[Federal Register Volume 65, Number 115 (Wednesday, June 14, 2000)]
[Proposed Rules]
[Pages 37324-37331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15032]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NV-022-0022; FRL-6715-9]


Approval and Promulgation of Implementation Plans; Nevada--Las 
Vegas Valley Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove the moderate and serious 
nonattainment area state implementation plans (SIPs) submitted by the 
State of Nevada for attaining the particulate matter (PM-10) national 
ambient air quality standards (NAAQS) in the Las Vegas Valley. EPA is 
proposing to disapprove the reasonably available control measure/best 
available control measure (RACM/BACM) and rate of progress provisions 
in both the moderate and serious area SIPs, and the attainment 
demonstration provision in the serious area SIP. EPA is also proposing 
to deny the State's request for an extension to December 31, 2006 to 
attain the PM-10 NAAQS in the area. If EPA takes a final disapproval 
action, it will trigger the 18-month clock for mandatory application of 
sanctions and the 2-year time clock for a federal implementation plan 
(FIP) under the Clean Air Act (CAA).

DATES: Written comments on this proposal must be received by August 14, 
2000.

ADDRESSES: Comments should be addressed to the EPA contact below. 
Copies of the State's submittal and other information are contained in 
the docket for this rulemaking. The docket is available for inspection 
during normal business hours at the following location: U. S. 
Environmental Protection Agency, Region 9, Air Division, 75 Hawthorne 
Street, San Francisco, CA 94105-3901. The docket can also be viewed at 
our web site: www.epa.gov/region9/.
    Copies of the SIP materials are also available for inspection at 
the addresses listed below: Nevada Division of Environmental 
Protection, 333 West Nye Lane, Carson City, Nevada, 89710; and, Clark 
County Department of Comprehensive Planning, 500 South Grand Central 
Parkway, 3012, Las Vegas, Nevada, 89155-1741.

FOR FURTHER INFORMATION CONTACT: Larry Biland, U. S. Environmental 
Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, 
San Francisco, CA 94105-3901. (415) 744-1227, e-mail address: 
<a href="/cdn-cgi/l/email-protection#fc9e95909d9298d2909d8e8e85bc998c9dd29b938a"><span class="__cf_email__" data-cfemail="e2808b8e838c86cc8e8390909ba2879283cc858d94">[email protected]</span></a>

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements

1. Designation and Classification
    On the date of enactment of the 1990 CAA Amendments, PM-10 areas, 
including the Las Vegas Valley Planning Area, meeting the 
qualifications of section 107(d)(4)(B) of the amended Act, were 
designated nonattainment by operation of law. See 56 FR 11101 (March 
15, 1991). The boundaries of the Las Vegas Valley nonattainment area 
(Hydrologic Unit #212) are codified at 40 CFR 81.329.
    Once an area is designated nonattainment, section 188 of the CAA 
outlines the process for classification of the area and establishes the 
area's attainment deadline. In accordance with section 188(a), at the 
time of designation, all PM-10 nonattainment areas, including the Las 
Vegas Valley, were initially classified as moderate by operation of 
law. Section 188(b)(1) of the Act further provides that moderate areas 
can subsequently be reclassified as serious before the applicable 
moderate area attainment date if at any time EPA determines that the 
area cannot ``practicably'' attain the PM-10 NAAQS by this attainment 
date.
    Nevada submitted a moderate area PM-10 plan for Las Vegas Valley on 
December 6, 1991. Based on this submittal, EPA determined on January 8, 
1993, that the Las Vegas Valley could not practicably attain both the 
annual and 24-hour standards by the applicable attainment deadline for 
moderate areas (December 31, 1994, per section 188(c)(1) of the Act), 
and reclassified the Las Vegas Valley as serious (58 FR 3334). In 
accordance with section 189(b)(2) of the Act, SIP revisions for the Las 
Vegas Valley addressing the requirements for serious PM-10 
nonattainment areas in section 189(b) and (c) of the Act were required 
to be submitted by August 8, 1994 and February 8, 1997.
2. Moderate Area Planning Requirements
    The air quality planning requirements for PM-10 nonattainment areas 
are set out in subparts 1 and 4 of Title I of the Clean Air Act. Those 
states containing initial moderate PM-10 nonattainment areas were 
required to submit, among other things, the following provisions by 
November 15, 1991:
    (a) Provisions to assure that reasonably available control measures 
(RACM) (including such reductions in emissions from existing sources in 
the area as may be obtained through the adoption, at a minimum, of 
reasonably available control technology (RACT)) shall be implemented no 
later than December 10, 1993 (CAA sections 172(c)(1) and 189(a)(1)(C));
    (b) Provisions to assure implementation of RACT on major stationary 
sources of PM-10 precursors except where EPA has determined that such 
sources do not contribute significantly to exceedances of the PM-10 
standards (CAA section 189(e));
    (c) Either a demonstration (including a complete emissions 
inventory and air quality modeling) that the plan will provide for 
attainment as expeditiously as practicable but no later than December 
31, 1994 or a demonstration that attainment by that date is 
impracticable (CAA sections 188(c)(1) and 189(a)(1)(B));

[[Page 37325]]

    (d) For plan revisions demonstrating attainment, quantitative 
milestones which are to be achieved every 3 years and which demonstrate 
reasonable further progress (RFP) toward attainment by December 31, 
1994 (CAA section 189(c)); and
    (e) For plan revisions demonstrating impracticability, such annual 
incremental reductions in PM-10 emissions as are required by part D of 
the Act or may reasonably be required by the Administrator for the 
purpose of ensuring attainment of the PM-10 NAAQS by the applicable 
attainment date (CAA sections 172(c)(2) and 171(1)).
    Moderate area plans were also required to meet the generally 
applicable SIP requirements for reasonable notice and public hearing 
under section 110(l), necessary assurances that the implementing 
agencies have adequate personnel, funding and authority under section 
110(a)(2)(E)(i) and 40 CFR 51.280; and the description of enforcement 
methods as required by 40 CFR 51.111, and EPA guidance implementing 
these sections.
3. Serious Area Planning Requirements
    Moderate PM-10 areas that have been reclassified to serious, such 
as the Las Vegas Valley area, in addition to meeting the moderate area 
requirements outlined above, must submit a plan that includes 
provisions addressing additional requirements. The additional serious 
area requirements that are relevant to this proposed action include:
    (a) A demonstration (including a complete emissions inventory and 
air quality modeling) that the plan provides for attainment of the PM-
10 standards by December 31, 2001, or for any area seeking an extension 
of that date, a demonstration that attainment by 2001 is impracticable 
and a demonstration of attainment by the most expeditious alternative 
date practicable (CAA sections 188(c)(2) and 189(b)(1)(A));
    (b) Provisions to assure that the best available control measures 
(BACM) (including such reductions in emissions from existing sources in 
the area as may be obtained through the adoption, at a minimum, of best 
available control technology (BACT)) for the control of PM-10 shall be 
implemented no later than 4 years after the area is reclassified (CAA 
section 189(b)(1)(B));
    (c) Provisions to assure implementation of BACT on major stationary 
sources of PM-10 precursors except where EPA has determined that such 
sources do not contribute significantly to exceedances of the PM-10 
standards (CAA section 189(e)); and
    (d) Quantitative milestones which are to be achieved every 3 years 
and which demonstrate RFP toward attainment by the applicable 
attainment date (CAA section 189(c)).
    As discussed above in connection with the moderate area plan 
requirements, SIPs submitted to meet the CAA's serious area 
requirements must conform to general requirements applicable to all 
SIPs.

B. EPA Guidance

    EPA has issued a ``General Preamble'' \1\ describing EPA's 
preliminary views on how the Agency intends to review SIPs and SIP 
revisions submitted under Title I of the Act, including those state 
submittals containing moderate PM-10 nonattainment area SIP provisions. 
EPA has also issued an Addendum to the General Preamble (Addendum) 
describing the Agency's preliminary views on how it intends to review 
SIPs and SIP revisions containing serious area plan provisions.\2\
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    \1\ See ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 
57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992).
    \2\ See ``State Implementation Plans for Serious PM-10 
Nonattainment Areas, and Attainment Date Waivers for PM-10 
Nonattainment Areas Generally; Addendum to the General Preamble for 
the Implementation of Title I of the Clean Air Act Amendments of 
1990,'' 59 FR 41998 (August 16, 1994).
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1. RACM/BACM
    Sections 172(c)(1) and 189(a)(1)(C) read together require that 
moderate area PM-10 SIPs include RACM and RACT for existing sources of 
PM-10. These SIPs were to provide for implementation of RACM/RACT no 
later than December 10, 1993. Since the moderate area deadline for the 
implementation of RACM/RACT has passed, EPA has concluded that the 
RACM/RACT required in the State's moderate plan must now be implemented 
as soon as possible. Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). 
EPA has interpreted this requirement to be ``as soon as practicable.'' 
63 FR 15920, 15926 (Apr. 1, 1998).
    The methodology for determining RACM/RACT is described in detail in 
the General Preamble. 57 FR at 13540-13541. In summary, EPA suggests 
starting to define RACM with the list of available control measures for 
fugitive dust, residential wood combustion, and prescribed burning 
contained in Appendices C1, C2, and C3 of the General Preamble and 
adding to this list any additional control measures proposed and 
documented in public comments. The state can then cull from the list 
any measures for insignificant emission sources of PM-10 and any 
measures that are unreasonable for technological or economic reasons. 
The General Preamble does not define insignificant except to say that 
it would be unreasonable to apply controls to sources that are 
negligible (``de minimis'') contributors to ambient concentrations. 
However, in its serious area plan guidance, EPA does establish a 
presumption, for use in BACM determinations, that a ``significant 
contributor'' source category as one that contributes 1 <greek-m>g/
m<SUP>3</SUP> or more of PM-10 to a location of annual violation and 5 
<greek-m>g/m<SUP>3</SUP> to a location of 24-hour violation. Addendum 
at 42011. EPA has also used this same definition to define significance 
in determining which source categories require the application of RACM. 
See 63 FR 41326, 41331 (Aug. 3, 1998).
    For any RACM that are rejected by the state, the plan must provide 
a reasoned justification for the rejection. Once the final list of RACM 
is defined, each RACM must be converted into a legally enforceable 
vehicle such as a rule, permit, or other enforceable document. General 
Preamble at 13541.
    Under CAA section 189(b)(2), for moderate areas that have been 
reclassified as serious under section 188(b)(1), the state must submit 
BACM 18 month after reclassification, i.e., August 8, 1994 for the Las 
Vegas Valley area, and must implement those measures four years after 
reclassification, i.e., by February 8, 1997. As with the RACM/RACT 
implementation deadline, the BACM/BACT deadline has passed. Therefore 
BACM/BACT must now be implemented as soon as practicable.
    BACM is defined as the ``maximum degree of emission reduction of 
PM-10 and PM-10 precursors from a [significant] source [category] which 
is determined on a case-by-case basis, taking into account energy, 
environmental, and economic impacts and other costs, to be achievable 
for such sources through application of production processes and 
available methods, systems, and techniques. . . .'' Addendum at 42010. 
BACM/BACT must be determined and documented consistent with the 
Addendum (at 42012-14) and must be applied, at a minimum, to each 
significant source or source category. Addendum at 42010. The state 
must document its selection of BACM by showing what control measures 
applicable to each significant source category were considered. 
Addendum at 42014. BACM should go beyond existing RACM controls and can 
include

[[Page 37326]]

expanded use of RACM controls (e.g., paving more miles of unpaved 
roads). Addendum at 42013.
2. RFP/Quantitative Milestones
    Both PM-10 moderate and serious area nonattainment SIPs 
demonstrating attainment must include quantitative milestones to be 
achieved every three years until the area is designated attainment and 
must demonstrate RFP toward attainment by the applicable date. CAA 
section 189(c)(1). EPA has addressed these requirements in several 
guidance documents. See the General Preamble at 13539, the Addendum at 
42015-42017, and the memorandum from Sally Shaver, EPA, to EPA Division 
Directors, ``Criteria for Granting 1-Year Extensions of Moderate PM-10 
Nonattainment Area Attainment Dates, Making Attainment Determinations, 
and Reporting on Quantitative Milestones,'' November 14, 1994 (Shaver 
memorandum). Of these guidance documents, the most comprehensive is the 
Addendum which discusses both the RFP annual incremental reduction 
requirement and the appropriate interpretation of the milestone 
requirement as it relates to moderate areas that have been reclassified 
to serious. EPA has considerable discretion in reviewing the SIP to 
determine whether the annual incremental emission reductions to be 
achieved are reasonable in light of the statutory objective of timely 
attainment. Addendum at 42015.
    With respect to the quantitative milestone requirement, for initial 
moderate areas, EPA concluded that the SIP should initially address at 
least two milestones and that the starting point for the first 3-year 
period would be the SIP submittal due date, i.e. November 15, 1991. EPA 
further concluded that since the time lag between the first milestone 
date (November 15, 1994) and the December 31, 1994 attainment deadline 
was de minimis, emission reduction progress made between the submittal 
date and December 31, 1994 would satisfy the first milestone. The 
second milestone to be addressed by these initial moderate area SIPs 
was November 15, 1997. General Preamble at 131539, Addendum at 42016, 
and Shaver memorandum. For moderate areas that are reclassified as 
serious, the third milestone achievement date is November 15, 2000. 
Addendum at 42016. The quantitative milestones should consist of 
elements that allow progress to be quantified or measured, e.g., 
percent compliance with implemented control measures. Addendum at 
42016.
    EPA will assess whether an area has achieved RFP in conjunction 
with determining compliance with the quantitative milestone 
requirement. Thus a state should address compliance with both 
requirements in its RFP/milestone reports. The contents of these 
reports is discussed in the General Preamble, the Addendum, and the 
Shaver memorandum.

II. Evaluation of the State's Submittals

A. Identification of SIPs

    This proposal covers the PM-10 moderate area nonattainment plan 
titled ``PM-10 Air Quality Implementation Plan, Las Vegas Valley, Clark 
County, Nevada'', (1991 Moderate Plan) submitted to EPA by the Nevada 
State Department of Natural Resources and Conservation on December 6, 
1991; a February 15, 1995 submittal of an ``Addendum to the `Moderate 
Area' PM-10 State Implementation Plan for the Las Vegas Valley'' (1995 
RACM Addendum); a BACM analysis plan titled ``Providing for the 
Evaluation, Adoption and Implementation of Best Available Control 
Measures and Best Available Control Technology to Improve PM-10 Air 
Quality,'' (1994 BACM Plan) submitted on December 6, 1994; and the PM-
10 serious area nonattainment plan for the Las Vegas Valley 
nonattainment area titled ``Particulate Matter (PM-10) Attainment 
Demonstration Plan'' (1997 Serious Plan), submitted to EPA on August 
25, 1997. ``Moderate Area SIP'' in this proposal refers collectively to 
the 1991 Moderate Plan and the 1995 RACM Addendum. ``Serious Area SIP'' 
refers collectively to the 1994 BACM Plan and the 1997 Serious Plan.
    The Clark County Department of Comprehensive Planning and the Clark 
County Health District are the agencies responsible for addressing PM-
10 pollution in the Las Vegas Valley. The Clark County Department of 
Comprehensive Planning is responsible for the development of the SIP. 
The Clark County Health District is responsible for development of 
rules and regulations, air permits, enforcement, and air monitoring.
1. The Las Vegas Valley Moderate Area SIP
    Since the moderate area attainment deadline, December 31, 1994, has 
passed, and the Las Vegas Valley has been reclassified from a moderate 
to a serious nonattainment area, EPA believes that the moderate area 
attainment demonstration requirements have been superseded by the 
area's reclassification. See, e.g., 61 FR 54972, 54974 (October 23, 
1996). Therefore, EPA addresses only the RACM/RACT and rate of progress 
provisions of the Moderate Area SIP in this notice.
    a. Evaluation of RACM/RACT. EPA is proposing to disapprove the RACM 
demonstration in the Moderate Area SIP because, among other things, the 
control measures are not comprehensive enough to constitute RACM for 
any source category identified in the Moderate Area SIP as significant 
for the annual or 24-hour standard. For example, the only control 
measures submitted as RACM for disturbed vacant land include textual 
references to Clark County's efforts to encourage limits on off-road 
motor vehicle use on public lands and local government policies 
promoting infill development.\3\ These measures do not establish 
requirements that prevent vacant land disturbances or mitigate 
disturbed vacant land throughout the PM-10 nonattainment area and thus 
do not meet the RACM requirements of the CAA.
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    \3\ 1994 BACM Plan, pgs. 35-36 and 1995 RACM Addendum, pg. 5.
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    EPA is also proposing to disapprove the Moderate Area SIP with 
respect to the RACT requirement for primary PM-10 sources because 
existing sources are not subject to controls as required by the CAA 
\4\. Furthermore, we cannot fully approve Rule 34, New Source 
Performance Standards for Nonmetallic Mineral Mining and Processing, 
which was submitted as RACT. For a more detailed review of RACM/RACT, 
see the Technical Support Document (TSD) that is part of this docket.
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    \4\ 1991 Moderate Plan, pg. 36.
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    b. Evaluation of RFP /Quantitative Milestones. The 1991 Moderate 
Plan includes a demonstration of attainment for the annual standard and 
an impracticablity demonstration for the 24-hour standard. See 1991 
Moderate Plan, pp. 54-58.\5\ PM-10 moderate area nonattainment SIPs 
demonstrating attainment must include quantitative milestones to be 
achieved every three years until the area is redesignated attainment 
and must demonstrate RFP toward attainment of both standards by the 
applicable date. CAA sections 172(c)(2) and 189(c)(1). Section 171(1) 
of the Act defines RFP as ``such annual incremental reductions in 
emissions of the relevant air pollutant as are required by this part 
[part D of title I] or may reasonably be required by the Administrator 
for the purpose of ensuring attainment of the applicable

[[Page 37327]]

national ambient air quality standard by the applicable date.'' For PM-
10 moderate area nonattainment SIPs demonstrating impracticability, 
sections 172(c)(2) and 171(1) apply. The Moderate Area SIP for the Las 
Vegas Valley does not contain any annual emission reductions or 
quantitative milestones. Therefore, EPA proposes to disapprove the 
Moderate Area SIP for failing to meet the CAA requirements for RFP and 
quantitative milestones.
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    \5\ As noted previously, EPA is proposing no action on these 
demonstrations as the moderate area attainment requirements for the 
Las Vegas Valley have been superseded by those applicable to serious 
areas.
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2. The Las Vegas Valley Serious Area SIP
    a. Emission Inventory. All emission inventories must be current, 
comprehensive, and complete. Section 172(c)(3). Current inventories 
present emissions for a relatively recent year. Comprehensive 
inventories desegregate the emission sources into many. Complete 
inventories address all of the sources of emissions of the subject 
pollutant in the area of concern.
    The 1997 Serious Plan describes the average annual emissions of 
directly emitted PM-10 for the base and current attainment years (1995 
and 2001) and the March 11, 1994 and 2001 design day for the 1,500 
square mile Las Vegas Valley. The significant sources for the 24-hour 
standard were found to be construction activities which contribute 
48.5%, disturbed vacant land with 30.9%, and natural sources \6\ with 
14% of the total. The total for these three sources is 93.4%. The 
significant sources for the annual standard were found to be 
construction activities which contribute 42.6%. Paved and unpaved road 
dust contributes 11.1%, disturbed vacant land with 6.4%, and natural 
sources with 36.2% of the total. The total for these four sources is 
96.3%.\7\
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    \6\ Natural sources are discussed further in the TSD.
    \7\ 1997 Serious Plan, pp. 35-37.
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    Generally the inventory estimates in the 1997 Serious Plan are well 
documented, the inventory is reasonably current and the categorization 
of the inventory is fairly complete. However, the 1997 Serious Plan's 
inventory has several significant shortcomings:
    <bullet> The plan does not address inventories for condensible 
particulate or PM-10 precursors, including volatile organic compounds 
(VOC), nitrogen oxides (NOx), sulfur dioxide (SO2), and ammonia (NH3). 
The insignificance of these particulate sources is address in the 
modeling section of this Notice. Based on air quality analysis, these 
sources would appear to have a de minimis impact.
    <bullet> The plan does not include emission estimates for airport 
activities, agricultural activities, various cooking methods, off-road 
vehicle exhaust, and lawn care equipment.
    The plan acknowledges that primary, condensible, and secondary PM-
10 categorically constitute what is called PM-10, but does not address 
condensible and secondary PM-10 in the inventory. The plan's 
explanation for not including emissions from condensible and secondary 
PM-10 is that these emission categories do not contribute significantly 
to the emission or air quality totals. Condensible and secondary PM-10 
generally are not addressed in PM-10 inventories because of their de 
minimis ambient air quality contribution. Clark County will need to 
include emissions from these source categories of directly emitted PM-
10 in its revised inventories and cite evidence of the triviality of 
those secondary and condensible emissions contributions.
    EPA proposes to disapprove the emissions inventory given these 
deficiencies.
    b. Mobile Source Emissions Budget. The 1997 Serious Plan did not 
establish any PM-10 emission budgets for the annual or 24-hour PM-10 
standard. Thus EPA determined in a letter dated July 12, 1999, to the 
Nevada Division of Environmental Protection, that the area did not have 
adequate budgets for purposes of transportation conformity.
    c. Evaluation of BACM/BACT. As discussed in the summary of CAA 
requirements, the Serious Area SIP for the Las Vegas Valley must 
include control measures consistent with the CAA requirements for BACM 
and BACT. EPA has determined that, collectively, the submitted rules, 
ordinances, permits and other measures do not meet the BACM 
requirements for any significant source category for either PM-10 
standard. In summary, EPA is proposing to disapprove the Serious Area 
SIP for failure to provide for the implementation of BACM based upon 
the following four deficiencies:
    <bullet> Failure to demonstrate that the control measures in the 
Serious Area SIP constitute BACM for significant sources. EPA finds 
that the Serious Area SIP either lacks BACM for some significant 
sources without adequate justification or the submitted measures are 
not comprehensive enough to provide for the implementation of BACM. For 
example, no measures were submitted as BACM to control vacant lots, 
unpaved parking lots,\8\ or paved road dust.
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    \8\ While County Ordinance 1541 was submitted as BACM for 
stationary sources and it contains requirements for unpaved parking 
lots located at certain types of non-metallic mineral plants, there 
are no measures to address other unpaved parking lots throughout the 
PM-10 nonattainment area.
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    <bullet> Failure to provide an adequate justification for available 
control measures not being implemented. EPA's RACM guidance indicates 
that SIP submittals should contain a reasoned justification for partial 
or full rejection of any available control measures; similar principles 
apply to consideration of BACM. \9\ For example, although the 1994 BACM 
Plan lists controlling unpaved shoulders and containing truck spillage 
as candidate BACM for paved roads, the plan indicates that an addendum 
will be provided in 1997 that documents the evaluation process and 
adoption and implementation of specific control measures. \10\ However, 
no subsequent BACM evaluation for paved roads was submitted to EPA.
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    \9\ 57 FR 13498, 13541 (April 16, 1992); Addendum at 42014.
    \10\ Pg. 53.
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    <bullet> Lack of sufficient stringency in some submitted measures. 
Certain requirements (or lack thereof) in rules, ordinances, or permits 
require further stringency to meet BACM, and/or have not been properly 
justified by the District as supporting a BACM level of control. For 
example, EPA believes that the standards established in Rule 41 for 
construction sites and other sources may be insufficiently protective 
in many circumstances. Coupled with the fact that construction site 
permits lack other standards by which compliance can be gauged, there 
is no assurance that the required construction site controls will be 
implemented to an extent that meets BACM requirements. The 1994 BACM 
Plan contains little discussion as to whether or how the specific 
control measures in the Las Vegas Valley are stringent enough to meet 
the BACM level of control.
    <bullet> Failure of certain measures to be fully enforceable. On a 
macro-scale, this encompasses the concern that important control 
measures have not been submitted to EPA in a format that can be 
approved into the SIP and enforced as such.\11\ On a micro-scale, vague 
language or the absence of appropriate standards in permits, rules or 
ordinances makes them difficult to enforce in an equitable, repeatable, 
accurate and practical manner to achieve emission reductions. This, in 
turn, lessens the ability of the control

[[Page 37328]]

measures to result in a BACM level of control.
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    \11\ For example, a copy of a dust control permit form for 
construction sites, containing boilerplate requirements, was 
included in the 1997 Serious Plan. However, these requirements 
should be placed into a rule that Clark County Health District 
adopts and submits to EPA.
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    The BACM deficiencies summarized in the preceding paragraphs 
reflect that discussion of BACM in the Serious Area SIP is limited and 
does not show that the adopted PM-10 control measures for any 
significant source category collectively meet the CAA's BACM 
requirements. This may be due to a belief expressed in the 1997 Serious 
Plan that limitations in the accuracy of PM-10 emission inventories and 
the lack of specific information on control efficiencies preclude a 
meaningful application of the procedures for determining BACM.\12\ 
However, EPA does not view this statement as an adequate reason for 
failure to implement BACM or, alternatively, to provide a justification 
for not implementing BACM. Furthermore, general estimates of control 
efficiencies are available \13\ and are not required to be exact in 
order to evaluate whether a candidate or adopted measure meets the BACM 
requirements.
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    \12\ 1997 Serious Plan, pg. 24.
    \13\ EPA's guidance documents on fugitive dust sources provide 
information on control efficiencies: ``Control of Open Fugitive Dust 
Sources'', U.S. EPA, September 1988 and ``Fugitive Dust Background 
Document and Technical Information Document for Best Available 
Control Measures'', U.S. EPA, September 1992.
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    EPA is also proposing to disapprove the Serious Area SIP with 
respect to the BACT requirement for primary PM-10 sources. This is 
because existing sources are not subject to controls that are in place 
for new and modified sources and there is no justification for not 
implementing those controls. Also, the Serious Area SIP does not 
provide sufficient information on stationary source requirements for 
EPA to evaluate whether BACT is being implemented. Information to be 
submitted includes all control equipment and/or emission limit 
requirements, test method requirements, and reporting/recordkeeping 
requirements. For EPA's complete review of BACM/BACT, see the TSD that 
is part of this docket.
    d. Major Sources of PM-10 Precursors Need BACT Rules. Under section 
189(e), BACT controls are required for all existing major sources of 
VOC, NO<INF>X</INF>, SO<INF>X</INF>, and ammonia in the Las Vegas 
nonattainment area unless they do not contribute significantly to PM-10 
levels which exceed the standards in the area. The inventory does not 
quantify these sources for their secondary PM-10 contribution and 
therefore EPA cannot determine if controls are needed. Therefore we are 
proposing to disapprove the Serious Area SIP's BACT demonstration for 
failure to include such controls or justify why they are not required.
    e. Reasonable Further Progress (RFP)/Quantitative Milestones. PM-10 
serious area nonattainment SIPs must include quantitative milestones to 
be achieved every three years until the area is redesignated attainment 
and must demonstrate RFP toward attainment of both standards by the 
applicable date. CAA section 189(c)(1). The 1997 Serious Plan for the 
Las Vegas Valley does not contain annual incremental emission 
reductions or quantitative milestones for either the annual or 24-hour 
standard. Therefore, EPA proposes to disapprove the plan for failing to 
meet the CAA requirement for RFP and quantitative milestones.
    f. Attainment Demonstration. Serious area PM-10 SIPs must provide a 
detailed demonstration (including air quality modeling) that the 
specified set of strategies will reduce PM-10 emissions so that the 
standards will be attained as soon as practicable but no later than 
December 31, 2001 or, for an extension beyond that date, a 
demonstration that attainment by December 31, 2001 would be 
impracticable and a demonstration of attainment by the most expeditious 
alternative date practicable. EPA considers the area to be in 
attainment of the NAAQS if 24-hour concentrations are 150 <greek-m>g/
m\3\ or less and the annual arithmetic mean is 50 <greek-m>g/m\3\ or 
less.
    The attainment demonstration in the 1997 Serious Plan applies to 
both the 24-hour and the annual NAAQS. The plan does purport to 
demonstrate attainment for the annual standard by 2001 with a modeled 
concentration of 49.79 <greek-m>g/m\3\, 0.21 <greek-m>g/m\3\ below the 
annual standard. The plan does not demonstrate attainment for the 24-
hour standard by 2001, since the modeled concentration of 212.35 
<greek-m>g/m\3\ is 62.35 <greek-m>g/m\3\ above the 24-hour 
standard.\14\ The submittal describes several modeling approaches used 
to assess the effect of control measures on ambient PM-10 
concentrations. This is in accord with the spirit of EPA modeling 
guidance, which recommends a combination of dispersion and receptor 
models. However, in the details of implementation of the modeling, the 
submittal falls short of this guidance. The following discussion 
applies to both the annual and the 24-hour NAAQS, unless otherwise 
indicated.
---------------------------------------------------------------------------

    \14\ 1997 Serious Plan, pp. 35-37.
---------------------------------------------------------------------------

    The Chemical Mass Balance (CMB) receptor modeling performed as part 
of the submittal confirmed that around 90% of the PM-10 in the Las 
Vegas Valley is due to fugitive dust, in general agreement with the 
emission inventory. Unfortunately CMB is not capable of distinguishing 
emissions from particular activities such as paved road dust, unpaved 
road dust, construction activities, etc., so it must be combined with 
another approach. CMB also showed that secondary particulates (those 
not directly emitted but forming in the atmosphere from precursors) and 
vehicle exhaust are small contributors to the area's PM-10 
concentrations, only a few percent. The main modeling approach used in 
the submittal was proportional rollback, in which it is assumed that a 
source category's contribution to observed PM-10 emissions is directly 
proportional to its share of the area's PM-10 emission inventory. This 
is appropriate when no other information is available, or if the 
sources are uniform across the area modeled.\15\ However, the sources 
are not likely uniform. Though PM-10 can have a regional component, 
generally a particular fugitive dust source has a fairly localized 
impact on air quality; the ISCST3 dispersion modeling done as part of 
the submittal confirmed that individual sources have minimal impact 
five miles away. Different areas will have different mixes of sources 
contributing to their PM-10 concentrations. Comparison of area-wide and 
sub-area emissions inventories shows many similarities in source 
categories' percent contributions, but also some differences, 
especially for paved road dust. Thus, a demonstration that the PM-10 
NAAQS are attained should take into account differences between sites. 
Ideally, dispersion modeling would be done to explicitly take into 
account different sources' distances from modeled locations, in order 
to show the effect of control measures throughout the area. At a 
minimum, proportional rollback should have been performed for multiple 
monitoring sites.\16\
---------------------------------------------------------------------------

    \15\ EPA memorandum ``PM-10 SIP Demonstrations for Small 
Isolated Areas With Spatially Uniform Emissions''--Robert Bauman & 
Joseph Tikvart 7/5/90.
    \16\ PM-10 SIP Development Guideline, EPA-450/2-86-001, June 
1987, section 6.4.2.
---------------------------------------------------------------------------

    Secondary particulates are not addressed in the proportional 
rollback modeling in the submittal. The effect of this is to 
inappropriately assume that control measures on primary particulates 
decrease secondary particulates at the same rate. Though secondaries 
are only a few percent of the PM-10 ambient concentrations, so this is 
not a large effect, they should be dealt with explicitly.
    In summary, though some solid work was done in preparing the 
modeling

[[Page 37329]]

portion of the submittal, it does not adequately account for 
differences in PM-10 source contributions at different locations. 
Additional dispersion and receptor modeling work could help with this, 
with a minimum being the use of proportional rollback at multiple sites 
representative of the varying mix of sources across the Las Vegas 
Valley. Lastly, secondary particulates should not implicitly be assumed 
to decline. The submittal's technical approach is inadequate for its 
goal of demonstrating attainment of the annual NAAQS, and also for 
demonstrating the impracticability of attaining the 24-hour NAAQS. The 
next SIP submittal should use a different approach.
    EPA concludes that, because the air quality modeling is not 
consistent with existing EPA guidelines, the impracticability and 
attainment demonstrations in the Serious Area SIP are not approvable. 
The impracticability demonstration is also not approvable because the 
plan does not provide for the implementation of BACM. Therefore, EPA 
proposes to disapprove the 24-hour standard impracticability 
demonstration and the annual standard attainment demonstration.
    g. Extension of the Attainment Deadline. CAA section 188(e) allows 
states to apply for up to a 5-year extension of the serious area 
attainment deadline of December 31, 2001. In order to obtain the 
extension, the state must demonstrate that: (1) attainment by 2001 
would be impracticable, (2) the state complied with all requirements 
and commitments pertaining to the area in the implementation plan for 
the area, (3) the state demonstrates to the satisfaction of the 
Administrator that the plan for the area includes the most stringent 
measures that are included in the plan of any state or are achieved in 
practice in any state, and can feasibly be implemented in the area.\17\ 
The state's request for an extension must also contain a demonstration 
of attainment by the most expeditious alternative date practicable. For 
a complete discussion of EPA's proposed interpretation of section 
188(e), see 65 FR 19964, 19967-19969 (Apr. 13, 2000)(proposed approval 
of the Maricopa County PM-10 serious area nonattainment plan). EPA is 
proposing to deny the State of Nevada's request for an extension for 
failing to adequately demonstrate that the area cannot practicably 
attain the 24-hour PM-10 standard by December 31, 2001. Therefore, the 
area's attainment deadline for both standards remains as soon as 
practicable but no later than December 31, 2001.
---------------------------------------------------------------------------

    \17\ Section 188(e) further provides: ``In determining whether 
to grant an extension, and the appropriate length of time for any 
such extension, the Administrator may consider the nature and extent 
of nonattainment, the types and numbers of sources or other emitting 
activities in the area (including the influence of uncontrollable 
natural sources and transboundary emissions from foreign countries), 
the population exposed to concentrations in excess of the standard, 
the presence and concentration of potentially toxic substances in 
the mix of particulate emissions in the area, and the technological 
and economic feasibility of various control measures.''
---------------------------------------------------------------------------

    h. Transportation Conformity Budgets. EPA's conformity rule, 40 CFR 
part 93, requires that transportation plans, programs, and projects 
conform to the SIP and establishes the criteria and procedures for 
determining whether or not they do conform. Conformity to a SIP means 
that transportation activities will not produce new air quality 
violations, worsen existing violations, or delay timely attainment of 
the NAAQS. The link between the SIP and transportation planning 
activities is the conformity emission budget(s) contained in the SIP. 
On March 2, 1999, the D.C. Circuit Court of Appeals ruled that 
submitted SIPs cannot be used for conformity determinations unless EPA 
has affirmatively found the conformity budget adequate through a 
process providing for public notice and comment. Where EPA finds a 
budget inadequate, it cannot be used for conformity determinations. As 
discussed in (2)(b), EPA determined that the PM-10 mobile source 
emission budgets for the Las Vegas Valley are inadequate and thus 
cannot be used for conformity determination. The criteria by which we 
determine whether a SIP's motor vehicle emission budgets are adequate 
for conformity purposes are outlined in 40 CFR 93.118(e)(4).
3. General SIP Requirements
    a. Adequate Public Process. On November 5,1991, the Clark County 
Board of County Commissioners (CCBCC) adopted the Las Vegas Valley PM-
10 Air Quality Implementation Plan (1991 Moderate Plan), after 
providing public notice and opportunity to comment. The State submitted 
the plan as a revision to the Nevada PM-10 SIP (letter from Bob Miller, 
Governor of Nevada, to Daniel McGovern, EPA Regional Administrator 
dated December 6, 1991). The SIP submittal includes proof of 
publication for the notice of the State public hearing. This submittal 
became complete by operation of law under CAA section 110(k)(1).\18\ We 
believe that the public process associated with the 1991 Moderate Plan 
meets the procedural requirements of CAA section 110(a) and (l) and 40 
CFR 51.102.
---------------------------------------------------------------------------

    \18\ 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).
---------------------------------------------------------------------------

    On December 6, 1994 CCBCC adopted ``Providing for the Evaluation 
and Implementation of Best Available Control Measures and Best 
Available Control Technology to Improve PM-10 Air Quality for the Las 
Vegas Valley'' (1994 BACM Plan), after providing public notice and 
opportunity to comment. The State submitted the plan as a revision to 
the Nevada SIP (letter from L.H. Dodgion, Administrator, to David 
Howekamp, EPA Director, Air and Toxics Division, dated February 15, 
1995). The SIP submittal includes proof of publication for the notice 
of CCBCC public hearing. This submittal became complete by operation of 
law. We believe that the public process associated with the 1994 BACM 
Plan meets the procedural requirements of CAA section 110(a) and (l) 
and 40 CFR 51.102.
    On August 25, 1997, CCBCC adopted the Las Vegas Valley Non-
attainment Area Clark County Nevada Serious Plan (1997 Serious Plan), 
after providing public notice and opportunity to comment. The State 
submitted the plan as a revision to the Nevada SIP (letter from L.H. 
Dodgion, Administrator, to Felicia Marcus, EPA Regional Administrator, 
dated September 11, 1997). The SIP submittal includes proof of 
publication for the notice of CCBCC public hearing. This submittal 
became complete by operation of law. We believe that the public process 
associated with the 1997 Serious Plan meets the procedural requirements 
of CAA section 110(a) and (l) and 40 CFR 51.102.
    b. Adequate Personnel and Funding.--Section 110(a)(2)(E)(i) of the 
Clean Air Act requires that implementation plans provide necessary 
assurances that the state (or the general purpose local government) 
will have adequate personnel and funding to carry out the plan. 
Requirements for resources are further defined in 40 CFR part 51, 
subpart L (51.230-232) and for resources in 40 CFR 51.280. States and 
responsible local agencies must demonstrate that they have the legal 
authority to adopt and enforce provisions of the SIP and to obtain 
information necessary to determine compliance. SIPs must also describe 
the resources that are available or will be available to the State and 
local agencies to carry out the plan, both at the time of submittal and 
during the 5-year period following submittal. The 1997 Serious Plan 
does not adequately address personnel and funding for the

[[Page 37330]]

air program in the Las Vegas Valley. The plan needs to detail the 
number of personnel needed to carry out the air program as well as the 
funding level and commit to these levels for five years.
    c. Adequate Legal Authority.--Section 110(a)(2)(E)(i) of the Clean 
Air Act requires that implementation plans provide necessary assurances 
that the state (or the general purpose local government) will have 
authority under state or local law to carry out the plan. Requirements 
for legal authority are further defined in 40 CFR 51.230-232. States 
and responsible local agencies must demonstrate that they have the 
legal authority to adopt and enforce provisions of the SIP and to 
obtain information necessary to determine compliance. EPA finds that 
the State of Nevada has the legal authority to regulate air pollution 
as evidenced by Nevada Revised Statutes (NRS) 445B.100 through NRS 
445B.845.
    d. Description of Enforcement Methods.--Section 110(a)(2)(C) 
requires SIPs to include a program to provide for the enforcement of 
SIP measures. The implementing regulation for this section is found at 
40 CFR 51.111(a) and requires a control strategy to include a 
description of enforcement methods including (1) procedures for 
monitoring compliance with each of the selected control measures, (2) 
procedures for handling violations, and (3) the designation of the 
agency responsible for enforcement. Procedures for monitoring 
compliance with existing regulations are missing from the 1997 Serious 
Plan.

III. Summary of Proposed Action

A. Proposed Disapproval

    EPA is proposing to disapprove certain provisions of the Moderate 
Area SIP and Serious Area SIP submitted by the State of Nevada for 
attaining the PM-10 NAAQS in the Las Vegas Valley. Specifically, EPA is 
proposing to disapprove the RACM/BACM and RFP/milestone provisions for 
both the annual and 24-hour PM-10 standards in both the Moderate Area 
SIP and Serious Area SIP, and the emission inventory, transportation 
conformity budgets, and attainment demonstration provisions for both 
standards in the Serious Area SIP. EPA is also proposing to deny the 
State's request for an extension to December 31, 2006 to attain the 24-
hour PM-10 NAAQS in the area. If finalized in a subsequent EPA notice, 
these disapprovals will trigger the 18-month time clock for mandatory 
application of sanctions and 2-year time clock for a federal 
implementation plan under the Act as discussed below.

B. Consequences of the Proposed Disapproval

    The CAA establishes specific consequences if EPA disapproves a 
State plan. Section 179(a) sets forth four findings that form the basis 
for application of mandatory sanctions, including disapproval by EPA of 
a State's submission based on its failure to meet one or more required 
CAA elements. EPA has issued a regulation, codified at 40 CFR 51.31, 
interpreting the application of sanctions under section 179 (a) and 
(b). If EPA has not approved a SIP revision correcting the deficiency 
within 18 months of the effective date of a final rulemaking, 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 EPA has 
still not approved a SIP revision correcting the deficiency 6 months 
after the offset sanction is imposed, then the highway funding sanction 
will apply in the affected area, in accordance with 40 CFR 52.31. In 
addition, CAA section 110(c)(1) provides that EPA must promulgate a FIP 
no later than 2 years after a finding under section 179(a) unless EPA 
takes final action to approve a revised plan correcting the deficiency 
within 2 years of EPA's findings. For more details on the timing and 
implementation of the sanctions, see 59 FR 39859 (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.'' There are, however, certain exceptions to the general rule for 
the application of sanctions described above. The reader is referred to 
40 CFR 52.31(d) for the circumstances under which the application of 
sanctions may be stayed or deferred.
    One of the conformity consequences of the overall plan disapproval 
is commencement of a conformity freeze. Under a conformity freeze, the 
area can only move forward on transportation projects included in the 
first three years of the transportation plan and no new transportation 
plans can be adopted until the freeze is lifted. If the area submits a 
new PM-10 SIP with PM-10 budgets, once the PM-10 budgets are deemed 
adequate by EPA, the freeze is lifted. If the area is in a conformity 
freeze and a conformity lapse occurs, the area can not come out of the 
lapse until the freeze is lifted. Note that the conformity freeze would 
not begin until the effective date of the final plan disapproval. 
Today, EPA is proposing to disapprove portions of the PM-10 plans for 
the Las Vegas Valley and therefore the above mentioned time frames for 
imposing sanctions will not start until the effective date of any final 
disapproval.

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 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997),

[[Page 37331]]

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 
proposed 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 
proposed 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 proposed rule will not have a significant impact on 
a substantial number of small entities because disapprovals of SIP 
revisions under section 110 and subchapter I, part D of the Clean Air 
Act do not affect any existing requirements applicable to small 
entities. Federal disapproval of the State SIP submittal will not 
affect State-enforceability. Moreover, EPA's disapproval of the 
submittal would not impose any new Federal requirements. Therefore, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities.

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 proposed disapproval action 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. The proposed disapproval will 
not change existing requirements 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. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing new regulations. To comply with 
NTTAA, the EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to this proposed action. 
Today's proposed action does not require the public to perform 
activities conducive to the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Particulate matter, 
Reporting and recordkeeping requirements, Sulfur dioxide, Volatile 
organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 5, 2000.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 00-15032 Filed 6-13-00; 8:45 am]
BILLING CODE 6560-50-P


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