Imposition of Statewide Sanctions on California Under Clean Air Act Section 110(m) for Failure to Submit a Complete SIP Revision for an Enhanced Motor Vehicle Inspection and Maintenance Program |
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Carol M. Browner (Federal Register)
January 24, 1994
[Federal Register Volume 59, Number 15 (Monday, January 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-1128]
[[Page Unknown]]
[Federal Register: January 24, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA-47-2-6094 FRL-4826-4]
Imposition of Statewide Sanctions on California Under Clean Air
Act Section 110(m) for Failure to Submit a Complete SIP Revision for an
Enhanced Motor Vehicle Inspection and Maintenance Program
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing this
action to impose sanctions on California under the discretionary
sanction authority provided the Agency under the Clean Air Act, as
amended in 1990, (CAA or Act) for failure by the State to submit a
complete SIP revision for an enhanced motor vehicle inspection and
maintenance (I/M) program as required by the Act for certain ozone and
carbon monoxide (CO) nonattainment areas. On November 13, 1992, the
California Air Resources Board (CARB), acting as the governor's
designee, submitted a commitment (committal SIP) to adopt an I/M
program by November 15, 1993. The committal SIP provides for the
adoption and implementation of an enhanced I/M program meeting all
requirements of EPA's I/M regulations and includes an implementation
schedule. On June 28, 1993, EPA proposed to conditionally approve this
committal SIP or alternatively to disapprove it if certain milestones
contained in the schedule were missed. A full SIP revision including
state legislative authority to implement the program was required by
November 15, 1993. The State Legislature adjourned on September 10,
1993 without having enacted legislation providing authority for
implementing the enhanced I/M program.
On November 15, 1993, the State submitted a document entitled
``Vehicle Inspection and Maintenance Program SIP Revision'' (the
``proposed SIP revision''). The proposed SIP revision was missing
critical elements required for compliance with section 182(c)(3) of the
Act. On December 30, 1993, EPA Region 9 issued a letter finding that
the State had failed to submit a complete SIP revision required under
sections 110 and 182 of the Act. The letter dated December 30, 1993,
notified the State that the proposed SIP revision was incomplete
because it had not been subject to public notice. Due to the failure of
the State to submit a complete SIP revision fulfilling either the
requirements of the Act or its commitment to adopt and implement an
enhanced I/M program as promised in its committal SIP, EPA proposes to
exercise its discretionary authority under the Act to apply a statewide
highway funding limitation sanction and a 2 for 1 offset sanction in
all areas required to have a permit program under the new source review
provisions of the Act.
DATES: Comments must be received on or before March 15, 1994. EPA will
hold a public hearing on this proposed action on Thursday, March 3,
1994.
ADDRESSES: EPA welcomes comments on all aspects of this proposal.
Written comments should be addressed to: U.S. Environmental Protection
Agency, Region 9, Air and Toxics Division (A-2-1), Attention: Docket
No. CA-93-IM-3, 75 Hawthorne Street, San Francisco, CA 94105.
The public hearing will be held in the auditorium of the Los
Angeles Department of Water and Power Building, 111 North Hope, Los
Angeles, California 90012 (telephone: (415) 744-1500) from 1 p.m. to 5
p.m. and from 7 p.m. to 9 p.m.
A docket has been established and contains materials relevant to
this action. A copy of the docket is available for public inspection
during normal business hours at EPA's Region 9 office at the above
address. A reasonable fee may be charged for copying portions of the
docket.
FOR FURTHER INFORMATION CONTACT: David Calkins, Chief, Air Planning
Branch, (A-2), U.S. Environmental Protection Agency, Region 9, 75
Hawthorne Street, San Francisco, California 94105, (415) 744-1500.
SUPPLEMENTARY INFORMATION:
I. Requirements for Inspection and Maintenance Programs
A. Applicability of the Enhanced I/M Program in California
As amended in 1990, the Clean Air Act requires states to make
changes to improve existing I/M programs or to implement new ones for
certain nonattainment areas. Section 182(a)(2)(B) of the Act directed
EPA to publish updated guidance for state I/M programs, taking into
consideration findings of the Administrator's audits and investigations
of these programs. The Act further requires each area required to have
an I/M program to incorporate this guidance into the SIP. Based on
these requirements, EPA promulgated I/M regulations on November 5, 1992
(57 FR 52950).
Under sections 182(c)(3) and 187(b)(1) of the Act, areas designated
as serious and worse ozone nonattainment areas with 1980 populations of
200,000 or more and CO nonattainment areas with design classifications
above 12.7 ppm and populations of 200,000 or more, in addition to
metropolitan statistical areas with populations of 100,000 or more in
the northeast ozone transport region, are required to meet EPA
regulations for ``enhanced'' I/M programs. These areas were required to
submit a SIP revision to incorporate an enhanced I/M program into the
SIP by November 15, 1992. In California, the State must adopt and
implement enhanced I/M programs for the following urbanized areas:
Bakersfield
Fresno
Los Angeles
Oxnard-Ventura
Riverside-San Bernardino
Sacramento
San Diego
The I/M regulation establishes minimum performance standards for
basic and enhanced I/M programs as well as requirements for the
following: Network type and program evaluation; adequate tools and
resources; test frequency and convenience; vehicle coverage; test
procedures and standards; test equipment; quality control; waivers and
compliance via diagnostic inspection; motorist compliance enforcement;
motorist compliance enforcement program oversight; quality assurance;
enforcement against contractors, stations and inspectors; data
collection; data analysis and reporting; inspector training and
licensing or certification; public information and consumer protection;
improving repair effectiveness; compliance with recall notices; on-road
testing; SIP revisions; and implementation deadlines. For enhanced I/M
programs, all requirements must be implemented by January 1, 1995
except that areas switching from an existing test-and-repair network to
a test-only network may phase in that change between January 1995 and
January 1996.
Each State required to implement an I/M program was required to
submit by November 15, 1992, a SIP revision (here and after referred to
as the ``I/M committal SIP'') including two elements: (1) A commitment
from the Governor or his/her designee to the timely adoption and
implementation of an I/M program meeting all requirements of the I/M
regulation; and (2) a schedule for adoption of the program with interim
milestones including passage of enabling statutory or other legal
authority and adoption of final regulations. Acceptance of I/M
committal SIPs in lieu of full SIPs was justified by the fact that
States could not have been expected to begin development of an I/M
program meeting the requirements of the Act and the I/M regulation
until the I/M regulation was adopted as a final rule, which did not
occur until November 5, 1992. A complete SIP revision which contained
all of the elements identified in the adoption schedule, including the
authorizing legislation and implementing regulations, was required to
be submitted no later than November 15, 1993.
B. I/M Program in California
1. California Committal SIP: The State of California submitted an
I/M committal SIP on November 13, 1992. The committal SIP submittal
became complete by operation of law under section 110(k)(1)(B) on May
13, 1993. The submittal includes a letter from the Executive Officer of
the CARB and a copy of Resolution 92-74 which was adopted at a public
hearing held by the CARB on November 13, 1992. The Resolution directs
the Executive Officer to submit the committal letter to EPA as a
revision to the SIP. The submittal included a commitment by the
governor's designee, the CARB Executive Officer, to the timely adoption
and implementation of I/M programs meeting all requirements of the I/M
regulation and the Act in all nonattainment areas in California where
these programs are required. A schedule of adoption was included in a
letter sent by the CARB Executive Officer to EPA on January 15, 1993
clarifying certain details of the November 13, 1992 I/M committal SIP
submittal. In the schedule California committed to passing legislation
authorizing an I/M program by September 10, 1993. The committal SIP
lists October 10, 1993 as the deadline for the legislation to be signed
by the governor.
2. EPA Proposed Approval: On June 28, 1993 (58 FR 34553) EPA
proposed to conditionally approve the committal SIP under section
110(k)(4) of the Act. In the alternative, however, EPA proposed that,
if the State failed to adopt legislative authority or meet certain
other applicable interim milestones in the commitment prior to EPA's
final action on the submittal, EPA would disapprove the committal SIP.
The basis for such disapproval would be a determination that California
could not meet the November 15, 1993 SIP revision submission date if it
failed to meet the interim milestones. Therefore, since the State could
not meet its commitment, final approval under section 110(k)(4) would
not be appropriate.
3. State Legislative Action: On November 15, 1993 California failed
to meet its commitment to EPA. By letter dated December 30, 1993, EPA
Region 9 notified the State that the proposed SIP revision submitted on
November 15, 1993, did not contain the critical elements required by
statute and that the State had failed to submit a complete SIP revision
as required by the Act. For example, the proposed SIP revision did not
contain legislative authority for the State to implement the proposed
SIP revision. In addition, EPA Region 9 notified the State that the
proposed SIP revision was an incomplete SIP submittal because it was
not subject to a public hearing.
Further, the State failed to meet the interim deadlines in its
committal SIP. California was required to obtain legislative authority
for the adoption and implementation of an enhanced I/M program during
the 1993 legislative session under the November 15, 1992 I/M committal
SIP submittal. Bills to change California's existing I/M program were
introduced during the 1993 legislative session and hearings were held
by the Senate and Assembly Transportation Committees. The legislature
adjourned, however, on September 10, 1993 without having adopted I/M
legislation. Failure to provide such authority prevented California
from submitting a complete SIP revision by November 15, 1993.
Earlier this year, EPA anticipated the possibility that the
California legislature would fail to adopt necessary legislation during
the 1993 legislative session. On April 13, 1993, EPA and the U.S.
Department of Transportation sent a joint letter to Governor Wilson
advising him that EPA would exercise its discretionary authority under
section 110(m) of the Act to impose sanctions if the legislature failed
to adopt adequate legislation. On November 24, 1993, EPA issued a press
statement indicating that EPA would temporarily halt the process of
imposing sanctions to permit discussions between the parties to resolve
the issue.
4. Importance of Timely Implementation of Appropriate I/M Programs:
Beyond being a specific mandate of the Act, enhanced I/M programs play
an important role in the ability of California areas to comply with the
CAA requirements for achieving the National Ambient Air Quality
Standards (NAAQS) for ozone and CO, as well as the Act's requirements
for reasonable further progress (RFP) reductions for ozone. The Act
provides that each state in which all or part of an ozone and/or CO
nonattainment area are located is required to provide an attainment
demonstration showing that its SIP, as revised, will provide for
attainment of the ozone and/or CO NAAQS by the applicable attainment
date(s).
The Act further requires that each state in which all or part of a
serious, severe, or extreme ozone nonattainment area is located shall
submit SIP revisions that will reduce VOC emissions by November 15,
1996 by at least 15% of the 1990 baseline emissions. If the reductions
identified in the SIP revisions are less than 15% of the baseline
emissions, the State may obtain a waiver under section
182(b)(1)(A)(ii); this requires the State to make several
demonstrations, including one that the plan reflecting the lesser
amount includes all measures that can feasibly be implemented in the
area in light of technological achievability. Many areas in California
will have difficulty meeting the RFP requirements because credit for
certain pre-1990 CAA programs, such as the federal motor vehicle
control program and basic I/M, is not allowed. The additional benefits
of enhanced I/M, however, are fully creditable towards meeting the RFP
requirement. Enhanced I/M is one of the most powerful tools available
to areas in terms of providing expeditious reductions in both VOC and
NOx, both of which are treated in most California plans as precursors
of ozone.
Finally, a federally approvable enhanced I/M program represents one
of the most cost-effective air quality control strategies available.
Without an effective I/M program, attainment of the ozone and CO air
quality standard is virtually impossible. Without appropriate enabling
legislation, an enhanced I/M program cannot be implemented.
II. Sanctions Under the Clean Air Act
This sanction action is being proposed under EPA's discretionary
authority contained in section 110(m) of the Act. The predicate
findings and types of sanctions are described in section 179 of the
Act. The two sanctions available to EPA for application under section
110(m), as provided in section 179(b), are: (1) A prohibition on the
funding of certain highway projects; and (2) an increase in the
emission offset requirement for new and modified major stationary
sources. The highway funding sanction prohibits approval by the
Secretary of Transportation of any projects or the awarding by the
Secretary of any grants, under Title 23 of the U.S. Code, other than
projects or grants for safety and certain other categories of projects
listed in section 179(b)(1). The offset sanction requires that, when
States apply the emission offset requirement of section 173 to new or
modified sources, the ratio of emission reductions to increased
emissions must be at least 2 to 1.
Section 179(a) of the Act sets forth the findings\1\ which provide
EPA with discretion under section 110(m) to impose one or both of the
sanctions specified under section 179(b). The four findings are: (1) A
state has failed, for a nonattainment area, to submit a SIP or an
element of a SIP, or that the SIP or SIP element submitted fails to
meet the completeness criteria of section 110(k); (2) EPA disapproves a
SIP submission for a nonattainment area based on the submission's
failure to meet one or more plan elements required by the Act; (3) a
State has not made any other submission required by the Act or has made
a submission that does not meet the completeness criteria or has made a
required submission that is disapproved by EPA for not meeting the
Act's requirements; or (4) a requirement of an approved plan is not
being implemented.
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\1\Section 179(a) refers to Agency findings, disapprovals, and
determinations. These will all be referred to by the one term
``findings.''
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Under section 179(a), unless the State corrects the deficiency, one
of the two sanctions listed in section 179(b) must be imposed 18 months
after a finding is made, and the second must be imposed 6 months after
the first sanction is imposed if the deficiency remains uncorrected.\2\
In addition, both sanctions shall apply after 18 months if the
Administrator finds a lack of good faith on the part of the State.
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\2\On October 1, 1993, EPA proposed a rule governing the order
in which the sanctions shall apply under section 179 of the Act. 58
FR 51270. The rule proposes that the offset sanctions apply first
and the highway sanctions apply second. According to the proposed
rule, EPA may change this sequence of sanctions through individual
notice and comment rulemaking. This proposed sequencing applies only
to mandatory sanctions that apply under section 179(a) and does not
govern sanctions imposed under section 110(m).
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Although section 179(a) establishes mandatory deadlines for the
application of sanctions at certain points after a finding of
deficiency, section 110(m) provides EPA with the discretion to impose
section 179(b) sanctions at any time (or at any time after) a section
179(a) finding. Likewise, although mandatory sanctions under section
179 are limited to the area with the deficiency, section 110(m)
authorizes EPA to apply discretionary sanctions to any portion of the
state that EPA deems reasonable and appropriate to ensure that the
requirements of the Act are met. See 57 FR 44534, 44536-44537. However,
the Act requires EPA to establish by rule criteria to ensure that such
sanctions are not applied on a statewide basis where one or more
political subdivisions covered by the applicable implementation plan
are principally responsible for the deficiency.
On September 28, 1992, EPA proposed criteria under section 110(m)
that it would use when proposing statewide sanctions to determine if
one or more political subdivisions is principally responsible for a SIP
deficiency. 57 FR 44534. These proposed criteria are discussed later in
this notice.
With regard to California, EPA is using its discretionary authority
under section 110(m) to propose early sanctions\3\ based on
California's failure to adopt legislation to improve its I/M program.
EPA is taking this action for two reasons: (1) Congress required timely
submittal of enhanced I/M programs as a measure central to allowing the
State's metropolitan areas to meet CAA deadlines, and any legislative
delay threatens the States's ability to meet those deadlines, and (2)
enhanced I/M is the single most effective air pollution control measure
available. Delayed legislative approval of an acceptable I/M program
places a disproportionate burden for cleaning the air on the State's
major industrial sources--additional burdens which are especially
problematic given California's current economic difficulties.
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\3\EPA issued its letter on December 30, 1993, finding that the
state's proposed SIP revision was a failure to submit a SIP revision
as required by the Act and, in addition, was an incomplete SIP
submittal. Mandatory sanctions were triggered under Section 179(a)
by issuance of the letter notifying the state of the finding of
deficiency.
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III. Proposed Sanctions
A. Finding Under Section 179(a)
As stated previously, on December 30, 1993, EPA Region 9 issued a
letter notifying the state of its failure to submit a complete SIP
revision on November 15, 1993, as required by the Act. EPA's letter
constitutes a finding under section 179(a) that triggers EPA's
discretionary authority to impose the sanctions proposed in this notice
under section 110(m). Further, on June 28, 1993, EPA proposed to
conditionally approve California's I/M committal SIP for both basic and
enhanced I/M programs. EPA also proposed, in the alternative, to
disapprove this commitment if the state failed to adopt authorizing
legislation and to submit the required I/M programs by the November 15,
1993 date. California has also now failed to adopt and submit such
programs.
If sufficient progress has not been made by California toward the
implementation of an approvable I/M program to be operational on or
before January 1, 1995, EPA hereby announces its intention to impose
sanctions on May 15, 1994.
B. Rationale and Approach for Section 110(m) Sanctions
Section 110(m) of the Act allows EPA to apply the highway and
offset sanctions at any time (or at any time after) it makes a finding
under section 179(a). Based on its finding dated December 30, 1993, EPA
is proposing to impose both the highway and offset sanctions. EPA
believes that the imposition of highway sanctions is appropriate
because of California's failure to adopt legislation to enhance its
existing smog check program. In the absence of improved smog check, the
ability of the State's metropolitan areas to meet the Clean Air Act
deadlines for attaining healthy air quality is severely compromised. As
previously noted, enhanced smog check is the single most effective air
pollution control measures available and delayed legislative approval
of an acceptable program further burdens major industrial sources of
air pollution with responsibility for cleaning the air.
Under section 110(m), EPA may apply sanctions to any portion of the
state it determines is reasonable and appropriate. During the 24 months
following the finding, EPA may not impose the sanctions statewide if
one or more political subdivisions within the state is principally
responsible for the deficiency that is the basis for sanctions. EPA has
proposed criteria for determining when a political subdivision is
principally responsible (57 FR 44534, September 28, 1992). The criteria
provide that a political subdivision is principally responsible if: (1)
It has the legal authority to perform the required activity; (2) it has
traditionally performed, or has been delegated the responsibility to
perform, the required activity; (3) it has received, where appropriate,
adequate funding, or authority to obtain funding, from the state to
perform the required activity; (4) it has agreed to perform (and has
not revoked that agreement), or is required by state law to accept
responsibility for performing, the required activity; and (5) it has
failed to perform the required activity. A ``political subdivision'' is
defined as the representative body that is responsible for adopting
and/or implementing air pollution controls for any combination of
political subdivisions created by, or pursuant to, Federal or State
law. If no political subdivision meets all 5 criteria, EPA may use its
discretion to determine whether it is reasonable and appropriate to
apply sanctions on a statewide basis.
In this notice, EPA is proposing to use the above proposed criteria
to determine if it may impose the highway sanction statewide for
California because of the State's failure to submit a complete SIP
revision complying with the I/M committal SIP revision.
EPA believes that the first criterion has not been met by any
political subdivision. Only the California legislature has the
authority to revise the state statute to provide for an enhanced I/M
program meeting the CAA and EPA requirements. Once the legislature has
acted, only state government agencies can adopt any implementing
regulations. While individual air pollution control district or air
quality management districts may request implementation of the state I/
M program once adopted, this authority is meaningless unless the State
has first established an appropriate program through legislation and
regulations. Since the state legislature has not enacted the
legislation required to provide the legal authority for an enhanced I/M
program meeting the CAA and EPA requirements, an enhanced I/M program
is not available to areas within the state that require the program.
Since no political subdivision within the state has met the first
criterion, EPA believes that no political subdivision is principally
responsible for the failure to have an enhanced I/M program. Therefore,
EPA is not prohibited from imposing highway sanctions statewide. As
noted above, the state legislature bears the ultimate responsibility to
adopt the requisite legislative authority and CARB, not the individual
air quality districts, must subsequently adopt adequate regulations.
Since the state bears ultimate responsibility, EPA believes that it is
reasonable and appropriate to impose sanctions on the entire State.
The offset requirements apply only to new or modified major
stationary sources located in or to be located in areas that are
required to have a permit program pursuant to section 173. Thus, the
offset sanctions are limited to those areas which are required to have
a permit program, i.e., the ozone and CO nonattainment areas. For
ozone, those areas are: Monterey, Santa Barbara, San Diego, San
Francisco Bay Area, South Coast, Ventura, Sacramento, San Joaquin
Valley, and the South East Desert. The offset sanction would apply to
all new or modified major stationary sources for VOCs and NOx that are
locating to or located in each of these areas and for such sources of
CO that are located in or locating to the following CO nonattainment
areas: Chico, Sacramento, San Diego, San Francisco, San Joaquin, and
South Coast. EPA proposes to impose the offset sanctions in the manner
described in the proposed action on the sequencing of sanctions (58 FR
51270, 51275-51277 (October 1, 1993)).
C. Removal of Discretionary Sanctions
EPA is proposing to temporarily lift (i.e., toll)4 the highway
and offset sanctions imposed under section 110(m) upon passage by the
California legislature and signature by the Governor of legislation
which EPA preliminarily determines provides legal authority for an
enhanced I/M program meeting the requirements of the CAA and the I/M
regulation. EPA proposes to notify the state of this tolling by a
letter to the Governor and the public by a notice published in the
notice section of the Federal Register. The section 110(m) sanctions
would not be completely lifted until the State makes a complete
submittal of its enhanced I/M program for the State of California. EPA
will take action to completely lift section 110(m) sanctions at the
time it determines the State's submittal to be complete or it is deemed
complete. A complete submittal is one that contains all the critical
elements listed in the I/M regulation as determined through the
completeness criteria in section 110(k)(1).
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\4\As a general rule, an Agency must go through rulemaking to
remove or alter a requirement imposed through rulemaking. While U.S.
EPA intends to issue a notice tolling the 110(m) sanction upon the
occurrence of the events described, U.S. EPA will use the good cause
exception to the otherwise applicable requirement for proposed
rulemaking. EPA believes there is good cause to toll the sanctions
once the state takes the action which cures the defficiency that
resulted in the imposition of sanctions. See 5 U.S.C.Sec. 553(b)(B).
Therefore, no proposed action for removal will be issued. Consistent
with U.S. EPA's intent to impose discretionary sanctions only on
those areas that lack legislative authority, EPA believes that it is
in the public interest to remove, at least temporarily, these
discretionary sanctions as expeditiously as possible once the State
of California has enacted legislative authority.
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As an alternative, if EPA takes final action disapproving
California's committal SIP prior to taking final action imposing
sanctions, EPA proposes that such disapproval be the basis for imposing
the discretionary sanctions. In such case, the sanctions would be
tolled in the same manner; however, if the disapproval is the final
basis for imposing the sanctions, such sanctions would not be
completely lifted until EPA formally approves an enhanced I/M program
for the State of California. In such a case, EPA would take action to
lift the sanctions at the same time as EPA took final action approving
the State's I/M program.
EPA's action imposing or tolling the section 110(m) sanctions will
in no manner affect EPA's obligation to impose mandatory sanctions
under section 179(a) where one mandatory sanction shall apply 18 months
after EPA's finding of incompleteness and the second mandatory sanction
shall apply 6 months later. Sanctions under section 179(a) apply to the
area for which the deficiency exists. If the State does not adopt and
submit to EPA a complete submittal providing for an I/M program within
the 18-month and additional 6-month periods, the sanctions will
automatically apply to those areas of the state that were required to
have but do not have such a complete I/M program under the amended Act.
See 58 FR 51270 (October 1, 1993). Moreover, if EPA takes final action
disapproving California's I/M committal SIP, a second sanctions clock
will be triggered and California must not only submit an I/M program,
but EPA must also approve that program within the relevant time frames
to stop the mandatory sanctions clock and avoid sanctions on the final
disapproval.
IV. Regulatory Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the right and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''.
Nevertheless after reviewing information regarding this action, OMB has
waived review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. Alternatively, EPA may
certify that the rule will not have a significant 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.
EPA cannot reliably predict the impact of these restrictions
because of the exemptions authorized for certain highway projects
related to mass transit, public safety, and those that have beneficial
air quality impacts. Careful review and evaluation of each project is
necessary to determine whether or not a project is exempt.
If EPA takes final action on this proposal, the 2 to 1 emissions
offset requirement will apply to major new sources and major
modifications to the existing sources of volatile organic compounds
(VOC), oxides of nitrogen (NOx), and carbon monoxide (CO) in the
California ozone and carbon monoxide areas subject to section 173(c)
offset requirement.
Major stationary sources of VOC, NOX, and CO are generally not
small entities. Also, the 2 to 1 emission offset requirement does not
prevent growth and modification but sets a higher offset standard than
the current offset required. It is not expected that a large number of
small entities will be affected by the emission offset requirement. In
the past, when EPA has made efforts to quantify the impact of the Act's
rules on the construction and modification of sources, EPA has been
unable to do so due, in part, to the need to obtain information on
future plans for business growth. This information is difficult to
obtain, as business are understandably reluctant to make their plans
public.
EPA is proposing to impose Federal highway funding assistance
limitations statewide. This limitation could affect a number of
government entities with populations of less than 50,000 since
government entities often apply for and receive federal funding under
Title 23, United States Code, for road improvement projects. Although a
great many projects are exempted under section 179(b)(1)(B), a number
of projects are expected to be affected if EPA takes final action.
For the reasons stated above, EPA cannot further analyze the
economic impacts of this action on small entities. The statements in
this package constitute EPA's full regulatory flexibility analysis.
C. Reporting and Recordkeeping Requirements
This rule does not contain any information collection requirements
which require OMB approval under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.). Should the highway sanctions become effective, the
Secretary of the U.S. Department of Transportation (USDOT) is required
to determine which projects or grants should not be affected by the
sanction and which, therefore, are exempt. This determination will be
based on information readily available in existing documentation
gathered for the purpose of evaluating the environmental, social, and
economic impacts of different alternatives for transportation projects.
These analyses are already required for the preparation of
environmental assessments and impact statements under the National
Environmental Policy Act (NEPA). Historically, exemption determinations
by USDOT for sanctions have been based on such NEPA documentation and
have not necessitated additional information gathering and analysis by
the States. In addition, since under NEPA final environmental documents
must be approved by USDOT, in most cases the NEPA documentation will
already be in USDOT's possession. Therefore, EPA does not believe that
the highway sanction, when applied, will impose an additional
information collection burden on the states.
When the offset sanction applies, sources subject to it will not
incur an additional information collection burden because sources are
already required under the section 173 offset requirements to obtain an
emission offset from between 1 to 1 and 1.5 to 1 (depending on the
classification of the nonattainment area in which they are located).
Should the offset sanction apply, it would not impose an additional
information collection burden because sources will not have to provide
additional information in the application beyond that which they would
already have to provide in the absence of the sanction. (For the
information collection burden of new requirements of the amended Act
for nonattainment new source review (NSR) and prevention of significant
deterioration, an information collection request is being prepared to
support rulemaking changes to parts 51 and 52.)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen oxide, Ozone,
Volatile organic compounds.
Dated: January 7, 1994.
Carol M. Browner,
Administrator.
40 CFR part 52 is proposed to be amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart A --[Amended]
2. Subpart A is proposed to be amended by adding a new Sec. 52.32
to read as follows:
Sec. 52.32 Discretionary sanction under section 110(m) of the Clean
Air Act.
(a) Purpose. The purpose of this section is to implement 42 U.S.C.
7410 (m), with respect to the application of discretionary sanctions
following a finding that has been made pursuant to 42 U.S.C. 7509 (a)
(1), (2), (3), and (4).
(b) Definitions. All terms used in this section, but not
specifically defined in this section shall have the meaning given them
in Sec. 52.01.
(1) 1990 Amendments means the 1990 Amendments to the Clean Air Act
(Pub. Law 101-549, 104 Stat. 2399).
(2) Act means Clean Air Act, as amended in 1990 (42 U.S.C. 7401 et
seq.).
(3) Criteria pollutant means pollutant for which the Administrator
has promulgated a national ambient air quality standard pursuant to 42
U.S.C. 7409 (e.g., ozone, lead, sulfur dioxide, particulate matter,
carbon monoxide, nitrogen dioxide).
(4) Findings or Finding refer(s) to one or more of the findings,
disapprovals, and determinations described in 42 U.S.C. 7509 (a) (1),
(2), (3), and (4).
(5) Part D means part D of title I of the Act.
(6) Part D SIP or SIP revision or Plan means a state implementation
plan or plan revision that states are required to submit or revise
pursuant to part D.
(c) Available sanctions and method for implementation. (1) Offset
sanction. (i) As further set forth in paragraphs (c)(1)(ii) through
(iii) of this section, for the following areas, on the following dates,
the State shall apply the emissions offset requirements, in accordance
with 42 U.S.C. 7503 and 7509(b)(2), at a ratio of at least 2-to-1 for
emission reductions to increased emissions of the following pollutants
and their precursors for which the findings under 42 U.S.C. 7409 are
made:
------------------------------------------------------------------------
Date
Affected area sanction Pollutant(s)
applies affected
------------------------------------------------------------------------
State of
California:
Chico................................. ........ CO
Monterey.............................. ........ VOC, NOx
Sacramento............................ ........ VOC, NOx, CO
San Diego............................. ........ VOC, NOx, CO
San Francisco Bay Area................ ........ VOC, NOx, CO
San Joaquin Valley.................... ........ VOC, NOx, CO
Santa Barbara......................... ........ VOC, NOx, CO
South Coast........................... ........ VOC, NOx, CO
South East Desert..................... ........ VOC, NOx
Ventura............................... ........ VOC, NOx
------------------------------------------------------------------------
(ii) For purposes of applying the emissions offset requirement set
forth in 42 U.S.C. 7503, at the 2-to-1 ratio required under paragraph
(c)(1) of this section, the State shall comply with the provisions of a
State-adopted new source review program that the EPA has approved under
42 U.S.C. 7410(k)(3) as meeting the nonattainment area new source
review requirements of 42 U.S.C. 7501-7515, as amended by the 1990
Amendments, or, if no such plan has been approved, the State shall
comply directly with the nonattainment area new source review
requirements specified in 42 U.S.C. 7501-7515, as amended by the 1990
Amendments, or cease issuing permits to construct and operate major new
or modified sources. For purposes of applying the offset requirement
under 42 U.S.C. 7503 where the EPA has not fully approved a State's new
source review program as meeting the requirements of part D, the
specifications of those provisions shall supersede any State
requirement that is less stringent or inconsistent.
(iii) For purposes of applying the emission offset requirement set
forth in 42 U.S.C. 7503, any permit required pursuant to 42 U.S.C. 7503
issued on or after the date the offset sanction applies shall be
subject to the enhanced 2 to 1 ratio under paragraph (c)(1) of this
section.
(2) Highway funding sanction. For the following areas, on the
following dates, the highway sanction shall apply as provided in
42.U.S.C. 7509(b)(1):
------------------------------------------------------------------------
Date
Affected area sanction
applies
------------------------------------------------------------------------
State of California........................................... ........
------------------------------------------------------------------------
[FR Doc. 94-1128 Filed 1-21-94; 10:00 am]
BILLING CODE 6560-50-P