[Federal Register Volume 63, Number 101 (Wednesday, May 27, 1998)]
[Rules and Regulations]
[Pages 28898-28904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13984]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-005-ROP FRL-6101-9]
Approval and Promulgation of Implementation Plans; Phoenix,
Arizona Ozone Nonattainment Area, 15 Percent Rate of Progress Plan and
1990 Base Year Emission Inventory
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is determining, pursuant to its federal planning authority
in Clean Air Act (CAA) section 110(c), that the Phoenix, Arizona ozone
nonattainment area has in place sufficient control measures to meet the
15 percent rate of progress (ROP) requirement in Clean Air Act (CAA)
section 182(b)(2). EPA is also approving, under CAA sections 110(k) and
182(a)(1), the 1990 base year emissions inventory for the Phoenix
metropolitan area that was submitted to EPA by the State of Arizona on
April 1, 1993.
EFFECTIVE DATE: June 26, 1998.
ADDRESSES: Copies of the documents relevant to this action, including
the technical support document (TSD), are contained in the docket for
this rulemaking. The docket is available for inspection during normal
business hours at the following locations:
U.S. Environmental Protection Agency, Region 9, Office of Air Planning,
Air Division, 17th Floor, 75 Hawthorne Street, San Francisco,
California 94105. Phone: (415) 744-1248.
Arizona Department of Environmental Quality, Library, 3033 N. Central
Avenue, Phoenix, Arizona 85012. (602) 207-2217.
Copies of this notice and the TSD are also available in the air
programs section of EPA Region 9's website, http://www.epa.gov/
region09.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning
(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, California 94105. Phone: (415) 744-1248. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. Clean Air Act Requirements
The Phoenix metropolitan area was originally classified as a
moderate ozone nonattainment area on November 6, 1991.1
Section 182(b) of the Clean Air Act (CAA or Act) requires that each
state in which all or part of a moderate ozone nonattainment area is
located submit, by November 15, 1992, an inventory of actual emissions
from all sources, as described in sections 172(c)(3) and 182(a)(1), in
accordance with guidance provided by the Administrator. Section
182(b)(1)(A) of the CAA also requires states with moderate and above
ozone nonattainment areas to develop plans to reduce volatile organic
compounds (VOC) emissions by 15 percent, net of growth, from the 1990
baseline. The 15 percent rate of progress (ROP) plans were to be
submitted by November 15, 1993, and the reductions were required to be
achieved by November 15, 1996.
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\1\ The Phoenix metropolitan area was recently reclassified from
moderate to serious for ozone. 62 FR 60001 (November 6, 1997).
Today's action relates to the moderate area CAA requirements for a
1990 base year inventory and a 15 percent ROP demonstration. The
reclassification does not affect the area's continuing obligation to
meet these requirements.
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Although the November 15, 1996 deadline has now passed, the 15
percent ROP requirement remains. Once a statutory deadline has passed
and has not been replaced by a later one, the deadline then becomes
``as soon as possible.'' Delaney v. EPA, 898 F.2d 687, 691 (9th Cir.
1990). EPA has interpreted this requirement to be ``as soon as
practicable.'' See the proposed rule for this final action at 63 FR
3687 (January 26, 1998).2 This requirement is discussed
further in section II below.
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\2\ The reader should consult this proposed rule for a more
detailed discussion of the CAA requirements applicable to today's
final action, the State's 15 percent ROP plans and EPA's evaluation
of them, and EPA's proposed 15 percent demonstration.
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B. Phoenix's 15 Percent Plan
The State of Arizona submitted its initial 15 percent rate of
progress plan for the metropolitan Phoenix area on November 15, 1993
and supplemented it on April 8, 1994. On April 13, 1994 EPA found the
initial plan incomplete because it failed to include, in fully adopted
and enforceable form, all of the measures relied upon in the 15 percent
demonstration. This incompleteness finding started the 18-month
sanction ``clock'' in CAA section 179 and the two-year clock under
section 110(c) for EPA to promulgate a federal implementation plan
(FIP) covering the 15 percent ROP requirement. Subsequently, in
November 1994 and April 1995, Arizona submitted an attainment plan for
the Phoenix area which updated the 15 percent ROP demonstrations.
On May 12, 1995, EPA found the revised 15 percent plan and the
attainment plan complete, turning off the sanctions clock; however,
under section 110(c), the FIP clock continues until EPA approves the 15
percent plan. Since 1995, EPA has acted to approve many of the control
measures relied upon in this plan but has not yet acted on the overall
15 percent plan.
The 15 percent ROP demonstration in the State's plan relied
primarily on improvements to the State's vehicle emissions inspection
and maintenance (I/M) program. Not all the emission reductions
attributed to the program have been realized because of technical
problems with implementing certain parts of the I/M program. In part to
replace these lost emission reductions
[[Page 28899]]
and in part to ensure continued progress toward attainment of the ozone
standard in the Phoenix area, the State opted into EPA's federal
reformulated gasoline (RFG) program in 1997 (60 FR 30260 (June 3,
1997)) and EPA recently approved the State's own, more stringent
Cleaner Burning Gasoline (CBG) program which is intended to replace the
federal program. 63 FR 6653 (February 10, 1998).
C. EPA's 15 Percent ROP Plan
In August 1996, EPA was sued by the American Lung Association of
Arizona and others, American Lung Association of Arizona, Inc. et al.
v. Browner, No. CIV 96-1856 PHX ROS (D. Ariz.) to enforce EPA's
obligation under CAA section 110(c) to promulgate a federal plan for
the 15 percent ROP requirement. On July 8, 1997 a consent decree was
filed in the case establishing a schedule of January 20, 1998 for
proposing and May 18, 1998 for promulgating a 15 percent ROP plan.
EPA's obligation to promulgate a federal plan is relieved to the extent
that it has approved State measures.
The State's 15 percent plan as revised and submitted in 1993
through 1995 does not reflect the changes to the control strategy
necessitated by the problems with the enhanced I/M program and the
implementation of the federal RFG program, nor does it include the
recalculation of the target emission level that EPA guidance requires
if post-1996 emissions reductions (such as those from the RFG program)
are to be credited to the 15 percent plan. As a result, EPA has not
received a complete state submittal containing a revised 15 percent ROP
demonstration that it could act on without additional analysis, public
hearing and adoption by the State. Thus, EPA is complying with the ALAA
consent decree today by promulgating, pursuant to its CAA section
110(c) FIP authority, a federal 15 percent ROP plan for the Phoenix
area.
D. Proposed Action
On January 26, 1998 (63 FR 3687), EPA proposed to determine that
the Phoenix area will have sufficient controls in place by no later
than April 1, 1999 to meet the 15 percent rate of progress requirement
and that this date is the most expeditious date practicable for
achieving the 15 percent target, based on the set of controls EPA has
proposed for crediting in the 15 percent demonstration and the
unavailability of any other practicable controls that could advance the
date. The technical basis for this determination and the list of
control measures that provide the required 15 percent VOC reduction are
summarized in the proposal and are fully documented in the technical
support document (TSD) that accompanies this rulemaking.
EPA also proposed to approve the 1990 base year emissions inventory
for the Phoenix metropolitan area that was submitted to EPA by the
State of Arizona on April 1, 1993. EPA's review of this inventory is
also summarized in the proposal and fully documented in the TSD.
II. Public Comment and EPA Responses
EPA received only one set of comments on its proposed determination
that the Phoenix, Arizona ozone nonattainment area has in place
sufficient control measures to meet the 15 percent ROP requirement in
CAA section 182(b)(2). These comments were submitted by the Arizona
Center for Law in the Public Interest (ACLPI) on behalf of the
plaintiffs in ALAA.
EPA has responded to most significant comments below and has
provided full responses to all comments in the TSD that accompanies
this rulemaking.
Comment: ACLPI claims that EPA's proposal is flawed because it does
not propose FIP measures as an alternative to approving a State 15
percent plan, and without such an alternative proposal, EPA's decision
making process here will be inherently biased, unfair and violative of
the Administrative Procedures Act. ACLPI states that the only way to
negate this bias and prejudgment is for EPA to immediately propose a
FIP, so that it has an alternative to approval of the State's
demonstration.
Response: This comment, as well as others discussed below, reflects
a basic misapprehension of the nature of EPA's January 26, 1998
proposal. Contrary to ACLPI's claims, EPA did not propose to approve or
otherwise act on Arizona's 15 percent SIP. Rather, the Agency proposed
a 15 percent ROP FIP under its federal planning authority in CAA
section 110(c).3
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\3\ EPA did at the same time propose to approve under CAA
section 110(k) the State's 1990 Base Year Emission Inventory. This
inventory was required by CAA section 182(a)(1) and was submitted
separately from the 15 percent plan. See 63 FR 3688.
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Nowhere in the proposal did EPA state or otherwise indicate that it
was proposing to approve the State's 15 percent plan. In fact, in the
section discussing its FIP obligation under ALAA, EPA concluded that it
did ``not have in front of it a complete state submittal containing a
revised 15 percent ROP demonstration that it could act on without
additional analysis, public hearing and adoption by the State.''
Emphasis added. 63 FR 3688. In the conclusion section of the proposal,
EPA stated that it was acting pursuant to its CAA section 110(c)
authority in proposing a determination that the Phoenix metropolitan
area has in place sufficient control measures to meet the 15 percent
ROP requirement. See 63 FR 3692. CAA section 110(c) provides EPA's
authority to promulgate FIPs. In contrast, EPA's SIP approval authority
resides in section 110(k).
The proposed FIP consists of a federal demonstration that already-
approved State and federal control measures, combined with already-
proposed federal measures, are sufficient to provide for a 15 percent
ROP in the Phoenix area as required by CAA section 182(b)(1)(A)(i) and
that there are no other measures which would meaningfully advance the
date by which the 15 percent ROP will be met. See 63 FR 3692. As a
consequence of this finding, EPA did not, and was not required to,
propose any additional federal measures.
EPA notes that this is not the first time it has promulgated an
Arizona FIP that consists only of a demonstration that existing State
and federal measures were adequate. In 1991, EPA promulgated attainment
and maintenance demonstrations for the Pima County (Tucson), Arizona
carbon monoxide (CO) nonattainment area that consisted solely of a
demonstration that existing approved State and federal measures were
adequate for expeditious attainment and long-term maintenance of the CO
standard in the area and that no additional federal measures were
necessary. See 56 FR 5458, 5470 (February 11, 1991).
Comment: ACLPI asserts that if EPA found that the State has not
submitted a complete 15 percent ROP demonstration, it should have
disapproved it on that basis instead of proceeding to supply its own
data and analysis to produce a showing on the State's behalf, an
approach which conflicts with the Act. ACLPI states that EPA's
statutory duty is to approve or disapprove what the state submits and
that EPA cannot write a plan and pretend it is the State's. Finally,
ACLPI states that Arizona has had more than ample time to submit its 15
percent plan and if the State's demonstration is inadequate, then EPA
must disapprove it and adopt a FIP.
Response: As discussed above, EPA proposed a 15 percent ROP
demonstration under its federal planning authority in CAA section
110(c) and did not propose any action on Arizona's 15 percent SIP. When
[[Page 28900]]
acting in place of the State pursuant to a FIP under section 110(c),
EPA ``stands in the shoes of the defaulting State, and all the rights
and duties that would otherwise fall to the State accrue instead to
EPA.'' Central Arizona Water Conservation District v. EPA, 990 F.2d
1531, 1541 (9th Cir. 1993). Thus, in preparing this FIP demonstration,
it is EPA's responsibility to supply its own data and analyses of that
data and to produce the required showing that would otherwise be the
responsibility of the State. Thus, the approach EPA took in this
rulemaking is fully consistent with the Act.
EPA did base its proposed determination in part on a reanalysis of
the State's plan. This approach is reasonable given that the State had
already prepared an extensive and competent technical evaluation of
emission sources in the Phoenix area and the effect of controls on
reducing emissions from those sources. In preparing its own
demonstration, EPA did modify some of the information in the State's
plan to reflect the actual implementation status of the State's I/M
program and the implementation of new federal and state controls.
However, a federal plan based on technical information contained in a
State plan does not constitute or imply approval of that State plan.
Since no action was proposed in regard to the State's 15 percent
ROP plan, comments relating to the appropriate disposition of that plan
are not relevant to this rulemaking. EPA notes that it is not required
in this instance to disapprove the State plan prior to promulgating a
replacement FIP under CAA section 110(c).
EPA acknowledges that it is required by the Act to take action on
submitted SIPs. However, at this time inaction on the State's 15
percent plan in no way affects EPA's promulgation of this FIP.
Comment: ACLPI comments that EPA is extending until April 1, 1999
the time for achieving the 15 percent reduction that was supposed to
have been achieved by November 15, 1996 and has justified this lengthy
extension by adopting several policies that ACLPI asserts are not
consistent with applicable case law or the Clean Air Act.
First, ACLPI states that although it agrees with EPA that Delaney
v. EPA, 898 F.2d 687, 691 (9th Cir. 1990) supplies the relevant test
for compliance once a statutory deadline has passed, it disagrees with
the Agency's interpretation that under the Delaney case, the
appropriate standard is ``as soon as practicable.'' ACLPI notes that
the actual phrase used by the Delaney court was ``as soon as
possible,'' using every available control measure and asserts that the
difference between ``practicable'' and ``possible'' is not merely
semantic. According to ACLPI, ``practicability,'' as used in the Act,
allows for consideration of various economic and social factors in
determining the required speed of progress. ACLPI believes that to say
that the pace for compliance after the Clean Air Act deadline has
passed is still as soon as ``practicable'' is to read the deadline out
of the statute which is why the Delaney court allegedly set a much more
stringent test--compliance as soon as possible--for areas that miss a
statutory deadline.
Response: In Delaney, the Ninth Circuit interpreted the Clean Air
Act requirement for EPA to develop a CO federal implementation
attainment plan for two Arizona areas after the passage of the then
applicable statutory attainment date of December 31, 1987. The Court
concluded that after the passage of that date, ``the national ambient
air quality standards must be attained as soon as possible with every
available measure * * *.'' 898 F.2d at 691. The Delaney Court arrived
at this test by relying on a statement in an EPA guidance document
providing that if a state plan's ``control measures are not adequate to
demonstrate attainment by 1987, additional measures which can be
implemented after 1987 must be identified and adopted and attainment
must be demonstrated by the earliest possible date * * *. 46 Fed. Reg.
7186 (January 22, 1981).'' 4 In another part of the opinion
concerning reasonably available control measures, the Court noted
another EPA guidance document specifying that a control measure would
be deemed not reasonably available if it would not advance attainment,
would cause substantial widespread and long-term adverse impact, or
would take too long to implement. 898 F.2d at 692.
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\4\ Following the Delaney opinion, EPA revoked certain portions
of this guidance document in order to clarify that the Agency did
not intend to require post-1987 plans to include every conceivable
control measure. 55 FR 38326 (September 18, 1990).
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EPA believes that the appropriate interpretation of Delaney's ``as
soon as possible'' test is informed by the Court's acknowledgment of
certain limitations on the speed of compliance as expressed in its
citation of the guidance related to the scope of reasonably available
measures. Therefore, consistently since the Ninth Circuit's opinion,
EPA has framed the ``as soon as possible'' Delaney test, in the post-
statutory attainment deadline context, to mean `` `as expeditiously as
practicable,' by a fixed date,'' and has stated that ``[t]he statute
does not require measures that are absurd, unenforceable, or
impracticable.'' 55 FR 36458, 36505 (Sept. 5, 1990).5 In
addition to applying this interpretation of the Delaney test to
attainment plans after the passage of the statutory attainment
deadline, the Agency has also consistently applied it in its actions on
plans that address the 15 percent requirement following the November
15, 1996 statutory deadline for these plans. See, e.g., 62 FR 31343,
31345-31346 (June 9, 1997) approving the 15 percent ROP SIP for
Philadelphia; 62 FR 33999, 34000-34001 (June 24, 1997) approving the 15
percent ROP SIP for the northern Virginia.
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\5\ In its proposal of an attainment CO FIP for Arizona, EPA
restated its interpretation of the Delaney test as requiring ``a
demonstration of attainment as expeditiously as practicable
utilizing all measures available to the federal government that are
capable of advancing the attainment date, short of those producing
absurd results, such as severe socioeconomic disruptions.'' 55 FR
41204, 41210 (October 10, 1990).
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Moreover, EPA notes that one court, while finding Delaney not
precisely on point for its purpose of fashioning a remedy in a
citizen's enforcement action, nevertheless made some instructive
observations on the relationship between the two standards. The Court
noted that:
although the Delaney opinion utilized the `as soon as possible'
standard employed by EPA guidelines, it did not do so out of
rejection of the `practicable' standard or out of concern that the
two standards differed. Rather it simply had no occasion to compare
them. Indeed the Delaney court appeared to blur them when it
criticized Arizona for rejecting measures without demonstrating that
such measures were `impracticable' or unreasonable.
Citizens for a Better Environment v. Deukmejian, 746 F. Supp. 976, 985
(N.D. Cal. 1990). The Court went on to observe that:
[a]s a practical matter, however, no Court will use its
equitable powers to impose remedies that are irrational, albeit
``possible.'' Thus as long as time is considered paramount, and the
term ``practical'' is strictly construed in keeping with the
purposes of the Act, the ``as expeditiously as practicable''
standard should yield no less results than an ``as soon as
possible'' standard.
The Court concluded that ``when properly interpreted, there is no
practical difference between the two standards.'' Id. EPA agrees with
this assessment.
Furthermore, while EPA believes that it is consistent with the
Delaney test to take into account socioeconomic factors as described
above, the issue is effectively moot with regard to this
[[Page 28901]]
rulemaking. In proposing, for the purposes of its 15 percent
demonstration, that ``as soon as practicable'' is April 1, 1999, the
Agency did not consider any economic or social factors. Rather the
factors EPA considered were the Agency's authority and resources to
implement a measure, whether the measure provided a significant
emission reduction, and whether the measure could be implemented soon
enough to meaningfully advance the date by which the 15 percent
reduction could be demonstrated. The Agency believes, as discussed
above and in response to an additional comment below, that the
consideration of these factors is entirely appropriate and consistent
with both the Clean Air Act and the Delaney opinion.
Comment: ACLPI comments that in its proposed action, EPA asserted
that the 15 percent ROP need not be achieved until April 1, 1999
because (a) that is the soonest such reductions will be achieved under
the State's adopted programs and various adopted and proposed EPA
programs and (b) no other measures are available that would reduce VOC
emissions by more than 0.5 percent or advance achievement of the 15
percent ROP by three or more months. ACLPI asserts that there is
nothing in the Clean Air Act or Delaney that allows de minimis
exemptions for percent reductions or months of delay.
Response: The inherent authority of administrative agencies to
exempt de minimis situations from a statutory requirement has been
upheld in contexts where an agency is invoking a de minimis exemption
as ``a tool to be used in implementing the legislative design when
``the burdens of regulation yield a gain of trivial or no value.''
Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979).
In this rulemaking, EPA has invoked this de minimis doctrine for
gauging when the promulgation of a new control would or would not
contribute to meeting the statutory requirement for a 15 percent ROP in
the Phoenix area as soon as is practicable. EPA has interpreted the
``as soon as practicable'' test to require a showing that the
applicable implementation plan contains all VOC control measures that
are practicable for the area and that meaningfully accelerate the date
by which the 15 percent level is achieved. Measures that provide only
an insignificant additional amount of reductions or could not be
implemented soon enough to meaningfully advance the date by which the
15 percent is demonstrated are not required to be implemented. See
Memorandum, John S. Seitz, Director of the Office of Air Quality
Planning and Standards, and Richard B. Ossias, Deputy Associate General
Counsel to Regional Air Division Directors; ``15 Percent VOC SIP
Approvals and the `As Soon As Practicable' Test;'' February 12, 1997.
For determining whether additional measures were necessary for this
demonstration, EPA proposed to define ``significant emission
reduction'' to be equal to or more than one-half of one percent (0.5
percent) of the total emission reductions needed to meet the 15 percent
ROP requirement in 1999 for the Phoenix nonattainment area, the
equivalent of 0.5 metric tons per day (mtpd). Thus any measures that
would result in less than a 0.5 mtpd reduction by April 1, 1999 were
considered to yield de minimis reductions and were rejected from
further review.
In the context of this rulemaking where the 15 percent ROP will be
achieved within one year, 0.5 mtpd is truly de minimis, representing
one two-hundredths of the emission reductions needed to show the 15
percent ROP. In terms of control requirements, more than 200 of these
``de minimis'' measures would be needed to demonstrate 15 percent ROP
in Phoenix. The federal imposition of a measure or group of measures
with so little impact on the ROP demonstration would be nonsensical.
Thus a regulation imposing one of these de minimis measures would
indeed yield ``a gain of trivial or no value.'' As such, a de minimis
exemption is an entirely ``appropriate tool to be used in implementing
the legislative design'' of the CAA's rate of progress and general FIP
requirements. Alabama Power at 360.
EPA proposed to define ``meaningfully accelerate the date by which
the 15 percent is demonstrated'' as three or more months. EPA has
projected that the 15 percent ROP will be demonstrated in the Phoenix
area by April 1, 1999. Therefore, if a measure could advance that
demonstration date to on or before January 1, 1999, then EPA would
consider that the measure meaningfully accelerated the 15 percent ROP.
In the proposal, EPA explained its selection of three months as a
balance between the environmental benefit of advancing the date and the
potential to trivialize the ``as soon as practicable'' demonstration.
63 FR 3687, 3691.
The 15 percent ROP progress requirement is part of the Act's
overall scheme for ozone attainment. In Phoenix, ozone exceedances
occur during the hot-weather months of May through October. EPA's
proposed three month ``de minimis'' period (January 1 to April 1) falls
well before the beginning of this season and as a result the ozone
benefit of additional controls during this period would be at best,
exceedingly small. Thus, the federal implementation of a measure or
measures whose sole effect would be to advance by less than 3 months
from the April 1, 1999 date on which the 15 percent ROP is met, would
clearly yield ``a gain of trivial or no value.''
EPA does not agree that Delaney bars the use of de minimis
exemptions. As discussed previously, the Delaney court itself
recognized limits on its conclusion that once a statutory deadline has
passed the new deadline becomes ``as soon as possible with all
available measures.'' These limits include not requiring measures that
would not advance attainment, would cause substantial widespread and
long-term adverse impact, or would take too long to implement. These
limits clearly indicate that the Delaney court did not expect EPA to
impose controls that yield no benefit or a benefit that is outweighed
by the implementation burden. Thus, EPA's use of de minimis exemptions
is consistent with Delaney.
Comment: ACLPI notes that EPA predicts that the State will meet the
15 percent reduction target by April 1, 1999 with just 0.3 tons per day
to spare and argues that this is not a credible demonstration given the
size of the inventory and the many uncertainties in EPA's emission
reduction predictions. ACLPI asserts that the record here shows that
emission reductions expected from control measures do not always
materialize.
Response: The statutory requirement for 15 percent ROP
demonstrations is met when the plan demonstrates that it achieves ``at
least a 15 percent'' reduction. See section 182(b)(1)(A)(i). Neither
the Act nor EPA guidance requires 15 percent ROP demonstrations to
include a margin of safety; therefore, reductions greater than the
exact amount needed to demonstrate the 15 percent ROP are not required.
As a result, the amount of excess emissions in the 15 percent
demonstration is immaterial.
Both the base year inventory used to calculate the 15 percent
target emission level and the projected emission inventories and
emission reduction calculations were prepared using generally-accepted
methodologies consistent with Agency guidance. See the TSD for this
rulemaking. As such, they provide a credible and appropriate basis for
the 15 percent demonstration and additional adjustments to account for
uncertainties are not warranted or required. EPA notes that it already
factored into its 15 percent ROP
[[Page 28902]]
demonstration available information on the implementation status of the
control measures.
Because ACLPI neither explains how the size of the inventory
relates to the credibility of the demonstration nor provides specifics
on the ``many uncertainties in EPA's emission reduction predictions''
or instances where the emission reductions may not materialize, EPA is
not able to further respond to this comment.
Comment: ACLPI comments that EPA proposed to credit 4.4 tons per
day in emission reductions from three federal rulemakings that are
still at the proposal stage and asserts that such an approach violates
the Act and EPA policy. ACLPI supports that assertion by stating that
under section 182(b)(1)(c) of the Act, credit can be claimed only for
rules ``promulgated'' by EPA and that EPA policy and the Act also
forbid the granting of emission reduction credit for measures that have
not been legally adopted. ACLPI further argues that there is no
assurance whatsoever that the proposed rules will be adopted in a form
and on a schedule that will assure the projected emission reductions
and without the credit claimed for these measures, the ROP plan does
not demonstrate the required 15 percent reduction and therefore is
legally deficient.
Response: Consistent with the Clean Air Act, its policies and its
actions on other 15 percent plans, EPA is crediting three proposed
national rules in this 15 percent demonstration: consumer products,
autobody refinishing and architectural and industrial maintenance
coatings. As noted in the proposal, each of these rules are required
under CAA section 183(e) and the Agency had recently been sued to
enforce the requirement to promulgate these rules. Since the proposal
the Agency has agreed to a schedule for their promulgation by August
15, 1998. See lodged consent decree in Sierra Club v. Browner, CIV No.
97-984 PLF (D.D.C.).
CAA section 182(b)(1)(A) requires states to submit their 15 percent
SIP revisions by November, 1993. Section 182(b)(1)(C) provides the
following general rule for creditability of emissions reductions
towards the 15 percent requirement: ``emissions reductions are
creditable toward the 15 percent required * * * to the extent they have
actually occurred, as of [November, 1996], from the implementation of
measures required under the applicable implementation plan, rules
promulgated by the Administrator, or a permit under Title V.'' CAA
section 182(b)(1)(D) further states that certain emissions reductions
are not creditable, including reductions from certain control measures
required prior to the 1990 Amendments.
These creditability provisions are ambiguous. Read literally, they
provide that, although the 15 percent SIPs are required to be submitted
by November 1993, emissions reductions are creditable as part of those
SIPs only if ``they have actually occurred, as of [November 1996]''.
This literal reading renders the provision internally inconsistent.
Accordingly, EPA believes that the provision should be interpreted to
provide, in effect, that emissions reductions are creditable ``to the
extent they will have actually occurred, as of [November, 1996], from
the implementation of [the specified measures]'' (the term ``will'' is
added). This interpretation renders the provision internally
consistent.
CAA section 182(b)(1)(C) explicitly includes as creditable
reductions those resulting from ``rules promulgated by the
Administrator.'' This provision does not state the date by which those
measures must be promulgated, i.e., does not indicate whether the
measures must be promulgated by the time the 15 percent SIPs were due
(November, 1993), or whether the measures may be promulgated after this
due date.
Because the statute is silent on this point, EPA has discretion to
develop a reasonable interpretation under Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA believes it
reasonable in the first instance to interpret CAA section 182(b)(1)(C)
to allow areas to credit reductions from federal measures as long as
those reductions are expected to occur by November, 1996, the date for
achieving the 15 percent ROP, even if the federal measures are not
promulgated by the November, 1993 due date for the 15 percent SIPs.
EPA's interpretation is consistent with the Congressionally-
mandated schedule for promulgating regulations for consumer and
commercial products, under section 182(e) of the Act. This provision
requires EPA to promulgate regulations controlling emissions from
consumer and commercial products that generate emissions in
nonattainment areas. Under the statutory schedule, by November, 1993--
the same date that the States were required to submit the 15 percent
SIPs--EPA was to issue a report and establish a rulemaking schedule for
consumer and commercial products. Further, EPA was to promulgate
regulations for the first set of consumer and commercial products by
November, 1995. It is reasonable to conclude that Congress anticipated
that reductions from these measures would be creditable as part of the
15 percent SIPs, as long as those reductions were to occur by November,
1996.
EPA has also established specific policies interpreting the Act
that allow crediting of these proposed national measures in 15 percent
plans. See Memorandum, John S. Seitz, Director, OAQPS to Regional Air
Division Directors; ``Credit for the 15 Percent Rate-of-Progress Plans
for Reductions from the Architectural and Industrial Maintenance
Coating Rule and the Autobody Refinishing Rule;'' November 29, 1994;
Memorandum, John S. Seitz, Director, OAQPS to Regional Air Division
Directors; ``Credit for the 15 Percent Rate-of-Progress Plans for
Reductions from the Architectural and Industrial Maintenance (AIM)
Coating Rule;'' March 22, 1995; Memorandum, John S. Seitz, Director,
OAQPS to Regional Air Division Directors; ``Regulatory Schedule for
Consumer and Commercial Products under Section 182(e) of the Clean Air
Act;'' June 22, 1995; and Memorandum, John S. Seitz, Director of the
Office of Air Quality Planning and Standards, and Richard B. Ossias,
Deputy Associate General Counsel to Regional Air Division Directors;
``15 Percent VOC SIP Approvals and the `As Soon As Practicable' Test;''
February 12, 1997.
While this analysis focuses on SIPs, it applies equally to FIPs. As
noted before, EPA ``stands in the shoes of the State'' when
promulgating a FIP and all the rights and duties available to a state
under the Act become available to EPA in a FIP.
The above analysis also describes statutory provisions that include
specific dates for 15 percent SIP submittals (November 15, 1993) and
implementation (November 15, 1996). While these dates have expired and
new dates for submittal (in this case, promulgation) and implementation
have been developed, EPA does not believe that the expiration of the
statutory dates, and the development of new ones, invalidates the
conclusion that reductions from federal measures promulgated after the
date the 15 percent plan is submitted (or promulgated) can be counted
toward the ROP demonstration.
Because it has agreed to a schedule in a proposed consent decree to
promulgate these national rules by August 15, 1998, EPA intends to
promulgate the rules within 3 months of this FIP promulgation and well
before the April 1, 1999 15 percent ROP demonstration date. As a
result, crediting reductions from these federal measures is also
sensible from an
[[Page 28903]]
administrative standpoint. If it did not credit these national
measures, EPA would need to promulgate compensating rules, applicable
only to Phoenix, to replace their 4.4 mtpd benefit. EPA has already
shown that there are no other measures available that would
meaningfully advance the April 1999 date by which the 15 percent ROP is
demonstrated in the Phoenix area, thus any additional measures would
not result in reductions any sooner than the proposed national rules.
Nor would these potential Phoenix-only measures result in any greater
reductions creditable to the 15 percent plan since they would simply
substitute for the reductions from the national rules.6
Thus, if it did not credit the national measures, EPA would simply be
engaging in a wasteful rulemaking exercise to promulgate measures in
May, 1998 that it could almost immediately withdraw when the national
rules are promulgated in August, 1998.7
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\6\ The statutory requirement EPA is fulfilling here is to
demonstrate a fixed emission reduction of 15 percent from 1990 base
year levels. Emission reductions in excess of this fixed amount are
unnecessary. Since EPA has already concluded that the proposed
national measures combined with other adopted state and federal
measures will result in the required 15 percent ROP as soon as
practicable, additional Phoenix-only federal measures are not
necessary.
\7\ In its rulemakings, EPA strives to take the least intrusive
and most sensible regulatory approach that achieves the statutory
requirements. In this situation, it made no regulatory sense to
ignore these pending national measures (which have already been
proposed and have near-term date for promulgation) that will apply
automatically to Phoenix in favor of promulgating wholly new
Phoenix-specific measures.
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The fact that EPA cannot determine precisely the amount of credit
available for the proposed national measures does not preclude granting
them credit. The credit can be granted as long as EPA is able to
develop reasonable estimates of the amount of VOC reductions from the
measures EPA expects to promulgate. EPA believes that it is able to
develop reasonable estimates, particularly because it has already
proposed and taken comment on the measures at issue, and is expecting
to promulgate final rules in little less than 3 months. Moreover, the
use of estimated emissions and emission reductions rather than actual
measurements is a common and necessary practice in attainment and
reasonable further progress demonstrations because actual measurements,
even for promulgated measures, are seldom available. For example, EPA's
document to estimate emissions, ``Compilation of Air Pollutant Emission
Factors'', January 1995, AP-42), provide emission factors used to
estimate emissions from various sources and source processes. AP-42
emission factors have been used, and continue to be used, by states and
EPA to determine base year emission inventory figures for sources and
to estimate emissions from sources where such information is needed.
This rulemaking is based on the best information currently
available to the Agency on the projected reductions from these proposed
national rules. If these projected reductions turn out to be greater
than the amount it determines to be appropriate after promulgation of
the final rules, then EPA will take appropriate action to revise this
15 percent demonstration.
Comment: ACLPI argues that contrary to EPA's assertion there are a
number of additional control measures that are currently available to
advance the time for achieving the 15 percent ROP including the use of
California's diesel fuel standards (``CARB diesel'') and additional
controls on consumer products, both of which are identified in the
Report of the Arizona Governor's Air Quality Strategies Task Force
(1998) (``1998 Task Force Report'') as are a number of other measures.
Response: ACLPI is correct that the 1998 Task Force Report shows
that adoption of the CARB diesel fuel standards would reduce Phoenix
VOC emissions by 7.1 mtpd in 1999. The report, however, also states
that implementation of this measure would require at least two years
and thus could not occur prior to mid-2000, more than a year after the
April 1, 1999 demonstration date for the 15 percent ROP. The State's
consultant concluded that the two-year implementation schedule was the
minimum necessary after reviewing the refining capacity available to
produce CARB diesel fuel for the Phoenix market. See 1998 Task Force
Report, p. 77. Since EPA has no grounds to dispute the consultant's
conclusions (which were endorsed by the Task Force) regarding the
minimum implementation schedule for CARB diesel, it finds the measure
would not advance the date by which the 15 percent ROP would be met.
The Task Force recommended adoption of California's phase I and
phase II consumer product standards. These standards are more stringent
than EPA's proposed national standards for 13 product categories not
currently regulated in Phoenix: single phase aerosol air fresheners,
engine degreasers, solid or paste forms of furniture maintenance
products, non-aerosol forms of glass cleaners, hairsprays, aerosol
insect repellants, nail polish removers, automotive brake cleaners,
aerosol dust aids, fabric protectants, crawling bug insecticides, and
personal fragrance products.
Except for hairsprays, California's more stringent limits are
already in place. The compliance date for the final VOC limit for
hairsprays is June 1, 1999, two months after the April 1, 1999
demonstration date for 15 percent ROP in Phoenix. The majority of the
emission reductions (or approximately 0.9 metric tons per day) that
would result from implementing CARB's consumer products rule in Phoenix
come from the final hairspray standard. The balance of the tighter CARB
limits produce only a 0.23 mtpd reduction, which EPA finds to be de
minimis.
The 1998 Governor's Task Force evaluated and recommended controls
for not only VOC but also nitrogen oxides, carbon monoxide, particulate
matter and regional haze. These controls range from I/M program
improvements to improved compliance with the area's fugitive dust rules
and include numerous study proposals (e.g., Transit Task Force). Since
ACLPI was not specific about what additional control measures EPA
should evaluate for this plan, it is not possible for EPA to respond in
more detail to this comment.
III. Conclusion
Pursuant to its federal planning authority under CAA section 110(c)
and for the reasons discussed above, EPA is determining that the
Phoenix metropolitan area has in place or will have in place sufficient
control measures to meet the 15 percent ROP requirement for VOCs in CAA
section 182(b)(1)(A) as soon as practicable.
EPA is also approving the State's 1990 base year inventory for the
Phoenix area under CAA sections 110(k)(2) and 182(a)(1).
Under 40 CFR 93.118(e), this final action establishes a VOC
conformity budget of 76.7 metric tons per average summer day based on
the inventory methodology and mobile source emissions model used for
this 15 percent ROP demonstration. This conformity budget is in
addition to, and not in lieu of, the conformity budget established in
the MAG 1993 Ozone Plan for the Maricopa County Area, Modeling
Attainment Demonstration (October 1994).
IV. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget has exempted this action from
E.O. 12866 review.
[[Page 28904]]
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. Section 601 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. sections 603
and 604. Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
This action simply presents the analysis of the emission impacts on
the Phoenix metropolitan area of already adopted or proposed State and
federal rules. This action neither promulgates additional measures nor
requires Arizona or its local jurisdictions to adopt or implement
additional measures beyond those that they currently have adopted and
implemented or have been proposed or implemented at the federal level.
As such, it does not regulate any entities. Therefore, pursuant to 5
U.S.C. 605(b), EPA certifies that today's action does not have a
significant impact on a substantial number of small entities within the
meaning of those terms for RFA purposes.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, when EPA promulgates ``any general notice of proposed
rulemaking that is likely to result in promulgation of any rule that
includes any Federal mandate that may result in the expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more'' in any one year. A ``Federal
mandate'' is defined, under section 101 of UMRA, as a provision that
``would impose an enforceable duty'' upon the private sector or State,
local, or tribal governments'', with certain exceptions not here
relevant. Under section 203 of UMRA, EPA must develop a small
government agency plan before EPA ``establish[es] any regulatory
requirements that might significantly or uniquely affect small
governments.'' Under section 204 of UMRA, EPA is required to develop a
process to facilitate input by elected officers of State, local, and
tribal governments for EPA's ``regulatory proposals'' that contain
significant Federal intergovernmental mandates. Under section 205 of
UMRA, before EPA promulgates ``any rule for which a written statement
is required under [UMRA section] 202'', EPA must identify and consider
a reasonable number of regulatory alternatives and either adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule, or explain why a different
alternative was selected.
As explained above, sections 202, 203, 204, and 205 of UMRA do not
apply to today's action because it does not impose an enforceable duty
on or otherwise affect any entity. Therefore, EPA is not required, and
has not taken, any actions under UMRA.
D. E.O. 13045: Protection of Children From Environmental Health Risks
and Safety Risks
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885 (April 23,
1997)), applies to any rule that EPA determines (1) ``economically
significant'' as defined under E.O. 12866 and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children; and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
Today's final action promulgating a demonstration that the Phoenix
area meets the 15 percent VOC ROP requirement in CAA section
182(b)(1)(A)(i) is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O and
because it does not involve decisions on environmental health risks or
safety risks that may disproportionately affect children.
E. 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. 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).
F. 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 July 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)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone.
Dated: May 18, 1998.
Carol M. Browner,
Administrator.
Title 40, Chapter I of the Code of Federal Regulations 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
2. Section 52.123 is amended by adding paragraph (g) to read as
follows:
Sec. 52.123 Approval status.
* * * * *
(g) Pursuant to the federal planning authority in section 110(c) of
the Clean Air Act, the Administrator finds that the applicable
implementation plan for the Maricopa County ozone nonattainment area
demonstrates the 15 percent VOC rate of progress required under section
182(b)(1)( A)(i).
[FR Doc. 98-13984 Filed 5-26-98; 8:45 am]
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