01-22623. Clean Air Act Proposed Full Approval of Operating Permit Programs; Pima County Department of Environmental Quality, Arizona

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve revisions to the Pima County Department of Environmental Quality (PDEQ or District) operating permit program. The PDEQ operating permit program was submitted in response to the directive in the 1990 Clean Air Act (CAA) Amendments that permitting authorities develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources within the permitting authorities' jurisdiction. EPA granted interim approval to the PDEQ operating permit program on October 30, 1996. The District has revised its program to satisfy the conditions of the interim approval. However, PDEQ must also revise its rules to incorporate the adoption date of the rule it has incorporated by reference. Therefore, in addition to proposing approval of several rules already submitted by PDEQ, EPA is proposing in this rulemaking action to approve two rules in parallel with the District's adoption of revised rules that will add reference dates for materials incorporated by reference. We are proposing to approve rules that were submitted by PDEQ on May 28, 1998 and those that were public noticed by the District on August 9, 2001 and are scheduled for an adoption hearing on September 11, 2001.

DATES:

Comments on the program revisions discussed in this proposed action must be received in writing by October 10, 2001.

ADDRESSES:

Written comments on this action should be addressed to Gerardo Rios, Acting Chief, Permits Office, Air Division (AIR-3), EPA Region IX, 75 Hawthorne Street, San Francisco, California, 94105. You can inspect copies of PDEQ's submittal and other supporting documentation relevant to this action during normal business hours at the Air Division of EPA Region 9, 75 Hawthorne Street, San Francisco, California, 94105. You may also see copies of the submitted title V program at the following location: Pima County Department of Environmental Quality, 130 West Congress Street, Tucson, Arizona 85701.

FOR FURTHER INFORMATION CONTACT:

Ginger Vagenas, EPA Region IX, Permits Office (AIR-3), U.S. Environmental Protection Agency, Region IX, [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

This section provides additional information by addressing the following questions:

What is the operating permit program?

What is EPA's proposed action?

What is parallel processing?

What are the program changes that EPA is approving?

What is the effect of this proposed action?

Are there other issues with this program?

I. What Is the Operating Permit Program?

The CAA Amendments of 1990 required all state and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve compliance by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides (NO_X), or particulate matter (PM₁₀); those that emit 10 tons per year of any single hazardous air pollutant (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of hazardous air pollutants (HAPs). In areas that are not meeting the national ambient air quality standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as “serious,” major sources include those with the potential of emitting 50 tons per year or more of volatile organic compounds or nitrogen oxides.

II. What Is EPA's Proposed Action?

Because the operating permit program originally by PDEQ substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval to the program in a rulemaking published on October 30, 1996 (61 FR 55910). The interim approval notice described the conditions that had to be met in order for the PDEQ program to receive full approval. Today's Federal Register action describes the changes that PDEQ has made to its operating permit program to correct conditions and obtain full approval.

EPA is proposing full approval of the operating permits program submitted by PDEQ based on the revisions submitted on May 28, 1998 and those proposed for adoption by Pima on August 9, 2001. These revisions satisfactorily address the program deficiencies identified in EPA's October 30, 1996 rulemaking. See 61 FR 55910. EPA is also proposing to approve, as a title V operating permit program revision, additional changes to the rules that have been submitted to correct interim approval issues. The interim approval issues, PDEQ's corrections, and the additional changes are described below under the section entitled, “What are the program changes that EPA is approving?”

III. What Is Parallel Processing?

Parallel processing refers to concurrent state and federal rulemaking actions. Under this procedure, EPA publishes our proposed action and initiates our 30-day comment period at the same time the District is undergoing its rulemaking processes.

EPA has reviewed the changes that the District expects to adopt formally in the near future. The rulemaking process currently underway in Pima County will not change the substance of the rules, it will merely add a reference date to clarify which version of the material incorporated by reference is in effect. The District's public comment period for the revision to include a reference date began on August 9, 2001. The substantive changes to the rules have already been adopted by the District, including an opportunity for public comment. The comment period for EPA's proposed action, which would approve both the text of the rules as well as the addition of a reference date for the material incorporated by reference into the rules, closes on October 10, 2001. We will finalize this action after PDEQ adopts the changes in substantially the same form as proposed and submits them to EPA as a revision to the District's title V program unless we receive comments that change our assessment that the rules comply with the relevant CAA requirements.

IV. What Are the Program Changes That EPA Is Approving?

A. Corrections to Interim Approval Issues

In its October 30, 1996 rulemaking, EPA made full approval of PDEQ's operating permit programs contingent upon the correction a number of interim approval issues. Each issue, along with the District's correction, is described below.

1. Rule deficiency: PCC Sec. 17.04.340(133)(b)(i) (the definition of “major source”) did not clearly require that fugitive emissions of hazardous air pollutants (HAPs) be included when determining a source's potential to emit. In order to correct the deficiency, the definition needed to be revised so that it would be clear that fugitive emissions of HAPs must be considered in determining whether the source is major for purposes of both the 10 ton per year and 25 ton per year HAP major source thresholds. See § 70.2.

Rule change: The definition of major source, which has been recodified as 17.04.340 (122), has been revised to correct the deficiency. It now defines a major source under section 112 of the CAA to include, “* * * for pollutants other than radionuclides, any stationary source that emits, or has the potential to emit, in the aggregate and including fugitive emissions, 10 tons per year or more of any hazardous air pollutant which has been listed pursuant to section 112(b) of the CAA, 25 tons per year of any combination of such hazardous air pollutants * * *.” (Emphasis added.)

2. Rule deficiency: PDEQ's rules did not clearly specify when a source became subject to title V. EPA required the District to revise PCC Sec. 17.12.150(B) and Sec. 17.12.150(G)(1) to correct this problem.

Rule change: The text of PCC 17.12.150 was removed and replaced by an incorporation by reference of AAC R18-2-303, a rule that was submitted as part of the State of Arizona's (ADEQ's) title V program. EPA found the version of R18-2-303 effective on November 15, 1993 and submitted as part of the State's title V program to be approvable. In terms of substance, the incorporation of AAC R18-2-303 resolves the interim approval issue. Notwithstanding the approvability of the substance of Pima's rule, it does not include a reference date for the material incorporated by reference. EPA believes that the identification of the version of materials incorporated by reference is critical to enforceability and clarity, and therefore finds this change to be unapprovable; however, Pima has undertaken a rulemaking to correct this problem and plans to submit the revised rule to EPA by September 28, 2001. We are therefore proposing to approve this change concurrent with Pima's rulemaking to add a reference date. Alternatively, if Pima does not revise and resubmit the rule as described above, we will be unable to grant full approval to the Pima title V program. If we do not fully approve the District's title V program by December 1, 2001, PDEQ will lose its authority to implement its title V operating permits program and the federal operating permit program (part 71) will be in effect.

3. Rule deficiency: EPA required that the District revise PCC Sec. 17.12.160(E)(7) to provide that only emissions units that are not subject to unit-specific applicable requirements may qualify for treatment as insignificant emissions units. See § 70.5(c).

Rule changes: Pima has revised its provisions regarding insignificant activities to be consistent with those of ADEQ, which EPA found fully approvable in our initial program actions. PCC 17.12.160 was amended to be identical to AAC R18-2-304 and now requires that insignificant activities be listed in the application. The definition of insignificant activities (PCC 17.04.340.109) has been amended to be identical to ADEQ's definition (Rule R18-2-101.54). For additional analysis of the insignificant activity issue, see 61 FR 55911; October 30, 1996.

4. Rule deficiency: Section 70.6(a)(8) requires that title V permits contain a provision that “no permit revision shall be required under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are provided for in the permit.” PCC Sec. 17.12.180(A)(10) included this exact provision but also included a sentence that negated this provision. EPA required that PDEQ either delete or revise the negating sentence to make the rule consistent with part 70.

Rule change: The negating sentence has been deleted from the District's rule.

5. Rule deficiency: Section 70.4(b)(12) provides that sources are allowed to make changes within a permitted facility without requiring a permit revision, if the changes are not modifications under any provision of title I of the Act and the changes do not exceed the emissions allowable under the permit. PCC 17.12.180(A)(14) provided for such permit conditions but did not restrict the allowable changes to those that are not modifications under title I of the Act and those that do not exceed the emissions allowable under the permit. Pima was required to revise PCC 17.12.180(A)(14) to add these conditions.

Rule change: Pima has corrected this deficiency by revising PCC 17.12.180(A)(14) to include the following language: “Changes made under this paragraph (14) shall not include modification under any provision of Title I of the Act and may not exceed emissions allowable under the permit.”

6. Rule deficiency: EPA required that the District revise PCC Sec. 17.12.340 to include a provision for giving public notice “by other means if necessary to assure adequate notice to the affected public.” See § 70.7(h)(1).

Rule change: Pima has submitted a new rule (Rule 17.12.345) that incorporates by reference A.R.S 49-104(B)(3) as amended in 1995. This rule provides that, “[t]he department, through the Director, shall * * * utilize any medium of communication, publication and exhibition when disseminating information, advertising and publicity in any field of its purposes, objectives or duties.”

B. Other Changes

Some of the rules the District submitted to EPA for approval incorporate changes other than those necessary to correct interim approval deficiencies. In this action, EPA is also proposing to approve, as a title V operating permit program revision, those additional program changes made by PDEQ since the interim approval was granted. We have evaluated the additional changes and, with one exception that is described in detail below, find that they are consistent with part 70. We are including the additional changes in our proposed approval.

Paragraph (c) of PDEQ's definition of major source (17.04.340(122)) lists source categories that must count fugitives. Subparagraph xxvii has been modified to read: “All other stationary source categories regulated by a standard promulgated as of August 7, 1980 under section 111 or 112 of the Act, but only with respect to those air pollutants that have been regulated for that category.” Emphasis added. The addition of this 1980 cutoff date restricts the types of sources that are required to count fugitives towards the major source threshold. This is inconsistent with part 70 and is not approvable. EPA has, however, proposed to revise the major source definition to incorporate the 1980 cutoff. We are therefore proposing to approve the District's definition of major source provided that EPA finalizes revisions to the part 70 rule that will make the change approvable. Alternatively, if EPA does not finalize the changes to part 70 described above, Pima's major source definition will conflict with the operative version of part 70 and we will be unable to approve it. The remedy to Pima's interim approval issue regarding the counting of fugitive emissions of hazardous air pollutants resides within that same definition, so if we are barred from approving Pima's new major source definition because of the 1980 date, we will be unable to grant full approval to PDEQ's title V program. As a result, Pima would lose its authority to implement its title V operating permits program on December 1, 2001, and part 71 will be in effect.

PDEQ made a number of additional changes to the rules that implement their part 70 program, many of which were non-substantive (e.g., recodifications) or irrelevant (e.g., changes to requirements applying to non-title V sources). A general description of the more substantive changes follows. For more detail on all of the changes, refer to section B of the technical support document.

The District's permit application and processing procedures were modified to specify that an application will not be considered complete if the Control Officer disputes a source's claim of confidentiality. PDEQ's permit content provisions were also modified. Prompt reporting of deviations is now defined as notice that is provided within two working days. A new paragraph explicitly restricts emissions to units for which emissions are quantifiable or for which there are replicable procedures to enforce the emission trades. The list of conditions that must be included in a title V permit has been expanded to include “such other terms and conditions as are required by the Act, A.R.S. Title 49, Chapter 3, Articles 1 and 2 and 3, and the rules adopted pursuant thereto.”

The permit content provisions have also been modified to redefine the terms and conditions in a title V permit that are enforceable by the Administrator and citizens under the Act. It generally requires that the Control Officer designate as not federally enforceable any terms and conditions that are not required under the Act or any of its applicable requirements. It also includes an independent mandate that terms and conditions that are entered into voluntarily are enforceable by citizens and the Administrator under the Clean Air Act. The rule was also modified to require that all permits include a condition that specifies that noncompliance with any federally enforceable requirement in a permit constitutes a violation of the Clean Air Act. It had previously stated that any permit noncompliance constitutes a violation of the Act. Finally, the emergency provisions have been modified so that they are now entirely consistent with § 70.6(g).

V. What Is the Effect of This Proposed Action?

Pima has adopted rule revisions that address the issues identified in EPA's interim approval and has made additional revisions to its program as described above. The District is currently in the process of adopting revisions that will specify the version of the materials they have incorporated by reference. PDEQ has submitted a copy of its revised rules to EPA and has requested that we propose action on those rules currently being revised during the period that the District is accepting comment on the addition of a reference date for the rules that were incorporated by reference. The rules proposed for approval today are those that were previously submitted along with those for which the District comment period commenced on August 9, 2001. Table 1 lists the rules addressed by this proposal with the dates that they were (or are anticipated to be) adopted and submitted by PDEQ.

Table 1.—Submitted Rules

Rule #	Rule title	Adopted	Submitted
17.04.340.A. (122)	Words, phrases, and terms—definition of “Major source” only	Scheduled for adoption on 9/11/01	Submittal anticipated by 9/28/01
17.04.340.A. (109)	Words, phrases, and terms—definition of “Insignificant activity” only	4/7/98	5/28/98
17.12.150	Transition from installation and operating permit program to unitary permit program	Scheduled for adoption on 9/11/01	Submittal anticipated by 9/28/01
17.12.160	Permit application processing procedures	4/7/98	5/28/98
17.12.180	Permit contents	4/7/98	5/28/09
17.12.345	Public notification	4/7/98	5/28/98

As noted above, PDEQ has already adopted and submitted most of the required changes. Should the District adopt Rules 17.12.150 and 17.04.340.A.(122) in the form in which they were noticed and submit them to EPA as a title V program revision, Pima will have fulfilled the conditions of the interim approval granted on October 30, 1996 (61 FR 55910). EPA is therefore proposing full approval of the PDEQ operating permit program, contingent on the adoption and submittal of minor revisions to Rules 17.12.150 and 17.04.340.A.(122), and contingent on EPA finalizing its proposed change to the part 70 definition of major source. In addition, we are proposing to approve, as a title V operating permit program revision, additional changes to PDEQ's rules, as described in section IV.B. of this document.

VI. Are There Other Issues With This Program?

On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permits programs until December 1, 2001 (65 FR 32035). The action was subsequently challenged by the Sierra Club and the New York Public Interest Research Group (NYPIRG). In settling the litigation, EPA agreed to publish a document in the Federal Register that would alert the public that they may identify and bring to EPA's attention alleged programmatic and/or implementation deficiencies in Title V programs and that EPA would respond to their allegations within specified time periods if the comments were made within 90 days of publication of the Federal Register document.

One citizens' group commented on what it believes to be deficiencies with respect to PDEQ's title V program. EPA takes no action on those comments in today's action and will respond to them by December 1, 2001. As stated in the Federal Register notice published on December 11, 2000, (65 FR 77376) EPA will respond by December 1, 2001 to timely public comments on programs that have obtained interim approval, and EPA will respond by April 1, 2002 to timely comments on fully approved programs. We will publish a notice of deficiency (NOD) when we determine that a deficiency exists, or we will notify the commenter in writing to explain our reasons for not making a finding of deficiency. An NOD will not necessarily be limited to deficiencies identified by citizens and may include any deficiencies that we have identified through our program oversight.

Request for Public Comment

EPA requests comments on the program revisions discussed in this proposed action. Copies of the Pima submittal and other supporting documentation used in developing the proposed full approval are contained in docket files maintained at the EPA Region 9 office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed full approval. The primary purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the approval process, and (2) to serve as the record in case of judicial review. EPA will consider any comments received in writing by October 10, 2001.

Administrative Requirements

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) because it proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). The rule merely proposes to approve existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significantly regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to Title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

List of Subjects in 40 CFR Part 70

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

Dated: August 30, 2001.

Sally Seymour,

Acting Regional Administrator, Region IX.