[Federal Register Volume 82, Number 108 (Wednesday, June 7, 2017)]
[Rules and Regulations]
[Pages 26351-26354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11699]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0399; FRL-9963-25-Region 9]


Air Plan Approval; Nevada, Lake Tahoe; Second 10-Year Carbon 
Monoxide Limited Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the State of Nevada's (``State'') April 
3, 2012 state implementation plan (SIP) submission and the State's 
August 26, 2016 supplement to their 2012 submittal. The State submitted 
these two SIP revisions for the Lake Tahoe, Nevada carbon monoxide (CO) 
area to address the Clean Air Act (CAA) requirement to submit by the 
eighth year of the first maintenance plan a second 10-year maintenance 
plan.

DATES: This final rule is effective on July 7, 2017.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R09-OAR-2015-0399. All

[[Page 26352]]

documents in the docket are listed on the http://www.regulations.gov 
Web site. Although listed in the index, some information is not 
publicly available, e.g., confidential business information (CBI) or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: John Kelly, EPA Region IX, (415) 947-
4151, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 10, 2017 (82 FR 13235), the EPA published a direct final 
rule (DFR) approving two SIP revisions submitted by the Nevada Division 
of Environmental Protection. On April 3, 2012, the State submitted to 
the EPA a CO maintenance plan as a SIP revision. This 2012 maintenance 
plan was intended to meet the CAA requirement (see CAA section 175A(b)) 
to submit a second maintenance plan. The CAA requires that, in the 
eighth year of an area's first 10-year maintenance plan, a second 
maintenance plan be submitted covering an additional ten years beyond 
the first 10-year period. Subsequently, on August 26, 2016, the State 
submitted a supplement to their 2012 submittal.
    In the March 10, 2017 DFR, the EPA also approved a surrogate 
monitoring method for the State to monitor ambient levels of CO in the 
area. This surrogate monitoring method was described in both the 2012 
submittal and 2016 supplement, with the 2016 supplement containing the 
State's final intended method.
    In the March 10, 2017 DFR, the EPA stated that if adverse comments 
were received by April 10, 2017, the EPA would publish a timely 
withdrawal and address the comments in a subsequent final rule based on 
the notice of proposed rulemaking (NPR), also published on March 10, 
2017 (82 FR 13269).
    In this instance, the EPA received an adverse comment on the 
alternative monitoring strategy and attempted to withdraw the DFR prior 
to the effective date of May 9, 2017. However, the EPA inadvertently 
did not withdraw the DFR prior to that date and the rule prematurely 
became effective on May 9, 2017, revising the State's SIP to include 
the 2012 submittal and 2016 supplement on that date.
    In today's final rule, the EPA is responding to the comment 
submitted on the EPA's proposed approval of revisions to the State's 
SIP, is approving the 2012 SIP submittal and 2016 supplement into the 
SIP, and is amending the effective date of the regulations' inclusion 
in the SIP to correct our failure to withdraw the DFR (after the EPA 
received an adverse public comment) prior to the May 9, 2017 effective 
date of the DFR.

II. Summary of SIP Revision and the EPA's Analysis

    As described in the DFR, the State's 2012 submittal was a limited 
maintenance plan (LMP). A LMP is appropriate for CO areas that are 
below 85 percent of the 8-hour CO national ambient air quality 
standards (NAAQS). The following are the key elements of a LMP for CO: 
Attainment inventory, maintenance demonstration, monitoring network, 
verification of continued attainment, contingency plan, and conformity 
determinations.\1\
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    \1\ See DFR footnote 1 for a further discussion of LMP 
requirements (82 FR 13235, March 10, 2017).
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    The 2012 plan contains the following sections to address these 
elements: (1) An introductory section containing a general discussion 
of plan approvals for the area and its redesignation to attainment; (2) 
a maintenance plan section including subsections on monitoring data for 
the area, air quality trends and background on the State's intention to 
discontinue monitoring CO at the only remaining gaseous CO ambient 
monitor in the Lake Tahoe basin located at Harvey's Resort and Hotel in 
Stateline, Nevada (hereinafter, the ''Harvey's monitor''); (3) a 
section titled ''Verification of Continued Attainment'' that addresses 
population change, traffic volumes, meteorology and the State's 
surrogate monitoring method; (4) contingency measures for the area; and 
(5) transportation conformity requirements.
    The 2016 supplement revises several sections of the 2012 plan and 
contains an emissions inventory. The DFR describes our evaluation of 
the 2012 plan and 2016 supplement as they pertain to each of the 
required LMP elements.\2\ Although we approved the State's surrogate 
monitoring method in the DFR, we took no action on the State's monitor 
shutdown request and anticipate acting on the request in a separate 
action after we review the State's annual network plan and finalize 
this action.
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    \2\ In the DFR we also noted that for this area, the initial 
maintenance period extended through 2014 and that the second 10-year 
maintenance period therefore extends through 2024.
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    As described in the DFR, this action incorporates the 2012 plan, as 
amended by the 2016 supplement, and specific portions of the 2016 
supplement itself, into the federally enforceable SIP. Together, these 
two submittals meet the applicable CAA requirements, and the EPA has 
determined they are sufficient to provide for maintenance of the CO 
NAAQS over the course of the second 10-year maintenance period through 
2024.

III. Public Comment and the EPA's Response

    The EPA received an adverse comment from an anonymous commenter 
(``commenter'') on March 14, 2017.\3\
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    \3\ We note that, although we did receive another comment 
(regarding ``chemtrails''), we believe the comment is immaterial to 
the purpose of this action, and we are not addressing the comment in 
this action.
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    Comment Summary: The commenter noted their support for the EPA's 
action, stating that it would have a positive effect on the environment 
and would benefit the public. However, the commenter went on to comment 
adversely on the EPA's approval of the State's surrogate monitoring 
method, because monitoring methods are important to safeguard against a 
possible return of high levels of CO occurring in the region again, and 
the plan the EPA was approving did not offer any scenarios for 
reinstating monitoring.
    Response: The EPA acknowledges the commenter's support. However, we 
disagree with some of the assertions and conclusions in the comment. 
First, the text the commenter quoted from our action was taken from the 
Code of Federal Regulations (CFR). The text the commenter quoted was 
that monitoring may be discontinued if the monitor in question has not 
measured violations of the applicable NAAQS in the previous five years. 
This text is not something that the EPA was proposing to approve in our 
action, but rather is text from the existing CFR (40 CFR part 58), 
that, in a general sense, describes the circumstances that the EPA 
evaluates in determining whether to allow discontinuation of a monitor. 
We are not acting on a general policy regarding the circumstances under 
which ambient monitoring may be discontinued, nor are we acting on a 
specific instance of a monitor's discontinuation. Rather, we said in 
the DFR that we are not taking action on the State's request to shut 
down the Harvey's monitor, and that the EPA would respond to the 
State's

[[Page 26353]]

request in a separate action. We are instead approving a surrogate 
monitoring method for the State to use in the area.
    In addition, we believe the commenter is factually incorrect in 
stating that nothing is offered to reinstate ambient CO monitors ``if 
CO were ever to plague the region again.'' To the contrary, the EPA 
explained in the DFR the circumstances under which ambient monitoring 
would be re-started. The surrogate monitoring method is a method of 
monitoring that relies on indirect indicators (traffic counts) to be 
monitored during the entire second maintenance period, and that have in 
fact already commenced. The EPA has already received several years' 
worth of traffic count reports from the State. The surrogate monitoring 
method using traffic counts is an ongoing effort of the State, 
performed at two locations in the area. Further, if the traffic counts 
rise above trigger levels, the State will re-start ambient monitoring. 
Lastly, once ambient monitoring is triggered, specific stringent 
conditions must be met to discontinue ambient CO monitoring. This will 
be the case even if the EPA, in a separate future action, approves the 
State's 2012 request to discontinue ambient CO monitoring. That is, 
even if the EPA approves the shutdown of the Harvey's ambient CO 
monitor per the State's 2012 request, a triggered re-start of the 
monitor (``triggered monitoring'') would set in motion specific 
requirements before triggered monitoring could be discontinued. 
Regardless of the status of ambient CO monitoring, the State's traffic 
counts at two locations remain in place and are required by today's 
action to be continued throughout the maintenance period, through the 
end of 2024. The commenter did not provide any data or rationale for 
why monitoring methods should be addressed further.

IV. Final Action

    The EPA is approving revisions to the Nevada SIP. The revisions 
incorporate the 2012 maintenance plan and 2016 supplement. The EPA is 
also amending the effective date of the inclusion of these revisions to 
the State's SIP because the revisions were added to the SIP prematurely 
on May 9, 2017, when the EPA did not withdraw its DFR after receiving a 
comment on our approval of the State's two SIP submittals. This rule 
responds to the comment received, finalizes our approval and corrects 
the effective date for inclusion of the State's two submittals into the 
SIP.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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);
     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 CAA; and
     does not provide the 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 the EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    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, that includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The 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).

C. Petitions for Judicial Review

    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 August 7, 2017. 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 approving the revisions to the State of Nevada's SIP 
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, Reporting and 
recordkeeping requirements.

    Dated: May 23, 2017.
Alexis Strauss,
Acting Regional Administrator, Region IX.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

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Subpart DD--Nevada

0
2. Section 52.1470, paragraph (e) is amended by adding, under the table 
heading ``Air Quality Implementation Plan for the State of Nevada,'' 
two entries ``2012 Revision to the Nevada State Implementation Plan for 
Carbon Monoxide, April 2012'' and ``2016 Supplement to Nevada's 2nd 10-
Year CO Limited Maintenance Plan at Lake Tahoe, August 26, 2016'' after 
the entry ``Addendum to the October 27, 2003 letter of transmittal of 
the redesignation request and maintenance plan,'' to read as follows:


Sec.  52.1470  Identification of plan.

* * * * *
    (e) * * *

                   EPA-Approved Nevada Nonregulatory Provisions 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 \1\
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                                                  * * * * * * *
2012 Revision to the Nevada      Nevada portion of         4/3/2012  [INSERT Federal     Adopted on 4/3/2012.
 State Implementation Plan for    Lake Tahoe Basin--                  Register            Approval excludes
 Carbon Monoxide, April 2012.     portions of                         CITATION] (6/7/     sections 3.2.4 and 4.
                                  Carson City,                        2017).              With 2016 supplement,
                                  Douglas and                                             fulfills requirement
                                  Washoe counties.                                        for second ten-year
                                                                                          maintenance plan.
2016 Supplement to Nevada's 2nd  Nevada portion of        8/26/2016  [INSERT Federal     Adopted on 8/26/2016.
 10-Year CO Limited Maintenance   Lake Tahoe Basin--                  Register            Approval includes
 Plan at Lake Tahoe, August 26,   portions of                         CITATION] (6/7/     revised sections 3.2.4
 2016.                            Carson City,                        2017).              and 4 (alternative CO
                                  Douglas and                                             monitoring strategy
                                  Washoe counties.                                        and contingency plan),
                                                                                          2011 emissions
                                                                                          inventory and 2024
                                                                                          projected emissions
                                                                                          inventory (Attachment
                                                                                          A), evidence of public
                                                                                          participation
                                                                                          (Attachment B) and
                                                                                          revised table of
                                                                                          contents for 2012
                                                                                          submittal (Attachment
                                                                                          F). Excludes
                                                                                          Attachments C, D and
                                                                                          E.
 
                                                  * * * * * * *
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\1\ The organization of this table generally follows from the organization of the State of Nevada's original
  1972 SIP, which was divided into 12 sections. Nonattainment and maintenance plans, among other types of plans,
  are listed under Section 5 (Control Strategy). Lead SIPs and Small Business Stationary Source Technical and
  Environmental Compliance Assistance SIPs are listed after Section 12 followed by nonregulatory or quasi-
  regulatory statutory provisions approved into the SIP. Regulatory statutory provisions are listed in 40 CFR
  52.1470(c).

[FR Doc. 2017-11699 Filed 6-6-17; 8:45 am]
 BILLING CODE 6560-50-P