20536 Federal Register / Vol. 73, No. 74 / Wednesday, April 16, 2008 / Rules and Regulations 

Annual total parcel select postage $5M $25M $50M $100M $300M $500M 

Rebate on DDU Volume .......................................................................... 0.25% 0.50% 0.75% 1.00% 1.25% 1.50% 

2.2.5 Growth Rebates 

Beginning June 1, 2009, and each June 

1 thereafter, shippers who qualify for a 

Loyalty Rebate and who increase their 

Parcel Select volumes in the most recent 

twelve-month (June 1–May 31) period 

(compared with the previous twelvemonth period) by more than 10 percent 

will qualify for a Growth Rebate. 

(Shippers who had zero Parcel Select 

volume in the previous twelve-month 

period will not be eligible for a Growth 

Rebate.) 

For shippers meeting all of the 

eligibility criteria, the percentage level 

of the Growth Rebate is based on their 

growth percentage and their total Parcel 

Select revenue in the twelve-month 

period, as shown in Exhibit 2.2.5. 

The Growth Rebate is applied only to 

qualified incremental DDU volume. The 

Growth Rebate amount will be 

calculated by multiplying the difference 

between the previous twelve-month 

DDU volume and the most recent 

twelve-month DDU volume by the 

average postage per DDU piece over the 

current twelve-month period, times the 

applicable percentage shown in Exhibit 

2.2.5. 

Exhibit 2.2.5 Growth Rebate 

Total parcel select postage to qualify >$5M 

(percent) 

>$25M 

(percent) 

>$50M 

(percent) 

>$100M 

(percent) 

>$300M 

(percent) 

>$500M 

(percent) 

Total parcel select annual growth rate (percent) ..................................... Rebate on qualified incremental DDU volume

>10 ........................................................................................................... 2 4 6 8 10 10 

>20 ........................................................................................................... 4 6 8 10 12 12 

>30 ........................................................................................................... 6 8 10 12 14 14 

At the discretion of the USPS, 

volumes from the following 3-digit ZIP 

Codes may be exempt from the Growth 

Rebates due to delivery conditions: 100–

102, 104, 107, 108, 111–113. Growth 

Rebates may not apply to volume 

growth as a result of mergers or 

acquisitions. Exclusions will be 

administered on a case-by-case basis. 

* * * * * 

500 Additional Services 

* * * * * 

507 Mailer Services 

* * * * * 

13.0 Parcel Return Service 

* * * * * 

[Revise heading by replacing ‘‘Rates’’

with ‘‘Prices’’] 

13.3 Prices 

13.3.1 Parcel Return Service—Return 

Delivery Unit 

[Revise text in 3.1 as follows:] 

Return Delivery Unit parcel prices are 

based on weight as identified in Exhibit 

13.3.2 and 13.3.3. Parcels that measure 

more than 108 inches but not more than 

130 inches in combined length and girth 

must pay the oversized price. RDU 

postage will be determined by the 

average weight of pieces retrieved from 

the RBMC or through a reverse manifest 

service agreement. 

[Revise the heading of Exhibit 13.3.2 

to read as follows:] 

Exhibit 13.3.2 Parcel Return Service—

Return Machinable 

[Insert chart] 

[Revise the heading of Exhibit 13.3.3 

to read as follows:] 

Exhibit 13.3.3 Parcel Return Service—

Nonmachinable 

[Insert chart] 

* * * * * 

700 Special Standards 

703 Nonprofit Standard Mail and 

Other Unique Eligibility 

* * * * * 

2.0 Overseas Military Mail 

2.1 Basic Standards 

* * * * * 

2.1.2 APO/FPO Priority Mail Flat-Rate 

Boxes 

[Revise text by adding reference to 

commercial prices at the end of the 

second paragraph.] 

* * * See Exhibit 1.2b, Priority Mail 

Prices—Commercial, for the commercial 

base price. 

We will publish an appropriate 

amendment to 39 CFR 111.3. 

Neva R. Watson, 

Attorney, Legislative. 

[FR Doc. E8–8210 Filed 4–15–08; 8:45 am] 

BILLING CODE 7710–12–P 

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. 


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1We note that the stationary source permitting 

rules that are the subject of this final rule are not 

intended to satisfy the requirements for preconstruction review and permitting of major 

sources or major modifications under part C 

(‘‘Prevention of Significant Deterioration of air 

quality’’) or part D (‘‘Plan requirements for 

nonattainment areas’’) of title I of the Clean Air Act. 

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. 

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 resubmitted by NDEP when they submit their rules 

implementing PSD for approval by EPA as a SIP 

revision. 

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, yannayon.laura@epa.gov. 

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. 

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

Submitted rule Title Adoption 

date 

Submittal 

date 

April 17, 2007 

proposed action 

NAC 445B.021 ......................... ‘‘Area source’’ defined ............................................................... 11/03/93 01/12/06 Disapproval. 

NAC 445B.028 ......................... ‘‘Best available control technology’’ defined .............................. 03/26/96 01/12/06 Disapproval. 

NAC 445B.178 ......................... ‘‘Source reduction’’ defined ........................................................ 03/03/94 01/12/06 Disapproval. 

NAC 445B.196 ......................... ‘‘Toxic regulated air pollutant’’ defined ...................................... 10/03/95 01/12/06 Disapproval. 

NAC 445B.22083 ..................... Construction, major modification or relocation of plants to generate electricity using steam produced by burning of fossil 

fuels.

10/04/05 01/12/06 Approval. 

NAC 445B.250 ......................... Notification of planned construction or reconstruction .............. 10/04/05 01/12/06 Approval. 

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

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. 


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20538 Federal Register / Vol. 73, No. 74 / Wednesday, April 16, 2008 / Rules and Regulations 

TABLE 2.—SUBMITTED RULES GOVERNING APPLICATION FOR, AND ISSUANCE OF, PERMITS FOR STATIONARY SOURCES

UNDER NDEP JURISDICTION

Submitted rule Title Adoption 

date 

Submittal 

date 

NAC 445B.003 ................................... ‘‘Adjacent properties’’ defined ......................................................................... 11/03/93 01/12/06 

NAC 445B.0035 ................................. ‘‘Administrative revision to a Class I operating permit’’ defined .................... 08/19/04 01/12/06 

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’’ defined ...................................................... 10/03/95 01/12/06 

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 cap’’ defined ............................................. 11/03/93 01/12/06 

NAC 445B.082 ................................... ‘‘General permit’’ defined ................................................................................ 10/03/95 01/12/06 

Sec. 4 of R096–05 ............................. ‘‘Good engineering practice stack height’’ defined ......................................... 10/04/05 01/12/06 

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’’ defined ......................................................... 11/19/02 01/12/06 

NAC 445B.1345 ................................. ‘‘Plantwide applicability limitation’’ defined ..................................................... 08/19/04 01/12/06 

NAC 445B.138 ................................... ‘‘Potential to emit’’ defined .............................................................................. 03/26/98 01/12/06 

NAC 445B.142 ................................... ‘‘Prevention of significant deterioration of air quality’’ defined ....................... 11/03/93 01/12/06 

NAC 445B.147 ................................... ‘‘Program’’ defined .......................................................................................... 11/03/93 01/12/06 

NAC 445B.154 ................................... ‘‘Renewal of an operating permit’’ defined ..................................................... 11/03/93 01/12/06 

NAC 445B.156 ................................... ‘‘Responsible official’’ defined ......................................................................... 11/03/93 01/12/06 

NAC 445B.157 ................................... ‘‘Revision of an operating permit’’ defined ..................................................... 08/19/04 01/12/06 

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 requirements; exception; restriction on transfers.08/19/04 01/12/06 

NAC 445B.288 ................................... Operating permits: Exemptions from requirements; insignificant activities .... 05/10/01 01/12/06 

NAC 445B.295 ................................... Application: General requirements ................................................................. 09/06/06 12/08/06 

NAC 445B.297 ................................... Application: Submission of application and supplementary or corrected information.08/19/04 01/12/06 

NAC 445B.298 ................................... Application: Official date of submittal ............................................................. 08/19/04 01/12/06 

NAC 445B.305 ................................... Operating permits: Imposition of more stringent standards for emissions .... 10/03/95 01/12/06 

NAC 445B.308 ................................... Prerequisites and conditions for issuance of operating permits: Environmental evaluation; compliance with control strategy; exemption from environmental evaluation.09/06/06 12/08/06 

NAC 445B.310 ................................... Environmental evaluation: Applicable sources ............................................... 09/06/06 12/08/06 

NAC 445B.311 ................................... Environmental evaluation: Required information ............................................ 09/06/06 12/08/06 

NAC 445B.313 ................................... Method for determining heat input: Class I sources ...................................... 11/19/02 01/12/06 

NAC 445B.3135 ................................. Method for determining heat input: Class II sources ..................................... 11/19/02 01/12/06 

NAC 445B.314 ................................... Method for determining heat input: Class III sources .................................... 11/19/02 01/12/06 

NAC 445B.315 ................................... Contents of operating permits: Exception for operating permits to construct; 

required conditions.

11/19/02 01/12/06 

NAC 445B.318 ................................... Operating permits: Separate permit required for each source; form of application; issuance or denial of permit; posting of permit.09/06/06 12/08/06 

NAC 445B.319 ................................... Operating permits: Administrative amendment .............................................. 08/19/04 01/12/06 

NAC 445B.325 ................................... Operating permits: Termination, reopening and revision, revision, or revocation and reissuance.01/22/98 01/12/06 

NAC 445B.326 ................................... Operating permits: Assertion of emergency as affirmative defense to action 

for noncompliance.

11/03/93 01/12/06 

NAC 445B.331 ................................... Request for change of location of emission unit ............................................ 09/06/06 12/08/06 

NAC 445B.3361 ................................. General requirements ..................................................................................... 09/06/06 12/08/06 

NAC 445B.3363 ................................. Operating permit to construct: Application ..................................................... 09/06/06 12/08/06 


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TABLE 2.—SUBMITTED RULES GOVERNING APPLICATION FOR, AND ISSUANCE OF, PERMITS FOR STATIONARY SOURCES

UNDER NDEP JURISDICTION—Continued 

Submitted rule Title Adoption 

date 

Submittal 

date 

NAC 445B.33637 ............................... Operating permit to construct for approval of plantwide applicability limitation: Application.08/19/04 01/12/06 

NAC 445B.3364 ................................. Operating permit to construct: Review of application and determination of 

completeness by director; notice.

09/06/06 12/08/06 

NAC 445B.3365 ................................. Operating permit to construct: Required conditions ....................................... 09/06/06 12/08/06 

NAC 445B.33656 ............................... Operating permit to construct for approval of plantwide applicability limitation: Required conditions and information.09/06/06 12/08/06 

NAC 445B.3366 ................................. Operating permit to construct: Expiration; extension ..................................... 09/06/06 12/08/06 

NAC 445B.3368 ................................. Application: Additional requirements; exception ............................................. 08/19/04 01/12/06 

NAC 445B.3375 ................................. Class I–B application: Filing requirement ....................................................... 09/06/06 12/08/06 

NAC 445B.3395 ................................. Review of application and determination of completeness by director; notice; expiration of permit.09/06/06 12/08/06 

NAC 445B.340 ................................... Prerequisites to issuance, revision or renewal of permit ............................... 01/22/98 01/12/06 

NAC 445B.342 ................................... Revision of permit: Exception when making certain changes; notification of 

changes.

09/06/06 12/08/06 

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 incorporate conditions of certain permits 

to construct.

09/06/06 12/08/06 

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 completeness by director ................................ 09/06/06 12/08/06 

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 completeness by director ................................ 09/06/06 12/08/06 

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 


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3CAA 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. 

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

Existing SIP rule Title Submittal 

date Approval date and FR April 17, 2007 proposed action 

NAQR Article 1.60 .......................... Effective date .................................. 12/29/78 08/27/81 at 46 FR 43141 ............... Disapproval. 

NAQR Article 1.72 .......................... Existing facility ................................ 12/10/76 08/21/78 at 43 FR 36932 ............... Disapproval. 

NAQR Article 13, subsection 

13.1.3(3).

[BACT requirement in atainment 

areas].

03/17/80 04/14/81 at 46 FR 21758 ............... Approval. 

NAC 445.706(2) .............................. [payment of fees] ............................ 10/26/82 03/27/84 at 49 FR 11626 ............... Approval. 

NAC 445.715 .................................. Operation permits: revocation ........ 10/26/82 03/27/84 at 49 FR 11626 ............... Disapproval. 

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

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 


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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

Submitted statutory provision 

or rule Title Adoption date Submittal date 

NRS 485.050 ............................ ‘‘Motor vehicle’’ defined ............................................................. No adoption date ..................... 08/20/07 

NRS 482.123 ............................ ‘‘Special mobile equipment’’ defined ......................................... No adoption ............................. 08/20/07 

NAC 445B.013 .......................... ‘‘Allowable emissions’’ defined .................................................. 10/04/05 ................................... 08/20/07 

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 technique’’defined .................................................. 10/04/05 ................................... 08/20/07 

NAC 445B.064 .......................... ‘‘Excessive concentration’’ defined ............................................ 10/04/05 ................................... 08/20/07 

NAC 445B.083 .......................... ‘‘Good engineering practice stack height’’ defined .................... 10/04/05 ................................... 08/20/07 

NAC 445B.107 .......................... ‘‘Nearby’’ defined ....................................................................... 10/04/05 ................................... 08/20/07 

NAC 445B.157 .......................... ‘‘Revision of an operating permit’’ defined ................................ 08/19/04 ................................... 08/20/07 

NAC 445B.22083 ...................... Construction, major modification or relocation of plants to generate electricity using steam produced by burning of fossil 

fuels.

10/04/05 ................................... 08/20/07 

NAC 445B.250 .......................... Notification of Director: Construction, reconstruction and initial 

start-up; demonstration of continuous monitoring system 

performance.

10/04/05 ................................... 08/20/07 

NAC 445B.287(1), (3), and (4) Operating permits: General requirements; exception; restrictions on transfers.09/06/06 ................................... 08/20/07 

NAC 445B.297(1) ..................... Application: Submission; certification; additional information .... 09/06/06 ................................... 08/20/07 

NAC 445B.315 .......................... Contents of operating permits: Exception for operating permits 

to construct; required conditions.

03/08/06 ................................... 08/20/07 

NAC 445B.3368 ........................ Additional requirements for application; exception .................... 08/19/04 ................................... 08/20/07 

NAC 445B.342 .......................... Certain changes authorized without revision of permit; notification of authorized changes.10/04/05 ................................... 08/20/07 

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 


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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, 


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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 


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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. 


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4The 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). 

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. 

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. 


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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). 

6Thus, 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. 

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. 

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. 

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 worstcase 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 


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7Final 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). 

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. 

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 


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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. 

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

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. 

■ 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 paragraphs (c)(18)(i)(A), 

(c)(25)(vi), (c)(56)(i)(A)(9), and (c)(67) to 

read as follows: 

§ 52.1470 Identification of plan. 

* * * * * 

(c) * * * 

(18) * * * 

(i) * * * 

(A) Previously approved on April 14, 

1981 in paragraph (c)(18)(i) of this 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 74 / Wednesday, April 16, 2008 / Rules and Regulations 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 206 

[Docket ID FEMA–2008–0003] 

RIN 1660–AA59 

Disaster Assistance; Change in 

Federal Share for Alternate Projects for 

Public Facilities 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This final rule makes a 

conforming amendment to the Federal 

Emergency Management Agency’s 

(FEMA) Public Assistance regulations to 

reflect two changes to the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act (the Stafford Act) made 

by the Security and Accountability For 

Every Port Act of 2006 (the SAFE Port 

Act). The first change amends the 

percentage of the Federal contribution 

for alternate projects from 75 percent to 

90 percent of the Federal share of the 

Federal estimate of eligible costs for 

public facilities. The second change 

removes language that provided for 

Federal funding of 90 percent of the 

Federal share of the approved Federal 

estimate of eligible costs for alternate 

projects in areas with unstable soil. 

These changes are technical and 

conforming amendments that revise 

FEMA’s regulations to conform with 

amendments to the Stafford Act. FEMA 

is exercising no discretion in 

implementing these changes. 

DATES: This final rule is effective April 

16, 2008. 

FOR FURTHER INFORMATION CONTACT: 

James A. Walke, Director, Public 

Assistance Division, Federal Emergency 

Management Agency, 500 C Street SW., 

Room 601, Washington, DC 20472, 

(phone) 202–646–2751; (facsimile) 202–

646–3304; or (e-mail) 

James.Walke@dhs.gov. 

SUPPLEMENTARY INFORMATION: Under the 

authority of the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act (the Stafford Act), Public 

Law 93–288, as amended, 42 U.S.C. 

5121–5207, the Federal Emergency 

Management Agency (FEMA) provides 

funding to State or local governments or 

private nonprofit organizations (PNPs) 

to repair, restore, reconstruct or replace 

public facilities owned or controlled by 

the State or local government or PNP. If, 

however, the State or local government 

or PNP determines that the public 

welfare would not best be served by 

repairing, restoring, reconstructing, or 

replacing the public facility, it may elect 

to receive a contribution to use for 

alternate projects. Any alternate project 

must either be ‘‘to repair, restore, or 

expand other selected public facilities; 

to construct new facilities; or to fund 

hazard mitigation measures that the 

State or local government determines to 

be necessary to meet a need for 

governmental services and functions in 

the area affected by the major disaster.’’

(42 U.S.C. 5172(c)(1); 44 CFR 

206.203(d)(2)). 

Section 609 of the Security and 

Accountability For Every Port Act of 

2006 (SAFE Port Act), Public Law 109–

347, 120 Stat. 1884, October 13, 2006, 

amended section 406(c)(1) of the 

Stafford Act by changing the Federal 

contribution for alternate projects for 

State and local government applicants 

from ‘‘75 percent of the Federal share’’

of the eligible costs for public facilities 

to ‘‘90 percent of the Federal share’’ of 

the eligible costs for public facilities. 

Accordingly FEMA is revising 44 CFR 

206.203(d)(2)(ii) to reflect this 

statutorily mandated percent share 

increase for public facilities. 

Because Congress made this change 

for public facilities, but made no change 

to the 75 percent contribution for 

private nonprofit applicants’ alternate 

projects, FEMA is adding a new 

paragraph to separately address the 

Federal contribution for private 

nonprofit facilities, which remains at 75 

percent. 

Section 609 of the SAFE Port Act also 

struck former section 406(B) of the 

Stafford Act, which provided for 

Federal funding of 90 percent of the 

Federal share of the approved Federal 

estimate of eligible costs of alternate 

projects in areas with unstable soil. 

Because Congress removed this 

authority from the Stafford Act and 

because FEMA will already be 

providing funding of 90 percent of the 

Federal share of the approved Federal 

estimate to State and local governments 

regardless of the stability of the soil 

through its change to 44 CFR 

206.203(d)(2)(ii), FEMA is removing the 

regulation that implemented section 

406(B) at 44 CFR 206.203(d)(2)(iii). 

Administrative Procedure Act 

Under the Administrative Procedure 

Act (APA), a notice of a proposed 

rulemaking is not necessary to revise a 

regulation if the agency finds for good 

cause that notice and public procedure 

are ‘‘impracticable, unnecessary, or 

contrary to the public interest.’’ See 5 

U.S.C. 553(b)(3)(B). This rulemaking 

conforms with the good cause 

exemption under section 553(b)(B) of 

the APA because notice and comment is 

unnecessary and impractical. Public 

comments would serve no useful 

purpose, as the revision to the 

regulation is mandated by the change to 

FEMA’s statutory authority, and FEMA 

has no discretion to alter this statutory 

mandate. For these reasons, FEMA also 

finds that it has good cause not to delay 

the effective date of this rule under 5 

U.S.C. 553(d)(3). 

Executive Order 12866, as Amended, 

Regulatory Planning and Review 

FEMA has prepared and reviewed this 

rulemaking under the provisions of 

Executive Order 12866, 58 FR 51735, 

Oct. 4, 1993, and as amended. Under 

Executive Order 12866, a significant 

regulatory action is subject to the Office 


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