[Federal Register Volume 60, Number 238 (Tuesday, December 12, 1995)]
[Rules and Regulations]
[Pages 63631-63634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30261]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5344-9]
Clean Air Act Final Interim Approval of the Operating Permits
Program; Nevada Division of Environmental Protection; Nevada
AGENCY: Environmental Protection Agency (``EPA'').
ACTION: Final Interim Approval.
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SUMMARY: The EPA is promulgating interim approval of the title V
operating permits program submitted by the Nevada Division of
Environmental Protection (``NDEP'' or ``State'') 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: January 11, 1996.
ADDRESSES: A copy of NDEP's submittal and other supporting information
used in developing the final approval are available for inspection
(docket number NV-DEP-95-1-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: 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 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 August 7, 1995, EPA proposed interim approval of the operating
permits program for NDEP (``NPRM''). See 60 FR 40140. In that Federal
Register document, EPA also proposed approval of NDEP's interim
mechanism for implementing section 112(g) and its program for
delegation of section 112 standards as promulgated as they apply to
title V and non-title V sources. Public comment was solicited on the
three proposed actions, and EPA is responding to those comments in this
document and in a separate ``Response to Comments'' document that is
available in the docket at the Regional office.
II. Final Action and Implications
A. Analysis of State Submission and Response to Public Comments
The August 7, 1995 Federal Register notice proposed interim
approval of NDEP's title V operating permits program as submitted on
February 8, 1995. EPA is aware that NDEP has revised its implementing
regulations since the February 8, 1995 submission; however, those
revisions have not been submitted to EPA for approval and are not part
of the program being approved in today's final action.
EPA received comments on the NPRM from two commenters: the National
Mining Association (``NMA'') and NDEP. With one exception, the program
deficiencies identified in the NPRM remain unchanged as a result of
public comment. Based on public comment and further analysis, the
deficiency identified in section II.B.1.(2) of the NPRM has been
removed; i.e., NDEP's definition of ``regulated air pollutant'' is
fully approvable. See section II.A.4. below for further discussion. The
commenters also provided a few program clarifications which are
discussed below. Furthermore, please note that an issue raised as a
deficiency in the context of ``insignificant activities'' and discussed
in section II.A.2.c. of the proposed notice has become a separate
interim approval issue as a result of public comment. See section
II.A.1. for more information. No adverse public comment was received on
the proposed approvals of NDEP's program for delegation of section 112
standards as promulgated or transition mechanism for implementing
section 112(g), and hence, those approvals have not been altered as a
result of public comment.
1. Applicability
In response to a program deficiency identified by EPA in section
II.B.1.(10) of the NPRM, NDEP commented that it does not plan to permit
any source that is subject to the New Source Performance Standard
(``NSPS'') for new residential wood heaters or the National Emissions
Standard for Hazardous Air Pollutants (``NESHAP'') for asbestos
demolition because the State has not accepted delegation for such
standards.
In order to have a fully approvable program, a state must have
authority to permit all major sources and to write permits that assure
compliance with all federal applicable requirements. If under State law
NDEP must receive delegation of a federal requirement before it can
write that requirement into a permit or assure compliance with that
requirement, then NDEP must seek and receive delegation in sufficient
time to issue the permit. It is possible for Nevada to obtain
delegation of an NSPS or NESHAP requirement solely for title V sources.
In the NPRM, EPA relied on the Nevada Attorney General's legal
opinion (dated November 15, 1993) that NDEP has authority to issue
permits to all
[[Page 63632]]
sources required to have permits pursuant to section 502(a) of the Act
and Sec. 70.3 of part 70 (p. 2 of legal opinion), and authority to
``require that all applicable requirements be incorporated into an
operating permit'' (p. 8 of legal opinion). In addition, NDEP has
committed to implement all applicable requirements, including those
that would necessitate State rule adoption prior to incorporation into
the permit. (See Program Submittal, Section II.A.2., pp. II-1 to II-2.)
EPA expects NDEP to issue permits to all major sources and to include
all applicable requirements in those permits. If a regulatory
impediment exists outside of the submitted program, then NDEP must
eliminate it in order to have a fully approvable program.
In response to EPA's discussion in the NPRM (section II.A.2.c.) on
insignificant activities, NDEP commented that two of the listed
insignificant activities, agricultural land use and equipment or
contrivances used for food processing, are ``unpermittable
activities.'' EPA regards this comment as ambiguous given that NAC
445B.293.1 (previously NAC 445.705.1) requires, and the Attorney
General's legal opinion confirms, that all major sources (with the two
exceptions noted above) must obtain operating permits. Furthermore, EPA
assumed that if information is provided in the application because it
is needed to ``establish the basis for the applicability of standards''
(section 445B.295.2(b), previously 445.7054.2(b)), then the units
subject to such standards (i.e., applicable requirements) would be
contained in the permit. EPA expects NDEP to implement its
insignificant activities provisions in a manner consistent with both
part 70 and the provisions of the NAC relied upon in the NPRM, that is:
(1) Emissions from insignificant activities must be considered in
applicability determinations; (2) Class I permit applications may not
omit any information needed to determine or impose any applicable
requirement; and (3) if an applicable requirement applies to a unit at
a major source, that unit must be permitted. In order to have a fully
approvable program, NDEP must remove all ambiguity regarding the
permitting of agricultural and food processing activities and clearly
require all major sources to obtain Class I permits. If a regulatory
impediment exists outside of the submitted program, then NDEP must
eliminate that impediment prior to full program approval.
Also, in the NPRM, EPA noted that NDEP's program contains
inconsistencies with regard to the applicability of nonmajor sources to
title V. (See 60 FR 40141-40142, section II.A.2.a. ``applicability.'')
EPA requested a letter from NDEP clarifying how it intends to carry out
the applicability requirements in its program.
In the comment letter received from NDEP on September 6, 1995, the
State informed EPA that it has already corrected the ambiguity
regarding whether or not nonmajor sources subject to a section 111 or
112 standard are subject to title V. NDEP revised the Nevada
Administrative Code on April 4, 1995 to clearly state that ``major,''
and not ``minor,'' new sources subject to sections 111 and 112 will be
permitted as Class I-B sources.
2. Insignificant Activities
One commenter asserted that EPA's position in the NPRM regarding
insignificant activities is inconsistent with the July 10, 1995 ``White
Paper,'' which gives states flexibility in designating insignificant
activities. EPA disagrees that the NPRM is inconsistent with the
``White Paper'' with regard to insignificant activities. EPA is not
questioning the State's authority to identify insignificant activities;
rather, EPA is rejecting the unbounded nature of some of the listed
activities.
The meaning of the term ``insignificant'' as used in section
70.5(c) is that information is unessential for determining whether and
how an applicable requirement applies at a source. If emissions at an
activity are extremely low, that activity is unlikely to be subject to
an applicable requirement. That is why EPA suggested that NDEP create
an across-the-board emissions threshold above which activities could
not qualify as insignificant. Without an across-the-board threshold or
unit-specific limits, activities on NDEP's list, such as ``agricultural
land use'' and ``equipment or contrivances used exclusively for the
processing of food'' could be construed as being ``insignificant'' even
if subject to an applicable requirement. Where there is a chance that
an activity is subject to an applicable requirement (e.g., food
processing activities may be subject to the yeast manufacturing
NESHAP), EPA needs additional criteria, such as an emissions threshold,
to ensure that the activity is insignificant for part 70 permitting
purposes.
The commenter further contended that NDEP's regulation already
prohibits activities subject to an applicable requirement from
qualifying as insignificant. Nevertheless, the commenter asked whether
the following language would resolve EPA's concerns: ``[N]o source
subject to an applicable requirement may qualify as an insignificant
activity.''
EPA disagrees that NDEP's regulation clearly prohibits activities
subject to an applicable requirement from qualifying as insignificant.
In fact, NDEP's list of insignificant activities contains activities,
such as air-conditioning equipment, that are almost certainly subject
to an applicable requirement. Unless NDEP removes from the list of
insignificant activities those activities that are likely to be subject
to a unit-specific applicable requirement, the language proposed by the
commenter might only cause confusion. However, the language proposed by
the commenter would help clarify that insignificant activities
provisions do not exempt sources from title V and do not relieve
sources from having to comply with any applicable requirements.
Another comment received on insignificant activities is that EPA's
recommended emissions thresholds are arbitrary and unnecessary. The
commenter pointed out that other state programs have allowed emission
thresholds that are higher than EPA's recommended limits for HAP
emissions.
As stated in the proposed notice, EPA will review and evaluate any
emissions thresholds proposed by NDEP. Emissions thresholds should
reflect state-specific circumstances. Part 70 specifically provides
that the permitting authority is responsible for providing the
``criteria used to determine insignificant activities or emission
levels.'' NDEP may use levels approved in other state programs as
guidance.
3. Reporting of Permit Deviations
Both commenters disagreed with EPA's statement that each permit
must define ``prompt'' for purposes of prompt reporting of deviations.
According to the commenters, ``prompt'' is already defined in NAC
445B.232.4 (previously 445.667.4) as reporting any excess emissions
within 24 hours. In addition, NAC 445B.326 (previously 445.7133)
defines prompt for emergencies.
The purpose of defining ``prompt'' in either the title V program or
the title V permit is to notify the source of its exact reporting
obligation. While NAC 445B.232.4 defines ``prompt'' in an acceptable
manner, it is not currently part of NDEP's title V program. However,
NAC 445B.326 was submitted as part of NDEP's title V program, and EPA
agrees that ``prompt'' has already been defined for emergencies covered
by that provision.
Given that permits must contain ``all applicable reporting
requirements'' and that the definition of ``applicable
[[Page 63633]]
requirement'' in NDEP's program includes State-only requirements, EPA
believes that sources are adequately notified of their reporting
obligation for the interim period. Therefore, during the interim
period, NDEP may rely on NAC 445B.232.4 to define ``prompt'' rather
than defining it in each individual permit. For full approval, however,
NDEP must either submit NAC 445B.232.4 for inclusion in its approved
program, or define ``prompt'' in each permit.
4. Regulated Air Pollutant
Both commenters disagreed with EPA's position that the definition
of ``regulated air pollutant'' in NAC 445B.153 (previously 445.5905) is
deficient. EPA identified NDEP's definition of ``regulated air
pollutant'' as a program deficiency because it appeared to be
inconsistent with the part 70 definition. Specifically, NDEP's
definition seemed to exclude pollutants that are subject to
requirements of the Act (such as title VI and sections 112(g), 112(j),
and 112(r)), but are not subject to promulgated standards. This
apparent inconsistency is not an issue, however, for Class I and Class
II pollutants since they are all currently subject to promulgated
requirements (57 FR 31242, July 14, 1992). It is also not an issue for
section 112 requirements since NDEP's definition of ``regulated air
pollutant'' can be interpreted broadly to include pollutants regulated
by sections 112(g), 112(j), and 112(r) of the Act.
5. Duty to Apply
One commenter asked EPA to clarify what application trigger is
missing from the State's title V program. In order to understand the
deficiency, one must look at the language in part 70 which states that
an initial title V application is due ``within 12 months after the
source becomes subject to the permit program'' (section 70.5(a)(1)). As
is the case in NDEP's regulation, a source may ``become subject'' upon
the effective date of the program or after commencing operation of a
new source. However, these two situations are not the only scenarios
that would make a source subject to title V for the first time. For
instance, a source may become subject to title V upon promulgation of a
MACT standard that does not exempt nonmajor sources to obtain title V
permits. Similarly, the Administrator could designate a category of
nonmajor sources to be subject to title V. Finally, facility
modifications may increase a source's potential to emit to above the
major source level, thus making a source newly subject to title V. For
these reasons, NDEP's regulation must be revised for full approval.
6. Permit Shield
NDEP disputed EPA's comment in the NPRM that the program's permit
shield provisions are deficient. Because a permit shield may insulate a
source from enforcement, it is essential for EPA and the public to know
when a permit shield is in the permit and exactly which conditions the
permit shield is covering. According to NDEP's regulation, permits may
be written to provide the benefits of a permit shield without expressly
stating that a permit shield exists. This approach is plainly
inconsistent with Sec. 70.6(f)(2) which states that: ``[a] part 70
permit that does not expressly state that a permit shield exists shall
be presumed not to provide such a shield.'' NDEP must make all the
changes identified in the proposed notice in order to have fully
approvable permit shield provisions.
7. Emissions Trading
NDEP commented that it does not intend to provide the emissions
trading opportunity specified in Sec. 70.6(a)(10) and that it intends
to remove the existing provisions for trading under a federally
enforceable emissions cap, which are now located in NAC 445B.316.1(g)
(previously NAC 445.7114.1(g)) and which satisfy the requirements of
Sec. 70.4(b)(12)(iii). Consequently, NDEP indicated that it will not
correct the regulatory deficiencies with regard to trading identified
in the proposed approval notice under section II.B.1.(9). NDEP noted,
however, that it will allow trading as an alternative operating
scenario.
The federal part 70 regulation does not give states discretion
about whether to allow the emissions trading provisions of
Secs. 70.6(a)(10) and 70.4(b)(12)(iii). First, Sec. 70.6(a)(10) says
that the permitting authority cannot deny trading opportunities where
such opportunities are provided by the underlying applicable
requirement. For instance, if NDEP permits a source subject to the
Hazardous Organic NESHAP (HON), which allows for trading without a
case-by-case approval, and the source requests to take advantage of the
trading provisions of the HON, then NDEP must establish trading terms
and conditions in the source's permit. Second, Sec. 70.4(b)(12)(iii)
states that the permitting authority ``shall'' allow for trading under
a federally enforceable emissions cap. In the proposed approval, EPA
relied on NAC 445.7114.1(g) to satisfy the requirements for trading
under a federally enforceable emissions cap. If NDEP removes such
trading provisions from its program, the program will become deficient
with regard to operational flexibility. Moreover, EPA is not convinced
that NDEP's alternative operating scenario provisions provide an
adequate framework for these types of trading opportunities.
B. Final Action
1. Title V Operating Permits Program
The EPA is promulgating interim approval of NDEP's title V
operating permits program as submitted on February 8, 1995. In order to
receive full approval, NDEP must correct the ten program deficiencies
listed in the proposed interim approval document under section
II.B.1.(1, 3-11) 1 as well as one additional deficiency regarding
the unpermittable status of agricultural and food processing activities
which was identified as a result of public comment and is discussed
above in section II.A.1.
\1\ Please see the proposed interim approval document (60 FR
40143-40144, August 7, 1995) for a list of changes that must be made
in order for NDEP's program to be fully approvable.
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The scope of NDEP's part 70 program approved in this notice applies
to all sources under NDEP's jurisdiction. It does not apply to 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
January 12, 1998. The specific conditions of the interim approval,
NDEP's obligation to submit a complete corrective program, and the
potential use of sanctions were set out in the proposed notice (60 FR
40140, August 7, 1995, section I.B.) and will not be repeated in this
document.
2. State Preconstruction Permit Program Implementing Section 112(g)
EPA is approving the use of NDEP's integrated preconstruction/
operating permit program as a mechanism to implement section 112(g)
during the transition period between promulgation of EPA's section
112(g) rule and adoption by NDEP of rules specifically designed to
implement section 112(g).
[[Page 63634]]
EPA is limiting the duration of this approval to 18 months following
promulgation by EPA of the section 112(g) rule.
3. Program for Delegation of Section 112 Standards as Promulgated
EPA is promulgating approval under section 112(l)(5) and 40 CFR
section 63.91 of NDEP's program for receiving delegation of section 112
standards that are unchanged from federal standards as promulgated. EPA
is approving NDEP's delegation mechanism for part 70 and non-part 70
sources.
III. Administrative Requirements
A. Docket
Copies of NDEP's submittal and other information relied upon for
the final interim approval, including public comment letters received
and reviewed by EPA on the proposal, are contained in docket number NV-
DEP-95-1-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
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 this
action does not impose any new requirements, it does 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, and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. sections 7401-7671q.
Dated: December 1, 1995.
Felicia Marcus,
Regional Administrator.
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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 paragraph (a) to the
entry for Nevada:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
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The following state program was submitted by the Nevada Division of
Environmental Protection:
(a) Nevada Division of Environmental Protection: submitted on
February 8, 1995; interim approval effective on January 11, 1996;
interim approval expires January 12, 1998.
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[FR Doc. 95-30261 Filed 12-11-95; 8:45 am]
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