Air pollution laws and regulations require certain categories of stationary sources of air pollution to obtain an air permit prior to commencing construction or operation. These laws and regulations can be complex and difficult to navigate. Further, although some aspects of the laws and regulations are the same throughout the country because they are derived from the federal Clean Air Act, many aspects differ from state to state and county to county. This paper identifies those categories of stationary sources that are required to obtain an air permit in Maricopa County, Arizona prior to commencing construction or operation.
In Maricopa County, jurisdiction over air pollution control is shared by the Arizona Department of Environmental Quality (“ADEQ”) and the Maricopa County Air Quality Department (“MCAQD”). ADEQ has original jurisdiction over stationary source permits that pertain to: (1) metal smelters; (2) petroleum refineries; (3) coal fired electrical generating stations; and (4) portland cement plants. A.R.S. §49-402(A). MCAQD has jurisdiction over all other stationary sources, although ADEQ has the power to assert jurisdiction over sources that would otherwise be subject to county jurisdiction. A.R.S. 49-402(B). Because MCAQD has jurisdiction over most stationary sources in Maricopa County, the Maricopa County Air Pollution Control Regulations are the focus of this paper.
The Maricopa County Air Pollution Control Regulations provide that no person shall construct or operate an air pollution source subject to regulation without first obtaining a permit from MCAQD. MCAPCR Rule 200, §301. The regulations also require permits for certain modifications to sources. This paper does not address permit requirements for modifications. MCAQD issues the following five types of permits: (1) Title V Permits; (2) Non-Title V Permits; (3) General Permits; (4) Dust Control Permits; and (5) Permits to Burn. This paper discusses the categories of sources that are required to obtain each of these permits. However, it is important to remember that even though a particular source may not be required to obtain a permit, that source may still have to comply with certain requirements governing its emissions.
- Title V Permit
In general, Title V sources are the larger sources of air pollutants. Relatively few sources qualify. Currently, there are only thirty-four permitted Title V sources in Maricopa County. See www.maricopa.gov/aq/divisions/permit_engineering/titlev. Because the process of obtaining a Title V Permit is often time consuming, and because Title V Permit conditions can be onerous, most facilities try to avoid qualifying as Title V sources if possible.
There are four categories of sources required to obtain a Title V Permit in Maricopa County: (1) Major Sources; (2) solid waste incineration units required to obtain a permit pursuant to Section 129(e) of the federal Clean Air Act; (3) Affected Sources; and (4) sources in a source category designated by the EPA pursuant to 40 CFR 70.3 and adopted by the County Board of Supervisors by rule. MCAPCR Rule 200, §302. A source can trigger a Title V Permit requirement under more than one provision. The reason that a source triggers a Title V Permit requirement will be important in identifying the specific permit conditions that are applicable. Each of these four categories will be examined in turn.
The first category required to obtain a Title V Permit is a Major Source. There are three types of sources that are considered to be Major Sources. The first type of Major Source is a stationary source that directly emits or has the potential to emit 100 tons per year or more of any air pollutant. MCAPCR Rule 100, §200.60(c). The term “potential to emit” means the maximum capacity of the source to emit pollutants under its physical and operational design. Any limit on the capacity of the source to emit a pollutant, including air pollution control equipment and limits on the hours of operation or type of material combusted, is treated as part of the design as long as that limit is federally enforceable. Id., §200.85. Sources are sometimes able to avoid a requirement to obtain a Title V Permit by accepting certain federally enforceable limits.
A source’s fugitive emissions are not considered in determining whether the source is a Major Source unless that source is a Categorical Source, or in a source category designated by the United States EPA pursuant to the federal New Source Performance Standard (“NSPS”) or Hazardous Air Pollutant (“HAPs”) programs. Id., §200.60(c). “Fugitive emissions” are any emission which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening. Id., §200.54. There are 26 Categorical Sources, including iron and steel mills, lime plants and chemical process plants. Id., §200.60(c). There are over 70 source categories subject to the federal NSPS program, including hot mix asphalt facilities, sewage treatment plants and glass manufacturing plants. See 40 C.F.R., Part 60. There are over 170 source categories subject to the federal HAPs program, including industrial process cooling towers and gasoline distribution facilities. See 40 C.F.R., Part 63.
The second type of Major Source is a stationary source that emits or has the potential to emit, including fugitive emissions, ten tons per year or more of any federal HAP, or twenty-five tons per year or more of any combination of federal HAPs. MCAPCR Rule 100, §200.60(b). The federal Clean Air Act contains a list of 189 HAPs. 42 U.S.C. §7412(b).
The third type of Major Source is certain sources that emit Conventional Air Pollutants. Conventional Air Pollutants are those for which the EPA has promulgated a National Ambient Air Quality Standard (“NAAQS”). MCAPCR Rule 240, §203. There are six Conventional Air Pollutants: particulate matter, ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide and lead. The EPA designates each area of the country as either “in attainment” with or “not in attainment” with the NAAQS. Maricopa County is “Serious Non-Attainment” for particulate matter. See www.maricopa.gov/aq/division/planning_analysis/state_implementation_plan. A portion of Maricopa County is Non-Attainment for ozone. Id. However, the ozone Non-Attainment is basic, and is not classified as marginal, moderate, serious or severe. 69 Fed. Reg. 23858, 23878 (April 30, 2004).
A Major Source includes a stationary source (1) that emits or has the potential to emit 100 tons per year or more of covered ozone precursors, or 70 tons per year or more of particulate matter; (2) that is a Categorical Source that emits or has the potential to emit 100 tons per year or more of a Conventional Air Pollutant, or that is not a Categorical Source that emits or has the potential to emit 250 tons per year or more of any air pollutant; or (3) that emits or has the potential to emit five tons per year or more of lead. MCAPCR Rule 240, §§210.1, 210.2, 210.5.
The second category required to obtain a Title V Permit is a solid waste incineration unit that falls within an industrial source category for which a performance standard is promulgated pursuant to the federal NSPS program. MCAPCR Rule 200, §302.2; 42 U.S.C. §7429(e). Examples of such categories are municipal waste combusters, hospital/medical/infectious waste incinerators and commercial/industrial solid waste incineration units. See 40 C.F.R. Part 60.
The third category required to obtain a Title V Permit is an Affected Source. MCAPCR Rule 200, §302.3. An Affected Source is a source that is subject to the federal Acid Rain program. MCAPCR Rule 100, §200.7. These sources are generally large fossil fuel powered utility generating units. See 42 U.S.C. §7651 et seq.
The fourth category required to obtain a Title V Permit is any source in a source category designated by the EPA pursuant to 40 CFR 70.3 and adopted by the Board of Supervisors by rule. MCAPCR Rule 200, §302.4. A search of the Federal Register has revealed no source categories designated by the EPA pursuant to 40 C.F.R. §70.3.
- Non-Title V Permit
The second type of permit issued by the MCAQD is the Non-Title V Permit. In general, sources that are required to obtain a Non-Title V Permit emit lower quantities of pollution than sources required to obtain a Title V Permit. Also, in general, the process for obtaining a Non-Title V Permit is less time consuming than for obtaining a Title V Permit, and the permit conditions are less onerous. There are five categories of sources that are required to obtain a Non-Title V Permit. MCAPCR Rule 200, §303.
The first category of source required to obtain a Non-Title V Permit is very broad. It covers any source that emits or has the potential to emit, without controls, any quantity of a regulated air pollutant. Id., §303.3(c). There is an exemption that applies to this requirement for six types of equipment that meet certain criteria specified in the exemption. These six types of equipment are: (1) general combustion equipment; (2) liquid storage tanks; (3) surface coating and printing equipment; (4) solvent cleaning equipment; (5) internal combustion equipment; and (6) food equipment. Id. The applicability of an exemption only means that the source does not have to obtain a Non-Title V Permit. The source still must comply with all of the other applicable requirements of the rules. Id.
As an example, the following types of general combustion equipment meet the criteria for exemption: (1) any source with an aggregated input capacity of less than 2 million BTU/hour calculated by adding only those pieces of equipment over 300,000 BTU/hour with respect to fuel burning equipment fired with natural gas or liquefied petroleum gas; and (2) any oil fueled heating equipment with a maximum rated input capacity or an aggregated capacity of less than 500,000 BTU/hour. Id., §303(c)(1). As a further example, the following types of liquid storage tanks meet the criteria for exemption: (1) stationary tanks with a capacity of 250 gallons or less used for storing organic liquids; (2) stationary tanks used for storing organic liquids with a true vapor pressure of 1.5 psia or less; and (3) pressure tanks and pressurized vessels used exclusively for the storage of liquefied gas. Id., §303(c)(2).
There is also a miscellaneous exemption that applies to the following types of equipment and operations, among others: (1) diesel contaminated soil remediation projects where no heat is applied; (2) self-contained, enclosed blast and shot peen equipment where the total internal volume of the blast section is 50 cubic feet or less and where any venting is done via pollution control equipment; (3) those laboratory acids which have both a pH above 1.5 and an aggregate daily emission to ambient air of vapor/mists from all such acids not exceeding three pounds on any single day; (4) brazing or welding equipment; (5) hand soldering equipment; (6) a source whose aggregate of all wood working equipment totals 50 hp or less; (7) equipment used for buffing, carving, cutting, drilling, surface grinding, machining, planning, routing, sanding, sawing, shredding, or turning of ceramic artwork, precision parts, leather, metals, plastics, rubber, fiberboard, masonry, carbon, graphite or glass; (8) refrigerant recovery equipment; and (9) building maintenance or janitorial activities. Id., §303(c)(7).
The second category required to obtain a Non-Title V Permit is a source that emits or has the potential to emit, with controls, ten tons per year or more of a single HAP or twenty-five tons per year or more of any combination of HAPs designated pursuant to Rule 372 of the Maricopa County Air Pollution Control Regulations and not listed in the federal Clean Air Act. Id., §303.2(a). There are no HAPS designated pursuant to Rule 372 that are not also listed in the federal Clean Air Act. MCAPCR Rule 372, §212. Therefore, there are no sources that will fall within the second category.
The third category required to obtain a Non-Title V Permit is a source that emits or has the potential to emit, with controls, at least one ton per year, but less than ten tons per year, of a single HAP or at least 2.5 tons per year, but less than twenty-five tons per year, of any combination of HAPS, and that are within a source category listed pursuant to Rule 372 of the Maricopa County Air Pollution Control Regulations. Id., §303.2. Rule 372 lists twenty-four minor source categories, including wood kitchen cabinets, plastic foam products and sheet metal work. Id., §102.1, Table 1.
The fourth category required to obtain a Non-Title V Permit is a source, not a Major Source, subject to a standard, limitation or other requirement under Section 111 of the federal Clean Air Act governing the federal NSPS program. Id.., §303.3(a). This includes Area Sources that fall within the NSPS source categories set forth at 40 CFR Part 60. An Area Source is a stationary source that is not a Major Source. MCAPCR Rule 100, §200.18. A source that emits or has the potential to emit 100 tons per year or more of an air pollutant and that falls within one of the NSPS source categories is a Major Source and is required to obtain a Title V Permit. MCAPCR Rule 200, §302.1; Rule 100, §200.60(c).
The fifth category required to obtain a Non-Title V Permit is a source, not a Major Source, subject to a standard or other requirement under Section 112 of the federal Clean Air Act governing the federal HAPs program. Id., §303.3(b). This includes Area Sources of federal HAPs that fall within Area Source categories set forth at 40 CFR Part 63. An Area Source of HAPs is a stationary source of HAPs that is not a Major Source. Major Sources of federal HAPs, those sources that emit or have the potential to emit tens tons per year or more of any single HAP or twenty-five tons per year or more of any combination of HAPs, are required to obtain Title V Permits. MCAPCR Rule 200, §302.1; Rule 100, §200.60(b).
- General Permit
The third type of permit issued by the MCAQD is a General Permit. A General Permit is a permit that has been written by the MCAQD to apply to a class of facilities rather than just an individual source. MCAPCR Rule 200, §304. If a source falls within a facility class for which a General Permit has been issued, it simply applies to the MCAQD for authority to operate under the General Permit. MCAPCR Rule 230, §303.1. In general, sources prefer to operate under a General Permit if possible because it eliminates the need to go through the time consuming process of applying for an individual permit.
MCAQD is authorized to issue a General Permit for facility classes that contain a large number of sources that are similar in size, processes and operating conditions; that have substantially similar emissions; and that would be subject to the same or substantially similar requirements governing operations, emissions, monitoring, reporting, or recordkeeping. Id., §101. In Maricopa County, General Permits have been developed for the following seven facility classes: (1) dry cleaning; (2) fuel burning; (3) gasoline fuel dispensing; (4) graphic arts; (5) stationary emergency compression ignition internal combustion engines; (6) surface coating operations; and (7) vehicle and mobile equipment finishing. See www.maricopa.gov/aq/divisions/permit_engineering.
If the source’s application for coverage under the General Permit is denied, then the source must apply for an individual Title V or Non-Title V Permit. Id., §303.3. A source that is covered under a General Permit may request to be excluded from coverage by applying for an individual permit. Id., §307. Finally, the MCAQD may require that a source authorized to operate under a General Permit obtain an individual permit if (1) it is determined that the source is not in compliance with the terms and conditions of the General Permit; (2) it is determined that emissions from the source or facility class are significant contributors to ambient air quality standard violations which are not adequately addressed by the General Permit; or (3) information indicates that the effects on human health and the environment from the sources covered under the General Permit are unacceptable. Id., §311.1.
- Dust Control Permit
The fourth type of permit issued by the MCAQD is the Dust Control Permit. MCAPCR Rule 200, §305. A Dust Control Permit is required when a dust generating operation disturbs a total surface area of .10 acre. MCAPCR Rule 310, §302. A dust generating operation is any activity capable of generating fugitive dust, including, but not limited to, earthmoving, excavating, construction, demolition, bulk material handling and installing initial landscapes using mechanized equipment. Id., §209. A disturbed surface area is a portion of the earth’s surface, or material placed on the earth’s surface, that has been physically moved, uncovered, destabilized, or modified from its undisturbed native condition if the potential for the emission of fugitive dust is increased by the movement, destabilization, or modification. Id., §206.
Exemptions from the requirement to obtain a Dust Control Permit include, among other things: (1) normal farm cultural practices; (2) emergency activities that may disturb the soil conducted by any utility or government agency in order to prevent public injury or to restore critical utilities to functional status; (3) the establishment of initial landscapes, or conducting of landscape maintenance, without the use of mechanized equipment (except grading or trenching performed to establish initial landscapes or to redesign existing landscapes); and (4) playing on or maintaining a field used for non-motorized sports. Id., §103.
- Burn Permit
The fifth type of permit issued by the MCAQD is a Burn Permit. MCAPCR Rule 200, §307. In general, open outdoor fires are prohibited in Maricopa County. MCAPCR Rule 314, §301. An open outdoor fire is defined as “any combustion of any type of material outdoors, where the products of combustion are not directed through a flue.” Id., §209. There are exceptions to the general prohibition and some of these exceptions are dependent upon obtaining a Burn Permit. A Burn Permit is required prior to initiating the burn for the following types of allowed open outdoor fires: (1) determined as essential by the County Agricultural Agent for the purposes of disease and/or pest prevention; (2) declared necessary by a public officer for the control of weeds for the prevention of fire hazards; (3) for fire fighting training; (4) for the burning of agricultural ditchbanks and fence rows where other methods of removal are not available; (5) as declared necessary by the federal or state government for the purpose of watershed rehabilitation or control through vegetative manipulation; (6) for the destruction of tumbleweeds for the prevention of fire hazards where other reasonable methods are not available; and (7) for the burning of indigenous scrub vegetation cleared for the purpose of agricultural operations in non-urban areas of low population where other reasonable methods are not available. Id., §302.