Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 68769

requirements, Sulfur oxides, Volatile 

organic compounds.

Dated: November 1, 2002. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4.

Chapter I, title 40, Code of Federal 

Regulations, is amended as follows:

PART 52—[AMENDED] 

1. The authority citation for part 52 

continues to read as follows:

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

Subpart PP—South Carolina 

2. In § 52.2120 the table in paragraph 

(c) is amended by adding a new entry 

under Regulation No. 62.1 after Section 

III for ‘‘Section V Credible Evidence’’

and removing the entry for ‘‘Standard 

No. 3 Emissions from Incinerators’’ to 

read as follows:

§ 52.2120 Identification of plan.

* * * * *

(c) * * *

AIR POLLUTION CONTROL REGULATIONS FOR SOUTH CAROLINA

State citation Title/subject State effective 

date 

EPA approval 

date 

Federal register notice 

Regulation No. 62.1 ............ Definitions, Permits Requirements and Emissions Inventory 

* * * * * * * 

Section V ............................ Credible Evidence ........................................................... 07/27/01 01/13/03 67 FR 68767

* * * * * * * 

* * * * *

[FR Doc. 02–28698 Filed 11–12–02; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[FRL–7408–2] 

Designation of Areas for Air Quality 

Planning Purposes; Redesignation of 

Particulate Matter Unclassifiable 

Areas; Redesignation of Hydrographic 

Area 61 for Particulate Matter, Sulfur 

Dioxide, and Nitrogen Dioxide; State of 

Nevada

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: In this document, EPA is 

approving a request from the State of 

Nevada, pursuant to section 107(d) of 

the Clean Air Act (Act), to redesignate 

the current single unclassifiable area for 

particulate matter with an aerodynamic 

diameter less than or equal to 10 

micrometers (PM–10) into numerous 

individual areas to be consistent with 

the area definitions for other pollutants. 

EPA is also approving a State-requested 

subdivision of one of those individual 

areas, referred to as hydrographic area 

61 (Boulder Flat), into two areas. EPA’s 

approval of these requests establishes 

hydrographic areas as the section 107(d) 

unclassifiable areas for PM–10 and 

replaces hydrographic area 61 with two 

new section 107(d) areas for PM–10, 

sulfur dioxide (SO2), and nitrogen 

dioxide (NO2): upper area 61 and lower 

area 61. In this action, EPA is also 

deleting certain total suspended 

particulate (TSP) area designations that 

are no longer necessary. EPA proposed 

these actions in the Federal Register on 

April 30, 2002 (67 FR 21194). EPA 

received comments from several 

commenters on our proposed actions. 

After carefully reviewing and 

considering the issues raised by the 

commenters, EPA is finalizing our 

actions as proposed.

EFFECTIVE DATE: This action will become 

effective on December 13, 2002.

ADDRESSES: Copies of the State’s 

submittal, and other supporting 

documentation relevant to this action, 

are available for inspection during 

normal business hours at Air Division, 

EPA Region 9, 75 Hawthorne Street, San 

Francisco, California, 94105.

FOR FURTHER INFORMATION CONTACT:

Gerardo Rios, EPA Region 9, Air 

Division, Permits Office (AIR–3), at 

(415) 972–3974 or rios.gerardo@epa.gov.

SUPPLEMENTARY INFORMATION:

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

and ‘‘our’’ refer to EPA.

Table of Contents. 

I. Background. 

II. Comments received by EPA on our 

proposed rulemaking and EPA’s 

responses. 

III. EPA’s final action. 

IV. Administrative requirements.

I. Background 

Pursuant to the redesignation 

procedures of section 107(d)(3) of the 

Clean Air Act (Act), States may request 

EPA’s approval of air quality planning 

area redesignations, including boundary 

changes to existing areas. The State of 

Nevada submitted two such section 

107(d) redesignation requests to EPA. 

One request (dated April 16, 2002) was 

for EPA to redesignate the existing PM–

10 section 107 unclassifiable area by 

establishing hydrographic areas within 

the State as the PM–10 unclassifiable 

areas. The State’s other request (dated 

November 6, 2001) was to split an 

existing PSD baseline area, 

hydrographic area 61, into two parts: 

upper area 61 and lower area 61. 

On April 30, 2002, EPA proposed to 

approve the requests made by the State 

of Nevada, pursuant to section 107(d) of 

the Act. See 67 FR 21194. Today’s rule 

finalizes our approval of these two 

requests from the State of Nevada. EPA’s 

approval of these requests establishes 

hydrographic areas as the section 107(d) 

unclassifiable areas for PM–10 and 

replaces hydrographic area 61 with two 

new section 107(d) areas for PM–10, 

sulfur dioxide (SO2), and nitrogen 

dioxide (NO2): upper area 61 and lower 

area 61. In this action, EPA is also 

deleting certain total suspended 

particulate (TSP) section 107(d) area 

designations because they are no longer 

necessary.

II. Comments Received by EPA on Our 

Proposed Rulemaking and EPA’s 

Responses. 

EPA received seven sets of comments 

on our proposal to approve the State of 

Nevada’s 107(d) redesignation requests. 

Provided below is a summary of the 

significant comments, and EPA’s 

responses thereto. Complete copies of 

the submitted comments are available 

for inspection during normal business 

hours at Air Division, EPA Region 9, 75 

Hawthorne Street, San Francisco, 

California 94105. 

Comment 1: One commenter claims 

that EPA’s rule will result in significant 

68770 Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 

1 In 1993, EPA revised its PSD regulations to 

address the transition from TSP to PM–10. Among 

other changes in our 1993 rule related to PSD, EPA 

retained the existing TSP baseline areas (i.e., the 

hydrographic areas in the State of Nevada) as part 

of the program for implementing the newlypromulgated PM–10 increments. See 58 FR 31622; 

June 3, 1993.

deterioration of air quality in designated 

attainment/unclassifiable areas for PM–

10 in violation of the PSD program 

requirements. The commenter alleges 

that PSD increments will be violated by 

EPA’s proposed action. Their allegation 

is based on a belief that the State is a 

single, triggered, PSD baseline area for 

PM–10 and that EPA’s action would 

untrigger most of the State. 

Response: EPA is promulgating this 

rule because we do not believe that the 

rule will result in significant 

deterioration of air quality nor that PSD 

increments will be violated. As such, we 

disagree with the commenter’s claims. 

The comment, which relates to EPA’s 

proposal to approve the State’s request 

to redesignate the existing PM–10 

section 107 unclassifiable area by 

establishing hydrographic areas within 

the State as the PM–10 unclassifiable 

areas, is based on the incorrect belief of 

the commenter that prior to EPA’s 

present action, the State consisted of a 

single PSD baseline area for PM–10. 

Prior to EPA’s action, as the Agency 

clarified in our March 19, 2002 final 

rule (see 67 FR 12474), the State’s 253 

hydrographic areas had already been 

established as the PSD baseline areas for 

particulate matter (originally for the 

indicator pollutant TSP, then for PM–

10, even though there was a single PM–

10 section 107 unclassifiable area). 

Today’s rule aligns the section 107 area 

definitions for PM–10 with the 

established hydrographic area approach 

the State has used for almost twenty 

years in implementing the PSD program 

for particulate matter. Today’s rule has 

no effect on PSD baseline areas for PM–

10 in the State, other than in 

hydrographic area 61, where the rule 

proposes to split a single area into two. 

Comment 2: One commenter notes 

that the PM–10 redesignation request 

and the request to subdivide 

hydrographic area 61 were submitted by 

Allen Biaggi, Administrator of the 

Nevada Division of Environmental 

Protection, rather than from the 

Governor of Nevada. The commenter 

concludes that since EPA’s regulations 

require that the submittals be made by 

the Governor, the requests are unlawful 

and cannot be acted upon by EPA. 

Response: The commenter is correct 

that the redesignation requests were 

submitted by Allen Biaggi, 

Administrator of the Nevada Division of 

Environmental Protection (‘‘NDEP’’), 

rather than by the Governor of Nevada. 

NDEP is one of the divisions within the 

State Department of Conservation and 

Natural Resources (‘‘Department’’). 

Nevada law authorizes the Department 

to take all action necessary or 

appropriate to secure to Nevada the 

benefits of the Federal Clean Air Act. 

See Title 40 of the Nevada Revised 

Statutes, Chapter 445B, sections 

445B.125, 445B.205, and 445B.135. The 

Department is a State administrative 

Agency overseen by the Governor. 

Therefore, EPA can reasonably assume 

that the redesignation request has been 

made with the full knowledge and 

endorsement of the Governor of Nevada. 

Thus, Allen Biaggi acted lawfully in 

submitting the State’s redesignation 

requests to EPA on behalf of the 

Governor of Nevada. 

Comment 3: One commenter argues 

that neither Nevada nor EPA provide 

the required documentation that the 253 

unclassifiable areas would not intersect 

the area of impact of any major 

stationary source or modification that 

has established the minor source 

baseline date. 

EPA Response: EPA’s definition of 

‘‘baseline area’’ at 40 CFR 52.21(b)(15) 

notes that redesignated areas ‘‘cannot 

intersect or be smaller than the area of 

impact of any major stationary source or 

major modification which’’ establishes a 

minor source baseline date. Thus, if a 

State’s redesignation was establishing 

new or different baseline areas, then 

documentation would be needed to 

demonstrate that the newly created 

baseline areas meet the federal 

regulatory definition for such areas by 

not intersecting or being smaller than 

the area of impact of any major 

stationary source or major modification 

which established a minor source 

baseline date. However, Nevada’s 

request to create 253 PM–10 section 107 

unclassifiable areas does not establish 

new or different baseline areas for PM–

10. As EPA explained in our March 19, 

2002 final rule, the PM–10 PSD baseline 

areas in the State are the hydrographic 

areas and have been for many years.1

The State’s implementation of the 

federal PSD program has been based on 

the hydrographic area approach since 

EPA delegated the program in 1983. 

Thus, contrary to the commenter’s 

assertion, our action is not establishing 

a new or revised state-wide map of PSD 

baseline areas for PM–10, and it is not 

necessary for the State or EPA to 

provide the documentation requested by 

the commenter. As an example, Sierra 

Pacific Power’s submittal of a complete 

PSD permit application on March 11, 

1994 for Tracy Generating Station 

established the PM–10 minor source 

baseline date in hydrographic area 83. 

EPA’s action today has no effect on the 

status of this basin, i.e., the basin 

remains triggered with the same minor 

source baseline date.

Comment 4: One commenter alleges 

that EPA’s action would untrigger the 

minor source baseline date for PM–10 in 

the proposed lower basin 61 (which 

should have been triggered by Barrick 

gold mine), and in many key areas of the 

State, such as Jarbidge Wilderness, the 

State’s only mandatory Class I area, and 

on many Indian reservations and 

colonies. The commenter also states that 

EPA failed to conduct the required 

consultation with the Tribes who would 

be affected because minor source 

baseline dates on tribal reservations will 

be eliminated. 

EPA Response: In accordance with 

EPA’s PSD program regulations at 40 

CFR 52.21, the PSD minor source 

baseline date in a given baseline area is 

established by submittal of the first 

complete PSD permit application in that 

area. Once the minor source baseline 

date has been established in an area, all 

sources consume increment in that area. 

However, in some cases, a larger area 

where the minor source baseline date 

has been established (or ‘‘triggered’’) can 

be broken up into two or more smaller 

areas and such action could potentially 

result in the elimination of the minor 

source baseline date in one or more of 

the smaller areas (‘‘untrigger’’ the areas) 

which subsequently do not contain the 

PSD source. 

EPA disagrees that today’s rule would 

untrigger the minor source baseline date 

for PM–10 (or any other pollutant) in 

lower basin 61, the Class I-designated 

Jarbidge Wilderness, or on any Indian 

reservations or colonies in the State. 

EPA’s action will not untrigger any 

minor source baseline dates in the State 

of Nevada. As with Comment 1, this 

comment is based on the incorrect belief 

of the commenter that prior to EPA’s 

present action, the State consisted of a 

single PSD baseline area for PM–10 and 

that the effect of our action would be to 

create new baseline areas for PM–10, 

thereby untriggering numerous areas of 

the State where the minor source 

baseline date has already been 

established. As previously explained, 

EPA’s current rule has no effect at all on 

PSD baseline areas for PM–10 in the 

State, other than in hydrographic area 

61. In hydrographic area 61, our action 

will split a single PSD baseline area into 

two PSD baseline areas. However, the 

minor source baseline date has not been 

established in hydrographic area 61, so 

our action does not untrigger any 

established minor source baseline date. 

Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 68771

2While it is accurate that only major sources are 

subject to PSD permitting requirements, a source is 

not required to obtain a PSD permit merely because 

it is a major source. PSD permits are only required 

for construction of new major sources and for 

existing major sources making a modification that 

increases emissions above designated 

‘‘significance’’ thresholds. See 40 CFR 52.21(i).

EPA disagrees with the commenter’s 

claim that Barrick gold mine has 

triggered the minor source baseline date 

in hydrographic area 61. Although 

Barrick gold mine is a ‘‘major source’’

located in hydrographic area 61, it has 

not been subject to PSD permitting 

requirements.2 As previously noted, the 

minor source baseline date in a given 

baseline area is established by submittal 

of the first PSD permit application in 

that area. Neither Barrick gold mine nor 

any other source in hydrographic area 

61 has submitted a PSD permit 

application, so the minor source 

baseline date has not been established 

in that area.

Finally, EPA disagrees that the 

Agency was required to consult with 

Indian tribes regarding the effect of this 

rulemaking. EPA concluded that the 

rule will not have a substantial direct 

effect on one or more Indian tribes, in 

part because the rule will not untrigger 

the minor source baseline date within 

any tribal boundary, thus we did not 

initiate a formal consultation process. 

Comment 5: One commenter claims 

that EPA did not consider the impact of 

the proposed PM–10 redesignation on 

the State’s ability to attain and maintain 

the new PM–2.5 NAAQS. The 

commenter states that such 

consideration is required in light of 

EPA’s December 1997 guidance on 

implementation of the new standards, 

because the proposed action would 

relax the State’s PSD program and allow 

increased degradation of air quality. 

EPA Response: EPA did not consider 

the impact of the proposed PM–10 

redesignation on the State’s ability to 

attain and maintain the new PM–2.5 

NAAQS because the rule will not have 

any effect on the State’s implementation 

of the new standard. Our action does 

not relax the State’s PSD program and 

we do not believe it will result in 

significant degradation of air quality in 

the State. Other than in hydrographic 

area 61, EPA’s action will have no effect 

on the State’s implementation of the 

PSD program. In hydrographic area 61, 

the only effect will be that a single 

untriggered PM–10 PSD baseline area 

will become two separate unclassifiable/

attainment areas (constituting two 

untriggered PSD baseline areas for PM–

10). Subdividing one untriggered PSD 

baseline area into two untriggered PSD 

baseline areas conforms with EPA’s 

existing regulatory criteria for such 

actions and is consistent with relevant 

statutory requirements under the Clean 

Air Act. 

Comment 6: One commenter argues 

that EPA cannot rely upon the March 

19, 2002 final rule as the sole basis for 

approving the State’s PM–10 

redesignation request because EPA 

never approved the use of hydrographic 

areas for PM–10. The commenter also 

argues that the claim that Nevada has 

relied upon the hydrographic area 

approach for managing particulate 

emissions in Nevada is unsupported by 

fact. 

EPA Response: EPA is not relying 

upon the March 19, 2002 final rule as 

the basis for approving Nevada’s PM–10 

redesignation request. While EPA does 

substantially base its proposed approval 

of the State’s PM–10 redesignation 

request on the existing hydrographic 

area approach used by the State to 

manage particulate matter emissions, 

this approach was not effectuated by 

EPA’s March 19, 2002 rule. EPA’s 

March 2002 rule, rather than 

establishing hydrographic areas as the 

PSD baseline areas for particulate 

matter, merely clarified that several 

previous Agency rulemakings had 

already established hydrographic areas 

as the PSD areas. Moreover, despite the 

commenter’s claim to the contrary, 

Nevada has an almost 20-year history of 

using hydrographic areas as the 

geographic basis for PSD program 

implementation. All of the PSD permits 

issued by the State (and the increment 

analyses conducted in support of these 

permits) have relied upon the 

hydrographic area approach for 

determining whether sources were 

locating in areas where the minor source 

baseline date had already been 

established or whether the new source 

was initially triggering the area. Some 

examples of permit-related documents 

which demonstrate the State’s reliance 

on the hydrographic area scheme have 

been added to the administrative record 

for this rulemaking.

Lastly, since publication of the March 

19, 2002 rule discussed above, EPA has 

discovered two additional documents 

which lend further support to the action 

EPA took: (1) EPA’s final rule 

reaffirming the area boundaries 

established in our original March 3, 

1978 designation of nonattainment, 

attainment, and unclassifiable areas in 

Nevada under section 107(d) of the 1977 

CAA Amendments; and (2) a letter from 

Allyn Davis, Director, Air & Hazardous 

Materials Division, EPA—Region 9, to 

Dick Serdoz, Air Quality Officer, 

Nevada Department of Conservation and 

Natural Resources, dated May 8, 1979, 

concerning the EPA final rule affirming 

the area designations. See 43 FR 8962 

(March 3, 1978) for the original area 

designations and see 44 FR 16388, at 

16391 (March 19, 1979) for the rule reaffirming the boundaries for areas in 

Nevada. These documents have also 

been added to the administrative record 

for this rulemaking. 

Comment 7: One commenter argues 

that since the March 19, 2002 rule is 

being challenged in the 9th Circuit 

Court of Appeals, EPA should not rely 

on the rule as the basis for approving 

Nevada’s PM–10 redesignation request. 

Instead, EPA must assume that the 

terms ‘‘rest of state’’ and ‘‘entire state’’

constitute single attainment/

unclassifiable areas for which the minor 

source baseline date has been triggered 

until such time as the issue is resolved 

by the Court. 

Response: On May 17, 2002, RenoSparks Indian Colony and Great Basin 

Mine Watch (‘‘petitioners’’) filed a 

petition for review in the U.S. Court of 

Appeals for the Ninth Circuit (Docket # 

02–71503) challenging those portions of 

EPA’s final rule (parts I and II) clarifying 

the tables in 40 CFR 81.329 that identify 

the attainment and unclassifiable areas 

within the State of Nevada for TSP, SO2, 

and NO2 and clarifying the PSD baseline 

areas for PM–10. The petitioners reject 

EPA’s characterization of the action 

taken on March 19, 2002 as a 

clarification of the existing regulatory 

framework and contend that EPA’s 

action represents an unlawful 

redesignation of a single area referred to 

as ‘‘rest of state’’ into numerous 

subareas under section 107(d) of the 

Clean Air Act. The petition for review 

notwithstanding, the Agency continues 

to believe that its decision to clarify the 

meaning of the term ‘‘rest of state’’ in 40 

CFR 81.329 as Nevada’s hydrographic 

areas is amply supported by the record 

and that the decision to publish the 

March 19th rule as a technical 

correction (i.e., without notice and 

comment) is consistent with the 

Administrative Procedure Act. 

EPA does not agree that the Agency 

must interpret the terms ‘‘rest of state’’

and ‘‘entire state’’ as constituting single 

attainment/unclassifiable areas for 

which the minor source baseline date 

has been triggered until such time as the 

issue is resolved by the Ninth Circuit 

Court of Appeals. As we have 

previously explained, and as clarified in 

the March 19, 2002 rulemaking, the 

effect of EPA’s prior regulatory actions 

(finalized long ago) was to establish 

hydrographic areas as the PSD baseline 

areas in the State of Nevada. The current 

legal challenge to EPA’s March 19, 2002 

rule has no effect on the status of the 

68772 Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 

3The PSD program delegation does not apply in 

Clark County, Nevada. Clark County administers an 

EPA-approved PSD program (rather than 

administering a delegated federal PSD program) for 

PSD sources in Clark County. Therefore, as noted 

in our proposal, EPA is not deleting the TSP 

attainment and unclassifiable area designations in 

Clark County at this time.

rule, nor, more importantly, on the 

already established use of hydrographic 

areas as air quality planning areas for 

purposes of implementing the PSD 

permitting program in Nevada. EPA will 

continue to interpret the terms ‘‘rest of 

state’’ and ‘‘entire state’’ as referring to 

the hydrographic areas in the State that 

are not designated as nonattainment. If 

this issue is ultimately resolved by the 

Courts in a manner that is inconsistent 

with EPA’s current approach, then we 

will take all necessary steps at that time 

to remedy the situation, including, if 

necessary, reassessing the 

appropriateness of this rulemaking. 

Comment 8: One commenter claims 

that because Nevada does not have an 

approved State Implementation Plan 

(SIP) that meets the requirements of 

CAA sections 160 through 165, then in 

order for EPA to redesignate Nevada’s 

PM–10 unclassifiable area into 

hydrographic areas, and to redesignate 

hydrographic area 61, the Agency must 

revise Nevada’s Federal Implementation 

Plan (FIP). 

Response: Neither EPA’s action to 

redesignate Nevada’s PM–10 

unclassifiable area into hydrographic 

areas nor EPA’s action to subdivide 

hydrographic area 61 from a single 

unclassifiable area into two 

unclassifiable areas represents, nor 

requires, a revision to Nevada’s SIP or 

FIP. Rather these are EPA actions to 

promulgate the boundaries of 

designated attainment/unclassifiable 

areas in the State of Nevada. 

As noted by the commenter, and 

reflected at 40 CFR 52.1485(a), Nevada 

does not have an approved State 

Implementation Plan (SIP) that meets 

the requirements of CAA sections 160 

through 165. However, as further 

clarified at 40 CFR 52.1485(b), ‘‘the 

provisions of § 52.21(b) through (w) are 

incorporated and made a part of the 

applicable State plan for the State of 

Nevada except for that portion 

applicable to the Clark County Health 

District.’’ See 45 FR 52676, at 52741 

(August 7, 1980) and 47 FR 26620 (June 

21, 1982). (Sections 52.21(b) through (w) 

in part 52 of title 40 of the Code of 

Federal Regulations consist of the 

Federal PSD regulations.) Thus, the 

Federal PSD regulations, codified at 40 

CFR 52.21, represent EPA’s FIP for 

Nevada (for purposes of implementing 

the PSD program). 

However, while the part 52 Federal 

PSD regulations refer to section 107 

attainment and unclassifiable areas, 

they do not incorporate the section 107 

area designations by reference. Thus, 

the regulatory changes effected by 

today’s rule are located at 40 CFR 

81.329, which describes the ‘‘Section 

107 Attainment Status Designations’’ for 

Nevada; no changes are being made to 

40 CFR 52.21 or to 40 CFR part 52, 

subpart DD—Nevada (Nevada’s SIP). 

Since EPA is making no changes to 

these regulatory sections, today’s action 

does not require a revision to the 

Nevada SIP or FIP. 

Comment 9: One commenter asserts 

that EPA’s action to delete certain TSP 

attainment and unclassifiable areas from 

40 CFR 81.329 is unlawful because the 

Agency’s regulations state that ‘‘[a]ny 

baseline area established originally for 

the TSP increments shall remain in 

effect and shall apply for purposes of 

determining the amount of available 

PM–10 increments. * * *’’ The 

commenter also questions why EPA is 

taking action to delete TSP area 

designations given that the State of 

Nevada did not make a formal request 

for such action.

Response: The Agency is not acting 

unlawfully in deleting the listing of 

certain TSP attainment and 

unclassifiable area designations from 40 

CFR 81.329. Deletion of the listing of 

certain TSP attainment and 

unclassifiable areas does not eliminate 

any baseline area established originally 

for the TSP increments. Rather, the 

baseline areas originally established for 

the TSP increments (i.e., the 

hydrographic areas) ‘‘remain in effect 

and * * * apply for purposes of 

determining the amount of available 

PM–10 increments.* * *’’ (40 CFR 

52.21(b)(15)(iii)) As we explained in the 

proposed rule:

In our 1993 PSD rule, we indicated that the 

replacement of the TSP increments with 

PM10 increments (which operate 

independently from the section 107 area 

designations for TSP) negates the need for the 

TSP attainment or unclassifiable area 

designations to be retained. We also 

indicated that we would delete such TSP 

designations in 40 CFR part 81 upon the 

occurrence of one of the following events: 

EPA’s approval of a State’s revised PSD 

program containing the PM10 increments; 

EPA’s promulgation of the PM10 increments 

into a State’s SIP where the State chooses not 

to adopt the increments on their own; or 

EPA’s approval of a State’s request for 

delegation of PSD responsibility under 40 

CFR 52.21(u). See 58 FR 31622, 31635 (June 

3, 1993). [Emphases added]

Thus, the listing of designated TSP 

attainment and unclassifiable areas in 

Nevada became unnecessary upon the 

effective date of the Agency’s 1993 rule 

in areas where EPA had delegated the 

PSD program (i.e., the entire State of 

Nevada except for Clark County.3

Finally, although the commenter is 

correct that the State of Nevada did not 

make a formal request to EPA to 

eliminate their unnecessary TSP area 

designations, such a request was not 

needed for EPA to act. EPA had already 

noted, in our 1993 rulemaking, that the 

Agency’s intention was to delete the 

TSP area designations in 40 CFR part 81 

once they were no longer necessary. 

Moreover, section 107 of the Act 

authorizes EPA to eliminate a section 

107 designation for particulate matter 

(measured as TSP), when ‘‘the 

Administrator determines that such 

designation is no longer necessary.’’ See

CAA section 107(d)(4)(B). In today’s 

action, the Agency is merely following 

through on a prior commitment to 

eliminate TSP designations based on a 

determination that they are no longer 

necessary. EPA’s action in this regard is 

consistent with prior rulemakings by 

EPA to delete TSP area designations in 

other States. See, e.g., 59 FR 28480 (June 

2, 1994) (EPA action to delete TSP area 

designations in response to a State’s 

request to redesignate TSP 

nonattainment areas to attainment). 

Comment 10: Two commenters 

question whether the Agency’s 

redesignation of hydrographic area 61 is 

in the public’s interest because, they 

contend, the action merely splits an area 

into two pieces so that the air pollution 

in the region can be doubled and EPA’s 

PSD requirements can be avoided. They 

further assert that continued 

subdivision of hydrographic areas to 

allow sources to avoid the PSD program 

will pollute the entire State. 

Response: EPA does not agree that the 

effect of splitting hydrographic area 61 

into upper and lower basins will be to 

allow air pollution in the region to be 

doubled. Area 61 is currently designated 

attainment or unclassifiable for all 

criteria pollutants and the minor source 

baseline date has not been triggered for 

any pollutant. Thus, the ‘‘allowable’’

amount of air pollution, and consequent 

level of air quality degradation, is 

presently constrained only by the 

NAAQS. After area 61 is split into upper 

and lower basins, the ‘‘allowable’’

amount of air pollution and level of air 

quality degradation in each of the two 

basins will also be constrained only by 

the NAAQS (i.e., the overall level of air 

quality protection will be exactly the 

same) unless and until a PSD permit 

application triggers one or both areas. 

The commenter does not provide any 

justification for their contention that the 

Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 68773

effect of EPA’s action in area 61 will be 

a doubling of the allowable air pollution 

in the region. However, it is true that if 

one area is triggered before the other, 

then there could be additional minor 

growth in the baseline of the untriggered 

area relative to the newly triggered area, 

because the triggered area would then 

be constrained by the PSD increments. 

In addition, the commenter’s concern 

that EPA’s approval of the subdivision 

of area 61 portends a larger state-wide 

effort to split hydrographic areas is 

unwarranted. The Agency has not 

received any other request for such 

action by Nevada. Moreover, EPA’s 

actions on requests for area 

redesignations under section 107(d) that 

affect PSD baseline areas are handled on 

a case-by-case basis in light of relevant 

statutory and regulatory requirements. 

The Agency’s approval of the State’s 

request to subdivide hydrographic area 

61 does not assure EPA approval of any 

potential future requests the State might 

make to redesignate other existing 

section 107(d) attainment or 

unclassifiable areas, if the 

circumstances of the request, including 

any impact on the State’s ability to 

effectively manage air quality, warrants 

denial.

Comment 11: Two commenters 

question the rationale provided by EPA 

for splitting area 61. They claim that the 

upper and lower basins are not selfcontained, that the split will not 

promote the State’s ability to effectively 

manage their air quality, and that 

Nevada has only limited and supervised 

authority to manage EPA’s PSD 

program, so it is extremely unlikely that 

the redesignation would reduce the 

complexity of Nevada’s PSD program. 

They further allege that the objective of 

the hydrographic area 61 redesignation, 

based on articles in the Nevada Press, 

appears to be to ensure that a new 

source in lower basin 61 (i.e., a 

proposed power plant) will not trigger 

the PSD minor source baseline date in 

upper basin 61 where there are mining 

operations. Thus, they claim, EPA’s 

approval of the redesignation would 

help the mines circumvent PSD 

requirements and is inconsistent with 

the goals and intent of the PSD 

provisions of the Act. 

Response: As stated in our proposed 

rule, EPA is approving Nevada’s request 

to subdivide hydrographic area 61 into 

upper and lower basins because the 

request complies with the existing 

federal standards for approval of section 

107(d) redesignations and we do not 

believe the redesignation will interfere 

with the State’s ability to manage air 

quality. As we further explained in our 

proposal, EPA’s policy is to provide 

States with a fair degree of autonomy to 

balance air quality management with 

economic planning considerations. It is 

not necessary for EPA to make a finding 

that Nevada’s redesignation request will 

improve air quality management by the 

State; rather, the Agency has to ensure 

that the request complies with the 

regulatory standards for section 107(d) 

redesignations and that the 

redesignation will not interfere with the 

State’s management of air quality. Our 

proposed rule clearly describes how the 

State’s request to split hydrographic 

area 61 complies with the Federal 

standards for section 107(d) and PSD 

baseline area redesignations, and 

provides the Agency’s basis for 

concluding that the redesignation will 

not interfere with the State’s 

management of air quality. See 67 FR 

21194, at 21196–21197 (April 30, 2002). 

Comment 12: One commenter claims 

that EPA has not shown that 

hydrographic areas are PSD baseline 

areas. They assert that EPA’s notice 

aims to ‘‘replace the single 

unclassifiable area designated for 

Nevada for PM–10 with 253 

unclassifiable areas’’ which, they 

contend, disagrees with a footnote in the 

proposal saying that these areas are 

‘‘already established as the PSD baseline 

areas.’’

Response: The Federal PSD 

regulations define ‘‘baseline area’’ in 

terms of 107(d) attainment or 

unclassifiable areas. See 40 CFR 

52.21(b)(15) and 40 CFR 51.166(b)(15). 

However, as EPA explained in our 

proposal, the transition from TSP to 

PM–10 resulted in a difference between 

the section 107(d) and PSD baseline 

areas for PM–10 in Nevada. Specifically, 

the TSP baseline areas (based upon the 

State’s hydrographic areas) became PM–

10 baseline areas pursuant to our 1993 

rulemaking; however, the State of 

Nevada has a single section 107(d) 

unclassifiable area for PM–10. Thus, our 

current action represents another step in 

the transition from TSP to PM–10. This 

step re-aligns the section 107(d) areas 

with the PSD baseline areas by 

approving a request for establishing 

hydrographic areas, which had been the 

basis for TSP attainment and 

unclassifiable areas pursuant to our 

1978 rulemaking, as the attainment and 

unclassifiable areas under section 

107(d) of the Act for PM–10. 

Comment 13: One commenter argues 

that even if EPA had the intention of 

establishing 253 hydrographic areas as 

section 107(d) areas in 1978, that is not 

what the Agency actually did, nor is it 

what the Agency codified in the CFR. 

The commenter asserts that the public 

has been misled by what is in the CFR 

as opposed to what EPA is now saying 

it meant, and that all of this was done 

under the guise of a ‘‘technical 

correction’’ with no opportunity for 

public comment. 

Response: Our March 19, 2002 

clarifying rule indicates that, in our 

1978 rulemaking establishing the first 

nonattainment, attainment and 

unclassifiable areas, we stated that some 

States provided long lists of individual 

attainment and unclassifiable areas and 

that we were not listing each such area 

for those States. See 67 FR 12474, at 

12475. Through our 1978 rulemaking, 

we did in fact designate those areas as 

individual attainment and unclassifiable 

areas for the purposes of section 107(d), 

but used the short-hand term ‘‘rest of 

state’’ or ‘‘entire state’’ to denote them 

rather than listing each separate area. 

The commenter did not provide any 

evidence to the contrary. Moreover, at 

the time of our 1978 rulemaking, there 

was no compelling reason for EPA to list 

each and every attainment and 

unclassifiable area. The need for 

specificity arose in 1980 with our 

promulgation of changes to the PSD 

regulations that established the link 

between PSD baseline areas and section 

107(d) areas. Since 1978, hydrographic 

areas have represented the 107(d) 

attainment and unclassifiable areas, and 

the tables in 40 CFR 81.329 have 

continued to describe the areas for 

Nevada using the short-hand terms, 

‘‘rest of state’’ and ‘‘entire state.’’ Our 

March 2002 rule added footnotes 

clarifying the connection between ‘‘rest 

of state’’/‘‘entire state’’ and 

hydrographic areas. 

Comment 14: One commenter notes 

that Nevada’s request for the PM–10 

107(d) redesignation was made on April 

16, 2002 and that EPA has 18 months 

to act on the request (until October 

2003). The commenter questions why 

EPA is taking action so quickly, 

especially when the Agency is currently 

evaluating the existing regulatory and 

policy framework for PSD baseline area 

redesignations.

Response: EPA’s action approving the 

State’s April 16, 2002 request to 

redesignate the single PM–10 

unclassifiable area in Nevada into 

multiple unclassifiable areas (based on 

hydrographic areas) under section 

107(d), is simply another step in the 

regulatory transition from TSP to PM–

10. This particular type of section 

107(d) action does not create new PSD 

baseline areas because the PM–10 

baseline areas were established by 

operation of law through our 1993 PSD 

rulemaking as the PSD baseline areas 

originally established for TSP. (See our 

March 19, 2002 Technical Correction at 

68774 Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 

67 FR 12474 for further explanation.) 

Further, because this type of section 

107(d) action does not create new PSD 

baseline areas, it is not the type that 

could theoretically be affected by a 

change in the regulatory criteria for 

evaluating PSD baseline area 

redesignations. 

In contrast, EPA’s action approving 

the State’s November 6, 2001 request to 

redesignate hydrographic area 61 does 

create new PSD baseline areas and is the 

type that could potentially be affected 

by a change in the regulatory criteria. 

EPA’s approval of this request is 

occurring roughly one year after the 

State of Nevada submitted its 

redesignation request related to area 61. 

EPA has 18 months under the Act to 

take final action on State redesignation 

requests, and the re-evaluation of the 

regulatory criteria is not likely to be 

completed by May 6, 2003 (18 months 

from the November 2001 request); thus, 

EPA can not wait and must finalize 

action based on the current statutory 

and regulatory criteria. 

Comment 15: Several commenters 

urged EPA to expeditiously finalize our 

approval of Nevada’s area 61 

redesignation request. 

Response: Section 107(d)(3)(D) allows 

EPA 18 months from receipt of a 

complete State redesignation submittal 

to approve or deny such redesignation. 

In today’s notice, EPA is finalizing its 

proposal to approve Nevada’s November 

6, 2001 request to redesignate area 61 

into two areas. In so doing, EPA is 

acting well within the 18-month review 

period allowed by the Act. 

Comment 16: One commenter argues 

that redesignation of area 61 is 

necessary because of the way in which 

EPA’s PSD program forces areas with air 

quality better than the National Ambient 

Air Quality Standards (NAAQS) to 

further limit source emissions of PM–

10, NO2 and SOx to levels at only 20–

35% of the NAAQS. The commenter 

asserts that these more stringent limits, 

the PSD increments, were set by EPA as 

a simple percentage of the NAAQS and 

are not health or welfare-based. 

Response: Since 1967, Congress has 

declared that one of the purposes of the 

Clean Air Act is ‘‘to protect and enhance 

the quality of the Nation’s air resources 

so as to promote the public health and 

welfare and the productive capacity of 

its population.’’ See section 101(b)(1) of 

the Act. Originally, EPA did not 

interpret the 1967 Act as granting 

authority to the Agency to promulgate 

regulations designed to prevent 

‘‘significant deterioration’’ of air quality 

in those areas which have air that 

already is cleaner than the NAAQS. 

However, EPA’s narrow interpretation 

of its own authority was overruled by 

the Court in Sierra Club v. Ruckelshaus,

344 F. Supp. 253 (D.D.C. 1972), aff’d per 

curiam, 4 E.R.C. 1815 (D.C. Cir. 1972), 

aff’d by an equally divided Court, sub 

nom. Fri v. Sierra Club, 412 U.S. 541, 37 

L. Ed. 2d 140, 93 S. Ct. 2770 (1973). 

Pursuant to Court order, EPA 

promulgated the initial PSD regulations 

in 1974 and these early PSD regulations 

identified increments for total 

suspended particulate and sulfur 

dioxide. 

In 1977, Congress clarified its 

purposes in this regard and explicitly 

endorsed the increment approach for 

preventing significant deterioration by 

enacting increments for total suspended 

particulate and sulfur dioxide (see

section 163 of the Act). For nitrogen 

dioxide and PM–10, EPA promulgated 

increments that are of equivalent 

stringency as those established by 

Congress in section 163, as required 

under sections 166(d) and 166(f) of the 

Act. See 53 FR 40656 (October 17, 1988) 

with respect to nitrogen dioxide PSD 

increments and 58 FR 31622 (June 3, 

1993) with respect to PM–10 PSD 

increments. The EPA does not agree that 

the redesignation of area 61 is necessary 

because of the statutory and regulatory 

limits on increases in concentrations of 

these pollutants. Congress’s clearly 

expressed objective in Part C of the 

Clean Air Act is to prevent significant 

deterioration of air quality in clean air 

areas within the United States. 

Comment 17: One commenter claims 

that EPA must review and consider 

comments submitted on the proposed 

rule in light of what its PSD regulations 

currently provide—State discretion in 

redesignating PSD baseline areas—and 

not what some commenters want the 

rules to provide. The commenter argues 

that to delay final approval of the 

proposed rule for consideration of 

comments that could only be described 

as a request for change to EPA’s current 

rules and policies would be to deny the 

State of Nevada the discretion accorded 

it under the Clean Air Act, Alabama 

Power and established by EPA in its 

PSD regulations. 

Response: As described in the 

proposed rule and above, EPA reviewed 

the request by the State of Nevada to 

subdivide hydrographic area 61 on the 

basis of general statutory language from 

section 107(d)(3) of the Act, which 

addresses redesignations, and EPA’s 

PSD regulations, specifically 40 CFR 

52.21(b)(15). See 67 FR 21194, at 21196. 

In the proposed rule, EPA acknowledges 

concerns about the existing regulatory 

criteria for redesignations, but indicates 

that, unless and until those criteria are 

revised, the Agency will continue to 

evaluate State-initiated section 107(d) 

redesignation requests based on the 

language of the statute itself and the 

regulatory criteria in 40 CFR part 52. In 

so doing, EPA has not delayed final 

action on this particular redesignation 

request but is acting well within the 18-

month period allowed for such actions 

under section 107(d)(3)(D) of the Act. 

Comment 18: One commenter argues 

that the court in Alabama Power Co. v 

Costle, 636 F. 2d 323 (D.C. Cir. 1979) 

held that the Clean Air Act delegated 

decisions on increment consumption 

and allocation thereof by baseline area 

designations to the States. They further 

claim that based on the decision in 

Alabama Power and EPA’s 1980 PSD 

regulations, EPA’s discretion to review 

redesignation requests by States 

involving boundaries of areas 

designated attainment or unclassifiable 

is limited to consideration of two 

criteria: (1) The boundaries of any area 

redesignated by a State cannot intersect 

the area of impact of any major 

stationary source or major modification 

that established or would have 

established a baseline date for the areas 

proposed for redesignation; and (2) the 

area redesignation can be no smaller 

than the area of impact of such sources. 

In this proposed rule, they assert that 

EPA has attempted to change its 

redesignation policy by adding a 

statutorily-derived standard of 

‘‘appropriate air quality-related 

considerations,’’ including review to 

ensure that the PSD baseline area 

redesignation ‘‘does not interfere with 

the State’s management of air quality’’

and, in doing so, has identified the 

types of redesignations that may not be 

approvable even though the examples 

that EPA lists in the proposed rule are 

precisely the type of redesignations that 

have been approved by EPA in the past. 

The commenter states that EPA cannot 

change its redesignation policy except 

through notice and comment 

rulemaking.

Response: Among many PSD issues, 

the court in Alabama Power addressed 

the issue of how the increments were to 

be protected, but did not address the 

specific issue of whether section 107(d) 

redesignations are an appropriate means 

by States to manage the increments. In 

the section of the opinion entitled 

‘‘Protection of the Increments,’’ the 

court held: ‘‘We rule that EPA has 

authority under the statute to prevent or 

to correct a violation of the increments, 

but the agency is without authority to 

dictate to the States their policy for 

management of the consumption of 

allowable increments.’’ See 636 F.2d 

323, at 361. The court also recognized 

that: ‘‘The fundamentals of the statutory 

Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 68775

4 It is important to once again note that 

hydrographic areas are already established as the 

PSD baseline areas for PM–10 (and other 

Continued

approach include differentiation within 

the clean air areas of Class I, II, and III 

areas, and specification for each class of 

areas of maximum allowable increases 

(‘‘increments’’) in pollution 

concentrations for particulate matter 

and sulfur dioxide, with provision for 

the Administrator to promulgate 

allowable increments or similar 

limitations for other pollutants governed 

by NAAQS.’’ Id. at 361, 362. In Alabama 

Power, environmental groups had 

petitioned the court to require EPA to 

promulgate guidelines detailing the 

manner in which States may permit 

consumption of the available 

increments and also to have EPA set 

aside some portion of the available 

increments to ensure that current 

development does not inadvertently 

cause a violation of the maximum 

thresholds. The court declined to do so, 

and it was in this context that the court 

held that the Agency may not prescribe 

the manner in which States will manage 

their allowed internal growth. Id. At 

363, 364. 

The commenter cites the Alabama 

Power decision as endorsing a State’s 

use of section 107(d) redesignations to 

create new PSD baseline areas and 

untrigger minor source baseline dates, 

but the court in Alabama Power did not 

address this specific issue. The court 

emphasized the State’s authority to 

manage the increment, the size of which 

is based on an area’s designation as 

Class I, II, or III, but did not rule on 

States’ use of section 107(d) 

redesignations as a means to create new 

PSD baseline areas (e.g., additional 

Class II areas), or to untrigger minor 

source baseline dates and thereby 

‘‘baseline’’ the portion of the increment 

consumed prior to the redesignation. 

This practice has been allowed under 

EPA regulations but was not one of the 

issues before the court in the Alabama 

Power case. Thus, while EPA 

acknowledges that States have the right 

to make increment management 

decisions, States also have the 

responsibility to do so in such as way 

as to prevent significant deterioration of 

their clean air resources and thereby 

achieve the fundamental statutory 

purposes of the PSD program as set forth 

in section 160 of the Act:

‘‘(1) To protect public health and welfare 

from any actual or potential adverse effect 

which in the Administrator’s judgment may 

reasonably be anticipated to occur from air 

pollution or from exposures to pollutants in 

other media, which pollutants originate as 

emissions to the ambient air, 

notwithstanding attainment and maintenance 

of all national ambient air quality standards; 

(2) to preserve, protect, and enhance the air 

quality in national parks, national wilderness 

areas, national monuments, national 

seashores, and other areas of special national 

or regional natural, recreational, scenic or 

historic value; (3) to insure that economic 

growth will occur in a manner consistent 

with the preservation of existing clean air 

resources; (4) to assure that emissions from 

any source in any State will not interfere 

with any portion of the applicable 

implementation plan to prevent significant 

deterioration of air quality for any other 

State; and (5) to assure that any decision to 

permit increased air pollution in any area to 

which this section applies is made only after 

careful evaluation of all the consequences of 

such a decision and after adequate 

procedural opportunities for informed public 

participation in the decisionmaking process.

EPA’s role is to ensure that States fulfill 

these responsibilities under the Act. See 

Alaska v. EPA, 298 F.3d 814 (9th Cir. 

2002). 

In reviewing a redesignation request 

under section 107(d)(3) of the Act, EPA 

looks to the statute and to relevant 

regulations and policies. As noted in the 

proposed rule, section 107(d)(3) does 

not provide specific criteria for EPA to 

use in evaluating a State redesignation 

request that involves changing the 

boundaries of existing attainment or 

unclassifiable areas, as opposed to 

redesignations that involve changes in 

status (e.g., ‘‘nonattainment’’ to 

‘‘attainment’’ or ‘‘nonattainment’’ to 

‘‘unclassifiable’’). See 67 FR 21194, at 

21196. As explained in the proposed 

rule, EPA concluded that the 

considerations set forth in section 

107(d)(3)(A) provide EPA with a 

statutory basis with which to evaluate 

State-initiated redesignation requests in 

addition to the existing regulatory 

criteria, and in this context (i.e., a 

request to change the boundaries of 

attainment or unclassifiable areas), EPA 

concluded that one appropriate ‘‘airquality related consideration’’ is 

whether the redesignation would 

interfere with a State’s management of 

air quality. 

The Act provides support for 

application of this consideration in a 

context where boundaries or PSD class 

designations of existing attainment or 

unclassifiable areas would be affected 

(rather than changes in attainment 

status). See section 107(e) (State is 

authorized with EPA approval to 

redesignate air quality control regions 

‘‘for purposes of efficient and effective 

air quality management’’) and section 

164(e) (resolution of disputes between 

State and Indian tribes arising from area 

redesignations from one PSD increment 

class to another: ‘‘In resolving such 

disputes relating to area redesignation, 

the Administrator shall consider the 

extent to which the lands involved are 

of sufficient size to allow effective air 

quality management or have air quality 

related values of such an area’’). 

The proposed rule indicates that EPA 

did not intend through this rulemaking 

to revise PSD regulations (40 CFR 52.21) 

or redesignation policies. See 67 FR 

21194, at 21196. If and when EPA 

decides to revise the redesignation 

criteria in the PSD regulations or to 

change its practice with regard to its 

evaluation of redesignation requests, the 

Agency will take the appropriate steps. 

Furthermore, even if one were to 

interpret the application of the 

statutorily-derived consideration 

discussed above to State redesignation 

requests as a change in policy, EPA 

clearly indicated in the proposed rule 

the criteria the Agency used to evaluate 

this State’s request, including the 

statutorily-derived consideration, and is 

acting through notice-and-comment 

rulemaking.

Comment 19: Several commenters 

express support for our proposed action 

and imply a connection between the 

State’s redesignation request for area 61 

and the construction of a natural gas 

pipeline, construction of a power plant 

in the area, the State’s electric power 

needs, electric rates, and economic 

viability of the affected area. 

Response: We acknowledge the 

commenters’ support for our action, but 

note that we do not share the opinion 

that the subdivision of area 61 under 

section 107(d) of the CAA is necessary 

for the subsequent construction of a 

natural gas pipeline, the development of 

a power plant, or the energy and 

economic benefits that flow from those 

projects. We also note that a power 

plant proposal for area 61 could 

proceed, in full accordance with all 

applicable statutory and regulatory 

requirements, regardless of EPA’s action 

to redesignate hydrographic area 61. 

The PSD permit process and regulatory 

requirements for any future power plant 

development will be essentially the 

same with or without the redesignation 

of area 61 into two areas. 

III. EPA’s Final Action 

After considering all of the factors 

described in the above sections, EPA is 

taking action to approve the State of 

Nevada’s two section 107(d) 

redesignation requests. Specifically, we 

are approving the State’s request to 

establish the statewide hydrographic 

areas (previously established for TSP) as 

the PM–10 unclassifiable areas under 

section 107(d) of the Act.4 This action 

68776 Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 

pollutants), so today’s action regarding the statewide designation for PM–10 does not effect any 

change in how the State manages their federallydelegated PSD program. For example, pursuant to 

40 CFR 52.21(b)(14)(iv), minor source baseline dates 

originally established for the TSP increments are 

not rescinded by today’s rule; they remain in effect 

and continue to apply for purposes of determining 

the amount of available PM–10 increment.

replaces the single unclassifiable area 

designated for Nevada for PM–10 with 

253 unclassifiable areas. These 253 

areas are defined as the hydrographic 

areas delineated by the Nevada Division 

of Water Resources in 1971, as adjusted 

in 1980 to recognize an additional 

hydrographic area (101A) referred to as 

Packard Valley. Together with the two 

PM–10 nonattainment areas in Nevada 

(Las Vegas and Reno planning areas), 

the total number of PM–10 section 107 

areas in the State is now 255; these are 

the same 255 section 107 areas that have 

previously been designated for TSP. 

Thus, the effect of today’s final rule 

approving the State’s request to 

establish the hydrographic areas as the 

section 107 unclassifiable areas for PM–

10 is to synchronize the classification of 

designated PM–10 section 107 areas 

with the current and longstanding 

approach the State has used to manage 

its air quality.

In approving the State’s other section 

107(d) request, we are redesignating 

hydrographic area 61 (Boulder Flat) by 

dividing the basin into two new section 

107(d) areas for PM–10, sulfur dioxide 

(SO2), and nitrogen dioxide (NO2): 

upper area 61 and lower area 61. 

Finally, we are updating the TSP table 

in 40 CFR 81 for Nevada to delete those 

designations that are no longer 

necessary. In particular, we are deleting 

the TSP attainment and unclassifiable 

area designations statewide, except for 

those in Clark County. We will delete 

the appropriate TSP designations for 

Clark County at such time as we 

approve revisions to their PSD program 

that include the PM–10 increments. 

IV. Administrative Requirements 

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 redesignates areas 

for air quality planning purposes and 

does not impose additional 

requirements. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

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

rule does not impose any enforceable 

duty, it does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4). 

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 

rule 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 rule 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. 

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. As required by 

section 3 of Executive Order 12988 (61 

FR 4729, February 7, 1996), in issuing 

this rule, EPA has taken the necessary 

steps to eliminate drafting errors and 

ambiguity, minimize potential litigation, 

and provide a clear legal standard for 

affected conduct. 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 January 13, 2002. 

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 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas.

Dated: November 6, 2002. 

Wayne Nastri, 

Regional Administrator, Region 9.

Part 81, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows:

PART 81—[AMENDED] 

1. The authority citation for Part 81 

continues to read as follows:

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

Subpart C—Section 107 Attainment 

Status Designations 

2. In § 81.329, the tables for Nevada—

TSP, Nevada—SO2, Nevada—PM–10, 

and Nevada—NO2 are revised to read as 

follows:

§ 81.329 Nevada.

Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 68777

NEVADA—TSP 

Designated area 

Does not meet 

primary

standards 

Does not meet 

secondary

standards 

Cannot be

classified 

Better than

national

standards 

(Township Range): 

Clark County: 

Las Vegas Valley (212)(15–24S, 56–64E) ........................ X ............................ ............................ ............................

Colorado River Valley (213) (22–33S, 63–66E) ............... ............................ ............................ X1 ............................

Rest of County 2 ................................................................ ............................ ............................ ............................ X 

Carson Desert (101)(15–24.5N, 25–35E) ................................ X ............................ ............................ ............................

Winnemucca Segment (70)(34–38N, 34–41E) ........................ X ............................ ............................ ............................

Lower Reese Valley (59)(27–32N, 42–48E) ............................ ............................ X ............................ ............................

Fernley Area (76)(19–21N, 23–26E) ........................................ X ............................ ............................ ............................

Truckee Meadows (87)(17–20N, 18–21E) ............................... X ............................ ............................ ............................

Mason Valley (108)(9–16N, 24–26E) ....................................... X ............................ ............................ ............................

Clovers Area (64)(32–39N, 42–46E) ........................................ ............................ X ............................ ............................

1EPA designation replaces State designation. 

2 Rest of County refers to 27 hydrographic areas either entirely or partially located within Clark County as shown on the State of Nevada Division of Water Resources’ map titled Water Resources and Inter-basin Flows (September 1971), excluding the two designated areas in Clark 

County specifically listed in the table. 

NEVADA—SO2

Designated area 

Does not meet 

primary

standards 

Does not meet 

secondary

standards 

Cannot be

classified 

Better than

national

standards 

(Township Range): 

Steptoe Valley (179) (10–29N, 61–67E): 

Central ............................................................................... ............................ ............................ ............................ X 

Northern (area which is north of Township 21 North and 

within the drainage basin of the Steptoe Valley) ........... ............................ ............................ X ............................

Southern (area which is south of Township 15 North and 

within the drainage basin of the Steptoe Valley) ........... ............................ ............................ X ............................

Boulder Flat (61) (31–37N, 45–51E): 

Upper Unit 61 .................................................................... ............................ ............................ ............................ X 

Lower Unit 61 .................................................................... ............................ ............................ ............................ X 

Rest of State 1 ........................................................................... ............................ ............................ ............................ X 

1 Rest of State refers to hydrographic areas as shown on the State of Nevada Division of Water Resources’ map titled Water Resources and 

Inter-basin Flows (September 1971), excluding the designated areas specifically listed in the table. 

* * * * *

NEVADA—PM–10 

Designated area 

Designation Classification 

Date Type Date Type 

Washoe County: 

Reno planning area ........................................................................... 11/15/90 Nonattainment 02/07/01 Serious. 

Hydrographic area 87 

Clark County: 

Las Vegas planning area .................................................................. 11/15/90 Nonattainment 02/08/93 Serious. 

Hydrographic area 212 

Boulder Flat (61) (31–37N, 45–51E): 

Upper Unit 61 .................................................................................... 11/15/90 Unclassifiable 

Lower Unit 61 .................................................................................... 11/15/90 Unclassifiable 

Rest of State 1 .......................................................................................... 11/15/90 Unclassifiable 

1 Rest of State refers to hydrographic areas as shown on the State of Nevada Division of Water Resources’ map titled Water Resources and 

Inter-basin Flows (September 1971), as revised to include a division of Carson Desert (area 101) into two areas, a smaller area 101 and area 

101A, and excluding the designated areas specifically listed in the table. 

68778 Federal Register / Vol. 67, No. 219 / Wednesday, November 13, 2002 / Rules and Regulations 

NEVADA–NO2

Designated area 

Does not meet 

primary

standards 

Cannot be

classified

or better than national standards 

Boulder Flat (61)(31–37N, 45–51E): 

Upper Unit 61 ........................................................................................................................................... ............................ X 

Lower Unit 61 ........................................................................................................................................... ............................ X 

Rest of State 1 .................................................................................................................................................. ............................ X 

1 Rest of State refers to hydrographic areas as shown on the State of Nevada Division of Water Resources’ map titled Water Resources and 

Inter-basin Flows (September 1971), excluding the designated areas specifically listed in the table. 

[FR Doc. 02–28851 Filed 11–12–02; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Bureau of Land Management 

43 CFR Parts 3600, 8200, and 8360 

[WO–320–1430–PB–24 1A] 

RIN 1004–AD29 

Mineral Materials Disposal; Natural 

History Resource Management: 

Procedures; Visitor Services

AGENCY: Bureau of Land Management, 

Interior.

ACTION: Correcting amendments.

SUMMARY: This document corrects the 

Bureau of Land Management (BLM) 

final rule on mineral materials disposal 

that was published November 23, 2001 

(66 FR 58892), by adding changes in 

several cross references to the 

regulations on mineral materials 

disposal that appear elsewhere in BLM 

regulations. These cross-reference 

amendments should have appeared in 

the original final rule. This document 

also corrects typographical and editorial 

errors in the 2001 final rule.

EFFECTIVE DATE: January 22, 2002.

FOR FURTHER INFORMATION CONTACT: Dr. 

Durga N. Rimal, Solid Minerals Group, 

at (202) 452–0350. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 1–800–877–

8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: The final 

rule published on November 23, 2001 

(66 FR 58892–58910), removed part 

3610 and subpart 3621 as part of its 

reorganization of the regulations on 

mineral materials disposal in 43 CFR 

part 3600, and made a conforming 

amendment in 43 CFR subpart 3809. 

The final rule should have amended the 

cross-references to part 3610 that appear 

in 43 CFR sections 8224.1 and 8365.1–

5, and a cross-reference to subpart 3621 

that appears in section 8365.1–5. 

Because the substance of the removed 

CFR units appears in other sections of 

revised part 3600, the cross-references 

should have been amended and not 

removed. These erroneous crossreferences in the Code of Federal 

Regulations may prove to be misleading 

and need to be corrected. This 

document corrects this oversight. 

We are also correcting editorial and 

typing errors in part 3600. In section 

3601.51, which describes when BLM 

may inspect your mineral materials 

operation, we are correcting a 

conjunction from ‘‘and’’ to ‘‘or’’ in order 

to forestall a possible interpretation of 

the provision to require a BLM inspector 

planning to inspect, for example, mine 

conditions also to conduct unnecessary 

surveys and examine weight tickets, 

which was not our intent in preparing 

the final rule. Also, in section 

3602.12(c), we are correcting the term 

‘‘public lands laws’’ to read ‘‘public 

land laws’’, the term as used in all other 

BLM regulations. 

Finally, we are correcting a printing 

error in a CFR authority citation. The 

citation for the Land and Water 

Conservation Fund Act is 16 U.S.C. 

460l–6a, which contains the italic letter 

‘‘ell’’ in the section number. This 

appears in the authority citation for part 

8360 as the numeral ‘‘one’’, an error that 

this document corrects.

Dated: October 29, 2002. 

Michael H. Schwartz, 

Group Manager, Regulatory Affairs.

For these reasons, make the following 

correcting amendments in 43 CFR parts 

3600, 8200, and 8360:

PART 3600—MINERALS MATERIALS 

DISPOSAL 

1. The authority citation for part 3600 

continues to read as follows:

Authority: 30 U.S.C. 601 et seq.; 43 U.S.C. 

1201, 1732, 1733, 1740; Sec. 2, Act of 

September 28, 1962 (Pub. L. 87–713, 76 Stat. 

652).

§ 3601.51 [Corrected] 

2. In § 3601.51, amend paragraph (d) 

by removing the word ‘‘and’’ following 

the semicolon at the end of the 

paragraph, and adding in its place the 

word ‘‘or’’.

§ 3602.12 [Corrected] 

3. In § 3602.12, amend paragraph (c) 

by removing the phrase ‘‘public lands 

laws’’ from where it appears in the first 

sentence, and adding in its place the 

phrase ‘‘public land laws’’.

Group 8200—Natural History Resource 

Management

PART 8200—PROCEDURES 

4. The authority citation for part 8200 

continues to read as follows:

Authority: 43 U.S.C. 1181 (a) and (e), 43 

U.S.C. 1201, 43 U.S.C. 1701 et seq.

Subpart 8224—Fossil Forest Research 

Natural Area

§ 8224.1 [Corrected] 

5. Correct § 8224.1 by removing at the 

end of paragraph (b) the term ‘‘§ 3610.1’’

and adding in its place the term 

‘‘subpart 3602’’.

PART 8360—VISITOR SERVICES 

6. The authority citation for part 8360 

is corrected to read as follows:

Authority: 43 U.S.C. 1701 et seq., 43 U.S.C. 

315a, 16 U.S.C. 1281c, 16 U.S.C. 670 et seq., 

16 U.S.C. 460l–6a, 16 U.S.C. 1241 et seq.

Subpart 8365—Rules of Conduct

§ 8365.1 [Corrected] 

7. Correct § 8365.1–5 in paragraph 

(b)(4) by revising the reference to 

‘‘subpart 3621 of this title’’ to read 

‘‘subpart 3604’’, and in paragraph (c) by 

revising the phrase ‘‘part 3610 or 5400 

of this title’’ to read ‘‘part 3600 or 5400 

of this chapter’’.

[FR Doc. 02–28704 Filed 11–12–02; 8:45 am] 

BILLING CODE 4310–84–P