Clean Air Act Final Interim Approval of the Operating Permits Program for Clark County, Nevada

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

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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.

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[FR Doc. 95-17123 Filed 7-12-95; 8:45 am]

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