice is a prerequisite for withdrawal of title V program approval for the 34 districts, but does not effect such a withdrawal. Withdrawal of program approval, if necessary, will be accomplished through subsequent rulemaking.

EFFECTIVE DATE:

May 22, 2002. Because this NOD is an adjudication and not a final rule, the Administrative Procedure Act's 30-day deferral of the effective date of a rule does not apply.

FOR FURTHER INFORMATION CONTACT:

Gerardo C. Rios, Chief, Permits Office, Air Division, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” or “our” means EPA.

Table of Contents

I. Description of Action and Identification of Program Deficiency

II. Effect of Notice of Deficiency

III. Administrative Requirements

I. Description of Action and Identification of Program Deficiency

We are publishing this Notice of Deficiency (NOD) for thirty-four (34) Clean Air Act (CAA or Act) operating permits programs in California. EPA promulgated final full approval of all 34 districts' title V operating permits programs on November 30, 2001. See 66 FR 63503 (December 7, 2001).^[1] This document is being published to satisfy 40 CFR 70.10(b)(1), which provides that EPA shall publish in the Federal Register a notice of any determination that a title V permitting authority is not adequately administering or enforcing its title V operating permits program.

EPA has determined that all 34 local permitting authorities in California that have fully approved title V operating permit programs are not adequately administering or enforcing their programs because state law at Health and Safety Code 42310(e) exempts from permitting, “equipment used in agricultural operations in the growing of crops or the raising of fowl or animals.”

Title V of the Act does not provide for this exemption and requires that all permitting authorities have the authority to “issue permits and assure compliance by all sources required to have a permit under this subchapter with each applicable standard, regulation or requirement under this chapter.” CAA 502(b)(5)(A). These requirements are echoed in the operating permit program approval regulations promulgated at 40 CFR part 70. See 40 CFR 70.4(b)(3)(i).

II. Effect of Notice of Deficiency

40 CFR 70.10(b) and 70.10(c) provide that EPA may withdraw a 40 CFR part 70 program approval, in whole or in part, whenever the permitting authority's legal authority does not meet the requirements of part 70 and the permitting authority fails to take corrective action. 40 CFR 70.10(b) sets forth the procedures for program withdrawal, and requires as a prerequisite to withdrawal that the permitting authority be notified of any finding of deficiency by the Administrator and that the notice be published in the Federal Register. Today's notice satisfies this requirement and constitutes a finding of program deficiency for each of the 34 districts listed above.

If the State of California has not taken significant action to change state law to provide each of the 34 permitting authorities adequate authority to issue permits and assure compliance by all subject sources within 90 days after publication of this notice of deficiency, then EPA will take action to partially withdraw approval of each of the 34 California districts' title V operating permits programs. Such action would only withdraw the portions of the programs that relate to state-exempt major stationary agricultural sources. Also, if the state does not correct the deficiency during the 90-day period, then EPA has the discretion to apply sanctions under section 179(b). Further, 40 CFR 70.10(b)(3) provides that, if a state has not corrected the deficiency within 18 months after the effective date of this notice, EPA will apply the sanctions under section 179(b) of the Act in accordance with section 179(a) of the Act.^[2] CAA § 502(i)(1) and (2), 40 CFR 70.4(k) and 70.10(b)(2)-(4).

This notice of deficiency is not itself a proposal to withdraw approval of the title V operating permits program for the 34 districts in California. Consistent with 40 CFR 70.10(b)(2), this notice provides the State of California 90 days to take significant action to assure adequate administration and enforcement of the local districts' programs. As stated above, EPA has determined that significant action in this instance means the revision or removal of Health and Safety Code 42310(e) so that local air pollution control districts have the required authority to issue title V permits to stationary agricultural sources that are major sources of air pollution. In anticipation that the State of California will not effect the necessary change in state law within 90 days, EPA expects to propose to partially withdraw approval for each of the 34 identified title V operating permits programs before the end of the 90 days provided in this notice; however, consistent with 40 CFR 70.10(b)(4), final action on our proposal will occur only after the 90 days for the state to take significant action has elapsed. EPA will ensure that the public comment period on the proposal to partially withdraw approval will extend beyond the 90-day period for the state to take significant action so that the public will have an opportunity to fully comment on that aspect of our action.

III. Administrative Requirements

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of today's action may be filed in the United States Court of Appeals for the appropriate circuit within 60 days of July 22, 2002.

List of Subjects in 40 CFR Part 70

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: May 14,2002.

Sally Seymour,

Acting Regional Administrator, Region 9.

Footnotes

1.  Although there are 35 separate permitting authorities in California, one permitting authority, Antelope Valley APCD, was not included in our final action because it only recently obtained its authority to issue part 70 permits and is still under its initial interim approval status granted on December 19, 2000 (65 FR 79314).

2.  The EPA is developing an Order of Sanctions rule to determine which sanction applies at the end of this 18-month period.