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

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

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

2.2.5 Growth Rebates volume in the previous twelve-month Growth Rebate amount will be

period will not be eligible for a Growth calculated by multiplying the difference

Beginning June 1, 2009, and each June Rebate.) between the previous twelve-month

1 thereafter, shippers who qualify for a For shippers meeting all of the DDU volume and the most recent

Loyalty Rebate and who increase their eligibility criteria, the percentage level twelve-month DDU volume by the

Parcel Select volumes in the most recent of the Growth Rebate is based on their average postage per DDU piece over the

twelve-month (June 1-May 31) period growth percentage and their total Parcel current twelve-month period, times the

(compared with the previous twelve- Select revenue in the twelve-month applicable percentage shown in Exhibit

month period) by more than 10 percent period, as shown in Exhibit 2.2.5. 2.2.5.

will qualify for a Growth Rebate. The Growth Rebate is applied only to

(Shippers who had zero Parcel Select qualified incremental DDU volame. The Exhibit 2.2.5 Growth Rebate

Toalpacl elc pstget qalf >$5M (pret percent) >$25M (ercent >$50M (percent) >$l oom (percent) >$300M (percent) >$500M

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

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

>20 .......................................................................................................

4 6 8 10 12 12

> 30 .......................................................................................................

6 8 10 12 14 14

At the discretion of the USPS,

volumes from the following 3-digit ZIP

Codes may be exempt from the Growth

Rebates due to delivery conditions: 100-

102, 104, 107, 108, 111-113. Growth

Rebates may not apply to volume

growth as a result of mergers or

acquisitions. Exclusions will be

administered on a case-by-case basis. * * * * *

500 Additional Services * * * * *

507 Mailer Services * * * * *

13.0 Parcel Return Service

* * * * *

[Revise heading by replacing "Rates"

with "Prices"]

13.3 Prices

13.3.1 Parcel Return Service-Return

Delivery Unit

[Revise text in 3.1 as follows:]

Return Delivery Unit parcel prices are

based on weight as identified in Exhibit

13.3.2 and 13.3.3. Parcels that measure

more than 108 inches but not more than

130 inches in combined length and girth

must pay the oversized price. RDU

postage will be determined by the

average weight of pieces retrieved from

the RBMC or through a reverse manifest

service agreement.

[Revise the heading of Exhibit 13.3.2

to read as follows:]

Exhibit 13.3.2 Parcel Return ServiceReturn Machinable

[Insert chart]

[Revise the heading of Exhibit 13.3.3

to read as follows:]

Exhibit 13.3.3 Parcel Return ServiceNonmachinable

[Insert chart]

700 Special Standards

703 Nonprofit Standard Mail and

Other Unique Eligibility

* *. * * *

2.0 Overseas Military Mail

2.1 Basic Standards

* * * * *

2.1.2 APO/FPO Priority Mail Flat-Rate

Boxes

[Revise text by adding reference to

commercial prices at the end of the

second paragraph.]

* * * SeeExhibit 1.2b, Priority Mail

Prices-Commercial, for the comnercial

base price.

We will publish an appropriate

amendment to 39 CFR 111.3.

Neva R. Watson,

Attorney, Legislative.

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

BILLING CODE 7710-12-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R09-OAR-2007-0165; FRL-8543-6]

Approval and Promulgation of

Implementation Plans; Revisions to the

Nevada State Implementation Plan;

Stationary Source Permits

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to

approve certain revisions to the

applicable state implementation plan for

the State of Nevada and to disapprove

certain other revisions. These revisions

involve State rules governing

applications for, and issuance of,

permits for stationary sources, but not

including review and permitting of

major sources and major modifications

under parts C and D of title I of the

Clean Air Act. These revisions involve

submittal of certain new or amended

State rules and requests by the State for

rescission of certain existing rules from

the state implementation plan. EPA is

taking this action under the Clean Air

Act obligation to take action on State

submittals of revisions to state

implementation plans. The intended

effect is to update the applicable state

implementation plan with current State

rules with respect to permitting, where

consistent with the Clean Air Act.

DATES: Effective Date: This rule is

effective on May 16, 2008.

HeinOnline -- 73 Fed. Reg. 20536 2008
Federal Register/VoI. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations

ADDRESSES: EPA has established docket

number EPA-R09-OAR-2007-0165 for

this action. The index to thie docket is

available electronically at http:!!

www.regulations.gov and in hard copy

at EPA Region IX, 75 Hawthorne Street,

San Francisco, California. While all

documents in the docket are listed in

the index, some information may be

publicly available only at the hard copy

location (e.g., copyrighted material), and some may not be publicly available in

either location (e.g., Confidential

Business Information). To inspect the

hard copy materials, please schedule an

appointment during normal business

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Laura Yannayon, EPA Region IX, (415)

972-3534, yannayon.laura@epa.gov.

SUPPLEMENTARY INFORMATION:

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

Table of-Contents

I. Proposed Action

II. NDEP's August 20, 2007 SIP Revision

Submittal

III. Public Comments and EPA Responses

A. Submitted Rules or Rescissions for

Which EPA Has Yet to Propose Action

B. Submitted Rules Found to be Separable

From Rest of Permitting Program

C. Rules Comprising the Submitted Permit

Program

1. Definitions

2. General Provisions

3. Operating Permits Generally

4. Class I Operating Permits

5. Class II Operating Permits

6. Other Issues

D. Rescissions of Permitting-Related Rules

From Applicable SIP

IV. EPA Action

V. Statutory and Executive Order Reviews

I. Proposed Action

. On April 17, 2007 (72 FR 19144), EPA

proposed several actions in connection

with certain revisions to the Nevada -

State Implementation Plan (SIP)

submitfed by the Nevada Division of

Environmental Protection (NDEP) under

the Clean Air Act (CAA or "Act"). Our

April 17, 2007 proposal covers the State

rules that were included in NDEP's

January 12, 2006 and December 8, 2006

SIP revision submittals and that govern

applications for, and issuance of,

permits for stationary sources. We also

proposed action on the State's requests

for rescission of certain permit-related

rules in the existing SIP.' Tables 1, 2,

and 3 below list the relevant submitted

rules and rescission requests covered by

our April 17, 2007 proposed rule.

Table 1 lists the submitted rules that,

while related to permitting, are

separable from the rest of the

permitting-related rules and thus qualify

for action independent of our action on

the bulk of the permitting-related rules.

Table 2 lists the submitted set of rules

that comprise the bulk of NDEP's

stationary source permitting program

(excluding review under parts C and D

of the title I of the CAA). Table 3 lists

the permitting-related rules (in the

existing SIP) for which NDEP has

requested rescission.

TABLE 1.-SUBMITTED RULES THAT ARE SEPARABLE FROM THE REST OF THE PERMITTING-RELATED RULES

Submitted rule Title Adoption Submittal April 17, 2007 date date proposed action

NAG 445B.021 ......................... "Area source" defined ............................................................... 11/03/93. 01/12/06 Disapproval. NAC 445B.028 ......................... "Best available control technology" defined .............................. 03/26/96 01/12/06 Disapproval. NAC 445B.178 ......................... "Source reduction" defined ......... .................... 03/03/94 01/12/06 Disapproval. NAC 445B.196 ......................... 'Toxic regulated air pollutant" defined ...................................... 10/03/95 01/12/06 Disapproval. NAG 445B.22083 ..................... Construction, major modification or relocation of plants to gen- 10/04/05 01/12/06 Approval.

erate electricity using steam produced by burning of fossil

fuels.

NAC 445B.250 ......................... Notification of planned construction or reconstruction .............. 10/04/05 01/12/06 Approval. NAC 445B.252 ......................... Testing and sampling ................................................................. 09/18/03 01/12/06 Approval.

In our April 17, 2007 action, we

proposed to approve three, and to

disapprove four, of the submitted rules

we considered separable from the rest of

the permitting-related program (see

table 1). We proposed approval of

Nevada Administrative Code (NAC)

445B.22083, 445B.250, and 445B.252

because they strengthen the SIP and

otherwise meet all applicable

requirements. We proposed disapproval

of NAC 445B.021, 445B.178, and

445B.196 because they define terms that

'We note that the stationary source permitting

rules that are the subject of this final rule are not

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

sources or major modifications under part C

("Prevention of Significant Deterioration of air

quality") or part D ("Plan requirements for

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

Of the 100+ permit-related rules or statutes that were submitted by NDEP for approval or for

rescission, we are taking final action today on all

but~two (but, also, see response to comment #1 for

are not used in any of the other

submitted rules or in any of the rules of

the existing SIP and thus are

unnecessary. We proposed to

disapprove NAC 445B.028 ("Best

Available Control Technology" defined)

because it is not used in any of the other

submitted rules and is used only in an

existing SIP rule for which we proposed

to grant NDEP's rescission request. 2

Table 2 lists the subuiitted rules

governing application for, and issuance

of, permits for stationary sources under

two rules inadvertently left out of our April 17,

2007 proposal). We are deferring action on the

State's requests for rescission of rule 25 of general

order number 3 of the Nevada Public Service

Commission and Nevada Revised Statutes (NRS)

704.820 to 704.900-Construction of utility

facilities: utility environmental protection act. Rule

25 of general order number 3 and NRS 704.820-900

relate to new source review under part D, and as

such, we will take action on the State's related

rescissions after the State submits, and we take

action on, a revised "nonattainment" new source

NDEP jurisdiction in the State of

Nevada, excluding the State's rules (yet

to be submitted) for review and

permitting of major sources and major

modifications under parts C and D of

title I of the CAA. In our review of these

submitted rules, we identified a number

of deficiencies that lead us to conclude

that the submitted rules do not comply

with the requirements of section 110

and 40 CFR part 51, sections 51.160

through 51.164 and that formed the

basis for our proposed disapproval. -

review program under part D of title I of the Clean

Air Act.

2"Best Available Control Technology" (BACT) is

the control technology requirement under EPA's

Prevention of Significant Deterioration (PSD)

regulations for pre-construction review and

permitting of new major sources and major

modifications in attainment or unclassifiable areas,

and we would expect this definition to be re- submitted by NDEP when they submit their rules

implementing PSD for approval by EPA as a SIP

revision.

I

20537

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

UNDER NDEP JURISDICTION

Submitted rle Title Adoption Submittal date date

NAC 445B.003 ...................................

NAC 445B.0035 .................................

NAC 445B.007 ...................................

NAC 445B.013 ...................................

NAC 445B.014 ...................................

NAC 445B.016 ...................................

NAC 445B.019 ...................................

NAC 445B.035 ...................................

NAC 445B.036 ...................................

NAC 445B.037 ...................................

NAC 445B.038 ....................

NAC 445B.044 ...................................

NAC 445B.046 ...................................

Sec. 2 of R096-05 ............................

Sec. 3 of R096-05 .............................

NAC 445B.066 ...................................

NAC 445B.068 ..................................

NAC 4456.069 ..................................

NAC 4456.070 ...................................

NAC 445B.082 ...................................

Sec. 4 of R096-05 .............................

NAC 445B.087 .: .................................

NAC 445B.093 ...................................

NAC 4451.094 ..................................

NAC 4456.0945 .................................

NAC 4456.099 ...................................

NAC 445B.104 ...................................

Sec. 5 of R096-05 ........................

NAC 445B.108 ...................................

NAC 445B.117 ...................................

NAC 445B.123 ...................................

NAC 445B.124 ...................................

NAC 445B.1345 .................................

NAC 4456.138 ...................................

NAC 4456.142 ...................................

NAC 4456.147 ...................................

NAC 445B. 154 ...................................

NAC 4456.156 ...................................

NAC 4456.157 ...................................

NAC 445B.179 ...................................

NAC 445B.187 ...................................

NAC 445B. 194 ...................................

NAC 445B.287 ...................................

NAC 445B.288

NAC 445B.295

NAC 445B.29T

NAC 445B.298

NAC 4451.305

NAC 4456.308

NAC 445B.310 ...................................

NAC 445B.311 .......................

NAC 445B.313 ...................................

NAC 445B.3135 .................................

NAC 4456.314 ...................................

NAC 445B.315 ....................

NAC 445B.318 ...................................

NAC 445B.319 ...................................

NAC 445B.325 ...................................

NAC 4451.326 ...................................

NAC 445B.331 ...................................

NAC 445B.3361 .................................

NAC 445B.3363 .................................

"Adjacent properties" defined .........................................................................

"Administrative revision to a Class I operating permit" defined ....................

"Affected state" defined ...........................................................................

"Allowable emissions" defined .......................................................................

"Alteration" defined .........................................................................................

"Alternative operating scenarios" defined ......................................................

"Applicable requirements" defined .................................................................

"Class I-B application" defined ......................................................................

"Class I source" defined .................................................................................

"Class II source" defined ................................................................................

"Class III source" defined ...............................................................................

"Construction" defined ....................................................................................

"Contiguous property" defined .......................................................................

"Dispersion technique" defined ...............................................................

"Excessive concentration" defined .................................................................

"Existing stationary source" defined ..............................................................

"Facility" defined .............................................................................................

"Federally enforceable" defined .....................................................................

"Federally enforceable emissions cap" defined .............................................

"General permit" defined ................................................................................

"Good engineering practice stack height" defined .........................................

"Increment" defined ........................................................................................

"Major modification" defined ..........................................................................

"Major source" defined ...................................................................................

"Major stationary source" defined ............................................................

"Modification" defined .....................................................................................

"Motor vehicle" defined ..........................................

"Nearby" defined ............................................................................................

"New stationary source" defined .............................................................

"Offset" defined ............................................................................................

"Operating permit" defined ..................................... ..................................... "Operating perm it to construct" defined ...................................................

"Plantwide applicability limitation" defined .....................................................

"Potential to emit" defined ..............................................................................

"Prevention of significant deterioration of air quality" defined .......................

"Program" defined ...................................................................................

"Renewal of an operating permit" defined .............................

"Responsible official" defined .....................................

"Revision of an operating permit" defined ..................... : ........................

"Special mobile equipment" defined ..............................................................

"Stationary source" defined ............. .........................................

"Temporary source" defined ..........................................................................

Operating permits: General requirements; exception; restriction on transfers.

Operating permits: Exemptions from requirements; insignificant activities ....

Application: General requirements .................................................................

Application: Submission of application and supplementary or corrected information.

Application: Official date of submittal ............................................ .....

Operating permits: Imposition of more stringent standards for emissions .... Prerequisites and conditions for issuance of operating permits: Environmental evaluation; compliance with control strategy; exemption from environmental evaluation.

Environmental evaluation: Applicable sources ...............................................

Environmental evaluation: Required information ............................................ Method for determining heat input: Class I sources ......................................

Method for determining heat input: Class II sources .....................................

Method for determining heat input: Class III sources ....................................

Contents of operating permits: Exception for operating permits to construct;

required conditions.

Operating permits: Separate permit required for each source; form of application; issuance or denial of permit; posting of permit.

Operating perm its: Adm inistrative amendment ..............................................

Operating permits: Termination, reopening and revision, revision, or rev- ocation and reissuance.

Operating permits: Assertion of emergency as affirmative defense to action

for noncompliance.

Request for change of location of emission unit ............................................

General requirements .....................................................................................

Operating permit to construct Application .....................................................

11/03/93

08/19/04

11/03/93

10/04/05

10/03/95

10/03/95

01/22/98

10/03/95

08/19/04

09/18/01

09/18/01

10/04/05

09/16/76

10/04/05

10/04/05

10/03/95

10/03/95

11/03/93

11/03/93

10/03/95

10/04/05

11/03/93

08/19/04

05/10/01

08/19/04

10/03/95

05/10/01

10/04/05

10/03/95

10/03/95

11/19/02

11/19/02

08/19/04

03/26/98

11/03/93

11/03/93

11/03/93

11/03/93

08/19/04

05/10/01

05/10/01

05/10/01

08/19/04

05/10/01

09/06/06

08/19/04

08/19/04

10/03/95

09/06/06

09/06/06

09/06/06

11/19/02

11/19/02

11/19/02

11/19/02

09/06/06

08/19/04

01/22/98

11/03/93

09/06/06

09/06/06

09/06/06

01/12/06

01/12/06

01/12/06

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01/12/06

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...................................

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............. .....................

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- TABLE 2.-SUBMI'TED RULES GOVERNING APPLICATION FOR, AND ISSUANCE OF, PERMITS FOR STATIONARY SOURCES

UNDER NDEP JURISDICTION-Continued

Submitted rule Title Adoption -Submittal

date date

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

tion: Application. NAC 445B.3364 ................................. Operating permit to construct: Review of application and determination of 09/06/06 12/08/06

completeness by director; notice.

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

NAC 445B.33656 ............................... Operating permit to construct for approval of plantwide applicability limita- 09/06/06 12/08/06

tion: Required conditions and information.

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

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

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

NAC 445B.3395 ................................. Review of application and determination of completeness by director, no- 09/06/06 12/08/06

tice; expiration of permit.

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

NAC 445B.342 ................................... Revision of permit: Exception when making certain changes; notification of 09/06/06 12/08/06

.changes.

NAC 445B.3425 ................................. Minor revision of permit ................................................... ............... 08/19/04 01/12/06

NAC 445B.344 ................. Significant revision of permit .................................................................

11/19/02 01/12/06

NAC 445B.3441 ................................. Administrative revision of permit to incorporate conditions of certain permits 09/06/06 12/08/06

to construct.

NAC 445B.3443 ................................. Renewal of permit ......................................................... 02/26/04 01/12/06

NAC 445B.3453 ................................. Application: General requirements .............................................................

11/19/02 01/12/06

NAC 445B.3457 ................................. Application: Determination of completeness by director ................................ 09/06/06 12/08/06

NAC 445B.346 ................................... Required contents of permit ..................................... 10/03/95 01/12/06

NAC 445B.3465 ................................ Application for revision ................................................................. 10/04/05 01/12/06

NAC 445B.3473 ................................. Renewal of permit .......................................................... 02/26/04 01/12/06

NAC 445B.3477 ................................. Class II general permit ....................... .................................... 11/19/02 01/12/06

NAC 445B.3485 ................................. Application: General requirements .............................................................

09/06/06 12/08/06

NAC 445B.3487 ................................. Application: Determination of completeness by director ................................ 09/06/06 12/08/06

NAC 445B.3489 ................................. Required content of permits ...................... : .................................................... 09/06/06 12/08/06

NAC 445B.3493 ................................. Application for revision ................................................................. 09/18/01 01/12/06

NAC 445B.3497 ................................. Renewal of permits ........................................................... 02/26/04 01/12/06

In our April 17, 2007 proposed action, we noted 10 specific deficiencies. First,

we found that certain submitted rules

use undefined terms, contain incorrect

citations, rely on rules or statutory

provisions that have not been submitted

for approval as part of the SIP, or

multiple versions of the same rule were included in the same submittal, and

thus are ambiguous.

Second, we concluded that the

definition of "potential to emit" in

submitted rule NAC 445B.138 must be

revised to require effective limits and to

include criteria by which a limit is

judged to be practicably enforceable by

NDEP.

Third, we found that NDEP's

stationary source program may not be as

.inclusive as required under the CAA

depending upon whether the exclusion

of "special mobile equipment" from the

definition of "stationary source" in

submitted rule NAC 445B.187 extends

to engines and vehicles that are not

considered to be "nonroad."

Fourth, we found that the method for

determining heat input for class I

sources in submitted rule NAC

445B.313 must be amended to require

that combustion sources make

applicability determinations based on

the maximum heat input.

Fifth, we concluded that NAC

445B.331 ("Request for change of

location of emission unit") must be

amended to limit its applicability to

location changes within the confines of

the existing stationary source at which

the emission unit is originally

permitted.

Sixth, we found that submitted rule

NAC 445B:3477 ("Class II general

permit") must be amended to identify

the requirements for general permits,

the public participation requirements

for issuing such permits, and the criteria

by which stationary sources may qualify

for such a permit.

Seventh, we found that submitted rule

NAC 445B.311 ("Environmental

evaluation: Required information")

allows for NDEP to authorize use of a modification or substitution of a model

specified in appendix W of 40 CFR part

51 without EPA approval and must be

amended accordingly to comply with 40

CFR 51.160(f).

Eighth, to comply with 40 CFR 51.161

("Public availability of information"),

we concluded that the relevant

submitted rules must be amended to

provide for adequate public review of

new or modified class II sources. Under

submitted rule NAC 445B.3457

("Application: Determination of

completeness by Director"), we noted

that NDEP may initiate public notice

and comment if, after review of an

application for a class II permit, NDEP

determines that the change to the

stationary source results in a significant

change in air quality at any location

where the public is present on a regular

basis. We found that such a provision

does not provide well-defined objective

criteria for determining when public

notice is required to meet the

requirements of 40 CFR 51.161.

With respect to the issue of public -

review of proposed permits, we found

that the submitted provisions for class I

sources are generally acceptable with

the exception of submitted rule NAC

445B.3364 ("Operating permit to

construct: Review of application and

determination of completeness by

director; notice"). Submitted rule NAC

445.3364 must be amended to

specifically require that copies of

NDEP's review and preliminary intent

to issue or deny a class I operating

permit be sent to the Washoe County

Health District or the Clark County

Department of Air Quality and

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Environmental Management for those

sources proposed to be constructed or

modified in Washoe County or Clark

County, respectively. Also, we found

that the rules must be amended to

provide for public participation for new

or modified sources of lead with

potential to emit greater than 5 tons per

year. See 40 CFR 51.100(k)(2) and 40

CFR 51.161(d).

Ninth, we found that the affirmative

defense provision in submitted rule

NAC 445B.326 is not approvable under

CAA section 110(a)(2) as written

because it could be applied to

technology-based emission limitations

approved into the SIP.

Lastly, while the submitted rules

include a specific prohibition on

approving a permit for any source where

the degree of emission limitation

required is affected by that amount of

the stack height as exceeds good

engineering practice stack height or any

other dispersion technique, we found

that the relevant provision (i.e.,

445B.308(3)) includes director's

discretion (* * * if "the Director

determines" * * *), which must be

removed in order for EPA to approve the

rules as meeting the requirements of 40

CFR 51.164.

Table 3 lists the permitting-related

rules in the existing SIP for which NDEP

has requested rescission and for which

we proposed action in our April 17,

2007 proposed rule. In our April 17,

2007 action, we proposed to approve

rescission requests for Nevada Air

Quality Regulations (NAQR) article

13.1.3(3) and NAC 445.706(2) and

proposed to disapprove the rescission

requests for NAQR articles 1.60 and 1.72

and NAC 445.715.

TABLE 3.-EXiSTING PERMITTING-RELATED SIP RULES FOR WHICH THE STATE HAS REQUESTED RESCISSION

Existing SIP rule Submittal

date Approval date and FR April 17, 2007

proposed action -

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

NAOR Article 1.72 .......................... Existing facility ................................ 12/10/76 08/21f78 at 43 FR 36932 ............... Disapproval. NAQR Article 13, subsection [BACT requirement in atainment 03/17/80 04/14/81 at 46 FR 21758 ............... Approval.

13.1.3(3). areas].

NAC 445.706(2) .............................. [payment of fees] ............................ 10/26/82 03/27/84 at 49 FR 11626 ............... Approval. NAC 445.715 .................................. Operation permits: revocation ........ 10/26/82 03/27/84 at 49 FR 11626 ............... Disapproval.

In our April 17, 2007 action, we

proposed approval of the rescission

request for NAQR article 13.1.3(3),

which applies a control technology

requirement defined by Best Available

Control Technology (BACT) to certain

new sources in attainment areas for the

following reasons:

& Air pollution permit programs

developed by States under section 110

of the Clean Air Act are not required to

impose a BACT requirement on new

sources in attainment areas so long as

the program is not intended to satisfy

part C of title I of the Act;

* Rescission of the SIP BACT

requirement would only act

prospectively and would not relax

emission limits in any existing permits;

; Rescission would not eliminate the

BACT requirement for all new sources

in Nevada given that BACT continues to

be a requirement for new major sources

and major modifications in areas, which

are designated as attainment or

unclassifiable, under EPA's Prevention

of Significant Deterioration (PSD)

regulations at 40 CFR 52.21 (see 40 CFR

52.1485); and

* We find no evidence to suggest that

Nevada is relying on the BACT

requirement in NAQR article 13.1.3(3)

to maintain the National Ambient Air

Quality Standards (NAAQS) in any area.

Thus, we concluded that rescission of

the BACT requirement in NAQR article

13.1.3(3) from the SIP would not

interfere with continued attainment of

the NAAQS and can therefore be

approved under CAA section 110(l).3

We also proposed approval of the

rescission request for NAC 445.706(2),

which relates to permit fees, because

permit fee rules are no longer required

for the NDEP portion of the Nevada SIP

under CAA section 110(a)(2)(L) given

our approval of NDEP's title V program

(and related fee requirements). We made

our proposed approval of the rescission

requests for NAQR article 13.1.3(3) and

NAC 445.706(2) contingent upon receipt

of documentation from NDEP of notice

and public hearing for repeal or rescission of these provisions as

required under CAA section 110(1) for

all SIP revisions.

In our April 17, 2007 action, we

-proposed disapproval of the rescission

request for NAQR article 1.60 because it

defines a term, "effective date," that is

relied upon by other terms in the

existing SIP that NDEP intends to retain,

such as "existing source" as defined in

NAQR article 1.73 and "new source" as

defined in NAQR article 1.114. We

found that the rescission requests for

NAQR article 1.72 and NAC 445.715

could otherwise be approved but for the

fact that we were proposing disapproval

of the submitted set of rules comprising

NDEP's current stationary source

permitting program (listed in table 2,

above). NAQR article 1.72 and NAC

3

CAA section 110(1) 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.

445.715 need to be retained in

connection with the stationary source

permitting program as approved in the

existing SIP, and thus we proposed to

disapprove their related rescission

requests at this time.

The Technical Support Document

(TSD) -(dated March 21, 2007) that we

prepared for our April 17, 2007

proposed rule provides more details

concerning our evaluation of each of the

rules listed in tables 1, 2, and 3 and our evaluation of the permitting program as

a whole.

II. NDEP's August 20, 2007 SIP

Revision Submittal

By letter dated-August 20, 2007,

NDEP submitted a supplement to the

SIP submittal dated January 12, 2006.

The August 20, 2007 supplemental SIP

submittal includes two statutory

provisions and 16 rules, as shown in

table 4, below.

The two statutory provisions, Nevada

Revised Statutes (NRS) 485.050 ("Motor

vehicle" defined) and NRS 482.123

("Special mobile equipment" defined),

are relied upon by one of the rules

submitted for approval and included in

our April 17, 2007 proposed rule, but

had not been submitted for approval

into the SIP themselves. We identified

their absence as a one of the deficiencies

in the submitted permitting program.

See 72 FR 19144, at 19148 (April 17,

2007).

The rules contained in NDEP's August

20, 2007 SIP submittal include.

codifications or recodifications of

previously submitted rules. Changes

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relative to the previously submitted supersede the previously submitted proposed rule, we are taking final action

rules include additional historical notes, rules, and because, in substance, the on them in today's notice without

updated internal rule references, revised rules submitted on August 20, 2007 are initiating a new comment period. titles, and minor edits. We consider the the same as the corresponding rules that

rules submitted on August 20, 2007 to were evaluated in our April 17, 2007

TABLE 4.-PROVISIONS INCLUDED IN NDEP's AUGUST 20, 2007 SIP REVISION SUBMITTAL

Submitted statutory provision Submittal

or rule Title Adoption date date

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

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

NAC 445B.013 .......................... "Allowable em issions" defined .................................................. 10/04/05 .................................

08/20/07

NAC 445B.036 .......................... "Class I source" defined .......................................................... 08/19/04 .................................. 08/20/07

NAC 445B.044 .......................... "Construction" defined ............................................................... 10/04/05 .................................

08/20/07

NAC 445B.054 .......................... "Dispersion technique"defined .................................................. 10/04/05 .................................

08/20/07

NAC 4451.064 .......................... "Excessive concentration" defined ............................................ 10/04/05 .................................

08/20/07

NAC 445B.083 ............. "Good engineering practice stack height" defined ............. * ...... 10/04/05 .................................

08/20/07

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

NAC 445B.157 .......................... "Revision of an operating permit" defined ................................ 08/19/04 .................................

08/20/07

NAC 445B.22083 ...................... Construction, major modification or relocation of plants to gen- 10/04/05 .................................

08/20/07

erate electricity using steam produced by burning of fossil

fuels.

NAC 445B.250 ............. Notification of Director: Construction, reconstruction and initial 10/04/05 .................................

08/20/07

start-up; demonstration of continuous monitoring system

performance. NAC 445B.287(1), (3), and (4) Operating permits: General requirements; exception; restric- 09/06/06 .................................

08/20/07

tions on transfers.

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

08/20/07

NAC 445B.315 ............. Contents of operating permits: Exception for operating permits 03/08/06 ................................. 08/20/07

to construct; required conditions.

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

NAC 4458.342 ............. Certain changes authorized without revision of permit; notifica- 10/04/05 ................................. 08/20/07

tion of authorized changes.

NAC 4458:3465 ........................ Application for revision ............................................................... 10/04/05 ................................... 08/20/07

III. Public Comments and EPA

Responses

EPA's proposed action provided a 60-

day public comment period. See 72 FR

19144 (April 17, 2007). At NDEP's

request, we extended the comment

period by another 60 days. See 72 FR

31781 (June 8, 2007). During the

comment period, we received comments

from Michael Elges, Chief, NDEP Bureau

of Air Pollution Control, by letter dated

August 17, 2007. In addition to the

comments themselves, NDEP's August

17, 2007 letter includes four

attachments: Attachment A (Draft

Proposed Regulation of the State

Environmental Commission),

attachment B ("ASIP Submittal August

17, 2007"), attachment C ("Clean Copy

of the December 8, 2006 ASIP

Submittal"), and attachment D

("Commitment to Comply with 40 CFR

51.161(f)").

In the following paragraphs, we

summarize the comments and provide

our responses thereto. Unless otherwise

noted, references in the comments and

responses listed below to a TSD relate

to the TSD (dated March 21, 2007) that

we prepared for our April 17, 2007

proposed rule.

A. Submitted Rules or Rescissions for

Which EPA Has Yet To Propose Action

Comment 1: NDEP recounts various

SIP revisions submitted as part of the

State's efforts in recent years to update a significant portion of the Nevada SIP,

including SIP revisions submitted on February 16, 2005, January 6, 2006, and

December 8, 2006, and notes that, as of

the April 17, 2007 proposed action, the

EPA had acted, or proposed action, on

every submitted provision and request

for rescission with the following

exceptions: NAC 445B.200 and

445B.227, which have not been acted

on; and the request to rescind existing

SIP provision NAC 445.694.

Response 1: We agree with this

comment, and discuss our plans for the

two submitted rules and one rescission

request cited -in the comment in the

following paragraphs.

Submitted rule NAC 445B.200

("Violation" defined) would update

existing SIP rule NAC 445.649

("Violation" defined), which we

approved on March 27, 1984 at 49 FR

11626, and is used in connection.with

the permitting program. NAC 445B.200

is acceptable but is not separable from

the rest of the permitting program. Thus,

it should have been included in the set

of rules comprising the permitting

program for which we proposed

disapproval in our April 17, 2007

action. We anticipate that we will

propose approval of this definition at

such time as we propose to approve an amended, and re-submitted, permitting

program.

Submitted rule NAC 445B.227

("Prohibited conduct: Operation of

source without required equipment;

removal or modification of required

equipment: modification of required

procedure") would update existing SIP

rule NAC 445.664 ("Pollution control

equipment: Operation; modification;

removal"), which we approved on

March 27, 1984 at 49 FR 11626. NAC

445B.227 is acceptable and, while it is

related to the permit program, it is

separable from it. Thus, it should have

been proposed for approval along with

the other separable rules that were

proposed for approval on April 17,

2007. We do not expect to take action

on NAC 445B.227 as part of our

rulemakings on the permitting program

but will take action on it in a selarate

rulemaking.

Existing SIP rule NAC 445.694

("Emission discharge information") was included in the list of SIP definitions

and rules for which NDEP requested

rescission in NDEP's January 12, 2006

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SIP revision submittal. On August 28,

2006 (71 FR 50875), we proposed action

on the vast majority of requested

rescissions. In the TSD (dated August

16, 2006) that we prepared for that

proposal, we concluded that NAC

445.694 relates to a specific SIP

requirement but deferred any action on

the rescission of NAC 445.694 to allow

NDEP the opportunity to explain how

other SIP rules meet the same SIP

purposes as NAC 445.694 thereby

making the latter rule unnecessary for

retention in the SIP. To date, no

explanation has been forthcoming.

Because NAC 445.694 is not related to

the permitting program, we do not

expect to propose action on NAC

445.694 as part of our rulemakings on

the permitting program but will take

action in a separate rulemaking.

B. Submitted Rules Found to be

Separable From Rest of Permitting

Program

Comment 2: NDEP agrees with the

proposed actions on the seven rules

found to be separable from the set of

rules comprising the permitting

program.

Response 2: We are finalizing in

today's action our disapproval of four

submitted definitions: NAC 445B.021

("Area source" defined), NAC 445B.028

("Best available control technology"

defined), NAC 445B.178 ("Source

reduction" defined), and NAC 445B.196

("Toxic regulated air pollutant"

defined) because these definitions are

not used in the submitted SIP nor in the

existing SIP.

We are also finalizing our approval of

three rules submitted by NDEP: NAC

445B.22083 ("Construction, major

modification or relocation of plants to

generate electricity using steam

produced by burning of fossil fuels")

and NAC 445B.250 ("Notification of

Director: Construction, reconstruction

and initial start-up; demonstration of

continuous monitoring system

performance"), and NAC 445B.252 -

("Testing and sampling") because they

update and strengthen the-SIP. With

respect to NAC 445B.22083 and

445B.250, NDEP submitted the most

current versions in a SIP revision

submittal dated.August 20, 2007. The

versions of NAC 445B.22083 and

445B.250 submitted on August 20, 2007

represent recodifications of the versions

submitted on January 12, 2006 and

proposed for approval on April 17, 2007

and thus differ only in minor respects

(e.g., titles, updated internal rule

references, and historical notes). In this

final action, we are approving the

August 20, 2007 submitted versions of

NAC 445B.22083 and 445B.250.

Our approval of these rules has the

effect of replacing the following rules in

the applicable SIP: NAC 445B.22083, as

submitted on November 30, 2003 and

approved on September 7, 2004 (69 FR

54006), NAQR article 2.16.1, as

submitted on December 10, 1976 and

approved on August 21, 1978 (43 FR

36932), and NAC 445.682, as submitted

on October 26, 1982 and approved on

March 27, 1984 (49 FR 11626).

C. Rules Comprising the Submitted

Permit Program

1. Definitions

Comment 3: With respect to EPA's

evaluation of NAC 445B.036 ("Class I

source" defined), NDEP disagrees with

EPA's conclusion that the definition

should be clarified.

Response 3: We continue to maintain

that clarification of the definition would

be helpful for the reasons set forth in the

TSD on pages 13-14, but we do not

view the marginal potential for

confusion inherent in the rule's current

form to be an approvability issue.

Comment 4: In response to EPA's

evaluation of NAC 445B.038 ("Class III

source" defined), NDEP agrees to

propose a change in the definition to

deny Class III status to sources that are

subject to 40 CFR part 63.

Response 4: A change in the

definition in NAC 445B.038 consistent

with the draft revision shown in

attachment A to NDEP's comment letter

would fully respond to EPA's findings

related to this definition.

Comment 5: In response to EPA's

evaluation of NAC 445B.069 ("Federally

enforceable" defined), NDEP agrees to

propose a change in the definition to

more closely mirror the Federal

definition.

Response 5: A change in the

definition in NAC 445B.069 consistent

-with the draft revision shown in

attachment A to NDEP's comment letter

would partially respond to EPA's

findings related to this definition.

However, to avoid unnecessary

ambiguity, we continue to believe NAC

445B.069 must more closely match

EPA's definition of '"federally

enforceable." For instance, the draft

revised version of NAC 445B.069

provided in attachment A to NDEP's

comment letter, while improved from

the existing version, does not include

"requirements within any applicable

State implementation plan," a source of

enforcement authority that should be

cited in the definition of this term.

Comment 6: In response to EPA's

evaluation of "Section 4 of Regulation

R096-05" ("Good engineering practice

stack height" defined), NDEP intends to

propose the adoption of the definition of "commence" as found in 40 CFR

51.166(b)(9).

Response 6: Adoption of a definition

for the term, "commence," as shown in

attachment A of NDEP's comment letter,

would fully respond to EPA's findings

with respect to "Section 4 of Regulation

R096-05."

Comment 7: In response to EPA's

evaluation of NAC 445B.104 ("Motor

vehicle" defined), NDEP intends to

submit the statutory provision (NRS

485.050) upon which NAC 445B.104

relies.

Response 8: Submittal of NRS 485.050

("Motor vehicle" defined) as shown in

attachment B of NDEP's comment letter

would fully respond to EPA's findings

with respect to NAC 445B.104.

Comment 9: With respect to EPA's

evaluation of NAC 445B.138 ("Potential

to emit" defined), NDEP disagrees with

our conclusion that the definition must

be amended and believes that when the

definition of "potential to emit" (PTE)

in NAC 445B.138 is considered with the

definition of "enforceable" in NAC

445B.060, NDEP's ability to determine

PTE is clear and practicably enforceable

and does not hinder Federal

enforcement under the SP.

Response 9: We disagree that the

definition of "enforceable" in NAC

445B.060, which states "'Enforceable'

means enforceable under federal, state

or local law," addresses the deficiency

identified by EPA in the definition of

PTE in NAC 445B.138 in the proposed

rule and described in more detail on

pages 19-20 of the TSD. In the proposed

rule, we concluded that the definition of "potential to emit" in submitted rule

NAG 445B.138 must be revised to

require effective limits and to include

criteria by which a limit is judged to be

practicably enforceable by NDEP. In

other words, PTE limits must be legally

and practicably enforceable, and the

current definition of PTE in NAC

445B.138 satisfies the former (i.e., legal

authority to enforce) but not the latter

(i.e., practicable to enforce). By

including criteria under which a limit is

determined by NDEP to be effective as

a practical matter (examples of such

criteria are included in the TSD), NDEP

can address the issue of practicable

enforcement.

Whereas the proposed rule calls for

the definition in NAC 445B.138 to be

amended, we now believe that NDEP

has several options for fixing the

deficiency discussed above. A rule

change is one option, but other options,

such as the development of policy

documents to be relied upon by NDEP

permitting staff to establish permit

limits that are practicably enforceable,

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or some combination of rule change and

policy guidance, could also accomplish

the same overall objective. The objective

is to ensure that any physical or

operational limitations on the capacity

of stationary source to emit a regulated

air pollutant that is treated as part of the

source's design for the purposes of

determining PTE is both legally and

practicably enforceable.

Comment 10: In response to EPA's

evaluation of NAC 445B.179 ("Special

mobile equipment" defined), NDEP

intends to submit the statutory

provision (NRS 482.123) upon which

NAC 445B.179 relies.

Response 10: Submittal of NRS

482.123 ("Special mobile equipment"

defined) as shown in attachment B of

NDEP's comment letter would fully

respond to EPA's findings with respect

to NAC 445B.179.

Comment 11: With respect to EPA's

evaluation of NAC 445B.187

("Stationary source" defined), NDEP

plans no changes to this definition.

NDEP indicates that the State's

definition of "special mobile

equipment" is more expansive than the

Federal definition of "nonroad engine"

in 40 CFR 89.2 and is therefore being

retained. NDEP believes that it is clear

that "special mobile equipment," as

defined by the State, does not include

engines that are used in stationary

applications.

Response 11: On pages 21-22 of our

TSD, we explain that the definition of "stationary source" in NAC 445B.187 is

acceptable if NDEP can explain how the

submitted definition complies with

CAA section 302(z) notwithstanding the

exclusion of internal combustion

engines that do not fall within the

nonroad engine or nonroad vehicle

categories. NDEP's statement that the

NAC dbfin'ition of "special mobile

equipment" is more expansive than the

definition of "nonroad engine" in 40

CFR 89.2 simply adds weight to EPA's

concerns over th6 exclusion of "special

mobile equipment" from the meaning of

"stationary source." To the extent that

the definition of "stationary source" in

NAC 445B.187, by exempting "special

mobile equipment," excludes internal

combustion engines other than nonroad

engines and those used for

transportation purposes, the definition

is unacceptable. See CAA section

302(z).

. For instance, the term "nonroad

engine" includes an internal "

combustion engine that, by itself or in

or on a piece of equipment, is portable

or transportable, except where such an

engine remains or will remain at a

location for more than 12 consecutive

months or a shorter period of time for

an engine located at a seasonal source.

See 40 CFR 89.2. Where such an engine

* remains or will remain at a location for

more than 12 consecutive months (or a

shorter period of time for an engine

located at a seasonal source), the engine

should be included in the definition of

"stationary source" under NAC

445B.187, but may be excluded in the

current version of the definition by

virtue of the exclusion for "special

mobile equipment." For a detailed

discussion of the applicability of new

source review to internal combustion

engines, see 61 FR 38250, at 38306-

38307 (July 23, 1996).

2. General Provisions

Comment 12: In response to EPA's

evaluation of NAC 445B.252 ("Testing

and sampling"), NDEP agrees to propose

a change in the rule to replace the term

"method of reference" with "reference

method."

Response 12: The proposed change in

NAC 445B.252 (as shown in attachment

A to NDEP's comment letter) would fix

the minor deficiency in this rule

identified by EPA on page 23 of the

TSD.

3. Operating Permits Generally

Comment 13: In response to EPA's

evaluation of NAC 445B.287

("Operating permits: General

requirements; exception; restriction on

transfer"), NDEP agrees to submit a

subsection cited, but not included, in

the submitted version of the rule, but

requests clarification from EPA as to

why a title V provision, such as the

cited subsection, should be in the

applicable SIP.

Response 13: We did not recognize

thq missing subsection (i.e., subsection

2), which provides for an exemption

from permit revision requirements for

certain Class I sources, as a title V only

provisiori, but believe that it needs to be

submitted to allow for proper

interpretation and application of the

rule.

Comment 14: With respect to EPA's

evaluation of NAC 445B.288

("Operating permits: Exemptions from

requirements; insignificant activities"),

NDEP disagrees that the rule shoud be

amended to exclude from exemption

agricultural equipment which is subject

to any standard set forth in 40 CFR part

63. With respect to emergency generator

provisions, NDEP intends to propose

amendments to the rule to extend the

limitation on emergency generators that

qualify as an "insignificant activity"

from class II sources to all stationary

sources.

Response 14: We view. the absence of.

a limitation on the application of thei :,

exemption for agricultural equipment

subject to any standard set forth in 40

CFR part 63 as a minor deficiency but

continue to encourage NDEP to make

the suggested change. With respect to

emergency generators, we find that

adoption of the amendment to NAC

445B.288, as shown in attachment A to

NDEP's comment letter, would fully

respond to EPA's findings with respect

to that issue.

Comment 15: With respect to EPA's

evaluation of NAC 445B.308

("Prerequisites and conditions for

issuance of operating permits:

Environmental evaluation; compliance

with control strategy; exemption from

environmental evaluation"), NDEP

indicates that the issue of multiple rule

submittals has been resolved by

supplemental material, entitled "Clean

Copy of the December 8, 2006 ASIP

Submittal," submitted on February 13,

2007 and re-submitted as a courtesy as

attachment C to NDEP's comment letter.

Second, NDEP asserts that the issue of

director's discretion in subsection (3) of

NAC 445B.308 is adequately addressed

by the limits and criteria established in

a separate rule, specifically NAC

445B.311(3), and intends to propose

amendments to NAC 445B.308(3) to

refer to the criteria in NAC 445B.311(3).

Response 15: We agree that NDEP

resolved the potential for confusion

arising from multiple rule submittals

through submittal of the supplemental

material on February 13, 2007. We also

find that the draft amendment to NAC

445B.308, as shown in attachment A to

NDEP's comment letter, would resolve

the director's discretion issue.

Comment 16: With respect to EPA's

evaluation of NAC 445B.311

("Environmental evaluation: Required

information"), NDEP notes'that NAC

445B.083, which is cited in NAC

445B.311, is being submitted to EPA for

action as a SIP revision. Second, NDEP

attaches a commitment to obtain EPA's

approval before authorizing the

modification of a model in 40 CFR part

51, appendix W.

Response 16: We find that NDEP's

submittal of NAC 445B.083, as shown in

attachment B to NDEP's comment letter,

resolves the issue of a hanging reference

in NAC 445B.311. With respect to

approval of modified or substitute

models, we find that the submittal of a

commitment by NDEP to obtain EPA's

written approval (included as

attachment D to NDEP's comment letter)

fails to adequately resolve this

deficiency. Any such commitment such

as the one submitted by NDEP must be

incorporated into the SIP, and as such,

must be submitted to EPA as a SIP

revision following the usual SIP

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revision procedures, including notice

and opportunity for public comment.

More importantly, a separate

commitment by NDEP does not ensure

notice to permit applicants of this

requirement and therefore may lead to

disputes over source impacts and

related control technology that could be

avoided if the requirement were written

into the rule. Therefore, we encourage

NDEP to propose an amendment to NAC

445B.311 to require EPA written

approval for use of a modified or

substitute model and to re-submit the

rule, as amended, to EPA for approval

as part of the SIP.

Comment 17: With respect to EPA's

evaluation of NAC 445B.313 ("Method

for determining heat input: Class I

sources"), NDEP intends to propose

amendments to the rule to require the

maximum heat input to be determined

by combining the maximum fuel input

rate and the total calorific value of the

fuel or fuel(s) combusted. NDEP also

intends to propose amendments to the

rule to clarify that appropriate ASTM

methods must be used for determining

heat input.

Response 17: NDEP's amendments to

NAC 445B.313, as shown in attachment

A to NDEP's comment letter, would not

resolve the deficiency identified by

EPA. NDEP's amendments add the word

"maximum" prior to "heat input" and

'then delete the references to 40 CFR

parts 51, 52, 60, and 61. However, the

amended rule still does not specify the

appropriate method for determining

heat input. As described on page 29 of

our TSD, the appropriate method is as

follows: the maximum heat input is

determined by combining the maximum

fuel rate, determined by the

manufacturer, with the total calorific

value of the fuel. ASTM methods are

used to determine the calorific values of

fuels.

Comment 18: With respect to EPA's

evaluation of NAC 445B.326

("Operating permits: Assertion of

emergency as affirmative defense to

action for noncompliance"), NDEP

states that it seems obtuse that an

emission limitation, established in an

integrated construction/operating

permit or an operating pernit to

construct, would be allowed to have an

affirmative defense for an emergency

under a title V operating permit but

would not be allowed to have that same

defense in a SIP-based permit that

established the technology-based

limitation to begin with.

Therefore, NDEP maintains that NAC

445B.326 is fully approvable as

submitted.

Response 18: Normally, an air

pollution control agency issues a

preconstruction permit to a new source

or modification, and the.preconstruction

permit will contain all of the

technology-based emission limitations

necessary for the source or modification

to comply with the SIP. For certain

sources, these SlP-based emission

limitations are then included in title V

operating permits. Noncompliance with

such limitations can trigger either

enforcement of the SIP requirements or

the conditions of the title V permit.

NDEP's program, in contrast, is an

integrated program combining both

'preconstruction and title V operating

permit requirements. As noted on pages

31-32 of our TSD, submitted rule NAC

445B.326 is acceptable with respect to

enforcement actions brought for

noncompliance with title V operating

permit conditions. If EPA were to

approve it into the SIP, the affirmative

defense as set forth in NAC 445B.326

would also apply to the underlying SIP

requirements. However, in its current

form, NAC 445B.326 does not provide

the requisite protection for the NAAQS

and PSD increments as called for under

CAA section 110(a)(2).

For example, the affirmative defense

in NAC 445B.326 does not distinguish

between penalties and injunctive relief,

and if adequately supported by a source,

applies to both types of claims. EPA

recognizes that, while imposition of

penalties under certain circumstances

may not be appropriate, SIPs must

provide for attainment and maintenance

of the NAAQS and protection of PSD

increments, and thus, EPA cannot

approve into the SIP a provision that

would undermine that fundamental SIP

purpose. Thus, for SIP approval, an

acceptable affirmative defense provision

can apply only to penalties, and not to

injunctive relief. This restriction

ensures that both state and federal

authorities remain able to protect the

NAAQS and PSD increments.

We have published guidance to advise

States on the types of considerations

that should be taken into account in

developing a SIP rule providing an

affirmative defense to excess emissions

caused by malfunction. See EPA

memorandum, "State Implementation

Plans: Policy Regarding Excess

Emissions During Malfunctions,

Startup, and Shutdown," from Steven

A. Herman, Assistant Administrator for

Enforcement and Compliance

Assurance, et al, dated September 20,

1999.

Comment 19: With respect to EPA's

evaluation of NAC 445B.331 ("Request

for change of location of emission

unit"), NDEP indicates that the

provision applies to changes of location

of an emission unit both within the

confines of a stationary source and

outside the confines of a stationary

source. NDEP explains that NAC

445B.331 relates to temporary sources

and that such sources must choose

between two types of permits: A normal

stationary source operating permit or a -

general operating permit. If the former is

chosen, the normal permitting process.

occurs, and if the latter is chosen, the

owner or operator must obtain a general

operating permit and request to operate

at the selected location within the

constraints of the general operating

permit. Either way, an environmental

evaluation is performed to ensure

compliance with the NAAQS. NDEP

further explains that the request for

approval of a specific location under

NAC 445B.331 simply allows the NDEP

to evaluate the owner or operator's

proposal to ensure that the proposal

complies with the terms and conditions

of the general operating permit. Thus,

NDEP believes that no changes in this

provision are warranted.

Response 19: On page 32 of our TSD,

we concluded that NAC 445B.331 must

be amended to clarify that it only

provides for changes in locations of

emission units within the confines of

existing sources at which the units are

located. With NDEP's explanation

summarized above, however, we now

believe that NAC 445B.331 need not be

so limited and that NDEP's approach to

temporary sources is reasonable.

Nonetheless, we conclude that

amendments in NAC 445B.331 are still

necessary to carry out the approach that

NDEP describes in its comment letter

because the rule, in its current form,

does not cross-reference either the

normal operating permit provisions or

the general permit provisions. The

purpose of such amendments would be

to clarify that one or the other type of

permit is required notwithstanding the

ten-day advance notice provision in the

rule.

4. Class I Operating Permits

Comment 20: With respect to EPA's

evaluation of NAC 445B.3363

("Operating permit to construct:

Application"), NDEP indicates that theissue of multiple rule submittals has

been resolved by supplemental material,

entitled "Clean Copy of the December 8,

2006 ASIP Submittal," submitted on

February 13, 2007 and re-submilted as

a courtesy as attachment C to NDEP's

comment letter.

Response 20: We agree that NDEP

resolved the potential for confusion

arising from multiple rule submittals

through submittal of the supplemental

material on February 13, Z007.

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Comment 21: With respect to EPA's

evaluation of NAC 445B.33637

("Operating permit to construct for

approval of plantwide applicability

limitation: Application"), NDEP

disagrees with EPA's observation that

NAC 445B.33637(1)(e) is missing text

between the words "limitation" and

"based."

Response 21: NDEP's explanation is

satisfactory, and we no longer believe

that any text is missing in NAC

445B.33637(1)(e).

Comment 22: With respect to EPA's

evaluation of NAC 445B.3364

("Operating permit to construct: Review

of application and determination of

completeness by director; notice"),

NDEP indicates that the issite of

multiple rule submittals has been

resolved by supplemental material,

entitled "Clean Copy of the December 8,

2006 ASIP Submittal," submitted on February 13, 2007 and re-submitted as

a courtesy as attachment C to NDEP's

comment letter. Second, NDEP intends

to amend NAC 445B.3364, as well as

NAC 445B.3395, to provide notice

specifically to Clark and Washoe

Counties for construction or

modification of sources, affecting those

counties. Third, NDEP requests

clarification with respect to federal

requirements for public notice regarding

lead.

Response 22: First, we agree that

NDEP resolved the potential for

confusion arising from multiple rule

submittals through submittal of the

supplemental material on February 13,

2007.

Second, we find that the amendments

in NAC 445B.3364 and NAC 445B.3395

shown in attachment A to NDEP's

comment letter address the issue of

providing notice to county APCDs but,

for the purpose of clarity, we recommend that the word "any" be

substituted for the wofd "each" in the

draft amendment to NAC

445B.3364(6)(e) and that the word "affected" be added immediately before

the term "local air pollution control

agency" in the draft amendment to NAC

445B.3395(7)(b)(2).

Third, with respect to lead ("Pb"), the

federal requirements for public notice

regarding lead in 40 CFR 51.161(d) can

be explained by examining EPA

rulemaking actions that culminated in

the language now found in 40 CFR

51.161(d). These actions include EPA's

proposed restructuring of the

requirements for SIPs in. 40 CFR part 51

at 48 FR 46152 (October 11, 1983) and

corresponding final rule at 51 FR 40656

(November 7, 1986). As described in our

1983 proposal, one of the goals for

restructuring was to reduce reporting

requirements. To further this goal, we

proposed to limit the requirement on

States to notify EPA of all air permitting

actions to cover only major sources in

nonattainment areas and, with respect

to pollutants for which no area

designations are established (such as Pb

at the time), all point sources. 4

Ultimately, EPA decided not to limit the

reporting requirement but to retain the'

pre-existing requirement on States to

notify EPA of all permitting actions,

except for Pb. See 51 FR 40656, at 40658

(November 7, 1986). For new or

modified sources of Pb, EPA finalized

the proposed "point source" threshold

for notification to EPA of proposed

permits.

Thus, since the point source threshold

for Pb is 5 tons per year in 40 CFR

51.100(k)(2), the reporting requirement

in 40 CFR 51.161(d), as it relates to Pb

emissions, attaches to new sources of Pb

with potential to emit 5 tons per year or

more and to any modifications of such

sources that increase Pb emissions. The use of the term "actual emissions" in.

the definition of "point source" in 40

CFR 51.100(k)(2) is not inconsistent

with our interpretation above because,

in the NSR context, for a source not yet

constructed, "actual emissions" equal

the PTE. See 40 CFR 51.166(b)(21)(iv).

Comment 23: With respect to EPA's

evaluation of NAC 445B.3366

("Operating permit to construct:

Expiration; extension"), NDEP agrees

that a definition of "commence" and

related definitions should be added to

its rulebook.

Response 23: We have reviewed the

definitions of "commence," "necessary

preconstruction approvals or permits,"

and "begin actual construction" as

shown in attachment A to NDEP's

comment letter. We find the definitions

of "commence" and "begin actual

construction" to be essentially the same

as the corresponding definitions in 40

CFR 51.166(b) and to be acceptable.

NDEP's draft definition of "necessary

preconstruction approvals or permits"

substitutes "pursuant to NAC 445B.001

to 445B.3689, inclusive," for "under

Federal air quality control laws and

regulations" as set forth in 40 CFR

51.166(b)(10). We will not approve a

deviation from the Federal definition of

the same NSR term unless the State,

specifically demonstrates that the

submitted definition is more stringent, or at least as stringent, in all respects as

4 The 1983 proposal incorrectly used the term

"major source" in connection with the notice

requirement for new or modified sources of

pollutants for which no designations are

established. As explained in our 1986 final rule,

EPA intended the term "point source." See at 51 FR

40656, at 40659 (November 7, 1986).

the corresponding Federal definition.

See 40 CFR 51.166(b).

5. Class II Operating Permits

Comment 24: With respect to EPA's

evaluation of NAC 445B.3457

("Application: Determination of

completeness by director"), NDEP

asserts that EPA was incorrect in .

concluding that the same prescriptive

requirements in 40 CFR 51.160(e) also

exist in 40 CFR 51.161(a) and disagrees

that "well-defined objective criteria" are

required to meet the State's obligations

for public notice under 40 CFR 51.161.

NDEP asserts that implementation of a one-size-fits-all de minimis emissions

approach would be more susceptible to an assertion of being arbitrary and

capricious, would unduly limit the

NDEP's ability to notify the public in a manner that is best suited for Nevada,

would be inconsistent with the State/

EPA partnership Congress intended

under the CAA, and would prohibit

public notice for sources with emissions

less than de minimis levels.

Also, NDEP asserts that EPA has made

conflicting statements with respect to

acceptable public notice requirements.

- On one hand, EPA indicates, without

proper support, that the submitted rules

would weaken the existing SIP with

respect to permitting of all sources

except class I sources. On the other

hand, EPA goes on to say that States

may exempt from review changes that

are not environmentally significant

implying that the SIP can be weakened

in this respect.

Lastly, NDEP points the EPA to

Congress' intent in CAA section

101(a)(3) that States are obligated and

responsible for the creation and

implementation of air pollution

prevention and control at sources. The

EPA is required to provide technical

and financial assistance to States in

connection with the development and

execution of their air pollution

prevention and control programs.

Response 24: First, we do not

interpret our regulations so as to apply

the same prescriptive requirements

found in 40 CFR 51.160(e) to 40 CFR

51.161(a). The former requires States or

local agencies to identify types-and sizes

of facilities, buildings, structures, or

installations which will be required to

apply for a permit for a new source or modification and discuss the basis for

determining which facilities will be

subject to review. The latter requires the

State or local agency to provide the

opportunity for public comment on

information provided by permit

applicants and on the agency's related

analysis and proposed action on the

permit application.

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Under 40 CFR 51.161(a), and unlike

40 CFR 51.160(e), the State or local

agency is not required to identify types

of permit applications that will be

subject to review nor discuss the basis

for that decision. Rather, the public

review requirements apply to each and

every permit action proposed by the

State or local agency. However, if the

State or local agency chooses to exempt

some new sources or modifications

subject to permitting from public

participation requirements, it must do

so consistent with the de minimis

principle set forth in Ala. Power Co. v.

Castle, 636 F.2d 323, at 360-361

(D.C.Cir. 1979) 5 and by application of

well-defined objective criteria. NDEP's

current approach fails the de minimis

principle by foregoing public notice for

sources up to 100 tons per year and

substitutes Director's discretion for

well-defined objective criteria.

On page 49 of our TSD, we indicate

that we believe that a State may tailor

the public participation process for less

environmentally significant sources and

modifications and note that NDEP could

limit mandatory public notice to a

subset of Class II sources based on de

minimis thresholds and allow for

Director's discretion to require public

notice below those thresholds. 6 Our

objection to NDEP's current approach is

the use of 100 tons per year as the

5 While the Alabama Power court discusses th

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 doesprovide 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).

6 Thus, with respect to the circumstances

described by NDEP involving a very small medical

waste pyrolysis facility, EPA does not mean to

imply that, by establishing de minimis thresholds

for mandatory public notice, a State should limit its

discretion to require public notice for sources below

such thresholds. To the contrary, below such

thresholds, we believe it to be appropriate that a

State retain authority to require public notice in

light of special or unusual circumstances.

threshold above which public notice is

mandatory given that NDEP has

provided no demonstration that 100

tons per year represents an acceptable

de minimis level below which the

burden of public notice on sources

yields a gain of trivial or no value.

NDEP might consider lowering the

mandatory public process thresholds

from 100 tons per year to the thresholds

used in connection with environmental

evaluations. We believe that NDEP, for

instance, might be able to demonstrate

that the thresholds triggering

preparation of environmental

evaluations are appropriate thresholds

for mandatory public notice consistent

with the de minimis principle.

Second, NDEP indicates that EPA has

not justified the conclusion that the

public participation requirements for

class II sources (which are found in

NAC 445B.3457) weaken the existing

SIP. The basis for our conclusion is a

comparison of NAC 445B.3457 with the

corresponding rule in the existing SIP.

The existing SIP rule, NAC 445.707

[subsection (3)] is cited on page 37 of

our TSD in connection with our review

of NAC 445B.3457. NAC 445.707

[subsection (3)] requires the director to

give preliminary notice of his intent to

issue or deny a "registration certificate"

for a single source within 15 days after

receiving adequate information for

reviewing the registration application.

This obligation on the director attaches

to all applications for "registration

certificates" (which are now referred to

as permits).

In connection with our review of NAC

445B.3457, we should also have cited

existing SIP NAC 445.707[subsections

(4) and (5)], which require the

application, the director's review and

preliminary intent to issue or denya

registration certificate to be made

public, provides for a 30-day comment

period, and requires the director to take

into account written public comments,

among other requirements. Once again,

the public notice and 30-day comment

period requirements attach to all

applications. Thus, the submitted

approach that limits mandatory public

notice and comment to sources greater

than 100 tons per year clearly weakens

the SIP relative to public participation

for permitting of new sources and

modifications. Our conclusion in this

regard does not imply that no relaxation

from the existing SIP can be approved.

Rather, we indicate in our TSD that we

believe that exemptions from the public

notice and comment can be approved so

long as such exemptions are supported

under the de minimis principle

discussed above.

Lastly, with respect to the State/EPA

partnership established by Congress

through the CAA, we recognize that air

pollution prevention and air pollution

control at its source is the primary

responsibility of States and local

governments. We are also cognizant of

EPA's responsibility under the CAA to

ensure that each State adopt and submit

a plan which provides for

implementation, maintenance, and

enforcement of the NAAQS. EPA fulfills

this responsibility in part by approving

or disapproving SIPs and SIP revisions

submitted under CAA section 110 for

compliance with the CAA and EPA's

SIP rules in 40 CFR part 51. Our review

and action on the State's submittal of its

stationary source permitting program,

including the provisions related to

public notice, comport with our

responsibilities under the CAA.

Comment 25: With respect to EPA's

evaluation of NAC 445B.3477 ("Class II

general permit"), NDEP notes that,

under Nevada's regulations, a "general

permit" is a type of operating permit

(one issued by the Director to cover

numerous similar stationary sources)

and that requirements for a general

permit and the criteria by which sources

may qualify for a general permit are

found in the general permit. Second,

NDEP agrees to propose amendments to

NAC 445B.3477 to add public

participation requirements.

Response 25: On page 38 of our TSD, we indicated that NAC 445B.3477 must

identify the requirements for general

permits, the public participation

requirements for issuing such permits,

and the criteria by which stationary

sources may qualify for such a permit.

Based on NDEP's explanation, we now

recognize the "general permit" as a type

of operating permit (under NAC

445B.082) that, as such, is subject to the

requirements that apply generally to

Class II operating permits. We now also

understand that NDEP performs a worstcase environmental evaluation to ensure

that the terms and conditions of the

general operating permit will ensure

compliance with the NAAQS and are

consistent with the Class II operating

permit requirements (see page 5 of

NDEP's comment letter), has

traditionally provided for public notice

of general permits (although not

required to do so by the terms of the

rule), and has recently drafted revisions

to NAC 445B.3477.to require such

public notice in the future. We have

reviewed the draft public notice

provisions that have been added to NAC

445B.3477 (as shown in attachment A to

NDEP's letter) and find them acceptable.

Thus, we find that our objections to

NAC 445B.3477 have been satisfactorily

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resolved except for the environmental

evaluation requirement, which has been

performed in practice, but is not

required by the terms of the rule as a prerequisite to issuing a Class II general

permit. The environmental evaluation is

the tool by which NDEP determines

whether new or modified sources would

result in a violation of the NAAQS but

is not required for all Class II permits;

thus, NAC 445B.3477 must be amended

to clearly require environmental

evaluations for all class II general

permits. We also suggest clarifying that

general permits are a specific type of

Class H permit.

6. Other Issues

Comment 26: With respect to EPA's

suggestion to add the phrase "as

incorporated by reference" to a number

of rules to be consistent with the use of

that phrase in other rules, NDEP plans

to review the use of the phrase

throughout chapter 445B of the NAC for

consistency and amend as appropriate.

Response 26: This is acceptable. As

noted on page 53 of the TSD, we view

this issue as one for which clarification

is warranted but not as one that affects

approvability of the submittal.

D. Rescissions of Permitting-Related

Rules From Applicable SIP

Comment 27: NDEP agrees with our proposal to disapprove certain

rescissions, and to approve certain other

rescissions, of permit-related provisions

in the existing SIP. NDEP also provides

additional background information

supporting our proposed approval of the

rescission request for NAQR article

13.1.3(3), and identifies public process

documentation for rescission of NAQR

article 13.1.3(3) and NAC 445.706(2) in

previously-submitted materials.

Response 27: In today's action, we are

finalizing our disapproval of the

rescissions of NAQR article 1.60

("Effective date"), NAQR article 1.72

("Existing facility"), and NAC 445.715

("Operating permits: revocation") from

the applicable SIP. We are disapproving

the rescissions of these three provisions

because, as described on pages 55-59 of

the TSD, the provisions are relied upon

by other rules that remain in the

applicable SIP. NAQR article 1.72 and

NAC 445.715 may be rescinded at such

time as we act to approve the rules

comprising the overall stationary source permitting program.

We are also finalizing our approval'of

the rescissions of NAQR article 13.1.3(3)

[Minor source BACT] and NAC

445.706(2) ("Application date: payment

of fees") from the applicable SIP. Our

rationale for approving the rescission of

these two provisions is provided on

pages 56-58 of the TSD. In short, we are

-approving the rescission of NAC article

13.1.3(3) because controls representing

"best available control technology"

(BACT) are not required for minor

sources and minor modifications,

rescission of the minor source BACT

requirement would not have a

retroactive effect, rescission would only

affect a subset (not all) of new minor

sources, and we find no evidence that

NDEP is relying on'the BACT

requirement in article 13.1.3(3) to

maintain the NAAQS in any area. We

are approving the rescission of NAC

445.706(2) because permit fee rules are

no longer a SIP requirement in areas,

such as those under NDEP jurisdiction,

that have an approved title V program.

We do not agree with NDEP that a

review of regulatory history clearly

shows that the State's intent in adopting

the BACT requirement in NAQR article

13.1.3(3) was to apply BACT only to

PSD major sources and major

modifications. Our review indicates that

the State intended to apply BACT to the

same types of sources and modifications

in attainment areas as were subject to a

control technology representing the

lowest achievable emissions rate (LAER)

in nonattainment areas. Thus, since

LAER was triggered at 100 tons per year

in nonattainment areas (for

nonattainment pollutants), the State

intended that BACT be triggered at 100

tons per year in attainment areas,

thereby extending the applicability of

BACT beyond that required under PSD

(except for certain source categories for

which a 100 ton per year threshold

applies under PSD). Notwithstanding

our disagreement with NDEP regarding

the State's intent in adopting the BACT

requirement, we are finalizing the

rescission of the requirement from the

applicable Nevada SIP for the reasons

set forth in our TSD and summarized

above.

In our proposed rule, we indicated

that our approval of the rescissions of

these two provisions was contingent

upon receipt of public notice and

hearing documentation from the State.

See 73 FR 19144 (April 17, 2007). In

response, NDEP has identified the

relevant public process documentation

in materials previously-submitted to 4

EPA. Specifically, NDEP shows that

NAQR article 13.1.3(3), later re-codified

as NAC 445.708(2)(c), was repealed by

the State Environmental Conunission

(SEC) on August 29, 1990, and that NAC

445.706(2) was repealed by the SEC on

November 3, 1993. Documentation for

both actions, and related public process,

is found in NDEP's SIP revision

submittal dated February 16, 2005.

Upon review of the public process

documentation identified by the State,

we find that the State has met the

contingency placed by us on the

proposed approval of the requested

rescissions of these two provisions from

the applicable SIP.

IV. EPA Action

In its comment letter dated August 17,

2007, NDEP explains how it intends to

remedy many of the deficiencies in the

State's rules that govern application for,

and issuance of, permits to stationary

sofirces and that EPA identified in the

April 17, 2007 proposed rule, but

several important deficiencies, such as

insufficient public notice, remain

unresolved. Therefore, pursuant to CAA

section 110(k)(3), we are finalizing our action as proposed on April 17, 2007

with the exception that, for a small

subset of rules, our final action relates

to amended rules submitted by NDEP on August 20, 2007 rather than the versions

of the corresponding rules submitted

earlier and included in our April 17,

2007 proposal (see Table 4, above).

Therefore, for the reasons set forth in our proposed rule and TSD, as clarified

in the responses to comments in this

document, we are taking final action to

approve certain revisions to the Nevada

SIP and to disapprove certain other

revisions. With respect to approvals, we are taking final action to approve NAC

445.22083 ("Construction, major

modification or relocation of plants to

generate electricity using steam

produced by burning of fossil fuels")

and NAC 445B.250 ("Notification of

Director: Construction, reconstruction

and initial start-up; demonstration of

continuous monitoring system

performance"), as re-submitted on August 20, 2007, and NAC 445B.252

("Testing and sampling"), as.submitted

on January 12, 2006. 7 We are also

approving the rescission from the

applicable SIP of NAQR article 13,

subsection 13.1.3(3), i.e., the minor

source BACT requirement, and NAC

445.706(2), which relates to payment of

fees.

With respect to disapprovals, we are taking final action to disapprove four

submitted rules evaluated separately

from the bulk of the permitting program

(see table 1, above); all of the submitted

rules that comprise NDEP's stationary

source permitting program (see tables 2

and 4, above); the two statutory

7 Final approval of these rules supersedes the

following rules in the applicable SIP (superseding

rules shown in parentheses) upon the established

compliance date for any new or amended

requirements in the superseding rules: NAC

445B.22083, as submitted on November 30, 2003

(NAC 445B.22083); NAQR article 2.16.1 (NAC

445B.250); and NAC 445.682 (NAC 445B.252).

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provisions listed in table 4; and the

rescissions of three existing SIP rules as

listed in table 3, above. Our disapproval

of these submitted rules, statutory

provisions, and rescissions does not

trigger sanctions under CAA section 179

and 40 CFR 52.31 because the State of

Nevada has an approved stationary

source permitting program in the

applicable SIP and is not required under

the Clean Air Act to submit its updated

stationary source permitting program to

EPA for approval.8

Section 553 of the Administrative

Procedure Act, 5 U.S.C. 553(b)(B),

provides that, when an agency for good

cause finds that notice and public

procedure are impracticable,

unnecessary, or contrary to the public

interest, the agency may issue a rule

without providing notice and an ,

opportunity for public comment. We

have determined that there is such good

cause for making our approval of two

rules (i.e., NAC 445B.22083 and NAC

445B.250) and our disapproval of the

other rules submitted by NDEP on

August 20, 2007 (see table 4, above)

final without prior proposal and

opportunity for comment because the

rules are in substance the same as those

that they supersede and for which

public notice and comment was

provided in our April 17, 2007 proposed

rule. Good cause also exists for final

disapproval of the two statutory

provisions submitted on August 20,

2007 without prior proposal and

opportunity for comment because both

were adequately described in the April

17, 2007 proposed rule and clearly

related to the overall program for which

we proposed disapproval and for which

we are taking final action to disapprove

in this document. Thus, notice and

public procedure for our action on the

statutory provisions and amended rules

contained in NDEP's August 20, 2007

SIP submittal are unnecessary.

V. Statutory and Executive Order

Reviews

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355, May

22, 2001). This action merely approves

or disapproves state law as meeting

a In this context, we are referring to NDEP's

program for issuing pre-construction permits for all new sources and modifications other than those for

which part C (i.e., PSD) or part D (i.e.,

Nonattainment NSR) of title I of the CAA apply.

Federal requirements and imposes no

additional requirements. Accordingly,

the Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). Because this

rule approves or disapproves state law

and does not impose any additional

enforceable duty, it does not contain.

any unfunded mandate or significantly

or uniquely affect small governments, as

described in the Unfumded Mandates

Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal

implications because it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(65 FR 67249, November 9, 2000). This

action also does not have Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

approves or disapproves state law

implementing a Federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. This rule also is not subject to

Executive Order 13045 "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA(s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by June 16, 2008.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to.

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Lead, Particulate matter, Reporting and

recordkeeping requirements, Sulfur

oxides.

Dated: February 20, 2008.

Wayne Nastri,

Regional Administrator, Region IX.

E Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52--[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

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

Subpart DD-Nevada

0 2. Section 52.1470 is amended by

adding paragraphs (c)(18)(i)(A),

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

read as follows:

§ 52.1470 Identification of plan. * * * * *

(c) * * * (18) * * *

(i) * * *

(A) Previously approved on April 14,

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

HeinOnline -- 73 Fed. Reg. 20548 2008
Federal Register / Vol. 73, No. 74 / Wednesday, April 16, 2008 / Rules and Regulations

section and now deleted without

replacement: Nevada Air Quality

Regulations (NAQR) article 13.1.3(3). * * * * *

.(25) * * *

(vi) Previously approved on March 27,

1984, in paragraph (c)(25)(i)(A) of this

section and now deleted without

replacement: Nevada Administrative

Code (NAC) section 445.706(2). * * * * *

(56) * * *

(i) * * *

(A) * * *

(9) The following sections of Chapter

445B of the Nevada Administrative

Code were adopted on the dates listed

in paragraph (c)(56)(i)(A)(9) of this

section:

(i) September 18, 2003: 445B.252. * * * * *

(67) New or amended regulations

were submitted on August 20, 2007 by

the Governor's designee.

(i) Incorporation by reference.

(A) Nevada Division of Environmental

Protection.

(1) Nevada Administrative Code

(January 2007 codification by the

Legislative Counsel Bureau) section

445B.22083, "Construction, major

modification or relocation of plants to

generate electricity using steam

produced by burning of fossil fuels;"

4nd section 445B.250, "Notification of

Director: Construction, reconstruction

and initial start-up; demonstration of

continuous monitoring system

performance;" adopted by the State

Environmental Commission on October

4, 2005. * * * * *

[FR Doc. E8-8139 Filed 4-15-08; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF HOMELAND

SECURITY '

Federal Emergency Management

Agency

44 CFR Part 206

[Docket ID FEMA-2008-0003]

RIN 1660-AA59

Disaster Assistance; Change in

Federal Share for Alternate Projects for

Public Facilities

AGENCY: Federal Emergency

Management Agency, DHS.

ACTION: Final rule.

SUMMARY: This final rule makes a

conforming amendment to the Federal

Emergency Management Agency's

(FEMA) Public Assistance regulations to

reflect two changes to the Robert T.

Stafford Disaster Relief and Emergency

Assistance Act (the Stafford Act) made

by the Security and Accountability For

Every Port Act of 2006 (the SAFE Port

Act). The first change amends the

percentage of the Federal contribution

for alternate projects from 75 percent to

90 percent of the Federal share of the

Federal estimate of eligible costs for

public facilities. The second change

removes language that provided for

Federal funding of 90 percent of the

Federal share of the approved Federal

estimate of eligible costs for alternate

projects in areas with unstable soil.

These changes are technical and

conforming amendments that revise

FEMA's regulations to conform with

amendments to the Stafford Act. FEMA

is exercising no discretion in

implementing these changes.

DATES: This final rule is effective April

16, 2008.

FOR FURTHER INFORMATION CONTACT:

James A. Walke, Director, Public

Assistance Division, Federal Emergency

Management Agency, 500 C Street SW.,

Room 601, Washington, DC 20472,

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

646-3304; or (e-mail)

James. Walke@dhs.gov.

SUPPLEMENTARY INFORMATION: Under the

authority of the Robert T. Stafford

Disaster Relief and Emergency

Assistance Act (the Stafford Act), Public

Law 93-288, as amended, 42 U.S.C.

5121-5207, the Federal Emergency

Management Agency (FEMA) provides

funding to State or local governments or

private nonprofit organizations (PNPs)

to repair, restore, reconstruct or replace

public facilities owned or controlled by

the State or local government or PNP. If,

however, the State or local government

or PNP determines that the public

welfare would not best be served by

repairing, restoring, reconstructing, or

replacing the public facility, it may elect

to receive a contribution to use for

alternate projects. Any alternate project

must either be "to repair, restore, or

expand other selected public facilities;

to construct new facilities; or to fund

hazard mitigation measures that the

State or local government determines to

be necessary to meet a need for

governmental services and functions in

the area affected by the major disaster."

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

206.203(d)(2)).

Section 609 of the Security and

Accountability For Every Port Act of

2006 (SAFE Port Act), Public Law 109-

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

amended section 406(c)(1) of the

Stafford Act by changing the Federal

contribution for alternate projects for

State and local government applicants

from "75 percent of the Federal share"

of the eligible costs for public facilities

to "90 percent of the Federal share" of

the eligible costs for public facilities.

Accordingly FEMA is revising 44 CFR

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

statutorily mandated percent share

increase for public facilities.

Because Congress made this change

for public facilities, but made no change

to the 75 percent contribution for

private nonprofit applicants' alternate

projects, FEMA is adding a new

paragraph to separately address th6

Federal contribution for private

nonprofit facilities, which remains at 75

percent.

Section 609 of the SAFE Port Act also

struck former section 406(B) of the

Stafford Act, which provided for

Federal funding of 90 percent of the

Federal share of the approved Federal

estimate of eligible costs of alternate'

projects in areas with unstable soil.

Because Congress removed this

authority from the Stafford Act and

because FEMA will already be

providing funding of 90 percent of the

Federal share of the approved Federal

estimate to State and local governments

regardless of the stability of the soil

through its change to 44 CFR

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

regulation that implemented section

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

Administrative Procedure Act

Under the Administrative Procedure

Act (APA), a notice of a proposed

rulemaking is not necessary to revise a

regulation if the agency finds for good

cause that notice and public procedure

are "impracticable, unnecessary, or

contrary to the public interest." See 5

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

conforms with the good cause

exemption under section 553(b)(B) of

the APA because notice and comment is

unnecessary and impractical. Public

comments would serve no useful

purpose, as the revision to the

regulation is mandated by the change to

FEMA's statutory authority, and FEMA

has no discretion to alter this statutory

mandate. For these reasons, FEMA also

finds that it has good cause not to delay

the effective date of this rule under 5

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

Executive Order 12866, as Amended,

Regulatory Planning and Review

FEMA has prepared and reviewed this

rulemaking under the provisions of

Executive Order 12866, 58 FR 51735,

Oct. 4, 1993, and as amended. Under

Executive Order 12866, a significant

regulatory action is subject to the Office

20549

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