[Federal Register Volume 66, Number 203 (Friday, October 19, 2001)]
[Proposed Rules]
[Pages 53163-53166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26417]


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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 [email protected].

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.

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    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.

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    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]
BILLING CODE 6560-50-P