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Proposed Rule

Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Requests for Rescission

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing, under the Clean Air Act, approval of revisions to the applicable state implementation plan for the State of Nevada and disapproval of other revisions. These revisions involve certain regulations and statutes for which the State of Nevada is requesting rescission. EPA is also proposing approval of certain updated statutes submitted by the State of Nevada as replacements for outdated statutes in the applicable plan. The approval proposed herein is contingent upon receipt of certain public notice and hearing documentation from the State of Nevada. EPA is proposing this action under the Clean Air Act obligation to take action on State submittals of revisions to state implementation plans. The intended effect is to rescind unnecessary provisions from the applicable plan, retain necessary provisions, and approve replacement provisions for certain statutes for which rescissions are proposed for disapproval. EPA is taking comments on this proposal and plans to follow with a final action.

DATES:

Any comments must arrive by September 27, 2006.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2006-0590, by one of the following methods:

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

2. E-mail: steckel.andrew@epa.gov.

3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. Start Printed Page 50876

Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or e-mail. www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Julie Rose, EPA Region IX, (415) 947-4126, rose.julie@epa.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. The State's Submittal

A. Which rules and statutes did the state submit for rescission?

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

C. What is the purpose of this proposed rule?

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules and statutes requested for rescission?

B. Do the rescissions meet the evaluation criteria?

C. Public Comment and Proposed Action

III. Statutory and Executive Order Reviews

I. The State's Submittal

A. Which rules and statutes did the state submit for rescission?

The State of Nevada's Department of Conservation and Natural Resources, Division of Environmental Protection (NDEP) submitted a large revision to the applicable SIP on January 12, 2006. This 2006 SIP revision submittal supersedes the regulatory portion of the earlier SIP revision submittal dated February 16, 2005.[1] On March 26, 2006, we found that the Nevada SIP submittal dated January 12, 2006 satisfied the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

The primary purpose of this SIP revision is to clarify and harmonize the provisions approved by EPA into the applicable SIP with the current provisions adopted by the State. Because this revision incorporates so many changes from the 1970s and 1980s vintage SIP regulations, EPA has decided to review and act on the submittal in a series of separate actions. The first such action was proposed in the Federal Register on September 13, 2005 (70 FR 53975) and finalized on March 27, 2006 (71 FR 15040). The second such action was proposed in the Federal Register on June 9, 2006 (71 FR 33413).

In today's action, we are taking another step in the process of acting on the State's January 12, 2006 SIP revision submittal by proposing action on the State's request for rescission of nearly 200 rules and statutes currently approved in the applicable SIP.[2] The remaining portions of the submittal will be acted on in future Federal Register actions.

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

Pursuant to the Clean Air Amendments of 1970, the Governor of Nevada submitted the original Nevada SIP to EPA in January 1972. EPA approved certain portions of the original SIP and disapproved other portions under CAA section 110(a). See 37 FR 10842 (May 31, 1972). For some of the disapproved portions of the original SIP, EPA promulgated substitute provisions under CAA section 110(c).[3] This original SIP included various rules, codified as articles within the Nevada Air Quality Regulations (NAQR), and various statutory provisions codified in chapter 445 of the Nevada Revised Statutes (NRS). In the early 1980's, Nevada reorganized and re-codified its air quality rules into sections within chapter 445 of the Nevada Administrative Code (NAC). Today, Nevada codifies its air quality regulations in chapter 445B of the NAC and codifies air quality statutes in chapter 445B (“Air Pollution”) of title 40 (“Public Health and Safety”) of the NRS.

Nevada adopted and submitted many revisions to the original set of regulations and statutes in the SIP, some of which EPA approved on February 6, 1975 at 40 FR 5508; on March 26, 1975 at 40 FR 13306; on January 9, 1978 at 43 FR 1341; on January 24, 1978 at 43 FR 3278; on August 21, 1978 at 43 FR 36932; on July 10, 1980 at 45 FR 46384; on April 14, 1981 at 46 FR 21758; on August 27, 1981 at 46 FR 43141; on March 8, 1982 at 47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 18, 1982 at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 1984 at 49 FR 11626. Since 1984, EPA has approved very few revisions to Nevada's applicable SIP despite numerous changes that have been adopted by the State Environmental Commission. As a result, the version of the rules enforceable by NDEP is often quite different from the SIP version enforceable by EPA.

C. What is the purpose of this proposed rule?

The purpose of this proposal is to present EPA's conclusions with respect to the State's request contained in NDEP's January 12, 2006 SIP revision submittal for rescission of nearly 200 rules and statutes in the applicable SIP. We provide our reasoning in general terms below but provide a more detailed analysis for each of the relevant rules and statutes in the technical support document (TSD) that has been prepared for this proposed rulemaking. Start Printed Page 50877

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules and statutes requested for rescission?

Under CAA section 110(k)(2), EPA is obligated to take action on submittals by States of SIPs and SIP revisions. CAA section 110(k)(3) authorizes EPA to approve or disapprove, in whole or in severable part, such submittals. EPA has reviewed the regulations and statutes submitted on January 12, 2006 by NDEP for rescission for compliance with the CAA requirements for SIPs in general set forth in CAA section 110(a)(2) and 40 CFR part 51 and also for compliance with CAA requirements for SIP revisions in CAA sections 110(l) and 193.[4] We have also applied the principles set forth in a policy memorandum from Johnnie L. Pearson, Chief Regional Activities Section, U.S. EPA Office of Air Quality Planning and Standards, dated February 12, 1990, and entitled, “Review of State Regulation Recodifications.” As described below, EPA is proposing approval and disapproval of portions of the State's rescission request and approval of certain replacement provisions.

B. Do the rescissions meet the evaluation criteria?

We are proposing to approve most of the rules for which NDEP has requested rescission (see Table 1), but are proposing disapproval for rescission requests related to certain rules and statutes (see Table 2), and are proposing to approve submitted replacement provisions (see Table 3) for certain provisions for which we believe the State's rescission request should be disapproved.

Table 1 lists all of the SIP (or FIP) provisions for which the State's rescission request is proposed for approval along with the related submittal and approval dates. The vast majority of the provisions in table 1 represent defined terms that, although approved by EPA and therefore made part of the applicable SIP, are not relied upon by any rule or statute in the existing applicable SIP nor in any rule or statute in the submitted SIP revision and thus are unnecessary and appropriate for rescission. We are also proposing approval of the rescission request with respect to certain other rules and statutes (and one FIP) that we have found to be unnecessary because they are not needed generally in a SIP under CAA section 110(a)(2) or under 40 CFR part 51 or because there are other federally enforceable provisions that would provide equivalent or greater control. Neither NDEP's February 16, 2005 nor January 12, 2006 SIP submittal contained documentation of notice and public hearing for repeal or rescission of these provisions as required under CAA section 110(l) for all SIP revisions. Thus, we are making our proposed approval of these rescissions contingent upon receipt of this documentation from NDEP.

The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 1.

Table 1.—SIP Provisions for Which the State's Rescission Request Is Proposed for Approval

SIP (or FIP) provisionTitleSubmittal dateApproval date
NAC 445.440Aluminum equivalent10/26/8203/27/84
NAC 445.442Anode bake plant10/26/8203/27/84
NAC 445.443Asphalt concrete plant10/26/8203/27/84
NAC 445.446Barite dryer10/26/8203/27/84
NAC 445.451Basic oxygen process furnace10/26/8203/27/84
NAC 445.453Bituminous coal10/26/8203/27/84
NAC 445.454Blast furnace10/26/8203/27/84
NAC 445.455Blowing tap10/26/8203/27/84
NAC 445.456Brass or bronze10/26/8203/27/84
NAC 445.459Calcium carbide10/26/8203/27/84
NAC 445.460Calcium silicon10/26/8203/27/84
NAC 445.461Capture system10/26/8203/27/84
NAC 445.462Charge chrome10/26/8203/27/84
NAC 445.463Charge period10/26/8203/27/84
NAC 445.465Coal preparation plant10/26/8203/27/84
NAC 445.466Coal processing and conveying equipment10/26/8203/27/84
NAC 445.467Coal refuse10/26/8203/27/84
NAC 445.468Coal storage system10/26/8203/27/84
NAC 445.469Coke burn-off10/26/8203/27/84
NAC 445.474Commercial fuel oil10/26/8203/27/84
NAC 445.475Complex source10/26/8203/27/84
NAC 445.476Condensate10/26/8203/27/84
NAC 445.477Confidential information10/26/8203/27/84
NAC 445.481Control device10/26/8203/27/84
NAC 445.483Copper converter10/26/8203/27/84
NAC 445.484Custody transfer10/26/8203/27/84
NAC 445.485Cyclonic flow10/26/8203/27/84
NAC 445.487Diesel fuel10/26/8203/27/84
NAC 445.489Direct shell evacuation system10/26/8203/27/84
NAC 445.490Drilling and production facility10/26/8203/27/84
NAC 445.491Dross reverberatory furnace10/26/8203/27/84
NAC 445.493Dust handling equipment10/26/8203/27/84
NAC 445.494Dusts10/26/8203/27/84
NAC 445.495Electric arc furnace10/26/8203/27/84
NAC 445.496Electric furnace10/26/8203/27/84
NAC 445.497Electric smelting furnace10/26/8203/27/84
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NAC 445.498Electric submerged arc furnace10/26/8203/27/84
NAC 445.502Equivalent P2 O5 feed10/26/8203/27/84
NAC 445.503Equivalent P2 O5 stored10/26/8203/27/84
NAC 445.509Ferrochrome silicon10/26/8203/27/84
NAC 445.510Ferromanganese silicon10/26/8203/27/84
NAC 445.511Ferrosilicon10/26/8203/27/84
NAC 445.514Fossil fuel-fired steam generating unit10/26/8203/27/84
NAC 445.515Fresh granular triple superphosphate10/26/8203/27/84
NAC 445.518Fuel gas10/26/8203/27/84
NAC 445.519Fuel gas combustion device10/26/8203/27/84
NAC 445.522Furnace charge10/26/8203/27/84
NAC 445.523Furnace cycle10/26/8203/27/84
NAC 445.524Furnace power input10/26/8203/27/84
NAC 445.526Granular diammonium phosphate plant10/26/8203/27/84
NAC 445.527Granular triple super-phosphate storage facility10/26/8203/27/84
NAC 445.528Heat time10/26/8203/27/84
NAC 445.529High-carbon ferrochrome10/26/8203/27/84
NAC 445.530High level of volatile impurities10/26/8203/27/84
NAC 445.531High terrain10/26/8203/27/84
NAC 445.532Hydrocarbon10/26/8203/27/84
NAC 445.534Isokinetic sampling10/26/8203/27/84
NAC 445.539Low terrain10/26/8203/27/84
NAC 445.543Meltdown and refining10/26/8203/27/84
NAC 445.544Meltdown and refining period10/26/8203/27/84
NAC 445.546Molybdenum10/26/8203/27/84
NAC 445.547Molybdenum processing plant10/26/8203/27/84
NAC 445.551Nitric acid production unit10/26/8203/27/84
NAC 445.554Nuisance10/26/8203/27/84
NAC 445.566Petroleum liquids10/26/8203/27/84
NAC 445.567Petroleum refinery10/26/8203/27/84
NAC 445.568Pneumatic coal-cleaning equipment10/26/8203/27/84
NAC 445.572Potroom10/26/8203/27/84
NAC 445.573Potroom group10/26/8203/27/84
NAC 445.576Primary aluminum reduction plant10/26/8203/27/84
NAC 445.577Primary control system10/26/8203/27/84
NAC 445.578Primary copper smelter10/26/8203/27/84
NAC 445.579Primary lead smelter10/26/8203/27/84
NAC 445.580Primary zinc smelter10/26/8203/27/84
NAC 445.582Process gas10/26/8203/27/84
NAC 445.583Process upset gas10/26/8203/27/84
NAC 445.586Product change10/26/8203/27/84
NAC 445.587Proportional sampling10/26/8203/27/84
NAC 445.591Refinery process unit10/26/8203/27/84
NAC 445.593Reid vapor pressure10/26/8203/27/84
NAC 445.594Reverberatory furnace10/26/8203/27/84
NAC 445.595Reverberatory smelting furnace10/26/8203/27/84
NAC 445.596Ringelmann chart10/26/8203/27/84
NAC 445.598Roof monitor10/26/8203/27/84
NAC 445.600Run-of-pile triple superphosphate10/26/8203/27/84
NAC 445.602Secondary control system10/26/8203/27/84
NAC 445.603Secondary lead smelter10/26/8203/27/84
NAC 445.604Shop10/26/8203/27/84
NAC 445.605Shop opacity10/26/8203/27/84
NAC 445.608Silicomanganese10/26/8203/27/84
NAC 445.609Silicomanganese zirconium10/26/8203/27/84
NAC 445.610Silicon metal10/26/8203/27/84
NAC 445.611Silvery iron10/26/8203/27/84
NAC 445.614Sinter bed10/26/8203/27/84
NAC 445.615Sintering machine10/26/8203/27/84
NAC 445.616Sintering machine discharge end10/26/8203/27/84
NAC 445.617Six-minute period10/26/8203/27/84
NAC 445.619Smelting10/26/8203/27/84
NAC 445.620Smelting furnace10/26/8203/27/84
NAC 445.626Standard ferromanganese10/26/8203/27/84
NAC 445.629Steel production cycle10/26/8203/27/84
NAC 445.631Storage vessel10/26/8203/27/84
NAC 445.632Structure, building, facility or installation10/26/8203/27/84
NAC 445.634Sulfuric acid plant10/26/8203/27/84
NAC 445.635Sulfuric acid production unit10/26/8203/27/84
NAC 445.636Superphosphoric acid plant10/26/8203/27/84
NAC 445.637Tapping10/26/8203/27/84
NAC 445.638Tapping period10/26/8203/27/84
Start Printed Page 50879
NAC 445.639Tapping station10/26/8203/27/84
NAC 445.640Thermal dryer10/26/8203/27/84
NAC 445.641Thermit process10/26/8203/27/84
NAC 445.642Total fluorides10/26/8203/27/84
NAC 445.643Total smelter charge10/26/8203/27/84
NAC 445.644Transfer and loading system10/26/8203/27/84
NAC 445.645Triple superphosphate plant10/26/8203/27/84
NAC 445.646True vapor pressure10/26/8203/27/84
NAC 445.648Vapor recovery system10/26/8203/27/84
NAC 445.652Weak nitric acid10/26/8203/27/84
NAC 445.654Wet-process phosphoric acid plant10/26/8203/27/84
Article 2.7.4Confidential Information12/10/7608/21/78
Articles 2.10.1 and 2.10.1.1Appeal procedures01/28/7205/31/72
Articles 2.10.1.2, 2.10.2 and 2.10.3Appeal procedures10/31/7501/09/78
Article 3.3.4Stop orders01/28/7205/31/72
Article 4.3.4Emissions from any mobile equipment01/28/7205/31/72
Article 7.2.5Basic Refractory11/05/8006/18/82
Article 7.2.9Sierra Chemical Co11/05/8006/18/82
Article 8.1Primary Non-Ferrous Smelters06/14/7402/06/75
Articles 8.1.1, 8.1.2, & 8.1.4Primary Non-Ferrous Smelters10/31/7501/09/78
Article 8.3.4Basic11/05/8006/18/82
Article 16.3.1.2Regulations controlling cement (Applying to Portland cement plants)12/29/7806/18/82
Articles 16.3.2, 16.3.2.1, & 16.3.2.2Standard of particulate matter for clinker cooler (Applying to Portland cement plants)12/29/7806/18/82
Article 16.15Primary lead smelters12/29/7806/18/82
Articles 16.15.1 to 16.15.1.2Standard for Particulate Matter (Applying to primary lead smelters)12/29/7806/18/82
Articles 16.15.2 to 16.15.2.2Standard for Opacity (Applying to primary lead smelters)12/29/7806/18/82
Articles 16.15.3 to 16.15.3.2Standard for Sulfur (Applying to primary lead smelters)12/29/7806/18/82
Article 16.15.4Monitoring Operations (Applying to primary lead smelters)12/29/7806/18/82
NAC 445.662Confidential Information10/26/8203/27/84
NAC 445.695Schedules for compliance10/26/8203/27/84
NAC 445.698Appeal of director's decision: Application forms10/26/8203/27/84
NAC 445.700Violations: Manner of paying fines10/26/8203/27/84
NAC 445.723Existing copper smelters10/26/8203/27/84
NAC 445.815Molybdenum processing plants09/14/8303/27/84
NAC 445.816(2) (a), (b), (c), (e), (f), (g), (h), and (i)Processing Plants for Precious Metals09/14/8303/27/84
NAC 445.844Odors10/26/8203/27/84
NRS 445.401Declaration of public policy12/29/7807/10/80
Section 13(15) and (19) of Senate Bill No. 275[State commission of environmental protection—review recommendations of hearing board and delegation]01/28/7205/31/72
NRS 445.466Commission regulations: Notice and hearing12/29/7807/10/80
NRS 445.497Notice of regulatory action: Requirement; method; contents of notice12/29/7807/10/80
40 CFR 52.1475(c), (d), and (e)Control strategy and regulations: Sulfur oxidesN.A.02/06/75

Table 2 lists the rules and statutes for which the State's rescission request is proposed for disapproval along with the related submittal and approval dates. Generally, we believe that retention of these provisions is appropriate to satisfy certain specific requirements for SIPs under CAA section 110(a)(2) or that retention is appropriate because the State has not provided sufficient documentation to show that rescission would not interfere with continued attainment of the national ambient air quality standards (NAAQS) as required under CAA section 110(l). The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 2.

Table 2.—SIP Provisions for Which the State's Rescission Request Is Proposed for Disapproval

SIP provisionTitleSubmittal dateApproval date
NAC 445.436Air contaminant10/26/8203/27/84
NAC 445.570Portland cement plant10/26/8203/27/84
Article 1.171Single source12/10/7608/21/78
NAC 445.630Stop order10/26/8203/27/84
NAC 445.660Severability10/26/8203/27/84
NAC 445.663Concealment of emissions prohibited10/26/8203/27/84
NAC 445.665Hazardous emissions: Order for reduction or discontinuance10/26/8203/27/84
NAC 445.696Notice of violations; appearance before commission10/26/8203/27/84
NAC 445.697Stop Orders10/26/8203/27/84
NAC 445.764Reduction of employees' pay because of use of system prohibited10/26/8203/27/84
NAC 445.816(3), (4) & (5)Processing Plants for Precious Metals09/14/8303/27/84
Start Printed Page 50880
NRS 445.451*State environmental commission: Creation; composition; chairman; quorum; salary, expenses of members; disqualification of members; technical support12/29/7807/10/80
NRS 445.456*Department designated as state air pollution control agency12/29/7807/10/80
NRS 445.473*Department powers and duties12/29/7807/10/80
NRS 445.476*Power of department representatives to enter and inspect premises12/29/7807/10/80
NRS 445.498*Appeals to commission; Notice of appeal12/29/7807/10/80
NRS 445.499*Appeals to commission; Hearings12/29/7807/10/80
NRS 445.501*Appeals to commission: Appealable matters; commission action; rules for appeals12/29/7807/10/80
NRS 445.526*Violations: Notice and order by director; hearing; alternative procedures09/10/7501/24/78
NRS 445.529*Violations: Injunctive relief12/29/7807/10/80
NRS 445.576*Confidential information: Definitions; limitations on use; penalty for unlawful disclosure or use09/10/7501/24/78
NRS 445.581*Power of department officers to inspect, search premises; search warrants12/29/7807/10/80
NRS 445.596*Private rights and remedies not affected12/29/7807/10/80
NRS 445.598*Provisions for transition in administration12/29/7807/10/80
NRS 445.601*Civil penalties; fines not bar to injunctive relief, other remedies; disposition of fines12/29/7807/10/80
Note: Asterisk (*) indicates applicable SIP provisions for which replacement provisions are being proposed for approval herein (see table 3, below).

Table 3 lists the submitted provisions for which EPA is proposing approval and that, upon final approval, will supersede corresponding outdated provisions in the applicable SIP. In its January 12, 2006 SIP revision submittal, NDEP requests EPA to approve new statutory provisions to replace any outdated State statutory provisions for which EPA determines that the rescission request should not be approved. As noted above, we are proposing to disapprove requests for rescission of certain statutory provisions, and thus, consistent with the State's request, we are proposing approval of 14 specific statutory provisions, submitted by NDEP in appendix III-E of the January 12, 2006 SIP revision submittal, to replace the corresponding statutory provisions in the applicable SIP (see table 3, below). In general, we find that the current statutory provisions listed in table 3 essentially mirror the corresponding outdated provisions in the applicable SIP and thus would not relax any existing requirement.[5]

The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 3.

Table 3.—Submitted Provisions Which Are Proposed for Approval as Replacements for Outdated Provisions in the Applicable SIP

Submitted provisionsTitleSubmittal date
NRS 445B.200Creation and composition; chairman; quorum; compensation of members and employees; disqualification; technical support01/12/06
NRS 445B.205Department designated as state air pollution control agency01/12/06
NRS 445B.230Powers and duties of department01/12/06
NRS 445B.240Power of representatives of department to enter and inspect premises01/12/06
NRS 445B.340Appeals to commission: notice of appeal01/12/06
NRS 445B.350Appeals to commission: hearings01/12/06
NRS 445B.360Appeals to commission: appealable matters; action by commission; regulations01/12/06
NRS 445B.450Notice and order by director; hearing; alternative procedures01/12/06
NRS 445B.460Injunctive relief01/12/06
NRS 445B.570Confidentiality and use of information obtained by department; penalty01/12/06
NRS 445B.580Officer of department may inspect or search premises; search warrant01/12/06
NRS 445B.600Private rights and remedies not affected01/12/06
NRS 445B.610Provisions for transition in administration01/12/06
NRS 445B.640Levy and disposition of administrative fines; additional remedies available; penalty01/12/06
Start Printed Page 50881

C. Public Comment and Proposed Action

Under CAA section 110(k)(3), EPA is proposing approval of most of the State of Nevada's requests to rescind nearly 200 rules and statutes from the applicable SIP but is proposing disapproval of some of those requests. EPA is also proposing approval of certain statutory provisions submitted by the State of Nevada as replacements for outdated provisions in the applicable SIP. The approval proposed herein is contingent upon receipt of certain public notice and hearing documentation from the State of Nevada. We will accept comments from the public on this proposal for the next 30 days.

Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will rescind the rules and statutes shown in table 1, above, from the applicable SIP (contingent upon receipt of public notice and hearing documentation), retain certain rules and statutes in the applicable SIP (shown in table 2, above), and approve certain replacement provisions (shown in table 3, above).

III. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve or disapprove a State request for rescission and to approve certain replacement provisions as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve or disapprove a State request for rescission and to approve certain replacement provisions implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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List of Subjects in 40 CFR Part 52

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

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Dated: August 16, 2006.

Jane Diamond,

Acting Regional Administrator, Region IX.

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Footnotes

1.  The February 16, 2005 SIP submittal also includes documentation of public notice and hearing for new or amended rules. The January 12, 2006 SIP submittal was not a complete re-submittal of the earlier submittal in that it did not include this documentation.

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2.  Of the nearly 200 rules and statutes for which NDEP requests rescission, we are proposing action today on all but 15, including 12 that we are deferring to separate rulemakings and 3 that we plan to take no action on. The rules and statutes that we are deferring include rule 25 of general order number 3 of the Nevada Public Service Commission; article 1.60—Effective date; article 1.72—Existing facility; NAC 445.535—Kilogram-calorie; NAC 445.655 Abbreviations; article 13.1.3(3) [related to minor source BACT]; article 16.3.3.1—Opacity from kilns; NAC 445.667—Excess emissions: scheduled maintenance, testing, malfunctions; NAC 445.694—Emission discharge information; NAC 445.706(2)—Application date; payment of fees; NAC 445.715—Operation permits: revocation; and NRS 704.820 to 704.900—Construction of utility facilities: utility environmental protection act. We do not plan to take action on article 1.207—vehicle trip, article 14 (14.1 to 14.5.1.4)—supplementary control system (submitted June 14, 1974), and article 14.1—supplementary control system (submitted November 17, 1981) because they are not in the applicable SIP.

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3.  Provisions that EPA promulgates under CAA section 110(c) in substitution of disapproved State provisions are referred to as Federal Implementation Plans (FIPs).

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4.  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. CAA section 193 prohibits modifications in control requirements that were in effect before the CAA of 1990 in any nonattainment area unless the modification ensures equivalent or greater emission reductions of the nonattainment pollutant.

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5.  Because the current statutory provisions essentially mirror the outdated provisions, we view our proposed approval of the current statutory provisions as a re-codification and, as such, we are not taking action to remedy pre-existing deficiencies in the applicable SIP. We note, however, that one of the provisions, NRS 445B.200 (“Creation and composition; chairman; quorum; compensation of members and employees; disqualification; technical support”), does not meet the related SIP requirements (CAA section 110(a)(2)(E)(ii) and CAA section 128) and could be the subject of some future EPA rulemaking, such as one under CAA section 110(k)(5).

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[FR Doc. E6-14214 Filed 8-25-06; 8:45 am]

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