Approval and Promulgation of Implementation Plans; California Owens Valley Nonattainment Area; PM-10

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

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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

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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.

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[FR Doc. 99-22930 Filed 9-2-99; 8:45 am]

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