Federal Register, Volume 62 Issue 123 (Thursday, June 26, 1997)

[Federal Register Volume 62, Number 123 (Thursday, June 26, 1997)]
[Proposed Rules]
[Pages 34419-34421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16754]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[NV029-0003; FRL-5847-5]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to find that the Clark County, Nevada carbon
monoxide (CO) nonattainment area has not attained the CO national
ambient air quality standard (NAAQS) by 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. If EPA takes final action on
this proposed finding, the Clark County, Nevada nonattainment area will
be reclassified by operation of law as a serious nonattainment area. As
a result of a reclassification the State will have additional time to
submit a new State implementation plan (SIP) providing for attainment
of the CO NAAQS by no later than December 31, 2000, the CAA attainment
deadline for serious CO areas.

DATES: Written comments on this proposal must be received by July 28,
1997.

ADDRESSES: Written comments should be sent to: Julia Barrow, Chief, Air
Planning Office, AIR-2, U.S. Environmental Protection Agency, Region 9,
75 Hawthorne Street, San Francisco, California 94105.
The rulemaking docket for this document, Docket No. NV029-0003, may
be inspected and copied at the following location between 8 a.m. and
4:30 p.m. on weekdays. A reasonable fee may be charged for copying
parts of the docket. U.S. Environmental Protection Agency, Region 9,
Air Division, Air Planning Office, AIR-2,75 Hawthorne Street, San
Francisco, California 94105.
Copies of the docket are also available at the State and County
offices listed below:

Nevada Division of Environmental Protection, 333 West Nye Lane, Carson
City, Nevada, 89710; and,
Clark County Department of Comprehensive Planning, 500 South Grand
Central Parkway, Suite 3012, Las Vegas, Nevada, 89155-1741.

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) 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
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\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.
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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 the state has: (1)
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. (40 CFR Part 52 Vol. 61, No. 216,
Wednesday, Nov. 6, 1996).

C. 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

[[Page 34420]]

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.
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\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).
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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 notice 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.
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\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.
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II. Today's Action

By today's action, EPA is proposing to find that the Clark County
CO nonattainment area has failed to attain the CO NAAQS by December 31,
1996. This proposed finding is based upon air quality data showing
exceedances of the CO NAAQS during 1995 and 1996, resulting in two
violations in 1996.

A. Ambient Air Monitoring Data

The following table lists each of the monitoring sites in the Clark
County CO nonattainment area where the 8-hour CO NAAQS has been
exceeded during 1995 and 1996.

Exceedances of 8-hour Carbon Monoxide National Ambient Air Quality Standard\1\ in the Clark County, Nevada
Nonattainment Area
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1995 1996
Monitoring site ---------------------------------------------------------------------------
Concentration \2\ Date Concentration \2\ Date
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2850 East Charleston Blvd........... 10.2 ppm............... 11/23 10.1 ppm............... 1/6
....................... ........... 10.3 ppm............... 1/14
....................... ........... 10.2 ppm............... 3/10
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\1\ The eight-hour carbon monoxide NAAQS is 9 parts per million.
\2\ Concentration = monitored carbon monoxide concentration in parts per million.

1. 1995 Data
During calendar year 1995, Clark County exceeded the eight-hour CO
NAAQS once at the East Charleston monitoring site. Consequently, there
were no violations of the CO NAAQS in 1995.
2. 1996 Data
During the first quarter of 1996, Clark County exceeded the eight-
hour CO NAAQS three times, all at the East Charleston monitoring site.
These exceedances total two violations of the CO NAAQS.
3. Discussion of CO NAAQS Exceedances During the 1995-96 Winter CO
Season
Clark County qualified for an attainment date extension to December
31, 1996 by having no more than one exceedance of the CO NAAQS in the
nonattainment area in 1995. However, this achievement was clouded by
three exceedances of the CO NAAQS during January and March 1996. Clark
County raised several concerns with the East Charleston monitoring site
which recorded the violations, suggesting that siting problems biased
the data collected there.
a. Clark County Concerns With East Charleston Monitoring Site
In 1995 and early 1996, Clark County raised to EPA several concerns
with the siting of the East Charleston monitor, and also proposed
several changes to their CO monitoring network.⁴ Clark
County asserted that the configuration of the East Charleston
monitoring site was inconsistent with the requirements for National Air
Monitoring Stations (NAMS) given in the Code of Federal Regulations
(see 40 CFR Part 58) and this was biasing the data. Because of these
concerns, Clark County asked EPA to delay a finding of attainment or
nonattainment for the 1995 attainment deadline until new CO data was
collected during October to December of 1996 at the new monitoring
sites. Towards this end, Clark County proposed the following actions:
(a) to relocate the East Charleston monitoring station within the same
neighborhood; (b) to increase the number of EPA recognized neighborhood
sites by adding monitoring sites at East Sahara and East Flamingo
Boulevards, and at Crestwood Elementary School in the East Charleston
Blvd. vicinity, and, (c) to add a microscale monitoring station with
high pedestrian traffic at the Las Vegas Blvd. and Tropicana Ave.
intersection.
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\4\ See correspondence from Michael Naylor, Clark Co. Health
District to John Kennedy, U.S. Environmental Protection Agency,
February 7, 1996.
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In response to Clark County's concerns and proposal, EPA agreed
with revisions to the CO monitoring network in Clark County. The East
Charleston monitoring site continued to operate according to all
applicable protocols until its lease expired in 1997. Three new
monitoring sites were added to the Clark County air monitoring network
before the 1996-97 winter CO season: two neighborhood scale sites, one
at Sunrise Acres Elementary School and the other at Crestwood
Elementary School in the East Charleston area; and, a microscale site,
the MGM site, located on Las Vegas Blvd. at Tropicana. The Sunrise
Acres site was the direct replacement site for the high-CO East
Charleston site.
At the close of the winter 96-97 season Region 9 and the State of
Nevada examined whether East Charleston CO levels correlated with the
levels at

[[Page 34421]]

Sunrise Acres. Based on November 1996 to March 1997 CO data, EPA staff
determined that there was a strong correlation of peak 1- and 8-hour
average CO levels at East Charleston and Sunrise Acres. A comparison of
peak 8-hour CO concentrations at Sunrise Acres and the East Charleston
site showed that Sunrise Acres values consistently exceeded East
Charleston levels. With the continued operation of Sunrise Acres and
MGM replacement sites, and the value-added Crestwood site, Region 9
supported Clark County's shutdown of the East Charleston site. It is
implicit that in showing that Sunrise Acres closely tracked East
Charleston CO levels, that previous East Charleston data were valid.
Previous Clark County assertions that the configuration of the East
Charleston siting positively biased previously collected CO data are
inconsistent with EPA findings. Thus EPA considers data from the East
Charleston station collected in 1995-96 to be valid for regulatory
purposes. EPA is relying on this data in the proposed finding that
Clark County failed to attain the Federal CO standard on December 31,
1996.

B. SIP Requirements for Serious CO Areas

CO nonattainment areas reclassified as serious under section
186(b)(2) of the CAA are required to submit, within 18 months of the
area's reclassification, SIP revisions demonstrating attainment of the
CO NAAQS as expeditiously as practicable but no later than December 31,
2000. The serious CO area planning requirements are set forth in
section 187(b) of the CAA. EPA has issued two general guidance
documents related to the planning requirements for CO SIPs. The first
is the ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990'' that sets forth EPA's preliminary
views on how the Agency intends to act on SIPs submitted under Title I
of the Act. See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070
(April 28, 1992). The second general guidance document for CO SIPs
issued by EPA is the ``Technical Support Document to Aid the States
with the Development of Carbon Monoxide State Implementation Plans,''
July 1992.
If the Clark County area is reclassified to serious, the State
would have to submit a SIP revision to EPA within 18 months of the
final reclassification that, in addition to the attainment
demonstration, includes: (1) Any new measures necessary to attain the
standard; (2) a forecast of vehicle miles traveled (VMT) for each year
before the attainment year and provisions for annual updates of these
forecasts; (3) adopted contingency measures; and (4) 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).
Upon reclassification, contingency measures in the moderate area plan
for the Clark County area must be implemented.

III. 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 the finding of failure to attain
proposed 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.

IV. 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 III of this notice, 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 proposed action does
not have a significant impact on small entities.

V. 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 proposed 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.

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: June 16, 1997.
Felicia Marcus,
Regional Administrator.
[FR Doc. 97-16754 Filed 6-25-97; 8:45 am]
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