[Federal Register Volume 78, Number 5 (Tuesday, January 8, 2013)]
[Rules and Regulations]
[Pages 1149-1153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00057]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R09-OAR-2012-0792; FRL-9766-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Nevada;
Redesignation of Clark County to Attainment for the 1997 8-Hour Ozone
Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve, as a revision of the
Nevada state implementation plan, the State's plan for maintaining the
1997 8-hour ozone standard in Clark County for ten years beyond
redesignation, and the related motor vehicle emissions budgets, because
they meet the applicable requirements for such plans and budgets. EPA
is also taking final action to approve a request from the Nevada
Division of Environmental Protection to redesignate the Clark County
ozone nonattainment area to attainment for the 1997 8-hour ozone
National Ambient Air Quality Standard because the area meets the
statutory requirements for redesignation under the Clean Air Act.
DATES: Effective Date: This rule is effective on February 7, 2013.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R09-OAR-2012-0792. Generally, documents in the docket for
this action are available electronically at 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 at
www.regulations.gov, some information may be publicly available only at
the hard copy location (e.g., copyrighted material, large maps), and
some may not be publicly available in either location (e.g.,
confidential business information or ``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, Air Planning Office
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-
3964, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
Table of Contents
I. Summary of Proposed Action
A. Determination That the Area Has Attained the Applicable NAAQS
B. The Area Must Have a Fully Approved SIP Meeting Requirements
Applicable for Purposes of Redesignation Under Section 110 and Part
D
C. The Area Must Show the Improvement in Air Quality Is Due to
Permanent and Enforceable Emissions Reductions
D. The Area Must Have a Fully Approved Maintenance Plan Under
CAA Section 175A
II. Public Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On November 13, 2012 (77 FR 67600), we proposed to take several
related actions. First, under Clean Air Act (CAA or ``Act'') section
110(k)(3), EPA proposed to approve a submittal from the Nevada Division
of Environmental Protection (NDEP) dated April 11, 2011 of Clark
County's Ozone Redesignation Request and Maintenance Plan (March 2011)
(``Clark County Ozone Maintenance Plan'' or ``Ozone Maintenance Plan'')
as a revision to the Nevada state implementation plan (SIP).
In connection with the Clark County Ozone Maintenance Plan, EPA
proposed to find that the maintenance demonstration showing that the
area will continue to attain the 1997 8-hour ozone national ambient air
quality
[[Page 1150]]
standard (NAAQS or ``standard'') \1\ for 10 years beyond redesignation
(i.e., through 2022), and the contingency provisions describing the
actions that Clark County will take in the event of a future monitored
violation, meet all applicable requirements for maintenance plans and
related contingency provisions in CAA section 175A. EPA also proposed
to approve the motor vehicle emissions budgets (MVEBs) in the Clark
County Ozone Maintenance Plan because we found they met the applicable
transportation conformity requirements under 40 CFR 93.118(e).
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\1\ The 1997 8-hour ozone standard is 0.08 parts per million
(ppm) averaged over an 8-hour time frame.
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Second, under CAA section 107(d)(3)(D), EPA proposed to approve
NDEP's request that accompanied the submittal of the maintenance plan
to redesignate the Clark County 8-hour ozone nonattainment area \2\ to
attainment for the 1997 8-hour ozone NAAQS. We did so based on our
conclusion that the area has met the five criteria for redesignation
under CAA section 107(d)(3)(E). Our conclusion in this regard was based
on our determination that the area has attained the 1997 8-hour ozone
NAAQS, that relevant portions of the Nevada SIP are fully approved,
that the improvement in air quality is due to permanent and enforceable
reductions in emissions, that Nevada has met all requirements
applicable to the Clark County 8-hour ozone nonattainment area with
respect to section 110 and part D of the CAA, and based on our approval
as part of this action of the Clark County Ozone Maintenance Plan.
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\2\ The boundaries of the Clark County ozone nonattainment area
are defined in 40 CFR 81.329. Specifically, the area is defined as:
``That portion of Clark County that lies in hydrographic areas 164A,
164B, 165, 166, 167, 212, 213, 214, 216, 217, and 218 but excluding
the Moapa River Indian Reservation and the Fort Mojave Indian
Reservation.'' The area includes a significant portion of the
unincorporated portions of central and southern Clark County, as
well as the cities of Las Vegas, Henderson, North Las Vegas, and
Boulder City.
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For the purposes of this final rule, we have summarized the basis
for our findings in connection with the proposed approvals of the Ozone
Maintenance Plan and redesignation request. For a more detailed
explanation as well as background information concerning the 1997 8-
hour ozone NAAQS, the CAA requirements for redesignation, and the ozone
planning history of Clark County, please see our November 13, 2012
proposed rule.
A. Determination That the Area Has Attained the Applicable NAAQS
Prior to redesignating an area to attainment, CAA section
107(d)(3)(E)(i) requires that we determine that the area has attained
the NAAQS. For our proposed rule, consistent with the requirements
contained in 40 CFR part 50, EPA reviewed the ozone ambient air
monitoring data for the monitoring period from 2009 through 2011, as
recorded in the EPA Air Quality System (AQS) database, and determined,
based on the complete, quality-assured data for 2009-2011, that the
Clark County 8-hour ozone nonattainment area has attained the 1997 8-
hour ozone standard because the design value \3\ is less than 0.084
ppm. We also reviewed preliminary data from 2012 and found that it was
consistent with continued attainment of the standard in the Clark
County 8-hour ozone nonattainment area. See pages 67602-67604 of our
November 13, 2012 proposed rule.
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\3\ The design value for the 8-hour standard is the three-year
average of the annual fourth-highest daily maximum 8-hour ozone
concentration at the worst-case monitoring site in the area.
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B. The Area Must Have a Fully Approved SIP Meeting Requirements
Applicable for Purposes of Redesignation Under Section 110 and Part D
Sections 107(d)(3)(E)(ii) and (v) of the CAA require EPA to
determine that the area has a fully approved applicable SIP under
section 110(k) that meets all applicable requirements under section 110
and part D for the purposes of redesignation. For the reasons
summarized below, we found that the Clark County 8-hour ozone
nonattainment area has a fully approved applicable SIP under section
110(k) that meets all applicable requirements under section 110 and
part D for the purposes of redesignation. See pages 67604-67607 of our
November 13, 2012 proposed rule.
With respect to section 110 of the CAA (General SIP Requirements),
we concluded that NDEP and Clark County have met all SIP requirements
for Clark County applicable for purposes of redesignation. Our
conclusion in this regard was based on our review of the Clark County
portion of the Nevada SIP.
With respect to part D (of title I of the CAA), we reviewed the
Clark County portion of the Nevada SIP for compliance with applicable
requirements under both subparts 1 and 2.\4\
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\4\ Subpart 1 contains general, less prescriptive requirements
for all nonattainment areas of any pollutant, including ozone,
governed by a NAAQS. Subpart 2 contains additional, more specific
requirements for ozone nonattainment areas classified under subpart
2.
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First, we noted that EPA previously determined that the Clark
County 8-hour ozone nonattainment area attained the 1997 8-hour ozone
NAAQS based on 2007-2009 ozone data (76 FR 17343, March 29, 2011), and
thereby suspended, under 40 CFR 51.918, the obligation on the State of
Nevada to submit an attainment demonstration and associated reasonably
available control measures (RACM), a reasonable further progress (RFP)
plan, contingency measures and other planning requirements related to
attainment of the 1997 8-hour ozone NAAQS. As such, we explained that
the State's compliance status with the attainment-related SIP
requirements under subpart 1 was not relevant for the purposes of
evaluating the State's redesignation request.
As to the other applicable subpart 1 requirements, we found that:
The emissions inventory requirements of CAA section
172(c)(3) would be met by our approval of the Clark County Ozone
Maintenance Plan and related emissions inventories for volatile organic
compounds (VOC) and oxides of nitrogen (NOX);
A fully-approved nonattainment New Source Review (NSR)
program was not a prerequisite to redesignation in this instance
because the Clark County Ozone Maintenance Plan demonstrates
maintenance of the standard without implementation of nonattainment
NSR; moreover, after redesignation, sources under NDEP jurisdiction
would be subject to the federal PSD program and sources under Clark
County jurisdiction would be subject to an EPA-approved PSD program
that is deficient in certain respects but not in ways that would
interfere with maintenance of the ozone standard; and
Clark County and the State previously met the requirements
for transportation conformity SIPs under section 176(c) (see EPA's
approval of Clark County's transportation conformity SIP at 73 FR
66182, November 7, 2008).\5\
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\5\ In any event, EPA believes it is reasonable to interpret the
conformity requirements as not applicable for purposes of evaluating
a redesignation request under section 107(d)(3)(E). See Wall v. EPA,
265 F.3d 426, 439 (6th Cir. 2001) upholding this interpretation.
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With respect to the requirements associated with subpart 2, we
noted that the Clark County 8-hour ozone nonattainment area was
initially designated nonattainment under subpart 1 of the CAA, but was
subsequently classified as marginal nonattainment for the 1997 8-hour
ozone standard under
[[Page 1151]]
subpart 2 of part D of the CAA in May 2012, i.e., after NDEP's
submittal of the redesignation request. Under EPA's longstanding policy
of evaluating requirements in accordance with the requirements due at
the time a redesignation request is submitted and in consideration of
the inequity of applying retroactively any requirements that might in
the future be applied, we determined that the requirements under
subpart 2 need not be addressed as a condition of redesignation.
C. The Area Must Show the Improvement in Air Quality Is Due to
Permanent and Enforceable Emissions Reductions
Section 107(d)(3)(E)(iii) precludes redesignation of a
nonattainment area to attainment unless EPA determines that the
improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
SIP and applicable Federal air pollution control regulations and other
permanent and enforceable regulations. Based on our review of the
control measures credited in the Clark County Ozone Maintenance Plan as
providing the emissions reductions sufficient to attain the 1997 8-hour
ozone NAAQS in the Clark County 8-hour ozone nonattainment area through
the year 2022, and based on our consideration of other factors such as
weather patterns and economic activity, we found that the improvement
in air quality in the Clark County 8-hour ozone nonattainment area is
the result of permanent and enforceable emissions reductions from a
combination of Federal vehicle and fuel measures and EPA-approved State
and local control measures. See pages 670607-67608 of our November 13,
2012 proposed rule.
D. The Area Must Have a Fully Approved Maintenance Plan Under CAA
Section 175A
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
As explained in the proposed rule, we interpret this section of the Act
to require, in general, the following core elements: Attainment
inventory, maintenance demonstration, monitoring network, verification
of continued attainment, and contingency plan. Based on our review and
evaluation of the Ozone Maintenance Plan, we concluded that it
contained the core elements and met the requirements of CAA section
175A. See pages 67608-67613. Our conclusion was based on the following
findings:
The base year emissions inventories for 2008 are
comprehensive, that the methods and assumptions used by Clark County
Department of Air Quality (DAQ) to develop the 2008 emission inventory
are reasonable, and that the inventories reasonably estimate actual
ozone season emissions in an attainment year. Moreover, we found that
the 2008 emissions inventories in the Ozone Maintenance Plan reflect
the latest planning assumptions and emissions models available at the
time the plan was developed, and provide a comprehensive and reasonably
accurate basis upon which to forecast ozone precursor emissions for
years 2015 and 2022;
The projected VOC and NOX emissions estimates
adequately account for projected area-wide growth, specific projects
(including, among others, the Nellis Air Force Base F-35 beddown
project), and emissions reduction credits (ERCs), and show that VOC and
NOX emissions would remain well below the attainment levels
throughout the 10-year maintenance period and thereby adequately
demonstrate maintenance through that period;
Clark County DAQ has committed to continue to operate the
air quality monitoring network to verify the continued attainment of
the 1997 8-hour ozone NAAQS ambient ozone monitoring; \6\
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\6\ Although the Ozone Maintenance Plan is not explicit in this
regard, we presume that Clark County DAQ's intention to continue
operation of a monitoring network means that the agency intends to
do so consistent with EPA's monitoring requirements in 40 CFR part
58 (``Ambient Air Quality Surveillance'').
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Clark County DAQ's commitment in the Ozone Maintenance
Plan to the continued operation of an ozone monitoring network and the
requirement that NDEP and Clark County DAQ must inventory emissions
sources and report to EPA on a periodic basis \7\ would be sufficient
for the purpose of verifying continued attainment; and
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\7\ See 40 CFR part 51, subpart A (``Air Emissions Reporting
Requirements'').
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The contingency provisions of the Ozone Maintenance Plan
clearly identify specific contingency measures, contain adequate
tracking and triggering mechanisms to determine when contingency
measures are needed, contain a sufficient description of the process of
recommending and implementing contingency measures, and contain
specific timelines for action, and would, therefore, be adequate to
ensure prompt correction of a violation and comply with the
contingency-related requirements under CAA section 175A(d).
Lastly, we proposed to approve the motor vehicle emissions budgets
(MVEBs) contained in the Ozone Maintenance Plan because we found that
they meet the transportation conformity adequacy requirements under 40
CFR 93.118(e)(4) and (5). In so proposing, we found that, among other
things, the MVEBs, when considered with emissions from all other
sources, would be consistent with maintenance of the 1997 8-hour ozone
NAAQS in the Clark County 8-hour ozone nonattainment area.
II. Public Comments
Our November 13, 2012 proposed rule provided for a 30-day comment
period. We received comment letters in support of our proposed action
from NDEP and the Washoe County Health District. In its comment letter,
NDEP also noted that approval of the redesignation request for the
Clark County 8-hour ozone nonattainment area will negate the need, that
had been identified in EPA's proposed limited approval and limited
disapproval of Clark County's revised NSR rules at 77 FR 43206, for a
revision to NDEP's nonattainment NSR provisions at this time. We
received no adverse comments in response to our November 13, 2012
proposed rule.
III. Final Action
Under CAA sections 110(k)(3) and 107(d)(3)(D), and for the reasons
set forth in our proposed rule and summarized above, EPA is taking
final action to approve NDEP's submittal dated April 11, 2011 of Clark
County's Ozone Redesignation Request and Maintenance Plan (March 2011)
(``Clark County Ozone Maintenance Plan'') as a revision to the Nevada
SIP and to approve NDEP's request to redesignate the Clark County 8-
hour ozone nonattainment area to attainment for the 1997 8-hour ozone
NAAQS. In connection with the Clark County Ozone Maintenance Plan, EPA
finds that the maintenance demonstration showing that the area will
continue to attain the 1997 8-hour ozone NAAQS for 10 years beyond
redesignation (i.e., through 2022) and the contingency provisions
describing the actions that Clark County will take in the event of a
future monitored violation meet all applicable requirements for
maintenance plans and related contingency provisions in CAA section
175A. EPA is also approving the following motor vehicle emissions
budgets (MVEBs) from the Clark County Ozone Maintenance Plan for
transportation conformity purposes
[[Page 1152]]
because we find that they meet the applicable transportation conformity
requirements under 40 CFR 93.118(e):
------------------------------------------------------------------------
VOC (tpd, NOX (tpd,
Budget year average summer average summer
weekday) weekday)
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2008 65.08 68.46
2015 45.32 34.69
2022 36.71 23.15
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These new MVEBs become effective on the date of publication of this
final rule in the Federal Register (see 40 CFR 93.118(f)(2)) and must
be used by U.S. Department of Transportation (DOT) and the Regional
Transportation Commission of Southern Nevada (RTC) for future
transportation conformity determinations for Clark County. The existing
2008 VOC and NOX MVEBs from the Clark County Early Progress
Plan,\8\ which EPA found adequate in 2009, are replaced by these
budgets.
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\8\ On July 28, 2008, NDEP submitted the 8-Hour Early Progress
Plan for Clark County, Nevada (June 2008) to EPA as a revision to
the Nevada SIP.
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In connection with the redesignation request, EPA is taking final
action to approve the request because we find that the area has met the
five criteria for redesignation under CAA section 107(d)(3)(E).
Specifically, we find that the area has attained the 1997 8-hour ozone
NAAQS, that relevant portions of the Nevada SIP are fully approved,
that the improvement in air quality is due to permanent and enforceable
reductions in emissions, that Nevada has met all requirements
applicable to the Clark County 8-hour ozone nonattainment area with
respect to section 110 and part D of the CAA, and that the area has a
fully approved maintenance plan meeting the requirements of section
175A (i.e., the Clark County Ozone Maintenance Plan approved herein).
IV. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment under section
107(d)(3)(E) and the accompanying approval of a maintenance plan under
section 175A are actions that affect the status of a geographical area
and do not impose any additional regulatory requirements on sources
beyond those imposed by State law. Redesignation to attainment does not
in and of itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, 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, these actions merely approve a State plan
and redesignation request as meeting Federal requirements and do not
impose additional requirements beyond those by State law. For these
reasons, these actions:
Are 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);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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 CAA; and
Do not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, 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. Nonetheless, EPA
discussed the proposed action with the one Tribe, the Las Vegas Paiute
Tribe, located within the Clark County 8-hour ozone nonattainment area.
The Tribe has indicated that it concurs with the redesignation request.
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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 11, 2013. 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
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: December 20, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
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 in paragraph (e), the table is amended by adding an
entry for ``Ozone Redesignation Request and
[[Page 1153]]
Maintenance Plan, Clark County, Nevada (March 2011)'' after the entry
for ``Emissions Inventory for 1995'' to read as follows:
Sec. 52.1470 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Nevada Nonregulatory and Quasi-Regulatory Measures
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Applicable
Name of SIP provision geographic or State EPA approval date Explanation
nonattainment area submittal date
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Air Quality Implementation Plan for the State of Nevada
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* * * * * * *
Ozone Redesignation Request and Clark County, 4/11/11 [Insert Federal Approval includes
Maintenance Plan, Clark County, Nevada: that Register page appendices A, B,
Nevada (March 2011). portion of Clark number where the and C. Relates to
County that lies document begins] 1/ the 1997 8-hour
in hydrographic 8/13. ozone standard.
areas 164A, 164B,
165, 166, 167,
212, 213, 214,
216, 217, and 218,
but excluding the
Moapa River Indian
Reservation and
the Fort Mohave
Indian Reservation.
* * * * * * *
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PART 81--[AMENDED]
0
3. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--[AMENDED]
0
4. Section 81.329 is amended in the table for ``Nevada--1997 8-Hour
Ozone NAAQS (Primary and Secondary)'' by revising the entry for ``Las
Vegas, NV'' to read as follows:
Sec. 81.329 Nevada.
* * * * *
Nevada--1997 8-Hour Ozone NAAQS
[Primary and secondary]
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Designation a Classification
Designated area -------------------------------------------------------------------------------
Date 1 Type Date 1 Type
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Las Vegas, NV: Clark County 2/7/13 Attainment..............
(part) That portion of Clark
County that lies in
hydrographic areas 164A, 164B,
165, 166, 167, 212, 213, 214,
216, 217, and 218, but
excluding the Moapa River
Indian Reservation and the Fort
Mohave Indian Reservation\b\.
* * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\b\ The use of reservation boundaries for this designation is for purposes of CAA planning only and is not
intended to be a federal determination of the exact boundaries of the reservations. Nor does the specific
listing of the Tribes in this table confer, deny, or withdraw Federal recognition of any of the Tribes listed
or not listed.
\1\ This date is June 15, 2004 unless otherwise noted.
[FR Doc. 2013-00057 Filed 1-7-13; 8:45 am]
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