[Federal Register Volume 61, Number 208 (Friday, October 25, 1996)]
[Proposed Rules]
[Pages 55253-55259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27472]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 088-4033; FRL-5640-3]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Disapproval of the Reasonable-Further-Progress Plan for
the 1996-1999 Period for the Philadelphia Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to disapprove the State Implementation Plan
(SIP) revision submitted by the Commonwealth of Pennsylvania (for the
Philadelphia ozone nonattainment area) to meet the rate-of-progress
(ROP) requirements under the Clean Air Act (the Act). Under these
requirements, states must demonstrate a 3% reduction of volatile
organic compounds (VOCs) per year for a three year period between 1996
and 1999. EPA is proposing disapproval because the ROP plan submitted
by Pennsylvania for the Philadelphia area projects emissions reductions
only for control strategies to the 2005 time frame, rather than for the
1999 and 2002 interim milestone years, per the ROP requirements of the
Act. Several of these measures have not been fully adopted or have been
stayed or replaced by the Commonwealth. Additionally, the Commonwealth
has not calculated emissions target level to be achieved in 1999 (or
for 2002) to ensure attainment of reasonable-further-progress toward
attainment by the statutory deadline. Finally, the 1990 emissions
inventory estimates provided in the Commonwealth's plan for ROP for the
period from 1996-1999 vary substantially from the inventory submitted
as the Commonwealth's official 1990 base year inventory. That VOC base
year inventory was formally revised in September of 1996. This
inventory superseded all previous 1990 base year inventories submitted
by the Commonwealth for Philadelphia--including the one contained in
the ROP plan for the period from 1996 to 1999. This rulemaking action
is being taken under section 110 of the Clean Air Act.
DATES: Comments must be received on or before November 25, 1996.
ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone and
Mobile Sources Section, Mailcode 3AT21, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. Copies of the documents relevant to this action are available
for public inspection during normal business hours at the Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.
Persons interested in examining these documents should schedule an
appointment with the contact person (listed below) at least 24 hours
before the visiting day. Copies of the documents relevant to this
action are also available at the Pennsylvania Department of
Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400
Market Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Brian K. Rehn, Ozone and Mobile
Sources Section (3AT21), USEPA--Region III, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107, or by telephone at: (215) 566-2176.
Questions may also be sent via e-mail, to: Rehn.Brian@epamail.epa.gov
(Please note that only written comments can be accepted for inclusion
in the docket.)
SUPPLEMENTARY INFORMATION:
Introduction--Clean Air Act Requirements
Reasonable-Further-Progress Requirements
Section 182(c)(2) of the Clean Air Act (the Act), as amended by
Congress in 1990, requires each state having one or more ozone
nonattainment areas classified as serious or worse to develop a plan
(for each subject area) that provides for actual VOC reductions of at
least 3 percent per year averaged over each consecutive 3-year period,
beginning six years after enactment of the Act, until such time as
these areas have attained the National Ambient Air Quality Standard
(NAAQS) for ozone. These plans are referred to hereafter as post-1996
rate-of-progress plans (or post-96 ROP plans). The first of these ROP
plans, for the 3-year period from 1996-1999, was due to be submitted to
EPA as a SIP revision by November 15, 1994.
The Act also mandates a 15 percent VOC emission reduction, net of
growth, between 1990 and 1996. That SIP
[[Page 55254]]
revision was due to EPA by November 15, 1993. The plan for these
reductions occurring between 1990-1996 is hereafter referred to as the
``15% percent rate-of-progress plan.''
The Clean Air Act limits the creditability of certain control
measures toward the reasonable-further-progress requirement.
Specifically, states cannot take credit for reductions achieved by
Federal Motor Vehicle Control Program (FMVCP) measures (e.g., new car
emissions standards) promulgated prior to 1990, or for reductions
stemming from regulations promulgated prior to 1990 to lower the
volatility (i.e., Reid Vapor Pressure) of gasoline. Furthermore, the
Act does not allow credit toward reasonable-further-progress
requirements for post-1990 corrections to existing motor vehicle
inspection and maintenance (I/M) programs or corrections to reasonably
available control technology (RACT) rules, since these programs were
required to be in place prior to 1990.
Additionally, section 172(c)(9) of the Clean Air Act requires
``contingency measures'' to be included in the plan revision. These
measures are required to be implemented immediately if reasonable-
further-progress has not been achieved, or if the NAAQS standard is met
by the deadline set forth in the Clean Air Act.
Attainment Demonstration Requirement
The attainment dates prescribed by the Act for areas classified as
``ozone nonattainment areas'' are as follows: November 15, 1999, for
serious ozone nonattainment areas; November 15, 2005, for severe ozone
nonattainment areas; November 15, 2007, for severe areas with 1986-1988
design values greater than 0.190 ppm; or November 15, 2010, for extreme
ozone nonattainment areas.
The Act also requires that states required to submit post-1996 ROP
plan SIPs for certain areas, due by November 15, 1994 for serious or
worse ozone nonattainment areas, must also simultaneously submit for
those areas an ``attainment demonstration'' to provide for achievement
of the ozone NAAQS by the statutory deadline. This demonstration is to
be based on photochemical grid modeling, such as the Urban Airshed
Model (UAM), or an equivalent analytical method. However, in a March 2,
1995, memorandum from Mary Nichols, Assistant Administrator for EPA's
Office of Air and Radiation, EPA set forth guidance for an alternative
approach to satisfy the attainment demonstration requirements under
section 182(c)(2)(A) of the Act. Under this alternative, states were
provided the option to utilize a two-phased approach in order to
satisfy the attainment demonstration requirements of the Act.
Background
In Pennsylvania, three nonattainment areas were required to submit
15% plans in 1993 under the Act. These include the Philadelphia severe
nonattainment area, the Pittsburgh moderate nonattainment area, and the
Reading moderate nonattainment area. Since Philadelphia is the only
Pennsylvania nonattainment having a classification of serious or worse,
it is the only area with an attainment deadline beyond 1996. Therefore,
the Philadelphia area must continue to demonstrate reasonable-further-
progress toward attainment until its 2005 attainment deadline--unless
the Commonwealth can demonstrate attainment of the standard with fewer
reductions sooner than the statutory deadline.
The Philadelphia metropolitan area includes counties in New Jersey,
Delaware, and Maryland, as well as Pennsylvania, all of which must
demonstrate reasonable-further-progress. However, Pennsylvania is only
responsible for achieving RFP within its portion of that metropolitan
area. The Commonwealth did not enter an agreement with the other states
which comprise the metropolitan Philadelphia area to do a multi-state
ROP plan, and submitted only a plan to reduce Pennsylvania's
contribution by 15 percent.
On November 15, 1994, the Pennsylvania Department of Environmental
Resources submitted a post-1996 ROP plan for the Pennsylvania portion
of the Philadelphia ozone nonattainment area, which included an
attainment demonstration for that area. The post-1996 ROP plan
submitted by Pennsylvania is actually an attempt to demonstrate
reasonable-further-progress for Philadelphia from 1990 to 2005--the
area's prescribed attainment date under the Act. This plan depicts a
42% reduction (3% per year) from the 1990 baseline, net of emissions
growth during that period. In a letter dated May 31, 1995, from James
Seif, Secretary of Pennsylvania's Department of Environmental
Resources, Pennsylvania expressed its intent to follow a phased
approach to meeting the attainment demonstration requirements of the
Clean Air Act, as set forth in a March 2, 1995, EPA guidance
memorandum.
EPA is today taking action only upon Pennsylvania's post-1996 ROP
plan submittal. However, EPA is not taking action upon the attainment
demonstration portion of that plan. Based on Pennsylvania's commitment
to pursue the phased attainment demonstration approach, EPA will act
upon the attainment demonstration at a later date.
In a separate submittal from its post-1996 ROP plan for
Philadelphia, Pennsylvania submitted a plan to achieve a 15% reduction
in VOCs for the period from 1990 to 1996 for the Philadelphia area.
Pennsylvania amended this plan in January of 1995. EPA proposed
disapproval of that January 1995 plan in the July 10, 1996, edition of
the Federal Register (61 FR 36320). Pennsylvania submitted an amended
15% plan for Philadelphia on September 18, 1996, which included both a
revised 1990 base year emission inventory and a revised contingency
measure plan for the Philadelphia area, as well. EPA will act upon this
September 1996, 15% plan SIP submittal separately from today's
rulemaking action.
However, Pennsylvania has not revised its post-1996 ROP plan since
it was originally submitted, in November of 1994. EPA has reviewed this
post-1996 ROP plan submittal and has identified several serious
deficiencies that prohibit approval of this SIP under section 110 of
the Clean Air Act. A detailed discussion of these deficiencies is
included below, in the `Analysis' portion of this rulemaking action.
Due to these deficiencies, the post-1996 ROP plan will not achieve the
total reductions required by the rate-of-progress requirements of the
Act. EPA's review of this plan did not examine the individual control
measures applied toward rate-of-progress in the post-1996 ROP plan.
Many of these measures have been formally submitted as separate control
measure SIP revisions, or are national rules adopted by the federal
government.
Today's action focuses only the approvability of measures toward
the reasonable-further-progress requirement of the Act, and does not
address whether the control measures or inventories included in the
post-1996 plan comply with other specific underlying requirements of
the Act pertaining to those elements of the plan. A summary of the
EPA's findings follows.
Analysis of the SIP Revision
Base Year Emission Inventory
The baseline from which states determine the required reductions
for rate-of-progress planning is the 1990 base year emission inventory.
The inventory is broken down into several
[[Page 55255]]
emissions source sectors: stationary, area, on-road mobile, and off-
road mobile sources. Pennsylvania submitted a formal SIP revision
containing their official 1990 base year emission inventory on November
12, 1992. Pennsylvania formally revised this base year inventory on
September 12, 1996, to reflect recent, more accurate estimates of
actual 1990 emissions. EPA has not yet taken rulemaking action on the
base year inventory submittal. The post-1996 ROP plan submitted in
November of 1994 projects both emissions reductions and emissions
growth which are predicated upon an inventory which has since been
revised. The inventory that forms the basis of Pennsylvania's present
post-1996 ROP plan is no longer valid, and EPA cannot approve emissions
reduction ``target levels'' derived from this outdated inventory. EPA
intends to conduct separate rulemaking action on Pennsylvania's
official 1990 base year inventory SIP submittal at a later date.
Growth in Emissions Between 1996 and 1999
EPA has interpreted the Clean Air Act to require that states must
provide for sufficient control measures in their reasonable-further-
progress plans to offset any emissions growth projected to occur after
1996. Therefore, to meet the ROP requirement, a state must provide for
sufficient emissions reductions to offset projected growth in
emissions, in addition to a 3 percent annual average reduction of VOC
emissions. Thus, an estimate of emissions growth from 1996 to 1999 is
necessary for demonstrating reasonable-further-progress by 1999. Growth
is calculated by multiplying the 1990 base year inventory by acceptable
forecasting indicators. Growth must be determined separately for each
source, or by source category, since sources typically grow at
different rates. EPA's inventory preparation guidance recommends the
following indicators, in order of preference: product output, value
added, earnings, and employment. Population can also serve as a
surrogate indicator.
Pennsylvania's post-1996 plan projects total growth of 61 tons per
day (tpd) for the period between 1990 and 2005. This includes all
sectors, i.e., point, area, on-road motor vehicle, and non-road vehicle
source categories. Growth for point and area sources is based upon
estimates from the Bureau of Economic Analysis (BEA). Pennsylvania
linearly extrapolated from several BEA reports representing past and
future years to obtain its 2005 estimates for stationary, area, and
non-road mobile source sectors' growth. Highway mobile source growth
was determined through projections using the MOBILE computer model and
local projections for vehicle miles of travel increases in
Philadelphia.
No interim growth estimates have been included in Pennsylvania's
plan, therefore, growth for the period from 1996 to 1999 cannot be
determined. Pennsylvania must estimate interim growth levels to
determine the level of emissions reduction control strategies needed to
demonstrate reasonable-further-progress by 1999.
Calculation of Target Level Emissions
A ``target level'' of emissions represents the maximum level of
emissions allowed in each post-1996 milestone year which will still
provide the 3 percent per year rate-of-progress requirement mandated by
the Act. EPA's guidance document entitled Guidance on the Post-1996
Rate-of-Progress Plan and the Attainment Demonstration, dated January
1995 (EPA 452-93-015), outlines the approach states must take to
calculate the 1999 target level needed to satisfy the Act's post-1996
plan requirement.
The Commonwealth has not calculated a 1999 target level in its
plan. Instead, the Commonwealth calculated a target level for ROP by
2005. Without an emissions target level for the 1999 milestone year, it
is impossible to determine if the Commonwealth has achieved reasonable-
further-progress for the 1996-1999 period. Therefore, EPA must
disapprove the Commonwealth's ROP plan for failure to demonstrate a 3
percent per year (on average) reduction from 1996 to 1999, as required
under section 182(c)(2)(B) of the Act.
Control Strategies in the Philadelphia Post-1996 ROP Plan
Federal and state adopted VOC control measures may be credited
toward the ROP plan requirements of the Act (with the exception of
measures promulgated prior to 1990 which were specifically discussed
earlier). Per section 182(c)(2)(C) of the Act and EPA guidance, states
also may substitute NOX control strategies (with certain
limitations) in the ROP plan, provided that these NOX reductions
will provide at least as much progress toward meeting the NAAQS as VOC
controls would. In order to claim NOX reductions, states must
include a summary NOX emissions inventory and NOX growth
projections as part of their ROP SIP. The Commonwealth has not provided
this NOX inventory and growth information in its post-1996 SIP
submittal.
The Commonwealth has substituted NOX reductions in its post-
1996 plan, but has not calculated 1999 milestone target levels for the
pollutant NOX. Therefore, EPA must disapprove the Commonwealth's
post-1996 ROP plan for failure to satisfy the requirements of section
182(c)(2)(C) of the Act and to applicable EPA guidance.
The specific measures adopted (either through state or federal
rules) for the Philadelphia area are addressed, in detail, in the
Commonwealth's post-1996 plan. A list of control measures for which
Pennsylvania has claimed credit in its Philadelphia post-1996 ROP plan
for Philadelphia follows, along with a brief description of each.
Description of Control Strategies in the Post-1996 Plan
Stage II Vapor Recovery
This state-adopted regulation requires the installation and
operation of vapor recovery equipment on gasoline dispensing pumps to
reduce vehicle refueling emissions. The state regulation for this
program is codified in 25 PA Code Sec. 129.75. EPA approved the
Commonwealth's Stage II program on June 13, 1994 (59 FR 112).
Automobile Refinishing
EPA is in the process of adopting a national rule to control VOC
emissions from solvent evaporation through reformulation of coatings
used in auto body refinishing processes. These coatings are typically
used by small businesses, or by vehicle owners. VOC emissions emanate
from the evaporation of solvents used in the coating process.
Pennsylvania's post-1996 plan claims reductions from EPA's national
rule. Use of emissions reductions from EPA's expected national rule is
creditable toward reasonable-further-progress.
Reformulated Gasoline
Section 211(k) of the Clean Air Act requires that, beginning
January 1, 1995, only reformulated gasoline be sold or dispensed in
ozone nonattainment areas classified as severe, or worse. This gasoline
is reformulated to reduce combustion by-products and to produce fewer
evaporative emissions. As a severe area, Philadelphia benefits from the
emission reductions from this program. This measure is creditable
toward ROP planning.
Transportation, Storage, and Disposal Facilities (TSDFs) Rule
TSDFs are private facilities that manage dilute wastewater,
organic/inorganic sludges, and organic/inorganic solids. Waste disposal
can be done by various means including:
[[Page 55256]]
incineration, treatment, or underground injection or landfilling. EPA
promulgated a national rule on June 21, 1990 for the control of TSDF
emissions. This measure is creditable toward ROP planning.
Industrial Rule Effectiveness (RE) Improvements
Rule effectiveness is a means of enhancing rule compliance or
implementation by industrial sources, and is expressed as a percentage
of total available reductions from a control measure. The default
assumption level for rule effectiveness is 80%. Pennsylvania claims RE
improvements from the 80% default level to a level of 90% in their ROP
plan SIP revision for Philadelphia, based upon improvements to RACT
regulations for specific facilities in the 5-county Philadelphia area.
The applicable RACT rules pertain to surface coating operations (PA
Code Sec. 129.52) and offset printing operations (PA Code Sec. 129.67).
Pennsylvania followed EPA policy to quantify emissions reductions
from specific RE improvements for two categories, in the absence of
quantifiable compliance or emissions data. The RE measures Pennsylvania
claims toward the ROP plan include facility improvements, as well as
improved state oversight. Facility measures include: Improved operator
training, better operation and maintenance of process equipment,
improved source monitoring/reporting. State oversight improvements
include: more inspector training, stringent compliance inspections of
all RE improvement facilities. RE improvements are creditable toward
the ROP plan requirement of the Clean Air Act.
Permanent VOC/NOX Source/Process Shutdowns
Several industrial VOC sources that were operational in 1990 (i.e.,
included in the base year inventory) have since shut down either
processes or entire facilities. Pennsylvania has adopted a banking rule
(25 Pa Code Sec. 127.208), which requires that sources wishing to bank
emission reduction credits, or ERCs, must do so within one year of
initiation of the shutdown. If not, the Commonwealth can claim credit
for the reductions as permanent and enforceable emissions reductions.
Pennsylvania's ROP plan claims partial credit for shutdowns for
which the source ``banked'' emissions reductions, and the Commonwealth
claimed the entire shutdown credit for sources that did not bank their
emissions within the one year deadline set forth in Pennsylvania's
banking rule. The ROP plan reflects shutdowns from twenty VOC sources
in the Philadelphia nonattainment area. These credits are ineligible
for use as future ERCs, or to offset emissions from new sources under
the Commonwealth's new source review regulation. Use of permanent,
enforceable shutdowns for ROP planning is acceptable, provided the
reductions are not ``double-counted'' in the plan (e.g., industrial
growth estimates do not account for the shutdowns).
Architectural and Industrial Maintenance Coatings (AIM) Rule
Emission reductions have been projected for AIM coatings due to the
expected promulgation by the EPA of a national reformulation rule.
These coatings include a host of field-applied surface coatings used
for household, commercial, and industrial applications--including for
example, paints, highway coatings, and architectural finishes.
Tier I Federal Motor Vehicle Control Program
EPA promulgated a national rule establishing ``new car'' standards
for 1994 and newer model year light-duty vehicles and light-duty trucks
on June 5, 1991 (56 FR 25724). Since the standards were adopted after
the Clean Air Act was amended in 1990, the resulting emission
reductions are creditable toward ROP plans. Due to the three-year
phase-in period for this program, and the associated benefits stemming
from fleet turnover, the reductions were not significant prior to 1996.
FMVCP programs promulgated as a result of the Clean Air Act as amended
in 1990 are creditable for ROP planning purposes.
Off-Road Use of Reformulated Gasoline
The use of reformulated gasoline will also result in reduced
emissions (for both exhaust and evaporative emissions) from off-road
engines such as outboard motors for boats and lawn mower engines. This
measure is creditable toward the ROP requirements of the Act.
IM240 Enhanced Vehicle Inspection and Maintenance (I/M) Program
The I/M program described in the Commonwealth's ROP plan is a
contractor-operated, centralized, IM240 inspection program. This
program was conditionally approved by EPA in August of 1994. However,
since that time, Pennsylvania suspended operation of this program,
terminated the test inspector contract, and began the rule adoption
process for a decentralized program as a replacement for the
centralized program. Pennsylvania submitted a new I/M program SIP to
EPA, under authority provided by the National Highway Systems
Designation Act of 1995, on March 22, 1996, which EPA proposed to
conditionally approve on October 3, 1996. Pennsylvania has not revised
the ROP plan for Philadelphia to reflect the significant changes to the
I/M program since the time the ROP plan was submitted to EPA. I/M
program emissions reductions are creditable toward ROP planning.
VOC/NOX Reasonably Available Control Technology (RACT) Rules
The Act requires states to adopt regulatory programs to control
major sources of VOCs and NOX located in ozone nonattainment
areas--with the definition of ``major'' becoming increasingly stringent
based upon the nonattainment area classification. RACT is a generic
term referring to the variety of controls available to reduce emissions
from a source or class of sources. EPA has issued guidelines (i.e.,
CTGs) for RACT for more than 30 VOC source categories, with plans to
issue at least 15 more. Additionally, EPA has issued Alternative
Control Techniques (ACTs) for specific classes of NOX sources.
Pennsylvania has adopted a ``case-by-case'' regulatory approach to
RACT, which applies to the Philadelphia area. Individual sources are
reviewed independently to determine the level of RACT that source must
enact. RACT improvements required by the Clean Air Act of 1990 are
creditable toward ROP plans.
Employee Trip Reduction (ETR) Program
This program requires employers having 100 or more employees in a
subject nonattainment area to develop and submit trip reduction plans
and to reduce their employees trips, as measured by average passenger
occupancy (APO) levels. A regulation implementing this Clean Air Act
requirement was adopted by Pennsylvania, but was stayed by the Governor
before it became effective. Congress eventually amended the Clean Air
Act to change the nature of the ETR requirement to allow for its
voluntary implementation. Mandatory ETR programs are creditable toward
ROP planning.
Consumer Products National Rule
EPA is in the process of adopting regulations to control VOC
emissions from consumer products, through manufacturer reformulation of
these types of products. These products include household, personal,
and automotive related-products which
[[Page 55257]]
contain VOCs. Pennsylvania has claimed credit toward the ROP plan for
implementation of this national rule. The consumer products national
rule is creditable toward ROP planning.
Traffic Line Painting Reformulation
This measure would require conversion from VOC to water based
traffic line paints by the Pennsylvania Department of Transportation
(PennDOT). This measure would take the form of a consent decree with
PennDOT requiring continued use of these water-based coatings.
Pennsylvania has taken credit for this measure in its post-1996 plan.
Only through a mandatory enforcement mechanism (e.g., a binding consent
decree) would this measure be creditable toward ROP planning.
Highway Vehicle Control NOX Reductions
This measure includes total NOX reductions associated with
several mobile source programs. Several programs which would achieve
NOX reductions, in addition to any other benefits, include the
enhanced I/M program, the Federal Motor Vehicle Control Program
(FMVCP), and Phase II of the reformulated gasoline program.
Pennsylvania has apparently taken credit for all NOX reductions
stemming from mobile source measures in place, which provide reductions
in the Philadelphia area. However, it is unclear which specific
measures are included in the Commonwealth's estimates.
Ozone Transport Region Industrial/Utility Boiler Controls
The Ozone Transport Commission adopted a memorandum of
understanding (MOU) for a control strategy to address industrial
NOX emissions, primarily those generated by electric utilities.
The MOU recommends reductions (from 1990 levels) from 250 million Btu
and larger fossil fuel fired indirect transfer units of NOX.
Additionally, 15 megawatt electric generating units would be capped at
1990 emissions levels. The reductions would take place through two
phases, beginning in 1999. Pennsylvania has claimed these NOX
reductions in its post-1996 ROP.
Analysis of Control Measures:
Emission Control Measures for the Philadelphia Ozone Nonattainment Area
Post-1996 Plan
VOC Control Strategies:
IM240 Program
Federal Reformulated Gasoline
Federal Motor Vehicle Control Program (Tier I vehicle standards)
Employer Trip Reduction Program
Stage II Vapor Recovery at Gasoline Stations
VOC/NOX RACT
Select Industrial Rule Effectiveness Improvements (80%90%)
Federal Architectural Industrial and Maintenance Coatings Rule
Industrial Facility/Process Shutdowns
Federal Consumer Products Rule
Federal Autobody Refinishing Rule
Traffic Line Paint Reformulation
Treatment, Storage, and Disposal Facility RCRA National Rule
NOX Control Strategies:
Total Highway Vehicle-related Reductions
Industrial Facility/Process Shutdowns
Industrial/Utility Boiler NOX Controls
The Commonwealth's plan projects emissions reductions from each of
the above control strategies for the year 2005 and, therefore
reductions were estimated by the Commonwealth for the evaluation year
2005. However, for the post-1996 plan, the Commonwealth is required to
project reductions expected in 1999 for any claimed control strategy,
in order to demonstrate that the area will meet its 1999 target level,
and therefore demonstrate reasonable-further-progress for the 1999
milestone date specified by the Act.
Without a 1999 milestone target level and a projection for 1999
emissions reductions associated with the control strategies claimed
within the post-1996 ROP plan, it is impossible to determine if
reasonable progress has been achieved for the period from 1996 to 1999.
Several of the control strategies contained in the post-1996 plan
are not creditable toward ROP under the Act, since the state has not
adopted rules for those programs, or the programs have been stayed and
are not presently being implemented as stated by the post-1996 plan.
One example is the enhanced IM240 program described in the
Commonwealth's SIP, which has been subsequently replaced with a test-
and-repair ASM enhanced I/M program. Another example, the ETR which was
stayed, and is no longer being implemented as a mandatory control
measure, as described in the post-1996 ROP plan.
Since EPA cannot determine if the measures contained in the
Philadelphia post-1996 plan are sufficient to demonstrate reasonable-
further-progress from 1996 to 1999 or from 1999 to 2002, EPA is not
evaluating the creditability of specific measures or the levels of
emissions reductions claimed by the Commonwealth for specific measures
in the plan, at this time.
Contingency Measures
Per sections 172(c)(9) and 182(c)(9) of the Act, states must
include contingency measures in their rate-of-progress plan submittals
for ozone nonattainment areas classified as moderate or above.
Contingency measures are measures which are to be immediately
implemented if reasonable-further-progress is not achieved in a timely
manner, or if the areas do not attain the NAAQS standard by the
applicable date mandated by the Act. EPA's interpretation of this Clean
Air Act requirement is set forth in The General Preamble to Title I (57
FR 13498), which requires that the contingency measures should, at a
minimum, ensure that emissions reductions continue to be made if
reasonable progress (or attainment) is not achieved in a timely manner.
Contingency measures must be fully adopted rules or measures but do not
need to be implemented until they are triggered by a failure to either
meet a milestone or attain the NAAQS.
States must show that their contingency measures can be implemented
with minimal further action on their part, and with no additional
rulemaking action (e.g., public hearings, legislative review, etc.).
Analysis of the Commonwealth's Contingency Measures
The Commonwealth's post-1996 plan does not specify any contingency
measures to be applied if reasonable-further-progress is not achieved
by the 1999 milestone date. Pennsylvania's post-1996 plan indicates the
state will have more control measures in place than is needed to
demonstrate reasonable-further-progress by 2005, and that the
``surplus'' of emissions reductions generated by these control measures
eliminates the necessity for contingency measures, since this surplus
could be used toward any shortfall.
EPA disagrees with this rationale. The contingency measures must be
available in 1999 if reasonable progress is not achieved by that
milestone date, not 2005 as the Commonwealth's plan provides for. If
EPA determines there is an emissions reduction shortfall in 1999,
measures which have already been enacted by the Commonwealth or the
federal government would not serve to alleviate the shortfall. Only
through implementation of additional measures (i.e., contingency
measures), or through
[[Page 55258]]
early implementation of measures slated for the future, could
additional emissions reductions occur.
Therefore, the Commonwealth's plan is not approvable at this time,
due to a lack of sufficient continency measures to offset sufficient
ozone precursor emissions in the year after a shortfall, or failure to
achieve ROP, has been identified.
However, the Commonwealth has submitted a contingency measure plan
as part of its September 1996 15% plan submittal. EPA will act upon
that submittal, including the contingency measures contained within, in
a separate rulemaking from today's action.
Proposed Rulemaking Action
EPA has evaluated this submittal for consistency with the Clean Air
Act, applicable EPA regulations, and EPA policy. Pennsylvania's post-
1996 rate-of-progress plan for the Philadelphia nonattainment area will
not achieve sufficient reductions to meet the rate-or-progress
requirements of section 182(c)(2)(B) of the Act. Pennsylvania has not
projected emissions growth for the period from 1996-1999, nor has the
Commonwealth calculated an interim ``target level'' of emissions for
1999, by which to measure its rate-of-progress in attaining the ozone
NAAQS. Instead, the Commonwealth's plan evaluates emissions reductions
for the period from 1990 to 2005--ignoring any interim evaluation
milestones. Several of the measures listed in the plan (to occur by
2005) have been halted or stricken from the Commonwealth's regulations,
and are therefore invalid toward meeting the ROP requirement for the
1999 milestone year.
Additionally, the baseline 1990 emissions inventory contained in
the Commonwealth's post-1996 plan has been superseded by a revised
formal base year inventory which was submitted in September of 1996 as
part of the Commonwealth's 15% RFP plan. The inventory from which many
of the control measure emissions reductions for the Commonwealth's
post-1996 plan (which contains projected emissions reductions from 1990
to 2005) were determined is therefore invalid. The post-1996 ROP plan
control measure reductions must be recalculated based upon the
Commonwealth's revised base year inventory.
Finally, the Commonwealth's plan does not contain contingency
measures. Under sections 172(c)(9) and 182(c)(9) of the Act, the
Commonwealth is required to adopt such backstop measures in the event
an emissions shortfall occurs in the 1999 milestone year.
In light of the above deficiencies, EPA is proposing to disapprove
this SIP revision, which was submitted November 12, 1994, under
sections 110(k)(3) and 301(a) of the Act. The submittal does not
satisfy the requirements of section 182(c)(2)(B) of the Act regarding
the post-1996 rate-of-progress plan, nor the requirement of section
172(c)(9) of the Clean Air Act regarding contingency measures.
EPA is soliciting public comments on the issues discussed in this
document, or on other matters relevant to the demonstration of
reasonable-further-progress toward attainment of the ozone NAAQS for
the period from 1996 to 1999. These comments will be considered before
taking final action. Interested parties may participate in the Federal
rulemaking procedure by submitting written comments to the EPA Regional
office listed in the ADDRESSES section of this document.
The Agency has reviewed this request for revision of the federally-
approved State implementation plan for conformance with the provisions
of the 1990 Clean Air Act, as enacted on November 15, 1990. The Agency
has determined that this action does not conform with the statute and
therefore must be disapproved.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Administrative Requirements
Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
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. 5 U.S.C. 603 and 604.
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's disapproval of the state request under Section 110 and
subchapter I, part D of the CAA does not affect any existing
requirements applicable to small entities. Any preexisting federal
requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, EPA certifies that this
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new Federal requirements.
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
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.
EPA has determined that the approval action proposed/promulgated
does not include a Federal mandate that may result in estimated 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 preexisting requirements under State or local law, and imposes
no new Federal requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
The Administrator's decision to approve or disapprove the
Commonwealth's post-1996 rate-of-progress plan SIP revision will be
based on whether it meets the requirements of section 110(a)(2)(a)-(K)
and part D of the Clean Air Act, as amended, and EPA regulations in 40
CFR Part 51.
[[Page 55259]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 15, 1996.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 96-27472 Filed 10-24-96; 8:45 am]
BILLING CODE 6560-50-P
