

[Federal Register: August 31, 2006 (Volume 71, Number 169)]
[Proposed Rules]               
[Page 51793-51796]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au06-26]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0630; FRL-8215-8]

 
Approval and Promulgation of Implementation Plans; Revisions to 
the Nevada State Implementation Plan; Monitoring and Volatile Organic 
Compound Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing full approval of some revisions and a limited 
approval/limited disapproval of other revisions to the Nevada 
Department of Conservation and Natural Resources portion of the Nevada 
State Implementation Plan (SIP). These revisions concern definitions, 
organic solvent controls, and various monitoring regulations. We are 
proposing action on state provisions that regulate emission sources 
under the Clean Air Act as amended in 1990 (Act or CAA). We are taking 
comments on this proposal and plan to follow with a final action.

DATES: Any comments must arrive by October 2, 2006.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0630, 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.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA Region 

IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed 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: Julie A. Rose, EPA Region IX, (415) 
947-4126.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What regulations did the State submit?
    B. What is the regulatory history of the Nevada SIP?
    C. What is the purpose of this proposed rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the regulations?
    B. Do the regulations meet the evaluation criteria?
    C. What are the regulation deficiencies?
    D. EPA recommendations to further improve the regulations
    E. Proposed action and public comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What regulations did the State submit?

    The Governor's designee, the Nevada Department of Conservation and 
Natural Resources, Division of Environmental Protection (NDEP), 
submitted a large revision to the applicable state implementation plan 
(SIP) on January

[[Page 51794]]

12, 2006. On March 23, 2006, the Nevada SIP submittal dated January 12, 
2006 was found to meet the completeness criteria in 40 CFR part 51 
Appendix V, which must be met before formal EPA review.
    The primary purpose of these revisions is to clarify and harmonize 
State and federally-enforceable requirements. Because these revisions 
incorporate so many changes from the 1970s and 1980s vintage SIP 
regulations, EPA has decided to review and act on the submittal in a 
series of separate actions. The first such action (mostly related to 
definitions, sulfur dioxide rules, and burning rules) was finalized in 
the Federal Register on March 27, 2006 (71 FR 15040). A second action 
(related to state statutes) was proposed in the Federal Register on 
June 9, 2006 (71 FR 33413). The remaining portions of the submittal 
will be acted on in future Federal Register actions.
    The following table lists the provisions of the Nevada 
Administrative Code (NAC) addressed by this proposal with the dates 
they were submitted by NDEP. Some of these provisions were renumbered 
after their initial adoption. Two of these submitted rules would be new 
to the SIP: NAC 445B.084 (``Hazardous air pollutant'') and NAC 445B.153 
(``Regulated air pollutant''), while the remainder would amend existing 
rules in the SIP.

                                              Submitted Provisions
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                 NAC No.                                    NAC title                    Adopted      Submitted
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445B.015.................................  ``Alternative method'' defined............     10/03/95      01/12/06
445B.062.................................  ``Equivalent method'' defined.............     10/03/95      01/12/06
445B.063.................................  ``Excess emissions'' defined..............     10/04/05      01/12/06
445B.084.................................  ``Hazardous air pollutant'' defined.......     11/03/93      01/12/06
445B.134.................................  ``Person'' defined........................     09/16/76      01/12/06
445B.153.................................  ``Regulated air pollutant'' defined.......     10/04/05      01/12/06
445B.202.................................  ``Volatile organic compounds'' defined....     03/03/94      01/12/06
445B.22093...............................  Organic solvents and other volatile            10/04/05      01/12/06
                                            organic compounds.
445B.256.................................  Monitoring systems: Calibration, operation     10/03/95      01/12/06
                                            and maintenance of equipment.
445B.257.................................  Monitoring systems: Location..............     09/16/76      01/12/06
445B.258.................................  Monitoring systems: Verification of            09/16/76      01/12/06
                                            operational status.
445B.259.................................  Monitoring systems: Performance                09/16/76      01/12/06
                                            evaluations.
445B.260.................................  Monitoring systems: Components contracted      09/16/76      01/12/06
                                            for before September 11, 1974.
445B.261.................................  Monitoring systems: Adjustments...........     09/16/76      01/12/06
445B.262.................................  Monitoring systems: Measurement of opacity     09/18/03      01/12/06
445B.263.................................  Monitoring systems: Frequency of operation     09/16/76      01/12/06
445B.264.................................  Monitoring systems: Recordation of data...     08/22/00      01/12/06
445B.265.................................  Monitoring systems: Records; reports......     04/26/84      01/12/06
445B.267.................................  Alternative monitoring procedures or           09/18/03      01/12/06
                                            requirements.
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B. What is the regulatory history of the Nevada SIP?

    Pursuant to the Clean Air Amendments of 1970, the Governor of 
Nevada submitted the original Nevada SIP to EPA in January 1972. EPA 
approved certain portions of the original SIP and disapproved other 
portions under CAA section 110(a). See 37 FR 10842 (May 31, 1972). For 
some of the disapproved portions of the original SIP, EPA promulgated 
substitute provisions under CAA section 110(c).\1\ This original SIP 
included various rules, codified as articles within the Nevada Air 
Quality Regulations (NAQR), and various statutory provisions codified 
in chapter 445 of the Nevada Revised Statutes (NRS). In the early 
1980's, Nevada reorganized and re-codified its air quality rules into 
sections within chapter 445 of the Nevada Administrative Code (NAC). 
Today, Nevada codifies its air quality regulations in chapter 445B of 
the NAC and codifies air quality statutes in chapter 445B (``Air 
Pollution'') of title 40 (``Public Health and Safety'') of the NRS.
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    \1\ Provisions that EPA promulgates under CAA section 110(c) in 
substitution of disapproved State provisions are referred to as 
Federal Implementation Plans (FIPs).
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    Nevada adopted and submitted many revisions to the original set of 
regulations and statutes in the SIP, some of which EPA approved on 
February 6, 1975 at 40 FR 5508; on March 26, 1975 at 40 FR 13306; on 
January 9, 1978 at 43 FR 1341; on January 24, 1978 at 43 FR 3278; on 
August 21, 1978 at 43 FR 36932; on July 10, 1980 at 45 FR 46384; on 
April 14, 1981 at 46 FR 21758; on August 27, 1981 at 46 FR 43141; on 
March 8, 1982 at 47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 
18, 1982 at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 
1984 at 49 FR 11626. Since 1984, EPA has approved very few revisions to 
Nevada's applicable SIP despite numerous changes that have been adopted 
by the State Environmental Commission. As a result, the version of the 
rules enforceable by NDEP is often quite different from the SIP version 
enforceable by EPA.

C. What is the purpose of this proposed rule?

    The purpose of this proposal is to bring the applicable SIP up to 
date. The regulations that are the subject of this proposal include 
certain definitions, organic solvent controls, and various monitoring 
rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the regulations?

    Generally, SIP regulations must be enforceable (see section 110(a) 
of the Act) and must not relax existing requirements (see sections 
110(l) and 193). Relevant EPA guidance and policy documents that we 
used to help evaluate enforceability include ``Review of State 
Implementation Plans and Revisions for Enforceability and Legal 
Sufficiency,'' dated September 23, 1987, from J. Craig Potter, 
Assistant Administrator for Air and Radiation, et al.

B. Do the regulations meet the evaluation criteria?

    We believe the following provisions are consistent with the 
relevant policy and guidance regarding enforceability and SIP 
relaxations: NAC 445B.015, NAC 445B.062, NAC 445B.063, NAC 445.084, NAC 
445B.134, NAC 445B.153, NAC 445B.202, NAC 445B.22093, NAC

[[Page 51795]]

445B.256, NAC 445B.257, NAC 445B.258, NAC 445B.259, NAC 445B.260, NAC 
445B.261, NAC 445B.263, NAC 445B.264, and NAC 445B.265. Generally, 
these submitted rules are unchanged from the older versions in the 
existing SIP other than for certain clarifications and enhancements. 
The Technical Support Document (TSD) dated August 16, 2006 has more 
information on our evaluation.

C. What are the regulation deficiencies?

    The following provisions conflict with section 110 of the Act and 
prevent full approval of the SIP revision.
    1. NAC 445B.262, Monitoring systems: Measurement of opacity, This 
regulation lists the methods and procedures for measuring opacity. This 
regulation allows the director to approve equivalent and alternative 
opacity procedures without describing the criteria to be used. A new 
paragraph has been added that removes the director's ability to approve 
an equivalent or alternative method when determining compliance with 
standards and emission limits contained in 40 CFR parts 60, 61, 63 and 
affected sources in the acid rain program. This new paragraph limits 
the breath of the director's discretion; however, the director 
maintains the ability to approve equivalent and alternative methods for 
SIP sources. This constitutes a SIP deficiency and conflicts with 
section 110 of the CAA. A third paragraph can be added to NAC 445B.262 
requiring that equivalent and alternative test methods for SIP sources 
be approved in advance by EPA.
    2. NAC 445B.267, Alternate monitoring procedures or requirements. 
This regulation lists situations when an alternative monitoring 
procedure or requirement can be approved by the director. A new 
paragraph has been added that removes the director's ability to approve 
an equivalent or alternative method when determining compliance with 
standards and emission limits contained in 40 CFR parts 60, 61, 63 and 
affected sources in the acid rain program. This new paragraph limits 
the breath of the director's discretion; however, the director 
maintains the ability to approve alternative methods for SIP sources 
and for ASTM test methods. This constitutes a SIP deficiency and 
conflicts with section 110 of the CAA. A third paragraph can be added 
to NAC 445B.267 requiring that equivalent and alternative test methods 
for SIP sources be approved in advance by EPA.

D. EPA Recommendations To Further Improve the Regulations

    The TSD describes additional rule revisions that do not affect 
EPA's current action but are recommended for the next time the state 
modifies their rules.

E. Proposed Action and Public Comment

    Pursuant to sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a full approval of the following provisions: NAC 445B.015, 
NAC 445B.062, NAC 445B.063, NAC 445.084, NAC 445B.134, NAC 445B.153, 
NAC 445B.202, NAC 445B.22093, NAC 445B.256, NAC 445B.257, NAC 445B.258, 
NAC 445B.259, NAC 445B.260, NAC 445B.261, NAC 445B.263, NAC 445B.264, 
and NAC 445B.265.
    In addition, EPA is proposing a limited approval of NAC 445B.262 
and NAC 445B.267 to improve the SIP. This approval is limited because 
EPA is simultaneously proposing a limited disapproval of the two 
provisions mentioned above. If we finalize this limited disapproval, we 
will not be imposing sanctions under CAA section 179 and 40 CFR 52.31 
because the state's submittal of NAC 445B.262 and NAC 445B.267, which 
represent updated versions of existing SIP rules, was not required 
under the Clean Air Act. If finalized as proposed, this action would 
incorporate the submitted provisions into the SIP, including those 
provisions identified as deficient.\2\
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    \2\ Final approval of these rules would supersede the following 
rules in the applicable SIP (superseding rule shown in parentheses) 
upon the established compliance date for any new or amended 
requirements in the superseding rules: NAC 445.439 (NAC 445B.015); 
NAC 445.501 (NAC 445B.062); NAC 445.504 (NAC 445B.063); NAC 445.564 
(NAC 445B.134); NAC 445.650 (NAC 445B.202); NAC 445.846, NAQR 
Articles 9.2.1, 9.2.1.1, and 9.2.1.2 (NAC 445B.22093); NAQR Articles 
2.17.10 and 2.17.10.1 (NAC 445B.256); NAQR Articles 2.17.6, 2.17.7 
(NAC 445B.257); NAC 445.685 (NAC 445B.258); NAC 445.686 (NAC 
445B.259); NAC 445.687 (NAC 445B.260); NAC 445.688 (NAC 445B.261); 
NAC 445.689 (NAC 445B.262); NAC 445.690 (NAC 445B.263); NAC 445.691 
(NAC 445B.264); NAC 445.692 (NAC 445B.265); and NAC 445.693 (NAC 
445B.267).
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    We will accept comments from the public on this proposed approval 
and limited approval/disapproval for the next 30 days.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
action merely proposes to approve state rules as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it 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).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). This proposed action also 
does not have Federalism implications because it does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
action merely proposes to approve state rules implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of

[[Page 51796]]

the Clean Air Act. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This proposed rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements, Volatile organic 
compound.

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

    Dated: August 21, 2006.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. 06-7320 Filed 8-30-06; 8:45 am]

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