Approval and Promulgation of Implementation Plans; Arizona Maricopa Nonattainment Area; Carbon Monoxide

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ033-0007 FRL-5628-6]

Approval and Promulgation of Implementation Plans; Arizona--

Maricopa Nonattainment Area; Carbon Monoxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving contingency measures adopted pursuant to the

Clean Air Act (CAA) and submitted to EPA by the State of Arizona as

revisions to the Arizona State Implementation Plan (SIP) for the

Maricopa (Phoenix) carbon monoxide (CO) nonattainment area. Based on

the approval of these measures, EPA is withdrawing its federal

contingency process for the Maricopa area and its proposed list of

highway projects subject to delay.

EFFECTIVE DATE: December 2, 1996.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, A-2-1, Air and Toxics

Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne

Street, San Francisco, California 94105, (415) 744-1248.

SUPPLEMENTARY INFORMATION:

I. Background

A. Federal Contingency Process

On February 11, 1991, EPA disapproved elements of the Arizona CO

SIP and promulgated a limited federal implementation plan (FIP) for the

Maricopa County (Phoenix) CO nonattainment area in response to an order

of the Ninth Circuit Court of Appeals in Delaney v. EPA, 898 F.2d 687

(9th Cir. 1990).1 For a discussion of Delaney, the SIP

disapproval, and the FIP, see the notice of proposed rulemaking (NPRM)

for the FIP, 55 FR 41204 (October 10, 1990) and the notice of final

rulemaking (NFRM) for the FIP, 56 FR 5458 (February 11, 1991).

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\1\ While the FIP was promulgated after the enactment of the

1990 Clean Air Act Amendments, it was designed, pursuant to the

Delaney Court's order, to comply with the CAA and EPA guidance as

they existed prior to the 1990 Amendments.

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As required by the Delaney order, the FIP contained a two-part

contingency process consistent with the Agency's 1982 ozone and CO SIP

guidance regarding contingency procedures.2 These two parts were a

list of transportation projects that would be delayed while an

inadequate plan was being revised and a procedure to adopt measures to

compensate for unanticipated emission reduction shortfalls. The FIP

contingency process is described in detail at 56 FR 5458, 5470-5472.

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\2\ ``State Implementation Plans; Approval of 1982 Ozone and

Carbon Monoxide Plan Revisions for Areas Needing an Attainment Date

Extension. Final Policy.'' 46 FR 7182 at 7187, 7192 (January 22,

1981) (hereafter referred to as ``1982 guidance'').

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Implementation of the FIP contingency process was triggered by

violations of the CO standard in Phoenix in December 1992. On June 28,

1993 (58 FR 5458), EPA published a notice of proposed rulemaking

proposing to find that the implementation plan was inadequate

[[Page 51600]]

and that additional control measures were necessary to attain and

maintain the CO national ambient air quality standard (NAAQS) in the

Maricopa area. In the same notice, EPA also proposed an updated list of

highway projects subject to delay while the implementation plan was

being revised. On August 9, 1993, EPA issued a SIP call under section

110(k)(5) of the CAA requiring that Arizona submit a new plan by July

19, 1994. Arizona submitted SIP revisions to EPA in November 1993,

March 1994 and August 1995 that contained new control measures and a

demonstration that the area would attain the CO NAAQS by December 31,

1995, the attainment deadline under the 1990 Clean Air Act Amendments

for CO nonattainment areas classified as ``moderate'' such as

Phoenix.3 See CAA section 186(a). As a result, EPA took no final

action on the June 28, 1993 proposal and is today withdrawing that

proposal.

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\3\ At the time of the SIP submittals that are the subject of

today's document, Phoenix was classified as moderate and, because

its design value is under 12.7 ppm, was considered a low moderate

area. EPA has recently found that the Phoenix area failed to attain

the CO NAAQS by the statutory deadline. See 61 FR 39343 (July 29,

1996) As a consequence of this finding, the area has been

reclassified to ``serious'' under section 186(b)(2). As a result,

the area is now subject to the section 187(b) requirements for

serious CO areas. These requirements include those applicable to CO

areas with design values between 12.7 ppm and 16.4 ppm (high

moderate areas) in section 187(a). For the purpose of today's

action, however, the relevant CAA requirements are those that apply

to low moderate CO nonattainment areas. The serious area

requirements are referred to throughout this notice when they inform

individual discussions.

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B. CAA Contingency Requirements and EPA Guidance

The Clean Air Act Amendments (CAAA) of 1990 completely revised the

nonattainment provisions of the Act, part D of title I, repealing the

generally applicable provisions of section 172 and adopting substantial

new requirements and planning and attainment deadlines applicable to CO

nonattainment SIPs. See sections 171-193. A number of these provisions

are discussed in detail in section III of this document.

Among the new requirements in the 1990 CAAA is section 172(c)(9)

which provides for contingency measures. Section 172(c)(9) requires

that plans for nonattainment areas ``shall provide for the

implementation of specific measures to be undertaken if the area fails

to make reasonable further progress, or to attain the national ambient

air quality standard by the attainment date applicable under this part

[D]. Such measures shall be included in the plan revision as

contingency measures to take effect in any such case without further

action by the State or the Administrator.''

EPA has issued several guidance documents related to the post-1990

requirements for CO SIPs. Among them is the ``General Preamble for the

Implementation of Title I of the Clean Air Act Amendments of 1990.''

See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,

1992) (hereafter ``General Preamble'') and the ``Technical Support

Document to Aid the States with the Development of Carbon Monoxide

State Implementation Plans,'' July 1992 (hereafter ``1992 TSD'').

For CO, the General Preamble addresses specifically only the

contingency measures required under section 187(a)(3) of the Act for

moderate areas with design values above 12.7 ppm (high moderate areas).

See 57 FR 13498, 13532-13533. As a low moderate area, section 187(a)(3)

did not apply to Phoenix. In connection with the discussion of

requirements for moderate ozone areas, the General Preamble addresses

generally the section 172(c)(9) requirements which are also applicable

to low moderate CO nonattainment areas such as Phoenix. See 57 FR

13498, 13510-13511. In both discussions, EPA states that the

contingency measure provisions of the 1990 Amendments supersede the

contingency requirements contained in the 1982 guidance.

The 1992 TSD contains a discussion directly applicable to low

moderate CO areas. See pages 5-6. This guidance explains that the

trigger for implementation of the section 172(c)(9) measures is a

finding by EPA that such an area failed to attain the CO NAAQS by the

applicable attainment date and that states must show that their

contingency measures can be implemented with minimal further action on

their part and with no additional rulemaking actions upon such a

finding.

In the 1992 TSD, EPA notes that section 172(c)(9) does not specify

how many contingency measures are needed or the magnitude of emission

reductions they must provide if an area fails to attain the CO NAAQS.

EPA suggests that one appropriate choice would be to provide for the

implementation of sufficient reductions in vehicle miles traveled (VMT)

or emission reductions to counteract the effect of one year's growth in

VMT while the state revises its SIP to incorporate the new requirements

for a serious CO area. Thus, in suggesting a benchmark of one year's

growth in VMT, EPA concluded that the purpose of the Act's contingency

requirement is to maintain the actual attainment year emissions level

while the serious area attainment demonstration is being developed.

II. Summary of Proposed Action

On April 9, 1996 (61 FR 15745), EPA proposed to approve two

contingency measures submitted by the State of Arizona for the Phoenix

CO nonattainment area. These measures are enhancements to the State's

remote sensing program for vehicle emissions and a traffic diversion

measure. Both measures are described in detail in the proposal. See 61

FR 15745 at 15746-15747 and 15749-15750. In the proposal, EPA also

described in detail the SIP approval standards applicable to the

State's contingency measure submittals. EPA proposed to conclude that

the State's two contingency measures, when considered in conjunction

with emission reductions expected to be achieved in 1996 and 1997

through the continued implementation of the State's federally approved

Vehicle Emission Inspection program (enhanced I/M program), met the

requirements of section 172(c)(9) and other applicable provisions of

the CAA. The Agency's preliminary analysis reaching that conclusion is

set forth at 61 FR 15747-15750.

Based on its approval of the State's contingency measures, EPA also

proposed to withdraw the federal contingency process for the Maricopa

area from the State's applicable implementation plan and to withdraw

the list of highway projects subject to delay that was proposed on June

28, 1993 (58 FR 5458).

III. Response to Comments Received on Proposal

EPA received comments on its proposal from three groups: the

Arizona Center for Law in the Public Interest (ACLPI), the Maricopa

Association of Governments (MAG), and the Arizona Department of

Environmental Quality (ADEQ). A summary of the ACLPI and MAG comments

and EPA's responses to those comments follow. The comments submitted by

ADEQ were not substantive and are therefore only addressed in the TSD.

A. Comments by the Arizona Center for Law in the Public Interest, May

7, 1996

Comment: ACLPI states that it is strongly opposed to EPA's proposed

action and some of its reasons for this opposition are contained in its

January 4, 1994 letter commenting on the EPA's December 12, 1993

proposal (58 FR 64530). ACLPI requests that its previous comments of

January 4, 1994 be incorporated by reference into this

[[Page 51601]]

rulemaking along with the docket for the December 12, 1993 proposal.

Response: EPA has incorporated ACLPI's January 4, 1994 comment

letter into the docket for this rulemaking and, to the extent that the

comments are germane to this rulemaking, has responded to them below.

The vast majority of ACLPI's 1994 comments dealt with the specific

merits of EPA's proposed substitution of the Maricopa Association of

Governments (MAG) contingency process and the State's gasoline

volatility control measure for the FIP's contingency process and

highway delays. Because EPA is not acting in this rulemaking on either

the MAG process or the volatility control measure, most of ACLPI's 1994

comments are not relevant to this action. ACLPI did comment at that

time on the application of CAA section 193 to the FIP contingency

process and has made almost identical comments on this action. EPA has

responded to these comments below.

It should be noted that EPA has not finalized the December 12, 1993

proposal and has not done so for reasons unrelated to the comments

received on the proposal. Because it is acting on an entirely different

State submittal from the one it proposed to approve in December 1993,

EPA does not believe that the rulemaking docket for that proposal,

except for ACLPI's comment letter, is relevant to this document.

Therefore, EPA has included in the docket for today's rulemaking only

ACLPI's comment letter from the docket for the 1993 proposal.

Comment: ACLPI comments that EPA's proposed action violates the

CAA's antibacksliding clause. Under section 193 of the CAA, no control

requirement in effect, or required to be adopted by an order in effect

before the date of enactment of the 1990 CAAA in any nonattainment area

may be modified in any manner unless the modification insures

equivalent or greater emission reductions. The contingency provisions

of the existing CO FIP were ordered by the Ninth Circuit prior to

enactment of the 1990 CAAA (Delaney v. EPA, 898 F.2d 687, entered March

1, 1990) and, therefore, according to ACLPI, cannot be modified without

insuring equivalent or greater emission reductions. ACLPI asserts that

the proposal does not assure equivalent or greater emission reductions

and provides several grounds for this assertion.4

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\4\ In extensive comments on this issue, ACLPI argues that the

SIP contingency measures approved today cannot supplant the FIP

contingency process because they do not assure equivalent or greater

emission reductions as required by section 193. Because EPA does not

agree, as discussed below, with ACLPI's basic premise that the FIP

contingency process is a control requirement within the meaning of

section 193, for which equivalent emissions would otherwise be

required prior to substitution, the Agency is not addressing ACLPI's

equivalency arguments in today's notice.

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ACLPI also disagrees with the Agency's statement that section 193

does not apply to the FIP contingency provisions because those

provisions constitute ``procedures'' rather than ``control

requirements.'' ACLPI claims that the FIP provisions are not merely

procedural but are also substantive because they mandate EPA adoption

of specific control measures adequate to produce attainment and delay

of road projects. The FIP contingency provisions have already been

triggered.

Further, ACLPI does not agree that the control requirements

preserved by section 193 are limited to measures that have previously

been identified and defined in detail, or that the term ``control

requirement'' excludes mandated procedures. ACLPI argues that no such

limitation appears in the language of the statute and such limitation

would sharply conflict with the statutory purpose-namely to prevent

backsliding. ACLPI believes that EPA's construction also conflicts with

the Agency's own policies and guidelines and with the Act itself, all

of which require implementation plans to include both procedural and

substantive provisions, and which treat both as enforceable control

requirements.

Response: ACLPI made the same comments regarding the applicability

of section 193 to the FIP in its January 4, 1994 comment letter. The

following discussion is a response to both the 1994 and 1996 comments.

EPA addressed the relevancy of section 193 to its proposed action

in the April 9, 1996 notice (61 FR 15748-49). The Agency concluded that

the FIP contingency process does not constitute a ``control

requirement'' within the meaning of section 193 of the Act (see

footnote 10 for the text of section 193) and provided its reasoning.

EPA elaborates here on its section 193 discussion in the proposal.

The contingency process contained in the Maricopa CO FIP was

required by a March 1, 1990 order of the Ninth Circuit--before the

enactment of the CAAA on November 15, 1990. Having concluded that

Maricopa's pre-amendment CO plan did not contain contingency procedures

that met EPA's 1982 guidance, the Ninth Circuit ordered EPA to

promulgate a FIP that contained contingency procedures in accordance

with that guidance. Delaney, at 695. The Court, however, did not order

EPA to implement that process or to promulgate any specified control

requirements in that plan. Indeed, the inclusion of any specific

control requirements by EPA would have been inconsistent with the terms

and intent of EPA's 1982 guidance on contingency procedures. EPA's 1982

guidance required a two-part contingency plan:

``The first part * * * [is] a list of planned transportation

measures and projects that may adversely affect air quality and that

will be delayed, while the SIP is being revised, if expected

emission reductions or air quality improvements do not occur. The

second part * * * consists of a description of the process that will

be used to determine and implement additional transportation

measures beneficial to air quality that will compensate for the

unanticipated shortfalls in emission reductions. (45 FR 7187)

A list of highway projects that may be delayed and a description of

actions that may occur at some later date are not control requirements.

A list and a description have no air quality impacts and yield no

emission reductions. Nor do they have any potential for either air

quality impacts or emission reductions until and unless they are

triggered by ``unanticipated shortfalls in emission reductions.'' Even

triggered, the particular contingency process in the Maricopa FIP is

not a control requirement within the meaning of section 193.

The FIP contingency process, promulgated in accordance with the

Court's order, consists of an intricate series of actions by EPA

potentially spanning a minimum of 14 to 16 months. The federal process

may involve, among other things, various assessments and findings, air

quality modeling, and the review and the potential adoption of

additional control measures. The eventual length and scope of the

process is dependent upon the outcome of the assessments and findings

called for in the process and is, therefore, not predictable in

advance. See 56 FR 5471-5472.

Likewise, the highway delay provision in the FIP contingency

process involves the development of a new list of highway projects with

potentially adverse air quality impacts and triggering of project

delays only if certain findings are made as part of the overall

contingency process. Since it is not known in advance what projects, if

any, will be listed and whether any projects will be delayed, the scope

of highway delays is also not predictable. Additionally, because the

contingency process only requires the delay of highway project

construction and not elimination of the projects altogether,

[[Page 51602]]

the long-term direct impact on air quality and attainment--good or

bad--is also extremely uncertain.5

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\5\ ACLPI notes (repeating an EPA statement) that the highway

delay provision provides an important coercive benefit in inducing

the State to adopt control measures. However, if the primary impact

of the highway delay provision is to leverage State controls, then

the provision is best characterized, in this context, as a sanction

and not as a control requirement.

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While the term ``control requirement'' is not defined in the Act,

it is generally viewed as a discrete regulation directed at a specific

source of pollution; e.g., an emission limitation on a smoke stack at a

power plant. By contrast, a contingency process, as outlined by EPA's

1982 guidance, is much broader and more far-reaching than a simple,

quantifiable control limitation.6

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\6\ It is instructive to contrast the FIP contingency process,

and EPA's 1982 guidance on which it is based, with the new

contingency measure requirements in the 1990 CAAA. For example,

section 172(c)(9) requires all nonattainment area plans to provide

for the implementation of specific measures to be undertaken if the

area fails to attain the NAAQS by the applicable attainment date.

See also sections 187(a)(3) and 182(c)(9). The remainder of this

discussion refers primarily to section 172(c)(9) because, as stated

before, it is the only contingency measure requirement that applies

to Maricopa.

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It should also be noted that the use of the term ``control

requirement'' in the Act is unique to section 193. Its closest parallel

is the use of the term ``control measures'' in various provisions of

the statute. The term ``control measures'' in these provisions clearly

means direct, effective, enforceable controls on sources of air

pollution (such as reasonably available control technologies or

transportation control measures) and not procedures for the adoption of

such controls.7

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\7\ Wherever the statute mandates ``control measures'' it is

clear that it is speaking in terms of discrete means or techniques

of controlling emissions from particular sources. For instance,

section 110(a)(2)(A) requires state implementation plans to include

enforceable emission limitations ``and other control measures,

means, or techniques * * *'' as are necessary to attain the national

standards. All state plans for nonattainment areas must also provide

``for the implementation of all reasonably available control

measures * * * (including such reductions in emissions from existing

sources in the area as may be obtained through the adoption, at a

minimum, of reasonably available control technology).'' Section

172(c)(1). See also section 172(c)(6).

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EPA also disagrees with ACLPI that the failure to include the FIP

procedures or process within the meaning of section 193's ``control

requirement'' conflicts with the statutory purpose of preventing

backsliding by assuring that modifications will not occur without the

substitution of equivalent or greater emission reductions. This

argument would have some merit if section 193 were the sole savings

clause in the Act. The Act, however, has other savings clauses,

including section 110(n) which specifically applies to all plan

elements, procedural or otherwise. Moreover, a procedure per se does

not yield emission reductions. For example, the FIP contingency process

is just as likely to conclude with no additional emission

reductions.8 Similarly, as discussed above, highway delays may

result in no emission reductions.

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\8\ See, for example, the end of section (a) under Determination

of the Need for Additional Measures (56 FR 5471):

Should the Agency find that no additional measures are needed,

the [Notice of Final Rulemaking] shall contain this finding and

conclude the contingency process.

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EPA agrees with ACLPI that the Agency's own policies and guidelines

require implementation plans to include both procedural and substantive

provisions and that the Agency considers both as enforceable elements

of SIPs. The fact that a particular provision is enforceable, however,

does not automatically make it a control requirement. Under section

113(a), EPA can enforce ``any requirement or prohibition of an

applicable implementation plan.'' There is no requirement that such

provisions be considered to be ``control requirements'' in order to be

enforceable.9

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\9\ See also section 118(a) of the CAA which requires compliance

with all requirements whether substantive or procedural.

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In summary, under a straightforward reading, the savings clause is

best viewed as an anti-backsliding provision by which Congress intended

to prevent the relaxation of actual, existing control requirements on

specific pollution sources or controls required to be adopted for

specific pollution sources while states are proceeding with their new

planning obligations under the 1990 Amendments.

There is simply no evidence that Congress intended ``control

requirement'' to encompass a process as complex and broad as the FIP

contingency procedures. Indeed it is fundamental that the words of a

statute are to be given their ordinary, plain meaning unless it is

clear that some other meaning is intended. See Columbia Pictures

Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278,

280 n. 4 (9th Cir. 1989); Arizona Elec. Power Coop., Inc. v. United

States, 816 F.2d 1366, 1375 (9th Cir. 1987), cert. denied, 488 U.S. 818

(1988). EPA's interpretation of the savings clause is in full accord

with the plain language of section 193. Under the standard articulated

in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), where Congress has

spoken directly on an issue, that is the end of the matter.

Beyond the plain language, however, EPA's interpretation of section

193 is consistent with the structure of the 1990 Amendments as they

relate to the new planning requirements for nonattainment areas and the

failure of those areas to attain the NAAQS. Under the pre-1990 Act,

nonattainment areas were not classified according to the severity of

their air quality problems. An area found to have failed to attain by

the applicable attainment deadline was subject only to a SIP call under

pre-amended section 110. The pre-amended Act contained no provisions

for contingency procedures or measures. Therefore, EPA added

administratively in the 1982 guidance a SIP process that included,

among other things, a delay of highway projects that could adversely

affect air quality while the SIP was being revised in response to a SIP

call.

In contrast, under the 1990 CAAA, a finding of failure to attain by

the applicable attainment date for any area triggers the implementation

of discrete contingency measures under new section 172(c)(9) and also

results in the area being reclassified. The reclassification in turn

results in a new attainment deadline and more stringent planning

requirements to be submitted on a date certain. See e.g., sections

186(b)(2), 186(c) and 187(f). The eternal retention of the FIP

contingency process (or its equivalent) in the applicable plan would

forever overlay its outdated and inconsistent planning scenario on to

the new statutory scheme.

The FIP contingency process was never grounded in a statutory

requirement but was rather based on guidance designed to fill a

perceived gap in the absence of a statutory requirement. In 1990,

Congress remedied that omission by adding both section 172(c)(9) to

fill that gap and a new scheme for additional planning for areas

failing to attain the NAAQS. As discussed above and further below,

EPA's pre-amendment contingency guidance is inconsistent with this new

statutory scheme and thus became ineffective under section 193 upon

enactment of the CAAA.10 EPA affirmed

[[Page 51603]]

this position in the General Preamble. See General Preamble at 57 FR

13498, 13511 and 13532. It is axiomatic that two parts of a single

statutory section cannot be read to have opposite effects. Since the

first sentence of section 193 renders ineffective the 1982 guidance for

contingency processes, the second sentence cannot be read to retain a

requirement that is intimately based on that 1982 guidance.

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\10\ Section 193 states:

Each regulation, standard, rule, notice, order and guidance

promulgated or issued by the Administrator as in effect before

November 15, 1990 shall remain in effect according to its terms,

except to the extent otherwise provided under this chapter,

inconsistent with any provision of this chapter, or revised by the

Administrator. No control requirement in effect, or required to be

adopted by an order, settlement agreement, or plan in effect before

the date of enactment of the Clean Air Act Amendments of 1990 in any

area which is a nonattainment area for any air pollutant may be

modified after such enactment in any manner unless the modification

insures equivalent or greater emission reductions of such air

pollutant. (Emphasis added).

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Both the plain language of section 193 and the new statutory scheme

support EPA's interpretation that the FIP contingency process is not

saved. If, however, there is any ambiguity in the savings clause, EPA's

interpretation of section 193 is reasonable, consistent with the

language and revised structure of the Act, and serves to advance the

goals of the statute. Therefore, it is a permissible construction

entitled to considerable deference. Chevron, 467 U.S. at 844.

Comment: ACLPI disagrees with EPA's suggestion that the contingency

mandate in section 172(c)(9) supplants the FIP contingency provisions

and EPA's pre-amendment contingency guidance. ACLPI asserts that there

is nothing in the Act or its legislative history to suggest such a

result and such a result would be contrary to sections 110(n), 193, and

other provisions of the Act. Therefore, according to ACLPI, the section

172(c)(9) mandate is in addition to, and not in lieu of pre-existing

control requirements. ACLPI concludes that in enacting the 1990

Amendments, Congress made clear that it intended to strengthen the Act,

and preserve preexisting control requirements to ensure maximum

progress toward clean air.

Response: As discussed previously, the Agency's 1982 contingency

guidance was an effort by EPA to fill a gap in the statute as it

existed prior to the 1990 CAAA. The pre-amended Act contained no

requirement for contingency provisions in non-attainment area plans. In

amending the Act in 1990 to explicitly include a requirement for

specific contingency measures in section 172(c)(9), Congress clearly

anticipated that EPA would update its nonattainment area guidance to

reflect the new statutory scheme.11 There is nothing in the

language or structure of the 1990 Amendments or their legislative

history to suggest that Congress intended to reaffirm EPA's 1982

guidance regarding appropriate contingency procedures. On the contrary,

by providing explicit contingency measure requirements that differed

from that guidance, if anything, it can be concluded that Congress

intended to overrule the 1982 guidance in the 1990 Amendments.

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\11\ Additional contingency provisions for certain moderate CO

nonattainment areas are found in section 187(a)(3). See also

contingency provisions in section 182(c)(9) for certain ozone

nonattainment areas.

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Moreover, the amended Act and EPA's pre-amendment contingency

guidance are in fact both duplicative and inconsistent and thus made

ineffective by section 193 on enactment of the CAAA. See footnote 10.

EPA's 1982 contingency guidance required the State to invoke a new

planning process if the SIP was inadequate for attainment. In the 1990

Amendments, Congress established a different scheme for areas that

failed to attain.12 The new contingency measure provisions serve a

different purpose than EPA's pre-amendment guidance in that they call

for immediate implementation of already adopted control measures.

Consistent with the new scheme for implementation of contingency

measures and reclassification with new planning requirements for areas

that fail to attain, EPA stated that its pre-amendment guidance had

been superseded. See General Preamble at 13498, 13511, and 13532. Such

statements are reasonable in light of the 1990 Amendments and was

within EPA's discretion. See Ober v. EPA, 84 F.3d 304, 311-312 (9th

Cir. 1996).

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\12\ EPA's 1982 policy stated that ``the contingency provision

must be initiated when the EPA Administrator determines that a SIP

is inadequate to attain NAAQS and additional emission reductions are

necessary.'' 46 FR 7187. In the 1990 Amendments, Congress in section

186(b)(2)(A) required EPA to determine within 6 months of an area's

attainment date whether the area has attained the CO standard and,

should EPA find a failure to attain, the area is reclassified by

operation of law to serious, triggering new planning requirements

under section 187(f). Under section 172(c)(9), contingency measures

are also triggered if an area fails to attain.

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Furthermore, neither section 193 nor section 110(n) of the Act bars

revisions to EPA's 1982 contingency guidance as ACLPI suggests. Both

sections provide for revisions to EPA guidance and SIPs upon

affirmative action by the Administrator.13

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\13\ Section 110(n)(1) states that ``[a]ny provision of any

applicable implementation plan that was approved or promulgated by

the Administrator pursuant to this section as in effect before

November 15, 1990, shall remain in effect as part of such

implementation plan, except to the extent that a revision to such

provision is approved or promulgated by the Administrator pursuant

to this chapter.'' (Emphasis added). However, the FIP contingency

provisions were not promulgated as a part of the Arizona applicable

implementation plan until February 11, 1991, and therefore are

clearly not subject to section 110(n)(1). Further, even if this

section applied to the FIP contingency process, it would, by its

terms, present no impediment to EPA's withdrawal of the FIP process.

See footnote 10 for the text of section 193.

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Comment: ACLPI also disagrees with EPA's proposed interpretation of

section 172(c)(9) as requiring only such SIP contingency measures as

necessary to offset one year's growth in vehicle miles traveled (VMT).

ACLPI claims that the focus of section 172(c)(9), other provisions of

172, and section 110 is on timely attainment and achievement of

reasonable further progress (RFP)--not on VMT offsets. Thus ACLPI

states that contingency measures must be adequate to make up the

entirety of any potential emission reduction shortfall. ACLPI further

asserts that EPA's proposed approach would allow states to defer

attainment and RFP. It also allegedly allows states to defer attainment

to the deadline for the new classification, even if additional

contingency measures could produce attainment much sooner.

Response: First, it should be noted that there is nothing in the

plain language of section 172(c)(9) or any other provision of the Act

to support ACLPI's contention that contingency measures must be

adequate to make up the entirety of any potential emission reduction

shortfall. Indeed, such an interpretation makes no sense when

considered in the context of the new statutory scheme. Because section

172(c)(9) does not specify either the number or type of contingency

measures required, EPA's reasonable interpretation of the required

measures should receive deference. Chevron, 467 U.S. at 844.

As discussed before, section 172 and the pollutant-specific

requirements in sections 181 through 189 establish a basic

classification scheme and associated planning cycles. This scheme

started with the original classifications of nonattainment areas

following enactment. An area's initial classification established its

attainment deadline and the initial elements of its plan. Sections 181,

186, and 188 all require EPA to review an area's air quality after the

passage of its attainment date to determine if an area in fact attained

by its deadline. If the Agency finds that an area has not attained,

then the area is reclassified to the next higher classification by

operation of law.

This reclassification triggers new planning requirements that in

all cases lead to the development of new attainment and RFP

demonstrations. The role of the section 172(c)(9) measures in this

scheme is to assure areas do not lose ground during the period that

they are developing these new plans. It is not the role of these

[[Page 51604]]

measures to replace or accelerate the development of the new plans. To

require the section 172(c)(9) contingency measures to be adequate to

make up the entirety of any potential emission reduction shortfall

would in fact result in replacing the reclassification scheme in part D

with just section 172(c)(9).14 Such a result is clearly not what

Congress intended. Thus it is the basic statutory structure, and not

EPA's approach, that allows states to defer attainment to the deadline

for the new classification.15

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\14\ The fact that Congress did not intend section 172(c)(9)

contingency measures to entirely make up any shortfall needed for

attainment of the CO standard is made even clearer by section

187(g). Section 187(g) requires submittal, nine months after EPA

determines that a serious CO nonattainment area failed to attain by

December 31, 2000, of controls sufficient to demonstrate a five

percent per year reduction in CO emission until attainment occurs.

If section 172(c)(9) were intended to require immediate

implementation of measures sufficient to correct any attainment

shortfall, then section 187(g) would not be necessary.

\15\ Note, however, that the attainment deadline for the new

classification is not a fixed date providing a number of additional

years while attainment is reached; rather the deadline is ``as

expeditiously as practicable but not later than'' a fixed date. If

practicable controls can bring an area into attainment prior to the

fixed date, they must be implemented to achieve earlier attainment.

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Regarding ACLPI's disagreement with EPA's use of one year's growth

in VMT as a benchmark for the amount of emission reductions section

172(c)(9) measures should achieve,16 it should be noted that EPA

went beyond the suggested approach in the 1992 TSD. EPA showed in its

proposal that the State's contingency measures coupled with continuing

emission reductions from the State's enhanced inspection and

maintenance program (as well as other measures whose effectiveness was

built into the baseline) provided sufficient emission reductions to

offset on-road mobile source emissions growth during the period of time

that the Phoenix area would be developing its serious area attainment

plan (i.e., from early 1996 until late 1997).

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\16\ See section I.B. of this notice.

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EPA agrees with ACLPI that the primary thrust of sections 110 and

172 of the Act is for timely attainment and achievement of RFP and not

on VMT offsets. It, however, is an indisputable fact that the bulk of

CO emissions in Phoenix (as in the vast majority of CO nonattainment

areas) are from motor vehicles and the main culprit behind increases in

overall CO levels is growth in vehicle usage. It is, therefore,

reasonable to relate needed emission reductions from contingency

measures to the factor that most influences emissions growth, that is

vehicle miles traveled. Thus EPA's guidance on contingency measures in

the General Preamble and the 1992 TSD is reasonable.

On the other hand, as discussed above, EPA does not agree with

ACLPI that the purpose of section 172(c)(9) is to alone assure

attainment of the standard or RFP. To read that purpose into section

172(c)(9) is to ignore the broader reclassification and new planning

requirements scheme in part D of title I of the Act. For the foregoing

reasons, EPA believes that its interpretation of section 172(c)(9) is

reasonable and, as such, is entitled to considerable deference.

Chevron, 467 U.S. at 844.

Comment: ACLPI also comments that the State is not eligible to base

its contingency measures on EPA's VMT emission offset policy. According

to the General Preamble, that policy applies where failure to timely

attain or achieve RFP is due to ``exceedence of a VMT forecast'' and

the State has made no claim or showing that its failure to timely

attain or achieve RFP is due to exceedence of a VMT forecast. ACLPI

cites 57 FR 13532 for this policy.

Response: The section of the General Preamble cited by ACLPI

addresses the contingency requirement in section 187(a)(3) for high

moderate CO nonattainment areas. Section 187(a)(3) requires CO

nonattainment areas with design values of 12.7 ppm or higher (that is,

high moderate areas) to provide for the implementation of specific

measures to be undertaken if any estimate of VMT exceeds forecasts.

Section 187(a)(3) is a companion requirement to section 187(a)(2)(A)

which requires high moderate areas to forecast VMT for each year before

the attainment year and annually update those forecasts. Because

section 187(a)(3) contingency measures are triggered by higher than

expected VMT growth, it is reasonable to link its contingency measure

requirement to annual VMT growth. However, section 187(a)(3) and the

cited section of the General Preamble concern contingency requirements

applicable only to high moderate nonattainment areas whereas Phoenix is

a low moderate area. As stated previously, neither the statute nor the

General Preamble addresses how many contingency measures or emission

reductions from them are necessary in low moderate CO areas. EPA's

interpretation of the statute, which has been shown above to be

reasonable, for these areas is only in the 1992 TSD.

Comment: ACLPI comments that just offsetting one year's growth in

VMT does not even assure EPA's stated goal--namely, to prevent air

quality from worsening while the SIP is being revised. ACLPI points out

that on-road mobile sources in Phoenix contribute only about 70 percent

of the total emission inventory; therefore, there is no assurance

whatsoever that RFP will be maintained merely because VMT-related

emission increases are offset.17

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\17\ Although acknowledging that EPA's action is limited to CO,

ACLPI also comments on the Agency's section 172(c)(9) policy as it

relates to ozone. Because today's action concerns only CO

contingency measures, these comments are not germane and need not be

addressed here.

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Response: The 70 percent figure for on-road mobile sources is the

contribution of this source category to the 1990 base year annual daily

CO season emissions inventory (found on page 3.3 of the MAG 1993 CO

Plan for the Maricopa County Area, November 1993). EPA believes that

the purpose of section 172(c)(9) for contingency measures is to prevent

air quality from worsening while the SIP is being revised. EPA's

calculations indicate that during this period total CO emissions will

not increase and the State's contingency measures therefore are

sufficient to accomplish that purpose. See the TSD for this rulemaking.

As discussed below, EPA does not believe that section 172(c)(9)

measures are required to assure RFP.

Comment: ACLPI requests the entirety of the MAG 1993 Carbon

Monoxide Plan for the Maricopa County Area (November 1993) as well as

the March 1994 Addendum to that Plan be incorporated by reference into

the record for this rulemaking.

Response: EPA has not relied on substantial portions of the MAG

1993 CO Plan for its action in this rulemaking and declines to

incorporate the entire plan into its rulemaking docket.18 The

March 1994 Addendum and relevant excerpts from the MAG 1993 CO Plan are

already included in the docket for the proposal. EPA is also

incorporating by reference the rulemaking docket for its proposed

approval of the Phoenix area's CO inventory. This docket includes

additional portions of the MAG 1993 CO Plan. EPA has included all

applicable portions of the plan in the docket for today's rulemaking.

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\18\ Section 307(d)(3) requires the docket accompanying a

proposed Agency action to include all data, information, and

documents on which the proposed rule relies. Section 307(d)(4)(B)(i)

requires the final docket to include all comments received on the

proposed rulemaking, the transcript of any public hearings, as well

as any documents which become available after the proposed has been

published and which EPA determines are of central relevance to the

rulemaking.

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Comment: ACLPI comments that even if an offset of emissions from

one year's VMT growth were sufficient to assure RFP in that year, it

would not assure continued RFP during the entire period

[[Page 51605]]

that the SIP is being revised. EPA is apparently planning to give the

State 18 months to revise the SIP and the normal approval process will

protract this SIP revision period even further.

Response: ACLPI misinterprets the RFP requirements of the CAA.

Sections 172(c)(2) and 171(1) require ``such annual incremental

reductions in emissions * * * for the purpose of ensuring attainment of

the applicable national ambient air quality standard by the applicable

attainment date'' (Emphasis added). Thus the moderate area plan for

Phoenix was required to assure RFP through 1995, the moderate area

attainment deadline under section 186(a)(1).19 However, since the

area has now been reclassified, additional RFP requirements apply to

the serious area plan. In the interim, the section 172(c)(9)

contingency measures will ensure that air quality does not deteriorate

while the plan is being revised. There is nothing in the language of

that section to suggest that the contingency measures are expected to

assure RFP during this period.

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\19\ On August 9, 1993, EPA issued a SIP call under section

110(k)(5) of the CAA that required Arizona to submit a plan to EPA

that demonstrated attainment of the CO NAAQS by December 31, 1995.

As an area with a design value under 12.7 ppm, the State would not

otherwise have been required to submit an attainment plan, including

an RFP demonstration, for the Phoenix area. See section 187(a).

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EPA does not believe that EPA's approval process can be reasonably

interpreted to ``protract the SIP revision process'' as ACLPI suggests.

Revision of the SIP clearly relates to the State's actions to develop

and submit rather than EPA's actions to approve or disapprove.

Moreover, the vast majority of State control measures do not depend

upon EPA's approval of them into the SIP to be implemented and

effective.20 Therefore, it is appropriate to consider the

contingency period to run only until the date the State is required to

submit its serious area plan with its accompanying control measures. As

discussed above, EPA has concluded that there will be sufficient

emission reductions during 1996 and 1997 to offset all emissions growth

while the plan is being revised.

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\20\ Even the contingency measures that are the subject of this

rulemaking did not require EPA's formal approval into the SIP in

order to be triggered. EPA triggered their implementation when its

finding that the Phoenix area failed to attain the CO standard

became effective on August 28, 1996.

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Comment: ACLPI comments that the Arizona's contingency measures

also fail the Act's contingency requirements because there are no

contingency measures for the contingency measures and if the first

contingency measures do not achieve the emission reductions expected of

them then there is no assurance that an offset of emissions from VMT

growth will be achieved, even in the first year.

Response: It would be an absurd reading of the Act to conclude that

contingency measures need their own contingency measures. The only

reading of the Act for which such an interpretation would make any

sense is the one that EPA has already rejected for the reasons

explained above: that section 172(c)(9) requires sufficient measures to

immediately make up any potential shortfall in attainment or RFP. As

discussed earlier, the purpose of the section 172(c)(9) contingency

measures is to assure that air quality does not worsen during the

period a new plan is being developed. This new plan will necessarily

evaluate the existing situation, including any failure of contingency

measures to achieve emission reductions, and factor the effectiveness

of existing controls into determining the additional controls necessary

for attainment.

Comment: ACLPI comments that in proposing to find that the State's

contingency measures will offset emissions from one year's VMT growth,

EPA relies primarily on emission reductions from the State's enhanced

I/M program. ACLPI asserts that this reliance is misplaced for several

reasons. First, the enhanced I/M program is not a contingency measure,

rather it is one of the primary strategies included in the SIP and the

State has already claimed emission reductions from this strategy in the

SIP attainment and maintenance demonstration. ACLPI claims that EPA

cannot now convert the program to a contingency measure to create an

offset of VMT emission increases.

Response: EPA did not claim that the Arizona's enhanced I/M program

is a section 172(c)(9) contingency measure, just that it contributes to

reducing emissions during the contingency (SIP revision) period. In

establishing a benchmark of one year's growth in VMT for these

measures, EPA intended that the status quo, as represented by the

emissions level in the attainment deadline year, be maintained during

this period. EPA believes that this result can be achieved by

considering reductions from the section 172(c)(9) measures in

combination with new reductions scheduled to occur in the area during

the SIP revision period, as long as these offsetting reductions are

from measures approved into the SIP and are in excess of reductions

occurring in the attainment deadline year. As discussed above, the

emission reductions from the enhanced remote sensing program, the

traffic diversion measure, and the additional reductions from the I/M

program in 1996 and 1997 more than meet this test.

While the State explicitly identified in the proposal emission

reductions from its enhanced I/M program in determining that the

contingency measures are adequate to maintain the area at or below 1995

levels during the contingency period, it need not have done so. In

order to make this determination, the State calculated the baseline

emissions level, i.e., the emissions level expected in the year after

the attainment deadline prior to the implementation of the contingency

measures. Rather than incorporating emission reductions from the

enhanced I/M program into the baseline, the State chose to explicitly

account for reductions from the program.21 If the State had

incorporated the emission reductions from the enhanced I/M program into

the baseline emissions level, the determination that the contingency

measures are adequate would have been the same. The difference between

explicitly accounting for reductions from the program or implicitly

including them in the emission baseline is simply the method of

bookkeeping.

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\21\ In fact, there are emission reductions anticipated to occur

after the attainment deadline year from numerous measures whose

effects are assumed in the baseline emissions. These measures

include federal tailpipe standards, oxygenated gasoline, basic I/M,

RVP limitations, and transportation control measures.

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Comment: ACLPI comments that neither the state nor EPA has provided

viable technical justifications for the emission reductions claimed

from the enhanced I/M and enhanced remote sensing programs. There is no

explanation of how the State arrived at the estimated effectiveness

percentages for these programs. ACLPI asserts that under EPA guidelines

and rules, as well as general principles of administrative law, EPA

cannot credit these measures with emission reductions without a sound,

thoroughly justified technical basis for the level of reductions being

claimed. The State now has considerable experience with both remote

sensing and enhanced I/M in 1995 and should be required to provide

evidence of their actual performance as proof of their emission

reduction potential.

Response: EPA does not believe the State must submit evidence of

the actual performance of the enhanced I/M and remote sensing programs

to support their estimated emission reduction potential. For both the

enhanced I/M

[[Page 51606]]

and enhanced remote sensing programs, the State used EPA's MOBILE5A

model to calculate emission reductions. The MOBILE5A inputs used to

generate the reduction estimates for enhanced I/M and the methodology

and assumptions used to estimate the effectiveness of the enhanced

remote sensing program are also provided in the 1994 Addendum at pp. 3-

191 and 3-201, respectively. EPA requires the use of its latest mobile

sources emissions model (in this case,the MOBILE5A)to determine credits

for I/M programs. See 40 CFR 51.351(a) and 51.352(a).22 The MOBILE

models have been the standard methodology for this purpose for more

than a decade and EPA does not believe that it should or can require

States to independently validate the accuracy of the model.

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\22\ Remote sensing programs are components and are means of

increasing the effectiveness of I/M programs; therefore, emission

reduction estimates for these programs are also calculated using

MOBILE5a consistent with EPA guidance.

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Comment: ACLPI comments that a related and equally serious flaw is

the State's reliance on the air quality modeling in the 1994 Addendum

that has not been reviewed and approved by EPA as part of the SIP

review process. Stating that EPA has neither proposed to approve that

modeling nor has it evaluated that modeling in the context of this

rulemaking, ACLPI maintains that if EPA is going to rely on the State's

CO modeling, it must first specifically propose approval of that

modeling and allow public comment on it.

ACLPI also comments that the emission reductions from the control

measures are not adequate. ACLPI states that the State contends that

emission reductions from the contingency measures and enhanced I/M will

be sufficient to offset increased emissions from VMT growth and bases

this claim on its projections of on-road mobile source emissions and

its estimates of emission reductions from contingency and enhanced I/M

measures. ACLPI claims that aside from the lack of substantiation for

the latter, the projections of mobile source emissions are not

supported by EPA-approved emissions inventories and VMT projections.

The State is relying on the emission inventory and VMT projections in

the MAG 1993 CO Plan for Phoenix, but EPA has not yet even proposed

approval of those components of the Plan. ACLPI further states that the

Agency cannot simply assume that the State's inventory and VMT

projections are accurate, particularly when the State's attainment

projections (based on this inventory) have proven to be incorrect nor

can EPA simply approve these items at this stage of the rulemaking.

ACLPI concludes that because a current, accurate emissions inventory is

a mandated component of the SIP, EPA must first propose approval or

disapproval of the inventory and provide an opportunity for public

comment.

Response: EPA has relied on the base year and 1995 projected year

emission inventories in the 1993 CO plan and 1994 Addendum in this

rulemaking and has recently proposed to approve the base year inventory

as meeting the requirements of sections 172(c)(3) and 187(a)(1) and

EPA's guidelines. Because it is closely related to the base year

inventory, EPA has also fully evaluated the 1995 projected year

inventory against applicable guidelines as part of its rulemaking on

the base year inventory and has found that that inventory conforms to

these guidelines. EPA's evaluation of the projected inventory can be

found in the draft TSD available for public comment in the docket for

the proposed emission inventory approval. Should EPA ultimately

disapprove the base year inventory in response to public comments on

its proposed approval or re-evaluate its finding on the projected

inventory, the Agency will consider the effect, if any, of such an

action on this rulemaking and revise it if appropriate.

EPA, however, has not relied on the air quality modeling in either

the 1993 CO plan or the 1994 Addendum for this rulemaking. Since the

adequacy of contingency measures is based on their effect on emission

levels and not on ambient air quality levels, air quality modeling does

not factor into the adequacy determination. While contingency measures

are triggered by a failure to attain the NAAQS, that determination is

based solely on monitored air quality and not on modeled air quality.

Comment: ACLPI noted that the Arizona legislature had recently

repealed the funding for the State's I/M program. It also stated that

the State had not identified the financial and manpower resources

necessary to implement enhanced remote sensing, nor provide legal

commitments to adequately fund and staff that measure. Under EPA

guidelines and rules, as well as section 110 of the Act, EPA cannot

approve, or credit the State with emission reductions for the measures

without funding or commitments.

Response: On July 18, 1996 the Governor of Arizona signed Arizona

Senate Bill 1002 (42nd Legislature, 1st Special Session). Section 51 of

the bill provided $4.3 million to fund the State's Vehicle Emissions

Inspection Program (including its enhanced remote sensing component)

23 through June 30, 1997. See section 51 of the bill. The bill

also includes a statement of intent that the program become self-

funding from July 1, 1997 on.24 See section 52 of the bill. While

there is no longer an explicit funding source identified for the

program beyond the middle of 1997, EPA believes there are adequate

grounds, based on past practice and the contribution of test fees to

the administration of the program, to believe the program will continue

operating at its current level without interruption. Arizona's I/M

program has been in operation since 1976, is a key element of both the

State's ozone and CO control strategies, and is a model for the rest of

the Country.

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\23\ There is a tendency to refer to the components of Arizona's

Vehicle Emission Inspection Program (VEIP) as if they are separate

and distinct programs. This is done primarily to identify the

additional emission reduction benefits that each new component adds

to the overall VEIP. Arizona VEIP is operated and funded as a single

program with multiple components including enhanced I/M, basic I/M,

diesel I/M, and remote sensing. See EPA's approval of Arizona's

VEIP, 60 FR 22520 (May 8, 1995).

\24\ It should be noted that the program is already partially

funded by fees charged for vehicle emission inspections. The

legislative appropriation covers the shortfall between the fees and

the cost to run the program.

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EPA approved Arizona's basic and enhanced I/M program on May 8,

1995 (60 FR 22518). As part of that approval, EPA evaluated the program

against the requirements in 40 CFR 51.354 which requires that the State

demonstrate that appropriate administrative, budgetary, personnel, and

equipment resources have been allocated to the program.25 At that

time, EPA concluded that the funding mechanism met EPA's requirements

for I/M programs. Despite the recent turbulence in the funding for the

program, EPA believes its evaluation is still correct. Should EPA in

the future find that funding is not forthcoming for the program, EPA

would issue a SIP call based on failure to implement the program under

section 110(k)(5).

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\25\ The requirements in 40 CFR 51.354 define for I/M programs

what states must submit to meet the section 110(a)(2)(E)(i)

requirement that SIPs provide necessary assurances that adequate

personnel, funding, and authority under state law are available to

implement the program.

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Finally EPA notes that under section 307(b)(1) of the CAA,

petitions for review of the Agency's 1995 final action approving the

basic and enhanced I/M program would need to have been properly filed

within 60 days of such action. Comments relating to EPA's approval were

required to have been raised during the comment period for that

rulemaking. Therefore, ACLPI's comments regarding financial and

[[Page 51607]]

manpower resources of the I/M program are not timely.

Comment: ACLPI comments that yet another flaw is the State's use of

513 tpd as the 1995 baseline figure for on-road mobile source

emissions. MAG's 1994 Addendum projected attainment in 1995 with a

mobile source CO emission budget of 513 tpd. ACLPI notes that there

were CO violations in 1995, so the 1995 design day emissions must have

been higher than 513 tpd. Yet MAG has used this 513 tpd figure as the

baseline for projecting actual emissions in 1995, 1996, and 1997. ACLPI

concludes that because actual emissions were almost certainly higher

than these projections, MAG's projections are flawed as well.

Response: The 513 tpd figure, like all emission inventory figures,

is an estimate subject to an unavoidable degree of uncertainty. It was

arrived at through a series of modeling steps including transportation

and motor vehicle emissions modeling. See, in general, Chapter 5 of

``1990 Base Year Carbon Monoxide Emission Inventory for the Maricopa

County, Arizona Nonattainment Area,'' (located in Appendix B, Exhibit 1

of the 1993 CO Plan). Each one of these models attempts to reproduce

highly complex processes with comparatively limited data sets and thus

introduces some natural range of error into the results.26 Given

that no absolute ton per day figure is likely to be entirely accurate,

the real question is whether the use of the 513 tpd figure is

acceptable for the purpose at hand.

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\26\ For example, EPA has discussed the potential sources of

errors in the MOBILE model and work underway to correct those errors

in Highway Vehicle Emission Estimates--II, U.S. EPA, May 1995.

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As stated before, EPA's primary test for determining the adequacy

of contingency measures is to assure emissions do not increase during

the period the SIP is being revised. This is a comparative process: is

the emission level at the end of the SIP revision period, considering

the effect of the contingency measures, less than or equal to the

emission level at the beginning of that period? Comparisons tend to

mitigate errors between numbers that are derived in similar manners

because the errors tend to cancel themselves out. Therefore, even

though 513 tpd may not be the absolute attainment emission level for

on-road motor vehicles in Maricopa, EPA believes it is acceptable for

determining the adequacy of the contingency measures since it is used

as the baseline for calculating both emissions with the contingency

measures and emissions without such measures.

Comment: ACLPI also questions the State's projections regarding the

rate of emissions growth from on-road mobile sources. The State

predicts that VMT will increase at a rate of about 3.9 percent in 1995-

96, and about 3.7 percent between 1996-97. Yet the State also predicts

that, even without additional controls, on-road mobile sources will

only increase at a rate of about 1.8 percent per year in 1995-96 and at

a rate of 1.5 percent in 1996-97. ACLPI concludes that these figures

indicate that the State is substantially understating the emissions

growth likely from on-road mobile sources and therefore understating

the emission reductions needed to offset that growth.

Response: Actually, the State is not predicting that ``without

additional controls,'' on-road mobile sources will increase at a rate

less than VMT growth. Implicit in the State's baseline inventory is the

effect of ``additional controls,'' including the impact of the federal

tailpipe standards (which reduces the composite vehicle fleet emission

rate as newer cars replace older cars) and continuing reductions from

the State's non-enhanced I/M program, oxygenated gasoline, RVP limits,

and other required controls. All of these control programs serve to

dampen the growth in CO emissions compared to growth in VMT. Therefore,

the figures cited by ACLPI do not indicate that the State is

substantially underestimating the emissions growth from on-road mobile

sources. Historically, CO emission levels in Phoenix have not increased

at the rate of VMT growth and, for many years, actually decreased as

VMT has grown. Despite the fact that the Phoenix area has not yet

attained the CO standard, it has experienced substantial reductions in

ambient CO levels even in the face of its rapid population and VMT

growth.27

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\27\ See, for example, pages 2 and 3 in ``Conformity Analysis

Appendices, Volume 2'' for the MAG Long Range Transportation Plan,

Summary and 1996 Update and the 1997-2001 MAG Transportation

Improvement Program (MAG, July 1996) which juxtapose daily VMT

figures for each year from 1979 to 1993 and the 8-hour CO

concentrations and number of annual exceedences at the Indian School

monitor from 1981 to 1993. The VMT figures double between 1981 and

1993 while CO concentrations drop by half and the number of

exceedences decreases from more than 60 to less than 5 between the

same years.

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Comment: ACLPI states that EPA's proposal to approve the State's CO

SIP contingency measures without acting on the overall CO SIP itself is

contrary to the Act. The SIP contains an attainment demonstration and

other provisions proposed by the State to meet all of the SIP

requirements for moderate CO areas and to address EPA's 1993 CO SIP

call. ACLPI asserts that under applicable court precedent (Abramowitz

v. EPA, 832 F.2d 1071 (9th Cir. 1987)), EPA cannot select out a few

provisions of the plan for approval (i.e., the contingency measures)

while deferring action on the attainment demonstration and all other

provisions.

Response: The Ninth Circuit in Abramowitz reviewed the Agency's

action to approve certain control measures in the California carbon

monoxide and ozone SIPs and to withhold action on the attainment

demonstrations in those plans. The Court concluded that EPA could not

approve the control measures without requiring any demonstration that

those measures would achieve attainment by the statutory deadline. The

control measures at issue were adopted by the State as an integral part

of the attainment and RFP demonstrations and were intended to be

implemented before the passage of the applicable attainment date. Those

control measures were not contingency measures whose implementation was

to be triggered by the failure of an area to actually make RFP or

attain, as is the case for the measures under consideration in this

rulemaking.

In addition, the Abramowitz case was decided prior to the 1990

Amendments to the Act. As noted before, the pre-amended Act had no

contingency provisions. Congress added specific contingency provisions

in 1990, including the section 172(c)(9) requirement of interest here.

This section refers to ``implementation of specific measures to be

undertaken if the area fails to make reasonable further progress, or to

attain the [NAAQS] by the attainment date applicable under this part.''

(Emphasis added)

These specific contingency measures are clearly outside the set of

control measures that make up a State's attainment and RFP

demonstrations required under sections 172(c) (1) and (2).28 They

are not triggered until or unless an area fails to make RFP or attain

by the applicable attainment date. For the foregoing reasons, EPA does

not

[[Page 51608]]

believe the Court's finding in Abramowitz applies to this rulemaking.

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\28\ The fact that contingency measures are a distinct and

separate requirement from and unrelated to prospective attainment

and RFP demonstrations is clearly demonstrated by the Act's planning

requirements for low moderate CO nonattainment areas. While these

areas are required to submit section 172(c)(9) contingency measures,

they are specifically exempt from the requirement to submit an

attainment (and by extension, an RFP) demonstration by section

187(a). Note that even where contingency measures and attainment

demonstrations are required, section 172(b) authorizes EPA to set

separate SIP submittal deadlines for them which shows these can (and

sometimes must) be acted on separately.

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It should also be noted that EPA routinely receives SIP submittals

that include rules, regulations, and other elements responding to

various SIP requirements such as I/M programs, new source review

programs, and reasonably available control technology rules. EPA has

traditionally acted on these elements independently.

Comment: ACLPI claims that approving contingency measures while

deferring action on the attainment and other provisions of the 1993 CO

SIP as amended stands the process on its head. ACLPI asserts that if

the CO SIP is inadequate to produce timely attainment, or fails to meet

other requirements of the Act, then EPA is obligated to disapprove the

plan and require additional control measures as part of the plan. ACLPI

concludes that EPA cannot evade this responsibility via the alleged

artifice of treating essential measures as ``contingency'' measures and

avoiding action on the attainment demonstration in the SIP itself.

Response: As discussed above, EPA believes that the section

172(c)(9) contingency measure requirement is separate and distinct from

the attainment demonstration requirement and, thus, may be acted on

independently. EPA agrees that if it finds that a SIP is inadequate to

achieve timely attainment, then EPA is obligated to disapprove the plan

and require additional control measures as necessary for timely

attainment. However, in developing its new attainment demonstration, a

state would not be compelled to choose its section 172(c)(9)

contingency measures to contribute to that demonstration. While the

Clean Air Act explicitly requires certain controls in SIP attainment

demonstrations (e.g., oxygenated gasoline, I/M programs, RACT), it also

allows states broad discretion to identify the exact controls that make

up the remaining portion of such demonstrations.29

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\29\ See, for example, section 172(c)(6) which states: Such

plan provisions shall include enforceable emission limitations, and

such other control measures, means or techniques * * * as may be

necessary or appropriate to provide for attainment of the [NAAQS] by

the applicable attainment date * * *. (Emphasis added).

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Under the circumstances posited by ACLPI, EPA could approve a

state's contingency measures as meeting the requirements of section

172(c)(9) while at the same time disapproving the plan's attainment

demonstration, assuming such an action were warranted. See section

110(k)(3). The state would then be required to develop and submit a new

attainment demonstration. In so doing, the state could choose to

include its pre-existing contingency measures as part of the attainment

demonstration, in which case it would also be required to submit new

contingency measures. On the other hand, the state would be free to

choose entirely different measures as long as they resulted in

expeditious attainment. In that event, the approved contingency

measures would remain as such.

Therefore, acting on a state's chosen contingency measures prior to

acting on the attainment demonstration does not ``stand the process on

its head;'' it merely acknowledges the state's right under the Act to

select what measures will and will not make up its control strategy and

what measures will and will not make up its section 172(c)(9)

contingency measures.

Comment: ACLPI states that the proposal violates section 110(l) of

the Act because under that section, EPA cannot approve a revision to a

plan if the revision would interfere with any applicable requirement

concerning attainment and RFP. Contrary to EPA's assertion, ACLPI

claims that the Agency's proposed action would most definitely

interfere with applicable requirements for attainment and RFP--namely,

those set forth in the FIP and, because the FIP contingency provisions

explicitly require adoption of federal measures to provide for

attainment of the CO NAAQS, these provisions are most assuredly

``applicable requirements.'' ACLPI additionally asserts that EPA's

action would interfere with those requirements by repealing them and

that EPA's action further interferes with the Act's requirement that

the state produce, and EPA approve or disapprove, a CO SIP that

provides for attainment and RFP. ACLPI also comments that EPA's

assertion that its approval of the State's contingency measures will

not interfere with RFP because the measures are only triggered if there

is a failure to make RFP is truly disingenuous. ACLPI objects to EPA's

proposing to replace a FIP which mandates RFP and timely attainment

with a plan that requires neither, and that will allegedly allow air

quality to worsen.30

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\30\ Contrary to ACLPI's comments, the FIP contingency process

does not mandate RFP. See the FIP contingency process at 56 FR 5472.

Therefore the discussion below does not address this aspect of

ACLPI's comments.

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Response: EPA refers the reader to the discussion of the

application of section 110(l) to today's action in its proposal. See 61

FR 15647. That analysis shows why the proposed action meets the

requirements of section 110(l). That discussion is expanded here.

Section 110(l), added to the CAA in the 1990 Amendments, states

that the ``Administrator shall not approve a revision of a plan if the

revision would interfere with any applicable requirement concerning

attainment and reasonable further progress * * * or any other

applicable requirement of this Act.'' As addressed below, EPA believes

that the purpose of this provision is to assure that in changing one

substantive aspect of its SIP, a state does not simultaneously impair

its compliance with another aspect of the SIP or with the statutory

mandates applicable to the aspect under revision.

In making its arguments regarding section 110(l), ACLPI attempts to

re-write the section to serve its own purposes. It is clear, however,

from the plain language of section 110(l) that that provision is

referring to noninterference with the requirements of the statute, and

not to the requirements of a FIP as ACLPI contends. The term

``applicable implementation plan,'' which includes FIPs as well as

SIPs, is specifically defined in the Act and used throughout title I.

See section 302(q); see also, e.g., section 110(c) and (n). Therefore,

had Congress intended section 110(l) to have the meaning ACLPI

suggests, it could easily have included at the end of the section the

clause ``or requirements of any applicable implementation plan.''

It is consistent with the Act as a whole for Congress to have

limited section 110(l) to statutory rather than SIP requirements.

States are at liberty to include such provisions as they see fit in

their attainment demonstrations, provided attainment is demonstrated.

They are also free to change those measures at any time, subject to

certain savings clauses, provided expeditious attainment is still

demonstrated. Congress did not in section 110(l) intend to override

this general scheme by forbidding revisions (including revocations and

replacements) of any SIP measure because it would by definition

interfere with the pre-existing requirement of that very SIP measure.

This analysis applies even more so to FIPs. In a FIP, EPA promulgates

measures for a state which may be very different from the measures that

the state would choose to implement in its own SIP. In keeping with the

overriding statutory goal of federalism in the Act, when a state does

adopt measures to replace FIP measures it should be able to select

those measures it deems most suited to the state needs, provided they

comply with the statutory requirements applicable to the element at

issue. A state should not be subject forever to the

[[Page 51609]]

identical measures in the FIP, notwithstanding its initial failure to

meet the statutory requirement giving rise to the FIP.

In contrast, ACLPI, without any textual support, attempts to turn

section 110(l) into a savings clause. In so doing, ACLPI's

interpretation would render the Act's actual savings clauses virtually

meaningless. For example, the section 110(n) savings clause keeps in

effect pre-amendment provisions of any approved or promulgated

applicable implementation plan, including a FIP, except to the extent

that EPA approves a revision.31 Using ACLPI's interpretation of

section 110(l), virtually any change to a pre-amendment SIP approved by

EPA to conform to new 1990 statutory provisions would be prohibited.

Clearly, Congress would not in one section of the statute effectively

outlaw all SIP revisions to meet the new Act's many requirements

wherever a prior SIP had addressed a similar requirement while allowing

those revisions in another section.

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\31\ See footnote 13 for the text of section 110(n). As a

savings clause, section 110(n) works in tandem with section 193, the

Act's general savings clause. Pre-amendment SIP (or FIP) provisions

remain in effect until a revision is approved by EPA, except that

discrete controls on specific sources cannot be modified unless

equivalent or greater emission reductions are assured.

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One example should suffice to demonstrate the untenability of

ACLPI's position: pre-amendment SIPs were required under pre-amended

section 110(a)(2)(B) to provide for maintenance as well as attainment

of the NAAQS. Under the 1990 Amendments, maintenance plans for

nonattainment areas are only required in connection with a

nonattainment area's redesignation to attainment. See sections

107(d)(3)(E) and 175A. Under ACLPI's interpretation, a state could

never revise its SIP to eliminate or modify its pre-amendment

maintenance plan because such an action would interfere with a

requirement of the applicable implementation plan. Clearly this result

is not what Congress intended in section 110(l).

Likewise, if ACLPI's all-encompassing interpretation of section

110(l) were to prevail, the section 193 control requirement savings

provision would make no sense. For example, if any emission limitation

for a specific source in a pre-amendment SIP (approved by EPA) were

considered an ``applicable requirement'' within the meaning of section

110(l), then any change in such a limitation would constitute

interference. If that were the case, there would be no point in

Congress' requiring that modifications to such requirements assure

equivalent or greater emission reductions. Obviously Congress intended

to allow substitution of control measures provided emissions reductions

were equivalent in such cases.

The section 110(l) admonishment that a SIP revision cannot

``interfere with any applicable requirement concerning attainment and

reasonable further progress'' or with any other ``applicable

requirement of the Act'' must be read within the broad context of the

Act rather than the narrow context of the SIP. As ACLPI has pointed

out, the primary purpose of the nonattainment provisions of the Act is

to assure attainment of the NAAQS and RFP towards attainment. Congress

in 1990 explicitly established provisions in pursuit of these goals

including contingency measures, reclassification and additional

planning requirements for attainment and RFP that are triggered by an

area's failure to attain by its attainment deadline. For CO, these

provisions lie in sections 172, 186, and 187. These statutory

requirements have been discussed extensively above and the FIP

contingency process, including the highway delay provision, serves

essentially the same purpose.32 Withdrawal of the FIP contingency

process leaves these statutory provisions fully operable and,

therefore, does not interfere with ``an applicable requirement

concerning attainment and RFP;'' to wit, the area still remains under

an applicable requirement to attain the standard and demonstrate RFP.

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\32\ This is true except for RFP. As noted before, the FIP

contingency process did not require RFP; therefore, in this regard,

the FIP contingency process does not go as far as the new statutory

scheme.

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As stated previously, for low moderate CO areas, section 172(c)(9)

establishes the only requirement for contingency measures. As discussed

elsewhere in this notice, EPA has concluded that the State's submittals

meet the requirements of section 172(c)(9). Neither the statute nor

current EPA policy requires contingency procedures (as distinguished

from actual contingency measures) in SIPs. As noted above, the 1982 SIP

guidance, which required contingency procedures and under which the FIP

was promulgated are inconsistent with the new statutory scheme and are

no longer in effect. Therefore, withdrawal of the FIP contingency

process, in conjunction with the approval of contingency measures

consistent with the requirements of the CAA, does not conflict with

current law or EPA policy regarding contingency requirements.

To summarize, EPA believes that ACLPI's contention that section

110(l) precludes EPA from approving the State's section 172(c)(9)

contingency measures and withdrawing the FIP contingency process is

supported neither by the plain language of section 110(l) nor by the

structure of the 1990 Amendments.

Finally, even if EPA believed, which it does not, that section

110(l) encompasses purely procedural statutory requirements, EPA does

not understand how its approval of the State's contingency measures and

withdrawal of the FIP contingency process could be deemed to interfere

with the Act's requirement that the State produce, and EPA approve or

disapprove, a CO SIP that provides for attainment and RFP. EPA's action

in this notice does not in any way affect the State's obligation under

the Act to produce a CO SIP that provides for attainment and RFP, nor

does it preclude in any way EPA's action on that or any other SIP the

State has submitted or will submit.

Comment: ACLPI requests that its December 22, 1995 and March 29,

1996 notices of intent to sue EPA for failing to comply with the FIP

contingency provisions be incorporated into the record of this matter.

Response: ACLPI's two notices have been incorporated into the

docket as comments on EPA's action.

Comment: ACLPI states that rather than moving forward with adoption

of additional measures to produce attainment, the Agency is proposing

to ignore the bulk of the State's CO SIP and its SIP call and only act

on the State's contingency procedures.

Response: Approval of the State's contingency measures does not

indicate what future action EPA will or will not take on the State's

1993 CO plan, which was submitted in response to EPA's August 9, 1993

SIP call, nor does it preclude any future actions on that plan. EPA's

SIP call did not require that the State submit section 172(c)(9)

contingency measures. As discussed above, the section 179(c)(9)

requirement for specific contingency measures is a separate and

distinct provision of the Act that may be approved separately from

other elements of the CO plan.

Comment: ACLPI claims that the extension and reclassification

procedures in the 1990 Amendments assume that EPA will first review,

and approve or disapprove moderate area CO SIPs before considering

reclassification and attainment deadline extensions, and that EPA has

flouted those requirements here.

[[Page 51610]]

Response: EPA does not agree that reclassification of an area to

serious under the Act requires prior review and approval or disapproval

of a moderate area plan.33 Once an attainment date has passed, EPA

must determine, based solely on ambient air quality data, whether an

area has failed to attain without regard to whether EPA has approved a

plan for the area. Once the Agency makes this finding, the area is

reclassified to serious by operation of law. See section 186(b)(2). As

a result of its recent reclassification to serious, the Maricopa area

is now required to submit a new serious area CO plan by February 28,

1998. See footnote 3. Because the Phoenix area experienced violations

of the CO standard in 1995, it did not qualify for an extension of its

attainment date; therefore, CAA requirements for extension of the

attainment date are not relevant.

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\33\ Note that for low moderate areas the only plan submittals

required by the CAA are section 172(c)(9) contingency measures and a

section 187(a) emissions inventory. Therefore Congress could not

have intended that EPA act on attainment plans for these areas

before considering an attainment deadline extension or

reclassification.

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B. Comments by the Maricopa Association of Governments, May 9, 1996

Comment: MAG made three technical comments correcting certain

references in the proposal:

Page 15747, second column, first partial paragraph: The

appropriate reference is ``See 1993 CO Plan Addendum, Appendix, Exhibit

4, memo re: Re-calculation of Carbon Monoxide Emission Reductions for

the Committed Measures.''

Page 15750, first column, first full paragraph, third

sentence: The phrase ``1996 and 1997'' is inconsistent with the data

provided and should be replaced with ``1995 through 1997.''

Page 15750, first column, second full paragraph, third

sentence: The phrase ``1996 and 1997'' is inconsistent with the data

provided and should be replaced with ``1995 through 1997.''

Response: EPA notes the first correction.

EPA states in the proposal that ``data indicat[e] that emission

increases of 17 tpd from VMT growth are expected to occur in 1996 and

1997.'' EPA arrived at this number by subtracting the expected CO 1997

emissions level (without post 1995 I/M 240), 530 tpd, from the expected

CO 1995 emission level (without post 1995 I/M 240), 513 tpd. Both the

530 tpd figure and the 513 tpd figure are calculated for December 1997

and 1995, respectively. EPA's statement in the proposal is, therefore,

correct: an emission increase of 17 tpd is expected in the two year

period (characterized as 1996 and 1997 in the proposal) from December

1995 through December 1997. The same reasoning applies to MAG's third

correction.

III. Final Actions

EPA is approving into the Arizona SIP for the Phoenix CO

nonattainment area the State's enhanced remote sensing program and

traffic diversion measure as meeting the requirements of sections 110

and 172(c)(9) of the CAA.

Based on the approval of the State's contingency measures, EPA is

withdrawing the federal contingency process for the Phoenix CO

nonattainment area. Specifically, the Agency is deleting the phrase

``After December 31, 1991 for the Maricopa CO nonattainment area or''

from the contingency provisions at 56 FR 5470, column 2 (February 11,

1991). This deletion leaves the federal contingency process in place

for the Pima County CO nonattainment area. EPA also is withdrawing the

list of highway projects potentially subject to delay that was proposed

on June 28, 1993 during the partial implementation of the FIP

contingency process at that time. 58 FR 34547.

EPA is taking these actions because, with its final approval of the

State's section 172(c)(9) measures, the federal process will become

unnecessary for attainment and maintenance of the CO NAAQS in the

Phoenix area. To leave the federal process in place would complicate

air quality planning within Maricopa County and would be unnecessarily

redundant. In addition, giving preference to the State's measures is

consistent with the Clean Air Act's intent that states have primary

responsibility for the control of air pollution within their borders.

See CAA sections 101(a)(3) and 107(a).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for a revision

to the state implementation plan shall be considered separately in

light of specific technical, economic and environmental factors and in

relation to relevant statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small business, small not-for-profit enterprises and

government entities with jurisdiction over populations of less than

50,000.

SIP approvals under sections 110 and subchapter I, part D of the

Clean Air Act, do not create any new requirements but simply approve

requirements that the State is already imposing. Similarly, withdrawal

of the FIP contingency process does not impose any new requirements.

Therefore, because the federal SIP approval and FIP withdrawal does not

impose any new requirements, the Administrator certifies that they do

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal/state relationship under the Act,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

Act forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), 2 U.S.C. 1501-1571, 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 costs to State, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. Under Section 205, EPA must select the most cost-effective and

least burdensome alternative that achieves that 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 this rule.

EPA has determined that the approval action promulgated does not

include a federal mandate that may result in estimate costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector.

[[Page 51611]]

Through submission of these SIP revisions, the State and any

affected local or tribal governments have elected to adopt the program

provided for under sections 110 and 182 of the CAA. These rules may

bind State, local, and tribal governments to perform certain actions

and also require the private sector to perform certain duties. To the

extent that the rules being approved today will impose any mandate upon

the State, local, or tribal governments either as the owner or operator

of a source or as a regulator, or would impose any mandate upon the

private sector, EPA's action will impose no new requirements; such

sources are already subject to these requirements under State law.

Similarly, EPA's withdrawal of the FIP contingency process will not

impose any new requirements. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action. EPA has also determined that this action does not include

a mandate that may result in estimated costs of $100 million or more to

State, local, or tribal governments in the aggregate or to the private

sector. This federal action approves pre-existing requirements under

State or local law, imposes no new Federal requirements, and withdraws

other federal requirements applicable only to EPA. Accordingly, no

additional costs to State, local or tribal governments, or to the

private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) added by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA submitted 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 prior to publication of the rule in today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by December 2, 1996. 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,

Incorporation by reference, Intergovernmental relations.

Dated: September 26, 1996.

Carol M. Browner,

Administrator.

For the reasons set forth in this preamble, 40 CFR part 52 is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart D--Arizona

2. Section 52.120 is amended by adding paragraphs (c)(83) and

(c)(85) to read as follows:

Sec. 52.120 Identification of plan.

* * * * *

(83) Plan revisions were submitted on December 11, 1992, by the

Governor's designee.

(i) Incorporation by reference.

(A) State Transportation Board of Arizona.

(1) Resolution to Implement a Measure in the Maricopa Association

of Governments 1992 Carbon Monoxide Contingency Plan, adopted on

November 20, 1992.

(85) Plan revisions were submitted on April 4, 1994, by the

Governor's designee.

(i) Incorporation by reference.

(A) Arizona Revised Statutes.

(1) House Bill 2001, Section 27: ARS 49-542.01(E) approved by the

Governor on November 12, 1993.

[FR Doc. 96-25400 Filed 10-2-96; 8:45 am]

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