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Daily Rules, Proposed Rules, and Notices of the Federal Government

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0141; FRL-9728-6]

Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is finalizing a limited approval and limited disapproval of revisions to the applicable state implementation plan for the State of Nevada. The revisions include new or amended State rules governing applications for, and issuance of, permits for stationary sources, but not including review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act. EPA is taking this action under the Clean Air Act obligation to take action on State submittals of revisions to state implementation plans. The intended effect of the limited approval and limited disapproval action is to update the applicable state implementation plan with current State rules with respect to permitting, and to set the stage for remedying deficiencies in the permitting rules with respect to certain new or revised national ambient air quality standards. This limited disapproval action would not trigger sanctions under section 179 of the Clean Air Act but does trigger an obligation on EPA to promulgate a Federal Implementation Plan unless the State of Nevada corrects the deficiencies, and EPA approves the related plan revisions, within two years of the final action.
DATES: Effective Date:This rule is effective on October 29, 2012.

Docket:EPA has established docket number EPA-R09-OAR-2012-0141 for this action. The index to the docket for this action is available electronically atwww.regulations.govand 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 at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in theFOR FURTHER INFORMATION CONTACTsection.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, 75 Hawthorne Street (AIR-3), San Francisco, CA 94105, phone number (415) 972-3534, fax number (415) 947-3579, or by email atyannayon.laura@epa.gov.
SUPPLEMENTARY INFORMATION:

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

Table of Contents I. Proposed Action A. Summary of Proposed Action and Description of SIP Submittals B. Resolution of Prior Deficiencies C. New Deficiencies II. Public Comment on Proposed Action III. Final Action IV. Statutory and Executive Order Reviews I. Proposed Action A. Summary of Proposed Action and Description of SIP Submittals

On June 28, 2012 (77 FR 38557), under section 110(k) of the Clean Air Act (CAA or “Act”), EPA proposed a limited approval and limited disapproval of revisions to the Nevada State Implementation Plan (SIP). The revisions, which were submitted by the Nevada Division of Environmental Protection (NDEP) on January 24, 2011, include certain new or amended State rules [i.e., certain sections of Nevada Administrative Code (NAC)] that govern applications for, and issuance of, permits for stationary sources [a process referred to herein as “New Source Review” (NSR) and rules referred to herein as “NSR rules”].1 NDEP's January 24, 2011 submittal also includes a rescission of one definition from the existing SIP (the definition of “special mobile equipment”).

1We note that the stationary source permitting rules that are the subject of today's final rule are not intended to satisfy the requirements for pre-construction review and permitting of major sources or major modifications under part C (“Prevention of Significant Deterioration of air quality”) or part D (“Plan requirements for nonattainment areas”) of title I of the Clean Air Act.

As described in our June 28, 2012 proposed rule (77 FR at 38557), on November 9, 2011, NDEP amended the January 24, 2011 submittal by replacing an NSR rule (NAC 445B.3457) that had been submitted on January 24, 2011 as a temporary regulation with the version of the rule that had been adopted by the State Environmental Commission (SEC) as a permanent regulation. On May 21, 2012, NDEP further amended the January 24, 2011 submittal by submitting a small set of additional NSR-related rules (and one statutory definition), certain clarifications concerning the previously-submitted NSR rules, and documentation supporting the selection of emissions-based thresholds for triggering the public notice requirements for draft permits for certain source modifications.

Table 1 below lists the rules (and one statutory definition) that were submitted by NDEP on January 24, 2011, November 9, 2011, and May 21, 2012 and on which EPA is taking final limited approval and limited disapproval action in this document.

Table 1—Submitted Rules (and Statutory Definition) Governing NSR for Stationary Sources Under NDEP Jurisdiction Submitted rule Title Adoption date Submittal date NAC 445B.003 “Adjacent properties” defined 11/03/93 01/24/11 NAC 445B.0035 “Administrative revision to a Class I operating permit” defined 08/19/04 01/24/11 NAC 445B.007 “Affected state” defined 11/03/93 01/24/11 NAC 445B.013 “Allowable emissions” defined 10/04/05 01/24/11 NAC 445B.014 “Alteration” defined 10/03/95 01/24/11 NAC 445B.016 “Alternative operating scenarios” defined 10/03/95 01/24/11 NAC 445B.019 “Applicable requirement” defined 06/17/10 01/24/11 NAC 445B.035 “Class I-B application” defined 10/03/95 01/24/11 NAC 445B.036 “Class I source” defined 08/19/04 01/24/11 NAC 445B.037 “Class II source” defined 06/17/10 01/24/11 NAC 445B.038 “Class III source” defined 06/17/10 01/24/11 NAC 445B.0423 “Commence” defined 03/18/08 05/21/12 NAC 445B.044 “Construction” defined 10/04/05 01/24/11 NAC 445B.046 “Contiguous property” defined 09/16/76 01/24/11 NAC 445B.054 “Dispersion technique” defined 10/04/05 01/24/11 NAC 445B.064 “Excessive concentration” defined 10/04/05 01/24/11 NAC 445B.066 “Existing stationary source” defined 10/03/95 01/24/11 NAC 445B.068 “Facility” defined 10/03/95 01/24/11 NAC 445B.069 “Federally enforceable” defined 03/18/08 01/24/11 NAC 445B.070 “Federally enforceable emissions cap” defined 11/03/93 01/24/11 NAC 445B.082 “General permit” defined 10/03/95 01/24/11 NAC 445B.083 “Good engineering practice stack height” defined 10/04/05 01/24/11 NAC 445B.087 “Increment” defined 11/03/93 01/24/11 NAC 445B.093 “Major modification” defined 08/19/04 01/24/11 NAC 445B.094 “Major source” defined 05/10/01 01/24/11 NAC 445B.0945 “Major stationary source” defined 08/19/04 01/24/11 NAC 445B.099 “Modification” defined 10/03/95 01/24/11 NAC 445B.104 “Motor vehicle” defined 05/10/01 01/24/11 NRS 485.050 “Motor vehicle” defined As amended in 2003 05/21/12 NAC 445B.107 “Nearby” defined 10/04/05 01/24/11 NAC 445B.108 “New stationary source” defined 10/03/95 01/24/11 NAC 445B.117 “Offset” defined 10/03/95 01/24/11 NAC 445B.123 “Operating permit” defined 06/17/10 01/24/11 NAC 445B.124 “Operating permit to construct” defined 11/19/02 01/24/11 NAC 445B.1345 “Plantwide applicability limitation” defined 06/17/10 01/24/11 NAC 445B.138 “Potential to emit” defined 10/05/10 01/24/11 NAC 445B.142 “Prevention of significant deterioration of air quality” defined 11/03/93 01/24/11 NAC 445B.147 “Program” defined 11/03/93 01/24/11 NAC 445B.154 “Renewal of an operating permit” defined 11/03/93 01/24/11 NAC 445B.156 “Responsible official” defined 06/17/10 01/24/11 NAC 445B.157 “Revision of an operating permit” defined 08/19/04 01/24/11 NAC 445B.179 “Special mobile equipment” defined 10/05/10 (repealed) 01/24/11 NAC 445B.187 “Stationary source” defined 10/05/10 01/24/11 NAC 445B.194 “Temporary source” defined 05/10/01 01/24/11 NAC 445B.200 “Violation” defined 11/03/93 05/21/12 NAC 445B.287 Operating permits: General requirements; exception; restriction on transfers 06/17/10 01/24/11 NAC 445B.287(2) [Provision addressing the operating permit requirements for certain types of Class I sources] 06/17/10 05/21/12 NAC 445B.288 Operating permits: Exemptions from requirements; insignificant activities 03/18/08 01/24/11 NAC 445B.295 Application: General requirements 09/06/06 01/24/11 NAC 445B.297 Application: Submission; certification; additional information 03/08/06 01/24/11 NAC 445B.298 Application: Official date of submittal 06/17/10 01/24/11 NAC 445B.305 Operating permits: Imposition of more stringent standards for emissions 06/17/10 01/24/11 NAC 445B.308 Prerequisites and conditions for issuance of certain operating permits; compliance with applicable state implementation plan 03/18/08 01/24/11 NAC 445B.310 Environmental evaluation: Applicable sources and other subjects; exemption 09/06/06 01/24/11 NAC 445B.311 Environmental evaluation: Contents; consideration of good engineering practice stack height 10/05/10 01/24/11 NAC 445B.313 Method for determining heat input: Class I sources 10/05/10 01/24/11 NAC 445B.3135 Method for determining heat input: Class II sources 11/19/02 01/24/11 NAC 445B.314 Method for determining heat input: Class III sources 11/19/02 01/24/11 NAC 445B.315 Contents of operating permits: Exception for operating permits to construct; required conditions 03/08/06 01/24/11 NAC 445B.318 Operating permits: Requirement for each source; form of application; issuance or denial; posting 03/08/06 01/24/11 NAC 445B.319 Operating permits: Administrative amendment 08/19/04 01/24/1 NAC 445B.325 Operating permits: Termination, reopening and revision, revision, or revocation and reissuance 06/17/10 01/24/1 NAC 445B.331 Request for change of location of emission unit 09/06/06 01/24/11 NAC 445B.3361 General requirements 06/17/10 01/24/11 NAC 445B.3363 Operating permit to construct: Application 12/09/09 01/24/11 NAC 445B.33637 Operating permit to construct for approval of plantwide applicability limitation: Application 08/19/04 01/24/11 NAC 445B.3364 Operating permit to construct: Action by Director on application; notice; public comment and hearing 12/09/09 01/24/11 NAC 445B.3365 Operating permit to construct: Contents; noncompliance with conditions 03/08/06 01/24/11 NAC 445B.33656 Operating permit to construct for approval of plantwide applicability limitation: Contents; noncompliance with conditions 03/08/06 01/24/11 NAC 445B.3366 Expiration and extension of operating permit to construct; expiration and renewal of plantwide applicability limitation 09/06/06 01/24/11 NAC 445B.3368 Additional requirements for application; exception 12/09/09 01/24/11 NAC 445B.3375 Class I-B application: Filing requirement 09/06/06 01/24/11 NAC 445B.3395 Action by Director on application; notice; public comment and hearing; objection by Administrator; expiration of permit 03/18/08 01/24/1 NAC 445B.340 Prerequisites to issuance, revision or renewal of permit 03/18/08 01/24/1 NAC 445B.342 Certain changes authorized without revision of permit; notification of authorized changes 10/04/05 01/24/11 NAC 445B.3425 Minor revision of permit 08/19/04 01/24/11 NAC 445B.344 Significant revision of permit 11/19/02 01/24/11 NAC 445B.3441 Administrative revision of permit to incorporate conditions of certain permits to construct 09/06/06 01/24/11 NAC 445B.3443 Renewal of permit 11/12/08 01/24/11 NAC 445B.3447 Class I general permit 11/19/02 05/21/12 NAC 445B.3453 Application: General requirements 03/08/06 01/24/11 NAC 445B.3457 Action by Director on application; notice; public comment and hearing; expiration of permit 10/05/11 11/09/11 NAC 445B.346 Required contents of permit 10/03/95 01/24/11 NAC 445B.3465 Application for revision 10/04/05 01/24/11 NAC 445B.3473 Renewal of permit 11/12/08 01/24/11 NAC 445B.3477 Class II general permit 03/18/08 01/24/11 NAC 445B.3485 Application: General requirements 09/06/06 01/24/11 NAC 445B.3487 Action by Director on application; expiration of permit 09/06/06 01/24/11 NAC 445B.3489 Required contents of permit 09/06/06 01/24/11 NAC 445B.3493 Application for revision 09/18/01 01/24/11 NAC 445B.3497 Renewal of permit 11/12/08 01/24/11

In our proposed rule (77 FR 38557, at 38559), we discussed the regulatory history of the Nevada SIP and identified the existing Nevada SIP rules governing NSR for stationary sources under NDEP jurisdiction (see table 2).

Table 2—Existing SIP Rules Governing NSR for Stationary Sources Under NDEP Jurisdiction Nevada Air Quality Regulations (NAQR) or Nevada Administrative Code (NAC) Fed. Reg. citation and EPA
  • approval date
  • NAQR article 1.36—Commenced 43 FR 36932; (August 21, 1978). NAQR article 1.42—Construction 43 FR 36932; (August 21, 1978). NAQR article 1.43—Contiguous property 43 FR 36932; (August 21, 1978). NAQR article 1.72—Existing facility 43 FR 36932; (August 21, 1978). NAQR article 1.104—Major stationary source 43 FR 36932; (August 21, 1978). NAQR article 1.109—Modification 43 FR 36932; (August 21, 1978). NAQR article 1.111—Motor vehicle 43 FR 36932; (August 21, 1978). NAC 445.559—“Operating permit” defined 49 FR 11626; (March 27, 1984). NAQR article 1.182—Special mobile equipment 43 FR 36932; (August 21, 1978). NAQR article 1.187—Stationary source 43 FR 36932; (August 21, 1978). NAC 445.649—“Violation” defined 49 FR 11626; (March 27, 1984). NAQR article 3.1.6 [“Application forms for requesting the issuance of either a registration certificate or an operating permit can be obtained from the Director.”) 43 FR 1341; (January 9, 1978). NAC 445.704 Registration certificates and operating permits required 49 FR 11626; (March 27, 1984). NAC 445.705 Exemptions 49 FR 11626; (March 27, 1984). NAC 445.706(1) Application date; payment of fees 49 FR 11626; (March 27, 1984). NAC 445.707 Registration certificates: Prerequisite; application; fee; issuance, denial; expiration 49 FR 11626; (March 27, 1984). NAC 445.712 Operating permits: Prerequisite; application; fee; issuance, denial; posting 49 FR 11626; (March 27, 1984). NAC 445.713 Operating permits: Renewal 49 FR 11626; (March 27, 1984). NAC 445.714 Operating permits: Replacement of lost or damaged permits 49 FR 11626; (March 27, 1984). NAC 445.715 Operating permits: Revocation 49 FR 11626; (March 27, 1984). NAC 445.716 Operating permits: Change of location 49 FR 11626; (March 27, 1984). NAQR article 13.1 (“General Provisions for the Review of New Sources”), subsection 13.1.3(1) 46 FR 21758; (April 14, 1981). NAQR article 13.1 (“General Provisions for the Review of New Sources”), subsections 13.1.4, 13.1.5, 13.1.6, and 13.1.7 40 FR 13306; (March 26, 1975). NAQR article 13.2 [applicability thresholds for environmental evaluations (EEs)], subsections 13.2.3 and 13.2.4 47 FR 27070; (June 23, 1982). NAQR article 13.3 [content requirements for EEs], subsection 13.3.1, 13.3.1.1, 13.3.1.2.2 47 FR 27070; (June 23, 1982). 2NDEP's NSR SIP retains certain nonattainment NSR provisions including the definition of the term, “lowest achievable emission rate” (LAER), and NAQR article 13.1.3(2) in the SIP. NAQR article 13.1.1 establishes an environmental evaluation (EE) requirement, and NAQR article 13.1.3(2) establishes the LAER requirement. LAER is defined to apply to applicants who are required to submit EEs, and such applicants are identified by emissions-based threshold values in article 13.2, 13.2.1, and 13.2.2, submitted on July 24, 1979 and approved on June 23, 1982 (47 FR 27070). Thus, the existing SIP definition for LAER, NAQR articles 13.1.1, 13.2, 13.2.1, and 13.2.2 must be retained in the SIP to properly interpret and apply the major source nonattainment requirements in NAQR article 13.1.3(2).

    We also described the previous version of the State's NSR rules that we disapproved. See 73 FR 20536; (April 16, 2008). Our 2008 final disapproval of the previous version of the NSR rules provides the context for this rulemaking in that our evaluation of the re-submitted NSR rules focused on changes the State had made in response to the findings in our 2008 final rule.

    As discussed further below, in our proposed rule, we found that the State had adequately addressed all of the previously-identified deficiencies in the NSR rules but new deficiencies related to the new or revised PM2.5and Pb national ambient air quality standards (NAAQS) prevent us from proposing a full approval of the rules. Therefore, we proposed a limited approval and limited disapproval of the submitted NSR rules. We did so based also on our finding that, while the rules did not meet all of the applicable requirements, the rules would represent an overall strengthening of SIP by clarifying and enhancing the NSR permitting requirements.

    B. Resolution of Prior Deficiencies

    In our June 28, 2012 proposed rule, we found that State had adopted rule revisions or provided sufficient explanation and documentation to fully address the 10 specific deficiencies that we found in the rules as set forth in our April 2008 final rule.

    First, we concluded that new or amended rules submitted for approval, including NAC 445B.0423 (“Commence” defined), NAC 445B.069 (“Federally enforceable” defined), NAC 445B.287, subsection (2) (Provision addressing the operating permit requirements for certain types of Class I sources), NRS 485.050 (“Motor vehicle” defined), and NAC 445B.083 (“Good engineering practice stack height” defined) adequately addressed the deficiencies related to the use of undefined terms or incorrect citations, the reliance on rules or statutory provisions that had not been submitted for approval as part of the SIP, or the confusion caused by submittal of multiple versions of the same rule.

    Second, we concluded that NAC 445B.138 (“Potential to emit” defined), as amended, adequately addressed the deficiency in this definition related to the limits that qualify for treatment as part of a stationary source's design for the purposes of determining its potential to emit.

    Third, by amending NAC 445B.187 (“Stationary source” defined) to delete the exclusion for “special mobile equipment,” the State Environmental Commission (SEC) adequately addressed the deficiency related to the necessary breadth of the definition of “stationary source” for NSR purposes.

    Fourth, we concluded that amendments to NAC 445B.313 (Method for determining heat input: Class I sources3 ) adequately addressed the deficiency related to the use of maximum heat input for applicability determination purposes with respect to combustion sources.

    3EPA generally refers to stationary sources with potentials to emit 100 tons per year or more of criteria pollutants (those for which national ambient air quality standards have been promulgated, such as, e.g., ozone, carbon monoxide, and particulate matter) as “major sources” and such sources with potentials to emit less than 100 tons per year as “minor sources.” Generally, speaking, the NSR program adopted by the Nevada SEC relies on the term “class I” sources to refer to “major sources” and “class II” and “class III” sources to refer to “minor sources.” In Nevada's NSR program, generally speaking, “class III” sources are non-exempt sources with potentials to emit of less than 5 tons per year of criteria pollutants, while “class II” sources are those sources that are covered under the NSR rules but that are neither “class I” or “class III” sources.

    Fifth, we concluded, based on NDEP's explanation, that NAC 445B.331 (“Request for change of location of emission unit”) need not be amended to address the deficiency that we had identified previously.

    Sixth, we concluded that amendments to NAC 445B.3477 (“Class II general permit”) were adequate to resolve the deficiency related to public participation requirements for issuing such permits, and that, based on NDEP's explanation, no further amendments in the rule were necessary.

    Seventh, we concluded that amendments to NAC 445B.311 (“Environmental evaluation: Required information”) adequately addressed the deficiency related to EPA approval for the use of a modification of, or substitution for, an EPA-approved model specified in appendix W of 40 CFR part 51.

    Eighth, we concluded that amendments to NAC 445B.3457 (“Action by Director on application; notice; public comment and hearing; expiration of permit”) adequately addressed the deficiencies related to public review of new or modified class II sources, notification to the air pollution control agencies for Washoe County or Clark County for class II sources proposed to be constructed or modified in Washoe County or Clark County, respectively, and public participation for new or modified sources of lead with potentials to emit 5 tons per year or more. In so concluding, we found that the emission-based thresholds that the SEC has established in NAC 445B.3457 to identify class II permit revisions that are subject to the public participation requirement were acceptable under 40 CFR 51.161 (“Public availability of information”) because we believed that the emissions-based thresholds represented well-defined objective criteria and because we found that the thresholds established in NAC 445B.3457 were reasonably calculated to exclude from mandatory public participation only less environmentally significant sources and modifications.

    In addition, with respect to public participation associated with permits for new class II sources and for class II modifications, we noted that the SEC also revised NAC 445B.3457 to provide for notification to the public through means (a state Web site and mailing list) other than through the traditional newspaper notice. We concluded that the requirement to provide the required notice by “prominent advertisement” in 40 CFR 51.161(b)(3) for new or modified minor sources (other than synthetic minor sources) is media neutral and can be met by means other than, or in combination with, the traditional newspaper notice.4 See Memorandum dated April 17, 2012 from Janet McCabe, Principal Deputy Assistant Administrator, EPA Office of Air and Radiation, to Regional Administrators, Regions 1-10, titled “Minor New Source Review Program Public Notice Requirements under 40 CFR 51.161(b)(3).” With respect to NAC 445B.3457, we concluded that NDEP's provision for notification through an Internet Web site designed to give general public notice and through a mailing list developed to include individuals that have requested to be included on such a list, with one exception, satisfied the requirement to provide the public with notice through “prominent advertisement” in the area affected.

    4As noted in footnote 3, above, “minor sources” are sources that have the potential to emit regulated NSR pollutants in amounts that are less than the applicable major source thresholds. Synthetic minor sources are those sources that have the potential to emit regulated NSR pollutants at or above the major source thresholds, but that have taken enforceable limitations to restrict their potential to emit below such thresholds.

    We believed that notification of proposed permit actions for one category of sources, synthetic minor sources, i.e., sources that have taken enforceable limitations to restrict their potential to emit below major source thresholds, must be made through traditional means of notification (i.e., newspaper notice) and preferably, should be made through traditional and electronic means on the grounds thatsuch sources should be treated for public participation purposes as major sources for which such notice is required. See 40 CFR 51.166(q)(2)(iii).

    While NAC 445B.3457 does not provide for traditional newspaper notice of class II sources that constitute synthetic minor sources, we concluded that the deficiency in Nevada's public notice requirements with respect to synthetic minor sources was not significant due to the limited potential number of synthetic minor sources that might not be subject to traditional (newspaper) notice under the State's NSR rules. Nonetheless, we recommended that the SEC amend the public notice regulations to ensure that the general public is notified of new synthetic minor sources by traditional (newspaper) means, at a minimum, or, preferably, in combination with electronic means.

    Ninth, we concluded that the deficiencies in the affirmative defense provision in NAC 445B.326 (“Operating permits: Assertion of emergency as affirmative defense to action for noncompliance”) were moot for the purposes of this rulemaking because NDEP did not include NAC 445B.326 in the revise sets of NSR rules submitted to EPA for action as a SIP revision.

    Lastly, we concluded that the amendments to NAC 445B.308 (“Prerequisites and conditions for issuance of certain operating permits; compliance with applicable state implementation plan”) adequately addressed the deficiencies by appropriately limiting the Director's discretion to approve any permit for any source where the degree of emission limitation required is affected by that amount of the stack height as exceeds good engineering practice stack height or any other dispersion technique.

    In conclusion, based on our point-by-point evaluation of the previous deficiencies in the previously-submitted NSR rules, we found that Nevada had adequately addressed all of the previously-identified deficiencies by submittal of appropriately amended rules and supporting documentation. Please see our June 28, 2012 proposed rule at pages 38560 to 38563 for additional discussion of our evaluation and conclusions concerning the resolution of the previously-identified deficiencies in the NSR rules.

    C. New Deficiencies

    While we believed that Nevada had adequately addressed the previously-identified deficiencies in the NSR rules, we found in our June 28, 2012 proposed rule that the State's NSR rules fail to address certain new requirements that were not in effect in 2008 when EPA last took action on them.

    Under 40 CFR 51.160, in connection with NSR, each SIP must set forth legally enforceable procedures that enable the State or local agency to determine whether the construction or modification of a facility, building, structure or installation or combination of these will result in, among other impacts, interference with attainment or maintenance of a national standard in the state in which the proposed source (or modification) is located or in a neighboring State. In our June 28, 2012 proposed rule, we concluded that the NSR rules did not meet the requirements of 40 CFR 51.160 with respect to the PM2.5NAAQS and the lead (Pb) NAAQS.

    With respect to PM2.5, we recognized that NDEP had submitted “infrastructure” SIPs5 to address the PM2.5NAAQS and that, in those SIPs, NDEP indicated that NSR requirements for the PM2.5NAAQS were to be met by evaluating new and modified sources for compliance with the PM10standard. At the time these infrastructure SIPs were submitted, EPA's policy allowed States to permit new or modified PM2.5sources using the PM10NSR program requirements as a surrogate for PM2.5.

    5“Infrastructure” SIPs refer to SIPs submitted in response to EPA's promulgation of a new or revised NAAQS and include provisions necessary to comply with the SIP content requirements set forth in CAA section 110(a)(2), other than those arising from designation of any area within a state as “nonattainment” for the new or amended NAAQS.

    We also recognized that we did not take timely action on the PM2.5“infrastructure” SIP submittals, and, as a result of the passage of time, the “surrogate” policy has lapsed (since May 16, 2011). As a result, States must now evaluate PM2.5emissions from new or modified sources directly to determine whether such sources would violate the 24-hour (35 µg/m3) or annual (15 µg/m3) PM2.5standards. See 40 CFR 51.166(a)(6)(i) and 73 FR 28321, at 28344; (May 16, 2008). The submitted NSR rules evaluated herein do not yet address PM2.5, and given the now current requirements for PM2.5and the lapse of the surrogate policy, we concluded in our proposed rule that we cannot now fully approve the submitted NSR rules.

    With respect to lead (Pb), we recognized that NDEP submitted an infrastructure SIP on October 12, 2011 to address the 2008 Pb NAAQS and that we have not yet taken action on it. Furthermore, we recognize that, at the time NDEP submitted the Pb “infrastructure” SIP, the deadline for States to submit the necessary NSR-related changes to address the 2008 Pb NAAQS had not yet passed. Now, however, with the passage of time, the deadline for such NSR-related changes has passed, and we must evaluate the submitted NSR requirements against the now-current NSR requirements. Thus, similar to the approach we are taking for PM2.5, we find that the submitted NSR rules do not address the new rolling 3-month average Pb NAAQS (0.15 µg/m3) and thus we concluded that we cannot now fully approve the submitted NSR rules. See 73 FR 66964, 67034-67041; (November 12, 2008).

    Lastly, we concluded in our proposed rule that the State Environmental Commission must revise the NSR rules to ensure protection of the PM2.5and Pb NAAQS in the issuance of permits for new or modified sources or EPA must promulgate a FIP within two years of final action.

    For more information about our evaluation concerning the new deficiencies, please see the June 28, 2012 proposed rule at pages 38563-38564.

    II. Public Comment on Proposed Action

    EPA's proposed action provided a 30-day public comment period. During this period, we received one comment letter, a letter from the Nevada Division of Environmental Protection (NDEP), dated July 27, 2012. In the July 27, 2012 letter, NDEP expresses general support for EPA's limited approval of the updated NSR rules noting that it results in a significant update of the permitting provisions in Nevada applicable SIP. EPA appreciates NDEP's significant efforts to fully address the deficiencies EPA identified in the previous submittals.

    III. Final Action

    No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, pursuant to sections 110(k) and 301(a) of the Clean Air Act, and for the reasons provided above and in our proposed rule, EPA is finalizing a limited approval and limited disapproval of revisions to the Nevada SIP that govern applications for, and issuance of, permits for stationary sources under the jurisdiction of the Nevada Division of Environmental Protection, excluding review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act. Specifically, EPA is finalizing limited approval and limited disapproval of the new or amended sections of the Nevada Administrative Code (and one section of the Nevada Revised Statutes) listed intable 1 above as a revision to the Nevada SIP.

    EPA is taking this action because, although we find that the new or amended rules meet most of the applicable requirements for such NSR programs and that the SIP revisions improve the existing SIP, we have also found certain deficiencies that prevent full approval. Namely, the submitted NSR rules do not address the new or revised national ambient air quality standards for PM2.5and lead (Pb) and must be revised accordingly.

    The intended effect of this limited approval and limited disapproval action is to update the applicable state implementation plan with current State rules with respect to permitting,6 and to set the stage for remedying deficiencies in the permitting rules with respect to new or revised national ambient air quality standards for PM2.5and Pb. This limited disapproval action does not trigger mandatory sanctions under section 179 of the Clean Air Act because sanctions apply to nonattainment areas and no areas within the State of Nevada have been designated as nonattainment for the national PM2.5or Pb standards. However, this limited disapproval action does trigger an obligation on EPA to promulgate a Federal Implementation Plan unless the State of Nevada corrects the deficiencies, and EPA approves the related plan revisions within two years of this final action.

    6Final approval of the rules (and statutory provision) in table 1 supersedes the rules listed in table 2, above, in the existing Nevada SIP.

    IV. Statutory and Executive Order Reviews A. Executive Order 12988, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 128665, entitled “Regulatory Planning and Review.”

    B. Paperwork Reduction Act

    This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.Burden is defined at 5 CFR 1320.3(b).

    C. Regulatory Reduction Act

    The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

    This rule will not have a significant impact on a substantial number of small entities because SIP approvals or disapprovals under section 110 of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is already imposing. Therefore, because this limited approval/limited disapproval action does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.Union Electric Co.,v.U.S. EPA,427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

    D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

    EPA has determined that this limited approval/limited disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action takes a limited approval/limited disapproval action on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

    E. Executive Order 13132, Federalism

    Federalism(64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

    This rule will 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, because it merely takes a limited approval/limited disapproval action on State rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

    F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between theFederal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.

    G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it takes a limited approval/limited disapproval action on State rules implementing a Federal standard.

    H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

    EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

    EPA lacks the discretionary authority to address environmental justice in this rulemaking. In reviewing SIP submissions, EPA's role is to approve or disapprove state choices, based on the criteria of the Clean Air Act. Accordingly, this action merely takes a limited approval/limited disapproval action on certain State requirements for inclusion into the SIP under section 110 of the Clean Air Act and will not in-and-of itself create any new requirements. Accordingly, it 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.

    K. Congressional Review Act

    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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

    L. Petitions for Judicial Review

    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 November 26, 2012. 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, Lead, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: August 30, 2012. Jared Blumenfeld, Regional Administrator, Region IX.

    Therefore, 40 CFR Chapter I 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 in paragraph (c), Table 1 is amended by: a. Adding new table entry titled “Nevada Revised Statutes, Title 43, Public Safety; Vehicles; Watercraft; Chapter 485, Motor Vehicles: Insurance and Financial Responsibility” at the beginning of the table; and under the new heading, adding an entry for “485.050”; b. Removing the entries for “Article 1.36,” “Article 1.42,” “Article 1.43,” “Article 1.72,” “Article 1.104,” “Article 1.109,” “Article 1.111,” “445.559,” “Article 1.182,” “Article 1.187,” “445.649,” “Article 3.1.6,” “445.704,” “445.705,” “445.706(1),” “445.707,” “445.712,”, “445.713,” “445.714”, “445.715,” “445.716,” “NAQR Article 13, subsection 13.1, paragraphs 13.1.4-13.1.7,” and “NAQR Article 13, subsection 13.3”; c. Adding in numerical order entries for “445B.003,” “445B.0035,” “445B.007,” “445B.013,” “445B.014,” “445B.016, “445B.019,” “445B.035,” “445B.036,” “445B.037,” “445B.038,” “445B.0423,” “445B.044,” “445B.046,” “445B.054,” “445B.064,” “445B.066,” “445B.068,” “445B.069,” “445B.070,” “445B.082,” “445B.083,” “445B.087,” “445B.093,” “445B.094,” “445B.0945,” “445B.099,” “445B.104,” “445B.107,” “445B.108,” “445B.117,” “445B.123,” “445B.124,” “445B.1345,” “445B.138,” “445B.142,” “445B.147,” “445B.154,” “445B.156,” “445B.157,” “445B.187,” “445B.194,” and “445B.200,” under the heading for “Nevada Administrative Code, Chapter 445B, Air Controls, Air Pollution; Nevada Administrative Code, Chapter 445, Air Controls, Air Pollution; Nevada Air Quality Regulations—Definitions”; d. Removing the text heading “Nevada Administrative Code, Chapter 445, Air Controls, Air Pollution; Nevada Air Quality Regulations—Registration Certificates and Operating Permits” and adding “Nevada Administrative Code, Chapter 445B, Air Controls, Air Pollution—Operating Permits Generally”, in its place; e. Adding in numerical order under the newly revised heading, “NevadaAdministrative Code, Chapter 445B, Air Controls, Air Pollution—Operating Permits Generally.” entries “445B.287, excluding paragraphs (1)(d) and (4)(b),”“445B.288,” “445B.295,” “445B.297, excluding subsection (2),” “445B.298,” “445B.305,” “445B.308, excluding paragraph (2)(d) and subsections (4), (5), and (10),” “445B.310,” “445B.311,” “445B.313,” “445B.3135,” “445B.314,” “445B.315,” “445B.318,” “445B.319, excluding paragraph (3)(b),” “445B.325, excluding subsections (1), (3), and (4),”“445B.331,” “445B.3361, excluding paragraph (1)(b) and subsections (6) and (7),” “445B.3363,” “445B.33637,” “445B.3364,” “445B.3365,” “445B.33656,” “445B.3366,” “445B.3368,”“445B.3375, excluding subsections (2) and (3),” “445B.3395, excluding subsections (13), (14), and(15),” “445B.340, excluding subsection (3),” “445B.342, excluding paragraph (3)(e),” “445B.3425,” “445B.344,” “445B.3441,” “445B.3443,” “445B.3447, excluding subsection (4),” “445B.3453, excluding subsection (3),” “445B.3457,”“445B.346, excluding subsection (6)” “445B.3465,” “445B.3473,” “445B.3477,” “445B.3485,” “445B.3487,” “445B.3489,”“445B.3493,” and “445B.3497”; and f. Revising the entries for “NAQR, Article 13, subsection 13.1, paragraph 13.1.3 [excluding 13.1.3(3)]” and “NAQR Article 13, subsection 13.2” under the heading, “Nevada Air Quality Regulations—Point Sources and Registration Certificates.”

    The additions and revisions read as follows:

    § 52.1470 Identification of plan.

    (c) * * *

    Table 1—EPA-Approved Nevada Regulations and Statutes State citation Title/subject State
  • effective
  • date
  • EPA approval date Additional explanation
    Nevada Revised Statutes, Title 43, Public Safety; Vehicles; Watercraft; Chapter 485, Motor Vehicles: Insurance and Financial Responsibility 485.050 “Motor vehicle” defined 10/1/03 [InsertFederal Registerpage number where the document begins] 9/27/12 Submitted on 5/21/12.
  • Nev. Rev. Stat. Ann. § 485.050 (Michie 2010).
  • Nevada Administrative Code, Chapter 445B, Air Controls, Air Pollution; Nevada Administrative Code, Chapter 445, Air Controls, Air Pollution; Nevada Air Quality Regulations—Definitions ******* 445B.003 “Adjacent properties” defined 12/13/93 [InsertFederal Registerpage number where the document begins] 9/27/12 Submitted on 1/24/11. November 2010 codification of NAC chapter 445B published by the Nevada Legislative Counsel Bureau. 445B.0035 “Administrative revision to a Class I operating permit” defined 09/24/04 [InsertFederal Registerpage number where the document begins] 9/27/12 Submitted on 1/24/11. N