[Federal Register Volume 63, Number 37 (Wednesday, February 25, 1998)]
[Rules and Regulations]
[Pages 9423-9425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4821]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ-006-FON FRL-5969-8]


Finding of Failure To Submit Required State Implementation Plans 
for Particulate Matter; Arizona; Phoenix PM-10 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Under the Clean Air Act (Act), EPA is taking final action to 
find that the State of Arizona has failed to make required State 
Implementation Plan (SIP) submittals for the metropolitan Phoenix PM-10 
nonattainment area. These submittals are the regional moderate area 
plan requirements for the 24-hour PM-10 standard and the serious area 
plan requirements for annual PM-10 standard and the regional serious 
area requirements for the 24-hour standard. The deadline for these 
submittals was December 10, 1997.
    This final action triggers the 18-month time clock for mandatory 
application of sanctions and 2-year time clock for a federal 
implementation plan under the Act. This action is consistent with the 
Act's mechanism for assuring SIP submissions.

EFFECTIVE DATE: February 6, 1998.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning 
(AIR-2), Air Division, U.S. EPA, Region 9, 75 Hawthorne Street, San 
Francisco, California, 94105-3901, telephone (415) 744-1248.

SUPPLEMENTARY INFORMATION:

I. Background

A. Serious Area PM-10 Planning Requirements for the Phoenix 
Metropolitan Area

    In 1990, Congress amended the Clean Air Act to address, among other 
things, continued nonattainment of the PM-10 NAAQS.1 Public 
Law 101-549, 104 Stat. 2399, codified at 42 U.S.C., 7401-7671q (1991). 
On the date of enactment of the Amendments, PM-10 areas meeting the 
qualifications of section 107(d)(4)(B) of the amended Act were 
designated nonattainment by operation of law. These areas included all 
former Group I areas identified in 52 FR 29383 (August 7, 1987) and 
clarified in 55 FR 45799 (October 31, 1980), and any other areas 
violating the PM-10 NAAQS prior to January 1, 1989. The metropolitan 
Phoenix PM-10 nonattainment area (Phoenix area) was identified as a 
Group I area in the August 7, 1987, Federal Register notice. A Federal 
Register notice announcing all areas designated nonattainment for PM-10 
at enactment of the 1990 amendments was published on March 15, 1991 (56 
FR 11101). The boundaries of the Phoenix nonattainment area were set 
forth in a November 6, 1991, Federal Register notice (56 FR 56694, 
codified for the State of Arizona at 40 CFR 81.303).
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    \1\ EPA revised the NAAQS for particulate matter on July 1, 1987 
(52 FR 24672), replacing standards for total suspended particulate 
with new standards applying only to particulate matter up to 10 
microns in diameter (PM-10). At that time, EPA established two PM-10 
standards. The annual PM-10 standard is attained when the expected 
annual arithmetic average of the 24-hour samples for a period of one 
year does not exceed 50 micrograms per cubic meter (g/
m3). The 24-hour PM-10 standard of 150 g/
m3 is attained if samples taken for 24-hour periods have 
no more than one expected exceedance per year, averaged over 3 
years. See 40 CFR 50.6 and 40 CFR part 50, appendix K.
    On July 18, 1997, EPA slightly revised both the annual and the 
24-hour PM-10 standard and also established two new standards for 
PM, both applying only to particulate matter up to 2.5 microns in 
diameter (PM-2.5) (62 FR 38651).
    This finding applies to the outstanding obligation of the State 
to submit for the Phoenix metropolitan PM-10 nonattainment area a 
plan addressing the 24-hour and annual PM-10 standards, as 
originally promulgated.
    Breathing particulate matter can cause significant health 
effects, including an increase in respiratory illness and premature 
death.
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    Once an area is designated nonattainment, section 188 of the 
amended Act outlines the process for classification of the area and 
establishes the area's attainment date. In accordance with section 
188(a), at the time of designation, the Phoenix area was initially 
classified as moderate by operation of law with an attainment date of 
December 31, 1994.
    The Act further provides that moderate areas that the Administrator 
finds have failed to attain by their moderate area deadlines are 
reclassified to serious by operation of law, CAA section 188(b)(2). 
Reclassified areas are then required to submit revised SIPs to address 
the serious area PM-10 requirements within 18 months of the effective 
date of the reclassification, CAA section 189(a)(2).
    On May 10, 1996, EPA published a final reclassification of the 
metropolitan Phoenix PM-10 nonattainment area to serious (61 FR 21372). 
Pursuant to section 189(b)(2), the State of Arizona was thus required 
to submit a serious area plan addressing both PM-10 NAAQS for the area 
by December 10, 1997, 18 months after the effective date of the 
reclassification.
    These requirements, as they pertain to the Phoenix nonattainment 
area, include:
    (a) Provisions to assure that the best available control measures 
(BACM) (including such reductions in emissions from existing sources in 
the area as may be obtained through the adoption, at a minimum, of best 
available control technology (BACT)) for the control of PM-10 shall be 
implemented no later than 4 years after the area is reclassified, (CAA 
section 189(b)(1)(B));
    (b) A demonstration (including air quality modeling) that the plan 
will provide for attainment as expeditiously as practicable but no 
later than December 31, 2001, or an alternative demonstration that 
attainment by that date would be impracticable and that the plan 
provides for attainment by the most expeditious alternative date 
practicable (CAA section 189(b)(1)(A)(i) and (ii)); and
    (c) Quantitative milestones which are to be achieved every 3 years 
and which demonstrate reasonable further progress toward attainment by 
December 31, 2001 (CAA section 189(c)).

B. Residual Moderate Area Planning Requirements in the Phoenix 
Metropolitan Area

    On May 14, 1996--just days after the reclassification was 
published--the Court of Appeals for the Ninth Circuit found that the 
Phoenix moderate area PM-10 plan failed to address the 24-hour PM-10 
standard as required by the Clean Air Act (Ober v. EPA, 84 F.3d 304 
(9th Cir. 1996)). As a result, the Court mandated that EPA require 
``the State to submit a separate demonstration of the implementation of 
all `reasonably available control measures' targeting the 24 hour 
standard violations; attainment and `reasonable further progress' for 
the 24 hour standard.'' 84 F.3d at 316.

[[Page 9424]]

    In order to comply with the court's order without diverting 
resources from the serious area planning effort, EPA--in consultation 
with the Arizona Department of Environmental Quality (ADEQ) and the 
Maricopa County Environmental Services Department (MCESD)--decided that 
the State would incorporate the moderate area plan elements for the 24-
hour standard into the serious area plan but would split that planning 
effort into two related parts. Accordingly, EPA required submittal of a 
limited, locally-targeted plan (known as the microscale plan) meeting 
both the moderate and serious area requirements for the 24-hour 
standard by May 9, 1997 and a full regional plan meeting those 
requirements for both the 24-hour and annual standards by December 10, 
1997. Letter from Felicia Marcus, EPA, to Russell Rhoades, ADEQ, 
September 18, 1996. Thus, the microscale and regional plans taken 
together would satisfy both the moderate area requirements mandated by 
the court and the serious area planning requirements for both 
standards.
    In brief, the microscale plan was to address the 24-hour standard 
violations at five specific monitors in the metropolitan Phoenix area 
and meet the statutory RACM, BACM, attainment, and RFP requirements for 
moderate and serious PM-10 areas.
    ADEQ submitted the Plan for Attainment of the 24-hour PM-10 
Standard--Maricopa County PM-10 Nonattainment Area (May, 1997) to EPA 
on May 9, 1997. On August 4, 1997 (62 FR 41856), EPA approved in part 
and disapproved in part the microscale plan. For a complete discussion 
of the microscale plan, see the proposed approval/disapproval at 62 FR 
31025 (June 6, 1997).
    The regional plan, representing the balance of Phoenix's serious 
area plan, as well as the additional moderate area elements required by 
Court, was due December 10, 1997, the date established by the 
reclassification. This plan, which was to meet the requirements in 
section 189(b) and (c) of the Act, needed to assure that all statutory, 
regulatory, and policy requirements for serious area PM-10 plans for 
both the annual and 24-hour standards were fully addressed. It was to 
include a regional analysis, based on air quality modeling, that 
demonstrated implementation of BACM, RACM, and additional measures as 
necessary to assure expeditious attainment and quantitative milestones 
and RFP throughout the nonattainment area. As part of this regional 
plan, attainment of both PM-10 standards was to be demonstrated at all 
monitoring sites.

C. Consequences of a Failure To Submit Finding

    The Maricopa Association of Governments (MAG), ADEQ, and MCESD have 
been working on the regional serious area plan since the Phoenix area 
was reclassified in May, 1996. These efforts have included development 
of a regional emission inventory, regional Urban Air Quality modeling, 
and evaluation of candidate BACM.2
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    \2\ MAG has also worked with the cities and towns of Maricopa 
County to adopt measures for PM-10 control that are in addition to 
those adopted for the microscale plan. These measures were submitted 
to EPA on December 11, 1997 as a revision to the SIP and EPA found 
that submittal complete on February 6, 1998. See Letter, David P. 
Howekamp, U.S. EPA--Region 9 to Russell Rhoades, ADEQ, February 6, 
1998. These measures were not intended by the State to constitute 
the serious area PM-10 SIP or any part of that plan and therefore 
their submittal does not affect the finding of failure to submit for 
the serious area plan. See Letter, Russell Rhoades, ADEQ to Felicia 
Marcus, U.S. EPA, Region 9 re: Submittal of the Particulate Matter 
Control Measures for the Maricopa County Nonattainment Area (dated 
December 1997), December 11, 1997.
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    Notwithstanding these significant efforts by the Maricopa 
Association of Governments, the Maricopa County Environmental Service 
Department and the Arizona Department of Environmental Quality, the 
State has failed to meet the December 10, 1997 deadline for the 
required SIP submittals. EPA is therefore compelled to find that the 
State of Arizona has failed to make the required SIP submittals for the 
Phoenix area PM-10 nonattainment area.
    The CAA establishes 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 required under the CAA, is the finding relevant 
to this rulemaking.
    If Arizona has not made the required complete submittals within 18 
months of the effective date of today's rulemaking, pursuant to CAA 
section 179(a) and 40 CFR 52.31, the offset sanction identified in CAA 
section 179(b) will be applied in the affected area. If the State has 
still not made a complete submittal 6 months after the offset sanction 
is imposed, then the highway funding sanction will apply in the 
affected area, in accordance with 40 CFR 52.31.3 In 
addition, CAA section 110(c) provides that EPA must promulgate a 
federal implementation plan (FIP) no later than 2 years after a finding 
under section 179(a).
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    \3\ In a 1994 rulemaking, EPA established the Agency's selection 
of the sequence of these two sanctions: The offset sanction under 
section 179(b)(2) shall apply at 18 months, followed 6 months later 
by the highway sanction under section 179(b)(1) of the Act. EPA does 
not choose to deviate from this presumptive sequence in this 
instance. For more details on the timing and implementation of the 
sanctions, see 59 FR 39832 (August 4, 1994), promulgating 40 CFR 
52.31, ``Selection of sequence of mandatory sanctions for findings 
made pursuant to section 179 of the Clean Air Act.''
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    The 18-month clock will stop and the sanctions will not take effect 
if, within 18 months after the date of the finding, EPA finds that the 
State has made a complete submittal of a plan addressing the serious 
area PM-10 requirements for Phoenix area and the residual moderate area 
planning requirements for the 24-hour standard. In addition, EPA will 
not promulgate a FIP if the State makes the required SIP submittals and 
EPA takes final action to approve the submittals within 2 years of 
EPA's findings (section 110(c)(1) of the Act).4
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    \4\ EPA is already obligated to promulgate a FIP for the 
moderate area plan requirements by July 18, 1998. This FIP 
obligation arose from an incompleteness finding made on the 1991 
submittal of the initial moderate area plan. Under section 179(a) of 
the Act, incompleteness findings also trigger both sanction and FIP 
clocks. While Arizona subsequently completed the submittal and 
turned off the sanction clock, EPA's approval of the moderate area 
plan was vacated in Ober, leaving EPA with a FIP obligation in 
regards to the full moderate area plan.
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II. Final Action

A. Rule

    EPA is making findings of failure to submit for the Phoenix PM-10 
nonattainment area, due to failure of the State to submit SIP revisions 
addressing (1) the Clean Air Act's moderate area plan requirements for 
the regional aspects of the 24-hour PM-10 standard and (2) the Act's 
serious area plan requirements for the annual PM-10 standard and the 
regional aspects of the 24-hour standard.

B. Effective Date Under the Administrative Procedures Act

    Because EPA is issuing this action as a rulemaking, the 
Administrative Procedures Act (APA) applies.
    The action will be effective on the date this action is signed, 
February 6, 1998. 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 an agency has good cause to mandate an earlier 
effective date. This action concerns SIP submittals that are already 
overdue and the State and general public are aware of applicable 
provisions of the CAA relating to

[[Page 9425]]

overdue SIPs. In addition, this action simply starts a ``clock'' that 
will not result in sanctions for 18 months, and that the State may 
``turn off'' through the submission of a 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 action is a final agency action but is not subject to the 
notice-and-comment requirements of the APA, 5 U.S.C. 533(b). EPA 
believes that because of the limited time provided to make findings of 
failure to submit regarding SIP submittals, 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(d)(3). Notice and comment are unnecessary because no EPA 
judgment is involved in making a nonsubstantive finding of failure to 
submit SIPs required by the CAA. 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 
submitted SIPs. See 58 FR 51270, 51272, note 17 (October 1, 1993); 59 
FR 39832, 39853 (August 4, 1994).

III. Administrative Requirements

A. Executive Order 12866

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

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 
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.
    As discussed in section III.C. below, findings of failure to submit 
required SIP revisions do not by themselves create any new 
requirements. Therefore, I certify that today's action does not have a 
significant impact on small entities.

C. Unfunded Mandates Act

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

D. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. However, section 808 provides that any rule for which 
the issuing agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefor in the rule) that notice and 
public procedure thereon are impracticable, unnecessary or contrary to 
the public interest, shall take effect at such time as the agency 
promulgating the rule determines. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established an effective date of February 6, 
1998. EPA will submit 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 prior to publication of 
the rule in the Federal Register. This rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

E. Paperwork Reduction Act

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

F. Judicial Review

    Under CAA Section 307(b)(1), a petition to review today's action 
may be filed in the Court of Appeals for the appropriate circuit by 
April 27, 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) of the Act.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, particulate 
matter, Intergovernmental relations.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: February 6, 1998.
Amy K. Zimpfer,
Acting, Regional Administrator, Region IX.
[FR Doc. 98-4821 Filed 2-24-98; 8:45 am]
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