[Federal Register Volume 70, Number 84 (Tuesday, May 3, 2005)]
[Rules and Regulations]
[Pages 22803-22805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8788]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[NV-FOA-126; FRL-7907-3]


Determination of Attainment for the Ozone and Carbon Monoxide 
National Ambient Air Quality Standards in Washoe County, NV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA has determined that the marginal one-hour ozone 
nonattainment area that includes all of Washoe County, Nevada has 
attained the 1-hour ozone National Ambient Air Quality Standard by the 
applicable attainment date (1993) and has continued to attain since 
that time. EPA has also determined that the moderate carbon monoxide 
nonattainment area that includes the Truckee Meadows area of Washoe 
County has attained the carbon monoxide National Ambient Air Quality 
Standard by the applicable attainment date (1995) and has continued to 
attain since that time. This determination of attainment does not 
redesignate the Washoe County area to attainment for the 1-hour ozone 
or the carbon monoxide standard. The Clean Air Act requires that, for 
an area to be redesignated, five criteria must be satisfied including 
the submittal of a maintenance plan as a State Implementation Plan 
revision. The intended effect of this action will be to relieve the 
State of Nevada of the obligation to submit revisions to the state 
implementation plan to address additional requirements under the Clean 
Air Act for the next higher nonattainment classifications for the 1-
hour ozone and carbon monoxide standards.

EFFECTIVE DATE: This finding is effective on June 2, 2005.

ADDRESSES: Copies of documents relevant to this action are available 
for public inspection during normal business hours at the Air Planning 
Office of the Air Division, Environmental Protection Agency, Region 9, 
75 Hawthorne Street, San Francisco, California, 94105-3901.

FOR FURTHER INFORMATION CONTACT: Eleanor Kaplan, Air Planning Office 
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 947-
4147 or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to U.S. EPA.

I. Background

    Under sections 179(c), 181(b)(2) and 186(b)(2) of the Clean Air Act 
(CAA or ``Act''), EPA has the responsibility for determining whether a 
nonattainment area has attained the 1-hour ozone and carbon monoxide 
(CO) national ambient air quality standards (NAAQS) by the applicable 
attainment dates. In this case, the EPA was required to make 
determinations concerning the Washoe County ozone nonattainment area 
and the Truckee Meadows CO nonattainment area. As a ``marginal'' 1-hour 
ozone nonattainment area, Washoe County was subject to a December 31, 
1993 attainment date, and as a ``moderate'' CO nonattainment area, the 
Truckee Meadows area was subject to a December 31, 1995 attainment 
date.
    On January 21, 2005 (70 FR 3170), we published a notice announcing 
a proposed finding that the Washoe County nonattainment area had 
attained the 1-hour ozone NAAQS by the applicable attainment date 
(December 31, 1993) and has continued to attain the 1-hour ozone 
standard since that time, and that the Truckee Meadows nonattainment 
area had attained the CO NAAQS by the applicable attainment date 
(December 31, 1995) and has continued to attain the CO standard since 
that time. A detailed discussion of EPA's proposal is contained in the 
January 21, 2005 proposed rule and will not be restated here. The 
reader is referred to the proposed rule for more details.

II. Public Comments and EPA Responses

    EPA received one comment letter during the 30-day comment period. 
This letter, dated February 22, 2005, was submitted on behalf of a 
coalition of groups including the North West Great Basin Association, 
Environmental Defense, Progressive Leadership Alliance of Nevada, 
Western Resource Advocates, and Clean Air Task Force. The comments 
center on the possible effects on air quality in Washoe County 
resulting from operation of a coal-fired power plant for which plans 
are being developed and that would be located within Washoe County near 
the Town of Gerlach. In response to a request from EPA for additional 
information regarding a reference made in the letter, the commenter 
submitted to us an excerpt from a report on a pre-construction 
monitoring site called Squaw Creek Valley located in the southeast 
corner of the proposed power plant site to collect on-site ambient air 
quality, meteorological and upper air data. The site was installed in 
mid-July 2004. Official data collection began in August 2004, and the 
excerpt submitted to us contained a summary of air quality data 
collected during the months of August through October 2004. The 
comments and EPA responses are as follows:

Comment 1

    Notwithstanding a finding of attainment, Washoe County remains 
designated ``nonattainment'' for the 1-hour ozone and CO NAAQS, and any 
new major sources of ozone and CO emissions must comply with all 
nonattainment requirements.

Response 1

    EPA agrees that a finding of attainment does not constitute a 
redesignation to ``attainment'' and that all new major sources or major 
modifications that are to be located in a nonattainment area and that 
receive permits to construct while the area remains designated as 
``nonattainment'' must comply with all applicable nonattainment ``new 
source review'' (NSR) requirements, including installation of control 
technology representing the lowest achievable emission rate (LAER) and 
offsets. However, we note that the proposed power plant outside of 
Gerlach would be constructed in an area that is designated as 
``unclassifiable/attainment'' for the CO NAAQS,\1\ and thus, with 
respect to CO emissions, would be subject to the NSR requirements that 
apply within such areas (i.e., the Prevention of Significant 
Deterioration, or PSD program), not those that apply to nonattainment 
areas. Also, because the power plant undoubtedly will not receive an 
authority to construct until after revocation of the 1-hour ozone NAAQS 
(i.e., June 15, 2005) and because Washoe County is designated as 
``unclassifiable/attainment'' for the 8-hour ozone NAAQS [see 69 FR 
23858, 23919-23920 (April 30, 2004)], which is replacing the 1-hour 
ozone NAAQS, the applicable permitting agency (in this case, the Nevada 
Division of Environmental Protection, or NDEP) will be applying PSD 
requirements to ozone precursor emissions from this proposed power

[[Page 22804]]

plant as well. The only nonattainment NSR requirements that would apply 
to this proposed facility would be those (if any) that remain in effect 
under the EPA-approved Nevada state implementation plan (SIP) upon 
revocation of the 1-hour ozone NAAQS.
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    \1\ The Town of Gerlach is approximately 75 miles north-
northeast of the northern boundary of the Truckee Meadows CO 
nonattainment area (i.e., hydrographic area 87).
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Comment 2

    Given the large size of the proposed coal-fired power plant, its 
numerous support operations (e.g., rail and truck import of coal, 
limestone, ammonia, etc.), and expected significant emissions of ozone 
precursors and carbon monoxide, it is premature for EPA to make a 
determination regarding attainment for ozone or carbon monoxide in 
Washoe County. Instead, EPA should postpone any such determination 
until after the project applicant submits emissions data and the 
Federal agencies can determine the impacts of these emissions on 
compliance with the ozone and carbon monoxide NAAQS.

Response 2

    Under sections 179(c), 181(b)(2) and 186(b)(2) of the Clean Air 
Act, EPA is responsible for making a determination (of whether an area 
has attained the applicable NAAQS by its attainment date) within six 
months of the attainment date. We are very late in making these 
determinations for Washoe County (1-hour ozone NAAQS) and Truckee 
Meadows (CO NAAQS), and thus, further postponement is not appropriate. 
However, we note that, if the State of Nevada seeks redesignation from 
``nonattainment'' to ``attainment,'' we will review the latest 
monitoring data to ensure that our finding of attainment remains valid 
for the purposes of section 107(d)(3)(E)(i) of the Act.
    With regard to the possible impacts of emissions from the proposed 
power plant, it is our understanding that the project proponent is 
still in the process of collecting the information necessary for 
submittal of a complete permit application to NDEP for the proposed 
power plant near Gerlach. Once a complete application for an authority 
to construct (ATC) is submitted, the applicable permitting agency 
(NDEP) will not issue the ATC unless it is satisfied that the applicant 
has demonstrated, as required under the PSD program, that the project 
would not cause or contribute to any NAAQS violation. See 40 CFR 
52.21(k)(1). We also note that any draft ATC for the proposed power 
plant will be subject to EPA and public review and comment under the 
applicable PSD regulations and delegation agreement between EPA and 
NDEP.

Comment 3

    The available monitoring data is not adequate. The finding of 
attainment is based on data from only three to six monitoring stations, 
which are clustered in urban areas. Ozone is formed downwind of the 
area where precursors are released. Precursors emitted in the Reno-
Sparks and Tahoe area, as well as in California could contribute to or 
cause exceedances of ozone standards in other areas not covered by the 
existing monitoring network. Recent monitoring data collected north of 
Gerlach, for example, shows high ozone concentrations.

Response 3

    We disagree that the monitoring network is insufficient for the 
purposes of determining whether Washoe County has attained the 1-hour 
ozone NAAQS. The monitoring stations are, as noted by the commenter, 
concentrated in the more urbanized portion of the county in and near 
Reno and Sparks, but we believe that the spatial distribution of the 
monitoring stations is sufficiently widespread to provide 
representative worst-case ozone concentration data for the county.
    In further support of our attainment finding, we note that, not 
only have no 1-hour ozone NAAQS violations been recorded at any of the 
monitoring stations in Washoe County since before 1991, but also the 1-
hour ozone design values \2\ at the various stations have been well 
below the NAAQS of 0.12 parts per million (ppm). For example, over the 
2001-2003 period, the highest design value among the six ozone 
monitoring stations located within Washoe County was 0.093 ppm 
(recorded at the 4th Street Sparks station). We also note that the 
design values at more distant monitoring stations (i.e., located 
outside of Washoe County) are also well below the 1-hour ozone NAAQS as 
shown in table 1, below.
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    \2\ The design value generally represents the fourth highest 
daily maximum (hourly) ozone concentration over a given three-year 
period at a given site. Design values provide one basis of 
comparison between different locations with respect to peak ozone 
exposure; as such, the design values are provided herein for 
informational purposes only. Under the CAA, findings of attainment 
of the 1-hour ozone NAAQS rely on the average number of exceedances 
per year, not design values. The design value is used under the CAA 
if an area is found to have missed its attainment deadline and must 
be reclassified.

 Table 1.--One-Hour Ozone Design Values at Station Monitors Near to, but
                  Outside of, Washoe County, 2001-2003
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            Summary of one hour ozone air quality  2001-2003
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                                                               One-hour
                                                                 ozone
     Monitoring site--approximate distance from Reno, NV        design
                                                                value,
                                                                  ppm
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Carson City, NV--25 miles south of Reno.....................       0.082
Cave Rock State Park, NV--35 miles southwest of Reno........       0.086
Quincy, CA--65 miles northwest of Reno......................       0.087
South Lake Tahoe, CA--45 miles southwest of Reno............       0.083 
------------------------------------------------------------------------
Source: EPA Air Quality System (AQS) Database.

    Lastly, we requested and received further information from the 
commenters regarding their statement ``Recent monitoring data collected 
north of Gerlach, for example, shows high ozone concentrations.'' The 
data referred to in that comment was collected at a monitoring station 
installed and operated outside of the Town of Gerlach by a contractor 
working for the power plant project proponent. A summary of air quality 
monitoring data for the months of August through October, 2004 was 
provided to us by the commenter, and it shows a maximum 8-hour ozone 
concentration of 115.6 micrograms per cubic meter (i.e., approximately 
0.06 ppm). This maximum 8-hour ozone concentration was measured during 
the month of August, and it represents approximately 74% of the 
corresponding 8-hour ozone NAAQS of 157 micrograms per cubic meter 
(0.08 ppm). While the ozone data collected in connection with the power 
plant project is incomplete (in that the data only cover three months 
of a single year), the data that is available does not show ozone 
concentrations that exceed or even approach the 8-hour ozone NAAQS and 
does not justify a change or deferral of our attainment finding for 
Washoe County with respect to the 1-hour ozone NAAQS nor does the data 
justify a re-evaluation of our designation of Washoe County as 
``unclassifiable/attainment'' for the 8-hour ozone NAAQS.

Comment 4

    EPA should review and incorporate the most recent monitoring data 
prior to issuing any final rule.

[[Page 22805]]

Response 4

    The proposed finding of attainment for 1-hour ozone and CO relied 
upon monitoring data through year 2003. In response to this comment, we 
have reviewed the latest available data (i.e., the data for year 2004) 
collected at the Washoe County monitors and input to AQS and have found 
no exceedances of either the 1-hour ozone or CO NAAQS. The highest 1-
hour ozone concentration measured in 2004 in Washoe County was 0.09 ppm 
(recorded at both the Reno State Street and Sparks Fourth Street 
stations) and the highest CO concentrations were 5.9 ppm, one-hour 
average, and 4.0 ppm, eight-hour average, as recorded at the Sparks 
Fourth Street station and Reno Galletti station, respectively. In 
contrast, the 1-hour ozone NAAQS is 0.12 ppm and the CO NAAQS are 35 
ppm, one-hour average, and 9 ppm, eight-hour average. Thus, the 2004 
data add further support to our finding of attainment for Washoe County 
(with respect to the 1-hour ozone NAAQS) and Truckee Meadows (with 
respect to the CO NAAQS).

III. Final Action

    No comments were submitted that change our assessment that the 1-
hour ozone NAAQS has been attained in Washoe County and that the CO 
NAAQS has been attained in the Truckee Meadows portion of Washoe 
County. Therefore, we are taking final action, pursuant to sections 
179(c), 181(b)(2) and 186(b)(2) of the Act, to determine that the 
Washoe County ``marginal'' nonattainment area has attained the NAAQS 
for 1-hour ozone by the applicable attainment date and has continued to 
attain the 1-hour ozone NAAQS since that time and, further, that the 
Truckee Meadows ``moderate'' nonattainment area has attained the NAAQS 
for CO by the applicable attainment date and has continued to attain 
the CO NAAQS since that time. These findings relieve the State of 
Nevada from the additional requirements under the Clean Air Act for the 
next higher nonattainment classifications for the 1-hour ozone and CO 
standards.
    It should be noted that this action does not redesignate these 
areas from ``nonattainment'' to ``attainment''. Under section 
107(d)(3)(E), the Clean Air Act requires that, for an area to be 
redesignated from nonattainment to attainment, five criteria must be 
satisfied including the submittal by the State (and approval by EPA) of 
a maintenance plan as a SIP revision. Therefore, the designations for 
Washoe County (for 1-hour ozone) and Truckee Meadows (for CO) in 40 CFR 
part 81 are unaffected by this action, and Washoe County will remain a 
``marginal'' nonattainment area for 1-hour ozone and ``moderate'' for 
CO until such time as EPA finds that the State of Nevada has met the 
Clean Air Act requirements for redesignation to attainment.

IV. 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 finds that an area has attained a national ambient air quality 
standard based on an objective review of measured air quality data. 
This action will not impose any new regulations, mandates, or 
additional enforceable duties on any public, nongovernmental, or 
private entity. 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 does not impose any additional enforceable 
duty, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely finds that an area has 
attained a national ambient air quality 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.
    This rule does not involve establishment of technical standards, 
and thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 5, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

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

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: April 20, 2005.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 05-8788 Filed 5-2-05; 8:45 am]
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