[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
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Cover letter
Section Section title Adopted date Submittal date
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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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