Finding of Failure To Submit Required State Implementation Plans for Ozone; Texas; Dallas/Fort Worth Ozone Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX 107-1-7407; FRL-6349-3]

Finding of Failure To Submit Required State Implementation Plans

for Ozone; Texas; Dallas/Fort Worth Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the EPA, are taking final action to find that the State of

Texas failed to submit the required State Implementation Plan (SIP) for

the Dallas/Fort Worth (DFW) ozone nonattainment area, as required by

the Federal Clean Air Act (Act). The required submittal is the serious

area plan requirements for attainment of the ozone National Ambient Air

Quality Standards (NAAQS). The deadline for the State to make the

submittal was

[[Page 29571]]

March 20, 1999. The State submitted a SIP for the DFW area on March 18,

1999. The submittal included an attainment demonstration, a Rate-Of-

Progress (ROP) Plan, and revisions to the State's rules for Nitrogen

Oxides (NOX) and Volatile Organic Compounds (VOC) Reasonably

Available Control Technology (RACT), and NOX New Source

Review, to make them applicable to the DFW area. We find that the

attainment demonstration is incomplete because it does not demonstrate,

based on photochemical modeling, that the SIP will result in attainment

as expeditiously as practicable but no later than November 15, 1999, as

required by the Act. We find that the ROP Plan is incomplete because it

does not demonstrate a rate of progress in emission reductions of at

least three percent-per-year, after accounting for growth, during the

1997 to 1999 period as required by the Act. The finding of an

incomplete submittal for the attainment demonstration and the ROP Plan

triggers the 18-month time clock for mandatory application of sanctions

and a two-year time clock for a Federal Implementation Plan (FIP) under

the Act. This action is consistent with the Act's mechanism for

assuring timely SIP submissions.

EFFECTIVE DATE: May 13, 1999.

ADDRESSES: Copies of documents relevant to this action are available

for public inspection during normal business hours at the following

locations. Anyone wanting to examine these documents should make an

appointment with the appropriate office at least two working days in

advance.

Environmental Protection Agency, Region 6, Air Planning Section

(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

Texas Natural Resource Conservation Commission, Office of Air

Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Herbert R. Sherrow, Jr. of the EPA

Region 6 Air Planning Section at (214) 665-7237 or at the address

above.

SUPPLEMENTARY INFORMATION:

I. Final Action

What Action is EPA Taking?

We find that the State of Texas failed to submit by March 20, 1999,

all elements of the SIP revisions necessary for the DFW ozone

nonattainment area to meet the Act's serious area plan requirements for

the 1-hour ozone NAAQS under section 182(c).

The elements that the State failed to submit are a complete

attainment demonstration as required by section 182(c)(2)(A)and a

complete post-1996 ROP Plan under section 182(c)(2)(B) and (C).

This finding starts the sanctions clocks in section 179(a) and FIP

clock in section 110(c). If Texas has not corrected and resubmitted the

complete serious area plan elements by November 13, 2000, the offset

sanction in section 179(b)(2) and 40 CFR 52.31 will be imposed on the

DFW nonattainment area. If Texas still has not corrected and

resubmitted the complete serious area plan elements by May 14, 2001,

the highway funding sanction in section 179(b)(1) will also be imposed

in accordance with the Act and 40 CFR 52.31. Also, section 110(c) of

the Act requires EPA to promulgate a FIP no later than two years after

a finding of failure to submit.

What is the Effective Date for This Rule?

The effective date for this rule is May 13, 1999, the date this

action was signed.

The EPA is treating this action as a ``rule.'' Under the

Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), agency rule

makings may take effect before 30 days after the date of publication in

the Federal Register if an agency has good cause to mandate an earlier

effective date. This action concerns implementation plan submittals

that are already overdue and for which the State of Texas has submitted

some incomplete elements. We have previously alerted Texas through our

public comments and meetings that the SIP submittal, as proposed, would

not be complete. Also, on May 3, 1999, we sent a letter to Texas

stating that we were planning to take the action we are taking today.

Consequently, the State has been on notice that today's action was

pending. The State and general public are aware of applicable

provisions of the Act that relate to failure to submit a required

implementation plan. In addition, this action simply starts a

sanctions/FIP clock that will not result in offset sanctions for 18

months and that the State may stop by submitting a serious ozone area

implementation plan that is complete under section 110(k) of the Act

and approvable under section 110 and part D of the Act. These reasons

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

publication.

Why is EPA Taking This Action Without Proposing and Taking Comments

First?

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

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

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

to submit regarding SIP submittals, 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,

we invoke the good cause exception in 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 an

implementation plan required by the Act. Furthermore, providing notice

and comment would be impracticable because of the limited time provided

under the Act for making such determinations.

Finally, notice and comment would be contrary to the public

interest because it would divert our resources from the critical

substantive review of submitted implementation plans. See 58 FR 51270,

51272, note 17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).

II. Background

Why is This SIP Submittal Required?

We reclassified the DFW area from moderate to serious ozone status

on February 18, 1998, since the area had not attained the NAAQS by

November 15, 1996 (63 FR 8128). As a result, the State was required to

submit a serious area SIP by March 20, 1999. The SIP required

attainment and rate of progress demonstrations and revised rules for

major source thresholds and a more stringent New Source Review program.

The state submitted revisions to its rules for NOX RACT,

NOX NSR, and VOC RACT with the March 18, 1999, submittal. We

have reviewed these rules for administrative completeness and found

them complete on the date of completeness finding. We will take action

on them in separate Federal Register notices.

The State had already submitted the other elements of a serious

area plan (e.g.; enhanced Inspection and Maintenance Program and a

Clean Fuel Fleet program).

Why is the Attainment Demonstration and the Rate-of-Progress Plan

Incomplete?

The attainment demonstration is incomplete because it does not

demonstrate, based on photochemical modeling, that the SIP will result

in attainment as expeditiously as practicable but no later than

November 15, 1999 (section 182(c)(2)(A)). The photochemical modeling

submitted is sensitivity modeling which only identifies emission

reduction targets

[[Page 29572]]

with no specific control strategy or attainment date.

The ROP Plan is incomplete because it does not demonstrate a rate

of progress in emission reductions of at least three percent-per-year,

after accounting for growth, during the 1997 to 1999 period (section

182(c)(2)(B)). The plan shows a VOC target of 28.68 tons per day and

reductions of 22.81 tons per day which leaves the plan 5.87 tons per

day short of meeting the target. The plan does not substitute

NOX reductions and meet the target (section 182(c)(2)(C).

The Plan's NOX table, on its face, considers NOX

reductions but those NOX reductions do not offset growth in

NOX emissions since 1990; therefore, they are not creditable

to the shortfall.

What are the Consequences of This Action?

The Act establishes specific consequences if a state fails to

submit a required SIP. These consequences include the mandatory

sanctions provision in section 179(a)(1) and the federal planning

requirement in section 110(c).

Under section 179(a) and 40 CFR 52.31, if Texas has not corrected

the incomplete elements and resubmitted a complete SIP within 18 months

of the effective date of today's rulemaking, the 2 to 1 offset sanction

of section 179(b) will apply in the DFW nonattainment area. This

sanction requires a company that is constructing a new or modifying an

existing facility over a certain size to reduce emissions in the area

by two tons for every new ton the new/modified facility will emit.

If the State has still not corrected the incomplete elements and

resubmitted a complete SIP six months after the offset sanction is

imposed, then the highway approval and funding sanction will apply in

the nonattainment area. This sanction prohibits the U.S. Department of

Transportation from approving or funding all but a few specific types

of transportation projects.

The order of sanctions, offsets sanctions first then highway

sanctions, is documented in our regulations at 40 CFR 52.31.

In addition to these sanctions, section 110(c) requires us to issue

a FIP no later than two years after a finding under section 179(a).

This FIP would need to address any outstanding serious area ozone

requirements for an attainment demonstration and a ROP Plan that we had

not yet approved.

The sanctions will not be imposed if, prior to the implementation

date of the offset sanction, we determine that the State has submitted

a complete plan addressing the two incomplete elements of the serious

area ozone requirements for the DFW area. If the state relies on the

control measures in the existing approved contingency plan for its ROP

Plan and/or attainment demonstration, the State would also need to

submit a new contingency plan. In addition, we are not required to

promulgate a FIP if the State makes the required SIP submittals and we

take final action to approve the submittals within two years of the

effective date of today's finding.

This preamble merely summarizes the Act's requirements for serious

ozone area plans and the Act's provisions regarding the consequences of

the failure to submit a required implementation plan. The specific

language of the Act and our regulations and policies interpreting the

Act, rather than the language of this document, govern the exact

submittals required from the State and the implementation of any

sanctions.

III. Administrative Requirements

A. Executive Order (E.O.) 12866

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

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875: Enhancing The Intergovernmental Partnership

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a State, local or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the OMB a description

of the extent of EPA's prior consultation with representatives of

affected State, local and tribal governments, the nature of their

concerns, copies of any written communications from the governments,

and a statement supporting the need to issue the regulation. In

addition, E.O. 12875 requires EPA to develop an effective process

permitting elected officials and other representatives of State, local

and tribal governments ``to provide meaningful and timely input in the

development of regulatory proposals containing significant unfunded

mandates.''

Today's rule does not create a mandate on State, local, or tribal

governments. The rule does not impose any enforceable duties on any of

these entities. This action implements EPA's requirements to review

SIPs for completeness under 40 CFR Part 51, Appendix V. The SIP

submission requirements for stopping clocks are not judicially

enforceable. Accordingly, the requirements of section 1(a) of E.O.

12875 do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997), applies to any rule that: (1) is determined to be ``economically

significant'' as defined under E.O. 12866, and (2) concerns an

environmental health or safety risk that EPA has reason to believe may

have a disproportionate effect on children. If the regulatory action

meets both criteria, the Agency must evaluate the environmental health

or safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

The EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This final rule is not subject to E.O. 13045

because it is not an economically significant regulatory action as

defined by E.O. 12866, and it does not establish a further health or

risk-based standard because it implements a previously promulgated

health or safety-based standard.

D. Executive Order 13084: Consultation and Coordination with Indian

Tribal Governments

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the OMB, in a separately identified section of the preamble

to the rule, a description of the extent of EPA's prior consultation

with representatives of affected tribal governments, a summary of the

nature of their concerns, and a statement supporting the need to issue

the regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide

[[Page 29573]]

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally

requires an agency to conduct a regulatory flexibility analysis of any

rule subject to notice and comment rulemaking requirements unless the

agency certifies that the rule will not have a significant economic

impact on a substantial number of small entities. Small entities

include small businesses, small not-for-profit enterprises, and small

governmental jurisdictions. Since this final rule is not subject to

notice-and-comment requirements under the APA, or any other statutes,

it is not subject to sections 603 or 604 of the RFA. Furthermore, this

action will not have a significant impact on a substantial number of

small entities because these findings under section 110 and subchapter

I, part D of the Act do not, in-and-of-themselves, directly impose any

new requirements on small entities. See Mid-Tex Electric Cooperative,

Inc. v. FEC, 773 F.2nd 327 (D.C. Cir. 1985) (agency's certification

need only consider the rule's impact on entities subject to the

requirements of the rule). Instead, this action makes findings of

failure to submit and establishes a schedule for Texas to stop the

clocks and does not directly regulate any entities. Therefore, I

certify that this action will not have a significant economic impact on

a substantial number of small entities.

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

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 annual costs to State,

local, or tribal governments in the aggregate; or to 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 by the rule.

Sections 202 and 205 do not apply to this action because the

findings that Texas failed to submit the required SIP for the DFW area

do not, in-and-of-themselves constitute a Federal mandate, because they

do not impose any enforceable duty on any entity. In addition, the Act

does not permit EPA to consider the type of analyses described in

section 205 in determining whether a State has failed to submit a

required SIP. Finally, section 203 does not apply to the action because

the SIP submittal schedule to stop the clocks would only affect the

State of Texas, which is not a small government.

G. Submission to Congress and the Comptroller General

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added

by the Small Business Regulatory Enforcement Fairness Act of 1996,

generally provides that before a rule may take effect, the agency

promulgating the rule must submit a rule report, which includes a copy

of the rule, to each House of the Congress and to the Comptroller

General of the United States. Section 808 allows the issuing agency to

make a rule effective sooner than otherwise provided by the CRA if the

agency makes a good cause finding that notice and public procedure is

impracticable, unnecessary, or contrary to public interest. This

determination must be supported by a brief statement, 5 U.S.C. 808(z).

As stated previously, EPA has made a good cause finding, including the

reasons therefor, and established an effective date of May 13, 1999,

the date of signature. The EPA will submit 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

prior to publication of the rule in the Federal Register. This action

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

H. Paperwork Reduction Act

This rule does not contain any information requirements which

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 Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by August 2, 1999. 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,

Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

Authority: 42 U.S.C. 7401 et seq.

Dated: May 13, 1999.

Gregg A. Cooke,

Regional Administrator, Region 6.

[FR Doc. 99-13806 Filed 6-1-99; 8:45 am]

BILLING CODE 6560-50-P