31056 Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 

HUD to contract with the Harvard 

University Graduate School of Design 

(Harvard GSD) to conduct a study on the 

costs incurred in operating well-run 

public housing. Harvard GSD issued a 

final report, the Harvard Cost Study, on 

June 6, 2003. In Section 222 of the 

Consolidated Appropriations Act, 2004 

(Pub. L. 108–199, approved January 23, 

2004), Congress directed the Secretary 

to conduct negotiated rulemaking with 

the publication of a final rule by July 1, 

2004. 

On March 10, 2004, HUD published a 

document establishing a Negotiated 

Rulemaking Advisory Committee on the 

Operating Fund (Committee) to provide 

advice and recommendations on 

developing a rule for effectuating 

changes to the Public Housing 

Operating Fund Program in response to 

the Harvard Cost Study. The Committee 

has met three times. The first meeting 

was held in Washington, DC on March 

30, March 31, and April 1, 2004. A 

second meeting was held, also in 

Washington, DC, on April 13–15, 2004. 

The third Committee meeting was held 

on May 11 and 12, 2004, in Atlanta, 

Georgia. 

II. Committee Meeting 

This document announces a fourth 

meeting of the Committee. The 

Committee meeting will take place as 

described in the DATES and ADDRESSES

section of this document. 

In accordance with the Federal 

Advisory Committee Act (5 U.S.C. 

Appendix) and the implementing 

regulations issued by the General 

Services Administration at 41 CFR part 

102–3, HUD publishes notices in the 

Federal Register of an advisory 

committee meeting at least 15 calendar 

days prior to the meeting. In this case 

HUD is providing less than 15-days 

advance notice due to exceptional 

circumstances. The Committee was 

originally scheduled to complete its 

work at the third meeting. Although 

great progress was made at the previous 

meeting towards the development of a 

rule, the Committee determined that a 

fourth meeting would be necessary to 

complete its work. The time required to 

complete hotel reservations and other 

logistical arrangements prevented 

publication of this meeting notice prior 

to today’s date. 

The agenda planned for the meeting 

includes discussion of issues relating to 

the development of changes in response 

to the Harvard Cost Study. The meeting 

will be open to the public without 

advance registration. Public attendance 

may be limited to the space available. 

Members of the public may be allowed 

to make statements during the meeting, 

to the extent time permits, and file 

written statements with the committee 

for its consideration. Written statements 

should be submitted to the address 

listed in the FOR FURTHER INFORMATION

section of this document.

Dated: May 27, 2004. 

Deborah Hernandez, 

Director, Office of Voucher Programs.

[FR Doc. 04–12495 Filed 6–1–04; 8:45 am] 

BILLING CODE 4210–33–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[NV052–0079; FRL–7669–3] 

Approval and Promulgation of 

Implementation Plans; New Source 

Review; State of Nevada, Clark County 

Department of Air Quality Management

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: This action is a proposed 

partial approval and partial disapproval 

of several rules that were submitted as 

a revision of the Clark County portion 

of the Nevada State Implementation 

Plan (SIP). We had approved a similar 

version of these rules into the Nevada 

SIP in 1999. See 64 FR 25210 (May 11, 

1999). Our approval was appealed to the 

U.S. Court of Appeals for the Ninth 

Circuit, which vacated the 1999 

approval and remanded our approval of 

the rules for further consideration. See 

Hall v. EPA, 273 F.3d 1146 (9th Cir. 

2001). This proposed partial approval 

and partial disapproval of the rules for 

the reasons discussed more fully below 

responds to the issues raised in the 

court’s remand. 

The rules at issue in this proposed 

action were adopted by the Clark 

County Department of Air Quality 

Management 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 to prevent significant 

deterioration in attainment areas and to 

attain the National Ambient Air Quality 

Standards in nonattainment areas. EPA 

is also proposing to approve as a 

revision to the Nevada SIP a State 

regulation prohibiting the construction 

of major new or modified sources under 

exclusive State jurisdiction in the 

nonattainment areas within Clark 

County. The intended effect of this 

proposed action is to ensure that the 

Clark County Department of Air Quality 

Management’s permitting rules are 

consistent with Ninth Circuit’s ruling in 

Hall v. EPA and with the requirements 

of the Clean Air Act, as amended in 

1990. EPA is also proposing to amend 

the appropriate section of the Code of 

Federal Regulations to reflect the 

successful court challenge to an EPA 

approval of previous versions of these 

local rules. Lastly, under section 

110(k)(6) of the Act, EPA is proposing 

to correct or clarify certain previous 

final rulemaking actions taken by EPA 

on revisions to the Clark County portion 

of the Nevada SIP. EPA is taking 

comments on this proposal and plans to 

follow with a final action.

DATES: Comments on this proposed rule 

must be received in writing by July 2, 

2004.

ADDRESSES: Written comments on this 

action should be addressed to Gerardo 

Rios, Chief, Permits Office, Air Division 

(AIR–3), EPA Region IX, 75 Hawthorne 

Street, San Francisco, California, 94105. 

You can inspect copies of the State’s 

submittals, EPA’s technical support 

documents (TSDs), and other supporting 

documentation relevant to this action, 

during normal business hours at 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. The State’s submittal of DAQM’s 

amended rules is available at the Clark 

County Department of Air Quality 

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. Evaluation of Clark County New Source 

Review Rules 

A. The State’s Submittal 

B. EPA’s Evaluation and Action 

II. Corrections to, or Clarification of, the 

Clark County Portion of Nevada State 

Implementation Plan 

III. Proposed Action and Public Comment 

IV. Statutory and Executive Order Reviews

I. Evaluation of Clark County New 

Source Review Rules

A. The State’s Submittal 

Table 1 lists the rules addressed by 

this proposal with the dates that they 

were adopted by the local air agency, 

the Clark County Department of Air 

Quality Management (DAQM), or were 

adopted by the State Environmental 

Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 31057

Commission (SEC), and submitted by 

the State air agency, the Nevada 

Division of Environmental Protection 

(NDEP), to EPA as revisions to the 

Nevada State Implementation Plan 

(SIP).

TABLE 1.—SUBMITTED RULES

Agency Rule # Rule title Adopted Submitted 

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

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

DAQM ....................................... 12 ..................... Preconstruction Review for New or Modified Stationary 

Sources.

10/07/03 10/23/03 

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

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

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

SEC .......................................... NAC 445B. 

22083.

Construction, major modification or relocation of plants to generate electricity using steam produced by burning of fossil 

fuels.

03/29/94 11/20/03 

On November 18, 2003, the submittal 

containing DAQM’s rules was found to 

meet the completeness criteria in 40 

CFR part 51, appendix V, which must be 

met before formal EPA review. 

DAQM’s predecessor agency (the 

Clark County Health District) adopted 

earlier versions of the Clark County New 

Source Review (NSR) rules, then 

numbered section 1 (Definitions), 

section 11 (Ambient Air Quality 

Standards), and section 15 (Source 

Registration), at various times from 1979 

through 1981, which we approved into 

the Clark County portion of the Nevada 

SIP at various times in 1981 and 1982. 

Specifically, we approved different 

defined terms of section 1 (Definitions) 

into the applicable SIP on three 

occasions in 1981 and 1982. See 46 FR 

21758 (April 14, 1981), 46 FR 43141 

(August 27, 1981), and 47 FR 26620 

(June 21, 1982). We approved section 11 

(Ambient Air Quality Standards) into 

the applicable SIP on August 27, 1981 

(46 FR 43141). We approved different 

subsections of section 15 (Source 

Registration) into the applicable SIP on 

two occasions in 1981 and 1982. See 46 

FR 21758 (April 14, 1981) and 47 FR 

26620 (June 21, 1982). 

Pursuant to the Clean Air Act 

Amendments of 1990 (CAA or Act), 

Clark County revised their NSR rules, 

then contained in local sections 0, 12, 

and 58, and in 1995, EPA proposed to 

approve with a contingency, and 

disapprove in the alternative, these 

revised rules into the SIP. See 60 FR 

38777 (July 28, 1995). Following our 

1995 proposed action, Clark County 

revised their NSR rules (sections 0, 12, 

and 58) to address the contingency 

identified by EPA and re-submitted 

them via NDEP to EPA. In 1999, we 

found the contingency to have been 

satisfied and approved the revised NSR 

rules into the SIP. See 64 FR 25210 

(May 11, 1999). Our 1999 final action 

was challenged, and in 2001, the U.S. 

Court of Appeals for the Ninth Circuit 

vacated our approval of Clark County’s 

NSR rules (specifically, sections 0, 12, 

and 58, as submitted and acted on in 

1999). See Hall v. EPA, 273 F.3d 1146 

(9th Cir. 2001). 

The court vacated our approval on the 

grounds that EPA did not have an 

adequate basis under section 110(l) of 

the Act to conclude that substitution 

(i.e., replacement or supercession) of the 

pre-existing NSR SIP rules (sections 1, 

11, and 15) with the new NSR rules 

(sections 0, 12, and 58) would not 

interfere with attainment of the NAAQS 

for carbon monoxide (CO) and 

particulate matter with an aerodynamic 

diameter less than or equal to a nominal 

10 micrometers (PM–10) (i.e., the two 

pollutants for which a sub-region of 

Clark County, Las Vegas Valley, is 

designated nonattainment) by the 

applicable attainment deadlines. In 

recognition of this ruling, we are 

proposing to delete and reserve the 

paragraphs in section 1470 

(‘‘Identification of plan’’) of 40 CFR part 

52, subpart DD (Nevada) that codified 

our 1999 approval (i.e., 40 CFR 

52.1470(c)(37) and (38)) to clarify that, 

until the effective date of EPA’s final 

approval of the submitted NSR rules 

into the SIP, sections 1, 11, and 15 (as 

approved by EPA in 1981 and 1982) 

represent the applicable SIP NSR rules 

in Clark County.

Subsequently, Clark County adopted 

revised NSR rules (then contained in 

local sections 0, 11, 12, 58, and 59) on 

December 4, 2001. This version of the 

Clark County NSR rules, excluding 

section 11, was submitted to EPA by 

NDEP by letter dated February 25, 2003. 

We did not take action on that 

submittal, which has been superceded 

by DAQM’s adoption of additional 

revisions to the Clark County NSR rules 

(now expanded to include section 52, 

subsection 52.8, as well as sections 0, 

11, 12, 58 and 59) on October 7, 2003 

and NDEP’s re-submittal to EPA dated 

October 23, 2003. In this notice, we refer 

to this latest submittal of the DAQM 

NSR rules (sections 0, 11, 12, 52.8, 58, 

and 59) as the ‘‘DAQM NSR submittal.’’

While we can act on only the most 

recently submitted version, we have 

reviewed materials provided with 

previous submittals. The TSD provides 

additional background information on 

the various NSR SIP submittals for Clark 

County. 

EPA revised its federal regulations 

implementing Parts C and D of the CAA 

on December 31, 2002, and those 

revisions became effective on March 3, 

2003. Because Clark County had 

submitted a version of its revised NSR 

rules to us specifically in response to 

the court’s 2001 ruling in Hall v. EPA, 

EPA is now evaluating DAQM’s NSR 

submittal based on the federal NSR 

regulations that were in effect at the 

time of the ruling in Hall v. EPA (prior 

to December 31, 2002). This proposed 

rulemaking, therefore, does not establish 

any precedent for evaluating whether a 

proposed NSR SIP fulfills the 

requirements of the revised NSR 

regulations that were published 

December 31, 2002. The evaluation in 

this proposed rulemaking of DAQM’s 

NSR submittal is limited to whether the 

submittal meets the requirements of the 

federal NSR regulations as they existed 

at the time of the ruling in Hall v. EPA,

prior to revision on December 31, 2002. 

There is no previous version of 

Nevada Administrative Code (NAC) 

445B.22083 (Construction, major 

modification or relocation of plants to 

generate electricity using steam 

produced by burning of fossil fuels) 

approved, or submitted for approval, 

into the Nevada SIP. 

Submitted DAQM sections 0, 11, 12, 

52.8, 58, and 59 represent a 

comprehensive revision to Clark 

County’s NSR program and are intended 

to satisfy the requirements under both 

part C (prevention of significant 

deterioration)(PSD) and part D 

(nonattainment new source review) of 

31058 Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 

title I of the Act as those parts relate to 

permitting of major new sources or 

major modifications as well as provide 

for a minor source permitting program 

as required under section 110(a)(2)(C) of 

the Act. Submitted DAQM section 0 

(Definitions) consists of definitions of 

all terms relating to new sources and 

modifications to existing sources of air 

pollution. As is the case for existing SIP 

section 1 (Definitions), DAQM section 0 

also contains numerous definitions of 

terms used in prohibitory rules not 

related to NSR. Some of these 

prohibitory rules are already approved 

into the SIP (e.g., SIP section 53 

(Oxygenated Gasoline Program)) while 

others are expected to be approved into 

the SIP in the near future (e.g., DAQM 

section 54 (Cleaner Burning Gasoline) 

and DAQM sections 90 through 94 

(related to various fugitive dust 

sources)). Therefore, with respect to 

submitted DAQM section 0, we are 

proposing to approve the entire rule, not 

just those definitions related to NSR, 

however, as explained later in this 

notice, we are proposing to retain in the 

SIP certain definitions from existing SIP 

section 1 because they are needed for 

various existing SIP rules unaffected by 

this action. 

DAQM section 11 sets forth the 

current national ambient air quality 

standards (NAAQS). DAQM section 12 

sets forth the source permitting 

requirements, including those related to 

applicability, control technology (i.e.,

Lowest Achievable Emission Rate 

(LAER) or Best Available Control 

Technology (BACT)), offsets, and public 

notice. DAQM subsection 52.8 contains 

offset requirements for new or modified 

gasoline dispensing facilities whose 

annual through-put is more than 3.6 

million gallons of gasoline per year. 

DAQM section 58 establishes 

procedures for the creation, banking, 

and use of emission reduction credits, 

and DAQM section 59 establishes offset 

requirements for new or modified 

sources. NAC 445B.22083 is a State 

regulation prohibiting the construction 

of major new or modified sources under 

exclusive State jurisdiction in the 

nonattainment areas within Clark 

County. The TSD has more information 

about these rules. 

B. EPA’s Evaluation and Action 

SIP Revision Procedural Requirements 

The Act requires States to observe 

certain procedural requirements in 

developing implementation plans and 

plan revisions for submission to EPA. 

Sections 110(a)(2) and 110(l) of the Act 

provide that each implementation plan 

or revision submitted by a State must be 

adopted after reasonable notice and 

public hearing. Section 172(c)(7) of the 

Act provides that plan provisions for 

nonattainment areas shall meet the 

applicable provisions of section 

110(a)(2). 

DAQM held a public hearing on 

October 7, 2003 to entertain public 

comment on revisions to the following 

local air pollution regulations: sections 

0, 11, 12, 52.8, 58 and 59. Notice for that 

hearing was provided by advertisement 

in a newspaper of general circulation in 

the applicable area on three separate 

days in September 2003. On October 7, 

2003, the amended rules were adopted 

by DAQM and submitted to the State. 

On October 23, NDEP submitted the 

amended rules to EPA for approval as a 

revision to the Nevada SIP. We find that 

this process satisfies the procedural 

requirements under sections 110(a)(2), 

110(l) and 172(c)(7) of the Act. 

With respect to NAC 445B.22083, the 

Nevada SEC held a public hearing on 

March 3, 1994 to entertain public 

comment on the submitted rule. Notice 

for that hearing was provided by 

advertisement in a newspaper of general 

circulation in the applicable area on 

three separate days in February 1994. 

On March 3, 1994, the Nevada SEC 

adopted the submitted rule, which was 

subsequently renumbered in 2002 to its 

current codification as NAC 

445B.22083. On November 20, 2003, 

NDEP submitted NAC 445B.22083 to 

EPA for approval as a revision to the 

Nevada SIP. We find that this process 

satisfies the procedural requirements 

under sections 110(a)(2), 110(l), and 

172(c)(7) of the Act. 

General Nonattainment and PSD 

Requirements 

We have evaluated DAQM’s NSR SIP 

submittal described above against the 

applicable requirements of section 110 

and parts C and D of (title I) of the Act 

and the implementing regulations at 40 

CFR 51.160 through 51.166 (July 1, 

2002). We also relied upon the 

following materials in the review of this 

submittal: General Preamble for the 

Implementation of Title I of the Clean 

Air Act Amendments of 1990 (see 57 FR 

13498, April 16, 1992), EPA’s Emission 

Offset Interpretive Ruling (40 CFR part 

51, appendix S), and EPA’s policy 

document entitled, ‘‘Improving Air 

Quality with Economic Incentive 

Programs,’’ that was published in 

January 2001. 

We note that, on December 31, 2002, 

EPA published a final notice revising 

regulations governing NSR programs 

(‘‘Federal NSR regulations’’) mandated 

by parts C and D of title I of the Act. 

See 67 FR 80186. These revisions 

include changes in the NSR 

applicability requirements for 

modifications to allow sources more 

flexibility to respond to rapidly 

changing markets and to plan for future 

investments in pollution control and 

prevention technologies. We selected 

March 3, 2003 as the effective date for 

our revision to the Federal NSR 

regulations. Normally, we would be 

evaluating the Clark County NSR SIP 

submittal on the basis of the current 

Federal NSR regulations, which would 

include these most recent revisions, but 

in light of the unusual circumstances 

surrounding EPA’s review process for 

the Clark County NSR rules, i.e., court 

vacature of a fully-approved set of NSR 

rules, we have not evaluated the 

submitted NSR rules for consistency 

with the revised Federal NSR 

regulations but have evaluated them 

instead 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. Like other State and local 

agencies, Clark County must adopt and 

submit revisions to its SIP-approved 

NSR rules implementing the minimum 

program requirements set forth in the 

revised Federal NSR regulations no later 

than January 2, 2006. See 67 FR 80186, 

at 80240 (December 31, 2002). Given 

this approach to our evaluation of the 

DAQM NSR submittal, the reader 

should refer to the 2002 version of 40 

CFR parts 51 and 52 (revised as of July 

1, 2002) where citations are made herein 

to the those parts of the CFR. 

Nonattainment NSR Requirements 

The Act requires all States with 

nonattainment areas to submit, by 

November 15, 1992, nonattainment NSR 

provisions that comply with part D (of 

title I) of the Act and the related 

implementing regulations. The Las 

Vegas Valley (hydrographic area #212), 

a sub-region within Clark County, was 

designated as a nonattainment area for 

both the carbon monoxide (CO) and 

particulate matter (PM–10) NAAQS 

under the Clean Air Act Amendments of 

1990, and thus, the nonattainment NSR 

requirements apply to that area. Las 

Vegas Valley is currently classified as a 

‘‘serious’’ nonattainment area for both 

the CO and PM–10 NAAQS. See 40 CFR 

81.329.

First, it should be noted that, 

pursuant to State law, the State of 

Nevada, not a local air or health district, 

has jurisdiction over plants which 

generate electricity by using steam 

produced by the burning of fossil fuel 

within the State of Nevada. The 

applicable State law, now codified in 

Nevada Revised Statutes (NRS) 

Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 31059

445B.500, was approved by EPA as a 

SIP revision in 1980 as NRS 445.546(4). 

See 45 FR 46384 (July 10, 1980). Thus, 

within Clark County, the State, not 

DAQM, has jurisdiction over such 

plants that are located, or that will be 

constructed, in that county (including 

the nonattainment area). This exclusion 

is reflected in submitted DAQM section 

12, subsection 12.1.3.2. 

The Nevada State Environmental 

Commission (SEC), the administrative 

body responsible for the air quality 

regulations implemented by NDEP, has 

not adopted a preconstruction permit 

program that complies with part D of 

the Act (i.e., Nonattainment NSR) for the 

nonattainment area within Clark 

County. Normally, because NDEP has 

jurisdiction over a particular category of 

stationary sources in a nonattainment 

area (i.e., Las Vegas Valley), the State 

would be required to adopt and submit 

a Nonattainment NSR program for new 

major sources or major modifications 

within the applicable source category in 

the nonattainment area. However, EPA 

is not requiring the State to submit 

Nonattainment NSR rules for Las Vegas 

Valley because the Nevada SEC adopted 

a regulation (NAC 445B.22083) that 

prohibits new power plants or major 

modifications to existing power plants 

under State jurisdiction within the Las 

Vegas Valley nonattainment area, and 

NDEP has submitted that regulation to 

EPA as a revision to the SIP. We 

propose to approve this regulation into 

the Nevada SIP to resolve the regulatory 

gap that would otherwise exist in 

connection with NSR for sources under 

NDEP jurisdiction within the 

nonattainment area of Clark County. 

With respect to the DAQM NSR 

submittal, we have concluded that it 

meets the applicable Nonattainment 

NSR requirements on the basis of the 

following findings: 

1. The DAQM NSR submittal provides 

for calculation of emissions offsets 

based on the same emissions baseline 

used in the demonstration of reasonable 

further progress as required by section 

173(a)(1)(A) of the Act (see DAQM 

section 0, ‘‘emission reduction credit’’

and ‘‘baseline emissions’’), provides for 

emissions offsets to be obtained when 

the construction permit for a new or 

modified source is issued and to be in 

effect by the time the new or modified 

source commences operation as 

required by section 173(c)(1) of the Act 

(see DAQM section 59, subsection 

59.4.2.6), provides for emissions 

increases from new major sources or 

major modifications to be offset by real 

reductions in actual emissions as 

required by section 173(c)(1) of the Act 

(see DAQM section 0, ‘‘emission 

reduction credit (ERC),’’ and specifically 

paragraph (b) of that definition: 

‘‘Section 58 emission reduction credit’’, 

and DAQM section 59, subsection 

59.1.5), prohibits emissions reductions 

otherwise required by the Act from 

being used for NSR offset purposes as 

required by section 173(c)(2) of the Act 

(see DAQM section 0, ‘‘surplus,’’ and 

DAQM section 59, subsection 59.4.2.1), 

and provides for appropriate limitations 

on ‘‘prior shutdown’’ emission 

reduction credits as required in 40 CFR 

51.165(a)(3)(ii)(C) (see DAQM section 

58, subsection 58.3.2.5.3). 

2. The DAQM NSR submittal provides 

for an analysis of alternative sites, sizes, 

production processes, and 

environmental control techniques as a 

prerequisite to issuing construction 

permits to new major sources or major 

modifications of nonattainment 

pollutants as required by section 

173(a)(5) of the Act (see DAQM section 

12, subsection 12.1.4.1(k)), provides for 

a definition of ‘‘stationary source’’ that 

includes certain internal combustion 

engines as required by section 302(z) of 

the Act (see DAQM section 0, 

‘‘stationary source’’), and provides for a 

demonstration that all other major 

stationary sources under the same 

ownership as the proposed source are in 

compliance with the Act as required by 

section 173(a)(3) of the Act (see DAQM 

section 12, subsection 12.8.2(b)). 

3. The DAQM NSR submittal provides 

for opportunities for, and due 

consideration of, public comment as 

required by 40 CFR 51.161 and provides 

for substantive requirements for new or 

modified minor sources as required in 

40 CFR 51.160 through 51.164 (see the 

pollutant-specific requirements in 

DAQM section 12, subsection 12.2 and 

the notice and public hearing 

requirements in DAQM section 12, 

subsections 12.3.2, 12.3.3, and 12.3.4). 

4. The DAQM NSR submittal provides 

for appropriate stack height limitations 

as required in 40 CFR 51.118(a) (see

DAQM section 12, subsection 12.5.4), 

provides for appropriate review of a 

source or modification which becomes 

major due to a relaxation in a federallyenforceable limit as required in 40 CFR 

51.165(a)(5)(ii) (see DAQM section 0, 

‘‘major modification’’ and ‘‘stationary 

source’’), provides for additional 

requirements for any new major source 

or major modification that may have an 

impact on visibility in any mandatory 

Class I Federal Area as required in 40 

CFR 51.307(b)(2) (see DAQM section 12, 

subsection 12.12), provides for 

appropriate consideration of fugitive 

emissions as required in 40 CFR 

51.165(a)(1)(iv)(C) (see DAQM section 0, 

paragraph (b)(1) under ‘‘stationary 

source’’), and provides for application of 

the Lowest Achievable Emission Rate 

(LAER) on all new major sources and 

major modifications of nonattainment 

pollutants as required in section 

173(a)(2) of the Act (see DAQM section 

12, subsections 12.2.2.2, 12.2.4.2, and 

12.2.23.2 for PM–10, and subsections 

12.2.7.3 and 12.2.9.3 for CO). 

5. The DAQM NSR submittal provides 

for, as required under subpart 3 of part 

D of title I of the Act, appropriate 

thresholds for major sources and major 

modifications in ‘‘serious’’ CO 

nonattainment areas (see DAQM section 

0, ‘‘stationary source’’ and ‘‘major 

modification’’) in which stationary 

sources are not significant contributors 

to ambient CO levels (see EPA’s 

proposed finding related to the impact 

of stationary sources on ambient CO 

levels in Las Vegas Valley in 68 FR 

4141, at 4154 (January 28, 2003)), and 

provides for an appropriate offset ratio 

(see DAQM section 59, subsection 

59.1.4, table 59.1.2). 

6. The DAQM NSR submittal provides 

for, as required under subpart 4 of part 

D of title I of the Act, appropriate 

thresholds for major sources and major 

modifications in ‘‘serious’’ PM–10 

nonattainment areas (see DAQM section 

0, ‘‘stationary source’’ and ‘‘major 

modification’’) in which PM–10 

precursors (e.g., oxides of nitrogen, 

sulfur dioxide, and volatile organic 

compounds) do not contribute 

significantly to PM–10 levels which 

exceed the standards in the area (see

EPA’s proposed finding related to the 

impact of PM–10 precursors in Las 

Vegas Valley in 68 FR 2954, at 2958 

(January 22, 2003)), and provides for an 

appropriate offset ratio (see DAQM 

section 59, subsection 59.1.4, table 

59.1.2). 

The TSD provides additional 

information on our evaluation of the 

DAQM NSR submittal relative to 

Nonattainment NSR requirements. 

PSD NSR Requirements

Part C of title I of the Act contains the 

provisions, including preconstruction 

permit requirements for new major 

sources or major modifications, for the 

prevention of significant deterioration 

(PSD) of air quality in areas designated 

as ‘‘attainment’’ or ‘‘unclassifiable’’ for 

the NAAQS. EPA’s regulations for PSD 

permit programs are found in 40 CFR 

51.166 and 40 CFR 52.21. Except for CO 

and PM–10 in Las Vegas Valley 

(hydrographic area #212), Clark County 

is designated as ‘‘attainment’’ or 

‘‘unclassifiable’’ for the NAAQS. See 40 

CFR 81.329. 

EPA offers States (and local air 

districts) two mechanisms by which to 

31060 Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 

administer PSD permitting programs. 

First of all, EPA may delegate the PSD 

permitting authority of 40 CFR 52.21 to 

a State or air district. For instance, EPA 

has provided a partial delegation of 

authority to NDEP to administer the 

Federal PSD program (set forth in 40 

CFR 52.21). See 68 FR 52837 

(September 8, 2003). Thus, NDEP and 

EPA now share responsibility for 

administering the PSD program as it 

relates to major new, or major 

modifications at, plants which generate 

electricity by using steam produced by 

the burning of fossil fuel in Clark 

County (note that, in the nonattainment 

portion of Clark County (Las Vegas 

Valley), such new or modified plants are 

prohibited under NAC 445B.22083). 

Alternatively, a State or air district 

may develop its own PSD program 

meeting the requirements of 40 CFR 

51.166, and submit these rules for 

inclusion in the applicable SIP. The 

DAQM NSR submittal has been 

submitted for EPA approval under 40 

CFR 51.166 as well as the 

nonattainment NSR provisions 

discussed in the previous subsection of 

this notice. With respect to the DAQM 

NSR submittal, we have concluded that 

it meets the applicable PSD NSR 

requirements on the basis of the 

following findings: 

1. The DAQM NSR submittal provides 

for implementation of best available 

control technology (BACT) for new 

major sources or major modifications as 

required in section 40 CFR 51.166(j) (see

DAQM section 12, subsections 12.2.3.2, 

12.2.4.2, and 12.2.5.2 (PM–10); 

subsections 12.2.8.2, 12.2.9.3, and 

12.2.10.2 (CO); subsections 12.2.11.2, 

12.2.12.3, and 12.2.13.2 (volatile organic 

compounds (VOC)); subsections 

12.2.14.4 and 12.2.15.2 (oxides of 

nitrogen (NOX)); and subsections 

12.2.16.2 (sulfur dioxide (SO2)), 

12.2.17.2 (lead (Pb)), and 12.2.19.7 (noncriteria pollutants subject to PSD)). 

2. The DAQM NSR submittal provides 

for an appropriate air quality analysis, 

including pre-application air monitoring 

and post-construction monitoring, as 

required in 40 CFR 51.166(m) (see

DAQM section 12, subsections 12.2.4.4, 

12.2.4.5, 12.2.5.4, and 12.2.5.5 (PM–10); 

subsections 12.2.9.2, 12.2.10.4, and 

12.2.10.5 (CO); subsections 12.2.12.2, 

12.2.13.4, and 12.2.13.5 (VOC); 

subsections 12.2.14.3, 12.2.15.4 and 

12.2.15.5 (NOX); subsections 12.2.16.4 

and 12.2.16.5 (SO2); subsections 

12.2.17.4 and 12.2.17.5 (Lead); 

subsections 12.2.19.1 and 12.1.19.2 

(non-criteria PSD pollutants; 

subsections 12.5.5 (PSD monitoring 

significance levels), 12.6.1 (preconstruction ambient air monitoring 

requirements), and 12.6.2 (postconstruction ambient air monitoring 

requirements)). 

3. The DAQM NSR submittal 

establishes the appropriate maximum 

allowable ambient air increments (see

DAQM section 12, subsections 12.2.3.5, 

12.2.4.6, and 12.2.5.6 (PM–10); 

subsections 12.2.14.3 and 12.2.15.6 

(NOX); subsection 12.2.16.6 (SO2)) and 

ambient air ceilings (see DAQM section 

12, subsections 12.2.3.5(b), 12.2.4.6(c), 

and 12.2.5.6(c) (PM–10); subsections 

12.2.9.2 and 12.2.10.4(c) (CO); 

subsections 12.2.12.2 and 12.2.13.4(b) 

(VOC); subsections 12.2.14.3 and 

12.2.15.6(c) (NOX); subsections 

12.2.16.6(c) (SO2) and 12.2.17.4 (Lead)) 

as required in 40 CFR 51.166(c) and (d). 

DAQM implements the ambient air 

ceilings by reference to submitted 

DAQM section 11, which contains the 

current NAAQS. 

4. The DAQM NSR submittal provides 

for completion of appropriate additional 

impact analyses related to visibility, 

soils, and vegetation and appropriate 

additional air quality impact analysis 

related to general land use development 

as required in 40 CFR 51.166(o) (see

DAQM section 12, subsections 12.2.4.7 

and 12.2.5.7 (PM–10); subsections 

12.2.9.2 and 12.2.10.6 (CO); subsections 

12.2.12.2 and 12.2.13.6 (VOC); 

subsections 12.2.14.3 and 12.2.15.7 

(NOX); and subsections 12.2.16.7 (SO2), 

12.2.17.6 (Lead), and 12.2.19.3 (noncriteria PSD pollutants)). 

5. The DAQM NSR submittal provides 

for the appropriate Class II PSD 

classification for all areas in Clark 

County based on their adopted 

maximum allowable ambient air 

increments discussed above. 

6. The DAQM NSR submittal provides 

for protection of air quality related 

values (including visibility) in Class I 

areas as required in 40 CFR 51.166(p) 

(see DAQM section 12, subsections 

12.2.4.6(b), 12.2.4.8, 12.2.5.6(b), and 

12.2.5.8 (PM–10); subsections 12.2.9.2 

and 12.2.10.7 (CO); subsections 

12.2.12.2 and 12.2.13.7 (VOC); 

subsections 12.2.14.3, 12.2.15.6(b), and 

12.2.15.8 (NOX); subsections 

12.2.16.6(b) and 12.2.16.8 (SO2); 

subsection 12.2.17.7 (Lead); subsection 

12.3.1.2(b) (notification of the Federal 

Land Manager (FLM) or other 

appropriate Federal official); subsection 

12.3.4.4 (framework for coordination 

between DAQM and the FLM or other 

appropriate Federal official concerning 

potential impacts to Class I areas)). 

7. The DAQM NSR submittal provides 

for agency and public participation as 

required in 40 CFR 51.166(p)(1) and 

51.166(q) (see DAQM section 12, 

subsections 12.3.1.2(b), 12.3.2, and 

12.4.4)). 

The TSD provides additional 

information on our evaluation of the 

DAQM NSR submittal relative to PSD 

NSR requirements. 

Section 110(l) of the Act 

Section 110(l) of the Act prohibits 

EPA from approving any revision of a 

SIP if the revision would interfere with 

any applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the Act. For attainment 

pollutants in attainment areas, our 

evaluation considers first whether a 

submitted SIP revision would be as 

stringent as the provision in the existing 

applicable implementation plan that it 

would supercede. If so, then no further 

analysis is generally required. But, even 

if we cannot conclude that a SIP 

revision is as stringent as the 

corresponding provision in the 

applicable implementation plan, we 

may still approve the revision so long as 

it can be shown that the revision would 

not interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

applicable requirement of the Act. 

For nonattainment pollutants in 

nonattainment areas, one court has 

ruled that our evaluation must extend 

beyond the issue of whether the 

submitted SIP revision is as stringent as 

the existing SIP provision that it would 

supercede and consider the submitted 

SIP revision in light of current ambient 

air quality and nonattainment planning 

requirements within the applicable 

nonattainment area. See Hall v. EPA, 

273 F.3d 1146 (9th Cir. 2001). No other 

court has yet decided this issue. In 

nonattainment areas too, we may 

approve SIP relaxations under section 

110(l) so long as they would not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

applicable requirement of the Act (such 

as section 193 of the Act, discussed in 

the next section of this TSD). 

Based on the detailed pollutant-bypollutant evaluation we provide in the 

TSD (and summarize herein), which 

includes an evaluation of the 

incremental SIP strengthenings and 

relaxations in the context of pollutant 

emission sources, trends, air quality 

conditions, and planning requirements, 

we conclude that approval of the DAQM 

NSR submittal (and thereby replacement 

or supercession of the existing SIP NSR 

rules) would not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 31061

progress, or an other applicable 

requirement of the Act. 

Most of the significant differences 

between the two NSR programs (SIPapproved versus the DAQM NSR 

submittal) are pollutant-specific rather 

than of general applicability. There are, 

however, two differences of general 

applicability that warrant discussion 

here: the emissions test used to define 

a stationary source modification and the 

basis for the minor (referred to as ‘‘nonmajor’’ under the submitted DAQM NSR 

program) source baseline date. 

First, the DAQM NSR submittal 

would replace a ‘‘potential-to-potential’’

test with an ‘‘actual-to-potential’’ test for 

evaluating proposed stationary source 

modifications (see existing SIP section 

1, ‘‘modification’’ (1.52)). As a result, 

the existing SIP rule fails to require NSR 

review for modifications at major 

sources, which involve a significant net 

emissions increase in actual emissions, 

but no increase in the potential to emit. 

In contrast, the DAQM NSR submittal 

provides for the more protective 

‘‘actual-to-potential’’ test for evaluating 

proposed modifications at major 

sources. This would represent a general 

strengthening of the NSR program 

compared to the existing SIP NSR 

program. For additional Agency 

discussion on the relative stringency of 

these two different tests for determining 

applicability of requirements for 

modifications, see our final rule on 

recent NSR revisions at 67 FR 80186 at 

80204–80206 (December 31, 2002).

Second, through the definition of 

‘‘baseline concentration’’ in SIP section 

1, the existing SIP established a uniform 

minor source baseline date of August 7, 

1977 in the various PSD baseline areas 

(which derive from the areas designated 

as attainment or unclassifiable by EPA 

under section 107(d) of the Act) within 

Clark County. This definition is 

consistent with EPA’s 1978 final PSD 

regulations. However, the court in the 

Alabama Power decision set aside EPA’s 

definition (from the 1978 PSD 

regulations) in favor of the statutory 

definition of the term (see section 169(4) 

of the Act), which links the baseline 

concentration to the ambient 

concentration that exists at the time of 

the first PSD application in a given area. 

See Alabama Power Co. v. Costle, 636 

F.2d 323, at 375–376 (D.C. Cir. 1979). 

EPA’s PSD regulations have long since 

been revised to reflect the court’s 

holding (see 40 CFR 51.166(b)(13)). 

While the definition of ‘‘baseline 

concentration’’ in DAQM section 0 is 

consistent with the current EPA 

definition, EPA approval of this 

definition to supercede the SIP 

definition would have the effect of 

untriggering (completely) the minor 

source baseline dates for PM and SO2 in 

those section 107(d) attainment or 

unclassifiable areas in which no source 

or modification has submitted a 

complete PSD application or would 

have a significant impact. Examples of 

such areas include Frenchman Flat 

(hydrographic area (HA) 160), Indian 

Springs Valley (HA 161), and Pahrump 

Valley (HA 162). 

For those areas in which a source or 

modification has submitted a complete 

PSD application or would have a 

significant impact, EPA approval would 

have the effect of establishing a new 

minor source baseline date for PM or 

SO2 or both, i.e., from August 7, 1977 to 

various different (more recent) dates in 

the applicable areas. Examples include 

Las Vegas Valley (HA 212), which 

would have a new minor source 

baseline date for SO2 of April 25, 1996 

(triggered by a complete PSD 

application submitted by TIMET) and 

Black Mountains (HA 215), which 

would have a new minor source 

baseline date for PM of December 14, 

1990 (triggered by a complete PSD 

application submitted by NCA #2). 

Arguably, untriggering (or reestablishing new, more recent) minor 

source baseline dates represents a 

relaxation because a greater level of air 

quality degradation would be allowed 

compared to a regulatory scheme in 

which the baseline date and 

concentration is set uniformily for all 

areas at August 7, 1977. However, this 

particular type of change aligns the 

Clark County NSR program with the 

statute (see section 169(4) of the Act) 

and thus, can also be viewed as a 

correction rather than as a relaxation. 

We conclude, therefore, that approval of 

the DAQM NSR submittal would serve 

the Congressional purposes described in 

the Alabama Power decision, and that 

the untriggering (or re-setting) of PSD 

minor source baseline dates in Clark 

County under these circumstances 

would be consistent with section 110(l) 

of the Act. Section 110(l) prohibits 

interference with any applicable 

requirement of the Act, and in this case 

the SIP revision will bring the Clark 

County program in line with the 

requirements of the Act as interpreted 

by the court. Thus, EPA concludes that 

approval is consistent with section 

110(l). We also note that our approval of 

the DAQM NSR submittal would have 

little practical effect on the PSD 

program as it is being administered 

currently by DAQM since DAQM has 

not been administering the program 

under the assumption that there is a 

uniform county-wide minor source 

baseline date (i.e., as provided for in the 

existing SIP NSR program) but rather 

under the assumption that the minor 

source baseline date is triggered on an 

area-by-area basis by the submittal of 

the first complete PSD application in a 

given area. 

Carbon Monoxide (CO). As noted 

previously, a sub-region within Clark 

County, the Las Vegas Valley 

(hydrographic area #212), is designated 

as a ‘‘serious’’ nonattainment area for 

the CO NAAQS. Clark County has 

developed and adopted a ‘‘serious area’’

attainment plan which relies primarily 

on the Federal motor vehicle control 

program, and State and local wintertime 

gasoline specifications (such as DAQM 

sections 53 (Oxygenated Gasoline 

Program) and 54 (Cleaner Burning 

Gasoline), and an ‘‘enhanced’’ motor 

vehicle inspection and maintenance 

program to demonstrate attainment of 

the CO NAAQS by the applicable 

attainment date (year 2000). We have 

proposed approval of this plan. See 68 

FR 4141 (January 28, 2003) for our 

proposed approval of the Las Vegas 

Valley ‘‘serious area’’ CO attainment 

plan. The rest of the county is 

designated unclassifiable/attainment for 

the CO NAAQS. See 40 CFR 81.329. 

Approval of the DAQM NSR submittal 

(and thereby replacement or 

supercession of the existing SIP NSR 

rules) would represent an incremental 

relaxation in the control technology 

requirement for new or modified nonmajor CO sources within Las Vegas 

Valley (i.e., from LAER to BACT), but 

would also represent an incremental 

strengthening by imposing more 

stringent offset requirements. The offset 

requirements would be strengthened in 

two respects: the threshold for the offset 

requirement would be lowered to 70 

tons per year (tpy) from 100 tpy and the 

offset ratio would be increased to 2:1 

from 1:1. Given (1) that the more 

inclusive ‘‘actual-to-potential test’’

would replace the ‘‘potential-topotential’’ test for evaluating source 

modifications; (2) that the incremental 

relaxation in the control technology 

requirement would replace the highest 

level of control (LAER) with the next 

highest (BACT) level of control and this 

incremental difference is offset by an 

incremental strengthening in the offset 

requirement; (3) that DAQM section 12 

prohibits new or modified CO stationary 

sources with potentials to emit (PTEs) 

greater than 50 tpy in the downtown CO 

‘‘hot spot’’ area; (4) that the Las Vegas 

Valley ‘‘serious area’’ CO attainment 

plan assumes growth in non-major 

stationary CO sources (i.e., does not 

assume that the CO emissions from nonmajor sources would be offset), 

concludes that stationary sources are 

31062 Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 

not a significant contributor to CO levels 

in the valley, and does not rely on 

stationary source controls to 

demonstrate attainment; and (5) that 

EPA has proposed approval of the CO 

attainment demonstration based on onroad motor vehicle controls, we have 

concluded that the supercession of the 

existing SIP NSR program by the 

submitted NSR program would not 

interfere with the CO attainment 

strategy or any other applicable 

requirement of the Act. 

Particulate Matter (PM–10). As noted 

previously, Las Vegas Valley 

(hydrographic area #212), is designated 

as a ‘‘serious’’ nonattainment area for 

the PM–10 NAAQS. Clark County has 

developed and adopted a ‘‘serious area’’

attainment plan which relies primarily 

on prohibitory rules regulating fugitive 

dust sources, including vehicle travel 

over paved and unpaved roads and 

construction activity, to demonstrate 

attainment of the PM–10 NAAQS by 

year 2006. We have proposed approval 

of this plan. See 68 FR 2954 (January 22, 

2003) for our proposed approval of the 

Las Vegas Valley ‘‘serious area’’ PM–10 

attainment plan. The rest of the county 

is designated on a hydrographic area 

basis as ‘‘unclassifiable’’ for the PM–10 

NAAQS, see 40 CFR 81.329, but PM–10 

NAAQS violations have been recorded 

in Apex Valley, which borders Las 

Vegas Valley to the north.

In general, approval of the DAQM 

NSR submittal would strengthen the SIP 

by updating the PM increments in terms 

of PM–10 (rather than total suspended 

particulate (TSP)). EPA replaced the PM 

NAAQS, measured as TSP, with new 

PM NAAQS, measured as PM–10, in 

1987. See 52 FR 24634 (July 1, 1987). 

With respect to Las Vegas Valley, 

approval of the DAQM NSR submittal 

(and thereby replacement or 

supercession of the existing SIP NSR 

rules) would represent an incremental 

relaxation in the control technology 

requirement for new or modified nonmajor PM–10 sources (i.e., from the 

most stringent level of control, LAER to 

the next highest level of control, BACT), 

and in the offset requirement (from 

‘‘federal’’ to ‘‘local’’ offsets) for new or 

modified sources with PTEs from 15 tpy 

(as adjusted from 25 tons TSP) to 70 tpy, 

but it would also represent an 

incremental strengthening by 

establishing a more stringent offset ratio 

(2:1) to replace the current ratio (1:1). 

Given (1) that the more inclusive 

‘‘actual-to-potential test’’ would replace 

the ‘‘potential-to-potential test’’ for 

evaluating source modifications; (2) that 

the offsetting effects of these changes to 

the NSR program would ensure a 

negligible effect on PM–10 emissions; 

(3) that the submitted NSR program 

conforms to that PM–10 attainment plan 

in that the plan assumes BACT- rather 

than LAER-level of control for new or 

modified non-major sources in Las 

Vegas; (4) that the Las Vegas Valley 

‘‘serious area’’ PM–10 attainment plan 

concludes that stationary sources are 

not a significant contributor to PM–10 

NAAQS violations in the valley, and 

does not rely on stationary source 

controls to demonstrate attainment; and 

(5) that EPA has proposed approval of 

the demonstration based on fugitive 

dust controls, we have concluded that 

the supercession of the existing SIP NSR 

program by the submitted NSR program 

would not interfere with the PM–10 

attainment strategy or any other 

applicable requirement of the Act. 

With respect to Apex Valley, the 

incremental relaxation in the control 

technology requirement (from LAER to 

BACT) and the elimination of any offset 

requirement, when viewed in isolation, 

could appear to potentially interfere 

with attainment of the PM–10 NAAQS 

in that area given the monitored 

incidence of PM–10 NAAQS violations 

in the area. However, EPA recognizes 

that Clark County is in the process of 

extending additional regulatory controls 

to existing PM–10 sources in the Apex 

Valley and to developing a Natural 

Events Action plan to address those 

PM–10 NAAQS violations that result 

from high wind events that occur there, 

and in that context, EPA believes that 

the incremental relaxation in 

requirements for new or modified 

stationary sources would not interfere 

with attainment of the PM–10 NAAQS 

in Apex Valley since the attainment 

strategy, by necessity, will focus on 

existing sources and high-wind-driven 

fugitive dust. 

Ozone. Las Vegas Valley 

(hydrographic area #212) was 

designated as a nonattainment area for 

the ozone NAAQS in 1978. Pursuant to 

the Clean Air Act Amendments of 1977, 

Clark County developed and adopted 

the Las Vegas Valley Air Quality 

Implementation Plan in 1978 as an 

attainment plan for the ozone NAAQS. 

This plan was revised in 1980 and then 

again in 1984. The attainment strategy 

relied primarily on the Federal motor 

vehicle emission control program, the 

NSR program (i.e., existing SIP sections 

1, 11, and 15), and various stationary 

source prohibitory rules (including SIP 

sections 33, 50, 51, 52, and 60), which 

relate to sources of chlorine (found to be 

a significant ozone precursor in Las 

Vegas Valley) and VOC sources, such as 

petroleum product storage and 

handling. We approved these plan 

submittals at various times (see, e.g., 51 

FR 29923, August 21, 1986). Based on 

monitoring data documenting the 

necessary decrease in peak ozone 

concentrations, we redesignated Las 

Vegas Valley as ‘‘attainment’’ for the 

(one-hour) ozone NAAQS in 1986. See 

51 FR 41788 (November 19, 1986). Since 

then, 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 one-hour standard of 0.12 ppm. The 

current (one-hour) ozone NAAQS 

designation for Clark County is 

unclassifiable/attainment. See 40 CFR 

81.329. 

Approval of the DAQM NSR submittal 

(and thereby replacement or 

supercession of the existing SIP NSR 

rules) would represent an incremental 

relaxation in the control technology 

requirement for new or modified nonmajor VOC sources within Las Vegas 

Valley (i.e., from LAER to BACT), 

however, the DAQM NSR submittal 

extends LAER level of control to new or 

modified major VOC sources proposed 

for certain locations adjacent to, and 

generally upwind of Las Vegas Valley 

(i.e., Eldorado Valley and Ivanpah 

Valley. In these adjacent areas, the 

applicable control technology 

requirement under the existing SIP NSR 

rules is BACT. Given that the 1980’s-era 

ozone attainment strategy relies on 

several important VOC regulatory 

elements that would not be affected by 

our action on the NSR program, e.g., 

stationary source prohibitory SIP rules 

(i.e., SIP sections 33, 50, 51, 52, and 60) 

and motor vehicle tailpipe and fuel 

regulations promulgated by EPA under 

title II of the Act, and that the 

incremental relaxation in the control 

technology requirement for new or 

modified sources of VOC in Las Vegas 

Valley would replace the highest level 

of control (LAER) with the next highest 

level of control (BACT) and would be 

partially offset by an incremental 

strengthening in that requirement in 

upwind areas, we have concluded that 

the approval of the DAQM NSR 

submittal (and thereby replacement or 

supercession of the existing SIP NSR 

rules) would not interfere with 

continued attainment of the one-hour 

ozone NAAQS or any other applicable 

requirement of the Act. We note that 

Clark County has been designated as 

nonattainment for the eight-hour ozone 

NAAQS, which EPA established in 1997 

(62 FR 38856, July 19, 1997) and which 

will in time replace the existing (onehour) ozone NAAQS. 69 FR 23858, 

23919–23920 (April 30, 2004). 

Additional changes to the DAQM NSR 

program will be required on a schedule 

Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 31063

to be established by EPA in a final rule 

implementing the eight-hour ozone 

NAAQS. See 69 FR 23951, 23985–23986 

(April 30, 2004). 

Nitrogen Dioxide (NO2). Clark County 

is designated on a hydrographic area 

basis as unclassifiable/attainment for 

the NO2 NAAQS. See 40 CFR 81.329. 

Ambient NO2 concentrations are well 

below (approximately 50%) the 

applicable NAAQS. 

As a general matter, approval of the 

DAQM NSR submittal would strengthen 

the SIP by establishing NO2 PSD 

increments and requiring the related 

NO2 PSD increment consumption 

analysis for new major sources or major 

modifications in Clark County. Within 

Las Vegas Valley, approval of the 

DAQM NSR submittal (and thereby 

replacement or supercession of the 

existing SIP NSR rules) would relax the 

control technology requirement for new 

or modified sources of NOX (from LAER 

to BACT), but this relaxation would be 

offset by the special restrictions 

established in DAQM section 12 for new 

or modified NOX sources in the 

urbanized core of Las Vegas. From the 

standpoint of continued attainment of 

the NO2 NAAQS, while the net effect 

(negative or positive) of these offsetting 

regulatory changes is difficult to predict, 

it would not be expected to be 

significant given that the relaxed control 

technology requirement is from the 

highest level of control (LAER) to the 

next highest level of control (BACT) 

rather than an elimination of the control 

technology requirement completely and 

given that, as noted above, ambient NO2

concentrations are well below the 

applicable NAAQS. Thus, we have 

concluded that the supercession of the 

existing SIP NSR program by the 

submitted NSR program would not 

interfere with continued attainment of 

the NO2 NAAQS or any other applicable 

requirement of the Act.

Sulfur Dioxide (SO2). Clark County is 

designated on a hydrographic area basis 

as unclassifiable/attainment for the SO2

NAAQS. See 40 CFR 81.329. SO2

monitoring data collected in Las Vegas 

Valley in the early 1980’s indicate that 

the highest ambient concentrations were 

between 5% and 22% of the respective 

NAAQS depending upon the averaging 

period. Monitoring data from year 2002 

show little change in ambient SO2

concentrations relative to conditions in 

the early 1980’s. 

Approval of the DAQM NSR submittal 

(and thereby replacement or 

supercession of the existing SIP NSR 

rules) would represent an incremental 

relaxation in the control technology 

requirement for new or modified SO2

sources within Las Vegas Valley (i.e., 

from LAER to BACT) and an 

incremental relaxation in the ambient 

SO2 standards used in the impact 

analyses conducted as part of the permit 

application process for new or modified 

sources (comparing the SO2 ambient 

standards in existing SIP section 11 

with submitted DAQM section 11). 

From the standpoint of continued 

attainment of the SO2 NAAQS, EPA 

concludes that the incremental 

relaxation of the control technology 

requirement in Las Vegas Valley for new 

or modified sources of SO2 is not 

significant given that the relaxed 

requirement is from the highest level of 

control (LAER) to the next highest level 

of control (BACT) rather than an 

elimination of the control technology 

requirement completely and given that 

ambient SO2 concentrations continue to 

be well below the applicable NAAQS. 

Also, NDEP has jurisdiction over one of 

the principal sources of SO2 (coalburning power plants) in Clark County, 

and the control technology requirements 

for SO2 emissions from those sources 

are unaffected by this action. Finally, 

the incremental relaxation in SO2

ambient air quality standards used in 

the permit application evaluation 

process is consistent with continued 

attainment of the NAAQS since the 

revised ambient standards in submitted 

DAQM section 11 accurately reflect the 

current NAAQS for SO2. Thus, we have 

concluded that supercession of the 

existing SIP NSR program by the 

submitted NSR program would not 

interfere with continued attainment of 

the SO2 NAAQS or any other applicable 

requirement of the Act. 

Lead. EPA promulgated the NAAQS 

for lead (Pb) in 1978. See 43 FR 46246 

(October 5, 1978). Ambient lead levels 

collected in Las Vegas Valley during the 

late 1970’s were found to violate the 

NAAQS. To provide for the attainment 

and maintenance of the lead NAAQS in 

the valley, Clark County adopted the 

State Implementation Plan Revision for 

Ambient Lead in Las Vegas Valley, 

Clark County, Nevada (dated February 

11, 1980). EPA approved this plan as a 

SIP revision in 1982. See 47 FR 28374 

(June 30, 1982). This lead (Pb) 

attainment plan predicted attainment of 

the lead NAAQS prior to 1982 primarily 

based on the declining lead content of 

motor vehicle gasoline, and indeed, 

maximum quarterly concentrations were 

much less than the NAAQS by the mid1980’s. 

In general, the DAQM NSR submittal 

represents a strengthening of the SIP 

with respect to lead in those portions of 

Clark County that lie outside of Las 

Vegas Valley but an incremental 

relaxation of the SIP within Las Vegas 

Valley. However, from the standpoint of 

continued attainment of the lead 

NAAQS in Las Vegas Valley, the 

relaxation of certain NSR requirements 

for new or modified stationary sources 

of lead (de minimis exemptions, a BACT 

control technology requirement rather 

than LAER, elimination of offsets) 

would not interfere with continued 

attainment of the lead NAAQS nor any 

other requirement of the Act because the 

incremental relaxation of the control 

technology requirement is from the 

highest level of control (LAER) to the 

next highest level of control (BACT) 

rather than an elimination of the control 

technology requirement completely and 

because the DAQM NSR submittal 

continues to ensure that permits are not 

issued to new or modified sources that 

would cause a violation of the lead 

NAAQS (see DAQM section 12, 

subsection 12.2.17.4(c)). Moreover, the 

overwhelming influence of mobile 

sources to the historical lead NAAQS 

violations, which would be unaffected 

by approval of the DAQM NSR 

submittal, and the low background lead 

concentrations further ensure that 

supercession of the existing NSR SIP 

program with the submitted NSR SIP 

program would not interfere with 

continued attainment of the lead 

NAAQS or any other requirement of the 

Act. 

Section 193 of the Act 

Section 193 of the Act, which was 

added by Congress in the Clean Air Act 

Amendments of 1990, includes a 

savings clause which provides, in 

pertinent part: ‘‘No control requirement 

in effect, or required to be adopted by 

an order, settlement agreement, or plan 

in effect before November 15, 1990, in 

any area which is a nonattainment area 

for any air pollutant may be modified 

after November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant.’’ This 

section of the Act does not clearly apply 

to revisions in NSR programs, but we 

have evaluated the DAQM NSR 

submittal on the assumption that 

section 193 does apply. NSR program 

revisions are inherently difficult to 

evaluate with respect to changes in 

emissions reductions because NSR 

covers all types of stationary sources 

and provides for case-by-case 

evaluations of control technology 

requirements whether the applicable 

requirement is BACT or LAER (see 40 

CFR 51.166(b)(12) and 40 CFR 

51.165(a)(1)(xiii)). In the context of the 

DAQM NSR submittal, a determination 

of whether the submitted NSR program 

would provide for equivalent or greater 

31064 Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 

emission reductions relative to the 

existing SIP NSR program is further 

complicated by the comprehensive 

nature of the changes. The DAQM NSR 

submittal represents a wholesale 

revision affecting the substance, 

procedure, and format of the Clark 

County NSR program. Nevertheless, we 

can identify three parameters that most 

closely link to relative changes in 

emissions reductions from new or 

modified stationary sources: the test for 

evaluating source modifications, the 

control technology review, and the 

requirements for offsets, including offset 

thresholds, offset ratios, and the other 

specifications for creation and use of 

offsets. As explained below, relaxation 

in some of these parameters is offset by 

countervailing strengthenings in other 

parameters with the net result that we 

can conclude that the submitted NSR 

program will provide for equivalent or 

greater emissions reductions as the 

existing SIP NSR program (which predates the 1990 Clean Air Act 

Amendments) for the two applicable 

nonattainment pollutants, CO and PM–

10. 

Test for Source Modifications. As 

noted previously, the submitted DAQM 

NSR program would establish the more 

inclusive test (‘‘actual to potential’’) for 

evaluating source modifications and 

thereby replace the existing SIP NSR 

program’s ‘‘potential-to-potential’’ test, 

with the result that a greater number of 

source modifications would be subject 

to new source review and the related 

requirements of BACT or LAER. 

Control Technology Requirements. 

Under the existing SIP NSR program, 

the highest level of control (LAER) 

applies to all new or modified sources 

of CO or PM in the nonattainment area. 

In contrast, under the submitted DAQM 

NSR program, the next highest level of 

control, BACT, applies to new or 

modified sources of CO and PM with 

PTEs less than 70 tpy. Under the 

submitted NSR program, LAER applies 

at 70 tpy or greater for CO and PM–10. 

Offsets Requirements. Offsets 

requirements refer to applicable 

thresholds, ratios, and specifications 

such as whether offsets are surplus, 

permanent, quantifiable and federally 

enforceable. With respect to offset 

thresholds, for CO, offsets under the 

existing SIP NSR program apply to 

sources or modifications with PTEs 

greater than 100 tpy, whereas, under the 

submitted NSR program, offsets apply at 

70 tpy. For PM, offsets under the 

existing SIP NSR program apply to 

sources or modifications with PTEs 

greater than 25 tpy (based on TSP, 

which is roughly equivalent to 15 tpy 

PM–10). The corresponding threshold 

under the submitted NSR program is 70 

tpy of PM–10. With respect to offset 

ratios, for both CO and PM, the existing 

SIP NSR program establishes a 1:1 ratio 

whereas the submitted NSR program 

establishes a more stringent a 2:1 ratio. 

With respect to specific characteristics 

of offsets, DAQM section 59 requires 

that offsets be surplus, permanent, 

quantifiable and federally enforceable as 

defined in DAQM section 0. See DAQM 

section 59, subsection 59.4.2.1, and the 

related definitions in DAQM section 0. 

Section 15 does not have any similar 

requirements for offsets.

Evaluation for Carbon Monoxide.

First, as noted above, the submitted 

program would establish the more 

inclusive ‘‘actual-to-potential’’ test for 

evaluating source modifications. 

Second, the submitted program would 

establish a lower threshold for triggering 

offset requirements (70 tpy under the 

submitted NSR program versus 100 tpy 

under the existing SIP NSR program), 

would establish a higher offset ratio (2:1 

versus 1:1), and would establish the 

requirements for creation and use of 

offsets (surplus, permanent, quantifiable 

and federally enforceable) that ensure 

that emissions increases are truly offset. 

Thus, two of the three parameters 

strongly support a conclusion that the 

submitted program would provide 

equivalent or greater CO emissions 

reductions relative to the existing SIP 

NSR program. 

One of the three parameters, the 

control technology requirement, is more 

stringent for non-major sources under 

the existing SIP NSR program than 

under the submitted program. The 

existing SIP NSR program requires 

LAER-level of control for non-major CO 

sources whereas the submitted DAQM 

NSR program requires BACT-level of 

control for such sources. The emissions 

reductions associated with application 

of LAER-level of control relative to 

those associated with application of 

BACT-level of control depend upon the 

type and size of proposed sources or 

modifications. In some instances, due to 

the ‘‘top-down’’ approach used in BACT 

analyses, which requires justification for 

not selecting LAER-level of control 

before evaluating less stringent levels of 

control, BACT is equivalent to LAER. 

This ‘‘top-down’’ approach for 

determining BACT is described in detail 

in Chapter B of EPA’s Draft New Source 

Review Workshop Manual (October 

1990). In most other instances, the 

differences in emissions limitations 

between the two levels of control are 

relatively small, particularly in relation 

to emissions that would otherwise result 

from an uncontrolled source. 

Thus, we have concluded that the CO 

emissions increase associated with the 

incremental relaxation associated with 

the control technology requirement for 

non-major sources, which should be 

relatively minor given the small 

difference between emissions 

limitations under BACT versus LAER in 

most circumstances, would be more 

than compensated for by the more 

inclusive test for source modifications, 

the lower CO offset threshold, the 

higher CO offset ratio, and the 

establishment of other requirements for 

offsets that ensure that they truly offset 

emissions from applicable new sources 

or modifications. 

Evaluation for Particulate Matter. As 

noted above, the submitted DAQM NSR 

program would establish the more 

inclusive ‘‘actual-to-potential’’ test for 

evaluating source modifications. 

The second parameter, the control 

technology requirement (LAER), is more 

stringent for non-major sources under 

the existing SIP NSR program than 

under the submitted program (BACT). 

As described above for CO, however, the 

difference between the emissions 

reductions associated with application 

of LAER-level of control relative to 

those associated with application of 

BACT-level of control typically ranges 

from minor to none at all. 

With respect to requirements for PM 

offsets, the differences between the 

existing SIP and submitted NSR 

programs are particularly difficult to 

evaluate. On one hand, the existing SIP 

NSR program has established a lower 

offset threshold at 25 tpy of TSP (which 

is roughly equivalent to 15 tpy of PM–

10), compared to 70 tpy of PM–10 under 

the submitted program. On the other 

hand, the existing program has 

established a lower offset ratio (1:1 

versus 2:1). 

Moreover, the ‘‘quality’’ of the offsets 

under the existing program is lower 

than that required under the submitted 

program in two respects. First, unlike 

the submitted program, the existing SIP 

NSR program does not require that 

offsets be surplus, permanent, 

quantifiable and federally enforceable 

and thus does not ensure that increases 

in emissions are truly offset. Second, the 

existing SIP NSR program allows TSP 

offsets to be used to offset increases in 

PM emissions. Depending upon the 

particle size distribution of those TSP 

offsets, it is possible that increases in 

PM–10 emissions under the existing SIP 

NSR program would not be offset by 

PM–10 offsets at all. In other words, a 

new source that generates particulate 

matter that is largely or entirely of the 

particle size constituting PM–10 could 

be ‘‘offset’’ under the existing program 

Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 31065

by another source whose PM emissions 

are largely or entirely of a particle size 

not constituting PM–10 but still 

constituting TSP (TSP includes particles 

roughly 30 microns in diameter or less). 

In such circumstances, the PM–10 

emissions increase at the new source 

would be at most only partially offset 

since the ‘‘offsets’’ do not, or only 

partially, constitute PM–10. In contrast, 

the submitted program, while it does 

not require offsets for as many new 

sources as the existing program (due to 

the higher offset threshold), does require 

that PM–10 emissions increases be 

offset by PM–10 offsets, i.e., where 

offsets are required. 

In conclusion, while we recognize the 

significant trade-offs in emission 

reduction potential between the two 

NSR programs with respect to PM–10, 

we have concluded that the PM–10 

emissions increase associated with the 

incremental relaxation associated with 

the control technology requirement for 

non-major sources and the higher offset 

threshold would be more than 

compensated for by the more inclusive 

test for source modifications, the higher 

PM–10 offset ratio, the establishment of 

other requirements for offsets that 

ensure that they truly offset emissions 

from applicable new sources or 

modifications, and the requirement to 

use PM–10 offsets rather than TSP 

offsets, only some fraction of which 

constitutes PM–10. 

Conclusion. For the reasons set forth 

above, we propose to find that the 

submitted DAQM NSR program insures 

equivalent or greater emissions 

reductions of CO and PM–10 as 

compared to the existing SIP NSR 

program in compliance with section 193 

of the Act. 

Proposed Partial Approval 

Pursuant to section 110(k)(3) of the 

Act, we propose a partial approval of 

the submitted NSR rules. With the 

exceptions listed in the following 

subsection of this notice, we propose 

approval of the submitted NSR rules, 

including DAQM sections 0, 11, 12, 58, 

and 59 and NAC 445B.22083, based on 

our determination that the rules comply 

with applicable statutory and regulatory 

provisions requiring regulation of 

stationary sources in general and 

requiring permit programs for major 

stationary sources in particular, 

including section 110(a)(2)(C) and parts 

C and D of title I of the Act. In support 

of this recommendation, we have 

concluded that our approval of the 

submitted NSR rules (and thereby 

replacement or supercession of the 

existing SIP NSR rules), i.e., with the 

partial exception for certain definitions 

in existing SIP section 1, complies with 

section 110(l) of the Act because the 

untriggering (or re-setting) of the minor 

source baseline dates for PM and SO2

would be consistent with the statutory 

purpose of linking such dates with 

collection of actual air quality data and 

because the relaxation of certain control 

technology and offset requirements 

would not interfere with the strategy for 

attainment of the CO and PM–10 

NAAQS in Las Vegas Valley or the 

continued attainment of the other 

NAAQS in Clark County. 

Proposed Partial Disapproval 

We are also proposing a partial 

disapproval of the DAQM NSR 

submittal. A discussion of the 

individual subsections of the submittal 

that we are proposing to disapprove is 

provided in the following paragraphs. 

1. We propose to disapprove 

submitted DAQM section 12, 

subsections 12.2.18 (HAP sources in 

Clark County) and 12.2.20 (Additional 

Requirements for Stationary Sources 

with Beryllium, Mercury, Vinyl 

Chloride, or Asbestos Emissions in 

Clark County) to avoid potential 

confusion or conflict with the Federal 

NESHAPS/MACT regulatory program. 

Regulations governing hazardous air 

pollutant (HAP) emissions are generally 

not appropriate for incorporation into 

SIPs, which are intended under the Act 

to assure attainment and maintenance of 

the criteria air pollutants.

2. We propose to disapprove DAQM 

section 52, subsection 52.8 (Section 52 

Offset Program), because it cannot be 

evaluated properly in the absence of a 

SIP submittal of the entire rule (section 

52). DAQM revised subsection 52.8 to 

clarify the date when the emission 

reduction credit program will expire, 

but the emission reduction credit 

program is not a part of existing SIP 

section 52, different portions of which 

were approved by EPA in 1981 (see 46 

FR 21758, April 14, 1981) and in 1982 

(see 47 FR 26386, June 18, 1982). Thus, 

consideration of this latest revision 

should be conducted only as part of an 

evaluation of the entire rule (i.e., DAQM 

section 52). 

A partial disapproval is appropriate in 

this instance given the explanation 

provided above and given that these 

three subsections (i.e., DAQM section 

12, subsections 12.2.18 and 12.2.20, and 

DAQM section 52, subsection 52.8) are 

easily severable from the overall NSR 

submittal. 

Recommendations for Improvements to 

DAQM NSR Rules 

The TSD describes rule deficiencies 

that do not preclude full approval of the 

DAQM NSR submittal but are 

recommended for the next time DAQM 

modifies the rules. These 

recommendations relate to such topics 

as use of consistent terms, greater 

coordination with NDEP concerning 

increment consumption, and 

consideration of any analysis of the 

impact of a major source or major 

modification on air quality related 

values in Class I areas provided by a 

Federal Land Manager or other Federal 

official during the permit application 

review period and provision of an 

explanation in the public notice in those 

instances which DAQM disagrees with 

a finding of such Federal official. 

II. Corrections to, or Clarification of, 

the Clark County Portion of Nevada 

State Implementation Plan 

In pertinent part, section 110(k)(6) of 

the Act provides that whenever EPA 

determines that the EPA action 

approving, disapproving, or 

promulgating any plan or plan revision 

(or part thereof) was in error, EPA may 

in the same manner as the approval, 

disapproval, or promulgation revise 

such action as appropriate without 

requiring any further submission from 

the State. Such determination and the 

basis thereof shall be provided to the 

State and public. The EPA interprets 

this provision to authorize the Agency 

to make corrections to an approval, 

disapproval, or promulgation of a SIP 

revision when it is shown to EPA’s 

satisfaction that an error occurred in 

failing to consider or inappropriately 

considering information available to 

EPA at the time of the approval, 

disapproval, or promulgation, or the 

information made available at the time 

of approval, disapproval, or 

promulgation is subsequently 

demonstrated to have been clearly 

inadequate. 

Over the years, EPA has taken 

numerous actions on revisions to the 

Clark County portion of the Nevada SIP. 

In the process, EPA has made certain 

errors, or took certain actions that 

warrant clarification, which are the 

subject of this proposed action. Each 

proposed correction or clarification is 

summarized below. The TSD for this 

proposed action provides additional 

discussion of these rules. 

SIP section 1, subsections 1.79, 

Significant Source of Total Chlorides, 

and 1.94, Total Chlorides. In the 

preamble to our final rule approving 

these defined terms into the SIP (46 FR 

43141; August 27, 1981), we said that 

we were taking no action on these two 

subsections, but then we proceeded to 

codify them in the ‘‘Identification of 

plan’’ section of 40 CFR part 52, subpart 

31066 Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 

DD (Nevada). As a result, we 

inadvertently approved these two 

subsections of local rule, SIP section 1 

(Definitions), into the Clark County 

portion of the Nevada SIP. We are 

proposing now to delete these terms 

from the SIP and to codify this deletion 

by revising the appropriate paragraph 

under 40 CFR part 52, subpart DD 

(Nevada), section 1470 (Identification of 

plan). 

Former SIP section 12, Upset, 

Breakdown, or Scheduled Maintenance.

EPA originally approved this rule into 

the SIP in 1973. See 38 FR 12702 (May 

14, 1973). In 1981, we reversed course 

and disapproved it and codified this 

disapproval by amending 40 CFR part 

52, section 1478 (then entitled ‘‘Rules 

and Regulations’’). See 46 FR 43141 

(August 27, 1981). Subsequently, Clark 

County renumbered its air pollution 

regulations and submitted a local rule 

(section) 25 also entitled ‘‘Upset, 

Breakdown, or Scheduled 

Maintenance,’’ which we disapproved 

in 1984. See 49 FR 10259 (March 20, 

1984). In that 1984 final rule, we 

codified our disapproval of submitted 

section 25 by amending 40 CFR 52.1483, 

but we also removed and reserved 40 

CFR 52.1478 which had included the 

1981 disapproval language related to 

section 12 (Upset, Breakdown, or 

Scheduled Maintenance). (Note that 40 

CFR 52.1478 has subsequently been 

renamed ‘‘Extensions.’’) The end result 

of this sequence of rulemaking is that, 

while section 12 (Upset, Breakdown, or 

Scheduled Maintenance), originally 

approved by EPA in 1973, is no longer 

approved into the Nevada SIP (ever 

since disapproval action in 1981), the 

current codification of the Nevada SIP 

in subpart DD (Nevada) of 40 CFR part 

52 is not clear on this point. Therefore, 

we are proposing to clarify the status of 

former SIP (now disapproved) section 

12 (Upset, Breakdown, or Scheduled 

Maintenance), as submitted on January 

19, 1973, by revising the appropriate 

paragraph under 40 CFR part 52, 

subpart DD (Nevada), section 1470 

(Identification of plan). 

SIP Section 15, Prohibition of 

Nuisance Conditions. EPA approved 

this rule into the Nevada SIP in 1973. 

See 38 FR 12702 (May 14, 1973). Clark 

County later renumbered its air quality 

regulations, and we subsequently 

approved a new local rule (section) 15 

(Source Registration) into the SIP. That 

new SIP section 15 (Source Registration) 

had nothing to do with general nuisance 

conditions and thus did not supercede 

the old SIP rule 15 (Prohibition of 

Nuisance Conditions) in the Nevada 

SIP. However, general nuisance rules, 

such as SIP section 15 (Prohibition of 

Nuisance Conditions) are not 

appropriate for inclusion in SIPs, 

because they are not specifically 

directed at the attainment and 

maintenance of the NAAQS, and 

therefore, we are proposing to delete 

section 15 (Prohibition of Nuisance 

Conditions) from the SIP and to codify 

this deletion by revising the appropriate 

paragraph under 40 CFR part 52, 

subpart DD (Nevada), section 1470 

(Identification of plan). 

Disapproved section 25, subsection 

25.1, untitled, but related to upset, 

breakdown or scheduled maintenance.

In 1981, we disapproved this rule, 

which had been submitted to us on July 

24, 1979. See 46 FR 43141 (August 27, 

1981). Through that 1981 action, we 

listed this rule in the ‘‘Identification of 

plan’’ section of 40 CFR part 52, subpart 

DD (Nevada) but canceled out the 

apparent approval by codifying the 

corresponding disapproval in 40 CFR 

52.1478. In 1984, we disapproved an 

amended version of local Clark County 

rule, section 25 (Upset, Breakdown, or 

Scheduled Maintenance), which had 

been submitted to us on November 17, 

1981. See 49 FR 10259 (March 20, 

1984). In the 1984 action, we codified 

our disapproval of section 25 (Upset, 

Breakdown, or Scheduled 

Maintenance), submitted on November 

17, 1981, by amending 40 CFR 52.1483, 

but we also removed and reserved 40 

CFR 52.1478 (then entitled ‘‘Rules and 

Regulations’’), which had included the 

1981 disapproval language related to 

section 25, subsection 25.2, as 

submitted on July 24, 1979. By 

removing the disapproval language but 

retaining the listing of section 25, 

subsection 25.1, in the ‘‘Identification of 

plan’’ section of 40 CFR part 52, subpart 

DD (Nevada), we have inadvertently 

caused potential confusion as to the 

status of this particular rule with respect 

to the Nevada SIP. To eliminate this 

confusion, we are proposing to delete 

the listing of section 25, subsection 25.1 

(untitled, but related to upset, 

breakdown or scheduled maintenance), 

by revising the appropriate paragraph 

under 40 CFR part 52, subpart DD 

(Nevada), section 1470 (Identification of 

plan). 

SIP section 29 (Odors in the Ambient 

Air). EPA originally approved this rule 

into the SIP in 1973. See 38 FR 12702 

(May 14, 1973). Clark County later 

renumbered its air pollution regulations, 

and we subsequently approved a new 

local rule (section) 29 (Sulfur Content in 

Fuel Oil) into the SIP. See 46 FR 43141 

(August 27, 1981). The new SIP section 

29 (Sulfur Content in Fuel Oil) was 

completely different than the old SIP 

section 29 (Odors in the Ambient Air) 

and thus did not supercede it, nor have 

we taken specific action to delete the 

old SIP section 29 (Odors in the 

Ambient Air) from the Nevada SIP. 

Thus, section 29 (Odors in the Ambient 

Air), submitted on January 19, 1973, 

remains in the Nevada SIP. Odor 

nuisance rules are generally not 

appropriate for inclusion in the SIP, 

because they are not specifically 

directed at the attainment and 

maintenance of the NAAQS. Therefore, 

we are proposing to delete section 29 

(Odors in the Ambient Air), submitted 

on January 19, 1973, from the Nevada 

SIP and to codify the deletion by 

revising the appropriate paragraph 

under 40 CFR part 52, subpart DD 

(Nevada), section 1470 (Identification of 

plan).

SIP section 33, Chlorine in Chemical 

Processes. This local rule was adopted 

on May 18, 1984, and was included in 

the Las Vegas Valley Air Quality 

Implementation Plan, Post 1982 Update 

for Ozone, which was adopted by Clark 

County on October 16, 1984, submitted 

by NDEP on January 11, 1985, and 

approved by EPA as a SIP revision on 

August 21, 1986 (51 FR 29923). The 

codification of our approval of the post1982 ozone plan, however, does not 

provide a separate listing of section 33, 

which could result in confusion as to 

the status of that rule with respect to the 

SIP. See 40 CFR 52.1470(c)(33). To 

clarify its status as an approved part of 

the Nevada SIP, we are proposing to 

revise 40 CFR 52.1470(c)(33) to provide 

for a specific listing for section 33 

(Chlorine in Chemical Processes). 

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. These three 

rules were submitted to EPA on July 24, 

1979. In 1981, we took final action on 

the portion of the July 24, 1979 

submittal that included these three 

rules. See 46 FR 43141 (August 27, 

1981). In that rulemaking, we indicated 

that we were taking no action on the 

three rules, but we inadvertently listed 

them as approved into the SIP. See 40 

CFR 52.1470(c)(16)(viii). Therefore, we 

are proposing to revise 40 CFR 

52.1470(c)(16)(viii) to delete 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), submitted on July 24, 

1979, from the Nevada SIP. 

Conclusion. EPA has reviewed the 

rules described above and determined 

that they were previously approved in 

Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 31067

error into the Clark County portion of 

the Nevada SIP (SIP sections 1.79, 1.94, 

15, 29, 40.1, 42.2, and 43.1), or were 

previously disapproved but not clearly 

identified as such in the CFR (former 

SIP section 12 and disapproved 

submitted section 25.1), or were not 

clearly listed as approved (SIP section 

33). Deletion of those rules approved in 

error into the SIP will not relax the 

applicable SIP and is consistent with 

the Act. Therefore, EPA is proposing to 

delete them and to clarify the status of 

the other listed rules under section 

110(k)(6) of the Act, which provides 

EPA with the authority to take these 

actions without additional State 

submission. 

III. Proposed Action and Public 

Comment 

As authorized under section 110(k)(3) 

of the Act, EPA is proposing a partial 

approval and partial disapproval of the 

revised Clark County NSR rules into the 

Nevada SIP. We are proposing to 

approve submitted DAQM sections 0, 

11, 12 (except subsections 12.2.18 and 

12.2.20), 58, and 59 and submitted State 

regulation NAC 445B.22083. We are 

proposing to disapprove submitted 

DAQM section 12, subsections 12.2.18 

and 12.2.20, and submitted DAQM 

section 52, subsection 52.8. 

If finalized, this action would 

incorporate those provisions of the 

submitted rules that we are approving 

into the SIP and would not incorporate 

those provisions that we are 

disapproving. Also, if finalized as 

proposed, the submitted rules will 

supercede the existing SIP rules that 

provide for permitting of new or 

modified stationary sources in Clark 

County, including all of existing SIP 

sections 11 and 15, as well as most of 

the defined terms in existing SIP section 

1, and will withdraw EPA’s 

nonattainment area visibility FIP 

authority as it relates to new source 

review by DAQM in Clark County (see 

40 CFR 52.1488(b)). If this partial 

disapproval is finalized, sanctions will 

not be imposed under section 179 of the 

Act because the provisions that we are 

proposing to disapprove are not 

required SIP submissions. 

With respect to the two local rules 

entitled ‘‘Definitions,’’ if we finalize this 

action as proposed, we would approve 

submitted DAQM section 0 (Definitions) 

in its entirety, including those terms not 

directly related to NSR, but we would 

retain 33 defined terms from SIP section 

1 (Definitions) because there are no 

equivalent, corresponding terms and 

definitions in DAQM section 0, and 

thus, these terms may be needed for 

existing SIP rules unaffected by this 

action. The 33 defined terms from SIP 

section 1 to be retained include: 

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). The TSD 

provides additional information on the 

proposed partial supercession of 

existing SIP section 1.

Second, in recognition of the vacature 

of our approval of previous versions of 

the Clark County NSR rules in Hall v. 

EPA, we propose to delete 40 CFR 

52.1470(c)(36) and (37). 

Third, under section 110(k)(6), we are 

proposing to correct certain provisions 

of the Clark County portion of the 

Nevada SIP that were incorporated into 

the SIP in error and to revise certain 

provisions of the Clark County portion 

of the Nevada SIP that warrant 

clarification. Specifically, we are 

proposing 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 section 1470 

(‘‘Identification of plan’’) of 40 CFR part 

52, subpart DD (Nevada). If finalized as 

proposed, this action will delete these 

rules from the federally enforceable SIP. 

We are also proposing 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) have been disapproved 

and are not approved into the Nevada 

SIP, and 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. 

We are soliciting public comment on 

all aspects of this proposal. These 

comments will be considered before 

taking final action. To comment on 

today’s proposal, you should submit 

comments by mail (in triplicate if 

possible) as described in the ADDRESSES

section listed in the front of this 

document. EPA will consider any 

written comments received by July 2, 

2004. 

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

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 proposed action merely 

proposes to approve state law as 

meeting Federal requirements and 

imposes no additional requirements 

beyond those imposed by state law. 

Accordingly, the Administrator certifies 

that this proposed 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 

proposes to approve 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 proposed 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 

proposes to approve a state rule 

implementing a Federal standard, and 

does not alter the relationship or the 

31068 Federal Register / Vol. 69, No. 106 / Wednesday, June 2, 2004 / Proposed Rules 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed 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 proposed 

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.).

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compound.

Dated: May 24, 2004. 

Laura Yoshii, 

Acting Regional Administrator, Region IX.

[FR Doc. 04–12412 Filed 6–1–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 141 

[OW–2003–0067; FRL–7669–1] 

RIN 2040–AE62 

National Primary Drinking Water 

Regulations: Analytical Method for 

Uranium

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve 

the use of three additional analytical 

methods for compliance determinations 

of uranium in drinking water. Each of 

these methods use an inductively 

coupled plasma mass spectrometry 

(ICP–MS) technology that has gained 

wide acceptance in the analytical 

community. EPA believes that ICP–MS 

analytical methods could be more costeffective, less labor-intensive or more 

sensitive than some of the technologies 

previously approved in the December 

2000 Radionuclides Rule. (65 FR 76708) 

This proposed rule does not withdraw 

approval of any previously approved 

monitoring methods for uranium. 

In the ‘‘Rules and Regulations’’

section of the Federal Register, we are 

approving National Primary Drinking 

Water Regulations: Analytical Method 

for Uranium as a direct final rule 

without prior proposal because we view 

this as a noncontroversial rulemaking 

and anticipate no adverse comment. We 

have explained our reasons for this 

approval in the preamble to the direct 

final rule. If we receive no adverse 

comment, we will not take further 

action on this proposed rule. If we 

receive adverse comment, we will 

withdraw the direct final rule and it will 

not take effect. We will address all 

public comments in a subsequent final 

rule based on this proposed rule. We 

will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. 

Through this proposal, EPA requests 

comment on whether approval of the 

ICP–MS methods published by EPA, 

American Society for Testing and 

Materials International (ASTM), and the 

Standard Methods Committee (EPA 

200.8, ASTM D5673–03, and SM 3125), 

is appropriate for compliance 

determinations of uranium in drinking 

water only. Readers should please note 

that EPA is not requesting comment on 

any other use of these three ICP–MS 

methods, use of any other ICP–MS 

method, or any issue associated with the 

uranium standard or its 

implementation, and EPA will not 

respond to any comments other than 

those concerning the approval of these 

specific methods (as cited) for 

compliance determinations of uranium 

in drinking water. Today’s action does 

not affect approval of the 15 methods 

currently approved for compliance 

monitoring of uranium.

DATES: Comments must be received on 

or before July 2, 2004.

ADDRESSES: Submit your comments, 

identified by Docket ID No. OW–2003–

0067, by one of the following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Website: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: OW-Docket@epa.gov. 

• Mail: OW Docket, Environmental 

Protection Agency, Mailcode: 4101T, 

1200 Pennsylvania Ave., NW, 

Washington, DC 20460. Please include a 

total of 4 copies. 

• Hand Delivery: OW Docket, EPA 

Docket Center, EPA/DC, EPA West, 

Room B102, 1301 Constitution Avenue, 

NW, Washington, DC. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. OW–2003–0067. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http://www.epa.gov/

edocket, 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. The EPA 

EDOCKET and the federal 

regulations.gov Web sites 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 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102).

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other