Designations of Areas for Air Quality Planning Purposes; State of Nevada; Technical Correction

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is clarifying and correcting the tables in the Code of Federal Regulations that identify the Agency's designations and classifications of nonattainment, attainment, and unclassifiable areas for criteria pollutants within the State of Nevada. Specifically, EPA is clarifying the tables for Nevada to indicate the specific geographic areas that comprise the attainment and unclassifiable areas in the State and to reflect changes in the Agency's regulations implementing the prevention of significant deterioration program. EPA is also correcting the table that shows the classification of the Las Vegas Valley nonattainment area for the National Ambient Air Quality Standard for carbon monoxide.

EFFECTIVE DATE:

This action is effective on March 19, 2002.

ADDRESSES:

Copies of documents relevant to this action are available for public inspection during normal business hours at the Permits Office of the Air Division, Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, California 94105-3901.

FOR FURTHER INFORMATION CONTACT:

David Albright, Permits Office (AIR-3), U.S. Environmental Protection Agency, Region 9, (415) 972-3971 or albright.david@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we”, “us”, or “our” are used, we mean the Environmental Protection Agency (EPA).

This section contains additional information about our final rulemaking, organized as follows:

I. Clarification of the TSP, SO₂, and NO₂ tables.

II. Clarification of the PM₁₀ table.

III. Correction of the CO table.

IV. EPA's final action.

V. Effective date of EPA's final action.

I. Clarification of the TSP, SO₂, and NO₂ Tables

EPA's designations of nonattainment, attainment, and unclassifiable areas pursuant to section 107(d) of the Clean Air Act are contained in part 81 of title 40 of the code of federal regulations (40 CFR part 81). Our designations for such areas in the State of Nevada are located in 40 CFR 81.329 and are presented separately for each of the criteria pollutants. All of the applicable tables in 40 CFR 81.329 contain the term “rest of state” or “entire state” to describe the attainment or unclassifiable areas within Nevada. We are aware that the term “rest of state” or “entire state” in these tables at 40 CFR 81.329 could be misinterpreted as designating a single attainment or unclassifiable area. However, based on the regulatory history summarized below, dating back to our initial area designations in 1978, the terms “rest of state” and “entire state” in the applicable section 81.329 tables actually refer to more than 250 individual section 107(d) attainment or unclassifiable areas.

In 1977, pursuant to section 107(d) of the Clean Air Act Amendments of 1977, the State of Nevada submitted their recommendations to EPA for nonattainment, attainment and unclassifiable areas for TSP (total suspended particulate), SO₂ (sulfur dioxide), and NO₂ (nitrogen dioxide) within the State. Dated November 25, 1977, the State's letter containing the recommendations cites hydrographic areas (delineated by the Nevada Division of Water Resources) as the geographic unit for such areas in Nevada, specifically noting that, “the name and definition of Nevada's water basins are now being utilized as the reference unit for air basins.” The letter with the State's 1977 submission indicated that there were 253 such air basins in the State. A careful review of the air basins listed in the documentation provided with the 1977 letter indicates that the State had identified 254 such areas. These areas are referred to herein as “section 107(d) areas.”

In 1978, we designated section 107(d) areas based on the State's recommendations (contained in the November 1977 letter described above) with certain modifications (that are not relevant for the purposes of this action) and codified these areas in 40 CFR part 81.329. See 43 FR 8962, 9012 (March 3, 1978). In our 1978 rule, we noted: “In some instances, the descriptions of the designated areas submitted by the States were so lengthy as to prohibit their publication in the limited space available in the tables presented below. Exact descriptions of all areas designated are available at the appropriate Regional Offices or the State in question.” See 43 FR 8962, 8964 (March 3, 1978). Nevada was one of those States which submitted a lengthy description of section 107(d) areas. In the tables published in the Federal Register and codified in 40 CFR 81.329, the short-hand notation “rest of state” and “entire state” were used to refer to attainment and unclassifiable areas in the State of Nevada, in lieu of the lengthy description of 254 hydrographic areas submitted by the State. Thus, our 1978 rule, despite the use of the short-hand notation in the CFR, approved the hydrographic areas as the attainment or unclassifiable areas (for TSP, SO₂, and NO₂) in the State of Nevada.

Since our 1978 rule, we have twice taken action under section 107(d) of the Clean Air Act to increase the number of designated section 107(d) areas in the State of Nevada. In 1980, we approved a division of hydrographic area 101 (Carson Desert) into two section 107(d) areas for TSP: 101 (a smaller area referred to as Carson Desert); and 101A (referred to as Packard Valley). See 45 FR 46807 (July 11, 1980). In 1982, we approved a division of hydrographic area 179 (Steptoe Valley) into three areas for SO₂: central; northern; and southern. See 47 FR 20772 (May 14, 1982). Upon the effective date of our 1982 rule (June 14, 1982), there have been a total of 256 section 107(d) areas in the State of Nevada for SO₂, 255 section 107(d) areas for TSP, and 254 section 107(d) areas for NO₂.

Therefore, in this action, we are clarifying 40 CFR 81.329 to indicate clearly that the term “rest of state” or “entire state” in the Nevada tables for TSP, SO₂, and NO₂ refers to the hydrographic areas designated by EPA in 1978, revised for TSP in 1980, and then revised for SO₂ in 1982.

II. Clarification of the PM₁₀ Table

In 40 CFR 81.329, there are two tables that list the nonattainment, attainment, and unclassifiable areas in the State of Nevada for particulate matter: one relates to TSP and the other relates to PM₁₀. Today's action clarifies the PM₁₀ table to reflect the relationship between that table and the TSP area designations table for the purposes of implementing the PSD program.

In 1991, pursuant to the Clean Air Act Amendments of 1990, the State of Nevada submitted their recommendations concerning nonattainment areas for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM₁₀) (PM₁₀ replaced TSP as the criteria pollutant for particulate matter.) Dated March 15, 1991, the State's letter containing their recommendations did not refer to PM₁₀ attainment or unclassifiable areas, instead focussing solely on the identification of nonattainment areas. Later in 1991, based on the State's recommendations, we revised the nonattainment areas under section 107(d) for PM₁₀. See 56 FR 56694 (November 6, 1991). Our 1991 rule did not identify attainment or unclassifiable areas for PM₁₀.

In 1992, we recognized that we had neglected to identify attainment or unclassifiable areas for PM₁₀ in our 1991 rule and thus added the designation “unclassifiable” for the areas not otherwise designated nonattainment for PM₁₀, using the term “rest of state.” See 57 FR 56762 (November 30, 1992). In this context, the use of the term “rest of state” in the PM₁₀ table in section 81.329 was only identifying the portion of the State that EPA had not designated nonattainment for PM₁₀.

Unfortunately, the use of the term “rest of state” in the PM₁₀ table could lead members of the public to conclude that there is a single unclassifiable PM₁₀ area in the State for the purposes of the prevention of significant deterioration (PSD) program. However, based on the regulatory history described below, for PSD baseline purposes, the term “rest of state” in the PM₁₀ table for the State of Nevada refers to hydrographic areas, and in this action, we are clarifying the PM₁₀ table accordingly to avoid further confusion.

In 1980, EPA revised the regulations implementing the PSD program to define “baseline areas” in terms of the attainment or unclassifiable areas listed in 40 CFR part 81, i.e., the section 107(d) areas. 45 FR 52676 (August 7, 1980). In 1987, we revised the National Ambient Air Quality Standard (NAAQS) for particulate matter (52 FR 24634), replacing TSP as the indicator for particulate matter with PM₁₀, and in 1993, we revised our PSD regulations to address the revision in the NAAQS for particulate matter from TSP to PM₁₀. Among other changes in our 1993 rule related to PSD, we decided to retain the TSP baseline areas as part of the program for implementing the newly-promulgated PM₁₀ increments. See 58 FR 31622, 31630 (June 3, 1993). The TSP baseline areas had been defined as the section 107(d) areas, and in the State of Nevada, as discussed in the previous section, the section 107(d) areas for TSP are comprised of hydrographic areas. Thus, the effect of our 1993 rule was to retain the hydrographic areas as PM₁₀ baseline areas for the purposes of implementing the PM₁₀ increments in the State of Nevada. Today's action clarifies the PM₁₀ table in 40 CFR 81.329 to indicate, in accordance with EPA's 1993 rule, that for PSD baseline area purposes, the term “rest of state” refers to the hydrographic areas that had been approved by EPA as TSP baseline areas in the State of Nevada.

III. Correction of CO Table

On October 2, 1997, we published a final rule that found that the Las Vegas Valley carbon monoxide (CO) nonattainment area did not attain the NAAQS for CO by the applicable attainment date. Our final rule reclassified the area from “moderate” to “serious” nonattainment under section 186(b)(2) of the Act. See 62 FR 51604 (October 2, 1997). However, we inadvertently failed to codify this final action in the CO table for Nevada in 40 CFR 81.329. The CO table in 40 CFR 81.329 currently lists the prior classification (“Moderate > 12.7 ppm”) for Las Vegas Valley Hydrographic Area 212. In this action, we are therefore correcting the CO table so that the classification of Las Vegas Valley Hydrographic Area 212 is correctly identified as “serious,” effective November 3, 1997, reflecting our final action published on October 2, 1997 in the Federal Register.

IV. EPA's Final Action

In this action, we are clarifying and correcting the tables in 40 CFR 81.329 that identify nonattainment, attainment, and unclassifiable areas designated by EPA under the Clean Air Act within the State of Nevada. Specifically, we are clarifying the TSP, SO₂, and NO₂ tables to identify exactly which geographic areas comprise the attainment or unclassifiable areas in the State of Nevada consistent with our final rules published in the Federal Register on March 3, 1978 (43 FR 8962); July 11, 1980 (45 FR 46807); and May 14, 1982 (47 FR 20772). We are also clarifying the PM₁₀ table consistent with our final rule related to PSD published in the Federal Register on June 3, 1993 (58 FR 31622). Lastly, we are correcting the table showing the classification of the Las Vegas Valley nonattainment area for the NAAQS for CO consistent with our final rule published in the Federal Register on October 2, 1997 (62 FR 51604). In so doing, we are not revising any area designations or classifications in the State of Nevada nor are we changing the underlying method used by the State of Nevada in implementing the PSD program in that State. (The State has been implementing the PSD program on the basis of hydrographic areas consistent with our designations of such areas in 1978.) Rather, we are aligning the contents of the tables in 40 CFR 81.329 with the effective results of prior EPA rules that did establish or revise the area designations or classifications.

V. Effective Date of EPA's Final Action

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA is clarifying and correcting the section of the CFR that lists designations and classifications under the Clean Air Act to reflect prior EPA rules rather than promulgating new or revised designations or classifications. These prior rules had been subject to notice and comment. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). Also, because the contents of the existing tables of section 107(d) areas in 40 CFR 81.329 have lead to confusion, particularly in the context of implementing the PSD program in Nevada, we are invoking the good cause exception to the 30-day notice requirement of the Administrative Procedure Act and making today's final action immediately effective. See 5 U.S.C. 553(d)(3).

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (see section V., above), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This 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 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction does not contain technical standards; thus, 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). 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 rule 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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of March 19, 2002. 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. 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 May 20, 2002. 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 Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National Parks
• Wilderness areas

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.

Subpart C—Section 107 Attainment Status Designations

2. Section 81.329 is amended by:

a. Revising the tables for “Nevada—TSP” and “Nevada—SO₂”.

b. In the table for “Nevada—Carbon Monoxide” by revising the entry for Las Vegas Area.

c. Revising the tables for “Nevada—PM-10” and “Nevada—NO₂”.

The revisions read as follows: