

[Federal Register: April 17, 2007 (Volume 72, Number 73)]
[Proposed Rules]               
[Page 19144-19150]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ap07-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2007-0165; FRL-8300-3]

 
Approval and Promulgation of Implementation Plans; Revisions to 
the Nevada State Implementation Plan; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing, under the Clean Air Act, approval of certain 
revisions to the applicable state implementation plan for the State of 
Nevada and full disapproval of certain other revisions. These revisions 
involve State rules governing applications for, and issuance of, 
permits for stationary sources, but not including review and permitting 
of major sources and major modifications under parts C and D of title I 
of the Clean Air Act. These revisions involve submittal of certain new 
or amended State rules and requests by the State for rescission of 
certain existing rules from the state implementation plan. The 
rescission requests for which we propose approval are contingent upon 
receipt of public notice and hearing documentation from the State. EPA 
is proposing this action under the Clean Air Act obligation to take 
action on State submittals of revisions to state implementation plans. 
The intended effect is to update the rules governing permitting in the 
applicable state implementation plan and to rescind unnecessary 
provisions from the applicable plan. EPA is taking comments on this 
proposal and plans to follow with a final action.

DATES: Any comments must arrive by June 18, 2007.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2007-0165, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-

line instructions.
    2. E-mail: R9airpermits@epa.gov.
    3. Mail or deliver: Gerardo Rios (Air-3), 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. 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: Laura Yannayon, EPA Region IX, (415) 
972-3534, yannayon.laura@epa.gov.

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

Table of Contents

I. The State's Submittal
    A. Which rules did the state submit or rescind?
    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 rules?
    B. Do the rules meet the evaluation criteria?
    C. Public comment and proposed action.
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. Which rules did the state submit or rescind?

    On February 16, 2005, the State of Nevada's Department of 
Conservation and Natural Resources, Division of Environmental 
Protection (NDEP) submitted a large revision to the applicable State 
Implementation Plan (SIP). The February 16, 2005 SIP revision submittal 
includes statutory provisions, new or amended rules as well as requests 
for rescission of certain statutory provisions and rules approved by 
EPA into the applicable SIP. The rules and rescission requests 
submitted by NDEP on February 16, 2005 relate to definitions, 
administrative requirements, prohibitory rules, and permitting-related 
requirements and procedures. The February 16, 2005 SIP submittal also 
includes documentation of public notice and hearing for all of the new 
or amended rules through the hearing on November 30, 2004 held by the 
Nevada State Environmental Commission.
    On January 12, 2006, NDEP re-submitted most of the earlier 
submittal as modified to reflect new or amended rules adopted by the 
State Environmental Commission on October

[[Page 19145]]

4, 2005. The January 12, 2006 SIP revision submittal supersedes the 
regulatory portion of the earlier SIP revision submittal but is not a 
complete re-submittal of the earlier submittal in that it did not 
include the documentation of public notice and hearing previously 
submitted. The January 12, 2006 SIP revision submittal does include 
such documentation for amendments adopted by the commission on October 
4, 2005.
    On December 8, 2006, NDEP submitted a SIP revision supplementing 
and superseding certain rules submitted on January 12, 2006 to reflect 
amendments adopted by the State Environmental Commission on September 
6, 2006. The December 8, 2006 SIP revision submittal contains the 
amended rules and related documentation of public notice and hearing. 
Our consideration of the rules submitted on January 12, 2006 and 
December 8, 2006 is made herein in light of the public participation 
documentation contained in those two submittals as well as the February 
16, 2005 submittal. With some specific exceptions, none of the three 
submittals contains documentation of public notice and hearing for the 
State's rescissions.
    The primary purpose of these SIP revision submittals is to clarify 
and harmonize the provisions approved by EPA under section 110 of the 
Clean Air Act (``Act'' or CAA) with the current provisions adopted by 
the State. Because these submittals incorporate so many changes from 
the 1970s and 1980s vintage SIP regulations, EPA has decided to review 
and act on them in a series of separate actions. The first such action, 
related to various definitions, sulfur emission rules, and restrictions 
on open burning and use of incinerators, was proposed in the Federal 
Register on September 13, 2005 (70 FR 53975) and finalized on March 27, 
2006 (71 FR 15040). The second such action, related to statutory 
authority, was proposed on June 9, 2006 (71 FR 33413) and finalized on 
August 31, 2006 (71 FR 51766). A third action, related to most of the 
State's rescissions, was proposed on August 28, 2006 (71 FR 50875); EPA 
finalized most of the proposed rescissions on January 3, 2007 (72 FR 
11). A fourth action, related to monitoring and VOC rules, was proposed 
on August 31, 2006 (71 FR 51793) and finalized on December 11, 2006 (71 
FR 71486).
    In today's action, we are taking another step in the process of 
acting on the State's January 12, 2006, and December 8, 2006 SIP 
revision submittals by proposing action on the State's submittal of 
rules governing applications for, and issuance of, permits for 
stationary sources.\1\ We are also proposing action on the State's 
requests for rescission of certain permit-related rules in the existing 
SIP. The remaining portions of the submittals will be acted on in 
future Federal Register actions.
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    \1\ We note that the stationary source permitting rules that are 
the subject of this proposal are not intended to satisfy the 
requirements for pre-construction review and permitting of major 
sources or major modifications under part C (``Prevention of 
significant deterioration of air quality'') or part D (``Plan 
requirements for nonattainment areas'') of title I of the Clean Air 
Act. Of the 100+ permit-related rules or statutes that were 
submitted by NDEP for approval or for rescission, we are proposing 
action today on all but two. We are deferring action on the State's 
requests for rescission of rule 25 of general order number 3 of the 
Nevada Public Service Commission and Nevada Revised Statutes (NRS) 
704.820 to 704.900--Construction of utility facilities: utility 
environmental protection act. Rule 25 of general order number 3 and 
NRS 704.820-900 relate to new source review under part D, and as 
such, we will take action on the State's related rescissions after 
the State submits, and we take action on, a revised 
``nonattainment'' new source review program under part D of title I 
of the Clean Air Act.
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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).\2\ 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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    \2\ 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 proposed rule is to present our evaluation 
under the Clean Air Act and EPA's regulations of the new and amended 
rules in NDEP's January 12, 2006 and December 8, 2006 SIP revision 
submittals. The submitted rules relate to application for, and issuance 
of, permits for stationary sources and with respect to NDEP's requests 
for rescission of certain permitting-related rules from the existing 
SIP. We provide our reasoning in general terms below but provide a more 
detailed analysis in the technical support document (TSD) that has been 
prepared for this proposed rulemaking.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Under CAA section 110(k)(2), EPA is obligated to take action on 
submittals by States of SIPs and SIP revisions. CAA section 110(k)(3) 
authorizes EPA to approve or disapprove, in whole or in separable part, 
such submittals.
    EPA has reviewed the rules submitted on January 12, 2006 and 
December 8, 2006 by NDEP governing application for, and issuance of, 
permits for stationary sources and the permitting-related rules (in the 
existing SIP) that the State has requested rescission for compliance 
with the CAA requirements for SIPs in general set forth in CAA section 
110(a)(2) and for stationary source permitting programs in particular 
in 40 CFR part 51, sections 51.160 through 51.164, and also for 
compliance with CAA requirements for SIP revisions in CAA section 
110(l) and 193.\3\ As described below, EPA is

[[Page 19146]]

proposing approval of some, but full disapproval of most, of the 
submitted rules and rescissions.
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    \3\ CAA section 110(l) requires SIP revisions to be subject to 
reasonable notice and public hearing prior to adoption and submittal 
by States to EPA and prohibits EPA from approving any SIP revision 
that would interfere with any applicable requirement concerning 
attainment and reasonable further progress, or any other applicable 
requirement of the CAA. CAA section 193 provides that no control 
requirement in effect in any area which is a nonattainment area for 
any air pollutant may be modified after November 15, 1990, in any 
manner unless the modification insures equivalent or greater 
emission reductions of such air pollutant.
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B. Do the rules meet the evaluation criteria?

    We are proposing action on the submitted rules listed in tables 1 
and 2 and on the requests for rescission of existing SIP rules listed 
in table 3. Table 1 lists the submitted rules that, while permit-
related, are separable from the rest of the permit-related rules and 
thus qualify for action independent of our action on the bulk of the 
permit-related rules. Table 2 lists the submitted set of rules that 
comprise the bulk of NDEP's stationary source permitting program 
(excluding review under parts C and D of the title I of the CAA). Table 
3 lists the permit-related rules (in the existing SIP) for which NDEP 
has requested rescission and for which we are proposing action.

   Table 1.--Submitted Rules That Are Proposed for Action Independent of the Rest of the Permit-Related Rules
----------------------------------------------------------------------------------------------------------------
                                                                Adoption    Submittal
           Submitted rule                      Title              date         date         Proposed  action
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NAC 445B.021........................  ``Area source''            11/03/93     01/12/06  Disapproval.
                                       defined.
NAC 445B.028........................  ``Best available           03/26/96     01/12/06  Disapproval.
                                       control technology''
                                       defined.
NAC 445B.178........................  ``Source reduction''       03/03/94     01/12/06  Disapproval.
                                       defined.
NAC 445B.196........................  ``Toxic regulated air      10/03/95     01/12/06  Disapproval.
                                       pollutant'' defined.
NAC 445B.22083......................  Construction, major        10/04/05     01/12/06  Approval.
                                       modification or
                                       relocation of plants
                                       to generate
                                       electricity using
                                       steam produced by
                                       burning of fossil
                                       fuels.
NAC 445B.250........................  Notification of            10/04/05     01/12/06  Approval.
                                       planned construction
                                       or reconstruction.
NAC 445B.252........................  Testing and sampling..     09/18/03     01/12/06  Approval.
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    The separable, submitted rules are listed in table 1 along with the 
applicable adoption and submittal dates and our proposed actions. As 
shown in table 1, we are proposing approval of the three specific 
submitted rules and disapproval of four specific submitted rules. We 
are proposing approval of NAC 445B.22083, 445B.230, and 445B.252 
because they strengthen the SIP and otherwise meet all applicable 
requirements. We are proposing disapproval of NAC 445B.021, 445B.178, 
and 445B.196 because they define terms that are not used in any of the 
other submitted rules or in any of the rules of the existing SIP and 
thus are unnecessary. We are also proposing to disapprove NAC 445B.028 
(``Best Available Control Technology'' defined) because it is not used 
in any of the other submitted rules and is used only in an existing SIP 
rule for which we are proposing to grant NDEP's rescission request.\4\ 
The TSD provides more details concerning our proposal and rationale 
with respect to each of the rules listed in table 1.
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    \4\ ``Best Available Control Technology'' (BACT) is the control 
technology requirement under EPA's Prevention of Significant 
Deterioration (PSD) regulations for pre-construction review and 
permitting of new major sources and major modifications in 
attainment or unclassifiable areas, and we would expect this 
definition to be re-submitted by NDEP when they submit their rules 
implementing PSD for approval by EPA as a SIP revision.
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    Table 2 lists the submitted rules governing application for, and 
issuance of, permits for stationary sources under NDEP jurisdiction in 
the State of Nevada, excluding rules intended to provide for review and 
permitting of major sources and major modifications under parts C and D 
of title I of the CAA. In our review of these submitted rules, we have 
identified a number of deficiencies that lead us to conclude that the 
submitted rules do not comply with the requirements of section 110 and 
40 CFR part 51, sections 51.160 through 51.164 and that form the basis 
for our proposed disapproval.

 Table 2.--Submitted Rules Governing Application for, and Issuance of, Permits for Stationary Sources Under NDEP
                                                  Jurisdiction
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               Submitted rule                               Title                  Adoption date  Submittal date
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NAC 445B.003...............................  ``Adjacent properties'' defined....        11/03/93        01/12/06
NAC 445B.0035..............................  ``Administrative revision to a             08/19/04        01/12/06
                                              Class I operating permit'' defined.
NAC 445B.007...............................  ``Affected state'' defined.........        11/03/93        01/12/06
NAC 445B.013...............................  ``Allowable emissions'' defined....        10/04/05        01/12/06
NAC 445B.014...............................  ``Alteration'' defined.............        10/03/95        01/12/06
NAC 445B.016...............................  ``Alternative operating scenarios''        10/03/95        01/12/06
                                              defined.
NAC 445B.019...............................  ``Applicable requirements'' defined        01/22/98        01/12/06
NAC 445B.035...............................  ``Class I-B application'' defined..        10/03/95        01/12/06
NAC 445B.036...............................  ``Class I source'' defined.........        08/19/04        01/12/06
NAC 445B.037...............................  ``Class II source'' defined........        09/18/01        01/12/06
NAC 445B.038...............................  ``Class III source'' defined.......        09/18/01        01/12/06
NAC 445B.044...............................  ``Construction'' defined...........        10/04/05        01/12/06
NAC 445B.046...............................  ``Contiguous property'' defined....        09/16/76        01/12/06
Sec. 2 of R096-05..........................  ``Dispersion technique'' defined...        10/04/05        01/12/06
Sec. 3 of R096-05..........................  ``Excessive concentration'' defined        10/04/05        01/12/06
NAC 445B.066...............................  ``Existing stationary source''             10/03/95        01/12/06
                                              defined.
NAC 445B.068...............................  ``Facility'' defined...............        10/03/95        01/12/06
NAC 445B.069...............................  ``Federally enforceable'' defined..        11/03/93        01/12/06
NAC 445B.070...............................  ``Federally enforceable emissions          11/03/93        01/12/06
                                              cap'' defined.

[[Page 19147]]


NAC 445B.082...............................  ``General permit'' defined.........        10/03/95        01/12/06
Sec. 4 of R096-05..........................  ``Good engineering practice stack          10/04/05        01/12/06
                                              height'' defined.
NAC 445B.087...............................  ``Increment'' defined..............        11/03/93        01/12/06
NAC 445B.093...............................  ``Major modification'' defined.....        08/19/04        01/12/06
NAC 445B.094...............................  ``Major source'' defined...........        05/10/01        01/12/06
NAC 445B.0945..............................  ``Major stationary source'' defined        08/19/04        01/12/06
NAC 445B.099...............................  ``Modification'' defined...........        10/03/95        01/12/06
NAC 445B.104...............................  ``Motor vehicle'' defined..........        05/10/01        01/12/06
Sec. 5 of R096-05..........................  ``Nearby'' defined.................        10/04/05        01/12/06
NAC 445B.108...............................  ``New stationary source'' defined..        10/03/95        01/12/06
NAC 445B.117...............................  ``Offset'' defined.................        10/03/95        01/12/06
NAC 445B.123...............................  ``Operating permit'' defined.......        11/19/02        01/12/06
NAC 445B.124...............................  ``Operating permit to construct''          11/19/02        01/12/06
                                              defined.
NAC 445B.1345..............................  ``Plantwide applicability                  08/19/04        01/12/06
                                              limitation'' defined.
NAC 445B.138...............................  ``Potential to emit'' defined......        03/26/98        01/12/06
NAC 445B.142...............................  ``Prevention of significant                11/03/93        01/12/06
                                              deterioration of air quality''
                                              defined.
NAC 445B.147...............................  ``Program'' defined................        11/03/93        01/12/06
NAC 445B.154...............................  ``Renewal of an operating permit''         11/03/93        01/12/06
                                              defined.
NAC 445B.156...............................  ``Responsible official'' defined...        11/03/93        01/12/06
NAC 445B.157...............................  ``Revision of an operating permit''        08/19/04        01/12/06
                                              defined.
NAC 445B.179...............................  ``Special mobile equipment''               05/10/01        01/12/06
                                              defined.
NAC 445B.187...............................  ``Stationary source'' defined......        05/10/01        01/12/06
NAC 445B.194...............................  ``Temporary source'' defined.......        05/10/01        01/12/06
NAC 445B.287...............................  Operating permits: General                 08/19/04        01/12/06
                                              requirements; exception;
                                              restriction on transfers.
NAC 445B.288...............................  Operating permits: Exemptions from         05/10/01        01/12/06
                                              requirements; insignificant
                                              activities.
NAC 445B.295...............................  Application: General requirements..        09/06/06        12/08/06
NAC 445B.297...............................  Application: Submission of                 08/19/04        01/12/06
                                              application and supplementary or
                                              corrected information.
NAC 445B.298...............................  Application: Official date of              08/19/04        01/12/06
                                              submittal.
NAC 445B.305...............................  Operating permits: Imposition of           10/03/95        01/12/06
                                              more stringent standards for
                                              emissions.
NAC 445B.308...............................  Prerequisites and conditions for           09/06/06        12/08/06
                                              issuance of operating permits:
                                              Environmental evaluation;
                                              compliance with control strategy;
                                              exemption from environmental
                                              evaluation.
NAC 445B.310...............................  Environmental evaluation:                  09/06/06        12/08/06
                                              Applicable sources.
NAC 445B.311...............................  Environmental evaluation: Required         09/06/06        12/08/06
                                              information.
NAC 445B.313...............................  Method for determining heat input:         11/19/02        01/12/06
                                              Class I sources.
NAC 445B.3135..............................  Method for determining heat input:         11/19/02        01/12/06
                                              Class II sources.
NAC 445B.314...............................  Method for determining heat input:         11/19/02        01/12/06
                                              Class III sources.
NAC 445B.315...............................  Contents of operating permits:             11/19/02        01/12/06
                                              Exception for operating permits to
                                              construct; required conditions.
NAC 445B.318...............................  Operating permits: Separate permit         09/06/06        12/08/06
                                              required for each source; form of
                                              application; issuance or denial of
                                              permit; posting of permit.
NAC 445B.319...............................  Operating permits: Administrative          08/19/04        01/12/06
                                              amendment.
NAC 445B.325...............................  Operating permits: Termination,            01/22/98        01/12/06
                                              reopening and revision, revision,
                                              or revocation and reissuance.
NAC 445B.326...............................  Operating permits: Assertion of            11/03/93        01/12/06
                                              emergency as affirmative defense
                                              to action for noncompliance.
NAC 445B.331...............................  Request for change of location of          09/06/06        12/08/06
                                              emission unit.
NAC 445B.3361..............................  General requirements...............        09/06/06        12/08/06
NAC 445B.3363..............................  Operating permit to construct:             09/06/06        12/08/06
                                              Application.
NAC 445B.33637.............................  Operating permit to construct for          08/19/04        01/12/06
                                              approval of plantwide
                                              applicability limitation:
                                              Application.
NAC 445B.3364..............................  Operating permit to construct:             09/06/06        12/08/06
                                              Review of application and
                                              determination of completeness by
                                              director; notice.
NAC 445B.3365..............................  Operating permit to construct:             09/06/06        12/08/06
                                              Required conditions.
NAC 445B.33656.............................  Operating permit to construct for          09/06/06        12/08/06
                                              approval of plantwide
                                              applicability limitation: Required
                                              conditions and information.
NAC 445B.3366..............................  Operating permit to construct:             09/06/06        12/08/06
                                              Expiration; extension.
NAC 445B.3368..............................  Application: Additional                    08/19/04        01/12/06
                                              requirements; exception.
NAC 445B.3375..............................  Class I-B application: Filing              09/06/06        12/08/06
                                              requirement.
NAC 445B.3395..............................  Review of application and                  09/06/06        12/08/06
                                              determination of completeness by
                                              director; notice; expiration of
                                              permit.
NAC 445B.340...............................  Prerequisites to issuance, revision        01/22/98        01/12/06
                                              or renewal of permit.
NAC 445B.342...............................  Revision of permit: Exception when         09/06/06        12/08/06
                                              making certain changes;
                                              notification of changes.
NAC 445B.3425..............................  Minor revision of permit...........        08/19/04        01/12/06
NAC 445B.344...............................  Significant revision of permit.....        11/19/02        01/12/06
NAC 445B.3441..............................  Administrative revision of permit          09/06/06        12/08/06
                                              to incorporate conditions of
                                              certain permits to construct.

[[Page 19148]]


NAC 445B.3443..............................  Renewal of permit..................        02/26/04        01/12/06
NAC 445B.3453..............................  Application: General requirements..        11/19/02        01/12/06
NAC 445B.3457..............................  Application: Determination of              09/06/06        12/08/06
                                              completeness by director.
NAC 445B.346...............................  Required contents of permit........        10/03/95        01/12/06
NAC 445B.3465..............................  Application for revision...........        10/04/05        01/12/06
NAC 445B.3473..............................  Renewal of permit..................        02/26/04        01/12/06
NAC 445B.3477..............................  Class II general permit............        11/19/02        01/12/06
NAC 445B.3485..............................  Application: General requirements..        09/06/06        12/08/06
NAC 445B.3487..............................  Application: Determination of              09/06/06        12/08/06
                                              completeness by director.
NAC 445B.3489..............................  Required content of permits........        09/06/06        12/08/06
NAC 445B.3493..............................  Application for revision...........        09/18/01        01/12/06
NAC 445B.3497..............................  Renewal of permits.................        02/26/04        01/12/06
----------------------------------------------------------------------------------------------------------------

    First, we find that certain submitted rules use undefined terms, 
contain incorrect citations, rely on rules or statutory provisions that 
have not been submitted for approval as part of the SIP, or multiple 
versions of the same rule were included in the same submittal, and thus 
are unnecessarily ambiguous. Specifically, NAC 445B.3366 relies on the 
term, ``commence,'' that is not defined in the SIP for contexts outside 
of CAA section 111. NAC 445B.069 includes incorrect citations to EPA 
regulations. The following submitted rules rely on rules or statutory 
provisions that have not been submitted: NAC 445B.287 (citing 
subsection (2)), NAC 445B.104 (citing NRS 485.050), NAC 445B.179 
(citing NRS 482.123), and NAC 445B.311 (citing 445B.083). More than one 
version of the following rules was submitted on December 8, 2006: NAC 
445B.308, NAC 445B.3363, and NAC 445B.3364. NDEP must define the 
relevant term, correct the citations, submit the relevant rules and 
statutory provisions for approval into the SIP, and submit a single 
version of those rules for which multiple versions were submitted.
    Second, the definition of ``potential to emit'' in submitted rule 
NAC 445B.138 must be revised to require effective limits and to include 
criteria by which a limit is judged to be practicably enforceable by 
NDEP.
    Third, NDEP's stationary source program may not be as inclusive as 
required under the CAA depending upon whether the exclusion of 
``special mobile equipment'' from the definition of ``stationary 
source'' in submitted rule NAC 445B.187 extends to engines and vehicles 
that are not considered to be ``nonroad.'' Absent a satisfactory 
explanation by NDEP, the definition must be amended accordingly.
    Fourth, the method for determining heat input for class I sources 
in submitted rule NAC 445B.313 must be amended to require combustion 
sources to make applicability determinations based on the maximum heat 
input.
    Fifth, NAC 445B.331 (``Request for change of location of emission 
unit'') must be amended to limit its applicability to location changes 
within the confines of the existing stationary source at which the 
emission unit is originally permitted. Relocation of an emission unit 
to a site outside of the existing source at which it is originally 
permitted should trigger new source review.
    Sixth, the submitted rule NAC 445B.3477 (``Class II general 
permit'') does not identify the requirements for general permits, the 
public participation requirements for issuing such permits, nor the 
criteria by which stationary sources may qualify for such a permit. To 
be approved, the rule must be amended accordingly.
    Seventh, NAC 445B.311 allows for NDEP to authorize use of a 
modification or substitution of a model specified in appendix W of 40 
CFR part 51 without EPA approval and must be amended accordingly to 
comply with 40 CFR 51.160(f).
    Eighth, to comply with 40 CFR 51.161 (``Public availability of 
information''), the relevant submitted rules must be amended to provide 
for adequate public review of new or modified class II sources. Under 
submitted rule NAC 445B.3457 (``Application: Determination of 
completeness by Director''), NDEP may initiate public notice and 
comment if, after review of an application for a class II permit, NDEP 
determines that the change to the stationary source results in a 
significant change in air quality at any location where the public is 
present on a regular basis. Such a provision does not provide well-
defined objective criteria for determining when public notice is 
required to meet the requirements of 40 CFR 51.161.
    With respect to issue of public review of proposed permits, the 
submitted provisions for class I sources are generally acceptable with 
one exception; NAC 445B.3364 must be amended to specifically require 
that copies of NDEP's review and preliminary intent to issue or deny a 
class I operating permit be sent to Washoe County Health District for 
those sources proposed to be constructed or modified in Washoe County 
and to the Clark County Department of Air Quality and Environmental 
Management in Clark County. Also, the rules must be amended to provide 
for public participation for sources of lead with PTE's greater than 5 
tons per year. See 40 CFR 51.100(k)(2) and 40 CFR 51.161(d).
    Ninth, while the affirmative defense provision in NAC 445B.326 is 
acceptable as applied to permit conditions, it is not approvable under 
CAA section 110(a)(2) if applied to technology-based emission 
limitations approved into the SIP. Because of the potential for 
confusion, NAC 445B.326 should be withdrawn from further consideration 
as part of the Nevada SIP or must be revised to clarify that the 
affirmative defense applies only to actions brought for noncompliance 
of permit conditions and not to technology-based emission limitations 
approved into the SIP.
    Lastly, while the submitted rules include a specific prohibition on 
approving a permit for any source where the degree of emission 
limitation required is affected by that amount of the stack height as 
exceeds good engineering practice stack height or any other dispersion 
technique, the relevant provision (i.e., 445B.308(3)) includes 
director's discretion (* * * if ``the Director determines'' * * *), 
which must be removed in order for EPA to approve the rules as meeting 
the requirements of 40 CFR 51.164.

[[Page 19149]]

    The TSD provides more details concerning our proposal and rationale 
with respect to each of the issues discussed above in connection with 
the rules listed in table 2. In the TSD, we also identify certain other 
deficiencies in the rules listed in table 2 that we do not view as 
approvability issues but that we recommend for further clarification or 
correction.
    Table 3 lists the permit-related rules in the existing SIP for 
which NDEP has requested rescission and for which we are proposing 
action. Table 3 lists these rules along with the dates they were 
submitted to EPA and the dates on which we published approval of them 
into the SIP in the Federal Register. As shown in table 3, we are 
proposing approval of rescission requests for NAQR article 13.1.3(3) 
and NAC 445.706(2) and proposing disapproval of rescission requests for 
NAQR article 1.60 and 1.72 and NAC 445.715.

 Table 3.--Existing SIP Rules for Which the State Has Requested Rescission and for Which We Are Proposing Action
----------------------------------------------------------------------------------------------------------------
                                                                        Approval date and
        Existing SIP rule                Title         Submittal date           FR            Proposed  action
----------------------------------------------------------------------------------------------------------------
Article 1.60....................  Effective date.....        12/29/78  08/27/81 at 46 FR    Disapproval.
                                                                        43141.
NAQR Article 1.72...............  Existing facility..        12/10/76  08/21/78 at 43 FR    Disapproval.
                                                                        36932.
NAQR Article 13, subsection       [BACT requirement          03/17/80  04/14/81 at 46 FR    Approval.
 13.1.3(3).                        in attainment                        21758.
                                   areas].
NAC 445.706(2)..................  [payment of fees]..        10/26/82  03/27/84 at 49 FR    Approval.
                                                                        11626.
NAC 445.715.....................  Operation permits:         10/26/82  03/27/84 at 49 FR    Disapproval.
                                   Revocation.                          11626.
----------------------------------------------------------------------------------------------------------------

    We are proposing approval of the rescission request for NAQR 
article 13.1.3(3), which applies a control technology requirement 
defined by Best Available Control Technology (BACT) to certain new 
sources in attainment areas for the following reasons:
     Air pollution permit programs developed by States under 
section 110 of the Clean Air Act are not required to impose a BACT 
requirement on new sources in attainment areas so long as the program 
is not intended to satisfy part C of title I of the Act;
     Rescission of the SIP BACT requirement would only act 
prospectively and would not relax emission limits in any existing 
permits;
     Rescission would not eliminate the BACT requirement for 
all new sources in Nevada given that BACT continues to be a requirement 
for new major sources and major modifications in attainment areas under 
EPA's prevention of significant deterioration regulations at 40 CFR 
52.21 (see 40 CFR 52.1485); and
     We find no evidence to suggest that Nevada is relying on 
the BACT requirement in NAQR article 13.1.3(3) to maintain the National 
Ambient Air Quality Standards (NAAQS) in any area.
    Thus, we find that rescission of the BACT requirement in NAQR 
article 13.1.3(3) from the SIP would not interfere with continued 
attainment of the NAAQS and can therefore be approved under CAA section 
110(l).
    We are proposing approval of the rescission request for NAC 
445.706(2), which relates to permit fees, because permit fee rules are 
no longer required for the NDEP portion of the Nevada SIP under CAA 
section 110(a)(2)(L) given our approval of NDEP's title V program (and 
related fee requirements). Our proposed approval of the rescission 
requests for NAQR article 13.1.3(3) and NAC 445.706(2) is contingent 
upon receipt of documentation from NDEP of notice and public hearing 
for repeal or rescission of these provisions as required under CAA 
section 110(l) for all SIP revisions.
    We are proposing disapproval of the rescission request for NAQR 
article 1.60 because it defines a term, ``effective date,'' that is 
relied upon by other terms in the existing SIP that NDEP intends to 
retain, such as ``existing source'' as defined in NAQR article 1.73 and 
``new source'' as defined in NAQR article 1.114. We find that the 
rescission requests for NAQR article 1.72 and NAC 445.715 could 
otherwise be approved but for the fact that we are proposing 
disapproval of the submitted set of rules comprising NDEP's current 
stationary source permitting program (listed in table 2, above). NAQR 
article 1.72 and NAC 445.715 need to be retained in connection with the 
stationary source permitting program as approved in the existing SIP, 
and thus we are proposing to disapprove their related rescission 
requests at this time. The TSD provides more details concerning our 
proposal and rationale with respect to each of the rules listed in 
table 3.

C. Public Comment and Proposed Action

    Under CAA section 110(k)(3) and for the reasons stated above, EPA 
is proposing, under the Clean Air Act, approval of certain revisions to 
the applicable Nevada SIP and full disapproval of certain other 
revisions. These revisions involve State rules governing applications 
for, and issuance of, permits for stationary sources, but not including 
pre-construction review and permitting of major sources and major 
modifications under parts C and D of title I of the Clean Air Act. NDEP 
submitted the rules that are the subject of this proposal on January 
12, 2006 and re-submitted amendments to some of these rules on December 
8, 2006.
    Specifically, we are proposing approval of three specific submitted 
rules and disapproval of one such rule (see table 1, above); full 
disapproval of the rest of the submitted rules that comprise NDEP's 
stationary source permitting program (see table 2, above); and approval 
of two, and disapproval of three, requests for rescission of rules from 
the existing SIP (see table 3, above). The rescission requests for 
which we propose approval are contingent upon receipt of public notice 
and hearing documentation from the State. We will accept comments from 
the public on this proposal for the next 60 days.
    Unless we receive convincing new information during the comment 
period, we intend to publish a final rule that will approve three rules 
shown in table 1, above, as revisions to the Nevada SIP;\5\ disapprove 
one rule shown in table 1 and all of the submitted rules shown in table 
2, above; rescind two rules shown in table 3, above, from the Nevada 
SIP (contingent upon receipt of public notice and hearing 
documentation); and retain three rules (also shown in table 3) in the 
Nevada SIP. If we finalize our disapproval of the relevant submitted 
rules, we will not be imposing sanctions under CAA section

[[Page 19150]]

179 and 40 CFR 52.31 because the State of Nevada has an approved 
stationary source permitting program in the applicable SIP and is not 
required under the Clean Air Act to submit its updated stationary 
source permitting program to EPA for approval.\6\
---------------------------------------------------------------------------

    \5\ Final approval of these rules would supersede the following 
rules in the applicable SIP (superseding rules shown in parentheses) 
upon the established compliance date for any new or amended 
requirements in the superseding rules: NAC 445B.22083, as submitted 
on November 30, 2003 (NAC 445B.22083); NAQR article 2.16.1 (NAC 
445B.250); and NAC 445.682 (NAC 445B.252).
    \6\ In this context, we are referring to NDEP's program for 
issuing pre-construction permits for all new sources and 
modifications other than those for which part C (i.e., PSD) or part 
D (i.e., Nonattainment NSR) of title I of the CAA apply and for 
issuing operating permits under title I of the CAA (not title V).
---------------------------------------------------------------------------

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 or disapprove new or amended state 
rules, or to approve or disapprove requests for rescission of 
previously-approved 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 or disapprove 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 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 or disapprove new or amended state rules, or 
to approve or disapprove requests for rescission of previously-approved 
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 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, Lead, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides.

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

    Dated: April 4, 2007.
Jane Diamond,
Acting Regional Administrator, Region IX.
 [FR Doc. E7-7285 Filed 4-16-07; 8:45 am]

BILLING CODE 6560-50-P
