[Federal Register Volume 62, Number 114 (Friday, June 13, 1997)]
[Rules and Regulations]
[Pages 32207-32209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15566]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-5831-9]
Final Rule Making Findings of Failure To Submit Required State
Implementation Plan: Oregon
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action in making a finding, pursuant to
sections 179(a)(1) and 110(k) of the Clean Air Act (CAA or Act), as
amended in 1990 (Pub. L. No. 101-549, November 15, 1990), 42 U.S.C.
7509(a)(1) and 7410, for the state of Oregon. The EPA has determined
that Oregon has failed to submit a state implementation plan (SIP) for
particulate matter less than or equal to 10 microns (PM-10) as required
under the provisions in the Act for the Medford-Ashland nonattainment
area. This rule addresses the requirement under section 189(a)(2)(A) of
the Act that each state shall submit the SIP required under section
189(a)(1) within one year of the date of the enactment of the Clean Air
Act Amendments of 1990 (i.e., by November 15, 1991) for areas
designated nonattainment for PM-10 under section 107(d)(4). Other
provisions required under section 189(a)(1)(A) were due at a later date
(i.e., provisions relating to new source review).
This action triggers the 18-month time clock for mandatory
application of sanctions in the Medford-Ashland PM-10 nonattainment
area under the Act. This action is consistent with the CAA mechanism
for assuring SIP submission.
EFFECTIVE DATE: June 13, 1997.
[[Page 32208]]
ADDRESSES: Copies of the state's request and other information
supporting this action are available for inspection during normal
business hours at the following locations: EPA, Office of Air Quality
(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101; EPA Oregon
Operations Office, 811 SW Sixth Avenue, Third Floor, Portland, Oregon
97204; and the Oregon Department of Environmental Quality, 811 SW Sixth
Avenue, Portland, Oregon 97204-1390.
FOR FURTHER INFORMATION CONTACT: Rindy Ramos, EPA, Office of Air
Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, (206)
553-6510.
SUPPLEMENTARY INFORMATION:
I. Background
A. SIP Elements Due November 15, 1991
The area within the Medford-Ashland, Oregon, Air Quality
Maintenance Area was designated nonattainment for PM-10 and classified
as moderate under Sections 107(d)(4)(B) and 188(a) of the CAA, upon
enactment of the Clean Air Act Amendments (CAAA) of 1990.1
See 56 FR 56694 (November 6, 1991) and 40 CFR 81.338.
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\1\ The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399.
References herein are to the Clean Air Act, as amended (``the
Act''). The Clean Air Act is codified, as amended, in the U.S. Code
at 42 U.S.C. Sections 7401, et seq.
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The air quality planning requirements for moderate PM-10
nonattainment areas are set out in Subparts 1 and 4 of Title I of the
Act.2 EPA has issued a ``General Preamble'' describing EPA's
preliminary views on how EPA intends to review SIPs and SIP revisions
submitted under Title I of the Act, including those state submittals
containing moderate PM-10 nonattainment area SIP requirements (see
generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,
1992)). The General Preamble provides a detailed discussion of EPA's
interpretation of the Title I requirements.
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\2\ Subpart 1 contains provisions applicable to nonattainment
areas generally, and Subpart 4 contains provisions specifically
applicable to PM-10 nonattainment areas. At times, Subpart 1 and
Subpart 4 overlap or may conflict. EPA has attempted to clarify the
relationship among these provisions in the ``General Preamble'' and,
as appropriate, in today's notice and supporting information.
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Those states containing initial moderate PM-10 nonattainment areas
(those areas designated nonattainment under Section 107(d)(4)(B)) were
required to submit, among other things, the following provisions by
November 15, 1991:
1. Provisions to assure that Reasonably Available Control Measures
(including such reductions in emissions from existing sources in the
area as may be obtained through the adoption, at a minimum, of
Reasonably Available Control Technology) shall be implemented no later
than December 10, 1993;
2. Either a demonstration (including air quality modeling) that the
plan will provide for attainment as expeditiously as practicable but no
later than December 31, 1994, or a demonstration that attainment by
that date is impracticable;
3. Quantitative milestones which are to be achieved every three
years and which demonstrate Reasonable Further Progress (RFP) toward
attainment by December 31, 1994; and
4. Provisions to assure that the control requirements applicable to
major stationary sources of PM-10 also apply to major stationary
sources of PM-10 precursors except where the Administrator determines
that such sources do not contribute significantly to PM-10 levels which
exceed the NAAQS in the area. See Sections 172(c), 188, and 189 of the
Act.
States with initial moderate PM-10 nonattainment areas were
required to: (1) submit a permit program for the construction and
operation of new and modified major stationary sources of PM-10 by June
30, 1992 (see Section 189(a)); and (2) submit contingency measures by
November 15, 1993, which were to become effective without further
action by the state or EPA, upon a determination by EPA that the area
has failed to achieve RFP or to attain the PM-10 NAAQS by the
applicable statutory deadline (see Section 172(c)(9) and 57 FR 13543-
13544). Oregon has made submittals in response to both of the above
described requirements. EPA intends to address the submittal containing
the new source review permit program in a separate action.
B. State Withdrawal of November 15, 1991, SIP
On November 15, 1991, to address the CAAA of 1990, Oregon submitted
a PM-10 nonattainment area SIP for the Medford-Ashland PM-10
nonattainment area. EPA determined the submittal to be complete on
April 10, 1992. However, because of various problems with the submittal
that EPA and the state were working to resolve, EPA had, to date, not
taken formal action on the nonattainment area attainment plan.
On January 6, 1997, EPA received a notification from the Oregon
Department of Environmental Quality (ODEQ) that it was withdrawing the
Medford-Ashland PM-10 SIP. The state requested that the attainment plan
be withdrawn effective immediately.
As indicated in its January 6, 1997, letter, ODEQ intends to re-
submit a revised attainment plan, a complete maintenance plan, and a
request to redesignate the area to attainment by March 1998. EPA notes
that significant improvement has been made in air quality in the
Medford-Ashland PM-10 nonattainment area. Based on current air quality
data, the area has attained the annual and 24-hour PM-10 NAAQS at the
area's ambient monitoring sites. However, the area lacks a technical
demonstration indicating attainment of the NAAQS throughout the airshed
as required under the CAA.
C. Finding of Failure To Submit
The 1990 Amendments establish specific consequences if EPA finds
that a state has failed to meet certain requirements of the CAA. Of
particular relevance here is section 179(a)(1) of the CAA, 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 or one or more elements of a
plan required under the CAA, is the finding relevant to this
rulemaking.
Due to the withdrawal by the state of the Medford-Ashland PM-10
attainment plan, the statutory requirement to submit such a plan for
the area is no longer satisfied. Therefore, EPA finds that the state of
Oregon has failed to make a SIP submission for the Medford-Ashland PM-
10 nonattainment area as required pursuant to section 189(a)(2)(A) of
the CAA.
If the state does not correct this deficiency, i.e., by submitting
a complete plan as required by the Act, within 18 months of the
effective date of today's rulemaking, pursuant to section 179(a) of the
CAA and 40 CFR 52.31, the offset sanction identified in section 179(b)
of the CAA will be applied in the Medford-Ashland PM-10 nonattainment
area. If the state still has not made a complete submission 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. In
addition, section 110(c) of the Act provides that EPA promulgate a
federal implementation plan (FIP) no later than two years after a
finding under section 179(a) if prior to that time the EPA has not
approved the submission correcting the deficiency.
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
[[Page 32209]]
complete submittal as to each of the SIP elements for which these
findings are made. In addition, EPA will not promulgate a FIP if the
state makes the required SIP submittal and EPA takes final action to
approve the submittal within two years of EPA's finding.
II. Final Action
A. Rule
Today, EPA is making a finding of failure to submit an attainment
plan for the Medford-Ashland, Oregon, PM-10 nonattainment area.
Specifically, EPA is making a finding that Oregon has not submitted a
plan satisfying the requirement under section 189(a)(2)(A) of the Act.
This section requires that each state submit a plan that includes
certain provisions required under section 189(a)(1) within one year of
the date of enactment of the Clean Air Act Amendments of 1990 (i.e., by
November 15, 1991) for areas designated nonattainment for PM-10 under
section 107(d)(4). Other provisions required under section 189(a)(1)(A)
were due at a later date (i.e., provisions relating to new source
review). See section 189(a)(2)(A).
B. Effective Date Under the Administrative Procedures Act
The Administrative Procedures Act (APA) applies to this rulemaking
action. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take
effect sooner than 30 days after the date of publication in the Federal
Register if the agency has good cause to mandate an earlier effective
date. Today's action concerns a SIP submission that is already overdue.
On February 11, 1997, EPA notified the state that EPA was considering
the action it is taking today. Consequently, the state has been on
notice for some time that today's action was pending. In addition,
today's action simply starts a ``clock'' that will not result in
sanctions against the state for 18 months, and that the state may
``turn off'' through the submission of a complete SIP submittal. These
reasons support establishing an effective date that is earlier than 30
days after the date of publication. Therefore, today's action will be
effective June 13, 1997.
C. Notice-and-Comment Under the Administrative Procedures Act
This rule is a final agency action, but is not subject to the
notice-and-comment requirements of the APA, 5 U.S.C. 553(b). EPA
believes that, because of the limited time provided to make findings of
failure to submit and findings of incompleteness regarding SIP
submissions or elements of SIP submission requirements, 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(b)(3)(B). Notice-and-comment are unnecessary
because no EPA judgment is involved in making a nonsubstantive finding
of failure to submit elements of SIP submissions required by the Clean
Air Act. 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 complete SIPs. See 58
FR 51270, 51272, n.17 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug. 4,
1994).
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
B. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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 on by the rule.
EPA has determined that today's action is not a Federal mandate.
The various CAA provisions discussed in this rule require the state to
submit SIPs. This rule merely provides a finding that the state did not
meet those requirements. This rule does not, by itself, require any
particular action by the 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.
C. 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 of any rule subject to
the notice-and-comment rulemaking requirements. Because this action is
exempt from such requirements as described above, it is not subject to
the RFA.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 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. section 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 August 12, 1997. 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 CAA section 307(b)(2), 42 U.S.C.
7607(b)(2))
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Particulate
matter.
Dated: May 8, 1997.
Chuck Clarke,
Regional Administrator.
[FR Doc. 97-15566 Filed 6-12-97; 8:45 am]
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