[Federal Register Volume 66, Number 5 (Monday, January 8, 2001)]
[Rules and Regulations]
[Pages 1268-1270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-467]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[NV 032-FON; FRL-6927-7]


Clean Air Act Reclassification; Nevada--Reno Planning Area; 
Particulate Matter of 10 Microns or Less (PM-10)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to find that the Reno (Washoe 
County) Planning Area (RPA) has not attained the annual and 24-hour PM-
10 national ambient air quality standards (NAAQS) by the Clean Air Act 
(CAA) mandated attainment date for moderate nonattainment areas, 
December 31, 1994. This finding is based on monitored air quality data 
for the PM-10 NAAQS during the years 1992-1994. As a result of this 
failure to attain, the RPA will be reclassified under CAA section 
188(b)(2) by operation of law as a serious nonattainment area on the 
effective date of this rule. The State of Nevada will be required to 
submit a state implementation plan (SIP) revision addressing the CAA 
provisions for serious areas within 18 months of the reclassification.

EFFECTIVE DATE: This action is effective on February 7, 2001.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region 9 office during normal business hours. U.S. 
Environmental Protection Agency, Region 9, Air Division, Planning 
Office (AIR-2), 75 Hawthorne Street, San Francisco, California 94105.

Electronic Availability

    This document is also available as an electronic file on EPA's 
Region 9 Web Page at http://www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: For monitoring data questions contact 
Manny Aquitania, U.S. EPA, Region 9, Air Division, Technical Support 
Office (AIR-7), 75 Hawthorne Street, San Francisco, California 94105, 
(415) 744-1299, <a href="/cdn-cgi/l/email-protection#a2c3d3d7cbd6c3cccbc38ccfc3ccccdbe2c7d2c38cc5cdd4"><span class="__cf_email__" data-cfemail="462737332f3227282f27682b2728283f0623362768212930">[email protected]</span></a>. For other questions contact 
Doris Lo, U.S. Environmental Protection Agency, Region 9, Air Division, 
Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, California 
94105, (415) 744-1287, <a href="/cdn-cgi/l/email-protection#94f8fbbaf0fbe6fde7d4f1e4f5baf3fbe2"><span class="__cf_email__" data-cfemail="a6cac988c2c9d4cfd5e6c3d6c788c1c9d0">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 22, 2000, EPA proposed to find that the RPA, a moderate 
PM-10 nonattainment area (40 CFR 81.329) did not attain either the 24-
hour or annual PM-10 NAAQS by the required attainment date of December 
31, 1994 and, as a result, would be reclassified as a serious area. 65 
FR 70326. The proposed finding and resulting reclassification is based 
on air quality data which revealed violations of the PM-10 NAAQS during 
1992-1994. For more background information see the November 22, 2000 
proposal at 65 FR 70326. Today's rulemaking provides EPA's responses to 
public comments and finalizes EPA's proposed action.

II. Public Comments and EPA Responses

    In response to the November 22, 2000 proposal, EPA received one 
comment letter from the Washoe County District Health Department Air 
Quality Management Division (the District). In general, the District 
believes that the air quality in the RPA has improved over the past 
decade and that a reclassification to serious is not indicative of the 
air quality improvement for the area; however, the District also 
recognizes that EPA proposed to reclassify the RPA pursuant to the 
Clean Air Act's statutory requirements. Below are EPA's responses to 
the District's comments.
    Comment 1: The District is concerned that after years of improving 
PM-10 ambient levels and public outreach efforts promoting their 
successes, the proposed action will bring into question the credibility 
of both the District and EPA. Moreover, the District believes that the 
reclassification of the area to serious nonattainment will require 
considerable staff resources to be spent on plan preparation and 
documentation requirements.
    In addition, the District does not believe that the serious 
classification correctly defines the current PM-10 status of the RPA 
and that maintaining the moderate classification, although it may not 
be an option provided by the Clean Air Act, would more correctly 
characterize the area.
    Response 1: While the PM-10 ambient levels may have improved over 
the years, the RPA was violating the PM-10 standard on its CAA 
attainment deadline of December 31, 1994 and is currently still in 
violation of the PM-10 standard. The basis for this conclusion and the 
data supporting it are discussed in detail in the proposed rule. See 65 
FR at 70327.
    EPA has the responsibility under CAA sections 179(c) and 188(b)(2) 
to make findings of failure to attain for areas which have not attained 
the NAAQS by the statutory deadline. Under section 188(b)(2)(A), a 
moderate PM-10 nonattainment area is reclassified as serious by 
operation of law if the Administrator finds that the area has failed to 
attain the NAAQS by the statutory attainment date.
    EPA supports the District's efforts to improve the air quality in 
the Reno area and understands that the District has already spent 
considerable resources in developing measures that will satisfy the 
requirements in CAA section 189(b) for a serious PM-10 area. EPA 
understands that the plan preparation and document requirements can be 
resource-intensive and difficult, but EPA is encouraged by the 
District's ongoing efforts and believes that the District's past 
efforts (e.g., residential wood burning and construction dust control 
measures) will also help address the serious area planning 
requirements. These ongoing and past efforts should help the serious 
area plan preparation and documentation requirements proceed with fewer 
resources and less difficulty.
    Comment 2: The District stated that the lawsuit and accompanying 
arguments levied by the Sierra Club present the perception that the air 
quality in the RPA has continually been at a level endangering public 
health. The District believes this is a

[[Page 1269]]

misconception and stresses that they have adopted and are enforcing 
strict regulations pertaining to residential wood burning and 
construction dust control, historically two of the largest PM-10 
contributors. The District reiterates that the ambient air quality in 
Washoe County has improved dramatically in the past ten years.
    Response 2: EPA agrees that the air quality in the Reno area has 
improved over the past 10 years. Unfortunately, the area is still in 
violation of the NAAQS for PM-10 due to a violation recorded in 1999. 
See ``Table of Sites Violating PM-10 NAAQS in Reno Planning Area, 1997-
1999'' in the docket for the proposed rule. As stated in the response 
to comment 1, EPA supports the District in its efforts to improve the 
air quality in the Reno area and understands that the District has 
already spent considerable resources in developing measures that will 
satisfy the CAA requirements for a serious PM-10 area.
    Comment 3: The District states that the RPA attained the annual 
standard for PM-10 in 1995.
    Response 3: As discussed in the proposed rule at 65 FR 70327, 
attainment for the PM-10 NAAQS is achieved when there are 3 consecutive 
years of clean data. In 1995, the highest annual arithmetic mean for 
the RPA was 47 <greek-m>g/m\3\ found at the Reno-Galetti Way moniter 
(below the annual PM-10 NAAQS of 50 <greek-m>g/m\3\). While the RPA did 
not violate the annual PM-10 NAAQS in 1995 (i.e., had clean data), the 
RPA still had not attained the annual standard for PM-10 in 1995 due to 
the annual PM-10 levels in 1993 and 1994. The clean data pointed out by 
the District are encouraging to EPA, however, the violations recorded 
in 1999 make an attainment finding impossible at this time.
    Comment 4: The District states that the Truckee Meadows Basin did 
not experience any 24-hour PM-10 violations for 5 years (1994 through 
1998). The District states that the RPA measured a violation of the 24-
hour standard one day in 1993 and one day six years later in 1999. The 
District states that the measured 24-hour violations were based on the 
national every six-day monitoring schedule. For both 1993 and 1999, the 
District also collected continuous PM-10 data that indicate the RPA did 
not violate the 24-hour standard during those years. The District 
claims that if those continuous monitoring instruments were either 
certified as a federal reference method or if the data were subjected 
to federal quality assurance procedures by the District, the Truckee 
Meadows Basin would not, by federal definition, currently be in 
violation of the standard.
    Response 4: In its proposal, EPA explains how the number of 
violations are determined from monitored exceedance information. In 
general, for monitors that collect air quality samples less than every 
day, a recorded exceedance will in effect be prorated, or adjusted, so 
that the number of expected exceedances for that year will account for 
the days not sampled. 65 FR 70327. Once this adjustment is made, the 
number of violations in 1993 and 1999 would be greater than one in each 
of those years.
    The operating agency can avoid the adjustment process for 
incomplete data by initiating and maintaining everyday sampling for 
four (4) calendar quarters. 40 CFR part 50, appendix K. However, the 
continuous PM-10 data collected by the District using a Federal 
Equivalent Monitor (FEM) during the 1993 and 1999 violation years 
cannot be considered because quality assurance procedures prescribed in 
40 CFR part 58, Appendix A and ``Quality Assurance Handbook for Air 
Pollution Measurement Systems,'' EPA, August 1998 were not followed.
    Comment 5: The District states that the PM10 violation days in 1993 
and 1999 were characterized by stagnant air conditions with low carbon 
monoxide levels. Thus, the District has determined that fugitive dust 
and residential wood combustion were not the cause, but that re-
entrained road dust from wintertime sanding/de-icing operations was the 
cause of the 24-hour PM-10 violations during 1993 and 1999. The 
District recognizes the important effect of re-entrained road dust on 
the area's air quality and is committed to enhancing its efforts to 
prevent and mitigate this source. The District believes that Washoe 
County is currently meeting the NAAQS for PM-10 and, with the 
additional work it plans, the area can maintain attainment for PM-10.
    Response 5: EPA believes the District has made a reasonable 
assessment of the cause of the PM-10 violations in 1993 and 1999 and 
the Agency expects to see measures to address this issue in its serious 
area PM-10 plan for the RPA. As stated previously, based on air quality 
data, EPA does not agree that the RPA is currently meeting the NAAQS 
for PM-10; however, EPA believes that the District has a good 
understanding of the controls needed to attain and maintain the PM-10 
NAAQS.

III. SIP Requirements for Serious Areas

    PM-10 nonattainment areas reclassified as serious under section 
188(b)(2) of the CAA are required to submit, within 18 months of the 
area's reclassification, SIP revisions providing for the implementation 
of best available control measures (BACM) no later than four years from 
the date of reclassification. The SIP also must contain, among other 
things, a demonstration that the implementation of BACM will provide 
for attainment of the PM-10 NAAQS no later than December 31, 2001. CAA 
sections 189(b)(1)(A) and 188(e) authorize EPA to grant an extension of 
that deadline if certain conditions are met. EPA has provided specific 
guidance on developing serious area PM-10 SIP revisions in an addendum 
to the General Preamble to title I of the Clean Air Act. See 59 FR 
41998 (August 16, 1994).

IV. Summary of Final Action

    As stated above, EPA is finalizing its proposed action to find that 
the RPA failed to attain the PM-10 NAAQS by the December 31, 1994 CAA 
deadline for moderate areas and, as a result, the RPA will be 
reclassified as a serious PM-10 nonattainment area on the effective 
date of this final rule.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.
    Under section 188(b)(2) of the CAA, findings of failure to attain 
are based solely upon air quality considerations and the subsequent 
nonattainment area reclassification must occur by operation of law in 
light of those air quality conditions. These actions do not, in-and-of 
themselves, impose any new requirements on any sectors of the economy. 
In addition, because the statutory requirements are clearly defined 
with respect to the differently classified areas, and because those 
requirements are automatically triggered by classifications that, in 
turn, are triggered by air quality values, findings of failure to 
attain and reclassifications cannot be said to impose a materially 
adverse impact on State, local, or tribal governments or communities.
    Accordingly, the Administrator certifies that this action will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    Similarly, because the finding of failure to attain is a factual 
determination based on air quality considerations and the resulting 
reclassification must occur by operation of law and, do not impose any 
federal

[[Page 1270]]

intergovermental mandate, these actions do not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4). For the same reason, this action also does not significantly or 
uniquely affect the communities of Indian tribal governments, as 
specified by Executive Order 13084 (63 FR 27655, May 10, 1998). Also 
for the same reasons, this finding of failure to attain and resulting 
reclassification 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 (64 
FR 43255, August 10, 1999). This action is also not subject to 
Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not 
economically significant. Finally, for the same reason that this 
finding of failure to attain is a factual determination based on air 
quality considerations and the resulting reclassification must occur by 
operation of law, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this finding of failure to attain, EPA 
has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the executive order. This finding 
of failure to attain does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 March 9, 2001. 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 Subject in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter.

    Dated: December 22, 2000.
John Wise,
Acting Regional Administrator, Region IX.

    Part 81, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

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

    2. In Sec. 81.329, the table for Nevada-PM-10 Nonattainment Areas 
is amended by revising the entry for ``Washoe County'' to read as 
follows:


Sec. 81.329  Nevada.

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                                                  Nevada--PM-10
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                                               Designation                            Classification
        Designated area        ---------------------------------------------------------------------------------
                                    Date                 Type                Date                 Type
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 Washoe County
 Reno Planning Area...........     11/15/90  Nonattainment.............       2/7/01  Serious
   Hydrographic area 87.......
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[FR Doc. 01-467 Filed 1-5-01; 8:45 am]
BILLING CODE 6560-50-U


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