[Federal Register Volume 87, Number 140 (Friday, July 22, 2022)]
[Proposed Rules]
[Pages 43764-43772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15674]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R09-OAR-2022-0525; FRL-9961-01-R9]


Finding of Failure To Attain and Reclassification of Las Vegas 
Area as Moderate for the 2015 Ozone National Ambient Air Quality 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
determine that the Las Vegas, Nevada nonattainment area (``Las Vegas'') 
for the 2015 ozone National Ambient Air Quality Standard (NAAQS) failed 
to attain by its applicable ``Marginal'' area attainment date of August 
3, 2021. The effect of failing to attain by the attainment date is that 
Las Vegas will be reclassified by operation of law to ``Moderate'' upon 
the effective date of the final reclassification notice. Consequently, 
the Nevada Division of Environmental Protection (NDEP) must submit 
state implementation plan (SIP) revisions required to satisfy the 
statutory and regulatory requirements for Moderate areas for the 2015 
ozone NAAQS. The EPA is proposing deadlines for submission of those SIP 
revisions and implementation of the related control requirements. This 
action, if finalized as proposed, will fulfill the EPA's statutory 
obligation to determine whether the Las Vegas ozone nonattainment area 
attained the NAAQS by the attainment date.

DATES: Comments must be received on or before August 22, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0525, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from  regulations.gov. The EPA may publish any 
comment received to our public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the Web, Cloud, or other 
file sharing system). For additional submission methods, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a language other than English or if 
you are a person with disabilities who needs a reasonable accommodation 
at no cost to you, please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Karina O'Connor, Air Planning Office 
(AIR-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105; 
By phone: (775) 434-8176 or by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' means the EPA.

Table of Contents

I. Background

[[Page 43765]]

    A. What is the background for the proposed actions?
    B. Overview of Proposal
    C. What is the statutory authority for the proposed actions?
    D. How does the EPA determine whether an area has attained the 
2015 ozone standard?
II. What is the EPA proposing and what is the rationale?
    A. Evaluation of Design Value Data and Exceptional Events 
Documentation
    B. Extension of the Marginal Area Attainment Date
    C. Determination of Failure To Attain and Reclassification
    D. Moderate Area Requirements and Proposed Schedule
    1. Required Submission Elements
    a) RACM and RACT
    b) Vehicle Inspection and Maintenance (I/M)
    2. SIP Submission and Implementation Deadline
    E. Summary of Proposed Action
III. Statutory and Executive Order Reviews

I. Background

A. What is the background for the proposed actions?

    The CAA requires the EPA to establish primary and secondary NAAQS 
for certain pervasive pollutants that ``may reasonably be anticipated 
to endanger public health and welfare.'' The primary NAAQS is designed 
to protect public health with an adequate margin of safety, and the 
secondary NAAQS is designed to protect public welfare and the 
environment. The EPA has set NAAQS for six common air pollutants, 
referred to as criteria pollutants, including ozone. The NAAQS 
represent the air quality levels an area must meet to comply with the 
CAA. Ozone is a gas composed of three oxygen atoms and is created by 
chemical reactions between volatile organic compounds (VOC) and oxides 
of nitrogen (NOX) in the atmosphere in the presence of 
sunlight. Ground-level ozone can harm human health and the environment. 
Ozone exposure has been associated with increases in susceptibility to 
respiratory infections, medication use by asthmatics, doctor visits, 
and emergency department visits and hospital admissions for individuals 
with respiratory disease. Ozone exposure may also contribute to 
premature death, especially in people with heart and lung disease.
    In October 2015, the EPA strengthened the primary and secondary 
eight-hour ozone NAAQS from 0.075 parts per million (ppm) to 0.070 ppm 
(``2015 ozone NAAQS'').\1\ In accordance with section 107(d) of the 
CAA, the EPA must designate an area ``nonattainment'' if it is 
violating the NAAQS or if it is contributing to a violation of the 
NAAQS in a nearby area. With respect to the ozone NAAQS, the EPA 
further classifies nonattainment areas as ``Marginal,'' ``Moderate,'' 
``Serious,'' ``Severe,'' or ``Extreme,'' depending upon the ozone 
design value for an area.\2\ As a general matter, higher classified 
ozone nonattainment areas are subject to a greater number of, and more 
stringent, CAA planning requirements than lower classified areas but 
are allowed more time to demonstrate attainment of the ozone NAAQS.\3\
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    \1\ 80 FR 65291 (October 26, 2015).
    \2\ See CAA section 181(a)(1). For the 2015 ozone NAAQS, the 
design value at each monitoring site is the annual fourth-highest 
daily maximum 8-hour average ozone concentration, averaged over 
three years. The design value for an area is the highest design 
value among the monitoring sites in the area.
    \3\ See, generally, subpart 2 of part D of title I of the CAA.
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    Effective August 3, 2018, the EPA designated and classified the Las 
Vegas portion of Clark County as a ``Marginal'' nonattainment area for 
the 2015 ozone NAAQS.\4\ The EPA's classification of Las Vegas as a 
Marginal ozone nonattainment area established a requirement that the 
area attain the 2015 ozone NAAQS as expeditiously as practicable, but 
no later than three years from the date of designation as 
nonattainment, i.e., August 3, 2021.\5\
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    \4\ 83 FR 25776 (June 4, 2018).
    \5\ See 40 CFR 51.1303(a).
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B. Overview of Proposal

    The EPA is required to determine whether areas designated 
nonattainment for an ozone NAAQS attained the standard by the 
applicable attainment date, and to take certain steps for areas that 
failed to attain.\6\ For a concentration-based standard, such as the 
2015 ozone NAAQS,\7\ a determination of attainment is based on a 
nonattainment area's design value.\8\
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    \6\ See CAA section 181(b)(2).
    \7\ Because the 2015 primary and secondary NAAQS for ozone are 
identical, for convenience, the EPA refers to them in the singular 
as ``the 2015 ozone NAAQS'' or as ``the standard.''
    \8\ A design value is a statistic used to compare data collected 
at an ambient air quality monitoring site to the applicable NAAQS to 
determine compliance with the standard. The design value for the 
2015 ozone NAAQS is the 3-year average of the annual fourth highest 
daily maximum 8-hour average ozone concentration. The design value 
is calculated for each air quality monitor in an area and the area's 
design value is the highest design value among the individual 
monitoring sites in the area.
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    The 2015 ozone NAAQS is met at an ambient monitoring site when the 
design value does not exceed 0.070 parts per million (ppm). For areas 
classified as Marginal nonattainment for the 2015 ozone NAAQS, the 
attainment date is August 3, 2021. Because the design value is based on 
the three most recent, complete calendar years of data, attainment must 
occur no later than December 31 of the year prior to the attainment 
date (i.e., December 31, 2020, in the case of Marginal nonattainment 
areas for the 2015 ozone NAAQS). As such, the EPA's proposed 
determination is based upon the complete, quality-assured, and 
certified ozone monitoring data from calendar years 2018, 2019, and 
2020.
    On November 30, 2020, the Clark County Department of Environment 
and Sustainability (DES) submitted an initial notification for an 
intended exceptional event (EE) demonstration, and on July 1, 2021, 
submitted EE demonstrations for 2 days in 2018 and 6 days in 2020 with 
exceedances of the standard. On September 2, 2021, the Clark County DES 
submitted additional EE demonstrations for 13 days in 2018 and for 7 
days in 2020. The EPA's actions on these demonstrations affect the 
determinations of attainment by the attainment date for the Las Vegas 
area.\9\ The EE initial notifications, EE demonstrations, and the EPA's 
responses to the initial notifications are provided in the docket for 
this rulemaking.
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    \9\ CAA section 319(b) defines an exceptional event as an event 
that (i) affects air quality; (ii) is not reasonably controllable or 
preventable; (iii) is an event caused by human activity that is 
unlikely to recur at a particular location or a natural event; and 
(iv) is determined by the Administrator through the process 
established in the regulations to be an exceptional event.
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    The data used to calculate both the 2018-2020 design values and the 
2020 fourth highest daily maximum 8-hour averages can be found in the 
docket for this rulemaking.\10\ Based on this data and as explained 
further below, the EPA proposes to determine that Las Vegas did not 
attain by the attainment date because the area's 2018-2020 design value 
is greater than 0.070 ppm. Additionally, the area does not qualify for 
a 1-year extension of the attainment date because the fourth highest 
daily 8-hour average value in 2020 is greater than 0.070 ppm. If the 
EPA finalizes the determination that the Las Vegas nonattainment area 
failed to attain by the Marginal attainment date consistent with CAA 
section 181(b)(2)(A), the Las Vegas nonattainment area will be 
reclassified to Moderate by operation of law and will then be subject 
to the Moderate area requirement to attain the

[[Page 43766]]

2015 ozone NAAQS as expeditiously as practicable, but not later than 
August 3, 2024.
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    \10\ United States Environment Protection Agency, Air Quality 
System, Design Value Report, 2018-2020, Clark County, NV, dated June 
7, 2022. Note that design values reported for a given year reflect 
data from that year and the two previous years, e.g., the design 
value for 2020 reflects data from 2018-2020.
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    Once reclassified as Moderate, NDEP must submit to the EPA the SIP 
revisions that satisfy the statutory and regulatory requirements 
applicable to Moderate areas established in CAA section 182(c) and in 
the SIP Requirements Rule for the 2015 ozone NAAQS.\11\ The EPA 
proposes to establish deadlines for submitting SIP revisions for this 
reclassified area, consistent with CAA section 182(i). As discussed in 
Section II.D. of this notice, the EPA proposes that the SIP revisions 
will be due on January 1, 2023.
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    \11\ See 83 FR 62998, December 6, 2018.
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C. What is the statutory authority for the proposed actions?

    The statutory authority for the actions proposed in this notice is 
provided by the CAA, as amended (42 U.S.C. 7401 et seq.). Relevant 
portions of the CAA include, but are not necessarily limited to, CAA 
sections 181(a)(5) and 181(b)(2).
    CAA section 107(d) provides that when the EPA establishes or 
revises a NAAQS, the agency must designate areas of the country as 
nonattainment, attainment, or unclassifiable based on whether an area 
is not meeting (or contributing to air quality in a nearby area that is 
not meeting) the NAAQS, meeting the NAAQS or cannot be classified as 
meeting or not meeting the NAAQS, respectively. Subpart 2 of part D of 
title I of the CAA governs the classification, state planning, and 
emissions control requirements for any areas designated as 
nonattainment for a revised primary ozone NAAQS. In particular, CAA 
section 181(a)(1) requires each area designated as nonattainment for a 
revised ozone NAAQS to be classified at the same time as the area is 
designated based on the extent of the ozone problem in the area (as 
determined based on the area's design value). Classifications for ozone 
nonattainment areas range from ``Marginal'' to ``Extreme'' based on the 
severity of the area's air quality problem.
    CAA section 182 provides the specific attainment planning and 
additional requirements that apply to each ozone nonattainment area 
based on its classification. CAA section 182, as interpreted by the 
EPA's implementing regulations in the Code of Federal Regulations (CFR) 
at 40 CFR 51.1308 through 51.1317, also establishes the timeframes by 
which air agencies must submit and implement SIP revisions to satisfy 
the applicable attainment planning elements, and the timeframes by 
which nonattainment areas must attain the 2015 ozone NAAQS. For 
reclassified areas, CAA section 182(i) provides that the Administrator 
may adjust applicable deadlines other than attainment dates if such 
adjustment is necessary or appropriate to assure consistency among the 
required submissions.
    Section 181(b)(2)(A) of the CAA requires that within 6 months 
following the applicable attainment date, the EPA shall determine 
whether an ozone nonattainment area attained the ozone standard based 
on the area's design value as of that date. For nonattainment areas 
that the EPA determines to have not timely attained, CAA section 
181(a)(5) gives the EPA the discretion to grant a 1-year extension of 
the attainment date for qualifying areas upon application by any state. 
In the event an area fails to attain the ozone NAAQS by the applicable 
attainment date and is not granted a 1-year attainment date extension, 
CAA section 181(b)(2)(A) requires the EPA to make the determination 
that an ozone nonattainment area failed to attain the ozone standard by 
the applicable attainment date, and requires the area to be 
reclassified by operation of law to the higher of: (1) the next higher 
classification for the area, or (2) the classification applicable to 
the area's design value as of the determination of failure to 
attain.\12\ Section 181(b)(2)(B) of the CAA requires the EPA to publish 
the determination of failure to attain and accompanying 
reclassification in the Federal Register no later than 6 months after 
the attainment date, which in the case of the Las Vegas Marginal 
nonattainment area, would have been no later than February 3, 2022.
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    \12\ The Las Vegas nonattainment area would be classified to the 
next highest classification of Moderate. The area does not have a 
design value that would otherwise place it in a higher 
classification (i.e., see CAA section 181(b)(2)(A) reference to 
Extreme areas).
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    Once an area is reclassified, the state is required to submit 
certain SIP revisions in accordance with its more stringent 
classification. The SIP revisions are intended to, among other things, 
demonstrate how the area will attain the NAAQS as expeditiously as 
practicable, but no later than August 3, 2024, the Moderate area 
attainment date for the 2015 ozone NAAQS. According to CAA section 
182(i), a state with a reclassified ozone nonattainment area must 
submit the applicable attainment plan requirements ``according to the 
schedules prescribed in connection with such requirements'' in CAA 
section 182(b) for Moderate areas, but the EPA ``may adjust applicable 
deadlines (other than attainment dates) to the extent such adjustment 
is necessary or appropriate to assure consistency among the required 
submissions.''

D. How does the EPA determine whether an area has attained the 2015 
ozone standard?

    Under the EPA regulations at 40 CFR part 50, Appendix U, the 2015 
ozone NAAQS is attained at a site when the 3-year average of the annual 
fourth highest daily maximum 8-hour average ambient air quality ozone 
concentration (i.e., design value) does not exceed 0.070 ppm. When the 
design value does not exceed 0.070 ppm at each ambient air quality 
monitoring site within the area, the area is deemed to be attaining the 
ozone NAAQS. The rounding convention in Appendix U dictates that 
concentrations shall be reported in ``ppm'' to the third decimal place, 
with additional digits to the right being truncated. Thus, a computed 
3-year average ozone concentration of 0.071 ppm is greater than 0.070 
ppm and would exceed the standard, but a design value of 0.0709 is 
truncated to 0.070 and attains the 2015 ozone NAAQS.
    The EPA's determination of attainment is based upon data that have 
been collected and quality-assured in accordance with 40 CFR part 58 
and recorded in the EPA's Air Quality System (AQS) database.\13\ 
Ambient air quality monitoring data for the 3-year period preceding the 
attainment date (i.e., 2018-2020 for the Marginal area attainment date 
of August 3, 2021) must meet the data completeness requirements in 
Appendix U.\14\ The completeness requirements are met for the 3-year 
period at a monitoring site if daily maximum 8-hour average 
concentrations of ozone are available for at least 90 percent of the 
days within the ozone monitoring season, on average, for the 3-year 
period, and no single year has less than 75 percent data completeness.
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    \13\ The EPA maintains the AQS, a database that contains ambient 
air pollution data collected by the EPA, state, local, and tribal 
air pollution control agencies. The AQS also contains meteorological 
data, descriptive information about each monitoring station 
(including its geographic location and its operator) and data 
quality assurance/quality control information. The AQS data is used 
to: (1) assess air quality, (2) assist in attainment/non-attainment 
designations, (3) evaluate SIPs for non-attainment areas, (4) 
perform modeling for permit review analysis, and (5) prepare reports 
for Congress as mandated by the CAA. Access is through the website 
at https://www.epa.gov/aqs.
    \14\ See 40 CFR part 50, Appendix U, section 4(b).
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II. What is the EPA proposing and what is the rationale?

    The EPA is proposing this action to fulfill its statutory 
obligation under

[[Page 43767]]

CAA section 181(b)(2) to determine whether Las Vegas attained the 2015 
ozone NAAQS as of the attainment date of August 3, 2021.

A. Evaluation of Design Value Data and Exceptional Events Documentation

    The EPA evaluated air quality data to determine if the Las Vegas 
Marginal nonattainment area attained the 2015 ozone NAAQS by the 
attainment date of August 3, 2021 and, if the area did not attain, to 
determine if the area is eligible for a 1-year extension of the 
attainment date. The area's ozone design values for 2018-2020 are shown 
in Table 1. Based on the certified, complete data from 2018-2020, the 
design value for the area is 0.074 ppm and the 2020 4th highest daily 
maximum 8-hour average is 0.078 ppm.

        Table 1--2015 Ozone Design Values and 2020 4th Highest Daily 8-Hour Average in the Las Vegas Area
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                                                                                 2018-2020     2020 4th Highest
                          Location                              AQ site ID     Design value    daily maximum 8-
                                                                                   (ppm)      hour average (ppm)
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Paul Meyer.................................................        320030043           0.073               0.077
Walter Johnson.............................................        320030071           0.073               0.077
Palo Verde.................................................        320030073           0.067               0.067
Joe Neal...................................................        320030075           0.074               0.078
Green Valley...............................................        320030298           0.072               0.071
Jerome Mack-Ncore..........................................        320030540           0.069               0.067
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    On November 30, 2020, the Clark County DES submitted an initial 
notification for an intended EE demonstration, and on July 1, 2021, 
submitted EE demonstrations for two days in 2018 and six days in 2020 
with exceedances of the standard. On September 2, 2021, the Clark 
County DES submitted additional EE demonstrations for thirteen days in 
2018 and for seven days in 2020. The EPA's actions on these 
demonstrations affect the determination of attainment by the attainment 
date for the Las Vegas area.\15\ The EE initial notifications, EE 
demonstrations, and the EPA's responses to the initial notifications 
are provided in the docket for this rulemaking.
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    \15\ CAA section 319(b) defines an exceptional event as an event 
that (i) affects air quality; (ii) is not reasonably controllable or 
preventable; (iii) is an event caused by human activity that is 
unlikely to recur at a particular location or a natural event; and 
(iv) is determined by the Administrator through process established 
in regulation to be an exceptional event.
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    In order for the Las Vegas nonattainment area to have an attaining 
2018-2020 design value for the 2015 ozone NAAQS, the EPA would have to 
concur on most of the EE demonstrations that the Clark County DES 
submitted for 2018 and 2020. Furthermore, to qualify for an extension 
of the attainment date, the EPA would have to concur on most of the EE 
demonstrations submitted for 2020. The EPA responded to Clark County's 
EE Initial Notification submittal for intended EE demonstrations, dated 
November 20, 2020, indicating that the events described may affect a 
future regulatory decision.\16\ Because regulatory significance is 
required for EPA concurrence on an EE demonstration and subsequent 
exclusion of the event-influenced data from the design value, the EPA 
therefore determined it would evaluate the demonstrations submitted by 
Clark County under the Exceptional Events Rule (EER).\17\ In an April 
26, 2021 letter, the EPA clarified that the demonstrations for seven of 
the events, listed in Table 2, would be critical and analytically 
complex. Based on the nature of the events and the anticipated timing 
of the EPA's determination of whether the Las Vegas nonattainment area 
attained by the applicable attainment date, the EPA requested these 
demonstrations be submitted by June 1, 2021.\18\ The EPA requested the 
demonstrations for the remaining demonstrations be submitted by August 
1, 2021.\19\ The dates for submittals of the demonstrations were 
revised in a May 4, 2021 letter to be no later than July 1, 2021 and 
September 3, 2021, respectively.
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    \16\ Letter from Elizabeth J. Adams, Director, R9 Air and 
Radiation Division to Michael Sword, Air Planning Manager, Clark 
County Department of Environment and Sustainability (January 26, 
2021).
    \17\ Id.
    \18\ Letter from Elizabeth J. Adams, Director, R9 Air and 
Radiation Division to Marci Henson, Director, Clark County 
Department of Environment and Sustainability (April 26, 2021).
    \19\ Id.

 Table 2--Summary of Critical and Analytically Complex Exceptional Event
                     Demonstrations in Clark County
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                                                      Monitoring sites
          Event date              Type of event           affected
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June 19-20, 2018..............  Wildfire.........  Green Valley, Paul
                                                    Meyer, Walter
                                                    Johnson.
May 6, 2020...................  Stratospheric      Green Valley, Joe
                                 Ozone Intrusion.   Neal, Paul Meyer,
                                                    Walter Johnson.
May 9, 2020...................  Stratospheric      Paul Meyer, Walter
                                 Ozone Intrusion.   Johnson.
May 28, 2020..................  Stratospheric      Paul Meyer, Walter
                                 Ozone Intrusion.   Johnson.
June 22, 2020.................  Wildfire.........  Joe Neal, Paul Meyer,
                                                    Walter Johnson.
June 26, 2020.................  Wildfire.........  Paul Meyer.
September 2, 2020.............  Wildfire.........  Paul Meyer, Walter
                                                    Johnson.
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    The EPA started review of the EE packages by focusing on five of 
the events: June 19-20, 2018, May 6, 2020, May 9, 2020, June 22, 2020, 
and June 26, 2020. After reviewing the EE documentation, in a letter 
dated April 11, 2022, the EPA determined that Clark County DES did not 
adequately demonstrate that the exceedances for

[[Page 43768]]

these five events satisfy the requirements for exclusion of the data 
due to an exceptional event as defined under the EER.\20\
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    \20\ Letter from Elizabeth J. Adams, Director, R9 Air and 
Radiation Division to Marci Henson, Director, Clark County 
Department of Environment and Sustainability, re: EPA Review of 
Clark County Department of Environment and Sustainability 
Exceptional Event Demonstrations for the 2015 Ozone NAAQS Las Vegas 
Nevada Nonattainment Area (Apr. 11, 2022).
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    The 2007 EER and 2016 EER \21\ contain the procedural requirements 
and the criteria that the EPA uses to evaluate EE demonstrations. The 
demonstration must satisfy all of the EER criteria for the EPA to 
concur with excluding the air quality data from regulatory decisions. 
If any one of the criteria are not met, the EPA will nonconcur with the 
demonstration. In addition to the procedural requirements, the 
demonstrations must include: (1) a narrative conceptual model 
describing the event(s) causing the exceedance or violation and a 
discussion of how the emissions from the event(s) led to the exceedance 
or violation, (2) a demonstration of a clear causal relationship 
between the event and the monitored exceedance or violation, (3) 
analyses comparing the event-influenced concentration to concentrations 
at the same monitoring site at other times to support the clear causal 
relationship, (4) a demonstration that the event was both not 
reasonably controllable and not reasonably preventable, and (5) a 
demonstration that the event was a human activity unlikely to recur at 
a particular location or was a natural event.
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    \21\ The EPA promulgated the EER in 2007, pursuant to the 2005 
amendment of CAA section 319. In 2016, the EPA finalized revisions 
to the EER, which superseded the 2007 EER. The 2007 EER and 2016 EER 
revisions added sections 40 CFR 50.1(j)-(r); 50.14; and 51.930 to 
title 40 of the CFR.
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    The EPA reviewed the Clark County DES EE demonstrations for 
wildfire events that occurred on June 19-20, 2018, June 22, 2020 and 
June 26, 2020. For all three events the EPA nonconcurred based on the 
conclusion that the events do not meet the requirements in the EER 
because the demonstrations have not sufficiently shown a clear causal 
relationship between the specific events and the monitored exceedances. 
These conclusions were based on review of the evidence presented in the 
demonstrations, including meteorological information, fire emission 
information, trajectory analysis, smoke modeling data, ground level 
monitoring data, and statistical modeling analysis. More information 
about the EPA's analysis on these EE demonstrations for wildfire events 
can be found in the docket for this action.\22\
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    \22\ Letter from Elizabeth J. Adams, Director, R9 Air and 
Radiation Division to Marci Henson, Director, Clark County 
Department of Environment and Sustainability, re: EPA Review of 
Clark County Department of Environment and Sustainability 
Exceptional Event Demonstrations for the 2015 Ozone NAAQS Las Vegas 
Nevada Nonattainment Area (April 11, 2022), Enclosures: Technical 
Support Document for EPA Nonconcurrence on O3 Exceedances 
Measured in Clark County, Nevada on June 19, 2018, as a Wildfire 
Exceptional Event; Technical Support Document for EPA Nonconcurrence 
on O3 Exceedances Measured in Clark County, Nevada on 
June 22, 2020, as a Wildfire Exceptional Event; Technical Support 
Document for EPA Nonconcurrence on O3 Exceedances 
Measured in Clark County, Nevada on June 26, 2020, as a Wildfire 
Exceptional Event.
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    The EPA also reviewed the Clark County DES demonstrations for 
stratospheric ozone intrusion (SOI) events that occurred on May 6, 
2020, and May 9, 2020. The EPA nonconcurred on these events based on 
the conclusion that the information presented in the demonstrations did 
not sufficiently show a clear causal relationship between the specific 
events and the monitored exceedances of the 2015 ozone NAAQS in the Las 
Vegas nonattainment area. These conclusions were based on review of the 
evidence presented in the demonstrations including satellite imagery 
and atmospheric models, trajectory analysis, skew-T diagrams, vertical 
ozone profiles, meteorological information, ground level monitoring 
data, matching day analysis, and statistical modeling analysis. The 
information presented in the SOI event submittals supported that SOI 
events had occurred, but the weight of evidence did not support the 
finding that ozone-rich stratospheric air was transported to the 
surface in the Las Vegas nonattainment area and caused the exceedances 
of the 2015 ozone NAAQS measured at the Las Vegas area monitors. More 
information about the EPA's analysis of these EE demonstrations for SOI 
events can be found in the docket for this action.\23\
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    \23\ Letter from Elizabeth J. Adams, Director, R9 Air and 
Radiation Division to Marci Henson, Director, Clark County 
Department of Environment and Sustainability, re: EPA Review of 
Clark County Department of Environment and Sustainability 
Exceptional Event Demonstrations for the 2015 Ozone NAAQS Las Vegas 
Nevada Nonattainment Area (April 11, 2022), Enclosures: Technical 
Support Document for EPA Nonconcurrence on O3 Exceedances Measured 
in Clark County, Nevada on May 6, 2020, as a Stratospheric 
O3 Intrusion Exceptional Event; Technical Support 
Document for EPA Nonconcurrence on O3 Exceedances 
Measured in Clark County, Nevada on May 9, 2020, as a Stratospheric 
O3 Intrusion Exceptional Event.
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    Based on the EPA's nonconcurrence on five exceptional event 
demonstrations, the 2018-2020 design value for the Las Vegas area 
remains above the 2015 ozone standard, at 0.074 ppm. In the 2016 
revisions to the EER, ``regulatory significance'' was clarified to mean 
that the demonstrations affect the outcome of a regulatory action.\24\ 
Even if the EPA concurred on the additional EE demonstrations submitted 
by the Clark County DES, the design value would still be above the 
standard; therefore, the remaining exceptional events no longer have 
regulatory significance for determining that the area attained by the 
Marginal area attainment date.
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    \24\ 81 FR 68269 (October 3, 2016).
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B. Extension of Marginal Area Attainment Date

    In a letter dated September 9, 2021, the Clark County DES requested 
an extension of the Las Vegas area Marginal area attainment date; the 
letter is provided in the docket for this rulemaking.\25\ Section 
181(a)(5) of the CAA provides the EPA discretion to extend an area's 
applicable attainment date by one additional year upon application by 
any state if the state meets the two criteria under CAA section 
181(a)(5) as interpreted by the EPA in 40 CFR 51.1307. The two criteria 
are that (1) the state has complied with all requirements and 
commitments pertaining to the area in the applicable implementation 
plan; and (2) for a first attainment date extension, an area's fourth 
highest daily maximum 8-hour value for the attainment year must not 
exceed the level of the standard.\26\ Based on the EPA's nonconcurrence 
on four exceptional event demonstrations for exceedances that occurred 
in 2020, the 2020 4th highest daily maximum 8-hour average remains 
above 0.070 ppm, at 0.078 ppm; therefore the area is not be eligible 
for a one-year extension. In the 2016 revisions to the EER, 
``regulatory significance'' was clarified to mean that the 
demonstrations affect the outcome of a regulatory action.\27\ Even if 
the EPA concurred on additional EE demonstrations, the 2020 4th highest 
daily maximum 8-hour average would still be above 0.070 ppm, therefore, 
the remaining exceptional events no longer have regulatory 
significance.
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    \25\ Marci Henson, Director, Clark County DES, ``Request for a 
Determination of Attainment or One-year Extension of the 2015 Ozone 
NAAQS for the Las Vegas Valley Nonattainment Area.'' To Greg Lovato, 
Administatrator, Nevada Division of Environmental Protection, 
September 9, 2021.
    \26\ The attainment year is the calendar year corresponding with 
the final ozone season for determining attainment; ``attainment year 
ozone season'' is defined as the ozone season immediately preceding 
a nonattainment area's maximum attainment date (see 40 CFR 
51.1300(g)).
    \27\ 81 FR 68269 (October 3, 2016).

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[[Page 43769]]

C. Determination of Failure To Attain and Reclassification

    The EPA proposes to determine that the Las Vegas nonattainment area 
did not attain the 2015 ozone NAAQS by the August 3, 2021, attainment 
date and does not qualify for a 1-year attainment date extension 
because the area does not meet the two extension criteria under CAA 
section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1307. As 
discussed previously, the area has a 2018-2020 design value greater 
than 0.070 ppm.
    If we finalize our action as proposed, the Las Vegas nonattainment 
area will be reclassified to Moderate, the next higher classification, 
as provided under CAA section 181(b)(2)(A)(i) and codified at 40 CFR 
51.1303. The area is required to attain the standard ``as expeditiously 
as practicable'' but no later than 6 years after the initial 
designation as nonattainment, which in this case would be no later than 
August 3, 2024. After reclassification to Moderate, if the area attains 
the 2015 ozone NAAQS prior to the Moderate area attainment date, the 
state of Nevada may seek a Clean Data Determination, in which certain 
attainment planning SIPs would be suspended under 40 CFR 51.1318 or a 
redesignation to attainment.\28\
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    \28\ The EPA's Clean Data Policy, as codified for the 2015 ozone 
NAAQS at 40 CFR 51.1318, suspends the requirements for states to 
submit certain attainment planning SIPs such as the attainment 
demonstrations, reasonably available control measures (RACM), 
reasonable further progress (RFP), and contingency measures for so 
long as an area continues to attain the standard.
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D. Moderate Area Requirements and Proposed Schedule

    Marginal nonattainment areas that failed to attain the 2015 ozone 
NAAQS by the attainment date will be reclassified as Moderate by 
operation of law upon the effective date of the final reclassification 
notice. Each responsible state air agency must submit SIP revisions 
that satisfy the general air quality planning requirements under CAA 
section 172(c) and specific requirements for Moderate areas under CAA 
section 182(b), as interpreted and described in the final SIP 
Requirements Rule for the 2015 ozone NAAQS.\29\ This section describes 
the required Moderate area submission elements, provides additional 
discussion of the vehicle inspection and maintenance program 
requirement, and proposes a submission and implementation deadline for 
Moderate area SIP revisions.
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    \29\ See 40 CFR 51.1300 et seq.
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1. Required Submission Elements
    For each new Moderate ozone nonattainment area, the SIP revision 
requirements include: (1) an attainment demonstration (CAA section 
182(b) and 40 CFR 51.1308); (2) provisions for reasonably available 
control measures (RACM) (CAA section 172(c)(1) and 40 CFR 51.1312(c)) 
and reasonable available control technology (RACT) (CAA section 
182(b)(2) and 40 CFR 51.1312(a)-(b)); (3) reasonable further progress 
(RFP) reductions in volatile organic compounds (VOC) and/or nitrogen 
oxide (NOX) emissions in the area (CAA sections 172(c)(2) 
and 182(b)(1) and 40 CFR 51.1310); (4) contingency measures to be 
implemented in the event of failure to meet a milestone or to attain 
the standard (CAA section 172(c)(9)); (5) NOX and VOC 
emission offsets at a ratio of 1.15 to 1 for major source permits (CAA 
section 182(b)(5) and 40 CFR 51.165(a)); and, (6) a vehicle inspection 
and maintenance program, if applicable, which is discussed in the 
following section of this notice (CAA section 181(b)(4) and 40 CFR 
51.350).\30\ We are providing additional discussion in the following 
sections for these Moderate area requirements: (a) RACM and RACT; and 
(b) vehicle inspection and maintenance.
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    \30\ See also the requirements for Moderate ozone nonattainment 
areas set forth in CAA section 182(b) and the general nonattainment 
plan provisions required under CAA section 172(c).
---------------------------------------------------------------------------

a. RACM and RACT
    States must provide an analysis of--and adopt all--RACM, including 
RACT needed for purposes of meeting RFP or timely attainment of the 
ozone NAAQS. The EPA interprets the RACM provision at CAA section 
172(c) to require a demonstration that the state has adopted all 
reasonable measures (including RACT) to meet RFP requirements and to 
demonstrate attainment as expeditiously as practicable and thus that no 
additional measures that are reasonably available will advance the 
attainment date or contribute to RFP for the area.\31\ For areas 
reclassified as Moderate, such an analysis should include an evaluation 
of RACT controls for sources emitting 100 tons per year or more that 
are currently reasonably available.
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    \31\ See 80 FR 12264, 12282, March 6, 2015; and 40 CFR 1112(c).
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    The EPA has long taken the position that the statutory requirement 
for states to assess and adopt RACT for sources in ozone nonattainment 
areas classified Moderate and higher generally exists independently 
from the attainment planning requirements for such areas.\32\ In 
addition to the independent RACT requirement, states have a statutory 
obligation to apply RACM (including such reductions in emissions from 
existing sources in the area as may be obtained through implementation 
of RACT) to meet RFP requirements and to demonstrate attainment as 
expeditiously as practicable. Therefore, to the extent that a state 
adopts new or additional RACT controls to meet RFP requirements or to 
demonstrate attainment as expeditiously as practicable, those states 
must include such RACT revisions with the other SIP elements due as 
part of the attainment plan required under CAA sections 172(c) and 
182(b).
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    \32\ See Memo from John Seitz, ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard'' (1995), at 5 (explaining that Subpart 2 requirements 
linked to the attainment demonstration are suspended by a finding 
that a nonattainment area is attaining but that requirements such as 
RACT must be met whether or not an area has attained the standard); 
see also 40 CFR 51.1318 (suspending attainment demonstrations, RACM, 
RFP, contingency measures, and other attainment planning SIPs with a 
finding of attainment).
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b. Vehicle Inspection and Maintenance (I/M)
    A Basic I/M program is required for all urbanized Moderate areas 
under the 2015 ozone NAAQS. The Las Vegas nonattainment area is 
currently operating I/M programs as part of the maintenance plan for 
the 1971 carbon monoxide standard for which the area had been 
classified as Serious nonattainment and subsequently redesignated. If 
we finalize our action as proposed, the Clark County DES and NDEP would 
need to conduct and submit a performance standard modeling analysis as 
well as make any necessary program revisions as part of their Moderate 
area SIP submissions to ensure that the I/M program is operating at or 
above the Basic I/M performance standard level for the 2015 ozone 
NAAQS. The Clark County DES and NDEP may determine through the 
performance standard modeling analysis that the existing SIP-approved 
program would meet the performance standard for purposes of the 2015 
ozone NAAQS without modification. In this case, the Clark County DES 
and NDEP could submit a SIP revision with the associated performance 
modeling and a written statement certifying their determination in lieu 
of submitting new revised regulations. The applicable requirements for 
Moderate ozone nonattainment areas that are required to

[[Page 43770]]

adopt a Basic I/M program are described in sections 182(a)(2)(B), and 
182(b)(4), of the CAA and further defined in the EPA's I/M rule (40 CFR 
part 51, subpart S). The performance standard \33\ of a model Basic I/M 
program is established in the CAA and further detailed in the I/M 
rule.\34\ A more detailed description of the requirements for the SIP 
submittal demonstrating that the current I/M program meets the CAA 
requirements was included in the EPA's April 13, 2022 proposed rule for 
other 2015 ozone nonattainment areas under consideration for 
reclassification to Moderate.\35\ The I/M SIP submissions are due at 
the same time as the other Moderate area submission elements.\36\
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    \33\ An I/M performance standard is a collection of program 
design elements which defines a benchmark program to which a state's 
proposed program is compared in terms of its potential to reduce 
emissions of the ozone precursors, VOC and NOX. The EPA 
intends to provide appropriate guidance for Basic I/M programs under 
the 2015 ozone NAAQS separate from this rulemaking.
    \34\ See 40 CFR 51.352(e)). The EPA is not proposing changes to 
its I/M regulations in this notice; however, additional 
clarification in this preamble is provided to assist the state in 
understanding specific I/M program requirements due to being 
reclassified as Moderate.
    \35\ 87 FR 21842.
    \36\ 40 CFR 51.372(b)(2) states--``A SIP revision required as a 
result of a change in an area's designation or classification under 
a NAAQS for ozone, including all necessary legal authority and the 
items specified in paragraphs (a)(1) through (8) of this section, 
shall be submitted no later than the deadline for submitting the 
area's attainment SIP for the NAAQS in question.''
---------------------------------------------------------------------------

2. SIP Submission and Implementation Deadline
    On August 3, 2018, when final nonattainment designations became 
effective for the 2015 ozone NAAQS, states responsible for areas 
initially classified as Moderate were required to prepare and submit 
SIP revisions by deadlines relative to that effective date. For those 
areas, the submission deadlines ranged from 2 to 3 years after the 
effective date of designation, depending on the SIP element required 
(e.g., 2 years for the RACT SIP, and 3 years for the attainment plan 
with RACM and attainment demonstration). Initial Moderate areas were 
also required to implement RACT as expeditiously as practicable but no 
later than January 1 of the 5th year after the effective date of 
designations, i.e., January 1, 2023. However, the SIP submission 
deadlines for initial Moderate areas have passed and the EPA is 
proposing to use its discretion under CAA section 182(i) to adjust the 
SIP deadlines that would otherwise apply.\37\ The EPA recently proposed 
similar adjustments in SIP revision and RACT implementation deadlines 
for other reclassified Moderate areas in an April 13, 2022 
rulemaking.\38\
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    \37\ CAA section 182(i) provides that areas reclassified under 
CAA section 181(b)(2) shall generally meet the requirements 
associated with their new classifications ``according to the 
schedules prescribed in connection with such requirements, except 
that the Administrator may adjust any applicable deadlines (other 
than attainment dates) to the extent such adjustment is necessary or 
appropriate to assure consistency among the required submissions.''
    \38\ 87 FR 21842.
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    The EPA is proposing that the state of Nevada submit SIP revisions 
addressing all Moderate area requirements no later than January 1 of 
the 5th year after the effective date of designations, i.e., January 1, 
2023. The ``schedule prescribed in connection with'' the attainment 
planning requirements for Moderate areas is 3 years from 
designation.\39\ However, given that the Las Vegas nonattainment area 
is being reclassified rather than newly designated as a Moderate areas, 
the EPA is proposing that aligning the Las Vegas nonattainment area's 
deadline with the deadlines proposed for other reclassified areas is 
appropriate and necessary for ``consistency among the submissions'' of 
all reclassified Moderate areas across the country.
---------------------------------------------------------------------------

    \39\ See CAA section 182(i).
---------------------------------------------------------------------------

    The EPA's implementing regulations for the 2015 ozone NAAQS do not 
address SIP submission deadlines for reclassified areas, except for 
RACT SIPs. Specifically, 40 CFR 1312(a)(ii) establishes a RACT SIP 
submission deadline for areas classified Moderate or higher of either 
24 months from the reclassification effective date or a deadline 
established by the Administrator in the reclassification action. In the 
case of the potential newly reclassified Moderate area addressed in 
this proposal, a RACT SIP submission deadline of 24 months after an 
anticipated 2023 effective date would fall in 2025. Because a 2025 
deadline would exceed the applicable Moderate area maximum attainment 
date of August 3, 2024, we rejected a 24-month submission deadline and 
are instead proposing to use the Administrator's discretion under CAA 
section 182(i) to establish a January 1, 2023, SIP submission deadline 
that would apply for RACT (per 40 CFR 1312(a)(ii)) and all other 
required Moderate area SIP submissions. Our objective is to establish a 
single deadline that would not extend beyond our proposed deadline for 
implementing RACT and to provide for consistency among the required SIP 
submissions. The EPA adopted this approach previously for Marginal 
areas reclassified to Moderate for failure to timely attain the 2008 
ozone NAAQS.\40\
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    \40\ ``Final Rule--Determinations of Attainment by the 
Attainment Date, Extensions of the Attainment Date, and 
Reclassification of Several Areas for the 2008 Ozone National 
Ambient Air Quality Standards'' (81 FR 26697, 26705, May 4, 2016).
---------------------------------------------------------------------------

    As mentioned previously, we are proposing that the state must 
provide for implementation of all RACT needed for purposes of meeting 
RFP or timely attaining the ozone NAAQS as expeditiously as practicable 
but no later than January 1, 2023. The EPA's implementing regulations 
for the 2015 ozone NAAQS require that the state shall provide for 
implementation of such RACT as expeditiously as practicable, but no 
later than the start of the attainment year ozone season associated 
with the area's new attainment deadline, or January 1 of the third year 
after the associated SIP submission deadline, whichever is earlier; or 
the deadline established by the Administrator in the final action 
issuing the area reclassification.\41\
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    \41\ See 40 CFR 1312(a)(3)(ii).
---------------------------------------------------------------------------

    Because January 1 of the third year after the proposed January 1, 
2023 SIP submission deadline would fall on January 1, 2026, this date 
would exceed the applicable Moderate area maximum attainment date of 
August 3, 2024. The EPA's implementing regulations for the 2015 ozone 
NAAQS require that, for areas initially classified as Moderate or 
higher, a state shall provide for implementation of RACT as 
expeditiously as practicable but no later than January 1 of the 5th 
year after the effective date of designation, which corresponds with 
the beginning of the attainment year for initial Moderate areas 
(January 1, 2023).\42\ The modeling and attainment demonstration 
requirements for 2015 ozone NAAQS areas classified Moderate or higher 
require that a state must provide for implementation of all control 
measures needed for attainment no later than the beginning of the 
attainment year ozone season, notwithstanding any alternative deadline 
established per 40 CFR 1312.\43\ These regulations allow a comparable 
amount of time for sources to meet RACT requirements as originally 
anticipated under the 1990 CAA Amendments, with the objective that RACT 
measures be in place to influence an area's attainment year air quality 
and design value.\44\
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    \42\ See 40 CFR 51.1312(a)(3)(i).
    \43\ See 40 CFR 51.1308(d).
    \44\ See CAA section 182(b)(2).
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    The start of the ozone season varies among states and is either 
January or March for potential reclassified Moderate areas addressed in 
the April

[[Page 43771]]

13, 2022 national proposal.\45\ For this reason, the EPA rejected an 
approach that would establish variable RACT implementation deadlines 
corresponding to an area's defined ozone season starting month and 
proposed a single RACT implementation deadline for all newly 
reclassified Moderate areas corresponding with the beginning of the 
applicable attainment year, i.e., January 1, 2023. Because the start of 
the ozone season for the Las Vegas ozone nonattainment area is 
January,\46\ the January 2023 deadline is consistent with the beginning 
of the applicable attainment year for the area, is the same as the 
single RACT implementation deadline for all initial Moderate areas per 
40 CFR 51.1312(a)(3) and would require implementation of any identified 
RACT as early as possible in the attainment year to influence an area's 
air quality and 2021-2023 attainment design value. Aligning the SIP 
submission and RACT implementation deadline would also ensure that SIPs 
requiring control measures needed for attainment, including RACM, would 
be submitted no later than when those controls are required to be 
implemented. Our proposed deadline for the Las Vegas Moderate area SIP 
submissions and RACT implementation would also treat states 
consistently, in keeping with CAA section 182(i).
---------------------------------------------------------------------------

    \45\ 87 FR 21842. See also 40 CFR part 58, appendix D, section 
4.1, Table D-3).
    \46\ Id., at Table D-3.
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    The EPA requests comment on our proposal to align the SIP 
submission deadline and RACT implementation deadline for the Las Vegas 
nonattainment area, if reclassified to Moderate, and requiring that any 
RACT needed for meeting RFP or timely attainment of the 2015 ozone 
NAAQS be implemented as expeditiously as practicable but no later than 
the beginning of the applicable attainment year, i.e., January 1, 2023.
    With respect to the implementation deadline for any revisions to 
the current I/M program that may be necessary, if Clark County DES and 
NDEP wish to use emissions reductions from their revised I/M program 
for the 2015 ozone NAAQS, they would need to have such revisions fully 
established and start testing as expeditiously as practicable but no 
later than the beginning of the applicable attainment year, i.e., 
January 1, 2023. However, we also request comment on two alternative 
implementation deadlines for the I/M program revisions (whose emission 
reductions are not intended to be relied upon for attainment or RFP) 
that are consistent with the EPA's proposed action for other areas, for 
new and revised Basic I/M programs: the first to allow newly required 
I/M programs to be fully implemented no later than 4 years after the 
effective date of reclassification; and the second to align the I/M 
implementation deadline with the attainment date for Moderate areas 
under the 2015 ozone NAAQS. A more detailed description of these I/M 
implementation date options for certain situations can be found in the 
EPA's April 13, 2022, proposed rule for other 2015 ozone nonattainment 
areas under consideration for reclassification to Moderate.\47\
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    \47\ See 87 FR 21856.
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E. Summary of Proposed Action

    The EPA is proposing to determine that the Las Vegas nonattainment 
area failed to attain the 2015 ozone standard by its Marginal area 
attainment date of August 3, 2021, based on a 2018-2020 design value of 
0.074 ppm. The EPA is also proposing to determine that the Las Vegas 
nonattainment area is not eligible for a one-year extension of the 
Marginal area attainment date because the area's 2020 4th highest daily 
maximum 8-hour average is 0.078 ppm. CAA section 181(b)(2) requires 
areas that have failed to attain by their attainment date be 
reclassified to the higher of (i) the next highest classification, or 
(ii) the classification that corresponds with the area's design value 
as of the time that the EPA publishes the document identifying the 
areas that have failed to attain by their attainment date. Accordingly, 
the EPA is proposing that the Las Vegas Marginal nonattainment area 
failed to attain the 2015 ozone NAAQS by August 3, 2021, and therefore 
the area must be reclassified as Moderate. The EPA is further proposing 
that the state of Nevada must submit SIP revisions to fulfill the CAA's 
Moderate area requirements by January 1, 2023. The EPA is taking 
comment for 30 days on the determination of failure to attain and 
subsequent reclassification from Marginal to Moderate.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866, Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act

    This rule does not impose any new information collection burden 
under the PRA not already approved by the OMB.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action imposes no enforceable duty on any 
state, local or tribal governments, or the private sector.

E. Executive Order 13132, Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, tribes, or the relationship 
between the national government and the states and tribes, or on the 
distribution of power and responsibilities among the various levels of 
government.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires the 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.'' ``Policies that 
have tribal implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian Tribes.''
    The Las Vegas Tribe of Paiute Indians of the Las Vegas Indian 
Colony have areas of Indian country located within the Las Vegas Valley 
nonattainment area for the 2015 ozone NAAQS. The EPA has concluded that 
the proposed rule may have tribal implications for this

[[Page 43772]]

tribe for the purposes of Executive Order 13175, but would not impose 
substantial direct costs upon the tribes, nor would it preempt tribal 
law. A tribe that is part of a Marginal nonattainment area that is 
reclassified Moderate is not required to submit a TIP revision to 
address new Moderate area requirements. However, if the EPA finalizes 
the determination of failure to attain proposed in this action, the 
nonattainment new source review major source threshold and offset 
requirements would change for stationary sources seeking 
preconstruction permits in any nonattainment areas newly reclassified 
as Moderate, including on tribal lands within these nonattainment 
areas.
    In a letter dated July 16, 2021, the EPA invited the Las Vegas 
Tribe of Paiute Indians of the Las Vegas Indian Colony to consult on 
our evaluation and determination of whether the Las Vegas nonattainment 
area attained or failed to attain by its Marginal area attainment date. 
The EPA intends to notify the Las Vegas Tribe of Paiute Indians of the 
Las Vegas Indian Colony of this proposed action and we will initiate 
government-to-government consultation if requested.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

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

    This proposed action is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States. Upon 
review, the EPA did not identify any particular facts or circumstances 
that would indicate this action will have potential disproportionately 
high and adverse human health or environmental effects on minority, 
low-income, or indigenous populations.
    Furthermore, with respect to the determinations of whether areas 
have attained the NAAQS by the attainment date, the EPA has no 
discretionary authority to address environmental justice in these 
determinations. The CAA directs that within 6 months following the 
applicable attainment date, the Administrator shall determine, based on 
the area's design value as of the attainment date, whether the area 
attained the standard by that date. CAA section 181(b)(2)(A). Except 
for any Severe or Extreme area, any area that the Administrator finds 
has not attained the standard by that date shall be reclassified by 
operation of law to either the next higher classification or the 
classification applicable to the area's design value.

List of Subjects

40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Designations and classifications, Incorporation 
by reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements and Volatile organic 
compounds.

40 CFR Part 81

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Designations and classifications, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, and Volatile organic compounds.

    Dated: July 16, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-15674 Filed 7-21-22; 8:45 am]
BILLING CODE 6560-50-P


