[Federal Register Volume 61, Number 69 (Tuesday, April 9, 1996)]
[Proposed Rules]
[Pages 15745-15751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8807]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ033-0002 FRL-5456-7]
Approval and Promulgation of Implementation Plans; Arizona--
Maricopa Nonattainment Area; Carbon Monoxide
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve contingency measures adopted
pursuant to the Clean Air Act (CAA) and submitted to EPA as revisions
to the Arizona State Implementation Plan (SIP) for the Maricopa
(Phoenix) carbon monoxide (CO) nonattainment area. The intended effect
of approving these contingency measures is to regulate emissions of CO
in accordance with the requirements of the CAA. Based on the proposed
approval of these measures, EPA is proposing to withdraw its Federal
contingency process for the Maricopa area and its proposed list of
highway projects subject to delay.
DATES: Written comments on this proposal must be submitted to EPA at
the address below by May 9, 1996. A public hearing, if requested, will
be held in Phoenix, Arizona. If such a hearing is requested, it will be
held on April 23, 1996. If a hearing is requested, the comment period
will be extended until May 24, 1996. The purpose of the extension of
the comment period beyond May 9, 1996 is to provide an opportunity for
the submission of rebuttal and supplementary information. Anyone who
wishes to request a public hearing should call Wallace Woo at 415-744-
1207 by April 16, 1996.
ADDRESSES: Written comments should be sent to: Wallace Woo, Chief,
Plans Development Section, A-2-2, U.S. Environmental Protection Agency,
Region 9, 75 Hawthorne Street, San Francisco, California 94105.
The rulemaking docket for this notice, Docket No. 96-AZ-PL-001, may
be inspected and copied at the following location between 8 a.m. and
4:30 p.m. on weekdays. A reasonable fee may be charged for copying
parts of the docket. U.S. Environmental Protection Agency, Region 9,
Air and Toxics Division, Plans Development Section, A-2-2, 75 Hawthorne
Street, San Francisco, California 94105.
Copies of the docket are also available at the State office listed
below:
Arizona Department of Environmental Quality, Library, 3033 North
Central Avenue, Phoenix, Arizona 85012
FOR FURTHER INFORMATION CONTACT: Jerry Wamsley, A-2-2, Air and Toxics
Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, California 94105, (415) 744-1226.
SUPPLEMENTARY INFORMATION:
I. Background
A. 1991 Federal Implementation Plan
On February 11, 1991, EPA disapproved under the Clean Air Act (CAA)
portions of the Arizona State implementation plan (SIP) and promulgated
a limited Federal implementation plan (FIP) for the Maricopa County
(Phoenix), Arizona carbon monoxide (CO) nonattainment area. EPA
disapproved portions of the SIP and promulgated the FIP in response to
an order of the Ninth Circuit Court of Appeals in Delaney v. EPA, 898
F.2d 687 (9th Cir. 1990). For a discussion of Delaney, the SIP
disapproval, and the FIP, see the notice of proposed rulemaking (NPRM)
for the FIP, 55 FR 41204 (October 10, 1990) and the notice of final
rulemaking (NFRM) for the FIP, 56 FR 5458 (February 11, 1991).
The Delaney order required EPA to promulgate, as part of the FIP, a
two-part contingency process consistent with the Agency's 1982 ozone
and CO SIP guidance (1982 guidance) regarding contingency procedures
found at 46 FR 7187, 7192 (January 22, 1981). These two parts were a
list of transportation projects that would be delayed while an
inadequate plan was being revised and a procedure to adopt measures to
compensate for unanticipated emission reduction shortfalls. The FIP
contingency process is described in detail at 56 FR 5458, 5470-
5472.1
\1\ Implementation of the FIP contingency process was triggered
by violations of the CO standard in Phoenix in December 1992. On
June 28, 1993, EPA published a notice of proposed rulemaking
proposing to find that the implementation plan was inadequate and
that additional control measures were necessary to attain and
maintain the CO NAAQS in the Maricopa area. In the same notice, EPA
also proposed an updated list of highway projects subject to delay
while the implementation plan was being revised. On August 9, 1993,
EPA issued a SIP call under section 110(k)(5) of the CAA requiring
that Arizona submit a new plan by July 19, 1994. Arizona submitted
SIP revisions to EPA in November 1993, March 1994 and August 1995
that contained new control measures and a demonstration that the
area would attain the CO NAAQS by December 31, 1995, the attainment
deadline for Phoenix under the 1990 Clean Air Act Amendments. As a
result, EPA took no final action on the June 28, 1993 proposal.
Therefore, EPA is today withdrawing the proposed list of highway
projects subject to delay because it is no longer current and would
have to be updated and revised if the FIP contingency process were
to be implemented again.
[[Page 15746]]
---------------------------------------------------------------------------
B. 1990 Clean Air Act Amendments
Following the FIP proposal, but before the final rulemaking,
Congress passed and the President signed into law on November 15, 1990,
the Clean Air Act Amendments of 1990 (CAAA), 42 U.S.C. Secs. 7401-
7671q. These Amendments made significant changes to the pre-existing
Act and established a new context in which the air quality goals of the
nation are to be achieved. In particular, Congress completely revised
the nonattainment provisions of the Act, Part D of Title I, repealing
the generally applicable provisions of section 172 and adopting
substantial new requirements and planning and attainment deadlines
applicable to CO nonattainment SIPs. Sections 171-193.
The 1990 Amendments established two classifications of CO
nonattainment areas, ``moderate'' and ``serious,'' depending on the
severity of the problem, and set new deadlines for the attainment of
the NAAQS for each classification. Pursuant to the 1990 Amendments, the
Phoenix nonattainment area was classified as moderate by operation of
law. 40 CFR Part 81.303. The 1990 Amendments set forth new and separate
requirements for moderate CO nonattainment areas depending on whether
their design value was below or above 12.7 ppm. The design value for
Phoenix is below 12.7 ppm. 40 CFR Part 81.303. The attainment deadline
for moderate CO areas, regardless of their design value, was as
expeditiously as practicable but not later than December 31, 1995. See
section 186(a)(1).
Under section 186(a)(4), EPA may, upon application by a state
extend the attainment deadline if the state has complied with all
requirements and commitments pertaining to the area in the applicable
plan, and there has been no more than one exceedance of the CO NAAQS in
the year preceding the extension year. Under this provision, EPA may
grant up to two such extensions if these conditions have been met.
Under section 186(b)(2) of the amended Act, EPA is required to
determine within six months following the attainment deadline whether
the area has attained the CO standard. If the Agency determines that
the area has not attained the standard, the area is reclassified to
serious by operation of law and must comply with a new set of
requirements applicable to that classification.
II. CAA Contingency Requirements and EPA Guidance
A. Section 172(c)(9)
Among the new requirements in the 1990 Amendments for moderate
areas with design values below 12.7 ppm (low moderate areas) is a new
provision relating to contingency measures.2 Section 172(c)(9)
requires that the plan for such an area ``shall provide for the
implementation of specific measures to be undertaken if the area fails
to make reasonable further progress, or to attain the national ambient
air quality standard by the attainment date applicable under this [Part
D]. Such measures shall be included in the plan revision as contingency
measures to take effect in any such case without further action by the
State or the Administrator.''
\2\ The pre-1990 Act contained no statutory provision for
contingency measures. As a result of this absence, EPA developed the
1982 guidance pursuant to which EPA promulgated the FIP contingency
process.
---------------------------------------------------------------------------
B. EPA Guidance
EPA has issued several guidance documents related to the post-1990
requirements for CO SIPs. Among them is the ``General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990''
that sets forth EPA's preliminary views on how the Agency intends to
act on SIPs submitted under Title I of the Act. See generally 57 FR
13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). EPA has also
issued a ``Technical Support Document to Aid the States with the
Development of Carbon Monoxide State Implementation Plans,'' July 1992.
This 1992 TSD expands on EPA's interpretation of the CO SIP
requirements in the General Preamble.
For CO, the General Preamble addresses specifically only the
contingency measures required under section 187(a)(3) of the Act for
moderate areas with design values above 12.7 ppm. See 57 FR 13498,
13532-13533. In connection with the discussion of requirements for
moderate ozone areas, the General Preamble addresses generally the
section 172(c)(9) requirements which are applicable to low moderate CO
nonattainment areas such as Phoenix as well. See 57 FR 13498, 13510-
13511. In both discussions, EPA states that the contingency measure
provisions of the 1990 Amendments supersede the contingency
requirements contained in the 1982 guidance.
The 1992 TSD contains a discussion directly applicable to low
moderate CO areas. See pages 5-6. This guidance explains that the
trigger for implementation of the section 172(c)(9) measures is a
finding by EPA that such an area failed to attain the CO NAAQS by the
applicable attainment date and that states must show that their
contingency measures can be implemented with minimal further action on
their part and with no additional rulemaking actions upon such a
finding. As a result of this requirement, the 1992 TSD states that
contingency measures must be adopted and enforceable prior to
submission to EPA.
In the TSD, EPA notes that section 172(c)(9) does not specify how
many contingency measures are needed or the magnitude of emission
reductions they must provide if an area fails to attain the CO NAAQS.
EPA suggests that one appropriate choice would be to provide for the
implementation of sufficient reductions in vehicle miles traveled (VMT)
or emission reductions to counteract the effect of one year's growth in
VMT while the state revises its SIP to incorporate the new requirements
for a serious CO area. Thus, in suggesting a benchmark of one year's
growth in VMT, EPA concluded that the purpose of the Act's contingency
requirement is to maintain the actual attainment year emissions level
while the serious area attainment demonstration is being developed.
In the TSD, EPA lists several examples of contingency measures that
a state might choose, and concludes that the selected measures must be
implemented within 12 months after the finding of failure to attain.
III. Contingency Measure SIP Revisions
A. Enhanced Remote Sensing Program
On November 11, 1993, the Arizona legislature adopted House Bill
(H.B.) 2001. H.B. 2001 is included in the Maricopa Association of
Government's (MAG) Addendum to the 1993 Carbon Monoxide Plan for the
Maricopa County Area.3 MAG held a public hearing on the 1993 CO
Plan Addendum on March 17, 1994. Following adoption by the MAG Regional
Council on March 25, 1994, the 1993 CO Plan Addendum was forwarded to
the State of Arizona. The State then submitted the plan to EPA as a
revision to the Arizona CO SIP on April 4, 1994. For more information
on the public hearing process, see ``MAG 1993 Carbon Monoxide Plan for
the Maricopa County Area, Addendum,'' Appendix, Exhibit 5.
\3\ EPA intends to propose action on the rest of the measures
and the attainment demonstration in the 1993 CO Plan Addendum later
this year.
[[Page 15747]]
---------------------------------------------------------------------------
An enhanced remote sensing program was included in H.B. 2001 which,
among other things, revised title 49 of the Arizona Revised Statutes
(ARS) by adding section 49-542.01. Section 49-542.01 describes the
requirements of the remote sensing program, including the enhanced
remote sensing component which is set forth in section 49-542.01.E.:
If the Administrator of the United States Environmental
Protection Agency finds that Area A 4 has failed to demonstrate
reasonable further progress or has failed to attain the national
ambient air quality standard for ozone or carbon monoxide by the
applicable attainment date, the notification procedure and
requirements shall comply with subsection C of this section, except
that the emissions test shall be required the first time a vehicle
is identified.
\4\ Area A, as defined in ARS section 49-541.1., is a CO
nonattainment area in a county with a population of one million two
hundred thousand or more persons as determined by the most recent
U.S. census. The Phoenix CO nonattainment area currently falls
within this definition.
The enhanced remote sensing program differs from the basic remote
sensing program, subsections B. and C. of section 49-542.01, in its
immediate requirement for vehicle inspection and testing. Under the
enhanced remote sensing program, once a vehicle has been identified as
exceeding specified emissions cutpoints, the vehicle owner is informed
of the test results and required to have the vehicle tested within 30
days at an official state vehicle emissions inspection station. If the
vehicle owner does not comply with this requirement, the Arizona
Department of Transportation (ADOT) is required to suspend the
vehicle's registration. Under the basic remote sensing program the
vehicle owner is not required to have the vehicle tested at a state
vehicle emissions inspection station unless a second notification is
received within 12 months of the first notification that the vehicle
has again failed a remote sensor emissions test.
The enhanced remote sensing contingency measure is administered by
the State through the Arizona Vehicle Emission Inspection program which
was approved into the CO SIP by EPA on May 8, 1995 at 60 FR 22518. That
Federal Register notice describes the statutory and regulatory
provisions applicable to the inspection and maintenance (I/M) program.
Those provisions include an annual emissions inspection program, ARS
section 49-542, and funding for that program and the remote sensing
programs, ARS section 49-544. The emission reductions assigned to the
enhanced remote sensing program are 6.5 metric tons/day (tpd) of CO.
These reductions represent a 0.79% reduction from the total estimated
1995 CO baseline emissions. See 1993 CO Plan Addendum, Appendix,
Exhibit 3, ``Revised Base Case and Demonstration of Attainment for
Carbon Monoxide for Maricopa County,'' Table 2-7, page 2-11.
B. Traffic Diversion Measure
On September 10, 1992, MAG held a public hearing on a traffic
diversion measure which was adopted by the MAG Regional Council on
October 28, 1992 subject to receiving an implementation commitment. On
November 20, 1992, the Arizona Transportation Board adopted a
resolution (ADOT resolution) committing to implement the measure. On
November 24, 1992, MAG forwarded the ADOT resolution to ADEQ and the
State submitted it to EPA on December 11, 1992. On February 24, 1993,
MAG adopted the ``MAG Process and Impact Documentation for Carbon
Monoxide Contingency Measures'' (MAG process document) which describes
the traffic diversion measure. The State submitted the MAG process
document as a SIP revision to EPA on June 23, 1993.\5\ The traffic
diversion measure would divert interstate through traffic around the
Phoenix nonattainment area during the high pollution season by
installing signs along alternative state highway routes. The purpose of
the traffic diversion is to manage congestion by eliminating
unnecessary traffic from the urbanized portion of the nonattainment
area, thereby reducing CO emissions.
\5\ This SIP revision also contained a MAG contingency process
that was intended to replace the FIP contingency process. EPA
proposed to approve the MAG process on December 8, 1993, but never
took final action on the proposal. 58 FR 64530. The traffic
diversion measure is also contained in the 1993 CO Plan Addendum at
p. 2-16.
---------------------------------------------------------------------------
Attachment A to the ADOT resolution describes the implementation
and funding mechanisms for the measure. The appropriate signs will be
placed at designated locations within 60 days of a determination by EPA
that the Phoenix area has failed to make reasonable further progress
for CO or has failed to meet the applicable attainment date for CO.
ADOT has indicated in its 1992 resolution that it has the financial
resources and access to manpower to fabricate, install and maintain the
appropriate signs.
The traffic diversion measure was modeled based on the assumption
that half of the through traffic would be diverted to alternate routes.
Based on the modeling runs it performed, MAG estimated that if half of
the trips were voluntarily diverted through the use of alternate route
signs, there would be a .1% reduction in regional CO emissions which
equates to a reduction of .8 tpd. For additional information on the
traffic diversion measure, see the MAG process document, the November
20, 1992 ADOT resolution and the 1993 CO Plan Addendum.
IV. Standard for SIP Approval
A. Completeness
Under section 110(k)(1)(B) of the CAA, within 60 days of receipt of
a SIP submittal, but no later than six months after the date, if any,
by which a state is required to submit the plan or plan revision, EPA
must determine if the submittal meets the ``Criteria for Determining
the Completeness of Plan Submissions'' at 40 CFR Part 51, Appendix V.
If EPA has not determined six months after the receipt of the
submission that it fails to meet the Appendix V criteria, the
submission is deemed to be complete by operation of law.
EPA made no completeness finding on the 1993 CO Plan Addendum which
contains the enhanced remote sensing program. As a result, this
submittal became complete by operation of law on October 8, 1994.
EPA made no completeness finding on the submittal of the ADOT
resolution in which the Department commits to implement the traffic
diversion measure. As a result, the submittal became complete by
operation of law on June 11, 1993. EPA found the MAG process document,
which describes the traffic diversion measure, complete on July 26,
1993. See July 26, 1993 letter from David P. Howekamp, EPA, to Edward
Z. Fox, ADEQ. The traffic diversion measure is also described in the
1993 CO Plan Addendum which became complete by operation of law on
October 8, 1994.
B. Section 110(l)
Once a SIP submittal is deemed complete, EPA must next determine if
the submittal is approvable as a revision to the SIP. EPA's primary
responsibility when approving SIP revisions is to ensure that the
revisions strengthen or maintain the SIP and are consistent with CAA
requirements.
Section 110(l) of the CAA states that the ``Administrator shall not
approve a revision of a plan if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress * * * or any other applicable requirement of [the Clean Air]
Act.'' Therefore, before
[[Page 15748]]
approving the State's 172(c)(9) measures and withdrawing the FIP
contingency process, EPA must demonstrate that the revision will not:
(1) delay attainment, (2) interfere with reasonable further progress
(RFP), or (3) conflict with the Phoenix area's compliance with other
requirements of the Act. As stated previously, for low moderate CO
areas, section 172(c)(9) establishes the only requirement for
contingency measures. As discussed elsewhere in this notice, EPA is
proposing to conclude that the State's submittals meet the requirements
of section 172(c)(9). Neither the statute nor current EPA policy
requires contingency procedures (as distinguished from actual measures)
in SIPs. As noted above, the 1982 SIP guidance, which required
contingency procedures and under which the FIP was promulgated, has
been superseded. Therefore, withdrawal of the FIP contingency process,
in conjunction with the approval of contingency measures consistent
with the requirements of the CAAA, does not conflict with current law
or EPA policy regarding contingency requirements.
EPA has also concluded that approval of the section 172(c)(9)
measures and withdrawal of the FIP contingency process does not
interfere with RFP. Under section 171(1) of the Act, RFP means ``such
annual incremental emission reductions as are required by this part [D]
or may reasonably be required by the Administrator for the purpose of
assuring attainment of the applicable national ambient air quality
standard by the applicable attainment date.'' Under section 172(c)(9),
contingency measures are designed to go into effect if the area fails
to make RFP or to attain the NAAQS. Thus, by their very nature, such
measures become operative only when there has been a failure to make
RFP. Therefore, approval of the State's contingency measures and
withdrawal of the FIP contingency process cannot be said to interfere
with RFP.
The final remaining inquiry under section 110(l) is whether
approval of the State's section 172(c)(9) measures and withdrawal of
the FIP process would interfere with timely attainment. Under the pre-
amended Act there were no statutory provisions to extend the attainment
deadline or to establish a new deadline if an area failed to attain the
NAAQS by the applicable statutory deadline. EPA's pre-amendment
contingency guidance was created to fill this vacuum by requiring
states to include in their SIPs a self-executing process 6 to
delay highway projects that could adversely affect air quality while
new control measures were being adopted to cure the attainment
shortfall. See 46 FR 7182. The FIP contingency process was developed to
comply with this guidance in the context of the pre-amended Act.7
\6\ Under section 110(a)(2)(H) of the pre-amended Act, EPA could
require a state to revise its SIP if the Agency made a finding that
the plan was substantially inadequate to achieve the NAAQS or to
otherwise comply with the requirements of the Act.
\7\ The FIP, which contained control measures, an attainment
demonstration and conformity procedures as well as a contingency
process, was proposed prior to the passage of the CAAA. Therefore it
was developed under the pre-1990 statute and EPA guidance designed
to implement that Act. Even though the CAAA were enacted prior to
EPA's final FIP rulemaking, the final FIP reflected the requirements
of the old law and guidance.
---------------------------------------------------------------------------
The FIP contingency process involves, among other things, various
assessments and findings that then determine what action, if any, EPA
must take if a violation occurs after the attainment deadline,
currently December 31, 1995. At its most aggressive, the FIP process
requires EPA to adopt measures to cure the shortfall within a minimum
of 14 to 16 months from a violation occurring after the attainment
deadline. Even if the FIP requirement to adopt new control measures to
cure the shortfall can be construed as, effectively, a requirement to
adopt a new attainment demonstration, such a demonstration would be
developed under the amended Act's provisions.
The CAAA contain an entirely different scheme for dealing with a
violation of the NAAQS after 1995. In the case of Phoenix, which
recorded apparent violations 8 of the CO standard in 1995 and
early 1996, the area is not expected to be able to qualify for
attainment deadline extensions under the extension provisions of the
amended Act. Rather, following a finding by EPA that the area failed to
attain the CO standard, it would be reclassified to serious. Once
reclassified, under section 187(f) and EPA guidance,9 Arizona
would be required to submit a new plan meeting the serious area
requirements of section 187(c)(1) 18 months after reclassification that
demonstrates attainment as expeditiously as practicable but not later
than December 31, 2000. See section 186(a)(1). For the 18 month period
during which the new SIP is being developed, the section 172(c)(9)
contingency measures would go into effect to ensure that air quality in
the area does not deteriorate pending development of the serious area
attainment demonstration.
\8\ EPA has not yet completed its review of the 1995 air quality
data for the Phoenix area and, under 40 CFR section 58.35(c)(1), the
State has until June 30, 1996 to formally submit data from the first
quarter of 1996.
\9\ See Memorandum from Sally Shaver, Director, Air Quality
Strategies and Standards Division, EPA, to Air Division Directors
entitled ``Criteria for Granting Attainment Date Extensions, Making
Attainment Determinations, and Determinations of Failure to Attain
the NAAQS for Moderate CO Nonattainment Areas.'' October 23, 1995.
---------------------------------------------------------------------------
As demonstrated above, the section 172(c)(9) measures in the
amended Act take the place of, and serve the same purpose as, the
highway delay provision in EPA's pre-amendment guidance and the FIP
contingency process. Similarly, the extension and reclassification
provisions of the amended Act replace the pre-amendment contingency
guidance and the FIP provision for adoption of additional control
measures to cure the shortfall. EPA recognized this when it indicated
that its 1982 guidance on contingency procedures was no longer
applicable.
Interference with timely attainment under section 110(l) can be
found only if the existing statutory scheme for attainment would be
thwarted by replacing the FIP contingency process with the State's
section 172(c)(9) measures. Rather than thwarting the amended Act's
statutory scheme, such a substitution will serve to bring Phoenix in
line with what Congress intended in the CAAA. In short, the existence
of the FIP contingency process in the context of the CAAA is at best an
uncomfortable fit, and at worst it is duplicative and inconsistent with
the new statutory scheme. Thus approving Arizona's section 172(c)(9)
measures and withdrawing the FIP process would promote Congress' intent
in crafting the new attainment provisions. Under these circumstances,
EPA believes that such an outcome would clearly not interfere with
timely attainment within the meaning of section 110(l).
C. Section 193
On December 8, 1993, EPA proposed to withdraw the FIP contingency
process and to approve in its place a similar process adopted by MAG
and submitted to EPA as a SIP revision. 58 FR 64530. While EPA did not
take final action on this proposal, during the public comment period
following its publication, the Arizona Center for Law in the Public
Interest (ACLIPI) filed comments in which it asserted, among other
things, that section 193, the general savings clause, applies to the
FIP contingency process. EPA disagrees with ACLIPI. Since such a
comment is relevant to today's proposal, the Agency is addressing it
here. Section 193 provides in pertinent part that:
[[Page 15749]]
[N]o 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.
The contingency process contained in the Maricopa CO FIP was
required by a March 1, 1990 order of the 9th Circuit--before the
enactment of the CAAA on November 15, 1990. ACLIPI contended that the
FIP contingency process falls within the scope of the above language of
section 193 and that therefore EPA may not modify that process unless
the modification insures equivalent or greater emission reductions.
Having concluded that Maricopa's pre-amendment CO plan did not
contain contingency procedures that met EPA's 1982 guidance, the 9th
Circuit ordered EPA to promulgate a Federal plan that contained
contingency procedures in accordance with that guidance. Delaney, at
695. The FIP contingency process, promulgated in accordance with the
Court's order, consists of an intricate series of actions by EPA
potentially spanning a minimum of 14 to 16 months. The Federal process
potentially involves, among other things, various assessments and
findings, air quality modeling, review and delay of current highway
projects in Arizona, and the adoption of additional control measures.
The eventual length and scope of the process is dependent upon the
outcome of the assessments and findings called for in the process and
is therefore not predictable in advance. The FIP contingency process is
described in detail at 56 FR 5471-5472.
EPA does not believe that such a process constitutes a ``control
requirement'' within the meaning of section 193 of the Act. On its
face, the savings clause prohibits the modification only of existing
control requirements or specific control requirements required to be
adopted pursuant to an order. While EPA was required by the Court's
order in Delaney to promulgate a contingency plan in accordance with
the Agency's then existing guidance, the Court did not order EPA to
promulgate any specified control requirements in that plan. Indeed, the
inclusion of any specific control requirements by EPA would not have
been consistent with the terms and intent of EPA's 1982 guidance on
contingency procedures.
While ``control requirement'' is not defined in the Act, it is
generally viewed as a discrete regulation directed at a specific source
of pollution; e.g., an emission control requirement for a smoke stack
at a power plant. By contrast, a contingency process, as outlined by
EPA's 1982 guidance, is much broader and far-reaching than a control
requirement. Therefore, under a straightforward reading, the savings
clause is best viewed as an anti-backsliding provision by which
Congress intended to prevent the relaxation of actual, existing control
requirements on specific pollution sources or controls required to be
adopted for specific pollution sources while states are proceeding with
their new planning obligations under the 1990 Amendments.
Beyond the plain language of section 193, however, EPA's
interpretation of section 193 is consistent with the structure of the
1990 Amendments as they relate to the new planning requirements for
nonattainment areas and the failure of those areas to attain the NAAQS.
These requirements are discussed in previous sections of this notice.
As shown above, the eternal retention of the FIP contingency process
(or its equivalent) in the applicable plan for Phoenix would forever
overlay its outdated, inconsistent planning scenario on the new
statutory scheme.
For these reasons, EPA has concluded that both the plain language
of section 193 and the new statutory scheme support EPA's
interpretation that the FIP contingency process is not subject to the
restrictions concerning equivalent emission reductions in section 193.
V. EPA Evaluation of SIP Submittal
A. Enhanced Remote Sensing Program
EPA has evaluated Arizona's enhanced remote sensing program and
concluded that it meets the requirements of section 110(a)(2) of the
CAA. The program is administered by the Arizona Department of
Environmental Quality (ADEQ) as part of Arizona's I/M program which has
been approved into the CO and ozone SIP. ARS section 49-542; 60 FR
22518. Arizona law confers the legal authority on ADOT to enforce the
program's requirements through vehicle registration suspension. ARS
section 49-542.01.C. The program is adequately funded through an
emissions inspection fund. ARS section 49-544.
EPA has also concluded that the enhanced remote sensing program
meets the requirements of section 172(c)(9) and EPA's guidance on
contingency requirements for low moderate CO nonattainment areas. The
program is fully adopted and capable of implementation upon a finding
by EPA that the Phoenix area has failed to attain the CO NAAQS by the
applicable attainment date. Therefore, the program meets the section
172(c)(9) requirement that, when triggered, contingency measures must
take effect without further action by the State or the Administrator.
B. Traffic Diversion Measure
EPA has evaluated MAG's traffic diversion measure and concluded
that it meets the requirements of section 110(a)(2) of the CAA. ARS
section 28-642 authorizes ADOT to place and maintain traffic control
devices on all state highways for the purpose of traffic regulation. As
discussed in section III.B. of this notice, ADOT has indicated in its
1992 resolution that it has both the funding and personnel to implement
the measure once it is triggered by an EPA finding.
The implementation commitment in the ADOT resolution is in
enforceable form and therefore legally binds the Department to initiate
the traffic diversion measure within 60 days of an EPA finding.
However, the measure's ability to achieve emission reductions is
entirely dependent on the voluntary actions of motorists, and there is
no credible means of determining how many of them will heed the signs'
exhortations. Therefore, while MAG has estimated that the measure will
reduce CO emissions in the Phoenix area by .8 tpd, EPA is assuming, for
the purposes of its proposed section 172(c)(9) approval, only that the
measure will result in some, albeit unquantifiable, emission reduction
benefit.
With respect to the requirements of section 172(c)(9) and EPA's
guidance on contingency measures for low moderate CO areas, EPA has
concluded that the traffic diversion measure is acceptable. ADOT has
indicated in its 1992 resolution that it can implement the measure
within 60 days of an EPA finding and has committed to do so. EPA has
stated in its 1992 TSD that states must show that their contingency
measures can be implemented with minimal further action (other than
rulemaking) and that full implementation of the measures within 60 days
after EPA notification is sufficient to meet the section 172(c)(9)
requirements.
EPA believes that the traffic diversion measure, when triggered as
a contingency measure, will serve to strengthen the SIP. Although EPA
cannot now find that the measure will produce any specific amount of
emission reduction, the measure, taken in conjunction with the enhanced
remote sensing program and other
[[Page 15750]]
emission reductions occurring in the area, as described below, will
result in reductions more than adequate to offset one year of VMT
growth as suggested by EPA's guidance.
C. Additional Post-1995 Emission Reductions
As has been shown above, CO emission reductions of 6.5 tpd are
expected to result from the implementation of the enhanced remote
sensing program. Moreover, EPA believes that some additional but
unknown reductions will be achieved through implementation of the
traffic diversion measure. The State has provided to EPA data
indicating that emissions increases of 17 tpd from VMT growth are
expected to occur in 1996 and 1997, the period during which the SIP
would be revised if the area is found to have failed to attain the CO
standard by December 31, 1995.
The State has also provided information documenting that emission
reductions of 32 tpd are expected to be achieved in 1996 and 1997
through continued implementation of Arizona's I/M program beyond those
reductions achieved through 1995 from the I/M program. The 6.5 tpd
reductions from the enhanced remote sensing program and the additional
benefits from the traffic diversion measure, if triggered as
contingency measures, in conjunction with these additional I/M
reductions, are more than sufficient to offset the projected emissions
associated with VMT growth during the 2 year SIP revision
period.10
\10\ Additional information on VMT growth and emission
reductions from the I/M program after 1995 is provided in the TSD
for this notice.
---------------------------------------------------------------------------
As set forth in section II.B. of this notice, EPA suggested in its
1992 TSD that contingency measures for these areas achieve emission
reductions offsetting one year's VMT growth while the SIP is being
revised. In establishing this suggested benchmark, EPA intended that,
following a finding of nonattainment, the status quo, as represented by
the emissions level in the attainment deadline year, be maintained
during this period. EPA believes that this result can be achieved by
considering reductions from the section 172(c)(9) measures in
combination with new reductions scheduled to occur in the area during
the SIP revision period, as long as these offsetting reductions are
from measures approved into the SIP and are in excess of reductions
occurring in the attainment deadline year. The emission reductions from
the enhanced remote sensing program, the traffic diversion measure, and
the additional reductions from the I/M program in 1996 and 1997 more
than meet this test.
For the above reasons, EPA is proposing to approve the State's
enhanced remote sensing program and the MAG traffic diversion measure
as meeting the requirements of section 172(c)(9).
VI. Withdrawal of Federal Contingency Process
Based on the proposed approval of the State's 172(c)(9) contingency
measures, EPA is proposing to withdraw the Federal contingency process
for the Phoenix CO nonattainment area. Specifically, the Agency is
proposing to delete the phrase ``After December 31, 1991 for the
Maricopa CO nonattainment area or'' from the contingency provisions at
56 FR 5470, column 2 (February 11, 1991). This deletion will leave the
Federal contingency process in place for the Pima County CO
nonattainment area. EPA also proposes to withdraw the list of highway
projects potentially subject to delay that was proposed on June 28,
1993 during the partial implementation of the FIP contingency process
at that time. 58 FR 34547.
EPA is proposing these actions because, with its final approval of
the State's section 172(c)(9) measures, the Federal process will become
unnecessary for attainment and maintenance of the CO NAAQS in the
Phoenix area. To leave the Federal process in place would complicate
air quality planning within Maricopa County and would be unnecessarily
redundant. In addition, giving preference to the State's measures is
consistent with the Clean Air Act's intent that states have primary
responsibility for the control of air pollution within their borders.
See CAA sections 101(a)(3) and 107(a).
VII. Summary of EPA Actions
EPA is today proposing to approve into the Arizona SIP for the
Phoenix CO nonattainment area the State's enhanced remote sensing
program and the MAG traffic diversion measure as meeting the
requirements of section 172(c)(9) of the CAA. EPA is also proposing to
withdraw the Federal contingency process promulgated pursuant to
section 110(c) of the Act and published on February 11, 1991 (56 FR
5458). Finally, EPA is withdrawing the list of highway projects subject
to delay proposed on June 28, 1993 (58 FR 34547) as part of the
implementation of the Federal contingency process in 1993.
Nothing in this proposed action should be construed as permitting
or allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for a revision
to the state implementation plan shall be considered separately in
light of specific technical, economic and environmental factors and in
relation to relevant statutory and regulatory requirements.
VIII. Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small business, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000.
SIP approvals under sections 110 and 301 and subchapter I, part D
of the Clean Air Act, do not create any new requirements, but simply
approve requirements that the State is already imposing. Similarly,
withdrawal of the FIP contingency process does not impose any new
requirements. Therefore, because the Federal SIP approval and FIP
withdrawal does not impose any new requirements, it does not have a
significant impact on any small entities affected. Moreover, due to the
nature of the Federal/state relationship under the Act, preparation of
a regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of state action. The Act forbids EPA to
base its actions concerning SIPs on such grounds. Union Electric Co. v.
U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), 2 U.S.C. Secs. 1501-1571,
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.
Through submission of these SIP revisions, the State and any
affected local or tribal governments have elected to adopt the program
provided for under sections 110 and 182 of the CAA. These rules may
bind State, local, and tribal
[[Page 15751]]
governments to perform certain actions and also require the private
sector to perform certain duties. To the extent that the rules being
approved today will impose any mandate upon the State, local, or tribal
governments either as the owner or operator of a source or as a
regulator, or would impose any mandate upon the private sector, EPA's
action will impose no new requirements; such sources are already
subject to these requirements under State law. Similarly, EPA's
withdrawal of the FIP contingency process will not impose any new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
EPA has also determined that this action does not include a mandate
that may result in estimated costs of $100 million or more to State,
local, or tribal governments in the aggregate or to the private sector.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 3, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-8807 Filed 4-8-96; 8:45 am]
BILLING CODE 6560-50-P
