E9-7428. 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:

Final rule.

SUMMARY:

Under the Clean Air Act, EPA is approving a revision to the Nevada state implementation plan involving legal authority. This revision was one of the provisions that were the subject of a proposed rule published in the Federal Register on December 14, 2007. EPA is taking this action under the Clean Air Act obligation to take action on submittals of revisions to state implementation plans. The effect of this action is to update the Nevada state implementation plan.

DATES:

Effective Date: This rule is effective on May 4, 2009.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2007-1155 for this action. The index to the docket 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, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Proposed Action

II. Public Comments, Previous Related Final Rule, and State Submittal of Public Process Documentation

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On December 14, 2007 (72 FR 71095), under the Clean Air Act (CAA or “Act”), EPA proposed approval of certain revisions, and disapproval of certain other revisions, to the Nevada State Implementation Plan (SIP) that had been submitted by the Nevada Division of Environmental Protection (NDEP) on January 12, 2006 and June 26, 2007. The provisions that were proposed for approval on December 14, 2007 included 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 disapprovals related to rescission of a certain definition and rescission of a rule related to emission discharge information. In our proposed rule, we indicated that that the approval of a certain statutory provision related to legal authority (i.e., [Nevada Revised Statutes (NRS) section 445B.310 (“Limitations on enforcement of Federal and State regulations concerning indirect sources”)], which had been included in NDEP's June 26, 2007 SIP revision submittal, would be contingent upon the receipt of necessary evidence of public process supporting the State adoption of NRS section 445B.310 as a revision to the Nevada SIP. Contingent, as noted, upon receipt of the public process documentation, we proposed approval of NRS section 445B.310 in our December 14, 2007 action because we found that it strengthens the SIP and provides the necessary legal authority to implement indirect source programs, where necessary to meet the national ambient air quality standards.

Our December 14, 2007 proposed rule and related technical support document (TSD) provide additional background information and a more detailed rationale for our proposed approval of NRS section 445B.310.

II. Public Comments, Previous Related Final Rule, and State Submittal of Public Process Documentation

EPA's December 14, 2007 proposed rule provided a 30-day public comment period, and no comments were submitted. On April 9, 2008 (73 FR 19144), we took final action on all of the provisions that were the subject of our December 14, 2007 proposed rule except for NRS section 445B.310. As to NRS section 445B.310, we had not yet received the necessary public process documentation and indicated that we were deferring final action to a separate document. See 73 FR 19144, at 19145 (April 9, 2008).

By letter dated November 25, 2008, NDEP submitted materials documenting public notice and the opportunity for public hearing on NRS section 445B.310 as a revision to the Nevada SIP. We have reviewed these materials and find that they satisfy the public process requirements for SIP revisions under CAA section 110(l). Therefore, we take final action today to approve NRS 445B.310, as submitted by NDEP on June 26, 2007, as a revision to the Nevada SIP.

III. EPA Action

As authorized under section 110(k) of the Act, and for the reasons described above and in our proposed rule, EPA is approving NRS section 445B.310 (“Limitations on enforcement of federal and state regulations concerning indirect sources”), as submitted by NDEP on June 26, 2007, as a revision to the Nevada SIP.^[1]

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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. section 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 June 2, 2009. 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: March 12, 2009.

Laura Yoshii,

Acting 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)(66)(i)(A)( 4) to read as follows:

§ 52.1470

Identification of plan.

* * * * *

(c) * * *

(66) * * *

(i) * * *

(A) * * *

(4) Nevada Revised Statutes (NRS) (2003), chapter 445B, section 445B.310 (“Limitations on enforcement of federal and state regulations concerning indirect sources”).

* * * * *

Footnotes

1.  Upon the effective date of today's final rule, the following provision will be superseded in the applicable SIP (superseding provision shown in parentheses): NRS 445.493 (NRS 445B.310).