[Federal Register Volume 62, Number 110 (Monday, June 9, 1997)]
[Rules and Regulations]
[Pages 31343-31349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14987]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 099-4063; FRL-5837-6]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; 15 Percent Plan and 1990 VOC Emission Inventory for the
Philadelphia Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final rulemaking.
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SUMMARY: EPA is granting conditional interim approval of the State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania, for the Philadelphia ozone nonattainment area, to meet
the 15 percent reasonable further progress (RFP, or 15% plan), also
known as rate-of-progress requirements of the Clean Air Act. EPA is
granting conditional interim approval because the 15% plan submitted by
Pennsylvania for the Philadelphia area relies on the inspection and
maintenance (I/M) program that received a conditional interim approval.
Finally, EPA is approving the Philadelphia 1990 VOC emission inventory
with certain exceptions as explained herein.
DATES: This action is final on July 9, 1997.
[[Page 31344]]
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
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: Cynthia H. Stahl, Ozone/Carbon
Monoxide and Mobile Sources Section (3AT21), USEPA--Region III, 841
Chestnut Building, Philadelphia, Pennsylvania 19107, or by telephone
at: (215) 566-2180 or via e-mail at: stahl.cynthia@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: On March 11, 1997, EPA proposed conditional
interim approval of the Philadelphia 15% plan and the 1990 VOC emission
inventory (62 FR 11131). The basis for EPA's action is that the
Philadelphia 15% plan on its face achieves the required 15% emission
reduction but does not contain the required verification of emission
calculations necessary for full approval and relies on the Pennsylvania
Inspection and Maintenance (I/M) rule that received final conditional
interim approval on January 28, 1997 (62 FR 4004). The details of the
September 12, 1996 Pennsylvania submittal are contained in the March
11, 1997 notice and accompanying technical support document and will
not be reiterated here. The discussion here will address additional
information submitted by Pennsylvania on April 10, 1997 and EPA's
responses to public comments received on the proposed rulemaking
notice. This action is being taken under section 110 of the Clean Air
Act (the Act).
I. Pennsylvania DEP's April 10, 1997 Supplement
Pennsylvania submitted a letter to EPA on April 10, 1997, within
the required time frame, committing to satisfy all the conditions
listed by EPA in the proposed rulemaking notice and within the time
frames required by that notice. Included in its April 10, 1997 addendum
is additional documentation to satisfy some of those conditions listed
by EPA. Specifically, Pennsylvania submitted additional stationary
source documentation (identified as Attachment 1 of its addendum) for
the shutdown credits claimed in the 15% plan. Part of this
documentation is the detailed emission inventory breakdown on a unit by
unit basis for Philadelphia County that was not included in the
September 12, 1996 submittal. Pennsylvania also included sample
calculations and a copy of the methodology it followed to determine
stationary source emissions (identified as Attachment 1 of its
addendum) and revised charts and tables for insertion into the
September 12, 1996 submittal (identified as Attachment 2 of its
addendum). Pennsylvania adjusted the amount of shutdown credit claimed
in the 15% plan and is now claiming 2.0 tons per day (TPD) rather than
the 3.4 TPD claimed in the September 12, 1996 submittal. The revised
charts and tables pertain to these corrections. These revisions occur
in Figure 1.2, Table 5.3, Section 6.1.1, Table 6.3 and Section 6.2.3 of
the Commonwealth's addendum to its 15% plan..
EPA's evaluation of the April 10, 1997 addendum submitted by
Pennsylvania is detailed in the technical support document (TSD) that
is part of the docket to this rulemaking. Briefly, EPA has determined
that Pennsylvania has resolved the inconsistencies with the 1990 VOC
emissions inventory, with the exception of those certain source
emissions at United States Steel--Fairless (USX--Fairless) located in
Bucks County. Consequently, EPA is approving the 1990 VOC emission
inventory submitted on September 12, 1996 for the Philadelphia
nonattainment area, with the exception of certain sources located at
USX--Fairless. These sources are identified as: 1) no. 3 blast furnace
(source no. 243), 2) no.1 open hearth furnace (source no. 251), 3) no.1
soaking pits (20) (source no. 300), 4) no.2 soaking pits (1-8) (source
no. 330), 5) no.2 soaking pits (9-16) (source no. 338), and 6) 80 in.
Hot strip mill (source no. 351). The 1990 VOC emissions for the above-
named sources at USX--Fairless were approved by EPA in a previous
rulemaking notice (April 9, 1996, 61 FR 15709). That version of the
1990 VOC emissions for the above-named sources at USX--Fairless remains
SIP approved.
Pennsylvania has satisfactorily documented the emission reduction
credits due to shutdowns and over control with the exception of those
credits claimed for following four sources: Congoleum (NEDS ID 0049),
Sun R&M (NEDS ID 0025), Rohm & Haas (NEDS ID 0009), and BP Oil (NEDS ID
0030). EPA has recalculated the available emission reduction credit
from shutdown and over controlled sources based on the April 10, 1997
documentation and is approving an emission credit of 1.82 TPD for the
Philadelphia 15% plan. This is less than the 3.4 TPD figure in the
September 12, 1996 Pennsylvania submittal and the 2.0 TPD figure in the
April 10, 1997 addendum. The lesser amount of these credits does not
jeopardize the ability of Pennsylvania to meet the 15% target level of
emissions required by the Act. As a result of the additional
documentation provided by Pennsylvania on April 10, 1997, Pennsylvania
has satisfied conditions 1 through 3 listed in the notice of proposed
rulemaking. The remaining conditions (4 and 5) pertain to the
inspection and maintenance (I/M) rule. Pennsylvania expects to satisfy
those conditions within the required time frames.
II. Public Comments and Response
As a result of the March 11, 1997 proposed rulemaking notice, EPA
received comments from the Clean Air Council (CAC). The comments and
EPA's responses follow below.
Comment 1: CAC agrees with EPA's assessment that the Philadelphia
15% plan contains various defects and cannot be determined to achieve
the 15% reduction required by the Act. CAC, however, states that these
defects preclude approval of the 15% plan.
Response 1: As described above, Pennsylvania's April 10, 1997
addendum to its September 12, 1996 submittal resolves the emission
inventory and creditability issues discussed in EPA's proposed
rulemaking notice. As a result, EPA has determined that Pennsylvania
has satisfied conditions 1 through 3 listed in the March 11, 1997
proposed rulemaking notice (62 FR 11131). The remaining conditions
pertain to I/M and allow Pennsylvania additional time in accordance
with the National Highway Systems Designation Act. Consequently, the
defects identified in the March 1997 proposed rulemaking notice have
been remedied.
Comment 2: CAC commented that the Philadelphia plan, which takes
credit for federal control measures such as architectural and
industrial maintenance coating, consumer/commercial products and
autobody refinishing, should not be approved because those federal
control measures have not yet been promulgated. CAC states that
allowing such credit violates section 182(b)(1)(C) of the Act. CAC
further commented that EPA cannot lawfully base SIP decisions on as-yet
unpromulgated rules because it does not know what these final rules
will say. CAC contends that allowing credit on as-yet unpromulgated
rules, even with the caveat that the states must revisit the rule later
if the federal rules turn out differently than predicted, amounts to an
unlawful extension of a SIP
[[Page 31345]]
submission deadline. CAC stated that EPA must base its decision on the
record before it at the time of its decision; not on some record that
the agency hopes will exist in the future.
Response 2: Section 182(b)(1)(A) of the Act requires states to
submit their 15% SIP revisions by November, 1993. Section 182(b)(1)(C)
of the Act provides the following general rule for creditability of
emissions reductions towards the 15% requirement:
Emissions reductions are creditable toward the 15 percent
required, to the extent they have actually occurred, as of
[November, 1996], from the implementation of measures required under
the applicable implementation plan, rules promulgated by the
Administrator, or a permit under Title V.
This provision further indicates that certain emissions reductions
are not creditable, including reductions from certain control measures
required prior to the 1990 Amendments.
This creditability provision is ambiguous. Read literally, it
provides that although the 15% SIPs are required to be submitted by
November 1993, emissions reductions are creditable as part of those
SIPs only if ``they have actually occurred, as of [November 1996].''
This literal reading renders the provision internally inconsistent.
Accordingly, EPA believes that the provision should be interpreted to
provide, in effect, that emissions reductions are creditable ``to the
extent they will have actually occurred, as of [November, 1996], from
the implementation of [the specified measures]'' (the term ``will'' is
added). This interpretation renders the provision internally
consistent.
Section 182(b)(1)(C) of the Act explicitly includes as creditable
reductions those resulting from ``rules promulgated by the
Administrator''. This provision does not state the date by which those
measures must be promulgated, i.e., does not indicate whether the
measures must be promulgated by the time the 15% SIPs were due
(November, 1993), or whether the measures may be promulgated after this
due date.
Because the statute is silent on this point, EPA has discretion to
develop a reasonable interpretation, under Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA believes it is
reasonable to interpret section 182(b)(1)(C) of the Act to credit
reductions from federal measures as long as those reductions are
expected to occur by November, 1996, even if the federal measures are
not promulgated by the November 1993 due date for the 15% SIPs.
EPA's interpretation is consistent with the congressionally
mandated schedule for promulgating regulations for consumer and
commercial products, under section 182(e) of the Act. This provision
requires EPA to promulgate regulations controlling emissions from
consumer and commercial products that generate emissions in
nonattainment areas. Under the schedule, by November, 1993-- the same
date that the states were required to submit the 15% SIPs--EPA was to
issue a report and establish a rulemaking schedule for consumer and
commercial products. Further, EPA was to promulgate regulations for the
first set of consumer and commercial products by November 1995. It is
reasonable to conclude that Congress anticipated that reductions from
these measures would be creditable as part of the 15% SIPs, as long as
those reductions were to occur by November 1996.
Crediting reductions from federal measures promulgated after the
due date for the 15% SIPs is also sensible from an administrative
standpoint. Crediting the reductions allows the states to accurately
plan to meet the 15% reduction target from the appropriate level of
state and federal measures. Not crediting such reductions would mean
that the states would have to implement additional control requirements
to reach the 15% mark; and that SIPs would result in more than a 15%
level of reductions once the federal measures in question were
promulgated and implemented. At that point in time, the state may seek
to eliminate those additional SIP measures on grounds that they would
no longer be necessary to reach the 15% level. Such constant revisions
to the SIP to demonstrate 15% is a paper exercise that exhausts both
the states' and EPA's time and resources.
The fact that EPA cannot determine precisely the amount of credit
available for federal measures not yet promulgated does not preclude
granting the credit. The credit can be granted as long as EPA is able
to develop reasonable estimates of the amount of VOC reductions from
the measures EPA expects to promulgate. EPA believes that it is able to
develop reasonable estimates, particularly because it has already
proposed and taken comment on the measures at issue, and expects to
promulgate final rules by the spring of 1998. Many other parts of the
SIP, including state measures, typically include estimates and
assumptions concerning VOC amounts, rather than actual measurements.
For example, EPA's document to estimate emissions, ``Compilation of Air
Pollutant Emission Factors,'' January 1995, AP-42, provides emission
factors used to estimate emissions from various sources and source
processes. AP-42 emission factors have been used, and continue to be
used, by states and EPA to determine base year emission inventory
figures for sources and to estimate emissions from sources where such
information is needed. Estimates in the expected amount of VOC
reductions are commonly made in air quality plans, even for those
control measures that are already promulgated. Moreover, the fact that
EPA is occasionally delayed in its rulemaking is not an argument
against granting credits from these measures. The measures are
statutorily required, and states and citizens could bring suit to
enforce the requirements that EPA promulgate them. If the amount of
credit that EPA allows the state to claim turns out to be greater than
the amount EPA determines to be appropriate when EPA promulgates the
federal measures, EPA intends to take appropriate action to require
correction of any shortfall in necessary emissions reductions that may
occur.
The above analysis focuses on the statutory provisions that include
specific dates for 15% SIP submittal (November 1993) and implementation
(November 1996). These dates have expired, and EPA has developed new
dates for submittal and implementation. EPA does not believe that the
expiration of the statutory dates, and the development of new ones, has
implications for the issue of whether reductions from federal measures
promulgated after the date of the 15% SIP approval may be counted
toward those 15% SIPs. Although the statutory dates have passed, EPA
believes that the analysis described above continues to be valid.
Comment 3: CAC commented that EPA cannot ignore the November 15,
1996 statutory deadline simply because the deadline is now behind us.
It contends that EPA's and states' unlawful delays have prevented
compliance with the November 15, 1996 deadline and that EPA cannot now
jettison the statutory deadlines by substituting the ``as soon as
practicable'' test; rather, CAC states EPA must require compliance with
an ``as soon as possible'' test and fix a compliance deadline. The
commenter cited various court decisions in an effort to support its
formulation of the ``as soon as possible'' test.
Response 3: The case law cited by the commenter considers various
circumstances, such as failure by EPA to promulgate rules on the
statutorily mandated deadline or to take action on
[[Page 31346]]
state failures to make SIP submissions on the statutorily mandated
deadline. See, e.g., Natural Resources Defense Council v. EPA, 22 F.3d
1125 (D.C. Cir. 1994), Natural Resources Defense Council v. Train, 510
F.2d 692 (D.C. Cir. 1975). These cases articulate various formulations
of the standards by which the courts establish new deadlines. EPA
believes that its formulation of the standard by which States must
achieve the 15% reductions--``as soon as practicable''--is generally
consistent with the case law.
Further, EPA believes that Pennsylvania has demonstrated that it
has met this standard. The notice of proposed rulemaking, the TSD, and
other documents in the record establish that implementation of various
15% measures including the I/M program is as soon as practicable. The
main reasons for the delays in the development and implementation of
Pennsylvania's 15% SIP relate to its enhanced I/M plan. Most recently,
these enhanced I/M delays were closely associated with the enactment,
in November, 1995, of the National Highway Systems Designation Act
(NHSDA). The NHSDA afforded states the opportunity to revise their I/M
plans in a manner that would be treated as meeting certain EPA
requirements on an interim basis. The NHSDA provided additional time
for the Commonwealth and EPA to develop and process the revised I/M
plans. The Commonwealth acted expeditiously in developing and
implementing a revised enhanced I/M program. However, the delays in
developing and implementing the NHSDA I/M program rendered impossible
achieving the 15% reduction target by the end of 1996.
Moreover, EPA has reviewed other VOC SIP measures that are at least
theoretically available to Pennsylvania, and has concluded that
implementation of any such measures that might be appropriate would not
accelerate the date of achieving the 15% reductions.
EPA agrees with the commenter that in this particular case, a fixed
deadline is appropriate. Accordingly, EPA will establish November 15,
1999, as the date by which the 15% measures must be implemented to the
extent necessary to generate the required amount of reductions.
Comment 4: Any further delays in implementing VOC control measures,
including most prominently, enhanced I/M, must not be tolerated. For I/
M, EPA's deadline must require implementation in the shortest time in
which it is logistically possible to get the testing systems up and
running. The National Highway Designation Act does not mention the 15%
plan or authorize any delay of the achievement of the 15% emission
reduction. Furthermore, missing the November 15, 1996 deadline
unlawfully rewards states for failure to meet the deadline by giving
them increased credits under national programs such as the Tier I
Federal Motor Vehicle Control Program. CAC argues that such an approach
unlawfully delays the achievement of clean air by allowing the states
to reduce their own emission control efforts by the amount of the post-
November 1996 fleet turnover benefits. Consequently, EPA must deny the
post-November 1996 Tier I credit and require states to adopt emission
reductions to compensate for post-1996 VMT growth.
CAC further argues that EPA cannot delay the section 182(b)(1)
requirement for states to account for growth in the 15% plans to the
post-1996 rate-of-progress plans. Particularly because the post-1996
plans involve potential NOX substitution that is not
permitted in the VOC-only 15% plans.
Response 4: EPA disagrees with the comment. The National Highway
Systems Designation Act was enacted by Congress in November of 1995.
Section 348 of this statute provided states renewed opportunity to
satisfy the Act's requirements related to the network design for I/M
programs. States were not only granted the flexibility to enact test-
and-repair programs, but were provided additional time to develop those
programs and to submit proposed regulations for interim SIP approval.
Pennsylvania moved rapidly to propose I/M regulations on March 16,
1996, and to submit to EPA a SIP containing those regulations, under
the authority granted by the NHSDA.
Under the terms of the 15% requirement in section 182(b)(1)(A)(I)
of the Act, the SIP must--
provide for [VOC] emission reductions, within 6 years after the date
of enactment of the Clean Air Act Amendments of 1990, of at least 15
percent from baseline emissions, accounting for any growth in
emissions after [1990].
EPA interprets this provision to require that a specific amount of
VOC reductions occur, and has issued guidance for computing this
amount. The Commonwealth, complying with this guidance, has determined
the amount of the required VOC reductions needed to meet the 15% goal.
It is no longer possible for the Commonwealth to implement measures to
achieve this level of reduction as the November 15, 1996 date provided
under the 15% provisions has passed. Accordingly, EPA believes that the
Commonwealth will comply with the statutory mandate as long as
Pennsylvania achieves the requisite level of reductions on an as-soon-
as-practicable basis after 1996. In computing the reductions, EPA
believes it acceptable for states to count reductions from federal
measures, such as vehicle turnover, that occur after November 15, 1996,
as long as they are measures that would be creditable had they occurred
prior to that date. These measures result in VOC emission reductions as
directed by Congress in the Act; therefore, these measures should count
towards the achievement --however delayed--of the 15% VOC reduction
goal.
EPA does not believe states are obligated, as part of the 15% SIP,
to implement further VOC reductions to offset increases in VOC
emissions due to post-1996 growth. As noted above, the 15% requirement
mandates a specific level of reductions. By counting the reductions
that occur through measures implemented pre- and post-1996, SIPs may
achieve this level of reductions. Although section 182(b)(1)(A)(I),
quoted above, mandates that the SIPs account for growth after 1990, the
provision does not, by its terms, establish a mechanism for how to
account for growth, or indicate whether, under the present
circumstances, post-1996 growth must be accounted for. EPA believes
that its current requirements for the 15% SIPs meet section
182(b)(1)(A)(I). In addition, although post-1996 VOC growth is not
offset under the 15% SIPs, such growth must be offset in the post-1996
plans required for serious and higher classified areas to achieve 9% in
VOC reductions every three years after 1996 (until the attainment
date). The fact that these post-1996 SIPs may substitute NOX
reductions for VOC reductions in the 1996-1999 period does not
undermine the integrity of the 15% SIPs. Allowing NOX
substitution is fully consistent with the public health-based goals of
the Act.
Under EPA's approach, post-1996 growth will be accounted for in the
plans that Congress intended to take account of such growth--the post-
1996 ``rate of progress'' SIPs. To shift the burden of accounting for
such growth to the 15% plans, as the commenters would have EPA do,
would impose burdens on states above and beyond what Congress
contemplated would be imposed by the 15% requirement (which was
intended to have been achieved by November 1996). In the current
situation, where it is clearly impossible to achieve the target level
of VOC reductions (a 15% reduction taking into account growth through
November 1996) by November 1996, EPA believes that its approach is a
reasonable and
[[Page 31347]]
appropriate one. It will still mean that post-1996 growth is taken into
account in the SIP revisions Congress intended to take into account
such growth and it means that the target level of VOC reductions will
be achieved as soon as practicable. Once the post-1996 rate of progress
plans are approved and implemented, areas will have achieved the same
level of progress that they were required to have achieved through the
combination of 15% and rate of progress requirements as was originally
intended by Congress.
Comment 5: EPA cannot approve SIPs if the state has failed to
demonstrate approvability. In this regard, EPA has not been able to
verify Pennsylvania's mobile source emission reduction credits but has
stated that it has no reason to believe that Pennsylvania's methodology
is flawed and is therefore approving the Philadelphia 15% plan. CAC
stated that an absence of information requires disapproval.
Response 5: EPA believes Pennsylvania has demonstrated that it has
appropriately modeled its mobile source program benefits, through
proper use of EPA's MOBILE emissions factor estimation model, combined
with state vehicle miles of travel estimates. Due to the sheer
magnitude the modeling task (i.e. the large number of modeling
scenarios needed to compile inventories and evaluate emissions
benefits) Pennsylvania faced when developing mobile source inventories
and modeling the benefits of various mobile source programs, the
Commonwealth utilized a post-processor model to run the numerous MOBILE
modeling scenarios needed to characterize these emissions. It is not
practical to submit the hundreds or even thousands of modeling input
and output runs needed to evaluate the mobile source-related portions
of the 15% rate-of-progress SIP.
Pennsylvania instead submitted to EPA a list of the variables and
assumptions utilized in its MOBILE modeling analysis, along with sample
model input and output scenarios. Additionally, the Commonwealth
submitted a demonstration of how the post-processor utilized MOBILE to
generate composite index factors for use in determining mobile source
emission factors for the Philadelphia area. Finally, the Commonwealth
tallied mobile source emissions in summary tables for various programs,
by county, etc. to present the results of its analysis.
While the SIP does not contain sufficient data to reconstruct the
analysis and, therefore, to independently verify the Commonwealth's
claims stemming from the mobile source emissions analysis, EPA believes
the Commonwealth's modeling methodology is sound. However, EPA has
deferred the specific results of that modeling, in part, to the
Commonwealth.
Comment 6: EPA has pointed out information gaps in the Pennsylvania
submittal, including the finding that Pennsylvania did not follow
standard guidance and methodologies for projecting growth in the 1996
inventory. EPA has also stated that there is a potential double
counting issue related to emission credits but that it is not
conditioning the approval of the Philadelphia 15% plan on these issues.
CAC argued that these deficiencies speak to the heart of the
calculation of the target emission reduction level and whether the
claimed emission reductions are sufficient to meet that level.
Therefore, although CAC believes that the Philadelphia 15% plan should
be disapproved, at a minimum, it argues that the resolution of these
deficiencies should be made additional conditions that the Commonwealth
must satisfy for the 15% plan approval.
Response 6: EPA has acknowledged the potential double counting of
emission reductions in the Philadelphia 15% plan as part of its honest
effort to credibly account for activities associated with the operation
of the Pennsylvania emissions bank. The use of Bureau of Economic
Analysis (BEA) growth factors, recommended by EPA guidance, did not
contemplate the net effect on emissions accounting where there is an
operational emissions bank. Since most states in the nation do not have
approved emissions bank, this was not an issue of widespread concern or
discussion. Pennsylvania's use of the BEA growth factors and the
operation of an emissions bank are both permitted by EPA. The effect of
the combined use of the BEA growth factors and the operation of the
emissions bank is, however, uncertain. EPA shall address this issue in
subsequent air quality plans for Pennsylvania.
III. Creditable Measures
The control measures described below are creditable toward the rate
of progress requirements of the Act. Pennsylvania takes emission credit
toward the 15% requirement through implementation of the following
required programs: (1) Federal reformulated gasoline, (2) reformulated
gasoline--nonroad, (3) I/M FMVCP/Tier I, and (4) Stage II vapor
recovery. Pennsylvania also takes emission credit toward the 15%
requirement through the implementation of the following programs: (1)
Federal architectural and industrial maintenance coating regulation
(national rule), (2) treatment, storage and disposal facility (TSDF)
controls (hazardous waste rule with air emission reductions), (3)
autobody refinishing national rule, (4) consumer and commercial
products national rule, and (5) facility shutdowns/over control.
Further details regarding EPA's review of the Commonwealth's
control measures are contained in the TSD for this rulemaking action.
Summary of Creditable Emission Reductions for the Philadelphia Ozone
Nonattainment Area (tons/day)
------------------------------------------------------------------------
Required reduction for the Philadelphia area 123.64
------------------------------------------------------------------------
Creditable Reductions:
Shutdown credits............................................ 1.83
AIM Coatings Rules.......................................... 7.28
Consumer/Commercial Products................................ 6.58
TSDF Controls............................................... 9.35
Autobody refinishing........................................ 6.30
Stage II vapor recovery..................................... 17.02
Federal Reformulated gasoline............................... 26.48
Reformulated gasoline--nonroad.............................. 0.59
FMVCP (Tier I).............................................. 1.08
Inspection and Maintenance (I/M)............................ 49.74
---------
Total................................................... 126.24
------------------------------------------------------------------------
IV. Conditions for Approval
EPA has evaluated this submittal for consistency with the Act,
applicable EPA regulations, and EPA policy. In the March 11, 1997
proposed rulemaking notice, EPA listed five conditions, which
Pennsylvania is required to meet, within 12 months of the final
rulemaking notice, in order to obtain approval of the Philadelphia 15%
plan and 1990 VOC emission inventory. These conditions are:
(1) Reconcile the 1990 VOC emissions inventory with all the
appendices, tables and narratives throughout the 15% document, wherever
emissions are cited;
(2) After establishing consistent figures as described in 1) above,
provide sample calculations for point source 1990, 1990 adjusted, and
1996 projected emissions showing how each of these figures were
obtained. The level of documentation must be equivalent to that
required for approval of a 1990 emissions inventory as described in the
emission inventory documents at the beginning of this technical support
document;
(3) Provide additional documentation for the emissions for those
sources categories where credit is claimed (shutdowns, TSDFs);
(4) Provide a written commitment to remodel the I/M program as
implemented in the Philadelphia
[[Page 31348]]
nonattainment area in accordance with EPA guidance (December 23, 1996
memo entitled ``Modeling 15% VOC Reductions from I/M in 1999--
Supplemental Guidance); and
(5) Fulfill the conditions listed in the I/M SIP rulemaking notice
(proposed October 3, 1996, 61 FR 51638; final rule, January 28, 1997,
62 FR 4004) and summarized here as: (a) geographic coverage and program
start dates, (b) program evaluation, (c) test types, test procedures
and emission standards, (d) test equipment specifications, and (e)
motorist compliance enforcement.
By its April 10, 1997 addendum, Pennsylvania has met conditions 1,
2, and 3. Although the full amount of emission reduction credit in some
cases could not be substantiated with the Pennsylvania documentation,
EPA is satisfied that the documentation supports the position that the
amount of credits being approved now by EPA is adequately verified. The
emission reductions from the enhanced I/M program that is subject to
the National Highway Systems Designation Act with its extended
deadlines are required in order for the required 15% emission reduction
to be achieved in the Philadelphia nonattainment area. Under the
National Highway Systems Designation Act of 1995, Pennsylvania's
enhanced I/M program is receiving a conditional interim approval. As
such, EPA can, at best, propose conditional interim approval of the
Philadelphia 15% plan. In its April 10, 1997 letter, Pennsylvania
agreed to meet conditions 4 and 5 that pertain to I/M within the
required time frames.
As conditions 4 and 5 remain unfulfilled, EPA cannot grant full
approval of the Philadelphia 15% rate-of-progress plan under section
110(k)(3) and Part D of the Clean Air Act. Instead, EPA is granting
conditional interim approval of this SIP revision under section
110(k)(4) of the Act, because the Commonwealth must meet the specified
conditions and supplement its submittal to satisfy the requirements of
section 182(b)(1) of the Act regarding the 15 percent rate-of-progress
plan, and because the Commonwealth must supplement its submittal and
demonstrate it has achieved the required emission reductions. In
addition, EPA is approving the 1990 VOC base year emissions inventory
for the Philadelphia ozone nonattainment area, submitted with the 15%
plan on September 27, 1996, with the exception of the revisions to the
emissions for USX--Fairless (Bucks County) that were previously
approved by EPA (April 9, 1996, 61 FR 15709). EPA is not taking any
rulemaking action regarding the contingency plan submitted by
Pennsylvania in response to the requirement of section 172(c)(9) of the
Act. The contingency plan will be the subject of a separate rulemaking
notice. EPA is also not taking any rulemaking action at this time with
regard to the 1990 NOX emission inventory submitted with the
September 1996 15% plan. The 1990 NOX emission inventory
will also be the subject of a separate rulemaking notice.
The Commonwealth submitted the required written commitment to EPA
on April 10, 1997. In addition, the Commonwealth submitted additional
documentation to fully satisfy conditions 1 through 3 and the necessary
written commitment to complete condition 4 in the time frame required.
The remaining unsatisfied conditions or portions of conditions must
be satisfied by June 9, 1998.
Final Action
EPA is granting conditional interim approval of the Philadelphia
15% plan and approval of the 1990 VOC emission inventory as a revision
to the Pennsylvania SIP. By today's action, EPA is granting approval to
emission credits for the Philadelphia 15% plan on an interim basis,
pending verification of the enhanced I/M Program's performance,
pursuant to section 348 of the NHSDA. This interim approval of the 15%
plan will expire at the end of the 18 month period, and will be
replaced by appropriate EPA action based on the evaluation EPA receives
concerning the program's performance. If the evaluation indicates a
shortfall in emission reductions compared to the remodeling that the
15% plan is conditioned on, the Commonwealth will need to find
additional emission credits. Failure of the Commonwealth to make up for
an emission shortfall from the enhanced I/M program may subject the
Commonwealth to sanctions and imposition of a Federal Implementation
Plan. EPA has already approved the Pennsylvania enhanced I/M program on
a conditional interim basis (January 28, 1997, 62 FR 4004). This
approval of the Pennsylvania enhanced I/M program was taken under
section 110 of the Act and, although the credits provided by this
program may expire, the approval of the I/M regulations does not
expire. As explained above, the credits provided by the enhanced I/M
program on an interim basis for the 15% plan may be adjusted based on
EPA's evaluation of the enhanced I/M program's performance.
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.
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 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.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, EPA
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the Act, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
Conditional approvals of SIP submittals under section 110 and
subchapter I, part D of the Act do not create any new requirements but
simply approve requirements that the State is already imposing.
Therefore, because the federal SIP approval does not impose any new
requirements, EPA certifies that it does not have a significant impact
on any small entities affected. Moreover, due to the nature of the
federal-state relationship under the Act, preparation of a flexibility
analysis would constitute federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA
[[Page 31349]]
to base its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new federal requirement.
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 nor does it substitute a new
federal requirement.
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 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 pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Under section 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by
section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 8, 1997. 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, pertaining to the final conditional
interim approval of the 15% plan for the Pennsylvania portion of the
Philadelphia ozone nonattainment area and the approval of the 1990 VOC
emission inventory (with the exception of the revisions to the
inventory of emissions for selected sources at USX--Fairless) for the
same area, 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,
Ozone, Reporting and record keeping requirements.
Dated: May 30, 1997.
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 52.2026 is amended by adding paragraph (c) to read as
follows:
Sec. 52.2026 Conditional Approval.
* * * * *
(c) The Commonwealth of Pennsylvania's September 12, 1996 submittal
for the 15 Percent Rate of Progress Plan (15% plan) for the
Pennsylvania portion of the Philadelphia ozone nonattainment area, is
conditionally approved based on certain contingencies, for an interim
period. The condition for approvability is as follows:
Pennsylvania must meet the conditions listed in the January 28,
1997 conditional interim Inspection and Maintenance Plan (I/M)
rulemaking notice, remodel the I/M reductions using the EPA guidance
memo: ``Modeling 15 Percent VOC Reductions from I/M in 1999--
Supplemental Guidance'', memorandum from Gay MacGregor and Sally
Shaver, dated December 23, 1996.
3. Section 52.2036 is amended by adding paragraph (i) to read as
follows:
Sec. 52.2036 1990 Base year Emission Inventory
* * * * *
(i) The 1990 VOC emission inventory for the Philadelphia ozone
nonattainment area, submitted on September 12, 1996 by Pennsylvania
Department of Environmental Protection, is approved, with the exception
of the revisions to the emission inventory for those sources at United
States Steel--Fairless that were approved in Sec. 52.2036 (b) on April
9, 1996.
[FR Doc. 97-14987 Filed 6-6-97; 8:45 am]
BILLING CODE 6560-50-P
