# Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Requests for Rescission

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3AE6-22408

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 3, 2007
- **Citation:** 72 FR 11

## Text

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2006-0590; FRL-8260-1]
Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Requests for Rescission

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve certain revisions to the Nevada State Implementation Plan (SIP) and to disapprove certain other revisions. These revisions involve rules and statutory provisions for which the State of Nevada is requesting rescission. EPA is also taking final action to approve certain updated statutory provisions submitted by the State of Nevada as replacements for outdated statutory provisions in the applicable plan. These actions were proposed in the
Federal Register
on August 28, 2006. The intended effect is to rescind unnecessary provisions from the applicable plan, retain necessary provisions, and approve replacement provisions for certain statutes for which rescissions are disapproved.

DATES:

Effective Date:
This rule is effective on February 2, 2007.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2006-0590 for this action. The index to the docket is available electronically at
http://regulations.gov
and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (
e.g.
, copyrighted material), and some may not be publicly available in either location (
e.g.
, CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT
section.

FOR FURTHER INFORMATION CONTACT:

Julie A. Rose, EPA Region IX, (415) 947-4126,
rose.julie@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents

I. Proposed Action

II. Public Comments and EPA Responses

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On August 28, 2006 (71 FR 50875), EPA proposed approval of certain revisions to the Nevada SIP and disapproval of certain other revisions. These revisions involve rules and statutory provisions previously approved into the Nevada SIP but for which the State of Nevada is requesting rescission. EPA also proposed approval of certain updated statutory provisions submitted by the State of Nevada as replacements for outdated statutory provisions in the applicable plan. Our August 28, 2006 proposed rule represents one of a series of rulemakings we are conducting on a large SIP revision submitted by the State of Nevada on January 12, 2006 in which the State requests approval of numerous new or amended rules and statutory provisions and requests rescission of numerous other rules and statutory provisions in the existing SIP. Our August 28, 2006 proposed rule sets forth our evaluation and proposed action on the vast majority of the rescission requests included in the State's January 12, 2006 SIP revision submittal.

In our August 28, 2006 proposed rule, we made final approval of those requests for rescission that we proposed to approve contingent upon the receipt of certain public notice and hearing documentation from the State of Nevada. The appropriate documentation has been submitted for the provisions listed below in table 1, and we are taking final action on them today.
1

A separate final rule will be published for the remainder of the provisions for which rescission was requested (and proposed for approval) after the public notice and hearing documentation has been submitted. A third final rule will be published for the rescission of the Federal implementation plan promulgated by EPA at 40 CFR 52.1475 (c), (d) and (e), which was also proposed for rescission in our August 28, 2006 proposed rule.

1
Table 1 in this notice differs from the corresponding table in the proposed rule in that it does not include 12 rules or statutory provisions for which the State has not yet provided documentation related to public participation and for which final action is being deferred pending receipt of this documentation from the State. These 12 rules or statutory provisions are listed in table 4 of this notice. In addition, we are finalizing the proposed rescission of the Federal implementation plan at 40 CFR 52.1475(c), (d), and (e), which relates to the former Kennecott Copper Company smelter located in White Pine County, in a separate notice.

The majority of the provisions in table 1 represents defined terms that, although approved by EPA and therefore made part of the applicable SIP, are not relied upon by any rule or statutory provision in the existing applicable SIP or in any rule or statutory provision included in the SIP revision submitted on January 12, 2006 and thus are unnecessary and appropriate for rescission. For the other SIP provisions listed in table 1, we proposed approval of the State's rescission requests because we found them to be unnecessary because they are not needed generally in a SIP under CAA section 110(a)(2) or under 40 CFR part 51 or because there are other federally enforceable provisions that would provide equivalent or greater control. Our proposed rule and related Technical Support Document (TSD) contain more information on these SIP provisions and our evaluation of the related rescission requests.

Table 1.—SIP Provisions for Which the State's Rescission Request Is Approved

SIP provision
Title
Submittal date
Approval date

NAC 445.440
Aluminum equivalent
10/26/82
03/27/84

NAC 445.442
Anode bake plant
10/26/82
03/27/84

NAC 445.443
Asphalt concrete plant
10/26/82
03/27/84

NAC 445.446
Barite dryer
10/26/82
03/27/84

NAC 445.451
Basic oxygen process furnace
10/26/82
03/27/84

NAC 445.453
Bituminous coal
10/26/82
03/27/84

NAC 445.454
Blast furnace
10/26/82
03/27/84

NAC 445.455
Blowing tap
10/26/82
03/27/84

NAC 445.456
Brass or bronze
10/26/82
03/27/84

NAC 445.459
Calcium carbide
10/26/82
03/27/84

NAC 445.460
Calcium silicon
10/26/82
03/27/84

NAC 445.461
Capture system
10/26/82
03/27/84

NAC 445.462
Charge chrome
10/26/82
03/27/84

NAC 445.463
Charge period
10/26/82
03/27/84

NAC 445.465
Coal preparation plant
10/26/82
03/27/84

NAC 445.466
Coal processing and conveying equipment
10/26/82
03/27/84

NAC 445.467
Coal refuse
10/26/82
03/27/84

NAC 445.468
Coal storage system
10/26/82
03/27/84

NAC 445.469
Coke burn-off
10/26/82
03/27/84

NAC 445.474
Commercial fuel oil
10/26/82
03/27/84

NAC 445.475
Complex source
10/26/82
03/27/84

NAC 445.476
Condensate
10/26/82
03/27/84

NAC 445.481
Control device
10/26/82
03/27/84

NAC 445.483
Copper converter
10/26/82
03/27/84

NAC 445.484
Custody transfer
10/26/82
03/27/84

NAC 445.485
Cyclonic flow
10/26/82
03/27/84

NAC 445.487
Diesel fuel
10/26/82
03/27/84

NAC 445.489
Direct shell evacuation system
10/26/82
03/27/84

NAC 445.490
Drilling and production facility
10/26/82
03/27/84

NAC 445.491
Dross reverberatory furnace
10/26/82
03/27/84

NAC 445.493
Dust handling equipment
10/26/82
03/27/84

NAC 445.494
Dusts
10/26/82
03/27/84

NAC 445.495
Electric arc furnace
10/26/82
03/27/84

NAC 445.496
Electric furnace
10/26/82
03/27/84

NAC 445.497
Electric smelting furnace
10/26/82
03/27/84

NAC 445.498
Electric submerged arc furnace
10/26/82
03/27/84

NAC 445.502

Equivalent P
2
O
5
feed

10/26/82
03/27/84

NAC 445.503

Equivalent P
2
O
5
stored

10/26/82
03/27/84

NAC 445.509
Ferrochrome silicon
10/26/82
03/27/84

NAC 445.510
Ferromanganese silicon
10/26/82
03/27/84

NAC 445.511
Ferrosilicon
10/26/82
03/27/84

NAC 445.514
Fossil fuel-fired steam generating unit
10/26/82
03/27/84

NAC 445.515
Fresh granular triple superphosphate
10/26/82
03/27/84

NAC 445.518
Fuel gas
10/26/82
03/27/84

NAC 445.519
Fuel gas combustion device
10/26/82
03/27/84

NAC 445.522
Furnace charge
10/26/82
03/27/84

NAC 445.523
Furnace cycle
10/26/82
03/27/84

NAC 445.524
Furnace power input
10/26/82
03/27/84

NAC 445.526
Granular diammonium phosphate plant
10/26/82
03/27/84

NAC 445.527
Granular triple super-phosphate storage facility
10/26/82
03/27/84

NAC 445.528
Heat time
10/26/82
03/27/84

NAC 445.529
High-carbon ferrochrome
10/26/82
03/27/84

NAC 445.530
High level of volatile impurities
10/26/82
03/27/84

NAC 445.531
High terrain
10/26/82
03/27/84

NAC 445.532
Hydrocarbon
10/26/82
03/27/84

NAC 445.534
Isokinetic sampling
10/26/82
03/27/84

NAC 445.539
Low terrain
10/26/82
03/27/84

NAC 445.543
Meltdown and refining
10/26/82
03/27/84

NAC 445.544
Meltdown and refining period
10/26/82
03/27/84

NAC 445.546
Molybdenum
10/26/82
03/27/84

NAC 445.547
Molybdenum processing plant
10/26/82
03/27/84

NAC 445.551
Nitric acid production unit
10/26/82
03/27/84

NAC 445.566
Petroleum liquids
10/26/82
03/27/84

NAC 445.567
Petroleum refinery
10/26/82
03/27/84

NAC 445.568
Pneumatic coal-cleaning equipment
10/26/82
03/27/84

NAC 445.572
Potroom
10/26/82
03/27/84

NAC 445.573
Potroom group
10/26/82
03/27/84

NAC 445.576
Primary aluminum reduction plant
10/26/82
03/27/84

NAC 445.577
Primary control system
10/26/82
03/27/84

NAC 445.578
Primary copper smelter
10/26/82
03/27/84

NAC 445.579
Primary lead smelter
10/26/82
03/27/84

NAC 445.580
Primary zinc smelter
10/26/82
03/27/84

NAC 445.582
Process gas
10/26/82
03/27/84

NAC 445.583
Process upset gas
10/26/82
03/27/84

NAC 445.586
Product change
10/26/82
03/27/84

NAC 445.587
Proportional sampling
10/26/82
03/27/84

NAC 445.591
Refinery process unit
10/26/82
03/27/84

NAC 445.593
Reid vapor pressure
10/26/82
03/27/84

NAC 445.594
Reverberatory furnace
10/26/82
03/27/84

NAC 445.595
Reverberatory smelting furnace
10/26/82
03/27/84

NAC 445.598
Roof monitor
10/26/82
03/27/84

NAC 445.600
Run-of-pile triple superphosphate
10/26/82
03/27/84

NAC 445.602
Secondary control system
10/26/82
03/27/84

NAC 445.603
Secondary lead smelter
10/26/82
03/27/84

NAC 445.604
Shop
10/26/82
03/27/84

NAC 445.605
Shop opacity
10/26/82
03/27/84

NAC 445.608
Silicomanganese
10/26/82
03/27/84

NAC 445.609
Silicomanganese zirconium
10/26/82
03/27/84

NAC 445.610
Silicon metal
10/26/82
03/27/84

NAC 445.611
Silvery iron
10/26/82
03/27/84

NAC 445.614
Sinter bed
10/26/82
03/27/84

NAC 445.615
Sintering machine
10/26/82
03/27/84

NAC 445.616
Sintering machine discharge end
10/26/82
03/27/84

NAC 445.619
Smelting
10/26/82
03/27/84

NAC 445.620
Smelting furnace
10/26/82
03/27/84

NAC 445.626
Standard ferromanganese
10/26/82
03/27/84

NAC 445.629
Steel production cycle
10/26/82
03/27/84

NAC 445.631
Storage vessel
10/26/82
03/27/84

NAC 445.632
Structure, building, facility or installation
10/26/82
03/27/84

NAC 445.634
Sulfuric acid plant
10/26/82
03/27/84

NAC 445.635
Sulfuric acid production unit
10/26/82
03/27/84

NAC 445.636
Superphosphoric acid plant
10/26/82
03/27/84

NAC 445.637
Tapping
10/26/82
03/27/84

NAC 445.638
Tapping period
10/26/82
03/27/84

NAC 445.639
Tapping station
10/26/82
03/27/84

NAC 445.640
Thermal dryer
10/26/82
03/27/84

NAC 445.641
Thermit process
10/26/82
03/27/84

NAC 445.642
Total fluorides
10/26/82
03/27/84

NAC 445.643
Total smelter charge
10/26/82
03/27/84

NAC 445.644
Transfer and loading system
10/26/82
03/27/84

NAC 445.645
Triple superphosphate plant
10/26/82
03/27/84

NAC 445.646
True vapor pressure
10/26/82
03/27/84

NAC 445.648
Vapor recovery system
10/26/82
03/27/84

NAC 445.652
Weak nitric acid
10/26/82
03/27/84

NAC 445.654
Wet-process phosphoric acid plant
10/26/82
03/27/84

Article 2.7.4
Confidential Information
12/10/76
08/21/78

Articles 2.10.1 and 2.10.1.1
Appeal procedures
01/28/72
05/31/72

Articles 2.10.1.2, 2.10.2 and 2.10.3
Appeal procedures
10/31/75
01/09/78

Article 3.3.4
Stop orders
01/28/72
05/31/72

Article 4.3.4
Emissions from any mobile equipment
01/28/72
05/31/72

Article 7.2.5
Basic Refractory
11/05/80
06/18/82

Article 7.2.9
Sierra Chemical Co.
11/05/80
06/18/82

Article 8.1
Primary Non-Ferrous Smelters
06/14/74
02/06/75

Articles 8.1.1, 8.1.2, & 8.1.4
Primary Non-Ferrous Smelters
10/31/75
01/09/78

Article 8.3.4
Basic
11/05/80
06/18/82

Article 16.3.1.2
Regulations controlling cement (Applying to Portland cement plants)
12/29/78
06/18/82

Articles 16.3.2, 16.3.2.1, & 16.3.2.2
Standard of particulate matter for clinker cooler (Applying to Portland cement plants)
12/29/78
06/18/82

Article 16.15
Primary lead smelters
12/29/78
06/18/82

Articles 16.15.1 to 16.15.1.2
Standard for Particulate Matter (Applying to primary lead smelters)
12/29/78
06/18/82

Articles 16.15.2 to 16.15.2.2
Standard for Opacity (Applying to primary lead smelters)
12/29/78
06/18/82

Articles 16.15.3 to 16.15.3.2
Standard for Sulfur (Applying to primary lead smelters)
12/29/78
06/18/82

Article 16.15.4
Monitoring Operations (Applying to primary lead smelters)
12/29/78
06/18/82

NAC 445.723
Existing copper smelters
10/26/82
03/27/84

NAC 445.815
Molybdenum processing plants
09/14/83
03/27/84

NAC 445.816(2) (a), (b), (c), (e), (f), (g), (h), and (i)
Processing Plants for Precious Metals
09/14/83
03/27/84

Section 13(15) and (19) of Senate Bill No. 275
[State commission of environmental protection—review recommendations of hearing board and delegation]
01/28/72
05/31/72

As noted above, in our August 28, 2006 proposed rule, we proposed to disapprove the State's request to rescind certain rules and statutory provisions from the existing SIP. These rules and statutory provisions are listed in table 2 below. We believe that retention of these provisions is appropriate to satisfy certain specific requirements for SIPs under CAA section 110(a)(2) or that retention is appropriate because the State has not provided sufficient documentation to show that rescission would not interfere with continued attainment of the national ambient air quality standards (NAAQS) as required under CAA section 110(l).

Table 2.—SIP Provisions for Which the State's Rescission Request Is Disapproved

SIP provision
Title
Submittal date
Approval date

NAC 445.436
Air contaminant
10/26/82
03/27/84

NAC 445.570
Portland cement plant
10/26/82
03/27/84

Article 1.171
Single source
12/10/76
08/21/78

NAC 445.630
Stop order
10/26/82
03/27/84

NAC 445.660
Severability
10/26/82
03/27/84

NAC 445.663
Concealment of emissions prohibited
10/26/82
03/27/84

NAC 445.665
Hazardous emissions: Order for reduction or discontinuance
10/26/82
03/27/84

NAC 445.696
Notice of violations; appearance before commission
10/26/82
03/27/84

NAC 445.697
Stop Orders
10/26/82
03/27/84

NAC 445.764
Reduction of employees' pay because of use of system prohibited
10/26/82
03/27/84

NAC 445.816(3), (4) & (5)
Processing Plants for Precious Metals
09/14/83
03/27/84

NRS 445.451*
State environmental commission: Creation; composition; chairman; quorum; salary, expenses of members; disqualification of members; technical support
12/29/78
07/10/80

NRS 445.456*
Department designated as state air pollution control agency
12/29/78
07/10/80

NRS 445.473*
Department powers and duties
12/29/78
07/10/80

NRS 445.476*
Power of department representatives to enter and inspect premises
12/29/78
07/10/80

NRS 445.498*
Appeals to commission; Notice of appeal
12/29/78
07/10/80

NRS 445.499*
Appeals to commission; Hearings
12/29/78
07/10/80

NRS 445.501*
Appeals to commission: Appealable matters; commission action; rules for appeals
12/29/78
07/10/80

NRS 445.526*
Violations: Notice and order by director; hearing; alternative procedures
09/10/75
01/24/78

NRS 445.529*
Violations: Injunctive relief
12/29/78
07/10/80

NRS 445.576*
Confidential information: Definitions; limitations on use; penalty for unlawful disclosure or use
09/10/75
01/24/78

NRS 445.581*
Power of department officers to inspect, search premises; search warrants
12/29/78
07/10/80

NRS 445.596*
Private rights and remedies not affected
12/29/78
07/10/80

NRS 445.598*
Provisions for transition in administration
12/29/78
07/10/80

NRS 445.601*
Civil penalties; fines not bar to injunctive relief, other remedies; disposition of fines
12/29/78
07/10/80

Note:
Asterisk (*) indicates applicable SIP provisions for which replacement provisions are being approved (see table 3, below).

Also as noted above, in our August 28, 2006 proposed rule, we proposed to approve certain submitted statutory provisions to supersede the corresponding outdated provisions noted with an asterisk in table 2 above. These submitted statutory provisions are listed in table 3, below. In its January 12, 2006 SIP revision submittal, NDEP requests EPA to approve new statutory provisions to replace any outdated State statutory provisions for which EPA determines that the rescission request should not be approved. Thus, consistent with the State's request, we are approving 14 specific statutory provisions, submitted by NDEP in Appendix III-E of the January 12, 2006 SIP revision submittal, to replace the corresponding statutory provisions in the applicable SIP (see table 3, below). In general, we find that the current statutory provisions listed in table 3 essentially mirror the corresponding outdated provisions in the applicable SIP and thus would not relax any existing requirement.
2

2
Because the current statutory provisions essentially mirror the outdated provisions, we view our approval of the current statutory provisions as a re-codification and, as such, we are not taking action to remedy pre-existing deficiencies in the applicable SIP. We note, however, that one of the provisions, NRS 445B.200 (“Creation and composition; chairman; quorum; compensation of members and employees; disqualification; technical support”), does not meet the related SIP requirements (CAA section 110(a)(2)(E)(ii) and CAA section 128) and could be the subject of some future EPA rulemaking, such as one under CAA section 110(k)(5).

Table 3.—Submitted Provisions Which Are Approved as Replacements for Outdated Provisions in the Applicable SIP

Submitted
provisions

Title
Submittal date

NRS 445B.200
Creation and composition; chairman; quorum; compensation of members and employees; disqualification; technical support
01/12/06

NRS 445B.205
Department designated as state air pollution control agency
01/12/06

NRS 445B.230
Powers and duties of department
01/12/06

NRS 445B.240
Power of representatives of department to enter and inspect premises
01/12/06

NRS 445B.340
Appeals to commission: notice of appeal
01/12/06

NRS 445B.350
Appeals to commission: hearings
01/12/06

NRS 445B.360
Appeals to commission: appealable matters; action by commission; regulations
01/12/06

NRS 445B.450
Notice and order by director; hearing; alternative procedures
01/12/06

NRS 445B.460
Injunctive relief
01/12/06

NRS 445B.570
Confidentiality and use of information obtained by department; penalty
01/12/06

NRS 445B.580
Officer of department may inspect or search premises; search warrant
01/12/06

NRS 445B.600
Private rights and remedies not affected
01/12/06

NRS 445B.610
Provisions for transition in administration
01/12/06

NRS 445B.640
Levy and disposition of administrative fines; additional remedies available; penalty
01/12/06

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Jennifer L. Carr and Michael Elges, Division of Environmental Protection, State of Nevada Department of Conservation & Natural Resources, by letter dated September 25, 2006. We summarize the comments and provide our responses in the paragraphs that

follow. Note that some of the comments in the September 25, 2006 letter are directed at a different EPA proposed rule also related to the State's January 12, 2006 SIP submittal and published the same week as the August 28, 2006 proposed rule. See 71 FR 51793 (August 31, 2006). Comments on the August 31, 2006 proposed rule are addressed in a separate final action published on December 11, 2006 at 71 FR 71486.

Comment #1:
The Nevada Division of Environmental Protection (NDEP) recognizes that EPA has made final approval of the rescission requests contingent upon receipt of public notice and hearing documentation from the State of Nevada and believes that it has now provided the required documentation for all of the applicable rescission requests except for 12. NDEP also comments that EPA should state that the public notice and hearing documentation submitted on February 16, 2005 was used to support the proposed rulemaking.

Response #1:
With the exception of the 12 provisions listed in table 4 below for which documentation is pending, we find that the State has now provided sufficient documentation for the applicable rescission requests and thereby met the contingency placed on their proposed approval in our August 28, 2006 proposed rule.

Table 4.—SIP Provisions for Which State's Request for Rescission Was Proposed for Approval But for Which Final Action Is Pending Receipt of Documentation of Public Participation

SIP (or FIP) provision
Title
Submittal date
Approval date

NAC 445.477
Confidential information
10/26/82
03/27/84

NAC 445.554
Nuisance
10/26/82
03/27/84

NAC 445.596
Ringelmann chart
10/26/82
03/27/84

NAC 445.617
Six-minute period
10/26/82
03/27/84

NAC 445.662
Confidential Information
10/26/82
03/27/84

NAC 445.695
Schedules for compliance
10/26/82
03/27/84

NAC 445.698
Appeal of director's decision: Application forms
10/26/82
03/27/84

NAC 445.700
Violations: Manner of paying fines
10/26/82
03/27/84

NAC 445.844
Odors
10/26/82
03/27/84

NRS 445.401
Declaration of public policy
12/29/78
07/10/80

NRS 445.466
Commission regulations: Notice and hearing
12/29/78
07/10/80

NRS 445.497
Notice of regulatory action: Requirement; method; contents of notice
12/29/78
07/10/80

We also agree that an explanation of the extent of reliance of our proposed rule on the February 16, 2005 SIP submittal is warranted. On February 16, 2005, NDEP submitted a large revision to the applicable Nevada SIP. The February 16, 2005 SIP submittal includes new and amended rules and statutory provisions as well as requests for rescission of certain rules and statutory provisions in the existing SIP. The February 16, 2005 SIP submittal also contains documentation of public participation (i.e., notice and public hearing) and adoption for all of the submitted rules through the hearing on November 30, 2004 held by the State Environmental Commission. The February 16, 2005 SIP submittal also includes documentation of public participation for 16 of the requested rule rescissions.

On January 12, 2006, NDEP submitted an amended version of the February 16, 2005 SIP submittal. The January 12, 2006 SIP submittal contains updated regulatory materials including new and amended rules adopted by the State Environmental Commission on October 4, 2005 but otherwise contains the same materials as the earlier submittal with the exception of the documentation of public participation. The January 12, 2006 SIP submittal only contains documentation of public participation for rule amendments adopted by the State Environmental Commission on October 4, 2005 but did not re-submit the public participation documentation included in the earlier submittal. Therefore, the January 12, 2006 SIP submittal supersedes the earlier SIP revision submittal dated February 16, 2005 for all purposes except for the documentation of public participation for adoption dates from November 30, 2004 and earlier. The January 12, 2006 SIP submittal did not include public participation documentation for any of the requested rescissions.

Upon request by EPA for documentation of public participation for the requested rescissions, NDEP indicated where such documentation could be found in the materials submitted as part of the February 16, 2005 SIP submittal and also provided documentation for public hearings held by the State Environmental Commission on August 28-29, 1985 during which the vast majority of the rules for which the State has requested rescission were repealed. NDEP also provided an explanation for all of the other rules and statutory provisions proposed for rescission that were not already documented in the February 16, 2005 SIP submittal or the materials for the August 28-29, 1985 public hearings (except for the 12 listed in table 4). Taken collectively, the documentation provided by NDEP is sufficient to meet the related public participation requirements under CAA section 110(l) and for us to remove the contingency in our proposed rule for all of the provisions for which rescission was requested and proposed for approval (except, as noted, for the 12 listed in table 4).

Comment #2:
NDEP disagrees with the statements made in EPA's TSD (for the August 28, 2006 proposed rule) regarding the rescission of Nevada Air Quality Regulation (NAQR) article 7.2.9. NDEP states that a new lime kiln located on the previous site of Sierra Chemical Company's lime kiln in Lincoln County would be subject to a new emission limit rather than the limit in NAQR article 7.2.9.

Response #2:
We agree. Although we proposed approval of the State's request for rescission of NAQR article 7.2.9, our discussion and evaluation of the rescission request as set forth in the TSD presumes incorrectly that the emission limit in NAQR article 7.2.9 would apply to a new kiln at this location. The stated presumption is incorrect because a new kiln at this location would be treated as a new emission unit under NDEP's new source review rules. As such, the unit-specific limit in NAQR article 7.2.9 would not apply and has become obsolete (see letter from William Frey, Senior Deputy Attorney General, State of Nevada, dated July 11, 2006). In this notice, we are taking final action to approve the State's request for rescission of NAQR article 7.2.9.

Comment #3:
NDEP acknowledges that EPA is deferring action on NAC 445.694 and intends to respond to EPA's suggestion of providing further explanation as to why the provision can be rescinded.

Response #3:
We appreciate NDEP's willingness to submit additional justification for the rescission of NAC 445.694 (“Emission discharge information”) and plan to review it when it is submitted.

III. EPA Action

No comments were submitted that change our assessment of our proposed action. Therefore, as authorized in section 110(k)(3) of the Clean Air Act, and in light of documentation for public participation provided by the State of Nevada, EPA is finalizing the approval of the State's request for rescission of the rules and statutory provisions listed in table 1, above, and the disapproval of the State's request for rescission of the rules and statutory provisions listed in table 2, above. EPA is also approving the submitted statutory provisions listed in table 3, above, into the Nevada SIP as replacements for the corresponding outdated provisions listed in table 2.

EPA is not taking final action on 12 of the provisions for which the State requests rescission and for which EPA proposed approval on August 28, 2006 (as listed in table 4, above) but will do so upon receipt of public participation documentation from the State. Lastly, we will be taking final action on our proposed rescission of the Federal implementation plan at 40 CFR 52.1475 (c), (d), and (e), which is related to the former Kennecott Copper Company smelter located in White Pine County, in a separate notice.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves or disapproves certain State requests for rescission and approves certain replacement provisions as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.
). Because this rule rescinds, retains or approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves or disapproves certain State requests for rescission and approves certain replacement provisions implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.
).

The Congressional Review Act, 5 U.S.C. 801
et seq.
, as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Federal Register
. A major rule cannot take effect until 60 days after it is published in the
Federal Register
. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 5, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

Dated: December 14, 2006.
Keith Takata,
Acting Regional Administrator, Region IX.

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

PART 52—[AMENDED]

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

Authority:

42 U.S.C. 7401
et seq.

Subpart DD—Nevada

2. Section 52.1470 is amended by adding paragraphs (b)(2), (c)(7)(i), (c)(11)(i), (c)(12)(i), (c)(14)(ix), (c)(22)(iii), (c)(25)(iii), (c)(26)(i)(B), and (c)(56)(i)(A)(8) to read as follows:

§ 52.1470
Identification of plan.

(b) * * *

(2) Previously approved on May 31, 1972 in paragraph (b) and now deleted without replacement: Articles 2.10.1, 2.10.1.1, 3.3.4, 4.3.4, and Section 13, Nos. 15 and 19 of Senate Bill No. 275.

(c) * * *

(7) * * *

(i) Previously approved on February 6, 1975 in paragraph (7) and now deleted without replacement: Article 8.1.

(11) * * *

(i) Previously approved on January 9, 1978 in paragraph (11) and now deleted without replacement: Articles 2.10.1.2, 2.10.2, 2.10.3, 8.1.1, 8.1.2, and 8.1.4.

(12) * * *

(i) Previously approved on August 21, 1978 in paragraph (12) and now deleted without replacement: Article 2.7.4.

(14) * * *

(ix) Previously approved on June 18, 1982 in paragraph (14)(viii) and now deleted without replacement: Article 16: Rules 16.3.1.2, 16.3.2, 16.3.2.1, 16.3.2.2, 16.15, 16.15.1, 16.15.1.1, 16.15.1.2, 16.15.2, 16.15.2.1, 16.15.2.2, 16.15.3, 16.15.3.1, 16.15.3.2, and 16.15.4.

(22) * * *

(iii) Previously approved on June 18, 1982 in paragraph (22)(ii) and now deleted without replacement: Articles 7.2.5, 7.2.9, and 8.3.4.

(25) * * *

(iii) Previously approved on March 27, 1984, in paragraph (25)(i)(A) and now deleted without replacement: Nevada Administrative Code (NAC) sections: 445.440, 445.442-445.443, 445.446, 445.451, 445.453-445.456, 445.459-445.463, 445.465-445.469, 445.474-445.476, 445.481, 445.483-445.485, 445.487, 445.489-445.491, 445.493-445.498, 445.502-445.503, 445.509-445.511, 445.514-445.515, 445.518-445.519, 445.522-445.524, 445.526-445.532, 445.534, 445.539, 445.543-445.544, 445.546, 445.547, 445.551, 445.566-445.568, 445.572-445.573, 445.576-445.580, 445.582-445.583, 445.586-445.587, 445.591, 445.593-445.595, 445.598, 445.600, 445.602-445.605, 445.608-445.611, 445.614-445.616, 445.619-445.620, 445.626, 445.629, 445.631-445.632, 445.634-445.646, 445.648, 445.652, 445.654, and 445.723.

(26) * * *

(i) * * *

(B) Previously approved on March 27, 1984, in paragraph (26)(i)(A) and now deleted without replacement: Nevada Administrative Code (NAC) sections 445.815 (paragraphs (1), (2)(a)(1)-(2), and (3)-(5)) and 445.816 (paragraph (2)(a)-(c) and (e)-(i)).

(56) * * *

(i) * * *

(A) * * *

(
8
) Title 40, Chapter 445B of Nevada Revised Statutes (NRS)(2003): Sections 445B.200, 445B.205, 445B.230, 445B.240, 445B.340, 445B.350, 445B.360, 445B.450, 445B.460, 445B.570, 445B.580, 445B.600, 445.610, and 445.640.

[FR Doc. E6-22408 Filed 12-29-06; 8:45 am]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE6-22408. Public record. Not legal advice.