[Federal Register Volume 73, Number 217 (Friday, November 7, 2008)]
[Rules and Regulations]
[Pages 66182-66184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26513]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0728; FRL-8729-1]


Approval and Promulgation of Implementation Plans; Revisions to 
the Nevada State Implementation Plan; Clark County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Under the Clean Air Act, EPA is taking direct final action to 
approve a revision to the Clark County portion of the Nevada State 
Implementation Plan (SIP). This revision consists of transportation 
conformity criteria and procedures related to interagency consultation 
and enforceability of certain transportation-related control measures 
and mitigation measures. The intended effect is to include the 
transportation conformity criteria and procedures in the applicable 
SIP.

DATES: This rule is effective on January 6, 2009, without further 
notice, unless EPA receives adverse comments by December 8, 2008. If we 
receive such comments, we will publish a timely withdrawal in the 
Federal Register to notify the public that this direct final rule will 
not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-0728, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Ginger Vagenas (AIR-2), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. The http://www.regulations.gov portal is 
an ``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, (415) 
972-3964, [email protected].

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

Table of Contents

I. Transportation Conformity
II. Background for This Action
III. State Submittal and EPA Evaluation
IV. Public Comment and Final Action
V. Statutory and Executive Order Reviews

I. Transportation Conformity

    Transportation conformity is required under section 176(c) of the 
Clean Air Act (CAA or Act) to ensure that federally supported highway, 
transit projects, and other activities are consistent with (``conform 
to'') the purpose of the SIP. Conformity applies to areas that are 
currently designated nonattainment, and to areas that have been 
redesignated to attainment after 1990 (maintenance areas) with plans 
developed under section 175A of the Act, for the following 
transportation related criteria pollutants: Ozone, particulate matter 
(PM2.5 and PM10), carbon monoxide (CO), and 
nitrogen dioxide (NO2).
    Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the relevant national ambient 
air quality standards

[[Page 66183]]

(NAAQS). The transportation conformity regulation is found in 40 CFR 
part 93 and provisions related to conformity SIPs are found in 40 CFR 
51.390.

II. Background for This Action

    EPA promulgated the Federal transportation conformity criteria and 
procedures (the conformity rule) on November 24, 1993. See 58 FR 62188. 
Among other things, the rule required states to address all provisions 
of the conformity rule in their SIPs (``conformity SIPs''). Under 40 
CFR 51.390, most sections of the conformity rule were required to be 
copied verbatim. States were also required to tailor all or portions of 
the following three sections of the conformity rule to meet their 
state's individual circumstances: 40 CFR 93.105, which addresses 
consultation procedures; 40 CFR 93.122(a)(4)(ii), which addresses 
written commitments to control measures that are not included in a 
metropolitan planning organization's (MPO's) transportation plan and 
transportation improvement program that must be obtained prior to a 
conformity determination, and the requirement that such commitments, 
when they exist, must be fulfilled; and 40 CFR 93.125(c), which 
addresses written commitments to mitigation measures that must be 
obtained prior to a project-level conformity determination, and the 
requirement that project sponsors must comply with such commitments, 
when they exist.
    On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised section 176(c) of the Clean Air Act's 
transportation conformity provisions. One of the changes streamlines 
the requirements for conformity SIPs. Under SAFETEA-LU, states are 
required to address and tailor only three sections of the conformity 
rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii), 
and, 40 CFR 93.125(c), described above. In general, states are no 
longer required to submit conformity SIP revisions that address the 
other sections of the conformity rule. These changes took effect on 
August 10, 2005, when SAFETEA-LU was signed into law.

III. State Submittal and EPA Evaluation

    EPA has designated portions of Clark County, Nevada, as 
nonattainment for the carbon monoxide, 8-hour ozone, and respirable 
particulate matter (PM10) national ambient air quality 
standards (NAAQS). See 40 CFR 81.329. Thus, a ``conformity SIP'' for 
the portions of Clark County so designated must be prepared, adopted, 
and submitted to EPA to comply with the CAA, as amended by SAFETEA-LU.
    In response to these requirements, on April 1, 2008, the Nevada 
Division of Environmental Protection (NDEP) submitted the Clark County 
Transportation Conformity Plan (TCP) to EPA for approval as a revision 
to the Clark County portion of the Nevada SIP. The Clark County Board 
of County Commissioners adopted the Clark County TCP on January 15, 
2008. Appendix A of the Clark County TCP documents public notice and 
hearing for this SIP revision in compliance with CAA section 110(l) and 
40 CFR 51.102. On July 3, 2008, this submittal was found to meet the 
completeness criteria in 40 CFR Part 51 Appendix V, which must be met 
before formal EPA review. There is no previous version of the Clark 
County TCP in the SIP.
    Upon EPA approval, the Federal transportation conformity 
regulations will apply, except for those sections addressed by the 
current submittal, i.e., the requirements under 40 CFR 93.122(a)(4)(ii) 
and 93.125(c) for enforceability of control measures and mitigation 
measures, and under 40 CFR 93.105 for interagency consultation.
    We have reviewed the Clark County TCP to assure consistency with 
the Clean Air Act as amended by SAFETEA-LU and EPA regulations (40 CFR 
part 93 and 40 CFR 51.390) governing state procedures for 
transportation conformity and interagency consultation and have 
concluded that the plan is approvable. Details of our review are set 
forth in a technical support document (TSD), which has been included in 
the docket for this action. Specifically, in our TSD, we identify how 
the submitted procedures satisfy our requirements under 40 CFR 93.105 
for interagency consultation with respect to the development of 
transportation plans and programs, SIPs, and conformity determinations, 
the resolution of conflicts, and the provision of adequate public 
consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 
93.125(c) for enforceability of control measures and mitigation 
measures. EPA approval of this SIP revision is consistent with Federal 
law and regulations, and will obviate the need for SIP revisions that 
would have otherwise been triggered by changes to the underlying 
Federal regulations.

IV. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, and for the reasons 
set forth above, EPA is fully approving the Clark County Transportation 
Conformity Plan, submitted on April 1, 2008, as a revision to the Clark 
County portion of the Nevada SIP. We do not think anyone will object to 
this approval, so we are finalizing it without proposing it in advance. 
However, in the Proposed Rules section of this Federal Register, we are 
simultaneously proposing approval of the same submitted plan. If we 
receive adverse comments by December 8, 2008, we will publish a timely 
withdrawal in the Federal Register to notify the public that the direct 
final approval will not take effect and we will address the comments in 
a subsequent final action based on the proposal. If we do not receive 
timely adverse comments, the direct final approval will be effective 
without further notice on January 6, 2009. This will incorporate the 
Clark County TCP into the federally enforceable SIP.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);

[[Page 66184]]

     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    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 action 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 January 6, 2009. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: September 24, 2008.
Wayne Nastri,
Regional Administrator, Region IX.

0
Chapter I, title 40 of the Code of Federal Regulations is 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 et seq.

Subpart DD--Nevada

0
2. Section 52.1470 is amended by adding paragraph (c)(72) to read as 
follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (c) * * *
    (72) The following plan revision was submitted on April 1, 2008, by 
the Governor's designee.
    (i) Incorporation by reference.
    (A) Clark County Department of Air Quality and Environmental 
Management.
    (1) Clark County Transportation Conformity Plan (January 2008), 
adopted by the Clark County Board of County Commissioners on January 
15, 2008.

 [FR Doc. E8-26513 Filed 11-6-08; 8:45 am]
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