[Federal Register Volume 66, Number 203 (Friday, October 19, 2001)]
[Proposed Rules]
[Pages 53148-53151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26408]



[[Page 53148]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[CA 049-OPP; FRL-7087-5]


Clean Air Act Proposed Full Approval of Operating Permit Program; 
San Diego County Air Pollution Control District, CA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the operating permit program of 
the San Diego County Air Pollution Control District (``San Diego'' or 
``District''). The San Diego 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 San Diego operating permit program 
on December 7, 1995 but listed conditions that San Diego's program 
would be required to meet for full approval. San Diego has revised its 
program to satisfy the conditions of the interim approval. Thus, this 
action proposes full approval of the San Diego operating permit program 
as a result of those revisions.

DATES: Comments on the program 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 the San Diego'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 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 Diego Air Pollution Control District, 9150 Chesapeake Drive, 
San Diego, California 92123-1096.

    An electronic copy of SDCAPCD's title V rule, Regulation XIV may be 
available via the Internet at http://www.arb.ca.gov/drdb/sd/cur.htm. 
However, the version of District Regulation XIV 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 the 
rule 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.

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. Are There Other Issues with the Program?
IV. What Are the Program Changes That EPA Is Proposing to Approve?
V. What Is Involved in this Proposed Action?

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. 
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 ``serious,'' major 
sources include those with the potential of emitting 50 tons per year 
or more of volatile organic compounds or nitrogen oxides.

II. 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 District revising its program to correct any 
deficiencies. Because the San Diego 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 
December 7, 1995 (60 FR 62753). The interim approval notice described 
the conditions that had to be met in order for the San Diego program to 
receive full approval. Since that time, the California Air Resources 
Board, on behalf of the San Diego has submitted one revision to the San 
Diego's interimly approved operating permit program; this revision is 
dated June 4, 2001. This Federal Register notice describes the changes 
that have been made to the San Diego operating permit program since 
interim approval was granted.

III. 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 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

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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.

IV. What Are the Program Changes That EPA Is Proposing To Approve?

    As explained in the December 7, 1995 [60 FR 62753] rulemaking, full 
approval of the San Diego operating permit program required 
satisfaction of the following conditions:
    Issue (1): 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 or Program Change: San Diego amended its program to require 
agricultural operations to obtain Title V operating permits when state 
law is revised.
    Issue (2): San Diego was required to revise Rule 1401(c)(43) 
definition of ``Significant Permit Modification,'' to be consistent 
with Part 70 which requires that any significant change in monitoring 
permit terms or conditions be processed as a significant permit 
modification.
    Rule Change: San Diego met this condition by amending the 
definition of ``significant permit modification'' at Regulation XIV, 
Rule 1401(c)(44) to include a ``significant change in existing 
monitoring permit terms or conditions or relaxation to monitoring, 
recordkeeping, or reporting requirements; or * * *'' See 40 CFR 
70.7(e)(4).
    Issue (3): San Diego was required to define affected state or, 
because of its cooperative agreement with Native American Tribes, EPA 
would accept a commitment from San Diego to: (1) Initiate rule 
revisions upon notification from EPA that an affected tribe has applied 
for state status; and (2) provide affected state notice to tribes upon 
a tribe's filing for state status, that is, prior to the District's 
adoption of affected state notice rules. See 40 CFR 70.2 and 
70.8(b)(1).
    Rule Change: San Diego met this requirement by revising its rule to 
define affected state at Rule 1401(c)(5) to mean: ``any state that: (i) 
Is contiguous with California and whose air quality may be affected by 
a permit action, or (ii) is within 50 miles of the source for which a 
permit action is being proposed. For purposes of this rule affected 
state includes any federally recognized Eligible Indian Tribe.'' In 
addition, Rule 1415 was amended to require affected states be notified 
by the APCO at least 45 days prior to issuance of a five year initial 
permit to operate, a revised permit resulting from an application for 
significant modification or renewal of such a permit.
    Issue (4): San Diego was required to revise Rule 1410(h)(7), 
paragraph 2 to require permit reopening procedures for any inactive 
status permit that is modified to reflect new applicable requirements 
upon being converted to

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active status if there are 3 years or more remaining on the term of its 
5-year permit. See 40 CFR 70.7(f)(1)(i).
    Rule Change: San Diego met this condition by deleting, in its 
entirety, subsection (7) of rule 1410. The rule, therefore, no longer 
allows inactive status permits to be reactivated.
    Issue (5): San Diego was required to remove any activities from the 
District's list of insignificant activities that are subject to a unit-
specific applicable requirement and adjust/add size cut-offs to ensure 
that the listed activities are truly insignificant. See 40 CFR 
70.4(b)(2) and 70.5(c).
    Rule Change: San Diego met this condition by revising its list of 
insignificant activities to remove activities (or impose size limits on 
units) that were subject to any unit-specific applicable requirements 
(e.g., refrigeration units are now limited to a charge of less than 50 
pounds of a Class I or II ozone depleting compound). San Diego also 
included a justification as to why certain emission units are included 
in the insignificant activities list. San Diego's justification relied 
on district emission factors and expected operations from the subject 
emission units and/or included the analysis that was conducted in 1999 
by a workgroup, including staff from the ARB, EPA Region 9 and CAPCOA, 
who developed a model list of insignificant activities. San Diego also 
removed language in the introduction to Appendix A to no longer allow 
insignificant activities to be exempt from the permit requirements of 
Regulation XIV.
    Issue (6): San Diego was required to remove the reference to Rules 
1410 (j) and (k) in Rule 1410(i).\1\ This reference to minor and 
significant permit modifications in the provisions for administrative 
permit amendments could have be read to be inconsistent with the 
definition of ``significant permit modification'' (Rule 1401(c)(43)), 
which correctly defaulted unspecified changes to the significant permit 
modification process. In addition, EPA required the District to remove 
the word ``include'' from the phrase, ``These shall include the 
following'' in the administrative permit amendment section (Rule 
1410(i)). See 40 CFR 70.7(d).
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    \1\ A typographical error exists in our December 7, 1995 FR in 
which we referred to Rule 1410 as Rule 1401.
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    Rule Change: San Diego met this condition by revising Rule 1410 (i) 
to remove the reference to subsections (j) and (k) and to remove the 
phrase that included the word, ``include.''
    Issue (7): The District must revise either the definition of 
``federally mandated new source review'' or the definition of 
``federally enforceable requirement'' to clearly include minor new 
source review as an applicable requirement under title V.
    Rule Change: San Diego met this requirement by revising Rule 
1401(c)(20) to now define Federally Mandated New Source Review (NSR) as 
``* * * new source review that would be required by the approved State 
Implementation Plan (SIP).''

V. What Is Involved in This Proposed Action?

    The EPA proposes full approval of the operating permits program 
submitted by San Diego County based on the revisions submitted on June 
4, 2001 which satisfactorily address the program deficiencies 
identified in EPA's December 7,1995 Interim Approval Rulemaking. See 60 
FR 62794. In addition, the District has revised and submitted as part 
of its revised program, changes to two forms:

 Form 1401-J1--Monitoring Report and Compliance Certification; 
and
 Form 1401-J2--Deviation Report.

EPA is not acting on these forms as part of this action because they 
were not required to revise these forms for full approval and the forms 
may not be consistent with the reporting requirements at 70.6(c)(5) 
[compliance certifications] and 70.6 (a)(3)(iii) [semi-annual 
monitoring reports and deviation reports].

Request for Public Comment

    EPA requests comments on the program revisions discussed in this 
proposed action. Copies of the San Diego 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

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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. 01-26408 Filed 10-18-01; 8:45 am]
BILLING CODE 6560-50-P