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Clean Air Act Full Approval of Operating Permit Program; San Joaquin Valley Unified Air Pollution Control District, California
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[Federal Register: October 19, 2001 (Volume 66, Number 203)]
[Proposed Rules]
[Page 53151-53155]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc01-30]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[CA 050-OPP; FRL-7087-6]
Clean Air Act Full Approval of Operating Permit Program; San
Joaquin Valley Unified Air Pollution Control District, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to fully approve the operating permit program
for the San Joaquin Valley Unified Air Pollution Control District
(``San Joaquin'' or ``District''). The District's 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
District's operating permit program on April 24, 1996. This action
proposes approval of revisions to the District's permit program that
were submitted to satisfy the conditions for full approval.
DATES: Comments on the program revisions discussed in this proposed
action must be received in writing by November 19, 2001.
ADDRESSES: Written comments on this action should be addressed to
Gerardo Rios, Air Division (AIR-3), EPA Region IX, 75 Hawthorne Street,
San Francisco, California, 94105. You can inspect copies of the
District's submittal, and other supporting documentation relevant to
this action, during normal business hours at the EPA Region 9, 75
Hawthorne Street, San Francisco, California, 94105.
You may also see copies of the submitted Title V program at the
following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814
The San Joaquin Valley Pollution Control District, 1990 E. Gettysburg
Avenue, Fresno, CA 93726-0244
FOR FURTHER INFORMATION CONTACT: Ed Pike, EPA Region IX, Permits Office
(AIR-3), U.S. Environmental Protection Agency, Region IX, (415) 744-
1211 or pike.ed@epa.gov.
SUPPLEMENTARY INFORMATION: This section provides additional information
on today's rulemaking:
What is the operating permit program?
What rules were submitted for full approval?
How do the program changes qualify for full approval?
Are there other issues with the program?
What Is the Operating Permit Program?
The CAA Amendments of 1990 require 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 enforcement 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 (but are not
limited to) those that have the potential to emit: (1) 50 tons per year
or more of volatile organic compounds or nitrogen oxides
(NOX) in a serious non-attainment; (2) 70 tons per year of
particulate matter (PM10) in a PM10 non-
attainment area; (3) 10 tons per year of any single Hazardous Air
Pollutant (as defined under section 112 of the CAA); or (4) 25 tons per
year or more of a combination of Hazardous Air Pollutants (HAPs).
What Rules Were Submitted for Full Approval?
Where an 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
contingent on the State or local permitting agency revising its program
to correct the deficiencies. Because the San Joaquin operating permit
program substantially, but not fully, met the requirements of part 70,
EPA granted interim approval to each program in a rulemaking published
on April 24, 1996 [61 FR 18083]. The interim approval notice described
the conditions that had to be met in order for the San Joaquin program
to receive full approval.
In response, San Joaquin adopted revisions to three permitting
regulations on June 21, 2001. The first is District Rule 2520,
Federally Mandated Operating Permits, which is the District's part 70
permitting rule. The District also made revisions to the elements of
District Rule 2201, New and Modified Source Review, that contain part
70 requirements allowing a source to obtain a modification under Rule
2201 that also satisfies part 70 requirements. District Rule 2020,
Exemptions, was also revised. The California Air Resources Board, on
behalf of the District submitted these revised regulations and other
program revisions on July 3, 2001. This Federal Register notice
describes the changes that have been made to the San Joaquin operating
permit program since interim approval was granted and how the revised
program meets the conditions for full approval.
[[Page 53152]]
How Do the Program Changes Qualify for Full Approval?
EPA's April 24, 1996 rulemaking required that San Joaquin make a
number of changes to the program to qualify for full approval. EPA is
proposing to fully approve the revised program submitted to EPA on July
3, 2001. This revised program contains the following changes to address
the interim approval requirements (for more information, please see the
Technical Support Document):
Issue #1
In order for San Joaquin's program to receive full approval (and to
avoid a disapproval upon the expiration of this interim approval), the
California Legislature must revise the Health and Safety Code to
eliminate the exemption of agricultural production sources from the
requirement to obtain a permit. (See major source definition in 40 CFR
70.2 and applicability under 40 CFR 70.3)
Rule or Program Change
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.
Issue #2
Revise the applicability language in Rule 2520 section 2.2 and the
definitions of Major Air Toxics Source (Rule 2520 section 3.18) and
Major Source (Rule 2520 section 3.19) to be consistent with the Act and
Part 70 to cover sources that emit at major source thresholds. (See 40
CFR 70.2, definition of ``Major Source'')
Rule or Program Change: The District has amended the applicability
language in Rule 2520 section 2.2, Rule 2520 section 3.18, and Rule
2520 section 3.19 to include sources with actual emissions at or above
the major source thresholds, rather than just sources with the
potential to emit at the major source thresholds.
Issue #3
Limit the exemption for non-major sources in Rule 2520 section 4.1
so that it does not exempt non-major sources that EPA determines, upon
promulgation of a section 111 or 112 standard, must obtain Title V
permits. (See 40 CFR 70.3)
Rule or Program Change: The District has amended the language in
Rule 2520 section 4.1 to limit the exemption for non-major sources in
Rule 2520 section 4.1 so that it does not exempt non-major sources that
EPA determines, upon promulgation of a section 111 or 112 standard,
must obtain Title V permits. Any source that falls into one or more of
the source categories listed under section 4.1 cannot be exempted from
the requirements to obtain a title V permit, even if it is not a major
source.
Issue #4
Revise Rule 2520 section 7.1.3.2 to eliminate the requirement that
fugitive emission estimates need only be submitted in the application
if the source is in a source category identified in the major source
definition in 40 CFR 70.2. (See 40 CFR 70.5(c))
Rule or Program Change: The District amended the language in Rule
2520 Section 7.1.3.2 to eliminate the requirement that fugitive
emissions estimates need only be submitted in the application if the
source is in a source category identified in the major source
definition in 40 CFR 70.2. The District
[[Page 53153]]
also added fugitive emissions to the list of emissions-related
information that must be submitted with permit applications in section
7.1.3.1.
Issue #5
Revise Rule 2520 to provide that unless the District requests
additional information or otherwise notifies the applicant of
incompleteness within 60 days of receipt of an application, the
application shall be deemed complete. (See 40 CFR 70.5(a)(2) and
70.7(a)(4))
Rule or Program Change: The District revised section 11.6.1 of
District Rule 2520 to assure that ``Unless the APCO requests additional
information or otherwise notifies the applicant of incompleteness
within 60 days of receipt of an application, the application shall be
deemed complete.''
Issue #6
Revise Rule 2520 sections 11.1.4.2 and 11.3.1.1 and Rule 2201
5.3.1.1.1 to include notice ``by any other means if necessary to assure
adequate notice to the affected public.'' (See 40 CFR 70.7(h)(1))
Rule or Program Change: The District revised the language in
sections 11.1.4.2 and 11.3.1.1 of Rule 2520 and section 5.3.1.1.1 of
Rule 2201 (which has been administratively renumbered as section
5.9.1.1 of Rule 2201) to include notice by any other means if necessary
to assure adequate notice to the affected public.
Issue #7
Revise Rule 2520's permit issuance procedures to provide for
notifying EPA and affected states in writing of any refusal to accept
all recommendations for the proposed permit submitted by an affected
state during the public/affected state review period. (See 40 CFR
70.8(b)(2))
Rule or Program Change: Language has been added to section 11.3.1.3
of Rule 2520 requiring the District to notify EPA and affected states
in writing of any refusal to accept all recommendations for the
proposed permit that an affected state submitted during the public/
affected state review period.
Issue #8
Either delete section 11.7.5 in Rule 2520 and section 5.3.1.8.5 in
Rule 2201, which purport to limit the grounds upon which EPA may object
to a permit to compliance with applicable requirements, or revise them
to be fully consistent with 40 CFR 70.8 (c).
Rule or Program Change: The District resolved this issue by
revising section 11.7.5 of Rule 2520 and section 5.3.1.8.5 (which has
been administratively renumbered as section 5.9.1.9.4) of Rule 2201 to
be consistent with 40 CFR part 70 as follows: ``EPA objection shall be
limited to compliance with applicable requirements and the requirements
of 40 CFR part 70.''
Issue #9
Revise Rule 2520 section 2.4 to clarify that the phrase in section
2.4 that ``only the affected emissions units within the stationary
source shall be subject to part 70 permitting requirements'' applies
only to stationary sources that are also area sources. (See 40 CFR
70.3(c))
Rule or Program Change: Section 2.4 was revised to read ``For
stationary sources, which are subject to Rule 2520 solely as a result
of Section 2.4, only the emissions units within the stationary source
that are subject to the section 111 or 112 standard or requirement
shall be subject to the Part 70 permitting requirements.''
Issue #10
Revise Rule 2520 section 8.1 to provide that each model general
permit and model general permit template will be subject to public,
affected state, and EPA review consistent with initial issuance at
least once every 5 years. (See 40 CFR 70.4(b)(3)(iii) and 70.7(c)(1))
Rule or Program Change: Section 8.1 of Rule 2520 was revised to
provide that each model general permit and model general permit
template will be subject to public, affected state, and EPA review
consistent with initial issuance at least once every 5 years.
Issue #11:
Revise Rule 2520 Section 8.1 to provide that any permit for a solid
waste incinerator unit that has a permit term of more than 5 years
shall be subject to review, including public notice and comment, at
least once every 5 years. (See 40 CFR 70.4(b)(3)(iii) and (iv) and
70.7(c))
Rule or Program Change: Section 8.1 of Rule 2520 was revised to
provide that any permit for a solid waste incinerator unit that has a
permit term of more than 5 years shall be subject to review, including
public notice and comment, at least once every 5 years.
Issue #12
Revise Rule 2520 section 13.2.3 to state that the permit shield
will only apply to requirements addressed in the permit. Section 504(f)
of the Act and 40 CFR Sec. 70.6(f) are both clear that the permit
shield only extends to requirements that are addressed in the permit.
EPA will not consider a source to be shielded for failure to comply
with an applicable requirement if that applicable requirement is
addressed only in the written reviews (such as a permit evaluation)
supporting permit issuance and not in the permit.
Rule or Program Change: Rule 2520 section 13.2.3 was revised to
read, ``The permit shield applies only to requirements that are either
identified and included by the District in the permit, or are
requirements that the District, in acting on the application,
determines in writing are not applicable to the source. In cases where
the District determines that a requirement is not applicable to the
source and provides a permit shield, the permit shall include the
determination or a concise summary of the determination.''
Issue #13
Revise Rule 2520 section 9.12 to require that the permit contain
terms and conditions for the trading of emissions increases and
decreases to the extent that any applicable requirement provides for
such trading without case by case approval. The District may limit
transfers of emission reduction credits in accordance with District
Rules 2201 and 2301. (See 40 CFR 70.6(a)(10))
Rule or Program Change: The language in section 9.11 (the
corresponding section after a numbering correction) of Rule 2520 was
revised to require that the permit contain terms and conditions for the
trading of emissions increases and decreases to the extent that any
applicable requirement provides for such trading without case by case
approval.
Issue #14
Revise Rule 2520 section 9.0 (permit content) to include the 40 CFR
Sec. 70.6(c)(3) requirement for schedules of compliance for applicable
requirements for which the source is in compliance or that will become
effective during the permit term.
Rule or Program Change: A new section (Section 9.14) was added to
Rule 2520. This section includes the 40 CFR Sec. 70.6(c)(3) requirement
for schedules of compliance for applicable requirements for which the
source is in compliance or that will become effective during the permit
term.
Issue #15
Revise Rule 2520 to treat changes made under the Prevention of
Significant Deterioration (PSD) provisions of the Act in the same
manner as ``Title I modifications'' as that term is defined in Rule
2520 and Rule 2201. (See 40 CFR 70.7 and 70.4(b)(12))
Rule or Program Change: Sections 3.20.4.1, 3.20.5, 6.4.1.3, and
6.4.4.5 of
[[Page 53154]]
Rule 2520 were revised to treat changes made under the Prevention of
Significant Deterioration (PSD) provisions of the Act in the same
manner as ``Title I modifications'' as that term is defined in Rule
2520 and Rule 2201.
Issue #16
Revise Rule 2520 to state that notwithstanding permit shield
provisions, if a source that is operating under a general permit or
general permit template is later determined not to qualify for the
terms and conditions of that general permit or template, then the
source is subject to enforcement action for operation without a part 70
permit. (See 40 CFR 70.6(d))
Rule or Program Change: Section 13.2.4 was added to Rule 2520 to
state that ``Notwithstanding these permit shield provisions, if a
source that is operating under a general permit or general permit
template is later determined not to qualify for the terms and
conditions of that general permit or template, then the source is
subject to enforcement action for operation without a part 70 permit.''
Summary: As noted earlier, EPA is proposing to fully approve San
Joaquin's revised operating permit program based on the revisions
submitted to EPA on July 3, 2001.
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 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 person 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.
Request for Public Comment
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the District's 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.
[[Page 53155]]
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. 01-26409 Filed 10-18-01; 8:45 am]
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