28898 Federal Register / Vol. 63, No. 101 /Wednesday, May 27, 1998 /Rules and Regulations

1The Phoenix metropolitan area was recently

reclassified from moderate to serious for ozone. 62

FR 60001 (November 6, 1997). Today’s action

relates to the moderate area CAA requirements for

a 1990 base year inventory and a 15 percent ROP

demonstration. The reclassification does not affect

the area’s continuing obligation to meet these

requirements.

2The reader should consult this proposed rule for

a more detailed discussion of the CAA requirements

applicable to today’s final action, the State’s 15

percent ROP plans and EPA’s evaluation of them,

and EPA’s proposed 15 percent demonstration.

NEGOCIOS Y PROPIEDADES DEL CARIBE

LTDA., (f.k.a. NEGOCIAR LTDA.), Calle

74 No. 53–30, Barranquilla, Colombia;

NIT # 890108102–8 (Colombia) [SDNT]

PARQUE INDUSTRIAL LAS DELICIAS

LTDA., Carrera 7 No. 34–341, Cali,

Colombia; Carrera 7 No. 34–341 L–6,

Cali, Colombia [SDNT]

PROMOCIONES Y CONSTRUCCIONES DEL

CARIBE LTDA., Calle 74 No. 53–30,

Barranquilla, Colombia; Calle 78 No. 53–

70 Centro Comercial Villa Country,

Barranquilla, Colombia; Carrera 54 No.

72–80 Ejecutivo I, Barranquilla,

Colombia; Carrera 54 No. 72–147,

Barranquilla, Colombia; Carrera 55 No.

72–109 Piso 1, Barranquilla, Colombia;

Carrera 56 No. 70–60, Barranquilla,

Colombia; Carrera 57 No. 79–149,

Barranquilla, Colombia; NIT #

890108115–3 (Colombia) [SDNT]

PROMOCIONES Y CONSTRUCCIONES DEL

CARIBE LTDA. Y CIA. S.C.A., (a.k.a.

PROMOCON), Calle 74 No. 53–30,

Barranquilla, Colombia; Calle 78 No. 53–

70 Centro Comercial Villa Country,

Barranquilla, Colombia; Carrera 54 No.

72–80 L–21 Ejecutivo I, Barranquilla,

Colombia; Carrera 54 No. 72–147 L–115,

Barranquilla, Colombia; Carrera 55 No.

80–192, Barranquilla, Colombia; Carrera

55 No. 80–192 Ap. 6, Barranquilla,

Colombia; Apartado Aereo 50183,

Barranquilla, Colombia; Apartado Aereo

51110, Barranquilla, Colombia; NIT #

890108148–6 (Colombia) [SDNT]

PROMOTORA HOTEL BARRANQUILLA

LTDA., Calle 74 No. 53–30, Barranquilla,

Colombia; Apartado Aereo 51110,

Barranquilla, Colombia; NIT #

890111684–3 (Colombia) [SDNT]

SURAMERICANA DE HOTELES LTDA.,

(a.k.a. SURATEL), Calle 74 No. 53–30,

Barranquilla, Colombia; NIT #

800011603–0 (Colombia) [SDNT]

Dated: May 11, 1998.

R. Richard Newcomb,

Director, Office of Foreign Assets Control.

Approved: May 21, 1998.

James E. Johnson,

Assistant Secretary (Enforcement),

Department of the Treasury.

[FR Doc. 98–14176 Filed 5–26–98; 8:45 am]

BILLING CODE 4810–25–F

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[AZ–005–ROP FRL–6101–9]

Approval and Promulgation of

Implementation Plans; Phoenix,

Arizona Ozone Nonattainment Area, 15

Percent Rate of Progress Plan and

1990 Base Year Emission Inventory

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is determining, pursuant

to its federal planning authority in

Clean Air Act (CAA) section 110(c), that

the Phoenix, Arizona ozone

nonattainment area has in place

sufficient control measures to meet the

15 percent rate of progress (ROP)

requirement in Clean Air Act (CAA)

section 182(b)(2). EPA is also approving,

under CAA sections 110(k) and

182(a)(1), the 1990 base year emissions

inventory for the Phoenix metropolitan

area that was submitted to EPA by the

State of Arizona on April 1, 1993.

EFFECTIVE DATE: June 26, 1998.

ADDRESSES: Copies of the documents

relevant to this action, including the

technical support document (TSD), are

contained in the docket for this

rulemaking. The docket is available for

inspection during normal business

hours at the following locations:

U.S. Environmental Protection Agency,

Region 9, Office of Air Planning, Air

Division, 17th Floor, 75 Hawthorne

Street, San Francisco, California

94105. Phone: (415) 744–1248.

Arizona Department of Environmental

Quality, Library, 3033 N. Central

Avenue, Phoenix, Arizona 85012.

(602) 207–2217.

Copies of this notice and the TSD are

also available in the air programs

section of EPA Region 9’s website,

http://www.epa.gov/region09.

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, Office of Air Planning

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

Agency, Region 9, 75 Hawthorne Street,

San Francisco, California 94105. Phone:

(415) 744–1248. Email:

wicher.frances@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements

The Phoenix metropolitan area was

originally classified as a moderate ozone

nonattainment area on November 6,

1991.1 Section 182(b) of the Clean Air

Act (CAA or Act) requires that each

state in which all or part of a moderate

ozone nonattainment area is located

submit, by November 15, 1992, an

inventory of actual emissions from all

sources, as described in sections

172(c)(3) and 182(a)(1), in accordance

with guidance provided by the

Administrator. Section 182(b)(1)(A) of

the CAA also requires states with

moderate and above ozone

nonattainment areas to develop plans to

reduce volatile organic compounds

(VOC) emissions by 15 percent, net of

growth, from the 1990 baseline. The 15

percent rate of progress (ROP) plans

were to be submitted by November 15,

1993, and the reductions were required

to be achieved by November 15, 1996.

Although the November 15, 1996

deadline has now passed, the 15 percent

ROP requirement remains. Once a

statutory deadline has passed and has

not been replaced by a later one, the

deadline then becomes ‘‘as soon as

possible.’’ Delaney v. EPA, 898 F.2d

687, 691 (9th Cir. 1990). EPA has

interpreted this requirement to be ‘‘as

soon as practicable.’’ See the proposed

rule for this final action at 63 FR 3687

(January 26, 1998).2 This requirement is

discussed further in section II below.

B. Phoenix’s 15 Percent Plan

The State of Arizona submitted its

initial 15 percent rate of progress plan

for the metropolitan Phoenix area on

November 15, 1993 and supplemented it

on April 8, 1994. On April 13, 1994 EPA

found the initial plan incomplete

because it failed to include, in fully

adopted and enforceable form, all of the

measures relied upon in the 15 percent

demonstration. This incompleteness

finding started the 18-month sanction

‘‘clock’’ in CAA section 179 and the

two-year clock under section 110(c) for

EPA to promulgate a federal

implementation plan (FIP) covering the

15 percent ROP requirement.

Subsequently, in November 1994 and

April 1995, Arizona submitted an

attainment plan for the Phoenix area

which updated the 15 percent ROP

demonstrations.

On May 12, 1995, EPA found the

revised 15 percent plan and the

attainment plan complete, turning off

the sanctions clock; however, under

section 110(c), the FIP clock continues

until EPA approves the 15 percent plan.

Since 1995, EPA has acted to approve

many of the control measures relied

upon in this plan but has not yet acted

on the overall 15 percent plan.

The 15 percent ROP demonstration in

the State’s plan relied primarily on

improvements to the State’s vehicle

emissions inspection and maintenance

(I/M) program. Not all the emission

reductions attributed to the program

have been realized because of technical

problems with implementing certain

parts of the I/M program. In part to

replace these lost emission reductions
Federal Register / Vol. 63, No. 101 /Wednesday, May 27, 1998 /Rules and Regulations 28899

3EPA did at the same time propose to approve

under CAA section 110(k) the State’s 1990 Base

Year Emission Inventory. This inventory was

required by CAA section 182(a)(1) and was

submitted separately from the 15 percent plan. See

63 FR 3688.

and in part to ensure continued progress

toward attainment of the ozone standard

in the Phoenix area, the State opted into

EPA’s federal reformulated gasoline

(RFG) program in 1997 (60 FR 30260

(June 3, 1997)) and EPA recently

approved the State’s own, more

stringent Cleaner Burning Gasoline

(CBG) program which is intended to

replace the federal program. 63 FR 6653

(February 10, 1998).

C. EPA’s 15 Percent ROP Plan

In August 1996, EPA was sued by the

American Lung Association of Arizona

and others, American Lung Association

of Arizona, Inc. et al. v. Browner, No.

CIV 96–1856 PHX ROS (D. Ariz.) to

enforce EPA’s obligation under CAA

section 110(c) to promulgate a federal

plan for the 15 percent ROP

requirement. On July 8, 1997 a consent

decree was filed in the case establishing

a schedule of January 20, 1998 for

proposing and May 18, 1998 for

promulgating a 15 percent ROP plan.

EPA’s obligation to promulgate a federal

plan is relieved to the extent that it has

approved State measures.

The State’s 15 percent plan as revised

and submitted in 1993 through 1995

does not reflect the changes to the

control strategy necessitated by the

problems with the enhanced I/M

program and the implementation of the

federal RFG program, nor does it

include the recalculation of the target

emission level that EPA guidance

requires if post-1996 emissions

reductions (such as those from the RFG

program) are to be credited to the 15

percent plan. As a result, EPA has not

received a complete state submittal

containing a revised 15 percent ROP

demonstration that it could act on

without additional analysis, public

hearing and adoption by the State. Thus,

EPA is complying with the ALAA

consent decree today by promulgating,

pursuant to its CAA section 110(c) FIP

authority, a federal 15 percent ROP plan

for the Phoenix area.

D. Proposed Action

On January 26, 1998 (63 FR 3687),

EPA proposed to determine that the

Phoenix area will have sufficient

controls in place by no later than April

1, 1999 to meet the 15 percent rate of

progress requirement and that this date

is the most expeditious date practicable

for achieving the 15 percent target,

based on the set of controls EPA has

proposed for crediting in the 15 percent

demonstration and the unavailability of

any other practicable controls that could

advance the date. The technical basis for

this determination and the list of control

measures that provide the required 15

percent VOC reduction are summarized

in the proposal and are fully

documented in the technical support

document (TSD) that accompanies this

rulemaking.

EPA also proposed to approve the

1990 base year emissions inventory for

the Phoenix metropolitan area that was

submitted to EPA by the State of

Arizona on April 1, 1993. EPA’s review

of this inventory is also summarized in

the proposal and fully documented in

the TSD.

II. Public Comment and EPA Responses

EPA received only one set of

comments on its proposed

determination that the Phoenix, Arizona

ozone nonattainment area has in place

sufficient control measures to meet the

15 percent ROP requirement in CAA

section 182(b)(2). These comments were

submitted by the Arizona Center for

Law in the Public Interest (ACLPI) on

behalf of the plaintiffs in ALAA.

EPA has responded to most

significant comments below and has

provided full responses to all comments

in the TSD that accompanies this

rulemaking.

Comment: ACLPI claims that EPA’s

proposal is flawed because it does not

propose FIP measures as an alternative

to approving a State 15 percent plan,

and without such an alternative

proposal, EPA’s decision making

process here will be inherently biased,

unfair and violative of the

Administrative Procedures Act. ACLPI

states that the only way to negate this

bias and prejudgment is for EPA to

immediately propose a FIP, so that it

has an alternative to approval of the

State’s demonstration.

Response: This comment, as well as

others discussed below, reflects a basic

misapprehension of the nature of EPA’s

January 26, 1998 proposal. Contrary to

ACLPI’s claims, EPA did not propose to

approve or otherwise act on Arizona’s

15 percent SIP. Rather, the Agency

proposed a 15 percent ROP FIP under

its federal planning authority in CAA

section 110(c).3

Nowhere in the proposal did EPA

state or otherwise indicate that it was

proposing to approve the State’s 15

percent plan. In fact, in the section

discussing its FIP obligation under

ALAA, EPA concluded that it did ‘‘not

have in front of it a complete state

submittal containing a revised 15

percent ROP demonstration that it could

act on without additional analysis,

public hearing and adoption by the

State.’’ Emphasis added. 63 FR 3688. In

the conclusion section of the proposal,

EPA stated that it was acting pursuant

to its CAA section 110(c) authority in

proposing a determination that the

Phoenix metropolitan area has in place

sufficient control measures to meet the

15 percent ROP requirement. See 63 FR

3692. CAA section 110(c) provides

EPA’s authority to promulgate FIPs. In

contrast, EPA’s SIP approval authority

resides in section 110(k).

The proposed FIP consists of a federal

demonstration that already-approved

State and federal control measures,

combined with already-proposed federal

measures, are sufficient to provide for a

15 percent ROP in the Phoenix area as

required by CAA section 182(b)(1)(A)(i)

and that there are no other measures

which would meaningfully advance the

date by which the 15 percent ROP will

be met. See 63 FR 3692. As a

consequence of this finding, EPA did

not, and was not required to, propose

any additional federal measures.

EPA notes that this is not the first

time it has promulgated an Arizona FIP

that consists only of a demonstration

that existing State and federal measures

were adequate. In 1991, EPA

promulgated attainment and

maintenance demonstrations for the

Pima County (Tucson), Arizona carbon

monoxide (CO) nonattainment area that

consisted solely of a demonstration that

existing approved State and federal

measures were adequate for expeditious

attainment and long-term maintenance

of the CO standard in the area and that

no additional federal measures were

necessary. See 56 FR 5458, 5470

(February 11, 1991).

Comment: ACLPI asserts that if EPA

found that the State has not submitted

a complete 15 percent ROP

demonstration, it should have

disapproved it on that basis instead of

proceeding to supply its own data and

analysis to produce a showing on the

State’s behalf, an approach which

conflicts with the Act. ACLPI states that

EPA’s statutory duty is to approve or

disapprove what the state submits and

that EPA cannot write a plan and

pretend it is the State’s. Finally, ACLPI

states that Arizona has had more than

ample time to submit its 15 percent plan

and if the State’s demonstration is

inadequate, then EPA must disapprove

it and adopt a FIP.

Response: As discussed above, EPA

proposed a 15 percent ROP

demonstration under its federal

planning authority in CAA section

110(c) and did not propose any action

on Arizona’s 15 percent SIP. When
28900 Federal Register / Vol. 63, No. 101 /Wednesday, May 27, 1998 /Rules and Regulations

4Following the Delaney opinion, EPA revoked

certain portions of this guidance document in order

to clarify that the Agency did not intend to require

post-1987 plans to include every conceivable

control measure. 55 FR 38326 (September 18, 1990).

5 In its proposal of an attainment CO FIP for

Arizona, EPA restated its interpretation of the

Delaney test as requiring ‘‘a demonstration of

attainment as expeditiously as practicable utilizing

all measures available to the federal government

that are capable of advancing the attainment date,

short of those producing absurd results, such as

severe socioeconomic disruptions.’’ 55 FR 41204,

41210 (October 10, 1990).

acting in place of the State pursuant to

a FIP under section 110(c), EPA ‘‘stands

in the shoes of the defaulting State, and

all the rights and duties that would

otherwise fall to the State accrue instead

to EPA.’’ Central Arizona Water

Conservation District v. EPA, 990 F.2d

1531, 1541 (9th Cir. 1993). Thus, in

preparing this FIP demonstration, it is

EPA’s responsibility to supply its own

data and analyses of that data and to

produce the required showing that

would otherwise be the responsibility of

the State. Thus, the approach EPA took

in this rulemaking is fully consistent

with the Act.

EPA did base its proposed

determination in part on a reanalysis of

the State’s plan. This approach is

reasonable given that the State had

already prepared an extensive and

competent technical evaluation of

emission sources in the Phoenix area

and the effect of controls on reducing

emissions from those sources. In

preparing its own demonstration, EPA

did modify some of the information in

the State’s plan to reflect the actual

implementation status of the State’s I/M

program and the implementation of new

federal and state controls. However, a

federal plan based on technical

information contained in a State plan

does not constitute or imply approval of

that State plan.

Since no action was proposed in

regard to the State’s 15 percent ROP

plan, comments relating to the

appropriate disposition of that plan are

not relevant to this rulemaking. EPA

notes that it is not required in this

instance to disapprove the State plan

prior to promulgating a replacement FIP

under CAA section 110(c).

EPA acknowledges that it is required

by the Act to take action on submitted

SIPs. However, at this time inaction on

the State’s 15 percent plan in no way

affects EPA’s promulgation of this FIP.

Comment: ACLPI comments that EPA

is extending until April 1, 1999 the time

for achieving the 15 percent reduction

that was supposed to have been

achieved by November 15, 1996 and has

justified this lengthy extension by

adopting several policies that ACLPI

asserts are not consistent with

applicable case law or the Clean Air

Act.

First, ACLPI states that although it

agrees with EPA that Delaney v. EPA,

898 F.2d 687, 691 (9th Cir. 1990)

supplies the relevant test for compliance

once a statutory deadline has passed, it

disagrees with the Agency’s

interpretation that under the Delaney

case, the appropriate standard is ‘‘as

soon as practicable.’’ ACLPI notes that

the actual phrase used by the Delaney

court was ‘‘as soon as possible,’’ using

every available control measure and

asserts that the difference between

‘‘practicable’’ and ‘‘possible’’ is not

merely semantic. According to ACLPI,

‘‘practicability,’’ as used in the Act,

allows for consideration of various

economic and social factors in

determining the required speed of

progress. ACLPI believes that to say that

the pace for compliance after the Clean

Air Act deadline has passed is still as

soon as ‘‘practicable’’ is to read the

deadline out of the statute which is why

the Delaney court allegedly set a much

more stringent test—compliance as soon

as possible—for areas that miss a

statutory deadline.

Response: In Delaney, the Ninth

Circuit interpreted the Clean Air Act

requirement for EPA to develop a CO

federal implementation attainment plan

for two Arizona areas after the passage

of the then applicable statutory

attainment date of December 31, 1987.

The Court concluded that after the

passage of that date, ‘‘the national

ambient air quality standards must be

attained as soon as possible with every

available measure * * *.’’ 898 F.2d at

691. The Delaney Court arrived at this

test by relying on a statement in an EPA

guidance document providing that if a

state plan’s ‘‘control measures are not

adequate to demonstrate attainment by

1987, additional measures which can be

implemented after 1987 must be

identified and adopted and attainment

must be demonstrated by the earliest

possible date * * *. 46 Fed. Reg. 7186

(January 22, 1981).’’ 4 In another part of

the opinion concerning reasonably

available control measures, the Court

noted another EPA guidance document

specifying that a control measure would

be deemed not reasonably available if it

would not advance attainment, would

cause substantial widespread and longterm adverse impact, or would take too

long to implement. 898 F.2d at 692.

EPA believes that the appropriate

interpretation of Delaney’s ‘‘as soon as

possible’’ test is informed by the Court’s

acknowledgment of certain limitations

on the speed of compliance as expressed

in its citation of the guidance related to

the scope of reasonably available

measures. Therefore, consistently since

the Ninth Circuit’s opinion, EPA has

framed the ‘‘as soon as possible’’

Delaney test, in the post-statutory

attainment deadline context, to mean

‘‘ ‘as expeditiously as practicable,’ by a

fixed date,’’ and has stated that ‘‘[t]he

statute does not require measures that

are absurd, unenforceable, or

impracticable.’’ 55 FR 36458, 36505

(Sept. 5, 1990).5 In addition to applying

this interpretation of the Delaney test to

attainment plans after the passage of the

statutory attainment deadline, the

Agency has also consistently applied it

in its actions on plans that address the

15 percent requirement following the

November 15, 1996 statutory deadline

for these plans. See, e.g., 62 FR 31343,

31345–31346 (June 9, 1997) approving

the 15 percent ROP SIP for

Philadelphia; 62 FR 33999, 34000–

34001 (June 24, 1997) approving the 15

percent ROP SIP for the northern

Virginia.

Moreover, EPA notes that one court,

while finding Delaney not precisely on

point for its purpose of fashioning a

remedy in a citizen’s enforcement

action, nevertheless made some

instructive observations on the

relationship between the two standards.

The Court noted that:

although the Delaney opinion utilized the

‘as soon as possible’ standard employed by

EPA guidelines, it did not do so out of

rejection of the ‘practicable’ standard or out

of concern that the two standards differed.

Rather it simply had no occasion to compare

them. Indeed the Delaney court appeared to

blur them when it criticized Arizona for

rejecting measures without demonstrating

that such measures were ‘impracticable’ or

unreasonable.

Citizens for a Better Environment v.

Deukmejian, 746 F. Supp. 976, 985

(N.D. Cal. 1990). The Court went on to

observe that:

[a]s a practical matter, however, no Court

will use its equitable powers to impose

remedies that are irrational, albeit ‘‘possible.’’

Thus as long as time is considered

paramount, and the term ‘‘practical’’ is

strictly construed in keeping with the

purposes of the Act, the ‘‘as expeditiously as

practicable’’ standard should yield no less

results than an ‘‘as soon as possible’’

standard.

The Court concluded that ‘‘when

properly interpreted, there is no

practical difference between the two

standards.’’ Id. EPA agrees with this

assessment.

Furthermore, while EPA believes that

it is consistent with the Delaney test to

take into account socioeconomic factors

as described above, the issue is

effectively moot with regard to this
Federal Register / Vol. 63, No. 101 /Wednesday, May 27, 1998 /Rules and Regulations 28901

rulemaking. In proposing, for the

purposes of its 15 percent

demonstration, that ‘‘as soon as

practicable’’ is April 1, 1999, the

Agency did not consider any economic

or social factors. Rather the factors EPA

considered were the Agency’s authority

and resources to implement a measure,

whether the measure provided a

significant emission reduction, and

whether the measure could be

implemented soon enough to

meaningfully advance the date by which

the 15 percent reduction could be

demonstrated. The Agency believes, as

discussed above and in response to an

additional comment below, that the

consideration of these factors is entirely

appropriate and consistent with both

the Clean Air Act and the Delaney

opinion.

Comment: ACLPI comments that in its

proposed action, EPA asserted that the

15 percent ROP need not be achieved

until April 1, 1999 because (a) that is

the soonest such reductions will be

achieved under the State’s adopted

programs and various adopted and

proposed EPA programs and (b) no

other measures are available that would

reduce VOC emissions by more than 0.5

percent or advance achievement of the

15 percent ROP by three or more

months. ACLPI asserts that there is

nothing in the Clean Air Act or Delaney

that allows de minimis exemptions for

percent reductions or months of delay.

Response: The inherent authority of

administrative agencies to exempt de

minimis situations from a statutory

requirement has been upheld in

contexts where an agency is invoking a

de minimis exemption as ‘‘a tool to be

used in implementing the legislative

design when ‘‘the burdens of regulation

yield a gain of trivial or no value.’’

Alabama Power Co. v. Costle, 636 F.2d

323, 360–61 (D.C. Cir. 1979).

In this rulemaking, EPA has invoked

this de minimis doctrine for gauging

when the promulgation of a new control

would or would not contribute to

meeting the statutory requirement for a

15 percent ROP in the Phoenix area as

soon as is practicable. EPA has

interpreted the ‘‘as soon as practicable’’

test to require a showing that the

applicable implementation plan

contains all VOC control measures that

are practicable for the area and that

meaningfully accelerate the date by

which the 15 percent level is achieved.

Measures that provide only an

insignificant additional amount of

reductions or could not be implemented

soon enough to meaningfully advance

the date by which the 15 percent is

demonstrated are not required to be

implemented. See Memorandum, John

S. Seitz, Director of the Office of Air

Quality Planning and Standards, and

Richard B. Ossias, Deputy Associate

General Counsel to Regional Air

Division Directors; ‘‘15 Percent VOC SIP

Approvals and the ‘As Soon As

Practicable’ Test;’’ February 12, 1997.

For determining whether additional

measures were necessary for this

demonstration, EPA proposed to define

‘‘significant emission reduction’’ to be

equal to or more than one-half of one

percent (0.5 percent) of the total

emission reductions needed to meet the

15 percent ROP requirement in 1999 for

the Phoenix nonattainment area, the

equivalent of 0.5 metric tons per day

(mtpd). Thus any measures that would

result in less than a 0.5 mtpd reduction

by April 1, 1999 were considered to

yield de minimis reductions and were

rejected from further review.

In the context of this rulemaking

where the 15 percent ROP will be

achieved within one year, 0.5 mtpd is

truly de minimis, representing one twohundredths of the emission reductions

needed to show the 15 percent ROP. In

terms of control requirements, more

than 200 of these ‘‘de minimis’’

measures would be needed to

demonstrate 15 percent ROP in Phoenix.

The federal imposition of a measure or

group of measures with so little impact

on the ROP demonstration would be

nonsensical. Thus a regulation imposing

one of these de minimis measures

would indeed yield ‘‘a gain of trivial or

no value.’’ As such, a de minimis

exemption is an entirely ‘‘appropriate

tool to be used in implementing the

legislative design’’ of the CAA’s rate of

progress and general FIP requirements.

Alabama Power at 360.

EPA proposed to define

‘‘meaningfully accelerate the date by

which the 15 percent is demonstrated’’

as three or more months. EPA has

projected that the 15 percent ROP will

be demonstrated in the Phoenix area by

April 1, 1999. Therefore, if a measure

could advance that demonstration date

to on or before January 1, 1999, then

EPA would consider that the measure

meaningfully accelerated the 15 percent

ROP. In the proposal, EPA explained its

selection of three months as a balance

between the environmental benefit of

advancing the date and the potential to

trivialize the ‘‘as soon as practicable’’

demonstration. 63 FR 3687, 3691.

The 15 percent ROP progress

requirement is part of the Act’s overall

scheme for ozone attainment. In

Phoenix, ozone exceedances occur

during the hot-weather months of May

through October. EPA’s proposed three

month ‘‘de minimis’’ period (January 1

to April 1) falls well before the

beginning of this season and as a result

the ozone benefit of additional controls

during this period would be at best,

exceedingly small. Thus, the federal

implementation of a measure or

measures whose sole effect would be to

advance by less than 3 months from the

April 1, 1999 date on which the 15

percent ROP is met, would clearly yield

‘‘a gain of trivial or no value.’’

EPA does not agree that Delaney bars

the use of de minimis exemptions. As

discussed previously, the Delaney court

itself recognized limits on its conclusion

that once a statutory deadline has

passed the new deadline becomes ‘‘as

soon as possible with all available

measures.’’ These limits include not

requiring measures that would not

advance attainment, would cause

substantial widespread and long-term

adverse impact, or would take too long

to implement. These limits clearly

indicate that the Delaney court did not

expect EPA to impose controls that

yield no benefit or a benefit that is

outweighed by the implementation

burden. Thus, EPA’s use of de minimis

exemptions is consistent with Delaney.

Comment: ACLPI notes that EPA

predicts that the State will meet the 15

percent reduction target by April 1,

1999 with just 0.3 tons per day to spare

and argues that this is not a credible

demonstration given the size of the

inventory and the many uncertainties in

EPA’s emission reduction predictions.

ACLPI asserts that the record here

shows that emission reductions

expected from control measures do not

always materialize.

Response: The statutory requirement

for 15 percent ROP demonstrations is

met when the plan demonstrates that it

achieves ‘‘at least a 15 percent’’

reduction. See section 182(b)(1)(A)(i).

Neither the Act nor EPA guidance

requires 15 percent ROP demonstrations

to include a margin of safety; therefore,

reductions greater than the exact

amount needed to demonstrate the 15

percent ROP are not required. As a

result, the amount of excess emissions

in the 15 percent demonstration is

immaterial.

Both the base year inventory used to

calculate the 15 percent target emission

level and the projected emission

inventories and emission reduction

calculations were prepared using

generally-accepted methodologies

consistent with Agency guidance. See

the TSD for this rulemaking. As such,

they provide a credible and appropriate

basis for the 15 percent demonstration

and additional adjustments to account

for uncertainties are not warranted or

required. EPA notes that it already

factored into its 15 percent ROP
28902 Federal Register / Vol. 63, No. 101 /Wednesday, May 27, 1998 /Rules and Regulations

demonstration available information on

the implementation status of the control

measures.

Because ACLPI neither explains how

the size of the inventory relates to the

credibility of the demonstration nor

provides specifics on the ‘‘many

uncertainties in EPA’s emission

reduction predictions’’ or instances

where the emission reductions may not

materialize, EPA is not able to further

respond to this comment.

Comment: ACLPI comments that EPA

proposed to credit 4.4 tons per day in

emission reductions from three federal

rulemakings that are still at the proposal

stage and asserts that such an approach

violates the Act and EPA policy. ACLPI

supports that assertion by stating that

under section 182(b)(1)(c) of the Act,

credit can be claimed only for rules

‘‘promulgated’’ by EPA and that EPA

policy and the Act also forbid the

granting of emission reduction credit for

measures that have not been legally

adopted. ACLPI further argues that there

is no assurance whatsoever that the

proposed rules will be adopted in a

form and on a schedule that will assure

the projected emission reductions and

without the credit claimed for these

measures, the ROP plan does not

demonstrate the required 15 percent

reduction and therefore is legally

deficient.

Response: Consistent with the Clean

Air Act, its policies and its actions on

other 15 percent plans, EPA is crediting

three proposed national rules in this 15

percent demonstration: consumer

products, autobody refinishing and

architectural and industrial

maintenance coatings. As noted in the

proposal, each of these rules are

required under CAA section 183(e) and

the Agency had recently been sued to

enforce the requirement to promulgate

these rules. Since the proposal the

Agency has agreed to a schedule for

their promulgation by August 15, 1998.

See lodged consent decree in Sierra

Club v. Browner, CIV No. 97–984 PLF

(D.D.C.).

CAA section 182(b)(1)(A) requires

states to submit their 15 percent SIP

revisions by November, 1993. Section

182(b)(1)(C) provides the following

general rule for creditability of

emissions reductions towards the 15

percent requirement: ‘‘emissions

reductions are creditable toward the 15

percent required * * * to the extent

they have actually occurred, as of

[November, 1996], from the

implementation of measures required

under the applicable implementation

plan, rules promulgated by the

Administrator, or a permit under Title

V.’’ CAA section 182(b)(1)(D) further

states that certain emissions reductions

are not creditable, including reductions

from certain control measures required

prior to the 1990 Amendments.

These creditability provisions are

ambiguous. Read literally, they provide

that, although the 15 percent SIPs are

required to be submitted by November

1993, emissions reductions are

creditable as part of those SIPs only if

‘‘they have actually occurred, as of

[November 1996]’’. This literal reading

renders the provision internally

inconsistent. Accordingly, EPA believes

that the provision should be interpreted

to provide, in effect, that emissions

reductions are creditable ‘‘to the extent

they will have actually occurred, as of

[November, 1996], from the

implementation of [the specified

measures]’’ (the term ‘‘will’’ is added).

This interpretation renders the

provision internally consistent.

CAA section 182(b)(1)(C) explicitly

includes as creditable reductions those

resulting from ‘‘rules promulgated by

the Administrator.’’ This provision does

not state the date by which those

measures must be promulgated, i.e.,

does not indicate whether the measures

must be promulgated by the time the 15

percent SIPs were due (November,

1993), or whether the measures may be

promulgated after this due date.

Because the statute is silent on this

point, EPA has discretion to develop a

reasonable interpretation under Chevron

U.S.A. Inc. v. NRDC, 467 U.S. 837, 104

S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA

believes it reasonable in the first

instance to interpret CAA section

182(b)(1)(C) to allow areas to credit

reductions from federal measures as

long as those reductions are expected to

occur by November, 1996, the date for

achieving the 15 percent ROP, even if

the federal measures are not

promulgated by the November, 1993

due date for the 15 percent SIPs.

EPA’s interpretation is consistent

with the Congressionally-mandated

schedule for promulgating regulations

for consumer and commercial products,

under section 182(e) of the Act. This

provision requires EPA to promulgate

regulations controlling emissions from

consumer and commercial products that

generate emissions in nonattainment

areas. Under the statutory schedule, by

November, 1993—the same date that the

States were required to submit the 15

percent SIPs—EPA was to issue a report

and establish a rulemaking schedule for

consumer and commercial products.

Further, EPA was to promulgate

regulations for the first set of consumer

and commercial products by November,

1995. It is reasonable to conclude that

Congress anticipated that reductions

from these measures would be

creditable as part of the 15 percent SIPs,

as long as those reductions were to

occur by November, 1996.

EPA has also established specific

policies interpreting the Act that allow

crediting of these proposed national

measures in 15 percent plans. See

Memorandum, John S. Seitz, Director,

OAQPS to Regional Air Division

Directors; ‘‘Credit for the 15 Percent

Rate-of-Progress Plans for Reductions

from the Architectural and Industrial

Maintenance Coating Rule and the

Autobody Refinishing Rule;’’ November

29, 1994; Memorandum, John S. Seitz,

Director, OAQPS to Regional Air

Division Directors; ‘‘Credit for the 15

Percent Rate-of-Progress Plans for

Reductions from the Architectural and

Industrial Maintenance (AIM) Coating

Rule;’’ March 22, 1995; Memorandum,

John S. Seitz, Director, OAQPS to

Regional Air Division Directors;

‘‘Regulatory Schedule for Consumer and

Commercial Products under Section

182(e) of the Clean Air Act;’’ June 22,

1995; and Memorandum, John S. Seitz,

Director of the Office of Air Quality

Planning and Standards, and Richard B.

Ossias, Deputy Associate General

Counsel to Regional Air Division

Directors; ‘‘15 Percent VOC SIP

Approvals and the ‘As Soon As

Practicable’ Test;’’ February 12, 1997.

While this analysis focuses on SIPs, it

applies equally to FIPs. As noted before,

EPA ‘‘stands in the shoes of the State’’

when promulgating a FIP and all the

rights and duties available to a state

under the Act become available to EPA

in a FIP.

The above analysis also describes

statutory provisions that include

specific dates for 15 percent SIP

submittals (November 15, 1993) and

implementation (November 15, 1996).

While these dates have expired and new

dates for submittal (in this case,

promulgation) and implementation have

been developed, EPA does not believe

that the expiration of the statutory dates,

and the development of new ones,

invalidates the conclusion that

reductions from federal measures

promulgated after the date the 15

percent plan is submitted (or

promulgated) can be counted toward the

ROP demonstration.

Because it has agreed to a schedule in

a proposed consent decree to

promulgate these national rules by

August 15, 1998, EPA intends to

promulgate the rules within 3 months of

this FIP promulgation and well before

the April 1, 1999 15 percent ROP

demonstration date. As a result,

crediting reductions from these federal

measures is also sensible from an
Federal Register / Vol. 63, No. 101 /Wednesday, May 27, 1998 /Rules and Regulations 28903

6The statutory requirement EPA is fulfilling here

is to demonstrate a fixed emission reduction of 15

percent from 1990 base year levels. Emission

reductions in excess of this fixed amount are

unnecessary. Since EPA has already concluded that

the proposed national measures combined with

other adopted state and federal measures will result

in the required 15 percent ROP as soon as

practicable, additional Phoenix-only federal

measures are not necessary.

7 In its rulemakings, EPA strives to take the least

intrusive and most sensible regulatory approach

that achieves the statutory requirements. In this

situation, it made no regulatory sense to ignore

these pending national measures (which have

already been proposed and have near-term date for

promulgation) that will apply automatically to

Phoenix in favor of promulgating wholly new

Phoenix-specific measures.

administrative standpoint. If it did not

credit these national measures, EPA

would need to promulgate

compensating rules, applicable only to

Phoenix, to replace their 4.4 mtpd

benefit. EPA has already shown that

there are no other measures available

that would meaningfully advance the

April 1999 date by which the 15 percent

ROP is demonstrated in the Phoenix

area, thus any additional measures

would not result in reductions any

sooner than the proposed national rules.

Nor would these potential Phoenix-only

measures result in any greater

reductions creditable to the 15 percent

plan since they would simply substitute

for the reductions from the national

rules.6 Thus, if it did not credit the

national measures, EPA would simply

be engaging in a wasteful rulemaking

exercise to promulgate measures in

May, 1998 that it could almost

immediately withdraw when the

national rules are promulgated in

August, 1998.7

The fact that EPA cannot determine

precisely the amount of credit available

for the proposed national measures does

not preclude granting them credit. The

credit can be granted as long as EPA is

able to develop reasonable estimates of

the amount of VOC reductions from the

measures EPA expects to promulgate.

EPA believes that it is able to develop

reasonable estimates, particularly

because it has already proposed and

taken comment on the measures at

issue, and is expecting to promulgate

final rules in little less than 3 months.

Moreover, the use of estimated

emissions and emission reductions

rather than actual measurements is a

common and necessary practice in

attainment and reasonable further

progress demonstrations because actual

measurements, even for promulgated

measures, are seldom available. For

example, EPA’s document to estimate

emissions, ‘‘Compilation of Air

Pollutant Emission Factors’’, January

1995, AP–42), provide emission factors

used to estimate emissions from various

sources and source processes. AP–42

emission factors have been used, and

continue to be used, by states and EPA

to determine base year emission

inventory figures for sources and to

estimate emissions from sources where

such information is needed.

This rulemaking is based on the best

information currently available to the

Agency on the projected reductions

from these proposed national rules. If

these projected reductions turn out to be

greater than the amount it determines to

be appropriate after promulgation of the

final rules, then EPA will take

appropriate action to revise this 15

percent demonstration.

Comment: ACLPI argues that contrary

to EPA’s assertion there are a number of

additional control measures that are

currently available to advance the time

for achieving the 15 percent ROP

including the use of California’s diesel

fuel standards (‘‘CARB diesel’’) and

additional controls on consumer

products, both of which are identified in

the Report of the Arizona Governor’s Air

Quality Strategies Task Force (1998)

(‘‘1998 Task Force Report’’) as are a

number of other measures.

Response: ACLPI is correct that the

1998 Task Force Report shows that

adoption of the CARB diesel fuel

standards would reduce Phoenix VOC

emissions by 7.1 mtpd in 1999. The

report, however, also states that

implementation of this measure would

require at least two years and thus could

not occur prior to mid-2000, more than

a year after the April 1, 1999

demonstration date for the 15 percent

ROP. The State’s consultant concluded

that the two-year implementation

schedule was the minimum necessary

after reviewing the refining capacity

available to produce CARB diesel fuel

for the Phoenix market. See 1998 Task

Force Report, p. 77. Since EPA has no

grounds to dispute the consultant’s

conclusions (which were endorsed by

the Task Force) regarding the minimum

implementation schedule for CARB

diesel, it finds the measure would not

advance the date by which the 15

percent ROP would be met.

The Task Force recommended

adoption of California’s phase I and

phase II consumer product standards.

These standards are more stringent than

EPA’s proposed national standards for

13 product categories not currently

regulated in Phoenix: single phase

aerosol air fresheners, engine

degreasers, solid or paste forms of

furniture maintenance products, nonaerosol forms of glass cleaners,

hairsprays, aerosol insect repellants,

nail polish removers, automotive brake

cleaners, aerosol dust aids, fabric

protectants, crawling bug insecticides,

and personal fragrance products.

Except for hairsprays, California’s

more stringent limits are already in

place. The compliance date for the final

VOC limit for hairsprays is June 1, 1999,

two months after the April 1, 1999

demonstration date for 15 percent ROP

in Phoenix. The majority of the

emission reductions (or approximately

0.9 metric tons per day) that would

result from implementing CARB’s

consumer products rule in Phoenix

come from the final hairspray standard.

The balance of the tighter CARB limits

produce only a 0.23 mtpd reduction,

which EPA finds to be de minimis.

The 1998 Governor’s Task Force

evaluated and recommended controls

for not only VOC but also nitrogen

oxides, carbon monoxide, particulate

matter and regional haze. These controls

range from I/M program improvements

to improved compliance with the area’s

fugitive dust rules and include

numerous study proposals (e.g., Transit

Task Force). Since ACLPI was not

specific about what additional control

measures EPA should evaluate for this

plan, it is not possible for EPA to

respond in more detail to this comment.

III. Conclusion

Pursuant to its federal planning

authority under CAA section 110(c) and

for the reasons discussed above, EPA is

determining that the Phoenix

metropolitan area has in place or will

have in place sufficient control

measures to meet the 15 percent ROP

requirement for VOCs in CAA section

182(b)(1)(A) as soon as practicable.

EPA is also approving the State’s 1990

base year inventory for the Phoenix area

under CAA sections 110(k)(2) and

182(a)(1).

Under 40 CFR 93.118(e), this final

action establishes a VOC conformity

budget of 76.7 metric tons per average

summer day based on the inventory

methodology and mobile source

emissions model used for this 15

percent ROP demonstration. This

conformity budget is in addition to, and

not in lieu of, the conformity budget

established in the MAG 1993 Ozone

Plan for the Maricopa County Area,

Modeling Attainment Demonstration

(October 1994).

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget

has exempted this action from E.O.

12866 review.
28904 Federal Register / Vol. 63, No. 101 /Wednesday, May 27, 1998 /Rules and Regulations

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. Section 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.

sections 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-for-profit enterprises, and

government entities with jurisdiction

over populations of less than 50,000.

This action simply presents the

analysis of the emission impacts on the

Phoenix metropolitan area of already

adopted or proposed State and federal

rules. This action neither promulgates

additional measures nor requires

Arizona or its local jurisdictions to

adopt or implement additional measures

beyond those that they currently have

adopted and implemented or have been

proposed or implemented at the federal

level. As such, it does not regulate any

entities. Therefore, pursuant to 5 U.S.C.

605(b), EPA certifies that today’s action

does 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), P.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 section] 202’’, EPA must

identify and consider a reasonable

number of regulatory alternatives and

either adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule,

or explain why a different alternative

was selected.

As explained above, sections 202,

203, 204, and 205 of UMRA do not

apply to today’s action because it does

not impose an enforceable duty on or

otherwise affect any entity. Therefore,

EPA is not required, and has not taken,

any actions under UMRA.

D. E.O. 13045: Protection of Children

From Environmental Health Risks and

Safety Risks

Executive Order 13045, entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885 (April 23, 1997)),

applies to any rule that EPA determines

(1) ‘‘economically significant’’ as

defined under E.O. 12866 and (2) the

environmental health or safety risk

addressed by the rule has a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children; and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

Today’s final action promulgating a

demonstration that the Phoenix area

meets the 15 percent VOC ROP

requirement in CAA section

182(b)(1)(A)(i) is not subject to E.O.

13045 because it is not an economically

significant regulatory action as defined

by E.O and because it does not involve

decisions on environmental health risks

or safety risks that may

disproportionately affect children.

E. Submission to Congress and the

General Accounting Office

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major’’ rule as defined by 5 U.S.C.

804(2).

F. 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 July 27, 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, Intergovernmental

relations, Ozone.

Dated: May 18, 1998.

Carol M. Browner,

Administrator.

Title 40, Chapter I of the Code of

Federal Regulations 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

2. Section 52.123 is amended by

adding paragraph (g) to read as follows:

§ 52.123 Approval status.

* * * * *

(g) Pursuant to the federal planning

authority in section 110(c) of the Clean

Air Act, the Administrator finds that the

applicable implementation plan for the

Maricopa County ozone nonattainment

area demonstrates the 15 percent VOC

rate of progress required under section

182(b)(1)( A)(i).

[FR Doc. 98–13984 Filed 5–26–98; 8:45 am]

BILLING CODE 6560–50–P