[Federal Register Volume 66, Number 196 (Wednesday, October 10, 2001)]
[Proposed Rules]
[Pages 51620-51628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25410]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NV 044-OPP; FRL-7077-2]
Clean Air Act Proposed Full Approval of Title V Operating Permit
Programs; Clark County Department of Air Quality Management, Washoe
County District Health Department, and Nevada Division of Environmental
Protection, Nevada
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to fully approve the operating permit programs
submitted by the Clark County Department of Air Quality Management \1\
(Clark County), Washoe County District Health Department (Washoe
County), and the Nevada Division of Environmental Protection (NDEP).
The three operating permit programs were submitted in response to the
directive in the 1990 Clean Air Act (CAA) Amendments that permitting
authorities develop, and submit to EPA, programs for issuing operating
permits to all major stationary sources and to certain other sources
within the permitting authorities' jurisdiction. EPA granted final
interim approval to Clark County's program on July 13, 1995 (60 FR
36070), to Washoe County's program on January 5, 1995 (60 FR 1741), and
to NDEP's program on December 12, 1995 (60 FR 63631). All three
permitting agencies revised their programs to satisfy the conditions of
interim approval and this action proposes approval of those revisions.
NDEP and Clark County made other revisions to their programs since
interim approval was granted. EPA is proposing to approve some of the
additional revisions made by NDEP and is taking no action on Clark
County's additional changes.
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\1\ On August 7, 2001, the governor of Nevada officially shifted
responsibility for air quality management in Clark County from the
County's Health District to a newly created Department of Air
Quality Management, overseen by the Clark County Air Quality
Management Board. Since the change is effectively a shift in the
organizational location of the County's air quality management
program and all rules, regulations, and policies of the Health
District are being carried over to the new Department, EPA is today
proposing to grant full approval to Clark County's operating permits
program, which will be administered by the County's Department of
Air Quality Management.
DATES: Comments on the program revisions discussed in this proposed
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action must be received in writing by November 9, 2001.
ADDRESSES: Written comments on this proposed action should be addressed
to Gerardo Rios, Permits Office, Air Division (AIR-3), EPA Region IX,
75 Hawthorne Street, San Francisco, California, 94105. You can inspect
copies of the program submittals, and other supporting documentation
relevant to this action, during normal business hours at Air Division,
EPA Region IX, 75 Hawthorne Street, San Francisco, California, 94105.
You may also see copies of the submitted title V programs at the
appropriate permitting agency location below:
Clark County Department of Air Quality Management, 651 Shadow Lane, Las
Vegas, Nevada 89106;
Washoe County District Health Department, 401 Ryland Street, Suite 331,
Reno, Nevada 89520; and
Nevada Division of Environmental Protection, 333 W. Nye Lane, Room 138,
Carson City, Nevada 89706.
[[Page 51621]]
FOR FURTHER INFORMATION CONTACT: David Albright, EPA Region IX, at
(415) 744-1627 or [email protected].
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:
What is the operating permit program?
What is being addressed in this document?
Are there other issues with the program?
What are the program changes that EPA proposes to approve?
What is involved in this proposed action?
I. What Is the Operating Permit Program?
The CAA Amendments of 1990 required all state and local permitting
authorities to develop operating permit programs that met certain
federal criteria. In implementing the operating permit programs, the
permitting authorities require certain sources of air pollution to
obtain permits that contain all applicable requirements under the CAA.
The focus of the operating permit program is to improve enforcement by
issuing each source a permit that consolidates all of the applicable
CAA requirements into a federally enforceable document. By
consolidating all of the applicable requirements for a facility, the
source, the public, and the permitting authorities can more easily
determine what CAA requirements apply and how compliance with those
requirements is determined.
Sources required to obtain an operating permit under this program
include ``major'' sources of air pollution and certain other sources
specified in the CAA or in EPA's implementing regulations. For example,
all sources regulated under the acid rain program, regardless of size,
must obtain permits. Examples of major sources include those that have
the potential to emit 100 tons per year or more of volatile organic
compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides (
NOX), or particulate matter (PM10); those that
emit 10 tons per year of any single hazardous air pollutant
(specifically listed under the CAA); or those that emit 25 tons per
year or more of a combination of hazardous air pollutants (HAPs). In
areas that are not meeting the National Ambient Air Quality Standards
for ozone, carbon monoxide, or particulate matter, major sources are
defined by the gravity of the nonattainment classification. For
example, in ozone nonattainment areas classified as ``serious,'' major
sources include those with the potential of emitting 50 tons per year
or more of volatile organic compounds or nitrogen oxides.
II. What Is Being Addressed in This Document?
Where an operating permit program substantially, but not fully, met
the criteria outlined in the implementing regulations codified at 40
Code of Federal Regulations (CFR) part 70, EPA granted interim approval
contingent on the state revising its program to correct the
deficiencies. Because the Clark County, Washoe County, and Nevada
Division of Environmental Protection programs substantially, but not
fully, met the requirements of part 70, EPA granted interim approval to
each program in three separate rulemakings, published on July 13, 1995
(60 FR 36070), January 5, 1995 (60 FR 1741), and December 12, 1995 (60
FR 63631), respectively. Each interim approval notice described the
conditions that had to be met in order for the programs to receive full
approval. Since that time, each of the permitting agencies has
submitted to EPA one revision to its interimly approved operating
permit program. Clark County submitted its revision on June 1, 2001;
Washoe County submitted its revision on May 8, 2001; and NDEP submitted
its program revision on May 30, 2001. This document describes changes
that have been made to the Clark County, Washoe County, and NDEP
operating permit programs since EPA granted interim approval. The
changes that EPA is proposing to approve include those that were made
by each permitting authority to address interim approval deficiencies
identified by EPA. In addition, EPA is proposing to approve several
additional program changes made by NDEP. Although NDEP's program
combines the requirements for operating permits and construction
permits (``integrated program''), EPA's proposed approval of changes to
the Nevada Administrative Code (NAC) addresses only those elements that
pertain to NDEP's operating permit program. The proposed approval is
not being made under EPA's title I authority, and hence, is not
amending Nevada's new source review program.
III. Are There Other Issues With the Program?
On May 22, 2000, EPA promulgated a rulemaking that extended the
interim approval period of 86 operating permits programs until December
1, 2001. (65 FR 32035) The action was subsequently challenged by the
Sierra Club and the New York Public Interest Research Group (NYPIRG).
In settling the litigation, EPA agreed to publish a document in the
Federal Register that would alert the public that they may identify and
bring to EPA's attention alleged programmatic and/or implementation
deficiencies in title V programs and that EPA would respond to their
allegations within specified time periods if the comments were made
within 90 days of publication of the Federal Register document.
Two members of the public commented on what they believe to be
deficiencies with respect to the Clark County title V program. EPA
takes no action on those comments in today's action; however, as stated
in the Federal Register document published on December 11, 2000, (65 FR
77376) EPA will respond by December 1, 2001 to timely public comments
on programs that have obtained interim approval. We will publish a
notice of deficiency (NOD) if we determine that a deficiency exists, or
we will notify the commenter in writing to explain our reasons for not
making a finding of deficiency. A NOD will not necessarily be limited
to deficiencies identified by citizens and may include any deficiencies
that we have identified through our program oversight.
IV. What Are the Program Changes That EPA Proposes To Approve?
EPA made full approval of the Clark County, Washoe County, and NDEP
title V operating permit programs contingent upon satisfaction of
certain conditions. Described below are the conditions of approval for
each program and a summary of how each of the three permitting agencies
revised their part 70 programs and rules to meet the conditions
required for full program approval. In addition, Clark County and NDEP
made additional changes to their programs that were not required as a
condition for full program approval. EPA is not taking any action on
the additional changes made by Clark County, but will evaluate these
additional changes and take appropriate action at a later date. As
described below, EPA is proposing to approve most of the additional
changes made by NDEP in today's proposed action.
A. Changes Required for Clark County Health District To Receive Full
Program Approval
As explained in EPA's July 13, 1995 rulemaking, Clark County was
required to make the following changes:
(1) Enforcement Commitments: In the 1995 interim approval, EPA
required the District to submit documentation and commitments for
implementing its enforcement and compliance tracking program. Part 70
requires that the District submit enforcement policies, including
agreements with the EPA, and
[[Page 51622]]
a description of the District's enforcement program, compliance
tracking activities, and inspection strategies. (40 CFR 70.4(b)(4) and
(5)) In addition, failure to act on violations of permits or other
program requirements, failure to seek adequate penalties and fines and
collect all assessed penalties and fines, and failure to inspect and
monitor activities subject to regulation are grounds for withdrawing
program approval. (40 CFR 70.10(c)(iii)) Therefore, the District was
required to submit the descriptions and/or commitments required under
Secs. 70.4(b)(4) and (5) to qualify for full approval and ensure that
the commitments meet the criteria in Sec. 70.10(c)(iii).
Clark County fulfilled this requirement in its title V program
revision by submitting a title V Compliance Monitoring Strategic Plan.
This strategic plan outlines and explains the District's standard
procedures and commitments for targeting and conducting inspections,
evaluating source compliance, addressing various types of violations,
and reporting compliance and enforcement data to EPA. EPA has
determined that the District's Plan contains the enforcement policies,
descriptions of the District's enforcement program, compliance tracking
activities, and inspection strategies that are required by 40 CFR
70.4(b)(4) and (5). Furthermore, the District's commitments, as
outlined in their Compliance Monitoring Strategic Plan, demonstrate
that they are enforcing the part 70 program consistent with the
requirements of part 70, and that the criteria in Sec. 70.10(c)(iii)
(criteria for a finding that a permitting authority is failing to
adequately enforce their part 70 program) are not present given the
District's implementation of their submitted Plan.
(2) Operational Flexibility Gatekeeper: EPA determined in the 1995
interim approval that the District's operational flexibility gatekeeper
(APCR section 19.4.1.8) was not explicitly as broad as the
Sec. 70.4(b)(12) gatekeeper for section 502(b)(10) changes. Part 70
prohibits operational flexibility for ``modifications under any
provision of title I of the Act.'' In contrast, the District prohibited
these changes for any ``New Source Review modifications under any
provision of title I of the Act,'' which does not expressly include
modifications under sections 111 and 112. EPA expected that most
section 111 or 112 modifications will be subject to the District's New
Source Review program; however, in certain cases the section 111 or 112
modification definition will be more inclusive than the District's New
Source Review rule. Therefore, revising the rule to explicitly prohibit
section 502(b)(10) changes for all title I modifications was a
requirement for full approval.
Clark County met this condition by revising section 19.4.1.8 to
clarify that a source may make 502(b)(10) changes in operations without
a permit revision only if the changes are not modifications under any
provision of Title I of the Act.
(3) Confidential Business Information: The District Counsel's
opinion did not document that the District's definition of confidential
business information (``CBI''), which is not available to the public,
is as narrow as EPA's. Section 19.3.1.3 states that ``emissions'' may
not be considered confidential. EPA's regulation states that
``emissions data'' may not be considered confidential. (40 CFR 2.301)
The District was required to adopt EPA's narrower definition of
confidential information. Alternatively, the District Counsel was asked
to issue a statement that the District's program does not contain more
restrictions on public access to information than the federal
regulations.
Clark County met this condition by revising section 19.3.1.3(a) to
clarify that the Health District may not consider ``emissions data''
(rather than just ``emissions'') as confidential information which is
not available to the public.
(4) Insignificant Activities: In its initial title V program
submittal, the District submitted criteria defining the units that are
not subject to the part 70 permitting program. For criteria pollutants,
the rule exemption threshold was based on potential emissions of either
one or two tons per year. EPA believed these criteria pollutant
thresholds are acceptable. The rule also exempted units with potential
emissions of 200 pounds per year of hazardous air pollutants (HAPs).
EPA believed that this threshold is acceptable, except for very
hazardous substances for which EPA has promulgated or proposed a lower
title I modification threshold. To receive full approval, the
District's exemption needed to be no less stringent than these
thresholds.
Clark County fulfilled this requirement by amending section 19 to
clarify which emissions units can qualify as insignificant activities
and to eliminate the statement that these activities are exempt from
the permit. In lieu of using an emissions threshold as the means of
identifying insignificant activities, the District adopted an EPA-
approved list of insignificant activities as attachment A to section
19. Attachment A notes that the listed activities may be presumptively
omitted from part 70 permit applications but does not suggest that
these activities are exempt from the requirements of the permit. The
adoption of Attachment A (List of Insignificant Activities or Emission
Units) resolves EPA's concern about the stringency of emission
thresholds contained in the District's previous version of section 19.
(5) Applicable Requirements and National Ambient Air Quality
Standards (NAAQS): The District was required to add NAAQS, visibility,
and increment requirements for temporary sources to the definition of
applicable requirements (40 CFR 70.3). Sources that temporarily operate
at multiple locations, such as non-metallic minerals processors or
asphalt batch plants, may qualify for temporary source permits. The
temporary source permits issued to these sources was required to comply
with applicable requirements, as defined in part 70, at each location.
To address this condition, Clark County made an appropriate
revision to section 0, their ``definitions'' regulation. Clark County
revised the definition of ``applicable requirement'' in section 0 to
include, ``any national ambient air quality standard or increment or
visibility requirement under part C of title 1 of the Act, but only as
it would apply to temporary sources permitted pursuant to section
504(e) (Temporary Sources) of the Act.''
(6) Early reductions permit deadline: The District was required to
add a deadline of nine months or less for early reductions permits
issued under section 112(i)(5) of the Act (40 CFR 70.4(b)(11)).
Clark County fulfilled this condition by revising section
19.5.1.4(a) as follows: ``(a) Any complete permit application
containing an early reduction demonstration under section 112(i)(5) of
the Act shall be acted on within nine months of receipt of the complete
application.''
B. Changes Required for Washoe County District Health Department To
Receive Full Program Approval
As explained in EPA's January 5, 1995 rulemaking, Washoe County was
required to make the following changes:
(1) Insignificant activities: EPA required Washoe County to revise
its insignificant activity provisions so that they comply with 40 CFR
70.5(c). Specifically, rule 030.905(B)(3) was required to 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
[[Page 51623]]
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.
Washoe County met this condition with two rule revisions and a
modification to its permit application form. First, they revised Rule
030.905(B)(3) to state that ``No source which is itself subject to an
applicable requirement may qualify as an insignificant activity.'' In
addition, Washoe modified Rule 030.020(C)(4) to require that each
permit application contain ``* * * description of all insignificant
activities for Part 70 permits, and all emission points in sufficient
detail to determine applicability and fees.'' Finally, Washoe amended
their title V permit application form to require the applicant to list
all emissions associated with insignificant activities.
(2) Applications: EPA required Washoe County to revise 030.020 to
state that each application must contain the following information: (a)
Description of any processes and products associated with alternate
scenarios (40 CFR 70.5(c)(2)); (b) description of compliance monitoring
devices or activities (Sec. 70.5(c)(3)(v)); (c) when emissions trading
provisions are requested by a source, proposed replicable procedures
and permit terms (Sec. 70.4(b)(12)(iii)); and (d) 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)). 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 (40 CFR 70.5(d)).
Washoe County met this requirement by revising Rule 030.020(C)(12)
to include the required provisions from Secs. 70.5(c), 70.4(b), and
70.5(d) identified in the interim approval notice by EPA. In addition,
Washoe County's permit application form (which was submitted as an
addendum to their revised title V program submittal) contains clear
certification requirements that are consistent with part 70
regulations.
(3) Supplementary information: As a condition of the 1995 interim
approval, EPA required Washoe County to add a provision to its rules
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.
(40 CFR 70.5(b))
Washoe County fulfilled this condition by revising their Rule
030.910 to include the following requirement: ``Any part 70 permittee
or permit applicant must submit any previously unknown, supplementary
or corrected information upon becoming aware of any failure to submit
relevant facts or the submittal of incorrect information. The permittee
shall also notify the Control Officer of any change in operations or
change in applicable requirements.''
(4) Public notice: Washoe County was required to revise 030.930 to
provide public notice ``by other means if necessary to assure adequate
notice to the affected public.'' (40 CFR 70.7(h)(1))
Washoe County met this condition by amending Rule 030.930. The
amended Rule states that the District shall give public notice and
``such notice shall be made in a newspaper of general circulation
within Washoe County and by mailing notice to persons on a list which
shall be developed for such part 70 notifications, or by other means if
necessary to assure adequate notice to the affected public.'' Although
Washoe's rule language differs slightly from that contained in part 70
(which says ``and by other means * * *''), EPA interprets Rule 030.930
to require the District to provide notice in every case in a newspaper
of general circulation and to persons on the mailing list, as well as
by other means if necessary, which is consistent with the requirements
of part 70.
(5) Certifications: EPA required Washoe County to revise
030.960(C)(8) to state that certifications by a responsible official
must be based on information and belief formed after reasonable
inquiry. (40 CFR parts 70.6(c)(1) and 70.5(d)).
Washoe County fulfilled this condition by revising Rule
030.960(C)(8) to add the following language: ``* * * and that all
certifications are based on information and belief formed after a
reasonable inquiry.''
(6) Compliance schedules: Washoe County was required to 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 (40 CFR 70.5(c)(8)(iii)(C) and 70.6(c)(3)).
Washoe County met this condition by modifying Rule 030.970(B) to
add item (6) as follows: ``(6) Any schedule for compliance must be at
least as stringent as that contained in any judicial consent decree or
administrative order.''
(7) Significant permit modifications: 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. At the time of Washoe's
interim approval, its regulations required sources to submit
applications for significant permit modifications 6 months prior to
implementing the change, yet final permit action did not need to occur
until 9 months after receipt of a complete application. Hence, rule
030.950(E) needed to be revised to eliminate the 3 month time frame
that sources were able to implement significant permit modifications
without revised permits (40 CFR 70.5(a)(1)(ii)).
Washoe County met this condition by revising Rule 030.950(E) to add
the following language: ``No changes covered under a significant permit
modification may be implemented by the source without an Authority to
Construct (ATC) permit if such authorization is required under
regulation 030.002. The source must submit a complete application at
least nine (9) months prior to the time it intends to implement the
change.''
C. Changes Required for Nevada Division of Environmental Protection To
Receive Full Program Approval
As explained in EPA's December 12, 1995 rulemaking, NDEP was
required to make the following changes:
(1) Compliance certifications: NDEP was required to revise Nevada
Administrative Code (NAC) section 445.7054.2(h)(2) to clearly require
that compliance certifications submitted as part of the permit
applications include the compliance status of all applicable
requirements and the methods used for determining compliance with all
applicable requirements. As NDEP's rule was written in 1995, a
compliance certification was part of the source's compliance plan, and
the elements of the compliance plan were required to address all
applicable requirements (NAC 445.7054.2(h)). However, the compliance
certification provision, within the compliance plan framework, could
have been read, inappropriately, to narrow the scope of certifications
to those applicable requirements that become effective during the term
of the permit (40 CFR 70.5(c)(9)).
NDEP met this condition by amending NAC 445B.295.2 (formerly
445.7054.2) \2\
[[Page 51624]]
to add the specific compliance certification requirements of 40 CFR
70.5(c)(9).
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\2\ The State of Nevada re-numbered their Administrative Code in
section 445 during the 1995 legislative session. Since EPA's final
interim approval identified changes that needed to be made in the
previously numbered NAC provisions, in this notice we identify both
the current and former NAC regulatory citations. Also, see Tables 1
and 2 below for a complete cross reference of old and new NAC
provisions that are part of NDEP's operating permit program.
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(2) Agricultural and food processing activities: In order to have a
fully approvable program, NDEP was required to 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 was required to eliminate that impediment prior to full program
approval.
NDEP fulfilled this condition of full approval by revising NAC
445B.288 (formerly 445.705) to clarify that agricultural and food
processing activities are not exempt from permitting unless they are
not subject to title V permitting themselves and they are located at a
source that is not required to get a title V permit.
(3) Application deadline: NDEP's rule did not contain a title V
permit application trigger for existing sources that become subject to
the program after the program's effective date. NAC 445.7052.1 needed
to be revised to include an application requirement for such sources
(40 CFR 70.5(a)(1)(i)).
NDEP met this condition by amending NAC 445B.289 (formerly NAC
445.7042) to add 445B.289.2, which states, ``If an existing stationary
source becomes subject to the requirements of a Class I stationary
source, the owner or operator of the existing stationary source must
submit a Class I-A application to the director within 12 months after
the date on which the stationary source becomes subject to the
requirements for Class I sources.''
(4) Permit shield: NDEP's permit shield provisions in NAC
445.7114.1(j) were not fully consistent with part 70 and needed to be
revised as follows: (a) clearly indicate that NAC 445.7114.1(j)
provides for permit shields; (b) require the permit to expressly state
that a permit shield exists or the permit is presumed not to provide
such a shield (40 CFR 70.6(f)(2)); and (c) add a statement that the
permit shield may not be extended to minor permit modifications (40 CFR
70.7(e)(2)(vi)).
NDEP fulfilled this condition by revising NAC 445B.316 (formerly
445.7114) to add new language at 445B.316.2 clearly indicating that a
Class I operating permit may provide a permit shield, that a shield
exists only if the permit expressly states that a permit shield exists,
and noting that permit shields do not apply to minor permit
modifications.
(5) Emissions trading: NDEP was required to add emissions trading
provisions consistent with 40 CFR 70.6(a)(10), which requires that
trading must be allowed where an applicable requirement provides for
trading increases and decreases without a case-by-case approval.
NDEP fulfilled this requirement by amending NAC 445B.316.1(g)
(formerly 445.7114.1(g)) to allow for the trading of emissions
increases and decreases to the extent that the applicable requirements
provide for such trading without a case-by-case approval.
(6) Compliance schedule: A schedule of compliance contained in a
title V permit must be consistent with that required in the permit
application (40 CFR 70.6(c)(3)). While NDEP application provisions
required all the necessary elements of a schedule of compliance, the
permit requirements in NAC 445.7114.1(h) needed to be revised either by
referencing the application requirements in NAC 445.7054.2(h)(3) or by
adding that the schedule of compliance will contain a schedule of
remedial measures, including an enforceable sequence of actions with
milestones, leading to compliance and that the schedule shall resemble
and be at least as stringent as that contained in any judicial consent
decree or administrative order. In addition, the schedule of compliance
was required to address requirements that become applicable during the
term of the permit pursuant to 40 CFR 70.5(c)(8)(iii)(B).
NDEP met this condition by revising their regulations at NAC
445B.316.1 (formerly 445.7114.1) to reference the application
requirements in 445B.295.2(h) (formerly 445.7054.2(h)) NDEP also
amended NAC 445B.295.2(h) (formerly 445.7054.2(h)) by adding the
following language at 445B.295.2(h)(3)(II): ``(II) For the applicable
requirements that may become effective during the term of the permit, a
statement that the stationary source will comply with those
requirements on a timely basis* * *''
(7) Progress reports: At the time of interim approval in 1995, the
progress report requirement in NAC 445.7114.1(h)(1) was vague and
needed to be revised to more clearly meet the requirements of 40 CFR
70.6(c)(4). EPA suggested adding the following language to NAC
445.7114.1(h)(1): ``Requirements for [s]emiannual progress reports with
dates for achieving milestones and dates when such milestones were
achieved.''
NDEP met this condition by modifying NAC 445B.295 (formerly
445.7054) to include a schedule for the submission of certified
progress reports and added additional language to 445B.295.2(h)(4) to
require all the provisions of 40 CFR 70.6(c)(4).
(8) Portable sources: NDEP indicated in its program description
that Class I permits may be issued to portable sources (program
submittal, section II, p. 8). In order to satisfy the part 70
requirements for temporary sources, NDEP needed to add a requirement
that the owner or operator of a Class I ``portable source'' (as defined
in NAC 445.5695) notify NDEP at least 10 days in advance of each change
in location. (40 CFR 70.6(e)(2))
NDEP fulfilled this requirement by revising NAC 445B.194 (formerly
445.5695) to replace the term ``portable source'' with the term
``temporary source.'' Also, NDEP revised NAC 445B.331.2 (formerly
445.7145.2) to require that Class I sources make a request in writing
to the director for a change in location of an emission unit, and to
further require that the request be made ``at least 10 days in advance
of each change in location.''
(9) Emissions trading under a federally enforceable cap: For full
approval, NDEP was required to revise NAC 445.7114.1(g) to ensure that
any trade under a federally enforceable emissions cap is preceded by a
written notification to NDEP at least 7 days in advance of the trade.
Part 70 requires that the notification specify when the change will
occur and include a description of the change in emissions that will
result and how the increases and decreases will comply with the terms
and conditions of the permit (40 CFR 70.4(b)(12) and
70.4(b)(12)(iii)(A)).
NDEP met this condition by revising NAC 445B.316 (formerly
445.7114) to require that requests for emissions trading under a
federally enforceable emissions cap be made pursuant to NAC 445B.320.
NAC 445B.320 requires requests to be made by written notification to
the NDEP Director and the EPA Administrator at least 7 days before
making the change and requires that the notifications meet other
specific criteria, pursuant to the requirements at 40 CFR
70.4(b)(12)(iii)(A).
(10) Clarification of permit exemption: NDEP was asked to remove
the phrase ``Except as otherwise provided in subsection 2'' from NAC
445.705.1, as it inaccurately suggested that major sources subject to
either the New Source Performance Standard for new residential wood
heaters or the
[[Page 51625]]
National Emissions Standard for Hazardous Air Pollutants for asbestos
demolition are not required to obtain title V operating permits.
NDEP fulfilled this condition by revising NAC 445B.288.1 (formerly
445.705.1) to remove the phrase ``except as otherwise provided in
subsection 2.'' NAC 445B.288.1 now clearly states that the title V
exemption for sources subject to part 61, subparts AAA and M, only
applies where sources would otherwise be subject to permitting solely
because they are regulated by subpart AAA or M.
(11) Insignificant activities: NDEP was required to provide
additional defining criteria to ensure that NDEP's insignificant
activities are truly insignificant and are not likely to be subject to
an applicable requirement. Alternatively, NDEP could have restricted
their list of insignificant activities to those that are not likely to
be subject to an applicable requirement or that emit less than State-
established emission levels. NDEP needed to demonstrate that these
emission levels would be insignificant compared to the level of
emissions from and type of units that are required to be permitted or
subject to applicable requirements.
NDEP fulfilled this requirement through several revisions to NAC
445B.288 (formerly 445.705). First, NDEP added additional defining
criteria to their list of insignificant activities to ensure that
activities on the list are truly insignificant. In addition, 445B.288
now notes that any activities on the list do not qualify for treatment
as an insignificant activity if they are otherwise subject to a
specific applicable requirement. Finally, NDEP has clarified in their
regulations at 445B.288 that insignificant activities at part 70
sources are not exempt from the part 70 permit by removing the prior
language from NAC 445B.288 (formerly 445.705) which stated that
insignificant activities do not require operating permits.
D. Other Program Changes Made by the Nevada Division of Environmental
Protection
NDEP made other changes to its operating permits program since EPA
granted interim approval. These changes were not required to correct
deficiencies identified by EPA in our interim approval of December 12,
1995. EPA has reviewed the additional changes and proposes to approve
most of the changes. Table 1 identifies the additional rule sections
EPA is proposing to approve. One of the changes listed in Table 1 is a
revision of NAC section 445B.138, the definition of potential to emit
(``PTE''). The revised definition states that limitations on the
capacity of a source to emit air pollutants ``may be treated as part of
its design for the purposes of determining its potential to emit if the
limitation is enforceable by the director.'' The definition had
previously required such limitations to also be enforceable by the EPA
Administrator, pursuant to the definition of PTE in 40 CFR 70.2.
Although NDEP's definition is different from the current definition
in 40 CFR 70.2, litigation has affected EPA's consideration of this
issue. In Clean Air Implementation Project vs. EPA, No. 96-1224 (D.C.
Cir. June 28, 1996), the court remanded and vacated the requirement for
federal enforceability of potential to emit limits under part 70. Even
though Part 70 has not been revised it should be read to mean,
``federally enforceable or legally and practicably enforceable by a
state or local air pollution control agency.'' \3\
---------------------------------------------------------------------------
\3\ See also, National Mining Association (NMA) v. EPA, 59 F.3d
1351 (D.C. Cir. July 21, 1995) (Title III) and Chemical
Manufacturing Ass'n (CMA) v. EPA, No. 89-1514 (D.C. Cir. Sept. 15,
1995)(Title I).
---------------------------------------------------------------------------
EPA proposes to approve this revision because the State's rule is
consistent with the current meaning of potential to emit as described
above in the court's interpretation. EPA has issued several guidance
memoranda that discuss how the court rulings affect the definition of
potential to emit under CAA section 112, New Source Review (NSR) and
Prevention of Significant Deterioration (PSD) programs, and title V.\4\
In particular, the memoranda reiterate the Agency's earlier
requirements for practical enforceability for purposes of effectively
limiting a source's potential to emit.\5\ For example, practical
enforceability for a source-specific permit means that the permit's
provisions must, at a minimum: (1) Be technically accurate and identify
which portions of the source are subject to the limitation; (2) specify
the time period for the limitation (hourly, daily, monthly, and annual
limits such as rolling annual limits); (3) be independently enforceable
and describe the method to determine compliance including appropriate
monitoring, recordkeeping and reporting; (4) be permanent; and (5)
include a legal obligation to comply with the limit.
---------------------------------------------------------------------------
\4\ See, e.g., January 22, 1996, Memorandum entitled, ``Release
of Interim Policy on Federal Enforceability of Limitations on
Potential to Emit'' from John Seitz, Director, OAQPS and Robert I.
Van Heuvelen, Director, Office of Regulatory Enforcement to EPA
Regional Offices; January 31, 1996 paper to the Members of the
Subcomittee on Permit, New Source Review and Toxics Integration from
Steve Herman, OECA, and Mary Nichols, Assistant Administrator of Air
and Radiation; and the August 27, 1996 Memorandum entitled,
``Extension of January 25, 1995 Potential to Emit Transition
Policy'' from John Seitz, Director, OAQPS and Robert Van Heuvelen,
Director, Office of Regulatory Enforcement.
\5\ See, e.g., June 13, 1989 memorandum entitled, ``Guidance on
Limiting Potential to Emit in new Source Permitting, from Terrell F.
Hunt, Associate Enforcement Counsel, OECA, and John Seitz, Director,
OAQPS, to EPA Regional Offices. This guidance is still the most
comprehensive statement from EPA on this subject. Further guidance
was provided on January 25, 1995 in a memorandum entitled ``Options
for Limiting the Potential to Emit (PTE) of a Stationary Source
Under Section 112 and Title V of the Clean Air Act (Act),'' from
John Seitz, Director, OAQPS and Robert I. Van Heuvelen, Director,
ORE to Regional Air Directors. Also please refer to the EPA Region 7
database at http://www.epa.gov/region7/programs/artd/air/policy/policy.htm for more information.
---------------------------------------------------------------------------
EPA will rely on NDEP implementing this revised PTE definition in a
manner that is consistent with the court's decisions and EPA policies.
In addition, EPA wants to be certain that absent federal and citizen's
enforceability, NDEP's enforcement program still provides sufficient
incentive for sources to comply with permit limits. Prior to our final
action on this rulemaking, we will discuss with the State our
expectations for ensuring that the permit limits they impose are
enforceable as a practical matter and that its enforcement program will
still provide sufficient compliance incentive. In the future, if NDEP
does not implement the PTE definition consistent with our guidance,
and/or has not established a sufficient compliance incentive absent
federal and citizen's enforceability, EPA could find that the State has
failed to administer or enforce its program and may take action as
authorized by 40 CFR 70.10(b).
Some changes made by the State are not approvable and EPA is not
acting on those sections. Table 2 below lists the NAC sections of
NDEP's program on which EPA is not taking action. Please refer to the
TSD for additional information on the basis for our decision to either
approve or not act on other changes made by the State.
[[Page 51626]]
Table 1.--Other Rule Sections that were Changed Since Interim Approval that EPA is Proposing to Approve
----------------------------------------------------------------------------------------------------------------
Interim approved NAC
provision New NAC provision Section title Date of adoption
----------------------------------------------------------------------------------------------------------------
445.430 445B.001 Definitions................. 5/10/01
445.432 445B.002 ``Act'' defined............. N/A
445.433 445B.004 ``Administrator'' defined... N/A
445.434 445B.005 ``Affected facility'' 10/30/95
defined.
445.4346 445B.007 ``Affected state'' defined.. N/A
445.438 445B.013 ``Allowable emissions'' 10/30/95
defined.
445.4395 445B.016 ``Alternative operating 10/30/95
scenarios'' defined.
445.4415 445B.019 ``Applicable requirement'' 3/5/98
defined.
445.4425 445B.021 ``Area source'' defined..... N/A
445.4615 445B.034 ``Class I-A application'' N/A
defined.
445.4625 445B.035 ``Class I-B application'' N/A
defined.
445.4635 445B.036 ``Class I source'' defined.. N/A
445.4645 445B.037 ``Class II source'' defined. 10/30/95
445.477 445B.043 ``Confidential information'' N/A
defined.
445.4915 445B.055 ``Effective date of the N/A
program'' defined.
445.4955 445B.056 ``Emergency'' defined....... N/A
445.500 445B.059 ``Emission unit'' defined... 10/30/95
445.5008 445B.061 ``EPA'' defined............. N/A
445.504 445B.063 ``Excess emissions'' defined N/A
445.506 445B.066 ``Existing stationary 10/30/95
source'' defined.
445.5095 445B.069 ``Federally enforceable'' N/A
defined.
445.5105 445B.070 ``Federally enforceable N/A
emissions cap'' defined.
445.521 445B.077 ``Fugitive emissions'' 10/30/95
defined.
445.5275 445B.082 ``General permit'' defined.. 10/30/95
445.5305 445B.084 ``Hazardous air pollutant'' N/A
defined.
445.5431 445B.096 ``Maximum achievable control 10/30/95
technology'' defined.
445.548 445B.103 ``Monitoring device'' 10/30/95
defined.
445.550 445B.108 ``New stationary source'' 10/30/95
defined.
445.559 445B.123 ``Operating permit'' defined N/A
445.571 445B.138 ``Potential to emit'' 5/3/96
defined.
445.5855 445B.147 ``Program'' defined......... N/A
445.5905 445B.153 ``Regulated air pollutant'' 10/30/95
defined.
445.5915 445B.154 ``Renewal of an operating N/A
permit'' defined.
445.5925 445B.156 ``Responsible official'' N/A
defined.
445.5935 445B.157 ``Revision of an operating N/A
permit'' defined.
445.613 445B.170 ``Single source'' defined 10/30/95
[REPEALED].
445.630 445B.190 ``Stop order'' defined...... N/A
445.5695 445B.194 ``Temporary source'' defined 5/10/01
445.649 445B.200 ``Violation'' defined....... N/A
445.6605 445B.221 Adoption by reference of 9/27/99
provisions of federal law
and regulations.
445.662 445B.224 Public and confidential 3/5/98
information.
445.664 445B.227 Prohibited conduct: 10/30/95
Operation of source without
required equipment; removal
or modification of required
equipment; modification of
required procedure.
445.696 445B.275 Violations: Acts 10/30/95
constituting; notice.
445.697 445B.277 Stop orders................. 10/30/95
445.699 445B.281 Violations: Classification; N/A
administrative fines.
445.704 445B.287 Operating permits and 5/10/01
permits to construct:
General requirements;
restrictions on transfer.
445.705 445B.288 Operating permits: 5/10/01
Exemptions from
requirements.
445.7042 445B.289 Class I-A application for 5/10/01
Class I operating permit:
Filing requirement.
445.7054 445B.295 Contents of application for 5/10/01
operating permit: General
requirements.
445.7056 445B.296 Contents of application for 10/30/95
operating permit: Requests
for inclusion of additional
provisions.
445.7058 445B.297 Application for operating 10/30/95
permit: Submission of
application and corrected
or additional information.
445.706 445B.298 Application for operating 3/5/98
permit: Official date of
submittal.
445.707 445B.300 Operating permits: Action on 9/27/99
applications; expiration.
445.7073 445B.303 Operating permits: Initial 3/5/98
periods for action on
applications.
445.7075 445B.305 Operating permits: 10/30/95
Imposition of more
stringent standards for
emissions.
445.7077 445B.306 Class I operating permits: 3/5/98
Prerequisites to issuance,
revision, or renewal.
445.7112 445B.315 Contents of operating 3/5/98
permits: Conditions.
445.7114 445B.316 Contents of Class I 5/10/01
operating permits.
445.7122 445B.319 Operating permits: 9/27/99
Administrative amendment.
445.7124 445B.320 Operating permits: Making 3/5/98
certain changes without
revision of permit.
445.7126 445B.321 Class I operating permits: 4/17/98
Minor revision.
445.7128 445B.322 Class I operating permits: 3/5/98
Significant revision.
445.713 445B.323 Operating permits: Renewal.. 10/30/95
445.7131 445B.325 Operating permits: 3/5/98
Termination, reopening and
revision, revision, or
revocation and reissuance.
445.7133 445B.326 Operating permits: Assertion N/A
of emergency as affirmative
defense to action for
noncompliance.
[[Page 51627]]
445.7135 445B.327 Fees: Operating permits; 9/27/99
revision of operating
permit; annual fee for
emissions and maintenance
of stationary source.
445.7145 445B.331 Fees: Replacement of lost or 5/10/01
damaged operating permit;
request for change of
location of emission unit.
445.7155 445B.335 General permits............. 10/30/95
445.717 445B.339 Identification of substances 5/3/96
445.7191 445B.343 Development of maximum 3/26/96
achievable control
technology; establishment
of lower emission rates or
different criteria.
445.7193 445B.345 Maximum achievable control 3/26/96
technology: Approval,
degree of reduction in
emission, methods.
445.7195 445B.347 Prerequisites to issuance or 3/26/96
renewal of operating permit.
----------------------------------------------------------------------------------------------------------------
Note: Rule sections marked as N/A in the ``Date of Adoption'' column were not changed since EPA granted NDEP
interim approval, except for changes related to the Legislative renumbering of the NAC in 1995.
Table 2.--Other Rule Sections that were Changed Since Interim Approval that EPA is not Proposing to Approve
----------------------------------------------------------------------------------------------------------------
Interim approved NAC
provision New NAC provision Section title Date of adoption
----------------------------------------------------------------------------------------------------------------
445.5405 445B.094 ``Major source'' defined.... 3/5/98
445.628 445B.187 ``Stationary source'' 5/10/01
defined.
445.7044 445B.290 Class I-B application for 5/10/01
Class I operating permit:
Filing requirement.
445.7052 445B.294 Class I-A application for 10/30/95
Class I operating permit:
Period for filing; effect
of application and previous
permits.
----------------------------------------------------------------------------------------------------------------
V. What Is Involved in This Proposed Action?
Clark County, Washoe County, and NDEP have fulfilled the conditions
of their respective interim approvals, and EPA proposes full approval
of their title V operating permit programs.
Clark County and NDEP also made additional changes to their
operating permits programs. These changes were not required by EPA to
address conditions of the interim approvals granted to them on July 13,
1995, and December 12, 1995, respectively. EPA is proposing to approve
most, but not all, of the changes made by NDEP and is taking no action
today on additional changes made by Clark County. EPA will evaluate the
additional program changes made by Clark County and will take
appropriate action at a later date.
Request for Public Comment
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the Washoe County, Clark County, and NDEP
submittals and other supporting documentation used in developing our
proposed full approval are contained in docket files maintained at the
EPA Region 9 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 proposed full approval. The primary purposes of
the docket are: (1) To allow interested parties a means to identify and
locate documents so that they can effectively participate in the
approval process, and (2) to serve as the record in case of judicial
review. EPA will consider any comments received in writing by November
9, 2001.
Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this proposed action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities because it merely approves state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. This rule does not contain any
unfunded mandates and does not significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4) because it proposes to approve pre-existing
requirements under state law and does not impose any additional
enforceable duties beyond that required by state law. This rule also
does not have tribal implications because it will not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000). This rule also does not have Federalism
implications because it will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes
to approve existing requirements under state law, and does not alter
the relationship or the distribution of power and responsibilities
between the State and the Federal government established in the Clean
Air Act. This proposed rule also is not subject to Executive Order
13045, ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997) or
[[Page 51628]]
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001), because it is not a significantly regulatory action
under Executive Order 12866. This action will not impose any collection
of information subject to the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., other than those previously approved and
assigned OMB control number 2060-0243. For additional information
concerning these requirements, see 40 CFR part 70. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
In reviewing State operating permit programs submitted pursuant to
Title V of the Clean Air Act, EPA will approve State programs provided
that they meet the requirements of the Clean Air Act and EPA's
regulations codified at 40 CFR part 70. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a State
operating permit program for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews an operating
permit program , to use VCS in place of a State program that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
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.
Dated: September 28, 2001.
Sally Seymour,
Acting Regional Administrator, Region IX.
[FR Doc. 01-25410 Filed 10-9-01; 8:45 am]
BILLING CODE 6560-50-P