[Federal Register Volume 61, Number 133 (Wednesday, July 10, 1996)]
[Rules and Regulations]
[Pages 36292-36295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17545]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-5536-1]
Final Rule Making Findings of Failure To Submit Required State
Implementation Plans for Nonattainment Areas for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action in making findings, under the
Clean Air Act (CAA or Act), that 10 states and the District of Columbia
failed to make complete ozone nonattainment state implementation plans
(SIP) submittals required for 9 nonattainment areas under the Act.
Under certain provisions of the Act, as implemented consistent with a
memorandum issued by EPA Assistant Administrator Mary D. Nichols, on
March 2, 1995, these states are required to submit SIP measures
providing for certain percentage reductions in emissions of ozone
precursors, termed ``rate of progress'' reductions; as well as SIP
commitments to submit SIP measures providing for the remaining required
rate-of-progress reductions as well as any additional emissions
reductions needed for attainment of the ozone ambient air quality
standards in the affected nonattainment areas.
This action triggers the 18-month time clock for mandatory
application of sanctions in theses states under the Act. This action is
consistent with the CAA mechanism for assuring SIP submission.
EFFECTIVE DATE: This action is effective as of July 3, 1996.
FOR FURTHER INFORMATION CONTACT:
General questions concerning this notice should be addressed to Kimber
Scavo, Office of Air Quality Planning and Standards, Air Quality
Strategies and Standards Division, MD-15, Research Triangle Park, NC
27711; tel. (919) 541-5534. For questions related to a specific area,
please contact the appropriate regional office:
Dave Conroy, Manager, Air Quality Planning Unit, EPA Region I (CAQ),
JFK Federal Building, Boston, Massachusetts 02203-2211, tel. (617) 565-
3255 (Connecticut, New Hampshire)
William S. Baker, Chief, Air Programs Branch, EPA Region II (2AWM-AP);
290 Broadway, New York, New York 10007-1866, tel. (212) 637-4249 (New
York, New Jersey)
Marcia Spink, Associate Director, Air, Toxics and Radiation Division,
EPA Region III (3AT00), 841 Chestnut Building, Philadelphia,
Pennsylvania, 19107, tel. (215) 566-2104 (Delaware, Maryland, Virginia,
District of Columbia)
Steven Rothblatt, Branch Chief, Air Programs Branch, EPA Region V (AR-
18J); 77 West Jackson Blvd., Chicago, IL 60604-3590, tel. (312) 353-
2211 (Illinois, Indiana, Wisconsin)
SUPPLEMENTARY INFORMATION:
I. Background
In 1990, Congress amended the Clean Air Act to address, among other
things, continued nonattainment of the ozone national ambient air
quality standard (NAAQS). Pub. L. 101-549, 104 Stat. 2399, codified at
42 U.S.C., 7401-7671q (1991). The Amendments divide ozone nonattainment
areas into, in general, five classifications based on air quality
[[Page 36293]]
design value; and establish specific requirements, including new
attainment dates, for each classification. CAA Secs. 107(d)(1)(C) and
181.
The 1990 Amendments required states containing the highest
classified ozone nonattainment areas--those classified as serious,
severe, or extreme--to submit SIPs providing for periodic reductions in
ozone precursors of a rate of 9% averaged over every three-year period,
beginning after 1996 and ending with the area's attainment date. CAA
Sec. 182(c)(2)(B). This SIP submission may be referred to as the Rate-
of-Progress, or ROP, SIP. The 1990 Amendments further required these
states to submit a demonstration of attainment (including air quality
modeling) for the nonattainment area, as well as SIP measures
containing any additional reductions that may be necessary to attain by
the attainment date. CAA Sec. 182(c)(2)(A). This SIP submission may be
referred to as the Attainment Demonstration. These CAA provisions
established November 15, 1994, as the required date for these SIP
submittals.
Notwithstanding significant efforts, the states generally were not
able to meet this November 15, 1994 deadline for the required SIP
submissions.
On March 2, 1995, EPA Assistant Administrator Mary D. Nichols sent
a memorandum to EPA Regional Administrators (the March 2, 1995
Memorandum, or Memorandum) recognizing the efforts made by states and
the remaining difficulties in making the ROP and Attainment
Demonstration SIP submittals. The March 2, 1995 Memorandum recognized
that in general, many States have been unable to complete these SIP
requirements within the deadlines prescribed by the Act due to
circumstances beyond their control. These states were hampered by
unavoidable delays in developing the underlying technical information
needed for the required SIP submittals. The Memorandum recognized that
development of the necessary technical information, as well as the
control measures necessary to achieve the large level of reductions
likely to be required, is particularly difficult for the many states
affected by ozone transport.
Accordingly, as an administrative remedial matter, the March 2,
1995 Memorandum indicated that EPA would establish new time-frames for
SIP submittals. The Memorandum called for States seeking to avail
themselves of the new policy to submit, by May 1995, a letter
committing to the new time-frames.
The Memorandum further indicated that EPA would divide the required
SIP submittals into two phases. The Phase I submittals generally
consisted of (i) SIP measures providing for ROP reductions due by the
end of 1999 (the first 9% of ROP reductions); (ii) a SIP commitment
(sometimes referred to as an enforceable commitment) to submit any
remaining required ROP reductions on a specified schedule after 1996
(with submission no later than the end of 1999); and (iii) a SIP
commitment to submit the Attainment Demonstration by mid-1997 (with
submission by no later than the end of 1999 of any additional rules
needed to attain).\1\ The Memorandum indicated that EPA would establish
the end of 1995 as the due date for the Phase I submittals. States
could have proposed a schedule for making the submissions in 1996 if
necessary due to administrative scheduling imperatives (such as the
schedule for legislative sessions).
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\1\ The March 2, 1995 Memorandum established other requirements,
and somewhat different requirements for states other than the
Northeast states. These are described in greater detail in the
enclosures to the findings letters, discussed below, which are
included in the docket to this rulemaking.
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The Phase II submittals were due at specified times after 1996, and
primarily consisted of the remaining ROP SIP measures, the Attainment
Demonstration and required additional rules, and any regional controls
necessary for attainment by all areas in the region.
In addition, the March 2, 1995 Memorandum called for a
collaborative process among the States in the eastern half of the
country to evaluate and address transport of ozone and its precursors.
The Memorandum lead to the formation of the Ozone Transport Assessment
Group (OTAG), which includes representatives of those states; EPA
officials; and interested members of the public, including
environmental groups and industry. As indicated in the Memorandum, EPA
has envisioned that OTAG would complete its work by the end of 1996.
The March 2, 1995 Memorandum was widely circulated, and by June
1995, states opting for the time-frames it described had submitted
letters to EPA generally committing to submit the SIP measures called
for under the Memorandum.
OTAG's first meetings were on May 18, 1995, in Reston, Virginia,
and June 19, 1995, in Washington, D.C. OTAG has continued to meet
regularly since then.
By the first few months of 1996, some states appeared to be lagging
in their compliance efforts with the Phase I deadlines. By memorandum
dated April 19, 1996, Assistant Administrator Nichols directed the
Regional Administrators to determine the status of the state planning
efforts to allow EPA to determine which states were or were not in
substantial compliance with the Phase I deadlines. By letters dated in
May 1996, EPA Regional Administrators informed the states that it was
important that they complete the Phase I submittals as soon as
possible, and requested that they provide EPA with a schedule for
completing these submittals. These letters cautioned that EPA would,
within the near future, evaluate the states' schedule; and that if EPA
considered the schedule insufficiently expeditious, EPA would consider
beginning the process under CAA section 179(a)(1), described below, of
sanctioning states that fail to make required submittals.
The EPA regional offices and state officials discussed the states'
progress, and the states generally developed schedules for completing
the Phase I requirements.
Although EPA recognizes the continued progress states are making in
developing the required SIPs, EPA believes that in most cases, the
schedules presented by the states are not sufficiently expeditious for
the states to be considered in substantial compliance with the Phase I
deadlines.
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 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 or one or more elements of a plan
required under the CAA, is the finding relevant to this rulemaking.
Today, EPA is finding that 10 States and the District of Columbia
have failed to make required SIP submissions for 9 nonattainment areas.
If these States have 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 areas. If the
States have still not made a complete submission 6 months after the
offset sanction is imposed, then the highway funding sanction will
apply in the affected areas, in accordance with 40 CFR 52.31. In
addition, CAA section 110(c) provides that EPA promulgate a federal
implementation plan (FIP) no later than 2 years after a finding under
section 179(a).
[[Page 36294]]
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 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 2 years of EPA's finding.
At approximately the same time as the signing of this notice, EPA
Regional Administrators are sending letters to the 11 States describing
the status of the states' effort and these findings in more detail.
These letters, and the enclosures that they include, are included in
the docket to this rulemaking.
I. Final Action
A. Rule
Today, EPA is making findings of failure to submit for 9
nonattainment areas in 10 states and the District of Columbia, due to
failure to submit complete SIP revisions consisting of the following
three items: (i) A SIP provision requiring emission reductions of 9% in
ozone precursors from the end of 1996 to 1999; (ii) SIP commitments to
adopt an Attainment Demonstration; and (iii) SIP commitments to adopt
any additional rules needed to complete the requirements for ROP
reductions after 1999, and until the attainment date.
The states, nonattainment areas (and classification of the
nonattainment areas) that are receiving these findings are listed
below. Each state is receiving all three findings for each of its
areas, except that states with areas classified as serious are
receiving only the first two findings. Serious areas have an attainment
date of 1999, and thus are not required to submit ROP SIPs after 1999.
Connecticut: Greater CT Area (serious); New York-Northern New Jersey-
Long Island, NY-NJ-CT, Area (severe).
New Hampshire: Boston-Lawrence-Worcester, MA-NH, Area (serious);
Portsmouth-Dover-Rochester, NH, Area (serious).
New Jersey: New York-Northern New Jersey-Long Island, NY-NJ-CT, Area
(severe); Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD, Area (severe).
New York: New York-Northern New Jersey-Long Island, NY-NJ-CT, Area
(severe).
Delaware: Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD, Area (severe).
Maryland: Baltimore Area (severe); Philadelphia-Wilmington-Trenton, PA-
NJ-DE-MD, Area (severe); Washington, DC-MD-VA, Area (serious).
Virginia: Washington, DC-MD-VA, Area (serious).
District of Columbia: Washington, DC-MD-VA, Area (serious).
Illinois: Chicago-Gary-Lake County, IL-IN, Area (severe).
Indiana: Chicago-Gary-Lake County, IL-IN, Area (severe).
Wisconsin: Milwaukee-Racine, Area (severe).
B. Effective Date Under the Administrative Procedures Act
EPA has issued this action as a rulemaking because EPA has treated
this type of action as rulemaking in the past. However, EPA believes
that it would have the authority to issue this action in as an informal
adjudication, and is considering which administrative process--
rulemaking or informal adjudication--is appropriate for future actions
of this kind.
Because EPA is issuing this action as a rulemaking, the
Administrative Procedures Act (APA) applies.
Today's action will be effective on July 3, 1996. 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 the agency has
good cause to mandate an earlier effective date. Today's action
concerns SIP submissions that are already overdue; and EPA previously
cautioned the affected states that the SIP submissions were overdue and
that EPA was considering the action it is taking today. In addition,
today's action simply starts a ``clock'' that will not result in
sanctions against the states for 18 months, and that the states 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 notice 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).
D. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
E. Unfunded Mandates
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 of the UMRA, a small government
agency plan.
EPA has determined that today's action is not a Federal mandate.
The various CAA provisions discussed in this notice require the states
to submit SIPs. This notice merely provides a finding that the states
have not met those requirements. 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.
F. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
on small entities of any rule subject to the notice-and-comment
rulemaking requirements. Because this action is exempt from such
requirements, as described above, it is not subject to the RFA.
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G. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the APA, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA
submitted, by the effective date of this rule, 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. This rule is not a ``major rule'' as defined by APA
Sec. 804(2), as amended.
As noted above, EPA is issuing this action as rulemaking. There is
a question as to whether this action is a rule of ``particular
applicability'', under section 804(3)(A) of APA as amended by SBREFA--
and thus exempt from the congressional submission requirements--because
this rule applies only to named states. In this case, EPA has decided
to err on the side of submitting this rule to Congress, but will
continue to consider this issue of the scope of the exemption for rules
of ``particular applicability''.
H. 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.).
I. 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 District of Columbia
within 60 days of July 10, 1996.
Dated: July 3, 1996.
Mary D. Nichols,
Assistant Administrator.
[FR Doc. 96-17545 Filed 7-9-96; 8:45 am]
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