Revisions to the Nevada State Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval of revisions to the Nevada State Implementation Plan (SIP). These revisions were proposed in the Federal Register on September 13, 2005 and include definitions, sulfur oxide emission regulations, and various other burning regulations. We are approving these regulations in order to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

Effective Date: This rule is effective on April 26, 2006.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2005-NV-0001 for this action. The index to the docket is available electronically at http://regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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

I. Proposed Action

On September 13, 2005 (70 FR 53975), EPA proposed to approve into the Nevada SIP those regulations that are listed below in Table 1. We have revised the submittal date from February 16, 2005 (as listed in our proposal) to January 12, 2006 to reflect the most recent submittal of the rules to EPA. With respect to the rules listed in Table 1, the submittals dated February 16, 2005 and January 12, 2006 are identical, and we consider the earlier submittal to be superseded by the later submittal. As explained in section II, Public Comments and EPA Responses, of this notice, we are not taking final action in this notice on five of the definitions for which we had proposed approval in our September 13, 2005 notice.

We proposed to approve these regulations because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the regulations and our evaluation.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received a comment from Jennifer L. Carr, P.E., Chief, Bureau of Air Quality Planning, Nevada Division of Environmental Protection (NDEP), in a letter dated October 5, 2005. The comment requested that EPA not approve two definitions, NAC 445B.063, Excess emissions; and NAC 445B.153, Regulated air pollutant, that EPA had proposed for approval. In response, we are not taking final action on those two definitions in today's notice. EPA will take action on revised versions of these provisions in a separate Federal Register action.

While no other comments were received, we have decided, upon further review, not to take final action at this time on three additional definitions for which we had proposed approval in our September 13, 2005 notice: NAC 445B.134, Person; NAC 445B.084, Hazardous air pollutant; and NAC 445B.196, Toxic regulated air pollutant. We have decided not to take final action on NAC 445B.134, Person, because it relies upon two statutory definitions of the term, only one of which has been submitted to EPA as a SIP revision. The other two definitions, NAC 445B.084, Hazardous air pollutant; and NAC 445B.196, Toxic regulated air pollutant, do not relate to criteria air pollutants and thus are not appropriate for approval as part of the SIP. EPA will take action on NAC 445B.134, Person, in a separate Federal Register action.

Lastly, in this notice, we have corrected erroneous adoption dates listed in the proposal for the following rules: NAC 445B.103, Monitoring device; NAC 445B.125, Ore; and NAC 445B.2205, Sulfur emissions: Other processes which emit sulfur.

III. EPA Action

The comment submitted does not change our assessment of the remaining regulations. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these regulations into the Nevada SIP.

IV. 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 state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. 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 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 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 a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This 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 May 26, 2006. 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
• Reporting and recordkeeping requirements
• Sulfur oxide

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart DD—Nevada

2. Section 52.1470 is amended by adding paragraph (c)(56) to read as follows: