Final Rule Making a Finding of Failure to Submit a Required State Implementation Plan for Particulate Matter, CaliforniaOwens Valley

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL--5883-7]

Final Rule Making a Finding of Failure to Submit a Required State

Implementation Plan for Particulate Matter, California--Owens 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 California failed to make a

particulate matter (PM-10) nonattainment area state implementation plan

(SIP) submittal required for the Owens Valley Planning Area 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 PM-10 national ambient air quality standards (NAAQS)

in areas classified as serious. The deadline for submittal of this plan

for the Owens Valley Planning Area was February 8, 1997.

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 20, 1997.

FOR FURTHER INFORMATION CONTACT: Larry Biland, Air Planning Office

(AIR-2), Air Division, U.S. EPA, Region 9 (AIR-2), 75 Hawthorne Street,

San Francisco, California, 94105-3901, telephone (415) 744-1227.

SUPPLEMENTARY INFORMATION:

I. Background

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 Owens Valley

Planning Area (Owens Valley) was identified in the August 7, 1987,

Federal Register notice (52 FR 29384). A Federal Register notice

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 Owens Valley nonattainment area (Hydrologic Unit

18090103) were set forth in a November 6, 1991,

Federal Register notice (56 FR 56694, codified for the State of

California at 40 CFR 81.305).

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\1\ EPA revised the NAAQS for particulate matter 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. On July 18, 1997, EPA

also established two new standards for PM, both applying only to

particulate matter up to 2.5 microns in diameter (PM-2.5).

This finding applies to the outstanding obligation of the State

to submit for the Owens Valley Planning Area a plan 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 Owens 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 this

attainment date.

Air monitoring of the Owens Valley during the past 18 years has

measured the highest PM-10 pollution in the United States, the result

of water-gathering activities by the City of Los Angeles. California

submitted a moderate area PM-10 SIP for Owens Valley on January 9,

1992. Based on this submittal, EPA determined on January 8, 1993, that

Owens Valley could not practicably attain by the applicable attainment

deadline for moderate areas (December 31, 1994, per section 188(c)(1)

of the Act), and reclassified Owens Valley as serious (58 FR

3334).2 In accordance with section 189 (b)(2) of the Act,

the applicable deadline for submittal of a SIP for Owens Valley

addressing the requirements for serious PM-10 nonattainment areas in

section 189 (b) and (c) of the Act (58 FR 3340) is February 8, 1997 (4

years after the effective date of the reclassification).

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\2\ In reclassifying the Owens area, EPA observed that:

``Ambient PM-10 levels in Owens Valley are among the highest in the

country. In 1989, for instance, the highest 24-hour PM-10

concentration observed in the area was 1861 micrograms per cubic

meter (ug/m\3\) in contrast to the NAAQS of 150 ug/m\3\. The PM-10

SIP for Owens Valley includes an analysis of wind direction and wind

speed on days when PM-10 levels are high, which indicates that the

major source causing violations of the PM-10 NAAQS in this area is

Owens Dry Lake. Owens Dry Lake covers approximately 110 square miles

near the south end of the planning area. Approximately 60 square

miles of the lake is dry.'' (58 FR 3337)

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These requirements, as they pertain to the Owens Valley

nonattainment area, include:

(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

practicable (CAA Section 189(b)(1)(A) (i) and (ii); and

(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)).

Notwithstanding significant efforts by the Great Basin Unified Air

Pollution Control District and the California Air Resources Board to

work with the City of Los Angeles to reach a mutually acceptable

solution, the State has failed to meet the February 8, 1997 deadline

for the required SIP submission. EPA is therefore compelled to find

that the State of California has failed to make the required SIP

submission for the Owens Valley PM-10 nonattainment area.

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 California has not made the required complete submittal within

18 months of the effective date of today's

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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

52.31.3 In addition, CAA section 110(c) provides that EPA

must promulgate a federal implementation plan (FIP) no later than 2

years after a finding under section 179(a).

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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 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 serious

area PM-10 requirements for Owens 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 within 2 years of EPA's

findings (section 110(c)(1) of the Act). EPA encourages the responsible

parties to continue working together on a solution which can cancel out

the potential sanctions and FIP.

II. Final Action

A. Rule

Today, EPA is making a finding of failure to submit for the Owens

Valley PM-10 nonattainment area, due to failure of the State to submit

a SIP revision addressing the serious area PM-10 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 20, 1997. 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 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 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 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. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,

EPA must prepare a regulatory flexibility analysis assessing the impact

of any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small business, small not-for-profit enterprises and

government entities with jurisdiction over populations of less than

50,000.

As discussed in section II.F. below, findings of failure to submit

required SIP revisions do not by themselves create any new

requirements. Therefore, I certify that today's action does not have a

significant impact on small entities.

F. Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act'') signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

In addition, under the Unfunded Mandates Act, before EPA

establishes any regulatory requirements that may significantly or

uniquely affect small governments, including tribal governments, EPA

must have developed, under section 203, a small government agency plan.

EPA has determined that today's action is not a Federal mandate.

The CAA provision discussed in this notice requires states to submit

SIPs. This notice merely provides a finding that California has not met

that requirement. This notice does not, by itself, require any

particular action by any State, local, or tribal government, or by the

private sector.

For the same reasons, EPA has determined that this rule contains no

regulatory requirements that might significantly or uniquely affect

small governments.

G. SBREFA Notice

Under section 801(a)(1)(A) of the APA as amended by the Small

Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a

report containing this final rule and other required information to the

U.S. Senate, the U.S. House of Representatives, and the Comptroller

General of the General Accounting Office prior to publication of the

rule in today's Federal Register. This rule is not a ``major rule'' as

defined by section 804(2) of the APA as amended.

As noted above, EPA is issuing this action as rulemaking. There is

a question as to whether this action is a rule of ``particular

applicability,'' under section 804(3)(A) of the APA as amended by

SBREFA--and thus exempt from the Congressional submission

requirements--because this rule applies only to a named state. In this

case, EPA has decided to submit this rule to Congress, but will

continue to consider

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the issue of the scope of the exemption for rules of ``particular

applicability.''

H. Paperwork Reduction Act

This rule does not contain any information collection requirements

which require OMB approval under the Paperwork Reduction Act (44 U.S.C.

3501 et seq.).

J. Judicial Review

Under CAA section 307(b)(1), a petition to review today's action

may be filed in the Court of Appeals for the appropriate circuit by

October 27, 1997. 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) of the Act.

Dated: August 20, 1997.

Felicia Marcus,

Regional Administrator.

[FR Doc. 97-22948 Filed 8-27-97; 8:45 am]

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