63456 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

1The CAA prior to the 1990 Amendments

contained no statutory provision for contingency

procedures or measures. As a result of this absence,

EPA developed the guidance pursuant to which the

FIP was promulgated. 46 FR 7187 (January 22,

1981).

2Section 193 provides, in pertinent part:

No control requirement in effect, or required to

be adopted by an order, settlement agreement, or

plan in effect before the date of enactment of the

Clean Air Act Amendments of 1990 in any area

which is a nonattainment area for any air pollutant

may be modified after such enactment in any

manner unless the modification insures equivalent

or greater emission reductions of such air pollutant.

EPA did not advance in its motion an argument

concerning the effect of section 193 on any

subsequent replacement of the FIP contingency

procedures with approved state measures.

3Section 172(c)(9) requires SIPs to provide for the

implementation of specific measures to be

undertaken if the area fails to make reasonable

further progress (RFP) or attain the national ambient

air quality standard (NAAQS) by the applicable

attainment date.

4 In fact, ACLPI did not raise in its petition for

review any issues relating to EPA’s approval of the

contingency measures under section 110(a).

and April 21, 1997, containing

supporting SIP information.

[FR Doc. 97–31410 Filed 11–28–97; 8:45 am]

BILLING CODE 6560–50–F

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[AZ033–0007; FRL–5928–3]

Approval and Promulgation of

Implementation Plans; Arizona—

Maricopa County CO Nonattainment

Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This action constitutes EPA’s

response to the Ninth Circuit Court of

Appeals’ July 31, 1997 opinion in

DiSimone versus Browner, No. 96–

70974 (9th Cir. July 31, 1997). As a

result of the opinion, EPA is restoring

the contingency procedures in the

carbon monoxide (CO) federal

implementation plan (FIP) for the

Maricopa County, Arizona

nonattainment area (Phoenix) that it

promulgated in accordance with Agency

guidance issued prior to the 1990 Clean

Air Act Amendments (CAAA). EPA is

also withdrawing its approval of two

contingency measures submitted by the

State as revisions, pursuant to the 1990

CAAA, to the CO state implementation

plan (SIP) for Phoenix.

EFFECTIVE DATE: This action is effective

as of December 1, 1997.

FOR FURTHER INFORMATION CONTACT: Jan

Taradash, Office of Regional Counsel

(ORC–2), U.S. Environmental Protection

Agency, 75 Hawthorne Street, San

Francisco, California, 94105–3901, (415)

744–1335 or Sara Schneeberg, Office of

General Counsel, U.S. Environmental

Protection Agency, 401 M Street, S.W.,

Washington, D.C. 20460, (202) 260–

5145.

SUPPLEMENTARY INFORMATION:

I. Background

In March 1990, the United States

Court of Appeals for the Ninth Circuit

vacated EPA’s 1988 approval of the

State of Arizona’s SIP for the Phoenix

CO nonattainment area and directed the

Agency to promulgate a Federal

implementation plan (FIP) under

section 110(c) of the Clean Air Act

(CAA) that included contingency

procedures in accordance with its then

existing guidance.1 Delaney versus EPA,

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

November 1990, the 1990 Amendments

to the Clean Air Act (CAAA) were

enacted which comprehensively revised

the statute, including the provisions

dealing with nonattainment areas and

the deadlines and requirements for

achieving attainment. EPA then filed in

the Ninth Circuit a motion to recall the

Delaney mandate, arguing, in part, that

promulgation of the FIP under the preamended statute was inconsistent with

both the structure and substantive

provisions of the new law. EPA also

argued that section 193, the general

savings clause, of the 1990 Amendments

did not preserve the Agency’s preamendment FIP obligation.2 The Ninth

Circuit denied EPA’s motion without

opinion and EPA subsequently

promulgated the FIP contingency

procedures. 56 FR 5458 (Feb. 11, 1991).

In 1994 Arizona submitted to EPA

contingency measures (an enhanced

remote sensing program and a traffic

diversion measure) adopted to satisfy

the requirements of section 172(c)(9), a

new provision added to the CAA by the

1990 Amendments.3 In 1996, EPA

approved these State measures as

meeting the requirements of sections

110(a) and 172(c)(9) of the CAA and

withdrew the FIP contingency

procedures. 61 FR 51599 (Oct. 3, 1996).

The Arizona Center for Law in the

Public Interest (ACLPI) subsequently

filed a petition for review of this action

in the Ninth Circuit and the Court

issued its opinion on July 31, 1997.

DiSimone versus Browner, No. 96–

70974 (9th Cir. July 31, 1997).

In its petition, ACLPI challenged

EPA’s action on several grounds,

including that: (1) EPA violated section

193 by approving measures that did not

insure equivalent or greater emission

reductions than the FIP, and (2) the

contingency measures approved by EPA

did not comply with the requirements of

section 172(c)(9). On these grounds,

petitioners’ requested that the court

vacate EPA’s approval of the state’s

contingency measures and withdrawal

of the FIP contingency procedures, and

direct EPA to restore the FIP

contingency procedures.

In its opinion, the Court found that

EPA’s replacement of the court-ordered

federal contingency provisions with

state provisions under the new statutory

scheme violated the Delaney mandate.

Slip op. at 9023. The Court further

found that EPA was precluded from

litigating in DiSimone the issue of

whether the amended Act authorized

EPA’s withdrawal of the FIP

contingency procedures and approval of

the State’s contingency measures in

their place. Slip op. at 9025. To support

that conclusion, the Court reasoned that:

[T]he issue presented in EPA’s motion to

recall the mandate [in Delaney] and the issue

presented in this case [DiSimone] are indeed

identical. The arguments advanced by EPA in

both cases were that requiring the continued

adherence to pre-Amendment guidelines

would thwart Congressional intent and be

inconsistent with the reclassification scheme

introduced by the 1990 amendments. In

addition, both the motion to recall the

mandate and EPA’s brief in this case

addressed the General Savings Clause * * *

as not applicable to the court’s order in

Delaney. Slip op. at 9026.

The Court also stated that the 9th

Circuit panel denying EPA’s motion to

recall the mandate ‘‘decided against all

of the arguments presented in EPA’s

motion because such a determination

was necessary to deny the motion.’’ Slip

op. at 9027. The Court did not, however,

indicate what specific relief sought by

ACLPI it was granting. Instead, it merely

granted the petition ‘‘for the foregoing

reasons.’’ (Emphasis added). Slip op. at

9028.

Because of the Court’s exclusive

reliance on Delaney, the restoration of

the FIP contingency procedures is

clearly compelled by its granting of

ACLPI’s petition. As to the State’s

contingency measures, nowhere in the

opinion does the Court address the issue

of whether the State’s measures meet

the requirements of sections 110(a) and

172(c)(9) of the CAA.4 Thus there is no

indication as to whether EPA’s approval

of these measures could remain in place

in light of the restoration of the FIP.

However, throughout the opinion

there is evidence that the gravamen of

the Court’s objection to EPA’s action

was the substitution of the State’s

contingency measures for the FIP
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 63457

5For example: ‘‘We hold that EPA acted in

disobedience of an order of this court in

withdrawing the federal plan and approving a state

plan in its place.* * *’’ Slip op. at 9019; ‘‘Here, the

issue to be foreclosed is whether, in light of the

1990 amendments to the Clean Air Act, EPA was

permitted to approve a state implementation plan

in place of the federal plan ordered by the Delaney

panel.’’ Slip op. at 9025.

6 It should be noted that those measures no longer

serve a contingency function because they were

implemented when the Phoenix area was

automatically reclassified from a ‘‘moderate’’ to a

‘‘serious’’ CO nonattainment area upon EPA’s

finding that the area had failed to meet the statutory

attainment deadline of December 31, 1995. See 61

FR 39343 (July 29, 1996) and footnote 3. As a result

of the reclassification, the State is required to

submit a serious area SIP revision for Phoenix by

February 28, 1998 that includes new contingency

measures pursuant to CAA section 172(c)(9).

7For the full text of the FIP contingency

procedures, see 56 FR 5471–5472.

contingency procedures.5 Consequently

EPA has concluded that the Court

viewed the Agency’s withdrawal of the

FIP contingency procedures and

approval of the State’s contingency

measures as interdependent. Because

EPA does not intend to seek a rehearing

from the Ninth Circuit, the Agency

believes that, for the purpose of this

action, it has no choice but to withdraw

its approval of the State’s measures in

addition to restoring the FIP

contingency procedures.6

II. Final Actions

A. Rule

For the foregoing reasons, EPA is

taking final action to restore the federal

contingency procedures for the Phoenix

CO nonattainment area. Specifically, the

Agency is restoring the phrase ‘‘After

December 31, 1991 for the Maricopa CO

nonattainment area or’’ to the

contingency provisions at 56 FR 5471,

col. 2 (Feb. 11, 1990). EPA is also, for

the reasons discussed above,

withdrawing its approval of the State’s

contingency measures as meeting the

requirements of sections 110(a) and

172(c)(9) of the CAA.

At the time EPA approved the State’s

contingency measures and withdrew the

FIP contingency procedures, the Agency

also withdrew the list of highway

projects potentially subject to delay that

the Agency proposed on June 28, 1993

during the partial implementation of the

FIP at that time. 58 FR 34547.7 EPA is

today reaffirming the withdrawal of that

list because it is no longer current.

During any future implementation of the

FIP contingency procedures, EPA will

propose an updated list of projects

potentially subject to delay.

B. Effective Date and Notice and

Comment Under the Administrative

Procedures Act

Today’s action will be effective on

December 1, 1997. Under the

Administrative Procedures Act (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 an agency has good cause to

mandate an earlier effective date. In

today’s action, EPA is simply

implementing administratively a result

that the Ninth Circuit Court of Appeals

effectuated in its July 31, 1997 opinion

in DiSimone v. Browner. Therefore an

effective date prior to 30 days after the

date of publication is warranted.

Similarly, while this document

constitutes final agency action, EPA

finds good cause to forego prior notice

and comment under the APA, 5 U.S.C.

553(b). Notice and comment are

unnecessary because no EPA judgment

is involved in restoring the FIP

contingency procedures and

withdrawing the Agency’s approval of

the State’s contingency measures

pursuant to the Ninth Circuit’s opinion

in DiSimone.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

B. 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

under the good cause exception.

Because this action is exempt from such

requirements, as described above, it is

not subject to the RFA.

C. Unfunded Mandates

Under sections 202, 203 and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Mandates Act’’), 2

U.S.C. 1501–1571, 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 costeffective 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 this rule.

EPA’s withdrawal of its approval of

the State’s contingency measures does

not include a federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This action simply makes

requirements that the State is already

imposing no longer subject to federal

enforcement. Restoration of the FIP

contingency procedures puts back in

place federal requirements that existed

prior to their withdrawal by the Agency

in 1996. To the extent that this action

imposes any mandate on State, local,

tribal governments or the private sector,

EPA concludes that it would not result

in estimated costs of $100 million or

more. With regard to both actions, EPA

is simply implementing

administratively what the Ninth Circuit

effectuated in its July 31, 1997 opinion

in DiSimone v. Browner. Therefore EPA

has not prepared a budgetary impact

statement for this action.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) added by

the Small Business Regulatory

Enforcement Fairness Act of 1996, 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. 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 January 30, 1998.

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,

Incorporation by reference,

Intergovernmental relations.
63458 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

Dated: November 20, 1997.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, 40 CFR part 52 is amended as

follows:

PART 52 —[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart D—Arizona

§ 52.120 [Amended]

2. Section 52.120 is amended by

removing and reserving paragraphs

(c)(83) and (c)(85).

[FR Doc. 97–31278 Filed 11–28–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[FRL–5930–2]

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Removal of Final

Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is removing the final

rule appearing at 56 Federal Register

(FR) 67197 (December 30, 1991) insofar

as it excluded hazardous waste

treatment residue generated by

Reynolds Metals Company (Reynolds),

Gum Springs, Arkansas, from the lists of

hazardous wastes contained in 40 CFR

261.31 and 261.32 (hereinafter all

sectional references are to 40 CFR

unless otherwise indicated). This

decision to repeal the exclusion is based

on an evaluation of waste-specific

information provided by Reynolds and

obtained by EPA either independently

or from the Arkansas Department of

Pollution Control and Ecology

(ADPC&E) subsequent to the

promulgation of the exclusion. After the

effective date of this rule, future spent

potliner waste generated at Reynolds’

Gum Springs, Arkansas, facility will no

longer be excluded from the

requirements of hazardous waste

regulations under the Resource

Conservation and Recovery Act (RCRA)

and must be handled as hazardous

waste in accordance with sections 260

through 266, 268 and 273 as well as any

applicable permitting standards of

section 270. This rule does not remove

or affect EPA’s reasoning or evaluation

as it related to the modified EPA

Composite Model for Landfills

(EPACML).

EFFECTIVE DATE: December 1, 1997.

ADDRESSES: The public docket for this

final rule is located at the

Environmental Protection Agency,

Region 6, 1445 Ross Avenue, Dallas,

Texas 75202, and is available for

viewing in the EPA Review Room on the

7th floor from 9 a.m. to 4 p.m., Monday

through Friday, excluding Federal

holidays. Call (214) 665–6775 for

appointments. The reference number for

this docket is ‘‘F–97–ARDEL–

REYNOLDS.’’ The docket may also be

viewed at the Arkansas Department of

Pollution Control and Ecology, 8001

National Drive, Little Rock, Arkansas

72209. The public may copy material

from any regulatory docket at no cost for

the first 100 pages, and at $0.15 per page

for additional copies.

FOR FURTHER INFORMATION, CONTACT: For

general and technical information

concerning this notice, contact William

Gallagher, Delisting Program (6PD–O),

Region 6, Environmental Protection

Agency, 1445 Ross Avenue, Dallas,

Texas 75202, (214) 665–6775.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority for ‘‘Delisting’’

Under 40 CFR 260.20 and 260.22,

facilities may petition EPA to remove

their wastes from hazardous waste

control by excluding them from the lists

of hazardous wastes contained in

sections 261.31 and 261.32. Specifically,

section 260.20 allows any person to

petition the Administrator to modify or

revoke any provision of parts 260

through 265 and 268 of Title 40 of the

Code of Federal Regulations (CFR); and

section 260.22 provides generators the

opportunity to petition the

Administrator to exclude a waste on a

‘‘generator-specific’’ basis from the

hazardous waste lists. Petitioners must

provide sufficient information to EPA to

allow EPA to determine that the waste

to be excluded does not meet any of the

criteria under which the waste was

listed as a hazardous waste. In addition,

the Administrator must determine,

where she has a reasonable basis to

believe that factors (including

additional constituents) other than those

for which the waste was listed could

cause the waste to be a hazardous waste,

that such factors do not warrant

retaining the waste as a hazardous

waste.

B. History of This Rulemaking

Reynolds was granted a final

exclusion for K088 waste treatment

residues on December 30, 1991 (see 56

FR 67197). In that rule, EPA also

addressed the modified EPACML. The

EPA believes its statements contained in

that rule related to the EPACML remain

accurate. Today’s action is not intended

to repeal or otherwise affect EPA’s

adoption or use of that model.

After evaluation of new data, EPA

proposed, on July 31, 1997, repeal of the

final rule issued December 30, 1991 (see

62 FR 41005). This rulemaking

addresses public comments received on

the proposal and finalizes the proposed

decision to repeal the Reynolds

exclusion.

C. Subsequent Events

Under the RCRA Land Disposal

Restrictions (LDR) Program certain

hazardous wastes cannot be land

disposed until they satisfy treatment

standards promulgated by EPA (RCRA

sections 3004 (d)–(g)). On April 8, 1996,

EPA prohibited land disposal, of and

established treatment standards for,

spent potliners from aluminum

production (K088 hazardous wastes, 61

FR 15566, April 8, 1996). At that time

(and still today), Reynolds has the only

commercially available treatment

facility that is capable of meeting those

LDR treatment standards. However, as

discussed below in section II., EPA had

concerns about concentrations of certain

hazardous constituents in the leachate

from Reynolds treatment process

residue, especially because such

treatment residues had been delisted

and were being disposed in units which

were not subject to RCRA subtitle C

standards [62 FR 1994–62 FR 1995

(January 14, 1997)]. The EPA initially

extended the national capacity variance

until July 8, 1997. At that time, after

reexamination, the Agency found that

Reynolds was providing treatment and

disposal capacity which is protective of

human health and the environment

(RCRA section 3004(h)(2)), and

accordingly found that there is adequate

treatment capacity for K088 wastes. [62

FR 37694 (July 14, 1997)]. The national

capacity variance was further extended

three months to allow generators to

make necessary logistic arrangements

(Id. at 37694).

The Agencys decision rested upon

two principal factors. Reynolds process

destroys most of the most hazardous

constituent in K088 wastes—cyanide—

immobilizes most of the toxic metals,

and destroys all polycyclic aromatic

hydrocarbons (62 FR 37694, 62 FR

37696). In addition, Reynolds disposal