[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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