Approval and Promulgation of Implementation Plans; Nevada; Determination of Attainment for the Clark County 8-Hour Ozone Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is determining that the Clark County (Nevada) 8-hour ozone nonattainment area has attained the 1997 8-hour ozone national ambient air quality standards (NAAQS). This determination is based upon complete, quality-assured, and certified ambient air monitoring data that show the area has monitored attainment of the 1997 8-hour ozone NAAQS for the 2007 to 2009 monitoring period. Preliminary air quality monitoring data available for 2010 are consistent with continued attainment. Based on this determination, 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 for the Clark County ozone nonattainment area shall be suspended for as long as the nonattainment area continues to meet the 1997 8-hour ozone NAAQS. This action is being taken under the Clean Air Act (CAA).

DATES:

This action is effective on May 31, 2011 without further notice, unless EPA receives adverse comment by April 28, 2011. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R09-OAR-2011-0169 by one of the following methods:

1. http://www.regulations.gov : Follow the on-line instructions for submitting comments.

2. E-mail: kelly.johnj@epa.gov.

3. Fax: (415) 947-3579.

4. Mail: “EPA-R09-OAR-2011-0169,” Lisa Hanf, Chief, Air Planning Office, Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street (Air-2), San Francisco, California 94105.

5. Hand Delivery or Courier: At the previously-listed EPA Region IX address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-2011-0169. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or by e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. 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. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/dockets/.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, for example, CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Planning Office, Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street (Air-2), San Francisco, California 94105. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection during normal business hours.

FOR FURTHER INFORMATION CONTACT:

John Kelly, (415) 947-4151, or by e-mail at kelly.johnj@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table of Contents

I. What determination is EPA making?

II. What is the background for this action?

A. The Clark County Ozone Nonattainment Area

B. Determination of Attainment

C. Ambient Air Quality Monitoring Data

III. What is the effect of this action?

A. Determination of Attainment

B. Subpart 1 Designation

IV. What is EPA's analysis of the relevant air quality data?

V. EPA's Final Action

VI. Statutory and Executive Order Reviews

I. What determination is EPA making?

EPA is determining that the Clark County (Nevada) 8-hour ozone nonattainment area (“Clark County ozone nonattainment area”) has attained the 1997 8-hour ozone NAAQS. The Clark County ozone nonattainment area is composed of a portion of Clark County in Nevada. EPA's determination is based upon complete, quality-assured, and certified ambient air quality monitoring data for the years 2007 to 2009 showing that the Clark County ozone nonattainment area has monitored attainment of the 1997 8-hour ozone NAAQS. Preliminary air quality monitoring data available for 2010 are consistent with continued attainment.

On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 parts per million (ppm). On January 6, 2010, EPA again addressed this 2008 revised standard and proposed to set the primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm, rather than at 0.075 ppm. EPA is working to complete reconsideration of the standard and thereafter will proceed with attainment/nonattainment area designations. This rulemaking relates only to a determination of attainment for the 1997 8-hour ozone standard and is not affected by the ongoing process of reconsidering the revised 2008 standard. This action addresses only the 1997 8-hour ozone standard of 0.08 ppm, and does not address any subsequently revised 8-hour ozone standard.

II. What is the background for this action?

A. The Clark County Ozone Nonattainment Area

In 1997, EPA revised the health-based NAAQS for ozone, setting it at 0.08 ppm averaged over an 8-hour timeframe. EPA set the 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 8-hour standard would be more protective of human health, especially children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.

On April 30, 2004 (69 FR 23858), EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 8-hour ozone standard. In that action we designated Clark County as nonattainment and provided that this designation would become effective on June 15, 2004. Following the April 2004 final rule, the State of Nevada submitted additional information requesting that the boundaries of the area to be designated nonattainment be reconsidered. In response, EPA granted a deferral of the effective date for Clark County to consider this information. See 69 FR 34076 (June 18, 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. See 69 FR 55956 (September 17, 2004) and 40 CFR 81.329. In 2005, we published a final rule that we would treat the effective date of the partial-county nonattainment area designation the same as the designations for the rest of the country, i.e., June 15, 2004. See 70 FR 71612 (November 29, 2005) and 40 CFR 51.917.

B. Determination of Attainment

Under the provisions of EPA's ozone implementation rule for the 1997 ozone NAAQS (see 40 CFR 51.918), if EPA issues a determination that an area is attaining the standard (through a rulemaking that includes public notice and comment), it will suspend the area's obligations to submit an attainment demonstration, RACM, RFP, contingency measures and other planning requirements related to attainment for as long as the area continues to attain. The determination of attainment is not equivalent to a redesignation. The State must still meet the statutory requirements for redesignation in order to be redesignated to attainment.

C. Ambient Air Quality Monitoring Data

Complete, quality-assured, and certified 8-hour ozone air quality monitoring data for 2007 through 2009, as well as preliminary data available to date for 2010, show that the Clark County ozone nonattainment area has attained, and continues to attain, the 1997 8-hour ozone NAAQS.

III. What is the effect of this action?

As noted, under 40 CFR section 51.918, the effect of today's determination of attainment is to suspend the obligation to submit certain planning requirements described above; however, it does not constitute a redesignation to attainment under section 107(d)(3) of the CAA. The designation status of the Clark County ozone nonattainment area remains nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines that the area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan.

A. Determination of Attainment

EPA is determining that the Clark County ozone nonattainment area is attaining the 1997 8-hour ozone NAAQS. In accordance with 40 CFR 51.918, based on this determination, the obligation under the CAA for the State of Nevada to submit an attainment demonstration and RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS for the Clark County ozone nonattainment area is suspended for so long as the area continues to attain the 1997 8-hour ozone NAAQS. Although these requirements are suspended, EPA is not precluded from acting upon these elements, if Nevada submits them for EPA review and approval.

The effect of this determination is to:

(1) Suspend the requirements to submit an attainment demonstration, RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS;

(2) Continue until such time, if any, that EPA (i) redesignates the area to attainment at which time those requirements no longer apply, or (ii) subsequently determines that the area has violated the 1997 8-hour ozone NAAQS;

(3) Be separate from, and not influence or otherwise affect, any future designation determination or requirements for the area based on any new or revised ozone NAAQS; and

(4) Remain in effect regardless of whether EPA designates this area as a nonattainment area for purposes of any new or revised ozone NAAQS.

If EPA subsequently determines, after notice-and-comment rulemaking, that the Clark County ozone nonattainment area has violated the 1997 8-hour ozone NAAQS, the basis for the suspension of the specific requirements, set forth at 40 CFR 51.918, would no longer exist, and the Clark County ozone nonattainment area would thereafter have to address applicable requirements.

B. Subpart 1 Designation

Under the implementation rule for the 1997 8-hour ozone standard, EPA designated certain areas under title I, part D, subpart 1 of the CAA (subpart 1) if they had a 1-hour design value below 0.121 ppm. As discussed above, in 2004, EPA designated a portion of Clark County nonattainment under subpart 1 for the 1997 8-hour ozone standard. In June 2007, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit Court) vacated the portion of the 1997 ozone implementation rule that allowed areas to be designated under subpart 1. On January 16, 2009 (74 FR 2936), EPA published a proposed rule to address, among other issues, the DC Circuit Court vacatur of the classification system that EPA used to designate a subset of initial 1997 8-hour ozone nonattainment areas under subpart 1. In that rulemaking, EPA proposed that all areas designated nonattainment for the 1997 8-hour ozone NAAQS under subpart 1 would be classified as subpart 2 areas (hereafter referred to as the “Subpart 1/Subpart 2 1997 8-Hour Ozone Rulemaking”). The Clark County ozone nonattainment area is among those areas that would be classified under subpart 2 if EPA's proposal is finalized. EPA has not yet completed its final rulemaking action for the Subpart 1/Subpart 2 1997 8-Hour Ozone Rulemaking. When the Subpart 1/Subpart 2 1997 8-Hour Ozone Rulemaking is finalized, and if the Clark County ozone nonattainment area continues in attainment for the 1997 8-hour ozone NAAQS, EPA will address in a future rulemaking the consequences of a determination of attainment for any requirements to which the Clark County ozone nonattainment area becomes subject as a result of its reclassification. If, after the Clark County ozone nonattainment area is classified under subpart 2, EPA determines in a future rulemaking that the Clark County ozone nonattainment area continues to be in attainment, then the obligation to submit the applicable attainment planning-related requirements for its new classification would be suspended in accordance with 40 CFR 51.918.

IV. What is EPA's analysis of the relevant air quality data?

A determination of whether an area's air quality meets the ozone NAAQS is generally based upon the most recent three years of complete, quality-assured data gathered at established National Air Monitoring Stations (“NAMS”) or 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 the EPA AQS database. Heads of monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, EPA relies primarily on data in its AQS database 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 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 greater than 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 & Environmental Management (DAQEM) is responsible for monitoring ambient air quality within Clark County. DAQEM 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 reviews these annual plans for compliance with the applicable reporting requirements in 40 CFR 58.10. With respect to ozone, we have found DAQEM's annual network plans to meet the applicable requirements under 40 CFR part 58. See EPA letters to DAQEM concerning DAQEM's annual network plan reports for years 2007, 2008, 2009 and 2010. Furthermore, we concluded in our Technical System Audit Report (February 2010) that Clark County DAQEM's ambient air monitoring network currently meets or exceeds the requirements for the minimum number of monitoring sites designated as State and local air monitoring stations (SLAMS) for all of the criteria pollutants, and that all of the monitoring sites are properly located with respect to monitoring objectives, spatial scales and other site criteria. Also, DAQEM annually certifies that the data it submits to AQS are complete and quality-assured. See, e.g., letter dated April 14, 2010, from Lewis Wallenmeyer, Director, DAQEM, to Jared Blumenfeld, EPA Region IX Regional Administrator.

Clark County DAQEM operated 12 ozone SLAMS monitoring sites over the 2007-2010 period 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), 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 12 sites monitor ozone concentrations on a continuous basis using ultraviolet absorption monitors. The spatial scale and monitoring objective of most of DAQEM'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 DAQEM's Annual Network Plan Report (June 2010).

Consistent with the requirements contained in 40 CFR part 50, EPA has reviewed the ozone ambient air monitoring data for the monitoring period from 2007 through 2009 collected at the monitoring sites discussed above, as recorded in AQS. On the basis of that review, EPA has concluded that this area attained the 1997 8-hour ozone NAAQS based on data for the 2007-2009 ozone seasons. Table 1 shows the ozone design values for the Clark County ozone nonattainment area monitors based on 2007-2009 ambient air quality monitoring data. Preliminary data available for 2010, summarized in table 2, are also consistent with continued attainment.

EPA's review of these data indicates that the Clark County ozone nonattainment area has met the 1997 8-hour ozone NAAQS. Preliminary air quality monitoring data available for 2010 are consistent with continued attainment.

V. EPA's Final Action

EPA is determining that the Clark County (Nevada) 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS based on 2007-2009 complete, quality-assured, and certified ambient air quality monitoring data. Preliminary data available to date for 2010 are consistent with continued attainment. As provided in 40 CFR 51.918, this determination of attainment suspends the requirements for the State of Nevada to submit, for the Clark County ozone nonattainment area, an attainment demonstration and associated RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS as long as the area continues to attain the 1997 8-hour ozone NAAQS.

We are publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal should adverse comments be filed. This action will be effective May 31, 2011, without further notice unless the EPA receives relevant adverse comments by April 28, 2011.

If we receive such comments, then we will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period. Parties interested in commenting should so at this time. If no such comments are received, the public is advised that this rule will be effective on May 31, 2011 and no further action will be taken on the proposed rule.

VI. Statutory and Executive Order Reviews

This action makes a determination of attainment based on air quality and suspends certain Federal requirements, and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is 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);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is 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.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is 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
• Does 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 determination that the Clark County ozone nonattainment area has attained the 1997 8-hour ozone NAAQS 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. 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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds