[Federal Register Volume 59, Number 163 (Wednesday, August 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20812]
[[Page Unknown]]
[Federal Register: August 24, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 63 and 70
[AD-FRL-5057-7]
Clean Air Act Proposed Interim Approval of the Operating Permits
Program; Washoe County District Health Department, Nevada
AGENCY: Environmental Protection Agency.
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes interim approval of the operating permits
program submitted by the Washoe County District Health Department
(Washoe or District) 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.
DATES: Comments on this proposed action must be received in writing by
September 23, 1994.
ADDRESSES: Comments should be addressed to Celia Bloomfield, Mail Code
A-5-2, U.S. Environmental Protection Agency, Region IX, Air & Toxics
Division, 75 Hawthorne Street, San Francisco, CA 94105.
Copies of the District's submittal and other supporting information
used in developing the proposed rule are available for inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Celia Bloomfield (telephone 415/744-
1249), 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
As required under title V of the Clean Air Act (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 the 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 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.
II. Proposed Action and Implications
This document focuses on specific elements of Washoe's title V
operating permits program submittal that must be corrected to meet the
requirements of 40 CFR part 70. The full program submittal, the
Technical Support Document containing a detailed analysis of the full
program, and other relevant materials are available as part of the
public docket.
A. Analysis of State Submission
1. Support Materials
Washoe submitted its title V operating permits program on November
18, 1993, and the program was found complete on January 13, 1994.
Washoe is authorized by State law (Nevada Revised Statues (NRS)
445.546) to develop and administer this program for the District.
Washoe's title V submittal includes a letter from the District Health
Officer requesting program approval and a legal opinion from the
District Attorney stating that Washoe has adequate authority to carry
out all aspects of the program. Washoe's program also contains a
complete program description, District implementing and supporting
regulations, and all other program documentation required by
Sec. 70.4(b), elements of the initial program submission. State
statutes were submitted separately by the Nevada Division of
Environmental Protection. Washoe's submittal also includes a proposed
implementation agreement defining District and EPA responsibilities and
commitments for administering the program. EPA and Washoe will work to
finalize this agreement prior to final approval.
2. Regulations and Program Implementation
Washoe's District Board of Health Regulations Governing Air Quality
Management were revised on October 20, 1993 to provide for the
implementation of a title V operating permits program. These
regulations substantially meet the requirements of 40 CFR part 70,
Sec. Sec. 70.2 and 70.3 for applicability; Sec. Sec. 70.4, 70.5, and
70.6 for permit content, including operational flexibility; Sec. 70.7
for public participation and minor permit modifications; Sec. 70.5 for
criteria that define insignificant activities; Sec. 70.11 for
requirements for enforcement authority; and Sec. 70.5 for complete
application forms. There are a few program deficiencies that are
outlined below as interim approval issues and detailed further in the
Technical Support Document.
Washoe has authority under State and local law to issue a variance
from State and local requirements. These variance provisions are
contained in Nevada Revised Statutes 445.506, 445.511, 445.516, 445.521
and 445.546, and by District regulations 020.0051, 020.020, 020.0251,
020.0253, and 020.0254. These provisions allow the Hearing Board
discretion to grant relief from compliance with District rules and
regulations. The EPA regards these provisions as wholly external to the
program submitted for approval under part 70, and consequently is
proposing to take no action on these provisions of local law. In
addition, the EPA has no authority to approve provisions of local law,
such as the variance provisions referred to, that are inconsistent with
the Act. The EPA does not recognize the ability of a permitting
authority to grant relief from the duty to comply with a federally
enforceable part 70 permit, except where such relief is granted through
procedures allowed by part 70. A part 70 permit may be issued or
revised (consistent with part 70 permitting procedures) to incorporate
those terms of a variance that are consistent with applicable
requirements. A part 70 permit may also incorporate, via part 70 permit
issuance or modification procedures, the schedule of compliance set
forth in a variance. However, EPA reserves the right to pursue
enforcement of applicable requirements notwithstanding the existence of
a compliance schedule in a permit to operate. This is consistent with
40 CFR 70.5(c)(8)(iii)(C), which states that a schedule of compliance
``shall be supplemental to, and shall not sanction noncompliance with,
the applicable requirements on which it is based.'' EPA's policy on
variances is supported by District rule 020.0254(I) that states that
variances may not be issued from any requirement established or
promulgated under the Act.
3. Permit Fee Demonstration
Section 502(b)(3) of the Act requires that each permitting
authority collect fees sufficient to cover all reasonable direct and
indirect costs required to develop and administer its title V operating
permits program. Each title V program submittal must contain either a
detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from title V sources meet or exceed $25 per
ton per year (adjusted from 1989 by the Consumer Price Index (CPI)).
The $25 per ton amount is presumed, for program approval, to be
sufficient to cover all reasonable program costs and is thus referred
to as the ``presumptive minimum,'' (Sec. 70.9(b)(2)(i)).
Washoe has opted to make a presumptive minimum fee demonstration.
Washoe's fee schedule is based on average pounds of pollutants emitted
per day. Title V sources in Washoe County are charged fees of $10 per
average pound per day, an amount determined by the District to cover
the direct and indirect costs of the program. Because the fee schedule
(mathematically equivalent to $54.79 per ton per year) exceeds the
presumptive minimum, Washoe was not required to submit a detailed fee
demonstration. As required by Sec. 70.9(b)(2)(iv), these fees will be
increased each year by an amount equal to or greater than the Consumer
Price Index (030.310). In addition, sources are subject to application
review fees. Finally, Washoe has committed to provide future accounting
demonstrations and to make revisions to its fee structure if necessary.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Title III--Washoe has demonstrated in its title V program
submittal broad legal authority to incorporate into permits and enforce
all applicable requirements; however, Washoe has also indicated that
additional regulatory authority may be necessary to carry out specific
section 112 activities. Washoe has therefore supplemented its broad
legal authority with a commitment to ``adopt any future standards and
regulations related to section 112 in a timely manner as they are
promulgated by EPA,'' (Letter from David Rice, Governor's designee,
November 10, 1993). EPA has determined that this commitment, in
conjunction with the broad statutory authority, adequately assures
compliance with all section 112 requirements. The EPA regards this
commitment as an acknowledgement by Washoe of its obligation to obtain
further regulatory authority as needed to issue permits that assure
compliance with section 112 applicable requirements. This commitment
does not substitute for compliance with part 70 requirements that must
be met at the time of program approval.
EPA is interpreting the above legal authority and commitment to
mean that Washoe 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.
b. Title IV--Washoe has committed in a letter from David Rice
(dated February 9, 1994) 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.
B. Options for Approval/Disapproval and Implications
1. Title V Operating Permits Program Under the Authority of Section 502
of the Act
The EPA is proposing to grant interim approval to the operating
permits program submitted by the Nevada Division of Environmental
Protection on behalf of the Washoe County District Health Department on
November 18, 1993. Following interim approval, Washoe must make the
following changes to receive full approval:
(1) Revise insignificant activity provisions so that they comply
with Sec. 70.5(c). Specifically, 030.905(B)(3) must state that any
activity at a title V facility that is subject to an applicable
requirement may not qualify as an insignificant activity. Because
Washoe defines insignificant activities by size, both rule
030.020(C)(4) and the application form must require the applicant to
list all insignificant activities in enough detail to determine
applicability and fees, and to impose any applicable requirements.
(2) Revise 030.020 to state that each application must contain the
following information: (a) Description of any processes and products
associated with alternate scenarios (Sec. 70.5(c)(2)); (b) description
of compliance monitoring devices or activities (Sec. 70.5(c)(3)(v));
(c) when emissions trading provisions are requested by a source,
proposed replicable procedures and permit terms
(Sec. 70.4(b)(12)(iii)); and (d) statement that the source will, in a
timely manner, meet all applicable requirements that will become
effective during the permit term (Sec. 70.5(c)(8)). EPA has also noted
in the Technical Support Document recommended revisions to Washoe's
permit application form so that the form will better reflect the
information required by regulation. In addition, rule 030.020 must
clearly require that any application form, report, or compliance
certification submitted in the permit application include a
certification based on information and belief formed after reasonable
inquiry. (Sec. 70.5(d))
(3) Add a provision to the rule that imposes a general duty on the
permit applicant to submit supplementary facts or corrected information
upon becoming aware of any failure to submit relevant facts or
submittal of incorrect information. (Sec. 70.5(b))
(4) Revise 030.930 to provide public notice ``by other means if
necessary to assure adequate notice to the affected public.''
(Sec. 70.7(h)(1))
(5) Revise 030.960(C)(8) to state that the certifications must be
based on information and belief formed after reasonable inquiry.
(Sec. Sec. 70.6(c)(1) and 70.5(d))
(6) Revise 030.970(B) to state that schedules for compliance shall
resemble and be at least as stringent as that contained in any judicial
consent decree or administrative order. (Sec. Sec. 70.5(c)(8)(iii)(C)
and 70.6(c)(3))
(7) Revise 030.950(E) to ensure that all significant permit
modifications, other than those requiring an Authority to Construct,
may not be placed into operation until the permitting authority has
revised the source's part 70 permit. Washoe's program currently
provides this implementation time frame for modifications requiring an
Authority to Construct and modifications that are prohibited by an
existing permit; however, the time frame must be extended to the
remaining universe of significant modifications. (Sec. 70.5(a)(1)(ii))
The above program deficiencies must be corrected before Washoe can
receive full program approval. EPA may propose to grant interim
approval at this time because the program ``substantially meets'' the
requirements of part 70 (Sec. 70.4(d)(1)). This interim approval, which
may not be renewed, extends for a period of up to 2 years. During the
interim approval period, the District is protected from sanctions for
failure to have a program, and EPA is not obligated to promulgate a
Federal permits program in the District. 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 EPA's final action granting interim approval, as
does the 3-year time period for processing initial permit applications.
2. District Preconstruction Permit Program Implementing Section 112(g)
of the Act
As a condition of approval of the operating permits program, Washoe
is required to implement section 112(g) of the Act from the effective
date of the title V program. Imposition of case-by-case determinations
of MACT or offsets under section 112(g) will require the use of a
mechanism for establishing federally enforceable restrictions on a
source-specific basis. The EPA is proposing to approve Washoe's
preconstruction permitting program found in District rules 030.000 and
030.002 under the authority of title V and part 70 solely for the
purpose of implementing section 112(g) during the transition period
between title V approval and adoption of a District rule implementing
EPA's section 112(g) regulations. EPA believes this approval is
necessary so that Washoe has a mechanism in place to establish
federally enforceable restrictions for section 112(g) purposes from the
date of title V approval. Although section 112(l) generally provides
the authority for approval of state air toxics programs, title V and
section 112(g) provide authority for this limited approval because of
the direct linkage between implementation of section 112(g) and title
V. The scope of this approval is narrowly limited to section 112(g),
and does not confer or imply approval for purposes of any other
provision under the Act. If Washoe does not wish to implement section
112(g) through its preconstruction permit program and can demonstrate
that an alternative means of implementing section 112(g) exists, the
EPA may, in its final approval action approve the alternative instead.
This approval of Washoe's preconstruction permit program as a
section 112(g) mechanism is for an interim period only, until the
District is able to adopt regulations consistent with regulations
promulgated by EPA to implement section 112(g). Accordingly, EPA is
proposing to limit the duration of this approval to a reasonable time
following EPA's final promulgation of section 112(g) regulations so
that Washoe, acting expeditiously, will be able to adopt regulations
consistent with the section 112(g) regulations. The EPA is proposing
here to limit the duration of this approval to 12 months following
promulgation by EPA of section 112(g) regulations. Comment is solicited
on whether 12 months is an appropriate period considering Washoe's
procedures for adoption of regulations.
3. Program for Straight Delegation of Section 112 Standards Under the
Authority of Section 112(l) of the Act
Requirements for title V 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
Washoe'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 Washoe's
program for receiving delegation of section 112 standards that are
unchanged from the Federal standards as promulgated.
Washoe has informed EPA that it intends to employ incorporation by
reference as the mechanism for accepting straight delegation of section
112 standards. The details of this delegation mechanism will be set
forth in a Memorandum of Agreement between Washoe and EPA, expected to
be completed prior to approval of Washoe's section 112(l) program for
straight delegations. This program applies to both existing and future
standards but is limited 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
interim approval. Copies of Washoe'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 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
process; and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by September 23, 1994.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysisassessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603, 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
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. Therefore,
because this action does not impose any new requirements, it does not
have a significant impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-state relationship under the
Act, preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action.The
Act forbids EPA to base its actions concerning operating permits
programs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S.
246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2).
If the interim approval is converted to a disapproval, it will not
affect any existing District requirements applicable to small entities.
Federal disapproval of the District's submittal does not affect its
state enforceability. Moreover, EPA's disapproval of the submittal does
not impose any new Federal requirements. Therefore, EPA certifies that
conversion from interim approval to disapproval would not have a
significant impact on a substantial number of small entities because it
does not remove existing District requirements nor does it substitute
any new Federal requirements.
Authority: 42 U.S.C.7401-7671q.
Dated: August 5, 1994.
Nora L McGee,
Acting Regional Administrator.
[FR Doc. 94-20812 Filed 8-23-94; 8:45 am]
BILLING CODE 6560-50-F
