8 CAR § 41-804. Adoption of rules

(a)(1) Except where manifestly inconsistent with the provisions of the Clean Air Act, as amended, or with federal regulations adopted pursuant thereto, and as amended specifically herein by subsections (b), (c), (d), (e), (f), and (g) of this section, the Division of Environmental Quality shall have those responsibilities and that authority, with reference to the State of Arkansas, granted to the Administrator of the United States Environmental Protection Agency under 40 C.F.R. § 52.21(a)(2) – (bb), as in effect on November 29, 2005, which are hereby incorporated herein by reference with the exception of: (A)(i) 40 C.F.R. § 52.21(aa), which is incorporated by reference as in effect on August 13, 2012, except for instances in the sections of 40 C.F.R. § 52.21(aa) where 40 C.F.R. § 52.21(b)(49) is referenced. (ii) In those instances, subsection (g) of this section shall apply; (B) 40 C.F.R. § 52.21(r)(6), which is incorporated by reference as of the effective date of the federal final rule published by the United States Environmental Protection Agency in the Federal Register on December 21, 2007 (72 FR 72607); (C) 40 C.F.R. §§ 52.21(b)(23), 52.21(i)(5)(ii), and 52.21(i)(5)(iii), which are incorporated by reference as of May 16, 2008; (D) 40 C.F.R. §§ 52.21(b)(14)(i) (major source baseline date), 52.21(b)(14)(ii) (minor source baseline date), 52.21(b)(14)(iii), 52.21(b)(15) (baseline area), 52.21(c) (ambient air increments), 52.21(k)(1) (source impact analysis requirements), and 52.21(p) (requirements for sources impacting federal Class I areas), which are incorporated herein by reference as of October 20, 2010; and (E) 40 C.F.R. §§ 52.21(b)(49), 52.21(b)(50), 52.21(b)(55 – 58), 52.21(i)(9), and 52.21(cc), which are not incorporated herein. (2) In the absence of a specific imposition of responsibility or grant of authority, the division shall be deemed to have that responsibility and authority necessary to attain the purposes of the state implementation plan, this subpart, and the applicable federal regulations, as incorporated herein by reference. (b)(1) Exclusions from the consumption of increments, as provided in 40 C.F.R. § 51.166(f)(1)(iii) as of November 29, 2005, shall be effective immediately. (2) Submission of the state implementation plan under the Governor's signature constitutes a request by the Governor for this exclusion. (c) In addition to the requirements of 40 C.F.R. § 52.21(o) as of November 29, 2005, the following requirements, designated as subdivisions (c)(1), (2), (3), and (4) of this section, shall also apply: (1) Where air quality impact analyses required under this subpart indicate that the issuance of a permit for any major stationary source or for any major modification would result in the consumption of more than fifty percent (50%) of any available annual increment or eighty percent (80%) of any short-term increment, the person applying for such a permit shall submit to the division an assessment of the following factors: (A) Effects that the proposed consumption would have upon the industrial and economic development within the area of the proposed source; and (B) Alternatives to such consumption, including alternative siting of the proposed source or portions thereof; (2) The assessment required under subdivision (c)(1) of this section shall be made part of the application for permit and shall be made available for public inspection as provided in 40 C.F.R. § 52.21(q) as of November 29, 2005; (3) The assessment required under subdivision (c)(1) of this section shall be in detail commensurate with the degree of proposed increment consumption, both in terms of the percentage of increment consumed and the area affected; and (4)(A) The assessment required under subdivision (c)(1) of this section may be made effective where a proposed source would cause an increment consumption less than that specified in said subdivision (c)(1) of this section if the Director of the Division of Environmental Quality finds that unusual circumstances exist in the area of the proposed source that warrant such an assessment. (B) The director shall notify the applicant in writing of those circumstances that warrant said assessment. (C) The Arkansas Pollution Control and Ecology Commission may rescind or modify the director’s action upon a showing by the applicant that the circumstances alleged by the director either do not exist or do not warrant the aforecited assessment. (d) In addition to the requirements of 40 C.F.R. § 52.21(p)(1) as of October 20, 2010, the following requirements shall also apply: (1)(A) Impacts on mandatory Class I federal areas include impacts on visibility. (B) The preliminary determination that a source may affect air quality or visibility in a mandatory Class I federal area shall be made by the division, based on screening criteria agreed upon by the division and the Federal Land Manager. (e) In all instances wherein the aforesaid 40 C.F.R. § 51.301 and 40 C.F.R. § 52.21 refer to the Administrator of the United States Environmental Protection Agency or the United States Environmental Protection Agency, the reference, for the purposes of subsection (a) of this section, shall be deemed to mean the division, unless the context plainly dictates otherwise, except in the following sections: (1) Exclusion from increment consumption: 40 C.F.R. § 52.21(f)(1)(v), (f)(3), and (f)(4)(I); (2) Redesignation: 40 C.F.R. § 52.21(g)(1), (g)(2), (g)(4), (g)(5), and (g)(6); and (3) Air quality models: 40 C.F.R. § 52.21(l)(2). (f) Redesignation of air quality areas in Arkansas shall comply with Arkansas Code § 8-3-101 et seq. (g)(1) For the purpose of the regulation of greenhouse gases, only the standards and requirements promulgated by the United States Environmental Protection Agency as of June 3, 2010, related to the permitting of greenhouse gas emissions shall apply to the requirements of 40 C.F.R. § 52.21, as of November 29, 2005, incorporated by reference at subsection (a) of this section. (2) The following definitions and requirements shall also apply: (A)(i) “Emissions increase” as used in subdivisions (g)(2)(D) and (E) of this section, means that both a significant emissions increase (as calculated using the procedures in 40 C.F.R. § 52.21(a)(2)(iv), as of November 29, 2005), and a significant net emissions increase (as defined in 40 C.F.R. § 52.21(b)(3), as of November 29, 2005, and 40 C.F.R. § 52.21(b)(23), as of November 29, 2005), occur. (ii)(a) For the pollutant greenhouse gases, an emissions increase shall be based on tons per year of CO2 equivalent emissions, and shall be calculated assuming the pollutant greenhouse gases is a regulated new source review pollutant. (b) “Significant” is defined as seventy-five thousand (75,000) tons per year of CO2 equivalent emissions instead of applying the value in 40 C.F.R. § 52.21(b)(23)(ii), as of November 29, 2005; (B) “Greenhouse gases” means the air pollutant defined as the aggregate group of six (6) greenhouse gases, carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall not be subject to regulation except as provided in subdivisions (g)(2)(D) and (E) of this section, and shall not be subject to regulation if the stationary source: (i) Maintains its total plant-wide emissions below the greenhouse gas plant-wide applicability limitations level; (ii) Meets the requirements in 40 C.F.R § 52.21(aa)(1) – (aa)(15) as outlined in subdivision (a)(1)(A) of this section; and (iii) Complies with the greenhouse gases plant-wide applicability limitations contained in the permit; (C) “Tons per year of CO2 equivalent emissions”, for purposes of subdivisions (g)(2)(A), (D), and (E) of this section, shall represent an amount of greenhouse gases emitted, and shall be computed as follows: (i) Multiplying the mass amount of emissions in tons per year, for each of the six (6) greenhouse gases in the pollutant greenhouse gases, by each gas’s associated global warming potential published at Table A-1 to Subpart A of 40 C.F.R. pt. 98 – Global Warming Potentials; and (ii) Sum the resultant values from this subdivision (g)(2)(C) for each gas to compute tons per year of CO2 equivalent emissions; (D) Beginning January 2, 2011, the pollutant greenhouse gases is subject to regulation if: (i) The stationary source is a new major stationary source for a regulated new source review pollutant that is not greenhouse gases, and also will emit or will have the potential to emit greenhouse gases at seventy-five thousand (75,000) tons per year of CO2 equivalent emissions or more; or (ii) The stationary source is an existing major stationary source for a regulated new source review pollutant that is not greenhouse gases, and also will have an emissions increase of a regulated new source review pollutant, and an emissions increase of greenhouse gases of seventy-five thousand (75,000) tons per year of CO2 equivalent emissions or more; and (E) [Reserved]. (h) The following shall apply when dispersion or other air quality modeling is used to meet the requirements of this subpart: (1)(A) General. (B) All applications of air quality modeling involved in this subpart shall be based on the applicable models, databases, and other requirements specified in Appendix W of 40 C.F.R. pt. 51, Guideline on Air Quality Models; and (2)(A) Substitution. (B)(i) Where an air quality model specified in the Guideline on Air Quality Models is inappropriate, the model may be modified or another model substituted. (ii) Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific pollutant or type of stationary source. (iii) Written approval of the Administrator of the United States Environmental Protection Agency must be obtained for any modification or substitution.