A. The control officer may grant to any person a conditional order for each air pollution source which allows such person to vary from any provision of A.R.S. Title 49, Chapter 3, Article 3, this title, or any nonfederally enforceable requirement of a permit issued pursuant to this title if the control officer makes each of the following findings:
1. Issuance of the conditional order will not endanger public health or the environment, impede attainment or maintenance of the national ambient air quality standards, or constitute a violation of the Clean Air Act, and
2. Either of the following is true:
a. There has been a breakdown of equipment or upset of operations beyond the control of the petitioner which causes the source to be out of compliance with the requirements of this title, the source was in compliance with the requirements of this title before the breakdown or upset, and the breakdown or upset may be corrected within a reasonable time.
b. There is no reasonable relationship between the economic and social cost of, and benefits to be obtained from, achieving compliance.
B. The control officer may not issue a conditional order which allows a source to vary from the requirement to obtain a permit issued pursuant to Section 17.11.090.
C. The following procedures shall apply to a person seeking a conditional order:
1. The person shall file a petition for a conditional order with the control officer. The petition shall contain at a minimum:
a. A description of the breakdown or upset.
b. A description of corrective action being undertaken to bring the source back into compliance.
c. An estimate of emissions related to the breakdown or upset.
d. A compliance schedule with a date of final compliance and interim dates as appropriate.
e. A detailed analysis of the economic and social costs and benefits of achieving compliance with the requirement for which the variance is sought, if the petition is based on subsection (A)(2)(b) of this section.
2. If the issuance of the conditional order requires a public hearing pursuant to Sections 17.12.190(E) and 17.13.210(E), the control officer shall set the hearing date within thirty days after the filing of the petition and the hearing shall be held within sixty days after the filing of the petition.
4. At the time the control officer publishes the first notice, the applicant shall post a notice containing the information required in Sections 17.12.190(D) and 17.13.210(D) at the site where the source is or may be located. Consistent with federal, state, and local law, the posting shall be prominently placed at a location under the applicant's legal control, adjacent to the nearest public roadway, and visible to the public using the public roadway. The applicant shall place an additional posting providing notice of the hearing. Any posting shall be maintained until the public comment period is closed.
5. The control officer shall provide at least thirty days from the date of its first notice for public comment. The control officer shall keep a record of the commenters and of the issues raised during the public participation process and shall prepare written responses to all comments received. At the time a final decision is made, the record and copies of the control officer's responses shall be made available to the applicant and all commenters.
D. Decisions on petitions for a conditional order shall be made as follows:
1. For any conditional order that requires a revision to the SIP, the control officer shall comply with the requirements contained in 40 CFR 51, Subpart F.
2. For any other conditional order, the control officer shall grant or deny the petition on such terms and conditions as the control officer deems appropriate within thirty days after the conclusion of any required hearing, or, if no hearing is held, within sixty days after the filing of the petition.
E. A fee to cover the costs of processing conditional orders may be charged by the control officer prior to issuance of the conditional order according to Section 17.12.220(I) or (J) and shall be deposited in the Air Quality Revenue Fund.
F. The terms of a conditional order or its renewal shall conform to the following:
1. A conditional order issued by the control officer shall be valid for such period as the control officer prescribes but in no event for more than one year in the case of a source that is required to obtain a permit pursuant to this title and Title V of the Act (Permits), and three years in the case of any other source that is required to obtain a permit pursuant to this title.
2. The terms and conditions which are imposed as a condition to the granting or the continued existence of a conditional order shall include:
a. A detailed plan for completion of corrective steps needed to conform to the provisions of A.R.S. Title 49, Chapter 3, Article 3, this title and the requirements of any permit issued pursuant to this title.
b. A requirement that necessary construction shall begin as specified in the compliance schedule.
c. Written reports, at least quarterly, of the status of the source and construction progress.
d. The right of the control officer to make periodic inspection of the facilities for which the conditional order is granted.
e. Such additional terms and conditions as the control officer finds necessary to meet the requirements of this section and A.R.S. § 49-437.
3. A holder of a conditional order may petition the control officer to renew the order. The total term of the initial period and all renewals shall not exceed three years from the date of initial issuance of the order. Petitions for renewal may be filed at any time not more than sixty days nor less than thirty days prior to the expiration of the order. The control officer, within thirty days of receipt of a petition, shall renew the conditional order for one year if the petitioner is in compliance and conforming with the terms and conditions imposed. The control officer may refuse to renew the conditional order if, after a public hearing held within thirty days of receipt of a petition, the control officer finds that the petitioner is not in compliance and conforming with the terms and conditions of the conditional order. If, after a period of three years from the date of original issuance the petitioner is not in compliance and conforming with the terms and conditions, the control officer may renew a conditional order for a total term of two additional years only if the control officer finds that failure to comply and conform is due to conditions beyond the control of such petitioner.
4. If the control officer amends or adopts any rule imposing conditions on the operation of an air pollution source which have become effective as to the source by reason of the action of the control officer or otherwise, and which require the implementation of control strategies necessitating the installation of additional or different air pollution control equipment, the control officer may renew a conditional order for an additional term. The term of the renewal shall be governed by the preceding subsections of this section, except that the total term of the renewal shall not exceed two years.
5. A conditional order issued by the control officer shall be effective when issued unless:
a. The conditional order varies from the requirements of the applicable implementation plan, in which case the conditional order shall be submitted to the administrator as a revision to the applicable implementation plan pursuant to Section 110(L) of the Act (Implementation Plans), and shall become effective upon approval by the administrator.
b. The conditional order varies from the requirements of a permit issued for a facility that is required to obtain a permit pursuant to Title V of the Act (Permits), in which case the conditional order shall be submitted to the administrator if required by Section 505 of the Act (Notification to administrator and Contiguous States), and shall be effective at the end of the review period specified in such section, unless objected to within such period by the administrator.
G. If the terms and conditions of the conditional order are being violated, the control officer may seek to revoke or suspend the conditional order. In such event, the control officer shall serve notice of such violation on the holder of the conditional order in the manner provided in A.R.S. § 49-498. The notice shall specify the nature of such violation and the date on which a hearing will be held to determine if a violation has occurred and whether the conditional order should be suspended or revoked. The date of the hearing shall be within thirty days from the date the notice is served upon the holder of the conditional order.
(Ord. 2017-20 § 3 (part), 2017: Ord. 1995-87 § 52, 1995: Ord. 1994-83 § 72, 1994: Ord. 1993-128 § 7 (part), 1993)