[Federal Register Volume 64, Number 105 (Wednesday, June 2, 1999)]
[Rules and Regulations]
[Pages 29570-29573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13806]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX 107-1-7407; FRL-6349-3]


Finding of Failure To Submit Required State Implementation Plans 
for Ozone; Texas; Dallas/Fort Worth Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: We, the EPA, are taking final action to find that the State of 
Texas failed to submit the required State Implementation Plan (SIP) for 
the Dallas/Fort Worth (DFW) ozone nonattainment area, as required by 
the Federal Clean Air Act (Act). The required submittal is the serious 
area plan requirements for attainment of the ozone National Ambient Air 
Quality Standards (NAAQS). The deadline for the State to make the 
submittal was

[[Page 29571]]

March 20, 1999. The State submitted a SIP for the DFW area on March 18, 
1999. The submittal included an attainment demonstration, a Rate-Of-
Progress (ROP) Plan, and revisions to the State's rules for Nitrogen 
Oxides (NOX) and Volatile Organic Compounds (VOC) Reasonably 
Available Control Technology (RACT), and NOX New Source 
Review, to make them applicable to the DFW area. We find that the 
attainment demonstration is incomplete because it does not demonstrate, 
based on photochemical modeling, that the SIP will result in attainment 
as expeditiously as practicable but no later than November 15, 1999, as 
required by the Act. We find that the ROP Plan is incomplete because it 
does not demonstrate a rate of progress in emission reductions of at 
least three percent-per-year, after accounting for growth, during the 
1997 to 1999 period as required by the Act. The finding of an 
incomplete submittal for the attainment demonstration and the ROP Plan 
triggers the 18-month time clock for mandatory application of sanctions 
and a two-year time clock for a Federal Implementation Plan (FIP) under 
the Act. This action is consistent with the Act's mechanism for 
assuring timely SIP submissions.

EFFECTIVE DATE: May 13, 1999.

ADDRESSES: Copies of documents relevant to this action are available 
for public inspection during normal business hours at the following 
locations. Anyone wanting to examine these documents should make an 
appointment with the appropriate office at least two working days in 
advance.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
    Texas Natural Resource Conservation Commission, Office of Air 
Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Herbert R. Sherrow, Jr. of the EPA 
Region 6 Air Planning Section at (214) 665-7237 or at the address 
above.

SUPPLEMENTARY INFORMATION:

I. Final Action

What Action is EPA Taking?

    We find that the State of Texas failed to submit by March 20, 1999, 
all elements of the SIP revisions necessary for the DFW ozone 
nonattainment area to meet the Act's serious area plan requirements for 
the 1-hour ozone NAAQS under section 182(c).
    The elements that the State failed to submit are a complete 
attainment demonstration as required by section 182(c)(2)(A)and a 
complete post-1996 ROP Plan under section 182(c)(2)(B) and (C).
    This finding starts the sanctions clocks in section 179(a) and FIP 
clock in section 110(c). If Texas has not corrected and resubmitted the 
complete serious area plan elements by November 13, 2000, the offset 
sanction in section 179(b)(2) and 40 CFR 52.31 will be imposed on the 
DFW nonattainment area. If Texas still has not corrected and 
resubmitted the complete serious area plan elements by May 14, 2001, 
the highway funding sanction in section 179(b)(1) will also be imposed 
in accordance with the Act and 40 CFR 52.31. Also, section 110(c) of 
the Act requires EPA to promulgate a FIP no later than two years after 
a finding of failure to submit.

What is the Effective Date for This Rule?

    The effective date for this rule is May 13, 1999, the date this 
action was signed.
    The EPA is treating this action as a ``rule.'' Under the 
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), agency rule 
makings may take effect before 30 days after the date of publication in 
the Federal Register if an agency has good cause to mandate an earlier 
effective date. This action concerns implementation plan submittals 
that are already overdue and for which the State of Texas has submitted 
some incomplete elements. We have previously alerted Texas through our 
public comments and meetings that the SIP submittal, as proposed, would 
not be complete. Also, on May 3, 1999, we sent a letter to Texas 
stating that we were planning to take the action we are taking today. 
Consequently, the State has been on notice that today's action was 
pending. The State and general public are aware of applicable 
provisions of the Act that relate to failure to submit a required 
implementation plan. In addition, this action simply starts a 
sanctions/FIP clock that will not result in offset sanctions for 18 
months and that the State may stop by submitting a serious ozone area 
implementation plan that is complete under section 110(k) of the Act 
and approvable under section 110 and part D of the Act. These reasons 
support an effective date prior to 30 days after the date of 
publication.

Why is EPA Taking This Action Without Proposing and Taking Comments 
First?

    This action is a final agency action but is not subject to the 
notice-and-comment requirements of the APA, 5 U.S.C. 553(b). We believe 
that, because of the limited time provided to make findings of failure 
to submit regarding SIP submittals, Congress did not intend such 
findings to be subject to notice-and-comment rulemaking. However, to 
the extent such findings are subject to notice-and-comment rulemaking, 
we invoke the good cause exception in the APA, 5 U.S.C. 553(b)(3)(B). 
Notice and comment are unnecessary because no EPA judgment is involved 
in making a nonsubstantive finding of failure to submit elements of an 
implementation plan required by the Act. Furthermore, providing notice 
and comment would be impracticable because of the limited time provided 
under the Act for making such determinations.
    Finally, notice and comment would be contrary to the public 
interest because it would divert our resources from the critical 
substantive review of submitted implementation plans. See 58 FR 51270, 
51272, note 17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).

II. Background

Why is This SIP Submittal Required?

    We reclassified the DFW area from moderate to serious ozone status 
on February 18, 1998, since the area had not attained the NAAQS by 
November 15, 1996 (63 FR 8128). As a result, the State was required to 
submit a serious area SIP by March 20, 1999. The SIP required 
attainment and rate of progress demonstrations and revised rules for 
major source thresholds and a more stringent New Source Review program.
    The state submitted revisions to its rules for NOX RACT, 
NOX NSR, and VOC RACT with the March 18, 1999, submittal. We 
have reviewed these rules for administrative completeness and found 
them complete on the date of completeness finding. We will take action 
on them in separate Federal Register notices.
    The State had already submitted the other elements of a serious 
area plan (e.g.; enhanced Inspection and Maintenance Program and a 
Clean Fuel Fleet program).

Why is the Attainment Demonstration and the Rate-of-Progress Plan 
Incomplete?

    The attainment demonstration is incomplete because it does not 
demonstrate, based on photochemical modeling, that the SIP will result 
in attainment as expeditiously as practicable but no later than 
November 15, 1999 (section 182(c)(2)(A)). The photochemical modeling 
submitted is sensitivity modeling which only identifies emission 
reduction targets

[[Page 29572]]

with no specific control strategy or attainment date.
    The ROP Plan is incomplete because it does not demonstrate a rate 
of progress in emission reductions of at least three percent-per-year, 
after accounting for growth, during the 1997 to 1999 period (section 
182(c)(2)(B)). The plan shows a VOC target of 28.68 tons per day and 
reductions of 22.81 tons per day which leaves the plan 5.87 tons per 
day short of meeting the target. The plan does not substitute 
NOX reductions and meet the target (section 182(c)(2)(C). 
The Plan's NOX table, on its face, considers NOX 
reductions but those NOX reductions do not offset growth in 
NOX emissions since 1990; therefore, they are not creditable 
to the shortfall.

What are the Consequences of This Action?

    The Act establishes specific consequences if a state fails to 
submit a required SIP. These consequences include the mandatory 
sanctions provision in section 179(a)(1) and the federal planning 
requirement in section 110(c).
    Under section 179(a) and 40 CFR 52.31, if Texas has not corrected 
the incomplete elements and resubmitted a complete SIP within 18 months 
of the effective date of today's rulemaking, the 2 to 1 offset sanction 
of section 179(b) will apply in the DFW nonattainment area. This 
sanction requires a company that is constructing a new or modifying an 
existing facility over a certain size to reduce emissions in the area 
by two tons for every new ton the new/modified facility will emit.
    If the State has still not corrected the incomplete elements and 
resubmitted a complete SIP six months after the offset sanction is 
imposed, then the highway approval and funding sanction will apply in 
the nonattainment area. This sanction prohibits the U.S. Department of 
Transportation from approving or funding all but a few specific types 
of transportation projects.
    The order of sanctions, offsets sanctions first then highway 
sanctions, is documented in our regulations at 40 CFR 52.31.
    In addition to these sanctions, section 110(c) requires us to issue 
a FIP no later than two years after a finding under section 179(a). 
This FIP would need to address any outstanding serious area ozone 
requirements for an attainment demonstration and a ROP Plan that we had 
not yet approved.
    The sanctions will not be imposed if, prior to the implementation 
date of the offset sanction, we determine that the State has submitted 
a complete plan addressing the two incomplete elements of the serious 
area ozone requirements for the DFW area. If the state relies on the 
control measures in the existing approved contingency plan for its ROP 
Plan and/or attainment demonstration, the State would also need to 
submit a new contingency plan. In addition, we are not required to 
promulgate a FIP if the State makes the required SIP submittals and we 
take final action to approve the submittals within two years of the 
effective date of today's finding.
    This preamble merely summarizes the Act's requirements for serious 
ozone area plans and the Act's provisions regarding the consequences of 
the failure to submit a required implementation plan. The specific 
language of the Act and our regulations and policies interpreting the 
Act, rather than the language of this document, govern the exact 
submittals required from the State and the implementation of any 
sanctions.

III. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 12875: Enhancing The Intergovernmental Partnership

    Under E.O. 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, E.O. 12875 requires EPA to provide to the OMB 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, E.O. 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.''
    Today's rule does not create a mandate on State, local, or tribal 
governments. The rule does not impose any enforceable duties on any of 
these entities. This action implements EPA's requirements to review 
SIPs for completeness under 40 CFR Part 51, Appendix V. The SIP 
submission requirements for stopping clocks are not judicially 
enforceable. Accordingly, the requirements of section 1(a) of E.O. 
12875 do not apply to this rule.

C. Executive Order 13045

    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: (1) is determined to be ``economically 
significant'' as defined under E.O. 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have 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.
    The EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This final rule is not subject to E.O. 13045 
because it is not an economically significant regulatory action as 
defined by E.O. 12866, and it does not establish a further health or 
risk-based standard because it implements a previously promulgated 
health or safety-based standard.

D. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under E.O. 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 complies by consulting, E.O. 13084 requires EPA to 
provide to the OMB, 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, E.O. 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide

[[Page 29573]]

meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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. Since this final rule is not subject to 
notice-and-comment requirements under the APA, or any other statutes, 
it is not subject to sections 603 or 604 of the RFA. Furthermore, this 
action will not have a significant impact on a substantial number of 
small entities because these findings under section 110 and subchapter 
I, part D of the Act do not, in-and-of-themselves, directly impose any 
new requirements on small entities. See Mid-Tex Electric Cooperative, 
Inc. v. FEC, 773 F.2nd 327 (D.C. Cir. 1985) (agency's certification 
need only consider the rule's impact on entities subject to the 
requirements of the rule). Instead, this action makes findings of 
failure to submit and establishes a schedule for Texas to stop the 
clocks and does not directly regulate any entities. Therefore, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities.

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated annual costs to State, 
local, or tribal governments in the aggregate; or to private sector, of 
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    Sections 202 and 205 do not apply to this action because the 
findings that Texas failed to submit the required SIP for the DFW area 
do not, in-and-of-themselves constitute a Federal mandate, because they 
do not impose any enforceable duty on any entity. In addition, the Act 
does not permit EPA to consider the type of analyses described in 
section 205 in determining whether a State has failed to submit a 
required SIP. Finally, section 203 does not apply to the action because 
the SIP submittal schedule to stop the clocks would only affect the 
State of Texas, which is not a small government.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act (CRA), 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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary, or contrary to public interest. This 
determination must be supported by a brief statement, 5 U.S.C. 808(z). 
As stated previously, EPA has made a good cause finding, including the 
reasons therefor, and established an effective date of May 13, 1999, 
the date of signature. The 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 action 
is not a ``major'' rule as defined by 5 U.S.C. 804(2).

H. Paperwork Reduction Act

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

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 2, 1999. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 13, 1999.
Gregg A. Cooke,
Regional Administrator, Region 6.
[FR Doc. 99-13806 Filed 6-1-99; 8:45 am]
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