[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Proposed Rules]
[Pages 7046-7049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02134]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2020-0239; FRL-10597-01-R9]


Air Plan Actions; Nevada; Clark County--Department of Environment 
and Sustainability; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing an 
approval, a partial approval and partial disapproval, and a limited 
approval and limited disapproval of certain revisions to the Clark 
County portion of the Nevada State Implementation Plan (SIP). These 
revisions primarily concern the Clark County Department of Environment 
and Sustainability's (``DES'' or ``Department'') general definitions 
rule and New Source Review (NSR) permitting program for new and 
modified sources of air pollution under the Clean Air Act (CAA or 
``Act''). We are taking comments on this proposal and plan to follow 
with a final action.

DATES: Comments must be received by March 6, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2020-0239 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be removed or edited from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets. If you need assistance in 
a language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, Air-3-
1, 75 Hawthorne St., San Francisco, CA 94105, (415) 972-3534, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to the EPA.

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rules?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA Recommendations To Further Improve the Rule
    E. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules \1\ addressed by this proposal, including 
the dates they were adopted by the Clark County Board of County 
Commissioners, and the dates they were submitted by the Nevada Division 
of Environmental Protection (NDEP) to the EPA.
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    \1\ These rules are referred to by the Clark County DES as 
``Sections.''

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                                                                   Cover letter
                Section                       Section title           Adopted          date       Submittal date
----------------------------------------------------------------------------------------------------------------
0.....................................  Definitions.............         7/20/21         1/31/22         1/31/22
10....................................  Compliance Schedules            12/18/18          6/6/19         6/10/19
                                         (Request to rescind).
12.0..................................  Applicability and                1/21/20         3/13/20         3/16/20
                                         General Requirements.
12.1..................................  Permit Requirements For         12/18/18         4/12/19         4/12/19
                                         Minor Sources.
12.11.................................  General Permits for             12/18/18         4/12/19         4/12/19
                                         Minor Stationary
                                         Sources.
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[[Page 7047]]

    Six months after the submittal of each rule, the EPA determined 
that the SIP submittals were deemed complete by the operation of law to 
meet the completeness criteria, in 40 CFR part 51, appendix V, which 
must be met before formal EPA review.

B. Are there other versions of these rules?

    There are previous versions of some of these rules approved in the 
SIP. The current SIP-approved rules are listed in Table 2.

                                           Table 2--SIP-Approved Rules
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                                                                     SIP approval
                  Rule                           Rule title              date         Federal Register citation
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0......................................  Definitions..............        10/17/14  79 FR 62350.
1......................................  Definition: Subsection            4/14/81  46 FR 21758.
                                          1.1, Affected Facility.
1......................................  Definition: Subsection            4/14/81  46 FR 21758.
                                          1.26, Dust.
1......................................  Definition: Subsection            4/14/81  46 FR 21758.
                                          1.29, Existing Gasoline
                                          Station.
1......................................  Definition: Subsection            4/14/81  46 FR 21758.
                                          1.36, Fumes.
1......................................  Definition: Subsection            4/14/81  46 FR 21758.
                                          1.51, Mist.
1......................................  Definition: Subsection            6/21/82  47 FR 26620.
                                          1.57, New Gasoline
                                          Station.
1......................................  Definition: Subsection            4/14/81  46 FR 21758.
                                          1.95, Uncombined Water.
10.....................................  Compliance Schedules.....         8/27/81  46 FR 43141.
12.0...................................  Applicability and General        10/17/14  79 FR 62350.
                                          Requirements.
12.1...................................  Permit Requirements For          10/17/14  79 FR 62350.
                                          Minor Sources.
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C. What is the purpose of the submitted rules?

    The submitted rules are intended to update the Nevada SIP with 
recent revisions to the Department's Air Quality Regulations.\2\ The 
revisions to Section 0, ``Definitions,'' would add, revise or remove 
certain definitions, and move six definitions currently found in SIP-
approved Section 1, ``Definition,'' into Section 0. Section 10, 
``Compliance Schedules,'' was repealed locally because it had become 
obsolete. The SIP submittal requests that the EPA remove Section 10 
from the SIP.
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    \2\ We are not taking action on earlier revised versions of 
Section 0 that were adopted on December 18, 2018, December 17, 2019, 
and January 21, 2020, which have been superseded by the more recent 
version of Section 0 that was adopted on July 20, 2021, and 
submitted to the EPA on January 31, 2022. However, we have 
considered relevant information relating to the revisions made in 
those older versions of Section 0 in evaluating the July 20, 2021, 
version of Section 0. Similarly, we are not taking action on an 
earlier revised version of Section 12.0 that was adopted on December 
18, 2018, which has been superseded by the more recent version of 
Section 12.0 that was adopted on January 21, 2020, and submitted to 
the EPA on March 16, 2020. However, we have considered relevant 
information relating to the revisions made in that older version of 
the rule in evaluating the January 21, 2020, version of Section 
12.0.
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    The revisions to Section 12.0, ``Applicability and General 
Requirements,'' remove a portion of the rule entitled ``Transition 
Procedures,'' that had been included for the sole purpose of aiding in 
the transition from the 2004 version of Section 12 to the new Sections 
12.1, 12.2, 12.3 and 12.4 that replaced it in 2011. This transition was 
completed in 2015. Other minor editorial changes were also made, such 
as capitalizing defined terms and replacing the term ``Department of 
Air Quality'' with the term ``Department''.
    The revisions to Section 12.1, ``Permit Requirements for Minor 
Sources,'' include numerous updates and minor revisions including edits 
to provide clarity to rule provisions, as well as the addition of 
several new or clarified permit exemptions for insignificant 
activities.
    Section 12.11 is a new SIP submittal of a rule to regulate the 
issuance of General Permits for minor stationary sources.
    Additional information concerning these submittals can be found in 
our Technical Support Document (TSD) for this action, which can be 
found in the docket for this rulemaking.

II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rules?

    The EPA reviewed Clark County's revisions for compliance with the 
applicable requirements of section 110(a)(2) and associated regulations 
at 40 CFR 51.160 through 51.164. We also reviewed the rules for 
consistency with other CAA general requirements for SIP submittals, 
including requirements at section 110(a)(2)(A) regarding rule 
enforceability, and requirements at sections 110(l) and 193 for SIP 
revisions.
    Section 110(a)(2)(C) of the CAA requires each SIP to include a 
program to regulate the modification and construction of any stationary 
source within the areas covered by the SIP as necessary to assure 
attainment and maintenance of the National Ambient Air Quality 
Standards (NAAQS). The EPA's regulations at 40 CFR 51.160 through 
51.164 provide specific programmatic requirements to implement this 
statutory mandate. These requirements, commonly referred to as the 
``minor NSR'' or ``general NSR'' program, apply generally to both major 
and non-major stationary sources and modifications and in both 
attainment and nonattainment areas, in contrast to the specific 
statutory and regulatory requirements for permitting programs under 
parts C and D of title I of the CAA that apply to major sources in 
attainment and nonattainment areas, respectively.
    Section 110(a)(2)(A) of the CAA requires that regulations submitted 
to the EPA for SIP approval be clear and legally enforceable. Section 
110(l) of the CAA prohibits the EPA from approving any SIP revisions 
that would interfere with any applicable requirement concerning 
attainment and reasonable further progress (RFP) or any other 
applicable requirement of the CAA. Section 193 of the CAA prohibits the 
modification of a SIP-approved control requirement in effect before 
November 15, 1990, in a nonattainment area, unless the modification 
ensures equivalent or greater emission reductions of the relevant 
pollutant(s). With respect to procedural requirements, CAA sections 
110(a)(2) and 110(l) require that revisions to a SIP be adopted by the 
state after reasonable notice and public hearing.

B. Do the rules meet the evaluation criteria?

    Based on our review of the public process documentation included in 
Clark County's submittals, which include Affidavits of Publications and 
Records of Publications, we find that

[[Page 7048]]

Clark County has provided sufficient evidence of public notice, 
opportunity for comment and a public hearing prior to adoption and 
submittal of these rules to the EPA, consistent with CAA sections 
110(a)(2) and 110(l). With respect to the substantive requirements 
found in CAA sections 110(a)(2)(A) and (C), and 40 CFR 51.160 through 
51.164, we evaluated Clark County's submittal in accordance with the 
applicable CAA and regulatory requirements, primarily focusing on those 
that apply to new source review permit programs, and find that the 
revisions to the SIP as reflected in our action on the revised rules, 
as well as new Section 12.11, and the removal of Section 10 from the 
SIP, satisfy these requirements, except for a few relatively minor 
deficiencies, discussed in Section II.C. of this proposal.
    With respect to the substantive requirements found in CAA sections 
110(l) and 193, we find that our approval of this SIP submittal would 
not interfere with any applicable requirement concerning attainment and 
RFP or any other applicable requirement of the CAA. In addition, we 
find that the revisions to the SIP as reflected in our action on the 
submitted rules listed in Table 1 of this proposal will not relax any 
pre-November 15, 1990 control requirement in the SIP. Accordingly, we 
have concluded that our action is consistent with the requirements of 
CAA sections 110(l) and 193.
    Our TSD contains a more detailed discussion of our analysis.

C. What are the rule deficiencies?

    For Section 0, we find that the removal of the definition of 
``Clearing and Grubbing'' is not approvable as the term is still used 
in the Section 94 Handbook that is part of the SIP.
    For Section 12.1, we identified the following four deficiencies. 
First and second, the provisions in Sections 12.1.2(c)(7) and (8), 
which exempt ancillary parts washers and degreasers that use only 
certified clean air solvents from permitting requirements, are 
deficient because the term ``certified clean air solvents'' is not 
defined in any Section 12 series rule, which makes the provision 
unenforceable. Third, the provision in Section 12.1.2(c)(10) allowing 
the Control Officer to deem any other emission unit or activity to be 
insignificant on a case-by-case basis with no specific criteria for 
making this determination is deficient because it contains 
impermissible Director's discretion. Fourth, the provision in Section 
12.1.4.1(z) contains impermissible Control Officer discretion to decide 
whether certain conditions should be added to portable minor source 
permits.
    For Section 12.11, the rule contains an unenforceable cross-
reference relating to certain emissions inventory report requirements, 
and does not satisfy the requirement in 40 CFR 51.160(f) that the 
screening model used pursuant to Section 12.11.1(f) be based on the 
applicable models, databases, and other requirements specified in 40 
CFR part 51, appendix W.
    Our TSD contains a more detailed discussion of these deficiencies.

D. EPA Recommendations To Further Improve the Rule

    The TSD also includes recommendations for additional clarifying 
revisions to consider for the rules evaluated in this SIP submittal.

E. Proposed Action and Public Comment

    Pursuant to section 110(k)(3) of the Act, for Section 0, we are 
proposing a partial approval and partial disapproval. We are proposing 
approval of the rule with the exception of its removal of the 
definition of ``Clearing and Grubbing.'' This definition is separable 
from the other definitions and revisions in Section 0 and therefore the 
disapproval issue related to this definition is suitable for a partial 
disapproval.
    If this action is finalized as proposed, the July 20, 2021, version 
of Section 0 would be approved into the SIP, and a separate entry for 
the definition of ``Clearing and Grubbing'' from the current SIP-
approved version of Section 0, approved into the SIP on October 17, 
2014, and referenced in Table 2 of this proposal, would be retained in 
the SIP. Therefore, this partial disapproval action would require no 
further action from the Department to remedy the identified deficiency. 
More generally, the incorporation of the submitted version of Section 0 
into the SIP would replace the older version of Section 0 that is 
currently in the SIP, as referenced in Table 2, except for the 
definition of ``Clearing and Grubbing''; that older version of Section 
0 would be removed from the SIP (except for the specified definition). 
In addition, our approval of certain definitions in the submitted 
version of Section 0 would replace in the SIP the older versions of 
those same definitions that are currently included in SIP-approved 
Section 1, as referenced in Table 2 of this proposal; these older 
versions of the definitions would be removed from the SIP.
    Pursuant to CAA section 110(k)(3), we are proposing to approve the 
request to rescind Section 10 from the SIP, as we have determined that 
its removal is consistent with the relevant CAA requirements. We are 
also proposing to fully approve Section 12.0, adopted on January 21, 
2020, based on our determination that the rule revisions satisfy the 
applicable statutory and regulatory provisions governing regulation of 
stationary sources under CAA section 110(a)(2)(C), including the 
permitting requirements in 40 CFR 51.160 through 51.164. If our action 
is finalized as proposed, the submitted version of Section 12.0 would 
replace the older version of Section 12.0 that is currently in the SIP, 
as referenced in Table 2 of this proposal, which would be removed from 
the SIP.
    Pursuant to CAA sections 110(k)(3) and 301(a) of the Act, we are 
proposing limited approval and limited disapproval of Sections 12.1 and 
12.11, both adopted on December 18, 2018. We are proposing to approve 
these rules based on our determination that the rules mostly satisfy 
the applicable statutory and regulatory provisions governing regulation 
of stationary sources under CAA section 110(a)(2)(A) and (C), including 
the permitting requirements for stationary sources in 40 CFR 51.160 
through 51.164. If our action is finalized as proposed, our limited 
approval of Section 12.1 would replace the older version of Section 
12.1 that is currently in the SIP, as referenced in Table 2, which 
would be removed from the SIP. Our limited approval of Section 12.11 
would approve it into the SIP in its entirety. We are also proposing a 
limited disapproval of these same rules because they contain certain 
deficiencies as discussed above and in Sections 5.5, 5.6, and 6 of the 
TSD. The intended effect of this proposed limited approval and limited 
disapproval action is to update the applicable SIP with current and 
clarified, and, in some regards, strengthened, Department permitting 
rules, while triggering the obligation to remedy the identified 
deficiencies.
    In support of our proposed action, we have also concluded that our 
approval and limited approval of the submitted rules would comply with 
sections 110(l) and 193 of the Act, as explained above. If we finalize 
this action as proposed, our action will be codified through revisions 
to 40 CFR 52.1470 (Identification of plan).
    If we finalize the limited disapproval of Sections 12.1 and 12.11 
as proposed, CAA section 110(c) would require the EPA to promulgate a 
Federal Implementation Plan (FIP) within 24 months unless we approve a 
subsequent SIP revision that corrects the deficiencies identified in 
the final limited disapproval. A final limited

[[Page 7049]]

disapproval of Sections 12.1 and 12.11 will not start any CAA section 
179 sanctions clocks as both rules address only minor source program 
requirements.\3\
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    \3\ Our partial disapproval of Section 0 does not trigger any 
FIP obligation, as the identified deficiency is remedied by the fact 
that the provision necessary to address the deficiency is already 
included in the SIP and will not be removed as part of this action. 
For the same reason, this partial disapproval also would not 
potentially trigger any offset or highway sanctions pursuant to CAA 
section 179.
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III. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the following Clark County DES rules: Sections 0, 12.0, 12.1 
and 12.11, as described in Table 1 of this proposal concerning 
definitions and New Source Review permit program requirements. The EPA 
has made, and will continue to make, these materials available through 
https://www.regulations.gov and at the EPA Region IX Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this proposal for more information).

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. 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.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP is not approved to apply on any 
Indian reservation land or in any other area where the EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction, and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    The state did not evaluate environmental justice considerations as 
part of its SIP. There is no information in the record inconsistent 
with the stated goals of Executive Order 12898 of achieving 
environmental justice for people of color, low-income populations, and 
indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: January 26, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-02134 Filed 2-1-23; 8:45 am]
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