[Federal Register Volume 64, Number 171 (Friday, September 3, 1999)]
[Rules and Regulations]
[Pages 48305-48307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22930]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA-221-158; FRL-6430-7]
Approval and Promulgation of Implementation Plans; California--
Owens Valley Nonattainment Area; PM-10
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve a State Implementation
Plan (SIP) submitted by the State of California for attaining the
particulate matter (PM-10) national ambient air quality standards
(NAAQS) in the Owens Valley Planning Area, along with the State's
request for an extension to December 31, 2006 to attain the PM-10 NAAQS
in the area. EPA is taking these final actions under provisions of the
Clean Air Act (CAA) regarding EPA action on SIP submittals, SIPs for
national primary and secondary standards, and plan requirements for
nonattainment areas.
EFFECTIVE DATE: This action is effective on October 4, 1999.
ADDRESSES: The rulemaking docket for this notice, may be inspected and
copied at the following location during normal business hours. A
reasonable fee may be charged for copying parts of the docket.
U.S. Environmental Protection Agency, Region 9, Air Division, 75
Hawthorne Street, San Francisco, CA 94105-3901.
Copies of the SIP materials area also available for inspection at
the addresses listed below:
California Air Resources Board, 2020 L Street, P.O. Box 2815,
Sacramento, CA 95814; or
Great Basin Unified Air Pollution Control District, 157 Short Street,
Suite 6, Bishop, CA 93514.
FOR FURTHER INFORMATION CONTACT: Larry A. Biland, U.S. Environmental
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street,
San Francisco, CA 94105-3901, (415) 744-1227.
SUPPLEMENTARY INFORMATION:
I. Background
The 1998 PM-10 plan (1998 SIP) for the Owens Valley Planning Area
1 was adopted on November 16, 1998, by the Great Basin
Unified Air Pollution Control District (GBUAPCD or the District), and
submitted as a SIP revision by the California Air Resources Board
(CARB) on December 10, 1998. EPA determined this submission to be
complete on February 2, 1999.2
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\1\ For a description of the boundaries of the Owens Valley
Planning Area, see 40 CFR 81.305.
\2\ 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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II. Summary of EPA Action
EPA is finalizing approval of the serious area SIP submitted by the
State of California for the Owens Valley PM-10 nonattainment area.
Specifically, EPA is approving the 1998 SIP with respect to the CAA
requirements for public notice and involvement under section 110(a)(1);
emissions inventories under section 172(c)(3); control measures under
section 110(k)(3), as meeting the requirements of sections 110(a) and
189(b)(1)(B); Reasonable Further Progress (RFP) and rate-of-progress
milestones under section 189(c); contingency measures under section
172(c)(9); and demonstration of attainment under section 189(b)(1)(A).
EPA is also finalizing approval of the State's request for an extension
of the attainment date from December 31, 2001, to December 31, 2006,
under CAA section 188(e).
These actions were proposed on June 25, 1998 (64 FR 34173-34179).
The reader is referred to that notice for additional detail on the
affected area and the SIP submittal, as well as a summary of relevant
CAA provisions and EPA interpretations of those provisions.
III. Response to Public Comments
EPA received only one comment, from Dorothy Alther of California
Indian Legal Services, representing the Lone Pine and Timbisha Shoshone
Indian Tribes and the Owens Valley Indian Water Commission. The
commenter summarized the position of the Tribes as having some concerns
regarding the 1998 SIP and its implementation, but being anxious to see
work begin on the Dry Lake. The comments did not urge EPA disapproval
of the 1998 SIP.
Ms. Alther stated that EPA erred in stating that required controls
on 16.5 square miles in the first phase of implementation is
discretionary. EPA agrees. The Los Angeles Department of Water and
Power is mandated to place controls on 10 square miles of the Owens
Lake bed. Implementation of controls on an additional 3.5 square miles
in Phase 2 is required ``unless the District determines, on or before
December 31, 2001, that the Owens Valley Planning Area (OVPA) will
attain the PM-10 NAAQS by December 31, 2006 without implementation of
further control measures.'' Implementation of controls on an additional
3 square miles in Phase 3 is required unless the District makes a
similar determination by December 31, 2002. Board Order #981116-01,
Paragraphs 2 and 3.
The commenter expressed concern regarding the lack of certainty
regarding what measures will be implemented in the second increment of
the 1998 SIP. EPA believes that the second increment (Phases 4-6) of
the SIP control strategy includes an enforceable City obligation to
implement controls on additional areas of the Owens Lake bed by
particular dates sufficient to meet progress and attainment
requirements as determined by the District. In view of the absence of
information on large-scale fugitive dust control projects at a dry lake
bed, EPA believes that it is reasonable to allow the City and District
the discretion to identify more precisely the specific measures that
will be most effective in achieving attainment, based on the practical
experience gained in implementing the first increment of the control
strategy. The commenter and other stakeholders will have an opportunity
to review the specific strategies included in a SIP revision to be
submitted on December 31, 2003. EPA will work with the District and
City to ensure that the selected strategies in the second increment are
adequate to achieve progress and attainment by 2006, and that any
necessary SIP updates are prepared and adopted in a process that
provides full opportunities for public involvement.
The commenter disagreed with EPA's discussion and proposed approval
of the 5-year attainment date extension. The commenter did not explain
why she believed that the SIP failed to qualify for an extension. EPA
continues to believe that the area meets the CAA section 188(e)
criteria for the extension. Despite an expeditious schedule for
implementing all feasible and effective control measures, the 1998 SIP
provides information showing that attainment by 2001 is impracticable.
The State has complied with all implementation requirements and
commitments pertaining to the area in the implementation plan. Finally,
EPA continues to conclude that the 1998 SIP includes the most stringent
measures
[[Page 48306]]
that are included in the implementation plan of any state or are
achieved in practice in any state, and can feasibly be implemented in
the area.
The commenter questioned the adequacy of the attainment
demonstration, since the modeling assessment shows the probable need to
control 22,400 acres and the 1998 SIP concentrates on control of 14,400
acres. The District has committed to a program of continuing scientific
investigation of emission reductions and air quality progress, and
based on this refined information will adjust the strategy as needed to
provide for attainment by 2006. If attainment has not been achieved in
the first increment of control, the District will revise the SIP's
control strategy in 2003 to provide controls over the lake playa
sufficient to attain the NAAQS by 2006. EPA will monitor the results of
these strategy assessments and work with the District and other plan
participants to ensure that the plan is adjusted, as may be necessary,
to meet progress and attainment deadlines.
The commenter noted that the plan shows a design day PM-10
concentration of 149.95 g/m3, which is technically
below the 150 g/m3 24-hour PM-10 NAAQS, but
provides no ``cushion.'' EPA agrees that the plan predicts that the
control strategy will reduce peak concentrations only to levels very
slightly below the 24-hour NAAQS. While the attainment provision meets
minimal approval criteria, it will be important for the District,
State, and EPA to verify that implementation of the plan is having the
predicted impact on air quality.
For the reasons stated above, EPA is finalizing the proposed plan
approval.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
B. 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 does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. 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 is
does not involve decisions intended to mitigate environmental health or
safety risks.
D. 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
does not significantly or uniquely affect the communities of Indian
tribal governments. Accordingly, the requirements of section 3(b) of
E.O. 13084 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 SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
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
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
[[Page 48307]]
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 the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. 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. 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).
H. 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 2, 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, Incorporation by
reference, Intergovernmental relations, Oxides of nitrogen, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: August 18, 1999.
Felicia Marcus,
Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.220 is amended by adding paragraph (c)(247) to read
as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(267) New plan for Owens Valley PM-10 Planning Area for the
following agency was submitted on December 10, 1998 by the Governor's
designee.
(i) Incorporation by reference.
(A) Great Basin Unified APCD.
(1) Owens Valley PM-10 Planning Area Demonstration of Attainment
State Implementation Plan, Section 7-4, Commitment to adopt 2003 SIP
Revision and Section 8-2, the Board Order adopted on November 16, 1998
with Exhibit 1.
* * * * *
[FR Doc. 99-22930 Filed 9-2-99; 8:45 am]
BILLING CODE 6560-50-P
