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

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final action to approve certain updated statutory provisions submitted by the State of Nevada as replacements for outdated statutory provisions in the applicable plan.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.

Table of Contents

Table of Figures

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EPA also proposed approval of certain updated statutory provisions submitted by the State of Nevada as replacements for outdated statutory provisions in the applicable plan.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.

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

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]

Table 3.—Submitted Provisions Which Are Approved as Replacements for Outdated Provisions in the Applicable SIP
Submittedprovisions TitleSubmittal 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 thatfollow. 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) provisionTitleSubmittal dateApproval 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. 601et 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. 3501et seq.).

The Congressional Review Act, 5 U.S.C. 801et 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 FederalRegulation is amended as follows:

Part 52—[amended]

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

Authority:

42 U.S.C. 7401et 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 * * * * *

(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.

* * * * *

Footnotes

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.

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).

References

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