Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Nevada; Redesignation of Clark County to Attainment for the 1997 8-Hour Ozone Standard, 67600-67613 [2012-27562]
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matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds, New Source
Review, Minor New Source Review,
Permitting, Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq
Dated: October 19, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012–27566 Filed 11–9–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R09–OAR–2012–0792;9750–9]
Approval and Promulgation of
Implementation Plans and Designation
of Areas for Air Quality Planning
Purposes; State of Nevada;
Redesignation of Clark County to
Attainment for the 1997 8-Hour Ozone
Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve,
as a revision of the Nevada state
implementation plan, the State’s plan
for maintaining the 1997 8-hour ozone
standard in Clark County for ten years
beyond redesignation, and the related
motor vehicle emissions budgets,
because they meet the applicable
requirements for such plans and
budgets. EPA is also proposing to
approve a request from the Nevada
Division of Environmental Protection to
redesignate the Clark County ozone
nonattainment area to attainment of the
1997 8-hour ozone National Ambient
Air Quality Standard because the
request meets the statutory requirements
for redesignation under the Clean Air
Act.
DATES: Comments must be received on
or before December 13, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R09–OAR–2012–0792, by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. Email: r9_airplanning@epa.gov.
3. Fax: 415–947–3579.
4. Mail or Deliver: Ginger Vagenas
(AIR–2), U.S. Environmental Protection
Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105–3901.
Deliveries are only accepted during the
Regional Office’s normal hours of
operation.
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SUMMARY:
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Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://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
https://www.regulations.gov or email.
https://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
email directly to EPA, your email
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: Generally, documents in the
docket for this action are 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 at
www.regulations.gov, some information
may be publicly available only at the
hard copy location (e.g., copyrighted
material, large maps), 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:
Ginger Vagenas, Air Planning Office
(AIR–2), U.S. Environmental Protection
Agency, Region IX, (415) 972–3964,
vagenas.ginger@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
Table of Contents
I. Summary of Today’s Proposed Action
II. Background
III. Procedural Requirements for Adoption
and Submittal of SIP Revisions
IV. Substantive Requirements for
Redesignation
V. Evaluation of the State’s Redesignation
Request for the Clark County 8-Hour
Ozone Nonattainment Area
A. Determination That the Area Has
Attained the Applicable NAAQS
B. The Area Must Have a Fully Approved
SIP Meeting Requirements Applicable
for Purposes of Redesignation Under
Section 110 and Part D
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1. Basic SIP Requirements Under CAA
Section 110
2. Part D Requirements
a. Introduction
b. Emissions Inventory
c. Permits for New and Modified Major
Stationary Sources
d. Compliance With Section 110(a)(2)
e. Conformity Requirements
C. The Area Must Show the Improvement
in Air Quality Is Due to Permanent and
Enforceable Emissions Reductions
D. The Area Must Have a Fully Approved
Maintenance Plan Under CAA Section
175A
1. Attainment Inventory
2. Maintenance Demonstration
3. Monitoring Network
4. Verification of Continued Attainment
5. Contingency Provisions
6. Subsequent Maintenance Plan Revisions
7. Motor Vehicle Emissions Budgets
VI. Proposed Action and Request for Public
Comment
VII. Statutory and Executive Order Reviews
I. Summary of Today’s Proposed Action
EPA is proposing to take several
related actions. First, under Clean Air
Act (CAA or ‘‘Act’’) section 110(k)(3),
EPA is proposing to approve a submittal
from the Nevada Division of
Environmental Protection (NDEP) dated
April 11, 2011 of Clark County’s Ozone
Redesignation Request and
Maintenance Plan (March 2011) (‘‘Clark
County Ozone Maintenance Plan’’ or
‘‘Ozone Maintenance Plan’’) as a
revision to the Nevada state
implementation plan (SIP).
In connection with the Clark County
Ozone Maintenance Plan, EPA finds
that the maintenance demonstration
showing how the area will continue to
attain the 1997 8-hour ozone national
ambient air quality standard (NAAQS)
for 10 years beyond redesignation (i.e.,
through 2022) and the contingency
provisions describing the actions that
Clark County will take in the event of
a future monitored violation meet all
applicable requirements for
maintenance plans and related
contingency provisions in CAA section
175A. EPA is also proposing to approve
the motor vehicle emissions budgets
(MVEBs) in the Clark County Ozone
Maintenance Plan because we find they
meet the applicable transportation
conformity requirements under 40 CFR
93.118(e).
Second, under CAA section
107(d)(3)(D), EPA is proposing to
approve NDEP’s request that
accompanied the submittal of the
maintenance plan to redesignate the
Clark County 8-hour ozone
nonattainment area to attainment for the
1997 8-hour ozone NAAQS. We are
doing so based on our conclusion that
the area has met the five criteria for
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redesignation under CAA section
107(d)(3)(E). Our conclusion in this
regard is in turn based on our proposed
determination that the area has attained
the 1997 8-hour ozone NAAQS, that
relevant portions of the Nevada SIP are
fully approved, that the improvement in
air quality is due to permanent and
enforceable reductions in emissions,
that Nevada has met all requirements
applicable to the Clark County 8-hour
ozone nonattainment area with respect
to section 110 and part D of the CAA,
and based on our proposed approval as
part of this action of the Clark County
Ozone Maintenance Plan.
II. Background
Ground-level ozone is generally not
emitted directly by sources. Rather,
directly-emitted oxides of nitrogen
(NOX) and volatile organic compounds
(VOC) react in the presence of sunlight
to form ground-level ozone, as a
secondary pollutant, along with other
secondary compounds. NOX and VOC
are ‘‘ozone precursors.’’ Reduction of
peak ground-level ozone concentrations
is typically achieved through
controlling VOC and NOX emissions.
In 1971, under section 109 of the Act,
as amended in 1970, EPA promulgated
the original NAAQS for several
pervasive air pollutants, including
photochemical oxidants. NAAQS
represent concentration levels the
attainment and maintenance of which,
allowing for an adequate margin of
safety, EPA has determined to be
requisite to protect public health
(‘‘primary’’ NAAQS) and welfare
(‘‘secondary’’ NAAQS).
In 1978, EPA designated the Las
Vegas Valley (hydrographic area No.
212) as a nonattainment area for the
photochemical oxidant NAAQS. See 43
FR 8962 (March 3, 1978). In 1979, EPA
revised the NAAQS from an hourly
average of 0.08 parts per million (ppm)
oxidant to an hourly average of 0.12
ppm ozone. See 44 FR 8202 (February
8, 1979). The nonattainment designation
for Las Vegas Valley for photochemical
oxidant carried over to the 1-hour ozone
NAAQS.
During the 1980s, Clark County
adopted a number of rules and prepared
a number of nonattainment plans to
address planning requirements under
the CAA, as amended in 1977. NDEP
submitted these rules and plans to EPA
at various times, and EPA approved a
number of them into the Nevada SIP.
Among the rules approved by EPA as
revisions to the Nevada SIP as part of
the ozone control strategy in Las Vegas
Valley are Clark County air pollution
rules section 33, which relates to
chlorine in chemical processes);
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sections 50, 51, and 52, which relate to
storage and distribution of petroleum
products; and section 60, which relates
to evaporation and leakage. In 1986, in
light of the approved control strategy
and monitored levels below the
NAAQS, EPA redesignated Las Vegas
Valley to attainment for the 1-hour
ozone NAAQS. See 51 FR 41788
(November 19, 1986).
In 1997, EPA revised the NAAQS for
ozone, setting it at 0.08 ppm averaged
over an 8-hour time frame (‘‘1997 8-hour
ozone standard’’). EPA set the 1997 8hour ozone standard based on scientific
evidence demonstrating that ozone
causes adverse health effects at lower
ozone concentrations and over longer
periods of time, than was understood
when the pre-existing 1-hour ozone
standard was set. EPA determined that
the 1997 8-hour standard would be
more protective of human health,
especially for children and adults who
are active outdoors, and individuals
with a pre-existing respiratory disease,
such as asthma.1
In 2004, EPA designated areas of the
country with respect to the 1997 8-hour
ozone NAAQS. See 69 FR 23858 (April
30, 2004). Under EPA’s ‘‘Phase 1’’
implementation rule for the 1997 8-hour
ozone standard (69 FR 23951, April 30,
2004), an area was classified under
subpart 2 based on its 8-hour ozone
design value (i.e., the 3-year average
annual fourth-highest daily maximum 8hour average ozone concentration at the
worst-case monitoring site in the area or
in its immediate downwind environs), if
it had a 1-hour ozone design value 2 at
the time of designation at or above 0.121
ppm. All other areas were covered
under subpart 1 based on their 8-hour
ozone design values 3 (69 FR 23951).
Clark County was designated as a
‘‘subpart 1’’ ozone nonattainment area
by EPA on April 30, 2004 based on air
quality monitoring data from 2001–
2003. The designation became effective
on June 15, 2004. On September 17,
2004, EPA reduced the geographic
extent of the ozone nonattainment area
to encompass a portion of, but not all of,
1 On March 27, 2008 (73 FR 16436), EPA
promulgated a revised 8-hour ozone standard of
0.075 ppm (the 2008 8-hour ozone standard), and
on May 21, 2012, EPA designated the entire state
of Nevada unclassifiable/attainment for the 2008 8hour ozone standard (77 FR 30088). This
rulemaking relates only to the 1997 8-hour ozone
standard and does not relate to the 2008 8-hour
ozone standard.
2 The design value for the 1-hour ozone standard
is the fourth-highest daily maximum 1-hour ozone
concentration over a three-year period at the worstcase monitoring site in the area.
3 The design value for the 8-hour standard is the
three-year average of the annual fourth-highest
daily maximum 8-hour ozone concentration at the
worst-case monitoring site in the area.
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Clark County.4 See 69 FR 55956
(September 17, 2004), 70 FR 71612
(November 29, 2005), and 40 CFR
81.329.
On December 22, 2006, the U.S. Court
of Appeals for the District of Columbia
Circuit (DC Circuit) vacated EPA’s Phase
1 implementation rule for the 1997 8hour ozone standard (69 FR 23951,
April 30, 2004). South Coast Air Quality
Management Dist. v. EPA, 472 F.3d 882
(DC Cir. 2006). On June 8, 2007, in
response to several petitions for
rehearing, the DC Circuit Court (Court)
clarified that the Phase 1 rule was
vacated only for those parts of the rule
that had been successfully challenged.
The June 8, 2007, decision left intact the
Court’s rejection of EPA’s reasons for
implementing the 8-hour ozone
standard in certain nonattainment areas
under subpart 1 in lieu of subpart 2 of
the CAA.
On May 14, 2012, in response to the
Court’s vacating of the provision of
EPA’s Phase 1 implementation rule for
the 1997 8-hour ozone standard that
placed certain nonattainment areas,
including Clark County solely under
subpart 1, EPA classified Clark County
as a marginal ozone nonattainment area
under subpart 2 of the CAA (77 FR
28424).
On July 28, 2008, NDEP submitted the
8-hour Ozone Early Progress Plan for
Clark County, Nevada (June 2008)
(‘‘Clark County Ozone EPP’’) to EPA as
a revision to the Nevada SIP. The
purpose of the Clark County Ozone EPP
was to establish motor vehicle
emissions budgets (MVEBs) consistent
with progress towards attainment of the
1997 8-hour ozone standard in advance
of completion and submittal of an
attainment demonstration. The Clark
County EPP established MVEBs of 64.2
and 76.1 tons per day (ozone season) for
VOC and NOX, respectively, for 2008.
On May 5, 2009, EPA found the MVEBs
in the Clark County EPP adequate for
the purposes of transportation
conformity. See 74 FR 22738 (May 14,
2009). Since the effective date of EPA’s
adequacy finding (i.e., May 29, 2009),
the applicable metropolitan planning
organization (MPO), i.e., the Regional
Transportation Commission of Southern
Nevada (RTC), and the U.S. Department
4 The boundaries of the Clark County ozone
nonattainment area are defined in 40 CFR 81.329.
Specifically, the area is defined as: ‘‘That portion
of Clark County that lies in hydrographic areas
164A, 164B, 165, 166, 167, 212, 213, 214, 216, 217,
and 218 but excluding the Moapa River Indian
Reservation and the Fort Mojave Indian
Reservation.’’ The area includes a significant
portion of the unincorporated portions of central
and southern Clark County, as well as the cities of
Las Vegas, Henderson, North Las Vegas, and
Boulder City.
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of Transportation have been required to
use these budgets in transportation
conformity analyses for regional
transportation plans, programs and
projects.
On March 29, 2011, EPA determined
that the Clark County 8-hour ozone
nonattainment area had attained the
1997 8-hour ozone NAAQS, based on
complete, quality-assured, and certified
ambient air monitoring data that
showed the area monitored attainment
of the 1997 8-hour ozone NAAQS for
the 2007–2009 monitoring period (76 FR
17343). As a result, the obligation for
the State of Nevada to submit an
attainment demonstration and
associated reasonably available control
measures (RACM), a reasonable further
progress (RFP) plan, contingency
measures and other planning
requirements related to attainment of
the 1997 8-hour ozone NAAQS was
suspended until such time as: the area
is redesignated to attainment, at which
time the requirements no longer apply;
or EPA determines that the area has
violated the 1997 8-hour ozone NAAQS.
See 40 CFR 51.918. In this action, we
are updating the determination of
attainment to account for more recent
ozone monitoring data consistent with
the applicable criterion for
redesignation under CAA section
107(d)(3)(E)(i).
Lastly, on April 11, 2011, NDEP
submitted the Clark County Ozone
Maintenance Plan and requested that
EPA redesignate the Clark County 8hour ozone nonattainment area to
attainment for the 1997 8-hour ozone
standard. We are proposing action today
on the NDEP’s April 11, 2011
redesignation request and submittal of
the Clark County Ozone Maintenance
Plan.
III. Procedural Requirements for
Adoption and Submittal of SIP
Revisions
Section 110(l) of the Act requires
States to provide reasonable notice and
public hearing prior to adoption of SIP
revisions. In this action, we are
proposing action on NDEP’s April 11,
2011 submittal of the Clark County
Ozone Maintenance Plan as a revision to
the Nevada SIP.
Appendix C of the Clark County
Ozone Maintenance Plan documents the
public review process followed by Clark
County in adopting the plan prior to
transmittal to NDEP for subsequent
submittal to EPA as a revision to the
Nevada SIP. The documentation in
appendix C provides evidence that
reasonable notice of a public hearing
was provided to the public and that a
public hearing was conducted prior to
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adoption. Specifically, notice of the
availability of, and opening of a 30-day
comment period on, the draft ozone
maintenance plan was published on
December 12, 2010 in a newspaper of
general circulation within the Las Vegas
area and on the County’s Web page. No
comments were submitted.
On February 1, 2011, the Clark
County Board of Commissioners set a
public hearing for March 15, 2011 to
consider and approve the Clark County
Ozone Maintenance Plan. The
announcement of the public hearing
was subsequently published on the
County’s Web page. On March 15, 2011,
the Clark County Board of
Commissioners adopted the Clark
County Ozone Maintenance Plan at the
close of the public hearing. Following
adoption, Clark County Department of
Air Quality (DAQ) forwarded the plan to
NDEP, the Governor of Nevada’s
designee for SIP matters, and NDEP then
submitted the plan as a revision to the
Nevada SIP to EPA for approval on
April 11, 2011.
Based on the documentation
contained in appendix C of the plan, we
find that the submittal of the Clark
County Ozone Maintenance Plan as a
SIP revision satisfies the procedural
requirements of section 110(l) of the Act
for revising SIPs.
IV. Substantive Requirements for
Redesignation
The CAA establishes the requirements
for redesignation of a nonattainment
area to attainment. Specifically, section
107(d)(3)(E) allows for redesignation
provided that the following criteria are
met: (1) EPA determines that the area
has attained the applicable NAAQS; (2)
EPA has fully approved the applicable
implementation plan for the area under
section 110(k); (3) EPA determines that
the improvement in air quality is due to
permanent and enforceable reductions
in emissions resulting from
implementation of the applicable SIP,
applicable Federal air pollution control
regulations, and other permanent and
enforceable reductions; (4) EPA has
fully approved a maintenance plan for
the area as meeting the requirements of
CAA section 175A; and (5) the State
containing such area has met all
requirements applicable to the area
under section 110 and part D of the
CAA. Section 110 identifies a
comprehensive list of elements that SIPs
must include, and part D establishes the
SIP requirements for nonattainment
areas. Part D is divided into six
subparts. The generally-applicable
nonattainment SIP requirements are
found in part D, subpart 1, and the
ozone-specific nonattainment SIP
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requirements are found in part D,
subpart 2.
EPA provided guidance on
redesignations in a document entitled,
‘‘State Implementation Plans; General
Preamble for the Implementation of
Title I of the Clean Air Act Amendments
of 1990,’’ published in the Federal
Register on April 16, 1992 (57 FR
13498), and supplemented on April 28,
1992 (57 FR 18070) (referred to herein
as the ‘‘General Preamble’’). Another
relevant EPA guidance document
includes ‘‘Procedures for Processing
Requests to Redesignate Areas to
Attainment,’’ Memorandum from John
Calcagni, Director, Air Quality
Management Division, EPA Office of Air
Quality Planning and Standards,
September 4, 1992 (referred to herein as
the ‘‘Calcagni memo’’).
For the reasons set forth below in
section V of this document, we propose
to approve NDEP’s request for
redesignation of the Clark County 8hour ozone nonattainment area to
attainment for the 1997 8-hour ozone
NAAQS based on our conclusion that
all of the criteria under CAA section
107(d)(3)(E) have been satisfied.
V. Evaluation of the State’s
Redesignation Request for the Clark
County 8-Hour Ozone Nonattainment
Area
A. Determination That the Area Has
Attained the Applicable NAAQS
CAA section 107(d)(3)(E)(i) requires
that we determine that the area has
attained the NAAQS. EPA generally
makes the determination of whether an
area’s air quality meets the ozone
NAAQS based upon the most recent
three years of complete, quality-assured
data gathered at established State and
Local Air Monitoring Stations (SLAMS)
in the nonattainment area and entered
into the EPA Air Quality System (AQS)
database. Data from air monitors
operated by state/local agencies in
compliance with EPA monitoring
requirements must be submitted to
AQS. Heads of monitoring agencies
annually certify that these data are
accurate to the best of their knowledge.
Accordingly, EPA relies primarily on
data in AQS when determining the
attainment status of areas. See 40 CFR
50.10; 40 CFR part 50, appendix I; 40
CFR part 53; 40 CFR part 58, appendices
A, C, D and E. All data are reviewed to
determine the area’s air quality status in
accordance with 40 CFR part 50,
appendix I.
Under EPA regulations at 40 CFR part
50, the 1997 8-hour ozone standard is
attained at a site when the 3-year
average of the annual fourth-highest
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daily maximum 8-hour average ozone
concentrations at an ozone monitor is
less than or equal to 0.08 ppm. See 40
CFR 50.10. This 3-year average is
referred to as the design value. When
the design value is less than or equal to
0.084 ppm (based on the rounding
convention in 40 CFR part 50, appendix
I) at each monitoring site within the
area, then the area is meeting the
NAAQS. The data completeness
requirement is met when the three-year
average percent of days with valid
ambient monitoring data is at least 90%,
and no single year has less than 75%
data completeness as determined in
appendix I of 40 CFR part 50.
The Clark County Department of Air
Quality (DAQ), (previously known as
Clark County Department of Air Quality
and Environmental Management, or
DAQEM) is responsible for monitoring
ambient air quality within Clark County.
DAQ submits monitoring network plan
reports to EPA on an annual basis.
These reports discuss the status of the
air monitoring network, as required
under 40 CFR part 58. Beginning in
2007, EPA has reviewed these annual
plans for compliance with the
applicable reporting requirements in 40
CFR 58.10. With respect to ozone, we
have found DAQ’s annual network
plans to meet the applicable
requirements under 40 CFR part 58. See
EPA letters to DAQ concerning DAQ’s
annual network plan reports for 2010
and 2011, included in the docket for
this rulemaking. Furthermore, we
concluded in our Technical System
Audit Report (February 2010) that Clark
County DAQ’s ambient air monitoring
network currently meets or exceeds the
requirements for the minimum number
of monitoring sites designated as
SLAMS for all of the criteria pollutants.
Also, DAQ annually certifies that the
data it submits to AQS are complete and
quality-assured. See, e.g., the letter
dated February 28, 2012, from Lewis
Wallenmeyer, Director, DAQ, to Jared
Blumenfeld, EPA Region IX Regional
Administrator.
Clark County DAQ operated 13 ozone
SLAMS monitoring sites during the
2009–2011 period 5 within the Clark
County ozone nonattainment area: Apex
(Apex Valley), Boulder City (City of
Boulder City), Craig Road (City of North
Las Vegas), J.D. Smith School (City of
North Las Vegas), Jean (City of Jean,
south of Las Vegas), Jerome Mack (near
North Las Vegas Airport), Joe Neal
(northwest Las Vegas), Lone Mountain
(northwest Las Vegas), Orr School
(central-southeast Las Vegas), Paul
Meyer Park (southwest Las Vegas), Palo
Verde School (west Las Vegas), Walter
Johnson (west Las Vegas), and
Winterwood (southeast Las Vegas). All
13 sites have monitored ozone
concentrations on a continuous basis
using ultraviolet absorption monitors.6
The spatial scale and monitoring
objective of most of DAQ’s ozone
monitoring sites are ‘‘neighborhood’’
and ‘‘population exposure,’’
respectively. The exceptions are the
Apex and Jean sites, whose spatial scale
and monitoring objective is ‘‘regional’’
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and ‘‘regional transport,’’ respectively,
and the Joe Neal site, whose spatial
scale is ‘‘neighborhood’’ and monitoring
objective is ‘‘highest concentration.’’ See
‘‘Clark County Department of Air
Quality and Environmental
Management—Annual Network Plan
Report (June 2011).’’
Consistent with the requirements
contained in 40 CFR part 50, EPA has
reviewed the ozone ambient air
monitoring data for the monitoring
period from 2009 through 2011
collected at the monitoring sites
discussed above, as recorded in AQS
and summarized in table 1, and found
that the data meet our completeness
criteria, except at the discontinued or
newly-operating monitoring sites.7
Table 1 summarizes the site-specific
annual fourth-high daily maximum 8hour ozone concentrations and 3-year
ozone design values for all monitoring
sites within the Clark County 8-hour
ozone nonattainment area for the period
of 2009–2011. As shown in table 1, the
design value for the 2009–2011 period
was less than 0.084 ppm at all of the
monitors. Therefore, we are proposing
to determine, based on the complete,
quality-assured data for 2009–2011, that
the Clark County 8-hour ozone
nonattainment area has attained the
1997 8-hour ozone standard. There are
ten ozone monitors currently operating
in the nonattainment area. Preliminary
SLAMS data for 2012 from these
monitors, which are summarized in
table 2, are also consistent with
continued attainment.
TABLE 1—SUMMARY OF AMBIENT DATA COLLECTED WITHIN CLARK COUNTY 8-HOUR OZONE NONATTAINMENT AREA,
2009–2011
2009 4th
highest
Site code
Craig Road ...........................................................................
Apex .....................................................................................
Paul Meyer ...........................................................................
Walter Johnson ....................................................................
Lone Mountain .....................................................................
Palo Verde ...........................................................................
Joel Neal ..............................................................................
Winterwood ..........................................................................
Jerome Mack ** ....................................................................
Boulder City .........................................................................
Jean .....................................................................................
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Monitor
32–003–0020
32–003–0022
32–003–0043
32–003–0071
32–003–0072
32–003–0073
32–003–0075
32–003–0538
32–003–9540
32–003–0601
32–003–1019
5 As allowed by 40 CFR 58.14, Clark County DAQ
has periodically modified its monitoring network
and therefore not all monitors operated over the
entire 2009–2011 period. In 2010, the Craig Road,
Lone Mountain, and Orr monitors were
discontinued. EPA has approved the
discontinuation of these sites (see letter dated
October 23, 2012 from Matthew Lakin, Manager, Air
Quality Analysis Office, EPA Region IX to Mike
Sword, Engineering Manager, Clark County DAQ).
Clark County’s monitoring network has exceeded
the number of required monitors throughout the
referenced time period.
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0.072
0.070
0.071
0.074
0.072
0.072
0.074
0.070
N/A
0.071
0.072
6 DAQ operates Federal equivalent method (FEM)
monitors for ozone. Specifically, API 400 Series
ultraviolet absorption monitors. See the Clark
County DAQ ‘‘Annual Network Plan Report’’, page
12, June 2011. These monitoring devices have an
EPA designation number EQOA–0992–087. See
EPA ‘‘List of Designated Reference and Equivalent
Methods’’, page 28, June 6, 2012, available at:
https://www.epa.gov/ttn/amtic/criteria.html.
7 Also, the data from the Boulder City ozone
monitor did not meet EPA’s completeness criteria
during year 2010 because of a temporary shutdown
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2010 4th
highest
(*)
0.068
0.070
0.073
(*)
0.071
0.074
0.068
N/A
0.069
0.074
2011 4th
highest
N/A
0.070
0.078
0.077
N/A
0.077
0.077
0.073
0.073
0.070
0.074
2009–2011
average (ppm)
N/A
0.069
0.073
0.074
N/A
0.073
0.075
0.070
N/A
0.070
0.073
(from November 2009 through March 2010) (i.e., the
low ozone season) due to station repairs. This
temporary shutdown was approved by EPA. See
page 71 of the Clark County DAQ Annual Network
Plan Report, June 2010. In addition, the data from
the Apex ozone monitor likewise did not meet EPA
completeness criteria during 2010 and 2011 but
EPA has approved a shortened ozone monitoring
season at the Apex site. See letter dated March 8,
2012 from Matthew Lakin, Manager, Air Quality
Analysis Office, EPA Region IX to Mike Sword,
Engineering Manager, Clark County DAQ.
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TABLE 1—SUMMARY OF AMBIENT DATA COLLECTED WITHIN CLARK COUNTY 8-HOUR OZONE NONATTAINMENT AREA,
2009–2011—Continued
2009 4th
highest
Monitor
Site code
Orr ........................................................................................
J.D. Smith ............................................................................
32–003–1021
32–003–2002
2010 4th
highest
0.071
0.072
(*)
0.068
2011 4th
highest
N/A
0.072
2009–2011
average (ppm)
N/A
0.070
* Monitor discontinued. N/A = not available.
** 2011 was the first full year of operation of the Jerome Mack ozone monitor.
for adequate funding, staff, and
TABLE 2—PRELIMINARY 4TH HIGH
DAILY MAXIMUM 8-HOUR OZONE associated resources necessary to
implement its requirements; and
CONCENTRATIONS FOR 2012 a
provides the necessary assurances that
the State maintains responsibility for
ensuring that the CAA requirements are
satisfied in the event that Clark County
is unable to meet its CAA obligations.8
On numerous occasions over the past
0.076
0.077 38 years, NDEP has submitted and we
0.075 have approved provisions addressing
0.078 the basic CAA section 110 provisions.
0.075 There are no outstanding or
0.074 disapproved applicable SIP submittals
0.073 with respect to the Clark County portion
0.077 of the SIP that prevent redesignation of
4th
highest
value
(ppm)
Monitor
Site code
Apex ....................
Paul Meyer .........
Walter Johnson ...
Palo Verde ..........
Joel Neal .............
Winterwood .........
Jerome Mack ......
Boulder City ........
Jean ....................
J.D. Smith ...........
32–003–0022
32–003–0043
32–003–0071
32–003–0073
32–003–0075
32–003–0538
32–003–0540
32–003–0601
32–003–1019
32–003–2002
0.077
0.076
a The
data in this table are from AQS Preliminary Design Value Report. Report Date:
Oct. 11, 2012. See docket.
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B. The Area Must Have a Fully
Approved SIP Meeting Requirements
Applicable for Purposes of
Redesignation Under Section 110 and
Part D
Section 107(d)(3)(E)(ii) and (v) require
EPA to determine that the area has a
fully approved applicable SIP under
section 110(k) that meets all applicable
requirements under section 110 and part
D for the purposes of redesignation.
1. Basic SIP Requirements Under CAA
Section 110
Section 110(a)(2) sets forth the general
elements that a SIP must contain in
order to be fully approved. Although
section 110(a)(2) was amended in 1990,
a number of the requirements did not
change in substance, and therefore, EPA
believes that the pre-amendment EPAapproved SIP met these requirements in
Clark County with respect to ozone. As
to those requirements that were
amended, (see 57 FR 27936 and 27939,
June 23, 1992), many are duplicative of
other requirements of the Act. EPA has
analyzed the Nevada SIP and
determined that it is consistent with the
requirements of amended section
110(a)(2). The Clark County portion of
the approved Nevada SIP contains
enforceable emission limitations;
requires monitoring, compiling and
analyzing of ambient air quality data;
requires preconstruction review of new
or modified stationary sources; provides
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8 The applicable SIP for NDEP and Clark County
may be found at https://yosemite.epa.gov/r9/
r9sips.nsf/allsips?readform&state=Nevada. We note
that SIPs must be fully approved only with respect
to applicable requirements for purposes of
redesignation in accordance with section
107(d)(3)(E)(ii). Thus, for example, CAA section
110(a)(2)(D) requires that SIPs contain certain
measures to prevent sources in a state from
significantly contributing to air quality problems in
another state. However, the section 110(a)(2)(D)
requirements for a state are not linked with a
particular nonattainment area’s designation and
classification in that state. EPA believes that the
requirements linked with a particular
nonattainment area’s designation and classification
are the relevant measures to evaluate in reviewing
a redesignation request. The transport SIP submittal
requirements, where applicable, continue to apply
to a state regardless of the designation of any one
particular area in the state.
Thus, we do not believe that these requirements
should be construed to be applicable requirements
for purposes of redesignation. In addition, EPA
believes that the other section 110 elements not
connected with nonattainment plan submissions
and not linked with an area’s attainment status are
not applicable requirements for purposes of
redesignation. The State will still be subject to these
requirements after the Clark County ozone planning
area is redesignated. The section 110 and part D
requirements, which are linked with a particular
area’s designation and classification, are the
relevant measures to evaluate in reviewing a
redesignation request. This policy is consistent with
EPA’s existing policy on applicability of conformity
(i.e., for redesignations) and oxygenated fuels
requirement. See Reading, Pennsylvania, proposed
and final rulemakings 61 FR 53174–53176 (October
10, 1996), 62 FR 24816 (May 7, 1997); ClevelandAkron-Lorain, Ohio, final rulemaking 61 FR 20458
(May 7, 1996); and Tampa, Florida, final
rulemaking 60 FR 62748 (December 7, 1995). See
also the discussion of this issue in the Cincinnati
redesignation 65 FR 37890 (June 19, 2000), in the
Pittsburgh redesignation 66 FR 50399 (October 19,
2001), and in the Los Angeles redesignation 72 FR
6986 (February 14, 2007) and 72 FR 26718 (May 11,
2007). EPA believes that section 110 elements not
linked to the area’s nonattainment status are not
applicable for purposes of redesignation.
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the Clark County 8-hour ozone
nonattainment area for the 1997 8-hour
ozone standard.9 Therefore, we propose
to conclude that NDEP and Clark
County have met all SIP requirements
for Clark County applicable for purposes
of redesignation under section 110 of
the CAA (General SIP Requirements).
2. Part D Requirements
a. Introduction
The CAA contains two sets of
provisions, subparts 1 and 2, that
address planning and emission control
requirements for ozone nonattainment
areas. Both of these subparts are found
in title I, part D of the CAA; sections
171–179 and sections 181–185,
respectively. Subpart 1 contains general,
less prescriptive requirements for all
nonattainment areas of any pollutant,
including ozone, governed by a NAAQS.
Subpart 2 contains additional, more
specific requirements for ozone
nonattainment areas classified under
subpart 2.
The applicable subpart 1
requirements are contained in sections
172(c)(1)–(9) and 176 of the CAA. Under
subpart 1, with respect to the Clark
County 8-hour ozone nonattainment
area, the State of Nevada is required to
submit SIP revisions that provide for:
• Implementation of all reasonably
available control measures (RACM),
including, at a minimum, reasonably
available control technology for existing
sources and attainment of the standard
(section 172(c)(1));
• Reasonable further progress (section
172(c)(2));
9 Recently, EPA took final limited approval and
limited disapproval on updated new source review
(NSR) rules adopted by Clark County and submitted
as a revision to the Nevada SIP (77 FR 64039,
October 18, 2012) and issued a partial approval and
partial disapproval of Nevada’s ‘‘infrastructure’’ SIP
for the 1997 8-hour ozone NAAQS (77 FR 64737,
October 23, 2012). While these two final rules are
not full approvals, they do not represent an obstacle
to redesignation of the Clark County 8-hour ozone
nonattainment area because EPA’s rationale for
finding that the State has met the requirements of
CAA section 107(d)(3)(E)(ii) and (v) does not rely
on a fully-approved nonattainment NSR program,
and because the ‘‘infrastructure’’ SIP elements that
EPA disapproved are not related to the
nonattainment SIP requirements for the Clark
County 8-hour ozone nonattainment area and thus
are not relevant for the purposes of redesignation.
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• A comprehensive, accurate, current
inventory of actual emissions from all
sources of the relevant pollutant or
pollutants in the area (section 172(c)(3));
• Identification and quantification of
the emissions, if any, of any such
pollutants which will be allowed in
accordance with section 173(a)(1)(B)
(i.e., new or modified stationary sources
located in established economic
development zones) (section 172(c)(4));
• Permits for the construction and
operation of new and modified major
stationary sources in the nonattainment
area (section 172(c)(5));
• Enforceable emission limitations as
may be necessary or appropriate to
provide for attainment of such standard
in such area by the applicable
attainment date (section 172(c)(6));
• Compliance with section 110(a)(2)
of the Act (section 172(c)(7));
• Use of equivalent modeling
emission inventory, and planning
procedures if approved by EPA (section
172(c)(8));
• Contingency measures (section
172(c)(9)); and
• Interagency consultation and
enforceability for the purposes of
transportation conformity (section
176(c)(5) and 40 CFR 51.390).
As noted above, EPA determined that
the Clark County 8-hour ozone
nonattainment area attained the 1997 8hour ozone NAAQS based on 2007–
2009 ozone data (76 FR 17343, March
29, 2011), and thereby suspended,
under 40 CFR 51.918, the obligation on
the State of Nevada to submit an
attainment demonstration and
associated reasonably available control
measures (RACM), a reasonable further
progress (RFP) plan, contingency
measures and other planning
requirements related to attainment of
the 1997 8-hour ozone NAAQS until
such time as: the area is redesignated to
attainment, at which time the
requirements no longer apply; or EPA
determines that the area has violated the
8-hour ozone NAAQS. As such, the
State’s compliance status with the
attainment-related SIP requirements
under subpart 1 is not relevant for the
purposes of evaluating the State’s
redesignation request. In addition, we
note that the State has not sought to
exercise the options available under
CAA sections 172(c)(4) (identification
and quantification of certain emissions
increases) or 172(c)(8) (equivalent
techniques).
With respect to the requirements
associated with subpart 2, we note that,
as discussed in more detail above, the
Clark County 8-hour ozone
nonattainment area was initially
designated nonattainment under subpart
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1 of the CAA, but was subsequently
classified as marginal nonattainment for
the 1997 8-hour ozone standard under
subpart 2 of part D of the CAA. See 77
FR 28424 (May 14, 2012). The effective
date of EPA’s classification of the Clark
County 8-hour ozone nonattainment
area as marginal was June 13, 2012, and
under the final May 14, 2012 subpart 2
classifications rule, states have one year
from the effective date of that final rule
(i.e., June 13, 2013) to submit SIP
revisions.
NDEP has not submitted any SIP
revisions for the Clark County 8-hour
ozone nonattainment area in response to
the area’s recent classification to
marginal.10 However, EPA believes that
this does not preclude this
redesignation from being approved. This
belief is based upon: (1) EPA’s
longstanding policy of evaluating
requirements in accordance with the
requirements due at the time
redesignation request is submitted; and
(2) consideration of the inequity of
applying retroactively any requirements
that might in the future be applied.
First, at the time the redesignation
request was submitted (i.e., April 11,
2011), the Clark County 8-hour ozone
nonattainment area was not classified
under subpart 2, and thus, subpart 2
requirements were not yet due for this
area. Under EPA’s longstanding
interpretation of section 107(d)(3)(E) of
the CAA, to qualify for redesignation,
states requesting redesignation to
attainment must meet only the relevant
SIP requirements that came due prior to
the submittal of a complete
redesignation request. See the Calcagni
memo and also the September 17, 1993,
Michael Shapiro Memorandum (‘‘State
Implementation Plan (SIP)
Requirements for Areas Submitting
Requests for Redesignation to
Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after
10 In any event, the State of Nevada would not be
required to submit a SIP revision under section
182(a)(2)(A) to correct RACT rules for the Clark
County 8-hour ozone nonattainment area because
the area had not been identified by EPA under the
pre-1990 CAA as an area that had RACT rule
deficiencies. At that time, all of Clark County,
including Las Vegas Valley, was designated as
attainment for the then-current 1-hour ozone
standard and had been so designated since 1986.
See 51 FR 41788 (November 19, 1986). We also note
that, for the purposes of meeting the SIP
requirements for nonattainment areas for carbon
monoxide, the State previously submitted, and EPA
approved, SIP revisions that would meet the vehicle
inspection and maintenance requirements under
CAA section 182(a)(2)(B) for the Clark County 8hour ozone nonattainment area, if those
requirements were applicable for the purposes of
redesignation. See at 69 FR 56351 (September 21,
2004), 73 FR 38124 (July 3, 2008), and 74 FR 3975
(January 22, 2009).
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67605
November 15, 1992,’’ Memorandum
from Michael Shapiro, Acting Assistant
Administrator for Air and Radiation),
and 60 FR 12459, (March 7, 1995)
(Redesignation of Detroit-Ann Arbor,
Michigan); Sierra Club v. EPA, 375 F.3d
537 (7th Cir. 2004) (upholding this
interpretation); 68 FR 25418, 25424,
25427 (May 12, 2003) (redesignation of
St. Louis, Missouri).
Moreover, it would be inequitable to
retroactively apply any new SIP
requirements that were not applicable at
the time the request was submitted. The
D.C. Circuit Court has recognized the
inequity in such retroactive rulemaking
(see Sierra Club v. Whitman 285 F. 3d
63 (D.C. Cir. 2002)), in which the court
upheld a district court’s ruling refusing
to make retroactive an EPA
determination of nonattainment that
was past the statutory due date. Such a
determination would have resulted in
the imposition of additional
requirements on the area. The court
stated, ‘‘[a]lthough EPA failed to make
the nonattainment determination within
the statutory frame, Sierra Club’s
proposed solution only makes the
situation worse. Retroactive relief would
likely impose large costs on the states,
which would face fines and suits for not
implementing air pollution prevention
plans in 1997, even though they were
not on notice at the time.’’ Id. at 68.
Similarly here, it would be unfair to
penalize the Clark County 8-hour ozone
nonattainment area by applying to it, for
purposes of redesignation, additional
SIP requirements under subpart 2 that
were not in effect or yet due at the time
it submitted its redesignation request, or
the time that the Clark County 8-hour
ozone nonattainment area attained the
NAAQS.
In the following paragraphs, we
explain how the State has met the SIP
revision requirements for those
remaining requirements under part D
that are not currently suspended or not
otherwise applicable.
b. Emissions Inventory
EPA regulations at 40 CFR 51.915
extend the SIP requirements under CAA
sections 172(c)(3) to areas designated as
nonattainment for the 1997 8-hour
ozone standard. CAA section 172(c)(3)
requires States to submit a
comprehensive, accurate, current
inventory of actual VOC and NOX
emissions for the baseline year from all
sources within the nonattainment area.
The inventory is to address actual VOC
and NOX emissions during the ozone
season, and all stationary (generally
referring to larger stationary source or
‘‘point’’ sources), area (generally
referring to smaller stationary and
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fugitive (non-smokestack) sources), and
mobile (on-road, nonroad, locomotive
and aircraft) sources are to be included
in the inventory.
We interpret the Act such that the
emission inventory requirements of
section 172(a)(3) are satisfied by the
inventory requirements of the
maintenance plan. See 57 FR 13498, at
13564 (April 16, 1992). Thus, our
proposed approval of the Clark County
Ozone Maintenance Plan and related
VOC and NOX emission inventories and
our proposed approval of NDEP’s
redesignation request would satisfy the
requirements of sections 172(a)(3) for
the purposes of redesignation of the
Clark County 8-hour ozone
nonattainment area to attainment for the
1997 8-hour ozone NAAQS.
c. Permits for New and Modified Major
Stationary Sources
To meet the requirements of CAA
section 172(c)(5), states must submit SIP
revisions that meet the requirements
under 40 CFR 51.165 (‘‘Permit
requirements’’), and EPA regulations at
40 CFR 51.914 extend the SIP
requirements of 40 CFR 51.165 to areas
designated as nonattainment for the
1997 8-hour ozone standard.
Under 40 CFR 51.165, states are
required to submit SIP revisions that
establish certain requirements for new
or modified stationary sources in
nonattainment areas, including
provisions to ensure that major new
sources or major modifications of
existing sources of nonattainment
pollutants incorporate the highest level
of control, referred to as the Lowest
Achievable Emission Rate (LAER), and
that increases in emissions from such
stationary sources are offset so as to
provide for reasonable further progress
towards attainment in the
nonattainment area.
The process for reviewing permit
applications and issuing permits for
new or modified stationary sources of
air pollution is referred to as ‘‘New
Source Review’’ (NSR). With respect to
nonattainment pollutants in
nonattainment areas, this process is
referred to as ‘‘nonattainment NSR.’’
With respect to pollutants for which an
area is designated as attainment or
unclassifiable, states are required to
submit SIP revisions that ensure that
major new stationary sources and major
modifications of existing stationary
sources meet the Federal requirements
for Prevention of Significant
Deterioration’’ (PSD), including
application of ‘‘best available control
technology,’’ for each applicable
pollutant emitted in significant
amounts, among other requirements.
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As noted above, under Nevada law,
specific electric steam-generating
emission units (i.e., power plants)
within Clark County are under NDEP
jurisdiction. See Nevada Revised
Statutes (NRS) section 445B.500. Thus,
state regulations govern air pollution
permits issued by NDEP to those units.
Clark County DAQ is responsible for all
other stationary sources emissions units,
and Clark County regulations govern air
pollutant permits issued to them.
Under the Clean Air Act Amendments
of 1977, States with designated
nonattainment areas were required to
amend their NSR rules to impose LAER
and offset requirements on new major
sources and major modifications of
nonattainment pollutants in
nonattainment areas. As noted
previously, under the 1977 Act
Amendments, we designated Las Vegas
Valley as a nonattainment area for
photochemical oxidant, later changed to
ozone. To address the nonattainment
NSR requirements flowing from the
1977 Act Amendments, the State of
Nevada amended its nonattainment NSR
rules (Nevada Air Quality Regulations
(NAQR) Article 13), and NDEP
submitted them to EPA for approval as
part of the Nevada SIP. We approved the
amended NSR rules in 1981. See 46 FR
21758 (April 14, 1981). Under these
EPA-approved rules, LAER and offsets
have been required for new ‘‘point
sources’’ that cause emissions greater
than 100 tons per year of ozone
precursors in ozone nonattainment
areas. In the 1980’s EPA also approved
Clark County NSR rules for Las Vegas
Valley as meeting the related
requirements under the 1977 Amended
Act and EPA regulations.
The 1990 Clean Air Act Amendments
retained the core nonattainment NSR
elements of LAER and offsets but added
other requirements. To address the
nonattainment designations of Las
Vegas Valley for carbon monoxide and
particulate matter for sources under
NDEP jurisdiction and in lieu of
amending the rules to meet the
additional NSR requirements under the
1990 Act Amendments, the State of
Nevada submitted a rule (Nevada
Administrative Code (NAC) section
445B.22083) establishing a construction
ban for new major sources and major
modifications within the nonattainment
area. NAC 445B.22083, with a limited
exception, prohibits new power plants
or major modifications to existing power
plants under State jurisdiction within
four hydrographic areas in Clark
County, including Las Vegas Valley
(hydrographic area No. 212). See 69 FR
31056, 31059 (June 2, 2004) and 69 FR
54006, at 54017 (September 7, 2004).
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We approved NAC 445B.22083 into the
Nevada SIP most recently in 2008. See
73 FR 20536 (April 16, 2008). However,
the prohibition in NAC 445B.22083
does not cover the entire Clark County
8-hour ozone nonattainment area, which
includes the four hydrographic areas
listed in NAC 445B.22083, but also
includes all or portions of seven
additional hydrographic areas in Clark
County. See 40 CFR 81.329. Thus, the
State of Nevada does not have a
nonattainment NSR program meeting
the requirements of 40 CFR 51.165 for
those sources under NDEP jurisdiction
within the Clark County 8-hour ozone
nonattainment area.
With respect to Clark County
regulations, EPA recently finalized a
limited approval and limited
disapproval of updated Clark County
rules governing NSR, including
nonattainment NSR, but also PSD. See
77 FR 64039 (October 18, 2012). Thus,
Clark County does not have a
nonattainment NSR program meeting
the requirements of 40 CFR 51.165 for
those sources under Clark County DAQ
jurisdiction within the Clark County 8hour ozone nonattainment area.
We have determined, however, that,
since PSD requirements 11 will apply
after redesignation, an area being
redesignated to attainment need not
comply with the requirement that a NSR
program be approved prior to
redesignation, provided that the state
demonstrates maintenance of the
NAAQS in the area without
implementation of nonattainment NSR.
A more detailed rationale for this view
is described in a memorandum from
Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14,
1994, titled ‘‘Part D New Source Review
Requirements for Areas Requesting
Redesignation to Attainment.’’ See
redesignation rulemakings for Detroit,
Michigan (60 FR 12459, March 7, 1995);
Cleveland-Akron-Lorain, Ohio (61 FR
20458, 20469–20470, May 7, 1996);
Louisville, Kentucky (66 FR 53665,
October 23, 2001); and, Grand Rapids,
Michigan (61 FR 31831, June 21, 1996).
Based on our review of the Clark
County Ozone Maintenance Plan, we
conclude the maintenance
demonstration included therein does
not rely on implementation of
nonattainment NSR because the plan
applies standard growth factors to
stationary source emissions and does
not rely on NSR offsets to reduce the
rate of increase in emissions over time
from point sources. The Ozone
11 PSD requirements control the growth of new
source emissions in areas designated as attainment
for a NAAQS.
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Maintenance Plan does include a lineitem for emission reduction credits for
VOC and NOX but adds them to future
projected emissions rather than
assuming that they would be used to
reduce emissions growth from
stationary sources. Therefore, EPA
concludes that the State need not have
a fully approved nonattainment NSR
program as an applicable requirement
for approval of the State’s ozone
redesignation request for the Clark
County ozone planning area.
Because the State’s PSD program has
been disapproved with respect to
sources under NDEP jurisdiction, the
Federal PSD requirements under 40 CFR
52.21 will apply to new major sources
or major modifications of ozone
precursors under NDEP jurisdiction
once the Clark County 8-hour ozone
nonattainment area is redesignated to
attainment. See 40 CFR 52.1485(b).
NDEP implements and enforces the
Federal PSD regulations under a
delegation agreement with EPA Region
IX.
With respect to stationary sources
under Clark County DAQ jurisdiction,
the County’s PSD program will apply to
ozone precursor emissions of new major
sources or major modifications upon
redesignation of the Clark County 8hour ozone nonattainment area to
attainment. We note that Clark County’s
PSD program is not fully approved, but
the deficiencies that formed the basis for
EPA’s recent limited approval and
limited disapproval action would not
interfere with maintenance of the ozone
standard for two reasons. First, the
deficiencies that relate to ozone
precursors are limited to a few
definitions: ‘‘allowable emissions,’’
‘‘baseline actual emissions,’’ ‘‘net
emissions increase,’’ and ‘‘major
modification.’’ See 77 FR 64039, at
64047 (October 18, 2012). Second, the
limited disapproval triggered an
obligation on EPA to promulgate a
Federal implementation plan (FIP) to
remedy the PSD deficiencies by
November 19, 2014 unless NDEP
submits, and EPA approves, amended
Clark County rules that correct the
deficiencies prior to that time. Thus, the
overlap in time during which the Clark
County 8-hour area would be
redesignated to attainment but would
not be subject to a fully-approved PSD
program would be less than two years.
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d. Compliance With Section 110(a)(2)
Section 172(c)(7) requires the SIP to
meet the applicable provisions of
section 110(a)(2). As noted above, we
conclude the Nevada SIP meets the
requirements of section 110(a)(2)
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67607
applicable for purposes of this
redesignation.
Wall v. EPA, 265 F.3d 426, 439 (6th Cir.
2001) upholding this interpretation.
e. Conformity Requirements
Under section 176(c) of the Clean Air
Act Amendments of 1990, States are
required to establish criteria and
procedures to ensure that Federally
supported or funded projects conform to
the air quality planning goals in the
applicable SIP. Section 176(c) further
provided that State conformity
provisions must be consistent with
Federal conformity regulations that the
CAA required EPA to promulgate. EPA’s
conformity regulations are codified at 40
CFR part 93, subparts A (referred to
herein as ‘‘transportation conformity’’)
and B (referred to herein as ‘‘general
conformity’’). Transportation conformity
applies to transportation plans,
programs, and projects developed,
funded, and approved under title 23
U.S.C. or the Federal Transit Act, and
general conformity applies to all other
Federally-supported or funded projects.
SIP revisions intended to address the
conformity requirements are referred to
herein as ‘‘conformity SIPs.’’
In November 2008, EPA approved
Clark County’s transportation
conformity criteria and procedures as
meeting the related SIP requirements
under part 51, subpart T (‘‘Conformity
to State or Federal Implementation
Plans of Transportation Plans, Programs,
and Project Developed, Funded or
Approved Under Title 23 U.S.C. or the
Federal Transit Laws’’). See 73 FR
66182 (November 7, 2008).
With respect to ‘‘general conformity,’’
we note that, in August 2005, Congress
passed the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA–LU), which
eliminated the requirement for States to
adopt and submit conformity SIPs
addressing general conformity
requirements. See 75 FR 17254 (April 5,
2010) for conforming changes to EPA’s
general conformity regulations. The
State of Nevada is thus no longer
required to submit a general conformity
SIP for the Clark County 8-hour ozone
planning area.
Therefore, based on our approval of
Clark County’s transportation
conformity SIP and SAFETEA–LU’s
elimination of the general conformity
SIP requirement, we find that Clark
County and the State have met the
requirements for conformity SIPs in the
Clark County 8-hour ozone
nonattainment area under CAA section
176(c). In any event, EPA believes it is
reasonable to interpret the conformity
requirements as not applicable for
purposes of evaluating a redesignation
request under section 107(d)(3)(E). See
C. The Area Must Show the
Improvement in Air Quality Is Due to
Permanent and Enforceable Emissions
Reductions
Section 107(d)(3)(E)(iii) precludes
redesignation of a nonattainment area to
attainment unless EPA determines that
the improvement in air quality is due to
permanent and enforceable reductions
in emissions resulting from
implementation of the applicable SIP
and applicable Federal air pollution
control regulations and other permanent
and enforceable regulations. Under this
criterion, the state must be able to
reasonably attribute the improvement in
air quality to emissions reductions
which are permanent and enforceable.
Attainment resulting from temporary
reductions in emissions rates (e.g.,
reduced production or shutdown due to
temporary adverse economic
conditions) or unusually favorable
meteorology would not qualify as an air
quality improvement due to permanent
and enforceable emission reductions.
The Clark County Ozone Maintenance
Plan credits the following control
measures as providing the emissions
reductions sufficient to attain the 1997
8-hour ozone NAAQS in the Clark
County 8-hour ozone nonattainment
area through year 2022: the Federal Tier
2 motor vehicle emissions standards;
the Federal highway diesel rule; the
Federal large nonroad diesel engines
rule; the Federal nonroad spark-ignition
engines and recreational engines
standards; the Federal nonroad sparkignition engines and equipment
standard; the State’s vehicle I/M
program; and the County’s NSR and
stationary source prohibitory rules. As
discussed above, the State’s vehicle
inspection and maintenance (I/M)
program and the County’s NSR rules
and VOC-related prohibitory rules (such
as section 52 (‘‘Handling of Gasoline at
Service Stations, Airports and Storage
Tanks’’)) have been approved into the
SIP, and thus are federally enforceable.
The Federal on-road and nonroad
vehicle and engine standards cited
above have contributed to improved air
quality through the gradual, continued
turnover and replacement of older
vehicle models with newer models
manufactured to meet increasingly
stringent Federal tailpipe emissions
standards. The new Federal fuel
standards cited above have resulted in
more immediate emissions reductions of
ozone precursors and provide for the
use of advanced pollution control
technology that would not otherwise be
possible. The emissions reductions from
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the Federal vehicle and fuel standards
are reflected in the emissions
inventories and maintenance
demonstration discussed later in this
document through the use of EPA’s
MOBILE emission factor model for onroad motor vehicles and NONROAD
emission factor model for nonroad
vehicles.
We note that some of the control
measures cited in the Clark County
Ozone Maintenance Plan provided
emissions reductions since 2002, and
thus, the improvement in air quality
since 2002 may reasonably be attributed
to them. For instance, the new Federal
gasoline and diesel fuel standards have
greatly lowered the allowable sulfur
content of these fuels and have resulted
in lower emissions from cars and trucks,
particularly of sulfur dioxide,
particulate matter, and NOX. The Clark
County Ozone Maintenance Plan (see
Figure 4–1 from the plan) illustrates the
ambient ozone trend in the
nonattainment area from 2003-to 2009
and layers the sequence of Federal
engine and fuel standards phase-in over
that period to support the inference that
the standards have contributed to the
declining trend in ambient ozone
concentrations.
A rough sense of the effectiveness of
the control measures to reduce VOC and
NOX emissions can be gained by a
comparison between area-wide
emissions in 2002 (a nonattainment
year) with those in 2008 (an attainment
year). In 2002, area-wide VOC and NOX
emissions in the Clark County 8-hour
ozone nonattainment area were
estimated to be approximately 318 and
279 tons per day (summer average day),
respectively, and in 2008, despite an
increase in population and vehiclemiles-traveled (VMT) of approximately
27% and 48%, respectively, area-wide
emissions dropped significantly (to 302
tons per day of VOC and 164 tons per
day of NOX).12
With respect to the connection
between the emissions reductions and
the improvement in air quality, we also
conclude that the air quality
improvement in the Clark County 8hour ozone nonattainment area since
2002 is not the result of a local
economic downturn or unusual or
extreme weather patterns. To draw this
conclusion, we reviewed temperature
and precipitation data for Las Vegas 13
12 See table 4–1, and appendix A, table 3–1, from
Clark County DAQ’s 8-Hour Ozone Early Progress
Plan for Clark County, Nevada (June 2008) and
tables 4–1, 6–1, 6–2, and 6–3 from the Clark County
Ozone Maintenance Plan.
13 Our reference for climate data is ‘‘Climate of
Las Vegas, Nevada,’’ by Andrew Gorelow and Chris
Stachelski, updated October 2012, as well as the
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and did not observe any anomaly over
the period from 2002 relative to longterm averages. We do recognize that a
significant economic slowdown
occurred nationally starting in 2008,
and that the Las Vegas metropolitan area
was more significantly affected than
most other areas, but we note that the
downward ozone trend had already
been established before that time (see
Figure 4–1 on page 4–8 of the Ozone
Maintenance Plan).
Thus, we find that the improvement
in air quality in the Clark County 8-hour
ozone nonattainment area is the result
of permanent and enforceable emissions
reductions from a combination of the
Federal vehicle and fuel measures and
EPA-approved State and local control
measures. As such, we propose to find
that the criterion for redesignation set
forth at CAA section 107(d)(3)(E)(iii) is
satisfied.
D. The Area Must Have A Fully
Approved Maintenance Plan Under
CAA Section 175A
Section 175A of the CAA sets forth
the elements of a maintenance plan for
areas seeking redesignation from
nonattainment to attainment. We
interpret this section of the Act to
require, in general, the following core
elements: attainment inventory,
maintenance demonstration, monitoring
network, verification of continued
attainment, and contingency plan. See
Calcagni memo, pages 8 through 13.
Under CAA section 175A, a
maintenance plan must demonstrate
continued attainment of the applicable
NAAQS for at least ten years after EPA
approves a redesignation to attainment.
Eight years after redesignation, the State
must submit a revised maintenance plan
that demonstrates continued attainment
for the subsequent ten-year period
following the initial ten-year
maintenance period. To address the
possibility of future NAAQS violations,
the maintenance plan must contain such
contingency provisions, that EPA deems
necessary, to promptly correct any
violation of the NAAQS that occurs after
redesignation of the area. Based on our
review and evaluation of the plan, as
detailed below, we are proposing to
approve the Clark County Ozone
Maintenance Plan because we believe
that it meets the requirements of CAA
section 175A.
1. Attainment Inventory
A maintenance plan for the 1997 8hour ozone standard must include an
inventory of emissions of ozone
climate data discussed on pages 4–2 and 4–3 of the
Ozone Maintenance Plan.
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precursors (VOC and NOX) in the area
to identify a level of emissions that are
sufficient to attain the 1997 8-hour
ozone NAAQS. This inventory must be
consistent with EPA’s most recent
guidance on emissions inventories for
nonattainment areas available at the
time and should represent emissions
during the time period associated with
the monitoring data showing
attainment. The inventory must also be
comprehensive, including emissions
from stationary point sources, area
sources, nonroad mobile sources, and
on-road mobile sources, and must be
based on actual ‘‘ozone season data’’
(i.e., summertime) emissions.
Clark County DAQ selected year 2008
as the year for the attainment inventory
in the Clark County Ozone Maintenance
Plan. Year 2008 is one of the years of the
three-year period (2007–2009) on which
EPA made an attainment determination
for the Clark County 8-hour ozone
nonattainment area in 2011. See 76 FR
17343 (March 29, 2011). The attainment
inventory will generally be the actual
inventory during the time period the
area attained the standard. Thus, Clark
County DAQ’s selection of 2008 for the
attainment inventory is acceptable.
Based on our review of the Clark
County Ozone Maintenance Plan, we
find that the emissions inventories in
the plan are comprehensive in that they
include estimates of VOC and NOX
emissions from all of the relevant source
categories, which the plan divides
among point sources,14 nonpoint
sources,15 commercial aviation, Federal
aviation (i.e., Nellis Air Force Base), onroad mobile, nonroad mobile, and
biogenic 16 sources. See table 6–2 and
pages 6–2 through 6–5 in the Ozone
Maintenance Plan. Appendix A to the
Ozone Maintenance Plan contains
source-specific descriptions of emission
calculation procedures and sources of
input data.
For point sources, Clark County DAQ
based the inventory estimates on sourcereported actual 2008 emissions data but
adjusted the reported values to reflect a
typical summer day at each emissions
unit within the source facilities based
on information provided by the
14 The Ozone Maintenance Plan uses the term,
‘‘point sources,’’ to refer to those stationary source
facilities that are required to report their emissions
to Clark County DAQ or NDEP.
15 The Ozone Maintenance Plan uses the term,
‘‘nonpoint sources,’’ to refer to those stationary and
area sources that fall below point source reporting
levels and that are too numerous or small to
identify individually.
16 For the Ozone Maintenance Plan, ‘‘biogenic
sources’’ include agricultural crops; lawn grass;
forests that produce isoprene, monoterpene, alphapinene, and other VOC emissions; and soils that
generate trace amounts of NOX.
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facilities. For nonpoint sources, Clark
County DAQ used several methods to
estimate area source activity levels and
emissions, including applying local
activity levels, apportioning national or
statewide activity levels to the local
level, applying per capita emission
factors considering county-specific
populations and using specific method
abstracts detailed within the submittal.
The documentation supplied in the
emissions inventory submittal (i.e.,
appendix A to the Ozone Maintenance
Plan) shows how the specific emissions
were calculated for each area source
category.
With respect to most nonroad mobile
sources, Clark County DAQ used EPA’s
nonroad emissions model
NONROAD2008a, the current version of
the model at the time the plan was
created. The model includes both
emissions factors and default county
level population and activity data. The
model estimates both emissions factors
and emissions. This includes more than
80 basic and 260 specific types of nonroad equipment, and further stratifies
equipment by horsepower rating and
fuel type. The model has default
estimates, variables and factors used in
the calculations. No local data sets were
available for Clark County, therefore
only model defaults were used.
With respect to commercial and
Federal aviation sources, Clark County
DAQ relied on airport-specific
emissions inventory information
provided by the Clark County Aviation
Department for the five commercial
airports located within the
nonattainment area (McCarran
International Airport, North Las Vegas
Airport, Henderson Executive Airport,
Jean Airport, and Perkins Field Airport)
and information provided by the U.S.
Air Force for Nellis Air Force Base.
Airport support equipment and airport-
related stationary source emissions were
included in the airport-specific
inventories rather than in the general
source categories such as point sources
or nonroad mobile. Locomotive
emissions were estimated by Clark
County DAQ based on fuel consumption
within the nonattainment area by the
Union Pacific Railroad and included in
the aggregate emissions estimates for
‘‘nonroad mobile.’’ To estimate biogenic
emissions, Clark County DAQ used the
Model of Emissions of Gasses and
Aerosols from Nature (MEGAN)
estimates, measured emission factors,
and species information from completed
surveys.
The on-road mobile source emissions
estimates in the Ozone Maintenance
Plan were prepared by Clark County
DAQ using the CONCEPT MV emissions
model,17 EPA’s MOBILE6.2 emissions
factors, the Regional Transportation
Commission of Southern Nevada’s
(RTC’s) transportation demand
modeling results,18 and Highway
Performance Monitoring System
(HPMS) data from the Nevada
Department of Transportation.
MOBILE6.2 estimates emissions by
vehicle class, and provides emissions
factors for exhaust emissions;
evaporative emissions; and brake and
tire wear emissions. There are a total of
28 vehicle classes used in MOBILE6.2.
For the Ozone Maintenance Plan, Clark
County DAQ aggregated the emissions
factors calculated from MOBILE6.2 into
eight vehicle classes, which are the
same as used in MOBILE5. The VMT
was adjusted by comparisons to
observed vehicle counts by facility
types, by using HPMS adjustment
factors and to account for additional
transit vehicles. The CONCEPT MV
model processes detailed inputs (e.g.,
VMT mix varying by hour of day, day
of week, and month of year) and adjusts
speeds to account for congestion based
on transportation demand modeling
outputs. For areas outside of the Las
Vegas Valley, county level VMT
estimates based on HPMS data was used
and no reductions associated with the
State’s motor vehicle inspection and
maintenance (I/M) program were
included since vehicles in the rural
portions of the county are not required
to participate in the program.
The on-road emissions estimates for
the Ozone Maintenance Plan assumed
the implementation of the Federal
heavy-duty diesel rule, limits to Reid
Vapor Pressure (RVP) of 9 pounds per
square inch (psi) with a 1.0 psi waiver
for ethanol-blended fuels 19 and the
phase-in of tier 2 motor vehicle
emission standards, and the operation of
an enhanced vehicle I/M program in the
urban areas of Clark County.
Table 3 presents the VOC and NOX
emissions estimates contained in the
Ozone Maintenance Plan for 2008 and
also presents the plan’s projected
emissions inventories of ozone
precursors in an interim year (2015) and
the maintenance plan’s horizon year
(2022).20 Based on the estimates in
Table 3, on-road emissions sources
accounted for approximately 22% of the
VOC and 42% of the NOX emissions
generated within the 8-hour ozone
nonattainment area in 2008. Nonroad
sources (including nonroad equipment,
airports, and locomotives) accounted for
approximately 15% and 34% of the
VOC and NOX inventory, respectively.
Point and area source emissions
accounted for approximately 19% and
21% of the VOC and NOX inventory,
respectively, while biogenic emissions
contributed 44% of the VOC inventory
but little (3%) to the overall NOX
inventory.
TABLE 3—2008 AND PROJECTED 2015 AND 2022 VOC AND NOX EMISSIONS TOTAL DAILY EMISSIONS
(Tons per day, average summer weekday) a
2008
Emission source
VOC
Point ..........................................
Airports ......................................
srobinson on DSK4SPTVN1PROD with
Nellis AFB .................................
Clark County Point ...................
Projected Power Plant ..............
Clark County NDEP Point ........
Clark County DOA ....................
Ivanpah Airport .........................
Nellis AFB .................................
17 ‘‘CONCEPT’’ refers to the CONsolidated
Community Emissions Processor Tool (CONCEPT,)
and ‘‘MV’’ refers to the motor vehicle module of the
CONCEPT model.
18 One of the principal sources of transportation
data used to develop the emissions inventories in
the Ozone Maintenance Plan is the Regional
Transportation Plan 2009–2030, approved by the
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16:23 Nov 09, 2012
2015
2022
Category
Jkt 229001
1
0
< 0.5
3
0
1
NOX
VOC
12
0
17
11
0
1
RTC in November 2008. See page 6–1 of the
maintenance plan.
19 The market share of ethanol blend in
summertime is assumed to be approximately 63%
for 2008 and 100% for 2015 and 2022.
20 The emissions inventories reflect county-wide
emissions which include both the nonattainment
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NOX
1
< 0.5
< 0.5
3
< 0.5
1
12
3
17
15
< 0.5
2
VOC
1
< 0.5
< 0.5
3
1
1
NOX
12
3
17
17
11
2
area portion of the county and the portion of the
county designated as ‘‘unclassifiable/attainment’’
for the 1997 8-hour ozone NAAQS. County-wide
emissions are acceptable to characterize emissions
within the Clark County ozone nonattainment area
because over 95% of the population of the county
resides in the nonattainment area.
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TABLE 3—2008 AND PROJECTED 2015 AND 2022 VOC AND NOX EMISSIONS TOTAL DAILY EMISSIONS—Continued
(Tons per day, average summer weekday) a
2008
Emission source
VOC
Nonpoint Sources .....................
Locomotive ................................
On-road Mobile .........................
Nonroad Mobile ........................
Biogenic ....................................
Banked Emission Reduction
Credits (ERCs.
2015
2022
Category
VOC
NOX
NOX
VOC
NOX
Nonpoint Sources .....................
Locomotive ...............................
On-road Mobile .........................
Nonroad Mobile ........................
Biogenic ....................................
DAQ ERC Bank ........................
57
< 0.5
65
43
132
0
5
2
68
41
5
0
66
< 0.5
45
32
132
< 0.5
6
2
35
28
5
1
76
< 0.5
37
30
132
< 0.5
6
2
23
18
5
1
ERCs from Mohave Generating
ERCs from Reid-Gardner .........
0
0
0
0
< 0.5
0
20
2
< 0.5
0
20
2
..............................................
302
164
Total ...................................
282
146
282
139
a Derived
from table 1–1 of appendix A to the Ozone Maintenance Plan. For the purposes of this table, the estimates contained in the maintenance plan have been rounded to the nearest whole number (except for values greater than zero but less than 0.5, which are shown as ‘‘< 0.5’’).
The sum of the values in each column may not equal the total shown due to rounding. DOA = Clark County Department of Aviation; AFB = Air
Force Base; and ERCs = emission reduction credits.
Based on our review of the emissions
inventories (and related documentation)
from the Ozone Maintenance Plan, we
find that the inventories for 2008 are
comprehensive, that the methods and
assumptions used by Clark County DAQ
to develop the 2008 emission inventory
are reasonable, and that the inventories
reasonably estimate actual ozone season
emissions in an attainment year.
Moreover, we find that the 2008
emissions inventories in the Ozone
Maintenance Plan reflect the latest
planning assumptions and emissions
models available at the time the plan
was developed, and provide a
comprehensive and reasonably accurate
basis upon which to forecast ozone
precursor emissions for years 2015 and
2022.
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2. Maintenance Demonstration
CAA section 175A(a) requires that the
maintenance plan ‘‘provide for the
maintenance of the national primary
ambient air quality standard for such air
pollutant in the area concerned for at
least 10 years after the redesignation.’’
Generally, a state may demonstrate
maintenance of the ozone NAAQS by
either showing that future emissions
will not exceed the level of the
attainment inventory or by modeling to
show that the future mix of sources and
emissions rates will not cause a
violation of the NAAQS. For areas that
are required under the Act to submit
modeled attainment demonstrations, the
maintenance demonstration should use
the same type of modeling. Calcagni
memorandum, page 9. The Clark County
8-hour ozone nonattainment area was
not required to submit a modeled
attainment demonstration, and thus, the
Clark County Ozone Maintenance Plan
may demonstrate maintenance based on
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a comparison of existing and future
emissions of ozone precursors.21
Clark County DAQ used projected
emissions 22 for point and non-point
sources from calendar years 2008 and
2018 to back calculate the growth
factors for all ozone precursor emissions
for both inventory years. The derived
growth factors were then
mathematically extrapolated to account
for a 14-year (2008 through 2022)
spread. These 2022 growth factors were
then multiplied by the 2008 actual
emissions to produce the 2022 projected
point source emissions. An interim year
(2015) projected emissions inventory is
also included. The 2015 emissions were
calculated using half of the growth
value of the 2022 projections.
Corrections for rule effectiveness were
not applied to these projected
emissions. On-road emissions were
estimated for the 2008 base year and for
projection years 2015 and 2022 and
reflect a 26% increase in VMT from
2008 to 2015 and a 63% increase in
VMT from 2008 to 2022 based on RTC
projections. See table 6–1 in the Ozone
Maintenance Plan.
In addition to accounting for areawide growth trends, Clark County DAQ
added emissions from specific projects
that are expected to become operational
during the maintenance period,
including the Nellis Air Force Base F–
35 beddown project, a new power plant,
a new airport (Ivanpah), and new
heliport (Sloan), in the future-year
21 A maintenance demonstration need not be
based on ozone modeling. See Wall v. EPA, 375
F.3d 537 (7th Cir. 2004). See also 66 FR 53094,
53099–53100 (October 19, 2001), and 68 FR 25413,
25430–25432 (May 12, 2003).
22 The projected emissions were obtained from
the 2005 Clark County Consolidated Emission
Inventory Report (Environ, May 31, 2007, Appendix
A).
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emissions inventories, and also added
in emissions reduction credits (ERCs)
from certain stationary sources in the
event that the ERCs are used for the
purposes of issuing permits for new or
modified stationary sources in the air
quality planning area. We have
reviewed the methods and assumptions,
as described in connection with the
attainment inventory, that Clark County
DAQ used to project emissions to 2015
and 2022 for the various source
categories and find them to be
reasonable.
Table 3 compares the VOC and NOX
emissions estimated for the Clark
County 8-hour ozone nonattainment
area for 2008 with those for 2015 and
2022 by source category. The projected
VOC and NOX emissions show that VOC
and NOX emissions would remain well
below the attainment levels throughout
the 10-year maintenance period and
thereby adequately demonstrating
maintenance through that period.
3. Monitoring Network
Continued ambient monitoring of an
area is generally required over the
maintenance period. As discussed in
section V.A of this document, ozone is
currently monitored by Clark County
DAQ at ten sites within the Clark
County 8-hour ozone nonattainment
area. In the Ozone Maintenance Plan
(see page 6–11 of the plan), Clark
County DAQ indicates its intention to
continue operation of an air quality
monitoring network to verify continued
attainment of the 1997 8-hour ozone
NAAQS.23 The Clark County Ozone
23 Although the Ozone Maintenance Plan is not
explicit in this regard, we presume that Clark
County DAQ’s intention to continue operation of a
monitoring network means that the agency intends
to do so consistent with EPA’s monitoring
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Maintenance Plan also notes that Clark
County DAQ’s SLAMS air quality
monitoring system (which includes
ambient ozone monitoring) will be
reviewed annually pursuant to 40 CFR
58.20(d) to determine whether the
system continues to meet the applicable
monitoring objectives.24 We find the
County’s commitment for continued
ambient ozone monitoring as set forth in
the Ozone Maintenance Plan to be
acceptable.
srobinson on DSK4SPTVN1PROD with
4. Verification of Continued Attainment
NDEP and the Clark County Board of
County Commissioners have the legal
authority to implement and enforce the
requirements of the Ozone Maintenance
Plan. This includes the authority to
adopt, implement and enforce any
emission control contingency measures
determined to be necessary to correct
ozone NAAQS violations. To verify
continued attainment, Clark County
DAQ commits in the Ozone
Maintenance Plan to the continued
operation of an ozone monitoring
network that meets EPA ambient air
quality surveillance requirements.
Second, the transportation conformity
process, which would require a
comparison of on-road motor vehicle
emissions that would occur under new
or amended regional transportation
plans and programs with the MVEBs in
the Ozone Maintenance Plan, represents
another means by which to verify
continued attainment of the 1997 8-hour
ozone NAAQS in the Clark County 8hour ozone area given the relative
importance of motor vehicle emissions
to the overall emissions inventories of
ozone precursors. See page 6–13 of the
Ozone Maintenance Plan. Lastly, while
not cited in the plan, NDEP and Clark
County DAQ must inventory emissions
sources and report to EPA on a periodic
basis under 40 CFR part 51, subpart A
(‘‘Air Emissions Reporting
Requirements’’). These emissions
inventory updates will provide a third
means with which to track emissions in
the area relative to those projected in
the maintenance plan and thereby verify
continued attainment of the NAAQS.
These methods are sufficient for the
purpose of verifying continued
attainment.
5. Contingency Provisions
Section 175A(d) of the Act requires
that maintenance plans include
contingency provisions, as EPA deems
necessary, to promptly correct any
requirements in 40 CFR part 58 (‘‘Ambient Air
Quality Surveillance’’).
24 EPA’s requirements for annual review of
monitoring networks are no longer codified at 40
CFR 58.20(d), but are now found at 40 CFR 58.10.
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violations of the NAAQS that occur after
redesignation of the area. Such
provisions must include a requirement
that the State will implement all
measures with respect to the control of
the air pollutant concerned which were
contained in the SIP for the area before
redesignation of the area as an
attainment area.
Under section 175A(d), contingency
measures identified in the contingency
plan do not have to be fully adopted at
the time of redesignation. However, the
contingency plan is considered to be an
enforceable part of the SIP and should
ensure that the contingency measures
are adopted expeditiously once they are
triggered by a specified event. The
maintenance plan should clearly
identify the measures to be adopted, a
schedule and procedure for adoption
and implementation, and a specific
timeline for action by the State. As a
necessary part of the plan, the State
should also identify specific indicators
or triggers, which will be used to
determine when the contingency
measures need to be implemented.
As required by section 175A of the
CAA, Clark County DAQ has adopted a
contingency plan to address possible
future ozone air quality problems. See
section 6.8 of the maintenance plan.
Clark County DAQ commits to
examining ambient air quality data
within 30 days of collection to
determine if the ozone NAAQS has been
exceeded. The contingency plan will be
triggered 60 days after Clark County
DAQ confirms a violation of the 1997 8hour ozone NAAQS (i.e., a design value
equal to or greater than 0.085 ppm).
Within 45 days of the trigger date, Clark
County will notify EPA that it is
evaluating potential contingency
measures. Within 90 days of that
notification, Clark County will send a
report to EPA and then will initiate a
public process to consider the
recommended contingency measures,
including soliciting stakeholder
involvement and holding public
hearings. The necessary emission
control measures will be adopted and
implemented no later than 18 months
after the information report is submitted
to EPA.
Contingency measures contained in
the maintenance plan are those
emission controls or other measures that
Clark County, the Nevada State Board of
Agriculture, and/or the Nevada State
Environmental Commission choose to
adopt and implement in response to the
contingency trigger. The contingency
plan in the Ozone Maintenance Plan
lists the following potential contingency
measures that will be considered for
adoption and implementation by the
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67611
applicable State or County agency, but
the plan indicates that the list is not to
be considered exclusive:
• Reid vapor pressure reduction (i.e.,
in gasoline sold during the summer
ozone season; would need to be adopted
and implemented by the Nevada State
Board of Agriculture);
• Inspection/maintenance program
changes and additions (e.g., lowering
the cutpoints for VOCs and NOX
applicable to pre-1996 vehicles; would
need to be adopted and implemented by
the State Environmental Commission
and/or the State Department of Motor
Vehicles);
• Consumer and commercial products
(Clark County would be responsible for
adoption and implementation);
• Architectural surface coatings
(Clark County would be responsible for
adoption and implementation);
• Lawn and garden equipment use
(Clark County would be responsible for
adoption and implementation); and
• Establish/enhance trip reduction
programs (Clark County and the RTC
would be responsible for adoption and
implementation).
Upon our review of the plan, as
summarized above, we find that the
contingency provisions of the Ozone
Maintenance Plan clearly identify
specific contingency measures, contain
tracking and triggering mechanisms to
determine when contingency measures
are needed, contain a description of the
process of recommending and
implementing contingency measures,
and contain specific timelines for
action. Thus, we conclude that the
contingency provisions of the Clark
County Ozone Maintenance Plan are
adequate to ensure prompt correction of
a violation and therefore comply with
section 175A(d) of the Act.
6. Subsequent Maintenance Plan
Revisions
CAA section 175A(b) provides that
States shall submit a SIP revision 8
years after redesignation providing for
maintaining the NAAQS for an
additional 10 years. The Clark County
Ozone Maintenance Plan provides that
Clark County commits to prepare and
submit a revised maintenance plan eight
years after redesignation to attainment.
See page 6–13 of the Ozone
Maintenance Plan.
7. Motor Vehicle Emissions Budgets
Transportation conformity is required
by section 176(c) of the CAA. Our
transportation conformity rule (codified
in 40 CFR part 93, subpart A) requires
that transportation plans, programs, and
projects conform to SIPs and establishes
the criteria and procedures for
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determining whether or not they do so.
Conformity to the SIP means that
transportation activities will not
produce new air quality violations,
worsen existing violations, or delay
timely attainment of the national
ambient air quality standards.
Maintenance plan submittals must
specify the maximum emissions of
transportation-related VOC and NOX
emissions allowed in the last year of the
maintenance period, i.e., the motor
vehicle emissions budgets (MVEBs).
(MVEBs may also be specified for
additional years during the maintenance
period.) The MVEBs serve as a ceiling
on emissions that would result from an
area’s planned transportation system.
The MVEB concept is further explained
in the preamble to the November 24,
1993, transportation conformity rule (58
FR 62188). The preamble describes how
to establish MVEBs in the SIP and how
to revise the MVEBs if needed.
The submittal must also demonstrate
that these emissions levels, when
considered with emissions from all
other sources, are consistent with
maintenance of the NAAQS. In order for
us to find these emissions levels or
‘‘budgets’’ adequate and approvable, the
submittal must meet the conformity
adequacy provisions of 40 CFR
93.118(e)(4) and (5). For more
information on the transportation
conformity requirement and applicable
policies on MVEBs, please visit our
transportation conformity Web site at:
https://www.epa.gov/otaq/
stateresources/transconf/index.htm.
EPA’s process for determining
adequacy of a MVEB consists of three
basic steps: (1) Providing public
notification of a SIP submission; (2)
providing the public the opportunity to
comment on the MVEB during a public
comment period; and, (3) making a
finding of adequacy. The process for
determining the adequacy of a
submitted MVEB is codified at 40 CFR
93.118.
The Clark County Ozone Maintenance
Plan submitted by NDEP for Clark
County, contains new VOC and NOX
MVEBs for Clark County for 2008, 2015,
and 2022. The availability of the SIP
submission with MVEBs was
announced for public comment on
EPA’s Adequacy Web site on June 14,
2011, at: https://www.epa.gov/otaq/
stateresources/tansconf/currsips.htm,
which provided a 30-day public
comment period. The comment period
for this notification ended on July 14,
2011, and EPA received no comments
from the public. Note, however, that a
second mechanism is also provided for
EPA review and public comment on
MVEBs, as described in 40 CFR
93.118(f)(2). This mechanism provides
for EPA’s review of the adequacy of an
implementation plan MVEB
simultaneously with its review and
approval and disapproval of the
implementation plan itself. In this
action, EPA used the web notification
discussed above to solicit public
comments on the adequacy of Clark
County’s MVEBs, but is taking comment
on the approvability of the submitted
MVEBs through this proposed rule.
Clark County’s ozone maintenance
plan contains VOC and NOX MVEBs for
2008, 2015 and 2022. Any and all
comments on the approvability of the
MVEBs should be submitted during the
comment period stated in the DATES
section of this document.
EPA proposes to approve 2008, 2015,
and 2022 MVEBs in the Clark County
Ozone Maintenance Plan for
transportation conformity purposes in
the final rulemaking on Clark County’s
ozone redesignation request. If EPA
approves the MVEBs in the final
rulemaking action, the new MVEBs
must be used in future transportation
conformity determinations for Clark
County. The new MVEBs, if approved in
the final rulemaking, will be effective on
the date of EPA’s final rulemaking in the
Federal Register. The existing 2008
VOC and NOX MVEBs from the Clark
County EPP, which EPA found adequate
in 2009, will be replaced by these
budgets. The applicable VOC and NOX
MVEBs for the Clark County ozone
nonattainment area are defined in table
4.
TABLE 4—MOTOR VEHICLE EMISSIONS BUDGETS IN THE CLARK COUNTY OZONE MAINTENANCE PLAN a
VOC
(tpd, average
summer weekday)
Budget year
NOX
(tpd, average
summer weekday)
65.08
45.32
36.71
68.46
34.69
23.15
2008 .............................................................................................................................................................
2015 .............................................................................................................................................................
2022 .............................................................................................................................................................
srobinson on DSK4SPTVN1PROD with
a From
Table 7–1 (page 7–1) of the Ozone Maintenance Plan.
The MVEBs are the on-road mobile
source VOC and NOX emissions for
Clark County for 2008, 2015 and 2022.
The MVEBs are compatible with the
2008, 2015, and 2022 on-road mobile
source VOC and NOX emissions
included in Clark County’s 2008, 2015,
and 2022 VOC and NOX emission
inventories, as summarized above in
table 3. The derivation of the MVEBs is
thoroughly discussed in appendix A,
chapter 7 of Clark County’s Ozone
Maintenance Plan. Updated vehicle
miles traveled (VMT) data from the
Regional Transportation Commission’s
TRANSCAD transportation demand
model was adjusted with Highway
Performance Monitoring System
(HPMS) data and then combined with
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emission factors from MOBILE6 to
estimate ozone precursor emissions.
We note that the MVEBs in the Ozone
Maintenance Plan for 2008 differ from
those contained for that same year in the
Clark County Ozone EPP, but Clark
County DAQ has explained the
differences stem not from a different
approach but from changes with regard
to the fuel parameters and updated
vehicle activity data for 2008.
Specifically, the MOBILE input files
used for the Ozone Maintenance Plan
were updated to show the use of ethanol
in summertime with a 1.0 psi waiver,
resulting in higher VOC emissions, and
the VMT estimates for 2008 were
adjusted downwards to reflect the latest
transportation data from RTC. The net
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Sfmt 4702
effect of these changes resulted in
higher VOC emissions but lower NOX
emissions for 2008 relative to the
corresponding estimates in the Clark
County Ozone EPP.
EPA is proposing to approve the
MVEBs for 2008, 2015 and 2022 as part
of our approval of Clark County’s Ozone
Maintenance Plan. EPA has determined
that the MVEB emission targets are
consistent with emission control
measures in the SIP and that Clark
County can maintain attainment of the
1997 8-hour ozone NAAQS. The details
of EPA’s evaluation of the MVEBs for
compliance with the budget adequacy
criteria of 40 CFR 93.118(e) are provided
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in a separate memorandum 25 included
in the docket of this rulemaking.
srobinson on DSK4SPTVN1PROD with
VI. Proposed Action and Request for
Public Comment
Under CAA section 110(k)(3), and for
the reasons set forth above, EPA is
proposing to approve NDEP’s submittal
dated April 11, 2011 of Clark County’s
Ozone Redesignation Request and
Maintenance Plan (March 2011) (‘‘Clark
County Ozone Maintenance Plan’’) as a
revision to the Nevada state
implementation plan (SIP). In
connection with the Clark County
Ozone Maintenance Plan, EPA finds
that the maintenance demonstration
showing how the area will continue to
attain the 1997 8-hour ozone NAAQS
for 10 years beyond redesignation (i.e.,
through 2022) and the contingency
provisions describing the actions that
Clark County will take in the event of
a future monitored violation meet all
applicable requirements for
maintenance plans and related
contingency provisions in CAA section
175A. EPA is also proposing to approve
the motor vehicle emissions budgets
(MVEBs) in the Clark County Ozone
Maintenance Plan (shown in table 4 of
this document) because we find they
meet the applicable transportation
conformity requirements under 40 CFR
93.118(e).
Second, under CAA section
107(d)(3)(D), we are proposing to
approve NDEP’s request, which
accompanied the submitted of the
maintenance plan, to redesignate the
Clark County 8-hour ozone
nonattainment area to attainment for the
1997 8-hour ozone NAAQS. We are
doing so based on our conclusion that
the area has met the five criteria for
redesignation under CAA section
107(d)(3)(E). Our conclusion in this
regard is in turn based on our proposed
determination that the area has attained
the 1997 8-hour ozone NAAQS, that
relevant portions of the Nevada SIP are
fully approved, that the improvement in
air quality is due to permanent and
enforceable reductions in emissions,
that Nevada has met all requirements
applicable to the Clark County 8-hour
ozone nonattainment area with respect
to section 110 and part D of the CAA,
and based on our proposed approval as
part of this action of the Clark County
Ozone Maintenance Plan.
EPA is soliciting public comments on
the issues discussed in this document or
on other relevant matters. We will
25 See EPA memorandum dated October 15, 2012
titled, ‘‘Adequacy Documentation for Motor Vehicle
Emission Budgets in April 2011 Clark County
Ozone Maintenance State Implementation Plan.’’
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accept comments from the public on
this proposal for the next 30 days. We
will consider these comments before
taking final action.
VII. Statutory and Executive Order
Reviews
Under the CAA, redesignation of an
area to attainment and the
accompanying approval of a
maintenance plan under section
107(d)(3)(E) are actions that affect the
status of a geographical area and do not
impose any additional regulatory
requirements on sources beyond those
imposed by State law. Redesignation to
attainment does not in and of itself
create any new requirements, but rather
results in the applicability of
requirements contained in the CAA for
areas that have been redesignated to
attainment. Moreover, the Administrator
is required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the Clean Air Act. Accordingly, these
actions merely propose to approve a
State plan and redesignation request as
meeting Federal requirements and do
not impose additional requirements
beyond those by State law. For these
reasons, these proposed actions:
• Are not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not a significant regulatory
action subject to Executive Order 13211
(66 FR 28355, May 22, 2001);
• Are not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
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67613
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Do not provide EPA with the
discretionary authority to address
disproportionate human health or
environmental effects with practical,
appropriate, and legally permissible
methods under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule does
not have Tribal implications as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), because
the SIP is not approved to apply in
Indian country located in the State, and
EPA notes that it will not impose
substantial direct costs on Tribal
governments or preempt Tribal law.
Nonetheless, EPA has discussed the
proposed action with the one Tribe, the
Las Vegas Paiute Tribe, located within
the Clark County 8-hour ozone
nonattainment area.
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated: November 2, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012–27562 Filed 11–9–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 385 and 386
[Docket No. FMCSA–2011–0321]
RIN 2126–AB42
Patterns of Safety Violations by Motor
Carrier Management
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
FMCSA proposes
amendments to its regulations that
would enable the Agency to suspend or
revoke the operating authority
registration of motor carriers that have
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Proposed Rules]
[Pages 67600-67613]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27562]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2012-0792;9750-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Nevada;
Redesignation of Clark County to Attainment for the 1997 8-Hour Ozone
Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve, as a revision of the Nevada state
implementation plan, the State's plan for maintaining the 1997 8-hour
ozone standard in Clark County for ten years beyond redesignation, and
the related motor vehicle emissions budgets, because they meet the
applicable requirements for such plans and budgets. EPA is also
proposing to approve a request from the Nevada Division of
Environmental Protection to redesignate the Clark County ozone
nonattainment area to attainment of the 1997 8-hour ozone National
Ambient Air Quality Standard because the request meets the statutory
requirements for redesignation under the Clean Air Act.
DATES: Comments must be received on or before December 13, 2012.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-OAR-2012-0792, by one of the following methods:
1. https://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: r9_airplanning@epa.gov.
3. Fax: 415-947-3579.
4. Mail or Deliver: Ginger Vagenas (AIR-2), U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901. Deliveries are only accepted during the Regional Office's
normal hours of operation.
Instructions: All comments will be included in the public docket
without change and may be made available online at https://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 https://www.regulations.gov or email. https://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 email directly to EPA, your email 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: Generally, documents in the docket for this action are
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 at www.regulations.gov, some
information may be publicly available only at the hard copy location
(e.g., copyrighted material, large maps), 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: Ginger Vagenas, Air Planning Office
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-
3964, vagenas.ginger@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
Table of Contents
I. Summary of Today's Proposed Action
II. Background
III. Procedural Requirements for Adoption and Submittal of SIP
Revisions
IV. Substantive Requirements for Redesignation
V. Evaluation of the State's Redesignation Request for the Clark
County 8-Hour Ozone Nonattainment Area
A. Determination That the Area Has Attained the Applicable NAAQS
B. The Area Must Have a Fully Approved SIP Meeting Requirements
Applicable for Purposes of Redesignation Under Section 110 and Part
D
1. Basic SIP Requirements Under CAA Section 110
2. Part D Requirements
a. Introduction
b. Emissions Inventory
c. Permits for New and Modified Major Stationary Sources
d. Compliance With Section 110(a)(2)
e. Conformity Requirements
C. The Area Must Show the Improvement in Air Quality Is Due to
Permanent and Enforceable Emissions Reductions
D. The Area Must Have a Fully Approved Maintenance Plan Under
CAA Section 175A
1. Attainment Inventory
2. Maintenance Demonstration
3. Monitoring Network
4. Verification of Continued Attainment
5. Contingency Provisions
6. Subsequent Maintenance Plan Revisions
7. Motor Vehicle Emissions Budgets
VI. Proposed Action and Request for Public Comment
VII. Statutory and Executive Order Reviews
I. Summary of Today's Proposed Action
EPA is proposing to take several related actions. First, under
Clean Air Act (CAA or ``Act'') section 110(k)(3), EPA is proposing to
approve a submittal from the Nevada Division of Environmental
Protection (NDEP) dated April 11, 2011 of Clark County's Ozone
Redesignation Request and Maintenance Plan (March 2011) (``Clark County
Ozone Maintenance Plan'' or ``Ozone Maintenance Plan'') as a revision
to the Nevada state implementation plan (SIP).
In connection with the Clark County Ozone Maintenance Plan, EPA
finds that the maintenance demonstration showing how the area will
continue to attain the 1997 8-hour ozone national ambient air quality
standard (NAAQS) for 10 years beyond redesignation (i.e., through 2022)
and the contingency provisions describing the actions that Clark County
will take in the event of a future monitored violation meet all
applicable requirements for maintenance plans and related contingency
provisions in CAA section 175A. EPA is also proposing to approve the
motor vehicle emissions budgets (MVEBs) in the Clark County Ozone
Maintenance Plan because we find they meet the applicable
transportation conformity requirements under 40 CFR 93.118(e).
Second, under CAA section 107(d)(3)(D), EPA is proposing to approve
NDEP's request that accompanied the submittal of the maintenance plan
to redesignate the Clark County 8-hour ozone nonattainment area to
attainment for the 1997 8-hour ozone NAAQS. We are doing so based on
our conclusion that the area has met the five criteria for
[[Page 67601]]
redesignation under CAA section 107(d)(3)(E). Our conclusion in this
regard is in turn based on our proposed determination that the area has
attained the 1997 8-hour ozone NAAQS, that relevant portions of the
Nevada SIP are fully approved, that the improvement in air quality is
due to permanent and enforceable reductions in emissions, that Nevada
has met all requirements applicable to the Clark County 8-hour ozone
nonattainment area with respect to section 110 and part D of the CAA,
and based on our proposed approval as part of this action of the Clark
County Ozone Maintenance Plan.
II. Background
Ground-level ozone is generally not emitted directly by sources.
Rather, directly-emitted oxides of nitrogen (NOX) and
volatile organic compounds (VOC) react in the presence of sunlight to
form ground-level ozone, as a secondary pollutant, along with other
secondary compounds. NOX and VOC are ``ozone precursors.''
Reduction of peak ground-level ozone concentrations is typically
achieved through controlling VOC and NOX emissions.
In 1971, under section 109 of the Act, as amended in 1970, EPA
promulgated the original NAAQS for several pervasive air pollutants,
including photochemical oxidants. NAAQS represent concentration levels
the attainment and maintenance of which, allowing for an adequate
margin of safety, EPA has determined to be requisite to protect public
health (``primary'' NAAQS) and welfare (``secondary'' NAAQS).
In 1978, EPA designated the Las Vegas Valley (hydrographic area No.
212) as a nonattainment area for the photochemical oxidant NAAQS. See
43 FR 8962 (March 3, 1978). In 1979, EPA revised the NAAQS from an
hourly average of 0.08 parts per million (ppm) oxidant to an hourly
average of 0.12 ppm ozone. See 44 FR 8202 (February 8, 1979). The
nonattainment designation for Las Vegas Valley for photochemical
oxidant carried over to the 1-hour ozone NAAQS.
During the 1980s, Clark County adopted a number of rules and
prepared a number of nonattainment plans to address planning
requirements under the CAA, as amended in 1977. NDEP submitted these
rules and plans to EPA at various times, and EPA approved a number of
them into the Nevada SIP. Among the rules approved by EPA as revisions
to the Nevada SIP as part of the ozone control strategy in Las Vegas
Valley are Clark County air pollution rules section 33, which relates
to chlorine in chemical processes); sections 50, 51, and 52, which
relate to storage and distribution of petroleum products; and section
60, which relates to evaporation and leakage. In 1986, in light of the
approved control strategy and monitored levels below the NAAQS, EPA
redesignated Las Vegas Valley to attainment for the 1-hour ozone NAAQS.
See 51 FR 41788 (November 19, 1986).
In 1997, EPA revised the NAAQS for ozone, setting it at 0.08 ppm
averaged over an 8-hour time frame (``1997 8-hour ozone standard'').
EPA set the 1997 8-hour ozone standard based on scientific evidence
demonstrating that ozone causes adverse health effects at lower ozone
concentrations and over longer periods of time, than was understood
when the pre-existing 1-hour ozone standard was set. EPA determined
that the 1997 8-hour standard would be more protective of human health,
especially for children and adults who are active outdoors, and
individuals with a pre-existing respiratory disease, such as asthma.\1\
---------------------------------------------------------------------------
\1\ On March 27, 2008 (73 FR 16436), EPA promulgated a revised
8-hour ozone standard of 0.075 ppm (the 2008 8-hour ozone standard),
and on May 21, 2012, EPA designated the entire state of Nevada
unclassifiable/attainment for the 2008 8-hour ozone standard (77 FR
30088). This rulemaking relates only to the 1997 8-hour ozone
standard and does not relate to the 2008 8-hour ozone standard.
---------------------------------------------------------------------------
In 2004, EPA designated areas of the country with respect to the
1997 8-hour ozone NAAQS. See 69 FR 23858 (April 30, 2004). Under EPA's
``Phase 1'' implementation rule for the 1997 8-hour ozone standard (69
FR 23951, April 30, 2004), an area was classified under subpart 2 based
on its 8-hour ozone design value (i.e., the 3-year average annual
fourth-highest daily maximum 8-hour average ozone concentration at the
worst-case monitoring site in the area or in its immediate downwind
environs), if it had a 1-hour ozone design value \2\ at the time of
designation at or above 0.121 ppm. All other areas were covered under
subpart 1 based on their 8-hour ozone design values \3\ (69 FR 23951).
Clark County was designated as a ``subpart 1'' ozone nonattainment area
by EPA on April 30, 2004 based on air quality monitoring data from
2001-2003. The designation became effective on June 15, 2004. On
September 17, 2004, EPA reduced the geographic extent of the ozone
nonattainment area to encompass a portion of, but not all of, Clark
County.\4\ See 69 FR 55956 (September 17, 2004), 70 FR 71612 (November
29, 2005), and 40 CFR 81.329.
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\2\ The design value for the 1-hour ozone standard is the
fourth-highest daily maximum 1-hour ozone concentration over a
three-year period at the worst-case monitoring site in the area.
\3\ The design value for the 8-hour standard is the three-year
average of the annual fourth-highest daily maximum 8-hour ozone
concentration at the worst-case monitoring site in the area.
\4\ The boundaries of the Clark County ozone nonattainment area
are defined in 40 CFR 81.329. Specifically, the area is defined as:
``That portion of Clark County that lies in hydrographic areas 164A,
164B, 165, 166, 167, 212, 213, 214, 216, 217, and 218 but excluding
the Moapa River Indian Reservation and the Fort Mojave Indian
Reservation.'' The area includes a significant portion of the
unincorporated portions of central and southern Clark County, as
well as the cities of Las Vegas, Henderson, North Las Vegas, and
Boulder City.
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On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit (DC Circuit) vacated EPA's Phase 1 implementation rule
for the 1997 8-hour ozone standard (69 FR 23951, April 30, 2004). South
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006).
On June 8, 2007, in response to several petitions for rehearing, the DC
Circuit Court (Court) clarified that the Phase 1 rule was vacated only
for those parts of the rule that had been successfully challenged. The
June 8, 2007, decision left intact the Court's rejection of EPA's
reasons for implementing the 8-hour ozone standard in certain
nonattainment areas under subpart 1 in lieu of subpart 2 of the CAA.
On May 14, 2012, in response to the Court's vacating of the
provision of EPA's Phase 1 implementation rule for the 1997 8-hour
ozone standard that placed certain nonattainment areas, including Clark
County solely under subpart 1, EPA classified Clark County as a
marginal ozone nonattainment area under subpart 2 of the CAA (77 FR
28424).
On July 28, 2008, NDEP submitted the 8-hour Ozone Early Progress
Plan for Clark County, Nevada (June 2008) (``Clark County Ozone EPP'')
to EPA as a revision to the Nevada SIP. The purpose of the Clark County
Ozone EPP was to establish motor vehicle emissions budgets (MVEBs)
consistent with progress towards attainment of the 1997 8-hour ozone
standard in advance of completion and submittal of an attainment
demonstration. The Clark County EPP established MVEBs of 64.2 and 76.1
tons per day (ozone season) for VOC and NOX, respectively,
for 2008. On May 5, 2009, EPA found the MVEBs in the Clark County EPP
adequate for the purposes of transportation conformity. See 74 FR 22738
(May 14, 2009). Since the effective date of EPA's adequacy finding
(i.e., May 29, 2009), the applicable metropolitan planning organization
(MPO), i.e., the Regional Transportation Commission of Southern Nevada
(RTC), and the U.S. Department
[[Page 67602]]
of Transportation have been required to use these budgets in
transportation conformity analyses for regional transportation plans,
programs and projects.
On March 29, 2011, EPA determined that the Clark County 8-hour
ozone nonattainment area had attained the 1997 8-hour ozone NAAQS,
based on complete, quality-assured, and certified ambient air
monitoring data that showed the area monitored attainment of the 1997
8-hour ozone NAAQS for the 2007-2009 monitoring period (76 FR 17343).
As a result, the obligation for the State of Nevada to submit an
attainment demonstration and associated reasonably available control
measures (RACM), a reasonable further progress (RFP) plan, contingency
measures and other planning requirements related to attainment of the
1997 8-hour ozone NAAQS was suspended until such time as: the area is
redesignated to attainment, at which time the requirements no longer
apply; or EPA determines that the area has violated the 1997 8-hour
ozone NAAQS. See 40 CFR 51.918. In this action, we are updating the
determination of attainment to account for more recent ozone monitoring
data consistent with the applicable criterion for redesignation under
CAA section 107(d)(3)(E)(i).
Lastly, on April 11, 2011, NDEP submitted the Clark County Ozone
Maintenance Plan and requested that EPA redesignate the Clark County 8-
hour ozone nonattainment area to attainment for the 1997 8-hour ozone
standard. We are proposing action today on the NDEP's April 11, 2011
redesignation request and submittal of the Clark County Ozone
Maintenance Plan.
III. Procedural Requirements for Adoption and Submittal of SIP
Revisions
Section 110(l) of the Act requires States to provide reasonable
notice and public hearing prior to adoption of SIP revisions. In this
action, we are proposing action on NDEP's April 11, 2011 submittal of
the Clark County Ozone Maintenance Plan as a revision to the Nevada
SIP.
Appendix C of the Clark County Ozone Maintenance Plan documents the
public review process followed by Clark County in adopting the plan
prior to transmittal to NDEP for subsequent submittal to EPA as a
revision to the Nevada SIP. The documentation in appendix C provides
evidence that reasonable notice of a public hearing was provided to the
public and that a public hearing was conducted prior to adoption.
Specifically, notice of the availability of, and opening of a 30-day
comment period on, the draft ozone maintenance plan was published on
December 12, 2010 in a newspaper of general circulation within the Las
Vegas area and on the County's Web page. No comments were submitted.
On February 1, 2011, the Clark County Board of Commissioners set a
public hearing for March 15, 2011 to consider and approve the Clark
County Ozone Maintenance Plan. The announcement of the public hearing
was subsequently published on the County's Web page. On March 15, 2011,
the Clark County Board of Commissioners adopted the Clark County Ozone
Maintenance Plan at the close of the public hearing. Following
adoption, Clark County Department of Air Quality (DAQ) forwarded the
plan to NDEP, the Governor of Nevada's designee for SIP matters, and
NDEP then submitted the plan as a revision to the Nevada SIP to EPA for
approval on April 11, 2011.
Based on the documentation contained in appendix C of the plan, we
find that the submittal of the Clark County Ozone Maintenance Plan as a
SIP revision satisfies the procedural requirements of section 110(l) of
the Act for revising SIPs.
IV. Substantive Requirements for Redesignation
The CAA establishes the requirements for redesignation of a
nonattainment area to attainment. Specifically, section 107(d)(3)(E)
allows for redesignation provided that the following criteria are met:
(1) EPA determines that the area has attained the applicable NAAQS; (2)
EPA has fully approved the applicable implementation plan for the area
under section 110(k); (3) EPA determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable SIP, applicable Federal
air pollution control regulations, and other permanent and enforceable
reductions; (4) EPA has fully approved a maintenance plan for the area
as meeting the requirements of CAA section 175A; and (5) the State
containing such area has met all requirements applicable to the area
under section 110 and part D of the CAA. Section 110 identifies a
comprehensive list of elements that SIPs must include, and part D
establishes the SIP requirements for nonattainment areas. Part D is
divided into six subparts. The generally-applicable nonattainment SIP
requirements are found in part D, subpart 1, and the ozone-specific
nonattainment SIP requirements are found in part D, subpart 2.
EPA provided guidance on redesignations in a document entitled,
``State Implementation Plans; General Preamble for the Implementation
of Title I of the Clean Air Act Amendments of 1990,'' published in the
Federal Register on April 16, 1992 (57 FR 13498), and supplemented on
April 28, 1992 (57 FR 18070) (referred to herein as the ``General
Preamble''). Another relevant EPA guidance document includes
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, EPA Office of Air Quality Planning and Standards,
September 4, 1992 (referred to herein as the ``Calcagni memo'').
For the reasons set forth below in section V of this document, we
propose to approve NDEP's request for redesignation of the Clark County
8-hour ozone nonattainment area to attainment for the 1997 8-hour ozone
NAAQS based on our conclusion that all of the criteria under CAA
section 107(d)(3)(E) have been satisfied.
V. Evaluation of the State's Redesignation Request for the Clark County
8-Hour Ozone Nonattainment Area
A. Determination That the Area Has Attained the Applicable NAAQS
CAA section 107(d)(3)(E)(i) requires that we determine that the
area has attained the NAAQS. EPA generally makes the determination of
whether an area's air quality meets the ozone NAAQS based upon the most
recent three years of complete, quality-assured data gathered at
established State and Local Air Monitoring Stations (SLAMS) in the
nonattainment area and entered into the EPA Air Quality System (AQS)
database. Data from air monitors operated by state/local agencies in
compliance with EPA monitoring requirements must be submitted to AQS.
Heads of monitoring agencies annually certify that these data are
accurate to the best of their knowledge. Accordingly, EPA relies
primarily on data in AQS when determining the attainment status of
areas. See 40 CFR 50.10; 40 CFR part 50, appendix I; 40 CFR part 53; 40
CFR part 58, appendices A, C, D and E. All data are reviewed to
determine the area's air quality status in accordance with 40 CFR part
50, appendix I.
Under EPA regulations at 40 CFR part 50, the 1997 8-hour ozone
standard is attained at a site when the 3-year average of the annual
fourth-highest
[[Page 67603]]
daily maximum 8-hour average ozone concentrations at an ozone monitor
is less than or equal to 0.08 ppm. See 40 CFR 50.10. This 3-year
average is referred to as the design value. When the design value is
less than or equal to 0.084 ppm (based on the rounding convention in 40
CFR part 50, appendix I) at each monitoring site within the area, then
the area is meeting the NAAQS. The data completeness requirement is met
when the three-year average percent of days with valid ambient
monitoring data is at least 90%, and no single year has less than 75%
data completeness as determined in appendix I of 40 CFR part 50.
The Clark County Department of Air Quality (DAQ), (previously known
as Clark County Department of Air Quality and Environmental Management,
or DAQEM) is responsible for monitoring ambient air quality within
Clark County. DAQ submits monitoring network plan reports to EPA on an
annual basis. These reports discuss the status of the air monitoring
network, as required under 40 CFR part 58. Beginning in 2007, EPA has
reviewed these annual plans for compliance with the applicable
reporting requirements in 40 CFR 58.10. With respect to ozone, we have
found DAQ's annual network plans to meet the applicable requirements
under 40 CFR part 58. See EPA letters to DAQ concerning DAQ's annual
network plan reports for 2010 and 2011, included in the docket for this
rulemaking. Furthermore, we concluded in our Technical System Audit
Report (February 2010) that Clark County DAQ's ambient air monitoring
network currently meets or exceeds the requirements for the minimum
number of monitoring sites designated as SLAMS for all of the criteria
pollutants. Also, DAQ annually certifies that the data it submits to
AQS are complete and quality-assured. See, e.g., the letter dated
February 28, 2012, from Lewis Wallenmeyer, Director, DAQ, to Jared
Blumenfeld, EPA Region IX Regional Administrator.
Clark County DAQ operated 13 ozone SLAMS monitoring sites during
the 2009-2011 period \5\ within the Clark County ozone nonattainment
area: Apex (Apex Valley), Boulder City (City of Boulder City), Craig
Road (City of North Las Vegas), J.D. Smith School (City of North Las
Vegas), Jean (City of Jean, south of Las Vegas), Jerome Mack (near
North Las Vegas Airport), Joe Neal (northwest Las Vegas), Lone Mountain
(northwest Las Vegas), Orr School (central-southeast Las Vegas), Paul
Meyer Park (southwest Las Vegas), Palo Verde School (west Las Vegas),
Walter Johnson (west Las Vegas), and Winterwood (southeast Las Vegas).
All 13 sites have monitored ozone concentrations on a continuous basis
using ultraviolet absorption monitors.\6\ The spatial scale and
monitoring objective of most of DAQ's ozone monitoring sites are
``neighborhood'' and ``population exposure,'' respectively. The
exceptions are the Apex and Jean sites, whose spatial scale and
monitoring objective is ``regional'' and ``regional transport,''
respectively, and the Joe Neal site, whose spatial scale is
``neighborhood'' and monitoring objective is ``highest concentration.''
See ``Clark County Department of Air Quality and Environmental
Management--Annual Network Plan Report (June 2011).''
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\5\ As allowed by 40 CFR 58.14, Clark County DAQ has
periodically modified its monitoring network and therefore not all
monitors operated over the entire 2009-2011 period. In 2010, the
Craig Road, Lone Mountain, and Orr monitors were discontinued. EPA
has approved the discontinuation of these sites (see letter dated
October 23, 2012 from Matthew Lakin, Manager, Air Quality Analysis
Office, EPA Region IX to Mike Sword, Engineering Manager, Clark
County DAQ). Clark County's monitoring network has exceeded the
number of required monitors throughout the referenced time period.
\6\ DAQ operates Federal equivalent method (FEM) monitors for
ozone. Specifically, API 400 Series ultraviolet absorption monitors.
See the Clark County DAQ ``Annual Network Plan Report'', page 12,
June 2011. These monitoring devices have an EPA designation number
EQOA-0992-087. See EPA ``List of Designated Reference and Equivalent
Methods'', page 28, June 6, 2012, available at: https://www.epa.gov/ttn/amtic/criteria.html.
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Consistent with the requirements contained in 40 CFR part 50, EPA
has reviewed the ozone ambient air monitoring data for the monitoring
period from 2009 through 2011 collected at the monitoring sites
discussed above, as recorded in AQS and summarized in table 1, and
found that the data meet our completeness criteria, except at the
discontinued or newly-operating monitoring sites.\7\
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\7\ Also, the data from the Boulder City ozone monitor did not
meet EPA's completeness criteria during year 2010 because of a
temporary shutdown (from November 2009 through March 2010) (i.e.,
the low ozone season) due to station repairs. This temporary
shutdown was approved by EPA. See page 71 of the Clark County DAQ
Annual Network Plan Report, June 2010. In addition, the data from
the Apex ozone monitor likewise did not meet EPA completeness
criteria during 2010 and 2011 but EPA has approved a shortened ozone
monitoring season at the Apex site. See letter dated March 8, 2012
from Matthew Lakin, Manager, Air Quality Analysis Office, EPA Region
IX to Mike Sword, Engineering Manager, Clark County DAQ.
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Table 1 summarizes the site-specific annual fourth-high daily
maximum 8-hour ozone concentrations and 3-year ozone design values for
all monitoring sites within the Clark County 8-hour ozone nonattainment
area for the period of 2009-2011. As shown in table 1, the design value
for the 2009-2011 period was less than 0.084 ppm at all of the
monitors. Therefore, we are proposing to determine, based on the
complete, quality-assured data for 2009-2011, that the Clark County 8-
hour ozone nonattainment area has attained the 1997 8-hour ozone
standard. There are ten ozone monitors currently operating in the
nonattainment area. Preliminary SLAMS data for 2012 from these
monitors, which are summarized in table 2, are also consistent with
continued attainment.
Table 1--Summary of Ambient Data Collected Within Clark County 8-Hour Ozone Nonattainment Area, 2009-2011
----------------------------------------------------------------------------------------------------------------
2009 4th 2010 4th 2011 4th 2009-2011
Monitor Site code highest highest highest average (ppm)
----------------------------------------------------------------------------------------------------------------
Craig Road...................... 32-003-0020 0.072 (*) N/A N/A
Apex............................ 32-003-0022 0.070 0.068 0.070 0.069
Paul Meyer...................... 32-003-0043 0.071 0.070 0.078 0.073
Walter Johnson.................. 32-003-0071 0.074 0.073 0.077 0.074
Lone Mountain................... 32-003-0072 0.072 (*) N/A N/A
Palo Verde...................... 32-003-0073 0.072 0.071 0.077 0.073
Joel Neal....................... 32-003-0075 0.074 0.074 0.077 0.075
Winterwood...................... 32-003-0538 0.070 0.068 0.073 0.070
Jerome Mack **.................. 32-003-9540 N/A N/A 0.073 N/A
Boulder City.................... 32-003-0601 0.071 0.069 0.070 0.070
Jean............................ 32-003-1019 0.072 0.074 0.074 0.073
[[Page 67604]]
Orr............................. 32-003-1021 0.071 (*) N/A N/A
J.D. Smith...................... 32-003-2002 0.072 0.068 0.072 0.070
----------------------------------------------------------------------------------------------------------------
* Monitor discontinued. N/A = not available.
** 2011 was the first full year of operation of the Jerome Mack ozone monitor.
Table 2--Preliminary 4th High Daily Maximum 8-Hour Ozone Concentrations
for 2012 \a\
------------------------------------------------------------------------
4th
highest
Monitor Site code value
(ppm)
------------------------------------------------------------------------
Apex.......................................... 32-003-0022 0.076
Paul Meyer.................................... 32-003-0043 0.077
Walter Johnson................................ 32-003-0071 0.075
Palo Verde.................................... 32-003-0073 0.078
Joel Neal..................................... 32-003-0075 0.075
Winterwood.................................... 32-003-0538 0.074
Jerome Mack................................... 32-003-0540 0.073
Boulder City.................................. 32-003-0601 0.077
Jean.......................................... 32-003-1019 0.077
J.D. Smith.................................... 32-003-2002 0.076
------------------------------------------------------------------------
\a\ The data in this table are from AQS Preliminary Design Value Report.
Report Date: Oct. 11, 2012. See docket.
B. The Area Must Have a Fully Approved SIP Meeting Requirements
Applicable for Purposes of Redesignation Under Section 110 and Part D
Section 107(d)(3)(E)(ii) and (v) require EPA to determine that the
area has a fully approved applicable SIP under section 110(k) that
meets all applicable requirements under section 110 and part D for the
purposes of redesignation.
1. Basic SIP Requirements Under CAA Section 110
Section 110(a)(2) sets forth the general elements that a SIP must
contain in order to be fully approved. Although section 110(a)(2) was
amended in 1990, a number of the requirements did not change in
substance, and therefore, EPA believes that the pre-amendment EPA-
approved SIP met these requirements in Clark County with respect to
ozone. As to those requirements that were amended, (see 57 FR 27936 and
27939, June 23, 1992), many are duplicative of other requirements of
the Act. EPA has analyzed the Nevada SIP and determined that it is
consistent with the requirements of amended section 110(a)(2). The
Clark County portion of the approved Nevada SIP contains enforceable
emission limitations; requires monitoring, compiling and analyzing of
ambient air quality data; requires preconstruction review of new or
modified stationary sources; provides for adequate funding, staff, and
associated resources necessary to implement its requirements; and
provides the necessary assurances that the State maintains
responsibility for ensuring that the CAA requirements are satisfied in
the event that Clark County is unable to meet its CAA obligations.\8\
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\8\ The applicable SIP for NDEP and Clark County may be found at
https://yosemite.epa.gov/r9/r9sips.nsf/allsips?readform&state=Nevada.
We note that SIPs must be fully approved only with respect to
applicable requirements for purposes of redesignation in accordance
with section 107(d)(3)(E)(ii). Thus, for example, CAA section
110(a)(2)(D) requires that SIPs contain certain measures to prevent
sources in a state from significantly contributing to air quality
problems in another state. However, the section 110(a)(2)(D)
requirements for a state are not linked with a particular
nonattainment area's designation and classification in that state.
EPA believes that the requirements linked with a particular
nonattainment area's designation and classification are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the state.
Thus, we do not believe that these requirements should be
construed to be applicable requirements for purposes of
redesignation. In addition, EPA believes that the other section 110
elements not connected with nonattainment plan submissions and not
linked with an area's attainment status are not applicable
requirements for purposes of redesignation. The State will still be
subject to these requirements after the Clark County ozone planning
area is redesignated. The section 110 and part D requirements, which
are linked with a particular area's designation and classification,
are the relevant measures to evaluate in reviewing a redesignation
request. This policy is consistent with EPA's existing policy on
applicability of conformity (i.e., for redesignations) and
oxygenated fuels requirement. See Reading, Pennsylvania, proposed
and final rulemakings 61 FR 53174-53176 (October 10, 1996), 62 FR
24816 (May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking
61 FR 20458 (May 7, 1996); and Tampa, Florida, final rulemaking 60
FR 62748 (December 7, 1995). See also the discussion of this issue
in the Cincinnati redesignation 65 FR 37890 (June 19, 2000), in the
Pittsburgh redesignation 66 FR 50399 (October 19, 2001), and in the
Los Angeles redesignation 72 FR 6986 (February 14, 2007) and 72 FR
26718 (May 11, 2007). EPA believes that section 110 elements not
linked to the area's nonattainment status are not applicable for
purposes of redesignation.
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On numerous occasions over the past 38 years, NDEP has submitted
and we have approved provisions addressing the basic CAA section 110
provisions. There are no outstanding or disapproved applicable SIP
submittals with respect to the Clark County portion of the SIP that
prevent redesignation of the Clark County 8-hour ozone nonattainment
area for the 1997 8-hour ozone standard.\9\ Therefore, we propose to
conclude that NDEP and Clark County have met all SIP requirements for
Clark County applicable for purposes of redesignation under section 110
of the CAA (General SIP Requirements).
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\9\ Recently, EPA took final limited approval and limited
disapproval on updated new source review (NSR) rules adopted by
Clark County and submitted as a revision to the Nevada SIP (77 FR
64039, October 18, 2012) and issued a partial approval and partial
disapproval of Nevada's ``infrastructure'' SIP for the 1997 8-hour
ozone NAAQS (77 FR 64737, October 23, 2012). While these two final
rules are not full approvals, they do not represent an obstacle to
redesignation of the Clark County 8-hour ozone nonattainment area
because EPA's rationale for finding that the State has met the
requirements of CAA section 107(d)(3)(E)(ii) and (v) does not rely
on a fully-approved nonattainment NSR program, and because the
``infrastructure'' SIP elements that EPA disapproved are not related
to the nonattainment SIP requirements for the Clark County 8-hour
ozone nonattainment area and thus are not relevant for the purposes
of redesignation.
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2. Part D Requirements
a. Introduction
The CAA contains two sets of provisions, subparts 1 and 2, that
address planning and emission control requirements for ozone
nonattainment areas. Both of these subparts are found in title I, part
D of the CAA; sections 171-179 and sections 181-185, respectively.
Subpart 1 contains general, less prescriptive requirements for all
nonattainment areas of any pollutant, including ozone, governed by a
NAAQS. Subpart 2 contains additional, more specific requirements for
ozone nonattainment areas classified under subpart 2.
The applicable subpart 1 requirements are contained in sections
172(c)(1)-(9) and 176 of the CAA. Under subpart 1, with respect to the
Clark County 8-hour ozone nonattainment area, the State of Nevada is
required to submit SIP revisions that provide for:
Implementation of all reasonably available control
measures (RACM), including, at a minimum, reasonably available control
technology for existing sources and attainment of the standard (section
172(c)(1));
Reasonable further progress (section 172(c)(2));
[[Page 67605]]
A comprehensive, accurate, current inventory of actual
emissions from all sources of the relevant pollutant or pollutants in
the area (section 172(c)(3));
Identification and quantification of the emissions, if
any, of any such pollutants which will be allowed in accordance with
section 173(a)(1)(B) (i.e., new or modified stationary sources located
in established economic development zones) (section 172(c)(4));
Permits for the construction and operation of new and
modified major stationary sources in the nonattainment area (section
172(c)(5));
Enforceable emission limitations as may be necessary or
appropriate to provide for attainment of such standard in such area by
the applicable attainment date (section 172(c)(6));
Compliance with section 110(a)(2) of the Act (section
172(c)(7));
Use of equivalent modeling emission inventory, and
planning procedures if approved by EPA (section 172(c)(8));
Contingency measures (section 172(c)(9)); and
Interagency consultation and enforceability for the
purposes of transportation conformity (section 176(c)(5) and 40 CFR
51.390).
As noted above, EPA determined that the Clark County 8-hour ozone
nonattainment area attained the 1997 8-hour ozone NAAQS based on 2007-
2009 ozone data (76 FR 17343, March 29, 2011), and thereby suspended,
under 40 CFR 51.918, the obligation on the State of Nevada to submit an
attainment demonstration and associated reasonably available control
measures (RACM), a reasonable further progress (RFP) plan, contingency
measures and other planning requirements related to attainment of the
1997 8-hour ozone NAAQS until such time as: the area is redesignated to
attainment, at which time the requirements no longer apply; or EPA
determines that the area has violated the 8-hour ozone NAAQS. As such,
the State's compliance status with the attainment-related SIP
requirements under subpart 1 is not relevant for the purposes of
evaluating the State's redesignation request. In addition, we note that
the State has not sought to exercise the options available under CAA
sections 172(c)(4) (identification and quantification of certain
emissions increases) or 172(c)(8) (equivalent techniques).
With respect to the requirements associated with subpart 2, we note
that, as discussed in more detail above, the Clark County 8-hour ozone
nonattainment area was initially designated nonattainment under subpart
1 of the CAA, but was subsequently classified as marginal nonattainment
for the 1997 8-hour ozone standard under subpart 2 of part D of the
CAA. See 77 FR 28424 (May 14, 2012). The effective date of EPA's
classification of the Clark County 8-hour ozone nonattainment area as
marginal was June 13, 2012, and under the final May 14, 2012 subpart 2
classifications rule, states have one year from the effective date of
that final rule (i.e., June 13, 2013) to submit SIP revisions.
NDEP has not submitted any SIP revisions for the Clark County 8-
hour ozone nonattainment area in response to the area's recent
classification to marginal.\10\ However, EPA believes that this does
not preclude this redesignation from being approved. This belief is
based upon: (1) EPA's longstanding policy of evaluating requirements in
accordance with the requirements due at the time redesignation request
is submitted; and (2) consideration of the inequity of applying
retroactively any requirements that might in the future be applied.
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\10\ In any event, the State of Nevada would not be required to
submit a SIP revision under section 182(a)(2)(A) to correct RACT
rules for the Clark County 8-hour ozone nonattainment area because
the area had not been identified by EPA under the pre-1990 CAA as an
area that had RACT rule deficiencies. At that time, all of Clark
County, including Las Vegas Valley, was designated as attainment for
the then-current 1-hour ozone standard and had been so designated
since 1986. See 51 FR 41788 (November 19, 1986). We also note that,
for the purposes of meeting the SIP requirements for nonattainment
areas for carbon monoxide, the State previously submitted, and EPA
approved, SIP revisions that would meet the vehicle inspection and
maintenance requirements under CAA section 182(a)(2)(B) for the
Clark County 8-hour ozone nonattainment area, if those requirements
were applicable for the purposes of redesignation. See at 69 FR
56351 (September 21, 2004), 73 FR 38124 (July 3, 2008), and 74 FR
3975 (January 22, 2009).
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First, at the time the redesignation request was submitted (i.e.,
April 11, 2011), the Clark County 8-hour ozone nonattainment area was
not classified under subpart 2, and thus, subpart 2 requirements were
not yet due for this area. Under EPA's longstanding interpretation of
section 107(d)(3)(E) of the CAA, to qualify for redesignation, states
requesting redesignation to attainment must meet only the relevant SIP
requirements that came due prior to the submittal of a complete
redesignation request. See the Calcagni memo and also the September 17,
1993, Michael Shapiro Memorandum (``State Implementation Plan (SIP)
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after November 15, 1992,'' Memorandum
from Michael Shapiro, Acting Assistant Administrator for Air and
Radiation), and 60 FR 12459, (March 7, 1995) (Redesignation of Detroit-
Ann Arbor, Michigan); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004)
(upholding this interpretation); 68 FR 25418, 25424, 25427 (May 12,
2003) (redesignation of St. Louis, Missouri).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The D.C. Circuit Court has recognized the inequity in such
retroactive rulemaking (see Sierra Club v. Whitman 285 F. 3d 63 (D.C.
Cir. 2002)), in which the court upheld a district court's ruling
refusing to make retroactive an EPA determination of nonattainment that
was past the statutory due date. Such a determination would have
resulted in the imposition of additional requirements on the area. The
court stated, ``[a]lthough EPA failed to make the nonattainment
determination within the statutory frame, Sierra Club's proposed
solution only makes the situation worse. Retroactive relief would
likely impose large costs on the states, which would face fines and
suits for not implementing air pollution prevention plans in 1997, even
though they were not on notice at the time.'' Id. at 68. Similarly
here, it would be unfair to penalize the Clark County 8-hour ozone
nonattainment area by applying to it, for purposes of redesignation,
additional SIP requirements under subpart 2 that were not in effect or
yet due at the time it submitted its redesignation request, or the time
that the Clark County 8-hour ozone nonattainment area attained the
NAAQS.
In the following paragraphs, we explain how the State has met the
SIP revision requirements for those remaining requirements under part D
that are not currently suspended or not otherwise applicable.
b. Emissions Inventory
EPA regulations at 40 CFR 51.915 extend the SIP requirements under
CAA sections 172(c)(3) to areas designated as nonattainment for the
1997 8-hour ozone standard. CAA section 172(c)(3) requires States to
submit a comprehensive, accurate, current inventory of actual VOC and
NOX emissions for the baseline year from all sources within
the nonattainment area. The inventory is to address actual VOC and
NOX emissions during the ozone season, and all stationary
(generally referring to larger stationary source or ``point'' sources),
area (generally referring to smaller stationary and
[[Page 67606]]
fugitive (non-smokestack) sources), and mobile (on-road, nonroad,
locomotive and aircraft) sources are to be included in the inventory.
We interpret the Act such that the emission inventory requirements
of section 172(a)(3) are satisfied by the inventory requirements of the
maintenance plan. See 57 FR 13498, at 13564 (April 16, 1992). Thus, our
proposed approval of the Clark County Ozone Maintenance Plan and
related VOC and NOX emission inventories and our proposed
approval of NDEP's redesignation request would satisfy the requirements
of sections 172(a)(3) for the purposes of redesignation of the Clark
County 8-hour ozone nonattainment area to attainment for the 1997 8-
hour ozone NAAQS.
c. Permits for New and Modified Major Stationary Sources
To meet the requirements of CAA section 172(c)(5), states must
submit SIP revisions that meet the requirements under 40 CFR 51.165
(``Permit requirements''), and EPA regulations at 40 CFR 51.914 extend
the SIP requirements of 40 CFR 51.165 to areas designated as
nonattainment for the 1997 8-hour ozone standard.
Under 40 CFR 51.165, states are required to submit SIP revisions
that establish certain requirements for new or modified stationary
sources in nonattainment areas, including provisions to ensure that
major new sources or major modifications of existing sources of
nonattainment pollutants incorporate the highest level of control,
referred to as the Lowest Achievable Emission Rate (LAER), and that
increases in emissions from such stationary sources are offset so as to
provide for reasonable further progress towards attainment in the
nonattainment area.
The process for reviewing permit applications and issuing permits
for new or modified stationary sources of air pollution is referred to
as ``New Source Review'' (NSR). With respect to nonattainment
pollutants in nonattainment areas, this process is referred to as
``nonattainment NSR.'' With respect to pollutants for which an area is
designated as attainment or unclassifiable, states are required to
submit SIP revisions that ensure that major new stationary sources and
major modifications of existing stationary sources meet the Federal
requirements for Prevention of Significant Deterioration'' (PSD),
including application of ``best available control technology,'' for
each applicable pollutant emitted in significant amounts, among other
requirements.
As noted above, under Nevada law, specific electric steam-
generating emission units (i.e., power plants) within Clark County are
under NDEP jurisdiction. See Nevada Revised Statutes (NRS) section
445B.500. Thus, state regulations govern air pollution permits issued
by NDEP to those units. Clark County DAQ is responsible for all other
stationary sources emissions units, and Clark County regulations govern
air pollutant permits issued to them.
Under the Clean Air Act Amendments of 1977, States with designated
nonattainment areas were required to amend their NSR rules to impose
LAER and offset requirements on new major sources and major
modifications of nonattainment pollutants in nonattainment areas. As
noted previously, under the 1977 Act Amendments, we designated Las
Vegas Valley as a nonattainment area for photochemical oxidant, later
changed to ozone. To address the nonattainment NSR requirements flowing
from the 1977 Act Amendments, the State of Nevada amended its
nonattainment NSR rules (Nevada Air Quality Regulations (NAQR) Article
13), and NDEP submitted them to EPA for approval as part of the Nevada
SIP. We approved the amended NSR rules in 1981. See 46 FR 21758 (April
14, 1981). Under these EPA-approved rules, LAER and offsets have been
required for new ``point sources'' that cause emissions greater than
100 tons per year of ozone precursors in ozone nonattainment areas. In
the 1980's EPA also approved Clark County NSR rules for Las Vegas
Valley as meeting the related requirements under the 1977 Amended Act
and EPA regulations.
The 1990 Clean Air Act Amendments retained the core nonattainment
NSR elements of LAER and offsets but added other requirements. To
address the nonattainment designations of Las Vegas Valley for carbon
monoxide and particulate matter for sources under NDEP jurisdiction and
in lieu of amending the rules to meet the additional NSR requirements
under the 1990 Act Amendments, the State of Nevada submitted a rule
(Nevada Administrative Code (NAC) section 445B.22083) establishing a
construction ban for new major sources and major modifications within
the nonattainment area. NAC 445B.22083, with a limited exception,
prohibits new power plants or major modifications to existing power
plants under State jurisdiction within four hydrographic areas in Clark
County, including Las Vegas Valley (hydrographic area No. 212). See 69
FR 31056, 31059 (June 2, 2004) and 69 FR 54006, at 54017 (September 7,
2004). We approved NAC 445B.22083 into the Nevada SIP most recently in
2008. See 73 FR 20536 (April 16, 2008). However, the prohibition in NAC
445B.22083 does not cover the entire Clark County 8-hour ozone
nonattainment area, which includes the four hydrographic areas listed
in NAC 445B.22083, but also includes all or portions of seven
additional hydrographic areas in Clark County. See 40 CFR 81.329. Thus,
the State of Nevada does not have a nonattainment NSR program meeting
the requirements of 40 CFR 51.165 for those sources under NDEP
jurisdiction within the Clark County 8-hour ozone nonattainment area.
With respect to Clark County regulations, EPA recently finalized a
limited approval and limited disapproval of updated Clark County rules
governing NSR, including nonattainment NSR, but also PSD. See 77 FR
64039 (October 18, 2012). Thus, Clark County does not have a
nonattainment NSR program meeting the requirements of 40 CFR 51.165 for
those sources under Clark County DAQ jurisdiction within the Clark
County 8-hour ozone nonattainment area.
We have determined, however, that, since PSD requirements \11\ will
apply after redesignation, an area being redesignated to attainment
need not comply with the requirement that a NSR program be approved
prior to redesignation, provided that the state demonstrates
maintenance of the NAAQS in the area without implementation of
nonattainment NSR. A more detailed rationale for this view is described
in a memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, titled ``Part D New Source Review
Requirements for Areas Requesting Redesignation to Attainment.'' See
redesignation rulemakings for Detroit, Michigan (60 FR 12459, March 7,
1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7,
1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and, Grand
Rapids, Michigan (61 FR 31831, June 21, 1996).
---------------------------------------------------------------------------
\11\ PSD requirements control the growth of new source emissions
in areas designated as attainment for a NAAQS.
---------------------------------------------------------------------------
Based on our review of the Clark County Ozone Maintenance Plan, we
conclude the maintenance demonstration included therein does not rely
on implementation of nonattainment NSR because the plan applies
standard growth factors to stationary source emissions and does not
rely on NSR offsets to reduce the rate of increase in emissions over
time from point sources. The Ozone
[[Page 67607]]
Maintenance Plan does include a line-item for emission reduction
credits for VOC and NOX but adds them to future projected
emissions rather than assuming that they would be used to reduce
emissions growth from stationary sources. Therefore, EPA concludes that
the State need not have a fully approved nonattainment NSR program as
an applicable requirement for approval of the State's ozone
redesignation request for the Clark County ozone planning area.
Because the State's PSD program has been disapproved with respect
to sources under NDEP jurisdiction, the Federal PSD requirements under
40 CFR 52.21 will apply to new major sources or major modifications of
ozone precursors under NDEP jurisdiction once the Clark County 8-hour
ozone nonattainment area is redesignated to attainment. See 40 CFR
52.1485(b). NDEP implements and enforces the Federal PSD regulations
under a delegation agreement with EPA Region IX.
With respect to stationary sources under Clark County DAQ
jurisdiction, the County's PSD program will apply to ozone precursor
emissions of new major sources or major modifications upon
redesignation of the Clark County 8-hour ozone nonattainment area to
attainment. We note that Clark County's PSD program is not fully
approved, but the deficiencies that formed the basis for EPA's recent
limited approval and limited disapproval action would not interfere
with maintenance of the ozone standard for two reasons. First, the
deficiencies that relate to ozone precursors are limited to a few
definitions: ``allowable emissions,'' ``baseline actual emissions,''
``net emissions increase,'' and ``major modification.'' See 77 FR
64039, at 64047 (October 18, 2012). Second, the limited disapproval
triggered an obligation on EPA to promulgate a Federal implementation
plan (FIP) to remedy the PSD deficiencies by November 19, 2014 unless
NDEP submits, and EPA approves, amended Clark County rules that correct
the deficiencies prior to that time. Thus, the overlap in time during
which the Clark County 8-hour area would be redesignated to attainment
but would not be subject to a fully-approved PSD program would be less
than two years.
d. Compliance With Section 110(a)(2)
Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, we conclude the Nevada
SIP meets the requirements of section 110(a)(2) applicable for purposes
of this redesignation.
e. Conformity Requirements
Under section 176(c) of the Clean Air Act Amendments of 1990,
States are required to establish criteria and procedures to ensure that
Federally supported or funded projects conform to the air quality
planning goals in the applicable SIP. Section 176(c) further provided
that State conformity provisions must be consistent with Federal
conformity regulations that the CAA required EPA to promulgate. EPA's
conformity regulations are codified at 40 CFR part 93, subparts A
(referred to herein as ``transportation conformity'') and B (referred
to herein as ``general conformity''). Transportation conformity applies
to transportation plans, programs, and projects developed, funded, and
approved under title 23 U.S.C. or the Federal Transit Act, and general
conformity applies to all other Federally-supported or funded projects.
SIP revisions intended to address the conformity requirements are
referred to herein as ``conformity SIPs.''
In November 2008, EPA approved Clark County's transportation
conformity criteria and procedures as meeting the related SIP
requirements under part 51, subpart T (``Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and Project
Developed, Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Laws''). See 73 FR 66182 (November 7, 2008).
With respect to ``general conformity,'' we note that, in August
2005, Congress passed the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which
eliminated the requirement for States to adopt and submit conformity
SIPs addressing general conformity requirements. See 75 FR 17254 (April
5, 2010) for conforming changes to EPA's general conformity
regulations. The State of Nevada is thus no longer required to submit a
general conformity SIP for the Clark County 8-hour ozone planning area.
Therefore, based on our approval of Clark County's transportation
conformity SIP and SAFETEA-LU's elimination of the general conformity
SIP requirement, we find that Clark County and the State have met the
requirements for conformity SIPs in the Clark County 8-hour ozone
nonattainment area under CAA section 176(c). In any event, EPA believes
it is reasonable to interpret the conformity requirements as not
applicable for purposes of evaluating a redesignation request under
section 107(d)(3)(E). See Wall v. EPA, 265 F.3d 426, 439 (6th Cir.
2001) upholding this interpretation.
C. The Area Must Show the Improvement in Air Quality Is Due to
Permanent and Enforceable Emissions Reductions
Section 107(d)(3)(E)(iii) precludes redesignation of a
nonattainment area to attainment unless EPA determines that the
improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
SIP and applicable Federal air pollution control regulations and other
permanent and enforceable regulations. Under this criterion, the state
must be able to reasonably attribute the improvement in air quality to
emissions reductions which are permanent and enforceable. Attainment
resulting from temporary reductions in emissions rates (e.g., reduced
production or shutdown due to temporary adverse economic conditions) or
unusually favorable meteorology would not qualify as an air quality
improvement due to permanent and enforceable emission reductions.
The Clark County Ozone Maintenance Plan credits the following
control measures as providing the emissions reductions sufficient to
attain the 1997 8-hour ozone NAAQS in the Clark County 8-hour ozone
nonattainment area through year 2022: the Federal Tier 2 motor vehicle
emissions standards; the Federal highway diesel rule; the Federal large
nonroad diesel engines rule; the Federal nonroad spark-ignition engines
and recreational engines standards; the Federal nonroad spark-ignition
engines and equipment standard; the State's vehicle I/M program; and
the County's NSR and stationary source prohibitory rules. As discussed
above, the State's vehicle inspection and maintenance (I/M) program and
the County's NSR rules and VOC-related prohibitory rules (such as
section 52 (``Handling of Gasoline at Service Stations, Airports and
Storage Tanks'')) have been approved into the SIP, and thus are
federally enforceable.
The Federal on-road and nonroad vehicle and engine standards cited
above have contributed to improved air quality through the gradual,
continued turnover and replacement of older vehicle models with newer
models manufactured to meet increasingly stringent Federal tailpipe
emissions standards. The new Federal fuel standards cited above have
resulted in more immediate emissions reductions of ozone precursors and
provide for the use of advanced pollution control technology that would
not otherwise be possible. The emissions reductions from
[[Page 67608]]
the Federal vehicle and fuel standards are reflected in the emissions
inventories and maintenance demonstration discussed later in this
document through the use of EPA's MOBILE emission factor model for on-
road motor vehicles and NONROAD emission factor model for nonroad
vehicles.
We note that some of the control measures cited in the Clark County
Ozone Maintenance Plan provided emissions reductions since 2002, and
thus, the improvement in air quality since 2002 may reasonably be
attributed to them. For instance, the new Federal gasoline and diesel
fuel standards have greatly lowered the allowable sulfur content of
these fuels and have resulted in lower emissions from cars and trucks,
particularly of sulfur dioxide, particulate matter, and NOX.
The Clark County Ozone Maintenance Plan (see Figure 4-1 from the plan)
illustrates the ambient ozone trend in the nonattainment area from
2003-to 2009 and layers the sequence of Federal engine and fuel
standards phase-in over that period to support the inference that the
standards have contributed to the declining trend in ambient ozone
concentrations.
A rough sense of the effectiveness of the control measures to
reduce VOC and NOX emissions can be gained by a comparison
between area-wide emissions in 2002 (a nonattainment year) with those
in 2008 (an attainment year). In 2002, area-wide VOC and NOX
emissions in the Clark County 8-hour ozone nonattainment area were
estimated to be approximately 318 and 279 tons per day (summer average
day), respectively, and in 2008, despite an increase in population and
vehicle-miles-traveled (VMT) of approximately 27% and 48%,
respectively, area-wide emissions dropped significantly (to 302 tons
per day of VOC and 164 tons per day of NOX).\12\
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\12\ See table 4-1, and appendix A, table 3-1, from Clark County
DAQ's 8-Hour Ozone Early Progress Plan for Clark County, Nevada
(June 2008) and tables 4-1, 6-1, 6-2, and 6-3 from the Clark County
Ozone Maintenance Plan.
---------------------------------------------------------------------------
With respect to the connection between the emissions reductions and
the improvement in air quality, we also conclude that the air quality
improvement in the Clark County 8-hour ozone nonattainment area since
2002 is not the result of a local economic downturn or unusual or
extreme weather patterns. To draw this conclusion, we reviewed
temperature and precipitation data for Las Vegas \13\ and did not
observe any anomaly over the period from 2002 relative to long-term
averages. We do recognize that a significant economic slowdown occurred
nationally starting in 2008, and that the Las Vegas metropolitan area
was more significantly affected than most other areas, but we note that
the downward ozone trend had already been established before that time
(see Figure 4-1 on page 4-8 of the Ozone Maintenance Plan).
---------------------------------------------------------------------------
\13\ Our reference for climate data is ``Climate of Las Vegas,
Nevada,'' by Andrew Gorelow and Chris Stachelski, updated October
2012, as well as the climate data discussed on pages 4-2 and 4-3 of
the Ozone Maintenance Plan.
---------------------------------------------------------------------------
Thus, we find that the improvement in air quality in the Clark
County 8-hour ozone nonattainment area is the result of permanent and
enforceable emissions reductions from a combination of the Federal
vehicle and fuel measures and EPA-approved State and local control
measures. As such, we propose to find that the criterion for
redesignation set forth at CAA section 107(d)(3)(E)(iii) is satisfied.
D. The Area Must Have A Fully Approved Maintenance Plan Under CAA
Section 175A
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
We interpret this section of the Act to require, in general, the
following core elements: attainment inventory, maintenance
demonstration, monitoring network, verification of continued
attainment, and contingency plan. See Calcagni memo, pages 8 through
13.
Under CAA section 175A, a maintenance plan must demonstrate
continued attainment of the applicable NAAQS for at least ten years
after EPA approves a redesignation to attainment. Eight years after
redesignation, the State must submit a revised maintenance plan that
demonstrates continued attainment for the subsequent ten-year period
following the initial ten-year maintenance period. To address the
possibility of future NAAQS violations, the maintenance plan must
contain such contingency provisions, that EPA deems necessary, to
promptly correct any violation of the NAAQS that occurs after
redesignation of the area. Based on our review and evaluation of the
plan, as detailed below, we are proposing to approve the Clark County
Ozone Maintenance Plan because we believe that it meets the
requirements of CAA section 175A.
1. Attainment Inventory
A maintenance plan for the 1997 8-hour ozone standard must include
an inventory of emissions of ozone precursors (VOC and NOX)
in the area to identify a level of emissions that are sufficient to
attain the 1997 8-hour ozone NAAQS. This inventory must be consistent
with EPA's most recent guidance on emissions inventories for
nonattainment areas available at the time and should represent
emissions during the time period associated with the monitoring data
showing attainment. The inventory must also be comprehensive, including
emissions from stationary point sources, area sources, nonroad mobile
sources, and on-road mobile sources, and must be based on actual
``ozone season data'' (i.e., summertime) emissions.
Clark County DAQ selected year 2008 as the year for the attainment
inventory in the Clark County Ozone Maintenance Plan. Year 2008 is one
of the years of the three-year period (2007-2009) on which EPA made an
attainment determination for the Clark County 8-hour ozone
nonattainment area in 2011. See 76 FR 17343 (March 29, 2011). The
attainment inventory will generally be the actual inventory during the
time period the area attained the standard. Thus, Clark County DAQ's
selection of 2008 for the attainment inventory is acceptable.
Based on our review of the Clark County Ozone Maintenance Plan, we
find that the emissions inventories in the plan are comprehensive in
that they include estimates of VOC and NOX emissions from
all of the relevant source categories, which the plan divides among
point sources,\14\ nonpoint sources,\15\ commercial aviation, Federal
aviation (i.e., Nellis Air Force Base), on-road mobile, nonroad mobile,
and biogenic \16\ sources. See table 6-2 and pages 6-2 through 6-5 in
the Ozone Maintenance Plan. Appendix A to the Ozone Maintenance Plan
contains source-specific descriptions of emission calculation
procedures and sources of input data.
---------------------------------------------------------------------------
\14\ The Ozone Maintenance Plan uses the term, ``point
sources,'' to refer to those stationary source facilities that are
required to report their emissions to Clark County DAQ or NDEP.
\15\ The Ozone Maintenance Plan uses the term, ``nonpoint
sources,'' to refer to those stationary and area sources that fall
below point source reporting levels and that are too numerous or
small to identify individually.
\16\ For the Ozone Maintenance Plan, ``biogenic sources''
include agricultural crops; lawn grass; forests that produce
isoprene, monoterpene, alpha-pinene, and other VOC emissions; and
soils that generate trace amounts of NOX.
---------------------------------------------------------------------------
For point sources, Clark County DAQ based the inventory estimates
on source-reported actual 2008 emissions data but adjusted the reported
values to reflect a typical summer day at each emissions unit within
the source facilities based on information provided by the
[[Page 67609]]
facilities. For nonpoint sources, Clark County DAQ used several methods
to estimate area source activity levels and emissions, including
applying local activity levels, apportioning national or statewide
activity levels to the local level, applying per capita emission
factors considering county-specific populations and using specific
method abstracts detailed within the submittal. The documentation
supplied in the emissions inventory submittal (i.e., appendix A to the
Ozone Maintenance Plan) shows how the specific emissions were
calculated for each area source category.
With respect to most nonroad mobile sources, Clark County DAQ used
EPA's nonroad emissions model NONROAD2008a, the current version of the
model at the time the plan was created. The model includes both
emissions factors and default county level population and activity
data. The model estimates both emissions factors and emissions. This
includes more than 80 basic and 260 specific types of non-road
equipment, and further stratifies equipment by horsepower rating and
fuel type. The model has default estimates, variables and factors used
in the calculations. No local data sets were available for Clark
County, therefore only model defaults were used.
With respect to commercial and Federal aviation sources, Clark
County DAQ relied on airport-specific emissions inventory information
provided by the Clark County Aviation Department for the five
commercial airports located within the nonattainment area (McCarran
International Airport, North Las Vegas Airport, Henderson Executive
Airport, Jean Airport, and Perkins Field Airport) and information
provided by the U.S. Air Force for Nellis Air Force Base. Airport
support equipment and airport-related stationary source emissions were
included in the airport-specific inventories rather than in the general
source categories such as point sources or nonroad mobile. Locomotive
emissions were estimated by Clark County DAQ based on fuel consumption
within the nonattainment area by the Union Pacific Railroad and
included in the aggregate emissions estimates for ``nonroad mobile.''
To estimate biogenic emissions, Clark County DAQ used the Model of
Emissions of Gasses and Aerosols from Nature (MEGAN) estimates,
measured emission factors, and species information from completed
surveys.
The on-road mobile source emissions estimates in the Ozone
Maintenance Plan were prepared by Clark County DAQ using the CONCEPT MV
emissions model,\17\ EPA's MOBILE6.2 emissions factors, the Regional
Transportation Commission of Southern Nevada's (RTC's) transportation
demand modeling results,\18\ and Highway Performance Monitoring System
(HPMS) data from the Nevada Department of Transportation.
---------------------------------------------------------------------------
\17\ ``CONCEPT'' refers to the CONsolidated Community Emissions
Processor Tool (CONCEPT,) and ``MV'' refers to the motor vehicle
module of the CONCEPT model.
\18\ One of the principal sources of transportation data used to
develop the emissions inventories in the Ozone Maintenance Plan is
the Regional Transportation Plan 2009-2030, approved by the RTC in
November 2008. See page 6-1 of the maintenance plan.
---------------------------------------------------------------------------
MOBILE6.2 estimates emissions by vehicle class, and provides
emissions factors for exhaust emissions; evaporative emissions; and
brake and tire wear emissions. There are a total of 28 vehicle classes
used in MOBILE6.2. For the Ozone Maintenance Plan, Clark County DAQ
aggregated the emissions factors calculated from MOBILE6.2 into eight
vehicle classes, which are the same as used in MOBILE5. The VMT was
adjusted by comparisons to observed vehicle counts by facility types,
by using HPMS adjustment factors and to account for additional transit
vehicles. The CONCEPT MV model processes detailed inputs (e.g., VMT mix
varying by hour of day, day of week, and month of year) and adjusts
speeds to account for congestion based on transportation demand
modeling outputs. For areas outside of the Las Vegas Valley, county
level VMT estimates based on HPMS data was used and no reductions
associated with the State's motor vehicle inspection and maintenance
(I/M) program were included since vehicles in the rural portions of the
county are not required to participate in the program.
The on-road emissions estimates for the Ozone Maintenance Plan
assumed the implementation of the Federal heavy-duty diesel rule,
limits to Reid Vapor Pressure (RVP) of 9 pounds per square inch (psi)
with a 1.0 psi waiver for ethanol-blended fuels \19\ and the phase-in
of tier 2 motor vehicle emission standards, and the operation of an
enhanced vehicle I/M program in the urban areas of Clark County.
---------------------------------------------------------------------------
\19\ The market share of ethanol blend in summertime is assumed
to be approximately 63% for 2008 and 100% for 2015 and 2022.
---------------------------------------------------------------------------
Table 3 presents the VOC and NOX emissions estimates
contained in the Ozone Maintenance Plan for 2008 and also presents the
plan's projected emissions inventories of ozone precursors in an
interim year (2015) and the maintenance plan's horizon year (2022).\20\
Based on the estimates in Table 3, on-road emissions sources accounted
for approximately 22% of the VOC and 42% of the NOX
emissions generated within the 8-hour ozone nonattainment area in 2008.
Nonroad sources (including nonroad equipment, airports, and
locomotives) accounted for approximately 15% and 34% of the VOC and
NOX inventory, respectively. Point and area source emissions
accounted for approximately 19% and 21% of the VOC and NOX
inventory, respectively, while biogenic emissions contributed 44% of
the VOC inventory but little (3%) to the overall NOX
inventory.
---------------------------------------------------------------------------
\20\ The emissions inventories reflect county-wide emissions
which include both the nonattainment area portion of the county and
the portion of the county designated as ``unclassifiable/
attainment'' for the 1997 8-hour ozone NAAQS. County-wide emissions
are acceptable to characterize emissions within the Clark County
ozone nonattainment area because over 95% of the population of the
county resides in the nonattainment area.
Table 3--2008 and Projected 2015 and 2022 VOC and NOX Emissions Total Daily Emissions
(Tons per day, average summer weekday) \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008 2015 2022
Emission source Category ---------------------------------------------------------------------
VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point.......................................... Clark County Point............... 1 12 1 12 1 12
Projected Power Plant............ 0 0 < 0.5 3 < 0.5 3
Clark County NDEP Point.......... < 0.5 17 < 0.5 17 < 0.5 17
Airports....................................... Clark County DOA................. 3 11 3 15 3 17
Ivanpah Airport.................. 0 0 < 0.5 < 0.5 1 11
Nellis AFB..................................... Nellis AFB....................... 1 1 1 2 1 2
[[Page 67610]]
Nonpoint Sources............................... Nonpoint Sources................. 57 5 66 6 76 6
Locomotive..................................... Locomotive....................... < 0.5 2 < 0.5 2 < 0.5 2
On-road Mobile................................. On-road Mobile................... 65 68 45 35 37 23
Nonroad Mobile................................. Nonroad Mobile................... 43 41 32 28 30 18
Biogenic....................................... Biogenic......................... 132 5 132 5 132 5
Banked Emission Reduction Credits (ERCs........ DAQ ERC Bank..................... 0 0 < 0.5 1 < 0.5 1
ERCs from Mohave Generating...... 0 0 < 0.5 20 < 0.5 20
ERCs from Reid-Gardner........... 0 0 0 2 0 2
---------------------------------------------------------------------
Total...................................... ................................. 302 164 282 146 282 139
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Derived from table 1-1 of appendix A to the Ozone Maintenance Plan. For the purposes of this table, the estimates contained in the maintenance plan
have been rounded to the nearest whole number (except for values greater than zero but less than 0.5, which are shown as ``< 0.5''). The sum of the
values in each column may not equal the total shown due to rounding. DOA = Clark County Department of Aviation; AFB = Air Force Base; and ERCs =
emission reduction credits.
Based on our review of the emissions inventories (and related
documentation) from the Ozone Maintenance Plan, we find that the
inventories for 2008 are comprehensive, that the methods and
assumptions used by Clark County DAQ to develop the 2008 emission
inventory are reasonable, and that the inventories reasonably estimate
actual ozone season emissions in an attainment year. Moreover, we find
that the 2008 emissions inventories in the Ozone Maintenance Plan
reflect the latest planning assumptions and emissions models available
at the time the plan was developed, and provide a comprehensive and
reasonably accurate basis upon which to forecast ozone precursor
emissions for years 2015 and 2022.
2. Maintenance Demonstration
CAA section 175A(a) requires that the maintenance plan ``provide
for the maintenance of the national primary ambient air quality
standard for such air pollutant in the area concerned for at least 10
years after the redesignation.'' Generally, a state may demonstrate
maintenance of the ozone NAAQS by either showing that future emissions
will not exceed the level of the attainment inventory or by modeling to
show that the future mix of sources and emissions rates will not cause
a violation of the NAAQS. For areas that are required under the Act to
submit modeled attainment demonstrations, the maintenance demonstration
should use the same type of modeling. Calcagni memorandum, page 9. The
Clark County 8-hour ozone nonattainment area was not required to submit
a modeled attainment demonstration, and thus, the Clark County Ozone
Maintenance Plan may demonstrate maintenance based on a comparison of
existing and future emissions of ozone precursors.\21\
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\21\ A maintenance demonstration need not be based on ozone
modeling. See Wall v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 66
FR 53094, 53099-53100 (October 19, 2001), and 68 FR 25413, 25430-
25432 (May 12, 2003).
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Clark County DAQ used projected emissions \22\ for point and non-
point sources from calendar years 2008 and 2018 to back calculate the
growth factors for all ozone precursor emissions for both inventory
years. The derived growth factors were then mathematically extrapolated
to account for a 14-year (2008 through 2022) spread. These 2022 growth
factors were then multiplied by the 2008 actual emissions to produce
the 2022 projected point source emissions. An interim year (2015)
projected emissions inventory is also included. The 2015 emissions were
calculated using half of the growth value of the 2022 projections.
Corrections for rule effectiveness were not applied to these projected
emissions. On-road emissions were estimated for the 2008 base year and
for projection years 2015 and 2022 and reflect a 26% increase in VMT
from 2008 to 2015 and a 63% increase in VMT from 2008 to 2022 based on
RTC projections. See table 6-1 in the Ozone Maintenance Plan.
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\22\ The projected emissions were obtained from the 2005 Clark
County Consolidated Emission Inventory Report (Environ, May 31,
2007, Appendix A).
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In addition to accounting for area-wide growth trends, Clark County
DAQ added emissions from specific projects that are expected to become
operational during the maintenance period, including the Nellis Air
Force Base F-35 beddown project, a new power plant, a new airport
(Ivanpah), and new heliport (Sloan), in the future-year emissions
inventories, and also added in emissions reduction credits (ERCs) from
certain stationary sources in the event that the ERCs are used for the
purposes of issuing permits for new or modified stationary sources in
the air quality planning area. We have reviewed the methods and
assumptions, as described in connection with the attainment inventory,
that Clark County DAQ used to project emissions to 2015 and 2022 for
the various source categories and find them to be reasonable.
Table 3 compares the VOC and NOX emissions estimated for
the Clark County 8-hour ozone nonattainment area for 2008 with those
for 2015 and 2022 by source category. The projected VOC and
NOX emissions show that VOC and NOX emissions
would remain well below the attainment levels throughout the 10-year
maintenance period and thereby adequately demonstrating maintenance
through that period.
3. Monitoring Network
Continued ambient monitoring of an area is generally required over
the maintenance period. As discussed in section V.A of this document,
ozone is currently monitored by Clark County DAQ at ten sites within
the Clark County 8-hour ozone nonattainment area. In the Ozone
Maintenance Plan (see page 6-11 of the plan), Clark County DAQ
indicates its intention to continue operation of an air quality
monitoring network to verify continued attainment of the 1997 8-hour
ozone NAAQS.\23\ The Clark County Ozone
[[Page 67611]]
Maintenance Plan also notes that Clark County DAQ's SLAMS air quality
monitoring system (which includes ambient ozone monitoring) will be
reviewed annually pursuant to 40 CFR 58.20(d) to determine whether the
system continues to meet the applicable monitoring objectives.\24\ We
find the County's commitment for continued ambient ozone monitoring as
set forth in the Ozone Maintenance Plan to be acceptable.
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\23\ Although the Ozone Maintenance Plan is not explicit in this
regard, we presume that Clark County DAQ's intention to continue
operation of a monitoring network means that the agency intends to
do so consistent with EPA's monitoring requirements in 40 CFR part
58 (``Ambient Air Quality Surveillance'').
\24\ EPA's requirements for annual review of monitoring networks
are no longer codified at 40 CFR 58.20(d), but are now found at 40
CFR 58.10.
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4. Verification of Continued Attainment
NDEP and the Clark County Board of County Commissioners have the
legal authority to implement and enforce the requirements of the Ozone
Maintenance Plan. This includes the authority to adopt, implement and
enforce any emission control contingency measures determined to be
necessary to correct ozone NAAQS violations. To verify continued
attainment, Clark County DAQ commits in the Ozone Maintenance Plan to
the continued operation of an ozone monitoring network that meets EPA
ambient air quality surveillance requirements.
Second, the transportation conformity process, which would require
a comparison of on-road motor vehicle emissions that would occur under
new or amended regional transportation plans and programs with the
MVEBs in the Ozone Maintenance Plan, represents another means by which
to verify continued attainment of the 1997 8-hour ozone NAAQS in the
Clark County 8-hour ozone area given the relative importance of motor
vehicle emissions to the overall emissions inventories of ozone
precursors. See page 6-13 of the Ozone Maintenance Plan. Lastly, while
not cited in the plan, NDEP and Clark County DAQ must inventory
emissions sources and report to EPA on a periodic basis under 40 CFR
part 51, subpart A (``Air Emissions Reporting Requirements''). These
emissions inventory updates will provide a third means with which to
track emissions in the area relative to those projected in the
maintenance plan and thereby verify continued attainment of the NAAQS.
These methods are sufficient for the purpose of verifying continued
attainment.
5. Contingency Provisions
Section 175A(d) of the Act requires that maintenance plans include
contingency provisions, as EPA deems necessary, to promptly correct any
violations of the NAAQS that occur after redesignation of the area.
Such provisions must include a requirement that the State will
implement all measures with respect to the control of the air pollutant
concerned which were contained in the SIP for the area before
redesignation of the area as an attainment area.
Under section 175A(d), contingency measures identified in the
contingency plan do not have to be fully adopted at the time of
redesignation. However, the contingency plan is considered to be an
enforceable part of the SIP and should ensure that the contingency
measures are adopted expeditiously once they are triggered by a
specified event. The maintenance plan should clearly identify the
measures to be adopted, a schedule and procedure for adoption and
implementation, and a specific timeline for action by the State. As a
necessary part of the plan, the State should also identify specific
indicators or triggers, which will be used to determine when the
contingency measures need to be implemented.
As required by section 175A of the CAA, Clark County DAQ has
adopted a contingency plan to address possible future ozone air quality
problems. See section 6.8 of the maintenance plan. Clark County DAQ
commits to examining ambient air quality data within 30 days of
collection to determine if the ozone NAAQS has been exceeded. The
contingency plan will be triggered 60 days after Clark County DAQ
confirms a violation of the 1997 8-hour ozone NAAQS (i.e., a design
value equal to or greater than 0.085 ppm). Within 45 days of the
trigger date, Clark County will notify EPA that it is evaluating
potential contingency measures. Within 90 days of that notification,
Clark County will send a report to EPA and then will initiate a public
process to consider the recommended contingency measures, including
soliciting stakeholder involvement and holding public hearings. The
necessary emission control measures will be adopted and implemented no
later than 18 months after the information report is submitted to EPA.
Contingency measures contained in the maintenance plan are those
emission controls or other measures that Clark County, the Nevada State
Board of Agriculture, and/or the Nevada State Environmental Commission
choose to adopt and implement in response to the contingency trigger.
The contingency plan in the Ozone Maintenance Plan lists the following
potential contingency measures that will be considered for adoption and
implementation by the applicable State or County agency, but the plan
indicates that the list is not to be considered exclusive:
Reid vapor pressure reduction (i.e., in gasoline sold
during the summer ozone season; would need to be adopted and
implemented by the Nevada State Board of Agriculture);
Inspection/maintenance program changes and additions
(e.g., lowering the cutpoints for VOCs and NOX applicable to
pre-1996 vehicles; would need to be adopted and implemented by the
State Environmental Commission and/or the State Department of Motor
Vehicles);
Consumer and commercial products (Clark County would be
responsible for adoption and implementation);
Architectural surface coatings (Clark County would be
responsible for adoption and implementation);
Lawn and garden equipment use (Clark County would be
responsible for adoption and implementation); and
Establish/enhance trip reduction programs (Clark County
and the RTC would be responsible for adoption and implementation).
Upon our review of the plan, as summarized above, we find that the
contingency provisions of the Ozone Maintenance Plan clearly identify
specific contingency measures, contain tracking and triggering
mechanisms to determine when contingency measures are needed, contain a
description of the process of recommending and implementing contingency
measures, and contain specific timelines for action. Thus, we conclude
that the contingency provisions of the Clark County Ozone Maintenance
Plan are adequate to ensure prompt correction of a violation and
therefore comply with section 175A(d) of the Act.
6. Subsequent Maintenance Plan Revisions
CAA section 175A(b) provides that States shall submit a SIP
revision 8 years after redesignation providing for maintaining the
NAAQS for an additional 10 years. The Clark County Ozone Maintenance
Plan provides that Clark County commits to prepare and submit a revised
maintenance plan eight years after redesignation to attainment. See
page 6-13 of the Ozone Maintenance Plan.
7. Motor Vehicle Emissions Budgets
Transportation conformity is required by section 176(c) of the CAA.
Our transportation conformity rule (codified in 40 CFR part 93, subpart
A) requires that transportation plans, programs, and projects conform
to SIPs and establishes the criteria and procedures for
[[Page 67612]]
determining whether or not they do so. Conformity to the SIP means that
transportation activities will not produce new air quality violations,
worsen existing violations, or delay timely attainment of the national
ambient air quality standards.
Maintenance plan submittals must specify the maximum emissions of
transportation-related VOC and NOX emissions allowed in the
last year of the maintenance period, i.e., the motor vehicle emissions
budgets (MVEBs). (MVEBs may also be specified for additional years
during the maintenance period.) The MVEBs serve as a ceiling on
emissions that would result from an area's planned transportation
system. The MVEB concept is further explained in the preamble to the
November 24, 1993, transportation conformity rule (58 FR 62188). The
preamble describes how to establish MVEBs in the SIP and how to revise
the MVEBs if needed.
The submittal must also demonstrate that these emissions levels,
when considered with emissions from all other sources, are consistent
with maintenance of the NAAQS. In order for us to find these emissions
levels or ``budgets'' adequate and approvable, the submittal must meet
the conformity adequacy provisions of 40 CFR 93.118(e)(4) and (5). For
more information on the transportation conformity requirement and
applicable policies on MVEBs, please visit our transportation
conformity Web site at: https://www.epa.gov/otaq/stateresources/transconf/index.htm.
EPA's process for determining adequacy of a MVEB consists of three
basic steps: (1) Providing public notification of a SIP submission; (2)
providing the public the opportunity to comment on the MVEB during a
public comment period; and, (3) making a finding of adequacy. The
process for determining the adequacy of a submitted MVEB is codified at
40 CFR 93.118.
The Clark County Ozone Maintenance Plan submitted by NDEP for Clark
County, contains new VOC and NOX MVEBs for Clark County for
2008, 2015, and 2022. The availability of the SIP submission with MVEBs
was announced for public comment on EPA's Adequacy Web site on June 14,
2011, at: https://www.epa.gov/otaq/stateresources/tansconf/currsips.htm,
which provided a 30-day public comment period. The comment period for
this notification ended on July 14, 2011, and EPA received no comments
from the public. Note, however, that a second mechanism is also
provided for EPA review and public comment on MVEBs, as described in 40
CFR 93.118(f)(2). This mechanism provides for EPA's review of the
adequacy of an implementation plan MVEB simultaneously with its review
and approval and disapproval of the implementation plan itself. In this
action, EPA used the web notification discussed above to solicit public
comments on the adequacy of Clark County's MVEBs, but is taking comment
on the approvability of the submitted MVEBs through this proposed rule.
Clark County's ozone maintenance plan contains VOC and
NOX MVEBs for 2008, 2015 and 2022. Any and all comments on
the approvability of the MVEBs should be submitted during the comment
period stated in the DATES section of this document.
EPA proposes to approve 2008, 2015, and 2022 MVEBs in the Clark
County Ozone Maintenance Plan for transportation conformity purposes in
the final rulemaking on Clark County's ozone redesignation request. If
EPA approves the MVEBs in the final rulemaking action, the new MVEBs
must be used in future transportation conformity determinations for
Clark County. The new MVEBs, if approved in the final rulemaking, will
be effective on the date of EPA's final rulemaking in the Federal
Register. The existing 2008 VOC and NOX MVEBs from the Clark
County EPP, which EPA found adequate in 2009, will be replaced by these
budgets. The applicable VOC and NOX MVEBs for the Clark
County ozone nonattainment area are defined in table 4.
Table 4--Motor Vehicle Emissions Budgets in the Clark County Ozone
Maintenance Plan a
------------------------------------------------------------------------
VOC (tpd, average NOX (tpd, average
Budget year summer weekday) summer weekday)
------------------------------------------------------------------------
2008.............................. 65.08 68.46
2015.............................. 45.32 34.69
2022.............................. 36.71 23.15
------------------------------------------------------------------------
\a\ From Table 7-1 (page 7-1) of the Ozone Maintenance Plan.
The MVEBs are the on-road mobile source VOC and NOX
emissions for Clark County for 2008, 2015 and 2022. The MVEBs are
compatible with the 2008, 2015, and 2022 on-road mobile source VOC and
NOX emissions included in Clark County's 2008, 2015, and
2022 VOC and NOX emission inventories, as summarized above
in table 3. The derivation of the MVEBs is thoroughly discussed in
appendix A, chapter 7 of Clark County's Ozone Maintenance Plan. Updated
vehicle miles traveled (VMT) data from the Regional Transportation
Commission's TRANSCAD transportation demand model was adjusted with
Highway Performance Monitoring System (HPMS) data and then combined
with emission factors from MOBILE6 to estimate ozone precursor
emissions.
We note that the MVEBs in the Ozone Maintenance Plan for 2008
differ from those contained for that same year in the Clark County
Ozone EPP, but Clark County DAQ has explained the differences stem not
from a different approach but from changes with regard to the fuel
parameters and updated vehicle activity data for 2008. Specifically,
the MOBILE input files used for the Ozone Maintenance Plan were updated
to show the use of ethanol in summertime with a 1.0 psi waiver,
resulting in higher VOC emissions, and the VMT estimates for 2008 were
adjusted downwards to reflect the latest transportation data from RTC.
The net effect of these changes resulted in higher VOC emissions but
lower NOX emissions for 2008 relative to the corresponding
estimates in the Clark County Ozone EPP.
EPA is proposing to approve the MVEBs for 2008, 2015 and 2022 as
part of our approval of Clark County's Ozone Maintenance Plan. EPA has
determined that the MVEB emission targets are consistent with emission
control measures in the SIP and that Clark County can maintain
attainment of the 1997 8-hour ozone NAAQS. The details of EPA's
evaluation of the MVEBs for compliance with the budget adequacy
criteria of 40 CFR 93.118(e) are provided
[[Page 67613]]
in a separate memorandum \25\ included in the docket of this
rulemaking.
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\25\ See EPA memorandum dated October 15, 2012 titled,
``Adequacy Documentation for Motor Vehicle Emission Budgets in April
2011 Clark County Ozone Maintenance State Implementation Plan.''
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VI. Proposed Action and Request for Public Comment
Under CAA section 110(k)(3), and for the reasons set forth above,
EPA is proposing to approve NDEP's submittal dated April 11, 2011 of
Clark County's Ozone Redesignation Request and Maintenance Plan (March
2011) (``Clark County Ozone Maintenance Plan'') as a revision to the
Nevada state implementation plan (SIP). In connection with the Clark
County Ozone Maintenance Plan, EPA finds that the maintenance
demonstration showing how the area will continue to attain the 1997 8-
hour ozone NAAQS for 10 years beyond redesignation (i.e., through 2022)
and the contingency provisions describing the actions that Clark County
will take in the event of a future monitored violation meet all
applicable requirements for maintenance plans and related contingency
provisions in CAA section 175A. EPA is also proposing to approve the
motor vehicle emissions budgets (MVEBs) in the Clark County Ozone
Maintenance Plan (shown in table 4 of this document) because we find
they meet the applicable transportation conformity requirements under
40 CFR 93.118(e).
Second, under CAA section 107(d)(3)(D), we are proposing to approve
NDEP's request, which accompanied the submitted of the maintenance
plan, to redesignate the Clark County 8-hour ozone nonattainment area
to attainment for the 1997 8-hour ozone NAAQS. We are doing so based on
our conclusion that the area has met the five criteria for
redesignation under CAA section 107(d)(3)(E). Our conclusion in this
regard is in turn based on our proposed determination that the area has
attained the 1997 8-hour ozone NAAQS, that relevant portions of the
Nevada SIP are fully approved, that the improvement in air quality is
due to permanent and enforceable reductions in emissions, that Nevada
has met all requirements applicable to the Clark County 8-hour ozone
nonattainment area with respect to section 110 and part D of the CAA,
and based on our proposed approval as part of this action of the Clark
County Ozone Maintenance Plan.
EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. We will accept comments from the
public on this proposal for the next 30 days. We will consider these
comments before taking final action.
VII. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by State law. Redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve State choices, provided that they meet the criteria of the
Clean Air Act. Accordingly, these actions merely propose to approve a
State plan and redesignation request as meeting Federal requirements
and do not impose additional requirements beyond those by State law.
For these reasons, these proposed actions:
Are not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have Tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law. Nonetheless, EPA has
discussed the proposed action with the one Tribe, the Las Vegas Paiute
Tribe, located within the Clark County 8-hour ozone nonattainment area.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: November 2, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-27562 Filed 11-9-12; 8:45 am]
BILLING CODE 6560-50-P
