Federal Register / Vol. 60, No. 238 / Tuesday, December 12, 1995 / Rules and Regulations 63631

Subpart H—National Emission

Standards for Organic Hazardous Air

Pollutants for Equipment Leaks

24. Section 63.175 is amended by

revising paragraph (d)(4) introductory

text to read as follows:

§ 63.175 Quality improvement program for

valves.

* * * * *

(d) * * *

(4) The owner or operator must

demonstrate progress in reducing the

percent leaking valves each quarter the

process unit is subject to the

requirements of paragraph (d) of this

section, except as provided in

paragraphs (d)(4)(ii) and (d)(4)(iii) of

this section.

* * * * *

25. Section 63.182 is amended by

revising paragraphs (a)(6)(ii) and

(d)(2)(vii) to read as follows:

§ 63.182 Reporting requirements.

(a) * * *

(6) * * *

(ii) A request for an extension of

compliance must include the data

described in § 63.6(i)(6)(i) (A), (B), and

(D) of subpart A of this part.

* * * * *

(d) * * *

(2) * * *

(vii) The number of agitators for

which leaks were detected as described

in § 63.173(a) and (b) of this subpart;

* * * * *

[FR Doc. 95–28382 Filed 12–11–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[AD–FRL–5344–9]

Clean Air Act Final Interim Approval of

the Operating Permits Program;

Nevada Division of Environmental

Protection; Nevada

AGENCY: Environmental Protection

Agency (‘‘EPA’’).

ACTION: Final Interim Approval.

SUMMARY: The EPA is promulgating

interim approval of the title V operating

permits program submitted by the

Nevada Division of Environmental

Protection (‘‘NDEP’’ or ‘‘State’’) for the

purpose of complying with federal

requirements that mandate that states

develop, and submit to EPA, programs

for issuing operating permits to all

major stationary sources and to certain

other sources.

EFFECTIVE DATE: January 11, 1996.

ADDRESSES: A copy of NDEP’s submittal

and other supporting information used

in developing the final approval are

available for inspection (docket number

NV–DEP–95–1–OPS) during normal

business hours at the following location:

U.S. Environmental Protection Agency,

Region IX, Air & Toxics Division, 75

Hawthorne Street, San Francisco, CA

94105.

FOR FURTHER INFORMATION CONTACT:

Celia Bloomfield (telephone 415/744–

1249), Mail Code A–5–2, U.S.

Environmental Protection Agency,

Region IX, Air & Toxics Division, 75

Hawthorne Street, San Francisco, CA

94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

Title V of the 1990 Clean Air Act

Amendments (sections 501–507 of the

Clean Air Act (‘‘Act’’)), and

implementing regulations at 40 Code of

Federal Regulations (‘‘CFR’’) part 70,

require that states develop and submit

operating permits programs to EPA by

November 15, 1993, and that EPA act to

approve or disapprove each program

within 1 year after receiving the

submittal. The EPA’s program review

occurs pursuant to section 502 of the

Act and the part 70 regulations, which

together outline criteria for approval or

disapproval. Where a program

substantially, but not fully, meets the

requirements of part 70, EPA may grant

the program interim approval for a

period of up to 2 years. If EPA has not

fully approved a program by 2 years

after the November 15, 1993 date, or by

the end of an interim program, it must

establish and implement a federal

program.

On August 7, 1995, EPA proposed

interim approval of the operating

permits program for NDEP (‘‘NPRM’’).

See 60 FR 40140. In that Federal

Register document, EPA also proposed

approval of NDEP’s interim mechanism

for implementing section 112(g) and its

program for delegation of section 112

standards as promulgated as they apply

to title V and non-title V sources. Public

comment was solicited on the three

proposed actions, and EPA is

responding to those comments in this

document and in a separate ‘‘Response

to Comments’’ document that is

available in the docket at the Regional

office.

II. Final Action and Implications

A. Analysis of State Submission and

Response to Public Comments

The August 7, 1995 Federal Register

notice proposed interim approval of

NDEP’s title V operating permits

program as submitted on February 8,

1995. EPA is aware that NDEP has

revised its implementing regulations

since the February 8, 1995 submission;

however, those revisions have not been

submitted to EPA for approval and are

not part of the program being approved

in today’s final action.

EPA received comments on the NPRM

from two commenters: the National

Mining Association (‘‘NMA’’) and

NDEP. With one exception, the program

deficiencies identified in the NPRM

remain unchanged as a result of public

comment. Based on public comment

and further analysis, the deficiency

identified in section II.B.1.(2) of the

NPRM has been removed; i.e., NDEP’s

definition of ‘‘regulated air pollutant’’ is

fully approvable. See section II.A.4.

below for further discussion. The

commenters also provided a few

program clarifications which are

discussed below. Furthermore, please

note that an issue raised as a deficiency

in the context of ‘‘insignificant

activities’’ and discussed in section

II.A.2.c. of the proposed notice has

become a separate interim approval

issue as a result of public comment. See

section II.A.1. for more information. No

adverse public comment was received

on the proposed approvals of NDEP’s

program for delegation of section 112

standards as promulgated or transition

mechanism for implementing section

112(g), and hence, those approvals have

not been altered as a result of public

comment.

1. Applicability

In response to a program deficiency

identified by EPA in section II.B.1.(10)

of the NPRM, NDEP commented that it

does not plan to permit any source that

is subject to the New Source

Performance Standard (‘‘NSPS’’) for new

residential wood heaters or the National

Emissions Standard for Hazardous Air

Pollutants (‘‘NESHAP’’) for asbestos

demolition because the State has not

accepted delegation for such standards.

In order to have a fully approvable

program, a state must have authority to

permit all major sources and to write

permits that assure compliance with all

federal applicable requirements. If

under State law NDEP must receive

delegation of a federal requirement

before it can write that requirement into

a permit or assure compliance with that

requirement, then NDEP must seek and

receive delegation in sufficient time to

issue the permit. It is possible for

Nevada to obtain delegation of an NSPS

or NESHAP requirement solely for title

V sources.

In the NPRM, EPA relied on the

Nevada Attorney General’s legal opinion

(dated November 15, 1993) that NDEP

has authority to issue permits to all
63632 Federal Register / Vol. 60, No. 238 / Tuesday, December 12, 1995 / Rules and Regulations

sources required to have permits

pursuant to section 502(a) of the Act

and § 70.3 of part 70 (p. 2 of legal

opinion), and authority to ‘‘require that

all applicable requirements be

incorporated into an operating permit’’

(p. 8 of legal opinion). In addition,

NDEP has committed to implement all

applicable requirements, including

those that would necessitate State rule

adoption prior to incorporation into the

permit. (See Program Submittal, Section

II.A.2., pp. II–1 to II–2.) EPA expects

NDEP to issue permits to all major

sources and to include all applicable

requirements in those permits. If a

regulatory impediment exists outside of

the submitted program, then NDEP must

eliminate it in order to have a fully

approvable program.

In response to EPA’s discussion in the

NPRM (section II.A.2.c.) on insignificant

activities, NDEP commented that two of

the listed insignificant activities,

agricultural land use and equipment or

contrivances used for food processing,

are ‘‘unpermittable activities.’’ EPA

regards this comment as ambiguous

given that NAC 445B.293.1 (previously

NAC 445.705.1) requires, and the

Attorney General’s legal opinion

confirms, that all major sources (with

the two exceptions noted above) must

obtain operating permits. Furthermore,

EPA assumed that if information is

provided in the application because it is

needed to ‘‘establish the basis for the

applicability of standards’’ (section

445B.295.2(b), previously

445.7054.2(b)), then the units subject to

such standards (i.e., applicable

requirements) would be contained in

the permit. EPA expects NDEP to

implement its insignificant activities

provisions in a manner consistent with

both part 70 and the provisions of the

NAC relied upon in the NPRM, that is:

(1) Emissions from insignificant

activities must be considered in

applicability determinations; (2) Class I

permit applications may not omit any

information needed to determine or

impose any applicable requirement; and

(3) if an applicable requirement applies

to a unit at a major source, that unit

must be permitted. In order to have a

fully approvable program, NDEP must

remove all ambiguity regarding the

permitting of agricultural and food

processing activities and clearly require

all major sources to obtain Class I

permits. If a regulatory impediment

exists outside of the submitted program,

then NDEP must eliminate that

impediment prior to full program

approval.

Also, in the NPRM, EPA noted that

NDEP’s program contains

inconsistencies with regard to the

applicability of nonmajor sources to title

V. (See 60 FR 40141–40142, section

II.A.2.a. ‘‘applicability.’’) EPA requested

a letter from NDEP clarifying how it

intends to carry out the applicability

requirements in its program.

In the comment letter received from

NDEP on September 6, 1995, the State

informed EPA that it has already

corrected the ambiguity regarding

whether or not nonmajor sources subject

to a section 111 or 112 standard are

subject to title V. NDEP revised the

Nevada Administrative Code on April 4,

1995 to clearly state that ‘‘major,’’ and

not ‘‘minor,’’ new sources subject to

sections 111 and 112 will be permitted

as Class I–B sources.

2. Insignificant Activities

One commenter asserted that EPA’s

position in the NPRM regarding

insignificant activities is inconsistent

with the July 10, 1995 ‘‘White Paper,’’

which gives states flexibility in

designating insignificant activities. EPA

disagrees that the NPRM is inconsistent

with the ‘‘White Paper’’ with regard to

insignificant activities. EPA is not

questioning the State’s authority to

identify insignificant activities; rather,

EPA is rejecting the unbounded nature

of some of the listed activities.

The meaning of the term

‘‘insignificant’’ as used in section

70.5(c) is that information is unessential

for determining whether and how an

applicable requirement applies at a

source. If emissions at an activity are

extremely low, that activity is unlikely

to be subject to an applicable

requirement. That is why EPA suggested

that NDEP create an across-the-board

emissions threshold above which

activities could not qualify as

insignificant. Without an across-theboard threshold or unit-specific limits,

activities on NDEP’s list, such as

‘‘agricultural land use’’ and ‘‘equipment

or contrivances used exclusively for the

processing of food’’ could be construed

as being ‘‘insignificant’’ even if subject

to an applicable requirement. Where

there is a chance that an activity is

subject to an applicable requirement

(e.g., food processing activities may be

subject to the yeast manufacturing

NESHAP), EPA needs additional

criteria, such as an emissions threshold,

to ensure that the activity is

insignificant for part 70 permitting

purposes.

The commenter further contended

that NDEP’s regulation already prohibits

activities subject to an applicable

requirement from qualifying as

insignificant. Nevertheless, the

commenter asked whether the following

language would resolve EPA’s concerns:

‘‘[N]o source subject to an applicable

requirement may qualify as an

insignificant activity.’’

EPA disagrees that NDEP’s regulation

clearly prohibits activities subject to an

applicable requirement from qualifying

as insignificant. In fact, NDEP’s list of

insignificant activities contains

activities, such as air-conditioning

equipment, that are almost certainly

subject to an applicable requirement.

Unless NDEP removes from the list of

insignificant activities those activities

that are likely to be subject to a unitspecific applicable requirement, the

language proposed by the commenter

might only cause confusion. However,

the language proposed by the

commenter would help clarify that

insignificant activities provisions do not

exempt sources from title V and do not

relieve sources from having to comply

with any applicable requirements.

Another comment received on

insignificant activities is that EPA’s

recommended emissions thresholds are

arbitrary and unnecessary. The

commenter pointed out that other state

programs have allowed emission

thresholds that are higher than EPA’s

recommended limits for HAP emissions.

As stated in the proposed notice, EPA

will review and evaluate any emissions

thresholds proposed by NDEP.

Emissions thresholds should reflect

state-specific circumstances. Part 70

specifically provides that the permitting

authority is responsible for providing

the ‘‘criteria used to determine

insignificant activities or emission

levels.’’ NDEP may use levels approved

in other state programs as guidance.

3. Reporting of Permit Deviations

Both commenters disagreed with

EPA’s statement that each permit must

define ‘‘prompt’’ for purposes of prompt

reporting of deviations. According to the

commenters, ‘‘prompt’’ is already

defined in NAC 445B.232.4 (previously

445.667.4) as reporting any excess

emissions within 24 hours. In addition,

NAC 445B.326 (previously 445.7133)

defines prompt for emergencies.

The purpose of defining ‘‘prompt’’ in

either the title V program or the title V

permit is to notify the source of its exact

reporting obligation. While NAC

445B.232.4 defines ‘‘prompt’’ in an

acceptable manner, it is not currently

part of NDEP’s title V program.

However, NAC 445B.326 was submitted

as part of NDEP’s title V program, and

EPA agrees that ‘‘prompt’’ has already

been defined for emergencies covered

by that provision.

Given that permits must contain ‘‘all

applicable reporting requirements’’ and

that the definition of ‘‘applicable
Federal Register / Vol. 60, No. 238 / Tuesday, December 12, 1995 / Rules and Regulations 63633

1 Please see the proposed interim approval

document (60 FR 40143–40144, August 7, 1995) for

a list of changes that must be made in order for

NDEP’s program to be fully approvable.

requirement’’ in NDEP’s program

includes State-only requirements, EPA

believes that sources are adequately

notified of their reporting obligation for

the interim period. Therefore, during

the interim period, NDEP may rely on

NAC 445B.232.4 to define ‘‘prompt’’

rather than defining it in each

individual permit. For full approval,

however, NDEP must either submit NAC

445B.232.4 for inclusion in its approved

program, or define ‘‘prompt’’ in each

permit.

4. Regulated Air Pollutant

Both commenters disagreed with

EPA’s position that the definition of

‘‘regulated air pollutant’’ in NAC

445B.153 (previously 445.5905) is

deficient. EPA identified NDEP’s

definition of ‘‘regulated air pollutant’’ as

a program deficiency because it

appeared to be inconsistent with the

part 70 definition. Specifically, NDEP’s

definition seemed to exclude pollutants

that are subject to requirements of the

Act (such as title VI and sections 112(g),

112(j), and 112(r)), but are not subject to

promulgated standards. This apparent

inconsistency is not an issue, however,

for Class I and Class II pollutants since

they are all currently subject to

promulgated requirements (57 FR

31242, July 14, 1992). It is also not an

issue for section 112 requirements since

NDEP’s definition of ‘‘regulated air

pollutant’’ can be interpreted broadly to

include pollutants regulated by sections

112(g), 112(j), and 112(r) of the Act.

5. Duty to Apply

One commenter asked EPA to clarify

what application trigger is missing from

the State’s title V program. In order to

understand the deficiency, one must

look at the language in part 70 which

states that an initial title V application

is due ‘‘within 12 months after the

source becomes subject to the permit

program’’ (section 70.5(a)(1)). As is the

case in NDEP’s regulation, a source may

‘‘become subject’’ upon the effective

date of the program or after commencing

operation of a new source. However,

these two situations are not the only

scenarios that would make a source

subject to title V for the first time. For

instance, a source may become subject

to title V upon promulgation of a MACT

standard that does not exempt nonmajor

sources to obtain title V permits.

Similarly, the Administrator could

designate a category of nonmajor

sources to be subject to title V. Finally,

facility modifications may increase a

source’s potential to emit to above the

major source level, thus making a source

newly subject to title V. For these

reasons, NDEP’s regulation must be

revised for full approval.

6. Permit Shield

NDEP disputed EPA’s comment in the

NPRM that the program’s permit shield

provisions are deficient. Because a

permit shield may insulate a source

from enforcement, it is essential for EPA

and the public to know when a permit

shield is in the permit and exactly

which conditions the permit shield is

covering. According to NDEP’s

regulation, permits may be written to

provide the benefits of a permit shield

without expressly stating that a permit

shield exists. This approach is plainly

inconsistent with § 70.6(f)(2) which

states that: ‘‘[a] part 70 permit that does

not expressly state that a permit shield

exists shall be presumed not to provide

such a shield.’’ NDEP must make all the

changes identified in the proposed

notice in order to have fully approvable

permit shield provisions.

7. Emissions Trading

NDEP commented that it does not

intend to provide the emissions trading

opportunity specified in § 70.6(a)(10)

and that it intends to remove the

existing provisions for trading under a

federally enforceable emissions cap,

which are now located in NAC

445B.316.1(g) (previously NAC

445.7114.1(g)) and which satisfy the

requirements of § 70.4(b)(12)(iii).

Consequently, NDEP indicated that it

will not correct the regulatory

deficiencies with regard to trading

identified in the proposed approval

notice under section II.B.1.(9). NDEP

noted, however, that it will allow

trading as an alternative operating

scenario.

The federal part 70 regulation does

not give states discretion about whether

to allow the emissions trading

provisions of §§ 70.6(a)(10) and

70.4(b)(12)(iii). First, § 70.6(a)(10) says

that the permitting authority cannot

deny trading opportunities where such

opportunities are provided by the

underlying applicable requirement. For

instance, if NDEP permits a source

subject to the Hazardous Organic

NESHAP (HON), which allows for

trading without a case-by-case approval,

and the source requests to take

advantage of the trading provisions of

the HON, then NDEP must establish

trading terms and conditions in the

source’s permit. Second,

§ 70.4(b)(12)(iii) states that the

permitting authority ‘‘shall’’ allow for

trading under a federally enforceable

emissions cap. In the proposed

approval, EPA relied on NAC

445.7114.1(g) to satisfy the requirements

for trading under a federally enforceable

emissions cap. If NDEP removes such

trading provisions from its program, the

program will become deficient with

regard to operational flexibility.

Moreover, EPA is not convinced that

NDEP’s alternative operating scenario

provisions provide an adequate

framework for these types of trading

opportunities.

B. Final Action

1. Title V Operating Permits Program

The EPA is promulgating interim

approval of NDEP’s title V operating

permits program as submitted on

February 8, 1995. In order to receive full

approval, NDEP must correct the ten

program deficiencies listed in the

proposed interim approval document

under section II.B.1.(1, 3–11) 1 as well as

one additional deficiency regarding the

unpermittable status of agricultural and

food processing activities which was

identified as a result of public comment

and is discussed above in section II.A.1.

The scope of NDEP’s part 70 program

approved in this notice applies to all

sources under NDEP’s jurisdiction. It

does not apply to any sources of air

pollution over which an Indian tribe has

jurisdiction. See, e.g., 59 FR 55813,

55815–18 (Nov. 9, 1994). The term

‘‘Indian tribe’’ is defined under the Act

as ‘‘any Indian tribe, band, nation, or

other organized group or community,

including any Alaska Native village,

which is federally recognized as eligible

for the special programs and services

provided by the United States to Indians

because of their status as Indians.’’ See

section 302(r) of the Act; see also 59 FR

43956, 43962 (Aug. 25, 1994); 58 FR

54364 (Oct. 21, 1993).

This interim approval, which may not

be renewed, extends until January 12,

1998. The specific conditions of the

interim approval, NDEP’s obligation to

submit a complete corrective program,

and the potential use of sanctions were

set out in the proposed notice (60 FR

40140, August 7, 1995, section I.B.) and

will not be repeated in this document.

2. State Preconstruction Permit Program

Implementing Section 112(g)

EPA is approving the use of NDEP’s

integrated preconstruction/operating

permit program as a mechanism to

implement section 112(g) during the

transition period between promulgation

of EPA’s section 112(g) rule and

adoption by NDEP of rules specifically

designed to implement section 112(g).
63634 Federal Register / Vol. 60, No. 238 / Tuesday, December 12, 1995 / Rules and Regulations

EPA is limiting the duration of this

approval to 18 months following

promulgation by EPA of the section

112(g) rule.

3. Program for Delegation of Section 112

Standards as Promulgated

EPA is promulgating approval under

section 112(l)(5) and 40 CFR section

63.91 of NDEP’s program for receiving

delegation of section 112 standards that

are unchanged from federal standards as

promulgated. EPA is approving NDEP’s

delegation mechanism for part 70 and

non-part 70 sources.

III. Administrative Requirements

A. Docket

Copies of NDEP’s submittal and other

information relied upon for the final

interim approval, including public

comment letters received and reviewed

by EPA on the proposal, are contained

in docket number NV–DEP–95–1–OPS

maintained at the EPA Regional Office.

The docket is an organized and

complete file of all the information

submitted to, or otherwise considered

by, EPA in the development of this final

interim approval. The docket is

available for public inspection at the

location listed under the ADDRESSES

section of this document.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from review

under Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s actions under section 502

of the Act do not create any new

requirements, but simply address

operating permit programs submitted to

satisfy the requirements of 40 CFR part

70. Because this action does not impose

any new requirements, it does not have

a significant impact on a substantial

number of small entities.

D. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a federal mandate that

may result in estimated costs to state,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under Section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule. EPA

has determined that the approval action

promulgated today does not include a

federal mandate that may result in

estimated costs of $100 million or more

to either state, local, or tribal

governments in the aggregate, or to the

private sector. This federal action

approves pre-existing requirements

under state or local law, and imposes no

new federal requirements. Accordingly,

no additional costs to state, local, or

tribal governments, or to the private

sector, result from this action.

List of Subjects in 40 CFR Part 70

Environmental protection,

Administrative practice and procedure,

Air pollution control, Hazardous

substances, Intergovernmental relations,

Operating permits, and Reporting and

recordkeeping requirements.

Authority: 42 U.S.C. sections 7401–7671q.

Dated: December 1, 1995.

Felicia Marcus,

Regional Administrator.

* * * * *

Part 70, title 40 of the Code of Federal

Regulations is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Appendix A to part 70 is amended

by adding paragraph (a) to the entry for

Nevada:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permits Programs

* * * * *

The following state program was

submitted by the Nevada Division of

Environmental Protection:

(a) Nevada Division of Environmental

Protection: submitted on February 8,

1995; interim approval effective on

January 11, 1996; interim approval

expires January 12, 1998.

* * * * *

[FR Doc. 95–30261 Filed 12–11–95; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Office of Inspector General

42 CFR Part 1004

RIN 0991–AA73

Health Care Programs: Fraud and

Abuse; Revisions to the PRO

Sanctions Process

AGENCY: Office of Inspector General

(OIG), HHS.

ACTION: Final rule.

SUMMARY: This final rule revises and

updates the procedures governing the

imposition and adjudication of program

sanctions predicated on

recommendations of State Utilization

and Quality Control Peer Review

Organizations (PROs). These changes

are being made as a result of statutory

revisions designed to address health

care fraud and abuse issues and the OIG

sanctions process. In addition, this final

rule sets forth new appeal and

reinstatement procedures for

practitioners and other persons

excluded by the OIG based on a PRO

recommendation.

EFFECTIVE DATE: December 12, 1995.

FOR FURTHER INFORMATION CONTACT:

Joe J. Schaer, Office of Management and

Policy, (202) 619–3270

Joanne Lanahan, Office of Civil Fraud

and Administrative Adjudication,

(410) 786–9609.

SUPPLEMENTARY INFORMATION:

I. Background

A. The PRO Sanctions Process

Section 1156 of the Social Security

Act imposes specific statutory

obligations on practitioners and other

persons to furnish necessary services to

Medicare and State health care program

beneficiaries that meet professionally

recognized standards, and authorizes

the Secretary—based on a PRO’s

recommendation—to impose sanctions

on those who fail to comply with these

statutory obligations.

Under the PRO sanctions process, no

practitioner or other person is

recommended for an exclusion or a

monetary penalty until the practitioner

or other person has an opportunity to

provide additional information and

have an extensive discussion with the

PRO. After the receipt of a

recommendation from a PRO, the OIG

excludes or imposes a monetary penalty

only after a careful review of all

submitted documents and a separate

determination that the practitioner or