July 10, 2017 | Eric L. Hiser
This is the first of what we plan as a regular series providing updates on EPA state NSR program approval actions. This roundup includes Alabama, Alaska, California (multiple districts), Colorado, Florida, Georgia, Illinois, Maryland, New Hampshire, New Mexico, North Dakota and South Dakota.
NSR Law Blog will issue roundups periodically, at least quarterly, depending on the number of actions. Please send us feedback on any changes to state approval status or additional information you would like included in these state roundups.
On June 29, 2017, EPA proposed to approve the Alabama Department of Environmental Management’s infrastructure SIP submittal for the 2012 annual particulate matter (PM2.5) NAAQS. 82 Fed. Reg. 29448. EPA found that Alabama’s provisions at 335-2-14-.01 through -.05 were sufficient to meet infrastructure SIP requirements.
On June 13, 2017, EPA proposed to approve Alaska’s updates to its federal incorporation by reference. 82 Fed. Reg. 27031. Proposed updates include updating 18 AAC 50.040 to include PSD provisions of 40 C.F.R. 51.166 and 52.21 as in effect on December 28, 2015; updates to AP-42, AERSCREEN and similar manuals as of 2015; establishment of a minor NSR baseline date; updating the minor NSR permit applicability thresholds in 18 AAC 50.502 to ensure that all sources that are increasing emissions above a significant threshold first obtain a permit; and revisions to the permit application timing provision to make it clear that the 30-day track starts after receipt of a “complete” application and that if alternative modeling is done, this requires public notice and comment.
Imperial County Air Pollution Control District. On June 12, 2017, EPA proposed conditional approval of Imperial County Air Pollution Control District (ICAPCD) Rule 207 updating the minor NSR program. 82 Fed. Reg. 26883. On December 19, 2016, EPA proposed limited approval and limited disapproval of Rule 207 and full approval of Rules 204 and 206. In the June 12, 2017 action, however, EPA found that the Rule met the requirements for minor PSD and for a moderate ozone and serious PM10 nonattainment area, but that it did not meet the requirements for a PM2.5 nonattainment area because it did not regulate ammonia, a PM2.5 precursor. Because ICAPCD had committed to fixing this issue within one year, EPA now proposes to issue conditional approval for the program, including Rule 207. On June 14, 2017 EPA approved Rules 204 and 206 into the SIP. 82 Fed. Reg. 27125.
Mendocino County Air Quality Management District. On July 3, 2017, EPA approved and disapproved rules of the Mendocino County Air Quality Management District (MCAQMD) related to NSR programs. 82 Fed. Reg. 30770. Specifically, EPA approved rules 1-130, 1-200, 1-220, and 1-230 as fully meeting Clean Air Act Requirements. EPA issued a limited approval and limited disapproval of rule 1-220 “New Source Review Standards” because some rule provisions conflict with part C of the Act. These provisions included the following:
- Rule 1–220 does not contain any provisions specifying that required air quality modeling shall be based on the applicable models, databases, and other requirements specified in Part 51 Appendix W; therefore, the requirements of 40 CFR 51.160(f) and 51.166(l) have not been meet.
- The requirements of 40 CFR 51.166(r)(1) and (2) have not been met because the rule does not include the necessary information about a source’s obligations.
Because of these deficiencies, EPA is required to promulgate a FIP if corrections are not received by August 2, 2019.
South Coast Air Quality Management District. On June 6, 2017, EPA proposed to approve revisions to the RECLAIM program to lower NOx thresholds and maintain its NSR and minor NSR approval status. 82 Fed. Reg. 25996. The affected Rules are 2001, 2002, 2005, 2011: Attachment C, Chapter 3 & Attachment E; and 2012: Attachment C, Chapter 4, & Attachment F.
Ventura County Air Pollution Control District. On March 10, 2017, EPA approved NSR SIP revisions to the Ventura County Air Pollution Control District (VCAPCD). 82 Fed. Reg. 13243. EPA had earlier proposed action on September 23, 2016. 81 Fed. Re. 65595. EPA approved:
- Repeal of existing SIP rule 26.10 “New Source Review-Prevention of Significant Deterioration” and
- Approval of new SIP rule 26.13 “New Source Review – Prevention of Significant Deterioration (PSD)”.
Effective April 10, 2017, VCAPCD’s program is considered SIP-authorized and is no longer EPA-delegated. EPA also transferred responsibility for existing PSD sources to VCAPCD. See 40 C.F.R. section 52.270(b)(17), 82 Fed. Reg. at 13245. Additional discussion is available in the proposed limited approval and limited disapproval. 81 Fed. Reg. 95074 (Dec. 27, 2016).
On June 6, 2017, EPA proposed to approve the Colorado Department of Health’s infrastructure SIP submittal for the 2010 SO2 NAAQS and the 2012 particulate matter (PM2.5) NAAQS. 82 Fed. Reg. 25999. EPA found that Colorado’s rules were sufficient to meet infrastructure SIP requirements for PSD and minor NSR.
On July 3, 2017, EPA issued direct final approval of permitting changes submitted by Florida. 82 Fed. Reg. 30767. The approved changes included:
- Rule 62–210.200—Definitions. Updated references in to reflect current federal language and definitions and correct cross-references, eliminate non-SIP uses of the term “modification,” and delete a lead SIL
- Rule 62-210.220—Small Business Assistance Program. Eliminated obsolete references.
- Rule 62-210.720—Plantwide Applicability Limits. Correct an error in Rule 62-212.720(1) to eliminate reference to a non-existent definition.
EPA approved all changes as administrative in nature.
On June 29, 2017, EPA direct final approved the portions of the SIP revisions that modify Rule 391–3–1–.01—‘‘Definitions,’’ and Rule 391–3–1–.03(6)—‘‘Exemptions.’’ 82 Fed. Reg. 29418. The Rule 391-3-1-.01 changes added a definition of “pollution control project” for minor NSR purposes. These projects are not available for PSD or NNSR projects or for any project that would make a source “major.” The Rule 391-3-1.03(6) change replaces “applicable requirements” with “NSPS” and “NESHAP” to provide greater specificity.
On June 30, 2017, EPA issued a final rule recodifying how it presents the Illinois SIP. 82 Fed. Reg. 30636. The new formulation presents the state rule and lists the federal approval status. The new format is substantially easier to follow and is codified at 40 C.F.R. 52.720.
On June 23, 2017, EPA proposed to approve NSR revisions submitted by the Maryland Department of Environment (MDE). 82 Fed. Reg. 28614 (June 23, 2017). On February 22, 2016, MDE submitted a SIP revision to revise section 26.11.02 (Permits, Approvals, and Registration) of the Code of Maryland Regulations (COMAR). EPA had previously approved 26.11.02. The proposed revisions:
- Revise 26.11.02.07 to specify that denials of permits to construct immediately constitute “final determinations” subject to direct judicial review without requiring permittees to seek review through the Office of Administrating Hearings.
- Revise 26.11.02.11 to make a minor change to the public participation processes for sources that trigger NSPS under 40 CFR part 60 but do not trigger NSR requirements, enhanced public notification provisions which require MDE to notify elected officials within a 1-mile radius of a source subject to the expanded public participation requirements of permit proceedings, eliminate the contested case process for significant permits, and provide for direct judicial review in circuit court for parties wishing to contest such permits.
- Revise 26.11.02.12 to clarify that Regulation .12 only applies to NSR and PSD permit approvals, case-by-case approvals pursuant to 40 CFR part 63 for air toxic sources, and permits to construct which are not subject to COMAR 26.11.02.11.
EPA proposed to approve the revisions, funding that while they do not address the required substance of the program, they improve its enforceability and, since there are no impacts on pollutant emissions, there is no “interference” under section 110(l).
On May 25, 2017, EPA approved a number of changes to the New Hampshire NSR programs, allowing the program to be fully approved instead of conditionally approved. 82 Fed. Reg. 24057. EPA also approved a January 31, 2017 SIP revision amending the public notice and hearing procedures for New Hampshire’s NNSR, PSD, and minor NSR permit programs. Changes approved include the following:
- 40 CFR 51.165(a)(5)(i), which notifies any owner or operator that approval to construct shall not relieve them of the responsibility to comply fully with applicable provisions of the plan and any other requirements under local, State or Federal law;
- 40 CFR 51.165(a)(6) and (7), which require additional record keeping and other requirements applicable at major stationary sources for projects that are not major modifications based on the required actual-to-projected actual test, but which have a ‘‘reasonable possibility’’ of resulting in a significant emission increase; and
- 40 CFR 51.166(q)(2)(iv), which requires notice of a draft PSD permit to be sent to, among other entities, state air agencies and Indian Governing bodies whose lands may be affected by emissions from the permitted source. Only the references to ‘‘state air agencies’’ and ‘‘Indian Governing bodies’’ were missing from New Hampshire’s regulatory provision and NHDEHR’s proposal addressed this deficiency.
- Removed New Hampshire’s former SIP-approved definitions of “allowable emissions” and “potential to emit,” replacing them with their federal equivalents
- Approved new Env-A 621, Permit Notice and Hearing Procedures: Temporary Permits and Permits to Operate, to replace Env-A 205.
- Approved removal of Env-A 700, construction permit fee schedule, because the same sources are addressed adequately by the Title V program fee structure.
On June 29, 2017, EPA approved and conditionally approved changes to the City of Albuquerque-Bernalillo County SIP’s minor new source review program. 82 Fed. Reg. 29421 (June 29, 2017). The City/County submitted the proposed SIP revisions to EPA on July 26, 2013 and in letters dated April 21, 2016, July 5, 2016, September 19, 2016, and December 20, 2016. EPA’s proposal is at The approved revisions:
- 20.11.41 sections 1, 3, 4, 5, 6, 9, 10, 11, 12, 18, 19, 20, 26, 27, and 29 NMAC are non-substantive revisions and are approved;
- Revise 220.127.116.11 NMAC to add source or activity based exemptions. EPA reviewed these for possible “interference” with the NAAQS and other requirements of the Clean Air Act. In finding them approvable, EPA found that they were inconsequential, that they had been used since 2014 and that the area’s performance had improved
- Revise 18.104.22.168 NMAC to include new definitions that either follow the federal definitions at 40 CFR 51.100 or the recently approved changes to the state minor NSR program at 20.2.72 NMAC. EPA conditionally approved the proposed definitions of “conflict of interest,” “technical permit revision,”
- Revise 22.214.171.124 NMAC for permit applications, which included an abbreviated process for technical permit revisions that did not include the posting requirement and therefore EPA conditionally approved, based upon the City/County’s commitment to require posting. The balance of the provision was more stringent and hence approved.
- Revise 126.96.36.199 NMAC to allow publication in a newspaper in the county in lieu of “area of the source” and to reduce the public comment period from 45 to 30 days, finding that this conformed to the federal minimum, and upheld the proposed requirement that individuals must comment on the application prior to commenting on the Department’s technical analysis, finding that this was a minimal burden;
- Revise 188.8.131.52 NMAC to require permit applicants to hold a “public information hearing” where the permit applicant presents its proposal and answers questions if the Department determines that there is significant public interest and a significant air quality issue. The hearing must be recorded and included in the administrative record. EPA found that there is no requirement for such a hearing for minor permits and, because the requirement is more stringent, it was approvable.
- Revise 184.108.40.206 NMAC to reduce the time for permit processing from 180 days to 90 days and to reduce the time for hearings from 90 to 60 days. EPA reviewed the department’s experience and air quality trends and approved.
- Revise 220.127.116.11 NMAC to provide for permit denials. The revisions eliminate reference to ambient air quality standards unique to the board. Because there are none, EPA approved this removal. The revisions also allowed denial based on a “conflict of interest” in the accelerated permitting process. Because EPA only conditionally approved the accelerated permitting process, it conditionally approved this provision. The rest of the changes to Section 17 were approved.
- New 18.104.22.168 NMAC, which allows the department to cancel, suspend or revoke a permit if there is a violation of the State’s clean air act, a board regulation, or permit condition. This was approved.
Revise 22.214.171.124 to include a requirement to notify the county of any updates or corrections to a permit within 60 days of when it knew or should have known of a change, and clarifying the date for submittal of the annual emissions inventory. These changes were approved.
- Eliminated 126.96.36.199 NMAC, which provided for emergency permits, and replaces it with a new section 22 that states that the permittee is responsible for the testing expenses, the permittee must submit a written report of the test results within 30 days of the completion of the testing, and the Department may require the permittee to repeat the testing or perform additional testing as frequently as the Department requires to ensure that the source demonstrates compliance with the permit.
- Revise 188.8.131.52 NMAC on portable sources, to require 45-days advance notice and additional administrative requirements that source owners/operators moving a portable source into the county must meet, including the requirement to submit an “EPA-approved air dispersion model showing the proposed new location will comply with the NAAQS and NMAAQS.”
- Revise 184.108.40.206 NMAC was revised to eliminate a reference to non-methane hydrocarbons. It also now requires that a source requiring an NNSR minor permit “shall demonstrate a net air quality benefit of at least a 20% reduction in ambient impact for each applicable contaminant.”
- Revise 220.127.116.11 NMAC on administrative and technical revisions. Administrative revisions require submittal to the department, cannot increase emissions, cannot change a permit term or condition, but may be used to reflect additions of exempt sources or activities or source retirements. Administrative revisions become effective when received by the department. Technical revisions are for changes cause emissions increases that are less than significant and less than 1 pound per hour of a NAAQS or NMAAQS pollutant. The department has 30 days to process approve or deny the application or to inform the applicant that it must seek a permit revision. The timeline can be extended if the department holds a public meeting in response to significant public interest. Technical revisions follow the public notice provisions of 18.104.22.168 NMAC. EPA conditionally approved this provision, because the notice was given by mailing to neighborhood organizations within a half mile, while EPA interprets its rules to require prominent posting and notice within 1 mile.
- New 22.214.171.124 NMAC defines permit modifications and requires them to go through the same process as a new minor NSR permit.
- New 126.96.36.199 NMAC establishes authority to reopen, revise and issue a permit if mistakes are found, additional requirements of the CAA or state act are found to apply, reopening is necessary to ensure compliance with federal or state requirements, or the permittee failed to disclose a material fact to the department.
- New 188.8.131.52 NMAC authorizes a general construction permit and prohibits major sources from participation.
- New 184.108.40.206 NMAC, which creates a new accelerated review process, where consultants are used to conduct technical review and permit drafting, subject to the department’s final review. EPA found that this provision omitted certain public participation requirements, which the department stated was an inadvertent omission, and EPA conditionally approved it.
On June 29, 2017, EPA proposed to approve the North Dakota Department of Health’s infrastructure SIP submittal for the 2010 SO2 NAAQS and the 2013 particulate matter (PM2.5) NAAQS. 82 Fed. Reg. 29457. EPA found that North Dakota’s rules were sufficient to meet infrastructure SIP requirements. The major issue that EPA resolved was whether the rules were adequate on visibility, given the failure to implement certain restrictions at the Coal Creek plant, but EPA found that additional restrictions approved by North Dakota for another coal-fired plant 32 miles away, which exceeded the reductions from Coal Creek, would provide equivalent reductions.
On June 6, 2017, EPA proposed to approve South Dakota’s infrastructure SIP submittal for the 2010 SO2 NAAQS and the 2012 PM2.5 NAAQS PSD and minor NSR elements. 82 Fed. Reg. 26008.
While mostly routine actions, the infrastructure SIP approvals do provide an insight into EPA’s basis for approving NSR SIPs despite some uncertainties resulting from the GHG and PM2.5 Implementation Rule litigation. In essence, EPA argues that the inclusion of now “unnecessary” provisions for GHG-only sources does not implicate approvability.