[Federal Register Volume 60, Number 3 (Thursday, January 5, 1995)]
[Rules and Regulations]
[Pages 1741-1744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-253]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5134-2]


Clean Air Act Final Interim Approval of the Operating Permits 
Program; Washoe County District Health Department, Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is promulgating 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.

EFFECTIVE DATE: March 6, 1995.

ADDRESSES: Copies of the District's submittal and other supporting 
information used in developing the final interim approval are available 
for inspection (docket number NV-WSH-94-1-OPS) 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

    Title V of the Clean Air Act (Act), and implementing regulations at 
40 CFR part 70 require that states develop and submit operating permit 
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 August 24, 1994, EPA proposed interim approval of the operating 
permits program for Washoe County, Nevada. See 59 FR 43523. The August 
24, 1994 Federal Register document also proposed approval of Washoe's 
interim mechanism for implementing section 112(g) and program for 
delegation of section 112 standards as promulgated. Public comment was 
solicited on these proposed actions. EPA received one comment on the 
section 112(g) proposal and is responding to that comment in this 
document and in a separate ``Response to Comments'' document that is 
available in the docket. The proposed actions have not been altered as 
a result of public comment or for any other reason. Hence, this final 
rule is granting interim approval to Washoe's operating permits program 
and approving the 112(g) and 112(l) mechanisms noted above.

II. Final Action and Implications

A. Analysis of State Submission

    Washoe's title V operating permits program was submitted by the 
Nevada Division of Environmental Protection, on behalf of Washoe, on 
November 18, 1993 and found to be complete on January 13, 1994. The 
regulations that comprise the program were adopted by the Washoe County 
District Board of [[Page 1742]] Health on October 20, 1993. EPA 
proposed interim approval, in accordance with Sec. 70.4(d), on August 
24, 1994 (59 FR 43523) on the basis that the program ``substantially 
meets'' part 70 requirements. The analysis in the proposed document 
remains unchanged and will not be repeated in this final document. The 
program deficiencies identified in the proposed document, and outlined 
below, also remain unchanged and must be corrected for the District to 
have a fully approvable program.
    At the time of proposal, EPA believed that an implementation 
agreement would be completed prior to final interim approval. EPA and 
Washoe have not yet finalized the implementation agreement, however, 
but are working to do so as soon as practicable.
    As discussed in the proposed document, Washoe has authority under 
State and local law to issue a variance from State and local 
requirements. The EPA would like to reiterate that the Agency has no 
authority to approve provisions of state or local law that are 
inconsistent with the Act, and 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.

B. Public Comment

    EPA received one public comment regarding the proposed approval of 
Washoe's preconstruction permitting program 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. In opposition to the proposed action, one commenter 
argued that Washoe should not, and cannot, implement section 112(g) 
until: (1) EPA has promulgated a section 112(g) regulation; and (2) the 
District has a section 112(g) program in place.
    EPA disagrees with the commenter's contention that section 112(g) 
does not take effect until after EPA has promulgated implementing 
regulations. The statutory language in section 112(g)(2) prohibits the 
modification, construction, or reconstruction of a source after the 
effective date of a title V program unless MACT (determined on a case-
by-case basis, if necessary) is met. The plain meaning of this 
provision is that the prohibition takes effect on the effective date of 
title V regardless of whether EPA or a state has promulgated 
implementing regulations.
    The EPA has acknowledged that states may encounter difficulties 
implementing section 112(g) prior to the promulgation of final EPA 
regulations (See June 28, 1994 memorandum entitled, ``Guidance for 
Initial Implementation of Section 112(g),'' signed by John Seitz, 
Director of the Office of Air Quality Planning and Standards.) EPA has 
issued guidance, in the form of a proposed rule, which may be used to 
determine whether a physical or operational change at a source is not a 
modification either because it is below de minimis levels or because it 
has been offset by a decrease of more hazardous emissions. See 59 FR 
15004 (April 1, 1994). The EPA believes the proposed rule provides 
sufficient guidance to Washoe and sources until such time as EPA's 
section 112(g) rulemaking is finalized.
    The EPA is aware that Washoe lacks a program designed specifically 
to implement section 112(g). However, Washoe does have authority to 
regulate hazardous air pollutants (HAP) in its preconstruction review 
program, and hence, the preconstruction review program can serve as a 
procedural vehicle for rendering a case-by-case MACT or offset 
determination federally enforceable. The EPA believes Washoe's 
preconstruction review program will be adequate because it will allow 
Washoe to select control measures that would meet MACT, as defined in 
section 112, and incorporate those measures into a federally 
enforceable preconstruction permit. By approving Washoe's 
preconstruction review program under the authority of title V and part 
70, EPA is clarifying that it may be used for the purpose of 
implementing section 112(g) during the transition period.
    One consequence of the fact that Washoe lacks a program designed 
specifically to implement section 112(g) is that the applicability 
criteria found in its preconstruction review program may differ from 
those in section 112(g). However, whether a particular source change 
qualifies as a modification, construction, or reconstruction for 
section 112(g) purposes will be determined according to the statutory 
provisions of section 112(g), using the proposed rule as guidance. As 
noted in the June 28, 1994 guidance, EPA intends to defer wherever 
possible to a state's judgement regarding applicability determinations. 
This deference must be subject to obvious limitations. For instance, a 
physical or operational change resulting in a net increase in HAP 
emissions above 10 tons per year could not be viewed as a de minimis 
increase under any interpretation of the Act. The EPA would expect 
Washoe to issue a preconstruction permit containing a case-by-case 
determination of MACT in such a case even if review under its own 
preconstruction review program would not be triggered.

C. Interim Approval and Implications

1. Title V Operating Permits Program
    The EPA is granting interim approval to the operating permits 
program submitted to EPA by the Nevada Division of Environmental 
Protection, on behalf of Washoe, on November 18, 1993. The District 
must make the following changes to receive full approval:
    (1) Revise insignificant activity provisions so that they comply 
with Sec. 70.5(c). Specifically, rule 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: (1) Description of any processes and products 
associated with alternate scenarios (Sec. 70.5(c)(2)); (2) description 
of compliance monitoring devices or activities (Sec. 70.5(c)(3)(v)); 
(3) when emissions trading provisions are requested by a source, 
proposed replicable procedures and permit terms 
(Sec. 70.4(b)(12)(iii)); and (4) a 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. These recommended revisions, 
however, are not required for full approval. 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)) [[Page 1743]] 
    (5) Revise 030.960(C)(8) to state that the certifications must be 
based on information and belief formed after reasonable inquiry. 
(Sec. 70.6(c)(1) and Sec. 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. 70.5(c)(8)(iii)(C) and 
Sec. 70.6(c)(3))
    (7) Part 70 prohibits sources from implementing significant permit 
modifications prior to final permit action unless the changes have 
undergone preconstruction review pursuant to section 112(g) or a 
program approved into the SIP pursuant to part C or D of title I, and 
the changes are not otherwise prohibited by the source's existing part 
70 permit. Washoe's regulations require sources to submit applications 
for significant permit modifications 6 months prior to implementing the 
change, yet final permit action may not occur until 9 months after 
receipt of a complete application. Hence, rule 030.950(E) must be 
revised to eliminate the 3 month time frame that sources are able to 
implement significant permit modifications without revised permits. 
(Sec. 70.5(a)(1)(ii))
2. Implications of Title V Interim Approval
    As a result of today's final interim approval of Washoe's part 70 
program, the requirement to submit a permit application to Washoe 
applies to all part 70 sources, as defined in the approved program, 
within Washoe's jurisdiction, except for any source of air pollution 
over which a federally recognized Indian Tribe has jurisdiction. See, 
e.g., 59 FR 55813, 55815-55818 (November 9, 1994).
    This interim approval, which may not be renewed, extends until 
February 5, 1997. During this interim approval period, Washoe is 
protected from sanctions, and EPA is not obligated to promulgate, 
administer and enforce a Federal operating permits program in Washoe 
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 Washoe fails to submit a complete corrective program for full 
approval by August 5, 1996. EPA will start an 18-month clock for 
mandatory sanctions. If Washoe 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 Washoe has corrected the deficiency by submitting a complete 
corrective program. Moreover, if the Administrator finds a lack of good 
faith on the part of Washoe, both sanctions under section 179(b) will 
apply after the expiration of the 18-month period until the 
Administrator determines that Washoe has come into compliance. In any 
case, if, six months after application of the first sanction, Washoe 
still has not submitted a corrective program that EPA has found 
complete, a second sanction will be required.
    If EPA disapproves Washoe'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 Washoe 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 Washoe, both sanctions under section 179(b) shall apply after the 
expiration of the 18-month period until the Administrator determines 
that Washoe has come into compliance. In all cases, if, six months 
after EPA applies the first sanction, Washoe 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 Washoe 
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 Washoe 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 Washoe County upon interim approval expiration.
3. District Preconstruction Permit Program Implementing Section 112(g)
    The EPA is approving 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. This approval is limited in duration and will expire 12 
months after EPA promulgates section 112(g) regulations.
4. Program for Delegation of Section 112 Standards as Promulgated
    The EPA is approving under section 112(l)(5) and 40 CFR section 
63.91 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 obtain the regulatory 
authority necessary to accept delegation of section 112 standards by 
incorporating section 112 standards into District regulations by 
reference to the Federal regulations. The details of this delegation 
mechanism will be set forth in a Memorandum of Agreement between Washoe 
and EPA. This program for delegations only applies to sources covered 
by the title V program.

III. Administrative Requirements

A. Docket

    Copies of Washoe's submittal and other information relied upon for 
the final interim approval, including the one public comment received 
and reviewed by EPA on the proposal, are contained in docket number NV-
WSH-94-1-OPS 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 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 
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 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.

    [[Page 1744]] Dated: December 16, 1994.
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. Appendix A to part 70 is amended by adding the entry for Nevada 
in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Nevada

    (a) (Reserved)
    (b) Washoe County District Health Department: submitted on November 
18, 1993; interim approval effective on March 6, 1995; interim approval 
expires February 5, 1997.
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[FR Doc. 95-253 Filed 1-4-95; 8:45 am]
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