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Citation: 73 Fed. Reg. 20536 2008

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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 theprevious twelve-month Growth Rebate amount will be period will not be eligible for a Growth calculated bymultiplying the difference Beginning June 1, 2009, and eachJune Rebate.) between the previous twelve-month 1 thereafter, shippers who qualify for a For shippers meeting all ofthe DDU volume and the most recent Loyalty Rebate and who increase their eligibility criteria, the percentage level twelve-month DDU volume bythe Parcel Select volumes in the most recent ofthe Growth Rebate is based on their average postage perDDU piece over the twelve-month (June 1-May 31) period growth percentage and their total Parcel current twelve-month period, times the (compared with theprevious twelve- Select revenue in the twelve-month applicable percentage shown inExhibit month period) by more than 10 percent period, as shown inExhibit 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 >$25M >$50M >$loom >$300M >$500M (pret percent) (ercent (percent) (percent) (percent) Total parcel select annual growth rate (percent)

..................................... Rebate on qualified incremental DDU volume

>10

................................................................................. 2 4 6 8 10 10 >20

........................................................................................................... 4 6 8 10 12 12

>30

........................................................................................................... 6 8 10 12 14 14

At the discretion ofthe USPS, volumes fromthe following 3-digit ZIP Codes maybe 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 aresult ofmergers or acquisitions. Exclusions willbe administered on a case-by-case basis.

* * * * *
500 Additional Services

* * * * *
507 Mailer Services

* * * * *

13.0 Parcel ReturnService

* * * * *

[Revise headingby 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 ofpieces retrieved from the RBMC orthrough areverse manifest service agreement.

[Revise theheadingof Exhibit 13.3.2
to readas follows:] Exhibit 13.3.2 Parcel Return ServiceReturn Machinable

[Insertchart] [Revise theheadingof Exhibit 13.3.3
to readasfollows:]
Exhibit 13.3.3 ParcelReturn ServiceNonmachinable

[Insertchart]

700 Special Standards
703 Nonprofit StandardMail and OtherUnique Eligibility

* *. * * *

2.0 Overseas MilitaryMail
2.1 Basic Standards

* * * * *

2.1.2 APO/FPO Priority Mail Flat-Rate Boxes

[Revisetext byaddingreferenceto commercial pricesatthe endofthe secondparagraph.]

* * * SeeExhibit 1.2b, Priority Mail Prices-Commercial, for the comnercial base price.

Wewill publish an appropriate amendment to 39 CFR 111.3.

Neva R. Watson, Attorney,Legislative. [FR Doc.E8-8210 Filed4-15-08; 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; Revisionstothe Nevada State Implementation Plan; Stationary Source Permits
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.
SUMMARY: EPA is taking final actionto approve certain revisions to the applicable state implementation plan for the State ofNevada and to disapprove certain otherrevisions. These revisions involve State rules governing applications for, and issuance of, permits forstationary sources, but not including review and permitting of major sources andmajor modifications under parts C and D oftitle Iofthe 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 ofrevisions 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: EffectiveDate:This rule is effective onMay 16,2008.

HeinOnline -- 73 Fed. Reg. 20536 2008Federal 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.govand in hard copy atEPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information maybe publicly available only atthe hard copy location (e.g., copyrighted material), and
some may notbe publicly available in either location (e.g., Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normalbusiness 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 HasYet to Propose Action B.Submitted Rules Found to be Separable

FromRest ofPermitting Program C. Rules Comprising theSubmitted Permit

Program 1.Definitions 2.General Provisions 3.Operating Permits Generally 4. Class IOperating Permits 5.Class IIOperating Permits 6. Other Issues D. Rescissions ofPermitting-Related Rules

FromApplicable SIP IV. EPA Action V.Statutory andExecutive Order Reviews
I. Proposed Action

.OnApril 17, 2007 (72 FR 19144), EPA proposed several actions in connection with certain revisions to the Nevada

- StateImplementation Plan (SIP) submitfed bythe Nevada Division of Environmental Protection (NDEP) under the CleanAir Act (CAA or "Act"). Our April 17, 2007 proposal covers the State rules that were included inNDEP'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'srequests forrescission ofcertain permit-related rules in the existing SIP.' Tables 1,2, and 3below list the relevant submitted rules andrescission requests covered by

our April 17, 2007proposed rule.

Table 1lists the submitted rules that, while related to permitting, are separable from the rest ofthe permitting-related rules and thus qualify for action independent ofour action on the bulk ofthe permitting-related rules. Table 2 lists the submitted set ofrules that comprise the bulk ofNDEP's stationary source permitting program (excluding review underparts C and D ofthe title I ofthe 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, ofthe 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 ofNAC 445B.021, 445B.178, and 445B.196 because they define terms that

'We note that thestationary source permitting rules that are the subject ofthis final rule are not intended to satisfy the requirements for preconstruction review and permitting ofmajor

sources ormajor modifications underpart C ("Prevention ofSignificant Deterioration ofair quality") or partD ("Planrequirements for nonattainment areas") oftitle I ofthe Clean Air Act. Ofthe 100+ permit-related rules or statutes that
were submitted by NDEP for approval orfor rescission, we aretaking final action today on all but~two (but, also, see response to comment #1 for are not used inany ofthe other submitted rules or in any ofthe 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 ofthe other submitted rules and is used only inan existing SIPrule for which we proposed to grant NDEP's rescission request. 2

Table 2lists the subuiitted rules governing application for, andissuance of,permits for stationary sources under

two rules inadvertently left out ofour April 17, 2007 proposal). We are deferring action on the State's requests for rescission ofrule 25 ofgeneral order number 3 of theNevada Public Service Commission and Nevada Revised Statutes (NRS) 704.820 to 704.900-Construction ofutility facilities: utility environmental protection act. Rule 25 ofgeneral order number 3 and NRS 704.820-900 relate to new source review under part D, andas 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 NDEPjurisdiction in the State of Nevada, excluding the State's rules (yet to be submitted) for review and permitting ofmajor sources and major modifications under parts C andD of titleI ofthe CAA. In our review ofthese submitted rules, we identified anumber ofdeficiencies that lead us to conclude that the submitted rules do not comply with therequirements ofsection 110 and 40 CFR part 51, sections 51.160 through 51.164 and that formed the basis forour proposed disapproval.

-

review program underpart Doftitle IoftheClean Air Act.

2"Best Available Control Technology" (BACT) is the control technology requirement under EPA's Prevention ofSignificant Deterioration (PSD) regulations for pre-construction review and permitting ofnewmajor sources andmajor modifications in attainment orunclassifiable areas, and wewould expectthis definition tobere- submitted by NDEP whenthey submit their rules implementing PSDfor approval by EPAas aSIP revision. 

### I 20537

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

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

### NDEP JURISDICTION

Submitted 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 Ioperating 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 IIsource" 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 permit 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 IIsources
..................................... 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 permits:Administrative 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 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06 01/12/06

01/12/06 12/08/06 01/1 2/06

01/12/06 01/12/06 12/08/06

12/08/06 12/08/06 01/12/06 01/12/06 01/12/06 01/12/06

12/08/06

01/12/06 01/12/06

01/12/06

12/08/06 12/08/06 12/08/06 ...................................

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

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

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

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

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

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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 IIgeneral 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 orstatutory provisions that have notbeen submitted for approval as part ofthe SIP, or multiple versions ofthe 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 torequire effective limits and to include criteria bywhich a limit is judged to be practicably enforceable by NDEP.

Third, we found that NDEP's stationary source program may not be as

.inclusive asrequired underthe 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 thatthe method for determining heat input for class I

sources in submitted ruleNAC 445B.313 mustbe amended to require that combustion sources make applicability determinations based on themaximum heatinput.

Fifth, we concluded thatNAC 445B.331 ("Request for change of location ofemission unit") must be amended to limit its applicability to location changes within the confines of the existing stationary source atwhich 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 forgeneral 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 forNDEP to authorize use ofa modification or substitution ofa model specified in appendix W of40 CFR part 51 without EPA approval and must be amended accordingly tocomply with 40 CFR 51.160(f).

Eighth, to comply with 40 CFR 51.161 ("Public availability ofinformation"),

we concluded that the relevant submitted rules must be amended to provide for adequate public review of newor 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 ofan 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 of40 CFR 51.161.

With respect to the issue ofpublic

- review ofproposed permits, we found that the submitted provisions forclass I

sources are generally acceptable with the exception of submitted rule NAC 445B.3364 ("Operating permit to construct: Review of application and determination ofcompleteness 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 permitbe sent to the Washoe County Health District or the Clark County Department of Air Quality and 

### 20539

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### 20540 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations

Environmental Management for those

sources proposed to be constructed or modified in Washoe County or Clark County, respectively. Also, we found that the rules mustbe amended to provide for public participation for new ormodified sources oflead with potential toemit 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 emissionlimitations approved into the SIP.

Lastly, while the submitted rules include a specific prohibition on approving apermit for any source where the degree ofemission limitation required is affected by that amount of the stack height as exceeds good engineering practice stack height or any otherdispersion technique, we found that the relevant provision (i.e., 445B.308(3)) includes director's discretion (* * * if"the Director determines" * * *), whichmust be removed in order for EPA to approve the rules as meeting the requirements of40 CFR 51.164.

Table 3 lists the permitting-related rules in the existing SIP for which NDEP has requested rescission andfor 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 andNAC 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 ofthe 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 ofthe 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 oftitle I ofthe Act;

* Rescission ofthe SIP BACT requirement would only act prospectively and would not relax emission limits in any existing permits;

; Rescission would not eliminate the BACTrequirement 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 ofSignificant Deterioration (PSD) regulations at 40 CFR 52.21 (see 40 CFR 52.1485); and

* We find no evidence to suggest that Nevada is relying onthe 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 ofthe rescission request for NAC 445.706(2), which relates to permit fees, because permit fee rules are no longer required for theNDEPportion of the Nevada SIP under CAA section 110(a)(2)(L) given

our approval ofNDEP's title Vprogram (andrelated fee requirements). We made

our proposed approval ofthe rescission requests forNAQR article 13.1.3(3) and NAC 445.706(2) contingent upon receipt of documentation from NDEP ofnotice and public hearing for repeal or rescission ofthese provisions as required under CAA section 110(1) for all SIP revisions.

In our April 17, 2007 action, we -proposed disapproval ofthe rescission request for NAQR article 1.60 because it defines a term, "effective date," thatis relied upon byother terms in the existing SIP that NDEPintends 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 andNAC 445.715 could otherwise be approved but for the fact that we were proposing disapproval ofthe submitted set ofrules comprising NDEP's current stationary source permitting program (listed in table 2, above). NAQR article 1.72 andNAC

3CAA section 110(1) prohibits EPA from approving any SIPrevision thatwould interfere withany applicable requirementconcerning attainment and reasonable furtherprogress, orany otherapplicable requirement ofthe 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 theirrelated rescission requests atthis time.

The Technical Support Document (TSD)-(datedMarch 21, 2007) that we prepared for our April 17, 2007 proposed rule provides more details concerning our evaluation ofeach ofthe rules listed in tables 1,2, and 3 and our evaluation ofthe permitting program as awhole.
II. NDEP's August 20, 2007 SIP Revision Submittal

Byletter 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 ofthe rules submitted for approval and included in

our April 17, 2007 proposed rule, but hadnot been submitted for approval intothe SIP themselves. We identified their absence as a one ofthe deficiencies inthe 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, andbecause, in substance, the on them intoday'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 emissions" defined

.................................................. 10/04/05

.................................... 08/20/07 NAC 445B.036

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

.......................................................... 08/19/04

.................................. 08/20/07 NAC445B.044

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

............................................................... 10/04/05

................................... 08/20/07 NAC445B.054

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

.................................................. 10/04/05

.................................. 08/20/07 NAC4451.064

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

............................................ 10/04/05

................................... 08/20/07 NAC445B.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

........................ Applicationfor revision

............................................................... 10/04/05

................................... 08/20/07

III.Public Comments andEPA 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 ofAir 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 ofthe State Environmental Commission), attachment B ("ASIP Submittal August 17, 2007"), attachment C ("Clean Copy ofthe December 8, 2006ASIP 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 belowto aTSD relate to the TSD (dated March 21, 2007) that

we prepared for our April 17, 2007 proposed rule. A. SubmittedRulesorRescissions for WhichEPA Has Yet ToPropose Action Comment 1:NDEP recounts various SIP revisions submitted as part ofthe State's efforts inrecent years to update
a significant portion ofthe 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 therequest to rescind existing SIP provision NAC 445.694.

Response 1:We agreewith this comment, and discuss our plans for the two submitted rules and one rescission request cited -inthe comment in the following paragraphs.

Submitted ruleNAC 445B.200 ("Violation" defined) would update existing SIP rule NAC 445.649 ("Violation" defined), which we approved onMarch 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 therest ofthe permitting program. Thus, it should have been included in the set ofrules comprising thepermitting program for which we proposed disapproval in our April 17, 2007 action. We anticipate that we will propose approval ofthis 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 ormodification ofrequired equipment: modification ofrequired 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 itis related to the permit program, it is separable from it.Thus, it shouldhave been proposed for approval along with the other separable rules that were proposed for approval onApril 17, 2007. We do not expect to take action

on NAC 445B.227 aspart ofour rulemakings onthe permitting program but will take action on itin a selarate rulemaking.

Existing SIP rule NAC 445.694 ("Emission discharge information") was included inthe listof 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 ofrequested rescissions. In the TSD (datedAugust 16, 2006) that we prepared forthat proposal, we concluded that NAC 445.694 relates to a specific SIP requirement but deferred any action on therescission ofNAC 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 aspart ofour rulemakings on the permitting program but willtake action in a separate rulemaking.

B. SubmittedRulesFoundto be Separable FromRestof Permitting Program

Comment 2:NDEP agrees with the proposed actions on the seven rules found to be separable from the set of rules comprising thepermitting program.

Response2:We are finalizing in today's action our disapproval offour 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 ("Toxicregulated 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 ofplants to generate electricity using steam produced by burning offossil 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 ofNAC 445B.22083 and 445B.250 submitted onAugust 20, 2007 represent recodifications ofthe 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 ofthese rules has the effect ofreplacing 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.RulesComprisingthe Submitted PermitProgram
1.Definitions

Comment3:With respect to EPA's evaluation ofNAC 445B.036 ("Class I source" defined), NDEP disagrees with EPA's conclusion that the definition shouldbe clarified.

Response3:We continue to maintain that clarification ofthe definition would be helpful for thereasons set forth inthe TSD on pages 13-14, but we do not view themarginal potential for confusion inherent in the rule's current formtobe an approvability issue.

Comment4:In response toEPA's evaluation ofNAC 445B.038 ("ClassIII source" defined), NDEP agrees to propose a change in the definition to deny Class III status to sources that are subject to 40 CFRpart 63.

Response4:A change in the definition in NAC 445B.038 consistent with the draftrevision shown in attachment A to NDEP's comment letter would fullyrespond to EPA's findings related tothis definition.

Comment5:In response to EPA's evaluation ofNAC 445B.069 ("Federally enforceable" defined), NDEP agrees to propose a change in the definition to
more closely mirror the Federal definition.

Response5:Achange inthe definition in NAC 445B.069 consistent -withthe draft revision shown in attachment A to NDEP's comment letter would partially respond toEPA'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, thedraft revised version ofNAC 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 shouldbe cited in the definition ofthis term. Comment6:In response to EPA's evaluation of "Section 4 ofRegulation R096-05" ("Good engineering practice stack height" defined), NDEP intends to propose the adoption ofthe definition of "commence" asfound in 40 CFR 51.166(b)(9).

Response 6:Adoption ofa definition for the term, "commence," as shown in attachment A ofNDEP's comment letter, would fully respond to EPA's findings with respect to "Section 4 ofRegulation R096-05."

Comment 7:In response toEPA's evaluation ofNAC 445B.104 ("Motor vehicle" defined), NDEP intends to submit the statutory provision (NRS 485.050) upon which NAC 445B.104 relies.

Response8: Submittal ofNRS 485.050 ("Motor vehicle" defined) as shown in attachment B ofNDEP's comment letter would fully respond to EPA's findings with respect to NAC 445B.104. Comment9:With respect to EPA's evaluation ofNAC 445B.138 ("Potential to emit" defined), NDEP disagrees with

our conclusion that the definition must be amended andbelieves 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 todetermine PTE is clear andpracticably enforceable and does nothinder Federal enforcement under the SP.

Response9:We disagree thatthe 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 inthe proposed rule and described in more detail on pages 19-20 oftheTSD. In the proposed rule,we concluded thatthe definition of "potential toemit" in submitted rule NAG 445B.138 must berevised to require effective limits and to include criteria bywhich a limit is judged to be practicably enforceable by NDEP. In other words, PTE limits must be legally andpracticably enforceable, andthe current definition ofPTE inNAC 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 limitis determined by NDEP tobe effective as
a practical matter (examples ofsuch criteria are included in theTSD), NDEP

can address the issue ofpracticable enforcement.

Whereas the proposedrule calls for the definition in NAC 445B.138 to be amended, we now believe thatNDEP has several options for fixing the deficiency discussed above. A rule change is one option,but other options, such asthe development ofpolicy documents tobe relied upon byNDEP permitting staff to establish permit limits that are practicably enforceable,

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or some combination ofrulechange and policy guidance, could also accomplish the same overall objective. The objective is to ensure that any physical or operational limitations on the capacity ofstationary source to emit a regulated air pollutantthat is treated as part ofthe source's design for the purposes of determining PTE is bothlegally and practicably enforceable.

Comment 10:Inresponse to EPA's evaluation ofNAC 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 ofNRS 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. Comment11:With respect to EPA's evaluation ofNAC 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 thatit 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 ofour TSD, we explain that the definition of "stationary source" inNAC 445B.187 is acceptable if NDEP can explain how the submitted definition complies with CAA section 302(z) notwithstanding the exclusion ofinternal 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 otherthan nonroad engines and those used for transportation purposes, the definition is unacceptable. See CAA section 302(z).

.Forinstance, the term "nonroad engine" includes an internal " combustion engine that,by itselfor in

or on a piece ofequipment, is portable

or transportable, except where such an engine remains orwill remain at a location formore than 12 consecutive months or ashorter period oftime for an engine located at a seasonal source. See40 CFR 89.2. Where such an engine * remains orwill remain at a location for

more than 12 consecutive months (or a shorterperiod oftimefor an engine located at a seasonal source), the engine shouldbe included inthe definition of "stationary source" under NAC 445B.187, but maybe excluded in the current version ofthe definition by virtue ofthe exclusion for "special mobile equipment." For a detailed discussion ofthe applicability ofnew
source review to internal combustion engines, see 61 FR 38250, at 38306- 38307 (July23, 1996).
2. General Provisions

Comment 12:In response to EPA's evaluation ofNAC 445B.252 ("Testing and sampling"), NDEP agrees to propose
a change in the ruleto replace the term "method ofreference" with "reference method."

Response 12:The proposed change in NAC 445B.252 (as shown inattachment A to NDEP's comment letter)would fix the minor deficiency in thisrule identified byEPA onpage 23 ofthe TSD.
3. Operating Permits Generally

Comment 13:In response to EPA's evaluation ofNAC 445B.287 ("Operating permits: General requirements; exception; restriction on transfer"), NDEP agrees to submit a subsection cited, but not included, in the submitted version ofthe rule, but requests clarification from EPA asto why a title V provision, such as the cited subsection, should be inthe applicable SIP.

Response 13: We did not recognize thq missing subsection (i.e., subsection 2), which provides for an exemption from permitrevision requirements for certain Class I sources, as a title V only provisiori, but believe that itneeds to be submitted to allow for proper interpretation and application ofthe rule. Comment 14:With respect to EPA's evaluation ofNAC 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.

alimitation on the application ofthei :, exemption for agricultural equipment subject to any standard set forth in40 CFR part 63 as a minor deficiency but continue to encourage NDEP to make the suggested change. Withrespect to emergency generators, we find that adoption ofthe amendment toNAC 445B.288, as shown in attachment A to NDEP's comment letter, would fully respond toEPA's findings with respect to that issue. Comment15:With respect to EPA's evaluation ofNAC 445B.308 ("Prerequisites and conditions for issuance ofoperating permits: Environmental evaluation; compliance with control strategy; exemption from environmental evaluation"), NDEP indicates that theissue ofmultiple rule submittals has been resolved by supplemental material, entitled "Clean Copy ofthe December 8, 2006 ASIP Submittal," submitted on February 13, 2007 and re-submitted as a courtesy as attachment Cto 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 topropose amendments to NAC 445B.308(3) to refer to the criteria in NAC 445B.311(3).

Response15:We agree thatNDEP resolved the potential for confusion arising from multiple rule submittals through submittal ofthe 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. Comment16:With respect toEPA's evaluation ofNAC 445B.311 ("Environmental evaluation: Required information"), NDEP notes'that NAC 445B.083, which is cited inNAC 445B.311, isbeing submitted to EPA for action as a SIP revision. Second, NDEP attaches a commitment to obtain EPA's approval before authorizing the modification ofa model in 40 CFR part 51, appendix W.

Response16:We find that NDEP's submittal ofNAC 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 ofmodified or substitute models, we find that the submittal ofa commitment by NDEP to obtain EPA's written approval (included as attachment D toNDEP's comment letter) fails to adequately resolve this deficiency. Any such commitment such

asthe one submitted by NDEP mustbe incorporated into the SIP, and as such, mustbe 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 byNDEP does not ensure noticeto permit applicants ofthis requirement and therefore may lead to disputes over source impacts and related control technology thatcould be avoided ifthe requirement were written into the rule. Therefore, we encourage NDEP to propose an amendment to NAC 445B.311 to require EPA written approval foruse ofa modified or substitute model and tore-submit the rule, as amended, to EPA for approval

as part ofthe SIP.

Comment17: With respect to EPA's evaluation ofNAC 445B.313 ("Method for determining heat input: Class I sources"), NDEP intends topropose amendments to the rule torequire the maximum heat input tobe determined by combining themaximum 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 toNDEP'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 thereferences to 40 CFR parts 51, 52, 60, and 61. However, the amended rule still does not specify the appropriate method fordetermining heat input. As described onpage 29 of

our TSD, the appropriate method is as follows: the maximum heat input is determined by combining themaximum fuel rate, determined bythe manufacturer, with the total calorific value ofthe fuel. ASTM methods are used to determine the calorific values of fuels.

Comment 18:With respect toEPA's evaluation ofNAC 445B.326 ("Operating permits: Assertion of emergency as affirmative defense to action fornoncompliance"), NDEP states that it seems obtuse that an emission limitation, established in an integrated construction/operating permit oran operatingpernit to construct, wouldbe allowed to have an affirmative defense for an emergency under a title V operating permitbut would not be allowed to have that same defense in a SIP-based permit that established thetechnology-based limitation tobegin with.

Therefore, NDEP maintains that NAC 445B.326 is fully approvable as submitted.

Response18:Normally, an air pollution control agency issues a preconstruction permit to a new source
or modification, and the.preconstruction permit willcontain all ofthe technology-based emissionlimitations necessary for the source or modification to comply with the SIP. For certain
sources, these SlP-based emission limitations are then included intitle V operating permits. Noncompliance with such limitations cantrigger either enforcement ofthe SIP requirements or the conditions ofthe title Vpermit.

NDEP's program, in contrast, is an integrated program combining both 'preconstruction and title V operating permitrequirements. As noted onpages 31-32 of our TSD, submitted rule NAC 445B.326 is acceptable with respect to enforcement actions brought for noncompliance with title Voperating permit conditions. IfEPA were to approve it into the SIP, the affirmative defense as set forth in NAC445B.326 would also apply to the underlying SIP requirements. However, in its current form, NAC445B.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 injunctiverelief, and if adequately supported by a source, applies to both types ofclaims. EPA recognizes that, while imposition of penalties under certain circumstances may not be appropriate, SIPs must provide forattainment and maintenance ofthe NAAQS and protection ofPSD 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 onlyto penalties, andnot to injunctive relief.This restriction

ensures thatboth state and federal authorities remain able to protect the NAAQS andPSD increments.

We have published guidance to advise States onthe types ofconsiderations 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 ofNAC 445B.331 ("Request for change oflocation ofemission unit"), NDEP indicates that the provision applies to changes oflocation of an emission unitboth within the confines ofa 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 ofpermits: A normal stationary source operatingpermit or a- general operating permit. Ifthe former is chosen, the normal permitting process. occurs, and ifthe latter is chosen, the

owner or operator must obtain ageneral operating permit and request to operate at the selected location within the constraints ofthe general operating permit. Either way, an environmental evaluation is performed toensure compliance with the NAAQS. NDEP further explains that the request for approval ofa specific location under NAC 445B.331 simply allows the NDEP to evaluate the owner or operator's proposal to ensure thatthe proposal complies with the terms and conditions ofthe general operating permit. Thus, NDEP believes that no changes in this provision are warranted.

Response 19:On page 32 ofour TSD,

we concluded that NAC 445B.331 must be amended to clarify thatit only provides for changes in locations of emission units within the confines of existing sources atwhich the units are located.With NDEP's explanation summarized above, however, we now believe thatNAC 445B.331 need notbe

so limited and thatNDEP's approach to temporary sources isreasonable. Nonetheless, we conclude that amendments in NAC 445B.331 are still necessary tocarry out the approach that NDEP describes inits 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 thatone or the other type of permit is required notwithstanding the ten-day advance notice provision in the rule.
4. Class I Operating Permits
Comment20:With respectto EPA's evaluation ofNAC 445B.3363 ("Operating permit to construct: Application"), NDEP indicates that theissue ofmultiple rule submittals has been resolved by supplemental material, entitled "Clean Copy ofthe December 8, 2006 ASIP Submittal," submitted on February 13, 2007 and re-submilted as
a courtesy as attachment Cto NDEP's comment letter.

Response20:We agree that NDEP resolved the potential forconfusion arising from multiple rule submittals through submittal ofthe supplemental material on February 13, Z007.

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Comment21:With respect to EPA's evaluation ofNAC 445B.33637 ("Operating permit to construct for approval ofplantwide applicability limitation: Application"), NDEP disagrees with EPA's observation that NAC 445B.33637(1)(e) is missing text between the words "limitation" and "based."

Response21: NDEP's explanation is satisfactory, and we no longer believe that any text is missing in NAC 445B.33637(1)(e).

Comment22:With respect to EPA's evaluation ofNAC 445B.3364 ("Operating permit to construct: Review ofapplication 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 ofthe December 8, 2006 ASIP Submittal," submitted on February 13, 2007 and re-submitted as a courtesy as attachment Cto 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 ofsources,affecting those counties. Third, NDEP requests clarification with respect to federal requirements for public notice regarding lead.

Response22:First, we agree that NDEP resolved the potential for confusion arising from multiple rule submittals through submittal ofthe supplemental material on February 13, 2007.

Second, we find thatthe amendments in NAC 445B.3364 and NAC 445B.3395 shown in attachment A to NDEP's comment letteraddress the issue of providing notice to countyAPCDs but, for the purpose ofclarity, we recommend thatthe 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 publicnotice regarding lead in 40 CFR 51.161(d) can be explained by examining EPA rulemaking actions thatculminated in the language now found in40 CFR 51.161(d). These actions include EPA's proposed restructuring ofthe 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 ofthe 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 notto limitthe reporting requirement but to retain the' pre-existing requirement on States to notifyEPA ofall permitting actions, except forPb. See 51 FR40656, at 40658 (November 7, 1986). Fornew or modified sources ofPb, EPA finalized the proposed "point source" threshold for notification to EPA ofproposed permits.

Thus, since the point source threshold for Pb is 5 tons peryear in40 CFR 51.100(k)(2), the reporting requirement in 40 CFR 51.161(d), as itrelates to Pb emissions, attaches to new sources ofPb with potential to emit 5 tons per year or
more and to any modifications of such

sources that increase Pb emissions. The

use ofthe term "actual emissions" in. the definition of"point source" in40 CFR 51.100(k)(2) is not inconsistent with our interpretation above because, in the NSR context, fora source not yet constructed, "actual emissions" equal the PTE. See 40 CFR 51.166(b)(21)(iv). Comment23:With respect to EPA's evaluation ofNAC 445B.3366 ("Operating permit to construct: Expiration; extension"), NDEP agrees that a definition of "commence" and related definitions should be added to its rulebook.

Response23:We havereviewed the definitions of"commence," "necessary preconstruction approvals or permits," and "begin actual construction" as shown in attachment A to NDEP's comment letter.We findthe 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 to445B.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 theFederal definition of the same NSRterm 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 fornew ormodified 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

Comment24: With respect toEPA's evaluation ofNAC 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 noticeunder 40 CFR 51.161. NDEP asserts that implementation of a one-size-fits-all de minimis emissions approach wouldbe more susceptible to
an assertion ofbeing arbitrary and capricious, would unduly limitthe 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 wouldprohibit public notice forsources 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 ofall sources except class I sources. Onthe 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 inthis 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 ofairpollution prevention andcontrol at sources. The EPA is required to provide technical and financial assistance to States in connection with the development and execution oftheir airpollution prevention and control programs.

Response24:First, we do not interpret our regulations so as to apply the same prescriptive requirements found in 40 CFR 51.160(e) to40 CFR 51.161(a). The former requires States or local agencies to identify types-and sizes offacilities, buildings, structures, or installations which will be required to apply for apermit 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 agencyto provide the opportunity for public comment on information provided by permit applicants and onthe 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 ofpermit applications that will be subject toreview nor discuss the basis for that decision. Rather, the public review requirements apply to each and every permit action proposed by the State orlocal agency. However, ifthe State or local agency chooses to exempt
some new sources or modifications subject topermitting from public participation requirements, it must do

so consistent with the deminimis principle set forth inAla. PowerCo. 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 deminimis 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 maytailor the public participation process for less environmentally significant sources and modifications andnote that NDEP could limitmandatory public notice to a subset of Class II sources based on de minimisthresholds and allow for Director's discretion to require public noticebelow those thresholds. 6 Our objection toNDEP's current approach is theuse of100 tons per year asthe

5While the AlabamaPower court discusses th deminimisprinciple in the context ofa 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 aFederal administrative agency. With regards to the de minimisprinciple, 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 ofmaking 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 ofdegree is an important one. Unless Congress has been extraordinarily rigid, there is likely abasis for an implication ofde minimisauthority to-provideexemption when the burdens ofregulation yield a gain oftrivial or no value. That implied authority isnot available for a situation where the regulatory function doesprovide benefits, inthe sense offurthering 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 bebased noton
a general doctrine but on afair reading ofthe specific statute, itsaims and legislative history." See Ala. Power Co. v. Costle,636 F.2d 323, at 360- 361 (D.C. Cir. 1979).

6Thus, withrespect to the circumstances described by NDEP involving avery small medical waste pyrolysis facility, EPA doesnot mean to imply that, by establishing de minimisthresholds for mandatory public notice, a State should limit its discretion to require public notice for sources below such thresholds. Tothe contrary,below such thresholds, we believe it to be appropriate that a State retain authority to require public notice in light ofspecial orunusual circumstances. threshold above which public notice is mandatory given thatNDEP has provided no demonstration that 100 tons per yearrepresents an acceptable deminimislevel below which the burden ofpublic notice on sources yields a gain oftrivial or novalue. NDEP might consider lowering the mandatory publicprocess 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 deminimisprinciple.

Second, NDEP indicates that EPA has notjustified 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 ofNAC 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 ourreview ofNAC 445B.3457. NAC 445.707 [subsection (3)] requires the director to give preliminary notice ofhis intentto issue or deny a "registration certificate" for a single source within 15 days after receiving adequate information for reviewing the registration application. This obligation onthe director attaches to all applications for "registration certificates" (which are nowreferred to
as permits).

In connection with our review ofNAC 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 ordenya registration certificate tobe made public, provides for a 30-day comment period, and requires the director totake into account written public comments, among other requirements. Once again, the public noticeand 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 ofnew sources and modifications. Our conclusion in this regard does notimply that norelaxation 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 underthe deminimisprinciple 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 ofStates and local governments. We are also cognizant of EPA'sresponsibility under the CAA to
ensure that each State adopt and submit

a plan which provides for implementation, maintenance, and enforcement ofthe 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 in40 CFR part 51. Our review and action on the State's submittal ofits stationary source permitting program, including the provisions related to public notice, comport with our responsibilities underthe CAA.

Comment25:With respect to EPA's evaluation ofNAC 445B.3477 ("Class II general permit"), NDEPnotes that, under Nevada's regulations, a "general permit" is a type ofoperating permit (one issued by the Directorto cover
numerous similar stationary sources) and that requirements for ageneral 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.

Response25:On page 38 of our TSD,
we indicated that NAC 445B.3477 must identify therequirements 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 ofoperating permit (underNAC 445B.082) that, as such, is subject tothe 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 ofthe 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 ofgeneral permits (although not required to do so bytheterms ofthe rule), andhas recently drafted revisions to NAC 445B.3477.to require such public notice inthe 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 havebeen satisfactorily

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resolved except forthe environmental evaluation requirement, which has been performed in practice, but is not required by the terms ofthe rule as a prerequisite to issuing a Class II general permit. The environmental evaluation is the tool by which NDEP determines whether new ormodified sources would result in aviolation ofthe 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 Hpermit.
6. Other Issues

Comment26:With respect to EPA's suggestion to add the phrase "as incorporated byreference" to a number ofrules to be consistent with the use of that phrase in otherrules, NDEP plans to review the use ofthe phrase throughout chapter 445B ofthe NAC for consistency and amend as appropriate.

Response26:This is acceptable. As noted on page 53 ofthe TSD, we view this issue as one for which clarification is warranted but notas one that affects approvability ofthe submittal.
D.Rescissionsof Permitting-Related RulesFromApplicableSIP

Comment27:NDEP agrees with our proposalto disapprove certain rescissions, and to approve certain other rescissions, ofpermit-related provisions inthe existing SIP. NDEP also provides additional background information supporting our proposed approval ofthe rescission request for NAQR article 13.1.3(3), andidentifies public process documentation for rescission ofNAQR article 13.1.3(3) and NAC 445.706(2) in previously-submitted materials.

Response27:Intoday's action, we are finalizing our disapproval ofthe rescissions ofNAQR article 1.60 ("Effective date"), NAQR article 1.72 ("Existing facility"), and NAC 445.715 ("Operatingpermits: revocation") from the applicable SIP. We are disapproving the rescissions ofthese three provisions because, as described on pages 55-59 of the TSD,the provisions are relied upon by otherrules that remain inthe applicable SIP. NAQR article 1.72 and NAC 445.715 may berescinded 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 offees") from the applicable SIP. Our rationale for approving the rescission of these two provisions is provided on pages 56-58 ofthe TSD. In short, we are -approvingthe rescission ofNAC article 13.1.3(3) because controls representing "best available control technology" (BACT) are not required for minor

sources and minor modifications, rescission ofthe minor source BACT requirement would not have a retroactive effect, rescission would only affect a subset (notall) ofnew minor sources, and we find noevidence that NDEP is relying on'the BACT requirement in article 13.1.3(3) to maintain theNAAQS in any area. We

are approving the rescission ofNAC 445.706(2) because permit fee rules are no longer a SIP requirement in areas, such as those under NDEPjurisdiction, thathave an approved title V program.

We do not agree with NDEP that a review ofregulatory history clearly shows thatthe 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 tothe

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 betriggered at 100 tons per year in attainment areas, thereby extending the applicability of BACT beyond that required under PSD (except forcertain source categories for which a 100 tonper year threshold applies under PSD). Notwithstanding

our disagreement with NDEP regarding the State's intentin adopting the BACT requirement, we are finalizing the rescission ofthe requirement from the applicable Nevada SIP forthe reasons set forth in our TSD and summarized above.

In our proposed rule, we indicated that our approval ofthe rescissions of these two provisions was contingent upon receipt ofpublic notice and hearing documentation fromthe State. See 73 FR 19144 (April 17, 2007). In response, NDEPhas 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, andthat 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 ofthe public process documentation identified bythe State,

we find thatthe State has met the contingency placed by us on the proposed approval ofthe requested rescissions ofthese two provisions from the applicable SIP.
IV. EPA Action

In its comment letter dated August 17, 2007, NDEP explains how itintends to remedy many ofthe deficiencies in the State's rules thatgovern application for, and issuance of,permits to stationary sofirces and that EPA identified inthe April 17, 2007 proposed rule, but several important deficiencies, such as insufficient publicnotice, 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 ofrules, our final action relates to amended rules submitted by NDEP on August 20, 2007 rather than the versions ofthe corresponding rules submitted earlier and included inour April 17, 2007 proposal (see Table 4, above).

Therefore, for thereasons setforth in
ourproposed rule and TSD, as clarified in theresponses to comments in this document, we are taking final action to approve certain revisionsto 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 ofplants to generate electricity using steam produced by burning offossil 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 fromthe applicable SIP ofNAQR article 13, subsection 13.1.3(3), i.e., theminor

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 thebulk ofthe permitting program (see table 1, above); all ofthe submitted rules that comprise NDEP's stationary

source permitting program (see tables 2 and 4, above); the two statutory

7Final approval of theserules supersedes the following rules in the applicable SIP(superseding rules shown in parentheses) upon the established compliance date for anynew oramended requirements in the superseding rules: NAC 445B.22083, as submitted on November30, 2003 (NAC 445B.22083); NAQR article 2.16.1 (NAC 445B.250); and NAC 445.682 (NAC445B.252). 20547

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provisions listed in table 4; andthe rescissions ofthree existing SIP rules as listed in table 3, above. Our disapproval ofthese 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 notrequired under the Clean Air Act to submit its updated stationary source permitting program to EPA for approval.8

Section 553 ofthe Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good

cause finds that notice andpublic procedure are impracticable, unnecessary, or contrary tothe public interest, the agency may issue a rule without providing notice and an , opportunity forpublic comment. We have determined that there is such good

cause for making our approval oftwo rules (i.e., NAC 445B.22083 and NAC 445B.250) and our disapproval ofthe other rules submitted byNDEP on August 20, 2007 (see table 4, above) final without priorproposal and opportunity forcomment because the rules arein substance the same asthose that they supersede and forwhich public notice and comment was provided inour April 17, 2007 proposed rule. Good cause also exists for final disapproval ofthe two statutory provisions submitted onAugust 20, 2007 without priorproposal and opportunity for comment because both

were adequately described in theApril 17, 2007 proposed rule and clearly related to the overall program forwhich

we proposed disapproval and forwhich

we are taking final action to disapprove in this document. Thus, notice and public procedure for our action onthe statutory provisions and amended rules contained inNDEP's August 20, 2007 SIP submittal areunnecessary. 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 toreview by the Office ofManagement and Budget. For this reason, this action is alsonot 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 asmeeting

aInthis context, we arereferring to NDEP's programfor issuing pre-construction permits for all
newsources and modifications other than those for which partC (i.e., PSD) orpart D(i.e., Nonattainment NSR)oftitle Iofthe CAA apply. Federal requirements and imposes no additional requirements. Accordingly, theAdministrator certifies that this rule will not have a significant economic impact on a substantial number ofsmall entities under theRegulatory Flexibility Act (5 U.S.C. 601 etseq.). 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 of1995 (Pub.L. 104-4).

This rule also does not have tribal implications because it will nothave a substantial direct effect onone or more Indian tribes, on the relationship between theFederal Government and Indian tribes, or onthe distribution of power and responsibilities between the Federal Government and Indian tribes,

as specified byExecutive 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 therelationship between the national government and the States, oron the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64FR 43255, August 10, 1999). This action merely approves or disapproves statelaw implementing a Federal standard, and does not alter the relationship orthe distribution ofpower and responsibilities established in the Clean Air Act. This rule alsois notsubject to Executive Order 13045 "Protection of Children fromEnvironmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because it is not economically significant.

Inreviewing SIP submissions, EPA(s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, inthe absence of aprior existing requirement for the State to usevoluntary consensus standards (VCS),EPA has no authority to disapprove a SIP submission for failure touse VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews a SIP submission, to use VCS inplace ofa SIP submission that otherwise satisfiesthe provisions of the CleanAir Act. Thus, the requirements of section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. Thisrule does not impose an information collection burden under the provisions ofthe Paperwork Reduction Actof 1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore arule may take effect, the agency promulgating therule must submit a rule report, which includes a copy ofthe rule,to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General oftheUnited States prior to publication ofthe rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a "major rule" as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed inthe United States Court ofAppeals forthe appropriate circuitbyJune 16, 2008. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend thetime within which a petition forjudicial review maybe filed, and shall notpostpone the effectiveness of such rule or action. This action may not be challenged laterin proceedings to. enforce its requirements. (See section 307(b)(2).)
List ofSubjects in40 CFRPart 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, RegionIX. E Part 52, chapter I,title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52--[AMENDED]

m1. The authoritycitation forpart 52 continues toread as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart DD-Nevada

0 2. Section52.1470 is amendedby 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) ofthis

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section and now deleted without replacement: Nevada Air Quality Regulations (NAQR) article 13.1.3(3).

* * * * *



### .(25) * * * (vi)Previously approved onMarch 27, 1984, in paragraph (c)(25)(i)(A) ofthis section and now deleted without replacement: Nevada Administrative Code (NAC) section 445.706(2).

* * * * *

(56) * * * 

### (i)* * * 

### (A) * * * (9) The following sections ofChapter 445B ofthe Nevada Administrative Code were adopted on the dates listed inparagraph (c)(56)(i)(A)(9) ofthis section:

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

* * * * *

(67) New or amended regulations

were submitted onAugust 20, 2007 by the Governor's designee.

(i) Incorporation by reference. (A)Nevada Division ofEnvironmental Protection.

(1)Nevada Administrative Code (January 2007 codification by the Legislative Counsel Bureau) section 445B.22083, "Construction, major modification or relocation ofplants to generate electricity using steam produced by burning offossil 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.

* * * * * [FRDoc. E8-8139 Filed 4-15-08; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF HOMELAND SECURITY '

Federal Emergency Management Agency

44CFR Part 206 [Docket IDFEMA-2008-0003]
RIN 1660-AA59
Disaster Assistance; Change in Federal Share forAlternate Projectsfor 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 DisasterRelief andEmergency Assistance Act (the Stafford Act) made by the Security and Accountability For Every Port Act of2006 (the SAFE Port Act). The first change amends the percentage oftheFederal contribution for alternate projects from 75 percent to 90 percent oftheFederal share ofthe Federal estimate ofeligible costs for public facilities. The second change

removes language that provided for Federal funding of90 percent ofthe Federal share ofthe approved Federal estimate ofeligible costs for alternate projects inareas with unstable soil. These changes are technical and conforming amendments that revise FEMA's regulations toconform 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 ofthe Robert T. Stafford Disaster Relief andEmergency 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 notbest 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; orto 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 ofthe Security and Accountability For Every Port Act of 2006 (SAFE PortAct), Public Law 109- 347, 120 Stat. 1884, October 13, 2006, amended section 406(c)(1) ofthe Stafford Act bychanging the Federal contribution for alternate projects for State and local government applicants from "75 percent oftheFederal share" ofthe eligible costs for public facilities to "90 percent ofthe Federal share" of the eligible costs for public facilities. Accordingly FEMA is revising 44 CFR 206.203(d)(2)(ii) toreflect this statutorily mandated percent share increase forpublic facilities.

Because Congress made this change forpublic facilities, but made no change to the 75percent contribution for private nonprofit applicants' alternate projects, FEMA is adding anew paragraph to separately address th6 Federal contribution for private nonprofit facilities, which remains at 75 percent.

Section 609 ofthe SAFE PortAct also struckformer section 406(B) ofthe Stafford Act, whichprovided for Federal funding of90 percent ofthe Federal share ofthe approved Federal estimate ofeligible costs ofalternate' projects in areas with unstable soil. Because Congress removed this authority from the Stafford Act and because FEMA will already be providing funding of90 percent ofthe Federal share ofthe approved Federal estimate to State and local governments regardless ofthe stability ofthe 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), anotice ofa proposed rulemaking is not necessary to revise a regulation ifthe agency finds forgood

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 serveno useful purpose, as therevision to the regulation is mandated bythe change to FEMA's statutory authority, and FEMA has no discretion to alter this statutory mandate. Forthese reasons, FEMA also finds that it has good cause not to delay the effective date ofthis rule under 5 U.S.C. 553(d)(3).
Executive Order12866, as Amended, Regulatory Planning andReview

FEMA has prepared andreviewed this rulemaking under the provisions of Executive Order 12866, 58 FR 51735, Oct. 4, 1993, and as amended. Under Executive Order 12866, a significant regulatory action is subject to the Office 

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