[Federal Register Volume 64, Number 171 (Friday, September 3, 1999)]
[Rules and Regulations]
[Pages 48305-48307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22930]


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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

[[Page 48306]]

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

[[Page 48307]]

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.
* * * * *
[FR Doc. 99-22930 Filed 9-2-99; 8:45 am]
BILLING CODE 6560-50-P