A.R.S. tit. 49 ch. 3 — Arizona Revised Statutes Title 49 Chapter 3 — Air Quality

49-401. Declaration of policy A. The legislature finds and declares that air pollution exists with varying degrees of severity within the state, such air pollution is potentially and in some cases actually dangerous to the health of the citizenry, often causes physical discomfort, injury to property and property values, discourages recreational and other uses of the state's resources and is esthetically unappealing. The legislature by this act intends to exercise the police power of this state in a coordinated state-wide program to control present and future sources of emission of air contaminants to the end that air polluting activities of every type shall be regulated in a manner that insures the health, safety and general welfare of all the citizens of the state; protects property values and protects plant and animal life. The legislature further intends to place primary responsibility for air pollution control and abatement in the department of environmental quality and the hearing board created thereunder. However, counties shall have the right to control local air pollution problems as specifically provided herein. B. It is further declared to be the policy of this state that no further degradation of the air in the state of Arizona by any industrial polluters shall be tolerated. Those industries emitting pollutants in the excess of the emission standard set by the director of environmental quality shall bring their operations into conformity with the standards with all due speed. A new industry hereinafter established shall not begin normal operation until it has secured a permit attesting that its operation will not cause pollution in excess of the standards set by the director of environmental quality. 49-401.01. Definitions In this chapter, unless the context otherwise requires: 1. "Administrator" means the administrator of the United States environmental protection agency. 2. "Adverse effects to human health" means those effects that result in or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, including adverse effects that are known to be or may reasonably be anticipated to be caused by substances that are acutely toxic, chronically toxic, carcinogenic, mutagenic, teratogenic, neurotoxic or causative of reproductive dysfunction. 3. "Adverse environmental effect" means any significant and widespread adverse effect that may reasonably be anticipated on wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas. 4. "Arizona Grand Canyon visibility transport commission class I areas" means the following four mandatory federal class I areas in this state that were the subject of recommendations made by the Grand Canyon visibility transport commission pursuant to the clean air act: (a) Grand Canyon national park. (b) Petrified Forest national park. (c) Sycamore Canyon Wilderness. (d) Mount Baldy Wilderness. 5. "Arizona mandatory federal class I areas" means the following eight national parks and wilderness areas that are designated as mandatory federal class I areas in this state pursuant to the clean air act and does not include the Arizona Grand Canyon visibility transport commission class I areas: (a) Pine Mountain Wilderness. (b) Mazatzal Wilderness. (c) Sierra Ancha Wilderness. (d) Superstition Wilderness. (e) Saguaro Wilderness. (f) Galiuro Wilderness. (g) Chiricahua Wilderness. (h) Chiricahua National Monument Wilderness. 6. "Attainment area" means any area in this state that has been identified in regulations promulgated by the administrator as being in compliance with national ambient air quality standards. 7. "Begin actual construction" means initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. With respect to a change in method of operation, this term refers to those on-site activities, other than preparatory activity, which mark the initiation of the change: (a) For purposes of title I, parts C and D and section 112 of the clean air act and for purposes of applicants that require permits containing limits designed to avoid the application of title I, parts C and D and section 112 of the clean air act, these activities include installation of building supports and foundations, laying of underground pipework and construction of permanent storage structures but do not include any of the following, subject to section 49-427, subsection D: (i) Clearing and grading, including demolition and removal of existing structures and equipment, stripping and stockpiling of topsoil. (ii) Installation of access roads, driveways and parking lots. (iii) Installation of ancillary structures, including fences, office buildings and temporary storage structures, that are not a necessary component of an emissions unit or associated air pollution control equipment for which the permit is required. (iv) Ordering and on-site storage of materials and equipment. (b) For purposes other than for those applicants prescribed in subdivision (a) of this paragraph, these activities do not include the following, subject to section 49-427, subsection D: (i) Clearing and grading, including demolition and removal of existing structures and equipment, stripping and stockpiling of topsoil and earthwork cut and fill for foundations. (ii) Installation of access roads, parking lots, driveways and storage areas. (iii) Ordering and on-site storage of materials and equipment. (iv) Installation of underground pipework, including water, sewer, electric and telecommunications utilities. (v) Installation of ancillary structures, including fences, warehouses, storerooms and office buildings, provided none of these structures impact the design of any emissions unit or associated air pollution control equipment. (vi) Installation of building and equipment supports, including concrete forms, footers, pilings, foundations, pads and platforms, provided none of these supports impact the design of any emissions unit or associated air pollution control equipment. 8. "Building", "structure", "facility" or "installation" means all of the pollutant-emitting activities that belong to the same industrial grouping, are located on one or more contiguous or adjacent properties and are under the control of the same person or persons under common control except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same major group that has the same two digit code, as described in the standard industrial classification manual, 1972, as amended by the 1977 supplement. 9. "Clean air act" means the clean air act of 1963 (P.L. 88-206; 42 United States Code sections 7401 through 7671) as amended by the clean air act amendments of 1990 (P.L. 101-549). 10. "Commence" means, as applied to construction of a source: (a) For purposes other than title IV of the clean air act, that the owner or operator has obtained all necessary preconstruction approval or permits required by federal law and this chapter and has done either of the following: (i) Begun or caused to begin a continuous program of physical on-site construction of the source to be completed within a reasonable time. (ii) Entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of construction of the source to be completed within a reasonable time. (b) For purposes of title IV of the clean air act, that the owner or operator has undertaken a continuous program of construction or that an owner or operator has entered into a contractual obligation to undertake and complete within a reasonable time a continuous program of construction. 11. "Construction" means any physical change in a source or change in the method of operation of a source including fabrication, erection, installation or demolition of a source that would result in a change in actual emissions. 12. "Conventional air pollutant" means any pollutant for which the administrator has promulgated a primary or secondary national ambient air quality standard. 13. "Federally listed hazardous air pollutant" means any air pollutant adopted pursuant to section 49-426.03, subsection A and not deleted pursuant to that subsection. 14. "Grand Canyon visibility transport commission" means the visibility transport commission established pursuant to section 169B of the clean air act for the region affecting the visibility of the Grand Canyon national park. 15. "Grand Canyon visibility transport commission class I areas" means the following sixteen mandatory federal class I areas in the region of Grand Canyon national park that were the subject of recommendations by the Grand Canyon visibility transport commission pursuant to the clean air act: (a) Grand Canyon national park in Arizona. (b) Sycamore Canyon Wilderness in Arizona. (c) Petrified Forest national park in Arizona. (d) Mount Baldy Wilderness in Arizona. (e) San Pedro Parks Wilderness in New Mexico. (f) Mesa Verde national park in Colorado. (g) Weminuche Wilderness in Colorado. (h) Black Canyon of the Gunnison Wilderness in Colorado. (i) West Elk Wilderness in Colorado. (j) Maroon Bells-Snowmass Wilderness in Colorado. (k) Flat Tops Wilderness in Colorado. (l) Arches national park in Utah. (m) Canyonlands national park in Utah. (n) Capitol Reef national park in Utah. (o) Bryce Canyon national park in Utah. (p) Zion national park in Utah. 16. "Hazardous air pollutant" means any federally listed hazardous air pollutant and any air pollutant that the director has designated as a hazardous air pollutant pursuant to section 49-426.04, subsection A and has not deleted pursuant to section 49-426.04, subsection B. 17. "Hazardous air pollutant reasonably available control technology" means an emissions standard for hazardous air pollutants that the director, acting pursuant to section 49-426.06, subsection C, or the control officer, acting pursuant to section 49-480.04, subsection C, determines is reasonably available for a source. In making the foregoing determination the director or control officer shall take into consideration the estimated actual air quality impact of the standard, the cost of complying with the standard, the demonstrated reliability and widespread use of the technology required to meet the standard and any non-air quality health and environmental impacts and energy requirements. For the purposes of this definition, an emissions standard may be expressed as a numeric emissions limitation or as a design, equipment, work practice or operational standard. 18. "Maintenance area" means any nonattainment area that has been redesignated by the administrator to attainment status. 19. "Major source" means a stationary source or a group of stationary sources that is located within a contiguous area, that is under common control and that is defined as a major source in section 501(2) of the clean air act or that is a major emitting facility as defined in title I, part C of the clean air act or that is defined in department rules as a major source consistent with the clean air act. 20. "Mandatory federal class I areas" means those national parks, monuments and wilderness areas that are included in 40 Code of Federal Regulations sections 81.400 through 81.436 pursuant to the clean air act. 21. "Maximum achievable control technology" means an emission standard that requires the maximum degree of reduction in emissions of the hazardous air pollutants subject to this chapter, including a prohibition on such emissions where achievable, and that the director, after considering the cost of achieving such emission reduction and any non-air quality health and environmental impacts and energy requirements, determines to be achievable by an affected source to which such standard applies, through application of measures, processes, methods, systems or techniques including measures that: (a) Reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications. (b) Enclose systems or processes to eliminate emissions. (c) Collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point. (d) Are design, equipment, work practice, or operational standards, including requirements for operator training or certification. (e) Are a combination of the above. 22. "Minor source" means any stationary or portable source that is not a major source. 23. "Mobile source" means any combustion engine, device, machine or equipment that operates during transport and that emits or generates air contaminants whether in motion or at rest. 24. "Modification" or "modify" means a physical change in or change in the method of operation of a source that increases the emissions of any regulated air pollutant emitted by such source by more than any relevant de minimis amount or that results in the emission of any regulated air pollutant not previously emitted by more than such de minimis amount. An increase in emissions at a minor source shall be determined by comparing the source's potential to emit before and after the modification. The following exemptions apply: (a) A physical or operational change does not include routine maintenance, repair or replacement. (b) An increase in the hours of operation or if the production rate is not considered an operational change unless such increase is prohibited under any federally enforceable permit condition or other permit condition that is enforceable as a practical matter. (c) A change in ownership at a source is not considered a modification. 25. "National ambient air quality standard" means the ambient air pollutant concentration limits established by the administrator pursuant to 42 United States Code section 7409. 26. "Nonattainment area" means any area in this state that is designated as prescribed by section 49-405 and where violations of national ambient air quality standards have been measured. 27. "Nonattainment area plan" means an air pollution control plan developed in accordance with 42 United States Code sections 7501 through 7515. 28. "Permitting authority" means the department or a county department or agency that is charged with enforcing a permit program adopted pursuant to section 49-480, subsection A. 29. "Planning agency" means an organization designated by the governor pursuant to 42 United States Code section 7504. 30. "Portable source" means any stationary source that is capable of being transported and operated in more than one county of this state. 31. "Potential to emit" means the maximum capacity of a stationary source to emit a pollutant, excluding secondary emissions, under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is enforceable as a practical matter. 32. "Primary standard attainment date" means the date defined within a nonattainment area plan in accordance with 42 United States Code sections 7401 through 7515 or applicable regulations adopted by the United States environmental protection agency by January 1, 1999 and after which date primary national ambient air quality standards may not be violated. 33. "Reasonable further progress" means the schedule of emission reductions defined within a nonattainment area plan as being necessary to come into compliance with a national ambient air quality standard by the primary standard attainment date. 34. "Source" means any building, structure, facility or installation that may cause or contribute to air pollution or the use of which may eliminate, reduce or control the emission of air pollution. 35. "State implementation plan" means the accumulated record of enforceable air pollution control measures, programs and plans adopted by the director and submitted to the administrator pursuant to 42 United States Code section 7410. 36. "Stationary source" means any facility, building, equipment, device or machine that operates at a fixed location and that emits or generates air contaminants. 37. "Unclassifiable area" means all areas of this state for which inadequate ambient air quality data exist to determine compliance with the national ambient air quality standards. 49-402. State and county control A. Except as provided in subsection G of this section, the department shall have original jurisdiction over such sources, permits and violations that pertain to: 1. Major sources in any county that has not received approval from the administrator for new source review under the clean air act and prevention of significant deterioration under the clean air act. 2. Smelting of metal ore. 3. Petroleum refineries. 4. Coal fired electrical generating stations. 5. Portland cement plants. 6. Air pollution by portable sources. 7. Air pollution by mobile sources for the purpose of regulating those sources as prescribed by article 5 of this chapter and consistent with the clean air act. 8. Sources that are subject to title V of the clean air act and that are located in a county for which the administrator has disapproved that county's title V permit program if the department has a title V program that has been approved by the administrator. On approval of that county's title V permit program by the administrator, the county shall resume jurisdiction over those sources. B. Except as specified in subsection A of this section, the review, issuance, administration and enforcement of permits issued pursuant to this chapter shall be by the county or multi-county air quality control region pursuant to the provisions of article 3 of this chapter. After the director has provided prior written notice to the control officer describing the reason for asserting jurisdiction and has provided an opportunity to confer, the county or multi-county air quality control region shall relinquish jurisdiction, control and enforcement over such permits as the director designates and at such times as the director asserts jurisdiction at the state level. The order of the director that asserts state jurisdiction shall specify the matters, geographical area, or sources over which the department shall exercise jurisdiction and control. Such state authority shall then be the sole and exclusive jurisdiction and control to the extent asserted, and this chapter shall govern, except as provided in this chapter, until jurisdiction is surrendered by the department to such county or region. C. Portable sources under jurisdiction of the department under subsection A, paragraph 6 of this section may be required to file notice with the director and the control officer who has jurisdiction over the geographic area that includes the new location before beginning operations at that new location. D. Notwithstanding any other law, a permit issued to a state-regulated source shall include the emission standard or standard of performance adopted pursuant to section 49-479, if such standards are more stringent than those adopted by the director and if such standards are specifically identified as applicable to the permitted source or a component of the permitted source. Such standards shall be applied to sources identified in subsection A, paragraph 2, 3, 4 or 5 of this section only if the standard is formally proposed for adoption as part of the state implementation plan. E. The regional planning agency for each county that contains a vehicle emissions control area shall develop plan revisions containing transportation-related air quality control measures designed to attain and maintain primary and secondary ambient air quality standards as prescribed by and within the time frames specified in the clean air act. In developing the plan revisions, the regional planning agency shall consider all of the following: 1. Mandatory employee parking fees. 2. Park and ride programs. 3. Removal of on-street parking. 4. Ride share programs. 5. Mass transit alternatives. 6. Expansion of public transportation systems. 7. Optimizing freeway ramp metering. 8. Coordinating traffic signal systems. 9. Reduction of traffic congestion at major intersections. 10. Site-specific transportation control measures. 11. Reversible lanes. 12. Fixed lanes for buses and carpools. 13. Encouragement of pedestrian travel. 14. Encouragement of bicycle travel. 15. Development of bicycle travel facilities. 16. Employer incentives regarding ride share programs. 17. Modification of work schedules. 18. Strategies for controlling the generation of air pollution by nonresidents of nonattainment or maintenance areas. 19. Use of alternative fuels. 20. Use of emission control devices on public diesel powered vehicles. 21. Paving of roads. 22. Restricting off-road vehicle travel. 23. Construction site air pollution control. 24. Other air quality control measures. F. Each regional planning agency shall consult with the department of transportation to coordinate the plans developed pursuant to subsection E of this section with transportation plans developed by the department of transportation pursuant to any other law. G. After receiving a voluntary request from an applicant, a county may claim concurrent jurisdiction over both of the following for the sole purpose of issuing, revising or enforcing a permit to certify emission reduction credits pursuant to section 49-410: 1. Components of a portable source within the county's jurisdiction. 2. Mobile sources within the county's jurisdiction. H. Notwithstanding any other law, an applicant's election to participate in any program that results in the certification of emission reduction credits pursuant to subsection G of this section is voluntary. If, after September 12, 2026, participation of an on-road vehicle fleet in the emission reduction credit program becomes mandatory pursuant to an act of the legislature, administrative rule or state implementation plan commitments, a control officer may not certify any new surplus emission reduction credits as provided in subsection G, paragraph 2 of this section. Only mobile source fleets with a base of operations in a nonattainment area are eligible for certification pursuant to subsection G, paragraph 2 of this section. I. After a county issues a permit or permit revision that certifies emission reduction credits pursuant to subsection G of this section, the permit or permit revision are binding on the applicant. 49-403. General permits and individual permits; issuance; definition A. A person may petition the director or control officer for a determination that a particular class or category of sources should be subject to a general permit instead of an individual permit that is issued under this chapter. The petition shall state the grounds for the determination that is the subject of the petition, including how the class or category meets the criteria prescribed in the applicable statute or rule for a general permit. The director or control officer shall either grant or deny the petition within sixty days after its receipt. If the petition is granted, the director or control officer shall initiate the formal process for issuing the general permit within six months. If the petition is denied, the denial is an appealable agency action pursuant to title 41, chapter 6, article 10. B. For the purposes of this section, "general permit" has the same meaning prescribed in section 41-1001. 49-404. State implementation plan A. The director shall maintain a state implementation plan that provides for implementation, maintenance and enforcement of national ambient air quality standards and protection of visibility as required by the clean air act. B. The director may adopt rules that describe procedures for adoption of revisions to the state implementation plan. C. The state implementation plan and all revisions adopted before September 30, 1992 remain in effect according to their terms, except to the extent otherwise provided by the clean air act, inconsistent with any provision of the clean air act, or revised by the administrator. No control requirement in effect, or required to be adopted by an order, settlement agreement or plan in effect, before the enactment of the clean air act in any area which is a nonattainment or maintenance area for any air pollutant may be modified after enactment in any manner unless the modification insures equivalent or greater emission reductions of the air pollutant. The director shall evaluate and adopt revisions to the plan in conformity with federal regulations and guidelines promulgated by the administrator for those purposes until the rules required by subsection B are effective. 49-405. Attainment area designations A. The governor may designate the status and classification of areas of this state with respect to attainment of national ambient air quality standards. B. The director shall adopt rules that describe the geographic extent of attainment, nonattainment or unclassifiable areas of this state for all pollutants for which a national ambient air quality standard exists. C. On promulgation by the administrator of new or revised national ambient air quality standards for pollutants, the department shall develop proposed recommendations regarding designations for geographic areas of this state as being in attainment or nonattainment or unclassifiable with respect to that standard. The proposed recommendations shall be provided to the governor to assist the governor in submitting recommendations to the administrator pursuant to 42 United States Code section 7407(d)(1)(A). The department shall develop the proposed recommendations as follows: 1. Not earlier than five months before the date by which the governor must make the recommendations and not later than four months before that date, the department shall complete a draft of the proposed recommendations and a technical support document that explains the scientific and other bases for the draft proposal. 2. Not earlier than five months before the date by which the governor must make the recommendations and not later than four months before that date, the department shall post the draft proposed recommendations and technical support document on the department's website. The department shall provide actual notice of the posting to counties and municipalities that would be included in a nonattainment area under the proposed recommendations and to any person who had previously requested actual notice of the draft documents. Actual notice of the posting may be provided by electronic or other means. 3. The website posting and actual notices prescribed in paragraph 2 of this subsection shall include notice that until the close of the comment period, any person may submit written comments to the department regarding the draft proposed recommendations and technical support document. The notice shall also include the date, time and location of a public hearing for the department to receive verbal comments and answer questions concerning the draft proposal. The written comment period shall close and the hearing shall be held not later than forty-six days before the date by which the governor must make the recommendations. 4. After the close of the comment period and after the public hearing and not later than one month before the date by which the governor must make the recommendations, the department shall finalize the proposed recommendations and technical support document and submit them to the governor. The department's final proposed recommendations and technical support document shall: (a) Consider the comments received by the department pursuant to paragraph 3 of this subsection. For any area that is proposed to be designated a nonattainment area in the final proposed recommendations, the department shall with the submittal to the governor include a responsiveness summary that explains with reasonable particularity the department's consideration of and responses to comments received pursuant to paragraph 3 of this subsection. (b) Be posted on the department's website within five days after the department's submittal to the governor. The posting shall include any responsiveness summary, and the department shall provide actual notice of the posting to counties and municipalities that would be included in a nonattainment area under the final proposed recommendations and to any person who had previously requested actual notice of the documents. Actual notice of the posting may be provided by electronic or other means. D. The department shall post on its website a copy of the governor's recommendations within five days after the recommendations are submitted to the administrator. E. If the administrator requires the governor's recommendations to be submitted six months after promulgation of the new or revised national ambient air quality standards or earlier, the time frames prescribed in subsections C and D shall be reduced by one-half. 49-406. Nonattainment area plan A. For any ozone, carbon monoxide or particulate nonattainment or maintenance area the governor shall certify the metropolitan planning organization designated to conduct the continuing, cooperative and comprehensive transportation planning process for that area under 23 United States Code section 134 as the agency responsible for the development of a nonattainment or maintenance area plan for that area. B. For any ozone, carbon monoxide or particulate nonattainment or maintenance area for which no metropolitan planning organization exists, the department shall be certified as the agency responsible for development of a nonattainment or maintenance area plan for that area. C. For any ozone, carbon monoxide or particulate nonattainment or maintenance area, the department, the planning agency certified pursuant to subsection A of this section on behalf of elected officials of affected local government, the county air pollution control department or district, and the department of transportation shall, by November 15, 1992, and from time to time as necessary, jointly review and update planning procedures or develop new procedures. D. In preparing the procedures described in subsection C of this section, the department, the planning agency certified pursuant to subsection A of this section on behalf of elected officials of affected local government, the county air pollution control department or district, and the department of transportation shall determine which elements of each revised implementation plan will be developed, adopted, and implemented, through means including enforcement, by the state and which by local governments or regional agencies, or any combination of local governments, regional agencies or the state. E. The department, the planning agency certified pursuant to subsection A of this section on behalf of elected officials of affected local government, the county air pollution control department or district, and the department of transportation shall enter into a memorandum of agreement for the purpose of coordinating the implementation of the procedures described in subsection C and D of this section. F. At a minimum, the memorandum of agreement shall contain: 1. The relevant responsibilities and authorities of each of the coordinating agencies. 2. As appropriate, procedures, schedules and responsibilities for development of nonattainment or maintenance area plans or plan revisions and for determining reasonable further progress. 3. Assurances for adequate plan implementation. 4. Procedures and responsibilities for tracking plan implementation. 5. Responsibilities for preparing demographic projections including land use, housing, and employment. 6. Coordination with transportation programs. 7. Procedures and responsibilities for adoption of control measures and emissions limitations. 8. Responsibilities for collecting air quality, transportation and emissions data. 9. Responsibility for conducting air quality modeling. 10. Responsibility for administering and enforcing stationary source controls. 11. Provisions for the timely and periodic sharing of all data and information among the signatories relating to: (a) Demographics. (b) Transportation. (c) Emissions inventories. (d) Assumptions used in developing the model. (e) Results of modeling done in support of the plan. (f) Monitoring data. G. Each agency that commits to implement any emission limitation or other control measure, means or technique contained in the implementation plan shall describe that commitment in a resolution adopted by the appropriate governing body of the agency. The resolution shall specify the following: 1. Its authority for implementing the limitation or measure as provided in statute, ordinance or rule. 2. A program for the enforcement of the limitation or measure. 3. The level of personnel and funding allocated to the implementation of the measure. H. The state, in accordance with the rules adopted pursuant to section 49-404, and the governing body of the metropolitan planning organization shall adopt each nonattainment or maintenance area plan developed by a certified metropolitan planning organization. The adopted nonattainment or maintenance area plan shall be transmitted to the department for inclusion in the state implementation plan provided for under section 49-404. I. After adoption of a nonattainment or maintenance area plan, if on the basis of the reasonable further progress determination described in subsection F of this section or other information, the control officer determines that any person has failed to implement an emission limitation or other control measure, means or technique as described in the resolution adopted pursuant to subsection G of this section, the control officer shall issue a written finding to the person, and shall provide an opportunity to confer. If the control officer subsequently determines that the failure has not been corrected, the county attorney, at the request of the control officer, shall file an action in superior court for a preliminary injunction, a permanent injunction, or any other relief provided by law. J. After adoption of a nonattainment or maintenance area plan, if, on the basis of the reasonable further progress determination described in subsection F of this section or other information, the director determines that any person has failed to implement an emission limitation or other control measure, means or technique as described in the resolution adopted pursuant to subsection G of this section, and that the control officer has failed to act pursuant to subsection I of this section, the director shall issue a written finding to the person and shall provide an opportunity to confer. If the director subsequently determines that the failure has not been corrected, the attorney general, at the request of the director, shall file an action in superior court for a preliminary injunction, a permanent injunction, or any other relief provided by law. K. Notwithstanding subsections A and B of this section, in any metropolitan area with a metropolitan statistical area population of less than two hundred fifty thousand persons, the governor shall designate an agency that meets the criteria of section 174 of the clean air act and that is recommended by the city that causes the metropolitan area to exist and the affected county. That agency shall prepare and adopt the nonattainment or maintenance area plan. If the governor does not designate an agency, the department shall be certified as the agency responsible for the development of a nonattainment or maintenance area plan for that area. 49-407. Private right of action; citizen suits A. Except as provided in subsection B, a person having an interest which is or may be adversely affected may commence a civil action in superior court on his own behalf against the director alleging a failure of the director to perform an act or duty under this article or article 2 of this chapter that is not discretionary with the director. The court has jurisdiction to order the director to perform the act or duty. B. No action may be commenced in any of the following cases: 1. Before sixty days after the plaintiff has given notice of the alleged violation to the director and to an alleged violator. 2. If the director determines no violation has occurred, or if the director has initiated an administrative enforcement action by issuing a warning letter, notice of violation or issuing an order. 3. If the attorney general or county attorney has commenced and is diligently prosecuting a civil action in the superior court to require compliance with the provision, order, permit, standard, rule or emission limitation. C. In an action commenced under this section the plaintiff has the burden of proof. D. The court, in issuing a final order in an action brought under this section, may award costs of litigation, including reasonable attorney and expert witness fees, to any party that substantially prevails. 49-408. Air quality conformity; definition A. Any revision to the state implementation plan adopted pursuant to 40 Code of Federal Regulations, part 51, subpart T shall be no more stringent than required under those regulations. No state agency, metropolitan planning organization or local transportation agency shall take action that is more stringent than required under federal law in performing any of the following functions: 1. Determining which projects require conformity determinations pursuant to 40 Code of Federal Regulations, part 93, any state implementation plan revisions adopted pursuant to 40 Code of Federal Regulations, part 51, subpart T, or the conformity requirements set forth in the federal implementation plan at 40 Code of Federal Regulations, part 52, subpart D. 2. Determining which projects constitute regionally significant projects within the meaning of any of the regulations identified in paragraph 1. 3. Making conformity determinations pursuant to any of the regulations identified in paragraph 1. B. Notwithstanding any other provisions of this section, the director may adopt consultation procedures for the public or affected agencies which supplement the requirements of 40 Code of Federal Regulations, part 51, subpart T. C. For purposes of this section "local transportation agency" means any city, town, county or other local or regional government or agency that receives federal funds designated under Title 23 United States Code or the federal transit act. 49-409. Chlorofluorocarbons; permitted use; retaliation prohibited A. Notwithstanding any other law, a person may possess, use, manufacture, purchase, install, transport or sell chlorofluorocarbons. B. The possession, use, manufacture, purchase, installation, transportation or sale of chlorofluorocarbons does not subject any person, this state or any political subdivision of this state to any penalty, fine, retaliatory action or other punitive measure. 49-410. Voluntary Arizona emissions bank; definitions A. The department shall establish and administer a voluntary Arizona emissions bank for registering the deposit, transfer and use of emission reduction credits. The department shall make information on emission reduction credits deposited in the voluntary Arizona emissions bank easily accessible to the public. B. This state, any political subdivision of this state and any person that reduces qualifying emissions may apply to the department to certify emission reduction credits to be deposited into the voluntary Arizona emissions bank. To be eligible for certification and deposit in the voluntary Arizona emissions bank, the reduction in qualifying emissions shall be permanent, quantifiable, surplus, real and otherwise enforceable and shall occur after August 6, 1999. This section does not prohibit an activity from receiving credit by means other than the voluntary Arizona emissions bank for emissions reductions. C. The department shall act on an application submitted under subsection B of this section and certify the amount of the emission reduction credits under rules adopted pursuant to subsection D of this section before the credits may be deposited and used to offset future increases in emissions of air pollutants. Pursuant to title 41, chapter 6, article 8, the department may delegate certification of emission reduction credits to a county or multi-county air quality control region, but shall retain authority to register the deposit, transfer and use of emission reduction credits and administer the voluntary Arizona emissions bank. D. The department shall adopt rules for the implementation and administration of the voluntary Arizona emissions bank, and establish the criteria the department will use to determine the eligibility of reductions in qualifying emissions for emission reduction credits and the amount of the credits. Except to the extent otherwise required by the clean air act, the rules shall provide for the award of emission reduction credits equal to the full amount of reductions in qualifying emissions that are permanent, quantifiable, surplus, real and otherwise enforceable. The department shall establish by rule a fee system to cover the reasonable costs of administering the voluntary Arizona emissions bank. A county that has been delegated authority to certify emission reduction credits pursuant to subsection C of this section may establish a fee system to cover the reasonable costs of certification in accordance with section 49-112, subsection B. In adopting rules pursuant to this subsection, the department and a county shall consider and make reasonable attempts to mitigate any adverse impact on the commercial trucking industry, including any adverse economic impact and any impact on driver safety. E. Except to the extent otherwise required by the clean air act, until used or voluntarily retired by the owner, emission reduction credits deposited in the bank: 1. Do not expire. 2. Shall be identified and accounted for in the state implementation plan control strategy for the area in which the reduction in emissions occurred. 3. May not be reduced or withdrawn without permission of the owner. F. Notwithstanding any other law, this section does not directly or indirectly authorize this state or any political subdivision of this state to establish new or more stringent emissions regulations than provided in existing law for stationary or mobile sources. G. A fleet owner that applies for emission reduction credits pursuant to this subsection shall specify the composition of its proposed participating fleet. H. For the purposes of this section, unless the context otherwise requires: 1. "Emission reduction credit" means a reduction in qualifying emissions that has been certified for potential use as an offsetting emission reduction in a permit issued under this chapter, including a permit required by section 173 of the clean air act. 2. "Qualifying emissions" means emissions of any conventional air pollutant, other than elemental lead, or any precursor of a conventional air pollutant from any activity. Qualifying emissions does not include emissions from a fleet of motor vehicles if the fleet operates outside of a nonattainment area. 49-411. Particulate measures; cities, towns, counties, departments; implementation; report A. On or before March 30 of each calendar year, cities and towns in area A as defined in section 49-541 shall submit a report regarding the following activities to the department on a form developed by the director as prescribed in subsection F of this section: 1. Paving of unpaved roads and shoulders as prescribed in section 9-500.04, subsection A, paragraph 3. 2. Restrictions on the use of leaf blowers as prescribed in section 9-500.04, subsection A, paragraph 5, except those activities exempted under section 9-500.04, subsection H. 3. Restrictions on parking, maneuvering, ingress and egress areas and vacant lots as prescribed in section 9-500.04, subsection A, paragraphs 6, 7 and 8, except those activities exempted under section 9-500.04, subsection H. 4. Certification and use of street sweepers as prescribed in section 9-500.04, subsection A, paragraph 9. 5. Off-road vehicle ordinances and compliance as prescribed in section 9-500.27. B. On or before March 30 of each calendar year, each county in area A as defined in section 49-541 that has adopted rules pursuant to section 49-479 regarding the following activities shall submit a report to the department on a form developed by the director as prescribed in subsection F of this section: 1. No burn restrictions for any high pollution advisory day as prescribed in section 11-871, subsections B and D. 2. Restrictions on the use of leaf blowers by county employees and contractors and use by private persons in that county as prescribed in section 11-877. 3. Paving of unpaved roads and shoulders as prescribed in section 49-474.01, subsection A, paragraph 4. 4. Restrictions on parking, maneuvering, ingress and egress areas and vacant lots as prescribed in section 49-474.01, subsection A, paragraphs 5, 6 and 7. 5. Certification and use of street sweepers as prescribed in section 49-474.01, subsection A, paragraph 8. 6. Requirements for dust control training and site coordinators for dust control at locations at which dust control permits are required as prescribed in section 49-474.05. 7. Requirements for dust control permit subcontractor registration as prescribed in section 49-474.06. C. On or before March 30 of each calendar year, the department of transportation shall submit a report to the department of environmental quality on a form developed by the director pursuant to subsection F of this section. The report shall cover restrictions or requirements in contracts or requests for proposals, bids or other construction and service activities overseen by the department in area A as defined in section 49-541 including any requirements incorporated by reference to state law, county ordinance or rule or to a city or town ordinance or rule and required to be contained in bids, requests or contracts or in the administration of other department matters. D. On or before March 30 of each calendar year, the appropriate departments or agencies responsible for enforcing restrictions on off-highway vehicles, all-terrain vehicles and off-road recreational motor vehicles during high pollution advisory days as prescribed in section 49-457.03 shall submit a report regarding those activities to the department on a form developed by the director pursuant to subsection F of this section. E. On or before March 30 of each calendar year the department of environmental quality shall prepare a report of its activities related to the following: 1. Development and dissemination of air quality dust forecasts as prescribed in section 49-424, paragraph 11. 2. Production and distribution of printed materials to persons who sell or rent leaf blowers as prescribed in section 49-457.01, subsection F. 3. Production and distribution of printed materials to persons who sell or rent off-highway vehicles, all-terrain vehicles and off-road recreational motor vehicles as prescribed in section 49-457.04, subsections B and C. 4. Dust action general permits including best management practices for regulated activities before and during a day that is forecast to be at high risk of dust generation and at moderate risk of dust generation as prescribed in section 49-457.05, subsections B, C and D. F. The director shall develop a form to be used for reports required pursuant to this section. The reports prescribed by this section shall contain a narrative description that identifies the type of employee or contractor who performs any inspection, enforcement, training or other actions related to the listed activity and a narrative description of the scope and frequency of the activity. 49-412. Alternative fuel delivery systems; standardized waivers The department shall develop a standardized waiver application form that shall be used by state agencies, counties, cities, towns, school districts and federal fleets with vehicles that operate primarily in area A as defined in section 49-541 to document and justify the exemption of that entity's vehicles from compliance with the statutory goals for alternative fuel vehicles. The application form shall include, at a minimum, a life cycle cost formula for traditional fuel vehicles and alternative fuel vehicles that incorporates the vehicle's capital costs or conversion costs, annual fuel cost, annual maintenance and repair costs and salvage value, all as adjusted to present value. The department shall deliver to the secretary of state and the secretary of state shall publish in the Arizona administrative register copies of completed waiver applications that are received by the department. 49-413. Clean burning alternative fuels; public refueling The department shall pursue the establishment of a network of public refueling stations so that members of the public have access throughout the state to alternative fuels as a major goal. 49-421. Definitions In this article, unless the context otherwise requires: 1. "Air contaminants" includes smoke, vapors, charred paper, dust, soot, grime, carbon, fumes, gases, sulfuric acid mist aerosols, aerosol droplets, odors, particulate matter, wind-borne matter, radioactive materials, or noxious chemicals, or any other material in the outdoor atmosphere. 2. "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in sufficient quantities, which either alone or in connection with other substances by reason of their concentration and duration are or tend to be injurious to human, plant or animal life, or cause damage to property, or unreasonably interfere with the comfortable enjoyment of life or property of a substantial part of a community, or obscure visibility, or which in any way degrade the quality of the ambient air below the standards established by the director. 3. "Person" includes any public or private corporation, company, partnership, firm, association or society of persons, the federal government and any of its departments or agencies, the state and any of its agencies, departments or political subdivisions, as well as a natural person. 4. "Special inspection warrant" means an order in writing issued in the name of the state of Arizona, signed by a magistrate, directed to the director or his deputies, authorizing him to enter into or upon any public or private property for the purpose of making an inspection authorized by law. 49-422. Powers and duties A. In addition to any other powers vested in it by law, the department may: 1. Accept, receive and administer grants or other funds or gifts from public and private agencies, including the federal government, to carry out any of the purposes of this chapter. All monies resulting therefrom shall be deposited, pursuant to sections 35-146 and 35-147, in the account of the department. 2. Secure necessary scientific, technical, administrative and operational services, including laboratory facilities, by contract or otherwise to carry out the purposes of this chapter. 3. Require, as specified in subsections B and C of this section, any source of air contaminants to monitor, sample or perform other studies to quantify emissions of air contaminants or levels of air pollution that may reasonably be attributable to that source, if the director either: (a) Determines that monitoring, sampling or other studies are necessary to determine the effects of the source on levels of air pollution. (b) Has reasonable cause to believe a violation of this chapter, rules adopted pursuant to this chapter or a permit issued pursuant to this chapter has been committed. (c) Determines that those studies or data are necessary to accomplish the purposes of this chapter, and that the monitoring, sampling or other studies by the source are necessary in order to assess the impact of the source on the emission of air contaminants. B. The director shall adopt rules requiring sources of air contaminants to monitor, sample or otherwise quantify their emissions of air pollution that may reasonably be attributable to such sources for air contaminants for which ambient air quality standards or emission standards or design, equipment, work practice or operational standards have been adopted pursuant to section 49-424 or section 49-425, subsection A. In the development of the rules, the director shall consider the cost and effectiveness of the monitoring, sampling or other studies. C. For those sources of air contaminants for which rules are not required to be adopted pursuant to subsection B of this section, the director may require a source of air contaminants, by permit or order, to perform monitoring, sampling or other quantification of its emissions or air pollution that may reasonably be attributed to such a source. Before requiring such monitoring, sampling or other quantification by permit or order, the director shall consider the relative cost and accuracy of any alternatives that may be reasonable under the circumstances such as emission factors, modeling, mass balance analyses or emissions projections. The director may require such monitoring, sampling or other quantification by permit or order if the director determines in writing that all of the following conditions are met: 1. The actual or potential emissions or air pollution may adversely affect public health or the environment. 2. A monitoring, sampling or quantification method is technically feasible for the subject contaminant and the source. 3. An adequate scientific basis for the monitoring, sampling or quantification method exists. 4. The monitoring, sampling or quantification method is reasonably accurate. 5. The cost of the method is reasonable in light of the use to be made of the data. D. In determining the frequency and duration of monitoring, sampling or quantification of emissions under subsections B and C of this section, the director shall consider the five factors prescribed in subsection C of this section and the level of emissions from the source. E. Orders issued and permit conditions imposed pursuant to this section may be appealed as appealable agency actions pursuant to title 41, chapter 6, article 10. F. On request of the on-scene commander or the department of health services, the department of environmental quality shall assist at a significant chemical or other toxic fire event, excluding chemical or nuclear warfare or biological agents, and shall provide the following services if funding is available and if the director, in the director's professional capacity, determines the department's provision of services is necessary to protect human health and the environment: 1. Collect air samples for likely contaminants resulting from the fire. The department of environmental quality shall coordinate sampling locations, times and pollutants to be sampled with the department of health services and other appropriate health and emergency response officials. 2. Maintain an hourly plume report that includes meteorological conditions that affect dispersal of smoke. 3. In consultation with the department of health services and the on-scene coordinator, prepare a report that includes test results of any sampling, including the sampling rationale and protocol and chain of custody report using applicable environmental protection agency standards. The report shall also include, to the extent practicable, a smoke dispersion map with detail adequate to determine possible areas of impact at the level of detail practicable and a listing of likely releases of any chemical that is categorized by the United States environmental protection agency as a hazardous air pollutant and the corresponding environmental protection agency description of possible health effects of the chemical based on a reliable inventory of hazardous materials at the site or facility. 49-424. Duties of department The department shall: 1. Determine whether the meteorology of the state is such that airsheds can be reasonably identified and air pollution, therefore, can be controlled by establishing air pollution control districts within well defined geographical areas. 2. Make continuing determinations of the quantity and nature of emissions of air contaminants, topography, wind and temperature conditions, possible chemical reactions in the atmosphere, the character of development of the various areas of the state, the economic effect of remedial measures on the various areas of the state, the availability, use and economic feasibility of air-cleaning devices, the effect on human health and danger to property from air contaminants, the effect on industrial operations of remedial measures and other matters necessary to arrive at a better understanding of air pollution and its control. In a county with a population in excess of one million two hundred thousand persons, the department shall locate a monitoring system in at least two remote geographic sites. 3. Establish substantive policy statements for identifying air quality exceptional events that take into consideration this state's unique geological, geographical and climatological conditions and any other unusual circumstances. These substantive policy statements shall be developed with the planning agency certified pursuant to section 49-406, subsection A and the county air pollution control department or district. 4. Determine the standards for the quality of the ambient air and the limits of air contaminants necessary to protect the public health, and to secure the comfortable enjoyment of life and property by the citizens of the state or in any defined geographical area of the state where the concentration of air pollution sources, the health of the population, or the nature of the economy or nature of land and its uses so require, and develop and transmit to the county boards of supervisors minimum state standards for air pollution control. 5. Conduct investigations, inspections and tests to carry out the duties of this section under the procedures established by this article. 6. Hold hearings relating to any aspect of or matter within the duties of this section, and in connection therewith, compel the attendance of witnesses and the production of records under the procedures established by section 49-432. 7. Prepare and develop a comprehensive plan or plans for the abatement and control of air pollution in this state. 8. Encourage voluntary cooperation by advising and consulting with persons or affected groups or other states to achieve the purposes of this chapter, including voluntary testing of actual or suspected sources of air pollution. 9. Encourage political subdivisions of the state to handle air pollution problems within their respective jurisdictions, and provide as it deems necessary technical and consultative assistance therefor. 10. Compile and publish from time to time reports, data and statistics with respect to those matters studied and investigated by the department. 11. Develop and disseminate air quality du