[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Rules and Regulations]
[Pages 63456-63458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31278]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ033-0007; FRL-5928-3]


Approval and Promulgation of Implementation Plans; Arizona--
Maricopa County CO Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action constitutes EPA's response to the Ninth Circuit 
Court of Appeals' July 31, 1997 opinion in DiSimone versus Browner, No. 
96-70974 (9th Cir. July 31, 1997). As a result of the opinion, EPA is 
restoring the contingency procedures in the carbon monoxide (CO) 
federal implementation plan (FIP) for the Maricopa County, Arizona 
nonattainment area (Phoenix) that it promulgated in accordance with 
Agency guidance issued prior to the 1990 Clean Air Act Amendments 
(CAAA). EPA is also withdrawing its approval of two contingency 
measures submitted by the State as revisions, pursuant to the 1990 
CAAA, to the CO state implementation plan (SIP) for Phoenix.

EFFECTIVE DATE: This action is effective as of December 1, 1997.

FOR FURTHER INFORMATION CONTACT: Jan Taradash, Office of Regional 
Counsel (ORC-2), U.S. Environmental Protection Agency, 75 Hawthorne 
Street, San Francisco, California, 94105-3901, (415) 744-1335 or Sara 
Schneeberg, Office of General Counsel, U.S. Environmental Protection 
Agency, 401 M Street, S.W., Washington, D.C. 20460, (202) 260-5145.

SUPPLEMENTARY INFORMATION:

I. Background

    In March 1990, the United States Court of Appeals for the Ninth 
Circuit vacated EPA's 1988 approval of the State of Arizona's SIP for 
the Phoenix CO nonattainment area and directed the Agency to promulgate 
a Federal implementation plan (FIP) under section 110(c) of the Clean 
Air Act (CAA) that included contingency procedures in accordance with 
its then existing guidance.1 Delaney versus EPA, 898 F.2d 
687 (9th Cir. 1990). In November 1990, the 1990 Amendments to the Clean 
Air Act (CAAA) were enacted which comprehensively revised the statute, 
including the provisions dealing with nonattainment areas and the 
deadlines and requirements for achieving attainment. EPA then filed in 
the Ninth Circuit a motion to recall the Delaney mandate, arguing, in 
part, that promulgation of the FIP under the pre-amended statute was 
inconsistent with both the structure and substantive provisions of the 
new law. EPA also argued that section 193, the general savings clause, 
of the 1990 Amendments did not preserve the Agency's pre-amendment FIP 
obligation.2 The Ninth Circuit denied EPA's motion without 
opinion and EPA subsequently promulgated the FIP contingency 
procedures. 56 FR 5458 (Feb. 11, 1991).
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    \1\ The CAA prior to the 1990 Amendments contained no statutory 
provision for contingency procedures or measures. As a result of 
this absence, EPA developed the guidance pursuant to which the FIP 
was promulgated. 46 FR 7187 (January 22, 1981).
    \2\ Section 193 provides, in pertinent part:
    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.
    EPA did not advance in its motion an argument concerning the 
effect of section 193 on any subsequent replacement of the FIP 
contingency procedures with approved state measures.
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    In 1994 Arizona submitted to EPA contingency measures (an enhanced 
remote sensing program and a traffic diversion measure) adopted to 
satisfy the requirements of section 172(c)(9), a new provision added to 
the CAA by the 1990 Amendments.3 In 1996, EPA approved these 
State measures as meeting the requirements of sections 110(a) and 
172(c)(9) of the CAA and withdrew the FIP contingency procedures. 61 FR 
51599 (Oct. 3, 1996). The Arizona Center for Law in the Public Interest 
(ACLPI) subsequently filed a petition for review of this action in the 
Ninth Circuit and the Court issued its opinion on July 31, 1997. 
DiSimone versus Browner, No. 96-70974 (9th Cir. July 31, 1997).
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    \3\ Section 172(c)(9) requires SIPs to provide for the 
implementation of specific measures to be undertaken if the area 
fails to make reasonable further progress (RFP) or attain the 
national ambient air quality standard (NAAQS) by the applicable 
attainment date.
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    In its petition, ACLPI challenged EPA's action on several grounds, 
including that: (1) EPA violated section 193 by approving measures that 
did not insure equivalent or greater emission reductions than the FIP, 
and (2) the contingency measures approved by EPA did not comply with 
the requirements of section 172(c)(9). On these grounds, petitioners' 
requested that the court vacate EPA's approval of the state's 
contingency measures and withdrawal of the FIP contingency procedures, 
and direct EPA to restore the FIP contingency procedures.
    In its opinion, the Court found that EPA's replacement of the 
court-ordered federal contingency provisions with state provisions 
under the new statutory scheme violated the Delaney mandate. Slip op. 
at 9023. The Court further found that EPA was precluded from litigating 
in DiSimone the issue of whether the amended Act authorized EPA's 
withdrawal of the FIP contingency procedures and approval of the 
State's contingency measures in their place. Slip op. at 9025. To 
support that conclusion, the Court reasoned that:

    [T]he issue presented in EPA's motion to recall the mandate [in 
Delaney] and the issue presented in this case [DiSimone] are indeed 
identical. The arguments advanced by EPA in both cases were that 
requiring the continued adherence to pre-Amendment guidelines would 
thwart Congressional intent and be inconsistent with the 
reclassification scheme introduced by the 1990 amendments. In 
addition, both the motion to recall the mandate and EPA's brief in 
this case addressed the General Savings Clause * * * as not 
applicable to the court's order in Delaney. Slip op. at 9026.

    The Court also stated that the 9th Circuit panel denying EPA's 
motion to recall the mandate ``decided against all of the arguments 
presented in EPA's motion because such a determination was necessary to 
deny the motion.'' Slip op. at 9027. The Court did not, however, 
indicate what specific relief sought by ACLPI it was granting. Instead, 
it merely granted the petition ``for the foregoing reasons.'' (Emphasis 
added). Slip op. at 9028.
    Because of the Court's exclusive reliance on Delaney, the 
restoration of the FIP contingency procedures is clearly compelled by 
its granting of ACLPI's petition. As to the State's contingency 
measures, nowhere in the opinion does the Court address the issue of 
whether the State's measures meet the requirements of sections 110(a) 
and 172(c)(9) of the CAA.4 Thus there is no indication as to 
whether EPA's approval of these measures could remain in place in light 
of the restoration of the FIP.
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    \4\ In fact, ACLPI did not raise in its petition for review any 
issues relating to EPA's approval of the contingency measures under 
section 110(a).
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    However, throughout the opinion there is evidence that the gravamen 
of the Court's objection to EPA's action was the substitution of the 
State's contingency measures for the FIP

[[Page 63457]]

contingency procedures.5 Consequently EPA has concluded that 
the Court viewed the Agency's withdrawal of the FIP contingency 
procedures and approval of the State's contingency measures as 
interdependent. Because EPA does not intend to seek a rehearing from 
the Ninth Circuit, the Agency believes that, for the purpose of this 
action, it has no choice but to withdraw its approval of the State's 
measures in addition to restoring the FIP contingency 
procedures.6
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    \5\ For example: ``We hold that EPA acted in disobedience of an 
order of this court in withdrawing the federal plan and approving a 
state plan in its place.* * *'' Slip op. at 9019; ``Here, the issue 
to be foreclosed is whether, in light of the 1990 amendments to the 
Clean Air Act, EPA was permitted to approve a state implementation 
plan in place of the federal plan ordered by the Delaney panel.'' 
Slip op. at 9025.
    \6\ It should be noted that those measures no longer serve a 
contingency function because they were implemented when the Phoenix 
area was automatically reclassified from a ``moderate'' to a 
``serious'' CO nonattainment area upon EPA's finding that the area 
had failed to meet the statutory attainment deadline of December 31, 
1995. See 61 FR 39343 (July 29, 1996) and footnote 3. As a result of 
the reclassification, the State is required to submit a serious area 
SIP revision for Phoenix by February 28, 1998 that includes new 
contingency measures pursuant to CAA section 172(c)(9).
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II. Final Actions

A. Rule

    For the foregoing reasons, EPA is taking final action to restore 
the federal contingency procedures for the Phoenix CO nonattainment 
area. Specifically, the Agency is restoring the phrase ``After December 
31, 1991 for the Maricopa CO nonattainment area or'' to the contingency 
provisions at 56 FR 5471, col. 2 (Feb. 11, 1990). EPA is also, for the 
reasons discussed above, withdrawing its approval of the State's 
contingency measures as meeting the requirements of sections 110(a) and 
172(c)(9) of the CAA.
    At the time EPA approved the State's contingency measures and 
withdrew the FIP contingency procedures, the Agency also withdrew the 
list of highway projects potentially subject to delay that the Agency 
proposed on June 28, 1993 during the partial implementation of the FIP 
at that time. 58 FR 34547.7 EPA is today reaffirming the 
withdrawal of that list because it is no longer current. During any 
future implementation of the FIP contingency procedures, EPA will 
propose an updated list of projects potentially subject to delay.
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    \7\ For the full text of the FIP contingency procedures, see 56 
FR 5471-5472.
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B. Effective Date and Notice and Comment Under the Administrative 
Procedures Act

    Today's action will be effective on December 1, 1997. Under the 
Administrative Procedures Act (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 an agency has good cause to mandate an 
earlier effective date. In today's action, EPA is simply implementing 
administratively a result that the Ninth Circuit Court of Appeals 
effectuated in its July 31, 1997 opinion in DiSimone v. Browner. 
Therefore an effective date prior to 30 days after the date of 
publication is warranted.
    Similarly, while this document constitutes final agency action, EPA 
finds good cause to forego prior notice and comment under the APA, 5 
U.S.C. 553(b). Notice and comment are unnecessary because no EPA 
judgment is involved in restoring the FIP contingency procedures and 
withdrawing the Agency's approval of the State's contingency measures 
pursuant to the Ninth Circuit's opinion in DiSimone.

III. 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 (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 under the good cause exception. Because this 
action is exempt from such requirements, as described above, it is not 
subject to the RFA.

C. Unfunded Mandates

    Under sections 202, 203 and 205 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 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 by this rule.
    EPA's withdrawal of its approval of the State's contingency 
measures does not include a federal mandate that may result in 
estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector. This 
action simply makes requirements that the State is already imposing no 
longer subject to federal enforcement. Restoration of the FIP 
contingency procedures puts back in place federal requirements that 
existed prior to their withdrawal by the Agency in 1996. To the extent 
that this action imposes any mandate on State, local, tribal 
governments or the private sector, EPA concludes that it would not 
result in estimated costs of $100 million or more. With regard to both 
actions, EPA is simply implementing administratively what the Ninth 
Circuit effectuated in its July 31, 1997 opinion in DiSimone v. 
Browner. Therefore EPA has not prepared a budgetary impact statement 
for 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 January 30, 1998. 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.


[[Page 63458]]


    Dated: November 20, 1997.
Carol M. Browner,
Administrator.

    For the reasons set forth in the 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 et seq.

Subpart D--Arizona


Sec. 52.120  [Amended]

    2. Section 52.120 is amended by removing and reserving paragraphs 
(c)(83) and (c)(85).

[FR Doc. 97-31278 Filed 11-28-97; 8:45 am]
BILLING CODE 6560-50-P