67600 Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Proposed Rules 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds, New Source 

Review, Minor New Source Review, 

Permitting, Incorporation by reference. 

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

Dated: October 19, 2012. 

James B. Martin, 

Regional Administrator, Region 8. 

[FR Doc. 2012–27566 Filed 11–9–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R09–OAR–2012–0792;9750–9] 

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: Proposed rule. 

SUMMARY: EPA is proposing 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 proposing to 

approve a request from the Nevada 

Division of Environmental Protection to 

redesignate the Clark County ozone 

nonattainment area to attainment of the 

1997 8-hour ozone National Ambient 

Air Quality Standard because the 

request meets the statutory requirements 

for redesignation under the Clean Air 

Act. 

DATES: Comments must be received on 

or before December 13, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R09–OAR–2012–0792, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. Email: r9_airplanning@epa.gov. 

3. Fax: 415–947–3579. 

4. Mail or Deliver: Ginger Vagenas 

(AIR–2), U.S. Environmental Protection 

Agency, Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105–3901. 

Deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. 

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 email. 

http://www.regulations.gov 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 

email directly to EPA, your email 

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: 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., 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, 

vagenas.ginger@epa.gov. 

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 Today’s Proposed Action 

II. Background 

III. Procedural Requirements for Adoption 

and Submittal of SIP Revisions 

IV. Substantive Requirements for 

Redesignation 

V. Evaluation of the State’s Redesignation 

Request for the Clark County 8-Hour 

Ozone Nonattainment Area 

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 

1. Basic SIP Requirements Under CAA 

Section 110 

2. Part D Requirements 

a. Introduction 

b. Emissions Inventory 

c. Permits for New and Modified Major 

Stationary Sources 

d. Compliance With Section 110(a)(2) 

e. Conformity Requirements 

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 

1. Attainment Inventory 

2. Maintenance Demonstration 

3. Monitoring Network 

4. Verification of Continued Attainment 

5. Contingency Provisions 

6. Subsequent Maintenance Plan Revisions 

7. Motor Vehicle Emissions Budgets 

VI. Proposed Action and Request for Public 

Comment 

VII. Statutory and Executive Order Reviews 

I. Summary of Today’s Proposed Action 

EPA is proposing to take several 

related actions. First, under Clean Air 

Act (CAA or ‘‘Act’’) section 110(k)(3), 

EPA is proposing 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 finds 

that the maintenance demonstration 

showing how the area will continue to 

attain the 1997 8-hour ozone national 

ambient air quality standard (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 proposing to approve 

the motor vehicle emissions budgets 

(MVEBs) in the Clark County Ozone 

Maintenance Plan because we find they 

meet the applicable transportation 

conformity requirements under 40 CFR 

93.118(e). 

Second, under CAA section 

107(d)(3)(D), EPA is proposing to 

approve NDEP’s request that 

accompanied the submittal of the 

maintenance plan to redesignate the 

Clark County 8-hour ozone 

nonattainment area to attainment for the 

1997 8-hour ozone NAAQS. We are 

doing so based on our conclusion that 

the area has met the five criteria for 


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1On March 27, 2008 (73 FR 16436), EPA 

promulgated a revised 8-hour ozone standard of 

0.075 ppm (the 2008 8-hour ozone standard), and 

on May 21, 2012, EPA designated the entire state 

of Nevada unclassifiable/attainment for the 2008 8- 

hour ozone standard (77 FR 30088). This 

rulemaking relates only to the 1997 8-hour ozone 

standard and does not relate to the 2008 8-hour 

ozone standard. 

2The design value for the 1-hour ozone standard 

is the fourth-highest daily maximum 1-hour ozone 

concentration over a three-year period at the worstcase monitoring site in the area. 

3The 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. 

4The 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. 

redesignation under CAA section 

107(d)(3)(E). Our conclusion in this 

regard is in turn based on our proposed 

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 proposed approval as 

part of this action of the Clark County 

Ozone Maintenance Plan. 

II. Background 

Ground-level ozone is generally not 

emitted directly by sources. Rather, 

directly-emitted oxides of nitrogen 

(NOX) and volatile organic compounds 

(VOC) react in the presence of sunlight 

to form ground-level ozone, as a 

secondary pollutant, along with other 

secondary compounds. NOX and VOC 

are ‘‘ozone precursors.’’ Reduction of 

peak ground-level ozone concentrations 

is typically achieved through 

controlling VOC and NOX emissions. 

In 1971, under section 109 of the Act, 

as amended in 1970, EPA promulgated 

the original NAAQS for several 

pervasive air pollutants, including 

photochemical oxidants. NAAQS 

represent concentration levels the 

attainment and maintenance of which, 

allowing for an adequate margin of 

safety, EPA has determined to be 

requisite to protect public health 

(‘‘primary’’ NAAQS) and welfare 

(‘‘secondary’’ NAAQS). 

In 1978, EPA designated the Las 

Vegas Valley (hydrographic area No. 

212) as a nonattainment area for the 

photochemical oxidant NAAQS. See 43 

FR 8962 (March 3, 1978). In 1979, EPA 

revised the NAAQS from an hourly 

average of 0.08 parts per million (ppm) 

oxidant to an hourly average of 0.12 

ppm ozone. See 44 FR 8202 (February 

8, 1979). The nonattainment designation 

for Las Vegas Valley for photochemical 

oxidant carried over to the 1-hour ozone 

NAAQS. 

During the 1980s, Clark County 

adopted a number of rules and prepared 

a number of nonattainment plans to 

address planning requirements under 

the CAA, as amended in 1977. NDEP 

submitted these rules and plans to EPA 

at various times, and EPA approved a 

number of them into the Nevada SIP. 

Among the rules approved by EPA as 

revisions to the Nevada SIP as part of 

the ozone control strategy in Las Vegas 

Valley are Clark County air pollution 

rules section 33, which relates to 

chlorine in chemical processes); 

sections 50, 51, and 52, which relate to 

storage and distribution of petroleum 

products; and section 60, which relates 

to evaporation and leakage. In 1986, in 

light of the approved control strategy 

and monitored levels below the 

NAAQS, EPA redesignated Las Vegas 

Valley to attainment for the 1-hour 

ozone NAAQS. See 51 FR 41788 

(November 19, 1986). 

In 1997, EPA revised the NAAQS for 

ozone, setting it at 0.08 ppm averaged 

over an 8-hour time frame (‘‘1997 8-hour 

ozone standard’’). EPA set the 1997 8- 

hour ozone standard based on scientific 

evidence demonstrating that ozone 

causes adverse health effects at lower 

ozone concentrations and over longer 

periods of time, than was understood 

when the pre-existing 1-hour ozone 

standard was set. EPA determined that 

the 1997 8-hour standard would be 

more protective of human health, 

especially for children and adults who 

are active outdoors, and individuals 

with a pre-existing respiratory disease, 

such as asthma.1

In 2004, EPA designated areas of the 

country with respect to the 1997 8-hour 

ozone NAAQS. See 69 FR 23858 (April 

30, 2004). Under EPA’s ‘‘Phase 1’’ 

implementation rule for the 1997 8-hour 

ozone standard (69 FR 23951, April 30, 

2004), an area was classified under 

subpart 2 based on its 8-hour ozone 

design value (i.e., the 3-year average 

annual fourth-highest daily maximum 8- 

hour average ozone concentration at the 

worst-case monitoring site in the area or 

in its immediate downwind environs), if 

it had a 1-hour ozone design value 2 at 

the time of designation at or above 0.121 

ppm. All other areas were covered 

under subpart 1 based on their 8-hour 

ozone design values 3 (69 FR 23951). 

Clark County was designated as a 

‘‘subpart 1’’ ozone nonattainment area 

by EPA on April 30, 2004 based on air 

quality monitoring data from 2001– 

2003. The designation became effective 

on June 15, 2004. On September 17, 

2004, EPA reduced the geographic 

extent of the ozone nonattainment area 

to encompass a portion of, but not all of, 

Clark County.4 See 69 FR 55956 

(September 17, 2004), 70 FR 71612 

(November 29, 2005), and 40 CFR 

81.329. 

On December 22, 2006, the U.S. Court 

of Appeals for the District of Columbia 

Circuit (DC Circuit) vacated EPA’s Phase 

1 implementation rule for the 1997 8- 

hour ozone standard (69 FR 23951, 

April 30, 2004). South Coast Air Quality 

Management Dist. v. EPA, 472 F.3d 882 

(DC Cir. 2006). On June 8, 2007, in 

response to several petitions for 

rehearing, the DC Circuit Court (Court) 

clarified that the Phase 1 rule was 

vacated only for those parts of the rule 

that had been successfully challenged. 

The June 8, 2007, decision left intact the 

Court’s rejection of EPA’s reasons for 

implementing the 8-hour ozone 

standard in certain nonattainment areas 

under subpart 1 in lieu of subpart 2 of 

the CAA. 

On May 14, 2012, in response to the 

Court’s vacating of the provision of 

EPA’s Phase 1 implementation rule for 

the 1997 8-hour ozone standard that 

placed certain nonattainment areas, 

including Clark County solely under 

subpart 1, EPA classified Clark County 

as a marginal ozone nonattainment area 

under subpart 2 of the CAA (77 FR 

28424). 

On July 28, 2008, NDEP submitted the 

8-hour Ozone Early Progress Plan for 

Clark County, Nevada (June 2008) 

(‘‘Clark County Ozone EPP’’) to EPA as 

a revision to the Nevada SIP. The 

purpose of the Clark County Ozone EPP 

was to establish motor vehicle 

emissions budgets (MVEBs) consistent 

with progress towards attainment of the 

1997 8-hour ozone standard in advance 

of completion and submittal of an 

attainment demonstration. The Clark 

County EPP established MVEBs of 64.2 

and 76.1 tons per day (ozone season) for 

VOC and NOX, respectively, for 2008. 

On May 5, 2009, EPA found the MVEBs 

in the Clark County EPP adequate for 

the purposes of transportation 

conformity. See 74 FR 22738 (May 14, 

2009). Since the effective date of EPA’s 

adequacy finding (i.e., May 29, 2009), 

the applicable metropolitan planning 

organization (MPO), i.e., the Regional 

Transportation Commission of Southern 

Nevada (RTC), and the U.S. Department 


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of Transportation have been required to 

use these budgets in transportation 

conformity analyses for regional 

transportation plans, programs and 

projects. 

On March 29, 2011, EPA determined 

that the Clark County 8-hour ozone 

nonattainment area had attained the 

1997 8-hour ozone NAAQS, based on 

complete, quality-assured, and certified 

ambient air monitoring data that 

showed the area monitored attainment 

of the 1997 8-hour ozone NAAQS for 

the 2007–2009 monitoring period (76 FR 

17343). As a result, the obligation for 

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 was 

suspended until such time as: the area 

is redesignated to attainment, at which 

time the requirements no longer apply; 

or EPA determines that the area has 

violated the 1997 8-hour ozone NAAQS. 

See 40 CFR 51.918. In this action, we 

are updating the determination of 

attainment to account for more recent 

ozone monitoring data consistent with 

the applicable criterion for 

redesignation under CAA section 

107(d)(3)(E)(i). 

Lastly, on April 11, 2011, NDEP 

submitted the Clark County Ozone 

Maintenance Plan and requested that 

EPA redesignate the Clark County 8- 

hour ozone nonattainment area to 

attainment for the 1997 8-hour ozone 

standard. We are proposing action today 

on the NDEP’s April 11, 2011 

redesignation request and submittal of 

the Clark County Ozone Maintenance 

Plan. 

III. Procedural Requirements for 

Adoption and Submittal of SIP 

Revisions 

Section 110(l) of the Act requires 

States to provide reasonable notice and 

public hearing prior to adoption of SIP 

revisions. In this action, we are 

proposing action on NDEP’s April 11, 

2011 submittal of the Clark County 

Ozone Maintenance Plan as a revision to 

the Nevada SIP. 

Appendix C of the Clark County 

Ozone Maintenance Plan documents the 

public review process followed by Clark 

County in adopting the plan prior to 

transmittal to NDEP for subsequent 

submittal to EPA as a revision to the 

Nevada SIP. The documentation in 

appendix C provides evidence that 

reasonable notice of a public hearing 

was provided to the public and that a 

public hearing was conducted prior to 

adoption. Specifically, notice of the 

availability of, and opening of a 30-day 

comment period on, the draft ozone 

maintenance plan was published on 

December 12, 2010 in a newspaper of 

general circulation within the Las Vegas 

area and on the County’s Web page. No 

comments were submitted. 

On February 1, 2011, the Clark 

County Board of Commissioners set a 

public hearing for March 15, 2011 to 

consider and approve the Clark County 

Ozone Maintenance Plan. The 

announcement of the public hearing 

was subsequently published on the 

County’s Web page. On March 15, 2011, 

the Clark County Board of 

Commissioners adopted the Clark 

County Ozone Maintenance Plan at the 

close of the public hearing. Following 

adoption, Clark County Department of 

Air Quality (DAQ) forwarded the plan to 

NDEP, the Governor of Nevada’s 

designee for SIP matters, and NDEP then 

submitted the plan as a revision to the 

Nevada SIP to EPA for approval on 

April 11, 2011. 

Based on the documentation 

contained in appendix C of the plan, we 

find that the submittal of the Clark 

County Ozone Maintenance Plan as a 

SIP revision satisfies the procedural 

requirements of section 110(l) of the Act 

for revising SIPs. 

IV. Substantive Requirements for 

Redesignation 

The CAA establishes the requirements 

for redesignation of a nonattainment 

area to attainment. Specifically, section 

107(d)(3)(E) allows for redesignation 

provided that the following criteria are 

met: (1) EPA determines that the area 

has attained the applicable NAAQS; (2) 

EPA has fully approved the applicable 

implementation plan for the area under 

section 110(k); (3) EPA determines that 

the improvement in air quality is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the applicable SIP, 

applicable Federal air pollution control 

regulations, and other permanent and 

enforceable reductions; (4) EPA has 

fully approved a maintenance plan for 

the area as meeting the requirements of 

CAA section 175A; and (5) the State 

containing such area has met all 

requirements applicable to the area 

under section 110 and part D of the 

CAA. Section 110 identifies a 

comprehensive list of elements that SIPs 

must include, and part D establishes the 

SIP requirements for nonattainment 

areas. Part D is divided into six 

subparts. The generally-applicable 

nonattainment SIP requirements are 

found in part D, subpart 1, and the 

ozone-specific nonattainment SIP 

requirements are found in part D, 

subpart 2. 

EPA provided guidance on 

redesignations in a document entitled, 

‘‘State Implementation Plans; General 

Preamble for the Implementation of 

Title I of the Clean Air Act Amendments 

of 1990,’’ published in the Federal 

Register on April 16, 1992 (57 FR 

13498), and supplemented on April 28, 

1992 (57 FR 18070) (referred to herein 

as the ‘‘General Preamble’’). Another 

relevant EPA guidance document 

includes ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, EPA Office of Air 

Quality Planning and Standards, 

September 4, 1992 (referred to herein as 

the ‘‘Calcagni memo’’). 

For the reasons set forth below in 

section V of this document, we propose 

to approve NDEP’s request for 

redesignation of the Clark County 8- 

hour ozone nonattainment area to 

attainment for the 1997 8-hour ozone 

NAAQS based on our conclusion that 

all of the criteria under CAA section 

107(d)(3)(E) have been satisfied. 

V. Evaluation of the State’s 

Redesignation Request for the Clark 

County 8-Hour Ozone Nonattainment 

Area 

A. Determination That the Area Has 

Attained the Applicable NAAQS 

CAA section 107(d)(3)(E)(i) requires 

that we determine that the area has 

attained the NAAQS. EPA generally 

makes the determination of whether an 

area’s air quality meets the ozone 

NAAQS based upon the most recent 

three years of complete, quality-assured 

data gathered at established State and 

Local Air Monitoring Stations (SLAMS) 

in the nonattainment area and entered 

into the EPA Air Quality System (AQS) 

database. Data from air monitors 

operated by state/local agencies in 

compliance with EPA monitoring 

requirements must be submitted to 

AQS. Heads of monitoring agencies 

annually certify that these data are 

accurate to the best of their knowledge. 

Accordingly, EPA relies primarily on 

data in AQS when determining the 

attainment status of areas. See 40 CFR 

50.10; 40 CFR part 50, appendix I; 40 

CFR part 53; 40 CFR part 58, appendices 

A, C, D and E. All data are reviewed to 

determine the area’s air quality status in 

accordance with 40 CFR part 50, 

appendix I. 

Under EPA regulations at 40 CFR part 

50, the 1997 8-hour ozone standard is 

attained at a site when the 3-year 

average of the annual fourth-highest 


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5As allowed by 40 CFR 58.14, Clark County DAQ 

has periodically modified its monitoring network 

and therefore not all monitors operated over the 

entire 2009–2011 period. In 2010, the Craig Road, 

Lone Mountain, and Orr monitors were 

discontinued. EPA has approved the 

discontinuation of these sites (see letter dated 

October 23, 2012 from Matthew Lakin, Manager, Air 

Quality Analysis Office, EPA Region IX to Mike 

Sword, Engineering Manager, Clark County DAQ). 

Clark County’s monitoring network has exceeded 

the number of required monitors throughout the 

referenced time period. 

6 DAQ operates Federal equivalent method (FEM) 

monitors for ozone. Specifically, API 400 Series 

ultraviolet absorption monitors. See the Clark 

County DAQ ‘‘Annual Network Plan Report’’, page 

12, June 2011. These monitoring devices have an 

EPA designation number EQOA–0992–087. See 

EPA ‘‘List of Designated Reference and Equivalent 

Methods’’, page 28, June 6, 2012, available at: 

http://www.epa.gov/ttn/amtic/criteria.html. 

7Also, the data from the Boulder City ozone 

monitor did not meet EPA’s completeness criteria 

during year 2010 because of a temporary shutdown 

(from November 2009 through March 2010) (i.e., the 

low ozone season) due to station repairs. This 

temporary shutdown was approved by EPA. See 

page 71 of the Clark County DAQ Annual Network 

Plan Report, June 2010. In addition, the data from 

the Apex ozone monitor likewise did not meet EPA 

completeness criteria during 2010 and 2011 but 

EPA has approved a shortened ozone monitoring 

season at the Apex site. See letter dated March 8, 

2012 from Matthew Lakin, Manager, Air Quality 

Analysis Office, EPA Region IX to Mike Sword, 

Engineering Manager, Clark County DAQ. 

daily maximum 8-hour average ozone 

concentrations at an ozone monitor is 

less than or equal to 0.08 ppm. See 40 

CFR 50.10. This 3-year average is 

referred to as the design value. When 

the design value is less than or equal to 

0.084 ppm (based on the rounding 

convention in 40 CFR part 50, appendix 

I) at each monitoring site within the 

area, then the area is meeting the 

NAAQS. The data completeness 

requirement is met when the three-year 

average percent of days with valid 

ambient monitoring data is at least 90%, 

and no single year has less than 75% 

data completeness as determined in 

appendix I of 40 CFR part 50. 

The Clark County Department of Air 

Quality (DAQ), (previously known as 

Clark County Department of Air Quality 

and Environmental Management, or 

DAQEM) is responsible for monitoring 

ambient air quality within Clark County. 

DAQ submits monitoring network plan 

reports to EPA on an annual basis. 

These reports discuss the status of the 

air monitoring network, as required 

under 40 CFR part 58. Beginning in 

2007, EPA has reviewed these annual 

plans for compliance with the 

applicable reporting requirements in 40 

CFR 58.10. With respect to ozone, we 

have found DAQ’s annual network 

plans to meet the applicable 

requirements under 40 CFR part 58. See 

EPA letters to DAQ concerning DAQ’s 

annual network plan reports for 2010 

and 2011, included in the docket for 

this rulemaking. Furthermore, we 

concluded in our Technical System 

Audit Report (February 2010) that Clark 

County DAQ’s ambient air monitoring 

network currently meets or exceeds the 

requirements for the minimum number 

of monitoring sites designated as 

SLAMS for all of the criteria pollutants. 

Also, DAQ annually certifies that the 

data it submits to AQS are complete and 

quality-assured. See, e.g., the letter 

dated February 28, 2012, from Lewis 

Wallenmeyer, Director, DAQ, to Jared 

Blumenfeld, EPA Region IX Regional 

Administrator. 

Clark County DAQ operated 13 ozone 

SLAMS monitoring sites during the 

2009–2011 period 5 within the Clark 

County ozone nonattainment area: Apex 

(Apex Valley), Boulder City (City of 

Boulder City), Craig Road (City of North 

Las Vegas), J.D. Smith School (City of 

North Las Vegas), Jean (City of Jean, 

south of Las Vegas), Jerome Mack (near 

North Las Vegas Airport), Joe Neal 

(northwest Las Vegas), Lone Mountain 

(northwest Las Vegas), Orr School 

(central-southeast Las Vegas), Paul 

Meyer Park (southwest Las Vegas), Palo 

Verde School (west Las Vegas), Walter 

Johnson (west Las Vegas), and 

Winterwood (southeast Las Vegas). All 

13 sites have monitored ozone 

concentrations on a continuous basis 

using ultraviolet absorption monitors.6

The spatial scale and monitoring 

objective of most of DAQ’s ozone 

monitoring sites are ‘‘neighborhood’’ 

and ‘‘population exposure,’’ 

respectively. The exceptions are the 

Apex and Jean sites, whose spatial scale 

and monitoring objective is ‘‘regional’’ 

and ‘‘regional transport,’’ respectively, 

and the Joe Neal site, whose spatial 

scale is ‘‘neighborhood’’ and monitoring 

objective is ‘‘highest concentration.’’ See 

‘‘Clark County Department of Air 

Quality and Environmental 

Management—Annual Network Plan 

Report (June 2011).’’ 

Consistent with the requirements 

contained in 40 CFR part 50, EPA has 

reviewed the ozone ambient air 

monitoring data for the monitoring 

period from 2009 through 2011 

collected at the monitoring sites 

discussed above, as recorded in AQS 

and summarized in table 1, and found 

that the data meet our completeness 

criteria, except at the discontinued or 

newly-operating monitoring sites.7

Table 1 summarizes the site-specific 

annual fourth-high daily maximum 8- 

hour ozone concentrations and 3-year 

ozone design values for all monitoring 

sites within the Clark County 8-hour 

ozone nonattainment area for the period 

of 2009–2011. As shown in table 1, the 

design value for the 2009–2011 period 

was less than 0.084 ppm at all of the 

monitors. Therefore, we are proposing 

to determine, 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. There are 

ten ozone monitors currently operating 

in the nonattainment area. Preliminary 

SLAMS data for 2012 from these 

monitors, which are summarized in 

table 2, are also consistent with 

continued attainment. 

TABLE 1—SUMMARY OF AMBIENT DATA COLLECTED WITHIN CLARK COUNTY 8-HOUR OZONE NONATTAINMENT AREA, 

2009–2011 

Monitor Site code 2009 4th 

highest 

2010 4th 

highest 

2011 4th 

highest 

2009–2011 

average (ppm) 

Craig Road ........................................................................... 32–003–0020 0.072 (*) N/A N/A 

Apex ..................................................................................... 32–003–0022 0.070 0.068 0.070 0.069 

Paul Meyer ........................................................................... 32–003–0043 0.071 0.070 0.078 0.073 

Walter Johnson .................................................................... 32–003–0071 0.074 0.073 0.077 0.074 

Lone Mountain ..................................................................... 32–003–0072 0.072 (*) N/A N/A 

Palo Verde ........................................................................... 32–003–0073 0.072 0.071 0.077 0.073 

Joel Neal .............................................................................. 32–003–0075 0.074 0.074 0.077 0.075 

Winterwood .......................................................................... 32–003–0538 0.070 0.068 0.073 0.070 

Jerome Mack ** .................................................................... 32–003–9540 N/A N/A 0.073 N/A 

Boulder City ......................................................................... 32–003–0601 0.071 0.069 0.070 0.070 

Jean ..................................................................................... 32–003–1019 0.072 0.074 0.074 0.073 


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67604 Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Proposed Rules 

8The applicable SIP for NDEP and Clark County 

may be found at http://yosemite.epa.gov/r9/ 

r9sips.nsf/allsips?readform&state=Nevada. We note 

that SIPs must be fully approved only with respect 

to applicable requirements for purposes of 

redesignation in accordance with section 

107(d)(3)(E)(ii). Thus, for example, CAA section 

110(a)(2)(D) requires that SIPs contain certain 

measures to prevent sources in a state from 

significantly contributing to air quality problems in 

another state. However, the section 110(a)(2)(D) 

requirements for a state are not linked with a 

particular nonattainment area’s designation and 

classification in that state. EPA believes that the 

requirements linked with a particular 

nonattainment area’s designation and classification 

are the relevant measures to evaluate in reviewing 

a redesignation request. The transport SIP submittal 

requirements, where applicable, continue to apply 

to a state regardless of the designation of any one 

particular area in the state. 

Thus, we do not believe that these requirements 

should be construed to be applicable requirements 

for purposes of redesignation. In addition, EPA 

believes that the other section 110 elements not 

connected with nonattainment plan submissions 

and not linked with an area’s attainment status are 

not applicable requirements for purposes of 

redesignation. The State will still be subject to these 

requirements after the Clark County ozone planning 

area is redesignated. The section 110 and part D 

requirements, which are linked with a particular 

area’s designation and classification, are the 

relevant measures to evaluate in reviewing a 

redesignation request. This policy is consistent with 

EPA’s existing policy on applicability of conformity 

(i.e., for redesignations) and oxygenated fuels 

requirement. See Reading, Pennsylvania, proposed 

and final rulemakings 61 FR 53174–53176 (October 

10, 1996), 62 FR 24816 (May 7, 1997); ClevelandAkron-Lorain, Ohio, final rulemaking 61 FR 20458 

(May 7, 1996); and Tampa, Florida, final 

rulemaking 60 FR 62748 (December 7, 1995). See 

also the discussion of this issue in the Cincinnati 

redesignation 65 FR 37890 (June 19, 2000), in the 

Pittsburgh redesignation 66 FR 50399 (October 19, 

2001), and in the Los Angeles redesignation 72 FR 

6986 (February 14, 2007) and 72 FR 26718 (May 11, 

2007). EPA believes that section 110 elements not 

linked to the area’s nonattainment status are not 

applicable for purposes of redesignation. 

9Recently, EPA took final limited approval and 

limited disapproval on updated new source review 

(NSR) rules adopted by Clark County and submitted 

as a revision to the Nevada SIP (77 FR 64039, 

October 18, 2012) and issued a partial approval and 

partial disapproval of Nevada’s ‘‘infrastructure’’ SIP 

for the 1997 8-hour ozone NAAQS (77 FR 64737, 

October 23, 2012). While these two final rules are 

not full approvals, they do not represent an obstacle 

to redesignation of the Clark County 8-hour ozone 

nonattainment area because EPA’s rationale for 

finding that the State has met the requirements of 

CAA section 107(d)(3)(E)(ii) and (v) does not rely 

on a fully-approved nonattainment NSR program, 

and because the ‘‘infrastructure’’ SIP elements that 

EPA disapproved are not related to the 

nonattainment SIP requirements for the Clark 

County 8-hour ozone nonattainment area and thus 

are not relevant for the purposes of redesignation. 

TABLE 1—SUMMARY OF AMBIENT DATA COLLECTED WITHIN CLARK COUNTY 8-HOUR OZONE NONATTAINMENT AREA, 

2009–2011—Continued 

Monitor Site code 2009 4th 

highest 

2010 4th 

highest 

2011 4th 

highest 

2009–2011 

average (ppm) 

Orr ........................................................................................ 32–003–1021 0.071 (*) N/A N/A 

J.D. Smith ............................................................................ 32–003–2002 0.072 0.068 0.072 0.070 

* Monitor discontinued. N/A = not available. 

** 2011 was the first full year of operation of the Jerome Mack ozone monitor. 

TABLE 2—PRELIMINARY 4TH HIGH

DAILY MAXIMUM 8-HOUR OZONE

CONCENTRATIONS FOR 2012 a

Monitor Site code 

4th 

highest 

value 

(ppm) 

Apex .................... 32–003–0022 0.076 

Paul Meyer ......... 32–003–0043 0.077 

Walter Johnson ... 32–003–0071 0.075 

Palo Verde .......... 32–003–0073 0.078 

Joel Neal ............. 32–003–0075 0.075 

Winterwood ......... 32–003–0538 0.074 

Jerome Mack ...... 32–003–0540 0.073 

Boulder City ........ 32–003–0601 0.077 

Jean .................... 32–003–1019 0.077 

J.D. Smith ........... 32–003–2002 0.076 

aThe data in this table are from AQS Preliminary Design Value Report. Report Date: 

Oct. 11, 2012. See docket. 

B. The Area Must Have a Fully 

Approved SIP Meeting Requirements 

Applicable for Purposes of 

Redesignation Under Section 110 and 

Part D 

Section 107(d)(3)(E)(ii) and (v) 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. 

1. Basic SIP Requirements Under CAA 

Section 110 

Section 110(a)(2) sets forth the general 

elements that a SIP must contain in 

order to be fully approved. Although 

section 110(a)(2) was amended in 1990, 

a number of the requirements did not 

change in substance, and therefore, EPA 

believes that the pre-amendment EPAapproved SIP met these requirements in 

Clark County with respect to ozone. As 

to those requirements that were 

amended, (see 57 FR 27936 and 27939, 

June 23, 1992), many are duplicative of 

other requirements of the Act. EPA has 

analyzed the Nevada SIP and 

determined that it is consistent with the 

requirements of amended section 

110(a)(2). The Clark County portion of 

the approved Nevada SIP contains 

enforceable emission limitations; 

requires monitoring, compiling and 

analyzing of ambient air quality data; 

requires preconstruction review of new 

or modified stationary sources; provides 

for adequate funding, staff, and 

associated resources necessary to 

implement its requirements; and 

provides the necessary assurances that 

the State maintains responsibility for 

ensuring that the CAA requirements are 

satisfied in the event that Clark County 

is unable to meet its CAA obligations.8

On numerous occasions over the past 

38 years, NDEP has submitted and we 

have approved provisions addressing 

the basic CAA section 110 provisions. 

There are no outstanding or 

disapproved applicable SIP submittals 

with respect to the Clark County portion 

of the SIP that prevent redesignation of 

the Clark County 8-hour ozone 

nonattainment area for the 1997 8-hour 

ozone standard.9 Therefore, we propose 

to conclude that NDEP and Clark 

County have met all SIP requirements 

for Clark County applicable for purposes 

of redesignation under section 110 of 

the CAA (General SIP Requirements). 

2. Part D Requirements 

a. Introduction 

The CAA contains two sets of 

provisions, subparts 1 and 2, that 

address planning and emission control 

requirements for ozone nonattainment 

areas. Both of these subparts are found 

in title I, part D of the CAA; sections 

171–179 and sections 181–185, 

respectively. 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. 

The applicable subpart 1 

requirements are contained in sections 

172(c)(1)–(9) and 176 of the CAA. Under 

subpart 1, with respect to the Clark 

County 8-hour ozone nonattainment 

area, the State of Nevada is required to 

submit SIP revisions that provide for: 

• Implementation of all reasonably 

available control measures (RACM), 

including, at a minimum, reasonably 

available control technology for existing 

sources and attainment of the standard 

(section 172(c)(1)); 

• Reasonable further progress (section 

172(c)(2)); 


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10 In any event, the State of Nevada would not be 

required to submit a SIP revision under section 

182(a)(2)(A) to correct RACT rules for the Clark 

County 8-hour ozone nonattainment area because 

the area had not been identified by EPA under the 

pre-1990 CAA as an area that had RACT rule 

deficiencies. At that time, all of Clark County, 

including Las Vegas Valley, was designated as 

attainment for the then-current 1-hour ozone 

standard and had been so designated since 1986. 

See 51 FR 41788 (November 19, 1986). We also note 

that, for the purposes of meeting the SIP 

requirements for nonattainment areas for carbon 

monoxide, the State previously submitted, and EPA 

approved, SIP revisions that would meet the vehicle 

inspection and maintenance requirements under 

CAA section 182(a)(2)(B) for the Clark County 8- 

hour ozone nonattainment area, if those 

requirements were applicable for the purposes of 

redesignation. See at 69 FR 56351 (September 21, 

2004), 73 FR 38124 (July 3, 2008), and 74 FR 3975 

(January 22, 2009). 

• A comprehensive, accurate, current 

inventory of actual emissions from all 

sources of the relevant pollutant or 

pollutants in the area (section 172(c)(3)); 

• Identification and quantification of 

the emissions, if any, of any such 

pollutants which will be allowed in 

accordance with section 173(a)(1)(B) 

(i.e., new or modified stationary sources 

located in established economic 

development zones) (section 172(c)(4)); 

• Permits for the construction and 

operation of new and modified major 

stationary sources in the nonattainment 

area (section 172(c)(5)); 

• Enforceable emission limitations as 

may be necessary or appropriate to 

provide for attainment of such standard 

in such area by the applicable 

attainment date (section 172(c)(6)); 

• Compliance with section 110(a)(2) 

of the Act (section 172(c)(7)); 

• Use of equivalent modeling 

emission inventory, and planning 

procedures if approved by EPA (section 

172(c)(8)); 

• Contingency measures (section 

172(c)(9)); and 

• Interagency consultation and 

enforceability for the purposes of 

transportation conformity (section 

176(c)(5) and 40 CFR 51.390). 

As noted above, EPA 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 until 

such time as: the area is redesignated to 

attainment, at which time the 

requirements no longer apply; or EPA 

determines that the area has violated the 

8-hour ozone NAAQS. As such, the 

State’s compliance status with the 

attainment-related SIP requirements 

under subpart 1 is not relevant for the 

purposes of evaluating the State’s 

redesignation request. In addition, we 

note that the State has not sought to 

exercise the options available under 

CAA sections 172(c)(4) (identification 

and quantification of certain emissions 

increases) or 172(c)(8) (equivalent 

techniques). 

With respect to the requirements 

associated with subpart 2, we note that, 

as discussed in more detail above, 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 

subpart 2 of part D of the CAA. See 77 

FR 28424 (May 14, 2012). The effective 

date of EPA’s classification of the Clark 

County 8-hour ozone nonattainment 

area as marginal was June 13, 2012, and 

under the final May 14, 2012 subpart 2 

classifications rule, states have one year 

from the effective date of that final rule 

(i.e., June 13, 2013) to submit SIP 

revisions. 

NDEP has not submitted any SIP 

revisions for the Clark County 8-hour 

ozone nonattainment area in response to 

the area’s recent classification to 

marginal.10 However, EPA believes that 

this does not preclude this 

redesignation from being approved. This 

belief is based upon: (1) EPA’s 

longstanding policy of evaluating 

requirements in accordance with the 

requirements due at the time 

redesignation request is submitted; and 

(2) consideration of the inequity of 

applying retroactively any requirements 

that might in the future be applied. 

First, at the time the redesignation 

request was submitted (i.e., April 11, 

2011), the Clark County 8-hour ozone 

nonattainment area was not classified 

under subpart 2, and thus, subpart 2 

requirements were not yet due for this 

area. Under EPA’s longstanding 

interpretation of section 107(d)(3)(E) of 

the CAA, to qualify for redesignation, 

states requesting redesignation to 

attainment must meet only the relevant 

SIP requirements that came due prior to 

the submittal of a complete 

redesignation request. See the Calcagni 

memo and also the September 17, 1993, 

Michael Shapiro Memorandum (‘‘State 

Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) on or after 

November 15, 1992,’’ Memorandum 

from Michael Shapiro, Acting Assistant 

Administrator for Air and Radiation), 

and 60 FR 12459, (March 7, 1995) 

(Redesignation of Detroit-Ann Arbor, 

Michigan); Sierra Club v. EPA, 375 F.3d 

537 (7th Cir. 2004) (upholding this 

interpretation); 68 FR 25418, 25424, 

25427 (May 12, 2003) (redesignation of 

St. Louis, Missouri). 

Moreover, it would be inequitable to 

retroactively apply any new SIP 

requirements that were not applicable at 

the time the request was submitted. The 

D.C. Circuit Court has recognized the 

inequity in such retroactive rulemaking 

(see Sierra Club v. Whitman 285 F. 3d 

63 (D.C. Cir. 2002)), in which the court 

upheld a district court’s ruling refusing 

to make retroactive an EPA 

determination of nonattainment that 

was past the statutory due date. Such a 

determination would have resulted in 

the imposition of additional 

requirements on the area. The court 

stated, ‘‘[a]lthough EPA failed to make 

the nonattainment determination within 

the statutory frame, Sierra Club’s 

proposed solution only makes the 

situation worse. Retroactive relief would 

likely impose large costs on the states, 

which would face fines and suits for not 

implementing air pollution prevention 

plans in 1997, even though they were 

not on notice at the time.’’ Id. at 68. 

Similarly here, it would be unfair to 

penalize the Clark County 8-hour ozone 

nonattainment area by applying to it, for 

purposes of redesignation, additional 

SIP requirements under subpart 2 that 

were not in effect or yet due at the time 

it submitted its redesignation request, or 

the time that the Clark County 8-hour 

ozone nonattainment area attained the 

NAAQS. 

In the following paragraphs, we 

explain how the State has met the SIP 

revision requirements for those 

remaining requirements under part D 

that are not currently suspended or not 

otherwise applicable. 

b. Emissions Inventory 

EPA regulations at 40 CFR 51.915 

extend the SIP requirements under CAA 

sections 172(c)(3) to areas designated as 

nonattainment for the 1997 8-hour 

ozone standard. CAA section 172(c)(3) 

requires States to submit a 

comprehensive, accurate, current 

inventory of actual VOC and NOX

emissions for the baseline year from all 

sources within the nonattainment area. 

The inventory is to address actual VOC 

and NOX emissions during the ozone 

season, and all stationary (generally 

referring to larger stationary source or 

‘‘point’’ sources), area (generally 

referring to smaller stationary and 


srobinson on DSK4SPTVN1PROD with 
67606 Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Proposed Rules 

11PSD requirements control the growth of new 

source emissions in areas designated as attainment 

for a NAAQS. 

fugitive (non-smokestack) sources), and 

mobile (on-road, nonroad, locomotive 

and aircraft) sources are to be included 

in the inventory. 

We interpret the Act such that the 

emission inventory requirements of 

section 172(a)(3) are satisfied by the 

inventory requirements of the 

maintenance plan. See 57 FR 13498, at 

13564 (April 16, 1992). Thus, our 

proposed approval of the Clark County 

Ozone Maintenance Plan and related 

VOC and NOX emission inventories and 

our proposed approval of NDEP’s 

redesignation request would satisfy the 

requirements of sections 172(a)(3) for 

the purposes of redesignation of the 

Clark County 8-hour ozone 

nonattainment area to attainment for the 

1997 8-hour ozone NAAQS. 

c. Permits for New and Modified Major 

Stationary Sources 

To meet the requirements of CAA 

section 172(c)(5), states must submit SIP 

revisions that meet the requirements 

under 40 CFR 51.165 (‘‘Permit 

requirements’’), and EPA regulations at 

40 CFR 51.914 extend the SIP 

requirements of 40 CFR 51.165 to areas 

designated as nonattainment for the 

1997 8-hour ozone standard. 

Under 40 CFR 51.165, states are 

required to submit SIP revisions that 

establish certain requirements for new 

or modified stationary sources in 

nonattainment areas, including 

provisions to ensure that major new 

sources or major modifications of 

existing sources of nonattainment 

pollutants incorporate the highest level 

of control, referred to as the Lowest 

Achievable Emission Rate (LAER), and 

that increases in emissions from such 

stationary sources are offset so as to 

provide for reasonable further progress 

towards attainment in the 

nonattainment area. 

The process for reviewing permit 

applications and issuing permits for 

new or modified stationary sources of 

air pollution is referred to as ‘‘New 

Source Review’’ (NSR). With respect to 

nonattainment pollutants in 

nonattainment areas, this process is 

referred to as ‘‘nonattainment NSR.’’ 

With respect to pollutants for which an 

area is designated as attainment or 

unclassifiable, states are required to 

submit SIP revisions that ensure that 

major new stationary sources and major 

modifications of existing stationary 

sources meet the Federal requirements 

for Prevention of Significant 

Deterioration’’ (PSD), including 

application of ‘‘best available control 

technology,’’ for each applicable 

pollutant emitted in significant 

amounts, among other requirements. 

As noted above, under Nevada law, 

specific electric steam-generating 

emission units (i.e., power plants) 

within Clark County are under NDEP 

jurisdiction. See Nevada Revised 

Statutes (NRS) section 445B.500. Thus, 

state regulations govern air pollution 

permits issued by NDEP to those units. 

Clark County DAQ is responsible for all 

other stationary sources emissions units, 

and Clark County regulations govern air 

pollutant permits issued to them. 

Under the Clean Air Act Amendments 

of 1977, States with designated 

nonattainment areas were required to 

amend their NSR rules to impose LAER 

and offset requirements on new major 

sources and major modifications of 

nonattainment pollutants in 

nonattainment areas. As noted 

previously, under the 1977 Act 

Amendments, we designated Las Vegas 

Valley as a nonattainment area for 

photochemical oxidant, later changed to 

ozone. To address the nonattainment 

NSR requirements flowing from the 

1977 Act Amendments, the State of 

Nevada amended its nonattainment NSR 

rules (Nevada Air Quality Regulations 

(NAQR) Article 13), and NDEP 

submitted them to EPA for approval as 

part of the Nevada SIP. We approved the 

amended NSR rules in 1981. See 46 FR 

21758 (April 14, 1981). Under these 

EPA-approved rules, LAER and offsets 

have been required for new ‘‘point 

sources’’ that cause emissions greater 

than 100 tons per year of ozone 

precursors in ozone nonattainment 

areas. In the 1980’s EPA also approved 

Clark County NSR rules for Las Vegas 

Valley as meeting the related 

requirements under the 1977 Amended 

Act and EPA regulations. 

The 1990 Clean Air Act Amendments 

retained the core nonattainment NSR 

elements of LAER and offsets but added 

other requirements. To address the 

nonattainment designations of Las 

Vegas Valley for carbon monoxide and 

particulate matter for sources under 

NDEP jurisdiction and in lieu of 

amending the rules to meet the 

additional NSR requirements under the 

1990 Act Amendments, the State of 

Nevada submitted a rule (Nevada 

Administrative Code (NAC) section 

445B.22083) establishing a construction 

ban for new major sources and major 

modifications within the nonattainment 

area. NAC 445B.22083, with a limited 

exception, prohibits new power plants 

or major modifications to existing power 

plants under State jurisdiction within 

four hydrographic areas in Clark 

County, including Las Vegas Valley 

(hydrographic area No. 212). See 69 FR 

31056, 31059 (June 2, 2004) and 69 FR 

54006, at 54017 (September 7, 2004). 

We approved NAC 445B.22083 into the 

Nevada SIP most recently in 2008. See 

73 FR 20536 (April 16, 2008). However, 

the prohibition in NAC 445B.22083 

does not cover the entire Clark County 

8-hour ozone nonattainment area, which 

includes the four hydrographic areas 

listed in NAC 445B.22083, but also 

includes all or portions of seven 

additional hydrographic areas in Clark 

County. See 40 CFR 81.329. Thus, the 

State of Nevada does not have a 

nonattainment NSR program meeting 

the requirements of 40 CFR 51.165 for 

those sources under NDEP jurisdiction 

within the Clark County 8-hour ozone 

nonattainment area. 

With respect to Clark County 

regulations, EPA recently finalized a 

limited approval and limited 

disapproval of updated Clark County 

rules governing NSR, including 

nonattainment NSR, but also PSD. See 

77 FR 64039 (October 18, 2012). Thus, 

Clark County does not have a 

nonattainment NSR program meeting 

the requirements of 40 CFR 51.165 for 

those sources under Clark County DAQ 

jurisdiction within the Clark County 8- 

hour ozone nonattainment area. 

We have determined, however, that, 

since PSD requirements 11 will apply 

after redesignation, an area being 

redesignated to attainment need not 

comply with the requirement that a NSR 

program be approved prior to 

redesignation, provided that the state 

demonstrates maintenance of the 

NAAQS in the area without 

implementation of nonattainment NSR. 

A more detailed rationale for this view 

is described in a memorandum from 

Mary Nichols, Assistant Administrator 

for Air and Radiation, dated October 14, 

1994, titled ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ See 

redesignation rulemakings for Detroit, 

Michigan (60 FR 12459, March 7, 1995); 

Cleveland-Akron-Lorain, Ohio (61 FR 

20458, 20469–20470, May 7, 1996); 

Louisville, Kentucky (66 FR 53665, 

October 23, 2001); and, Grand Rapids, 

Michigan (61 FR 31831, June 21, 1996). 

Based on our review of the Clark 

County Ozone Maintenance Plan, we 

conclude the maintenance 

demonstration included therein does 

not rely on implementation of 

nonattainment NSR because the plan 

applies standard growth factors to 

stationary source emissions and does 

not rely on NSR offsets to reduce the 

rate of increase in emissions over time 

from point sources. The Ozone 


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Maintenance Plan does include a lineitem for emission reduction credits for 

VOC and NOX but adds them to future 

projected emissions rather than 

assuming that they would be used to 

reduce emissions growth from 

stationary sources. Therefore, EPA 

concludes that the State need not have 

a fully approved nonattainment NSR 

program as an applicable requirement 

for approval of the State’s ozone 

redesignation request for the Clark 

County ozone planning area. 

Because the State’s PSD program has 

been disapproved with respect to 

sources under NDEP jurisdiction, the 

Federal PSD requirements under 40 CFR 

52.21 will apply to new major sources 

or major modifications of ozone 

precursors under NDEP jurisdiction 

once the Clark County 8-hour ozone 

nonattainment area is redesignated to 

attainment. See 40 CFR 52.1485(b). 

NDEP implements and enforces the 

Federal PSD regulations under a 

delegation agreement with EPA Region 

IX. 

With respect to stationary sources 

under Clark County DAQ jurisdiction, 

the County’s PSD program will apply to 

ozone precursor emissions of new major 

sources or major modifications upon 

redesignation of the Clark County 8- 

hour ozone nonattainment area to 

attainment. We note that Clark County’s 

PSD program is not fully approved, but 

the deficiencies that formed the basis for 

EPA’s recent limited approval and 

limited disapproval action would not 

interfere with maintenance of the ozone 

standard for two reasons. First, the 

deficiencies that relate to ozone 

precursors are limited to a few 

definitions: ‘‘allowable emissions,’’ 

‘‘baseline actual emissions,’’ ‘‘net 

emissions increase,’’ and ‘‘major 

modification.’’ See 77 FR 64039, at 

64047 (October 18, 2012). Second, the 

limited disapproval triggered an 

obligation on EPA to promulgate a 

Federal implementation plan (FIP) to 

remedy the PSD deficiencies by 

November 19, 2014 unless NDEP 

submits, and EPA approves, amended 

Clark County rules that correct the 

deficiencies prior to that time. Thus, the 

overlap in time during which the Clark 

County 8-hour area would be 

redesignated to attainment but would 

not be subject to a fully-approved PSD 

program would be less than two years. 

d. Compliance With Section 110(a)(2) 

Section 172(c)(7) requires the SIP to 

meet the applicable provisions of 

section 110(a)(2). As noted above, we 

conclude the Nevada SIP meets the 

requirements of section 110(a)(2) 

applicable for purposes of this 

redesignation. 

e. Conformity Requirements 

Under section 176(c) of the Clean Air 

Act Amendments of 1990, States are 

required to establish criteria and 

procedures to ensure that Federally 

supported or funded projects conform to 

the air quality planning goals in the 

applicable SIP. Section 176(c) further 

provided that State conformity 

provisions must be consistent with 

Federal conformity regulations that the 

CAA required EPA to promulgate. EPA’s 

conformity regulations are codified at 40 

CFR part 93, subparts A (referred to 

herein as ‘‘transportation conformity’’) 

and B (referred to herein as ‘‘general 

conformity’’). Transportation conformity 

applies to transportation plans, 

programs, and projects developed, 

funded, and approved under title 23 

U.S.C. or the Federal Transit Act, and 

general conformity applies to all other 

Federally-supported or funded projects. 

SIP revisions intended to address the 

conformity requirements are referred to 

herein as ‘‘conformity SIPs.’’ 

In November 2008, EPA approved 

Clark County’s transportation 

conformity criteria and procedures as 

meeting the related SIP requirements 

under part 51, subpart T (‘‘Conformity 

to State or Federal Implementation 

Plans of Transportation Plans, Programs, 

and Project Developed, Funded or 

Approved Under Title 23 U.S.C. or the 

Federal Transit Laws’’). See 73 FR 

66182 (November 7, 2008). 

With respect to ‘‘general conformity,’’ 

we note that, in August 2005, Congress 

passed the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA–LU), which 

eliminated the requirement for States to 

adopt and submit conformity SIPs 

addressing general conformity 

requirements. See 75 FR 17254 (April 5, 

2010) for conforming changes to EPA’s 

general conformity regulations. The 

State of Nevada is thus no longer 

required to submit a general conformity 

SIP for the Clark County 8-hour ozone 

planning area. 

Therefore, based on our approval of 

Clark County’s transportation 

conformity SIP and SAFETEA–LU’s 

elimination of the general conformity 

SIP requirement, we find that Clark 

County and the State have met the 

requirements for conformity SIPs in the 

Clark County 8-hour ozone 

nonattainment area under CAA section 

176(c). 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. 

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. Under this 

criterion, the state must be able to 

reasonably attribute the improvement in 

air quality to emissions reductions 

which are permanent and enforceable. 

Attainment resulting from temporary 

reductions in emissions rates (e.g., 

reduced production or shutdown due to 

temporary adverse economic 

conditions) or unusually favorable 

meteorology would not qualify as an air 

quality improvement due to permanent 

and enforceable emission reductions. 

The Clark County Ozone Maintenance 

Plan credits the following control 

measures as providing the emissions 

reductions sufficient to attain the 1997 

8-hour ozone NAAQS in the Clark 

County 8-hour ozone nonattainment 

area through year 2022: the Federal Tier 

2 motor vehicle emissions standards; 

the Federal highway diesel rule; the 

Federal large nonroad diesel engines 

rule; the Federal nonroad spark-ignition 

engines and recreational engines 

standards; the Federal nonroad sparkignition engines and equipment 

standard; the State’s vehicle I/M 

program; and the County’s NSR and 

stationary source prohibitory rules. As 

discussed above, the State’s vehicle 

inspection and maintenance (I/M) 

program and the County’s NSR rules 

and VOC-related prohibitory rules (such 

as section 52 (‘‘Handling of Gasoline at 

Service Stations, Airports and Storage 

Tanks’’)) have been approved into the 

SIP, and thus are federally enforceable. 

The Federal on-road and nonroad 

vehicle and engine standards cited 

above have 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. The new Federal fuel 

standards cited above have resulted in 

more immediate emissions reductions of 

ozone precursors and provide for the 

use of advanced pollution control 

technology that would not otherwise be 

possible. The emissions reductions from 


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67608 Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Proposed Rules 

12See table 4–1, and appendix A, table 3–1, from 

Clark County DAQ’s 8-Hour Ozone Early Progress 

Plan for Clark County, Nevada (June 2008) and 

tables 4–1, 6–1, 6–2, and 6–3 from the Clark County 

Ozone Maintenance Plan. 

13Our reference for climate data is ‘‘Climate of 

Las Vegas, Nevada,’’ by Andrew Gorelow and Chris 

Stachelski, updated October 2012, as well as the 

climate data discussed on pages 4–2 and 4–3 of the 

Ozone Maintenance Plan. 

14The Ozone Maintenance Plan uses the term, 

‘‘point sources,’’ to refer to those stationary source 

facilities that are required to report their emissions 

to Clark County DAQ or NDEP. 

15The Ozone Maintenance Plan uses the term, 

‘‘nonpoint sources,’’ to refer to those stationary and 

area sources that fall below point source reporting 

levels and that are too numerous or small to 

identify individually. 

16For the Ozone Maintenance Plan, ‘‘biogenic 

sources’’ include agricultural crops; lawn grass; 

forests that produce isoprene, monoterpene, alphapinene, and other VOC emissions; and soils that 

generate trace amounts of NOX. 

the Federal vehicle and fuel standards 

are reflected in the emissions 

inventories and maintenance 

demonstration discussed later in this 

document through the use of EPA’s 

MOBILE emission factor model for onroad motor vehicles and NONROAD 

emission factor model for nonroad 

vehicles. 

We note that some of the control 

measures cited in the Clark County 

Ozone Maintenance Plan provided 

emissions reductions since 2002, and 

thus, the improvement in air quality 

since 2002 may reasonably be attributed 

to them. For instance, the new Federal 

gasoline and diesel fuel standards have 

greatly lowered the allowable sulfur 

content of these fuels and have resulted 

in lower emissions from cars and trucks, 

particularly of sulfur dioxide, 

particulate matter, and NOX. The Clark 

County Ozone Maintenance Plan (see 

Figure 4–1 from the plan) illustrates the 

ambient ozone trend in the 

nonattainment area from 2003-to 2009 

and layers the sequence of Federal 

engine and fuel standards phase-in over 

that period to support the inference that 

the standards have contributed to the 

declining trend in ambient ozone 

concentrations. 

A rough sense of the effectiveness of 

the control measures to reduce VOC and 

NOX emissions can be gained by a 

comparison between area-wide 

emissions in 2002 (a nonattainment 

year) with those in 2008 (an attainment 

year). In 2002, area-wide VOC and NOX

emissions in the Clark County 8-hour 

ozone nonattainment area were 

estimated to be approximately 318 and 

279 tons per day (summer average day), 

respectively, and in 2008, despite an 

increase in population and vehiclemiles-traveled (VMT) of approximately 

27% and 48%, respectively, area-wide 

emissions dropped significantly (to 302 

tons per day of VOC and 164 tons per 

day of NOX).12

With respect to the connection 

between the emissions reductions and 

the improvement in air quality, we also 

conclude that the air quality 

improvement in the Clark County 8- 

hour ozone nonattainment area since 

2002 is not the result of a local 

economic downturn or unusual or 

extreme weather patterns. To draw this 

conclusion, we reviewed temperature 

and precipitation data for Las Vegas 13

and did not observe any anomaly over 

the period from 2002 relative to longterm averages. We do recognize that a 

significant economic slowdown 

occurred nationally starting in 2008, 

and that the Las Vegas metropolitan area 

was more significantly affected than 

most other areas, but we note that the 

downward ozone trend had already 

been established before that time (see 

Figure 4–1 on page 4–8 of the Ozone 

Maintenance Plan). 

Thus, we find 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 the 

Federal vehicle and fuel measures and 

EPA-approved State and local control 

measures. As such, we propose to find 

that the criterion for redesignation set 

forth at CAA section 107(d)(3)(E)(iii) is 

satisfied. 

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. 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. See 

Calcagni memo, pages 8 through 13. 

Under CAA section 175A, a 

maintenance plan must demonstrate 

continued attainment of the applicable 

NAAQS for at least ten years after EPA 

approves a redesignation to attainment. 

Eight years after redesignation, the State 

must submit a revised maintenance plan 

that demonstrates continued attainment 

for the subsequent ten-year period 

following the initial ten-year 

maintenance period. To address the 

possibility of future NAAQS violations, 

the maintenance plan must contain such 

contingency provisions, that EPA deems 

necessary, to promptly correct any 

violation of the NAAQS that occurs after 

redesignation of the area. Based on our 

review and evaluation of the plan, as 

detailed below, we are proposing to 

approve the Clark County Ozone 

Maintenance Plan because we believe 

that it meets the requirements of CAA 

section 175A. 

1. Attainment Inventory 

A maintenance plan for the 1997 8- 

hour ozone standard must include an 

inventory of emissions of ozone 

precursors (VOC and NOX) in the area 

to identify a level of emissions that are 

sufficient to attain the 1997 8-hour 

ozone NAAQS. This inventory must 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. The inventory must also be 

comprehensive, including emissions 

from stationary point sources, area 

sources, nonroad mobile sources, and 

on-road mobile sources, and must be 

based on actual ‘‘ozone season data’’ 

(i.e., summertime) emissions. 

Clark County DAQ selected year 2008 

as the year for the attainment inventory 

in the Clark County Ozone Maintenance 

Plan. Year 2008 is one of the years of the 

three-year period (2007–2009) on which 

EPA made an attainment determination 

for the Clark County 8-hour ozone 

nonattainment area in 2011. See 76 FR 

17343 (March 29, 2011). The attainment 

inventory will generally be the actual 

inventory during the time period the 

area attained the standard. Thus, Clark 

County DAQ’s selection of 2008 for the 

attainment inventory is acceptable. 

Based on our review of the Clark 

County Ozone Maintenance Plan, we 

find that the emissions inventories in 

the plan are comprehensive in that they 

include estimates of VOC and NOX

emissions from all of the relevant source 

categories, which the plan divides 

among point sources,14 nonpoint 

sources,15 commercial aviation, Federal 

aviation (i.e., Nellis Air Force Base), onroad mobile, nonroad mobile, and 

biogenic 16 sources. See table 6–2 and 

pages 6–2 through 6–5 in the Ozone 

Maintenance Plan. Appendix A to the 

Ozone Maintenance Plan contains 

source-specific descriptions of emission 

calculation procedures and sources of 

input data. 

For point sources, Clark County DAQ 

based the inventory estimates on sourcereported actual 2008 emissions data but 

adjusted the reported values to reflect a 

typical summer day at each emissions 

unit within the source facilities based 

on information provided by the 


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17 ‘‘CONCEPT’’ refers to the CONsolidated 

Community Emissions Processor Tool (CONCEPT,) 

and ‘‘MV’’ refers to the motor vehicle module of the 

CONCEPT model. 18One of the principal sources of transportation 

data used to develop the emissions inventories in 

the Ozone Maintenance Plan is the Regional 

Transportation Plan 2009–2030, approved by the 

RTC in November 2008. See page 6–1 of the 

maintenance plan. 

19The market share of ethanol blend in 

summertime is assumed to be approximately 63% 

for 2008 and 100% for 2015 and 2022. 

20The emissions inventories reflect county-wide 

emissions which include both the nonattainment 

area portion of the county and the portion of the 

county designated as ‘‘unclassifiable/attainment’’ 

for the 1997 8-hour ozone NAAQS. County-wide 

emissions are acceptable to characterize emissions 

within the Clark County ozone nonattainment area 

because over 95% of the population of the county 

resides in the nonattainment area. 

facilities. For nonpoint sources, Clark 

County DAQ used several methods to 

estimate area source activity levels and 

emissions, including applying local 

activity levels, apportioning national or 

statewide activity levels to the local 

level, applying per capita emission 

factors considering county-specific 

populations and using specific method 

abstracts detailed within the submittal. 

The documentation supplied in the 

emissions inventory submittal (i.e., 

appendix A to the Ozone Maintenance 

Plan) shows how the specific emissions 

were calculated for each area source 

category. 

With respect to most nonroad mobile 

sources, Clark County DAQ used EPA’s 

nonroad emissions model 

NONROAD2008a, the current version of 

the model at the time the plan was 

created. The model includes both 

emissions factors and default county 

level population and activity data. The 

model estimates both emissions factors 

and emissions. This includes more than 

80 basic and 260 specific types of nonroad equipment, and further stratifies 

equipment by horsepower rating and 

fuel type. The model has default 

estimates, variables and factors used in 

the calculations. No local data sets were 

available for Clark County, therefore 

only model defaults were used. 

With respect to commercial and 

Federal aviation sources, Clark County 

DAQ relied on airport-specific 

emissions inventory information 

provided by the Clark County Aviation 

Department for the five commercial 

airports located within the 

nonattainment area (McCarran 

International Airport, North Las Vegas 

Airport, Henderson Executive Airport, 

Jean Airport, and Perkins Field Airport) 

and information provided by the U.S. 

Air Force for Nellis Air Force Base. 

Airport support equipment and airportrelated stationary source emissions were 

included in the airport-specific 

inventories rather than in the general 

source categories such as point sources 

or nonroad mobile. Locomotive 

emissions were estimated by Clark 

County DAQ based on fuel consumption 

within the nonattainment area by the 

Union Pacific Railroad and included in 

the aggregate emissions estimates for 

‘‘nonroad mobile.’’ To estimate biogenic 

emissions, Clark County DAQ used the 

Model of Emissions of Gasses and 

Aerosols from Nature (MEGAN) 

estimates, measured emission factors, 

and species information from completed 

surveys. 

The on-road mobile source emissions 

estimates in the Ozone Maintenance 

Plan were prepared by Clark County 

DAQ using the CONCEPT MV emissions 

model,17 EPA’s MOBILE6.2 emissions 

factors, the Regional Transportation 

Commission of Southern Nevada’s 

(RTC’s) transportation demand 

modeling results,18 and Highway 

Performance Monitoring System 

(HPMS) data from the Nevada 

Department of Transportation. 

MOBILE6.2 estimates emissions by 

vehicle class, and provides emissions 

factors for exhaust emissions; 

evaporative emissions; and brake and 

tire wear emissions. There are a total of 

28 vehicle classes used in MOBILE6.2. 

For the Ozone Maintenance Plan, Clark 

County DAQ aggregated the emissions 

factors calculated from MOBILE6.2 into 

eight vehicle classes, which are the 

same as used in MOBILE5. The VMT 

was adjusted by comparisons to 

observed vehicle counts by facility 

types, by using HPMS adjustment 

factors and to account for additional 

transit vehicles. The CONCEPT MV 

model processes detailed inputs (e.g., 

VMT mix varying by hour of day, day 

of week, and month of year) and adjusts 

speeds to account for congestion based 

on transportation demand modeling 

outputs. For areas outside of the Las 

Vegas Valley, county level VMT 

estimates based on HPMS data was used 

and no reductions associated with the 

State’s motor vehicle inspection and 

maintenance (I/M) program were 

included since vehicles in the rural 

portions of the county are not required 

to participate in the program. 

The on-road emissions estimates for 

the Ozone Maintenance Plan assumed 

the implementation of the Federal 

heavy-duty diesel rule, limits to Reid 

Vapor Pressure (RVP) of 9 pounds per 

square inch (psi) with a 1.0 psi waiver 

for ethanol-blended fuels 19 and the 

phase-in of tier 2 motor vehicle 

emission standards, and the operation of 

an enhanced vehicle I/M program in the 

urban areas of Clark County. 

Table 3 presents the VOC and NOX

emissions estimates contained in the 

Ozone Maintenance Plan for 2008 and 

also presents the plan’s projected 

emissions inventories of ozone 

precursors in an interim year (2015) and 

the maintenance plan’s horizon year 

(2022).20 Based on the estimates in 

Table 3, on-road emissions sources 

accounted for approximately 22% of the 

VOC and 42% of the NOX emissions 

generated within the 8-hour ozone 

nonattainment area in 2008. Nonroad 

sources (including nonroad equipment, 

airports, and locomotives) accounted for 

approximately 15% and 34% of the 

VOC and NOX inventory, respectively. 

Point and area source emissions 

accounted for approximately 19% and 

21% of the VOC and NOX inventory, 

respectively, while biogenic emissions 

contributed 44% of the VOC inventory 

but little (3%) to the overall NOX

inventory. 

TABLE 3—2008 AND PROJECTED 2015 AND 2022 VOC AND NOX EMISSIONS TOTAL DAILY EMISSIONS

(Tons per day, average summer weekday) a

Emission source Category 

2008 2015 2022 

VOC NOX VOC NOX VOC NOX

Point .......................................... Clark County Point ................... 1 12 1 12 1 12 

Projected Power Plant .............. 0 0 < 0 .5 3 < 0 .5 3 

Clark County NDEP Point ........ < 0 .5 17 < 0 .5 17 < 0 .5 17 

Airports ...................................... Clark County DOA .................... 3 11 3 15 3 17 

Ivanpah Airport ......................... 0 0 < 0 .5 < 0 .5 1 11 

Nellis AFB ................................. Nellis AFB ................................. 1 1 1 2 1 2 


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21A maintenance demonstration need not be 

based on ozone modeling. See Wall v. EPA, 375 

F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 

53099–53100 (October 19, 2001), and 68 FR 25413, 

25430–25432 (May 12, 2003). 

22The projected emissions were obtained from 

the 2005 Clark County Consolidated Emission 

Inventory Report (Environ, May 31, 2007, Appendix 

A). 

23Although 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 

TABLE 3—2008 AND PROJECTED 2015 AND 2022 VOC AND NOX EMISSIONS TOTAL DAILY EMISSIONS—Continued 

(Tons per day, average summer weekday) a

Emission source Category 

2008 2015 2022 

VOC NOX VOC NOX VOC NOX

Nonpoint Sources ..................... Nonpoint Sources ..................... 57 5 66 6 76 6 

Locomotive ................................ Locomotive ............................... < 0 .5 2 < 0 .5 2 < 0 .5 2 

On-road Mobile ......................... On-road Mobile ......................... 65 68 45 35 37 23 

Nonroad Mobile ........................ Nonroad Mobile ........................ 43 41 32 28 30 18 

Biogenic .................................... Biogenic .................................... 132 5 132 5 132 5 

Banked Emission Reduction 

Credits (ERCs.

DAQ ERC Bank ........................ 0 0 < 0 .5 1 < 0 .5 1 

ERCs from Mohave Generating 0 0 < 0 .5 20 < 0 .5 20 

ERCs from Reid-Gardner ......... 0 0 0 2 0 2 

Total ................................... .............................................. 302 164 282 146 282 139 

a Derived from table 1–1 of appendix A to the Ozone Maintenance Plan. For the purposes of this table, the estimates contained in the maintenance plan have been rounded to the nearest whole number (except for values greater than zero but less than 0.5, which are shown as ‘‘< 0.5’’). 

The sum of the values in each column may not equal the total shown due to rounding. DOA = Clark County Department of Aviation; AFB = Air 

Force Base; and ERCs = emission reduction credits. 

Based on our review of the emissions 

inventories (and related documentation) 

from the Ozone Maintenance Plan, we 

find that the inventories for 2008 are 

comprehensive, that the methods and 

assumptions used by Clark County 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 find 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. 

2. Maintenance Demonstration 

CAA section 175A(a) requires that the 

maintenance plan ‘‘provide for the 

maintenance of the national primary 

ambient air quality standard for such air 

pollutant in the area concerned for at 

least 10 years after the redesignation.’’ 

Generally, a state may demonstrate 

maintenance of the ozone NAAQS by 

either showing that future emissions 

will not exceed the level of the 

attainment inventory or by modeling to 

show that the future mix of sources and 

emissions rates will not cause a 

violation of the NAAQS. For areas that 

are required under the Act to submit 

modeled attainment demonstrations, the 

maintenance demonstration should use 

the same type of modeling. Calcagni 

memorandum, page 9. The Clark County 

8-hour ozone nonattainment area was 

not required to submit a modeled 

attainment demonstration, and thus, the 

Clark County Ozone Maintenance Plan 

may demonstrate maintenance based on 

a comparison of existing and future 

emissions of ozone precursors.21

Clark County DAQ used projected 

emissions 22 for point and non-point 

sources from calendar years 2008 and 

2018 to back calculate the growth 

factors for all ozone precursor emissions 

for both inventory years. The derived 

growth factors were then 

mathematically extrapolated to account 

for a 14-year (2008 through 2022) 

spread. These 2022 growth factors were 

then multiplied by the 2008 actual 

emissions to produce the 2022 projected 

point source emissions. An interim year 

(2015) projected emissions inventory is 

also included. The 2015 emissions were 

calculated using half of the growth 

value of the 2022 projections. 

Corrections for rule effectiveness were 

not applied to these projected 

emissions. On-road emissions were 

estimated for the 2008 base year and for 

projection years 2015 and 2022 and 

reflect a 26% increase in VMT from 

2008 to 2015 and a 63% increase in 

VMT from 2008 to 2022 based on RTC 

projections. See table 6–1 in the Ozone 

Maintenance Plan. 

In addition to accounting for areawide growth trends, Clark County DAQ 

added emissions from specific projects 

that are expected to become operational 

during the maintenance period, 

including the Nellis Air Force Base F– 

35 beddown project, a new power plant, 

a new airport (Ivanpah), and new 

heliport (Sloan), in the future-year 

emissions inventories, and also added 

in emissions reduction credits (ERCs) 

from certain stationary sources in the 

event that the ERCs are used for the 

purposes of issuing permits for new or 

modified stationary sources in the air 

quality planning area. We have 

reviewed the methods and assumptions, 

as described in connection with the 

attainment inventory, that Clark County 

DAQ used to project emissions to 2015 

and 2022 for the various source 

categories and find them to be 

reasonable. 

Table 3 compares the VOC and NOX

emissions estimated for the Clark 

County 8-hour ozone nonattainment 

area for 2008 with those for 2015 and 

2022 by source category. The projected 

VOC and NOX emissions show that VOC 

and NOX emissions would remain well 

below the attainment levels throughout 

the 10-year maintenance period and 

thereby adequately demonstrating 

maintenance through that period. 

3. Monitoring Network 

Continued ambient monitoring of an 

area is generally required over the 

maintenance period. As discussed in 

section V.A of this document, ozone is 

currently monitored by Clark County 

DAQ at ten sites within the Clark 

County 8-hour ozone nonattainment 

area. In the Ozone Maintenance Plan 

(see page 6–11 of the plan), Clark 

County DAQ indicates its intention to 

continue operation of an air quality 

monitoring network to verify continued 

attainment of the 1997 8-hour ozone 

NAAQS.23 The Clark County Ozone 


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Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Proposed Rules 67611 

requirements in 40 CFR part 58 (‘‘Ambient Air 

Quality Surveillance’’). 

24EPA’s requirements for annual review of 

monitoring networks are no longer codified at 40 

CFR 58.20(d), but are now found at 40 CFR 58.10. 

Maintenance Plan also notes that Clark 

County DAQ’s SLAMS air quality 

monitoring system (which includes 

ambient ozone monitoring) will be 

reviewed annually pursuant to 40 CFR 

58.20(d) to determine whether the 

system continues to meet the applicable 

monitoring objectives.24 We find the 

County’s commitment for continued 

ambient ozone monitoring as set forth in 

the Ozone Maintenance Plan to be 

acceptable. 

4. Verification of Continued Attainment 

NDEP and the Clark County Board of 

County Commissioners have the legal 

authority to implement and enforce the 

requirements of the Ozone Maintenance 

Plan. This includes the authority to 

adopt, implement and enforce any 

emission control contingency measures 

determined to be necessary to correct 

ozone NAAQS violations. To verify 

continued attainment, Clark County 

DAQ commits in the Ozone 

Maintenance Plan to the continued 

operation of an ozone monitoring 

network that meets EPA ambient air 

quality surveillance requirements. 

Second, the transportation conformity 

process, which would require a 

comparison of on-road motor vehicle 

emissions that would occur under new 

or amended regional transportation 

plans and programs with the MVEBs in 

the Ozone Maintenance Plan, represents 

another means by which to verify 

continued attainment of the 1997 8-hour 

ozone NAAQS in the Clark County 8- 

hour ozone area given the relative 

importance of motor vehicle emissions 

to the overall emissions inventories of 

ozone precursors. See page 6–13 of the 

Ozone Maintenance Plan. Lastly, while 

not cited in the plan, NDEP and Clark 

County DAQ must inventory emissions 

sources and report to EPA on a periodic 

basis under 40 CFR part 51, subpart A 

(‘‘Air Emissions Reporting 

Requirements’’). These emissions 

inventory updates will provide a third 

means with which to track emissions in 

the area relative to those projected in 

the maintenance plan and thereby verify 

continued attainment of the NAAQS. 

These methods are sufficient for the 

purpose of verifying continued 

attainment. 

5. Contingency Provisions 

Section 175A(d) of the Act requires 

that maintenance plans include 

contingency provisions, as EPA deems 

necessary, to promptly correct any 

violations of the NAAQS that occur after 

redesignation of the area. Such 

provisions must include a requirement 

that the State will implement all 

measures with respect to the control of 

the air pollutant concerned which were 

contained in the SIP for the area before 

redesignation of the area as an 

attainment area. 

Under section 175A(d), contingency 

measures identified in the contingency 

plan 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 

maintenance plan should clearly 

identify the measures to be adopted, a 

schedule and procedure for adoption 

and implementation, and a specific 

timeline for action by the State. As a 

necessary part of the plan, the State 

should also identify specific indicators 

or triggers, which will be used to 

determine when the contingency 

measures need to be implemented. 

As required by section 175A of the 

CAA, Clark County DAQ has adopted a 

contingency plan to address possible 

future ozone air quality problems. See 

section 6.8 of the maintenance plan. 

Clark County DAQ commits to 

examining ambient air quality data 

within 30 days of collection to 

determine if the ozone NAAQS has been 

exceeded. The contingency plan will be 

triggered 60 days after Clark County 

DAQ confirms a violation of the 1997 8- 

hour ozone NAAQS (i.e., a design value 

equal to or greater than 0.085 ppm). 

Within 45 days of the trigger date, Clark 

County will notify EPA that it is 

evaluating potential contingency 

measures. Within 90 days of that 

notification, Clark County will send a 

report to EPA and then will initiate a 

public process to consider the 

recommended contingency measures, 

including soliciting stakeholder 

involvement and holding public 

hearings. The necessary emission 

control measures will be adopted and 

implemented no later than 18 months 

after the information report is submitted 

to EPA. 

Contingency measures contained in 

the maintenance plan are those 

emission controls or other measures that 

Clark County, the Nevada State Board of 

Agriculture, and/or the Nevada State 

Environmental Commission choose to 

adopt and implement in response to the 

contingency trigger. The contingency 

plan in the Ozone Maintenance Plan 

lists the following potential contingency 

measures that will be considered for 

adoption and implementation by the 

applicable State or County agency, but 

the plan indicates that the list is not to 

be considered exclusive: 

• Reid vapor pressure reduction (i.e., 

in gasoline sold during the summer 

ozone season; would need to be adopted 

and implemented by the Nevada State 

Board of Agriculture); 

• Inspection/maintenance program 

changes and additions (e.g., lowering 

the cutpoints for VOCs and NOX

applicable to pre-1996 vehicles; would 

need to be adopted and implemented by 

the State Environmental Commission 

and/or the State Department of Motor 

Vehicles); 

• Consumer and commercial products 

(Clark County would be responsible for 

adoption and implementation); 

• Architectural surface coatings 

(Clark County would be responsible for 

adoption and implementation); 

• Lawn and garden equipment use 

(Clark County would be responsible for 

adoption and implementation); and 

• Establish/enhance trip reduction 

programs (Clark County and the RTC 

would be responsible for adoption and 

implementation). 

Upon our review of the plan, as 

summarized above, we find that the 

contingency provisions of the Ozone 

Maintenance Plan clearly identify 

specific contingency measures, contain 

tracking and triggering mechanisms to 

determine when contingency measures 

are needed, contain a description of the 

process of recommending and 

implementing contingency measures, 

and contain specific timelines for 

action. Thus, we conclude that the 

contingency provisions of the Clark 

County Ozone Maintenance Plan are 

adequate to ensure prompt correction of 

a violation and therefore comply with 

section 175A(d) of the Act. 

6. Subsequent Maintenance Plan 

Revisions 

CAA section 175A(b) provides that 

States shall submit a SIP revision 8 

years after redesignation providing for 

maintaining the NAAQS for an 

additional 10 years. The Clark County 

Ozone Maintenance Plan provides that 

Clark County commits to prepare and 

submit a revised maintenance plan eight 

years after redesignation to attainment. 

See page 6–13 of the Ozone 

Maintenance Plan. 

7. Motor Vehicle Emissions Budgets 

Transportation conformity is required 

by section 176(c) of the CAA. Our 

transportation conformity rule (codified 

in 40 CFR part 93, subpart A) requires 

that transportation plans, programs, and 

projects conform to SIPs and establishes 

the criteria and procedures for 


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67612 Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Proposed Rules 

determining whether or not they do so. 

Conformity to the SIP means that 

transportation activities will not 

produce new air quality violations, 

worsen existing violations, or delay 

timely attainment of the national 

ambient air quality standards. 

Maintenance plan submittals must 

specify the maximum emissions of 

transportation-related VOC and NOX

emissions allowed in the last year of the 

maintenance period, i.e., the motor 

vehicle emissions budgets (MVEBs). 

(MVEBs may also be specified for 

additional years during the maintenance 

period.) The MVEBs serve as a ceiling 

on emissions that would result from an 

area’s planned transportation system. 

The MVEB concept is further explained 

in the preamble to the November 24, 

1993, transportation conformity rule (58 

FR 62188). The preamble describes how 

to establish MVEBs in the SIP and how 

to revise the MVEBs if needed. 

The submittal must also demonstrate 

that these emissions levels, when 

considered with emissions from all 

other sources, are consistent with 

maintenance of the NAAQS. In order for 

us to find these emissions levels or 

‘‘budgets’’ adequate and approvable, the 

submittal must meet the conformity 

adequacy provisions of 40 CFR 

93.118(e)(4) and (5). For more 

information on the transportation 

conformity requirement and applicable 

policies on MVEBs, please visit our 

transportation conformity Web site at: 

http://www.epa.gov/otaq/ 

stateresources/transconf/index.htm. 

EPA’s process for determining 

adequacy of a MVEB consists of three 

basic steps: (1) Providing public 

notification of a SIP submission; (2) 

providing the public the opportunity to 

comment on the MVEB during a public 

comment period; and, (3) making a 

finding of adequacy. The process for 

determining the adequacy of a 

submitted MVEB is codified at 40 CFR 

93.118. 

The Clark County Ozone Maintenance 

Plan submitted by NDEP for Clark 

County, contains new VOC and NOX

MVEBs for Clark County for 2008, 2015, 

and 2022. The availability of the SIP 

submission with MVEBs was 

announced for public comment on 

EPA’s Adequacy Web site on June 14, 

2011, at: http://www.epa.gov/otaq/ 

stateresources/tansconf/currsips.htm, 

which provided a 30-day public 

comment period. The comment period 

for this notification ended on July 14, 

2011, and EPA received no comments 

from the public. Note, however, that a 

second mechanism is also provided for 

EPA review and public comment on 

MVEBs, as described in 40 CFR 

93.118(f)(2). This mechanism provides 

for EPA’s review of the adequacy of an 

implementation plan MVEB 

simultaneously with its review and 

approval and disapproval of the 

implementation plan itself. In this 

action, EPA used the web notification 

discussed above to solicit public 

comments on the adequacy of Clark 

County’s MVEBs, but is taking comment 

on the approvability of the submitted 

MVEBs through this proposed rule. 

Clark County’s ozone maintenance 

plan contains VOC and NOX MVEBs for 

2008, 2015 and 2022. Any and all 

comments on the approvability of the 

MVEBs should be submitted during the 

comment period stated in the DATES

section of this document. 

EPA proposes to approve 2008, 2015, 

and 2022 MVEBs in the Clark County 

Ozone Maintenance Plan for 

transportation conformity purposes in 

the final rulemaking on Clark County’s 

ozone redesignation request. If EPA 

approves the MVEBs in the final 

rulemaking action, the new MVEBs 

must be used in future transportation 

conformity determinations for Clark 

County. The new MVEBs, if approved in 

the final rulemaking, will be effective on 

the date of EPA’s final rulemaking in the 

Federal Register. The existing 2008 

VOC and NOX MVEBs from the Clark 

County EPP, which EPA found adequate 

in 2009, will be replaced by these 

budgets. The applicable VOC and NOX

MVEBs for the Clark County ozone 

nonattainment area are defined in table 

4. 

TABLE 4—MOTOR VEHICLE EMISSIONS BUDGETS IN THE CLARK COUNTY OZONE MAINTENANCE PLAN a

Budget year 

VOC 

(tpd, average 

summer weekday) 

NOX

(tpd, average 

summer weekday) 

2008 ............................................................................................................................................................. 65.08 68.46 

2015 ............................................................................................................................................................. 45.32 34.69 

2022 ............................................................................................................................................................. 36.71 23.15 

aFrom Table 7–1 (page 7–1) of the Ozone Maintenance Plan. 

The MVEBs are the on-road mobile 

source VOC and NOX emissions for 

Clark County for 2008, 2015 and 2022. 

The MVEBs are compatible with the 

2008, 2015, and 2022 on-road mobile 

source VOC and NOX emissions 

included in Clark County’s 2008, 2015, 

and 2022 VOC and NOX emission 

inventories, as summarized above in 

table 3. The derivation of the MVEBs is 

thoroughly discussed in appendix A, 

chapter 7 of Clark County’s Ozone 

Maintenance Plan. Updated vehicle 

miles traveled (VMT) data from the 

Regional Transportation Commission’s 

TRANSCAD transportation demand 

model was adjusted with Highway 

Performance Monitoring System 

(HPMS) data and then combined with 

emission factors from MOBILE6 to 

estimate ozone precursor emissions. 

We note that the MVEBs in the Ozone 

Maintenance Plan for 2008 differ from 

those contained for that same year in the 

Clark County Ozone EPP, but Clark 

County DAQ has explained the 

differences stem not from a different 

approach but from changes with regard 

to the fuel parameters and updated 

vehicle activity data for 2008. 

Specifically, the MOBILE input files 

used for the Ozone Maintenance Plan 

were updated to show the use of ethanol 

in summertime with a 1.0 psi waiver, 

resulting in higher VOC emissions, and 

the VMT estimates for 2008 were 

adjusted downwards to reflect the latest 

transportation data from RTC. The net 

effect of these changes resulted in 

higher VOC emissions but lower NOX

emissions for 2008 relative to the 

corresponding estimates in the Clark 

County Ozone EPP. 

EPA is proposing to approve the 

MVEBs for 2008, 2015 and 2022 as part 

of our approval of Clark County’s Ozone 

Maintenance Plan. EPA has determined 

that the MVEB emission targets are 

consistent with emission control 

measures in the SIP and that Clark 

County can maintain attainment of the 

1997 8-hour ozone NAAQS. The details 

of EPA’s evaluation of the MVEBs for 

compliance with the budget adequacy 

criteria of 40 CFR 93.118(e) are provided 


srobinson on DSK4SPTVN1PROD with 
Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Proposed Rules 67613 

25See EPA memorandum dated October 15, 2012 

titled, ‘‘Adequacy Documentation for Motor Vehicle 

Emission Budgets in April 2011 Clark County 

Ozone Maintenance State Implementation Plan.’’ 

in a separate memorandum 25 included 

in the docket of this rulemaking. 

VI. Proposed Action and Request for 

Public Comment 

Under CAA section 110(k)(3), and for 

the reasons set forth above, EPA is 

proposing 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 state 

implementation plan (SIP). In 

connection with the Clark County 

Ozone Maintenance Plan, EPA finds 

that the maintenance demonstration 

showing how 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 proposing to approve 

the motor vehicle emissions budgets 

(MVEBs) in the Clark County Ozone 

Maintenance Plan (shown in table 4 of 

this document) because we find they 

meet the applicable transportation 

conformity requirements under 40 CFR 

93.118(e). 

Second, under CAA section 

107(d)(3)(D), we are proposing to 

approve NDEP’s request, which 

accompanied the submitted of the 

maintenance plan, to redesignate the 

Clark County 8-hour ozone 

nonattainment area to attainment for the 

1997 8-hour ozone NAAQS. We are 

doing 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 is in turn based on our proposed 

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 proposed approval as 

part of this action of the Clark County 

Ozone Maintenance Plan. 

EPA is soliciting public comments on 

the issues discussed in this document or 

on other relevant matters. We will 

accept comments from the public on 

this proposal for the next 30 days. We 

will consider these comments before 

taking final action. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

107(d)(3)(E) 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 propose to 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 proposed 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 proposed 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 has discussed the 

proposed action with the one Tribe, the 

Las Vegas Paiute Tribe, located within 

the Clark County 8-hour ozone 

nonattainment area. 

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: November 2, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–27562 Filed 11–9–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 385 and 386 

[Docket No. FMCSA–2011–0321] 

RIN 2126–AB42 

Patterns of Safety Violations by Motor 

Carrier Management 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FMCSA proposes 

amendments to its regulations that 

would enable the Agency to suspend or 

revoke the operating authority 

registration of motor carriers that have 


srobinson on DSK4SPTVN1PROD with