[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36070-36072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17123]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5258-3]
Clean Air Act Final Interim Approval of the Operating Permits
Program for Clark County, Nevada
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating interim approval of the title V
operating permits program submitted by the Clark County Health District
(Clark County) 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. In addition, today's action grants final
approval to Clark County's mechanism for receiving delegation of
section 112 standards as promulgated.
EFFECTIVE DATE: August 14, 1995.
ADDRESSES: Copies of Clark County's submittals and other supporting
information used in developing the final approvals are available for
inspection (docket number NV-Clark-95-OPS) during normal business hours
at the following location: U.S. Environmental Protection Agency, Region
IX, Air & Toxics Division, 75 Hawthorne Street, San Francisco, CA
94105.
FOR FURTHER INFORMATION CONTACT: Ed Pike (telephone 415/744-1248), 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 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (Act)), and implementing regulations at 40 Code of
Federal Regulations (CFR) part 70, require that states develop and
submit operating permits 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 March 14, 1995, EPA proposed interim approval of the operating
permits program for Clark County or, if specified changes were made,
full approval. See 60 FR 13683. The County has not modified the program
and EPA is promulgating interim approval. The March 14, 1995 Federal
Register also proposed approval of Clark County's interim mechanism for
implementing section 112(g) and program for delegation of section 112
standards as promulgated. EPA requested public comment on the proposals
and received one comment letter. In this notice, EPA is promulgating
interim approval of Clark County's operating permits program, approving
the section 112(g) and section 112(l) mechanisms noted above, and
responding to the public comment.
II. Final Action and Implications
A. Response to Public Comment on Proposal
EPA received one public comment letter from the National
Environmental Development Association's Clean Air Regulatory Project
(``NEDA/CARP''). The letter opposed EPA's proposed approval of the
County's preconstruction permitting program as a transitional mechanism
for preconstruction review of major air toxics sources under section
112(g) of the Act. The letter also requested that EPA issue an
interpretation of the County rule to reduce the number of significant
permit modifications that are required by the County. EPA did not
receive any other comments on the proposal.
1. Section 112(g) Implementation
The commenter stated that Clark County should not be allowed to use
its existing preconstruction program to determine case-by-case maximum
achievable control technology (MACT) for new, reconstructed, and
modified sources if a transitional program is necessary during an
interim period between promulgation of EPA's 112(g) rule and local
adoption of a 112(g) rule. The commenter stated that Clark County's
preconstruction program may not appropriately address the de minimis
levels and offset requirements in the 112(g) rule.
Section 112(g)(2) of the Clean Air Act prohibits the construction,
reconstruction, and modification of any major source of hazardous air
pollutants after the effective date of a title V program unless the
source meets MACT. EPA has published an interpretive notice in the
Federal Register that interprets section 112(g) to allow State and
local agencies to decide whether to delay implementing 112(g) of the
Act until EPA promulgates a final 112(g) rule unless they choose to
implement the requirements of 112(g) as a matter of state or local law
prior to EPA promulgation of the 112(g) rule. In addition, EPA will
consider whether an additional delay in the effective date of 112(g) is
necessary in the final 112(g) rulemaking. 60 FR 8333 (February 14,
1995). Unless and until EPA provides for such an additional
postponement of section 112(g), however, Clark County must be able to
implement section 112(g) during the period between promulgation of the
federal section 112(g) rule and adoption of implementing County
regulation. Therefore, EPA is approving the use of the County's
preconstruction program as an interim mechanism.
Clark County's preconstruction program will allow the County to
select control measures that would meet MACT, as defined in section
112, and incorporate these measures into a federally enforceable
preconstruction permit, if necessary during a transition period. EPA
believes that the promulgated 112(g) rule will offer the County
sufficient guidance for implementing the requirements of 112(g) prior
to local adoption of the 112(g) rule. EPA believes that, although Clark
County currently lacks a program designed specifically to implement
section 112(g), Clark County's preconstruction review program will
serve as an adequate implementation vehicle during a transition period.
One consequence of the fact that Clark County lacks a program
designed
[[Page 36071]]
specifically to implement section 112(g) is that the applicability
criteria found in its preconstruction review program may differ from
those in the section 112(g) rule. However, whether a particular source
change qualifies as a modification, construction, or reconstruction for
section 112(g) purposes during any transition period will be determined
according to the final section 112(g) rule. EPA expects that Clark
County would be able to issue a preconstruction permit containing a
case-by-case determination of MACT where necessary for purposes of
section 112(g), even if review under its own preconstruction review
program would not be triggered, and would use the applicability
criteria in the final 112(g) rule to determine whether review is
required.
2. Permit Modification Procedures
The commenter stated that Clark County appears to include minor NSR
in the definition of title I modification, and requested that EPA
``clarify'' that minor NSR modifications are not title I modifications
because title I modifications are not eligible for processing as minor
permit modifications. The commenter also requested that the County
allow streamlined processing for minor new source review (NSR) changes
instead of requiring significant permit modifications.
EPA believes that Clark County's permit revision procedures are
consistent with the requirements of part 70 and do not need further
clarification. As noted in EPA's proposal and the commenter's letter,
Clark County requires a significant modification for all title I
modifications. The County's rule includes all New Source Review (NSR)
modifications, including minor NSR changes, in the significant
modification track. For instance, the County requires significant
permit modifications for all changes to case-by-case emissions limits
such as NSR limits and for net emissions increases (District Board of
Health of Clark County Air Pollution Control Regulations, section
19.5). EPA believes that the best reading of the term title I
modification includes minor NSR and is consistent with the County's
rule. See 59 FR 44573. In addition, Sec. 70.7(e)(2)(A)(6) allows the
County to adopt a more inclusive significant permit modification track
than the minimum requirements in part 70. Therefore, EPA is not
requiring that the County change its permit revision procedures.
B. Final Action
1. Title V Operating Permits Program
The EPA is promulgating interim approval of Clark County's title V
operating permits program as submitted on January 12, 1994 and amended
on July 18 and September 21. EPA did not receive any comments on the
changes that are necessary for full approval and is requiring that the
County implement these changes to obtain full approval. The County must
submit enforcement commitments, including commitments to adequately
enforce the part 70 program. The County must also ensure that
provisions concerning confidential business information consistent with
part 70. The County must add a 9-month deadline for issuing early
reductions permits to its rules and modify the following provisions:
operational flexibility, applicable requirements, and insignificant
activities. See 60 FR 13683 (March 15, 1995) for more detailed
information regarding approval issues for Clark County.
The scope of this approval of Clark County's part 70 program
applies to all part 70 sources (as defined in the approved program)
within Clark County, Nevada, except any sources of air pollution over
which an Indian tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-
18 (Nov. 9, 1994). The term ``Indian tribe'' is defined under the Act
as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the Act; see also 59 FR 43956, 43962 (Aug. 25,
1994); 58 FR 54364 (Oct. 21, 1993).
This interim approval, which may not be renewed, extends until
August 13, 1997. During this interim approval period, Clark County is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a federal operating permits program in Clark
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 Clark County fails to submit a complete corrective program for
full approval by February 13, 1997, EPA will start an 18-month clock
for mandatory sanctions. If Clark County 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 Clark County has corrected the deficiency by
submitting a complete corrective program. Moreover, if the
Administrator finds a lack of good faith on the part of Clark County,
both sanctions under section 179(b) will apply after the expiration of
the 18-month period until the Administrator determines that Clark
County has come into compliance. In any case, if, six months after
application of the first sanction, Clark County still has not submitted
a corrective program that EPA has found complete, a second sanction
will be required.
If EPA disapproves Clark County'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 Clark County 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 Clark County, both sanctions under section 179(b) shall
apply after the expiration of the 18-month period until the
Administrator determines that the Clark County has come into
compliance. In all cases, if, six months after EPA applies the first
sanction, Clark County 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 the
Clark County 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 Clark County
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 the Clark County upon interim
approval expiration.
2. County Preconstruction Permit Program Implementing Section 112(g)
EPA is approving the use of Clark County's preconstruction review
program found in Sections zero and 19 as a mechanism to implement
section 112(g) during the transition period between promulgation of
EPA's section 112(g) rule and Clark County's adoption
[[Page 36072]]
of rules specifically designed to implement section 112(g). EPA is
limiting the duration of this approval to 12 months following
promulgation by EPA of the section 112(g) rule, as no difficulties were
identified with the proposed 12-month deadline for adoption of a 112(g)
rule.
3. Program for Delegation of Section 112 Standards as Promulgated
Requirements for part 70 program approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for approval of a
program for delegation of section 112 standards as promulgated by EPA
as they apply to part 70 sources. Section 112(l)(5) requires that Clark
County's program contain adequate authorities, adequate resources for
implementation, and an expeditious compliance schedule, which are also
requirements under part 70. Therefore, EPA is also promulgating
approval under section 112(l)(5) and 40 CFR 63.91 of Clark County's
program for receiving delegation of section 112 standards that are
unchanged from the federal standards as promulgated. This program for
delegations applies to both existing and future standards but is
limited to sources covered by the part 70 program.
III. Administrative Requirements
A. Docket
Copies of Clark County's submittal and other information relied
upon for the final interim approval, including the public comment
letter received by EPA, are contained in docket number NV-Clark-95-OPS
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
review under 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 these
actions do not impose any new requirements, they do not have a
significant impact on a substantial number of small entities.
D. 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
costs to state, local, or tribal governments in the aggregate; or to
the 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 today does
not include a federal mandate that may result in estimated 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
federal requirements. Accordingly, no additional costs to state, local,
or tribal governments, or to the private sector, result from this
action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Operating permits, Reporting and recordkeeping requirements.
Dated: July 5, 1995.
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. In Appendix A to part 70 the entry for Nevada is amended by
adding introductory text and paragraph (c) to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Nevada
The following district program was submitted by the Nevada Division
of Environmental Protection on behalf of:
* * * * *
(c) Clark County Air Quality Management District: submitted on
January 12, 1994 and amended on July 18 and September 21, 1994; interim
approval effective on August 14, 1995; interim approval expires August
13, 1997.
* * * * *
[FR Doc. 95-17123 Filed 7-12-95; 8:45 am]
BILLING CODE 6560-50-P
