[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Proposed Rules]
[Pages 68415-68418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32891]


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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]
BILLING CODE 6560-50-U