Regional Reports: Region 9

Eric L. Hiser
TESTLaw Practice Group
Phoenix, Ariz. & Columbia, SC
ehiser@testlaw.com

I. Recent Title V Developments in Region 9

A. Partial Revocation of Local Title V Programs in California

The big news in Title V is the settlement agreement in Association of Irritated Residents (AIR) v. U.S. EPA, Nos. 02-70160, 02-70177, 02-70191(May 2002), in which EPA Region 9 agreed to issue a Notice of Deficiency (NOD) proposing to partially revoke the 34 local air district Title V full approvals due to their:

not adequately administering or enforcing their Part 70 programs because the districts lack adequate authority to issue permits to, and assure compliance by, all major agricultural sources required to have a permit under Title V of the Clean Air Act as a result of the exemption in section 42310 of the California Health and Safety Code, which provides in relevant part that “a permit shall not be required for ... (e) any equipment used in agricultural operations in the growing of crops or the raising of fowl or animals.”

The Settlement Agreement further stated that EPA would implement a partial Part 71 program, with a requirement that major sources due to diesel-powered engine exhaust submit a permit application no later than 6 months after the effective date of the Part 71 program or May 1, 2003, whichever was later, and all remaining agricultural major sources no later than Aug. 1, 2003. The Settlement Agreement allowed EPA to reinstate the Part 70 programs if the agricultural exemption is removed.

On Oct. 15, 2002, Region 9 issued a final rule to “withdraw, in part, approval of the following 34 Clean Air Act title V operating permit programs in the State of California.” 67 Fed. Reg. 63551 (Oct. 15, 2002). In the same notice, EPA also gave notice of the implementation of a Part 71 program for the exempt agricultural sources. With EPA’s action, a Part 71 program was established in all California APCD permitting jurisdictions effective Nov. 14, 2002, except Antelope Valley, which is still operating under interim approval.

Major comments on the proposed withdrawal dealt with whether the withdrawal should be made under the failure to administer provisions (40 C.F.R. § 70.10(a)), the failure to have an approvable program (40 C.F.R. § 70.10(b)), or the lack of appropriate legal authority (40 C.F.R. § 70.4(i)(1)). EPA rejected all of the arguments against its decision to proceed under the failure to administer provisions on the basis that the time for an approvable program objection had already passed and that the agency had discretion between 70.10(a) and 70.4(i)(1). The agency also faulted California for not indicating any intent to fix the agricultural exemption and hence did not believe that the longer time frame was appropriate. Further comments addressed the applicability of the withdrawal to irrigation pumps, whether all pumps qualified as stationary sources or whether some might qualify as portable equipment, and the proper classification of various concentrated animal feeding operations (CAFOs).

B. Status of Title V Permit Issuance in Region 9

Region 9 is lagging the rest of the United States in completing the initial issuance of Title V permits. Final Title V permit issuances throughout the Region are at approximately 60-70 percent and range from a high of nearly 100 percent in Hawaii to a low of 20-40 percent in Nevada. California presents a mixed bag, with its APCDs ranging from 0 to 100 percent of initial Title V permits completed. Jurisdictions with significant Title V backlogs include Maricopa and Pima Counties, Arizona (less than 10 percent completed) and several of the rural California APCDs, which have failed to issue any Title V permits at all. On the other hand, several of the major agencies have completed most of their permits (e.g., Bay Area, over 77 percent; South Coast AQMD, over 61 percent; ADEQ, over 83 percent; Hawaii, over 96 percent).

II. Judicial Developments

In addition to the AIR case, in United States v. Price, 314 F.3d 417 (9th Cir. 2002), the Ninth Circuit rejected an argument that Double Jeopardy barred a subsequent federal criminal action for asbestos NESHAP violations when the violator had previously paid a civil penalty to a local air pollution control authority. In this case, the Ninth Circuit found that where the Clark County Health District had separately adopted regulations, albeit identical to the federal NESHAP, the District’s separate adoption was sufficient to invoke the “Dual Sovereigns” doctrine and support separate convictions. The Ninth Circuit found that the existence of delegation did not affect this analysis.

In United States v. Technic Services, 314 F.3d 1031 (9th Cir. 2002), a split panel of the Ninth Circuit split with the First Circuit and held that an individual holding an asbestos license was not imbued with a “public trust” warranting a departure upwards under the Federal Sentencing Guidelines for violations of the asbestos NESHAP. The court held, however, that potential departures upwards for a position of “private trust” and “special expertise” might be appropriate. The case was remanded for resentencing.

III. Selected Administrative Developments

A. California

State-wide. Pursuant to § 110(k)(5), on Feb. 13, 2003, EPA proposed to find that the California State Implementation Plan (SIP) “substantially inadequate for all nonattainment air pollution control districts in the State and for all attainment area districts that have an approved Prevention of Significant Deterioration (PSD) program because the State cannot provide ‘necessary assurances’ that it or the districts have authority to carry out the applicable nonattainment New Source Review (NSR) or PSD portions of the SIP.” EPA contends that the California exemption for agricultural sources (discussed in the AIR case) violates Sections 110(a)(2)(C) and (I) and 172 and Section 110(a)(2)(E) of the Clean Air Act, which variously establish the NSR and PSD programs and require that each SIP provide necessary assurances that the state or districts have adequate authority to carry out the SIP and that no state law prohibits the state or districts from carrying out any portion of the SIP. If EPA finalizes its proposed finding of substantial inadequacy, California will be required to amend its state law to eliminate the permitting exemption as it pertains to major agricultural sources of air pollution and submit the necessary assurances by Nov. 23, 2003 to support an affirmative finding by EPA under Section 110(a)(2)(E). If the state fails to submit the necessary assurances of authority or if EPA disapproves any such submittal in response to a final SIP call, sanctions will apply statewide pursuant to Section 179 of the Act. 68 Fed. Reg. 7327 (Feb. 13, 2003).

California Air Resources Board. On Aug. 6, 2002, EPA changed the boundaries of the Searles Valley, California moderate PM-10 nonattainment area (NA) by dividing that area into three new, separate moderate NAs: Coso Junction, Indian Wells Valley and Trona. EPA also found that the newly-created Trona NA had attained the 24-hour and annual PM-10 NAAQS. 67 Fed. Reg. 50805 (Aug. 6, 2002).

Bay Area Air Quality Management District. On Jan. 7, 2003, EPA gave notice that it had entered into a settlement agreement with Communities for a Better Environment in which EPA agreed to issue a NOD to BAAQMD stating that the portable engine exemption in BAAQMD Rule 2-6-113 must be revised to be consistent with the term “stationary source” as it is defined in the Clean Air Act, 42 U.S.C. § 7602(z), and EPA’s implementing regulations, 40 C.F.R. § 70.2, as well as the definition of “nonroad engine” at 40 C.F.R. § 89.2 and that the definition of “administrative permit amendment” in BAAQMD Rule 2-6-201 should be revised to be consistent with the definition of “administrative permit amendment” set forth in 40 C.F.R. § 70.7(d)(i) – (iv). 68 Fed. Reg. 1845 (Jan. 7, 2003).

Kern County Air Pollution Control District. On Dec. 17, 2002, EPA proposed to approve the moderate area plan and maintenance plan for the Indian Wells Valley planning area in California and to redesignate the area from nonattainment to attainment for the PM-10 NAAQS. 67 Fed. Reg. 77196 (Dec. 17, 2002).

San Diego County Air Pollution Control District. On Oct. 23, 2002, EPA issued a final determination that the San Diego area has attained the 1-hour ozone national ambient air quality standard (NAAQS) by the deadline required by the CAA. 67 Fed. Reg.65043 (Oct. 23, 2002).

San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD). EPA made an interim final determination to stay and/or defer imposition of sanctions based on a proposed approval of revisions SJVUAPCD Rules 2020 and 2201. The interim final determination became effective Feb. 13, 2003. This action stops an 18-month sanctions clock that had started to run in July 2002. 68 Fed. Reg. 7321 (Feb. 13, 2003). The proposed approval of the rules is found at page 7330.

Santa Barbara County Air Pollution Control District. On Aug. 27, 2002, EPA finalized its determination that the Santa Barbara County area had attained the 1-hour ozone air NAAQS by the deadline required by the Clean Air Act (CAA) and also finalized its approval of the 1-hour ozone contingency measures as revisions to the Santa Barbara portion of the California SIP. 67 Fed. Reg. 54963 (Aug. 27, 2002).

South Coast Air Quality Management District. On Dec. 17, 2002, EPA proposed to grant the state’s request for an extension of the PM-10 attainment deadline to Dec. 31, 2006 for the Coachella Valley. 67 Fed. Reg. 77212 (Dec. 17, 2002).

B. Nevada

State-wide. EPA approved a request from the state of Nevada, pursuant to Section 107(d) of the Clean Air Act, to redesignate the single unclassifiable area for PM-10 into numerous individual areas to be consistent with the area definitions for other pollutants. EPA also approved a state-requested subdivision of hydrographic area 61 (Boulder Flat), into two areas. EPA’s approval of these requests establishes hydrographic areas as the Section 107(d) unclassifiable areas for PM-10 and replaces hydrographic area 61 with two new Section 107(d) areas for PM-10, sulfur dioxide and nitrogen dioxide: upper area 61 and lower area 61. EPA also deleted certain total suspended particulate (TSP) area designations that were no longer necessary. 67 Fed. Reg.68769 (Nov. 13, 2002).

Clark County. On Jan. 28, 2003, EPA proposed to approve SIP revisions submitted by the state of Nevada to provide for attainment of the carbon monoxide (CO) national ambient air quality standards (NAAQS) in the Clark County Nonattainment Area. 68 Fed. Reg. 4141 (Jan. 28, 2003).