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 Environmental Protection Agency 40 CFR Part 52
[EPA-R09-OAR-2014-0711; FRL-9917-81-Region 9]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Direct final rule.
 SUMMARY: The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the applicable state implementation plan for the State of Nevada submitted by the Nevada Division of Environmental Protection. The revisions include amended State rules related to applications for, and issuance of, permits for stationary sources, but not including review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act. EPA is taking action under the Clean Air Act obligation to take action on State submittals of revisions to state implementation plans. The intended effect of the approval is to fix deficiencies in the previously-approved version of the permitting rules and to ensure that new or modified stationary sources do not interfere with attainment or maintenance of the national ambient air quality standards.
 DATES: This rule is effective on December 22, 2014 without further notice, unless EPA receives adverse comments by November 20, 2014. If we receive such comments, we will publish a timely withdrawal in the 
                        **Federal Register**
                         to notify the public that this direct final rule will not take effect.
 ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2014-0711, by one of the following methods: 1. 
                        *Federal eRulemaking Portal: www.regulations.gov.*
                         Follow the on-line instructions. 2. 
                        *Email: R9airpermits@epa.gov.* 3. 
                        *Mail or deliver:*
                         Laura Yannayon (AIR-3), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:*
                         All comments will be included in the public docket without change and may be made available online at 
                        *www.regulations.gov,*
                         including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through 
                        *www.regulations.gov*
                         or email. 
                        *www.regulations.gov*
                         is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:*
                         The index to the docket for this action is available electronically at 
                        *www.regulations.gov*
                         and in hard copy 
                        ( print page 62847)
                        at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the 
                        **FOR FURTHER INFORMATION CONTACT**
                         section.
 FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, 75 Hawthorne Street (AIR-3), San Francisco, CA 94105, phone number (415) 972-3534 or by email at 
                        *yannayon.laura@epa.gov.*


SUPPLEMENTARY INFORMATION: Throughout this document, the terms “we,” “us,” and “our” refer to the EPA. Table of Contents I. The State's Submittals A. Which rules did the state submit? B. What is the regulatory context? C. What is the purpose of this direct final rule? II. EPA's Evaluation A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? III. Public Comment and Final Action IV. Statutory and Executive Order Reviews I. The State's Submittals A. Which rules did the State submit? On January 3, 2014, the Nevada Division of Environmental Protection (NDEP) submitted a revision to the Nevada State Implementation Plan (SIP) to EPA for approval under section 110(k) of the Clean Air Act (CAA or “Act”). NDEP's submittal includes certain amended State rules [i.e., certain sections of Nevada Administrative Code (NAC)] that relate to applications for, and issuance of, permits for stationary sources [a process referred to herein as “New Source Review” (NSR)].[1]
                    
                     The specific amended rules submitted on January 3, 2014 are NAC sections 445B.22097 (“Standards of quality for ambient air”) and 445B.308 (“Prerequisites and conditions for issuance of certain operating permits; compliance with applicable state implementation plan”).[2]
                    
                     In addition to the amended rules, NDEP's January 3, 2014 submittal contains evidence of public notice and adoption of the amendments to the rules by the Nevada State Environmental Commission (SEC) on December 4, 2013, and a copy of the filing by the Legislative Counsel Bureau of the amended rules with the Nevada Secretary of State on December 23, 2013 making the amendments effective on that date. On June 5, 2014, NDEP submitted a second SIP revision including further amendments to NAC section 445B.22097 (“Standards of quality for ambient air”) and amendments to NAC section 445B.311 (“Environmental evaluation: Contents; consideration of good engineering practice stack height”). We consider the June 5, 2014 submittal of NAC section 445B.22097 as superseding the submittal of that rule on January 3, 2014. NDEP's June 5, 2014 submittal includes a technical support document in which NDEP provides its explanation for how the amended rules meet CAA requirements. NDEP's June 5, 2014 submittal also contains evidence of public notice and adoption of the amendments to the rules by the Nevada SEC on May 2, 2014. On July 15, 2014, NDEP provided documentation that the most recent amendments to NAC sections 445B.22097 and 445B.311 were filed by the Legislative Counsel Bureau with the Nevada Secretary of State on June 23, 2014 and are thus in effect as of that date. Table 1 below lists the rules that were submitted by NDEP on January 3, 2014 and June 5, 2014 and on which EPA is taking action today. The three submitted rules represent updated versions of rules already approved into the Nevada SIP. We last approved NAC section 445B.22097 at 71 FR 15040 (March 27, 2006), and last approved NAC sections 445B.308 and 445B.311 at 77 FR 59321 (September 27, 2012). Upon the effective date of today's final action, the versions of the rules that we previously approved will be superseded in the applicable SIP by the versions of the rules approved today. Table 1—NSR Rules Submitted by NDEP
Submitted rule
Title
Amended date
Submittal dateNAC 445B.22097
Standards of quality for ambient air
05/02/14
06/05/14NAC 445B.308
Prerequisites and conditions for issuance of certain operating permits; compliance with applicable state implementation plan
12/04/13
01/03/14NAC 445B.311
Environmental evaluation: Contents; consideration of good engineering practice stack height
05/02/14
06/05/14
 B. What is the regulatory context? Under sections 107 and 109 of the CAA, the EPA establishes national ambient air quality standards (NAAQS or standards) and designates all areas of the country as attainment, nonattainment, or unclassifiable for the various NAAQS. To date, EPA has established NAAQS for such pervasive pollutants as ozone, carbon monoxide, nitrogen dioxide (NO2), sulfur dioxide (SO2), particulate matter, and lead (Pb). With respect to particulate matter, EPA has established NAAQS for particulate matter with an aerodynamic diameter generally less than or equal to 10 microns (PM10) and for particulate matter with an aerodynamic diameter generally less than or equal to 2.5 microns (PM2.5). Under section 110 of the CAA, each state is required to develop a state implementation plan (SIP) to implement, maintain, and enforce the NAAQS. Among the content requirements for SIPs is the requirement to develop and submit (for EPA approval) a program to provide for the regulation of the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved, including a permit program as required in parts C and D of title I of the CAA. See CAA section 110(a)(2)(C). The permit programs required under parts C and D of title I of the CAA are referred to as 
                    ( print page 62848)
                    the Prevention of Significant Deterioration (PSD) permit program and the Nonattainment New Source Review (NNSR) permit program, respectively. Collectively, the PSD and NNSR programs constitute a state's “major source” permit program, under which applications for construction and operation of new major stationary sources and major modifications of such sources are reviewed for compliance with the PSD and NNSR requirements. New or modified stationary sources that are not major sources or major modifications are referred to as minor sources (or minor modifications), and the program for review of the applications for construction and operation of such sources is referred to as the minor source permit program or “minor NSR.” Today's action relates to three rules promulgated by the Nevada SEC as part of the State of Nevada's minor NSR program, which is administered by NDEP. NDEP's stationary source jurisdiction extends statewide with respect to power plants which generate electricity by using steam produced by the burning of fossil fuel, but does not include Clark or Washoe counties with respect to all other stationary sources. Over the years, the State of Nevada has adopted and implemented, and EPA has approved, rules governing minor NSR. Our most recent action on Nevada's minor source NSR rules was published on September 27, 2012 (77 FR 59321). In the September 27, 2012 final rule, we issued a limited approval and limited disapproval of a comprehensive update to the State's minor source NSR rules. We did so because, although we found that the new or amended rules met most of the applicable requirements for such NSR programs and that the rules improved the existing SIP, we also found certain deficiencies that prevented full approval. Specifically, we indicated that the minor NSR rules did not address the new or revised NAAQS for PM2.5
                     and Pb and must be revised accordingly.[3]
                    
                     In addition, we recognized that EPA had recently established new or revised NAAQS for NO2
                     and SO2
                    ,[4]
                    
                     and while the State still had additional time to amend its NSR rules to address the revised NAAQS for these pollutants, we encouraged the Nevada SEC to make any necessary revisions to the State's NSR rules to address the revised NAAQS for those two pollutants as well, and the NDEP to submit the NSR rules, as revised, to us as a SIP revision. C. What is the purpose of this direct final rule? The Nevada SEC amended NAC section 445B.308 to eliminate an outdated provision and to renumber the paragraphs in the rule accordingly. The Nevada SEC amended NAC sections 445B.22097 and 445B.311 to ensure that the new or revised NAAQS for PM2.5, Pb, NO2
                     and SO2
                     are taken into account in minor NSR permitting decisions. The Nevada SEC also updated NAC section 445B.22097 to reflect the most recent ozone NAAQS.[5]
                    
                     The purpose of this direct final rule is to present our evaluation under the CAA and EPA's regulations of the amended NSR rules submitted by NDEP on January 3, 2014 and June 5, 2014. II. EPA's Evaluation A. How is EPA evaluating the rules? EPA has reviewed the rules submitted on January 3, 2014 and June 5, 2014 for compliance with the CAA requirements for SIPs in general set forth in CAA section 110(a)(2), for compliance with applicable EPA regulations for stationary source permitting programs in 40 CFR part 51, sections 51.160 through 51.164, and also for compliance with CAA requirements for SIP revisions in CAA section 110(l).[6]
                    
                     As described below, EPA has found that the amended rules meet all applicable requirements and is thus taking direct final action to approve them as revisions to the Nevada SIP. B. Do the rules meet the evaluation criteria? As to procedural requirements for SIPs and SIP revisions, we find that, based on our review of the public participation documentation included in the January 3, 2014 and June 5, 2014 submittals, NDEP has provided sufficient evidence of public notice and opportunity for comment and hearing prior the adoption and submittal to EPA of the rules that are the subject of today's action. As to the substantive requirements, we start with the amendments to NAC section 445B.308, which include deletion of a paragraph that had not been submitted as part of the Nevada SIP but had established NSR requirements for applicants for permits for certain new sources or modifications proposed to be located in “basic” ozone nonattainment areas. The deletion of NSR requirements for sources or modifications in “basic” ozone nonattainment areas is acceptable because there are no such areas in the State of Nevada, and given court precedent,[7]
                    
                     there will not likely be any such areas in Nevada in the future, and thus the provisions that have been deleted from NAC 445B.308 are not necessary to meet CAA requirements. Second, we have considered the amendments to NAC sections 445B.22097 and 445B.311 in relation to 40 CFR 51.160(a), which requires, in connection with NSR, each SIP to set forth legally enforceable procedures that enable the State to determine whether the construction or modification of a stationary source will result in, among other impacts, interference with attainment or maintenance of the NAAQS. EPA regulations also require SIPs to include enforceable procedures under which the State agency responsible for final decision-making on NSR permits will prevent such construction or modification if it will interfere with attainment or maintenance of the NAAQS. See 40 CFR 51.160(b). To address these requirements for minor stationary sources in the Nevada SIP, NAC sections 445B.310 and 445B.311 require permit applicants to prepare environmental evaluations that contain dispersion analyses showing the effect of the source on the quality of the 
                    ( print page 62849)
                    ambient air, and NAC section 445B.308 prohibits the issuance of a permit or revision for any stationary source if the Environmental Evaluation shows, or NDEP determines, that the stationary source will prevent the attainment and maintenance of the state or national ambient air quality standards, as established in NAC 445B.22097. Permit applicants are required to prepare and submit Environmental Evaluations for any new stationary source which emits, or has the potential to emit, greater than 25 tons per year (tpy) of a regulated air pollutant; and, with respect to modifications, the existing stationary source has the potential to emit greater than 25 tpy of a regulated air pollutant, and the proposed modification has the potential to emit greater than 10 tpy of a regulated air pollutant. See NAC section 445B.310. NAC section 445B.22097 in turn lists the NAAQS and the Nevada ambient air quality standards (“Nevada standards”). With respect to the NAAQS, in our proposed rulemaking on the previous version of the minor NSR rules, 77 FR 38557, at 38563 (June 28, 2012), we noted that NAC section 445B.22097 had not been updated since 1991 and thus did not include the new, revised, or revoked NAAQS since that time. Moreover, we noted that NAC section 445B.22097 includes a note that states: “The Director shall use the Nevada standards in considering whether to issue a permit for a stationary source and shall ensure that the stationary source will not cause the Nevada standards to be exceeded in areas where the general public has access.” The Nevada standards were equal to the NAAQS (i.e., as of 1991) for those pollutants for which both Nevada and EPA have established ambient standards, but, because the Nevada standards did not reflect the changes in the NAAQS since 1991, reliance on them for permitting purposes did not ensure protection of the new or revised NAAQS established since then, such as the 2006 PM2.5
                     NAAQS and the 2008 Pb NAAQS, as NDEP reviews permit applications for new or modified minor stationary sources. Thus, in our September 27, 2012 final rule, we concluded that the NSR rules must be revised to ensure protection of the 2006 PM2.5
                     and the 2008 Pb NAAQS. See 77 FR 59321, at 59325 (September 27, 2012). We also encouraged the Nevada SEC to update NAC section 445B.22097 to take into account the replacement of the 1-hour ozone NAAQS (0.12 ppm) with the 2008 ozone NAAQS, although we did not consider the failure to update the rule for ozone as a significant deficiency because, given the regional nature of ambient ozone concentrations, applicants for permits for new or modified minor stationary sources are typically not required to show, through dispersion modeling techniques, that the ozone precursor emissions from the source or modification would not violate the standard. See 77 FR 38557, at 38563 (June 28, 2012). In response, the Nevada SEC updated the NAAQS and Nevada standards in NAC section 445B.22097 through amendments adopted on December 4, 2013 and May 2, 2014, to reflect the 2006 PM2.5
                     NAAQS, the 2008 ozone NAAQS, and the 2008 Pb NAAQS.[8]
                    
                     As such, applicants of new stationary sources with potentials to emit more than 25 tpy of PM2.5, or modifications of such sources with potential to emit more than 10 tpy of PM2.5, must perform dispersion modeling to show the impact of the source or modification on ambient PM2.5
                     concentrations. In its June 5, 2014 SIP revision submittal, NDEP included a technical support document that provides an explanation of how the 25 tpy modeling threshold (10 tpy for modifications), as opposed to a lower threshold, ensure that new or modified sources do not interfere with attainment or maintenance of the PM2.5
                     NAAQS. First, after noting that the entire State of Nevada is “attainment/unclassifiable” for the PM2.5
                     NAAQS, NDEP describes the 25 tpy modeling threshold as protective of the NAAQS in that it has been set at one-quarter of the 100 tpy PSD major source threshold that applies to certain categories of sources (250 tpy is the major source threshold for other sources). In this regard, NDEP also notes that the modeling threshold for modifications (i.e., for sources with potentials to emit greater than 25 tpy) is 10 tpy, the same as EPA's PSD significant emission rate for PM2.5
                     (see 40 CFR 51.166(b)(23)), which is presumed to be protective of the NAAQS. Second, NDEP provides a technical evaluation showing how three types of high-emitting stationary combustion sources (deemed “worst-case”) would either trigger PSD permitting due to emissions of other criteria pollutants before reaching the 25 tpy PM2.5
                     modeling threshold or would result (when emitting at 25 tpy) in concentrations that, together with background levels, would be well below the PM2.5
                     NAAQS.[9]
                    
                     Third, NDEP documents the minor overall contribution of minor stationary sources (about 3% based on the 2011 NEI data) to the PM2.5
                     emissions inventory for the State of Nevada. We have reviewed the technical support document submitted with the June 5, 2014 SIP revision and agree with NDEP that the 25 tpy modeling threshold for PM2.5
                     (and 10 tpy for modifications) is protective of the PM2.5
                     NAAQS. In particular, we find the 25 tpy modeling threshold (10 tpy for modifications) sufficiently protective of the PM2.5
                     NAAQS given the modeling results presented by NDEP, the low PM2.5
                     background concentrations, and the “unclassifiable/attainment” designation for the entire State of Nevada for the PM2.5
                     NAAQS (see 40 CFR 81.329). We conclude that implementation of the 25 tpy modeling threshold (10 tpy for modifications) will provide NDEP with sufficient information to determine whether new minor sources or minor modifications will interfere with attainment or maintenance of the PM2.5
                     NAAQS and will thus allow NDEP to prevent the construction of such sources or modifications if the modeling analysis indicates that such interference would occur.[10] The same holds true with respect to the new or modified sources of Pb and the 2008 Pb NAAQS, but for other reasons. With respect to Pb, the 25 tpy modeling threshold is significantly above the PSD significant emission rate of 0.6 tpy, but, unlike PM2.5, oxides of nitrogen (NOX), and SO2, Pb is not a typical product of combustion given the removal or minimization of Pb in nearly all fuels, with the exception of aviation gasoline used in piston-powered aircraft. Thus, there are few remaining stationary sources of Pb, and of those that remain, such as lead smelters and battery recycling, Pb emissions are likely to exceed 25 tpy and thus would 
                    ( print page 62850)
                    be subject to dispersion modeling to determine whether the source would interfere with attainment or maintenance of the 2008 Pb NAAQS. Lastly, in our September 27, 2014 final rule, we noted that the deadline for submittal of NSR SIP revisions addressing the 2010 NO2
                     NAAQS and 2010 SO2
                     NAAQS had not yet passed, but we encouraged the Nevada SEC to adopt and submit revised NSR rules to address these new NAAQS in a timely manner. To address these new NAAQS, the Nevada SEC adopted revisions to NAC 445B.22097 to update the NAAQS and Nevada standards listed in that rule to reflect the 2010 NO2
                     and 2010 SO2
                     NAAQS. Doing so has the effect of requiring applicants for sources or modifications with potentials to emit above certain levels to perform dispersion modeling to inform NDEP's determination of whether such sources or modifications would interfere with these new NAAQS. For the purposes of dispersion analyses for the 2010 NO2
                     and 2010 SO2
                     NAAQS, the Nevada SEC revised NAC 445B.311 to specify modeling thresholds of 40 tpy for both new sources and modifications. The 40 tpy is equivalent to the PSD significant emission rates for NOX
                     and SO2, see 40 CFR 51.166(b)(23). Moreover, NDEP's technical support document shows that minor stationary sources contribute less than 3% and 6% to the State's total emissions inventory of NOX
                     and SO2, respectively, and correctly identifies the entire State as “attainment/unclassifiable” for the 2010 NO2
                     NAAQS.[11]
                    
                     In light of the designations and emissions inventory data, we agree with NDEP that use of the PSD significant emission rate is a reasonable threshold to distinguish sources and modifications that could potentially interfere with attainment or maintenance of the 2010 NO2
                     or SO2
                     NAAQS from those with de minimis effects, and will provide NDEP with sufficient information to determine whether new minor sources or minor modifications would interfere with the 2010 NO2
                     and 2010 SO2
                     NAAQS. In summary, and for the reasons set forth above, we find that the State of Nevada has adequately addressed the previously-identified deficiencies in the minor source NSR rules and that the amended NSR rules meet the applicable requirements for NSR SIPs for all of the new or revised NAAQS for PM2.5, Pb, SO2
                     and NO2, other than the 2012 PM2.5
                     NAAQS for which NSR SIP revisions are not yet due. III. Public Comment and Final Action Pursuant to CAA section 110(k), and for the reasons provided above, EPA is taking direct final action to approve revisions to certain rules that relate to applications for, and issuance of, permits for stationary sources under the jurisdiction of the NDEP, excluding review and permitting of major sources and major modifications under parts C and D of title I of the CAA. Specifically, EPA is approving NAC section 445B.308, as amended on December 4, 2013, and NAC sections 445B.22097 and 445B.311, as amended on May 2, 2014, because we find that the revisions fix the deficiencies in the previously-approved versions of the rules and adequately provide for new source review for the new or revised NAAQS for NO2
                     and SO2
                    .[12] We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this 
                    **Federal Register**
                    , we are simultaneously proposing approval of the same submitted revisions. If we receive adverse comments by November 20, 2014, we will publish a timely withdrawal in the 
                    **Federal Register**
                     to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 22, 2014. This will incorporate the amended rules into the federally enforceable SIP. IV. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State rules as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action: Is not a “significant regulatory action” subject to review by the Office of Management and Budget underExecutive Order 12866 (58 FR 51735, October 4, 1993);
                does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
                is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
                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);
                does not have Federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
                is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
                is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);
                is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
                does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods underExecutive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and 
                    ( print page 62851)
                    the Comptroller General of the United States prior to publication of the rule in the 
                    **Federal Register**
                    . A major rule cannot take effect until 60 days after it is published in the 
                    **Federal Register**
                    . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 22, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's 
                    **Federal Register**
                    , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). List of Subjects in 40 CFR Part 52 Environmental protection
Air pollution control
Incorporation by reference
Intergovernmental relations
Lead
Particulate matter
Reporting and recordkeeping requirements
Sulfur oxides
 Authority:
                    42 U.S.C. 7401 
                        *et seq.* Dated: September 29, 2014. Alexis Strauss, Acting Regional Administrator, Region IX.
 Chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
 1.The authority citation for Part 52 continues to read as follows: Authority:
                        42 U.S.C. 7401 
                            *et seq.* Subpart DD—Nevada
 2.Section 52.1470 in paragraph (c), Table 1 is amended by revising the entries for “445B.22097,” “445B.308, excluding paragraph (2)(d) and subsections (4), (5), and (10),” and “445B.311.” The revisions read as follows: § 52.1470
  
 (c) * * * Table 1—EPA-Approved Nevada Regulations and Statutes
State 
                                     citation
Title/
                                     subject
State
                                     effective 
                                     date
EPA
                                     approval 
                                     date
Additional
                                     explanation*         *         *         *         *         *         ***Nevada Administrative Code, Chapter 445B, Air Controls, Air Pollution; Nevada Administrative Code, Chapter 445, Air Controls, Air Pollution; Nevada Air Quality Regulations—General Provisions***         *         *         *         *         *         *445B.22097
Standards of quality for ambient air
6/23/14
[Insert 
                                    **Federal Register**
                                     citation], 10/21/2014
Adopted Regulation of the State Environmental Commission, LCB File No. R145-13. The Nevada SEC amended NAC 445B.22097 on May 2, 2014, and NDEP submitted it to EPA on June 5, 2014.*         *         *         *         *         *         ***Nevada Administrative Code, Chapter 445B, Air Controls, Air Pollution—Operating Permits Generally***         *         *         *         *         *         *445B.308, excluding paragraph (2)(d) and subsections (4) and (9)
Prerequisites and conditions for issuance of certain operating permits; compliance with applicable state implementation plan
12/23/13
[Insert 
                                    **Federal Register**
                                     citation], 10/21/2014
Adopted Regulation of the State Environmental Commission, LCB File No. R042-13. The Nevada SEC amended NAC 445B.308 on December 4, 2013, and NDEP submitted it to EPA on January 3, 2014.*         *         *         *         *         *         *445B.311
Environmental evaluation: Contents; consideration of good engineering practice stack height
6/23/14
[Insert 
                                    **Federal Register**
                                     citation], 10/21/2014
Adopted Regulation of the State Environmental Commission, LCB File No. R145-13. The Nevada SEC amended NAC 445B.311 on May 2, 2014, and NDEP submitted it to EPA on June 5, 2014.( print page 62852)*         *         *         *         *         *         *


# Footnotes

1.
    
                         We note that the stationary source permitting rules that are the subject of this rule are not related to the requirements for pre-construction review and permitting of major sources or major modifications under part C (“Prevention of Significant Deterioration of air quality”) or part D (“Plan requirements for nonattainment areas”) of title I of the Clean Air Act. Back to Citation
 2.
    
                         By letter dated January 28, 2014, NDEP withdrew amended versions of NAC sections 445B.308 and 445B.311 that had been submitted on January 3, 2014 from EPA consideration as revisions to the Nevada SIP, but, by letter dated September 17, 2014, NDEP reinstated the January 3, 2014 submittal of NAC 445B.308. Back to Citation
 3.
    
                         In 1997 (62 FR 38652, July 18, 1997), EPA first established annual and 24-hour PM2.5
                         NAAQS of 15 micrograms per cubic meter (μg/m3.
    
                        ) and 65 μg/m3.
    
                        , respectively. In 2006 (71 FR 61144, October 17, 2006), EPA lowered the 24-hour PM2.5
                         NAAQS to 35 μg/m3.
    
                        . For simplicity, we refer herein to the 1997 annual PM2.5
                         and 2006 24-hour PM2.5
                         NAAQS collectively as the “2006 PM2.5
                         NAAQS.” In 2008 (73 FR 66964, November 12, 2008), EPA lowered the Pb NAAQS to 0.15 μg/m3.
    
                        , rolling 3-month average (referred to herein as the “2008 Pb NAAQS”). Back to Citation
 4.
    
                         In 2010 (75 FR 6474, February 9, 2010), EPA established a one-hour NO2
                         NAAQS of 100 parts per billion (ppb), which is equivalent to 188 μg/m3.
    
                         (referred to herein as the “2010 NO2
                         NAAQS”). Also in 2010 (75 FR 35520, June 22, 2010), EPA established a one-hour SO2
                         NAAQS of 75 ppb, which is equivalent to 196 μg/m3.
    
                         (referred to herein as the “2010 SO2
                         NAAQS”). Back to Citation
 5.
    
                         In 2008 (73 FR 16436, March 27, 2008), EPA lowered the 8-hour ozone NAAQS to 0.075 parts per million (ppm) (referred to herein as the “2008 ozone NAAQS”). Back to Citation
 6.
    
                         CAA section 110(l) requires SIP revisions to be subject to reasonable notice and public hearing prior to adoption and submittal by States to EPA and prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. Back to Citation
 7.
    
                         In 
                        *South Coast Air Quality Management Dist.*
                         v. 
                        *EPA,*
                         472 F.3d 882 (D.C. Cir. 2006) re'g denied 489 F.3d 1245 (clarifying that the vacatur was limited to the issues on which the court granted the petitions for review), the D.C.  Circuit Court of Appeals vacated EPA's classification of certain nonattainment areas for the 1997 8-hour ozone NAAQS solely under subpart 1 of part D of title I of the CAA. In this context, subpart 1 areas refer to “basic” ozone nonattainment areas. Since the South Coast decision, EPA has replaced the subpart 1 (i.e., “basic”) ozone classifications for the 1997 ozone NAAQS with subpart 2 classifications (e.g., “marginal,” moderate,” or “serious”). See 77 FR 28424 (May 14, 2012). Back to Citation
 8.
    
                         On December 14, 2012, the EPA Administrator signed a final rule that lowered the annual PM2.5
                         NAAQS to 12.0 μg/m3.
    
                         (referred to herein as the “2012 PM2.5
                         NAAQS”). See 78 FR 3086 (January 15, 2013). Submittals by states of SIP revisions to address the 2012 PM2.5
                         NAAQS, including revisions related to minor NSR, are not due until 2016. Back to Citation
 9.
    
                         See the industrial boiler combusting residual oil and the reciprocating internal combustion engine (ICE) combusting natural gas scenarios for the first type of result, and the wood-fired boiler scenario for the second type of result, in NDEP's “Technical Support Document for Nevada State Implementation Plan Revisions Addressing Minor Source Permitting Program.” Back to Citation
 10.
    
                         We also note that Nevada law not only establishes the modeling threshold above which permit applicants of new sources or modifications must perform dispersion modeling but also provides NDEP with the authority to require applicants to submit “any other information the Director determines is necessary to make an independent air quality impact assessment.” NAC 445B.308(1). Such “other information” may include dispersion modeling beyond that otherwise required if necessary to determine whether a new source or modification would interfere with attainment or maintenance of the NAAQS. Back to Citation
 11.
    
                         See 40 CFR 81.329. With respect to the 2010 SO2
                         NAAQS, the EPA designated as nonattainment most areas in locations where existing monitoring data from 2009-2011 indicated violations of the NAAQS. See 78 FR 47191 (August 5, 2013). No such areas were designated within the State of Nevada. EPA has not completed the designation process for the 2010 SO2
                         NAAQS for areas other than those designated on August 5, 2013. Back to Citation
 12.
    
                         Upon the effective date of today's final action, the versions of the rules that we are approving today will supersede NAC section 445B.22097, as approved at 71 FR 15040 (March 27, 2006), and NAC sections 445B.308 and 445B.311, as approved at 77 FR 59321 (September 27, 2012) in the applicable SIP. Back to Citation


[FR Doc. 2014-24762 Filed 10-20-14; 8:45 am] BILLING CODE 6560-50-P