[Federal Register Volume 61, Number 193 (Thursday, October 3, 1996)]
[Rules and Regulations]
[Pages 51599-51611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25400]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ033-0007 FRL-5628-6]
Approval and Promulgation of Implementation Plans; Arizona--
Maricopa Nonattainment Area; Carbon Monoxide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving contingency measures adopted pursuant to the
Clean Air Act (CAA) and submitted to EPA by the State of Arizona as
revisions to the Arizona State Implementation Plan (SIP) for the
Maricopa (Phoenix) carbon monoxide (CO) nonattainment area. Based on
the approval of these measures, EPA is withdrawing its federal
contingency process for the Maricopa area and its proposed list of
highway projects subject to delay.
EFFECTIVE DATE: December 2, 1996.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, A-2-1, Air and Toxics
Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, California 94105, (415) 744-1248.
SUPPLEMENTARY INFORMATION:
I. Background
A. Federal Contingency Process
On February 11, 1991, EPA disapproved elements of the Arizona CO
SIP and promulgated a limited federal implementation plan (FIP) for the
Maricopa County (Phoenix) CO nonattainment area in response to an order
of the Ninth Circuit Court of Appeals in Delaney v. EPA, 898 F.2d 687
(9th Cir. 1990).1 For a discussion of Delaney, the SIP
disapproval, and the FIP, see the notice of proposed rulemaking (NPRM)
for the FIP, 55 FR 41204 (October 10, 1990) and the notice of final
rulemaking (NFRM) for the FIP, 56 FR 5458 (February 11, 1991).
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\1\ While the FIP was promulgated after the enactment of the
1990 Clean Air Act Amendments, it was designed, pursuant to the
Delaney Court's order, to comply with the CAA and EPA guidance as
they existed prior to the 1990 Amendments.
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As required by the Delaney order, the FIP contained a two-part
contingency process consistent with the Agency's 1982 ozone and CO SIP
guidance regarding contingency procedures.2 These two parts were a
list of transportation projects that would be delayed while an
inadequate plan was being revised and a procedure to adopt measures to
compensate for unanticipated emission reduction shortfalls. The FIP
contingency process is described in detail at 56 FR 5458, 5470-5472.
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\2\ ``State Implementation Plans; Approval of 1982 Ozone and
Carbon Monoxide Plan Revisions for Areas Needing an Attainment Date
Extension. Final Policy.'' 46 FR 7182 at 7187, 7192 (January 22,
1981) (hereafter referred to as ``1982 guidance'').
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Implementation of the FIP contingency process was triggered by
violations of the CO standard in Phoenix in December 1992. On June 28,
1993 (58 FR 5458), EPA published a notice of proposed rulemaking
proposing to find that the implementation plan was inadequate
[[Page 51600]]
and that additional control measures were necessary to attain and
maintain the CO national ambient air quality standard (NAAQS) in the
Maricopa area. In the same notice, EPA also proposed an updated list of
highway projects subject to delay while the implementation plan was
being revised. On August 9, 1993, EPA issued a SIP call under section
110(k)(5) of the CAA requiring that Arizona submit a new plan by July
19, 1994. Arizona submitted SIP revisions to EPA in November 1993,
March 1994 and August 1995 that contained new control measures and a
demonstration that the area would attain the CO NAAQS by December 31,
1995, the attainment deadline under the 1990 Clean Air Act Amendments
for CO nonattainment areas classified as ``moderate'' such as
Phoenix.3 See CAA section 186(a). As a result, EPA took no final
action on the June 28, 1993 proposal and is today withdrawing that
proposal.
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\3\ At the time of the SIP submittals that are the subject of
today's document, Phoenix was classified as moderate and, because
its design value is under 12.7 ppm, was considered a low moderate
area. EPA has recently found that the Phoenix area failed to attain
the CO NAAQS by the statutory deadline. See 61 FR 39343 (July 29,
1996) As a consequence of this finding, the area has been
reclassified to ``serious'' under section 186(b)(2). As a result,
the area is now subject to the section 187(b) requirements for
serious CO areas. These requirements include those applicable to CO
areas with design values between 12.7 ppm and 16.4 ppm (high
moderate areas) in section 187(a). For the purpose of today's
action, however, the relevant CAA requirements are those that apply
to low moderate CO nonattainment areas. The serious area
requirements are referred to throughout this notice when they inform
individual discussions.
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B. CAA Contingency Requirements and EPA Guidance
The Clean Air Act Amendments (CAAA) of 1990 completely revised the
nonattainment provisions of the Act, part D of title I, repealing the
generally applicable provisions of section 172 and adopting substantial
new requirements and planning and attainment deadlines applicable to CO
nonattainment SIPs. See sections 171-193. A number of these provisions
are discussed in detail in section III of this document.
Among the new requirements in the 1990 CAAA is section 172(c)(9)
which provides for contingency measures. Section 172(c)(9) requires
that plans for nonattainment areas ``shall provide for the
implementation of specific measures to be undertaken if the area fails
to make reasonable further progress, or to attain the national ambient
air quality standard by the attainment date applicable under this part
[D]. Such measures shall be included in the plan revision as
contingency measures to take effect in any such case without further
action by the State or the Administrator.''
EPA has issued several guidance documents related to the post-1990
requirements for CO SIPs. Among them is the ``General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990.''
See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,
1992) (hereafter ``General Preamble'') and the ``Technical Support
Document to Aid the States with the Development of Carbon Monoxide
State Implementation Plans,'' July 1992 (hereafter ``1992 TSD'').
For CO, the General Preamble addresses specifically only the
contingency measures required under section 187(a)(3) of the Act for
moderate areas with design values above 12.7 ppm (high moderate areas).
See 57 FR 13498, 13532-13533. As a low moderate area, section 187(a)(3)
did not apply to Phoenix. In connection with the discussion of
requirements for moderate ozone areas, the General Preamble addresses
generally the section 172(c)(9) requirements which are also applicable
to low moderate CO nonattainment areas such as Phoenix. See 57 FR
13498, 13510-13511. In both discussions, EPA states that the
contingency measure provisions of the 1990 Amendments supersede the
contingency requirements contained in the 1982 guidance.
The 1992 TSD contains a discussion directly applicable to low
moderate CO areas. See pages 5-6. This guidance explains that the
trigger for implementation of the section 172(c)(9) measures is a
finding by EPA that such an area failed to attain the CO NAAQS by the
applicable attainment date and that states must show that their
contingency measures can be implemented with minimal further action on
their part and with no additional rulemaking actions upon such a
finding.
In the 1992 TSD, EPA notes that section 172(c)(9) does not specify
how many contingency measures are needed or the magnitude of emission
reductions they must provide if an area fails to attain the CO NAAQS.
EPA suggests that one appropriate choice would be to provide for the
implementation of sufficient reductions in vehicle miles traveled (VMT)
or emission reductions to counteract the effect of one year's growth in
VMT while the state revises its SIP to incorporate the new requirements
for a serious CO area. Thus, in suggesting a benchmark of one year's
growth in VMT, EPA concluded that the purpose of the Act's contingency
requirement is to maintain the actual attainment year emissions level
while the serious area attainment demonstration is being developed.
II. Summary of Proposed Action
On April 9, 1996 (61 FR 15745), EPA proposed to approve two
contingency measures submitted by the State of Arizona for the Phoenix
CO nonattainment area. These measures are enhancements to the State's
remote sensing program for vehicle emissions and a traffic diversion
measure. Both measures are described in detail in the proposal. See 61
FR 15745 at 15746-15747 and 15749-15750. In the proposal, EPA also
described in detail the SIP approval standards applicable to the
State's contingency measure submittals. EPA proposed to conclude that
the State's two contingency measures, when considered in conjunction
with emission reductions expected to be achieved in 1996 and 1997
through the continued implementation of the State's federally approved
Vehicle Emission Inspection program (enhanced I/M program), met the
requirements of section 172(c)(9) and other applicable provisions of
the CAA. The Agency's preliminary analysis reaching that conclusion is
set forth at 61 FR 15747-15750.
Based on its approval of the State's contingency measures, EPA also
proposed to withdraw the federal contingency process for the Maricopa
area from the State's applicable implementation plan and to withdraw
the list of highway projects subject to delay that was proposed on June
28, 1993 (58 FR 5458).
III. Response to Comments Received on Proposal
EPA received comments on its proposal from three groups: the
Arizona Center for Law in the Public Interest (ACLPI), the Maricopa
Association of Governments (MAG), and the Arizona Department of
Environmental Quality (ADEQ). A summary of the ACLPI and MAG comments
and EPA's responses to those comments follow. The comments submitted by
ADEQ were not substantive and are therefore only addressed in the TSD.
A. Comments by the Arizona Center for Law in the Public Interest, May
7, 1996
Comment: ACLPI states that it is strongly opposed to EPA's proposed
action and some of its reasons for this opposition are contained in its
January 4, 1994 letter commenting on the EPA's December 12, 1993
proposal (58 FR 64530). ACLPI requests that its previous comments of
January 4, 1994 be incorporated by reference into this
[[Page 51601]]
rulemaking along with the docket for the December 12, 1993 proposal.
Response: EPA has incorporated ACLPI's January 4, 1994 comment
letter into the docket for this rulemaking and, to the extent that the
comments are germane to this rulemaking, has responded to them below.
The vast majority of ACLPI's 1994 comments dealt with the specific
merits of EPA's proposed substitution of the Maricopa Association of
Governments (MAG) contingency process and the State's gasoline
volatility control measure for the FIP's contingency process and
highway delays. Because EPA is not acting in this rulemaking on either
the MAG process or the volatility control measure, most of ACLPI's 1994
comments are not relevant to this action. ACLPI did comment at that
time on the application of CAA section 193 to the FIP contingency
process and has made almost identical comments on this action. EPA has
responded to these comments below.
It should be noted that EPA has not finalized the December 12, 1993
proposal and has not done so for reasons unrelated to the comments
received on the proposal. Because it is acting on an entirely different
State submittal from the one it proposed to approve in December 1993,
EPA does not believe that the rulemaking docket for that proposal,
except for ACLPI's comment letter, is relevant to this document.
Therefore, EPA has included in the docket for today's rulemaking only
ACLPI's comment letter from the docket for the 1993 proposal.
Comment: ACLPI comments that EPA's proposed action violates the
CAA's antibacksliding clause. Under section 193 of the CAA, no control
requirement in effect, or required to be adopted by an order in effect
before the date of enactment of the 1990 CAAA in any nonattainment area
may be modified in any manner unless the modification insures
equivalent or greater emission reductions. The contingency provisions
of the existing CO FIP were ordered by the Ninth Circuit prior to
enactment of the 1990 CAAA (Delaney v. EPA, 898 F.2d 687, entered March
1, 1990) and, therefore, according to ACLPI, cannot be modified without
insuring equivalent or greater emission reductions. ACLPI asserts that
the proposal does not assure equivalent or greater emission reductions
and provides several grounds for this assertion.4
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\4\ In extensive comments on this issue, ACLPI argues that the
SIP contingency measures approved today cannot supplant the FIP
contingency process because they do not assure equivalent or greater
emission reductions as required by section 193. Because EPA does not
agree, as discussed below, with ACLPI's basic premise that the FIP
contingency process is a control requirement within the meaning of
section 193, for which equivalent emissions would otherwise be
required prior to substitution, the Agency is not addressing ACLPI's
equivalency arguments in today's notice.
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ACLPI also disagrees with the Agency's statement that section 193
does not apply to the FIP contingency provisions because those
provisions constitute ``procedures'' rather than ``control
requirements.'' ACLPI claims that the FIP provisions are not merely
procedural but are also substantive because they mandate EPA adoption
of specific control measures adequate to produce attainment and delay
of road projects. The FIP contingency provisions have already been
triggered.
Further, ACLPI does not agree that the control requirements
preserved by section 193 are limited to measures that have previously
been identified and defined in detail, or that the term ``control
requirement'' excludes mandated procedures. ACLPI argues that no such
limitation appears in the language of the statute and such limitation
would sharply conflict with the statutory purpose-namely to prevent
backsliding. ACLPI believes that EPA's construction also conflicts with
the Agency's own policies and guidelines and with the Act itself, all
of which require implementation plans to include both procedural and
substantive provisions, and which treat both as enforceable control
requirements.
Response: ACLPI made the same comments regarding the applicability
of section 193 to the FIP in its January 4, 1994 comment letter. The
following discussion is a response to both the 1994 and 1996 comments.
EPA addressed the relevancy of section 193 to its proposed action
in the April 9, 1996 notice (61 FR 15748-49). The Agency concluded that
the FIP contingency process does not constitute a ``control
requirement'' within the meaning of section 193 of the Act (see
footnote 10 for the text of section 193) and provided its reasoning.
EPA elaborates here on its section 193 discussion in the proposal.
The contingency process contained in the Maricopa CO FIP was
required by a March 1, 1990 order of the Ninth Circuit--before the
enactment of the CAAA on November 15, 1990. Having concluded that
Maricopa's pre-amendment CO plan did not contain contingency procedures
that met EPA's 1982 guidance, the Ninth Circuit ordered EPA to
promulgate a FIP that contained contingency procedures in accordance
with that guidance. Delaney, at 695. The Court, however, did not order
EPA to implement that process or to promulgate any specified control
requirements in that plan. Indeed, the inclusion of any specific
control requirements by EPA would have been inconsistent with the terms
and intent of EPA's 1982 guidance on contingency procedures. EPA's 1982
guidance required a two-part contingency plan:
``The first part * * * [is] a list of planned transportation
measures and projects that may adversely affect air quality and that
will be delayed, while the SIP is being revised, if expected
emission reductions or air quality improvements do not occur. The
second part * * * consists of a description of the process that will
be used to determine and implement additional transportation
measures beneficial to air quality that will compensate for the
unanticipated shortfalls in emission reductions. (45 FR 7187)
A list of highway projects that may be delayed and a description of
actions that may occur at some later date are not control requirements.
A list and a description have no air quality impacts and yield no
emission reductions. Nor do they have any potential for either air
quality impacts or emission reductions until and unless they are
triggered by ``unanticipated shortfalls in emission reductions.'' Even
triggered, the particular contingency process in the Maricopa FIP is
not a control requirement within the meaning of section 193.
The FIP contingency process, promulgated in accordance with the
Court's order, consists of an intricate series of actions by EPA
potentially spanning a minimum of 14 to 16 months. The federal process
may involve, among other things, various assessments and findings, air
quality modeling, and the review and the potential adoption of
additional control measures. The eventual length and scope of the
process is dependent upon the outcome of the assessments and findings
called for in the process and is, therefore, not predictable in
advance. See 56 FR 5471-5472.
Likewise, the highway delay provision in the FIP contingency
process involves the development of a new list of highway projects with
potentially adverse air quality impacts and triggering of project
delays only if certain findings are made as part of the overall
contingency process. Since it is not known in advance what projects, if
any, will be listed and whether any projects will be delayed, the scope
of highway delays is also not predictable. Additionally, because the
contingency process only requires the delay of highway project
construction and not elimination of the projects altogether,
[[Page 51602]]
the long-term direct impact on air quality and attainment--good or
bad--is also extremely uncertain.5
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\5\ ACLPI notes (repeating an EPA statement) that the highway
delay provision provides an important coercive benefit in inducing
the State to adopt control measures. However, if the primary impact
of the highway delay provision is to leverage State controls, then
the provision is best characterized, in this context, as a sanction
and not as a control requirement.
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While the term ``control requirement'' is not defined in the Act,
it is generally viewed as a discrete regulation directed at a specific
source of pollution; e.g., an emission limitation on a smoke stack at a
power plant. By contrast, a contingency process, as outlined by EPA's
1982 guidance, is much broader and more far-reaching than a simple,
quantifiable control limitation.6
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\6\ It is instructive to contrast the FIP contingency process,
and EPA's 1982 guidance on which it is based, with the new
contingency measure requirements in the 1990 CAAA. For example,
section 172(c)(9) requires all nonattainment area plans to provide
for the implementation of specific measures to be undertaken if the
area fails to attain the NAAQS by the applicable attainment date.
See also sections 187(a)(3) and 182(c)(9). The remainder of this
discussion refers primarily to section 172(c)(9) because, as stated
before, it is the only contingency measure requirement that applies
to Maricopa.
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It should also be noted that the use of the term ``control
requirement'' in the Act is unique to section 193. Its closest parallel
is the use of the term ``control measures'' in various provisions of
the statute. The term ``control measures'' in these provisions clearly
means direct, effective, enforceable controls on sources of air
pollution (such as reasonably available control technologies or
transportation control measures) and not procedures for the adoption of
such controls.7
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\7\ Wherever the statute mandates ``control measures'' it is
clear that it is speaking in terms of discrete means or techniques
of controlling emissions from particular sources. For instance,
section 110(a)(2)(A) requires state implementation plans to include
enforceable emission limitations ``and other control measures,
means, or techniques * * *'' as are necessary to attain the national
standards. All state plans for nonattainment areas must also provide
``for the implementation of all reasonably available control
measures * * * (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).'' Section
172(c)(1). See also section 172(c)(6).
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EPA also disagrees with ACLPI that the failure to include the FIP
procedures or process within the meaning of section 193's ``control
requirement'' conflicts with the statutory purpose of preventing
backsliding by assuring that modifications will not occur without the
substitution of equivalent or greater emission reductions. This
argument would have some merit if section 193 were the sole savings
clause in the Act. The Act, however, has other savings clauses,
including section 110(n) which specifically applies to all plan
elements, procedural or otherwise. Moreover, a procedure per se does
not yield emission reductions. For example, the FIP contingency process
is just as likely to conclude with no additional emission
reductions.8 Similarly, as discussed above, highway delays may
result in no emission reductions.
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\8\ See, for example, the end of section (a) under Determination
of the Need for Additional Measures (56 FR 5471):
Should the Agency find that no additional measures are needed,
the [Notice of Final Rulemaking] shall contain this finding and
conclude the contingency process.
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EPA agrees with ACLPI that the Agency's own policies and guidelines
require implementation plans to include both procedural and substantive
provisions and that the Agency considers both as enforceable elements
of SIPs. The fact that a particular provision is enforceable, however,
does not automatically make it a control requirement. Under section
113(a), EPA can enforce ``any requirement or prohibition of an
applicable implementation plan.'' There is no requirement that such
provisions be considered to be ``control requirements'' in order to be
enforceable.9
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\9\ See also section 118(a) of the CAA which requires compliance
with all requirements whether substantive or procedural.
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In summary, under a straightforward reading, the savings clause is
best viewed as an anti-backsliding provision by which Congress intended
to prevent the relaxation of actual, existing control requirements on
specific pollution sources or controls required to be adopted for
specific pollution sources while states are proceeding with their new
planning obligations under the 1990 Amendments.
There is simply no evidence that Congress intended ``control
requirement'' to encompass a process as complex and broad as the FIP
contingency procedures. Indeed it is fundamental that the words of a
statute are to be given their ordinary, plain meaning unless it is
clear that some other meaning is intended. See Columbia Pictures
Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278,
280 n. 4 (9th Cir. 1989); Arizona Elec. Power Coop., Inc. v. United
States, 816 F.2d 1366, 1375 (9th Cir. 1987), cert. denied, 488 U.S. 818
(1988). EPA's interpretation of the savings clause is in full accord
with the plain language of section 193. Under the standard articulated
in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), where Congress has
spoken directly on an issue, that is the end of the matter.
Beyond the plain language, however, EPA's interpretation of section
193 is consistent with the structure of the 1990 Amendments as they
relate to the new planning requirements for nonattainment areas and the
failure of those areas to attain the NAAQS. Under the pre-1990 Act,
nonattainment areas were not classified according to the severity of
their air quality problems. An area found to have failed to attain by
the applicable attainment deadline was subject only to a SIP call under
pre-amended section 110. The pre-amended Act contained no provisions
for contingency procedures or measures. Therefore, EPA added
administratively in the 1982 guidance a SIP process that included,
among other things, a delay of highway projects that could adversely
affect air quality while the SIP was being revised in response to a SIP
call.
In contrast, under the 1990 CAAA, a finding of failure to attain by
the applicable attainment date for any area triggers the implementation
of discrete contingency measures under new section 172(c)(9) and also
results in the area being reclassified. The reclassification in turn
results in a new attainment deadline and more stringent planning
requirements to be submitted on a date certain. See e.g., sections
186(b)(2), 186(c) and 187(f). The eternal retention of the FIP
contingency process (or its equivalent) in the applicable plan would
forever overlay its outdated and inconsistent planning scenario on to
the new statutory scheme.
The FIP contingency process was never grounded in a statutory
requirement but was rather based on guidance designed to fill a
perceived gap in the absence of a statutory requirement. In 1990,
Congress remedied that omission by adding both section 172(c)(9) to
fill that gap and a new scheme for additional planning for areas
failing to attain the NAAQS. As discussed above and further below,
EPA's pre-amendment contingency guidance is inconsistent with this new
statutory scheme and thus became ineffective under section 193 upon
enactment of the CAAA.10 EPA affirmed
[[Page 51603]]
this position in the General Preamble. See General Preamble at 57 FR
13498, 13511 and 13532. It is axiomatic that two parts of a single
statutory section cannot be read to have opposite effects. Since the
first sentence of section 193 renders ineffective the 1982 guidance for
contingency processes, the second sentence cannot be read to retain a
requirement that is intimately based on that 1982 guidance.
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\10\ Section 193 states:
Each regulation, standard, rule, notice, order and guidance
promulgated or issued by the Administrator as in effect before
November 15, 1990 shall remain in effect according to its terms,
except to the extent otherwise provided under this chapter,
inconsistent with any provision of this chapter, or revised by the
Administrator. No control requirement in effect, or required to be
adopted by an order, settlement agreement, or plan in effect before
the date of enactment of the Clean Air Act Amendments of 1990 in any
area which is a nonattainment area for any air pollutant may be
modified after such enactment in any manner unless the modification
insures equivalent or greater emission reductions of such air
pollutant. (Emphasis added).
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Both the plain language of section 193 and the new statutory scheme
support EPA's interpretation that the FIP contingency process is not
saved. If, however, there is any ambiguity in the savings clause, EPA's
interpretation of section 193 is reasonable, consistent with the
language and revised structure of the Act, and serves to advance the
goals of the statute. Therefore, it is a permissible construction
entitled to considerable deference. Chevron, 467 U.S. at 844.
Comment: ACLPI disagrees with EPA's suggestion that the contingency
mandate in section 172(c)(9) supplants the FIP contingency provisions
and EPA's pre-amendment contingency guidance. ACLPI asserts that there
is nothing in the Act or its legislative history to suggest such a
result and such a result would be contrary to sections 110(n), 193, and
other provisions of the Act. Therefore, according to ACLPI, the section
172(c)(9) mandate is in addition to, and not in lieu of pre-existing
control requirements. ACLPI concludes that in enacting the 1990
Amendments, Congress made clear that it intended to strengthen the Act,
and preserve preexisting control requirements to ensure maximum
progress toward clean air.
Response: As discussed previously, the Agency's 1982 contingency
guidance was an effort by EPA to fill a gap in the statute as it
existed prior to the 1990 CAAA. The pre-amended Act contained no
requirement for contingency provisions in non-attainment area plans. In
amending the Act in 1990 to explicitly include a requirement for
specific contingency measures in section 172(c)(9), Congress clearly
anticipated that EPA would update its nonattainment area guidance to
reflect the new statutory scheme.11 There is nothing in the
language or structure of the 1990 Amendments or their legislative
history to suggest that Congress intended to reaffirm EPA's 1982
guidance regarding appropriate contingency procedures. On the contrary,
by providing explicit contingency measure requirements that differed
from that guidance, if anything, it can be concluded that Congress
intended to overrule the 1982 guidance in the 1990 Amendments.
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\11\ Additional contingency provisions for certain moderate CO
nonattainment areas are found in section 187(a)(3). See also
contingency provisions in section 182(c)(9) for certain ozone
nonattainment areas.
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Moreover, the amended Act and EPA's pre-amendment contingency
guidance are in fact both duplicative and inconsistent and thus made
ineffective by section 193 on enactment of the CAAA. See footnote 10.
EPA's 1982 contingency guidance required the State to invoke a new
planning process if the SIP was inadequate for attainment. In the 1990
Amendments, Congress established a different scheme for areas that
failed to attain.12 The new contingency measure provisions serve a
different purpose than EPA's pre-amendment guidance in that they call
for immediate implementation of already adopted control measures.
Consistent with the new scheme for implementation of contingency
measures and reclassification with new planning requirements for areas
that fail to attain, EPA stated that its pre-amendment guidance had
been superseded. See General Preamble at 13498, 13511, and 13532. Such
statements are reasonable in light of the 1990 Amendments and was
within EPA's discretion. See Ober v. EPA, 84 F.3d 304, 311-312 (9th
Cir. 1996).
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\12\ EPA's 1982 policy stated that ``the contingency provision
must be initiated when the EPA Administrator determines that a SIP
is inadequate to attain NAAQS and additional emission reductions are
necessary.'' 46 FR 7187. In the 1990 Amendments, Congress in section
186(b)(2)(A) required EPA to determine within 6 months of an area's
attainment date whether the area has attained the CO standard and,
should EPA find a failure to attain, the area is reclassified by
operation of law to serious, triggering new planning requirements
under section 187(f). Under section 172(c)(9), contingency measures
are also triggered if an area fails to attain.
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Furthermore, neither section 193 nor section 110(n) of the Act bars
revisions to EPA's 1982 contingency guidance as ACLPI suggests. Both
sections provide for revisions to EPA guidance and SIPs upon
affirmative action by the Administrator.13
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\13\ Section 110(n)(1) states that ``[a]ny provision of any
applicable implementation plan that was approved or promulgated by
the Administrator pursuant to this section as in effect before
November 15, 1990, shall remain in effect as part of such
implementation plan, except to the extent that a revision to such
provision is approved or promulgated by the Administrator pursuant
to this chapter.'' (Emphasis added). However, the FIP contingency
provisions were not promulgated as a part of the Arizona applicable
implementation plan until February 11, 1991, and therefore are
clearly not subject to section 110(n)(1). Further, even if this
section applied to the FIP contingency process, it would, by its
terms, present no impediment to EPA's withdrawal of the FIP process.
See footnote 10 for the text of section 193.
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Comment: ACLPI also disagrees with EPA's proposed interpretation of
section 172(c)(9) as requiring only such SIP contingency measures as
necessary to offset one year's growth in vehicle miles traveled (VMT).
ACLPI claims that the focus of section 172(c)(9), other provisions of
172, and section 110 is on timely attainment and achievement of
reasonable further progress (RFP)--not on VMT offsets. Thus ACLPI
states that contingency measures must be adequate to make up the
entirety of any potential emission reduction shortfall. ACLPI further
asserts that EPA's proposed approach would allow states to defer
attainment and RFP. It also allegedly allows states to defer attainment
to the deadline for the new classification, even if additional
contingency measures could produce attainment much sooner.
Response: First, it should be noted that there is nothing in the
plain language of section 172(c)(9) or any other provision of the Act
to support ACLPI's contention that contingency measures must be
adequate to make up the entirety of any potential emission reduction
shortfall. Indeed, such an interpretation makes no sense when
considered in the context of the new statutory scheme. Because section
172(c)(9) does not specify either the number or type of contingency
measures required, EPA's reasonable interpretation of the required
measures should receive deference. Chevron, 467 U.S. at 844.
As discussed before, section 172 and the pollutant-specific
requirements in sections 181 through 189 establish a basic
classification scheme and associated planning cycles. This scheme
started with the original classifications of nonattainment areas
following enactment. An area's initial classification established its
attainment deadline and the initial elements of its plan. Sections 181,
186, and 188 all require EPA to review an area's air quality after the
passage of its attainment date to determine if an area in fact attained
by its deadline. If the Agency finds that an area has not attained,
then the area is reclassified to the next higher classification by
operation of law.
This reclassification triggers new planning requirements that in
all cases lead to the development of new attainment and RFP
demonstrations. The role of the section 172(c)(9) measures in this
scheme is to assure areas do not lose ground during the period that
they are developing these new plans. It is not the role of these
[[Page 51604]]
measures to replace or accelerate the development of the new plans. To
require the section 172(c)(9) contingency measures to be adequate to
make up the entirety of any potential emission reduction shortfall
would in fact result in replacing the reclassification scheme in part D
with just section 172(c)(9).14 Such a result is clearly not what
Congress intended. Thus it is the basic statutory structure, and not
EPA's approach, that allows states to defer attainment to the deadline
for the new classification.15
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\14\ The fact that Congress did not intend section 172(c)(9)
contingency measures to entirely make up any shortfall needed for
attainment of the CO standard is made even clearer by section
187(g). Section 187(g) requires submittal, nine months after EPA
determines that a serious CO nonattainment area failed to attain by
December 31, 2000, of controls sufficient to demonstrate a five
percent per year reduction in CO emission until attainment occurs.
If section 172(c)(9) were intended to require immediate
implementation of measures sufficient to correct any attainment
shortfall, then section 187(g) would not be necessary.
\15\ Note, however, that the attainment deadline for the new
classification is not a fixed date providing a number of additional
years while attainment is reached; rather the deadline is ``as
expeditiously as practicable but not later than'' a fixed date. If
practicable controls can bring an area into attainment prior to the
fixed date, they must be implemented to achieve earlier attainment.
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Regarding ACLPI's disagreement with EPA's use of one year's growth
in VMT as a benchmark for the amount of emission reductions section
172(c)(9) measures should achieve,16 it should be noted that EPA
went beyond the suggested approach in the 1992 TSD. EPA showed in its
proposal that the State's contingency measures coupled with continuing
emission reductions from the State's enhanced inspection and
maintenance program (as well as other measures whose effectiveness was
built into the baseline) provided sufficient emission reductions to
offset on-road mobile source emissions growth during the period of time
that the Phoenix area would be developing its serious area attainment
plan (i.e., from early 1996 until late 1997).
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\16\ See section I.B. of this notice.
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EPA agrees with ACLPI that the primary thrust of sections 110 and
172 of the Act is for timely attainment and achievement of RFP and not
on VMT offsets. It, however, is an indisputable fact that the bulk of
CO emissions in Phoenix (as in the vast majority of CO nonattainment
areas) are from motor vehicles and the main culprit behind increases in
overall CO levels is growth in vehicle usage. It is, therefore,
reasonable to relate needed emission reductions from contingency
measures to the factor that most influences emissions growth, that is
vehicle miles traveled. Thus EPA's guidance on contingency measures in
the General Preamble and the 1992 TSD is reasonable.
On the other hand, as discussed above, EPA does not agree with
ACLPI that the purpose of section 172(c)(9) is to alone assure
attainment of the standard or RFP. To read that purpose into section
172(c)(9) is to ignore the broader reclassification and new planning
requirements scheme in part D of title I of the Act. For the foregoing
reasons, EPA believes that its interpretation of section 172(c)(9) is
reasonable and, as such, is entitled to considerable deference.
Chevron, 467 U.S. at 844.
Comment: ACLPI also comments that the State is not eligible to base
its contingency measures on EPA's VMT emission offset policy. According
to the General Preamble, that policy applies where failure to timely
attain or achieve RFP is due to ``exceedence of a VMT forecast'' and
the State has made no claim or showing that its failure to timely
attain or achieve RFP is due to exceedence of a VMT forecast. ACLPI
cites 57 FR 13532 for this policy.
Response: The section of the General Preamble cited by ACLPI
addresses the contingency requirement in section 187(a)(3) for high
moderate CO nonattainment areas. Section 187(a)(3) requires CO
nonattainment areas with design values of 12.7 ppm or higher (that is,
high moderate areas) to provide for the implementation of specific
measures to be undertaken if any estimate of VMT exceeds forecasts.
Section 187(a)(3) is a companion requirement to section 187(a)(2)(A)
which requires high moderate areas to forecast VMT for each year before
the attainment year and annually update those forecasts. Because
section 187(a)(3) contingency measures are triggered by higher than
expected VMT growth, it is reasonable to link its contingency measure
requirement to annual VMT growth. However, section 187(a)(3) and the
cited section of the General Preamble concern contingency requirements
applicable only to high moderate nonattainment areas whereas Phoenix is
a low moderate area. As stated previously, neither the statute nor the
General Preamble addresses how many contingency measures or emission
reductions from them are necessary in low moderate CO areas. EPA's
interpretation of the statute, which has been shown above to be
reasonable, for these areas is only in the 1992 TSD.
Comment: ACLPI comments that just offsetting one year's growth in
VMT does not even assure EPA's stated goal--namely, to prevent air
quality from worsening while the SIP is being revised. ACLPI points out
that on-road mobile sources in Phoenix contribute only about 70 percent
of the total emission inventory; therefore, there is no assurance
whatsoever that RFP will be maintained merely because VMT-related
emission increases are offset.17
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\17\ Although acknowledging that EPA's action is limited to CO,
ACLPI also comments on the Agency's section 172(c)(9) policy as it
relates to ozone. Because today's action concerns only CO
contingency measures, these comments are not germane and need not be
addressed here.
---------------------------------------------------------------------------
Response: The 70 percent figure for on-road mobile sources is the
contribution of this source category to the 1990 base year annual daily
CO season emissions inventory (found on page 3.3 of the MAG 1993 CO
Plan for the Maricopa County Area, November 1993). EPA believes that
the purpose of section 172(c)(9) for contingency measures is to prevent
air quality from worsening while the SIP is being revised. EPA's
calculations indicate that during this period total CO emissions will
not increase and the State's contingency measures therefore are
sufficient to accomplish that purpose. See the TSD for this rulemaking.
As discussed below, EPA does not believe that section 172(c)(9)
measures are required to assure RFP.
Comment: ACLPI requests the entirety of the MAG 1993 Carbon
Monoxide Plan for the Maricopa County Area (November 1993) as well as
the March 1994 Addendum to that Plan be incorporated by reference into
the record for this rulemaking.
Response: EPA has not relied on substantial portions of the MAG
1993 CO Plan for its action in this rulemaking and declines to
incorporate the entire plan into its rulemaking docket.18 The
March 1994 Addendum and relevant excerpts from the MAG 1993 CO Plan are
already included in the docket for the proposal. EPA is also
incorporating by reference the rulemaking docket for its proposed
approval of the Phoenix area's CO inventory. This docket includes
additional portions of the MAG 1993 CO Plan. EPA has included all
applicable portions of the plan in the docket for today's rulemaking.
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\18\ Section 307(d)(3) requires the docket accompanying a
proposed Agency action to include all data, information, and
documents on which the proposed rule relies. Section 307(d)(4)(B)(i)
requires the final docket to include all comments received on the
proposed rulemaking, the transcript of any public hearings, as well
as any documents which become available after the proposed has been
published and which EPA determines are of central relevance to the
rulemaking.
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Comment: ACLPI comments that even if an offset of emissions from
one year's VMT growth were sufficient to assure RFP in that year, it
would not assure continued RFP during the entire period
[[Page 51605]]
that the SIP is being revised. EPA is apparently planning to give the
State 18 months to revise the SIP and the normal approval process will
protract this SIP revision period even further.
Response: ACLPI misinterprets the RFP requirements of the CAA.
Sections 172(c)(2) and 171(1) require ``such annual incremental
reductions in emissions * * * for the purpose of ensuring attainment of
the applicable national ambient air quality standard by the applicable
attainment date'' (Emphasis added). Thus the moderate area plan for
Phoenix was required to assure RFP through 1995, the moderate area
attainment deadline under section 186(a)(1).19 However, since the
area has now been reclassified, additional RFP requirements apply to
the serious area plan. In the interim, the section 172(c)(9)
contingency measures will ensure that air quality does not deteriorate
while the plan is being revised. There is nothing in the language of
that section to suggest that the contingency measures are expected to
assure RFP during this period.
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\19\ On August 9, 1993, EPA issued a SIP call under section
110(k)(5) of the CAA that required Arizona to submit a plan to EPA
that demonstrated attainment of the CO NAAQS by December 31, 1995.
As an area with a design value under 12.7 ppm, the State would not
otherwise have been required to submit an attainment plan, including
an RFP demonstration, for the Phoenix area. See section 187(a).
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EPA does not believe that EPA's approval process can be reasonably
interpreted to ``protract the SIP revision process'' as ACLPI suggests.
Revision of the SIP clearly relates to the State's actions to develop
and submit rather than EPA's actions to approve or disapprove.
Moreover, the vast majority of State control measures do not depend
upon EPA's approval of them into the SIP to be implemented and
effective.20 Therefore, it is appropriate to consider the
contingency period to run only until the date the State is required to
submit its serious area plan with its accompanying control measures. As
discussed above, EPA has concluded that there will be sufficient
emission reductions during 1996 and 1997 to offset all emissions growth
while the plan is being revised.
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\20\ Even the contingency measures that are the subject of this
rulemaking did not require EPA's formal approval into the SIP in
order to be triggered. EPA triggered their implementation when its
finding that the Phoenix area failed to attain the CO standard
became effective on August 28, 1996.
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Comment: ACLPI comments that the Arizona's contingency measures
also fail the Act's contingency requirements because there are no
contingency measures for the contingency measures and if the first
contingency measures do not achieve the emission reductions expected of
them then there is no assurance that an offset of emissions from VMT
growth will be achieved, even in the first year.
Response: It would be an absurd reading of the Act to conclude that
contingency measures need their own contingency measures. The only
reading of the Act for which such an interpretation would make any
sense is the one that EPA has already rejected for the reasons
explained above: that section 172(c)(9) requires sufficient measures to
immediately make up any potential shortfall in attainment or RFP. As
discussed earlier, the purpose of the section 172(c)(9) contingency
measures is to assure that air quality does not worsen during the
period a new plan is being developed. This new plan will necessarily
evaluate the existing situation, including any failure of contingency
measures to achieve emission reductions, and factor the effectiveness
of existing controls into determining the additional controls necessary
for attainment.
Comment: ACLPI comments that in proposing to find that the State's
contingency measures will offset emissions from one year's VMT growth,
EPA relies primarily on emission reductions from the State's enhanced
I/M program. ACLPI asserts that this reliance is misplaced for several
reasons. First, the enhanced I/M program is not a contingency measure,
rather it is one of the primary strategies included in the SIP and the
State has already claimed emission reductions from this strategy in the
SIP attainment and maintenance demonstration. ACLPI claims that EPA
cannot now convert the program to a contingency measure to create an
offset of VMT emission increases.
Response: EPA did not claim that the Arizona's enhanced I/M program
is a section 172(c)(9) contingency measure, just that it contributes to
reducing emissions during the contingency (SIP revision) period. In
establishing a benchmark of one year's growth in VMT for these
measures, EPA intended that the status quo, as represented by the
emissions level in the attainment deadline year, be maintained during
this period. EPA believes that this result can be achieved by
considering reductions from the section 172(c)(9) measures in
combination with new reductions scheduled to occur in the area during
the SIP revision period, as long as these offsetting reductions are
from measures approved into the SIP and are in excess of reductions
occurring in the attainment deadline year. As discussed above, the
emission reductions from the enhanced remote sensing program, the
traffic diversion measure, and the additional reductions from the I/M
program in 1996 and 1997 more than meet this test.
While the State explicitly identified in the proposal emission
reductions from its enhanced I/M program in determining that the
contingency measures are adequate to maintain the area at or below 1995
levels during the contingency period, it need not have done so. In
order to make this determination, the State calculated the baseline
emissions level, i.e., the emissions level expected in the year after
the attainment deadline prior to the implementation of the contingency
measures. Rather than incorporating emission reductions from the
enhanced I/M program into the baseline, the State chose to explicitly
account for reductions from the program.21 If the State had
incorporated the emission reductions from the enhanced I/M program into
the baseline emissions level, the determination that the contingency
measures are adequate would have been the same. The difference between
explicitly accounting for reductions from the program or implicitly
including them in the emission baseline is simply the method of
bookkeeping.
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\21\ In fact, there are emission reductions anticipated to occur
after the attainment deadline year from numerous measures whose
effects are assumed in the baseline emissions. These measures
include federal tailpipe standards, oxygenated gasoline, basic I/M,
RVP limitations, and transportation control measures.
---------------------------------------------------------------------------
Comment: ACLPI comments that neither the state nor EPA has provided
viable technical justifications for the emission reductions claimed
from the enhanced I/M and enhanced remote sensing programs. There is no
explanation of how the State arrived at the estimated effectiveness
percentages for these programs. ACLPI asserts that under EPA guidelines
and rules, as well as general principles of administrative law, EPA
cannot credit these measures with emission reductions without a sound,
thoroughly justified technical basis for the level of reductions being
claimed. The State now has considerable experience with both remote
sensing and enhanced I/M in 1995 and should be required to provide
evidence of their actual performance as proof of their emission
reduction potential.
Response: EPA does not believe the State must submit evidence of
the actual performance of the enhanced I/M and remote sensing programs
to support their estimated emission reduction potential. For both the
enhanced I/M
[[Page 51606]]
and enhanced remote sensing programs, the State used EPA's MOBILE5A
model to calculate emission reductions. The MOBILE5A inputs used to
generate the reduction estimates for enhanced I/M and the methodology
and assumptions used to estimate the effectiveness of the enhanced
remote sensing program are also provided in the 1994 Addendum at pp. 3-
191 and 3-201, respectively. EPA requires the use of its latest mobile
sources emissions model (in this case,the MOBILE5A)to determine credits
for I/M programs. See 40 CFR 51.351(a) and 51.352(a).22 The MOBILE
models have been the standard methodology for this purpose for more
than a decade and EPA does not believe that it should or can require
States to independently validate the accuracy of the model.
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\22\ Remote sensing programs are components and are means of
increasing the effectiveness of I/M programs; therefore, emission
reduction estimates for these programs are also calculated using
MOBILE5a consistent with EPA guidance.
---------------------------------------------------------------------------
Comment: ACLPI comments that a related and equally serious flaw is
the State's reliance on the air quality modeling in the 1994 Addendum
that has not been reviewed and approved by EPA as part of the SIP
review process. Stating that EPA has neither proposed to approve that
modeling nor has it evaluated that modeling in the context of this
rulemaking, ACLPI maintains that if EPA is going to rely on the State's
CO modeling, it must first specifically propose approval of that
modeling and allow public comment on it.
ACLPI also comments that the emission reductions from the control
measures are not adequate. ACLPI states that the State contends that
emission reductions from the contingency measures and enhanced I/M will
be sufficient to offset increased emissions from VMT growth and bases
this claim on its projections of on-road mobile source emissions and
its estimates of emission reductions from contingency and enhanced I/M
measures. ACLPI claims that aside from the lack of substantiation for
the latter, the projections of mobile source emissions are not
supported by EPA-approved emissions inventories and VMT projections.
The State is relying on the emission inventory and VMT projections in
the MAG 1993 CO Plan for Phoenix, but EPA has not yet even proposed
approval of those components of the Plan. ACLPI further states that the
Agency cannot simply assume that the State's inventory and VMT
projections are accurate, particularly when the State's attainment
projections (based on this inventory) have proven to be incorrect nor
can EPA simply approve these items at this stage of the rulemaking.
ACLPI concludes that because a current, accurate emissions inventory is
a mandated component of the SIP, EPA must first propose approval or
disapproval of the inventory and provide an opportunity for public
comment.
Response: EPA has relied on the base year and 1995 projected year
emission inventories in the 1993 CO plan and 1994 Addendum in this
rulemaking and has recently proposed to approve the base year inventory
as meeting the requirements of sections 172(c)(3) and 187(a)(1) and
EPA's guidelines. Because it is closely related to the base year
inventory, EPA has also fully evaluated the 1995 projected year
inventory against applicable guidelines as part of its rulemaking on
the base year inventory and has found that that inventory conforms to
these guidelines. EPA's evaluation of the projected inventory can be
found in the draft TSD available for public comment in the docket for
the proposed emission inventory approval. Should EPA ultimately
disapprove the base year inventory in response to public comments on
its proposed approval or re-evaluate its finding on the projected
inventory, the Agency will consider the effect, if any, of such an
action on this rulemaking and revise it if appropriate.
EPA, however, has not relied on the air quality modeling in either
the 1993 CO plan or the 1994 Addendum for this rulemaking. Since the
adequacy of contingency measures is based on their effect on emission
levels and not on ambient air quality levels, air quality modeling does
not factor into the adequacy determination. While contingency measures
are triggered by a failure to attain the NAAQS, that determination is
based solely on monitored air quality and not on modeled air quality.
Comment: ACLPI noted that the Arizona legislature had recently
repealed the funding for the State's I/M program. It also stated that
the State had not identified the financial and manpower resources
necessary to implement enhanced remote sensing, nor provide legal
commitments to adequately fund and staff that measure. Under EPA
guidelines and rules, as well as section 110 of the Act, EPA cannot
approve, or credit the State with emission reductions for the measures
without funding or commitments.
Response: On July 18, 1996 the Governor of Arizona signed Arizona
Senate Bill 1002 (42nd Legislature, 1st Special Session). Section 51 of
the bill provided $4.3 million to fund the State's Vehicle Emissions
Inspection Program (including its enhanced remote sensing component)
23 through June 30, 1997. See section 51 of the bill. The bill
also includes a statement of intent that the program become self-
funding from July 1, 1997 on.24 See section 52 of the bill. While
there is no longer an explicit funding source identified for the
program beyond the middle of 1997, EPA believes there are adequate
grounds, based on past practice and the contribution of test fees to
the administration of the program, to believe the program will continue
operating at its current level without interruption. Arizona's I/M
program has been in operation since 1976, is a key element of both the
State's ozone and CO control strategies, and is a model for the rest of
the Country.
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\23\ There is a tendency to refer to the components of Arizona's
Vehicle Emission Inspection Program (VEIP) as if they are separate
and distinct programs. This is done primarily to identify the
additional emission reduction benefits that each new component adds
to the overall VEIP. Arizona VEIP is operated and funded as a single
program with multiple components including enhanced I/M, basic I/M,
diesel I/M, and remote sensing. See EPA's approval of Arizona's
VEIP, 60 FR 22520 (May 8, 1995).
\24\ It should be noted that the program is already partially
funded by fees charged for vehicle emission inspections. The
legislative appropriation covers the shortfall between the fees and
the cost to run the program.
---------------------------------------------------------------------------
EPA approved Arizona's basic and enhanced I/M program on May 8,
1995 (60 FR 22518). As part of that approval, EPA evaluated the program
against the requirements in 40 CFR 51.354 which requires that the State
demonstrate that appropriate administrative, budgetary, personnel, and
equipment resources have been allocated to the program.25 At that
time, EPA concluded that the funding mechanism met EPA's requirements
for I/M programs. Despite the recent turbulence in the funding for the
program, EPA believes its evaluation is still correct. Should EPA in
the future find that funding is not forthcoming for the program, EPA
would issue a SIP call based on failure to implement the program under
section 110(k)(5).
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\25\ The requirements in 40 CFR 51.354 define for I/M programs
what states must submit to meet the section 110(a)(2)(E)(i)
requirement that SIPs provide necessary assurances that adequate
personnel, funding, and authority under state law are available to
implement the program.
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Finally EPA notes that under section 307(b)(1) of the CAA,
petitions for review of the Agency's 1995 final action approving the
basic and enhanced I/M program would need to have been properly filed
within 60 days of such action. Comments relating to EPA's approval were
required to have been raised during the comment period for that
rulemaking. Therefore, ACLPI's comments regarding financial and
[[Page 51607]]
manpower resources of the I/M program are not timely.
Comment: ACLPI comments that yet another flaw is the State's use of
513 tpd as the 1995 baseline figure for on-road mobile source
emissions. MAG's 1994 Addendum projected attainment in 1995 with a
mobile source CO emission budget of 513 tpd. ACLPI notes that there
were CO violations in 1995, so the 1995 design day emissions must have
been higher than 513 tpd. Yet MAG has used this 513 tpd figure as the
baseline for projecting actual emissions in 1995, 1996, and 1997. ACLPI
concludes that because actual emissions were almost certainly higher
than these projections, MAG's projections are flawed as well.
Response: The 513 tpd figure, like all emission inventory figures,
is an estimate subject to an unavoidable degree of uncertainty. It was
arrived at through a series of modeling steps including transportation
and motor vehicle emissions modeling. See, in general, Chapter 5 of
``1990 Base Year Carbon Monoxide Emission Inventory for the Maricopa
County, Arizona Nonattainment Area,'' (located in Appendix B, Exhibit 1
of the 1993 CO Plan). Each one of these models attempts to reproduce
highly complex processes with comparatively limited data sets and thus
introduces some natural range of error into the results.26 Given
that no absolute ton per day figure is likely to be entirely accurate,
the real question is whether the use of the 513 tpd figure is
acceptable for the purpose at hand.
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\26\ For example, EPA has discussed the potential sources of
errors in the MOBILE model and work underway to correct those errors
in Highway Vehicle Emission Estimates--II, U.S. EPA, May 1995.
---------------------------------------------------------------------------
As stated before, EPA's primary test for determining the adequacy
of contingency measures is to assure emissions do not increase during
the period the SIP is being revised. This is a comparative process: is
the emission level at the end of the SIP revision period, considering
the effect of the contingency measures, less than or equal to the
emission level at the beginning of that period? Comparisons tend to
mitigate errors between numbers that are derived in similar manners
because the errors tend to cancel themselves out. Therefore, even
though 513 tpd may not be the absolute attainment emission level for
on-road motor vehicles in Maricopa, EPA believes it is acceptable for
determining the adequacy of the contingency measures since it is used
as the baseline for calculating both emissions with the contingency
measures and emissions without such measures.
Comment: ACLPI also questions the State's projections regarding the
rate of emissions growth from on-road mobile sources. The State
predicts that VMT will increase at a rate of about 3.9 percent in 1995-
96, and about 3.7 percent between 1996-97. Yet the State also predicts
that, even without additional controls, on-road mobile sources will
only increase at a rate of about 1.8 percent per year in 1995-96 and at
a rate of 1.5 percent in 1996-97. ACLPI concludes that these figures
indicate that the State is substantially understating the emissions
growth likely from on-road mobile sources and therefore understating
the emission reductions needed to offset that growth.
Response: Actually, the State is not predicting that ``without
additional controls,'' on-road mobile sources will increase at a rate
less than VMT growth. Implicit in the State's baseline inventory is the
effect of ``additional controls,'' including the impact of the federal
tailpipe standards (which reduces the composite vehicle fleet emission
rate as newer cars replace older cars) and continuing reductions from
the State's non-enhanced I/M program, oxygenated gasoline, RVP limits,
and other required controls. All of these control programs serve to
dampen the growth in CO emissions compared to growth in VMT. Therefore,
the figures cited by ACLPI do not indicate that the State is
substantially underestimating the emissions growth from on-road mobile
sources. Historically, CO emission levels in Phoenix have not increased
at the rate of VMT growth and, for many years, actually decreased as
VMT has grown. Despite the fact that the Phoenix area has not yet
attained the CO standard, it has experienced substantial reductions in
ambient CO levels even in the face of its rapid population and VMT
growth.27
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\27\ See, for example, pages 2 and 3 in ``Conformity Analysis
Appendices, Volume 2'' for the MAG Long Range Transportation Plan,
Summary and 1996 Update and the 1997-2001 MAG Transportation
Improvement Program (MAG, July 1996) which juxtapose daily VMT
figures for each year from 1979 to 1993 and the 8-hour CO
concentrations and number of annual exceedences at the Indian School
monitor from 1981 to 1993. The VMT figures double between 1981 and
1993 while CO concentrations drop by half and the number of
exceedences decreases from more than 60 to less than 5 between the
same years.
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Comment: ACLPI states that EPA's proposal to approve the State's CO
SIP contingency measures without acting on the overall CO SIP itself is
contrary to the Act. The SIP contains an attainment demonstration and
other provisions proposed by the State to meet all of the SIP
requirements for moderate CO areas and to address EPA's 1993 CO SIP
call. ACLPI asserts that under applicable court precedent (Abramowitz
v. EPA, 832 F.2d 1071 (9th Cir. 1987)), EPA cannot select out a few
provisions of the plan for approval (i.e., the contingency measures)
while deferring action on the attainment demonstration and all other
provisions.
Response: The Ninth Circuit in Abramowitz reviewed the Agency's
action to approve certain control measures in the California carbon
monoxide and ozone SIPs and to withhold action on the attainment
demonstrations in those plans. The Court concluded that EPA could not
approve the control measures without requiring any demonstration that
those measures would achieve attainment by the statutory deadline. The
control measures at issue were adopted by the State as an integral part
of the attainment and RFP demonstrations and were intended to be
implemented before the passage of the applicable attainment date. Those
control measures were not contingency measures whose implementation was
to be triggered by the failure of an area to actually make RFP or
attain, as is the case for the measures under consideration in this
rulemaking.
In addition, the Abramowitz case was decided prior to the 1990
Amendments to the Act. As noted before, the pre-amended Act had no
contingency provisions. Congress added specific contingency provisions
in 1990, including the section 172(c)(9) requirement of interest here.
This section refers to ``implementation of specific measures to be
undertaken if the area fails to make reasonable further progress, or to
attain the [NAAQS] by the attainment date applicable under this part.''
(Emphasis added)
These specific contingency measures are clearly outside the set of
control measures that make up a State's attainment and RFP
demonstrations required under sections 172(c) (1) and (2).28 They
are not triggered until or unless an area fails to make RFP or attain
by the applicable attainment date. For the foregoing reasons, EPA does
not
[[Page 51608]]
believe the Court's finding in Abramowitz applies to this rulemaking.
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\28\ The fact that contingency measures are a distinct and
separate requirement from and unrelated to prospective attainment
and RFP demonstrations is clearly demonstrated by the Act's planning
requirements for low moderate CO nonattainment areas. While these
areas are required to submit section 172(c)(9) contingency measures,
they are specifically exempt from the requirement to submit an
attainment (and by extension, an RFP) demonstration by section
187(a). Note that even where contingency measures and attainment
demonstrations are required, section 172(b) authorizes EPA to set
separate SIP submittal deadlines for them which shows these can (and
sometimes must) be acted on separately.
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It should also be noted that EPA routinely receives SIP submittals
that include rules, regulations, and other elements responding to
various SIP requirements such as I/M programs, new source review
programs, and reasonably available control technology rules. EPA has
traditionally acted on these elements independently.
Comment: ACLPI claims that approving contingency measures while
deferring action on the attainment and other provisions of the 1993 CO
SIP as amended stands the process on its head. ACLPI asserts that if
the CO SIP is inadequate to produce timely attainment, or fails to meet
other requirements of the Act, then EPA is obligated to disapprove the
plan and require additional control measures as part of the plan. ACLPI
concludes that EPA cannot evade this responsibility via the alleged
artifice of treating essential measures as ``contingency'' measures and
avoiding action on the attainment demonstration in the SIP itself.
Response: As discussed above, EPA believes that the section
172(c)(9) contingency measure requirement is separate and distinct from
the attainment demonstration requirement and, thus, may be acted on
independently. EPA agrees that if it finds that a SIP is inadequate to
achieve timely attainment, then EPA is obligated to disapprove the plan
and require additional control measures as necessary for timely
attainment. However, in developing its new attainment demonstration, a
state would not be compelled to choose its section 172(c)(9)
contingency measures to contribute to that demonstration. While the
Clean Air Act explicitly requires certain controls in SIP attainment
demonstrations (e.g., oxygenated gasoline, I/M programs, RACT), it also
allows states broad discretion to identify the exact controls that make
up the remaining portion of such demonstrations.29
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\29\ See, for example, section 172(c)(6) which states: Such
plan provisions shall include enforceable emission limitations, and
such other control measures, means or techniques * * * as may be
necessary or appropriate to provide for attainment of the [NAAQS] by
the applicable attainment date * * *. (Emphasis added).
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Under the circumstances posited by ACLPI, EPA could approve a
state's contingency measures as meeting the requirements of section
172(c)(9) while at the same time disapproving the plan's attainment
demonstration, assuming such an action were warranted. See section
110(k)(3). The state would then be required to develop and submit a new
attainment demonstration. In so doing, the state could choose to
include its pre-existing contingency measures as part of the attainment
demonstration, in which case it would also be required to submit new
contingency measures. On the other hand, the state would be free to
choose entirely different measures as long as they resulted in
expeditious attainment. In that event, the approved contingency
measures would remain as such.
Therefore, acting on a state's chosen contingency measures prior to
acting on the attainment demonstration does not ``stand the process on
its head;'' it merely acknowledges the state's right under the Act to
select what measures will and will not make up its control strategy and
what measures will and will not make up its section 172(c)(9)
contingency measures.
Comment: ACLPI states that the proposal violates section 110(l) of
the Act because under that section, EPA cannot approve a revision to a
plan if the revision would interfere with any applicable requirement
concerning attainment and RFP. Contrary to EPA's assertion, ACLPI
claims that the Agency's proposed action would most definitely
interfere with applicable requirements for attainment and RFP--namely,
those set forth in the FIP and, because the FIP contingency provisions
explicitly require adoption of federal measures to provide for
attainment of the CO NAAQS, these provisions are most assuredly
``applicable requirements.'' ACLPI additionally asserts that EPA's
action would interfere with those requirements by repealing them and
that EPA's action further interferes with the Act's requirement that
the state produce, and EPA approve or disapprove, a CO SIP that
provides for attainment and RFP. ACLPI also comments that EPA's
assertion that its approval of the State's contingency measures will
not interfere with RFP because the measures are only triggered if there
is a failure to make RFP is truly disingenuous. ACLPI objects to EPA's
proposing to replace a FIP which mandates RFP and timely attainment
with a plan that requires neither, and that will allegedly allow air
quality to worsen.30
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\30\ Contrary to ACLPI's comments, the FIP contingency process
does not mandate RFP. See the FIP contingency process at 56 FR 5472.
Therefore the discussion below does not address this aspect of
ACLPI's comments.
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Response: EPA refers the reader to the discussion of the
application of section 110(l) to today's action in its proposal. See 61
FR 15647. That analysis shows why the proposed action meets the
requirements of section 110(l). That discussion is expanded here.
Section 110(l), added to the CAA in the 1990 Amendments, states
that the ``Administrator shall not approve a revision of a plan if the
revision would interfere with any applicable requirement concerning
attainment and reasonable further progress * * * or any other
applicable requirement of this Act.'' As addressed below, EPA believes
that the purpose of this provision is to assure that in changing one
substantive aspect of its SIP, a state does not simultaneously impair
its compliance with another aspect of the SIP or with the statutory
mandates applicable to the aspect under revision.
In making its arguments regarding section 110(l), ACLPI attempts to
re-write the section to serve its own purposes. It is clear, however,
from the plain language of section 110(l) that that provision is
referring to noninterference with the requirements of the statute, and
not to the requirements of a FIP as ACLPI contends. The term
``applicable implementation plan,'' which includes FIPs as well as
SIPs, is specifically defined in the Act and used throughout title I.
See section 302(q); see also, e.g., section 110(c) and (n). Therefore,
had Congress intended section 110(l) to have the meaning ACLPI
suggests, it could easily have included at the end of the section the
clause ``or requirements of any applicable implementation plan.''
It is consistent with the Act as a whole for Congress to have
limited section 110(l) to statutory rather than SIP requirements.
States are at liberty to include such provisions as they see fit in
their attainment demonstrations, provided attainment is demonstrated.
They are also free to change those measures at any time, subject to
certain savings clauses, provided expeditious attainment is still
demonstrated. Congress did not in section 110(l) intend to override
this general scheme by forbidding revisions (including revocations and
replacements) of any SIP measure because it would by definition
interfere with the pre-existing requirement of that very SIP measure.
This analysis applies even more so to FIPs. In a FIP, EPA promulgates
measures for a state which may be very different from the measures that
the state would choose to implement in its own SIP. In keeping with the
overriding statutory goal of federalism in the Act, when a state does
adopt measures to replace FIP measures it should be able to select
those measures it deems most suited to the state needs, provided they
comply with the statutory requirements applicable to the element at
issue. A state should not be subject forever to the
[[Page 51609]]
identical measures in the FIP, notwithstanding its initial failure to
meet the statutory requirement giving rise to the FIP.
In contrast, ACLPI, without any textual support, attempts to turn
section 110(l) into a savings clause. In so doing, ACLPI's
interpretation would render the Act's actual savings clauses virtually
meaningless. For example, the section 110(n) savings clause keeps in
effect pre-amendment provisions of any approved or promulgated
applicable implementation plan, including a FIP, except to the extent
that EPA approves a revision.31 Using ACLPI's interpretation of
section 110(l), virtually any change to a pre-amendment SIP approved by
EPA to conform to new 1990 statutory provisions would be prohibited.
Clearly, Congress would not in one section of the statute effectively
outlaw all SIP revisions to meet the new Act's many requirements
wherever a prior SIP had addressed a similar requirement while allowing
those revisions in another section.
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\31\ See footnote 13 for the text of section 110(n). As a
savings clause, section 110(n) works in tandem with section 193, the
Act's general savings clause. Pre-amendment SIP (or FIP) provisions
remain in effect until a revision is approved by EPA, except that
discrete controls on specific sources cannot be modified unless
equivalent or greater emission reductions are assured.
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One example should suffice to demonstrate the untenability of
ACLPI's position: pre-amendment SIPs were required under pre-amended
section 110(a)(2)(B) to provide for maintenance as well as attainment
of the NAAQS. Under the 1990 Amendments, maintenance plans for
nonattainment areas are only required in connection with a
nonattainment area's redesignation to attainment. See sections
107(d)(3)(E) and 175A. Under ACLPI's interpretation, a state could
never revise its SIP to eliminate or modify its pre-amendment
maintenance plan because such an action would interfere with a
requirement of the applicable implementation plan. Clearly this result
is not what Congress intended in section 110(l).
Likewise, if ACLPI's all-encompassing interpretation of section
110(l) were to prevail, the section 193 control requirement savings
provision would make no sense. For example, if any emission limitation
for a specific source in a pre-amendment SIP (approved by EPA) were
considered an ``applicable requirement'' within the meaning of section
110(l), then any change in such a limitation would constitute
interference. If that were the case, there would be no point in
Congress' requiring that modifications to such requirements assure
equivalent or greater emission reductions. Obviously Congress intended
to allow substitution of control measures provided emissions reductions
were equivalent in such cases.
The section 110(l) admonishment that a SIP revision cannot
``interfere with any applicable requirement concerning attainment and
reasonable further progress'' or with any other ``applicable
requirement of the Act'' must be read within the broad context of the
Act rather than the narrow context of the SIP. As ACLPI has pointed
out, the primary purpose of the nonattainment provisions of the Act is
to assure attainment of the NAAQS and RFP towards attainment. Congress
in 1990 explicitly established provisions in pursuit of these goals
including contingency measures, reclassification and additional
planning requirements for attainment and RFP that are triggered by an
area's failure to attain by its attainment deadline. For CO, these
provisions lie in sections 172, 186, and 187. These statutory
requirements have been discussed extensively above and the FIP
contingency process, including the highway delay provision, serves
essentially the same purpose.32 Withdrawal of the FIP contingency
process leaves these statutory provisions fully operable and,
therefore, does not interfere with ``an applicable requirement
concerning attainment and RFP;'' to wit, the area still remains under
an applicable requirement to attain the standard and demonstrate RFP.
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\32\ This is true except for RFP. As noted before, the FIP
contingency process did not require RFP; therefore, in this regard,
the FIP contingency process does not go as far as the new statutory
scheme.
---------------------------------------------------------------------------
As stated previously, for low moderate CO areas, section 172(c)(9)
establishes the only requirement for contingency measures. As discussed
elsewhere in this notice, EPA has concluded that the State's submittals
meet the requirements of section 172(c)(9). Neither the statute nor
current EPA policy requires contingency procedures (as distinguished
from actual contingency measures) in SIPs. As noted above, the 1982 SIP
guidance, which required contingency procedures and under which the FIP
was promulgated are inconsistent with the new statutory scheme and are
no longer in effect. Therefore, withdrawal of the FIP contingency
process, in conjunction with the approval of contingency measures
consistent with the requirements of the CAA, does not conflict with
current law or EPA policy regarding contingency requirements.
To summarize, EPA believes that ACLPI's contention that section
110(l) precludes EPA from approving the State's section 172(c)(9)
contingency measures and withdrawing the FIP contingency process is
supported neither by the plain language of section 110(l) nor by the
structure of the 1990 Amendments.
Finally, even if EPA believed, which it does not, that section
110(l) encompasses purely procedural statutory requirements, EPA does
not understand how its approval of the State's contingency measures and
withdrawal of the FIP contingency process could be deemed to interfere
with the Act's requirement that the State produce, and EPA approve or
disapprove, a CO SIP that provides for attainment and RFP. EPA's action
in this notice does not in any way affect the State's obligation under
the Act to produce a CO SIP that provides for attainment and RFP, nor
does it preclude in any way EPA's action on that or any other SIP the
State has submitted or will submit.
Comment: ACLPI requests that its December 22, 1995 and March 29,
1996 notices of intent to sue EPA for failing to comply with the FIP
contingency provisions be incorporated into the record of this matter.
Response: ACLPI's two notices have been incorporated into the
docket as comments on EPA's action.
Comment: ACLPI states that rather than moving forward with adoption
of additional measures to produce attainment, the Agency is proposing
to ignore the bulk of the State's CO SIP and its SIP call and only act
on the State's contingency procedures.
Response: Approval of the State's contingency measures does not
indicate what future action EPA will or will not take on the State's
1993 CO plan, which was submitted in response to EPA's August 9, 1993
SIP call, nor does it preclude any future actions on that plan. EPA's
SIP call did not require that the State submit section 172(c)(9)
contingency measures. As discussed above, the section 179(c)(9)
requirement for specific contingency measures is a separate and
distinct provision of the Act that may be approved separately from
other elements of the CO plan.
Comment: ACLPI claims that the extension and reclassification
procedures in the 1990 Amendments assume that EPA will first review,
and approve or disapprove moderate area CO SIPs before considering
reclassification and attainment deadline extensions, and that EPA has
flouted those requirements here.
[[Page 51610]]
Response: EPA does not agree that reclassification of an area to
serious under the Act requires prior review and approval or disapproval
of a moderate area plan.33 Once an attainment date has passed, EPA
must determine, based solely on ambient air quality data, whether an
area has failed to attain without regard to whether EPA has approved a
plan for the area. Once the Agency makes this finding, the area is
reclassified to serious by operation of law. See section 186(b)(2). As
a result of its recent reclassification to serious, the Maricopa area
is now required to submit a new serious area CO plan by February 28,
1998. See footnote 3. Because the Phoenix area experienced violations
of the CO standard in 1995, it did not qualify for an extension of its
attainment date; therefore, CAA requirements for extension of the
attainment date are not relevant.
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\33\ Note that for low moderate areas the only plan submittals
required by the CAA are section 172(c)(9) contingency measures and a
section 187(a) emissions inventory. Therefore Congress could not
have intended that EPA act on attainment plans for these areas
before considering an attainment deadline extension or
reclassification.
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B. Comments by the Maricopa Association of Governments, May 9, 1996
Comment: MAG made three technical comments correcting certain
references in the proposal:
Page 15747, second column, first partial paragraph: The
appropriate reference is ``See 1993 CO Plan Addendum, Appendix, Exhibit
4, memo re: Re-calculation of Carbon Monoxide Emission Reductions for
the Committed Measures.''
Page 15750, first column, first full paragraph, third
sentence: The phrase ``1996 and 1997'' is inconsistent with the data
provided and should be replaced with ``1995 through 1997.''
Page 15750, first column, second full paragraph, third
sentence: The phrase ``1996 and 1997'' is inconsistent with the data
provided and should be replaced with ``1995 through 1997.''
Response: EPA notes the first correction.
EPA states in the proposal that ``data indicat[e] that emission
increases of 17 tpd from VMT growth are expected to occur in 1996 and
1997.'' EPA arrived at this number by subtracting the expected CO 1997
emissions level (without post 1995 I/M 240), 530 tpd, from the expected
CO 1995 emission level (without post 1995 I/M 240), 513 tpd. Both the
530 tpd figure and the 513 tpd figure are calculated for December 1997
and 1995, respectively. EPA's statement in the proposal is, therefore,
correct: an emission increase of 17 tpd is expected in the two year
period (characterized as 1996 and 1997 in the proposal) from December
1995 through December 1997. The same reasoning applies to MAG's third
correction.
III. Final Actions
EPA is approving into the Arizona SIP for the Phoenix CO
nonattainment area the State's enhanced remote sensing program and
traffic diversion measure as meeting the requirements of sections 110
and 172(c)(9) of the CAA.
Based on the approval of the State's contingency measures, EPA is
withdrawing the federal contingency process for the Phoenix CO
nonattainment area. Specifically, the Agency is deleting the phrase
``After December 31, 1991 for the Maricopa CO nonattainment area or''
from the contingency provisions at 56 FR 5470, column 2 (February 11,
1991). This deletion leaves the federal contingency process in place
for the Pima County CO nonattainment area. EPA also is withdrawing the
list of highway projects potentially subject to delay that was proposed
on June 28, 1993 during the partial implementation of the FIP
contingency process at that time. 58 FR 34547.
EPA is taking these actions because, with its final approval of the
State's section 172(c)(9) measures, the federal process will become
unnecessary for attainment and maintenance of the CO NAAQS in the
Phoenix area. To leave the federal process in place would complicate
air quality planning within Maricopa County and would be unnecessarily
redundant. In addition, giving preference to the State's measures is
consistent with the Clean Air Act's intent that states have primary
responsibility for the control of air pollution within their borders.
See CAA sections 101(a)(3) and 107(a).
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for a revision
to the state implementation plan shall be considered separately in
light of specific technical, economic and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small business, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000.
SIP approvals under sections 110 and subchapter I, part D of the
Clean Air Act, do not create any new requirements but simply approve
requirements that the State is already imposing. Similarly, withdrawal
of the FIP contingency process does not impose any new requirements.
Therefore, because the federal SIP approval and FIP withdrawal does not
impose any new requirements, the Administrator certifies that they do
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal/state relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 2 U.S.C. 1501-1571, 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 costs to State, local, or tribal
governments in the aggregate; or to the private sector, of $100 million
or more. Under Section 205, EPA must select the most cost-effective and
least burdensome alternative that achieves that 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 this rule.
EPA has determined that the approval action promulgated does not
include a federal mandate that may result in estimate costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector.
[[Page 51611]]
Through submission of these SIP revisions, the State and any
affected local or tribal governments have elected to adopt the program
provided for under sections 110 and 182 of the CAA. These rules may
bind State, local, and tribal governments to perform certain actions
and also require the private sector to perform certain duties. To the
extent that the rules being approved today will impose any mandate upon
the State, local, or tribal governments either as the owner or operator
of a source or as a regulator, or would impose any mandate upon the
private sector, EPA's action will impose no new requirements; such
sources are already subject to these requirements under State law.
Similarly, EPA's withdrawal of the FIP contingency process will not
impose any new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action. EPA has also determined that this action does not include
a mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector. This federal action approves pre-existing requirements under
State or local law, imposes no new Federal requirements, and withdraws
other federal requirements applicable only to EPA. Accordingly, no
additional costs to State, local or tribal governments, or to the
private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) added by the Small Business Regulatory
Enforcement Fairness Act of 1996, EPA submitted 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 General
Accounting Office prior to publication of the rule in today's Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
E. Petitions for Judicial Review
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 December 2, 1996. 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 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations.
Dated: September 26, 1996.
Carol M. Browner,
Administrator.
For the reasons set forth in this preamble, 40 CFR part 52 is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart D--Arizona
2. Section 52.120 is amended by adding paragraphs (c)(83) and
(c)(85) to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(83) Plan revisions were submitted on December 11, 1992, by the
Governor's designee.
(i) Incorporation by reference.
(A) State Transportation Board of Arizona.
(1) Resolution to Implement a Measure in the Maricopa Association
of Governments 1992 Carbon Monoxide Contingency Plan, adopted on
November 20, 1992.
(85) Plan revisions were submitted on April 4, 1994, by the
Governor's designee.
(i) Incorporation by reference.
(A) Arizona Revised Statutes.
(1) House Bill 2001, Section 27: ARS 49-542.01(E) approved by the
Governor on November 12, 1993.
[FR Doc. 96-25400 Filed 10-2-96; 8:45 am]
BILLING CODE 6560-50-P
