Clean Air Act Reclassification; Nevada-Clark County Nonattainment Area; Carbon Monoxide

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NV-029-0001; FRL-5644-8]

Clean Air Act Reclassification; Nevada-Clark County Nonattainment

Area; Carbon Monoxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA finds that the Clark County, Nevada carbon monoxide (CO)

nonattainment area has met the criteria

[[Page 57332]]

in section 186(b)(4) of the Clean Air Act (CAA): it exceeded the CO

National Ambient Air Quality Standard (NAAQS) once in 1995; it has

adopted and implemented the CAA required moderate nonattainment area

control measures; and, it has demonstrated progress towards attaining

the CO NAAQS. As a result of this finding, EPA grants a one-year

extension of Clark County's moderate area attainment date from December

31, 1995 to December 31, 1996. EPA's finding is based on a review of

monitored air quality data for compliance with the CO NAAQS, as well as

the air quality planning progress of Clark County. With EPA's extension

of the CAA mandated attainment date for one year, the Clark County CO

nonattainment area remains classified as a moderate CO nonattainment

area. The intended effect of EPA's attainment date extension is to

allow Nevada and Clark County either to fully implement and strengthen

current CO control measures, or to adopt additional control measures

prior to the 1996-97 winter CO season in an effort to attain the CO

NAAQS.

EFFECTIVE DATE: This action is effective on December 6, 1996.

FOR FURTHER INFORMATION CONTACT: Jerry Wamsley, A-2-2, Air and Toxics

Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne

Street, San Francisco, California 94105, (415) 744-1226.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and

Classifications

In 1990, under section 107(d)(1)(C) of the Clean Air Act Amendments

(CAA), each carbon monoxide (CO) area designated nonattainment prior to

enactment of the 1990 Amendments was designated nonattainment by

operation of law. Under section 186(a) of the CAA, each CO area

designated nonattainment under section 107(d) was also classified by

operation of law as either ``moderate'' or ``serious'' depending on the

severity of the area's air quality problem. CO areas with design values

between 9.1 and 16.4 parts per million (ppm) were classified as

moderate. States containing areas that were classified as moderate

nonattainment by operation of law under section 107(d) were required to

submit State implementation plans (SIPs) designed to attain the CO

national ambient air quality standard (NAAQS) as expeditiously as

practicable but no later than December 31, 1995.

On November 6, 1991, Clark County was designated nonattainment for

CO and was classified as a ``high'' moderate area given its design

value of 14.4 ppm (parts per million) (See 56 FR 56694 published in the

Federal Register on November 6, 1991 and 40 CFR 81.329.) The moderate

area SIP requirements are set forth in section 187(a) of the CAA and

differ depending on whether the area's design value is below or above

12.7 ppm. Clark County is required to meet the ``high'' moderate

nonattainment area requirements, because of its 14.4 ppm design value,

and attain the CO NAAQS by December 31, 1995.

B. Reclassification to a Serious Nonattainment Area

EPA has the responsibility, pursuant to sections 179(c) and

186(b)(2) of the CAA, of determining within six months of the

applicable attainment date, December 31, 1995, whether a moderate area

has attained the CO NAAQS. Under section 186(b)(2)(A), if EPA finds

that a moderate area has not attained the CO NAAQS, it is reclassified

as serious by operation of law. Pursuant to section 186(b)(2)(B) of the

Act, EPA must publish a document in the Federal Register identifying

areas which failed to attain the standard and therefore must be

reclassified as serious by operation of law.

EPA makes attainment determinations for CO nonattainment areas

based upon whether an area has two years (or eight consecutive

quarters) of clean air quality data. Section 179(c)(1) of the Act

states that the attainment determination must be based upon an area's

``air quality as of the attainment date.'' Consequently, EPA will

determine whether an area's air quality has met the CO NAAQS by

December 31, 1995 based upon the most recent two years of air quality

data entered into the Aerometric Information Retrieval System (AIRS)

data base.

The reader should consult EPA's notice of proposed rulemaking for

this action for a more detailed discussion of the applicable CAA

requirements and EPA guidance on those requirements and the method of

calculating CO NAAQS violations for reclassification purposes. Please

see 61 FR 41759 (August 12, 1996).

C. Attainment Date Extensions

If a state does not have the two consecutive years of clean data

necessary to show attainment of the CO NAAQS, it may apply, under

section 186(a)(4) of the CAA, for a one year attainment date extension.

At its discretion, EPA may grant an extension if the area has: (1)

Measured no more than one exceedance of the CO NAAQS at any monitoring

site in the nonattainment area in the year preceding the extension

year; and (2) complied with the requirements and commitments pertaining

to the applicable implementation plan for the area. Consequently, EPA

will examine the moderate area's air quality planning progress and will

be disinclined to grant an attainment date extension unless a State

has, in substantial part, addressed its moderate area CO planning

obligations. To determine if the State has substantially met these

planning requirements, EPA will review the State's attainment date

extension application to assess whether the State has: (1) Adopted and

substantially implemented control measures to satisfy the requirements

for a moderate CO nonattainment area; and (2) that reasonable further

progress is being met for the area.

If the State cannot make a sufficient demonstration that the area

has met the extension criteria described above and EPA determines that

the area has not demonstrated attainment of the CO NAAQS, then the area

will be reclassified as serious by operation of law pursuant to section

186(b)(2) of the Act. If an extension is granted, then, at the end of

the extension year, EPA will review the area's air quality data to

determine if the area has attained the CO NAAQS.

Under section 186(a)(4), EPA may grant up to two one year

extensions if these conditions have been met. However, if the area

measures a violation of the CO NAAQS during the extension year, the

area will be unable to qualify for a second one year extension. Then,

once EPA makes a finding of failure to attain the CO NAAQS, the

moderate area will be reclassified as serious by operation of law.

D. EPA's Proposed Attainment Date Extension for Clark County

On August 12, 1996, EPA proposed to find that the Clark County,

Nevada carbon monoxide (CO) nonattainment area has met the criteria in

section 186(b)(4) of the Clean Air Act (CAA): it exceeded the CO

National Ambient Air Quality Standard (NAAQS) once in 1995; it has

adopted and implemented the CAA required moderate nonattainment area CO

control measures; and, it has demonstrated progress towards attaining

the CO NAAQS. As a result of this finding, EPA proposed to grant a one-

year extension of Clark County's moderate area attainment date from

December 31, 1995 to December 31, 1996. EPA's proposed finding was

based on a review of monitored air quality data from 1994

[[Page 57333]]

and 1995 for compliance with the CO NAAQS, as well as the air quality

planning progress of Clark County.

The reader should consult EPA's notice of proposed rulemaking for a

more detailed discussion of monitored air quality in Clark County,

especially CO values observed in 1995 and 1996, and for EPA's review of

Clark County's attainment date extension application. Please see 61 FR

41759 (August 12, 1996).

II. Response to Comments on Proposed Finding

During the public comment period on EPA's proposed finding, EPA

received no comments.

III. Today's Final Action

EPA takes final action on its proposal and finds that the Clark

County CO nonattainment area has met the criteria in section 186(b)(4)

of the CAA. As a result of this finding, EPA grants a one-year

extension of Clark County's moderate area attainment date from December

31, 1995 to December 31, 1996. This finding is based on both EPA's

review of 1994 and 1995 monitored air quality data for compliance with

the CO NAAQS and EPA's review of Clark County's application for an

attainment date extension. With this final action, Clark County remains

classified as a moderate CO nonattainment area.

After December 31, 1996, EPA will again review the air quality data

for Clark County to determine if it has attained the CO NAAQS. If Clark

County measures violations of the CO NAAQS during 1996, the area will

be unable to qualify for a second one year extension. Then, after an

EPA finding of failure to attain the CO NAAQS, Clark County would be

reclassified as a serious carbon monoxide nonattainment area by

operation of law.

IV. Regulatory Process

A. Executive Order (EO) 12866

Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to

determine whether regulatory actions are significant and therefore

should be subject to OMB review, economic analysis, and the

requirements of the Executive Order. The Executive Order defines a

``significant regulatory action'' as one that is likely to result in a

rule that may meet at least one of the four criteria identified in

section 3(f), including, under paragraph (1), that the rule may ``have

an annual effect on the economy of $100 million or more or adversely

affect, in a material way, the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities.''

The Agency has determined that extending attainment dates would not

result in the effects identified in section 3(f). Under section

186(a)(4) of the CAA, attainment date extensions are based upon air

quality conditions and planning considerations and are either

administrative in nature, or must occur by operation of law in light of

certain air quality conditions. They do not, in-and-of-themselves,

impose any new requirements on any sectors of the economy.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

As discussed in section IV. of this document, attainment date

extensions under section 186(a)(4) of the CAA do not create any new

requirements. Therefore, I certify that today's proposed action does

not have a significant impact on small entities.

C. Unfunded Mandates

Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act

of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, EPA

must assess whether various actions undertaken in association with

proposed or final regulations include a Federal mandate that may result

in estimated costs of $100 million or more to the private sector, or to

State, local or tribal governments in the aggregate. EPA believes, as

discussed above, that the finding that Clark County nonattainment area

meets the criteria in section 186(a)(4) and thereby qualifies for an

attainment date extension is a factual determination based upon air

quality considerations and must occur by operation of law and, hence,

does not impose any Federal intergovernmental mandate, as defined in

section 101 of the Unfunded Mandates Act.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitionsfor judicial

review of this action must be filed in the United States Court of

Appeals for the appropriate circuit by January 6, 1997. 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 post pone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce it requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: October 17, 1996.

Felicia Marcus,

Regional Administrator.

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. 7401-7671q.

Subpart DD--Nevada

2. Subpart DD is amended by adding Sec. 52.1478 to read as follows:

Sec. 52.1478 Extensions.

The Administrator, by the authority delegated under section

186(a)(4) of the Clean Air Act as amended in 1990, hereby extends for

one year, until December 31, 1996, the attainment date for the Clark

County (Las Vegas Valley), Nevada carbon monoxide nonattainment area.

[FR Doc. 96-28478 Filed 11-5-96; 8:45 am]

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