[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Proposed Rules]
[Pages 19144-19150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7285]
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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: www.regulations.gov. Follow the on-
line instructions.
2. E-mail: [email protected].
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
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: Laura Yannayon, EPA Region IX, (415)
972-3534, [email protected].
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
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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
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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\
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\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]
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