[Federal Register Volume 71, Number 169 (Thursday, August 31, 2006)]
[Proposed Rules]
[Pages 51793-51796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7320]
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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: www.regulations.gov. Follow the on-
line instructions.
2. E-mail: [email protected].
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 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 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 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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