[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Rules and Regulations]
[Pages 63456-63458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31278]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ033-0007; FRL-5928-3]
Approval and Promulgation of Implementation Plans; Arizona--
Maricopa County CO Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action constitutes EPA's response to the Ninth Circuit
Court of Appeals' July 31, 1997 opinion in DiSimone versus Browner, No.
96-70974 (9th Cir. July 31, 1997). As a result of the opinion, EPA is
restoring the contingency procedures in the carbon monoxide (CO)
federal implementation plan (FIP) for the Maricopa County, Arizona
nonattainment area (Phoenix) that it promulgated in accordance with
Agency guidance issued prior to the 1990 Clean Air Act Amendments
(CAAA). EPA is also withdrawing its approval of two contingency
measures submitted by the State as revisions, pursuant to the 1990
CAAA, to the CO state implementation plan (SIP) for Phoenix.
EFFECTIVE DATE: This action is effective as of December 1, 1997.
FOR FURTHER INFORMATION CONTACT: Jan Taradash, Office of Regional
Counsel (ORC-2), U.S. Environmental Protection Agency, 75 Hawthorne
Street, San Francisco, California, 94105-3901, (415) 744-1335 or Sara
Schneeberg, Office of General Counsel, U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460, (202) 260-5145.
SUPPLEMENTARY INFORMATION:
I. Background
In March 1990, the United States Court of Appeals for the Ninth
Circuit vacated EPA's 1988 approval of the State of Arizona's SIP for
the Phoenix CO nonattainment area and directed the Agency to promulgate
a Federal implementation plan (FIP) under section 110(c) of the Clean
Air Act (CAA) that included contingency procedures in accordance with
its then existing guidance.1 Delaney versus EPA, 898 F.2d
687 (9th Cir. 1990). In November 1990, the 1990 Amendments to the Clean
Air Act (CAAA) were enacted which comprehensively revised the statute,
including the provisions dealing with nonattainment areas and the
deadlines and requirements for achieving attainment. EPA then filed in
the Ninth Circuit a motion to recall the Delaney mandate, arguing, in
part, that promulgation of the FIP under the pre-amended statute was
inconsistent with both the structure and substantive provisions of the
new law. EPA also argued that section 193, the general savings clause,
of the 1990 Amendments did not preserve the Agency's pre-amendment FIP
obligation.2 The Ninth Circuit denied EPA's motion without
opinion and EPA subsequently promulgated the FIP contingency
procedures. 56 FR 5458 (Feb. 11, 1991).
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\1\ The CAA prior to the 1990 Amendments contained no statutory
provision for contingency procedures or measures. As a result of
this absence, EPA developed the guidance pursuant to which the FIP
was promulgated. 46 FR 7187 (January 22, 1981).
\2\ Section 193 provides, in pertinent part:
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.
EPA did not advance in its motion an argument concerning the
effect of section 193 on any subsequent replacement of the FIP
contingency procedures with approved state measures.
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In 1994 Arizona submitted to EPA contingency measures (an enhanced
remote sensing program and a traffic diversion measure) adopted to
satisfy the requirements of section 172(c)(9), a new provision added to
the CAA by the 1990 Amendments.3 In 1996, EPA approved these
State measures as meeting the requirements of sections 110(a) and
172(c)(9) of the CAA and withdrew the FIP contingency procedures. 61 FR
51599 (Oct. 3, 1996). The Arizona Center for Law in the Public Interest
(ACLPI) subsequently filed a petition for review of this action in the
Ninth Circuit and the Court issued its opinion on July 31, 1997.
DiSimone versus Browner, No. 96-70974 (9th Cir. July 31, 1997).
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\3\ Section 172(c)(9) requires SIPs to provide for the
implementation of specific measures to be undertaken if the area
fails to make reasonable further progress (RFP) or attain the
national ambient air quality standard (NAAQS) by the applicable
attainment date.
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In its petition, ACLPI challenged EPA's action on several grounds,
including that: (1) EPA violated section 193 by approving measures that
did not insure equivalent or greater emission reductions than the FIP,
and (2) the contingency measures approved by EPA did not comply with
the requirements of section 172(c)(9). On these grounds, petitioners'
requested that the court vacate EPA's approval of the state's
contingency measures and withdrawal of the FIP contingency procedures,
and direct EPA to restore the FIP contingency procedures.
In its opinion, the Court found that EPA's replacement of the
court-ordered federal contingency provisions with state provisions
under the new statutory scheme violated the Delaney mandate. Slip op.
at 9023. The Court further found that EPA was precluded from litigating
in DiSimone the issue of whether the amended Act authorized EPA's
withdrawal of the FIP contingency procedures and approval of the
State's contingency measures in their place. Slip op. at 9025. To
support that conclusion, the Court reasoned that:
[T]he issue presented in EPA's motion to recall the mandate [in
Delaney] and the issue presented in this case [DiSimone] are indeed
identical. The arguments advanced by EPA in both cases were that
requiring the continued adherence to pre-Amendment guidelines would
thwart Congressional intent and be inconsistent with the
reclassification scheme introduced by the 1990 amendments. In
addition, both the motion to recall the mandate and EPA's brief in
this case addressed the General Savings Clause * * * as not
applicable to the court's order in Delaney. Slip op. at 9026.
The Court also stated that the 9th Circuit panel denying EPA's
motion to recall the mandate ``decided against all of the arguments
presented in EPA's motion because such a determination was necessary to
deny the motion.'' Slip op. at 9027. The Court did not, however,
indicate what specific relief sought by ACLPI it was granting. Instead,
it merely granted the petition ``for the foregoing reasons.'' (Emphasis
added). Slip op. at 9028.
Because of the Court's exclusive reliance on Delaney, the
restoration of the FIP contingency procedures is clearly compelled by
its granting of ACLPI's petition. As to the State's contingency
measures, nowhere in the opinion does the Court address the issue of
whether the State's measures meet the requirements of sections 110(a)
and 172(c)(9) of the CAA.4 Thus there is no indication as to
whether EPA's approval of these measures could remain in place in light
of the restoration of the FIP.
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\4\ In fact, ACLPI did not raise in its petition for review any
issues relating to EPA's approval of the contingency measures under
section 110(a).
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However, throughout the opinion there is evidence that the gravamen
of the Court's objection to EPA's action was the substitution of the
State's contingency measures for the FIP
[[Page 63457]]
contingency procedures.5 Consequently EPA has concluded that
the Court viewed the Agency's withdrawal of the FIP contingency
procedures and approval of the State's contingency measures as
interdependent. Because EPA does not intend to seek a rehearing from
the Ninth Circuit, the Agency believes that, for the purpose of this
action, it has no choice but to withdraw its approval of the State's
measures in addition to restoring the FIP contingency
procedures.6
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\5\ For example: ``We hold that EPA acted in disobedience of an
order of this court in withdrawing the federal plan and approving a
state plan in its place.* * *'' Slip op. at 9019; ``Here, the issue
to be foreclosed is whether, in light of the 1990 amendments to the
Clean Air Act, EPA was permitted to approve a state implementation
plan in place of the federal plan ordered by the Delaney panel.''
Slip op. at 9025.
\6\ It should be noted that those measures no longer serve a
contingency function because they were implemented when the Phoenix
area was automatically reclassified from a ``moderate'' to a
``serious'' CO nonattainment area upon EPA's finding that the area
had failed to meet the statutory attainment deadline of December 31,
1995. See 61 FR 39343 (July 29, 1996) and footnote 3. As a result of
the reclassification, the State is required to submit a serious area
SIP revision for Phoenix by February 28, 1998 that includes new
contingency measures pursuant to CAA section 172(c)(9).
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II. Final Actions
A. Rule
For the foregoing reasons, EPA is taking final action to restore
the federal contingency procedures for the Phoenix CO nonattainment
area. Specifically, the Agency is restoring the phrase ``After December
31, 1991 for the Maricopa CO nonattainment area or'' to the contingency
provisions at 56 FR 5471, col. 2 (Feb. 11, 1990). EPA is also, for the
reasons discussed above, withdrawing its approval of the State's
contingency measures as meeting the requirements of sections 110(a) and
172(c)(9) of the CAA.
At the time EPA approved the State's contingency measures and
withdrew the FIP contingency procedures, the Agency also withdrew the
list of highway projects potentially subject to delay that the Agency
proposed on June 28, 1993 during the partial implementation of the FIP
at that time. 58 FR 34547.7 EPA is today reaffirming the
withdrawal of that list because it is no longer current. During any
future implementation of the FIP contingency procedures, EPA will
propose an updated list of projects potentially subject to delay.
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\7\ For the full text of the FIP contingency procedures, see 56
FR 5471-5472.
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B. Effective Date and Notice and Comment Under the Administrative
Procedures Act
Today's action will be effective on December 1, 1997. Under the
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), agency
rulemaking may take effect before 30 days after the date of publication
in the Federal Register if an agency has good cause to mandate an
earlier effective date. In today's action, EPA is simply implementing
administratively a result that the Ninth Circuit Court of Appeals
effectuated in its July 31, 1997 opinion in DiSimone v. Browner.
Therefore an effective date prior to 30 days after the date of
publication is warranted.
Similarly, while this document constitutes final agency action, EPA
finds good cause to forego prior notice and comment under the APA, 5
U.S.C. 553(b). Notice and comment are unnecessary because no EPA
judgment is involved in restoring the FIP contingency procedures and
withdrawing the Agency's approval of the State's contingency measures
pursuant to the Ninth Circuit's opinion in DiSimone.
III. 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 (RFA), 5 U.S.C. 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
on small entities of any rule subject to the notice and comment
rulemaking requirements under the good cause exception. Because this
action is exempt from such requirements, as described above, it is not
subject to the RFA.
C. Unfunded Mandates
Under sections 202, 203 and 205 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 the objectives of the rule
and is consistent with statutory requirements. Section 203 requires EPA
to establish a plan for informing and advising any small governments
that may be significantly or uniquely impacted by this rule.
EPA's withdrawal of its approval of the State's contingency
measures does not include a federal mandate that may result in
estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector. This
action simply makes requirements that the State is already imposing no
longer subject to federal enforcement. Restoration of the FIP
contingency procedures puts back in place federal requirements that
existed prior to their withdrawal by the Agency in 1996. To the extent
that this action imposes any mandate on State, local, tribal
governments or the private sector, EPA concludes that it would not
result in estimated costs of $100 million or more. With regard to both
actions, EPA is simply implementing administratively what the Ninth
Circuit effectuated in its July 31, 1997 opinion in DiSimone v.
Browner. Therefore EPA has not prepared a budgetary impact statement
for 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 January 30, 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 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations.
[[Page 63458]]
Dated: November 20, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the 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 et seq.
Subpart D--Arizona
Sec. 52.120 [Amended]
2. Section 52.120 is amended by removing and reserving paragraphs
(c)(83) and (c)(85).
[FR Doc. 97-31278 Filed 11-28-97; 8:45 am]
BILLING CODE 6560-50-P
