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(continued)
(1) Steps for each operating phase:
(A) Initial startup;
(B) Normal operations;
(C) Temporary operations;
(D) Emergency shutdown including the conditions under which emergency shutdown is required, and the assignment of shutdown responsibility to qualified operators to ensure that emergency shutdown is executed in a safe and timely manner;
(E) Emergency operations;
(F) Normal shutdown; and,
(G) Startup following a turnaround, or after an emergency shutdown.
(2) Operating limits:
(A) Consequences of deviation; and,
(B) Steps required to correct or avoid deviation.
(3) Safety and health considerations:
(A) Properties of, and hazards presented by, the chemicals used in the process;
(B) Precautions necessary to prevent exposure, including engineering controls, administrative controls, and personal protective equipment;
(C) Control measures to be taken if physical contact or airborne exposure occurs;
(D) Quality control for raw materials and control of hazardous chemical inventory levels; and,
(E) Any special or unique hazards.
(4) Safety systems and their functions.
(b) Operating procedures shall be readily accessible to employees who work in or maintain a process.
(c) The operating procedures shall be reviewed as often as necessary to assure that they reflect current operating practice, including changes that result from changes in process chemicals, technology, and equipment, and changes to stationary sources. The owner or operator shall certify annually that these operating procedures are current and accurate.
(d) The owner or operator shall develop and implement safe work practices to provide for the control of hazards during operations such as lockout/tagout; confined space entry; opening process equipment or piping; and control over entrance into a stationary source by maintenance, contractor, laboratory, or other support personnel. These safe work practices shall apply to employees and contractor employees.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.69, Part 68, Title 40, Code of Federal Regulations.
s 2760.4. Training.
(a) Initial training.
(1) Each employee presently involved in operating a process, and each employee before being involved in operating a newly assigned process, shall be trained in an overview of the process and in the operating procedures as specified in Section 2760.3. The training shall include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe work practices applicable to the employee's job tasks.
(2) In lieu of initial training for those employees already involved in operating a process on June 21, 1999 an owner or operator may certify in writing that the employee has the required knowledge, skills, and abilities to safely carry out the duties and responsibilities as specified in the operating procedures.
(b) Refresher training. Refresher training shall be provided at least every three years, and more often if necessary, to each employee involved in operating a process to assure that the employee understands and adheres to the current operating procedures of the process. The owner or operator, in consultation with the employees involved in operating the process, shall determine the appropriate frequency of refresher training.
(c) Training documentation. The owner or operator shall ascertain that each employee involved in operating a process has received and understood the training required by this section. The owner or operator shall prepare a record which contains the identity of the employee, the date of training, and the means used to verify that the employee understood the training.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.71, Part 68, Title 40, Code of Federal Regulations.
s 2760.5. Mechanical Integrity.
(a) Application. Sections (b) through (f) of this section apply to the following process equipment:
(1) Pressure vessels and storage tanks;
(2) Piping systems (including piping components such as valves);
(3) Relief and vent systems and devices;
(4) Emergency shutdown systems;
(5) Controls (including monitoring devices and sensors, alarms, and interlocks); and,
(6) Pumps.
(b) Written procedures. The owner or operator shall establish and implement written procedures to maintain the on-going integrity of process equipment.
(c) Training for process maintenance activities. The owner or operator shall train each employee involved in maintaining the on-going integrity of process equipment in an overview of that process and its hazards and in the procedures applicable to the employee's job tasks to assure that the employee can perform the job tasks in a safe manner.
(d) Inspection and testing.
(1) Inspections and tests shall be performed on process equipment.
(2) Inspection and testing procedures shall follow recognized and generally accepted good engineering practices.
(3) The frequency of inspections and tests of process equipment shall be consistent with applicable manufacturers' recommendations and good engineering practices, and more frequently if determined to be necessary by prior operating experience.
(4) The owner or operator shall document each inspection and test that has been performed on process equipment. The documentation shall identify the date of the inspection or test, the name of the person who performed the inspection or test, the serial number or other identifier of the equipment on which the inspection or test was performed, a description of the inspection or test performed, and the results of the inspection or test.
(e) Equipment deficiencies. The owner or operator shall correct deficiencies in equipment that are outside acceptable limits (defined by the process safety information in Section 2760.1) before further use or in a safe and timely manner when necessary means are taken to assure safe operation.
(f) Quality assurance.
(1) In the construction of new plants and equipment, the owner or operator shall assure that equipment as it is fabricated is suitable for the process application for which they will be used.
(2) Appropriate checks and inspections shall be performed to assure that equipment is installed properly and consistent with design specifications and the manufacturer's instructions.
(3) The owner or operator shall assure that maintenance materials, spare parts and equipment are suitable for the process application for which they will be used.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.73, Part 68, Title 40, Code of Federal Regulations.
s 2760.6. Management of Change.
(a) The owner or operator shall establish and implement written procedures to manage changes (except for "replacements in kind") to process chemicals, technology, equipment, and procedures; and, changes to stationary sources that affect a covered process.
(b) The procedures shall assure that the following considerations are addressed prior to any change:
(1) The technical basis for the proposed change;
(2) Impact of change on safety and health;
(3) Modifications to operating procedures;
(4) Necessary time period for the change; and,
(5) Authorization requirements for the proposed change.
(c) Employees involved in operating a process and maintenance and contract employees whose job tasks will be affected by a change in the process shall be informed of, and trained in, the change prior to start-up of the process or affected part of the process.
(d) If a change covered by this section results in a change in the process safety information required by Section 2760.1, such information shall be updated accordingly.
(e) If a change covered by this section results in a change in the operating procedures or practices required by Section 2760.3, such procedures or practices shall be updated accordingly.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.75, Part 68, Title 40, Code of Federal Regulations.
s 2760.7. Pre-Startup Review.
(a) The owner or operator shall perform a pre-startup safety review for new stationary sources and for modified stationary sources when the modification is significant enough to require a change in the process safety information.
(b) The pre-startup safety review shall confirm that prior to the introduction of regulated substances to a process:
(1) Construction and equipment is in accordance with design specifications;
(2) Safety, operating, maintenance, and emergency procedures are in place and are adequate;
(3) For new stationary sources, a PHA has been performed and recommendations have been resolved or implemented before startup, and modified stationary sources meet the requirements contained in management of change, Section 2760.6; and,
(4) Training of each employee involved in operating a process has been completed.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.77, Part 68, Title 40, Code of Federal Regulations.
s 2760.8. Compliance Audits.
(a) The owner or operator shall certify that they have evaluated compliance with the provisions of this article at least every three years to verify that the procedures and practices developed under the chapter are adequate and are being followed.
(b) The compliance audit shall be conducted by at least one person knowledgeable in the process.
(c) A report of the findings of the audit shall be developed.
(d) The owner or operator shall promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.
(e) The owner or operator shall retain the two most recent compliance audit reports.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.79, Part 68, Title 40, Code of Federal Regulations.
s 2760.9. Incident Investigation.
(a) The owner or operator shall investigate each incident which resulted in, or could reasonably have resulted in, a catastrophic release of a regulated substance.
(b) An incident investigation shall be initiated as promptly as possible, but not later than 48 hours following the incident.
(c) An incident investigation team shall be established and consist of at least one person knowledgeable in the process involved, including a contract employee if the incident involved work of the contractor, and other persons with appropriate knowledge and experience to thoroughly investigate and analyze the incident.
(d) A report shall be prepared at the conclusion of the investigation which includes at a minimum:
(1) Date of incident;
(2) Date investigation began;
(3) A description of the incident;
(4) The factors that contributed to the incident; and,
(5) Recommendations resulting from the investigation.
(e) The owner or operator shall establish a system to promptly address and resolve the incident report findings and recommendations. Resolutions and corrective actions shall be documented.
(f) The report shall be reviewed with all affected personnel whose job tasks are relevant to the incident findings including contract employees where applicable.
(g) Incident investigation reports shall be retained for five years.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.81, Part 68, Title 40, Code of Federal Regulations.
s 2760.10. Employee Participation.
(a) The owner or operator shall develop a written plan of action regarding the implementation of the employee participation required by this section.
(b) The owner or operator shall consult with employees and their representatives on the conduct and development of PHA and on the development of the other elements of process safety management in this chapter.
(c) The owner or operator shall provide employees and their representatives with access to PHAs and to all other information required to be developed under this chapter.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.83, Part 68, Title 40, Code of Federal Regulations.
s 2760.11. Hot Work Permit.
(a) The owner or operator shall issue a hot work permit for hot work operations conducted on or near a covered process.
(b) The permit shall document that the fire prevention and protection requirements in Section 5189 of Title 8 of CCR have been implemented prior to beginning the hot work operations; it shall indicate the date(s) authorized for hot work; and identify the object on which hot work is to be performed. The permit shall be kept on file until completion of the hot work operations.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.85, Part 68, Title 40, Code of Federal Regulations.
s 2760.12. Contractors.
(a) Application. This section applies to contractors performing maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process. It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, delivery or other supply services.
(b) Owner or operator responsibilities.
(1) The owner or operator, when selecting a contractor, shall obtain and evaluate information regarding the contract owner or operator's safety performance and programs.
(2) The owner or operator shall inform the contract owner or operator of the known potential fire, explosion, or toxic release hazards related to the contractor's work and the process.
(3) The owner or operator shall explain to the contract owner or operator the applicable provisions of Article 7.
(4) The owner or operator shall develop and implement safe work practices consistent with Section 2760.3(d), to control the entrance, presence, and exit of the contract owner or operator and contract employees in covered process areas.
(5) The owner or operator shall periodically evaluate the performance of the contract owner or operator in fulfilling their obligations as specified in section (c).
(c) Contract owner or operator responsibilities.
(1) The contract owner or operator shall assure that each contract employee is trained in the work practices necessary to safely perform his or her job.
(2) The contract owner or operator shall assure that each contract employee is instructed in the known potential fire, explosion, or toxic release hazards related to his or her job and the process, and the applicable provisions of the emergency action plan.
(3) The contract owner or operator shall document that each contract employee has received and understood the training required by this section. The contract owner or operator shall prepare a record which contains the identity of the contract employee, the date of training, and the means used to verify that the employee understood the training.
(4) The contract owner or operator shall assure that each contract employee follows the safety rules of the stationary source including the safe work practices required by Section 2760.3(d).
(5) The contract owner or operator shall advise the owner or operator of any unique hazards presented by the contract owner or operator's work, or of any hazards found by the contract owner or operator's work.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.87, Part 68, Title 40, Code of Federal Regulations.
s 2765.1. Emergency Response Applicability.
(a) Except as provided in section (b), the owner or operator of a stationary source with Program 2 and Program 3 processes shall comply with the requirements of Section 2765.2.
(b) The owner or operator of a stationary source whose employees will not respond to accidental releases of regulated substances need not comply with Section 2765.2 provided that they meet the following:
(1) For stationary sources with any regulated toxic substance held in a process above the threshold quantity, the stationary source is included in the community emergency response plan developed under Section 11003 of Title 42 of the United States Code (USC);
(2) For stationary sources with only regulated flammable substances held in a process above the threshold quantity, the owner or operator has coordinated response actions with the local fire department; and,
(3) Appropriate mechanisms are in place to notify emergency responders when there is a need for a response.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.90, Part 68, Title 40, Code of Federal Regulations.
s 2765.2. Emergency Response Program.
(a) The owner or operator shall develop and implement an emergency response program for the purpose of protecting public health and the environment. The emergency response program shall include the following elements:
(1) An emergency response plan, which shall be maintained at the stationary source and contain at least the following elements:
(A) Procedures for informing and interfacing with the public and local emergency response agencies about accidental releases, emergency planning, and emergency response;
(B) Documentation of proper first-aid and emergency medical treatment necessary to treat accidental human exposures; and,
(C) Procedures and measures for emergency response after an accidental release of a regulated substance;
(2) Procedures for the use of emergency response equipment and for its inspection, testing, and maintenance;
(3) Training for all employees in relevant procedures and relevant aspects of the Incident Command System; and,
(4) Procedures to review and update, as appropriate, the emergency response plan to reflect changes at the stationary source and ensure that employees are informed of changes.
(b) A written plan that complies with the contingency plan format developed pursuant to Section 25503.4 of HSC and that, among other matters, includes the elements provided in section (a), shall satisfy the requirements of this section if the owner or operator also complies with section (c). The contingency plan format shall be provided by OES upon request.
(c) The emergency response plan developed under section (a)(1) shall be coordinated with the community emergency response plan developed under Section 11003 of Title 42 of USC. Upon request of the local emergency planning committee or emergency response officials, the owner or operator shall promptly provide to the local emergency response officials information necessary for developing and implementing the community emergency response plan.
(d) The owner or operator is not required to meet the business plan requirements if the emergency response plan developed under this section is consistent with the business plan requirements pursuant to Sections 2731 and 2732 of Title 19 of CCR. This does not exempt the owner or operator from requirements which relate to the annual inventory or emergency response planning for hazardous materials which are not regulated substances.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25531 and 25537.5, Health and Safety Code; and Section 68.95, Part 68, Title 40, Code of Federal Regulations.
s 2770.1. Purpose.
This article lists regulated substances pursuant to Section 2770.5 (Tables 1, 2, or 3), identifies specific threshold quantities, and establishes the requirements for petitioning to add, delete, or change the threshold for regulated substances.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25532(g), (j), and (l), 25543.1 and 25543.3, Health and Safety Code; and Section 68.100, Part 68, Title 40, Code of Federal Regulations.
s 2770.2. Threshold Determination.
(a) A threshold quantity of a regulated substance is present at a stationary source if the total quantity of a regulated substance contained in a process exceeds the threshold listed in Section 2770.5.
(b) For the purpose of determining whether more than a threshold quantity of a regulated substance is present at the stationary source, the following apply:
(1) Concentrations of a regulated toxic substance in a mixture:
(A) A mixture of less than one percent by weight of a regulated toxic substance need not be considered when determining whether more than a threshold quantity is present at the stationary source. A mixture containing a regulated toxic substance is regulated if the concentration of the toxic substance present in the mixture is one percent or greater by weight. The owner or operator of a stationary source shall only consider the weight of the regulated substance in the mixture, not the entire weight of the mixture.
(B) The owner or operator of a stationary source, when determining whether more than a threshold quantity of a regulated toxic substance in a mixture is present at the stationary source, need not consider portions of the process which can be demonstrated to have a partial pressure of the regulated substance in the mixture (solution), under the handling or storage conditions, which is less than 10 millimeters of mercury (mm Hg). The owner or operator of the stationary source shall document any exempted portions of processes where the partial pressure measurements or estimates are less than 10 mm Hg.
(C) The exemption regarding 10 mm Hg of partial pressure in (B) does not apply to:
(i) Regulated substances which are solids as noted in Section 2770.5, Table 3;
(ii) Those regulated substances that failed the evaluation pursuant to Section 25532(g)(2) of HSC as noted in Section 2770.5, Table 3; or,
(iii) Oleum, toluene 2,4-diisocyanate, toluene 2,6-diisocyanate and toluene diisocyanate (unspecified isomer) as noted in Section 2770.5.
(2) Concentrations of a regulated flammable substance in a mixture. A mixture of less than one percent by weight of a regulated flammable substance need not be considered when determining whether more than a threshold quantity is present at the stationary source. Except as provided in Sections (b)(2)(A) and (2)(B) of this section, if the concentration of the substance in the mixture is one percent or greater by weight of the mixture, then, for the purpose of determining whether a threshold quantity is present at the stationary source, the entire weight of the mixture shall be treated as the regulated substance unless the owner or operator can demonstrate that the mixture itself does not have a NFPA flammability hazard rating of 4. The demonstration shall be in accordance with the definition of flammability hazard rating 4 in the NFPA 704, Standard System for the Identification of the Hazards of Materials for Emergency Response, NFPA, Quincy, MA, 1996. (Available from the NFPA, 1 Batterymarch Park, Quincy, MA 02269-9101. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552 (a) and 1 CFR part 51. Copies may be inspected at the Environmental Protection Agency Air Docket (6102), Attn: Docket No. A-96-08, Waterside Mall, 401 M. St. SW., Washington D.C.; or at the Office of Federal Register at 800 North Capitol St., NW, Suite 700, Washington, D.C.) Boiling point and flash point shall be defined and determined in accordance with NFPA 30, Flammable and Combustible Liquids Code, NFPA, Quincy, MA, 1996. (Available from the NFPA, 1 Batterymarch Park, Quincy, MA 02269-9101. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552 (a) and 1 CFR part 51. Copies may be inspected at the Environmental Protection Agency Air Docket (6102), Attn: Docket No. A-96-08, Waterside Mall, 401 M. St. SW., Washington D.C.; or at the Office of Federal Register at 800 North Capitol St., NW, Suite 700, Washington, D.C.) The owner or operator shall document the NFPA flammability hazard rating.
(A) Gasoline. Regulated substances in gasoline, when in distribution or related storage for use as fuel for internal combustion engines, need not be considered when determining whether more than a threshold quantity is present at a stationary source.
(B) Naturally occurring hydrocarbon mixtures. Prior to entry into a natural gas processing plant or a petroleum refining process unit, regulated substances in naturally occurring hydrocarbon mixtures need not be considered when determining whether more than a threshold quantity is present at a stationary source. Naturally occurring hydrocarbon mixtures include any combination of the following: condensate, crude oil, field gas, and produced water, each as defined in Section 2735.3.
(3) Articles. Regulated substances contained in articles need not be considered when determining whether more than a threshold quantity is present at the stationary source.
(4) Uses. Regulated substances, when in use for the following purposes, need not be included in determining whether more than a threshold quantity is present at the stationary source:
(A) Use as a structural component of the stationary source;
(B) Use of products for routine janitorial maintenance;
(C) Use by employees of foods, drugs, cosmetics, or other personal items containing the regulated substance; and,
(D) Use of regulated substances present in process water or non-contact cooling water as drawn from the environment or municipal sources, or use of regulated substances present in air used either as compressed air or as part of combustion.
(5) Activities in laboratories. If a regulated substance is manufactured, processed, or used in a laboratory at a stationary source under the supervision of a technically qualified individual as defined in Section 720.3(ee) of Chapter 1 of Title 40 of CFR, the quantity of the substance need not be considered in determining whether a threshold quantity is present. This exemption does not apply to:
(A) Specialty chemical production;
(B) Manufacture, processing, or use of substances in pilot plant scale operations; and,
(C) Activities conducted outside the laboratory.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25532(j) and (l) and 25543.3, Health and Safety Code; and Section 68.115, Part 68, Title 40, Code of Federal Regulations.
s 2770.3. (Reserved).
s 2770.4. Exemptions.
Agricultural nutrients. Ammonia used as an agricultural nutrient, when held by farmers, is exempt from all provisions of this chapter.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.125, Part 68, Title 40, Code of Federal Regulations.
s 2770.4.1. Exclusion.
Flammable substances used as fuel or held for sale as fuel at retail facilities. A flammable substance listed in Section 2770.5, Table 2, is nevertheless excluded from all provisions of this chapter when the substance is used as a fuel or held for sale as a fuel at a retail facility.
Note: Authority cited: Sections 25531, 25533 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.126, Part 68, Title 40, Code of Federal Regulations.
s 2770.5. List of Substances.
Regulated toxic and flammable substances under Section 112(r) of the federal CAA are the substances listed in Tables 1 and 2. Table 3 lists those regulated substances pursuant to Section 25532(g)(2) of HSC. Threshold quantities for listed toxic and flammable substances are specified in the tables.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25532(g)(2) and 25543.3, Health and Safety Code; and Section 68.130, Part 68, Title 40, Code of Federal Regulations.
s 2775.1. Recordkeeping.
The owner or operator shall maintain records supporting the implementation of this chapter for five years unless otherwise provided in Article 6 of this chapter.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25531, Health and Safety Code; and Section 68.200, Part 68, Title 40, Code of Federal Regulations.
s 2775.2. Audits.
(a) In addition to inspections for the purpose of regulatory development and enforcement of the federal CAA, the AA shall periodically audit RMPs submitted under Article 3 of this chapter to review the adequacy of such RMPs and require revisions of RMPs when necessary to ensure compliance with Article 3 of this chapter. To the extent possible, any audit shall be fully coordinated with the Unified Program elements at a stationary source.
(b) The AA shall select stationary sources for audits based on any of the following criteria:
(1) Accident history of the stationary source;
(2) Accident history of other stationary sources in the same industry;
(3) Quantity of regulated substances present at the stationary source;
(4) Location of the stationary source and its proximity to the public and environmental receptors;
(5) The presence of specific regulated substances;
(6) The hazards identified in the RMP; and,
(7) A plan providing for neutral, random oversight.
(c) Exemption from audits. A stationary source with a Star or Merit ranking under OSHA's voluntary protection program shall be exempt from audits under sections (b)(2) and (b)(7).
(d) In accordance with Section 25534.5 of HSC, the AA shall have access to the stationary source, supporting documentation, and any area where an accidental release could occur.
(e) Based on the audit, the AA may issue the owner or operator of a stationary source a written preliminary determination of necessary revisions to the stationary source's RMP to ensure that the RMP meets the criteria of Article 3 of this chapter. The preliminary determination shall include an explanation for the basis for the revisions, reflecting industry standards and guidelines (such as AIChE/CCPS guidelines and ASME and API standards) to the extent that such standards and guidelines are applicable, and shall include a timetable for their implementation.
(f) Written response to a preliminary determination.
(1) The owner or operator shall respond in writing to a preliminary determination made in accordance with section (e). The response shall state that the owner or operator will implement the revisions contained in the preliminary determination in accordance with the timetable included in the preliminary determination or shall state that the owner or operator rejects the revisions in whole or in part. For each rejected revision, the owner or operator shall explain the basis for rejecting such revision. Such explanation may include substitute revisions.
(2) The written response under section (f)(1) shall be received by the AA within 90 days of the issue of the preliminary determination or a shorter period of time as the AA specifies in the preliminary determination as necessary to protect public health and the environment. Prior to the written response being due and upon written request from the owner or operator, the AA may provide in writing additional time for the response to be received.
(g) After providing the owner or operator an opportunity to respond under section (f), the AA may issue the owner or operator a written final determination of necessary revisions to the stationary source's RMP. The AA shall develop a time table for implementing these revisions in consultation with the stationary source. The final determination may adopt or modify the revisions contained in the preliminary determination under section (e) or may adopt or modify the substitute revisions provided in the response under section (f). A final determination that adopts a revision rejected by the owner or operator shall include an explanation of the basis for the revision. A final determination that does not adopt a substitute revision provided under section (f) shall include an explanation of the basis for finding such substitute revision unreasonable.
(h) Thirty days after completion of the actions detailed in the implementation schedule set in the final determination under section (g), the owner or operator shall be in violation of Article 3 of this chapter and this section unless the owner or operator revises the RMP.
(i) The public shall have access to the preliminary determinations, responses, and final determinations under this section in a manner consistent with Section 2775.5.
(j) Nothing in this section shall preclude, limit, or interfere in any way with the authority of USEPA or the state to exercise its enforcement, investigatory, and information gathering authorities under the federal CAA or the HSC.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25534.05, 25534.5, and 25537, Health and Safety Code; and Section 68.220, Part 68, Title 40, Code of Federal Regulations.
s 2775.3. Inspections.
The AA shall inspect every stationary source required to be registered pursuant to this chapter at least once every three years to determine whether the stationary source is in compliance with this chapter. The requirements of this section do not alter or affect the immunity provided a public entity pursuant to Section 818.6 of the Government Code. To the extent possible, any CalARP program inspections shall be coordinated with the Unified Program.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25534.5, 25537, 25540.5, and 25541.3, Health and Safety Code; and Sections 68.215 and 68.210, Part 68, Title 40, Code of Federal Regulations.
s 2775.4. Enforcement.
The owner or operator of a stationary source who violates the statutes or regulations established for the CalARP program may be liable for penalties or enforcement pursuant to provisions in Article 2 of Chapter 6.95 of the HSC beginning with Section 25540.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25534.5, 25537, 25540.5 and 25541.3, Health and Safety Code; and Sections 68.215 and 68.220, Part 68, Title 40, Code of Federal Regulations.
s 2775.5. Availability of Information to the Public.
(a) The RMP required under Article 3 of this chapter shall be available to the public pursuant to Section 25534.05(a)(4) of HSC.
(b) The disclosure of classified information by the Department of Defense or other federal agencies or contractors of such agencies shall be controlled by applicable laws, regulations, or executive orders concerning the release of classified information.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference:Sections 25534.05(a), 25535.2 and 25538, Health and Safety Code; and Section 68.210, Part 68, Title 40, Code of Federal Regulations.
s 2775.6. Permit Content and Air Permitting Authority or OES Requirements.
The requirements of this section apply to any stationary source subject to Section 2735.4(a)(1) of this chapter and Part 70 or 71 of Title 40 of CFR.
(a) The Part 70 or 71 of Title 40 of CFR permit for the stationary source shall contain:
(1) A statement listing Part 68 of Title 40 of CFR as an applicable requirement;
(2) Conditions that require the source owner or operator to submit:
(A) A compliance schedule for meeting the requirements of this chapter by the date provided in Section 2735.4(a)(1), or,
(B) As part of the compliance certification submitted under Section 70.6(c)(5) of Title 40 of CFR, a certification statement that the source is in compliance with all requirements of this chapter, including the registration and submission of the RMP.
(b) The owner or operator shall submit any additional relevant information requested by the AA, OES or the appropriate APCD or AQMD.
(c) For Part 70 or 71 of Title 40 of CFR permits issued prior to the deadline for registering and submitting the RMP and which do not contain permit conditions described in section (a), the owner or operator or the appropriate APCD or AQMD shall initiate permit revision or reopening according to the procedures of Part 70.7 or 71.7 of Title 40 of CFR to incorporate the terms and conditions consistent with section (a).
(d) The appropriate APCD or AQMD shall, at a minimum:
(1) Verify from the AA that the source owner or operator has registered and submitted an RMP or a revised plan when required by this chapter;
(2) Verify from the AA that the source owner or operator has submitted a source certification or in its absence has submitted a compliance schedule consistent with section (a)(2); and,
(3) Initiate enforcement action based on sections (d)(1) and (d)(2) as appropriate. The AQMD or APCD shall notify the AA and the AA shall notify OES of enforcement actions taken pursuant to this chapter.
(e) The fact that an owner or operator of a stationary source is subject to this chapter due to applicability under Section 2734.4(a)(2) shall not in itself subject the stationary source to the requirements of Part 70 or 71 of Title 40 of CFR.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25533(b), 25535(a) and 25540.5, Health and Safety Code; and Section 68.215, Part 68, Title 40, Code of Federal Regulations.
s 2780.1. Dispute Resolution.
(a) Disputes arising between the owner or operator of a stationary source and an AA under this chapter shall first be decided by the AA pursuant to a dispute resolution process. Each AA shall establish procedures necessary to implement this dispute resolution process. These procedures shall:
(1) Provide that the owner or operator of a stationary source may initiate the dispute resolution process by serving the AA with prompt, written notice of a dispute;
(2) Identify the official(s) or other employee(s) of the AA who will resolve disputes arising under this Section;
(3) Set procedures and timetables for providing argument and supporting materials to the AA;
(4) Require that the AA render a written decision within 120 days after the owner or operator of a stationary source initiates the dispute resolution process; and,
(5) Use the CUPA dispute resolution process, if the AA is also a CUPA, providing that such process is consistent with the criteria in (a)(1) through (4) above.
(b) The owner or operator of a stationary source may appeal the decision of an AA to the Director of OES by serving the Director with written notice of appeal. The notice of appeal shall be accompanied by:
(1) A copy of the decision of the AA,
(2) A copy of any written material that the owner or operator submitted to the AA during the dispute resolution process that the stationary source would want the Director to consider, and,
(3) A concise statement of the grounds upon which the owner or operator disputes the decision rendered by the AA. The notice of appeal and accompanying materials shall be served on the Director and the AA by certified mail, return receipt requested. Such service shall be effected no later than 30 days after the AA renders its decision, or, if the AA fails to render a timely decision, no later than 150 days after the owner or operator initiated the dispute resolution process with the AA.
(c) After receipt of the notice of appeal and accompanying materials, the Director shall provide a written acknowledgment of such receipt to the appealing party and the AA. At the time that the Director sends this acknowledgment, or at any later time, the Director, in his or her discretion, may request further materials, information or briefing from the stationary source or the AA, and the Director may set schedules for the submission of such materials, information or briefing. The Director shall also provide the opportunity for public comment on the dispute, and shall allow the stationary source and the AA the opportunity to respond to any comments submitted by the public.
(d) Within 120 days after the service of the notice of appeal, or, if the Director requires additional time in order to deal with the submission of materials, information, briefing, public comments or responses to public comments, within such extended time as is set by the Director, the Director shall issue his or her decision. The dispute shall be resolved according to the discretion of the Director. The Director's decision shall be binding on all parties.
(e) Exhaustion of this dispute resolution process shall not be a prerequisite to the initiation, prosecution or conclusion of any criminal or civil enforcement action brought by the AA, the District Attorney or the State pursuant to Sections 25540, 25540.5, 25541, 25541.3, 25541.5 of HSC or any other provision of law.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25534.05(a)(3), Health and Safety Code.
s 2780.2. Administering Agency Compliance.
Each AA shall comply with the regulations adopted in this chapter, unless OES assumes authority pursuant to Section 2780.6(c)(1)(D)(ii).
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Sections 25533(d) and 25534.05(e), Health and Safety Code.
s 2780.3. Maintenance of Administering Agency Authorization and Reporting.
In assessing the performance of an AA, OES shall consider the following:
(a) Effectiveness of the AA program to ensure stationary source participation.
(b) Effectiveness of the procedures for records management.
(c) Type and amount of technical assistance provided to stationary sources.
(d) Stationary source inspections which are conducted to ensure compliance with this program.
(e) The AA process for public participation.
(f) Other required program elements necessary to implement and manage this program.
(g) Comments from interested parties regarding the effectiveness of the local program that raise public safety issues.
(h) The impact of the CalARP in reducing/eliminating significant releases.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25533(e), Health and Safety Code.
s 2780.4. Coordination with the Unified Program.
(a) OES shall consider the standards under Section 2780.3 to support OES recommendations to the Secretary for Environmental Protection regarding local agency certification for the Unified Program pursuant to Section 25404.3 of HSC.
(b) As part of the periodic review requirement, OES shall consider the requirements of Section 2780.3 and Section 25404.4 of HSC.
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25404.3, Health and Safety Code.
s 2780.5. Performance Audit Submission.
(a) Beginning in fiscal year 1998 (July 1, 1998 - June 30, 1999), the AA shall annually conduct an audit of its activities to implement the Cal-ARP program. This audit is subject to the periodic review carried out pursuant to Section 25404.4(a)(1) of HSC.
(b) An audit report shall be compiled annually based upon the previous fiscal year's activities and shall contain an executive summary and a brief description of how the AA is meeting the requirements of the program as listed in Section 2780.3. The audit shall include but is not limited to the following information:
(1) a listing of stationary sources which have been audited.
(2) a listing of stationary sources which have been requested to develop RMPs.
(3) a listing of stationary sources which have been inspected.
(4) a listing of stationary sources which have received public comments on the RMP.
(5) a list of new or modified stationary sources.
(6) a summary of enforcement actions initiated by the AA identifying each stationary source.
(7) a summary of the personnel and personnel years necessary to directly implement, administer, and operate the CalARP program.
(8) a list of those stationary sources determined by the AA to be exempt from the chapter pursuant to Section 25534(b)(2).
Note: Authority cited: Sections 25531 and 25534.05, Health and Safety Code. Reference: Section 25533(e), Health and Safety Code.
s 2780.6. Administering Agency Performance Evaluations.
(a) OES shall periodically review the AAs performance to ensure their ability to carry out the requirements of the CalARP program pursuant to the requirements of Article 2, Chapter 6.95, of HSC and these regulations. This review shall be closely coordinated with the Unified Program periodic review process, pursuant to Section 25404.4 of HSC.
(b) Administering Agencies shall be reviewed using the standards adopted in Sections 2780.3 and 2780.5 of these regulations.
(c) If OES determines that an AA has failed to meet the performance requirements of subdivision (b), OES shall, as appropriate, initiate one of the following two processes:
(1) Process 1: Assumption of Authority by OES. OES shall serve the AA with a written Notice of Intent to Exercise Specific Powers (NOIESP), which shall inform the AA of the Director's intent to implement the CalARP program in the local jurisdiction pursuant to Section 25533(e) of HSC. The NOIESP shall state (i) the powers of the AA that OES will exercise; (ii) the date on which the exercise of authority shall commence; and, (iii) the reasons it is necessary for OES to assume this authority.
(A) Response to the NOIESP. Within 60 days after receipt of the NOIESP, the AA shall respond by: accepting the terms of the NOIESP; appealing the NOIESP; or submitting a proposed Program Improvement Agreement (PIA). If the AA fails to respond fully to the NOIESP within 60 days, the AA will be deemed to have accepted the terms of the NOIESP.
(i) Acceptance of the NOIESP. The AA may accept the assumption of authority described in the NOIESP by serving OES with written notice of such acceptance. After the AA accepts, or is deemed to have accepted, the terms of the NOIESP, OES shall schedule a public hearing pursuant to the terms of section (c)(1)(C).
(ii) Appeal. The AA may appeal the NOIESP by serving OES with: a written explanation of the factual or legal grounds for its appeal; any written supporting argument; and any relevant documentary evidence. After receipt of the appeal, OES shall follow the procedures set forth in section (c)(1)(B).
(iii) Submission of an PIA. The AA may respond to the NOIESP by serving OES with a proposed PIA. After reviewing the proposed PIA, OES shall either accept the PIA and follow the procedures set forth in section (c)(2) or reject the proposal and schedule a public hearing pursuant to the terms of section (c)(1)(C).
(B) Appeal Procedures. If the AA appeals the NOIESP, OES shall review the appeal to determine whether the AA has made a sufficient showing to warrant the reversal or modification of OES' original decision. Upon completion of this review, OES shall affirm, modify, or reverse its original decision. OES shall make its resolution of the appeal available to the public.
(i) Affirmance. If OES affirms its original decision, it shall schedule a public hearing addressing its proposed exercise of the powers of the AA. This hearing will be conducted pursuant to section (c)(1)(C).
(ii) Reversal. If OES reverses its decision, OES shall serve the AA with written notice that the NOIESP has been withdrawn.
(iii) Modification. If, based on the appeal, OES decides to modify its original decision, OES shall (1) serve the AA with an amended NOIESP, specifying he powers OES intends to exercise; and (2) schedule a public hearing on this exercise of powers. This hearing will be conducted pursuant to section (c)(1)(C).
(C) Public Hearing Procedures. In the event that a public hearing is required under this section, the following procedures shall be employed:
(i) The hearing shall be conducted in the jurisdiction of the AA that received the NOIESP.
(ii) A notice of public hearing shall be published in a local newspaper. Notice of the hearing shall be served on the AA.
(iii) Within thirty days after the public hearing, the AA shall review the public hearing comments and serve OES with its responses, if any, to the comments presented at the public hearing.
(D) OES shall within 60 days review the comments presented at the public hearing and any responses submitted by the AA. Based upon this review, and after consulting with the Secretary, OES, shall do one of the following:
(i) Approve the continued implementation of the program by the AA;
(ii) Assume authority to exercise the powers of the AA; or,
(iii) Refer the matter to the Secretary, as specified in section (c)(2),with the recommendation for an PIA or decertification of the AA.
(E) In the event that OES assumes authority to exercise the powers of the AA, the AA shall, upon request, provide OES with all relevant records and documents.
(2) Process 2: Referral to the Secretary. As an alternative to the procedures set forth in subsection (c)(1), OES may refer the matter to the Secretary with a written recommendation that the Secretary institute proceedings to either: require the AA to enter into an PIA, or, decertify the AA pursuant to Section 25404.4(a), Chapter 6.11 of HSC. (continued)