[Federal Register Volume 68, Number 173 (Monday, September 8, 2003)]
[Rules and Regulations]
[Pages 52838-52841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22647]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NV 045-0070a; FRL-7547-9]


Revisions to the Nevada State Implementation Plan, Clark County 
Air Quality Management Board

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Clark County Air Quality Management Board (CCAQMB) portion of the 
Nevada State Implementation Plan (SIP). The revisions concern the 
emission of particulate matter (PM-10) from residential wood 
combustion. We are approving the local rules (building code provisions) 
that regulate this emission source under the Clean Air Act as amended 
in 1990 (CAA or the Act).

DATES: This rule is effective on November 7, 2003 without further 
notice, unless EPA receives adverse comments by October 8, 2003. If we 
receive such comments, we will publish a timely withdrawal in the 
Federal Register to notify the public that this rule will not take 
effect.

ADDRESSES: Mail or e-mail comments to Andy Steckel, Rulemaking Office 
Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105; [email protected].
    You can inspect a copy of the submitted rules (building code 
provisions) and EPA's technical support document (TSD) at our Region IX 
office during normal business hours. You may also see a copy of the 
submitted rules (building code provisions) and TSD at the following 
locations:

Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, (Mail Code 6102T), Room B-102, 1301 Constitution 
Avenue, NW., Washington, DC 20460.
Nevada Division of Environmental Protection, 333 West Nye Lane, Room 
138, Carson City, NV 89706.
Clark County Air Quality Management Board, 500 South Grand Central 
Parkway, Las Vegas, NV 89155.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.

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

[[Page 52839]]

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rules?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. Public comment and final action
III. Background Information
    Why were these rules submitted?
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules we are approving with the date they were 
revised by the local air agencies and submitted by the Nevada Division 
of Environmental Protection (NDEP).

                                                                Table 1.--Submitted Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Rule (building code section      Rule (building code
                Local agency                          )                 provision) title               Adopted                 Submitted
--------------------------------------------------------------------------------------------------------------------------------------------------------
Clark County...............................  (3708)......................  Fireplaces in New            11/20/90...............  11/19/02
                                                                            Construction and New
                                                                            Fireplaces in Existing
                                                                            Construction (Ordinance
                                                                            No. 1249).
City of Las Vegas..........................  (3708)......................  Fireplaces in New Vegas      11/21/90...............  11/19/02
                                                                            Construction and New
                                                                            Fireplaces in Existing
                                                                            Construction (Ordinance
                                                                            No. 3538).
City of North Las Vegas....................  (13.16.150).................  Fireplaces in New            09/18/91...............  11/19/02
                                                                            Construction and New
                                                                            Fireplaces in Existing
                                                                            Construction (Ordinance
                                                                            No. 1020).
City of Henderson..........................  (15.40.010).................  Fireplaces in New            10/15/96...............  11/19/02
                                                                            Construction and New
                                                                            Fireplaces in Existing
                                                                            Construction (Ordinance
                                                                            No. 1697).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    On May 18, 2003, this submittal was deemed complete by operation of 
law in accordance with 40 CFR part 51, appendix V.

B. Are There Other Versions of These Rules?

    There are no previous versions of these rules (building code 
provisions) approved into the SIP.

C. What Is the Purpose of the Submitted Rule Revisions?

    The purpose of the building code provisions is to require that 
fireplaces being constructed in new or existing dwelling units be 
fuelled with natural gas, conform to EPA emission requirements, contain 
an insert that meets EPA emission requirements, or their equivalent, or 
be decorative electrical appliances.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(l) and 
193). Section 189(b) of the CAA requires serious PM-10 nonattainment 
areas with significant or major PM-10 sources to adopt best available 
control measures (BACM), including best available control technology 
(BACT). Clark County is a serious PM-10 nonattainment area. See 40 CFR 
81.330.
    EPA's guidance for serious PM-10 nonattainment areas provides that 
BACM/BACT is required to be implemented for all source categories 
unless the State demonstrates that a particular source category does 
not contribute significantly to PM-10 levels in excess of the NAAQS. 
See 57 FR 13498, 13540 (April 16, 1992) (``General Preamble'') and 59 
FR 41998 (August 16, 1994) (``Addendum''). The activities regulated by 
the above rules (building code provisions) contribute an insignificant 
(de minimis) 0.02% of the total PM-10 emissions in Clark County 
according to the PM-10 State Implementation Plan for Clark County for 
the Las Vegas Valley Nonattainment Area, Nevada Division of 
Environmental Protection (June 19, 2001). Therefore, the rules 
(building code provisions) need not fulfill the requirements of BACM/
BACT. We are evaluating these rules (building code provisions) only to 
ensure that they do not relax the SIP in violation of CAA sections 
110(l) and 193, and that they meet enforceability and other general SIP 
requirements of section 110.
    The following guidance documents were used for reference:
    [sbull] Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
    [sbull] PM-10 Guideline Document, EPA-452/R-93-008.
    [sbull] General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992).
    [sbull] Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990, 59 FR 41998, 42011 
(August 16, 1994).
    [sbull] PM-10 State Implementation Plan for Clark County for the 
Las Vegas Valley Nonattainment Area, Nevada Division of Environmental 
Protection (June 19, 2001).

B. Do the Rules Meet the Evaluation Criteria?

    The submitted rules (building code provisions) are consistent with 
the relevant policy and guidance regarding enforceability and 
stringency and should be approved. The TSD has more information on our 
evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) and 110(k)(6) of the CAA, EPA is 
fully approving the submitted rules (building code provisions) because 
we believe they fulfill all relevant requirements. We do not think 
anyone will object to this, so we are finalizing the approval without 
proposing it in advance. However, in the Proposed Rules section of this 
Federal Register, we are simultaneously proposing approval of the same 
submitted rules (building code provisions). If we receive adverse 
comments by October 8, 2003, we will publish a timely withdrawal in the 
Federal Register to notify the public that the direct final approval 
will not take effect and we will address the comments in a subsequent 
final action based on the proposal. If we do not receive timely adverse 
comments, the direct final approval will be effective without further 
notice on November 7, 2003. This will incorporate these rules (building 
code provisions) into the federally-enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this direct final rule and if that provision 
may be severed from the remainder of the rule, EPA may adopt as final 
those provisions of the rule that are not the subject of an adverse 
comment.

III. Background Information

Why Were These Rules Submitted?

    PM-10 harms human health and the environment. Section 110(a) of the 
CAA

[[Page 52840]]

requires States to submit regulations that control PM-10 emissions. 
Table 2 lists some of the national milestones leading to the submittal 
of local agency PM-10 rules.

                Table 2.--PM-10 Nonattainment Milestones
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                  Date                                 Event
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March 3, 1978...........................  EPA promulgated a list of
                                           total suspended particulate
                                           (TSP) nonattainment areas
                                           under the Clean Air Act, as
                                           amended in 1977. 43 FR 8964;
                                           40 CFR 81.305.
July 1, 1987............................  EPA replaced the TSP standards
                                           with new PM standards
                                           applying only up to 10
                                           microns in diameter (PM-10).
                                           52 FR 24672.
November 15, 1990.......................  Clean Air Act Amendments of
                                           1990 were enacted, Pub. L.
                                           101-549, 104 Stat. 2399,
                                           codified at 42 U.S.C. 7401-
                                           7671q.
November 15, 1990.......................  PM-10 areas meeting the
                                           qualifications of section
                                           107(d)(4)(B) of the CAA were
                                           designated nonattainment by
                                           operation of law and
                                           classified as moderate
                                           pursuant to section 188(a).
                                           States are required by
                                           section 110(a) to submit
                                           rules regulating PM-10
                                           emissions in order to achieve
                                           the attainment dates
                                           specified in section 188(c).
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 7, 2003. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: July 29, 2003.
Wayne Nastri,
Regional Administrator, Region IX.

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

PART 52--[AMENDED]

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

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

Subpart DD--Nevada

0
2. Section 52.1470 is amended by adding paragraph (c)(41) to read as 
follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (41) Regulations for the following agencies were submitted on 
November 19, 2002 by the Governor's designee.
    (i) Incorporation by reference.

[[Page 52841]]

    (A) Clark County Air Quality Management Board.
    (1) Clark County Building Code, section 3708, adopted on November 
20, 1990.
    (2) City of Las Vegas Building Code, section 3708, adopted on 
November 21, 1990.
    (3) City of North Las Vegas Building Code, section 13.16.150, 
adopted on September 18, 1991.
    (4) City of Henderson Building Code, section 15.40.010, adopted on 
October 15, 1996.

[FR Doc. 03-22647 Filed 9-5-03; 8:45 am]
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