[Federal Register: December 14, 2007 (Volume 72, Number 240)]
[Proposed Rules]
[Page 71095-71099]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de07-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2007-1155; FRL-8506-7]
Approval and Promulgation of Implementation Plans; Revisions to
the Nevada State Implementation Plan; Updated Statutory and Regulatory
Provisions; Rescissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Under the Clean Air Act, EPA is proposing to approve certain
revisions, and to disapprove certain other revisions, to the Nevada
State Implementation Plan submitted by the Nevada Division of
Environmental Protection on January 12, 2006 and June 26, 2007. The
provisions that are proposed for approval include certain definitions;
prohibitory rules; provisions related to legal authority and
enforcement; rules establishing opacity, sulfur and volatile organic
compound limits; and rescission of abbreviations. The proposed approval
of a certain statutory provision related to legal authority is
contingent upon receipt of public process documentation of adoption of
the provision as a revision to the state implementation plan. The
proposed disapproval relates to rescission of a certain definition and
rescission of a rule related to emission discharge information. EPA is
proposing this action under the Clean Air Act obligation to take action
on submittals of revisions to state implementation plans. The intended
effect is to update the Nevada state implementation plan with amended
or recodified rules and with an amended statutory provision and to
rescind a provision found to be unnecessary for further retention in
the plan.
DATES: Written comments must be received at the address below on or
before January 14, 2008.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2007-1155, by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions.
2. E-mail: steckel.andrew@epa.gov.
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 http://www.regulations.gov
, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, and EPA will not know your identity
or contact information unless you provide it in the body of your
comment. If you send e-mail directly to EPA, your e-mail address will
be automatically captured and included as part of the public comment.
If EPA cannot read your comment due to technical difficulties and
cannot contact you for clarification, EPA may not be able to consider
your comment.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Andrew Steckel, EPA Region IX, (415)
947-4115, steckel.andrew@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA. This supplementary information section is
arranged as follows:
I. The State's Submittal
A. Which SIP revisions 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. Amended Rules and Statutory Provision
B. Rule Rescissions
C. Rule Recodifications
III. Public Comment and Proposed Action
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. Which SIP revisions did the State submit?
On February 16, 2005, the Governor's designee, the Nevada Division
of Environmental Protection (NDEP), submitted a large revision to the
applicable Nevada State Implementation Plan (SIP) to EPA for approval
under section 110 of the Clean Air Act (CAA or ``Act''). The February
16, 2005 SIP submittal includes new and amended statutory provisions
and rules as well as rescissions of certain statutory provisions and
rules approved by EPA into the applicable SIP. The statutes, rules and
rescissions 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 contains documentation of public participation
(i.e., notice and public hearing) and adoption for all rule amendments
up to and including those adopted by the State Environmental Commission
on November 30, 2004.
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 4, 2005. The January 12, 2006
SIP revision submittal supersedes the regulatory portion of the earlier
SIP submittal but is not a complete re-submittal in that it did not
include the documentation of public notice and
[[Page 71096]]
hearing previously submitted. The January 12, 2006 SIP submittal does
include such documentation for amendments adopted by the commission on
October 4, 2005.
The primary purpose of these SIP submittals is to clarify and
harmonize the provisions approved by EPA under section 110 of the Act
with the current provisions adopted by the State. Because these SIP
submittals incorporate so many changes from 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 rescission requests, was
proposed on August 28, 2006 (71 FR 50875); EPA finalized action on most
of the rescissions covered by the August 28th proposal on January 3,
2007 (72 FR 11), finalized rescission of a Federal Implementation Plan
(FIP) for regulation of fugitive sulfur oxides emissions from a defunct
copper smelter on June 13, 2007 (72 FR 32529), and finalized action on
the rest of the rescissions covered by the August 28th proposal on
November 2, 2007 (72 FR 62119). A fourth action, related to monitoring
and volatile organic compound (VOC) rules, was proposed on August 31,
2006 (71 FR 51793) and finalized on December 11, 2006 (71 FR 71486). A
fifth action, related to excess emissions provisions, was proposed on
December 18, 2006 (71 FR 75690) but has not yet been finalized. A sixth
action, related to visible emissions and particulate matter rules, was
proposed on March 12, 2007 (72 FR 10960) and finalized on May 8, 2007
(72 FR 25971). A seventh action, related to permitting-related rules,
was proposed on April 17, 2007 (72 FR 19144) but has not been
finalized.
Upon publication of the seventh action cited above, we have at
least proposed action on all of the new or amended rules submitted by
NDEP on January 12, 2006, except for Nevada Administrative Code (NAC)
NAC 445B.227 (``Prohibited conduct: Operation of source without
required equipment; removal or modification of required equipment:
modification of required procedure'') and NAC 445B.200 (`` `Violation'
defined''). We include NAC 445B.227 in today's proposed rule. We will
take action on NAC 445B.200, which is a permitting-related definition,
in a separate rulemaking.
Also, upon publication of the seventh action cited above, we have
at least proposed action on all of the rescissions submitted by NDEP on
January 12, 2006 except for rule 25 of general order number 3 of the
Nevada Public Service Commission, NAC 445.655 (``Abbreviations''), NAC
445.694 (``Emission discharge information''), and Nevada Revised
Statutes (NRS) 704.820 to 704.900 (``Construction of utility
facilities: utility environmental protection act''). We include the
rescissions of NAC 445.655 (``Abbreviations'') and NAC 445.694
(``Emission discharge information'') in today's proposed rule. We will
take action NDEP's rescissions of rule 25 of general order number 3 and
NRS 704.820 to 704.900, which are permitting-related provisions, in a
separate rulemaking.
NDEP has submitted a number of SIP revisions supplementing or
superseding portions of the January 12, 2006 SIP submittal, but the
only relevant supplemental SIP revision for the purposes of this
rulemaking is the one submitted on June 26, 2007. NDEP organized the
June 26, 2007 SIP submittal into four parts. The first part contains
public participation documentation for 11 rescissions that we proposed
to approve in our August 28, 2006 proposed rule. We took final action
on the 11 rescissions on November 2, 2007 (72 FR 62119). The second
part contains amended rules and an amended statutory provision that
would replace corresponding existing provisions in the Nevada SIP. In
the third part, NDEP requests rescission of existing rule NAC 445.436
(`` `Air contaminant' defined'') from the SIP. The fourth part contains
recodifications of rules recently approved by EPA into the SIP. We
include the second, third, and fourth parts of NDEP's June 26, 2007 SIP
submittal in this rulemaking.
Table 1 lists amended rules or statutory provisions intended to
replace early 1980's versions of these provisions. The provisions
listed in table 1 include NAC 445B.227, which was submitted on January
12, 2006, and the seven amended rules and one amended statutory
provision submitted by NDEP on June 26, 2007.
Table 1.--Submitted Rules and Statutory Provision
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Submitted NAC or NRS Title Adoption date Submittal date
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NAC 445B.172........................ ``Six-Minute Period'' 09/16/76................ 06/26/07
defined.
NAC 445B.190........................ ``Stop order'' defined. 11/03/93................ 06/26/07
NAC 445B.220........................ Severability........... 09/06/06................ 06/26/07
NAC 445B.225........................ Prohibited conduct: 10/03/95................ 06/26/07
Concealment of
emissions.
NAC 445B.227........................ Prohibited conduct: 10/03/95................ 01/12/06
Operation of source
without required
equipment; removal or
modification of
required equipment:
Modification of
required procedure.
NAC 445B.229........................ Hazardous emissions: 10/03/95................ 06/26/07
Order for reduction or
discontinuance.
NAC 445B.275........................ Violations: Acts 03/08/06................ 06/26/07
constituting; notice.
NAC 445B.277........................ Stop orders............ 03/08/06................ 06/26/07
NRS 445B.310........................ Limitations on No adoption date........ 06/26/07
enforcement of federal
and state regulations
concerning indirect
sources.
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Table 2 lists three rules that NDEP seeks to rescind from the
existing SIP. NDEP's rescission of NAC 445.655 and NAC 445.694 are
included in the January 12, 2006 SIP submittal, and NDEP's rescission
of NAC 445.436 is included in the June 26, 2007 SIP submittal.
[[Page 71097]]
Table 2.--Requested Rescissions
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SIP rule Title Submittal date Approval date
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NAC 445.436......................... ``Air contaminant'' 10/26/82................ 06/26/84
defined.
NAC 445.655......................... Abbreviations.......... 10/26/82................ 06/26/84
NAC 445.694......................... Emission discharge 10/26/82................ 06/26/84
information.
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Table 3 lists rule recodifications submitted by NDEP to EPA on June
26, 2007 to replace corresponding SIP rules recently approved by EPA in
the Nevada SIP. The recodified rules reflect the January 2007 update to
chapter 445B of the Nevada Administrative Code (NAC), as published by
the Nevada Legislative Counsel Bureau.
Table 3.--Submitted Rule Recodifications
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Recodified rule Title Submittal date
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NAC 445B.001................... Definitions............ 06/26/07
NAC 445B.063................... ``Excess emissions'' 06/26/07
defined.
NAC 445B.153................... ``Regulated air 06/26/07
pollutant'' defined.
NAC 445B.22017................. Visible emissions: 06/26/07
Maximum opacity;
determination and
monitoring of opacity.
NAC 445B.2202.................. Visible emissions: 06/26/07
Exceptions for
stationary sources.
NAC 445B.22043................. Sulfur emissions: 06/26/07
Calculation of total
feed sulfur.
NAC 445B.2205.................. Sulfur emissions: Other 06/26/07
processes which emit
sulfur.
NAC 445B.22093................. Organic solvents and 06/26/07
other volatile
compounds.
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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 recodified 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 at
various times between 1975 and 1984. Since 1984, EPA had 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 was often quite different
from the SIP version enforceable by EPA. The difference between the two
sets of rules is sometimes referred to as the ``SIP gap,'' and closing
the gap was one of the primary motivations behind NDEP's comprehensive
SIP update that produced the February 16, 2005 and January 12, 2006 SIP
submittals followed by supplemental SIP submittals such as the June 26,
2007 SIP submittal.
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 certain provisions,
rescissions, and recodifications contained in NDEP's January 12, 2006
and June 26, 2007 SIP revision submittals. The provisions submitted for
approval include updated definitions; updated administrative,
enforcement, and prohibitory rules; and a statutory provision related
to legal authority. The rescissions relate to a certain definition,
abbreviations, and a rule involving emission discharge information. The
rule recodifications involve minor changes to rule titles and
historical notes in certain definitions, particulate matter rules,
sulfur emission rules, and a volatile organic compound rule. 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
We reviewed the provisions, rescissions, and recodifications
submitted by NDEP that are listed in the three tables above for
compliance with CAA requirements for SIPs in general as set forth in
CAA section 110(a)(2) and 40 CFR part 51 and also for compliance with
requirements for SIP revisions under CAA section 110(l).\2\ Our
consideration of the rules submitted on January 12, 2006 and June 26,
2007, and evaluated herein, takes into account the public participation
documentation contained in the February 16, 2005 and January 12, 2006
SIP submittals. For the submitted rule recodifications, our review is
cursory in nature consistent with EPA memorandum, ``Review of State
Regulation Recodifications,'' from Johnnie L. Pearson, Chief, Regional
Activities Branch, EPA Office of Air Quality Planning and Standards,
dated February 12, 1990.
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\2\ CAA section 110(l) states: ``Each revision to an
implementation plan submitted by a State under this chapter shall be
adopted by such State after reasonable notice and public hearing.
The Administrator shall not approve a revision of a plan if the
revision would interfere with any applicable requirement concerning
attainment and reasonable further progress (as defined in section
7501 of this title), or any other applicable requirement of this
chapter.''
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A. Amended Rules and Statutory Provision
Based on a review of applicable CAA and EPA regulatory requirements
and a comparison with the corresponding existing SIP provisions that
they would replace, we propose to approve all of the
[[Page 71098]]
provisions listed in table 1 above. In general, the submitted
provisions mirror the corresponding provisions in the existing SIP or
would strengthen the SIP by eliminating exceptions, deleting
limitations, or expanding legal authority, and thereby would not
interfere with attainment or maintenance of the NAAQS.
With respect to public participation requirements under CAA section
110(l), we find that adequate documentation has been submitted by NDEP
(or otherwise acquired by EPA) to show compliance with CAA procedural
requirements for SIP revisions under CAA section 110(l) except for NRS
445B.310. Thus, our proposed approval of NRS 445B.310 is contingent
upon receipt of documentation of notice and opportunity for public
hearing on adoption of NRS 445B.310 as a revision to the Nevada SIP.\3\
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\3\ In so doing, we recognize that we have not consistently
required the State of Nevada to submit public participation
documentation for SIP revisions involving statutory provisions and
should have done so. With Nevada rules, we typically consider the
public process conducted by the relevant State administrative agency
(usually the State Environmental Commission) in adopting new or
amended rules as adequate to comply the procedural requirements for
SIP revisions under CAA section 110(l). In contrast to rules,
however, Nevada statutory provisions are typically submitted to EPA
without an analogous public process, and thus NDEP must conduct a
public process specifically for the purpose of adopting statutory
provisions as a revision to the SIP to comply with section 110(l).
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Our TSD provides additional background information and a more
detailed rationale for our proposed approval of the provisions listed
in table 1 above.
B. Rule Rescissions
We have reviewed the rescissions listed in table 2 to determine
whether any of them should be retained to comply with CAA or EPA
requirements for SIPs, whether rescission of any of them would
interfere with attainment or maintenance of the NAAQS, or whether any
of them should be retained as a practical matter because of reliance on
them by other SIP rules.
Based on this review, we have found that NAC 445.436 (```Air
contaminant' defined'') should be retained because it is relied upon by
certain SIP rules that remain in the applicable SIP. We find that NAC
445.655 (``Abbreviations'') may be rescinded because the abbreviations
listed therein that are not simply superseded by our approval of the
current version of the rule (i.e., NAC 445B.211 (``Abbreviations''),
approved on March 27, 2006 at 71 FR 15040) are not relied upon by any
rules in the applicable SIP. Lastly, with respect to NAC 445.694
(``Emission discharge information''), we find that the rule should be
retained to comply with requirements under 40 CFR 51.116(c).
Therefore, we propose to disapprove the rescission requests for NAC
445.436 and NAC 445.694 and to approve the rescission request for NAC
445.655. Our TSD provides additional background information and a more
detailed rationale for our proposed actions on the rescissions listed
in table 2 above.
C. Rule Recodifications
We have compared the rule recodifications submitted by NDEP and
listed in table 3 above with the corresponding SIP rules to ensure that
the changes are administrative in nature. Based on this comparison, we
find all of the changes, which include revised titles and updates to
internal rule references and historical notes, to be administrative in
nature and acceptable. Therefore, we propose to approve the rule
recodifications listed in table 3, above. Our TSD provides additional
background information and discussion for our proposed approval of the
rule recodifications listed in table 3 above.
III. Public Comment and Proposed Action
Under section 110(k) of the Clean Air Act and for the reasons set
forth above, EPA is proposing to approve certain revisions, and to
disapprove certain other revisions, to the Nevada SIP submitted by NDEP
on January 12, 2006 and June 26, 2007. The provisions that are proposed
for approval include certain definitions; prohibitory rules; provisions
related to legal authority and enforcement; rules establishing opacity,
sulfur and volatile organic compound limits; and rescission of
abbreviations. The proposed approval of a certain statutory provision
related to legal authority is contingent upon receipt of public process
documentation of adoption of the provision as a revision to the state
implementation plan. The proposed disapproval relates to rescission of
a certain definition and rescission of a rule related to emission
discharge information.
Unless we receive convincing new information during the comment
period, we intend to publish a final rule that will approve the new or
amended rules shown in table 1, above, approve the rescission of
existing SIP rule NAC 445.655 (``Abbreviations''), approve the rule
recodifications shown in table 3, above, as revisions to the Nevada
SIP, but retain existing SIP rules NAC 445.436 (```Air contaminant'
defined'') and NAC 445.694 (``Emission discharge information'') in the
SIP. \4\ \5\
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\4\ The approval of submitted statutory provision NRS 445B.310
is contingent upon receipt of public process documentation from NDEP
adopting this provision as a revision to the Nevada SIP.
\5\ Final approval of the provisions listed in table 1 of this
notice would supersede the following provisions in the applicable
SIP (superseding rules shown in parentheses) upon the established
compliance date for any new or amended requirements in the
superseding provisions: NAC 445.617 (NAC 445B.172), NAC 445.630 (NAC
445B.190), NAC 445.660 (NAC 445B.220), NAC 445.663 (NAC 445B.225),
NAC 445.664 (NAC 445B.227), NAC 445.665 (NAC 445B.229), NAC.696 (NAC
445B.275), NAC 445.697 (NAC 445B.277), and NRS 445.493 (NRS
445B.310). Final approval of the rule recodifications listed in
table 3 of this notice would supersede rules with the same section
number in NAC chapter 445B.
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IV. 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 proposed 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 law
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
[[Page 71099]]
levels of government, as specified in Executive Order 13132 (64 FR
43255, August 10, 1999). This action merely proposes to approve state
law 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 proposes to approve a state rule implementing a
Federal standard.
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.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: November 30, 2007.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E7-24243 Filed 12-13-07; 8:45 am]
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