[Federal Register Volume 64, Number 175 (Friday, September 10, 1999)]
[Rules and Regulations]
[Pages 49084-49087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23412]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-6434-4]
Finding of Failure To Submit a Required State Implementation Plan
for Carbon Monoxide; Nevada--Las Vegas Valley
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action in making a finding, under the
Clean Air Act (CAA or Act), that Nevada failed to make a carbon
monoxide (CO) nonattainment area state implementation plan (SIP)
submittal required for the Las Vegas Valley under the Act. Under
certain provisions of the Act, states are required to submit SIPs
providing for, among other things, reasonable further progress and
attainment of the CO national ambient air quality standards (NAAQS) in
areas classified as serious. The deadline for submittal of this plan
for the Las Vegas Valley was May 3, 1999.
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 August 31, 1999.
FOR FURTHER INFORMATION CONTACT: Larry A. Biland, Air Planning Office
(AIR-2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San
Francisco, California, 94105-3901, Telephone (415) 744-1227.
SUPPLEMENTARY INFORMATION:
I. Background
The CAA Amendments of 1990 were enacted on November 15, 1990. Under
section 107(d)(1)(C) of the amended CAA, each CO area designated
nonattainment prior to enactment of the 1990 Amendments, such as the
Las Vegas Valley area, was designated nonattainment by operation of law
upon
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enactment of the 1990 Amendments. Under section 186(a) of the Act, each
CO area designated nonattainment under section 107(d) was also
classified by operation of law as either ``moderate'' or ``serious''
depending on the severity of the area's air quality problem. CO areas
with design values between 9.1 and 16.4 parts per million (ppm), such
as the Las Vegas Valley area, were classified as moderate. These
nonattainment designations and classifications were codified in 40 CFR
part 81.1 See 56 FR 56694 (November 6, 1991).
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\1\ The CO nonattainment area is the ``Las Vegas Valley
Hydrographic Area 212'' within Clark County. 40 CFR 81.329.
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States containing areas that were classified as moderate
nonattainment by operation of law under section 107(d) were required to
submit SIPs designed to attain the CO NAAQS as expeditiously as
practicable but no later than December 31, 1995.2 Under
section 186(a)(4), Nevada requested and EPA granted a one year
extension of the December 31, 1995 attainment deadline (61 FR 57331,
November 6, 1996). However, in the first quarter of 1996, Clark County
recorded three exceedances of the CO standard at the East Charleston
monitoring station. Clark County challenged the validity of the CO data
collected at this site. EPA stated it would not disqualify the January
to March winter 1996 CO season monitoring data from the East Charleston
station without conclusive evidence that it was inaccurate. Therefore
Region 9 worked with Clark County and the State of Nevada to properly
site and approve a new monitoring site at Sunrise Acres, and worked
collaboratively with the State and Clark County to examine whether East
Charleston levels correlated with Sunrise Acres (the East Charleston
replacement site) levels. Data received for the new Sunrise Acres
monitor tracked closely with historical data from East Charleston.
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\2\ The moderate area SIP requirements are set forth in section
187(a) of the Act and differ depending on whether the area's design
value is below or above 12.7 ppm. The Las Vegas Valley area has a
design value above 12.7 ppm. 40 CFR 81.329.
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On October 2, 1997 EPA made a final finding that the Las Vegas
Valley, CO nonattainment area did not attain the CO NAAQS under the CAA
after having received a one year extension from the mandated attainment
date of December 31, 1995 for moderate nonattainment areas to December
31, 1996. As a result of that finding, which went into effect on
November 3, 1997, (62 FR 51604 October 2, 1997) the Las Vegas Valley,
Nevada CO nonattainment area was reclassified as serious. The State had
18 months or until May 3, 1999 to submit a new State Implementation
Plan (SIP) demonstrating attainment of the CO NAAQS as expeditiously as
practicable but no later than December 31, 2000, the CAA attainment
date for serious areas. The Las Vegas Valley continues to exceed the CO
standard with 1 exceedance in 1997 and two in 1998.
Notwithstanding significant efforts by the Clark County Department
of Comprehensive Planning to complete their CO SIP, the State has
failed to meet the May 3, 1999 deadline for the required SIP
submission. EPA is therefore compelled to find that the State of Nevada
has failed to make the required SIP submission for the Las Vegas
Valley.
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.
If Nevada has not made the required complete submittal by March 2,
2001, 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 by
August 31, 2001, then the highway funding sanction will apply in the
affected area, in accordance with 40 CFR 52.31.3 In
addition, CAA section 110(c) provides that EPA must promulgate a
federal implementation plan (FIP).
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\3\ 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 pursuant to section 179 of the Clean Air Act.''
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The sanctions will not take effect if, before March 2, 2001, EPA
finds that the State has made a complete submittal of a plan addressing
the serious area CO requirements for Las Vegas Valley. In addition, EPA
will not promulgate a FIP if the State makes the required SIP submittal
and EPA takes final action to approve the submittal before August 31,
2001, (section 110(c)(1) of the Act). EPA encourages the responsible
parties in Clark County to continue working together on the CO Plan
which can eliminate the need for potential sanctions and FIP.
II. Final Action
A. Rule
Today, EPA is making a finding of failure to submit for the Las
Vegas Valley CO nonattainment area, due to failure of the State to
submit a SIP revision addressing the serious area CO requirements of
the CAA.
B. Effective Date Under the Administrative Procedures Act
EPA has issued this action as a rulemaking because the Agency has
treated this type of action as rulemaking in the past. However, EPA
believes that it would have the authority to issue this action in an
informal adjudication, and is considering which administrative
process--rulemaking or informal adjudication--is appropriate for future
actions of this kind.
Because EPA is issuing this action as a rulemaking, the
Administrative Procedures Act (APA) applies.
Today's action will be effective on August 31, 1999. Under the 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 is
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 notice is a final agency action, but 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
[[Page 49086]]
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).
D. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this action
from review under Executive Order 12866.
E. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule is required by the Clean Air Act. Moreover, it does
not create a mandate on State, local or tribal governments nor does the
rule impose any enforceable duties on these entities. It simply makes
an objective finding that the State of Nevada has failed to carry out a
duty required by the Clean Air Act. Accordingly, the requirements of
section 1(a) of E.O. 12875 do not apply to this rule.
F. Executive Order 13045
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 E.O.
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 E.O. 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
G. 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 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, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, 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 officials and other
representatives of Indian tribal 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 is required by the Clean Air Act. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
Moreover, because it finds a failure only by the state government of
Nevada, it does not apply to or significantly or uniquely affect the
communities of Indian tribal governments.
H. 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 rule is not subject to notice and comment rulemaking;
therefore, neither a regulatory flexibility analysis nor certification
is required under the RFA.
I. 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
annual 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 is not a Federal mandate.
The Clean Air Act provisions discussed in this rule requires states to
submit implementation plans. This notice merely provides a finding that
Nevada has not met that requirement. This document does not, by itself,
require any particular action by any State, local, or tribal
government, or by the private sector. The consequences of the State's
failure are mandated by the Clean Air Act and are not at EPA's
discretion.
For the same reasons, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.
J. 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 therefor, and
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established an effective date of August 31, 1999. 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).
K. 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 November 9, 1999. 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, Carbon monoxide,
Intergovernmental relations.
Dated: August 31, 1999.
David P. Howekamp,
Acting Regional Administrator, Region IX.
[FR Doc. 99-23412 Filed 9-9-99; 8:45 am]
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