[Federal Register Volume 77, Number 202 (Thursday, October 18, 2012)]
[Rules and Regulations]
[Pages 64039-64050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25545]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0566; FRL-9740-3]
Limited Approval and Disapproval of Air Quality Implementation
Plans; Nevada; Clark County; Stationary Source Permits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing a limited approval and limited disapproval
of revisions to the Clark County portion of the applicable state
implementation plan (SIP) for the State of Nevada. The submitted
revisions include new and amended rules governing the issuance of
permits for stationary sources, including review and permitting of
major sources and major modifications under parts C and D of title I of
the Clean Air Act (CAA). The effect of this limited approval and
limited disapproval action is to update the applicable SIP with current
Clark County permitting rules and to set the stage for remedying
certain deficiencies in these rules. This limited disapproval action
triggers an obligation on EPA to promulgate a Federal Implementation
Plan unless the State of Nevada corrects the deficiencies, and EPA
approves the related plan revisions, within two years of the final
action, and for certain deficiencies the limited disapproval also
triggers sanctions under section 179 of the CAA unless the State of
Nevada submits (on behalf of Clark County) and we approve SIP revisions
that correct the deficiencies within 18 months of final action.
DATES: Effective Date: This rule is effective on November 19, 2012.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0566 for
this action. Generally, documents in the docket for this action
available electronically at www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed at www.regulations.gov, some
information may be publicly available only at the hard copy location
(e.g., copyrighted material), and some may not be publicly available at
either location (e.g., CBI). To inspect the hard copy materials, please
schedule an appointment during normal business hours with the contact
listed in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, 75
Hawthorne Street (AIR-3), San Francisco, CA 94105, phone number (415)
972-3534, fax number (415) 947-3579, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA.
Table of Contents
I. Summary of Proposed Action
II. Public Comment on Proposed Action
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On July 24, 2012 (77 FR 43206), EPA proposed a limited approval and
limited disapproval of revisions to the Clark County portion of the
Nevada State Implementation Plan (SIP). The submittals included new and
amended regulations governing the issuance of permits for stationary
sources under the jurisdiction of the Clark County Department of Air
Quality (Clark or DAQ), including review and permitting
[[Page 64040]]
of major sources and major modifications under parts C and D of title I
of the CAA. Collectively, the submitted regulations (referred to as
``Sections'') comprise DAQ's current program for preconstruction review
and permitting of new or modified stationary sources under DAQ
jurisdiction in Clark County, including related definitions. These SIP
submittals, referred to herein as the ``NSR SIP submittal'' or
``submitted NSR rules,'' represent a comprehensive revision to Clark
County's preconstruction review and permitting program. Specifically,
EPA proposed a limited approval and limited disapproval of the new and
amended Clark County regulations listed in Table 1.
Table 1--Submitted NSR Rules
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Section No. Section title Adopted Submitted
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0...................................... Definitions............................ 3/6/12 5/22/12
12.0................................... Applicability, General Requirements and 11/3/09 2/11/10
Transition Procedures.
12.1................................... Permit Requirements for Minor Sources.. 11/3/09 2/11/10
12.2................................... Permit Requirements for Major Sources 3/6/12 5/22/12
in Attainment Areas (Prevention of
Significant Deterioration).
12.3................................... Permit Requirements for Major Sources 5/18/10 9/01/10
in Nonattainment Areas.
12.4................................... Authority to Construct Application and 5/18/10 9/01/10
Permit Requirements for Part 70
Sources.
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In our proposed rule (77 FR 43206, at 43208), we identified the
existing Clark County SIP rules governing NSR for stationary sources as
listed in Table 2.
Table 2--Existing SIP Rules Governing NSR for Stationary Sources Under
DAQ Jurisdiction
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Fed. Reg. citation
Section No. Section title and EPA approval
date
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0........................ Definitions............. 69 FR 54006, 9/7/
04.
1........................ Definitions (33 terms 46 FR 21758, 4/14/
retained in SIP in 69 81 and 47 FR
FR 54006, 9/7/04). 26620, 6/21/82.
11....................... Ambient Air Quality 69 FR 54006, 9/7/
Standards. 04.
12....................... Preconstruction Review 69 FR 54006, 9/7/
for New or Modified 04.
Stationary Sources.
16....................... Operating Permits....... 47 FR 26386, 6/18/
82.
58....................... Emission Reduction 69 FR 54006, 9/7/
Credits. 04.
59....................... Emission Offsets........ 69 FR 54006, 9/7/
04.
NAC 445B.22083........... Construction, major 69 FR 54006, 9/7/
modification or 04.
relocation of plants to
generate electricity
using steam produced by
burning of fossil
fuels..
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As a result of today's final action, all of these rules except for
Section 11, NAC section 445B.22083, and portions of Section 1, are
replaced in, or otherwise deleted from, the Nevada SIP by the submitted
set of rules listed in Table 1. With respect to Section 1, of the 33
terms contained in the Nevada SIP, the following six terms are replaced
by revised definitions contained in the submitted NSR rules: (1) ``Air
contaminant'' (subsection 1.3); (2) ``minor source'' (subsection 1.50);
(3) ``shutdown'' (subsection 1.78); (4) ``significant'' (unnumbered);
(5) ``special mobile equipment'' (subsection 1.85); and (6) ``start
up'' (subsection 1.89).\1\
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\1\ Although our proposed rule indicated that all of the Section
1 definitions in the SIP would be replaced by the NSR SIP submission
(see 77 FR 43206, 43208), EPA has found that only these six
definitions in SIP-approved Section 1 were in fact part of the
existing SIP rules governing NSR for stationary sources under DAQ
jurisdiction. Therefore, in this final rule, we are clarifying that
only those Section 1 definitions that pertain to NSR for stationary
sources under DAQ jurisdiction and that are in fact superseded,
under state law, by revised Clark County definitions in the
submitted NSR rules, are being replaced in the Nevada SIP.
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The most significant deficiencies that we identified in the
submitted NSR rules, as discussed in detail in the TSD, are generally
as follows: (1) The absence of minor NSR provisions that ensure
protection of the 2006 PM2.5 NAAQS and 2008 Lead (Pb) NAAQS;
(2) minor NSR applicability provisions that do not cover stationary
sources of PM2.5; (3) deficiencies in the definitions of
certain terms used in PSD and Nonattainment NSR (NNSR) applicability
determinations; (4) definition of ``regulated NSR pollutant'' that does
not adequately address PSD and NNSR requirements for regulation of
condensable particulate matter; (5) deficiencies in the criteria for
assessing the quality (or ``integrity'') of emission reduction credits
used to satisfy NNSR offset requirements; and (6) the absence of minor
NSR or NNSR provisions to ensure that the air quality impacts of
stationary sources are not underestimated due to stack heights that
exceed good engineering practice or unacceptable air dispersion
modeling techniques. We identified these as the ``most significant''
deficiencies because these are the most likely to affect pollutant
emissions within Clark County, compared to other deficiencies that we
do not expect would significantly affect emissions levels (e.g.,
administrative requirements for permit issuance).
We proposed to approve SIP revisions that exclude certain
insignificant/de minimis activities from minor source permitting
requirements in the Clark County portion of the Nevada SIP. Under the
Clark County rules that we proposed to approve, some of these
insignificant/de minimis activities must continue to comply with many
of the requirements that would apply to sources needing to obtain
preconstruction permits. We received no comments on our proposed
approvals and are finalizing those approvals as consistent with 40 CFR
51.160(e).
II. Public Comment on Proposed Action
EPA's proposed action provided a 30-day public comment period.
During this period, we received two comment letters, one from the
Nevada Division of
[[Page 64041]]
Environmental Protection (NDEP), dated September 7, 2012, and one from
the Clark County Department of Air Quality (Clark or DAQ), dated
September 6, 2012. We summarize and provide responses to these comments
below.
Comment 1: Clark County disagreed with EPA's statement that the
applicability provisions in Section 12.1 are deficient with respect to
regulation of PM2.5 precursor emissions and stated that
Section 12.1 addresses each of the pollutants identified by EPA as
PM2.5 precursors (NOX, SO2, and VOCs).
In addition, Clark County asserted that PM2.5 emissions are
a subset of PM10 emissions, which Section 12.1 also
addresses. Clark County stated that ``[a]lthough defining precursors to
PM2.5 more explicitly might clarify the rule, the county
believes the rule currently provides sufficient authority to regulate
sources of these pollutants * * * .''
EPA Response: We disagree. Section 110(a)(2)(C) of the CAA
requires, among other things, that each state have a permit program to
provide for regulation of the construction and modification of minor
stationary sources within the areas covered by the plan as necessary to
assure that the NAAQS are achieved. Under EPA's implementing
regulations in 40 CFR 51.160-51.164, these permit programs must contain
enforceable procedures that enable the permitting authority to
determine whether the construction or modification of a stationary
source will result in (1) a violation of applicable portions of the
control strategy; or (2) interference with attainment or maintenance of
a NAAQS in the State in which the proposed source (or modification) is
located or in a neighboring State, and procedures for preventing any
such construction or modification. For purposes of implementing the
1997 PM2.5 NAAQS, as explained in our TSD, States were
required by EPA's 2008 New Source Review implementing regulations for
the 1997 PM2.5 NAAQS (``PM2.5 NSR Implementation
Rule'') to revise their minor source programs to include direct and
condensable PM2.5 emissions and PM2.5 precursor
emissions in the same manner as included for purposes of
PM2.5 major NSR. See TSD at 16 (citing 73 FR 28321 at 28344,
May 16, 2008).
Clark County's minor NSR program in Section 12.1 generally defines
``minor source'' as a stationary source that is not a major source and
that has a potential to emit equal to or greater than specified levels
for the following seven pollutants: PM10, CO, VOC,
NOX, SO2, Lead (Pb), and H2S. See Section 12.1,
subsection 12.1.1 (a) and (c) (definitions). Similarly, for purposes of
regulating modifications at minor sources, Section 12.1 establishes
``significant'' emission levels for these same seven pollutants and for
Total Reduced Sulfur. Id. at subsection (g). These provisions are not
adequate for purposes of implementing the PM2.5 NAAQS for
three reasons.
First, the provisions do not explicitly regulate sources of direct
PM2.5 emissions. Second, the provisions do not address the
condensable fraction of PM2.5 or PM10, which is
required to be accounted for in permitting actions on or after January
1, 2011. 73 FR 28321 at 28334 (May 16, 2008) (``Because condensable PM
emissions exist almost entirely in the 2.5 micrometer range and
smaller, these emissions are inherently more significant for
PM2.5 than for prior PM standards addressing larger
particles''); see also 75 FR 80118 (December 21, 2010) (final rule
establishing methods for measurement of filterable and condensable
PM10 and PM2.5 emissions from stationary
sources). Third, the provisions do not adequately address
PM2.5 precursors. Although we agree with Clark County that
these applicability provisions cover sources of NOX,
SO2, and VOCs, which pollutants the EPA has defined as
precursors to PM2.5, those applicability provisions in
themselves do not ensure that emissions of the appropriate pollutants
will be addressed as PM2.5 precursors in the minor source
program in the same manner as included for purposes of PM2.5
major NSR.
In response to our proposed disapproval of Section 12.1 with
respect to the requirements for PM2.5, Clark asserted that
the provisions governing PM10 emissions in Section 12.1
provide sufficient authority to regulate sources of direct
PM2.5 emissions. We disagree with this assertion,
particularly to the extent that Clark County may be suggesting that
PM10 is an effective surrogate for PM2.5 in all
cases. Effective May 16, 2011, EPA ended the states' ability to use, as
a matter of policy, evaluation of PM10 (including the
PM10 NAAQS) as a surrogate for evaluation of
PM2.5 in Prevention of Significant Deterioration (PSD)
permitting actions, as had previously been allowed pursuant to a 1997
guidance document entitled ``Interim Implementation for the New Source
Review Requirements for PM2.5,'' October 23, 1997
(``PM10 Surrogate Policy'').\2\ 76 FR 28646 (May 18, 2011).
EPA terminated the use of the 1997 PM10 Surrogate Policy in
PSD permitting programs based on the Agency's conclusion that the
necessary technical tools to conduct PM2.5 analyses for PSD
sources had become available and that it was therefore no longer
appropriate to rely on the PM10 Surrogate Policy to protect
the PM2.5 NAAQS. Id. at 28648. Thus, PSD permit applications
must now be reviewed directly against the PM2.5
requirements. Id. at 28647. For these same reasons, we conclude that it
is not appropriate for Clark County to rely categorically on the
PM10 provisions in Section 12.1 to satisfy the requirements
of CAA section 110(a)(2)(C) with respect to the 1997 or 2006
PM2.5 NAAQS. Consistent with EPA's end to the use of the
PM10 Surrogate Policy for PSD permit programs, minor NSR
permit programs under CAA section 110(a)(2)(C) must require owners and
operators of sources and permitting authorities to conduct permit-
related PM2.5 analyses and may not allow the automatic use
of PM10 analysis as a surrogate for satisfying
PM2.5 requirements.
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\2\ The preamble to EPA's PM2.5 NSR Implementation
Rule provided that States with SIP-approved PSD programs could
continue to implement the program for particulate matter less than
10 micrometers (PM10) as a surrogate for meeting the PSD
program requirements for PM2.5 pursuant to the
PM10 Surrogate Policy. See 73 FR at 28341. As confirmed
in a May 18, 2011 rulemaking, however, EPA has ended the use of this
policy both under the Federal PSD program and in SIP-approved PSD
program areas. See 76 FR 28646 (May 18, 2011).
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In sum, Section 12.1 does not contain enforceable procedures that
enable Clark County to determine whether the construction or
modification of a stationary source of direct PM2.5
emissions and any emissions of PM2.5 precursors will result
in either a violation of an applicable control strategy or interference
with attainment or maintenance of the 1997 or 2006 PM2.5
NAAQS, nor does the rule contain enforceable procedures for preventing
construction or modification of such sources, as required by CAA
section 110(a)(2)(C) and 40 CFR 51.160-51.164. Consequently, we are
disapproving Section 12.1 with respect to the requirement in CAA
section 110(a)(2)(C) to regulate the construction and modification of
stationary sources of PM2.5 emissions as necessary to assure
that the 1997 and 2006 PM2.5 NAAQS are achieved.
Comment 2: Clark County disagreed with EPA's proposal to disapprove
language regarding federal enforceability in subsection 12.1.3.6(a)(5)
and stated that it ``could find no language [in the CAA or EPA
regulations] that explicitly prohibits an applicant from specifying or
declaring anything it deems appropriate in the information it
submits.'' Referencing an EPA guidance document addressing CAA title V
(Part 70) permitting issues,
[[Page 64042]]
Clark County stated that ``EPA indicated some precedent for declaring
which of the conditions of an `authority to construct or operate'
permit would be federally enforceable within the context of a Part 70
Operating Permit application.'' The County asserted that EPA's
authority to disapprove a state's minor source program is extremely
limited and that EPA may only disapprove such programs under CAA
section 110(a)(2)(C) if they ``interfere with attainment of the NAAQS
or other applicable requirements of the Act.'' Clark County stated its
belief that ``there can be provisions and conditions in minor source
permits that do not pertain to SIP requirements, nor otherwise relate
to any of the requirements of the Act,'' such as requirements
addressing noxious odors and public nuisances. Clark County stated that
it had intended to ``separately incorporate these conditions into a
minor source permit without submitting the conditions, nor the
mechanism for their adoption, as part of the SIP permit program,'' and
that such conditions should not be subject to federal enforcement or
citizen suits under CAA section 113 or 304.
EPA Response: We agree with the County that nothing in the CAA or
EPA regulations prohibits a state from issuing permits for minor
stationary sources containing requirements that are enforceable only
under state law, and we understand that the County's intention may have
been to use minor NSR permits issued pursuant to Section 12.1 both for
purposes of implementing the SIP-approved minor NSR program and for
purposes of implementing other state/local requirements not approved
into the SIP. We are disapproving subsection 12.1.3.6(a)(5), however,
because the current text of this provision is significantly misleading
to the regulated community and the public with respect to EPA's
enforcement authorities under the CAA, and because Section 12.1 as a
whole does not provide a reliable mechanism for distinguishing between
federally-enforceable permit conditions and state-only enforceable
permit conditions, as explained further below.
Under the CAA and EPA's implementing regulations, all limitations
and conditions in a permit issued pursuant to SIP-approved regulations,
including SIP-approved minor NSR permit programs, are federally
enforceable under the Act. See CAA 113(a)(1), (3), 42 U.S.C.
7413(a)(1), (3); 40 CFR 52.21(b)(17) (defining ``Federally
enforceable'' to include ``any permit requirements established * * *
under regulations approved pursuant to 40 CFR part 51, subpart I''); 40
CFR 52.23 (``Failure to comply with * * * any permit condition * * *
issued pursuant to approved or promulgated regulations for the review
of new or modified stationary or indirect sources * * * shall render
the person or governmental entity so failing to comply in violation of
a requirement of an applicable implementation plan and subject to
enforcement action under section 113 of the Clean Air Act.''); see also
54 FR 27274, 27282 (June 28, 1989) (noting that all construction
permits issued under regulations approved pursuant to 40 CFR 51.160-165
are federally enforceable). Such permit conditions are also enforceable
by citizens under CAA section 304 of the CAA. 42 U.S.C. 7604(a)(1),
(f)(4) (authorizing citizen suit for violation of ``an emission
standard or limitation under [the Act],'' including any ``standard,
limitation, or schedule established under any permit issued * * * under
any applicable State implementation plan approved by the Administrator.
* * *''). Thus, upon EPA's approval of Section 12.1 into the Clark
County portion of the Nevada SIP, all of the terms and conditions of a
permit issued under Section 12.1 are enforceable by the Administrator
under CAA section 113 and by citizens under CAA section 304.
By contrast, title V operating permits may contain permit
conditions that are not federally enforceable. Specifically, EPA's
regulations to implement the operating permit program in title V of the
CAA allow states to issue operating permits containing terms and
conditions that are not federally enforceable, provided those terms and
conditions are specifically identified as such in the permit. See 40
CFR 70.6(b)(2) (``Permit content'') (``the permitting authority shall
specifically designate as not being federally enforceable under the Act
any terms and conditions included in the permit that are not required
under the Act or under any of its applicable requirements''). These
regulations in 40 CFR part 70, however, apply to state operating permit
programs submitted to meet the requirements of title V of the CAA; they
do not apply to preconstruction review permit programs submitted to
meet the requirements of section 110(a)(2)(C) of the Act, which are,
instead, subject to EPA's regulations for review of new sources and
modifications in 40 CFR part 51, subpart I. We note that although EPA
does not require states to submit title V operating permit programs for
SIP approval, states may choose to do so, e.g., to provide a mechanism
for establishing federally enforceable permit limits that enable
otherwise major sources to avoid PSD or Nonattainment NSR (also known
as ``synthetic minor'' permit limits). Once a state operating permit
program is approved by EPA and incorporated into the applicable SIP
under section 110 of the Act, all terms and conditions contained in a
permit issued pursuant to such a program are considered federally
enforceable. 40 CFR 52.21(b)(17) and 52.23; see also 54 FR 27274 at
27281, 27284 (June 28, 1989).
Subsection 12.1.3.6(a)(5) of Clark County's minor NSR rule states
that a permit applicant may, at its option, include in its application
``a declaration that it wants the entire permit, or specifically
identified permit conditions or applicable requirements, to be
federally enforceable.'' On its face, this language allows a permit
applicant to identify those permit conditions for which the applicant
``wants'' a federally enforceable requirement, without regard to
whether the conditions so identified (or not identified) derive from
SIP-approved requirements or state-only requirements. At minimum, this
provision is misleading to the regulated community and the public
because it suggests that an applicant may request, and that Clark
County may issue, permit conditions limiting federal enforcement
authority with respect to permit conditions that derive from SIP-
approved requirements in Section 12.1. Given that all conditions of a
permit issued pursuant to a SIP-approved program are enforceable under
sections 113 and 304 the Act, and that permit conditions deriving only
from state law are not federally enforceable, it is not appropriate to
suggest that permit applicants have such an undefined ``option.''
We recognize, however, that Clark County may have intended to use
minor NSR permits issued under Section 12.1 to implement not only the
substantive requirements of Section 12.1, all of which are federally
enforceable upon SIP approval, but also to implement requirements in
other state regulations not submitted for SIP approval--e.g.,
conditions addressing noxious odors or public nuisances as defined
under state law. To the extent that this was the County's intent, we
recommend that the County add separate provisions to Section 12.1 that
authorize the County to include ``state-only'' terms and conditions in
a minor source permit issued pursuant to Section 12.1, provided those
terms and conditions and the state/local requirements that they
implement are specifically identified in the permit. In this case,
Clark County may provide permit applicants the option of identifying
[[Page 64043]]
such requirements as ``state-only'' requirements, provided the rule
clearly limits the option to those state-only requirements. For
example, subsection 12.1.3.6(a)(5) could be revised to read as follows:
At the option of the applicant, an application may identify for
the Control Officer's consideration those permit conditions that do
not derive from requirements of the Clean Air Act or regulations
approved into the applicable Nevada SIP and that the applicant
believes should, therefore, be identified in the permit as
conditions enforceable only under state law.
Comment 3: Clark County questioned EPA's proposal to disapprove the
County's definition of ``baseline actual emissions'' (BAE) in Section
12.2 and Section 12.3 in several respects. First, the County asserted
that with respect to existing electric utility steam generating units
(EUSGUs), notwithstanding its use of the phrase ``as of the particular
date'' in its definition of BAE, its definition is at least as
stringent as the corresponding federal regulation because EPA's
regulations ``contain no requirement for any adjustment of compliant
emissions whatsoever'' for EUSGUs. Second, the County recognized that
its definition differed from EPA's definition of BAE for existing
emission units other than EUSGUs (i.e., non-EUSGUs) but stated that
this difference was intentional and necessary because ``EPA does not
interpret or implement the definition [of BAE] consistent with its
plain meaning.'' Quoting from EPA's explanation, in the preamble to
EPA's 2002 final rule promulgating this definition (67 FR at 80197,
December 31, 2002), of the meaning of the term ``current'' in the
context of evaluating a contemporaneous emissions change for netting
purposes, Clark County asserted that it ``implements its rule in the
same manner EPA does'' and that ``rather than codifying rule language
inconsistent with this interpretation, the county has adopted rule
language consistent with both its own interpretation and practice and
EPA's interpretation and practice.''
EPA Response: We understand that Clark County's definition of BAE
reflects an attempt to clarify the methodology for calculating BAE and,
in response to the County's comments, we are approving the County's
definitions of this term, with one narrow exception discussed below. We
remain concerned, however, about ambiguities in the terms and strongly
recommend that the County revise the definitions at the next
opportunity to ensure that modifications at existing sources are
subject to clear and consistent criteria for calculating BAE.
Under EPA's PSD and NSR applicability provisions for ``major
modifications,'' both the assessment of whether a ``significant
emissions increase'' has occurred (step 1 of the applicability
analysis) and the assessment of creditable emissions increases or
decreases which occurred during a prior ``contemporaneous'' period
(step 2 of the applicability analysis) require calculation of
``baseline actual emissions'' (BAE). See 40 CFR 51.165(a)(2)(ii)(B) and
51.166(a)(7)(iv)(b) (procedures for calculating emissions increases; 40
CFR 51.165(a)(1)(vi) and 51.166(b)(3)(i) (definition of ``net emissions
increase''). Thus, a calculation of BAE is required both for the
project under review and for any previous (``contemporaneous'') changes
that resulted in creditable emissions increases or decreases. In both
cases, EPA's definition of BAE requires adjustments to the emission
calculations to ensure that any emissions exceeding certain applicable
requirements are not included in calculating the BAE.
Generally, for existing emission units, BAE is defined as ``the
average rate, in tons per year, at which the unit actually emitted [a
regulated NSR] pollutant'' during any consecutive 24-month period
selected by the owner or operator within a 5-year or 10-year period
immediately preceding the date that actual construction begins,
depending upon the type of unit being modified and with limited
exceptions. 40 CFR 51.165(a)(1)(xxxv) and 51.166(b)(47). For any
existing emissions unit other than an electric utility steam generating
unit (i.e., any existing ``non-EUSGU''), EPA's definition of BAE
requires, among other things, that the average emissions rate ``be
adjusted downward to exclude any emissions that would have exceeded an
emission limitation with which the major stationary source must
currently comply, had such major stationary source been required to
comply with such limitations during the consecutive 24-month period.''
40 CFR 51.165(a)(1)(xxxv)(B)(3) and 51.166(b)(47)(ii)(c). The purpose
of this requirement is to ensure that any emissions that are not
allowed under any legally enforceable limitations and that apply at the
time of the project are not counted as part of BAE. See 67 FR 80186,
80195 (December 31, 2002) (source owners/operators must ``identify the
most current legally enforceable limits on your emissions unit'' and
``[i]f these legally enforceable emission limitations and operating
restrictions are more stringent than those that applied during the 24-
month period, you must adjust downward the average annual emissions
rate that you calculated from the consecutive 24-month period to
reflect these current restrictions''); see also 67 FR at 80201 (``The
approach that we have adopted allows you to reference plant capacity
that has actually been used, but not pollution levels that are not
legally allowed at the time the modification is to occur.'').
For the calculation of BAE in step 1 of the applicability analysis
for a modification at an existing non-EUSGU, the reference to emission
limitations with which the source ``must currently comply, had [the]
source been required to comply with such limitations during the
consecutive 24-month period,'' is in reference to only one point in
time--i.e., when the project under review occurs. Thus, if the average
emission rate calculated for the selected 24-month period \3\ exceeds
an emission limitation that applies at the time the project under
review occurs, the past emissions in excess of that current emission
limitation must be excluded from the calculation of BAE for the project
under review. See 67 FR 80186 at 80195, 80201.
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\3\ For a non-EUSGU, this may be any consecutive 24-month period
``within the 10-year period immediately preceding either the date
the owner or operator begins actual construction of the project, or
the date a complete permit application is received by the reviewing
authority for a permit required either under this section or under a
plan approved by the Administrator, whichever is earlier, except
that the 10-year period shall not include any period earlier than
November 15, 1990.'' 40 CFR 51.165(a)(1)(xxxv)(B) and
51.166(b)(47)(ii).
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For the netting methodology in step 2 (i.e., for purposes of
calculating creditable increases and decreases in emissions from
changes that are ``contemporaneous'' with the project under review),
the term ``current'' may have multiple defining points, depending on
the number of ``contemporaneous'' changes being evaluated. EPA
explained the meaning of ``current'' in the context of a netting
analysis for an existing non-EUSGU in the preamble to the final rule
promulgating sections 51.165(a)(1)(xxxv)(B)(3) and 51.166(b)(47), as
follows:
Although we are not changing our definition of
``contemporaneous,'' today's action allows existing [non-EUSGUs] to
calculate the [BAE] for each contemporaneous event using the 10-year
look back period. That is, you can select any consecutive 24-month
period during the 10-year period immediately preceding the change
occurring in the contemporaneous period to determine the [BAE] for
each creditable emissions change. Generally, for each emissions unit
at which a
[[Page 64044]]
contemporaneous emissions change has occurred, you should use the
10-year look back period relevant to that change [footnote omitted].
When evaluating emissions increases from multi-unit modifications,
if more than one emissions unit was changed as part of a single
project during the contemporaneous period, you may select a separate
consecutive 24-month period to represent each emissions unit that is
part of the project. In any case, the calculated [BAE] for each
emissions unit must be adjusted to reflect the most current emission
limitations (including operational restrictions) applying to that
unit. ``Current'' in the context of a contemporaneous emissions
change refers to limitations on emissions and source operation that
existed just prior to the date of the contemporaneous change.
67 FR 80186, 80197 (December 31, 2002).
Thus, for each ``contemporaneous'' change that is considered in a
netting analysis, the reference in sections 51.165(a)(1)(xxxv)(B)(3)
and 51.166(b)(47)(ii)(c) to emission limitations with which the source
``must currently comply, had [the] source been required to comply with
such limitations during the consecutive 24-month period,'' is in
reference to requirements that applied just before the date of the
particular ``contemporaneous'' change. As with those ``current''
emission limits that must be reflected in the BAE for the project under
review, those emission limits that applied to a particular unit just
before it underwent a prior ``contemporaneous'' change (i.e., the most
``current'' applicable requirements at the time of the change) must be
reflected in the BAE for that particular change before any emissions
increases or decreases associated with it may be credited in the
netting analysis.
Clark County's definitions of BAE for non-EUSGUs in Section 12.2
and 12.3 require downward adjustments in average emission rates to
exclude emissions that exceed applicable emission limitations but use
the phrase ``the particular date'' instead of ``currently'' to define
the point in time that governs the identification of applicable
emission limitations. See Section 12.2, subsection 12.2.2(c)(1)(B)(i)
and (2)(D); Section 12.3, subsection 12.3.2(c)(1)(C) and (2)(D).
Specifically, the County's definitions of BAE require downward
adjustments to average emission rates to ``exclude any emissions that
would have exceeded an emission limitation with which the major
stationary source must comply as of the particular date, had such major
stationary source been required to comply with such limitations during
the consecutive 24-month period.'' Id. (emphasis added).\4\ These
definitions also contain a sentence providing further direction on the
calculation of BAE only for contemporaneous projects, as follows: ``For
the purposes of determining [BAE] for contemporaneous changes pursuant
to [the definition of NEI], the particular date is the date on which
the particular change occurred.'' Id. Although these provisions differ
from the language in EPA's definition of BAE in 40 CFR
51.165(a)(1)(xxxv)(B) and 51.166(b)(47)(ii), the language is generally
consistent with EPA's interpretative statements in the preamble to the
2002 rulemaking, as discussed above, and we understand the County
intends to implement these provisions consistent with those EPA
interpretations. Thus, we are approving the definitions, with one
narrow exception for what appears to be a drafting error in the
definition of BAE for non-EUSGUs in subsection 12.2.2(c)(2)(D), as
discussed further below. However, we strongly encourage the County to
clarify the meaning of the phrase ``the particular date'' for purposes
of calculating BAE both for the project under review (step 1) and for
any contemporaneous changes pursuant to the definition of NEI (step 2).
We recommend that the County provide such a clarification in the
regulatory text itself, so that the definition is clear on its face and
consistent with EPA's interpretative statements in the preamble to the
final rule promulgating these definitions (67 FR 80186).
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\4\ Subsection 12.2.2(c)(2)(D) does not contain this language
and instead contains language tracking EPA's definition in 40 CFR
51.166(b)(47)(ii)(c), but this appears to be a drafting error, as
discussed further below.
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Alternatively, Clark County may adopt BAE definitions that track
EPA's regulatory language in 40 CFR 51.165(a)(1)(xxxv)(B)(3) and
51.166(b)(47)(ii)(c). Although we recognize that EPA's regulatory text
does not specify the meaning of ``currently'' in the context of
assessing either the project under review or prior contemporaneous
changes, EPA provided an interpretation of this term in the preamble to
the 2002 rulemaking (67 FR 80186).
With respect to Clark County's definition of BAE for non-EUSGUs in
subsection 12.2.2(c)(2)(D), we are disapproving this provision because
the definition is internally inconsistent and confusing. Subsection
12.2.2(c)(2)(D) uses language consistent with EPA's definition in the
first sentence (``The average rate shall be adjusted downward to
exclude any emissions that would have exceeded an emission limitation
with which the major stationary source must currently comply had such
[source] been required to comply with such limitations during the
consecutive 24-month period''), but refers, in the second sentence, to
language that deviates from EPA's definition without explanation (``For
the purposes of determining the baseline actual emissions for
contemporaneous changes pursuant to paragraph (ii)(1)(B) of the
definition of [NEI], the particular date is the date on which the
particular change occurred''). This internal inconsistency is
problematic, as neither the regulatory text nor any supporting analysis
associated with this rulemaking explains whether/how the phrase ``the
particular date'' in the second sentence informs the phrase ``currently
comply'' in the first sentence of subsection 12.2.2(c)(2)(D). Although
we recognize that this may simply be a drafting error and that Clark
County may have intended to use the phrase ``as of the particular
date'' in this provision, we are disapproving the provision because on
its face it is confusing and raises enforceability concerns.
Comment 4: Clark County questioned EPA's proposal to disapprove the
definition of ``net emissions increase'' (NEI) in Section 12.2 and
strongly disagreed, in particular, with the statement in EPA's TSD that
EPA's regulatory definition of NEI ``does not call for any assessment
of actual emissions after a contemporaneous project.'' The County
stated that the federal definition of NEI expressly requires that NEI
be calculated using the difference between baseline actual emissions
before a contemporaneous project and the new level of actual emissions
resulting from that project and asserted that ``[t]he only sensible
interpretation of the phrase `new level of actual emissions' in this
context is `the actual emissions after the contemporaneous project.' ''
The County suggested that EPA clarify what it means by ``does not call
for any assessment of actual emissions after a contemporaneous
project.''
EPA Response: EPA agrees that our explanation of this issue in our
TSD was not entirely accurate or clear. For example, our statement that
EPA's definition of ``net emissions increase'' (NEI) ``does not call
for any assessment of actual emissions after a contemporaneous
project'' was incorrect. As the County correctly notes, for purposes of
identifying creditable increases and decreases in emissions occurring
prior to the particular physical or operational change under review,
during a period that is ``contemporaneous'' with that particular
[[Page 64045]]
change, EPA's definition of NEI requires an assessment of ``baseline
actual emissions'' before and ``actual emissions'' after the prior
``contemporaneous'' project. See, e.g., 40 CFR 51.166(b)(3)(vi)(a)
(``[a] decrease in actual emissions is creditable only to the extent
that: (a) The old level of actual emissions or the old level of
allowable emissions, whichever is lower, exceeds the new level of
actual emissions * * *.''). However, although we understand that Clark
County's definition of NEI reflects an attempt to clarify the term, we
are disapproving it because the County has not demonstrated that its
definition is more stringent than or at least as stringent in all
respects as EPA's corresponding definition. See 40 CFR 51.165(a)(1),
51.166(a)(7)(iv). Specifically, the definition of NEI in Section 12.2
is deficient because it does not establish an appropriate method for
calculating the ``actual emissions'' after a previous contemporaneous
project, as explained further below, and the substantively identical
definition of NEI in Section 12.3 is also deficient for the same
reasons.
Under EPA's PSD and NSR regulations, a determination as to whether
a significant emissions increase is a ``major modification'' requires a
determination as to whether the change has resulted in a significant
``net emissions increase.'' See 40 CFR 51.165(a)(1)(v) and 51.166(b)(2)
(defining ``major modification''); 40 CFR 51.165(a)(1)(vi) and
51.166(b)(3) (defining NEI). EPA's definition of NEI in 40 CFR
51.165(a)(1)(vi) and 51.166(b)(3), in turn, requires a calculation of
all creditable increases and decreases which occurred during a previous
period that is ``contemporaneous'' with the particular project under
review. The definition of NEI requires that ``[b]aseline actual
emissions for calculating increases and decreases'' associated with a
contemporaneous project be determined as provided in EPA's definition
of ``baseline actual emissions'' (40 CFR 51.165(a)(xxxv) and
51.166(b)(47)), with limited exceptions. See 40 CFR
51.165(a)(1)(vi)(A)(2) and 51.166(b)(3)(i)(b).
EPA's definition of NEI does not specify how the actual emissions
after (i.e., resulting from) a prior contemporaneous project must be
calculated. Id. Importantly, however, for purposes of determining
creditable increases and decreases in a netting evaluation, EPA's
definition of NEI provides that paragraphs 40 CFR 51.165(a)(1)(xii)(B)
and 51.166(b)(21)(ii) \5\ shall not apply in determining post-project
actual emissions. Those sections define ``actual emissions'' based on
actual operating hours, production rates, and types of materials
processed, stored, or combusted during a previous 24-month period that
is ``representative of normal source operation.'' See 40 CFR
51.165(a)(1)(vi)(G) and 51.166(b)(3)(viii). Thus, only ``source-
specific allowable emissions'' or ``potential to emit'' may be used to
calculate the actual emissions after (i.e., resulting from) a prior
contemporaneous project in the netting analysis. See 40 CFR
51.165(a)(1)(xii)(C), (D) and 51.166(b)(21)(iii), (iv). EPA regulations
specifically provide that the ``actual emissions'' of an emissions unit
that has not begun operations as of a particular date must be equal to
its ``potential to emit'' on that date. 40 CFR 51.165(a)(1)(xii)(D) and
51.166(b)(21)(iv) (``For any emissions unit that has not begun normal
operations on the particular date, actual emissions shall equal the
potential to emit of the unit on that date.'')
---------------------------------------------------------------------------
\5\ These two provisions, which are identical, state as follows:
In general, actual emissions as of a particular date shall equal the
average rate, in tons per year, at which the unit actually emitted
the pollutant during a consecutive 24-month period which precedes
the particular date and which is representative of normal source
operation. The reviewing authority shall allow the use of a
different time period upon a determination that it is more
representative of normal source operation. Actual emissions shall be
calculated using the unit's actual operating hours, production
rates, and types of materials processed, stored, or combusted during
the selected time period.
40 CFR 51.165(a)(1)(xii)(B), 51.166(b)(21)(ii).
---------------------------------------------------------------------------
Consistent with these regulations, EPA's longstanding policy
provides that where a ``contemporaneous'' project ``will affect the
normal operations of an existing emissions unit (as in the case of a
change which could result in increased use of the unit), `actual
emissions' after the change must be assumed to be equal to `potential
to emit.''' Memorandum dated September 18, 1989, from John Calagni,
Director, Air Quality Management Division, to William B. Hathaway,
Director, Air, Pesticides, and Toxics Division, ``Request for
Clarification of Policy Regarding the `Net Emissions Increase''' (1989
NEI Policy Memo) at 3 (quoting 40 CFR 52.21(b)(21)(iv)). Alternatively,
where ``allowable emissions'' are the same as or less than the
``potential to emit'' for an emissions unit, ``allowable emissions''
may be used to define the ``actual emissions'' of that unit after the
change. Id.
Finally, with respect to a decrease in actual emissions associated
with a contemporaneous change, such decrease is creditable only when
three specific criteria are met: (1) The old level of actual emissions
or the old level of allowable emissions, whichever is lower, exceeds
the new level of actual emissions; (2) it is enforceable as a practical
matter at and after the time that actual construction on the particular
change begins; and (3) it has approximately the same qualitative
significance for public health and welfare as that attributed to the
increase from the particular change. 40 CFR 51.165(a)(1)(vi)(E) and
51.166(b)(3)(vi). The second of these three criteria essentially
requires the use of ``allowable emissions'' or ``potential to emit'' to
define the ``actual emissions'' of a unit after a prior
``contemporaneous'' change in order to credit an associated emissions
decrease in the netting evaluation.
The three additional paragraphs contained in the Section 12.2
definition of NEI (under subsection 12.2.2(ii)(1)(C)), which are not
included in EPA's definition of NEI in 40 CFR 51.166(b)(3), state as
follows:
(i) For the purposes of calculating increases under paragraph
(1)(B) of this definition, actual emissions after the contemporaneous
project shall be determined as provided in the definition of actual
emissions, except as provided in paragraph (1)(C)(iii) of this
definition.
(ii) For the purposes of calculating increases under paragraph
(1)(B) of this definition, if the Control Officer determines that there
is no sufficiently representative time period of actual emissions after
a contemporaneous project, pursuant to Section 12.2.2(a)(1), actual
emissions after the contemporaneous project shall be determined as
provided in the definition of projected actual emissions.
(iii) For the purposes of calculating decreases under paragraph
(1)(B) of this definition, actual emissions after the contemporaneous
project shall be determined as provided in the definition of actual
emissions.
Section 12.2, subsection 12.2.2(ii)(1)(C)(i)-(iii).\6\
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\6\ The applicable definition of ``actual emissions'' in this
context is in subsection 12.2.2(a), which contains language
identical to EPA's definition of ``actual emissions'' in 40 CFR
51.166(b)(21)(ii). See Section 12.2, subsection 12.2.2 (Definitions)
(``Unless the context otherwise requires, the following terms shall
have the meanings set forth [in subsection 12.2.2] for the purposes
of Section 12.2 * * * .'')
---------------------------------------------------------------------------
These three provisions are inconsistent with EPA regulations and
longstanding interpretations, for the following reasons.
[[Page 64046]]
First, subsection 12.2.2(ii)(1)(C)(i) states that for the purposes
of calculating creditable increases that are contemporaneous with a
particular change, ``actual emissions after the contemporaneous project
shall be determined as provided in the definition of actual emissions''
with limited exceptions (emphasis added), but it does not prohibit use
of ``actual emissions'' as defined in subsection 12.2.2(a)(1) (i.e.,
using the unit's ``actual operating hours, production rates, and types
of materials processed, stored, or combusted during'' a previous 24-
month period that is ``representative of normal source operation'').
This is problematic because the language defining ``actual emissions''
in subsection 12.2.2(a)(1) is substantively identical to EPA's language
defining ``actual emissions'' in 40 CFR 51.166(b)(21)(ii), which as
noted above EPA's definition of BAE explicitly prohibits source owners/
operators from using for purposes of determining creditable increases
and decreases in a netting evaluation. See 40 CFR 51.165(a)(1)(vi)(G)
and 51.166(b)(3)(viii). For purposes of determining ``actual
emissions'' immediately after a contemporaneous physical or operational
change, use of this definition of ``actual emissions'' is not
appropriate because there is no relevant data regarding operating
hours, production rates, and types of materials processed, stored, or
combusted. Rather, ``actual emissions'' in this context must be equal
to the new or modified unit's ``potential to emit'' (PTE) or
``allowable emissions,'' where allowable emissions are the same as or
less than PTE. See 40 CFR 51.166(b)(21)(iv) and 1989 NEI Policy Memo at
3.
Second, subsection 12.2.2(ii)(1)(C)(ii) states that ``if the
Control Officer determines that there is no sufficiently representative
time period of actual emissions after a contemporaneous project,
pursuant to Section 12.2.2(a)(1), actual emissions after the
contemporaneous project shall be determined as provided in the
definition of projected actual emissions.'' \7\ As discussed above, for
purposes of a netting analysis, EPA regulations require that the
``actual emissions'' following a contemporaneous change be calculated
based on PTE or ``allowable emissions,'' not projected actual
emissions. 40 CFR 51.165(a)(1)(xii)(C), (D) and 51.166(b)(21)(iii),
(iv); see also 67 FR 80186, 80191 (December 31, 2002) (noting that the
actual-to-projected actual applicability test should be used only for
purposes of determining whether a proposed modification results in a
significant emissions increase (i.e., step 1 of the applicability
analysis) and ``should not be used when determining a source's actual
emissions on a particular date as may be used for other NSR-related
requirements''). As EPA explained in April 2011, EPA revised the PSD
and NNSR rules in 2002 by adding provisions to implement the new
``actual-to-projected-actual'' test for certain projects in step one of
the applicability analysis but left the existing regulatory structure
in place for implementing step two. See letter dated April 4, 2011,
from Cheryl L. Newton, Director, Air and Radiation Division, EPA Region
5, to Keith Baugues, Assistant Commissioner, Office of Air Quality,
Indiana Department of Environmental Management (2011 NEI Letter) at 3
(citing, e.g., 40 CFR 52.21(a)(2)(iv)(b)).\8\ Neither the definition of
significant NEI in 40 CFR 51.166(b)(3) nor any of the definitions used
to calculate a significant NEI use ``projected actual emissions.'' 2011
NEI Letter at 3.
---------------------------------------------------------------------------
\7\ We assume that Clark County intended here to reference the
definition of ``projected actual emissions'' in subsection
12.2.2(nn) of Section 12.2.
\8\ EPA purposefully did not extend the actual-to-projected-
actual test to the netting evaluation in step two of the
applicability test, because the Agency believed it was ``appropriate
[for] projects that will result in a significant emissions increase
under step one of the process, and, thus, are more likely to
adversely impact air quality, to undergo a more conservative
examination using the actual-to-potential methodology under step two
of the analysis.'' 2011 NEI Letter at 3.
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Finally, subsection 12.2.2(ii)(1)(C)(iii) is substantively
identical to subsection 12.2.2(ii)(1)(C)(i), except that it applies to
calculating emission decreases instead of increases associated with a
contemporaneous change. This provision is problematic because it calls
for the use of ``actual emissions'' as defined in 40 CFR
51.166(b)(21)(ii) for purposes of calculating creditable decreases in a
netting analysis, which as discussed above is inconsistent with EPA's
definition of NEI. See 40 CFR 51.166(b)(3)(viii). The use of ``actual
emissions'' as defined in section 51.166(b)(21)(ii) for this purpose
also conflicts with EPA's criteria in 40 CFR 51.166(b)(3)(vi) for
crediting emission decreases associated with a contemporaneous change,
because such ``actual emissions'' generally are not enforceable as a
practical matter.
For all of these reasons, we are disapproving subsections
12.2.2(ii)(1)(C)(i), (ii), and (iii) in Clark County's definition of
NEI, because these provisions are inconsistent with EPA's definition of
NEI in 40 CFR 51.166(b)(3) and relevant policy. For the same reasons,
we are also disapproving identical language in Clark County's
definition of NEI in Section 12.3, subsections 12.3.2(aa)(1)(B)(ii),
(iii), and (iv). See 40 CFR 51.165(a)(1)(vi)(E) and (G). Clark County
may address these deficiencies by adopting language consistent with
EPA's prohibition on use of ``actual emissions'' as defined in
51.165(a)(1)(xii)(B) and 40 CFR 51.166(b)(21)(ii), so that the
definitions of NEI in both Section 12.3 and Section 12.2 track EPA's
corresponding definitions in 40 CFR 51.165(a)(1)(vi) and 51.166(b)(3).
Alternatively, should Clark County seek to further clarify the
methodology for calculating the emissions increases or decreases
resulting from a contemporaneous project, we recommend that the County
replace the three paragraphs discussed above with the following
language:
For the purposes of calculating emissions increases or decreases
under paragraph (1)(B) of this definition, actual emissions after
the contemporaneous project shall be equal to the ``potential to
emit'' or ``allowable emissions'' of the project, whichever is
lower.
Comment 5: With respect to the Nevada Division of Environmental
Protection's (NDEP) obligation to submit NSR SIP revisions meeting the
applicable requirements of subpart 2 of part D, title I of the Act, for
the portion of Clark County that is designated and classified as
``marginal'' nonattainment for the 1997 8-hour ozone standard, NDEP
expressed concern about EPA's suggestion that the State could address
the regulatory gap by submitting a revised rule extending the existing
construction prohibition in NAC section 445B.22083 to cover the entire
Clark County ozone nonattainment area. NDEP stated that such an
expansion of the existing construction prohibition is not a viable
option given current economic conditions and stated that there are
``two equally obvious and significantly less harmful options'' for
addressing this requirement.
First, NDEP emphasized that EPA has made a clean data finding for
the 1997 8-hour ozone nonattainment area within Clark County and that
the State is awaiting EPA action on Clark County's redesignation
request and maintenance plan for this standard. Both NDEP and Clark
County urged EPA to take action soon on this redesignation request and
maintenance plan.
Second, NDEP stated that it has nonattainment provisions in its SIP
and that NDEP ``is not required to adopt a program if it has adequate,
equivalent-performing regulatory provisions.'' NDEP stated that EPA has
not provided specific guidance on the NSR
[[Page 64047]]
deficiencies but that NDEP is currently reviewing its nonattainment
provisions.
EPA Response: As an initial matter, we note that comments regarding
NDEP's NSR obligations with respect to stationary sources under its
jurisdiction within the Clark County ozone nonattainment area are
outside the scope of today's action on Clark County's NSR SIP
submission. Our proposed rule identified this issue not as a current
program deficiency but rather as a courtesy to remind the State of
upcoming NSR obligations for the 1997 8-hour ozone standard. Given our
proposed action on Clark County's NSR SIP submission highlighted this
upcoming obligation on NDEP's part, however, we respond below to the
State's and Clark County's comments on this issue.
EPA appreciates NDEP's concerns about expanding the existing
construction prohibition in NAC section 445B.22083 and agrees that
several other options are available to address the State's NSR
obligations with respect to ozone precursor emissions from fossil fuel-
fired steam-powered power plants within Clark County. First, as both
NDEP and Clark County correctly note, in April 2011 the State submitted
a redesignation request and maintenance plan for the 1997 8-hour ozone
standard, which became complete by operation of law in October 2011.
EPA is currently reviewing this submission and commits to work with
both agencies to address the State's request for redesignation to
attainment. As NDEP correctly notes, EPA determined based on ambient
air monitoring data that the ozone nonattainment area within Clark
County has attained the 1997 8-hour ozone NAAQS (76 FR 17343, March 29,
2011), which is a prerequisite to redesignation to attainment under
section 107(d)(3)(E) of the CAA. A final rule redesignating the Clark
County ozone nonattainment area to attainment for the 1997 8-hour ozone
NAAQS consistent with section 107(d)(3)(E) of the CAA would eliminate
the State's NSR obligations for purposes of the 1997 8-hour ozone
NAAQS.
Second, with respect to NDEP's statement that the existing Nevada
SIP contains nonattainment provisions and that NDEP is not required to
adopt an NSR program if it has adequate, equivalent regulatory
provisions, we are aware of several nonattainment NSR provisions in the
existing Nevada SIP, including certain provisions in Article 13 of the
Nevada Air Quality Regulations (``Point Sources'') and in the Utility
Environmental Protection Act in title 58 of the Nevada Revised
Statutes. We stand ready to work with NDEP in evaluating the relevant
SIP provisions to determine whether they adequately address the State's
current NSR obligations with respect to stationary sources under NDEP
jurisdiction for the 1997 8-hour ozone NAAQS in Clark County.
III. Final Action
For the reasons provided in our proposed rule and above in response
to comments, pursuant to sections 110(k) and 301(a) of the Clean Air
Act, EPA is finalizing a limited approval and limited disapproval of
new and amended regulations that govern applications for, and issuance
of, permits for stationary sources under the jurisdiction of the Clark
County Department of Air Quality. Specifically, EPA is finalizing a
limited approval and limited disapproval of the new and amended
regulations listed in table 1 above as a revision to Clark County
portion of the Nevada SIP.
EPA is taking this action because, although we find that the new
and amended rules meet most of the applicable requirements for such NSR
programs and that the SIP revisions improve the existing SIP, we have
also found certain deficiencies that prevent full approval.
Specifically, our limited disapproval of the minor NSR permit
program in Section 12.1 is based on the following deficiencies: (1) The
absence of a means for determining whether the construction or
modification of a stationary source will result in a violation of
applicable portions of the control strategy or interference with
attainment or maintenance of the 2006 24-hour PM2.5 NAAQS
and the 2008 Lead NAAQS; (2) inappropriate language regarding federal
enforceability of permits issued under Section 12.1; (3) the absence of
provisions to ensure that approval of any construction or modification
must not affect the responsibility of the owner or operator to comply
with applicable portions of the control strategy; (4) inappropriate
exemptions for sources identified in a separate rule that is not SIP-
approved (Section 12.5); (5) the absence of applicability provisions
that cover sources of PM2.5 or PM2.5 precursor
emissions; and (6) the absence of provisions to ensure that the air
quality impacts of stationary sources are not underestimated due to
stack heights that exceed good engineering practice or unacceptable air
dispersion modeling techniques.
Our limited disapproval of the PSD permit program in Section 12.2
is based on the following deficiencies: (1) Definitions for the terms
``allowable emissions,'' ``baseline actual emissions,'' ``net emissions
increase,'' ``major modification,'' and ``regulated NSR pollutant''
that are not entirely consistent with EPA's definitions in 40 CFR
51.166; (2) a provision governing adjustment of PALs to incorporate
requirements that become effective during the term of a PAL that is not
entirely consistent with EPA's requirements; and (3) the absence of
provisions to ensure that approval of any construction or modification
must not affect the responsibility of the owner or operator to comply
with applicable portions of the control strategy.
Finally, our limited disapproval of the nonattainment NSR program
in Section 12.3 is based on the following deficiencies: (1) Provisions
governing offsets and calculation of emission reduction credits that do
not ensure the integrity of offset calculations and that reference a
separate rule that is not SIP-approved (Section 12.7) for important
criteria governing these calculations; (2) definitions for the terms
``net emissions increase,'' ``major modification,'' and ``regulated NSR
pollutant'' that are not entirely consistent with EPA's definitions in
40 CFR 51.165; (3) provisions governing interpollutant trades that do
not satisfy EPA's criteria for approval of such trades; (4) the absence
of provisions to ensure that the air quality impacts of stationary
sources are not underestimated due to stack heights that exceed good
engineering practice or unacceptable air dispersion modeling
techniques; and (5) the absence of provisions to ensure that approval
of any construction or modification must not affect the responsibility
of the owner or operator to comply with applicable portions of the
control strategy.
The intended effect of this limited approval and limited
disapproval action is to update the applicable state implementation
plan with current State rules for permitting of stationary sources,\9\
and to set the stage for remedying deficiencies in these permitting
rules. With respect to those deficiencies that relate to the
nonattainment NSR requirements of part D, title I of the Act, mandatory
sanctions will apply to the Clark County nonattainment area under
section 179 of the Clean Air Act unless Nevada submits, and EPA
approves, SIP revisions correcting the deficiencies within 18 months of
the effective date of this final rule. See 40 CFR 52.31. In addition,
this limited disapproval action
[[Page 64048]]
triggers an obligation on EPA to promulgate a Federal Implementation
Plan addressing the deficient SIP elements unless Nevada submits, and
EPA approves, SIP revisions correcting the deficiencies within two
years of the effective date of this final rule. We stand ready to work
with Clark County to ensure that its upcoming rulemaking processes
result in permit programs that fully satisfy CAA requirements.
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\9\ Final approval of the rules in table 1 supersedes the rules
listed in table 2, above, in the existing Nevada SIP.
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
A. Executive Order 12988, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 128665, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Reduction Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because SIP approvals or disapprovals under
section 110 of the Clean Air Act do not create any new requirements but
simply approve or disapprove requirements that the State is already
imposing. Therefore, because this limited approval/limited disapproval
action does not create any new requirements, I certify that this action
will not have a significant economic impact on a substantial number of
small entities. Moreover, due to the nature of the Federal-State
relationship under the Clean Air Act, preparation of flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of State action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co., v.
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this limited approval/limited disapproval
action does not include a Federal mandate that may result in estimated
costs of $100 million or more to either State, local, or tribal
governments in the aggregate, or to the private sector. This Federal
action takes a limited approval/limited disapproval action on pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule 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, because it
merely takes a limited approval/limited disapproval action on State
rules implementing a Federal standard, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. Thus, the requirements of section 6
of the Executive Order do not apply to this rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it takes a
limited approval/limited disapproval action on State rules implementing
a Federal standard.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to 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
significant regulatory action under Executive Order 12866.
[[Page 64049]]
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this rulemaking. In reviewing SIP submissions, EPA's role is
to approve or disapprove state choices, based on the criteria of the
Clean Air Act. Accordingly, this action merely takes a limited
approval/limited disapproval action on certain State requirements for
inclusion into the SIP under section 110 of the Clean Air Act and will
not in-and-of itself create any new requirements. Accordingly, it does
not provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 17, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Volatile organic
compounds, Nitrogen dioxide, Sulfur oxides, Particulate matter, Lead,
Reporting and recordkeeping requirements.
Dated: September 28, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
40 CFR Part 52 is amended as follows:
PART 52--[APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart DD--Nevada
0
2. In Sec. 52.1470 in paragraph (c), Table 3 is amended by:
0
a. Revising the entry for ``Section 0.''
0
b. Adding in numerical order entries for ``Section 12.0,'' ``Section
12.1,'' ``Section 12.2,'' ``Section 12.3,'' and ``Section 12.4.''
0
c. Removing the entries for ``Section 1 (``Definitions''): Subsection
1.3,'' ``Section 1 (``Definitions''): Subsection 1.50,'' ``Section 1
(``Definitions''): Subsection 1.78,'' ``Section 1 (``Definitions''):
[unnumbered],'' ``Section 1 (``Definitions''): Subsection 1.85,''
``Section 1 (``Definitions''): Subsection 1.89,'' ``Section 12
(excluding subsections 12.2.18 and 12.2.20),'' ``Section 16:
Subsections 16.1-16.9,'' ``Section 58'' and ``Section 59 [excluding
subsection 59.2 (``Local Offset Requirements'']''.
Sec. 52.1470 Identification of plan.
* * * * *
(c) * * *
Table 3--EPA-Approved Clark County Regulations
----------------------------------------------------------------------------------------------------------------
County
County citation Title/subject effective EPA approval date Additional explanation
date
----------------------------------------------------------------------------------------------------------------
Section 0.................... Definitions....... 5/18/10 [Insert Federal Submitted on 5/22/12.
Register page
number where the
document begins],
10/18/12.
* * * * * * *
Section 12.0................. Applicability, 11/3/09 [Insert Federal Submitted on 2/11/10.
General Register page
Requirements and number where the
Transition document begins],
Procedures. 10/18/12.
Section 12.1................. Permit 11/3/09 [Insert Federal Submitted on 2/11/10.
Requirements for Register page
Minor Sources. number where the
document begins],
10/18/12.
Section 12.2................. Permit 3/6/12 [Insert Federal 5/22/12.
Requirements for Register page
Major Sources in number where the
Attainment Areas document begins],
(Prevention of 10/18/12.
Significant
Deterioration).
[[Page 64050]]
Section 12.3................. Permit 5/18/10 [Insert Federal Submitted on 9/01/10.
Requirements for Register page
Major Sources in number where the
Nonattainment document begins],
Areas. 10/18/12.
Section 12.4................. Authority to 5/18/10 [Insert Federal Submitted on 9/01/10.
Construct Register page
Application and number where the
Permit document begins],
Requirements For 10/18/12.
Part 70 Sources.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2012-25545 Filed 10-17-12; 8:45 am]
BILLING CODE 6560-50-P