## State Implementation Plan **Revision New Source Review**  **Supplemental Information Air Quality Division**  **May 2014** 
**5/8/2014 EPA**  **REVIEW DRAFT**This page is intentionally blank.NSR SIP Revision: Supplemental I nformation 3 May 2014 

## 1 **Introduction** The purpose of this supplement to the State Implementation Plan: New Source Review submitted by

ADEQ on October 29, 2012 (“2012 SIP Revision”) , is to provide clarification of the division of jurisdiction over sources subject to major and minor new source review (NSR) throughout Arizona. Section 2 provides a complete explanation of how jurisdiction is divided among ADEQ and various county agencies. Section 3 updates specific SI P elements related to jurisdiction. 

## 2 **Agency Jurisdiction**  As required b y 40 C.F.R. § 51.162, this section identifies “ the State or local agency which will be responsible for meeting the requirements of [40 C.F.R. Part 51, Subpart I , ‘ Review o f New Sources and Modifications’] in each area of the State. ” This supplement also addresses requirements of section 110(a)(2) (E)(i) of the Clean Air Act, 42 U.S.C. § 7410(a)(2)(E)(i) (adequate personnel, funding and authority to carry out the SIP) , and 40 C.F.R. § 51.240 (identification of organizations that will participate in implementing and enforcing the SIP) with respect to NSR. **2.1 Statutory Authority**  The division of jurisdiction between ADEQ and county air pollution control agencies in Arizona is governed b y A.R.S. § 49

- 402(A) and (B), which provide as follows: 1 A. The department [ADEQ] shall have original jurisdiction over su ch sources, permits and violations that pertain to: 1. Major sources in an y county that has not received approval from the administrator for new source review under the clean air act and prevention of significant deterioration under the clean air act. 2. S melting of metal ore. 3. Petroleum refineries. 4. Coal fired electrical generating stations. 5. Portland cement plants. 6. Air pollution by

portable sources. 7. Air pollution by

mobile sources for the purpose of regulating those sources as prescribed b y article 5 of this chapter and consistent with the clean air act.

1 A certi fied copy of A.R.S. § 49

- 402 was included in the Supplemental Information to the 2012 New Source Review State Implementation Plan submitted on September 6, 2013.NSR SIP Revision: Supplemental I nformation 4 May 2014 8. Sources that are subject to title V of the clean air act and that are located in a county

for which the administrator has disapproved that count y's title V permit program if the department h as a title V program that has been approved b y the administrator. On approval of that county's title V permit program b y the administrator, the count y shall resume jurisdiction over those sources. B. Except as specified in subsection A of this section, the review, issuance, administration and enforcement of permits issued pursuant to this chapter shall be by

the count y or multi

- county air quality

control region pursuant to the provisions of article 3 of this chapter. After the director has provided prior written notice to the control officer describing the reason for asserting jurisdiction and has provided an opportunity to confer, the county

or multi

county air quality

control region shall relinquish jurisdiction, control and enforcement over such permits a s the director designates and at such times as the director asserts jurisdiction at the state level. The order of the director which asserts state jurisdiction shall specify the matters, geographical area, or sources over which the department shall exercis e jurisdiction and control. Such state authority

shall then be the sole and exclusive jurisdiction and control to the extent asserted, and the provisions of this chapter shall govern, except as provided in this chapter, until jurisdiction is surrendered by the department to such county or region. EPA last approved section 49

- 402 into the SIP on June 8, 2000, 65 Fed. Reg. 36353, 36358 (June 8, 2000); 40 C.F.R. § 52.120(c)(96)(i)(A)( 2 ). The legislature amended the statute in 2002 to clarify

section 49

- 402(A)( 8) relating to jurisdiction over title V sources. 2002 Ariz. Sess. L aws Ch. 110, § 1. ADEQ included the current version of section 49

- 402 in the September 6, 2013 supplement to the October 2012 NSR SIP Revision. When ADEQ has jurisdiction over sources unde r A.R.S. § 49

- 402(A) or (B), it may delegate authority

to administer the state air quality program with respect to those sources to a county

under A.R.S. § 49

- 107(A): The director may

delegate to a local environmental agency , count y health department, publ ic health services district or municipality an y functions, powers or duties which the director believes can be competently , efficientl y and properly performed b y the local agency if the local agency accepts the delegation and agrees to perform the delegate d functions, powers and duties according to the standards of performance required b y law and prescribed b y the director. EPA approved section 49

- 107 into the SIP on November 5, 2012. 77 Fed. Reg. 66398, 66404 (Nov. 5, 2012); 40 C.F.R. 52.120(c)(152)(ii)(A) ( 2 )( iv ). **2.2 ADEQ Jurisdiction** 

**2.2(a) Stationary Source Categories**  Section 49

- 402(A) confers on ADEQ unconditional original jurisdiction over five stationary source categories: smelting of metal ores, coal fired electrical generatingNSR SIP Revision: Supplemental I nformation 5 May 2014 stations, petroleum refineries, Portland cement plants and portable sources . Thus, ADEQ has original jurisdiction over these source categories throughout the state , regardless of whether they

are located in a county

with its own air pollution control program

. 2 **2.2(b) Major Sources**  Under subsect ion (1), ADEQ has original jurisdiction over major sources in a county
“ that has not received approval from the administrator [ of EPA] for new source review

... and prevention of significant deterioration [PS D] .” 3 (Emphasis added.) The plain language of subs ection (1) gives ADEQ original jurisdiction over all major sources in a county , unless the count y has obtained EPA approval of both the new source review and PSD programs. 4 Because this subsection covers only major sources, ADEQ interprets “new source revi ew” to mean nonattainment new source review of major sources as required b y Title I, Part D of the Clean Air Act. In addition, ADEQ interprets “approval from the administrator” to include a delegation by EPA of authority to administer the PSD program under 40 C.F.R. § 52.21. We note that in an August 11, 1994 letter (attached as Appendix A ), EPA confirmed that Maricopa and Pima Counties were approved to operate the PSD program pursuant to EPA’s delegation of the PSD program to these counties

. In short, unde r subsection (1) , ADEQ has original jurisdiction over all major sources in any count y that lacks EPA SIP approval or delegation for either nonattainment NSR or PSD. This includes the 12 counties that do not have an y form of air pollution control program: Apache, Cochise, Coconino, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, Yavapai and Yuma. Maricopa and Pima Counties have SIP

- approved nonattainment NSR programs and EPA delegation to administer 40 C.F.R. § 52.21. ADEQ therefore does not hav e original jurisdiction over major sources in those counties. Pinal County

has a SIP

- approved PSD program but lacks an y form of EPA approval for nonattainment NSR. ADEQ therefore has original jurisdiction over major sources in Pinal County , but has delegated that jurisdiction to the County under A.R.S. 49

- 107

. A cop y of relevant excerpts from the current delegation agreement between ADEQ and Pinal County is attached as Appendix B. It should be noted that the Pinal County delegation agreement excerpts and the delegation agreement and assertion of jurisdiction discussed in section 2.3 below (and included in Appendix D ) are provided for informational purposes only and should not be

2 Although not relevant to NSR, ADEQ notes that it also has unconditional original jurisdictio n over mobile sources throughout the state under A.R.S. § 49

- 402(A)(7). 3 Subsection (8) gives ADEQ original jurisdiction over Title V sources in any county which does not have a Title V program that has been approved by EPA . This subsection currently has no effect on ADEQ’s jurisdiction. Maricopa, Pima and Pinal Counties all have fully approved Title V programs and therefore are not subject to this subsection. By its literal terms, this subsection also does not apply to the tw elve counties that have never submitted a Title V program. 4 At first glance, this grant of jurisdiction may seem unnecessarily broad. A major source, however, depending on the pollutants it emits and where it is located, may be subject to both nonattainment NSR and PSD. The approach i n subsection (1) is therefore necessary to prevent a major source from potentially being subject to the permit jurisdiction of two different agencies.NSR SIP Revision: Supplemental I nformation 6 May 2014 incorporated into the SIP. Itwould be extremely burdensome if ADEQ had to obta in EPA approval of a SIP revision every time it delegated or asserted jurisdiction. Instead, EPA’s approval of the statutory

authority and processes for delegating and asserting jurisdiction should be sufficient to satisfy the SIP requirements cited in se ction 2 above.

**2.2(c) Minor Sources**  Subsection B of A.R.S. § 49

- 402 provides that except as specified in subsection A, counties or multi

- county

air quality

control regions shall have jurisdiction over “ the review, issuance, administration and enforcement of permi ts issued pursuant to the state air quality

laws. ” It also provides that a count y “ shall relinquish jurisdiction, control and enforcement over such permits as the director designates and at such times as the director asserts jurisdiction .” This arrangement

— state agency

jurisdiction over specified source categories and count y jurisdiction over the remaining sources, subject to the state agency ’s authority

to assert jurisdiction over additional sources

— has been in place since Arizona submitted its first SIP i n 1972. 5 From 1973 to 1988 the Arizona Department of Health Services (ADEQ’s predecessor) and then ADEQ issued orders or letters asserting air quality jurisdiction over all stationary sources in nine counties that had failed to adopt air pollution control programs or had abandoned existing programs

. 6 There is no record, however, of an y s uch assertion for three counties

— Graham, Greenlee and La Paz

—that never had programs. Thus, the practice of formally

asserting jurisdiction in counties without programs may not have been uniform. A copy

of these assertions of jurisdiction is attached for informational purposes as Appendix C . As noted below, they are not necessary

to establish ADEQ jurisdiction and need not be included in the SIP. In 1992, the legislature ame nded section 49

- 402(B) to provide that before asserting jurisdiction over air quality permits in a count y, ADEQ must give prior notice and an opportunity

to confer to the “control officer.” 1992 Ariz. Sess. L aws Ch. 299, § 8. Section 49

- 47 1(6) defines “control officer” to mean “ the executive head of the department authorized or designated to enforce air pollution regulations, or the executive head of an air pollution control district established pursuant to section 49

- 473 .” In a county with no air pollution control program whatsoever, no such person exists, and it is impossible for ADEQ to provide this notice. ADEQ therefore interprets the current version of section 49

- 402(B) to require an assertion of jurisdiction only where there is a county agency that co uld otherwise exercise that jurisdiction. Where there is no such agency , ADEQ automatically has jurisdiction. ADEQ believes this interpretation is consistent with the legislature’s intent, evident in A.R.S. §§ 49

- 402(A)(1) and (8) , that ADEQ step in to ope rate an air qualit y program in any count y that lacks the authority necessary to carry out that program. In accordance with this interpretation, ADEQ has issued air quality permits to eight minor, non

- Title V sources in the three counties for which there is no record of a state

5 See The State of Arizona Air Pollution Control Implementation Plan at C

- 3 (May 1972) (former A.R.S. § 36

- 1706, predecessor to A.R.S. § 49

- 402). 6 The letters or orders asserting jurisdiction w ere included in previous SIP submissions.NSR SIP Revision: Supplemental I nformation 7 May 2014 assertion of jurisdiction: Graham, Greenlee and La Paz. There has never been a challenge to ADEQ’s authorit y to issue these permits. ADEQ therefore has jurisdiction to issue both minor and major NSR permits in Apache, Cochise, Coconin o, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, Yavapai and Yuma counties. As noted below, the responsible county agencies, rather than ADEQ, have jurisdiction over minor NSR in Maricopa, Pima and Pinal Counties. **2.3 Maricopa and Pima County Jur**  **isdiction** As noted above, Maricopa and Pima Counties have approved nonattainment NSR programs and delegation by EPA to administer the federal PSD program. The Maricopa County Air Qualit y Department (MCAQD) and Pima County Department of Environmental Quality (PDEQ) therefore retain jurisdiction over major sources within their respective counties. Under A.R.S. § 49

- 402(B), MCAQD and PDEQ also have jurisdiction over an y sources not subject to ADEQ’s original jurisdiction, except where ADEQ has asserted jurisdi ction. The county

agencies therefore have jurisdiction to issue minor NSR permits. ADEQ notes that pursuant to these authorities, ADEQ has delegated authority to PDEQ to administer the NSR program with respect to the Sundt Generating Station, a coal

- fi red electric generating station subject to ADEQ’s original jurisdiction under A.R.S. § 49

- 402(A)(4). In addition, ADEQ has asserted jurisdiction over the Rosemont Copper Mine , a minor source in Pima County , under A.R.S. § 49

- 402(B). A cop y of the delegatio n agreement with PDEQ and the assertion of jurisdiction are attached for information al purposes as Appendix D

. **2.4 Pinal County Jurisdiction**  As noted above, ADEQ has original jurisdiction over major sources in Pinal County but has delegated that jurisdiction t o the Pinal County Air Quality

Control District (PCAQCD)

. Under the delegation agreement between ADEQ and PCAQCD , the county is obligated to enforce state major NSR rules, but must also enforce its own rules to the extent they are more stringent. The County therefore retains the authority to enforce the local PSD program approved b y EP A. The ADEQ major NSR rules included in the 2012 SIP revision were revised in 2012 in order to bring them into compliance with all current federal NSR requirements. PCAQCD i s obligated to enforce these requirements under its delegation agreement. The 2012 SIP Revision therefore provides for the enforcement in Pinal County of current federal requirements, including, for example, the PM 2.5 increments. Once Pinal County

secures EPA approval of both its PSD and nonattainment NSR programs, the County

will automatically

reassume original jurisdiction over major sources within its boundaries.NSR SIP Revision: Supplemental I nformation 8 May 2014 **2.5 Summary**  The following table summarizes the division of jurisdiction described above:

**Area S**  **ource Categories ADEQ**  **Jurisdiction County** 

**Jurisdiction** Maricopa Count y Smelting of metal ores Coal fired electrical generating stations Petroleum refineries P ortland cement plants Portable sources Original None

All other major and minor sources None Original Pima County Smelting of metal ores Coal fired electrical generating stations (except Sundt) Petroleum refineries P ortland cement plants Portable sources Original None

Sundt Generating Station Original Delegated Rosemont Copper Mine Asserted Non e All other major and minor sources None Original Pinal County Smelting of metal ores Coal fired electrical generating stations Petroleum refineries Portland cement plants Portable sources Original None

Major sources Original Delegated All other min or sources None OriginalNSR SIP Revision: Supplemental I nformation 9 May 2014 **Area S**  **ource Categories ADEQ**  **Jurisdiction County** 

**Jurisdiction** Rest of State All Original None


## 3 **SIP Provisions Being Replaced** The following table updates the first row of Table 2

- 1 of the 2012 SIP Revision to identify additional provisions relating to jurisdiction that are included in the current SIP and being replaced b y the current version of A.R.S. § 49

- 402. Italso includes a new row to update the state laws relating to delegation of authority included in the SIP. (Items not previously

included in Table 2

- 1 are in bold face.) **Rule or Statute**  **Added SIP Rule(s) Replaced**  **Am ended by**  **NF RM**  A.R.S. § 49

- 402. State and county control **A.R.S. § 36 -**  **1706 . State a**  **nd c**  **ounty c**  **ontrol 7**  **- 1**  **- 8.1 (R9**  **- 3**  **- 801)**  **Original State Jurisdiction**  **7 -**  **1 -**  **8.2 (R9 -**  **3 -**  **802) Assertions of Jurisdiction**  R9

- 3

- 1101. Jurisdiction No

**A.R.S. § 49 -**  **107. Local delegation of state authority**  **7 -**  **1 -**  **8.3 (R9 -**  **3 -**  **803) Delegation of authority**  **No**