65FR37324 Approval and Promulgation of Implementation Plans; Nevada--Las Vegas Valley Nonattainment Area; PM-10
robop...@us.govnews.org
Posting-number: Volume 65, Issue 115, Page 37324
[Federal Register: June 14, 2000 (Volume 65, Number 115)]
[Proposed Rules]
[Page 37324-37331]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn00-33]
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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:
biland...@epa.gov
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.
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\14\ 1997 Serious Plan, pp. 35-37.
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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\
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\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.
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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.
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\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.''
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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.
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\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).
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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]
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