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

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]

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