Approval and Promulgation of Implementation Plans; Nevada State Implementation Plan Revision, Clark County

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NV-034-0113; FRL-6200-7]

Approval and Promulgation of Implementation Plans; Nevada State

Implementation Plan Revision, Clark County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Nevada State

Implementation Plan (SIP). This action specifically includes proposed

approval of revisions to Clark County Health District's wintertime

oxygenated fuels program. The intended effect of this SIP revision is

principally to regulate CO emissions in accordance with the

requirements of the Clean Air Act, as amended in 1990 (CAA or the Act).

EPA's final action on this proposal will incorporate it into the

federally approved SIP for the Clark County nonattainment area. EPA has

evaluated this revision and is proposing to approve it under provisions

of the CAA regarding EPA action on SIP submittals, SIPs for national

primary and secondary ambient air quality standards and plan

requirements for nonattainment areas.

DATES: Comments must be received on or before January 11, 1999.

ADDRESSES: Comments may be mailed to: Air Planning Office [AIR-2], Air

Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne

Street, San Francisco, CA 94105-3901.

Copies of the SIP revision and EPA's evaluation report are

available for public inspection at EPA's Region 9 office during normal

business hours. Copies of the submitted SIP revision are also available

for inspection at the following locations:

Nevada Division of Environmental Protection, Bureau of Air Quality, 123

W. Nye Lane, Carson City, NV

Clark County Health District, PO Box 3902, 625 Shadow Lane, Las Vegas,

NV

FOR FURTHER INFORMATION CONTACT: Roxanne Johnson, Air Planning Office

(AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 744-1225.

SUPPLEMENTARY INFORMATION:

I. Applicability

The revision being proposed for approval into the Nevada SIP

includes:

[[Page 68416]]

Clark County District Board of Health, (CCDBH), Air Pollution Control

(APC) Section 53, Oxygenated Gasoline Program (as amended and approved

on September 25, 1997). This SIP revision was submitted by the Nevada

Division of Environmental Protection to EPA on August 7, 1998.

II. Background

Section 211(m) of the CAA requires states with CO nonattainment

areas with design values of 9.5 parts per million (ppm) or more to

submit revisions to their SIPs for those areas, and implement an

oxygenated gasoline program, requiring gasoline to meet a minimum

oxygen content of 2.7% by weight.

The Clark County nonattainment area design value was based on data

for the required two year period of 1988 and 1989. The design value was

greater than 12.7 ppm (i.e., 14.4 ppm using 1988 data); therefore the

area was classified as moderate CO nonattainment under section 186 of

the Act. Because the nonattainment area did not attain the CO standard

by the required attainment date of December 31, 1996 1, the

nonattainment area of Clark County was reclassified to serious for CO.

As a serious area, Clark County now has until December 31, 2000 to meet

the national CO standard.

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\1\ Clark County was granted a one-year extension of the

December 31, 1995 attainment date. 61 FR 575407 (November 6, 1996).

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CO remains the greatest air quality challenge in Clark County,

especially in the Las Vegas Valley. While a number of programs have

helped reduce CO levels each year since 1976, CO levels are directly

affected by the ever-increasing number of car miles traveled each year.

Nearly all CO in the Valley comes from gasoline powered vehicles.

Especially challenging are winter months which bring weather inversions

which trap cold air under warm air, preventing the CO emitted from

motor vehicles from escaping the Valley. This phenomenon causes several

nights of high CO levels each winter. Overall, the District continues

to have a good experience with implementing its oxygenated fuels

program as a cost effective method of reducing CO emissions in the

Valley.

The oxygenated gasoline program was initially adopted on November

17, 1988. The initial program included: a 2.5% oxygen level for the

first wintertime season, a 2.6% oxygen level for the next wintertime

season, and a choice of methyl tertiary butyl ether (MTBE) or ethanol

as oxygenates. The regulation was amended in June 1990 to increase the

time period of each succeeding wintertime season and again in July 1991

to increase the oxygen level from 2.6% to 2.7% oxygen by weight.

The District's new submittal requires wintertime oxygenated

gasoline from October 1 through March 31. The minimum oxygen level is

3.5% by weight.

The following is EPA's evaluation and proposed action for this

rule.

III. EPA Evaluation and Proposed Action

In determining the approvability of this SIP revision, EPA must

evaluate the revision for consistency with the requirements of the CAA

and EPA regulations, as found in section 110 and Part D of the CAA and

40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal

of Implementation Plans).

(a) 3.5% oxygenated fuels program. The Clark County area of

applicability is the hydrographic basins containing the Las Vegas

Valley, the Eldorado Valley, the Ivanpah Valley, the Boulder City

limits, and any area within 3 miles of any such hydrographic basins and

which is within Clark County, Nevada.

In 1995, the Board of Health adopted a resolution committing to the

adoption in 1998 of a regulation that would mandate 3.5% oxygen

commencing October 2001. In March 1997, the Clark County Commission

adopted a resolution requesting that the Board of Health adopt such a

program for implementation for the fall of 1997. The program was

adopted by the Board on September 25, 1997 and requires that the

minimum oxygen content of wintertime gasoline shall be 3.5% oxygen by

weight, starting October 1, 1997.

The District calculated the CO emission reduction benefit for a

3.5% oxygen program in the Valley, compared to no oxygen. The

calculation showed approximately a 38% emission benefit. The District's

oxygenated gasoline program remains the more cost effective CO control

measure when compared to its smog check/repair, traffic flow

improvements, winter RVP limit, transit pass program, and the federal

motor vehicle emission control program.

The Clark County oxygenated fuels SIP revision included all the EPA

required information (under appendix V, 40 CFR part 51) including: A

letter from the designated state official requesting that the revision

be incorporated into the SIP; evidence that the District has legal

authority to adopt, implement and enforce the adopted revision;

evidence of the public notice listing the rule or plan revision;

evidence that a public hearing was held; and copies of public comments

generated during the public comment period.

The SIP revision also included the required technical support

information which included: Identification of regulated pollutants

affected by the revision; and identification of the locations of the

affected major areas.

(b) Analysis of Las Vegas oxygenated gasoline preemption issues.

In response to concerns raised by the Western States Petroleum

Association during the District's rule adoption process, the District

requested EPA's opinion regarding whether the 3.5% oxygen requirement

is preempted under the CAA. EPA's analysis was provided to the District

and WSPA by letter dated May 26, 1998, from Margo T. Oge, Director,

U.S. EPA Office of Mobile Sources, and is summarized below. The full

analysis is contained in the docket for this action.

EPA does not believe that Clark County's requirement is preempted

under the Clean Air Act. State requirements like Clark County's are

governed by the following provisions in the Act: (1) Section 211(m),

which requires certain states with areas exceeding the National Ambient

Air Quality Standard for carbon monoxide (CO) to establish wintertime

oxygenated gasoline programs, (2) section 211(c)(4), which prohibits

certain state fuel regulations adopted for purposes of control of

pollution from motor vehicles; and (3) section 116 and other provisions

in Title I of the CAA, which give the states primary responsibility for

meeting the NAAQS and reserve authority to the states to establish more

stringent air pollution control limitations than those established by

EPA. State provisions can also potentially be preempted based on

conflict with the CAA and federal fuel specifications of the oxygen

content of gasoline.

Clark County's 3.5% fuel oxygen content requirement is neither

barred by section 211(m) of the CAA, nor preempted by the CAA, either

explicitly under section 211(c)(4)(A) or implicitly based on the

judicial doctrines of conflict preemption or field preemption.

Section 211(m) requires that certain states adopt a requirement

that gasoline be blended to contain not less than 2.7 % oxygen by

weight. EPA believes that a state may satisfy this requirement by

requiring gasoline to contain 2.7% oxygen or by setting a content

requirement higher than 2.7%. This is consistent with the text of the

section 211(m), the structure of the Act, and the legislative history

of this provision.

[[Page 68417]]

Clark County's requirement that gasoline contain 3.5% oxygen by weight

is not prohibited by section 211(m)(2).

Clark County's 3.5% oxygen requirement also is not preempted by

section 211(c)(4)(A) of the Act. Congress required states to adopt the

elements of an oxygenated gasoline program specified in section 211(m)

and to submit them as a SIP revision, which would be approved by EPA.

Congress' specification of the necessary elements of an approvable SIP

revision in section 211(m) indicates Congress' intent that this

provision take precedence over the more general provisions of section

211(c)(4)(A) and that EPA approve a SIP revision that includes the

program elements specified under section 211(m) without a further

showing of necessity under section 211(c)(4)(C). A state requirement of

greater than 2.7% oxygen content is within the range of oxygen content

requirements that Congress authorized and envisioned under section

211(m) and is not subject to section 211(c)(4).

Clark County's requirement of 3.5% oxygen content is also not

preempted by the Clean Air Act based on conflict. Conflict occurs when

it is impossible for a private party to comply with both state and

federal requirements, or where state law is an obstacle to the

accomplishment of Congressional purpose. Such conflict does not exist

in this instance. It is practically and legally possible to blend and

supply gasoline that meets the federal conventional gasoline

requirements and has an oxygen content of 3.5%. Clark County's program

is not an obstacle to accomplishing Congressional purpose; rather it is

consistent with the requirements of sections 211(m) and 211(C)(4).

Clark County's requirement of 3.5% oxygen content is also not

preempted by the Clean Air Act based on field preemption because

federal regulation in this area is not so pervasive as to preclude

supplementation by the states, nor is the federal interest in the field

sufficiently dominant to preempt state action.

In summary, EPA has evaluated the submitted oxygenated gasoline

program revision and has determined that it is consistent with the CAA,

EPA regulations, and EPA policy. Therefore, Clark County Health

District, Air Pollution Control (APC) Section 53, Oxygenated Gasoline

Program is being proposed for approval under section 110(k)(3) of the

CAA as meeting the requirements of section 110(a) and Part D.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

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

[[Page 68418]]

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 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated: December 1, 1998.

Laura Yoshii,

Acting Regional Administrator, Region IX.

[FR Doc. 98-32891 Filed 12-10-98; 8:45 am]

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