[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 60001-60013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29396]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[AZ-001-BU; FRL-5917-4]
Clean Air Act Reclassification; Arizona-Phoenix Nonattainment
Area; Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finding that the Phoenix nonattainment area (Maricopa
[[Page 60002]]
County, Arizona) has not attained the 1-hour ozone national ambient air
quality standard (NAAQS) by the applicable attainment date in the Clean
Air Act (CAA) for moderate ozone nonattainment areas, November 15,
1996. EPA is also denying Arizona's application for a one-year
extension of the November 15, 1996 attainment date for the Phoenix
area. The finding and denial are based on EPA's review of monitored air
quality data from 1994 through 1996 for compliance with the 1-hour
ozone NAAQS. As a result of the finding and denial, the Phoenix ozone
nonattainment area will be reclassified by operation of law as a
serious ozone nonattainment area on the effective date of this action.
The effect of the reclassification will be to continue progress toward
attainment of the 1-hour ozone NAAQS through the development of a new
State implementation plan (SIP), due 12 months from the effective date
of this action, addressing attainment of that standard by November 15,
1999.
EFFECTIVE DATE: December 8, 1997.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air
Planning, AIR-2, Air Division, U.S. Environmental Protection Agency,
Region 9, 75 Hawthorne Street, San Francisco, California 94105, (415)
744-1248.
SUPPLEMENTARY INFORMATION:
I. Background
Under sections 107(d)(1)(C) and 181(a) of the Clean Air Act (CAA),
the Phoenix metropolitan area was designated nonattainment for the 1-
hour ozone NAAQS and classified as ``moderate.'' See 56 FR 56694
(November 6, 1991). Moderate nonattainment areas were required to show
attainment by November 15, 1996. CAA section 181(a)(1).
Pursuant to section 181(b)(2)(A) of the CAA, EPA has the
responsibility for determining, within six months of an area's
applicable attainment date, whether the area has attained the 1-hour
ozone NAAQS. 1 Under section 181(b)(2)(A), if EPA finds that
an area has not attained the 1-hour ozone NAAQS, it is reclassified by
operation of law to the higher of the next higher classification or to
the classification applicable to the area's design value at the time of
the finding. CAA section 181(b)(2)(B) of the Act requires EPA to
publish a notice in the Federal Register identifying areas which failed
to attain the standard and therefore must be reclassified by operation
of law.
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\1\ On July 18, 1997 (62 FR 38856), EPA revised the ozone NAAQS
to establish a 8-hour standard; however, in order to ensure an
effective transition to the new 8-hour standard, EPA also retained
the 1-hour NAAQS for an area until such time as it determines that
the area meets the 1-hour standard. See revised 40 CFR 50.9 at 62 FR
38894. As a result of retaining the 1-hour standard, CAA part D,
subpart 2, Additional Provisions for Ozone Nonattainment Areas,
including the reclassification provisions of section 181(b), remain
applicable to areas that are not attaining the 1-hour standard.
Unless otherwise indicated, all references in this notice are to the
1-hour ozone NAAQS.
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If a state does not have the clean data necessary to show
attainment of the NAAQS, it may apply, under CAA section 181(a)(5) of
the CAA, for a one-year attainment date extension. Issuance of an
extension is discretionary, but EPA can exercise that discretion only
if the state has: (1) complied with the requirements and commitments
pertaining to the applicable implementation plan for the area, and (2)
the area has measured no more than one exceedance of the ozone NAAQS at
any monitoring site in the nonattainment area in the year preceding the
extension year.
A complete discussion of the statutory provisions and EPA policies
governing findings of whether an area failed to attain the ozone NAAQS
and extensions of the attainment date can be found in the proposal for
this action at 62 FR 46229 (September 2, 1997).
II. Proposed Action
On September 2, 1997, EPA proposed to find that the Phoenix ozone
nonattainment area failed to attain the 1-hour ozone NAAQS by the
applicable attainment date. 62 FR 46229. The proposed finding was based
upon ambient air quality data from the years 1994, 1995, and 1996.
These data showed that the 1-hour ozone NAAQS of 0.12 parts per million
had been exceeded on average more than one day per year over this
three-year period. Attainment of the 1-hour NAAQS is demonstrated when
an area averages one or less days per year over the standard during a
three-year period. 40 CFR 50.9 and Appendix H. EPA also proposed that
the appropriate reclassification of the area was to serious, based on
the area's 1994-1996 design value of 0.132 ppm. For a complete
discussion of the Phoenix ozone data and method of calculating both the
average number of days over the ozone standard and the design value,
see 62 FR 46230.
EPA also proposed to deny the State of Arizona's application for a
one-year extension of the moderate area ozone attainment date for the
Phoenix nonattainment area. The proposed denial was based, in part, on
evidence that the Phoenix area is not close to attainment of the 1-hour
ozone standard and will need additional controls to attain, and, in
part, on the area's failure to meet the second statutory criterion for
granting an extension. That criterion requires that the area have no
more than one exceedance of the ozone NAAQS in 1996. CAA section
181(a)(5)(B). The Fountain Hills special purpose monitor in the eastern
part of the Phoenix nonattainment area recorded 4 exceedances of the 1-
hour ozone NAAQS in 1996. For a complete discussion of the basis for
the proposed denial of the extension, including EPA's policies related
to the use of special purpose monitoring data, see 62 FR 46231.
Finally, EPA proposed to require submittal of the serious area SIP
revisions no later than 12 months from the effective date of the area's
reclassification.
III. Response to Comments
EPA received twenty-one comment letters in response to its
September 2, 1997 proposal. Comments were received from Arizona
Governor Jane Dee Hull, the Arizona legislative leadership, U.S.
Senator Jon Kyl and U.S. Representative John Shadegg, the Arizona
Department of Environmental Quality (ADEQ), the Maricopa County
Environmental Services Department (MCESD), several local elected
officials, numerous business groups, and one environmental group.
EPA wishes to express its appreciation to each of these individuals
and organizations for taking the time to comment on the proposal. Each
raised important issues to which EPA welcomes the opportunity to
respond.
As described above, EPA's proposal was composed of three elements:
(1) a finding of failure to attain by the statutory deadline of
November 15, 1996; (2) a denial of the State's application for a one-
year extension of the attainment date; and (3) a 12-month schedule for
submittal of the revised SIP.
Most commenters emphasized Arizona's leadership in the development
and implementation of effective ozone controls (many of which are only
mandated for serious or severe ozone nonattainment areas) and its
demonstrated commitment to making real improvements in air quality.
Among the controls cited are: the State's premier vehicle emissions
inspection program (which includes the only regulatory use of remote
sensing), Maricopa County's Travel Reduction Program, the extension of
the Federal Reformulated Gasoline (RFG) program to the Phoenix area,
the State's adoption
[[Page 60003]]
of its own, more stringent ``Clean Burning Gasoline'' program as well
as numerous other control programs such as the voluntary lawnmower
replacement program, mandatory conversion of government fleets to
alternative fuels, and incentives for conversion of private fleets to
alternative fuels and for the construction of public fueling
facilities. The City of Phoenix also listed a number of innovative air
quality measures that it has implemented, and finally, APS noted the
voluntary efforts of business and community groups including the
Business for Clean Air Challenge program.
EPA is very aware of Arizona's leadership and noted the State's
dedicated efforts to adopt and implement controls to attain the ozone
standard in its proposal. See 62 FR 46232. The Agency would like to
make clear that in taking this action it is neither ignoring Arizona's
exemplary efforts to adopt controls to improve its air quality nor
minimizing Arizona's commitment to clean air. Both are evidenced by the
numerous controls listed above and the State's continuing efforts to
evaluate its ozone situation.
As stated above, neither the determination of attainment/
nonattainment nor the determination of whether an area met the
statutory extension criterion relating to exceedances of the ozone
NAAQS in 1996 allows for reviewing an area's efforts to adopt controls.
This exercise involves little more than a rote review of available
ambient air quality data. While EPA may desire more flexibility in this
situation to reward Arizona for its demonstrated leadership, the Agency
has not been granted that flexibility under the Clean Air Act.
For the most part, commenters made similar, and frequently
identical, comments. The issues raised relate principally to (1) the
adverse impacts of the reclassification to serious, (2) the retention
of the 1-hour ozone NAAQS in EPA's recent action revising the ozone
NAAQS, (3) the denial of the request for a one-year attainment date
extension, (4) EPA's compliance with the Regulatory Flexibility Act,
and (5) proposed measures to mitigate the impact of the
reclassification. Many of the comments received did not directly
address EPA's proposals and instead focused on issues that have been
the subject of earlier EPA rulemakings (e.g., retention of 1-hour ozone
standard), outside of EPA's regulatory authority in this action (e.g.,
the reclassification to serious), or unrelated to the action (e.g.,
approval of Arizona's excess emissions rule).
In this preamble, EPA is responding to the most significant
comments received and has provided more detailed and complete answers
to all comments received in the Response to Comments (RTC) document
which is part of the technical support document (TSD) for this
rulemaking. Copies of the TSD as well as other documents in the docket
for this rulemaking may be obtained from the contact listed at the
beginning of this notice.
A. Comments Related to the Proposed Finding of Failure to Attain
Comment
ADEQ and others note that Arizona has implemented most of the
mandatory control programs for both serious and severe ozone
nonattainment areas and the only remaining requirements are for more
stringent new source review (NSR) and the federal clean fleets program.
Because the imposition of these serious area requirements will do
little to improve air quality in the Phoenix metropolitan area, the
commenters contend that the reclassification is effectively punitive.
Response: Serious ozone nonattainment areas (like all other
classifications) are subject to both specific requirements for
mandatory control programs and more general requirements for attainment
and reasonable further progress. EPA agrees that the Maricopa area
already has in place most of the mandatory control programs required
for serious area. The State, however, has yet to address the
requirements for attainment by 1999 in CAA section 181(c)(2)(A) or the
9 percent rate-of-progress requirement in section 181(c)(2)(B). Both
these requirements are very likely to require measures beyond the
specific control programs mandated by a serious area classification,
resulting in improved air quality for the Phoenix area.
The classification structure of the Act is a clear statement of
Congress's belief that the later attainment deadlines afforded higher-
classified and reclassified areas require compensating increases in the
stringency of controls. The reclassification provisions of the Clean
Air Act are a reasonable mechanism to assure continued progress toward
attainment of the health-based ambient air quality standards when areas
miss their attainment deadlines and are not punitive.
Comment: ADEQ, MCESD, and others asserted that the schedules for
planning and attainment under a reclassification almost certainly
guarantee failure because it would be difficult to complete the needed
technical analysis within the proposed 12-month SIP submittal schedule
and then to implement any additional controls needed before the 1999
ozone season.
Response: EPA agrees that the short time available for planning and
attainment between the moderate area deadline of November 15, 1996 and
the serious area deadline of November 15, 1999 makes completing the
required technical analysis and adopting additional controls difficult.
The State, however, has already adopted or is in the process of
adopting a number of controls that will contribute substantial emission
reductions in 1997 or beyond. These controls include the federal
reformulated gasoline program for 1997, Arizona's Clean Burning
Gasoline program for 1998 and later, improvements to the vehicle
emission inspection program, and an industrial solvent cleaning rule
(currently schedule for adoption in early 1998). In addition, ADEQ
continues to evaluate and refine the Urban Airshed modeling performed
for the draft Voluntary Early Ozone Plan (VEOP). All these actions give
Arizona a head start in meeting the serious area requirements.
In proposing a 12-month schedule for submittal of the revised plan,
EPA understood that this was an ambitious schedule but stated that it
believed ``a 12-month schedule is appropriate because the attainment
date for serious areas, November 15, 1999, is little more than 2 years
away and the State will need to expedite adoption and implementation of
controls to meet that deadline.'' See 62 FR 42633. EPA is therefore
retaining the 12-month schedule for submittal of the SIP revisions
needed to meet the serious area requirements.
Comment: Commenters argue that because stationary sources are not
the cause of the ozone problem in Phoenix, the more stringent new
source review (NSR) requirements that come with the serious area
classification will do little to improve the air quality and are thus
merely punitive.
Response: Phoenix is not being singled out for more stringent NSR
requirements than any other similarly-classified area in the Country
such as Atlanta, Washington, D.C. and San Diego. The more stringent NSR
provisions (which principally affect which sources are subject to major
source NSR) are required by statute of all serious areas without
exception. This tightening of control requirements as areas move up the
classification ladder and are given more time to attain is part of the
basic Clean Air Act scheme for ozone attainment. In establishing this
scheme, Congress determined that the more stringent NSR provision were
reasonable for serious areas and, since
[[Page 60004]]
Congress did not provide relief from these requirements for
reclassified areas, it also determined that they were reasonable
without exception for moderate areas being reclassified to serious.
B. Comments Related to Retention of the 1-Hour Ozone Standard Comment
A number of comments were received on the legality of EPA's
decision, having promulgated an 8-hour NAAQS, to defer revocation of
the 1-hour ozone NAAQS.
Response: The continued applicability of the 1-hour standard until
EPA determines that the applicable area is meeting that standard is not
the subject of this rulemaking. This rulemaking only concerns the
finding that the Phoenix area failed to attain the 1-hour standard and
the denial of the State's request for an extension of the attainment
deadline for that standard. The issue of the continued applicability of
the 1-hour standard was part of the rulemaking in which EPA promulgated
an 8-hour ozone standard. 62 FR 38856 (July 18, 1997). That rulemaking
proceeding, not this one concerning Phoenix, was the appropriate forum
in which to raise issues concerning the continued applicability of the
1-hour standard.
C. Comments Related to the Proposal to Deny Arizona's Application for a
One-Year Extension of the Attainment Date
Almost all comments received opposed EPA's proposed denial of the
State's application for a one-year extension of the November 15, 1996
attainment date. Before responding to the specific comments raised with
regard to this issue, some introductory remarks are in order. In
general, the commenters misperceive the nature of section 181(a)(5) of
the CAA that provides:
Upon application of any State, the Administrator may extend for
1 additional year (hereinafter referred to as the ``Extension
Year'') the [attainment deadline] if--
(A) the State has complied with all requirements and commitments
pertaining to the area in the applicable implementation plan, and
(B) no more than 1 exceedance of the national ambient air
quality standard level for ozone has occurred in the area in the
year preceding the Extension Year.
No more than 2 one-year extensions may be issued under this
paragraph for a single nonattainment area. Emphasis added.
Many commenters erroneously assume that if the conditions in
subparagraphs A and B above are met, then EPA must automatically grant
the extension. However, by its terms, section 181(a)(5) is ultimately
discretionary. See 62 FR 46230. While EPA cannot grant an extension
request if the conditions are not met, it is not required to do so even
if they are.
While EPA believes, as discussed at length below, that the second
condition has not been met, the Agency has ample justification for
denying the request even if that were not the case. In its proposal,
EPA articulated two reasons to deny the extension request. The first--
the failure to meet the second extension criterion--will be discussed
further below. The second--that the Phoenix area was not close to
attainment--went virtually unaddressed by most the commenters. As EPA
stated in its notice:
[T]he underlying premise of an extension is that an area is close to
attainment and already has in place the control strategy needed for
attainment. All evidence in front of the Agency indicates that the
Phoenix area is not close to attainment of the 1-hour ozone standard
and that, despite the State's dedicated efforts to adopt and
implement controls, the area will need to continue its on going
planning and control efforts. Thus, even if the Phoenix area met the
statutory requirements for granting an extension, EPA believes that
such an extension would not be appropriate at this time. Emphasis
added. 62 FR 46232.
While several commenters questioned EPA's conclusion that the
Phoenix area was not close to attainment, their comments (which are
addressed later) did not persuade EPA that its conclusion was wrong. In
fact, an equal number of commenters tacitly agreed with EPA's position
by arguing the need for long-term measures to solve Phoenix's ozone
problem and the impossibility of showing attainment by 1999.
The central thrust of the comments EPA received on the extension
issue is that EPA improperly included data from special purpose
monitors (SPMs) 2 in its calculation of whether the Phoenix
area experienced no more than one exceedance of the ozone NAAQS in
1996, the year preceding the extension year, and had EPA properly
excluded the data, then the Phoenix area would have been granted an
extension. For the reasons discussed below, EPA believes that it was
entitled to rely on that data in making this assessment. However, even
if the SPM data were excluded from the calculation, the Agency believes
that it can properly exercise its discretion to deny the State's
extension request.
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\2\ In the Phoenix area, MCESD operates eight ozone monitors in
its official or state or local air monitoring station/national air
monitoring station (SLAMS/NAMS) network. ADEQ and MCESD operate a
total of nine ozone special purpose monitors in the area.
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As documented below and in Appendix B to the TSD, since at least
1989, Arizona has maintained an inadequate official monitoring network
and has consistently declined to convert the SPMs (which meet all of
EPA's technical criteria) to cure those deficiencies. If it had to rely
solely on this inadequate monitoring network, it would be impossible
for EPA to determine whether the Phoenix area had one or fewer
exceedances of the ozone standard in 1996 because the official network
does not adequately represent Phoenix's air quality. Only when the data
from the SPMs are combined with those of the official network is it
possible to make this determination and with the SPM data it is clear
that the Phoenix area is not close to attaining the ozone 1-hour NAAQS.
Modeling conducted by the State confirms this conclusion. Thus the
underlying intent of the statute's extension provision has not been
met. In acknowledging this reality, EPA can appropriately exercise its
discretion to deny the extension request.
Comment: ADEQ contends that in a letter dated June 6, 1997, to the
Clerk of the United States Court of Appeals for the Third Circuit,
EPA's legal counsel noted that EPA was not required to consider non-
network (i.e., not part of the SLAMS/NAMS network) data showing
violations of the NAAQS. Letter, June 6, 1997, from Lois J. Schiffer,
Assistant Attorney General, Environmental Natural Resources Division
(by Greer S. Goldman), U.S. Department of Justice (DOJ) to P. Douglas
Sisk, Clerk, United States Court of Appeals for the Third Circuit
(``3rd Circuit letter''). ADEQ also cites Southwestern Pennsylvania
Growth Alliance v. Browner, 121 F.3d 106 (3rd Cir. 1997), to support
its position that EPA in the past has excluded exceedance data from its
evaluation of a redesignation request because the data came from
monitors that were not part of the SLAMS network.
Response: In the 3rd Circuit letter, EPA actually concluded that
the Agency's regulation on the use of SPM data, 40 CFR 58.14, does not
authorize it to take into account the State's intended use of SPM data
that otherwise meet that regulation's requirements when deciding
whether to use it in an ozone redesignation action.3 As a
result, under EPA's regulation, all available SPM data that meet the
minimum federal siting and quality assurance requirements in 40 CFR
Part 58 must be used in making regulatory decisions
[[Page 60005]]
such as redesignations and reclassifications.
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\3\ This letter was signed by DOJ on behalf of EPA and
accurately reflects the Agency's position on the use of SPM data.
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Southwestern Pennsylvania Growth Alliance involves EPA's
disapproval of the Commonwealth of Pennsylvania's request to
redesignate the Pittsburgh-Beaver Valley nonattainment area to
attainment for ozone. The disapproval was based on 1995 violations of
the ozone standard recorded on the area's SLAMS/NAMS network. 61 FR
19193 (May 1, 1996) The Southwestern Pennsylvania Growth Alliance
(SWPGA), an organization of major manufacturers and local governments
in the Pittsburgh-Beaver Valley region, sought review of EPA's
disapproval by the Third Circuit Court of Appeals. A full history of
EPA's actions on Pennsylvania's redesignation request can be found in
the TSD for today's notice.
Among the issues raised by SWPGA was the use of the 1995 SLAMS/NAMS
data. SWPGA argued that EPA acted contrary to the Act by considering
the 1995 ozone exceedances because they occurred after the EPA's 18
month deadline to act on the State's redesignation request which had
been submitted in November, 1993. In an effort to clarify certain
statements made in its brief, EPA identified certain instances where it
had not used available data when acting on a redesignation request. In
one instance, the San Francisco-Bay Area redesignation to attainment
for ozone, EPA had excluded SPM data from its redesignation evaluation.
The other instance, LaFourche Parish, Louisiana, involved only SLAMS/
NAMS data. 121 F.3d at 115.
The court then directed EPA to address a number of questions,
including why it is lawful for EPA to exclude consideration of data
from monitors that are not part of the SLAMS network. The 3rd Circuit
letter cited by ADEQ is EPA's response to the court on this issue. As
stated in this letter (p. 4):
For data from monitors that are not part of the SLAMS network
required by [40 CFR] Part 58 [EPA's monitoring regulation], EPA
regulations provide that EPA will exclude the data when they do not
meet the terms of 40 CFR 58.14. That section provides, in relevant
part:
Any ambient air quality monitoring station other than a SLAMS or
[prevention of significant deterioration] station from which the
State intends to use the data as part of a demonstration of
attainment or nonattainment or in computing a design value for
control purposes of the [NAAQS] must meet the requirements for SLAMS
described in section 58.22 and, after January 1, 1983, must also
meet the requirements for SLAMS as described in section 58.13 and
appendices A and E to this part.
* * * In at least one case, EPA has interpreted section 58.14 to
make a state's intent a factor in determining whether data from
special purpose monitors that otherwise meet the requirements of
section 58.14 may be excluded from consideration in an ozone
redesignation action. However, EPA has recently evaluated that
interpretation and concluded that it is not authorized by section
58.14.
The passage supports the conclusion that the only circumstance under
which SPM data may be excluded is if the data do not meet the siting
and quality assurance requirements of Part 58.
The statement that ADEQ cites from the 3rd Circuit letter comes
from the letter's concluding paragraph which discusses the specific
facts of Southwestern Pennsylvania Growth Alliance. All monitoring data
under consideration in that case came from SLAMs monitors; there were
no SPM data at issue in EPA's decision to deny the redesignation
request. In this context, it is clear that the 3rd Circuit letter does
not indicate that EPA may ignore SPM data:
It should be noted, however, that the issue of whether EPA has
discretion to decide if data from outside the official monitoring
network should be used in redesignation decisions is not at issue in
this case, where all monitored violations of the ozone standard were
recorded at official network monitors. And even if EPA were required
to consider non-network data showing violations, EPA would not be
authorized to ignore violations at official network monitors when
determining whether an area has attained the standard and is
entitled to redesignation. 3rd Circuit letter (p. 4).
ADEQ also cites the court's opinion to support its contention that
EPA has excluded SPM data in the past. While the court noted that
``[i]n at least one case, the EPA has excluded exceedance data from its
evaluation of a redesignation request because the data came from
monitors that were not part of the [SLAMS] network * * *,'' it went on
to state in the same paragraph:
Assuming arguendo that the EPA's exclusion of non-SLAMS
exceedance data violates the EPA's duty not to redesignate an area
that fails to attain the NAAQS, the EPA's prior disregard of this
duty did not relieve the EPA of its obligation to act correctly in
other cases. Emphasis added. 121 F.3d at 115.
Based on its interpretation of Section 58.14, and the facts of the
Phoenix air quality situation discussed below, EPA believes that it is
acting correctly in not excluding the SPM data from consideration in
the Phoenix extension decision.
Comment: Numerous commenters questioned the timing of EPA's
issuance of the Memorandum, ``Agency Policy on the Use of Special
Purpose Monitoring Data,'' dated August 22, 1997, by John Seitz, EPA
Director of the Office of Air Quality Planning and Standards (``SPM
policy'' or ``SPM memo''), noting that it was issued just 3 days in
advance of EPA's announcement that it was proposing to find that the
Phoenix area had failed to attain the ozone standard and to deny the
State's extension request. The commenters contend that, absent this
``ad hoc policy,'' EPA would not have been able to propose to deny
Arizona's one-year extension request based upon the use of the special
purpose monitor data that EPA has heretofore rejected.
Commenters state that the information submitted to EPA's AIRS and
additional data submitted to EPA by ADEQ demonstrate that, had the
Fountain Hills special purpose monitor data properly been excluded, the
criterion in section 181(a)(5)(B) would have been satisfied. Commenters
note that during the year preceding the extension year (1996), there
was only one exceedance of the ozone NAAQS at a SLAMS or NAMS monitor
(the exceedance at the Mesa SLAMS monitor on July 23, 1996, when a
reading of 0.127 ppm ozone was recorded) and that this was the only
ozone exceedance recorded during the entire calendar year of 1996 on
any official SLAMS or NAMS monitor.
Response: The proper treatment of SPM data has been growing
national interest for some time, increasing the need for EPA to issue
national guidance. As noted in the SPM memo (p. 1):
[OAQPS] has received several inquiries from Regional Offices into
how special purpose monitoring data can be used in making a variety
of regulatory decisions such as designations, classifications, and
attainment date extensions. [It] also [has] a final ruling from the
U.S. Court of Appeals for the Third Circuit which supports the U.S.
EPA denial of Pennsylvania's redesignation request for the
Pittsburgh-Beaver Valley ozone nonattainment area. In light of these
questions, legal developments, and the new [NAAQS] implementation
directives, [OAQPS] believe[s] it is necessary to discuss the use of
all publicly available special purpose monitoring data for all
regulatory applications.
Further impetus for the SPM policy was the revised ozone NAAQS
under which EPA must determine within 90 days of their July 18, 1997
publication which areas of the Country are attaining the 1-hour
standard. National guidance is clearly essential to assure consistency
in the use of SPM data for these determinations.
The interest in and the need for a clear statement of the Agency's
policy on SPM data was thus far broader than the Phoenix situation. The
Agency did not, as the commenters imply, create an
[[Page 60006]]
``ad hoc'' policy simply to justify its proposed denial of Arizona's
request for an extension but rather it articulated a national policy
applicable to all areas of the Country.
The commenters, however, wrongly assert that EPA needed the August
22, 1997 SPM policy to justify its denial of Arizona's extension
request. Even without a formal written policy statement, EPA believes
that it has sound reasons to use the SPM data in this case, including
the inadequate SLAMS/NAMS network in Phoenix, the discrepancies in
measured air quality between the official monitors and the SPMs, and
its long-established regulations governing the use of SPM data.
Moreover, the June 6, 1997 letter to the Third Circuit and the
Court's subsequent July 28, 1997 decision in Southwestern Pennsylvania
Growth Alliance, both available long before EPA's announcement, may be
read to imply that EPA must consider available SPM data in making
regulatory decisions such as granting extension requests. As noted in
the SPM memo (p. 2):
The Third Circuit Court decision supports the view that the EPA may
not redesignate an area from nonattainment to attainment if the EPA
knows that the area is not meeting the ozone NAAQS. Specifically, if
the U.S. EPA knows of a violation or violations of the ozone NAAQS
by either examining information within the AIRS or data from other
sources and these data meet all 40 CFR Part 58 requirements, the
U.S. EPA cannot determine that an area is attaining the NAAQS.
This logic applies equally to extension requests: if EPA knows of
more than one exceedance in an area in the year preceding the extension
year by either examining information within AIRS or data from other
sources and these data meet all 40 CFR part 58 requirements, EPA cannot
grant an extension of the attainment date.
Finally, EPA notes that it informed Arizona of its intention to use
the SPM data in advance of its August 25, 1997 announcement. In a
presentation to the May 19, 1997 meeting of the Arizona air quality
monitoring network stakeholders,4 EPA stated that the
current Maricopa SLAM network was deficient and that it could not,
without inclusion of the SPM sites, support the granting of an
extension. At the June 9, 1997 meeting, EPA distributed the 3rd Circuit
letter and noted that EPA would soon be formally clarifying its use of
SPM data. EPA also made a series of courtesy calls to state and local
agencies the week before its announcement to inform them that it would
be proposing to find that Phoenix had failed to attain and that it was
proposing to deny the extension request based in part on the SPM data.
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\4\ ADEQ convened a series of facilitated stakeholder meetings
in May through July, 1997 to discuss the ambient air quality
monitoring network in Maricopa County. Participants included MCESD,
other local agencies, industry representatives, and environmental
groups. EPA also participated in the meetings.
---------------------------------------------------------------------------
Comment: Several commenters contend that the use of the SPM data in
this instance is inconsistent with actions taken in other nonattainment
areas where SPM data were excluded for the purposes of making similar
determinations and conclude that if EPA had followed its earlier
precedents then data from the Fountain Hills special purpose monitor
would not have been used to deny the extension request. ADEQ also notes
that the SPM memo implicitly concedes that Agency policy up to the date
of the memorandum had been to reject exactly the kind of monitoring
data on which EPA based its decisions to propose to deny the one-year
extension. Commenters view EPA's refusal to follow prior precedent and
disregard special purpose monitor data in this situation as a simple
case of disparate treatment.
Response: EPA's previous record on the use of SPM data contains
numerous examples of instances where the Agency has used SPM data in
making designation and classification decisions. While commenters note
one instance where EPA did not use available SPM data (the Beaumont-
Port Arthur reclassification), and the SPM memo notes one other (the
San Francisco-Bay Area redesignation), there are many more instances
where the Agency has used SPM data to either designate or classify an
area, including the original classification of the Phoenix area as
moderate for ozone and the PM-10 nonattainment designations for the
Bullhead City and Payson, Arizona areas. See 56 FR 56694, 56703
(November 6, 1991) and 58 FR 67334, 67336 (December 21, 1993),
respectively. Outside of Arizona, EPA has used SPM data to redesignate
to nonattainment portions of White Top Mountain in New York and Smyth
County, Virginia. See 56 FR 56694, 56704.
Many commenters cited EPA's 1996 action to correct the Beaumont/
Port Arthur, Texas area ozone classification from serious to moderate
as an example of EPA's inconsistent use of SPM data. 61 FR 14496 (April
2, 1996). In this case, data from an SPM had originally been utilized
to classify the Beaumont/Port Arthur area as a serious ozone
nonattainment area. Based on additional information provided by Texas,
EPA corrected the reclassification under CAA section 110(k)(6) from
serious to moderate, stating that the data from the SPM should not have
been used for classification purposes because, among other reasons, the
SPM was not a part of the state monitoring network, the data from the
monitor were utilized for research purposes, and the data were not
reported to EPA's Aerometric Information Retrieval System (AIRS).
Commenters contend that in these three circumstances the Phoenix
situation closely parallels Beaumont-Port Arthur's; therefore, EPA
should treat the Phoenix SPM data in a like manner by excluding it. In
response, EPA notes that it has clarified its policy on the treatment
of SPM data since the April 2, 1996 action on Beaumont-Port Arthur,
resulting in all three of these circumstances no longer being grounds
for excluding SPM data.5
---------------------------------------------------------------------------
\5\ This policy clarification is clearly permissible. Moreover,
even if it were a change or revision in policy, rather than a
clarification, it would also clearly be permissible. It is well
established that an agency may modify or reverse its interpretation
over time provided the agency supplies a reasoned basis for the
change. See e.g., Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 863
(1984); Motor Vehicle Manufacturers Assoc. of the U.S., Inc. v.
State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42
(1983)(``we fully recognize that ``[regulatory] agencies do not
establish rules of conduct to last forever' * * * and that an agency
must be given ample latitude to ``adapt their rules and policies to
the demands of changing circumstances.' ''); Good Samaritan Hospital
v. Shalala, 113 S. Ct. 2151, 2161 (1993) (``[A]n administrative
agency is not disqualified from changing its mind * * *''). EPA
provided that reasonable basis in the SPM memo.
---------------------------------------------------------------------------
Even if EPA's regulations and policy were that valid SPM data could
be excluded in some cases (which they are not), EPA believes that there
are two compelling reasons to use the SPM data in the Phoenix case.
These reasons are (1) the inadequacy of the Maricopa ozone monitoring
network and (2) the large discrepancy between air quality when measured
on Maricopa's SLAMS/NAMS network and when measured on the SLAMS/NAMS/
SPM network.
Since 1989, EPA has consistently found that Maricopa's existing
ozone SLAMS/NAMS network is inadequate to meet the monitoring
objectives of Part 58, more specifically the requirement for a site
measuring maximum concentration. A complete history of EPA's
evaluations of the Maricopa County monitoring network can be found in
Appendix D to the TSD. Numerous evaluations, including the recent VEOP,
have indicated that maximum ozone concentrations are occurring in the
rapidly-developing eastern-northeastern portion of
[[Page 60007]]
Maricopa County.6 While there are SLAMS sites located
throughout the central part of the Phoenix metropolitan area, there are
no SLAMS sites on the eastern edge of the Phoenix area. EPA has been
urging the County for nearly a decade to locate an ozone SLAMS monitor
in this area. The County has responded by locating numerous SPM sites
there (including the Fountain Hills SPM site) but has yet to convert
any of those sites into SLAMS or NAMS.
---------------------------------------------------------------------------
\6\ This is borne out by the fact that all but one of the 1996
exceedances (the one at the Mesa SLAMS monitor) occurred at monitors
to the east or northeast of the metropolitan area.
---------------------------------------------------------------------------
Based solely on this inadequate network, it is not possible for EPA
to accurately determine the area's compliance with the second statutory
criterion for extensions. Such a determination can only be made based
on data from a complete network that accurately reflects air quality in
the area; therefore, even if the SPM data were excluded from the
calculation, the Agency believes that it can properly exercise its
discretion to deny the State's extension request.
The inadequate SLAMS network has led to a troubling discrepancy
between the air quality measured on the SLAMS/NAMS network and that
network when augmented by the SPM sites. This is illustrated by Table 1
below.
Table 1.--Air Quality Comparison Between the SLAMS/NAMS Network and
SLAMS/NAMS/SPM Network
[Maricopa County, 1994-1996]
------------------------------------------------------------------------
SLAMS/NAMS/
SPM network
SLAMS/NAMS (w/o Mt.
network Ord or Blue
Point)
------------------------------------------------------------------------
Number of Ozone Exceedance.................... 10 44
Number of Ozone Violations.................... 2 13
Number of Days over the Ozone Standard........ 6 21
------------------------------------------------------------------------
Clearly had EPA ignored the SPM data in Maricopa County, it would
have greatly underestimated the severity of the area's air quality and
inappropriately downplayed the impact of that air quality on public
health.
Given the significant probability that the Phoenix area would
eventually face reclassification to serious even if it were granted an
extension, EPA questions the actual benefit of an extension to the
area. The commenters have made extensive comments on the adverse
impacts of reclassification, among them the short-term planning and
attainment deadlines facing newly serious areas and the imposition of
the more stringent NSR provisions. An extension would only compound the
problem of the short time frames while simply deferring the more
stringent NSR provisions for a short time. Hence, even if it were
within its discretion to grant an extension, EPA stands by its belief
that an extension is not appropriate at this time.
Comment: A number of commenters noted that the Phoenix area had not
experienced any ozone exceedances in 1997 and asserted that this
indicates that the area's ozone problem has been solved. Noting that
the number of ozone exceedances peaked in 1995 and decreased in 1996,
the County stated that the ``reality check'' provided by the ambient
data indicates a trend contradictory to EPA's contention that the
Phoenix area is not close to attainment.
Response: The clean ozone air quality that the Phoenix area has
experienced this year is very good news. These lower ozone readings are
due in some part to the introduction of reformulated gasoline and the
continuing implementation of other control programs such as the State's
premier vehicle emission inspection program.
Unfortunately, a single year of ozone data cannot be used to
conclude that an area is close to attaining the 1-hour ozone standard.
The Phoenix area has experienced another year (1989) in which ozone
exceedances were not recorded, only to have the subsequent years show
widespread violations.
Ozone levels are related to both emission levels and meteorology.
As a result of this meteorological component, ozone levels can vary
greatly from year to year. The 1-hour ozone standard accounts for the
weather's effect by evaluating compliance over a three-year period
(that is, an area can average no more than 1 exceedance per year over a
three-year period). 40 CFR 50.9 and part 50, Appendix H.
There is some reason to believe that favorable weather patterns
this year have also contributed to Phoenix's low ozone readings. In
fact, 1997 has been an unusually good year for air quality throughout
the West. All areas in EPA Region 9 (with the exception of San Diego
and the Imperial Valley) have shown decreases in second-high ozone
levels from 1996 to 1997, many greater than Phoenix's. None of these
areas has introduced substantial new emission reduction programs, like
Phoenix, that would account for these decreases.
D. Comments Related to the Regulatory Flexibility Act Requirements
Comment: A number of commenters claimed that EPA failed to comply
with the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) in its proposal.7 The commenters claim that EPA's
certification that its action would not have a significant economic
impact on a substantial number of small entities is incorrect.
---------------------------------------------------------------------------
\7\ SBREFA amended the Regulatory Flexibility Act (RFA), 5
U.S.C. 601 et seq.
---------------------------------------------------------------------------
In support of their argument, the commenters state that small
businesses that emit 50 tpy or more of VOC will become subject to
reasonably available control technology (RACT) requirements, more
stringent NSR requirements, and the Title V operating permit program as
a result of the reclassification to serious and describe in more detail
the potential adverse impacts of these requirements on small
businesses.8
---------------------------------------------------------------------------
\8\ EPA notes that businesses that emit 100 tpy or more are
already subject to some of these requirements under the moderate
area classification.
---------------------------------------------------------------------------
The commenters further assert that EPA's reliance on Mid-Tex
Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) for
not preparing a regulatory flexibility analysis is misplaced. Finally,
as an aside, the commenters note that Mid-Tex was decided a decade
before Congress enacted SBREFA and more significantly,
[[Page 60008]]
SBREFA imposes outreach requirements on EPA and OSHA which are imposed
on no other government agencies (citing 5 U.S.C. 609(b) and (d)).
Response: The Regulatory Flexibility Act provides that, whenever an
agency is required to publish a general notice of rulemaking for a
proposed rule, the agency must prepare an initial regulatory
flexibility analysis for the proposed rule unless the head of the
agency certifies that the rule ``will not, if promulgated, have a
significant economic impact on a substantial number of small entities''
(section 605(b)). EPA certified the proposed determination that the
Phoenix area did not attain the 1-hour ozone standard by the attainment
date and the proposed denial of the attainment date extension
request,9 based on its conclusion that the rule would not
establish requirements applicable to small entities and therefore would
not have a significant economic impact on small entities within the
meaning of the RFA. EPA is reaffirming that certification in this final
action.
---------------------------------------------------------------------------
\9\ Commenters only addressed the potential impact on small
businesses of the reclassification (which is based on the
determination of nonattainment and the denial of the extension
request), and not the potential impacts of the SIP submittal
schedule. Therefore, the latter action is not discussed further in
response to this comment.
---------------------------------------------------------------------------
As described elsewhere in this notice, CAA section 181(b) requires
EPA to determine whether an area has attained a NAAQS by the applicable
attainment deadline. If EPA finds that the area has not attained, the
section generally provides that the area ``shall be reclassified by
operation of law'' (section 181(b)(2)(A)). The section requires EPA to
publish a notice in the Federal Register identifying each area the
Agency has determined to be in nonattainment and ``identifying'' the
resulting reclassification of the area (section 181(b)(2)(B)).
While determinations that trigger a reclassification do not
themselves establish regulatory requirements applicable to small (or
large) entities, they may, as noted by the commenters, trigger the
application to small entities of regulatory requirements established by
other rulemakings under the Clean Air Act (and conceivably other
statutes). EPA, however, has concluded that the word ``impact'' as used
in the RFA does not include regulatory requirements that the rule does
not establish, but may trigger under the terms of other rules or
statutory provisions. For the reasons discussed at length in the TSD,
EPA believes that the RFA's text, legislative history and case law,
including Mid-Tex, all make clear that RFA analysis is limited to the
requirements of the rule being promulgated.
A more detailed discussion of this issue may be found in the TSD
for this rulemaking.
E. Comments Related to Mitigating the Adverse Impacts of
Reclassification
Many commenters suggested several steps that could be taken to
mitigate the adverse impacts of the reclassification to serious. While
EPA will briefly respond to most of the suggestions here, many involve
issues that are being dealt with in forums other than this action. EPA
will continue to work with interested parties in Arizona to address
these issues in those other forums. EPA also received questions
regarding the implementation of NSR and Title V requirements. Those
questions are addressed in the TSD.
Comment: Commenters requested that EPA suspend further enforcement
of the 1-hour ozone NAAQS in the Phoenix Metropolitan area by amending
its ``implementation policy'' for the revised 8-hour ozone NAAQS.
Commenters contend that EPA has the flexibility and authority to do so
under the ``implementation policy'' by citing the policy's statements
that implementation of the new 8-hour ozone NAAQS should be ``carried
out to maximize common sense, flexibility, and cost effectiveness.'' 62
FR 38421 (July 18, 1997).
Response: The document referred to and cited by the commenters as
the ``Implementation Policy,'' 62 FR 38421 (July 18, 1997) is a
memorandum to the EPA Administrator entitled ``Implementation of
Revised Air Quality Standards for Ozone and Particulate Matter''
(``President's Memorandum'') signed by President Clinton for the
implementation of the revised ozone and particulate matter standards.
Attached to that memorandum is a strategy, ``Implementation Plan for
Revised Air Quality Standards'' (``Implementation Plan'') outlining the
steps for implementing these standards. EPA is currently developing
guidance and proposed rules consistent with the President's Memorandum.
EPA is committed to the goals of maximizing common sense, flexibility,
and cost effectiveness in implementing the revised NAAQS.
EPA's action reclassifying Phoenix as a serious ozone nonattainment
area is in no way inconsistent with those goals. Furthermore, it is
consistent with the continued applicability of the 1-hour standard and
subpart 2 as provided for in EPA's rulemaking on the ozone NAAQS. See
62 FR 38856, 38873. To the extent that the comments concern that issue,
they are not appropriately raised in this rulemaking.
Neither the provisions of 40 CFR 50.9, as revised (62 FR 38856,
38894), nor any other statutory or regulatory provisions, provide EPA
with the authority to suspend enforcement of the 1-hour NAAQS in
Phoenix. Moreover, as noted earlier, the Phoenix area has not complied
with some of the most significant serious area requirements (e.g., the
9 percent rate of progress requirement). Finally EPA believes that
complying with those requirements will have a positive, not
detrimental, effect on the ability of Phoenix to comply with the 8-hour
standard. Additional comments related to this point are addressed in
the TSD.
Comment: The commenters requested that EPA execute an agreement
with the State of Arizona to act upon submitted SIP revisions within a
fixed period of time based upon priorities identified by the State and
to set a schedule for acting on future SIP revisions.
Response: EPA Region 9 receives hundreds of requests each year to
revise federally-enforceable SIPs from over 40 different state and
local air pollution agencies. These include requests to modify
inventories, attainment demonstrations, and administrative, permit, and
prohibitory regulations. Given the available resources, Region 9 is
unable to review and act on each of these requests as quickly as it
would like. As a result, the Agency relies on the state and local
agencies to prioritize submittals so that the most important ones to
the state and local agencies can be acted on first. Region 9 does
expect to take final action soon on several revisions submitted by
Maricopa County and has recently contacted the Arizona air pollution
agencies to request that they identify those submittals that need to be
acted quickly in order to issue Title V permits or for other purposes.
Region 9 will process submittals in the priority order requested by
these agencies.
Comment: Commenters requested that EPA approve EPA Arizona
Administrative Code (A.A.C.) R18-2-310 (The Arizona Excess Emissions
Rule) as a revision to the SIP.
Response: This comment is closely related to a lawsuit brought by
the Arizona Mining Association with regard to EPA's interim approval of
Arizona's Title V operating permit program on October 30, 1996 (61 FR
55910). The parties involved in the suit have had constructive
exchanges, which EPA expects to continue, on the appropriate treatment
of the Arizona Excess Emissions Rule during the settlement discussions.
[[Page 60009]]
Comment: Commenters request that EPA adopt realistic, streamlined
national Prevention of Significant Deterioration (PSD) and New Source
Review (NSR) regulations.
Response: EPA recognizes that its current regulations governing the
new source review programs mandated by both parts C (PSD) and D (NSR)
of Title I of the Clean Air Act are a source of concern for many
people. On July 23, 1996, EPA proposed major revisions (known as the
NSR reform proposal) to its PSD and NSR regulations. 61 FR 38250. EPA
has received many comments on its proposal and is currently carefully
reviewing and considering these comments as it develops the final rule.
EPA's goal for this final rule is to simplify its NSR and PSD
regulations consistent with the Clean Air Act requirements for those
programs.
Comment: Commenters request that EPA adopt a regulatory affirmative
defense for sources with potential VOC emissions of from 50 to 100 tons
per year that will apply to enforcement of the NSR requirements in
ozone nonattainment areas that meet certain criteria.
Response: It appears that the commenters are attempting to ease the
perceived regulatory burden that will be imposed on sources that emit
between 50 and 100 tons of VOC per year as a result of the
reclassification. EPA will study the proposal, but its initial response
is that the commenters' suggested approach is not the most effective
means for addressing their underlying concerns. EPA believes it may be
constructive to engage in a dialogue regarding possible mechanisms for
limiting sources' potential to emit to below the thresholds that
trigger NSR. However, where a source's actual emissions exceed the
major source threshold or the source is unable to reduce its potential
to emit below the major source threshold, the source is subject to
major NSR.
Comment: Commenters request that EPA continue to expeditiously act
to approve the Arizona Clean Burning Gasoline Program.
Response: EPA has been very pleased to support Arizona's efforts to
bring reformulated gasoline to the Phoenix area. In addition to
approving the Governor's request to join the federal program and the
State's request for lower RVP limits, the Agency participated in the
development of the new CBG rules in order to correct any approval
problems early in the process. EPA is now working closely with ADEQ to
act on the recent submittal of the CBG rules. This work is among EPA's
highest priorities.
F. Other Comments
Comment: Senator Kyl and Representative Shadegg commented that by
using data collected from 1994 through 1996 as the basis for its
decision, EPA has not taken into account the significant and positive
effects of the RFG program and other actions taken by the State of
Arizona to reduce ozone pollution and that this results in an
inaccurate and unwarranted reclassification of Phoenix to serious. They
comment further that this violates principles in President's July 18,
1997 memorandum that ``implementation of the air quality standards is
to be carried out to maximize common sense, flexibility, and cost
effectiveness.''
Response: EPA agrees that the 1994-1996 data do not reflect the
1997 implementation of the RFG program and that this program will have
a continuing positive effect on ozone levels in the Phoenix area. EPA,
however, is constrained by statute from considering 1997 data in its
finding of failure to attain and denial of the extension request.
CAA section 181(b)(4) requires EPA to determine if an area has
attained ``as of the attainment date.'' For Phoenix, the attainment
date is November 15, 1996, and under long-established procedures,
determining attainment as of that date requires reviewing data from the
three years immediately preceding that date or 1994 through 1996. 40
CFR 50.9 and part 50, Appendix H.
The criterion for extensions in CAA section 181(a)(5)(B) is that
``no more than one exceedance of the [ozone standard] has occurred in
the area in the year preceding the Extension Year.'' The extension year
is 1997, thus the ``year preceding'' is 1996.
VI. Final Action
EPA is finding that the Phoenix ozone nonattainment area did not
attain the ozone NAAQS by November 15, 1996, the CAA attainment date
for moderate ozone nonattainment areas. EPA is also denying Arizona's
application for a one-year extension of the attainment date. As a
result of this finding and denial, the Phoenix ozone nonattainment area
is reclassified by operation of law as a serious ozone nonattainment
area on the effective date of today's action and the submittal of the
serious area SIP revisions will be due no later than 12 months from
this effective date. The requirements for this SIP submittal are
established in CAA section 182(c) and applicable EPA guidance.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future action. Each finding of
failure to attain, request for an extension of an attainment date, and
establishment of a SIP submittal date shall be considered separately
and shall be based on the factual situation of the area under
consideration and in relation to relevant statutory and regulatory
requirements.
VI. Administrative Requirements
A. Executive Order (E.O.) 12866
Under E.O. 12866, (58 FR 51735, October 4, 1993), EPA is required
to determine whether today's action is a ``significant regulatory
action'' within the meaning of the E.O., and therefore should be
subject to OMB review, economic analysis, and the requirements of the
E.O. See E.O. 12866, sec. 6(a)(3). The E.O. defines, in sec. 3(f), a
``significant regulatory action'' as a regulatory action that is likely
to result in a rule that may meet at least one of four criteria
identified in section 3(f), including,
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that neither the finding of failure to attain it
is making today, the denial of Arizona's request for a one-year
extension of the attainment data, nor the establishment of SIP
submittal schedule would result in any of the effects identified in
E.O. 12866 sec. 3(f). As discussed in the response to comments above
and in more detail in the TSD, findings of failure to attain under
section 181(b)(2) of the Act are based upon air quality considerations,
and reclassifications must occur by operation of law in light of
certain air quality conditions. These findings do not, in and of
themselves, impose any new requirements on any sectors of the economy.
In addition, because the statutory requirements are clearly defined
with respect to the differently classified areas, and because
[[Page 60010]]
those requirements are automatically triggered by classifications that,
in turn, are triggered by air quality values, findings of failure to
attain and reclassification cannot be said to impose a materially
adverse impact on State, local, or tribal governments or communities.
The same is true of the determination not to grant a one-year
extension, in light of the fact that this determination is also based
in part on air quality values. Similarly, the establishment of new SIP
submittal schedules merely establishes the dates by which SIPs must be
submitted, and does not adversely affect entities.
B. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 601 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 economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
As discussed in the response to comments above and in more detail
in the TSD, a finding of failure to attain (and the consequent
reclassification by operation of law of the nonattainment area) under
section 181(b)(2) of the Act, a denial of a one-year extension request,
and the establishment of a SIP submittal schedule for a reclassified
area, do not, in-and-of-themselves, directly impose any new
requirements on small entities. See Mid-Tex Electric Cooperative, Inc.
v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (agency's certification need
only consider the rule's impact on entities subject to the requirements
of the rule). Instead, this rulemaking simply makes a factual
determination and establishes a schedule to require States to submit
SIP revisions, and does not directly regulate any entities. Therefore,
pursuant to 5 U.S.C. 605(b), EPA reaffirms its certification made in
the proposal (62 FR 46233) that today's final action will not have a
significant impact on a substantial number of small entities within the
meaning of those terms for RFA purposes.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, when EPA promulgates ``any general notice of proposed
rulemaking that is likely to result in promulgation of any rule that
includes any Federal mandate that may result in the expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more'' in any one year. A ``Federal
mandate'' is defined, under section 101 of UMRA, as a provision that
``would impose an enforceable duty'' upon the private sector or State,
local, or tribal governments'', with certain exceptions not here
relevant. Under section 203 of UMRA, EPA must develop a small
government agency plan before EPA ``establish[es] any regulatory
requirements that might significantly or uniquely affect small
governments''. Under section 204 of UMRA, EPA is required to develop a
process to facilitate input by elected officers of State, local, and
tribal governments for EPA's ``regulatory proposals'' that contain
significant Federal intergovernmental mandates. Under section 205 of
UMRA, before EPA promulgates ``any rule for which a written statement
is required under [UMRA sec.] 202'', EPA must identify and consider a
reasonable number of regulatory alternatives and either adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule, or explain why a different
alternative was selected.
Generally, EPA has determined that the provisions of sections 202
and 205 of UMRA do not apply to this decision. Under section 202, EPA
is to prepare a written statement that is to contain assessments and
estimates of the costs and benefits of a rule containing a Federal
Mandate ``unless otherwise prohibited by law.'' Congress clarified that
``unless otherwise prohibited by law'' referred to whether an agency
was prohibited from considering the information in the rulemaking
process, not to whether an agency was prohibited from collecting the
information. The Conference Report on UMRA states, ``This section [202]
does not require the preparation of any estimate or analysis if the
agency is prohibited by law from considering the estimate or analysis
in adopting the rule.'' 141 Cong. Rec. H3063 (Daily ed. March 13,
1995). Because the Clean Air Act prohibits, when determining whether an
area attained the ozone standard or met the criteria for an extension,
from considering the types of estimates and assessments described in
section 202, UMRA does not require EPA to prepare a written statement
under section 202. Although the establishment of a SIP submission
schedule may impose a federal mandate, this mandate would not create
costs of $100 million or more, and therefore, no analysis is required
under section 202. The requirements in section 205 do not apply because
those requirements for rules ``for which a written statement is
required under section 202 * * *.''
With regard to the outreach described in UMRA section 204, EPA
discussed its proposed action in advance of the proposal with State
officials.
Finally, section 203 of UMRA does not apply to today's action
because the regulatory requirements finalized today--the SIP submittal
schedule--affect only the State of Arizona, which is not a small
government under UMRA.
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended 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 section 804(2) of the
APA as amended.
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 January 5, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone.
Dated: October 27, 1997.
Harry Seraydarian,
Acting Regional Administrator.
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
[[Page 60011]]
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 81.303 is amended by revising the table for Arizona--
Ozone, for the Phoenix Area to read as follows:
Sec. 81.303 Arizona
* * * * *
Arizona-Ozone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date Type Date Type
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Phoenix Area:
Maricopa County (part).............. 11/15/90 Nonattainment............................ 12/8/97 Serious.
The Urban Planning Area of the
Maricopa Association of
Governments is bounded as
follows:
1.Commencing at a point
which is at the
intersection of the eastern
line of Range 7 East, Gila
and Salt River Baseline and
Meridian, and the southern
line of Township 2 South,
said point is the
southeastern corner of the
Maricopa Association of
Governments Urban Planning
Area, which is the point of
beginning;
2. Thence, proceed northerly
along the eastern line of
Range 7 East which is the
common boundary between
Maricopa and Pinal
Counties, as described in
Arizona Revised Statute
Section 11-109, to a point
where the eastern line of
Range 7 East intersects the
northern line of Township 1
North, said point is also
the intersection of the
Maricopa County Line and
the Tonto National Forest
Boundary, as established by
Executive Order 869 dated
July 1, 1908, as amended
and showed on the U.S.
Forest Service 1969
Planimetric Maps;
3. Thence, westerly along
the northern line of
Township 1 North to
approximately the southwest
corner of the southeast
quarter of Section 35,
Township 2 North, Range 7
East, said point being the
boundary of the Tonto
National Forest and Usery
Mountain Semi-Regional
Park;
4. Thence, northerly along
the Tonto National Forest
Boundary, which is
generally the western line
of the east half of
Sections 26 and 35 of
Township 2 North, Range 7
East, to a point which is
where the quarter section
line intersects with the
northern line of Section
26, Township 2 North, Range
7 East, said point also
being the northeast corner
of the Usery Mountain Semi-
Regional Park;
5. Thence, westerly along
the Tonto National Forest
Boundary, which is
generally the south line of
Section 19, 20, 21 and 22
and the southern line of
the west half of Section
23, Township 2 North, Range
7 East, to a point which is
the southwest corner of
Section 19, Township 2
North, Range 7 East;
6. Thence, northerly along
the Tonto National Forest
Boundary to a point where
the Tonto National Forest
Boundary intersects with
the eastern boundary of the
Salt River Indian
Reservation, generally
described as the center
line of the Salt River
Channel;
7. Thence, northeasterly and
northerly along the common
boundary of the Tonto
National Forest and the
Salt River Indian
Reservation to a point
which is the northeast
corner of the Salt River
Indian Reservation and the
southeast corner of the
Fort McDowell Indian
Reservation, as shown on
the plat dated July 22,
1902, and recorded with the
U.S. Government on June 15,
1902;
[[Page 60012]]
8. Thence, northeasterly
along the common boundary
between the Tonto National
Forest and the Fort
McDowell Indian Reservation
to a point which is the
northeast corner of the
Fort McDowell Indian
Reservation;
9. Thence, southwesterly
along the northern boundary
of the Fort McDowell Indian
Reservation, which line is
a common boundary with the
Tonto National Forest, to a
point where the boundary
intersects with the eastern
line of Section 12,
Township 4 North, Range 6
East;
10. Thence, northerly along
the eastern line of Range 6
East to a point where the
eastern line of Range 6
East intersects with the
southern line of Township 5
North, said line is the
boundary between the Tonto
National Forest and the
east boundary of McDowell
Mountain Regional Park;
11. Thence, westerly along
the southern line of
Township 5 North to a point
where the southern line
intersects with the eastern
line of Range 5 East which
line is the boundary of
Tonto National Forest and
the north boundary of
McDowell Mountain Regional
Park;
12. Thence, northerly along
the eastern line of Range 5
East to a point where the
eastern line of Range 5
East intersects with the
northern line of Township 5
North, which line is the
boundary of the Tonto
National Forest;
13. Thence, westerly along
the northern line of
Township 5 North to a point
where the northern line of
Township 5 North intersects
with the easterly line of
Range 4 East, said line is
the boundary of Tonto
National Forest;
14. Thence, northerly along
the eastern line of Range 4
East to a point where the
eastern line of Range 4
East intersects with the
northern line of Township 6
North, which line is the
boundary of the Tonto
National Forest;
15. Thence, westerly along
the northern line of
Township 6 North to a point
of intersection with the
Maricopa-Yavapai County
line, which is generally
described in Arizona
Revised Statute Section 11-
109 as the center line of
the Aqua Fria River (Also
the north end of Lake
Pleasant);
16. Thence, southwesterly
and southerly along the
Maricopa-Yavapai County
line to a point which is
described by Arizona
Revised Statute Section 11-
109 as being on the center
line of the Aqua Fria
River, two miles southerly
and below the mouth of
Humbug Creek;
17. Thence, southerly along
the center line of Aqua
Fria River to the
intersection of the center
line of the Aqua Fria River
and the center line of
Beardsley Canal, said point
is generally in the
northeast quarter of
Section 17, Township 5
North, Range 1 East, as
shown on the U.S.
Geological Survey's Baldy
Mountain, Arizona
Quadrangle Map, 7.5 Minute
series (Topographic), dated
1964;
18. Thence, southwesterly
and southerly along the
center line of Beardsley
Canal to a point which is
the center line of
Beardsley Canal where it
intersects with the center
line of Indian School Road;
[[Page 60013]]
19. Thence, westerly along
the center line of West
Indian School Road to a
point where the center line
of West Indian School Road
intersects with the center
line of North Jackrabbit
Trail;
20. Thence, southerly along
the center line of
Jackrabbit Trail
approximately nine and
three-quarter miles to a
point where the center line
of Jackrabbit Trail
intersects with the Gila
River, said point is
generally on the north-
south quarter section line
of Section 8, Township 1
South, Range 2 West;
21. Thence, northeasterly
and easterly up the Gila
River to a point where the
Gila River intersects with
the northern extension of
the western boundary of
Estrella Mountain Regional
Park, which point is
generally the quarter
corner of the northern line
of Section 31, Township 1
North, Range 1 West;
22. Thence, southerly along
the extension of the
western boundary and along
the western boundary of
Estrella Mountain Regional
Park to a point where the
southern extension of the
western boundary of
Estrella Mountain Regional
Park intersects with the
southern line of Township 1
South;
23. Thence, easterly along
the southern line of
Township 1 South to a point
where the south line of
Township 1 South intersects
with the western line of
Range 1 East, which line is
generally the southern
boundary of Estrella
Mountain Regional Park;
24. Thence, southerly along
the western line of Range 1
East to the southwest
corner of Section 18,
Township 2 South, Range 1
East, said line is the
western boundary of the
Gila River Indian
Reservation;
25. Thence, easterly along
the southern boundary of
the Gila River Indian
Reservation which is the
southern line of Sections
13, 14, 15, 16, 17, and 18,
Township 2 South, Range 1
East, to the boundary
between Maricopa and Pinal
Counties as described in
Arizona Revised Statues
Section 11-109 and 11-113,
which is the eastern line
of Range 1 East;
26. Thence, northerly along
the eastern boundary of
Range 1 East, which is the
common boundary between
Maricopa and Pinal
Counties, to a point where
the eastern line of Range 1
East intersects the Gila
River;
27. Thence, southerly up the
Gila River to a point where
the Gila River intersects
with the southern line of
Township 2 South; and
28. Thence, easterly along
the southern line of
Township 2 South to the
point of beginning which is
a point where the southern
line of Township 2 South
intersects with the eastern
line Range 7 East
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[FR Doc. 97-29396 Filed 11-5-97; 8:45 am]
BILLING CODE 6560-50-P
