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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Parts 52 and 81
NV ID: [NV 021-0049a; FRL-7167-3]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
DOCUMENT ACTION: Direct final rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Nevada
DATES: This direct final rule is effective June 11, 2002, without further notice, unless we receive adverse comments by May 13, 2002. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this rule will not take effect.
DOCUMENT SUMMARY: EPA is approving the maintenance plan for the Steptoe Valley
Central area in Nevada and granting the request submitted by the State
to redesignate this area from nonattainment to attainment for the
National Ambient Air Quality Standards (NAAQS) for sulfur dioxide
(SO
SUMMARY: Nevada,
SUPPLEMENTAL INFORMATION
Throughout this document, ``we,'' ``us,'' and ``our'' refer to EPA.Table of Contents
I. Summary of Action
II. Introduction
A. What National Ambient Air Quality Standards are Considered in Today's Rulemaking?
B. What Is a State Implementation Plan?
C. What Is the Background for this Action?
D. What Are the Applicable CAA Provisions for SO
E. What Are the Applicable Provisions for SO
III. Review of the Nevada State submittals Addressing these Provisions?
A. Is the Maintenance Plan Approvable?
B. Has the State Met the Remaining Maintenance Plan Provisions?
C. Has the State Met the Redesignation Provisions of CAA Section 107(d)(3)(E)?
IV. Final Action
V. Administrative Requirements
I. Summary of Action
We are approving the maintenance plan for the Steptoe Valley
Central SO
\1\ For the definition of the Steptoe ValleyCentral
nonattainment area, see 40 CFR 81.329. The Northern and Southern
areas of Steptoe Valley hydrographic area 179 are not nonattainment
for the SO2 NAAQS. These areas are designated as ``cannot be
classified.'' Steptoe Valley is a sparsely populated area in White Pine County in the northeastern portion of Nevada.
II. Introduction
A. What National Ambient Air Quality Standards Are Considered in Today's Rulemaking?
Sulfur dioxide is the pollutant that is the subject of this action.
The NAAQS are safety thresholds for certain ambient air pollutants set
to protect public health and welfare. SO
SO
[[Page 17940]]
additional impacts, including acidic deposition, damage to crops and
vegetation, and corrosion of natural and manmade materials.
There are both short and longterm primary NAAQS for
SO
\2\ The secondary SO
B. What Is a State Implementation Plan?
The Clean Air Act requires states to attain and maintain ambient air quality equal to or better than the NAAQS. The state's commitments for attaining and maintaining the NAAQS are outlined in the State Implementation Plan (or SIP) for that state. The SIP is a planning document that, when implemented, is designed to ensure the achievement of the NAAQS. Each state currently has a SIP in place, and the Act requires that SIP revisions be made periodically as necessary to provide continued compliance with the standards.
SIPs include, among other things, the following: (1) An inventory of emission sources; (2) statutes and regulations adopted by the state legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to meet the NAAQS; and (4) contingency measures to be undertaken if an area fails to attain the standard or make reasonable progress toward attainment by the required date.
The state must make the SIP available for public review and comment
through a public hearing, it must be adopted by the state, and
submitted to us by the Governor or his designee. We take federal action
on the SIP submittal thus rendering the rules and regulations federally
enforceable. The approved SIP serves as the state's commitment to take
actions that will reduce or eliminate air quality problems. Any
subsequent revisions to the SIP must go through the formal SIP revision process specified in the Act.
C. What Is the Background for This Action?
1. When Was the Nonattainment Area Established?
In 1906, a copper smelter was built in the town of McGill, Nevada
by the Nevada Copper Company. This company later became the Nevada
Mines Division of the Kennecott Minerals Company (Kennecott). The
smelter was the largest, and only significant source, of sulfur dioxide
(SO
On March 3, 1978, at 43 FR 8962, we designated Steptoe Valley as a
primary SO
Based on dispersion modeling prepared for the State, we proposed to
redesignate the northern and southern portions of the Steptoe Valley on
March 10, 1982 (47 FR 10243) and published the final redesignation on
May 14, 1982 (47 FR 20773). This process formally changed the southern
and northern areas to ``cannot be classified'' or attainment for SO
On the date of enactment of the 1990 Clean Air Act Amendments,
SO
2. How Has the SIP Addressed CAA Provisions?
In 1975, we promulgated controls for the Kennecott Copper Company
smelter, the source whose emissions caused the SO
3. What is the Current Status of the Area?
On June 16, 1983, the smelter ceased all operation. On July 10, 1987, Kennecott allowed all air quality permits to expire. Subsequently all copper smelting equipment was removed from the McGill facility in November of 1990, and the building that housed the smelter operation was dismantled in May of 1990. Finally, on September 6, 1993, Kennecott demolished the 750 foot stack which was the last remaining vestige of copper smelting operation. The smelter tailings piles have been re vegetated and pose no threat of emissions. The area remains sparsely settled, and there are no industrial or commercial activities in or near the nonattainment area.
Ambient air quality monitoring from 1979 to 1983 indicates there
were no violations during the last years of the smelter operation. The monitor was removed when the smelter shut down.
D. What Are the Applicable CAA Provisions for SO
The air quality planning requirements for SO
1. What Statutory Provisions Apply?
CAA Sections 191 and 192 address requirements for SO
CAA Amendments. Among other requirements, CAA Section 172 provides that
SIPs must 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 as
expeditiously as practicable and shall provide for attainment.
\3\ In 1975, we disapproved Nevada's Article 8.1.3 and the
control strategy for the Nevada Intrastate Region and promulgated
regulations for the smelter (40 CFR 51.1475). Later, Nevada issued a
nonferrous smelter order pursuant to Section 119 of the CAA as
amended in 1977, and the smelter was permanently closed shortly after the State issued a second order.
E. What Are the Applicable Provisions for SO
1. What Are the Statutory Provisions?
a. CAA Section 107(d)(3)(E).
The 1990 CAA Amendments revised section 107(d)(3)(E) to provide
five specific requirements that an area must meet in order to be redesignated from nonattainment to attainment:
(1) The area must have attained the applicable NAAQS;
(2) The area has met all relevant requirements under section 110 and Part D of the Act;
(3) The area has a fully approved SIP under section 110(k) of the Act;
(4) The air quality improvement must be permanent and enforceable; and,
(5) The area must have a fully approved maintenance plan pursuant to section 175A of the Act.
b. CAA Section 175A.
CAA section 175A provides the general framework for maintenance plans. The maintenance plan must provide for maintenance of the NAAQS for at least 10 years after redesignation, including any additional control measures as may be necessary to ensure such maintenance. In addition, maintenance plans are to contain such contingency provisions as we deem necessary to assure the prompt correction of a violation of the NAAQS that occurs after redesignation. The contingency measures must include, at a minimum, a requirement that the state will implement all control measures contained in the nonattainment SIP prior to redesignation. Beyond these provisions, however, CAA section 175A does not define the content of a maintenance plan.
2. What General EPA Guidance Applies to Maintenance Plans?
Our primary general guidance on maintenance plans and redesignation
requests is a September 4, 1992 memo from John Calcagni, entitled
``Procedures for Processing Requests to Redesignate Areas to
Attainment'' (``Calcagni Memo''). Specific guidance on SO
3. What Are the Requirements for Redesignation of SingleSource
SO
Our historic redesignation policy for SO
(1) Emissions inventories representing actual emissions when
violations occurred; current emissions; and emissions projected to the 10th year after redesignation;
(2) Dispersion modeling showing that no NAAQS violations will occur
over the next 10 years and that the shutdown source was the dominant cause of the high concentrations in the past;
(3) Evidence that if the shutdown source resumes operation it would
be considered a new source and be required to obtain a permit under the
Prevention of Significant Deterioration provisions of the CAA; and
(4) A commitment to resume monitoring before any major SO
III. Review of the Nevada State Submittals Addressing these Provisions
A. Is the Maintenance Plan Approvable?
1. Did the State Meet the CAA Procedural Provisions?
On February 14, 1995, the Nevada Division of Environmental Protection (NDEP) submitted to EPA the ``Redesignation Request and Maintenance Plan for the National Sulfur Dioxide StandardCentral Steptoe Valley'' (``Maintenance Plan''). The State adhered to its SIP adoption procedures. This submittal became complete by operation of law 6 months later. A supplement to the Maintenance Plan was provided in the form of a letter from Allen Biaggi, Administrator, Nevada Division of Environmental Protection, to Wayne Nastri, Regional Administrator, EPA Region IX, dated February 27, 2002 (``Biaggi letter''). 2. Does the Area Qualify for Review under the Seitz Memo?
a. Were the Area's Violations Caused by a Major Point Source of SO
As discussed above, the only nonnegligible source of
SO
b. Has the State Met the Requirements of the Seitz Memo?
As discussed below, the State has addressed the requirements in the
Seitz Memo for emissions inventories, modeling, permitting of major new
sources, and agreement to commence monitoring if a new major source
locates in the area. Therefore, the State has met the special criteria
in the Seitz Memo for approval of maintenance plans and redesignation requests.
(1) Emissions Inventory. The State provided the 3 emissions
inventories specified in the Seitz Memo for the sources in, and within
50 kilometers of, the Steptoe Valley nonattainment area. For a
representative year when the copper smelter was in operation (1978),
direct SO
[[Page 17942]]
in the nonattainment area or within 50 kilometers of the area, however, the State predicts no current or projected SO
concentrations in Steptoe Valley. We find that the modeling in the
Maintenance Plan meets CAA requirements and our applicable guidance, including the Seitz Memo.
(3) Permitting of New Sources. The NDEP has confirmed that the
State would consider that any source resuming operation at the site of
the copper smelter (or at any other location within the nonattainment
area) to be a ``new'' SO
(4) Monitoring. NDEP has confirmed that the State has the authority
to ensure that monitoring is required if a major SO
c. Has the State Met the Remaining Maintenance Plan Provisions?
As discussed above, CAA Section 175A sets forth the statutory requirements for maintenance plans, and the Calcagni and Shaver memos cited above contain specific EPA guidance. The only maintenance plan element not covered by the Seitz Memo is the contingency provision. CAA Section 175A provides that maintenance plans ``contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.''
The Steptoe Valley Maintenance Plan includes the State's commitment
to continue to implement and enforce measures necessary to maintain the
SO
The Calcagni Memo emphasizes the importance of specific contingency
measures, schedules for adoption, and action levels to trigger
implementation of the contingency plan. Since there are no remaining
SO
B. Has the State Met the Redesignation Provisions of CAA Section 107(d)(3)(E)?
1. Has the Area Attained the 24Hour and Annual SO
As discussed above, the normal prerequisite for redesignation is
submittal of qualityassured ambient data with no violations of the
SO
2. Has Each Area Met All Relevant Requirements Under Section 110 and Part D of the Act?
CAA Section 110(a)(2) contains the general requirements for SIPs
(enforceable emission limits, ambient monitoring, permitting of new
sources, adequate funding, etc.) and Part D contains the general
provisions applicable to SIPs for nonattainment areas (emissions
inventories, reasonably available control measures, demonstrations of
attainment, etc.). Over the years, we have approved Nevada's SIP as
meeting the basic requirements of CAA Section 110(a)(2), and the CAA
Part D requirements for Steptoe Valley were addressed primarily by the
regulations applicable to the Kennecott facility during the period of
its operation. The State has thus met the basic SIP requirements of the CAA.
3. Does Each Area Have a Fully Approved SIP Under Section 110(k) of the Act?
The Nevada SIP for this area originally had a single deficiency
the State's regulation for the smelterwhich led first to the
promulgation of a Federal regulation, and then to the issuance of a
nonferrous smelter order (NSO). The FIP and NSO were mooted by the
permanent shutdown of the source, which left no remaining SIP deficiencies.
4. Has the State Shown That the Air Quality Improvement in Each Area Is Permanent and Enforceable?
The Maintenance Plan shows that the exclusive cause of past
SO
5. Does Each Area Have a Fully Approved Maintenance Plan Pursuant to Section 175A of the Act?
As discussed above, we are approving the Steptoe Valley Maintenance Plan in this action.
IV. Final Action
We are approving the Maintenance Plan for the Steptoe Valley area
under CAA Sections 110 and 175A. We are also approving the State's
request to redesignate the Steptoe ValleyCentral area to attainment of the primary SO
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the State plan and redesignate the area if relevant adverse comments are filed. This rule will be effective June 11, 2002 without further notice unless relevant adverse comments are received by May 13, 2002. If we receive such comments, this action will be withdrawn before the effective date. All public comments received will then be addressed in a subsequent final rule based on the proposed action. We will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective June 11, 2002.
V. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. 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). This action
merely approves State law as meeting federal requirements and imposes no additional
[[Page 17943]]
requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves preexisting requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 1044).
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 action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. 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. 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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 29, 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
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur dioxide.
40 CFR Part 81
Environmental protection, Air pollution control, National parks, Wilderness areas.
Dated: March 24, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
PART 52[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart DDNevada
2. Section 52.1470 is amended by adding paragraphs (c)(39) and (c)(40) to read as follows:
Sec. 52.1470 Identification of plan.
* * * * *
(c) * * *
(39) The following plan was submitted on February 14, 1995, by the Governor's designee.
(i) Incorporation by reference.
(A) Redesignation Request and Maintenance Plan for the National
Sulfur Dioxide StandardCentral Steptoe Valley, adopted by Nevada Division of Environmental Protection on February 14, 1995.
(40) The following plan supplement was submitted on February 27, 2002, by the Governor's designee.
(i) Incorporation by reference.
(A) Supplement to the Maintenance Plan for the National Sulfur
Dioxide StandardCentral Steptoe Valley (Letter from Allen Biaggi,
Administrator, Nevada Division of Environmental Protection, to Wayne
Nastri, Regional Administrator, EPA Region IX, dated February 27, 2002).
* * * * *
PART 81[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.329 the SO
* * * * *
[[Page 17944]]
NevadaSO
Steptoe Valley (179)(1029N, 6167E): Central. .............. .............. .............. X
* * * * * * *
* * * * *
[FR Doc. 028289 Filed 41102; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Valerie Cooper, Grants and Program Integration Office (AIR8), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 941053901. Telephone: (415) 9474103. Email: Cooper.Valerie@epa.gov
Common CFR Searches
14 CFR Part 39 40 CFR Part 52 14 CFR Part 71 33 CFR Part 165 50 CFR Part 679 26 CFR Part 1 40 CFR Part 180 47 CFR Part 73 50 CFR Part 17 33 CFR Part 117 44 CFR Part 67 50 CFR Part 648 14 CFR Part 97 33 CFR Part 100 40 CFR Part 63 50 CFR Part 622 26 CFR Part 301 39 CFR Part 111 40 CFR Part 300 50 CFR Part 660 44 CFR Part 65 40 CFR Parts 52 and 81 40 CFR Part 271 47 CFR Part 64 50 CFR Part 665 47 CFR Part 76 50 CFR Part 229 14 CFR Part 23 14 CFR Part 25 21 CFR Part 522