[Federal Register Volume 66, Number 203 (Friday, October 19, 2001)]
[Proposed Rules]
[Pages 53174-53178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26421]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[CA 043-OPP; FRL-7086-9]


Clean Air Act Proposed Full Approval of Operating Permit Program; 
Ventura County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to fully approve the operating permit program of 
the Ventura County Air Pollution Control District (District). The 
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.
    On November 1, 1995, EPA granted interim approval to the District's 
operating permit program. The District has revised its operating permit 
program (Rule 33) to satisfy the conditions of the interim approval and 
this action proposes approval of these revisions made since the interim 
approval was granted.

DATES: Written comments must be received by November 19, 2001.

ADDRESSES: Written comments on this action should be addressed to 
Gerardo Rios, Permits Office, Air Division (AIR-3), EPA Region IX, 75 
Hawthorne Street, San Francisco, California, 94105. You can inspect 
copies of the District's submittals, and other supporting documentation 
relevant to this action, during normal business hours at Air Division, 
EPA Region IX, 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.
     Ventura County Air Pollution Control District: 669 County 
Square Drive, Ventura, CA 93003.
    You may review the District rules by retrieving them from the 
California Air Resources Board (ARB) website. The location of the 
District rules is http://arbis.arb.ca.gov/drdb/ven/cur.htm.

FOR FURTHER INFORMATION CONTACT: Gerardo Rios, EPA Region IX, at (415) 
744-1259 ([email protected]) or Nahid Zoueshtiagh at (415) 744-1261.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents:

I. District's Part 70 Permits
    A. What Is the Operating Permit Program?
    B. What Is Being Addressed in This Document?
    C. Are There Other Issues With the Program?
    D. What Are the Program Changes That EPA Is Proposing To 
Approve?
    E. What Is Involved in This Proposed Action?
II. Request for Public Comment

I. District's Part 70 Permits

A. What Is the Operating Permit Program?

    Title V of the Clean Air Act 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

[[Page 53175]]

programs, the permitting authorities require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the Clean Air Act (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 or more of any single hazardous air pollutant 
(HAP) listed under the CAA; or those that emit 25 tons per year or more 
of a combination of HAPs. In areas that are not meeting the National 
Ambient Air Quality Standards (NAAQS) for ozone, carbon monoxide, or 
particulate matter, major sources are defined by the gravity of the 
non-attainment classification.
    Ventura County is classified as a severe non-attainment area for 
ozone. Therefore, for reactive organic compounds or nitrogen oxides, 
the threshold for obtaining an operating permit is 25 tons per year or 
more of either reactive organic compounds or nitrogen oxides. Ventura 
County meets the NAAQS for all other pollutants.

B. 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 any 
deficiencies. Because the District's operating permit program 
substantially, but not fully, met the requirements of part 70, EPA 
granted interim approval to the District's program on November 1, 1995.
    This Federal Register document describes the changes that the 
District has made to its Rule 33 (District's operating permit program) 
since interim approval was granted.

C. 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 document 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 letter from one person who commented on what he 
believes to be deficiencies with respect to title V programs in 
California. We are not taking any actions 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.

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

    As discussed above, EPA granted final interim approval on November 
1, 1995 (60 FR 55460) to the District's title V program. As stipulated 
in that rulemaking, full approval of the District operating permit 
program was made contingent upon satisfaction of certain conditions. In 
response to EPA's interim approval action, the District revised its 
Rule 33 (operating permit program) to remove the deficiencies 
identified by EPA. The District held a workshop (November 30, 2000), 
made the draft revised rule available to public review and comments 
(March/April 2001), and adopted the revisions on April 10, 2001. The 
revised program was submitted to EPA on May 21, 2001. We have included 
below a discussion of each of the interim approval deficiency issues 
(as enumerated and explained in EPA's proposed action in 1994 (see 59 
FR 60104)), our conditions for correction, and a summary of how the 
District has corrected each of these deficiency issues. The Technical 
Support Document (TSD) for this action includes the District's 
submittal and details of the revisions made.
    Issue a. Insignificant activities--Rules 33.2 and 23 provide the 
framework for Ventura's insignificant activities provisions. For its 
program to be fully approvable, Ventura needed to provide a 
demonstration that activities classified as ``insignificant'' are truly 
insignificant and are not likely to be subject to an applicable 
requirement. Alternatively, the District could restrict insignificant 
activities to those that are not likely to be subject to an applicable 
requirement and emit less than District-established emission levels. 
The District needed to 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. (Reference: 40 CFR 70.4(b)(2) and 70.5(c))
    District's response to issue a. The District revised its Rule 33 to 
add a new term under its Rule 33.1.10. The new term defines and 
specifies ``Insignificant Activity'' to address EPA's deficiency issue. 
The revision satisfies the part 70 requirements.
    Issue b. Revision process for significant changes to monitoring 
terms and conditions--the definitions of ``minor permit modification'' 
and ``significant part 70 permit modification'' in Rule 33.1 needed to 
be revised to ensure that significant changes to existing monitoring 
permit terms or conditions are processed as significant permit 
modifications. (Reference: 40 CFR 70.7(e)(4)).
    District's response to Issue b. The District revised its Rule 33 to 
address EPA's requirement. The newly adopted Rule 33.1.11.d states that 
the modification does not involve any significant change to any 
existing federally-enforceable monitoring term or condition or involve 
any relaxation of reporting or recordkeeping requirements in the part 
70 permit.
    Issue c. Operation of modifications prior to permit revision--
except in the case when a federally enforceable permit condition would 
prohibit it, Ventura's Rule 33.9 A.1. allowed sources to make 
significant

[[Page 53176]]

modifications prior to receiving a part 70 permit revision. In order to 
be consistent with part 70, Ventura was required to revise its rule so 
that the only changes that may be operated prior to receiving a part 70 
permit revision are those modifications subject to section 112(g) and 
title I, parts C and D of the Act, and those that are not prohibited by 
the existing part 70 permit. Under part 70, if a proposed change does 
not meet these criteria, the source may not make the change until the 
permitting authority has revised the source's part 70 permit. 
(Reference 40 CFR 70.5(a)(1)(ii)).
    District's response to Issue c. The District replaced the last 
paragraph of its Rule 33.9.A.1 with the following: ``The protection 
granted by this subsection for a significant part 70 permit 
modification shall not be applicable unless the modification was 
subject to section 112(g), or part C or D of title I of the federal 
Clean Air Act and the existing part 70 permit for the stationary source 
does not prohibit the modification. If either of these conditions is 
not met, the modified portion of the stationary source shall not be 
operated until the modified part 70 permit is issued.''
    Issue d. Public notice--VCAPCD needed to revise Rule 33.7 B. to 
include notice ``by other means if necessary to assure adequate notice 
to the affected public.'' (Reference: 40 CFR 70.7(h)(1)).
    District's response to Issue d. The District added a new section to 
its Rule 33.7. This new section (33.7.B.2.g) requires the District to 
provide notice by other means if necessary to assure adequate notice to 
the affected public.
    Issue e. Permit Content--Ventura's permit content requirements are 
found in Rules 33.3 and 33.9. At the time of interim approval, these 
regulatory provisions adequately addressed nearly all of the part 70 
requirements. Certain elements (e.g., Secs. 70.6(a)(3)(ii)(B) and 
70.6(a)(6)(i)), are more fully detailed in the General Part 70 Permit 
conditions, which were submitted in Appendix B.2.b. of Ventura's part 
70 program submittal. Ventura needed to establish a binding requirement 
that the General Part 70 Permit Conditions will be included in all part 
70 permits. Ventura could accomplish this by modifying its regulation 
to reference the general conditions that were submitted and approved by 
EPA, or by more fully addressing the conditions within the regulation. 
(Reference: 40 CFR 70.6(a)).
    District's response to Issue e. The District significantly revised 
Sections A and B of its Rule 33.3 to incorporate EPA's requirements. 
For example, Rule 33.3.A.3 now requires conditions that establish all 
applicable emissions monitoring and analysis procedures, emissions test 
methods or continuous monitoring equipment required under all 
applicable requirements, and related recordkeeping and reporting 
requirements. It also requires, as necessary, conditions concerning the 
use, maintenance, and, where appropriate, installation of monitoring 
equipment or methods. Further, all applicable recordkeeping and 
monitoring requirements must include details such as date, place and 
time of sampling or measurements.
    Issue f. Recordkeeping requirements--VCAPCD needed to revise the 
permit content requirements of Rule 33.3 to provide adequate 
specificity with regard to the applicable recordkeeping requirements. 
(Reference: 40 CFR 70.6(a)(3)(C)(ii)).
    District's response to Issue f. The District incorporated all of 
the above requirements in Rule 33.3.A.3. For example, the rule now 
specifies that permits incorporate all applicable data such as:
     Date, place as defined in the permit, and time of sampling 
or measurements;
     Date(s) analyses were performed;
     Company or entity that performed the analyses;
     Analytical techniques or methods used;
     Results of such analyses; and
     Operating conditions as existing at the time of sampling 
or measurements.
    Support information includes all calibration and maintenance 
records and all original strip chart recordings for continuous 
monitoring instrumentation, and copies of all reports required by the 
part 70 permit.
    Issue g. Emissions trading under applicable requirements--Ventura 
County needed to add emissions trading provisions consistent with 
Sec. 70.6(a)(10), which requires that trading must be allowed where an 
applicable requirement provides for trading increases and decreases 
without a case-by-case approval. (Reference 40 CFR 70.6(a)(10)).
    District's response to Issue g. The District included EPA's 
requirement in its Rule 33.3.A.6, which states that: ``Applicable 
conditions for allowing trading under a voluntary emission cap accepted 
by the permittee, and for allowing trading under applicable 
requirements to the extent that such requirements provide for trading 
emissions without a case by case approval of each trade. Such 
conditions shall include all terms required under section A of this 
rule to determine compliance and shall meet all applicable 
requirements.''
    Issue h. Compliance schedule--At the time of interim approval, Rule 
33.3 B.2, which requires that a schedule of compliance be included in 
the permit, did not create an explicit link with Rule 33.9 B.4., which 
details the contents of a compliance schedule. Thus, VCAPCD needed to 
revise Rule 33.3's permit content requirements to ensure that all 
elements of the compliance schedule under Sec. 70.5(c) are incorporated 
into the permit. (Reference: 40 CFR 70.6(c)(3), 70.6(c)(4)).
    District's response to Issue h. The District revised its Rule 33.3 
to include EPA's requirements. Rule 33.3.A.8 now requires that if the 
stationary source is not in compliance with any federally-enforceable 
requirement, it must have a schedule of compliance that is approved by 
the District Hearing Board, meets all requirements of Rule 33.2.A.7, 
and includes a condition that requires submittal of a progress report 
on the schedule of compliance at least semiannually.
    Issue i. EPA notification of operational flexibility changes--Rule 
33.5.D needed to be revised to incorporate EPA notification of changes 
made under the operational flexibility provisions, either by providing 
for it within the regulation, or by making the general permit 
conditions, which do specify EPA notification, required elements of 
each permit. (Reference 40 CFR 70.4(b)(14)(ii)).
    District's response to Issue i. The District revised the first 
paragraph of its Rule 33.4.D to reflect EPA's requirements. The revised 
paragraph is as follows: ``The owner or operator of any stationary 
source required to obtain a part 70 permit will be allowed to 
contravene an express part 70 permit condition with 30 days written 
notification to both EPA and the District unless the District objects 
in writing to the change within the 30 day notice period.''
    Issue j. State-wide agricultural permitting exemption--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

[[Page 53177]]

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.

E. What Is Involved in This Proposed Action?

    Today, we are proposing to fully approve the District's revised 
Rule 33 (operating permit program). We have determined that the 
revisions made by the District remove the deficiencies identified by us 
in 1995. We will make our final decision on our proposal after 
considering public comments submitted during the 30-day period from 
this publication date.

II. Request for Public Comment

    EPA requests comments on the program revisions discussed in this 
proposed action. Copies of the District 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 significant regulatory action under Executive Order 12866. 
This action will not impose any collection of information subject to 
the

[[Page 53178]]

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. 01-26421 Filed 10-18-01; 8:45 am]
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