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Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60001

VII. Executive Order 12866

Under Executive Order 12866, 4 the

Agency must determine whether a

regulation 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 of

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 entitlements, 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 this Executive Order. 5

It has been determined that this rule

is not a "significant regulatory action"

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

VIII. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

("UMRA"), Public Law 104-4, EPA

must prepare a budgetary impact

statement to accompany any general

notice of proposed rulemaking or final

rule that includes a federal mandate

which 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, for any rule subject to Section 202

EPA generally must select the least

costly, most cost-effective, or least

burdensome alternative that achieves

the objectives of the rule and is

consistent with statutory requirements.

Under Section 203, before establishing

any regulatory requirements that may

significantly or uniquely affect small

governments, EPA must take steps to

inform and advise small governments of

the requirements and enable them to

provide input.

EPA has determined that the final rule

promulgated today does not include a

federal mandate as defined in UMRA.

The rule does not include a federal

mandate that may result in estimated

annual costs to State, local or tribal

governments in the aggregate, or to the

458 FR 51736 (October 4, 1993). 5

1Id. at section 3(f)(1) (4).

private sector, of $100 million or more,

and it does not establish regulatory

requirements that may significantly or

uniquely affect small governments.

IX. Paperwork Reduction Act

The action in today's notice does not

impose any new information collection

burden. Implementation of this action

would eliminate the existing

requirement that product transfer

documents (PTDs) for gasoline must

identify the oxygenates present. No new

information collection requirements

would result from the implementation

of the regulatory amendment which is

the subject of this action. To the

contrary, its implementation would

eliminate a compliance burden from the

majority of regulated parties.

The Office of Management and Budget

(OMB) has previously approved the

information collection requirements of

the Regulation of Deposit Control

Additives contained in 40 CFR Part 80

under the provisions of the Paperwork

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

and has assigned OMB control number

2060-0275 (EPA ICR Numbers 1655-01,

1655-02, and 1655-03).

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

Copies of the ICR documents may be

obtained from Sandy Farmer,

Information Policy Branch; EPA; 401 M

St., SW. (mail code 2136); Washington,

DC 20460 or by calling (202) 260-2740.

Include the ICR and/or OMB number in

any correspondence.

X. Submission to Congress and the

General Accounting Office

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

XI. Statutory Authority

The statutory authority for the

proposed action in this rule is granted

to EPA by sections 114, 211(a), (b), (c),

and (1), and 301 of the Clean Air Act as

amended: 42 U.S.C. 7414, 7545(a), (b),

(c) and (1), and 7601.

List of Subjects in 40 CFR Part 80

Environmental protection, Fuel

additives, Gasoline detergent additives,

Gasoline, Motor vehicle pollution,

Penalties, Reporting and recordkeeping

requirements.

Dated: October 30, 1997.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, part 80 of title 40 of the Code

of Federal Regulations is amended as

follows:

PART 80-[AMENDED]

1. The authority citation for part 80

continues to read as follows:

Authority: Sections 114, 211 and 301(a) of

the Clean Air Act as amended (42 U.S.C.

7414, 7545, and 7601(a)).

§80.158 [Amended]

2. Section 80.158(a) is amended as

follows:

a. Paragraph (a)(5) is removed.

b. Paragraphs (a)(6) through (a)(10) are

redesignated as paragraphs (a)(5)

through (a)(9).

§80.171 [Amended]

3. Section 80.171(a) is amended as

follows:

a. Paragraph (a)(5) is removed.

b. Paragraphs (a)(6) through (12) are

redesignated as paragraphs (a)(5)

through (a)(11).

[FR Doc. 97 29391 Filed 11 5 97; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[AZ-001-BU; FRL-5917-4]

Clean Air Act Reclassification;

Arizona-Phoenix Nonattainment Area;

Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finding that the

Phoenix nonattainment area (Maricopa
No. 215 / Thursday, November 6, 1997 / Rules and Regulations

County, Arizona) has not attained the 1-

hour ozone national ambient air quality

standard (NAAQS) by the applicable

attainment date in the Clean Air Act

(CAA) for moderate ozone

nonattainment areas, November 15,

1996. EPA is also denying Arizona's

application for a one-year extension of

the November 15, 1996 attainment date

for the Phoenix area. The finding and

denial are based on EPA's review of

monitored air quality data from 1994

through 1996 for compliance with the 1-

hour ozone NAAQS. As a result of the

finding and denial, the Phoenix ozone

nonattainment area will be reclassified

by operation of law as a serious ozone

nonattainment area on the effective date

of this action. The effect of the

reclassification will be to continue

progress toward attainment of the 1-

hour ozone NAAQS through the

development of a new State

implementation plan (SIP), due 12

months from the effective date of this

action, addressing attainment of that

standard by November 15, 1999.

EFFECTIVE DATE: December 8, 1997.

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, Office of Air Planning,

AIR-2, Air Division, U.S.

Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San

Francisco, California 94105, (415) 744-

1248.

SUPPLEMENTARY INFORMATION:

I. Background

Under sections 107(d)(1)(C) and

181(a) of the Clean Air Act (CAA), the

Phoenix metropolitan area was

designated nonattainment for the 1-hour

ozone NAAQS and classified as "moderate." See 56 FR 56694

(November 6, 1991). Moderate

nonattainment areas were required to

show attainment by November 15, 1996.

CAA section 181(a)(1).

Pursuant to section 181(b)(2)(A) of the

CAA, EPA has the responsibility for

determining, within six months of an

area's applicable attainment date,

whether the area has attained the 1-hour

ozone NAAQS. I Under section

181(b)(2)(A), if EPA finds that an area

has not attained the 1-hour ozone

1 On July 18, 1997 (62 FR 38856), EPA revised the

ozone NAAQS to establish a 8-hour standard;

however, in order to ensure an effective transition

to the new 8-hour standard, EPA also retained the

1-hour NAAQS for an area until such time as it

determines that the area meets the 1-hour standard.

See revised 40 CFR 50.9 at 62 FR 38894. As a result

of retaining the 1-hour standard, CAA part D,

subpart 2, Additional Provisions for Ozone

Nonattainment Areas, including the reclassification

provisions of section 181(b), remain applicable to areas that are not attaining the 1-hour standard.

Unless otherwise indicated, all references in this

notice are to the 1-hour ozone NAAQS.

NAAQS, it is reclassified by operation

of law to the higher of the next higher

classification or to the classification

applicable to the area's design value at

the time of the finding. CAA section

181(b)(2)(B) of the Act requires EPA to

publish a notice in the Federal Register

identifying areas which failed to attain

the standard and therefore must be

reclassified by operation of law.

If a state does not have the clean data

necessary to show attainment of the

NAAQS, it may apply, under CAA

section 181(a)(5) of the CAA, for a oneyear attainment date extension. Issuance

of an extension is discretionary, but

EPA can exercise that discretion only if

the state has: (1) complied with the

requirements and commitments

pertaining to the applicable

implementation plan for the area, and

(2) the area has measured no more than

one exceedance of the ozone NAAQS at

any monitoring site in the

nonattainment area in the year

preceding the extension year.

A complete discussion of the statutory

provisions and EPA policies governing

findings of whether an area failed to

attain the ozone NAAQS and extensions

of the attainment date can be found in

the proposal for this action at 62 FR

46229 (September 2, 1997).

II. Proposed Action

On September 2, 1997, EPA proposed

to find that the Phoenix ozone

nonattainment area failed to attain the

1-hour ozone NAAQS by the applicable

attainment date. 62 FR 46229. The

proposed finding was based upon

ambient air quality data from the years

1994, 1995, and 1996. These data

showed that the 1-hour ozone NAAQS

of 0.12 parts per million had been

exceeded on average more than one day

per year over this three-year period.

Attainment of the 1-hour NAAQS is

demonstrated when an area averages

one or less days per year over the

standard during a three-year period. 40

CFR 50.9 and Appendix H. EPA also

proposed that the appropriate

reclassification of the area was to

serious, based on the area's 1994-1996

design value of 0.132 ppm. For a

complete discussion of the Phoenix

ozone data and method of calculating

both the average number of days over

the ozone standard and the design

value, see 62 FR 46230.

EPA also proposed to deny the State

of Arizona's application for a one-year

extension of the moderate area ozone

attainment date for the Phoenix

nonattainment area. The proposed

denial was based, in part, on evidence

that the Phoenix area is not close to

attainment of the 1-hour ozone standard

and will need additional controls to

attain, and, in part, on the area's failure

to meet the second statutory criterion

for granting an extension. That criterion

requires that the area have no more than

one exceedance of the ozone NAAQS in

1996. CAA section 181(a)(5)(B). The

Fountain Hills special purpose monitor

in the eastern part of the Phoenix

nonattainment area recorded 4

exceedances of the i-hour ozone

NAAQS in 1996. For a complete

discussion of the basis for the proposed

denial of the extension, including EPA's

policies related to the use of special

purpose monitoring data, see 62 FR

46231.

Finally, EPA proposed to require

submittal of the serious area SIP

revisions no later than 12 months from

the effective date of the area's

reclassification.

Il. Response to Comments

EPA received twenty-one comment

letters in response to its September 2,

1997 proposal. Comments were received

from Arizona Governor Jane Dee Hull,

the Arizona legislative leadership, U.S.

Senator Jon Kyl and U.S. Representative

John Shadegg, the Arizona Department

of Environmental Quality (ADEQ), the

Maricopa County Environmental

Services Department (MCESD), several

local elected officials, numerous

business groups, and one environmental

group.

EPA wishes to express its

appreciation to each of these

individuals and organizations for taking

the time to comment on the proposal.

Each raised important issues to which

EPA welcomes the opportunity to

respond.

As described above, EPA's proposal

was composed of three elements: (1) a

finding of failure to attain by the

statutory deadline of November 15,

1996; (2) a denial of the State's

application for a one-year extension of

the attainment date; and (3) a 12-month

schedule for submittal of the revised

SIP.

Most commenters emphasized

Arizona's leadership in the

development and implementation of

effective ozone controls (many of which

are only mandated for serious or severe

ozone nonattainment areas) and its

demonstrated commitment to making

real improvements in air quality.

Among the controls cited are: the State's

premier vehicle emissions inspection

program (which includes the only

regulatory use of remote sensing),

Maricopa County's Travel Reduction

Program, the extension of the Federal

Reformulated Gasoline (RFG) program

to the Phoenix area, the State's adoption

60002 Federal Register / Vol. 62,
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60003

of its own, more stringent "Clean

Burning Gasoline" program as well as

numerous other control programs such

as the voluntary lawnmower

replacement program, mandatory

conversion of government fleets to

alternative fuels, and incentives for

conversion of private fleets to

alternative fuels and for the

construction of public fueling facilities.

The City of Phoenix also listed a

number of innovative air quality

measures that it has implemented, and

finally, APS noted the voluntary efforts

of business and community groups

including the Business for Clean Air

Challenge program.

EPA is very aware of Arizona's

leadership and noted the State's

dedicated efforts to adopt and

implement controls to attain the ozone

standard in its proposal. See 62 FR

46232. The Agency would like to make

clear that in taking this action it is

neither ignoring Arizona's exemplary

efforts to adopt controls to improve its

air quality nor minimizing Arizona's

commitment to clean air. Both are

evidenced by the numerous controls

listed above and the State's continuing

efforts to evaluate its ozone situation.

As stated above, neither the

determination of attainment/

nonattainment nor the determination of

whether an area met the statutory

extension criterion relating to

exceedances of the ozone NAAQS in

1996 allows for reviewing an area's

efforts to adopt controls. This exercise

involves little more than a rote review

of available ambient air quality data.

While EPA may desire more flexibility

in this situation to reward Arizona for

its demonstrated leadership, the Agency

has not been granted that flexibility

under the Clean Air Act.

For the most part, commenters made

similar, and frequently identical,

comments. The issues raised relate

principally to (1) the adverse impacts of

the reclassification to serious, (2) the

retention of the i-hour ozone NAAQS in

EPA's recent action revising the ozone

NAAQS, (3) the denial of the request for

a one-year attainment date extension, (4)

EPA's compliance with the Regulatory

Flexibility Act, and (5) proposed

measures to mitigate the impact of the

reclassification. Many of the comments

received did not directly address EPA's

proposals and instead focused on issues

that have been the subject of earlier EPA

rulemakings (e.g., retention of i-hour

ozone standard), outside of EPA's

regulatory authority in this action (e.g.,

the reclassification to serious), or

unrelated to the action (e.g., approval of

Arizona's excess emissions rule).

In this preamble, EPA is responding

to the most significant comments

received and has provided more

detailed and complete answers to all

comments received in the Response to

Comments (RTC) document which is

part of the technical support document

(TSD) for this rulemaking. Copies of the

TSD as well as other documents in the

docket for this rulemaking may be

obtained from the contact listed at the

beginning of this notice.

A. Comments Related to the Proposed

Finding of Failure to Attain Comment

ADEQ and others note that Arizona

has implemented most of the mandatory

control programs for both serious and

severe ozone nonattainment areas and

the only remaining requirements are for

more stringent new source review (NSR)

and the federal clean fleets program.

Because the imposition of these serious

area requirements will do little to

improve air quality in the Phoenix

metropolitan area, the commenters

contend that the reclassification is

effectively punitive.

Response: Serious ozone

nonattainment areas (like all other

classifications) are subject to both

specific requirements for mandatory

control programs and more general

requirements for attainment and

reasonable further progress. EPA agrees

that the Maricopa area already has in

place most of the mandatory control

programs required for serious area. The

State, however, has yet to address the

requirements for attainment by 1999 in

CAA section 181(c)(2)(A) or the 9

percent rate-of-progress requirement in

section 181(c)(2)(B). Both these

requirements are very likely to require

measures beyond the specific control

programs mandated by a serious area

classification, resulting in improved air

quality for the Phoenix area.

The classification structure of the Act

is a clear statement of Congress's belief

that the later attainment deadlines

afforded higher-classified and

reclassified areas require compensating

increases in the stringency of controls.

The reclassification provisions of the

Clean Air Act are a reasonable

mechanism to assure continued progress

toward attainment of the health-based

ambient air quality standards when

areas miss their attainment deadlines

and are not punitive.

Comment: ADEQ, MCESD, and others

asserted that the schedules for planning

and attainment under a reclassification

almost certainly guarantee failure

because it would be difficult to

complete the needed technical analysis

within the proposed 12-month SIP

submittal schedule and then to

implement any additional controls

needed before the 1999 ozone season.

Response: EPA agrees that the short

time available for planning and

attainment between the moderate area

deadline of November 15, 1996 and the

serious area deadline of November 15,

1999 makes completing the required

technical analysis and adopting

additional controls difficult. The State,

however, has already adopted or is in

the process of adopting a number of

controls that will contribute substantial

emission reductions in 1997 or beyond.

These controls include the federal

reformulated gasoline program for 1997,

Arizona's Clean Burning Gasoline

program for 1998 and later,

improvements to the vehicle emission

inspection program, and an industrial

solvent cleaning rule (currently

schedule for adoption in early 1998). In

addition, ADEQ continues to evaluate

and refine the Urban Airshed modeling

performed for the draft Voluntary Early

Ozone Plan (VEOP). All these actions

give Arizona a head start in meeting the

serious area requirements.

In proposing a 12-month schedule for

submittal of the revised plan, EPA

understood that this was an ambitious

schedule but stated that it believed "a

12-month schedule is appropriate

because the attainment date for serious

areas, November 15, 1999, is little more

than 2 years away and the State will

need to expedite adoption and

implementation of controls to meet that

deadline." See 62 FR 42633. EPA is

therefore retaining the 12-month

schedule for submittal of the SIP

revisions needed to meet the serious

area requirements.

Comment: Commenters argue that

because stationary sources are not the

cause of the ozone problem in Phoenix,

the more stringent new source review

(NSR) requirements that come with the

serious area classification will do little

to improve the air quality and are thus

merely punitive.

Response: Phoenix is not being

singled out for more stringent NSR

requirements than any other similarlyclassified area in the Country such as

Atlanta, Washington, D.C. and San

Diego. The more stringent NSR

provisions (which principally affect

which sources are subject to major

source NSR) are required by statute of

all serious areas without exception. This

tightening of control requirements as

areas move up the classification ladder

and are given more time to attain is part

of the basic Clean Air Act scheme for

ozone attainment. In establishing this

scheme, Congress determined that the

more stringent NSR provision were

reasonable for serious areas and, since
No. 215 / Thursday, November 6, 1997 / Rules and Regulations

Congress did not provide relief from

these requirements for reclassified areas,

it also determined that they were

reasonable without exception for

moderate areas being reclassified to

serious.

B. Comments Related to Retention of the

1-Hour Ozone Standard Comment

A number of comments were received

on the legality of EPA's decision, having

promulgated an 8-hour NAAQS, to defer

revocation of the 1-hour ozone NAAQS.

Response: The continued

applicability of the 1-hour standard

until EPA determines that the

applicable area is meeting that standard

is not the subject of this rulemaking.

This rulemaking only concerns the

finding that the Phoenix area failed to

attain the 1-hour standard and the

denial of the State's request for an

extension of the attainment deadline for

that standard. The issue of the

continued applicability of the 1-hour

standard was part of the rulemaking in

which EPA promulgated an 8-hour

ozone standard. 62 FR 38856 (July 18,

1997). That rulemaking proceeding, not

this one concerning Phoenix, was the

appropriate forum in which to raise

issues concerning the continued

applicability of the 1-hour standard.

C. Comments Related to the Proposal to

Deny A rizona's Application for a OneYear Extension of the Attainment Date

Almost all comments received

opposed EPA's proposed denial of the

State's application for a one-year

extension of the November 15, 1996

attainment date. Before responding to

the specific comments raised with

regard to this issue, some introductory

remarks are in order. In general, the

commenters misperceive the nature of

section 181(a)(5) of the CAA that

provides:

Upon application of any State, the

Administrator may extend for 1 additional

year (hereinafter referred to as the "Extension

Year") the [attainment deadline] if

(A) the State has complied with all

requirements and commitments pertaining to

the area in the applicable implementation

plan, and

(B) no more than 1 exceedance of the

national ambient air quality standard level

for ozone has occurred in the area in the year

preceding the Extension Year.

No more than 2 one-year extensions may

be issued under this paragraph for a single

nonattainment area. Emphasis added.

Many commenters erroneously

assume that if the conditions in

subparagraphs A and B above are met,

then EPA must automatically grant the

extension. However, by its terms,

section 181(a)(5) is ultimately

discretionary. See 62 FR 46230. While

EPA cannot grant an extension request

if the conditions are not met, it is not

required to do so even if they are.

While EPA believes, as discussed at

length below, that the second condition

has not been met, the Agency has ample

justification for denying the request

even if that were not the case. In its

proposal, EPA articulated two reasons to

deny the extension request. The firstthe failure to meet the second extension

criterion-will be discussed further

below. The second-that the Phoenix

area was not close to attainment-went

virtually unaddressed by most the

commenters. As EPA stated in its notice:

[T]he underlying premise of an extension is

that an area is close to attainment and

already has in place the control strategy

needed for attainment. All evidence in front

of the Agency indicates that the Phoenix area

is not close to attainment of the 1-hour ozone

standard and that, despite the State's

dedicated efforts to adopt and implement

controls, the area will need to continue its on

going planning and control efforts. Thus,

even if the Phoenix area met the statutory

requirements for granting an extension, EPA

believes that such an extension would not be

appropriate at this time. Emphasis added. 62

FR 46232.

While several commenters questioned

EPA's conclusion that the Phoenix area

was not close to attainment, their

comments (which are addressed later)

did not persuade EPA that its

conclusion was wrong. In fact, an equal

number of commenters tacitly agreed

with EPA's position by arguing the need

for long-term measures to solve

Phoenix's ozone problem and the

impossibility of showing attainment by

1999.

The central thrust of the comments

EPA received on the extension issue is

that EPA improperly included data from

special purpose monitors (SPMs) 2 in its

calculation of whether the Phoenix area

experienced no more than one

exceedance of the ozone NAAQS in

1996, the year preceding the extension

year, and had EPA properly excluded

the data, then the Phoenix area would

have been granted an extension. For the

reasons discussed below, EPA believes

that it was entitled to rely on that data

in making this assessment. However,

even if the SPM data were excluded

from the calculation, the Agency

believes that it can properly exercise its

discretion to deny the State's extension

request.

As documented below and in

Appendix B to the TSD, since at least

2 1n the Phoenix area, MCESD operates eight

ozone monitors in its official or state or local air

monitoring station/national air monitoring station

(SLAMS/NAMS) network. ADEQ and MCESD

operate a total of nine ozone special purpose

monitors in the area.

1989, Arizona has maintained an

inadequate official monitoring network

and has consistently declined to convert

the SPMs (which meet all of EPA's

technical criteria) to cure those

deficiencies. If it had to rely solely on

this inadequate monitoring network, it

would be impossible for EPA to

determine whether the Phoenix area had

one or fewer exceedances of the ozone

standard in 1996 because the official

network does not adequately represent

Phoenix's air quality. Only when the

data from the SPMs are combined with

those of the official network is it

possible to make this determination and

with the SPM data it is clear that the

Phoenix area is not close to attaining the

ozone i-hour NAAQS. Modeling

conducted by the State confirms this

conclusion. Thus the underlying intent

of the statute's extension provision has

not been met. In acknowledging this

reality, EPA can appropriately exercise

its discretion to deny the extension

request.

Comment: ADEQ contends that in a

letter dated June 6, 1997, to the Clerk of

the United States Court of Appeals for

the Third Circuit, EPA's legal counsel

noted that EPA was not required to

consider non-network (i.e., not part of

the SLAMS/NAMS network) data

showing violations of the NAAQS.

Letter, June 6, 1997, from Lois J.

Schiffer, Assistant Attorney General,

Environmental Natural Resources

Division (by Greer S. Goldman), U.S.

Department of Justice (DOJ) to P.

Douglas Sisk, Clerk, United States Court

of Appeals for the Third Circuit ("3rd

Circuit letter"). ADEQ also cites

Southwestern Pennsylvania Growth

Alliance v. Browner, 121 F.3d 106 (3rd

Cir. 1997), to support its position that

EPA in the past has excluded

exceedance data from its evaluation of

a redesignation request because the data

came from monitors that were not part

of the SLAMS network.

Response: In the 3rd Circuit letter,

EPA actually concluded that the

Agency's regulation on the use of SPM

data, 40 CFR 58.14, does not authorize

it to take into account the State's

intended use of SPM data that otherwise

meet that regulation's requirements

when deciding whether to use it in an

ozone redesignation action. 3 As a result,

under EPA's regulation, all available

SPM data that meet the minimum

federal siting and quality assurance

requirements in 40 CFR Part 58 must be

used in making regulatory decisions

3This letter was signed by DOJ on behalf of EPA

and accurately reflects the Agency's position on the

use of SPM data.

60004 Federal Register / Vol. 62,
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60005

such as redesignations and

reclassifications.

Southwestern Pennsylvania Growth

Alliance involves EPA's disapproval of

the Commonwealth of Pennsylvania's

request to redesignate the PittsburghBeaver Valley nonattainment area to

attainment for ozone. The disapproval

was based on 1995 violations of the

ozone standard recorded on the area's

SLAMS/NAMS network. 61 FR 19193

(May 1, 1996) The Southwestern

Pennsylvania Growth Alliance

(SWPGA), an organization of major

manufacturers and local governments in

the Pittsburgh -Beaver Valley region,

sought review of EPA's disapproval by

the Third Circuit Court of Appeals. A

full history of EPA's actions on

Pennsylvania's redesignation request

can be found in the TSD for today's

notice.

Among the issues raised by SWPGA

was the use of the 1995 SLAMS/NAMS

data. SWPGA argued that EPA acted

contrary to the Act by considering the

1995 ozone exceedances because they

occurred after the EPA's 18 month

deadline to act on the State's

redesignation request which had been

submitted in November, 1993. In an

effort to clarify certain statements made

in its brief, EPA identified certain

instances where it had not used

available data when acting on a

redesignation request. In one instance,

the San Francisco-Bay Area

redesignation to attainment for ozone,

EPA had excluded SPM data from its

redesignation evaluation. The other

instance, LaFourche Parish, Louisiana,

involved only SLAMS/NAMS data. 121

F.3d at 115.

The court then directed EPA to

address a number of questions,

including why it is lawful for EPA to

exclude consideration of data from

monitors that are not part of the SLAMS

network. The 3rd Circuit letter cited by

ADEQ is EPA's response to the court on

this issue. As stated in this letter (p. 4):

For data from monitors that are not part of

the SLAMS network required by [40 CFR]

Part 58 [EPA's monitoring regulation], EPA

regulations provide that EPA will exclude the

data when they do not meet the terms of 40

CFR 58.14. That section provides, in relevant

part:

Any ambient air quality monitoring station

other than a SLAMS or [prevention of

significant deterioration] station from which

the State intends to use the data as part of

a demonstration of attainment or

nonattainment or in computing a design

value for control purposes of the [NAAQS]

must meet the requirements for SLAMS

described in section 58.22 and, after January

1, 1983, must also meet the requirements for

SLAMS as described in section 58.13 and

appendices A and E to this part.

* * * In at least one case, EPA has

interpreted section 58.14 to make a state's

intent a factor in determining whether data

from special purpose monitors that otherwise

meet the requirements of section 58.14 may

be excluded from consideration in an ozone

redesignation action. However, EPA has

recently evaluated that interpretation and

concluded that it is not authorized by section

58.14.

The passage supports the conclusion

that the only circumstance under which

SPM data may be excluded is if the data

do not meet the siting and quality

assurance requirements of Part 58.

The statement that ADEQ cites from

the 3rd Circuit letter comes from the

letter's concluding paragraph which

discusses the specific facts of

Southwestern Pennsylvania Growth

Alliance. All monitoring data under

consideration in that case came from

SLAMs monitors; there were no SPM

data at issue in EPA's decision to deny

the redesignation request. In this

context, it is clear that the 3rd Circuit

letter does not indicate that EPA may

ignore SPM data:

It should be noted, however, that the issue

of whether EPA has discretion to decide if

data from outside the official monitoring

network should be used in redesignation

decisions is not at issue in this case, where

all monitored violations of the ozone

standard were recorded at official network

monitors. And even ifEPA were required to

consider non-network data showing

violations, EPA would not be authorized to

ignore violations at official network monitors

when determining whether an area has

attained the standard and is entitled to

redesignation. 3rd Circuit letter (p. 4).

ADEQ also cites the court's opinion to

support its contention that EPA has

excluded SPM data in the past. While

the court noted that "[i]n at least one

case, the EPA has excluded exceedance

data from its evaluation of a

redesignation request because the data

came from monitors that were not part

of the [SLAMS] network * * *,"it went

on to state in the same paragraph:

Assuming arguendo that the EPA's

exclusion of non-SLAMS exceedance data

violates the EPA's duty not to redesignate an

area that fails to attain the NAAQS, the EPA 's

prior disregard of this duty did not relieve the

EPA of its obligation to act correctly in other

cases. Emphasis added. 121 F.3d at 115.

Based on its interpretation of Section

58.14, and the facts of the Phoenix air

quality situation discussed below, EPA

believes that it is acting correctly in not

excluding the SPM data from

consideration in the Phoenix extension

decision.

Comment: Numerous commenters

questioned the timing of EPA's issuance

of the Memorandum, "Agency Policy on

the Use of Special Purpose Monitoring

Data," dated August 22, 1997, by John

Seitz, EPA Director of the Office of Air

Quality Planning and Standards ("SPM

policy" or "SPM memo"), noting that it

was issued just 3 days in advance of

EPA's announcement that it was

proposing to find that the Phoenix area

had failed to attain the ozone standard

and to deny the State's extension

request. The commenters contend that,

absent this "ad hoc policy," EPA would

not have been able to propose to deny

Arizona's one-year extension request

based upon the use of the special

purpose monitor data that EPA has

heretofore rejected.

Commenters state that the information

submitted to EPA's AIRS and additional

data submitted to EPA by ADEQ

demonstrate that, had the Fountain Hills

special purpose monitor data properly

been excluded, the criterion in section

181(a)(5)(B) would have been satisfied.

Commenters note that during the year

preceding the extension year (1996),

there was only one exceedance of the

ozone NAAQS at a SLAMS or NAMS

monitor (the exceedance at the Mesa

SLAMS monitor on July 23, 1996, when

a reading of 0.127 ppm ozone was

recorded) and that this was the only

ozone exceedance recorded during the

entire calendar year of 1996 on any

official SLAMS or NAMS monitor.

Response: The proper treatment of

SPM data has been growing national

interest for some time, increasing the

need for EPA to issue national guidance.

As noted in the SPM memo (p. 1):

[OAQPS] has received several inquiries from

Regional Offices into how special purpose

monitoring data can be used in making a

variety of regulatory decisions such as

designations, classifications, and attainment

date extensions. [It] also [has] a final ruling

from the U.S. Court of Appeals for the Third

Circuit which supports the U.S. EPA denial

of Pennsylvania's redesignation request for

the Pittsburgh -Beaver Valley ozone

nonattainment area. In light of these

questions, legal developments, and the new

[NAAQS] implementation directives,

[OAQPS] believe[s] it is necessary to discuss

the use of all publicly available special

purpose monitoring data for all regulatory

applications.

Further impetus for the SPM policy

was the revised ozone NAAQS under

which EPA must determine within 90

days of their July 18, 1997 publication

which areas of the Country are attaining

the 1-hour standard. National guidance

is clearly essential to assure consistency

in the use of SPM data for these

determinations.

The interest in and the need for a

clear statement of the Agency's policy

on SPM data was thus far broader than

the Phoenix situation. The Agency did

not, as the commenters imply, create an
No. 215 / Thursday, November 6, 1997 / Rules and Regulations

"ad hoc" policy simply to justify its

proposed denial of Arizona's request for

an extension but rather it articulated a

national policy applicable to all areas of

the Country.

The commenters, however, wrongly

assert that EPA needed the August 22,

1997 SPM policy to justify its denial of

Arizona's extension request. Even

without a formal written policy

statement, EPA believes that it has

sound reasons to use the SPM data in

this case, including the inadequate

SLAMS/NAMS network in Phoenix, the

discrepancies in measured air quality

between the official monitors and the

SPMs, and its long-established

regulations governing the use of SPM

data.

Moreover, the June 6, 1997 letter to

the Third Circuit and the Court's

subsequent July 28, 1997 decision in

Southwestern Pennsylvania Growth

Alliance, both available long before

EPA's announcement, may be read to

imply that EPA must consider available

SPM data in making regulatory

decisions such as granting extension

requests. As noted in the SPM memo (p.

2):

The Third Circuit Court decision supports

the view that the EPA may not redesignate

an area from nonattainment to attainment if

the EPA knows that the area is not meeting

the ozone NAAQS. Specifically, if the U.S.

EPA knows of a violation or violations of the

ozone NAAQS by either examining

information within the AIRS or data from

other sources and these data meet all 40 CFR

Part 58 requirements, the U.S. EPA cannot

determine that an area is attaining the

NAAQS.

This logic applies equally to

extension requests: if EPA knows of

more than one exceedance in an area in

the year preceding the extension year by

either examining information within

AIRS or data from other sources and

these data meet all 40 CFR part 58

requirements, EPA cannot grant an

extension of the attainment date.

Finally, EPA notes that it informed

Arizona of its intention to use the SPM

data in advance of its August 25, 1997

announcement. In a presentation to the

May 19, 1997 meeting of the Arizona air

quality monitoring network

stakeholders, 4 EPA stated that the

current Maricopa SLAM network was

deficient and that it could not, without

inclusion of the SPM sites, support the

granting of an extension. At the June 9,

4

ADEQ convened a series of facilitated

stakeholder meetings in May through July, 1997 to

discuss the ambient air quality monitoring network

in Maricopa County. Participants included MCESD,

other local agencies, industry representatives, and

environmental groups. EPA also participated in the

meetin gs.

1997 meeting, EPA distributed the 3rd

Circuit letter and noted that EPA would

soon be formally clarifying its use of

SPM data. EPA also made a series of

courtesy calls to state and local agencies

the week before its announcement to

inform them that it would be proposing

to find that Phoenix had failed to attain

and that it was proposing to deny the

extension request based in part on the

SPM data.

Comment: Several commenters

contend that the use of the SPM data in

this instance is inconsistent with

actions taken in other nonattainment

areas where SPM data were excluded for

the purposes of making similar

determinations and conclude that if

EPA had followed its earlier precedents

then data from the Fountain Hills

special purpose monitor would not have

been used to deny the extension request.

ADEQ also notes that the SPM memo

implicitly concedes that Agency policy

up to the date of the memorandum had

been to reject exactly the kind of

monitoring data on which EPA based its

decisions to propose to deny the oneyear extension. Commenters view EPA's

refusal to follow prior precedent and

disregard special purpose monitor data

in this situation as a simple case of

disparate treatment.

Response: EPA's previous record on

the use of SPM data contains numerous

examples of instances where the Agency

has used SPM data in making

designation and classification decisions.

While commenters note one instance

where EPA did not use available SPM

data (the Beaumont-Port Arthur

reclassification), and the SPM memo

notes one other (the San Francisco-Bay

Area redesignation), there are many

more instances where the Agency has

used SPM data to either designate or

classify an area, including the original

classification of the Phoenix area as

moderate for ozone and the PM-10

nonattainment designations for the

Bullhead City and Payson, Arizona

areas. See 56 FR 56694, 56703

(November 6, 1991) and 58 FR 67334,

67336 (December 21, 1993),

respectively. Outside of Arizona, EPA

has used SPM data to redesignate to

nonattainment portions of White Top

Mountain in New York and Smyth

County, Virginia. See 56 FR 56694,

56704.

Many commenters cited EPA's 1996

action to correct the Beaumont/Port

Arthur, Texas area ozone classification

from serious to moderate as an example

of EPA's inconsistent use of SPM data.

61 FR 14496 (April 2, 1996). In this

case, data from an SPM had originally

been utilized to classify the Beaumont/

Port Arthur area as a serious ozone

nonattainment area. Based on additional

information provided by Texas, EPA

corrected the reclassification under

CAA section 110(k)(6) from serious to

moderate, stating that the data from the

SPM should not have been used for

classification purposes because, among

other reasons, the SPM was not a part

of the state monitoring network, the data

from the monitor were utilized for

research purposes, and the data were

not reported to EPA's Aerometric

Information Retrieval System (AIRS).

Commenters contend that in these

three circumstances the Phoenix

situation closely parallels BeaumontPort Arthur's; therefore, EPA should

treat the Phoenix SPM data in a like

manner by excluding it. In response,

EPA notes that it has clarified its policy

on the treatment of SPM data since the

April 2, 1996 action on Beaumont-Port

Arthur, resulting in all three of these

circumstances no longer being grounds

for excluding SPM data. 5

Even if EPA's regulations and policy

were that valid SPM data could be

excluded in some cases (which they are

not), EPA believes that there are two

compelling reasons to use the SPM data

in the Phoenix case. These reasons are

(1) the inadequacy of the Maricopa

ozone monitoring network and (2) the

large discrepancy between air quality

when measured on Maricopa's SLAMS/

NAMS network and when measured on

the SLAMS/NAMS/SPM network.

Since 1989, EPA has consistently

found that Maricopa's existing ozone

SLAMS/NAMS network is inadequate to

meet the monitoring objectives of Part

58, more specifically the requirement

for a site measuring maximum

concentration. A complete history of

EPA's evaluations of the Maricopa

County monitoring network can be

found in Appendix D to the TSD.

Numerous evaluations, including the

recent VEOP, have indicated that

maximum ozone concentrations are

occurring in the rapidly-developing

eastern -northeastern portion of

5

This policy clarification is clearly permissible.

Moreover, even if it were a change or revision in

policy, rather than a clarification, it would also

clearly be permissible. It is well established that an

agency may modify or reverse its interpretation over

time provided the agency supplies a reasoned basis

for the change. See e.g., Chevron U.S.A., Inc. v.

NRDC, 467 U.S. 837, 863 (1984); Motor Vehicle

Manufacturers Assoc. of the U.S., Inc. v. State Farm

Mutual Automobile Insurance Co., 463 U.S. 29, 42

(1983)("we fully recognize that "[regulatory]

agencies do not establish rules of conduct to last

forever' * * * and that an agency must be given

ample latitude to "adapt their rules and policies to

the demands of changing circumstances.' "); Good

Samaritan Hospital v. Shalala, 113 S. Ct. 2151,

2161 (1993) ("[A]n administrative agency is not

disqualified from changing its mind * * *"). EPA

provided that reasonable basis in the SPM memo.

60006 Federal Register / Vol. 62,
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60007

Maricopa County. 6 While there are

SLAMS sites located throughout the

central part of the Phoenix metropolitan

area, there are no SLAMS sites on the

eastern edge of the Phoenix area. EPA

has been urging the County for nearly a

decade to locate an ozone SLAMS

monitor in this area. The County has

responded by locating numerous SPM

sites there (including the Fountain Hills

SPM site) but has yet to convert any of

those sites into SLAMS or NAMS.

Based solely on this inadequate

network, it is not possible for EPA to

accurately determine the area's

compliance with the second statutory

criterion for extensions. Such a

determination can only be made based

on data from a complete network that

accurately reflects air quality in the

area; therefore, even if the SPM data

were excluded from the calculation, the

Agency believes that it can properly

exercise its discretion to deny the

State's extension request.

The inadequate SLAMS network has

led to a troubling discrepancy between

the air quality measured on the SLAMS/

NAMS network and that network when

augmented by the SPM sites. This is

illustrated by Table 1 below.

TABLE 1 .- AIR QUALITY COMPARISON BETWEEN THE SLAMS/NAMS NETWORK AND SLAMS/NAMS/SPM NETWORK

[Maricopa County, 1994-1996]

SLAMS/

SLAMS! NAMS/SPM network

NAMS net- (woMt work (W/o Mt. Ord or Blue

Point)

N u m b e r o f O zo ne E xce e d a nce ........................................................................................................................................ 10 4 4

N u m b e r o f O zo n e V io la tio n s ............................................................................................................................................ 2 1 3

N um ber of D ays over the O zone S tandard ..................................................................................................................... 6 2 1

Clearly had EPA ignored the SPM

data in Maricopa County, it would have

greatly underestimated the severity of

the area's air quality and

inappropriately downplayed the impact

of that air quality on public health.

Given the significant probability that

the Phoenix area would eventually face

reclassification to serious even if it were

granted an extension, EPA questions the

actual benefit of an extension to the

area. The commenters have made

extensive comments on the adverse

impacts of reclassification, among them

the short-term planning and attainment

deadlines facing newly serious areas

and the imposition of the more stringent

NSR provisions. An extension would

only compound the problem of the short

time frames while simply deferring the

more stringent NSR provisions for a

short time. Hence, even if it were within

its discretion to grant an extension, EPA

stands by its belief that an extension is

not appropriate at this time.

Comment: A number of commenters

noted that the Phoenix area had not

experienced any ozone exceedances in

1997 and asserted that this indicates

that the area's ozone problem has been

solved. Noting that the number of ozone

exceedances peaked in 1995 and

decreased in 1996, the County stated

that the "reality check" provided by the

ambient data indicates a trend

contradictory to EPA's contention that

the Phoenix area is not close to

attainment.

6This is borne out by the fact that all but one of

the 1996 exceedances (the one at the Mesa SLAMS

monitor) occurred at monitors to the east or

northeast of the metropolitan area.

Response: The clean ozone air quality

that the Phoenix area has experienced

this year is very good news. These lower

ozone readings are due in some part to

the introduction of reformulated

gasoline and the continuing

implementation of other control

programs such as the State's premier

vehicle emission inspection program.

Unfortunately, a single year of ozone

data cannot be used to conclude that an

area is close to attaining the 1-hour

ozone standard. The Phoenix area has

experienced another year (1989) in

which ozone exceedances were not

recorded, only to have the subsequent

years show widespread violations.

Ozone levels are related to both

emission levels and meteorology. As a

result of this meteorological component,

ozone levels can vary greatly from year

to year. The 1-hour ozone standard

accounts for the weather's effect by

evaluating compliance over a three-year

period (that is, an area can average no

more than 1 exceedance per year over a

three-year period). 40 CFR 50.9 and part

50, Appendix H.

There is some reason to believe that

favorable weather patterns this year

have also contributed to Phoenix's low

ozone readings. In fact, 1997 has been

an unusually good year for air quality

throughout the West. All areas in EPA

Region 9 (with the exception of San

Diego and the Imperial Valley) have

shown decreases in second-high ozone

levels from 1996 to 1997, many greater

7SBREFA amended the Regulatory Flexibility Act

(RFA), 5 U.S.C. 601 et seq. 8 EPA notes that businesses that emit 100 tpy or

more are already subject to some of these

than Phoenix's. None of these areas has

introduced substantial new emission

reduction programs, like Phoenix, that

would account for these decreases.

D. Comments Related to the Regulatory

Flexibility Act Requirements

Comment: A number of commenters

claimed that EPA failed to comply with

the Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA) in its proposal. 7 The

commenters claim that EPA's

certification that its action would not

have a significant economic impact on

a substantial number of small entities is

incorrect.

In support of their argument, the

commenters state that small businesses

that emit 50 tpy or more of VOC will

become subject to reasonably available

control technology (RACT)

requirements, more stringent NSR

requirements, and the Title V operating

permit program as a result of the

reclassification to serious and describe

in more detail the potential adverse

impacts of these requirements on small

businesses. 8

The commenters further assert that

EPA's reliance on Mid-Tex Electric

Cooperative, Inc. v. FERC, 773 F.2d 327

(D.C. Cir. 1985) for not preparing a

regulatory flexibility analysis is

misplaced. Finally, as an aside, the

commenters note that Mid-Tex was

decided a decade before Congress

enacted SBREFA and more significantly,

requirements under the moderate area

classification.
No. 215 / Thursday, November 6, 1997 / Rules and Regulations

SBREFA imposes outreach requirements

on EPA and OSHA which are imposed

on no other government agencies (citing

5 U.S.C. 609(b) and (d)).

Response: The Regulatory Flexibility

Act provides that, whenever an agency

is required to publish a general notice

of rulemaking for a proposed rule, the

agency must prepare an initial

regulatory flexibility analysis for the

proposed rule unless the head of the

agency certifies that the rule "will not,

if promulgated, have a significant

economic impact on a substantial

number of small entities" (section

605(b)). EPA certified the proposed

determination that the Phoenix area did

not attain the 1-hour ozone standard by

the attainment date and the proposed

denial of the attainment date extension

request, 9 based on its conclusion that

the rule would not establish

requirements applicable to small

entities and therefore would not have a

significant economic impact on small

entities within the meaning of the RFA.

EPA is reaffirming that certification in

this final action.

As described elsewhere in this notice,

CAA section 18 1(b) requires EPA to

determine whether an area has attained

a NAAQS by the applicable attainment

deadline. If EPA finds that the area has

not attained, the section generally

provides that the area "shall be

reclassified by operation of law"

(section 181(b)(2)(A)). The section

requires EPA to publish a notice in the

Federal Register identifying each area

the Agency has determined to be in

nonattainment and "identifying" the

resulting reclassification of the area

(section 181(b)(2)(B)).

While determinations that trigger a

reclassification do not themselves

establish regulatory requirements

applicable to small (or large) entities,

they may, as noted by the commenters,

trigger the application to small entities

of regulatory requirements established

by other rulemakings under the Clean

Air Act (and conceivably other statutes).

EPA, however, has concluded that the

word "impact" as used in the RFA does

not include regulatory requirements that

the rule does not establish, but may

trigger under the terms of other rules or

statutory provisions. For the reasons

discussed at length in the TSD, EPA

believes that the RFA's text, legislative

history and case law, including MidTex, all make clear that RFA analysis is

9 Commenters only addressed the potential

impact on small businesses of the reclassification

(which is based on the determination of

nonattainment and the denial of the extension

request), and not the potential impacts of the SIP

submittal schedule. Therefore, the latter action is

not discussed further in response to this comment.

limited to the requirements of the rule

being promulgated.

A more detailed discussion of this

issue may be found in the TSD for this

rulemaking.

E. Comments Related to Mitigating the

Adverse Impacts of Reclassification

Many commenters suggested several

steps that could be taken to mitigate the

adverse impacts of the reclassification to

serious. While EPA will briefly respond

to most of the suggestions here, many

involve issues that are being dealt with

in forums other than this action. EPA

will continue to work with interested

parties in Arizona to address these

issues in those other forums. EPA also

received questions regarding the

implementation of NSR and Title V

requirements. Those questions are

addressed in the TSD.

Comment: Commenters requested that

EPA suspend further enforcement of the

1-hour ozone NAAQS in the Phoenix

Metropolitan area by amending its

"implementation policy" for the revised

8-hour ozone NAAQS. Commenters

contend that EPA has the flexibility and

authority to do so under the

"implementation policy" by citing the

policy's statements that implementation

of the new 8-hour ozone NAAQS should

be "carried out to maximize common

sense, flexibility, and cost

effectiveness." 62 FR 38421 (July 18,

1997).

Response: The document referred to

and cited by the commenters as the

"Implementation Policy," 62 FR 38421

(July 18, 1997) is a memorandum to the

EPA Administrator entitled

"Implementation of Revised Air Quality

Standards for Ozone and Particulate

Matter" ("President's Memorandum")

signed by President Clinton for the

implementation of the revised ozone

and particulate matter standards.

Attached to that memorandum is a

strategy, "Implementation Plan for

Revised Air Quality Standards"

("Implementation Plan") outlining the

steps for implementing these standards.

EPA is currently developing guidance

and proposed rules consistent with the

President's Memorandum. EPA is

committed to the goals of maximizing

common sense, flexibility, and cost

effectiveness in implementing the

revised NAAQS.

EPA's action reclassifying Phoenix as

a serious ozone nonattainment area is in

no way inconsistent with those goals.

Furthermore, it is consistent with the

continued applicability of the 1-hour

standard and subpart 2 as provided for

in EPA's rulemaking on the ozone

NAAQS. See 62 FR 38856, 38873. To

the extent that the comments concern

that issue, they are not appropriately

raised in this rulemaking.

Neither the provisions of 40 CFR 50.9,

as revised (62 FR 38856, 38894), nor any

other statutory or regulatory provisions,

provide EPA with the authority to

suspend enforcement of the 1-hour

NAAQS in Phoenix. Moreover, as noted

earlier, the Phoenix area has not

complied with some of the most

significant serious area requirements

(e.g., the 9 percent rate of progress

requirement). Finally EPA believes that

complying with those requirements will

have a positive, not detrimental, effect

on the ability of Phoenix to comply with

the 8-hour standard. Additional

comments related to this point are

addressed in the TSD.

Comment: The commenters requested

that EPA execute an agreement with the

State of Arizona to act upon submitted

SIP revisions within a fixed period of

time based upon priorities identified by

the State and to set a schedule for acting

on future SIP revisions.

Response: EPA Region 9 receives

hundreds of requests each year to revise

federally-enforceable SIPs from over 40

different state and local air pollution

agencies. These include requests to

modify inventories, attainment

demonstrations, and administrative,

permit, and prohibitory regulations.

Given the available resources, Region 9

is unable to review and act on each of

these requests as quickly as it would

like. As a result, the Agency relies on

the state and local agencies to prioritize

submittals so that the most important

ones to the state and local agencies can

be acted on first. Region 9 does expect

to take final action soon on several

revisions submitted by Maricopa County

and has recently contacted the Arizona

air pollution agencies to request that

they identify those submittals that need

to be acted quickly in order to issue

Title V permits or for other purposes.

Region 9 will process submittals in the

priority order requested by these

agencies.

Comment: Commenters requested that

EPA approve EPA Arizona

Administrative Code (A.A.C.) R18-2-

310 (The Arizona Excess Emissions

Rule) as a revision to the SIP.

Response: This comment is closely

related to a lawsuit brought by the

Arizona Mining Association with regard

to EPA's interim approval of Arizona's

Title V operating permit program on

October 30, 1996 (61 FR 55910). The

parties involved in the suit have had

constructive exchanges, which EPA

expects to continue, on the appropriate

treatment of the Arizona Excess

Emissions Rule during the settlement

discussions.

60008 Federal Register / Vol. 62,
No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60009

Comment: Commenters request that

EPA adopt realistic, streamlined

national Prevention of Significant

Deterioration (PSD) and New Source

Review (NSR) regulations.

Response: EPA recognizes that its

current regulations governing the new

source review programs mandated by

both parts C (PSD) and D (NSR) of Title

I of the Clean Air Act are a source of

concern for many people. On July 23,

1996, EPA proposed major revisions

(known as the NSR reform proposal) to

its PSD and NSR regulations. 61 FR

38250. EPA has received many

comments on its proposal and is

currently carefully reviewing and

considering these comments as it

develops the final rule. EPA's goal for

this final rule is to simplify its NSR and

PSD regulations consistent with the

Clean Air Act requirements for those

programs.

Comment: Commenters request that

EPA adopt a regulatory affirmative

defense for sources with potential VOC

emissions of from 50 to 100 tons per

year that will apply to enforcement of

the NSR requirements in ozone

nonattainment areas that meet certain

criteria.

Response: It appears that the

commenters are attempting to ease the

perceived regulatory burden that will be

imposed on sources that emit between

50 and 100 tons of VOC per year as a

result of the reclassification. EPA will

study the proposal, but its initial

response is that the commenters'

suggested approach is not the most

effective means for addressing their

underlying concerns. EPA believes it

may be constructive to engage in a

dialogue regarding possible mechanisms

for limiting sources' potential to emit to

below the thresholds that trigger NSR.

However, where a source's actual

emissions exceed the major source

threshold or the source is unable to

reduce its potential to emit below the

major source threshold, the source is

subject to major NSR.

Comment: Commenters request that

EPA continue to expeditiously act to

approve the Arizona Clean Burning

Gasoline Program.

Response: EPA has been very pleased

to support Arizona's efforts to bring

reformulated gasoline to the Phoenix

area. In addition to approving the

Governor's request to join the federal

program and the State's request for

lower RVP limits, the Agency

participated in the development of the

new CBG rules in order to correct any

approval problems early in the process.

EPA is now working closely with ADEQ

to act on the recent submittal of the CBG

rules. This work is among EPA's highest

priorities.

F. Other Comments

Comment: Senator Kyl and

Representative Shadegg commented that

by using data collected from 1994

through 1996 as the basis for its

decision, EPA has not taken into

account the significant and positive

effects of the RFG program and other

actions taken by the State of Arizona to

reduce ozone pollution and that this

results in an inaccurate and

unwarranted reclassification of Phoenix

to serious. They comment further that

this violates principles in President's

July 18, 1997 memorandum that

"implementation of the air quality

standards is to be carried out to

maximize common sense, flexibility,

and cost effectiveness."

Response: EPA agrees that the 1994-

1996 data do not reflect the 1997

implementation of the RFG program and

that this program will have a continuing

positive effect on ozone levels in the

Phoenix area. EPA, however, is

constrained by statute from considering

1997 data in its finding of failure to

attain and denial of the extension

request.

CAA section 181(b)(4) requires EPA to

determine if an area has attained "as of

the attainment date." For Phoenix, the

attainment date is November 15, 1996,

and under long-established procedures,

determining attainment as of that date

requires reviewing data from the three

years immediately preceding that date

or 1994 through 1996. 40 CFR 50.9 and

part 50, Appendix H.

The criterion for extensions in CAA

section 181(a)(5)(B) is that "no more

than one exceedance of the [ozone

standard] has occurred in the area in the

year preceding the Extension Year." The

extension year is 1997, thus the "year

preceding" is 1996.

VI. Final Action

EPA is finding that the Phoenix ozone

nonattainment area did not attain the

ozone NAAQS by November 15, 1996,

the CAA attainment date for moderate

ozone nonattainment areas. EPA is also

denying Arizona's application for a oneyear extension of the attainment date.

As a result of this finding and denial,

the Phoenix ozone nonattainment area

is reclassified by operation of law as a

serious ozone nonattainment area on the

effective date of today's action and the

submittal of the serious area SIP

revisions will be due no later than 12

months from this effective date. The

requirements for this SIP submittal are

established in CAA section 182(c) and

applicable EPA guidance.

Nothing in this action should be

construed as permitting, allowing or

establishing a precedent for any future

action. Each finding of failure to attain,

request for an extension of an

attainment date, and establishment of a

SIP submittal date shall be considered

separately and shall be based on the

factual situation of the area under

consideration and in relation to relevant

statutory and regulatory requirements.

VI. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866, (58 FR 51735,

October 4, 1993), EPA is required to

determine whether today's action is a "significant regulatory action" within

the meaning of the E.O., and therefore

should be subject to OMB review,

economic analysis, and the

requirements of the E.O. See E.O. 12866,

sec. 6(a)(3). The E.O. defines, in sec.

3(f), a "significant regulatory action" as

a regulatory action that is likely to result

in a rule that may meet at least one of

four criteria identified in section 3(f),

including,

(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 entitlements, 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.

EPA has determined that neither the

finding of failure to attain it is making

today, the denial of Arizona's request

for a one-year extension of the

attainment data, nor the establishment

of SIP submittal schedule would result

in any of the effects identified in E.O.

12866 sec. 3(f). As discussed in the

response to comments above and in

more detail in the TSD, findings of

failure to attain under section 181(b)(2)

of the Act are based upon air quality

considerations, and reclassifications

must occur by operation of law in light

of certain air quality conditions. These

findings do not, in and of themselves,

impose any new requirements on any

sectors of the economy. In addition,

because the statutory requirements are

clearly defined with respect to the

differently classified areas, and because

Federal Register / Vol. 62,
No. 215 / Thursday, November 6, 1997 / Rules and Regulations

those requirements are automatically

triggered by classifications that, in turn,

are triggered by air quality values,

findings of failure to attain and

reclassification cannot be said to impose

a materially adverse impact on State,

local, or tribal governments or

communities. The same is true of the

determination not to grant a one-year

extension, in light of the fact that this

determination is also based in part on

air quality values. Similarly, the

establishment of new SIP submittal

schedules merely establishes the dates

by which SIPs must be submitted, and

does not adversely affect entities.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 601 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

As discussed in the response to

comments above and in more detail in

the TSD, a finding of failure to attain

(and the consequent reclassification by

operation of law of the nonattainment

area) under section 181(b)(2) of the Act,

a denial of a one-year extension request,

and the establishment of a SIP submittal

schedule for a reclassified area, do not,

in -and -of-themselves, directly impose

any new requirements on small entities.

See Mid-Tex Electric Cooperative, Inc. v.

FERC, 773 F.2d 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 rulemaking simply makes a

factual determination and establishes a

schedule to require States to submit SIP

revisions, and does not directly regulate

any entities. Therefore, pursuant to 5

U.S.C. 605(b), EPA reaffirms its

certification made in the proposal (62

FR46233) that today's final action will

not have a significant impact on a

substantial number of small entities

within the meaning of those terms for

RFA purposes.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub. L.

104-4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, when EPA promulgates "any

general notice of proposed rulemaking

that is likely to result in promulgation

of any rule that includes any Federal

mandate that may result in the

expenditures by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more"

in any one year. A "Federal mandate"

is defined, under section 101 of UMRA,

as a provision that "would impose an

enforceable duty" upon the private

sector or State, local, or tribal

governments", with certain exceptions

not here relevant. Under section 203 of

UMRA, EPA must develop a small

government agency plan before EPA

"establish[es] any regulatory

requirements that might significantly or

uniquely affect small governments".

Under section 204 of UMRA, EPA is

required to develop a process to

facilitate input by elected officers of

State, local, and tribal governments for

EPA's "regulatory proposals" that

contain significant Federal

intergovernmental mandates. Under

section 205 of UMRA, before EPA

promulgates "any rule for which a

written statement is required under

[UMRA sec.] 202", EPA must identify

and consider a reasonable number of

regulatory alternatives and either adopt

the least costly, most cost-effective or

least burdensome alternative that

achieves the objectives of the rule, or

explain why a different alternative was

selected.

Generally, EPA has determined that

the provisions of sections 202 and 205

of UMRA do not apply to this decision.

Under section 202, EPA is to prepare a

written statement that is to contain

assessments and estimates of the costs

and benefits of a rule containing a

Federal Mandate "unless otherwise

prohibited by law." Congress clarified

that "unless otherwise prohibited by

law" referred to whether an agency was

prohibited from considering the

information in the rulemaking process,

not to whether an agency was

prohibited from collecting the

information. The Conference Report on

UMRA states, "This section [202] does

not require the preparation of any

estimate or analysis if the agency is

prohibited by law from considering the

estimate or analysis in adopting the

rule." 141 Cong. Rec. H3063 (Daily ed.

March 13, 1995). Because the Clean Air

Act prohibits, when determining

whether an area attained the ozone

standard or met the criteria for an

extension, from considering the types of

estimates and assessments described in

section 202, UMRA does not require

EPA to prepare a written statement

under section 202. Although the

establishment of a SIP submission

schedule may impose a federal mandate,

this mandate would not create costs of

$100 million or more, and therefore, no

analysis is required under section 202.

The requirements in section 205 do not

apply because those requirements for

rules "for which a written statement is

required under section 202 * * "

With regard to the outreach described

in UMRA section 204, EPA discussed its

proposed action in advance of the

proposal with State officials.

Finally, section 203 of UMRA does

not apply to today's action because the

regulatory requirements finalized

today-the SIP submittal scheduleaffect only the State of Arizona, which

is not a small government under UMRA.

D. Submission to Congress and the

General Accounting Office

Under section 801(a)(1)(A) of the

Administrative Procedures Act (APA) as

amended 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 section

804(2) of the APA as amended.

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 5, 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 81

Environmental protection, Air

pollution control, Intergovernmental

relations, Ozone.

Dated: October 27, 1997.

Harry Seraydarian,

A cting Regional A dm inistrator.

Part 81, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

60010 Federal Register / Vol. 62,
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60011

PART 81-[AMENDED] Authority: 42 U.S.C. 7401 767 1q. §81.303 Arizona

2. Section 81.303 is amended by * * *

1. The authority citation for part 81 revising the table for Arizona- Ozone,

continues to read as follows: for the Phoenix Area to read as follows:

ARIZONA-OZONE

Designation Classification

Designated area

Date Type Date Type

Phoenix Area:

M aricopa C ounty (part) ....................................................

The Urban Planning Area of the Maricopa Association of Governments is bounded as follows:

1.Commencing at a point which is at the intersection of the eastern line of Range 7 East,

Gila and Salt River Baseline and Meridian,

and the southern line of Township 2 South,

said point is the southeastern corner of the

Maricopa Association of Governments Urban

Planning Area, which is the point of beginning;

2. Thence, proceed northerly along the eastern

line of Range 7 East which is the common

boundary between Maricopa and Pinal Counties, as described in Arizona Revised Statute

Section 11-109, to a point where the eastern

line of Range 7 East intersects the northern

line of Township 1 North, said point is also

the intersection of the Maricopa County Line

and the Tonto National Forest Boundary, as

established by Executive Order 869 dated

July 1, 1908, as amended and showed on

the U.S. Forest Service 1969 Planimetric

Maps;

3. Thence, westerly along the northern line of

Township 1 North to approximately the

southwest corner of the southeast quarter of

Section 35, Township 2 North, Range 7 East,

said point being the boundary of the Tonto

National Forest and Usery Mountain SemiRegional Park;

4. Thence, northerly along the Tonto National

Forest Boundary, which is generally the

western line of the east half of Sections 26

and 35 of Township 2 North, Range 7 East,

to a point which is where the quarter section

line intersects with the northern line of Section 26, Township 2 North, Range 7 East,

said point also being the northeast corner of

the Usery Mountain Semi-Regional Park;

5. Thence, westerly along the Tonto National

Forest Boundary, which is generally the

south line of Section 19, 20, 21 and 22 and

the southern line of the west half of Section

23, Township 2 North, Range 7 East, to a

point which is the southwest corner of Section 19, Township 2 North, Range 7 East;

6. Thence, northerly along the Tonto National

Forest Boundary to a point where the Tonto

National Forest Boundary intersects with the

eastern boundary of the Salt River Indian

Reservation, generally described as the center line of the Salt River Channel;

7. Thence, northeasterly and northerly along

the common boundary of the Tonto National

Forest and the Salt River Indian Reservation

to a point which is the northeast corner of

the Salt River Indian Reservation and the

southeast corner of the Fort McDowell Indian

Reservation, as shown on the plat dated July

22, 1902, and recorded with the U.S. Government on June 15, 1902;

11/15/90 1 Nonattainment ............... 12/8/97 1 Serious.
60012 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

ARIZONA-OZONE-Continued

Designation Classification

Designated area

Date Type Date Type

8. Thence, northeasterly along the common

boundary between the Tonto National Forest

and the Fort McDowell Indian Reservation to

a point which is the northeast corner of the

Fort McDowell Indian Reservation;

9. Thence, southwesterly along the northern

boundary of the Fort McDowell Indian Reservation, which line is a common boundary

with the Tonto National Forest, to a point

where the boundary intersects with the eastern line of Section 12, Township 4 North,

Range 6 East;

10. Thence, northerly along the eastern line of

Range 6 East to a point where the eastern

line of Range 6 East intersects with the

southern line of Township 5 North, said line

is the boundary between the Tonto National

Forest and the east boundary of McDowell

Mountain Regional Park;

11. Thence, westerly along the southern line of

Township 5 North to a point where the southern line intersects with the eastern line of

Range 5 East which line is the boundary of

Tonto National Forest and the north boundary of McDowell Mountain Regional Park;

12. Thence, northerly along the eastern line of

Range 5 East to a point where the eastern

line of Range 5 East intersects with the

northern line of Township 5 North, which line

is the boundary of the Tonto National Forest;

13. Thence, westerly along the northern line of

Township 5 North to a point where the northern line of Township 5 North intersects with

the easterly line of Range 4 East, said line is

the boundary of Tonto National Forest;

14. Thence, northerly along the eastern line of

Range 4 East to a point where the eastern

line of Range 4 East intersects with the

northern line of Township 6 North, which line

is the boundary of the Tonto National Forest;

15. Thence, westerly along the northern line of

Township 6 North to a point of intersection

with the Maricopa-Yavapai County line,

which is generally described in Arizona Revised Statute Section 11-109 as the center

line of the Aqua Fria River (Also the north

end of Lake Pleasant);

16. Thence, southwesterly and southerly along

the Maricopa-Yavapai County line to a point

which is described by Arizona Revised Statute Section 11-109 as being on the center

line of the Aqua Fria River, two miles southerly and below the mouth of Humbug Creek;

17. Thence, southerly along the center line of

Aqua Fria River to the intersection of the

center line of the Aqua Fria River and the

center line of Beardsley Canal, said point is

generally in the northeast quarter of Section

17, Township 5 North, Range 1 East, as

shown on the U.S. Geological Survey's Baldy

Mountain, Arizona Quadrangle Map, 7.5

Minute series (Topographic), dated 1964;

18. Thence, southwesterly and southerly along

the center line of Beardsley Canal to a point

which is the center line of Beardsley Canal

where it intersects with the center line of Indian School Road;
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60013

ARIZONA-OZONE-Continued

Designation Classification Designated area

Date Type Date Type

19. Thence, westerly along the center line of

West Indian School Road to a point where

the center line of West Indian School Road

intersects with the center line of North Jackrabbit Trail;

20. Thence, southerly along the center line of

Jackrabbit Trail approximately nine and

three-quarter miles to a point where the center line of Jackrabbit Trail intersects with the

Gila River, said point is generally on the

north-south quarter section line of Section 8,

Township 1 South, Range 2 West;

21. Thence, northeasterly and easterly up the

Gila River to a point where the Gila River

intersects with the northern extension of the

western boundary of Estrella Mountain Regional Park, which point is generally the

quarter corner of the northern line of Section

31, Township 1 North, Range 1 West;

22. Thence, southerly along the extension of

the western boundary and along the western

boundary of Estrella Mountain Regional Park

to a point where the southern extension of

the western boundary of Estrella Mountain

Regional Park intersects with the southern

line of Township 1 South;

23. Thence, easterly along the southern line of

Township 1 South to a point where the south

line of Township 1 South intersects with the

western line of Range 1 East, which line is

generally the southern boundary of Estrella

Mountain Regional Park;

24. Thence, southerly along the western line of

Range 1 East to the southwest corner of

Section 18, Township 2 South, Range 1

East, said line is the western boundary of the

Gila River Indian Reservation;

25. Thence, easterly along the southern boundary of the Gila River Indian Reservation

which is the southern line of Sections 13, 14,

15, 16, 17, and 18, Township 2 South,

Range 1 East, to the boundary between Maricopa and Pinal Counties as described in Arizona Revised Statues Section 11-109 and

11-113, which is the eastern line of Range 1

East;

26. Thence, northerly along the eastern boundary of Range 1 East, which is the common

boundary between Maricopa and Pinal Counties, to a point where the eastern line of

Range 1 East intersects the Gila River;

27. Thence, southerly up the Gila River to a

point where the Gila River intersects with the

southern line of Township 2 South; and

28. Thence, easterly along the southern line of

Township 2 South to the point of beginning

which is a point where the southern line of

Township 2 South intersects with the eastern

line Range 7 East

[ER Doc. 97 29396 Filed 11 5 97; 8:45 am]

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