[Federal Register Volume 62, Number 114 (Friday, June 13, 1997)]
[Rules and Regulations]
[Pages 32207-32209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15566]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5831-9]


Final Rule Making Findings of Failure To Submit Required State 
Implementation Plan: Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action in making a finding, pursuant to 
sections 179(a)(1) and 110(k) of the Clean Air Act (CAA or Act), as 
amended in 1990 (Pub. L. No. 101-549, November 15, 1990), 42 U.S.C. 
7509(a)(1) and 7410, for the state of Oregon. The EPA has determined 
that Oregon has failed to submit a state implementation plan (SIP) for 
particulate matter less than or equal to 10 microns (PM-10) as required 
under the provisions in the Act for the Medford-Ashland nonattainment 
area. This rule addresses the requirement under section 189(a)(2)(A) of 
the Act that each state shall submit the SIP required under section 
189(a)(1) within one year of the date of the enactment of the Clean Air 
Act Amendments of 1990 (i.e., by November 15, 1991) for areas 
designated nonattainment for PM-10 under section 107(d)(4). Other 
provisions required under section 189(a)(1)(A) were due at a later date 
(i.e., provisions relating to new source review).
    This action triggers the 18-month time clock for mandatory 
application of sanctions in the Medford-Ashland PM-10 nonattainment 
area under the Act. This action is consistent with the CAA mechanism 
for assuring SIP submission.

EFFECTIVE DATE: June 13, 1997.


[[Page 32208]]


ADDRESSES: Copies of the state's request and other information 
supporting this action are available for inspection during normal 
business hours at the following locations: EPA, Office of Air Quality 
(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101; EPA Oregon 
Operations Office, 811 SW Sixth Avenue, Third Floor, Portland, Oregon 
97204; and the Oregon Department of Environmental Quality, 811 SW Sixth 
Avenue, Portland, Oregon 97204-1390.

FOR FURTHER INFORMATION CONTACT: Rindy Ramos, EPA, Office of Air 
Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, (206) 
553-6510.

SUPPLEMENTARY INFORMATION:

I. Background

A. SIP Elements Due November 15, 1991

    The area within the Medford-Ashland, Oregon, Air Quality 
Maintenance Area was designated nonattainment for PM-10 and classified 
as moderate under Sections 107(d)(4)(B) and 188(a) of the CAA, upon 
enactment of the Clean Air Act Amendments (CAAA) of 1990.1 
See 56 FR 56694 (November 6, 1991) and 40 CFR 81.338.
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    \1\ The 1990 Amendments to the Clean Air Act made significant 
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399. 
References herein are to the Clean Air Act, as amended (``the 
Act''). The Clean Air Act is codified, as amended, in the U.S. Code 
at 42 U.S.C. Sections 7401, et seq.
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    The air quality planning requirements for moderate PM-10 
nonattainment areas are set out in Subparts 1 and 4 of Title I of the 
Act.2 EPA has issued a ``General Preamble'' describing EPA's 
preliminary views on how EPA intends to review SIPs and SIP revisions 
submitted under Title I of the Act, including those state submittals 
containing moderate PM-10 nonattainment area SIP requirements (see 
generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 
1992)). The General Preamble provides a detailed discussion of EPA's 
interpretation of the Title I requirements.
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    \2\ Subpart 1 contains provisions applicable to nonattainment 
areas generally, and Subpart 4 contains provisions specifically 
applicable to PM-10 nonattainment areas. At times, Subpart 1 and 
Subpart 4 overlap or may conflict. EPA has attempted to clarify the 
relationship among these provisions in the ``General Preamble'' and, 
as appropriate, in today's notice and supporting information.
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    Those states containing initial moderate PM-10 nonattainment areas 
(those areas designated nonattainment under Section 107(d)(4)(B)) were 
required to submit, among other things, the following provisions by 
November 15, 1991:
    1. Provisions to assure that Reasonably Available Control Measures 
(including such reductions in emissions from existing sources in the 
area as may be obtained through the adoption, at a minimum, of 
Reasonably Available Control Technology) shall be implemented no later 
than December 10, 1993;
    2. Either a demonstration (including air quality modeling) that the 
plan will provide for attainment as expeditiously as practicable but no 
later than December 31, 1994, or a demonstration that attainment by 
that date is impracticable;
    3. Quantitative milestones which are to be achieved every three 
years and which demonstrate Reasonable Further Progress (RFP) toward 
attainment by December 31, 1994; and
    4. Provisions to assure that the control requirements applicable to 
major stationary sources of PM-10 also apply to major stationary 
sources of PM-10 precursors except where the Administrator determines 
that such sources do not contribute significantly to PM-10 levels which 
exceed the NAAQS in the area. See Sections 172(c), 188, and 189 of the 
Act.
    States with initial moderate PM-10 nonattainment areas were 
required to: (1) submit a permit program for the construction and 
operation of new and modified major stationary sources of PM-10 by June 
30, 1992 (see Section 189(a)); and (2) submit contingency measures by 
November 15, 1993, which were to become effective without further 
action by the state or EPA, upon a determination by EPA that the area 
has failed to achieve RFP or to attain the PM-10 NAAQS by the 
applicable statutory deadline (see Section 172(c)(9) and 57 FR 13543-
13544). Oregon has made submittals in response to both of the above 
described requirements. EPA intends to address the submittal containing 
the new source review permit program in a separate action.

B. State Withdrawal of November 15, 1991, SIP

    On November 15, 1991, to address the CAAA of 1990, Oregon submitted 
a PM-10 nonattainment area SIP for the Medford-Ashland PM-10 
nonattainment area. EPA determined the submittal to be complete on 
April 10, 1992. However, because of various problems with the submittal 
that EPA and the state were working to resolve, EPA had, to date, not 
taken formal action on the nonattainment area attainment plan.
    On January 6, 1997, EPA received a notification from the Oregon 
Department of Environmental Quality (ODEQ) that it was withdrawing the 
Medford-Ashland PM-10 SIP. The state requested that the attainment plan 
be withdrawn effective immediately.
    As indicated in its January 6, 1997, letter, ODEQ intends to re-
submit a revised attainment plan, a complete maintenance plan, and a 
request to redesignate the area to attainment by March 1998. EPA notes 
that significant improvement has been made in air quality in the 
Medford-Ashland PM-10 nonattainment area. Based on current air quality 
data, the area has attained the annual and 24-hour PM-10 NAAQS at the 
area's ambient monitoring sites. However, the area lacks a technical 
demonstration indicating attainment of the NAAQS throughout the airshed 
as required under the CAA.

C. Finding of Failure To Submit

    The 1990 Amendments establish specific consequences if EPA finds 
that a state has failed to meet certain requirements of the CAA. Of 
particular relevance here is section 179(a)(1) of the CAA, the 
mandatory sanctions provision. Section 179(a) sets forth four findings 
that form the basis for application of a sanction. The first finding, 
that a state has failed to submit a plan or one or more elements of a 
plan required under the CAA, is the finding relevant to this 
rulemaking.
    Due to the withdrawal by the state of the Medford-Ashland PM-10 
attainment plan, the statutory requirement to submit such a plan for 
the area is no longer satisfied. Therefore, EPA finds that the state of 
Oregon has failed to make a SIP submission for the Medford-Ashland PM-
10 nonattainment area as required pursuant to section 189(a)(2)(A) of 
the CAA.
    If the state does not correct this deficiency, i.e., by submitting 
a complete plan as required by the Act, within 18 months of the 
effective date of today's rulemaking, pursuant to section 179(a) of the 
CAA and 40 CFR 52.31, the offset sanction identified in section 179(b) 
of the CAA will be applied in the Medford-Ashland PM-10 nonattainment 
area. If the state still has not made a complete submission 6 months 
after the offset sanction is imposed, then the highway funding sanction 
will apply in the affected area, in accordance with 40 CFR 52.31. In 
addition, section 110(c) of the Act provides that EPA promulgate a 
federal implementation plan (FIP) no later than two years after a 
finding under section 179(a) if prior to that time the EPA has not 
approved the submission correcting the deficiency.
    The 18-month clock will stop and the sanctions will not take effect 
if, within 18 months after the date of the finding, EPA finds that the 
state has made a

[[Page 32209]]

complete submittal as to each of the SIP elements for which these 
findings are made. In addition, EPA will not promulgate a FIP if the 
state makes the required SIP submittal and EPA takes final action to 
approve the submittal within two years of EPA's finding.

II. Final Action

A. Rule

    Today, EPA is making a finding of failure to submit an attainment 
plan for the Medford-Ashland, Oregon, PM-10 nonattainment area. 
Specifically, EPA is making a finding that Oregon has not submitted a 
plan satisfying the requirement under section 189(a)(2)(A) of the Act. 
This section requires that each state submit a plan that includes 
certain provisions required under section 189(a)(1) within one year of 
the date of enactment of the Clean Air Act Amendments of 1990 (i.e., by 
November 15, 1991) for areas designated nonattainment for PM-10 under 
section 107(d)(4). Other provisions required under section 189(a)(1)(A) 
were due at a later date (i.e., provisions relating to new source 
review). See section 189(a)(2)(A).

B. Effective Date Under the Administrative Procedures Act

    The Administrative Procedures Act (APA) applies to this rulemaking 
action. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take 
effect sooner than 30 days after the date of publication in the Federal 
Register if the agency has good cause to mandate an earlier effective 
date. Today's action concerns a SIP submission that is already overdue. 
On February 11, 1997, EPA notified the state that EPA was considering 
the action it is taking today. Consequently, the state has been on 
notice for some time that today's action was pending. In addition, 
today's action simply starts a ``clock'' that will not result in 
sanctions against the state for 18 months, and that the state may 
``turn off'' through the submission of a complete SIP submittal. These 
reasons support establishing an effective date that is earlier than 30 
days after the date of publication. Therefore, today's action will be 
effective June 13, 1997.

C. Notice-and-Comment Under the Administrative Procedures Act

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

III. Administrative Requirements

A. Executive Order 12866

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

B. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted on by the rule.
    EPA has determined that today's action is not a Federal mandate. 
The various CAA provisions discussed in this rule require the state to 
submit SIPs. This rule merely provides a finding that the state did not 
meet those requirements. This rule does not, by itself, require any 
particular action by the state, local, or tribal government; or by the 
private sector.
    For the same reasons, EPA has determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments.

C. Regulatory Flexibility Act

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

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA submitted a 
report containing this rule and other required information to the U.S. 
Senate, the U.S. House of Representatives, and the Comptroller General 
of the General Accounting Office prior to publication of the rule in 
today's Federal Register. This rule is not a ``major rule'' as defined 
by 5 U.S.C. section 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 12, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See CAA section 307(b)(2), 42 U.S.C. 
7607(b)(2))

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Particulate 
matter.

    Dated: May 8, 1997.
Chuck Clarke,
Regional Administrator.
[FR Doc. 97-15566 Filed 6-12-97; 8:45 am]
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