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Clean Air Act Proposed Full Approval of Operating Permit Program; Bay Area Air Quality Management District, California
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Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 19, 2001 (Volume 66, Number 203)]
[Proposed Rules]
[Page 53140-53147]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc01-28]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[CA 055-OPP; FRL-7086-7]
Clean Air Act Proposed Full Approval of Operating Permit Program;
Bay Area Air Quality Management District, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed Rule.
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SUMMARY: EPA is proposing to approve the operating permit program of
the Bay Area Air Quality Management District (``Bay Area'' or
``District''). The Bay
[[Page 53141]]
Area 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' jurisdictions. EPA granted interim
approval to the Bay Area operating permit program on June 23, 1995 but
listed certain deficiencies in the program preventing full approval.
Bay Area has revised its program to correct the deficiencies of the
interim approval and this action proposes full approval of those
revisions. The District has also made other revisions to its program
since interim approval was granted and EPA is also proposing to approve
most of those revisions in this action.
DATES: Comments on this proposed rule must be received in writing by
November 19, 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.
Attention: David Wampler. You can inspect copies of the Bay Area's
submittals, and other supporting documentation relevant to this action,
during normal business hours at Air Division, EPA Region 9, 75
Hawthorne Street, San Francisco, California, 94105.
You may also see copies of the District's submitted operating
permits program at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
The Bay Area Air Quality Management District, 939 Ellis Street, San
Francisco, CA 94109-7799.
An electronic copy of Bay Area's operating permit program
(Regulation 2, Rule 6) rules may be available via the Internet at
http://www.arb.ca.gov/drdb/ba/cur.htm. 
However, the version of District
Regulation 2, Rule 6 at the above internet address may be different
from the version submitted to EPA for approval. Readers are cautioned
to verify that the adoption date of Regulation 2, Rule 6 listed is the
same as the rule submitted to EPA for approval. The official submittal
is available only at the three addresses listed above.
FOR FURTHER INFORMATION CONTACT: David Wampler, EPA Region IX, Permits
Office (AIR-3), U.S. Environmental Protection Agency, Region IX, (415)
744-1256 or wampler.david@epa.gov.
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:
I. What Is the Operating Permit Program?
II. What Is Being Addressed in this Document?
III. Impact of Today's Proposed Full Approval on the District's SIP-
Approved Federally-Enforceable State Operating Permits Program
IV. Are There Other Issues with the Program?
V. What Are the Program Changes That EPA Is Proposing to Approve?
VI. What Is Involved in this Proposed Action?
VII. Discussion on the Revision to the Definition of Potential to
Emit
VIII. Public Comments
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.
One goal 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
(NOX), 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.
II. What Is Being Addressed in This Document?
Bay Area submitted, via the California Air Resources Board (CARB)
its initial operating permits program to EPA on March 23, 1995. Because
the Bay Area's operating permit program substantially, but not fully,
met the criteria outlined in the implementing regulations codified at
40 Code of Federal Regulations (CFR) part 70, EPA granted interim
approval of the program, and conditioned full approval on the District
revising its program to correct the deficiencies. The interim approval
notice published on June 23, 1995 [60 FR 32606], described the program
deficiencies and revisions that had to be made in order for the Bay
Area's program to receive full approval. Since that time, the Bay Area
has revised, and the California Air Resources Board, on behalf of the
Bay Area, has submitted a revision to the Bay Area's operating permit
program; this revision was submitted May 30, 2001. This Federal
Register notice describes the changes that have been made to the Bay
Area operating permit program as submitted on May 30, 2001, and the
basis for EPA proposing full approval of the program.
III. Impact of Today's Proposed Full Approval on the District's
SIP-Approved Federally-Enforceable State Operating Permits Program
Concurrent with our action on June 23, 1995 to grant final interim
approval to the Bay Area's title V program, EPA granted, pursuant to 40
CFR part 52, final approval to the District's Federally-Enforceable
State Operating Permit Program (FESOP) which is contained in portions
of Regulation 2, Rule 6, and the District's Manual of Procedures,
Volume II, Part 3 (MOP) thereby incorporating the FESOP into the
California SIP. In the process of correcting cited deficiencies in its
operating permit program, the District also revised language in
Regulation 2, Rule 6 related to its FESOP rule. Even though this
proposed rulemaking action discusses the District's FESOP program,
today's proposed approval is for part 70 purposes only. EPA is not
proposing to approve, for SIP purposes under 40 CFR part 52, those
portions of Regulation 2 Rule 6 that involve the FESOP program. We can
only take action on the Regulation 2, Rule 6 for SIP purposes only
after the State submits it to us.
IV. Are There Other Issues With the Program?
On May 22, 2000, EPA promulgated a rulemaking that extended the
interim approval period of 86 operating permits
[[Page 53142]]
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 notice 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 notice.
EPA received a comment letter from one organization on what they
believe to be deficiencies with respect to Title V programs in
California. 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. A NOD will not necessarily be limited
to deficiencies identified by citizens and may include any deficiencies
that we have identified through our program oversight.
V. What Are the Program Changes That EPA Is Proposing To Approve?
As discussed in the June 23, 1995 [60 FR 32606]
rulemaking, full
approval of the Bay Area operating permit program was made contingent
upon satisfaction of the following conditions:
Issue (1): Bay Area was required to provide a demonstration that
each activity on its insignificant activities list is truly
insignificant and is not likely to be subject to an applicable
requirement. Alternatively, the District may establish emissions level
cut-offs, in which activities emitting below the cut-offs would qualify
as insignificant. In the latter case, the District must demonstrate
that the cut-off emissions levels are insignificant compared to the
level of emissions from and type of units that are required to be
permitted or subject to applicable requirements. In addition, Bay Area
must revise Regulation 2, Rule 6 to state that activities needed to
determine the applicability of, or impose applicable requirements on,
the facility may not qualify as insignificant activities.
(Secs. 70.5(c) and 70.4(b))
Rule Change: Instead of demonstrating that each activity on the Bay
Area's insignificant activity list is truly insignificant, the District
corrected this deficiency by establishing significant source emissions
cut-offs below which activities would be insignificant. To implement
this correction, the District amended Regulation 2, Rule 6, section 239
to define ``significant source'' as a source that has a potential to
emit of more than 2 tons per year of any regulated air pollutant, or
more than 400 lbs per year of any hazardous air pollutant. In addition,
the application content section of rule 2-6-405 requires operating
permit applications to identify and describe each permitted source at
the facility and each source or other activity that is exempt from the
requirements to obtain a permit or excluded from District rules or
regulations under Regulation 2, Rule 1. Furthermore, all part 70 permit
applications are required to contain a list of all applicable
requirements that apply to each source (Rule 2-6-405.5). Finally,
Section 2.1.2 of the Manual of Procedures (``MOP'') requires
applications to include other information necessary to implement and
enforce other applicable requirements or determine the applicability of
any such requirement on any source (whether permitted, exempt, or
excluded) or any other activity.
Issue (2): Bay Area was required to include a term consistent with
the Part 70 definition of ``applicable requirement,'' and use that term
consistently in rules 2-6-409.1, 2-6-409.2 and throughout the
regulation.
Rule Change: The District corrected this deficiency by revising the
definition of ``applicable requirement'' at 2-6-202 to include a
reference to the federal definition of ``applicable requirement'' as
defined in 40 CFR 70.2. They have also added the term to 2-6-409.1 and
409.2.
Issue (3): Bay Area rule 2-6-409 was required to be revised to
ensure that permit terms and conditions assure compliance with all
applicable requirements (Sec. 70.7(a)(1)(iv)) and that permits contain
emission limitations and standards (Sec. 70.6(a)(1)) and compliance
certification requirements (Sec. 70.6(c)(1)) that assure compliance
with all applicable requirements. Prior to being revised, the rule only
required the District's operating permits to include requirements for
testing, monitoring, reporting, and recordkeeping sufficient to assure
compliance with the terms and conditions of the permit and the
applicable requirements themselves.
Rule Changes: The District corrected this deficiency by revising
the permit content section of Rule 2-6-409, to: (1) Require that all
applicable requirements be included in the permit; and (2) add
requirements to the compliance schedule section of permit content
requirements (see 2-6-409.10.3). Furthermore, Rule 2-6-409.7 already
required that the permit contain a statement that the owner or operator
must comply with all permit conditions and limitations set forth in the
permit. These additions will ensure that the permits contain all
necessary requirements to assure compliance with applicable
requirements.
Issue (4): Bay Area was required to show that certifications signed
by the responsible official affirmatively state that they are based on
truth, accuracy, and completeness, and that the certifications be based
on information and belief formed after reasonable inquiry. Bay Area
needed to revise Rules 2-6-405.9, 2-6-502, and the MOP (Sections 4.5
and 4.7), and any other certification provisions to ensure that both
elements are explicitly required. (Sec. 70.5(d))
Rule Change: The District corrected this deficiency by revising
several parts of the rule. First, the District added the following to
the permit content section at 409.20: ``A certification requirement for
all documents submitted pursuant to a major facility review permit. For
applications, compliance certifications, and reports, the certification
shall state that based on information and belief formed after
reasonable inquiry, the statements and information in the document are
true, accurate, and complete. The certifications shall be signed by a
responsible official for the facility.'' Second, the District revised
the application content requirements at Rule 2-6-405.9 to state that
applications must contain: ``A compliance certification by a
responsible official of the facility that the application forms and all
accompanying reports and other required compliance certifications are
true, accurate, and complete based on information and belief formed
after reasonable inquiry; and* * *.'' Third, the District revised the
Monitoring and Records section at Rule 2-6-502 to state that: ``A
responsible official shall certify that all such reports are true,
accurate, and complete based on information and belief formed after
reasonable inquiry.'' Finally, the MOP Sections 4.5 and 4.7, were
revised to include these provisions and section 2-6-426 was added and
requires compliance certifications consistent with Part 70. (See
Sec. 70.5(d)).
[[Page 53143]]
Issue (5): Bay Area was required to revise Regulation 2-6 to define
and require notice to affected states. Alternatively, Bay Area could
have made a commitment to: (1) Initiate rule revisions upon being
notified by EPA of an application by an affected tribe for state
status, and (2) provide affected state notice to tribes upon their
filing for state status (i.e., prior to Bay Area's adopting affected
state notice rules). (Secs. 70.2 and 70.8(b)
Rule Change: The District corrected this deficiency by adding the
term ``Affected State'' at Rule 2-6-242 to provide: ``A State whose air
quality may be affected by a facility and that is contiguous to the
State of California or a state that is within 50 miles of a permitted
source within the District.'' In addition, the District added
notification requirements for affected states consistent with 40 CFR
70.8(b)(1) to Rule 2-6-412. The District also revised Rule 2-6-412.6,
consistent with 40 CFR 70.8(b)(2), to require written notification to
EPA and affected states of any refusal to accept all recommendations
from an affected state received during the public comment period for a
draft permit.
Issue (6): The District was required to eliminate the phrase ``but
not limited to'' from the definition of ``administrative permit
amendment.'' (Sec. 70.7(d)(1)(iv))
Rule Change: The District corrected this deficiency by revising the
definition at 2-6-201 to eliminate the problematic phrase.
Issue (7): The District was required to revise Rule 2-6-404.3 to
limit the universe of significant permit modification applications due
12 months after commencing operations to only those applications for
revisions pursuant to section 112(g) and title I, parts C and D of the
Act that are not prohibited by an existing operating permit. Except in
the above circumstances, a source is not allowed to operate the
proposed change until the permitting authority has revised the source's
operating permit. (Sec. 70.5(a)(1)(ii)).
Rule Change: Bay Area corrected this deficiency by revising Rule 2-
6-404.3 to be consistent with federal regulations at 40 CFR Part 70.
The definition now reads: ``An application for a significant permit
revision shall be submitted by the applicant prior to commencing an
operation associated with a significant permit revision. Where an
existing federally enforceable major facility review permit condition
would prohibit such change in operation, the responsible official must
request preconstruction review and obtain a major facility review
permit revision before commencing the change.''
Issue (8): Bay Area was required to eliminate the extended review
period from the minor permit modification procedures at Rule 2-6-414.2
because it is inconsistent with Rules 2-6-410.2 and 40 CFR
70.7(e)(2)(iv).
Rule Change: The District corrected this deficiency by revising
Rule 2-6-414.2 to read: ``The APCO shall act on the proposed minor
revision within 15 days after the end of EPA's 45-day review period or
within 90 days of receipt of the permit application whichever is
later.'' This is now consistent with part 70 and 2-6-410.2.
Issue (9): The District was required to revise 2-6-412.1 to include
notice ``by other means if necessary to assure adequate notice to the
affected public.'' (Sec. 70.7(h)(1)) Rule Change: The District
corrected this deficiency by adding the suggested language to Rule 2-6-
412.1.
Issue (10): Bay Area was required to add a provision to the MOP
(section 4.1) to state that only alternative emission control plans
(AECPs) that have been approved into the SIP may be incorporated into
the federally enforceable portion of the permit. (Sec. 70.6(a)(1)(iii))
Rule Change: The District has not revised the MOP as specified in
our final interim approval. However, the District has corrected this
deficiency by stating in a letter dated July 7, 2000 that there are no
general AECP provisions in District rules. The only specific AECP
provisions in the District rules are contained in the District coating
rules, all of which have been SIP approved. Therefore, it is not
possible for non-SIP-approved AECP provisions to be incorporated into
the federally enforceable portion of an operating permit. Further, the
language in the MOP is not inconsistent with federal regulations at
Part 70, which is silent on how the District must treat AECPs. EPA
understands that the District will identify only SIP-approved AECP
provisions, as federally enforceable in operating permits.
Issue (11): Bay Area was required to add emissions trading
provisions consistent with 40 CFR 70.6(a)(10), which requires that
trading must be allowed where an applicable requirement provides for
trading increases and decreases without a case-by-case approval.
Rule Change: The District corrected this deficiency by revising
Rule 2-6-306--``Emissions Trading'' to be consistent with 40 CFR Part
70 as follows: ``The APCO shall allow emissions trading within a
facility that has a major facility review permit in accordance with the
procedures and restrictions set forth in Rule 2-6-418. This provision
shall not apply to the phase II acid rain portion of any facility
subject to this Rule.''
Issue (12): Bay Area was required to add a requirement to
Regulation 2-6 that any document required by an operating permit must
be certified by a responsible official. (Sec. 70.6(c)(1))
Rule Change: The District has added the required language at the
end of Rule 2-6-409.20 which now states, ``[t]he certifications shall
be signed by a responsible official for the facility.''
Issue (13): Bay Area was required to revise Rule 2-6-224 and Rule
2-6-409.10 to specify that all progress reports must include: (1) Dates
when activities, milestones, or compliance required in the schedule of
compliance were achieved; and (2) an explanation of why any dates in
the schedule of compliance were not or will not be met and any
preventive or corrective measures adopted. (Sec. 70.6(c)(4)(i and ii))
Rule Change: Bay Area responded and revised Section 2-6-409.10 to
include a requirement that compliance plans must include deadlines for
achieving each item in the plan, and a requirement that progress
reports must be submitted every 6 months. Also, Section 409.10.3 now
includes the statement that, ``[p]rogress reports shall contain the
dates by which each item in the plan was achieved, and an explanation
of why any dates in the schedule of compliance were not or will not be
met, and any preventative or corrective measure adopted.'' No changes
have been made or are necessary to District Rule 2-6-224 because such
changes would be redundant with the changes already made in 2-6-409.
Issue (14): Bay Area was required to revise Section 4.5 of the MOP
and add a provision to Rule 2-6-409 to require that compliance
certifications be submitted more frequently than annually if specified
in an underlying applicable requirement. (Sec. 70.6(c)(4))
Rule Change: The District corrected this deficiency by adding new
Section 2-6-409.17 that requires permits to include, ``a requirement
for annual compliance certifications, unless compliance certifications
are required more frequently than annually in an applicable requirement
or by the APCO.''
Issue (15): At the time of the interim approval, Bay Area indicated
in its program description that it intended to process new units that
do not affect any federally enforceable permit condition as ``off-
permit'' (see Section II, p. 21 and Staff Report, pp. 3-4). Bay Area
was required to submit a letter revising its
[[Page 53144]]
program description to indicate that it will not process new units as
``off-permit'' or it could have revised its rule to include the part 70
off-permit provisions as defined in federal regulations at 40 CFR
70.4(b)(14) and 70.4(b)(15).
Rule Change: Bay Area corrected this deficiency by providing a
letter to Jack Broadbent, Director, Region IX, Air Division, dated May
24, 2001, from the Bay Area APCO, Ellen Garvey that stated: ``The
District has decided not to incorporate the `off-permit' provisions
into its current program submittal.'' Therefore, no off-permit changes
will be allowed under the Bay Area program.
Issue (16): Bay Area was required to revise 2-6-222 defining
``regulated air pollutant'' to be consistent with the Federal
definition (Sec. 70.2) and include pollutants subject to any
requirement established under section 112 of the Act, including
sections 112(g), (j), and (r).
Rule Change: The District corrected this deficiency by revising the
definition of regulated air pollutant at Rule 2-6-222.5 to state, ``* *
* any pollutant that is subject to any standard or requirement
promulgated under Section 112 of the Clean Air Act, including sections
112(g), (j) and (r).''
Issue (17): One of EPA's conditions for full title V program
approval was the California Legislature's revision of the Health and
Safety Code to eliminate the provision that exempts ``any equipment
used in agricultural operations in the growing of crops or the raising
of fowl or animals'' from the requirement to obtain a permit. See
California Health and Safety Code section 42310(e). Even though the
local Districts have, in many cases, removed the title V exemption for
agricultural sources from their own rules, the Health and Safety Code
has not been revised to eliminate this provision.
In evaluating the impact of the Health and Safety Code exemption,
EPA believes there are a couple of key factors to consider. First, many
post-harvest activities are not covered by the exemption and, thus, are
still subject to title V permitting. For example, according to the
California Air Resources Board (CARB), the Health and Safety Code
exemption does not include activities such as milling and crushing, or
canning or cotton ginning operations. Activities such as these are
subject to review under the State's title V programs. See letter from
Michael P. Kenny, Executive Officer, California Air Resources Board, to
Jack Broadbent, Director, Air Division, U.S. EPA Region 9, dated
September 19, 2001. In addition, since the granting of interim
approval, the EPA has discovered that, in general, there is not a
reliable or complete inventory of emissions associated with
agricultural operations in California that are subject to the
exemption. Although further research on this issue is needed, many
sources with activities covered by the exemption may not have emission
levels that would subject them to title V, and the State and/or
individual Districts may be able to demonstrate that none of the
sources that are exempt under the State law are subject to title V.
Based, in part, on these factors, EPA has tentatively concluded
that requiring the immediate commencement of title V permitting of the
limited types of agricultural activities presently subject to the
exemption, without a better understanding of the sources and their
emissions, would not be an appropriate utilization of limited local,
state and federal resources. As a result, despite the State of
California's failure to eliminate the agricultural permitting
exemption, EPA is proposing to grant full approval to local Air
District operating permit programs and allow a deferral of title V
permitting of agricultural operations involved in the growing of crops
or the raising of fowl or animals for a further brief period, not to
exceed three years. During the deferral period, we expect to develop
the program infrastructure and experience necessary for effective
implementation of the title V permitting program to this limited
category of sources.
EPA believes it is appropriate to defer permitting for this limited
category of agricultural sources because the currently available
techniques for determining emissions inventories and for monitoring
emissions (e.g., from irrigation pumps and feeding operations) are
problematic and will be dramatically enhanced by several efforts
currently being undertaken with the cooperation and participation of
the operators and agricultural organizations, as well as EPA, other
federal agencies, and the State and local air pollution agencies. For
example, the National Academy of Sciences is undertaking a study
addressing emissions from animal feeding operations. Their report is
due next year. In addition, EPA's Office of Air and Radiation is
working with the U.S. Department of Agriculture to better address the
impact of agricultural operations on air quality. We consider the
effort to evaluate the existing science, improve on assessment tools,
collect additional data, remove any remaining legal obstacles, and
issue any necessary guidance within the three year deferral time frame
to be ambitious. We welcome comments on other areas that might also
warrant study, as well as ways that this work might be done more
quickly.
During the interim deferral period, EPA will continue to work with
the agricultural industry and our state and federal regulatory partners
to pursue, wherever possible, voluntary emission reduction strategies.
At the end of this period, EPA will, taking into consideration the
results of these studies, make a determination as to how the title V
operating permit program will be implemented for any potential major
agricultural stationary sources.
Rule Change: In addition to the statutory exemption in the Health
and Safety Code, Bay Area's regulations contained an exemption;
however, the District has since revised its regulations to allow for
permitting once state law provides for it. Specifically, Regulation 1,
Section 110 and Regulation 2, Rule 1 were revised to allow for
permitting pursuant to the California Health and Safety Code.
VI. What Is Involved in This Proposed Action?
The Bay Area has corrected the deficiencies cited in the interim
approval on June 23, 1995 [60 FR 32606]. Thus, EPA is proposing full
approval of the Bay Area operating permit program. In addition, Bay
Area has made other changes to its operating permit program since we
granted interim approval. These changes were not required by EPA to
correct interim approval deficiencies cited in our June 23, 1995
Federal Register. EPA has reviewed the additional changes and proposes
to approve most of the changes. Table 1a and 1b, respectively, list
which rule and MOP subsections we are proposing to approve.
EPA is not acting on some changes that the District made to its
rules; these changes were not required to correct interim approval
issues and may not be approvable. See Table 2 below for a list of the
rule (and MOP) sections of Bay Area's program on which EPA is not
taking action. Please refer to the TSD for additional information on
the basis for our decision to either approve or not act on those other
changes. If a section is not listed in any of the tables below, it
means that there has been no change to that section since interim
approval.
[[Page 53145]]
Table 1a.--Approvable Rule Subsections That Have Been Changed Since
Interim Approval
------------------------------------------------------------------------
Adoption
Approvable rule section and name date
------------------------------------------------------------------------
2-6-101, Description....................................... 5/2/01
2-6-114, Exemption, Non-Road Engines....................... 10/20/99
2-6-201, Administrative Permit Amendment................... 10/20/99
2-6-202, Applicable Requirements........................... 5/2/01
2-6-204, Designated Facility............................... 10/20/99
2-6-206, Facility.......................................... 5/2/01
2-6-207, Federally Enforceable............................. 5/2/01
2-6-211, Independent Power-Production Facility............. 5/2/01
2-6-212, Major Facility.................................... 10/20/99
2-6-215, Minor Permit Revision............................. 10/20/99
2-6-217, Phase II Acid Rain Facility....................... 5/2/01
2-6-218, Potential to Emit (see discussion below and in the 10/20/99
TSD)......................................................
2-6-219, Preconstruction Permit or Review.................. 10/20/99
2-6-222, Regulated Air Pollutant........................... 5/2/01
2-6-226, Significant Permit Revision....................... 10/20/99
2-6-229, Subject Solid Waste Incinerator Facility.......... 10/2099
2-6-230, Synthetic Minor Facility.......................... 10/20/99
2-6-231, Synthetic Minor Operating Permit.................. 10/20/99
2-6-232, Synthetic Minor Operating Permit Revision......... 10/20/99
2-6-233, Permit Shield..................................... 5/2/01
2-6-235, Actual Emissions.................................. 5/2/01
2-6-236, Modified Source or Facility....................... 5/2/01
2-6-237, Potential to Emit Demonstration................... 10/20/99
2-6-238, Process Statement................................. 10/20/99
2-6-239, Significant Source................................ 10/20/99
2-6-240, State Implementation Plan......................... 10/20/99
2-6-241, 12-month Period................................... 10/20/99
2-6-242, Affected State.................................... 5/2/01
2-6-243, Final Action...................................... 5/2/01
2-6-244, CFR............................................... 5/2/01
2-6-303, Major Facility Review Requirement for Subject 10/20/99
Solid Waste Incinerator Facilities........................
2-6-304 and 2-6-302: Major Facility Review Requirements for 10/20/99
Designated Facilities: and Major Facility Review for Phase
II Acid Rain Facilities:..................................
2-6-306, Emissions Trading................................. 5/2/01
2-6-307, Non-compliance, Major Facility Review............. 10/20/99
2-6-310, Synthetic Minor Operating Permit Requirement...... 10/20/99
2-6-311, Non-compliance, Synthetic Minor Facilities........ 5/2/01
2-6-312, Major Facility Review, Smaller Facilities......... 5/2/01
2-6-314, Revocation........................................ 5/2/01
2-6-401, Facilities Affected (Deleted 10/20/99)............ 10/20/99
2-6-403, Application for Major Facility Review Permit, 2/1/95
Permit Renewal, or Permit Revision........................
2-6-404, Timely Application for Major Facility Review 10/20/99
Permit....................................................
2-6-405, Complete Application for a Major Facility Review 5/2/01
Permit....................................................
2-6-406, Application for Minor Permit Revision............. 10/20/99
2-6-407, Application Shield................................ 10/20/99
2-6-408, Completeness Determination........................ 10/20/99
2-6-409, Permit Content.................................... 5/2/01
2-6-410, Final Action for Initial Permit Issuance, Five- 10/20/99
Year Renewal, Reopenings, and Revisions...................
2-6-411, Reports to EPA and Public Petitions for Major 5/2/01
Facility Review Permits...................................
2-6-412, Public Participation, Major Facility Review Permit 5/2/01
Issuance..................................................
2-6-413, Administrative Permit Amendment Procedures........ 10/20/99
2-6-414.2 and 414.3, Minor Permit Revision Procedures. 5/2/01
(Note: EPA is not acting on subsection 414.1. See table 2,
below)....................................................
2-6-416, Term for Major Facility Review.................... 5/2/01
2-6-418, Emissions Trading Procedures...................... 5/2/01
2-6-420, Application for a Synthetic Minor Operating Permit 5/2/01
2-6-421, Timely Application for a Synthetic Minor Operating 5/2/01
Permit....................................................
2-6-422, Complete Application for a Synthetic Minor 10/20/99
Operating Permit..........................................
2-6-423, District Procedures for Synthetic Minor Operating 5/2/01
Permits...................................................
2-6-424, Applicability..................................... 10/20/99
2-6-425, Facility List..................................... 10/20/99
2-6-426, Compliance Certification Procedures............... 5/2/01
2-6-502, Monitoring Reports, Major Facility Review Permit.. 5/2/01
2-6-503, Monitoring........................................ 5/2/01
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[[Page 53146]]
Table 1b.--Approvable Manual Of Procedures (MOP) Subsections that Have
Been Changed Since Interim Approval
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Approvable Manual of Procedures Section Number and Title
Adoption Date was May 2, 2001
1. Introduction (every paragraph except the second)
2. Applications:
2.1 Major Facility Review Permits
2.2 Synthetic Minor Operating Permits
2.3 Potential to Emit Demonstrations
3. Fees
4. Permit Content:
4.1 Applicable Requirements
4.2 Permit Duration
4.3 Terms and Conditions for Reasonably Anticipated Operating
Scenarios
4.4 Terms and Conditions for Emissions Trading
4.5 Compliance
4.6 Monitoring Requirements
4.7 Recordkeeping and Reporting Requirements
4.8 Emergency Provisions
4.9 Acid Rain Provisions
4.10 Severability Clause
4.11 Standard Conditions to Implement EPA Title V Regulations and
40 CFR 70
4.12 Requirement to Pay Fees
4.13 Provisions Regarding the Federal Enforceability of Conditions
4.14 Inspection and Entry Requirements
4.15 Requirements for Compliance Certification
4.16 Permit Shield
5. Trade Secret and Availability of Information
6. Public Participation & EPA Review:
6.1 Major Facility Review Permits
6.2 Synthetic Minor Operating Permits
6.3 Appeals and Objections
7. District Permitting Procedures:
7.1 Major Facility Review Permits (all paragraphs except the three
paragraphs that precede the last paragraph in the section)
7.2 Synthetic Minor Operating Permits
8. Title IV: Applicability
------------------------------------------------------------------------
Table 2.--List of Rule and MOP Sections That EPA Is Not Acting on as
Part of Today's Proposed Approval
------------------------------------------------------------------------
Adoption
Rule or MOP section and title date
------------------------------------------------------------------------
2-6-113, Exemption, Registered Portable Engines............ 10/20/99
2-6-234, Program Effective Date............................ 10/20/99
2-6-313, Denial, Failure to Comply......................... 5/2/01
2-6-414.1, Minor Permit Revision Procedures................ 5/2/01
MOP--Section 1--Introduction Only the second paragraph 5/2/01
regarding the Program Effective Date......................
MOP--Section 7.1--Major Facility Review Permits. Only the 5/2/01
three paragraphs that precede the last paragraph in
section 7.1...............................................
------------------------------------------------------------------------
VII. Discussion on the Revision to the Definition of Potential To
Emit
Although not required to make the change for full approval, the
District has revised its definition of ``Potential to Emit'' (2-6-218)
(``PTE'') and the discussion of it in the MOP (page 3-2). The revised
language no longer requires that permit limits be only ``federally
enforceable.'' The definition now allows a permit limitation or the
effect it would have on emissions, to be ``enforceable by the District
or EPA.'' Although Bay Area's definition is different from the current
definition in 40 CFR 70.2, litigation has occurred since we granted
interim approval to Bay Area's rule that has affected EPA's
consideration of this issue. In Clean Air Implementation Project v.
EPA, No. 96-1224 (D.C. Cir. June 28, 1996), the court remanded and
vacated the requirement for federal enforceability for potential to
emit limits under part 70. Therefore, even though part 70 has not been
revised it should be read to mean, ``federally enforceable or legally
and practicably enforceable by a state or local air pollution control
agency.'' \1\
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\1\ See also, National Mining Association (NMA) v. EPA, 59 f.3d
1351 (D.C. Cir. July 21, 1995) (Title III) and Chemical
Manufacturing Ass'n (CMA) v. EPA, No. 89-1514 (D.C. Cir. Sept. 15,
1995) (Title I).
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EPA proposes to approve this revision because the Bay Area rule is
consistent with the current meaning of potential to emit as described
above in the court's interpretation. EPA has issued several guidance
memoranda that discuss how the court rulings affect the definition of
potential to emit under CAA Sec. 112, New Source Review (NSR) and
Prevention of Significant Deterioration (PSD) programs, and title V.\2\
In particular, the
[[Page 53147]]
memoranda reiterate the Agency's earlier requirements for practicable
enforceability for purposes of effectively limiting a source's
potential to emit.\3\ For example, practicable enforceability for a
source-specific permit means that the permit's provisions must, at a
minimum: (1) Be technically accurate and identify which portions of the
source are subject to the limitation; (2) specify the time period for
the limitation (hourly, daily, monthly, and annual limits such as
rolling annual limits); (3) be independently enforceable and describe
the method to determine compliance including appropriate monitoring,
recordkeeping and reporting; (4) be permanent; and (5) include a legal
obligation to comply with the limit.
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\2\ See, e.g., January 22, 1996, memorandum entitled, ``Release
of Interim Policy on Federal Enforceability of Limitations on
Potential to Emit'' from John Seitz, Director, OAQPS and Robert I.
Van Heuvelen, Director, Office of Regulatory Enforcement to EPA
Regional Offices; January 31, 1996 paper to the Members of the
Subcommittee on Permit, New Source Review and Toxics Integration
from Steve Herman, OECA, and Mary Nichols, Assistant Administrator
of Air and Radiation; and the August 27, 1996 Memorandum entitled,
``Extension of January 25, 1995 Potential to Emit Transition
Policy'' from John Seitz, Director, OAQPS and Robert Van Heuvelen,
Director, Office of Regulatory Enforcement.
\3\ See, e.g., June 13, 1989 Memorandum entitled, ``Guidance on
Limiting Potential to Emit in New Source Permitting, from Terrell F.
Hunt, Associate Enforcement Counsel, OECA, and John Seitz, Director,
OAQPS, to EPA Regional Offices.'' This guidance is still the most
comprehensive statement from EPA on this subject. Further guidance
was provided on January 25, 1995 in a memorandum entitled ``Options
for Limiting the Potential to Emit (PTE) of a Stationary Source
Under Section 112 and Title V of the Clean Air Act (Act),'' from
John Seitz, Director, OAQPS and Robert I. Van Heuvelen, Director,
ORE to Regional Air Directors. Also please refer to the EPA Region 7
database at http://www.epa.gov/region07/programs/artd/air/policy/
policy.htm for more information.
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EPA will rely on Bay Area implementing this new definition in a
manner that is consistent with the court's decisions and EPA policies.
In addition, EPA wants to be certain that absent federal and citizen's
enforceability, Bay Area's enforcement program still provides
sufficient incentive for sources to comply with permit limits. This
proposal provides notice to Bay Area about our expectations for
ensuring the permit limits they impose are enforceable as a practical
matter (i.e., practicably enforceable) and that its enforcement program
will still provide sufficient compliance incentive. In the future, if
Bay Area does not implement the new definition consistent with our
guidance, and/or has not established a sufficient compliance incentive
absent Federal and citizen's enforceability, EPA could find that the
District has failed to administer or enforce its program and may take
action to notify the District of such a finding as authorized by
Sec. 70.10(b)(1).
VIII. Public Comments
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the Bay Area submittal and other supporting
documentation used in developing the proposed full approval are
contained in docket files maintained at the EPA Region 9 office. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this proposed full approval. The primary purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and (2) to serve as the record in case of judicial review. EPA
will consider any comments received in writing by November 19, 2001.
Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this proposed action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities because it merely approves state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. This rule does not contain any
unfunded mandates and does not significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4) because it proposes to approve pre-existing
requirements under state law and does not impose any additional
enforceable duties beyond that required by state law. This rule also
does not have tribal implications because it will not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000). This rule also does not have Federalism
implications because it will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes
to approve existing requirements under state law, and does not alter
the relationship or the distribution of power and responsibilities
between the State and the Federal government established in the Clean
Air Act. This proposed rule also is not subject to Executive Order
13045, ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001), because it
is not a 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: October 11, 2001.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 01-26407 Filed 10-18-01; 8:45 am]
BILLING CODE 6560-50-P