[Federal Register Volume 62, Number 96 (Monday, May 19, 1997)]
[Rules and Regulations]
[Pages 27201-27203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13039]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 104-4059; FRL-5826-3]


Phase I Finding of Failure to Submit Required State 
Implementation Plans for the Philadelphia Ozone Nonattainment Area; 
Pennsylvania

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action in making a finding, under the 
Clean Air Act (ACT), that Pennsylvania failed to make a complete ozone 
nonattainment submittal required for the Philadelphia nonattainment 
area under the Act. Under certain provisions of the Act, as implemented 
consistent with a memorandum issued by EPA Assistant Administrator Mary 
D. Nichols, on March 2, 1995, Pennsylvania was required to submit SIP 
measures providing for certain percentage reductions in emissions of 
ozone precursors, termed ``rate-of-progress'' reductions; as well as 
SIP commitments to submit SIP measures providing for the remaining 
required rate-of-progress reductions and any additional emission 
reductions needed for attainment of the ozone ambient air quality 
standard in Philadelphia. This action triggers the 18 month time clock 
for mandatory application of sanctions in Pennsylvania under the Act. 
This action is consistent with the CAA mechanism for assuring SIP 
submittals.

EFFECTIVE DATE: This final rule is effective as of May 7, 1997.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
document should be addressed to Marcia Spink, Associate Director, Air 
Programs (3AT00), Air, Toxics and Radiation Division, U.S. EPA Region 
III,

[[Page 27202]]

841 Chestnut Building, Philadelphia, Pennsylvania, 19107, (215) 566-
2104.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1990, Congress amended the Clean Air Act to address, among other 
things, continued nonattainment of the ozone national ambient air 
quality standard (NAAQS). Pub. L. 101-549, 104 Stat.2399, codified at 
42 U.S.C., 7401-7671q (1991). The Amendments divide ozone nonattainment 
areas into, in general, five classifications based on air quality 
design value; and establish specific requirements, including new 
attainment dates, for each classification. CAA sections 107(d)(1)(C) 
and 181.
    The 1990 Amendments required states containing the highest 
classified ozone nonattainment areas--those classified as serious, 
severe, or extreme--to submit SIPs providing for periodic reductions in 
ozone precursors of a rate of 9% averaged over every three-year period, 
beginning after 1996 and ending with the area's attainment date. CAA 
sections 182(c)(2)(B). This SIP submission may be referred to as the 
Rate-of-Progress, or ROP, SIP. The 1990 Amendments further required 
these states to submit a demonstration of attainment (including air 
quality modeling) for the nonattainment area, as well as SIP measures 
containing any additional reductions that may be necessary to attain by 
the attainment date. CAA sections 182(c)(2)(A). This SIP submission is 
referred to as the Attainment Demonstration. These CAA provisions 
established November 15, 1994 as the required date for these SIP 
submittals.
    Notwithstanding significant efforts, the states generally were not 
able to meet this November 15, 1994 deadline for the required SIP 
submissions.
    On March 2, 1995, EPA Assistant Administrator Mary D. Nichols sent 
a memorandum to EPA Regional Administrators (the March 2, 1995 
memorandum, or Memorandum) recognizing the efforts made by states and 
the remaining difficulties in making the ROP and Attainment 
Demonstration SIP submittals. The March 2, 1995 memorandum recognized 
that, in general, many states have been unable to complete these SIP 
requirements within the deadlines prescribed by the Act due to 
circumstances beyond their control. These states were hampered by 
unavoidable delays in developing the underlying technical information 
needed for the required SIP submittals. The Memorandum recognized that 
development of the necessary technical information, as well as the 
control measures necessary to achieve the large level of reductions 
likely to be required, is particularly difficult for many states 
affected by ozone transport.
    Accordingly, as an administrative remedial matter, the March 2, 
1995 memorandum indicated that EPA would establish new timeframes for 
SIP submittals. The Memorandum called for states seeking to avail 
themselves of the new policy to submit, by May 1995, a letter 
committing to the new timeframes.
    The Memorandum further indicated that EPA would divide the required 
SIP submittals into two phases. The Phase I submittals generally 
consisted of: (i) SIP measures providing for ROP reductions due by the 
end of 1999 (the first 9% of ROP reductions); (ii) a SIP commitment 
(sometimes referred to as an enforceable commitment) to submit any 
remaining required ROP reductions on a specified schedule after 1996 
(with submission no later than the end of 1999); and (iii) a SIP 
commitment to submit the Attainment Demonstration by mid-1997 (with 
submission by no later than the end of 1999 of any additional rules 
needed to attain). The Memorandum indicated that EPA would establish 
the end of 1995 as the due date for the Phase I submittals. States 
could have proposed a schedule for making submissions in 1996 if 
necessary due to administrative scheduling imperatives (such as the 
schedule for legislative sessions).
    The Phase II submittals were due at specified times after 1996, and 
primarily consisted of the remaining ROP SIP measures, the Attainment 
Demonstration and required additional rules, and any regional controls 
necessary for attainment by all areas in the region.
    By a letter dated May 2, 1996, EPA informed Pennsylvania that it 
was important that it complete the Phase I submittals as soon as 
possible, and requested that it provide EPA with a schedule for 
completing these submittals. This letter cautioned that EPA would, 
within the near future, evaluate the Commonwealth's schedule; and that 
if EPA considered the schedule insufficiently expeditious, EPA would 
consider beginning the process under CAA section 179(a)(1), described 
below, of sanctioning Pennsylvania for failing to make the required 
submittals.
    The EPA regional offices and state officials discussed the states' 
progress, and the states developed schedules for completing the Phase I 
requirements. Although EPA recognizes the continued progress states are 
making in developing the required SIPs, EPA believes that in most 
cases, the schedules presented by the states are not sufficiently 
expeditious for the states to be considered in substantial compliance 
with the Phase I deadlines.
    The 1990 Amendments establish specific consequences if EPA finds 
that a state has failed to meet certain requirements of the CAA. Of 
particular relevance here is CAA section 179(a)(1), the mandatory 
sanctions provision. Section 179(a) sets forth four findings that form 
the basis for application of a sanction. The first finding, that a 
state has failed to submit a plan or one or more elements of a plan 
required under the CAA, is the finding relevant to this rulemaking.

II. Final Action

    EPA is finding that Pennsylvania has failed to make the required 
SIP submissions for the Pennsylvania portion of the Philadelphia severe 
ozone nonattainment area. The required SIP element that Pennsylvania 
has failed to submit is the enforceable SIP commitment to adopt any 
additional rules needed to complete the requirements for ROP reductions 
after 1999, and until the attainment date.
    If Pennsylvania does not make the required complete submittal 
within 18 months of the effective date of today's rulemaking, pursuant 
to CAA section 179(b) and 40 CFR 52.31, the offset sanction identified 
in CAA section 179(b) will be applied in Pennsylvania portion of the 
Philadelphia nonattainment area. If Pennsylvania has still not made a 
complete submission 6 months after the offset sanction is imposed, then 
the highway funding sanction will apply in the Pennsylvania portion of 
the Philadelphia nonattainment area, in accordance with 40 CFR 52.31. 
In addition, CAA section 110(c) provides that EPA promulgate a federal 
implementation plan (FIP) no later than 2 years after a finding under 
section 179(a).
    The 18 month clock will stop and the sanctions will not take 
effect, if, within, 18 months after the date of the finding, EPA finds 
that Pennsylvania has made a complete submittal as to each of the SIP 
elements for which these finding are made. In addition, EPA will not 
promulgate a FIP if the Pennsylvania makes the required SIP submittal 
and EPA takes final action to approve the submittal within 2 years of 
EPA's finding.
    At the same time as the signing of this document, the EPA Regional 
Administrator for Region III is sending a letter to Pennsylvania 
describing the status of the Commonwealth's effort and this finding in 
more detail. This letter, and the enclosure, is included in the

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docket to this rulemaking. EPA's finding for Pennsylvania is consistent 
with those findings made for 10 other states and the District of 
Columbia, described in the July 10, 1996 Federal Register (61 FR 
36292).

III. Administrative Requirements

A. Rule

    EPA is making a finding of Pennsylvania's failure to submit, for 
the Pennsylvania portion of the Philadelphia ozone nonattainment area, 
the enforceable commitment to adopt additional rules needed to complete 
the requirements for ROP reductions after 1999 and until the attainment 
date.

B. Effective Date Under the Administrative Procedures Act

    EPA has issued this action as a rulemaking because EPA has treated 
this type of action as rulemaking in the past. However, EPA believes 
that it would have the authority to issue this action as an informal 
adjudication, and is considering which administrative process--
rulemaking or informal adjudication--is appropriate for future actions 
of this kind. Because EPA is issuing this action as a rulemaking, the 
Administrative Procedures Act (APA) applies.
    Today's action is effective as of May 7, 1997. Under the APA, 5 
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days 
after the date of publication in the Federal Register if the agency has 
good cause to mandate an earlier effective date. Today's action 
concerns SIP submissions that are already overdue; and EPA previously 
cautioned Pennsylvania that the SIP submissions were overdue and that 
EPA was considering the action it is taking today. In addition, today's 
action simply starts a ``clock'' that will not result in sanctions 
against Pennsylvania for 18 months, and that Pennsylvania may ``turn 
off'' through the submission of the complete SIP submittal. These 
reasons support an effective date prior to 30 days after the date of 
publication.

C. Notice and Comment Under the Administrative Procedures Act

    This document is a final agency action, but it is not subject to 
the notice and comment requirements of the APA, 5 U.S.C. 553(b). EPA 
believes that because of the limited time provided to make findings of 
failure to submit and findings of incompleteness regarding SIP 
submissions or elements of SIP submission requirements, Congress did 
not intend such findings to be subject to notice and comment 
rulemaking. However, to the extent such findings are subject to notice 
and comment rulemaking, EPA invokes the good cause exception pursuant 
to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are unnecessary 
because no EPA judgment is involved in making a non-substantive finding 
of failure to submit elements of SIP submissions required by the Clean 
Air Act. Furthermore, providing notice and comment would be 
impracticable because of the limited time provided under the statute 
for making such determinations. Finally, notice and comment would be 
contrary to the public interest because it would divert agency sources 
from the critical substantive review of complete SIPs. See 58 FR 51270, 
51272, n.17 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug. 4, 1994).

D. Executive Order 12866

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

E. Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act'' or UMRA), signed into law on 
March 22, 1995, EPA undertakes various actions in association with 
proposed or final rules that include a Federal mandate that may result 
in estimated costs of $100 million or more to the private sector; or to 
state, local or tribal governments in the aggregate.
    In addition, under the Unfunded Mandates Act, before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, EPA 
must have developed, under section 203 of the UMRA, a small government 
agency plan.
    EPA has determined that today's action is not a Federal mandate. 
The various CAA provisions discussed in this notice require the states 
to submit SIPs. This document merely provides a finding that the states 
have not met those requirements. This document does not, by itself, 
require any particular action by any state, local or tribal government; 
or by the private sector. For the same reasons, EPA has determined that 
this rule contains no regulatory requirements that might significantly 
or uniquely affect small governments.

F. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
EPA must prepare a regulatory flexibility analysis assessing the impact 
on small entities of any rule subject to the notice and comment 
rulemaking requirements. Because this action is exempt from such 
requirements, as described above, it is not subject to the RFA.

G. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) of the APA, as added by the Small 
Business Regulatory Enforcement Fairness Act of 1996, EPA submitted, by 
the effective date of this rule, a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the United States. This 
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2), as amended. 
As noted above, EPA is issuing this action as rulemaking. There is a 
question as to whether this action is a rule of ``particular 
applicability'', under 5 U.S.C. 804(3)(A) of APA as amended by SBREFA--
and thus exempt from the congressional submission requirements--because 
this rule applies only to Pennsylvania. In this case, EPA has decided 
to err on the side of submitting this rule to Congress, but will 
continue to consider this issue of the scope of the exemption for rules 
of ``particular applicability.''

H. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
that require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.).

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action, pertaining to Pennsylvania's finding of 
failure to submit the required SIP elements under the March 2, 1995 
phased approach, must be filed in the United States Court of Appeals 
for the appropriate circuit by July 18, 1997.

    Dated: May 7, 1997.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 97-13039 Filed 5-16-97; 8:45 am]
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