[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Rules and Regulations]
[Pages 20536-20549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8139]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2007-0165; FRL-8543-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is taking final action to approve certain revisions to the 
applicable state implementation plan for the State of Nevada and to 
disapprove certain other revisions. These revisions involve 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. These revisions involve submittal of certain new or amended State 
rules and requests by the State for rescission of certain existing 
rules from the state implementation plan. EPA is taking this action 
under the Clean Air Act obligation to take action on State submittals 
of revisions to state implementation plans. The intended effect is to 
update the applicable state implementation plan with current State 
rules with respect to permitting, where consistent with the Clean Air 
Act.

DATES: Effective Date: This rule is effective on May 16, 2008.

[[Page 20537]]


ADDRESSES: EPA has established docket number EPA-R09-OAR-2007-0165 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., 
Confidential Business Information). 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, (415) 
972-3534, [email protected].

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

Table of Contents

I. Proposed Action
II. NDEP's August 20, 2007 SIP Revision Submittal
III. Public Comments and EPA Responses
    A. Submitted Rules or Rescissions for Which EPA Has Yet to 
Propose Action
    B. Submitted Rules Found to be Separable From Rest of Permitting 
Program
    C. Rules Comprising the Submitted Permit Program
    1. Definitions
    2. General Provisions
    3. Operating Permits Generally
    4. Class I Operating Permits
    5. Class II Operating Permits
    6. Other Issues
    D. Rescissions of Permitting-Related Rules From Applicable SIP
IV. EPA Action
V. Statutory and Executive Order Reviews

I. Proposed Action

    On April 17, 2007 (72 FR 19144), EPA proposed several actions in 
connection with certain revisions to the Nevada State Implementation 
Plan (SIP) submitted by the Nevada Division of Environmental Protection 
(NDEP) under the Clean Air Act (CAA or ``Act''). Our April 17, 2007 
proposal covers the State rules that were included in NDEP's January 
12, 2006 and December 8, 2006 SIP revision submittals and that govern 
applications for, and issuance of, permits for stationary sources. We 
also proposed action on the State's requests for rescission of certain 
permit-related rules in the existing SIP.\1\ Tables 1, 2, and 3 below 
list the relevant submitted rules and rescission requests covered by 
our April 17, 2007 proposed rule.
---------------------------------------------------------------------------

    \1\ We note that the stationary source permitting rules that are 
the subject of this final rule are not intended to satisfy the 
requirements for pre-construction review and permitting of major 
sources or major modifications under part C (``Prevention of 
Significant Deterioration of air quality'') or part D (``Plan 
requirements for nonattainment areas'') of title I of the Clean Air 
Act. Of the 100+ permit-related rules or statutes that were 
submitted by NDEP for approval or for rescission, we are taking 
final action today on all but two (but, also, see response to 
comment 1 for two rules inadvertently left out of our April 
17, 2007 proposal). We are deferring action on the State's requests 
for rescission of rule 25 of general order number 3 of the Nevada 
Public Service Commission and Nevada Revised Statutes (NRS) 704.820 
to 704.900--Construction of utility facilities: utility 
environmental protection act. Rule 25 of general order number 3 and 
NRS 704.820-900 relate to new source review under part D, and as 
such, we will take action on the State's related rescissions after 
the State submits, and we take action on, a revised 
``nonattainment'' new source review program under part D of title I 
of the Clean Air Act.
---------------------------------------------------------------------------

    Table 1 lists the submitted rules that, while related to 
permitting, are separable from the rest of the permitting-related rules 
and thus qualify for action independent of our action on the bulk of 
the permitting-related rules. Table 2 lists the submitted set of rules 
that comprise the bulk of NDEP's stationary source permitting program 
(excluding review under parts C and D of the title I of the CAA). Table 
3 lists the permitting-related rules (in the existing SIP) for which 
NDEP has requested rescission.

           Table 1.--Submitted Rules That Are Separable From the Rest of the Permitting-Related Rules
----------------------------------------------------------------------------------------------------------------
                                                                Adoption    Submittal    April 17, 2007 proposed
          Submitted rule                     Title                date         date              action
----------------------------------------------------------------------------------------------------------------
NAC 445B.021.....................  ``Area source'' defined..     11/03/93     01/12/06  Disapproval.
NAC 445B.028.....................  ``Best available control      03/26/96     01/12/06  Disapproval.
                                    technology'' defined.
NAC 445B.178.....................  ``Source reduction''          03/03/94     01/12/06  Disapproval.
                                    defined.
NAC 445B.196.....................  ``Toxic regulated air         10/03/95     01/12/06  Disapproval.
                                    pollutant'' defined.
NAC 445B.22083...................  Construction, major           10/04/05     01/12/06  Approval.
                                    modification or
                                    relocation of plants to
                                    generate electricity
                                    using steam produced by
                                    burning of fossil fuels.
NAC 445B.250.....................  Notification of planned       10/04/05     01/12/06  Approval.
                                    construction or
                                    reconstruction.
NAC 445B.252.....................  Testing and sampling.....     09/18/03     01/12/06  Approval.
----------------------------------------------------------------------------------------------------------------

    In our April 17, 2007 action, we proposed to approve three, and to 
disapprove four, of the submitted rules we considered separable from 
the rest of the permitting-related program (see table 1). We proposed 
approval of Nevada Administrative Code (NAC) 445B.22083, 445B.250, and 
445B.252 because they strengthen the SIP and otherwise meet all 
applicable requirements. We proposed disapproval of NAC 445B.021, 
445B.178, and 445B.196 because they define terms that are not used in 
any of the other submitted rules or in any of the rules of the existing 
SIP and thus are unnecessary. We proposed to disapprove NAC 445B.028 
(``Best Available Control Technology'' defined) because it is not used 
in any of the other submitted rules and is used only in an existing SIP 
rule for which we proposed to grant NDEP's rescission request.\2\
---------------------------------------------------------------------------

    \2\ ``Best Available Control Technology'' (BACT) is the control 
technology requirement under EPA's Prevention of Significant 
Deterioration (PSD) regulations for pre-construction review and 
permitting of new major sources and major modifications in 
attainment or unclassifiable areas, and we would expect this 
definition to be re-submitted by NDEP when they submit their rules 
implementing PSD for approval by EPA as a SIP revision.
---------------------------------------------------------------------------

    Table 2 lists the submitted rules governing application for, and 
issuance of, permits for stationary sources under NDEP jurisdiction in 
the State of Nevada, excluding the State's rules (yet to be submitted) 
for review and permitting of major sources and major modifications 
under parts C and D of title I of the CAA. In our review of these 
submitted rules, we identified a number of deficiencies that lead us to 
conclude that the submitted rules do not comply with the requirements 
of section 110 and 40 CFR part 51, sections 51.160 through 51.164 and 
that formed the basis for our proposed disapproval.

[[Page 20538]]



 Table 2.--Submitted Rules Governing Application for, and Issuance of, Permits for Stationary Sources Under NDEP
                                                  Jurisdiction
----------------------------------------------------------------------------------------------------------------
                                                                                          Adoption    Submittal
                Submitted rule                                   Title                      date         date
----------------------------------------------------------------------------------------------------------------
NAC 445B.003..................................  ``Adjacent properties'' defined.......     11/03/93     01/12/06
NAC 445B.0035.................................  ``Administrative revision to a Class I     08/19/04     01/12/06
                                                 operating permit'' defined.
NAC 445B.007..................................  ``Affected state'' defined............     11/03/93     01/12/06
NAC 445B.013..................................  ``Allowable emissions'' defined.......     10/04/05     01/12/06
NAC 445B.014..................................  ``Alteration'' defined................     10/03/95     01/12/06
NAC 445B.016..................................  ``Alternative operating scenarios''        10/03/95     01/12/06
                                                 defined.
NAC 445B.019..................................  ``Applicable requirements'' defined...     01/22/98     01/12/06
NAC 445B.035..................................  ``Class I-B application'' defined.....     10/03/95     01/12/06
NAC 445B.036..................................  ``Class I source'' defined............     08/19/04     01/12/06
NAC 445B.037..................................  ``Class II source'' defined...........     09/18/01     01/12/06
NAC 445B.038..................................  ``Class III source'' defined..........     09/18/01     01/12/06
NAC 445B.044..................................  ``Construction'' defined..............     10/04/05     01/12/06
NAC 445B.046..................................  ``Contiguous property'' defined.......     09/16/76     01/12/06
Sec. 2 of R096-05.............................  ``Dispersion technique'' defined......     10/04/05     01/12/06
Sec. 3 of R096-05.............................  ``Excessive concentration'' defined...     10/04/05     01/12/06
NAC 445B.066..................................  ``Existing stationary source'' defined     10/03/95     01/12/06
NAC 445B.068..................................  ``Facility'' defined..................     10/03/95     01/12/06
NAC 445B.069..................................  ``Federally enforceable'' defined.....     11/03/93     01/12/06
NAC 445B.070..................................  ``Federally enforceable emissions          11/03/93     01/12/06
                                                 cap'' defined.
NAC 445B.082..................................  ``General permit'' defined............     10/03/95     01/12/06
Sec. 4 of R096-05.............................  ``Good engineering practice stack          10/04/05     01/12/06
                                                 height'' defined.
NAC 445B.087..................................  ``Increment'' defined.................     11/03/93     01/12/06
NAC 445B.093..................................  ``Major modification'' defined........     08/19/04     01/12/06
NAC 445B.094..................................  ``Major source'' defined..............     05/10/01     01/12/06
NAC 445B.0945.................................  ``Major stationary source'' defined...     08/19/04     01/12/06
NAC 445B.099..................................  ``Modification'' defined..............     10/03/95     01/12/06
NAC 445B.104..................................  ``Motor vehicle'' defined.............     05/10/01     01/12/06
Sec. 5 of R096-05.............................  ``Nearby'' defined....................     10/04/05     01/12/06
NAC 445B.108..................................  ``New stationary source'' defined.....     10/03/95     01/12/06
NAC 445B.117..................................  ``Offset'' defined....................     10/03/95     01/12/06
NAC 445B.123..................................  ``Operating permit'' defined..........     11/19/02     01/12/06
NAC 445B.124..................................  ``Operating permit to construct''          11/19/02     01/12/06
                                                 defined.
NAC 445B.1345.................................  ``Plantwide applicability limitation''     08/19/04     01/12/06
                                                 defined.
NAC 445B.138..................................  ``Potential to emit'' defined.........     03/26/98     01/12/06
NAC 445B.142..................................  ``Prevention of significant                11/03/93     01/12/06
                                                 deterioration of air quality''
                                                 defined.
NAC 445B.147..................................  ``Program'' defined...................     11/03/93     01/12/06
NAC 445B.154..................................  ``Renewal of an operating permit''         11/03/93     01/12/06
                                                 defined.
NAC 445B.156..................................  ``Responsible official'' defined......     11/03/93     01/12/06
NAC 445B.157..................................  ``Revision of an operating permit''        08/19/04     01/12/06
                                                 defined.
NAC 445B.179..................................  ``Special mobile equipment'' defined..     05/10/01     01/12/06
NAC 445B.187..................................  ``Stationary source'' defined.........     05/10/01     01/12/06
NAC 445B.194..................................  ``Temporary source'' defined..........     05/10/01     01/12/06
NAC 445B.287..................................  Operating permits: General                 08/19/04     01/12/06
                                                 requirements; exception; restriction
                                                 on transfers.
NAC 445B.288..................................  Operating permits: Exemptions from         05/10/01     01/12/06
                                                 requirements; insignificant
                                                 activities.
NAC 445B.295..................................  Application: General requirements.....     09/06/06     12/08/06
NAC 445B.297..................................  Application: Submission of application     08/19/04     01/12/06
                                                 and supplementary or corrected
                                                 information.
NAC 445B.298..................................  Application: Official date of              08/19/04     01/12/06
                                                 submittal.
NAC 445B.305..................................  Operating permits: Imposition of more      10/03/95     01/12/06
                                                 stringent standards for emissions.
NAC 445B.308..................................  Prerequisites and conditions for           09/06/06     12/08/06
                                                 issuance of operating permits:
                                                 Environmental evaluation; compliance
                                                 with control strategy; exemption from
                                                 environmental evaluation.
NAC 445B.310..................................  Environmental evaluation: Applicable       09/06/06     12/08/06
                                                 sources.
NAC 445B.311..................................  Environmental evaluation: Required         09/06/06     12/08/06
                                                 information.
NAC 445B.313..................................  Method for determining heat input:         11/19/02     01/12/06
                                                 Class I sources.
NAC 445B.3135.................................  Method for determining heat input:         11/19/02     01/12/06
                                                 Class II sources.
NAC 445B.314..................................  Method for determining heat input:         11/19/02     01/12/06
                                                 Class III sources.
NAC 445B.315..................................  Contents of operating permits:             11/19/02     01/12/06
                                                 Exception for operating permits to
                                                 construct; required conditions.
NAC 445B.318..................................  Operating permits: Separate permit         09/06/06     12/08/06
                                                 required for each source; form of
                                                 application; issuance or denial of
                                                 permit; posting of permit.
NAC 445B.319..................................  Operating permits: Administrative          08/19/04     01/12/06
                                                 amendment.
NAC 445B.325..................................  Operating permits: Termination,            01/22/98     01/12/06
                                                 reopening and revision, revision, or
                                                 revocation and reissuance.
NAC 445B.326..................................  Operating permits: Assertion of            11/03/93     01/12/06
                                                 emergency as affirmative defense to
                                                 action for noncompliance.
NAC 445B.331..................................  Request for change of location of          09/06/06     12/08/06
                                                 emission unit.
NAC 445B.3361.................................  General requirements..................     09/06/06     12/08/06
NAC 445B.3363.................................  Operating permit to construct:             09/06/06     12/08/06
                                                 Application.

[[Page 20539]]

 
NAC 445B.33637................................  Operating permit to construct for          08/19/04     01/12/06
                                                 approval of plantwide applicability
                                                 limitation: Application.
NAC 445B.3364.................................  Operating permit to construct: Review      09/06/06     12/08/06
                                                 of application and determination of
                                                 completeness by director; notice.
NAC 445B.3365.................................  Operating permit to construct:             09/06/06     12/08/06
                                                 Required conditions.
NAC 445B.33656................................  Operating permit to construct for          09/06/06     12/08/06
                                                 approval of plantwide applicability
                                                 limitation: Required conditions and
                                                 information.
NAC 445B.3366.................................  Operating permit to construct:             09/06/06     12/08/06
                                                 Expiration; extension.
NAC 445B.3368.................................  Application: Additional requirements;      08/19/04     01/12/06
                                                 exception.
NAC 445B.3375.................................  Class I-B application: Filing              09/06/06     12/08/06
                                                 requirement.
NAC 445B.3395.................................  Review of application and                  09/06/06     12/08/06
                                                 determination of completeness by
                                                 director; notice; expiration of
                                                 permit.
NAC 445B.340..................................  Prerequisites to issuance, revision or     01/22/98     01/12/06
                                                 renewal of permit.
NAC 445B.342..................................  Revision of permit: Exception when         09/06/06     12/08/06
                                                 making certain changes; notification
                                                 of changes.
NAC 445B.3425.................................  Minor revision of permit..............     08/19/04     01/12/06
NAC 445B.344..................................  Significant revision of permit........     11/19/02     01/12/06
NAC 445B.3441.................................  Administrative revision of permit to       09/06/06     12/08/06
                                                 incorporate conditions of certain
                                                 permits to construct.
NAC 445B.3443.................................  Renewal of permit.....................     02/26/04     01/12/06
NAC 445B.3453.................................  Application: General requirements.....     11/19/02     01/12/06
NAC 445B.3457.................................  Application: Determination of              09/06/06     12/08/06
                                                 completeness by director.
NAC 445B.346..................................  Required contents of permit...........     10/03/95     01/12/06
NAC 445B.3465.................................  Application for revision..............     10/04/05     01/12/06
NAC 445B.3473.................................  Renewal of permit.....................     02/26/04     01/12/06
NAC 445B.3477.................................  Class II general permit...............     11/19/02     01/12/06
NAC 445B.3485.................................  Application: General requirements.....     09/06/06     12/08/06
NAC 445B.3487.................................  Application: Determination of              09/06/06     12/08/06
                                                 completeness by director.
NAC 445B.3489.................................  Required content of permits...........     09/06/06     12/08/06
NAC 445B.3493.................................  Application for revision..............     09/18/01     01/12/06
NAC 445B.3497.................................  Renewal of permits....................     02/26/04     01/12/06
----------------------------------------------------------------------------------------------------------------

    In our April 17, 2007 proposed action, we noted 10 specific 
deficiencies. First, we found that certain submitted rules use 
undefined terms, contain incorrect citations, rely on rules or 
statutory provisions that have not been submitted for approval as part 
of the SIP, or multiple versions of the same rule were included in the 
same submittal, and thus are ambiguous.
    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.
    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.''
    Fourth, we found that the method for determining heat input for 
class I sources in submitted rule NAC 445B.313 must be amended to 
require that combustion sources make applicability determinations based 
on the maximum heat input.
    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.
    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.
    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 a 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).
    Eighth, to comply with 40 CFR 51.161 (``Public availability of 
information''), we concluded that the relevant submitted rules must be 
amended to provide for adequate public review of new or modified class 
II sources. Under submitted rule NAC 445B.3457 (``Application: 
Determination of completeness by Director''), we noted that NDEP may 
initiate public notice and comment if, after review of an application 
for a class II permit, NDEP determines that the change to the 
stationary source results in a significant change in air quality at any 
location where the public is present on a regular basis. We found that 
such a provision does not provide well-defined objective criteria for 
determining when public notice is required to meet the requirements of 
40 CFR 51.161.
    With respect to the issue of public review of proposed permits, we 
found that the submitted provisions for class I sources are generally 
acceptable with the exception of submitted rule NAC 445B.3364 
(``Operating permit to construct: Review of application and 
determination of completeness by director; notice''). Submitted rule 
NAC 445.3364 must be amended to specifically require that copies of 
NDEP's review and preliminary intent to issue or deny a class I 
operating permit be sent to the Washoe County Health District or the 
Clark County Department of Air Quality and

[[Page 20540]]

Environmental Management for those sources proposed to be constructed 
or modified in Washoe County or Clark County, respectively. Also, we 
found that the rules must be amended to provide for public 
participation for new or modified sources of lead with potential to 
emit greater than 5 tons per year. See 40 CFR 51.100(k)(2) and 40 CFR 
51.161(d).
    Ninth, we found that the affirmative defense provision in submitted 
rule NAC 445B.326 is not approvable under CAA section 110(a)(2) as 
written because it could be applied to technology-based emission 
limitations approved into the SIP.
    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.
    Table 3 lists the permitting-related rules in the existing SIP for 
which NDEP has requested rescission and for which we proposed action in 
our April 17, 2007 proposed rule. In our April 17, 2007 action, we 
proposed to approve rescission requests for Nevada Air Quality 
Regulations (NAQR) article 13.1.3(3) and NAC 445.706(2) and proposed to 
disapprove the rescission requests for NAQR articles 1.60 and 1.72 and 
NAC 445.715.

          Table 3.--Existing Permitting--Related SIP Rules for Which the State Has Requested Rescission
----------------------------------------------------------------------------------------------------------------
                                                        Submittal    Approval date and   April 17, 2007 proposed
        Existing SIP rule                Title             date              FR                   action
----------------------------------------------------------------------------------------------------------------
NAQR Article 1.60...............  Effective date.....     12/29/78  08/27/81 at 46 FR    Disapproval.
                                                                     43141.
NAQR Article 1.72...............  Existing facility..     12/10/76  08/21/78 at 43 FR    Disapproval.
                                                                     36932.
NAQR Article 13, subsection       [BACT requirement       03/17/80  04/14/81 at 46 FR    Approval.
 13.1.3(3).                        in atainment                      21758.
                                   areas].
NAC 445.706(2)..................  [payment of fees]..     10/26/82  03/27/84 at 49 FR    Approval.
                                                                     11626.
NAC 445.715.....................  Operation permits:      10/26/82  03/27/84 at 49 FR    Disapproval.
                                   revocation.                       11626.
----------------------------------------------------------------------------------------------------------------

    In our April 17, 2007 action, we proposed approval of the 
rescission request for NAQR article 13.1.3(3), which applies a control 
technology requirement defined by Best Available Control Technology 
(BACT) to certain new sources in attainment areas for the following 
reasons:
     Air pollution permit programs developed by States under 
section 110 of the Clean Air Act are not required to impose a BACT 
requirement on new sources in attainment areas so long as the program 
is not intended to satisfy part C of title I of the Act;
     Rescission of the SIP BACT requirement would only act 
prospectively and would not relax emission limits in any existing 
permits;
     Rescission would not eliminate the BACT requirement for 
all new sources in Nevada given that BACT continues to be a requirement 
for new major sources and major modifications in areas, which are 
designated as attainment or unclassifiable, under EPA's Prevention of 
Significant Deterioration (PSD) regulations at 40 CFR 52.21 (see 40 CFR 
52.1485); and
     We find no evidence to suggest that Nevada is relying on 
the BACT requirement in NAQR article 13.1.3(3) to maintain the National 
Ambient Air Quality Standards (NAAQS) in any area.

Thus, we concluded that rescission of the BACT requirement in NAQR 
article 13.1.3(3) from the SIP would not interfere with continued 
attainment of the NAAQS and can therefore be approved under CAA section 
110(l).\3\
---------------------------------------------------------------------------

    \3\ CAA section 110(l) 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.
---------------------------------------------------------------------------

    We also proposed approval of the rescission request for NAC 
445.706(2), which relates to permit fees, because permit fee rules are 
no longer required for the NDEP portion of the Nevada SIP under CAA 
section 110(a)(2)(L) given our approval of NDEP's title V program (and 
related fee requirements). We made our proposed approval of the 
rescission requests for NAQR article 13.1.3(3) and NAC 445.706(2) 
contingent upon receipt of documentation from NDEP of notice and public 
hearing for repeal or rescission of these provisions as required under 
CAA section 110(l) for all SIP revisions.
    In our April 17, 2007 action, we proposed disapproval of the 
rescission request for NAQR article 1.60 because it defines a term, 
``effective date,'' that is relied upon by other terms in the existing 
SIP that NDEP intends to retain, such as ``existing source'' as defined 
in NAQR article 1.73 and ``new source'' as defined in NAQR article 
1.114. We found that the rescission requests for NAQR article 1.72 and 
NAC 445.715 could otherwise be approved but for the fact that we were 
proposing disapproval of the submitted set of rules comprising NDEP's 
current stationary source permitting program (listed in table 2, 
above). NAQR article 1.72 and NAC 445.715 need to be retained in 
connection with the stationary source permitting program as approved in 
the existing SIP, and thus we proposed to disapprove their related 
rescission requests at this time.
    The Technical Support Document (TSD) (dated March 21, 2007) that we 
prepared for our April 17, 2007 proposed rule provides more details 
concerning our evaluation of each of the rules listed in tables 1, 2, 
and 3 and our evaluation of the permitting program as a whole.

II. NDEP's August 20, 2007 SIP Revision Submittal

    By letter dated August 20, 2007, NDEP submitted a supplement to the 
SIP submittal dated January 12, 2006. The August 20, 2007 supplemental 
SIP submittal includes two statutory provisions and 16 rules, as shown 
in table 4, below.
    The two statutory provisions, Nevada Revised Statutes (NRS) 485.050 
(``Motor vehicle'' defined) and NRS 482.123 (``Special mobile 
equipment'' defined), are relied upon by one of the rules submitted for 
approval and included in our April 17, 2007 proposed rule, but had not 
been submitted for approval into the SIP themselves. We identified 
their absence as a one of the deficiencies in the submitted permitting 
program. See 72 FR 19144, at 19148 (April 17, 2007).
    The rules contained in NDEP's August 20, 2007 SIP submittal include 
codifications or recodifications of previously submitted rules. Changes

[[Page 20541]]

relative to the previously submitted rules include additional 
historical notes, updated internal rule references, revised titles, and 
minor edits. We consider the rules submitted on August 20, 2007 to 
supersede the previously submitted rules, and because, in substance, 
the rules submitted on August 20, 2007 are the same as the 
corresponding rules that were evaluated in our April 17, 2007 proposed 
rule, we are taking final action on them in today's notice without 
initiating a new comment period.

                 Table 4.--Provisions Included in NDEP's August 20, 2007 SIP Revision Submittal
----------------------------------------------------------------------------------------------------------------
                                                                                                      Submittal
 Submitted statutory provision  or rule               Title                     Adoption date            date
----------------------------------------------------------------------------------------------------------------
 NRS 485.050...........................   ``Motor vehicle'' defined.....   No adoption date........     08/20/07
 NRS 482.123...........................   ``Special mobile equipment''    No adoption..............     08/20/07
                                          defined.
 NAC 445B.013..........................   ``Allowable emissions''          10/04/05................     08/20/07
                                          defined.
 NAC 445B.036..........................   ``Class I source'' defined....   08/19/04................     08/20/07
 NAC 445B.044..........................   ``Construction'' defined......   10/04/05................     08/20/07
 NAC 445B.054..........................   ``Dispersion                     10/04/05................     08/20/07
                                          technique''defined.
 NAC 445B.064..........................   ``Excessive concentration''      10/04/05................     08/20/07
                                          defined.
 NAC 445B.083..........................   ``Good engineering practice      10/04/05................     08/20/07
                                          stack height'' defined.
 NAC 445B.107..........................   ``Nearby'' defined............   10/04/05................     08/20/07
 NAC 445B.157..........................   ``Revision of an operating       08/19/04................     08/20/07
                                          permit'' defined.
 NAC 445B.22083........................   Construction, major              10/04/05................     08/20/07
                                          modification or relocation of
                                          plants to generate electricity
                                          using steam produced by
                                          burning of fossil fuels.
 NAC 445B.250..........................   Notification of Director:        10/04/05................     08/20/07
                                          Construction, reconstruction
                                          and initial start-up;
                                          demonstration of continuous
                                          monitoring system performance.
 NAC 445B.287(1), (3), and (4).........   Operating permits: General       09/06/06................     08/20/07
                                          requirements; exception;
                                          restrictions on transfers.
 NAC 445B.297(1).......................   Application: Submission;         09/06/06................     08/20/07
                                          certification; additional
                                          information.
 NAC 445B.315..........................  Contents of operating permits:    03/08/06................     08/20/07
                                          Exception for operating
                                          permits to construct; required
                                          conditions.
 NAC 445B.3368.........................   Additional requirements for      08/19/04................     08/20/07
                                          application; exception.
 NAC 445B.342..........................   Certain changes authorized       10/04/05................     08/20/07
                                          without revision of permit;
                                          notification of authorized
                                          changes.
 NAC 445B.3465.........................   Application for revision......   10/04/05................     08/20/07
----------------------------------------------------------------------------------------------------------------

III. Public Comments and EPA Responses

    EPA's proposed action provided a 60-day public comment period. See 
72 FR 19144 (April 17, 2007). At NDEP's request, we extended the 
comment period by another 60 days. See 72 FR 31781 (June 8, 2007). 
During the comment period, we received comments from Michael Elges, 
Chief, NDEP Bureau of Air Pollution Control, by letter dated August 17, 
2007. In addition to the comments themselves, NDEP's August 17, 2007 
letter includes four attachments: Attachment A (Draft Proposed 
Regulation of the State Environmental Commission), attachment B (``ASIP 
Submittal August 17, 2007''), attachment C (``Clean Copy of the 
December 8, 2006 ASIP Submittal''), and attachment D (``Commitment to 
Comply with 40 CFR 51.161(f)'').
    In the following paragraphs, we summarize the comments and provide 
our responses thereto. Unless otherwise noted, references in the 
comments and responses listed below to a TSD relate to the TSD (dated 
March 21, 2007) that we prepared for our April 17, 2007 proposed rule.

A. Submitted Rules or Rescissions for Which EPA Has Yet To Propose 
Action

    Comment 1: NDEP recounts various SIP revisions submitted as part of 
the State's efforts in recent years to update a significant portion of 
the Nevada SIP, including SIP revisions submitted on February 16, 2005, 
January 6, 2006, and December 8, 2006, and notes that, as of the April 
17, 2007 proposed action, the EPA had acted, or proposed action, on 
every submitted provision and request for rescission with the following 
exceptions: NAC 445B.200 and 445B.227, which have not been acted on; 
and the request to rescind existing SIP provision NAC 445.694.
    Response 1: We agree with this comment, and discuss our plans for 
the two submitted rules and one rescission request cited in the comment 
in the following paragraphs.
    Submitted rule NAC 445B.200 (``Violation'' defined) would update 
existing SIP rule NAC 445.649 (``Violation'' defined), which we 
approved on March 27, 1984 at 49 FR 11626, and is used in connection 
with the permitting program. NAC 445B.200 is acceptable but is not 
separable from the rest of the permitting program. Thus, it should have 
been included in the set of rules comprising the permitting program for 
which we proposed disapproval in our April 17, 2007 action. We 
anticipate that we will propose approval of this definition at such 
time as we propose to approve an amended, and re-submitted, permitting 
program.
    Submitted rule NAC 445B.227 (``Prohibited conduct: Operation of 
source without required equipment; removal or modification of required 
equipment: modification of required procedure'') would update existing 
SIP rule NAC 445.664 (``Pollution control equipment: Operation; 
modification; removal''), which we approved on March 27, 1984 at 49 FR 
11626. NAC 445B.227 is acceptable and, while it is related to the 
permit program, it is separable from it. Thus, it should have been 
proposed for approval along with the other separable rules that were 
proposed for approval on April 17, 2007. We do not expect to take 
action on NAC 445B.227 as part of our rulemakings on the permitting 
program but will take action on it in a separate rulemaking.
    Existing SIP rule NAC 445.694 (``Emission discharge information'') 
was included in the list of SIP definitions and rules for which NDEP 
requested rescission in NDEP's January 12, 2006

[[Page 20542]]

SIP revision submittal. On August 28, 2006 (71 FR 50875), we proposed 
action on the vast majority of requested rescissions. In the TSD (dated 
August 16, 2006) that we prepared for that proposal, we concluded that 
NAC 445.694 relates to a specific SIP requirement but deferred any 
action on the rescission of NAC 445.694 to allow NDEP the opportunity 
to explain how other SIP rules meet the same SIP purposes as NAC 
445.694 thereby making the latter rule unnecessary for retention in the 
SIP. To date, no explanation has been forthcoming. Because NAC 445.694 
is not related to the permitting program, we do not expect to propose 
action on NAC 445.694 as part of our rulemakings on the permitting 
program but will take action in a separate rulemaking.

B. Submitted Rules Found to be Separable From Rest of Permitting 
Program

    Comment 2: NDEP agrees with the proposed actions on the seven rules 
found to be separable from the set of rules comprising the permitting 
program.
    Response 2: We are finalizing in today's action our disapproval of 
four submitted definitions: NAC 445B.021 (``Area source'' defined), NAC 
445B.028 (``Best available control technology'' defined), NAC 445B.178 
(``Source reduction'' defined), and NAC 445B.196 (``Toxic regulated air 
pollutant'' defined) because these definitions are not used in the 
submitted SIP nor in the existing SIP.
    We are also finalizing our approval of three rules submitted by 
NDEP: NAC 445B.22083 (``Construction, major modification or relocation 
of plants to generate electricity using steam produced by burning of 
fossil fuels'') and NAC 445B.250 (``Notification of Director: 
Construction, reconstruction and initial start-up; demonstration of 
continuous monitoring system performance''), and NAC 445B.252 
(``Testing and sampling'') because they update and strengthen the SIP. 
With respect to NAC 445B.22083 and 445B.250, NDEP submitted the most 
current versions in a SIP revision submittal dated August 20, 2007. The 
versions of NAC 445B.22083 and 445B.250 submitted on August 20, 2007 
represent recodifications of the versions submitted on January 12, 2006 
and proposed for approval on April 17, 2007 and thus differ only in 
minor respects (e.g., titles, updated internal rule references, and 
historical notes). In this final action, we are approving the August 
20, 2007 submitted versions of NAC 445B.22083 and 445B.250.
    Our approval of these rules has the effect of replacing the 
following rules in the applicable SIP: NAC 445B.22083, as submitted on 
November 30, 2003 and approved on September 7, 2004 (69 FR 54006), NAQR 
article 2.16.1, as submitted on December 10, 1976 and approved on 
August 21, 1978 (43 FR 36932), and NAC 445.682, as submitted on October 
26, 1982 and approved on March 27, 1984 (49 FR 11626).

C. Rules Comprising the Submitted Permit Program

1. Definitions
    Comment 3: With respect to EPA's evaluation of NAC 445B.036 
(``Class I source'' defined), NDEP disagrees with EPA's conclusion that 
the definition should be clarified.
    Response 3: We continue to maintain that clarification of the 
definition would be helpful for the reasons set forth in the TSD on 
pages 13-14, but we do not view the marginal potential for confusion 
inherent in the rule's current form to be an approvability issue.
    Comment 4: In response to EPA's evaluation of NAC 445B.038 (``Class 
III source'' defined), NDEP agrees to propose a change in the 
definition to deny Class III status to sources that are subject to 40 
CFR part 63.
    Response 4: A change in the definition in NAC 445B.038 consistent 
with the draft revision shown in attachment A to NDEP's comment letter 
would fully respond to EPA's findings related to this definition.
    Comment 5: In response to EPA's evaluation of NAC 445B.069 
(``Federally enforceable'' defined), NDEP agrees to propose a change in 
the definition to more closely mirror the Federal definition.
    Response 5: A change in the definition in NAC 445B.069 consistent 
with the draft revision shown in attachment A to NDEP's comment letter 
would partially respond to EPA's findings related to this definition. 
However, to avoid unnecessary ambiguity, we continue to believe NAC 
445B.069 must more closely match EPA's definition of ``federally 
enforceable.'' For instance, the draft revised version of NAC 445B.069 
provided in attachment A to NDEP's comment letter, while improved from 
the existing version, does not include ``requirements within any 
applicable State implementation plan,'' a source of enforcement 
authority that should be cited in the definition of this term.
    Comment 6: In response to EPA's evaluation of ``Section 4 of 
Regulation R096-05'' (``Good engineering practice stack height'' 
defined), NDEP intends to propose the adoption of the definition of 
``commence'' as found in 40 CFR 51.166(b)(9).
    Response 6: Adoption of a definition for the term, ``commence,'' as 
shown in attachment A of NDEP's comment letter, would fully respond to 
EPA's findings with respect to ``Section 4 of Regulation R096-05.''
    Comment 7: In response to EPA's evaluation of NAC 445B.104 (``Motor 
vehicle'' defined), NDEP intends to submit the statutory provision (NRS 
485.050) upon which NAC 445B.104 relies.
    Response 8: Submittal of NRS 485.050 (``Motor vehicle'' defined) as 
shown in attachment B of NDEP's comment letter would fully respond to 
EPA's findings with respect to NAC 445B.104.
    Comment 9: With respect to EPA's evaluation of NAC 445B.138 
(``Potential to emit'' defined), NDEP disagrees with our conclusion 
that the definition must be amended and believes that when the 
definition of ``potential to emit'' (PTE) in NAC 445B.138 is considered 
with the definition of ``enforceable'' in NAC 445B.060, NDEP's ability 
to determine PTE is clear and practicably enforceable and does not 
hinder Federal enforcement under the SIP.
    Response 9: We disagree that the definition of ``enforceable'' in 
NAC 445B.060, which states `` `Enforceable' means enforceable under 
federal, state or local law,'' addresses the deficiency identified by 
EPA in the definition of PTE in NAC 445B.138 in the proposed rule and 
described in more detail on pages 19-20 of the TSD. In the proposed 
rule, 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 other words, PTE limits must be legally and 
practicably enforceable, and the current definition of PTE in NAC 
445B.138 satisfies the former (i.e., legal authority to enforce) but 
not the latter (i.e., practicable to enforce). By including criteria 
under which a limit is determined by NDEP to be effective as a 
practical matter (examples of such criteria are included in the TSD), 
NDEP can address the issue of practicable enforcement.
    Whereas the proposed rule calls for the definition in NAC 445B.138 
to be amended, we now believe that NDEP has several options for fixing 
the deficiency discussed above. A rule change is one option, but other 
options, such as the development of policy documents to be relied upon 
by NDEP permitting staff to establish permit limits that are 
practicably enforceable,

[[Page 20543]]

or some combination of rule change and policy guidance, could also 
accomplish the same overall objective. The objective is to ensure that 
any physical or operational limitations on the capacity of stationary 
source to emit a regulated air pollutant that is treated as part of the 
source's design for the purposes of determining PTE is both legally and 
practicably enforceable.
    Comment 10: In response to EPA's evaluation of NAC 445B.179 
(``Special mobile equipment'' defined), NDEP intends to submit the 
statutory provision (NRS 482.123) upon which NAC 445B.179 relies.
    Response 10: Submittal of NRS 482.123 (``Special mobile equipment'' 
defined) as shown in attachment B of NDEP's comment letter would fully 
respond to EPA's findings with respect to NAC 445B.179.
    Comment 11: With respect to EPA's evaluation of NAC 445B.187 
(``Stationary source'' defined), NDEP plans no changes to this 
definition. NDEP indicates that the State's definition of ``special 
mobile equipment'' is more expansive than the Federal definition of 
``nonroad engine'' in 40 CFR 89.2 and is therefore being retained. NDEP 
believes that it is clear that ``special mobile equipment,'' as defined 
by the State, does not include engines that are used in stationary 
applications.
    Response 11: On pages 21-22 of our TSD, we explain that the 
definition of ``stationary source'' in NAC 445B.187 is acceptable if 
NDEP can explain how the submitted definition complies with CAA section 
302(z) notwithstanding the exclusion of internal combustion engines 
that do not fall within the nonroad engine or nonroad vehicle 
categories. NDEP's statement that the NAC definition of ``special 
mobile equipment'' is more expansive than the definition of ``nonroad 
engine'' in 40 CFR 89.2 simply adds weight to EPA's concerns over the 
exclusion of ``special mobile equipment'' from the meaning of 
``stationary source.'' To the extent that the definition of 
``stationary source'' in NAC 445B.187, by exempting ``special mobile 
equipment,'' excludes internal combustion engines other than nonroad 
engines and those used for transportation purposes, the definition is 
unacceptable. See CAA section 302(z).
    For instance, the term ``nonroad engine'' includes an internal 
combustion engine that, by itself or in or on a piece of equipment, is 
portable or transportable, except where such an engine remains or will 
remain at a location for more than 12 consecutive months or a shorter 
period of time for an engine located at a seasonal source. See 40 CFR 
89.2. Where such an engine remains or will remain at a location for 
more than 12 consecutive months (or a shorter period of time for an 
engine located at a seasonal source), the engine should be included in 
the definition of ``stationary source'' under NAC 445B.187, but may be 
excluded in the current version of the definition by virtue of the 
exclusion for ``special mobile equipment.'' For a detailed discussion 
of the applicability of new source review to internal combustion 
engines, see 61 FR 38250, at 38306-38307 (July 23, 1996).
2. General Provisions
    Comment 12: In response to EPA's evaluation of NAC 445B.252 
(``Testing and sampling''), NDEP agrees to propose a change in the rule 
to replace the term ``method of reference'' with ``reference method.''
    Response 12: The proposed change in NAC 445B.252 (as shown in 
attachment A to NDEP's comment letter) would fix the minor deficiency 
in this rule identified by EPA on page 23 of the TSD.
3. Operating Permits Generally
    Comment 13: In response to EPA's evaluation of NAC 445B.287 
(``Operating permits: General requirements; exception; restriction on 
transfer''), NDEP agrees to submit a subsection cited, but not 
included, in the submitted version of the rule, but requests 
clarification from EPA as to why a title V provision, such as the cited 
subsection, should be in the applicable SIP.
    Response 13: We did not recognize the missing subsection (i.e., 
subsection 2), which provides for an exemption from permit revision 
requirements for certain Class I sources, as a title V only provision, 
but believe that it needs to be submitted to allow for proper 
interpretation and application of the rule.
    Comment 14: With respect to EPA's evaluation of NAC 445B.288 
(``Operating permits: Exemptions from requirements; insignificant 
activities''), NDEP disagrees that the rule should be amended to 
exclude from exemption agricultural equipment which is subject to any 
standard set forth in 40 CFR part 63. With respect to emergency 
generator provisions, NDEP intends to propose amendments to the rule to 
extend the limitation on emergency generators that qualify as an 
``insignificant activity'' from class II sources to all stationary 
sources.
    Response 14: We view the absence of a limitation on the application 
of the exemption for agricultural equipment subject to any standard set 
forth in 40 CFR part 63 as a minor deficiency but continue to encourage 
NDEP to make the suggested change. With respect to emergency 
generators, we find that adoption of the amendment to NAC 445B.288, as 
shown in attachment A to NDEP's comment letter, would fully respond to 
EPA's findings with respect to that issue.
    Comment 15: With respect to EPA's evaluation of NAC 445B.308 
(``Prerequisites and conditions for issuance of operating permits: 
Environmental evaluation; compliance with control strategy; exemption 
from environmental evaluation''), NDEP indicates that the issue of 
multiple rule submittals has been resolved by supplemental material, 
entitled ``Clean Copy of the December 8, 2006 ASIP Submittal,'' 
submitted on February 13, 2007 and re-submitted as a courtesy as 
attachment C to NDEP's comment letter. Second, NDEP asserts that the 
issue of director's discretion in subsection (3) of NAC 445B.308 is 
adequately addressed by the limits and criteria established in a 
separate rule, specifically NAC 445B.311(3), and intends to propose 
amendments to NAC 445B.308(3) to refer to the criteria in NAC 
445B.311(3).
    Response 15: We agree that NDEP resolved the potential for 
confusion arising from multiple rule submittals through submittal of 
the supplemental material on February 13, 2007. We also find that the 
draft amendment to NAC 445B.308, as shown in attachment A to NDEP's 
comment letter, would resolve the director's discretion issue.
    Comment 16: With respect to EPA's evaluation of NAC 445B.311 
(``Environmental evaluation: Required information''), NDEP notes that 
NAC 445B.083, which is cited in NAC 445B.311, is being submitted to EPA 
for action as a SIP revision. Second, NDEP attaches a commitment to 
obtain EPA's approval before authorizing the modification of a model in 
40 CFR part 51, appendix W.
    Response 16: We find that NDEP's submittal of NAC 445B.083, as 
shown in attachment B to NDEP's comment letter, resolves the issue of a 
hanging reference in NAC 445B.311. With respect to approval of modified 
or substitute models, we find that the submittal of a commitment by 
NDEP to obtain EPA's written approval (included as attachment D to 
NDEP's comment letter) fails to adequately resolve this deficiency. Any 
such commitment such as the one submitted by NDEP must be incorporated 
into the SIP, and as such, must be submitted to EPA as a SIP revision 
following the usual SIP

[[Page 20544]]

revision procedures, including notice and opportunity for public 
comment. More importantly, a separate commitment by NDEP does not 
ensure notice to permit applicants of this requirement and therefore 
may lead to disputes over source impacts and related control technology 
that could be avoided if the requirement were written into the rule. 
Therefore, we encourage NDEP to propose an amendment to NAC 445B.311 to 
require EPA written approval for use of a modified or substitute model 
and to re-submit the rule, as amended, to EPA for approval as part of 
the SIP.
    Comment 17: With respect to EPA's evaluation of NAC 445B.313 
(``Method for determining heat input: Class I sources''), NDEP intends 
to propose amendments to the rule to require the maximum heat input to 
be determined by combining the maximum fuel input rate and the total 
calorific value of the fuel or fuel(s) combusted. NDEP also intends to 
propose amendments to the rule to clarify that appropriate ASTM methods 
must be used for determining heat input.
    Response 17: NDEP's amendments to NAC 445B.313, as shown in 
attachment A to NDEP's comment letter, would not resolve the deficiency 
identified by EPA. NDEP's amendments add the word ``maximum'' prior to 
``heat input'' and then delete the references to 40 CFR parts 51, 52, 
60, and 61. However, the amended rule still does not specify the 
appropriate method for determining heat input. As described on page 29 
of our TSD, the appropriate method is as follows: the maximum heat 
input is determined by combining the maximum fuel rate, determined by 
the manufacturer, with the total calorific value of the fuel. ASTM 
methods are used to determine the calorific values of fuels.
    Comment 18: With respect to EPA's evaluation of NAC 445B.326 
(``Operating permits: Assertion of emergency as affirmative defense to 
action for noncompliance''), NDEP states that it seems obtuse that an 
emission limitation, established in an integrated construction/
operating permit or an operating permit to construct, would be allowed 
to have an affirmative defense for an emergency under a title V 
operating permit but would not be allowed to have that same defense in 
a SIP-based permit that established the technology-based limitation to 
begin with.
    Therefore, NDEP maintains that NAC 445B.326 is fully approvable as 
submitted.
    Response 18: Normally, an air pollution control agency issues a 
preconstruction permit to a new source or modification, and the 
preconstruction permit will contain all of the technology-based 
emission limitations necessary for the source or modification to comply 
with the SIP. For certain sources, these SIP-based emission limitations 
are then included in title V operating permits. Noncompliance with such 
limitations can trigger either enforcement of the SIP requirements or 
the conditions of the title V permit.
    NDEP's program, in contrast, is an integrated program combining 
both preconstruction and title V operating permit requirements. As 
noted on pages 31-32 of our TSD, submitted rule NAC 445B.326 is 
acceptable with respect to enforcement actions brought for 
noncompliance with title V operating permit conditions. If EPA were to 
approve it into the SIP, the affirmative defense as set forth in NAC 
445B.326 would also apply to the underlying SIP requirements. However, 
in its current form, NAC 445B.326 does not provide the requisite 
protection for the NAAQS and PSD increments as called for under CAA 
section 110(a)(2).
    For example, the affirmative defense in NAC 445B.326 does not 
distinguish between penalties and injunctive relief, and if adequately 
supported by a source, applies to both types of claims. EPA recognizes 
that, while imposition of penalties under certain circumstances may not 
be appropriate, SIPs must provide for attainment and maintenance of the 
NAAQS and protection of PSD increments, and thus, EPA cannot approve 
into the SIP a provision that would undermine that fundamental SIP 
purpose. Thus, for SIP approval, an acceptable affirmative defense 
provision can apply only to penalties, and not to injunctive relief. 
This restriction ensures that both state and federal authorities remain 
able to protect the NAAQS and PSD increments.
    We have published guidance to advise States on the types of 
considerations that should be taken into account in developing a SIP 
rule providing an affirmative defense to excess emissions caused by 
malfunction. See EPA memorandum, ``State Implementation Plans: Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown,'' from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance, et al, dated September 20, 1999.
    Comment 19: With respect to EPA's evaluation of NAC 445B.331 
(``Request for change of location of emission unit''), NDEP indicates 
that the provision applies to changes of location of an emission unit 
both within the confines of a stationary source and outside the 
confines of a stationary source. NDEP explains 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 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 is performed 
to ensure compliance with the NAAQS. NDEP further explains 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. Thus, NDEP believes that no changes in this provision 
are warranted.
    Response 19: On page 32 of our TSD, we concluded that NAC 445B.331 
must be amended to clarify that it only provides for changes in 
locations of emission units within the confines of existing sources at 
which the units are located. With NDEP's explanation summarized above, 
however, we now believe that NAC 445B.331 need not be so limited and 
that NDEP's approach to temporary sources is reasonable. Nonetheless, 
we conclude that amendments in NAC 445B.331 are still necessary to 
carry out the approach that NDEP describes in its comment letter 
because the rule, in its current form, does not cross-reference either 
the normal operating permit provisions or the general permit 
provisions. The purpose of such amendments would be to clarify that one 
or the other type of permit is required notwithstanding the ten-day 
advance notice provision in the rule.
4. Class I Operating Permits
    Comment 20: With respect to EPA's evaluation of NAC 445B.3363 
(``Operating permit to construct: Application''), NDEP indicates that 
the issue of multiple rule submittals has been resolved by supplemental 
material, entitled ``Clean Copy of the December 8, 2006 ASIP 
Submittal,'' submitted on February 13, 2007 and re-submitted as a 
courtesy as attachment C to NDEP's comment letter.
    Response 20: We agree that NDEP resolved the potential for 
confusion arising from multiple rule submittals through submittal of 
the supplemental material on February 13, 2007.

[[Page 20545]]

    Comment 21: With respect to EPA's evaluation of NAC 445B.33637 
(``Operating permit to construct for approval of plantwide 
applicability limitation: Application''), NDEP disagrees with EPA's 
observation that NAC 445B.33637(1)(e) is missing text between the words 
``limitation'' and ``based.''
    Response 21: NDEP's explanation is satisfactory, and we no longer 
believe that any text is missing in NAC 445B.33637(1)(e).
    Comment 22: With respect to EPA's evaluation of NAC 445B.3364 
(``Operating permit to construct: Review of application and 
determination of completeness by director; notice''), NDEP indicates 
that the issue of multiple rule submittals has been resolved by 
supplemental material, entitled ``Clean Copy of the December 8, 2006 
ASIP Submittal,'' submitted on February 13, 2007 and re-submitted as a 
courtesy as attachment C to NDEP's comment letter. Second, NDEP intends 
to amend NAC 445B.3364, as well as NAC 445B.3395, to provide notice 
specifically to Clark and Washoe Counties for construction or 
modification of sources affecting those counties. Third, NDEP requests 
clarification with respect to federal requirements for public notice 
regarding lead.
    Response 22: First, we agree that NDEP resolved the potential for 
confusion arising from multiple rule submittals through submittal of 
the supplemental material on February 13, 2007.
    Second, we find that the amendments in NAC 445B.3364 and NAC 
445B.3395 shown in attachment A to NDEP's comment letter address the 
issue of providing notice to county APCDs but, for the purpose of 
clarity, we recommend that the word ``any'' be substituted for the word 
``each'' in the draft amendment to NAC 445B.3364(6)(e) and that the 
word ``affected'' be added immediately before the term ``local air 
pollution control agency'' in the draft amendment to NAC 
445B.3395(7)(b)(2).
    Third, with respect to lead (``Pb''), the federal requirements for 
public notice regarding lead in 40 CFR 51.161(d) can be explained by 
examining EPA rulemaking actions that culminated in the language now 
found in 40 CFR 51.161(d). These actions include EPA's proposed 
restructuring of the requirements for SIPs in 40 CFR part 51 at 48 FR 
46152 (October 11, 1983) and corresponding final rule at 51 FR 40656 
(November 7, 1986). As described in our 1983 proposal, one of the goals 
for restructuring was to reduce reporting requirements. To further this 
goal, we proposed to limit the requirement on States to notify EPA of 
all air permitting actions to cover only major sources in nonattainment 
areas and, with respect to pollutants for which no area designations 
are established (such as Pb at the time), all point sources.\4\ 
Ultimately, EPA decided not to limit the reporting requirement but to 
retain the pre-existing requirement on States to notify EPA of all 
permitting actions, except for Pb. See 51 FR 40656, at 40658 (November 
7, 1986). For new or modified sources of Pb, EPA finalized the proposed 
``point source'' threshold for notification to EPA of proposed permits.
---------------------------------------------------------------------------

    \4\ The 1983 proposal incorrectly used the term ``major source'' 
in connection with the notice requirement for new or modified 
sources of pollutants for which no designations are established. As 
explained in our 1986 final rule, EPA intended the term ``point 
source.'' See at 51 FR 40656, at 40659 (November 7, 1986).
---------------------------------------------------------------------------

    Thus, since the point source threshold for Pb is 5 tons per year in 
40 CFR 51.100(k)(2), the reporting requirement in 40 CFR 51.161(d), as 
it relates to Pb emissions, attaches to new sources of Pb with 
potential to emit 5 tons per year or more and to any modifications of 
such sources that increase Pb emissions. The use of the term ``actual 
emissions'' in the definition of ``point source'' in 40 CFR 
51.100(k)(2) is not inconsistent with our interpretation above because, 
in the NSR context, for a source not yet constructed, ``actual 
emissions'' equal the PTE. See 40 CFR 51.166(b)(21)(iv).
    Comment 23: With respect to EPA's evaluation of NAC 445B.3366 
(``Operating permit to construct: Expiration; extension''), NDEP agrees 
that a definition of ``commence'' and related definitions should be 
added to its rulebook.
    Response 23: We have reviewed the definitions of ``commence,'' 
``necessary preconstruction approvals or permits,'' and ``begin actual 
construction'' as shown in attachment A to NDEP's comment letter. We 
find the definitions of ``commence'' and ``begin actual construction'' 
to be essentially the same as the corresponding definitions in 40 CFR 
51.166(b) and to be acceptable. NDEP's draft definition of ``necessary 
preconstruction approvals or permits'' substitutes ``pursuant to NAC 
445B.001 to 445B.3689, inclusive,'' for ``under Federal air quality 
control laws and regulations'' as set forth in 40 CFR 51.166(b)(10). We 
will not approve a deviation from the Federal definition of the same 
NSR term unless the State specifically demonstrates that the submitted 
definition is more stringent, or at least as stringent, in all respects 
as the corresponding Federal definition. See 40 CFR 51.166(b).
5. Class II Operating Permits
    Comment 24: With respect to EPA's evaluation of NAC 445B.3457 
(``Application: Determination of completeness by director''), NDEP 
asserts that EPA was incorrect in concluding that the same prescriptive 
requirements in 40 CFR 51.160(e) also exist in 40 CFR 51.161(a) and 
disagrees that ``well-defined objective criteria'' are required to meet 
the State's obligations for public notice under 40 CFR 51.161. NDEP 
asserts that implementation of a one-size-fits-all de minimis emissions 
approach would be more susceptible to an assertion of being arbitrary 
and capricious, would unduly limit the NDEP's ability to notify the 
public in a manner that is best suited for Nevada, would be 
inconsistent with the State/EPA partnership Congress intended under the 
CAA, and would prohibit public notice for sources with emissions less 
than de minimis levels.
    Also, NDEP asserts that EPA has made conflicting statements with 
respect to acceptable public notice requirements. On one hand, EPA 
indicates, without proper support, that the submitted rules would 
weaken the existing SIP with respect to permitting of all sources 
except class I sources. On the other hand, EPA goes on to say that 
States may exempt from review changes that are not environmentally 
significant implying that the SIP can be weakened in this respect.
    Lastly, NDEP points the EPA to Congress' intent in CAA section 
101(a)(3) that States are obligated and responsible for the creation 
and implementation of air pollution prevention and control at sources. 
The EPA is required to provide technical and financial assistance to 
States in connection with the development and execution of their air 
pollution prevention and control programs.
    Response 24: First, we do not interpret our regulations so as to 
apply the same prescriptive requirements found in 40 CFR 51.160(e) to 
40 CFR 51.161(a). The former requires States or local agencies to 
identify types and sizes of facilities, buildings, structures, or 
installations which will be required to apply for a permit for a new 
source or modification and discuss the basis for determining which 
facilities will be subject to review. The latter requires the State or 
local agency to provide the opportunity for public comment on 
information provided by permit applicants and on the agency's related 
analysis and proposed action on the permit application.

[[Page 20546]]

    Under 40 CFR 51.161(a), and unlike 40 CFR 51.160(e), the State or 
local agency is not required to identify types of permit applications 
that will be subject to review nor discuss the basis for that decision. 
Rather, the public review requirements apply to each and every permit 
action proposed by the State or local agency. However, if the State or 
local agency chooses to exempt some new sources or modifications 
subject to permitting from public participation requirements, it must 
do so consistent with the de minimis principle set forth in Ala. Power 
Co. v. Costle, 636 F.2d 323, at 360-361 (D.C.Cir. 1979) \5\ and by 
application of well-defined objective criteria. NDEP's current approach 
fails the de minimis principle by foregoing public notice for sources 
up to 100 tons per year and substitutes Director's discretion for well-
defined objective criteria.
---------------------------------------------------------------------------

    \5 \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).
---------------------------------------------------------------------------

    On page 49 of our TSD, we indicate that we believe that a State may 
tailor the public participation process for less environmentally 
significant sources and modifications and note that NDEP could limit 
mandatory public notice to a subset of Class II sources based on de 
minimis thresholds and allow for Director's discretion to require 
public notice below those thresholds.\6\ Our objection to NDEP's 
current approach is the use of 100 tons per year as the threshold above 
which public notice is mandatory given that NDEP has provided no 
demonstration that 100 tons per year represents an acceptable de 
minimis level below which the burden of public notice on sources yields 
a gain of trivial or no value. NDEP might consider lowering the 
mandatory public process thresholds from 100 tons per year to the 
thresholds used in connection with environmental evaluations. We 
believe that NDEP, for instance, might be able to demonstrate that the 
thresholds triggering preparation of environmental evaluations are 
appropriate thresholds for mandatory public notice consistent with the 
de minimis principle.
---------------------------------------------------------------------------

    \6\[thinsp]Thus, with respect to the circumstances described by 
NDEP involving a very small medical waste pyrolysis facility, EPA 
does not mean to imply that, by establishing de minimis thresholds 
for mandatory public notice, a State should limit its discretion to 
require public notice for sources below such thresholds. To the 
contrary, below such thresholds, we believe it to be appropriate 
that a State retain authority to require public notice in light of 
special or unusual circumstances.
---------------------------------------------------------------------------

    Second, NDEP indicates that EPA has not justified the conclusion 
that the public participation requirements for class II sources (which 
are found in NAC 445B.3457) weaken the existing SIP. The basis for our 
conclusion is a comparison of NAC 445B.3457 with the corresponding rule 
in the existing SIP. The existing SIP rule, NAC 445.707 [subsection 
(3)] is cited on page 37 of our TSD in connection with our review of 
NAC 445B.3457. NAC 445.707 [subsection (3)] requires the director to 
give preliminary notice of his intent to issue or deny a ``registration 
certificate'' for a single source within 15 days after receiving 
adequate information for reviewing the registration application. This 
obligation on the director attaches to all applications for 
``registration certificates'' (which are now referred to as permits).
    In connection with our review of NAC 445B.3457, we should also have 
cited existing SIP NAC 445.707[subsections (4) and (5)], which require 
the application, the director's review and preliminary intent to issue 
or deny a registration certificate to be made public, provides for a 
30-day comment period, and requires the director to take into account 
written public comments, among other requirements. Once again, the 
public notice and 30-day comment period requirements attach to all 
applications. Thus, the submitted approach that limits mandatory public 
notice and comment to sources greater than 100 tons per year clearly 
weakens the SIP relative to public participation for permitting of new 
sources and modifications. Our conclusion in this regard does not imply 
that no relaxation from the existing SIP can be approved. Rather, we 
indicate in our TSD that we believe that exemptions from the public 
notice and comment can be approved so long as such exemptions are 
supported under the de minimis principle discussed above.
    Lastly, with respect to the State/EPA partnership established by 
Congress through the CAA, we recognize that air pollution prevention 
and air pollution control at its source is the primary responsibility 
of States and local governments. We are also cognizant of EPA's 
responsibility under the CAA to ensure that each State adopt and submit 
a plan which provides for implementation, maintenance, and enforcement 
of the NAAQS. EPA fulfills this responsibility in part by approving or 
disapproving SIPs and SIP revisions submitted under CAA section 110 for 
compliance with the CAA and EPA's SIP rules in 40 CFR part 51. Our 
review and action on the State's submittal of its stationary source 
permitting program, including the provisions related to public notice, 
comport with our responsibilities under the CAA.
    Comment 25: With respect to EPA's evaluation of NAC 445B.3477 
(``Class II general permit''), NDEP notes 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. Second, NDEP agrees to propose amendments to NAC 445B.3477 to 
add public participation requirements.
    Response 25: On page 38 of our TSD, we indicated that NAC 445B.3477 
must 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. Based on 
NDEP's explanation, we now recognize the ``general permit'' as a type 
of operating permit (under NAC 445B.082) that, as such, is subject to 
the requirements that apply generally to Class II operating permits. We 
now also understand that NDEP performs a worst-case environmental 
evaluation to ensure that the terms and conditions of the general 
operating permit will ensure compliance with the NAAQS and are 
consistent with the Class II operating permit requirements (see page 5 
of NDEP's comment letter), has traditionally provided for public notice 
of general permits (although not required to do so by the terms of the 
rule), and has recently drafted revisions to NAC 445B.3477 to require 
such public notice in the future. We have reviewed the draft public 
notice provisions that have been added to NAC 445B.3477 (as shown in 
attachment A to NDEP's letter) and find them acceptable.
    Thus, we find that our objections to NAC 445B.3477 have been 
satisfactorily

[[Page 20547]]

resolved except for the environmental evaluation requirement, which has 
been performed in practice, but is not required by the terms of the 
rule as a prerequisite to issuing a Class II general permit. The 
environmental evaluation is the tool by which NDEP determines whether 
new or modified sources would result in a violation of the NAAQS but is 
not required for all Class II permits; thus, NAC 445B.3477 must be 
amended to clearly require environmental evaluations for all class II 
general permits. We also suggest clarifying that general permits are a 
specific type of Class II permit.
6. Other Issues
    Comment 26: With respect to EPA's suggestion to add the phrase ``as 
incorporated by reference'' to a number of rules to be consistent with 
the use of that phrase in other rules, NDEP plans to review the use of 
the phrase throughout chapter 445B of the NAC for consistency and amend 
as appropriate.
    Response 26: This is acceptable. As noted on page 53 of the TSD, we 
view this issue as one for which clarification is warranted but not as 
one that affects approvability of the submittal.

D. Rescissions of Permitting-Related Rules From Applicable SIP

    Comment 27: NDEP agrees with our proposal to disapprove certain 
rescissions, and to approve certain other rescissions, of permit-
related provisions in the existing SIP. NDEP also provides additional 
background information supporting our proposed approval of the 
rescission request for NAQR article 13.1.3(3), and identifies public 
process documentation for rescission of NAQR article 13.1.3(3) and NAC 
445.706(2) in previously-submitted materials.
    Response 27: In today's action, we are finalizing our disapproval 
of the rescissions of NAQR article 1.60 (``Effective date''), NAQR 
article 1.72 (``Existing facility''), and NAC 445.715 (``Operating 
permits: revocation'') from the applicable SIP. We are disapproving the 
rescissions of these three provisions because, as described on pages 
55-59 of the TSD, the provisions are relied upon by other rules that 
remain in the applicable SIP. NAQR article 1.72 and NAC 445.715 may be 
rescinded at such time as we act to approve the rules comprising the 
overall stationary source permitting program.
    We are also finalizing our approval of the rescissions of NAQR 
article 13.1.3(3) [Minor source BACT] and NAC 445.706(2) (``Application 
date: payment of fees'') from the applicable SIP. Our rationale for 
approving the rescission of these two provisions is provided on pages 
56-58 of the TSD. In short, we are approving the rescission of NAC 
article 13.1.3(3) because controls representing ``best available 
control technology'' (BACT) are not required for minor sources and 
minor modifications, rescission of the minor source BACT requirement 
would not have a retroactive effect, rescission would only affect a 
subset (not all) of new minor sources, and we find no evidence that 
NDEP is relying on the BACT requirement in article 13.1.3(3) to 
maintain the NAAQS in any area. We are approving the rescission of NAC 
445.706(2) because permit fee rules are no longer a SIP requirement in 
areas, such as those under NDEP jurisdiction, that have an approved 
title V program.
    We do not agree with NDEP that a review of regulatory history 
clearly shows that the State's intent in adopting the BACT requirement 
in NAQR article 13.1.3(3) was to apply BACT only to PSD major sources 
and major modifications. Our review indicates that the State intended 
to apply BACT to the same types of sources and modifications in 
attainment areas as were subject to a control technology representing 
the lowest achievable emissions rate (LAER) in nonattainment areas. 
Thus, since LAER was triggered at 100 tons per year in nonattainment 
areas (for nonattainment pollutants), the State intended that BACT be 
triggered at 100 tons per year in attainment areas, thereby extending 
the applicability of BACT beyond that required under PSD (except for 
certain source categories for which a 100 ton per year threshold 
applies under PSD). Notwithstanding our disagreement with NDEP 
regarding the State's intent in adopting the BACT requirement, we are 
finalizing the rescission of the requirement from the applicable Nevada 
SIP for the reasons set forth in our TSD and summarized above.
    In our proposed rule, we indicated that our approval of the 
rescissions of these two provisions was contingent upon receipt of 
public notice and hearing documentation from the State. See 73 FR 19144 
(April 17, 2007). In response, NDEP has identified the relevant public 
process documentation in materials previously-submitted to EPA. 
Specifically, NDEP shows that NAQR article 13.1.3(3), later re-codified 
as NAC 445.708(2)(c), was repealed by the State Environmental 
Commission (SEC) on August 29, 1990, and that NAC 445.706(2) was 
repealed by the SEC on November 3, 1993. Documentation for both 
actions, and related public process, is found in NDEP's SIP revision 
submittal dated February 16, 2005. Upon review of the public process 
documentation identified by the State, we find that the State has met 
the contingency placed by us on the proposed approval of the requested 
rescissions of these two provisions from the applicable SIP.

IV. EPA Action

    In its comment letter dated August 17, 2007, NDEP explains how it 
intends to remedy many of the deficiencies in the State's rules that 
govern application for, and issuance of, permits to stationary sources 
and that EPA identified in the April 17, 2007 proposed rule, but 
several important deficiencies, such as insufficient public notice, 
remain unresolved. Therefore, pursuant to CAA section 110(k)(3), we are 
finalizing our action as proposed on April 17, 2007 with the exception 
that, for a small subset of rules, our final action relates to amended 
rules submitted by NDEP on August 20, 2007 rather than the versions of 
the corresponding rules submitted earlier and included in our April 17, 
2007 proposal (see Table 4, above).
    Therefore, for the reasons set forth in our proposed rule and TSD, 
as clarified in the responses to comments in this document, we are 
taking final action to approve certain revisions to the Nevada SIP and 
to disapprove certain other revisions. With respect to approvals, we 
are taking final action to approve NAC 445.22083 (``Construction, major 
modification or relocation of plants to generate electricity using 
steam produced by burning of fossil fuels'') and NAC 445B.250 
(``Notification of Director: Construction, reconstruction and initial 
start-up; demonstration of continuous monitoring system performance''), 
as re-submitted on August 20, 2007, and NAC 445B.252 (``Testing and 
sampling''), as submitted on January 12, 2006.\7\ We are also approving 
the rescission from the applicable SIP of NAQR article 13, subsection 
13.1.3(3), i.e., the minor source BACT requirement, and NAC 445.706(2), 
which relates to payment of fees.
---------------------------------------------------------------------------

    \7\ Final approval of these rules supersedes the following rules 
in the applicable SIP (superseding rules shown in parentheses) upon 
the established compliance date for any new or amended requirements 
in the superseding rules: NAC 445B.22083, as submitted on November 
30, 2003 (NAC 445B.22083); NAQR article 2.16.1 (NAC 445B.250); and 
NAC 445.682 (NAC 445B.252).
---------------------------------------------------------------------------

    With respect to disapprovals, we are taking final action to 
disapprove four submitted rules evaluated separately from the bulk of 
the permitting program (see table 1, above); all of the submitted rules 
that comprise NDEP's stationary source permitting program (see tables 2 
and 4, above); the two statutory

[[Page 20548]]

provisions listed in table 4; and the rescissions of three existing SIP 
rules as listed in table 3, above. Our disapproval of these submitted 
rules, statutory provisions, and rescissions does not trigger sanctions 
under CAA section 179 and 40 CFR 52.31 because the State of Nevada has 
an approved stationary source permitting program in the applicable SIP 
and is not required under the Clean Air Act to submit its updated 
stationary source permitting program to EPA for approval.\8\
---------------------------------------------------------------------------

    \8\ In this context, we are referring to NDEP's program for 
issuing pre-construction permits for all new sources and 
modifications other than those for which part C (i.e., PSD) or part 
D (i.e., Nonattainment NSR) of title I of the CAA apply.
---------------------------------------------------------------------------

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. We have determined that 
there is such good cause for making our approval of two rules (i.e., 
NAC 445B.22083 and NAC 445B.250) and our disapproval of the other rules 
submitted by NDEP on August 20, 2007 (see table 4, above) final without 
prior proposal and opportunity for comment because the rules are in 
substance the same as those that they supersede and for which public 
notice and comment was provided in our April 17, 2007 proposed rule. 
Good cause also exists for final disapproval of the two statutory 
provisions submitted on August 20, 2007 without prior proposal and 
opportunity for comment because both were adequately described in the 
April 17, 2007 proposed rule and clearly related to the overall program 
for which we proposed disapproval and for which we are taking final 
action to disapprove in this document. Thus, notice and public 
procedure for our action on the statutory provisions and amended rules 
contained in NDEP's August 20, 2007 SIP submittal are unnecessary.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves or disapproves state law as meeting Federal 
requirements and imposes no additional requirements. Accordingly, the 
Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
approves or disapproves state law and does not impose any additional 
enforceable duty, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves or disapproves 
state law implementing a Federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it is not economically significant.
    In reviewing SIP submissions, EPA(s role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 16, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: February 20, 2008.
Wayne Nastri,
Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart DD--Nevada

0
2. Section 52.1470 is amended by adding paragraphs (c)(18)(i)(A), 
(c)(25)(vi), (c)(56)(i)(A)(9), and (c)(67) to read as follows:


 Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (18) * * *
    (i) * * *
    (A) Previously approved on April 14, 1981 in paragraph (c)(18)(i) 
of this

[[Page 20549]]

section and now deleted without replacement: Nevada Air Quality 
Regulations (NAQR) article 13.1.3(3).
* * * * *
    (25) * * *
    (vi) Previously approved on March 27, 1984, in paragraph 
(c)(25)(i)(A) of this section and now deleted without replacement: 
Nevada Administrative Code (NAC) section 445.706(2).
* * * * *
    (56) * * *
    (i) * * *
    (A) * * *
    (9) The following sections of Chapter 445B of the Nevada 
Administrative Code were adopted on the dates listed in paragraph 
(c)(56)(i)(A)(9) of this section:
    (i) September 18, 2003: 445B.252.
* * * * *
    (67) New or amended regulations were submitted on August 20, 2007 
by the Governor's designee.
    (i) Incorporation by reference.
    (A) Nevada Division of Environmental Protection.
    (1) Nevada Administrative Code (January 2007 codification by the 
Legislative Counsel Bureau) section 445B.22083, ``Construction, major 
modification or relocation of plants to generate electricity using 
steam produced by burning of fossil fuels;'' and section 445B.250, 
``Notification of Director: Construction, reconstruction and initial 
start-up; demonstration of continuous monitoring system performance;'' 
adopted by the State Environmental Commission on October 4, 2005.
* * * * *
 [FR Doc. E8-8139 Filed 4-15-08; 8:45 am]
BILLING CODE 6560-50-P