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Clean Air Act Proposed Full Approval of Operating Permit Program; Mojave Desert Air Quality Management District, CA
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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 53163-53166]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc01-33]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[CA 046-OPP; FRL-7087-3]
Clean Air Act Proposed Full Approval of Operating Permit Program;
Mojave Desert Air Quality Management District, CA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to fully approve the operating permit program
of the Mojave Desert Air Quality Management District (``Mojave'' or
``District''). The Mojave 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 Mojave operating permit program on
February 5, 1996, but listed conditions that Mojave's program would be
required to meet for full approval. Mojave has revised its program to
satisfy the conditions of the interim approval. Thus, this action
proposes full approval of the Mojave operating permit program as a
result of those revisions.
DATES: Comments on the proposed full approval 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, Acting Chief, Permits Office, Air Division (AIR-3), EPA
Region IX, 75 Hawthorne Street, San Francisco, California, 94105. You
can inspect copies of Mojave's submittals, and other supporting
documentation relevant to
[[Page 53164]]
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 submitted operating permit program
at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
The Mojave Desert Air Quality Management District, 14306 Park Avenue,
Victorville, CA 92392.
A electronic copy of Mojave's operating permit program rules may be
available via the Internet at http://www.arb.ca.gov/drdb/moj/cur.htm. 
However, the online version of these rules may be different from the
version submitted to EPA for approval. Readers are cautioned to verify
that the amended dates of the rules listed are the same as those for
the rules submitted to EPA for approval (June 4, 2001). The official
submittal is available only at the three addresses listed above.
FOR FURTHER INFORMATION CONTACT: Roger Kohn, EPA Region IX, Permits
Office (AIR-3), U.S. Environmental Protection Agency, Region IX, (415)
744-1238 or kohn.roger@epa.gov.
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:
What is the operating permit program?
What is being addressed in this document?
Are there other issues with the program?
What are the program changes that EPA is proposing to approve?
What is involved in this proposed action?
What Is the Operating Permit Program?
Title V of the CAA Amendments of 1990 required all state and local
permitting authorities to develop operating permit programs that met
certain federal criteria. In implementing the operating permit
programs, the permitting authorities require certain sources of air
pollution to obtain permits that contain all applicable requirements
under the CAA. The focus of the operating permit program is to improve
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 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. For
example, in ozone nonattainment areas classified as ``severe,'' major
sources include those with the potential of emitting 25 tons per year
or more of volatile organic compounds or nitrogen oxides. Part of
Mojave is located in an area designated as severe nonattainment for
ozone. Hence, the potential to emit threshold for major sources in that
area is 25 tons per year or more of volatile organic compounds or
nitrogen oxides.
What Is Being Addressed in This Document?
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 revising its program to correct the
deficiencies. Because the Mojave operating permit program
substantially, but not fully, met the requirements of part 70, EPA
granted interim approval to its program in a rulemaking published on
February 5, 1996 (61 FR 4217). The interim approval rulemaking
incorporated by reference the conditions described in the July 3, 1995
(60 FR 34488) proposed rulemaking for interim approval that had to be
met in order for the Mojave program to receive full approval. On June
4, 2001, the California Air Resources Board, on behalf of Mojave,
submitted the District's revised operating permit program that contains
the needed changes for full approval identified in the interim approval
rulemaking. This document describes these changes.
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 document.
EPA received a comment letter from one person on what he believes
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 document
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.
What Are the Program Changes That EPA Is Proposing To Approve?
As stipulated in the February 5, 1996 (61 FR 4217) rulemaking, full
approval of the Mojave operating permit program was made contingent
upon satisfaction of the following conditions:
(1) Mojave must revise Rule 1203(G)(3)(g), which prohibits the
permit shield from applying to administrative permit amendments and
significant permit modifications, to include a reference to minor
permit modifications as well. In accordance with 40 CFR 70.7(e)(2)(vi),
the permit shield cannot apply to minor permit modifications, and the
rule must state this clearly.
The District revised Rule 1203(G)(3)(g) to prohibit the permit
shield from applying to minor permit modifications as well.
(2) Mojave must add a provision for sending the final permit to
EPA, in accordance with 40 CFR 70.8(a)(1). Mojave's Rule 1203(B)(1)(c)
only provides for sending the proposed permit to EPA.
[[Page 53165]]
The District added provision 1203(B)(1)(e) to specifically require
that the final permit be provided to EPA.
(3) Mojave must adopt Rule 1210 (Acid Rain Provisions of Federal
Operating Permits), in accordance with 40 CFR 70.4(b)(11)(iv).
The District adopted Rule 1210 on June 28, 1995.
(4) Mojave must amend Rule 1206(A)(1)(a)(i), which provides that no
reopening is required if the effective date of the additional
applicable requirement is later than the date on which the permit is
due to expire. However, if the original permit or any of its terms and
conditions are extended pursuant to 40 CFR 70.4(b)(10), the permit must
be reopened to include a new applicable requirement, and a statement
must be made to this effect in Mojave's rule, in accordance with 40
CFR. 70.7(f)(1)(i).
The District added a provision Rule 1206(A)(1)(a)(i) to require the
permit to be reopened if a new applicable requirement's effective date
falls during an extension of a Title V permit's expiration date
pursuant to Rule 1202(E)(2).
(5) Mojave must clarify in Rule 1203(G)(3)(b) that the permit
shield shall not limit liability for violations which occurred prior to
or at the time of the issuance of the federal operating permit. This is
so that violations which are continuing at the time of permit issuance
will not be shielded from potential enforcement action, in accordance
with 40 CFR 70.6(f)(3)(ii).
The District modified Rule 1203(G)(3)(b) to clarify that the permit
shield would not limit liability for violations which occurred prior to
or which were ongoing at the time of the issuance of the Federal
Operating Permit.
(6) In accordance with 40 CFR 70.5(c), Mojave must provide a
demonstration that activities that are exempt from part 70 permitting
are truly insignificant and are not likely to be subject to an
applicable requirement. Alternatively, Mojave may restrict the
exemptions (including any director's discretion provisions) to
activities that are not likely to be subject to an applicable
requirement and emit less than District-established emission levels.
The District should establish separate emission levels for HAPs and for
other regulated pollutants and demonstrate that these emission 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.
Instead of demonstrating that each activity on Mojave's
insignificant activity list is truly insignificant, the District
elected to establish significant source emissions level cut-offs below
which activities would presumably be insignificant. To implement this,
the District amended Rule 219(D)(1)(a) to lower the cut-off threshold
from five to two tons per year of any regulated air pollutant or 10% of
the applicable threshold for determination of a major facility,
whichever is less. For a Hazardous Air Pollutant (HAP), the cut-off
threshold is any de minimis level promulgated pursuant to CAA section
112(g), any significance level defined in 40 CFR 52.21(b)(23)(i), or
0.5 ton per year of any such HAP, whichever is less.
(7) Mojave must add the word ``and'' at the end of sections (b) and
(c) in Rule 219(B)(2), in order to clarify that the four gatekeepers
must all apply in order for equipment to be exempt from getting a
federal operating permit, in accordance with 40 CFR 70.5(c).
The District made the required change to Rule 219(B)(2).
(8) Mojave must add to Rule 1203(D)(1)(e)(i) a reference to the
requirement for the clear identification of all deviations with respect
to reporting, in accordance with 40 CFR 70.6(a)(3)(iii)(A).
The District modified Rule 1203(D)(1)(e) to require the
identification of all instances of deviations in monitoring reports.
(9) Mojave must add to Rule 1203(D)(1)(e)(ii) a reference to the
requirement to specify the probable cause and corrective actions or
preventive measures taken with regard to reporting a deviation, in
accordance with 40 CFR 70.6(a)(3)(iii)(B).
The District modified Rule 1203(D)(1)(e)(ii) to require prompt and
adequate reporting pursuant to requirements in Rule 430, which specify
that cause and corrective actions must be identified in reporting
deviations .
(10) In addition to the District-specific issues arising from
Mojave's program submittal and locally adopted regulations, California
state law currently exempts agricultural production sources from permit
requirements. In order for this program to receive full approval (and
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.
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.
[[Page 53166]]
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.
What Is Involved in This Proposed Action?
The EPA proposes full approval of the operating permits program
submitted by Mojave based on the revisions submitted on June 4, 2001,
which satisfactorily address the program deficiencies identified in
EPA's February 5, 1996 Interim Approval Rulemaking. See 61 FR 4217.
Request for Public Comment
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the MDAQMD 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. 01-26417 Filed 10-18-01; 8:45 am]
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