ACTION:
Direct final rule.
SUMMARY:
EPA is taking direct final action to delegate the authority to implement and enforce specific national emission standards for hazardous air pollutants (NESHAP) to Clark County, Nevada. The preamble outlines the process that Clark County will use to receive delegation of any future NESHAP, and identifies the NESHAP categories to be delegated by today's action. EPA has reviewed Clark County's request for delegation and has found that this request satisfies all of the requirements necessary to qualify for approval. Thus, EPA is hereby granting Clark County the authority to implement and enforce the unchanged NESHAP categories listed in this rule.
DATES:
This rule is effective on January 3, 2011 without further notice, unless EPA receives adverse comments by December 3, 2010. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.
ADDRESSES:
Submit comments, identified by docket number EPA-R09-OAR-2010-0814, by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov . Follow the on-line instructions.
2. E-mail: steckel.andrew@epa.gov .
3. Mail or Deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.
Docket: The index to the docket for this action is available electronically at http://www.regulations.go v and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location ( e.g., copyrighted material), and some may not be publicly available in 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:
Mae Wang, EPA Region IX, (415) 947-4124, wang.mae@epa.gov .
SUPPLEMENTARY INFORMATION:
Throughout this document, “we,” “us,” and “our” refer to EPA.
Table of Contents
I. Background
A. Delegation of NESHAP
B. Clark County Delegation Request
II. EPA Action
A. Delegation to Clark County for Specific Standards
B. Clark County's Delegation Mechanism for Future Standards
C. Public Comment and Final Action
III. Statutory and Executive Order Reviews
I. Background
A. Delegation of NESHAP
Section 112(l) of the Clean Air Act, as amended in 1990 (CAA or the Act), authorizes EPA to delegate to State or local air pollution control agencies the authority to implement and enforce the standards set out in 40 CFR part 63, National Emission Standards for Hazardous Air Pollutants for Source Categories. On November 26, 1993, EPA promulgated regulations, codified at 40 CFR part 63, Subpart E (hereinafter referred to as “Subpart E”), establishing procedures for EPA's approval of state rules or programs under section 112(l) ( see 58 FR 62262). Subpart E was later amended on September 14, 2000 ( see 65 FR 55810).
Any request for approval under CAA section 112(l) must meet the approval criteria in 112(l)(5) and 40 CFR part 63, Subpart E. To streamline the approval process for future applications, a State or local agency may submit a one-time demonstration that it has adequate authorities and resources to implement and enforce any CAA section 112 standards. If such demonstration is approved, then the State or local agency would no longer need to resubmit a demonstration of these same authorities and resources for every subsequent request for delegation of CAA section 112 standards. However, EPA maintains the authority to withdraw its approval if the State does not adequately implement or enforce an approved rule or program.
B. Clark County Delegation Request
On July 13, 1995, EPA approved Clark County's program for accepting delegation of CAA section 112 standards that are unchanged from the Federal standards as promulgated ( see 60 FR 36070). The approved program reflects an adequate demonstration by Clark County of general resources and authorities to implement and enforce CAA section 112 standards. However, formal delegation for an individual standard does not occur until Clark County obtains the necessary regulatory authority to implement and enforce that particular standard, and EPA approves Clark County's formal delegation request for that standard.
Clark County informed EPA that it intends to obtain the regulatory authority necessary to accept delegation of CAA section 112 standards by incorporating the standards into local codes of regulation. The details of this delegation mechanism are set forth in a Memorandum of Agreement (MOA) between Clark County and EPA, and are available for public inspection at the U.S. EPA Region IX office.
On August 9, 2010, the Clark County Department of Air Quality and Environmental Management requested delegation for several individual CAA section 112 standards that have been incorporated by reference into the Clark County Air Quality Regulations. The standards that are being delegated by today's action are listed in the table at the end of this rule.
II. EPA Action
A. Delegation to Clark County for Specific Standards
After reviewing Clark County's request for delegation of various NESHAP, EPA has determined that this request meets all the requirements necessary to qualify for approval under CAA section 112(l) and 40 CFR 63.91. Accordingly, Clark County is granted the authority to implement and enforce the requested NESHAP. These delegations will be effective on January 3, 2011. A table of the NESHAP categories that will be delegated to Clark County is shown at the end of this rule. Although Clark County will have primary implementation and enforcement responsibility, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112. In addition, EPA does not delegate any authorities that require implementation through rulemaking in the Federal Register , or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112.
After a State or local agency has been delegated the authority to implement and enforce a NESHAP, the delegated agency becomes the primary point of contact with respect to that NESHAP. Pursuant to 40 CFR sections 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA Region IX waives the requirement that notifications and reports for delegated standards be submitted to EPA as well as to Clark County.
In its August 9, 2010, request, Clark County included a request for delegation of the regulations implementing CAA section 112(i)(5), codified at 40 CFR part 63, Subpart D. These requirements apply to State or local agencies that have a permit program approved under title V of the Act (see 40 CFR 63.70). Clark County received final interim approval of its title V operating permits program on July 13, 1995 (see 60 FR 36070). State or local agencies implementing the requirements under Subpart D do not need approval under section 112(l). Therefore, EPA is not taking action to delegate 40 CFR part 63, Subpart D to Clark County.
Clark County also included a request for delegation of the regulations implementing CAA sections 112(g) and 112(j), codified at 40 CFR part 63, Subpart B. These requirements apply to major sources only, and need not be delegated under the section 112(l) approval process. When promulgating the regulations implementing section 112(g), EPA stated its view that “the Act directly confers on the permitting authority the obligation to implement section 112(g) and to adopt a program which conforms to the requirements of this rule. Therefore, the permitting authority need not apply for approval under section 112(l) in order to use its own program to implement section 112(g)” ( see 61 FR 68397). Similarly, when promulgating the regulations implementing section 112(j), EPA stated its belief that “section 112(l) approvals do not have a great deal of overlap with the section 112(j) provision, because section 112(j) is designed to use the title V permit process as the primary vehicle for establishing requirements” ( see 59 FR 26447). Therefore, State or local agencies implementing the requirements under sections 112(g) and 112(j) do not need approval under section 112(l). As a result, EPA is not taking action to delegate 40 CFR part 63, Subpart B to Clark County.
In its delegation request, Clark County also included a request for delegation of 40 CFR part 63, Subpart C. Subpart C contains changes to the Federal list of hazardous air pollutants established at CAA section 112(b)(1) and does not contain any authorities delegable to State, local, or tribal agencies. Therefore, EPA is not taking action to delegate 40 CFR part 63, Subpart C to Clark County.
B. Clark County's Delegation Mechanism for Future Standards
Today's document serves to notify the public of the details of Clark County's procedure for receiving delegation of future NESHAP. As set forth in the MOA, Clark County intends to incorporate by reference, into local codes of regulation, each newly promulgated NESHAP for which it intends to seek delegation. Clark County will then submit a letter to EPA Region IX, along with proof of regulatory authority, requesting delegation for each individual NESHAP. Region IX will respond in writing that delegation is either granted or denied. If a request is approved, the delegation of authorities will be considered effective upon the date of the response letter from Region IX. Periodically, EPA will publish in the Federal Register a listing of the standards that have been delegated. Although EPA reserves its right, pursuant to 40 CFR section 63.96, to review the appropriateness of any future delegation request, EPA will not institute any additional comment periods on these future delegation actions. Any parties interested in commenting on this procedure for delegating future unchanged NESHAP should do so at this time.
C. Public Comment and Final Action
As authorized in section 112(l)(5) of the Act, EPA is approving the submitted delegation request because we believe it fulfills all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register publication, we are simultaneously proposing approval of the same submitted request. If we receive adverse comments by December 3, 2010, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on January 3, 2011.
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
III. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve delegation requests that comply with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7412(l); 40 CFR 63.91(b). Thus, in reviewing delegation submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• 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 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the delegations are not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
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 action 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).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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 63
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
Authority:
This action is issued under the authority of Section 112 of the Clean Air Act, as amended, 42 U.S.C. Section 7412.
Dated: October 5, 2010.
Deborah Jordan,
Director, Air Division, Region IX.
Title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows:
PART 63—[AMENDED]
1. The authority citation for Part 63 continues to read as follows:
Authority:
42 U.S.C. 7401, et seq.
Subpart E—Approval of State Programs and Delegation of Federal Authorities
2. Section 63.99 is amended by revising the table in paragraph (a)(29)(i) to read as follows:
§ 63.99
(a) * * *
(29) * * *
(i) * * *
Delegation Status for Part 63 Standards—Nevada
Subpart
Description
NDEP 1
Washoe 2
Clark 3
A
General Provisions
X
X
X
F
Synthetic Organic Chemical Manufacturing Industry
X
X
G
Synthetic Organic Chemical Manufacturing Industry: Process Vents, Storage Vessels, Transfer Operations, and Wastewater
X
X
H
Organic Hazardous Air Pollutants: Equipment Leaks
X
X
I
Organic Hazardous Air Pollutants: Certain Processes Subject to the Negotiated Regulation for Equipment Leaks
X
X
J
Polyvinyl Chloride and Copolymers Production
X
X
L
Coke Oven Batteries
X
X
M
Perchloroethylene Dry Cleaning
X
X
X
N
Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks
X
X
X
O
Ethylene Oxide Sterilization Facilities
X
X
X
Q
Industrial Process Cooling Towers
X
X
R
Gasoline Distribution Facilities
X
X
X
S
Pulp and Paper
X
X
T
Halogenated Solvent Cleaning
X
X
X
U
Group I Polymers and Resins
X
X
W
Epoxy Resins Production and Non-Nylon Polyamides Production
X
X
X
Secondary Lead Smelting
X
X
Y
Marine Tank Vessel Loading Operations
X
AA
Phosphoric Acid Manufacturing Plants
X
X
BB
Phosphate Fertilizers Production Plants
X
X
CC
Petroleum Refineries
X
X
DD
Off-Site Waste and Recovery Operations
X
X
EE
Magnetic Tape Manufacturing Operations
X
X
GG
Aerospace Manufacturing and Rework Facilities
X
X
HH
Oil and Natural Gas Production Facilities
X
X
II
Shipbuilding and Ship Repair (Surface Coating)
X
X
JJ
Wood Furniture Manufacturing Operations
X
X
KK
Printing and Publishing Industry
X
X
X
LL
Primary Aluminum Reduction Plants
X
X
MM
Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills
X
X
OO
Tanks—Level 1
X
X
PP
Containers
X
X
QQ
Surface Impoundments
X
X
RR
Individual Drain Systems
X
X
SS
Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process
X
X
TT
Equipment Leaks—Control Level 1
X
X
UU
Equipment Leaks—Control Level 2
X
X
VV
Oil-Water Separators and Organic-Water Separators
X
X
WW
Storage Vessels (Tanks)—Control Level 2
X
X
XX
Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste Operations
X
X
YY
Generic MACT Standards
X
X
CCC
Steel Pickling
X
X
DDD
Mineral Wool Production
X
X
EEE
Hazardous Waste Combustors
X
X
GGG
Pharmaceuticals Production
X
X
HHH
Natural Gas Transmission and Storage Facilities
X
X
III
Flexible Polyurethane Foam Production
X
X
JJJ
Group IV Polymers and Resins
X
X
LLL
Portland Cement Manufacturing Industry
X
X
MMM
Pesticide Active Ingredient Production
X
X
NNN
Wool Fiberglass Manufacturing
X
X
OOO
Manufacture of Amino/Phenolic Resins
X
X
PPP
Polyether Polyols Production
X
X
QQQ
Primary Copper Smelting
X
X
RRR
Secondary Aluminum Production
X
X
TTT
Primary Lead Smelting
X
X
UUU
Petroleum Refineries: Catalytic Cracking, Catalytic Reforming, and Sulfur Recovery Units
X
X
VVV
Publicly Owned Treatment Works
X
X
X
XXX
Ferroalloys Production
X
X
AAAA
Municipal Solid Waste Landfills
X
X
CCCC
Manufacturing of Nutritional Yeast
X
X
DDDD
Plywood and Composite Wood Products
X
X
EEEE
Organic Liquids Distribution (non-gasoline)
X
X
X
FFFF
Miscellaneous Organic Chemical Manufacturing
X
X
GGGG
Solvent Extraction for Vegetable Oil Production
X
X
HHHH
Wet-Formed Fiberglass Mat Production
X
X
IIII
Surface Coating of Automobiles and Light-Duty Trucks
X
X
JJJJ
Paper and Other Web Coating
X
X
KKKK
Surface Coating of Metal Cans
X
X
MMMM
Miscellaneous Metal Parts and Products
X
X
NNNN
Large Appliances
X
X
OOOO
Printing, Coating, and Dyeing of Fabrics and Other Textiles
X
X
PPPP
Surface Coating of Plastic Parts and Products
X
X
QQQQ
Wood Building Products
X
X
RRRR
Surface Coating of Metal Furniture
X
X
SSSS
Surface Coating of Metal Coil
X
X
TTTT
Leather Finishing Operations
X
X
UUUU
Cellulose Products Manufacturing
X
X
VVVV
Boat Manufacturing
X
X
WWWW
Reinforced Plastics Composites Production
X
X
X
XXXX
Tire Manufacturing
X
X
YYYY
Stationary Combustion Turbines
X
X
ZZZZ
Stationary Reciprocating Internal Combustion Engines
X
X
X
AAAAA
Lime Manufacturing Plants
X
X
BBBBB
Semiconductor Manufacturing
X
X
CCCCC
Coke Oven: Pushing, Quenching and Battery Stacks
X
X
DDDDD
Industrial, Commercial, and Institutional Boiler and Process Heaters
X
X
EEEEE
Iron and Steel Foundries
X
X
FFFFF
Integrated Iron and Steel
X
X
GGGGG
Site Remediation
X
X
HHHHH
Miscellaneous Coating Manufacturing
X
X
IIIII
Mercury Emissions from Mercury Cell Chlor-Alkali Plants
X
JJJJJ
Brick and Structural Clay Products Manufacturing
X
X
KKKKK
Clay Ceramics Manufacturing
X
X
LLLLL
Asphalt Roofing and Processing
X
X
MMMMM
Flexible Polyurethane Foam Fabrication Operation
X
X
NNNNN
Hydrochloric Acid Production
X
X
PPPPP
Engine Test Cells/Stands
X
X
QQQQQ
Friction Products Manufacturing
X
X
RRRRR
Taconite Iron Ore Processing
X
SSSSS
Refractory Products Manufacturing
X
X
TTTTT
Primary Magnesium Refining
X
WWWWW
Hospital Ethylene Oxide Sterilizers
X
X
X
YYYYY
Electric Arc Furnace Steelmaking Facilities (area sources)
X
X
ZZZZZ
Iron and Steel Foundries Area Sources
X
X
BBBBBB
Gasoline Distribution Bulk Terminals, Bulk Plants and Pipeline Facilities
X
X
CCCCCC
Gasoline Dispensing Facilities
X
X
DDDDDD
Polyvinyl Chloride and Copolymers Production Area Sources
X
X
EEEEEE
Primary Copper Smelting Area Sources
X
X
FFFFFF
Secondary Copper Smelting Area Sources
X
X
GGGGGG
Primary Nonferrous Metals Area Sources—Zinc, Cadmium, and Beryllium
X
X
HHHHHH
Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources
X
X
LLLLLL
Acrylic and Modacrylic Fibers Production Area Sources
X
X
MMMMMM
Carbon Black Production Area Sources
X
X
NNNNNN
Chemical Manufacturing Area Sources: Chromium Compounds
X
X
OOOOOO
Flexible Polyurethane Foam Production and Fabrication Area Sources
X
X
X
PPPPPP
Lead Acid Battery Manufacturing Area Sources
X
X
QQQQQQ
Wood Preserving Area Sources
X
X
RRRRRR
Clay Ceramics Manufacturing Area Sources
X
X
SSSSSS
Glass Manufacturing Area Sources
X
X
TTTTTT
Secondary Nonferrous Metals Processing Area Sources
X
X
WWWWWW
Area Source Standards for Plating and Polishing Operations
X
X
XXXXXX
Area Source Standards for Nine Metal Fabrication and Finishing Source Categories
X
X
YYYYYY
Area Sources: Ferroalloys Production Facilities
X
ZZZZZZ
Area Source Standards for Aluminum, Copper, and Other Nonferrous Foundries
X
1 Nevada Division of Environmental Protection.
2 Washoe County District Health Department, Air Quality Management Division.
3 Clark County, Department of Air Quality and Environmental Management.
[FR Doc. 2010-27803 Filed 11-2-10; 8:45 am]
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