[Federal Register Volume 68, Number 240 (Monday, December 15, 2003)]
[Rules and Regulations]
[Pages 69611-69618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30369]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[NV 050-0073A; FRL-7595-3]


Approval and Promulgation of Implementation Plans; State of 
Nevada; Designation of Areas for Air Quality Planning Purposes; Lake 
Tahoe Nevada Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On October 27, 2003, the State of Nevada requested EPA to 
redesignate the Lake Tahoe Nevada ``not classified'' carbon monoxide 
(CO) nonattainment area to attainment for the CO National Ambient Air 
Quality Standards (NAAQS) and submitted a CO maintenance plan for the 
area as a revision to the Nevada State Implementation Plan (SIP). In 
this action, EPA is approving the maintenance plan and redesignating 
the Lake Tahoe Nevada nonattainment area to attainment. EPA is also 
determining that the maintenance plan is adequate for transportation 
conformity purposes under the limited maintenance plan policy for CO.

DATES: This direct final rule is effective February 13, 2004, without 
further notice, unless we receive adverse comments by January 14, 2004. 
Elsewhere in this Federal Register, we are proposing approval and 
soliciting written comment on this action. If adverse written comments 
are received, we will withdraw the direct final rule and address the 
comments received in a new final rule; otherwise no further rulemaking 
will occur on this approval action.

ADDRESSES: Please address your comments to Eleanor Kaplan, Air Planning 
Office (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901 or e-mail to 
[email protected], or submit comments at
http://www.regulations.gov. A copy of the State's submittal is 
available for public inspection during normal business hours at EPA's 
Region IX office. Please contact Eleanor Kaplan if you wish to schedule 
a visit. A copy of the submittal is also available at the Nevada 
Department of Conservation and Natural Resources, Division of 
Environmental Protection, 333 West Nye Lane, Carson City, Nevada 89706.

FOR FURTHER INFORMATION CONTACT: Eleanor Kaplan, EPA Region IX at (415) 
947-4147 or [email protected]

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to EPA. This supplementary information is organized 
as follows.

Table of Contents

I. What Is the Purpose of This Action?
II. What Is the State's Process To Submit These Materials to EPA?
III. EPA's Evaluation of the Redesignation Request and Maintenance 
Plan
    A. The Area Must Have Attained the Carbon Monoxide NAAQS
    B. The Area Must Have Met All Applicable Requirements Under 
Section 110 and Part D
    1. Section 110 Requirements
    2. Part D Requirements
    (a) Section 172(c)(3)--Emissions Inventory
    (b) Section 172(c)(5)--New Source Review (NSR)
    (c) Section 172(c)(7)--Compliance With CAA Section 110(a)(2): 
Air Quality Monitoring Requirements
    C. The Area Must Have a Fully Approved SIP Under Section 110(k) 
of the CAA
    D. The Area Must Show the Improvement in Air Quality is Due to 
Permanent and Enforceable Emissions Reductions
    E. The Area Must Have a Fully Approved Maintenance Plan Under 
CAA Section 175A
    1. Emissions Inventory--Attainment Year
    2. Demonstration of Maintenance
    3. Monitoring Network and Verification of Continued Attainment
    4. Contingency Plan
IV. Conformity
    A. How Is Transportation Conformity Demonstrated to a Limited 
Maintenance Plan?
    B. What Is the Adequacy Status of This Limited Maintenance Plan?
    C. Are the Requirements for General Conformity Altered Under 
This Limited Maintenance Plan?
V. Final Action
VI. Administrative Requirements

I. What Is the Purpose of This Action?

    EPA is redesignating the Lake Tahoe, Nevada ``not classified'' CO 
nonattainment area from nonattainment to attainment and approving the 
maintenance plan that will keep the area in attainment for the next ten 
years.
    We originally designated the Lake Tahoe Basin as nonattainment for 
CO under the provisions of the Clean Air Act (CAA or ``Act''), as 
amended in 1977. See 43 FR 8962 (March 3, 1978). The Lake Tahoe Basin 
nonattainment area (``Lake Tahoe Nevada area'') is defined by State 
hydrographic area 90, which includes the southwestern corner of Washoe 
County and the western-most portions of Carson City and Douglas 
counties.
    On November 15, 1990, the Clean Air Act Amendments of 1990 were 
enacted.\1\ Under section 107(d)(1)(C) of the Act, as amended in 1990, 
the Lake Tahoe Nevada area was designated nonattainment for CO by 
operation of law because the area had been designated as nonattainment 
before November 15, 1990. Later, we categorized the Lake Tahoe Nevada 
area as an unclassified, or ``not classified'', CO nonattainment area 
because there were no violations of the CO standard during the two 
calendar years immediately preceding enactment of the 1990 Clean Air 
Act Amendments. See 56 FR 56694, at 56798 (November 6, 1991), codified 
at 40 CFR 81.329.
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    \1\ Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 
7401-7671q.
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    Nonattainment areas can be redesignated to attainment after the 
area has measured air quality data showing it has attained the NAAQS 
and when certain planning requirements are met. Section 107(d)(3)(E) of 
the CAA provides the requirements for redesignation. These are:
    (i) EPA determines that the area has attained the NAAQS;
    (ii) EPA has fully approved the applicable implementation plan for 
the area under section 110(k) of the Act;
    (iii) EPA determines that the improvement in air quality is due to

[[Page 69612]]

permanent and enforceable reductions in emissions resulting from 
implementation of the applicable implementation plan, applicable 
Federal air pollution control regulations, and other permanent and 
enforceable reductions;
    (iv) EPA has fully approved a maintenance plan for the area as 
meeting the requirements of CAA section 175A; and
    (v) The State containing the area has met all requirements 
applicable to the area under section 110 and part D of the CAA.
    Before an area can be redesignated to attainment, all applicable 
State Implementation Plan (SIP) elements must be fully approved.

II. What Is the State's Process To Submit These Materials to EPA?

    The CAA requires States to follow certain procedural requirements 
for submitting SIP revisions to EPA. Section 110(a)(2) of the CAA 
requires that each SIP revision be adopted by the State after 
reasonable notice and public hearing.
    The Nevada Division of Environmental Protection (NDEP),\2\ which is 
the designated air planning agency for the Lake Tahoe Nevada area, 
developed the CO maintenance plan. On September 18, 2003, the State 
Environmental Commission, which acts on regulatory initiatives proposed 
by NDEP, held a public hearing ``video conference'' that was accessible 
from NDEP offices in Reno and Las Vegas. On September 18, 2003, the 
State Environmental Commission adopted the Carbon Monoxide 
Redesignation Request and Limited Maintenance Plan for the Nevada Side 
of the Lake Tahoe Basin. On October 27, 2003, NDEP submitted the 
maintenance plan and redesignation request to EPA. EPA has determined 
that the State met the requirements for reasonable notice and public 
hearing under section 110(a)(2) of the CAA.
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    \2\ As noted above, the Lake Tahoe Nevada area consists of parts 
of three counties: Carson City, Douglas and Washoe Counties. With 
respect to air pollution control, Carson City and Douglas Counties 
are under NDEP's jurisdiction; Washoe County is under the 
jurisdiction of the Washoe County District Health Department 
(WCDHD). The WCDHD, in a letter to NDEP dated July 31, 2003, has 
asked NDEP to integrate their request for redesignation with NDEP's.
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III. EPA's Evaluation of the Redesignation Request and Maintenance Plan

    EPA has reviewed the State's maintenance plan and redesignation 
request and is approving the maintenance plan as a revision to the 
Nevada SIP and is approving the request to redesignate the area to 
attainment consistent with the requirements of CAA section 
107(d)(3)(E). The following is a summary of EPA's evaluation and a 
description of how each requirement is met.

A. The Area Must Have Attained the Carbon Monoxide NAAQS

    Section 107(d)(3)(E)(i) requires that EPA determine that the area 
has attained the applicable NAAQS as a prerequisite to redesignating an 
area to attainment. The primary NAAQS for CO is 9 parts per million 
(ppm)(10 milligrams per cubic meter) for an 8 hour average 
concentration not to be exceeded more than once per year as determined 
at each monitoring site in the area. See 40 CFR 50.8 and 40 CFR part 
50, appendix C. EPA considers an area as attaining the CO NAAQS when 
all of the CO monitors in the area have an exceedance rate of 1.0 or 
less each calendar year over a two-calendar year period. EPA's 
interpretation of this requirement is that an area seeking 
redesignation to attainment must show attainment of the CO NAAQS for at 
least two consecutive years (see September 4, 1992, John Calcagni 
policy memorandum ``Procedures for Processing Requests to Redesignate 
Areas to Attainment'' (``Calcagni Memorandum'')). In addition, the area 
must continue to show attainment through the date that EPA promulgates 
redesignation to attainment in the Federal Register.
    Nevada's redesignation request for the Lake Tahoe Nevada area is 
based on valid ambient air quality data. Ambient air quality monitoring 
data for calendar years 2001 through 2002 show a measured exceedance 
rate of the CO NAAQS of 1.0 or less per year at all monitoring sites. 
These data were collected and analyzed as required by EPA (see 40 CFR 
50.8 and 40 CFR part 50, appendix C) and have been stored in EPA's Air 
Quality System (AQS) database, formerly referred to as the Aerometric 
Information Retrieval System (AIRS). These data have met minimum 
quality assurance requirements and have been certified by the State as 
being valid before being included in AQS.
    Ambient air quality monitoring data at the area's two monitors for 
past years, at Stateline for the years 2001 through 2002 and at Incline 
Village for the years 2000 and 2001, are shown in Tables 1 and 2 below. 
Table 1 shows no violations of the 8 hour CO NAAQS at the Stateline 
site for the years 2001 and 2002 and a design value of 6.1 ppm. Table 2 
shows no violations of the CO NAAQS at the Incline Village monitor for 
the years 2000 and 2001 and a design value of 1.6 ppm. Additionally, 
based on data retrieved from AQS, there have been no exceedances of the 
CO standard from 2002 to the present.

  Table 1.--CO Design Value for the Lake Tahoe Nevada Area for 2001 and
 2002 From Data Collected at Stateline Monitor at Harvey's Resort Hotel
------------------------------------------------------------------------
                                                               Federal
                Year                   1st High   2nd High   exceedances
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2001................................        3.7        3.6             0
2002................................        8.8        6.1             0
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  Table 2.--CO Design Value for the Lake Tahoe Nevada Area for 2000 and
               2001 From Data Collected at Incline Village
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                                                               Federal
                Year                   1st High   2nd High   exceedances
------------------------------------------------------------------------
2000................................        1.1        1.0             0
2001................................        1.8        1.6             0
------------------------------------------------------------------------

    Because the area has complete quality assured data showing no 
exceedance of the standard over at least two consecutive years (2001 
and 2002), and has not violated the standard since that time, the area 
has met the first statutory criterion for designating a nonattainment 
area to attainment.

B. The Area Must Have Met All Applicable Requirements Under Section 110 
and Part D

    Section 107(d)(3)(E)(v) requires that an area must meet all 
applicable requirements under section 110 and part D of the CAA. EPA 
interprets this requirement to mean the State must meet all 
requirements that applied to the area prior to, or at the time of, the 
submission of a complete redesignation request.
1. Section 110 Requirements
    Section 110(a)(2) of the Act contains the general requirements for 
State Implementation Plans (SIPs) (i.e., enforceable emission limits, 
ambient monitoring, permitting of new sources, adequate funding, etc.) 
Over the years we have approved Nevada's SIP as meeting the basic 
requirements of CAA section 110(a)(2).
2. Part D Requirements
    Part D (of title I of the Act) contains general provisions that 
apply to all nonattainment plans and certain sections that apply to 
specific pollutants. Before the Lake Tahoe

[[Page 69613]]

Nevada ``not classified'' CO nonattainment area may be redesignated to 
attainment, the State must have fulfilled the applicable requirements 
of part D of the Act.
    Under part D, an area's classification indicates the requirements 
to which it is subject. Subpart 1 to part D sets forth the basic 
nonattainment requirements applicable to all nonattainment areas, 
classified as well as not classified. However, the Act did not specify 
how the requirements of subpart 1 of part D (specifically, those under 
section 172(c) of the Act) apply to ``not classified'' nonattainment 
areas for CO. EPA has interpreted the requirements for those areas in 
the General Preamble to Title I of the Clean Air Act Amendments of 
1990. See 57 FR 13498 at 13535 (April 16, 1992). According to this 
guidance, requirements for Lake Tahoe Nevada as a ``not classified'' 
nonattainment area for CO include the preparation and submittal of an 
emissions inventory as a SIP revision, adoption of New Source Review 
(NSR) programs meeting the requirements of section 173 as amended, and 
programs meeting the applicable monitoring requirements of section 110. 
The General Preamble also states that certain reasonably available 
control measures (RACM) beyond what may already be required in the SIP, 
reasonable further progress (RFP) and attainment demonstration 
requirements are not applicable to ``not classified'' CO nonattainment 
areas. See 57 FR 13498 at 13535 (April 16, 1992). Also, we interpret 
subpart 3 of part D, which contains specific requirements for moderate 
and above CO nonattainment areas, to be inapplicable to ``not 
classified'' CO nonattainment areas. See 57 FR 13498 at 13535 (April 
16, 1992).
    The remaining applicable requirements of section 172 are discussed 
below.
(a) Section 172(c)(3)--Emissions Inventory
    Section 172(c)(3) of the CAA requires a comprehensive, accurate, 
current inventory of all actual emissions from all sources. Nevada 
included a CO emission inventory for the Lake Tahoe Nevada area in the 
submitted maintenance plan for calendar year 2001. This year 
corresponds to the year used in calculating the design value contained 
in the SIP and represents emissions that contributed to the design 
value in the plan. The design value shows that the area attains the CO 
standard. Therefore, the emissions are at a level that would maintain 
the standard.
    The emissions inventory prepared by NDEP for the redesignation 
request and maintenance plan estimates actual emissions during the peak 
CO season (specifically, the month of January) from mobile sources, 
including on-road and non-road vehicles. Stationary and area sources 
were not included in the inventory but are considered de minimis 
considering the lack of industrial activity in the area and the small 
residential population. Consistent with EPA guidance, NDEP used EPA's 
MOBILE6 on-road motor vehicle emissions factor model and the most 
recent planning assumptions for the transportation network, including 
vehicle miles traveled and vehicle speed, to estimate emissions from 
on-road sources. NDEP used EPA's emissions model, NONROAD, for nonroad 
sources. NDEP has provided sufficient documentation for these emissions 
estimates in appendices A and B of the redesignation request and 
maintenance plan.
    We believe the inventory is comprehensive, accurate and current and 
meets the requirements of section 172(c)(3) of the CAA.
(b) Section 172(c)(5)--New Source Review (NSR)
    The Federal requirements for new source review (NSR) in 
nonattainment areas are contained in section 172(c)(5). Consistent with 
EPA guidance,\3\ EPA is not requiring as a prerequisite to 
redesignation to attainment EPA's full approval of a part D NSR program 
by Nevada for the Lake Tahoe Nevada area. Under this guidance, 
nonattainment areas may be redesignated to attainment notwithstanding 
the lack of a fully-approved part D NSR program, so long as the program 
is not relied upon for maintenance. There are no major stationary 
sources in the Lake Tahoe Nevada area nor is the predominant basis for 
the economy (recreation and tourism) expected to change over the 
foreseeable future. Therefore, the area will not need a part D NSR 
program for CO sources to maintain the CO NAAQS.
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    \3\ Memorandum from Mary D. Nichols entitled ``Part D New Source 
Review (Part D NSR) Requirements for Areas Requesting Redesignation 
to Attainment,'' October 14, 1994.
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    EPA guidance indicates that the requirements of a part D NSR 
program will be replaced by the prevention of significant deterioration 
(PSD) program when an area has reached attainment and been 
redesignated, provided there are assurances that PSD will become fully 
effective immediately upon redesignation. As explained below, the 
Federal PSD regulation will become fully effective in the Lake Tahoe 
Nevada area immediately upon redesignation.
    In the Lake Tahoe Nevada area, NDEP administers the stationary 
source permitting program in the Carson City and Douglas counties 
portion of the area, and the Washoe County Health Department (WCDHD) 
administers the stationary source permitting program in the Washoe 
County portion of the area. We delegated PSD permitting authority to 
NDEP on May 27, 1983 and to WCDHD on April 5, 1985. NDEP and WCDHD 
administered the Federal PSD program in their respective jurisdictions 
under delegation agreements with EPA until March 3, 2003. On that date, 
EPA withdrew delegations of authority to issue Federal PSD permits from 
these two agencies as well as many other State and local air pollution 
control agencies in response to significant changes in the Federal PSD 
regulations published on December 31, 2002 (67 FR 80186) and the 
necessity for them to adopt conforming revisions in state and local 
laws and regulations. See 68 FR 19371 (April 21, 2003). However, EPA 
has taken action recently to implement a partial delegation of 
authority for PSD back to NDEP (see 68 FR 52837, September 8, 2003) and 
anticipates doing the same for WCDHD in the near future. Because the 
Lake Tahoe Nevada area is being redesignated to attainment by this 
action, the Federal PSD regulations, as administered by EPA and/or NDEP 
and WCDHD, will be applicable to any new or modified major sources of 
CO in the area.
(c) Section 172(c)(7)--Compliance With CAA Section 110(a)(2): Air 
Quality Monitoring Requirements
    EPA interprets section 172(c)(7) to require ``not classified'' CO 
nonattainment areas to meet the ``applicable'' air quality monitoring 
requirements of section 110(a)(2) of the CAA. See 57 FR 14498 at 13535 
(April 16, 1992).
    The State of Nevada currently operates one SLAMS monitor for the 8 
hour CO NAAQS at the southern edge of Lake Tahoe at Stateline, Nevada. 
That monitor was located at the Horizon Casino Resort in Stateline for 
the years 1989 through June 1999 when it was moved to a site at 
Harvey's Resort Hotel also in Stateline. The State also operated a 
monitor at Incline Village but that site was shut down in March, 2002 
because the values it recorded were very low.
    The State of Nevada operates a monitoring network (including the CO 
monitoring station at Stateline but also including numerous other 
monitoring stations located outside the Lake Tahoe Nevada area) in 
accordance with 40 CFR part 58. The State has committed to continue to 
maintain that network.

[[Page 69614]]

    The requirements of section 172(c)(7) are met.

C. The Area Must Have a Fully Approved SIP Under Section 110(k) of the 
CAA

    Section 107(d)(3)(E)(ii) requires that EPA determine that the area 
has a fully approved SIP under section 110(k) of the Act. As described 
below, we have concluded that the Lake Tahoe Nevada area has a fully 
approved SIP.
    On April 30, 1971 (36 FR 8186), pursuant to section 109 of the 
Clean Air Act, as amended in 1970, EPA promulgated NAAQS for various 
pollutants, including CO. Within 9 months thereafter, each State was 
required by section 110 of the Act to adopt and submit to EPA a plan 
which provides for the implementation, maintenance, and enforcement of 
the NAAQS within each State. Nevada's original SIP was submitted on 
January 28, 1972. EPA approved this original SIP submittal later that 
year. See 37 FR 10842 (May 31, 1972).
    Generally, SIPs were to provide for attainment of the NAAQS within 
3 years after EPA approval of the plan. However, many areas of the 
country did not attain the NAAQS within the statutory period. In 
response, Congress amended the Act in 1977 to establish a new approach, 
based on area designations, for attaining the NAAQS, and on March 3, 
1978 (43 FR 8962), under paragraph 107(d)(2) of the Act, EPA 
promulgated attainment status designations for all States. EPA 
designated the Lake Tahoe Nevada area nonattainment for CO at that 
time.
    The Act, as amended in 1977, required States to revise their SIPs 
by January 1979 for all designated nonattainment areas. In response, on 
July 24, 1979, the State of Nevada submitted the Lake Tahoe Basin 
Nonattainment Area Plan (``1979 NAP'') to EPA as a revision to the SIP. 
The 1979 NAP was intended to meet the requirements of part D (plan 
requirements for nonattainment areas) of the Act, as amended in 1977. 
The 1979 NAP identified a number of measures for adoption, including a 
motor vehicle inspection and maintenance program, traffic flow 
improvements, driver advisories, and bike and pedestrian facilities.
    In 1980, EPA proposed to fully approve some elements of the 1979 
NAP into the Nevada SIP, such as the emissions inventories and the 
demonstration of reasonable further progress (RFP), but to 
conditionally approve other elements of the plan, such as the modeling, 
emission reduction estimates, attainment provision, and legally adopted 
measures. See 45 FR 59591 (September 10, 1980). In 1982, EPA took final 
action consistent with the 1980 proposal. See 47 FR 27065 (June 23, 
1982). EPA's 1982 action is codified at 40 CFR 52.1470(c)(16)(vii).
    On December 9, 1982, December 16, 1982, January 28, 1983, and May 
5, 1983, NDEP submitted various supplemental materials intended to 
satisfy the conditions placed on the approval of the 1979 NAP. Based on 
those four submittals, EPA proposed to revoke the earlier conditions 
and to approve these four submittals as revisions to the Nevada SIP. 
See 48 FR 52093 (November 16, 1983). In 1984, we took final action 
consistent with this proposal. See 49 FR 6897 (February 24, 1984). 
EPA's 1984 action is codified at 40 CFR 52.1470(c)(27); 40 CFR 
52.1470(c)(28), 40 CFR 52.1470(c)(29), and 40 CFR 52.1470(c)(30).
    Therefore, based on the approval into the SIP of provisions under 
the Act as amended prior to 1990, our approval described below of a 
maintenance plan submitted under the Act as amended in 1990, and our 
approval of the State's commitment to maintain an adequate monitoring 
network, EPA has determined that, at the date of this action, Nevada 
has a fully approved SIP under section 110(k) for the Lake Tahoe Nevada 
nonattainment area.

D. The Area Must Show the Improvement in Air Quality Is Due to 
Permanent and Enforceable Emissions Reductions

    Section 107(d)(3)(E)(iii) requires that EPA determine that the 
improvement in air quality is due to permanent and enforceable 
reductions in emissions resulting from implementation of the applicable 
implementation plan and applicable Federal air pollution control 
regulations and other permanent and enforceable reductions. As 
described below, we have concluded that the improvement in CO levels in 
the Lake Tahoe Nevada area is due to permanent and enforceable 
reductions in CO emissions.
    The improvement in air quality in the Lake Tahoe Nevada area is due 
to implementation of measures contained in the 1979 NAP and to 
implementation of the Federal Motor Vehicle Control Program. The two 
control measures that comprised the attainment strategy for the Lake 
Tahoe Nevada area in the 1979 NAP included traffic flow improvements 
and improved pedestrian facilities, and in removing the conditions 
placed on our 1982 approval of the 1979 NAP, we determined that these 
two measures had been fully implemented. See the related proposed rule, 
48 FR 52093 (November 16, 1983) and final rule, 49 FR 6897 (February 
24, 1984).
    The Federal Motor Vehicle Control Program (40 CFR part 86) has 
contributed to improved air quality through the gradual, continued 
turnover and replacement of older vehicle models with newer models 
manufactured to meet increasingly stringent Federal tailpipe emissions 
standards. In addition, the motor vehicle emission control program 
enacted by California benefits Nevada as well since the two states 
converge in the Lake Tahoe Basin. With these measures and programs, we 
have concluded that actual enforceable emission reductions are 
responsible for the air quality improvement and that the CO 
concentrations in the base year (used to document attainment) are not 
artificially low due to local economic downturn.

E. The Area Must Have a Fully Approved Maintenance Plan Under CAA 
Section 175A

    Section 107(d)(3)(E)(iv) requires that EPA fully approve a 
maintenance plan for the area as meeting the requirements of section 
175A of the Act as a prerequisite to redesignation. As described below, 
we are approving the maintenance plan for the Lake Tahoe Nevada area in 
this action.
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
We have interpreted this section of the Act to require, in general, the 
following core provisions in maintenance plans: attainment inventory, 
maintenance demonstration, monitoring network, verification of 
continued attainment, and contingency plan. See Calcagni Memorandum, 
September 4, 1992. The purpose of a maintenance plan is to provide for 
the maintenance of the applicable NAAQS for at least 10 years after 
redesignation.
    For areas such as Lake Tahoe Nevada that are utilizing EPA's 
limited maintenance plan approach, as detailed in the EPA guidance 
memorandum, ``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, Group Leader, Integrated 
Policy and Strategies Group, Office of Air Quality and Planning 
Standards (OAQPS), dated October 6, 1995 (``Paisie Memorandum''), the 
maintenance demonstration is considered to be satisfied for ``not 
classified'' areas if the monitoring data show the design value is at 
or below 7.65 ppm, or 85 percent of the level of the 8-hour CO NAAQS.

[[Page 69615]]

The design value must be based on the 8 consecutive quarters of data. 
For such areas, there is no requirement to project emissions of air 
quality over the maintenance period. EPA believes if the area begins 
the maintenance period at, or below, 85% of the CO 8 hour NAAQS, the 
applicability of PSD requirements, the control measures already in the 
SIP, and Federal measures, should provide adequate assurance of 
maintenance over the initial 10-year maintenance period. In addition, 
the design value for the area must continue to be at or below 7.65 ppm 
until the time of final EPA action on the redesignation. The method for 
calculating the design value is presented in the June 18, 1990, EPA 
guidance memorandum entitled ``Ozone and Carbon Monoxide Design Value 
Calculations'', from William G. Laxton, Director of the OAQPS Technical 
Support Division, to Regional Air Directors.
    Eight years after the redesignation, the State must submit a 
revised maintenance plan which demonstrates continued maintenance of 
the CO NAAQS for an additional 10 years following the initial ten-year 
maintenance period. To address the possibility of future NAAQS 
violations, the maintenance plan must contain contingency measures, 
with a schedule for implementation adequate to assure prompt correction 
of any air quality problems. The Lake Tahoe Nevada redesignation 
request and maintenance plan addressed these core provisions, and our 
evaluation of these provisions follows:
1. Emissions Inventory--Attainment Year
    The plan must contain an attainment year emissions inventory to 
identify a level of emissions in the area which is sufficient to attain 
the CO NAAQS. This inventory is to be consistent with EPA's most recent 
guidance on emissions inventories for nonattainment areas available at 
the time and should represent emissions during the time period 
associated with the monitoring data showing attainment.
    As discussed above in connection with section 172(c)(3), the Lake 
Tahoe Nevada redesignation request and maintenance plan contains an 
accurate, current, and comprehensive emission inventory for calendar 
year 2001.
2. Demonstration of Maintenance
    As described in the Paisie Memorandum, the maintenance 
demonstration requirement is considered to be satisfied for ``not 
classified'' CO areas if the design value for the area is equal to, or 
less than 7.65 ppm. The CO design value for the Lake Tahoe Nevada is 
6.1 ppm.
    As assurance of maintenance, the NDEP, in an addendum to their SIP 
submittal letter dated October 27, 2003 has provided projections of CO 
emissions in tons per day (tpd) from on-road mobile sources for the 
years 2006, 2011 and 2016 during the peak annual CO season for each 
forecast year, compared to the baseline year of 2001, as shown in the 
following table.

Table 3.--Projected CO Emissions From On-Road Mobile Sources Compared to
                         2001 Baseline Inventory
                                  [tpd]
------------------------------------------------------------------------
  Baseline  year
       2001         Projected  2006    Projected  2011   Projected  2016
------------------------------------------------------------------------
        17.72              13.00              11.41             10.25
------------------------------------------------------------------------

    The projections were calculated using EPA model MOBILE6.0, and 
separate emission factors for the two roadway facility types present in 
the Lake Tahoe Basin, arterial collector roads and local roads, which 
is the same approach that was used in calculating the 2001 base year 
inventory. The emission factors were then multiplied by future VMT 
estimates for both the arterial/collector and local roadway facilities. 
Based on these projections, CO emissions from on-road mobile sources 
show a marked decline from 2001 to 2016 and consequently we find that 
the NDEP has presented adequate evidence that the Lake Tahoe Nevada 
area will continue to maintain the CO NAAQS during the maintenance 
period.
3. Monitoring Network and Verification of Continued Attainment
    Continued ambient monitoring of an area is required over the 
maintenance period. In the maintenance plan (see page 15 of the 
maintenance plan), NDEP indicates its intention to continue to operate 
an air quality monitoring network consistent with 40 CFR 58 and to 
maintain operation of the current CO monitor at Stateline, located at 
Harvey's Resort Hotel on Highway 50. NDEP also intends to continue to 
download monitoring data to EPA's AQS database.
4. Contingency Plan
    Section 175A(d) of the Act requires that a maintenance plan include 
contingency provisions, as necessary, to promptly correct any violation 
of the NAAQS that occurs after redesignation of the area. Under section 
175A(d), contingency measures do not have to be fully adopted at the 
time of redesignation. However, the contingency plan is considered to 
be an enforceable part of the SIP and should ensure that the 
contingency measures are adopted expeditiously once they are triggered 
by a specified event.
    The redesignation request and maintenance plan includes a 
contingency plan. The contingency plan implementation process for the 
Lake Tahoe Nevada area takes into consideration the fact that while 
jurisdiction over the Lake Tahoe Basin is divided between California 
and Nevada, the air quality on one side of the Lake tends to parallel 
the air quality on the other side. However, the implementation of the 
control measures for each side of the Basin is the responsibility of 
either California or Nevada, whichever is relevant.
    The Lake Tahoe Nevada contingency plan therefore has several 
phases. First, the contingency plan provides for a triggering mechanism 
through which NDEP will determine when a pre-violation action level is 
reached. Second, the contingency plan spells out the procedures that 
will be followed if the pre-violation action level is reached, 
including recommendations for action, and third, the contingency plan 
contains commitments from NDEP and the local jurisdictions in the Lake 
Tahoe Nevada \4\ area to implement expeditiously any and all measures 
necessary to achieve

[[Page 69616]]

the level of CO emissions reductions needed to maintain the CO NAAQS.
---------------------------------------------------------------------------

    \4\ The following local jurisdictions have passed resolutions 
promising to adhere to the provisions of the contingency plan in the 
2003 Lake Tahoe Nevada Limited Maintenance Plan: the Tahoe 
Metropolitan Planning Organization, the Washoe County District 
Health Department and the State of Nevada Department of 
Transportation, which is a participant in the Interagency 
Consultation Procedures established by the Tahoe Metropolitan 
Planning Organization. See appendix C of the maintenance plan.
---------------------------------------------------------------------------

    The NDEP has selected two verified 8-hour average concentrations in 
excess of 85% of the CO NAAQS at any one monitor site in the Lake Tahoe 
Basin in any CO season (November through February) as the pre-violation 
action level.
    The procedures for addressing a pre-violation action level are bi-
state and multi-jurisdictional in nature. If the pre-violation action 
level is reached at any one monitor in the entire Lake Tahoe Basin 
(i.e., including monitors located in California as well as the monitor 
at Stateline, Nevada) during the CO season, NDEP will notify the Tahoe 
Regional Planning Area (TRPA) which will in turn activate the 
Conformity Task Force, which consists of all of the air quality 
planning agencies in the Basin, regional planning agencies, state 
Departments of Transportation (DOTs) and federal agencies.
    Under the direction of this Task Force, NDEP will analyze historic 
and current monitoring data from the Stateline site and California's 
Sandy Way site in South Lake Tahoe and will conduct studies to 
determine whether the event is confined to a local hot spot or if it is 
an area wide phenomenon. The Task Force will review the most recent 
microscale modeling at known hot-spot locations and conduct field 
studies at hot spot locations most likely to have high CO 
concentrations. If it is determined that the event is confined to a 
local hot spot and local transportation system improvements at that 
location can be implemented promptly and will fully mitigate the 
problem, the Task Force will recommend that action to the appropriate 
jurisdiction. If the problem is area wide, the Task Force will examine, 
prioritize and recommend general control measures, such as cleaner 
burning fuel, employer-based trip reduction, non-work trip reduction, 
parking supply and pricing management, high occupancy vehicle system or 
transit improvements.
    The implementation of the recommended contingency measures for the 
Lake Tahoe Nevada area will be the responsibility of the NDEP and/or 
the appropriate local jurisdiction. Both in the transmittal letter 
(dated October 27, 2003) and in the plan itself, the NDEP has committed 
to track CO concentrations and to adopt, submit as a SIP revision, and 
implement expeditiously any and all measures to achieve the level of CO 
emissions reductions needed to maintain the CO NAAQS in the event of an 
exceedance of the CO NAAQS. In addition, NDEP has committed to work 
with the involved jurisdictions to ensure that sufficient measures are 
adopted and implemented in a timely fashion to cure the violation.
    EPA finds that the contingency plan provided in the maintenance 
plan is adequate to ensure prompt correction of a violation and thereby 
complies with section 175A(d) of the Act.

IV. Conformity

A. How Is Transportation Conformity Demonstrated to a Limited 
Maintenance Plan?

    Section 176(c) of the Act defines transportation conformity as 
conformity to the SIP's purpose of eliminating or reducing the severity 
and number of violations of the NAAQS and achieving expeditious 
attainment of such standards. The Act further defines transportation 
conformity to mean that no Federal transportation activity will: (1) 
Cause or contribute to any new violation of any standard in any area, 
(2) increase the frequency or severity of any existing violation of any 
standard in any area, or (3) delay timely attainment of any standard or 
any required interim emission reductions or other milestones in any 
area.
    The Federal Transportation Conformity Rule, 40 CFR part 93 subpart 
A, sets forth the criteria and procedures for demonstrating and 
assuring conformity of transportation plans, programs and projects 
which are developed, funded or approved by the U.S. Department of 
Transportation, and by metropolitan planning organizations or other 
recipients of funds under title 23 U.S.C. or the Federal Transit Laws 
(49 U.S.C. Chapter 53). The transportation conformity rule applies 
within all nonattainment and maintenance areas. As prescribed by the 
transportation conformity rule, once an area has an applicable state 
implementation plan with motor vehicle emissions budgets, the expected 
emissions from planned transportation activities must be consistent 
with (``conform to'') such established budgets for that area.
    In the case of the Lake Tahoe Nevada CO limited maintenance plan, 
however, the emissions budgets may be treated as essentially not 
constraining for the length of the initial maintenance period because 
there is no reason to expect that Lake Tahoe Nevada will experience so 
much growth in that period that a violation of the CO air quality 
standard would result. In other words, emissions from on-road 
transportation sources need not be capped for the maintenance period 
because it is unreasonable to believe that emissions from such sources 
would increase to a level that would threaten the air quality in this 
area for the duration of this maintenance period. Therefore, for the 
Lake Tahoe Nevada CO maintenance area all federally funded and approved 
transportation actions that require conformity determinations under the 
transportation conformity rule can already be considered to satisfy the 
regional emissions analysis and ``budget test'' requirements in 40 CFR 
93.118 of the rule.
    However, since Lake Tahoe Nevada is still a maintenance area, 
transportation conformity determinations are still required for 
transportation plans, programs and projects. Specifically, for such 
determinations, transportation plans, transportation improvement 
programs, and projects must still demonstrate that they are fiscally 
constrained (40 CFR part 108) and must meet the criteria for 
consultation and Transportation Control Measure (TCM) implementation in 
the conformity rule (40 CFR 93.112 and 40 CFR 93.113, respectively). In 
addition, projects in Lake Tahoe Nevada area will still be required to 
meet the criteria for CO hot spot analyses (40 CFR 93.116 and 40 CFR 
93.123) that must incorporate the latest planning assumptions and 
models that are available.

B. What Is the Adequacy Status of This Limited Maintenance Plan?

    On March 2, 1999, the United States Court of Appeals for the 
District of Columbia Circuit issued a decision on EPA's third set of 
transportation conformity revisions in response to a case brought by 
the Environmental Defense Fund. This decision stated that a conformity 
determination cannot be made using a submitted motor vehicle emission 
budget until EPA makes a positive determination that the submitted 
budget is adequate. In response to the court's decision, EPA issued 
guidance on our adequacy process on May 14, 1999.
    In accordance with our guidance and the court decision, the Lake 
Tahoe Nevada maintenance plan was posted for adequacy review of the 
motor vehicle emissions budget on November 10, 2003 on EPA's conformity 
Web site: http://www.epa.gov/otaq/traq, (once there, click on the 
``Conformity'' button, then look for ``Adequacy Review of SIP 
Submissions for Conformity''). As a general rule, however, limited 
maintenance plans, such as the Lake Tahoe Nevada maintenance plan, do 
not include budgets. Instead, for those areas that qualify under our 
limited maintenance plan policy for CO, we have concluded that the area 
will

[[Page 69617]]

continue to maintain the CO NAAQS regardless of the quantity of 
emissions from the on-road transportation sector, and thus there is no 
need to cap emissions from the on-road transportation sector for the 
maintenance period.
    Therefore, EPA's adequacy review of the Lake Tahoe Nevada 
maintenance plan primarily focuses on whether the area qualifies for 
the applicable limited maintenance plan policy for CO. From our review, 
EPA has concluded that Lake Tahoe Nevada does meet the criteria for a 
limited maintenance plan, and therefore, finds the Lake Tahoe Nevada 
maintenance plan adequate for conformity purposes under our limited 
maintenance plan policy.

C. Are the Requirements for General Conformity Altered Under This 
Limited Maintenance Plan?

    No. Although the requirements to perform a regional emissions 
analysis and budget test under the transportation conformity rule are 
altered under a limited maintenance plan, the requirements for general 
conformity are not changed. Upon today's approval of the Lake Tahoe 
Nevada limited maintenance plan, the criteria and procedures set forth 
in 40 CFR part 93, subpart B (Determining Conformity of General Federal 
Actions to State or Federal Implementation Plans) for those federal 
actions that are not covered under the transportation conformity rule 
still apply.

V. Final Action

    Under section 110(k)(3) of the Clean Air Act, EPA is approving the 
Lake Tahoe Nevada CO maintenance plan, and under section 107(d)(3)(E) 
of the Clean Air Act, EPA is redesignating the Lake Tahoe Nevada area 
to attainment for the CO NAAQS. As a result, the chart in 40 CFR 81.329 
entitled ``Nevada--Carbon Monoxide'' is being modified to change the 
designation for the Lake Tahoe Nevada area from ``Nonattainment'' to 
``Attainment,'' and to delete the ``Not Classified'' classification of 
the area, effective February 13, 2004. EPA is also determining that the 
maintenance plan is adequate for conformity purposes under the limited 
maintenance plan policy for CO.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial revision and anticipates no 
adverse comments. However, in the ``Proposed Rules'' section of today's 
Federal Register, we are publishing a separate document that will serve 
as the proposal to approve the SIP revision should adverse comments be 
filed. This rule will be effective February 13, 2004 without further 
notice unless the Agency receives adverse comments by January 14, 2004.
    If EPA receives such comments, then we will publish a timely 
withdrawal of the direct final rule in the Federal Register 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. The EPA will not institute a second comment period on 
this rule. Any parties interested in commenting on this rule should do 
so at this time. Please note that if EPA receives adverse comment on an 
amendment, paragraph or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.

VI. Administrative Requirements

    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 (Public Law 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. 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. 
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 February 13, 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

[[Page 69618]]

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

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental regulations, Reporting 
and recordkeeping requirements.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: November 20, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations 
are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart DD--Nevada

0
2. Section 52.1470 is amended by adding paragraph (c)(45) to read as 
follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (45) The following plan was submitted on October 27, 2003, by the 
Governor's designee.
    (i) Incorporation by reference.
    A. Carbon Monoxide Redesignation Request and Limited Maintenance 
Plan for the Nevada Side of the Lake Tahoe Basin, dated October 2003, 
adopted by the State Environmental Commission on September 18, 2003.
    (1) Attainment year (2001) emissions inventory, monitoring network 
and verification of continued attainment, and contingency plan, 
including commitments to follow maintenance plan contingency procedures 
by the Nevada Division of Environmental Protection, the Tahoe 
Metropolitan Planning Organization, the Nevada Department of 
Transportation, and the Washoe County District Health Department.
    B. Letter of October 27, 2003, from the Nevada Division of 
Environmental Protection, transmitting the redesignation request and 
maintenance plan for the Lake Tahoe Nevada CO nonattainment area and 
including a State commitment to track CO concentrations and to adopt, 
submit as a SIP revision, and implement expeditiously any and all 
measures to achieve the level of CO emissions reductions needed to 
maintain the CO NAAQS in the event that an exceedance of the CO NAAQS 
is monitored, and to work with the involved jurisdictions to ensure 
that sufficient measures are adopted and implemented in a timely 
fashion to prevent a violation.
    C. Additional material--Addendum to the October 27, 2003 letter of 
transmittal of the redesignation request and maintenance plan: 
emissions projections for on-road motor vehicles through 2016.

0
Part 81 of chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

0
2. In Sec.  81.329 the carbon monoxide table is amended by revising the 
entry for the Lake Tahoe Nevada Area to read as follows:


Sec.  81.329  Nevada.

* * * * *

                                                                 Nevada--Carbon Monoxide
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Designation                                                 Classification
       Designated area        --------------------------------------------------------------------------------------------------------------------------
                                            Date \1\                           Type                       Date \1\                       Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lake Tahoe Nevada Area
    Hydrographic Area 90       February 13, 2004.................  Attainment
     Carson City County
     (part) Douglas County
     (part) Washoe County
     (part).
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.

* * * * *
[FR Doc. 03-30369 Filed 12-12-03; 8:45 am]
BILLING CODE 6560-50-P