[Federal Register Volume 63, Number 93 (Thursday, May 14, 1998)]
[Rules and Regulations]
[Pages 26720-26722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12853]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-007-FON FRL-6010-3]
Finding of Failure To Submit Required State Implementation Plans
for Carbon Monoxide; Arizona; Phoenix Carbon Monoxide 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
carbon monoxide (CO) nonattainment area. These required submittals are
the serious area plan requirements for attainment of the CO national
ambient air quality standards (NAAQS). The deadline for these
submittals was February 28, 1998.
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 timely SIP submissions.
EFFECTIVE DATE: April 27, 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 CO Planning Requirements for the Phoenix Metropolitan
Area
Under sections 107(d)(1)(C) and 186(a) of the Clean Air Act (Act or
CAA), the Phoenix metropolitan area was designated nonattainment and
classified as ``moderate'' for carbon monoxide. The nonattainment
designation and classification are codified in 40 CFR part 81. See 56
FR 56694 (November 6, 1991). Moderate CO nonattainment areas were given
until December 31, 1995 to attain the CO NAAQS.
The Act 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 186(b)(2). Reclassified
areas are then required to submit revised SIPs to address the
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serious area CO requirements. These planning requirements are set forth
in CAA section 187(b).
On July 29, 1996, EPA published a final reclassification of the
metropolitan Phoenix CO nonattainment area to serious (61 FR 39343).
The reclassification became effective 30 days later on August 28, 1996.
Under the schedule established by the Administrator pursuant to CAA
section 187(f) in the reclassification notice, the State of Arizona was
required to submit a serious area plan addressing the CO NAAQS for the
area by February 28, 1998, 18 months after the effective date of the
reclassification.
These requirements, as they pertain to the Phoenix nonattainment
area, include:
(a) A demonstration of attainment of the CO NAAQS as expeditiously
as practicable but no later than December 31, 2000 including annual
emission reductions as are necessary to attain the standard by that
date (CAA sections 187(a)(7) and 186(a)(1));
(b) A forecast of vehicle miles traveled (VMT) for each year before
the attainment year and provisions for annual updates of these
forecasts (CAA section 187(a)(2)(A));
(c) A comprehensive, accurate, and current inventory of actual
emissions from all sources (CAA section 187(a)(1));
(d) Adopted contingency measures (CAA sections 172(c)(9) and
187(a)(3)), and
(e) Adopted transportation control measures and strategies to
offset any growth in CO emissions from growth in VMT or number of
vehicle trips (CAA sections 187(b)(2)).1
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\1\ Serious CO nonattainment areas are also required to adopt
and implement enhanced vehicle inspection and maintenance programs,
see CAA section 187(a)(6). Arizona has already made the required
submission of this program and EPA approved the program on May 8,
1995 (60 FR 22519).
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B. Consequences of a Failure to Submit Finding
The Maricopa Association of Governments, the Arizona Department of
Environmental Quality, and the Maricopa County Environmental Services
Department have been working on the serious area CO plan since the
Phoenix area was reclassified in July, 1996. These efforts have
included development of an emission inventory, regional and ``hotspot''
air quality modeling, and evaluation of candidate control measures.
Notwithstanding the significant efforts by these agencies, the
State has failed to meet the February 28, 1998 deadline for the
required SIP submittals; therefore, EPA is required to find that the
State of Arizona has failed to make the required SIP submittals for the
Phoenix area CO 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 complete submittals 6 months after the offset sanction
is imposed, then the highway funding sanction will apply in the
affected area, in accordance with 40 CFR 52.31.2 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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\2\ 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 CO requirements for Phoenix area. 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).
II. Final Action
A. Rule
EPA is making a finding of failure to submit for the Phoenix CO
nonattainment area, due to failure of the State to submit SIP revisions
addressing the Clean Air Act's serious area plan requirements for the
CO 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,
April 27, 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 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
complete SIP submittals. 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
[[Page 26722]]
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 April 27, 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
July 13, 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, Carbon monoxide,
Intergovernmental relations.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 27, 1998.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 98-12853 Filed 5-13-98; 8:45 am]
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