Air quality implementation plans; approval and promulgation; various States: Nevada,

[Federal Register: December 11, 1998 (Volume 63, Number 238)]

[Proposed Rules]

[Page 68415-68418]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr11de98-11]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NV-034-0113; FRL-6200-7]

Approval and Promulgation of Implementation Plans; Nevada State Implementation Plan Revision, Clark County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve revisions to the Nevada State Implementation Plan (SIP). This action specifically includes proposed approval of revisions to Clark County Health District's wintertime oxygenated fuels program. The intended effect of this SIP revision is principally to regulate CO emissions in accordance with the requirements of the Clean Air Act, as amended in 1990 (CAA or the Act). EPA's final action on this proposal will incorporate it into the federally approved SIP for the Clark County nonattainment area. EPA has evaluated this revision and is proposing to approve it under provisions of the CAA regarding EPA action on SIP submittals, SIPs for national primary and secondary ambient air quality standards and plan requirements for nonattainment areas.

DATES: Comments must be received on or before January 11, 1999.

ADDRESSES: Comments may be mailed to: Air Planning Office [AIR-2], Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Copies of the SIP revision and EPA's evaluation report are available for public inspection at EPA's Region 9 office during normal business hours. Copies of the submitted SIP revision are also available for inspection at the following locations:

Nevada Division of Environmental Protection, Bureau of Air Quality, 123 W. Nye Lane, Carson City, NV Clark County Health District, PO Box 3902, 625 Shadow Lane, Las Vegas, NV

FOR FURTHER INFORMATION CONTACT: Roxanne Johnson, Air Planning Office (AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 744-1225.

SUPPLEMENTARY INFORMATION:

1. Applicability

   The revision being proposed for approval into the Nevada SIP includes:

   [[Page 68416]]

   Clark County District Board of Health, (CCDBH), Air Pollution Control (APC) Section 53, Oxygenated Gasoline Program (as amended and approved on September 25, 1997). This SIP revision was submitted by the Nevada Division of Environmental Protection to EPA on August 7, 1998.

2. Background

   Section 211(m) of the CAA requires states with CO nonattainment areas with design values of 9.5 parts per million (ppm) or more to submit revisions to their SIPs for those areas, and implement an oxygenated gasoline program, requiring gasoline to meet a minimum oxygen content of 2.7% by weight.

   The Clark County nonattainment area design value was based on data for the required two year period of 1988 and 1989. The design value was greater than 12.7 ppm (i.e., 14.4 ppm using 1988 data); therefore the area was classified as moderate CO nonattainment under section 186 of the Act. Because the nonattainment area did not attain the CO standard by the required attainment date of December 31, 1996 ‹SUP›1‹/SUP›, the nonattainment area of Clark County was reclassified to serious for CO. As a serious area, Clark County now has until December 31, 2000 to meet the national CO standard.

   \1\ Clark County was granted a one-year extension of the December 31, 1995 attainment date. 61 FR 575407 (November 6, 1996).

   CO remains the greatest air quality challenge in Clark County, especially in the Las Vegas Valley. While a number of programs have helped reduce CO levels each year since 1976, CO levels are directly affected by the ever-increasing number of car miles traveled each year. Nearly all CO in the Valley comes from gasoline powered vehicles. Especially challenging are winter months which bring weather inversions which trap cold air under warm air, preventing the CO emitted from motor vehicles from escaping the Valley. This phenomenon causes several nights of high CO levels each winter. Overall, the District continues to have a good experience with implementing its oxygenated fuels program as a cost effective method of reducing CO emissions in the Valley.

   The oxygenated gasoline program was initially adopted on November 17, 1988. The initial program included: a 2.5% oxygen level for the first wintertime season, a 2.6% oxygen level for the next wintertime season, and a choice of methyl tertiary butyl ether (MTBE) or ethanol as oxygenates. The regulation was amended in June 1990 to increase the time period of each succeeding wintertime season and again in July 1991 to increase the oxygen level from 2.6% to 2.7% oxygen by weight.

   The District's new submittal requires wintertime oxygenated gasoline from October 1 through March 31. The minimum oxygen level is 3.5% by weight.

   The following is EPA's evaluation and proposed action for this rule.

3. EPA Evaluation and Proposed Action

   In determining the approvability of this SIP revision, EPA must evaluate the revision for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and Part D of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans).

   (a) 3.5% oxygenated fuels program. The Clark County area of applicability is the hydrographic basins containing the Las Vegas Valley, the Eldorado Valley, the Ivanpah Valley, the Boulder City limits, and any area within 3 miles of any such hydrographic basins and which is within Clark County, Nevada.

   In 1995, the Board of Health adopted a resolution committing to the adoption in 1998 of a regulation that would mandate 3.5% oxygen commencing October 2001. In March 1997, the Clark County Commission adopted a resolution requesting that the Board of Health adopt such a program for implementation for the fall of 1997. The program was adopted by the Board on September 25, 1997 and requires that the minimum oxygen content of wintertime gasoline shall be 3.5% oxygen by weight, starting October 1, 1997.

   The District calculated the CO emission reduction benefit for a 3.5% oxygen program in the Valley, compared to no oxygen. The calculation showed approximately a 38% emission benefit. The District's oxygenated gasoline program remains the more cost effective CO control measure when compared to its smog check/repair, traffic flow improvements, winter RVP limit, transit pass program, and the federal motor vehicle emission control program.

   The Clark County oxygenated fuels SIP revision included all the EPA required information (under appendix V, 40 CFR part 51) including: A letter from the designated state official requesting that the revision be incorporated into the SIP; evidence that the District has legal authority to adopt, implement and enforce the adopted revision; evidence of the public notice listing the rule or plan revision; evidence that a public hearing was held; and copies of public comments generated during the public comment period.

   The SIP revision also included the required technical support information which included: Identification of regulated pollutants affected by the revision; and identification of the locations of the affected major areas.

   (b) Analysis of Las Vegas oxygenated gasoline preemption issues.

   In response to concerns raised by the Western States Petroleum Association during the District's rule adoption process, the District requested EPA's opinion regarding whether the 3.5% oxygen requirement is preempted under the CAA. EPA's analysis was provided to the District and WSPA by letter dated May 26, 1998, from Margo T. Oge, Director, U.S. EPA Office of Mobile Sources, and is summarized below. The full analysis is contained in the docket for this action.

   EPA does not believe that Clark County's requirement is preempted under the Clean Air Act. State requirements like Clark County's are governed by the following provisions in the Act: (1) Section 211(m), which requires certain states with areas exceeding the National Ambient Air Quality Standard for carbon monoxide (CO) to establish wintertime oxygenated gasoline programs, (2) section 211(c)(4), which prohibits certain state fuel regulations adopted for purposes of control of pollution from motor vehicles; and (3) section 116 and other provisions in Title I of the CAA, which give the states primary responsibility for meeting the NAAQS and reserve authority to the states to establish more stringent air pollution control limitations than those established by EPA. State provisions can also potentially be preempted based on conflict with the CAA and federal fuel specifications of the oxygen content of gasoline.

   Clark County's 3.5% fuel oxygen content requirement is neither barred by section 211(m) of the CAA, nor preempted by the CAA, either explicitly under section 211(c)(4)(A) or implicitly based on the judicial doctrines of conflict preemption or field preemption.

   Section 211(m) requires that certain states adopt a requirement that gasoline be blended to contain not less than 2.7 % oxygen by weight. EPA believes that a state may satisfy this requirement by requiring gasoline to contain 2.7% oxygen or by setting a content requirement higher than 2.7%. This is consistent with the text of the section 211(m), the structure of the Act, and the legislative history of this provision.

   [[Page 68417]]

   Clark County's requirement that gasoline contain 3.5% oxygen by weight is not prohibited by section 211(m)(2).

   Clark County's 3.5% oxygen requirement also is not preempted by section 211(c)(4)(A) of the Act. Congress required states to adopt the elements of an oxygenated gasoline program specified in section 211(m) and to submit them as a SIP revision, which would be approved by EPA. Congress' specification of the necessary elements of an approvable SIP revision in section 211(m) indicates Congress' intent that this provision take precedence over the more general provisions of section 211(c)(4)(A) and that EPA approve a SIP revision that includes the program elements specified under section 211(m) without a further showing of necessity under section 211(c)(4)(C). A state requirement of greater than 2.7% oxygen content is within the range of oxygen content requirements that Congress authorized and envisioned under section 211(m) and is not subject to section 211(c)(4).

   Clark County's requirement of 3.5% oxygen content is also not preempted by the Clean Air Act based on conflict. Conflict occurs when it is impossible for a private party to comply with both state and federal requirements, or where state law is an obstacle to the accomplishment of Congressional purpose. Such conflict does not exist in this instance. It is practically and legally possible to blend and supply gasoline that meets the federal conventional gasoline requirements and has an oxygen content of 3.5%. Clark County's program is not an obstacle to accomplishing Congressional purpose; rather it is consistent with the requirements of sections 211(m) and 211(C)(4).

   Clark County's requirement of 3.5% oxygen content is also not preempted by the Clean Air Act based on field preemption because federal regulation in this area is not so pervasive as to preclude supplementation by the states, nor is the federal interest in the field sufficiently dominant to preempt state action.

   In summary, EPA has evaluated the submitted oxygenated gasoline program revision and has determined that it is consistent with the CAA, EPA regulations, and EPA policy. Therefore, Clark County Health District, Air Pollution Control (APC) Section 53, Oxygenated Gasoline Program is being proposed for approval under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and Part D.

   Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

4. Administrative Requirements

   1. 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.

   2. Executive Order 12875

      Under Executive Order 12875, Enhancing the Intergovernmental Partnership, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.'' Today's rule does not create a mandate on State, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of E.O. 12875 do not apply to this rule.

   3. Executive Order 13045

      Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be ``economically significant'' as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to E.O. 13045 because it is does not involve decisions intended to mitigate environmental health or safety risks.

   4. Executive Order 13084

      Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

   5. Regulatory Flexibility Act

      The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the

      [[Page 68418]]

      Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

   6. Unfunded Mandates

      Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under Section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

      EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

      List of Subjects in 40 CFR Part 52

      Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Reporting and recordkeeping requirements.

      Authority: 42 U.S.C. 7401-7671q.

      Dated: December 1, 1998. Laura Yoshii, Acting Regional Administrator, Region IX.

      [FR Doc. 98-32891Filed12-10-98; 8:45 am]

      BILLING CODE 6560-50-U