Final Rule Making Findings of Failure To Submit Required State Implementation Plan: Oregon

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5831-9]

Final Rule Making Findings of Failure To Submit Required State

Implementation Plan: Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action in making a finding, pursuant to

sections 179(a)(1) and 110(k) of the Clean Air Act (CAA or Act), as

amended in 1990 (Pub. L. No. 101-549, November 15, 1990), 42 U.S.C.

7509(a)(1) and 7410, for the state of Oregon. The EPA has determined

that Oregon has failed to submit a state implementation plan (SIP) for

particulate matter less than or equal to 10 microns (PM-10) as required

under the provisions in the Act for the Medford-Ashland nonattainment

area. This rule addresses the requirement under section 189(a)(2)(A) of

the Act that each state shall submit the SIP required under section

189(a)(1) within one year of the date of the enactment of the Clean Air

Act Amendments of 1990 (i.e., by November 15, 1991) for areas

designated nonattainment for PM-10 under section 107(d)(4). Other

provisions required under section 189(a)(1)(A) were due at a later date

(i.e., provisions relating to new source review).

This action triggers the 18-month time clock for mandatory

application of sanctions in the Medford-Ashland PM-10 nonattainment

area under the Act. This action is consistent with the CAA mechanism

for assuring SIP submission.

EFFECTIVE DATE: June 13, 1997.

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ADDRESSES: Copies of the state's request and other information

supporting this action are available for inspection during normal

business hours at the following locations: EPA, Office of Air Quality

(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101; EPA Oregon

Operations Office, 811 SW Sixth Avenue, Third Floor, Portland, Oregon

97204; and the Oregon Department of Environmental Quality, 811 SW Sixth

Avenue, Portland, Oregon 97204-1390.

FOR FURTHER INFORMATION CONTACT: Rindy Ramos, EPA, Office of Air

Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, (206)

553-6510.

SUPPLEMENTARY INFORMATION:

I. Background

A. SIP Elements Due November 15, 1991

The area within the Medford-Ashland, Oregon, Air Quality

Maintenance Area was designated nonattainment for PM-10 and classified

as moderate under Sections 107(d)(4)(B) and 188(a) of the CAA, upon

enactment of the Clean Air Act Amendments (CAAA) of 1990.1

See 56 FR 56694 (November 6, 1991) and 40 CFR 81.338.

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\1\ The 1990 Amendments to the Clean Air Act made significant

changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399.

References herein are to the Clean Air Act, as amended (``the

Act''). The Clean Air Act is codified, as amended, in the U.S. Code

at 42 U.S.C. Sections 7401, et seq.

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The air quality planning requirements for moderate PM-10

nonattainment areas are set out in Subparts 1 and 4 of Title I of the

Act.2 EPA has issued a ``General Preamble'' describing EPA's

preliminary views on how EPA intends to review SIPs and SIP revisions

submitted under Title I of the Act, including those state submittals

containing moderate PM-10 nonattainment area SIP requirements (see

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

1992)). The General Preamble provides a detailed discussion of EPA's

interpretation of the Title I requirements.

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\2\ Subpart 1 contains provisions applicable to nonattainment

areas generally, and Subpart 4 contains provisions specifically

applicable to PM-10 nonattainment areas. At times, Subpart 1 and

Subpart 4 overlap or may conflict. EPA has attempted to clarify the

relationship among these provisions in the ``General Preamble'' and,

as appropriate, in today's notice and supporting information.

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Those states containing initial moderate PM-10 nonattainment areas

(those areas designated nonattainment under Section 107(d)(4)(B)) were

required to submit, among other things, the following provisions by

November 15, 1991:

1. Provisions to assure that 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) shall be implemented no later

than December 10, 1993;

2. Either a demonstration (including air quality modeling) that the

plan will provide for attainment as expeditiously as practicable but no

later than December 31, 1994, or a demonstration that attainment by

that date is impracticable;

3. Quantitative milestones which are to be achieved every three

years and which demonstrate Reasonable Further Progress (RFP) toward

attainment by December 31, 1994; and

4. Provisions to assure that the control requirements applicable to

major stationary sources of PM-10 also apply to major stationary

sources of PM-10 precursors except where the Administrator determines

that such sources do not contribute significantly to PM-10 levels which

exceed the NAAQS in the area. See Sections 172(c), 188, and 189 of the

Act.

States with initial moderate PM-10 nonattainment areas were

required to: (1) submit a permit program for the construction and

operation of new and modified major stationary sources of PM-10 by June

30, 1992 (see Section 189(a)); and (2) submit contingency measures by

November 15, 1993, which were to become effective without further

action by the state or EPA, upon a determination by EPA that the area

has failed to achieve RFP or to attain the PM-10 NAAQS by the

applicable statutory deadline (see Section 172(c)(9) and 57 FR 13543-

13544). Oregon has made submittals in response to both of the above

described requirements. EPA intends to address the submittal containing

the new source review permit program in a separate action.

B. State Withdrawal of November 15, 1991, SIP

On November 15, 1991, to address the CAAA of 1990, Oregon submitted

a PM-10 nonattainment area SIP for the Medford-Ashland PM-10

nonattainment area. EPA determined the submittal to be complete on

April 10, 1992. However, because of various problems with the submittal

that EPA and the state were working to resolve, EPA had, to date, not

taken formal action on the nonattainment area attainment plan.

On January 6, 1997, EPA received a notification from the Oregon

Department of Environmental Quality (ODEQ) that it was withdrawing the

Medford-Ashland PM-10 SIP. The state requested that the attainment plan

be withdrawn effective immediately.

As indicated in its January 6, 1997, letter, ODEQ intends to re-

submit a revised attainment plan, a complete maintenance plan, and a

request to redesignate the area to attainment by March 1998. EPA notes

that significant improvement has been made in air quality in the

Medford-Ashland PM-10 nonattainment area. Based on current air quality

data, the area has attained the annual and 24-hour PM-10 NAAQS at the

area's ambient monitoring sites. However, the area lacks a technical

demonstration indicating attainment of the NAAQS throughout the airshed

as required under the CAA.

C. Finding of Failure To Submit

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 section 179(a)(1) of the CAA, 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.

Due to the withdrawal by the state of the Medford-Ashland PM-10

attainment plan, the statutory requirement to submit such a plan for

the area is no longer satisfied. Therefore, EPA finds that the state of

Oregon has failed to make a SIP submission for the Medford-Ashland PM-

10 nonattainment area as required pursuant to section 189(a)(2)(A) of

the CAA.

If the state does not correct this deficiency, i.e., by submitting

a complete plan as required by the Act, within 18 months of the

effective date of today's rulemaking, pursuant to section 179(a) of the

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

of the CAA will be applied in the Medford-Ashland PM-10 nonattainment

area. If the state still has not made a complete submission 6 months

after the offset sanction is imposed, then the highway funding sanction

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

addition, section 110(c) of the Act provides that EPA promulgate a

federal implementation plan (FIP) no later than two years after a

finding under section 179(a) if prior to that time the EPA has not

approved the submission correcting the deficiency.

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

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

state has made a

[[Page 32209]]

complete submittal as to each of the SIP elements for which these

findings are made. In addition, EPA will not promulgate a FIP if the

state makes the required SIP submittal and EPA takes final action to

approve the submittal within two years of EPA's finding.

II. Final Action

A. Rule

Today, EPA is making a finding of failure to submit an attainment

plan for the Medford-Ashland, Oregon, PM-10 nonattainment area.

Specifically, EPA is making a finding that Oregon has not submitted a

plan satisfying the requirement under section 189(a)(2)(A) of the Act.

This section requires that each state submit a plan that includes

certain provisions required under section 189(a)(1) within one year of

the date of enactment of the Clean Air Act Amendments of 1990 (i.e., by

November 15, 1991) for areas designated nonattainment for PM-10 under

section 107(d)(4). Other provisions required under section 189(a)(1)(A)

were due at a later date (i.e., provisions relating to new source

review). See section 189(a)(2)(A).

B. Effective Date Under the Administrative Procedures Act

The Administrative Procedures Act (APA) applies to this rulemaking

action. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take

effect sooner than 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 a SIP submission that is already overdue.

On February 11, 1997, EPA notified the state that EPA was considering

the action it is taking today. Consequently, the state has been on

notice for some time that today's action was pending. In addition,

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

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

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

reasons support establishing an effective date that is earlier than 30

days after the date of publication. Therefore, today's action will be

effective June 13, 1997.

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

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

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

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

failure to submit and findings of incompleteness regarding SIP

submissions or elements of SIP submission requirements, Congress did

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

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

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

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

because no EPA judgment is involved in making a nonsubstantive finding

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

Air Act. Furthermore, providing notice-and-comment would be

impracticable because of the limited time provided under the statute

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

contrary to the public interest because it would divert agency

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

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

1994).

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866 review.

B. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), 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 the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted on by the rule.

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

The various CAA provisions discussed in this rule require the state to

submit SIPs. This rule merely provides a finding that the state did not

meet those requirements. This rule does not, by itself, require any

particular action by the 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.

C. 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

of any proposed or final rule 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.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996 (SBREFA), 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. section 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 August 12, 1997. 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 CAA section 307(b)(2), 42 U.S.C.

7607(b)(2))

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Particulate

matter.

Dated: May 8, 1997.

Chuck Clarke,

Regional Administrator.

[FR Doc. 97-15566 Filed 6-12-97; 8:45 am]

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