04-17497. Approval and Promulgation of Operating Permits Program; State of Nevada, Clark County Department of Air Quality Management

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a revision to the Clark County Department of Air Quality Management (DAQM) Operating Permits (Title V) Program. Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), we are approving a rule revision that addresses when a timely application for title V permit renewal must be submitted.

DATES:

These rule revisions are effective on October 1, 2004, without further notice, unless EPA receives adverse comments by September 1, 2004. If we receive such comment, we will publish a timely withdrawal in the Federal Register to notify the public that these revisions will not take effect.

ADDRESSES:

Send comments to Gerardo Rios, Permits Office Chief (AIR-3), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 or e-mail to [e-mail]. Comments may also be submitted at http://www.regulations.gov.

You can inspect copies of the submitted rule revision and other supporting documentation relevant to this action during normal business hours at Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105.

You may also see copies of the State's submittal at the Nevada Division of Environmental Protection, 333 W. Nye Lane, Room 138, Carson City, Nevada or at the Clark County Department of Air Quality Management, 500 S. Grand Central Parkway, Las Vegas, Nevada 89155.

FOR FURTHER INFORMATION CONTACT:

Roger Kohn, EPA Region IX, Air Division, Permits Office (AIR-3), at [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

I. The Part 70 Operating Permits Program

A. What is the part 70 operating permits program?

B. What is the federal approval process for revisions to an operating permits program?

II. This action

A. What revision is being approved?

B. Have the requirements for approval been met?

C. Public comment and final action.

III. Statutory and Executive Order Reviews

I. The Part 70 Operating Permits Program

A. What Is the Part 70 Operating Permits Program?

The Clean Air Act Amendments (CAA) of 1990 require all states to develop an operating permits program that meets federal criteria listed in 40 Code of Federal Regulations (CFR) part 70. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the part 70 operating permits program (also known as a Title V program) is to improve enforcement and compliance by issuing each source a single permit that consolidates all of the applicable CAA requirements into a federally-enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

B. What Is the Federal Approval Process for Revisions to an Operating Permits Program?

In order for state regulations to be incorporated into the federally-enforceable part 70 operating permits program, states must formally adopt regulations consistent with state and federal requirements. Once a state regulation is adopted, the state submits it to the EPA for inclusion into the approved operating permits program. The EPA must provide public notice and seek additional public comment regarding the proposed federal action on the state submission. If adverse comments are received, they must be addressed prior to any final federal action by EPA.

II. This Action

A. What Revision Is Being Approved?

EPA is approving a revision to DAQM Section 19, Part 70 Operating Permits, that addresses the submittal of timely permit applications. DAQM revised Section 19.3 to state that for the purposes of permit renewal, a timely and complete application is one that is submitted “between six (6) and eighteen (18) months, prior to the date of permit expiration.” This application deadline is consistent with the Part 70 requirement at 40 CFR 70.5(a)(1)(iii). Currently, the approved title V program requires applications for renewal to be submitted eighteen (18) months prior to the date of permit expiration. Since the rule does not specify whether the 18-month deadline is a minimum or maximum, EPA has interpreted it to be consistent with part 70, which states that eighteen months is the maximum. In cases in which a title V permit required a source to submit an renewal application in accordance with Section 19, but did not specify an amount of time, DAQM's interpretation has been the same as EPA's. However, if a permit specifically required a renewal application to be submitted 18 months prior to permit application, DAQM has interpreted this to mean no later than 18 months prior to the expiration of the permit. EPA is approving this title V program revision, which is the only change requested in DAQM's submittal, in order to clarify that in all cases eighteen months is the earliest date for submittal of a renewal application and six months is the latest date for a renewal application. After this latest date, the application would be considered late.

C. Public Comment and Final Action

EPA is fully approving the revision to DAQM's part 70 operating permits program because it is consistent with Title V of the Clean Air Act and 40 CFR part 70. We are processing this action as a direct final action because we believe the revision of Section 19 is noncontroversial. Therefore, we do not think anyone will object to this approval. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by September 1, 2004, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 1, 2004. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing state operating permits programs submitted pursuant to Title V of the CAA, EPA will approve state programs provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a Part 70 program revision for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a Part 70 program revision, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 October 1, 2004. 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).)

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

Dated: July 16, 2004.

Keith Takata,

Acting Regional Administrator, Region IX.

Part 70, chapter I, 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.

Subpart F—California

2. Appendix A to part 70 is amended by adding under “Nevada” paragraph (c)(3) to read as follows:

APPENDIX A TO PART 70—APPROVAL STATUS OF STATE AND LOCAL OPERATING PERMITS PROGRAMS

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Nevada

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(c) * * *

(3) Revisions were submitted on February 23, 2004, effective October 1, 2004.

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