99-23412. Finding of Failure To Submit a Required State Implementation Plan for Carbon Monoxide; NevadaLas Vegas Valley  

  • [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
    
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    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]
    BILLING CODE 6560-50-P
    
    
    

Document Information

Effective Date:
8/31/1999
Published:
09/10/1999
Department:
Environmental Protection Agency
Entry Type:
Rule
Action:
Final rule.
Document Number:
99-23412
Dates:
This action is effective as of August 31, 1999.
Pages:
49084-49087 (4 pages)
Docket Numbers:
FRL-6434-4
PDF File:
99-23412.pdf
CFR: (1)
40 CFR 52