```

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

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the applicable state implementation plan for the State of 
Nevada. The submitted revisions include new or amended State rules 
governing applications for, and issuance of, permits for stationary 
sources, but not including review and permitting of major sources and 
major modifications under parts C and D of title I of the Clean Air 
Act. EPA is proposing this action under the Clean Air Act obligation to 
take action on State submittals of revisions to state implementation 
plans. The intended effect of the limited approval and limited 
disapproval action is to update the applicable state implementation 
plan with current State rules with respect to permitting, and to set 
the stage for remedying deficiencies in the permitting rules with 
respect to certain new or revised national ambient air quality 
standards. If finalized as proposed, this limited disapproval action 
would not trigger sanctions under section 179 of the Clean Air Act but 
would trigger an obligation on EPA to promulgate a Federal 
Implementation Plan unless the State of Nevada corrects the 
deficiencies, and EPA approves the related plan revisions within two 
years of the final action.

DATES: Written comments must be received on or before July 30, 2012.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0141, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. Email: R9airpermits@epa.gov.
    3. Mail or deliver: Gerardo Rios (AIR-3), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or email. 
www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send email directly to EPA, your email 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, 75 
Hawthorne Street (AIR-3), San Francisco, CA 94105, phone number (415) 
972-3534, fax number (415) 947-3579, or by email at 
yannayon.laura@epa.gov.

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

Table of Contents

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

I. The State's Submittals

A. Which rules did the state submit?

    On January 24, 2011, the Nevada Division of Environmental 
Protection (NDEP) submitted a revision to the Nevada State 
Implementation Plan (SIP) to EPA for approval or disapproval under 
section 110(k) of the Clean Air Act (CAA or ``Act''). NDEP's submittal 
includes certain new or amended State rules [i.e., certain sections of 
Nevada Administrative Code (NAC)] that govern applications for, and 
issuance of, permits for stationary sources [a process referred to 
herein as ``New Source Review'' (NSR) and rules referred to herein as 
``NSR rules''].\1\ NDEP's January 24, 2011 submittal also includes a 
rescission of one definition from the existing SIP (the definition of 
``special mobile equipment''). In addition to the NSR rules, NDEP's 
January 24, 2011 submittal contains evidence of public notice and 
adoption of the rules, or amendments to the rules, since March 2006. 
Evidence of public notice and adoption of the NSR rules or amendments 
that predate March 2006 were previously submitted by NDEP in SIP 
revision submittals dated February 16, 2005 and January 12, 2006. By 
letter dated February 17, 2011, we found that the January 24, 2011 
submittal fulfills the completeness criteria in 40 CFR part 51, 
appendix V.
---------------------------------------------------------------------------

    \1\ We note that the stationary source permitting rules that are 
the subject of this proposed rule are not intended to satisfy the 
requirements for pre-construction review and permitting of major 
sources or major modifications under part C (``Prevention of 
Significant Deterioration of air quality'') or part D (``Plan 
requirements for nonattainment areas'') of title I of the Clean Air 
Act.
---------------------------------------------------------------------------

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

[[Page 38558]]

of emissions-based thresholds for triggering the public notice 
requirements for draft permits for certain source modifications.
    Table 1 below lists the rules (and one statutory definition) that 
were submitted by NDEP on January 24, 2011, November 9, 2011, and May 
21, 2012 and on which EPA is proposing action in this document.

Table 1--Submitted Rules (and Statutory Definition) Governing NSR for Stationary Sources Under NDEP Jurisdiction
----------------------------------------------------------------------------------------------------------------
                                                                                                      Submittal
          Submitted rule                              Title                        Adoption date         date
----------------------------------------------------------------------------------------------------------------
NAC 445B.003......................  ``Adjacent properties'' defined..........  11/03/93............     01/24/11
NAC 445B.0035.....................  ``Administrative revision to a Class I     08/19/04............     01/24/11
                                     operating permit'' defined.
NAC 445B.007......................  ``Affected state'' defined...............  11/03/93............     01/24/11
NAC 445B.013......................  ``Allowable emissions'' defined..........  10/04/05............     01/24/11
NAC 445B.014......................  ``Alteration'' defined...................  10/03/95............     01/24/11
NAC 445B.016......................  ``Alternative operating scenarios''        10/03/95............     01/24/11
                                     defined.
NAC 445B.019......................  ``Applicable requirement'' defined.......  06/17/10............     01/24/11
NAC 445B.035......................  ``Class I-B application'' defined........  10/03/95............     01/24/11
NAC 445B.036......................  ``Class I source'' defined...............  08/19/04............     01/24/11
NAC 445B.037......................  ``Class II source'' defined..............  06/17/10............     01/24/11
NAC 445B.038......................  ``Class III source'' defined.............  06/17/10............     01/24/11
NAC 445B.0423.....................  ``Commence'' defined.....................  03/18/08............     05/21/12
NAC 445B.044......................  ``Construction'' defined.................  10/04/05............     01/24/11
NAC 445B.046......................  ``Contiguous property'' defined..........  09/16/76............     01/24/11
NAC 445B.054......................  ``Dispersion technique'' defined.........  10/04/05............     01/24/11
NAC 445B.064......................  ``Excessive concentration'' defined......  10/04/05............     01/24/11
NAC 445B.066......................  ``Existing stationary source'' defined...  10/03/95............     01/24/11
NAC 445B.068......................  ``Facility'' defined.....................  10/03/95............     01/24/11
NAC 445B.069......................  ``Federally enforceable'' defined........  03/18/08............     01/24/11
NAC 445B.070......................  ``Federally enforceable emissions cap''    11/03/93............     01/24/11
                                     defined.
NAC 445B.082......................  ``General permit'' defined...............  10/03/95............     01/24/11
NAC 445B.083......................  ``Good engineering practice stack          10/04/05............     01/24/11
                                     height'' defined.
NAC 445B.087......................  ``Increment'' defined....................  11/03/93............     01/24/11
NAC 445B.093......................  ``Major modification'' defined...........  08/19/04............     01/24/11
NAC 445B.094......................  ``Major source'' defined.................  05/10/01............     01/24/11
NAC 445B.0945.....................  ``Major stationary source'' defined......  08/19/04............     01/24/11
NAC 445B.099......................  ``Modification'' defined.................  10/03/95............     01/24/11
NAC 445B.104......................  ``Motor vehicle'' defined................  05/10/01............     01/24/11
NRS 485.050.......................  ``Motor vehicle'' defined................  As amended in 2003..     05/21/12
NAC 445B.107......................  ``Nearby'' defined.......................  10/04/05............     01/24/11
NAC 445B.108......................  ``New stationary source'' defined........  10/03/95............     01/24/11
NAC 445B.117......................  ``Offset'' defined.......................  10/03/95............     01/24/11
NAC 445B.123......................  ``Operating permit'' defined.............  06/17/10............     01/24/11
NAC 445B.124......................  ``Operating permit to construct'' defined  11/19/02............     01/24/11
NAC 445B.1345.....................  ``Plantwide applicability limitation''     06/17/10............     01/24/11
                                     defined.
NAC 445B.138......................  ``Potential to emit'' defined............  10/05/10............     01/24/11
NAC 445B.142......................  ``Prevention of significant deterioration  11/03/93............     01/24/11
                                     of air quality'' defined.
NAC 445B.147......................  ``Program'' defined......................  11/03/93............     01/24/11
NAC 445B.154......................  ``Renewal of an operating permit''         11/03/93............     01/24/11
                                     defined.
NAC 445B.156......................  ``Responsible official'' defined.........  06/17/10............     01/24/11
NAC 445B.157......................  ``Revision of an operating permit''        08/19/04............     01/24/11
                                     defined.
NAC 445B.179......................  ``Special mobile equipment'' defined.....  10/05/10 (repealed).     01/24/11
NAC 445B.187......................  ``Stationary source'' defined............  10/05/10............     01/24/11
NAC 445B.194......................  ``Temporary source'' defined.............  05/10/01............     01/24/11
NAC 445B.200......................  ``Violation'' defined....................  11/03/93............     05/21/12
NAC 445B.287......................  Operating permits: General requirements;   06/17/10............     01/24/11
                                     exception; restriction on transfers.
NAC 445B.287(2)...................  [Provision addressing the operating        06/17/10............     05/21/12
                                     permit requirements for certain types of
                                     Class I sources].
NAC 445B.288......................  Operating permits: Exemptions from         03/18/08............     01/24/11
                                     requirements; insignificant activities.
NAC 445B.295......................  Application: General requirements........  09/06/06............     01/24/11
NAC 445B.297......................  Application: Submission; certification;    03/08/06............     01/24/11
                                     additional information.
NAC 445B.298......................  Application: Official date of submittal..  06/17/10............     01/24/11
NAC 445B.305......................  Operating permits: Imposition of more      06/17/10............     01/24/11
                                     stringent standards for emissions.
NAC 445B.308......................  Prerequisites and conditions for issuance  03/18/08............     01/24/11
                                     of certain operating permits; compliance
                                     with applicable state implementation
                                     plan.
NAC 445B.310......................  Environmental evaluation: Applicable       09/06/06............     01/24/11
                                     sources and other subjects; exemption.
NAC 445B.311......................  Environmental evaluation: Contents;        10/05/10............     01/24/11
                                     consideration of good engineering
                                     practice stack height.
NAC 445B.313......................  Method for determining heat input: Class   10/05/10............     01/24/11
                                     I sources.
NAC 445B.3135.....................  Method for determining heat input: Class   11/19/02............     01/24/11
                                     II sources.
NAC 445B.314......................  Method for determining heat input: Class   11/19/02............     01/24/11
                                     III sources.

[[Page 38559]]

 
NAC 445B.315......................  Contents of operating permits: Exception   03/08/06............     01/24/11
                                     for operating permits to construct;
                                     required conditions.
NAC 445B.318......................  Operating permits: Requirement for each    03/08/06............     01/24/11
                                     source; form of application; issuance or
                                     denial; posting.
NAC 445B.319......................  Operating permits: Administrative          08/19/04............     01/24/11
                                     amendment.
NAC 445B.325......................  Operating permits: Termination, reopening  06/17/10............     01/24/11
                                     and revision, revision, or revocation
                                     and reissuance.
NAC 445B.331......................  Request for change of location of          09/06/06............     01/24/11
                                     emission unit.
NAC 445B.3361.....................  General requirements.....................  06/17/10............     01/24/11
NAC 445B.3363.....................  Operating permit to construct:             12/09/09............     01/24/11
                                     Application.
NAC 445B.33637....................  Operating permit to construct for          08/19/04............     01/24/11
                                     approval of plantwide applicability
                                     limitation: Application.
NAC 445B.3364.....................  Operating permit to construct: Action by   12/09/09............     01/24/11
                                     Director on application; notice; public
                                     comment and hearing.
NAC 445B.3365.....................  Operating permit to construct: Contents;   03/08/06............     01/24/11
                                     noncompliance with conditions.
NAC 445B.33656....................  Operating permit to construct for          03/08/06............     01/24/11
                                     approval of plantwide applicability
                                     limitation: Contents; noncompliance with
                                     conditions.
NAC 445B.3366.....................  Expiration and extension of operating      09/06/06............     01/24/11
                                     permit to construct; expiration and
                                     renewal of plantwide applicability
                                     limitation.
NAC 445B.3368.....................  Additional requirements for application;   12/09/09............     01/24/11
                                     exception.
NAC 445B.3375.....................  Class I-B application: Filing requirement  09/06/06............     01/24/11
NAC 445B.3395.....................  Action by Director on application;         03/18/08............     01/24/11
                                     notice; public comment and hearing;
                                     objection by Administrator; expiration
                                     of permit.
NAC 445B.340......................  Prerequisites to issuance, revision or     03/18/08............     01/24/11
                                     renewal of permit.
NAC 445B.342......................  Certain changes authorized without         10/04/05............     01/24/11
                                     revision of permit; notification of
                                     authorized changes.
NAC 445B.3425.....................  Minor revision of permit.................  08/19/04............     01/24/11
NAC 445B.344......................  Significant revision of permit...........  11/19/02............     01/24/11
NAC 445B.3441.....................  Administrative revision of permit to       09/06/06............     01/24/11
                                     incorporate conditions of certain
                                     permits to construct.
NAC 445B.3443.....................  Renewal of permit........................  11/12/08............     01/24/11
NAC 445B.3447.....................  Class I general permit...................  11/19/02............     05/21/12
NAC 445B.3453.....................  Application: General requirements........  03/08/06............     01/24/11
NAC 445B.3457.....................  Action by Director on application;         10/05/11............     11/09/11
                                     notice; public comment and hearing;
                                     expiration of permit.
NAC 445B.346......................  Required contents of permit..............  10/03/95............     01/24/11
NAC 445B.3465.....................  Application for revision.................  10/04/05............     01/24/11
NAC 445B.3473.....................  Renewal of permit........................  11/12/08............     01/24/11
NAC 445B.3477.....................  Class II general permit..................  03/18/08............     01/24/11
NAC 445B.3485.....................  Application: General requirements........  09/06/06............     01/24/11
NAC 445B.3487.....................  Action by Director on application;         09/06/06............     01/24/11
                                     expiration of permit.
NAC 445B.3489.....................  Required contents of permit..............  09/06/06............     01/24/11
NAC 445B.3493.....................  Application for revision.................  09/18/01............     01/24/11
NAC 445B.3497.....................  Renewal of permit........................  11/12/08............     01/24/11
----------------------------------------------------------------------------------------------------------------

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

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

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

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

[[Page 38560]]

            Table 2--Existing SIP Rules Governing NSR for Stationary Sources Under NDEP Jurisdiction
----------------------------------------------------------------------------------------------------------------
    Nevada Air Quality Regulations (NAQR) or Nevada
               Administrative Code (NAC)                        Fed. reg. citation and EPA  approval date
----------------------------------------------------------------------------------------------------------------
NAQR article 1.36--Commenced...........................  43 FR 36932 (August 21, 1978).
NAQR article 1.42--Construction........................  43 FR 36932 (August 21, 1978).
NAQR article 1.43--Contiguous property.................  43 FR 36932 (August 21, 1978).
NAQR article 1.72--Existing facility...................  43 FR 36932 (August 21, 1978).
NAQR article 1.104--Major stationary source............  43 FR 36932 (August 21, 1978).
NAQR article 1.109--Modification.......................  43 FR 36932 (August 21, 1978).
NAQR article 1.111--Motor vehicle......................  43 FR 36932 (August 21, 1978).
NAC 445.559--``Operating permit'' defined..............  49 FR 11626 (March 27, 1984).
NAQR article 1.182--Special mobile equipment...........  43 FR 36932 (August 21, 1978).
NAQR article 1.187--Stationary source..................  43 FR 36932 (August 21, 1978).
NAC 445.649--``Violation'' defined.....................  49 FR 11626 (March 27, 1984).
NAQR article 3.1.6--[``Application forms for requesting  43 FR 1341 (January 9, 1978).
 the issuance of either a registration certificate or
 an operating permit can be obtained from the
 Director.''].
NAC 445.704--Registration certificates and operating     49 FR 11626 (March 27, 1984).
 permits required.
NAC 445.705--Exemptions................................  49 FR 11626 (March 27, 1984).
NAC 445.706(1)--Application date; payment of fees......  49 FR 11626 (March 27, 1984).
NAC 445.707--Registration certificates: Prerequisite;    49 FR 11626 (March 27, 1984).
 application; fee; issuance, denial; expiration.
NAC 445.712--Operating permits: Prerequisite;            49 FR 11626 (March 27, 1984).
 application; fee; issuance, denial; posting.
NAC 445.713--Operating permits: Renewal................  49 FR 11626 (March 27, 1984).
NAC 445.714--Operating permits: Replacement of lost or   49 FR 11626 (March 27, 1984).
 damaged permits.
NAC 445.715--Operating permits: Revocation.............  49 FR 11626 (March 27, 1984).
NAC 445.716--Operating permits: Change of location.....  49 FR 11626 (March 27, 1984).
NAQR article 13.1--(``General Provisions for the Review  46 FR 21758 (April 14, 1981).
 of New Sources''), subsection 13.1.3(1).
NAQR article 13.1--(``General Provisions for the Review  40 FR 13306 (March 26, 1975).
 of New Sources''), subsections 13.1.4, 13.1.5, 13.1.6,
 and 13.1.7.
NAQR article 13.2--[applicability thresholds for         47 FR 27070 (June 23, 1982).
 environmental evaluations (EEs)], subsections 13.2.3
 and 13.2.4.
NAQR article 13.3--[content requirements for EEs],       47 FR 27070 (June 23, 1982).
 subsection 13.3.1, 13.3.1.1, 13.3.1.2\2\.
----------------------------------------------------------------------------------------------------------------

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

    \2\ NDEP's NSR SIP retains certain nonattainment NSR provisions 
including the definition of the term, ``lowest achievable emission 
rate'' (LAER), and NAQR article 13.1.3(2) in the SIP. NAQR article 
13.1.1 establishes an environmental evaluation (EE) requirement, and 
NAQR article 13.1.3(2) establishes the LAER requirement. LAER is 
defined to apply to applicants who are required to submit EEs, and 
such applicants are identified by emissions-based threshold values 
in article 13.2, 13.2.1, and 13.2.2, submitted on July 24, 1979 and 
approved on June 23, 1982 (47 FR 27070). Thus, the existing SIP 
definition for LAER, NAQR articles 13.1.1, 13.2, 13.2.1, and 13.2.2 
must be retained in the SIP to properly interpret and apply the 
major source nonattainment requirements in NAQR article 13.1.3(2).
---------------------------------------------------------------------------

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

II. EPA's Evaluation

A. How is EPA evaluating the rules?

    EPA has reviewed the rules submitted on January 24, 2011, November 
9, 2011, and May 21, 2012 by NDEP governing NSR for stationary sources 
under NDEP jurisdiction for compliance with the CAA requirements for 
SIPs in general set forth in CAA section 110(a)(2), for compliance with 
EPA regulations for stationary source permitting programs in 40 CFR 
part 51, sections 51.160 through 51.164, and also for compliance with 
CAA requirements for SIP revisions in CAA section 110(l).\3\ As 
described below, EPA is proposing a limited approval and limited 
disapproval of the submitted NSR rules.
---------------------------------------------------------------------------

    \3\ CAA section 110(l) requires SIP revisions to be subject to 
reasonable notice and public hearing prior to adoption and submittal 
by States to EPA and prohibits EPA from approving any SIP revision 
that would interfere with any applicable requirement concerning 
attainment and reasonable further progress, or any other applicable 
requirement of the CAA.
---------------------------------------------------------------------------

B. Do the rules meet the evaluation criteria?

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

[[Page 38561]]

issues previously raised by EPA. In a separate subsection, we describe 
the new deficiencies in the NSR rules.
    First, we found that certain submitted rules used undefined terms, 
contained incorrect citations, or relied on rules or statutory 
provisions that had not been submitted for approval as part of the SIP, 
or that multiple versions of the same rule were included in the same 
submittal; and thus were unnecessarily ambiguous. Specifically, we 
found that:
     NAC 445B.3366 (``Expiration and extension of operating 
permit to construct; expiration and renewal of plantwide applicability 
limitation'') relied on the term, ``commence,'' that is not defined in 
the SIP for contexts outside of CAA section 111 (Standards of 
performance for new stationary sources)(i.e., not defined for NSR 
purposes);
     NAC 445B.069 (``Federally enforceable'' defined) included 
incorrect citations to EPA regulations;
     The following submitted rules relied on rules or statutory 
provisions that hade not been submitted: NAC 445B.287 [which cited 
subsection (2) but did not include subsection (2)], NAC 445B.104 
(citing NRS 485.050), NAC 445B.179 (citing NRS 482.123), and NAC 
445B.311 (citing NAC 445B.083); and
     Multiple versions of the following rules were submitted: 
NAC 445B.308, NAC 445B.3363, and NAC 445B.3364.
    To address these issues:
     SEC adopted a rule (NAC 445B.0423) that defines 
``commence'' for NSR purposes and NDEP submitted the rule on May 21, 
2012.
     SEC amended NAC 445B.069 (``Federally enforceable'' 
defined) to correct the citations to EPA regulations and NDEP re-
submitted the rule on January 24, 2011.
     NDEP submitted NAC 445B.287, subsection (2), and NRS 
485.050 on May 21, 2012; SEC amended the rules such that the NSR 
program no longer relies on NRS 482.123 (``Special mobile equipment''); 
and NDEP submitted NAC 445B.083 on January 24, 2011.
     The current submittals evaluated herein, dated January 24, 
2011, November 9, 2011, and May 21, 2012 do not contain multiple 
versions of the same rule.
    Second, we concluded that the definition of ``potential to emit'' 
in submitted rule NAC 445B.138 must be revised to require effective 
limits and to include criteria by which a limit is judged to be 
practicably enforceable by NDEP. In response, SEC amended the rule to 
allow certain physical or operational limitations on the capacity of a 
stationary source to emit pollutants to be treated as part of its 
design for the purposes of determining its potential to emit if the 
limitations are ``federally enforceable,'' a term that is appropriately 
defined in NAC 445B.069. This revision fully addresses the issue that 
EPA had identified in the previous version of the rule. NDEP included 
the revised rule NAC 445B.187 in its January 24, 2011 SIP submittal.
    Third, we found that NDEP's stationary source program may not be as 
inclusive as required under the CAA depending upon whether the 
exclusion of ``special mobile equipment'' from the definition of 
``stationary source'' in submitted rule NAC 445B.187 extends to engines 
and vehicles that are not considered to be ``nonroad.'' In response, 
SEC amended NAC 445B.187 to delete the exclusion for ``special mobile 
equipment,'' and NDEP included the revised rule NAC 445B.138 in its 
January 24, 2011 SIP submittal.
    Fourth, we found that the method for determining heat input for 
class I sources \4\ in submitted rule NAC 445B.313 must be amended to 
require that combustion sources make applicability determinations based 
on the maximum heat input. In response, SEC amended NAC 445B.313 
accordingly, and NDEP included the revised rule NAC 445B.313 in its 
January 24, 2011 SIP submittal.
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    \4\ EPA generally refers to stationary sources with potentials 
to emit 100 tons per year or more of criteria pollutants (those for 
which national ambient air quality standards have been promulgated, 
such as, e.g., ozone, carbon monoxide, and particulate matter) as 
``major sources'' and such sources with potentials to emit less than 
100 tons per year as ``minor sources.'' Generally, speaking, the NSR 
program adopted by the Nevada SEC relies on the term ``class I'' 
sources to refer to ``major sources'' and ``class II'' and ``class 
III'' sources to refer to ``minor sources.'' In Nevada's NSR 
program, generally speaking, ``class III'' sources are non-exempt 
sources with potentials to emit of less than 5 tons per year of 
criteria pollutants, while ``class II'' sources are those sources 
that are covered under the NSR rules but that are neither ``class 
I'' or ``class III'' sources.
---------------------------------------------------------------------------

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

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

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

[[Page 38562]]

substitute model, and to require public participation prior to 
authorization of the use of such a modified or substitute model. NDEP 
submitted the revised rule on January 24, 2011.
    Eighth, to comply with 40 CFR 51.161 (``Public availability of 
information''), we concluded that the NSR rules must be amended to 
provide for adequate public review of new or modified class II sources; 
for notification to the air pollution control agencies for Washoe 
County or Clark County for those sources proposed to be constructed or 
modified in Washoe County or Clark County, respectively; and to provide 
for public participation for new or modified sources of lead with 
potential to emit 5 tons per year or more.
    In response, the SEC has amended the rule to require public 
participation prior to issuance of all new class II permits and prior 
to issuance of revisions to class II permits for which allowable 
emissions would increase in excess of specified thresholds; to require 
notification to the relevant county air agencies; and to provide for 
public participation for new or modified sources of lead with 
potentials to emit 5 tons per year or more. NDEP submitted the revised 
rule on November 9, 2011. See NAC 445B.3457, subsections (5) and (6).
    The emission-based thresholds that the SEC has established in NAC 
445B.3457 to identify class II permit revisions that are subject to the 
public participation requirement are 40 tons per year for carbon 
monoxide, volatile organic compounds, nitrogen oxides, and sulfur 
dioxide; 15 tons per year for particulate matter with an aerodynamic 
diameter of less than or equal to a nominal ten microns 
(PM10); and 0.6 tons per year for lead (Pb). In its 
submittal dated May 21, 2012, NDEP included documentation that 
indicates that selected thresholds capture more than 80 percent of the 
emissions associated with stationary sources.
    EPA regulations in 40 CFR 51.160(e) allow State NSR programs to 
exclude new minor sources and minor modifications from the NSR program 
so long as such sources and modifications are not environmentally 
significant, consistent with the de minimis exemption criteria set 
forth in Ala. Power Co. v. Costle, 636 F.2d 323, at 360-361 (D.C. Cir. 
1979).\6\ Given that 40 CFR 51.160(e) allows for sources and 
modifications that are not environmentally significant to be excluded 
entirely from the NSR program, it follows that a State or local agency 
can choose to exempt some new sources or modifications subject to 
permitting from public participation requirements, but, it must do so 
consistent with the de minimis principles and by application of well-
defined objective criteria. Thus, EPA believes that 40 CFR 51.161(a) 
allows for the tailoring of the public participation process for less 
environmentally significant sources and modifications. See, generally, 
60 FR 45530, at 45548-45549 (August 31, 1995). In this instance, we 
believe that the emissions-based thresholds represent well-defined 
objective criteria and, based on NDEP's documentation of the extent to 
which overall stationary source emissions are covered by sources 
subject to mandatory public participation, we find that the thresholds 
established in NAC 445B.3457 are reasonably calculated to exclude from 
mandatory public participation only less environmentally significant 
sources and modifications. This is acceptable.
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    \6\ While the Alabama Power court discusses the de minimis 
principle in the context of a Federal administrative agency's 
authority in promulgating rules to satisfy statutory requirements, 
the same principle can be applied where a State promulgates rules to 
satisfy requirements by a Federal administrative agency. With 
regards to the de minimis principle, the Alabama Court writes: 
``Determination of when matters are truly de minimis naturally will 
turn on the assessment of particular circumstances, and the agency 
will bear the burden of making the required showing. But we think 
most regulatory statutes, including the Clean Air Act, permit such 
agency showings in appropriate cases. While the difference is one of 
degree, the difference of degree is an important one. Unless 
Congress has been extraordinarily rigid, there is likely a basis for 
an implication of de minimis authority to provide exemption when the 
burdens of regulation yield a gain of trivial or no value. That 
implied authority is not available for a situation where the 
regulatory function does provide benefits, in the sense of 
furthering the regulatory objectives, but the agency concludes that 
the acknowledged benefits are exceeded by the costs. For such a 
situation any implied authority to make cost-benefit decisions must 
be based not on a general doctrine but on a fair reading of the 
specific statute, its aims and legislative history.'' See Ala. Power 
Co. v. Costle, 636 F.2d 323, at 360-361 (D.C. Cir. 1979).
---------------------------------------------------------------------------

    In addition, with respect to public participation associated with 
permits for new class II sources and for class II modifications, we 
note that the SEC has also revised NAC 445B.3457 to provide for 
notification to the public through means (a state Web site and mailing 
list) other than through the traditional newspaper notice. EPA believes 
that the requirement to provide the required notice by ``prominent 
advertisement'' in 40 CFR 51.161(b)(3) for new or modified minor 
sources (other than synthetic minor sources) is media neutral and can 
be met by means other than, or in combination with, the traditional 
newspaper notice.\7\ See Memorandum dated April 17, 2012 from Janet 
McCabe, Principal Deputy Assistant Administrator, EPA Office of Air and 
Radiation, to Regional Administrators, Regions 1-10, titled ``Minor New 
Source Review Program Public Notice Requirements under 40 CFR 
51.161(b)(3).''
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    \7\ As noted in footnote 4, above, ``minor sources'' are sources 
that have the potential to emit regulated NSR pollutants in amounts 
that are less than the applicable major source thresholds. Synthetic 
minor sources are those sources that have the potential to emit 
regulated NSR pollutants at or above the major source thresholds, 
but that have taken enforceable limitations to restrict their 
potential to emit below such thresholds.
---------------------------------------------------------------------------

    Subsection (6) of NAC 445B.3457 provides two means of providing 
public notice. Paragraph (b) of subsection (6) requires a copy of the 
notice to be published ``on an Internet Web site designed to give 
general public notice,\8\ '' and paragraph (c) of subsection (6) 
requires notification through a mailing list developed to include 
individuals that have requested to be included on such a list. We 
believe that such notification, with one exception, satisfies the 
requirement to provide the public with notice through ``prominent 
advertisement'' in the area affected.
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    \8\ NDEP has clarified in its submittal dated May 21, 2012 that 
NDEP's own Web site is the ``Internet Web site'' referred to in NAC 
445B.3457. The submittal refers to the wording ``state Web site'' 
which was included in the January 24, 2011 submittal, rather than 
``Internet Web site'' of the November 9, 2011 submittal for NAC 
445B.3457, but we believe the clarification is the same for either 
term.
---------------------------------------------------------------------------

    While EPA believes that notice of permitting actions may be made by 
means other than traditional newspaper notice for most types of minor 
sources, EPA also believes that, with respect to synthetic minor 
sources, an exception should be made to the use of electronic means as 
the sole means to notify the general public of proposed permitting 
actions. For synthetic minor sources, i.e., sources that have taken 
enforceable limitations to restrict their potential to emit below major 
source thresholds, we believe that the traditional means of 
notification (i.e., newspaper notice) should be included as one of the 
means for notifying the general public of proposed permit actions on 
the grounds that such sources should be treated for public 
participation purposes as major sources for which such notice is 
required. See 40 CFR 51.166(q)(2)(iii).
    NAC 445B.3457 does not provide for traditional newspaper notice of 
class II sources that constitute synthetic minor sources, but although 
we recognize that there may be instances where a proposed new synthetic 
minor source

[[Page 38563]]

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

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

    Ninth, we found that the affirmative defense provision in submitted 
rule NAC 445B.326 (``Operating permits: Assertion of emergency as 
affirmative defense to action for noncompliance'') was not approvable 
under CAA section 110(a)(2) as written because it could be applied to 
technology-based emission limitations approved into the SIP. NDEP did 
not include NAC 445B.326 in the revised sets of NSR rules submitted to 
EPA for action as a SIP revision. Furthermore an affirmative defense 
provision, such as that provided for in NAC 445B.326, is not required 
to be included in a SIP NSR program; therefore, the previously-
identified deficiencies in NAC 445B.326 do not need to be considered 
further in the context of action on the submitted NSR rules.
    Lastly, while the submitted rules include a specific prohibition on 
approving a permit for any source where the degree of emission 
limitation required is affected by that amount of the stack height as 
exceeds good engineering practice stack height or any other dispersion 
technique, we found that the relevant provision (i.e., 445B.308(3)) 
includes director's discretion (* * * if ``the Director determines'' * 
* *), which must be removed in order for EPA to approve the rules as 
meeting the requirements of 40 CFR 51.164. In response, the SEC amended 
the rule to clarify that the Director's discretion in this instance is 
limited by the additional procedural requirements set forth in 
subsection (3) of NAC 445B.311. We have reviewed the additional 
procedural requirements in subsection (3) of NAC 445B.311 and find that 
they are consistent with the related requirements in 40 CFR 51.164. 
NDEP submitted the revised rule on January 24, 2011.
    In conclusion, based on our point-by-point evaluation of the 
previous deficiencies in the previously-submitted NSR rules, as 
described above and in further detail in our TSD, we find that Nevada 
has adequately addressed all of the previously-identified deficiencies 
by submittal of appropriately amended rules and supporting 
documentation.
2. New Deficiencies in NSR Rules
    While we believe that Nevada has adequately addressed the 
previously-identified deficiencies in the NSR rules, we now find that 
the State's NSR rules fail to address certain new requirements that 
were not in effect in 2008 when EPA last took action on them.
    Under 40 CFR 51.160, in connection with NSR, each SIP must set 
forth legally enforceable procedures that enable the State or local 
agency to determine whether the construction or modification of a 
facility, building, structure or installation or combination of these 
will result in, among other impacts, interference with attainment or 
maintenance of a national standard in the state in which the proposed 
source (or modification) is located or in a neighboring State.
    To address this requirement, NAC 445B.310 and 445B.311 require 
permit applicants to prepare environmental evaluations (EE) that 
contain dispersion analyses showing the effect of the source on the 
quality of the ambient air. As explained below, NAC 445B.308, 445B.310, 
and 445B.311 represent a legally enforceable procedure that enables 
NDEP to make the necessary determinations under 40 CFR 51.160 with 
respect to the national ambient air quality standards, circa 1991, but 
not with respect to the new or revised national standards promulgated 
by EPA since that time.
    Subsection (2) of NAC 445B.308 prohibits the issuance of an 
operating permit or revision thereto for any stationary source if the 
EE shows that the stationary source would ``prevent the attainment and 
maintenance of the state or national ambient air quality standards. For 
the purposes of this paragraph, only those ambient air quality 
standards that have been established in NAC 445B.22097 need to be 
considered in the environmental evaluation.''
    NAC 445B.22097 in turn lists the Nevada ambient air quality 
standards (``Nevada standards'') and national ambient air quality 
standards (``National standards'' or NAAQS).\10\ With respect to the 
NAAQS, NAC 445B.22097 has not been updated since 1991 and thus does not 
include the new, revised, or revoked NAAQS since that time. Moreover, 
NAC 445B.22097 includes a note that states: ``The Director shall use 
the Nevada standards in considering whether to issue a permit for a 
stationary source and shall ensure that the stationary source will not 
cause the Nevada standards to be exceeded in areas where the general 
public has access.'' The Nevada ambient air quality standards are equal 
to the NAAQS (i.e., as of 1991) for those pollutants for which both 
Nevada and EPA have established ambient standards, but, because the 
Nevada standards do not reflect the changes in the NAAQS since 1991, 
reliance on them for permitting purposes does not ensure protection of 
the new or revised NAAQS established since then as NDEP reviews permit 
applications for new or modified stationary sources.
---------------------------------------------------------------------------

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

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

[[Page 38564]]

SIPs \11\ on February 26, 2008 and September 15, 2009 to address the 
1997 PM2.5 NAAQS and 2006 PM2.5 NAAQS, 
respectively. In both such PM2.5 ``infrastructure'' SIPs, 
NDEP indicated that the NSR requirements for the PM2.5 NAAQS 
were to be met by evaluating new and modified sources for compliance 
with the PM10 standard. At the time these ``infrastructure'' 
SIPs were submitted, EPA's policy allowed States to permit new or 
modified PM2.5 sources using the PM10 NSR program 
requirements as a surrogate for PM2.5. We also recognize 
that we did not take timely action on the two ``infrastructure'' SIP 
submittals, and, as a result of the passage of time, the ``surrogate'' 
policy has lapsed (since May 16, 2011). As a result, States must now 
evaluate PM2.5 emissions from new or modified sources 
directly to determine whether such sources would violate the 24-hour 
(35 [micro]g/m\3\) or annual (15 [micro]g/m\3\) PM2.5 
standards. See 40 CFR 51.166(a)(6)(i) and 73 FR 28321, at 28344 (May 
16, 2008). The submitted NSR rules evaluated herein do not yet address 
PM2.5, and given the now-current requirements for 
PM2.5 and the lapse of the surrogate policy, we cannot now 
fully approve the submitted NSR rules. In response, the State 
Environmental Commission must revise the NSR rules to ensure protection 
of the PM2.5 NAAQS in the issuance of permits for new or 
modified sources or EPA must promulgate a FIP within two years of final 
action.
---------------------------------------------------------------------------

    \11\ ``Infrastructure SIPs'' refer to SIPs submitted in response 
to EPA's promulgation of a new or revised NAAQS and include 
provisions necessary to comply with the SIP content requirements set 
forth in CAA section 110(a)(2), other than those arising from 
designation of any area within a state as ``nonattainment'' for the 
new or amended NAAQS.
---------------------------------------------------------------------------

    With respect to lead (Pb), we recognize that NDEP submitted an 
``infrastructure'' SIP on October 12, 2011 to address the 2008 Pb NAAQS 
and that we have not yet taken action on it. Furthermore, we recognize 
that, at the time NDEP submitted the Pb ``infrastructure'' SIP, the 
deadline for States to submit the necessary NSR-related changes to 
address the 2008 Pb NAAQS had not yet passed. Now, however, with the 
passage of time, the deadline for such NSR-related changes has passed, 
and we must evaluate the submitted NSR requirements against the now-
current NSR requirements. Thus, similar to the approach we are taking 
for PM2.5, we find that the submitted NSR rules do not 
address the new rolling 3-month average Pb NAAQS (0.15 [micro]g/m\3\) 
and thus we cannot now fully approve the submitted NSR rules. See 73 FR 
66964, 67034-67041 (November 12, 2008). In response, the State 
Environmental Commission must revise the NSR rules to ensure protection 
of the Pb NAAQS in the issuance of permits for new or modified sources 
or EPA must promulgate a FIP within two years of final action.
    With respect to new or revised NAAQS for nitrogen dioxide and 
sulfur dioxide, and based on the promulgation dates of these new or 
revised NAAQS, the State still has additional time to amend its NSR 
rules to address the revised NAAQS for these pollutants, and thus we do 
not view the failure to update NAC 445B.22097 to address the 2010 1-
hour nitrogen dioxide standard and the 2010 1-hour sulfur dioxide 
standard as precluding approval of the submitted NSR rules at this 
time. See 75 FR 6474, at 6523-6525 (February 9, 2010) (NSR SIP 
revisions for the 1-hour nitrogen dioxide NAAQS are due on January 22, 
2013); and 75 FR 35520, at 35573-35580 (June 22, 2010) (NSR SIP 
revisions for the 1-hour sulfur dioxide NAAQS are due on June 2, 2013). 
We encourage the SEC to make any necessary revisions to the NSR rules 
to address these revised NAAQS, and we encourage NDEP to adopt and 
submit the revised NSR rules as a SIP revision prior to the upcoming 
deadlines.
3. Conclusion
    For the reasons stated above, we find that the State has adequately 
addressed all of the previously-identified deficiencies in the NSR 
rules but new deficiencies related to the new or revised 
PM2.5 and Pb NAAQS prevent us from proposing a full approval 
of the rules. Therefore, we are proposing a limited approval and 
limited disapproval of the submitted NSR rules. We do so based also on 
our finding that, while the rules do not meet all of the applicable 
requirements, the rules would represent an overall strengthening of SIP 
by clarifying and enhancing the NSR permitting requirements.

III. Public Comment and Proposed Action

    Pursuant to section 110(k) of the Clean Air Act, and for the 
reasons provided above, EPA is proposing a limited approval and limited 
disapproval of revisions to the Nevada SIP that govern applications 
for, and issuance of, permits for stationary sources under the 
jurisdiction of the Nevada Division of Environmental Protection, 
excluding review and permitting of major sources and major 
modifications under parts C and D of title I of the Clean Air Act. 
Specifically, EPA is proposing a limited approval and limited 
disapproval of the new or amended sections of the Nevada Administrative 
Code (and one section of the Nevada Revised Statutes) listed in table 
1, above as a revision to the Nevada SIP.
    EPA is proposing this action because, although we find that the new 
or amended rules meet most of the applicable requirements for such NSR 
programs and that the SIP revisions improve the existing SIP, we have 
also found certain deficiencies that prevent full approval. Namely, the 
submitted NSR rules do not address the new or revised national ambient 
air quality standards for PM2.5 and lead (Pb) and must be 
revised accordingly.
    The intended effect of this limited approval and limited 
disapproval action is to update the applicable state implementation 
plan with current State rules with respect to permitting,\12\ and to 
set the stage for remedying deficiencies in the permitting rules with 
respect to new or revised national ambient air quality standards for 
PM2.5 and Pb. If finalized as proposed, this limited 
approval action would not trigger mandatory sanctions under section 179 
of the Clean Air Act because sanctions apply to nonattainment areas and 
no areas within the State of Nevada have been designated as 
nonattainment for the national PM2.5 or Pb standards. 
However, this limited disapproval action would trigger an obligation on 
EPA to promulgate a Federal Implementation Plan unless the State of 
Nevada corrects the deficiencies, and EPA approves the related plan 
revisions within two years of the final action.
---------------------------------------------------------------------------

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

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

IV. Statutory and Executive Order Reviews

A. Executive Order 12988, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 128665, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

[[Page 38565]]

C. Regulatory Reduction Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals or disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because this proposed limited approval/
limited disapproval action does not create any new requirements, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities. Moreover, due to the nature of 
the Federal-State relationship under the Clean Air Act, preparation of 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of State action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co., v. 
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the limited approval/limited disapproval 
action proposed does not include a Federal mandate that may result in 
estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector. This 
Federal action proposed to approve and disapprove pre-existing 
requirements under State or local law, and imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely proposes to approve and disapprove a State rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, the requirements of section 6 of the Executive Order do not 
apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it proposes to 
approve and disapprove a State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs

[[Page 38566]]

federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed rulemaking. In reviewing SIP submissions, 
EPA's role is to approve or disapprove state choices, based on the 
criteria of the Clean Air Act. Accordingly, this action merely proposes 
a limited approval/limited disapproval of certain State requirements 
for inclusion into the SIP under section 110 and subchapter I, part D 
of the Clean Air Act and will not in-and-of itself create any new 
requirements. Accordingly, it does not provide EPA with the 
discretionary authority to address, as appropriate, disproportionate 
human health or environmental effects, using practicable and legally 
permissible methods, under Executive Order 12898.

List of Subjects in 40 CFR Part 52

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

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

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