[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Proposed Rules]
[Pages 13683-13686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6267]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5172-5]
Clean Air Act Proposed Full/Interim Approval of Title V Operating
Permits Program; Clark County Health District, Nevada
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes interim approval of the Operating Permits
Program submitted by Nevada's Clark County Health District.
Alternatively, EPA proposes to grant full approval if specified changes
are made. Clark [[Page 13684]] County's Operating Permit Program was
submitted for the purpose of complying with Federal requirements which
mandate that States develop, and submit to EPA, programs for issuing
operating permits to all major stationary sources, and to certain other
sources.
DATES: Comments on this proposed action must be received in writing by
April 13, 1995.
ADDRESSES: Comments should be addressed to Ed Pike at the Region IX
address below. Copies of the State's submittal and other supporting
information used in developing the proposed rule are available for
inspection during normal business hours at the following location: US
EPA, 75 Hawthorne Street, San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Ed Pike (telephone 415/744-1248), Mail
Code A-5-2, US EPA, Region IX, Air & Toxics Division, 75 Hawthorne
Street, San Francisco, CA 94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act (``the Act'') as
amended (1990), EPA has promulgated rules that define the minimum
elements of an approvable State operating permits program and the
corresponding standards and procedures by which EPA will approve,
oversee, and withdraw approval of State operating permits programs (see
57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of
Federal Regulations (CFR) Part 70. Title V requires States to develop,
and submit to EPA, programs for issuing these operating permits to all
major stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. 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 two years. If EPA has not fully approved a program by
two years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal program.
II. Proposed Action and Implications
A. Analysis of State Submission
The analysis in this notice focuses on the specific elements of
Clark County's title V program that must be corrected to meet the
minimum requirements of 40 CFR part 70. The full program submittal, the
Technical Support Document, and other relevant materials are available
for inspection as part of the public docket. The docket may be viewed
during regular business hours at the address listed above.
1. Support Materials
The Clark County Health District (``District''), which is delegated
authority to implement part 70 under state law (Nevada Revised Statues
``NRS'' section 445.546), submitted an administratively complete part
70 permitting program on January 20, 1994 with a letter requesting
EPA's approval. The submittal contained regulations adopted by the
District Board of Health on November 18, 1993. The District Counsel
concurrently submitted an opinion that the Health District has
sufficient authority to implement the program. The District adopted
several rule modifications on May 26, 1994 and submitted these
modifications on July 18, 1994.
The submittal contains a description of how the District will
implement the program consistent with the Clean Air Act Amendments of
1990 (42 U.S.C. 7401-7671q) and 40 CFR part 70. The submittal also
includes sample permits, permit applications, and reporting forms. EPA
intends to develop an implementation agreement with the District by the
time EPA takes final action on the program.
2. Title V Regulations and Program Implementation
The District adopted section nineteen and revised section zero of
the Air Pollution Control Regulations to meet the requirements of part
70. The District also relies on sections two, four, five, six, seven,
eight, nine, ten, and eighteen of its Air Pollution Control Regulations
(``APCR'') to implement the permitting program consistent with part 70
requirements.
a. Applicability (40 CFR 70.2 and 70.3): The District will permit
all major sources and all acid rain sources as required by part 70. The
District will also permit non-major sources subject to New Source
Performance Standards or National Emission Standards for Hazardous Air
Pollutants. (APCR section 19.3)
b. Permit Content (40 CFR 70.6): Each part 70 permit must contain
emission limitations and standards based on all applicable emission
limitations as well as monitoring, recordkeeping, and other compliance
terms sufficient to ensure compliance with all applicable requirements.
Sources may request provisions for operational flexibility. (APCR
sections 19.4 and 19.7)
c. Public Participation and EPA oversight (40 CFR 70.7): The public
will be provided notice of and an opportunity to comment on each
proposed part 70 source permit, permit renewal, and significant
modification. Each part 70 permit, permit renewal, significant
modification, and minor permit modification is subject to EPA oversight
and veto. (APCR section 19.5)
d. Variances (40 CFR 70.11): Variances may not be granted from
either applicable requirements or part 70 requirements. Therefore, the
variance provisions of the rule will not affect the enforcement
authority required under part 70. (May 26, 1994 amendment to APCR
section 7)
e. Permit Modifications (40 CFR 70.7): Sources may apply for
expedited permit changes for minor permit modifications. Significant
modifications must undergo the full part 70 permit issuance procedures.
Significant modifications include all title I modifications and all
changes to case-by-case emissions limits such as New Source Review
limits. (APCR section 19.5)
3. Permit Fee Demonstration
Clark County will collect permit and emissions-based fees that are
projected at $289,000 ($33.16 per ton of pollutant subject to the
presumptive minimum) by the end of the ramp-up period in 1995 and
$387,000 in 1996. Fees will be adjusted annually by the Consumer Price
Index beginning in 1997. The District's fees for the first four years
of the program exceed, in the aggregate, the fees presumed sufficient
to fund the program (40 CFR 70.9). Therefore, EPA believes that the
County will collect sufficient fees to implement the part 70 permitting
program.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Title III--The District has demonstrated in its title V program
submittal broad legal authority to incorporate into permits and enforce
all applicable requirements, including section 112 standards. The
District also made a commitment to implement all section 112
requirements (July 18, 1994 program update). The EPA regards the
program submittal and commitment as a demonstration that the District
currently has statutory and regulatory authority to carry out all
section 112 requirements [[Page 13685]] required by part 70 and an
acknowledgment by the District that it is obligated to obtain any
further regulatory authority needed to issue permits that assure
compliance with section 112 applicable requirements.
EPA is interpreting the above legal authority and commitment to
mean that the District is able to carry out all section 112 activities.
For further discussion, please refer to the Technical Support Document
and the April 13, 1993 guidance memorandum titled ``Title V Program
Approval Criteria for Section 112 Activities,'' signed by John Seitz,
Director of EPA's Office of Air Quality Planning and Standards.
b. Title IV--The District committed in its July 18, 1994 program
update to obtain by January 1, 1995 the necessary regulatory authority
to administer an acid rain program and to make regulatory revisions as
necessary to accommodate federal revisions and additions. The District
has drafted, but not officially adopted, the necessary regulations. EPA
anticipates that these regulations will be adopted by the time EPA
takes final action on this program.
B. Options for Approval/Disapproval and Implications
1. Changes Necessary for Full Approval
EPA is proposing to grant full approval under section 502 of the
Act to the program if the changes listed below are made. If the
District has not adopted regulations incorporating these provisions and
submitted them to EPA as part of its operating permit program by the
time EPA takes final rulemaking action, EPA will grant the District's
program interim approval at that time. Please refer to the Technical
Support Document, which is included in the docket, for additional
details.
a. Enforcement Commitments. The District must submit documentation
and commitments for implementing its enforcement and compliance
tracking program. Part 70 requires that the District submit enforcement
policies, including agreements with the EPA, and a description of the
District's enforcement program, compliance tracking activities, and
inspection strategies. (40 CFR 70.4(b)(4) and (5)) In addition, failure
to act on violations of permits or other program requirements, failure
to seek adequate penalties and fines and collect all assessed penalties
and fines, and failure to inspect and monitor activities subject to
regulation are grounds for withdrawing program approval. (40 CFR
70.10(c)(iii)) Therefore, the District must submit the descriptions
and/or commitments required under sections 70.4(b)(4) and (5) to
qualify for full approval and should ensure that the commitments meet
the criteria in section 70.10(c)(iii).
b. Operational Flexibility Gatekeeper. The District's operational
flexibility gatekeeper (APCR section 19.4.1.8) is not explicitly as
broad as the section 70.4(b)(12) gatekeeper for section 502(b)(10)
changes. Part 70 prohibits operational flexibility for ``modifications
under any provision of title I of the Act.'' In contrast, the District
prohibits these changes for any ``New Source Review modifications under
any provision of title I of the Act,'' which does not expressly include
modifications under sections 111 and 112. EPA expects that most section
111 or 112 modifications will be subject to the District's New Source
Review program; however, in certain cases the section 111 or 112
modification definition will be more inclusive than the District's New
Source Review rule. Therefore, revising the rule to explicitly prohibit
section 502(b)(10) changes for all title I modifications is a
requirement for full approval.
c. Confidential Business Information. The District Counsel's
opinion does not document that the District's definition of
confidential business information (``CBI''), which is not available to
the public, is as narrow as EPA's. Section 19.3.1.3 states that
``emissions'' may not be considered confidential. EPA's regulation
states that ``emissions data'' may not be considered confidential. (40
CFR 2.301) The District must adopt EPA's narrower definition of
confidential information. Alternatively, the District Counsel must
issue a statement that the District's program does not contain more
restrictions on public access to information than the federal
regulations.
d. Insignificant Activities. The District submitted criteria
defining which units that are not subject to the part 70 permitting
program. For criteria pollutants, the rule exemption threshold is based
on potential emissions of either one or two tons per year. EPA believes
these criteria pollutant thresholds are acceptable. The rule also
exempts units with potential emissions of 200 pounds per year of
hazardous air pollutants (HAPs). EPA believes that this threshold is
acceptable except for very hazardous substances for which EPA has
promulgated or proposed a lower title I modification threshold. To
receive full approval, the District's exemption should be no less
stringent than these thresholds. In addition, the program must require
sources to identify permit exemptions on their applications. (40 CFR
70.5(c)).
e. Applicable Requirements and National Ambient Air Quality
Standards (NAAQS). The District must add NAAQS, visibility, and
increment requirements for temporary sources to the definition of
applicable requirements (40 CFR 70.3). Sources that temporarily operate
at multiple locations, such as non-metallic minerals processors or
asphalt batch plants, may qualify for temporary source permits. The
temporary source permits issued to these sources must require
compliance with applicable requirements, as defined in part 70, at each
location.
f. Early reductions permit deadline. The District must add a
deadline of nine months or less for early reductions permits issued
under section 112(i)(5) of the Act (40 CFR 70.4(b)(11)).
2. Interim Approval
The program substantially meets the requirements of part 70 as
required under section 70.4. The EPA proposes to grant interim approval
to the operating permits program submitted by the District on January
20, 1994 and updated on July 18, 1994 if the changes listed above are
not made prior to the final action on the program. This interim
approval would be changed to a full approval if the County subsequently
makes the changes necessary for full approval. Permits issued under a
program with interim approval have full standing with respect to part
70, and the one year time period for submittal of permit applications
by subject sources begins upon interim approval, as does the three year
time period for processing the initial permit applications.
3. Sanctions and Federal Program
If EPA were to finalize this proposed interim approval, it would
extend for two years following the effective date of final interim
approval, and could not be renewed. During the interim approval period,
the District would be protected from sanctions, and EPA would not be
obligated to promulgate, administer and enforce a Federal permits
program in Clark County.
Following final interim approval, if the District failed to submit
a complete corrective program for full approval by the date 6 months
before expiration of the interim approval, EPA would start an 18-month
clock for mandatory sanctions. If the District then failed to submit a
corrective program that EPA found complete before the expiration of
that 18-month period, EPA would be required to apply one of the
sanctions in section 179(b) of the Act, which would remain in effect
until EPA determined that the District had corrected the deficiency by
submitting a [[Page 13686]] complete corrective program. Moreover, if
the Administrator found a lack of good faith on the part of the
District, both sanctions under section 179(b) would apply after the
expiration of the 18-month period until the Administrator determined
that the District had come into compliance. In any case, if, six months
after application of the first sanction, the District still had not
submitted a corrective program that EPA found complete, a second
sanction would be required.
If, following final interim approval, EPA were to disapprove the
District's complete corrective program, EPA would 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 the
District had submitted a revised program and EPA had determined that it
corrected the deficiencies that prompted the disapproval. Moreover, if
the Administrator found a lack of good faith on the part of the
District, both sanctions under section 179(b) would apply after the
expiration of the 18-month period until the Administrator determined
that the District had come into compliance. In all cases, if, six
months after EPA applied the first sanction, the District had not
submitted a revised program that EPA had determined corrected the
deficiencies that prompted disapproval, a second sanction would be
required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if the District
has not timely submitted a complete corrective program or EPA has
disapproved a submitted corrective program. Moreover, if EPA has not
granted full approval to the District's program by the expiration of an
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a Federal permits program
for the District upon interim approval expiration.
4. Approval of Preconstruction Program for Section 112(g) Case-by-Case
MACT Determinations
Clark County will be required to implement the Maximum Achievable
Control Technology requirements of section 112(g) of the Act as a
component of the part 70 program. The EPA is proposing to approve the
District's preconstruction permitting program, found in section 12 of
the District rules, under the authority of title V and part 70 solely
for the purpose of implementing section 112(g) during the transition
period between the effective date of 112(g) and District adoption of a
112(g) rule. EPA has published an interpretive notice in the Federal
Register that interprets section 112(g) to allow State and local
agencies to delay implementing 112(g) of the Act until EPA promulgates
a final 112(g) rule. Alternatively, State and local agencies may
implement the requirements of 112(g) prior to EPA promulgation of the
112(g) rule as a matter of State or local law. 60 FR 8333 (February 14,
1995) The notice also states that EPA is considering whether to further
delay the effective date of section 112(g) beyond the date of
promulgation of the Federal rule so as to allow State and local
agencies time to adopt rules implementing the Federal rule. EPA will
provide for any such additional delay in the final section 112(g)
rulemaking. Unless and until EPA provides for such an additional
postponement of section 112(g), the District must be able to implement
section 112(g) during the period between promulgation of the Federal
section 112(g) rule and adoption of implementing District regulations
and may choose to implement section 112(g) sooner as a matter of local
law.
For this reason, EPA is proposing to approve the District's
preconstruction review program as a mechanism to implement section
112(g) during the transition period between promulgation of the section
112(g) rule and District adoption of rules specifically designed to
implement section 112(g). However, since approval is intended solely to
confirm that State and local agencies have a mechanism to implement
section 112(g) during the transition period, the approval itself will
be without effect if EPA decides in the final section 112(g) rule that
there will be no transition period. The EPA is proposing that twelve
months will be adequate for the District to adopt implementing
regulations but solicits comments on whether this timeframe will be
adequate.
5. Approval of Program for Straight Delegation of Section 112 Standards
Under the Authority of Section 112(l) of the Act
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 General Provisions subpart A and standards as
promulgated by EPA as they apply to part 70 sources. Section 112(l)(5)
requires that the District's program contain adequate authorities,
adequate resources for implementation, and an expeditious compliance
schedule, which are also requirements under part 70. Therefore, the EPA
is also proposing to grant approval under section 112(l)(5) and 40 CFR
63.91 of the District's program for receiving delegation of section 112
standards that are unchanged from Federal standards as promulgated.
This program for delegations only applies to sources covered by the
part 70 program.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
full/interim approval. Copies of the State's submittal and other
information relied upon for the proposed interim approval are contained
in a docket 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 proposed full/
interim approval. The principal purposes of the docket are:
(1) to allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval/
disapproval process, and
(2) to serve as the record in case of judicial review. The EPA will
consider any comments received by April 13, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
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 permits 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.
Authority: 42 U.S.C. 7401, et seq.
Dated: February 25, 1995.
Felicia Marcus,
Regional Administrator.
[FR Doc. 95-6267 Filed 3-13-95; 8:45 am]
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