

[Federal Register: December 11, 2006 (Volume 71, Number 237)]
[Rules and Regulations]               
[Page 71486-71489]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de06-7]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0630; FRL-8243-9]

 
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: Final rule.

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SUMMARY: EPA is finalizing full approval of certain 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). This action was proposed in the 
Federal Register on August 31, 2006 and addresses definitions, organic 
solvent controls, and various monitoring provisions. Under authority of 
the Clean Air Act as amended in 1990 (CAA or the Act), this action 
approves seventeen provisions and approves and simultaneously 
disapproves two other provisions and recommends that Nevada correct the 
rule deficiencies.

DATES: Effective Date: This rule is effective on January 10, 2007.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0630 for 
this action. The index to the docket is available electronically at 
http://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, rose.julie@epa.gov.

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

I. Proposed Action

    On August 31, 2006 (71 FR 51793), EPA proposed approval of the 
provisions of chapter 445B of the Nevada Administrative Code (NAC) 
listed below in Table 1.

                                   Table 1.--Provisions Proposed for Approval
----------------------------------------------------------------------------------------------------------------
                  NAC No.                                 NAC title                   Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
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''             03/03/94        01/12/06
                                              defined.
445B.22093.................................  Organic solvents and other volatile        10/04/05        01/12/06
                                              organic compounds.
445B.256...................................  Monitoring systems: Calibration,           10/03/95        01/12/06
                                              operation 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             09/16/76        01/12/06
                                              contracted for before September
                                              11, 1974.
445B.261...................................  Monitoring systems: Adjustments....        09/16/76        01/12/06
445B.263...................................  Monitoring systems: Frequency of           09/16/76        01/12/06
                                              operation.
445B.264...................................  Monitoring systems: Recordation of         08/22/00        01/12/06
                                              data.
445B.265...................................  Monitoring systems: Records;               04/26/84        01/12/06
                                              reports.
----------------------------------------------------------------------------------------------------------------

    We proposed to approve these regulations because we determined that 
they complied with the relevant CAA requirements. Our proposed action 
contains more information on the regulations and our evaluation.
    On August 31, 2006 (71 FR 51793), EPA also proposed a limited 
approval and limited disapproval of the provisions listed in Table 2.

[[Page 71487]]



                         Table 2.--Provisions Proposed for Limited Approval/Disapproval
----------------------------------------------------------------------------------------------------------------
                  NAC No.                                 NAC title                   Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
445B.262...................................  Monitoring systems: Measurement of         09/18/03        01/12/06
                                              opacity.
445B.267...................................  Alternative monitoring procedures          09/18/03        01/12/06
                                              or requirements.
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that these 
provisions improve the SIP and are largely consistent with the relevant 
CAA requirements. We simultaneously proposed a limited disapproval 
because, in certain respects, these provisions conflict with section 
110 of the Act. Specifically, these provisions provide inappropriate 
Director's discretion in NAC 445B.262, paragraph 1, and NAC 445B.267, 
paragraph 1, which are discussed in greater detail in our proposed 
action.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from Jennifer L. Carr and 
Michael Elges, Division of Environmental Protection, State of Nevada 
Department of Conservation & Natural Resources, by letter dated 
September 25, 2006. We summarize the comments and provide our responses 
in the paragraphs that follow. Note that some of the comments in the 
September 25, 2006 letter are directed only at a related EPA proposal 
published on August 28, 2006 (71 FR 50875), and these comments will be 
addressed in a separate final action we expect to publish in the near 
future.
    Comment #1: The first comment from the Nevada Division of 
Environmental Protection (NDEP) indicates that our proposed rule should 
have identified two SIP revisions that have been submitted by NDEP in 
addition to the one dated January 12, 2006 and should have explained 
how they provide support for our proposed action on the monitoring and 
volatile organic compound (VOC) rules published on August 31, 2006. 
These two submittals include one dated February 16, 2005 and another 
dated March 24, 2006.
    Response #1: We agree and provide a more complete discussion of the 
relevant SIP submittals below.
    On February 16, 2005, NDEP submitted a large revision to the 
applicable Nevada SIP. The February 16, 2005 SIP submittal includes new 
and amended statutes and rules as well as requests for rescission of 
certain rules in the existing SIP. The February 16, 2005 SIP submittal 
also contains documentation of public participation (i.e., notice and 
public hearing) and adoption for all of the submitted rules through the 
hearing on November 30, 2004 held by the State Environmental 
Commission.
    On January 12, 2006, NDEP submitted an amended version of the 
February 16, 2005 SIP submittal. The January 12, 2006 SIP submittal 
contains updated regulatory materials including new and amended rules 
adopted by the State Environmental Commission on October 4, 2005 but 
otherwise contains the same materials as the earlier submittal with the 
exception of the documentation of public participation. The January 12, 
2006 SIP submittal only contains documentation of public participation 
for rule amendments adopted by the State Environmental Commission on 
October 4, 2005 but did not re-submit the related documentation 
included in the earlier submittal. Therefore, the January 12, 2006 SIP 
submittal supersedes the earlier SIP revision submittal dated February 
16, 2005 for all purposes except for the documentation of public 
participation for adoption dates from November 30, 2004 and earlier.
    Our consideration of the rules submitted on January 12, 2006 and 
proposed for approval or limited approval on August 31, 2006 takes into 
account the public participation documentation contained in the earlier 
submittal (except, as noted, for the rules adopted on October 4, 2005 
for which documentation was provided by NDEP in the January 12, 2006 
SIP submittal). CAA section 110(l) requires reasonable notice and 
public hearing prior to adoption of SIP revisions by States for 
subsequent submittal to EPA for approval or disapproval under CAA 
section 110(k)(3). The public participation documentation provided by 
NDEP in the February 16, 2005 SIP submittal (and in the January 12, 
2006 SIP submittal package for the October 4, 2005 rule amendments) is 
sufficient for the purposes of CAA section 110(l).
    NDEP's SIP submittal dated March 24, 2006 includes a definition of 
the term ``person'' in section 0.039 of title 0--Preliminary Chapter--
General Provisions of the Nevada Revised Statutes (NRS). The general 
definition of ``person'' in NRS 0.039 is the State's basic definition 
of this term, and other statutory and regulatory provisions that cite 
``person'' need only define the term for the specific purposes therein 
as necessary to add or subtract entities listed in the basic definition 
of ``person'' in NRS 0.039. We approved NRS 0.039, as submitted on 
March 24, 2006, and NRS 445.150 (``Person''), in a final rule published 
on August 31, 2006 (71 FR 51766). NDEP's submittal, and EPA's approval, 
of the basic definition of ``person'' in NRS 0.039 and the expanded 
definition of ``person'' for air pollution control purposes in NRS 
445B.150, together with NDEP's submittal, and EPA's approval, of NAC 
445B.134 (``Person''), which was included in the proposal finalized 
herein, provide the complete definition of ``person'' for the purposes 
of Nevada's air pollution regulatory program.
    Comment #2: NDEP disagrees with EPA's characterization that Nevada 
eliminated some terms in the definition of ``person'' and explains that 
the Nevada State Legislature created a basic definition of ``person'' 
and put it in the General Provisions chapter of the State statutes and 
that, together with that action, the NRS definition of ``person'' in 
the air control chapter (currently NRS 445B) was revised to refer to 
the basic definition, not repeat it, and include only those additional 
terms that expanded the basic definition. NDEP also indicates that, on 
September 6, 2006, the State Environmental Commission adopted 
amendments to the term ``person'' in NAC 445B.134 to refer directly to 
the basic definition in the General Provisions of the NRS and that NDEP 
expects to submit the amended definition to EPA in the near future.
    Response #2: EPA appreciates the distinction and understands that 
the complete definition of ``person'' for the purposes of Nevada's air 
pollution regulatory program and as codified at NAC 445B.134, which was 
proposed for approval in our August 31, 2006 notice (71 FR 51793), 
relies on the basic definition in NRS 0.039 as expanded by the 
definition of ``person'' in NRS 445B.150. We approved both NRS 0.039 
and NRS 445B.150 as a revision to the Nevada applicable SIP in a notice 
also published on August 31, 2006 (71 FR 51766).
    EPA also appreciates the State's effort to amend NAC 445B.134 to 
further clarify the reliance of the regulatory

[[Page 71488]]

definition of ``person'' on both the general definition in NRS 0.039, 
which NAC 445B.134 (as submitted on January 12, 2006) does not cite, as 
well as the air-pollution-specific definition in NRS 445B.150, which 
NAC 445B.134 (as submitted on January 12, 2006) does cite, and will 
take action on the amended definition when it is submitted.
    Comment #3: NDEP comments that EPA's recommendation to revise the 
definition of ``volatile organic compounds'' in NAC 445B.202 by linking 
the related definition in the Code of Federal Regulations (CFR) to a 
particular date is unnecessary because NAC 445B.202 refers to the CFR 
definition as adopted by reference in NAC 445B.221, which contains a 
specific date for the CFR definition.
    Response #3: We agree that amending NAC 445B.202 to include a 
specific date for the cited CFR definition is unnecessary given the 
link in NAC 445B.202 to NAC 445B.221 where such a date is specified.
    Comments #4: NDEP indicates that several minor clarifications and 
editorial corrections suggested by EPA were adopted into the NAC by the 
State Environmental Commission on September 6, 2006 and will be 
submitted in the near future.
    Response #4: We appreciate these revisions, and will take action 
when they are submitted to EPA.

III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action. Therefore, as authorized in 
sections 110(k)(3) and 301(a) of the Act, EPA is finalizing the 
approval of the provisions listed in Table 1 and also finalizing the 
limited approval of the provisions listed in Table 2. This action 
incorporates the submitted rules into the Nevada SIP, including those 
provisions identified as deficient. As authorized under section 
110(k)(3), EPA is simultaneously finalizing a limited disapproval of 
the rules listed in Table 2. EPA recommends that Nevada revise the 
deficient provisions to exclude the director's discretion conditions. 
No sanctions are associated with this action because this is not a 
required submittal.
    Note that the submitted provisions have all been adopted by the 
State Environmental Commission, and EPA's final limited disapproval 
does not prevent EPA or the state agency from enforcing them.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 approves state rules as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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 approves 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 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 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 approves 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 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 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 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.).
    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 rule 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 9, 2007. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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. 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: November 2, 2006.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

[[Page 71489]]

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart DD--Nevada

0
2. Section 52.1470 is amended by adding paragraph (c)(56)(i) (A)(5), 
(6), and (7) to read as follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (56) * * *
    (i) * * *
    (A) * * *
    (5) The following sections of the Nevada Air Quality Regulations 
were adopted on the dates listed below and recodified as Chapter 445B 
of the Nevada Administrative Code in November 1994:
    (i) September 16, 1976: 445B.134, 445B.257, 445B.258, 445B.259, 
445B.260, 445B.261, and 445B.263.
    (6) The following sections of Chapter 445 of the Nevada 
Administrative Code were adopted on the dates listed below and 
recodified as Chapter 445B of the Nevada Administrative Code in 
November 1994:
    (i) April 26, 1984: 445B.265.
    (ii) November 3, 1993: 445B.084.
    (iii) March 3, 1994: 445B.202.
    (7) The following sections of Chapter 445B of the Nevada 
Administrative Code were adopted on the dates listed below:
    (i) October 3, 1995: 445B.015, 445B.062, and 445B.256.
    (ii) August 22, 2000: 445B.264.
    (iii) September 18, 2003: 445B.262 and 445B.267.
    (iv) October 4, 2005: 445B.063, 445B.153, and 445B.22093.
* * * * *
 [FR Doc. E6-20895 Filed 12-8-06; 8:45 am]

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