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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ033-0002 FRL-5456-7]

Approval and Promulgation of Implementation Plans; Arizona--

Maricopa Nonattainment Area; Carbon Monoxide

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve contingency measures adopted

pursuant to the Clean Air Act (CAA) and submitted to EPA as revisions

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

(Phoenix) carbon monoxide (CO) nonattainment area. The intended effect

of approving these contingency measures is to regulate emissions of CO

in accordance with the requirements of the CAA. Based on the proposed

approval of these measures, EPA is proposing to withdraw its Federal

contingency process for the Maricopa area and its proposed list of

highway projects subject to delay.

DATES: Written comments on this proposal must be submitted to EPA at

the address below by May 9, 1996. A public hearing, if requested, will

be held in Phoenix, Arizona. If such a hearing is requested, it will be

held on April 23, 1996. If a hearing is requested, the comment period

will be extended until May 24, 1996. The purpose of the extension of

the comment period beyond May 9, 1996 is to provide an opportunity for

the submission of rebuttal and supplementary information. Anyone who

wishes to request a public hearing should call Wallace Woo at 415-744-

1207 by April 16, 1996.

ADDRESSES: Written comments should be sent to: Wallace Woo, Chief,

Plans Development Section, A-2-2, U.S. Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San Francisco, California 94105.

The rulemaking docket for this notice, Docket No. 96-AZ-PL-001, may

be inspected and copied at the following location between 8 a.m. and

4:30 p.m. on weekdays. A reasonable fee may be charged for copying

parts of the docket. U.S. Environmental Protection Agency, Region 9,

Air and Toxics Division, Plans Development Section, A-2-2, 75 Hawthorne

Street, San Francisco, California 94105.

Copies of the docket are also available at the State office listed

below:

Arizona Department of Environmental Quality, Library, 3033 North

Central Avenue, Phoenix, Arizona 85012

FOR FURTHER INFORMATION CONTACT: Jerry Wamsley, A-2-2, Air and Toxics

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

Street, San Francisco, California 94105, (415) 744-1226.

SUPPLEMENTARY INFORMATION:

I. Background

A. 1991 Federal Implementation Plan

On February 11, 1991, EPA disapproved under the Clean Air Act (CAA)

portions of the Arizona State implementation plan (SIP) and promulgated

a limited Federal implementation plan (FIP) for the Maricopa County

(Phoenix), Arizona carbon monoxide (CO) nonattainment area. EPA

disapproved portions of the SIP and promulgated the FIP in response to

an order of the Ninth Circuit Court of Appeals in Delaney v. EPA, 898

F.2d 687 (9th Cir. 1990). 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).

The Delaney order required EPA to promulgate, as part of the FIP, a

two-part contingency process consistent with the Agency's 1982 ozone

and CO SIP guidance (1982 guidance) regarding contingency procedures

found at 46 FR 7187, 7192 (January 22, 1981). 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-

5472.1

\1\ Implementation of the FIP contingency process was triggered

by violations of the CO standard in Phoenix in December 1992. On

June 28, 1993, EPA published a notice of proposed rulemaking

proposing to find that the implementation plan was inadequate and

that additional control measures were necessary to attain and

maintain the CO 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 for Phoenix under the 1990 Clean Air Act Amendments. As a

result, EPA took no final action on the June 28, 1993 proposal.

Therefore, EPA is today withdrawing the proposed list of highway

projects subject to delay because it is no longer current and would

have to be updated and revised if the FIP contingency process were

to be implemented again.

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B. 1990 Clean Air Act Amendments

Following the FIP proposal, but before the final rulemaking,

Congress passed and the President signed into law on November 15, 1990,

the Clean Air Act Amendments of 1990 (CAAA), 42 U.S.C. Secs. 7401-

7671q. These Amendments made significant changes to the pre-existing

Act and established a new context in which the air quality goals of the

nation are to be achieved. In particular, Congress 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. Sections 171-193.

The 1990 Amendments established two classifications of CO

nonattainment areas, ``moderate'' and ``serious,'' depending on the

severity of the problem, and set new deadlines for the attainment of

the NAAQS for each classification. Pursuant to the 1990 Amendments, the

Phoenix nonattainment area was classified as moderate by operation of

law. 40 CFR Part 81.303. The 1990 Amendments set forth new and separate

requirements for moderate CO nonattainment areas depending on whether

their design value was below or above 12.7 ppm. The design value for

Phoenix is below 12.7 ppm. 40 CFR Part 81.303. The attainment deadline

for moderate CO areas, regardless of their design value, was as

expeditiously as practicable but not later than December 31, 1995. See

section 186(a)(1).

Under section 186(a)(4), EPA may, upon application by a state

extend the attainment deadline if the state has complied with all

requirements and commitments pertaining to the area in the applicable

plan, and there has been no more than one exceedance of the CO NAAQS in

the year preceding the extension year. Under this provision, EPA may

grant up to two such extensions if these conditions have been met.

Under section 186(b)(2) of the amended Act, EPA is required to

determine within six months following the attainment deadline whether

the area has attained the CO standard. If the Agency determines that

the area has not attained the standard, the area is reclassified to

serious by operation of law and must comply with a new set of

requirements applicable to that classification.

II. CAA Contingency Requirements and EPA Guidance

A. Section 172(c)(9)

Among the new requirements in the 1990 Amendments for moderate

areas with design values below 12.7 ppm (low moderate areas) is a new

provision relating to contingency measures.2 Section 172(c)(9)

requires that the plan for such an area ``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.''

\2\ The pre-1990 Act contained no statutory provision for

contingency measures. As a result of this absence, EPA developed the

1982 guidance pursuant to which EPA promulgated the FIP contingency

process.

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B. EPA Guidance

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''

that sets forth EPA's preliminary views on how the Agency intends to

act on SIPs submitted under Title I of the Act. See generally 57 FR

13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). EPA has also

issued a ``Technical Support Document to Aid the States with the

Development of Carbon Monoxide State Implementation Plans,'' July 1992.

This 1992 TSD expands on EPA's interpretation of the CO SIP

requirements in the General Preamble.

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. See 57 FR 13498,

13532-13533. In connection with the discussion of requirements for

moderate ozone areas, the General Preamble addresses generally the

section 172(c)(9) requirements which are applicable to low moderate CO

nonattainment areas such as Phoenix as well. 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. As a result of this requirement, the 1992 TSD states that

contingency measures must be adopted and enforceable prior to

submission to EPA.

In the 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.

In the TSD, EPA lists several examples of contingency measures that

a state might choose, and concludes that the selected measures must be

implemented within 12 months after the finding of failure to attain.

III. Contingency Measure SIP Revisions

A. Enhanced Remote Sensing Program

On November 11, 1993, the Arizona legislature adopted House Bill

(H.B.) 2001. H.B. 2001 is included in the Maricopa Association of

Government's (MAG) Addendum to the 1993 Carbon Monoxide Plan for the

Maricopa County Area.3 MAG held a public hearing on the 1993 CO

Plan Addendum on March 17, 1994. Following adoption by the MAG Regional

Council on March 25, 1994, the 1993 CO Plan Addendum was forwarded to

the State of Arizona. The State then submitted the plan to EPA as a

revision to the Arizona CO SIP on April 4, 1994. For more information

on the public hearing process, see ``MAG 1993 Carbon Monoxide Plan for

the Maricopa County Area, Addendum,'' Appendix, Exhibit 5.

\3\ EPA intends to propose action on the rest of the measures

and the attainment demonstration in the 1993 CO Plan Addendum later

this year.

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An enhanced remote sensing program was included in H.B. 2001 which,

among other things, revised title 49 of the Arizona Revised Statutes

(ARS) by adding section 49-542.01. Section 49-542.01 describes the

requirements of the remote sensing program, including the enhanced

remote sensing component which is set forth in section 49-542.01.E.:

If the Administrator of the United States Environmental

Protection Agency finds that Area A 4 has failed to demonstrate

reasonable further progress or has failed to attain the national

ambient air quality standard for ozone or carbon monoxide by the

applicable attainment date, the notification procedure and

requirements shall comply with subsection C of this section, except

that the emissions test shall be required the first time a vehicle

is identified.

\4\ Area A, as defined in ARS section 49-541.1., is a CO

nonattainment area in a county with a population of one million two

hundred thousand or more persons as determined by the most recent

U.S. census. The Phoenix CO nonattainment area currently falls

within this definition.

The enhanced remote sensing program differs from the basic remote

sensing program, subsections B. and C. of section 49-542.01, in its

immediate requirement for vehicle inspection and testing. Under the

enhanced remote sensing program, once a vehicle has been identified as

exceeding specified emissions cutpoints, the vehicle owner is informed

of the test results and required to have the vehicle tested within 30

days at an official state vehicle emissions inspection station. If the

vehicle owner does not comply with this requirement, the Arizona

Department of Transportation (ADOT) is required to suspend the

vehicle's registration. Under the basic remote sensing program the

vehicle owner is not required to have the vehicle tested at a state

vehicle emissions inspection station unless a second notification is

received within 12 months of the first notification that the vehicle

has again failed a remote sensor emissions test.

The enhanced remote sensing contingency measure is administered by

the State through the Arizona Vehicle Emission Inspection program which

was approved into the CO SIP by EPA on May 8, 1995 at 60 FR 22518. That

Federal Register notice describes the statutory and regulatory

provisions applicable to the inspection and maintenance (I/M) program.

Those provisions include an annual emissions inspection program, ARS

section 49-542, and funding for that program and the remote sensing

programs, ARS section 49-544. The emission reductions assigned to the

enhanced remote sensing program are 6.5 metric tons/day (tpd) of CO.

These reductions represent a 0.79% reduction from the total estimated

1995 CO baseline emissions. See 1993 CO Plan Addendum, Appendix,

Exhibit 3, ``Revised Base Case and Demonstration of Attainment for

Carbon Monoxide for Maricopa County,'' Table 2-7, page 2-11.

B. Traffic Diversion Measure

On September 10, 1992, MAG held a public hearing on a traffic

diversion measure which was adopted by the MAG Regional Council on

October 28, 1992 subject to receiving an implementation commitment. On

November 20, 1992, the Arizona Transportation Board adopted a

resolution (ADOT resolution) committing to implement the measure. On

November 24, 1992, MAG forwarded the ADOT resolution to ADEQ and the

State submitted it to EPA on December 11, 1992. On February 24, 1993,

MAG adopted the ``MAG Process and Impact Documentation for Carbon

Monoxide Contingency Measures'' (MAG process document) which describes

the traffic diversion measure. The State submitted the MAG process

document as a SIP revision to EPA on June 23, 1993.\5\ The traffic

diversion measure would divert interstate through traffic around the

Phoenix nonattainment area during the high pollution season by

installing signs along alternative state highway routes. The purpose of

the traffic diversion is to manage congestion by eliminating

unnecessary traffic from the urbanized portion of the nonattainment

area, thereby reducing CO emissions.

\5\ This SIP revision also contained a MAG contingency process

that was intended to replace the FIP contingency process. EPA

proposed to approve the MAG process on December 8, 1993, but never

took final action on the proposal. 58 FR 64530. The traffic

diversion measure is also contained in the 1993 CO Plan Addendum at

p. 2-16.

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Attachment A to the ADOT resolution describes the implementation

and funding mechanisms for the measure. The appropriate signs will be

placed at designated locations within 60 days of a determination by EPA

that the Phoenix area has failed to make reasonable further progress

for CO or has failed to meet the applicable attainment date for CO.

ADOT has indicated in its 1992 resolution that it has the financial

resources and access to manpower to fabricate, install and maintain the

appropriate signs.

The traffic diversion measure was modeled based on the assumption

that half of the through traffic would be diverted to alternate routes.

Based on the modeling runs it performed, MAG estimated that if half of

the trips were voluntarily diverted through the use of alternate route

signs, there would be a .1% reduction in regional CO emissions which

equates to a reduction of .8 tpd. For additional information on the

traffic diversion measure, see the MAG process document, the November

20, 1992 ADOT resolution and the 1993 CO Plan Addendum.

IV. Standard for SIP Approval

A. Completeness

Under section 110(k)(1)(B) of the CAA, within 60 days of receipt of

a SIP submittal, but no later than six months after the date, if any,

by which a state is required to submit the plan or plan revision, EPA

must determine if the submittal meets the ``Criteria for Determining

the Completeness of Plan Submissions'' at 40 CFR Part 51, Appendix V.

If EPA has not determined six months after the receipt of the

submission that it fails to meet the Appendix V criteria, the

submission is deemed to be complete by operation of law.

EPA made no completeness finding on the 1993 CO Plan Addendum which

contains the enhanced remote sensing program. As a result, this

submittal became complete by operation of law on October 8, 1994.

EPA made no completeness finding on the submittal of the ADOT

resolution in which the Department commits to implement the traffic

diversion measure. As a result, the submittal became complete by

operation of law on June 11, 1993. EPA found the MAG process document,

which describes the traffic diversion measure, complete on July 26,

1993. See July 26, 1993 letter from David P. Howekamp, EPA, to Edward

Z. Fox, ADEQ. The traffic diversion measure is also described in the

1993 CO Plan Addendum which became complete by operation of law on

October 8, 1994.

B. Section 110(l)

Once a SIP submittal is deemed complete, EPA must next determine if

the submittal is approvable as a revision to the SIP. EPA's primary

responsibility when approving SIP revisions is to ensure that the

revisions strengthen or maintain the SIP and are consistent with CAA

requirements.

Section 110(l) of the CAA 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 [the Clean Air]

Act.'' Therefore, before

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approving the State's 172(c)(9) measures and withdrawing the FIP

contingency process, EPA must demonstrate that the revision will not:

(1) delay attainment, (2) interfere with reasonable further progress

(RFP), or (3) conflict with the Phoenix area's compliance with other

requirements of the Act. 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 is

proposing to conclude 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 measures)

in SIPs. As noted above, the 1982 SIP guidance, which required

contingency procedures and under which the FIP was promulgated, has

been superseded. Therefore, withdrawal of the FIP contingency process,

in conjunction with the approval of contingency measures consistent

with the requirements of the CAAA, does not conflict with current law

or EPA policy regarding contingency requirements.

EPA has also concluded that approval of the section 172(c)(9)

measures and withdrawal of the FIP contingency process does not

interfere with RFP. Under section 171(1) of the Act, RFP means ``such

annual incremental emission reductions as are required by this part [D]

or may reasonably be required by the Administrator for the purpose of

assuring attainment of the applicable national ambient air quality

standard by the applicable attainment date.'' Under section 172(c)(9),

contingency measures are designed to go into effect if the area fails

to make RFP or to attain the NAAQS. Thus, by their very nature, such

measures become operative only when there has been a failure to make

RFP. Therefore, approval of the State's contingency measures and

withdrawal of the FIP contingency process cannot be said to interfere

with RFP.

The final remaining inquiry under section 110(l) is whether

approval of the State's section 172(c)(9) measures and withdrawal of

the FIP process would interfere with timely attainment. Under the pre-

amended Act there were no statutory provisions to extend the attainment

deadline or to establish a new deadline if an area failed to attain the

NAAQS by the applicable statutory deadline. EPA's pre-amendment

contingency guidance was created to fill this vacuum by requiring

states to include in their SIPs a self-executing process 6 to

delay highway projects that could adversely affect air quality while

new control measures were being adopted to cure the attainment

shortfall. See 46 FR 7182. The FIP contingency process was developed to

comply with this guidance in the context of the pre-amended Act.7

\6\ Under section 110(a)(2)(H) of the pre-amended Act, EPA could

require a state to revise its SIP if the Agency made a finding that

the plan was substantially inadequate to achieve the NAAQS or to

otherwise comply with the requirements of the Act.

\7\ The FIP, which contained control measures, an attainment

demonstration and conformity procedures as well as a contingency

process, was proposed prior to the passage of the CAAA. Therefore it

was developed under the pre-1990 statute and EPA guidance designed

to implement that Act. Even though the CAAA were enacted prior to

EPA's final FIP rulemaking, the final FIP reflected the requirements

of the old law and guidance.

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The FIP contingency process involves, among other things, various

assessments and findings that then determine what action, if any, EPA

must take if a violation occurs after the attainment deadline,

currently December 31, 1995. At its most aggressive, the FIP process

requires EPA to adopt measures to cure the shortfall within a minimum

of 14 to 16 months from a violation occurring after the attainment

deadline. Even if the FIP requirement to adopt new control measures to

cure the shortfall can be construed as, effectively, a requirement to

adopt a new attainment demonstration, such a demonstration would be

developed under the amended Act's provisions.

The CAAA contain an entirely different scheme for dealing with a

violation of the NAAQS after 1995. In the case of Phoenix, which

recorded apparent violations 8 of the CO standard in 1995 and

early 1996, the area is not expected to be able to qualify for

attainment deadline extensions under the extension provisions of the

amended Act. Rather, following a finding by EPA that the area failed to

attain the CO standard, it would be reclassified to serious. Once

reclassified, under section 187(f) and EPA guidance,9 Arizona

would be required to submit a new plan meeting the serious area

requirements of section 187(c)(1) 18 months after reclassification that

demonstrates attainment as expeditiously as practicable but not later

than December 31, 2000. See section 186(a)(1). For the 18 month period

during which the new SIP is being developed, the section 172(c)(9)

contingency measures would go into effect to ensure that air quality in

the area does not deteriorate pending development of the serious area

attainment demonstration.

\8\ EPA has not yet completed its review of the 1995 air quality

data for the Phoenix area and, under 40 CFR section 58.35(c)(1), the

State has until June 30, 1996 to formally submit data from the first

quarter of 1996.

\9\ See Memorandum from Sally Shaver, Director, Air Quality

Strategies and Standards Division, EPA, to Air Division Directors

entitled ``Criteria for Granting Attainment Date Extensions, Making

Attainment Determinations, and Determinations of Failure to Attain

the NAAQS for Moderate CO Nonattainment Areas.'' October 23, 1995.

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As demonstrated above, the section 172(c)(9) measures in the

amended Act take the place of, and serve the same purpose as, the

highway delay provision in EPA's pre-amendment guidance and the FIP

contingency process. Similarly, the extension and reclassification

provisions of the amended Act replace the pre-amendment contingency

guidance and the FIP provision for adoption of additional control

measures to cure the shortfall. EPA recognized this when it indicated

that its 1982 guidance on contingency procedures was no longer

applicable.

Interference with timely attainment under section 110(l) can be

found only if the existing statutory scheme for attainment would be

thwarted by replacing the FIP contingency process with the State's

section 172(c)(9) measures. Rather than thwarting the amended Act's

statutory scheme, such a substitution will serve to bring Phoenix in

line with what Congress intended in the CAAA. In short, the existence

of the FIP contingency process in the context of the CAAA is at best an

uncomfortable fit, and at worst it is duplicative and inconsistent with

the new statutory scheme. Thus approving Arizona's section 172(c)(9)

measures and withdrawing the FIP process would promote Congress' intent

in crafting the new attainment provisions. Under these circumstances,

EPA believes that such an outcome would clearly not interfere with

timely attainment within the meaning of section 110(l).

C. Section 193

On December 8, 1993, EPA proposed to withdraw the FIP contingency

process and to approve in its place a similar process adopted by MAG

and submitted to EPA as a SIP revision. 58 FR 64530. While EPA did not

take final action on this proposal, during the public comment period

following its publication, the Arizona Center for Law in the Public

Interest (ACLIPI) filed comments in which it asserted, among other

things, that section 193, the general savings clause, applies to the

FIP contingency process. EPA disagrees with ACLIPI. Since such a

comment is relevant to today's proposal, the Agency is addressing it

here. Section 193 provides in pertinent part that:

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[N]o 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.

The contingency process contained in the Maricopa CO FIP was

required by a March 1, 1990 order of the 9th Circuit--before the

enactment of the CAAA on November 15, 1990. ACLIPI contended that the

FIP contingency process falls within the scope of the above language of

section 193 and that therefore EPA may not modify that process unless

the modification insures equivalent or greater emission reductions.

Having concluded that Maricopa's pre-amendment CO plan did not

contain contingency procedures that met EPA's 1982 guidance, the 9th

Circuit ordered EPA to promulgate a Federal plan that contained

contingency procedures in accordance with that guidance. Delaney, at

695. 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

potentially involves, among other things, various assessments and

findings, air quality modeling, review and delay of current highway

projects in Arizona, and the 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. The FIP contingency process is

described in detail at 56 FR 5471-5472.

EPA does not believe that such a process constitutes a ``control

requirement'' within the meaning of section 193 of the Act. On its

face, the savings clause prohibits the modification only of existing

control requirements or specific control requirements required to be

adopted pursuant to an order. While EPA was required by the Court's

order in Delaney to promulgate a contingency plan in accordance with

the Agency's then existing guidance, the Court did not order EPA to

promulgate any specified control requirements in that plan. Indeed, the

inclusion of any specific control requirements by EPA would not have

been consistent with the terms and intent of EPA's 1982 guidance on

contingency procedures.

While ``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 control requirement for a smoke stack

at a power plant. By contrast, a contingency process, as outlined by

EPA's 1982 guidance, is much broader and far-reaching than a control

requirement. Therefore, 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.

Beyond the plain language of section 193, 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.

These requirements are discussed in previous sections of this notice.

As shown above, the eternal retention of the FIP contingency process

(or its equivalent) in the applicable plan for Phoenix would forever

overlay its outdated, inconsistent planning scenario on the new

statutory scheme.

For these reasons, EPA has concluded that both the plain language

of section 193 and the new statutory scheme support EPA's

interpretation that the FIP contingency process is not subject to the

restrictions concerning equivalent emission reductions in section 193.

V. EPA Evaluation of SIP Submittal

A. Enhanced Remote Sensing Program

EPA has evaluated Arizona's enhanced remote sensing program and

concluded that it meets the requirements of section 110(a)(2) of the

CAA. The program is administered by the Arizona Department of

Environmental Quality (ADEQ) as part of Arizona's I/M program which has

been approved into the CO and ozone SIP. ARS section 49-542; 60 FR

22518. Arizona law confers the legal authority on ADOT to enforce the

program's requirements through vehicle registration suspension. ARS

section 49-542.01.C. The program is adequately funded through an

emissions inspection fund. ARS section 49-544.

EPA has also concluded that the enhanced remote sensing program

meets the requirements of section 172(c)(9) and EPA's guidance on

contingency requirements for low moderate CO nonattainment areas. The

program is fully adopted and capable of implementation upon a finding

by EPA that the Phoenix area has failed to attain the CO NAAQS by the

applicable attainment date. Therefore, the program meets the section

172(c)(9) requirement that, when triggered, contingency measures must

take effect without further action by the State or the Administrator.

B. Traffic Diversion Measure

EPA has evaluated MAG's traffic diversion measure and concluded

that it meets the requirements of section 110(a)(2) of the CAA. ARS

section 28-642 authorizes ADOT to place and maintain traffic control

devices on all state highways for the purpose of traffic regulation. As

discussed in section III.B. of this notice, ADOT has indicated in its

1992 resolution that it has both the funding and personnel to implement

the measure once it is triggered by an EPA finding.

The implementation commitment in the ADOT resolution is in

enforceable form and therefore legally binds the Department to initiate

the traffic diversion measure within 60 days of an EPA finding.

However, the measure's ability to achieve emission reductions is

entirely dependent on the voluntary actions of motorists, and there is

no credible means of determining how many of them will heed the signs'

exhortations. Therefore, while MAG has estimated that the measure will

reduce CO emissions in the Phoenix area by .8 tpd, EPA is assuming, for

the purposes of its proposed section 172(c)(9) approval, only that the

measure will result in some, albeit unquantifiable, emission reduction

benefit.

With respect to the requirements of section 172(c)(9) and EPA's

guidance on contingency measures for low moderate CO areas, EPA has

concluded that the traffic diversion measure is acceptable. ADOT has

indicated in its 1992 resolution that it can implement the measure

within 60 days of an EPA finding and has committed to do so. EPA has

stated in its 1992 TSD that states must show that their contingency

measures can be implemented with minimal further action (other than

rulemaking) and that full implementation of the measures within 60 days

after EPA notification is sufficient to meet the section 172(c)(9)

requirements.

EPA believes that the traffic diversion measure, when triggered as

a contingency measure, will serve to strengthen the SIP. Although EPA

cannot now find that the measure will produce any specific amount of

emission reduction, the measure, taken in conjunction with the enhanced

remote sensing program and other

[[Page 15750]]

emission reductions occurring in the area, as described below, will

result in reductions more than adequate to offset one year of VMT

growth as suggested by EPA's guidance.

C. Additional Post-1995 Emission Reductions

As has been shown above, CO emission reductions of 6.5 tpd are

expected to result from the implementation of the enhanced remote

sensing program. Moreover, EPA believes that some additional but

unknown reductions will be achieved through implementation of the

traffic diversion measure. The State has provided to EPA data

indicating that emissions increases of 17 tpd from VMT growth are

expected to occur in 1996 and 1997, the period during which the SIP

would be revised if the area is found to have failed to attain the CO

standard by December 31, 1995.

The State has also provided information documenting that emission

reductions of 32 tpd are expected to be achieved in 1996 and 1997

through continued implementation of Arizona's I/M program beyond those

reductions achieved through 1995 from the I/M program. The 6.5 tpd

reductions from the enhanced remote sensing program and the additional

benefits from the traffic diversion measure, if triggered as

contingency measures, in conjunction with these additional I/M

reductions, are more than sufficient to offset the projected emissions

associated with VMT growth during the 2 year SIP revision

period.10

\10\ Additional information on VMT growth and emission

reductions from the I/M program after 1995 is provided in the TSD

for this notice.

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As set forth in section II.B. of this notice, EPA suggested in its

1992 TSD that contingency measures for these areas achieve emission

reductions offsetting one year's VMT growth while the SIP is being

revised. In establishing this suggested benchmark, EPA intended that,

following a finding of nonattainment, 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. 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.

For the above reasons, EPA is proposing to approve the State's

enhanced remote sensing program and the MAG traffic diversion measure

as meeting the requirements of section 172(c)(9).

VI. Withdrawal of Federal Contingency Process

Based on the proposed approval of the State's 172(c)(9) contingency

measures, EPA is proposing to withdraw the Federal contingency process

for the Phoenix CO nonattainment area. Specifically, the Agency is

proposing to delete 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 will leave the

Federal contingency process in place for the Pima County CO

nonattainment area. EPA also proposes to withdraw 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 proposing 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).

VII. Summary of EPA Actions

EPA is today proposing to approve into the Arizona SIP for the

Phoenix CO nonattainment area the State's enhanced remote sensing

program and the MAG traffic diversion measure as meeting the

requirements of section 172(c)(9) of the CAA. EPA is also proposing to

withdraw the Federal contingency process promulgated pursuant to

section 110(c) of the Act and published on February 11, 1991 (56 FR

5458). Finally, EPA is withdrawing the list of highway projects subject

to delay proposed on June 28, 1993 (58 FR 34547) as part of the

implementation of the Federal contingency process in 1993.

Nothing in this proposed 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.

VIII. Regulatory Process

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 301 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, it does 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).

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

Unfunded Mandates

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

Act of 1995 (``Unfunded Mandates Act''), 2 U.S.C. Secs. 1501-1571,

signed into law on March 22, 1995, EPA must undertake various actions

in association with proposed or final rules that include a Federal

mandate that may result in estimated costs of $100 million or more to

the private sector, or to State, local, or tribal governments in the

aggregate.

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

[[Page 15751]]

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations.

Authority: 42 U.S.C. 7401-7671q.

Dated: April 3, 1996.

Carol M. Browner,

Administrator.

[FR Doc. 96-8807 Filed 4-8-96; 8:45 am]

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