# TECHNICAL SUPPORT DOCUMENT

Repeal and Replace Revisions to the Arkansas State Implementation Plan

Submitted on November 6, 2012

Regulation 9 – Fee Regulation

Chapter 1 – Title

Chapter 2 – Definitions

Chapter 3 – Permit Fee Payment

Chapter 5 – Air Permit Fees

Chapter 9 – Administrative Procedures



# March 24, 2015

FOR FURTHER INFORMATION CONTACT: Ms. Traci e Donaldson, United States Environmental

Protection Agency Region 6, Air Permits Sec tion (6PD-R), 1445 Ross Avenue, Dallas, Texas 75202-

2733, (214) 665-6633.

# 2 

# Contents:

I. Introduction

A. Overview

B. What are we addressing in this action?

C. What are we not addressing in this action?

II. Technical Evaluation of SIP Submittal

A. Review of Regulation 9 Replacement Provisions

B. Part 51, Appendix V Completeness Checklist

III. Proposed Action

Appendix A: Chapter 2 definitions not approved into the SIP

# 3 

# I. Introduction

A. Overview

This technical support document (TSD) review s a portion of a revision to the Arkansas

State Implementation Plan (SIP), submitte d on November 6, 2012. This review will

determine if the proposed changes to the Arkansas SIP are consistent with the

requirements of the Clean Air Act and EPA’s policy and guidance.

The following sections identify the specifi c portions of the November 6, 2012 submittal

that are and are not re viewed by this action.

B. What are we addressing in this action?

On June 22, 2012, the Arkansas Pollution C ontrol and Ecology Co mmission (APC&EC)

adopted revisions to Regulation 9 – Permit Fee Regulations, Regula tion 19 – Regulations

of the Arkansas Plan of Implementation fo r Air Pollution Control, and Regulation 26 –

Regulations of the Arkansas Operatin g Air Permit Program. On October 26, 2012,

APC&EC adopted additional revisions to Regulation 19. Governor Beebe submitted

these regulations as a revisi on to the Arkansas SIP in a letter dated November 6, 2012.

As part of this action, the EPA is addressi ng only the revisions to Regulation 9 contained

in the November 6, 2012 submittal with an e ffective date of July 9, 2012. The SIP

revision submittal requested that the EPA repeal the current SIP-approved provisions

found in Regulation 9 and replace with the new provisions included in the submittal for

Chapters 1, 2 1 

# , 3, 5, and 9, of Regulation 9 which relate to the state’s air program. This

action will replace the Regulation 9 approved in to the SIP with the current version of

Arkansas’ Regulation 9. This includes revi sions to Regulation 9, Chapter 5 addressing

fee requirements for carb on dioxide and methane.

C. What are we not addressing in this action?

In addition to the repeal and replacement of the Fee Provisions at Regulation 9, the

November 6, 2012, Arkansas SIP submittal incl uded revisions to Regulations 19 and 26.

Table 1 below identifies each of the submitte d provisions and the manner in which the

provisions have been addressed, or will be addressed by the EPA.

Table 1: Evaluation Summary of the Submitted Revi sions to Each Section in the November 6, 2012

Submittal

Regulation/Chapter Title Comments

Regulation 9, 

# Chapters 1,

2, 3, 5, and 9 Fee Regulation Evaluated in this TSD and

action

Regulation 19, Chapter 1 Title, Intent, a nd Purpose Approved by EPA on March 4,

2015 at 80 FR 11573.

1 

# Only the portions of Chapter 2 that relate to the Air prog ram as included in the SIP. The definitions to include are

specified in ADEQ letter from Mike Bates to Tracie Donaldson, EPA dated December 11, 2014.

# 4 Regulation/Chapter Title Comments

Regulation 19, Chapter 2 Definiti ons Approved by EPA on March 4,

2015 at 80 FR 11573.

Regulation 19, Chapter 4 Minor Source Review No action at this time;

Severable from provisions for

permit fees because addresses

Minor NSR permit

requirements only.

Regulation 19, Chapter 9 Prevention of Significant

Deterioration Approved by the EPA on April

2, 2013, at 78 FR 19596.

Regulation 19, Appendix A Insignificant Activities List No action at this time;

Severable from provisions for

permit fees because addresses

Minor NSR permit

requirements only.

Regulation 26, Chapter 3 Requirements for a Permit,

Applicability No action at this time;

Severable from provisions for

title I SIP purposes, Revisions

to Arkansas title V program to

address GHG permitting under

title V.

Regulation 26, Chapter 4 Applications for Permits No action at this time;

Severable from provisions for

title I SIP purposes, Revisions

to Arkansas title V program to

address GHG permitting under

title V.



# The EPA is taking no action at this time to th e submitted revisions to Regulation 19, Chapter 4

and Appendix A. These submitted provisions are integral to the Arkansas Minor New Source

Review program and are not related to the curre nt action to evaluate the fee provisions in

Regulation 9. The EPA will address the minor NSR provi sions in a separate action at a later date.

The EPA is also taking no action at this time to the revisions to the Arkansas title V program at

Regulation 26, Chapters 3 and 4. The EPA will addre ss these revisions to the title V program at a

later date after we have reviewed the submitte d provisions in light of the June 23, 2014, decision

by the Supreme Court of the United States in Utility Air Regulatory Group (UARG) v. EPA (No.

12-1146)

.II. Technical Evaluation of the Arkansas November 6, 2012 SIP Revision SubmittalThe action accompanying this TSD addresses the proposed revisions to theFee Regulations found in Regulation 9 of the ArkansasSIP.Regulation 9 contains provisions regarding the fee terms, fee amounts, and fee payment schedules that ensure that adequate feesarecollected to meet the needs of the Arkansas Department ofEnvironmental Quality (ADEQ) to perform essential permitting,compliance, enforcement and monitoring activities. As part ofthe November 6, 2012 SIP revisionsubmittal, Arkansas requested awithdrawal of the current SIP-approved provisions contained in Regulation 9 and replacement with the portions of Regulation 9 thatwere included in the SIP submittal as replacement fee regulationprovisions that relate to theair program. These provisions arecontained in Chapters 1, 2, 3, 5, and 9 of Regulation 9, which Arkansas submitted in full as part of the November 6, 2012 SIP revisionsubmittal.Since this rulemaking will act to repeal the current SIP-approved fee regulation provisions and replace with the provisions adopted June22, 2012, effective July 9, 2012, a line-by-line comparison is not included in this analysis. Instead, the submitted replacementprovisions contained in Regulation 9, which relate to the air program, are provided below, as well as, a summary of the provisions andevaluation against the applicable federal requirements.A. Review of Regulation9 Replacement ProvisionsTable II.A.1 –Regulation 9, Chapter 1 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsCHAPTER 1: TITLEReg. 9.101 TitleThis regulation shall be known by and may be cited by the short title “RegulationNo. 9: Fees.”This section specifies the short title used to refer to Regulation 9. Languagesimilar to current SIP-approved language in Regulation 9, Section 2.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.102 PurposeIt is the purpose of this regulation to develop and implement a system of fees forpermits issued by the Arkansas Departmentof Environmental Quality pursuant tothe provisions of the Water and Air Pollution Control Act (Act 472 of 1949, asThis section specifies the purpose ofRegulation 9. Regulation 9 containsfee regulations for the water permit program, air permit program, solidwaste permit program, and the laboratory certification fee program.Table II.A.1 –Regulation 9, Chapter 1 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012Commentsamended, A.C.A. §8-4-101 et seq.) or the Solid Waste Management Act (Act 237of 1971, as amended, A.C.A. §8-6-201 et seq.). Act 817 of 1983, as amended, Act1254 of 1993, as amended, and Act 1052 of 1999 (A.C.A. § 8-1-101 et seq.)authorize the collection and enforcement ofthese fees and authorize their use todefray the costs of operating the Department.It is also the purpose of this regulation toassess reasonable fees to establish and toadminister the State Environmental Laboratory Certification Program Act (Act876 of 1985, as amended, A.C.A. § 8-2-201 et seq.)Language similar to current SIP-approved language in Regulation 9,Section 1. Reference to fee program for the State EnvironmentalLaboratory Certification Program Act was added.As part of this action we are only evaluating the air permit program feeregulations, found in Chapters 1, 2, 3, and 5, for incorporation into theArkansas SIP. The other programs are beyond the scope of the SIP, andArkansas has not submitted those provisions as part of the SIP revisionsubmittal. Our proposed approval of the references to these programs inReg. 9.102 does not approve the underlying programs that are beyond thescope of the SIP, or the associated fee regulations, into the Arkansas SIP.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.103 ApplicabilityPermit fees established by this regulation shall be applicable to all water permits,including no-discharge and closed system permits, issued under the provisions ofthe Water and Air Pollution Control Act, as amended, all air permits issued underthe Water and Air Pollution Control Act, as amended, or any federal water or airpermit program where permitting authority has been delegated to the Department(unless fees for such a program are otherwise provided by law), and all solidwaste disposal permits issued under the provisions of the Solid WasteManagement Act, as amended, and the Solid Waste Management Code. Facilitiesoperating under the provisions of the “Permits by Rule” or “Authorization byRule” will be exempted from this regulation until such time that the facilitysubmits an application for an individual permit within each applicable permitcategory.Laboratory certification fees established bythis regulation shall be applicable toall laboratories certified by the Department. The fees include,but are not limitedto, the reasonable costs of administering the provisions of the program and thereasonable administrative costs of initial issuance, initial certificate, renewedcertificates, and the expenses associated with conducting evaluations.This section specifies the applicability of the Chapter 9 fee regulations.The applicability provisions address all fee programs addressed in Chapter9. Language similar to current SIP-approved language in Regulation 9,Section 4. Reference to fee program for the State EnvironmentalLaboratory Certification Program Act was added.As discussed above, as part of this action we are only evaluating the airpermit program fee regulations, found in Chapters 1, 2, 3, and 5, forincorporation into the Arkansas SIP. The other programs are beyond thescope of the SIP, and Arkansas has not submitted those provisions as partof the SIP revision submittal. Our proposed approval of the references tothese programs in Reg. 9.103 does not approve the underlying programsthat are beyond the scope of the SIP, or the associated fee regulations, intothe Arkansas SIP.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.104 SeverabilityTable II.A.1 –Regulation 9, Chapter 1 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsIf any provision of this Regulation or the application thereof to any person orcircumstance is held invalid, such invalidity shall not affect other provisions orapplications of this Regulation which can be given effect without the invalidportion or application, and to this end the provisions of this Regulation aredeclared to be severable.This section contains the severability provisions for Chapter 9. Languagesimilar to current SIP-approved language in Regulation 9, Section 12.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.The analysis presented above in Table II.A.1 demonstrates thatthe revisions to Arkansas Regulation 9, Chapter 1 submitted onNovember 6, 2012, are approvable.Table II.A.2 –Regulation 9, Chapter 2 Provisions2Revisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsCHAPTER 2: DEFINITIONSAll terms used in this regulation, unlessthe context otherwise requires, or unlessspecifically defined in the enabling legislation or in federal regulations adopted byreference for program management, shall have their usual meaning. In addition,for purposes of this regulation, the following definitions apply:This serves as an introduction to the Definitions contained in Regulation 9.Language similar to current SIP-approved language in Regulation 9,Section 3.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Administrative Permit Amendment” means a minor change or permit revisionwhich is not typically considered a permit modification, as defined by applicablestatutes or regulations, or a minor modification which does not require publicnotice and opportunity for comment. For example, typographical corrections orrevisions, or other changes initiated by the Department, might be consideredadministrative permit amendments. Some minor changes requested by thepermittee may also qualify as administrative permit amendments. For purposes ofChapter 5, administrative permit amendments are defined in Regulations 18, 19,This is a new definition of “Administrative Permit Amendment” that is notcontained in the current SIP-approved language in Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.2A list of definitions that are not being approved into the SIP are listed in Appendix ATable II.A.2 –Regulation 9, Chapter 2 Provisions2Revisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012Commentsand 26. The Director, in his discretion, may decide whether a revision would beconsidered an administrative amendment. No fee will be charged foradministrative permit amendments.“Annual Fee” means the fee required tobe submitted upon the facility-specificannual invoice date for a permit issued pursuant to the Water and Air PollutionControl Act, as amended, or the Solid Waste Management Act, as amended.This is a new definition of “Annual Fee” that is not contained in thecurrent SIP-approved language in Regulation 9. The definition is similarto the SIP-approved definition of “Annual Review Fee”.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Commission” means the Arkansas Pollution Control and Ecology Commission.Definition is similar to current SIP-approved definition of “Commission”in Regulation 9, Section 3.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Department” means the Arkansas Department of Environmental Quality(ADEQ) or its successor.Definition is similar to current SIP-approved definition of “Department” inRegulation 9, Section 3.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Director” means the Director of the Arkansas Department of EnvironmentalQuality or his designated representative.Definition is similar to current SIP-approved definition of “Director” inRegulation 9, Section 3.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“EPA” means the United States Environmental Protection Agency.This is a new definition of “EPA” that is not contained in the current SIPapproved language in Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Facility” means an activity or operation within a specific geographical locationincluding property contiguous thereto. A facility may consist of severalmanufacturing, treatment, storage, or disposal operational units. For purposes ofthis permit fee regulation, a facility shall be considered to be all property,Definition is similar to current SIP-approved definition of “Facility” inRegulation 9, Section 3.Table II.A.2 –Regulation 9, Chapter 2 Provisions2Revisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012Commentsfacilities, or operations owned, leased, or operated by a single entity, whether amunicipal, county, or state government, corporation, partnership, or proprietorshipin the same geographical area, forming an integral part of the same activity oroperation, whether or not such activity lies within the boundaries of the city orcounty. For purposes of permit fee assessment only, such property, facilities, oroperations shall be considered as a single facility if they are regulated by acommon state or federal permit within eachpermit category, or in the future suchconsolidation of multiple permits can be realized within the scope of applicablepermitting regulations, and the facilities or operations are under the supervision ofa single plant manager/superintendent.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Initial Fee” means the fee which is required by law to be submitted with allapplications for permits issued pursuant to the Water and Air Pollution ControlAct, as amended, and the Solid Waste Management Act, as amended, and whichmust be received by the Department prior to the issuance of such a permit.Definition is similar to current SIP-approved definition of “Initial PermitApplication Fee” in Regulation 9, Section 3.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Issue Date” means the date theDepartment signed the permit.This is a new definition of “Issue Date” that is not contained in the currentSIP-approved language in Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Modification Fee” means that fee required by law to be submitted formodification of any existing or future permit required by the Water and AirPollution Control Act, as amended, or the Solid Waste Management Act, asamended, such modification being eitherat the request of the permittee or asrequired by law or regulation. The fee may vary depending upon whether thepermit modification or renewal is considered to be a minor or major modification,as defined in applicable statutes or regulations, or otherwise determined by theDirector.Definition is similar to current SIP-approved definition of “ModificationFee” in Regulation 9, Section 3.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Non-Part 70 Permit” means an air permit that is issued pursuant to a regulationother than Part 70 of Title 40 of the Code of Federal Regulations (40 CFR Part70).This is a new definition of “Non-Part 70 Permit” that is not contained inthe current SIP-approved language in Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Table II.A.2 –Regulation 9, Chapter 2 Provisions2Revisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012Comments“Part 70 Permit” means an air permit thatis issued pursuant to 40 CFR Part 70.This is a new definition of “Part 70 Permit” that is not contained in thecurrent SIP-approved language in Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.“Renewal Permit” means a permit issued to a facility upon expiration of anexisting permit. A modification fee may be assessed, depending upon whether therenewal is considered to be a minor or major modification, as defined inapplicable statutes or regulations, or otherwise determined by the Director.Definition is similar to current SIP-approved definition of “RenewalPermit” in Regulation 9, Section 3. Discussion of potential applicable feesfor a Renewal Permit has been added to the definition consistent with therevisions to the fee regulation programs.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.The analysis presented above in Table II.A.2 demonstrates thatthe revisions to Arkansas Regulation 9, Chapter 2 submitted onNovember 6, 2012, are approvable.Table II.A.3 –Regulation 9, Chapter 3 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsCHAPTER 3: PERMIT FEE PAYMENTReg. 9.301 Permit Fee Payment(A) Fee CalculationThe applicant may calculate the initial permit application fee or permitmodification fee and include it with the permit application, or theapplicant may request that the Department calculate the fee afterreviewing the application and forward an invoice to the applicant forpayment.(B) Fee PaymentThis section includes provisions related to fee payment, including feecalculation, payment schedules, andlate payment fees. Some of thislanguage is similar to the SIP-approved language in Regulation 9, Section7.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Table II.A.3 –Regulation 9, Chapter 3 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsApplicable permit fees shall be paid by check or money order payable tothe Department for deposit in the State Treasury. The permit will not beissued until such fee is received by the Department.(C) Annual Fee PaymentAnnual fees shall be due forty-five (45) days after the first day of themonth in which the Permittee is billedfor the required annual fee. Failureto receive this bill does not relievethe Permittee from liability for theannual fee, but late charges will not beassessed until forty-five (45) daysafter the Permittee has been notifiedthat the annualfee is due. TheDirector may waive annual fees ora portion thereof, for new facilitieswhich are not in operation, unless such waiver is otherwise prohibited byState or Federal law.(D) Failure to Pay Annual FeesA permitted facility failing or refusing to pay the annual fee in a timelymanner shall be subject to a late payment charge as established in theseregulations. Continued refusal to pay the required fees after a reasonablenotice shall constitute grounds for legal action by the Department, whichmay result in revocation of the permit. When payment of fees is made bycheck which is subsequently returned due to insufficient funds, all reviewwork on the particular applicationwill immediately cease until the fee ispaid in cash or by money order.(E) First Annual Fee PaymentThe annual fee shall be assessed upon the facility-specific annual invoicedate. The Department shall credit the first annual fee, on a prorated basis,if the initial fee for the permit was assessed within 12 months of the firstannual fee for the permit. The Department may credit the annual fee, on aprorated basis, if a modification feefor the permit was assessed within 12months of the annual fee for the permit.(F) Annual Fee Late Payment ChargeA late payment charge shall be assessed to facilities failing to pay theannual fee within forty-five (45) days of the billing date, and shall beassessed at the rate of ten percent (10%) of the annual fee.LATE PAYMENT CHARGE =TEN PERCENT (10%) OFANNUAL FEETable II.A.3 –Regulation 9, Chapter 3 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsReg. 9.302 RefundsExcept for pre-site investigation fees and interim authority or variance applicationfees as described in Chapters 6 and 7, up to forty percent (40%) of a fee submittedpursuant to this regulation is refundable in the event that the request for the permitaction for which the fee was submitted is withdrawn by the applicant prior to thefinal permit decision. The Director shall retain as much of the above-cited fortypercent (40%) as he in his sole discretion, determines is necessary to cover thereasonable administrative and technicalreview costs incurred in the reviewprocess.This section discusses the refund policy for fees required under Regulation9, specifically how much of a fee is refundable and under whatcircumstances. Some of the language in this section is similar to the SIPapproved language in Regulation 9, Section 8.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.The analysis presented above in Table II.A.3 demonstrates thatthe revisions to Arkansas Regulation 9, Chapter 3 submitted onNovember 6, 2012, are approvable.Table II.A.4 –Regulation 9, Chapter 5 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsCHAPTER 5: AIR PERMIT FEESAIR PERMIT FEES.Reg. 9.501 ApplicabilityThe air permit fees contained in this section are applicable to (1) non-part 70permits, (2) part 70 permits, and (3) general permits.This section states the type of permits that have applicable permits underRegulation 9, Chapter 5.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.502 Terms Used in Fee Formulas(A)$/ton factoris $16/ton until September, 1994, after which time itshall be increased annually by the percentage, if any, by which thefederal Consumer Price Index exceedsthat of the previous year. TheDirector may, after considering the factors contained in Reg.9.901 of thisregulation, decide not to increase the $/ton factor in a year when the feefund has a balance greater than 150% of the amount of money expendedfrom that fund in the previous year.(B)tons/year predominant air contaminantis the permitted emissionrate of the most predominant aircontaminant (other than carbonmonoxide, carbon dioxide and methane). The maximum value shall be nogreater than 4,000 tons/year per facility.(C)tons/year chargeable emissionsis the sum of the permitted emissionrates of all air contaminants (otherthan carbon monoxide, carbon dioxideand methane). The maximum value per air contaminant shall not exceed4,000 tons/year per facility.This section defines the terms used to calculate the fees under Regulation 9,Chapter 5. As stated in this section, the $/ton factor is adjusted annually,as necessary, based on the Consumer Price Index. Emission rates forcarbon monoxide, carbon dioxide, and methane are excluded from the“tons/year predominant air contaminant”and “tons/year chargeableemissions” determinations.EPA’s Tailoring Rule did not require states to change permit feerequirements to address greenhouse gases (carbon dioxide and methane).Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.503 Initial FeesInitial fees shall be assessed according to the following formulas:(A) Non-part 70 permitsinitial fee = $/ton factorx tons/year predominant aircontaminantProvided, however, no initial fee shall be less than $500 exceptfor general permits issued to Non-part 70 sources.(B) Part 70 permitsThis section provides the initial fee calculation formulas for both Part 70and non-Part 70 permits. This language is similar to the SIP-approvedlanguage in Regulation 9, Section 10. However, the fee calculationformulas have been updated with the new Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Table II.A.4 –Regulation 9, Chapter 5 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012Comments(1) Permits issued to part 70 sources already holding an activeair permit not issued pursuant to Department Regulation #26:initial fee = [$/ton factor x tons/year chargeableemissions] - amount of last annual airpermit fee invoiceProvided, however, that no initial fee shall be less than$1,000.(2) Permits issued to part 70 sources which do not hold an activeair permit:initial fee = $/ton factor x tons/year chargeableemissionsProvided, however, that no initial fee shall be less than the$/ton factor x 100.Reg. 9.504 Annual FeesAnnual fees shall be assessed according to the following formulas:(A) Non-part 70 permitsannual fee = $/ton factor x tons/year predominant aircontaminantProvided, however, that no annual fee shall be charged for apermit in which the tons/year predominant air contaminant isless than 10 tons/year.(B) Part 70 permitsannual fee = $/ton factor x tons/year chargeable emissionsProvided, however, that no annual fee shall be less than the$/ton factor x 100.This section provides the annual fee calculation formulas for both Part 70and non-Part 70 permits. This language is similar to the SIP-approvedlanguage in Regulation 9, Section 10. However, the fee calculationformulas have been updated with the new Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.505 Modification FeesModification and renewal fees for air permits shall be assessed according to thefollowing formulas:(A) Non-part 70 permitsmodification fee = $/ton factor x tons/year net emissionsincrease ofpredominant air contaminantThis section provides the modification fee calculation formulas for bothPart 70 and non-Part 70 permits. This language is similar to the SIPapproved language inRegulation 9, Section10. However, the feecalculation formulas have been updated with the new Regulation 9.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Table II.A.4 –Regulation 9, Chapter 5 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsHowever, no modification fee shall be less than $400, or morethan the $/ton factor x 4,000.(B) Part 70 permits(1) For each non-minor permit modification or each renewalpermit involving a non-minor permit modification:fee = $/ton factor x tons/year net emission increase ofchargeable emissionsHowever, no fee shall be lessthan $1,000 or more than the$/ton factor x 4,000.(2) $500 for each minor permit modification or each renewalpermit involving only a minor permit modification.Reg. 9.506 Administrative Permit Amendments and Renewal PermitsThere shall be no fee charged for administrative permit amendments or renewalpermits not involving a permit modification, as such are defined in Regulation 26:Arkansas Operating Air Permit Program, Regulation 19: State ImplementationPlan for Air Pollution Control, or Regulation 18: Arkansas Air Pollution ControlCode, as applicable.This section excludes administrative permit amendments and renewalpermits not involving a permit modification from permittingfees.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.507 General Permits(A) In lieu of the fees schedules above, and except as provided in 9.507(B)below, sources which qualify for a General Air Permit issued pursuant toAPC&EC Reg. Nos. 18, 19, or 26 shall be subject to an Initial Fee andAnnual Fee as described below:(1) The Initial Fee of $200.00 shall be remitted with the Notice ofIntent (NOI) for coverage under the applicable General Permit.(2) Until a Notice of Termination(NOT) is submitted and approvedby the Department, the Permittee shall be billed $200.00 annuallythereafter on the anniversary date of coverage.(3) When general permits are revised, no additional initial fee willbe required to be submitted ifthe currently permitted facility hasmaintained coverage under the existing general permit.(B) The following General Permit holders shall not be assessed or billed anAnnual Fee:This section provides the initial and annual fee schedule for permitteesauthorized under general permits.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Table II.A.4 –Regulation 9, Chapter 5 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012Comments(1) Non-part 70 General Permits in which the tons/yearpredominant air contaminant is less than 10 tons per year.Reg. 9.508 Permit Fees for Certain Small Businesses Subject to Part 70Permitting Requirements(A) For purposes of this section, the term “small business stationary source”means a stationary source that :(1) is owned or operated by a person that employs 100 or fewerindividuals(2) is a small business concern as defined in the federal SmallBusiness Act (www.sba.gov);(3) is not a major stationary source;(4) is permitted to emit less than 50 tons per year of any regulatedpollutant; and(5) is permitted to emit less than 75 tons per year of all regulatedpollutants.(B) Upon written request, the Director may reduce the Part 70 initial, Part 70annual, or Part 70 modification fee fora small business stationary source if thesource demonstrates to the satisfaction ofthe Director that they do not have thefinancial resources to pay the fee as calculated.(C) When reducing permit fees inaccordance with Reg.9.508(B), theDirector shall calculate the fee as if the source is a non-Part 70 source.This section provides the opportunity for sources meeting the definition of a“small business stationary source” to have reduced Part 70 initial, annualor modification fees.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.The analysis presented above in Table II.A.4 demonstrates thatthe revisions to Arkansas Regulation 9, Chapter 5 submitted onNovember 6, 2012, are approvable.Table II.A.5 –Regulation 9, Chapter 9 ProvisionsRevisions to the AR SIPAdopted by ADEQ on June 22, 2012Effective July 9, 2012Submitted to the EPA onNovember 6, 2012CommentsCHAPTER 9: ADMINISTRATIVE PROCEDURESReg. 9.901 Department Review of FeesThe Department shall undertake a biennial re-evaluation of the permit feeschedule as contained in this regulationwithin sixty (60) days of receiving itsapproved budget for the next biennium. The evaluation shall reflect the currentneeds of the Department to perform essential permitting, compliance, enforcementand monitoring activities; the resources available; the balance of the permit feefund from the previous biennium; anticipated state and federal appropriations;status of delegation of federal programs; and any other factors deemed relevant tothe study by the Department.This section contains the procedures to be followed when the Departmentreviews the fees contained in Chapter 9. Language similar to current SIPapproved language in Regulation 9, Section 11.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.902 AppealsIf any applicant/permittee disagrees with the Department’s decision on anassessment of fees, the applicant/permittee may appeal such decision inaccordance with the applicable provisions of theWater and Air Pollution ControlAct, the Solid Waste Management Act, the State Environmental LaboratoryCertification Program Act, and Pollution Control and Ecology CommissionRegulation No. 8, Administrative Procedures.This section contains the provisions that allow for appeal of feeassessments by applicants/permittees.Language similar to current SIPapproved language in Regulation 9, Section 13.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.Reg. 9.903 Effective DateThis regulation is effective ten (10) daysafter filing with theSecretary of State,the State Library, and the Bureau of Legislative Research.This sections states when the Chapter 9 Fee Regulations become effective.Language similar to current SIP-approved language in Regulation 9,Section 14.Revision does not impact the regulation’s ability to meet the applicablefederal requirements for fees and is approvable.The analysis presented above in Table II.A.5 demonstrates thatthe revisions to Arkansas Regulation 9, Chapter 9 submitted onNovember 6, 2012, are approvable.The Fee Regulations contained in Regulation9 are specifically reviewed with respectto the requirements for fees under Section110(a)(2) of the Clean Air Act (CAA or the act herein), as requirements of the State implementation plans for national primaryandsecondary ambient air quality standards (42 U.S.C. 7410,et seq.). Section 110(a)(2) of the Act requires that fees collected be sufficientto cover the costs of reviewing and actingon permit applications and the costs of implementing and enforcing the terms and conditionsof the issued permits. Specifically, Section110(a)(2)(E)(i) requires that the SIP shall“provide necessary assurances that theState willhave adequate personnel, funding, and authority under State law to carry out such implementation plan”. Section 110(a)(2)(L) states thatthe SIP shall “require the owner or operator of each major stationary source to pay to the permitting authority, as a conditionof anypermit required under this chapter, a sufficient fee to cover – (i) thereasonable costs of reviewing and acting upon any application forsuch a permit and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing theterms and conditions of any such permit (not including any court costs associated with any enforcement action”, until such feerequirement is superseded with respect to such sources by the Administrator’s approval of a feeprogram under subchapter V of thischapter”. The fee assessment provisions contained in Regulation 9 and submitted to EPA are a portion of the regulatory scheme ofADEQ's construction permitting program, and provide for permitting fees to cover the cost of reviewing, approving, implementingandenforcing a permit under the permitting program. EPA has previouslyreviewed the ADEQ regulations for the Nonattainment NewSource Review Program, Prevention of Significant Deterioration Permitting, and Minor NSR program, and has approved these programsas being consistent with the federal requirements. Based on our evaluation of thesefee assessment rules and revisions described in thisTSD, EPA finds they meet the fee relatedrequirements of section 110(a)(2) regardingrevised costs for these previously approvedprograms, and thus approves the rules and revisions as explained in Table II.The repeal and replacement SIP revision alsoincluded the most recent changes to Regulation 9 at Sections9.502(B) and (C),which amend the air permit fee schedule toexclude carbon dioxide and methane from the“tons/year predominant air contaminant”and“tons/year chargeable emissions” for the purpose of calculating permit fees. The EPA’s authority to regulate emissions of greenhousegases, including carbon dioxide and methane,arises in the EPA’s Tailoring Rule and other associated rulemakings. See 75 FR 31584,June 3, 2010. However, the Tailoring Rule does not require Statesto change permit fee requirements to address greenhouse gases.Requirements for States to charge permitfees for title I major stationary sourcepermits are governed byCAA section 110(a)(2)(L)which requires that States must charge sufficient fees to cover the cost of development and implementation of permits for titleI majorsources and major modifications. Section 110(a)(2)(L) is not specific to pollutants, therefore it is left to each permitting authority todetermine the most appropriate feeschedule for the specific program.The SIP is intended to implement title I of the CAA and title Vspecific requirements are not generally included into the SIP.However,because the Arkansas air permitting program is a one permit system(meaning that title I and title V are issued together) the feeregulations are combined.3The EPA has not evaluated the submitted Regulation9 Fee Provisions for sufficiency under for title Voperating permit program as part of this action. EPA typically evaluates title V programfee sufficiency separately in its oversight role ofa State permitting authority’s operating permit program through title V program audits.Furthermore, our proposed approval ofRegulation 9 into the Arkansas SIP does notinclude the approval of the underlying title V program into the Arkansas SIP and does notevaluate the title V specific requirements for fees.3The provisions of Regulation 9 refer to Title V permits as Part70 permits. Title V permits are often called Part 70 permits because the regulationsthat establishthe minimum standards for state operating permit programs are found in 40 CFR Part 70.

# B. Part 51, Appendix V Completeness Checklist

The criteria for completeness determination ar e found in Appendix V to Part 51 – Criteria for

determining the completeness of plan submissions and are outlined below:

1.0 Purpose: This appendix V sets forth the mi nimum criteria for determining whether a state

implementation plan submitted for consideration by the EPA is an official submission for

purposes of review under § 51.103.

1.1 The EPA shall return to the submitting official any plan or revision thereof which fails to

meet the criteria set forth in this appendix V, and request corrective action, identifying the

component(s) absent or insufficient to perform a review of the submitted plan.

1.2 The EPA shall inform the submitting official whether or not a plan submission meets the

requirements of this appendix V within 60 days of the EPA’s receipt of the submittal, but

no later than 6 months after the date which the State was required to submit the plan or

revision. If a completeness de termination is not made by 6 months from receipt of a

submittal, the submittal shall be deemed complete by operation of law on the date 6 months

from receipt. A determination of completeness under this paragraph means that the

submission is an official s ubmission for purposes of § 51.103.

The attached checklist outlines the basic crit eria included under 2.1, 2.2, and 2.3 of Appendix V.

# Administrative Materials (2.1)

1. The package is sent with a formal submittal lett er from the Governor or his or her designee

requesting the EPA’s approval of the revision.

The SIP revisions addressed in this action we re submitted via letter from Governor Beebe

dated November 6, 2012.

2. Evidence is included that the State has adopted the revision in the St ate code or body of

regulations, or that the State has issued the permit, order, consent agreement (hereafter

document) in final form. This evidence would in clude the date of adoption or final issuance

and the effective date of revision, if di fferent from the adopt ion/issuance date.

The submitted regulations cont ained in the SIP revision addre ssed in this action were

effective on July 9, 2012.

3. Evidence is included that the St ate has necessary legal author ity under State law to adopt

and implement the revision, e.g., a citati on of the appropriate State authority.

The authority for promulgating changes to the Arkansas State Implem entation is found in

Arkansas Code Annotated (A.C.A.) § 8-1-203(b)(1).

4. A copy is included of the actual regulati on or document submitted for approval and

incorporation by reference into the SIP includin g an indication of the changes made to the

existing approved place where applicable. The submittal shall be a copy of the official

State regulation document signed, stamped, and dated by the appropriate State official

indicating that it is fully enforceable by the St ate. The effective date of the regulation

document shall, whenever possible, be indicated in the document itself.

The SIP submittal included a copy of the official State regulation document.

5. Evidence is included that the State followed all of the procedural requirements of its laws

and/or its constitution in the conducting and completing the adoption/issuance of the plan.

The SIP submittal package included a certifi cation demonstrating the SIP submittal was

developed pursuant to 40 CFR 51.104.

6. Evidence is included that public notice was give n of the proposed chan ges consistent with

the procedures approved by the EPA, including th e date of publication of such notice (e.g.,

# notarized or certified copies of any public no tices published in newspapers). (The notice

should be at least 30 days pr ior to the public hearing(s).

The SIP submittal addressed in this action included a summary of the Public Notices

published for the rule revisions, as well as , copies showing evidence of the published

notices. These public notices included info rmation regarding the public comment period

and upcoming public hearings.

7. A certification is included indicating that pub lic hearing(s) was/were held in accordance

with the information provided in the public not ice(s) and the State’s laws and constitution,

if applicable.

The SIP submittal contained a signed affidavit th at certified that the required procedures

were followed with respect to public noti ce, public hearing, and public participation.

8. A compilation of public comments and the State’s response is included.

The SIP submittal addressed in this action includ ed copies of comments received from the

public on the State regulation, as well as, as the State’s responses to the comments

received.

# Technical Support (2.2)

1. Identification of all regulated polluta nts affected by the revision included.

The SIP submittal addresses revisions to the provisions related to the air permitting

program fees; therefore, the SIP submittals have the potential to address all regulated

pollutants.

2. Identification of the locations of affected sources including the EPA

attainment/nonattainment designation of the loca tions and the status of the attainment plan

for the affected area(s) is included.

The provisions evaluated as part of this action can be applied statewide.

3. Quantifications of the changes in SIP allowa ble emissions from the affected sources is

included. (Examples include estimates of changes in current actual emissions from

affected sources and/or, where appropriate, qua ntification of changes in actual emissions

from affected sources through calculations of the differences between certain baseline

levels and allowable emissions anticipat ed if the revisions were approved.)

Not applicable to this SIP revision. The new re gulation only affects th e fees paid in order

to emit pollutants, but does not affect emi ssion levels directly.

4. Demonstration is included that the NAAQS /PSD increments/RFP demonstration and

visibility as applicable woul d be protected if the revision were approved and implemented.

Not applicable to this SIP revision. This pl an revision does not pe rtain to redesignating

an area to attainment for a national primary ambient air quality standard. Nor does this

revision pertain to prevention of signifi cant deterioration (PSD) increments and

demonstrations of reasonable further progress. The new regulation on ly affects the fees

paid in order to emit pollutants, but doe s not affect emission levels directly.

5. FOR REDESIGNATIONS:

a. Is there a fully approved maintenance pl an for the primary ambient air quality

standards for at least 10 years as requ ired by § 175A of the Clean Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

# 6. Modeling information, if app licable, is required to s upport the proposed revision.

Not applicable.

7. Evidence is included where necessary, that emission limitations are based on continuous

emission reduction technology (e.g., add-on controls, industrial/ process equipment

designs, reformulated materials, etc.).

Not applicable.

8. Evidence is included indicating that a SIP re vision contains emission limitations, work

practice standards and recordk eeping/reporting requirements to ensure stated emission

levels.

Not applicable.

9. Compliance/enforcement strategies including how compliance will be determined in

practice (including at what frequency).

Not applicable.

10. As appropriate, special economic and techno logical justificati ons are included per

applicable EPA policies or an explanation why such justificat ions are not necessary should

be included. For example, requests for altern ative RACT may require such justification.

Not applicable. No special economic and technical justifications are required by other

applicable EPA policies are necessary because no such policies are relevant in this case.

The November 6, 2012 SIP submittal meets the co mpleteness criteria established in 40 CFR

part 51, Appendix V.

# III. Proposed Action

It is recommended that the EPA approve of th e adoption of the repeal and replacement of

Regulation 9 – Fee Regulation submitted Novemb er 6, 2012. See discussion regarding basis for

approval in Sections II of this TSD and in Section III of the Federal Register.

This technical support document has evaluated the revisions to the Arkansas fee program

effective on July 9, 2012, and submitted as a revi sion to the Arkansas SIP on November 6, 2012.

The EPA also evaluated numerous formatting and typographical revisi ons and found those to

improve clarity and readability of the SIP.

It is recommended that the EPA propose approval of the November 6, 2012 revision. Because

these are noncontroversial revisions the EPA should consider a dire ct final approval.

# Appendix A

Chapter 2 definitions that are not being approved into the SIP 4 

# :

“Category” means one type of laboratory test or group of laboratory tests for similar materials or

classes of materials or which utilize similar methods or related methods.

“Certificate” means the annual document showing those parameters for which a laboratory has received

certification. The annual period begins at receipt of fee payments or at the expiration of a current

certificate.

“Confined Animal Operation” means any lot or facility where livestock or fowl have been, are, or will

be stabled or confined and fed or maintained, a nd where crops, vegetation, forage growth, or postharvest residues are not sustained in the normal gr owing season over any significant portion of the lot

or facility.

“Discretionary Major Facility” means an industrial facility discharging wastewater under the terms of a

National Pollutant Discharge Elimination System (NPDES) permit that does not meet the numerical

rating criteria as an NPDES non-municipal major faci lity, but which is designated as a major permittee

by the Department or the U.S. Environmental Protection Agency (EPA). Such facilities are assigned

an Major Rating Code (MRAT) greater than 500.

“Evaluation” means a review of the quality contro l and quality assurance procedures, records keeping,

reporting procedures, methodology, and analytical techniques of a laboratory for measuring or

establishing specific parameters.

"Laboratory" means any facility that performs an alyses to determine the chemical, physical, or

biological properties of air, water, solid waste, ha zardous waste, wastewater, soil or subsoil materials,

or any other analyses related to environmental quality evaluations.

“Major Municipal Facility” means a publicly owned treatment works (POTW) with a design flow or

daily average flow of 1.0 million gallons per day (mgd) or greater, or a POTW designated as a major

facility by the Department or EPA.

“Non-Municipal Major Facility” means a facility subject to the National Pollution Discharge

Elimination System (NPDES) whose status is dete rmined following completion of an NPDES Permit

Rating Worksheet (current version) in which points are allocated on the basis of toxic pollutant

potential, permitted flow or the ratio of wastewater to stream flow volume, conventional pollutants

mass loadings, public health impacts (including pr oximity to drinking water supplies and potential for

human health toxicity), and water quality factors. Additional points can be assessed for certain steam

electric power plants or for separate storm sewers serving a population greater than 100,000. The total

points accumulated is known as the Major Rating Co de or MRAT, which is the numeric total of

ranking points assigned to non-municipal facilities and used to delineate them as a major or minor

facility. Currently, a facility with an MRAT of eighty (80) points or more is designated as a “nonmunicipal major” facility. Additionally, EPA or the Department may designate an NPDES permittee

as a “discretionary major” facility. Once an MRAT for a major facility is calculated and approved by

EPA, the Department may recommend increases or decreases to an MRAT, but only EPA is authorized

to change an individual permittee’s MR AT or designation as a “major” facility.

"Parameter" means the characteristic or characteristics of a laboratory sample determined by an

analytic laboratory testing procedure.

“Program” means the Arkansas State Environmental Laboratory Certification Program.

4 

# Only the portions of Chapter 2 that relate to the Air prog ram as included in the SIP. The definitions to include are

specified in ADEQ letter from Mike Bates to Tracie Donaldson, EPA dated December 11, 2014.