03-22647. Revisions to the Nevada State Implementation Plan, Clark County Air Quality Management Board

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

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; [e-mail].

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; [phone].

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 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

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

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:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.
• PM-10 Guideline Document, EPA-452/R-93-008.
• General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992).
• 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).
• 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 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

Date	Event
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. 7401-7671 q.
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.

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

PART 52—[AMENDED]

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

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

Subpart DD—Nevada

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

§ 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.

(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.