[Federal Register Volume 71, Number 209 (Monday, October 30, 2006)]
[Rules and Regulations]
[Pages 63250-63253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18158]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0548a; FRL-8225-5]


Revisions to the Nevada State Implementation Plan, Clark County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

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

DATES: This rule is effective on December 29, 2006 without further 
notice, unless EPA receives adverse comments by November 29, 2006. If 
we receive such comments, we will publish a timely withdrawal in the 
Federal Register to notify the public that this direct final rule will 
not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0548a, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.

[[Page 63251]]

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

FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, EPA Region IX, at 
either (415) 947-4111, or [email protected].

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

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 rule revision?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. EPA Recommendations to Further Improve the Rules
    D. Public Comment and Final Action
III. 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 dates that they 
were adopted by Clark County and submitted by Nevada.

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
           Local agency                      Rule No.               Rule title        Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
Clark Co.........................  Section 90..................  Fugitive Dust          12/17/02        01/23/03
                                                                  from Open
                                                                  Areas and
                                                                  Vacant Lots.
                                   Section 92..................  Fugitive Dust          12/17/02        01/23/03
                                                                  from Unpaved
                                                                  Parking Lots,
                                                                  Material
                                                                  Handling &
                                                                  Storage Yards,
                                                                  & Vehicle &
                                                                  Equipment
                                                                  Storage Yards.
                                   Section 93..................  Fugitive Dust          03/04/03        03/26/03
                                                                  from Paved
                                                                  Roads & Street
                                                                  Sweeping
                                                                  Equipment.
                                   Section 94..................  Permitting &           03/18/03        03/26/03
                                                                  Dust Control
                                                                  for
                                                                  Construction
                                                                  Activities.
                                                                 Construction           03/18/03        03/26/03
                                                                  Activities
                                                                  Dust Control
                                                                  Handbook.
----------------------------------------------------------------------------------------------------------------

    On September 26, 2003, these submittals from Clark County became 
complete by operation of law since EPA did not make a formal finding 
that they met the completeness criteria in 40 CFR part 51 Appendix V. 
These criteria must be met before formal EPA review may begin.

B. Are there other versions of these rules?

    We approved versions of these rules into the Nevada SIP on June 9, 
2004. See 69 Federal Register (FR) 32273. Nevada submitted the December 
17, 2002 version of Clark County--Section 93 on January 23, 2003. This 
prior submittal of Section 93 is now superseded by the March 26, 2003 
submittal that is the subject of today's action.

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

    These rules help reduce fugitive dust emitted from open areas, 
vacant lots, unpaved parking lots, material handling and storage yards, 
and vehicle and equipment storage yards. PM is entrained from disturbed 
surfaces and storage piles. Fugitive dust is also produced from 
construction activities. Section 94 provides the requirements for 
regulating and permitting construction activity fugitive dust 
emissions.
    EPA's technical support document (TSD) has more information about 
these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, these SIP rules must be enforceable (see section 110(a) 
of the Act), must meet Reasonably Available Control Measure (RACM) 
requirements for PM nonattainment areas (see section 189(a)), and must 
not relax existing requirements (see sections 110(l) and 193). Clark 
County regulates a serious PM nonattainment area (see 40 CFR part 81); 
so, these fugitive dust rules must fulfill Best Available Control 
Measure (BACM) requirements of section 189(b).
    We have listed below the guidance and policy documents that we used 
to evaluate the rules for enforceability, RACM, and BACM requirements.
    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations; Clarification to Appendix D of November 24, 1987 Federal 
Register Notice,'' (Blue Book), notice of availability published in the 
May 25, 1988 Federal Register.
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' at 57 FR 13498, April 16, 1992.
    5. ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' at 57 FR 18070, April 28, 1992.
    6. General Preamble for the Implementation of Title I of the Clean 
Air Act Amendments of 1990,'' at 59 FR 41998, August 16, 1994.
    The Clark County PM-10 plan made several commitments for revisions 
to the fugitive dust regulations. EPA adopted these commitments into 
the SIP with our June 9, 2004 approval of the PM-10

[[Page 63252]]

plan. Two of these commitments were addressed with the current 
submittals from Clark Co. The first commitment concerned reviewing and 
developing as needed an alternative fugitive dust test method for 
Section 94 (chapter 4.8.2.7 commitment). The second commitment 
concerned several revisions to Clark County fugitive dust regulations 
concerning Dust Mitigation Plans, prohibition of dust over property 
lines, and equipment prohibitions on paved roads (chapter 4.8.2.9 
commitment). The TSD summarizes these commitments and the actions taken 
by Clark Co. to meet them.

B. Do the rules meet the evaluation criteria?

    We believe these rules are consistent with the relevant policy and 
guidance regarding enforceability, RACM, and SIP relaxations. We have 
determined that the SIP-approved versions of these rules meet the Act's 
BACM requirements when we approved the Clark County PM-10 Plan. See 69 
FR 32273, June 9, 2004. The submitted rules do not relax their BACM 
requirements. Also, we find that Clark Co. met the PM-10 plan 
commitments described in chapters 4.8.2.7 and 4.8.2.9. The TSD provides 
more information on our evaluation.

C. EPA Recommendations to Further Improve the Rules

    We have no recommendations.

D. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, EPA is fully 
approving the submitted rules because we believe they fulfill all 
relevant requirements. We do not think anyone will object to this 
approval, so we are finalizing it without proposing it in advance. 
However, in the Proposed Rules section of this Federal Register, we are 
simultaneously proposing approval of the same submitted rules. If we 
receive adverse comments by November 29, 2006, 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 December 29, 2006. This will incorporate 
these rules into the federally enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 29, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2) of the CAA.)

List of Subjects in 40 CFR Part 52

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

    Dated: July 27, 2006.
Wayne Nastri,
Regional Administrator, Region IX.

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

[[Page 63253]]

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 paragraphs (c)(60) and (c)(61) 
to read as follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (60) The following plan revision was submitted on January 23, 2003, 
by the Governor's designee.
    (i) Incorporation by reference.
    (A) Clark County Department of Air Quality and Environmental 
Management.
    (1) Sections 90 and 92, adopted June 22, 2000 by the Clark County 
Board of Commissioners, and amended on December 17, 2002.
    (61) The following plan revision was submitted on March 26, 2003, 
by the Governor's designee.
    (i) Incorporation by reference.
    (A) Clark County Department of Air Quality and Environmental 
Management.
    (1) Section 93, adopted on June 22, 2000 by the Clark County Board 
of Commissioners and amended on March 4, 2003; Section 94, adopted on 
June 22, 2000 by the Clark County Board of Commissioners and amended on 
March 18, 2003; and, the ``Construction Activities Dust Control 
Handbook'', adopted June 22, 2000 by the Clark County Board of 
Commissioners and amended on March 18, 2003.
* * * * *

 [FR Doc. E6-18158 Filed 10-27-06; 8:45 am]
BILLING CODE 6560-50-P