[Federal Register Volume 63, Number 37 (Wednesday, February 25, 1998)]
[Rules and Regulations]
[Pages 9423-9425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4821]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-006-FON FRL-5969-8]
Finding of Failure To Submit Required State Implementation Plans
for Particulate Matter; Arizona; Phoenix PM-10 Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Under the Clean Air Act (Act), EPA is taking final action to
find that the State of Arizona has failed to make required State
Implementation Plan (SIP) submittals for the metropolitan Phoenix PM-10
nonattainment area. These submittals are the regional moderate area
plan requirements for the 24-hour PM-10 standard and the serious area
plan requirements for annual PM-10 standard and the regional serious
area requirements for the 24-hour standard. The deadline for these
submittals was December 10, 1997.
This final action triggers the 18-month time clock for mandatory
application of sanctions and 2-year time clock for a federal
implementation plan under the Act. This action is consistent with the
Act's mechanism for assuring SIP submissions.
EFFECTIVE DATE: February 6, 1998.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning
(AIR-2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San
Francisco, California, 94105-3901, telephone (415) 744-1248.
SUPPLEMENTARY INFORMATION:
I. Background
A. Serious Area PM-10 Planning Requirements for the Phoenix
Metropolitan Area
In 1990, Congress amended the Clean Air Act to address, among other
things, continued nonattainment of the PM-10 NAAQS.1 Public
Law 101-549, 104 Stat. 2399, codified at 42 U.S.C., 7401-7671q (1991).
On the date of enactment of the Amendments, PM-10 areas meeting the
qualifications of section 107(d)(4)(B) of the amended Act were
designated nonattainment by operation of law. These areas included all
former Group I areas identified in 52 FR 29383 (August 7, 1987) and
clarified in 55 FR 45799 (October 31, 1980), and any other areas
violating the PM-10 NAAQS prior to January 1, 1989. The metropolitan
Phoenix PM-10 nonattainment area (Phoenix area) was identified as a
Group I area in the August 7, 1987, Federal Register notice. A Federal
Register notice announcing all areas designated nonattainment for PM-10
at enactment of the 1990 amendments was published on March 15, 1991 (56
FR 11101). The boundaries of the Phoenix nonattainment area were set
forth in a November 6, 1991, Federal Register notice (56 FR 56694,
codified for the State of Arizona at 40 CFR 81.303).
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\1\ EPA revised the NAAQS for particulate matter on July 1, 1987
(52 FR 24672), replacing standards for total suspended particulate
with new standards applying only to particulate matter up to 10
microns in diameter (PM-10). At that time, EPA established two PM-10
standards. The annual PM-10 standard is attained when the expected
annual arithmetic average of the 24-hour samples for a period of one
year does not exceed 50 micrograms per cubic meter (g/
m3). The 24-hour PM-10 standard of 150 g/
m3 is attained if samples taken for 24-hour periods have
no more than one expected exceedance per year, averaged over 3
years. See 40 CFR 50.6 and 40 CFR part 50, appendix K.
On July 18, 1997, EPA slightly revised both the annual and the
24-hour PM-10 standard and also established two new standards for
PM, both applying only to particulate matter up to 2.5 microns in
diameter (PM-2.5) (62 FR 38651).
This finding applies to the outstanding obligation of the State
to submit for the Phoenix metropolitan PM-10 nonattainment area a
plan addressing the 24-hour and annual PM-10 standards, as
originally promulgated.
Breathing particulate matter can cause significant health
effects, including an increase in respiratory illness and premature
death.
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Once an area is designated nonattainment, section 188 of the
amended Act outlines the process for classification of the area and
establishes the area's attainment date. In accordance with section
188(a), at the time of designation, the Phoenix area was initially
classified as moderate by operation of law with an attainment date of
December 31, 1994.
The Act further provides that moderate areas that the Administrator
finds have failed to attain by their moderate area deadlines are
reclassified to serious by operation of law, CAA section 188(b)(2).
Reclassified areas are then required to submit revised SIPs to address
the serious area PM-10 requirements within 18 months of the effective
date of the reclassification, CAA section 189(a)(2).
On May 10, 1996, EPA published a final reclassification of the
metropolitan Phoenix PM-10 nonattainment area to serious (61 FR 21372).
Pursuant to section 189(b)(2), the State of Arizona was thus required
to submit a serious area plan addressing both PM-10 NAAQS for the area
by December 10, 1997, 18 months after the effective date of the
reclassification.
These requirements, as they pertain to the Phoenix nonattainment
area, include:
(a) Provisions to assure that the best available control measures
(BACM) (including such reductions in emissions from existing sources in
the area as may be obtained through the adoption, at a minimum, of best
available control technology (BACT)) for the control of PM-10 shall be
implemented no later than 4 years after the area is reclassified, (CAA
section 189(b)(1)(B));
(b) A demonstration (including air quality modeling) that the plan
will provide for attainment as expeditiously as practicable but no
later than December 31, 2001, or an alternative demonstration that
attainment by that date would be impracticable and that the plan
provides for attainment by the most expeditious alternative date
practicable (CAA section 189(b)(1)(A)(i) and (ii)); and
(c) Quantitative milestones which are to be achieved every 3 years
and which demonstrate reasonable further progress toward attainment by
December 31, 2001 (CAA section 189(c)).
B. Residual Moderate Area Planning Requirements in the Phoenix
Metropolitan Area
On May 14, 1996--just days after the reclassification was
published--the Court of Appeals for the Ninth Circuit found that the
Phoenix moderate area PM-10 plan failed to address the 24-hour PM-10
standard as required by the Clean Air Act (Ober v. EPA, 84 F.3d 304
(9th Cir. 1996)). As a result, the Court mandated that EPA require
``the State to submit a separate demonstration of the implementation of
all `reasonably available control measures' targeting the 24 hour
standard violations; attainment and `reasonable further progress' for
the 24 hour standard.'' 84 F.3d at 316.
[[Page 9424]]
In order to comply with the court's order without diverting
resources from the serious area planning effort, EPA--in consultation
with the Arizona Department of Environmental Quality (ADEQ) and the
Maricopa County Environmental Services Department (MCESD)--decided that
the State would incorporate the moderate area plan elements for the 24-
hour standard into the serious area plan but would split that planning
effort into two related parts. Accordingly, EPA required submittal of a
limited, locally-targeted plan (known as the microscale plan) meeting
both the moderate and serious area requirements for the 24-hour
standard by May 9, 1997 and a full regional plan meeting those
requirements for both the 24-hour and annual standards by December 10,
1997. Letter from Felicia Marcus, EPA, to Russell Rhoades, ADEQ,
September 18, 1996. Thus, the microscale and regional plans taken
together would satisfy both the moderate area requirements mandated by
the court and the serious area planning requirements for both
standards.
In brief, the microscale plan was to address the 24-hour standard
violations at five specific monitors in the metropolitan Phoenix area
and meet the statutory RACM, BACM, attainment, and RFP requirements for
moderate and serious PM-10 areas.
ADEQ submitted the Plan for Attainment of the 24-hour PM-10
Standard--Maricopa County PM-10 Nonattainment Area (May, 1997) to EPA
on May 9, 1997. On August 4, 1997 (62 FR 41856), EPA approved in part
and disapproved in part the microscale plan. For a complete discussion
of the microscale plan, see the proposed approval/disapproval at 62 FR
31025 (June 6, 1997).
The regional plan, representing the balance of Phoenix's serious
area plan, as well as the additional moderate area elements required by
Court, was due December 10, 1997, the date established by the
reclassification. This plan, which was to meet the requirements in
section 189(b) and (c) of the Act, needed to assure that all statutory,
regulatory, and policy requirements for serious area PM-10 plans for
both the annual and 24-hour standards were fully addressed. It was to
include a regional analysis, based on air quality modeling, that
demonstrated implementation of BACM, RACM, and additional measures as
necessary to assure expeditious attainment and quantitative milestones
and RFP throughout the nonattainment area. As part of this regional
plan, attainment of both PM-10 standards was to be demonstrated at all
monitoring sites.
C. Consequences of a Failure To Submit Finding
The Maricopa Association of Governments (MAG), ADEQ, and MCESD have
been working on the regional serious area plan since the Phoenix area
was reclassified in May, 1996. These efforts have included development
of a regional emission inventory, regional Urban Air Quality modeling,
and evaluation of candidate BACM.2
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\2\ MAG has also worked with the cities and towns of Maricopa
County to adopt measures for PM-10 control that are in addition to
those adopted for the microscale plan. These measures were submitted
to EPA on December 11, 1997 as a revision to the SIP and EPA found
that submittal complete on February 6, 1998. See Letter, David P.
Howekamp, U.S. EPA--Region 9 to Russell Rhoades, ADEQ, February 6,
1998. These measures were not intended by the State to constitute
the serious area PM-10 SIP or any part of that plan and therefore
their submittal does not affect the finding of failure to submit for
the serious area plan. See Letter, Russell Rhoades, ADEQ to Felicia
Marcus, U.S. EPA, Region 9 re: Submittal of the Particulate Matter
Control Measures for the Maricopa County Nonattainment Area (dated
December 1997), December 11, 1997.
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Notwithstanding these significant efforts by the Maricopa
Association of Governments, the Maricopa County Environmental Service
Department and the Arizona Department of Environmental Quality, the
State has failed to meet the December 10, 1997 deadline for the
required SIP submittals. EPA is therefore compelled to find that the
State of Arizona has failed to make the required SIP submittals for the
Phoenix area PM-10 nonattainment area.
The CAA establishes specific consequences if EPA finds that a state
has failed to meet certain requirements of the CAA. Of particular
relevance here is CAA section 179(a)(1), the mandatory sanctions
provision. Section 179(a) sets forth four findings that form the basis
for application of a sanction. The first finding, that a State has
failed to submit a plan required under the CAA, is the finding relevant
to this rulemaking.
If Arizona has not made the required complete submittals within 18
months of the effective date of today's rulemaking, pursuant to CAA
section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA
section 179(b) will be applied in the affected area. If the State has
still not made a complete submittal 6 months after the offset sanction
is imposed, then the highway funding sanction will apply in the
affected area, in accordance with 40 CFR 52.31.3 In
addition, CAA section 110(c) provides that EPA must promulgate a
federal implementation plan (FIP) no later than 2 years after a finding
under section 179(a).
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\3\ In a 1994 rulemaking, EPA established the Agency's selection
of the sequence of these two sanctions: The offset sanction under
section 179(b)(2) shall apply at 18 months, followed 6 months later
by the highway sanction under section 179(b)(1) of the Act. EPA does
not choose to deviate from this presumptive sequence in this
instance. For more details on the timing and implementation of the
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR
52.31, ``Selection of sequence of mandatory sanctions for findings
made pursuant to section 179 of the Clean Air Act.''
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The 18-month clock will stop and the sanctions will not take effect
if, within 18 months after the date of the finding, EPA finds that the
State has made a complete submittal of a plan addressing the serious
area PM-10 requirements for Phoenix area and the residual moderate area
planning requirements for the 24-hour standard. In addition, EPA will
not promulgate a FIP if the State makes the required SIP submittals and
EPA takes final action to approve the submittals within 2 years of
EPA's findings (section 110(c)(1) of the Act).4
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\4\ EPA is already obligated to promulgate a FIP for the
moderate area plan requirements by July 18, 1998. This FIP
obligation arose from an incompleteness finding made on the 1991
submittal of the initial moderate area plan. Under section 179(a) of
the Act, incompleteness findings also trigger both sanction and FIP
clocks. While Arizona subsequently completed the submittal and
turned off the sanction clock, EPA's approval of the moderate area
plan was vacated in Ober, leaving EPA with a FIP obligation in
regards to the full moderate area plan.
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II. Final Action
A. Rule
EPA is making findings of failure to submit for the Phoenix PM-10
nonattainment area, due to failure of the State to submit SIP revisions
addressing (1) the Clean Air Act's moderate area plan requirements for
the regional aspects of the 24-hour PM-10 standard and (2) the Act's
serious area plan requirements for the annual PM-10 standard and the
regional aspects of the 24-hour standard.
B. Effective Date Under the Administrative Procedures Act
Because EPA is issuing this action as a rulemaking, the
Administrative Procedures Act (APA) applies.
The action will be effective on the date this action is signed,
February 6, 1998. Under the 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. This action concerns SIP submittals that are already
overdue and the State and general public are aware of applicable
provisions of the CAA relating to
[[Page 9425]]
overdue SIPs. In addition, this action simply starts a ``clock'' that
will not result in sanctions for 18 months, and that the State may
``turn off'' through the submission of a complete SIP submittal. These
reasons support an effective date prior to 30 days after the date of
publication.
C. Notice-and-Comment Under the Administrative Procedures Act
This action is a final agency action but is not subject to the
notice-and-comment requirements of the APA, 5 U.S.C. 533(b). EPA
believes that because of the limited time provided to make findings of
failure to submit regarding SIP submittals, Congress did not intend
such findings to be subject to notice-and-comment rulemaking. However,
to the extent such findings are subject to notice-and-comment
rulemaking, EPA invokes the good cause exception pursuant to the APA, 5
U.S.C. 553(d)(3). Notice and comment are unnecessary because no EPA
judgment is involved in making a nonsubstantive finding of failure to
submit SIPs required by the CAA. Furthermore, providing notice and
comment would be impracticable because of the limited time provided
under the statute for making such determinations. Finally, notice and
comment would be contrary to the public interest because it would
divert Agency resources from the critical substantive review of
submitted SIPs. See 58 FR 51270, 51272, note 17 (October 1, 1993); 59
FR 39832, 39853 (August 4, 1994).
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this action
from review under Executive Order 12866.
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
of any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small business, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000.
As discussed in section III.C. below, findings of failure to submit
required SIP revisions do not by themselves create any new
requirements. Therefore, I certify that today's action does not have a
significant impact on small entities.
C. Unfunded Mandates Act
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act'') signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
In addition, under the Unfunded Mandates Act, before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, EPA
must have developed, under section 203, a small government agency plan.
EPA has determined that today's action is not a Federal mandate.
The CAA provision discussed in this notice requires states to submit
SIPs. This notice merely provides findings that Arizona has not met
that requirement. This notice does not, by itself, require any
particular action by any State, local, or tribal government, or by the
private sector.
For the same reasons, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.
D. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. However, section 808 provides that any rule for which
the issuing agency for good cause finds (and incorporates the finding
and a brief statement of reasons therefor in the rule) that notice and
public procedure thereon are impracticable, unnecessary or contrary to
the public interest, shall take effect at such time as the agency
promulgating the rule determines. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefor, and established an effective date of February 6,
1998. EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
E. Paperwork Reduction Act
This rule does not contain any information collection requirements
which require OMB approval under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
F. Judicial Review
Under CAA Section 307(b)(1), a petition to review today's action
may be filed in the Court of Appeals for the appropriate circuit by
April 27, 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) of the Act.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, particulate
matter, Intergovernmental relations.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 6, 1998.
Amy K. Zimpfer,
Acting, Regional Administrator, Region IX.
[FR Doc. 98-4821 Filed 2-24-98; 8:45 am]
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