[Federal Register Volume 61, Number 193 (Thursday, October 3, 1996)]
[Rules and Regulations]
[Pages 51599-51611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25400]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[AZ033-0007 FRL-5628-6]


Approval and Promulgation of Implementation Plans; Arizona--
Maricopa Nonattainment Area; Carbon Monoxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving contingency measures adopted pursuant to the 
Clean Air Act (CAA) and submitted to EPA by the State of Arizona as 
revisions to the Arizona State Implementation Plan (SIP) for the 
Maricopa (Phoenix) carbon monoxide (CO) nonattainment area. Based on 
the approval of these measures, EPA is withdrawing its federal 
contingency process for the Maricopa area and its proposed list of 
highway projects subject to delay.

EFFECTIVE DATE: December 2, 1996.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, A-2-1, Air and Toxics 
Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne 
Street, San Francisco, California 94105, (415) 744-1248.

SUPPLEMENTARY INFORMATION:

I. Background

A. Federal Contingency Process

    On February 11, 1991, EPA disapproved elements of the Arizona CO 
SIP and promulgated a limited federal implementation plan (FIP) for the 
Maricopa County (Phoenix) CO nonattainment area in response to an order 
of the Ninth Circuit Court of Appeals in Delaney v. EPA, 898 F.2d 687 
(9th Cir. 1990).1 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).
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    \1\ While the FIP was promulgated after the enactment of the 
1990 Clean Air Act Amendments, it was designed, pursuant to the 
Delaney Court's order, to comply with the CAA and EPA guidance as 
they existed prior to the 1990 Amendments.
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    As required by the Delaney order, the FIP contained a two-part 
contingency process consistent with the Agency's 1982 ozone and CO SIP 
guidance regarding contingency procedures.2 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.
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    \2\ ``State Implementation Plans; Approval of 1982 Ozone and 
Carbon Monoxide Plan Revisions for Areas Needing an Attainment Date 
Extension. Final Policy.'' 46 FR 7182 at 7187, 7192 (January 22, 
1981) (hereafter referred to as ``1982 guidance'').
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    Implementation of the FIP contingency process was triggered by 
violations of the CO standard in Phoenix in December 1992. On June 28, 
1993 (58 FR 5458), EPA published a notice of proposed rulemaking 
proposing to find that the implementation plan was inadequate

[[Page 51600]]

and that additional control measures were necessary to attain and 
maintain the CO national ambient air quality standard (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 under the 1990 Clean Air Act Amendments 
for CO nonattainment areas classified as ``moderate'' such as 
Phoenix.3 See CAA section 186(a). As a result, EPA took no final 
action on the June 28, 1993 proposal and is today withdrawing that 
proposal.
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    \3\ At the time of the SIP submittals that are the subject of 
today's document, Phoenix was classified as moderate and, because 
its design value is under 12.7 ppm, was considered a low moderate 
area. EPA has recently found that the Phoenix area failed to attain 
the CO NAAQS by the statutory deadline. See 61 FR 39343 (July 29, 
1996) As a consequence of this finding, the area has been 
reclassified to ``serious'' under section 186(b)(2). As a result, 
the area is now subject to the section 187(b) requirements for 
serious CO areas. These requirements include those applicable to CO 
areas with design values between 12.7 ppm and 16.4 ppm (high 
moderate areas) in section 187(a). For the purpose of today's 
action, however, the relevant CAA requirements are those that apply 
to low moderate CO nonattainment areas. The serious area 
requirements are referred to throughout this notice when they inform 
individual discussions.
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B. CAA Contingency Requirements and EPA Guidance

    The Clean Air Act Amendments (CAAA) of 1990 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. See sections 171-193. A number of these provisions 
are discussed in detail in section III of this document.
    Among the new requirements in the 1990 CAAA is section 172(c)(9) 
which provides for contingency measures. Section 172(c)(9) requires 
that plans for nonattainment areas ``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.''
    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.'' 
See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 
1992) (hereafter ``General Preamble'') and the ``Technical Support 
Document to Aid the States with the Development of Carbon Monoxide 
State Implementation Plans,'' July 1992 (hereafter ``1992 TSD'').
    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 (high moderate areas). 
See 57 FR 13498, 13532-13533. As a low moderate area, section 187(a)(3) 
did not apply to Phoenix. In connection with the discussion of 
requirements for moderate ozone areas, the General Preamble addresses 
generally the section 172(c)(9) requirements which are also applicable 
to low moderate CO nonattainment areas such as Phoenix. 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.
    In the 1992 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.

II. Summary of Proposed Action

    On April 9, 1996 (61 FR 15745), EPA proposed to approve two 
contingency measures submitted by the State of Arizona for the Phoenix 
CO nonattainment area. These measures are enhancements to the State's 
remote sensing program for vehicle emissions and a traffic diversion 
measure. Both measures are described in detail in the proposal. See 61 
FR 15745 at 15746-15747 and 15749-15750. In the proposal, EPA also 
described in detail the SIP approval standards applicable to the 
State's contingency measure submittals. EPA proposed to conclude that 
the State's two contingency measures, when considered in conjunction 
with emission reductions expected to be achieved in 1996 and 1997 
through the continued implementation of the State's federally approved 
Vehicle Emission Inspection program (enhanced I/M program), met the 
requirements of section 172(c)(9) and other applicable provisions of 
the CAA. The Agency's preliminary analysis reaching that conclusion is 
set forth at 61 FR 15747-15750.
    Based on its approval of the State's contingency measures, EPA also 
proposed to withdraw the federal contingency process for the Maricopa 
area from the State's applicable implementation plan and to withdraw 
the list of highway projects subject to delay that was proposed on June 
28, 1993 (58 FR 5458).

III. Response to Comments Received on Proposal

    EPA received comments on its proposal from three groups: the 
Arizona Center for Law in the Public Interest (ACLPI), the Maricopa 
Association of Governments (MAG), and the Arizona Department of 
Environmental Quality (ADEQ). A summary of the ACLPI and MAG comments 
and EPA's responses to those comments follow. The comments submitted by 
ADEQ were not substantive and are therefore only addressed in the TSD.

A. Comments by the Arizona Center for Law in the Public Interest, May 
7, 1996

    Comment: ACLPI states that it is strongly opposed to EPA's proposed 
action and some of its reasons for this opposition are contained in its 
January 4, 1994 letter commenting on the EPA's December 12, 1993 
proposal (58 FR 64530). ACLPI requests that its previous comments of 
January 4, 1994 be incorporated by reference into this

[[Page 51601]]

rulemaking along with the docket for the December 12, 1993 proposal.
    Response: EPA has incorporated ACLPI's January 4, 1994 comment 
letter into the docket for this rulemaking and, to the extent that the 
comments are germane to this rulemaking, has responded to them below. 
The vast majority of ACLPI's 1994 comments dealt with the specific 
merits of EPA's proposed substitution of the Maricopa Association of 
Governments (MAG) contingency process and the State's gasoline 
volatility control measure for the FIP's contingency process and 
highway delays. Because EPA is not acting in this rulemaking on either 
the MAG process or the volatility control measure, most of ACLPI's 1994 
comments are not relevant to this action. ACLPI did comment at that 
time on the application of CAA section 193 to the FIP contingency 
process and has made almost identical comments on this action. EPA has 
responded to these comments below.
    It should be noted that EPA has not finalized the December 12, 1993 
proposal and has not done so for reasons unrelated to the comments 
received on the proposal. Because it is acting on an entirely different 
State submittal from the one it proposed to approve in December 1993, 
EPA does not believe that the rulemaking docket for that proposal, 
except for ACLPI's comment letter, is relevant to this document. 
Therefore, EPA has included in the docket for today's rulemaking only 
ACLPI's comment letter from the docket for the 1993 proposal.
    Comment: ACLPI comments that EPA's proposed action violates the 
CAA's antibacksliding clause. Under section 193 of the CAA, no control 
requirement in effect, or required to be adopted by an order in effect 
before the date of enactment of the 1990 CAAA in any nonattainment area 
may be modified in any manner unless the modification insures 
equivalent or greater emission reductions. The contingency provisions 
of the existing CO FIP were ordered by the Ninth Circuit prior to 
enactment of the 1990 CAAA (Delaney v. EPA, 898 F.2d 687, entered March 
1, 1990) and, therefore, according to ACLPI, cannot be modified without 
insuring equivalent or greater emission reductions. ACLPI asserts that 
the proposal does not assure equivalent or greater emission reductions 
and provides several grounds for this assertion.4
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    \4\ In extensive comments on this issue, ACLPI argues that the 
SIP contingency measures approved today cannot supplant the FIP 
contingency process because they do not assure equivalent or greater 
emission reductions as required by section 193. Because EPA does not 
agree, as discussed below, with ACLPI's basic premise that the FIP 
contingency process is a control requirement within the meaning of 
section 193, for which equivalent emissions would otherwise be 
required prior to substitution, the Agency is not addressing ACLPI's 
equivalency arguments in today's notice.
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    ACLPI also disagrees with the Agency's statement that section 193 
does not apply to the FIP contingency provisions because those 
provisions constitute ``procedures'' rather than ``control 
requirements.'' ACLPI claims that the FIP provisions are not merely 
procedural but are also substantive because they mandate EPA adoption 
of specific control measures adequate to produce attainment and delay 
of road projects. The FIP contingency provisions have already been 
triggered.
    Further, ACLPI does not agree that the control requirements 
preserved by section 193 are limited to measures that have previously 
been identified and defined in detail, or that the term ``control 
requirement'' excludes mandated procedures. ACLPI argues that no such 
limitation appears in the language of the statute and such limitation 
would sharply conflict with the statutory purpose-namely to prevent 
backsliding. ACLPI believes that EPA's construction also conflicts with 
the Agency's own policies and guidelines and with the Act itself, all 
of which require implementation plans to include both procedural and 
substantive provisions, and which treat both as enforceable control 
requirements.
    Response: ACLPI made the same comments regarding the applicability 
of section 193 to the FIP in its January 4, 1994 comment letter. The 
following discussion is a response to both the 1994 and 1996 comments.
    EPA addressed the relevancy of section 193 to its proposed action 
in the April 9, 1996 notice (61 FR 15748-49). The Agency concluded that 
the FIP contingency process does not constitute a ``control 
requirement'' within the meaning of section 193 of the Act (see 
footnote 10 for the text of section 193) and provided its reasoning. 
EPA elaborates here on its section 193 discussion in the proposal.
    The contingency process contained in the Maricopa CO FIP was 
required by a March 1, 1990 order of the Ninth Circuit--before the 
enactment of the CAAA on November 15, 1990. Having concluded that 
Maricopa's pre-amendment CO plan did not contain contingency procedures 
that met EPA's 1982 guidance, the Ninth Circuit ordered EPA to 
promulgate a FIP that contained contingency procedures in accordance 
with that guidance. Delaney, at 695. The Court, however, did not order 
EPA to implement that process or to promulgate any specified control 
requirements in that plan. Indeed, the inclusion of any specific 
control requirements by EPA would have been inconsistent with the terms 
and intent of EPA's 1982 guidance on contingency procedures. EPA's 1982 
guidance required a two-part contingency plan:

    ``The first part * * * [is] a list of planned transportation 
measures and projects that may adversely affect air quality and that 
will be delayed, while the SIP is being revised, if expected 
emission reductions or air quality improvements do not occur. The 
second part * * * consists of a description of the process that will 
be used to determine and implement additional transportation 
measures beneficial to air quality that will compensate for the 
unanticipated shortfalls in emission reductions. (45 FR 7187)

    A list of highway projects that may be delayed and a description of 
actions that may occur at some later date are not control requirements. 
A list and a description have no air quality impacts and yield no 
emission reductions. Nor do they have any potential for either air 
quality impacts or emission reductions until and unless they are 
triggered by ``unanticipated shortfalls in emission reductions.'' Even 
triggered, the particular contingency process in the Maricopa FIP is 
not a control requirement within the meaning of section 193.
    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 
may involve, among other things, various assessments and findings, air 
quality modeling, and the review and the potential 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. See 56 FR 5471-5472.
    Likewise, the highway delay provision in the FIP contingency 
process involves the development of a new list of highway projects with 
potentially adverse air quality impacts and triggering of project 
delays only if certain findings are made as part of the overall 
contingency process. Since it is not known in advance what projects, if 
any, will be listed and whether any projects will be delayed, the scope 
of highway delays is also not predictable. Additionally, because the 
contingency process only requires the delay of highway project 
construction and not elimination of the projects altogether,

[[Page 51602]]

the long-term direct impact on air quality and attainment--good or 
bad--is also extremely uncertain.5
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    \5\ ACLPI notes (repeating an EPA statement) that the highway 
delay provision provides an important coercive benefit in inducing 
the State to adopt control measures. However, if the primary impact 
of the highway delay provision is to leverage State controls, then 
the provision is best characterized, in this context, as a sanction 
and not as a control requirement.
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    While the term ``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 limitation on a smoke stack at a 
power plant. By contrast, a contingency process, as outlined by EPA's 
1982 guidance, is much broader and more far-reaching than a simple, 
quantifiable control limitation.6
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    \6\ It is instructive to contrast the FIP contingency process, 
and EPA's 1982 guidance on which it is based, with the new 
contingency measure requirements in the 1990 CAAA. For example, 
section 172(c)(9) requires all nonattainment area plans to provide 
for the implementation of specific measures to be undertaken if the 
area fails to attain the NAAQS by the applicable attainment date. 
See also sections 187(a)(3) and 182(c)(9). The remainder of this 
discussion refers primarily to section 172(c)(9) because, as stated 
before, it is the only contingency measure requirement that applies 
to Maricopa.
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    It should also be noted that the use of the term ``control 
requirement'' in the Act is unique to section 193. Its closest parallel 
is the use of the term ``control measures'' in various provisions of 
the statute. The term ``control measures'' in these provisions clearly 
means direct, effective, enforceable controls on sources of air 
pollution (such as reasonably available control technologies or 
transportation control measures) and not procedures for the adoption of 
such controls.7
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    \7\ Wherever the statute mandates ``control measures'' it is 
clear that it is speaking in terms of discrete means or techniques 
of controlling emissions from particular sources. For instance, 
section 110(a)(2)(A) requires state implementation plans to include 
enforceable emission limitations ``and other control measures, 
means, or techniques * * *'' as are necessary to attain the national 
standards. All state plans for nonattainment areas must also provide 
``for the implementation of all 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).'' Section 
172(c)(1). See also section 172(c)(6).
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    EPA also disagrees with ACLPI that the failure to include the FIP 
procedures or process within the meaning of section 193's ``control 
requirement'' conflicts with the statutory purpose of preventing 
backsliding by assuring that modifications will not occur without the 
substitution of equivalent or greater emission reductions. This 
argument would have some merit if section 193 were the sole savings 
clause in the Act. The Act, however, has other savings clauses, 
including section 110(n) which specifically applies to all plan 
elements, procedural or otherwise. Moreover, a procedure per se does 
not yield emission reductions. For example, the FIP contingency process 
is just as likely to conclude with no additional emission 
reductions.8 Similarly, as discussed above, highway delays may 
result in no emission reductions.
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    \8\ See, for example, the end of section (a) under Determination 
of the Need for Additional Measures (56 FR 5471):
    Should the Agency find that no additional measures are needed, 
the [Notice of Final Rulemaking] shall contain this finding and 
conclude the contingency process.
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    EPA agrees with ACLPI that the Agency's own policies and guidelines 
require implementation plans to include both procedural and substantive 
provisions and that the Agency considers both as enforceable elements 
of SIPs. The fact that a particular provision is enforceable, however, 
does not automatically make it a control requirement. Under section 
113(a), EPA can enforce ``any requirement or prohibition of an 
applicable implementation plan.'' There is no requirement that such 
provisions be considered to be ``control requirements'' in order to be 
enforceable.9
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    \9\ See also section 118(a) of the CAA which requires compliance 
with all requirements whether substantive or procedural.
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    In summary, 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.
    There is simply no evidence that Congress intended ``control 
requirement'' to encompass a process as complex and broad as the FIP 
contingency procedures. Indeed it is fundamental that the words of a 
statute are to be given their ordinary, plain meaning unless it is 
clear that some other meaning is intended. See Columbia Pictures 
Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278, 
280 n. 4 (9th Cir. 1989); Arizona Elec. Power Coop., Inc. v. United 
States, 816 F.2d 1366, 1375 (9th Cir. 1987), cert. denied, 488 U.S. 818 
(1988). EPA's interpretation of the savings clause is in full accord 
with the plain language of section 193. Under the standard articulated 
in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), where Congress has 
spoken directly on an issue, that is the end of the matter.
    Beyond the plain language, 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. Under the pre-1990 Act, 
nonattainment areas were not classified according to the severity of 
their air quality problems. An area found to have failed to attain by 
the applicable attainment deadline was subject only to a SIP call under 
pre-amended section 110. The pre-amended Act contained no provisions 
for contingency procedures or measures. Therefore, EPA added 
administratively in the 1982 guidance a SIP process that included, 
among other things, a delay of highway projects that could adversely 
affect air quality while the SIP was being revised in response to a SIP 
call.
    In contrast, under the 1990 CAAA, a finding of failure to attain by 
the applicable attainment date for any area triggers the implementation 
of discrete contingency measures under new section 172(c)(9) and also 
results in the area being reclassified. The reclassification in turn 
results in a new attainment deadline and more stringent planning 
requirements to be submitted on a date certain. See e.g., sections 
186(b)(2), 186(c) and 187(f). The eternal retention of the FIP 
contingency process (or its equivalent) in the applicable plan would 
forever overlay its outdated and inconsistent planning scenario on to 
the new statutory scheme.
    The FIP contingency process was never grounded in a statutory 
requirement but was rather based on guidance designed to fill a 
perceived gap in the absence of a statutory requirement. In 1990, 
Congress remedied that omission by adding both section 172(c)(9) to 
fill that gap and a new scheme for additional planning for areas 
failing to attain the NAAQS. As discussed above and further below, 
EPA's pre-amendment contingency guidance is inconsistent with this new 
statutory scheme and thus became ineffective under section 193 upon 
enactment of the CAAA.10 EPA affirmed

[[Page 51603]]

this position in the General Preamble. See General Preamble at 57 FR 
13498, 13511 and 13532. It is axiomatic that two parts of a single 
statutory section cannot be read to have opposite effects. Since the 
first sentence of section 193 renders ineffective the 1982 guidance for 
contingency processes, the second sentence cannot be read to retain a 
requirement that is intimately based on that 1982 guidance.
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    \10\ Section 193 states:
    Each regulation, standard, rule, notice, order and guidance 
promulgated or issued by the Administrator as in effect before 
November 15, 1990 shall remain in effect according to its terms, 
except to the extent otherwise provided under this chapter, 
inconsistent with any provision of this chapter, or revised by the 
Administrator. No 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. (Emphasis added).
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    Both the plain language of section 193 and the new statutory scheme 
support EPA's interpretation that the FIP contingency process is not 
saved. If, however, there is any ambiguity in the savings clause, EPA's 
interpretation of section 193 is reasonable, consistent with the 
language and revised structure of the Act, and serves to advance the 
goals of the statute. Therefore, it is a permissible construction 
entitled to considerable deference. Chevron, 467 U.S. at 844.
    Comment: ACLPI disagrees with EPA's suggestion that the contingency 
mandate in section 172(c)(9) supplants the FIP contingency provisions 
and EPA's pre-amendment contingency guidance. ACLPI asserts that there 
is nothing in the Act or its legislative history to suggest such a 
result and such a result would be contrary to sections 110(n), 193, and 
other provisions of the Act. Therefore, according to ACLPI, the section 
172(c)(9) mandate is in addition to, and not in lieu of pre-existing 
control requirements. ACLPI concludes that in enacting the 1990 
Amendments, Congress made clear that it intended to strengthen the Act, 
and preserve preexisting control requirements to ensure maximum 
progress toward clean air.
    Response: As discussed previously, the Agency's 1982 contingency 
guidance was an effort by EPA to fill a gap in the statute as it 
existed prior to the 1990 CAAA. The pre-amended Act contained no 
requirement for contingency provisions in non-attainment area plans. In 
amending the Act in 1990 to explicitly include a requirement for 
specific contingency measures in section 172(c)(9), Congress clearly 
anticipated that EPA would update its nonattainment area guidance to 
reflect the new statutory scheme.11 There is nothing in the 
language or structure of the 1990 Amendments or their legislative 
history to suggest that Congress intended to reaffirm EPA's 1982 
guidance regarding appropriate contingency procedures. On the contrary, 
by providing explicit contingency measure requirements that differed 
from that guidance, if anything, it can be concluded that Congress 
intended to overrule the 1982 guidance in the 1990 Amendments.
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    \11\ Additional contingency provisions for certain moderate CO 
nonattainment areas are found in section 187(a)(3). See also 
contingency provisions in section 182(c)(9) for certain ozone 
nonattainment areas.
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    Moreover, the amended Act and EPA's pre-amendment contingency 
guidance are in fact both duplicative and inconsistent and thus made 
ineffective by section 193 on enactment of the CAAA. See footnote 10. 
EPA's 1982 contingency guidance required the State to invoke a new 
planning process if the SIP was inadequate for attainment. In the 1990 
Amendments, Congress established a different scheme for areas that 
failed to attain.12 The new contingency measure provisions serve a 
different purpose than EPA's pre-amendment guidance in that they call 
for immediate implementation of already adopted control measures. 
Consistent with the new scheme for implementation of contingency 
measures and reclassification with new planning requirements for areas 
that fail to attain, EPA stated that its pre-amendment guidance had 
been superseded. See General Preamble at 13498, 13511, and 13532. Such 
statements are reasonable in light of the 1990 Amendments and was 
within EPA's discretion. See Ober v. EPA, 84 F.3d 304, 311-312 (9th 
Cir. 1996).
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    \12\ EPA's 1982 policy stated that ``the contingency provision 
must be initiated when the EPA Administrator determines that a SIP 
is inadequate to attain NAAQS and additional emission reductions are 
necessary.'' 46 FR 7187. In the 1990 Amendments, Congress in section 
186(b)(2)(A) required EPA to determine within 6 months of an area's 
attainment date whether the area has attained the CO standard and, 
should EPA find a failure to attain, the area is reclassified by 
operation of law to serious, triggering new planning requirements 
under section 187(f). Under section 172(c)(9), contingency measures 
are also triggered if an area fails to attain.
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    Furthermore, neither section 193 nor section 110(n) of the Act bars 
revisions to EPA's 1982 contingency guidance as ACLPI suggests. Both 
sections provide for revisions to EPA guidance and SIPs upon 
affirmative action by the Administrator.13
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    \13\ Section 110(n)(1) states that ``[a]ny provision of any 
applicable implementation plan that was approved or promulgated by 
the Administrator pursuant to this section as in effect before 
November 15, 1990, shall remain in effect as part of such 
implementation plan, except to the extent that a revision to such 
provision is approved or promulgated by the Administrator pursuant 
to this chapter.'' (Emphasis added). However, the FIP contingency 
provisions were not promulgated as a part of the Arizona applicable 
implementation plan until February 11, 1991, and therefore are 
clearly not subject to section 110(n)(1). Further, even if this 
section applied to the FIP contingency process, it would, by its 
terms, present no impediment to EPA's withdrawal of the FIP process. 
See footnote 10 for the text of section 193.
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    Comment: ACLPI also disagrees with EPA's proposed interpretation of 
section 172(c)(9) as requiring only such SIP contingency measures as 
necessary to offset one year's growth in vehicle miles traveled (VMT). 
ACLPI claims that the focus of section 172(c)(9), other provisions of 
172, and section 110 is on timely attainment and achievement of 
reasonable further progress (RFP)--not on VMT offsets. Thus ACLPI 
states that contingency measures must be adequate to make up the 
entirety of any potential emission reduction shortfall. ACLPI further 
asserts that EPA's proposed approach would allow states to defer 
attainment and RFP. It also allegedly allows states to defer attainment 
to the deadline for the new classification, even if additional 
contingency measures could produce attainment much sooner.
    Response: First, it should be noted that there is nothing in the 
plain language of section 172(c)(9) or any other provision of the Act 
to support ACLPI's contention that contingency measures must be 
adequate to make up the entirety of any potential emission reduction 
shortfall. Indeed, such an interpretation makes no sense when 
considered in the context of the new statutory scheme. Because section 
172(c)(9) does not specify either the number or type of contingency 
measures required, EPA's reasonable interpretation of the required 
measures should receive deference. Chevron, 467 U.S. at 844.
    As discussed before, section 172 and the pollutant-specific 
requirements in sections 181 through 189 establish a basic 
classification scheme and associated planning cycles. This scheme 
started with the original classifications of nonattainment areas 
following enactment. An area's initial classification established its 
attainment deadline and the initial elements of its plan. Sections 181, 
186, and 188 all require EPA to review an area's air quality after the 
passage of its attainment date to determine if an area in fact attained 
by its deadline. If the Agency finds that an area has not attained, 
then the area is reclassified to the next higher classification by 
operation of law.
    This reclassification triggers new planning requirements that in 
all cases lead to the development of new attainment and RFP 
demonstrations. The role of the section 172(c)(9) measures in this 
scheme is to assure areas do not lose ground during the period that 
they are developing these new plans. It is not the role of these

[[Page 51604]]

measures to replace or accelerate the development of the new plans. To 
require the section 172(c)(9) contingency measures to be adequate to 
make up the entirety of any potential emission reduction shortfall 
would in fact result in replacing the reclassification scheme in part D 
with just section 172(c)(9).14 Such a result is clearly not what 
Congress intended. Thus it is the basic statutory structure, and not 
EPA's approach, that allows states to defer attainment to the deadline 
for the new classification.15
---------------------------------------------------------------------------

    \14\ The fact that Congress did not intend section 172(c)(9) 
contingency measures to entirely make up any shortfall needed for 
attainment of the CO standard is made even clearer by section 
187(g). Section 187(g) requires submittal, nine months after EPA 
determines that a serious CO nonattainment area failed to attain by 
December 31, 2000, of controls sufficient to demonstrate a five 
percent per year reduction in CO emission until attainment occurs. 
If section 172(c)(9) were intended to require immediate 
implementation of measures sufficient to correct any attainment 
shortfall, then section 187(g) would not be necessary.
    \15\ Note, however, that the attainment deadline for the new 
classification is not a fixed date providing a number of additional 
years while attainment is reached; rather the deadline is ``as 
expeditiously as practicable but not later than'' a fixed date. If 
practicable controls can bring an area into attainment prior to the 
fixed date, they must be implemented to achieve earlier attainment.
---------------------------------------------------------------------------

    Regarding ACLPI's disagreement with EPA's use of one year's growth 
in VMT as a benchmark for the amount of emission reductions section 
172(c)(9) measures should achieve,16 it should be noted that EPA 
went beyond the suggested approach in the 1992 TSD. EPA showed in its 
proposal that the State's contingency measures coupled with continuing 
emission reductions from the State's enhanced inspection and 
maintenance program (as well as other measures whose effectiveness was 
built into the baseline) provided sufficient emission reductions to 
offset on-road mobile source emissions growth during the period of time 
that the Phoenix area would be developing its serious area attainment 
plan (i.e., from early 1996 until late 1997).
---------------------------------------------------------------------------

    \16\ See section I.B. of this notice.
---------------------------------------------------------------------------

    EPA agrees with ACLPI that the primary thrust of sections 110 and 
172 of the Act is for timely attainment and achievement of RFP and not 
on VMT offsets. It, however, is an indisputable fact that the bulk of 
CO emissions in Phoenix (as in the vast majority of CO nonattainment 
areas) are from motor vehicles and the main culprit behind increases in 
overall CO levels is growth in vehicle usage. It is, therefore, 
reasonable to relate needed emission reductions from contingency 
measures to the factor that most influences emissions growth, that is 
vehicle miles traveled. Thus EPA's guidance on contingency measures in 
the General Preamble and the 1992 TSD is reasonable.
    On the other hand, as discussed above, EPA does not agree with 
ACLPI that the purpose of section 172(c)(9) is to alone assure 
attainment of the standard or RFP. To read that purpose into section 
172(c)(9) is to ignore the broader reclassification and new planning 
requirements scheme in part D of title I of the Act. For the foregoing 
reasons, EPA believes that its interpretation of section 172(c)(9) is 
reasonable and, as such, is entitled to considerable deference. 
Chevron, 467 U.S. at 844.
    Comment: ACLPI also comments that the State is not eligible to base 
its contingency measures on EPA's VMT emission offset policy. According 
to the General Preamble, that policy applies where failure to timely 
attain or achieve RFP is due to ``exceedence of a VMT forecast'' and 
the State has made no claim or showing that its failure to timely 
attain or achieve RFP is due to exceedence of a VMT forecast. ACLPI 
cites 57 FR 13532 for this policy.
    Response: The section of the General Preamble cited by ACLPI 
addresses the contingency requirement in section 187(a)(3) for high 
moderate CO nonattainment areas. Section 187(a)(3) requires CO 
nonattainment areas with design values of 12.7 ppm or higher (that is, 
high moderate areas) to provide for the implementation of specific 
measures to be undertaken if any estimate of VMT exceeds forecasts. 
Section 187(a)(3) is a companion requirement to section 187(a)(2)(A) 
which requires high moderate areas to forecast VMT for each year before 
the attainment year and annually update those forecasts. Because 
section 187(a)(3) contingency measures are triggered by higher than 
expected VMT growth, it is reasonable to link its contingency measure 
requirement to annual VMT growth. However, section 187(a)(3) and the 
cited section of the General Preamble concern contingency requirements 
applicable only to high moderate nonattainment areas whereas Phoenix is 
a low moderate area. As stated previously, neither the statute nor the 
General Preamble addresses how many contingency measures or emission 
reductions from them are necessary in low moderate CO areas. EPA's 
interpretation of the statute, which has been shown above to be 
reasonable, for these areas is only in the 1992 TSD.
    Comment: ACLPI comments that just offsetting one year's growth in 
VMT does not even assure EPA's stated goal--namely, to prevent air 
quality from worsening while the SIP is being revised. ACLPI points out 
that on-road mobile sources in Phoenix contribute only about 70 percent 
of the total emission inventory; therefore, there is no assurance 
whatsoever that RFP will be maintained merely because VMT-related 
emission increases are offset.17
---------------------------------------------------------------------------

    \17\ Although acknowledging that EPA's action is limited to CO, 
ACLPI also comments on the Agency's section 172(c)(9) policy as it 
relates to ozone. Because today's action concerns only CO 
contingency measures, these comments are not germane and need not be 
addressed here.
---------------------------------------------------------------------------

    Response: The 70 percent figure for on-road mobile sources is the 
contribution of this source category to the 1990 base year annual daily 
CO season emissions inventory (found on page 3.3 of the MAG 1993 CO 
Plan for the Maricopa County Area, November 1993). EPA believes that 
the purpose of section 172(c)(9) for contingency measures is to prevent 
air quality from worsening while the SIP is being revised. EPA's 
calculations indicate that during this period total CO emissions will 
not increase and the State's contingency measures therefore are 
sufficient to accomplish that purpose. See the TSD for this rulemaking. 
As discussed below, EPA does not believe that section 172(c)(9) 
measures are required to assure RFP.
    Comment: ACLPI requests the entirety of the MAG 1993 Carbon 
Monoxide Plan for the Maricopa County Area (November 1993) as well as 
the March 1994 Addendum to that Plan be incorporated by reference into 
the record for this rulemaking.
    Response: EPA has not relied on substantial portions of the MAG 
1993 CO Plan for its action in this rulemaking and declines to 
incorporate the entire plan into its rulemaking docket.18 The 
March 1994 Addendum and relevant excerpts from the MAG 1993 CO Plan are 
already included in the docket for the proposal. EPA is also 
incorporating by reference the rulemaking docket for its proposed 
approval of the Phoenix area's CO inventory. This docket includes 
additional portions of the MAG 1993 CO Plan. EPA has included all 
applicable portions of the plan in the docket for today's rulemaking.
---------------------------------------------------------------------------

    \18\ Section 307(d)(3) requires the docket accompanying a 
proposed Agency action to include all data, information, and 
documents on which the proposed rule relies. Section 307(d)(4)(B)(i) 
requires the final docket to include all comments received on the 
proposed rulemaking, the transcript of any public hearings, as well 
as any documents which become available after the proposed has been 
published and which EPA determines are of central relevance to the 
rulemaking.
---------------------------------------------------------------------------

    Comment: ACLPI comments that even if an offset of emissions from 
one year's VMT growth were sufficient to assure RFP in that year, it 
would not assure continued RFP during the entire period

[[Page 51605]]

that the SIP is being revised. EPA is apparently planning to give the 
State 18 months to revise the SIP and the normal approval process will 
protract this SIP revision period even further.
    Response: ACLPI misinterprets the RFP requirements of the CAA. 
Sections 172(c)(2) and 171(1) require ``such annual incremental 
reductions in emissions * * * for the purpose of ensuring attainment of 
the applicable national ambient air quality standard by the applicable 
attainment date'' (Emphasis added). Thus the moderate area plan for 
Phoenix was required to assure RFP through 1995, the moderate area 
attainment deadline under section 186(a)(1).19 However, since the 
area has now been reclassified, additional RFP requirements apply to 
the serious area plan. In the interim, the section 172(c)(9) 
contingency measures will ensure that air quality does not deteriorate 
while the plan is being revised. There is nothing in the language of 
that section to suggest that the contingency measures are expected to 
assure RFP during this period.
---------------------------------------------------------------------------

    \19\ On August 9, 1993, EPA issued a SIP call under section 
110(k)(5) of the CAA that required Arizona to submit a plan to EPA 
that demonstrated attainment of the CO NAAQS by December 31, 1995. 
As an area with a design value under 12.7 ppm, the State would not 
otherwise have been required to submit an attainment plan, including 
an RFP demonstration, for the Phoenix area. See section 187(a).
---------------------------------------------------------------------------

    EPA does not believe that EPA's approval process can be reasonably 
interpreted to ``protract the SIP revision process'' as ACLPI suggests. 
Revision of the SIP clearly relates to the State's actions to develop 
and submit rather than EPA's actions to approve or disapprove. 
Moreover, the vast majority of State control measures do not depend 
upon EPA's approval of them into the SIP to be implemented and 
effective.20 Therefore, it is appropriate to consider the 
contingency period to run only until the date the State is required to 
submit its serious area plan with its accompanying control measures. As 
discussed above, EPA has concluded that there will be sufficient 
emission reductions during 1996 and 1997 to offset all emissions growth 
while the plan is being revised.
---------------------------------------------------------------------------

    \20\ Even the contingency measures that are the subject of this 
rulemaking did not require EPA's formal approval into the SIP in 
order to be triggered. EPA triggered their implementation when its 
finding that the Phoenix area failed to attain the CO standard 
became effective on August 28, 1996.
---------------------------------------------------------------------------

    Comment: ACLPI comments that the Arizona's contingency measures 
also fail the Act's contingency requirements because there are no 
contingency measures for the contingency measures and if the first 
contingency measures do not achieve the emission reductions expected of 
them then there is no assurance that an offset of emissions from VMT 
growth will be achieved, even in the first year.
    Response: It would be an absurd reading of the Act to conclude that 
contingency measures need their own contingency measures. The only 
reading of the Act for which such an interpretation would make any 
sense is the one that EPA has already rejected for the reasons 
explained above: that section 172(c)(9) requires sufficient measures to 
immediately make up any potential shortfall in attainment or RFP. As 
discussed earlier, the purpose of the section 172(c)(9) contingency 
measures is to assure that air quality does not worsen during the 
period a new plan is being developed. This new plan will necessarily 
evaluate the existing situation, including any failure of contingency 
measures to achieve emission reductions, and factor the effectiveness 
of existing controls into determining the additional controls necessary 
for attainment.
    Comment: ACLPI comments that in proposing to find that the State's 
contingency measures will offset emissions from one year's VMT growth, 
EPA relies primarily on emission reductions from the State's enhanced 
I/M program. ACLPI asserts that this reliance is misplaced for several 
reasons. First, the enhanced I/M program is not a contingency measure, 
rather it is one of the primary strategies included in the SIP and the 
State has already claimed emission reductions from this strategy in the 
SIP attainment and maintenance demonstration. ACLPI claims that EPA 
cannot now convert the program to a contingency measure to create an 
offset of VMT emission increases.
    Response: EPA did not claim that the Arizona's enhanced I/M program 
is a section 172(c)(9) contingency measure, just that it contributes to 
reducing emissions during the contingency (SIP revision) period. In 
establishing a benchmark of one year's growth in VMT for these 
measures, EPA intended that 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. As discussed above, 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.
    While the State explicitly identified in the proposal emission 
reductions from its enhanced I/M program in determining that the 
contingency measures are adequate to maintain the area at or below 1995 
levels during the contingency period, it need not have done so. In 
order to make this determination, the State calculated the baseline 
emissions level, i.e., the emissions level expected in the year after 
the attainment deadline prior to the implementation of the contingency 
measures. Rather than incorporating emission reductions from the 
enhanced I/M program into the baseline, the State chose to explicitly 
account for reductions from the program.21 If the State had 
incorporated the emission reductions from the enhanced I/M program into 
the baseline emissions level, the determination that the contingency 
measures are adequate would have been the same. The difference between 
explicitly accounting for reductions from the program or implicitly 
including them in the emission baseline is simply the method of 
bookkeeping.
---------------------------------------------------------------------------

    \21\ In fact, there are emission reductions anticipated to occur 
after the attainment deadline year from numerous measures whose 
effects are assumed in the baseline emissions. These measures 
include federal tailpipe standards, oxygenated gasoline, basic I/M, 
RVP limitations, and transportation control measures.
---------------------------------------------------------------------------

    Comment: ACLPI comments that neither the state nor EPA has provided 
viable technical justifications for the emission reductions claimed 
from the enhanced I/M and enhanced remote sensing programs. There is no 
explanation of how the State arrived at the estimated effectiveness 
percentages for these programs. ACLPI asserts that under EPA guidelines 
and rules, as well as general principles of administrative law, EPA 
cannot credit these measures with emission reductions without a sound, 
thoroughly justified technical basis for the level of reductions being 
claimed. The State now has considerable experience with both remote 
sensing and enhanced I/M in 1995 and should be required to provide 
evidence of their actual performance as proof of their emission 
reduction potential.
    Response: EPA does not believe the State must submit evidence of 
the actual performance of the enhanced I/M and remote sensing programs 
to support their estimated emission reduction potential. For both the 
enhanced I/M

[[Page 51606]]

and enhanced remote sensing programs, the State used EPA's MOBILE5A 
model to calculate emission reductions. The MOBILE5A inputs used to 
generate the reduction estimates for enhanced I/M and the methodology 
and assumptions used to estimate the effectiveness of the enhanced 
remote sensing program are also provided in the 1994 Addendum at pp. 3-
191 and 3-201, respectively. EPA requires the use of its latest mobile 
sources emissions model (in this case,the MOBILE5A)to determine credits 
for I/M programs. See 40 CFR 51.351(a) and 51.352(a).22 The MOBILE 
models have been the standard methodology for this purpose for more 
than a decade and EPA does not believe that it should or can require 
States to independently validate the accuracy of the model.
---------------------------------------------------------------------------

    \22\ Remote sensing programs are components and are means of 
increasing the effectiveness of I/M programs; therefore, emission 
reduction estimates for these programs are also calculated using 
MOBILE5a consistent with EPA guidance.
---------------------------------------------------------------------------

    Comment: ACLPI comments that a related and equally serious flaw is 
the State's reliance on the air quality modeling in the 1994 Addendum 
that has not been reviewed and approved by EPA as part of the SIP 
review process. Stating that EPA has neither proposed to approve that 
modeling nor has it evaluated that modeling in the context of this 
rulemaking, ACLPI maintains that if EPA is going to rely on the State's 
CO modeling, it must first specifically propose approval of that 
modeling and allow public comment on it.
    ACLPI also comments that the emission reductions from the control 
measures are not adequate. ACLPI states that the State contends that 
emission reductions from the contingency measures and enhanced I/M will 
be sufficient to offset increased emissions from VMT growth and bases 
this claim on its projections of on-road mobile source emissions and 
its estimates of emission reductions from contingency and enhanced I/M 
measures. ACLPI claims that aside from the lack of substantiation for 
the latter, the projections of mobile source emissions are not 
supported by EPA-approved emissions inventories and VMT projections. 
The State is relying on the emission inventory and VMT projections in 
the MAG 1993 CO Plan for Phoenix, but EPA has not yet even proposed 
approval of those components of the Plan. ACLPI further states that the 
Agency cannot simply assume that the State's inventory and VMT 
projections are accurate, particularly when the State's attainment 
projections (based on this inventory) have proven to be incorrect nor 
can EPA simply approve these items at this stage of the rulemaking. 
ACLPI concludes that because a current, accurate emissions inventory is 
a mandated component of the SIP, EPA must first propose approval or 
disapproval of the inventory and provide an opportunity for public 
comment.
    Response: EPA has relied on the base year and 1995 projected year 
emission inventories in the 1993 CO plan and 1994 Addendum in this 
rulemaking and has recently proposed to approve the base year inventory 
as meeting the requirements of sections 172(c)(3) and 187(a)(1) and 
EPA's guidelines. Because it is closely related to the base year 
inventory, EPA has also fully evaluated the 1995 projected year 
inventory against applicable guidelines as part of its rulemaking on 
the base year inventory and has found that that inventory conforms to 
these guidelines. EPA's evaluation of the projected inventory can be 
found in the draft TSD available for public comment in the docket for 
the proposed emission inventory approval. Should EPA ultimately 
disapprove the base year inventory in response to public comments on 
its proposed approval or re-evaluate its finding on the projected 
inventory, the Agency will consider the effect, if any, of such an 
action on this rulemaking and revise it if appropriate.
    EPA, however, has not relied on the air quality modeling in either 
the 1993 CO plan or the 1994 Addendum for this rulemaking. Since the 
adequacy of contingency measures is based on their effect on emission 
levels and not on ambient air quality levels, air quality modeling does 
not factor into the adequacy determination. While contingency measures 
are triggered by a failure to attain the NAAQS, that determination is 
based solely on monitored air quality and not on modeled air quality.
    Comment: ACLPI noted that the Arizona legislature had recently 
repealed the funding for the State's I/M program. It also stated that 
the State had not identified the financial and manpower resources 
necessary to implement enhanced remote sensing, nor provide legal 
commitments to adequately fund and staff that measure. Under EPA 
guidelines and rules, as well as section 110 of the Act, EPA cannot 
approve, or credit the State with emission reductions for the measures 
without funding or commitments.
    Response: On July 18, 1996 the Governor of Arizona signed Arizona 
Senate Bill 1002 (42nd Legislature, 1st Special Session). Section 51 of 
the bill provided $4.3 million to fund the State's Vehicle Emissions 
Inspection Program (including its enhanced remote sensing component) 
23 through June 30, 1997. See section 51 of the bill. The bill 
also includes a statement of intent that the program become self-
funding from July 1, 1997 on.24 See section 52 of the bill. While 
there is no longer an explicit funding source identified for the 
program beyond the middle of 1997, EPA believes there are adequate 
grounds, based on past practice and the contribution of test fees to 
the administration of the program, to believe the program will continue 
operating at its current level without interruption. Arizona's I/M 
program has been in operation since 1976, is a key element of both the 
State's ozone and CO control strategies, and is a model for the rest of 
the Country.
---------------------------------------------------------------------------

    \23\ There is a tendency to refer to the components of Arizona's 
Vehicle Emission Inspection Program (VEIP) as if they are separate 
and distinct programs. This is done primarily to identify the 
additional emission reduction benefits that each new component adds 
to the overall VEIP. Arizona VEIP is operated and funded as a single 
program with multiple components including enhanced I/M, basic I/M, 
diesel I/M, and remote sensing. See EPA's approval of Arizona's 
VEIP, 60 FR 22520 (May 8, 1995).
    \24\ It should be noted that the program is already partially 
funded by fees charged for vehicle emission inspections. The 
legislative appropriation covers the shortfall between the fees and 
the cost to run the program.
---------------------------------------------------------------------------

    EPA approved Arizona's basic and enhanced I/M program on May 8, 
1995 (60 FR 22518). As part of that approval, EPA evaluated the program 
against the requirements in 40 CFR 51.354 which requires that the State 
demonstrate that appropriate administrative, budgetary, personnel, and 
equipment resources have been allocated to the program.25 At that 
time, EPA concluded that the funding mechanism met EPA's requirements 
for I/M programs. Despite the recent turbulence in the funding for the 
program, EPA believes its evaluation is still correct. Should EPA in 
the future find that funding is not forthcoming for the program, EPA 
would issue a SIP call based on failure to implement the program under 
section 110(k)(5).
---------------------------------------------------------------------------

    \25\  The requirements in 40 CFR 51.354 define for I/M programs 
what states must submit to meet the section 110(a)(2)(E)(i) 
requirement that SIPs provide necessary assurances that adequate 
personnel, funding, and authority under state law are available to 
implement the program.
---------------------------------------------------------------------------

    Finally EPA notes that under section 307(b)(1) of the CAA, 
petitions for review of the Agency's 1995 final action approving the 
basic and enhanced I/M program would need to have been properly filed 
within 60 days of such action. Comments relating to EPA's approval were 
required to have been raised during the comment period for that 
rulemaking. Therefore, ACLPI's comments regarding financial and

[[Page 51607]]

manpower resources of the I/M program are not timely.
    Comment: ACLPI comments that yet another flaw is the State's use of 
513 tpd as the 1995 baseline figure for on-road mobile source 
emissions. MAG's 1994 Addendum projected attainment in 1995 with a 
mobile source CO emission budget of 513 tpd. ACLPI notes that there 
were CO violations in 1995, so the 1995 design day emissions must have 
been higher than 513 tpd. Yet MAG has used this 513 tpd figure as the 
baseline for projecting actual emissions in 1995, 1996, and 1997. ACLPI 
concludes that because actual emissions were almost certainly higher 
than these projections, MAG's projections are flawed as well.
    Response: The 513 tpd figure, like all emission inventory figures, 
is an estimate subject to an unavoidable degree of uncertainty. It was 
arrived at through a series of modeling steps including transportation 
and motor vehicle emissions modeling. See, in general, Chapter 5 of 
``1990 Base Year Carbon Monoxide Emission Inventory for the Maricopa 
County, Arizona Nonattainment Area,'' (located in Appendix B, Exhibit 1 
of the 1993 CO Plan). Each one of these models attempts to reproduce 
highly complex processes with comparatively limited data sets and thus 
introduces some natural range of error into the results.26 Given 
that no absolute ton per day figure is likely to be entirely accurate, 
the real question is whether the use of the 513 tpd figure is 
acceptable for the purpose at hand.
---------------------------------------------------------------------------

    \26\ For example, EPA has discussed the potential sources of 
errors in the MOBILE model and work underway to correct those errors 
in Highway Vehicle Emission Estimates--II, U.S. EPA, May 1995.
---------------------------------------------------------------------------

    As stated before, EPA's primary test for determining the adequacy 
of contingency measures is to assure emissions do not increase during 
the period the SIP is being revised. This is a comparative process: is 
the emission level at the end of the SIP revision period, considering 
the effect of the contingency measures, less than or equal to the 
emission level at the beginning of that period? Comparisons tend to 
mitigate errors between numbers that are derived in similar manners 
because the errors tend to cancel themselves out. Therefore, even 
though 513 tpd may not be the absolute attainment emission level for 
on-road motor vehicles in Maricopa, EPA believes it is acceptable for 
determining the adequacy of the contingency measures since it is used 
as the baseline for calculating both emissions with the contingency 
measures and emissions without such measures.
    Comment: ACLPI also questions the State's projections regarding the 
rate of emissions growth from on-road mobile sources. The State 
predicts that VMT will increase at a rate of about 3.9 percent in 1995-
96, and about 3.7 percent between 1996-97. Yet the State also predicts 
that, even without additional controls, on-road mobile sources will 
only increase at a rate of about 1.8 percent per year in 1995-96 and at 
a rate of 1.5 percent in 1996-97. ACLPI concludes that these figures 
indicate that the State is substantially understating the emissions 
growth likely from on-road mobile sources and therefore understating 
the emission reductions needed to offset that growth.
    Response: Actually, the State is not predicting that ``without 
additional controls,'' on-road mobile sources will increase at a rate 
less than VMT growth. Implicit in the State's baseline inventory is the 
effect of ``additional controls,'' including the impact of the federal 
tailpipe standards (which reduces the composite vehicle fleet emission 
rate as newer cars replace older cars) and continuing reductions from 
the State's non-enhanced I/M program, oxygenated gasoline, RVP limits, 
and other required controls. All of these control programs serve to 
dampen the growth in CO emissions compared to growth in VMT. Therefore, 
the figures cited by ACLPI do not indicate that the State is 
substantially underestimating the emissions growth from on-road mobile 
sources. Historically, CO emission levels in Phoenix have not increased 
at the rate of VMT growth and, for many years, actually decreased as 
VMT has grown. Despite the fact that the Phoenix area has not yet 
attained the CO standard, it has experienced substantial reductions in 
ambient CO levels even in the face of its rapid population and VMT 
growth.27
---------------------------------------------------------------------------

    \27\ See, for example, pages 2 and 3 in ``Conformity Analysis 
Appendices, Volume 2'' for the MAG Long Range Transportation Plan, 
Summary and 1996 Update and the 1997-2001 MAG Transportation 
Improvement Program (MAG, July 1996) which juxtapose daily VMT 
figures for each year from 1979 to 1993 and the 8-hour CO 
concentrations and number of annual exceedences at the Indian School 
monitor from 1981 to 1993. The VMT figures double between 1981 and 
1993 while CO concentrations drop by half and the number of 
exceedences decreases from more than 60 to less than 5 between the 
same years.
---------------------------------------------------------------------------

    Comment: ACLPI states that EPA's proposal to approve the State's CO 
SIP contingency measures without acting on the overall CO SIP itself is 
contrary to the Act. The SIP contains an attainment demonstration and 
other provisions proposed by the State to meet all of the SIP 
requirements for moderate CO areas and to address EPA's 1993 CO SIP 
call. ACLPI asserts that under applicable court precedent (Abramowitz 
v. EPA, 832 F.2d 1071 (9th Cir. 1987)), EPA cannot select out a few 
provisions of the plan for approval (i.e., the contingency measures) 
while deferring action on the attainment demonstration and all other 
provisions.
    Response: The Ninth Circuit in Abramowitz reviewed the Agency's 
action to approve certain control measures in the California carbon 
monoxide and ozone SIPs and to withhold action on the attainment 
demonstrations in those plans. The Court concluded that EPA could not 
approve the control measures without requiring any demonstration that 
those measures would achieve attainment by the statutory deadline. The 
control measures at issue were adopted by the State as an integral part 
of the attainment and RFP demonstrations and were intended to be 
implemented before the passage of the applicable attainment date. Those 
control measures were not contingency measures whose implementation was 
to be triggered by the failure of an area to actually make RFP or 
attain, as is the case for the measures under consideration in this 
rulemaking.
    In addition, the Abramowitz case was decided prior to the 1990 
Amendments to the Act. As noted before, the pre-amended Act had no 
contingency provisions. Congress added specific contingency provisions 
in 1990, including the section 172(c)(9) requirement of interest here. 
This section refers to ``implementation of specific measures to be 
undertaken if the area fails to make reasonable further progress, or to 
attain the [NAAQS] by the attainment date applicable under this part.'' 
(Emphasis added)
    These specific contingency measures are clearly outside the set of 
control measures that make up a State's attainment and RFP 
demonstrations required under sections 172(c) (1) and (2).28 They 
are not triggered until or unless an area fails to make RFP or attain 
by the applicable attainment date. For the foregoing reasons, EPA does 
not

[[Page 51608]]

believe the Court's finding in Abramowitz applies to this rulemaking.
---------------------------------------------------------------------------

    \28\  The fact that contingency measures are a distinct and 
separate requirement from and unrelated to prospective attainment 
and RFP demonstrations is clearly demonstrated by the Act's planning 
requirements for low moderate CO nonattainment areas. While these 
areas are required to submit section 172(c)(9) contingency measures, 
they are specifically exempt from the requirement to submit an 
attainment (and by extension, an RFP) demonstration by section 
187(a). Note that even where contingency measures and attainment 
demonstrations are required, section 172(b) authorizes EPA to set 
separate SIP submittal deadlines for them which shows these can (and 
sometimes must) be acted on separately.
---------------------------------------------------------------------------

    It should also be noted that EPA routinely receives SIP submittals 
that include rules, regulations, and other elements responding to 
various SIP requirements such as I/M programs, new source review 
programs, and reasonably available control technology rules. EPA has 
traditionally acted on these elements independently.
    Comment: ACLPI claims that approving contingency measures while 
deferring action on the attainment and other provisions of the 1993 CO 
SIP as amended stands the process on its head. ACLPI asserts that if 
the CO SIP is inadequate to produce timely attainment, or fails to meet 
other requirements of the Act, then EPA is obligated to disapprove the 
plan and require additional control measures as part of the plan. ACLPI 
concludes that EPA cannot evade this responsibility via the alleged 
artifice of treating essential measures as ``contingency'' measures and 
avoiding action on the attainment demonstration in the SIP itself.
    Response: As discussed above, EPA believes that the section 
172(c)(9) contingency measure requirement is separate and distinct from 
the attainment demonstration requirement and, thus, may be acted on 
independently. EPA agrees that if it finds that a SIP is inadequate to 
achieve timely attainment, then EPA is obligated to disapprove the plan 
and require additional control measures as necessary for timely 
attainment. However, in developing its new attainment demonstration, a 
state would not be compelled to choose its section 172(c)(9) 
contingency measures to contribute to that demonstration. While the 
Clean Air Act explicitly requires certain controls in SIP attainment 
demonstrations (e.g., oxygenated gasoline, I/M programs, RACT), it also 
allows states broad discretion to identify the exact controls that make 
up the remaining portion of such demonstrations.29
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    \29\  See, for example, section 172(c)(6) which states: Such 
plan provisions shall include enforceable emission limitations, and 
such other control measures, means or techniques * * * as may be 
necessary or appropriate to provide for attainment of the [NAAQS] by 
the applicable attainment date * * *. (Emphasis added).
---------------------------------------------------------------------------

    Under the circumstances posited by ACLPI, EPA could approve a 
state's contingency measures as meeting the requirements of section 
172(c)(9) while at the same time disapproving the plan's attainment 
demonstration, assuming such an action were warranted. See section 
110(k)(3). The state would then be required to develop and submit a new 
attainment demonstration. In so doing, the state could choose to 
include its pre-existing contingency measures as part of the attainment 
demonstration, in which case it would also be required to submit new 
contingency measures. On the other hand, the state would be free to 
choose entirely different measures as long as they resulted in 
expeditious attainment. In that event, the approved contingency 
measures would remain as such.
    Therefore, acting on a state's chosen contingency measures prior to 
acting on the attainment demonstration does not ``stand the process on 
its head;'' it merely acknowledges the state's right under the Act to 
select what measures will and will not make up its control strategy and 
what measures will and will not make up its section 172(c)(9) 
contingency measures.
    Comment: ACLPI states that the proposal violates section 110(l) of 
the Act because under that section, EPA cannot approve a revision to a 
plan if the revision would interfere with any applicable requirement 
concerning attainment and RFP. Contrary to EPA's assertion, ACLPI 
claims that the Agency's proposed action would most definitely 
interfere with applicable requirements for attainment and RFP--namely, 
those set forth in the FIP and, because the FIP contingency provisions 
explicitly require adoption of federal measures to provide for 
attainment of the CO NAAQS, these provisions are most assuredly 
``applicable requirements.'' ACLPI additionally asserts that EPA's 
action would interfere with those requirements by repealing them and 
that EPA's action further interferes with the Act's requirement that 
the state produce, and EPA approve or disapprove, a CO SIP that 
provides for attainment and RFP. ACLPI also comments that EPA's 
assertion that its approval of the State's contingency measures will 
not interfere with RFP because the measures are only triggered if there 
is a failure to make RFP is truly disingenuous. ACLPI objects to EPA's 
proposing to replace a FIP which mandates RFP and timely attainment 
with a plan that requires neither, and that will allegedly allow air 
quality to worsen.30
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    \30\  Contrary to ACLPI's comments, the FIP contingency process 
does not mandate RFP. See the FIP contingency process at 56 FR 5472. 
Therefore the discussion below does not address this aspect of 
ACLPI's comments.
---------------------------------------------------------------------------

    Response: EPA refers the reader to the discussion of the 
application of section 110(l) to today's action in its proposal. See 61 
FR 15647. That analysis shows why the proposed action meets the 
requirements of section 110(l). That discussion is expanded here.
    Section 110(l), added to the CAA in the 1990 Amendments, 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 this Act.'' As addressed below, EPA believes 
that the purpose of this provision is to assure that in changing one 
substantive aspect of its SIP, a state does not simultaneously impair 
its compliance with another aspect of the SIP or with the statutory 
mandates applicable to the aspect under revision.
    In making its arguments regarding section 110(l), ACLPI attempts to 
re-write the section to serve its own purposes. It is clear, however, 
from the plain language of section 110(l) that that provision is 
referring to noninterference with the requirements of the statute, and 
not to the requirements of a FIP as ACLPI contends. The term 
``applicable implementation plan,'' which includes FIPs as well as 
SIPs, is specifically defined in the Act and used throughout title I. 
See section 302(q); see also, e.g., section 110(c) and (n). Therefore, 
had Congress intended section 110(l) to have the meaning ACLPI 
suggests, it could easily have included at the end of the section the 
clause ``or requirements of any applicable implementation plan.''
    It is consistent with the Act as a whole for Congress to have 
limited section 110(l) to statutory rather than SIP requirements. 
States are at liberty to include such provisions as they see fit in 
their attainment demonstrations, provided attainment is demonstrated. 
They are also free to change those measures at any time, subject to 
certain savings clauses, provided expeditious attainment is still 
demonstrated. Congress did not in section 110(l) intend to override 
this general scheme by forbidding revisions (including revocations and 
replacements) of any SIP measure because it would by definition 
interfere with the pre-existing requirement of that very SIP measure. 
This analysis applies even more so to FIPs. In a FIP, EPA promulgates 
measures for a state which may be very different from the measures that 
the state would choose to implement in its own SIP. In keeping with the 
overriding statutory goal of federalism in the Act, when a state does 
adopt measures to replace FIP measures it should be able to select 
those measures it deems most suited to the state needs, provided they 
comply with the statutory requirements applicable to the element at 
issue. A state should not be subject forever to the

[[Page 51609]]

identical measures in the FIP, notwithstanding its initial failure to 
meet the statutory requirement giving rise to the FIP.
    In contrast, ACLPI, without any textual support, attempts to turn 
section 110(l) into a savings clause. In so doing, ACLPI's 
interpretation would render the Act's actual savings clauses virtually 
meaningless. For example, the section 110(n) savings clause keeps in 
effect pre-amendment provisions of any approved or promulgated 
applicable implementation plan, including a FIP, except to the extent 
that EPA approves a revision.31 Using ACLPI's interpretation of 
section 110(l), virtually any change to a pre-amendment SIP approved by 
EPA to conform to new 1990 statutory provisions would be prohibited. 
Clearly, Congress would not in one section of the statute effectively 
outlaw all SIP revisions to meet the new Act's many requirements 
wherever a prior SIP had addressed a similar requirement while allowing 
those revisions in another section.
---------------------------------------------------------------------------

    \31\ See footnote 13 for the text of section 110(n). As a 
savings clause, section 110(n) works in tandem with section 193, the 
Act's general savings clause. Pre-amendment SIP (or FIP) provisions 
remain in effect until a revision is approved by EPA, except that 
discrete controls on specific sources cannot be modified unless 
equivalent or greater emission reductions are assured.
---------------------------------------------------------------------------

    One example should suffice to demonstrate the untenability of 
ACLPI's position: pre-amendment SIPs were required under pre-amended 
section 110(a)(2)(B) to provide for maintenance as well as attainment 
of the NAAQS. Under the 1990 Amendments, maintenance plans for 
nonattainment areas are only required in connection with a 
nonattainment area's redesignation to attainment. See sections 
107(d)(3)(E) and 175A. Under ACLPI's interpretation, a state could 
never revise its SIP to eliminate or modify its pre-amendment 
maintenance plan because such an action would interfere with a 
requirement of the applicable implementation plan. Clearly this result 
is not what Congress intended in section 110(l).
    Likewise, if ACLPI's all-encompassing interpretation of section 
110(l) were to prevail, the section 193 control requirement savings 
provision would make no sense. For example, if any emission limitation 
for a specific source in a pre-amendment SIP (approved by EPA) were 
considered an ``applicable requirement'' within the meaning of section 
110(l), then any change in such a limitation would constitute 
interference. If that were the case, there would be no point in 
Congress' requiring that modifications to such requirements assure 
equivalent or greater emission reductions. Obviously Congress intended 
to allow substitution of control measures provided emissions reductions 
were equivalent in such cases.
    The section 110(l) admonishment that a SIP revision cannot 
``interfere with any applicable requirement concerning attainment and 
reasonable further progress'' or with any other ``applicable 
requirement of the Act'' must be read within the broad context of the 
Act rather than the narrow context of the SIP. As ACLPI has pointed 
out, the primary purpose of the nonattainment provisions of the Act is 
to assure attainment of the NAAQS and RFP towards attainment. Congress 
in 1990 explicitly established provisions in pursuit of these goals 
including contingency measures, reclassification and additional 
planning requirements for attainment and RFP that are triggered by an 
area's failure to attain by its attainment deadline. For CO, these 
provisions lie in sections 172, 186, and 187. These statutory 
requirements have been discussed extensively above and the FIP 
contingency process, including the highway delay provision, serves 
essentially the same purpose.32 Withdrawal of the FIP contingency 
process leaves these statutory provisions fully operable and, 
therefore, does not interfere with ``an applicable requirement 
concerning attainment and RFP;'' to wit, the area still remains under 
an applicable requirement to attain the standard and demonstrate RFP.
---------------------------------------------------------------------------

    \32\ This is true except for RFP. As noted before, the FIP 
contingency process did not require RFP; therefore, in this regard, 
the FIP contingency process does not go as far as the new statutory 
scheme.
---------------------------------------------------------------------------

    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 has concluded 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 contingency measures) in SIPs. As noted above, the 1982 SIP 
guidance, which required contingency procedures and under which the FIP 
was promulgated are inconsistent with the new statutory scheme and are 
no longer in effect. Therefore, withdrawal of the FIP contingency 
process, in conjunction with the approval of contingency measures 
consistent with the requirements of the CAA, does not conflict with 
current law or EPA policy regarding contingency requirements.
    To summarize, EPA believes that ACLPI's contention that section 
110(l) precludes EPA from approving the State's section 172(c)(9) 
contingency measures and withdrawing the FIP contingency process is 
supported neither by the plain language of section 110(l) nor by the 
structure of the 1990 Amendments.
    Finally, even if EPA believed, which it does not, that section 
110(l) encompasses purely procedural statutory requirements, EPA does 
not understand how its approval of the State's contingency measures and 
withdrawal of the FIP contingency process could be deemed to interfere 
with the Act's requirement that the State produce, and EPA approve or 
disapprove, a CO SIP that provides for attainment and RFP. EPA's action 
in this notice does not in any way affect the State's obligation under 
the Act to produce a CO SIP that provides for attainment and RFP, nor 
does it preclude in any way EPA's action on that or any other SIP the 
State has submitted or will submit.
    Comment: ACLPI requests that its December 22, 1995 and March 29, 
1996 notices of intent to sue EPA for failing to comply with the FIP 
contingency provisions be incorporated into the record of this matter.
    Response: ACLPI's two notices have been incorporated into the 
docket as comments on EPA's action.
    Comment: ACLPI states that rather than moving forward with adoption 
of additional measures to produce attainment, the Agency is proposing 
to ignore the bulk of the State's CO SIP and its SIP call and only act 
on the State's contingency procedures.
    Response: Approval of the State's contingency measures does not 
indicate what future action EPA will or will not take on the State's 
1993 CO plan, which was submitted in response to EPA's August 9, 1993 
SIP call, nor does it preclude any future actions on that plan. EPA's 
SIP call did not require that the State submit section 172(c)(9) 
contingency measures. As discussed above, the section 179(c)(9) 
requirement for specific contingency measures is a separate and 
distinct provision of the Act that may be approved separately from 
other elements of the CO plan.
    Comment: ACLPI claims that the extension and reclassification 
procedures in the 1990 Amendments assume that EPA will first review, 
and approve or disapprove moderate area CO SIPs before considering 
reclassification and attainment deadline extensions, and that EPA has 
flouted those requirements here.

[[Page 51610]]

    Response: EPA does not agree that reclassification of an area to 
serious under the Act requires prior review and approval or disapproval 
of a moderate area plan.33 Once an attainment date has passed, EPA 
must determine, based solely on ambient air quality data, whether an 
area has failed to attain without regard to whether EPA has approved a 
plan for the area. Once the Agency makes this finding, the area is 
reclassified to serious by operation of law. See section 186(b)(2). As 
a result of its recent reclassification to serious, the Maricopa area 
is now required to submit a new serious area CO plan by February 28, 
1998. See footnote 3. Because the Phoenix area experienced violations 
of the CO standard in 1995, it did not qualify for an extension of its 
attainment date; therefore, CAA requirements for extension of the 
attainment date are not relevant.
---------------------------------------------------------------------------

    \33\ Note that for low moderate areas the only plan submittals 
required by the CAA are section 172(c)(9) contingency measures and a 
section 187(a) emissions inventory. Therefore Congress could not 
have intended that EPA act on attainment plans for these areas 
before considering an attainment deadline extension or 
reclassification.
---------------------------------------------------------------------------

B. Comments by the Maricopa Association of Governments, May 9, 1996

    Comment: MAG made three technical comments correcting certain 
references in the proposal:
     Page 15747, second column, first partial paragraph: The 
appropriate reference is ``See 1993 CO Plan Addendum, Appendix, Exhibit 
4, memo re: Re-calculation of Carbon Monoxide Emission Reductions for 
the Committed Measures.''
     Page 15750, first column, first full paragraph, third 
sentence: The phrase ``1996 and 1997'' is inconsistent with the data 
provided and should be replaced with ``1995 through 1997.''
     Page 15750, first column, second full paragraph, third 
sentence: The phrase ``1996 and 1997'' is inconsistent with the data 
provided and should be replaced with ``1995 through 1997.''
    Response: EPA notes the first correction.
    EPA states in the proposal that ``data indicat[e] that emission 
increases of 17 tpd from VMT growth are expected to occur in 1996 and 
1997.'' EPA arrived at this number by subtracting the expected CO 1997 
emissions level (without post 1995 I/M 240), 530 tpd, from the expected 
CO 1995 emission level (without post 1995 I/M 240), 513 tpd. Both the 
530 tpd figure and the 513 tpd figure are calculated for December 1997 
and 1995, respectively. EPA's statement in the proposal is, therefore, 
correct: an emission increase of 17 tpd is expected in the two year 
period (characterized as 1996 and 1997 in the proposal) from December 
1995 through December 1997. The same reasoning applies to MAG's third 
correction.

III. Final Actions

    EPA is approving into the Arizona SIP for the Phoenix CO 
nonattainment area the State's enhanced remote sensing program and 
traffic diversion measure as meeting the requirements of sections 110 
and 172(c)(9) of the CAA.
    Based on the approval of the State's contingency measures, EPA is 
withdrawing the federal contingency process for the Phoenix CO 
nonattainment area. Specifically, the Agency is deleting 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 leaves the federal contingency process in place 
for the Pima County CO nonattainment area. EPA also is withdrawing 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 taking 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).
    Nothing in this 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.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

B. Regulatory Flexibility Act

    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 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, the Administrator certifies that they do 
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).

C. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), 2 U.S.C. 1501-1571, 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 that 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 by this rule.
    EPA has determined that the approval action promulgated does not 
include a federal mandate that may result in estimate costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector.

[[Page 51611]]

    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 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. This federal action approves pre-existing requirements under 
State or local law, imposes no new Federal requirements, and withdraws 
other federal requirements applicable only to EPA. Accordingly, no 
additional costs to State, local or tribal governments, or to the 
private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) added by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 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. 
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 December 2, 1996. 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations.

    Dated: September 26, 1996.
Carol M. Browner,
Administrator.
    For the reasons set forth in this preamble, 40 CFR part 52 is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart D--Arizona

    2. Section 52.120 is amended by adding paragraphs (c)(83) and 
(c)(85) to read as follows:


Sec. 52.120  Identification of plan.

* * * * *
    (83) Plan revisions were submitted on December 11, 1992, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) State Transportation Board of Arizona.
    (1) Resolution to Implement a Measure in the Maricopa Association 
of Governments 1992 Carbon Monoxide Contingency Plan, adopted on 
November 20, 1992.
    (85) Plan revisions were submitted on April 4, 1994, by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Revised Statutes.
    (1) House Bill 2001, Section 27: ARS 49-542.01(E) approved by the 
Governor on November 12, 1993.

[FR Doc. 96-25400 Filed 10-2-96; 8:45 am]
BILLING CODE 6560-50-P