2010-24135. Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Nevada; Redesignation of Las Vegas Valley to Attainment for the Carbon Monoxide Standard

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve the State of Nevada's request to redesignate to attainment the Las Vegas Valley nonattainment area for the carbon monoxide national ambient air quality standard. EPA is also taking final action to approve the carbon monoxide maintenance plan and motor vehicle emissions budgets for the area, as well as certain additional revisions to the Nevada state implementation plan that relate to Las Vegas Valley. These revisions include the suspension of a local wintertime cleaner burning gasoline rule, and the relaxation of a State rule governing wintertime gasoline in Clark County. EPA's proposed approval of the redesignation request and maintenance plan had been made contingent upon receipt of a supplemental submittal from the State of Nevada containing a commitment to seek reinstatement of the existing vapor pressure limit in the State wintertime gasoline rule, if necessary, to implement the related contingency measure in the maintenance plan. Nevada has now submitted, and EPA is today approving, the necessary commitment as a revision to the Nevada state implementation plan.

DATES:

Effective Date: This rule is effective on September 27, 2010.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2010-0585 for this action. The index to the docket is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Karina O'Connor, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms “we,” “us,” and “our” refer to EPA. This supplementary information is organized as follows:

Table of Contents

I. Proposed Action

II. Public Comments

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On July 29, 2010 (75 FR 44734), we proposed to approve the Nevada Division of Environmental Protection's (NDEP's) request to redesignate to attainment the Las Vegas Valley ^[1] carbon monoxide (CO) nonattainment area located within Clark County, Nevada, and related revisions to the Nevada state implementation plan (SIP). The specific SIP revision submittals that we proposed to approve are listed in the following table:

Plan or rule	Adoption date(s)	State of Nevada submittal date(s)
Carbon Monoxide Redesignation Request and Maintenance Plan, Las Vegas Valley Nonattainment Area, Clark County, Nevada (September 2008)	Adopted by the Clark County Board of Commissioners on September 2, 2008	Submitted by NDEP by letter dated September 18, 2008.
Clark County Air Quality Regulations, Section 54 (“Cleaner Burning Gasoline (CBG): Wintertime Program”) (Suspended)	Adopted by the Clark County Board of Commissioners on September 15, 2009, effective September 29, 2009	Submitted by NDEP by letter dated March 26, 2010.
Nevada Administrative Code (NAC) section 590.065 (amended)	Adopted by the Nevada Board of Agriculture on December 9, 2009, effective January 28, 2010	Submitted by NDEP by letter dated March 26, 2010.

We proposed to approve NDEP's redesignation request because we found that the area meets all of the criteria for redesignation under section 107(d)(3)(E)(i) through (v) of the Clean Air Act (CAA or “Act”), as discussed in the following paragraphs.

• Based on our review of the monitoring network and complete, quality-assured data for 2008-2009 up to the present time, we proposed to find that Las Vegas Valley has attained, and continues to attain, the CO standard and thus meets the criterion for redesignation set forth in section 107(d)(3)(E)(i). See the July 29, 2010 proposed rule at pages 44738-44739.
• Based on our review of previous rulemakings approving various rules and plans affecting the Las Vegas Valley CO nonattainment area, we proposed to find that, with the sole exception of the CO milestone requirement, the area has a fully approved SIP under CAA section 110(k) that meets all of the applicable requirements under CAA section 110 and part D for the purposes of redesignation and thereby meets the criteria for redesignation under CAA section 107(d)(3)(E)(ii) and (v). See the July 29, 2010 proposed rule at pages 44739-44743. With respect to the CO milestone requirement under CAA section 187(d), we proposed to adapt to CO nonattainment areas the provisions of our Clean Data Policy, which was initially established for ozone (see discussion at 75 FR 44742). Under the Clean Data Policy, certain CAA Part D requirements—including, among others, the CO Milestone requirement—no longer apply because the area has already attained the NAAQS.
• We proposed to find that the improvement in ambient CO concentrations in Las Vegas Valley 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 and that the area thereby meets the criterion for redesignation under CAA section 107(d)(3)(E)(iii). See the July 29, 2010 proposed rule at pages 44743-44744. The specific measures that have improved ambient CO conditions in Las Vegas Valley include the Federal Motor Vehicle Control Program; the State's vehicle I/M program; State regulations establishing a low Reid vapor pressure (RVP) specification for wintertime gasoline in Clark County [Nevada Administrative Code (NAC) section 590.065 (herein referred to as the “Low RVP Rule”)]; Clark County's wintertime gasoline requirements, including Clark County Air Quality Regulations (AQR) Section 53 (“Oxygenated Gasoline Program”), and Section 54 (“Cleaner Burning Gasoline: Wintertime Program”) (herein, referred to as the “CBG Rule”); and to a lesser extent, the State's Alternative Fuels for Government Fleets Program and the Regional Transportation Commission of Southern Nevada's (RTC's) voluntary transportation control measure/transportation demand management (TCM/TDM) program. All of these measures are Federal measures or are State and local measures that have been approved into the SIP and are thus federally enforceable.
• We proposed to approve NDEP's maintenance plan submittal dated September 18, 2008 titled Carbon Monoxide Redesignation Request and Maintenance Plan, Las Vegas Valley Nonattainment Area, Clark County, Nevada (September 2008) (“Las Vegas Valley CO Maintenance Plan” or “Maintenance Plan”) ^[2] as a revision to the Nevada SIP because we found the plan to satisfy the applicable CAA requirements, including CAA section 175A. See the July 29, 2010 proposed rule at pages 44744-44749. On the basis of our proposed approval of the Maintenance Plan, we proposed to find that the area meets the criterion for redesignation under CAA section 107(d)(3)(E)(iv). In connection with the Maintenance Plan, we proposed to approve the motor vehicle emissions budgets (MVEBs) for years 2008, 2010, and 2020 for the purposes of transportation conformity based on our conclusion that they meet the criteria for such budgets in 40 CFR 93.118(e).

In addition to proposing action on the State's 2008 redesignation request and submittal of the Las Vegas Valley Maintenance Plan, in our July 29, 2010 proposed rule, we also proposed action on a SIP revision from NDEP submitted on March 26, 2010 of changes related to rules establishing wintertime gasoline requirements in Las Vegas Valley. See the July 29, 2010 proposed rule at pages 44749-44752. These are the County's CBG Rule, which establishes certain wintertime gasoline specifications related to sulfur and aromatic hydrocarbons (“aromatics”), and the State's Low RVP Rule, which establishes a low Reid vapor pressure (RVP) specification for gasoline sold during the late fall and winter months in Clark County. In our July 29, 2010 proposed rule, we proposed to approve the suspension of Clark County's CBG Rule and the relaxation of the State's Low RVP Rule because we concluded, in accordance with CAA section 110(l), that doing so would not interfere with attainment or maintenance of any of the NAAQS or any applicable requirement of the Clean Air Act.^[3]

The Las Vegas Valley CO Maintenance Plan includes reinstatement of the CBG Rule and the Low RVP Rule as contingency measures, as required under CAA section 175A(d).^[4] However, while Clark County, through adoption of the maintenance plan, has committed to reinstatement of the CBG Rule in accordance with the contingency provisions of the plan, the Nevada State Department of Agriculture, which is responsible for the Low RVP Rule, had not, as of the date of our July 29, 2010 proposed rule, made a similar commitment with respect to the Low RVP Rule. Thus, we made our approval of the Maintenance Plan and redesignation request contingent upon the submittal, and EPA approval, of such a commitment as a revision to the Nevada SIP.

In footnote 4 of our July 29, 2010 proposed rule, we noted that the Nevada Department of Agriculture had initiated a 30-day comment period to solicit comment (or request a public hearing) on the draft commitment regarding implementation of the contingency measure in the Maintenance Plan related to reinstatement of the Low RVP Rule and that, based on our review of the draft commitment, we expected to approve it if the commitment ultimately submitted to us was not significantly modified relative to the draft version.

On August 30, 2010, NDEP submitted the Nevada Department of Agriculture's commitment (to seek reinstatement of the Low RVP Rule) as a revision to the Nevada SIP. NDEP's August 30, 2010 SIP submittal also contains documentation of the public process used by the Nevada Department of Agriculture in adopting the commitment. We have reviewed the August 30, 2010 submittal and find that the State has met the procedural requirements for adopting SIP revisions, and as anticipated in our July 29, 2010 proposed rule, the commitment itself mirrors the public draft version, which we had found acceptable. Thus, we are taking final action today to approve the Department's commitment as a revision to the Nevada SIP.

Please see our July 29, 2010 proposed rule for a detailed discussion of the regulatory background for today's action and for a more complete discussion of the rationale for our actions in connection with the Las Vegas Valley CO Maintenance Plan and redesignation request.

II. Public Comments

EPA's July 29, 2010 proposed rule provided a 30-day public comment period, which closed on August 30, 2010. We received only one comment during the comment period. The comment notes a typographical error in the pre-publication version of the proposed rule. Specifically, the date on which we posted the announcement of the Maintenance Plan and related motor vehicle emissions budgets for public comment on EPA's adequacy Web page was September 30, 2008, not September 30, 3008, as shown in the pre-publication version. This typographical error was fixed prior to publication and did not appear in the proposed rule as published in the Federal Register on July 29, 2010.

III. EPA Action

For the reasons given in our proposed rule and summarized above, EPA is taking final action under CAA section 110(k)(3) to approve NDEP's submittal dated September 18, 2008 of the Las Vegas Valley CO Maintenance Plan as a revision to the Nevada SIP because we find that it satisfies the requirements of section 175A of the CAA to include a reasonably accurate and comprehensive attainment inventory, an adequate maintenance demonstration, contingency provisions, and commitments to continue operation of an acceptable ambient monitoring network to verify continued attainment. In connection with the contingency provisions of the Maintenance Plan, EPA is approving NDEP's SIP revision dated August 30, 2010 containing a commitment from the Nevada Department of Agriculture to seek reinstatement by the Nevada Board of Agriculture of the Low RVP Rule if called upon to do so through the contingency provisions of the Maintenance Plan to address future CO violations in Las Vegas Valley.

Final approval of the Las Vegas Valley CO Maintenance Plan makes federally enforceable the commitments, such as the commitment to continue operation of an adequate CO monitoring network, and the contingency provisions, contained therein. In addition, we are approving for transportation conformity purposes the motor vehicle emissions budgets (MVEBs) in the Las Vegas Valley CO Maintenance Plan for years 2008, 2010, and 2020 because we find they meet the criteria found in 40 CFR 93.118(e). The budgets for 2008, 2010 and 2020 are 658 tons per day, 686 tons per day, and 704 tons per day, respectively (based on typical weekday during the winter). As a result, RTC (which is the area's Metropolitan Planning Organization) and the U.S. Department of Transportation must use the CO MVEBs from the Maintenance Plan for future transportation conformity determinations.^[5]

Based in part on our approval of the Las Vegas Valley CO Maintenance Plan, we are also approving NDEP's September 18, 2008 request to redesignate Las Vegas Valley to attainment for the CO NAAQS. In doing so, we find that the area has met all of the criteria for redesignation under CAA section 107(d)(3)(E), i.e., the area has attained the CO standard; EPA has fully approved the Las Vegas Valley SIP for all requirements under section 110 and part D of the CAA that are applicable for purposes of redesignation (or that no longer apply because the area has attained the CO standard); the improvement in CO conditions in Las Vegas Valley is due to permanent and enforceable reductions; and as described above, the State has submitted a maintenance plan for the area that meets the requirements of section 175A.

We are also approving, under section 110(k)(3) of the CAA, NDEP's March 26, 2010 submittal of the suspension of the County's CBG Rule and amendments to the State's Low RVP Rule (in NAC section 590.065), including the relaxation in the State's wintertime gasoline RVP requirement for Clark County from 9.0 to 13.5 psi, because we find that doing so would not interfere with attainment or maintenance of any of the NAAQS or any applicable requirement of the Clean Air Act for the purposes of CAA section 110(l). We are not including subsection (7) of amended NAC section 590.065 in our approval because the limits in subsection (7) of the amended rule are unrelated to the vapor pressure requirement and associated CO emissions reductions, and are severable from the rest of the rule.^[6] Lastly, because we have synchronized our final actions on the Maintenance Plan and the (suspended) CBG Rule (and thereby avoided a gap in time when the CBG Rule would not be either an active or contingency measure in the SIP), we are not removing CBG from the boutique fuels list.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. In addition, a delayed effective date is unnecessary because in today's action we are approving changes to certain fuel rules that relieve gasoline suppliers from the requirement to meet certain specifications for wintertime gasoline in Clark County. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which after publication it provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the State of Nevada, Clark County, and gasoline suppliers of various requirements for the Las Vegas Valley area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

IV. 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. A 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 approve a State plan and redesignation request as meeting Federal requirements and do not impose additional requirements beyond those imposed by State law. For these reasons, these actions:

• Are not “significant regulatory actions” 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 Clean Air Act; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this 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.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 26, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

40 CFR Part 81

• Environmental protection
• Air pollution control
• Carbon monoxide
• National parks
• Wilderness areas

Dated: September 16, 2010.

Jared Blumenfeld,

Regional Administrator, Region IX.

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart DD—Nevada

2. Section 52.1470 is amended by adding paragraphs (c)(73), (c)(74), and (c)(75) to read as follows:

§ 52.1470

Identification of plan.

* * * * *

(c) * * *

(73) The following plan revision was submitted on September 18, 2008, by the Governor's designee.

(i) [Reserved]

(ii) Additional material.

(A) Resolution of the Clark County Board of Commissioners Adopting the Clark County Carbon Monoxide Redesignation Request and Maintenance Plan, adopted by the Clark County Board of Commissioners on September 2, 2008.

(B) Carbon Monoxide Redesignation Request and Maintenance Plan, Las Vegas Valley Nonattainment Area, Clark County, Nevada (September 2008), adopted by the Clark County Board of Commissioners on September 2, 2008 (excluding the appendices).

(74) The following plan revision was submitted on March 26, 2010 by the Governor's designee.

(i) Incorporation by reference.

(A) Clark County Department of Air Quality and Environmental Management.

(1) Clark County Board of County Commissioners, Ordinance No. 3809, “An Ordinance to Suspend the Applicability and Enforceability of All Provisions of Clark County Air Quality Regulation Section 54, the Cleaner Burning Gasoline Wintertime Program; and Provide for Other Matters Properly Relating Thereto,” adopted September 15, 2009, effective (for state purposes) on September 29, 2009.

(B) Nevada Department of Agriculture.

(1) Nevada Board of Agriculture, Adopted Regulation of the State Board of Agriculture LCB File No. R111-08, including an amended version of Nevada Administrative Code (NAC) section 590.065, effective (for state purposes) on January 28, 2010, (excluding newly designated subsection (7) of NAC section 590.065).

(75) The following plan revision was submitted on August 30, 2010, by the Governor's designee.

(i) [Reserved]

(ii) Additional material.

(A) Letter from Anthony Lesperance, Director, Nevada Department of Nevada, to Lewis Wallenmeyer, Director, Clark County Department of Air Quality and Environmental Management, dated June 22, 2010, setting forth the Nevada Department of Agriculture's commitment to seek reinstatement of the Low RVP wintertime gasoline requirement in Clark County if necessary under the Las Vegas Valley Carbon Monoxide Maintenance Plan to address future carbon monoxide violations.

* * * * *

PART 81—[AMENDED]

3. The authority citation for part 81 continues to read as follows:

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

Subpart C—[AMENDED]

4. Section 81.329 is amended in the table for “Nevada—Carbon Monoxide” by revising the entry for “Las Vegas Area” to read as follows:

§ 81.329

Nevada.

* * * * *

Nevada—Carbon Monoxide

Designated area	Designation		Classification
	Date 1	Type	Date 1	Type
*         *         *         *         *         *         *
Las Vegas Area:	September 27, 2010	Attainment
Clark County (part)
Las Vegas Valley
Hydrographic Area 212
*         *         *         *         *         *         *
1 This date is November 15, 1990, unless otherwise noted.

Footnotes

1.  Specifically, the Las Vegas Valley CO nonattainment area is defined by reference to State hydrographic area #212. See 40 CFR 81.329. The Las Vegas Valley encompasses roughly 1,500 square miles within Clark County and includes the cities of Las Vegas, North Las Vegas, and Henderson. Roughly two million people reside in Clark County, mostly within Las Vegas Valley. NDEP is the state agency under state law that is responsible for SIP matters for the State of Nevada. Within Clark County, the Clark County Board of Commissioners, acting through the Department of Air Quality and Environmental Management (DAQEM), is empowered under state law to develop air quality plans and to regulate stationary sources within the county with the exception of certain types of power plants, which lie exclusively within the jurisdiction of NDEP.

2.  The Las Vegas Valley CO Maintenance Plan consists of the main body of the plan and three appendices: Appendix A (“Wintertime Gasoline Fuel Specification Study”), Appendix B (Technical Support Document, Carbon Monoxide Modeling for the Clark County Maintenance Plan”), Appendix C (“Documentation of the Public Review Process”).

3.  We did not include subsection (7) of amended NAC 590.065 in our proposed approval because the limits in subsection (7) of the amended rule are unrelated to the vapor pressure requirement and associated CO emissions reductions, and are severable from the rest of the rule.

4.  In relevant part, CAA section 175A(d) states: “Each plan revision submitted under this section shall contain contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Such provisions shall 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 state implementation plan for the area before redesignation of the area as an attainment area.”

5.  The current approved CO motor vehicle emissions budgets from the 2005 CO (Attainment) Plan are: 690, 768, and 817 tons per winter weekday for 2010, 2015, and 2020, respectively. See 71 FR 44587 (August 7, 2006). The Maintenance Plan does not explicitly indicate that the budgets set forth therein are intended to replace the budgets from the 2005 CO Plan. With our approval today of the MVEBs in the Maintenance Plan, two sets of CO budgets now apply for the area (i.e., those from the 2005 CO Plan, and those from the Maintenance Plan) because they relate to different CAA requirements for the same years. As a practical matter, however, the Maintenance Plan budgets, being lower than the 2005 CO Plan budgets, represent the constraining budgets for determining conformity.

6.  For the purposes of the Nevada SIP, our final approval of amended NAC section 590.065 will supersede the version of NAC section 590.065 approved by EPA on September 21, 2004 (69 FR 56351, at 56355). See 40 CFR 52.1470(c)(49)(i)(A)(2).