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]

m 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

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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

I1. 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

D A Q E M ............ 0.......................... D efin itio n s ..............................................................................

10/0 7 /0 3 10 /2 3 /0 3

DAQ EM ............ 11 ........................... A m bient A ir Q uality 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

D A Q E M ............ 58 ........................... Em ission R eduction C redits .................................... ..... ............................. 10/07/03 10/23/03

DAQ EM ............ 59 ........................... Em ission O ffsets .......................................................... 10/07/03 10/23/03

SEC .................. NAC 445B.22083 ... Construction, major modification or relocation of plants to generate elec- 03/29/94 11/20/03

tricity using steam produced by burning of fossil fuels.

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

2

NAC 445B.22083 prohibits new power plants or

major modifications to existing power plants under

State jurisdiction (i.e., plants that generate

electricity using steam produced by burning of

fossil fuels but not including any plant which uses

technology for a simple or combined cycle

combustion turbine), within the Las Vegas Valley

nonattainment area and certain other areas within

Clark County. See the proposed rule at 69 FR

31058-31059 for more information on this State

regulation.

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

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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(1), 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(1) 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(1), 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(1). 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

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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(1) 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(1) evaluation for CO); 69

FR at 31062, column 1 (section 110(1)

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(1) 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

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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.govl

region 09/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

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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.

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).

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(1) 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

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reasonable further progress goals or

other specific requirements, it may

revise SIP provisions, even if the

revision amounts to a relaxation. See

Hallv. EPA, 273 F.3d 1146, 1160 (9th

Cir. 2001) (explaining that to make a

finding under CAA section 110(1), "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(1). 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(1), 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(1) 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 PM10. 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

4 CAA section 193 uses the phrase "equivalent or

greater emission reductions," but, in the context of

NSR programs, which are not specifically designed

to produce emissions reductions themselves but to

assure that stationary source growth occurs in a

manner that is consistent with an area's overall

control strategy, the phrase means equivalent or

greater mitigation of emissions increases due to new

stationary source growth.

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(1)

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

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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(1)

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(1) 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

5 Section 15, subsection 15.14.4.3.3, appears to

establish certain requirements for creation and use

of offsets under the existing SIP NSR program.

However, a typographical error in the listing of this

particular subsection in both our proposed

rulemaking (see 47 FR 7267, February 18, 1982),

and final rulemaking (see 47 FR 26620, June 21,

1982) cast doubt on the validity of EPA's approval

of that subsection into the SIP. Also, see 40 CFR

52.1470(c)(24)(iii).

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 PM10), 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

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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 PM10 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

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110(1) 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(1)

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(1) 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 PM10, 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

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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(1) 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(1) 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 PM10 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 ResourcesInformation 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 PM10 sources in Apex Valley under the

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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(1) as it relates to PM10 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(1) 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(1) 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

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

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

had been submitted as part of the Las Vegas PM10 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.

7 HAP regulations are not inappropriate for

approval as part of a SIP in every instance, see, e.g.,

40 CFR part 51, Appendix S, IV. C.6, but in this

instance, CCAQR subsections 12.2.18 and 12.2.20

do not apply to sources subject to the criteria

pollutant provisions contained in other subsections

of CCAQR section 12 and thus are inappropriate

because they would not contribute to attainment of

a NAAQS nor are they needed to satisfy the noncriteria pollutant requirements of the Federal NSR

regulations.

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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,

8

We had indicated in our June 2, 2004 proposed

rule that we would clarify the disapproval status of

these rules by revising the appropriate paragraphs

in 40 CFR 52.1470, but we are instead adding text

to 40 CFR 52.1483, which is a specific section of

40 CFR part 52, subpart DD (Nevada) that lists

regulations that address upset conditions and that

have been submitted to EPA as revisions to the

Nevada SIP but that have been specifically

disapproved by EPA.

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]

m 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:

m 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

m 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

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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:

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

paragraph (a)(1)(iii);

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

(a)(1)(ii); and

m 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 5 2.1488 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-CO0002; 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

muss.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

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