Phase I Finding of Failure to Submit Required State Implementation Plans for the Philadelphia Ozone Nonattainment Area; Pennsylvania

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 104-4059; FRL-5826-3]

Phase I Finding of Failure to Submit Required State

Implementation Plans for the Philadelphia Ozone Nonattainment Area;

Pennsylvania

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action in making a finding, under the

Clean Air Act (ACT), that Pennsylvania failed to make a complete ozone

nonattainment submittal required for the Philadelphia nonattainment

area under the Act. Under certain provisions of the Act, as implemented

consistent with a memorandum issued by EPA Assistant Administrator Mary

D. Nichols, on March 2, 1995, Pennsylvania was required to submit SIP

measures providing for certain percentage reductions in emissions of

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

SIP commitments to submit SIP measures providing for the remaining

required rate-of-progress reductions and any additional emission

reductions needed for attainment of the ozone ambient air quality

standard in Philadelphia. This action triggers the 18 month time clock

for mandatory application of sanctions in Pennsylvania under the Act.

This action is consistent with the CAA mechanism for assuring SIP

submittals.

EFFECTIVE DATE: This final rule is effective as of May 7, 1997.

FOR FURTHER INFORMATION CONTACT: General questions concerning this

document should be addressed to Marcia Spink, Associate Director, Air

Programs (3AT00), Air, Toxics and Radiation Division, U.S. EPA Region

III,

[[Page 27202]]

841 Chestnut Building, Philadelphia, Pennsylvania, 19107, (215) 566-

2104.

SUPPLEMENTARY INFORMATION:

I. Background

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

things, continued nonattainment of the ozone national ambient air

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

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

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

design value; and establish specific requirements, including new

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

and 181.

The 1990 Amendments required states containing the highest

classified ozone nonattainment areas--those classified as serious,

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

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

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

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

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

these states to submit a demonstration of attainment (including air

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

containing any additional reductions that may be necessary to attain by

the attainment date. CAA sections 182(c)(2)(A). This SIP submission is

referred to as the Attainment Demonstration. These CAA provisions

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

submittals.

Notwithstanding significant efforts, the states generally were not

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

submissions.

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

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

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

the remaining difficulties in making the ROP and Attainment

Demonstration SIP submittals. The March 2, 1995 memorandum recognized

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

requirements within the deadlines prescribed by the Act due to

circumstances beyond their control. These states were hampered by

unavoidable delays in developing the underlying technical information

needed for the required SIP submittals. The Memorandum recognized that

development of the necessary technical information, as well as the

control measures necessary to achieve the large level of reductions

likely to be required, is particularly difficult for many states

affected by ozone transport.

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

1995 memorandum indicated that EPA would establish new timeframes for

SIP submittals. The Memorandum called for states seeking to avail

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

committing to the new timeframes.

The Memorandum further indicated that EPA would divide the required

SIP submittals into two phases. The Phase I submittals generally

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

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

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

remaining required ROP reductions on a specified schedule after 1996

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

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

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

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

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

could have proposed a schedule for making submissions in 1996 if

necessary due to administrative scheduling imperatives (such as the

schedule for legislative sessions).

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

primarily consisted of the remaining ROP SIP measures, the Attainment

Demonstration and required additional rules, and any regional controls

necessary for attainment by all areas in the region.

By a letter dated May 2, 1996, EPA informed Pennsylvania that it

was important that it complete the Phase I submittals as soon as

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

completing these submittals. This letter cautioned that EPA would,

within the near future, evaluate the Commonwealth's schedule; and that

if EPA considered the schedule insufficiently expeditious, EPA would

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

below, of sanctioning Pennsylvania for failing to make the required

submittals.

The EPA regional offices and state officials discussed the states'

progress, and the states developed schedules for completing the Phase I

requirements. Although EPA recognizes the continued progress states are

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

cases, the schedules presented by the states are not sufficiently

expeditious for the states to be considered in substantial compliance

with the Phase I deadlines.

The 1990 Amendments establish specific consequences if EPA finds

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

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

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

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

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

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

II. Final Action

EPA is finding that Pennsylvania has failed to make the required

SIP submissions for the Pennsylvania portion of the Philadelphia severe

ozone nonattainment area. The required SIP element that Pennsylvania

has failed to submit is the enforceable SIP commitment to adopt any

additional rules needed to complete the requirements for ROP reductions

after 1999, and until the attainment date.

If Pennsylvania does not make the required complete submittal

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

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

in CAA section 179(b) will be applied in Pennsylvania portion of the

Philadelphia nonattainment area. If Pennsylvania has still not made a

complete submission 6 months after the offset sanction is imposed, then

the highway funding sanction will apply in the Pennsylvania portion of

the Philadelphia nonattainment area, in accordance with 40 CFR 52.31.

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

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

section 179(a).

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

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

that Pennsylvania has made a complete submittal as to each of the SIP

elements for which these finding are made. In addition, EPA will not

promulgate a FIP if the Pennsylvania makes the required SIP submittal

and EPA takes final action to approve the submittal within 2 years of

EPA's finding.

At the same time as the signing of this document, the EPA Regional

Administrator for Region III is sending a letter to Pennsylvania

describing the status of the Commonwealth's effort and this finding in

more detail. This letter, and the enclosure, is included in the

[[Page 27203]]

docket to this rulemaking. EPA's finding for Pennsylvania is consistent

with those findings made for 10 other states and the District of

Columbia, described in the July 10, 1996 Federal Register (61 FR

36292).

III. Administrative Requirements

A. Rule

EPA is making a finding of Pennsylvania's failure to submit, for

the Pennsylvania portion of the Philadelphia ozone nonattainment area,

the enforceable commitment to adopt additional rules needed to complete

the requirements for ROP reductions after 1999 and until the attainment

date.

B. Effective Date Under the Administrative Procedures Act

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

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

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

adjudication, and is considering which administrative process--

rulemaking or informal adjudication--is appropriate for future actions

of this kind. Because EPA is issuing this action as a rulemaking, the

Administrative Procedures Act (APA) applies.

Today's action is effective as of May 7, 1997. Under the APA, 5

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

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

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

concerns SIP submissions that are already overdue; and EPA previously

cautioned Pennsylvania that the SIP submissions were overdue and that

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

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

against Pennsylvania for 18 months, and that Pennsylvania may ``turn

off'' through the submission of the complete SIP submittal. These

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

publication.

C. Notice and Comment Under the Administrative Procedures Act

This document is a final agency action, but it is not subject to

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

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

failure to submit and findings of incompleteness regarding SIP

submissions or elements of SIP submission requirements, Congress did

not intend such findings to be subject to notice and comment

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

and comment rulemaking, EPA invokes the good cause exception pursuant

to the APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are unnecessary

because no EPA judgment is involved in making a non-substantive finding

of failure to submit elements of SIP submissions required by the Clean

Air Act. Furthermore, providing notice and comment would be

impracticable because of the limited time provided under the statute

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

contrary to the public interest because it would divert agency sources

from the critical substantive review of complete SIPs. See 58 FR 51270,

51272, n.17 (Oct. 1, 1993); 59 FR 39832, 39853 (Aug. 4, 1994).

D. Executive Order 12866

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

regulatory action from Executive Order 12866 review.

E. Unfunded Mandates

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

Act of 1995 (``Unfunded Mandates Act'' or UMRA), signed into law on

March 22, 1995, EPA undertakes various actions in association with

proposed or final rules that include a Federal mandate that may result

in estimated costs of $100 million or more to the private sector; or to

state, local or tribal governments in the aggregate.

In addition, under the Unfunded Mandates Act, before EPA

establishes any regulatory requirements that may significantly or

uniquely affect small governments, including tribal governments, EPA

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

agency plan.

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

The various CAA provisions discussed in this notice require the states

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

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

require any particular action by any state, local or tribal government;

or by the private sector. For the same reasons, EPA has determined that

this rule contains no regulatory requirements that might significantly

or uniquely affect small governments.

F. Regulatory Flexibility Act

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

EPA must prepare a regulatory flexibility analysis assessing the impact

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

rulemaking requirements. Because this action is exempt from such

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

G. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) of the APA, as added by the Small

Business Regulatory Enforcement Fairness Act of 1996, EPA submitted, by

the effective date of this rule, a report containing this rule and

other required information to the U.S. Senate, the U.S. House of

Representatives and the Comptroller General of the United States. This

rule is not a ``major rule'' as defined by 5 U.S.C. 804(2), as amended.

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

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

applicability'', under 5 U.S.C. 804(3)(A) of APA as amended by SBREFA--

and thus exempt from the congressional submission requirements--because

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

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

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

of ``particular applicability.''

H. Paperwork Reduction Act

This rule does not contain any information collection requirements

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

3501 et seq.).

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action, pertaining to Pennsylvania's finding of

failure to submit the required SIP elements under the March 2, 1995

phased approach, must be filed in the United States Court of Appeals

for the appropriate circuit by July 18, 1997.

Dated: May 7, 1997.

W. Michael McCabe,

Regional Administrator, Region III.

[FR Doc. 97-13039 Filed 5-16-97; 8:45 am]

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