[Federal Register: October 8, 2003 (Volume 68, Number 195)]
[Proposed Rules]
[Page 58055-58057]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc03-22]
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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 rios.gerardo@epa.gov.
FOR FURTHER INFORMATION CONTACT: Gerardo Rios, EPA Region IX, at (415) 972-3974 or rios.gerardo@epa.gov.
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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