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[Federal Register Volume 60, Number 84 (Tuesday, May 2, 1995)]
[Rules and Regulations]
[Pages 21440-21442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10698]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 42-1-6916a; FRL-5186-7]

Approval and Promulgation of Implementation Plans; Arizona State 
Implementation Plan Revision, Pinal County Air Quality Control 
District; and Section 112(l) Approval of Pinal County Air Quality 
Control District Program for the Issuance of Permits Containing 
Voluntarily Accepted Federally Enforceable Conditions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action on revisions to the 
Arizona State Implementation Plan. The revisions concern synthetic 
minor permit rules from the Pinal County Air Quality Control District 
(Pinal or District). The intended effect of approving these synthetic 
minor regulations is to allow facilities to voluntarily accept 
federally enforceable limits on their potential emissions. This 
approval action will incorporate these rules into the federally 
approved SIP. In order to extend the federal enforceability of 
conditions in permits to hazardous air pollutants (HAP), EPA is also 
approving Pinal's synthetic minor regulations pursuant to section 112 
of the Act.

DATES: This final rule is effective on July 3, 1995 unless adverse or 
critical comments are received by June 1, 1995. If the effective date 
is delayed, a timely notice will be published in the Federal Register.

ADDRESSES: Copies of the rules and EPA's Technical Support Document for 
the synthetic minor program are available for public inspection at the 
following location:

Operating Permits Section (A-5-2), Air and Toxics Division, U.S. 
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
Air Docket (6102), U.S. Environmental Protection Agency, 401 M Street, 
SW., Washington, DC 20460.

    Copies of the submitted rules are also available for inspection at 
the following location:

Pinal County Air Quality Control District, 457 South Central Avenue, 
Florence, Arizona 85232.
Arizona Department of Environmental Quality, 3033 North Central Avenue, 
Phoenix, Arizona 85012.

FOR FURTHER INFORMATION CONTACT: Regina Spindler, Operating Permits 
Section (A-5-2), Air and Toxics Division, U.S. Environmental Protection 
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105, 
Telephone: (415) 744-1251.

SUPPLEMENTARY INFORMATION:

Applicability

    The rules being approved into the Arizona SIP include: Pinal County 
Air Quality Control District (Pinal) Code of Regulations, Chapter 1, 
Article 3, section 1-3-140, Definitions, subsections 5, 15, 21, 32, 33, 
35, 50, 51, 58, 59, 103, and 123; Chapter 3, Article 1, section 3-1-
081, Permit conditions, subsection (A)(8)(a); Chapter 3, Article 1, 
section 3-1-084, Voluntarily Accepted Federally Enforceable Emissions 
Limitations; Applicability; Reopening; Effective Date; and Chapter 3, 
Article 1, section 3-1-107, Public Notice and Participation. These 
rules were submitted by the Arizona Department of Environmental Quality 
to EPA on August 15, 1994 for approval into the State Implementation 
Plan. Pinal submitted these provisions for approval under section 
112(l) on October 25, 1994.

Background

    On June 28, 1989 (54 FR 27274), EPA published criteria for 
approving and incorporating into the SIP regulatory programs for the 
issuance of federally enforceable state operating permits (FESOP). 
Permits issued pursuant to an operating permit program approved into 
the SIP as meeting these criteria may be considered federally 
enforceable. On November 3, 1993, EPA announced in a guidance document 
entitled, ``Approaches to Creating Federally Enforceable Emissions 
Limits,'' signed by John S. Seitz, Director, Office of Air Quality 
Planning and Standards, that this mechanism could be extended to create 
federally enforceable limits for [[Page 21441]] emissions of hazardous 
air pollutants (HAP) if the program were approved pursuant to section 
112(l) of the Act. Approval under section 112(l) is necessary because 
SIP approval extends only to the control of criteria pollutants, i.e., 
those for which primary and secondary ambient air quality standards 
have been established by EPA pursuant to section 109 of the Act.1 
Federally enforceable limits on criteria pollutants may have the 
incidental effect of limiting certain HAP listed pursuant to section 
112(b).2 As a legal matter, no additional program approval by EPA 
is required in order for these criteria pollutant limits to be 
recognized as federally enforceable. However, section 112 of the Act 
provides the underlying authority for controlling all HAP emissions.

    \1\The following are considered criteria pollutants: oxides of 
nitrogen, lead, ozone precursors, sulfur dioxide, carbon monoxide, 
and PM-10.
    \2\See ``Options for Limiting the Potential to Emit of a 
Stationary Source Under Section 112 and Title V of the Clean Air 
Act,'' from John Seitz, dated January 25, 1995. EPA intends to issue 
further technical guidance on ensuring that the ``effect'' of 
limiting HAP is enforceable as a practical matter.
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EPA Evaluation and Action

    The Arizona Department of Environmental Quality submitted Pinal's 
synthetic minor permit program on August 15, 1994 for approval into the 
SIP. The EPA found this submittal to be complete on September 1, 1994. 
Pinal submitted the program for approval under section 112(l) on 
October 25, 1994. Pinal's synthetic minor permit program is based on 
provisions (adopted August 11, 1994) that allow a source to apply 
voluntarily for limits on emissions, production or operation to be 
placed in its permit to limit the source's total potential emissions. 
These provisions are contained within District permitting regulations 
(adopted November 3, 1993) that apply to both major and nonmajor 
sources and that provide for the issuance of integrated construction 
and operating permits. These permit regulations require sources that 
modify or construct to first obtain a permit that contains both 
preconstruction and operating requirements. The regulations also 
require all existing sources to apply for an operating permit. 
Therefore, new, modifying, and existing sources are eligible to obtain 
voluntary limits under Pinal's synthetic minor provisions.
    The voluntary limits established pursuant to Pinal's synthetic 
minor provisions will be specifically designated as federally 
enforceable in the permit. When the permit is issued pursuant to either 
the District's EPA-approved Title V or New Source Review program, the 
entire permit will be federally enforceable, except for those 
requirements that are enforceable only by the District and/or State and 
that Pinal specifically designates as not being federally enforceable. 
When the permit is issued to existing sources pursuant to the 
District's nonmajor source operating permit program, only federal 
applicable requirements and voluntary limits that are designated as 
such pursuant to section 3-1-084 will be federally enforceable since 
the District's nonmajor source operating permit program is not approved 
into the SIP by EPA. Pinal is not seeking to receive approval of its 
program such that all permits issued under the approved program are 
federally enforceable. Rather, Pinal is seeking approval of a rule that 
allows for federally enforceable terms and conditions, accepted 
voluntarily, to be placed in source construction and operating permits. 
The EPA interprets the June 28, 1989 Federal Register notice cited 
above to apply to approval of synthetic minor rules that provide for 
creating distinct federally enforceable limits in permits, as well as 
to approval of synthetic minor rules that provide for the issuance of 
permits that are federally enforceable in their entirety.
    Though Pinal has submitted a number of regulations relating to the 
issuance of permits as a revision to its portion of the Arizona State 
Implementation Plan, today's action extends only to those provisions 
that pertain to the creation of voluntarily accepted federally 
enforceable emission limits. These provisions include section 3-1-084 
which provides for establishing the federally enforceable emission, 
production, and operational limits in the source permit along with 
associated federally enforceable compliance requirements such as 
monitoring, recordkeeping, and reporting requirements. This provision 
also requires review of each permit by EPA as well as an opportunity 
for public comment pursuant to the public participation procedures in 
section 3-1-107. This action also extends to these public participation 
procedures as well as to a number of definitions in section 1-3-140 and 
to the requirement of section 3-1-081(A)(8)(a) that sources comply with 
the terms and conditions of the permit that contains the voluntarily 
accepted federally enforceable conditions. The EPA will take action on 
the remainder of the District's August 15, 1994 submittal at a future 
date.
    The June 28, 1989 Federal Register notice specifies the following 
five approval criteria for approving FESOP programs into the SIP: (1) 
The program must be submitted to and approved by EPA; (2) the program 
must impose a legal obligation on the operating permit holders to 
comply with the terms and conditions of the permit, and permits that do 
not conform with the June 28, 1989 criteria or EPA's underlying 
regulations shall be deemed not federally enforceable; (3) the program 
must contain terms and conditions that are at least as stringent as any 
requirements contained in the SIP, enforceable under the SIP, or any 
section 112 or other CAA requirement, and may not allow for the waiver 
of any CAA requirement; (4) permits issued under the program must 
contain conditions that are permanent, quantifiable, and enforceable as 
a practical matter; and (5) permits that are intended to be federally 
enforceable must be issued subject to public participation and must be 
provided to EPA in proposed form on a timely basis. The June 28, 1989 
notice does not address HAP because it was written prior to the 1990 
amendments to section 112, not because it establishes requirements 
unique to criteria pollutants. Hence, EPA believes that these five 
criteria are also appropriate for evaluating and approving synthetic 
minor permit programs under section 112(l).
    In addition to meeting the criteria in the June 28, 1989 notice, a 
synthetic minor permit program that addresses HAP must meet the 
statutory criteria for approval under section 112(l)(5). Section 112(l) 
allows EPA to approve a program only if it: (1) Contains adequate 
authority to assure compliance with any section 112 standards or 
requirements; (2) provides for adequate resources; (3) provides for an 
expeditious schedule for assuring compliance with section 112 
requirements; and (4) is otherwise likely to satisfy the objectives of 
the Act.
    The EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAP, such as FESOP programs, through amendments to 
Subpart E of Part 63, the regulations promulgated to implement section 
112(l) of the Act. (See 58 FR 62262, November 26, 1993.) The EPA 
currently anticipates that these regulatory criteria, as they apply to 
FESOP programs, will mirror those set forth in the June 28, 1989 
notice. The EPA also anticipates that since FESOP programs approved 
pursuant to section 112(l) prior to the planned Subpart E revisions 
will have been approved as meeting these criteria, further approval 
actions for those programs will not be necessary. The EPA believes it 
has authority under [[Page 21442]] section 112(l) to approve programs 
to limit potential to emit of HAP directly under section 112(l) prior 
to this revision to Subpart E. The EPA is therefore approving Pinal's 
synthetic minor program now so that Pinal may begin to issue federally 
enforceable synthetic minor permits as soon as possible.
    The EPA believes that Pinal's synthetic minor program meets the 
approval criteria specified in the June 28, 1989 Federal Register 
notice and in section 112(l)(5) of the Act. Please refer to the 
Technical Support Document for a thorough analysis of the June 28, 1989 
criteria and the statutory criteria of section 112(l)(5) as applied to 
Pinal's synthetic minor program.
    The EPA has evaluated the submitted rules and has determined that 
they are consistent with the CAA, EPA regulations, and EPA policy. 
Therefore, Pinal County Air Quality Control District Code of 
Regulations Chapter 1, Article 3, section 1-3-140, Definitions, 
subsections 5, 15, 21, 32, 33, 35, 50, 51, 58, 59, 103, and 123; 
Chapter 3, Article 1, section 3-1-081, Permit conditions, subsection 
(A)(8)(a); Chapter 3, Article 1, section 3-1-084, Voluntarily Accepted 
Federally Enforceable Emissions Limitations; Applicability; Reopening; 
Effective Date; and Chapter 3, Article 1, section 3-1-107, Public 
Participation, are being approved under section 110(k)(3) of the CAA as 
meeting the requirements of section 110(a) and Part D and under section 
112(l) of the CAA as meeting the requirements of section 112(l)(5).
    Pinal has already begun to issue permits containing voluntarily 
accepted limits pursuant to the regulations listed above. If the 
District followed its own procedures, each of these permits was subject 
to public notice and prior EPA review. Therefore, EPA will consider all 
voluntarily accepted limits in District permits that were processed in 
a manner consistent with the District regulations being acted upon 
today and the five June 28, 1989 criteria to be federally enforceable 
with the promulgation of this rule provided that any such permits 
containing the voluntarily accepted limits that the District wishes to 
make federally enforceable are submitted to EPA and accompanied by 
documentation that the procedures approved today have been followed. 
The EPA will expeditiously review any individual permits so submitted 
to ensure their conformity to the program requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. Each request for revision to the state implementation plan shall 
be considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    The EPA is publishing this notice without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision and 
section 112(l) submittal should adverse or critical comments be filed. 
This action will be effective July 3, 1995, unless by June 1, 1995, 
adverse or critical comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent notice that will withdraw 
the final action. All public comments received will then be addressed 
in a subsequent final rule based on this action serving as a proposed 
rule. The EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective July 3, 1995.

Regulatory Process

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises and 
government entities with jurisdiction over population of less than 
50,000.
    Application for limits under Pinal's synthetic minor provisions is 
voluntary and therefore this approval under sections 110 and 112 of the 
Act does not create any new requirements. Therefore, because the 
federal SIP-approval and section 112(l) approval does not impose any 
new requirements, I certify that it does not have a significant impact 
on any small entities affected. Moreover, due to the nature of the 
federal-state relationship under the CAA, preparation of a regulatory 
flexibility analysis would constitute federal inquiry into the economic 
reasonableness of state action. The CAA forbids EPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 
U.S. 246, 256-66 (S. Ct. 1976); 42 U.S.C. 7410 (a)(2).
    The OMB has exempted this action from review under Executive Order 
12866.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of Arizona was approved by the Director of the 
Federal Register on July 1, 1982.

    Dated: March 28, 1995.
Felicia Marcus,
Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart D--Arizona

    2. Section 52.120 is amended by adding paragraphs (c)(71) to read 
as follows:

Sec. 52.120  Identification of plan.

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    (c) * * *
    (71) New and amended regulations for the following agencies were 
submitted on August 15, 1994 by the Governor's designee.
    (i) Incorporation by reference.
    (A) Pinal County Air Quality Control District.
    (1) Chapter 1, Article 3, section 1-3-140, subsections 5, 15, 21, 
32, 33, 35, 50, 51, 58, 59, 103, and 123, adopted on November 3, 1993; 
Chapter 3, Article 1, section 3-1-081(A)(8)(a), adopted on November 3, 
1993; Chapter 3, Article 1, section 3-1-084, adopted on August 11, 
1994; and Chapter 3, Article 1, section 3-1-107, adopted on November 3, 
1993.
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[FR Doc. 95-10698 Filed 5-1-95; 8:45 am]
BILLING CODE 6560-50-W
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