[Federal Register Volume 60, Number 3 (Thursday, January 5, 1995)]
[Rules and Regulations]
[Pages 1741-1744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-253]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5134-2]
Clean Air Act Final Interim Approval of the Operating Permits
Program; Washoe County District Health Department, Nevada
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating interim approval of the operating
permits program submitted by the Washoe County District Health
Department (Washoe or District) for the purpose of complying with
Federal requirements that mandate that states develop, and submit to
EPA, programs for issuing operating permits to all major stationary
sources, and to certain other sources.
EFFECTIVE DATE: March 6, 1995.
ADDRESSES: Copies of the District's submittal and other supporting
information used in developing the final interim approval are available
for inspection (docket number NV-WSH-94-1-OPS) during normal business
hours at the following location: U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Celia Bloomfield (telephone 415/744-
1249), Mail Code A-5-2, U.S. Environmental Protection Agency, Region
IX, Air & Toxics Division, 75 Hawthorne Street, San Francisco, CA
94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the Clean Air Act (Act), and implementing regulations at
40 CFR part 70 require that states develop and submit operating permit
programs to EPA by November 15, 1993, and that EPA act to approve or
disapprove each program within 1 year after receiving the submittal.
The EPA's program review occurs pursuant to section 502 of the Act and
the part 70 regulations, which together outline criteria for approval
or disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to 2 years. If EPA has not fully approved a program by 2
years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal program.
On August 24, 1994, EPA proposed interim approval of the operating
permits program for Washoe County, Nevada. See 59 FR 43523. The August
24, 1994 Federal Register document also proposed approval of Washoe's
interim mechanism for implementing section 112(g) and program for
delegation of section 112 standards as promulgated. Public comment was
solicited on these proposed actions. EPA received one comment on the
section 112(g) proposal and is responding to that comment in this
document and in a separate ``Response to Comments'' document that is
available in the docket. The proposed actions have not been altered as
a result of public comment or for any other reason. Hence, this final
rule is granting interim approval to Washoe's operating permits program
and approving the 112(g) and 112(l) mechanisms noted above.
II. Final Action and Implications
A. Analysis of State Submission
Washoe's title V operating permits program was submitted by the
Nevada Division of Environmental Protection, on behalf of Washoe, on
November 18, 1993 and found to be complete on January 13, 1994. The
regulations that comprise the program were adopted by the Washoe County
District Board of [[Page 1742]] Health on October 20, 1993. EPA
proposed interim approval, in accordance with Sec. 70.4(d), on August
24, 1994 (59 FR 43523) on the basis that the program ``substantially
meets'' part 70 requirements. The analysis in the proposed document
remains unchanged and will not be repeated in this final document. The
program deficiencies identified in the proposed document, and outlined
below, also remain unchanged and must be corrected for the District to
have a fully approvable program.
At the time of proposal, EPA believed that an implementation
agreement would be completed prior to final interim approval. EPA and
Washoe have not yet finalized the implementation agreement, however,
but are working to do so as soon as practicable.
As discussed in the proposed document, Washoe has authority under
State and local law to issue a variance from State and local
requirements. The EPA would like to reiterate that the Agency has no
authority to approve provisions of state or local law that are
inconsistent with the Act, and EPA does not recognize the ability of a
permitting authority to grant relief from the duty to comply with a
federally enforceable part 70 permit, except where such relief is
granted through procedures allowed by part 70.
B. Public Comment
EPA received one public comment regarding the proposed approval of
Washoe's preconstruction permitting program for the purpose of
implementing section 112(g) during the transition period between title
V approval and adoption of a District rule implementing EPA's section
112(g) regulations. In opposition to the proposed action, one commenter
argued that Washoe should not, and cannot, implement section 112(g)
until: (1) EPA has promulgated a section 112(g) regulation; and (2) the
District has a section 112(g) program in place.
EPA disagrees with the commenter's contention that section 112(g)
does not take effect until after EPA has promulgated implementing
regulations. The statutory language in section 112(g)(2) prohibits the
modification, construction, or reconstruction of a source after the
effective date of a title V program unless MACT (determined on a case-
by-case basis, if necessary) is met. The plain meaning of this
provision is that the prohibition takes effect on the effective date of
title V regardless of whether EPA or a state has promulgated
implementing regulations.
The EPA has acknowledged that states may encounter difficulties
implementing section 112(g) prior to the promulgation of final EPA
regulations (See June 28, 1994 memorandum entitled, ``Guidance for
Initial Implementation of Section 112(g),'' signed by John Seitz,
Director of the Office of Air Quality Planning and Standards.) EPA has
issued guidance, in the form of a proposed rule, which may be used to
determine whether a physical or operational change at a source is not a
modification either because it is below de minimis levels or because it
has been offset by a decrease of more hazardous emissions. See 59 FR
15004 (April 1, 1994). The EPA believes the proposed rule provides
sufficient guidance to Washoe and sources until such time as EPA's
section 112(g) rulemaking is finalized.
The EPA is aware that Washoe lacks a program designed specifically
to implement section 112(g). However, Washoe does have authority to
regulate hazardous air pollutants (HAP) in its preconstruction review
program, and hence, the preconstruction review program can serve as a
procedural vehicle for rendering a case-by-case MACT or offset
determination federally enforceable. The EPA believes Washoe's
preconstruction review program will be adequate because it will allow
Washoe to select control measures that would meet MACT, as defined in
section 112, and incorporate those measures into a federally
enforceable preconstruction permit. By approving Washoe's
preconstruction review program under the authority of title V and part
70, EPA is clarifying that it may be used for the purpose of
implementing section 112(g) during the transition period.
One consequence of the fact that Washoe lacks a program designed
specifically to implement section 112(g) is that the applicability
criteria found in its preconstruction review program may differ from
those in section 112(g). However, whether a particular source change
qualifies as a modification, construction, or reconstruction for
section 112(g) purposes will be determined according to the statutory
provisions of section 112(g), using the proposed rule as guidance. As
noted in the June 28, 1994 guidance, EPA intends to defer wherever
possible to a state's judgement regarding applicability determinations.
This deference must be subject to obvious limitations. For instance, a
physical or operational change resulting in a net increase in HAP
emissions above 10 tons per year could not be viewed as a de minimis
increase under any interpretation of the Act. The EPA would expect
Washoe to issue a preconstruction permit containing a case-by-case
determination of MACT in such a case even if review under its own
preconstruction review program would not be triggered.
C. Interim Approval and Implications
1. Title V Operating Permits Program
The EPA is granting interim approval to the operating permits
program submitted to EPA by the Nevada Division of Environmental
Protection, on behalf of Washoe, on November 18, 1993. The District
must make the following changes to receive full approval:
(1) Revise insignificant activity provisions so that they comply
with Sec. 70.5(c). Specifically, rule 030.905(B)(3) must state that any
activity at a title V facility that is subject to an applicable
requirement may not qualify as an insignificant activity. Because
Washoe defines insignificant activities by size, both rule
030.020(C)(4) and the application form must require the applicant to
list all insignificant activities in enough detail to determine
applicability and fees, and to impose any applicable requirements.
(2) Revise 030.020 to state that each application must contain the
following information: (1) Description of any processes and products
associated with alternate scenarios (Sec. 70.5(c)(2)); (2) description
of compliance monitoring devices or activities (Sec. 70.5(c)(3)(v));
(3) when emissions trading provisions are requested by a source,
proposed replicable procedures and permit terms
(Sec. 70.4(b)(12)(iii)); and (4) a statement that the source will, in a
timely manner, meet all applicable requirements that will become
effective during the permit term (Sec. 70.5(c)(8)). EPA has also noted
in the Technical Support Document recommended revisions to Washoe's
permit application form so that the form will better reflect the
information required by regulation. These recommended revisions,
however, are not required for full approval. In addition, rule 030.020
must clearly require that any application form, report, or compliance
certification submitted in the permit application include a
certification based on information and belief formed after reasonable
inquiry. (Sec. 70.5(d))
(3) Add a provision to the rule that imposes a general duty on the
permit applicant to submit supplementary facts or corrected information
upon becoming aware of any failure to submit relevant facts or
submittal of incorrect information. (Sec. 70.5(b))
(4) Revise 030.930 to provide public notice ``by other means if
necessary to assure adequate notice to the affected public.''
(Sec. 70.7(h)(1)) [[Page 1743]]
(5) Revise 030.960(C)(8) to state that the certifications must be
based on information and belief formed after reasonable inquiry.
(Sec. 70.6(c)(1) and Sec. 70.5(d))
(6) Revise 030.970(B) to state that schedules for compliance shall
resemble and be at least as stringent as that contained in any judicial
consent decree or administrative order. (Sec. 70.5(c)(8)(iii)(C) and
Sec. 70.6(c)(3))
(7) Part 70 prohibits sources from implementing significant permit
modifications prior to final permit action unless the changes have
undergone preconstruction review pursuant to section 112(g) or a
program approved into the SIP pursuant to part C or D of title I, and
the changes are not otherwise prohibited by the source's existing part
70 permit. Washoe's regulations require sources to submit applications
for significant permit modifications 6 months prior to implementing the
change, yet final permit action may not occur until 9 months after
receipt of a complete application. Hence, rule 030.950(E) must be
revised to eliminate the 3 month time frame that sources are able to
implement significant permit modifications without revised permits.
(Sec. 70.5(a)(1)(ii))
2. Implications of Title V Interim Approval
As a result of today's final interim approval of Washoe's part 70
program, the requirement to submit a permit application to Washoe
applies to all part 70 sources, as defined in the approved program,
within Washoe's jurisdiction, except for any source of air pollution
over which a federally recognized Indian Tribe has jurisdiction. See,
e.g., 59 FR 55813, 55815-55818 (November 9, 1994).
This interim approval, which may not be renewed, extends until
February 5, 1997. During this interim approval period, Washoe is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a Federal operating permits program in Washoe
County. Permits issued under a program with interim approval have full
standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If Washoe fails to submit a complete corrective program for full
approval by August 5, 1996. EPA will start an 18-month clock for
mandatory sanctions. If Washoe then fails to submit a corrective
program that EPA finds complete before the expiration of that 18-month
period, EPA will be required to apply one of the sanctions in section
179(b) of the Act, which will remain in effect until EPA determines
that Washoe has corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator finds a lack of good
faith on the part of Washoe, both sanctions under section 179(b) will
apply after the expiration of the 18-month period until the
Administrator determines that Washoe has come into compliance. In any
case, if, six months after application of the first sanction, Washoe
still has not submitted a corrective program that EPA has found
complete, a second sanction will be required.
If EPA disapproves Washoe's complete corrective program, EPA will
be required to apply one of the section 179(b) sanctions on the date 18
months after the effective date of the disapproval, unless prior to
that date Washoe has submitted a revised program and EPA has determined
that it corrected the deficiencies that prompted the disapproval.
Moreover, if the Administrator finds a lack of good faith on the part
of Washoe, both sanctions under section 179(b) shall apply after the
expiration of the 18-month period until the Administrator determines
that Washoe has come into compliance. In all cases, if, six months
after EPA applies the first sanction, Washoe has not submitted a
revised program that EPA has determined corrects the deficiencies, a
second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if Washoe
has not submitted a timely and complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to the Washoe program by the expiration of this
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a Federal permits program
for Washoe County upon interim approval expiration.
3. District Preconstruction Permit Program Implementing Section 112(g)
The EPA is approving Washoe's preconstruction permitting program
found in District rules 030.000 and 030.002 under the authority of
title V and part 70 solely for the purpose of implementing section
112(g) during the transition period between title V approval and
adoption of a District rule implementing EPA's section 112(g)
regulations. This approval is limited in duration and will expire 12
months after EPA promulgates section 112(g) regulations.
4. Program for Delegation of Section 112 Standards as Promulgated
The EPA is approving under section 112(l)(5) and 40 CFR section
63.91 Washoe's program for receiving delegation of section 112
standards that are unchanged from the Federal standards as promulgated.
Washoe has informed EPA that it intends to obtain the regulatory
authority necessary to accept delegation of section 112 standards by
incorporating section 112 standards into District regulations by
reference to the Federal regulations. The details of this delegation
mechanism will be set forth in a Memorandum of Agreement between Washoe
and EPA. This program for delegations only applies to sources covered
by the title V program.
III. Administrative Requirements
A. Docket
Copies of Washoe's submittal and other information relied upon for
the final interim approval, including the one public comment received
and reviewed by EPA on the proposal, are contained in docket number NV-
WSH-94-1-OPS maintained at the EPA Regional Office. The docket is an
organized and complete file of all the information submitted to, or
otherwise considered by, EPA in the development of this final interim
approval. The docket is available for public inspection at the location
listed under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permit programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
[[Page 1744]] Dated: December 16, 1994.
Felicia Marcus,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for Nevada
in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Nevada
(a) (Reserved)
(b) Washoe County District Health Department: submitted on November
18, 1993; interim approval effective on March 6, 1995; interim approval
expires February 5, 1997.
* * * * *
[FR Doc. 95-253 Filed 1-4-95; 8:45 am]
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