[Federal Register Volume 64, Number 90 (Tuesday, May 11, 1999)]
[Rules and Regulations]
[Pages 25210-25213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11708]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NV 030-0015; FRL-6339-4]
Clean Air Act Approval and Promulgation of New Source Review
Provisions Implementation Plan for Nevada State Clark County Air
Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating approval of the new source review
(NSR) program submitted by the Clark County Air Pollution Control
District (CCAPCD) for the purpose of meeting the nonattainment and
prevention of significant deterioration (PSD) NSR requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). The requested
revision was submitted by the State to satisfy certain Federal
requirements for an approvable nonattainment new source review SIP.
This submittal also satisfies the requirements for a Prevention of
Significant Deterioration (PSD) program. The intended effect of this
rulemaking is to regulate air pollution in accordance with the Act.
Thus, EPA is finalizing the approval of these revisions into the Nevada
state implementation plan (SIP) under provisions of the CAA regarding
EPA action on SIP submittals, SIPs for national primary and secondary
ambient air quality standards and plan requirements for nonattainment
areas.
EFFECTIVE DATE: This action is effective on June 10, 1999.
ADDRESSES: Copies of the rules and EPA's evaluation report for the
rules are available for public inspection at EPA's Region IX office
during normal business hours. Copies of the submitted rules are
available for inspection at the following locations:
Permits Office (Air-3), Air Division, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
SW, Washington, DC 20406.
Clark County Health District, 625 Shadow Lane, Las Vegas, NV 89127
Nevada Division of Environmental Protection, 333 W. Nye Lane, Carson
City, NV 89710
FOR FURTHER INFORMATION CONTACT: Steve Branoff, Environmental Engineer,
Permits Office (Air-3), Air Division, EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105, Telephone: (415) 744-1290.
SUPPLEMENTARY INFORMATION:
Background and Purpose
The air quality planning requirements for nonattainment NSR are set
out in Part D of Title I of the Act, with implementing regulations at
40 CFR 51.160 through 51.165. The air quality planning requirements for
PSD are set out in Part C of Title I of the Act, with implementing
regulations at 40 CFR 51.166. On November 30, 1993, CCAPCD submitted
its NSR rules to EPA as a proposed revision to the SIP. On July 28,
1995, EPA proposed to approve with contingencies, and to disapprove in
the alternative, the submitted SIP revisions. See 61 FR 17675. Full
approval as a final action was contingent upon CCAPCD making required
changes to the submitted rules. EPA requested public comments on the
proposed approval and received none.
CCAPCD has since submitted to EPA revised NSR rules. The revisions
contain the required changes and EPA is therefore promulgating final
approval of the revised rules. The specific changes that CCAPCD made to
its rules are detailed below.
The Clark County Board of Health (the governing board for the
CCAPCD) adopted changes to the new source review rules in
``installments'' at public hearings on December 21, 1995; December 19,
1996; January 23, 1997; April 24, 1997; June 26, 1997, January 22, 1998
and April 23, 1998. There was substantial input from the public and the
regulated community at these
[[Page 25211]]
hearings and the workshops that preceded them.
For Rule 58, CCAPCD submitted the revised rule to the State of
Nevada for inclusion to the SIP on November 18, 1996. The State
submitted Rule 58 to EPA on January 17, 1997. The SIP revision was
reviewed by EPA and determined to be complete on March 10, 1997. For
Rules 0 and 12, CCAPCD submitted the revised rules to the State of
Nevada for inclusion to the SIP on March 3, 1999. The State submitted
Rules 0 and 12 to EPA on March 15, 1999. The SIP revision was reviewed
by EPA and determined to be complete on March 30, 1999.
In its July 28, 1995 proposed approval, EPA identified a number of
deficiencies in CCAPCD's November 30, 1993 submittal which had to be
corrected as a condition of full approval. At that time, CCAPCD had
proposed draft rules which corrected the deficiencies. EPA's technical
support document (TSD) for the July 28, 1995 proposed approval contains
a discussion of how CCAPCD's proposed draft rules would correct the
deficiencies, as well as how they would meet the general NSR
requirements of the Act. The rules in CCAPCD's current submittal are
substantially similar to the draft rules upon which EPA based its
proposed approval. Below is a discussion of the portions of CCAPCD's
January 17, 1997 and March 15, 1999 submittals which correct the
deficiencies identified by EPA.
Corrected Deficiencies
Rule 0
Modification: In its July 28, 1995 proposed approval, EPA specified
that ``the rule fails to require review for modifications which involve
a major increase in actual emissions, but no increase in potential to
emit. To correct this deficiency, calculations in the District rule
must be based on increases in actual emissions.'' In the March 15, 1999
submittal, CCAPCD corrected the definition of modification to reference
a change resulting in a ``net emissions increase.'' As suggested in
EPA's proposed approval, the federal definition of ``net emissions
increase'' was also incorporated into the rule. In concert, these
definitions satisfy EPA's requirement for review of modifications.
Regulated Air Pollutant: EPA specified that ``the definition of
regulated air pollutant in the submitted rule . . . should be corrected
for rule consistency.'' With revisions to the definition in the March
15, 1999 submittal, CCAPCD satisfies EPA's suggestion.
Volatile Organic Compound: EPA's proposed approval described
CCAPCD's definition of Volatile Organic Compound ``contains a list of
substances exempt from regulation as VOCs which is inconsistent with
the exemption list in 40 CFR 51.100(s).'' CCAPCD's March 15, 1999
submittal corrected this discrepancy by incorporating the CFR
definition verbatim. This language satisfies EPA's requirements.
Rule 12
Public Notice: In its July 28, 1995 proposed approval, EPA
specified that a ``thirty-day public comment period should be required
for each permit application, as specified by 40 CFR 51.166(q). All
public comment, oral and written, received within the specified time,
should be considered in making the final decision on the approvability
of the permit application.'' The March 15, 1999 submittal includes
section 12.3.4.2, to require consideration of public comments, and
section 12.3.4 to require a minimum thirty-day public comment period.
The addition of these sections satisfies EPA's requirements.
Variance to Rule Requirements: EPA specified that ``no variance may
be granted to a source required by federal standards to undergo new
source review.'' The March 15, 1999 submittal removed provisions for a
variance to the major source impact analysis for NOX and
therefore satisfies EPA's requirements in that regard.
Fugitive Emissions: EPA's proposed approval explained that
``fugitives must also be included in the major source applicability
determination, defined by a source's potential to emit, for all other
regulated pollutants, if the source belongs to one of the source
categories listed in 40 CFR 51.165(a)(1)(iv)(C).'' Revisions to the
definitions of potential to emit, section 0.116, and stationary source,
section 0.133, ensured that fugitive emissions would be included in
applicability determination. The language in the March 15, 1999
submittal satisfies EPA's requirements.
Additional Impact Analysis for Attainment Pollutants: EPA specified
that the rule failed to require an additional impact analysis for VOC,
lead and CO: ``The rule must be amended to require the additional
impact analysis for pollutants subject to regulation under the Act
which will be emitted by the new source or modifications.'' In sections
12.2.5.7, 12.2.10.6, 12.2.13.6, 12.2.15.7, 12.2.16.7, and 12.2.17.6,
the March 15, 1999 submittal requires such analysis for all criteria
pollutants at major sources and major modifications in attainment
areas. The language satisfies EPA's requirement.
Alternative Siting Analysis: EPA specified that the rule lacked a
requirement that an alternative siting analysis, required by CAA
section 173(a)(5), be performed by all permit applicants for sources
located within a nonattainment area. CCAPCD has added section
12.1.4.1.k to require a demonstration that the benefits of a proposed
major source or modification significantly outweigh the environmental
and social costs imposed as a result of its location in the non-
attainment area. The language in the March 15, 1999 submittal satisfies
EPA's requirements.
Class I Area Visibility Protection: EPA specified that the rule
lacked the visibility protection requirements of CAA section 169(a) and
described in 40 CFR 51.307. While there are currently no Class I areas
in Clark County, the requirement needed to be incorporated into the
rule. The March 15, 1999 submittal included such provisions in sections
12.2.5.8, 12.2.10.7, 12.2.13.7, 12.2.15.8, 12.2.16.8, and 12.2.17.7 and
satisfies EPA's requirements.
PSD Ambient Air Increments: EPA specified that the rule lacked
``provisions which set the maximum allowable increases in PM-10, SO2,
and NO2 to those increments listed in 40 CFR 51.166(c), for designated
attainment or unclassifiable areas.'' The March 15, 1999 submittal
lists these increments in sections 12.2.5.6, 12.2.15.6, and 12.2.16.6,
and therefore satisfies EPA's requirements.
Offsets: EPA specified that the submitted rule failed to meet the
requirements of CAA section 173, which requires offsets to be federally
enforceable prior to the issuance of an Authority to Construct Permit,
and in effect by the time operation commences. The March 15, 1999
submittal lists this requirement in sections 12.4.1.4, 12.4.2.4,
12.4.3.4, and 12.4.4.4 and therefore satisfies EPA's requirements.
Additional Requirements: EPA specified that the submitted rule
failed to ``require new source review for a source or modification
which becomes major due to a relaxation in a federally-enforceable
limit.'' Section 0.133.b.2 of the March 15, 1999 submittal includes the
following language from the ``major stationary source'' definition in
40 CFR 51.165(a)(5)(ii): ``at such time that a particular source or
modification becomes a major stationary source . . . the requirements
of regulations approved pursuant to this shall apply to the source or
modification as though construction had not yet commenced.'' This
satisfies EPA's requirements.
[[Page 25212]]
Hazardous Air Pollutants: EPA specified that the rule's list of
hazardous air pollutants needed to ``include the pollutants listed in
40 CFR 51.166(b)(23)(I), which are not also regulated by Section
112(b)(1) of the Act.'' The March 15, 1999 submittal includes
definition 0.123, ``Regulated Air Pollutant,'' which satisfies EPA's
requirements under PSD.
Rule 58
Adjustment at Time of Use: EPA noted the submitted rule was not
clear that emission reduction credits (ERCs) must be surplus at time of
use to all federally-enforceable requirements, including, but not
limited to, Reasonably Available Control Technology (RACT)
requirements. Section 58.8 of the January 17, 1997 submittal prescribes
that ERCs must be surplus at the time of use. This satisfies EPA's
requirements.
Prior Shutdowns: EPA specified that the submitted rule must not
disallow ``prior shutdown'' credits as required in 40 CFR
51.165(a)(1)(xxv). Section 58.3.3.1 of the January 17, 1997 submittal
limits shutdown credits as defined by this CFR section. The federal
regulation limits shutdown credits either when the District attainment
plan has been disapproved, or when this plan is not yet due, but a due
date during the creation of this plan is missed. In this case, sources
which seek ERCs due to a shutdown must do so at the time operation of
the source ceases. This section satisfies EPA's requirements.
Property Rights: EPA specified that the submitted rule incorrectly
referred to procedures for banking ERCs ``in a legally protected
manner.'' The January 17, 1997 submittal did not include language
suggesting that banked ERCs could be protected under property rights
laws and, therefore, this submittal can be approved by EPA.
Mobile and Area Sources: EPA specified that the submitted rule
allowed reductions generated by mobile and area sources to be credited
as ERCs which may be used as offsets but failed to provide for the
federal enforceability and quantification of these credits. The January
17, 1997 submittal removed all credits for area and mobile source
reductions and therefore can be approved by EPA.
Final Action and Implications
EPA is promulgating final approval of CCAPCD's NSR program as
submitted on January 17, 1997 and on March 15, 1999. This submittal
consists of Clark County Air Pollution Control Regulations sections 0
(Definitions), 12 (Preconstruction Review for New or Modified
Stationary Sources), and 58 (Emission Reduction Credits).
EPA did not receive any comments on the changes detailed above that
were necessary to make CCAPCD's program fully approvable. The scope of
this approval applies to all new or modified sources (as defined in the
program) within the Clark County Air Pollution Control District.
Scope of This Approval
As discussed above, the submitted rules (0, 12, and 58) contain
provisions which satisfy the federal requirements for approval of
nonattainment New Source Review (NSR) and Prevention of Significant
Deterioration (PSD) programs. In addition, these rules contain
provisions which are outside the scope of the above two programs, such
as requirements for stationary sources of hazardous air pollutants and
requirements for both minor stationary sources and stationary sources
located in attainment areas to obtain emission reduction credits.
Today's approval of rules 0, 12, and 58 is promulgated for the purpose
of meeting the nonattainment and PSD program requirements of the Clean
Air Act only, and does not imply approval of requirements contained in
these rules for any other purpose. Therefore, approval of these rules
does not constitute approval of the CCAPCD requirements to develop a
program to regulate new or modified sources of hazardous air
pollutants, as described by section 112(g) of the Act. In addition,
approval of these rules does not constitute approval of emission
reduction credit programs (such as the ``road paving'' offset program
contained in section 12.4.5 of the current submittal) for the purpose
of ensuring emissions reductions required to reach attainment of the
PM-10 or PM-2.5 national ambient air quality standards.
Administrative Review
Copies of CCAPCD's submittal and other information relied upon for
this final approval are contained in docket number NSRR 2-95 CCAPCD, 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
development of this final approval. The docket is available for public
inspection at the location listed under the ADDRESSES section of this
document.
Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
B. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. This rule is not subject to E.O. 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may
[[Page 25213]]
not issue a regulation that is not required by statute, that
significantly or uniquely affects the communities of Indian tribal
governments, and that imposes substantial direct compliance costs on
those communities, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by the tribal
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's rule does not significantly or uniquely affect
the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., versus U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 12, 1999. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
H. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 52
Environmental Protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides, and
Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of Nevada was approved by the Director of the
Federal Register on July 1, 1982.
Dated: April 21, 1999.
Felicia Marcus,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart DD--Nevada
2. Section 52.1470 is amended by adding paragraphs (c)(36) and
(c)(37) to read as follows:
Sec. 52.1470 Identification of plan.
* * * * *
(c) * * *
(36) On January 17, 1997, regulations for the following Health
District were submitted by the Governor's designee.
(i) Incorporation by reference.
(A) Clark County Air Pollution Control District.
(1) Section 58 revised on December 21, 1995.
(37) On March 15, 1999, regulations for the following Health
District were submitted by the Governor's designee.
(i) Incorporation by reference.
(A) Clark County Air Pollution Control District.
(1) Sections 0 and 12 revised on April 23, 1998.
[FR Doc. 99-11708 Filed 5-10-99; 8:45 am]
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