[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36070-36072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17123]



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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

* * * * *
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.
* * * * *
[FR Doc. 95-17123 Filed 7-12-95; 8:45 am]
BILLING CODE 6560-50-P