49-480.04. County program for control of hazardous air pollutants

A. Within six months after the adoption of rules pursuant to section 49-426.06, subsection A, the board of supervisors shall by rule establish a county program for the control of hazardous air pollutants meeting the requirements of this section. The program established pursuant to this section shall apply to the following sources:

1. Sources that emit or have the potential to emit with controls, ten tons per year or more of any hazardous air pollutant or twenty-five tons per year or more of any combination of hazardous air pollutants.

2. Sources that are within a category designated pursuant to section 49-426.05 and that emit or have the potential to emit, with controls, one ton per year or more of any hazardous air pollutant or two and one-half tons per year of any combination of hazardous air pollutants.

B. After the effective date of the rules adopted pursuant to subsection A of this section, a person shall not commence the construction or modification of a source that is subject to this section without first obtaining a permit or permit revision meeting the requirements of section 49-480 and subsection C or D of this section. A physical change to a source or change in the method of operation of a source is not a modification subject to this section if the change satisfies any of the following conditions:

1. The change complies with section 112(g)(1) of the clean air act.

2. The change, together with any other changes implemented or planned by the source, qualifies the source for an alternative emission limitation pursuant to section 112(i)(5) of the clean air act.

3. The change is required under a standard imposed pursuant to section 112(d) or 112(f) of the clean air act and the change is implemented after the administrator promulgates the standard.

C. A permit issued to a new or modified source that is subject to the county hazardous air pollutant program under subsection A, paragraph 1 of this section shall impose the maximum achievable control technology for the new source or modification, unless the applicant demonstrates pursuant to subsection D of this section that the imposition of maximum achievable control technology is not necessary to avoid adverse effects to human health or adverse environmental effects. A permit or permit revision issued to a new or modified source that is subject to the county hazardous air pollutant program under subsection A, paragraph 2 of this section shall impose hazardous air pollutant reasonably available control technology for the new source or modification, unless the applicant demonstrates pursuant to subsection D of this section that the imposition of hazardous air pollutant reasonably available control technology is not necessary to avoid adverse effects to human health or adverse environmental effects. When a reliable method of measuring emissions of a hazardous air pollutant subject to this section is not available, the control officer shall not require compliance with a numeric emission limit for the pollutant but shall instead require compliance with a design, equipment, work practice or operational standard, or a combination thereof. Standards imposed pursuant to this subsection shall apply only to hazardous air pollutants emitted in amounts exceeding the de minimis amounts established by the administrator or by the director pursuant to section 49-426.06, subsection B. The control officer shall not impose a standard under this subsection that would require the application of measures that are incompatible with measures required under a standard imposed pursuant to section 49-480.03, subsection A.

D. If the owner or operator of a new source or modification subject to this section establishes that the imposition of maximum achievable control technology or hazardous air pollutant reasonably available control technology is not necessary to avoid adverse effects to human health or adverse environmental effects by conducting a scientifically sound risk management analysis and submitting the results to the control officer with the permit application for the new source or modification, the control officer shall exempt the source from the imposition of such technology. The risk management analysis may take into account the following factors:

1. The estimated actual exposure of persons living in the vicinity of the source.

2. Available epidemiological or other health studies.

3. Risks presented by background concentrations of hazardous air pollutants.

4. Uncertainties in risk assessment methodology or other health assessment techniques.

5. Negative health or environmental consequences that would result from efforts to reduce the risk.

6. The technological and commercial availability of control methods beyond those otherwise required for the source and the cost of such methods.

E. If maximum achievable control technology or hazardous air pollutant reasonably available control technology standard has been established in a general permit for a defined class of sources pursuant to subsection C of this section and sections 49-480 and 49-426, subsection H, the owner or operator of a source within that class may obtain a variance from the standard by complying with subsection D of this section at the time the source applies to be permitted under the general permit. If the owner or operator makes the demonstration required by subsection D of this section and otherwise qualifies for the general permit, the control officer shall, in accordance with the procedures established pursuant to sections 49-480 and 49-426, approve the application and issue a permit granting a variance from the specific provisions of the general permit relating to the standard. Except as otherwise modified by the variance, the general permit shall govern the source.

F. If the clean air act has established provisions, including specific schedules, for the regulation of source categories pursuant to section 112(e)(5) and 112(n) of the clean air act, those provisions and schedules shall apply to the regulation of those source categories under subsection B of this section.

G. For any category or subcategory of facilities licensed by the nuclear regulatory commission, the control officer shall not adopt or enforce any standard or limitation respecting emissions of radionuclides which is more stringent than the standard or limitation adopted by the administrator pursuant to section 112 of the clean air act.

H. Except as otherwise provided in subsection I of this section, the program established pursuant to this section shall apply only to source categories designated by the director pursuant to section 49-426.05, subsection A and to hazardous air pollutants designated by the director pursuant to section 49-426.03, subsection A and section 49-426.04.

I. When a new source that is within a category that has not been designated pursuant to section 49-426.05, subsection A submits an application for a permit pursuant to section 49-480, the control officer may suspend action on the application pending the designation of the category by the director pursuant to section 49-426.05, subsection A, if all of the following conditions are satisfied:

1. The director makes the finding required by section 49-426.05, subsection A for the category to which the source belongs.

2. The control officer provides notice of the director's finding and the control officer's intent to suspend action on the application to the applicant on or before the date that a completeness determination is due under sections 49-480 and 49-426.

3. The applicant does not elect to comply with subsection C or D of this section.

J. For purposes of subsection A of this section, in determining potential to emit, the control officer shall consider controls that are enforceable under any federal law or regulation, state or local law or rule or that are inherent in the design of the source.

K. In determining whether emissions from a source or modification exceed the thresholds prescribed by subsection A or B of this section, the control officer shall exclude particulate matter emissions that consist of natural crustal material and are produced either by natural forces, such as wind or erosion, or by anthropogenic activities, such as agricultural operations, excavation, blasting, drilling, handling, storage, earth moving, crushing or grinding of crustal materials and traffic over paved or unpaved roads, or other similar activities. Nothing in this subsection shall preclude the regulation of emissions of crustal materials as particulate matter pursuant to other sections of this chapter.