[Federal Register Volume 63, Number 184 (Wednesday, September 23, 1998)]
[Rules and Regulations]
[Pages 50769-50773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25323]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-6165-8]
Clean Air Act Final Approval Of Amendments to Title V Operating
Permits Program; Pima County Department of Environmental Quality,
Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating final approval of the following
revisions to the operating permits program submitted by the Arizona
Department of Environmental Quality (``DEQ'') on behalf of the Pima
County Department of Environmental Quality (``Pima'' or ``County''): a
revision to the fee provisions; and a revision that will defer the
requirement for minor sources subject to standards under sections 111
or 112 of the Act to obtain title V permits, unless such sources are in
a source category required by EPA to obtain title V permits. EPA is
also promulgating final approval under section 112(l) of Pima's program
for delegation of section 112 standards as they apply to sources not
required to obtain a title V permit.
EPA took final action on Pima's title V operating permits program
on October 30, 1996 (61 FR 55910). However, because Pima's title V
program contains certain flaws, EPA did not fully approve it, but
instead granted the program an ``interim approval.'' Under its interim
approval, Pima is required to adopt and submit program changes to EPA
that will correct its program flaws. The program revisions being
approved in this document do not address the program issues identified
by EPA. This final action approving revisions to Pima's title V program
therefore does not constitute a full approval of Pima's title V
program.
DATES: This rule is effective on October 23, 1998.
ADDRESSES: Copies of Pima's submittals and other supporting information
used in developing this final approval are available for inspection
(AZ-Pima-97-1-OPS and AZ-Pima-97-2-OPS) during normal business hours at
the following location: U.S. Environmental Protection Agency, Region 9;
75 Hawthorne Street; San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Erica Ruhl (telephone 415-744-1171),
Mail Code AIR-3, U.S. Environmental Protection Agency, 75 Hawthorne
Street; San Francisco, CA 94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
As required under title V of the Clean Air Act as amended (1990),
EPA has promulgated rules that define the minimum elements of an
approvable state operating permits program and the corresponding
standards and procedures by which the EPA will approve, oversee, and
withdraw approval of state operating permits programs (57 FR 32250,
July 21, 1992). These rules are codified at 40 CFR part 70. Title V
requires states to develop and submit to EPA, by November 15, 1993,
programs for issuing these operating permits to all major stationary
sources and to certain other sources. The EPA's program review occurs
pursuant to section 502 of the Act, which outlines criteria for
approval or disapproval.
On November 15, 1993, Pima's title V program was submitted. EPA
proposed interim approval of the program on July 13, 1995 (60 FR
36083). The fee provisions of the program were found to be fully
approvable. On November 14, 1995, in response to changes in state law,
Pima amended its fee provisions under Chapter 12, Article VI of Title
17 of the Pima County Air Quality Control Code. Those changes were
submitted to EPA on January 14, 1997, after it promulgated final
interim approval of Pima's title V program (61 FR 55910, October 30,
1996). EPA subsequently proposed to approve Pima's revised fee
provisions (62 FR 16124, April 4, 1997).
On July 17, 1997, EPA received a submittal from ADEQ on behalf of
Pima requesting that EPA approve a revision to the applicability
provisions of Pima's title V program. Because EPA's evaluation of
Pima's title V fee provisions takes into account the numbers and types
of sources requiring permits, EPA decided it would be appropriate to
reevaluate the approvability of the fee changes in the context of the
change to program applicability. EPA therefore withdrew its proposed
approval of Pima's revised fee program (63 FR 7109, February 12, 1998)
and, in the same document, proposed approval of the changes to Pima's
fee and applicability provisions.
[[Page 50770]]
II. Final Action and Implications
A. Analysis of State Submission
The analysis of the submittals given in the February 12, 1998
proposed action is supplemented by the discussion of public comment
made on the notice of proposed rulemaking (see section II.B. of this
document). That analysis remains unchanged and will not be repeated in
this final document.
1. Applicability
The amendment to the applicability provisions of Pima's title V
program was submitted by the Arizona DEQ on July 17, 1997. The
submittal includes the deletion of the term ``Title V Source'' from
Pima County Air Quality Control Code (PCC) 17.04.340.133, proof of
adoption, evidence of necessary legal authority, evidence of public
participation including comments submitted on the rulemaking, and a
supplemental legal opinion from the County Attorney regarding the legal
adequacy of Pima's title V program, including implementation of section
111 and 112 of the Clean Air Act. In a letter dated November 7, 1997,
Pima clarified which sections of its title V program it wished to have
rescinded and which sections approved.
With this change, only those sources required to obtain a Class I
(title V) permit, (i.e., major sources, solid waste incinerators
required to obtain a permit pursuant to section 129(e) of the CAA, and
sources required by the Administrator to obtain a permit), are subject
to the District's title V program. Non-major sources, including those
regulated under sections 111 and 112 of the CAA, are deferred from the
requirement to obtain a Class I/title V permit, to the extent allowed
by the Administrator.
2. Program for Delegation of Section 112(l) Standards as Promulgated
In a letter dated December 2, 1997, Pima specifically requested
approval under section 112(l) of a program for delegation of unchanged
section 112 standards applicable to sources that are not subject to
mandatory permitting requirements under title V. (See letter from David
Esposito, Director, PDEQ to David Howekamp, Director, Air and Toxics
(sic) Division, EPA Region IX.)
3. Fees
An amendment to the fee provisions of Pima's title V program was
submitted by the Arizona DEQ on January 14, 1997. The submittal
includes the revised fee regulations (Chapter 12, Article VI of Title
17 of the Pima County Air Quality Control Code as amended on November
14, 1995), a technical support document, and a legal opinion by the
County Attorney. Additional materials, including proof of adoption and
a commitment to provide periodic updates to EPA regarding the status of
the fee program, were submitted on February 26, 1997. In a letter dated
July 25, 1997, Pima submitted a detailed discussion of the expected
costs of and anticipated revenue from its title V program.
B. Public Comments and Responses
Only one comment letter was received. That letter, from Steven Burr
of Lewis and Roca (representing the Arizona Mining Association or
``AMA'') incorporated by reference both the comments AMA made on the
EPA's previous proposal to approve Pima's fee provisions (62 FR 16124,
April 4, 1997) as well as AMA's ``supplemental comments'' dated January
2, 1998.
1. Adequacy of Fees under Section 502(b)(3) of the CAA
Section 502(b)(3) of the Act requires that each permitting
authority collect fees sufficient to cover all reasonable direct and
indirect costs required to develop and administer its title V operating
permits program. The commenter disagreed with EPA's proposed approval
of the revision to the Pima County title V program because he contends
the fee program fails to meet the minimum requirements of section
502(b)(3) of the Clean Air Act. The commenter states that the
documentation submitted by Pima County fails to demonstrate that the
County's fees will cover the full costs of the title V program and that
the fees Pima County collects will not cover the costs of issuing
permits to existing title V sources.
Pima uses a combination of emissions fees and fees for issuance and
revision to cover program costs.
Fees for issuance and revision. Pima's fee provisions require that
applicants for permits to construct and operate that are subject to
title V must pay the total actual cost of reviewing and acting upon
applications for permits and permit revisions. See sections
17.12.510.G. and 17.12.510.I. These fees are used to cover the cost of
issuing permits to new sources and for processing revisions to permits.
Pima estimated the permitting-related average hourly billing costs for
permitting of title V facilities, including salary, fringe benefits,
direct non-salary costs and indirect costs including cost estimates of
various types of permit related activities. The estimated hourly cost
is $53.60. However, because state law caps hourly fees at $53.00,
Pima's hourly charges are capped at $53.00. See section 17.12.510.M.
Although this cap is 60 cents per hour less than the District's
estimated hourly costs for permit processing, EPA finds this provision
to be fully approvable. In view of the fact that the estimation of
program cost inherently involves projections and approximation, and of
the fact that fee adequacy can be monitored on an ongoing basis as the
program is implemented, EPA concludes that this provision is sufficient
to adequately fund the program.
Emission Fees. Emission fees are used by Pima to cover the direct
and indirect costs of the title V related activities not covered the
fees charged for permit issuance to new sources and revisions to all
sources. These activities are: (1) part 70 program development and
implementation; (2) issuance of title V permits to existing sources;
(3) part 70 source compliance, including inspection services; and (4)
part 70 business assistance, which helps sources determine and meet
their obligations under part 70. Pima estimates the annual cost of
these activities in the first three years of program implementation to
range between $83,562 and $87,674. Based upon the fall 1996 dollar per
ton value ($35.78), invoicing records and emissions estimates, Pima
projects it will collect $98,275 in emissions fees annually.
As set out in the February 12, 1998 notice of proposed approval,
EPA finds that Pima County's fee provisions meet the requirements of
502(b)(3). Materials submitted by Pima County demonstrate that the cost
of issuing initial permits to existing title V sources is covered by
annual emission fees.
2. Validity of EPA's October 30, 1996 Interim Approval
On October 30, 1996, EPA promulgated interim approval of Pima's
title V program. The commenter observes that Pima County adopted the
amendment to its fee rule almost one year before EPA granted interim
approval to the title V program. Pima County did not, however, submit
the amended rule until after EPA had granted interim approval. The
commenter argues that the fee rule that EPA purported to approve does
not exist and did not exist when EPA issued its interim approval,
therefore, Pima County's title V program does not include an approved
or approvable fee rule. The commenter contends that a fee rule
satisfying section 502(b)(3) is a requirement for interim approval and
therefore, EPA should acknowledge that
[[Page 50771]]
its interim approval of Pima County's title V program is void.
The proposal on which EPA is taking final action is limited to the
question of whether the revision to Pima's fee provisions is approvable
under part 70. As described in the notice of proposed rulemaking and in
the preceding response, EPA has evaluated the submitted revision to
Pima's program and has found that it meets the requirements of part 70
and section 502(b) of the Act. An evaluation of the validity of EPA's
grant of interim approval to Pima's title V program is beyond the scope
of this action. The issue raised in this comment has also been raised
as an issue in a petition to the Ninth Circuit challenging EPA's final
interim approval of Pima's title V program. EPA believes that is the
appropriate forum in which to resolve this issue.
3. Validity of Pima's Fee Provisions under State Law
The commenter contends that the revision to the Pima County title V
program cannot be approved by EPA because it is unenforceable as a
matter of state law. The commenter notes that the Arizona Revised
Statutes (section 49-112(B)) require that fees charged by county
agencies must be approximately equal to or less than permit fees
charged by the Arizona Department of Environmental Quality (ADEQ). He
contends that, although the language in the amendment Pima adopted is
identical to the language in ADEQ's rule,1 Pima County's
interpretation of the rules, as described by both the County and EPA in
its proposed approval, would result in substantially higher fees being
paid in Pima County. The commenter states that ADEQ interprets its rule
to apply only to new sources while Pima charges fees to both new and
existing sources.
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\1\ The language referenced is: ``Before the issuance of a
permit to construct and operate a source that is required to obtain
a permit pursuant to title V of the Act, the applicant for the
permit shall pay to the Director a fee billed by the Director
representing the total actual cost of reviewing and action upon the
application.'' AMA alleges that Pima interprets this provisions to
allow the collection of a ``fee for service'' from an existing
source for its initial a permit to operate whereas ADEQ interprets
this to mean that a fee for service may only be collected from new
sources that are applying for both a permit to construct and a
permit to operate.
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In order to determine if the commenters allegations were well
founded, on May 21, 1997, EPA sent a letter to Pima County requesting
information on differences between Pima County and ADEQ with respect to
how their fee provisions are implemented. EPA asked that Pima address
the question of whether fees are charged for the issuance of permits to
existing sources. On July 25, 1997, Pima County responded to EPA's
letter. The response included an affidavit prepared by the Pima County
Attorney's office and signed by Pima staff stating that the District
does not charge a permit processing fee to existing part 70 sources. As
explained above, the cost of issuing initial permits to existing
sources is covered by revenue from emissions fees. In the absence of
any documentation of practices to the contrary, EPA has concluded that
Pima's implementation of the fee rule is consistent with ADEQ's
implementation.
4. Timing of EPA Action in Light of AMA Litigation in State Court
The commenter points out that the AMA is in the midst of litigating
in state court the question of the validity of the Pima County fee
rules that EPA now proposes to approve. He states his belief that it is
not the EPA's policy to substitute its judgement for that of a state
court on a matter of the legality of a state provision and that, at the
very least, EPA should defer action on the approval of Pima County's
fee rule until the court has decided the issue of its legality. The
commenter goes on to say that if the court upholds AMA's position, the
rule will be declared void ab initio and that EPA has no authority to
approve a fee rule that is not enforceable as a matter of state law.
As long as the rule is effective as a matter of state law, EPA will
treat it as such. If a state court strikes down the law, this might be
a basis for EPA action, consistent with 70.10(c)(1)(i)(B). For the
purpose of this federal approval action, and without expressing further
opinion on the validity of the commenter's suit in state court, it does
not appear to EPA that Pima's fee provisions run afoul of state law. As
required by Arizona Revised Statutes section 49-112(B), Pima's fee
provisions are consistent with those of ADEQ, and as evidenced by
Pima's submittal, County representatives have attested that the County
will implement its fee rule in a manner consistent with that of ADEQ.
EPA does not have reason to believe that Pima County's fee rule is
unenforceable as a matter of state law. As explained in the February
12, 1998 Federal Register document, EPA is satisfied that Pima's fee
rules meet the requirements of title V of the CAA and 40 CFR part 70.
Section 70.4(i) of part 70 does require that permitting authorities
keep EPA apprised of any proposed changes to their basic statutory or
regulatory structure. EPA therefore expects that if any part of a part
70 program is deleted or modified, either by the district hearing board
or by court action, it will be notified by the permitting authority.
Were such changes to render a program deficient or prevent a permitting
authority from adequately implementing the program, EPA would follow
the procedures set of under section 70.4(i) to ensure that such
inadequacies are promptly corrected. If corrections are not made in a
timely manner, part 70 sets out a mechanism for the withdrawal of its
approval of the program and for implementation of the federal operating
permits program in its place. See section 70.10.
C. Final Action
EPA is finalizing its approval of the submitted amendments to the
applicability and fee provisions of Pima's title V operating permits
program. EPA is also finalizing its approval under section 112(l) to
include Pima's program for delegation of section 112 standards as they
apply to those sources not required to obtain a title V permit.
EPA's approval of the change in applicability results in the
following revision to Pima's title V program: Rule 17.04.340.240
(definition of ``title V source'' adopted September 28, 1993) will be
removed from the County's title V program.
EPA's approval of the amendments to Pima County's fee provisions
results in the following changes to the County's title V program. Rules
17.12.320, 17.12.500, 17.12.520 , 17.12.580 (adopted September 28,
1993); Rule 17.12.610 (adopted November 14, 1989); and Rules 17.12.640
and 17.12.650 (adopted December 10, 1991) will be removed. Rules
17.12.320, 17.12.500, and 17.12.510 (adopted November 14, 1995) will be
added. With this rulemaking, EPA is taking action to approve the fee
changes and bring the approved version of the program in line with the
current version in place at the county.
IV. Administrative Requirements
A. Docket
Copies of Pima's submittal and other information relied upon for
this final action, including public comments, are contained in dockets
(AZ-Pima-97-1-OPS, and AZ-Pima-97-2-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 approval. The dockets are available for
[[Page 50772]]
inspection at the location listed under the ADDRESSES section of this
document.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this action will not
have a significant economic impact on a substantial number of small
entities. The EPA's actions under section 502 of the Act do not create
any new requirements, but simply address revisions to Pima County's
existing operating permits program that were submitted to satisfy the
requirements of 40 CFR part 70.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),
Pub. L. 104-4, establishes requirements for Federal agencies to assess
the effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with Federal mandates that may
result in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. Under section 205, the 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 the 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 in this
rulemaking document 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, in any
one year. 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. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit 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 United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective October 23, 1998.
E. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether its regulatory actions are ``significant'' and
therefore subject to Office of Management and Budget review and the
requirements of the Executive Order. The Order defines a significant
regulatory action ``as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $ 100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlement, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. The Office of Management and Budget has exempted this action
from Executive Order 12866 review.
F. Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866, and because it
does not involve decisions based on environmental health or safety
risks.
G. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule approves preexisting State requirements and does not
impose new Federal mandates on State, local or tribal governments. The
rule does not impose any enforceable duties on these entities.
Accordingly, the requirements of section 1(a) of Executive Order 12875
do not apply to this rule.
H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of
[[Page 50773]]
regulatory policies on matters that significantly or uniquely affect
their communities.'' Today's rule does not impose new Federal mandates
on Indian tribal governments and does not significantly or uniquely
affect the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
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.
Authority: 42 U.S.C. sections 7401-7671q.
Dated: September 14, 1998.
Felicia Marcus,
Regional Administrator, Region 9.
Part 70, Chapter I, 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 revising paragraph (c) under
Arizona to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Arizona
* * * * *
(c) Pima County Department of Environmental Quality:
(1) Submitted on November 15, 1993 and amended on December 15,
1993; January 27, 1994; April 6, 1994; April 8, 1994; August 14,
1995; July 22, 1996; August 12, 1996; interim approval effective on
November 29, 1996; interim approval expires June 1, 2000.
(2) Revisions submitted on January 14, 1997; February 26, 1997;
July 17, 1997; July 25, 1997; November 7, 1997; approval effective
October 23, 1998; interim approval expires June 1, 2000.
* * * * *
[FR Doc. 98-25323 Filed 9-22-98; 8:45 am]
BILLING CODE 6560-50-P
