Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
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
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.
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).
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 PM
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).
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
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: PM
First, the provisions do not explicitly regulate sources of direct PM
In response to our proposed disapproval of Section 12.1 with respect to the requirements for PM
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 PM
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.
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.
Subsection 220.127.116.11(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—
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.
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).
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 (
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—
For the netting methodology in step 2 (
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
Thus, for each “contemporaneous” change that is considered in a netting analysis, the reference in sections 51.165(a)(1)(xxxv)(B)(
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.
Alternatively, Clark County may adopt BAE definitions that track EPA's regulatory language in 40 CFR 51.165(a)(1)(xxxv)(B)(
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.
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.”
EPA's definition of NEI does not specify how the actual emissions after (
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.
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).
These three provisions are inconsistent with EPA regulations and longstanding interpretations, for the following reasons.
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
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.”
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.
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).
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.
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
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.
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 PM
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 appro