[Federal Register Volume 72, Number 88 (Tuesday, May 8, 2007)]
[Rules and Regulations]
[Pages 25969-25971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8695]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0677a; FRL-8303-2]


Revisions to the Nevada State Implementation Plan, Washoe County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Washoe County portion of the Nevada State Implementation Plan (SIP). 
These revisions concern particulate matter (PM) emissions from fugitive 
dust sources, such as open areas, unpaved roads, and construction 
activities. We are approving this local rule that regulates these 
emission sources under the Clean Air Act as amended in 1990 (CAA or the 
Act).

DATES: This rule is effective on July 9, 2007 without further notice, 
unless EPA receives adverse comments by June 7, 2007. If we receive 
such comments, we will publish a timely withdrawal in the Federal 
Register to notify the public that this direct final rule will not take 
effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0677a, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#ff8c8b9a9c949a93d19e919b8d9a88bf9a8f9ed1989089"><span class="__cf_email__" data-cfemail="5f2c2b3a3c343a33713e313b2d3a281f3a2f3e71383029">[email protected]</span></a>.
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

[[Page 25970]]


FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, EPA Region IX, at 
either (415) 947-4111, or <a href="/cdn-cgi/l/email-protection#1b6c7a7668777e6235717e6969625b7e6b7a357c746d"><span class="__cf_email__" data-cfemail="93e4f2fee0fff6eabdf9f6e1e1ead3f6e3f2bdf4fce5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule revision?
II. EPA's Evaluation and Action.
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. EPA Recommendations to Further Improve the Rule
    D. Public Comment and Final Action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule we are approving with the date that it was 
adopted by Washoe County and submitted by Nevada.

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
             Local agency                  Rule No.            Rule title             Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
Washoe Co.............................         040.030  Dust Control............        07/26/02        08/05/02
----------------------------------------------------------------------------------------------------------------

    On February 5, 2003, this Rule 040.030 submittal became complete by 
operation of law because EPA did not make a formal finding that it met 
the completeness criteria in 40 CFR part 51 Appendix V. These criteria 
must be met before formal EPA review may begin.

B. Are there other versions of this rule?

    We approved a prior version of this rule into the Nevada SIP on 
July 27, 1972; please see 37 Federal Register (FR) 15086. On October 
30, 1991, Nevada submitted a revised version of Regulation 040.030 to 
EPA as part of its moderate PM-10 nonattainment area plan. Nevada 
submitted additional revisions to Regulation 040.030 to EPA on 
September 18, 1992, and March 25, 1994, as ``addenda'' to its moderate 
PM-10 area nonattainment plan. EPA did not act on these submitted 
versions of the rule, but they have been in effect under state law 
since their adoption.

C. What is the purpose of the submitted rule revision?

    Washoe County Regulation 040.030--Dust Control is designed to limit 
the emissions of fugitive dust or particulate matter from a variety of 
activities and sources such as construction sites, bulk material 
hauling, unpaved parking lots, and disturbed soil in open areas and 
vacant lots. Regulation 040.030 is a significant part of the Washoe 
County serious area PM-10 attainment plan control strategy for the 
Truckee Meadows Air Basin (TMAB). The Washoe County serious area PM-10 
attainment plan (submitted August 2002) identified fugitive dust from 
construction activity and disturbed land as significant sources of PM-
10 emissions. EPA's technical support document (TSD) has more 
information about this rule.

II. EPA's Evaluation and Action.

A. How is EPA evaluating the rule?

    On January 8, 2001, EPA determined TMAB had failed to attain the 
annual and 24-hour PM-10 standards by the statutory deadline of 
December 31, 1994 based on monitored air quality data during the years 
1992-94. Consequently, the area was reclassified under CAA 188(b)(2) by 
operation of law as a serious nonattainment area, effective February 7, 
2001. See 66 FR 1268 (January 8, 2001). States containing initial 
moderate PM-10 nonattainment areas that are reclassified as serious 
under CAA section 188(b)(2) are required under section 189(b)(2) to 
submit a serious PM-10 nonattainment plan within 18 months of the 
reclassification. A serious PM-10 nonattainment plan must provide for, 
among other things, implementation of best available control measures 
(BACM), including best available control technology (BACT). Also, SIP 
rules must be enforceable (see section 110(a) of the Act) and must not 
interfere with existing requirements contributing towards meeting air 
quality standards (section 110(l)) or relax control requirements 
existing before November 15, 1990 (see section 193). We have listed 
below the guidance and policy documents that we used to evaluate this 
rule for enforceability, RACM, and BACM requirements.
    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Review of State Implementation Plans and Revisions for 
Enforceability and Legal Sufficiency'', September 23, 1987.
    3. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations; Clarification to Appendix D of November 24, 1987 Federal 
Register Notice,'' (Blue Book), notice of availability published in the 
May 25, 1988 Federal Register.
    4. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    5. ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' at 57 FR 13498, April 16, 1992.
    6. ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' at 57 FR 18070, April 28, 1992.
    7. ``Fugitive Dust Background Document and Technical Information 
Document for Best Available control Measures,'' EPA 450/2-92-004, 
September 1992.
    8. General Preamble for the Implementation of Title I of the Clean 
Air Act Amendments of 1990,'' at 59 FR 41998, August 16, 1994.

B. Does the rule meet the evaluation criteria?

    We believe this rule is consistent with the relevant policy and 
guidance regarding enforceability, BACM, and SIP relaxations. 
Regulation 040.030 contains specific well-defined requirements that are 
enforceable. The rule also contains new control measures that achieve 
substantially greater emission reductions compared to the 1972 rule in 
the SIP. Consequently, EPA finds that the submitted rule does not 
interfere with progress toward air quality standards and does not relax 
any SIP control requirements existing before November 15, 1990. The TSD 
provides more information on our evaluation.

C. EPA Recommendations To Further Improve the Rule

    We have no recommendations.

D. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, EPA is fully 
approving the submitted rule because we believe it

[[Page 25971]]

fulfills all relevant requirements. We do not think anyone will object 
to this approval, so we are finalizing it without proposing it in 
advance. However, in the Proposed Rules section of this Federal 
Register, we are simultaneously proposing approval of the same 
submitted rules. If we receive adverse comments by June 7, 2007, we 
will publish a timely withdrawal in the Federal Register to notify the 
public that the direct final approval will not take effect and we will 
address the comments in a subsequent final action based on the 
proposal. If we do not receive timely adverse comments, the direct 
final approval will be effective without further notice on July 9, 
2007. This will incorporate these rules into the federally enforceable 
SIP.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

III. 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 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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 July 9, 2007. 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) of the CAA.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: February 15, 2007.
Wayne Nastri,
Regional Administrator, Region IX.

    Editorial Note: This document was received at the Office of the 
Federal Register on May 2, 2007.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart DD--Nevada

0
2. Section 52.1470 is amended by adding paragraph (c)(55)(i)(A)(2) to 
read as follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (55) * * *
    (i) * * *
    (A) * * *
    (2) Regulation 040.030 adopted on July 26, 2002.
* * * * *
 [FR Doc. E7-8695 Filed 5-7-07; 8:45 am]
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