[Federal Register Volume 61, Number 108 (Tuesday, June 4, 1996)]
[Rules and Regulations]
[Pages 28061-28067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13871]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA084-4018; FRL-5511-2]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Pennsylvania: Revocation of Determination of Attainment
of Ozone Standard by the Pittsburgh-Beaver Valley Ozone Nonattainment
Area and Reinstatement of Applicability of Certain Reasonable Further
Progress and Attainment Demonstration Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is providing notification of its determination that the
Pittsburgh-Beaver Valley ozone nonattainment area is no longer
attaining the National Ambient Air Quality Standard (NAAQS) for ozone,
based on monitored violations of the standard during the 1995 ozone
season. EPA is also reinstating the applicability of certain reasonable
further progress (RFP) and attainment demonstration requirements, along
with certain other requirements, of Part D of Title I of the Clean Air
Act for the Pittsburgh-Beaver Valley ozone nonattainment area because
the area is no longer in attainment for ozone.
EFFECTIVE DATE: This final rule is effective on August 15, 1996.
ADDRESSES: 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 and the Pennsylvania Department of Environmental Protection,
Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg,
Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 566-2181, at the
EPA Region III office, or at pino.maria@epamail.epa.gov via e-mail.
SUPPLEMENTARY INFORMATION: In a policy memorandum dated May 10, 1995,
from John Seitz, Director, Office of Air Quality Planning and
Standards, to the Regional Air Division Directors, entitled
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,'' EPA stated that it is reasonable to
interpret provisions regarding reasonable further progress (RFP) and
attainment demonstrations, along with certain other related provisions,
so as not to require certain SIP submissions if an ozone nonattainment
area subject to those requirements is monitoring attainment of the
ozone standard.
Based on this memo, on July 19, 1995, EPA published a final
determination (60 FR 37015) that the Pittsburgh-Beaver Valley and
Reading ozone nonattainment areas had attained the ozone standard and
that the SIP requirements for reasonable further progress, (namely the
15% plans and attainment demonstrations required under section
182(b)(1) of the Clean Air Act, and the contingency measures required
under section 172(c)(9) of the Clean Air Act) no longer applied so long
as these areas did not violate the ozone standard. The notice also
stated that the sanctions clocks started on January 18, 1994, for these
areas for failure to submit the RFP requirements were halted. The
effective date of the final determination occurred one day after the
sanction clocks expired and these areas were, in fact, under the offset
sanction at the time of EPA's final determination. However, the
sanctions were lifted as a result of EPA's final determination for the
same reason that the final determination would have halted the
sanctions clocks.
EPA has reviewed the 1995 ambient air quality data (consistent with
the requirements contained in 40 CFR part 58 and recorded in AIRS) for
the Pittsburgh-Beaver Valley ozone nonattainment area (the Pittsburgh
area), and determined that the area is no longer in attainment. During
the 1995 ozone season 17 exceedances of the standard were recorded, and
two monitors in the Pittsburgh area recorded violations of the ozone
NAAQS. The current design value for the Pittsburgh area, computed using
the ozone monitoring data for 1993 through 1995, is 133 parts per
billion (ppb). The average annual number of expected exceedances is 8.2
for that same time period. An area is considered in nonattainment when
the average annual number of expected exceedances is greater than 1.0.
A more detailed summary of the ozone monitoring data for the area is
provided in the Technical Support Document for this notice.
Other specific details of the attainment determination revocation
and the reinstatement of the 15% plan, attainment demonstration, and
contingency measures requirements for the Pittsburgh area, and the
rationale for EPA's proposed action are explained in the February 12,
1996 notice of proposed rulemaking (NPR) (61 FR 5360) and will not be
restated here. Both positive and adverse public comments were received
on the NPR.
During the public comment period EPA received one comment letter in
favor of the proposal, and two letters that contained adverse comments.
Following meetings with the representatives of the Pennsylvania
Department of Environmental Protection, EPA subsequently received
another letter from one of the commenters, the Commonwealth of
Pennsylvania, setting forth a proposed schedule of milestones for
meeting the attainment demonstration requirement. The following is a
summary of the adverse comments received on the NPR, and EPA's response
to those comments.
Comment #1: The Commonwealth of Pennsylvania opposed EPA's
proposed reinstatement of the requirements of sections 182(b)(1) and
172(c)(9) on August 15, 1996. According to the Commonwealth, the August
15, 1996 date did not allow the state enough time to develop and adopt
the necessary regulations and make the required submissions. The
Commonwealth contended that the August 15, 1996 date was not consistent
with EPA's own policy of providing a reasonable time taking into
account the pertinent circumstances, did not allow sufficient time for
the Southwestern Pennsylvania Ozone Stakeholders process (established
by the Commonwealth) to be completed, was inconsistent with the time
frame for inspection and maintenance (I/M) program submissions
established by the National Highway Systems Designation Act (NHSDA) of
1995, and did not provide sufficient time for the state rulemaking
process to occur. Subsequently, following meetings between EPA and the
state, in a letter dated May 17, 1996, the Commonwealth proposed a
schedule of milestones for submissions from the Commonwealth to EPA to
comply with the attainment demonstration requirement for the Pittsburgh
area. That schedule includes milestone dates beginning on August 15,
1996, and ending on December 31, 1997.
Response: First, with respect to the proposed August 15, 1996 date
for the reinstatement of the 15% plan and section 172(c)(9) contingency
measures requirements, for the reasons stated in the proposal EPA
continues to believe
[[Page 28062]]
that date is reasonable and provides the state with an adequate time to
prepare and adopt a SIP revision to comply with those requirements. The
reasonableness of that date is conclusively demonstrated by the fact
that the Commonwealth submitted to EPA a 15% plan, and the contingency
measures for the Pittsburgh area, as a SIP revision, on March 22, 1996.
EPA notes that this submittal also demonstrates that there is no
inconsistency between the submittal date for an interim I/M program
under the NHSDA provisions (March 27, 1996), and the August 15, 1996
date for the reinstatement of the requirements as the state is relying
in its 15% plan on such an I/M program, which it submitted to EPA on
March 22, 1996. EPA worked with the Commonwealth to develop this 15%
plan, and provided comments on the plan for the public record.
Therefore, EPA is adopting in this final action the proposed August 15,
1996 date for the reinstatement of the 15% plan and contingency
measures requirements.
Second, with respect to the date for the reinstatement of the
attainment demonstration requirement of section 182(b)(1)(A) of the
CAA, EPA believes that the comments received indicate that it is
appropriate for EPA to modify its proposal to allow additional time for
the submission of all of the aspects or elements of an attainment
demonstration. EPA believes that there is a range of time periods that
would satisfy the criteria of the May 10, 1995 policy regarding a
reasonable time for the reinstatement of the suspended requirements and
that it is also permissible to establish a schedule of milestones
requiring the submission of various elements of an attainment
demonstration culminating with the submission of fully-adopted,
enforceable regulations necessary to implement control measures
necessary to attain the ozone standard. While EPA does not agree with
all of the comments made by the Commonwealth, EPA believes that the
schedule proposed by the Commonwealth in the letter of May 17, 1996 is
a reasonable one in light of the particular circumstances pertinent to
the submission of an attainment demonstration for the Pittsburgh-Beaver
Valley ozone nonattainment area.
Under that schedule, the attainment demonstration would be split
into a number of elements, the first being due to be submitted to EPA
on August 15, 1996, EPA's original proposed date for the reinstatement
of the attainment demonstration requirement. That first element, the
photochemical oxidant modeling demonstration that identifies VOC and
NOX reduction levels necessary for attainment of the ozone NAAQS
in the area and a list of available control strategies, is the
necessary first step in the process of putting together a complete
attainment demonstration for the Pittsburgh area. EPA believes that the
August 15, 1996 date is a reasonable date for this first element as it
will provide adequate time for the completion of the modeling efforts
but ensure that the Commonwealth is moving forward expeditiously
towards the submission of a full attainment demonstration.
Under the schedule, the second element, an official SIP revision
(for which the Commonwealth has completed the public notice and hearing
process) containing a photochemical oxidant modeling demonstration and
a list of available control strategies must be submitted by the
Commonwealth to EPA by October 1, 1996. This will provide an adequate
opportunity for public input on these matters through a notice and
comment process at the state level and through the Southwestern
Pennsylvania Ozone Stakeholders process established by the state for
addressing Pittsburgh's ozone problems, while still ensuring that these
issues will be addressed in an expeditious manner.
The third element under the schedule is a SIP submission from the
Commonwealth to EPA that must be made by April 1, 1997. This submission
must consist of any emission reduction strategies selected by the
Commonwealth for the Pittsburgh area for which new regulations are not
required and an enforceable commitment, which has undergone public
notice and hearing, to submit to EPA by December 31, 1997, as final,
fully-adopted and enforceable regulations any emission reduction
strategies selected by the Commonwealth for the Pittsburgh area for
which new regulations are required. This will ensure that any selected
strategies that do not require new regulations are submitted to EPA
prior to the 1997 ozone season for incorporation in the SIP and that
any selected strategies for which new regulations are required will be
submitted in an expeditious time frame, but one that will provide
necessary additional time for state rulemaking activities. Submission
of those regulations by December 31, 1997, should provide adequate lead
time for the implementation of such regulations and EPA action
regarding those regulations prior to the 1998 ozone season.
The final element under the schedule is the December 31, 1997 date
for the submission of final, fully-adopted and enforceable regulations
to implement all selected control strategies for which new regulations
are necessary.
EPA believes that this schedule represents a reasonable
accommodation between the need for expeditious compliance with the
reinstated attainment demonstration requirement and the time for the
state regulatory process, the technical work regarding the underlying
modeling, and allowing for public input regarding these efforts through
the state notice and comment process and the Commonwealth's stakeholder
process, which is scheduled for completion by the end of 1996. EPA
notes, however, that the obligations regarding submittals to EPA
established under this milestone schedule exist regardless of the
outcome of the stakeholder process.
EPA rejects the contention of the commenter that the dates for the
reinstatement of the suspended requirements were based on a commitment
to establish such dates in a settlement agreement to settle pending
litigation. No settlement agreement regarding the proposed dates had
been entered into at the time of the proposal and the fact that EPA is
establishing the dates in this final action based on a careful
evaluation of all circumstances and comments on the proposal, including
the Commonwealth's letter of May 17, 1996, demonstrates that EPA had
not committed itself to the August 15, 1996 date at the time of the
proposal.
The sanctions consequences of this schedule are discussed below in
the CONCLUSIONS section of this notice.
Comment #2: ``Transport of ozone from outside Pennsylvania
into the Pittsburgh-Beaver Valley area was not considered.''
Response: While Pennsylvania has made great strides in improving
the air quality in the Pittsburgh area, ozone remains a problem. EPA
believes that the Pittsburgh area generates substantial emissions of
volatile organic compounds (VOC) and oxides of nitrogen (NOX),
which contribute significantly to the nonattainment problem there. This
was demonstrated in 1995, when exceedances were recorded in Pittsburgh,
and ozone concentrations at the border and in all other western and
central Pennsylvania areas were below the standard. The Commonwealth
has performed no modeling analyses to demonstrate that the ozone
problem in the Pittsburgh area is caused by transport from upwind
sources. An adequate technical
[[Page 28063]]
demonstration, including emissions data and a modeling analysis, must
be provided to support any claim of transport-dominated nonattainment.
Comment #3: ``The 1995 ozone season data was not officially
submitted to EPA until November 1995.''
Response: While the Commonwealth did not officially submit the data
to EPA until November 1995, the Commonwealth was aware of the
violations much sooner. Although the data had to go through official
quality assurance procedures, the Commonwealth had a strong indication
that the area had violated the ozone NAAQS before November 1995. In
fact, in an October 11, 1995 letter to EPA, Governor Ridge acknowledged
the violations of the ozone NAAQS that occurred in the Pittsburgh area
during the summer of 1995.
Comment #4: ``The 1995 ozone season area data was unexpected
and unusual in comparison to recent data.''
Response: As shown in the tables below, the area was not without
exceedances in recent years. From 1987 to 1995, the number of
exceedances varied from year to year with no discernable pattern. This
variation is due to year-to-year variations in emissions and
meteorological conditions.
Pittsburgh Area: Number of Ozone Exceedances: 1987-1995
------------------------------------------------------------------------
1987 1988 1989 1990 1991 1992 1993 1994 1995
------------------------------------------------------------------------
10..... 41 5 0 2 0 1 4 17
------------------------------------------------------------------------
Because the area has not adequately reduced its VOC and NOX
emissions, it is subject to ozone exceedances whenever meteorological
conditions are conducive to ozone formation. One of the goals of the
Clean Air Act is to minimize the health risks that people encounter.
Since meteorological conditions cannot be controlled, the way to reduce
health risks due to ozone in the Pittsburgh area is to reduce the
anthropogenic emissions of VOC and NOX, both of which are
considered precursor pollutants. Furthermore, many VOCs are listed as
hazardous air pollutants under section 112 of the Clean Air Act, and
nitrogen dioxide (NO2) is individually regulated by EPA because of
its health and welfare effects. As a result, the reduction of VOC and
NOX emissions will reduce the health risks that are associated
with exposure to VOC and NOX, as well as reducing the health risks
due to elevated ozone levels.
Finally, the comment letter referred to comments that this same
commenter made on another, related action, EPA's February 7, 1996
proposed disapproval of Pennsylvania's ozone redesignation request for
the Pittsburgh area (61 FR 4598). On May 1, 1996, EPA responded to
those comments in the final rule disapproving Pennsylvania's
redesignation request for the Pittsburgh area (61 FR 19193). Those
comments and EPA's responses will not be restated here but are
incorporated by reference to the extent relevant to this action.
The second commenter's position is that EPA's July 19, 1995 waiver
of the 15% plan and attainment demonstration requirements for the
Pittsburgh area was unlawful because it relieved moderate ozone
nonattainment areas from requirements established for those areas in
sections 172, 176, 179, 181, and 182 of the Clean Air Act.
Comment #1: ``An area cannot be removed from nonattainment
status except by the redesignation process under section 107(d)(3),
which provides that the redesignation cannot occur unless the area not
only attained the standard but also met several other prerequisites.
Because the July 19 decision did not purport to find--and had no basis
for finding--that these other prerequisites had been met, and did not
purport to relieve the Pittsburgh-Beaver Valley area of its
nonattainment status, that decision could not lawfully exempt the area
from the requirements imposed by sections 172, 176, 179, 181, and
182.''
Response: The rationale and justification for EPA's July 19, 1995
action were thoroughly explained in that rulemaking and EPA
incorporates by reference the explanations provided therein as to the
lawfulness of EPA's action. EPA also incorporates by reference the
discussions of the rationales and bases for such actions contained in
other notices regarding similar actions taken with respect to other
ozone nonattainment areas--Salt Lake City, Utah (60 FR 36723, July 18,
1995), Muskegon and Grand Rapids, Michigan (60 FR 37366, July 20,
1995), and Cleveland, Ohio (61 FR 20458, May 7, 1996). EPA also notes
that it disapproved the Commonwealth's November 13, 1993 redesignation
request for the Pittsburgh area on May 1, 1996 (61 FR 19193), and that
the issue of whether the July 19, 1995 action had any impact on EPA's
evaluation of the redesignation request has now been rendered moot.
Comment #2: The proposal ``makes no mention of either the
conformity requirements of section 176(c) or the federal implementation
plan requirements of section 110(c).'' The same ozone NAAQS violations
that compel reimposition of the section 182(b)(1) and 172(c)(9)
requirements also compel imposition of the conformity and federal
implementation plan (FIP) requirements as well--and on the same
schedule.
Response: With respect to the conformity requirements, EPA believes
that they are not affected by this action. Rather, the conformity
requirements are as they were explained in the May 1, 1996 disapproval
of the Pittsburgh redesignation request and maintenance plan (61 FR
19193): ``When the final disapproval of the maintenance plan is
effective, the Pittsburgh area will no longer be able to demonstrate
conformity to the submitted maintenance plan pursuant to the
transportation conformity requirements in 40 CFR 93.128(I). Since the
submitted maintenance plan budget will no longer apply for
transportation conformity purposes, the build/no-build and less-than-90
tests will apply pursuant to 40 CFR 93.122. In addition, the
Commonwealth submitted a 15% rate-of-progress plan (15% plan) on March
22, 1996. Ninety days after this submittal date, the emissions budget
contained in this 15% plan will apply for conformity purposes pursuant
to 40 CFR 93.118 and 93.128(a)(1)(ii), as well as the build/no-build
test under 40 CFR 93.122.''
With respect to the FIP clock, EPA believes that the FIP clock is
analogous to the sanctions clock and, therefore, would be reinstated in
the same manner as the sanctions clock. Thus, the FIP clock, like the
sanctions clock, would resume as to the particular submission at issue,
with one day less than six months to run (the amount of time left on
the FIP clock at the time of the July 19, 1995 determination of
attainment).
For example, with respect to the 15% plan and contingency measure
requirements that are being reinstated as of August 15, 1996, the FIP
clock would
[[Page 28064]]
be reinstated at that time, with one day less than six months to run.
With respect to the elements of the attainment demonstration, the FIP
clock would resume as to each element two weeks after the due date for
each element (the date on which the sanctions would be reinstated if
the submission were not made), with one day less than six months to
run.
Comment #3: Since it is the commenter's position that the
requirements never ceased being applicable, the commenter agreed that
August 15, 1996 is ``a more than reasonable time from the Commonwealth
to meet those requirements.'' The commenter also stated that, ``Further
delay in these already long-overdue public health measures must not be
tolerated.''
Response: As stated above, EPA believed that August 15, 1996
provided the Commonwealth with a reasonable amount of time to develop
and submit a 15% plan, contingency measures, and an attainment
demonstration. However, for the reasons set out in this notice, EPA
believes that, considering the Commonwealth's particular circumstances
(including its regulatory adoption process and the Southwestern
Pennsylvania Ozone Stakeholders process) the Commonwealth needs time
beyond August 15, 1996 to complete an attainment demonstration for the
Pittsburgh area.
Conclusions
EPA has considered all the comments received, and is committed to
working with the Commonwealth to resolve the Pittsburgh area's ozone
problem. Towards that end, EPA is a member of the Southwestern
Pennsylvania Ozone Stakeholders Group and is participating in the
Stakeholders process to help identify appropriate control measures,
agreeable to all affected parties, that will bring the area into
attainment for ozone as quickly as possible, without causing an undue
economic burden to the citizens of the area.
Furthermore, EPA still believes that the August 15, 1996 date
provides the Commonwealth a reasonable amount of time to develop a 15%
plan and the contingency measures. As noted above, the Commonwealth
submitted to EPA a 15% plan, and the contingency measures, as an
official SIP revision on March 22, 1996. EPA worked with the
Commonwealth to develop this 15% plan and the contingency measures, and
provided comments on the plan for the public record.
Taking the individual circumstances the Commonwealth faces in
addressing its outstanding SIP requirements, including the
Commonwealth's rule adoption process and the Southwestern Pennsylvania
Ozone Stakeholders process, EPA has determined that it is reasonable to
allow more time than proposed for the submission of a full attainment
demonstration SIP.
EPA is still revoking the attainment determination for the
Pittsburgh area, and reinstating the RFP and attainment demonstration
requirements as of the effective date of this action. However, in lieu
of requiring the Commonwealth to submit the attainment determination
for the Pittsburgh area as a formal SIP revision by August 15, 1996,
EPA is establishing the following milestones.
(1) By August 15, 1996, the Commonwealth must submit to EPA, and
make available for public comment as a proposed SIP submission,
complete photochemical oxidant modeling for the Pittsburgh area which
identifies the VOC and NOx reductions levels necessary for attainment,
and a list of available control strategies.
(2) By October 1, 1996, the Commonwealth must submit to EPA a SIP
revision containing a photochemical oxidant modeling demonstration and
a list of available control strategies.
(3) By April 1, 1997, the Commonwealth must submit to EPA a full
SIP revision for those emission reduction strategies selected by the
Commonwealth for the Pittsburgh area for which new regulations are not
required.
(4) By April 1, 1997, the Commonwealth must submit to EPA a
committal SIP revision for those emission reduction strategies selected
by the Commonwealth for the Pittsburgh area that require new
regulations.
(5) By December 31, 1997, the Commonwealth must submit to EPA as a
SIP revision adopted final fully enforceable regulations encompassing
the emission reduction strategies contained in the committal SIP.
Unless the Commonwealth makes the required submittal to EPA, the
sanctions and sanction clocks halted by the July 19, 1995 action
suspending the attainment demonstration requirements at issue will be
reinstated, as to each of the submittals included in this milestone
schedule, two weeks after the date set for each of the submittals by
the Commonwealth to EPA. If the Commonwealth fails to make a submission
by the required date, the offset sanction would go back into effect two
weeks after the relevant milestone date, and the highway sanction clock
would be reinstated at that time where it was halted on July 19, 1995
(i.e., with approximately 6 months remaining). Sanctions or sanctions
clocks would be stopped if the Commonwealth makes the relevant overdue
submittal, if EPA affirmatively determines that the actual material
submitted by the Commonwealth contains the information necessary to
enable EPA to determine whether the Commonwealth's submission complies
with the pertinent milestone requirement. This determination would not
be a determination regarding the merits of the submission, but only a
determination as to whether it contains the necessary elements for EPA
to proceed to evaluate its merits. EPA shall make the determination as
to whether the submittal contains the necessary information within two
weeks of the actual submission date by the Commonwealth. EPA's
determination will be issued, in writing, in a letter to the Secretary
of the Pennsylvania Department of Environmental Protection and will be
publicly available.
In the event the Commonwealth makes a required submittal by the
pertinent milestone date, EPA shall, within two weeks of the milestone
date, make a determination, in writing, as to whether the actual
material submitted by the Commonwealth contains the information
necessary to enable EPA to determine whether the Commonwealth's
submission complies with the pertinent milestone requirement. If EPA
determines that the material submitted to EPA by the Commonwealth fails
to satisfy this minimum criterion, the offset sanction would be
reinstated upon that determination by EPA and the highway sanction
clock would be reinstated at that time where it was halted on July 19,
1995 (i.e., with approximately 6 months remaining). Sanctions or
sanctions clocks would be stopped if the Commonwealth subsequently
makes a submittal to cure the deficiencies identified by EPA, and if
EPA affirmatively determines in writing that the material submitted by
the Commonwealth cures the identified deficiencies. Again, EPA shall
make the determination as to the adequacy of the submittal within two
weeks of the date of the actual submittal to EPA. Each of the
determinations referenced in this paragraph will be made, in writing,
in a letter to the Secretary of the Pennsylvania Department of
Environmental Protection and made publicly available.
In those instances where EPA determines that the Commonwealth's
submittal does not contain the information necessary to enable EPA to
determine whether the Commonwealth's submission complies with the
pertinent milestone
[[Page 28065]]
requirement, EPA's letter so informing the Commonwealth will articulate
the basis for EPA's determination, specify the remedy, and identify the
actions necessary by the Commonwealth to remedy its submission to
satisfy the relevant milestone.
Although this departs from the normal approach to the cessation of
a sanctions clock or the lifting of sanctions that have already been
imposed, EPA believes that the above-described approach is justified in
the present unique circumstances. With this action, EPA is establishing
a new submission schedule for requirements that had been suspended by
the July 19, 1995 action taken pursuant to the May 10, 1995 policy.
Thus, in this case, the underlying requirements that had led to the
starting of sanctions clocks and the actual imposition of offset
sanctions for one day have been suspended since July 19, 1995. EPA
believes it is appropriate and justifiable to establish the previously-
described mechanism in the context of carrying out the terms of the
July 19, 1995 action in the event of a revocation of that determination
of attainment due to subsequent violations, and the establishment of a
milestone schedule that provides the state with a reasonable time to
comply with the reinstated requirements through the submission of
individual elements of those requirements over a period of time. That
mechanism provides that in the case where the Commonwealth makes a
submission to comply with the schedule herein established, sanctions
and sanctions clocks would not be reinstated unless EPA determines that
the submission was deficient following the process that was described
previously.
To ensure that such determinations are made by EPA expeditiously,
EPA is taking the unusual step of committing to make such
determinations within two weeks of a submission from the Commonwealth.
This will assure that sanctions are not either delayed or prolonged due
to inaction on the part of EPA. Thus, EPA has also committed to act
within two weeks on a submission from the Commonwealth made to cure a
previously-identified deficiency. This will assure that sanctions and
sanctions clocks reinstated due to an identified deficiency in a
submission will be turned off expeditiously in the event the
Commonwealth cures that deficiency. EPA views these commitments to act
within two weeks, to determine whether a submission contains the
information necessary to enable EPA to determine whether the
Commonwealth's submission complies with the milestone requirements, as
establishing an enforceable commitment or duty to make those
determinations. As noted earlier, these determinations are not
determinations on the merits of the individual submissions, but are
only determinations regarding whether the contents of the submission
are adequate for EPA to evaluate the merits of the submission. EPA also
emphasizes that, in the event the Commonwealth makes no submission at
all by the milestone date in the schedule, sanctions and sanctions
clocks would be reinstated automatically, without further action on the
part of EPA and would only be stopped upon an affirmative determination
by EPA regarding the adequacy of the submission.
As stated previously, in those instances where EPA determines that
the Commonwealth's submittal does not contain the information necessary
to enable EPA to determine whether the Commonwealth's submission
complies with the pertinent milestone requirement, EPA's letter so
informing the Commonwealth will articulate the basis for EPA's
determination, specify the remedy, and identify the actions necessary
by the Commonwealth to remedy its submission to satisfy the relevant
milestone.
EPA believes that these commitments are warranted under the special
circumstances presented by this situation, including the establishment
by EPA of a phased schedule for the submission of specified elements of
a full attainment demonstration upon the revocation of a determination
of attainment that had suspended the underlying requirements and the
fact that the Commonwealth has publicly committed to support this
schedule in a letter to the rulemaking docket. EPA also notes that due
to the fact that the offset sanctions had already been imposed in July
of 1995, there is no safety margin upon the reinstatement of the
suspended requirements, i.e., the sanction would be immediately
reimposed upon the reinstatement of the requirements. Thus, EPA
believes it is justifiable for it to establish a mechanism that, in the
event the Commonwealth makes a submission to comply with the milestone
schedule, will require EPA to act in an expeditious manner before the
sanctions would be reinstated.
With respect to the FIP clock, EPA believes that the FIP clock is
analogous to the sanctions clock and, therefore, would be reinstated in
the same manner as the sanctions clock. Thus, the FIP clock, like the
sanctions clock, would resume as to the particular submission at issue
with one day less than six months to run (the amount of time left on
the FIP clock at the time of the July 19, 1995 determination of
attainment).
Final Action
Due to the monitored violations of the ozone standard, EPA has
determined that the air quality in the Pittsburgh-Beaver Valley
moderate ozone nonattainment area is no longer attaining the ozone
standard. As a consequence, EPA is reinstating the requirements of
section 182(b)(1) concerning the submission of the 15% RFP plan and
ozone attainment demonstration and the requirements of section
172(c)(9) concerning contingency measures. In order to provide a
reasonable time for the Commonwealth to develop and submit these SIP
elements, EPA is revoking the determination of attainment and
reinstating these SIP requirements, effective beginning August 15,
1996.
EPA believes that, under the circumstances presented here, setting
an effective date of August 15, 1996 would provide the Commonwealth a
reasonable amount of time to submit a 15% plan and related contingency
measures. The Commonwealth submitted a 15% plan, and the contingency
measures, on March 22, 1996.
Furthermore, for the reasons set forth above, the following
schedule is reasonable for the development and adoption of an
attainment demonstration.
(1) By August 15, 1996, the Commonwealth must submit to EPA, and
make available for public comment as a proposed SIP submission,
complete photochemical oxidant modeling for the Pittsburgh area which
identifies the VOC and NOx reductions levels necessary for
attainment, and a list of available control strategies.
(2) By October 1, 1996, the Commonwealth must submit to EPA a SIP
revision containing a photochemical oxidant modeling demonstration and
a list of available control strategies.
(3) By April 1, 1997, the Commonwealth must submit to EPA a full
SIP revision for those emission reduction strategies selected by the
Commonwealth for the Pittsburgh area for which new regulations are not
required.
(4) By April 1, 1997, the Commonwealth must submit to EPA a
committal SIP revision for those emission reduction strategies selected
by the Commonwealth for the Pittsburgh area that require new
regulations.
(5) By December 31, 1997, the Commonwealth must submit to EPA as a
SIP revision adopted final fully enforceable regulations encompassing
[[Page 28066]]
the emission reduction strategies contained in the committal SIP.
Sanctions, sanction clocks, and FIP clocks will be reinstated as
discussed in this notice.
EPA's July 19, 1995, final determination put the Commonwealth on
notice that these requirements would be reinstated if a violation
occurred. Since the Commonwealth has been aware of the violations and
their consequences since last summer, EPA believes that this schedule
constitutes sufficient time for the Commonwealth to prepare to meet the
reactivated requirements. Sanctions will not be imposed if the
Commonwealth submits an attainment demonstration for the Pittsburgh-
Beaver Valley nonattainment area that EPA does not find deficient in
accordance with the schedule and process set out above. As discussed
above, the situation as to conformity is not changed by this rulemaking
action and is as it was explained in the May 1, 1995 final action
disapproving the redesignation request for the Pittsburgh-Beaver Valley
ozone nonattainment area.
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
the 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 this action 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 reinstates temporarily suspended
requirements in accordance with the terms of the July 19, 1995 action
that suspended them. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
As described in the NPR, EPA has determined that this action will
not affect a substantial number of small entities. EPA's action does
not create any new requirements but reinstates previously applicable
requirements that had temporarily been suspended.
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.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action regarding the Pittsburgh-Beaver Valley
ozone nonattainment area must be filed in the United States Court of
Appeals for the appropriate circuit by (Insert date 60 days from date
of publication). Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule for the purposes of judicial review nor does it extend the time
within which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action may not
be challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Ozone, Reporting and recordkeeping
requirements.
Dated: May 21, 1996.
W. Michael McCabe,
Regional Administrator, Region III.
Chapter I, title 40, of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart NN--Pennsylvania
2. Section 52.2037 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 52.2037 Control Strategy: Carbon Monoxide and Ozone .
* * * * *
(b)(1)(i) Determination--EPA has made a determination, effective
August 15, 1996, that the Pittsburgh-Beaver Valley ozone nonattainment
area (the Pittsburgh area) is no longer in attainment of the National
Ambient Air Quality Standard for ozone due to monitored violations of
the standard. Therefore, effective August 15, 1996, EPA is revoking the
determination of attainment for the area made July 19, 1995, and is
reinstating the reasonable further progress and attainment
demonstration requirements of section 182(b)(1) and contingency measure
requirements of section 172(c)(9) of the Clean Air Act beginning on
August 15, 1996. With regard to the attainment demonstration
requirements, EPA has determined that the following schedule is
reasonable for the development, adoption, and submittal of an
attainment demonstration by the Commonwealth of Pennsylvania (the
Commonwealth).
(A) By August 15, 1996, the Commonwealth must submit to EPA, and
make available for public comment as a proposed SIP submission,
complete photochemical oxidant modeling for the Pittsburgh area which
identifies the VOC and NOX reductions levels necessary for
attainment, and a list of available control strategies.
(B) By October 1, 1996, the Commonwealth must submit to EPA a SIP
revision containing a photochemical oxidant modeling demonstration and
a list of available control strategies.
(C) By April 1, 1997, the Commonwealth must submit to EPA a full
SIP revision for those emission reduction strategies selected by the
Commonwealth for the Pittsburgh area for which new regulations are not
required.
(D) By April 1, 1997, the Commonwealth must submit to EPA a
committal SIP revision for those emission reduction strategies selected
by the Commonwealth for the Pittsburgh area that require new
regulations.
(E) By December 31, 1997, the Commonwealth must submit to EPA as a
SIP revision adopted final fully enforceable regulations encompassing
the emission reduction strategies contained in the committal SIP.
(ii) Unless the Commonwealth makes the required submittal to EPA,
the sanctions and sanction clocks halted by the July 19, 1995 action
suspending the attainment demonstration requirements at issue will be
reinstated, as to each of the submittals included in this milestone
schedule, two weeks after the date set for each of the submittals by
the Commonwealth to EPA. If the Commonwealth fails to make a submission
by the required date, the offset sanction would go back into effect two
weeks after the relevant milestone date, and the highway sanction clock
would be reinstated at that time where it was halted on July 19, 1995
(i.e., with approximately 6 months remaining). Sanctions or sanctions
clocks would be stopped if the Commonwealth makes
[[Page 28067]]
the relevant overdue submittal, if EPA affirmatively determines in
writing that the actual material submitted by the Commonwealth contains
the information necessary to enable EPA to determine whether the
Commonwealth's submission complies with the pertinent milestone
requirement. EPA shall make the determination, in writing, as to
whether the submittal contains the necessary information within two
weeks of the actual submission date by the Commonwealth. In the event
the Commonwealth makes a required submittal by the pertinent milestone
date, EPA shall, within two weeks of the milestone date, make a
determination, in writing, as to whether the actual material submitted
by the Commonwealth contains the information necessary to enable EPA to
determine whether the Commonwealth's submission complies with the
pertinent milestone requirement. If EPA determines that the material
submitted to EPA by the Commonwealth fails to satisfy this minimum
criterion, the offset sanction would be reinstated upon that
determination by EPA and the highway sanction clock would be reinstated
at that time where it was halted on July 19, 1995 (i.e., with
approximately 6 months remaining). Sanctions or sanctions clocks would
be stopped if the Commonwealth subsequently makes a submittal to cure
the deficiencies identified by EPA, and if EPA affirmatively determines
in writing that the material submitted by the Commonwealth cures the
identified deficiencies. EPA shall make the determination as to the
adequacy of the submittal within two weeks of the date of the actual
submittal to EPA. Each of the determinations referred to in this
subparagraph shall be made in writing, in a letter to the Secretary of
the Pennsylvania Department of Environmental Protection and made
publicly available. In those instances where EPA determines that the
Commonwealth's submittal does not contain the information necessary to
enable EPA to determine whether the Commonwealth's submission complies
with the pertinent milestone requirement, EPA's letter so informing the
Commonwealth will articulate the basis for EPA's determination, specify
the remedy, and identify the actions necessary by the Commonwealth to
remedy its submission to satisfy the relevant milestone. With respect
to the 15 percent plan and contingency measure requirements that are
being reinstated as of August 15, 1996, the FIP clock will be
reinstated at that time, with one day less than six months to run. With
respect to the elements of the attainment demonstration, the FIP clock
will resume as to each element (the date on which the sanctions would
be reinstated if the submissions were not made), with one day less than
six months to run.
* * * * *
[FR Doc. 96-13871 Filed 6-3-96; 8:45 am]
BILLING CODE 6560-50-P
