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Finding of Failure To Submit Required State Implementation Plans for Ozone; Texas; Dallas/Fort Worth Ozone Nonattainment Area
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[Federal Register: June 2, 1999 (Volume 64, Number 105)]
[Rules and Regulations]
[Page 29570-29573]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn99-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX 107-1-7407; FRL-6349-3]
Finding of Failure To Submit Required State Implementation Plans
for Ozone; Texas; Dallas/Fort Worth Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: We, the EPA, are taking final action to find that the State of
Texas failed to submit the required State Implementation Plan (SIP) for
the Dallas/Fort Worth (DFW) ozone nonattainment area, as required by
the Federal Clean Air Act (Act). The required submittal is the serious
area plan requirements for attainment of the ozone National Ambient Air
Quality Standards (NAAQS). The deadline for the State to make the
submittal was
[[Page 29571]]
March 20, 1999. The State submitted a SIP for the DFW area on March 18,
1999. The submittal included an attainment demonstration, a Rate-Of-
Progress (ROP) Plan, and revisions to the State's rules for Nitrogen
Oxides (NOX) and Volatile Organic Compounds (VOC) Reasonably
Available Control Technology (RACT), and NOX New Source
Review, to make them applicable to the DFW area. We find that the
attainment demonstration is incomplete because it does not demonstrate,
based on photochemical modeling, that the SIP will result in attainment
as expeditiously as practicable but no later than November 15, 1999, as
required by the Act. We find that the ROP Plan is incomplete because it
does not demonstrate a rate of progress in emission reductions of at
least three percent-per-year, after accounting for growth, during the
1997 to 1999 period as required by the Act. The finding of an
incomplete submittal for the attainment demonstration and the ROP Plan
triggers the 18-month time clock for mandatory application of sanctions
and a two-year time clock for a Federal Implementation Plan (FIP) under
the Act. This action is consistent with the Act's mechanism for
assuring timely SIP submissions.
EFFECTIVE DATE: May 13, 1999.
ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the following
locations. Anyone wanting to examine these documents should make an
appointment with the appropriate office at least two working days in
advance.
Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, Office of Air
Quality, 12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Herbert R. Sherrow, Jr. of the EPA
Region 6 Air Planning Section at (214) 665-7237 or at the address
above.
SUPPLEMENTARY INFORMATION:
I. Final Action
What Action is EPA Taking?
We find that the State of Texas failed to submit by March 20, 1999,
all elements of the SIP revisions necessary for the DFW ozone
nonattainment area to meet the Act's serious area plan requirements for
the 1-hour ozone NAAQS under section 182(c).
The elements that the State failed to submit are a complete
attainment demonstration as required by section 182(c)(2)(A)and a
complete post-1996 ROP Plan under section 182(c)(2)(B) and (C).
This finding starts the sanctions clocks in section 179(a) and FIP
clock in section 110(c). If Texas has not corrected and resubmitted the
complete serious area plan elements by November 13, 2000, the offset
sanction in section 179(b)(2) and 40 CFR 52.31 will be imposed on the
DFW nonattainment area. If Texas still has not corrected and
resubmitted the complete serious area plan elements by May 14, 2001,
the highway funding sanction in section 179(b)(1) will also be imposed
in accordance with the Act and 40 CFR 52.31. Also, section 110(c) of
the Act requires EPA to promulgate a FIP no later than two years after
a finding of failure to submit.
What is the Effective Date for This Rule?
The effective date for this rule is May 13, 1999, the date this
action was signed.
The EPA is treating this action as a ``rule.'' Under the
Administrative Procedures Act (APA), 5 U.S.C. 553(d)(3), agency rule
makings may take effect before 30 days after the date of publication in
the Federal Register if an agency has good cause to mandate an earlier
effective date. This action concerns implementation plan submittals
that are already overdue and for which the State of Texas has submitted
some incomplete elements. We have previously alerted Texas through our
public comments and meetings that the SIP submittal, as proposed, would
not be complete. Also, on May 3, 1999, we sent a letter to Texas
stating that we were planning to take the action we are taking today.
Consequently, the State has been on notice that today's action was
pending. The State and general public are aware of applicable
provisions of the Act that relate to failure to submit a required
implementation plan. In addition, this action simply starts a
sanctions/FIP clock that will not result in offset sanctions for 18
months and that the State may stop by submitting a serious ozone area
implementation plan that is complete under section 110(k) of the Act
and approvable under section 110 and part D of the Act. These reasons
support an effective date prior to 30 days after the date of
publication.
Why is EPA Taking This Action Without Proposing and Taking Comments
First?
This action is a final agency action but is not subject to the
notice-and-comment requirements of the APA, 5 U.S.C. 553(b). We believe
that, because of the limited time provided to make findings of failure
to submit regarding SIP submittals, Congress did not intend such
findings to be subject to notice-and-comment rulemaking. However, to
the extent such findings are subject to notice-and-comment rulemaking,
we invoke the good cause exception in the APA, 5 U.S.C. 553(b)(3)(B).
Notice and comment are unnecessary because no EPA judgment is involved
in making a nonsubstantive finding of failure to submit elements of an
implementation plan required by the Act. Furthermore, providing notice
and comment would be impracticable because of the limited time provided
under the Act for making such determinations.
Finally, notice and comment would be contrary to the public
interest because it would divert our resources from the critical
substantive review of submitted implementation plans. See 58 FR 51270,
51272, note 17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994).
II. Background
Why is This SIP Submittal Required?
We reclassified the DFW area from moderate to serious ozone status
on February 18, 1998, since the area had not attained the NAAQS by
November 15, 1996 (63 FR 8128). As a result, the State was required to
submit a serious area SIP by March 20, 1999. The SIP required
attainment and rate of progress demonstrations and revised rules for
major source thresholds and a more stringent New Source Review program.
The state submitted revisions to its rules for NOX RACT,
NOX NSR, and VOC RACT with the March 18, 1999, submittal. We
have reviewed these rules for administrative completeness and found
them complete on the date of completeness finding. We will take action
on them in separate Federal Register notices.
The State had already submitted the other elements of a serious
area plan (e.g.; enhanced Inspection and Maintenance Program and a
Clean Fuel Fleet program).
Why is the Attainment Demonstration and the Rate-of-Progress Plan
Incomplete?
The attainment demonstration is incomplete because it does not
demonstrate, based on photochemical modeling, that the SIP will result
in attainment as expeditiously as practicable but no later than
November 15, 1999 (section 182(c)(2)(A)). The photochemical modeling
submitted is sensitivity modeling which only identifies emission
reduction targets
[[Page 29572]]
with no specific control strategy or attainment date.
The ROP Plan is incomplete because it does not demonstrate a rate
of progress in emission reductions of at least three percent-per-year,
after accounting for growth, during the 1997 to 1999 period (section
182(c)(2)(B)). The plan shows a VOC target of 28.68 tons per day and
reductions of 22.81 tons per day which leaves the plan 5.87 tons per
day short of meeting the target. The plan does not substitute
NOX reductions and meet the target (section 182(c)(2)(C).
The Plan's NOX table, on its face, considers NOX
reductions but those NOX reductions do not offset growth in
NOX emissions since 1990; therefore, they are not creditable
to the shortfall.
What are the Consequences of This Action?
The Act establishes specific consequences if a state fails to
submit a required SIP. These consequences include the mandatory
sanctions provision in section 179(a)(1) and the federal planning
requirement in section 110(c).
Under section 179(a) and 40 CFR 52.31, if Texas has not corrected
the incomplete elements and resubmitted a complete SIP within 18 months
of the effective date of today's rulemaking, the 2 to 1 offset sanction
of section 179(b) will apply in the DFW nonattainment area. This
sanction requires a company that is constructing a new or modifying an
existing facility over a certain size to reduce emissions in the area
by two tons for every new ton the new/modified facility will emit.
If the State has still not corrected the incomplete elements and
resubmitted a complete SIP six months after the offset sanction is
imposed, then the highway approval and funding sanction will apply in
the nonattainment area. This sanction prohibits the U.S. Department of
Transportation from approving or funding all but a few specific types
of transportation projects.
The order of sanctions, offsets sanctions first then highway
sanctions, is documented in our regulations at 40 CFR 52.31.
In addition to these sanctions, section 110(c) requires us to issue
a FIP no later than two years after a finding under section 179(a).
This FIP would need to address any outstanding serious area ozone
requirements for an attainment demonstration and a ROP Plan that we had
not yet approved.
The sanctions will not be imposed if, prior to the implementation
date of the offset sanction, we determine that the State has submitted
a complete plan addressing the two incomplete elements of the serious
area ozone requirements for the DFW area. If the state relies on the
control measures in the existing approved contingency plan for its ROP
Plan and/or attainment demonstration, the State would also need to
submit a new contingency plan. In addition, we are not required to
promulgate a FIP if the State makes the required SIP submittals and we
take final action to approve the submittals within two years of the
effective date of today's finding.
This preamble merely summarizes the Act's requirements for serious
ozone area plans and the Act's provisions regarding the consequences of
the failure to submit a required implementation plan. The specific
language of the Act and our regulations and policies interpreting the
Act, rather than the language of this document, govern the exact
submittals required from the State and the implementation of any
sanctions.
III. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 12875: Enhancing The Intergovernmental Partnership
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a State, local or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to the OMB a description
of the extent of EPA's prior consultation with representatives of
affected State, local and tribal governments, the nature of their
concerns, copies of any written communications from the governments,
and a statement supporting the need to issue the regulation. In
addition, E.O. 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's rule does not create a mandate on State, local, or tribal
governments. The rule does not impose any enforceable duties on any of
these entities. This action implements EPA's requirements to review
SIPs for completeness under 40 CFR Part 51, Appendix V. The SIP
submission requirements for stopping clocks are not judicially
enforceable. Accordingly, the requirements of section 1(a) of E.O.
12875 do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) is determined to be ``economically
significant'' as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to E.O. 13045
because it is not an economically significant regulatory action as
defined by E.O. 12866, and it does not establish a further health or
risk-based standard because it implements a previously promulgated
health or safety-based standard.
D. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to the OMB, in a separately identified section of the preamble
to the rule, a description of the extent of EPA's prior consultation
with representatives of affected tribal governments, a summary of the
nature of their concerns, and a statement supporting the need to issue
the regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide
[[Page 29573]]
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. Since this final rule is not subject to
notice-and-comment requirements under the APA, or any other statutes,
it is not subject to sections 603 or 604 of the RFA. Furthermore, this
action will not have a significant impact on a substantial number of
small entities because these findings under section 110 and subchapter
I, part D of the Act do not, in-and-of-themselves, directly impose any
new requirements on small entities. See Mid-Tex Electric Cooperative,
Inc. v. FEC, 773 F.2nd 327 (D.C. Cir. 1985) (agency's certification
need only consider the rule's impact on entities subject to the
requirements of the rule). Instead, this action makes findings of
failure to submit and establishes a schedule for Texas to stop the
clocks and does not directly regulate any entities. Therefore, I
certify that this action will not have a significant economic impact on
a substantial number of small entities.
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated annual costs to State,
local, or tribal governments in the aggregate; or to private sector, of
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
Sections 202 and 205 do not apply to this action because the
findings that Texas failed to submit the required SIP for the DFW area
do not, in-and-of-themselves constitute a Federal mandate, because they
do not impose any enforceable duty on any entity. In addition, the Act
does not permit EPA to consider the type of analyses described in
section 205 in determining whether a State has failed to submit a
required SIP. Finally, section 203 does not apply to the action because
the SIP submittal schedule to stop the clocks would only affect the
State of Texas, which is not a small government.
G. Submission to Congress and the Comptroller General
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary, or contrary to public interest. This
determination must be supported by a brief statement, 5 U.S.C. 808(z).
As stated previously, EPA has made a good cause finding, including the
reasons therefor, and established an effective date of May 13, 1999,
the date of signature. The EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. This action
is not a ``major'' rule as defined by 5 U.S.C. 804(2).
H. Paperwork Reduction Act
This rule does not contain any information requirements which
require OMB approval under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.)
I. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 2, 1999. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon Monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 13, 1999.
Gregg A. Cooke,
Regional Administrator, Region 6.
[FR Doc. 99-13806 Filed 6-1-99; 8:45 am]
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