Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 38557 

1We note that the stationary source permitting 

rules that are the subject of this proposed 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. 

120, 121, 122, 123, 124, 125, 126, 127, 

128, 129, and 130’’. 

[FR Doc. C1–2012–15070 Filed 6–27–12; 8:45 am] 

BILLING CODE 1505–01–D 

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. 

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 


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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

Submitted rule Title Adoption date Submittal 

date 

NAC 445B.003 ......................... ‘‘Adjacent properties’’ defined ................................................................ 11/03/93 ....................... 01/24/11 

NAC 445B.0035 ....................... ‘‘Administrative revision to a Class I operating permit’’ defined ............ 08/19/04 ....................... 01/24/11 

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’’ defined .............................................. 10/03/95 ....................... 01/24/11 

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’’ defined ..................................... 11/03/93 ....................... 01/24/11 

NAC 445B.082 ......................... ‘‘General permit’’ defined ........................................................................ 10/03/95 ....................... 01/24/11 

NAC 445B.083 ......................... ‘‘Good engineering practice stack height’’ defined ................................ 10/04/05 ....................... 01/24/11 

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’’ defined ............................................. 06/17/10 ....................... 01/24/11 

NAC 445B.138 ......................... ‘‘Potential to emit’’ defined ..................................................................... 10/05/10 ....................... 01/24/11 

NAC 445B.142 ......................... ‘‘Prevention of significant deterioration of air quality’’ defined ............... 11/03/93 ....................... 01/24/11 

NAC 445B.147 ......................... ‘‘Program’’ defined .................................................................................. 11/03/93 ....................... 01/24/11 

NAC 445B.154 ......................... ‘‘Renewal of an operating permit’’ defined ............................................. 11/03/93 ....................... 01/24/11 

NAC 445B.156 ......................... ‘‘Responsible official’’ defined ................................................................ 06/17/10 ....................... 01/24/11 

NAC 445B.157 ......................... ‘‘Revision of an operating permit’’ defined ............................................. 08/19/04 ....................... 01/24/11 

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; exception; restriction on 

transfers.

06/17/10 ....................... 01/24/11 

NAC 445B.287(2) .................... [Provision addressing the operating permit requirements for certain 

types of Class I sources].

06/17/10 ....................... 05/21/12 

NAC 445B.288 ......................... Operating permits: Exemptions from requirements; insignificant activities.03/18/08 ....................... 01/24/11 

NAC 445B.295 ......................... Application: General requirements ......................................................... 09/06/06 ....................... 01/24/11 

NAC 445B.297 ......................... Application: Submission; certification; additional information ................ 03/08/06 ....................... 01/24/11 

NAC 445B.298 ......................... Application: Official date of submittal ..................................................... 06/17/10 ....................... 01/24/11 

NAC 445B.305 ......................... Operating permits: Imposition of more stringent standards for emissions.06/17/10 ....................... 01/24/11 

NAC 445B.308 ......................... Prerequisites and conditions for issuance of certain operating permits; 

compliance with applicable state implementation plan.

03/18/08 ....................... 01/24/11 

NAC 445B.310 ......................... Environmental evaluation: Applicable sources and other subjects; exemption.09/06/06 ....................... 01/24/11 

NAC 445B.311 ......................... Environmental evaluation: Contents; consideration of good engineering practice stack height.10/05/10 ....................... 01/24/11 

NAC 445B.313 ......................... Method for determining heat input: Class I sources .............................. 10/05/10 ....................... 01/24/11 

NAC 445B.3135 ....................... Method for determining heat input: Class II sources ............................. 11/19/02 ....................... 01/24/11 

NAC 445B.314 ......................... Method for determining heat input: Class III sources ............................ 11/19/02 ....................... 01/24/11 


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TABLE 1—SUBMITTED RULES (AND STATUTORY DEFINITION) GOVERNING NSR FOR STATIONARY SOURCES UNDER NDEP 

JURISDICTION—Continued 

Submitted rule Title Adoption date Submittal 

date 

NAC 445B.315 ......................... Contents of operating permits: Exception for operating permits to construct; required conditions.03/08/06 ....................... 01/24/11 

NAC 445B.318 ......................... Operating permits: Requirement for each source; form of application; 

issuance or denial; posting.

03/08/06 ....................... 01/24/11 

NAC 445B.319 ......................... Operating permits: Administrative amendment ...................................... 08/19/04 ....................... 01/24/11 

NAC 445B.325 ......................... Operating permits: Termination, reopening and revision, revision, or 

revocation and reissuance.

06/17/10 ....................... 01/24/11 

NAC 445B.331 ......................... Request for change of location of emission unit .................................... 09/06/06 ....................... 01/24/11 

NAC 445B.3361 ....................... General requirements ............................................................................. 06/17/10 ....................... 01/24/11 

NAC 445B.3363 ....................... Operating permit to construct: Application ............................................. 12/09/09 ....................... 01/24/11 

NAC 445B.33637 ..................... Operating permit to construct for approval of plantwide applicability 

limitation: Application.

08/19/04 ....................... 01/24/11 

NAC 445B.3364 ....................... Operating permit to construct: Action by Director on application; notice; public comment and hearing.12/09/09 ....................... 01/24/11 

NAC 445B.3365 ....................... Operating permit to construct: Contents; noncompliance with conditions.03/08/06 ....................... 01/24/11 

NAC 445B.33656 ..................... Operating permit to construct for approval of plantwide applicability 

limitation: Contents; noncompliance with conditions.

03/08/06 ....................... 01/24/11 

NAC 445B.3366 ....................... Expiration and extension of operating permit to construct; expiration 

and renewal of plantwide applicability limitation.

09/06/06 ....................... 01/24/11 

NAC 445B.3368 ....................... Additional requirements for application; exception ................................ 12/09/09 ....................... 01/24/11 

NAC 445B.3375 ....................... Class I–B application: Filing requirement ............................................... 09/06/06 ....................... 01/24/11 

NAC 445B.3395 ....................... Action by Director on application; notice; public comment and hearing; 

objection by Administrator; expiration of permit.

03/18/08 ....................... 01/24/11 

NAC 445B.340 ......................... Prerequisites to issuance, revision or renewal of permit ....................... 03/18/08 ....................... 01/24/11 

NAC 445B.342 ......................... Certain changes authorized without revision of permit; notification of 

authorized changes.

10/04/05 ....................... 01/24/11 

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 incorporate conditions of certain 

permits to construct.

09/06/06 ....................... 01/24/11 

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; notice; public comment and hearing; 

expiration of permit.

10/05/11 ....................... 11/09/11 

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; expiration of permit .......................... 09/06/06 ....................... 01/24/11 

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 mid1980’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. 


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2NDEP’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). 

3CAA 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. 

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 the issuance of either a registration certificate or an 

operating permit can be obtained from the Director.’’].

43 FR 1341 (January 9, 1978). 

NAC 445.704—Registration certificates and operating permits required ............................................................. 49 FR 11626 (March 27, 1984). 

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; application; fee; issuance, denial; expiration .................. 49 FR 11626 (March 27, 1984). 

NAC 445.712—Operating permits: Prerequisite; application; fee; issuance, denial; posting ............................... 49 FR 11626 (March 27, 1984). 

NAC 445.713—Operating permits: Renewal ......................................................................................................... 49 FR 11626 (March 27, 1984). 

NAC 445.714—Operating permits: Replacement of lost or damaged permits ..................................................... 49 FR 11626 (March 27, 1984). 

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 of New Sources’’), subsection 13.1.3(1) ................... 46 FR 21758 (April 14, 1981). 

NAQR article 13.1—(‘‘General Provisions for the Review of New Sources’’), subsections 13.1.4, 13.1.5, 

13.1.6, and 13.1.7.

40 FR 13306 (March 26, 1975). 

NAQR article 13.2—[applicability thresholds for environmental evaluations (EEs)], subsections 13.2.3 and 

13.2.4.

47 FR 27070 (June 23, 1982). 

NAQR article 13.3—[content requirements for EEs], subsection 13.3.1, 13.3.1.1, 13.3.1.22 .............................. 47 FR 27070 (June 23, 1982). 

D. What is the purpose of this proposed 

rule? 

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. 

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 PriorSubmitted 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 


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4EPA 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 nonexempt 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. 

5Nevada’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. 

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. 

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. 

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 EPAapproved 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 


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6While 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). 

7As 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. 

8NDEP 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. 

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 welldefined 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. 

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).’’ 

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. 

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 


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9See 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. 

10EPA 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). 

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. 

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-bypoint 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 previouslyidentified 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. 

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’’ 


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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. 

12Final approval of the rules (and statutory 

provision) in table 1 would supersede the rules 

listed in table 2, above, in the existing Nevada SIP. 

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 mg/m3) or annual 

(15 mg/m3) 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 nowcurrent 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. 

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 NSRrelated 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 mg/m3) 

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. 

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). 


rmajette on DSK2TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 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 costeffective 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 


rmajette on DSK2TPTVN1PROD with PROPOSALS
38566 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Proposed Rules 

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 inand-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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA—R06–RCRA–2012–0367; FRL–9692–6] 

Louisiana: Final Authorization of State 

Hazardous Waste Management 

Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The State of Louisiana has 

applied to EPA for Final authorization 

of the changes to its hazardous waste 

program under the Resource 

Conservation and Recovery Act (RCRA). 

EPA proposes to grant Final 

authorization to the State of Louisiana. 

In the ‘‘Rules and Regulations’’ section 

of this Federal Register, EPA is 

authorizing the changes by an 

immediate final rule. EPA did not make 

a proposal prior to the immediate final 

rule because we believe this action is 

not controversial and do not expect 

comments that oppose it. We have 

explained the reasons for this 

authorization in the preamble to the 

immediate final rule. Unless we get 

written comments which oppose this 

authorization during the comment 

period, the immediate final rule will 

become effective on the date it 

establishes, and we will not take further 

action on this proposal. If we receive 

comments that oppose this action, we 

will withdraw the immediate final rule 

and it will not take effect. We will then 

respond to public comments in a later 

final rule based on this proposal. You 

may not have another opportunity for 

comment. If you want to comment on 

this action, you must do so at this time. 

DATES: Send your written comments by 

July 30, 2012. 

ADDRESSES: Send written comments to 

Alima Patterson, Region 6, Regional 

Authorization Coordinator, (6PD–O), 

Multimedia Planning and Permitting 

Division, at the address shown below. 

You can examine copies of the materials 

submitted by the State of Louisiana 

during normal business hours at the 

following locations: EPA Region 6, 1445 

Ross Avenue, Dallas, Texas 75202–2733, 

phone number (214) 665–6444; or 

Louisiana Department of Environmental 

Quality, 602 N. Fifth Street, Baton 

Rouge, Louisiana 70884–2178, phone 

number (225) 219–3559. Comments may 

also be submitted electronically or 

through hand delivery/courier; please 

follow the detailed instructions in the 

ADDRESSES section of the immediate 

final rule which is located in the Rules 

section of this Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Alima Patterson (214) 665–8533. 

SUPPLEMENTARY INFORMATION: For 

additional information, please see the 

immediate final rule published in the 

‘‘Rules and Regulations’’ section in this 

issue of the Federal Register. 

Dated: June 15, 2012. 

Samuel Coleman, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2012–15871 Filed 6–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 120307159–2155–01] 

RIN 0648–BB99 

Fisheries of the Northeastern United 

States; Atlantic Mackerel, Squid, and 

Butterfish Fisheries; Framework 

Adjustment 6 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule, request for 

comments. 

SUMMARY: NMFS proposes a change in 

the Mid-Atlantic Fishery Management 

Council’s risk policy regarding stocks 

without an overfishing limit. The 

current risk policy does not allow 

increases of the acceptable biological 

catch for stocks that do not have an 

overfishing limit derived from the stock 

assessment. The modification will allow 

increases of the acceptable biological 

catch for stocks that have stable or 

increasing trends in abundance, and for 

which there is robust scientific 

information to suggest that an increased 

acceptable biological catch will not lead 

to overfishing. 

DATES: Public comments must be 

received no later than 5 p.m., eastern 

standard time, on July 30, 2012. 

ADDRESSES: Copies of supporting 

documents used by the Mid-Atlantic 

Fishery Management Council (Council), 

including the Supplemental 

Environmental Assessment (EA) and 

Regulatory Impact Review (RIR)/Initial 

Regulatory Flexibility Analysis (IRFA) 

for Framework Adjustment 6, are 

available from: Dr. Christopher M. 

Moore, Executive Director, Mid-Atlantic 

Fishery Management Council, Suite 201, 

800 N. State Street, Dover, DE 19901. 

The EA/RIR/IRFA is accessible via the 

Internet at http://www.nero.noaa.gov. 

You may submit comments, identified 

by NOAA–NMFS–2012–0110, by any 

one of the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal 

www.regulations.gov. To submit 

comments via the e-Rulemaking Portal, 

first click the ‘‘submit a comment’’ icon, 

then enter NOAA–NMFS–2012–0110 in 

the keyword search. Locate the 

document you wish to comment on 

from the resulting list and click on the 


rmajette on DSK2TPTVN1PROD with PROPOSALS