Air programs; approval and promulgation; State plans for designated facilities and pollutants: Arizona,

[Federal Register: December 17, 1999 (Volume 64, Number 242)]

[Proposed Rules]

[Page 70660-70665]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr17de99-34]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AZ 072-0085; FRL-6511-2]

Approval and Promulgation of Maintenance Plan and Designation of Area For Air Quality Planning Purposes for Carbon Monoxide; State of Arizona

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

[[Page 70661]]

SUMMARY: EPA is reproposing to redesignate the Tucson Air Planning Area (TAPA) to attainment for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS) and to approve a maintenance plan that will insure that the area remains in attainment.

EPA originally proposed to redesignate the TAPA to attainment for CO on July 22, 1998 (see 63 FR 39258) and is reproposing to provide the public with an opportunity to comment on additional information submitted by the Pima Association of Governments (PAG) in support of the redesignation and on several other new issues that were raised subsequent to publication of the original proposal.

DATES: Written comments on this proposal must be postmarked on or before January 18, 2000.

ADDRESSES: Send comments to Eleanor Kaplan, Air Planning Office, (Air- 2), United States Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

The technical support document and copies of other documents relevant to this action can be found in the docket for this proposal. The docket can be reviewed or copied during normal business hours at the following locations between 8 a.m. and 4:30 p.m. on weekdays. You may need to pay a fee for copying. US Environmental Protection Agency, Region 9, Air Division, Air Planning Office, (AIR-2), 75 Hawthorne Street, San Francisco, California 94105-3901, (415) 744-1159, Pima County Department of Environmental Quality, 130 West Congress, Tucson, Arizona 85701, (520) 740-3340.

Electronic Availability: This document is also available as an electronic file on EPA's Region 9 Web Page at http://www.epa.gov/ region09/air.

FOR FURTHER INFORMATION CONTACT: Eleanor Kaplan, Air Planning Office (AIR-2), Air Division, US Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 744-1159, email: kaplan.eleanor@epa.gov

SUPPLEMENTARY INFORMATION:

I. Background

On October 6, 1997 Arizona submitted a request to redesignate the CO Tucson Air Planning Area (TAPA) nonattainment area to attainment for the NAAQS and for approval of a maintenance plan. EPA proposed approval of the request and maintenance plan on July 22, 1998 (see 63 FR 39258) and provided for a 30-day public comment period.

In its original proposal, EPA found that the TAPA met all the redesignation requirements specified in section 107(d)(3)(E) of the Clean Air Act (CAA), namely

‹bullet› The area must have attained the applicable NAAQS,

‹bullet› The area had met all relevant requirements under section 110 and part D of the Act,

‹bullet› The air quality improvement was due to permanent and enforceable emission reductions, and

‹bullet› The area had a fully approved maintenance plan pursuant to section 175A of the Act.

With regard to the requirement for a fully approved maintenance plan, since the TAPA had elected to take advantage of the Limited Maintenance Plan (LMP) option provided for in EPA guidance,\1\ EPA reviewed the TAPA LMP and found that the TAPA was eligible to use that option and that the plan met the requirements specified in the EPA LMP guidance. For a full discussion of EPA's evaluation of the TAPA redesignation request and the maintenance plan, the reader is referred to the original EPA proposal and to the Technical Support Document (TSD) accompanying that proposal notice which may be found in the docket.

\1\ Memorandum entitled ``Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas,'' from Joseph W. Paisie, Group Leader, Integrated Policy and Strategies Group, Office of Air Quality Planning and Standards, US EPA, Research Triangle Park, North Carolina, October 6, 1995.

EPA received one set of comments during the 30-day comment period provided under the original proposal. Those comments came from the Arizona Center for Law in the Public Interest (ACLPI) in a letter dated August 21, 1998. EPA considered all of the comments from ACLPI and, when it takes final action, will reply in detail to each of them and to any public comments that may be received in response to the additional issues contained in this reproposal.

However, EPA believed that additional information was required to respond to one of ACLPI's comments which questioned the eligibility of the TAPA for the LMP option. The LMP option rests on the assumption that areas qualifying for the option will not experience so much growth in the maintenance period that a violation of the CO NAAQs would result. ACLPI questioned whether the projected growth in the TAPA rendered it ineligible to use the LMP option. EPA therefore requested additional information from the PAG relating to CO emissions projections for the area for a 10-year maintenance period extending through 2010. EPA received that information in a letter from PAG dated June 18, 1999. The supplementary information contained in that letter is being presented for public comment in section II of today's document along with additional issues that have arisen since the original proposal.

PAG provided growth projections for CO mobile source emissions, population, and Vehicle Miles Traveled (VMT). EPA considered the growth and CO emissions projections provided by the PAG and the summary of the area's design values over the past few years and believes that the data, in conjunction with the pre-violation action triggers and the contingency measures provided for in the TAPA maintenance plan, provide reasonable assurance that the area will not violate the NAAQS during the maintenance period. EPA is therefore reproposing the redesignation of the TAPA to attainment for the CO NAAQS and for approval of the maintenance plan on the grounds that the area meets the requirements for redesignation specified under the Clean Air Act and that it is qualified to utilize the LMP option.

II. New Issues For Public Comment

The issues described below are being presented for public comment in this reproposal. EPA is not re-opening the comment period for any other issues relating to the TAPA redesignation request.

1. Additional Information Received From PAG

   A summary of the additional information provided by PAG is contained in Tables I and II below. The full text of the PAG letter is contained in the TSD accompanying this document.

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   Table 1.--PAG Projections for CO Mobile Emissions and VMT

   CO mobile emissions Year (population)

   (tpd) tons per

   VMT

   Population day

   1990............................................................

   444.8 15,491,995

   666,880 1995............................................................ .............. 17,915,850

   766,172 1999 (2000).....................................................

   325.8 20,243,419

   854,329 2003 (2005).....................................................

   325.1 22,873,378

   943,795 2010............................................................

   367.2 27,286,950 1,031,623 2020............................................................

   428.7 32,760,981 1,206,244

   Table 2.--Ambient Air Concentrations--1990-1998

   Ambient Air Year

   Concentration

   \2\------ 1990..................................................

   6.5 1991..................................................

   5.7 1992..................................................

   5.8 1993..................................................

   6.0 1994..................................................

   5.5 1995..................................................

   5.9 1996..................................................

   5.1 1997..................................................

   4.4 1998..................................................

   4.0

   \2\ As described in 40 CFR 50.8, the national primary ambient air quality standard for carbon monoxide is 9 parts per million (10 milligrams per cubic meter) for an 8-hour average concentration not to be exceeded more than once per year.

   The information in Table 1 indicates that despite projected increases in population and VMT for the years 1990 through 2010, CO emissions drop from 444.8 tons per day in 1990 to 367.2 in 2010 rising again to a projected 428.7 tons per day in 2020, but still below the 1990 figure. PAG also provided information, shown in Table 2, on ambient air CO concentrations for the years 1990 through 1998. The figure for ambient air CO concentrations, or design value, is the highest of the second highest eight-hour concentrations observed at any site in the area and is the value on which the determination of attainment or nonattainment is based. The data here indicates that the design value for the TAPA for 1993-1995 was 6.0 or 67% of the NAAQS standard for CO. The design value for the years 1996 through 1998 dropped to 5.1 or 57% of the NAAQS standard.

   EPA attributes the downward trend of ambient CO levels in the TAPA in spite of the growth in VMT and population to several factors. Current control measures are having a positive effect that exceeds the negative effects of growth. Those control measures include the Federal Motor Vehicle Control program, the State's winter oxyfuels program and the State Vehicle Emissions inspection (VEIP) program. The downward trend of CO mobile source emissions despite growth in VMT and population that has been experienced in the TAPA is consistent with what EPA has been observing in other areas of the country. For example, the Colorado Springs, Colorado area, a moderate CO nonattainment area that was redesignated to attainment for CO in August 1999 (64 FR 46279), provided data showing a decrease in CO emissions from 264.20 tons per day in 1993 to a projected 173.22 tons per day in 2010, despite a projected increase in population in the same period from 434,324 to 481,013 and a projected increase in VMT from 8,813,543 to 13,076,951. Looking ahead, other factors that are likely to contribute to the downward trend of CO mobile source emissions in the future include the National Low Emitting Vehicle (LEV) program and the Tier 2 emissions standards for new cars.

   EPA believes that the following comprise additional safeguards against the possibility of a violation of the CO NAAQS in the TAPA during the maintenance period:

   ‹bullet› The pre-violation action triggers contained in the TAPA LMP which set in motion a process designed to forestall a future violation of the CO NAAQS.

   ‹bullet› The design values for the TAPA listed in Table II which were at 57% of the CO NAAQS standard for the years 1996-1998, provide an ample margin of safety and time to take action in the event of a possible violation of the CO NAAQS in the future.

   In summary, based on the information contained in the TAPA redesignation request and LMP and the additional information provided by PAG, EPA finds that the TAPA qualifies for the LMP option and meets the assumptions of that option: (1) that an area beginning the maintenance period at or below 85% of exceedance levels will continue to meet the standard for another ten years and (2) that it is unreasonable to expect that an area qualifying for the LMP option will experience so much growth in the maintenance period that a violation of the CO NAAQS would result.

2. Proposed Approval of SIP Revisions Submitted After Publication of the Original Proposal

   Table III below provides a summary of the Arizona statutes that were amended after the publication of the original redesignation proposal.

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   Table 3

   Arizona statutes SIP revision date

   involved

   Provisions

   August 11, 1998............... A.R.S. 49-401 and Revised these 49-406.

   statutes to expand the authority of the State and local certified metropolitan planning organizations to develop plans and to implement and enforce control measures for maintenance areas. September 1, 1999............. A.R.S. 41-796.01 Clarifies the 41-2121, 49- applicability of 401.01, 49-402, control measures to 49-404.

   Area B (Tucson Air Planning Area) following EPA approval of the TAPA as a maintenance area. September 1, 1999............. A.R.S. 41-

   Continues the State's 3009.01, 49- vehicle emissions 541.01, 49-542, inspection program 49-545, 49-557, through December 31, 49-573, 41-803, 2008. 401.01.

   In the original redesignation proposal published July 22, 1998, EPA proposed to approve Arizona's request for redesignation to attainment for the TAPA if, prior to the final action, ADEQ submitted a SIP revision amending Arizona statutes 49-401 and 49.406. EPA believed these amendments were necessary in order to expand the authority of State and local certified metropolitan planning organizations to develop plans and to implement and enforce control measures in attainment as well as nonattainment areas. Prior to the amendments, the statutes referred only to nonattainment areas. Amend- ments to A.R.S. 49-401 and 49-406 were signed into law on June 2, 1998 and were received as SIP revisions on August 11, 1998.

   Subsequent to the adoption of amendments to A.R.S. 49-401 and 49- 406, other sections of Arizona statutes were found that needed to be revised to ensure continued implementation of committed SIP control measures following redesignation. A SIP revision received on September 9, 1999 contains amendments to various Arizona statutes (1) expanding the definition of Tucson from a CO ``non-attainment area'' to a CO ``nonattainment/maintenance'' area and (2) amending various statutes relating to the State's Vehicle Emissions Inspection Program (VEIP) extending the expiration date of that program from 2001 to 2008.

   With regard to the VEIP sunset date of 2008, which is two years short of the requirement for a ten-year maintenance period, in a letter to EPA, dated August 23, 1998, ADEQ states that Arizona Revised Statutes 41-2955 limits to ten years the existence of an agency before it undergoes a sunset review and therefore the VEIP has been extended for the maximum time allowed under this statute, i.e., ten years. The letter supplies a recent history of legislative changes to the VEIP, concluding that ``The VEIP has consistently received support for necessary program updates from the Legislature''. EPA therefore believes that, on the basis of this legislative history, it is reasonable to assume that the program will be extended when it expires in 2008. The full text of the letter from ADEQ is attached to the TSD accompanying this document which is available at the addresses noted above.

3. Proposed Removal of Existing SIP Disapprovals

   EPA is proposing to remove the Agency's disapprovals (56 FR 5459, February 11, 1991) of the attainment demonstration and contingency measures that were contained in the 1988 Arizona CO SIP revision for Pima County. Those disapprovals were based on the finding of the Ninth Circuit Court of Appeals on March 1, 1990 in Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990) that the Arizona plans for Maricopa and Pima Counties did not fully comply with the Clean Air Act as amended in 1977 and with EPA guidance issued pursuant to that law. See 4 FR 7182 (January 21, 1981).

   EPA is proposing to remove the disapproval of the attainment demonstration contained in the 1988 Arizona CO SIP on the grounds that the maintenance demonstration provided by the TAPA in the LMP supplants that attainment demonstration. The maintenance demonstration in the LMP shows that there has been no exceedance of the CO NAAQS in the TAPA for the years 1993 through 1995. In addition, data from AIRS indicates that there has been no exceedance of the CO NAAQS from 1995 to the present. Although under the LMP option there is no requirement to project emissions over the maintenance period, the TAPA maintenance plan and the additional information provided by PAG show that the area has attained the CO NAAQS and will continue at or below the standard for the ten-year maintenance period.

   EPA is also proposing to remove the disapproval of the contingency measures contained in the 1988 Arizona CO SIP revision on the grounds that the contingency provisions in the TAPA Limited Maintenance Plan supplant those measures. The contingency plan included in the TAPA maintenance plan identifies the measures which would be triggered by specified events and provides a schedule and procedure for adoption and implementation of the measures.

   III. Summary of Proposed Actions

1. New Proposals

   1. SIP Revisions: EPA is proposing to approve the following SIP revisions containing amendments to various Arizona statutes.

   ‹bullet› SIP revision submitted August 11, 1998 containing amendments to A.R.S. 49-401 and 49-406: These statutory amendments expand authority of State and local certified metropolitan planning organizations to develop plans and to implement and enforce control measures for attainment as well as maintenance areas as required by Section 110(a)(2)(E) of the CAA.

   ‹bullet› SIP revisions submitted to EPA on September 1, 1999 containing amendments to the following Arizona statutes: A.R.S. 41- 796.01, 41-2121, 49-401.01, 49-402-402, 49-404, 49-454, and 49-541. These amendments, which were signed into law on May 18, 1999 insure continued implementation of the control measures contained in these statutes following redesignation to maintenance.

   ‹bullet› SIP revision submitted to EPA on September 1, 1999 containing amendments to Arizona Statutes 41-3009.01, 49-541.01, 49- 542, 49-545, 49-557, 49-573, 41-803, and 41-401.01 relating to the continued implementation of the State's Vehicle Emissions Inspection Program (VEIP) through December 31, 2008.

   2. EPA is proposing to remove the Agency's disapprovals (56 FR 5459, February 11, 1991) of the attainment demonstration and contingency measures that were contained in the 1988 Arizona CO SIP revision for Pima County on the grounds that they have been supplanted by the maintenance demonstration and contingency plan

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   contained in the area's Limited Maintenance Plan.

2. Reproposals

   1. EPA is reproposing to approve the TAPA CO maintenance plan because it meets the requirements set forth in section 175A of the CAA and the requirements of the LMP option contained in EPA guidance of October 6, 1995.

   2. EPA is reproposing to approve the Emissions Inventory for the base year 1994 contained in the LMP as meeting the requirements of section 172(c)(3) of the CAA.

   3. EPA is reproposing to approve the amendments to State Legislation A.R.S. 41-2083, 41-2122 and 41-2125 relating to the State's oxyfuels program in Area B, the Tucson area, including standards for liquid fuels (A.R.S. 41-2083, standards for oxygenated fuel, volatility exemptions (A.R.S. 41-2122) and oxygen content in the sale of gasoline (A.R.S. 41-2125) as control measures in the maintenance plan to be implemented in the event of probable or actual violation of the CO NAAQS in the TAPA. EPA is simultaneously reproposing to approve the amendments to A.R.S. 2083, 2122 and 2125, which were included as part of the LMP following a public hearing on August 20, 1997, as a revision to the Arizona SIP.

   4. Finally, EPA is reproposing to approve Arizona's request for redesignation to attainment.

   EPA is soliciting public comments on the additional issues described in section II, ``New Issues For Public Comment'' of this reproposal. Comments on these issues as well as the comments that were received on the original proposal, will be considered before taking final action. Interested parties may participate in the federal rule making procedure by submitting written comments to the person and address listed in the ADDRESSES section at the beginning of this document.

   VI. Administrative Requirements

1. Executive Order 12866

   The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, Regulatory Planning and Review.

2. Executive Order 13132

   Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure ``meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implications'' is defined in the Executive Order to include regulations that have ``substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.'' Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

   This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

3. Executive Order 13045

   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 Executive Order 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.

   This rule is not subject to Executive Order 13045 because it is does not involve decisions intended to mitigate environmental health or safety risks.

4. Executive Order 13084

   Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, 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, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

5. Regulatory Flexibility Act

   The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This proposed rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act,

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   preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

6. Unfunded Mandates

   Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), 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 require- ments. 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.

   EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

   List of Subject in 40 CFR Part 52

   Environmental protection, Air pollution control, Intergovernmental relations, Particulate Matter, Reporting and recordkeeping requirements, Sulfur Dioxide.

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

   Dated: December 9, 1999. David P. Howekamp, Acting Regional Administrator, Region IX.

   [FR Doc. 99-32761Filed12-16-99; 8:45 am]

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