Clean Air Act Proposed Interim Approval of the Operating Permits Program; Arizona Department of Environmental Quality, Maricopa County Environmental Services Department, Pima County Department of Environmental Quality, Pinal County Air Quality Control District, Arizona

Federal RegisterJul 13, 1995

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5258-6]

Clean Air Act Proposed Interim Approval of the Operating Permits

Program; Arizona Department of Environmental Quality, Maricopa County

Environmental Services Department, Pima County Department of

Environmental Quality, Pinal County Air Quality Control District,

Arizona

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes interim approval of the title V operating

permits program submitted by the State of Arizona, comprised of

programs from the Arizona Department of Environmental Quality (ADEQ),

the Maricopa County Environmental Services Department, (Maricopa), the

Pima County Department of Environmental Quality (Pima), and the Pinal

County Air Quality Control District (Pinal) for the purpose of

complying with federal requirements that mandate that states develop,

and submit to EPA, programs for issuing operating permits to all major

stationary sources, and to certain other sources.

DATES: Comments on this proposed action must be received in writing by

August 14, 1995.

ADDRESSES: Comments should be addressed to Regina Spindler, Mail Code

A-5-2, U.S. Environmental Protection Agency, Region IX, Air and Toxics

Division, 75 Hawthorne Street, San Francisco, CA 94105.

Copies of the State and county submittals and other supporting

information used in developing the proposed interim approval are

available for inspection during normal business hours at the following

location: U.S. Environmental Protection Agency, Region IX, 75 Hawthorne

Street, San Francisco, CA 94105

FOR FURTHER INFORMATION CONTACT: Regina Spindler (telephone: 415/744-

1251), Mail Code A-5-2, U.S. Environmental Protection Agency, Region

IX, Air and Toxics Division, 75 Hawthorne Street, San Francisco, CA

94105

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

As required under title V of the Clean Air Act (Act) as amended

(1990), EPA has promulgated rules that define the minimum elements of

an approvable state operating permits program and the corresponding

standards and procedures by which EPA will approve, oversee, and

withdraw approval of state operating permits programs (see 57 FR 32250

(July 21, 1992)). These rules are codified at 40 CFR part 70 (part 70).

Title V requires states to develop, and submit to EPA, programs for

issuing these operating permits to all major stationary sources and to

certain other sources.

The Act requires that states develop and submit title V programs to

EPA by November 15, 1993, and that EPA act to approve or disapprove

each program within 1 year after receiving the submittal. The EPA's

program review occurs pursuant to section 502 of the Act and the part

70 regulations, which together outline criteria for approval or

disapproval. Where a program substantially, but not fully, meets the

requirements of part 70, EPA may grant the program interim approval for

a period of up to 2 years. If EPA has not fully approved a program by 2

years after the November 15, 1993 date, or by the end of an interim

program, it must establish and implement a federal program.

II. Proposed Action and Implications

A. Analysis of State Submission

The analysis contained in this notice focuses on specific elements

of the Arizona State and county agencies' title V operating permits

program that must be corrected to meet the minimum requirements of 40

CFR part 70. The full program submittals, the Technical Support

Documents (TSD), which contain a detailed analysis of the submittals,

and other relevant materials are available for inspection as part of

the public dockets. The dockets may be viewed during regular business

hours at the address listed above.

1. Title V Program Support Materials

The Arizona title V operating permits program was submitted on

November 15, 1993 by the Arizona Department of Environmental Quality.

The Director of ADEQ, the State Governor's designee, requested approval

of Arizona's title V operating permits program, comprised of programs

from ADEQ, Maricopa, Pima, and Pinal to provide coverage for the entire

geographic area of the State of Arizona, excluding lands located within

the exterior boundaries of Indian Reservations. Additional material was

submitted by ADEQ on March 14, 1994; May 17, 1994; March 20, 1995; and

May 4, 1995. Additional information was submitted by Maricopa on

December 15, 1993; January 13, 1994; March 9, 1994; and March 21, 1995.

Additional information was submitted by Pima on December 15, 1993;

January 27, 1994; April 6, 1994; and April 8, 1994. On Pinal's behalf,

ADEQ submitted a revision to Pinal's program on August 16, 1994. The

programs that comprise the Arizona program all meet the requirements of

section 70.4 for program submittal, including a program description,

permitting program documentation, the legal opinion of the Attorney

General and the attorneys of the county air pollution control agencies,

and fully adopted implementing and supporting regulations. An

implementation agreement is currently being developed between EPA and

each of the Arizona agencies.

[[Page 36084]]

2. Title V Operating Permit Regulations and Program Implementation

The permitting rules/regulations submitted by the Arizona State and

county agencies are very similar. Therefore, the discussion below is

applicable to all four programs. The ADEQ regulations adopted or

revised on October 8, 1993 to implement title V include Article 1;

Article 3, excluding sections R18-2-311 through R18-2-314, R18-2-316,

and R18-2-332; Article 5; and Appendix 1; of Chapter 2 of Title 18 of

the Arizona Administrative Code (AAC). Maricopa's title V regulations,

adopted or revised on November 15, 1993, include Rules 100, 110, and

120 of Regulation I; Rule 200, except sections 305, 306, 407, and 408,

Rules 210, 230, and 280 of Regulation II; Rule 370 of Regulation III;

Rule 400 of Regulation IV; and Appendix B of the Maricopa Air Pollution

Control Regulations (MAPC Regulations). Pima's title V regulations,

adopted or revised on September 28, 1993 include Chapter 17.04; Chapter

17.12, except sections 17.12.030, 040, 050, 060, 070, 360, Article IV,

and Article V; Article IX of Chapter 17.16; Chapter 17.20; Chapter

17.24; and Chapter 17.28 of Title 17 of the Pima County Code (PCC).

Pinal's title V regulations adopted or revised on November 3, 1993

include Article 3 of Chapter 1; Articles 1, 2, 4, 5, 6, and 7 of

Chapter 3; Article 1 of Chapter 7; Article 1 of Chapter 8; Article 1,

Sections 9-1-070 and 9-1-080 of Chapter 9; and Appendix A of the Pinal

County Code of Regulations (PCR).

The regulations of the Arizona State and county agencies

substantially meet the requirements of 40 CFR part 70, Secs. 70.2 and

70.3 for applicability; Secs. 70.4, 70.5, and 70.6 for permit content,

including operational flexibility; Sec. 70.7 for public participation

and minor permit modifications; Sec. 70.5 for criteria that define

insignificant activities; Sec. 70.5 for complete application forms; and

Sec. 70.11 for enforcement authority. Although the regulations

substantially meet part 70 requirements, there are several deficiencies

in each program that are outlined under section II.B. below as interim

approval issues and further described in the Technical Support

Documents.

The Arizona State and county permitting programs combine the

requirements for operating permits and construction permits. Sources

that modify or construct must first obtain a permit that contains both

preconstruction and operating requirements. Existing sources must apply

for an operating permit. Therefore, there is one set of procedures that

apply to the issuance of these integrated preconstruction/operating

permits. In addition, the programs address permitting requirements for

two classes of permits. ADEQ distinguishes between Class I and Class II

permits, Maricopa and Pima between Title V and non-Title V permits, and

Pinal between Class A and Class B permits. ADEQ's Class I permits and

Maricopa's Title V permits are required only for major sources, acid

rain sources, solid waste incinerators, and any other sources in a

source category designated by EPA to obtain title V permits. Pima

County and Pinal County require major sources, acid rain sources, solid

waste incinerators, any other sources in a source category designated

by EPA, and any sources subject to an NSPS or NESHAP requirement under

sections 111 and 112, respectively (including non-major sources), to

obtain a Title V permit (Pima) or Class A permit (Pinal). This interim

approval addresses only the elements of the Arizona program that

pertain to operating permit program requirements for part 70 sources.

The EPA action under part 70 will not apply to the State and county

operating permit programs for non-part 70 sources or to State and

county preconstruction review programs. This interim approval applies

only to that part of the program that provides for the issuance of

Class I operating permits (in ADEQ), Title V operating permits (in

Maricopa and Pima), and Class A operating permits (in Pinal).

a. Excess Emissions Provisions. ADEQ's regulations (R18-2-310)

provide sources with an affirmative defense to an enforcement action

taken for excess emission violations that occur during startup, shut

down, unavoidable breakdown of process or control equipment, an upset

of operations, or if greater or more extended excess emissions would

result unless scheduled maintenance is performed, provided the source

takes certain steps. Fully approvable part 70 programs may only allow

for an affirmative defense for violations that are the result of an

emergency as defined in Sec. 70.6. Therefore, in order to receive full

approval of its program, ADEQ must limit its excess emissions provision

in R18-2-310 by clarifying that it is not applicable to part 70

sources. Maricopa, Pima, and Pinal did not submit excess emissions

provisions as part of their title V programs, though similar provisions

may exist in county regulations. Because Arizona State law requires

county regulations for permitting sources to be identical to the

regulations developed by ADEQ (see Arizona Revised Statutes (ARS)

section 49-480(B)), EPA expects that, if county regulations contain

such provisions, the county agencies will amend them to conform to ADEQ

regulations, and include the condition that such provisions may not

apply to part 70 sources.

b. Insignificant Activities. Section 70.4(b)(2) requires states to

include in their part 70 programs any criteria used to determine

insignificant activities or emission levels for the purposes of

determining complete applications. Section 70.5(c) states that an

application for a part 70 permit may not omit information needed to

determine the applicability of, or to impose, any applicable

requirement, or to evaluate appropriate fee amounts. Section 70.5(c)

also states that EPA may approve, as part of a state program, a list of

insignificant activities and emissions levels which need not be

included in permit applications. Under part 70, a state must request

and EPA must approve as part of that state's program any activity or

emission level that the state wishes to consider insignificant. Part

70, however, does not establish appropriate emission levels for

insignificant activities, relying instead on a case-by-case

determination of appropriate levels based on the particular

circumstances of part 70 program under review.

ADEQ's definition of ``insignificant activity'' (R18-2-101(54))

includes a list of activities as well as a provision for the Director

to determine, without EPA approval, that other activities are

insignificant. The definition prohibits any activity that is subject to

an applicable requirement from being considered insignificant and

requires all insignificant activities to be listed in the permit

application. ADEQ did not provide EPA with criteria used to develop the

list of activities or with information on the level of emissions of the

listed activities. In addition, ADEQ's definition does not provide for

prior EPA approval of any other (unlisted) activity or emission level

that the Director considers insignificant, as required by part 70.

Therefore, EPA cannot propose full approval of ADEQ's definition as the

basis for determining insignificant activities.

MAPC Regulation II, Rule 200, Section 303.3(c) contains the list of

activities that are exempt from part 70 permitting. The applicants must

list these activities in permit applications but need not provide

emissions data (per Regulation II, Rule 210, Section 301.5(g)).

Maricopa did not provide EPA with criteria used to develop the list of

[[Page 36085]]

activities, information on the level of emissions from the activities,

nor with a demonstration that these activities are not likely to be

subject to an applicable requirement. Therefore, EPA cannot propose

full approval of the list as the basis for determining insignificant

activities.

Pima's regulation (Sec. 17.12.160.E.7) provides that emission units

that do not emit more than 2.4 lbs/day of VOC or 5.5 lbs/day of any

other regulated air pollutant are considered insignificant but must be

listed in the application. The EPA believes, as discussed below, that

these levels are acceptable for defining insignificant activities with

regard to units that emit criteria pollutants, provided no such unit is

subject to an applicable requirement. The EPA believes, however, that

these levels may not be acceptable for units that emit hazardous air

pollutants. Pima did not provide EPA with a demonstration that these

emission levels are insignificant compared to the level of hazardous

air pollutant emissions from units that are required to be permitted

activities nor with a demonstration that these activities are not

likely to be subject to an applicable requirement. Therefore, EPA

cannot propose full approval of these levels as the basis for

determining hazardous air pollutant-emitting insignificant activities.

Pinal's definition of insignificant activities (Sec. 1-3-

140(74)(a)) provides that activities that account for less than 1% of

the source's total existing emissions of criteria air pollutants or

less than 200 pounds per year of regulated air pollutants, whichever is

less, are insignificant. The definition also includes a list of

activities that are considered insignificant regardless of emission

rates. Pinal prohibits activities that are subject to any applicable

requirement from being considered insignificant and all insignificant

activities must be listed in the application. EPA believes that the 200

pound per year emission level is acceptable for defining insignificant

activities for units that emit criteria pollutants, but may not be

adequate for units that emit hazardous air pollutants whose section

112(g) deminimis values are below this level (see discussion below).

Pinal did not provide EPA with a demonstration that this emission level

would be sufficient to define all hazardous air pollutant-emitting

insignificant activities. Neither did Pinal provide EPA with criteria

used to develop its list of insignificant activities or information on

the level of emissions from these activities. Therefore, EPA cannot

propose full approval of Pinal's definition as the basis for

determining insignificant activities.

For other state programs, EPA has proposed to accept, as sufficient

for full approval, emission levels for insignificant activities of 2

tons per year for criteria pollutants and the lesser of 1000 pounds per

year, section 112(g) de minimis levels, or other title I significant

modification levels for HAPs and other toxics (40 CFR 52.21(b)(23)(i)).

The EPA believes that these levels are sufficiently below applicability

thresholds for many applicable requirements to assure that no unit

potentially subject to an applicable requirement is left off a title V

application and are consistent with current permitting thresholds in

Arizona. The EPA is requesting comment on the appropriateness of these

emission levels for determining insignificant activities in Arizona.

This request for comment is not intended to restrict the ability of the

state or county agencies to propose and EPA to approve other emission

levels if the agencies demonstrate that such alternative emission

levels are insignificant compared to the level of emissions from and

types of units that are permitted or subject to applicable

requirements.

c. Definition of Title I Modification. The permitting regulations

for the Arizona State and county agencies do not contain definitions of

``title I modification.'' ADEQ and Pinal, however, have indicated in

their program descriptions and response-to-comments documents that they

do not interpret ``title I modification'' to include changes reviewed

under a minor source preconstruction review program (``minor NSR

changes''). Maricopa did not address its interpretation of this term

and Pima has stated, in a letter from David M. Esposito, Director of

the Pima County Department of Environmental Quality, dated April 6,

1994, that Pima considers permit revisions requested by minor sources

subject to preconstruction review requirements to be modifications

under title I of the Act.

In an August 29, 1994 rulemaking proposal, EPA explained its view

that the better reading of ``title I modifications'' includes minor

NSR. However, the Agency solicited public comment on whether the phrase

should be interpreted to mean literally any change at a source that

would trigger permitting authority review under regulations approved or

promulgated under Title I of the Act. (59 FR 44572, 44573). This would

include State preconstruction review programs approved by EPA as part

of the State Implementation Plan under section 110(a)(2)(C) of the

Clean Air Act.

The August 29, 1994 action proposed to, among other things, allow

State programs with a more narrow definition of ``title I

modifications'' to receive interim approval (59 FR 44572). The Agency

stated that if, after considering the public comments, it continued to

believe that the phrase ``title I modifications'' should be interpreted

as including minor NSR changes, it would revise the interim approval

criteria as needed to allow states with a narrower definition to be

eligible for interim approval.

The EPA has not yet taken final action on the August 29, 1994

proposal. However, in response to public comment on that proposal, the

Agency has concluded that the definition of ``title I modifications''

is best interpreted as not including changes reviewed under minor NSR

programs or changes that trigger the application of a pre-1990 NESHAP

requirement. This decision was noted in a June 20, 1995 letter from

Mary D. Nichols, EPA Assistant Administrator for Air and Radiation, to

Congressman John D. Dingell, and will be included in a supplemental

rulemaking proposal that will be published this summer. Thus, the ADEQ,

Maricopa, and Pinal programs' definition of ``title I modification''

can be considered fully consistent with part 70. Because nothing in

part 70 bars a State from considering minor NSR to be a title I

modification, Pima's intent to consider permit revisions requested by

minor sources subject to preconstruction review requirements to be

title I modifications is also fully consistent with part 70.

d. Conditional Orders. ADEQ has authority under ARS sections 49-437

through 49-441 to a grant a conditional order that allows a source to

vary from any provision of ARS Title 49, Chapter 3, Article 2, any rule

adopted pursuant to Article 2, or any requirement of a permit issued

pursuant to Article 2. The county agencies also have authority, under

ARS sections 49-491 through 49-495, to grant conditional orders to vary

from rules and permit conditions.

The EPA regards these State and county conditional order provisions

as wholly external to the program submitted for approval under part 70,

and consequently is proposing to take no action on these provisions of

State law. The EPA has no authority to approve provisions of state law,

such as the conditional order provisions referred to, that are

inconsistent with the Act. The EPA does not recognize the ability of a

permitting authority to grant relief from the duty to comply with a

[[Page 36086]]

federally enforceable part 70 permit, except where such relief is

granted through procedures allowed by part 70. A part 70 permit may be

issued or revised (consistent with part 70 permitting procedures), to

incorporate those terms of a conditional order that are consistent with

applicable requirements. A part 70 permit may also incorporate, via

part 70 permit issuance or modification procedures, the schedule of

compliance set forth in a conditional order. However, EPA reserves the

right to pursue enforcement of applicable requirements notwithstanding

the existence of a compliance schedule in a permit to operate. This is

consistent with 40 CFR 70.5(c)(8)(iii)(C), which states that a schedule

of compliance ``shall be supplemental to, and shall not sanction

noncompliance with, the applicable requirements on which it is based.''

The State and county agencies in Arizona have limited the

conditional order provisions in the State statute through regulation.

ADEQ regulations (R18-2-328(A)) provide that a conditional order may be

granted only for non-federally enforceable conditions of a permit and

that issuance of the conditional order may not constitute a violation

of the Act. Maricopa (Rule 120, Section 401) and Pima (Section

17.28.100(A)) limit issuance of conditional orders in the same way and

in addition state that the Control Officer may only grant a conditional

order if she/he finds that the source is not a title V source. Pinal

(section 3-4-420(A)) provides that no person holding a part 70 permit

shall be eligible for a conditional order; however, Pinal must also

ensure that the Control Officer may not grant a conditional order that

allows a source to vary from the requirement to obtain a part 70

permit. This is listed below in Section II.B. as an interim approval

issue for Pinal. While provisions of the State and county rules

sufficiently limit issuance of conditional orders (with the exception

noted for Pinal), there are additional changes that should be made to

the rules. As discussed above, no conditional orders will be issued

that allow a source to vary from federally enforceable conditions of a

permit, and in the counties, conditional orders will not be issued to

title V sources. Therefore, there is no need to submit conditional

orders to EPA for review, as provided for in the State and county

(except Pima) regulations (ADEQ: R18-2-328(E)(5)(b), Maricopa: Rule

120, Section 405.5(b), Pinal: Section 3-4-450(D)(2)). The EPA

recommends removing these provisions.

e. ``Prompt'' Reporting of Deviations. The part 70 operating

permits regulation requires prompt reporting of deviations from permit

requirements. Section 70.6(a)(3)(iii)(B) requires the permitting

authority to define prompt in relation to the degree and type of

deviation likely to occur and the applicable requirements. Although

state and county permit program regulations should define prompt for

purposes of administrative efficiency and clarity, an acceptable

alternative is to define prompt in each individual permit. The EPA

believes that prompt should generally be defined as requiring reporting

within two to ten days of the deviation. Two to ten days is sufficient

time in most cases to protect public health and safety as well as to

provide a forewarning of potential problems. For sources with a low

level of excess emissions, a longer time period may be acceptable.

However, prompt reporting must be more frequent than the semiannual

reporting requirement, given this is a distinct reporting obligation

under Sec. 70.6(a)(3)(iii)(A). Where ``prompt'' is defined in the

individual permit but not in the program regulations, EPA may veto

permits that do not require sufficiently prompt reporting of

deviations. Maricopa, Pima, and Pinal have not defined ``prompt'' in

their programs with respect to reporting of deviations. ADEQ has

defined ``prompt'' as within 2 working days of the time when the

deviation occurred (R18-2-306(A)(5)(b)).

f. Off-Permit Provisions. The Arizona agencies have chosen to

combine the requirements for operational flexibility as provided for in

Sec. 70.4(b)(12) and off-permit processing of changes as provided for

in Sec. 70.4(b)(14) such that one set of provisions in the State and

county permitting regulations governs both procedures. (See AAC

Sec. R18-2-317, MAPC Regulation II, Rule 210, Sec. 403, PCC

Sec. 17.12.230, PCR Sec. 3-2-180.) While the regulations are not

structured exactly as in part 70, EPA finds that these provisions

satisfy the requirements of both Sec. 70.4(b)(12) and Sec. 70.4(b)(14).

3. Legislative Criminal Enforcement Provisions

Two provisions of Arizona's criminal enforcement authorities

initially caused some concern with EPA reviewers. The first of these is

the affirmative defense contained in A.R.S. Sec. 49-464(Q) and Sec. 49-

514(P), which applies only to violations of emissions and opacity

limits. This section provides an affirmative defense to a criminal

prosecution if the violation is reported within 24 hours, and followed

with a written notification within 72 hours which confirms the

violation and identifies the corrective measures taken to control and

minimize emissions until compliance is achieved. While the requisite

intent for a criminal prosecution would usually be lacking in such an

instance, EPA was concerned that a situation could arise where the

provision could be used to avoid prosecution for an intentional

violation.

In response to EPA's concerns, the Arizona Attorney General's

office has explained that this provision has no impact on the Attorney

General's ability to prosecute violations of any other requirement and

that in appropriate instances violators will be charged with

alternative violations under the statute. The Attorney General's office

has also pointed out that under the State's enforcement policy an order

of abatement would be issued following receipt of notification under

Sec. 49-464(D), meaning that a repeat violation would not be protected

by the affirmative defense. See letter dated May 4, 1995 from David W.

Ronald, Chief, Environmental Crimes Unit, Arizona Attorney General's

Office, to Carol M. Browner, Administrator, EPA.

EPA's second concern was that Arizona's criminal penalty provisions

are not precisely the same as those specified in Sec. 70.11. Rather

than the $10,000 per day per violation set forth in

Sec. 70.11(a)(3)(ii) and (iii), the Arizona Attorney General may seek

$1,000,000 per offense against an enterprise, and $150,000 per offense

against an individual. However, EPA believes that the maximum penalties

which could be obtained in a state criminal prosecution would be

roughly equivalent to those available under federal law.

Each of these concerns has been resolved to EPA's satisfaction and

will not affect EPA's approval of the program. EPA notes that Arizona,

in addition to authority for criminal fines, has authority to seek

prison terms for criminal violations of permit terms, an authority not

required under Sec. 70.11. In light of this, and in light of the

limited nature of the affirmative defense provided in Sec. 49-464(D),

EPA believes that Arizona's criminal enforcement authority is

substantially equivalent to that required by Sec. 70.11. In addition,

EPA will monitor each of these issues and may revisit them in the

future if actual criminal practice under the program does not reflect

the resolutions discussed above.

4. Permit Fee Demonstration

Section 502(b)(3) of the Act requires that each permitting

authority collect

[[Page 36087]]

fees sufficient to cover all reasonable direct and indirect costs

required to develop and administer its title V operating permits

program. Each title V program submittal must contain either a detailed

demonstration of fee adequacy or a demonstration that aggregate fees

collected from title V sources meet or exceed $25 per ton per year

(adjusted annually based on the Consumer Price Index (CPI), relative to

1989 CPI). The $25 per ton amount is presumed, for program approval, to

be sufficient to cover all reasonable program costs and is thus

referred to as the ``presumptive minimum,'' (Sec. 70.9(b)(2)(i)).

ADEQ, Maricopa, Pima, and Pinal have all adopted fee rules that

require sources to pay annual fees that result in collection of an

amount that is above the CPI-adjusted presumptive minimum value.

Effective January 1, 1994, ADEQ charges each title V source an annual

emission-based fee of $33.00 per ton. This rate will be adjusted each

year on January 1 to reflect the increase by which the CPI for the most

recent year exceeds the CPI for 1989. Maricopa requires each title V

source to pay an annual emission fee equal to $31.00 per ton, adjusted

each year, beginning January 1, 1995, to reflect the increase by which

the CPI for the most recent year exceeds the CPI for 1993. Pima charges

title V sources an annual emission fee of $33.00 per ton adjusted

annually relative to the 1993 CPI. Pinal requires title V sources to

pay annual base, emission, and inspection fees that together amount to

$33.94 per ton. These fees will be adjusted each year based on a cost

accounting analysis or on the change in the CPI. The Arizona State and

county agencies charge additional application fees, inspection fees,

permit revision processing fees, fees applicable to certain activities

and operation of specific pieces of equipment, and fees representing

actual cost of services. ADEQ estimates total annual revenues of $3.4

million. Maricopa estimates total annual revenues of $2.7 million. Pima

estimates annual title V revenues of $400,000. Pinal's annual revenue

from title V sources will be $233,000. The State and county agencies

developed their fee rules based on a workload analysis and cost

estimation. For additional information, see the TSD for each agency.

5. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority and Commitments for section 112 Implementation. The

Arizona State and county agencies have demonstrated in their title V

program submittals adequate legal authority to implement and enforce

all section 112 applicable requirements through the title V permit.

This legal authority is contained in the State of Arizona enabling

legislation and in regulatory provisions defining ``applicable

requirements'' and requiring each permit to include limitations that

assure compliance with all such applicable requirements. The Arizona

agencies have supplemented this legal authority with a commitment in

their submitted programs to adopt any future standards and regulations

related to section 112 in a timely manner as they are promulgated by

EPA. The EPA regards this commitment as an acknowledgement by the

Arizona agencies of their obligation to obtain further regulatory

authority as needed to issue permits that implement and enforce the

requirements of section 112. The EPA has determined that the Arizona

agencies' legal authority and commitments are sufficient to allow these

agencies to issue permits that assure compliance with all section 112

requirements. For further discussion, please refer to the Technical

Support Documents accompanying this action and the April 13, 1993

guidance memorandum entitled ``Title V Program Approval Criteria for

section 112 Activities,'' signed by John Seitz.

b. Implementation of Section 112(g). The EPA has published an

interpretive notice in the Federal Register regarding section 112(g) of

the Act (60 FR 8333; February 14, 1995). The interpretive notice

explains that EPA is considering whether the effective date of section

112(g) should be delayed beyond the date of promulgation of the federal

rule so as to allow states time to adopt rules implementing the federal

rule, and that EPA will provide for any such additional delay in the

final section 112(g) rulemaking. Unless and until EPA provides for such

an additional postponement of section 112(g), ADEQ, Maricopa, Pima, and

Pinal must be able to implement section 112(g) during the period

between promulgation of the federal section 112(g) rule and adoption of

implementing State and county regulations.

Implementation of section 112(g) during this transition period

requires that the State and county agencies have an available mechanism

for establishing federally enforceable HAP emission limits or other

conditions from the effective date of the section 112(g) rule until the

State and county agencies adopt rules specifically designed to

implement section 112(g). ADEQ, Maricopa, Pima, and Pinal require that

any source that modifies must obtain a permit or permit revision prior

to commencing construction. All of the Arizona agency programs are

integrated programs; that is, the permit that is issued to a new or

modifying source prior to its construction will contain all

preconstruction review requirements and all operating requirements.

Integrated (preconstruction/operating) permits issued to major sources

must meet all procedural requirements of part 70, including public and

EPA review, and are therefore part 70 permits. In Arizona, sources

subject to section 112(g) (new or modified major sources of hazardous

air pollutants) will be issued a part 70 permit prior to construction.

The source will then have federally enforceable limits on HAP emissions

in compliance with section 112(g). Once EPA promulgates a final 112(g)

rule, ADEQ, Maricopa, Pima, and Pinal will act expeditiously to adopt

regulations consistent with the 112(g) regulations.

c. Authority and Commitments for Title IV Implementation. ADEQ

committed in a letter from Ed Fox, Director, dated March 14, 1994 to

acquire by January 1, 1995 the necessary regulatory authority to

administer an acid rain program and to make regulatory revisions as

necessary to accommodate federal revisions and additions. On August 1,

1994, ADEQ adopted 40 CFR part 72 by reference into AAC R18-2-333.

Maricopa made a similar commitment in a letter from Louis A. Schmitt,

Control Officer, dated March 9, 1994. Maricopa adopted 40 CFR part 72

by reference into MAPC Regulation III, Rule 371 on February 15, 1995.

David M. Esposito, Director for Pima submitted an acid rain commitment

letter on January 27, 1994. Pima has begun its rulemaking process and

expects to complete adoption of part 72 by October, 1995. Pinal has

adopted the part 72 acid rain regulations by reference into PCR Chapter

3, Article 6 and also included in its program description a commitment

to submit any additional required information by January 1, 1995.

B. Proposed Interim Approval and Implications

The EPA is proposing to grant interim approval to the operating

permits programs submitted by ADEQ on the behalf of itself, Maricopa,

Pima, and Pinal on November 15, 1993 and supplemented by ADEQ on March

14, 1994; May 17, 1994; March 20, 1995; and May 4, 1995; by Maricopa on

December 15, 1993; January 13, 1994; March 9, 1994; and March 21, 1995;

by Pima on December 15, 1993; January 27, 1994; April 6, 1994; and

April 8, 1994; and by ADEQ on Pinal's behalf on

[[Page 36088]]

August 16, 1994. If EPA were to finalize the proposed interim

approvals, they would extend for two years following the effective date

of final interim approval, and could not be renewed. During the interim

approval period, ADEQ, Maricopa, Pima, and Pinal would be protected

from sanctions, and EPA would not be obligated to promulgate,

administer and enforce a federal permits program for the State or

counties. Permits issued under a program with interim approval have

full standing with respect to part 70, and the 1-year time period for

submittal of permit applications by subject sources begins upon the

effective date of interim approval, as does the 3-year time period for

processing the initial permit applications.

Following final interim approval, if the State or county agencies

failed to submit a complete corrective program for full approval by the

date 6 months before expiration of the interim approval, EPA would

start an 18-month clock for mandatory sanctions. If the State or

counties then failed to submit a corrective program that EPA found

complete before the expiration of that 18-month period, EPA would be

required to apply one of the sanctions in section 179(b) of the Act,

which would remain in effect until EPA determined that the State or

counties had corrected the deficiency by submitting a complete

corrective program. Moreover, if the Administrator found a lack of good

faith on the part of the State or counties, both sanctions under

section 179(b) would apply after the expiration of the 18-month period

until the Administrator determined that the State or counties had come

into compliance. In any case, if, six months after application of the

first sanction, the State or counties still had not submitted a

corrective program that EPA found complete, a second sanction would be

required.

If, following final interim approval, EPA were to disapprove the

State or counties complete corrective program, EPA would be required to

apply one of the section 179(b) sanctions on the date 18 months after

the effective date of the disapproval, unless prior to that date the

State or counties had submitted a revised program and EPA had

determined that it corrected the deficiencies that prompted the

disapproval. Moreover, if the Administrator found a lack of good faith

on the part of the State or counties, both sanctions under section

179(b) would apply after the expiration of the 18-month period until

the Administrator determined that the State or counties had come into

compliance. In all cases, if, six months after EPA applied the first

sanction, the State or counties had not submitted a revised program

that EPA had determined corrected the deficiencies that prompted

disapproval, a second sanction would be required.

In addition, discretionary sanctions may be applied where warranted

any time after the end of an interim approval period if a state or

county has not timely submitted a complete corrective program or EPA

has disapproved a submitted corrective program. Moreover, if EPA has

not granted full approval to a state or county program by the

expiration of an interim approval and that expiration occurs after

November 15, 1995, EPA must promulgate, administer and enforce a

federal permits program for that state or county upon interim approval

expiration.

1. Title V Operating Permits Program

a. Arizona Department of Environmental Quality. If EPA finalizes

this interim approval, ADEQ must make the following changes, or changes

that have the same effect, to receive full approval:

(1) AAC R18-2-101(54) contains ADEQ's definition of ``Insignificant

activity.'' It includes a list of activities as well as a provision

that the Director may determine, without EPA approval, other activities

to be insignificant (Director's discretion). To receive full approval,

ADEQ must delete section R18-2-101(54)(j), the Director's discretion

provision, and provide a demonstration that the activities listed in

R18-2-101(54)(a-i) are truly insignificant. Alternatively, ADEQ may

restrict the exemptions to activities that emit less than ADEQ-

established emission levels and retain the provision that activities

that are subject to an applicable requirement shall not be considered

insignificant. ADEQ should establish separate emission levels for HAPs

and for other regulated pollutants and demonstrate that these emission

levels are insignificant compared to the level of emissions from and

type of units that are required to be permitted or subject to

applicable requirements. (Sec. 70.5(c), Sec. 70.4(b)(2))

(2) Revise AAC R18-2-101(61) to require that all fugitive emissions

of hazardous air pollutants at a source be considered in determining

whether the source is major for purposes of section 112 of the CAA.

(3) Revise AAC R18-2-304(C) to include an application deadline for

existing sources that become subject to obtaining a Class I permit

after the initial phase-in of the program. One example is a synthetic

minor source that is not initially required to obtain a Class I permit

but later removes federally enforceable limits on its potential

emissions such that it becomes a major source, but is not required to

go through the preconstruction review process. This application

deadline must be 12 months from when the source becomes subject to the

program (meets Class I permit applicability criteria).

(Sec. 70.5(a)(1)(i))

(4) Section 70.6(a)(8) requires that title V permits contain a

provision that ``no permit revision shall be required under any

approved economic incentives, marketable permits, emissions trading and

other similar programs or processes for changes that are provided for

in the permit.'' AAC R18-2-306(A)(10) includes this exact provision but

also includes a sentence that negates this provision. ADEQ must either

delete the negating sentence:

This provision shall not apply to emissions trading between

sources as provided in the applicable implementation plan.

or revise this sentence as follows:

This provision shall not apply to emissions trading between

sources [as provided] if such trading is prohibited in the

applicable implementation plan.

(Sec. 70.6(a)(8))

(5) Section 70.4(b)(12) provides that sources are allowed to make

changes within a permitted facility without requiring a permit

revision, if the changes are not modifications under any provision of

title I of the Act and the changes do not exceed the emissions

allowable under the permit. Specifically, Sec. 70.4(b)(12)(iii)

provides that if a permit applicant requests it, the permitting

authority shall issue a permit allowing for the trading of emissions

increases and decreases in the permitted facility solely for the

purpose of complying with a federally-enforceable emissions cap,

established in the permit independent of otherwise applicable

requirements. AAC R18-2-306(A)(14) provides for such permit conditions

but does not restrict the allowable changes to those that are not

modifications under title I of the Act and those that do not exceed the

emissions allowable under the permit. ADEQ must revise AAC R18-2-

306(A)(14) to clarify that changes made under this provision may not be

modifications under any provision of title I of the Act and may not

exceed emissions allowable under the permit.

(6) Revise AAC R18-2-310 to clarify that this provision does not

apply to part 70 sources. This provision provides sources with an

affirmative defense to an enforcement action taken for excess emissions

violations that occur during

[[Page 36089]]

startup, shutdown, unavoidable breakdown of process or control

equipment, an upset of operations, or if greater or more extended

excess emissions would result unless scheduled maintenance is

performed, provided the source takes certain steps. Fully approvable

part 70 programs may only allow for an affirmative defense for

violations which are the result of an emergency as defined in

Sec. 70.6.

(7) Revise AAC R18-2-322 to include a provision that if a timely

and complete application for a permit renewal is submitted then one of

the following will occur (Sec. 70.4(b)(10)):

(a) The permit shall not expire until the renewal permit has been

issued or denied; or

(b) All terms and conditions of the permit shall remain in effect

until the renewal permit has been issued or denied.

(8) Revise AAC R18-2-330(C) to include a provision for giving

public notice ``by other means if necessary to assure adequate notice

to the affected public.'' (Sec. 70.7(h)(1))

(9) As discussed in II.A.3. above, A.R.S. Sec. 49-464(Q) and

Sec. 49-514(P) provide an affirmative defense to a criminal prosecution

for violations of emission and opacity limits if the violation is

promptly reported and corrective measures are taken to control and

minimize emissions until compliance is achieved. So that ADEQ may

charge violators with alternative violations in appropriate instances

as discussed in II.A.3., it must revise the definition of ``Material

Permit Condition'' in AAC R18-2-331 as follows:

(a) Revise R18-2-331(A)(1) to provide that ``the condition is in a

permit or permit revision issued by the Director or the Control Officer

after the effective date of this Section.''

(b) Delete the requirement in R18-2-331(A)(2) that the condition

must be identified within the permit as a material permit condition.

condition includes a ``requirement for the installation, operation,

maintenance, or certification of a monitoring device.''

(d) Revise R18-2-331(A)(3)(e) to provide that a material permit

condition includes a ``requirement for the operation or maintenance of

air pollution control equipment.''

(e) Revise R18-2-331(A)(3) to include the following:

i. A requirement for or prohibition on the use of a particular fuel

or fuels, including a requirement for fuel consumption;

ii. A requirement to meet an operational limit, including, but not

limited to, hours of operation, throughput, production rates, or limits

or specifications for raw materials;

iii. A requirement to comply with a work practice standard that is

intended to reduce emissions (e.g., covering solvents, wetting unpaved

roads).

(10) Revise AAC R18-2-331(A)(3) to include fee and filing

requirements in the definition of ``Material Permit Condition.''

Section 70.11(a)(3)(ii) requires that criminal fines shall be

recoverable against any person who knowingly violates any fee or filing

requirement. A.R.S. Sec. 464(L)(3) provides for criminal enforcement of

a violation of fee or filing requirements due to criminal negligence

only. A.R.S. Sec. 464(G) provides for criminal enforcement of a knowing

violation of a ``material permit condition'' as defined by the Director

by rule. Thus, defining ``Material Permit Condition'' to include fee

and filing requirements will give ADEQ the authority to bring criminal

charges for knowing violations of fee and filing requirements.

(11) Revise AAC R18-2-504, which contains public notice procedures

for the issuance of general permits, to include requirements that ADEQ

shall:

(a) Provide notice by other means if necessary to assure adequate

notice to the affected public. (Sec. 70.7(h)(1))

(b) Provide notice of any public hearing, including the time and

place of the hearing, at least 30 days in advance of the hearing.

(Sec. 70.7(h)(4))

issues raised during the public participation process.

(Sec. 70.7(h)(5))

(d) Provide a copy of the final general permit to EPA.

(Sec. 70.8(a)(1))

b. Maricopa County Environmental Management and Transportation

Agency, Division of Air Pollution Control. If EPA finalizes this

interim approval, Maricopa must make the following changes, or changes

that have the same effect, to receive full approval:

(1) Delete the following language from MAPC Regulation I, Rule 100,

section 224:

Properties shall not be considered contiguous if they are

connected only by property upon which is located equipment utilized

solely in transmission of electrical energy.

This language, which is part of the definition of a stationary source,

is not consistent with the stationary source definition in Sec. 70.2.

(2) Revise MAPC Regulation I, Rule 100, Sec. 251.2 to clarify that

fugitive emissions of hazardous air pollutants must be considered in

determining whether the source is major for purposes of both the 10 ton

per year and 25 ton per year major source thresholds. The phrase

``including any major source of fugitive emissions'' in the submitted

Sec. 251.2 appears to modify only the 25 ton per year threshold. This

phrase could also imply that fugitives are included in the potential to

emit determination only if the source emits major amounts of fugitive

emissions. The EPA expects, however, that Maricopa will implement this

provision consistent with the EPA policy that all fugitive emissions of

hazardous air pollutants at a source must be considered in determining

whether the source is major for purposes of section 112 of the CAA.

(3) A.R.S. Sec. 49-514(G) provides for criminal enforcement of a

knowing violation of a ``material permit condition'' as defined by the

Director of ADEQ by rule. Maricopa is therefore required to use ADEQ's

definition of ``Material Permit Condition.'' For this reason and the

reasons discussed above in II.A.3. and II.B.1.a.(9), revise MAPC

Regulation I, Rule 100, section 253 in the same way as required for

ADEQ in II.B.1.a.(9).

(4) For the same reasons discussed above in II.A.B.1.a.(10) and

II.A.B.1.b.(3), revise MAPC Regulation I, Rule 100, section 253.1(c) to

include fee and filing requirements in the definition of ``Material

Permit Condition.'' Section 70.11(a)(3)(ii) requires that criminal

fines shall be recoverable against any person who knowingly violates

any fee or filing requirement. A.R.S. Sec. 514(L)(3) provides for

criminal enforcement of a violation of fee or filing requirements due

to criminal negligence only. A.R.S. Sec. 514(G) provides for criminal

enforcement of a knowing violation of a ``material permit condition''

as defined by the Director by rule. Thus, defining ``Material Permit

Condition'' to include fee and filing requirements will give Maricopa

the authority to bring criminal charges for knowing violations of fee

and filing requirements.

(5) Revise MAPC Regulation I, Rule 100, section 505 to clarify that

for Title V sources, records of all required monitoring data and

support information must be retained for a period of five years, as

provided in Regulation II, Rule 210, section 302.1(d)(2).

(Sec. 70.6(a)(3)(ii)(B))

(6) Revise MAPC Regulation I, Rule 100, section 506 to clarify that

for Title V sources, all permits, including all elements of permit

content specified in Rule 210, section 302, shall be available to the

public, as provided in Regulation

[[Page 36090]]

II, Rule 200, section 411.1. (Sec. 70.4(b)(3)(viii))

(7) Revise MAPC Regulation II, Rule 200, section 312.2 to define

when sources become ``subject to the requirements of Title V.'' A

source becomes subject to the requirements of title V on the date that

EPA approves the County's program and when the source meets the

applicability requirements as provided in section 302 of Rule 200. In

addition, revise section 312.5 to require that existing sources that do

not hold a valid installation or operating permit must submit an

application within 12 months of becoming subject to the requirements of

title V.

(8) Revise MAPC Regulation II, Rule 200, section 403 to include a

provision that if a timely and complete application for a permit

renewal is submitted then one of the following will occur

(Sec. 70.4(b)(10)):

(a) The permit shall not expire until the renewal permit has been

issued or denied; or

(b) All terms and conditions of the permit shall remain in effect

until the renewal permit has been issued or denied.

(9) MAPC Regulation II, Rule 200, section 303.3(c) contains the

list of activities that are exempt from part 70 permitting. The

applicants must list these activities in permit applications but need

not provide emissions data (per Regulation II, Rule 210, section

301.5(g)). To receive full approval Maricopa must provide a

demonstration that the activities listed in Rule 200, Section 303.3(c)

are truly insignificant and are not likely to be subject to an

applicable requirement. Alternatively, Maricopa may restrict the

exemptions to activities that are not likely to be subject to an

applicable requirement and that emit less than County-established

emission levels. Maricopa should establish separate emission levels for

HAPs and for other regulated pollutants and demonstrate that these

emission levels are insignificant compared to the level of emissions

from and type of units that are required to be permitted or subject to

applicable requirements. (Sec. 70.5(c), Sec. 70.4(b)(2))

(10) For the reason explained above in II.B.1.a.(4), revise MAPC

Regulation II, Rule 210, Section 302.1(j) by either deleting the

following sentence:

This provision shall not apply to emissions trading between

sources as provided in the applicable implementation plan.

or by revising this sentence as follows:

This provision shall not apply to emissions trading between

sources if such trading is prohibited in the applicable

implementation plan.

(Sec. 70.6(a)(8))

(11) For the reason explained above in II.B.1.a.(5), revise MAPC

Regulation II, Rule 210, Section 302.1(n) to clarify that changes made

under this provision may not be modifications under any provision of

title I of the Act and may not exceed emissions allowable under the

permit. In addition, revise this provision to require the notice

required by sections 403.4 and 403.5 to also describe how the increases

and decreases in emissions will comply with the terms and conditions of

the permit. (Sec. 70.4(b)(12))

(12) Delete the provision of MAPC Regulation II, Rule 210, section

404.1(e) that provides for equipment removal that does not result in an

increase in emissions to be processed as an administrative permit

amendment. Removal of certain equipment, even if it does not result in

an increase in emissions, may require processing as a significant

permit revision. One example is removal of monitoring equipment, which

part 70 clearly requires to be processed as a significant permit

revision. (Sec. 70.7(d), Sec. 70.7(e)(4))

(13) Delete the following language from the criteria for minor

permit revisions in MAPC Regulation I, Rule 210, section 405.1(c):

* * * other than a determination of RACT pursuant to Rule 241,

Section 302 of these rules, * * *

This language is included in the rule as an exception to the

prohibition against allowing case-by-case determinations to be

processed as minor permit revisions. The definition of RACT in section

272 of Rule 100 states that ``RACT for a particular facility, other

than a facility subject to Regulation III, is determined on a case-by-

case basis * * *'' Rule 241 is not in Regulation III, so RACT

determinations made pursuant to this rule are done so on a case-by-case

basis. Excepting RACT determinations from the prohibition against

processing case-by-case determinations through the minor permit

revision process violates the requirement of section

70.7(e)(2)(i)(A)(3).

(14) Revise Regulation II, Rule 210, Section 408 to include a

provision for giving public notice ``by other means if necessary to

assure adequate notice to the affected public.'' (Sec. 70.7(h)(1))

(15) Revise MAPC Regulation II, Rule 230, Section 304, which

contains public notice procedures for the issuance of general permits,

to include requirements that Maricopa shall:

(a) Provide notice by other means if necessary to assure adequate

notice to the affected public. (Sec. 70.7(h)(1))

(b) Provide notice of any public hearing, including the time and

place of the hearing, at least 30 days in advance of the hearing.

(Sec. 70.7(h)(4))

issues raised during the public participation process.

(Sec. 70.7(h)(5))

(d) Provide a copy of the final general permit to EPA.

(Sec. 70.8(a)(1))

c. Pima County Department of Environmental Quality. If EPA

finalizes this interim approval, Pima must make the following changes,

or changes that have the same effect, to receive full approval:

(1) Revise PCC Sec. 17.04.340(133)(b)(i), the definition of major

source, to clarify that fugitive emissions of hazardous air pollutants

must be considered in determining whether the source is major for

purposes of both the 10 ton per year and 25 ton per year major source

thresholds. The current definition appears to require inclusion of

fugitive emissions only when determining applicability according to the

10 ton per year major source threshold.

(2) Revise PCC Sec. 17.12.150(B) and Sec. 17.12.150(G)(1) to

clarify when a source becomes subject to obtaining title V permits. A

source becomes subject to obtaining a title V permit on the date that

EPA approves the County's program and when the source meets the

applicability requirements as provided in Sec. 17.12.140(B)(1).

(3) PCC Sec. 17.12.160(E)(7) contains emission levels that define

which emission units are exempt from part 70 permitting. The applicants

must list activities that emit below these levels in the permit

applications but need not provide detailed information or data

regarding these units. To receive full approval, Pima must demonstrate

that these emission levels are insignificant compared to the level of

hazardous air pollutant emissions from units that are required to be

permitted or subject to applicable requirements or establish separate

insignificant emission levels for HAPs and use the current emission

levels in Sec. 17.12.160(E)(7) to define insignificant activities for

criteria pollutant-emitting units only. Pima must also restrict the

exemptions to activities that are not likely to be subject to an

applicable requirement . (See discussion in II.A.2.b. above.)

(Sec. 70.5(c), Sec. 70.4(b)(2))

(4) For the same reason discussed above in II.B.1.a.(4), revise PCC

Sec. 17.12.180(A)(10) by either deleting the following sentence:

[[Page 36091]]

This provision shall not apply to emissions trading between

sources as provided in the applicable implementation plan.

or by revising this sentence as follows:

This provision shall not apply to emissions trading between

sources if such trading is prohibited in the applicable

implementation plan.

(Sec. 70.6(a)(8))

(5) For the same reason discussed above in II.B.1.a.(5), revise PCC

Sec. 17.12.180(A)(14) to clarify that changes made under this provision

may not be modifications under any provision of title I of the Act and

may not exceed emissions allowable under the permit. (Sec. 70.4(b)(12))

(6) Revise PCC Sec. 17.12.280 to include a provision that if a

timely and complete application for a permit renewal is submitted then

one of the following will occur (Sec. 70.4(b)(10)):

(a) The permit shall not expire until the renewal permit has been

issued or denied; or

(b) All terms and conditions of the permit shall remain in effect

until the renewal permit has been issued or denied.

(7) Revise PCC Sec. 17.12.340 to include a provision for giving

public notice ``by other means if necessary to assure adequate notice

to the affected public.'' (Sec. 70.7(h)(1))

(8) A.R.S. Sec. 49-514(G) provides for criminal enforcement of a

knowing violation of a ``material permit condition'' as defined by the

Director of ADEQ by rule. Pima is therefore required to use ADEQ's

definition of ``Material Permit Condition.'' For this reason and the

reasons discussed above in II.A.3. and II.B.1.a.(9), revise PCC

Sec. 17.12.350 in the same way as required for ADEQ in II.B.1.a.(9).

(9) For the same reasons discussed above in II.B.1.a.(10) and

II.B.1.c.(8), revise PCC Sec. 17.12.350(A)(3) to include fee and filing

requirements in the definition of ``Material Permit Condition.''

Section 70.11(a)(3)(ii) requires that criminal fines shall be

recoverable against any person who knowingly violates any fee or filing

requirement. A.R.S. Sec. 514(L)(3) provides for criminal enforcement of

a violation of fee or filing requirements due to criminal negligence

only. A.R.S. Sec. 514(G) provides for criminal enforcement of a knowing

violation of a ``material permit condition'' as defined by the Director

by rule. Thus, defining ``Material Permit Condition'' to include fee

and filing requirements will give Pima the authority to bring criminal

charges for knowing violations of fee and filing requirements.

(Sec. 70.11(a)(3)(ii))

(10) Revise PCC Sec. 17.12.400, which contains public notice

procedures for the issuance of general permits, to include requirements

that Pima shall:

(a) Provide notice by other means if necessary to assure adequate

notice to the affected public. (Sec. 70.7(h)(1))

(b) Provide notice of any public hearing, including the time and

place of the hearing, at least 30 days in advance of the hearing.

(Sec. 70.7(h)(4))

issues raised during the public participation process.

(Sec. 70.7(h)(5))

(d) Provide a copy of the final general permit to EPA.

(Sec. 70.8(a)(1))

d. Pinal County Air Quality Control District. If EPA finalizes this

interim approval, Pinal must make the following changes, or changes

that have the same effect, to receive full approval:

(1) PCR Sec. 1-3-140(74a)(b) contains Pinal's definition of

``Insignificant activity.'' It includes an emissions threshold that

defines which units or activities would be exempt from permitting. The

EPA considers this level to be acceptable for most pollutants but a

lower threshold may be appropriate for certain hazardous air

pollutants. The definition also contains a list of activities that are

considered insignificant and exempt from permitting regardless of their

level of emissions. To receive full approval, Pinal must demonstrate

that the 200 pound per year emission threshold is insignificant

compared to the level of hazardous air pollutant emissions from units

that are required to be permitted activities and provide a

demonstration that the activities listed in Sec. 1-3-140(74a)(b)(i-ix)

are truly insignificant. Alternatively, Pinal may restrict exemptions

to activities that emit less than County-established emission levels

and retain the provision that activities that are subject to an

applicable requirement shall not be considered insignificant. Pinal

should establish separate emission levels for HAPs and for other

regulated pollutants and demonstrate that these emission levels are

insignificant compared to the level of emissions from and type of units

that are required to be permitted or subject to applicable

requirements. (Sec. 70.5(c), Sec. 70.4(b)(2))

(2) Revise PCR Sec. 1-3-140(79)(b) to require that all fugitive

emissions of hazardous air pollutants at a source be considered in

determining whether the source is major for purposes of section 112 of

the CAA. Revise PCR Sec. 1-3-140(79)(c) to provide that fugitive

emissions of a stationary source shall not be considered in determining

whether it is a major stationary source for the purposes of section

302(j) of the Act, unless the source belongs to one of the categories

of stationary sources listed in section 70.2 under the definition of

``Major source,'' paragraph 2, items (i) to (xxvii).

(3) Revise PCR Sec. 3-1-040(C)(1) to require that the motor

vehicles, agricultural vehicles, and fuel burning equipment that are

exempt from permitting shall not be exempt if they are subject to any

applicable requirements. (70.5(c))

(4) Revise PCR Sec. 3-1-045(G)(1) to require sources requiring

Class A permits to submit a permit application no later than 12 months

after the date the Administrator approves the District program. Revise

PCR Sec. 3-1-050(C) to include an application deadline for existing

sources that become subject to obtaining a Class A permit after the

initial phase-in of the program. One example is a synthetic minor

source that is not initially required to obtain a Class I permit but

later removes federally enforceable limits on its potential emissions

such that it becomes a major source, but is not required to go through

the preconstruction review process. This application deadline must be

12 months from when the source becomes subject to the program (meets

Class A permit applicability criteria). (Sec. 70.5(a)(1)(i))

(5) For the reason discussed above in II.B.1.a.(4), revise PCR

Sec. 3-1-081(A)(10) by either deleting the following sentence:

This provision shall not apply to emissions trading between

sources as provided in the applicable implementation plan.

or by revising this sentence as follows:

This provision shall not apply to emissions trading between

sources if such trading is prohibited in the applicable

implementation plan.

(Sec. 70.6(a)(8))

(6) For the reason discussed above in II.B.1.a.(5), revise PCR

Sec. 3-1-081(A)(14) to clarify that changes made under this provision

may not be modifications under any provision of title I of the Act and

may not exceed emissions allowable under the permit. In addition,

revise this provision to require that the permit terms and conditions

shall provide for notice that conforms to section 3-2-180 (D) and (E)

and that describes how the increases and decreases in emissions will

comply with the terms and conditions of the permit. (Sec. 70.4(b)(12))

(7) Revise PCR Sec. 3-1-089 to include a provision that if a timely

and complete application for a permit renewal is submitted then one of

the following will occur (Sec. 70.4(b)(10)):

[[Page 36092]]

(a) The permit shall not expire until the renewal permit has been

issued or denied; or

(b) All terms and conditions of the permit shall remain in effect

until the renewal permit has been issued or denied.

(8) Revise PCR Sec. 3-1-107(C) to include a provision for giving

public notice ``by other means if necessary to assure adequate notice

to the affected public.'' (Sec. 70.7(h)(1))

(9) A.R.S. Sec. 49-514(G) provides for criminal enforcement of a

knowing violation of a ``material permit condition'' as defined by the

Director of ADEQ by rule. Pinal is therefore required to use ADEQ's

definition of ``Material Permit Condition.'' For this reason and the

reasons discussed above in II.A.3. and II.B.1.a.(9), revise PCR Sec. 3-

1-109 in the same way as required for ADEQ in II.B.1.a.(9).

(10) For the same reasons discussed above in II.A.B.1.a.(10) and

II.A.B.1.d.(9), revise PCR Sec. 3-1-109(A)(3) to include fee and filing