[Federal Register Volume 63, Number 29 (Thursday, February 12, 1998)]
[Proposed Rules]
[Pages 7109-7112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3581]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5966-5]
Clean Air Act Withdrawal of Proposed Approval of Amendment to
Title V Operating Permits Program and Proposed Approval of Amendments
to Title V Operating Permits Program; Pima County Department of
Environmental Quality, Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Withdrawal of proposed rule; proposed rule.
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SUMMARY: The EPA withdraws its proposed approval (62 FR 16124, April 4,
1997) of revisions to the Pima County Department of Environmental
Quality (``Pima'' or ``County'') title V operating permits program. In
this document EPA also proposes approval of the following revisions to
the operating permits program submitted by the Arizona Department of
Environmental Quality (``DEQ'') on behalf of Pima: a revision to the
fee provisions; and a revision that will defer the requirement for
minor sources subject to standards under sections 111 or 112 of the Act
to obtain title V permits, unless such sources are in a source category
required by EPA to obtain title V permits.
DATES: Comments on this proposed action must be received in writing by
March 16, 1998. Comments should be addressed to the contact indicated
below.
ADDRESSES: Copies of Pima's submittals and other supporting information
used in developing this proposed approval are available for inspection
(AZ-Pima-97-1-OPS and AZ-Pima-97-2-OPS) during normal business hours at
the following location: U.S. Environmental Protection Agency, Region 9;
75 Hawthorne Street; San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Ginger Vagenas (telephone 415-744-
1252), Mail Code AIR-3, U.S. Environmental Protection Agency, 75
Hawthorne Street; San Francisco, CA 94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
As required under title V of the Clean Air Act as amended (1990),
EPA has promulgated rules that define the minimum elements of an
approvable state operating permits program and the corresponding
standards and procedures by which the EPA will approve, oversee, and
withdraw approval of state operating permits programs (57 FR 32250;
July 21, 1992). These rules are codified at 40 CFR part 70. Title V
requires states to develop and submit to EPA, by November 15, 1993,
programs for issuing these operating permits to all major stationary
sources and to certain other sources. The EPA's program review occurs
pursuant to section 502 of the Act, which outlines criteria for
approval or disapproval.
On November 15, 1993, Pima's title V program was submitted. EPA
proposed interim approval of the program on July 13, 1995 (60 FR
36083). The fee provisions of the program were found to be fully
approvable. On November 14, 1995, in response to changes in state law,
Pima amended its fee provisions under Chapter 12, Article VI of Title
17 of the Pima County Air Quality Control Code. Those changes were
submitted to
[[Page 7110]]
EPA on January 14, 1997, after it promulgated final interim approval of
Pima's title V program (61 FR 55910, October 30, 1996). EPA
subsequently proposed to approve Pima's revised fee provisions (62 FR
16124, April 4, 1997). On July 17, 1997, EPA received a submittal from
ADEQ on behalf of Pima requesting that EPA approve a revision to the
applicability provisions of Pima's title V program.
II. Withdrawal of April 4, 1997 Proposed Action
Because EPA's evaluation of Pima's title V program fee provisions
takes into account the numbers and types of sources requiring permits,
EPA believes that, in light of the proposed changes to Pima's
applicability provisions, it must reconsider its proposed action. EPA
is therefore withdrawing its previous proposal to approve revisions to
Pima's fee provisions and will in this notice evaluate the
approvability of the fee changes in the context of the submitted
changes to program applicability.
III. Proposed Action
EPA is proposing to approve the submitted amendments to the
applicability and fee provisions of Pima's title V operating permits
program. A description of the submitted materials and an analysis of
the amendments are included below.
A. Applicability
1. Submitted Materials
The amendment to the applicability provisions of Pima's title V
program was submitted by the Arizona DEQ on July 17, 1997. The
submittal includes the deletion of the term ``Title V Source'' from
Pima County Air Quality Control Code (PCC) 17.04.340.133, proof of
adoption, evidence of necessary legal authority, evidence of public
participation including comments submitted on the rulemaking, and a
supplemental legal opinion from the County Attorney regarding the legal
adequacy of Pima's title V program, including implementation of section
111 and 112 of the Clean Air Act. In a letter dated November 7, 1997,
Pima clarified which sections of its title V program it wished to have
rescinded and which sections approved, and on December 2, 1997, Pima
sent a letter to EPA requesting approval under section 112(l) of the
Clean Air Act for the delegation of unchanged section 112 standards
applicable to sources that are not required to obtain title V permits.
2. Analysis of Submission
As approved by EPA, Pima's title V program requires nonmajor
sources subject to a standard under section 111 or section 112 to
obtain a title V permit. While not currently required by part 70, this
provision is fully approvable. On November 14, 1995, Pima revised its
regulations in order to allow nonmajor sources regulated under sections
111 and 112 to defer or be exempted from the title V permit requirement
to the extent allowed by the Administrator. This was accomplished by
deleting the term ``Title V Source,'' which was defined to include
nonmajor sources subject to section 111 and 112 standards, from PCC
17.04.340. With this change, only those sources required to obtain a
Class I (title V) permit, (i.e., major sources, solid waste
incinerators required to obtain a permit pursuant to section 129(e) of
the CAA, and sources required by the Administrator to obtain a permit),
are subject to the District's title V program. Non-major sources,
including those regulated under sections 111 and 112 of the CAA, are
deferred from the requirement to obtain a Class I/title V permit, to
the extent allowed by the Administrator. See PCC 17.12.140 and the
supplemental County Attorney's opinion dated June 24, 1997.
The approach taken in Pima's revised program is consistent with the
minimum criteria specified by part 70. EPA is therefore proposing to
approve the above described changes to Pima's title V program.
3. Amendments to the Applicability Provisions in Pima County's Title V
Program
If EPA finalizes its approval of the proposed amendments to Pima
County's applicability provisions, Rule 17.04.340.240 (definition of
``title V source'' adopted September 28, 1993) will be removed from the
County's title V program.
4. Program for Delegation of Section 112(l) Standards as Promulgated
As EPA stated in its proposed approval of Pima's original title V
program, requirements for approval under 40 CFR 70.4(b) encompass the
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Because Pima's original submittal included all sources subject
to section 112 standards in the universe of sources subject to its
title V permitting requirements, EPA's approval of Pima's program under
section 112(l) extended to section 112 standards as applicable to minor
as well as major sources.
The change in applicability of Pima's title V program affects EPA's
approval under section 112(l) of Pima's program for accepting
delegation of section 112 standards as promulgated. If the proposed
changes are approved, Pima will not be issuing part 70 permits to
nonmajor sources (unless such sources are designated by EPA being
required to obtain a part 70 permit). As a result, EPA's 112(l)
delegation, which relied upon part 70 permits as the vehicle for
implementing section 112 standards, would no longer cover minor
sources.
In a letter dated December 2, 1997, Pima specifically requested
approval under section 112(l) of a program for delegation of unchanged
section 112 standards applicable to sources that are not subject to
mandatory permitting requirements under title V. (See letter from David
Esposito, Director, PDEQ to David Howekamp, Director, Air and Toxics
[sic] Division, EPA Region IX.) Pima's request for approval under
section 112(l) for non-part 70 sources references the information
contained in its original title V program submittal as demonstration
that Pima meets the criteria under section 112(l) and 40 CFR 63.91 for
approval of a delegation program. EPA is therefore proposing to expand
its approval under section 112(l) to include Pima's program for
delegation of section 112 standards as they apply to those sources not
required to obtain a title V permit.
B. Fees
1. Submitted Materials
An amendment to the fee provisions of Pima's title V program was
submitted by the Arizona DEQ on January 14, 1997. The submittal
includes the revised fee regulations (Chapter 12, Article VI of Title
17 of the Pima County Air Quality Control Code as amended on November
14, 1995), a technical support document, and a legal opinion by the
County Attorney. Additional materials, including proof of adoption and
a commitment to provide periodic updates to EPA regarding the status of
the fee program, were submitted on February 26, 1997. In a letter dated
July 25, 1997, Pima submitted a detailed discussion of the expected
costs of and anticipated revenue from its title V program. The County's
analysis is based on the amended applicability provisions adopted on
November 14, 1995, which EPA is also proposing to approve today.
2. Permit Fee Demonstration
Section 502(b)(3) of the Act requires that each permitting
authority collect fees sufficient to cover all reasonable direct and
indirect costs required to develop and administer its title V operating
permits program. Each title V program submittal must contain either a
[[Page 7111]]
detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from title V sources meet or exceed $25 per
ton of emissions per year (adjusted from 1989 by the Consumer Price
Index (CPI)). Pima has submitted a detailed fee analysis that
demonstrates the fees it will collect under the amended rules are
adequate to cover program costs.
Title V emission fees. Pima's fee provisions require that the owner
or operator of each source required to obtain a title V permit shall
pay an annual emissions fee equal to $28.15 per year per ton of actual
emissions of all regulated air pollutants, or a specified minimum,
whichever is greater. See 17.12.510.C. and 17.12.510.C.5. The
regulations also require a yearly adjustment in the emissions fee rate
to reflect the increase, if any, in the Consumer Price Index. See
17.12.510.C.4.
Emission fees are used by Pima to cover the direct and indirect
costs of the title V related activities not covered by title V permit
fees. These activities are: (1) Part 70 program development and
implementation; (2) issuance of title V permits to existing sources;
(3) part 70 source compliance, including inspection services; and (4)
part 70 business assistance, which helps sources determine and meet
their obligations under part 70. Pima estimates the annual cost of
these activities in the first three years of program implementation to
range between $83,562 and $87,674. Based upon the fall 1996 dollar per
ton value ($35.78), invoicing records and emissions estimates, Pima
projects it will collect $98,275 in emissions fees annually. For more
detail, see July 25, 1997 letter from David Esposito, Director of Pima
Department of Environmental Quality, to Ginger Vagenas, US E.P.A.
Permit fees. Pima's fee provisions require that applicants for
permits to construct and operate that are subject to title V must pay
the total actual cost of reviewing and acting upon applications for
permits and permit revisions. See 17.12.510.G. and 17.12.510.I. These
fees are used to cover the cost of issuing permits to new sources and
for processing revisions to permits. Pima estimated the permitting
related average hourly billing costs for permitting of title V
facilities, including salary, fringe benefits, direct non-salary costs
and indirect costs including cost estimates of various types of permit
related activities. The estimated hourly cost is $53.60.
Because state law caps hourly fees at $53.00, Pima's hourly charges
are capped at $53.00. See 17.12.510.M. Although this cap is 60 cents
per hour less than the District's estimated hourly costs for permit
processing, EPA finds this provision to be fully approvable. Given the
inherent uncertainty in the cost estimates, EPA believes that the
difference is insignificant and unlikely to cause a shortfall in
revenues. Further, Pima is tracking its program costs and revenues and
has committed to provide EPA with periodic updates that will
demonstrate whether fee revenues are meeting the costs of the program.
If EPA finds that the County is not collecting fees sufficient to fund
the title V program, it will require a program revision.
In addition to imposing a cap on hourly fees, state law also limits
the maximum chargeable fee for issuing and revising permits. State law
and Pima regulations cap title V permit issuance fees at $30,000. See
17.12.510.G. Pima has estimated the cost of issuing a title V permit to
a new source at $21,484. Fees for processing permit revisions are
capped at $25,000 for significant revisions and $10,000 for minor
permit revisions. See 17.12.510.I. Because the workload associated with
these classes of permit revisions is likely to vary a great deal, Pima
did not attempt to estimate the cost of these actions. The County
believes that costs for permit revisions will be less than the maximum
allowable fees. (See letter to Dave Howekamp, EPA, from David Esposito,
Pima County, dated February 17, 1997.) EPA will periodically review the
County program to ensure adequate fees are collected.
3. Amendments to the Fee Provisions in Pima County's Title V Program
If EPA finalizes its approval of the proposed amendments to Pima
County's fee provisions, the following changes will be made to the
County's title V program. Rules 17.12.320, 17.12.500, 17.12.520 ,
17.12.580 (adopted September 28, 1993); Rule 17.12.610 (adopted
November 14, 1989); and Rules 17.12.640 and 17.12.650 (adopted December
10, 1991) will be removed. Rules 17.12.320, 17.12.500, and 17.12.510
(adopted November 14, 1995) will be added.
IV. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
approval. Copies of Pima's submittal and other information relied upon
for the proposed interim approval are contained in dockets (AZ-Pima-97-
1-OPS, and AZ-Pima-97-2-OPS) maintained at the EPA Regional Office. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this proposed interim approval. The principal 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. The EPA will
consider any comments received by March 16, 1998.
B. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a federal mandate that may result in estimated costs
of $100 million or more to either state, local, or tribal governments
in the aggregate, or to the private sector. This federal action
approves pre-existing requirements under state or local law, and
imposes no new federal requirements. Accordingly, no additional costs
to state, local, or tribal governments, or to the private sector,
result from this action.
D. Small Business Regulatory Enforcement Fairness Act
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing
[[Page 7112]]
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives and the Comptroller General of the General
Accounting Office prior to publication of the rule in today's Federal
Register. This rule is not a ``major rule'' as defined by section
804(2) of the APA as amended.
E. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Authority: 42 U.S.C. sections 7401-7671q.
Dated: February 2, 1998.
Felicia Marcus,
Regional Administrator.
[FR Doc. 98-3581 Filed 2-11-98; 8:45 am]
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