Final Rule Making Findings of Failure To Submit Required State Implementation Plans for Nonattainment Areas for Ozone

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5536-1]

Final Rule Making Findings of Failure To Submit Required State

Implementation Plans for Nonattainment Areas for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action in making findings, under the

Clean Air Act (CAA or Act), that 10 states and the District of Columbia

failed to make complete ozone nonattainment state implementation plans

(SIP) submittals required for 9 nonattainment areas under the Act.

Under certain provisions of the Act, as implemented consistent with a

memorandum issued by EPA Assistant Administrator Mary D. Nichols, on

March 2, 1995, these states are required to submit SIP measures

providing for certain percentage reductions in emissions of ozone

precursors, termed ``rate of progress'' reductions; as well as SIP

commitments to submit SIP measures providing for the remaining required

rate-of-progress reductions as well as any additional emissions

reductions needed for attainment of the ozone ambient air quality

standards in the affected nonattainment areas.

This action triggers the 18-month time clock for mandatory

application of sanctions in theses states under the Act. This action is

consistent with the CAA mechanism for assuring SIP submission.

EFFECTIVE DATE: This action is effective as of July 3, 1996.

FOR FURTHER INFORMATION CONTACT:

General questions concerning this notice should be addressed to Kimber

Scavo, Office of Air Quality Planning and Standards, Air Quality

Strategies and Standards Division, MD-15, Research Triangle Park, NC

27711; tel. (919) 541-5534. For questions related to a specific area,

please contact the appropriate regional office:

Dave Conroy, Manager, Air Quality Planning Unit, EPA Region I (CAQ),

JFK Federal Building, Boston, Massachusetts 02203-2211, tel. (617) 565-

3255 (Connecticut, New Hampshire)

William S. Baker, Chief, Air Programs Branch, EPA Region II (2AWM-AP);

290 Broadway, New York, New York 10007-1866, tel. (212) 637-4249 (New

York, New Jersey)

Marcia Spink, Associate Director, Air, Toxics and Radiation Division,

EPA Region III (3AT00), 841 Chestnut Building, Philadelphia,

Pennsylvania, 19107, tel. (215) 566-2104 (Delaware, Maryland, Virginia,

District of Columbia)

Steven Rothblatt, Branch Chief, Air Programs Branch, EPA Region V (AR-

18J); 77 West Jackson Blvd., Chicago, IL 60604-3590, tel. (312) 353-

2211 (Illinois, Indiana, Wisconsin)

SUPPLEMENTARY INFORMATION:

I. Background

In 1990, Congress amended the Clean Air Act to address, among other

things, continued nonattainment of the ozone national ambient air

quality standard (NAAQS). Pub. L. 101-549, 104 Stat. 2399, codified at

42 U.S.C., 7401-7671q (1991). The Amendments divide ozone nonattainment

areas into, in general, five classifications based on air quality

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design value; and establish specific requirements, including new

attainment dates, for each classification. CAA Secs. 107(d)(1)(C) and

181.

The 1990 Amendments required states containing the highest

classified ozone nonattainment areas--those classified as serious,

severe, or extreme--to submit SIPs providing for periodic reductions in

ozone precursors of a rate of 9% averaged over every three-year period,

beginning after 1996 and ending with the area's attainment date. CAA

Sec. 182(c)(2)(B). This SIP submission may be referred to as the Rate-

of-Progress, or ROP, SIP. The 1990 Amendments further required these

states to submit a demonstration of attainment (including air quality

modeling) for the nonattainment area, as well as SIP measures

containing any additional reductions that may be necessary to attain by

the attainment date. CAA Sec. 182(c)(2)(A). This SIP submission may be

referred to as the Attainment Demonstration. These CAA provisions

established November 15, 1994, as the required date for these SIP

submittals.

Notwithstanding significant efforts, the states generally were not

able to meet this November 15, 1994 deadline for the required SIP

submissions.

On March 2, 1995, EPA Assistant Administrator Mary D. Nichols sent

a memorandum to EPA Regional Administrators (the March 2, 1995

Memorandum, or Memorandum) recognizing the efforts made by states and

the remaining difficulties in making the ROP and Attainment

Demonstration SIP submittals. The March 2, 1995 Memorandum recognized

that in general, many States have been unable to complete these SIP

requirements within the deadlines prescribed by the Act due to

circumstances beyond their control. These states were hampered by

unavoidable delays in developing the underlying technical information

needed for the required SIP submittals. The Memorandum recognized that

development of the necessary technical information, as well as the

control measures necessary to achieve the large level of reductions

likely to be required, is particularly difficult for the many states

affected by ozone transport.

Accordingly, as an administrative remedial matter, the March 2,

1995 Memorandum indicated that EPA would establish new time-frames for

SIP submittals. The Memorandum called for States seeking to avail

themselves of the new policy to submit, by May 1995, a letter

committing to the new time-frames.

The Memorandum further indicated that EPA would divide the required

SIP submittals into two phases. The Phase I submittals generally

consisted of (i) SIP measures providing for ROP reductions due by the

end of 1999 (the first 9% of ROP reductions); (ii) a SIP commitment

(sometimes referred to as an enforceable commitment) to submit any

remaining required ROP reductions on a specified schedule after 1996

(with submission no later than the end of 1999); and (iii) a SIP

commitment to submit the Attainment Demonstration by mid-1997 (with

submission by no later than the end of 1999 of any additional rules

needed to attain).\1\ The Memorandum indicated that EPA would establish

the end of 1995 as the due date for the Phase I submittals. States

could have proposed a schedule for making the submissions in 1996 if

necessary due to administrative scheduling imperatives (such as the

schedule for legislative sessions).

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\1\ The March 2, 1995 Memorandum established other requirements,

and somewhat different requirements for states other than the

Northeast states. These are described in greater detail in the

enclosures to the findings letters, discussed below, which are

included in the docket to this rulemaking.

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The Phase II submittals were due at specified times after 1996, and

primarily consisted of the remaining ROP SIP measures, the Attainment

Demonstration and required additional rules, and any regional controls

necessary for attainment by all areas in the region.

In addition, the March 2, 1995 Memorandum called for a

collaborative process among the States in the eastern half of the

country to evaluate and address transport of ozone and its precursors.

The Memorandum lead to the formation of the Ozone Transport Assessment

Group (OTAG), which includes representatives of those states; EPA

officials; and interested members of the public, including

environmental groups and industry. As indicated in the Memorandum, EPA

has envisioned that OTAG would complete its work by the end of 1996.

The March 2, 1995 Memorandum was widely circulated, and by June

1995, states opting for the time-frames it described had submitted

letters to EPA generally committing to submit the SIP measures called

for under the Memorandum.

OTAG's first meetings were on May 18, 1995, in Reston, Virginia,

and June 19, 1995, in Washington, D.C. OTAG has continued to meet

regularly since then.

By the first few months of 1996, some states appeared to be lagging

in their compliance efforts with the Phase I deadlines. By memorandum

dated April 19, 1996, Assistant Administrator Nichols directed the

Regional Administrators to determine the status of the state planning

efforts to allow EPA to determine which states were or were not in

substantial compliance with the Phase I deadlines. By letters dated in

May 1996, EPA Regional Administrators informed the states that it was

important that they complete the Phase I submittals as soon as

possible, and requested that they provide EPA with a schedule for

completing these submittals. These letters cautioned that EPA would,

within the near future, evaluate the states' schedule; and that if EPA

considered the schedule insufficiently expeditious, EPA would consider

beginning the process under CAA section 179(a)(1), described below, of

sanctioning states that fail to make required submittals.

The EPA regional offices and state officials discussed the states'

progress, and the states generally developed schedules for completing

the Phase I requirements.

Although EPA recognizes the continued progress states are making in

developing the required SIPs, EPA believes that in most cases, the

schedules presented by the states are not sufficiently expeditious for

the states to be considered in substantial compliance with the Phase I

deadlines.

The 1990 Amendments establish specific consequences if EPA finds

that a State has failed to meet certain requirements of the CAA. Of

particular relevance here is CAA section 179(a)(1), the mandatory

sanctions provision. Section 179(a) sets forth four findings that form

the basis for application of a sanction. The first finding, that a

State has failed to submit a plan or one or more elements of a plan

required under the CAA, is the finding relevant to this rulemaking.

Today, EPA is finding that 10 States and the District of Columbia

have failed to make required SIP submissions for 9 nonattainment areas.

If these States have not made the required complete submittals

within 18 months of the effective date of today's rulemaking, pursuant

to CAA section 179(a) and 40 CFR 52.31, the offset sanction identified

in CAA section 179(b) will be applied in the affected areas. If the

States have still not made a complete submission 6 months after the

offset sanction is imposed, then the highway funding sanction will

apply in the affected areas, in accordance with 40 CFR 52.31. In

addition, CAA section 110(c) provides that EPA promulgate a federal

implementation plan (FIP) no later than 2 years after a finding under

section 179(a).

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The 18-month clock will stop and the sanctions will not take effect

if, within 18 months after the date of the finding, EPA finds that the

State has made a complete submittal as to each of the SIP elements for

which these findings are made. In addition, EPA will not promulgate a

FIP if the State makes the required SIP submittal and EPA takes final

action to approve the submittal within 2 years of EPA's finding.

At approximately the same time as the signing of this notice, EPA

Regional Administrators are sending letters to the 11 States describing

the status of the states' effort and these findings in more detail.

These letters, and the enclosures that they include, are included in

the docket to this rulemaking.

I. Final Action

A. Rule

Today, EPA is making findings of failure to submit for 9

nonattainment areas in 10 states and the District of Columbia, due to

failure to submit complete SIP revisions consisting of the following

three items: (i) A SIP provision requiring emission reductions of 9% in

ozone precursors from the end of 1996 to 1999; (ii) SIP commitments to

adopt an Attainment Demonstration; and (iii) SIP commitments to adopt

any additional rules needed to complete the requirements for ROP

reductions after 1999, and until the attainment date.

The states, nonattainment areas (and classification of the

nonattainment areas) that are receiving these findings are listed

below. Each state is receiving all three findings for each of its

areas, except that states with areas classified as serious are

receiving only the first two findings. Serious areas have an attainment

date of 1999, and thus are not required to submit ROP SIPs after 1999.

Connecticut: Greater CT Area (serious); New York-Northern New Jersey-

Long Island, NY-NJ-CT, Area (severe).

New Hampshire: Boston-Lawrence-Worcester, MA-NH, Area (serious);

Portsmouth-Dover-Rochester, NH, Area (serious).

New Jersey: New York-Northern New Jersey-Long Island, NY-NJ-CT, Area

(severe); Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD, Area (severe).

New York: New York-Northern New Jersey-Long Island, NY-NJ-CT, Area

(severe).

Delaware: Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD, Area (severe).

Maryland: Baltimore Area (severe); Philadelphia-Wilmington-Trenton, PA-

NJ-DE-MD, Area (severe); Washington, DC-MD-VA, Area (serious).

Virginia: Washington, DC-MD-VA, Area (serious).

District of Columbia: Washington, DC-MD-VA, Area (serious).

Illinois: Chicago-Gary-Lake County, IL-IN, Area (severe).

Indiana: Chicago-Gary-Lake County, IL-IN, Area (severe).

Wisconsin: Milwaukee-Racine, Area (severe).

B. Effective Date Under the Administrative Procedures Act

EPA has issued this action as a rulemaking because EPA has treated

this type of action as rulemaking in the past. However, EPA believes

that it would have the authority to issue this action in as an informal

adjudication, and is considering which administrative process--

rulemaking or informal adjudication--is appropriate for future actions

of this kind.

Because EPA is issuing this action as a rulemaking, the

Administrative Procedures Act (APA) applies.

Today's action will be effective on July 3, 1996. Under the APA, 5

U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days

after the date of publication in the Federal Register if the agency has

good cause to mandate an earlier effective date. Today's action

concerns SIP submissions that are already overdue; and EPA previously

cautioned the affected states that the SIP submissions were overdue and

that EPA was considering the action it is taking today. In addition,

today's action simply starts a ``clock'' that will not result in

sanctions against the states for 18 months, and that the states may

``turn off'' through the submission of complete SIP submittals. These

reasons support an effective date prior to 30 days after the date of

publication.

C. Notice-and-Comment Under the Administrative Procedures Act

This notice is a final agency action, but is not subject to the

notice-and-comment requirements of the APA, 5 U.S.C. 553(b). EPA

believes that because of the limited time provided to make findings of

failure to submit and findings of incompleteness regarding SIP

submissions or elements of SIP submission requirements, Congress did

not intend such findings to be subject to notice-and-comment

rulemaking. However, to the extent such findings are subject to notice-

and-comment rulemaking, EPA invokes the good cause exception pursuant

to the APA, 5 U.S.C. 553(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 SIP submissions required by the Clean

Air Act. Furthermore, providing notice and comment would be

impracticable because of the limited time provided under the statute

for making such determinations. Finally, notice and comment would be

contrary to the public interest because it would divert agency

resources from the critical substantive review of complete SIPs. See 58

FR 51270, 51272, n.17 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug. 4,

1994).

D. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 review.

E. Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,

EPA must undertake various actions in association with proposed or

final rules that include a Federal mandate that may result in estimated

costs of $100 million or more to the private sector; or to State,

local, or tribal governments in the aggregate.

In addition, under the Unfunded Mandates Act, before EPA

establishes any regulatory requirements that may significantly or

uniquely affect small governments, including tribal governments, EPA

must have developed, under section 203 of the UMRA, a small government

agency plan.

EPA has determined that today's action is not a Federal mandate.

The various CAA provisions discussed in this notice require the states

to submit SIPs. This notice merely provides a finding that the states

have not met those requirements. This notice does not, by itself,

require any particular action by any State, local, or tribal

government; or by the private sector.

For the same reasons, EPA has determined that this rule contains no

regulatory requirements that might significantly or uniquely affect

small governments.

F. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,

EPA must prepare a regulatory flexibility analysis assessing the impact

on small entities of any rule subject to the notice-and-comment

rulemaking requirements. Because this action is exempt from such

requirements, as described above, it is not subject to the RFA.

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G. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) of the APA, as amended by the Small

Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA

submitted, by the effective date of this rule, 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 General

Accounting Office. This rule is not a ``major rule'' as defined by APA

Sec. 804(2), as amended.

As noted above, EPA is issuing this action as rulemaking. There is

a question as to whether this action is a rule of ``particular

applicability'', under section 804(3)(A) of APA as amended by SBREFA--

and thus exempt from the congressional submission requirements--because

this rule applies only to named states. In this case, EPA has decided

to err on the side of submitting this rule to Congress, but will

continue to consider this issue of the scope of the exemption for rules

of ``particular applicability''.

H. Paperwork Reduction Act

This rule does not contain any information collection requirements

which require OMB approval under the Paperwork Reduction Act (44 U.S.C.

3501 et seq.).

I. Judicial Review

Under CAA Section 307(b)(1), a petition to review today's action

may be filed in the Court of Appeals for the District of Columbia

within 60 days of July 10, 1996.

Dated: July 3, 1996.

Mary D. Nichols,

Assistant Administrator.

[FR Doc. 96-17545 Filed 7-9-96; 8:45 am]

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