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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

31056

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

Commission (SEC), and submitted by Division of Environmental Protection Nevada State Implementation Plan

the State air agency, the Nevada (NDEP), to EPA as revisions to the (SIP).

TABLE 1 .- SUBMI-TED RULES

Agency Rule # Rule title Adopted Submitted

DAQ M ..................... 0 ....................... Definitions .................................................................................. 10/07/03 10/23/03

DAQ M ....................................... 11 . ............ Am bient Air Q uality Standards ............................................... 10/07/03 10/23/03

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

Sources.

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

DAQ M ....................................... 58 ............. Em ission Reduction C redits ..................................................... 10/07/03 10/23/03

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

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

22083. erate electricity using steam produced by burning of fossil

fuels.

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(1) 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

31057

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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(1) 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(1) 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(1), 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)

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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

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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 (SO 2); 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 (SO 2)) 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) (SO 2) 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 (SO,

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 (SU2);

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(1) of the Act

Section 110(1) 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(1) 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

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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 SO 2 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

SO 2 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 SO 2 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(1)

of the Act. Section 110(1) 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(1). 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

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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-1 0). 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

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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 NO 2 NAAQS. See 40 CFR 81.329.

Ambient NO 2 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 NO 2 PSD

increments and requiring the related

NO 2 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 NO 2 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 NO 2

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 NO 2 NAAQS or any other applicable

requirement of the Act.

Sulfur Dioxide (SO 2). Clark County is

designated on a hydrographic area basis

as unclassifiable/attainment for the SO 2

NAAQS. See 40 CFR 81.329. SO 2

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 SO 2

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 SO 2

sources within Las Vegas Valley (i.e.,

from LAER to BACT) and an

incremental relaxation in the ambient

SO 2 standards used in the impact

analyses conducted as part of the permit

application process for new or modified

sources (comparing the SO 2 ambient

standards in existing SIP section 11

with submitted DAQM section 11).

From the standpoint of continued

attainment of the SO 2 NAAQS, EPA

concludes that the incremental

relaxation of the control technology

requirement in Las Vegas Valley for new

or modified sources of S0 2 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 S0 2 concentrations continue to

be well below the applicable NAAQS.

Also, NDEP has jurisdiction over one of

the principal sources of S0 2 (coalburning power plants) in Clark County,

and the control technology requirements

for S0 2 emissions from those sources

are unaffected by this action. Finally,

the incremental relaxation in S02

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 SO 2. 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 SO 2 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

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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 PM10.

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 PM10), 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

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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 SO 2

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

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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

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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

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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

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material, such as copyrighted material,

is not placed on the Internet and will be

publicly available only in hard copy

form. Publicly available docket

materials are available either

electronically in EDOCKET or in hard

copy at the OW Docket, EPA Docket

Center, EPA/DC, EPA West, Room B102,

1301 Constitution Avenue, NW,

Washington, DC. This Docket Facility is

open from 8:30 a.m. to 4:30 p.m.,

Monday through Friday, excluding legal

holidays. The Docket telephone number

is (202) 566-2426. The Public Reading

Room is open from 8:30 a.m. to 4:30

p.m., Monday through Friday, excluding

legal holidays. The telephone number

for the Public Reading Room is (202)

566-1744.

FOR FURTHER INFORMATION CONTACT:

General Information-Lisa Christ, Office

of Ground Water and Drinking Water,

Mailcode: 4606M, Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW, Washington, DC 20460;

telephone number: (202) 564-8354; email address: christ.lisa@epa.gov,

Technical information-David Huber,

Office of Ground Water and Drinking

Water, Mailcode: 4606M, Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW, Washington, DC, 20460;

telephone number: (202) 564-4878; email address: huber.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Does This Action Apply to Me?

Entities potentially regulated by this

regulation are public water systems that

are classified as community water

systems (CWSs). A community water

system (CWS) means a public water

system which serves at least 15 service

connections used by year-round

residents or regularly serves at least 25

year-round residents. Categories and

entities potentially regulated by this

action include the following:

Category Examples of potentially regulated entities NAICS1

Industry ........................................................................................... P rivately-ow ned com m unity w ate r system s ................................... 221310

State, Tribal, Local, and Federal Government ............................... Publicly-owned community water systems ..................................... 924110

1 National American Industry Classification System.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

facility is regulated by this action, you

should carefully examine the

applicability criteria in § 141.66 of title

40 of the Code of Federal Regulations.

If you have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

II. What Is EPA's Statutory Authority

and Background for This Proposed

Rule?

The Safe Drinking Water Act (SDWA),

as amended in 1996, requires EPA to

promulgate national primary drinking

water regulations (NPDWRs) which

specify maximum contaminant levels

(MCLs) or treatment techniques for

drinking water contaminants (SDWA

section 1412 (42 U.S.C. 300g-1)).

NPDWRs apply to public water systems

pursuant to SDWA section 1401 (42

U.S.C. 300f(1)(A)). According to SDWA

section 1401(1)(D), NPDWRs include

"criteria and procedures to assure a

supply of drinking water which

dependably complies with such

maximum contaminant levels; including

accepted methods for quality control

and testing procedures." In addition,

SDWA section 1445(a) authorizes the

Administrator to establish regulations

for monitoring to assist in determining

whether persons are acting in

compliance with the requirements of the

SDWA. EPA's promulgation of

analytical methods is authorized under

these sections of the SDWA, as well as

the general rulemaking authority in

SDWA section 1450(a), (42 U.S.C. 300j9(a)). As discussed earlier in part L.A of

this preamble, the action proposed

herein would affect CWSs. CWSs are a

subset of public water systems. (40 CFR

141.2).

On December 7, 2000 (65 FR 76708),

EPA published a final Radionuclides

Rule in the Federal Register that

included monitoring requirements and a

MCL of 30 micrograms per liter (30 gg/

L) for uranium that took effect in

December 2003. In the preamble to the

December 2000 rule, EPA noted that

several commenters asked EPA to

consider the approval of compliance

monitoring methods that use an

inductively coupled plasma mass

spectrometry (ICP-MS) technology. (65

FR 76724) These commenters suggested

that ICP-MS analytical methods could

be more cost-effective, less laborintensive or more sensitive than some of

the technologies approved in the

December 2000 rule. In response to

these comments, EPA stated that the

Agency was reviewing ICP-MS

technology for possible proposal in a

future rulemaking. EPA has completed

this review and in today's proposed rule

is proposing approval of three methods

that use ICP-MS technology. The

methods are equivalent and published

by EPA, ASTM International, and the

Standard Methods (SM) Committee. The

methods are EPA 200.8, ASTM D5673-

03, and SM 3125.

III. What is EPA Doing Today?

EPA is proposing to approve the use

of the ICP-MS methods published by

EPA, ASTM International, and the

Standard Methods Committee (EPA

200.8, ASTM D5673-03, and SM 3125)

for compliance determinations of

uranium in drinking water. For further

information regarding these methods,

please see the information provided in

the direct final action located in the

"Rules and Regulations" section of this

Federal Register publication.

For the various statutes and executive

orders that require findings for rule

making, EPA incorporates the findings

from the direct final rule into this

companion proposal for the purpose of

providing public notice and opportunity

for comment.

IV. Summary of ICP-MS Technology

EPA reviewed ICP-MS methods

published by EPA, ASTM International,

and the Standard Methods Committee.

In each of these methods, sample

material in solution is introduced by

pneumatic nebulization into a

radiofrequency plasma where energy

transfer processes cause desolvation,

atomization and ionization. The ions are

extracted from the plasma through a

differentially pumped vacuum interface

and separated on the basis of their massto-charge ratio by a quadrupole mass

spectrometer having a minimum

resolution capability of one atomic mass

unit peak width at five percent peak

height. The ions transmitted through the

quadrupole are detected by an electron

multiplier or Faraday detector and the

ion information processed by a data

handling system. The sensitivity of each

ICP-MS method for compliance

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determinations of uranium in drinking

water is acceptable and is sensitive

enough to detect at less than one part

per billion (1 ug/L). The uranium MCL

is 30 ug/L.

EPA reviewed each of these methods

for performance and applicability to

compliance determinations of uranium

in drinking water. Three of these

methods, EPA 200.8, ASTM D5673-03,

and SM 3125, have acceptable

performance and are otherwise suitable

for compliance determinations of

uranium in drinking water. Method EPA

200.8 was published by EPA in 1994;

method ASTM D5673-03 was published

by ASTM International in 2003; and SM

3125 was published by the Standard

Methods Committee in 1998. In today's

proposed rule, EPA is proposing the use

of these ICP-MS methods for

compliance determinations of uranium

in drinking water.

EPA is not, in today's proposed rule,

proposing the use of these methods for

any other purposes. EPA notes that EPA

200.8 was approved for compliance

determinations of several regulated

metals in drinking water on December 5,

1994. (59 FR 62456) EPA also recognizes

that the other two ICP-MS methods

proposed through today's action for

determination of other uranium may

also be applicable to monitoring for

other drinking water contaminants.

Although the analytical scope of ASTM

D5673-03 and SM 3125 extends beyond

uranium, these two methods were not

published until 2003 and 1998,

respectively. In a later rulemaking, EPA

may consider extending the use of

ASTM D5673-03 and SM 3125 to

compliance determinations of other

regulated metals.

Like flourometric and laser

phosphorimetry methods, ICP-MS

measures uranium mass only; therefore

all caveats discussed in the December

2000 Radionuclides Rule on using mass

methods to determine contributions to

gross alpha also apply. (65 FR 76724)

Today's proposed rule does not affect

approval of the 15 methods currently

specified at 40 CFR 141.25(a) for

compliance determinations of uranium.

V. Statutory and Executive Order

Reviews

For the Statutory and Executive Order

reviews see the parallel direct final rule

found elsewhere in today's Federal

Register.

List of Subjects for 40 CFR Part 141

Environmental protection, Chemicals,

Indians-lands, Intergovernmental

relations, Radiation protection,

Reporting and recordkeeping

requirements, Water supply.

Dated: May 24, 2004.

Michael 0. Leavitt,

Administrator.

For the reasons set out in the

preamble, title 40, chapter 1 of the Code

of Federal Regulations is amended as

found in the parallel direct final rule

found elsewhere in today's Federal

Register.

[FR Doc. 04-12300 Filed 6-1-04; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF HOMELAND

SECURITY

Federal Emergency Management

Agency

44 CFR Part 67

[Docket No. FEMA-D-7592]

Proposed Flood Elevation

Determinations

AGENCY: Federal Emergency

Management Agency (FEMA),

Emergency Preparedness and Response

Directorate, Department of Homeland

Security.

ACTION: Proposed rule.

SUMMARY: Technical information or

comments are requested on the

proposed Base (1% annual chance)

Flood Elevations (BFEs) and proposed

BFE modifications for the communities

listed below. The BFEs are the basis for

the floodplain management measures

that the community is required either to

adopt or to show evidence of being

already in effect in order to qualify or

remain qualified for participation in the

National Flood Insurance Program

(NFIP).

DATES: The comment period is ninety

(90) days following the second

publication of this proposed rule in a

newspaper of local circulation in each

community.

ADDRESSES: The proposed BFEs for each

community are available for inspection

at the office of the Chief Executive

Officer of each community. The

respective addresses are listed in the

table below.

FOR FURTHER INFORMATION CONTACT:

Doug Bellomo, P.E., Hazard

Identification Section, Emergency

Preparedness and Response Directorate,

FEMA, 500 C Street, SW., Washington,

DC 20472, (202) 646-2903.

SUPPLEMENTARY INFORMATION: FEMA

proposes to make determinations of

BFEs and modified BFEs for each

community listed below, in accordance

with section 110 of the Flood Disaster

Protection Act of 1973, 42 U.S.C. 4104,

and 44 CFR 67.4(a).

These proposed base flood and

modified BFEs, together with the

floodplain management criteria required

by 44 CFR 60.3, are the minimum that

are required. They should not be

construed to mean that the community

must change any existing ordinances

that are more stringent in their

floodplain management requirements.

The community may at any time enact

stricter requirements of its own, or

pursuant to policies established by other

Federal, state or regional entities. These

proposed elevations are used to meet

the floodplain management

requirements of the NFIP and are also

used to calculate the appropriate flood

insurance premium rates for new

buildings built after these elevations are

made final, and for the contents in these

buildings.

National Environmental Policy Act.

This proposed rule is categorically

excluded from the requirements of 44

CFR part 10, Environmental

Consideration. No environmental

impact assessment has been prepared.

Regulatory Flexibility Act. The

Mitigation Division Director of the

Emergency Preparedness and Response

Directorate certifies that this proposed

rule is exempt from the requirements of

the Regulatory Flexibility Act because

proposed or modified BFEs are required

by the Flood Disaster Protection Act of

1973, 42 U.S.C. 4105, and are required

to establish and maintain community

eligibility in the NFIP. As a result, a

regulatory flexibility analysis has not

been prepared.

Regulatory Classification. This

proposed rule is not a significant

regulatory action under the criteria of

section 3(f) of Executive Order 12866 of

September 30, 1993, Regulatory

Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism.

This proposed rule involves no policies

that have federalism implications under

Executive Order 12612, Federalism,

dated October 26, 1987.

Executive Order 12778, Civil Justice

Reform. This proposed rule meets the

applicable standards of section 2(b)(2) of

Executive Order 12778.

List of Subjects in 44 CFR Part 67

Administrative practice and

procedure, Flood insurance, Reporting

and recordkeeping requirements.

Accordingly, 44 CFR part 67 is

proposed to be amended as follows:

PART 67-[AMENDED]

1. The authority citation for part 67

continues to read as follows:

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