[Federal Register Volume 64, Number 90 (Tuesday, May 11, 1999)]
[Rules and Regulations]
[Pages 25210-25213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11708]


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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

[[Page 25211]]

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.

[[Page 25212]]

    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

[[Page 25213]]

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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