Air Quality Designations and Classifications for the 8-Hour Ozone National Ambient Air Quality Standards; Las Vegas, NV Nonattainment Area

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: September 17, 2004 (Volume 69, Number 180)]
[Rules and Regulations]
[Page 55956-55963]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se04-9]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[OAR-2003-0083; FRL-7815-3]

Air Quality Designations and Classifications for the 8-Hour Ozone
National Ambient Air Quality Standards; Las Vegas, NV Nonattainment
Area

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: This rule finalizes the boundaries for the portion of Clark
County, Nevada that is designated nonattainment for the 8-hour ozone
national ambient air quality standard and designates the remaining
portions of Clark County, including portions of the Moapa River Indian
Reservation and the Fort Mojave Indian Reservation, as attainment for
the 8-hour ozone standard. In a final rule published April 30, 2004,
EPA had previously announced that all of Clark County would be
designated nonattainment for the standard. EPA subsequently deferred
the effective date of that designation to provide the State, affected
Tribes, and EPA time to determine whether an adjustment to the
boundaries of the Las Vegas nonattainment area was appropriate. Based
on additional analyses submitted by the State and the Moapa Band of
Paiutes, we conclude that the boundary of the Las Vegas nonattainment
area should be adjusted. Through this notice we are revising the
designations for Clark County to reflect these adjustments. The revised
designation defines a smaller nonattainment area around the City of Las
Vegas and designates the remainder of Clark County with the rest of the
State as ``unclassifiable/attainment.''

EFFECTIVE DATE: This final rule is effective on September 13, 2004.

ADDRESSES: The EPA has established dockets for this action under Docket
ID No. OAR-2003-0083 (Designations). All documents in the docket are
listed in the EDOCKET index at http://www.epa.gov/edocket. Although
listed in the index, some information is not publicly available, i.e.,
Confidential

[[Page 55957]]

Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in EDOCKET or in hard copy at the
Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m. Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Office of Air and Radiation Docket and Information
Center is (202) 566-1742. In addition, we have placed a copy of the
rule and a variety of materials regarding designations on EPA's
designation Web site at: http://www.epa.gov/oar/oaqps/glo/
designations and on the Tribal Web site at: http://www.epa.gov/
air/tribal. In addition, the public may inspect the rule and
technical support at the following locations:
U.S. Environmental Protection Agency, Region IX, Air Division,
Planning Office, 75 Hawthorne Street, San Francisco, California 94105.

FOR FURTHER INFORMATION CONTACT: John J. Kelly, Planning Office, Air
Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, California 94105. The telephone number is (415)
947-4151. Mr. Kelly can also be reached via electronic mail at
kelly.johnj@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What Action Is EPA Taking Today?

EPA is announcing and promulgating revised designations for areas
within Clark County, Nevada with respect to attainment or nonattainment
of the 8-hour ozone National Ambient Air Quality Standard (NAAQS). This
action modifies the designation for Clark County announced in our final
8-hour ozone designations rule published April 30, 2004. 69 FR 23858.
In that final rule we designated all of Clark County as nonattainment
for the 8-hour ozone NAAQS and provided the designation would be
effective June 15, 2004. See 69 FR at 23919-20 (revising 40 CFR
81.329). We subsequently deferred the effective date for the Clark
County designation until September 13, 2004 to allow further
consideration of the appropriate nonattainment boundary. 69 FR 34076
(June 18, 2004). With today's action, we are designating a portion of
Clark County as nonattainment for the 8-hour ozone NAAQS and the
remainder of the County with the rest of the State as ``unclassifiable/
attainment.'' The effective date of this designation is September 13,
2004.

II. What Is the Background for This Action?

On April 15, 2004, the EPA Administrator signed a final rule
announcing designations under the 8-hour ozone NAAQS. 69 FR 23875
(April 30, 2004). In that action we designated Clark County as
nonattainment and provided that this designation would become effective
on June 15, 2004.
Following that notice, the State submitted additional information
explaining that the boundaries of the area to be designated
nonattainment should be reconsidered because of the unique
circumstances that prevented the State from being able to evaluate the
appropriate boundaries and submit an informed recommendation to EPA
prior to the April 15, 2004 final 8-hour ozone designations. Letter
from Allen Biaggi, Administrator, Nevada Division of Environmental
Protection, to Michael O. Leavitt, Administrator, U.S. Environmental
Protection Agency (June 9, 2004).\1\ In the June 9, 2004 letter the
State explained that it did not have time to make an appropriate
recommendation regarding the boundaries of the nonattainment area in
Clark County because it was not discovered until late February 2004
that any portion of Nevada would be designated nonattainment.
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\1\ This letter supplements an earlier letter dated May 21,
2004, from Governor Kenny C. Guinn to Administrator Leavitt.
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Based on the unusual history of the Clark County designation \2\
and the subsequent information provided by the State, we concluded that
the relevant factors for defining a nonattainment area might support a
different boundary recommendation than the one originally submitted by
the State and that a deferral of the effective date for the designation
was reasonable to allow the State, Tribes, and EPA time to determine
whether such an adjustment was reasonable. 69 FR at 34076.
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\2\ For a detailed discussion on this history, see our June 18,
2004 deferral notice at 69 FR 34076.
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Following EPA's decision to defer the effective date, EPA has
worked closely with the State, County and Tribes to collect additional
information and analyze the appropriate boundaries for the
nonattainment area surrounding Las Vegas. We have received boundary
recommendations with detailed information and analysis from the Nevada
Division of Environmental Protection (NDEP or State) and from the Moapa
Band of Paiutes (Moapa or Tribe).\3\ Our analysis of these submittals
is described in the Technical Support Document (TSD) for today's action
and is summarized below. All of these submittals along with our TSD are
available in the docket.
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\3\ Although we did not receive submittals from the other Tribes
in Clark County, we consulted with them by phone to determine the
appropriate designation of their lands.
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III. What Are the Statutory Requirements for Designating Areas and What
Is EPA's Policy and Guidance for Determining Nonattainment Boundaries
for the 8-Hour Ozone NAAQS?

This section describes the statutory definition of nonattainment
and EPA's guidance for determining air quality attainment and
nonattainment areas for the 8-hour ozone NAAQS. In March 2000 \4\ and
July 2000 \5\ we issued guidance on how to determine the boundaries for
nonattainment areas. In that guidance, we rely on the CAA definition of
a nonattainment area in section 107(d)(1)(A)(i) as an area that is
violating an ambient standard or is contributing to a nearby area that
is violating the standard. If an area meets this definition, EPA is
obligated to designate the area as nonattainment.
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\4\ Memorandum from John S. Seitz, ``Boundary Guidance on Air
Quality Designations for the 8-Hour Ozone National Ambient Air
Quality Standards'' (March 28, 2002).
\5\ Memorandum from John S. Seitz, ``Guidance on 8-Hour Ozone
Designations for Indian Tribes'' (July 18, 2000).
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In making designations and classifications, we use the most recent
three years of monitoring data (i.e., 2001-2003), although other
relevant years of data may be used in certain circumstances.\6\ We
treat data recorded by an ozone air quality monitor as representative
of the air quality throughout the area in which the monitor is located
and generally use the county as the basic jurisdictional unit in
determining the extent of the area represented by the monitoring data.
As a result, we typically designate the entire county and any nearby
contributing area as nonattainment if an ozone monitor was measuring a
violation of the standard based on the 2001-2003 data.
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\6\ To determine whether an area is attaining the 8-hour ozone
NAAQS, EPA considers the most recent three consecutive years of data
in accordance with 40 CFR part 50, appendix I.
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For violating monitors located in a Metropolitan Statistical Area
(MSA) or Consolidated Metropolitan Statistical Area (CMSA), however, we
typically designate the entire MSA or CMSA as nonattainment. Section
107(d)(4) of the Clean Air Act established the MSA or

[[Page 55958]]

CMSA as the presumptive boundary for nonattainment areas when we
promulgated our designation actions in 1991 for the 1-hour ozone
standard. In our guidance on determining nonattainment area boundaries
for the 8-hour ozone standard, we advised States that if a violating
monitor is located in an MSA or CMSA (as defined by the Office of
Management and Budget (OMB) in 1999), the larger of the 1-hour ozone
nonattainment area or the MSA or CMSA should be considered in
determining the boundary of a nonattainment area.\7\ The MSA or CMSA
defined by OMB generally shares economic, transportation, population,
and other linkages that are similar to air quality related factors that
produce ozone pollution. EPA concluded that using the MSA or CMSA as
the presumptive boundary ``best ensure[s]
public health protection from
the adverse effects of ozone pollution caused by population density,
traffic and commuting patterns, commercial development, and area
growth.'' Memorandum from John S. Seitz, ``Boundary Guidance on Air
Quality Designations for the 8-Hour Ozone National Ambient Air Quality
Standards'' (March 28, 2002). This boundary, however, is only
presumptive; a State may propose area boundaries smaller or larger than
the presumptive area, and EPA will consider alternative boundary
recommendations on a case-by-case basis to assess whether the
recommendation is consistent with section 107(d)(1) of the Act.\8\ Id.
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\7\ These same presumptions generally apply to the designation
of Indian country. Thus, if the Indian country has a violating
monitor or even if there is no air quality monitor but the area is
located within an MSA or CMSA with a violating monitor, it will be
presumed to be nonattainment. See Memorandum from John S. Seitz,
``Guidance on 8-Hour Ozone Designations for Indian Tribes'' (July
18, 2000).
\8\ For Indian country, a Tribe may, but is not required to,
submit a recommendation on the designation boundaries. In cases
where Tribes do not make designation recommendations, EPA, in
consultation with the Tribes, will promulgate the designation it
determines is appropriate. ``It is Agency policy that EPA `* * * in
keeping with the Federal trust responsibility, will assure that
tribal concerns and interests are considered whenever EPA's action
and/or decisions may affect reservation environments.' (EPA 1984
Indian Policy).'' Memorandum from John S. Seitz, ``Guidance on 8-
Hour Ozone Designations for Indian Tribes'' (July 18, 2000).
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Our guidance identifies the factors to be considered in making and
assessing a recommendation to designate an area other than the
presumptive area. The factors can be used to justify including
additional counties, excluding counties within the presumptive area,
or, as is the case for the Las Vegas area, defining an area that is
less than the full county. The factors were compiled based on our
experience in designating areas for the ozone standard in March 1978
and November 1991 and by looking to the CAA, section 107(d)(4), which
states that the Administrator and the Governor shall consider factors
such as population density, traffic congestion, commercial development,
industrial development, meteorological conditions, and pollution
transport. State and local agencies also had extensive input into
compiling the factors.
The factors are:
(1) Emissions and air quality in adjacent areas (including adjacent
MSAs and CMSAs),
(2) Population density and degree of urbanization including
commercial development (significant difference from surrounding areas),
(3) Monitoring data representing ozone concentrations in local
areas and larger areas (urban or regional scale),
(4) Location of emission sources (emission sources and nearby
receptors should generally be included in the same nonattainment area),
(5) Traffic and commuting patterns,
(6) Expected growth (including extent, pattern, and rate of
growth),
(7) Meteorology (weather/transport patterns),
(8) Geography/topography (mountain ranges or other air basin
boundaries),
(9) Jurisdictional boundaries (e.g., counties, air districts,
existing 1-hour nonattainment areas, Reservations, etc.),
(10) Level of control of emission sources, and
(11) Regional emissions reductions (e.g., NO_X State
Implementation Plan (SIP) Call or other enforceable regional
strategies).\9\
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\9\ See Memorandum from John S. Seitz, ``Boundary Guidance on
Air Quality Designations for the 8-Hour Ozone National Ambient Air
Quality Standards'' (March 28, 2002).
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IV. What Are the Nonattainment Boundaries Within Clark County and How
Do These Comport With EPA Policy and Guidance?

A. Initial Designation of Clark County

In July 2003, the State submitted its recommended designations for
the 8-hour ozone designations. See Letter from Allen Biaggi,
Administrator, Nevada Division of Environmental Protection to Wayne
Nastri, Regional Administrator, U.S. EPA, Region IX (July 10, 2003).
Based on the monitoring data provided by the State for the period of
2000 through 2002, the State concluded that all monitors within the
State were showing compliance with the 8-hour ozone NAAQS. On December
3, 2003, EPA agreed with the State's recommendation not to designate
any Nevada area as nonattainment for the 8-hour ozone standard. See
Letter from Wayne Nastri, Regional Administrator, U.S. EPA, Region IX,
to Hon. Kenny C. Guinn, Governor of Nevada (December 3, 2004). In that
letter EPA noted that the final designation determination would be
based on monitoring data and design values for the period 2001 through
2003, but that based on our preliminary review of the air quality
monitoring data for the 2003 ozone season, there were no areas in
Nevada violating the 8-hour ozone standard. Id.
In mid-February 2004, EPA discovered that the July 10, 2003
recommendation from the State had failed to include complete monitoring
data for 2001. This overlooked data, in combination with the new 2003
data, resulted in a 2001-2003 design value over the applicable standard
at one of the monitors (Joe Neal) in the Las Vegas area of Clark
County. EPA contacted the State and described that, by default, the MSA
that included Clark and Nye Counties in Nevada and Mohave County in
Arizona should be recommended for designation as nonattainment.
Arizona and Nevada were able to prepare an analysis that supported
the exclusion of Nye and Mohave Counties from the nonattainment area.
See Letter from Allen Biaggi, Administrator, Nevada Division of
Environmental Protection, to Wayne Nastri, Regional Administrator, U.S.
EPA, Region IX (April 12, 2004) (transmitting NDEP's report entitled
``Nevada Air Quality Designations and Boundary Recommendations for the
8-Hour Ozone National Ambient Air Quality Standard'' (March 26, 2004));
Letter from Stephen A. Owens, Director, Arizona Department of
Environmental Quality, to Wayne Nastri, Regional Administrator, U.S.
EPA, Region IX (March 26, 2004) (transmitting report entitled ``Arizona
Boundary Recommendations for the 8-Hour Ozone National Ambient Air
Quality Standard'' (March 26, 2004)). As a result, three days before
the EPA deadline for making designations, the State recommended that
Clark County be designated nonattainment.\10\ Id.

[[Page 55959]]

EPA's April 30, 2004 final rule announcing the 8-hour ozone
designations for the country designated all of Clark County as
nonattainment and the rest of State as ``unclassifiable/attainment.''
69 FR 23858, 23919-20 (April 30, 2004).
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\10\ As the State subsequently claimed, had NDEP and Clark
County discovered earlier that the County should be designated
nonattainment, it would have further analyzed the appropriate
boundaries for the nonattainment are within the 8000-square mile
County. Given the late discovery, however, the State and county
could not provide the necessary analysis and defaulted to the County
boundaries. See 69 FR 34076 (June 18, 2004) (Deferring effective
date to allow for additional anlaysis of appropriate boundary).
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B. Revised Boundary Recommendation for the Las Vegas Nonattainment Area

On August 2, 2004, the State submitted a revised recommendation for
the boundary of the nonattainment area surrounding Las Vegas. Letter
from Leo Drozdoff, Acting Administrator, NDEP, to Wayne Nastri,
Regional Administrator. U.S. EPA, Region IX. Based on an analysis of
the 11 factors outlined in EPA's guidance, the State recommended that
the following hydrographic areas \11\ within Clark County be designated
nonattainment: Ivanpah Valley (hydrographic areas 164A, 164B, 165 and
166), Eldorado Valley (hydrographic area 167), Las Vegas Valley
(hydrographic area 212), Colorado River Valley (hydrographic area 213),
Paiute Valley (hydrographic area 214), Apex Valley (hydrographic areas
216 and 217), and a portion of Moapa Valley (hydrographic area
218).\12\ The State recommended that the remainder of the County be
designated ``unclassifiable/attainment'' because these areas:
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\11\ A hydrographic area is a natural or manmade stream drainage
area or basin. These geographic areas are delineated by the Nevada
Division of Water Resources and have long been used by the State and
EPA for defining and designating air basins within the State. See 67
FR 12474 (March 19, 2002). A map of these areas is included in the
State's August 2, 2004 submittal, which can be found in the docket.
\12\ The TSD contains a map showing these hydrographic areas and
the boundary of the nonattainment area, as well as our review of the
State's analysis.
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? Are sparsely populated, containing less than two percent
of the County population;
? Were not found to impact the recommended nonattainment
area;
? Contain insignificant point and mobile sources of
emissions;
? Are separated geographically and topographically from the
recommended nonattainment area; and
? Are expected to have low regional ozone levels based on
monitoring data.
The areas recommended as part of the nonattainment area contain all
of the monitors reading elevated ozone concentrations, all of the major
transportation corridors, nearly all of the major sources of ozone
precursors in the County, and the vast majority of the County's
population. The State considered likely transport of emissions in and
out of the Las Vegas Valley and recommended including all areas with
sources that may contribute to violations of the 8-hour standard in Las
Vegas as well as surrounding areas that may be impacted by emissions
from sources in and around Las Vegas.

C. Designation Recommendation for the Moapa River Reservation

We also received recommendations from the Moapa Band of Paiutes
regarding designation of the Moapa River Indian Reservation located
within Clark County, northeast of Las Vegas. Letter from Philbert
Swain, Chairman, to John Kelly, U.S. EPA, Region IX (July 30, 2004);
Letter from Thomas R. Wood, Stoel Rives, to Paul Cort, U.S. EPA, Region
IX (Aug. 19, 2004) (transmitting supplement to the July 30, 2004
analysis). The Reservation overlaps with the hydrographic areas
recommended as nonattainment by the State (Apex and Moapa Valleys), but
the Tribe recommended designating the Reservation as attainment
because:
? Emissions at the Reservation do not significantly impact
local air quality;
? Emissions do not contribute to nonattainment in the Las
Vegas Valley; and
? The area lacks any economic integration with Las Vegas.

D. Designation of Other Reservations Within Clark County

Two other reservations are within the area recommended by the State
as the nonattainment area. Specifically, in addition to the Moapa River
Indian Reservation of the Moapa Band of Paiutes described above, the
area includes the reservation lands of the Las Vegas Paiute and a small
portion of the Fort Mojave Indian Reservation of the Fort Mojave Indian
Tribe. We did not receive recommendations from the Las Vegas Paiute or
the Fort Mojave Tribes, so we have prepared an independent assessment
in accordance with our guidance and consulted with the Tribes to
promulgate designations for these Reservations.

E. Summary of Final Designations

EPA agrees with the recommendation of the State to narrow the
nonattainment designation for the Las Vegas area to the portion of
Clark County defined by hydrographic areas 164A, 164B, 165, 166, 167,
212, 213, 214, 216, 217 and 218.\13\ We therefore will designate the
remainder of the County, as we have designated the rest of the State,
as ``unclassifiable/attainment'' for the 8-hour ozone NAAQS.
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\13\ As described above, portions of the Moapa River Indian
Reservation and the Fort Mojave Indian Reservation are located
within the hydrographic basins the State recommended EPA use to
define the nonattainment area. The State's August 2, 2004 submittal,
however, expressly ``excludes the Las Vegas Paiute Tribal Community,
and the Moapa Band of the Paiute Tribal Land'' from the recommended
nonattainment area. The State's recommendation is silent with
respect to the Fort Mojave Indian Reservation. EPA interprets the
State's submittal to leave the designation recommendations and
decisions for all Tribal lands within the County to EPA and the
respective Tribes. As such, we have independently assessed the
proper designations for these areas and presume that it is fair to
say that we ``agree'' with the recommendation of the State
independent of the designations for the Tribal areas.
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The State has taken a broad and conservative approach in defining
the portions of the 8,000-square mile County that cause of contribute
to violations of the standard in the Las Vegas Valley. These areas
include all portions of the County having any elevated concentrations
of ozone and nearly every major source in the County. The areas
recommended as part of the nonattainment area include 98 percent of the
population and all of the urbanized and projected growth areas within
the County. Finally, the area recommended for nonattainment includes
the major traffic and commuting corridors within the County.
We also agree that the remainder of the County is reasonably
excluded from the nonattainment area. It is primarily public land, with
few sources, and no urbanization or likelihood of growth. Air quality
in these surrounding areas is not impaired with respect to the 8-hour
ozone NAAQS and there is no likelihood of contribution to the ozone
problem in the Las Vegas area due to the lack of emission sources,
geographical barriers and prevailing weather patterns.\14\
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\14\ For a more detailed discussion of the 11 factors supporting
exclusion of these areas, see the TSD for today's action.
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The area recommended by the State for nonattainment overlaps with
the reservation land of three Tribes: the Moapa Band of Paiutes,
located in Moapa Valley northeast of Las Vegas; the Las Vegas Band of
Paiutes, located within the Las Vegas Valley; and the Fort Mojave
Indian Tribe, located at the southern tip of the County near the
Arizona and California state lines. As noted above, we received a
designation recommendation from the Moapa Band of Paiutes that argued
for designating the Reservation in Moapa Valley as attainment. We
consulted with the other Tribes but did not receive formal
recommendations.
In accordance with our trust responsibilities for these Tribes, we
independently evaluated whether these areas should be included or
excluded

[[Page 55960]]

from the nonattainment area within Clark County. We concluded that the
Las Vegas Paiute land, given its location within the Las Vegas Valley,
its meteorologic and economic integration with Las Vegas, and the
impact on air quality within the Reservation due to emissions from Las
Vegas, should be included in the Las Vegas 8-hour ozone nonattainment
area. The other Tribal areas, however, are reasonably excluded.\15\
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\15\ A fuller analysis of the 11 factors for excluding these
areas is provided in the TSD for this action.
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The Moapa Band of Paiutes provided significant information
demonstrating that: (1) The Reservation is sufficiently removed from
the sources of emissions in and around Las Vegas such that air quality
in the Reservation has not been adversely impacted, (2) the area is not
economically integrated with the growth of the Las Vegas area, and (3)
emissions from sources within the tribal area do not contribute to air
quality problems in or around Las Vegas due to prevailing wind
patterns. For these reasons, we agree the Moapa River Indian
Reservation should be excluded from the Las Vegas 8-hour ozone
nonattainment area.
The Fort Mojave Reservation is also reasonably excluded from the
Las Vegas 8-hour ozone nonattainment area. The Reservation is located
approximately 80 miles from the Las Vegas area in an upwind direction.
Monitors located in this portion of the State have not measured
elevated ozone concentrations. There is no likelihood of economic
integration with Las Vegas and the Reservation does not have sources
that contribute to nonattainment in the Las Vegas area.

V. What Action Is EPA Taking To Designate These Portions of Clark
County?

We are revising 40 CFR 81.329 to specify the revised boundaries of
the nonattainment area within Clark County, Nevada. As explained above,
the Las Vegas nonattainment area will include hydrographic areas 164A,
164B, 165, 166, 167, 212, 213, 214, 216, 217, and 218. From this area
we are excluding that portion within the Moapa River Indian Reservation
and the Fort Mojave Indian Reservation. The remainder of Clark County,
along with these reservations, will be included with the rest of the
State as ``unclassifiable/attainment.'' EPA is making this change
without notice and comment in accordance with section 107(d)(2) of the
Clean Air Act, which exempts the promulgation of these designations
from the notice and comment provisions of the Administrative Procedure
Act.
The effective date for these designations codified in 40 CFR 81.329
will be September 13, 2004. Section 553(d) of the Administrative
Procedure Act generally provides that rulemakings shall not be
effective less than 30 days after publication except where a
substantive rule relieves a restriction or where the agency finds good
cause for an earlier date. 5 U.S.C. 553(d)(1) and (3). Without
expediting the effective date for today's action, all of Clark County
would be designated nonattainment effective September 13, 2004. This
designation could create significant confusion and potential
substantive obligations for portions of Clark County that are being
removed from the nonattainment area in today's action. Even in the
areas of Clark County that continue to be considered nonattainment in
today's action, having two effective dates will create confusion
regarding deadlines for submittals and may serve only to delay
requirements for planning. The effective date for today's action is
therefore justified under the APA because: (1) It relieves a
restriction by narrowing the boundaries of the Las Vegas nonattainment
area that would otherwise become effective on September 13, 2004; and
(2) it is in the public interest to avoid confusion and delay
associated with overlapping designations and effective dates.
As noted in our June 18, 2004 deferral action (69 FR 34076), we do
not intend to extend the deadline for state implementation plan
submission for the Las Vegas nonattainment area. EPA will address this
deadline in a subsequent action but believes it is reasonable to
require submission according to the same schedule to which the area
would be subject without the deferred effective date. Likewise, the
time by which attainment occurs should not be affected by the deferral.

VI. Final Action

The EPA is revising the 8-hour ozone designations for Clark County,
Nevada. We are defining new boundaries for the Las Vegas nonattainment
area and including the remaining portions of the County with the rest
of the State as ``unclassifiable/attainment.'' We are amending 40 CFR
81.329 to reflect these revised designations.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or Tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. Pursuant to the terms
of Executive Order 12866, it has been determined that this rule is not
a ``significant regulatory action'' because none of the above factors
applies. As such, this final rule was not formally submitted to OMB for
review.

B. Paperwork Reduction Act

This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This rule revises the nonattainment designations for Clark County,
Nevada that were promulgated on April 15, 2004. The present final rule
does not establish any new information collection burden apart from
that required by law. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information. An agency may not conduct or sponsor, and a person is not
required to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for

[[Page 55961]]

EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies the rule
will not have a significant economic impact on a substantial number of
small entities. Small entities include small businesses, small
organizations, and small governmental jurisdictions. For purposes of
assessing the impacts of today's final rule on small entities, small
entity is defined as: (1) A small business that is a small industrial
entity as defined in the U.S. Small Business Administration (SBA) size
standards (see 13 CFR part 121); (2) a small governmental jurisdiction
that is a government of a city, county, town, school district, or
special district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field. This
rule revises the boundaries of the Las Vegas 8-hour ozone nonattainment
area in Clark County, Nevada. The revision narrows the boundaries of
the nonattainment area and will not impose any new requirements on
small entities. After considering the economic impacts of today's final
rule on small entities, I certify that this rule will not have a
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements. Today's final action does not include a Federal mandate
within the meaning of UMRA that may result in expenditures of $100
million or more in any one year by either State, local, or Tribal
governments in the aggregate or to the private sector, and therefore,
is not subject to the requirements of sections 202 and 205 of the UMRA.
It does not create any additional requirements beyond those of the 8-
hour NAAQS for ozone (62 FR 38894; July 18, 1997), therefore, no UMRA
analysis is needed. In this rule, EPA is narrowing the definition of
the Las Vegas nonattainment area in Clark County, Nevada. No new
controls will be imposed as a result of this action. Thus, this Federal
action will not impose mandates that will require expenditures of $100
million or more in the aggregate in any one year.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.'' This final
rule does not have federalism implications. It will 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. The CAA establishes the scheme
whereby States take the lead in developing plans to meet the NAAQS.
This rule will not modify the relationship of the States and EPA for
purposes of developing programs to implement the NAAQS. Thus, Executive
Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
``Tribal implications'' as specified in Executive Order 13175. This
rule concerns the classification and designation of areas as attainment
or nonattainment for the 8-hour ozone standard. The CAA provides for
States to develop plans to regulate emissions of air pollutants within
their jurisdictions. The TAR gives Tribes the opportunity to develop
and implement CAA programs such as programs to attain and maintain the
8-hour ozone NAAQS, but it leaves to the discretion of the Tribe
whether to develop these programs and which programs, or appropriate
elements of a program, they will adopt.
This final rule does not have Tribal implications as defined by
Executive Order 13175. It does not have a substantial direct effect on
one or more Indian Tribes, since no Tribe has implemented a CAA program
to attain the 8-hour ozone NAAQS at this time. Furthermore, this rule
does not affect the relationship or distribution of power and
responsibilities between the Federal government and Indian Tribes. The
CAA and the TAR establish the relationship of the Federal government
and Tribes in developing plans to attain the NAAQS, and this rule does
nothing to modify that relationship. Because this rule does not have
Tribal implications, Executive Order 13175 does not apply.
Although Executive Order 13175 does not apply to this rule, EPA did
conduct outreach with Tribal representatives regarding the
designations. These discussions informed EPA about key Tribal concerns
regarding designations as the rule was under development.

[[Page 55962]]

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

Executive Order 13045: ``Protection of Children From Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. The final
rule is not subject to Executive Order 13045 because it is not
economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health risks or safety risks addressed by this rule present a
disproportionate risk to children. Nonetheless, we have evaluated the
environmental health or safety effects of the 8-hour ozone NAAQS on
children. The results of this risk assessment are contained in the
National Ambient Air Quality Standards for Ozone, Final Rule (62 FR
38855-38896, July 18, 1997; specifically, 62 FR 38854, 62 FR 38860 and
62 FR 38865).

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, ``Actions That
Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR 28355,
May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866. Information on the methodology and data
regarding the assessment of potential energy impacts is found in
Chapter 6 of U.S. EPA 2002, Cost, Emission Reduction, Energy, and
Economic Impact Assessment of the Proposed Rule Establishing the
Implementation Framework for the 8-Hour, 0.08 ppm Ozone National
Ambient Air Quality Standard, prepared by the Innovative Strategies and
Economics Group, Office of Air Quality Planning and Standards, Research
Triangle Park, NC, April 24, 2003.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by VCS bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable VCS. This action does not involve technical standards.
Therefore, EPA did not consider the use of any VCS.

J. Congressional Review Act

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. The 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 on or
before the effective date of this rule. 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). This rule
will be effective September 13, 2004.

K. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit (i) When the
agency action consists of ``nationally applicable regulations
promulgated, or final actions taken, by the Administrator,'' or (ii)
when such action is locally or regionally applicable, if ``such action
is based on a determination of nationwide scope or effect and if in
taking such action the Administrator finds and publishes that such
action is based on such a determination.'' The rule designating areas
for the 8-hour ozone standard was ``nationally applicable'' within the
meaning of section 307(b)(1) since it established designations for all
areas of the United States for the 8-hour ozone NAAQS. Since today's
final action revises one of the designations made in that nationwide
rulemaking, any petitions for review must be filed in the Court of
Appeals for the District of Columbia Circuit. At the core of the
designations rulemaking is EPA's interpretation of the definition of
nonattainment under section 107(d)(1) of the CAA. In determining which
areas should be designated nonattainment (or conversely, should be
designated ``unclassifiable/attainment''), EPA used a set of 11 factors
that it applied consistently across the United States. For the same
reasons, the Administrator also determined that the final designations
are of nationwide scope and effect for purposes of section 307(b)(1).
This is particularly appropriate because in the report on the 1977
Amendments that revised section 307(b)(1) of the CAA, Congress noted
that the Administrator's determination that an action is of
``nationwide scope or effect'' would be appropriate for any action that
has ``scope or effect beyond a single judicial circuit.'' H.R. Rep. No.
95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the
scope and effect of the designations rulemaking extend to numerous
judicial circuits since the designations apply to all areas of the
country. In these circumstances, section 307(b)(1) and its legislative
history calls for the Administrator to find the rule to be of
``nationwide scope or effect'' and for venue to be in the D.C. Circuit.
Thus, any petitions for review of this final action must be filed in
the Court of Appeals for the District of Columbia Circuit within 60
days from the date final action is published in the Federal Register.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas.

Dated: September 10, 2004.
Michael O. Leavitt,
Administrator.

? For the reasons set forth in the preamble, 40 CFR part 81 is amended as
follows:

PART 81--[AMENDED]

? 1. The authority citation for part 81 continues to read as follows:

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

Subpart C--[AMENDED]

? 2. In Sec. 81.329, the table entitled ``Nevada-Ozone (8-Hour
Standard)'' is revised to read as follows:

Sec. 81.329 Nevada.

* * * * *

[[Page 55963]]

Nevada--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation a Category/classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Las Vegas, NV:
Clark County (part)................. (\2\) Nonattainment............................ (\2\) Subpart 1.
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.b
Rest of State........................... ........... Unclassifiable/Attainment................
Carson City
Churchill County
Clark County
(part) remainder
Douglas County
Elko County
Esmeralda County
Eureka County
Humboldt County
Lander County
Lincoln County
Lyon County
Mineral County
Nye County
Pershing County
Storey County
Washoe County (Reno Area)
White Pine County
--------------------------------------------------------------------------------------------------------------------------------------------------------
a Includes Indian Country located in each county or area, except as otherwise specified.
b The use of reservation boundaries for this designation is for purposes of CAA planning only and is not intended to be a federal determination of the
exact boundaries of the reservations. Nor does the specific listing of the Tribes in this table confer, deny or withdraw Federal recognition of any of
the Tribes listed or not listed.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ The effective date is September 13, 2004.

* * * * *
[FR Doc. 04-20973 Filed 9-16-04; 8:45 am]
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