[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]]

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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.

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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]
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                                                                             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
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                                                                                                      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]
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