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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
NV ID: [NV052-0079; FRL-7669-3]
NOTICE: PROPOSED RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans; New Source Review; State of Nevada, Clark County Department of Air Quality Management
DATES: Comments on this proposed rule must be received in writing by July 2, 2004.
DOCUMENT SUMMARY: This action is a proposed partial approval and partial disapproval of several rules that were submitted as a revision of the Clark County portion of the Nevada State Implementation Plan (SIP). We had approved a similar version of these rules into the Nevada SIP in 1999. See 64 FR 25210 (May 11, 1999). Our approval was appealed to the U.S. Court of Appeals for the Ninth Circuit, which vacated the 1999 approval and remanded our approval of the rules for further consideration. See Hall v. EPA, 273 F.3d 1146 (9th Cir. 2001). This proposed partial approval and partial disapproval of the rules for the reasons discussed more fully below responds to the issues raised in the court's remand.
The rules at issue in this proposed action were adopted by the Clark County Department of Air Quality Management for issuing permits for new or modified stationary sources in Clark County to comply with the applicable permitting requirements under parts C and D of title I of the Clean Air Act as amended in 1990 to prevent significant deterioration in attainment areas and to attain the National Ambient Air Quality Standards in nonattainment areas. EPA is also proposing to approve as a revision to the Nevada SIP a State regulation prohibiting the construction of major new or modified sources under exclusive State jurisdiction in the nonattainment areas within Clark County. The intended effect of this proposed action is to ensure that the Clark County Department of Air Quality Management's permitting rules are consistent with Ninth Circuit's ruling in Hall v. EPA and with the requirements of the Clean Air Act, as amended in 1990. EPA is also proposing to amend the appropriate section of the Code of Federal Regulations to reflect the successful court challenge to an EPA approval of previous versions of these local rules. Lastly, under section 110(k)(6) of the Act, EPA is proposing to correct or clarify certain previous final rulemaking actions taken by EPA on revisions to the Clark County portion of the Nevada SIP. EPA is taking comments on this proposal and plans to follow with a final action.
SUMMARY: Nevada,
SUPPLEMENTAL INFORMATION
Throughout this document, ``we,'' ``us'' and ``our'' refer to EPA.Table of Contents
I. Evaluation of Clark County New Source Review Rules
A. The State's Submittal
B. EPA's Evaluation and Action
II. Corrections to, or Clarification of, the Clark County Portion of Nevada State Implementation Plan
III. Proposed Action and Public Comment
IV. Statutory and Executive Order Reviews
I. Evaluation of Clark County New Source Review Rules
A. The State's Submittal
Table 1 lists the rules addressed by this proposal with the dates
that they were adopted by the local air agency, the Clark County
Department of Air Quality Management (DAQM), or were adopted by the State Environmental
[[Page 31057]]
Commission (SEC), and submitted by the State air agency, the Nevada
Division of Environmental Protection (NDEP), to EPA as revisions to the Nevada State Implementation Plan (SIP).
Table 1.Submitted Rules
Agency Rule
On November 18, 2003, the submittal containing DAQM's rules was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.
DAQM's predecessor agency (the Clark County Health District) adopted earlier versions of the Clark County New Source Review (NSR) rules, then numbered section 1 (Definitions), section 11 (Ambient Air Quality Standards), and section 15 (Source Registration), at various times from 1979 through 1981, which we approved into the Clark County portion of the Nevada SIP at various times in 1981 and 1982. Specifically, we approved different defined terms of section 1 (Definitions) into the applicable SIP on three occasions in 1981 and 1982. See 46 FR 21758 (April 14, 1981), 46 FR 43141 (August 27, 1981), and 47 FR 26620 (June 21, 1982). We approved section 11 (Ambient Air Quality Standards) into the applicable SIP on August 27, 1981 (46 FR 43141). We approved different subsections of section 15 (Source Registration) into the applicable SIP on two occasions in 1981 and 1982. See 46 FR 21758 (April 14, 1981) and 47 FR 26620 (June 21, 1982).
Pursuant to the Clean Air Act Amendments of 1990 (CAA or Act), Clark County revised their NSR rules, then contained in local sections 0, 12, and 58, and in 1995, EPA proposed to approve with a contingency, and disapprove in the alternative, these revised rules into the SIP. See 60 FR 38777 (July 28, 1995). Following our 1995 proposed action, Clark County revised their NSR rules (sections 0, 12, and 58) to address the contingency identified by EPA and resubmitted them via NDEP to EPA. In 1999, we found the contingency to have been satisfied and approved the revised NSR rules into the SIP. See 64 FR 25210 (May 11, 1999). Our 1999 final action was challenged, and in 2001, the U.S. Court of Appeals for the Ninth Circuit vacated our approval of Clark County's NSR rules (specifically, sections 0, 12, and 58, as submitted and acted on in 1999). See Hall v. EPA, 273 F.3d 1146 (9th Cir. 2001).
The court vacated our approval on the grounds that EPA did not have an adequate basis under section 110(l) of the Act to conclude that substitution (i.e., replacement or supercession) of the preexisting NSR SIP rules (sections 1, 11, and 15) with the new NSR rules (sections 0, 12, and 58) would not interfere with attainment of the NAAQS for carbon monoxide (CO) and particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10) (i.e., the two pollutants for which a subregion of Clark County, Las Vegas Valley, is designated nonattainment) by the applicable attainment deadlines. In recognition of this ruling, we are proposing to delete and reserve the paragraphs in section 1470 (``Identification of plan'') of 40 CFR part 52, subpart DD (Nevada) that codified our 1999 approval (i.e., 40 CFR 52.1470(c)(37) and (38)) to clarify that, until the effective date of EPA's final approval of the submitted NSR rules into the SIP, sections 1, 11, and 15 (as approved by EPA in 1981 and 1982) represent the applicable SIP NSR rules in Clark County.
Subsequently, Clark County adopted revised NSR rules (then contained in local sections 0, 11, 12, 58, and 59) on December 4, 2001. This version of the Clark County NSR rules, excluding section 11, was submitted to EPA by NDEP by letter dated February 25, 2003. We did not take action on that submittal, which has been superceded by DAQM's adoption of additional revisions to the Clark County NSR rules (now expanded to include section 52, subsection 52.8, as well as sections 0, 11, 12, 58 and 59) on October 7, 2003 and NDEP's resubmittal to EPA dated October 23, 2003. In this notice, we refer to this latest submittal of the DAQM NSR rules (sections 0, 11, 12, 52.8, 58, and 59) as the ``DAQM NSR submittal.'' While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals. The TSD provides additional background information on the various NSR SIP submittals for Clark County.
EPA revised its federal regulations implementing Parts C and D of the CAA on December 31, 2002, and those revisions became effective on March 3, 2003. Because Clark County had submitted a version of its revised NSR rules to us specifically in response to the court's 2001 ruling in Hall v. EPA, EPA is now evaluating DAQM's NSR submittal based on the federal NSR regulations that were in effect at the time of the ruling in Hall v. EPA (prior to December 31, 2002). This proposed rulemaking, therefore, does not establish any precedent for evaluating whether a proposed NSR SIP fulfills the requirements of the revised NSR regulations that were published December 31, 2002. The evaluation in this proposed rulemaking of DAQM's NSR submittal is limited to whether the submittal meets the requirements of the federal NSR regulations as they existed at the time of the ruling in Hall v. EPA, prior to revision on December 31, 2002.
There is no previous version of Nevada Administrative Code (NAC) 445B.22083 (Construction, major modification or relocation of plants to generate electricity using steam produced by burning of fossil fuels) approved, or submitted for approval, into the Nevada SIP.
Submitted DAQM sections 0, 11, 12, 52.8, 58, and 59 represent a
comprehensive revision to Clark County's NSR program and are intended
to satisfy the requirements under both part C (prevention of
significant deterioration)(PSD) and part D (nonattainment new source review) of
[[Page 31058]]
title I of the Act as those parts relate to permitting of major new
sources or major modifications as well as provide for a minor source
permitting program as required under section 110(a)(2)(C) of the Act.
Submitted DAQM section 0 (Definitions) consists of definitions of all
terms relating to new sources and modifications to existing sources of
air pollution. As is the case for existing SIP section 1 (Definitions),
DAQM section 0 also contains numerous definitions of terms used in
prohibitory rules not related to NSR. Some of these prohibitory rules
are already approved into the SIP (e.g., SIP section 53 (Oxygenated
Gasoline Program)) while others are expected to be approved into the
SIP in the near future (e.g., DAQM section 54 (Cleaner Burning
Gasoline) and DAQM sections 90 through 94 (related to various fugitive
dust sources)). Therefore, with respect to submitted DAQM section 0, we
are proposing to approve the entire rule, not just those definitions
related to NSR, however, as explained later in this notice, we are
proposing to retain in the SIP certain definitions from existing SIP
section 1 because they are needed for various existing SIP rules unaffected by this action.
DAQM section 11 sets forth the current national ambient air quality
standards (NAAQS). DAQM section 12 sets forth the source permitting
requirements, including those related to applicability, control
technology (i.e., Lowest Achievable Emission Rate (LAER) or Best
Available Control Technology (BACT)), offsets, and public notice. DAQM
subsection 52.8 contains offset requirements for new or modified
gasoline dispensing facilities whose annual throughput is more than
3.6 million gallons of gasoline per year. DAQM section 58 establishes
procedures for the creation, banking, and use of emission reduction
credits, and DAQM section 59 establishes offset requirements for new or
modified sources. NAC 445B.22083 is a State regulation prohibiting the
construction of major new or modified sources under exclusive State
jurisdiction in the nonattainment areas within Clark County. The TSD has more information about these rules.
B. EPA's Evaluation and Action
SIP Revision Procedural Requirements
The Act requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission to EPA. Sections 110(a)(2) and 110(l) of the Act provide that each implementation plan or revision submitted by a State must be adopted after reasonable notice and public hearing. Section 172(c)(7) of the Act provides that plan provisions for nonattainment areas shall meet the applicable provisions of section 110(a)(2).
DAQM held a public hearing on October 7, 2003 to entertain public comment on revisions to the following local air pollution regulations: sections 0, 11, 12, 52.8, 58 and 59. Notice for that hearing was provided by advertisement in a newspaper of general circulation in the applicable area on three separate days in September 2003. On October 7, 2003, the amended rules were adopted by DAQM and submitted to the State. On October 23, NDEP submitted the amended rules to EPA for approval as a revision to the Nevada SIP. We find that this process satisfies the procedural requirements under sections 110(a)(2), 110(l) and 172(c)(7) of the Act.
With respect to NAC 445B.22083, the Nevada SEC held a public hearing on March 3, 1994 to entertain public comment on the submitted rule. Notice for that hearing was provided by advertisement in a newspaper of general circulation in the applicable area on three separate days in February 1994. On March 3, 1994, the Nevada SEC adopted the submitted rule, which was subsequently renumbered in 2002 to its current codification as NAC 445B.22083. On November 20, 2003, NDEP submitted NAC 445B.22083 to EPA for approval as a revision to the Nevada SIP. We find that this process satisfies the procedural requirements under sections 110(a)(2), 110(l), and 172(c)(7) of the Act.
General Nonattainment and PSD Requirements
We have evaluated DAQM's NSR SIP submittal described above against the applicable requirements of section 110 and parts C and D of (title I) of the Act and the implementing regulations at 40 CFR 51.160 through 51.166 (July 1, 2002). We also relied upon the following materials in the review of this submittal: General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (see 57 FR 13498, April 16, 1992), EPA's Emission Offset Interpretive Ruling (40 CFR part 51, appendix S), and EPA's policy document entitled, ``Improving Air Quality with Economic Incentive Programs,'' that was published in January 2001.
We note that, on December 31, 2002, EPA published a final notice revising regulations governing NSR programs (``Federal NSR regulations'') mandated by parts C and D of title I of the Act. See 67 FR 80186. These revisions include changes in the NSR applicability requirements for modifications to allow sources more flexibility to respond to rapidly changing markets and to plan for future investments in pollution control and prevention technologies. We selected March 3, 2003 as the effective date for our revision to the Federal NSR regulations. Normally, we would be evaluating the Clark County NSR SIP submittal on the basis of the current Federal NSR regulations, which would include these most recent revisions, but in light of the unusual circumstances surrounding EPA's review process for the Clark County NSR rules, i.e., court vacature of a fullyapproved set of NSR rules, we have not evaluated the submitted NSR rules for consistency with the revised Federal NSR regulations but have evaluated them instead against the Federal NSR regulations that were in effect when the rules were being revised to address issues raised by EPA in the wake of the Hall decision. Like other State and local agencies, Clark County must adopt and submit revisions to its SIPapproved NSR rules implementing the minimum program requirements set forth in the revised Federal NSR regulations no later than January 2, 2006. See 67 FR 80186, at 80240 (December 31, 2002). Given this approach to our evaluation of the DAQM NSR submittal, the reader should refer to the 2002 version of 40 CFR parts 51 and 52 (revised as of July 1, 2002) where citations are made herein to the those parts of the CFR.
Nonattainment NSR Requirements
The Act requires all States with nonattainment areas to submit, by
November 15, 1992, nonattainment NSR provisions that comply with part D
(of title I) of the Act and the related implementing regulations. The
Las Vegas Valley (hydrographic area
First, it should be noted that, pursuant to State law, the State of
Nevada, not a local air or health district, has jurisdiction over
plants which generate electricity by using steam produced by the
burning of fossil fuel within the State of Nevada. The applicable State law, now codified in Nevada Revised Statutes (NRS)
[[Page 31059]]
445B.500, was approved by EPA as a SIP revision in 1980 as NRS
445.546(4). See 45 FR 46384 (July 10, 1980). Thus, within Clark County,
the State, not DAQM, has jurisdiction over such plants that are
located, or that will be constructed, in that county (including the
nonattainment area). This exclusion is reflected in submitted DAQM section 12, subsection 12.1.3.2.
The Nevada State Environmental Commission (SEC), the administrative body responsible for the air quality regulations implemented by NDEP, has not adopted a preconstruction permit program that complies with part D of the Act (i.e., Nonattainment NSR) for the nonattainment area within Clark County. Normally, because NDEP has jurisdiction over a particular category of stationary sources in a nonattainment area (i.e., Las Vegas Valley), the State would be required to adopt and submit a Nonattainment NSR program for new major sources or major modifications within the applicable source category in the nonattainment area. However, EPA is not requiring the State to submit Nonattainment NSR rules for Las Vegas Valley because the Nevada SEC adopted a regulation (NAC 445B.22083) that prohibits new power plants or major modifications to existing power plants under State jurisdiction within the Las Vegas Valley nonattainment area, and NDEP has submitted that regulation to EPA as a revision to the SIP. We propose to approve this regulation into the Nevada SIP to resolve the regulatory gap that would otherwise exist in connection with NSR for sources under NDEP jurisdiction within the nonattainment area of Clark County.
With respect to the DAQM NSR submittal, we have concluded that it meets the applicable Nonattainment NSR requirements on the basis of the following findings:
1. The DAQM NSR submittal provides for calculation of emissions offsets based on the same emissions baseline used in the demonstration of reasonable further progress as required by section 173(a)(1)(A) of the Act (see DAQM section 0, ``emission reduction credit'' and ``baseline emissions''), provides for emissions offsets to be obtained when the construction permit for a new or modified source is issued and to be in effect by the time the new or modified source commences operation as required by section 173(c)(1) of the Act (see DAQM section 59, subsection 59.4.2.6), provides for emissions increases from new major sources or major modifications to be offset by real reductions in actual emissions as required by section 173(c)(1) of the Act (see DAQM section 0, ``emission reduction credit (ERC),'' and specifically paragraph (b) of that definition: ``Section 58 emission reduction credit'', and DAQM section 59, subsection 59.1.5), prohibits emissions reductions otherwise required by the Act from being used for NSR offset purposes as required by section 173(c)(2) of the Act (see DAQM section 0, ``surplus,'' and DAQM section 59, subsection 59.4.2.1), and provides for appropriate limitations on ``prior shutdown'' emission reduction credits as required in 40 CFR 51.165(a)(3)(ii)(C) (see DAQM section 58, subsection 58.3.2.5.3).
2. The DAQM NSR submittal provides for an analysis of alternative sites, sizes, production processes, and environmental control techniques as a prerequisite to issuing construction permits to new major sources or major modifications of nonattainment pollutants as required by section 173(a)(5) of the Act (see DAQM section 12, subsection 12.1.4.1(k)), provides for a definition of ``stationary source'' that includes certain internal combustion engines as required by section 302(z) of the Act (see DAQM section 0, ``stationary source''), and provides for a demonstration that all other major stationary sources under the same ownership as the proposed source are in compliance with the Act as required by section 173(a)(3) of the Act (see DAQM section 12, subsection 12.8.2(b)).
3. The DAQM NSR submittal provides for opportunities for, and due consideration of, public comment as required by 40 CFR 51.161 and provides for substantive requirements for new or modified minor sources as required in 40 CFR 51.160 through 51.164 (see the pollutantspecific requirements in DAQM section 12, subsection 12.2 and the notice and public hearing requirements in DAQM section 12, subsections 12.3.2, 12.3.3, and 12.3.4).
4. The DAQM NSR submittal provides for appropriate stack height limitations as required in 40 CFR 51.118(a) (see DAQM section 12, subsection 12.5.4), provides for appropriate review of a source or modification which becomes major due to a relaxation in a federally enforceable limit as required in 40 CFR 51.165(a)(5)(ii) (see DAQM section 0, ``major modification'' and ``stationary source''), provides for additional requirements for any new major source or major modification that may have an impact on visibility in any mandatory Class I Federal Area as required in 40 CFR 51.307(b)(2) (see DAQM section 12, subsection 12.12), provides for appropriate consideration of fugitive emissions as required in 40 CFR 51.165(a)(1)(iv)(C) (see DAQM section 0, paragraph (b)(1) under ``stationary source''), and provides for application of the Lowest Achievable Emission Rate (LAER) on all new major sources and major modifications of nonattainment pollutants as required in section 173(a)(2) of the Act (see DAQM section 12, subsections 12.2.2.2, 12.2.4.2, and 12.2.23.2 for PM10, and subsections 12.2.7.3 and 12.2.9.3 for CO).
5. The DAQM NSR submittal provides for, as required under subpart 3 of part D of title I of the Act, appropriate thresholds for major sources and major modifications in ``serious'' CO nonattainment areas (see DAQM section 0, ``stationary source'' and ``major modification'') in which stationary sources are not significant contributors to ambient CO levels (see EPA's proposed finding related to the impact of stationary sources on ambient CO levels in Las Vegas Valley in 68 FR 4141, at 4154 (January 28, 2003)), and provides for an appropriate offset ratio (see DAQM section 59, subsection 59.1.4, table 59.1.2).
6. The DAQM NSR submittal provides for, as required under subpart 4 of part D of title I of the Act, appropriate thresholds for major sources and major modifications in ``serious'' PM10 nonattainment areas (see DAQM section 0, ``stationary source'' and ``major modification'') in which PM10 precursors (e.g., oxides of nitrogen, sulfur dioxide, and volatile organic compounds) do not contribute significantly to PM10 levels which exceed the standards in the area (see EPA's proposed finding related to the impact of PM10 precursors in Las Vegas Valley in 68 FR 2954, at 2958 (January 22, 2003)), and provides for an appropriate offset ratio (see DAQM section 59, subsection 59.1.4, table 59.1.2).
The TSD provides additional information on our evaluation of the DAQM NSR submittal relative to Nonattainment NSR requirements. PSD NSR Requirements
Part C of title I of the Act contains the provisions, including
preconstruction permit requirements for new major sources or major
modifications, for the prevention of significant deterioration (PSD) of
air quality in areas designated as ``attainment'' or ``unclassifiable''
for the NAAQS. EPA's regulations for PSD permit programs are found in
40 CFR 51.166 and 40 CFR 52.21. Except for CO and PM10 in Las Vegas
Valley (hydrographic area
EPA offers States (and local air districts) two mechanisms by which to
[[Page 31060]]
administer PSD permitting programs. First of all, EPA may delegate the
PSD permitting authority of 40 CFR 52.21 to a State or air district.
For instance, EPA has provided a partial delegation of authority to
NDEP to administer the Federal PSD program (set forth in 40 CFR 52.21).
See 68 FR 52837 (September 8, 2003). Thus, NDEP and EPA now share
responsibility for administering the PSD program as it relates to major
new, or major modifications at, plants which generate electricity by
using steam produced by the burning of fossil fuel in Clark County
(note that, in the nonattainment portion of Clark County (Las Vegas
Valley), such new or modified plants are prohibited under NAC 445B.22083).
Alternatively, a State or air district may develop its own PSD program meeting the requirements of 40 CFR 51.166, and submit these rules for inclusion in the applicable SIP. The DAQM NSR submittal has been submitted for EPA approval under 40 CFR 51.166 as well as the nonattainment NSR provisions discussed in the previous subsection of this notice. With respect to the DAQM NSR submittal, we have concluded that it meets the applicable PSD NSR requirements on the basis of the following findings:
1. The DAQM NSR submittal provides for implementation of best
available control technology (BACT) for new major sources or major
modifications as required in section 40 CFR 51.166(j) (see DAQM section
12, subsections 12.2.3.2, 12.2.4.2, and 12.2.5.2 (PM10); subsections
12.2.8.2, 12.2.9.3, and 12.2.10.2 (CO); subsections 12.2.11.2,
12.2.12.3, and 12.2.13.2 (volatile organic compounds (VOC)); subsections 12.2.14.4 and 12.2.15.2 (oxides of nitrogen
(NO
2. The DAQM NSR submittal provides for an appropriate air quality analysis, including preapplication air monitoring and post
construction monitoring, as required in 40 CFR 51.166(m) (see DAQM
section 12, subsections 12.2.4.4, 12.2.4.5, 12.2.5.4, and 12.2.5.5 (PM
10); subsections 12.2.9.2, 12.2.10.4, and 12.2.10.5 (CO); subsections
12.2.12.2, 12.2.13.4, and 12.2.13.5 (VOC); subsections 12.2.14.3,
12.2.15.4 and 12.2.15.5 (NO
3. The DAQM NSR submittal establishes the appropriate maximum
allowable ambient air increments (see DAQM section 12, subsections
12.2.3.5, 12.2.4.6, and 12.2.5.6 (PM10); subsections 12.2.14.3 and
12.2.15.6 (NO
4. The DAQM NSR submittal provides for completion of appropriate
additional impact analyses related to visibility, soils, and vegetation
and appropriate additional air quality impact analysis related to
general land use development as required in 40 CFR 51.166(o) (see DAQM
section 12, subsections 12.2.4.7 and 12.2.5.7 (PM10); subsections
12.2.9.2 and 12.2.10.6 (CO); subsections 12.2.12.2 and 12.2.13.6 (VOC);
subsections 12.2.14.3 and 12.2.15.7 (NO
5. The DAQM NSR submittal provides for the appropriate Class II PSD classification for all areas in Clark County based on their adopted maximum allowable ambient air increments discussed above.
6. The DAQM NSR submittal provides for protection of air quality
related values (including visibility) in Class I areas as required in
40 CFR 51.166(p) (see DAQM section 12, subsections 12.2.4.6(b),
12.2.4.8, 12.2.5.6(b), and 12.2.5.8 (PM10); subsections 12.2.9.2 and
12.2.10.7 (CO); subsections 12.2.12.2 and 12.2.13.7 (VOC); subsections
12.2.14.3, 12.2.15.6(b), and 12.2.15.8 (NO
7. The DAQM NSR submittal provides for agency and public participation as required in 40 CFR 51.166(p)(1) and 51.166(q) (see DAQM section 12, subsections 12.3.1.2(b), 12.3.2, and 12.4.4)).
The TSD provides additional information on our evaluation of the DAQM NSR submittal relative to PSD NSR requirements.
Section 110(l) of the Act
Section 110(l) of the Act prohibits EPA from approving any revision of a SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. For attainment pollutants in attainment areas, our evaluation considers first whether a submitted SIP revision would be as stringent as the provision in the existing applicable implementation plan that it would supercede. If so, then no further analysis is generally required. But, even if we cannot conclude that a SIP revision is as stringent as the corresponding provision in the applicable implementation plan, we may still approve the revision so long as it can be shown that the revision would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act.
For nonattainment pollutants in nonattainment areas, one court has ruled that our evaluation must extend beyond the issue of whether the submitted SIP revision is as stringent as the existing SIP provision that it would supercede and consider the submitted SIP revision in light of current ambient air quality and nonattainment planning requirements within the applicable nonattainment area. See Hall v. EPA, 273 F.3d 1146 (9th Cir. 2001). No other court has yet decided this issue. In nonattainment areas too, we may approve SIP relaxations under section 110(l) so long as they would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act (such as section 193 of the Act, discussed in the next section of this TSD).
Based on the detailed pollutantbypollutant evaluation we provide
in the TSD (and summarize herein), which includes an evaluation of the
incremental SIP strengthenings and relaxations in the context of
pollutant emission sources, trends, air quality conditions, and
planning requirements, we conclude that approval of the DAQM NSR
submittal (and thereby replacement or supercession of the existing SIP
NSR rules) would not interfere with any applicable requirement concerning attainment and reasonable further
[[Page 31061]]
progress, or an other applicable requirement of the Act.
Most of the significant differences between the two NSR programs (SIPapproved versus the DAQM NSR submittal) are pollutantspecific rather than of general applicability. There are, however, two differences of general applicability that warrant discussion here: the emissions test used to define a stationary source modification and the basis for the minor (referred to as ``nonmajor'' under the submitted DAQM NSR program) source baseline date.
First, the DAQM NSR submittal would replace a ``potentialto potential'' test with an ``actualtopotential'' test for evaluating proposed stationary source modifications (see existing SIP section 1, ``modification'' (1.52)). As a result, the existing SIP rule fails to require NSR review for modifications at major sources, which involve a significant net emissions increase in actual emissions, but no increase in the potential to emit. In contrast, the DAQM NSR submittal provides for the more protective ``actualtopotential'' test for evaluating proposed modifications at major sources. This would represent a general strengthening of the NSR program compared to the existing SIP NSR program. For additional Agency discussion on the relative stringency of these two different tests for determining applicability of requirements for modifications, see our final rule on recent NSR revisions at 67 FR 80186 at 8020480206 (December 31, 2002).
Second, through the definition of ``baseline concentration'' in SIP section 1, the existing SIP established a uniform minor source baseline date of August 7, 1977 in the various PSD baseline areas (which derive from the areas designated as attainment or unclassifiable by EPA under section 107(d) of the Act) within Clark County. This definition is consistent with EPA's 1978 final PSD regulations. However, the court in the Alabama Power decision set aside EPA's definition (from the 1978 PSD regulations) in favor of the statutory definition of the term (see section 169(4) of the Act), which links the baseline concentration to the ambient concentration that exists at the time of the first PSD application in a given area. See Alabama Power Co. v. Costle, 636 F.2d 323, at 375376 (D.C. Cir. 1979). EPA's PSD regulations have long since been revised to reflect the court's holding (see 40 CFR 51.166(b)(13)).
While the definition of ``baseline concentration'' in DAQM section
0 is consistent with the current EPA definition, EPA approval of this
definition to supercede the SIP definition would have the effect of
untriggering (completely) the minor source baseline dates for PM and
SO
For those areas in which a source or modification has submitted a
complete PSD application or would have a significant impact, EPA
approval would have the effect of establishing a new minor source
baseline date for PM or SO
Arguably, untriggering (or reestablishing new, more recent) minor source baseline dates represents a relaxation because a greater level of air quality degradation would be allowed compared to a regulatory scheme in which the baseline date and concentration is set uniformily for all areas at August 7, 1977. However, this particular type of change aligns the Clark County NSR program with the statute (see section 169(4) of the Act) and thus, can also be viewed as a correction rather than as a relaxation. We conclude, therefore, that approval of the DAQM NSR submittal would serve the Congressional purposes described in the Alabama Power decision, and that the untriggering (or re setting) of PSD minor source baseline dates in Clark County under these circumstances would be consistent with section 110(l) of the Act. Section 110(l) prohibits interference with any applicable requirement of the Act, and in this case the SIP revision will bring the Clark County program in line with the requirements of the Act as interpreted by the court. Thus, EPA concludes that approval is consistent with section 110(l). We also note that our approval of the DAQM NSR submittal would have little practical effect on the PSD program as it is being administered currently by DAQM since DAQM has not been administering the program under the assumption that there is a uniform countywide minor source baseline date (i.e., as provided for in the existing SIP NSR program) but rather under the assumption that the minor source baseline date is triggered on an areabyarea basis by the submittal of the first complete PSD application in a given area.
Carbon Monoxide (CO). As noted previously, a subregion within
Clark County, the Las Vegas Valley (hydrographic area
Approval of the DAQM NSR submittal (and thereby replacement or
supercession of the existing SIP NSR rules) would represent an
incremental relaxation in the control technology requirement for new or
modified nonmajor CO sources within Las Vegas Valley (i.e., from LAER
to BACT), but would also represent an incremental strengthening by
imposing more stringent offset requirements. The offset requirements
would be strengthened in two respects: the threshold for the offset
requirement would be lowered to 70 tons per year (tpy) from 100 tpy and
the offset ratio would be increased to 2:1 from 1:1. Given (1) that the
more inclusive ``actualtopotential test'' would replace the
``potentialtopotential'' test for evaluating source modifications;
(2) that the incremental relaxation in the control technology
requirement would replace the highest level of control (LAER) with the
next highest (BACT) level of control and this incremental difference is
offset by an incremental strengthening in the offset requirement; (3)
that DAQM section 12 prohibits new or modified CO stationary sources
with potentials to emit (PTEs) greater than 50 tpy in the downtown CO
``hot spot'' area; (4) that the Las Vegas Valley ``serious area'' CO
attainment plan assumes growth in nonmajor stationary CO sources
(i.e., does not assume that the CO emissions from nonmajor sources would be offset), concludes that stationary sources are
[[Page 31062]]
not a significant contributor to CO levels in the valley, and does not
rely on stationary source controls to demonstrate attainment; and (5)
that EPA has proposed approval of the CO attainment demonstration based
on onroad motor vehicle controls, we have concluded that the
supercession of the existing SIP NSR program by the submitted NSR
program would not interfere with the CO attainment strategy or any other applicable requirement of the Act.
Particulate Matter (PM10). As noted previously, Las Vegas Valley
(hydrographic area
In general, approval of the DAQM NSR submittal would strengthen the SIP by updating the PM increments in terms of PM10 (rather than total suspended particulate (TSP)). EPA replaced the PM NAAQS, measured as TSP, with new PM NAAQS, measured as PM10, in 1987. See 52 FR 24634 (July 1, 1987). With respect to Las Vegas Valley, approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would represent an incremental relaxation in the control technology requirement for new or modified nonmajor PM10 sources (i.e., from the most stringent level of control, LAER to the next highest level of control, BACT), and in the offset requirement (from ``federal'' to ``local'' offsets) for new or modified sources with PTEs from 15 tpy (as adjusted from 25 tons TSP) to 70 tpy, but it would also represent an incremental strengthening by establishing a more stringent offset ratio (2:1) to replace the current ratio (1:1). Given (1) that the more inclusive ``actualtopotential test'' would replace the ``potentialtopotential test'' for evaluating source modifications; (2) that the offsetting effects of these changes to the NSR program would ensure a negligible effect on PM10 emissions; (3) that the submitted NSR program conforms to that PM10 attainment plan in that the plan assumes BACT rather than LAERlevel of control for new or modified nonmajor sources in Las Vegas; (4) that the Las Vegas Valley ``serious area'' PM10 attainment plan concludes that stationary sources are not a significant contributor to PM10 NAAQS violations in the valley, and does not rely on stationary source controls to demonstrate attainment; and (5) that EPA has proposed approval of the demonstration based on fugitive dust controls, we have concluded that the supercession of the existing SIP NSR program by the submitted NSR program would not interfere with the PM10 attainment strategy or any other applicable requirement of the Act.
With respect to Apex Valley, the incremental relaxation in the control technology requirement (from LAER to BACT) and the elimination of any offset requirement, when viewed in isolation, could appear to potentially interfere with attainment of the PM10 NAAQS in that area given the monitored incidence of PM10 NAAQS violations in the area. However, EPA recognizes that Clark County is in the process of extending additional regulatory controls to existing PM10 sources in the Apex Valley and to developing a Natural Events Action plan to address those PM10 NAAQS violations that result from high wind events that occur there, and in that context, EPA believes that the incremental relaxation in requirements for new or modified stationary sources would not interfere with attainment of the PM10 NAAQS in Apex Valley since the attainment strategy, by necessity, will focus on existing sources and highwinddriven fugitive dust.
Ozone. Las Vegas Valley (hydrographic area
``attainment'' for the (onehour) ozone NAAQS in 1986. See 51 FR 41788
(November 19, 1986). Since then, peak ozone levels have remained
relatively constant at 0.09 parts per million (ppm) to 0.10 ppm, but
peak levels in recent years have approached the onehour standard of
0.12 ppm. The current (onehour) ozone NAAQS designation for Clark County is unclassifiable/attainment. See 40 CFR 81.329.
Approval of the DAQM NSR submittal (and thereby replacement or
supercession of the existing SIP NSR rules) would represent an
incremental relaxation in the control technology requirement for new or
modified nonmajor VOC sources within Las Vegas Valley (i.e., from LAER
to BACT), however, the DAQM NSR submittal extends LAER level of control
to new or modified major VOC sources proposed for certain locations
adjacent to, and generally upwind of Las Vegas Valley (i.e., Eldorado
Valley and Ivanpah Valley. In these adjacent areas, the applicable
control technology requirement under the existing SIP NSR rules is
BACT. Given that the 1980'sera ozone attainment strategy relies on
several important VOC regulatory elements that would not be affected by
our action on the NSR program, e.g., stationary source prohibitory SIP
rules (i.e., SIP sections 33, 50, 51, 52, and 60) and motor vehicle
tailpipe and fuel regulations promulgated by EPA under title II of the
Act, and that the incremental relaxation in the control technology
requirement for new or modified sources of VOC in Las Vegas Valley
would replace the highest level of control (LAER) with the next highest
level of control (BACT) and would be partially offset by an incremental
strengthening in that requirement in upwind areas, we have concluded
that the approval of the DAQM NSR submittal (and thereby replacement or
supercession of the existing SIP NSR rules) would not interfere with
continued attainment of the onehour ozone NAAQS or any other
applicable requirement of the Act. We note that Clark County has been
designated as nonattainment for the eighthour ozone NAAQS, which EPA
established in 1997 (62 FR 38856, July 19, 1997) and which will in time
replace the existing (onehour) ozone NAAQS. 69 FR 23858, 2391923920
(April 30, 2004). Additional changes to the DAQM NSR program will be required on a schedule
[[Page 31063]]
to be established by EPA in a final rule implementing the eighthour ozone NAAQS. See 69 FR 23951, 2398523986 (April 30, 2004).
Nitrogen Dioxide (NO
As a general matter, approval of the DAQM NSR submittal would
strengthen the SIP by establishing NO
Sulfur Dioxide (SO
Approval of the DAQM NSR submittal (and thereby replacement or
supercession of the existing SIP NSR rules) would represent an
incremental relaxation in the control technology requirement for new or
modified SO
Lead. EPA promulgated the NAAQS for lead (Pb) in 1978. See 43 FR 46246 (October 5, 1978). Ambient lead levels collected in Las Vegas Valley during the late 1970's were found to violate the NAAQS. To provide for the attainment and maintenance of the lead NAAQS in the valley, Clark County adopted the State Implementation Plan Revision for Ambient Lead in Las Vegas Valley, Clark County, Nevada (dated February 11, 1980). EPA approved this plan as a SIP revision in 1982. See 47 FR 28374 (June 30, 1982). This lead (Pb) attainment plan predicted attainment of the lead NAAQS prior to 1982 primarily based on the declining lead content of motor vehicle gasoline, and indeed, maximum quarterly concentrations were much less than the NAAQS by the mid 1980's.
In general, the DAQM NSR submittal represents a strengthening of the SIP with respect to lead in those portions of Clark County that lie outside of Las Vegas Valley but an incremental relaxation of the SIP within Las Vegas Valley. However, from the standpoint of continued attainment of the lead NAAQS in Las Vegas Valley, the relaxation of certain NSR requirements for new or modified stationary sources of lead (de minimis exemptions, a BACT control technology requirement rather than LAER, elimination of offsets) would not interfere with continued attainment of the lead NAAQS nor any other requirement of the Act because the incremental relaxation of the control technology requirement is from the highest level of control (LAER) to the next highest level of control (BACT) rather than an elimination of the control technology requirement completely and because the DAQM NSR submittal continues to ensure that permits are not issued to new or modified sources that would cause a violation of the lead NAAQS (see DAQM section 12, subsection 12.2.17.4(c)). Moreover, the overwhelming influence of mobile sources to the historical lead NAAQS violations, which would be unaffected by approval of the DAQM NSR submittal, and the low background lead concentrations further ensure that supercession of the existing NSR SIP program with the submitted NSR SIP program would not interfere with continued attainment of the lead NAAQS or any other requirement of the Act.
Section 193 of the Act
Section 193 of the Act, which was added by Congress in the Clean
Air Act Amendments of 1990, includes a savings clause which provides,
in pertinent part: ``No control requirement in effect, or required to
be adopted by an order, settlement agreement, or plan in effect before
November 15, 1990, in any area which is a nonattainment area for any
air pollutant may be modified after November 15, 1990, in any manner
unless the modification insures equivalent or greater emission
reductions of such air pollutant.'' This section of the Act does not
clearly apply to revisions in NSR programs, but we have evaluated the
DAQM NSR submittal on the assumption that section 193 does apply. NSR
program revisions are inherently difficult to evaluate with respect to
changes in emissions reductions because NSR covers all types of
stationary sources and provides for casebycase evaluations of control
technology requirements whether the applicable requirement is BACT or
LAER (see 40 CFR 51.166(b)(12) and 40 CFR 51.165(a)(1)(xiii)). In the
context of the DAQM NSR submittal, a determination of whether the
submitted NSR program would provide for equivalent or greater [[Page 31064]]
emission reductions relative to the existing SIP NSR program is further
complicated by the comprehensive nature of the changes. The DAQM NSR
submittal represents a wholesale revision affecting the substance,
procedure, and format of the Clark County NSR program. Nevertheless, we
can identify three parameters that most closely link to relative
changes in emissions reductions from new or modified stationary
sources: the test for evaluating source modifications, the control
technology review, and the requirements for offsets, including offset
thresholds, offset ratios, and the other specifications for creation
and use of offsets. As explained below, relaxation in some of these
parameters is offset by countervailing strengthenings in other
parameters with the net result that we can conclude that the submitted
NSR program will provide for equivalent or greater emissions reductions
as the existing SIP NSR program (which predates the 1990 Clean Air Act
Amendments) for the two applicable nonattainment pollutants, CO and PM 10.
Test for Source Modifications. As noted previously, the submitted DAQM NSR program would establish the more inclusive test (``actual to potential'') for evaluating source modifications and thereby replace the existing SIP NSR program's ``potentialtopotential'' test, with the result that a greater number of source modifications would be subject to new source review and the related requirements of BACT or LAER.
Control Technology Requirements. Under the existing SIP NSR program, the highest level of control (LAER) applies to all new or modified sources of CO or PM in the nonattainment area. In contrast, under the submitted DAQM NSR program, the next highest level of control, BACT, applies to new or modified sources of CO and PM with PTEs less than 70 tpy. Under the submitted NSR program, LAER applies at 70 tpy or greater for CO and PM10.
Offsets Requirements. Offsets requirements refer to applicable thresholds, ratios, and specifications such as whether offsets are surplus, permanent, quantifiable and federally enforceable. With respect to offset thresholds, for CO, offsets under the existing SIP NSR program apply to sources or modifications with PTEs greater than 100 tpy, whereas, under the submitted NSR program, offsets apply at 70 tpy. For PM, offsets under the existing SIP NSR program apply to sources or modifications with PTEs greater than 25 tpy (based on TSP, which is roughly equivalent to 15 tpy PM10). The corresponding threshold under the submitted NSR program is 70 tpy of PM10. With respect to offset ratios, for both CO and PM, the existing SIP NSR program establishes a 1:1 ratio whereas the submitted NSR program establishes a more stringent a 2:1 ratio. With respect to specific characteristics of offsets, DAQM section 59 requires that offsets be surplus, permanent, quantifiable and federally enforceable as defined in DAQM section 0. See DAQM section 59, subsection 59.4.2.1, and the related definitions in DAQM section 0. Section 15 does not have any similar requirements for offsets.
Evaluation for Carbon Monoxide. First, as noted above, the submitted program would establish the more inclusive ``actualto potential'' test for evaluating source modifications. Second, the submitted program would establish a lower threshold for triggering offset requirements (70 tpy under the submitted NSR program versus 100 tpy under the existing SIP NSR program), would establish a higher offset ratio (2:1 versus 1:1), and would establish the requirements for creation and use of offsets (surplus, permanent, quantifiable and federally enforceable) that ensure that emissions increases are truly offset. Thus, two of the three parameters strongly support a conclusion that the submitted program would provide equivalent or greater CO emissions reductions relative to the existing SIP NSR program.
One of the three parameters, the control technology requirement, is more stringent for nonmajor sources under the existing SIP NSR program than under the submitted program. The existing SIP NSR program requires LAERlevel of control for nonmajor CO sources whereas the submitted DAQM NSR program requires BACTlevel of control for such sources. The emissions reductions associated with application of LAERlevel of control relative to those associated with application of BACTlevel of control depend upon the type and size of proposed sources or modifications. In some instances, due to the ``topdown'' approach used in BACT analyses, which requires justification for not selecting LAER level of control before evaluating less stringent levels of control, BACT is equivalent to LAER. This ``topdown'' approach for determining BACT is described in detail in Chapter B of EPA's Draft New Source Review Workshop Manual (October 1990). In most other instances, the differences in emissions limitations between the two levels of control are relatively small, particularly in relation to emissions that would otherwise result from an uncontrolled source.
Thus, we have concluded that the CO emissions increase associated with the incremental relaxation associated with the control technology requirement for nonmajor sources, which should be relatively minor given the small difference between emissions limitations under BACT versus LAER in most circumstances, would be more than compensated for by the more inclusive test for source modifications, the lower CO offset threshold, the higher CO offset ratio, and the establishment of other requirements for offsets that ensure that they truly offset emissions from applicable new sources or modifications.
Evaluation for Particulate Matter. As noted above, the submitted DAQM NSR program would establish the more inclusive ``actualto potential'' test for evaluating source modifications.
The second parameter, the control technology requirement (LAER), is more stringent for nonmajor sources under the existing SIP NSR program than under the submitted program (BACT). As described above for CO, however, the difference between the emissions reductions associated with application of LAERlevel of control relative to those associated with application of BACTlevel of control typically ranges from minor to none at all.
With respect to requirements for PM offsets, the differences between the existing SIP and submitted NSR programs are particularly difficult to evaluate. On one hand, the existing SIP NSR program has established a lower offset threshold at 25 tpy of TSP (which is roughly equivalent to 15 tpy of PM10), compared to 70 tpy of PM10 under the submitted program. On the other hand, the existing program has established a lower offset ratio (1:1 versus 2:1).
Moreover, the ``quality'' of the offsets under the existing program
is lower than that required under the submitted program in two
respects. First, unlike the submitted program, the existing SIP NSR
program does not require that offsets be surplus, permanent,
quantifiable and federally enforceable and thus does not ensure that
increases in emissions are truly offset. Second, the existing SIP NSR
program allows TSP offsets to be used to offset increases in PM
emissions. Depending upon the particle size distribution of those TSP
offsets, it is possible that increases in PM10 emissions under the
existing SIP NSR program would not be offset by PM10 offsets at all.
In other words, a new source that generates particulate matter that is
largely or entirely of the particle size constituting PM10 could be ``offset'' under the existing program
[[Page 31065]]
by another source whose PM emissions are largely or entirely of a
particle size not constituting PM10 but still constituting TSP (TSP
includes particles roughly 30 microns in diameter or less). In such
circumstances, the PM10 emissions increase at the new source would be
at most only partially offset since the ``offsets'' do not, or only
partially, constitute PM10. In contrast, the submitted program, while
it does not require offsets for as many new sources as the existing
program (due to the higher offset threshold), does require that PM10
emissions increases be offset by PM10 offsets, i.e., where offsets are required.
In conclusion, while we recognize the significant tradeoffs in emission reduction potential between the two NSR programs with respect to PM10, we have concluded that the PM10 emissions increase associated with the incremental relaxation associated with the control technology requirement for nonmajor sources and the higher offset threshold would be more than compensated for by the more inclusive test for source modifications, the higher PM10 offset ratio, the establishment of other requirements for offsets that ensure that they truly offset emissions from applicable new sources or modifications, and the requirement to use PM10 offsets rather than TSP offsets, only some fraction of which constitutes PM10.
Conclusion. For the reasons set forth above, we propose to find that the submitted DAQM NSR program insures equivalent or greater emissions reductions of CO and PM10 as compared to the existing SIP NSR program in compliance with section 193 of the Act.
Proposed Partial Approval
Pursuant to section 110(k)(3) of the Act, we propose a partial
approval of the submitted NSR rules. With the exceptions listed in the
following subsection of this notice, we propose approval of the
submitted NSR rules, including DAQM sections 0, 11, 12, 58, and 59 and
NAC 445B.22083, based on our determination that the rules comply with
applicable statutory and regulatory provisions requiring regulation of
stationary sources in general and requiring permit programs for major
stationary sources in particular, including section 110(a)(2)(C) and
parts C and D of title I of the Act. In support of this recommendation,
we have concluded that our approval of the submitted NSR rules (and
thereby replacement or supercession of the existing SIP NSR rules),
i.e., with the partial exception for certain definitions in existing
SIP section 1, complies with section 110(l) of the Act because the
untriggering (or resetting) of the minor source baseline dates for PM
and SO
Proposed Partial Disapproval
We are also proposing a partial disapproval of the DAQM NSR submittal. A discussion of the individual subsections of the submittal that we are proposing to disapprove is provided in the following paragraphs.
1. We propose to disapprove submitted DAQM section 12, subsections 12.2.18 (HAP sources in Clark County) and 12.2.20 (Additional Requirements for Stationary Sources with Beryllium, Mercury, Vinyl Chloride, or Asbestos Emissions in Clark County) to avoid potential confusion or conflict with the Federal N
FOR FURTHER INFORMATION CONTACT Roger Kohn, EPA Region IX, Air
Division, Permits Office (AIR3), at (415) 9723973 or
kohn.roger@epa.gov.
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