Approval and Promulgation of Implementation Plans; Phoenix, Arizona Ozone Nonattainment Area, Revision to the 15 Percent Rate of Progress Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ-005-ROP; FRL-6315-6]

Approval and Promulgation of Implementation Plans; Phoenix,

Arizona Ozone Nonattainment Area, Revision to the 15 Percent Rate of

Progress Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing minor changes to its 1998 15 percent rate of

progress federal implementation plan (1998 FIP) for the metropolitan

Phoenix (Arizona) ozone nonattainment area. The 1998 FIP contains a

demonstration that the Phoenix metropolitan area has in place

sufficient measures to meet the 15 percent rate of progress (ROP)

requirement in the Clean Air Act. We are proposing changes to the

control strategy for the 15 percent ROP demonstration. The proposed

changes delete or add to the control strategy measures that have

already been adopted in the Phoenix area; we are not proposing any new

emission control regulations. This proposal does not alter our basic

conclusion in the 1998 FIP that the Phoenix metropolitan area will meet

the 15 percent ROP requirement as soon as practicable. We also discuss

our policies on the contingency measures required by the Clean Air Act

for the Phoenix ozone nonattainment area. Finally, we are proposing to

revise the transportation conformity budget set in the 1998 FIP.

DATES: Comments on this proposal must be received in writing by April

26, 1999. Please address your written comments to the contact listed

below. You may also request the opportunity to submit oral comments as

allowed under Clean Air Act section 307(d)(5). EPA must receive your

request for a public hearing by April 5, 1999. If we schedule a

hearing, the record will remain open for 30 days after the hearing for

submission of supplemental or rebuttal information only.

ADDRESSES: Written comments and requests for public hearing should be

addressed to Frances Wicher at the EPA Region 9 address below.

EPA has placed copies of the draft technical support document (TSD)

and other documents relied on for this proposal in a docket. You may

inspect this docket during normal business hours at the following

locations and may request copies of any document contained in the

docket. A reasonable fee may be charged for any requested copies.

U.S. Environmental Protection Agency, Region 9, Office of Air Planning,

Air Division, 17th Floor, 75 Hawthorne Street, San Francisco,

California 94105, (415) 744-1248.

Arizona Department of Environmental Quality, Office of Outreach and

Information, First Floor, 3033 N. Central Avenue, Phoenix, Arizona

85012. (602) 207-2217.

We have also posted copies of this proposal, the draft TSD, and

EPA's 1998 plan and its TSD in the air programs section of EPA Region

9's website, www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning

(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne

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

[email protected].

SUPPLEMENTARY INFORMATION:

I. Purpose

What Is EPA Proposing in This Action?

EPA is proposing minor changes to its 1998 15 percent rate of

progress federal implementation plan (1998 15 percent ROP FIP or 1998

FIP) for the metropolitan Phoenix (Arizona) ozone nonattainment area.

We published the 1998 FIP in the Federal Register on May 27, 1998 at 63

FR 28898 (Reference 1). The 1998 FIP contains a demonstration that the

Phoenix metropolitan area has in place or will have in place sufficient

measures to meet the 15 percent rate of progress (ROP) requirement in

section 182(b)(1) of the Clean Air Act (CAA) as soon as practicable.

For the complete background to our 1998 FIP, please see section I.B. of

the technical support document (TSD) for the 1998 FIP (Reference 2).

In this action, we are specifically proposing to change the control

strategy (that is, the list of control measures) that makes up the 15

percent ROP demonstration for the Phoenix area by deleting the National

Architectural Coatings Rule and adding Arizona's Clean Burning Gasoline

(CBG) program. Neither of these proposed changes will affect our basic

conclusion in the 1998 15 percent ROP FIP that the Phoenix metropolitan

area has in place sufficient measures to meet the 15 percent rate of

progress requirement in CAA section 182(b)(1) as soon as practicable.

We are proposing these changes under our federal planning authority in

CAA section 110(c).

Later in this preamble, we will also discuss in more detail our

policies on the contingency measures required by CAA section 172(c)(9)

for most ozone nonattainment area plans.

Finally, we will describe our proposed revisions to the

transportation conformity budget set in the 1998 FIP.

Why Is EPA Proposing This Action?

In the 1998 15 percent ROP FIP, we included emission reductions

from three proposed national consumer and commercial product rules in

the ROP demonstration. Since the 1998 FIP was published, EPA has

finalized these rules. The final rules varied from the proposals in

ways that affected either the amount or timing of the emission

reductions that we assumed for them in the 15 percent ROP

demonstration. We stated in the 1998 FIP that if the final rules did

not result in all the emission reductions we expected, we would take

appropriate action to revise the plan. We are proposing the necessary

revisions in this document.

We are also taking this action to comply with the voluntary remand

that we requested and were granted from the Ninth Circuit Court of

Appeals in order to address two issues raised in a petition to review

the 1998 FIP. This petition, Aspegren v. Browner, No. 98-70824, asked

the court to review two aspects of the 1998 FIP and then require us to

take certain actions to revise the plan. The petitioners first asked

the court to require EPA to evaluate the effects of the final federal

rules on the Phoenix 15 percent ROP demonstration and to adopt any

additional rules needed to assure that the 15 percent ROP is met.

Second, the petitioners asked the court to require EPA to adopt and

include in the FIP contingency measures consistent with CAA section

172(c)(9) and EPA guidance. See page 22 of the petitioners' brief in

the case (Reference 3).

We have, therefore, reviewed the effect of the final federal rules

on the 15 percent ROP demonstration in the 1998 FIP and are proposing

changes to the control strategy. We are also responding to the

petitioners' arguments regarding the Clean Air Act and our guidance

requirements for contingency measures.

II. Background on the 15 Percent ROP FIP for Phoenix

What Is the CAA 15 Percent Rate of Progress Requirement?

Clean Air Act section 182(b)(1) requires each ozone nonattainment

area with a classification of moderate or above to develop a plan to

reduce volatile organic compounds (VOC) emissions (a contributor to

ozone) in the area by 15 percent from 1990 levels. This plan is

referred to as the 15 percent

[[Page 14660]]

rate of progress plan or the 15 percent ROP plan. The 15 percent ROP

requirement applies only to areas that are not meeting the one-hour

national ozone ambient air quality standard.

In 1991, we classified the Phoenix ozone nonattainment area as

moderate and in 1997 reclassified the area to serious. Therefore the

Phoenix area must meet the 15 percent ROP requirement.

For an area to show that it meets the 15 percent ROP requirement,

it must show that future emissions in the area will be equal to or less

than a target level of emissions that meets the 15 percent reduction.

CAA section 182(b)(1) has detailed instructions and several

restrictions for calculating the required target level.

We calculated the 15 percent ROP target for the Phoenix area in the

1998 FIP. This calculation is documented in sections II.B. and III.B.

in the Technical Support Document (TSD) for the 1998 FIP (Reference 2).

The target level for the Phoenix area is not affected by the changes we

are proposing to the control strategy and remains the same as in the

1998 FIP.

The Clean Air Act requires ozone nonattainment areas to show the 15

percent ROP by November 15, 1996. Even though that date has passed, the

Act's 15 percent ROP requirement still applies to the Phoenix area.

However, because the date has passed, in order to show that the Phoenix

area meets the 15 percent ROP requirement, we now have to show that the

15 percent ROP will be met ``as soon as practicable.'' In summary, this

means that we have to show the plan includes all available measures

that could meaningfully advance when the 15 percent ROP is met in

Phoenix. For a more detailed description of the ``as soon as

practicable'' requirement for 15 percent ROP, please see page 3687 of

the proposal for the 1998 FIP (Reference 4).

What Is in the 1998 15 Percent ROP FIP?

The 1998 FIP included our demonstration that the Phoenix area would

have sufficient controls in place to meet the 15 percent rate of

progress requirement for the Phoenix area by no later than April 1,

1999. The FIP also showed that April 1, 1999 is the earliest date by

which the 15 percent reduction could be met considering the

availability of practicable measures for the Phoenix area. See page

3689 in the proposal for the 1998 FIP (Reference 4).

In the demonstration, we relied on a set of promulgated and

proposed federal measures as well as numerous State measures that we

had previously approved. These measures and their expected emission

reductions are identified in Table 5 of the proposed FIP, see page 3690

in the proposal for the 1998 FIP (Reference 4).

The proposed federal rules that we included in the 15 percent ROP

demonstration are three rules that reduce emissions from certain

consumer and commercial products: (1) architectural coatings (e.g.,

paints, stains, and finishes), (2) automobile refinish coatings, and

(3) consumer products (e.g., household cleaning products, personal

grooming products). At the time we issued the 1998 15 percent ROP FIP

in May 1998, we had proposed these rules and were required by a court

order to finalize them by mid-August 1998. We had been developing these

rules for several years and had issued guidance memoranda allowing

states to take a specified emission reduction credit for each measure

in their 15 percent plans. For a further discussion of these measures

and the credit allowed for them, see page 3691 in the proposal for the

1998 FIP (Reference 4).

The 1998 15 percent ROP FIP also included a ``as soon as

practicable'' analysis which showed that the applicable implementation

plan contains all VOC control measures that are practicable for the

Phoenix area and that meaningfully accelerate the date by which the 15

percent level is achieved. For the 1998 FIP, we defined ``to

meaningfully accelerate the date by which the 15 percent is

demonstrated'' to mean to advance the demonstration date by three or

more months. For a more detailed description of how we applied the ``as

soon as practicable'' requirement in the 1998 15 percent ROP FIP,

please see page 3691 in the proposal for the 1998 FIP (Reference 4).

III. Proposed Changes to the 1998 15 Percent ROP FIP

How Did the Changes to the Final National Rules Affect the Emission

Reductions Included in the 1998 FIP?

In the FIP, EPA estimated that the proposed national rules would

reduce emissions in the Phoenix area by 4.5 metric tons per day (mtpd)

by April 1, 1999.

The final rules were published in the Federal Register on September

11, 1998. We made changes to the final rules in response to public

comments that we received on the proposals. Most of the changes had no

effect on the expected emission reductions from the rules. A few

changes, however, did reduce slightly the emission reductions expected

from the autobody coatings rule and delayed all or some of the emission

reductions from the other two rules beyond April 1, 1999. See section

II.B. in the draft TSD for this proposal (Reference 5).

Table 1 presents the effects of these rule changes on the

anticipated emission reductions in the 1998 15 percent ROP FIP. In

total, the rule changes reduce emission reductions creditable by April

1, 1999 from the national rules by 1.3 mtpd. For the detailed analysis

of these changes, see section II.B. in draft TSD for this proposal

(Reference 5).

Table 1.--Summary of Changes to Emission Reductions From National Rules for April 1, 1999

[Metric Tons per Day]

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Reductions Net loss in

Rule Change assumed in Reductions emission

1998 FIP from rules reductions

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

Architectural Coatings (most limits Delay in effective date to 9/11/ 0.6 0 -0.6

effective 9/11/99). 99.

Automobile Refinish Coatings (most Reduction in effectiveness from 1.4 1.2 -0.2

limits effective 1/11/99). 37% to 33%.

Consumer Products (most limits effective Delay in effective date for 2.5 2 -0.5

12/10/98). pesticides until 12/10/99.

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Total............................... ................................ 4.5 3.2 -1.3

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[[Page 14661]]

What Effect Do These Changes in Emission Reductions Have on the 15

Percent ROP Demonstration in the 1998 FIP?

Because the federal measures are slightly less effective than we

originally assumed, total emissions in the Phoenix area will be 1.3

mtpd higher than we expected in the 1998 FIP. We originally projected

that the Phoenix area would meet the 15 percent ROP target emissions

level on April 1, 1999 with 0.3 mtpd to spare. Increasing total

emissions in the area by 1.3 mtpd will mean that instead of

demonstrating the 15 percent ROP on April 1, 1999 with a small cushion

of excess emission reductions, the area will be 1.0 mtpd short of its

15 percent ROP target level on that date.

How Is EPA Proposing To Revise the 1998 FIP To Account for the Changes

to the National Rules?

We are proposing to revise the control strategy in the 1998 FIP to

assure that the 15 percent ROP continues to be demonstrated as soon as

practicable in the Phoenix area. We are proposing to revise the control

strategy by deleting the National Architectural Coatings Rule and

adding, in its place, Arizona's Clean Burning Gasoline (CBG) program.

We are proposing to delete the National Architectural Coatings Rule

because emissions from this rule will no longer be relied on in the

Phoenix 15 percent ROP demonstration. Emissions reductions from this

rule will not occur until September 11, 1999, well after the date the

15 percent ROP will be met in the Phoenix area. We are proposing to add

Arizona's CBG rule to the control strategy to make up the emission

reductions lost or delayed from the national rules.

Table 2 lists the measures in the proposed revised control

strategy.

Table 2.--Proposed Revised Control Strategy for the 1998 15 Percent Plan ROP FIP for the Metropolitan Phoenix

Ozone Nonattainment Area

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Adjusted

1996

Category Approval status reduction

(mtVOC/d)

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

Arizona Vehicle Emissions Inspection Program.............. Approved 60 FR 22518 (May 8, 1995).... 3.3

Arizona Summertime Gasoline Volatility Limitation (7.00 Approved 62 FR 31734 (June 11, 1997).. 13

psi RVP) (on-road and nonroad).

Federal RFG--Phase I (on-road and nonroad)................ Approved June 3, 1997 (62 FR 30260)... 6

National Phase I Non-Road Engines Standards............... Promulgated July 3, 1995 (60 FR 34582) 9.1

MCESD Rules 331, 336, 337, 342, 346, and 351.............. Approval signed 1/20/97............... 11.3

Stage II vapor recovery................................... Approved 11/1/94 (59 FR 54521)........ 9.8

MCESD Rule 335 Architectural coatings..................... Approved 1/6/92 (57 FR 354)........... 2.9

Autobody refinishing (national rule)...................... Promulgated September 11, 1998 (63 FR 1.2

48806).

Consumer products (national rule)......................... Promulgated September 11, 1998 (63 FR 2

48819).

Additional Increment for CBG (partial credit)............. Approved 2/10/98 (63 FR 6653)......... 2

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

On February 10, 1998, EPA approved into the Arizona state

implementation plan, the State's Cleaner Burning Gasoline (CBG) program

for the Phoenix nonattainment area. 63 FR 6653. The CBG program

requires gasoline to be reformulated to reduce emissions of VOCs from

automobiles. The program is being implemented in two stages. From June

to September of 1998, gasoline sold in the Phoenix area had to meet

standards similar to the federal phase I reformulated gasoline (RFG)

program or California's Phase II RFG program. California Phase II RFG

is generally considered to reduce emissions more in the Phoenix area

than federal RFG. Starting May 1, 1999, gasoline sold in the Phoenix

area has to meet standards similar to EPA's Phase II RFG program or

California's Phase II RFG program.

The switch from a fuel similar to federal phase I RFG to a fuel

similar to federal phase II RFG will result in additional emissions

reductions of 2.0 mtpd from Phoenix on-road motor vehicles as of May 1,

1999. Please see, section III.A. and Appendix A of the draft TSD for

this proposal (Reference 5) for the complete documentation of this

emissions reduction.

How Does This Proposed Revision Affect When the 15 Percent ROP Will Be

Demonstrated in the Phoenix Area?

We concluded in the 1998 FIP that the Phoenix metropolitan area has

in place sufficient measures to meet the 15 percent rate of progress

requirement as soon as practicable (ASAP) and that there were no other

measures for the Phoenix area that could meaningfully advance the date

by which the 15 percent ROP was demonstrated. We estimated the ``as

soon as practicable'' demonstration date to be April 1, 1999. See page

3689 of the proposal for the 1998 FIP (Reference 4).

The second stage of the Arizona CBG program will not produce the

additional 2.0 mtpd reduction until it begins on May 1, 1999. The 15

percent ROP target level on May 1, 1999 is 231.2 mtpd. Total Phoenix-

area VOC emissions on May 1, 1999 before reductions from the CBG

program are factored in will be 232.0 mtpd, 0.8 mtpd above the target

level. When the 2-ton reduction from the CBG program is factored in,

total emissions in the Phoenix area will be 230.0 mtpd, well below the

231.2 mtpd target level. See section III.A. in the draft TSD for this

proposal (Reference 5). Therefore, our proposal to revise the 1998 FIP

to replace the lost reductions from the federal rules with reductions

from the CBG rule will cause the date on which the 15 percent ROP is

demonstrated in the Phoenix area to move from April 1, 1999 to the CBG

stage II start date of May 1, 1999.

Will the 15 Percent ROP Goal Still Be Achieved as Soon as Practicable?

Because the demonstration date is later, we must re-evaluate the

basic conclusion in the 1998 FIP that sufficient creditable measures

are in place in the Phoenix area to assure that the 15 percent ROP goal

will be met as soon as practicable.

The revised demonstration date is less than 2 months away. This

time period is so short that we can not complete this rulemaking prior

to May 1, 1999 and still provide an adequate period for the public to

comment and then for sources

[[Page 14662]]

to comply with any new rules. We are, therefore, proposing to conclude

that the Phoenix metropolitan area has in place sufficient measures to

meet the 15 percent rate of progress requirement as soon as practicable

and that there were no other measures available for the Phoenix area

that could meaningfully advance the date by which the 15 percent ROP is

demonstrated.

IV. CAA Section 172(C)(9) Contingency Measures

What Are the Clean Air Act's Requirements for Contingency Measures?

Section 172(c)(9) of the Clean Air Act requires that states submit

contingency measures for their ozone nonattainment areas that will be

implemented if their nonattainment plans fail to meet a ROP goal or to

attain the national ozone standard by the required attainment date. The

Act also requires that a state be able to implement its selected

contingency measures without taking any further actions. We have

discussed the Act's requirements for the section 172(c)(9) contingency

measures and their role in nonattainment plans in more detail in

section IV of the draft TSD for this proposal (Reference 5).

Other sections of the Act require contingency measures for other

specific potential failures such as a failure of a serious or above

ozone nonattainment area to meet a ROP goal (see section 182(c)(9)). We

are not concerned here with these other requirements because they did

not apply to the Phoenix area at the time its 15 percent ROP plan was

due.

What Is EPA's Guidance for the Section 172(c)(9) Contingency Measures

in Ozone Nonattainment Areas?

The Clean Air Act does not say how many contingency measures are

required, what emission reductions they must achieve, or when a state

must submit them. To fill this gap in the Act, we addressed these

issues in our guidance documents.

For ozone nonattainment areas, we established guidelines that

contingency measures should presumptively provide a VOC emission

reduction of 3 percent of 1990 levels. We reason that the contingency

measures should ensure an appropriate rate of progress in reducing

emissions while a state revised its nonattainment plan following a

failure to meet a ROP goal or to attain. We consider 3 percent an

appropriate reduction because it is the annual rate of progress

required by the Act after 1996. See pages 13510-13511 of our General

Preamble for the Implementation of Title I of the Clean Air Act

Amendments of 1990 (the General Preamble) (Reference 6).

We also set the submittal date for the contingency measures as not

later than November 15, 1993. We used our general authority in CAA

section 172(b) to set this date. Section 172(b) allows us to establish

submittal dates where the Act does not provide a specific date;

however, the section limits how long we can give a state to submit a

required element of a nonattainment plan. This limit in section 172(b)

meant that we could have set a date earlier than, but not any later

than November 15, 1993 for submittal of the section 172(c)(9)

contingency measures. We decided that November 15, 1993 was the

appropriate submittal date for the section 172(c)(9) contingency

measures ``since States must demonstrate attainment of the 15 percent

milestone at this time.'' See page 13511 of the General Preamble

(Reference 6).

Are the 172(c)(9) Contingency Measures a Required Part of 15 Percent

ROP Plans?

The commenter on the 1998 FIP proposal read the Clean Air Act and

EPA guidance to require contingency measures as a necessary part of a

complete 15 percent ROP plan submittal. The commenter also stated his

position that we could not act on a 15 percent ROP plan without

concurrently acting on contingency measures. The commenter provided no

discussion or references in support of his position. See comment letter

from the Arizona Center for Law in the Public Interest (ACLPI)

(Reference 7).

The Aspegren petitioners, in seeking review of our 1998 FIP, also

relied on this reading to request the court to order us to include

contingency measures in the 1998 15 percent ROP FIP. The petitioners,

however, provided an extended argument for their position. The

commenter's and petitioners' reading of the Act and our guidance is

incorrect.

The Clean Air Act requires states to submit nonattainment plans

that consist of numerous individual items that work together to provide

progress toward and attainment of an air quality standard in a

nonattainment area. While the various plan items may (and occasionally

need to) refer to and/or depend on each other, each has its own unique

Clean Air Act mandate and approval criteria and, therefore, each is a

separate and distinct element of a nonattainment plan.

One of these individual plan items is contingency measures; another

is a 15 percent ROP demonstration. The Act does not require that each

individual element of a nonattainment plan, such as the 15 percent ROP

demonstration, contain contingency measures. The Act's structure also

allows us to approve or disapprove contingency measures independently

from our actions on the 15 percent ROP plan.

Our guidance also does not treat the section 172(c)(9) contingency

measures as a necessary part of a complete and approvable 15 percent

ROP plan. As we discussed above, we could have set a due date for the

contingency measures that was earlier than the one set in the CAA for

the 15 percent ROP plans. The fact that we elected to require

contingency measures to be submitted on the same date the CAA required

submittal of the 15 percent ROP plans does not mean that one of these

items is a subpart of the other.

The Aspegren petitioners point to two EPA guidance documents to

support their reading. The first of these guidance documents is the

General Preamble (Reference 6) which gives our preliminary

interpretation of the Clean Air Act's requirements for nonattainment

areas. The second is Guidance for Growth Factors, Projections, and

Control Strategies for the 15 Percent Rate of Progress Plans (Reference

8) which provides detailed technical guidance on preparing 15 percent

ROP demonstrations and certain other Clean Air Act requirements.

The petitioners list a total of four statements in these two

guidance document which they interpret to require contingency measures

in 15 percent ROP plans. Two of these statements simply give our

rationale for selecting the November 15, 1993 submittal date for the

contingency measures. We discussed this rationale above.

The other two statements use the term ``15 percent rate-of-progress

plans'' as a compact reference to all the multiple submittals due at

the same time as the 15 percent ROP plans. Along with the 15 percent

ROP plan submittal and the section 172(c)(9) contingency measures

submittal, states were also required to submit their attainment

demonstrations for moderate ozone areas, and the section 182(c)(9)

contingency measures for serious and above ozone nonattainment areas on

November 15, 1993.

EPA has issued numerous guidance documents in addition to the ones

cited by the petitioners that address the 15 percent ROP plans and the

other submittals that were also due November 15, 1993. None of these

documents states or even implies that the contingency measures are part

of 15 percent ROP plans. Please see the draft

[[Page 14663]]

TSD for this action (Reference 5) for a complete discussion of the

statements cited by the Aspegren petitioners, our other guidance

documents, and other documents cited by the petitioners. See also

section IV of the draft TSD for this proposal (Reference 5).

While the petitioners may dispute this interpretation of our

guidance documents, we believe as the Agency that wrote the documents,

we are best able to interpret them. See, e.g., Arkansas v. Oklahoma,

503 U.S. 91, 110, 112 (1992) and Thomas Jefferson Univ. v. Shalala, 512

U.S. 504, 512 (1994). We have consistently treated the section

172(c)(9) contingency measures as separate from the 15 percent ROP plan

not only in our numerous guidance documents but also in our application

of this guidance to rulemakings approving individual 15 percent plans

across the country. In these rulemakings, we have consistently

evaluated the approvability of the 15 percent plans without regard to

the presence, absence, or approvability of contingency measures. Some

of these rulemakings are listed in Appendix B to the draft TSD for this

proposal (Reference 5).

V. Proposed Transportation Conformity Budget

What Are Transportation Conformity and a Transportation Conformity

Budget?

Section 176(c) of the Clean Air Act requires that federally funded

or approved transportation actions in nonattainment areas ``conform''

to, that is support, the area's air quality plans. Conformity ensures

that federal transportation actions do not worsen an area's air quality

or interfere with its meeting the air quality standards.

One of the primary tests for conformity is to show that

transportation plans and improvement programs will not cause motor

vehicle emissions higher than the levels needed to make progress toward

and to meet the air quality standards. These motor vehicle emissions

levels are set in the area's air quality plans and are known as the

``transportation conformity budget.''

What Transportation Conformity Budget Is EPA Proposing?

We are proposing to establish a transportation conformity budget of

87.1 metric tons of VOC per average summer day. This proposed budget

has been calculated as described in section V of the draft TSD for this

proposal (Reference 5). It reflects all on-road mobile source control

measures that will be in place by May 1, 1999: the implementation of

Arizona's enhanced vehicle inspection program, the State's limitation

on the volatility of gasoline sold in the Phoenix area, and Phase II of

the State's Cleaner Burning Gasoline program.

This proposed budget will replace the 76.7 metric tons of VOC per

average summer day budget set in the 1998 FIP. See page 28903 of the

1998 FIP (Reference 1).

Why Is the Proposed Budget Higher Than the Budget in the 1998 FIP?

We erred in calculating the budget in the 1998 FIP. We are

proposing to correct that error here and to include the reductions from

the State CBG program in the budget.

We calculated total on-road motor vehicle emissions in the 1998 FIP

by multiplying the vehicle miles traveled in the Phoenix area in 1996

by motor vehicle emission factors for 1999. This calculation followed

our policies for demonstrating the 15 percent ROP after 1996 which

require that the ROP demonstration be based on 1996 activity levels and

the controls in the 15 percent ROP plan even if emission reductions

from those controls did not happen until after 1996. We then used the

resulting on-road motor vehicle emissions total as the emissions budget

for transportation conformity.

This budget number, however, is the product of 1996 travel levels

and 1999 control levels. The combination of travel levels from one year

and control levels from another year does not happen in reality and

therefore does not create real a emissions level against which the

conformity of a transportation plan can be judged. To create a real

emissions level for conformity that reflects the controls in the 15

percent ROP plan, the budget should be a product of travel and control

levels for the same year. Because the Act requires the 15 percent ROP

plan to address growth only through 1996, the appropriate year for

calculating the conformity budget in 15 percent ROP plans is 1996. The

proposed conformity budget is, therefore, a product of 1996 travel and

1996 control levels. These 1996 control levels however, account for all

the on-road motor vehicle controls in the proposed revisions to the 15

percent ROP FIP. Please see section V of the draft TSD for this

proposal (Reference 5) for the fuller discussion of the error and the

correction.

Consultation Process

Our transportation conformity rules require that we consult with

appropriate local, State and federal transportation agencies as well as

local and state air pollution control agencies before setting a final

transportation conformity budget. Therefore, between this proposal and

our final action, we will be consulting with these agencies on this

proposed transportation conformity budget and the methods and

assumption we used to calculate it.

VI. Conclusion

Under our authority in CAA section 110(c) and for the reasons

discussed above, EPA is proposing to determine that the Phoenix

metropolitan area has in place sufficient control measures to meet the

15 percent rate of progress requirement in CAA section 182(b)(1)(A) as

soon as practicable. This proposed determination is based on our

analysis of the effect of the final federal measures (which were

originally relied on in proposed form) on the 1998 15 percent ROP FIP

and the proposed addition of Arizona's Cleaner Burning Gasoline Program

and proposed deletion of the National Architectural Coatings Rule from

the control strategy for the 15 percent ROP demonstration. It is also

based on our reanalysis of the ``as soon as practicable'' demonstration

in that previous FIP.

EPA is also proposing to revise the transportation conformity

budget to 87.1 metric tons of VOC per average summer day.

VII. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866, (58 FR 51735; October 4, 1993), EPA

must determine whether the regulatory action is ``significant'' and

therefore subject to OMB review and the requirements of the Executive

Order. The Order defines ``significant regulatory action'' as one that

is likely to result in a rule that may: (1) Have an annual effect on

the economy of $100 million or more or adversely affect in a material

way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State, local, or

tribal governments or communities; (2) create a serious inconsistency

or otherwise interfere with an action taken or planned by another

agency; (3) materially alter the budgetary impact of entitlement,

grants, user fees, or loan programs or the rights and obligations of

recipients thereof; or (4) raise novel legal or policy issues arising

out of legal mandates, the President's priorities, or the principles

set forth in the Executive Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order

[[Page 14664]]

12866 and is therefore not subject to OMB review.

B. Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates Reform Act of 1995 requires

EPA to prepare a budgetary impact statement before promulgating a rule

that includes a Federal mandate that may result in expenditure of $100

million or more in any one year by state, local, and tribal

governments, in aggregate, or by the private sector. Section 203

requires EPA to establish a plan for obtaining input from and informing

any small governments that may be significantly or uniquely affected by

the rule. Section 205 requires that regulatory alternatives be

considered before promulgating a rule for which a budgetary impact

statement is prepared. EPA must select the least costly, most cost-

effective, or least burdensome alternative that achieves the rule's

objectives, unless there is an explanation why this alternative is not

selected or this alternative is inconsistent with law.

This proposed rule does not include a Federal mandate and will not

result in any expenditures by State, local, and tribal governments or

the private sector. Therefore, EPA has not prepared a budgetary impact

statement or specifically addressed the selection of the least costly,

most cost-effective, or least burdensome alternative. Because small

governments will not be significantly or uniquely affected by this

rule, EPA is not required to develop a plan with regard to small

governments.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) 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. This proposed rule will not have a significant impact on

a substantial number of small entities because it imply proposes a

revision to a demonstration based on previously established

requirements and contains no additional requirements applicable to

small entities. Therefore, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

This proposed rule contains no information requirements subject to

the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

E. Applicability of Executive Order 13045: Children's Health Protection

This rule is not subject to E.O. 13045, entitled Protection of

Children from Environmental Health Risks and Safety Risks (62 FR 19885,

April 23, 1997), because it is not economically significant under E.O.

12866 and it does not involve decisions on environmental health risks

or safety risks that may disproportionately affect children.

F. Executive Order 12875: Enhancing Intergovernmental Partnerships

Under Executive Order 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, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget 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, Executive Order 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.''

This proposal will not create a mandate on State, local or tribal

governments. The rule will not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

G. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 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 complied by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, 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, Executive Order 13084 requires EPA to develop

an effective process permitting elected and other representatives of

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

the development of regulatory policies on matters that significantly or

uniquely affect their communities.''

This proposal will neither create a mandate nor impose any

enforceable duties on tribal governments. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to this rule.

H. The National Technology Transfer and Advancement Act

The National Technology Transfer and Advancement Act of 1995

(NTTAA), section 12(d), Public Law 104-113, requires federal agencies

and departments to use technical standards that are developed or

adopted by voluntary consensus standards bodies, using such technical

standards as a means to carry out policy objectives or activities

determined by the agencies and departments. If use of such technical

standards is inconsistent with applicable law or otherwise impractical,

a federal agency or department may elect to use technical standards

that are not developed or adopted by voluntary consensus standards

bodies if the head of the agency or department transmits to the Office

of Management and Budget an explanation of the reasons for using such

standards.

This proposed rule does not include technical standards for

exposure limits; therefore, EPA is not considering the use of any

voluntary consensus standards.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental

relations, Ozone.

Dated: March 19, 1999.

Carol M. Browner,

Administrator.

References

1. 63 FR 28898-28904 (May 27, 1998); Approval and Promulgation

of Implementation Plans; Phoenix, Arizona Ozone Nonattainment Area,

15 Percent Rate of Progress Plan and 1990 Base Year Emission

Inventory; Final rule.

2. Air Division, U.S. EPA, Region 9, ``Final TSD for the Notice

of Final Rulemaking on

[[Page 14665]]

the Clean Air Act Section 182(b)(1) 15 Percent Rate of Progress

Requirement for the Phoenix Metropolitan Area,'' May 18, 1998.

3. Brief for the Petitioners, Carolyn Aspegren and David Matusow

vs. Carol Browner, Administrator, and U.S. EPA (No. 98-70824),

October 13, 1998.

4. 63 FR 3687-3693 (January 26, 1998); Approval and Promulgation

of Implementation Plans; Phoenix Arizona Ozone Nonattainment Area,

15 Percent Rate of Progress Plan and 1990 Base Year Emission

Inventory; Proposed rule.

5. Air Division, U.S. EPA, Region 9, ``Draft Addendum to the

Technical Support Document for the Notice of Final Rulemaking on the

Clean Air Act Section 182(b)(1) 15 Percent Rate of Progress

Requirement for the Phoenix Metropolitan Ozone Nonattainment Area,''

March 18, 1999.

6. 57 FR 13498 (April 16, 1992). State Implementation Plans;

General Preamble for the Implementation of Title I of the Clean Air

Act Amendments of 1990. General Preamble for future proposed

rulemakings.

7. Letter, David S. Baron, Assistant Director, ACLPI, to Frances

Wicher, EPA Region 9, February 24, 1998.

8. Guidance for Growth Factors, Projections, and Control

Strategies for the 15 Percent Rate of Progress Plans, Office of Air

Quality Planning and Standards, U.S. EPA. EPA-452/R-93-002, March

1993.

[FR Doc. 99-7336 Filed 3-25-99; 8:45 am]

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