Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Nevada; Wintertime Oxygenated Gasoline Rule; Vehicle Inspection and Maintenance Program; Redesignation of Truckee Meadows to Attainment for the Carbon Monoxide Standard

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving certain submittals by the State of Nevada of revisions to the Nevada state implementation plan that are intended to provide for attainment and maintenance of the carbon monoxide national ambient air quality standard in the Truckee Meadows nonattainment area located within Washoe County, Nevada. These revisions include a local wintertime oxygenated gasoline rule, a “basic” vehicle inspection and maintenance program (including a performance standard evaluation), current statutory provisions and State rules governing mobile sources, a maintenance plan and related motor vehicle emissions budgets. EPA is also approving Nevada's request to redesignate the Truckee Meadows carbon monoxide nonattainment area to attainment. EPA is deferring action on the proposal to rescind a provision previously approved in the plan and related to inspection and maintenance of vehicles operated on Federal installations. EPA is taking these actions pursuant to those provisions of the Clean Air Act that obligate the Agency to take action on submittals of revisions to state implementation plans and requests for redesignation. This action makes certain State and local measures and commitments related to attainment and maintenance of the carbon monoxide standard in Truckee Meadows federally enforceable as part of the Nevada state implementation plan.

DATES:

Effective Date: This rule is effective on August 4, 2008.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2007-0561 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:

Eleanor Kaplan, EPA Region IX, (415) 947-4147, kaplan.eleanor@epa.gov.

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 January 7, 2008 (73 FR 1175), under section 110(k)(3) of the Clean Air Act, as amended in 1990 (CAA or “Act”), EPA proposed to approve certain submittals of revisions to the Nevada state implementation plan (SIP) by the Nevada Division of Environmental Protection (NDEP). These revisions are intended to provide for attainment and maintenance of the carbon monoxide (CO) national ambient air quality standards (NAAQS) in the Truckee Meadows nonattainment area located within Washoe County, Nevada. The specific SIP revision submittals that we proposed to approve are listed in the following table:

Specifically, we proposed to approve NDEP's SIP revision submittal dated November 4, 2005 of the wintertime oxygenated gasoline rule as amended on September 22, 2005 by the Washoe County District Board of Health (“District”) and codified as District Regulations Governing Air Quality Management section 040.095 (“District rule 040.095”). In our proposed rule, we found that District rule 040.095 fulfills the requirements of section 211(m) of the Act and applicable EPA regulations.

We also proposed to approve the SIP revision submittal dated June 3, 1994 of the State Implementation Plan for a Basic Program for the Inspection and Maintenance of Motor Vehicles for the Truckee Meadows Planning Area, Nevada (June 1994) (“Basic I/M SIP”). In connection with the basic vehicle inspection and maintenance (I/M) program in Truckee Meadows, we proposed to approve two subsequent SIP revision submittals: a “basic” I/M performance standard evaluation (“Basic I/M Performance Standard Evaluation”) submitted on November 2, 2006 and the Nevada Mobile Source SIP, Update of the Regulatory Element (May 11, 2007) (“Mobile Source SIP Update”) submitted on May 11, 2007. Among other items, NDEP's Mobile Source SIP Update contains current I/M-related statutory provisions, regulations, and updated exhaust gas analyzer specifications. Based on our review of the various elements of the program, we proposed to approve the basic I/M program for Truckee Meadows as meeting the requirements of CAA section 187(a)(4) and our implementing regulations, including the “basic” performance standard that applies to “moderate” CO nonattainment areas with design values less than 12.7 ppm (such as Truckee Meadows).

In connection with our proposed approval of the State's Basic I/M SIP, as supplemented and amended in submittals dated November 2, 2006 and May 11, 2007, we proposed no action on submitted rule Nevada Administrative Code (NAC) subsection 445B.595(2) (“NAC 445B.595(2)”), which relates to State I/M requirements for motor vehicles operated on Federal installations located within I/M areas, because of sovereign immunity concerns. Furthermore, we proposed, under CAA section 110(k)(6), to rescind our previous approval of NAC 445B.595(2) into the Nevada SIP in 2004 because we believed that we had approved it in error, also on the grounds of sovereign immunity. For the reasons given below in response to NDEP's comments on our proposal, we are separating our actions on NAC 445B.595(2) (i.e., both the proposed “no action” on the submitted rule (and current codification of) NAC 445B.595(2) and the proposed correction) from the rest of the actions proposed on January 7, 2008 and intend to re-propose action on NAC 445B.595(2) in a future Federal Register document.

In our January 7, 2008 proposed rule, we proposed to approve NDEP's SIP revision submittal (dated November 4, 2005) of the Redesignation Request and Maintenance Plan for the Truckee Meadows Carbon Monoxide Non-Attainment Area (September 2005) (“Truckee Meadows CO Maintenance Plan”), adopted by the District on September 22, 2005. In connection with our proposed approval of the Truckee Meadows CO Maintenance Plan, we proposed to approve certain commitments by the District, contingency provisions, and CO motor vehicle emissions budgets for years 2010 and 2016 for the purposes of transportation conformity. In so doing, we found that the Truckee Meadows CO Maintenance Plan meets the requirements for maintenance plans under section 175A of the Act.

Lastly, based on our evaluation of the various SIP requirements and submittals discussed above, we concluded that, upon our final approval of the SIP submittals evaluated in the proposed rule, the State will have met all section 110 and part D requirements that apply to the Truckee Meadows moderate CO nonattainment area and thereby satisfied the criteria for redesignation under CAA section 107(d)(3)(E) and proposed to approve the State's request (dated November 4, 2005) for redesignation of Truckee Meadows to attainment accordingly.

Please see the proposed rule for additional information on the various SIP revision submittals and the redesignation request and on our corresponding evaluation and rationale for proposed action.

II. Public Comments

EPA's January 7, 2008 proposed rule provided a 30-day public comment period. Comments were received from the Air Quality Management Division (AQMD) of the Washoe County District Health Department, the Nevada Division of Environmental Protection (NDEP), and the Western States Petroleum Association (WSPA). Responses to the comments from each entity are provided below.

Comment #1: By letter dated January 23, 2008, AQMD notes that, since adoption of the maintenance plan, EPA has reorganized the rules in 40 CFR part 58 and relocated the requirements for annual assessments of monitoring networks from 40 CFR 58.20(d) to 58.10, and that the maintenance plan refers in two places to the former rather than the latter.

Response #1: AQMD is correct. EPA has relocated the requirements for annual assessments of monitoring networks from 40 CFR 58.20 to 58.10. We encourage AQMD to include the updated regulatory reference in any subsequent maintenance plan for the area.

Comment #2: By letter dated January 30, 2008, NDEP requests a 30-day extension of the comment period to assess the implications of EPA's proposed rescission, under CAA section 110(k)(6) error correction authority, of a previously approved provision related to inspection and maintenance (I/M) of vehicles operated on Federal installations (i.e., NAC 445B.595(2)). By letter dated January 31, 2008, NDEP withdraws its request for an extension of the public comment period with respect to all aspects of EPA's January 7, 2008 proposal except for the proposed rescission action (related to I/M for vehicles operated on Federal installations) and requests instead that EPA act separately on the rescission aspect of the proposal. By e-mail dated February 1, 2008 and then by letter dated February 4, 2008, NDEP restates its amended request from January 31, 2008 but specifically conditions withdrawal of the extension request upon EPA's removal of the proposed CAA section 110(k)(6) action to rescind NAC 445B.595(2) from the rest of the January 7, 2008 proposed action.

Response #2: NDEP's initial letter dated January 30, 2008 led to EPA's reconsideration of the basis for EPA's proposed rescission of NAC 445B.595(2) and related “no action” proposal for the 2007 codification of the subject rule. On the basis of that reconsideration, EPA intends to re-propose action on NAC 445B.595(2) in a separate Federal Register document but to otherwise finalize the January 7, 2008 action as proposed.

Comment #3: By letter submitted on February 6, 2008, WSPA supports the redesignation of the Truckee Meadows nonattainment area as an attainment area for CO, but objects to the inclusion of the Washoe County wintertime oxygenated gasoline requirement in the Truckee Meadows CO maintenance plan. WSPA cites the results of a 2005 study commissioned by WSPA (and submitted with the comment letter), and more recent study results, as support for the proposition that elimination of the oxygenated fuel requirements in Washoe County would have little impact on ambient CO concentrations in 2006 and beyond and would not threaten compliance with the CO NAAQS particularly given the low ambient CO concentrations measured in Washoe County in recent years and declining trend in CO emissions. WSPA concludes that the oxygenated gasoline program has outlived its usefulness. In WSPA's view, continuation of the Washoe County wintertime oxygenated gasoline requirement places an unnecessary logistical burden on gasoline suppliers, which could lead to adverse supply impacts and possible market volatility. WSPA draws further support from the experiences in other areas in the country that have rescinded their oxygenated gasoline programs without triggering any CO NAAQS violations. Lastly, WSPA requests that EPA remove the Washoe County wintertime oxygenated gasoline requirement as a control measure in the Truckee Meadows CO maintenance plan for the years 2006 through 2016 but registers no objection to the requirement being included in the maintenance plan as a contingency measure.

Response #3: The Clean Air Act assigns to the states initial and primary responsibility for formulating a plan to achieve the NAAQS. It is up to the state to prepare state implementation plans which contain specific pollution control measures. EPA's responsibilities under the CAA are qualitatively different from those of the state agency. The EPA is charged with reviewing and approving or disapproving the enforceable implementation plans prepared by states and other political subdivisions identified in the statute. It is not EPA's role to disapprove the State choice of control strategies if that strategy will result in attainment or continued maintenance of the NAAQS, and meets all other applicable statutory requirements. See Union Electric Co. v. EPA, 427 U.S. 246 (1976); Train v. NRDC, 421 U.S. 60 (1975). EPA's role in reviewing SIP submissions is to approve state choices, provided that they meet the criteria of the Clean Air Act. Federal inquiry into the reasonableness of state action is not allowed under the Act (see Union Electric Co. v. EPA, 427 U.S. 246, 255-266 (1976); CAA section 110(a)(2)). Under section 116 of the CAA, with certain exceptions not relevant here, a State retains the right to adopt and enforce any requirement respecting control or abatement of air pollution, including more stringent emissions standards and limitations.

For the reasons set forth in the proposed rule (see 73 FR 1175, at 1178-1179), we find that the District's wintertime gasoline oxygen content requirements (i.e., District Rule 040.095) meet applicable CAA criteria, including public notice and hearing prior to adoption and submittal, as well as the substantive criteria of section 211(m) and meet applicable EPA regulations. WSPA does not object to our finding that the District's requirements meet applicable CAA criteria and applicable EPA regulations, but rather WSPA contends that the rule is no longer needed for maintenance of the CO NAAQS in Truckee Meadows. However, for the reasons set forth above, we do not have the authority to disapprove the District's choice (endorsed by the applicable State agency, NDEP) to include the wintertime oxygenated gasoline requirement as part of their CO maintenance strategy on such grounds. If NDEP and the District choose to revise the SIP to suspend implementation of the wintertime oxygenated gasoline requirement and to adopt the requirement as a contingency measure, they may do so with a demonstration that the area would continue to maintain the CO NAAQS without the benefit of the related emissions reductions, subject to compliance with CAA procedural requirements and subject to EPA approval.

III. EPA Action

As authorized under section 110(k) of the Act, and for the reasons summarized in section I of this document and, in greater detail, in our proposed rule, EPA is approving certain submittals by NDEP of revisions to the Nevada SIP that are required to provide for attainment of the CO NAAQS in the Truckee Meadows “moderate” CO nonattainment area and is approving a maintenance plan under section 175A of the Act. EPA is also approving, under section 107(d)(3) of the Act, NDEP's request to redesignate Truckee Meadows to attainment for the CO NAAQS. Our specific approvals are as follows:

First, we are approving the local oxygenated gasoline regulation, District Rule 040.095, as amended on September 22, 2005) as fulfilling the requirements of section 211(m) of the CAA.

Second, we are approving the State of Nevada's SIP revisions containing the “basic” vehicle I/M program for Truckee Meadows because we find that the program meets all applicable requirements under CAA section 187(a)(4) and EPA regulations. Specifically, we are approving three I/M-related SIP revisions submitted by NDEP:

(i) State Implementation Plan for a Basic Program for the Inspection and Maintenance of Motor Vehicles for the Truckee Meadows Planning Area, Nevada (June 1994), submitted on June 3, 1994, excluding the following outdated or superseded elements included in the June 3, 1994 SIP revision: The statutory provisions and rules, the exhaust gas analyzer specifications, MOBILE5.0a emissions modeling, and a contingency measure adopted by the Washoe County District Board of Health;

(ii) Basic I/M Performance Standard Evaluation for motor vehicles in the Truckee Meadows planning area, submitted on November 2, 2006; and

(iii) Current Nevada mobile source statutory and regulatory provisions and rules, including those related to I/M, and updated exhaust gas analyzer (NV2000) specifications, submitted by NDEP on May 11, 2007. The current Nevada mobile source statutory provisions and regulations, including those related to I/M, that we are approving are as follows:

• Nevada Revised Statutes (2005), chapter 365: section 365.060; chapter 366, section 366.060; chapter 445B, sections 445B.210, 445B.700-845 (excluding NRS 445B.776, 445B.777, and 445B.778); chapter 481, sections 481.019-481.087; chapter 482, sections 482.029, 482.155-482.290, 482.385, 482.461, and 482.565; and chapter 484, sections 484.101, 484.644 and 484.6441;
• Nevada Administrative Code, chapter 445B (January 2007 revision by the Legislative Counsel Bureau), sections 445B.400 to 445B.735, excluding subsection (2) of section 445B.595.

Third, we are approving the Redesignation Request and Maintenance Plan for the Truckee Meadows Carbon Monoxide Non-Attainment Area (September 2005) (“Truckee Meadows CO Maintenance Plan”), adopted by the Washoe County District Board of Health on September 22, 2005, and submitted by NDEP to EPA on November 4, 2005, as meeting the requirements of CAA section 175A.

In connection with our approval of the Truckee Meadows CO Maintenance Plan, we find the following plan elements to be acceptable:

• Baseline (2002) emissions inventory and future year (2010 and 2016) inventory projections;
• Commitment to continue operating an appropriate ambient CO monitoring network;
• Commitment to verify continued attainment through ambient monitoring and the preparation and submittal of periodic inventory updates and surveys of residential woodburning;
• Contingency provisions that establish a two-tier approach with specific triggering events and regulatory responses: The first involving a lowering of the stage 1 (alert) episode level (tier 1) by the next CO season and the second involving a recommendation and timetable for action by the Washoe County District Board of Health or the State Environmental Commission to tighten certain requirements, potentially including a higher wintertime gasoline oxygen content or higher waiver amounts in the State's vehicle I/M program, to promptly correct any violation of the CO NAAQS after redesignation;
• Commitment to prepare and submit a subsequent CO maintenance plan for the Truckee Meadows area 8 years after redesignation; and
• CO motor vehicle emissions budgets (in terms of pounds per typical CO season day) of 330,678 pounds per typical CO season day in year 2010 and 321,319 pounds per typical CO season day in year 2016.

Fourth, under section 107(d)(3), we are approving NDEP's request (dated November 4, 2005) to redesignate the Truckee Meadows CO nonattainment area to attainment. In so doing, we find that:

• The Truckee Meadows nonattainment area has attained the CO NAAQS;
• EPA has fully approved the applicable SIP for this area under section 110(k) of the CAA;
• The improvement in ambient CO conditions in Truckee Meadows is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
• The State has met all requirements applicable to Truckee Meadows under section 110 and part D (of title I) of the CAA; and

• As described above, we are approving the Truckee Meadows CO Maintenance Plan as meeting the requirements of CAA section 175A.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affects small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves state law implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 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 September 2, 2008. 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
• National parks
• Wilderness areas

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)(68), (c)(69), (c)(70) and (c)(71) to read as follows:

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. In § 81.329, the table entitled “Nevada—Carbon Monoxide” is amended by revising the entry for the Reno area to read as follows: