54006 Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 

availability of coverage to the targeted 

recipients. When insurance policy 

coverages are compared to determine 

whether coverage in a policy offered by 

an organization is not generally 

otherwise commercially available, the 

comparison is based on the specific 

characteristics of the mailpiece 

recipients (e.g., geographic location or 

demographics). 

b. Except as specified in 5.5c, the 

types of insurance considered generally 

otherwise commercially available 

include, but are not limited to, 

homeowner’s, property, casualty, 

marine, professional liability (including 

malpractice), travel, health, life, 

airplane, automobile, truck, motorhome, 

motorbike, motorcycle, boat, accidental 

death, accidental dismemberment, 

Medicare supplement (Medigap), 

catastrophic care, nursing home, and 

hospital indemnity insurance. 

c. Coverage is considered not 

generally otherwise commercially 

available if either of the following 

conditions applies: 

(1) The coverage is provided by the 

nonprofit organization itself (i.e., the 

nonprofit organization is the insurer). 

(2) The coverage is provided or 

promoted by the nonprofit organization 

in a mailing to its members, donors, 

supporters, or beneficiaries in such a 

way that the members, donors, 

supporters, or beneficiaries may make 

tax-deductible donations to the 

nonprofit organization of their 

proportional shares of any income in 

excess of costs that the nonprofit 

organization receives from the purchase 

of the coverage by its members, donors, 

supporters, or beneficiaries.

* * * * *

An appropriate amendment to 39 CFR 

part 111 will be published to reflect 

these changes.

Neva R. Watson, 

Attorney, Legislative.

[FR Doc. 04–20185 Filed 9–3–04; 8:45 am] 

BILLING CODE 7710–12–P

POSTAL SERVICE

39 CFR Parts 310 and 320

Restrictions on Private Carriage of 

Letters

AGENCY: Postal Service.

ACTION: Final rule.

SUMMARY: This rule amends the Postal 

Service regulations on enforcement and 

suspension of the Private Express 

Statutes to correct obsolete addresses.

EFFECTIVE DATE: September 7, 2004.

FOR FURTHER INFORMATION CONTACT:

Stanley F. Mires, (202) 268–2958.

SUPPLEMENTARY INFORMATION:

Amendment of parts 310 and 320 is 

necessary to correct the addresses for 

inquiries and other correspondence 

regarding enforcement of the Private 

Express Statutes.

List of Subjects in 39 CFR Parts 310 and 

320

Advertising; Computer technology.

■ For the reasons set forth above, the 

Postal Service amends 39 CFR Chapter I, 

Subchapter E as follows:

PART 310—[AMENDED]

■ 1. The authority citation for part 310 

continues to read as follows:

Authority: 39 U.S.C. 401, 404, 601–606; 18 

U.S.C. 1693–1699.

■ 2a. Revise § 310.5(b) to read as follows:

§ 310.5 Payment of postage on violation.

* * * * *

(b) The amount equal to postage will 

be due and payable not later than 15 

days after receipt of formal demand 

from the Inspection Service or the 

Chicago Rates and Classification Service 

Center (RCSC) unless an appeal is taken 

to the Judicial Officer Department in 

accordance with rules of procedure set 

out in part 959 of this chapter.

* * * * *

■ 2b. Revise § 310.6 to read as follows:

§ 310.6 Advisory opinions. 

An advisory opinion on any question 

arising under this part and part 320 of 

this chapter may be obtained by writing 

the Senior Counsel, Ethics and 

Information, U.S. Postal Service, 475 

L’Enfant Plaza SW., Washington, DC 

20260–1127. A numbered series of 

advisory opinions is available for 

inspection by the public in the Library 

of the U.S. Postal Service, and copies of 

individual opinions may be obtained 

upon payment of charges for duplicating 

services.

PART 320—[AMENDED]

■ 3. The authority citation for part 320 

continues to read as follows:

Authority: 39 U.S.C. 401, 404, 601–606; 18 

U.S.C. 1693–1699.

■ 4. Amend § 320.3 in the following 

manner—

■ a. Revise § 320.3(a) to read as set forth 

below; and

■ b. Amend § 320.3(b) by removing the 

words ‘‘properly identified postal 

inspector’’ and adding the words 

‘‘properly identified representative of 

the RCSC’’ in their place.

§ 320.3 Operations under suspension for 

certain data processing materials. 

(a) Carriers intending to establish or 

alter operations based on the suspension 

granted pursuant to § 320.2 shall, as a 

condition to the right to operate under 

the suspension, notify the National 

Administrator for the Private Express 

Statutes, U.S. Postal Service, RCSC, 

3900 Gabrielle Lane, Rm. 111, Fox 

Valley, IL 60597–9599, of their intention 

to establish such operations not later 

than the beginning of such operations. 

Such notification, on a form available 

from the office of the National 

Administrator for the Private Express 

Statutes, shall include information on 

the identity and authority of the carrier 

and the scope of its proposed 

operations.

* * * * *

Stanley F. Mires, 

Chief Counsel, Legislative.

[FR Doc. 04–20184 Filed 9–3–04; 8:45 am] 

BILLING CODE 7710–12–P

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.

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 

Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 54007

2NAC 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.

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

Agency Rule # Rule title Adopted Submitted 

DAQEM ............ 0 ............................. Definitions ..................................................................................................... 10/07/03 10/23/03 

DAQEM ............ 11 ........................... Ambient Air Quality Standards ..................................................................... 10/07/03 10/23/03 

DAQEM ............ 12 ........................... Preconstruction Review for New or Modified Stationary Sources ............... 10/07/03 10/23/03 

DAQEM ............ 52.8 ........................ Gasoline Dispensing Facilities—Section 52 Offset Program ....................... 10/07/03 10/23/03 

DAQEM ............ 58 ........................... Emission Reduction Credits ......................................................................... 10/07/03 10/23/03 

DAQEM ............ 59 ........................... Emission Offsets .......................................................................................... 10/07/03 10/23/03 

SEC .................. NAC 445B.22083 ... Construction, major modification or relocation of plants to generate electricity using steam produced by burning of fossil fuels.03/29/94 11/20/03 

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.

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 

54008 Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 

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 SIPapproved 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 

Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 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 locallyadopted (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 

54010 Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 

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 EPAapproved) 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 

Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 54011

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).

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

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 EPAapproved 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 

54012 Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 

4CAA 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.

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

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 reaffirmed 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-topotential’’ test with the ‘‘actual-topotential’’ 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 

Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 54013

5Section 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).

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.

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 

54014 Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 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 

54016 Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 54017

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.

7HAP 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 noncriteria pollutant requirements of the Federal NSR 

regulations.

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 OffRoad 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

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.

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 

54018 Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 

8We 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.

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.

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.

■ Part 52, Chapter I, Title 40 of the 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 DD—Nevada

■ 2. Section 52.1470 is amended as 

follows:

■ a. Adding paragraphs (c)(5)(i), 

(c)(16)(viii)(C), (c)(17)(ii)(A), (c)(53), and 

(c)(54);

■ b. Revising paragraph (c)(33)(i)(A); and

■ c. Removing and reserving paragraphs 

(c)(36) and (c)(37).

§ 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 

Federal Register / Vol. 69, No. 172 / Tuesday, September 7, 2004 / Rules and Regulations 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.

■ 3. Section 52.1483 is amended as 

follows:

■ a. Redesignating paragraph (a)(1)(i) as 

paragraph (a)(1)(iii);

■ b. Adding new paragraphs (a)(1)(i) and 

(a)(1)(ii); and

■ c. Revising newly designated 

paragraph (a)(1)(iii).

§ 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.

■ 4. Section 52.1488 is amended by 

revising paragraph (b) to read as follows:

§ 52.1488 Visibility protection.

* * * * *

(b) Regulation for visibility 

monitoring and new source review. The 

provisions of § 52.26 are hereby 

incorporated and made a part of the 

applicable plan for the State of Nevada. 

The provisions of § 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] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[RME Docket Number R08–OAR–2004–CO–

0002; FRL–7809–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

Colorado; Colorado Springs Revised 

Carbon Monoxide Maintenance Plan 

and Approval of Related Revisions

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action approving a State 

Implementation Plan (SIP) revision 

submitted by the State of Colorado. On 

April 12, 2004, the Governor of 

Colorado submitted a revised 

maintenance plan for the Colorado 

Springs carbon monoxide (CO) 

maintenance area for the CO National 

Ambient Air Quality Standard 

(NAAQS). The revised maintenance 

plan contains a revised transportation 

conformity budget for the year 2010 and 

beyond. In addition, the Governor 

submitted revisions to Colorado’s 

Regulation No. 11 ‘‘Motor Vehicle 

Emissions Inspection Program.’’ In this 

action, EPA is approving the Colorado 

Springs CO revised maintenance plan, 

revised transportation conformity 

budget, and the revisions to Regulation 

No. 11. This action is being taken under 

section 110 of the Clean Air Act.

DATES: This rule is effective on 

November 8, 2004, without further 

notice, unless EPA receives adverse 

comment by October 7, 2004. If adverse 

comment is received, EPA will publish 

a timely withdrawal of the direct final 

rule in the Federal Register informing 

the public that the rule will not take 

effect.

ADDRESSES: Submit your comments, 

identified by RME Docket Number R08–

OAR–2004–CO–0002, by one of the 

following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http://

docket.epa.gov/rmepub/index.jsp.

Regional Materials in EDOCKET (RME), 

EPA’s electronic public docket and 

comment system for regional actions, is 

EPA’s preferred method for receiving 

comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: long.richard@epa.gov and 

russ.tim@epa.gov.

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Richard R. Long, Director, Air 

and Radiation Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 999 18th Street, Suite 

300, Denver, Colorado 80202–2466. 

• Hand Delivery: Richard R. Long, 

Director, Air and Radiation Program, 

Environmental Protection Agency 

(EPA), Region 8, Mailcode 8P–AR, 999 

18th Street, Suite 300, Denver, Colorado 

80202–2466. Such deliveries are only 

accepted Monday through Friday, 8 a.m. 

to 4:55 p.m., excluding federal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

RME Docket Number R08–OAR–2004–

CO–0002. EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available at http://

docket.epa.gov/rmepub/index.jsp,

including any personal information 

provided, unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through 

EDOCKET, regulations.gov, or e-mail. 

EPA’s Regional Materials in EDOCKET 

and federal regulations.gov Web site are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA, without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your