title
TEHAMA COUNTY AIR POLLUTION CONTROL DISTRICT - Air Pollution Control Officer Joseph Tona
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Requested Action(s)
recommendation
a) PUBLIC HEARING - To receive comments on the repeal of current Tehama County Air Pollution Control District Rule 7:1 Federal Operating Permit Program, and adoption of the amended Tehama County Air Pollution Control District 7:1 Federal Operating Permit Program
and
b) RESOLUTION - Request the repeal of current Tehama County Air Pollution Control District Rule 7:1 Federal Operating Permit Program, and adoption of the amended Tehama County Air Pollution Control District Rule 7:1 Federal Operating Permit Program
or
c) Propose changes to the text of the amendment to Rule 7:1 Federal Operating Permit Program, and re-schedule the public hearing to consider the proposed Rule(s) as revised
Or
d) Take no action
body
Financial Impact:
There is no Financial Impact.
Background Information:
The Clean Air Act (CAA) is the comprehensive federal law that regulates air emissions from stationery and mobile sources. The EPA promulgated permitting regulations applicable to the operation of major and certain other sources of air pollutants under the Title V of the CAA in 1992 (57 Federal Register 32250). These regulations are codified in 40 CFR parts 70 and 71 which contain the requirements for state operating permit programs and the federal operating permit program respectively. The District’s EPA-approved Title V program under 40 CFR part 70 was adopted in February 1994 and is incorporated in District Regulation VII (Federally Operating Permit Program).
When the EPA finalized its Title V regulations for state operating permit programs (i.e. 40 CFR part 70) in 1992, the emergency affirmative defense provisions were included as part of the Title V regulations. These provisions established an affirmative defense that sources could have asserted in enforcement cases brought for noncompliance with technology-based emission limitations in operating permits, provided that the exceedances occurred due to qualifying emergency circumstances.
In 2014, the D.C. Circuit vacated affirmative defense provisions contained in the EPA’s National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Portland cement industry, promulgated under CAA section 112; NRDC v. EPA decision (746 F.3d 1055). In the NRDC decision, the D.C. Circuit concluded that the EPA lacked the authority to create these affirmative defense provisions because they contradicted fundamental requirements of the CAA concerning the authority of courts to decide whether to assess civil penalties in CAA enforcement suits. However, given that the NRDC decision was not based on CAA section 112, rather was based on CAA sections 113 (federal enforcement) and 304 (citizen suits), which apply broadly to the enforcement of a wide range of CAA requirements, and addressed the legal basis for affirmative defense provisions, the EPA reevaluated its interpretation of the CAA with respect to affirmative defense provisions in Title V programs.
Consequently, on July 21, 2023, EPA published a final rule (Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and Federal Operating Permit Program), effective on August 21, 2023, to remove the emergency affirmative defense provisions from the EPA’s Title V operating permit program regulations (40 CFR 70 and 40 CFR 71) because they are inconsistent with the EPA’s current interpretation of the enforcement structure of the CAA, in light of the said court decisions from the U.S. Court of Appeals for the D.C. Circuit. As a result of the EPA’s action, it is now required for applicable state, local, and tribal permitting authorities to submit program revisions to the EPA to remove similar Title V affirmative defense provisions from their EPA-approved Title V programs, and to remove similar provisions from individual operating permits.
Upon implementation of this proposed amendment, any excess emissions during periods of emergencies may now be subject to enforcement or imposition of remedies under 40 CFR 70 and 40 CFR 71, contained in District Rule 7:1.