[Federal Register Volume 62, Number 167 (Thursday, August 28, 1997)]
[Rules and Regulations]
[Pages 45531-45533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22948]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL--5883-7]


Final Rule Making a Finding of Failure to Submit a Required State 
Implementation Plan for Particulate Matter, California--Owens Valley

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action in making a finding, under the 
Clean Air Act (CAA or Act), that California failed to make a 
particulate matter (PM-10) nonattainment area state implementation plan 
(SIP) submittal required for the Owens Valley Planning Area under the 
Act. Under certain provisions of the Act, states are required to submit 
SIPs providing for, among other things, reasonable further progress and 
attainment of the PM-10 national ambient air quality standards (NAAQS) 
in areas classified as serious. The deadline for submittal of this plan 
for the Owens Valley Planning Area was February 8, 1997.
    This action triggers the 18-month time clock for mandatory 
application of sanctions and 2-year time clock for a federal 
implementation plan (FIP) under the Act. This action is consistent with 
the CAA mechanism for assuring SIP submissions.

EFFECTIVE DATE: This action is effective as of August 20, 1997.

FOR FURTHER INFORMATION CONTACT: Larry Biland, Air Planning Office 
(AIR-2), Air Division, U.S. EPA, Region 9 (AIR-2), 75 Hawthorne Street, 
San Francisco, California, 94105-3901, telephone (415) 744-1227.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1990, Congress amended the Clean Air Act to address, among other 
things, continued nonattainment of the PM-10 NAAQS.<SUP>1</SUP> Pub. L. 
101-549, 104 Stat. 2399, codified at 42 U.S.C., 7401-7671q (1991). On 
the date of enactment of the Amendments, PM-10 areas meeting the 
qualifications of section 107(d)(4)(B) of the amended Act were 
designated nonattainment by operation of law. These areas included all 
former Group I areas identified in 52 FR 29383 (August 7, 1987) and 
clarified in 55 FR 45799 (October 31, 1980), and any other areas 
violating the PM-10 NAAQS prior to January 1, 1989. The Owens Valley 
Planning Area (Owens Valley) was identified in the August 7, 1987, 
Federal Register notice (52 FR 29384). A Federal Register notice 
announcing all areas designated nonattainment for PM-10 at enactment of 
the 1990 amendments was published on March 15, 1991 (56 FR 11101). The 
boundaries of the Owens Valley nonattainment area (Hydrologic Unit 
<SUP><greek-i></SUP>18090103) were set forth in a November 6, 1991, 
Federal Register notice (56 FR 56694, codified for the State of 
California at 40 CFR 81.305).
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    \1\ EPA revised the NAAQS for particulate matter on July 1, 1987 
(52 FR 24672), replacing standards for total suspended particulates 
with new standards applying only to particulate matter up to 10 
microns in diameter (PM-10). At that time, EPA established two PM-10 
standards. The annual PM-10 standard is attained when the expected 
annual arithmetic average of the 24-hour samples for a period of one 
year does not exceed 50 micrograms per cubic meter (ug/m\3\). The 
24-hour PM-10 standard of 150 ug/m\3\ is attained if samples taken 
for 24-hour periods have no more than one expected exceedance per 
year, averaged over 3 years. See 40 CFR 50.6 and 40 CFR part 50, 
Appendix K.
    On July 18, 1997, EPA reaffirmed the annual PM-10 standard, and 
slightly revised the 24-hour PM-10 standard (62 FR 38651). The 
revised 24-hour PM-10 standard is attained if the 99th percentile of 
the distribution of the 24-hour results over 3 years does not exceed 
150 ug/m\3\ at each monitor within an area. On July 18, 1997, EPA 
also established two new standards for PM, both applying only to 
particulate matter up to 2.5 microns in diameter (PM-2.5).
    This finding applies to the outstanding obligation of the State 
to submit for the Owens Valley Planning Area a plan addressing the 
24-hour and annual PM-10 standards, as originally promulgated.
    Breathing particulate matter can cause significant health 
effects, including an increase in respiratory illness and premature 
death.
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    Once an area is designated nonattainment, section 188 of the 
amended Act outlines the process for classification of the area and 
establishes the area's attainment date. In accordance with section 
188(a), at the time of designation, all PM-10 nonattainment areas, 
including Owens 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.
    Air monitoring of the Owens Valley during the past 18 years has 
measured the highest PM-10 pollution in the United States, the result 
of water-gathering activities by the City of Los Angeles. California 
submitted a moderate area PM-10 SIP for Owens Valley on January 9, 
1992. Based on this submittal, EPA determined on January 8, 1993, that 
Owens Valley could not practicably attain by the applicable attainment 
deadline for moderate areas (December 31, 1994, per section 188(c)(1) 
of the Act), and reclassified Owens Valley as serious (58 FR 
3334).<SUP>2</SUP> In accordance with section 189 (b)(2) of the Act, 
the applicable deadline for submittal of a SIP for Owens Valley 
addressing the requirements for serious PM-10 nonattainment areas in 
section 189 (b) and (c) of the Act (58 FR 3340) is February 8, 1997 (4 
years after the effective date of the reclassification).
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    \2\ In reclassifying the Owens area, EPA observed that: 
``Ambient PM-10 levels in Owens Valley are among the highest in the 
country. In 1989, for instance, the highest 24-hour PM-10 
concentration observed in the area was 1861 micrograms per cubic 
meter (ug/m\3\) in contrast to the NAAQS of 150 ug/m\3\. The PM-10 
SIP for Owens Valley includes an analysis of wind direction and wind 
speed on days when PM-10 levels are high, which indicates that the 
major source causing violations of the PM-10 NAAQS in this area is 
Owens Dry Lake. Owens Dry Lake covers approximately 110 square miles 
near the south end of the planning area. Approximately 60 square 
miles of the lake is dry.'' (58 FR 3337)
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    These requirements, as they pertain to the Owens Valley 
nonattainment area, include:
    (a) A demonstration (including air quality modeling) that the plan 
will provide for attainment as expeditiously as practicable but no 
later than December 31, 2001, or an alternative demonstration that 
attainment by that date would be impracticable and that the plan 
provides for attainment by the most expeditious alternative date 
practicable (CAA Section 189(b)(1)(A) (i) and (ii); and
    (b) Quantitative milestones which are to be achieved every 3 years 
and which demonstrate reasonable further progress toward attainment by 
December 31, 2001 (CAA section 189(c)).
    Notwithstanding significant efforts by the Great Basin Unified Air 
Pollution Control District and the California Air Resources Board to 
work with the City of Los Angeles to reach a mutually acceptable 
solution, the State has failed to meet the February 8, 1997 deadline 
for the required SIP submission. EPA is therefore compelled to find 
that the State of California has failed to make the required SIP 
submission for the Owens Valley PM-10 nonattainment area.
    The CAA establishes specific consequences if EPA finds that a state 
has failed to meet certain requirements of the CAA. Of particular 
relevance here is CAA section 179(a)(1), the mandatory sanctions 
provision. Section 179(a) sets forth four findings that form the basis 
for application of a sanction. The first finding, that a State has 
failed to submit a plan required under the CAA, is the finding relevant 
to this rulemaking.
    If California has not made the required complete submittal within 
18 months of the effective date of today's

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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 the State has still not made a complete submission 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.<SUP>3</SUP> In addition, CAA section 110(c) provides that EPA 
must promulgate a federal implementation plan (FIP) no later than 2 
years after a finding under section 179(a).
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    \3\ In a 1994 rulemaking, EPA established the Agency's selection 
of the sequence of these two sanctions: the offset sanction under 
section 179(b)(2) shall apply at 18 months, followed 6 months later 
by the highway sanction under section 179(b)(1) of the Act. EPA does 
not choose to deviate from this presumptive sequence in this 
instance. For more details on the timing and implementation of the 
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR 
52.31, ``Selection of sequence of mandatory sanctions for findings 
made pursuant to section 179 of the Clean Air Act.''
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    The 18-month clock will stop and the sanctions will not take effect 
if, within 18 months after the date of the finding, EPA finds that the 
State has made a complete submittal of a plan addressing the serious 
area PM-10 requirements for Owens Valley. In addition, EPA will not 
promulgate a FIP if the State makes the required SIP submittal and EPA 
takes final action to approve the submittal within 2 years of EPA's 
findings (section 110(c)(1) of the Act). EPA encourages the responsible 
parties to continue working together on a solution which can cancel out 
the potential sanctions and FIP.

II. Final Action

A. Rule

    Today, EPA is making a finding of failure to submit for the Owens 
Valley PM-10 nonattainment area, due to failure of the State to submit 
a SIP revision addressing the serious area PM-10 requirements of the 
CAA.

B. Effective Date Under the Administrative Procedures Act

    EPA has issued this action as a rulemaking because the Agency has 
treated this type of action as rulemaking in the past. However, EPA 
believes that it would have the authority to issue this action in an 
informal adjudication, and is considering which administrative 
process--rulemaking or informal adjudication--is appropriate for future 
actions of this kind.
    Because EPA is issuing this action as a rulemaking, the 
Administrative Procedures Act (APA) applies.
    Today's action will be effective on August 20, 1997. Under the APA, 
5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days 
after the date of publication in the Federal Register if an agency has 
good cause to mandate an earlier effective date. Today's action 
concerns a SIP submission that is already overdue and the State has 
been aware of applicable provisions of the CAA relating to overdue 
SIPs. In addition, today's action simply starts a ``clock'' that will 
not result in sanctions for 18 months, and that the State may ``turn 
off'' through the submission of a complete SIP submittal. These reasons 
support an effective date prior to 30 days after the date of 
publication.

C. Notice-and-Comment Under the Administrative Procedures Act

    This notice is a final agency action, but is not subject to the 
notice-and-comment requirements of the APA, 5 U.S.C. 533(b). EPA 
believes that because of the limited time provided to make findings of 
failure to submit regarding SIP submissions, Congress did not intend 
such findings to be subject to notice-and-comment rulemaking. However, 
to the extent such findings are subject to notice-and-comment 
rulemaking, EPA invokes the good cause exception pursuant to the APA, 5 
U.S.C. 553(d)(3). Notice and comment are unnecessary because no EPA 
judgment is involved in making a nonsubstantive finding of failure to 
submit SIPs required by the CAA. Furthermore, providing notice and 
comment would be impracticable because of the limited time provided 
under the statute for making such determinations. Finally, notice and 
comment would be contrary to the public interest because it would 
divert Agency resources from the critical substantive review of 
submitted SIPs. See 58 FR 51270, 51272, note 17 (October 1, 1993); 59 
FR 39832, 39853 (August 4, 1994).

D. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this action 
from review under Executive Order 12866.

E. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
EPA must prepare a regulatory flexibility analysis assessing the impact 
of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small business, small not-for-profit enterprises and 
government entities with jurisdiction over populations of less than 
50,000.
    As discussed in section II.F. below, findings of failure to submit 
required SIP revisions do not by themselves create any new 
requirements. Therefore, I certify that today's action does not have a 
significant impact on small entities.

F. Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act'') signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    In addition, under the Unfunded Mandates Act, before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, EPA 
must have developed, under section 203, a small government agency plan.
    EPA has determined that today's action is not a Federal mandate. 
The CAA provision discussed in this notice requires states to submit 
SIPs. This notice merely provides a finding that California has not met 
that requirement. This notice does not, by itself, require any 
particular action by any State, local, or tribal government, or by the 
private sector.
    For the same reasons, EPA has determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments.

G. SBREFA Notice

    Under section 801(a)(1)(A) of the APA as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a 
report containing this final rule and other required information to the 
U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the General Accounting Office prior to publication of the 
rule in today's Federal Register. This rule is not a ``major rule'' as 
defined by section 804(2) of the APA as amended.
    As noted above, EPA is issuing this action as rulemaking. There is 
a question as to whether this action is a rule of ``particular 
applicability,'' under section 804(3)(A) of the APA as amended by 
SBREFA--and thus exempt from the Congressional submission 
requirements--because this rule applies only to a named state. In this 
case, EPA has decided to submit this rule to Congress, but will 
continue to consider

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the issue of the scope of the exemption for rules of ``particular 
applicability.''

H. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.).

J. Judicial Review

    Under CAA section 307(b)(1), a petition to review today's action 
may be filed in the Court of Appeals for the appropriate circuit by 
October 27, 1997. 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) of the Act.

    Dated: August 20, 1997.
Felicia Marcus,
Regional Administrator.
[FR Doc. 97-22948 Filed 8-27-97; 8:45 am]
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