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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[NV029-0003A; FRL-5900-1]

Clean Air Act Reclassification; Nevada-Clark County Nonattainment

Area; Carbon Monoxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document EPA is making a final finding that the Clark

County, Nevada carbon monoxide (CO) nonattainment area has not attained

the CO national ambient air quality standard (NAAQS) under the Clean

Air Act (CAA) after having received a one year extension from the

mandated attainment date of December 31, 1995 for moderate

nonattainment areas to December 31, 1996. This finding is based on

EPA's review of monitored air quality data for compliance with the CO

NAAQS. As a result of this finding, the Clark County, Nevada

nonattainment area is reclassified as a serious CO nonattainment area

by operation of law. The intended effect of the reclassification is to

allow the State 18 months from the effective date of this action to

submit a new State Implementation Plan (SIP) demonstrating attainment

of the CO NAAQS as expeditiously as practical but no later than

December 31, 2000, the CAA attainment date for serious areas.

EFFECTIVE DATE: This action is effective on November 3, 1997.

FOR FURTHER INFORMATION CONTACT: Larry Biland, AIR-2, Air Division,

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

San Francisco, California 94105, (415) 744-1227.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and

Classifications

The Clean Air Act Amendments of 1990 (CAA) were enacted on November

15, 1990. Under section 107(d)(1)(C) of the CAA, each carbon monoxide

(CO)

[[Page 51605]]

area designated nonattainment prior to enactment of the 1990

Amendments, such as the Clark County area, was designated nonattainment

by operation of law upon enactment of the 1990 Amendments. Under

section 186(a) of the Act, 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), such as the Clark County area, were classified as

moderate. These nonattainment designations and classifications were

codified in 40 CFR part 81. See 56 FR 56694 (November 6, 1991).

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, 1995.1

---------------------------------------------------------------------------

\1\ The moderate area SIP requirements are set forth in section

187(a) of the Act and differ depending on whether the area's design

value is below or above 12.7 ppm. The Clark County area has a design

value below 12.7 ppm. 40 CFR 81.303.

---------------------------------------------------------------------------

B. Attainment Date Extensions

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

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

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

may, in its discretion, grant such an extension if: (1) The state has

complied with the requirements and commitments pertaining to the

applicable implementation plan for the area; and (2) the area has

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. Under section 186(a)(4), EPA may grant up to two such extensions

if these conditions have been met. EPA has granted Clark County one

extension to December 31, 1996. (61 FR 575407, Wednesday, Nov. 6,

1996).

C. Effect of Reclassification

CO nonattainment areas reclassified as serious are required to

submit, within 18 months of the area's reclassification, SIP revisions

providing for attainment of the CO NAAQS as expeditiously as

practicable but no later than December 31, 2000. In addition, the State

must submit a SIP revision that includes: (1) A forecast of vehicle

miles traveled (VMT) for each year before the attainment year and

provisions for annual updates of these forecasts; (2) adopted

contingency measures; and (3) adopted transportation control measures

and strategies to offset any growth in CO emissions from growth in VMT

or number of vehicle trips. See CAA sections 187(a)(7), 187(a)(2)(A),

187(a)(3), 187(b)(2), and 187(b)(1). Finally, upon the effective date

of this reclassification, contingency measures in the moderate area

plan for the Clark County, Nevada nonattainment area must be

implemented.

D. Proposed Finding of Failure to Attain

On June 26, 1997 EPA proposed to find that the Clark County, Nevada

carbon monoxide (CO) nonattainment area had failed to attain the CO

NAAQS by the applicable attainment date. 62 FR 34419. This proposed

finding was based on CO monitoring data collected at the East

Charleston monitoring site during the years 1995 and 1996. These data

demonstrate violations of the CO NAAQS in 1996. For the specific data

considered by EPA in making this proposed finding, see 62 FR 34419.

E. 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, whether the Clark County area has attained

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

an area has received an extension, EPA will determine whether an area's

air quality has met the CO NAAQS by the required date, or in the case

of Clark County by the extended date of December 31, 1996, based upon

the most recent two years of air quality data.

---------------------------------------------------------------------------

\2\ See generally memorandum from Sally L. Shaver, Director, Air

Quality Strategies and Standards Division, EPA, to Regional Air

Office Directors, entitled ``Criteria for Granting Attainment Date

Extensions, Making Attainment Determinations, and Determinations of

Failure to Attain the NAAQS for Moderate CO Nonattainment Areas,''

October 23, 1995 (Shaver memorandum).

---------------------------------------------------------------------------

EPA determines a CO nonattainment area's air quality status in

accordance with 40 CFR 50.8 and EPA policy.3 EPA has

promulgated two NAAQS for CO: an 8-hour average concentration and a 1-

hour average concentration. Because there were no violations of the 1-

hour standard in the Clark County area, this document addresses only

the air quality status of the Clark County area with respect to the 8-

hour standard. The 8-hour CO NAAQS requires that not more than one non-

overlapping 8-hour average in any consecutive two-year period per

monitoring site can exceed 9.0 ppm (values below 9.5 are rounded down

to 9.0 and they are not considered exceedances). The second exceedance

of the 8-hour CO NAAQS at a given monitoring site within the same two-

year period constitutes a violation of the CO NAAQS.

---------------------------------------------------------------------------

\3\ See memorandum from William G. Laxton, Director Technical

Support Division, entitled ``Ozone and Carbon Monoxide Design Value

Calculations'', June 18, 1990. See also Shaver memorandum.

---------------------------------------------------------------------------

II. Response to Comments on Proposed Finding

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

received no comments.

III. Today's Action

EPA is today taking final action to find that the Clark County CO

nonattainment area did not attain the CO NAAQS by December 31, 1996,

the CAA attainment date for moderate CO nonattainment areas. As a

result of this finding, the Clark County CO nonattainment area is

reclassified by operation of law as a serious CO nonattainment area as

of the effective date of this document. This finding is based upon air

quality data showing exceedances of the CO NAAQS during 1995 and 1996,

resulting in two violations in 1996.

IV. 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

[[Page 51606]]

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 the finding of failure to attain

finalized today would result in none of the effects identified in

section 3(f). Under section 186(b)(2) of the CAA, findings of failure

to attain and reclassification of nonattainment areas are based upon

air quality considerations and 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. In addition,

because the statutory requirements are clearly defined with respect to

the differently classified areas, and because those requirements are

automatically triggered by classifications that, in turn, are triggered

by air quality values, findings of failure to attain and

reclassification cannot be said to impose a materially adverse impact

on State, local, or tribal governments or communities.

V. Regulatory Flexibility Act

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 III of this document, findings of failure

to attain and reclassification of nonattainment areas under section

186(b)(2) of the CAA do not in-and-of-themselves create any new

requirements. Therefore, I certify that today's action does not have a

significant impact on small entities.

VI. Unfunded Mandates Act

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 of failure to attain and

reclassification of the Clark County nonattainment area are factual

determinations based upon air quality considerations and must occur by

operation of law and, hence, do not impose any Federal

intergovernmental mandate, as defined in section 101 of the Unfunded

Mandates Act.

VII. 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).

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations.

Authority: 42 U.S.C. 7401-7671q.

Dated: September 18, 1997.

Harry Seraydarian,

Acting Regional Administrator.

[FR Doc. 97-26187 Filed 10-1-97; 8:45 am]

BILLING CODE 6560-50-U