E6-9000. Revisions to the Nevada State Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve revisions to the Nevada State Implementation Plan (SIP). These revisions concern the Air Pollution sections of the Nevada Revised Statutes (NRS). We are proposing to approve the submitted statutes in order to bring the Nevada SIP up to date. These statutes are being approved under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

DATES:

Any comments must arrive by July 10, 2006.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2006-0464, by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions.

2. E-mail: [e-mail].

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. http://www.regulations.gov 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:

Julie Rose, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. The State's Submittal

A. What statutes did the state submit for approval?

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. How is EPA evaluating the statutes submitted for approval?

B. Do the statutes meet the evaluation criteria?

C. Public comment and final action.

III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What statutes did the state submit for approval?

The Governor's designee, the Nevada Department of Conservation and Natural Resources, Division of Environmental Protection (NDEP), submitted a large revision to the applicable SIP on January 12, 2006. On March 23, 2006, the Nevada SIP submittal dated January 12, 2006 was found to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review. On March 24, 2006, the NDEP submitted an additional revision consisting of a definition found in Title 0, Preliminary Chapter of the General Provisions of the NRS. On May 17, 2006, the submittal dated March 24, 2006 was found to meet the completeness criteria in 40 CFR part 51 Appendix V. The primary purpose of these revisions is to clarify and harmonize State and federally enforceable requirements. Because these revisions incorporate so many changes from the 1970s and 1980s vintage SIP regulations, EPA has decided to review and act on the submittal in a series of separate actions. The first such action was finalized in the Federal Register on March 27, 2006, (71 FR 15040). The remaining portions of the submittal will be acted on in future Federal Register actions.

The following table lists the Nevada Revised Statutes (NRS) addressed by this proposal with the dates they were submitted by NDEP.

Statutes Submitted for Approval

Nevada revised statutes (NRS)	Title	Submittal date
445B.105	Definitions	01/12/06
445B.110	Air contaminant	01/12/06
445B.115	Air pollution	01/12/06
445B.120	Commission	01/12/06
445B.125	Department	01/12/06
445B.130	Director	01/12/06
445B.135	Federal Act	01/12/06
445B.140	Hazardous air pollutant	01/12/06
445B.145	Operating permit	01/12/06
445B.150	Person	01/12/06
0.039	Person	03/24/06
445B.155	Source and indirect source	01/12/06
445B.210	Powers of Commission	01/12/06
445B.220	Additional powers of Commission	01/12/06
445B.225	Power of Commission to require testing of sources	01/12/06
445B.235	Additional powers of the Department	01/12/06
445B.245	Power of Department to perform or require test of emissions from stacks	01/12/06
445B.275	Creation; members; terms	01/12/06
445B.280	Attendance of witnesses at hearing; contempt; compensation	01/12/06
445B.300	Operating permit for source of air contaminant; notice and approval of proposed construction; administrative fees; failure of Commission or Department to act	01/12/06
445B.320	Approval of plans and specifications required before construction or alteration of structure	01/12/06
445B.500	Establishment and administration of program; contents of program; designation of air pollution control agency of county for purposes of federal act; powers and duties of local air pollution control board; notice of public hearings; delegation of authority to determine violations and levy administrative penalties; cities and smaller counties; regulation of certain electric plants prohibited	01/12/06
445B.510	Commission may require program for designated area	01/12/06
445B.520	Commission may establish or supersede county program	01/12/06
445B.530	Commission may assume jurisdiction over specific classes of air contaminants	01/12/06
445B.540	Restoration of superseded local program; continuation of existing local program	01/12/06
445B.560	Plan or procedure for emergency	01/12/06
445B.595	Governmental sources of air contaminants to comply with state and local provisions regarding air pollution; permit to set fire for training purposes; planning and zoning agencies to consider effects on quality of air	01/12/06

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 SIP to EPA in January 1972. EPA approved certain portions of the original SIP and disapproved others under CAA section 110(a). See 37 FR 10842 (May 31, 1972). For some of the disapproved portions, EPA promulgated substitute provisions, referred to as Federal implementation plan (FIP) provisions, under CAA section 110(c).

The original SIP included various rules, codified as articles within the Nevada Air Quality Regulations (NAQR), and various statutory provisions codified in title 40, chapter 445 of the Nevada Revised Statutes (NRS). In the early 1980's, Nevada reorganized and re-codified its air quality rules as 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 of title 40 of the NRS.

Nevada adopted and submitted many revisions to the original set of regulations and statutes in the SIP, some of which EPA approved on February 6, 1975 at 40 FR 5511; on March 26, 1975 at 40 FR 13306; on January 9, 1978 at 43 FR 1341; on January 24, 1978 at 43 FR 3278; on August 21, 1978 at 43 FR 36932; on July 10, 1980 at 45 FR 46384; on April 14, 1981 at 46 FR 21758; on August 27, 1981 at 46 FR 43141; on March 3, 1982 at 47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 18, 1982 at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 1984 at 49 FR 11626. Since 1984, EPA has approved very few revisions to Nevada's applicable SIP despite numerous changes that have been adopted locally. As a result, the version of the rules enforceable by NDEP is often quite different from the SIP version enforceable by EPA.

C. What is the purpose of this proposed rule?

The purpose of this proposal is to bring the applicable SIP up to date. We are proposing to approve the statutes contained in Nevada's January 12, 2006 and March 24, 2006 submittals.

II. EPA's Evaluation and Action

A. How is EPA evaluating the statutes submitted for approval?

We have reviewed the statutes submitted by NDEP on January 12, 2006 and March 24, 2006 for compliance with the CAA requirements for SIPs in general set forth in CAA section 110(a)(2) and 40 CFR part 51 and also for compliance with CAA requirements for SIP revisions in CAA section 110(l) and 193.

B. Do the statutes meet the evaluation criteria?

We believe the NRS statutes listed in the table are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSD has more information on our evaluation.

C. Public Comment and Final Action

Because EPA believes the Nevada SIP will continue to fulfill all relevant requirements, we are proposing to fully approve the submitted revisions in accordance with section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will approve these statutes into the federally enforceable SIP.

III. 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 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 proposed 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 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 proposes to approve a state rule 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 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 proposed 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

Authority: 42 U.S.C. 7401 et seq.

Dated: May 25, 2006.

Laura Yoshii,

Acting Regional Administrator, Region IX.