[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