[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Proposed Rules]
[Pages 14659-14665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7336]
[[Page 14659]]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-005-ROP; FRL-6315-6]
Approval and Promulgation of Implementation Plans; Phoenix,
Arizona Ozone Nonattainment Area, Revision to the 15 Percent Rate of
Progress Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing minor changes to its 1998 15 percent rate of
progress federal implementation plan (1998 FIP) for the metropolitan
Phoenix (Arizona) ozone nonattainment area. The 1998 FIP contains a
demonstration that the Phoenix metropolitan area has in place
sufficient measures to meet the 15 percent rate of progress (ROP)
requirement in the Clean Air Act. We are proposing changes to the
control strategy for the 15 percent ROP demonstration. The proposed
changes delete or add to the control strategy measures that have
already been adopted in the Phoenix area; we are not proposing any new
emission control regulations. This proposal does not alter our basic
conclusion in the 1998 FIP that the Phoenix metropolitan area will meet
the 15 percent ROP requirement as soon as practicable. We also discuss
our policies on the contingency measures required by the Clean Air Act
for the Phoenix ozone nonattainment area. Finally, we are proposing to
revise the transportation conformity budget set in the 1998 FIP.
DATES: Comments on this proposal must be received in writing by April
26, 1999. Please address your written comments to the contact listed
below. You may also request the opportunity to submit oral comments as
allowed under Clean Air Act section 307(d)(5). EPA must receive your
request for a public hearing by April 5, 1999. If we schedule a
hearing, the record will remain open for 30 days after the hearing for
submission of supplemental or rebuttal information only.
ADDRESSES: Written comments and requests for public hearing should be
addressed to Frances Wicher at the EPA Region 9 address below.
EPA has placed copies of the draft technical support document (TSD)
and other documents relied on for this proposal in a docket. You may
inspect this docket during normal business hours at the following
locations and may request copies of any document contained in the
docket. A reasonable fee may be charged for any requested copies.
U.S. Environmental Protection Agency, Region 9, Office of Air Planning,
Air Division, 17th Floor, 75 Hawthorne Street, San Francisco,
California 94105, (415) 744-1248.
Arizona Department of Environmental Quality, Office of Outreach and
Information, First Floor, 3033 N. Central Avenue, Phoenix, Arizona
85012. (602) 207-2217.
We have also posted copies of this proposal, the draft TSD, and
EPA's 1998 plan and its TSD in the air programs section of EPA Region
9's website, www.epa.gov/region09/air.
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. (415) 744-1248,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Purpose
What Is EPA Proposing in This Action?
EPA is proposing minor changes to its 1998 15 percent rate of
progress federal implementation plan (1998 15 percent ROP FIP or 1998
FIP) for the metropolitan Phoenix (Arizona) ozone nonattainment area.
We published the 1998 FIP in the Federal Register on May 27, 1998 at 63
FR 28898 (Reference 1). The 1998 FIP contains a demonstration that the
Phoenix metropolitan area has in place or will have in place sufficient
measures to meet the 15 percent rate of progress (ROP) requirement in
section 182(b)(1) of the Clean Air Act (CAA) as soon as practicable.
For the complete background to our 1998 FIP, please see section I.B. of
the technical support document (TSD) for the 1998 FIP (Reference 2).
In this action, we are specifically proposing to change the control
strategy (that is, the list of control measures) that makes up the 15
percent ROP demonstration for the Phoenix area by deleting the National
Architectural Coatings Rule and adding Arizona's Clean Burning Gasoline
(CBG) program. Neither of these proposed changes will affect our basic
conclusion in the 1998 15 percent ROP FIP that the Phoenix metropolitan
area has in place sufficient measures to meet the 15 percent rate of
progress requirement in CAA section 182(b)(1) as soon as practicable.
We are proposing these changes under our federal planning authority in
CAA section 110(c).
Later in this preamble, we will also discuss in more detail our
policies on the contingency measures required by CAA section 172(c)(9)
for most ozone nonattainment area plans.
Finally, we will describe our proposed revisions to the
transportation conformity budget set in the 1998 FIP.
Why Is EPA Proposing This Action?
In the 1998 15 percent ROP FIP, we included emission reductions
from three proposed national consumer and commercial product rules in
the ROP demonstration. Since the 1998 FIP was published, EPA has
finalized these rules. The final rules varied from the proposals in
ways that affected either the amount or timing of the emission
reductions that we assumed for them in the 15 percent ROP
demonstration. We stated in the 1998 FIP that if the final rules did
not result in all the emission reductions we expected, we would take
appropriate action to revise the plan. We are proposing the necessary
revisions in this document.
We are also taking this action to comply with the voluntary remand
that we requested and were granted from the Ninth Circuit Court of
Appeals in order to address two issues raised in a petition to review
the 1998 FIP. This petition, Aspegren v. Browner, No. 98-70824, asked
the court to review two aspects of the 1998 FIP and then require us to
take certain actions to revise the plan. The petitioners first asked
the court to require EPA to evaluate the effects of the final federal
rules on the Phoenix 15 percent ROP demonstration and to adopt any
additional rules needed to assure that the 15 percent ROP is met.
Second, the petitioners asked the court to require EPA to adopt and
include in the FIP contingency measures consistent with CAA section
172(c)(9) and EPA guidance. See page 22 of the petitioners' brief in
the case (Reference 3).
We have, therefore, reviewed the effect of the final federal rules
on the 15 percent ROP demonstration in the 1998 FIP and are proposing
changes to the control strategy. We are also responding to the
petitioners' arguments regarding the Clean Air Act and our guidance
requirements for contingency measures.
II. Background on the 15 Percent ROP FIP for Phoenix
What Is the CAA 15 Percent Rate of Progress Requirement?
Clean Air Act section 182(b)(1) requires each ozone nonattainment
area with a classification of moderate or above to develop a plan to
reduce volatile organic compounds (VOC) emissions (a contributor to
ozone) in the area by 15 percent from 1990 levels. This plan is
referred to as the 15 percent
[[Page 14660]]
rate of progress plan or the 15 percent ROP plan. The 15 percent ROP
requirement applies only to areas that are not meeting the one-hour
national ozone ambient air quality standard.
In 1991, we classified the Phoenix ozone nonattainment area as
moderate and in 1997 reclassified the area to serious. Therefore the
Phoenix area must meet the 15 percent ROP requirement.
For an area to show that it meets the 15 percent ROP requirement,
it must show that future emissions in the area will be equal to or less
than a target level of emissions that meets the 15 percent reduction.
CAA section 182(b)(1) has detailed instructions and several
restrictions for calculating the required target level.
We calculated the 15 percent ROP target for the Phoenix area in the
1998 FIP. This calculation is documented in sections II.B. and III.B.
in the Technical Support Document (TSD) for the 1998 FIP (Reference 2).
The target level for the Phoenix area is not affected by the changes we
are proposing to the control strategy and remains the same as in the
1998 FIP.
The Clean Air Act requires ozone nonattainment areas to show the 15
percent ROP by November 15, 1996. Even though that date has passed, the
Act's 15 percent ROP requirement still applies to the Phoenix area.
However, because the date has passed, in order to show that the Phoenix
area meets the 15 percent ROP requirement, we now have to show that the
15 percent ROP will be met ``as soon as practicable.'' In summary, this
means that we have to show the plan includes all available measures
that could meaningfully advance when the 15 percent ROP is met in
Phoenix. For a more detailed description of the ``as soon as
practicable'' requirement for 15 percent ROP, please see page 3687 of
the proposal for the 1998 FIP (Reference 4).
What Is in the 1998 15 Percent ROP FIP?
The 1998 FIP included our demonstration that the Phoenix area would
have sufficient controls in place to meet the 15 percent rate of
progress requirement for the Phoenix area by no later than April 1,
1999. The FIP also showed that April 1, 1999 is the earliest date by
which the 15 percent reduction could be met considering the
availability of practicable measures for the Phoenix area. See page
3689 in the proposal for the 1998 FIP (Reference 4).
In the demonstration, we relied on a set of promulgated and
proposed federal measures as well as numerous State measures that we
had previously approved. These measures and their expected emission
reductions are identified in Table 5 of the proposed FIP, see page 3690
in the proposal for the 1998 FIP (Reference 4).
The proposed federal rules that we included in the 15 percent ROP
demonstration are three rules that reduce emissions from certain
consumer and commercial products: (1) architectural coatings (e.g.,
paints, stains, and finishes), (2) automobile refinish coatings, and
(3) consumer products (e.g., household cleaning products, personal
grooming products). At the time we issued the 1998 15 percent ROP FIP
in May 1998, we had proposed these rules and were required by a court
order to finalize them by mid-August 1998. We had been developing these
rules for several years and had issued guidance memoranda allowing
states to take a specified emission reduction credit for each measure
in their 15 percent plans. For a further discussion of these measures
and the credit allowed for them, see page 3691 in the proposal for the
1998 FIP (Reference 4).
The 1998 15 percent ROP FIP also included a ``as soon as
practicable'' analysis which showed that the applicable implementation
plan contains all VOC control measures that are practicable for the
Phoenix area and that meaningfully accelerate the date by which the 15
percent level is achieved. For the 1998 FIP, we defined ``to
meaningfully accelerate the date by which the 15 percent is
demonstrated'' to mean to advance the demonstration date by three or
more months. For a more detailed description of how we applied the ``as
soon as practicable'' requirement in the 1998 15 percent ROP FIP,
please see page 3691 in the proposal for the 1998 FIP (Reference 4).
III. Proposed Changes to the 1998 15 Percent ROP FIP
How Did the Changes to the Final National Rules Affect the Emission
Reductions Included in the 1998 FIP?
In the FIP, EPA estimated that the proposed national rules would
reduce emissions in the Phoenix area by 4.5 metric tons per day (mtpd)
by April 1, 1999.
The final rules were published in the Federal Register on September
11, 1998. We made changes to the final rules in response to public
comments that we received on the proposals. Most of the changes had no
effect on the expected emission reductions from the rules. A few
changes, however, did reduce slightly the emission reductions expected
from the autobody coatings rule and delayed all or some of the emission
reductions from the other two rules beyond April 1, 1999. See section
II.B. in the draft TSD for this proposal (Reference 5).
Table 1 presents the effects of these rule changes on the
anticipated emission reductions in the 1998 15 percent ROP FIP. In
total, the rule changes reduce emission reductions creditable by April
1, 1999 from the national rules by 1.3 mtpd. For the detailed analysis
of these changes, see section II.B. in draft TSD for this proposal
(Reference 5).
Table 1.--Summary of Changes to Emission Reductions From National Rules for April 1, 1999
[Metric Tons per Day]
----------------------------------------------------------------------------------------------------------------
Reductions Net loss in
Rule Change assumed in Reductions emission
1998 FIP from rules reductions
----------------------------------------------------------------------------------------------------------------
Architectural Coatings (most limits Delay in effective date to 9/11/ 0.6 0 -0.6
effective 9/11/99). 99.
Automobile Refinish Coatings (most Reduction in effectiveness from 1.4 1.2 -0.2
limits effective 1/11/99). 37% to 33%.
Consumer Products (most limits effective Delay in effective date for 2.5 2 -0.5
12/10/98). pesticides until 12/10/99.
-------------------------------------
Total............................... ................................ 4.5 3.2 -1.3
----------------------------------------------------------------------------------------------------------------
[[Page 14661]]
What Effect Do These Changes in Emission Reductions Have on the 15
Percent ROP Demonstration in the 1998 FIP?
Because the federal measures are slightly less effective than we
originally assumed, total emissions in the Phoenix area will be 1.3
mtpd higher than we expected in the 1998 FIP. We originally projected
that the Phoenix area would meet the 15 percent ROP target emissions
level on April 1, 1999 with 0.3 mtpd to spare. Increasing total
emissions in the area by 1.3 mtpd will mean that instead of
demonstrating the 15 percent ROP on April 1, 1999 with a small cushion
of excess emission reductions, the area will be 1.0 mtpd short of its
15 percent ROP target level on that date.
How Is EPA Proposing To Revise the 1998 FIP To Account for the Changes
to the National Rules?
We are proposing to revise the control strategy in the 1998 FIP to
assure that the 15 percent ROP continues to be demonstrated as soon as
practicable in the Phoenix area. We are proposing to revise the control
strategy by deleting the National Architectural Coatings Rule and
adding, in its place, Arizona's Clean Burning Gasoline (CBG) program.
We are proposing to delete the National Architectural Coatings Rule
because emissions from this rule will no longer be relied on in the
Phoenix 15 percent ROP demonstration. Emissions reductions from this
rule will not occur until September 11, 1999, well after the date the
15 percent ROP will be met in the Phoenix area. We are proposing to add
Arizona's CBG rule to the control strategy to make up the emission
reductions lost or delayed from the national rules.
Table 2 lists the measures in the proposed revised control
strategy.
Table 2.--Proposed Revised Control Strategy for the 1998 15 Percent Plan ROP FIP for the Metropolitan Phoenix
Ozone Nonattainment Area
----------------------------------------------------------------------------------------------------------------
Adjusted
1996
Category Approval status reduction
(mtVOC/d)
----------------------------------------------------------------------------------------------------------------
Arizona Vehicle Emissions Inspection Program.............. Approved 60 FR 22518 (May 8, 1995).... 3.3
Arizona Summertime Gasoline Volatility Limitation (7.00 Approved 62 FR 31734 (June 11, 1997).. 13
psi RVP) (on-road and nonroad).
Federal RFG--Phase I (on-road and nonroad)................ Approved June 3, 1997 (62 FR 30260)... 6
National Phase I Non-Road Engines Standards............... Promulgated July 3, 1995 (60 FR 34582) 9.1
MCESD Rules 331, 336, 337, 342, 346, and 351.............. Approval signed 1/20/97............... 11.3
Stage II vapor recovery................................... Approved 11/1/94 (59 FR 54521)........ 9.8
MCESD Rule 335 Architectural coatings..................... Approved 1/6/92 (57 FR 354)........... 2.9
Autobody refinishing (national rule)...................... Promulgated September 11, 1998 (63 FR 1.2
48806).
Consumer products (national rule)......................... Promulgated September 11, 1998 (63 FR 2
48819).
Additional Increment for CBG (partial credit)............. Approved 2/10/98 (63 FR 6653)......... 2
----------------------------------------------------------------------------------------------------------------
On February 10, 1998, EPA approved into the Arizona state
implementation plan, the State's Cleaner Burning Gasoline (CBG) program
for the Phoenix nonattainment area. 63 FR 6653. The CBG program
requires gasoline to be reformulated to reduce emissions of VOCs from
automobiles. The program is being implemented in two stages. From June
to September of 1998, gasoline sold in the Phoenix area had to meet
standards similar to the federal phase I reformulated gasoline (RFG)
program or California's Phase II RFG program. California Phase II RFG
is generally considered to reduce emissions more in the Phoenix area
than federal RFG. Starting May 1, 1999, gasoline sold in the Phoenix
area has to meet standards similar to EPA's Phase II RFG program or
California's Phase II RFG program.
The switch from a fuel similar to federal phase I RFG to a fuel
similar to federal phase II RFG will result in additional emissions
reductions of 2.0 mtpd from Phoenix on-road motor vehicles as of May 1,
1999. Please see, section III.A. and Appendix A of the draft TSD for
this proposal (Reference 5) for the complete documentation of this
emissions reduction.
How Does This Proposed Revision Affect When the 15 Percent ROP Will Be
Demonstrated in the Phoenix Area?
We concluded in the 1998 FIP that the Phoenix metropolitan area has
in place sufficient measures to meet the 15 percent rate of progress
requirement as soon as practicable (ASAP) and that there were no other
measures for the Phoenix area that could meaningfully advance the date
by which the 15 percent ROP was demonstrated. We estimated the ``as
soon as practicable'' demonstration date to be April 1, 1999. See page
3689 of the proposal for the 1998 FIP (Reference 4).
The second stage of the Arizona CBG program will not produce the
additional 2.0 mtpd reduction until it begins on May 1, 1999. The 15
percent ROP target level on May 1, 1999 is 231.2 mtpd. Total Phoenix-
area VOC emissions on May 1, 1999 before reductions from the CBG
program are factored in will be 232.0 mtpd, 0.8 mtpd above the target
level. When the 2-ton reduction from the CBG program is factored in,
total emissions in the Phoenix area will be 230.0 mtpd, well below the
231.2 mtpd target level. See section III.A. in the draft TSD for this
proposal (Reference 5). Therefore, our proposal to revise the 1998 FIP
to replace the lost reductions from the federal rules with reductions
from the CBG rule will cause the date on which the 15 percent ROP is
demonstrated in the Phoenix area to move from April 1, 1999 to the CBG
stage II start date of May 1, 1999.
Will the 15 Percent ROP Goal Still Be Achieved as Soon as Practicable?
Because the demonstration date is later, we must re-evaluate the
basic conclusion in the 1998 FIP that sufficient creditable measures
are in place in the Phoenix area to assure that the 15 percent ROP goal
will be met as soon as practicable.
The revised demonstration date is less than 2 months away. This
time period is so short that we can not complete this rulemaking prior
to May 1, 1999 and still provide an adequate period for the public to
comment and then for sources
[[Page 14662]]
to comply with any new rules. We are, therefore, proposing to conclude
that the Phoenix metropolitan area has in place sufficient measures to
meet the 15 percent rate of progress requirement as soon as practicable
and that there were no other measures available for the Phoenix area
that could meaningfully advance the date by which the 15 percent ROP is
demonstrated.
IV. CAA Section 172(C)(9) Contingency Measures
What Are the Clean Air Act's Requirements for Contingency Measures?
Section 172(c)(9) of the Clean Air Act requires that states submit
contingency measures for their ozone nonattainment areas that will be
implemented if their nonattainment plans fail to meet a ROP goal or to
attain the national ozone standard by the required attainment date. The
Act also requires that a state be able to implement its selected
contingency measures without taking any further actions. We have
discussed the Act's requirements for the section 172(c)(9) contingency
measures and their role in nonattainment plans in more detail in
section IV of the draft TSD for this proposal (Reference 5).
Other sections of the Act require contingency measures for other
specific potential failures such as a failure of a serious or above
ozone nonattainment area to meet a ROP goal (see section 182(c)(9)). We
are not concerned here with these other requirements because they did
not apply to the Phoenix area at the time its 15 percent ROP plan was
due.
What Is EPA's Guidance for the Section 172(c)(9) Contingency Measures
in Ozone Nonattainment Areas?
The Clean Air Act does not say how many contingency measures are
required, what emission reductions they must achieve, or when a state
must submit them. To fill this gap in the Act, we addressed these
issues in our guidance documents.
For ozone nonattainment areas, we established guidelines that
contingency measures should presumptively provide a VOC emission
reduction of 3 percent of 1990 levels. We reason that the contingency
measures should ensure an appropriate rate of progress in reducing
emissions while a state revised its nonattainment plan following a
failure to meet a ROP goal or to attain. We consider 3 percent an
appropriate reduction because it is the annual rate of progress
required by the Act after 1996. See pages 13510-13511 of our General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990 (the General Preamble) (Reference 6).
We also set the submittal date for the contingency measures as not
later than November 15, 1993. We used our general authority in CAA
section 172(b) to set this date. Section 172(b) allows us to establish
submittal dates where the Act does not provide a specific date;
however, the section limits how long we can give a state to submit a
required element of a nonattainment plan. This limit in section 172(b)
meant that we could have set a date earlier than, but not any later
than November 15, 1993 for submittal of the section 172(c)(9)
contingency measures. We decided that November 15, 1993 was the
appropriate submittal date for the section 172(c)(9) contingency
measures ``since States must demonstrate attainment of the 15 percent
milestone at this time.'' See page 13511 of the General Preamble
(Reference 6).
Are the 172(c)(9) Contingency Measures a Required Part of 15 Percent
ROP Plans?
The commenter on the 1998 FIP proposal read the Clean Air Act and
EPA guidance to require contingency measures as a necessary part of a
complete 15 percent ROP plan submittal. The commenter also stated his
position that we could not act on a 15 percent ROP plan without
concurrently acting on contingency measures. The commenter provided no
discussion or references in support of his position. See comment letter
from the Arizona Center for Law in the Public Interest (ACLPI)
(Reference 7).
The Aspegren petitioners, in seeking review of our 1998 FIP, also
relied on this reading to request the court to order us to include
contingency measures in the 1998 15 percent ROP FIP. The petitioners,
however, provided an extended argument for their position. The
commenter's and petitioners' reading of the Act and our guidance is
incorrect.
The Clean Air Act requires states to submit nonattainment plans
that consist of numerous individual items that work together to provide
progress toward and attainment of an air quality standard in a
nonattainment area. While the various plan items may (and occasionally
need to) refer to and/or depend on each other, each has its own unique
Clean Air Act mandate and approval criteria and, therefore, each is a
separate and distinct element of a nonattainment plan.
One of these individual plan items is contingency measures; another
is a 15 percent ROP demonstration. The Act does not require that each
individual element of a nonattainment plan, such as the 15 percent ROP
demonstration, contain contingency measures. The Act's structure also
allows us to approve or disapprove contingency measures independently
from our actions on the 15 percent ROP plan.
Our guidance also does not treat the section 172(c)(9) contingency
measures as a necessary part of a complete and approvable 15 percent
ROP plan. As we discussed above, we could have set a due date for the
contingency measures that was earlier than the one set in the CAA for
the 15 percent ROP plans. The fact that we elected to require
contingency measures to be submitted on the same date the CAA required
submittal of the 15 percent ROP plans does not mean that one of these
items is a subpart of the other.
The Aspegren petitioners point to two EPA guidance documents to
support their reading. The first of these guidance documents is the
General Preamble (Reference 6) which gives our preliminary
interpretation of the Clean Air Act's requirements for nonattainment
areas. The second is Guidance for Growth Factors, Projections, and
Control Strategies for the 15 Percent Rate of Progress Plans (Reference
8) which provides detailed technical guidance on preparing 15 percent
ROP demonstrations and certain other Clean Air Act requirements.
The petitioners list a total of four statements in these two
guidance document which they interpret to require contingency measures
in 15 percent ROP plans. Two of these statements simply give our
rationale for selecting the November 15, 1993 submittal date for the
contingency measures. We discussed this rationale above.
The other two statements use the term ``15 percent rate-of-progress
plans'' as a compact reference to all the multiple submittals due at
the same time as the 15 percent ROP plans. Along with the 15 percent
ROP plan submittal and the section 172(c)(9) contingency measures
submittal, states were also required to submit their attainment
demonstrations for moderate ozone areas, and the section 182(c)(9)
contingency measures for serious and above ozone nonattainment areas on
November 15, 1993.
EPA has issued numerous guidance documents in addition to the ones
cited by the petitioners that address the 15 percent ROP plans and the
other submittals that were also due November 15, 1993. None of these
documents states or even implies that the contingency measures are part
of 15 percent ROP plans. Please see the draft
[[Page 14663]]
TSD for this action (Reference 5) for a complete discussion of the
statements cited by the Aspegren petitioners, our other guidance
documents, and other documents cited by the petitioners. See also
section IV of the draft TSD for this proposal (Reference 5).
While the petitioners may dispute this interpretation of our
guidance documents, we believe as the Agency that wrote the documents,
we are best able to interpret them. See, e.g., Arkansas v. Oklahoma,
503 U.S. 91, 110, 112 (1992) and Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 512 (1994). We have consistently treated the section
172(c)(9) contingency measures as separate from the 15 percent ROP plan
not only in our numerous guidance documents but also in our application
of this guidance to rulemakings approving individual 15 percent plans
across the country. In these rulemakings, we have consistently
evaluated the approvability of the 15 percent plans without regard to
the presence, absence, or approvability of contingency measures. Some
of these rulemakings are listed in Appendix B to the draft TSD for this
proposal (Reference 5).
V. Proposed Transportation Conformity Budget
What Are Transportation Conformity and a Transportation Conformity
Budget?
Section 176(c) of the Clean Air Act requires that federally funded
or approved transportation actions in nonattainment areas ``conform''
to, that is support, the area's air quality plans. Conformity ensures
that federal transportation actions do not worsen an area's air quality
or interfere with its meeting the air quality standards.
One of the primary tests for conformity is to show that
transportation plans and improvement programs will not cause motor
vehicle emissions higher than the levels needed to make progress toward
and to meet the air quality standards. These motor vehicle emissions
levels are set in the area's air quality plans and are known as the
``transportation conformity budget.''
What Transportation Conformity Budget Is EPA Proposing?
We are proposing to establish a transportation conformity budget of
87.1 metric tons of VOC per average summer day. This proposed budget
has been calculated as described in section V of the draft TSD for this
proposal (Reference 5). It reflects all on-road mobile source control
measures that will be in place by May 1, 1999: the implementation of
Arizona's enhanced vehicle inspection program, the State's limitation
on the volatility of gasoline sold in the Phoenix area, and Phase II of
the State's Cleaner Burning Gasoline program.
This proposed budget will replace the 76.7 metric tons of VOC per
average summer day budget set in the 1998 FIP. See page 28903 of the
1998 FIP (Reference 1).
Why Is the Proposed Budget Higher Than the Budget in the 1998 FIP?
We erred in calculating the budget in the 1998 FIP. We are
proposing to correct that error here and to include the reductions from
the State CBG program in the budget.
We calculated total on-road motor vehicle emissions in the 1998 FIP
by multiplying the vehicle miles traveled in the Phoenix area in 1996
by motor vehicle emission factors for 1999. This calculation followed
our policies for demonstrating the 15 percent ROP after 1996 which
require that the ROP demonstration be based on 1996 activity levels and
the controls in the 15 percent ROP plan even if emission reductions
from those controls did not happen until after 1996. We then used the
resulting on-road motor vehicle emissions total as the emissions budget
for transportation conformity.
This budget number, however, is the product of 1996 travel levels
and 1999 control levels. The combination of travel levels from one year
and control levels from another year does not happen in reality and
therefore does not create real a emissions level against which the
conformity of a transportation plan can be judged. To create a real
emissions level for conformity that reflects the controls in the 15
percent ROP plan, the budget should be a product of travel and control
levels for the same year. Because the Act requires the 15 percent ROP
plan to address growth only through 1996, the appropriate year for
calculating the conformity budget in 15 percent ROP plans is 1996. The
proposed conformity budget is, therefore, a product of 1996 travel and
1996 control levels. These 1996 control levels however, account for all
the on-road motor vehicle controls in the proposed revisions to the 15
percent ROP FIP. Please see section V of the draft TSD for this
proposal (Reference 5) for the fuller discussion of the error and the
correction.
Consultation Process
Our transportation conformity rules require that we consult with
appropriate local, State and federal transportation agencies as well as
local and state air pollution control agencies before setting a final
transportation conformity budget. Therefore, between this proposal and
our final action, we will be consulting with these agencies on this
proposed transportation conformity budget and the methods and
assumption we used to calculate it.
VI. Conclusion
Under our authority in CAA section 110(c) and for the reasons
discussed above, EPA is proposing to determine that the Phoenix
metropolitan area has in place sufficient control measures to meet the
15 percent rate of progress requirement in CAA section 182(b)(1)(A) as
soon as practicable. This proposed determination is based on our
analysis of the effect of the final federal measures (which were
originally relied on in proposed form) on the 1998 15 percent ROP FIP
and the proposed addition of Arizona's Cleaner Burning Gasoline Program
and proposed deletion of the National Architectural Coatings Rule from
the control strategy for the 15 percent ROP demonstration. It is also
based on our reanalysis of the ``as soon as practicable'' demonstration
in that previous FIP.
EPA is also proposing to revise the transportation conformity
budget to 87.1 metric tons of VOC per average summer day.
VII. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735; October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may: (1) Have an annual effect on
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) materially alter the budgetary impact of entitlement,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order
[[Page 14664]]
12866 and is therefore not subject to OMB review.
B. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
EPA to prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure of $100
million or more in any one year by state, local, and tribal
governments, in aggregate, or by the private sector. Section 203
requires EPA to establish a plan for obtaining input from and informing
any small governments that may be significantly or uniquely affected by
the rule. Section 205 requires that regulatory alternatives be
considered before promulgating a rule for which a budgetary impact
statement is prepared. EPA must select the least costly, most cost-
effective, or least burdensome alternative that achieves the rule's
objectives, unless there is an explanation why this alternative is not
selected or this alternative is inconsistent with law.
This proposed rule does not include a Federal mandate and will not
result in any expenditures by State, local, and tribal governments or
the private sector. Therefore, EPA has not prepared a budgetary impact
statement or specifically addressed the selection of the least costly,
most cost-effective, or least burdensome alternative. Because small
governments will not be significantly or uniquely affected by this
rule, EPA is not required to develop a plan with regard to small
governments.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
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 small governmental
jurisdictions. This proposed rule will not have a significant impact on
a substantial number of small entities because it imply proposes a
revision to a demonstration based on previously established
requirements and contains no additional requirements applicable to
small entities. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
This proposed rule contains no information requirements subject to
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
E. Applicability of Executive Order 13045: Children's Health Protection
This rule is not subject to E.O. 13045, entitled Protection of
Children from Environmental Health Risks and Safety Risks (62 FR 19885,
April 23, 1997), because it is not economically significant under E.O.
12866 and it does not involve decisions on environmental health risks
or safety risks that may disproportionately affect children.
F. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
This proposal will not create a mandate on State, local or tribal
governments. The rule will not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
G. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments or EPA consults with those
governments. If EPA complied by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
This proposal will neither create a mandate nor impose any
enforceable duties on tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
H. The National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995
(NTTAA), section 12(d), Public Law 104-113, requires federal agencies
and departments to use technical standards that are developed or
adopted by voluntary consensus standards bodies, using such technical
standards as a means to carry out policy objectives or activities
determined by the agencies and departments. If use of such technical
standards is inconsistent with applicable law or otherwise impractical,
a federal agency or department may elect to use technical standards
that are not developed or adopted by voluntary consensus standards
bodies if the head of the agency or department transmits to the Office
of Management and Budget an explanation of the reasons for using such
standards.
This proposed rule does not include technical standards for
exposure limits; therefore, EPA is not considering the use of any
voluntary consensus standards.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone.
Dated: March 19, 1999.
Carol M. Browner,
Administrator.
References
1. 63 FR 28898-28904 (May 27, 1998); Approval and Promulgation
of Implementation Plans; Phoenix, Arizona Ozone Nonattainment Area,
15 Percent Rate of Progress Plan and 1990 Base Year Emission
Inventory; Final rule.
2. Air Division, U.S. EPA, Region 9, ``Final TSD for the Notice
of Final Rulemaking on
[[Page 14665]]
the Clean Air Act Section 182(b)(1) 15 Percent Rate of Progress
Requirement for the Phoenix Metropolitan Area,'' May 18, 1998.
3. Brief for the Petitioners, Carolyn Aspegren and David Matusow
vs. Carol Browner, Administrator, and U.S. EPA (No. 98-70824),
October 13, 1998.
4. 63 FR 3687-3693 (January 26, 1998); Approval and Promulgation
of Implementation Plans; Phoenix Arizona Ozone Nonattainment Area,
15 Percent Rate of Progress Plan and 1990 Base Year Emission
Inventory; Proposed rule.
5. Air Division, U.S. EPA, Region 9, ``Draft Addendum to the
Technical Support Document for the Notice of Final Rulemaking on the
Clean Air Act Section 182(b)(1) 15 Percent Rate of Progress
Requirement for the Phoenix Metropolitan Ozone Nonattainment Area,''
March 18, 1999.
6. 57 FR 13498 (April 16, 1992). State Implementation Plans;
General Preamble for the Implementation of Title I of the Clean Air
Act Amendments of 1990. General Preamble for future proposed
rulemakings.
7. Letter, David S. Baron, Assistant Director, ACLPI, to Frances
Wicher, EPA Region 9, February 24, 1998.
8. Guidance for Growth Factors, Projections, and Control
Strategies for the 15 Percent Rate of Progress Plans, Office of Air
Quality Planning and Standards, U.S. EPA. EPA-452/R-93-002, March
1993.
[FR Doc. 99-7336 Filed 3-25-99; 8:45 am]
BILLING CODE 6560-50-U