E7-21447. 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 finalizing the approval of revisions to the Nevada State Implementation Plan (SIP). These revisions were proposed in the Federal Register on August 28, 2006 and include certain regulations and statutes for which the State of Nevada is requesting rescission. The intended effect is to rescind unnecessary provisions from the applicable plan.

DATES:

Effective Date: This rule is effective on December 3, 2007.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

Andrew Steckel, EPA Region IX, [phone], [e-mail].

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), under the Clean Air Act (CAA or “Act”), 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 in the Nevada SIP for which the State of Nevada is requesting rescission.

In our August 28, 2006 proposed rule, we made final approval of those rescission requests that we proposed to approve contingent upon the receipt of certain public notice and hearing documentation from the State of Nevada. On January 3, 2007 (72 FR 11), based on public notice and hearing documentation provided by the State for most of the requested rescission, we finalized the rescissions for most of the subject rules and statutory provisions. On June 13, 2007 (72 FR 32529), we published a second final rule related to our August 28, 2006 proposed rule. In our June 2007 final rule, we rescinded a Federal Implementation Plan (FIP) that we promulgated in the 1970's to regulate emissions of sulfur oxides from a now defunct smelter that had operated within White Pine County, Nevada.

In our January 3, 2007 final rule, we listed 12 provisions for which the State had yet to provide documentation of public participation and for which, therefore, we were deferring final action. See 72 FR 11, at 16. On June 26, 2007, the Governor's designee, the Nevada Division of Environmental Protection (NDEP), submitted the necessary public participation documentation for 11 of the 12 provisions for which final action had been deferred in our January 3, 2007 final rule.^[1] The 11 provisions are listed in the table below. Based on the documentation provided by NDEP on June 26, 2007, we now take final action to approve the requested rescission of the 11 provisions listed below.

SIP Provisions for Which the State's Rescission Request Is Approved

SIP 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 445.662	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

The majority of the provisions in the table above represent defined terms that are not used by any other provisions in the applicable SIP or represent provisions that are not required for SIPs and thus are unnecessary and appropriate for rescission. Our proposed action and related technical support document (TSD) contain more information on the rules and statutory provisions cited above and our evaluation.

II. Public Comments and EPA Responses

EPA's August 28, 2006 proposed rule provided a 30-day public comment period. During this period, we received comments from Jennifer L. Carr and Michael Elges, NDEP, by letter dated September 25, 2006. In our January 3, 2007 final rule (72 FR 11), we summarized the comments from NDEP's letter and provided our responses. With respect to the 11 provisions for which final action is taken herein, NDEP indicated in its September 25, 2006 letter that it would be conducting the necessary public notice and hearing. NDEP's June 26, 2007 submittal provides the necessary public participation documentation and provides the basis for EPA to take this final action to approve the State's request to rescind the 11 provisions listed in the table above from the applicable Nevada SIP.

III. EPA Action

No comments were submitted that change our assessment of our proposed action. Therefore, as authorized in section 110(k) of the Act, EPA is finalizing the approval of the State's request to rescind the provisions listed in the table above from the applicable SIP.

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 rescissions of state law that are unnecessary to meet Federal requirements and imposes no additional requirements. 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 requirements under state law and does not impose any additional enforceable duty, 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 rescissions of state law that are unnecessary to implement 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 January 2, 2008. 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: October 16, 2007.

Wayne Nastri,

Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations 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 paragraph (c)(14)(xi) and (c)(25)(ii) to read as follows:

§ 52.1470

Identification of plan.

* * * * *

(c) * * *

(14) * * *

(xi) Previously approved on July 10, 1980 in paragraph (14)(ii) and now deleted without replacement: Nevada Revised Statutes (NRS) sections: 445.401, 445.466, and 445.497.

* * * * *

(25) * * *

(ii) Previously approved on March 27, 1984, in paragraph (25)(i)(A) and now deleted without replacement: Nevada Administrative Code (NAC) sections: 445.447, 445.554, 445.596, 445.662, 445.695, 445.698, 445.700, and 445.844.

* * * * *

Footnotes

1.  NAC 445.617 (“Six-minute period”) is the lone rescission request among the 12 cited in the January 2007 final rule that is not being finalized today. In the submittal dated June 26, 2007, NDEP requests withdrawal of the rescission request for NAC 445.617 and, instead, replacement of NAC 445.617 in the SIP with approval of the current codification of the rule (i.e., NAC 445B.172). We will be taking action on submitted rule NAC 445B.172 in a separate document. Also, in the submittal dated June 26, 2007, NDEP provides public participation documentation for rescission of NAC 445.667 (“Excess emissions: Schedule maintenance; testing; malfunctions”), a rule covered by our proposal dated December 18, 2006 (71 FR 75690). We will take final action on rescission of NAC 445.667 in a separate document.