[Federal Register: September 7, 2004 (Volume 69, Number 172)]
[Rules and Regulations]
[Page 54006-54019]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07se04-6]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NV054-081; FRL-7808-7]
Approval and Promulgation of Implementation Plans; New Source
Review; State of Nevada, Clark County Department of Air Quality and
Environmental Management
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to partially approve and partially
disapprove revisions to the Clark County portion of the Nevada State
Implementation Plan. These revisions concern rules adopted by the Clark
County Board of County Commissioners for issuing permits for new or
modified stationary sources in Clark County to comply with the
applicable permitting requirements under parts C and D of title I of
the Clean Air Act as amended in 1990. These provisions of the Clean Air
Act are designed to prevent significant deterioration in attainment
areas and to attain the National Ambient Air Quality Standards in
nonattainment areas. EPA is also approving as a revision to the Nevada
State Implementation Plan a State regulation prohibiting the
construction of certain types of major new or modified power plants
that are under exclusive State jurisdiction in the nonattainment areas
within Clark County. The intended
[[Page 54007]]
effect of today's final action is to ensure that Clark County's
permitting rules are consistent with a ruling by the Ninth Circuit, see
Hall v. EPA, 273 F.3d 1146 (9th Cir. 2001) and with the requirements of
the Clean Air Act, as amended in 1990. EPA is amending the appropriate
section of the Code of Federal Regulations to reflect the outcome of
Hall v. EPA. Lastly, under section 110(k)(6) of the Act, EPA is
correcting or clarifying certain previous final rulemaking actions
taken by EPA on revisions to the Clark County portion of the Nevada
State Implementation Plan.
DATES: Effective Date: This rule is effective on October 7, 2004.
ADDRESSES: You can inspect copies of the docket for this action during
normal business hours at the Air Division, EPA Region IX, 75 Hawthorne
Street, San Francisco, California 94105. You may also see copies of the
State's two submittals at the Nevada Division of Environmental
Protection, 333 W. Nye Lane, Room 138, Carson City, Nevada 89706. Clark
County's amended rules are available at the Clark County Department of
Air Quality and Environmental Management, 500 S. Grand Central Parkway,
Las Vegas, Nevada 89155.
FOR FURTHER INFORMATION CONTACT: Roger Kohn, EPA Region IX, Air
Division, Permits Office (AIR-3), at (415) 972-3973 or
kohn.roger@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Proposed Action
A. The State's Submittal
B. Vacature of EPA Approval of Previous Versions of these Rules
C. Correction or Clarification of Previous EPA SIP Actions on
Clark County Rules
D. May 20, 2004 Federal Register Direct Final and Proposed Rule
on CCAQR Section 11
II. Public Comments
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Proposed Action
A. The State's Submittal
On June 2, 2004 (69 FR 31056), we proposed a partial approval and
partial disapproval of the rules listed in Table 1 as revisions to the
Nevada State Implementation Plan (SIP). Specifically, we proposed to
approve submitted Clark County Air Quality Regulations (CCAQR) sections
0, 11, 12 (except subsections 12.2.18 and 12.2.20), 58 and 59 and to
approve submitted Nevada Administrative Code section 445B.22083. We
proposed to disapprove submitted CCAQR subsections 12.2.18 and 12.2.20
and CCAQR subsection 52.8.
Table 1.--Submitted Rules \1\
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Agency Rule Rule title Adopted Submitted
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DAQEM....................... 0............................... Definitions........... 10/07/03 10/23/03
DAQEM....................... 11.............................. Ambient Air Quality 10/07/03 10/23/03
Standards.
DAQEM....................... 12.............................. Preconstruction Review 10/07/03 10/23/03
for New or Modified
Stationary Sources.
DAQEM....................... 52.8............................ Gasoline Dispensing 10/07/03 10/23/03
Facilities--Section
52 Offset Program.
DAQEM....................... 58.............................. Emission Reduction 10/07/03 10/23/03
Credits.
DAQEM....................... 59.............................. Emission Offsets...... 10/07/03 10/23/03
SEC......................... NAC 445B.22083.................. Construction, major 03/29/94 11/20/03
modification or
relocation of plants
to generate
electricity using
steam produced by
burning of fossil
fuels.
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\1\ In Clark County, the Board of County Commissioners is responsible for adopting, modifying, or repealing the
Clark County Air Quality Regulations (CCAQR). Clark County's administrative departments were recently
reorganized, and the Clark County Department of Air Quality Management (DAQM), cited in the proposed rule as
the applicable local air pollution control agency, has been subsumed within a new county department named the
Clark County Department of Air Quality and Environmental Management (DAQEM). The DAQEM, like its predecessor
(i.e., the DAQM), is responsible for administering the Clark County Air Quality Regulations. In this final
rule, we use the term ``DAQEM'' to refer to the local air agency, and term ``SEC'' to refer to the State
Environmental Commission.
We proposed a partial approval and a partial disapproval because,
while we determined that most of the rules complied with the relevant
Clean Air Act (CAA or Act) requirements, we determined that certain
severable subsections of the rules did not so comply. We took this
proposed action after finding the SIP submittal dated October 23, 2003,
containing the local New Source Review (NSR) rules, to be complete on
November 18, 2003. The SIP submittal dated November 20, 2003,
containing the State regulation,\2\ was deemed complete by operation of
law on May 20, 2004.
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\2\ NAC 445B.22083 prohibits new power plants or major
modifications to existing power plants under State jurisdiction
(i.e., plants that generate electricity using steam produced by
burning of fossil fuels but not including any plant which uses
technology for a simple or combined cycle combustion turbine),
within the Las Vegas Valley nonattainment area and certain other
areas within Clark County. See the proposed rule at 69 FR 31058-
31059 for more information on this State regulation.
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Our June 2, 2004 proposed action contains more information on the
rules and our evaluation.
B. Vacature of EPA Approval of Previous Versions of These Rules
In our June 2, 2004 proposed rule, we also proposed to delete 40
CFR 52.1470(c)(36) and (37) in recognition of the vacature by the Ninth
Circuit Court of Appeals of our approval of previous versions of the
Clark County New Source Review (NSR) rules in Hall v. EPA, 273 F.3d
1146 (9th Cir. 2001).
C. Correction or Clarification of Previous EPA SIP Actions on Clark
County Rules
Lastly, in our June 2, 2004 proposed rule, we proposed to correct
certain provisions of the Clark County portion of the Nevada SIP that
we approved in error and to revise certain provisions of the Clark
County portion of the Nevada SIP that warrant clarification.
Specifically, we proposed to delete SIP section 1, subsections 1.79
(Significant source of total chlorides) and 1.94 (Total Chlorides); SIP
section 15 (Prohibition of Nuisance Conditions); SIP section 29 (Odors
in the Ambient Air); SIP section 40, subsection 40.1 (Prohibition of
Nuisance Conditions); SIP section 42, subsection 42.2 (untitled but
related to nuisance from open burning); and SIP section 43, subsection
43.1 (Odors in the Ambient Air), from the appropriate paragraphs of 40
CFR 52.1470 (``Identification of plan''). We also proposed to revise
the appropriate paragraphs in 40 CFR 52.1470 to clarify that former SIP
section 12 (Upset, Breakdown, or Scheduled Maintenance) and submitted
section 25.1 (untitled, but related to upset, breakdown, or scheduled
maintenance) are not approved into the Clark County portion of the
Nevada SIP, and to clarify that SIP section 33 (Chlorine in Chemical
[[Page 54008]]
Processes) was, and continues to be, approved into the Clark County
portion of the Nevada SIP as part of our approval of the overall post-
1982 ozone plan for Las Vegas Valley.
D. May 20, 2004 Federal Register Direct Final and Proposed Rule on
CCAQR Section 11
On May 20, 2004, we published a direct final rule (69 FR 29074) and
a proposed rule (69 FR 29120) approving the same version of CCAQR
section 11 for which we subsequently proposed approval in our June 2,
2004 action. On our own initiative, we withdrew the direct final rule
with respect to CCAQR section 11 in a partial withdrawal action that we
published on July 2, 2004 (69 FR 40324). We withdrew the direct final
action on CCAQR section 11 to avoid confusion with our subsequent
proposed rule. EPA's May 20, 2004 proposed rule provided for a 30-day
public comment period. We received no comments on the May 20, 2004
proposal. In today's notice, we are finalizing action proposed both on
May 20, 2004 and again on June 2, 2004 to approve CCAQR section 11, as
adopted on October 7, 2003 and submitted to EPA on October 23, 2003,
into the Clark County portion of the Nevada SIP.
II. Public Comments
EPA's June 2, 2004 proposed rule provided for a 30-day public
comment period. During this period, we received comments from the
following parties:
(1) Ray Bacon, Executive Director, Nevada Manufacturers Association
(``NMA''), letter dated June 28, 2004, calling for clarification of
which DAQEM rules are proposed to be part of the SIP and which are not,
citing inadequate public access to NSR materials, recommending that
only an offset ratio of 1:1 be made part of the SIP, calling for
elimination of conflicting and confusing definitions, calling for the
redesignation of Clark County to ``attainment'' for the carbon monoxide
(CO) National Ambient Air Quality Standard (NAAQS) and the revision of
the NSR program accordingly, and calling for a revision of EPA's
evaluation of the SIP submittals to reflect the current Federal NSR
regulations;
(2) Christine Robinson, Director, Clark County Department of Air
Quality and Environmental Management (DAQEM), letter dated July 1,
2004, citing an apparent error in EPA's interpretation of the
requirements for oxides of nitrogen (NOX) under the existing
SIP NSR program, but supporting EPA's overall conclusions about the
comparative stringency of the submitted NSR program relative to the
existing SIP NSR program; and
(3) Robert W. Hall, President, Nevada Environmental Coalition, Inc.
(``NEC''), letter dated July 2, 2004, objecting to the proposed
approval of the submitted NSR program as inconsistent with sections
110(l), 116, 171(1), and 193 of the Act, particularly as those sections
relate to the pollutants for which Las Vegas Valley has been designated
nonattainment (i.e., particulate matter (PM-10), CO, and ozone).
Responses to all comments can be found in the following paragraphs.
NMA Comment #1: EPA proposes to approve all of CCAQR sections 58
and 59 (and corresponding provisions of section 12) concerning offsets.
However, not all of those requirements are intended to implement the
Federal CAA NSR program, nor does DAQEM submit them for that purpose.
DAQEM intends only subsection 59.1 (``Federal Offset Requirements'') to
be part of the SIP revision, not subsection 59.2 (``Local Offset
Requirements''). Similarly, subsections 59.3, 59.4, and 59.5 contain
certain provisions that are meant to be federally enforceable (i.e.,
part of the SIP), and some that are exclusively local. Subsection
12.2.6, or portions thereof, also appears to be a requirement, in whole
or in part, that is not intended for CAA NSR purposes and is not
subject to this approval. EPA and DAQEM should identify with precision
which requirements of DAQEM NSR rules are to be federally approved and
enforceable and which are not; this clarified rule should then be
subject to notice and comment before final SIP approval. As a
consequence, the approval should be suspended and subject to notice and
comment after the clarifications are made public.
Response to NMA Comment #1: NMA is correct in that certain
provisions of the submitted NSR program were not intended to be
approved as part of the Nevada SIP. By letter dated July 12, 2004, from
Jolaine Johnson, Acting Administrator, Nevada Division of Environmental
Protection, to Deborah Jordan, Director, Air Division, U.S. EPA--Region
IX, DAQEM and the State requested EPA to withdraw the approval of
subsection 59.2 as part of the SIP. As a result, we no longer have
authority to act on subsection 59.2 (``Local Offset Requirements''),
and subsection 59.2 will therefore not become federally enforceable. We
do not believe that the State's withdrawal of subsection 59.2
necessitates a new round of notice and comment under the Administrative
Procedure Act because we did not rely on subsection 59.2 in our June 2,
2004 proposed rule. That is, we did not rely on subsection 59.2 to
satisfy any Federal NSR (nonattainment NSR or PSD) requirements nor to
justify our proposed partial approval of the submitted NSR program
under either sections 110(l) or 193 of the Act. The withdrawal of
subsection 59.2 does not change our conclusion or the underlying
rationale set forth in the proposed rule in any way.
We note that the submitted NSR program contains a revised minor
(Clark County Air Quality Regulations use a related term, ``non-
major'') stationary source review program and a revised major
stationary source review program (nonattainment NSR and PSD) and that
both minor and major source review programs are required under the Act.
See sections 110(a)(2)(C), 161, and 172(c)(5) of the Act. Furthermore,
for SIP revisions to be approved by EPA, SIP revisions must also comply
with certain other requirements of the Act, such as section 110(l),
which prohibits approval of SIP revisions that would interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the Act. Thus, certain
requirements in the submitted NSR program may not be needed to satisfy
CAA NSR requirements for major sources and major modifications, but are
necessary to provide EPA with the basis to approve the overall NSR
program revision to supercede the existing SIP-approved Clark County
NSR program under section 110(l). Thus, all of the provisions in the
NSR submittal dated October 7, 2003, with the exception of those
specific provisions which EPA proposed to disapprove and with the added
exception of subsection 59.2 discussed above, are necessary to provide
EPA with the basis to approve the updated NSR program, and, upon EPA
approval, will become federally enforceable.
NMA Comment #2: An additional and separate source of confusion is
the lack of adequate posting and public access to the relevant NSR
requirements. As of the date of these comments, DAQEM's Web site posts
the text of its section 0, 12, 58, and 59 requirements as regulations
adopted on December 4, 2001. The EPA proposed rule for Clark County's
SIP approval is based on DAQEM regulations EPA states were adopted on
October 7, 2003 and which are available only by written request. The
problem is that the text of the Clark County rules EPA apparently
proposes to approve into the SIP is substantially different from the
text of the DAQEM rules posted on DAQEM's Web site. To compound the
problem, EPA has stated ``While we can only act on the most
[[Page 54009]]
recently submitted version, we have reviewed materials provided with
previous submittals.'' Neither the proposed rule itself nor the
Technical Support Document (TSD) explain what are the ``materials'' or
``previous submittals'' on which EPA relies. As a result, public
comment on the appropriateness of such reliance is impossible. Before
finalizing the SIP approval, EPA and DAQEM should identify the specific
regulatory texts which form the basis for EPA's proposed SIP approval;
these should be made available to the public. To the extent EPA relies
on any materials other than these regulations, the proposed SIP
approval should identify the specific material and the nature of EPA's
reliance on it.
Response to NMA Comment #2: We disagree with NMA's contention that
our proposed action lacked adequate public access to the relevant
materials. The specific regulatory texts which form the basis for EPA's
proposed SIP action are as follows: CCAQR sections 0, 11, 12, 52.8, 58,
and 59 (not including subsection 59.2, as discussed above in Response
to NMA Comment 1), as adopted by the Clark County Board of
County Commissioners on October 7, 2003 and as submitted to EPA by NDEP
on October 23, 2003; and Nevada Administrative Code (NAC) section
445B.22083, as adopted by the State Environmental Commission on March
29, 1994 and submitted to EPA by NDEP on November 20, 2003. With the
exception of subsection 59.2, this is the exact list identified in
Table 1 of our proposed rule. See 69 FR at 31057. Also, in our proposed
rule, at 69 FR 31056, column 3, we indicated that members of the public
could inspect copies of the State's submittals, EPA's technical support
documents, and other supporting documentation at EPA Region IX offices,
could inspect copies of the State's submittals at NDEP offices in
Carson City, or could inspect copies of the revised Clark County NSR
rules at DAQEM offices in Las Vegas. We did not rely on DAQEM's Web
site for public access to the relevant materials.
In the proposed rule, at 69 FR 31057, we describe the various Clark
County NSR submittals sent to us pursuant to the Act, as amended in
1990, and our actions related to them. In the discussion in the
proposed rule, we explain that our approval of previous Clark County
NSR submittals (then contained in Clark County Health District Air
Pollution Control Regulations sections 0, 12, and 58) was vacated in
Hall v. EPA (273 F.3d 1146, 9th Cir. 2001), that we received a revised
Clark County NSR program on February 25, 2003 that included the then-
current CCAQR sections 0, 11, 12, 58, and 59, as adopted on December 4,
2001, but that this February 25, 2003 submittal was superceded by the
Clark County NSR submittal dated October 23, 2003. Further, our
proposed rule indicates that the October 23, 2003 submittal of the
Clark County NSR rules is the one that forms the basis for our proposed
action. We rely on superceded SIP submittals only to the extent that
they inform our understanding of the evolution of the Clark County NSR
program from the version that formed the basis for our prior SIP
approval action (see 64 FR 25210, May 11, 1999), which was subsequently
vacated in the Hall decision, through the adoption in October 2003 by
Clark County of the version of the NSR program that formed the basis
for our proposed action. We believe that we described this regulatory
history in sufficient detail in our June 2, 2004 proposed rule to have
allowed for informed public comment on our proposed action.
NMA Comment #3: Clark County's NSR rules and EPA's approval
incorporate an unnecessarily and inappropriately stringent 2 to 1
offset ratio requirement for major sources and major modifications
involving CO or PM-10. EPA explains in the TSD that CAA requirements to
show noninterference with reasonable further progress would be
satisfied at ratio of 1 to 1. Thus, the 2 to 1 offset ratio is
unnecessarily stringent, particularly in light of the additional
respects in which the new Clark County NSR rules have significantly
increased the rate of progress to attainment. Accordingly, the level of
offsets which may be ``federally enforceable'' as part of the
applicable SIP should be limited to offsets in the ratio of 1 to 1 but
not any higher ratio.
Response to NMA Comment #3: In reviewing SIP submissions, EPA's
role is to approve state choices, provided that they meet the minimum
requirements of the Clean Air Act and our regulations. Section
173(c)(1) of the Act specifies that emissions ``shall be offset by an
equal or greater reduction, as applicable, in the actual emissions of
such air pollutant from the same or other sources in the area.'' The
Act specifically provides discretion to establish an offset ratio in an
amount that is greater than a ratio of 1 to 1. Accordingly, the State's
offset program is consistent with, and meets the minimum requirements
of, the Act. Moreover, our rationale for approval of the submitted NSR
program (and supercession of the existing NSR program) under sections
110(l) and 193 of the Act rely in part on the submitted program's 2 to
1 offset ratio. See the proposed rule at 69 FR at 31061, column 3
(section 110(l) evaluation for CO); 69 FR at 31062, column 1 (section
110(l) evaluation for PM-10); and 69 FR 31064 (section 193 evaluations
for CO and PM-10). In this regard, we note that the appropriate
comparison for the purposes of sections 110(l) and 193 is between the
submitted NSR program and the SIP-approved NSR program (from the early
1980's), not the locally-adopted (but not SIP-approved version) of the
NSR program (adopted in December 2001) that is being administered by
DAQEM. (The submitted Clark County NSR program (adopted in October
2003) will not be in effect until 30 days after we publish our final
approval of the program in the Federal Register.)
NMA Comment #4: EPA proposes to retain in the approved SIP 33
definitions from section 1 (``Definitions'') of the former Clark County
rules. EPA states that while these definitions may not affect this NSR
action, they may be needed for other existing non-NSR SIP rules. We
request that these definitions be deleted because retaining them may
create confusion. Two examples include the terms ``minor source'' and
``source of air contaminant.'' An additional and separate source of
confusion is that the numeric citations for the defined terms do not
correspond to the number citations currently used by DAQEM. The
proposal to retain section 1 definitions should be withdrawn and all
terms should be revised and consolidated into a single regulation that
would then be made part of the SIP.
Response to NMA Comment #4: We agree that EPA's approval of a
second Clark County rule (i.e., CCAQR section 0) entitled
``Definitions'' into the SIP is not ideal and may cause confusion.
However, there should be no confusion in the NSR context because, upon
the effective date of our final approval, new or modified sources in
Clark County will be subject to the requirements in CCAQR sections 12
and 59 that rely on the ambient standards in CCAQR section 11, the
credits in section 58, and the terms defined in CCAQR section 0, such
as ``nonmajor stationary source'' (see paragraph (c) under ``stationary
source'' in section 0) and will not be subject to the requirements in
the Clark County District Board of Health Air Pollution Control
Regulations section 15 (referred to herein as ``existing SIP section
15'' or ``SIP section 15'') that rely on the ambient standards in Board
of Health Air Pollution Control Regulations section 11 and the terms
defined in existing SIP section 1, such
[[Page 54010]]
as ``minor source'' and ``significant,'' since, at that time, SIP
section 15 will be entirely superceded in the SIP by CCAQR sections 12
and 59.
For the reasons stated in our proposed rule, at 69 FR at 31067, we
continue to believe that the SIP should retain 33 specific defined
terms from existing SIP section 1 because other Clark County rules
currently approved in the SIP continue to rely on these terms. Clark
County and the State of Nevada have not submitted the updated versions
(that rely on the defined terms in CCAQR section 0 rather than SIP
section 1) of these SIP rules, and until that submittal is made and
approved by EPA as a SIP revision, we must retain the 33 specific
defined terms from existing SIP section 1 on which these SIP rules
rely. Specific examples of existing SIP rules that rely on certain
definitions in existing SIP section 1 include the following:
Clark County District Board of Health Air Pollution
Control Regulations (i.e., ``existing SIP'' or ``SIP'') section 2
relies on the following terms defined in SIP section 1: ``air
contaminant,'' ``air pollution control committee,'' ``board,'' and
``source of air contaminant;''
Existing SIP section 4 relies on the following terms
defined in SIP section 1: ``air contaminant'' and ``source of air
contaminant;''
Existing SIP section 5 relies on the following term
defined in SIP section 1: ``smoke;''
Existing SIP section 18 relies on the following terms
defined in SIP section 1: ``minor source'' and ``single source'' and
the term ``minor source'' relies on the term ``significant;'' and
Existing SIP section 23 relies on the following terms
defined in SIP section 1: ``affected facility,'' and ``integrated
sampling.''
Lastly, while we recognize that there is a difference between the
numeric references for specific defined terms in the version of section
1 that DAQEM provides on its website and those cited by EPA in our June
2, 2004 proposed rule, the numeric references from the version of
section 1 that we cite in the proposed rule are those that we
incorporated by reference into the Code of Federal Regulations (CFR)
and, as such, reflect the EPA-approved version of SIP section 1. See 40
CFR 52.1470(c)(17)(i) and (ii) and 40 CFR 52.1470(c)(24)(iii) and see
also the rules posted for Clark County, Nevada on our Web site at
http://www.epa.gov/region09/air/sips. The version of section 1 that
Clark County posts on its Web site appears to be a ``cleaned-up''
version of SIP section 1 in which revision marks have been removed and
for which the terms have been renumbered to reflect added and deleted
terms. In contrast, the version of SIP section 1 cited by EPA in the
proposed rule represents an amalgam of terms approved by EPA at
different times in 1981 and 1982. See the related discussion in the
proposed rule at 69 FR at 31057, column 1.
NMA Comment #5: By operation of federal law, a portion of Clark
County is still designated as a serious nonattainment area for CO; as a
result, NSR requirements for nonattainment areas apply. However, the
reality is that control of mobile and stationary sources has
substantially improved air quality in Clark County, to the point that
it now qualifies for redesignation as an attainment area for CO. Such
redesignation is now in order. On January 28, 2003, EPA declared that
no exceedances of the CO standard had been recorded in Clark County
since 1998. Stationary sources are an insignificant source of CO
emissions in Clark County and the burdensome nonattainment regulation
of stationary sources is no longer necessary to show progress towards
or to maintain air quality standards. We therefore request that EPA
redesignate the area as expeditiously as possible and, with DAQEM,
revise the NSR rules for stationary sources accordingly.
Response to NMA Comment #5: We agree that certain changes in NSR
program requirements are allowed once an area has been redesignated
from nonattainment to attainment. However, the Las Vegas Valley CO
nonattainment area cannot be redesignated to attainment until all of
the redesignation criteria set forth in section 107(d)(3)(E) of the Act
have been met. In our January 28, 2003 proposed rule on the serious
area CO plan (68 FR 4141 at 4142), we cited the record of clean data
over recent years from the DAQEM CO monitoring network, but that action
did not propose a finding of CO attainment (but did propose approval of
the Las Vegas Valley CO attainment plan and vehicle inspection and
maintenance program). We expect to propose an attainment finding for CO
in the near future, but we note here such a finding is but one of the
five criteria that must be met before a CO nonattainment area can be
redesignated to attainment. Another criterion relates to approval by
EPA of a CO maintenance plan, which EPA understands to be currently
under development by Clark County. Upon redesignation, EPA will
consider any submitted changes to the requirements under Clark County's
NSR program for new or modified stationary sources of CO in light of
the County's future CO maintenance strategy.
NMA Comment #6: EPA proposes to evaluate the submitted Clark County
NSR program on the basis of Federal NSR regulations that are no longer
in effect. This approach creates completely unnecessary and unjustified
confusion. The Clark County NSR program should be evaluated based on
current Federal NSR regulations. Review and evaluation of Clark
County's NSR program based on current Federal NSR regulations is
mandated by the CAA.
Response to NMA Comment #6: Our June 2, 2004 proposed rule explains
that we evaluated the submitted NSR program against the Federal NSR
regulations that were in effect when the rules were being revised to
address issues raised by EPA in the wake of the Hall decision. See 69
FR at 31058, column 3. We disagree that this approach creates
unnecessary confusion, and we disagree that the Act or our regulations
prohibits us from taking this approach. One significant, on-going
source of confusion that will be resolved by this final rule will be
the need by DAQEM to reconcile the NSR program requirements under the
County's adopted (but not EPA-approved) Air Quality Regulations with
those under the NSR program approved by EPA as part of the SIP. As it
stands now, new or modified stationary sources in Clark County must
comply with two sets of NSR rules: current, locally-adopted CCAQR
sections 12 and 59 (and related provisions in sections 0, 11, and 58)
and SIP-approved section 15 (and related provisions in SIP sections 1
and 11). The submitted NSR program represents a comprehensive revision
to Clark County's EPA-approved NSR program from the early-1980's (and
contained in sections 1, 11, and 15), and as such, compliance with both
sets of rules is at the very least challenging and at worst confounding
for the regulated community. Today's final rule will close this ``SIP
gap'' and thereby ease the associated regulatory confusion.
The proposed rule indicated (69 FR 31057, column 3) that our
approach does not establish any precedent for evaluating whether a
proposed NSR SIP fulfills the requirements of the revised NSR
regulations that were published on December 31, 2002. Furthermore, we
indicated at 69 FR at 31058, that the NSR revision that is the subject
of this action does not relieve Clark County, like other State and
local agencies, from adopting and submitting revisions to its SIP-
approved NSR rules implementing the minimum program requirements set
forth in the revised Federal NSR regulations (published on December 31,
2002) no later than January 2, 2006. Today's final rulemaking simply
means
[[Page 54011]]
that the NSR revisions that are due by January 2, 2006 will be using
CCAQR sections 0, 11, 12, 58, and 59, as submitted on October 23, 2003,
as the SIP baseline NSR regulatory program instead of the 1980's-era
sections 1, 11, and 15. None of the statutory or regulatory provisions
cited by NMA require EPA to wait several more years to approve all of
the necessary NSR revisions in a single rulemaking.
DAQEM Comment #1: In the discussion of NOX requirements
(69 FR 31063), the statement is made that section 12 of the Clark
County regulations represents a relaxation of the ``control technology
requirements for new or modified sources (from LAER to BACT).'' In
fact, the NSR regulation in the current SIP contains no provisions for
NOX nonattainment areas and contains no control technology
requirements for NOX (Section 15.14). Thus, superseding that
section with the Section 12 imposition of a BACT requirement is
actually a strengthening of the NSR rules.
Response to DAQEM Comment #1: We agree that the existing SIP NSR
program (sections 1, 11, and 15) has no provisions for NOX
nonattainment areas, but we disagree with DAQEM's conclusion that the
existing SIP NSR program contains no control technology requirements
for NOX. Subsection 15.13.1 sets forth the existing SIP NSR
requirements for ``all new, reconstructed or modified sources'' of
NOX ``throughout Clark County'' and thereby establishes a
control technology requirement, at the very least, of best available
control technology (BACT) (see subsection 15.13.9.2). Furthermore, we
concluded in the proposed rule that SIP subsections 15.14.1 (``all new,
or reconstructed, or modified stationary sources * * * of * * *
particulate precursors * * * in the Las Vegas Valley * * *'') and
15.14.1.3 (``Each new or modified source * * * shall incorporate * * *
lowest achievable emission rate.'') tighten the control technology
requirement (i.e., to the lowest achievable emission rate (LAER)) for
new or modified NOX sources in Las Vegas Valley, not on the
basis of NOX as a precursor to nitrogen dioxide (for which
the entire county is attainment), but rather as a ``particulate
precursor,'' which is defined in section 1 as ``a gaseous air
contaminant which can undergo gas-to-particle conversion processes in
the ambient air to form particulate matter. Examples: (1) Ammonia,
sulfur dioxide, chlorine, and nitrogen oxides can be converted to
ammonium sulfate, ammonium nitrate, and ammonium chloride. (2) Volatile
organic compounds can be converted to organic and elemental carbon
particulate.'' See the subsection entitled ``Nitrogen Dioxide SIP
Planning Considerations,'' in the Technical Support Document (TSD) for
our proposed action on the submitted Clark County NSR program.
The difference between DAQEM's interpretation and EPA's
interpretation of the NOX requirements in Las Vegas Valley
under the existing SIP NSR program highlights the ambiguity of the term
``particulate precursor.'' In our June 2, 2004 proposed rule, we did
not recognize this existing SIP term as ambiguous, and evaluated the
NOX control requirements in Las Vegas Valley accordingly,
but upon reconsideration in light of DAQEM's comment, we have concluded
that the term ``particulate precursor,'' as defined in section 1, is
ambiguous because the term refers to examples of the types of gaseous
air contaminants that can theoretically lead to secondary particulate
formation (i.e., can be particulate precursors) rather than to a list
of gaseous air contaminants that are in fact significant precursors to
particulate under the actual ambient conditions found in Las Vegas
Valley.\3\
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\3\ In a recent final rule on the Las Vegas Valley PM-10
attainment plan, we concluded that major sources of PM-10 precursors
such as nitrogen oxides and sulfur dioxide do not significantly
contribute to violations of the PM-10 standards. See 69 FR 32273, at
32274, column 1 (June 9, 2004).
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Given the ambiguity we now recognize in the term ``particulate
precursor,'' as used for the purposes of the existing SIP NSR program,
we conclude that, while it is clear that at least BACT-level of control
is required for all new or modified NOX sources throughout
Clark County, it is unclear whether the most stringent control
technology requirement (LAER) applies to new or modified NOX
sources in Las Vegas Valley under the existing SIP NSR program.
However, this uncertainty only strengthens our conclusion from the
proposed rule, that despite the incremental relaxation in the control
technology requirement in Las Vegas Valley for new or modified
NOX sources (a relaxation that we now recognize as
uncertain), supercession of the existing SIP NSR program by the
submitted NSR program would not interfere with continued attainment of
the nitrogen dioxide NAAQS or any other applicable requirement of the
Act. See our proposed rule at 69 FR at 31063, column 1.
NEC Comment #1: Two of the applicable requirements that would be
violated with the approval of the submitted NSR program as a SIP
revision are CAA sections 116 and 193. The logic of sections 116 and
193 is very clear. When an existing plan fails to result in the
attainment of the NAAQS, no subsequent revision of the plan's
requirements can be less stringent than the rules that have already
failed to result in attainment. With EPA's continued assistance, DAQEM
is again proposing regulations that are less stringent than those that
have already failed to result in attainment of the NAAQS. EPA has
failed to address section 116 requirements in their entirety in the
proposed rule and TSD and proposes approval of the submitted NSR
program despite an admission of relaxations in its section 193
discussion of CO and PM-10.
Response to NEC Comment #1: NEC contends that CAA section 116
requires that SIP revisions that would supercede pre-existing EPA-
approved SIP rules be no less stringent than those EPA-approved SIP
rules individually or collectively. NEC contends that EPA has ignored
the requirements of CAA section 116, but NEC misreads CAA section 116.
Section 116 provides:
``Except as otherwise provided in sections 119(c), (e), and (f)
(as in effect before the date of the enactment of the Clean Air Act
Amendments of 1977), 209, 211(c)(4), and 233 (preempting certain
State regulation of moving sources) nothing in this Act shall
preclude or deny the right of any State or political subdivision
thereof to adopt or enforce (1) any standard or limitation
respecting emissions of air pollutants or (2) any requirement
respecting control or abatement of air pollution; except that if an
emission standard or limitation is in effect under an applicable
implementation plan * * * such State or political subdivision may
not adopt or enforce any emission standard or limitation which is
less stringent than the standard or limitation under such plan * *
*.''
NEC's reading of section 116 as imposing requirements for SIP
revisions or a blanket prohibition on relaxation of SIPs would be
inconsistent with CAA sections 110(l) and 193, which specify the
criteria to be applied in evaluating SIP revisions. In pertinent part,
CAA section 110(l) provides:
``The Administrator shall not approve a revision of a plan if
the revision would interfere with any applicable requirement
concerning attainment and reasonable further progress (as defined in
section 171), or any other applicable requirement of this Act.''
CAA section 110(l) does not preclude SIP relaxations but requires
that relaxations not interfere with specified requirements of the Act
including requirements for attainment and reasonable further progress.
Thus, if an area can demonstrate that it will continue to attain or
maintain the NAAQS and meet any applicable
[[Page 54012]]
reasonable further progress goals or other specific requirements, it
may revise SIP provisions, even if the revision amounts to a
relaxation. See Hall v. EPA, 273 F.3d 1146, 1160 (9th Cir. 2001)
(explaining that to make a finding under CAA section 110(l), ``EPA must
be able to conclude that the particular plan revision before it is
consistent with the development of an overall plan capable of meeting
the Act's attainment requirements.''). Our proposed rule provides a
detailed evaluation of the submitted NSR program under section 110(l).
We have compared the submitted NSR program and the EPA-approved (i.e.,
existing SIP) NSR program that it would replace and evaluated the
effect of the changes to the NSR program within the context of ambient
air quality trends and compliance with CAA attainment planning
requirements. We conclude that replacement of the existing SIP NSR
program with the submitted NSR program would not interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the Act. See 69 FR at
31060-31063.
Even if a SIP revision is approvable under section 110(l), CAA
section 193 imposes additional restrictions on modifications to certain
SIP control requirements in nonattainment areas that were in effect
prior to the 1990 Clean Air Act Amendments (``pre-1990 control
requirements''). In pertinent part, CAA section 193 provides:
``No control requirement in effect, or required to be adopted by
an order, settlement agreement, or plan in effect before the date of
the enactment of the Clean Air Act Amendments of 1990 in any area
which is a nonattainment area for any air pollutant may be modified
after such enactment in any manner unless the modification insures
equivalent or greater emission reductions of such air pollutant.''
Thus, while NEC's interpretation of CAA section 116 as providing a
broad prohibition against SIP relaxations is erroneous, CAA section 193
does limit nonattainment areas from backsliding from the emissions
reductions achieved by pre-1990 control requirements. In our proposed
rule, we provide a detailed evaluation of the submitted NSR program
under CAA section 193. See 69 FR at 31063-31065. In that evaluation,
which covers the two pollutants (CO and PM-10) for which Las Vegas
Valley was designated nonattainment at the time of the 1990 CAA
Amendments and remains so designated, we indicate specific instances
where the requirement under the submitted NSR program, such as the
control technology requirement for minor sources, would be less
stringent (BACT) than under the existing SIP NSR rules (LAER). Thus, we
acknowledge the relaxation of certain program elements, but our
evaluation under CAA section 193 does not end there. We evaluated the
NSR programs as a whole taking into account all of the programs'
elements (such as the control technology requirements, major stationary
source thresholds, offset ratios, etc.) in concluding that the
submitted NSR program will result in equivalent or greater mitigation
of CO and PM-10 emissions increases due to new source growth relative
to the existing SIP NSR program.\4\
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\4\ CAA section 193 uses the phrase ``equivalent or greater
emission reductions,'' but, in the context of NSR programs, which
are not specifically designed to produce emissions reductions
themselves but to assure that stationary source growth occurs in a
manner that is consistent with an area's overall control strategy,
the phrase means equivalent or greater mitigation of emissions
increases due to new stationary source growth.
---------------------------------------------------------------------------
Thus, in summary, EPA concludes that although the SIP revision does
relax certain CO and PM-10 provisions of the NSR program, the SIP
revision as a whole satisfies section 110(l) because it is consistent
with the area's overall control strategy, which takes into account
ambient trends and CAA planning requirements and which was recently
approved by EPA in separate rulemakings (see response to NEC comment
6), and it satisfies section 193 because the submitted NSR
program provides equivalent or greater mitigation of emissions
increases compared to the existing SIP NSR program.
NEC Comment #2: Clark County was recently declared a nonattainment
area for ozone. The relaxations in proposed controls for the ozone
precursor pollutants (volatile organic compounds (VOC) and
NOX) that are in the proposed SIP are a relaxation from the
existing SIP. The situation is similar to the relaxations for CO and
PM-10. Instead of dealing with the issue, EPA has chosen to keep that
relaxation from the discussion.
Response to NEC Comment #2: Contrary to NEC's contention, the
regulatory context for review of the submitted Clark County NSR program
is different for ozone than for CO or PM-10. For the latter pollutants,
the nonattainment designations were re-affirmed by the 1990 CAA
Amendments and continue to the present day. In contrast, for ozone,
prior to the 1990 CAA Amendments, implementation of an effective
control strategy for the only ozone NAAQS then in existence (the 1-hour
ozone NAAQS) led to our redesignation of Las Vegas Valley from
nonattainment to attainment. Las Vegas Valley continues to attain the
1-hour ozone NAAQS to the present day. In 1997, EPA promulgated a
revised NAAQS for ozone based on an 8-hour average. Following
significant legal challenges to the 8-hour ozone NAAQS, we promulgated
designations earlier this year for all areas of the country for the 8-
hour ozone NAAQS, and Clark County was one of the areas that we
designated as nonattainment. (The 1-hour ozone NAAQS continues to be in
effect until June 2005 when it will be revoked.) In our proposed rule,
we acknowledge this recent designation for the 8-hour ozone NAAQS at 69
FR 31062, column 3. More recently, we deferred the effective date of
the designation until September 13, 2004 to allow the State the
opportunity to provide us with information that would support a
nonattainment area boundary other than the county boundary. See 69 FR
34076 (June 18, 2004). A nonattainment designation triggers certain CAA
requirements and will lead to future SIP revisions that must be
submitted prior to dates yet to be established by EPA.
We provide a section 110(l) evaluation in our June 2, 2004 proposed
rule of the submitted NSR program with respect to the ozone NAAQS. See
69 FR at 31062-31063. In that discussion, we acknowledge certain
incremental relaxations in the VOC control technology requirement but,
similar to our discussion of PM-10 and CO, we conclude that other
aspects of the overall NSR submittal provide us with the basis to
conclude that the submitted NSR program (and supercession of the
existing SIP NSR program) would not interfere with attainment and
reasonable further progress towards attainment of the ozone NAAQS, or
any other requirement under the Act. In support of this conclusion in
the case of the ozone NAAQS, we point to the following: (1) The
submitted NSR program would replace a ``potential-to-potential'' test
with the ``actual-to-potential'' test for evaluating proposed
stationary source modifications with the result that a greater number
of modifications would be subject to new source review (and thereby to
the control technology requirements, etc.) under the submitted NSR
program than under the existing SIP NSR program (see 69 FR 31061,
column 1); (2) significant Clark County non-NSR SIP rules and EPA motor
vehicle tailpipe and fuel regulations that regulate VOC emissions would
be unaffected by this action (see 69 FR 31062, column 3); (3) the
[[Page 54013]]
relaxation under the submitted NSR program with respect to the VOC
control technology requirement for minor VOC sources in Las Vegas
Valley would be incremental (LAER to BACT) instead of total (LAER to
uncontrolled) (see, generally, 69 FR at 31064, column 2); and (4) there
would be an incremental strengthening (BACT to LAER) under the
submitted NSR program of the VOC control technology requirement for new
or modified major VOC sources in areas generally upwind of Las Vegas
Valley (see 69 FR 31062).
Although the CAA section 110(l) evaluation summarized above was
prepared in connection with the 1-hour ozone NAAQS, the same rationale
also applies to the 8-hour ozone NAAQS. Thus, in summary, EPA concludes
that although the SIP revision does relax certain VOC provisions of the
NSR program, the SIP revision as a whole satisfies section 110(l)
because it is consistent with the area's EPA-approved ozone control
strategy, and because, given the trade-offs concerning VOC requirements
between the two programs as discussed above and the inherent difficulty
in determining with precision the net effect on VOC emissions of
replacement of the existing SIP NSR program with the submitted NSR
program (which would depend upon assumptions regarding the number and
potential-to-emit of future new and modified sources in addition to
their proposed locations within Clark County), we believe that it is
reasonable to conclude that the submitted NSR program provides
equivalent or greater mitigation of VOC emissions increases compared to
the existing SIP NSR program.
The State and Clark County developed the approved ozone control
strategy to attain the 1-hour ozone NAAQS, but it also serves as the
base control strategy from which the State and Clark County will
develop an 8-hour ozone control strategy. EPA will be establishing the
schedule that the State and Clark County must follow to develop an 8-
hour control strategy in a final rule implementing the 8-hour ozone
NAAQS.
NEC Comment #3: EPA accepts relaxations in control technology
requirements by discussing NSR offset requirements. Offset requirements
are completely different than control requirements. Over the past 20+
years since approval of the existing SIP NSR program, neither EPA nor
DAQEM have required or enforced the offset requirement in Clark County,
despite numerous sources that have triggered the requirement, and for
that reason, the public does not have much confidence that either will
now start enforcing it. As a result, the offsets requirements that EPA
relies on in the proposed approval amount to ``paper only'' emissions
reductions.
Response to NEC Comment #3: In our proposed rule, we rely on the
offset requirements in the submitted NSR program to mitigate the higher
level of emissions from new or modified sources that might otherwise
occur from a more stringent control technology requirement (e.g., LAER
for minor sources) than the submitted program (BACT for minor sources).
We also note the improved regulatory structure of the new NSR rule that
clearly specifies the ``quality'' of offsets required. By ``quality,''
we refer to the requirements, such as those set forth in CCAQR section
59, subsection 59.4, that emission reductions used to satisfy a Federal
offset requirement must be surplus, permanent, quantifiable and
federally enforceable, as those terms are defined in CCAQR section
0.\5\ From a practical standpoint, the added regulatory clarity should
enhance compliance with the requirements by permit applicants as well
as enforcement of those requirements by DAQEM and EPA.
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\5\ Section 15, subsection 15.14.4.3.3, appears to establish
certain requirements for creation and use of offsets under the
existing SIP NSR program. However, a typographical error in the
listing of this particular subsection in both our proposed
rulemaking (see 47 FR 7267, February 18, 1982), and final rulemaking
(see 47 FR 26620, June 21, 1982) cast doubt on the validity of EPA's
approval of that subsection into the SIP. Also, see 40 CFR
52.1470(c)(24)(iii).
---------------------------------------------------------------------------
NEC Comment #4: The discussion regarding Clark County's local, road
paving, and offset credit program fails to discuss the fact that the
program has been a misleading program all along. The offset credits
under the local program cannot be replicated because they are not real.
The local offset program was never intended to reduce air pollution.
Despite this, the EPA and DAQEM continue to support the local emission
reduction credit program used by favored sources to evade Federal
offset requirements that EPA and DAQEM say are part of the submitted
NSR rules.
Response to NEC Comment #4: As discussed above in response to NMA
comment 1, DAQEM and the State requested EPA to withdraw the
approval of subsection 59.2 as part of the SIP. As a result, we no
longer have authority to act on subsection 59.2 (``Local Offset
Requirements''), and subsection 59.2 will therefore not be approved
into the SIP. Subsection 59.2 (specifically, subsection 59.2.7.1)
contains the provisions allowing use of Road Paving Credits as PM-10
offsets. In accordance with CCAQR regulations (see CCAQR subsection
59.2.1), the Road Paving Credits are not available for use by new major
sources or major modifications of PM-10 to comply with Federal offset
requirements. We are therefore not addressing the issue of whether
those credits would hypothetically be valid in meeting Federal offset
requirements. As we state in response to NEC comment 4, we
expect that the more detailed specifications in submitted CCAQR section
59, subsection 59.4 (and the related definitions set forth in CCAQR
section 0) regulating the creation and use of emissions reductions for
the purposes of satisfying the offset requirements will enhance both
compliance and enforcement efforts compared to the existing SIP NSR
program.
NEC Comment #5: One way to ascertain if reasonable further progress
has been made is to review air quality in 1980 and compare it to today.
The Las Vegas Valley was in nonattainment for particulate matter,
ozone, and CO in 1980. As of the writing of this comment, some of the
rules were changed, but the valley remains in nonattainment for all
three pollutants.
Response to NEC Comment #5: The Clean Air Act defines ``reasonable
further progress'' as ``such annual incremental reductions in emissions
of the relevant air pollutant as are required by this part or may
reasonably be required by the Administrator for the purpose of ensuring
attainment of the applicable national ambient air quality standard by
the applicable date.'' See CAA section 171(1). Thus, reasonable further
progress (RFP) is judged from an emissions standpoint and does not
correlate directly to ambient concentrations, which reflect
meteorological conditions that vary from year to year as well as
emissions trends. However, over the long term, as NEC suggests, the
trend in concentrations should be downward if there has in fact been
``reasonable further progress.'' In Las Vegas Valley, as discussed on a
pollutant-by-pollutant basis in the following paragraphs, the
monitoring data shows improvement for all three pollutants for which
Las Vegas Valley is, or was, nonattainment, i.e., CO, particulate
matter (TSP and PM-10), and (one-hour) ozone, relative to conditions
that prevailed in the valley in the late 1970's and early 1980's.
Carbon Monoxide. In the late 1970's and early 1980's, the 1982 Air
Quality Implementation Plan Update (June 1, 1982) indicates that the
number of days per year during which an exceedance of the CO NAAQS was
recorded was about
[[Page 54014]]
30. In contrast, since 1998, there have been no recorded exceedances of
the CO NAAQS. See our proposed approval of the 2000 Las Vegas Valley
serious area CO SIP at 68 FR 4141, at 4142, column 1 (January 28,
2003). The carbon monoxide control strategy has relied primarily on
Federal motor vehicle emissions standards, wintertime State and local
fuel specifications, and an ``enhanced'' vehicle inspection and
maintenance program to improve CO conditions in Las Vegas Valley. In
our June 2, 2004 proposed rule, we discuss how the submitted NSR
program is consistent with the CO control strategy and the serious area
CO SIP (which we recently approved). See 69 FR at 31061, column 3 and
31062, column 1.
Particulate Matter. During the 1977 through 1979 period, the number
of days per year during which an exceedance of the particulate matter
NAAQS (then defined in terms of total suspended particulate (TSP)) was
recorded averaged 14 based on summaries of monitoring data compiled for
the Revised Air Quality Implementation Plan (November 18, 1980). The
particulate matter NAAQS was revised to refer to PM-10, rather than
TSP, in 1987, so a direct comparison between current conditions and
those in the late 1970's is not possible. Nonetheless, a comparison
between the older TSP data and the current PM-10 data provides a rough,
if imprecise, basis for evaluating relative progress in reducing
particulate matter concentrations in the valley over time. In that
regard, we note that, during the 1997 through 1999 period, the number
of days per year during which an exceedance of the PM-10 NAAQS was
recorded averaged 10 based on data compiled for the PM-10 State
Implementation Plan for Clark County (June 2001). Thus, while progress
in attaining the particulate matter NAAQS has been slow, the approved
2001 PM-10 attainment plan is the first Las Vegas Valley plan to
contain a comprehensive set of regulations addressing fugitive dust
sources, the predominant sources of ambient PM-10 in the valley. We
approved the fugitive dust regulations, CCAQR sections 90 through 94,
as part of the final rule approving the 2001 Las Vegas Valley PM-10
attainment plan. See 69 FR 32273 at 32276 (June 9, 2004). Also as part
of the 2001 PM-10 attainment plan approval, we approved the
demonstration of attainment of the PM-10 NAAQS in Las Vegas Valley by
the end of 2006. In our June 2, 2004 proposed rule, we discuss how the
submitted NSR program is consistent with the PM-10 control strategy and
serious area PM-10 attainment plan (which we recently approved). See 69
FR at 31062, columns 1 and 2.
Ozone. During the 1980 through 1983 period, the number of days per
year in which an exceedance was recorded varied from 1 to 14 based on
data contained in the Air Quality Implementation Plan, Post 1982 Update
(July 1984). By the mid-1980's, the 1-hour ozone NAAQS had been
attained in Las Vegas Valley, and EPA redesignated the area as an
``attainment'' area for the 1-hour ozone NAAQS in 1986. See 51 FR 41788
(November 19, 1986). The ozone control strategy relied primarily on
Federal motor vehicle emissions standards and local stationary source
regulations, including, among others, Clark County District Board of
Health Air Pollution Control Regulation Section 33 (``Chlorine in
Chemical Processes''). Our proposed rule on the submitted NSR program,
at 69 FR at 31062, column 3, notes that, since 1986, peak ozone levels
have remained relatively constant at 0.09 parts per million (ppm) to
0.10 ppm, but peak levels in recent years have approached the 1-hour
ozone NAAQS of 0.12 ppm. In our proposed rule, we discuss how the
submitted NSR program is consistent with the 1980's-era 1-hour ozone
control strategy. See 69 FR at 31062, columns 2 and 3, and 31063,
column 1.
As noted in response to NEC comment 2, EPA recently
designated Clark County as a nonattainment area for the 8-hour ozone
NAAQS (promulgated by EPA in 1997) but deferred the effective date for
that designation until September 13, 2004. Upon the effective date of
the new designation, certain changes in the Clark County NSR program
will be required under either the submitted or existing SIP NSR program
(e.g., LAER and offsets for VOC and NOX major sources and
major modifications throughout Clark County or designated subportion
thereof).
NEC Comment #6: DAQEM has yet to produce an accurate and
comprehensive emissions inventory for the nonattainment area. DAQEM
uses air quality calculations that are not credible in order to justify
the desired paper-only end result. For example, the emissions inventory
from the ``moderate area'' plans from the mid-1990's show little
resemblance to the current ``serious area'' plans. A specific instance
is demonstrated by the PM-10 emissions estimates from vacant land that
doubled between the ``moderate area'' PM-10 plan, which was withdrawn,
and the ``serious area'' PM-10 plan. It is also not credible that the
plans project lower emissions despite a population that has tripled in
20 years. Also, certain emissions sources are completely missing from
the inventories, such as new power plants and a proposed airport.
The amount of industry emissions has increased since 1979 and for
that reason alone, LAER triggers should not be relaxed. We cannot go
from LAER to less than that without having an impact on attainment. PM-
10 emissions have not been reduced in reality. DAQEM has utilized
drastically lower emission factors to estimate emissions. There is no
justification for the data presented in the proposed approval. Industry
has grown but the emissions inventory does not show the same increase
in emissions since the emission factors have been reduced.
Another trick DAQEM has mastered over the years is the manipulation
of the choice of monitoring sites and management's ability to shut down
monitors just as they appear to reach the level of NAAQS exceedances.
DAQEM places only the official monitors in areas of the valley that
have proven through previous monitoring to rarely report exceedances.
According to CAA section 188(e), the ``serious area'' PM-10
attainment date may also be extended if the rules are followed. Clark
County has not followed the rules. One criteria for an extension is
that the plan for the area includes the most stringent measures that
are included in the implementation plan of any State or are achieved in
practice in any State. The EPA has admitted that many of the control
and offset requirements of the proposed plan are not as stringent as
the existing plan. DAQEM has noted that most sources in the
nonattainment area are non-major sources. It is these non-major sources
that represent the majority of emissions whose emissions are being
relaxed the most by the proposed regulation. For all of the reasons
herein, we object to the proposed 5-year extension to 2006 for
attainment.
Response to NEC Comment #6: NEC objects to several aspects of the
Las Vegas Valley CO and PM-10 attainment plans, including the
characterizations of baseline ambient conditions based on data from the
monitoring network, the emissions inventories, the control measures,
and the attainment demonstrations. We are taking no action today
related to these plans but do recognize that, in our June 2, 2004
proposed rule on the submitted NSR program, our rationale for
determining that the submitted NSR program would not interfere with
attainment of the CO and PM-10 NAAQS under section
[[Page 54015]]
110(l) of the Act was based in part on our evaluations, and proposed
approvals (in separate notices published in January 2003), of the CO
and PM-10 attainment plans. See 68 FR 4141 (January 28, 2003) (CO plan
proposed approval) and 68 FR 2954 (January 22, 2003) (PM-10 plan
proposed approval).
Specifically, in our section 110(l) evaluation for CO, we based our
conclusion in part on our previous evaluation and proposed approval (in
the January 28, 2003 notice) of the CO attainment plan's inventories,
including how those inventories account for stationary sources, our
proposed approval of the plan's conclusion that stationary sources are
not a significant contributor to CO levels in the valley, and our
proposed approval of the attainment demonstration with reliance on on-
road motor vehicle measures (e.g., emissions standards, fuels, an
inspection and maintenance program, and transportation control
measures) not stationary source controls. See 69 FR at 31061-31062 and
the related discussion in the TSD on our proposal on the submitted NSR
program at pages 31 through 37.
With respect to PM-10, we based our conclusion in part on our
evaluation and proposed approval (in the January 22, 2003 notice) of
the PM-10 attainment plan's inventories, including how those
inventories account for stationary source emissions, the plan's
conclusion that stationary sources are not a significant contributor to
PM-10 NAAQS violations in the valley, and the plan's attainment
demonstration based on implementation of new fugitive dust controls,
not stationary source controls.
Subsequent to publication of our June 2, 2004 proposed rule on the
submitted NSR program, we took final actions, after due consideration
of public comments, to approve the inventories and strategies in the CO
and PM-10 attainment plans, and thus, our continued reliance on those
plan elements in support of today's final approval of the submitted NSR
program under section 110(l) is appropriate. (The final rule approving
the CO plan was signed on July 23, 2004 but has not yet been published
in the Federal Register; the final rule approving the PM-10 plan was
published at 69 FR 32273 (June 9, 2004).)
Most of the specific issues raised by NEC on the attainment plans
in this comment were raised previously in the context of our January
2003 proposed approvals on the CO and PM-10 plans, and thus, we rely
primarily on our consideration of those comments as documented in the
Response to Comments Documents prepared in conjunction with our final
actions on the plans but also address newly-raised issues in the
following paragraphs, which are organized by general subject matter.
Lack of Accurate and Comprehensive Emissions Inventories for the
Nonattainment Area: We disagree with this contention and believe that
the baseline inventories in these plans represent comprehensive,
accurate, and current estimates of actual emissions in the
nonattainment area for the reasons set forth in our Response to
Comments Documents for the CO and PM-10 attainment plan approvals. See
CO Plan Final Rule Response to Comments Document, responses to NEC
comments 12, 14, and 17 through 23; and PM-10 Plan Final Rule Response
to Comments Document, pages 7 through 13.
Emissions Trends Inversely Proportional to Population Growth: For
CO, through 2010, the beneficial effect of motor vehicle and fuel-
related CO control measures on CO emissions will more than offset
region-wide increases in vehicle-miles-traveled and thereby provide for
a net downward trend in CO emissions. See CO Plan Final Rule Response
to Comments Document, response to NEC comment 6. For PM-10,
the explanation lies in the adoption, implementation, and enforcement
of a comprehensive set of regulations (Clark County sections 90 through
94) that address the sources of approximately 90% of the PM-10
emissions inventory in Las Vegas Valley, i.e., fugitive dust sources,
including open areas, vacant lots, unpaved roads, unpaved alleys, and
unpaved easement roads, unpaved parking lots, paved roads and street
sweeping equipment, and construction activities. See the TSD for our
proposed rulemaking on the submitted NSR program under the subsection
entitled ``PM-10 SIP Planning Considerations.''
Significant Differences in Current Emissions Estimates Compared to
Estimates Published in Previous Plans: Changes in EPA-approved
emissions calculation procedures and models necessitate a re-figuring
of emissions in updated plans, and the emissions estimates in the
current CO and PM-10 plans are well documented and represent an
improvement over the corresponding estimates in previous submitted
plans. See CO Plan Final Rule Response to Comments Document, response
to NEC comment 12; and PM-10 Plan Final Rule Response to
Comments Document, responses to comments 7, 8 and
11.
Stationary Source Trends: For CO, the attainment plan reasonably
assumes that emissions from major sources would remain unchanged after
the baseline date (1996) due to the offset requirement for such sources
but assumes that emissions from minor sources would increase in
proportion to growth projections for the manufacturing sector. See CO
Plan Final Rule Response to Comments Document, response to NEC comment
22. For PM-10, the attainment plan reasonably assumes that
emissions from stationary sources would remain relatively constant from
1998 through the attainment year (2006) as the growth in PM-10
emissions that would otherwise be expected to occur roughly in
proportion to population is offset by the combination of the
application of LAER (all new major stationary sources and major
modifications) or BACT (all other new stationary sources and
modifications) and the expected downturn in two important PM-10
stationary source categories (sand and gravel operations and asphalt
concrete manufacturing) due to declining rates of population growth and
associated construction activity. See the TSD for our proposed
rulemaking on the submitted NSR program under the subsection entitled
``PM-10 SIP Planning Considerations.''
Inadequate Monitoring Network: We disagree with this contention and
conclude in our final actions on the CO and PM-10 plans that the data
from the monitoring network were sufficient for development of the
attainment plans although we acknowledge certain deficiencies in the
monitoring network that Clark County is in the process of fixing. See
CO Plan Final Rule Response to Comments Document, responses to NEC
comment 8; and PM-10 Plan Final Rule Response to Comments
Document, pages 2 through 7.
Extension of PM-10 Attainment Date and Most Stringent Measures
(MSM) Evaluation: We believe that Clark County has adequately
identified the significant source categories for which best available
control measures (BACM) and most stringent measures (MSM) must be
provided, has demonstrated that adopted BACM and MSM are being
implemented as expeditiously as practicable, and has provided adequate
technological or economic justifications for rejecting additional
control measures that theoretically could have provided for a 2001
attainment date. See PM-10 Plan Final Rule Response to Comments
Document, pages 30 through 37 and pages 40 through 42. Finally, we note
that NSR itself is not a ``measure'' that need be considered as a
``most stringent measure'' under section 188(e). NSR affects new or
modified sources whereas BACM and MSM represent measures to reduce
emissions from existing sources. We note that any revisions to an NSR
[[Page 54016]]
program, such as the replacement of a LAER requirement by a BACT
requirement for non-major (minor) sources, applies only prospectively,
and that, for example, air permits that apply LAER level of control for
non-major sources and issued prior to the change in the NSR program
would not be affected by the change in the NSR program. That is, the
permit condition or conditions that apply LAER to the given source
remain enforceable after the change in the NSR program. Only new
sources and source modifications that receive permits after the
effective date of the change in the NSR program would be affected.
NEC Comment #7: If actual credible data was reported, the Apex
Valley would have been declared a nonattainment area years ago.
Instead, the EPA is helping DAQEM develop another relaxation of the
regulations in the form of process called a ``Natural Events Action
Plan'' (NEAP). The NEAP's sole purpose to cast out data that does not
fit the pre-conceived outcome that the EPA and DAQEM have projected for
health-based NAAQS. We do not believe that the NEAP has any lawful
statutory basis and the practice is highly misleading. We reaffirm our
request for full NEAP disclosure without further delay.
Response to NEC Comment #7: In light of this comment, we have
reconsidered our evaluation of the submitted NSR program under section
110(l) as it relates to PM-10 emissions in Apex Valley, and we now
believe that our conclusion in the proposed rule that there would be an
incremental relaxation in NSR requirements under the submitted NSR
program (relative to the existing SIP NSR program) in that area with
respect to PM-10 but that such relaxation would be acceptable in part
because of the future development of a Natural Events Action Plan was
in error. We no longer believe it appropriate to rely on the
development of a Natural Events Action Plan for Apex Valley to support
our revised evaluation. As explained further below, our evaluation of
the submitted NSR program was predicated on a mistaken interpretation
of the PM-10 requirements for new or modified sources in Apex Valley
under the existing SIP NSR program. Our revised interpretation of the
existing SIP NSR requirements in Apex Valley has not changed our basic
conclusion, i.e., that the submitted NSR program would not interfere
with attainment of the PM-10 NAAQS under section 110(l) of the Act, but
it has changed the underlying rationale for that conclusion.
In the proposed rule, we relied solely on existing SIP subsection
15.14.1 to conclude that the requirements of subsection 15.14 (such as
LAER and, for some sources, offsets) apply to new or modified sources
of PM-10 in Apex Valley. In pertinent part, subsection 15.14.1 states:
``This section applies to all new, or reconstructed, or modified
stationary sources of * * * particulate * * * proposing to locate: (1)
in the Las Vegas Valley, or * * * (3) in any other area in Clark County
in which the air quality standards are exceeded'' (emphasis added). We
interpreted subsection 15.14.1 as extending the requirements of that
subsection (i.e., LAER, and in some cases, offsets) outside of the
designated nonattainment area (i.e., Las Vegas Valley) to Apex Valley
because Apex Valley had become an area in Clark County in which the air
quality standards are exceeded by virtue of the fact that PM-10 NAAQS
exceedances have been recorded in that area in recent years. (The
current designations under section 107(d) of the Act for the two
hydrographic areas (216 and 217) that comprise Apex
Valley are ``unclassifiable'' for the PM-10 NAAQS, see 40 CFR 81.329,
and EPA has not initiated the process to redesignate either one of the
areas to ``nonattainment.'')
Upon reconsideration, we now believe that our sole reliance on
subsection 15.14.1 was mistaken. We should have also considered
existing SIP subsection 15.13.1, and the definition of ``nonattainment
area'' in existing SIP section 1, and in so doing, we find that the
phrase ``in any other area in Clark County in which the air quality
standards are exceeded'' in subsection 15.14.1 is correctly interpreted
to refer to an area that has been established as a ``nonattainment
area'' by the Governor of Nevada and not just any area in which a
monitor has recorded exceedances of the standard.
Existing SIP subsection 15.13 requires BACT level of control but
does not require offsets. In pertinent part, existing SIP subsection
15.13.1 specifies that subsection 15.13 ``applies to all new,
reconstructed, or modified sources of * * * particulate * * * in the
attainment areas of Clark County'' (emphasis added). Existing SIP
section 1 (``Definitions'') does not define the term ``attainment
area'' but does so by negative implication by defining the term, ``non-
attainment area,'' to be ``an area which has been determined to exceed
any national ambient air quality limit for any pollutant for which
there is a standard. The Non-attainment Area for Clark County, Nevada
has been established by the Governor of the State of Nevada and such
area coincides with the boundaries of the Hydrographic Area 212 (Las
Vegas Valley) as reported in the document ``Water Resources--
Information Series--Report 6'' issued by the Nevada State Engineer's
Office in September, 1968. By negative implication, an ``attainment
area'' then is an area that has not been determined to exceed a given
NAAQS through a process involving the Governor. As such, subsection
15.13, rather than subsection 15.14, applies to new or modified PM-10
sources in Apex Valley under the existing SIP NSR program because it is
comprised by two areas that remain designated as ``unclassifiable'' for
the PM-10 NAAQS (in this context, ``unclassifiable'' and ``attainment''
represent designations with equivalent regulatory requirements), and
although exceedances of the PM-10 NAAQS have been measured there, Apex
Valley has not been ``determined to exceed'' through any process
involving the State of Nevada or, more specifically, the Governor and
thus does not represent an ``area in Clark County in which the air
quality standards are exceeded'' for the purposes of subsection 15.14.
This revised interpretation is supported by the recognition of some
of the enforceability problems that flow from our previous
interpretation. These problems include lack of fair notice to regulated
sources as to when the requirements under subsection 15.14 (i.e., LAER
and, in some cases, offsets) are triggered for new sources and
modifications (e.g., it could be upon one exceedance, or sufficient
exceedances to constitute a violation of the NAAQS, or some other
triggering event), when the requirements no longer apply (e.g., after a
year of clean data or some other indication that the area no longer is
exceeding the standard), and what area is affected (e.g., the immediate
area surrounding the monitoring station, the section 107(d) area
(codified in 40 CFR part 81, subpart C) in which the monitor is
located, or the entire valley in which the monitor is located, which in
this case involves two section 107(d) areas, or some other geographic
area). Any process under which the Governor makes a determination that
a NAAQS is exceeded in a given area would invariably identify an
effective date, identify criteria for ``attaining'' the standard once
again, and delineate boundaries for the affected area, and thereby
avoid the enforceability problems associated with our previous
interpretation.
With the revised interpretation of the requirements for new or
modified PM-10 sources in Apex Valley under the
[[Page 54017]]
existing SIP NSR program, we now find that there would be no relaxation
in either the control technology requirement (BACT applies under both
the existing SIP and submitted NSR programs) or offset requirement
(none under either program) and thus approval of the submitted NSR
program would not interfere with attainment of the PM-10 NAAQS in Apex
Valley. Since our revised rationale for approving the submitted NSR
program under section 110(l) as it relates to PM-10 in Apex Valley
rests fundamentally on an interpretation of existing regulatory
requirements, we are not required to conduct supplemental notice and
comment due to the exemption for interpretive rules under section
553(b) of the Administrative Procedure Act.
If, and when, EPA redesignates Apex Valley, or some portion
thereof, to nonattainment for PM-10 under section 107(d) of the Act,
then the Clark County portion of the Nevada SIP will need to be revised
to provide for, among other things, implementation of reasonably
available control measures (RACM) to reduce emissions from existing PM-
10 sources. In addition, the Clark County NSR program will need to be
revised to require LAER and offsets for new major sources and major
modifications proposing to locate in the area so designated.
NEC Comment #8: We object to EPA's failure to implement a Federal
Implementation Plan (FIP) under section 110(c)(1).
Response to NEC Comment #8: We acknowledge that our deadlines for
promulgating CO and PM-10 ``serious area'' FIPs under section
110(c)(1)(A) of the Act have passed, but our authority to promulgate
them under that section has also now expired, with the exception of CO
contingency provisions, due to our recent final actions approving the
CO and PM-10 plans for Las Vegas Valley. Our decision not to take final
action on the CO contingency provisions has no effect on our final
action today on the submitted NSR program.
III. EPA Action
As authorized under section 110(k)(3) of the Act, EPA is partially
approving and partially disapproving the revised Clark County NSR
program. Our final action is a partial approval because we are
approving submitted CCAQR sections 0, 11, 12 (except subsections
12.2.18 and 12.2.20), 58, and 59 (except subsection 59.2, which was
withdrawn) and submitted State regulation NAC 445B.22083, based on our
determination that these rules comply with relevant CAA requirements
for permitting of new or modified stationary sources in Clark County
and that supercession of related existing SIP provisions (i.e., parts
of section 1 and all of sections 11 and 15) is consistent with section
110(l) and 193 of the CAA. That is, we have determined that
supercession of the existing SIP Clark County NSR program with the
submitted NSR program will not interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable requirement of the Act, consistent with section
110(l) as interpreted by the Ninth Circuit in Hall v. EPA, and will
provide for equivalent or greater emission reductions of nonattainment
pollutants as called for in CAA section 193. This action incorporates
the rules, or portions of rules, that we are approving into the Nevada
SIP. Furthermore, our approval of the submitted NSR program provides us
with the basis to withdraw EPA's nonattainment area visibility FIP
authority as it relates to new source review by DAQEM in Clark County
(see 40 CFR 52.1488(b)).
This final approval of section 0 (``Definitions''), as submitted on
October 23, 2003, in its entirety results in the supercession of all of
the definitions in existing SIP section 1 (``Definitions'') except for
the following 33 terms: Affected Facility (1.1), Air Contaminant (1.3),
Air Pollution Control Committee (1.6), Area Source (1.11), Atmosphere
(1.12), Board (1.16), Commercial Off-Road Vehicle Racing (1.23), Dust
(1.26), Existing Facility (1.28), Existing Gasoline Station (1.29),
Fixed Capital Cost (1.30), Fumes (1.36), Health District (1.40),
Hearing Board (1.41), Integrated Sampling (1.44), Minor Source (1.50),
Mist (1.51), New Gasoline Station (1.57), New Source (1.58), NIC
(1.60), Point Source (1.70), Shutdown (1.78), Significant (unnumbered),
Single Source (1.81), Smoke (1.83), Source of Air Contaminant (1.84),
Special Mobile Equipment (1.85), Standard Commercial Equipment (1.87),
Standard Conditions (1.88), Start Up (1.89), Stop Order (1.91),
Uncombined Water (1.95), and Vapor Disposal System (1.97). Also, this
final approval of section 0 results in the supercession of all 29 of
the section 0 definitions that were submitted to EPA on July 23, 2001
as part of the Las Vegas PM-10 attainment plan and approved by EPA on
June 9, 2004 (see 69 FR 32273, at 32277).\6\
---------------------------------------------------------------------------
\6\ In our TSD (dated April 23, 2004) for the proposed action on
the Clark County NSR rules, we compared the definitions in section
0, as adopted locally on December 4, 2001 and submitted to EPA on
February 25, 2003, with the corresponding definitions in a previous
version of section 0 that had been submitted as part of the Las
Vegas PM-10 attainment plan and concluded that there were no
substantive differences between the two sets of definitions. In this
final rule, we recognize that the February 25, 2003 submittal was
superceded by the October 23, 2003 submittal, but we have concluded
that there are no substantive differences between the set of
definitions in the October 23, 2003 submittal and the corresponding
set of definitions submitted as part of the Las Vegas PM-10
attainment plan.
---------------------------------------------------------------------------
Our action also constitutes a partial disapproval because we are
disapproving submitted CCAQR section 12, subsections 12.2.18 and
12.2.20, and submitted CCAQR section 52, subsection 52.8. We are
disapproving submitted CCAQR section 12, subsections 12.2.18 and
12.2.20, which relate to regulation of hazardous air pollutants, as
inappropriate for inclusion in the SIP.\7\ We are disapproving
submitted CCAQR subsection 52.8 because it cannot be evaluated properly
in the absence of a SIP submittal of the entire rule (i.e., CCAQR
section 52). These disapproved rules are not incorporated into the SIP.
No sanctions flow from this partial disapproval action under section
179 of the Act because the disapproved provisions do not constitute
required SIP submissions.
---------------------------------------------------------------------------
\7\ HAP regulations are not inappropriate for approval as part
of a SIP in every instance, see, e.g., 40 CFR part 51, Appendix S,
IV. C.6, but in this instance, CCAQR subsections 12.2.18 and 12.2.20
do not apply to sources subject to the criteria pollutant provisions
contained in other subsections of CCAQR section 12 and thus are
inappropriate because they would not contribute to attainment of a
NAAQS nor are they needed to satisfy the non-criteria pollutant
requirements of the Federal NSR regulations.
---------------------------------------------------------------------------
Second, in recognition of the vacature of our approval of previous
versions of the Clark County NSR rules in Hall v. EPA, we are deleting
40 CFR 52.1470(c)(36) and (37).
Third, under section 110(k)(6), we are correcting certain
provisions of the Clark County portion of the Nevada SIP that we
approved in error and are revising certain provisions of the Clark
County portion of the Nevada SIP that warrant clarification.
Specifically, we are deleting SIP section 1, subsections 1.79
(Significant source of total chlorides) and 1.94 (Total Chlorides); SIP
section 15 (Prohibition of Nuisance Conditions); SIP section 29 (Odors
in the Ambient Air); SIP section 40, subsection 40.1 (Prohibition of
Nuisance Conditions); SIP section 42, subsection 42.2 (untitled but
related to nuisance from open burning); and SIP section 43, subsection
43.1 (Odors in the Ambient Air), from the appropriate paragraphs of
section 1470 (``Identification of plan'') of 40 CFR part 52, subpart DD
(Nevada). This action deletes these rules from the federally
enforceable SIP. We are adding
[[Page 54018]]
paragraphs to 40 CFR 52.1483 (``Malfunction regulations'') to clarify
that former SIP section 12 (Upset, Breakdown, or Scheduled Maintenance)
and submitted section 25.1 (untitled, but related to upset, breakdown,
or scheduled maintenance) have been disapproved and are not part of the
applicable SIP.\8\ Lastly, we are revising the 40 CFR 52.1470(c)(33) to
clarify that SIP section 33 (Chlorine in Chemical Processes) was, and
continues to be, approved into the Nevada SIP as part of our approval
of the overall post-1982 ozone plan for Las Vegas Valley.
---------------------------------------------------------------------------
\8\ We had indicated in our June 2, 2004 proposed rule that we
would clarify the disapproval status of these rules by revising the
appropriate paragraphs in 40 CFR 52.1470, but we are instead adding
text to 40 CFR 52.1483, which is a specific section of 40 CFR part
52, subpart DD (Nevada) that lists regulations that address upset
conditions and that have been submitted to EPA as revisions to the
Nevada SIP but that have been specifically disapproved by EPA.
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves 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 rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves 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. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 8, 2004. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compound.
Dated: August 25, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart DD--Nevada
0
2. Section 52.1470 is amended as follows:
0
a. Adding paragraphs (c)(5)(i), (c)(16)(viii)(C), (c)(17)(ii)(A),
(c)(53), and (c)(54);
0
b. Revising paragraph (c)(33)(i)(A); and
0
c. Removing and reserving paragraphs (c)(36) and (c)(37).
Sec. 52.1470 Identification of plan.
* * * * *
(c) * * *
(5) * * *
(i) Previously approved on May 14, 1973 in paragraph (c)(5) of this
section and now deleted without replacement: Section 15 (Prohibition of
Nuisance Conditions) and Section 29 (Odors in the Ambient Air).
* * * * *
(16) * * *
(viii) * * *
(C) Previously approved on August 27, 1981 in paragraph
(c)(16)(viii) of this section and now deleted without replacement:
Section 40, Rule 40.1 (Prohibition of Nuisance Conditions); Section 42,
Rule 42.2 (open burning); and Section 43, Rule 43.1 (Odors in the
Ambient Air).
(17) * * *
(ii) * * *
(A) Previously approved on August 27, 1981 in paragraph (c)(17)(ii)
of this
[[Page 54019]]
section and now deleted without replacement: Section 1, Rules 1.79,
1.94.
* * * * *
(33) * * *
(i) * * *
(A) Las Vegas Valley Air Quality Implementation Plan, Post 1982
Update for Ozone adopted on October 16, 1984 (including section 33
(Chlorine in Chemical Processes)), adopted May 18, 1984).
* * * * *
(53) The following plan revision was submitted on October 23, 2003,
by the Governor's designee.
(i) Incorporation by reference.
(A) Clark County Department of Air Quality and Environmental
Management.
(1) New or amended rules adopted on October 7, 2003 by the Clark
County Board of County Commissioners: Clark County Air Quality
Regulations section 0 (Definitions), section 11 (Ambient Air Quality
Standards), section 12 (Preconstruction Review for New or Modified
Stationary Sources), excluding subsection 12.2.18 and 12.2.20, section
58 (Emission Reduction Credits), and section 59 (Emission Offsets),
excluding subsection 59.2 (``Local Offset Requirements'').
(54) The following plan revision was submitted on November 20, 2003
by the Governor's designee.
(i) Incorporation by reference.
(A) Nevada Division of Environmental Protection.
(1) Nevada Administrative Code section 445B.22083, adopted March 3,
1994 (effective March 29, 1994), by the State Environmental Commission.
0
3. Section 52.1483 is amended as follows:
0
a. Redesignating paragraph (a)(1)(i) as paragraph (a)(1)(iii);
0
b. Adding new paragraphs (a)(1)(i) and (a)(1)(ii); and
0
c. Revising newly designated paragraph (a)(1)(iii).
Sec. 52.1483 Malfunction regulations.
(a) * * *
(1) * * *
(i) Previously approved on May 14, 1973 and deleted without
replacement on August 27, 1981: Section 12 (Upset, Breakdown, or
Scheduled Maintenance).
(ii) Section 25, Rule 25.1, submitted by the Governor on July 24,
1979.
(iii) Section 25, Rules 25.1-25.1.4, submitted by the Governor on
November 17, 1981.
0
4. Section 52.1488 is amended by revising paragraph (b) to read as
follows:
Sec. 52.1488 Visibility protection.
* * * * *
(b) Regulation for visibility monitoring and new source review. The
provisions of Sec. 52.26 are hereby incorporated and made a part of
the applicable plan for the State of Nevada. The provisions of Sec.
52.28 are hereby incorporated and made a part of the applicable plan
for the State of Nevada except for that portion applicable to the Clark
County Department of Air Quality and Environmental Management.
* * * * *
[FR Doc. 04-20137 Filed 9-3-04; 8:45 am]
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