[Federal Register: December 15, 2003 (Volume 68, Number 240)]
[Rules and Regulations]
[Page 69611-69618]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de03-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[NV 050-0073A; FRL-7595-3]
Approval and Promulgation of Implementation Plans; State of
Nevada; Designation of Areas for Air Quality Planning Purposes; Lake
Tahoe Nevada Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On October 27, 2003, the State of Nevada requested EPA to
redesignate the Lake Tahoe Nevada ``not classified'' carbon monoxide
(CO) nonattainment area to attainment for the CO National Ambient Air
Quality Standards (NAAQS) and submitted a CO maintenance plan for the
area as a revision to the Nevada State Implementation Plan (SIP). In
this action, EPA is approving the maintenance plan and redesignating
the Lake Tahoe Nevada nonattainment area to attainment. EPA is also
determining that the maintenance plan is adequate for transportation
conformity purposes under the limited maintenance plan policy for CO.
DATES: This direct final rule is effective February 13, 2004, without
further notice, unless we receive adverse comments by January 14, 2004.
Elsewhere in this Federal Register, we are proposing approval and
soliciting written comment on this action. If adverse written comments
are received, we will withdraw the direct final rule and address the
comments received in a new final rule; otherwise no further rulemaking
will occur on this approval action.
ADDRESSES: Please address your comments to Eleanor Kaplan, Air Planning
Office (AIR-2), U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901 or e-mail to kaplan.eleanor@epa.gov, or submit comments at
http://www.regulations.gov. A copy of the State's submittal is
available for public inspection during normal business hours at EPA's
Region IX office. Please contact Eleanor Kaplan if you wish to schedule
a visit. A copy of the submittal is also available at the Nevada
Department of Conservation and Natural Resources, Division of
Environmental Protection, 333 West Nye Lane, Carson City, Nevada 89706.
FOR FURTHER INFORMATION CONTACT: Eleanor Kaplan, EPA Region IX at (415) 947-4147 or kaplan.eleanor@epa.gov
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to EPA. This supplementary information is organized
as follows.
Table of Contents
I. What Is the Purpose of This Action?
II. What Is the State's Process To Submit These Materials to EPA?
III. EPA's Evaluation of the Redesignation Request and Maintenance
Plan
A. The Area Must Have Attained the Carbon Monoxide NAAQS
B. The Area Must Have Met All Applicable Requirements Under
Section 110 and Part D
1. Section 110 Requirements
2. Part D Requirements
(a) Section 172(c)(3)--Emissions Inventory
(b) Section 172(c)(5)--New Source Review (NSR)
(c) Section 172(c)(7)--Compliance With CAA Section 110(a)(2):
Air Quality Monitoring Requirements
C. The Area Must Have a Fully Approved SIP Under Section 110(k)
of the CAA
D. The Area Must Show the Improvement in Air Quality is Due to
Permanent and Enforceable Emissions Reductions
E. The Area Must Have a Fully Approved Maintenance Plan Under
CAA Section 175A
1. Emissions Inventory--Attainment Year
2. Demonstration of Maintenance
3. Monitoring Network and Verification of Continued Attainment
4. Contingency Plan
IV. Conformity
A. How Is Transportation Conformity Demonstrated to a Limited
Maintenance Plan?
B. What Is the Adequacy Status of This Limited Maintenance Plan?
C. Are the Requirements for General Conformity Altered Under
This Limited Maintenance Plan?
V. Final Action
VI. Administrative Requirements
I. What Is the Purpose of This Action?
EPA is redesignating the Lake Tahoe, Nevada ``not classified'' CO
nonattainment area from nonattainment to attainment and approving the
maintenance plan that will keep the area in attainment for the next ten
years.
We originally designated the Lake Tahoe Basin as nonattainment for
CO under the provisions of the Clean Air Act (CAA or ``Act''), as
amended in 1977. See 43 FR 8962 (March 3, 1978). The Lake Tahoe Basin
nonattainment area (``Lake Tahoe Nevada area'') is defined by State
hydrographic area 90, which includes the southwestern corner of Washoe
County and the western-most portions of Carson City and Douglas
counties.
On November 15, 1990, the Clean Air Act Amendments of 1990 were
enacted.\1\ Under section 107(d)(1)(C) of the Act, as amended in 1990,
the Lake Tahoe Nevada area was designated nonattainment for CO by
operation of law because the area had been designated as nonattainment
before November 15, 1990. Later, we categorized the Lake Tahoe Nevada
area as an unclassified, or ``not classified'', CO nonattainment area
because there were no violations of the CO standard during the two
calendar years immediately preceding enactment of the 1990 Clean Air
Act Amendments. See 56 FR 56694, at 56798 (November 6, 1991), codified
at 40 CFR 81.329.
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\1\ Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q.
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Nonattainment areas can be redesignated to attainment after the
area has measured air quality data showing it has attained the NAAQS
and when certain planning requirements are met. Section 107(d)(3)(E) of
the CAA provides the requirements for redesignation. These are:
(i) EPA determines that the area has attained the NAAQS;
(ii) EPA has fully approved the applicable implementation plan for
the area under section 110(k) of the Act;
(iii) EPA determines that the improvement in air quality is due to
[[Page 69612]]
permanent and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan, applicable
Federal air pollution control regulations, and other permanent and
enforceable reductions;
(iv) EPA has fully approved a maintenance plan for the area as
meeting the requirements of CAA section 175A; and
(v) The State containing the area has met all requirements
applicable to the area under section 110 and part D of the CAA.
Before an area can be redesignated to attainment, all applicable
State Implementation Plan (SIP) elements must be fully approved.
II. What Is the State's Process To Submit These Materials to EPA?
The CAA requires States to follow certain procedural requirements
for submitting SIP revisions to EPA. Section 110(a)(2) of the CAA
requires that each SIP revision be adopted by the State after
reasonable notice and public hearing.
The Nevada Division of Environmental Protection (NDEP),\2\ which is
the designated air planning agency for the Lake Tahoe Nevada area,
developed the CO maintenance plan. On September 18, 2003, the State
Environmental Commission, which acts on regulatory initiatives proposed
by NDEP, held a public hearing ``video conference'' that was accessible
from NDEP offices in Reno and Las Vegas. On September 18, 2003, the
State Environmental Commission adopted the Carbon Monoxide
Redesignation Request and Limited Maintenance Plan for the Nevada Side
of the Lake Tahoe Basin. On October 27, 2003, NDEP submitted the
maintenance plan and redesignation request to EPA. EPA has determined
that the State met the requirements for reasonable notice and public
hearing under section 110(a)(2) of the CAA.
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\2\ As noted above, the Lake Tahoe Nevada area consists of parts
of three counties: Carson City, Douglas and Washoe Counties. With
respect to air pollution control, Carson City and Douglas Counties
are under NDEP's jurisdiction; Washoe County is under the
jurisdiction of the Washoe County District Health Department
(WCDHD). The WCDHD, in a letter to NDEP dated July 31, 2003, has
asked NDEP to integrate their request for redesignation with NDEP's.
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III. EPA's Evaluation of the Redesignation Request and Maintenance Plan
EPA has reviewed the State's maintenance plan and redesignation
request and is approving the maintenance plan as a revision to the
Nevada SIP and is approving the request to redesignate the area to
attainment consistent with the requirements of CAA section
107(d)(3)(E). The following is a summary of EPA's evaluation and a
description of how each requirement is met.
A. The Area Must Have Attained the Carbon Monoxide NAAQS
Section 107(d)(3)(E)(i) requires that EPA determine that the area
has attained the applicable NAAQS as a prerequisite to redesignating an
area to attainment. The primary NAAQS for CO is 9 parts per million
(ppm)(10 milligrams per cubic meter) for an 8 hour average
concentration not to be exceeded more than once per year as determined
at each monitoring site in the area. See 40 CFR 50.8 and 40 CFR part
50, appendix C. EPA considers an area as attaining the CO NAAQS when
all of the CO monitors in the area have an exceedance rate of 1.0 or
less each calendar year over a two-calendar year period. EPA's
interpretation of this requirement is that an area seeking
redesignation to attainment must show attainment of the CO NAAQS for at
least two consecutive years (see September 4, 1992, John Calcagni
policy memorandum ``Procedures for Processing Requests to Redesignate
Areas to Attainment'' (``Calcagni Memorandum'')). In addition, the area
must continue to show attainment through the date that EPA promulgates
redesignation to attainment in the Federal Register.
Nevada's redesignation request for the Lake Tahoe Nevada area is
based on valid ambient air quality data. Ambient air quality monitoring
data for calendar years 2001 through 2002 show a measured exceedance
rate of the CO NAAQS of 1.0 or less per year at all monitoring sites.
These data were collected and analyzed as required by EPA (see 40 CFR
50.8 and 40 CFR part 50, appendix C) and have been stored in EPA's Air
Quality System (AQS) database, formerly referred to as the Aerometric
Information Retrieval System (AIRS). These data have met minimum
quality assurance requirements and have been certified by the State as
being valid before being included in AQS.
Ambient air quality monitoring data at the area's two monitors for
past years, at Stateline for the years 2001 through 2002 and at Incline
Village for the years 2000 and 2001, are shown in Tables 1 and 2 below.
Table 1 shows no violations of the 8 hour CO NAAQS at the Stateline
site for the years 2001 and 2002 and a design value of 6.1 ppm. Table 2
shows no violations of the CO NAAQS at the Incline Village monitor for
the years 2000 and 2001 and a design value of 1.6 ppm. Additionally,
based on data retrieved from AQS, there have been no exceedances of the
CO standard from 2002 to the present.
Table 1.--CO Design Value for the Lake Tahoe Nevada Area for 2001 and
2002 From Data Collected at Stateline Monitor at Harvey's Resort Hotel
------------------------------------------------------------------------
Federal
Year 1st High 2nd High exceedances
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2001................................ 3.7 3.6 0
2002................................ 8.8 6.1 0
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Table 2.--CO Design Value for the Lake Tahoe Nevada Area for 2000 and
2001 From Data Collected at Incline Village
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Federal
Year 1st High 2nd High exceedances
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2000................................ 1.1 1.0 0
2001................................ 1.8 1.6 0
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Because the area has complete quality assured data showing no
exceedance of the standard over at least two consecutive years (2001
and 2002), and has not violated the standard since that time, the area
has met the first statutory criterion for designating a nonattainment
area to attainment.
B. The Area Must Have Met All Applicable Requirements Under Section 110
and Part D
Section 107(d)(3)(E)(v) requires that an area must meet all
applicable requirements under section 110 and part D of the CAA. EPA
interprets this requirement to mean the State must meet all
requirements that applied to the area prior to, or at the time of, the
submission of a complete redesignation request.
1. Section 110 Requirements
Section 110(a)(2) of the Act contains the general requirements for
State Implementation Plans (SIPs) (i.e., enforceable emission limits,
ambient monitoring, permitting of new sources, adequate funding, etc.)
Over the years we have approved Nevada's SIP as meeting the basic
requirements of CAA section 110(a)(2).
2. Part D Requirements
Part D (of title I of the Act) contains general provisions that
apply to all nonattainment plans and certain sections that apply to
specific pollutants. Before the Lake Tahoe
[[Page 69613]]
Nevada ``not classified'' CO nonattainment area may be redesignated to
attainment, the State must have fulfilled the applicable requirements
of part D of the Act.
Under part D, an area's classification indicates the requirements
to which it is subject. Subpart 1 to part D sets forth the basic
nonattainment requirements applicable to all nonattainment areas,
classified as well as not classified. However, the Act did not specify
how the requirements of subpart 1 of part D (specifically, those under
section 172(c) of the Act) apply to ``not classified'' nonattainment
areas for CO. EPA has interpreted the requirements for those areas in
the General Preamble to Title I of the Clean Air Act Amendments of
1990. See 57 FR 13498 at 13535 (April 16, 1992). According to this
guidance, requirements for Lake Tahoe Nevada as a ``not classified''
nonattainment area for CO include the preparation and submittal of an
emissions inventory as a SIP revision, adoption of New Source Review
(NSR) programs meeting the requirements of section 173 as amended, and
programs meeting the applicable monitoring requirements of section 110.
The General Preamble also states that certain reasonably available
control measures (RACM) beyond what may already be required in the SIP,
reasonable further progress (RFP) and attainment demonstration
requirements are not applicable to ``not classified'' CO nonattainment
areas. See 57 FR 13498 at 13535 (April 16, 1992). Also, we interpret
subpart 3 of part D, which contains specific requirements for moderate
and above CO nonattainment areas, to be inapplicable to ``not
classified'' CO nonattainment areas. See 57 FR 13498 at 13535 (April
16, 1992).
The remaining applicable requirements of section 172 are discussed
below.
(a) Section 172(c)(3)--Emissions Inventory
Section 172(c)(3) of the CAA requires a comprehensive, accurate,
current inventory of all actual emissions from all sources. Nevada
included a CO emission inventory for the Lake Tahoe Nevada area in the
submitted maintenance plan for calendar year 2001. This year
corresponds to the year used in calculating the design value contained
in the SIP and represents emissions that contributed to the design
value in the plan. The design value shows that the area attains the CO
standard. Therefore, the emissions are at a level that would maintain
the standard.
The emissions inventory prepared by NDEP for the redesignation
request and maintenance plan estimates actual emissions during the peak
CO season (specifically, the month of January) from mobile sources,
including on-road and non-road vehicles. Stationary and area sources
were not included in the inventory but are considered de minimis
considering the lack of industrial activity in the area and the small
residential population. Consistent with EPA guidance, NDEP used EPA's
MOBILE6 on-road motor vehicle emissions factor model and the most
recent planning assumptions for the transportation network, including
vehicle miles traveled and vehicle speed, to estimate emissions from
on-road sources. NDEP used EPA's emissions model, NONROAD, for nonroad
sources. NDEP has provided sufficient documentation for these emissions
estimates in appendices A and B of the redesignation request and
maintenance plan.
We believe the inventory is comprehensive, accurate and current and
meets the requirements of section 172(c)(3) of the CAA.
(b) Section 172(c)(5)--New Source Review (NSR)
The Federal requirements for new source review (NSR) in
nonattainment areas are contained in section 172(c)(5). Consistent with
EPA guidance,\3\ EPA is not requiring as a prerequisite to
redesignation to attainment EPA's full approval of a part D NSR program
by Nevada for the Lake Tahoe Nevada area. Under this guidance,
nonattainment areas may be redesignated to attainment notwithstanding
the lack of a fully-approved part D NSR program, so long as the program
is not relied upon for maintenance. There are no major stationary
sources in the Lake Tahoe Nevada area nor is the predominant basis for
the economy (recreation and tourism) expected to change over the
foreseeable future. Therefore, the area will not need a part D NSR
program for CO sources to maintain the CO NAAQS.
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\3\ Memorandum from Mary D. Nichols entitled ``Part D New Source
Review (Part D NSR) Requirements for Areas Requesting Redesignation
to Attainment,'' October 14, 1994.
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EPA guidance indicates that the requirements of a part D NSR
program will be replaced by the prevention of significant deterioration
(PSD) program when an area has reached attainment and been
redesignated, provided there are assurances that PSD will become fully
effective immediately upon redesignation. As explained below, the
Federal PSD regulation will become fully effective in the Lake Tahoe
Nevada area immediately upon redesignation.
In the Lake Tahoe Nevada area, NDEP administers the stationary
source permitting program in the Carson City and Douglas counties
portion of the area, and the Washoe County Health Department (WCDHD)
administers the stationary source permitting program in the Washoe
County portion of the area. We delegated PSD permitting authority to
NDEP on May 27, 1983 and to WCDHD on April 5, 1985. NDEP and WCDHD
administered the Federal PSD program in their respective jurisdictions
under delegation agreements with EPA until March 3, 2003. On that date,
EPA withdrew delegations of authority to issue Federal PSD permits from
these two agencies as well as many other State and local air pollution
control agencies in response to significant changes in the Federal PSD
regulations published on December 31, 2002 (67 FR 80186) and the
necessity for them to adopt conforming revisions in state and local
laws and regulations. See 68 FR 19371 (April 21, 2003). However, EPA
has taken action recently to implement a partial delegation of
authority for PSD back to NDEP (see 68 FR 52837, September 8, 2003) and
anticipates doing the same for WCDHD in the near future. Because the
Lake Tahoe Nevada area is being redesignated to attainment by this
action, the Federal PSD regulations, as administered by EPA and/or NDEP
and WCDHD, will be applicable to any new or modified major sources of
CO in the area.
(c) Section 172(c)(7)--Compliance With CAA Section 110(a)(2): Air
Quality Monitoring Requirements
EPA interprets section 172(c)(7) to require ``not classified'' CO
nonattainment areas to meet the ``applicable'' air quality monitoring
requirements of section 110(a)(2) of the CAA. See 57 FR 14498 at 13535
(April 16, 1992).
The State of Nevada currently operates one SLAMS monitor for the 8
hour CO NAAQS at the southern edge of Lake Tahoe at Stateline, Nevada.
That monitor was located at the Horizon Casino Resort in Stateline for
the years 1989 through June 1999 when it was moved to a site at
Harvey's Resort Hotel also in Stateline. The State also operated a
monitor at Incline Village but that site was shut down in March, 2002
because the values it recorded were very low.
The State of Nevada operates a monitoring network (including the CO
monitoring station at Stateline but also including numerous other
monitoring stations located outside the Lake Tahoe Nevada area) in
accordance with 40 CFR part 58. The State has committed to continue to
maintain that network.
[[Page 69614]]
The requirements of section 172(c)(7) are met.
C. The Area Must Have a Fully Approved SIP Under Section 110(k) of the
CAA
Section 107(d)(3)(E)(ii) requires that EPA determine that the area
has a fully approved SIP under section 110(k) of the Act. As described
below, we have concluded that the Lake Tahoe Nevada area has a fully
approved SIP.
On April 30, 1971 (36 FR 8186), pursuant to section 109 of the
Clean Air Act, as amended in 1970, EPA promulgated NAAQS for various
pollutants, including CO. Within 9 months thereafter, each State was
required by section 110 of the Act to adopt and submit to EPA a plan
which provides for the implementation, maintenance, and enforcement of
the NAAQS within each State. Nevada's original SIP was submitted on
January 28, 1972. EPA approved this original SIP submittal later that
year. See 37 FR 10842 (May 31, 1972).
Generally, SIPs were to provide for attainment of the NAAQS within
3 years after EPA approval of the plan. However, many areas of the
country did not attain the NAAQS within the statutory period. In
response, Congress amended the Act in 1977 to establish a new approach,
based on area designations, for attaining the NAAQS, and on March 3,
1978 (43 FR 8962), under paragraph 107(d)(2) of the Act, EPA
promulgated attainment status designations for all States. EPA
designated the Lake Tahoe Nevada area nonattainment for CO at that
time.
The Act, as amended in 1977, required States to revise their SIPs
by January 1979 for all designated nonattainment areas. In response, on
July 24, 1979, the State of Nevada submitted the Lake Tahoe Basin
Nonattainment Area Plan (``1979 NAP'') to EPA as a revision to the SIP.
The 1979 NAP was intended to meet the requirements of part D (plan
requirements for nonattainment areas) of the Act, as amended in 1977.
The 1979 NAP identified a number of measures for adoption, including a
motor vehicle inspection and maintenance program, traffic flow
improvements, driver advisories, and bike and pedestrian facilities.
In 1980, EPA proposed to fully approve some elements of the 1979
NAP into the Nevada SIP, such as the emissions inventories and the
demonstration of reasonable further progress (RFP), but to
conditionally approve other elements of the plan, such as the modeling,
emission reduction estimates, attainment provision, and legally adopted
measures. See 45 FR 59591 (September 10, 1980). In 1982, EPA took final
action consistent with the 1980 proposal. See 47 FR 27065 (June 23,
1982). EPA's 1982 action is codified at 40 CFR 52.1470(c)(16)(vii).
On December 9, 1982, December 16, 1982, January 28, 1983, and May
5, 1983, NDEP submitted various supplemental materials intended to
satisfy the conditions placed on the approval of the 1979 NAP. Based on
those four submittals, EPA proposed to revoke the earlier conditions
and to approve these four submittals as revisions to the Nevada SIP.
See 48 FR 52093 (November 16, 1983). In 1984, we took final action
consistent with this proposal. See 49 FR 6897 (February 24, 1984).
EPA's 1984 action is codified at 40 CFR 52.1470(c)(27); 40 CFR
52.1470(c)(28), 40 CFR 52.1470(c)(29), and 40 CFR 52.1470(c)(30).
Therefore, based on the approval into the SIP of provisions under
the Act as amended prior to 1990, our approval described below of a
maintenance plan submitted under the Act as amended in 1990, and our
approval of the State's commitment to maintain an adequate monitoring
network, EPA has determined that, at the date of this action, Nevada
has a fully approved SIP under section 110(k) for the Lake Tahoe Nevada
nonattainment area.
D. The Area Must Show the Improvement in Air Quality Is Due to
Permanent and Enforceable Emissions Reductions
Section 107(d)(3)(E)(iii) requires that EPA determine that the
improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
implementation plan and applicable Federal air pollution control
regulations and other permanent and enforceable reductions. As
described below, we have concluded that the improvement in CO levels in
the Lake Tahoe Nevada area is due to permanent and enforceable
reductions in CO emissions.
The improvement in air quality in the Lake Tahoe Nevada area is due
to implementation of measures contained in the 1979 NAP and to
implementation of the Federal Motor Vehicle Control Program. The two
control measures that comprised the attainment strategy for the Lake
Tahoe Nevada area in the 1979 NAP included traffic flow improvements
and improved pedestrian facilities, and in removing the conditions
placed on our 1982 approval of the 1979 NAP, we determined that these
two measures had been fully implemented. See the related proposed rule,
48 FR 52093 (November 16, 1983) and final rule, 49 FR 6897 (February
24, 1984).
The Federal Motor Vehicle Control Program (40 CFR part 86) has
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. In addition, the motor vehicle emission control program
enacted by California benefits Nevada as well since the two states
converge in the Lake Tahoe Basin. With these measures and programs, we
have concluded that actual enforceable emission reductions are
responsible for the air quality improvement and that the CO
concentrations in the base year (used to document attainment) are not
artificially low due to local economic downturn.
E. The Area Must Have a Fully Approved Maintenance Plan Under CAA
Section 175A
Section 107(d)(3)(E)(iv) requires that EPA fully approve a
maintenance plan for the area as meeting the requirements of section
175A of the Act as a prerequisite to redesignation. As described below,
we are approving the maintenance plan for the Lake Tahoe Nevada area in
this action.
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
We have interpreted this section of the Act to require, in general, the
following core provisions in maintenance plans: attainment inventory,
maintenance demonstration, monitoring network, verification of
continued attainment, and contingency plan. See Calcagni Memorandum,
September 4, 1992. The purpose of a maintenance plan is to provide for
the maintenance of the applicable NAAQS for at least 10 years after
redesignation.
For areas such as Lake Tahoe Nevada that are utilizing EPA's
limited maintenance plan approach, as detailed in the EPA guidance
memorandum, ``Limited Maintenance Plan Option for Nonclassifiable CO
Nonattainment Areas'' from Joseph Paisie, Group Leader, Integrated
Policy and Strategies Group, Office of Air Quality and Planning
Standards (OAQPS), dated October 6, 1995 (``Paisie Memorandum''), the
maintenance demonstration is considered to be satisfied for ``not
classified'' areas if the monitoring data show the design value is at
or below 7.65 ppm, or 85 percent of the level of the 8-hour CO NAAQS.
[[Page 69615]]
The design value must be based on the 8 consecutive quarters of data.
For such areas, there is no requirement to project emissions of air
quality over the maintenance period. EPA believes if the area begins
the maintenance period at, or below, 85% of the CO 8 hour NAAQS, the
applicability of PSD requirements, the control measures already in the
SIP, and Federal measures, should provide adequate assurance of
maintenance over the initial 10-year maintenance period. In addition,
the design value for the area must continue to be at or below 7.65 ppm
until the time of final EPA action on the redesignation. The method for
calculating the design value is presented in the June 18, 1990, EPA
guidance memorandum entitled ``Ozone and Carbon Monoxide Design Value
Calculations'', from William G. Laxton, Director of the OAQPS Technical
Support Division, to Regional Air Directors.
Eight years after the redesignation, the State must submit a
revised maintenance plan which demonstrates continued maintenance of
the CO NAAQS for an additional 10 years following the initial ten-year
maintenance period. To address the possibility of future NAAQS
violations, the maintenance plan must contain contingency measures,
with a schedule for implementation adequate to assure prompt correction
of any air quality problems. The Lake Tahoe Nevada redesignation
request and maintenance plan addressed these core provisions, and our
evaluation of these provisions follows:
1. Emissions Inventory--Attainment Year
The plan must contain an attainment year emissions inventory to
identify a level of emissions in the area which is sufficient to attain
the CO NAAQS. This inventory is to 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.
As discussed above in connection with section 172(c)(3), the Lake
Tahoe Nevada redesignation request and maintenance plan contains an
accurate, current, and comprehensive emission inventory for calendar
year 2001.
2. Demonstration of Maintenance
As described in the Paisie Memorandum, the maintenance
demonstration requirement is considered to be satisfied for ``not
classified'' CO areas if the design value for the area is equal to, or
less than 7.65 ppm. The CO design value for the Lake Tahoe Nevada is
6.1 ppm.
As assurance of maintenance, the NDEP, in an addendum to their SIP
submittal letter dated October 27, 2003 has provided projections of CO
emissions in tons per day (tpd) from on-road mobile sources for the
years 2006, 2011 and 2016 during the peak annual CO season for each
forecast year, compared to the baseline year of 2001, as shown in the
following table.
Table 3.--Projected CO Emissions From On-Road Mobile Sources Compared to
2001 Baseline Inventory
[tpd]
------------------------------------------------------------------------
Baseline year
2001 Projected 2006 Projected 2011 Projected 2016
------------------------------------------------------------------------
17.72 13.00 11.41 10.25
------------------------------------------------------------------------
The projections were calculated using EPA model MOBILE6.0, and
separate emission factors for the two roadway facility types present in
the Lake Tahoe Basin, arterial collector roads and local roads, which
is the same approach that was used in calculating the 2001 base year
inventory. The emission factors were then multiplied by future VMT
estimates for both the arterial/collector and local roadway facilities.
Based on these projections, CO emissions from on-road mobile sources
show a marked decline from 2001 to 2016 and consequently we find that
the NDEP has presented adequate evidence that the Lake Tahoe Nevada
area will continue to maintain the CO NAAQS during the maintenance
period.
3. Monitoring Network and Verification of Continued Attainment
Continued ambient monitoring of an area is required over the
maintenance period. In the maintenance plan (see page 15 of the
maintenance plan), NDEP indicates its intention to continue to operate
an air quality monitoring network consistent with 40 CFR 58 and to
maintain operation of the current CO monitor at Stateline, located at
Harvey's Resort Hotel on Highway 50. NDEP also intends to continue to
download monitoring data to EPA's AQS database.
4. Contingency Plan
Section 175A(d) of the Act requires that a maintenance plan include
contingency provisions, as necessary, to promptly correct any violation
of the NAAQS that occurs after redesignation of the area. Under section
175A(d), contingency measures 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 redesignation request and maintenance plan includes a
contingency plan. The contingency plan implementation process for the
Lake Tahoe Nevada area takes into consideration the fact that while
jurisdiction over the Lake Tahoe Basin is divided between California
and Nevada, the air quality on one side of the Lake tends to parallel
the air quality on the other side. However, the implementation of the
control measures for each side of the Basin is the responsibility of
either California or Nevada, whichever is relevant.
The Lake Tahoe Nevada contingency plan therefore has several
phases. First, the contingency plan provides for a triggering mechanism
through which NDEP will determine when a pre-violation action level is
reached. Second, the contingency plan spells out the procedures that
will be followed if the pre-violation action level is reached,
including recommendations for action, and third, the contingency plan
contains commitments from NDEP and the local jurisdictions in the Lake
Tahoe Nevada \4\ area to implement expeditiously any and all measures
necessary to achieve
[[Page 69616]]
the level of CO emissions reductions needed to maintain the CO NAAQS.
---------------------------------------------------------------------------
\4\ The following local jurisdictions have passed resolutions
promising to adhere to the provisions of the contingency plan in the
2003 Lake Tahoe Nevada Limited Maintenance Plan: the Tahoe
Metropolitan Planning Organization, the Washoe County District
Health Department and the State of Nevada Department of
Transportation, which is a participant in the Interagency
Consultation Procedures established by the Tahoe Metropolitan
Planning Organization. See appendix C of the maintenance plan.
---------------------------------------------------------------------------
The NDEP has selected two verified 8-hour average concentrations in
excess of 85% of the CO NAAQS at any one monitor site in the Lake Tahoe
Basin in any CO season (November through February) as the pre-violation
action level.
The procedures for addressing a pre-violation action level are bi-
state and multi-jurisdictional in nature. If the pre-violation action
level is reached at any one monitor in the entire Lake Tahoe Basin
(i.e., including monitors located in California as well as the monitor
at Stateline, Nevada) during the CO season, NDEP will notify the Tahoe
Regional Planning Area (TRPA) which will in turn activate the
Conformity Task Force, which consists of all of the air quality
planning agencies in the Basin, regional planning agencies, state
Departments of Transportation (DOTs) and federal agencies.
Under the direction of this Task Force, NDEP will analyze historic
and current monitoring data from the Stateline site and California's
Sandy Way site in South Lake Tahoe and will conduct studies to
determine whether the event is confined to a local hot spot or if it is
an area wide phenomenon. The Task Force will review the most recent
microscale modeling at known hot-spot locations and conduct field
studies at hot spot locations most likely to have high CO
concentrations. If it is determined that the event is confined to a
local hot spot and local transportation system improvements at that
location can be implemented promptly and will fully mitigate the
problem, the Task Force will recommend that action to the appropriate
jurisdiction. If the problem is area wide, the Task Force will examine,
prioritize and recommend general control measures, such as cleaner
burning fuel, employer-based trip reduction, non-work trip reduction,
parking supply and pricing management, high occupancy vehicle system or
transit improvements.
The implementation of the recommended contingency measures for the
Lake Tahoe Nevada area will be the responsibility of the NDEP and/or
the appropriate local jurisdiction. Both in the transmittal letter
(dated October 27, 2003) and in the plan itself, the NDEP has committed
to track CO concentrations and to adopt, submit as a SIP revision, and
implement expeditiously any and all measures to achieve the level of CO
emissions reductions needed to maintain the CO NAAQS in the event of an
exceedance of the CO NAAQS. In addition, NDEP has committed to work
with the involved jurisdictions to ensure that sufficient measures are
adopted and implemented in a timely fashion to cure the violation.
EPA finds that the contingency plan provided in the maintenance
plan is adequate to ensure prompt correction of a violation and thereby
complies with section 175A(d) of the Act.
IV. Conformity
A. How Is Transportation Conformity Demonstrated to a Limited
Maintenance Plan?
Section 176(c) of the Act defines transportation conformity as
conformity to the SIP's purpose of eliminating or reducing the severity
and number of violations of the NAAQS and achieving expeditious
attainment of such standards. The Act further defines transportation
conformity to mean that no Federal transportation activity will: (1)
Cause or contribute to any new violation of any standard in any area,
(2) increase the frequency or severity of any existing violation of any
standard in any area, or (3) delay timely attainment of any standard or
any required interim emission reductions or other milestones in any
area.
The Federal Transportation Conformity Rule, 40 CFR part 93 subpart
A, sets forth the criteria and procedures for demonstrating and
assuring conformity of transportation plans, programs and projects
which are developed, funded or approved by the U.S. Department of
Transportation, and by metropolitan planning organizations or other
recipients of funds under title 23 U.S.C. or the Federal Transit Laws
(49 U.S.C. Chapter 53). The transportation conformity rule applies
within all nonattainment and maintenance areas. As prescribed by the
transportation conformity rule, once an area has an applicable state
implementation plan with motor vehicle emissions budgets, the expected
emissions from planned transportation activities must be consistent
with (``conform to'') such established budgets for that area.
In the case of the Lake Tahoe Nevada CO limited maintenance plan,
however, the emissions budgets may be treated as essentially not
constraining for the length of the initial maintenance period because
there is no reason to expect that Lake Tahoe Nevada will experience so
much growth in that period that a violation of the CO air quality
standard would result. In other words, emissions from on-road
transportation sources need not be capped for the maintenance period
because it is unreasonable to believe that emissions from such sources
would increase to a level that would threaten the air quality in this
area for the duration of this maintenance period. Therefore, for the
Lake Tahoe Nevada CO maintenance area all federally funded and approved
transportation actions that require conformity determinations under the
transportation conformity rule can already be considered to satisfy the
regional emissions analysis and ``budget test'' requirements in 40 CFR
93.118 of the rule.
However, since Lake Tahoe Nevada is still a maintenance area,
transportation conformity determinations are still required for
transportation plans, programs and projects. Specifically, for such
determinations, transportation plans, transportation improvement
programs, and projects must still demonstrate that they are fiscally
constrained (40 CFR part 108) and must meet the criteria for
consultation and Transportation Control Measure (TCM) implementation in
the conformity rule (40 CFR 93.112 and 40 CFR 93.113, respectively). In
addition, projects in Lake Tahoe Nevada area will still be required to
meet the criteria for CO hot spot analyses (40 CFR 93.116 and 40 CFR
93.123) that must incorporate the latest planning assumptions and
models that are available.
B. What Is the Adequacy Status of This Limited Maintenance Plan?
On March 2, 1999, the United States Court of Appeals for the
District of Columbia Circuit issued a decision on EPA's third set of
transportation conformity revisions in response to a case brought by
the Environmental Defense Fund. This decision stated that a conformity
determination cannot be made using a submitted motor vehicle emission
budget until EPA makes a positive determination that the submitted
budget is adequate. In response to the court's decision, EPA issued
guidance on our adequacy process on May 14, 1999.
In accordance with our guidance and the court decision, the Lake
Tahoe Nevada maintenance plan was posted for adequacy review of the
motor vehicle emissions budget on November 10, 2003 on EPA's conformity
Web site: http://www.epa.gov/otaq/traq, (once there, click on the
``Conformity'' button, then look for ``Adequacy Review of SIP
Submissions for Conformity''). As a general rule, however, limited
maintenance plans, such as the Lake Tahoe Nevada maintenance plan, do
not include budgets. Instead, for those areas that qualify under our
limited maintenance plan policy for CO, we have concluded that the area
will
[[Page 69617]]
continue to maintain the CO NAAQS regardless of the quantity of
emissions from the on-road transportation sector, and thus there is no
need to cap emissions from the on-road transportation sector for the
maintenance period.
Therefore, EPA's adequacy review of the Lake Tahoe Nevada
maintenance plan primarily focuses on whether the area qualifies for
the applicable limited maintenance plan policy for CO. From our review,
EPA has concluded that Lake Tahoe Nevada does meet the criteria for a
limited maintenance plan, and therefore, finds the Lake Tahoe Nevada
maintenance plan adequate for conformity purposes under our limited
maintenance plan policy.
C. Are the Requirements for General Conformity Altered Under This
Limited Maintenance Plan?
No. Although the requirements to perform a regional emissions
analysis and budget test under the transportation conformity rule are
altered under a limited maintenance plan, the requirements for general
conformity are not changed. Upon today's approval of the Lake Tahoe
Nevada limited maintenance plan, the criteria and procedures set forth
in 40 CFR part 93, subpart B (Determining Conformity of General Federal
Actions to State or Federal Implementation Plans) for those federal
actions that are not covered under the transportation conformity rule
still apply.
V. Final Action
Under section 110(k)(3) of the Clean Air Act, EPA is approving the
Lake Tahoe Nevada CO maintenance plan, and under section 107(d)(3)(E)
of the Clean Air Act, EPA is redesignating the Lake Tahoe Nevada area
to attainment for the CO NAAQS. As a result, the chart in 40 CFR 81.329
entitled ``Nevada--Carbon Monoxide'' is being modified to change the
designation for the Lake Tahoe Nevada area from ``Nonattainment'' to
``Attainment,'' and to delete the ``Not Classified'' classification of
the area, effective February 13, 2004. EPA is also determining that the
maintenance plan is adequate for conformity purposes under the limited
maintenance plan policy for CO.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial revision and anticipates no
adverse comments. However, in the ``Proposed Rules'' section of today's
Federal Register, we are publishing a separate document that will serve
as the proposal to approve the SIP revision should adverse comments be
filed. This rule will be effective February 13, 2004 without further
notice unless the Agency receives adverse comments by January 14, 2004.
If EPA receives such comments, then we will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect. All public comments
received will then be addressed in a subsequent final rule based on the
proposed rule. The EPA will not institute a second comment period on
this rule. Any parties interested in commenting on this rule should do
so at this time. Please note that if EPA receives adverse comment on an
amendment, paragraph or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.
VI. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 13, 2004. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time
[[Page 69618]]
within which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action may not
be challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental regulations, Reporting
and recordkeeping requirements.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401-7671q.
Dated: November 20, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.
0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations
are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart DD--Nevada
0
2. Section 52.1470 is amended by adding paragraph (c)(45) to read as
follows:
Sec. 52.1470 Identification of plan.
* * * * *
(c) * * *
(45) The following plan was submitted on October 27, 2003, by the
Governor's designee.
(i) Incorporation by reference.
A. Carbon Monoxide Redesignation Request and Limited Maintenance
Plan for the Nevada Side of the Lake Tahoe Basin, dated October 2003,
adopted by the State Environmental Commission on September 18, 2003.
(1) Attainment year (2001) emissions inventory, monitoring network
and verification of continued attainment, and contingency plan,
including commitments to follow maintenance plan contingency procedures
by the Nevada Division of Environmental Protection, the Tahoe
Metropolitan Planning Organization, the Nevada Department of
Transportation, and the Washoe County District Health Department.
B. Letter of October 27, 2003, from the Nevada Division of
Environmental Protection, transmitting the redesignation request and
maintenance plan for the Lake Tahoe Nevada CO nonattainment area and
including a State commitment to track CO concentrations and to adopt,
submit as a SIP revision, and implement expeditiously any and all
measures to achieve the level of CO emissions reductions needed to
maintain the CO NAAQS in the event that an exceedance of the CO NAAQS
is monitored, and to work with the involved jurisdictions to ensure
that sufficient measures are adopted and implemented in a timely
fashion to prevent a violation.
C. Additional material--Addendum to the October 27, 2003 letter of
transmittal of the redesignation request and maintenance plan:
emissions projections for on-road motor vehicles through 2016.
0
Part 81 of chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart C--Section 107 Attainment Status Designations
0
2. In Sec. 81.329 the carbon monoxide table is amended by revising the
entry for the Lake Tahoe Nevada Area to read as follows:
Sec. 81.329 Nevada.
* * * * *
Nevada--Carbon Monoxide
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area --------------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lake Tahoe Nevada Area
Hydrographic Area 90 February 13, 2004................. Attainment
Carson City County
(part) Douglas County
(part) Washoe County
(part).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
* * * * *
[FR Doc. 03-30369 Filed 12-12-03; 8:45 am]
BILLING CODE 6560-50-P