Clean Air Act Proposed Full/Interim Approval of Title V Operating Permits Program; Clark County Health District, Nevada

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5172-5]

Clean Air Act Proposed Full/Interim Approval of Title V Operating

Permits Program; Clark County Health District, Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes interim approval of the Operating Permits

Program submitted by Nevada's Clark County Health District.

Alternatively, EPA proposes to grant full approval if specified changes

are made. Clark [[Page 13684]] County's Operating Permit Program was

submitted for the purpose of complying with Federal requirements which

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

April 13, 1995.

ADDRESSES: Comments should be addressed to Ed Pike at the Region IX

address below. Copies of the State's submittal and other supporting

information used in developing the proposed rule are available for

inspection during normal business hours at the following location: US

EPA, 75 Hawthorne Street, San Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT: Ed Pike (telephone 415/744-1248), Mail

Code A-5-2, US EPA, Region IX, Air & Toxics Division, 75 Hawthorne

Street, San Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the Clean Air Act (``the 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 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 one year after receiving the submittal. 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 two years. If EPA has not fully approved a program by

two 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

A. Analysis of State Submission

The analysis in this notice focuses on the specific elements of

Clark County's title V program that must be corrected to meet the

minimum requirements of 40 CFR part 70. The full program submittal, the

Technical Support Document, and other relevant materials are available

for inspection as part of the public docket. The docket may be viewed

during regular business hours at the address listed above.

1. Support Materials

The Clark County Health District (``District''), which is delegated

authority to implement part 70 under state law (Nevada Revised Statues

``NRS'' section 445.546), submitted an administratively complete part

70 permitting program on January 20, 1994 with a letter requesting

EPA's approval. The submittal contained regulations adopted by the

District Board of Health on November 18, 1993. The District Counsel

concurrently submitted an opinion that the Health District has

sufficient authority to implement the program. The District adopted

several rule modifications on May 26, 1994 and submitted these

modifications on July 18, 1994.

The submittal contains a description of how the District will

implement the program consistent with the Clean Air Act Amendments of

1990 (42 U.S.C. 7401-7671q) and 40 CFR part 70. The submittal also

includes sample permits, permit applications, and reporting forms. EPA

intends to develop an implementation agreement with the District by the

time EPA takes final action on the program.

2. Title V Regulations and Program Implementation

The District adopted section nineteen and revised section zero of

the Air Pollution Control Regulations to meet the requirements of part

70. The District also relies on sections two, four, five, six, seven,

eight, nine, ten, and eighteen of its Air Pollution Control Regulations

(``APCR'') to implement the permitting program consistent with part 70

requirements.

a. Applicability (40 CFR 70.2 and 70.3): The District will permit

all major sources and all acid rain sources as required by part 70. The

District will also permit non-major sources subject to New Source

Performance Standards or National Emission Standards for Hazardous Air

Pollutants. (APCR section 19.3)

b. Permit Content (40 CFR 70.6): Each part 70 permit must contain

emission limitations and standards based on all applicable emission

limitations as well as monitoring, recordkeeping, and other compliance

terms sufficient to ensure compliance with all applicable requirements.

Sources may request provisions for operational flexibility. (APCR

sections 19.4 and 19.7)

c. Public Participation and EPA oversight (40 CFR 70.7): The public

will be provided notice of and an opportunity to comment on each

proposed part 70 source permit, permit renewal, and significant

modification. Each part 70 permit, permit renewal, significant

modification, and minor permit modification is subject to EPA oversight

and veto. (APCR section 19.5)

d. Variances (40 CFR 70.11): Variances may not be granted from

either applicable requirements or part 70 requirements. Therefore, the

variance provisions of the rule will not affect the enforcement

authority required under part 70. (May 26, 1994 amendment to APCR

section 7)

e. Permit Modifications (40 CFR 70.7): Sources may apply for

expedited permit changes for minor permit modifications. Significant

modifications must undergo the full part 70 permit issuance procedures.

Significant modifications include all title I modifications and all

changes to case-by-case emissions limits such as New Source Review

limits. (APCR section 19.5)

3. Permit Fee Demonstration

Clark County will collect permit and emissions-based fees that are

projected at $289,000 ($33.16 per ton of pollutant subject to the

presumptive minimum) by the end of the ramp-up period in 1995 and

$387,000 in 1996. Fees will be adjusted annually by the Consumer Price

Index beginning in 1997. The District's fees for the first four years

of the program exceed, in the aggregate, the fees presumed sufficient

to fund the program (40 CFR 70.9). Therefore, EPA believes that the

County will collect sufficient fees to implement the part 70 permitting

program.

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Title III--The District has demonstrated in its title V program

submittal broad legal authority to incorporate into permits and enforce

all applicable requirements, including section 112 standards. The

District also made a commitment to implement all section 112

requirements (July 18, 1994 program update). The EPA regards the

program submittal and commitment as a demonstration that the District

currently has statutory and regulatory authority to carry out all

section 112 requirements [[Page 13685]] required by part 70 and an

acknowledgment by the District that it is obligated to obtain any

further regulatory authority needed to issue permits that assure

compliance with section 112 applicable requirements.

EPA is interpreting the above legal authority and commitment to

mean that the District 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,

Director of EPA's Office of Air Quality Planning and Standards.

b. Title IV--The District committed in its July 18, 1994 program

update 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. The District

has drafted, but not officially adopted, the necessary regulations. EPA

anticipates that these regulations will be adopted by the time EPA

takes final action on this program.

B. Options for Approval/Disapproval and Implications

1. Changes Necessary for Full Approval

EPA is proposing to grant full approval under section 502 of the

Act to the program if the changes listed below are made. If the

District has not adopted regulations incorporating these provisions and

submitted them to EPA as part of its operating permit program by the

time EPA takes final rulemaking action, EPA will grant the District's

program interim approval at that time. Please refer to the Technical

Support Document, which is included in the docket, for additional

details.

a. Enforcement Commitments. The District must submit documentation

and commitments for implementing its enforcement and compliance

tracking program. Part 70 requires that the District submit enforcement

policies, including agreements with the EPA, and a description of the

District's enforcement program, compliance tracking activities, and

inspection strategies. (40 CFR 70.4(b)(4) and (5)) In addition, failure

to act on violations of permits or other program requirements, failure

to seek adequate penalties and fines and collect all assessed penalties

and fines, and failure to inspect and monitor activities subject to

regulation are grounds for withdrawing program approval. (40 CFR

70.10(c)(iii)) Therefore, the District must submit the descriptions

and/or commitments required under sections 70.4(b)(4) and (5) to

qualify for full approval and should ensure that the commitments meet

the criteria in section 70.10(c)(iii).

b. Operational Flexibility Gatekeeper. The District's operational

flexibility gatekeeper (APCR section 19.4.1.8) is not explicitly as

broad as the section 70.4(b)(12) gatekeeper for section 502(b)(10)

changes. Part 70 prohibits operational flexibility for ``modifications

under any provision of title I of the Act.'' In contrast, the District

prohibits these changes for any ``New Source Review modifications under

any provision of title I of the Act,'' which does not expressly include

modifications under sections 111 and 112. EPA expects that most section

111 or 112 modifications will be subject to the District's New Source

Review program; however, in certain cases the section 111 or 112

modification definition will be more inclusive than the District's New

Source Review rule. Therefore, revising the rule to explicitly prohibit

section 502(b)(10) changes for all title I modifications is a

requirement for full approval.

c. Confidential Business Information. The District Counsel's

opinion does not document that the District's definition of

confidential business information (``CBI''), which is not available to

the public, is as narrow as EPA's. Section 19.3.1.3 states that

``emissions'' may not be considered confidential. EPA's regulation

states that ``emissions data'' may not be considered confidential. (40

CFR 2.301) The District must adopt EPA's narrower definition of

confidential information. Alternatively, the District Counsel must

issue a statement that the District's program does not contain more

restrictions on public access to information than the federal

regulations.

d. Insignificant Activities. The District submitted criteria

defining which units that are not subject to the part 70 permitting

program. For criteria pollutants, the rule exemption threshold is based

on potential emissions of either one or two tons per year. EPA believes

these criteria pollutant thresholds are acceptable. The rule also

exempts units with potential emissions of 200 pounds per year of

hazardous air pollutants (HAPs). EPA believes that this threshold is

acceptable except for very hazardous substances for which EPA has

promulgated or proposed a lower title I modification threshold. To

receive full approval, the District's exemption should be no less

stringent than these thresholds. In addition, the program must require

sources to identify permit exemptions on their applications. (40 CFR

70.5(c)).

e. Applicable Requirements and National Ambient Air Quality

Standards (NAAQS). The District must add NAAQS, visibility, and

increment requirements for temporary sources to the definition of

applicable requirements (40 CFR 70.3). Sources that temporarily operate

at multiple locations, such as non-metallic minerals processors or

asphalt batch plants, may qualify for temporary source permits. The

temporary source permits issued to these sources must require

compliance with applicable requirements, as defined in part 70, at each

location.

f. Early reductions permit deadline. The District must add a

deadline of nine months or less for early reductions permits issued

under section 112(i)(5) of the Act (40 CFR 70.4(b)(11)).

2. Interim Approval

The program substantially meets the requirements of part 70 as

required under section 70.4. The EPA proposes to grant interim approval

to the operating permits program submitted by the District on January

20, 1994 and updated on July 18, 1994 if the changes listed above are

not made prior to the final action on the program. This interim

approval would be changed to a full approval if the County subsequently

makes the changes necessary for full approval. Permits issued under a

program with interim approval have full standing with respect to part

70, and the one year time period for submittal of permit applications

by subject sources begins upon interim approval, as does the three year

time period for processing the initial permit applications.

3. Sanctions and Federal Program

If EPA were to finalize this proposed interim approval, it would

extend for two years following the effective date of final interim

approval, and could not be renewed. During the interim approval period,

the District would be protected from sanctions, and EPA would not be

obligated to promulgate, administer and enforce a Federal permits

program in Clark County.

Following final interim approval, if the District failed to submit

a complete corrective program for full approval by the date 6 months

before expiration of the interim approval, EPA would start an 18-month

clock for mandatory sanctions. If the District then failed to submit a

corrective program that EPA found complete before the expiration of

that 18-month period, EPA would be required to apply one of the

sanctions in section 179(b) of the Act, which would remain in effect

until EPA determined that the District had corrected the deficiency by

submitting a [[Page 13686]] complete corrective program. Moreover, if

the Administrator found a lack of good faith on the part of the

District, both sanctions under section 179(b) would apply after the

expiration of the 18-month period until the Administrator determined

that the District had come into compliance. In any case, if, six months

after application of the first sanction, the District still had not

submitted a corrective program that EPA found complete, a second

sanction would be required.

If, following final interim approval, EPA were to disapprove the

District's complete corrective program, EPA would 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 the

District had submitted a revised program and EPA had determined that it

corrected the deficiencies that prompted the disapproval. Moreover, if

the Administrator found a lack of good faith on the part of the

District, both sanctions under section 179(b) would apply after the

expiration of the 18-month period until the Administrator determined

that the District had come into compliance. In all cases, if, six

months after EPA applied the first sanction, the District had not

submitted a revised program that EPA had determined corrected the

deficiencies that prompted disapproval, a second sanction would be

required.

In addition, discretionary sanctions may be applied where warranted

any time after the end of an interim approval period if the District

has not timely submitted a complete corrective program or EPA has

disapproved a submitted corrective program. Moreover, if EPA has not

granted full approval to the District's program by the expiration of an

interim approval and that expiration occurs after November 15, 1995,

EPA must promulgate, administer and enforce a Federal permits program

for the District upon interim approval expiration.

4. Approval of Preconstruction Program for Section 112(g) Case-by-Case

MACT Determinations

Clark County will be required to implement the Maximum Achievable

Control Technology requirements of section 112(g) of the Act as a

component of the part 70 program. The EPA is proposing to approve the

District's preconstruction permitting program, found in section 12 of

the District rules, under the authority of title V and part 70 solely

for the purpose of implementing section 112(g) during the transition

period between the effective date of 112(g) and District adoption of a

112(g) rule. EPA has published an interpretive notice in the Federal

Register that interprets section 112(g) to allow State and local

agencies to delay implementing 112(g) of the Act until EPA promulgates

a final 112(g) rule. Alternatively, State and local agencies may

implement the requirements of 112(g) prior to EPA promulgation of the

112(g) rule as a matter of State or local law. 60 FR 8333 (February 14,

1995) The notice also states that EPA is considering whether to further

delay the effective date of section 112(g) beyond the date of

promulgation of the Federal rule so as to allow State and local

agencies time to adopt rules implementing the Federal rule. EPA will

provide for any such additional delay in the final section 112(g)

rulemaking. Unless and until EPA provides for such an additional

postponement of section 112(g), the District must be able to implement

section 112(g) during the period between promulgation of the Federal

section 112(g) rule and adoption of implementing District regulations

and may choose to implement section 112(g) sooner as a matter of local

law.

For this reason, EPA is proposing to approve the District's

preconstruction review program as a mechanism to implement section

112(g) during the transition period between promulgation of the section

112(g) rule and District adoption of rules specifically designed to

implement section 112(g). However, since approval is intended solely to

confirm that State and local agencies have a mechanism to implement

section 112(g) during the transition period, the approval itself will

be without effect if EPA decides in the final section 112(g) rule that

there will be no transition period. The EPA is proposing that twelve

months will be adequate for the District to adopt implementing

regulations but solicits comments on whether this timeframe will be

adequate.

5. Approval of Program for Straight Delegation of Section 112 Standards

Under the Authority of Section 112(l) of the Act

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of section 112 General Provisions subpart A and standards as

promulgated by EPA as they apply to part 70 sources. Section 112(l)(5)

requires that the District'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 the District's program for receiving delegation of section 112

standards that are unchanged from Federal standards as promulgated.

This program for delegations only applies 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

full/interim approval. Copies of the State'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 full/

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/

disapproval process, and

(2) to serve as the record in case of judicial review. The EPA will

consider any comments received by April 13, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from 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 permits programs

submitted to satisfy the requirements of 40 CFR Part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

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.

Authority: 42 U.S.C. 7401, et seq.

Dated: February 25, 1995.

Felicia Marcus,

Regional Administrator.

[FR Doc. 95-6267 Filed 3-13-95; 8:45 am]

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