Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Stationary Source Permits, 38557-38566 [2012-15873]

Download as PDF Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, and 130’’. [FR Doc. C1–2012–15070 Filed 6–27–12; 8:45 am] BILLING CODE 1505–01–D ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2012–0141; FRL–9694–1] Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Stationary Source Permits Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing a limited approval and limited disapproval of revisions to the applicable state implementation plan for the State of Nevada. The submitted 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 proposing 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. If finalized as proposed, this limited disapproval action would not trigger sanctions under section 179 of the Clean Air Act but would 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: Written comments must be received on or before July 30, 2012. ADDRESSES: Submit comments, identified by docket number EPA–R09– OAR–2012–0141, by one of the following methods: 1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions. 2. Email: R9airpermits@epa.gov. 3. Mail or deliver: Gerardo Rios (AIR– 3), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901. rmajette on DSK2TPTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 Instructions: All comments will be included in the public docket without change and may be made available online at 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 www.regulations.gov or email. 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 email directly to EPA, your email 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. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: The index to the docket for this action 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: 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 at yannayon.laura@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, the terms ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. Table of Contents I. The State’s Submittals A. Which rules did the state submit? B. What is the regulatory history of the Nevada SIP? C. What are the existing Nevada rules governing NSR in the Nevada SIP? D. What is the purpose of this proposed rule? II. EPA’s Evaluation A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? 1. Previous Deficiencies in Prior-Submitted NSR Rules PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 38557 2. New Deficiencies in NSR Rules 3. Conclusion III. Public Comment and Proposed Action IV. Statutory and Executive Order Reviews I. The State’s Submittals A. Which rules did the state submit? On January 24, 2011, the Nevada Division of Environmental Protection (NDEP) submitted a revision to the Nevada State Implementation Plan (SIP) to EPA for approval or disapproval under section 110(k) of the Clean Air Act (CAA or ‘‘Act’’). NDEP’s submittal includes 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’’). In addition to the NSR rules, NDEP’s January 24, 2011 submittal contains evidence of public notice and adoption of the rules, or amendments to the rules, since March 2006. Evidence of public notice and adoption of the NSR rules or amendments that predate March 2006 were previously submitted by NDEP in SIP revision submittals dated February 16, 2005 and January 12, 2006. By letter dated February 17, 2011, we found that the January 24, 2011 submittal fulfills the completeness criteria in 40 CFR part 51, appendix V. On November 9, 2011, NDEP replaced one of the NSR rules, that had been submitted on January 24, 2011 (NAC 445B.3457) and that had been submitted as a temporary regulation, with the version of the rule that had been adopted by the State Environmental Commission (SEC) as a permanent regulation, and enclosed the related evidence of public notice and adoption for the permanent regulation. On May 21, 2012, NDEP submitted a small set of additional NSR-related rules [and one definition from the Nevada Revised Statutes (NRS)] to supplement the NSR rules submitted on January 24, 2011 and November 9, 2011. NDEP’s May 21, 2012 submittal also includes certain clarifications concerning the previously-submitted NSR rules, and documentation supporting the selection 1 We note that the stationary source permitting rules that are the subject of this proposed rule are not intended to satisfy the requirements for preconstruction 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. E:\FR\FM\28JNP1.SGM 28JNP1 38558 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 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 proposing action in this document. TABLE 1—SUBMITTED RULES (AND STATUTORY DEFINITION) GOVERNING NSR FOR STATIONARY SOURCES UNDER NDEP JURISDICTION Submitted rule NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NRS NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC NAC 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 ......................... 485.050 ........................... 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.179 ......................... 445B.187 ......................... 445B.194 ......................... 445B.200 ......................... 445B.287 ......................... NAC 445B.287(2) .................... NAC 445B.288 ......................... rmajette on DSK2TPTVN1PROD with PROPOSALS NAC NAC NAC NAC 445B.295 445B.297 445B.298 445B.305 ......................... ......................... ......................... ......................... NAC 445B.308 ......................... NAC 445B.310 ......................... NAC 445B.311 ......................... NAC 445B.313 ......................... NAC 445B.3135 ....................... NAC 445B.314 ......................... VerDate Mar<15>2010 15:17 Jun 27, 2012 Submittal date Title Adoption date ‘‘Adjacent properties’’ defined ................................................................ ‘‘Administrative revision to a Class I operating permit’’ defined ............ ‘‘Affected state’’ defined ......................................................................... ‘‘Allowable emissions’’ defined ............................................................... ‘‘Alteration’’ defined ................................................................................ ‘‘Alternative operating scenarios’’ defined .............................................. ‘‘Applicable requirement’’ defined ........................................................... ‘‘Class I–B application’’ defined .............................................................. ‘‘Class I source’’ defined ........................................................................ ‘‘Class II source’’ defined ....................................................................... ‘‘Class III source’’ defined ...................................................................... ‘‘Commence’’ defined ............................................................................. ‘‘Construction’’ defined ........................................................................... ‘‘Contiguous property’’ defined ............................................................... ‘‘Dispersion technique’’ defined .............................................................. ‘‘Excessive concentration’’ defined ......................................................... ‘‘Existing stationary source’’ defined ...................................................... ‘‘Facility’’ defined .................................................................................... ‘‘Federally enforceable’’ defined ............................................................. ‘‘Federally enforceable emissions cap’’ defined ..................................... ‘‘General permit’’ defined ........................................................................ ‘‘Good engineering practice stack height’’ defined ................................ ‘‘Increment’’ defined ................................................................................ ‘‘Major modification’’ defined .................................................................. ‘‘Major source’’ defined ........................................................................... ‘‘Major stationary source’’ defined .......................................................... ‘‘Modification’’ defined ............................................................................ ‘‘Motor vehicle’’ defined .......................................................................... ‘‘Motor vehicle’’ defined .......................................................................... ‘‘Nearby’’ defined .................................................................................... ‘‘New stationary source’’ defined ............................................................ ‘‘Offset’’ defined ...................................................................................... ‘‘Operating permit’’ defined ..................................................................... ‘‘Operating permit to construct’’ defined ................................................. ‘‘Plantwide applicability limitation’’ defined ............................................. ‘‘Potential to emit’’ defined ..................................................................... ‘‘Prevention of significant deterioration of air quality’’ defined ............... ‘‘Program’’ defined .................................................................................. ‘‘Renewal of an operating permit’’ defined ............................................. ‘‘Responsible official’’ defined ................................................................ ‘‘Revision of an operating permit’’ defined ............................................. ‘‘Special mobile equipment’’ defined ...................................................... ‘‘Stationary source’’ defined ................................................................... ‘‘Temporary source’’ defined .................................................................. ‘‘Violation’’ defined .................................................................................. Operating permits: General requirements; exception; restriction on transfers. [Provision addressing the operating permit requirements for certain types of Class I sources]. Operating permits: Exemptions from requirements; insignificant activities. Application: General requirements ......................................................... Application: Submission; certification; additional information ................ Application: Official date of submittal ..................................................... Operating permits: Imposition of more stringent standards for emissions. Prerequisites and conditions for issuance of certain operating permits; compliance with applicable state implementation plan. Environmental evaluation: Applicable sources and other subjects; exemption. Environmental evaluation: Contents; consideration of good engineering practice stack height. Method for determining heat input: Class I sources .............................. Method for determining heat input: Class II sources ............................. Method for determining heat input: Class III sources ............................ 11/03/93 ....................... 08/19/04 ....................... 11/03/93 ....................... 10/04/05 ....................... 10/03/95 ....................... 10/03/95 ....................... 06/17/10 ....................... 10/03/95 ....................... 08/19/04 ....................... 06/17/10 ....................... 06/17/10 ....................... 03/18/08 ....................... 10/04/05 ....................... 09/16/76 ....................... 10/04/05 ....................... 10/04/05 ....................... 10/03/95 ....................... 10/03/95 ....................... 03/18/08 ....................... 11/03/93 ....................... 10/03/95 ....................... 10/04/05 ....................... 11/03/93 ....................... 08/19/04 ....................... 05/10/01 ....................... 08/19/04 ....................... 10/03/95 ....................... 05/10/01 ....................... As amended in 2003 .... 10/04/05 ....................... 10/03/95 ....................... 10/03/95 ....................... 06/17/10 ....................... 11/19/02 ....................... 06/17/10 ....................... 10/05/10 ....................... 11/03/93 ....................... 11/03/93 ....................... 11/03/93 ....................... 06/17/10 ....................... 08/19/04 ....................... 10/05/10 (repealed) ...... 10/05/10 ....................... 05/10/01 ....................... 11/03/93 ....................... 06/17/10 ....................... 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 05/21/12 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 05/21/12 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 05/21/12 01/24/11 06/17/10 ....................... 05/21/12 03/18/08 ....................... 01/24/11 09/06/06 03/08/06 06/17/10 06/17/10 ....................... ....................... ....................... ....................... 01/24/11 01/24/11 01/24/11 01/24/11 03/18/08 ....................... 01/24/11 09/06/06 ....................... 01/24/11 10/05/10 ....................... 01/24/11 10/05/10 ....................... 11/19/02 ....................... 11/19/02 ....................... 01/24/11 01/24/11 01/24/11 Jkt 226001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\28JNP1.SGM 28JNP1 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 38559 TABLE 1—SUBMITTED RULES (AND STATUTORY DEFINITION) GOVERNING NSR FOR STATIONARY SOURCES UNDER NDEP JURISDICTION—Continued Submittal date Submitted rule Title Adoption date NAC 445B.315 ......................... Contents of operating permits: Exception for operating permits to construct; required conditions. Operating permits: Requirement for each source; form of application; issuance or denial; posting. Operating permits: Administrative amendment ...................................... Operating permits: Termination, reopening and revision, revision, or revocation and reissuance. Request for change of location of emission unit .................................... General requirements ............................................................................. Operating permit to construct: Application ............................................. Operating permit to construct for approval of plantwide applicability limitation: Application. Operating permit to construct: Action by Director on application; notice; public comment and hearing. Operating permit to construct: Contents; noncompliance with conditions. Operating permit to construct for approval of plantwide applicability limitation: Contents; noncompliance with conditions. Expiration and extension of operating permit to construct; expiration and renewal of plantwide applicability limitation. Additional requirements for application; exception ................................ Class I–B application: Filing requirement ............................................... Action by Director on application; notice; public comment and hearing; objection by Administrator; expiration of permit. Prerequisites to issuance, revision or renewal of permit ....................... Certain changes authorized without revision of permit; notification of authorized changes. Minor revision of permit .......................................................................... Significant revision of permit .................................................................. Administrative revision of permit to incorporate conditions of certain permits to construct. Renewal of permit .................................................................................. Class I general permit ............................................................................ Application: General requirements ......................................................... Action by Director on application; notice; public comment and hearing; expiration of permit. Required contents of permit ................................................................... Application for revision ........................................................................... Renewal of permit .................................................................................. Class II general permit ........................................................................... Application: General requirements ......................................................... Action by Director on application; expiration of permit .......................... Required contents of permit ................................................................... Application for revision ........................................................................... Renewal of permit .................................................................................. 03/08/06 ....................... 01/24/11 03/08/06 ....................... 01/24/11 08/19/04 ....................... 06/17/10 ....................... 01/24/11 01/24/11 09/06/06 06/17/10 12/09/09 08/19/04 ....................... ....................... ....................... ....................... 01/24/11 01/24/11 01/24/11 01/24/11 12/09/09 ....................... 01/24/11 03/08/06 ....................... 01/24/11 03/08/06 ....................... 01/24/11 09/06/06 ....................... 01/24/11 12/09/09 ....................... 09/06/06 ....................... 03/18/08 ....................... 01/24/11 01/24/11 01/24/11 03/18/08 ....................... 10/04/05 ....................... 01/24/11 01/24/11 08/19/04 ....................... 11/19/02 ....................... 09/06/06 ....................... 01/24/11 01/24/11 01/24/11 11/12/08 11/19/02 03/08/06 10/05/11 ....................... ....................... ....................... ....................... 01/24/11 05/21/12 01/24/11 11/09/11 10/03/95 10/04/05 11/12/08 03/18/08 09/06/06 09/06/06 09/06/06 09/18/01 11/12/08 ....................... ....................... ....................... ....................... ....................... ....................... ....................... ....................... ....................... 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 01/24/11 NAC 445B.318 ......................... NAC 445B.319 ......................... NAC 445B.325 ......................... NAC NAC NAC NAC 445B.331 ......................... 445B.3361 ....................... 445B.3363 ....................... 445B.33637 ..................... NAC 445B.3364 ....................... NAC 445B.3365 ....................... NAC 445B.33656 ..................... NAC 445B.3366 ....................... NAC 445B.3368 ....................... NAC 445B.3375 ....................... NAC 445B.3395 ....................... NAC 445B.340 ......................... NAC 445B.342 ......................... NAC 445B.3425 ....................... NAC 445B.344 ......................... NAC 445B.3441 ....................... 445B.3443 445B.3447 445B.3453 445B.3457 NAC NAC NAC NAC NAC NAC NAC NAC NAC rmajette on DSK2TPTVN1PROD with PROPOSALS NAC NAC NAC NAC ....................... ....................... ....................... ....................... 445B.346 ......................... 445B.3465 ....................... 445B.3473 ....................... 445B.3477 ....................... 445B.3485 ....................... 445B.3487 ....................... 445B.3489 ....................... 445B.3493 ....................... 445B.3497 ....................... B. What is the regulatory history of the Nevada SIP? On April 17, 2007 (72 FR 19144), we proposed to disapprove a previous version of essentially the same set of NSR rules that we are taking action on today. In that proposed rule, we described in detail the evolution of the Nevada SIP from 1972 through the mid1980’s. Please see our April 17, 2007 proposed rule (at page 19145) for additional details on the evolution of the Nevada SIP during that period. In more recent years, NDEP has submitted various updates to the Nevada SIP, and EPA has over time taken a number of actions to approve (or in a few cases, VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 disapprove) these SIP updates. See, e.g., 71 FR 51766 (August 31, 2006) (approval of updated statutory provisions); 71 FR 71486 (December 11, 2006)(approval of updated monitoring and volatile organic compound rules); and 72 FR 25971 (May 8, 2007) (approval of updated visible emissions and particulate matter rules). We finalized our April 17, 2007 proposed disapproval of the previous version of the NSR rules on April 16, 2008 (73 FR 20536). Today’s proposal continues the process of updating the Nevada SIP by proposing action on a new set of NSR rules submitted by NDEP that reflect a number of revisions relative to the PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 previous set of NSR rules that EPA disapproved in 2008. C. What are the existing Nevada rules governing NSR in the Nevada SIP? Table 2 lists the existing rules in the Nevada SIP governing NSR for sources under NDEP jurisdiction (i.e., other than those related to nonattainment NSR). As shown in table 2, these rules were approved into the SIP at various times in the 1970’s and 1980’s. The rules in table 2 would be replaced in, or otherwise deleted from, the SIP by the submitted set of rules (and one statutory provision) listed in table 1 if EPA were to take final action as proposed herein. E:\FR\FM\28JNP1.SGM 28JNP1 38560 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules TABLE 2—EXISTING SIP RULES GOVERNING NSR FOR STATIONARY SOURCES UNDER NDEP JURISDICTION Fed. reg. citation and EPA approval date Nevada Air Quality Regulations (NAQR) or Nevada Administrative Code (NAC) NAQR article 1.36—Commenced .......................................................................................................................... NAQR article 1.42—Construction .......................................................................................................................... NAQR article 1.43—Contiguous property ............................................................................................................. NAQR article 1.72—Existing facility ...................................................................................................................... NAQR article 1.104—Major stationary source ...................................................................................................... NAQR article 1.109—Modification ......................................................................................................................... NAQR article 1.111—Motor vehicle ...................................................................................................................... NAC 445.559—‘‘Operating permit’’ defined .......................................................................................................... NAQR article 1.182—Special mobile equipment .................................................................................................. NAQR article 1.187—Stationary source ................................................................................................................ NAC 445.649—‘‘Violation’’ defined ........................................................................................................................ 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.’’]. NAC 445.704—Registration certificates and operating permits required ............................................................. NAC 445.705—Exemptions ................................................................................................................................... NAC 445.706(1)—Application date; payment of fees ........................................................................................... NAC 445.707—Registration certificates: Prerequisite; application; fee; issuance, denial; expiration .................. NAC 445.712—Operating permits: Prerequisite; application; fee; issuance, denial; posting ............................... NAC 445.713—Operating permits: Renewal ......................................................................................................... NAC 445.714—Operating permits: Replacement of lost or damaged permits ..................................................... NAC 445.715—Operating permits: Revocation ..................................................................................................... NAC 445.716—Operating permits: Change of location ........................................................................................ NAQR article 13.1—(‘‘General Provisions for the Review of New Sources’’), subsection 13.1.3(1) ................... 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. NAQR article 13.2—[applicability thresholds for environmental evaluations (EEs)], subsections 13.2.3 and 13.2.4. NAQR article 13.3—[content requirements for EEs], subsection 13.3.1, 13.3.1.1, 13.3.1.22 .............................. D. What is the purpose of this proposed rule? The purpose of this proposed rule is to present our evaluation under the CAA and EPA’s regulations of the new and amended NSR rules submitted by NDEP on January 24, 2011, November 9, 2011, and May 21, 2012. We provide our reasoning in general terms below but provide more detailed analysis in the technical support document (TSD) that has been prepared for this proposed rulemaking. II. EPA’s Evaluation rmajette on DSK2TPTVN1PROD with PROPOSALS A. How is EPA evaluating the rules? EPA has reviewed the rules submitted on January 24, 2011, November 9, 2011, and May 21, 2012 by NDEP governing NSR for stationary sources under NDEP jurisdiction for compliance with the 2 NDEP’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). VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 CAA requirements for SIPs in general set forth in CAA section 110(a)(2), for compliance with EPA regulations for stationary source permitting programs in 40 CFR part 51, sections 51.160 through 51.164, and also for compliance with CAA requirements for SIP revisions in CAA section 110(l).3 As described below, EPA is proposing a limited approval and limited disapproval of the submitted NSR rules. B. Do the rules meet the evaluation criteria? As to procedural requirements for SIPs and SIP revisions, we find that, based on our review of the public participation documentation included in the January 24, 2011 and November 9, 2011, as well as the earlier NSR SIP submittals dated February 16, 2005 and January 12, 2006, NDEP has provided sufficient evidence of public notice and opportunity for comment and hearing prior the adoption and submittal to EPA for the rules that are the subject of today’s proposed action. As to the substantive requirements, we have used our comprehensive 3 CAA section 110(l) requires SIP revisions to be subject to reasonable notice and public hearing prior to adoption and submittal by States to EPA and prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 43 43 43 43 43 43 43 49 43 43 49 43 FR FR FR FR FR FR FR FR FR FR FR FR 36932 (August 21, 1978). 36932 (August 21, 1978). 36932 (August 21, 1978). 36932 (August 21, 1978). 36932 (August 21, 1978). 36932 (August 21, 1978). 36932 (August 21, 1978). 11626 (March 27, 1984). 36932 (August 21, 1978). 36932 (August 21, 1978). 11626 (March 27, 1984). 1341 (January 9, 1978). 49 49 49 49 49 49 49 49 49 46 40 FR FR FR FR FR FR FR FR FR FR FR 11626 11626 11626 11626 11626 11626 11626 11626 11626 21758 13306 (March 27, 1984). (March 27, 1984). (March 27, 1984). (March 27, 1984). (March 27, 1984). (March 27, 1984). (March 27, 1984). (March 27, 1984). (March 27, 1984). (April 14, 1981). (March 26, 1975). 47 FR 27070 (June 23, 1982). 47 FR 27070 (June 23, 1982). review of the previous set of NSR rules that formed the basis for our April 17, 2007 proposed rule as the starting point for the analysis of the current set of NSR rules. In our April 17, 2007 proposed rule, we found that, in general, the submitted NSR rules that were the subject of that proposed action met the relevant CAA and regulatory criteria, but we proposed to disapprove the rules on the basis of 10 specific deficiencies that we found in the rules. Following our final disapproval action published on April 16, 2008 (73 FR 20536), the SEC adopted revisions to the NSR rules to address the deficiencies that EPA had identified, and NDEP re-submitted the rules, which are the subject of today’s action. As explained further below, we have found that the amended rules now sufficiently address all of the deficiencies that EPA had found in the prior set of NSR rules, but that we have identified certain new deficiencies that prevent full approval of the rules. The new deficiencies relate to new requirements that were not in effect at the time of EPA’s April 2008 final rule. 1. Previous Deficiencies in PriorSubmitted NSR Rules In the following paragraphs, we cite the deficiencies that we identified in 2007, describe how the rules have been amended by the SEC, and evaluate whether the revisions fully resolve the E:\FR\FM\28JNP1.SGM 28JNP1 rmajette on DSK2TPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules issues previously raised by EPA. In a separate subsection, we describe the new deficiencies in the NSR rules. First, we found that certain submitted rules used undefined terms, contained incorrect citations, or relied on rules or statutory provisions that had not been submitted for approval as part of the SIP, or that multiple versions of the same rule were included in the same submittal; and thus were unnecessarily ambiguous. Specifically, we found that: • NAC 445B.3366 (‘‘Expiration and extension of operating permit to construct; expiration and renewal of plantwide applicability limitation’’) relied on the term, ‘‘commence,’’ that is not defined in the SIP for contexts outside of CAA section 111 (Standards of performance for new stationary sources)(i.e., not defined for NSR purposes); • NAC 445B.069 (‘‘Federally enforceable’’ defined) included incorrect citations to EPA regulations; • The following submitted rules relied on rules or statutory provisions that hade not been submitted: NAC 445B.287 [which cited subsection (2) but did not include subsection (2)], NAC 445B.104 (citing NRS 485.050), NAC 445B.179 (citing NRS 482.123), and NAC 445B.311 (citing NAC 445B.083); and • Multiple versions of the following rules were submitted: NAC 445B.308, NAC 445B.3363, and NAC 445B.3364. To address these issues: • SEC adopted a rule (NAC 445B.0423) that defines ‘‘commence’’ for NSR purposes and NDEP submitted the rule on May 21, 2012. • SEC amended NAC 445B.069 (‘‘Federally enforceable’’ defined) to correct the citations to EPA regulations and NDEP re-submitted the rule on January 24, 2011. • NDEP submitted NAC 445B.287, subsection (2), and NRS 485.050 on May 21, 2012; SEC amended the rules such that the NSR program no longer relies on NRS 482.123 (‘‘Special mobile equipment’’); and NDEP submitted NAC 445B.083 on January 24, 2011. • The current submittals evaluated herein, dated January 24, 2011, November 9, 2011, and May 21, 2012 do not contain multiple versions of the same rule. Second, we concluded that the definition of ‘‘potential to emit’’ in submitted rule NAC 445B.138 must be revised to require effective limits and to include criteria by which a limit is judged to be practicably enforceable by NDEP. In response, SEC amended the rule to allow certain physical or operational limitations on the capacity of a stationary source to emit pollutants VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 to be treated as part of its design for the purposes of determining its potential to emit if the limitations are ‘‘federally enforceable,’’ a term that is appropriately defined in NAC 445B.069. This revision fully addresses the issue that EPA had identified in the previous version of the rule. NDEP included the revised rule NAC 445B.187 in its January 24, 2011 SIP submittal. Third, we found that NDEP’s stationary source program may not be as inclusive as required under the CAA depending upon whether the exclusion of ‘‘special mobile equipment’’ from the definition of ‘‘stationary source’’ in submitted rule NAC 445B.187 extends to engines and vehicles that are not considered to be ‘‘nonroad.’’ In response, SEC amended NAC 445B.187 to delete the exclusion for ‘‘special mobile equipment,’’ and NDEP included the revised rule NAC 445B.138 in its January 24, 2011 SIP submittal. Fourth, we found that the method for determining heat input for class I sources 4 in submitted rule NAC 445B.313 must be amended to require that combustion sources make applicability determinations based on the maximum heat input. In response, SEC amended NAC 445B.313 accordingly, and NDEP included the revised rule NAC 445B.313 in its January 24, 2011 SIP submittal. Fifth, we concluded that NAC 445B.331 (‘‘Request for change of location of emission unit’’) must be amended to limit its applicability to location changes within the confines of the existing stationary source at which the emission unit is originally permitted. NDEP explained that NAC 445B.331 relates to temporary sources and that such sources must choose between two types of permits: A normal stationary source operating permit 5 or a general operating permit. If the former is chosen, the normal permitting process occurs, and if the latter is chosen, the 4 EPA 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 nonexempt 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. 5 Nevada’s NSR program uses the term ‘‘operating permit to construct’’ or just ‘‘operating permit’’ to refer to permits that EPA generally cites as ‘‘construction’’ permits. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 38561 owner or operator must obtain a general operating permit and request to operate at the selected location within the constraints of the general operating permit. Either way, an environmental evaluation (EE) is performed to ensure compliance with the national ambient air quality standards (NAAQS) (with the exception of NAAQS that have been added or revised in recent years—see II.B.2 of this document). NDEP further explained that the request for approval of a specific location under NAC 445B.331 simply allows the NDEP to evaluate the owner or operator’s proposal to ensure that the proposal complies with the terms and conditions of the general operating permit. Based on NDEP’s explanation, we believe that no further changes in this rule are required. Sixth, we found that submitted rule NAC 445B.3477 (‘‘Class II general permit’’) must be amended to identify the requirements for general permits, the public participation requirements for issuing such permits, and the criteria by which stationary sources may qualify for such a permit. NDEP has explained that, under Nevada’s regulations, a ‘‘general permit’’ is a type of operating permit (one issued by the Director to cover numerous similar stationary sources) and that requirements for a general permit and the criteria by which sources may qualify for a general permit are found in the general permit. In addition, NDEP has explained that class II general permits are subject to requirements that are similar to those for class II operating permits, and that NDEP performs a worst-case environmental evaluation to ensure that the terms and conditions of the class II general operating permit will ensure compliance with the NAAQS (with the exception of NAAQS that have been added or revised in recent years—see II.B.2 of this document). We find this explanation satisfactory. As to public participation, SEC amended the rule to establish public participation requirements for issuing class II general permits, and NDEP submitted the revised rule on January 24, 2011. We have reviewed these new requirements and find them acceptable. Seventh, we found that submitted rule NAC 445B.311 (‘‘Environmental evaluation: Required information’’) allows for NDEP to authorize use of a modification or substitution of an EPAapproved model specified in appendix W of 40 CFR part 51 without EPA approval and must be amended accordingly to comply with 40 CFR 51.160(f). In response, SEC has amended the rule to require written approval by EPA for the use of modified or E:\FR\FM\28JNP1.SGM 28JNP1 rmajette on DSK2TPTVN1PROD with PROPOSALS 38562 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules substitute model, and to require public participation prior to authorization of the use of such a modified or substitute model. NDEP submitted the revised rule on January 24, 2011. Eighth, to comply with 40 CFR 51.161 (‘‘Public availability of information’’), we concluded that the NSR rules must be amended to provide for adequate public review of new or modified class II sources; for notification to the air pollution control agencies for Washoe County or Clark County for those sources proposed to be constructed or modified in Washoe County or Clark County, respectively; and to provide for public participation for new or modified sources of lead with potential to emit 5 tons per year or more. In response, the SEC has amended the rule to require public participation prior to issuance of all new class II permits and prior to issuance of revisions to class II permits for which allowable emissions would increase in excess of specified thresholds; to require notification to the relevant county air agencies; and to provide for public participation for new or modified sources of lead with potentials to emit 5 tons per year or more. NDEP submitted the revised rule on November 9, 2011. See NAC 445B.3457, subsections (5) and (6). 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 are 40 tons per year for carbon monoxide, volatile organic compounds, nitrogen oxides, and sulfur dioxide; 15 tons per year for particulate matter with an aerodynamic diameter of less than or equal to a nominal ten microns (PM10); and 0.6 tons per year for lead (Pb). In its submittal dated May 21, 2012, NDEP included documentation that indicates that selected thresholds capture more than 80 percent of the emissions associated with stationary sources. EPA regulations in 40 CFR 51.160(e) allow State NSR programs to exclude new minor sources and minor modifications from the NSR program so long as such sources and modifications are not environmentally significant, consistent with the de minimis exemption criteria set forth in Ala. Power Co. v. Costle, 636 F.2d 323, at 360–361 (D.C. Cir. 1979).6 Given that 40 6 While the Alabama Power court discusses the de minimis principle in the context of a Federal administrative agency’s authority in promulgating rules to satisfy statutory requirements, the same principle can be applied where a State promulgates rules to satisfy requirements by a Federal administrative agency. With regards to the de minimis principle, the Alabama Court writes: VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 CFR 51.160(e) allows for sources and modifications that are not environmentally significant to be excluded entirely from the NSR program, it follows that a State or local agency can choose to exempt some new sources or modifications subject to permitting from public participation requirements, but, it must do so consistent with the de minimis principles and by application of welldefined objective criteria. Thus, EPA believes that 40 CFR 51.161(a) allows for the tailoring of the public participation process for less environmentally significant sources and modifications. See, generally, 60 FR 45530, at 45548–45549 (August 31, 1995). In this instance, we believe that the emissions-based thresholds represent well-defined objective criteria and, based on NDEP’s documentation of the extent to which overall stationary source emissions are covered by sources subject to mandatory public participation, we find that the thresholds established in NAC 445B.3457 are reasonably calculated to exclude from mandatory public participation only less environmentally significant sources and modifications. This is acceptable. In addition, with respect to public participation associated with permits for new class II sources and for class II modifications, we note that the SEC has 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. EPA believes 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 ‘‘Determination of when matters are truly de minimis naturally will turn on the assessment of particular circumstances, and the agency will bear the burden of making the required showing. But we think most regulatory statutes, including the Clean Air Act, permit such agency showings in appropriate cases. While the difference is one of degree, the difference of degree is an important one. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. That implied authority is not available for a situation where the regulatory function does provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs. For such a situation any implied authority to make cost-benefit decisions must be based not on a general doctrine but on a fair reading of the specific statute, its aims and legislative history.’’ See Ala. Power Co. v. Costle, 636 F.2d 323, at 360– 361 (D.C. Cir. 1979). PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 newspaper notice.7 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).’’ Subsection (6) of NAC 445B.3457 provides two means of providing public notice. Paragraph (b) of subsection (6) requires a copy of the notice to be published ‘‘on an Internet Web site designed to give general public notice,8 ’’ and paragraph (c) of subsection (6) requires notification through a mailing list developed to include individuals that have requested to be included on such a list. We believe that such notification, with one exception, satisfies the requirement to provide the public with notice through ‘‘prominent advertisement’’ in the area affected. While EPA believes that notice of permitting actions may be made by means other than traditional newspaper notice for most types of minor sources, EPA also believes that, with respect to synthetic minor sources, an exception should be made to the use of electronic means as the sole means to notify the general public of proposed permitting actions. For synthetic minor sources, i.e., sources that have taken enforceable limitations to restrict their potential to emit below major source thresholds, we believe that the traditional means of notification (i.e., newspaper notice) should be included as one of the means for notifying the general public of proposed permit actions on the grounds that such 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). NAC 445B.3457 does not provide for traditional newspaper notice of class II sources that constitute synthetic minor sources, but although we recognize that there may be instances where a proposed new synthetic minor source 7 As noted in footnote 4, 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. 8 NDEP has clarified in its submittal dated May 21, 2012 that NDEP’s own Web site is the ‘‘Internet Web site’’ referred to in NAC 445B.3457. The submittal refers to the wording ‘‘state Web site’’ which was included in the January 24, 2011 submittal, rather than ‘‘Internet Web site’’ of the November 9, 2011 submittal for NAC 445B.3457, but we believe the clarification is the same for either term. E:\FR\FM\28JNP1.SGM 28JNP1 rmajette on DSK2TPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules would not be subject to newspaper notice because, under Nevada’s regulations, it is considered a class II source subject to NAC 445B.3457, rather than a class I source subject to NAC 445B.3364 (for which newspaper notice is required), we anticipate that such instances would be few in number. This is because, with very few exceptions, Nevada’s NSR rules apply to sources in ‘‘attainment’’ or ‘‘unclassified’’ areas 9 where the major source thresholds (for the purposes of NSR) are 250 tons per year for most types of sources whereas the requirements for class I sources under NAC 445B.3364 (under which newspaper notice is required) apply to sources with potentials to emit 100 tons per year or more. Thus, most synthetic minor sources under Nevada’s regulations would be considered ‘‘class I’’ sources (and subject to traditional newspaper notice), because they would have potentials to emit at least 100, but less than 250, tons per year, although still considered ‘‘minor sources’’ for the purposes of NSR. Therefore, we do not find that the deficiency in Nevada’s public notice requirements with respect to synthetic minor sources to be significant. Nonetheless, we recommend 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 found that the affirmative defense provision in submitted rule NAC 445B.326 (‘‘Operating permits: Assertion of emergency as affirmative defense to action for noncompliance’’) was not approvable under CAA section 110(a)(2) as written because it could be applied to technology-based emission limitations approved into the SIP. NDEP did not include NAC 445B.326 in the revised sets of NSR rules submitted to EPA for action as a SIP revision. Furthermore an affirmative defense provision, such as that provided for in NAC 445B.326, is not required to be included in a SIP NSR program; therefore, the previously-identified deficiencies in NAC 445B.326 do not need to be considered further in the context of action on the submitted NSR rules. Lastly, while the submitted rules include a specific prohibition on approving a permit for any source where the degree of emission limitation 9 See 40 CFR 81.329 for the designations of air quality planning areas in the State of Nevada. As shown in the tables codified at 40 CFR 81.329, other than certain areas within Clark and Washoe Counties, air quality planning areas in Nevada are designated as attainment or unclassifiable. VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 required is affected by that amount of the stack height as exceeds good engineering practice stack height or any other dispersion technique, we found that the relevant provision (i.e., 445B.308(3)) includes director’s discretion (* * * if ‘‘the Director determines’’ * * *), which must be removed in order for EPA to approve the rules as meeting the requirements of 40 CFR 51.164. In response, the SEC amended the rule to clarify that the Director’s discretion in this instance is limited by the additional procedural requirements set forth in subsection (3) of NAC 445B.311. We have reviewed the additional procedural requirements in subsection (3) of NAC 445B.311 and find that they are consistent with the related requirements in 40 CFR 51.164. NDEP submitted the revised rule on January 24, 2011. In conclusion, based on our point-bypoint evaluation of the previous deficiencies in the previously-submitted NSR rules, as described above and in further detail in our TSD, we find that Nevada has adequately addressed all of the previously-identified deficiencies by submittal of appropriately amended rules and supporting documentation. 2. New Deficiencies in NSR Rules While we believe that Nevada has adequately addressed the previouslyidentified deficiencies in the NSR rules, we now find 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. To address this requirement, NAC 445B.310 and 445B.311 require permit applicants to prepare environmental evaluations (EE) that contain dispersion analyses showing the effect of the source on the quality of the ambient air. As explained below, NAC 445B.308, 445B.310, and 445B.311 represent a legally enforceable procedure that enables NDEP to make the necessary determinations under 40 CFR 51.160 with respect to the national ambient air quality standards, circa 1991, but not with respect to the new or revised national standards promulgated by EPA since that time. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 38563 Subsection (2) of NAC 445B.308 prohibits the issuance of an operating permit or revision thereto for any stationary source if the EE shows that the stationary source would ‘‘prevent the attainment and maintenance of the state or national ambient air quality standards. For the purposes of this paragraph, only those ambient air quality standards that have been established in NAC 445B.22097 need to be considered in the environmental evaluation.’’ NAC 445B.22097 in turn lists the Nevada ambient air quality standards (‘‘Nevada standards’’) and national ambient air quality standards (‘‘National standards’’ or NAAQS).10 With respect to the NAAQS, NAC 445B.22097 has not been updated since 1991 and thus does not include the new, revised, or revoked NAAQS since that time. Moreover, NAC 445B.22097 includes a note that states: ‘‘The Director shall use the Nevada standards in considering whether to issue a permit for a stationary source and shall ensure that the stationary source will not cause the Nevada standards to be exceeded in areas where the general public has access.’’ The Nevada ambient air quality standards are equal to the NAAQS (i.e., as of 1991) for those pollutants for which both Nevada and EPA have established ambient standards, but, because the Nevada standards do not reflect the changes in the NAAQS since 1991, reliance on them for permitting purposes does not ensure protection of the new or revised NAAQS established since then as NDEP reviews permit applications for new or modified stationary sources. With respect to the ozone NAAQS, we therefore encourage the SEC to update NAC 445B.22097 to take into account the replacement of the 1-hour ozone standard (0.12 ppm) with an 8-hour ozone standard (0.075 ppm), although we do not consider the failure to update the rule for ozone as a significant deficiency because, given the regional nature of ambient ozone concentrations, applicants for permits for new or modified stationary sources are not required to show, through dispersion modeling techniques, that the ozone precursor emissions from the source or modification would not violate the standard. With respect to PM2.5, we recognize that NDEP submitted ‘‘infrastructure’’ 10 EPA approved NAC 445B.22097 (‘‘Standards of quality for ambient air’’) as part of the Nevada SIP in a separate rulemaking. See 71 FR 15040 (March 27, 2006). E:\FR\FM\28JNP1.SGM 28JNP1 rmajette on DSK2TPTVN1PROD with PROPOSALS 38564 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules SIPs 11 on February 26, 2008 and September 15, 2009 to address the 1997 PM2.5 NAAQS and 2006 PM2.5 NAAQS, respectively. In both such PM2.5 ‘‘infrastructure’’ SIPs, NDEP indicated that the NSR requirements for the PM2.5 NAAQS were to be met by evaluating new and modified sources for compliance with the PM10 standard. At the time these ‘‘infrastructure’’ SIPs were submitted, EPA’s policy allowed States to permit new or modified PM2.5 sources using the PM10 NSR program requirements as a surrogate for PM2.5. We also recognize that we did not take timely action on the two ‘‘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 PM2.5 emissions from new or modified sources directly to determine whether such sources would violate the 24-hour (35 mg/m3) or annual (15 mg/m3) PM2.5 standards. 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 nowcurrent requirements for PM2.5 and the lapse of the surrogate policy, we cannot now fully approve the submitted NSR rules. In response, the State Environmental Commission must revise the NSR rules to ensure protection of the PM2.5 NAAQS in the issuance of permits for new or modified sources or EPA must promulgate a FIP within two years of final action. With respect to lead (Pb), we recognize 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 NSRrelated 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 3month average Pb NAAQS (0.15 mg/m3) and thus we cannot now fully approve the submitted NSR rules. See 73 FR 66964, 67034–67041 (November 12, 11 ‘‘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. VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 limited disapproval of the new or amended sections of the Nevada Administrative Code (and one section of the Nevada Revised Statutes) listed in table 1, above as a revision to the Nevada SIP. EPA is proposing 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 PM2.5 and 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,12 and to set the stage for remedying deficiencies in the permitting rules with respect to new or revised national ambient air quality standards for PM2.5 and Pb. If finalized as proposed, this limited approval action would 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 3. Conclusion have been designated as nonattainment For the reasons stated above, we find for the national PM2.5 or Pb standards. that the State has adequately addressed However, this limited disapproval all of the previously-identified action would trigger an obligation on deficiencies in the NSR rules but new EPA to promulgate a Federal deficiencies related to the new or Implementation Plan unless the State of revised PM2.5 and Pb NAAQS prevent us Nevada corrects the deficiencies, and from proposing a full approval of the EPA approves the related plan revisions rules. Therefore, we are proposing a within two years of the final action. limited approval and limited We will accept comments from the disapproval of the submitted NSR rules. public on this proposed limited We do so based also on our finding that, approval and limited disapproval for the while the rules do not meet all of the next 30 days. applicable requirements, the rules IV. Statutory and Executive Order would represent an overall Reviews strengthening of SIP by clarifying and enhancing the NSR permitting A. Executive Order 12988, Regulatory requirements. Planning and Review III. Public Comment and Proposed The Office of Management and Budget Action (OMB) has exempted this regulatory Pursuant to section 110(k) of the action from Executive Order 128665, Clean Air Act, and for the reasons entitled ‘‘Regulatory Planning and provided above, EPA is proposing a Review.’’ limited approval and limited B. Paperwork Reduction Act disapproval of revisions to the Nevada SIP that govern applications for, and This action does not impose an issuance of, permits for stationary information collection burden under the sources under the jurisdiction of the provisions of the Paperwork Reduction Nevada Division of Environmental Act, 44 U.S.C. 3501 et seq. Burden is Protection, excluding review and defined at 5 CFR 1320.3(b). permitting of major sources and major modifications under parts C and D of 12 Final approval of the rules (and statutory title I of the Clean Air Act. Specifically, provision) in table 1 would supersede the rules EPA is proposing a limited approval and listed in table 2, above, in the existing Nevada SIP. 2008). In response, the State Environmental Commission must revise the NSR rules to ensure protection of the Pb NAAQS in the issuance of permits for new or modified sources or EPA must promulgate a FIP within two years of final action. With respect to new or revised NAAQS for nitrogen dioxide and sulfur dioxide, and based on the promulgation dates of these new or revised NAAQS, the State still has additional time to amend its NSR rules to address the revised NAAQS for these pollutants, and thus we do not view the failure to update NAC 445B.22097 to address the 2010 1-hour nitrogen dioxide standard and the 2010 1-hour sulfur dioxide standard as precluding approval of the submitted NSR rules at this time. See 75 FR 6474, at 6523–6525 (February 9, 2010) (NSR SIP revisions for the 1-hour nitrogen dioxide NAAQS are due on January 22, 2013); and 75 FR 35520, at 35573–35580 (June 22, 2010) (NSR SIP revisions for the 1-hour sulfur dioxide NAAQS are due on June 2, 2013). We encourage the SEC to make any necessary revisions to the NSR rules to address these revised NAAQS, and we encourage NDEP to adopt and submit the revised NSR rules as a SIP revision prior to the upcoming deadlines. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\28JNP1.SGM 28JNP1 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 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 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this proposed 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). rmajette on DSK2TPTVN1PROD with PROPOSALS 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 costeffective 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 the limited approval/limited disapproval action proposed 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 proposed to approve and disapprove pre-existing requirements VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 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 proposes to approve and disapprove 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. 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 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 38565 tribal officials in the development of regulatory policies that have tribal implications.’’ This proposed 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 the Federal 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 proposes to approve and disapprove a State rule 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. The 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 E:\FR\FM\28JNP1.SGM 28JNP1 38566 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 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 proposed 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 proposes a limited approval/limited disapproval of certain State requirements for inclusion into the SIP under section 110 and subchapter I, part D of the Clean Air Act and will not inand-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. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Lead, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Authority: 42 U.S.C. 7401 et seq. Dated: June 20, 2012. Jared Blumenfeld, Regional Administrator, Region IX. [FR Doc. 2012–15873 Filed 6–27–12; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA—R06–RCRA–2012–0367; FRL–9692–6] Louisiana: Final Authorization of State Hazardous Waste Management Program Revisions Environmental Protection Agency (EPA). ACTION: Proposed rule. rmajette on DSK2TPTVN1PROD with PROPOSALS AGENCY: The State of Louisiana has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant Final authorization to the State of Louisiana. In the ‘‘Rules and Regulations’’ section of this Federal Register, EPA is SUMMARY: VerDate Mar<15>2010 15:17 Jun 27, 2012 Jkt 226001 authorizing the changes by an immediate final rule. EPA did not make a proposal prior to the immediate final rule because we believe this action is not controversial and do not expect comments that oppose it. We have explained the reasons for this authorization in the preamble to the immediate final rule. Unless we get written comments which oppose this authorization during the comment period, the immediate final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we receive comments that oppose this action, we will withdraw the immediate final rule and it will not take effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time. Send your written comments by July 30, 2012. DATES: Send written comments to Alima Patterson, Region 6, Regional Authorization Coordinator, (6PD–O), Multimedia Planning and Permitting Division, at the address shown below. You can examine copies of the materials submitted by the State of Louisiana during normal business hours at the following locations: EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733, phone number (214) 665–6444; or Louisiana Department of Environmental Quality, 602 N. Fifth Street, Baton Rouge, Louisiana 70884–2178, phone number (225) 219–3559. Comments may also be submitted electronically or through hand delivery/courier; please follow the detailed instructions in the ADDRESSES section of the immediate final rule which is located in the Rules section of this Federal Register. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Alima Patterson (214) 665–8533. For additional information, please see the immediate final rule published in the ‘‘Rules and Regulations’’ section in this issue of the Federal Register. SUPPLEMENTARY INFORMATION: Dated: June 15, 2012. Samuel Coleman, Acting Regional Administrator, Region 6. [FR Doc. 2012–15871 Filed 6–27–12; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 120307159–2155–01] RIN 0648–BB99 Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Framework Adjustment 6 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule, request for comments. AGENCY: NMFS proposes a change in the Mid-Atlantic Fishery Management Council’s risk policy regarding stocks without an overfishing limit. The current risk policy does not allow increases of the acceptable biological catch for stocks that do not have an overfishing limit derived from the stock assessment. The modification will allow increases of the acceptable biological catch for stocks that have stable or increasing trends in abundance, and for which there is robust scientific information to suggest that an increased acceptable biological catch will not lead to overfishing. DATES: Public comments must be received no later than 5 p.m., eastern standard time, on July 30, 2012. ADDRESSES: Copies of supporting documents used by the Mid-Atlantic Fishery Management Council (Council), including the Supplemental Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA) for Framework Adjustment 6, are available from: Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The EA/RIR/IRFA is accessible via the Internet at https://www.nero.noaa.gov. You may submit comments, identified by NOAA–NMFS–2012–0110, by any one of the following methods: • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the ‘‘submit a comment’’ icon, then enter NOAA–NMFS–2012–0110 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the SUMMARY: E:\FR\FM\28JNP1.SGM 28JNP1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 125 (Thursday, June 28, 2012)]
[Proposed Rules]
[Pages 38557-38566]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15873]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0141; FRL-9694-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing a limited approval and limited disapproval of
revisions to the applicable state implementation plan for the State of
Nevada. The submitted 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 proposing 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. If finalized as proposed, this limited disapproval action
would not trigger sanctions under section 179 of the Clean Air Act but
would 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: Written comments must be received on or before July 30, 2012.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0141, by one of the following methods:
1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
2. Email: R9airpermits@epa.gov.
3. Mail or deliver: Gerardo Rios (AIR-3), 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 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 www.regulations.gov or email.
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 email directly to EPA, your email
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. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses.
Docket: The index to the docket for this action 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: 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 at
yannayon.laura@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA.

Table of Contents

I. The State's Submittals
A. Which rules did the state submit?
B. What is the regulatory history of the Nevada SIP?
C. What are the existing Nevada rules governing NSR in the
Nevada SIP?
D. What is the purpose of this proposed rule?
II. EPA's Evaluation
A. How is EPA evaluating the rules?
B. Do the rules meet the evaluation criteria?
1. Previous Deficiencies in Prior-Submitted NSR Rules
2. New Deficiencies in NSR Rules
3. Conclusion
III. Public Comment and Proposed Action
IV. Statutory and Executive Order Reviews

I. The State's Submittals

A. Which rules did the state submit?

On January 24, 2011, the Nevada Division of Environmental
Protection (NDEP) submitted a revision to the Nevada State
Implementation Plan (SIP) to EPA for approval or disapproval under
section 110(k) of the Clean Air Act (CAA or ``Act''). NDEP's submittal
includes 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''). In addition to the NSR rules, NDEP's
January 24, 2011 submittal contains evidence of public notice and
adoption of the rules, or amendments to the rules, since March 2006.
Evidence of public notice and adoption of the NSR rules or amendments
that predate March 2006 were previously submitted by NDEP in SIP
revision submittals dated February 16, 2005 and January 12, 2006. By
letter dated February 17, 2011, we found that the January 24, 2011
submittal fulfills the completeness criteria in 40 CFR part 51,
appendix V.
---------------------------------------------------------------------------

\1\ We note that the stationary source permitting rules that are
the subject of this proposed 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.
---------------------------------------------------------------------------

On November 9, 2011, NDEP replaced one of the NSR rules, that had
been submitted on January 24, 2011 (NAC 445B.3457) and that had been
submitted as a temporary regulation, with the version of the rule that
had been adopted by the State Environmental Commission (SEC) as a
permanent regulation, and enclosed the related evidence of public
notice and adoption for the permanent regulation.
On May 21, 2012, NDEP submitted a small set of additional NSR-
related rules [and one definition from the Nevada Revised Statutes
(NRS)] to supplement the NSR rules submitted on January 24, 2011 and
November 9, 2011. NDEP's May 21, 2012 submittal also includes certain
clarifications concerning the previously-submitted NSR rules, and
documentation supporting the selection

[[Page 38558]]

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 proposing action in this document.

Table 1--Submitted Rules (and Statutory Definition) Governing NSR for Stationary Sources Under NDEP Jurisdiction
----------------------------------------------------------------------------------------------------------------
Submittal
Submitted rule Title Adoption date date
----------------------------------------------------------------------------------------------------------------
NAC 445B.003...................... ``Adjacent properties'' defined.......... 11/03/93............ 01/24/11
NAC 445B.0035..................... ``Administrative revision to a Class I 08/19/04............ 01/24/11
operating permit'' defined.
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'' 10/03/95............ 01/24/11
defined.
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'' 11/03/93............ 01/24/11
defined.
NAC 445B.082...................... ``General permit'' defined............... 10/03/95............ 01/24/11
NAC 445B.083...................... ``Good engineering practice stack 10/04/05............ 01/24/11
height'' defined.
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'' 06/17/10............ 01/24/11
defined.
NAC 445B.138...................... ``Potential to emit'' defined............ 10/05/10............ 01/24/11
NAC 445B.142...................... ``Prevention of significant deterioration 11/03/93............ 01/24/11
of air quality'' defined.
NAC 445B.147...................... ``Program'' defined...................... 11/03/93............ 01/24/11
NAC 445B.154...................... ``Renewal of an operating permit'' 11/03/93............ 01/24/11
defined.
NAC 445B.156...................... ``Responsible official'' defined......... 06/17/10............ 01/24/11
NAC 445B.157...................... ``Revision of an operating permit'' 08/19/04............ 01/24/11
defined.
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; 06/17/10............ 01/24/11
exception; restriction on transfers.
NAC 445B.287(2)................... [Provision addressing the operating 06/17/10............ 05/21/12
permit requirements for certain types of
Class I sources].
NAC 445B.288...................... Operating permits: Exemptions from 03/18/08............ 01/24/11
requirements; insignificant activities.
NAC 445B.295...................... Application: General requirements........ 09/06/06............ 01/24/11
NAC 445B.297...................... Application: Submission; certification; 03/08/06............ 01/24/11
additional information.
NAC 445B.298...................... Application: Official date of submittal.. 06/17/10............ 01/24/11
NAC 445B.305...................... Operating permits: Imposition of more 06/17/10............ 01/24/11
stringent standards for emissions.
NAC 445B.308...................... Prerequisites and conditions for issuance 03/18/08............ 01/24/11
of certain operating permits; compliance
with applicable state implementation
plan.
NAC 445B.310...................... Environmental evaluation: Applicable 09/06/06............ 01/24/11
sources and other subjects; exemption.
NAC 445B.311...................... Environmental evaluation: Contents; 10/05/10............ 01/24/11
consideration of good engineering
practice stack height.
NAC 445B.313...................... Method for determining heat input: Class 10/05/10............ 01/24/11
I sources.
NAC 445B.3135..................... Method for determining heat input: Class 11/19/02............ 01/24/11
II sources.
NAC 445B.314...................... Method for determining heat input: Class 11/19/02............ 01/24/11
III sources.

[[Page 38559]]

NAC 445B.315...................... Contents of operating permits: Exception 03/08/06............ 01/24/11
for operating permits to construct;
required conditions.
NAC 445B.318...................... Operating permits: Requirement for each 03/08/06............ 01/24/11
source; form of application; issuance or
denial; posting.
NAC 445B.319...................... Operating permits: Administrative 08/19/04............ 01/24/11
amendment.
NAC 445B.325...................... Operating permits: Termination, reopening 06/17/10............ 01/24/11
and revision, revision, or revocation
and reissuance.
NAC 445B.331...................... Request for change of location of 09/06/06............ 01/24/11
emission unit.
NAC 445B.3361..................... General requirements..................... 06/17/10............ 01/24/11
NAC 445B.3363..................... Operating permit to construct: 12/09/09............ 01/24/11
Application.
NAC 445B.33637.................... Operating permit to construct for 08/19/04............ 01/24/11
approval of plantwide applicability
limitation: Application.
NAC 445B.3364..................... Operating permit to construct: Action by 12/09/09............ 01/24/11
Director on application; notice; public
comment and hearing.
NAC 445B.3365..................... Operating permit to construct: Contents; 03/08/06............ 01/24/11
noncompliance with conditions.
NAC 445B.33656.................... Operating permit to construct for 03/08/06............ 01/24/11
approval of plantwide applicability
limitation: Contents; noncompliance with
conditions.
NAC 445B.3366..................... Expiration and extension of operating 09/06/06............ 01/24/11
permit to construct; expiration and
renewal of plantwide applicability
limitation.
NAC 445B.3368..................... Additional requirements for application; 12/09/09............ 01/24/11
exception.
NAC 445B.3375..................... Class I-B application: Filing requirement 09/06/06............ 01/24/11
NAC 445B.3395..................... Action by Director on application; 03/18/08............ 01/24/11
notice; public comment and hearing;
objection by Administrator; expiration
of permit.
NAC 445B.340...................... Prerequisites to issuance, revision or 03/18/08............ 01/24/11
renewal of permit.
NAC 445B.342...................... Certain changes authorized without 10/04/05............ 01/24/11
revision of permit; notification of
authorized changes.
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 09/06/06............ 01/24/11
incorporate conditions of certain
permits to construct.
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; 10/05/11............ 11/09/11
notice; public comment and hearing;
expiration of permit.
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; 09/06/06............ 01/24/11
expiration of permit.
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
----------------------------------------------------------------------------------------------------------------

B. What is the regulatory history of the Nevada SIP?

On April 17, 2007 (72 FR 19144), we proposed to disapprove a
previous version of essentially the same set of NSR rules that we are
taking action on today. In that proposed rule, we described in detail
the evolution of the Nevada SIP from 1972 through the mid-1980's.
Please see our April 17, 2007 proposed rule (at page 19145) for
additional details on the evolution of the Nevada SIP during that
period. In more recent years, NDEP has submitted various updates to the
Nevada SIP, and EPA has over time taken a number of actions to approve
(or in a few cases, disapprove) these SIP updates. See, e.g., 71 FR
51766 (August 31, 2006) (approval of updated statutory provisions); 71
FR 71486 (December 11, 2006)(approval of updated monitoring and
volatile organic compound rules); and 72 FR 25971 (May 8, 2007)
(approval of updated visible emissions and particulate matter rules).
We finalized our April 17, 2007 proposed disapproval of the previous
version of the NSR rules on April 16, 2008 (73 FR 20536). Today's
proposal continues the process of updating the Nevada SIP by proposing
action on a new set of NSR rules submitted by NDEP that reflect a
number of revisions relative to the previous set of NSR rules that EPA
disapproved in 2008.

C. What are the existing Nevada rules governing NSR in the Nevada SIP?

Table 2 lists the existing rules in the Nevada SIP governing NSR
for sources under NDEP jurisdiction (i.e., other than those related to
nonattainment NSR). As shown in table 2, these rules were approved into
the SIP at various times in the 1970's and 1980's. The rules in table 2
would be replaced in, or otherwise deleted from, the SIP by the
submitted set of rules (and one statutory provision) listed in table 1
if EPA were to take final action as proposed herein.

[[Page 38560]]

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 43 FR 1341 (January 9, 1978).
the issuance of either a registration certificate or
an operating permit can be obtained from the
Director.''].
NAC 445.704--Registration certificates and operating 49 FR 11626 (March 27, 1984).
permits required.
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; 49 FR 11626 (March 27, 1984).
application; fee; issuance, denial; expiration.
NAC 445.712--Operating permits: Prerequisite; 49 FR 11626 (March 27, 1984).
application; fee; issuance, denial; posting.
NAC 445.713--Operating permits: Renewal................ 49 FR 11626 (March 27, 1984).
NAC 445.714--Operating permits: Replacement of lost or 49 FR 11626 (March 27, 1984).
damaged permits.
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 46 FR 21758 (April 14, 1981).
of New Sources''), subsection 13.1.3(1).
NAQR article 13.1--(``General Provisions for the Review 40 FR 13306 (March 26, 1975).
of New Sources''), subsections 13.1.4, 13.1.5, 13.1.6,
and 13.1.7.
NAQR article 13.2--[applicability thresholds for 47 FR 27070 (June 23, 1982).
environmental evaluations (EEs)], subsections 13.2.3
and 13.2.4.
NAQR article 13.3--[content requirements for EEs], 47 FR 27070 (June 23, 1982).
subsection 13.3.1, 13.3.1.1, 13.3.1.2\2\.
----------------------------------------------------------------------------------------------------------------

D. What is the purpose of this proposed rule?
---------------------------------------------------------------------------

\2\ NDEP'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).
---------------------------------------------------------------------------

The purpose of this proposed rule is to present our evaluation
under the CAA and EPA's regulations of the new and amended NSR rules
submitted by NDEP on January 24, 2011, November 9, 2011, and May 21,
2012. We provide our reasoning in general terms below but provide more
detailed analysis in the technical support document (TSD) that has been
prepared for this proposed rulemaking.

II. EPA's Evaluation

A. How is EPA evaluating the rules?

EPA has reviewed the rules submitted on January 24, 2011, November
9, 2011, and May 21, 2012 by NDEP governing NSR for stationary sources
under NDEP jurisdiction for compliance with the CAA requirements for
SIPs in general set forth in CAA section 110(a)(2), for compliance with
EPA regulations for stationary source permitting programs in 40 CFR
part 51, sections 51.160 through 51.164, and also for compliance with
CAA requirements for SIP revisions in CAA section 110(l).\3\ As
described below, EPA is proposing a limited approval and limited
disapproval of the submitted NSR rules.
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\3\ CAA section 110(l) requires SIP revisions to be subject to
reasonable notice and public hearing prior to adoption and submittal
by States to EPA and prohibits EPA from approving any SIP revision
that would interfere with any applicable requirement concerning
attainment and reasonable further progress, or any other applicable
requirement of the CAA.
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B. Do the rules meet the evaluation criteria?

As to procedural requirements for SIPs and SIP revisions, we find
that, based on our review of the public participation documentation
included in the January 24, 2011 and November 9, 2011, as well as the
earlier NSR SIP submittals dated February 16, 2005 and January 12,
2006, NDEP has provided sufficient evidence of public notice and
opportunity for comment and hearing prior the adoption and submittal to
EPA for the rules that are the subject of today's proposed action.
As to the substantive requirements, we have used our comprehensive
review of the previous set of NSR rules that formed the basis for our
April 17, 2007 proposed rule as the starting point for the analysis of
the current set of NSR rules. In our April 17, 2007 proposed rule, we
found that, in general, the submitted NSR rules that were the subject
of that proposed action met the relevant CAA and regulatory criteria,
but we proposed to disapprove the rules on the basis of 10 specific
deficiencies that we found in the rules. Following our final
disapproval action published on April 16, 2008 (73 FR 20536), the SEC
adopted revisions to the NSR rules to address the deficiencies that EPA
had identified, and NDEP re-submitted the rules, which are the subject
of today's action. As explained further below, we have found that the
amended rules now sufficiently address all of the deficiencies that EPA
had found in the prior set of NSR rules, but that we have identified
certain new deficiencies that prevent full approval of the rules. The
new deficiencies relate to new requirements that were not in effect at
the time of EPA's April 2008 final rule.
1. Previous Deficiencies in Prior-Submitted NSR Rules
In the following paragraphs, we cite the deficiencies that we
identified in 2007, describe how the rules have been amended by the
SEC, and evaluate whether the revisions fully resolve the

[[Page 38561]]

issues previously raised by EPA. In a separate subsection, we describe
the new deficiencies in the NSR rules.
First, we found that certain submitted rules used undefined terms,
contained incorrect citations, or relied on rules or statutory
provisions that had not been submitted for approval as part of the SIP,
or that multiple versions of the same rule were included in the same
submittal; and thus were unnecessarily ambiguous. Specifically, we
found that:
NAC 445B.3366 (``Expiration and extension of operating
permit to construct; expiration and renewal of plantwide applicability
limitation'') relied on the term, ``commence,'' that is not defined in
the SIP for contexts outside of CAA section 111 (Standards of
performance for new stationary sources)(i.e., not defined for NSR
purposes);
NAC 445B.069 (``Federally enforceable'' defined) included
incorrect citations to EPA regulations;
The following submitted rules relied on rules or statutory
provisions that hade not been submitted: NAC 445B.287 [which cited
subsection (2) but did not include subsection (2)], NAC 445B.104
(citing NRS 485.050), NAC 445B.179 (citing NRS 482.123), and NAC
445B.311 (citing NAC 445B.083); and
Multiple versions of the following rules were submitted:
NAC 445B.308, NAC 445B.3363, and NAC 445B.3364.
To address these issues:
SEC adopted a rule (NAC 445B.0423) that defines
``commence'' for NSR purposes and NDEP submitted the rule on May 21,
2012.
SEC amended NAC 445B.069 (``Federally enforceable''
defined) to correct the citations to EPA regulations and NDEP re-
submitted the rule on January 24, 2011.
NDEP submitted NAC 445B.287, subsection (2), and NRS
485.050 on May 21, 2012; SEC amended the rules such that the NSR
program no longer relies on NRS 482.123 (``Special mobile equipment'');
and NDEP submitted NAC 445B.083 on January 24, 2011.
The current submittals evaluated herein, dated January 24,
2011, November 9, 2011, and May 21, 2012 do not contain multiple
versions of the same rule.
Second, we concluded that the definition of ``potential to emit''
in submitted rule NAC 445B.138 must be revised to require effective
limits and to include criteria by which a limit is judged to be
practicably enforceable by NDEP. In response, SEC amended the rule to
allow certain physical or operational limitations on the capacity of a
stationary source to emit pollutants to be treated as part of its
design for the purposes of determining its potential to emit if the
limitations are ``federally enforceable,'' a term that is appropriately
defined in NAC 445B.069. This revision fully addresses the issue that
EPA had identified in the previous version of the rule. NDEP included
the revised rule NAC 445B.187 in its January 24, 2011 SIP submittal.
Third, we found that NDEP's stationary source program may not be as
inclusive as required under the CAA depending upon whether the
exclusion of ``special mobile equipment'' from the definition of
``stationary source'' in submitted rule NAC 445B.187 extends to engines
and vehicles that are not considered to be ``nonroad.'' In response,
SEC amended NAC 445B.187 to delete the exclusion for ``special mobile
equipment,'' and NDEP included the revised rule NAC 445B.138 in its
January 24, 2011 SIP submittal.
Fourth, we found that the method for determining heat input for
class I sources \4\ in submitted rule NAC 445B.313 must be amended to
require that combustion sources make applicability determinations based
on the maximum heat input. In response, SEC amended NAC 445B.313
accordingly, and NDEP included the revised rule NAC 445B.313 in its
January 24, 2011 SIP submittal.
---------------------------------------------------------------------------

\4\ EPA 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 that NAC 445B.331 (``Request for change of
location of emission unit'') must be amended to limit its applicability
to location changes within the confines of the existing stationary
source at which the emission unit is originally permitted. NDEP
explained that NAC 445B.331 relates to temporary sources and that such
sources must choose between two types of permits: A normal stationary
source operating permit \5\ or a general operating permit. If the
former is chosen, the normal permitting process occurs, and if the
latter is chosen, the owner or operator must obtain a general operating
permit and request to operate at the selected location within the
constraints of the general operating permit. Either way, an
environmental evaluation (EE) is performed to ensure compliance with
the national ambient air quality standards (NAAQS) (with the exception
of NAAQS that have been added or revised in recent years--see II.B.2 of
this document). NDEP further explained that the request for approval of
a specific location under NAC 445B.331 simply allows the NDEP to
evaluate the owner or operator's proposal to ensure that the proposal
complies with the terms and conditions of the general operating permit.
Based on NDEP's explanation, we believe that no further changes in this
rule are required.
---------------------------------------------------------------------------

\5\ Nevada's NSR program uses the term ``operating permit to
construct'' or just ``operating permit'' to refer to permits that
EPA generally cites as ``construction'' permits.
---------------------------------------------------------------------------

Sixth, we found that submitted rule NAC 445B.3477 (``Class II
general permit'') must be amended to identify the requirements for
general permits, the public participation requirements for issuing such
permits, and the criteria by which stationary sources may qualify for
such a permit. NDEP has explained that, under Nevada's regulations, a
``general permit'' is a type of operating permit (one issued by the
Director to cover numerous similar stationary sources) and that
requirements for a general permit and the criteria by which sources may
qualify for a general permit are found in the general permit. In
addition, NDEP has explained that class II general permits are subject
to requirements that are similar to those for class II operating
permits, and that NDEP performs a worst-case environmental evaluation
to ensure that the terms and conditions of the class II general
operating permit will ensure compliance with the NAAQS (with the
exception of NAAQS that have been added or revised in recent years--see
II.B.2 of this document). We find this explanation satisfactory. As to
public participation, SEC amended the rule to establish public
participation requirements for issuing class II general permits, and
NDEP submitted the revised rule on January 24, 2011. We have reviewed
these new requirements and find them acceptable.
Seventh, we found that submitted rule NAC 445B.311 (``Environmental
evaluation: Required information'') allows for NDEP to authorize use of
a modification or substitution of an EPA-approved model specified in
appendix W of 40 CFR part 51 without EPA approval and must be amended
accordingly to comply with 40 CFR 51.160(f). In response, SEC has
amended the rule to require written approval by EPA for the use of
modified or

[[Page 38562]]

substitute model, and to require public participation prior to
authorization of the use of such a modified or substitute model. NDEP
submitted the revised rule on January 24, 2011.
Eighth, to comply with 40 CFR 51.161 (``Public availability of
information''), we concluded that the NSR rules must be amended to
provide for adequate public review of new or modified class II sources;
for notification to the air pollution control agencies for Washoe
County or Clark County for those sources proposed to be constructed or
modified in Washoe County or Clark County, respectively; and to provide
for public participation for new or modified sources of lead with
potential to emit 5 tons per year or more.
In response, the SEC has amended the rule to require public
participation prior to issuance of all new class II permits and prior
to issuance of revisions to class II permits for which allowable
emissions would increase in excess of specified thresholds; to require
notification to the relevant county air agencies; and to provide for
public participation for new or modified sources of lead with
potentials to emit 5 tons per year or more. NDEP submitted the revised
rule on November 9, 2011. See NAC 445B.3457, subsections (5) and (6).
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 are 40 tons per year for carbon
monoxide, volatile organic compounds, nitrogen oxides, and sulfur
dioxide; 15 tons per year for particulate matter with an aerodynamic
diameter of less than or equal to a nominal ten microns
(PM10); and 0.6 tons per year for lead (Pb). In its
submittal dated May 21, 2012, NDEP included documentation that
indicates that selected thresholds capture more than 80 percent of the
emissions associated with stationary sources.
EPA regulations in 40 CFR 51.160(e) allow State NSR programs to
exclude new minor sources and minor modifications from the NSR program
so long as such sources and modifications are not environmentally
significant, consistent with the de minimis exemption criteria set
forth in Ala. Power Co. v. Costle, 636 F.2d 323, at 360-361 (D.C. Cir.
1979).\6\ Given that 40 CFR 51.160(e) allows for sources and
modifications that are not environmentally significant to be excluded
entirely from the NSR program, it follows that a State or local agency
can choose to exempt some new sources or modifications subject to
permitting from public participation requirements, but, it must do so
consistent with the de minimis principles and by application of well-
defined objective criteria. Thus, EPA believes that 40 CFR 51.161(a)
allows for the tailoring of the public participation process for less
environmentally significant sources and modifications. See, generally,
60 FR 45530, at 45548-45549 (August 31, 1995). In this instance, we
believe that the emissions-based thresholds represent well-defined
objective criteria and, based on NDEP's documentation of the extent to
which overall stationary source emissions are covered by sources
subject to mandatory public participation, we find that the thresholds
established in NAC 445B.3457 are reasonably calculated to exclude from
mandatory public participation only less environmentally significant
sources and modifications. This is acceptable.
---------------------------------------------------------------------------

\6\ While the Alabama Power court discusses the de minimis
principle in the context of a Federal administrative agency's
authority in promulgating rules to satisfy statutory requirements,
the same principle can be applied where a State promulgates rules to
satisfy requirements by a Federal administrative agency. With
regards to the de minimis principle, the Alabama Court writes:
``Determination of when matters are truly de minimis naturally will
turn on the assessment of particular circumstances, and the agency
will bear the burden of making the required showing. But we think
most regulatory statutes, including the Clean Air Act, permit such
agency showings in appropriate cases. While the difference is one of
degree, the difference of degree is an important one. Unless
Congress has been extraordinarily rigid, there is likely a basis for
an implication of de minimis authority to provide exemption when the
burdens of regulation yield a gain of trivial or no value. That
implied authority is not available for a situation where the
regulatory function does provide benefits, in the sense of
furthering the regulatory objectives, but the agency concludes that
the acknowledged benefits are exceeded by the costs. For such a
situation any implied authority to make cost-benefit decisions must
be based not on a general doctrine but on a fair reading of the
specific statute, its aims and legislative history.'' See Ala. Power
Co. v. Costle, 636 F.2d 323, at 360-361 (D.C. Cir. 1979).
---------------------------------------------------------------------------

In addition, with respect to public participation associated with
permits for new class II sources and for class II modifications, we
note that the SEC has 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. EPA believes
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.\7\ 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).''
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\7\ As noted in footnote 4, 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.
---------------------------------------------------------------------------

Subsection (6) of NAC 445B.3457 provides two means of providing
public notice. Paragraph (b) of subsection (6) requires a copy of the
notice to be published ``on an Internet Web site designed to give
general public notice,\8\ '' and paragraph (c) of subsection (6)
requires notification through a mailing list developed to include
individuals that have requested to be included on such a list. We
believe that such notification, with one exception, satisfies the
requirement to provide the public with notice through ``prominent
advertisement'' in the area affected.
---------------------------------------------------------------------------

\8\ NDEP has clarified in its submittal dated May 21, 2012 that
NDEP's own Web site is the ``Internet Web site'' referred to in NAC
445B.3457. The submittal refers to the wording ``state Web site''
which was included in the January 24, 2011 submittal, rather than
``Internet Web site'' of the November 9, 2011 submittal for NAC
445B.3457, but we believe the clarification is the same for either
term.
---------------------------------------------------------------------------

While EPA believes that notice of permitting actions may be made by
means other than traditional newspaper notice for most types of minor
sources, EPA also believes that, with respect to synthetic minor
sources, an exception should be made to the use of electronic means as
the sole means to notify the general public of proposed permitting
actions. For synthetic minor sources, i.e., sources that have taken
enforceable limitations to restrict their potential to emit below major
source thresholds, we believe that the traditional means of
notification (i.e., newspaper notice) should be included as one of the
means for notifying the general public of proposed permit actions on
the grounds that such 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).
NAC 445B.3457 does not provide for traditional newspaper notice of
class II sources that constitute synthetic minor sources, but although
we recognize that there may be instances where a proposed new synthetic
minor source

[[Page 38563]]

would not be subject to newspaper notice because, under Nevada's
regulations, it is considered a class II source subject to NAC
445B.3457, rather than a class I source subject to NAC 445B.3364 (for
which newspaper notice is required), we anticipate that such instances
would be few in number. This is because, with very few exceptions,
Nevada's NSR rules apply to sources in ``attainment'' or
``unclassified'' areas \9\ where the major source thresholds (for the
purposes of NSR) are 250 tons per year for most types of sources
whereas the requirements for class I sources under NAC 445B.3364 (under
which newspaper notice is required) apply to sources with potentials to
emit 100 tons per year or more. Thus, most synthetic minor sources
under Nevada's regulations would be considered ``class I'' sources (and
subject to traditional newspaper notice), because they would have
potentials to emit at least 100, but less than 250, tons per year,
although still considered ``minor sources'' for the purposes of NSR.
Therefore, we do not find that the deficiency in Nevada's public notice
requirements with respect to synthetic minor sources to be significant.
Nonetheless, we recommend 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.
---------------------------------------------------------------------------

\9\ See 40 CFR 81.329 for the designations of air quality
planning areas in the State of Nevada. As shown in the tables
codified at 40 CFR 81.329, other than certain areas within Clark and
Washoe Counties, air quality planning areas in Nevada are designated
as attainment or unclassifiable.
---------------------------------------------------------------------------

Ninth, we found that the affirmative defense provision in submitted
rule NAC 445B.326 (``Operating permits: Assertion of emergency as
affirmative defense to action for noncompliance'') was not approvable
under CAA section 110(a)(2) as written because it could be applied to
technology-based emission limitations approved into the SIP. NDEP did
not include NAC 445B.326 in the revised sets of NSR rules submitted to
EPA for action as a SIP revision. Furthermore an affirmative defense
provision, such as that provided for in NAC 445B.326, is not required
to be included in a SIP NSR program; therefore, the previously-
identified deficiencies in NAC 445B.326 do not need to be considered
further in the context of action on the submitted NSR rules.
Lastly, while the submitted rules include a specific prohibition on
approving a 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, we found that the relevant provision (i.e., 445B.308(3))
includes director's discretion (* * * if ``the Director determines'' *
* *), which must be removed in order for EPA to approve the rules as
meeting the requirements of 40 CFR 51.164. In response, the SEC amended
the rule to clarify that the Director's discretion in this instance is
limited by the additional procedural requirements set forth in
subsection (3) of NAC 445B.311. We have reviewed the additional
procedural requirements in subsection (3) of NAC 445B.311 and find that
they are consistent with the related requirements in 40 CFR 51.164.
NDEP submitted the revised rule on January 24, 2011.
In conclusion, based on our point-by-point evaluation of the
previous deficiencies in the previously-submitted NSR rules, as
described above and in further detail in our TSD, we find that Nevada
has adequately addressed all of the previously-identified deficiencies
by submittal of appropriately amended rules and supporting
documentation.
2. New Deficiencies in NSR Rules
While we believe that Nevada has adequately addressed the
previously-identified deficiencies in the NSR rules, we now find 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.
To address this requirement, NAC 445B.310 and 445B.311 require
permit applicants to prepare environmental evaluations (EE) that
contain dispersion analyses showing the effect of the source on the
quality of the ambient air. As explained below, NAC 445B.308, 445B.310,
and 445B.311 represent a legally enforceable procedure that enables
NDEP to make the necessary determinations under 40 CFR 51.160 with
respect to the national ambient air quality standards, circa 1991, but
not with respect to the new or revised national standards promulgated
by EPA since that time.
Subsection (2) of NAC 445B.308 prohibits the issuance of an
operating permit or revision thereto for any stationary source if the
EE shows that the stationary source would ``prevent the attainment and
maintenance of the state or national ambient air quality standards. For
the purposes of this paragraph, only those ambient air quality
standards that have been established in NAC 445B.22097 need to be
considered in the environmental evaluation.''
NAC 445B.22097 in turn lists the Nevada ambient air quality
standards (``Nevada standards'') and national ambient air quality
standards (``National standards'' or NAAQS).\10\ With respect to the
NAAQS, NAC 445B.22097 has not been updated since 1991 and thus does not
include the new, revised, or revoked NAAQS since that time. Moreover,
NAC 445B.22097 includes a note that states: ``The Director shall use
the Nevada standards in considering whether to issue a permit for a
stationary source and shall ensure that the stationary source will not
cause the Nevada standards to be exceeded in areas where the general
public has access.'' The Nevada ambient air quality standards are equal
to the NAAQS (i.e., as of 1991) for those pollutants for which both
Nevada and EPA have established ambient standards, but, because the
Nevada standards do not reflect the changes in the NAAQS since 1991,
reliance on them for permitting purposes does not ensure protection of
the new or revised NAAQS established since then as NDEP reviews permit
applications for new or modified stationary sources.
---------------------------------------------------------------------------

\10\ EPA approved NAC 445B.22097 (``Standards of quality for
ambient air'') as part of the Nevada SIP in a separate rulemaking.
See 71 FR 15040 (March 27, 2006).
---------------------------------------------------------------------------

With respect to the ozone NAAQS, we therefore encourage the SEC to
update NAC 445B.22097 to take into account the replacement of the 1-
hour ozone standard (0.12 ppm) with an 8-hour ozone standard (0.075
ppm), although we do not consider the failure to update the rule for
ozone as a significant deficiency because, given the regional nature of
ambient ozone concentrations, applicants for permits for new or
modified stationary sources are not required to show, through
dispersion modeling techniques, that the ozone precursor emissions from
the source or modification would not violate the standard.
With respect to PM2.5, we recognize that NDEP submitted
``infrastructure''

[[Page 38564]]

SIPs \11\ on February 26, 2008 and September 15, 2009 to address the
1997 PM2.5 NAAQS and 2006 PM2.5 NAAQS,
respectively. In both such PM2.5 ``infrastructure'' SIPs,
NDEP indicated that the NSR requirements for the PM2.5 NAAQS
were to be met by evaluating new and modified sources for compliance
with the PM10 standard. At the time these ``infrastructure''
SIPs were submitted, EPA's policy allowed States to permit new or
modified PM2.5 sources using the PM10 NSR program
requirements as a surrogate for PM2.5. We also recognize
that we did not take timely action on the two ``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 PM2.5 emissions from new or modified sources
directly to determine whether such sources would violate the 24-hour
(35 [micro]g/m\3\) or annual (15 [micro]g/m\3\) PM2.5
standards. 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
PM2.5 and the lapse of the surrogate policy, we cannot now
fully approve the submitted NSR rules. In response, the State
Environmental Commission must revise the NSR rules to ensure protection
of the PM2.5 NAAQS in the issuance of permits for new or
modified sources or EPA must promulgate a FIP within two years of final
action.
---------------------------------------------------------------------------

\11\ ``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.
---------------------------------------------------------------------------

With respect to lead (Pb), we recognize 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 [micro]g/m\3\)
and thus we cannot now fully approve the submitted NSR rules. See 73 FR
66964, 67034-67041 (November 12, 2008). In response, the State
Environmental Commission must revise the NSR rules to ensure protection
of the Pb NAAQS in the issuance of permits for new or modified sources
or EPA must promulgate a FIP within two years of final action.
With respect to new or revised NAAQS for nitrogen dioxide and
sulfur dioxide, and based on the promulgation dates of these new or
revised NAAQS, the State still has additional time to amend its NSR
rules to address the revised NAAQS for these pollutants, and thus we do
not view the failure to update NAC 445B.22097 to address the 2010 1-
hour nitrogen dioxide standard and the 2010 1-hour sulfur dioxide
standard as precluding approval of the submitted NSR rules at this
time. See 75 FR 6474, at 6523-6525 (February 9, 2010) (NSR SIP
revisions for the 1-hour nitrogen dioxide NAAQS are due on January 22,
2013); and 75 FR 35520, at 35573-35580 (June 22, 2010) (NSR SIP
revisions for the 1-hour sulfur dioxide NAAQS are due on June 2, 2013).
We encourage the SEC to make any necessary revisions to the NSR rules
to address these revised NAAQS, and we encourage NDEP to adopt and
submit the revised NSR rules as a SIP revision prior to the upcoming
deadlines.
3. Conclusion
For the reasons stated above, we find that the State has adequately
addressed all of the previously-identified deficiencies in the NSR
rules but new deficiencies related to the new or revised
PM2.5 and Pb NAAQS prevent us from proposing a full approval
of the rules. Therefore, we are proposing a limited approval and
limited disapproval of the submitted NSR rules. We do so based also on
our finding that, while the rules do not meet all of the applicable
requirements, the rules would represent an overall strengthening of SIP
by clarifying and enhancing the NSR permitting requirements.

III. Public Comment and Proposed Action

Pursuant to section 110(k) of the Clean Air Act, and for the
reasons provided above, EPA is proposing 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 proposing a 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 in table
1, above as a revision to the Nevada SIP.
EPA is proposing 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 PM2.5 and 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,\12\ and to
set the stage for remedying deficiencies in the permitting rules with
respect to new or revised national ambient air quality standards for
PM2.5 and Pb. If finalized as proposed, this limited
approval action would 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 PM2.5 or Pb standards.
However, this limited disapproval action would 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.
---------------------------------------------------------------------------

\12\ Final approval of the rules (and statutory provision) in
table 1 would supersede the rules listed in table 2, above, in the
existing Nevada SIP.
---------------------------------------------------------------------------

We will accept comments from the public on this proposed limited
approval and limited disapproval for the next 30 days.

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. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).

[[Page 38565]]

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 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because this proposed 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 the limited approval/limited disapproval
action proposed 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 proposed to approve and disapprove 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 proposes to approve and disapprove 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. 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 proposed 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 the Federal
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 proposes to
approve and disapprove a State rule 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.
The 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

[[Page 38566]]

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 proposed 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 proposes
a limited approval/limited disapproval of certain State requirements
for inclusion into the SIP under section 110 and subchapter I, part D
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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental
relations, Lead, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides.

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

Dated: June 20, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-15873 Filed 6-27-12; 8:45 am]
BILLING CODE 6560-50-P

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