BAY AREA 

AIRQ,!dALITY 

MANAGEMENT 

ALAMEDA COUNTY 

Tom Bates 

(Secretary) 

Scott Haggerty 

Jennifer Hosterman 

Nate Miley 

CONTRA COSTA COUNTY 

John Gioia 

Mark Ross 

Gayle B. Uilkema 

MARIN COUNTY 

Harold C. Brown, Jr. 

NAPA COUNTY 

Brad Wagenknecht 

(Vice-Chairperson) 

SAN FRANCISCO COUNTY 

Chris Daly 

Eric Mar 

Gavin Newsom 

SAN MATEO COUNTY 

Carol Klatt 

Carole Groom 

SANTA CLARA COUNTY 

Susan Garner 

Yoriko Kishimoto 

Liz Kniss 

Ken Yeager 

SOLANO COUNTY 

James Spering 

SONOMA COUNTY 

Shirlee Zane 

Pamela TorHatt 

(Chairperson) 

Jack P. Broadbent 

EXECUTIVE OFFICER/APCO 

October 28, 2009 

Deborah Jordan, Ph.D. 

Director, Air Division 

United States Environmental Protection Agency, Region IX 

7 5 Hawthorne Street 

San Francisco, CA 94105-3901 

Re: Guidance on "Appendix S" Non-Attainment NSR Permitting for PM2.5 

Sources During PM2.5 Transition Period 

Dear Dr. Jordan: 

I would like to thank you and your stafffor meeting with me and my staff on 

September I 0, 2009, to discuss how EPA's new PMz.s regulatory requirements 

will be implemented over the coming months and years. Obtaining EPA's input 

on PMz.s implementation issues is a very big help to me and my staff in addressing 

these important Clean Air Act requirements going forward, and we greatly 

appreciate it. 

I would also like to request EPA's written concurrence with the proposed approach 

we discussed for the District to issue PM2.5 permits that would satisfy the federal 

PMz.s Non-Attainment NSR permitting requirements under 40 C.F.R. Part 51, 

Appendix S ("Appendix S"), once the Bay Area is designated Non-Attainment for 

PMz.s (24-hour average). This approach would apply during the transition period 

between the time the Bay Area's Non-Attainment designation becomes effective 

and the time that the District adopts its own District-specific PM2.5 permit 

requirements and has them approved by EPA into the California State 

Implementation Plan ("SIP"). 

The approach we discussed would involve the District including PMz.s permit 

conditions in the District Authorities to Construct ("A TCs") and Permits to 

Operate ("PTOs") that it issues under District Regulations 2-1 and 2-2. Although 

the District does not have provisions in those regulations that specifically address 

PMz. 5, the District does have general authority under Regulation 2-1-403, "Permit 

Conditions", to impose any permit conditions reasonably necessary to ensure 

compliance with applicable District, California or federal requirements. The 

District could use this general authority to impose permit conditions that would 

ensure compliance with the PMz 5 provisions of Appendix S in the District 

ATCs/PTOs for sources with PM2 5 emissions that trigger Appendix S 

requirements. If appropriate PM2.s conditions were included to ensure compliance 

with those PMz.s requirements, then the District ATCs/PTOs could serve to satisfy 

the federal Appendix S PM25 Non-Attaimnent NSR permit requirements for those 

939 ELLIS STREET • SAN FRANCISCO CALIFORNIA 94109 • 415.771.6000 • www.baaqmdgov 
sources. Such sources could then usc their District ATCs/PTOs, with the 

appropriate PM2.s conditions included, to demonstrate compliance with the NonAttainment NSR requirements of Appendix S, and would not need to obtain a 

separate federal Non-Attainment NSR permit from EPA to satisfy their federal 

PM2.s obligations. 

The District believes that this approach is authorized and appropriate under 

Califomia law, given the provisions of District regulations cited above. Including 

appropriate PM2.5 permit requirements necessary to satisfy the federal Appendix S 

requirements for PM2_5 is clearly authorized under the plain language of District 

Regulation2-1-403, and the District's NSR regulatory program of which 

Regulation 2-1-403 is a part is clearly authorized under California Health & Safety 

Code sections 42300 et seq. The District can therefore see no reason under 

California law why it would not be able to include such conditions in the District 

ATCs/PTOs if it will allow subject sources to use their District ATCs/PTOs to 

satisfy their federal Clean Air Act requirements. 

The District requests EPA's concurrence that, as a matter of federal law, this 

approach would be effective and appropriate as a means for subject sources to 

satisfy their federal requirements for PM2.5. Although the District A TCs/PTOs are 

state-law permits issued under California law, not federal permits, the District 

believes that it was EPA's intention in its PM2.5 Implementation Rule that state-law 

permits issued under states' existing SIP-approved Non-Attainment NSR 

permitting programs that include appropriate PM2 5 requirements would satisfy the 

federal Appendix S requirements. (See 73 Fed. Reg. 28321,28342 (May 16, 2008) 

("[W]e believe that the majority of states have the legal authority to issue permits 

consistent with these (Appendix S] requirements under an existing SIP-approved 

permitting program.").) Moreover, District Regulation 2-1-403 is included in the 

Bay Area's current SIP-approved Non-Attainment NSR regulations (see 64 Fed. 

Reg. 3850 (January 26, 1999) (approving District NSR regulations, including 2-1-

403)), so the authority under which the District would impose these conditions is 

SIP-approved, even though the District has not yet had a chance to finalize specific 

PM2.5 requirements for SIP approval. The District therefore believes that the 

District's state-law permits issued under District Regulation 2-1 and 2-2 could be 

effective to satisfy a source's federal Appendix S requirements, as long as such 

permits include appropriate PM2.

5 conditions to ensure compliance with Appendix 

S's PM2.5 provisions. 

The District would greatly appreciate EPA's concurrence with the effectiveness of 

this proposed approach to allow subject sources to use their District ATCs/PTOs to 

satisfy their federal Appendix S Non-Attainment NSR permitting requirements 

during the PM2.5 transition period. In the alternative, should EPA disagree that this 

would be an appropriate and legally effective approach to handling NonAttainment NSR permitting for PM2_5 during the transition period, the District 

would appreciate hearing EPA's disagreement and concerns. The District would 

appreciate EPA's response at EPA's earliest convenience so that the District can 

begin planning for processing and issuing A TCs/PTOs with appropriate PM2 5 

provisions once the Bay Area's PM2_5 (24-hour) Non-Attainment designation 

becomes effective. 

939 ELLIS STREET • SAN FRANCISCO CALIFORNIA 94109 • 415.771.6000 • www.baaqmd.gov 
Thank you for your consideration of these important PM2.

5 permitting issues, and thank you again 

for meeting with us on September 1 o'h 

Sincerely, 

D /1 •• r-·-· 1-1"-1>~\) 

P. Broadbent 

cutive Officer/ APCO 

cc: Brian Bunger, Esq. 

Nancy Marvel, Esq. 

93 9 ELLIS STREET • SAN FRANCISCO CALIFORNIA 94109 • 415.771.6000 • www.baaqmd.zav