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Finding of Failure To Submit a Required State Implementation Plan for Particulate Matter, Nevada-Clark County
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[Federal Register: January 5, 2001 (Volume 66, Number 4)]
[Rules and Regulations]
[Page 1046-1050]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja01-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NV033-FON; FRL-6929-1]
Finding of Failure To Submit a Required State Implementation Plan
for Particulate Matter, Nevada-Clark County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to find that Nevada failed to make
particulate matter (PM-10) nonattainment area state implementation plan
(SIP) submittals required for the Las Vegas Valley Planning Area under
the Clean Air Act (CAA or Act). The Las Vegas Planning Area was
originally classified as a moderate PM-10 nonattainment area, but was
later reclassified as serious. Under certain provisions of the Act,
states are required to submit SIPs providing for, among other things,
reasonable further progress and attainment of the PM-10 national
ambient air quality standards (NAAQS) in areas classified as moderate
and serious. The State of Nevada submitted several plans intended to
meet these requirements. On June 14, 2000, EPA proposed to disapprove
these SIP submittals. On December 5, 2000, prior to any final action by
EPA, the State of Nevada withdrew the submittals. As a result of the
State's withdrawal of the moderate and serious area SIP submittals, EPA
is today finding that Nevada failed to make the PM-10 nonattainment
area SIP submittals required for the Las Vegas Valley Planning Area
under the Act.
This action triggers the 18-month time clock for mandatory
application of sanctions and 2-year time clock for a federal
implementation plan (FIP) under the Act. This action is consistent with
the CAA mechanism for assuring SIP submissions.
EFFECTIVE DATE: This action is effective as of December 20, 2000.
FOR FURTHER INFORMATION CONTACT: Kenneth Israels, U.S. Environmental
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street,
San Francisco, CA 94105-3901, Telephone: (415) 744-1194.
SUPPLEMENTARY INFORMATION:
I. Background
A. CAA Planning Requirements
In 1990, Congress amended the Clean Air Act to address, among other
things, continued nonattainment of the PM-10 NAAQS.\1\ Pub. L. 101-549,
104 Stat. 2399, codified at 42 U.S.C. 7401-7671q (1991). On the date of
enactment of the Amendments, PM-10 areas meeting the qualifications of
section 107(d)(4)(B) of the amended Act were designated nonattainment
by operation of law. These areas included all former Group I areas
identified in 52 FR 29383 (August 7, 1987) and clarified in 55 FR 45799
(October 31, 1980), and any other areas violating the PM-10 NAAQS prior
to January 1, 1989. The Las Vegas Valley Planning Area was identified
in the August 7, 1987, Federal Register (52 FR 29384). A Federal
Register action announcing all areas designated nonattainment for PM-10
at enactment of the 1990 amendments was published on March 15, 1991 (56
FR 11101). The boundaries of the Las Vegas Valley nonattainment area
(Hydrographic Area 212) are codified at 40 CFR 81.329.
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\1\ EPA revised the NAAQS for PM-10 on July 1, 1987 (52 FR
24672), replacing standards for total suspended particulates with
new standards applying only to particulate matter up to 10 microns
in diameter (PM-10). At that time, EPA established two PM-10
standards. The annual PM-10 standard is attained when the expected
annual arithmetic average of the 24-hour samples for a period of one
year does not exceed 50 micrograms per cubic meter (ug/m\3\). The
24-hour PM-10 standard of 150 ug/m\3\ is attained if samples taken
for 24-hour periods have no more than one expected exceedance per
year, averaged over 3 years. See 40 CFR 50.6 and 40 CFR part 50,
appendix K.
On July 18, 1997, EPA reaffirmed the annual PM-10 standard, and
slightly revised the 24-hour PM-10 standard (62 FR 38651). The
revised 24-hour PM-10 standard is attained if the 99th percentile of
the distribution of the 24-hour results over 3 years does not exceed
150 ug/m\3\ at each monitor within an area.
This finding applies to the outstanding obligation of the State
to submit plans for the Las Vegas Valley Planning Area addressing
the 24-hour and annual PM-10 standards, as originally promulgated.
Breathing particulate matter can cause significant health
effects, including an increase in respiratory illness and premature
death.
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Once an area is designated nonattainment, section 188 of the
amended Act outlines the process for classification of the area and
establishes the area's attainment date. In accordance with section
188(a), at the time of designation, all PM-10 nonattainment areas,
including Las Vegas Valley, were initially classified as moderate by
operation of law. Section 188(b)(1) of the Act further provides that
moderate areas can subsequently be reclassified as serious before the
applicable moderate area attainment date if at any time EPA determines
that the area cannot ``practicably'' attain the PM-10 NAAQS by that
date.
Air monitoring of the Las Vegas Valley during the past 18 years has
measured some of the highest PM-10 pollution in the United States.
Nevada submitted a moderate area PM-10 plan for the Las Vegas Valley on
December 6, 1991. Based on this submittal, EPA determined on January 8,
1993, that the Las Vegas Valley could not practicably attain both the
annual and 24-hour standards by the applicable attainment deadline for
moderate areas (December 31, 1994, per section 188(c)(1) of the Act),
and reclassified the Las Vegas Valley as serious (58 FR 3334). In
accordance with section 189(b)(2) of the Act, SIP revisions for the Las
Vegas Valley addressing the requirements for serious PM-10
nonattainment areas in section 189(b) and (c) of the Act were required
to be submitted by August 8, 1994 and February 8, 1997.
The moderate and serious area requirements, as they currently
pertain to the Las Vegas Valley nonattainment area, include: \2\
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\2\ EPA has concluded that certain moderate area PM-10
requirements continue to apply after an area has been reclassified
to serious. For a more detailed discussion of the planning
requirements applicable to the Las Vegas Valley and the relationship
between the moderate area and serious area requirements after the
reclassification of the area to serious, see 65 FR 37324-37326 (June
14, 2000).
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(a) A demonstration (including air quality modeling) that the plan
will provide for attainment as expeditiously as practicable but no
later than December 31, 2001, or an alternative demonstration that
attainment by that date would be impracticable and that the plan
provides for attainment by the most expeditious alternative date
[[Page 1047]]
practicable (CAA section 189(b)(1)(A)(i) and (ii));
(b) Quantitative milestones which are to be achieved every 3 years
and which demonstrate reasonable further progress toward attainment by
December 31, 2001 (CAA section 189(c)).
(c) Provisions to assure that reasonably available control (RACM),
including reasonably available control technology (RACT), measures
shall be implemented as soon as practicable (CAA section 189(a)(1)(C));
and
(d) Provisions to assure that the best available control measures
(BACM), including best available control technology (BACT) shall be
implemented no later than four years after the reclassification of the
area to a serious nonattainment area (CAA section 189(b)(1)(B).
B. Nevada's PM-10 SIP Submittals for the Las Vegas Valley
The State of Nevada submitted the following plans that were
prepared by the Clark County Department of Comprehensive Planning
(CCDCP) to address the CAA's moderate and serious area requirements for
the Las Vegas Valley Planning Area:
1. The PM-10 moderate area nonattainment plan titled ``PM-10 Air
Quality Implementation Plan, Las Vegas Valley, Clark County, Nevada''
(1991 Moderate Plan), submitted to EPA on December 6, 1991;
2. An ``Addendum to the `Moderate Area' PM-10 State Implementation
Plan for the Las Vegas Valley'' (1995 RACM Addendum), submitted to EPA
on February 15, 1995;
3. A BACM analysis plan titled ``Providing for the Evaluation,
Adoption and Implementation of Best Available Control Measures and Best
Available Control Technology to Improve PM-10 Air Quality'' (1994 BACM
Plan), submitted to EPA on December, 1994; and
4. The PM-10 serious area nonattainment plan for the Las Vegas
Valley nonattainment area titled ``Particulate Matter (PM-10)
Attainment Demonstration Plan'' (1997 Serious Plan), submitted to EPA
on August 25, 1997.
The term ``Moderate Area SIP'' in this action refers collectively
to the 1991 Moderate Plan and the 1995 RACM Addendum; ``Serious Area
SIP'' refers collectively to the 1994 BACM Plan and the 1997 Serious
Plan. These submittals became complete by operation of law.\3\
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\3\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
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C. EPA Actions Relating to Nevada's PM-10 SIP Submittals for the Las
Vegas Valley
On June 14, 2000, EPA proposed to disapprove both the Moderate Area
SIP and the Serious Area SIP for the Las Vegas Valley Planning Area.
See 65 FR 37324. Two comments supporting our proposed action were
received.
On December 5, 2000, prior to EPA's taking final action on its
proposed disapproval, the State of Nevada withdrew the Moderate Area
SIP and the Serious Area SIP. See letter dated December 5, 2000 from
Allen Biaggi, Administrator of the Division of Environmental
Protection, Nevada Department of Conservation and Natural Resources to
Felicia Marcus, Regional Administrator, EPA Region 9.
The CAA establishes specific consequences if EPA finds that a State
has failed to meet certain requirements of the CAA. Of particular
relevance here is CAA section 179(a)(1), the mandatory sanctions
provision. Section 179(a) sets forth four findings that form the basis
for application of a sanction. The first finding, that a State has
failed to submit a plan required under the CAA, is the finding relevant
to this rulemaking because withdrawal of a plan is tantamount to
failing to submit it.
If Nevada has not made the required complete submittal (in this
case resubmittal) within 18 months of the effective date of today's
rulemaking, pursuant to CAA section 179(a) and 40 CFR 52.31, the offset
sanction identified in CAA section 179(b) will be applied in the
affected area. If the State has still not made a complete submission 6
months after the offset sanction is imposed, then the highway funding
sanction will apply in the affected area, in accordance with 40 CFR
52.31.\4\ The 18-month clock will stop and the sanctions will not take
effect if, within 18 months after the date of the finding, EPA finds
that the State has made a complete submittal of a plan addressing the
applicable moderate area and the serious area PM-10 requirements for
the Las Vegas Valley.
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\4\ In a 1994 rulemaking, EPA established the Agency's selection
of the sequence of these two sanctions: the offset sanction under
section 179(b)(2) shall apply at 18 months, followed 6 months later
by the highway sanction under section 179(b)(1) of the Act. EPA does
not choose to deviate from this presumptive sequence in this
instance. For more details on the timing and implementation of the
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR
52.31, ``Selection of sequence of mandatory sanctions for findings
made pusuant to section 179 of the Clean Air Act.''
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In addition, CAA section 110(c)(1) provides that EPA must
promulgate a federal implementation plan (FIP) no later than 2 years
after a finding under section 179(a) unless EPA takes final action to
approve the submittal within 2 years of EPA's finding.
EPA encourages the responsible parties to work together on a
solution in a broad, open public process which can result in the
avoidance of the sanctions and FIP.
D. Recent Developments in Nevada
Since November, 1998, we have been working with CCDCP to develop an
approvable SIP that would replace those we proposed to disapprove in
June 2000. On October 30, 2000, EPA received a 60-day notice of intent
to sue under section 304(a)(2) of the CAA from the Sierra Club alleging
that we had failed to take final action on the 1997 Serious Plan by the
CAA deadline. While in the midst of finalizing our disapproval action,
the State of Nevada withdrew both the Moderate Area SIP and Serious
Area SIP from EPA consideration. As noted above, the withdrawal means
that EPA cannot finalize the proposed disapproval action and the Agency
is compelled to find that the State of Nevada has failed to make the
required SIP submissions for the Las Vegas Valley PM-10 nonattainment
area.\5\
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\5\ EPA notes that the sanctions for failing to submit these
plans are identical to those which would have been imposed had we
finalized our disapproval action.
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EPA is hopeful that in addition to withdrawing these plans, CCDCP
intends to consult more broadly and openly with stakeholders concerned
with the planning process; EPA urges them to do so. EPA is encouraged
by recent efforts by CCDCP to develop an approvable PM-10 SIP that
would replace the ones which have been withdrawn.
EPA believes that some of the work found in the most recent CCDCP
draft plan \6\ will contribute towards attaining the 24-hour and annual
PM-10 standards. For instance, they have:
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\6\ This plan, which was informally submitted to EPA on
September 11, 2000, is entitled ``PM-10 State Implementation Plan
for Clark County--September 2000 Draft.'' Some of this work is being
currently implemented by the Clark County Health District.
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Adopted several new fugitive dust rules for significant
sources, as well as some of the most advanced and stringent Best
Management Practices for construction sites among PM-10 nonattainment
areas,
Conducted studies to identify vacant land in the Las Vegas
Valley and they are engaging in public outreach efforts to vacant land
owners regarding compliance with new requirements,
[[Page 1048]]
Committed to hire additional staff to conduct inspections
of fugitive dust sources to ensure rule compliance, and
Funded near-term research on standards/test methods for
fugitive dust sources.
However, EPA notes that while we are encouraged by the work of
CCDCP in developing an approvable PM-10 replacement SIP, we have also
identified significant concerns with the draft plan that we have
reviewed so far. Specifically, EPA is concerned about: \7\
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\7\ This list is not exhaustive. See letter from Kenneth F.
Bigos, EPA to John Schlegel, CCDCP, dated November 15, 2000 for
additional details.
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(1) The underlying data (including whether or not all emission
sources are included) which ultimately must result in an accurate
emissions inventory,
(2) How the use of the locally-implemented paved road offset
program may affect attainment and conformity,
(3) The plan's treatment of mobile source emissions growth,
(4) The plan's incomplete or inadequate process for determining
appropriate controls for the area and measurement standards/techniques
for certain sources (RACM/BACM and the most stringent measures analysis
under CAA section 188(e)),
(5) The plan's inaccurate determination that BACT application is
unnecessary at sources which are clearly subject to such federal
requirements,
(6) An overall strategy to attain which inappropriately assumes
future construction occurring on all vacant land within the
nonattainment area,\8\
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\8\ EPA notes that this is consistent with concerns that the
Sierra Club raised both in its comment letter on the June 14, 2000
proposed disapproval action and in its October 30, 2000 notice of
intent to sue EPA.
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(7) Failure to integrate the conformity budget into the plan so
that the budget and the plan can be shown to be working together
towards attainment, and
(8) Failure to address significant elements necessary to justify an
extension of time to achieve attainment of PM-10 standards.
We are hopeful that by CCDCP working with the local agencies and
business, environmental, and other stakeholders, our concerns will be
addressed with the submittal of an approvable PM-10 SIP for the Las
Vegas Valley area. Further, it is our understanding that CCDCP intends
to adopt a plan which addresses our concerns on the following schedule:
January 5, 2001--CCDCP will send a second draft of their
draft plan to EPA for comment,
March 20, 2001--CCDCP presents the draft plan to their
Board and opens the public comment period on the plan,
April 20, 2001--CCDCP will close the public comment
period,
June 2001--CCDCP's Board will approve the plan, and
Late June 2001--State of Nevada will submit the plan to
EPA for action.
II. Final Action
A. Rule
EPA is today making a finding that the State of Nevada failed to
submit SIP revisions addressing the CAA's moderate and serious area PM-
10 requirements to attain the 24-hour and annual PM-10 NAAQS for the
Las Vegas Valley PM-10 nonattainment area.
B. Effective Date Under the Administrative Procedures Act
Today's action will be effective on December 20, 2000. Under the
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), agency
rulemaking may take effect before 30 days after the date of publication
in the Federal Register if an agency has good cause to mandate an
earlier effective date. Today's action concerns a SIP submission that
is already overdue and the State has been aware of applicable
provisions of the CAA relating to overdue SIPs. In addition, today's
action simply starts a ``clock'' that will not result in sanctions for
18 months, and that the State may ``turn off'' through the submission
of a complete SIP submittal. These reasons support an effective date
prior to 30 days after the date of publication.
C. Notice-and-Comment Under the Administrative Procedures Act
This final agency action is not subject to the notice-and-comment
requirements of the APA, 5 U.S.C. 533(b). EPA believes that because of
the limited time provided to make findings of failure to submit
regarding SIP submissions, Congress did not intend such findings to be
subject to notice-and-comment rulemaking. However, to the extent such
findings are subject to notice-and-comment rulemaking, EPA invokes the
good cause exception pursuant to the APA, 5 U.S.C. 553(d)(3). Notice
and comment are unnecessary because no EPA judgment is involved in
making a nonsubstantive finding of failure to submit SIPs required by
the CAA. Furthermore, providing notice and comment would be
impracticable because of the limited time provided under the statute
for making such determinations. Finally, notice and comment would be
contrary to the public interest because it would divert Agency
resources from the critical substantive review of submitted SIPs. See
58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853
(August 4, 1994).
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 13045
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks 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.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
C. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to OMB, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal
[[Page 1049]]
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
D. Executive Order 13132
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999) revokes and replaces Executive Orders 12612, Federalism and
12875, Enhancing the Intergovernmental Partnership. Executive Order
13132 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.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This rule 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, because it
does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities because findings of failure to submit required
SIP revisions do not by themselves create any new requirements.
Therefore, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that today's action does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. The CAA provision discussed in this notice requires
states to submit SIPs. This notice merely provides a finding that
Nevada has not met that requirement. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
G. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
EPA believes that VCS are inapplicable to today's action because it
does not require the public to perform activities conducive to the use
of VCS.
H. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. However, section 808 provides that any rule for which
the issuing agency for good cause finds (and incorporates the finding
and a brief statement of reasons therefor in the rule) that notice and
public procedure thereon are impracticable, unnecessary or contrary to
the public interest, shall take effect at such time as the agency
promulgating the rule determines. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefore, and established an effective date of December 20,
2000. EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
I. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 6, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Particulate
matter, Intergovernmental relations, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
[[Page 1050]]
Dated: December 20, 2000.
Amy Zimpfer,
Acting Regional Administrator, Region IX.
[FR Doc. 01-221 Filed 1-4-01; 8:45 am]
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