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Citation: 69 Fed. Reg. 54006 2004

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

availability ofcoverage to the targeted recipients. When insurance policy
coverages are compared to determine whether coverage in apolicy offered by

an organization is not generally otherwise commercially available, the comparison is based on the specific characteristics ofthe mailpiece recipients (e.g., geographic location or demographics).

b. Except as specified in 5.5c, the types ofinsurance considered generally otherwise commercially available include, but are not limited to, homeowner's, property, casualty, marine, professional liability (including malpractice), travel, health, life, airplane, automobile, truck, motorhome, motorbike, motorcycle, boat, accidental death, accidental dismemberment, Medicare supplement (Medigap), catastrophic care, nursing home, and hospital indemnity insurance.

c. Coverage is considered not generally otherwise commercially available ifeither ofthe following conditions applies:

(1)The coverage is provided by the nonprofit organization itself(i.e.,the nonprofit organization is the insurer). (2)The coverage is provided or promoted bythe nonprofit organization in a mailing to its members, donors, supporters, orbeneficiaries in such a way that the members, donors, supporters, orbeneficiaries may make tax-deductible donations tothe nonprofit organization oftheir proportional shares of any income in

excess ofcosts that the nonprofit organization receives from the purchase ofthe coverageby its members, donors, supporters, orbeneficiaries.

An appropriate amendment to 39 CFR part 111 will be published to reflect these changes.

Neva R.Watson, Attorney,Legislative. [FRDoc. 04-20185 Filed9-3-04; 8:45 am]

BILLING CODE 7710-12-P

POSTAL SERVICE

39 CFR Parts 310 and 320

Restrictions on Private Carriage of Letters

AGENCY: Postal Service.
ACTION: Final rule.

SUMMARY: This rule amends the Postal Service regulations on enforcement and suspension ofthe Private Express Statutes to correct obsolete addresses.
EFFECTIVE DATE: September 7, 2004. FOR FURTHER INFORMATION CONTACT: Stanley F. Mires, (202) 268-2958.

SUPPLEMENTARY INFORMATION: Amendment ofparts 310 and 320 is necessary to correct the addresses for inquiries and other correspondence regarding enforcement ofthe Private Express Statutes.

List ofSubjects in 39 CFRParts 310 and 320

Advertising; Computer technology.
* Forthe reasons setforth above, the Postal Service amends 39 CFR Chapter I, Subchapter E as follows:

PART 310-[AMENDED]



### m1.The authority citation for part 310 continues to read asfollows:

Authority: 39 U.S.C. 401, 404, 601-606; 18 U.S.C. 1693-1699.
* 2a. Revise § 310.5(b) toread asfollows:
§310.5 Payment of postage onviolation.

(b)The amount equal to postage will be due andpayable not later than 15 days after receipt offormal demand from the Inspection Service or the Chicago Rates and Classification Service Center (RCSC) unless an appeal is taken
to the Judicial Officer Department in accordance with rules ofprocedure set outin part 959 ofthis chapter.

* 2b. Revise §310.6 toread as follows:
§310.6 Advisoryopinions.

An advisory opinion on any question arising under this part and part 320 of this chapter may be obtained by writing the Senior Counsel, Ethics and Information, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-1127. A numbered series of advisory opinions is available for inspection by the public in the Library ofthe U.S. Postal Service, and copies of individual opinions may be obtained
upon payment ofcharges for duplicating services.

PART 320-[AMENDED]

* 3.The authority citation for part 320 continues to read asfollows:

Authority: 39 U.S.C. 401, 404, 601-606; 18 U.S.C. 1693-1699. * 4.Amend § 320.3 inthe following

manner- * a. Revise § 320.3(a)toread as setforth below; and * b. Amend § 320.3(b)by removingthe words "properly identified postal inspector" and adding the words "properly identified representative of the RCSC" in their place. §320.3 Operations under suspension for certain data processing materials.

(a) Carriers intending to establish or alter operations based onthe suspension granted pursuant to § 320.2 shall, as a condition to the right to operate under the suspension, notifythe National Administrator forthe Private Express Statutes, U.S.Postal Service, RCSC, 3900 Gabrielle Lane, Rm. 111, Fox Valley, IL 60597-9599, oftheirintention
to establish such operations not later thanthe beginning ofsuch operations. Such notification, on a form available fromthe office ofthe National Administrator forthe Private Express Statutes, shall include information on the identity and authority ofthe carrier and the scope ofits proposed operations.

* * Stanley F. Mires, Chief Counsel,Legislative. [FR Doc. 04-20184 Filed 9-3-04; 8:45 am]

BILLING CODE 7710-12-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52
[NV054-081; FRL-7808-7]
Approval and Promulgation of Implementation Plans; New Source Review; State of Nevada, Clark County Department of AirQuality and Environmental Management

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: EPA istaking final action to partially approve and partially disapprove revisions tothe Clark County portion ofthe Nevada State Implementation Plan. These revisions

concern rules adopted bythe Clark County Board ofCounty Commissioners for issuingpermits fornew ormodified stationary sources inClark County to comply with the applicable permitting requirements under partsC and D of title Iofthe Clean Air Act as amended in 1990. These provisions ofthe Clean AirAct are designed to prevent significant deterioration in attainment

areas and to attain the National Ambient Air Quality Standards in nonattainment

areas. EPAis also approving as a revision to the Nevada State Implementation Plan a State regulation prohibiting the construction ofcertain types ofmajor new or modified power plantsthat are under exclusive State jurisdiction in the nonattainment areas within Clark County. The intended

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effect oftoday's final action is to ensure that Clark County's permitting rules are consistent with a rulingby the Ninth Circuit, see Hallv. EPA, 273 F.3d 1146 (9thCir. 2001) and with the requirements ofthe Clean Air Act, as amended in 1990. EPAis amending the appropriate section ofthe Code of Federal Regulations to reflect the
outcome ofHallv. EPA.Lastly, under section 110(k)(6) ofthe Act, EPA is correcting or clarifying certain previous final rulemaking actions taken by EPA

onrevisions to the Clark County portion ofthe Nevada State Implementation Plan.

DATES: EffectiveDate:This rule is effective on October 7,2004.
ADDRESSES: You can inspect copies of the docket for this action during normal business hours at the Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105. You may also see copies ofthe State's two submittals at the Nevada Division of Environmental Protection, 333 W. Nye Lane, Room 138, Carson City, Nevada 89706. Clark County's amended rules

are available at the Clark County Department ofAir Quality and Environmental Management, 500 S. Grand Central Parkway, Las Vegas, Nevada 89155. FOR FURTHER INFORMATION CONTACT: Roger Kohn, EPA Region IX, Air Division, Permits Office (AIR-3), at (415) 972-3973 orkohn.roger@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.
Table ofContents
I.Proposed Action

A. The State's Submittal B.Vacature ofEPAApproval ofPrevious

Versions ofthese Rules C.Correction or Clarification ofPrevious

EPA SIPActions onClark County Rules D. May 20, 2004Federal Register Direct Final and Proposed Rule on CCAQR Section 11 II.Public Comments I1.EPA Action
IV. Statutory andExecutive Order Reviews

I. Proposed Action

A. The State'sSubmittal

OnJune 2, 2004 (69 FR 31056), we proposed a partial approval and partial disapproval ofthe rules listed in Table 1 as revisions tothe Nevada State Implementation Plan (SIP). Specifically,

we proposed to approve submitted Clark County Air Quality Regulations (CCAQR) sections 0, 11, 12 (except subsections 12.2.18 and 12.2.20), 58 and 59 and to approve submitted Nevada Administrative Code section 445B.22083. We proposed to disapprove submitted CCAQR subsections 12.2.18 and 12.2.20 and CCAQR subsection 52.8.

TABLE 1
.- SUBMITTED RULES 1

Agency Rule # Rule title Adopted Submitted

DAQEM
............ 0

.......................... Definitio ns ..................................................................................................... 10/07 /0

3 10/2 3 /0

3 DAQEM

............ 11

........................... AmbientAir Quality Standards

.................................. ..... ........................... 10/07/03 10/23/03 DAQEM

......... 12

........................... Preconstruction Review for New or Modified Stationary Sources

............... 10/07/03 10/23/03 DAQEM

............ 52.8

........................ Gasoline Dispensing Facilities- Section 52 Offset Program

....................... 10/07/03 10/23/03 D

AQEM

............ 58

........................... Emission Reduction Credits

.................................... ..... ............................. 10/07/03 10/23/03 DAQEM

............ 59

........................... Emission Offsets

.......................................................... 10/07/03 10/23/03 SEC

.................. NAC 445B.22083

...Construction, major modification or relocation of plants to generate elec- 03/29/94 11/20/03 tricity using steam produced by burning of fossil fuels.

1In Clark County, the Board of County Commissioners is responsible for adopting, modifying, or repealing the Clark County Air Quality Regulations (CCAQR). Clark County's administrative departments were recently reorganized, and the Clark County Department of Air Quality Management (DAQM), cited in the proposed rule as the applicable local air pollution control agency, has been subsumed within a new county department named the Clark County Department of Air Quality and Environmental Management (DAQEM). The DAQEM, like its predecessor (i.e., the DAQM), is responsible for administering the Clark County Air Quality Regulations. In this final rule, we use the term "DAQEM" to refer to the local air agency, andterm "SEC" to refer to the State Environmental Commission.

We proposed apartial approval and a partial disapproval because, while we determined that most ofthe rules complied with the relevant Clean Air Act (CAA or Act) requirements, we determined that certain severable subsections ofthe rules did not so comply. We took this proposed action after finding the SIP submittal dated October 23, 2003, containing the local New Source Review (NSR) rules, tobe complete on November 18, 2003. The SIP submittal dated November 20, 2003, containing the State regulation,2 was

2NAC 445B.22083 prohibits newpower plants or major modifications to existing power plants under Statejurisdiction (i.e.,plants that generate electricity using steam produced by burning of fossil fuels butnot including anyplant which uses technology for a simple orcombined cycle combustion turbine), within the Las Vegas Valley nonattainment area and certain other areas within Clark County. See the proposed ruleat 69 FR
31058-31059 for more information on this State regulation. deemed complete by operation oflaw

onMay 20, 2004.

Our June 2, 2004 proposed action contains more information on the rules and our evaluation.

B. Vacatureof EPAApprovalof PreviousVersions ofTheseRules

In our June 2, 2004 proposed rule, we alsoproposed to delete 40 CFR 52.1470(c)(36) and (37) in recognition of the vacature by the Ninth Circuit Court ofAppeals ofour approval ofprevious versions ofthe Clark County New Source Review (NSR)rules in Hallv. EPA, 273 F.3d 1146 (9thCir. 2001).

C. CorrectionorClarificationofPrevious EPA SIPActions on ClarkCountyRules

Lastly, in our June 2, 2004 proposed rule, we proposed to correct certain provisions ofthe Clark County portion ofthe Nevada SIP that we approved in

error and torevise certain provisions of the Clark County portion ofthe Nevada SIP thatwarrant clarification. Specifically, we proposed to delete SIP section 1, subsections 1.79 (Significant

source oftotal chlorides) and 1.94 (Total Chlorides); SIP section 15 (Prohibition ofNuisance Conditions); SIP section 29 (Odors in the Ambient Air); SIP section 40, subsection 40.1 (Prohibition of Nuisance Conditions); SIP section42, subsection 42.2 (untitledbut related to nuisance from open burning); and SIP section 43, subsection 43.1 (Odors in the Ambient Air), fromthe appropriate paragraphs of40 CFR 52.1470 ("Identification ofplan"). We also proposed to revise the appropriate paragraphs in40 CFR 52.1470 to clarify that former SIP section 12 (Upset, Breakdown, or Scheduled Maintenance) and submitted section 25.1 (untitled, but related to upset,breakdown, or scheduled maintenance) are not approved into the Clark County portion ofthe Nevada SIP, and to clarifythat SIP section 33 (Chlorine in Chemical 

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Processes) was, and continues tobe, approved into the Clark County portion ofthe Nevada SIP as part of our approval ofthe overall post-1982 ozone plan for Las Vegas Valley.

D.May20,2004Federal RegisterDirect FinalandProposed Ruleon CCAQR Section 11

On May 20, 2004, we published a direct final rule (69 FR 29074) and a proposed rule (69 FR 29120) approving the same version ofCCAQR section 11 for which we subsequently proposed approval in ourJune 2, 2004 action. On

our own initiative, we withdrew the direct final rule with respect to CCAQR section 11 in a partial withdrawal action that we published on July 2, 2004 (69 FR 40324). We withdrew the direct final action on CCAQR section 11 to avoid confusion with our subsequent proposed rule. EPA's May 20, 2004 proposed rule provided for a 30-day public comment period. We received no comments on the May 20, 2004 proposal. In today's notice, we are finalizing action proposed both on May 20, 2004 and again onJune 2, 2004 to approve CCAQR section 11, as adopted

on October 7, 2003 and submitted to EPA on October 23, 2003, into the Clark County portion ofthe Nevada SIP.

II. Public Comments

EPA's June 2, 2004 proposed rule provided for a 30-day public comment period. During this period, we received
comments from the following parties:

(1)Ray Bacon, Executive Director, Nevada Manufacturers Association ("NMA"), letter dated June 28, 2004, calling for clarification ofwhich DAQEM rules are proposed to be part of the SIP and which are not, citing inadequate public access to NSR materials, recommending that only an offsetratio of 1:1 be made part ofthe SIP, calling for elimination of conflicting and confusing definitions, calling for the redesignation ofClark County to "attainment" for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS) and the revision ofthe NSR program accordingly, and calling for arevision of EPA's evaluation ofthe SIP submittals
to reflect the current Federal NSR regulations; (2)Christine Robinson, Director, Clark County Department ofAir Quality and Environmental Management (DAQEM), letter dated July 1, 2004, citing an apparent error in EPA's interpretation of the requirements for oxides ofnitrogen (NOx)under the existing SIP NSR
program, but supporting EPA's overall conclusions about the comparative stringency ofthe submitted NSR program relative tothe existing SIP NSR program; and (3)Robert W. Hall, President, Nevada Environmental Coalition, Inc. ("NEC"), letter dated July 2, 2004, objecting tothe proposed approval ofthe submitted NSR program asinconsistent with sections 110(1), 116, 171(1), and 193 of the Act,particularly asthose sections relate to the pollutants for which Las Vegas Valley has been designated nonattainment (i.e.,particulate matter (PM-10), CO, and ozone).

Responses to allcomments canbe found in the following paragraphs.

NMA Comment#1: EPA proposes to approve all ofCCAQR sections 58 and 59 (and corresponding provisions of section 12) concerning offsets. However,
not all ofthose requirements are intended to implement the Federal CAA NSR program, nor does DAQEM submit them for thatpurpose. DAQEM intends only subsection 59.1 ("Federal Offset Requirements") tobe part ofthe SIP revision, not subsection 59.2 ("Local Offset Requirements"). Similarly, subsections 59.3, 59.4, and 59.5 contain certain provisions that are meant tobe federally enforceable (i.e.,part ofthe SIP), and some that are exclusively local. Subsection 12.2.6, orportions thereof, also appears tobe a requirement, in whole or in part, that is
not intended for CAA NSR purposes and is not subject to this approval. EPA and DAQEM shouldidentify with precision which requirements of DAQEM NSR rules are to be federally approved and enforceable and which

are not; this clarified rule should then be subject to notice and commentbefore final SIP approval. As a consequence, the approval should be suspended and subject to notice and comment after the clarifications are made public.

ResponsetoNMA Comment#1: NMA is correct in that certain provisions of the submitted NSR program were not intended tobe approved as part ofthe Nevada SIP. Byletter dated July 12, 2004, from Jolaine Johnson, Acting Administrator, Nevada Division of Environmental Protection, to Deborah Jordan, Director, Air Division, U.S. EPA-Region IX, DAQEM and the State requested EPAto withdraw the approval ofsubsection 59.2 aspart ofthe SIP. As

aresult, we no longer have authority to act on subsection 59.2 ("Local Offset Requirements"), and subsection 59.2 will therefore not become federally enforceable. We do not believe that the State's withdrawal ofsubsection 59.2 necessitates a new round ofnotice and
comment underthe Administrative Procedure Act because we did not rely

on subsection 59.2 in our June 2, 2004 proposed rule. Thatis, we did not rely on subsection 59.2 to satisfy any Federal NSR (nonattainmentNSR orPSD) requirements nor to justify our proposed partial approval ofthe submitted NSR program under either sections 110(1) or 193 ofthe Act. The withdrawal of subsection 59.2 does not change our conclusion or the underlying rationale
set forth in the proposed rulein any way.

We note that the submitted NSR program contains a revised minor (Clark County Air Quality Regulations use a related term, "non-major") stationary

source review program and a revised major stationary source review program (nonattainment NSR andPSD) and that both minor and major source review programs are required under the Act. See sections 110(a)(2)(C), 161, and 172(c)(5) ofthe Act. Furthermore, for SIP revisions tobe approved byEPA, SIP revisions must also comply with certain other requirements ofthe Act, such as section 110(1), which prohibits approval ofSIP revisions that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement ofthe Act. Thus, certain requirements in the submitted NSRprogram may notbe needed to satisfy CAA NSR requirements for major

sources and major modifications, but are necessary to provide EPA with the basis
to approve the overall NSR program revision to supercede the existing SIPapproved Clark County NSR program under section 110(1). Thus, all ofthe provisions in the NSR submittal dated October 7, 2003, with the exception of those specific provisions which EPA proposed to disapprove andwith the added exception ofsubsection 59.2 discussed above, are necessary to provide EPA with thebasis to approve the updated NSR program, and, upon EPA approval, willbecome federally enforceable.

NMA Comment#2: An additional and separate source ofconfusion is the lack ofadequate posting andpublic access to the relevant NSR requirements. As of the date ofthese comments, DAQEM's Web site posts the text ofits section 0, 12, 58, and 59 requirements as regulations adopted on December 4, 2001. The EPAproposed rule for Clark County's SIP approval isbased on DAQEM regulations EPA states were adopted on October 7, 2003 and which

are available only bywritten request. The problem is that the text ofthe Clark County rules EPA apparently proposes to approve into the SIP is substantially different from the text ofthe DAQEM rules posted on DAQEM's Web site. To compound the problem, EPAhas stated "While we can only act on the most

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recently submitted version, we have reviewed materials provided with previous submittals." Neither the proposed rule itselfnor the Technical Support Document (TSD) explain what

are the "materials" or "previous submittals" on which EPA relies. As a result, public comment on the appropriateness of suchreliance is impossible. Before finalizing the SIP approval, EPA andDAQEM should identify the specific regulatory texts which form the basis for EPA's proposed SIP approval; these should be made available tothe public. To the
extent EPA relies on any materials other than these regulations, the proposed SIP approval should identify the specific material and the nature ofEPA's reliance on it.

ResponsetoNMA Comment#2:We disagree with NMA's contention that

our proposed action lacked adequate public access tothe relevant materials. The specific regulatory texts which form the basis for EPA's proposed SIP action

are as follows: CCAQR sections 0, 11, 12, 52.8, 58, and 59 (notincluding subsection 59.2, as discussed above in Response to NMA Comment #1), as adopted by the Clark County Board of County Commissioners on October 7, 2003 and as submitted toEPAby NDEP

on October 23, 2003; and Nevada Administrative Code (NAC) section 445B.22083, as adoptedby the State Environmental Commission on March 29, 1994 and submitted to EPA by NDEP

onNovember 20, 2003. With the exception ofsubsection 59.2, this is the
exact list identified in Table 1ofour proposed rule. See 69 FR at 31057. Also, in our proposed rule, at 69 FR 31056, column 3, we indicated that members of the public could inspect copies ofthe State's submittals, EPA's technical support documents, and other supporting documentation at EPA Region IX offices, could inspect copies ofthe State's submittals at NDEP offices in Carson City, or could inspect copies ofthe revised Clark County NSR rules
atDAQEM offices in Las Vegas. We did
not rely on DAQEM's Web site for public access tothe relevant materials.

In the proposed rule, at69 FR 31057,

we describe the various Clark County NSR submittals sent to us pursuant to the Act, as amended in 1990, and our actions related to them. In the discussion in the proposed rule, we explain that our approval ofprevious Clark County NSR submittals (then contained in Clark County Health District Air Pollution Control Regulations sections 0, 12, and 58) was vacated in Hallv. EPA (273 F.3d 1146, 9thCir. 2001), that we received a revised Clark County NSR program on February 25, 2003 that included the then-current CCAQR sections 0, 11, 12, 58, and 59, as adopted onDecember 4, 2001, but that this February 25, 2003 submittal was superceded by the Clark County NSR submittal dated October 23, 2003. Further, our proposed rule indicates that the October 23, 2003 submittal ofthe Clark County NSR rules is the one thatforms the basis for our proposed action. We rely on superceded SIP submittals onlyto the extent that they inform our understanding ofthe evolution ofthe Clark County NSR
program from the version thatformed the basis for our prior SIP approval action (see64 FR 25210, May 11, 1999), which was subsequently vacated in the Halldecision, through the adoption in October 2003 byClark County ofthe version ofthe NSR program that formed the basis for our proposed action. We believe that we described this regulatory history in sufficient detail in our June 2, 2004 proposed rule tohave allowed for informed public comment on our proposed action.

NMA Comment#3: Clark County's NSR rules andEPA's approval incorporate an unnecessarily and inappropriately stringent 2to 1offset ratio requirement for major sources and major modifications involving CO or PM-10. EPA explains in the TSD that CAA requirements to show noninterference with reasonable further progress would be satisfied atratio of 1
to 1. Thus, the 2to 1offset ratio is unnecessarily stringent, particularly in light ofthe additional respects in which the new Clark County NSR rules have significantly increased the rate of progress to attainment. Accordingly, the level ofoffsets which may be "federally enforceable" aspart ofthe applicable SIP should be limited to offsets in the ratio of 1to 1but not any higher ratio.

ResponsetoNMA Comment#3:In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the minimum requirements ofthe Clean Air Act and

our regulations. Section 173(c)(1) ofthe Act specifies that emissions "shall be offsetby an equal orgreater reduction,

as applicable, in the actual emissions of such airpollutant from the same or other sources in the area." The Act specifically provides discretion to establish an offset ratio in an amount that is greater than a ratio of 1to 1. Accordingly, the State's offsetprogram is consistent with, and meets the minimum requirements of,the Act. Moreover, our rationale for approval of the submitted NSR program (and supercession ofthe existingNSR program) under sections 110(1) and 193 ofthe Act rely in part on the submitted program's 2to 1offsetratio. See the proposed rule at 69 FR at 31061, column 3 (section 110(1) evaluation forCO); 69 FR at 31062, column 1 (section 110(1) evaluation for PM-10); and 69 FR 31064 (section 193 evaluations for CO and PM-10). In this regard, we note that the appropriate comparison for the
purposes ofsections 110(1) and 193 is between the submitted NSR program and the SIP-approved NSRprogram (from the early 1980's), notthe locallyadopted (butnot SIP-approved version) ofthe NSRprogram (adoptedin December 2001) that isbeing administered by DAQEM. (The submitted Clark County NSR program (adoptedin October 2003) will not be in effect until 30 days after we publish our final approval ofthe program in the Federal Register.)

NMA Comment#4: EPA proposes to retain in the approved SIP 33 definitions from section 1 ("Definitions") ofthe former Clark County rules. EPA states that while these definitions may not affect this NSR action, they maybe needed for other existing non-NSR SIP rules. We request that these definitions be deleted because retaining them may create confusion. Two examples include the
terms "minor source" and "source ofair contaminant." An additional and separate source ofconfusion is that the numeric citations for the defined terms do not correspond to the number citations currently used byDAQEM. The proposal to retain section 1 definitions should be withdrawn and all
terms should be revised and consolidated into a single regulation that would then be made part ofthe SIP.

Responseto NMA Comment#4:We agree thatEPA's approval of a second Clark County rule (i.e.,CCAQR section 0) entitled "Definitions" into the SIP is
notideal andmay cause confusion. However, there should be no confusion in the NSR context because, upon the effective date ofour final approval, new

or modified sources in Clark County willbe subject to the requirements in CCAQR sections 12 and 59 thatrely on the ambient standards in CCAQR section 11, the credits in section 58, and the terms defined in CCAQR section 0, such as "nonmajor stationary source" (seeparagraph (c) under "stationary source" in section 0) andwill not be subject to the requirements in the Clark County District Board ofHealth Air Pollution Control Regulations section 15 (referred toherein as "existing SIP section 15" or "SIP section 15")that rely on the ambient standards in Board ofHealth Air Pollution Control Regulations section 11 and the terms defined in existing SIP section 1, such 

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as "minor source" and "significant," since, at thattime, SIP section 15 will be entirely superceded in the SIP by CCAQR sections 12 and 59.

For the reasons stated in our proposed rule, at 69 FR at 31067, we continue to believe that the SIP should retain 33 specific defined terms from existing SIP section 1because other Clark County rules currently approved in the SIP continue to rely onthese terms. Clark County and the State ofNevada have
not submitted the updated versions (that rely on the defined terms in CCAQR section 0 rather than SIP section 1)of these SIP rules, and until that submittal is made and approved by EPA as a SIP revision, we must retain the 33 specific defined terms from existing SIP section 1on which these SIP rules rely. Specific examples ofexisting SIP rules thatrely

on certain definitions in existing SIP section 1include the following:

* Clark County District Board of Health Air Pollution Control Regulations (i.e., "existing SIP" or "SIP") section 2relies on the following
terms defined in SIP section 1: "air contaminant," "air pollution control committee," "board," and "source ofair contaminant;"

* Existing SIP section 4relies on the following terms defined in SIP section 1: "air contaminant" and "source ofair contaminant;"

* Existing SIP section 5relies on the following term defined in SIP section 1: "smoke;"

* Existing SIP section 18 relies onthe following terms defined in SIP section 1: "minor source" and "single source" and the term "minor source" relies on the term "significant;" and

* Existing SIP section 23 relies onthe following terms defined in SIP section 1: "affected facility," and "integrated sampling."

Lastly, while we recognize that there is a difference between the numeric references for specific defined terms in the version ofsection 1that DAQEM provides on its website and those cited by EPAin ourJune 2, 2004 proposed rule, the numeric references from the version of section 1that we cite in the proposed rule are those that we incorporated byreference into the Code ofFederal Regulations (CFR)and, as such, reflect the EPA-approved version ofSIP section 1.See 40 CFR 52.1470(c)(17)(i) and (ii) and40 CFR 52.1470(c)(24)(iii) and see also the rules posted for Clark County, Nevada on our Web site athttp://www.epa.govl region09/air/sips. The version ofsection 1that Clark County posts on its Web site
appears tobe a "cleaned-up" version of SIP section 1in which revision marks have been removed and for which the terms have been renumbered to reflect added and deleted terms. In contrast, the version of SIP section 1cited by EPA in the proposed rule represents an amalgam ofterms approved by EPA at different times in 1981 and 1982. See the related discussion in the proposed rule at 69 FR at 31057, column 1.

NMA Comment#5: By operation of federal law, aportion ofClark County is still designated as a serious nonattainment area for CO; as a result, NSR requirements for nonattainment

areas apply. However, the reality isthat control ofmobile and stationary sources has substantially improved air quality in Clark County, to the point that itnow qualifies for redesignation as an attainment area for CO. Such redesignation isnow in order. On January 28, 2003, EPA declared that no exceedances ofthe CO standard had been recorded in Clark County since 1998. Stationary sources are an insignificant source ofCO emissions in Clark County andthe burdensome nonattainment regulation of stationary

sources isno longer necessary to show
progress towards or to maintain air quality standards. We therefore request that EPAredesignate the area as expeditiously aspossible and, with DAQEM, revise the NSR rules for stationary sources accordingly.

ResponsetoNMA Comment#5: We
agree that certain changes in NSR program requirements are allowed once
an area has been redesignated from nonattainment to attainment. However, the Las Vegas Valley CO nonattainment

area cannot be redesignated to attainment until all ofthe redesignation criteria setforth in section 107(d)(3)(E) ofthe Act have been met. In our January 28, 2003 proposed rule on the serious

area CO plan (68 FR 4141 at 4142), we cited the record ofclean data over recent years from the DAQEM CO monitoring network, but that action did
not propose a finding ofCO attainment (butdid propose approval ofthe Las Vegas Valley CO attainment plan and vehicle inspection and maintenance program). We expect to propose an attainment finding for CO in the near future, but we note here such a finding is but one ofthe five criteria that must be met before aCO nonattainment area

canbe redesignated to attainment. Another criterion relates to approval by EPA of aCO maintenance plan, which EPA understands to be currently under development byClark County. Upon redesignation, EPA will consider any submitted changes to the requirements under Clark County's NSR program for

new ormodified stationary sources of CO in lightofthe County's future CO maintenance strategy. NMA Comment#6: EPA proposes to evaluate the submitted Clark County NSRprogram onthe basis ofFederal NSRregulations that are no longer in effect. This approach creates completely unnecessary and unjustified confusion. The Clark County NSR program should be evaluated based on current Federal NSRregulations. Review and evaluation ofClark County's NSRprogram based

on current Federal NSRregulations is mandated by the CAA.

Responseto NMA Comment#6: Our June 2, 2004 proposed rule explains that

we evaluated the submitted NSR program against the Federal NSR regulations that were in effect when the rules were being revised to address issues raised by EPAin the wake ofthe Hall decision. See 69 FR at 31058, column 3. We disagree that this approach creates unnecessary confusion, andwe disagree that the Act

or our regulations prohibits us from takingthis approach. One significant, on-going source ofconfusion that will be resolved by this final rule will be the need byDAQEM to reconcile the NSR
program requirements under the County's adopted (butnot EPAapproved) Air Quality Regulations with those under the NSRprogram approved by EPA as part ofthe SIP. As itstands
now, new or modified stationary

sources in Clark County must comply with two sets ofNSRrules: current, locally-adopted CCAQR sections 12 and 59 (andrelated provisions in sections 0, 11, and 58) and SIP-approved section 15 (andrelated provisions in SIP sections 1 and 11). The submitted NSR program represents a comprehensive revision to Clark County's EPA-approved NSR program from the early-1980's (and contained in sections 1,11, and 15), and

as such, compliance with both sets of rules is at the very least challenging and
atworst confounding for the regulated community. Today's final rule will close this "SIP gap" and thereby ease the associated regulatory confusion.

The proposed rule indicated (69 FR 31057, column 3)that our approach does not establish any precedent for evaluating whether aproposed NSR SIP fulfills the requirements ofthe revised NSRregulations that were published on December 31, 2002. Furthermore, we indicated at 69 FR at 31058, that the NSRrevision that is the subject ofthis action does not relieve Clark County, like other State andlocal agencies, from adopting and submitting revisions to its SIP-approved NSR rules implementing the minimum program requirements set forth in the revised Federal NSR regulations (publishedon December 31, 2002) no later than January 2, 2006. Today's final rulemaking simplymeans

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that the NSR revisions that are dueby January 2, 2006 will be using CCAQR sections 0, 11, 12, 58, and 59, as submitted onOctober 23, 2003, as the SIPbaseline NSR regulatory program instead ofthe 1980's-era sections 1, 11, and 15. None ofthe statutory or regulatory provisions citedby NMA require EPA to wait several more years to approve all ofthe necessary NSR revisions in a single rulemaking.

DAQEMComment#1: In the discussion ofNOx requirements (69 FR 31063), the statement is made that section 12 ofthe Clark County regulations represents a relaxation ofthe "control technology requirements for

new ormodified sources (from LAER to BACT)." In fact, the NSR regulation in the current SIP contains no provisions for NOx nonattainment areas and contains no control technology requirements for NOx (Section 15.14). Thus, superseding that section with the Section 12 imposition of aBACT requirement is actually astrengthening ofthe NSR rules.

ResponsetoDAQEMComment#1: We agree that the existing SIP NSR program (sections 1, 11, and 15) has no provisions for NOx nonattainment areas, but we disagree with DAQEM's conclusion that the existing SIP NSR program contains no control technology requirements for NOx. Subsection 15.13.1 sets forth the existing SIP NSR requirements for "all new, reconstructed

ormodified sources" ofNOx "throughout Clark County" and thereby establishes a control technology requirement, at the very least, ofbest available control technology (BACT) (see subsection 15.13.9.2). Furthermore,

we concluded in the proposed rule that SIP subsections 15.14.1 ("all new, or reconstructed, or modified stationary

sources * * * of* * *particulate
precursors * * * in the Las Vegas Valley *

.) and 15.14.1.3 ("Each

new ormodified source * * * shall incorporate * * * lowest achievable emission rate.") tighten the control technology requirement (i.e.,tothe lowest achievable emission rate (LAER)) for new or modified NOx sources in Las Vegas Valley, not onthe basis ofNOx

as a precursor to nitrogen dioxide (for which the entire county is attainment), but rather as a "particulate precursor," which is defined in section 1 as "a gaseous air contaminant which can undergo gas-to-particle conversion processes in the ambient air to form particulate matter. Examples: (1) Ammonia, sulfur dioxide, chlorine, and nitrogen oxides canbe converted to ammonium sulfate, ammonium nitrate, and ammonium chloride. (2)Volatile organic compounds canbe converted to organic and elemental carbon particulate." See the subsection entitled "Nitrogen Dioxide SIP Planning Considerations," in the Technical Support Document (TSD) for our proposed action onthe submitted Clark County NSR program.

The difference between DAQEM's interpretation and EPA's interpretation ofthe NOx requirements in Las Vegas Valley under the existing SIP NSR program highlights the ambiguity ofthe
term "particulate precursor." In our June 2, 2004 proposed rule, we did not recognize this existing SIP term as ambiguous, and evaluated the NOx control requirements in Las Vegas Valley accordingly, but upon reconsideration in light ofDAQEM's comment, we have concluded that the
term "particulate precursor," as defined in section 1,is ambiguous because the
term refers to examples ofthe types of gaseous air contaminants that can theoretically lead to secondary particulate formation (i.e.,canbe particulate precursors) rather than to a list ofgaseous air contaminants that are in fact significant precursors to particulate under the actual ambient conditions found in Las Vegas Valley.3

Given the ambiguity we now recognize in the term "particulate precursor," as used for the purposes of the existing SIP NSR program, we conclude that, while itis clear that at least BACT-level ofcontrol is required for allnew ormodified NOx sources throughout Clark County, it is unclear whether the most stringent control technology requirement (LAER) applies
to new or modified NOx sources in Las Vegas Valley under the existing SIP NSR program. However, this uncertainty only strengthens our conclusion from the proposed rule, that despite the incremental relaxation in the control technology requirement inLas Vegas Valley for new ormodified NOx sources (arelaxation that we now recognize as uncertain), supercession ofthe existing SIP NSR program bythe submitted NSR program would not interfere with continued attainment ofthe nitrogen dioxide NAAQS or any other applicable requirement ofthe Act. See our proposed rule at 69 FR at 31063, column 1.NEC Comment#1:Two ofthe applicable requirements that would be violated with the approval ofthe submitted NSR program as aSIP revision are CAA sections 116 and 193.

3Ina recent final rule on the Las Vegas Valley PM-10 attainment plan, we concluded that major

sources of PM-10 precursors such as nitrogen oxides and sulfur dioxide do not significantly contribute to violations ofthe PM-10 standards. See 69 FR 32273, at 32274, column 1 (June 9, 2004). The logic ofsections 116 and 193 is very clear. When an existing plan fails to result in the attainment ofthe NAAQS,

no subsequent revision ofthe plan's requirements canbe less stringent than the rules thathave already failed to result in attainment. With EPA's continued assistance, DAQEM is again proposing regulations that are less stringent than those that have already failed toresult in attainment ofthe NAAQS. EPA has failed to address section 116 requirements in their entirety in the proposed rule andTSD and proposes approval ofthe submitted NSRprogram despite an admission of relaxations inits section 193 discussion ofCO and PM-10.

Responseto NECComment#1: NEC contends that CAA section 116 requires that SIP revisions that would supercede pre-existing EPA-approved SIP rules be

no less stringent than those EPAapproved SIP rules individually or collectively. NEC contends thatEPA has ignored the requirements ofCAA section 116, but NECmisreads CAA section 116. Section 116 provides:

"Except as otherwise provided in sections 119(c), (e), and (f) (asin effect before the date ofthe enactment ofthe Clean AirAct Amendments of 1977), 209, 211(c)(4), and 233 (preempting certain State regulation of moving sources) nothingin this Act shall preclude or deny the right ofany State or political subdivision thereoftoadopt or enforce (1)any standard orlimitation respecting emissions ofairpollutants or (2) anyrequirement respecting control or abatement ofairpollution; except thatifan emission standard or limitationis in effect under an applicable implementation plan * * * such State or political subdivision may not adopt or enforce any emission standard

orlimitation whichis less stringent than the standard or limitationunder such plan

NEC's reading ofsection 116 as imposing requirements for SIP revisions

or ablanket prohibition on relaxation of SIPs would be inconsistent with CAA sections 110(l) and 193, which specify the criteria to be applied in evaluating SIP revisions. In pertinent part, CAA section 110(l) provides:

"The Administrator shall not approve a revision ofaplan ifthe revision would interfere withany applicable requirement concerning attainment andreasonable further progress (asdefined in section 171), or any other applicable requirement ofthis Act."

CAA section 110(1) does not preclude SIP relaxations but requires that relaxations notinterfere with specified requirements ofthe Act including requirements for attainment and reasonable further progress. Thus, ifan

area can demonstrate that itwill continue to attain or maintain the NAAQS and meet any applicable

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reasonable further progress goals or other specific requirements, it may revise SIP provisions, even ifthe revision amounts to a relaxation. See Hallv.EPA, 273 F.3d 1146, 1160 (9th Cir. 2001) (explaining thatto make a finding under CAA section 110(1), "EPA
must be able to conclude that the particular plan revision before it is consistent with the development of an overall plan capable ofmeeting the Act's attainment requirements."). Our proposed rule provides a detailed evaluation ofthe submitted NSR
program under section 110(1). We have compared the submitted NSR program and the EPA-approved (i.e.,existing SIP) NSR program thatit would replace and evaluated the effect ofthe changes
to the NSR program within the context ofambient air quality trends and compliance with CAA attainment planning requirements. We conclude that replacement ofthe existing SIP NSR
program with the submitted NSR program would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement ofthe Act. See 69 FR at 31060-31063.

Even ifa SIP revision is approvable under section 110(1), CAA section 193 imposes additional restrictions on modifications to certain SIP control requirements in nonattainment areas that were in effect prior to the 1990 Clean Air Act Amendments ("pre-1990 control requirements"). In pertinent part, CAA section 193 provides:

"No control requirement in effect, or required tobe adoptedby an order, settlement agreement, or planin effect before the date ofthe enactment oftheClean Air Act Amendments of 1990in any area which is anonattainment area for anyairpollutant may be modified after such enactment in any
manner unlessthe modification insures equivalent or greater emission reductions of such airpollutant."

Thus, while NEC's interpretation of CAA section 116 as providing a broad prohibition against SIP relaxations is
erroneous, CAA section 193 does limit nonattainment areas from backsliding from the emissions reductions achieved by pre-1990 control requirements. In our proposed rule, we provide a detailed evaluation ofthe submitted NSR
program under CAA section 193. See 69 FR at 31063-31065. In that evaluation, which covers the two pollutants (CO and PM-10) for which Las Vegas Valley

was designated nonattainment at the time ofthe 1990 CAA Amendments and remains so designated, we indicate specific instances where the requirement under the submitted NSR
program, such as the control technology requirement forminor sources, would be less stringent (BACT)than under the existing SIP NSR rules (LAER). Thus,

we acknowledge the relaxation of certain program elements, but our evaluation under CAA section 193 does
not endthere. We evaluated the NSR
programs as awhole taking into account all ofthe programs' elements (such as the control technology requirements, major stationary source thresholds, offsetratios, etc.) in concluding that the submitted NSR program will result in equivalent orgreater mitigation ofCO and PM-10 emissions increases due to

new source growth relative to the existing SIP NSR program.4

Thus, in summary, EPA concludes that although the SIP revision does relax certain CO and PM-10 provisions ofthe NSR program, the SIP revision as a whole satisfies section 110(1) because it is consistent with the area's overall control strategy, which takes into
account ambient trends and CAA planning requirements and which was recently approved byEPA in separate rulemakings (see response to NEC
comment #6), andit satisfies section 193 because the submitted NSR program provides equivalent or greater mitigation ofemissions increases compared to the existing SIP NSR
program.

NEC Comment#2: Clark County was recently declared anonattainment area for ozone. The relaxations in proposed controls for the ozone precursor pollutants (volatile organic compounds (VOC) andNOx) that arein the proposed SIP are a relaxation from the existing SIP. The situation is similar to the relaxations for CO andPM-10. Instead ofdealing with the issue, EPA has chosen to keep thatrelaxation from the discussion.

ResponsetoNEC Comment#2: Contrary toNEC's contention, the regulatory context for review ofthe submitted Clark County NSR program is different for ozone than for CO or PM10. For the latter pollutants, the nonattainment designations were reaffirmed bythe 1990 CAA Amendments and continue to the present day. In contrast, for ozone, prior to the 1990 CAA Amendments, implementation of

an effective control strategy for the only

ozone NAAQS then in existence (the 1- hour ozone NAAQS) led to our

4CAA section 193 uses the phrase "equivalent or greater emission reductions," but,in the context of NSR programs, which arenot specifically designed
to produce emissions reductions themselves but to

assure that stationary source growth occurs in a

manner that is consistent with an area's overall control strategy, the phrase means equivalent or greater mitigation ofemissions increases due to new stationary source growth. redesignation ofLas Vegas Valley from nonattainment to attainment. Las Vegas Valley continues to attain the 1-hour

ozone NAAQS to the present day. In 1997, EPApromulgated a revised NAAQS for ozone based on an 8-hour average. Following significant legal challenges to the 8-hour ozone NAAQS,

we promulgated designations earlier thisyear for all areas ofthe country for the 8-hour ozone NAAQS, andClark County was one ofthe areas that we designated as nonattainment. (The 1- hour ozone NAAQS continues to be in effect until June 2005 when itwill be revoked.) In our proposed rule, we acknowledge this recent designation for the 8-hour ozone NAAQS at 69 FR 31062, column 3. More recently, we deferred the effective date ofthe designation until September 13, 2004 to allow the State the opportunity to provide us with information thatwould support a nonattainment area boundary other thanthe county boundary. See 69 FR 34076 (June 18, 2004). A nonattainment designation triggers certain CAA requirements and will lead
to future SIP revisions that must be submitted prior to dates yet to be established by EPA.

We provide a section 110(1) evaluation in our June 2, 2004 proposed rule ofthe submitted NSR program with respect tothe ozone NAAQS. See 69 FR
at 31062-31063. Inthat discussion, we acknowledge certain incremental relaxations inthe VOC control technology requirement but, similar to

our discussion ofPM-10 and CO, we conclude that other aspects ofthe overall NSR submittal provide us with the basis to conclude thatthe submitted NSRprogram (and supercession ofthe existing SIP NSR program) would not interfere with attainment andreasonable further progress towards attainment of the ozone NAAQS, or any other requirement under the Act. In support ofthis conclusion in the case ofthe

ozone NAAQS, we point to the following: (1)The submitted NSR program would replace a "potential-topotential" test with the "actual-topotential" test for evaluating proposed stationary source modifications with the result that a greater number of modifications would be subject to new

source review (andthereby to the control technology requirements, etc.) underthe submitted NSR program than underthe existing SIP NSR program (see 69 FR 31061, column 1); (2) significant Clark County non-NSR SIP rules and EPAmotor vehicle tailpipe and fuel regulations that regulate VOC emissions wouldbe unaffected by this action (see 69 FR 31062, column 3); (3)the

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relaxation under the submitted NSR program with respect tothe VOC control technology requirement for minor VOC

sources in Las Vegas Valley wouldbe incremental (LAER to BACT) instead of total (LAER to uncontrolled) (see, generally, 69 FR at 31064, column 2); and (4) there would be an incremental strengthening (BACT toLAER) under the submitted NSR program ofthe VOC control technology requirement for new

ormodified major VOC sources in areas generally upwind ofLas Vegas Valley (see 69 FR 31062).

Although the CAA section 110(1) evaluation summarized above was prepared in connection with the 1-hour

ozone NAAQS, the same rationale also applies to the 8-hour ozone NAAQS. Thus, in summary, EPA concludes that although the SIP revision does relax certain VOC provisions ofthe NSR program, the SIP revision as a whole satisfies section 110(1) because it is consistent with the area's EPA-approved

ozone control strategy, and because, given the trade-offs concerning VOC requirements between the two programs

as discussed above and the inherent difficulty in determining with precision the net effect onVOC emissions of replacement ofthe existing SIP NSR program with the submitted NSR program (whichwould depend upon assumptions regarding the number and potential-to-emit offuture new and modified sources in addition to their proposed locations within Clark County), we believe that it is reasonable
to conclude that the submitted NSR program provides equivalent or greater mitigation ofVOC emissions increases compared to the existing SIP NSR program.

The State and Clark County developed the approved ozone control strategy to attain the 1-hour ozone NAAQS, but it also serves as thebase control strategy from which the State and Clark County will develop an 8- hour ozone control strategy. EPA willbe establishing the schedule that the State and Clark County must follow to develop an 8-hour control strategy in a final rule implementing the 8-hour

ozone NAAQS.

NEC Comment#3: EPA accepts relaxations in control technology requirements by discussing NSR offset requirements. Offset requirements are completely different than control requirements. Over the past 20+ years since approval ofthe existing SIP NSR program, neither EPAnor DAQEM have required or enforced the offset requirement in Clark County, despite

numerous sources thathave triggered the requirement, and for that reason, the public does not have much confidence that either will now start enforcing it. As a result, the offsets requirements that EPA relies on in the proposed approval
amountto "paper only" emissions reductions.

ResponsetoNEC Comment#3:In our proposed rule, we rely on the offset requirements in the submitted NSR program to mitigate the higher level of emissions from new or modified sources that might otherwise occur from a more stringent controltechnology requirement (e.g., LAER for minor sources) than the submittedprogram (BACT for minor sources). We also note the improved regulatory structure ofthe

new NSR rule that clearly specifies the "quality" of offsets required. By "quality," we refer to the requirements, such asthose set forth in CCAQR section 59, subsection 59.4, that emission reductions used to satisfy a Federal offset requirement must be surplus, permanent, quantifiable and federally enforceable, as those terms are defined in CCAQR section 0. 5 From a practical standpoint, the added regulatory clarity should enhance compliance with the requirements by permit applicants as well as enforcement ofthose requirements by DAQEM andEPA.

NEC Comment#4: The discussion regarding Clark County's local, road paving, and offset credit program fails to discuss the fact that the program has been amisleading program all along. The offset credits under the local
program cannot be replicated because they are not real. The local offset program was never intended to reduce air pollution. Despite this, the EPA and DAQEM continue to support the local emission reduction credit program used by favored sources to evade Federal offsetrequirements that EPA and DAQEM say arepart ofthe submitted NSR rules.

ResponsetoNEC Comment#4:As discussed above in response toNMA
comment #1, DAQEM andthe State requested EPAto withdraw the approval ofsubsection 59.2 aspart ofthe SIP. As

aresult, we no longer have authority to act on subsection 59.2 ("Local Offset Requirements"), and subsection 59.2 will therefore not be approved into the SIP. Subsection 59.2 (specifically, subsection 59.2.7.1) contains the provisions allowing use ofRoad Paving

5Section 15, subsection 15.14.4.3.3, appears to establish certain requirements for creation and use of offsets under the existing SIPNSR program. However, a typographical errorin the listing ofthis particular subsection inboth our proposed rulemaking (see 47 FR 7267, February 18, 1982), and final rulemaking (see 47 FR 26620, June 21, 1982) cast doubt on the validity ofEPA's approval of that subsection into the SIP. Also, see 40 CFR 52.1470(c)(24)(iii). Credits as PM-10 offsets. In accordance with CCAQR regulations (see CCAQR subsection 59.2.1), the Road Paving Credits are not available for use by new major sources or major modifications of PM-10 to comply with Federal offset requirements. We are therefore not addressing the issue ofwhether those credits would hypothetically be valid in meeting Federal offsetrequirements. As

we state inresponse to NEC comment #4, we expect that the more detailed specifications in submitted CCAQR section 59, subsection 59.4 (and the related definitions set forth inCCAQR section 0) regulating the creation and

use ofemissions reductions for the
purposes ofsatisfying the offset requirements will enhance both compliance and enforcement efforts compared to the existing SIP NSR
program.

NEC Comment#5: One way to ascertain ifreasonable further progress has been made is to review air quality in 1980 and compare it to today. The Las Vegas Valley was in nonattainment for particulate matter, ozone, and CO in 1980. As ofthe writing ofthis comment,

some ofthe rules were changed, but the valley remains in nonattainment for all three pollutants.

Responseto NECComment#5: The Clean Air Act defines "reasonable further progress" as "such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the
purpose ofensuring attainment ofthe applicable national ambient air quality standard bythe applicable date." See CAA section 171(1). Thus, reasonable further progress (RFP) is judged from an emissions standpoint and does not correlate directly to ambient concentrations, which reflect meteorological conditions that vary fromyear to year as well as emissions trends. However, over the long term, as NEC suggests, the trend in concentrations should be downward if there has in fact been "reasonable further progress." In Las Vegas Valley,

as discussed on a pollutant-by-pollutant basis inthe following paragraphs, the monitoring data shows improvement for all three pollutants for which Las Vegas Valley is, orwas, nonattainment, i.e., CO, particulate matter (TSP and PM10), and (one-hour) ozone, relative to conditions thatprevailed in the valley in the late 1970's and early 1980's.

CarbonMonoxide.In the late 1970's and early 1980's, the 1982AirQuality ImplementationPlan Update(June 1, 1982) indicates that the number ofdays peryear during which an exceedance of the CO NAAQS was recorded was about 54013

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30. In contrast, since 1998, there have been no recorded exceedances ofthe CO NAAQS. See our proposed approval of the 2000 Las Vegas Valley serious area CO SIP at68 FR 4141, at 4142, column 1 (January 28, 2003). The carbon monoxide control strategy has relied primarily on Federal motor vehicle emissions standards, wintertime State and local fuel specifications, and an "enhanced" vehicle inspection and maintenance program to improve CO conditions in Las Vegas Valley. In our June 2, 2004 proposed rule, we discuss how the submitted NSR program is consistent with the CO control strategy and the serious area CO SIP (which we recently approved). See 69 FR at 31061, column 3 and 31062, column 1.

Particulate Matter.During the 1977 through 1979 period, the number of days per year during which an exceedance ofthe particulate matter NAAQS (then defined in terms oftotal suspended particulate (TSP)) was recorded averaged 14 based on summaries ofmonitoring data compiled for the RevisedAirQuality ImplementationPlan(November 18, 1980). The particulate matter NAAQS

was revised to refer to PM-10, rather than TSP, in 1987, so a direct comparison between current conditions and those in the late 1970's isnot possible. Nonetheless, a comparison between the older TSP data and the
current PM-10 data provides a rough, if imprecise, basis for evaluating relative progress in reducing particulate matter concentrations in the valley over time. In that regard, we note that, during the 1997 through 1999 period, the number ofdays per year during which an exceedance ofthe PM-10 NAAQS was recorded averaged 10 based on data compiled for the PM-10State ImplementationPlan forClarkCounty (June 2001). Thus, while progress in attaining the particulate matter NAAQS has been slow, the approved 2001 PM10 attainment plan is the first Las Vegas Valley plan to contain a comprehensive
set ofregulations addressing fugitive dust sources, the predominant sources ofambient PM-10 in the valley. We approved the fugitive dust regulations, CCAQR sections 90 through 94, as part ofthe final rule approving the 2001 Las Vegas Valley PM-10 attainment plan. See 69 FR 32273 at 32276 (June 9, 2004). Also as part ofthe 2001 PM-10 attainment plan approval, we approved the demonstration ofattainment ofthe PM-10 NAAQS in Las Vegas Valleyby the end of2006. In our June 2, 2004 proposed rule, we discuss how the submitted NSR program is consistent with the PM-10 control strategy and serious area PM-10 attainment plan (whichwe recently approved). See 69 FR at 31062, columns 1 and 2. Ozone.During the 1980 through 1983 period, the number ofdays per year in which an exceedance was recorded varied from 1to 14 based ondata contained in theAirQuality ImplementationPlan,Post1982 Update (July 1984). By the mid-1980's, the 1- hour ozone NAAQS had been attained in Las Vegas Valley, and EPA redesignated the area as an "attainment"

area for the 1-hour ozone NAAQS in 1986. See 51 FR 41788 (November 19, 1986). The ozone control strategy relied primarily on Federal motor vehicle emissions standards andlocal stationary

source regulations, including, among others, Clark County District Board of Health Air Pollution Control Regulation Section 33 ("Chlorine in Chemical Processes"). Ourproposed rule onthe submitted NSR program, at 69 FR at 31062, column 3,notes that, since 1986, peak ozone levels have remained relatively constant at 0.09parts per million (ppm)to 0.10ppm, but peak levels in recent years have approached the 1-hour ozone NAAQS of 0.12 ppm. In our proposed rule, we discuss how the submitted NSR program is consistent with the 1980's-era 1-hour

ozone control strategy. See 69 FR at 31062, columns 2 and 3, and 31063, column 1.

As noted in response to NEC
comment #2, EPA recently designated Clark County as anonattainment area for the 8-hour ozone NAAQS (promulgatedby EPAin 1997) but deferred the effective date for that designation until September 13, 2004. Upon the effective date ofthe new designation, certain changes in the Clark County NSR program will be required under either the submitted or existing SIP NSR program (e.g., LAER and offsets for VOC and NOx major sources and major modifications throughout Clark County or designated subportion thereof).

NEC Comment#6: DAQEM has yet to produce an accurate and comprehensive emissions inventory for the nonattainment area. DAQEM uses air quality calculations that are not credible in order tojustify the desired paper-only endresult. For example, the emissions inventory from the "moderate area" plans from the mid-1990's show little resemblance to the current "serious area" plans. A specific instance is demonstrated by the PM-10 emissions estimates from vacant land that doubled between the "moderate area" PM-10 plan, which was withdrawn, and the "serious area" PM-10 plan. Itis also not credible that the plans project lower emissions despite apopulation that has tripled in 20 years. Also, certain emissions sources are completely missing from the inventories, such as
new power plants and a proposed airport.

The amount ofindustry emissions has increased since 1979 and for thatreason alone, LAER triggers shouldnot be relaxed. We cannot go from LAER to less thanthat without having an impact

on attainment. PM-10 emissions have
notbeen reduced in reality. DAQEM has utilized drastically lower emission factors to estimate emissions. There is

nojustification for the data presented in the proposed approval. Industry has
grown but the emissions inventory does
not show the same increase in emissions since the emission factors havebeen reduced.

Another trick DAQEM has mastered

over the years is the manipulation ofthe choice ofmonitoring sites and management's ability to shut down monitorsjust as they appear to reach the level ofNAAQS exceedances. DAQEM places only the official monitors in areas ofthe valley thathave proven through previous monitoring to rarely report exceedances.

According to CAA section 188(e), the "serious area" PM-10 attainment date may alsobe extended ifthe rules are followed. Clark County has notfollowed the rules. One criteria for an extension is that the plan for the area includes the
most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State. The EPAhas admitted that many ofthe control and offset requirements ofthe proposed plan are not as stringent asthe existing plan. DAQEM has noted that most sources in the nonattainment area are non-major

sources. Itisthese non-major sources thatrepresent the majority ofemissions whose emissions are being relaxed the
mostbythe proposed regulation. For all ofthe reasons herein, we object tothe proposed 5-year extension to 2006 for attainment.

Responseto NECComment#6: NEC objects to several aspects ofthe Las Vegas Valley CO andPM-10 attainment plans, including the characterizations of baseline ambient conditions based on data from the monitoring network, the emissions inventories, the control
measures, and the attainment demonstrations. We are taking no action today related to these plansbut do recognize that,in our June 2, 2004 proposed rule on the submitted NSR program, our rationale for determining that the submitted NSR program would
notinterfere with attainment ofthe CO and PM-10 NAAQS under section

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110(1) ofthe Act was based in part on
our evaluations, and proposed approvals (inseparate notices published in January 2003), ofthe CO and PM-10 attainment plans. See 68 FR 4141 (January 28, 2003) (CO plan proposed approval) and 68 FR 2954 (January 22, 2003) (PM-10 plan proposed approval).

Specifically, in our section 110(1) evaluation for CO, we based our conclusion in part on our previous evaluation and proposed approval (in the January 28, 2003 notice) ofthe CO attainment plan's inventories, including how those inventories account for stationary sources, our proposed approval ofthe plan's conclusion that stationary sources are not a significant contributor to CO levels in the valley, and our proposed approval ofthe attainment demonstration with reliance

on on-road motor vehicle measures (e.g., emissions standards, fuels, an inspection and maintenance program, and transportation control measures)
not stationary source controls. See 69 FR at 31061-31062 and the related discussion in the TSD on our proposal

onthe submitted NSR program at pages 31 through 37.

With respect to PM-10, we based our conclusion in part on our evaluation andproposed approval (inthe January 22, 2003 notice) ofthe PM-10 attainment plan's inventories, including how those inventories account for stationary source emissions, the plan's conclusion that stationary sources are not a significant contributor to PM-10 NAAQS violations in the valley, and the plan's attainment demonstration based

onimplementation ofnew fugitive dust controls, not stationary source controls.

Subsequent to publication ofour June 2, 2004 proposed rule on the submitted NSR program, we took final actions, after due consideration ofpublic comments, to approve the inventories and strategies in the CO and PM-10 attainment plans, and thus, our continued reliance onthose plan elements in support oftoday's final approval ofthe submitted NSR program under section 110(1) is appropriate. (The final rule approving the CO plan was signed on July 23, 2004 but has notyet been published in the Federal Register; the final rule approving the PM-10 plan

was published at 69 FR 32273 (June 9, 2004).)

Most ofthe specific issues raised by NEC on the attainment plans in this
comment were raised previously in the
context ofour January 2003 proposed approvals onthe CO and PM-10 plans, and thus, we rely primarily on our consideration ofthose comments as documented in the Response to Comments Documents prepared in conjunction with our final actions on the plans but also address newly-raised issues in the following paragraphs, which are organized bygeneral subject
matter.

Lack of AccurateandComprehensive EmissionsInventories for the NonattainmentArea:We disagree with this contention andbelieve that the baseline inventories in these plans represent comprehensive, accurate, and
current estimates ofactual emissions in the nonattainment area for the reasons setforth in our Response to Comments Documents for the CO andPM-10 attainment plan approvals. See CO Plan Final Rule Response to Comments Document, responses to NEC comments 12, 14, and 17 through 23; and PM-10 Plan Final Rule Response to Comments Document, pages 7through 13.

EmissionsTrendsInversely Proportional toPopulationGrowth:For CO, through 2010, the beneficial effect ofmotor vehicle andfuel-related CO control measures onCO emissions will

more than offset region-wide increases in vehicle-miles-traveled and thereby provide for a net downward trend in CO emissions. See CO Plan Final Rule Response to Comments Document, response to NEC comment #6. ForPM10, the explanation lies in the adoption, implementation, and enforcement ofa comprehensive set ofregulations (Clark County sections 90 through 94) that address the sources ofapproximately 90% ofthe PM-10 emissions inventory in Las Vegas Valley, i.e., fugitive dust
sources, including open areas, vacant lots, unpaved roads, unpaved alleys, andunpaved easement roads, unpaved parking lots, paved roads and street sweeping equipment, and construction activities. See the TSD for our proposed rulemaking on the submitted NSR program under the subsection entitled "PM-10 SIP Planning Considerations."

SignificantDifferencesin Current EmissionsEstimatesComparedto EstimatesPublished inPreviousPlans: Changes in EPA-approved emissions calculation procedures andmodels necessitate a re-figuring ofemissions in updated plans, andthe emissions estimates in the current CO and PM-10 plans are well documented and represent an improvement over the corresponding estimates in previous submittedplans. See CO Plan Final Rule Response to Comments Document, response to NEC comment #12; and PM-10 Plan Final Rule Response to Comments Document, responses to comments #7,#8 and #11.

StationarySource Trends:For CO, the attainment plan reasonably assumes that emissions from major sources would remain unchanged after thebaseline date (1996) due to the offset requirement for such sources but assumes that emissions from minor sources would increase in proportion to growth projections for the manufacturing sector. See CO Plan Final Rule Response to Comments Document, response to NEC
comment #22. ForPM-10, the attainment plan reasonably assumes that emissions from stationary sources would remain relatively constant from 1998 through the attainment year (2006)

as the growth in PM-10 emissions that would otherwise be expected to occur roughly in proportion to population is offsetby the combination ofthe application ofLAER (all new major stationary sources and major modifications) or BACT (all othernew stationary sources and modifications) and the expected downturn in two important PM-10 stationary source categories (sandand gravel operations and asphalt concrete manufacturing) due to declining rates ofpopulation growth and associated construction activity. See the TSD for our proposed rulemaking on the submitted NSR program underthe subsection entitled "PM-10 SIP Planning Considerations."

Inadequate MonitoringNetwork:We disagree with this contention and conclude in our final actions on the CO and PM-10 plans that the data from the monitoring network were sufficient for development ofthe attainment plans although we acknowledge certain deficiencies in the monitoring network that Clark County is inthe process of fixing. See CO Plan Final Rule Response
to Comments Document, responses to NEC comment #8; andPM-10 Plan Final Rule Response to Comments Document, pages 2through 7.

ExtensionofPM-10AttainmentDate andMostStringent Measures(MSM) Evaluation:Webelieve that Clark County has adequately identified the significant source categories for which best available control measures (BACM) and most stringent measures (MSM)
mustbe provided, has demonstrated that adopted BACM and MSM are being implemented as expeditiously as practicable, and has provided adequate technological or economic justifications for rejecting additional control measures that theoretically could have provided for a 2001 attainment date. See PM-10 PlanFinal Rule Response to Comments Document, pages 30 through 37 and pages 40 through 42. Finally, we note thatNSR itselfis not a "measure" that need be considered as a "most stringent measure" under section 188(e). NSR affects new ormodified sources whereas BACM and MSM representmeasures to reduce emissions from existing sources. Wenote that any revisions to an NSR 

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program, such as the replacement ofa LAER requirement by aBACT requirement for non-major (minor)
sources, applies only prospectively, and that, for example, air permits that apply LAER level ofcontrol for non-major

sources and issued prior tothe change in the NSR program would notbe affected by the change in the NSR program. Thatis, the permit condition

orconditions that apply LAER to the given source remain enforceable after the change in the NSR program. Only

new sources and source modifications that receive permits after the effective date ofthe change in the NSR program would be affected.

NEC Comment#7: Ifactual credible data was reported, the Apex Valley would have been declared a nonattainment area years ago. Instead, the EPAis helping DAQEM develop another relaxation ofthe regulations in the form ofprocess called a "Natural Events Action Plan" (NEAP). The NEAP's sole purpose to cast out data that does not fit the pre-conceived
outcome that the EPA and DAQEM have projected for health-based NAAQS. We donot believe that the NEAP has any lawful statutory basis and the practice is highly misleading. We reaffirm our request for full NEAP disclosure without further delay.

ResponsetoNEC Comment#7: In light ofthis comment, we have reconsidered our evaluation ofthe submitted NSR program under section 110(1) as itrelates to PM-10 emissions in Apex Valley, and we nowbelieve that

our conclusion in the proposed rule that there wouldbe an incremental relaxation in NSR requirements under the submitted NSR program (relative to the existing SIP NSR program) in that

area with respect to PM-10 but that suchrelaxation would be acceptable in part because ofthe future development ofa Natural Events Action Plan was in

error. We no longer believe it appropriate torely on the development ofa Natural Events Action Plan for Apex Valley to support our revised evaluation. As explained furtherbelow,

our evaluation ofthe submitted NSR
program was predicated on a mistaken interpretation ofthe PM-10 requirements for new ormodified

sources in Apex Valley under the existing SIP NSR program. Our revised interpretation ofthe existing SIP NSR requirements in Apex Valley has not changed ourbasic conclusion, i.e., that the submitted NSR program would not interfere with attainment ofthe PM-10 NAAQS under section 110(1) ofthe Act, but it has changed the underlying rationale for that conclusion. In the proposed rule, we relied solely

on existing SIP subsection 15.14.1 to conclude thatthe requirements of subsection 15.14 (such as LAER and, for

some sources, offsets) apply to new or modified sources ofPM-10 in Apex Valley. In pertinent part, subsection 15.14.1 states: "This section applies to allnew, or reconstructed, or modified stationary sources of * * * particulate * * * proposing to locate: (1)in the Las Vegas Valley, or * * * (3) in anyother

areain ClarkCountyin which theair qualitystandards areexceeded" (emphasis added). We interpreted subsection 15.14.1 as extending the requirements ofthat subsection (i.e., LAER, and in some cases, offsets) outside ofthe designated nonattainment

area (i.e.,Las Vegas Valley) to Apex Valley because Apex Valley had become

an areain ClarkCountyin which theair qualitystandards areexceededby virtue ofthe fact that PM-10 NAAQS exceedances have been recorded in that

area in recent years. (The current designations under section 107(d) ofthe Act for the two hydrographic areas (#216 and #217) that comprise Apex Valley are "unclassifiable" for the PM10 NAAQS, see 40 CFR 81.329, and EPA has not initiated the process to redesignate either one ofthe areas to "nonattainment.")

Upon reconsideration, we now believe that our solereliance on subsection 15.14.1 was mistaken. We shouldhave also considered existing SIP subsection 15.13.1, andthe definition of "nonattainment area" in existing SIP section 1, and in so doing,

we find that the phrase "in anyother

areain ClarkCountyin which theair qualitystandards areexceeded"in subsection 15.14.1 is correctly interpreted to refer to an area that has been established as a "nonattainment area" bythe Governor ofNevada and
notjust any area in which a monitor has recorded exceedances ofthe standard.

Existing SIP subsection 15.13 requires BACT level ofcontrol but does not require offsets. In pertinent part, existing SIP subsection 15.13.1 specifies that subsection 15.13 "applies to all
new, reconstructed, ormodified sources of* * *particulate* * *inthe attainment areasofClarkCounty" (emphasis added). Existing SIP section 1 ("Definitions") does not define the term "attainment area" but does so by negative implication by defining the term, "non-attainment area," to be "an

area which has been determined to exceed any national ambient air quality limit for any pollutant for which there is a standard. The Non-attainment Area for Clark County, Nevada has been established by the Governor ofthe State ofNevada and such area coincides with the boundaries ofthe Hydrographic Area 212 (Las Vegas Valley) as reported in the document "Water ResourcesInformation Series-Report 6" issuedby the Nevada State Engineer's Office in September, 1968. Bynegative implication, an "attainment area" then is an area thathas not been determined
to exceed a given NAAQS through a process involving the Governor. As such, subsection 15.13, rather than subsection 15.14, applies to new or modified PM-10 sources in Apex Valley underthe existing SIP NSR program because itis comprised by two areas thatremain designated as "unclassifiable" for the PM-10 NAAQS (inthis context, "unclassifiable" and "attainment" represent designations with equivalent regulatory requirements), and although exceedances ofthe PM-10 NAAQS have been measured there, Apex Valleyhas
notbeen "determined to exceed" through any process involving the State ofNevada or, more specifically, the Governor and thus does not represent an "areain ClarkCountyin which theair qualitystandardsareexceeded"for the
purposes ofsubsection 15.14.

This revised interpretation is supported bythe recognition ofsome of the enforceability problems that flow from our previous interpretation. These problems include lack offair notice to regulated sources as to when the requirements under subsection 15.14 (i.e.,LAER and, in some cases, offsets)

are triggered for new sources and modifications (e.g., it couldbe upon one exceedance, or sufficient exceedances to constitute a violation ofthe NAAQS, or
some other triggering event), when the requirements no longer apply (e.g., after

ayear ofclean data or some other indication that the area no longer is exceeding the standard), and what area is affected (e.g., the immediate area surrounding the monitoring station, the section 107(d) area (codified in 40 CFR part 81, subpart C) inwhich the monitor is located, or the entire valley in which the monitor is located, which in this

case involves two section 107(d) areas,

or some othergeographic area). Any
process under which the Governor makes a determination that a NAAQS is exceeded in agiven area would invariably identify an effective date, identify criteria for "attaining" the standard once again, and delineate boundaries for the affected area, and thereby avoid the enforceability problems associated with our previous interpretation.

With the revised interpretation ofthe requirements for new ormodified PM10 sources in Apex Valley under the

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existing SIP NSR program, we nowfind that there would be no relaxation in either the control technology requirement (BACT applies under both the existing SIP and submitted NSR programs) or offsetrequirement (none under either program) and thus approval ofthe submitted NSR program would not interfere with attainment of the PM-10 NAAQS in Apex Valley. Since our revised rationale for approving the submitted NSR program under section 110(1) as itrelates to PM10 in Apex Valley rests fundamentally

on an interpretation ofexisting regulatory requirements, we are not required to conduct supplemental notice and comment due to the exemption for interpretive rules under section 553(b) ofthe Administrative Procedure Act.

If, andwhen, EPA redesignates Apex Valley, or some portion thereof, to nonattainment for PM-10 under section 107(d) ofthe Act, then the Clark County portion ofthe Nevada SIP will need to be revised to provide for, among other things, implementation ofreasonably available control measures (RACM) to reduce emissions from existing PM-10

sources. In addition, the Clark County NSR program will need to be revised to require LAER and offsets for new major

sources and major modifications proposing to locate in the area so designated.

NEC Comment#8: We object toEPA's failure to implement a Federal Implementation Plan (FIP) under section 110(c)(1).

ResponsetoNEC Comment#8: We acknowledge that our deadlines for promulgating CO and PM-10 "serious area" FIPs under section 110(c)(1)(A) of the Act have passed,but our authority
to promulgate them under that section has also now expired, with the exception ofCO contingency provisions, due to our recent final actions approving the CO and PM-10 plans for Las Vegas Valley. Our decision not to take final action on the CO contingency provisions has no effect on our final action today on the submitted NSR
program.
III. EPAAction

As authorized under section 110(k)(3) ofthe Act, EPAis partially approving andpartially disapproving the revised Clark County NSR program. Our final action is a partial approval because we

are approving submitted CCAQR sections 0, 11, 12 (except subsections 12.2.18 and 12.2.20), 58, and 59 (except subsection 59.2, which was withdrawn) and submitted State regulation NAC 445B.22083, based on our determination that these rules comply with relevant CAA requirements for permitting ofnew

ormodified stationary sources in Clark County and that supercession ofrelated existing SIP provisions (i.e.,parts of section 1 and all of sections 11 and 15) is consistent with section 110(1) and 193 ofthe CAA. That is, we have determined that supercession ofthe existing SIP Clark County NSR program with the submitted NSR program will
not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement ofthe Act, consistent with section 110(1) as interpreted bythe Ninth Circuit in Hall

v. EPA, and will provide for equivalent

orgreater emission reductions of nonattainment pollutants as called for in CAA section 193. This action incorporates the rules, orportions of rules, that we are approving into the Nevada SIP. Furthermore, our approval ofthe submitted NSR program provides

us with the basis to withdraw EPA's nonattainment area visibilityFIP authority as itrelates to new source review byDAQEM in Clark County (see 40 CFR 52.1488(b)).

This final approval of section 0 ("Definitions"), as submitted on October 23, 2003, in its entirety results in the supercession ofall ofthe definitions in existing SIP section 1 ("Definitions") exceptfor the following 33 terms: Affected Facility (1.1), Air Contaminant (1.3), Air Pollution Control Committee (1.6), Area Source (1.11), Atmosphere (1.12), Board (1.16), Commercial OffRoad Vehicle Racing (1.23), Dust (1.26), Existing Facility (1.28), Existing Gasoline Station (1.29), Fixed Capital Cost (1.30), Fumes (1.36), Health District (1.40), Hearing Board (1.41), Integrated Sampling (1.44), Minor Source (1.50), Mist (1.51), New Gasoline Station (1.57), New Source (1.58), NIC (1.60), Point Source (1.70), Shutdown (1.78), Significant (unnumbered), Single Source (1.81), Smoke (1.83), Source of Air Contaminant (1.84), Special Mobile Equipment (1.85), Standard Commercial Equipment (1.87), Standard Conditions (1.88), Start Up (1.89), Stop Order (1.91), Uncombined Water (1.95), and Vapor Disposal System (1.97). Also, this final approval ofsection 0 results in the supercession ofall 29 ofthe section 0 definitions that were submitted toEPA

onJuly 23, 2001 as part ofthe Las Vegas PM-10 attainment plan and approved by EPA onJune 9, 2004 (see 69 FR 32273, at 32277).6

6 Inour TSD (dated April 23, 2004) forthe proposed action on the Clark County NSR rules, we compared the definitions in section 0, as adopted locally on December 4, 2001 and submitted to EPA

on February 25, 2003, with the corresponding definitions in a previous version ofsection 0 that Our action also constitutes apartial disapproval because we are disapproving submitted CCAQR section 12, subsections 12.2.18 and 12.2.20, and submitted CCAQR section 52, subsection 52.8. We are disapproving submitted CCAQR section 12, subsections 12.2.18 and 12.2.20, which relate to regulation ofhazardous air pollutants, as inappropriate for inclusion in the SIP. 7We are disapproving submitted CCAQR subsection 52.8 because it cannot be evaluated properly in the absence ofa SIP submittal ofthe entire rule (i.e., CCAQR section 52). These disapproved rules are notincorporated into the SIP. No sanctions flowfrom this partial disapproval action under section 179 of the Act because the disapproved provisions do not constitute required SIP submissions.

Second, in recognition ofthe vacature ofour approval ofprevious versions of the Clark County NSR rules in Hallv. EPA,we are deleting 40 CFR 52.1470(c)(36) and (37).

Third, under section 110(k)(6), we are correcting certain provisions ofthe Clark County portion ofthe Nevada SIP that we approved in error and are revising certain provisions ofthe Clark County portion ofthe Nevada SIP that
warrant clarification. Specifically, we

are deleting SIP section 1, subsections 1.79 (Significant source oftotal chlorides) and 1.94 (Total Chlorides); SIP section 15 (Prohibition ofNuisance Conditions); SIP section 29 (Odors in the Ambient Air); SIP section40, subsection 40.1 (Prohibition ofNuisance Conditions); SIP section 42, subsection 42.2 (untitledbut related to nuisance from openburning); and SIP section 43, subsection 43.1 (Odors inthe Ambient Air), from the appropriate paragraphs of section 1470 ("Identification ofplan") of40 CFR part 52, subpart DD (Nevada). This action deletes these rules from the federally enforceable SIP. We are adding

hadbeen submitted as part ofthe Las Vegas PM10 attainment plan and concluded that there were

no substantive differences between the two sets of definitions. In this finalrule, we recognize that the February 25, 2003 submittal was superceded by the October 23, 2003 submittal, but we have concluded that there are no substantive differences between the setof definitions inthe October 23, 2003 submittal and the corresponding set ofdefinitions submitted as part ofthe Las Vegas PM-10 attainment plan.

7HAP regulations arenot inappropriate for approval as part ofa SIP inevery instance, see, e.g., 40CFR part 51, Appendix S, IV. C.6, but in this instance, CCAQR subsections 12.2.18 and 12.2.20 do not apply to sources subject to the criteria pollutant provisions contained inother subsections ofCCAQR section 12 and thus are inappropriate because they would not contribute to attainment of

a NAAQS nor arethey needed to satisfythe noncriteria pollutant requirements ofthe Federal NSR regulations. 

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paragraphs to 40 CFR 52.1483 ("Malfunction regulations") to clarify that former SIP section 12 (Upset, Breakdown, or Scheduled Maintenance) and submitted section 25.1 (untitled, but related to upset,breakdown, or scheduled maintenance) havebeen disapproved and are not part ofthe applicable SIP.8 Lastly, we are revising the 40 CFR 52.1470(c)(33) to clarify that SIP section 33 (Chlorine in Chemical Processes) was, and continues tobe, approved into the Nevada SIP as part of

our approval ofthe overall post-1982

ozone plan for Las Vegas Valley.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is
not a "significant regulatory action" and therefore isnot subject toreview by the Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by
state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on asubstantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (PublicLaw 104-4).

This rule also does not have tribal implications because itwill 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,

8We had indicated in ourJune 2,2004proposed rule thatwe wouldclarify the disapproval status of these rules byrevising the appropriate paragraphs in 40 CFR 52.1470, but we are instead adding text to 40CFR 52.1483, which is a specific section of 40 CFR part52, subpart DD (Nevada) that lists regulations that address upset conditions andthat have been submitted to EPA as revisions to the Nevada SIPbutthat have been specifically disapproved by EPA. onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities amongthe various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely
approves a state rule implementing a Federal standard, and does not alterthe relationship or the distribution ofpower andresponsibilities established in the Clean Air Act. This rule also isnot subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because itis not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that theymeet the criteria of the Clean Air Act. In this context, in the absence ofa prior existing requirement for the State touse voluntary consensus standards (VCS), EPAhas no authority
to disapprove aSIP submission for failure to use VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) donot apply. This rule does
not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the
agency promulgating the rule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal Register. This actionis not a "major rule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by November 8, 2004. Filing apetition for reconsideration by the Administrator of this final rule does not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule

or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFR Part52

Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compound.

Dated:August 25, 2004. Wayne Nastri, Regional Administrator,RegionIX.

* Part 52, ChapterI, Title40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

m1. The authoritycitation forPart 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart DD-Nevada

* 2. Section 52.1470 is amended as follows:



### ma. Adding paragraphs (c)(5)(i), (c)(16)(viii)(C), (c)(17)(ii)(A), (c)(53), and (c)(54); * b.Revising paragraph (c)(33)(i)(A); and



### mc. Removing andreserving paragraphs (c)(36) and (c)(37).
§52.1470 Identificationof plan.

* * * * *

(c) * * * (5) * * * (i) Previously approved on May 14, 1973 in paragraph (c)(5) ofthis section and now deleted without replacement: Section 15 (Prohibition ofNuisance Conditions) and Section 29 (Odors in the Ambient Air).

* * * * *

(16) * * * (viii) * * * (C) Previously approved on August 27, 1981 in paragraph (c)(16)(viii) ofthis section and now deleted without replacement: Section 40, Rule 40.1 (Prohibition ofNuisance Conditions); Section 42, Rule 42.2 (openburning); and Section 43, Rule 43.1 (Odors in the Ambient Air).

(17) * * * (ii) * * * (A)Previously approved on August 27, 1981 in paragraph (c)(17)(ii) ofthis

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section andnow deleted without replacement: Section 1,Rules 1.79, 1.94.

* * * * *

(33) * * * 

### (i)* * * (A)Las Vegas Valley Air Quality Implementation Plan, Post 1982 Update for Ozone adopted on October 16, 1984 (including section 33 (Chlorine in Chemical Processes)), adopted May 18, 1984).

* * * * *

(53) The following plan revision was submitted onOctober 23, 2003, by the Governor's designee. (i) Incorporation byreference. (A)Clark County Department ofAir Quality and Environmental Management. (1)New or amended rules adopted on October 7,2003 bythe Clark County Board ofCounty Commissioners: Clark County Air Quality Regulations section 0 (Definitions), section 11 (AmbientAir Quality Standards), section 12 (PreconstructionReview for New or Modified Stationary Sources), excluding subsection 12.2.18 and 12.2.20, section 58 (EmissionReduction Credits), and section 59 (EmissionOffsets), excluding subsection 59.2 ("Local Offset Requirements"). (54) The following plan revision was submitted onNovember 20, 2003 bythe Governor's designee. (i) Incorporation byreference. (A)Nevada Division ofEnvironmental Protection. (1)Nevada Administrative Code section445B.22083, adopted March 3, 1994 (effective March 29, 1994), by the State Environmental Commission. * 3.Section 52.1483 is amended as follows:


### ma. Redesignating paragraph (a)(1)(i) as paragraph (a)(1)(iii); * b. Adding newparagraphs (a)(1)(i) and (a)(1)(ii); and


### mc. Revising newly designated paragraph (a)(1)(iii).
§52.1483 Malfunction regulations.

(a) * * * (1) * * * (i) Previously approved on May 14, 1973 and deleted without replacement

onAugust 27, 1981: Section 12 (Upset, Breakdown, or Scheduled Maintenance). (ii) Section 25, Rule 25.1, submitted by the Governor on July 24, 1979. (iii)Section 25, Rules 25.1-25.1.4, submittedby the Governor on November 17, 1981. * 4. Section 52.1488 is amendedby revising paragraph (b)to read as follows:
§52.1488 Visibilityprotection.

* * * * * (b)Regulation for visibility monitoring and new source review. The provisions of§52.26 arehereby incorporated and made a part ofthe applicable plan for the State ofNevada. The provisions of §52.28 are hereby incorporated and made a part ofthe applicable plan for the State ofNevada except for thatportion applicable to the Clark County Department ofAir Quality and Environmental Management.

* * * * *
[FR Doc. 04-20137 Filed 9-3-04; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 52

[RME Docket Number R08-OAR-2004-CO0002; FRL-7809-2]
Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Colorado Springs Revised Carbon Monoxide Maintenance Plan and Approval of Related Revisions

AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action approving a State Implementation Plan (SIP) revision submittedby the State ofColorado. On April 12, 2004, the Governor of Colorado submitted arevised maintenance plan for the Colorado Springs carbon monoxide (CO) maintenance area for the CO National Ambient Air Quality Standard (NAAQS). The revised maintenance plan contains a revised transportation conformity budget for the year 2010 and beyond. In addition, the Governor submittedrevisions to Colorado's Regulation No. 11 "Motor Vehicle Emissions Inspection Program." In this action, EPAis approving the Colorado Springs CO revised maintenance plan, revised transportation conformity budget, andthe revisions to Regulation No. 11. This actionis being taken under section 110 ofthe Clean Air Act.
DATES: This rule is effective on November 8, 2004, without further notice, unless EPAreceives adverse
commentby October 7,2004. Ifadverse
comment is received, EPA will publish

atimely withdrawal ofthe direct final rule in the Federal Register informing the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by RME Docket Number R08- OAR-2004-CO 0002, by one ofthe following methods:

* Federal eRulemaking Portal: http:// www.regulations.gov.Follow the on-line instructions for submitting comments.

* Agency Web site: http:// docket.epa.gov/rmepub/index.jsp. Regional Materials in EDOCKET (RME), EPA's electronic public docket and
comment system for regional actions, is EPA'spreferred method for receiving
comments. Follow the on-line instructions for submitting comments.

* E-mail: long.richard@epa.gov and muss.tim@epa.gov.

* Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER
INFORMATION CONTACT ifyou are faxing comments).

* Mail: Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.

* Hand Delivery: Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding federal holidays. Special arrangements shouldbe made for deliveries ofboxed information.

Instructions: Direct your comments to RME Docket Number R08-OAR-2004- CO-0002. EPA'spolicy is that all
comments received will be included in the public docket without change and maybe made available at http:// docket.epa.gov/rmepub/index.jsp, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information thatyou consider to be CBI

or otherwise protected through EDOCKET, regulations.gov, or e-mail. EPA'sRegional Materials in EDOCKET and federal regulations.gov Web site are "anonymous access" systems, which

means EPA will not know your identity

or contact information unless you provide it inthe body ofyour comment. Ifyou send an e-mail comment directly
to EPA, without going through EDOCKET or regulations.gov, your email address willbe automatically captured andincluded as part ofthe
comment that is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPArecommends that you include your name and other contact information in thebody ofyour comment and with any disk orCD-ROM
you submit. IfEPA cannot read your 

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