Clean Air Act Approval and Promulgation of New Source Review Provisions Implementation Plan for Nevada State Clark County Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NV 030-0015; FRL-6339-4]

Clean Air Act Approval and Promulgation of New Source Review

Provisions Implementation Plan for Nevada State Clark County Air

Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is promulgating approval of the new source review

(NSR) program submitted by the Clark County Air Pollution Control

District (CCAPCD) for the purpose of meeting the nonattainment and

prevention of significant deterioration (PSD) NSR requirements of the

Clean Air Act, as amended in 1990 (CAA or the Act). The requested

revision was submitted by the State to satisfy certain Federal

requirements for an approvable nonattainment new source review SIP.

This submittal also satisfies the requirements for a Prevention of

Significant Deterioration (PSD) program. The intended effect of this

rulemaking is to regulate air pollution in accordance with the Act.

Thus, EPA is finalizing the approval of these revisions into the Nevada

state implementation plan (SIP) under provisions of the CAA regarding

EPA action on SIP submittals, SIPs for national primary and secondary

ambient air quality standards and plan requirements for nonattainment

areas.

EFFECTIVE DATE: This action is effective on June 10, 1999.

ADDRESSES: Copies of the rules and EPA's evaluation report for the

rules are available for public inspection at EPA's Region IX office

during normal business hours. Copies of the submitted rules are

available for inspection at the following locations:

Permits Office (Air-3), Air Division, EPA Region IX, 75 Hawthorne

Street, San Francisco, CA 94105

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,

SW, Washington, DC 20406.

Clark County Health District, 625 Shadow Lane, Las Vegas, NV 89127

Nevada Division of Environmental Protection, 333 W. Nye Lane, Carson

City, NV 89710

FOR FURTHER INFORMATION CONTACT: Steve Branoff, Environmental Engineer,

Permits Office (Air-3), Air Division, EPA Region IX, 75 Hawthorne

Street, San Francisco, CA 94105, Telephone: (415) 744-1290.

SUPPLEMENTARY INFORMATION:

Background and Purpose

The air quality planning requirements for nonattainment NSR are set

out in Part D of Title I of the Act, with implementing regulations at

40 CFR 51.160 through 51.165. The air quality planning requirements for

PSD are set out in Part C of Title I of the Act, with implementing

regulations at 40 CFR 51.166. On November 30, 1993, CCAPCD submitted

its NSR rules to EPA as a proposed revision to the SIP. On July 28,

1995, EPA proposed to approve with contingencies, and to disapprove in

the alternative, the submitted SIP revisions. See 61 FR 17675. Full

approval as a final action was contingent upon CCAPCD making required

changes to the submitted rules. EPA requested public comments on the

proposed approval and received none.

CCAPCD has since submitted to EPA revised NSR rules. The revisions

contain the required changes and EPA is therefore promulgating final

approval of the revised rules. The specific changes that CCAPCD made to

its rules are detailed below.

The Clark County Board of Health (the governing board for the

CCAPCD) adopted changes to the new source review rules in

``installments'' at public hearings on December 21, 1995; December 19,

1996; January 23, 1997; April 24, 1997; June 26, 1997, January 22, 1998

and April 23, 1998. There was substantial input from the public and the

regulated community at these

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hearings and the workshops that preceded them.

For Rule 58, CCAPCD submitted the revised rule to the State of

Nevada for inclusion to the SIP on November 18, 1996. The State

submitted Rule 58 to EPA on January 17, 1997. The SIP revision was

reviewed by EPA and determined to be complete on March 10, 1997. For

Rules 0 and 12, CCAPCD submitted the revised rules to the State of

Nevada for inclusion to the SIP on March 3, 1999. The State submitted

Rules 0 and 12 to EPA on March 15, 1999. The SIP revision was reviewed

by EPA and determined to be complete on March 30, 1999.

In its July 28, 1995 proposed approval, EPA identified a number of

deficiencies in CCAPCD's November 30, 1993 submittal which had to be

corrected as a condition of full approval. At that time, CCAPCD had

proposed draft rules which corrected the deficiencies. EPA's technical

support document (TSD) for the July 28, 1995 proposed approval contains

a discussion of how CCAPCD's proposed draft rules would correct the

deficiencies, as well as how they would meet the general NSR

requirements of the Act. The rules in CCAPCD's current submittal are

substantially similar to the draft rules upon which EPA based its

proposed approval. Below is a discussion of the portions of CCAPCD's

January 17, 1997 and March 15, 1999 submittals which correct the

deficiencies identified by EPA.

Corrected Deficiencies

Rule 0

Modification: In its July 28, 1995 proposed approval, EPA specified

that ``the rule fails to require review for modifications which involve

a major increase in actual emissions, but no increase in potential to

emit. To correct this deficiency, calculations in the District rule

must be based on increases in actual emissions.'' In the March 15, 1999

submittal, CCAPCD corrected the definition of modification to reference

a change resulting in a ``net emissions increase.'' As suggested in

EPA's proposed approval, the federal definition of ``net emissions

increase'' was also incorporated into the rule. In concert, these

definitions satisfy EPA's requirement for review of modifications.

Regulated Air Pollutant: EPA specified that ``the definition of

regulated air pollutant in the submitted rule . . . should be corrected

for rule consistency.'' With revisions to the definition in the March

15, 1999 submittal, CCAPCD satisfies EPA's suggestion.

Volatile Organic Compound: EPA's proposed approval described

CCAPCD's definition of Volatile Organic Compound ``contains a list of

substances exempt from regulation as VOCs which is inconsistent with

the exemption list in 40 CFR 51.100(s).'' CCAPCD's March 15, 1999

submittal corrected this discrepancy by incorporating the CFR

definition verbatim. This language satisfies EPA's requirements.

Rule 12

Public Notice: In its July 28, 1995 proposed approval, EPA

specified that a ``thirty-day public comment period should be required

for each permit application, as specified by 40 CFR 51.166(q). All

public comment, oral and written, received within the specified time,

should be considered in making the final decision on the approvability

of the permit application.'' The March 15, 1999 submittal includes

section 12.3.4.2, to require consideration of public comments, and

section 12.3.4 to require a minimum thirty-day public comment period.

The addition of these sections satisfies EPA's requirements.

Variance to Rule Requirements: EPA specified that ``no variance may

be granted to a source required by federal standards to undergo new

source review.'' The March 15, 1999 submittal removed provisions for a

variance to the major source impact analysis for NOX and

therefore satisfies EPA's requirements in that regard.

Fugitive Emissions: EPA's proposed approval explained that

``fugitives must also be included in the major source applicability

determination, defined by a source's potential to emit, for all other

regulated pollutants, if the source belongs to one of the source

categories listed in 40 CFR 51.165(a)(1)(iv)(C).'' Revisions to the

definitions of potential to emit, section 0.116, and stationary source,

section 0.133, ensured that fugitive emissions would be included in

applicability determination. The language in the March 15, 1999

submittal satisfies EPA's requirements.

Additional Impact Analysis for Attainment Pollutants: EPA specified

that the rule failed to require an additional impact analysis for VOC,

lead and CO: ``The rule must be amended to require the additional

impact analysis for pollutants subject to regulation under the Act

which will be emitted by the new source or modifications.'' In sections

12.2.5.7, 12.2.10.6, 12.2.13.6, 12.2.15.7, 12.2.16.7, and 12.2.17.6,

the March 15, 1999 submittal requires such analysis for all criteria

pollutants at major sources and major modifications in attainment

areas. The language satisfies EPA's requirement.

Alternative Siting Analysis: EPA specified that the rule lacked a

requirement that an alternative siting analysis, required by CAA

section 173(a)(5), be performed by all permit applicants for sources

located within a nonattainment area. CCAPCD has added section

12.1.4.1.k to require a demonstration that the benefits of a proposed

major source or modification significantly outweigh the environmental

and social costs imposed as a result of its location in the non-

attainment area. The language in the March 15, 1999 submittal satisfies

EPA's requirements.

Class I Area Visibility Protection: EPA specified that the rule

lacked the visibility protection requirements of CAA section 169(a) and

described in 40 CFR 51.307. While there are currently no Class I areas

in Clark County, the requirement needed to be incorporated into the

rule. The March 15, 1999 submittal included such provisions in sections

12.2.5.8, 12.2.10.7, 12.2.13.7, 12.2.15.8, 12.2.16.8, and 12.2.17.7 and

satisfies EPA's requirements.

PSD Ambient Air Increments: EPA specified that the rule lacked

``provisions which set the maximum allowable increases in PM-10, SO2,

and NO2 to those increments listed in 40 CFR 51.166(c), for designated

attainment or unclassifiable areas.'' The March 15, 1999 submittal

lists these increments in sections 12.2.5.6, 12.2.15.6, and 12.2.16.6,

and therefore satisfies EPA's requirements.

Offsets: EPA specified that the submitted rule failed to meet the

requirements of CAA section 173, which requires offsets to be federally

enforceable prior to the issuance of an Authority to Construct Permit,

and in effect by the time operation commences. The March 15, 1999

submittal lists this requirement in sections 12.4.1.4, 12.4.2.4,

12.4.3.4, and 12.4.4.4 and therefore satisfies EPA's requirements.

Additional Requirements: EPA specified that the submitted rule

failed to ``require new source review for a source or modification

which becomes major due to a relaxation in a federally-enforceable

limit.'' Section 0.133.b.2 of the March 15, 1999 submittal includes the

following language from the ``major stationary source'' definition in

40 CFR 51.165(a)(5)(ii): ``at such time that a particular source or

modification becomes a major stationary source . . . the requirements

of regulations approved pursuant to this shall apply to the source or

modification as though construction had not yet commenced.'' This

satisfies EPA's requirements.

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Hazardous Air Pollutants: EPA specified that the rule's list of

hazardous air pollutants needed to ``include the pollutants listed in

40 CFR 51.166(b)(23)(I), which are not also regulated by Section

112(b)(1) of the Act.'' The March 15, 1999 submittal includes

definition 0.123, ``Regulated Air Pollutant,'' which satisfies EPA's

requirements under PSD.

Rule 58

Adjustment at Time of Use: EPA noted the submitted rule was not

clear that emission reduction credits (ERCs) must be surplus at time of

use to all federally-enforceable requirements, including, but not

limited to, Reasonably Available Control Technology (RACT)

requirements. Section 58.8 of the January 17, 1997 submittal prescribes

that ERCs must be surplus at the time of use. This satisfies EPA's

requirements.

Prior Shutdowns: EPA specified that the submitted rule must not

disallow ``prior shutdown'' credits as required in 40 CFR

51.165(a)(1)(xxv). Section 58.3.3.1 of the January 17, 1997 submittal

limits shutdown credits as defined by this CFR section. The federal

regulation limits shutdown credits either when the District attainment

plan has been disapproved, or when this plan is not yet due, but a due

date during the creation of this plan is missed. In this case, sources

which seek ERCs due to a shutdown must do so at the time operation of

the source ceases. This section satisfies EPA's requirements.

Property Rights: EPA specified that the submitted rule incorrectly

referred to procedures for banking ERCs ``in a legally protected

manner.'' The January 17, 1997 submittal did not include language

suggesting that banked ERCs could be protected under property rights

laws and, therefore, this submittal can be approved by EPA.

Mobile and Area Sources: EPA specified that the submitted rule

allowed reductions generated by mobile and area sources to be credited

as ERCs which may be used as offsets but failed to provide for the

federal enforceability and quantification of these credits. The January

17, 1997 submittal removed all credits for area and mobile source

reductions and therefore can be approved by EPA.

Final Action and Implications

EPA is promulgating final approval of CCAPCD's NSR program as

submitted on January 17, 1997 and on March 15, 1999. This submittal

consists of Clark County Air Pollution Control Regulations sections 0

(Definitions), 12 (Preconstruction Review for New or Modified

Stationary Sources), and 58 (Emission Reduction Credits).

EPA did not receive any comments on the changes detailed above that

were necessary to make CCAPCD's program fully approvable. The scope of

this approval applies to all new or modified sources (as defined in the

program) within the Clark County Air Pollution Control District.

Scope of This Approval

As discussed above, the submitted rules (0, 12, and 58) contain

provisions which satisfy the federal requirements for approval of

nonattainment New Source Review (NSR) and Prevention of Significant

Deterioration (PSD) programs. In addition, these rules contain

provisions which are outside the scope of the above two programs, such

as requirements for stationary sources of hazardous air pollutants and

requirements for both minor stationary sources and stationary sources

located in attainment areas to obtain emission reduction credits.

Today's approval of rules 0, 12, and 58 is promulgated for the purpose

of meeting the nonattainment and PSD program requirements of the Clean

Air Act only, and does not imply approval of requirements contained in

these rules for any other purpose. Therefore, approval of these rules

does not constitute approval of the CCAPCD requirements to develop a

program to regulate new or modified sources of hazardous air

pollutants, as described by section 112(g) of the Act. In addition,

approval of these rules does not constitute approval of emission

reduction credit programs (such as the ``road paving'' offset program

contained in section 12.4.5 of the current submittal) for the purpose

of ensuring emissions reductions required to reach attainment of the

PM-10 or PM-2.5 national ambient air quality standards.

Administrative Review

Copies of CCAPCD's submittal and other information relied upon for

this final approval are contained in docket number NSRR 2-95 CCAPCD, 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

development of this final approval. The docket is available for public

inspection at the location listed under the ADDRESSES section of this

document.

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, Regulatory

Planning and Review.

B. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, EPA may not issue a regulation that is not required by

statute and that creates a mandate upon a State, local or tribal

government, unless the Federal government provides the funds necessary

to pay the direct compliance costs incurred by those governments, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency. This rule is not subject to E.O. 13045 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, EPA may

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not issue a regulation that is not required by statute, that

significantly or uniquely affects the communities of Indian tribal

governments, and that imposes substantial direct compliance costs on

those communities, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by the tribal

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.'' Today's rule does not significantly or uniquely affect

the communities of Indian tribal governments. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., versus U.S. EPA, 427 U.S. 246, 255-66

(1976); 42 U.S.C. 7410(a)(2).

F. 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

annual costs to State, local, or tribal governments in the aggregate;

or to 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 does not

include a Federal mandate that may result in estimated annual 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

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Petitions for Judicial Review

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 July 12, 1999. 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).)

H. Submission to Congress and the Comptroller General

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. This rule is not a

``major'' rule as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

Environmental Protection, Air pollution control, Carbon monoxide,

Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping requirements, Sulfur oxides, and

Volatile organic compounds.

Note: Incorporation by reference of the State Implementation

Plan for the State of Nevada was approved by the Director of the

Federal Register on July 1, 1982.

Dated: April 21, 1999.

Felicia Marcus,

Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart DD--Nevada

2. Section 52.1470 is amended by adding paragraphs (c)(36) and

(c)(37) to read as follows:

Sec. 52.1470 Identification of plan.

* * * * *

(c) * * *

(36) On January 17, 1997, regulations for the following Health

District were submitted by the Governor's designee.

(i) Incorporation by reference.

(A) Clark County Air Pollution Control District.

(1) Section 58 revised on December 21, 1995.

(37) On March 15, 1999, regulations for the following Health

District were submitted by the Governor's designee.

(i) Incorporation by reference.

(A) Clark County Air Pollution Control District.

(1) Sections 0 and 12 revised on April 23, 1998.

[FR Doc. 99-11708 Filed 5-10-99; 8:45 am]

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