[Federal Register Volume 68, Number 195 (Wednesday, October 8, 2003)]
[Proposed Rules]
[Pages 58055-58057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25545]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[CA102-OPP; FRL-7571-4]


Proposed Approval of Revision of 34 Clean Air Act Title V 
Operating Permits Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision of the following 34 
Clean Air Act (CAA) title V Operating Permits Programs in the State of 
California: Amador County Air Pollution Control District (APCD), Bay 
Area AQMD, Butte County AQMD, Calaveras County APCD, Colusa County 
APCD, El Dorado County APCD, Feather River AQMD, Glenn County APCD, 
Great Basin Unified APCD, Imperial County APCD, Kern County APCD, Lake 
County AQMD, Lassen County APCD, Mariposa County APCD, Mendocino County 
APCD, Modoc County APCD, Mojave Desert AQMD, Monterey Bay Unified APCD, 
North Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County 
APCD, Placer County APCD, Sacramento Metro AQMD, San Diego County APCD, 
San Joaquin Valley Unified APCD, San Luis Obispo County APCD, Santa 
Barbara County APCD, Shasta County APCD, Siskiyou County APCD, South 
Coast AQMD, Tehama County APCD, Tuolumne County APCD, Ventura County 
APCD, and Yolo-Solano AQMD. (EPA's interim approval of Antelope Valley 
AQMD's title V program expired on January 21, 2003. (Since a full 
approval of Antelope Valley AQMD's title V program will be necessary to 
return the program to the District, EPA will address the title V 
program in that district in a separate rulemaking action.) This program 
revision is a response to a Notice of Deficiency (NOD) that EPA 
published in the Federal Register. See 67 FR 35990 (May 22, 2002). The 
NOD explained EPA's finding that the State's agricultural permitting 
exemption at Health and Safety Code 42310(e) unduly restricted the 34 
local districts' ability to adequately administer and enforce their 
title V programs. Subsequently, we partially withdrew the title V 
programs of 34 air districts in California. See 67 FR 63551 (October 
15, 2002). On September 22, 2003, the Governor of California signed SB 
700, which revised State law to remove the agricultural permitting 
exemption. The legislation eliminates the exemption and therefore 
corrects the deficiency we identified in the May 22, 2002 NOD. 
Therefore, today EPA is proposing to approve a revision to the 34 
district title V programs because districts now have the authority to 
permit all major stationary sources, including those agricultural 
sources that were formerly exempt from title V under State law. 
Finalization of this approval is contingent upon our receipt of a legal 
opinion from the California Attorney General that confirms that the 
elimination of the agricultural permitting exemption from State law 
provides the 34 districts with authority to issue title V permits to 
major stationary agricultural sources.

DATES: Comments on this proposed action must be received in writing by 
November 7, 2003.

ADDRESSES: Written comments on this proposed action should be addressed 
to Gerardo Rios, Chief, Permits Office, Air Division (AIR-3), EPA 
Region IX, 75 Hawthorne Street, San Francisco, California, 94105, or 
sent via e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Gerardo Rios, EPA Region IX, at (415) 
972-3974 or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' or 
``our'' means EPA.

Table of Contents

I. Background
II. Description of Proposed Action
III. Effect of EPA's Rulemaking
IV. Request for Public Comment
V. Administrative Requirements

I. Background

    Title V of the CAA Amendments of 1990 required all State permitting 
authorities to develop operating permits programs that met certain 
federal criteria codified at 40 Code of Federal

[[Page 58056]]

Regulations (CFR) part 70. On November 30, 2001, we promulgated final 
full approval of 34 California districts' title V operating permits 
programs. See 66 FR 63503 (December 7, 2001). Our final rulemaking was 
challenged by several environmental and community groups alleging that 
the full approval was unlawfully based, in part, on an exemption in 
section 42310(e) of the California Health and Safety Code of major 
agricultural sources from title V permitting. EPA entered into a 
settlement of this litigation which required, in part, that the Agency 
propose to partially withdraw approval of the 34 fully approved title V 
programs in California.
    Sections 70.10(b) and 70.10(c) provide that EPA may withdraw a 40 
CFR part 70 program approval, in whole or in part, whenever the 
permitting authority's legal authority does not meet the requirements 
of part 70 and the permitting authority fails to take corrective 
action. To commence regulatory action to partially withdraw title V 
program approval, EPA published the NOD in the Federal Register. 
Pursuant to 40 CFR 70.10(b)(2), publication of the NOD commenced a 90-
day period during which the State of California had to take significant 
action to assure adequate administration and enforcement of the local 
districts' programs. As described in EPA's NOD, the Agency determined 
that ``significant action'' in this instance meant the revision or 
removal of California Health and Safety Code 42310(e), so that the 
local air pollution control districts could adequately administer and 
enforce the title V permitting program for stationary agricultural 
sources that are major sources of air pollution.
    During the 90-day period that the State was provided to take the 
necessary corrective action, EPA proposed to partially withdraw title V 
program approval in each of the 34 California districts with full 
program approval. See 67 FR 48426 (July 24, 2002). Since the State did 
not take the necessary action to assure adequate administration and 
enforcement of the title V program within the required time frame, EPA 
took final action, pursuant to our authority at 40 CFR 70.10(b)(2)(i), 
to partially withdraw approval of the title V programs for the 34 local 
air districts listed above.

II. Description of Proposed Action

    We are proposing to approve the program revision of the 34 Clean 
Air Act title V Operating Permits programs in the State of California. 
However, finalization of this proposed rulemaking is contingent upon 
our receipt of a legal opinion from the California Attorney General 
that confirms that the elimination of the agricultural permitting 
exemption from State law provides the 34 districts with authority to 
issue title V permits to major stationary agricultural sources. EPA 
will not promulgate final approval of the program revision until this 
legal opinion has been received.

III. Effect of EPA's Rulemaking

    Our proposal, if finalized, would result in the 34 districts having 
title V programs that require all major stationary sources to obtain 
title V operating permits. It would also terminate EPA's implementation 
of a part 71 Federal operating permit program for State-exempt major 
stationary agricultural sources within the jurisdiction of the 34 
California air districts listed at the beginning of this proposal. If 
EPA finalizes this rule, EPA would not issue any permits to these 
sources, since the 34 districts would have the authority to issue title 
V permits to major agricultural stationary sources beginning on January 
1, 2004. Therefore, if EPA finalizes this rule, EPA will no longer 
require major stationary agricultural sources to submit part 71 permit 
applications and will suspend any outstanding application deadlines.
    The May 22, 2002, NOD started an 18 month sanctions clock pursuant 
to CAA section 179(b). CAA Sec. 502(i)(1) and (2), 40 CFR 70.4(k) and 
70.10(b)(2)-(4). Finalization of today's proposal would terminate this 
sanctions clock.

IV. Request for Public Comment

    We are soliciting public comment on all aspects of this proposal. 
Written comments will be considered before taking final action. To 
comment on today's proposal, you should submit comments by mail (in 
triplicate if possible) as described in the ADDRESSES section listed in 
the front of this document. We will consider any written comments 
received by November 7, 2003.

V. Administrative Requirements

    Under Executive Order 12866 (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. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4).
    This proposed 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 (65 FR 67249, November 9, 2000). This action also does not 
have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve an existing requirement under state law, and 
does not alter the relationship or the distribution of power and 
responsibilities 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), because it is not economically significant.
    In reviewing revisions to state operating permit programs submitted 
pursuant to Title V of the CAA, EPA will approve such revisions 
provided that they meet the criteria 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 part 70 
program revision for failure to use VCS. It would thus be inconsistent 
with applicable law for EPA, when it reviews a part 70 program 
revision, to use VCS in place of a part 70 program revision that 
otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology

[[Page 58057]]

Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This proposed rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

    Dated: September 29, 2003.
Deborah Jordan,
Acting Regional Administrator, Region 9.
[FR Doc. 03-25545 Filed 10-7-03; 8:45 am]
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