Approval and Promulgation of Implementation Plans; State of Nevada; Las Vegas Valley Carbon Monoxide Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action under the Clean Air Act to approve State implementation plan revisions submitted by the State of Nevada to provide for attainment of the carbon monoxide national ambient air quality standards in Las Vegas Valley, including an alternate low enhanced vehicle inspection and maintenance program, State and local wintertime gasoline rules, and motor vehicle emissions budgets for transportation conformity.

DATES:

This rule is effective on October 21, 2004.

ADDRESSES:

You can inspect copies of the docket for this action during normal business hours at EPA's Region IX office. You can inspect copies of the submitted SIP materials at the following locations:

U.S. EPA, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Nevada Dept. of Conservation and Natural Resources, Division of Environmental Protection, 333 West Nye Lane, Room 138, Carson City, NV 89706.

Clark County Department of Air Quality Management, 500 S. Grand Central Parkway, Las Vegas, NV 89155.

Electronic Availability

This document and the Response to Comments Document for this action are also available as electronic files on EPA's Region IX Web Page at http://www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT:

Karina O'Connor, Air Planning Office (AIR-2), Air Division, U.S. EPA, Region IX, (775) 833-1276, or oconnor.karina@epa.gov.

SUPPLEMENTARY INFORMATION:

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

I. Proposed Action

On January 28, 2003 (68 FR 4141), with the exception of two individual contingency measures that we proposed to disapprove, we proposed to approve the following state implementation plan (SIP) revisions submitted by the State of Nevada to provide for attainment of the carbon monoxide (CO) national ambient air quality standards (NAAQS) under the Clean Air Act, as amended in 1990 (CAA or “Act”), in the “serious” Clark County CO nonattainment area, which is defined as State hydrographic area #212 and referred to as the “Las Vegas Valley”:

(1) State of Nevada State Implementation Plan for an Enhanced Program for the Inspection and Maintenance of Motor Vehicles for Las Vegas Valley and Boulder City (March 1996) submitted by the Nevada Division of Environmental Protection (NDEP) on March 20, 1996;

(2) Carbon Monoxide State Implementation Plan, Las Vegas Valley Nonattainment Area, Clark County, Nevada (August 2000) (“2000 CO plan”) adopted by the Clark County Board of Commissioners on August 1, 2000, and submitted by NDEP on August 9, 2000, which addresses requirements under the Act for notice and adoption, baseline and projected emissions inventories, the reasonable further progress (RFP) demonstration, the attainment demonstration, vehicle miles traveled (VMT) forecasts, and which also includes updated vehicle inspection and maintenance (I/M) program materials, Clark County's Cleaner Burning Gasoline (CBG) program, an alternative fuel program for government vehicles, voluntary transportation control measures (TCMs), a determination that stationary sources do not contribute significantly to CO levels, contingency measures , commitments for further submittals and control measures, as needed, and CO emissions budgets for transportation conformity purposes;

(3) Supplemental CO SIP materials submitted by NDEP on January 30, 2002, including updated State regulations implementing the vehicle I/M program, other updated I/M program materials, and a draft regulation establishing procedures for on-board diagnostics systems testing of newer vehicles; and

(4) Supplemental CO SIP materials submitted by NDEP on June 4, 2002, including updated State statutes governing the I/M program, other updated vehicle I/M program materials, and the State regulation implementing the Reid Vapor Pressure (RVP) specification for wintertime gasoline sold in Clark County.

The proposal contains detailed information on the four SIP submittals listed above and our evaluation of the submittals against applicable CAA provisions and EPA regulations and policies relating to serious area CO SIPs.

In the proposed rule, we indicated that we were proposing approval of certain portions of the SIP submittals based on draft rules and that our final approval would not occur until we had received final adopted rules from the State. As discussed in the following paragraphs, the State has submitted the final adopted rules called for in the proposed rule, and in this action, we are approving them as revisions to the Nevada SIP.

By letters dated September 9 and 24, 2003, NDEP submitted SIP revisions that included Regulation R178-01 adopted by the Nevada Department of Motor Vehicles (DMV) on July 11, 2002 establishing the standardized On-Board Diagnostics systems (also known as “OBD II”) test procedures for Nevada's vehicle I/M program and related public notice and hearing materials. The regulatory changes to the Nevada Administrative Code under adopted regulation R178-01 were made effective as of August 21, 2002. (The September 24th SIP submittal included a replacement version of Regulation R178-01 because the September 9th version of that adopted regulation was missing pages that inadvertently had been omitted from the earlier submittal.) In the proposed rule, we indicated that we would not take final action on the vehicle I/M program until we received the final adopted version of regulations establishing test procedures and equipment used for inspecting certified on-board diagnostics systems. See 68 FR 4141, at 4150, column 1 (January 28, 2003). These two SIP submittals contain the necessary final adopted regulations and supporting materials and thereby provide us with the basis to finalize our proposed approval of the vehicle I/M program for Las Vegas Valley and Boulder City. The final adopted regulation is consistent with the draft regulation that provided the basis for our proposed approval of the vehicle I/M program for Las Vegas Valley and Boulder City.

The September 9th SIP submittal also contains State statutes providing for the “alternate low” enhanced vehicle I/M program in Las Vegas Valley and Boulder City. These statutes represent an update to the corresponding statutes that were included as part of the SIP submittal dated March 20, 1996 (listed above), and referred to in the proposed rule as the “1996 vehicle I/M submittal.” See 68 FR 4141, at 4143, column 1 (January 28, 2003). The updated statutes largely reflect administrative changes in the statutes and are equivalent in all significant respects to those submitted to EPA in 1996 and listed in the proposed rule.

Lastly, by letter dated November 10, 2003, NDEP submitted a SIP revision including the following updated Clark County fuel regulations: section 53 (oxygenated gasoline program) and section 54 (cleaner burning gasoline (CBG): Wintertime program), which had been adopted by the Clark County Board of County Commissioners on May 20, 2003, and made effective June 3, 2003. The revisions to sections 53 and 54 are administrative in nature and reflect the transfer of air pollution control authority in Clark County to the Clark County Board of County Commissioners. This completes a sequence of transfers of authority that began in mid-2001 with the transfer of air pollution control authority in Clark County from the Clark County District Board of Health, which originally adopted these rules and which oversaw the Air Quality Division of the Clark County Health District, to the Clark County Board of County Commissioners sitting as the short-lived “Clark County Air Quality Management Board,” and then more recently to the Clark County Board of County Commissioners.

The Clark County Board of County Commissioners oversees the Department of Air Quality Management (DAQM), which took over the responsibilities of the former Air Quality Division of the Clark County Health District as well as the air quality planning responsibilities of the Clark County Department of Comprehensive Planning. We had made submittal of the updated section 54 a condition on our final approval of that rule. See 68 FR 4141, at 4152, column 3 (January 28, 2003). The State's November 10th submittal satisfies this condition allowing us to take final action on the rule.

In 1999, we approved section 53 as a revision to the Nevada SIP. See 64 FR 29573 (June 2, 1999). Like section 54, the amended version of section 53 submitted to EPA as part of the November 10th SIP submittal simply reflects the change in the applicable administrative agency for air pollution control purposes in Clark County.

We are taking final action on the September 9 and 24, 2003 and November 10, 2003 SIP submittals in this final rule without additional notice and comment because the updated I/M-related statutes and fuel regulations differ in only minor respects from those statutes that were previously listed in the proposal, or in the case of section 53, the updated regulation reflects only administrative changes. In addition, the proposal adequately described and evaluated the provisions requiring on-board diagnostics systems checks based on submitted draft regulations under EPA's “parallel processing” procedure, (see 68 FR 4141, at 4143, column 3 (January 28, 2003)), and the approval of the CBG rule was conditioned upon submittal of the updated rule (see 68 FR 4141, at 4151, column 2 (January 28, 2003)).

II. Public Comments

EPA's proposed action provided for a 30-day public comment period. During this period, we received comments from the following parties:

(1) Peter Krueger, Nevada Emission Testers Council, letter dated February 19, 2003, providing comments related to possible Legislative action to reduce the frequency of testing under the vehicle I/M program;

(2) Edward C. Barry, Chemical Lime Company, letter dated February 24, 2003, providing comments related to the CO emissions estimate in the 2000 CO plan for its facility;

(3) Fredrick R. Slater, Kerr-McGee Chemical, LLC, letter dated February 26, 2003, providing comments related to an alternative approach (i.e., to finalizing the action as proposed) involving redesignation and working with the County to develop a maintenance plan; and

(4) Robert W. Hall, Nevada Environmental Coalition, Inc., letter dated February 27, 2003, providing comments related to virtually all aspects of the CO SIP revision submittals and EPA's related proposed approval, including statutory and regulatory authority, CO emissions inventory and projections, ambient CO monitoring network, notice and public hearing, use of EPA guidance in evaluating SIP submittals, the vehicle I/M program, EPA's parallel processing procedure, evaluation of non-fuel measure alternatives, the attainment demonstration, the status of the (stationary source) new source review program, the forecasts of vehicle miles traveled (VMT), contingency measures, transportation conformity, and EPA enforcement of SIP rules.

Responses to all comments can be found in our Response to Comments Document that accompanies this final action. A copy of the Response to Comments Document can be downloaded from our website or obtained by calling or writing the contact person listed above. The comments led us to look more carefully at certain aspects of the plan and certain aspects of our proposed approval; however, with the exception of the contingency provisions (for which we are not taking final action in this notice), we have not changed our conclusions that the various SIP revisions submitted for the Las Vegas Valley CO nonattainment area comply with CAA CO nonattainment planning requirements.

III. EPA Action

Pursuant to section 110(k)(3) of the Act, we are finalizing the following actions on the various SIP submittals for the Las Vegas Valley “serious” CO nonattainment area in Clark County, Nevada. For each action, we indicate the page or pages on which the element is discussed in our proposal.

(1) Approval of procedural requirements, under section 110(a)(1) of the Act—see 68 FR 4144;

(2) Approval of baseline and projected emission inventories, under sections 172(c)(3) and 187(a)(1) of the Act and approval of reasonable further progress, under sections 172(c)(2) and 187(a)(7) of the Act—see 68 FR 4144-4146;

(3) Approval of attainment demonstration, under section 187(a)(7) of the Act—68 FR 4146-4147;

(4) Approval of the “alternate low” vehicle I/M program for Las Vegas Valley and Boulder City under section 187(a)(6) of the Act—see 68 FR 4147-4150. Specifically, we approve the statutory and regulatory basis for the program set forth in Nevada Revised Statutes (NRS), title 40, section 445B.210 and sections 445B.700-445B.845, and title 43, sections 481.019-481.087, 482.155-482.290, 482.385, 482.461, 482.565, and 484.644-484.6441, as amended by the State of Nevada through the 2001 Legislative sessions, and Nevada Administrative Code (NAC), chapter 445B, sections 445B.400-445B.735 (excluding sections 445B.576, 445B.577, and 445B.578, which are associated with restrictions on visible emissions and on idling of diesel vehicles not required by EPA I/M program requirements), as amended through March 8, 2002 by the Nevada State Environmental Commission and the Nevada Department of Motor Vehicles, and also Regulation R178-01 as adopted by the Nevada Department of Motor Vehicles on July 11, 2002 (made effective August 21, 2002) establishing on-board diagnostics systems testing procedures for Nevada's vehicle I/M program. Upon the effective date of this final rule, the amended Nevada vehicle I/M program described in this notice will supercede the existing vehicle I/M program approved by EPA in 1981 and 1984 as it relates to Las Vegas Valley and Boulder City;

(5) Approval of the State's low RVP wintertime requirement for gasoline sold in Clark County—see 68 FR 4150-4151. Specifically, we propose to approve Nevada Administrative Code section 590.065 as adopted on October 28, 1998 by the State Board of Agriculture;

(6) Approval of Clark County air quality regulation section 54 (Cleaner Burning Gasoline (CBG): Wintertime Program) under section 211(c)(4)(C) of the Act, as adopted by the Clark County Board of County Commissioners on May 20, 2003 (effective June 3, 2003)—see 68 FR 4151-4152;

(7) Approval of RTC's CAT MATCH commuter incentive program under section 187(b)(2) of the Act and our voluntary mobile source emissions reduction program policy—see 68 FR 4152-4153. Specifically, we approve the CAT MATCH guidelines as set forth in the Clark County Regional Transportation Commission's Resolution No. 177, adopted on June 10, 1999, and the commitments to implement and monitor the program, to prepare annual reports and to remedy, in a timely manner, any shortfall of emissions reductions, as set forth in the Clark County Regional Transportation Commission's Resolution No. 186, adopted on June 8, 2000;

(8) Approval of the Alternative Fuels Program for government vehicles in Clark County—see 68 FR 4153. Specifically, we approve the regulations set forth in Nevada Administrative Code chapter 486A, as amended through April 20, 2000 by the State Environmental Commission;

(9) Approval of a determination that stationary sources do not contribute significantly to ambient CO levels in the Las Vegas CO nonattainment area for the purposes of section 187(c) of the Act—see 68 FR 4153-4154;

(10) Approval of VMT forecasts and the responsible agencies' commitments to revise and replace the VMT projections as needed and monitor actual VMT levels in the future, under section 187(a)(2)(A) of the Act—see 68 FR 4154. Specifically, we approve the Clark County Regional Transportation Commission's commitments to prepare VMT estimates, forecasts, and annual VMT tracking reports as set forth in Resolution No. 149, as adopted on July 13, 1995;

(11) Approval of the CO motor vehicle emissions budgets for 2000 (310.2 tons per day), 2010 (329.5 tons per day), and 2020 (457.4 tons per day) as meeting the purposes of section 176(c)(1) and the transportation conformity rule at 40 CFR 93, subpart A—see 68 FR 4155-4156; and

(12) Approval of amended Clark County SIP rule (section 53—Oxygenated Gasoline Program), adopted by the Clark County Board of County Commissioners on May 20, 2003 (effective June 3, 2003) making administrative changes to substitute the Clark County Board of County Commissioners and Department of Air Quality Management for its corresponding predecessors, the Clark County Board of Health and the Air Quality Division of the Clark County Health District. NDEP submitted this revised SIP rule with a similarly-revised version of Clark County air quality regulation section 54 to EPA as a SIP revision on November 10, 2003. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is such good cause for making our approval of amended Clark County air quality regulation section 53 (Oxygenated Gasoline Program), as adopted on May 20, 2003, final without prior proposal and opportunity for comment because the amended rule merely substitutes the current local administrative agency for its predecessor. Thus, notice and public procedure are unnecessary. Upon the effective date of this final rule, the amended section 53 will supercede the existing SIP section 53, approved by EPA on June 2, 1999 (see 64 FR 29573), in the Nevada SIP.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (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 a state rule 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. 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 22, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart DD—Nevada

2. Section 52.1470 is amended by adding paragraphs (c)(46), (c)(47), (c)(48), (c)(49), (c)(50), (c)(51), and (c)(52) to read as follows: