99-11708. Clean Air Act Approval and Promulgation of New Source Review Provisions Implementation Plan for Nevada State Clark County Air Pollution Control District  

  • [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]
    BILLING CODE 6560-50-P
    
    
    

Document Information

Effective Date:
6/10/1999
Published:
05/11/1999
Department:
Environmental Protection Agency
Entry Type:
Rule
Action:
Final rule.
Document Number:
99-11708
Dates:
This action is effective on June 10, 1999.
Pages:
25210-25213 (4 pages)
Docket Numbers:
NV 030-0015, FRL-6339-4
PDF File:
99-11708.pdf
CFR: (1)
40 CFR 52.1470