75690 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules 

Exemptions (40 CFR 52.21(x) and (y)) 

and Pollution Control Projects (40 CFR 

52.21(z)). 

V. Statutory and Executive Order 

Reviews 

Executive Order 12866; Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. 

Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Because it is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 or a ‘‘significant energy 

action,’’ as that term is defined in 

Executive Order 13211, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). 

Regulatory Flexibility Act 

This proposed action merely proposes 

to approve State law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

State law. Accordingly, the 

Administrator certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). 

Unfunded Mandates Reform Act 

Because this rule proposes to approve 

pre-existing requirements under State 

law and does not impose any additional 

enforceable duty beyond that required 

by State law, it does not contain any 

unfunded mandate or significantly or 

uniquely affect small governments, as 

described in the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4). 

Executive Order 13175 Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed rule does not have 

tribal implications because it will not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(59 FR 22951, November 9, 2000). 

Executive Order 13132 Federalism 

This action does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

proposes to approve a State rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. 

Executive Order 13045 Protection of 

Children From Environmental Health 

and Safety Risks 

This proposed rule also is not subject 

to Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

‘‘economically significant’’ under 

Executive Order 12866. 

National Technology Transfer 

Advancement Act 

In reviewing SIP submissions, EPA’s 

role is to approve State choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

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

272 note) do not apply. 

Paperwork Reduction Act 

This proposed rule does not impose 

an information collection burden under 

the provisions of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: December 1, 2006. 

Kerrigan G. Clough, 

Acting Regional Administrator, Region 8. 

[FR Doc. E6–21502 Filed 12–15–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2006–0926; FRL–8257–6] 

Approval and Promulgation of 

Implementation Plans; Revisions to the 

Nevada State Implementation Plan; 

Excess Emissions Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing two actions 

related to excess emissions provisions 

that were previously approved by EPA 

into the Nevada Department of 

Conservation and Natural Resources 

portion of the Nevada State 

Implementation Plan. These proposed 

actions include approval of a State 

request for rescission of certain 

provisions related to excess emissions 

and correction of an error made by the 

Agency in approving another provision 

also related to excess emissions. We are 

proposing to correct the error by 

disapproving the previously approved 

provision and thereby deleting the 

provision from the plan. The proposed 

approval of the rescission request is 

contingent upon receipt of certain 

public notice and hearing 

documentation from the State of 

Nevada. EPA is proposing these actions 

under the Clean Air Act authority to 

correct errors in approving, and 

obligation to take action on, State 

submittals of revisions to state 

implementation plans. The intended 

effect is to correct a past error in 

approving a particular provision into 

the plan and to allow for the rescission 

of closely-related provisions. EPA is 

taking comments on this proposal and 

plans to follow with a final action. 

DATES: Any comments must arrive by 

January 17, 2007. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09–

OAR–2006–0926, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 


jlentini on PROD1PC65 with PROPOSAL
Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules 75691 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or e-mail. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send e-mail 

directly to EPA, your e-mail address 

will be automatically captured and 

included as part of the public comment. 

If EPA cannot read your comment due 

to technical difficulties and cannot 

contact you for clarification, EPA may 

not be able to consider your comment. 

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Julie 

A. Rose, EPA Region IX, (415) 947–

4126. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Which Provisions Are Covered by This 

Proposal? 

II. What Is the Background for This Proposal? 

III. How Are We Evaluating These 

Provisions? 

IV. What Are Our Proposed Actions on These 

Provisions? 

A. NAC 445.667 

B. NAQR Article 2.5.4 

V. Proposed Actions, Public Comment and 

Final Actions 

VI. Statutory and Executive Order Reviews 

I. Which Provisions Are Covered by 

This Proposal? 

This document provides notice of 

EPA’s proposed actions on the following 

State rules approved by EPA under 

section 110 of the Clean Air Act (CAA 

or ‘‘Act’’) and thereby made a part of the 

applicable state implementation plan 

(SIP) for the State of Nevada. 

Rule No. Title or text Submittal date Most recent approval date 

and FR cite 

NAC 445.677 ............................. Excess emissions: Scheduled maintenance; testing; malfunctions.10/26/82 03/27/84 at 49 FR 11626. 

NAQR Article 2.5.4 .................... ‘‘Breakdown or upset, determined by the Director to be unavoidable and not the result of careless or marginal operations, shall not be considered a violation of these regulations’’.10/31/75 01/09/78 at 43 FR 1341. 

II. What Is the Background for This 

Proposal? 

In January 1972, in response to the 

Clean Air Amendments of 1970, the 

Governor of Nevada submitted the 

original SIP to EPA for approval. EPA 

approved certain portions of the original 

SIP and disapproved other portions 

under section 110(a) of the CAA. See 37 

FR 10842 (May 31, 1972) and 40 CFR 

52.1470(b). For some of the disapproved 

portions of the original SIP, EPA 

promulgated substitute provisions, 

referred to as Federal implementation 

plan (FIP) provisions, under section 

110(c) of the Act. See, e.g., EPA’s final 

rule at 38 FR 7270 (February 25, 1974) 

in which EPA established provisions for 

review of new or modified indirect 

sources. 

This original SIP included various 

rules, codified as articles within the 

Nevada Air Quality Regulations 

(NAQR), and various statutory 

provisions codified in title 40, chapter 

445 of the Nevada Revised Statutes 

(NRS). In the early 1980’s, Nevada 

reorganized and re-codified its air 

quality rules as sections within chapter 

445 of the Nevada Administrative Code 

(NAC). Today, Nevada codifies its air 

quality regulations in chapter 445B of 

the NAC and codifies air quality statutes 

in chapter 445B of title 40 of the NRS. 

The original SIP, approved by EPA in 

May 1972, included NAQR article 2.5 

(‘‘Scheduled Maintenance, Testing, and 

Breakdown or Upset’’), which contained 

what are referred to as ‘‘excess 

emissions’’ or ‘‘malfunction’’

provisions. Herein, we use the term 

‘‘excess emissions,’’ and in this context, 

‘‘excess emissions’’ means emissions of 

an air pollutant in excess of an emission 

standard. NAQR article 2.5, as approved 

by EPA in May 1972, reads: 

2.5 Scheduled Maintenance, Testing, and 

Breakdown or Upset: 

2.5.1 Scheduled maintenance, testing 

approved by the control officer, or 

repairs which may result in emission of 

air contaminants prohibited by these 

regulations shall be performed during a 

time designated by the control officer as 

being favorable for atmospheric 

ventilation. 

2.5.2 The control officer shall be notified 

in writing on the time and expected 

duration at least 24 hours in advance of 

any scheduled maintenance which may 

result in emission of air contaminants 

prohibited by these regulations. 

2.5.3 The control officer shall be notified 

within 24 hours after any breakdown or 

upset. 

2.5.4 Breakdown or upset, determined by 

the control officer to be unavoidable and 

not the result of careless or marginal 

operations, shall not be considered a 

violation of these regulations. 

The State of Nevada amended NAQR 

article 2.5, and submitted the amended 

versions to EPA, at various times during 

the 1970’s and early 1980’s. In January 

1978, EPA approved amended versions 

of subsections 2.5.1, 2.5.2, and 2.5.4 that 

had been submitted on October 31, 1975 

(see 43 FR 1341, January 9, 1978 and 40 

CFR 52.1470(c)(11)) and, later that year, 

approved an amended version of 

subsection 2.5.3 that had been 

submitted on December 10, 1976 (see 43 

FR 36932, August 21, 1978 and 40 CFR 

52.1470(c)(12)). The amendments to 

article 2.5 approved in 1978 involved 

minor changes, such as the replacement 

of the term ‘‘control officer’’ with the 

term ‘‘Director’’ and the specification of 

a phone number for notifying the 

Director of the occurrence of breakdown 

or upset conditions. 

In 1982, the State of Nevada amended, 

re-codified, and submitted NAQR article 

2.5 as NAC 445.667 (‘‘Excess emissions: 

scheduled maintenance; testing; 

malfunctions’’) and NAC 445.668 

(‘‘Excess emissions: Determination of 

fault’’). NAC 445.667 reflected minor 

revisions to the reporting requirements 

of former NAQR article 2.5 (i.e., 

subsections 2.5.1, 2.5.2, and 2.5.3) but 

also included a new paragraph requiring 

owners and operators to provide within 

15 days after any malfunction, 

breakdown, upset, startup or human 


jlentini on PROD1PC65 with PROPOSAL
75692 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules 

1The January 12, 2006 SIP submittal superseded 

in part an earlier SIP submittal dated February 16, 

2005. The January 12, 2006 SIP submittal was not 

a complete re-submittal of the earlier submittal in 

that it did not include the documentation of public 

notice and hearing for new or amended rules 

adopted prior to 2005. CAA section 110(l) requires 

reasonable notice and public hearing prior to 

adoption of SIP revisions by States for subsequent 

submittal to EPA for approval or disapproval under 

CAA section 110(k)(3). 

2CAA section 110(l) prohibits EPA from 

approving any SIP revision that would interfere 

with any applicable requirement concerning 

attainment and reasonable further progress, or any 

other applicable requirement of the CAA. CAA 

section 193 prohibits modifications in control 

requirements that were in effect before the Clean 

Air Act Amendments of 1990 in any nonattainment 

area unless the modification insures equivalent or 

greater emission reductions of the nonattainment 

pollutant. 

error ‘‘sufficient information’’ to enable 

the director to determine the 

seriousness of the excess emissions and 

specifying what constituted ‘‘sufficient 

information’’. In 1984, we approved 

NAC 445.667 and thereby effectively 

replaced all of NAQR article 2.5 in the 

applicable Nevada SIP except for 

subsection 2.5.4. See 49 FR 11626 

(March 27, 1984). In contrast to NAC 

445.667, EPA took no action to approve 

or disapprove NAC 445.668, the recodified version of NAQR article 2.5.4. 

Thus, the excess emissions provisions 

in the applicable SIP currently include 

NAC 445.667, as approved in March 

1984, and NAQR 2.5.4, as approved in 

January 1978. 

In a SIP revision submittal dated 

January 12, 2006, the Governor’s 

designee for SIP matters, the Nevada 

Division of Environmental Protection 

(NDEP), requested rescission of many 

rules from the applicable SIP, including 

NAC 445.667.1 As discussed below, we 

are proposing to approve this request 

because of its connection to NAQR 

article 2.5.4, which we approved in 

error into the SIP, and for which we are 

now proposing disapproval. 

NDEP has not requested rescission of 

NAQR article 2.5.4 from the applicable 

SIP. We propose, however, as discussed 

below, to initiate action herein to 

disapprove this previously-approved 

provision under CAA section 110(k)(6), 

which expressly provides EPA with 

authority to correct errors in prior SIP 

approvals, and thereby delete NAQR 

article 2.5.4 from the applicable SIP. In 

doing so, we find that approval of 

NAQR article 2.5.4 into the SIP in 1972, 

and then again in amended form, in 

1978, was an error because NAQR 

article 2.5.4, which exempts certain 

occurrences of excess emissions from 

the potential for enforcement at the 

discretion of NDEP, is not consistent 

with attainment and maintenance of the 

national ambient air quality standards 

(NAAQS) nor with the regulatory 

framework of the Act, which gives EPA 

and citizens independent authority to 

enforce emissions limitations and other 

requirements approved into the SIP. 

III. How Are We Eealuating These 

Provisions? 

Under CAA sections 110(k)(2) and (3), 

EPA is obligated to approve or 

disapprove (in whole or in separable 

part) submittals by States of SIPs and 

SIP revisions found or deemed to be 

complete, and under CAA section 

110(k)(6), EPA has the authority to 

correct errors made by the Agency in 

approving such SIPs and SIP revisions. 

EPA has reviewed the State’s request for 

rescission of certain excess emissions 

provisions and considered the removal 

of another excess emissions provision 

for compliance with the CAA 

requirements for SIPs in general set 

forth in CAA section 110(a) and 40 CFR 

part 51 (particularly, subpart K ‘‘Source 

Surveillance’’) and also for compliance 

with CAA requirements for SIP 

revisions in CAA section 110(l) and 

193.2 We have also applied the 

principles set forth in the following EPA 

policy memoranda (collectively, ‘‘excess 

emissions policy memoranda’’): 

• ‘‘Policy on Excess Emissions During 

Startup, Shutdown, Maintenance, and 

Malfunctions’’ from Kathleen M. 

Bennett, Assistant Administrator for 

Air, Noise and Radiation, dated 

September 28, 1982; 

• ‘‘Policy on Excess Emissions During 

Startup, Shutdown, Maintenance, and 

Malfunctions’’ from Kathleen M. 

Bennett, Assistant Administrator for 

Air, Noise and Radiation, dated 

February 15, 1983; 

• ‘‘State Implementation Plans (SIPs): 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ from Steven A. Herman, 

Assistant Administrator for Enforcement 

and Compliance Assurance, and Robert 

Perciasepe, EPA Assistant 

Administrator for Air and Radiation, 

dated September 20, 1999; and 

• ‘‘Re-Issuance of Clarification—State 

Implementation Plans (SIPs): Policy 

Regarding Excess Emissions During 

Malfunctions, Startup, and Shutdown’’

from Eric Schaeffer, Director, Office of 

Regulatory Enforcement and John S. 

Seitz, Director, Office of Air Quality 

Planning and Standards, dated 

December 5, 2001. 

IV. What Are Our Proposed Actions on 

These Provisions? 

A. NAC 445.667 

NAC 445.667 establishes reporting 

requirements under two circumstances 

involving the potential or the 

occurrence of excess emissions. First, 

NAC 445.667 requires advance notice to 

the Director of any scheduled 

maintenance or repairs that may result 

in excess emissions. Second, NAC 

445.667 requires the Director to be 

notified within certain prescribed 

periods of any excess emissions that 

occur after any malfunction of process 

or pollution control equipment or 

during startup of such equipment. 

Upon review of CAA section 110(a)(2) 

and 40 CFR part 51, subpart K (‘‘Source 

Surveillance’’), we find that the episodic 

reporting of excess emissions required 

under NAC 445.667 generally supports 

enforceability of the SIP and protection 

of the NAAQS. However, a review of the 

text of the excess emissions provisions 

themselves and the regulatory history of 

the State’s submittals and EPA actions 

(or inaction as the case may be) on 

NAQR article 2.5, NAC 445.667, and 

NAC 445.668 convinces us that NAC 

445.667 should not be separated from 

NAQR article 2.5.4 for the purposes of 

SIP actions under CAA section 110(k)(3) 

and related error corrections under CAA 

section 110(k)(6). Note, for example, 

that NAC 445.667 and NAC 445.668 

were originally codified as subsections 

within a single rule, NAQR article 2.5, 

‘‘Scheduled Maintenance, Testing, and 

Breakdown or Upset.’’

CAA section 110(k)(3) provides for 

full or partial approvals and 

disapprovals of SIP submittals. We 

consider ‘‘separable’’ portions of SIP 

submittals to be eligible for separate 

action under CAA section 110(k)(3). By 

‘‘separable,’’ EPA means that the action 

it anticipates taking will not result in 

the approved rule(s) being more 

stringent than the State anticipated. See 

EPA memorandum from John Calcagni, 

Office of Air Quality Planning and 

Standards, entitled ‘‘Processing of State 

Implementation Plan (SIP) Submittals,’’

dated July 9, 1992. In the context of an 

error correction under CAA section 

110(k)(6), we apply the principle of 

being separable to avoid a result in 

which the approved rule(s) in the SIP 

becomes more stringent than the State 

anticipated upon our removal of another 

rule or portion of that rule. In this case, 

we believe that the State intended the 

two excess emissions rules, i.e., 

reporting provisions of NAC 445.667 

and the determination of fault 

provisions of NAQR article 2.5.4, to be 

considered together as a single 


jlentini on PROD1PC65 with PROPOSAL
Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules 75693 

3EPA’s interpretation of section 110 in the 

context of State excess emissions provisions has 

been upheld by the United State Court of Appeals 

for the Sixth Circuit in Michigan Mfrs. Ass’n v. 

Browner, 230 F.3d 181 (6th Cir. 2000). 

4Under CAA section 302(k), the terms ‘‘emission 

limitation’’ and ‘‘emission standard’’ mean a 

requirement established by the State or the 

Administrator which limits the quantity, rate, or 

concentration of emissions of air pollutants on a 

continuous basis, including any requirement 

relating to the operation or maintenance of a source 

to assure continuous emission reduction, and any 

design, equipment, work practice or operational 

standard promulgated under this chapter. 

regulatory scheme whereby owners and 

operators can avoid enforcement 

proceedings triggered by excess 

emissions due to malfunctions if they 

follow the related reporting 

requirements and take the necessary 

remedial steps. In other words, we 

believe the State did not intend the 

excess emissions reporting requirements 

for malfunctions to exist independently 

in the SIP from the related 

determination of fault provisions. 

Given the connection between NAQR 

article 2.5.4 and NAC 445.667, 

therefore, and because we erred in 

approving (and are proposing 

disapproval of) the former, as discussed 

below, we propose to approve the 

State’s request for rescission of the 

latter. Neither the January 12, 2006 SIP 

revision submittal nor the February 16, 

2005 SIP revision submittal (that the 

latter submittal replaced in part) 

included public participation 

documentation for this requested 

rescission, thus, our proposed approval 

of the rescission of NAC 445.667 from 

the SIP is contingent upon receipt of 

public notice and hearing 

documentation from the State of 

Nevada. Such documentation is 

required under CAA section 110(l) for 

all SIP revisions. 

We note that approval of the 

rescission request for NAC 445.667 

would have no effect on excess 

emissions reporting requirements that 

apply to stationary sources under other 

SIP rules, under 40 CFR part 60 

(‘‘Standards of performance for new 

stationary sources’’), or 40 CFR parts 61 

(‘‘National emission standards for 

hazardous air pollutants’’) and 63 

(‘‘National emission standards for 

hazardous air pollutants for source 

categories’’). 

B. NAQR Article 2.5.4 

NAQR article 2.5.4 allows the Director 

(which, in this context, refers to NDEP) 

to exempt from enforcement certain 

excess emissions due to malfunction. 

NDEP’s discretion in this regard is 

limited to conditions that NDEP 

determines to be unavoidable and not 

the result of careless or marginal 

operations but can be used to exempt 

such excess emissions from any source 

under NDEP jurisdiction regardless of 

the source’s potential to cause or 

contribute to violations of the NAAQS. 

NAQR article 2.5.4 does not limit the 

duration of the exemption nor include 

any provisions that serve to protect 

ambient air quality during the 

exemption period for the purpose of 

avoiding violations of the NAAQS. 

EPA’s long-standing position is that 

provisions such as NAQR article 2.5.4 

are not consistent with the fundamental 

purpose of a SIP, which as set forth in 

CAA section 110(a)(1) is to provide for 

implementation, maintenance, and 

enforcement of the NAAQS. See 42 FR 

21472 (April 27, 1997), 42 FR 58171 

(November 8, 1977), and EPA’s excess 

emissions policy memoranda.3 We view 

all excursions above SIP emission limits 

as violations because the purpose of SIP 

limits are to protect the NAAQS, and 

thus, any emissions above such limits 

may cause or contribute to violations of 

the NAAQS. 

Moreover, SIPs must include 

enforceable emission limitations (see 

CAA section 110(a)(2)(A)), and Congress 

intended such limitations to be 

continuous in nature. See the definition 

of ‘‘emission limitation’’ in CAA section 

302(k).4 Allowing the Director to 

exempt from enforcement incidents 

during which emissions exceed the 

underlying emissions limitation means 

that none of the emission limitations in 

the SIP otherwise subject to 

enforcement under State law and the 

Clean Air Act are truly continuous in 

nature but rather may be discontinued 

for indefinite periods by the Director. 

Lastly, by leaving enforcement of the 

underlying emission limitation in the 

sole hands of the Director of the State 

air pollution agency without explicit 

limits to his/her discretion, NAQR 

article 2.5.4 conflicts with the regulatory 

structure of the Clean Air Act, which is 

intended to provide for independent 

enforcement by EPA and citizens of 

emissions limitations and other 

requirements approved by EPA into 

SIPs. See, generally, CAA sections 113 

(‘‘Federal enforcement’’) and 304 

(‘‘Citizen suits’’). The purpose of SIPs to 

protect the NAAQS, the continuous 

nature of emissions limitations, and the 

independent authorities for EPA and 

citizen represent core elements of the 

Clean Air Act from as far back as the 

Clean Air Amendments of 1970. Thus, 

our approvals of NAQR article 2.5.4 as 

part of the Nevada SIP on May 31, 1972 

(37 FR 10842), and then again, in 

amended form, on January 9, 1978 (43 

FR 1341) were clearly in error. 

Section 110(k)(6) of the Clean Air Act, 

as amended in 1990, provides, 

‘‘Whenever the Administrator 

determines that the Administrator’s 

action approving, disapproving, or 

promulgating any plan or plan revision 

(or part thereof), area designation, 

redesignation, classification or 

reclassification was in error, the 

Administrator may in the same manner 

as the approval, disapproval, or 

promulgation revise such action as 

appropriate without requiring any 

further submission from the State. Such 

determination and the basis thereof 

shall be provided to the State and the 

public.’’

We interpret this provision to 

authorize the Agency to make 

corrections to a promulgated regulation 

when it is shown to our satisfaction (or 

we discover) that (1) We clearly erred in 

failing to consider or in inappropriately 

considering information made available 

to EPA at the time of the promulgation, 

or the information made available at the 

time of promulgation is subsequently 

demonstrated to have been clearly 

inadequate, and (2) other information 

persuasively supports a change in the 

regulation. See 57 FR 56762, at 56763 

(November 30, 1992). 

In this instance, we have found clear 

error in our 1972 and 1978 approvals of 

NAQR article 2.5.4 as a part of the 

Nevada SIP because at the time of our 

1972 and 1978 actions approving this 

rule, the Clean Air Act required SIPs to 

implement, maintain, and enforce the 

NAAQS through continuous emissions 

limitations and provided for a 

regulatory scheme whereby EPA and 

citizens have enforcement authority 

separate from that of the State; whereas, 

NAQR article 2.5.4 provides for 

discontinuance of emission limitations 

under certain conditions without regard 

to protection of the NAAQS. Further, by 

determining that excess emissions are 

not a violation of the SIP, the Director 

can at his discretion cut off EPA or 

citizen enforcement of the underlying 

emissions limitation thereby 

confounding the regulatory scheme 

promulgated by Congress in the Clean 

Air Act. We also find that continued 

presence of NAQR article 2.5.4 in the 

applicable Nevada SIP undermines 

enforceability of the SIP and is 

potentially harmful to the environment. 

Therefore, under CAA section 

110(k)(6), we are proposing to correct 

our errors in approving NAQR article 

2.5.4 as part of the Nevada SIP on May 

31, 1972 (37 FR 10842) and on January 

9, 1978 (43 FR 1341) by disapproving 

the previously approved versions of the 

rule and thereby deleting the rule from 

the applicable SIP. If finalized as 


jlentini on PROD1PC65 with PROPOSAL
75694 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules 

5We note that our proposed action herein of 

disapproving a previously approved excess 

emissions rule is consistent with actions we have 

taken on similar excess emissions provisions in 

other portions of the Nevada SIP and in other SIPs. 

For example, in 1981, we disapproved section 12, 

an excess emissions rule adopted by Clark County 

(that we had previously approved as part of the 

Clark County portion of the Nevada SIP) on similar 

grounds as described herein. See 46 FR 43141 

(August 27, 1981) and 69 FR 54006 (September 7, 

2004). In 1978, we disapproved similar excess 

emissions rules adopted by 22 different air 

pollution control districts in the State of California 

and, in some instances, reversed previous approvals 

of prior versions of those rules. See 43 FR 33915 

(August 2, 1978). 

proposed, we will codify the error 

correction by amending 40 CFR 

52.1470(b), 52.1470(c)(11), and 52.1483 

accordingly.5

V. Proposed Actions, Public Comment 

and Final Actions 

Under section 110(k)(3) of the CAA, 

EPA is proposing approval of a request 

by the State of Nevada for rescission of 

NAC 445.667 (‘‘Excess emissions: 

Scheduled maintenance; testing; 

malfunctions’’) from the applicable SIP 

because of the connection between NAC 

445.667 and NAQR article 2.5.4, which 

we approved in error and for which we 

are proposing disapproval. 

EPA is also proposing, under section 

110(k)(6) of the CAA, to correct errors 

made by the Agency in approving 

NAQR article 2.5.4 in 1972 and again in 

1978 as part of the applicable SIP by 

disapproving the previously approved 

versions of the rule and thereby deleting 

NAQR article 2.5.4 from the applicable 

SIP. We are proposing this correction 

because the subject rule provides an 

exemption from enforcement at the 

State’s discretion for certain excess 

emissions and is thereby inconsistent 

with the fundamental purpose of the 

SIP, which is to provide for 

implementation, maintenance, and 

enforcement of the NAAQS, 

inconsistent with Congressional intent 

for continuous emission limits, and 

inconsistent with the regulatory 

structure of the Clean Air Act which 

provides for independent enforcement 

authority by EPA and citizens. 

We will accept comments from the 

public on this proposal for the next 30 

days. Unless we receive convincing new 

information during the comment period, 

we intend to publish a final rule that 

will rescind NAC 445.667, and that will 

delete NAQR article 2.5.4, from the 

applicable Nevada SIP, and to codify the 

latter action by amending 40 CFR 

52.1470(b), 52.1470(c)(11), and 52.1483 

accordingly. 

VI. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

action is not a ‘‘significant regulatory 

action’’ and therefore is not subject to 

review by the Office of Management and 

Budget. For this reason, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely proposes 

to delete previously approved state rules 

that, viewed collectively, fail to meet 

Federal requirements and imposes no 

additional requirements. Accordingly, 

the Administrator certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). Because this rule proposes to 

rescind or delete pre-existing 

requirements under state law and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4). 

This proposed rule also does not have 

tribal implications because it will not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

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

proposed action also does not have 

Federalism implications because it does 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

proposes to delete previously approved 

state rules that, viewed collectively, fail 

to implement a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

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

272 note) do not apply. This proposed 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

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

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

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

Dated: December 8, 2006. 

Jane Diamond, 

Acting Regional Administrator, Region IX. 

[FR Doc. E6–21500 Filed 12–15–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2004–WI–0002; FRL–8258–

1] 

Federal Implementation Plan Under the 

Clean Air Act for Certain Trust Lands 

of the Forest County Potawatomi 

Community Reservation if Designated 

as a PSD Class I Area; State of 

Wisconsin 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On June 29, 1995, and July 10, 

1997, EPA proposed to approve a 

request by the Forest County 

Potawatomi Community (FCP 

Community) to redesignate certain trust 

lands within its reservation as Class I 

with respect to the Clean Air Act (CAA) 

Prevention of Significant Deterioration 

(PSD) construction permit program. In 

these proposals, EPA did not explicitly 

state the mechanism it would use if it 

granted the redesignation request nor 

did the Agency include a draft of its 

codification. In this action, EPA is 

proposing that it will promulgate a 

Federal Implementation Plan (FIP) if it 

approves FCP Community’s request and 


jlentini on PROD1PC65 with PROPOSAL