[Federal Register Volume 60, Number 138 (Wednesday, July 19, 1995)]
[Rules and Regulations]
[Pages 37015-37018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17669]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA63-1-7124; FRL-5259-6]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Pennsylvania: Determination of Attainment of Ozone
Standard by the Pittsburgh-Beaver Valley and Reading Ozone
Nonattainment Areas and Determination Regarding Applicability of
Certain Reasonable Further Progress and Attainment Demonstration
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA has determined that the Pittsburgh-Beaver Valley and
Reading ozone nonattainment areas have attained the National Ambient
Air Quality standard (NAAQS) for ozone. This determination is based
upon three years of ambient air monitoring data for the years 1992-94
that demonstrate that the ozone NAAQS has been attained in these areas.
On the basis of this determination, EPA is also determining that
certain reasonable further progress (RFP) and attainment demonstration
requirements, along with certain other related requirements, of Part D
of Title I of the Clean Air Act (CAA) are not applicable to these areas
as long as these areas continue to attain the ozone NAAQS.
EFFECTIVE DATE: July 19, 1995.
[[Page 37016]]
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.
FOR FURTHER INFORMATION CONTACT: Kathleen Henry, (215) 597-0545.
SUPPLEMENTARY INFORMATION: EPA published a Notice of Direct Final
Rulemaking (DFR) on May 26, 1995 (60 FR 27893). In that rulemaking, EPA
determined that the Pittsburgh-Beaver Valley and Reading ozone
nonattainment areas have attained the ozone standard and that the
requirements of section 182(b)(1) concerning the submission of a 15%
RFP plan and ozone attainment demonstration and the requirements of
section 172(c)(9) concerning contingency measures are not applicable to
these areas so long as the areas do not violate the ozone standard. In
addition, EPA determined that the sanctions clocks started on January
18, 1994, for these areas for failure to submit the RFP requirements
would be stopped since the deficiency on which they are based no longer
exists.
At the same time that EPA published the direct final rule, a
separate notice of proposed rulemaking (NPR) was published in the
Federal Register (60 FR 27945) in the event that adverse or critical
comments were filed which would require EPA to withdraw the direct
final rule. EPA received adverse comments within 30 days of publication
of the proposed rule and withdrew the direct final rule on June 13,
1995 (60 FR 31081).
The specific rationale and air quality analysis EPA used to
determine that the Pittsburgh-Beaver Valley and Reading ozone
nonattainment areas have attained the NAAQS for ozone and are not
required to submit SIP revisions for RFP, attainment demonstration and
related requirements are explained in the DFR and will not be restated
here.
Response to Public Comment
Two letters were received supporting EPA's proposed action, and one
adverse comment letter was received on the DFR. Following are the
relevant comments that were submitted followed by EPA's response.
Comment #1 The Clean Air Council (CAC) commented that EPA's action
disregards the requirements of section 107(d)(3)(E) of the Clean Air
Act (CAA), which govern redesignations to attainment. According to the
commenter, the EPA's action indicates that the Agency intends to allow
nonattainment areas to be redesignated to attainment, regardless of air
quality or legal requirements. The commenter argued that EPA's action
essentially eliminates the requirement of section 107(d)(3)(E)(v),
which is that, for an area to be redesignated to attainment, the State
must have met all requirements applicable to the area under section 110
and part D of Title I of the CAA.
Response #1 The action proposed by EPA and finalized with this
notice is not a redesignation and does not eliminate the requirements
of section 107(d)(3)(E), which EPA believes must be met in order for
areas, including Pittsburgh and Reading, to be redesignated to
attainment. In sum, the action being taken with this notice does not
relax the requirements applicable to the evaluation of the
redesignation requests submitted for Pittsburgh and Reading on November
13, 1993.
The action being taken by EPA is a determination that the relevant
areas have attained the ozone NAAQS and, on the basis of that
determination, that certain reasonable further progress and attainment
demonstration requirements, along with certain other related
requirements, of part D of Title I of the CAA do not apply to the areas
as long as the areas continue to attain the NAAQS. In order to be
redesignated, EPA would need to approve requests for redesignation for
these areas, which were submitted on November 13, 1993, by the
Commonwealth of Pennsylvania. In order to be approved, a redesignation
request must satisfy the criteria of section 107(d)(3)(E), including
the requirement of section 107(d)(3)(E)(v) that the State have met all
requirements applicable to the area under section 110 and part D.
EPA notes that it has previously interpreted section 107(d)(3)(E)
to mean that the requirements applicable to a redesignation request are
those that became applicable prior to or at the time of the submission
of the request. See Memorandum dated September 4, 1992, from John
Calcagni, Director, Air Quality Management Division to Regional Air
Directors, entitled ``Procedures for Processing Requests to Redesignate
Areas to Attainment''. (EPA has followed this interpretation in
numerous redesignations. See, e.g., 59 FR 35044 and 59 FR 54391
(Indiana), 59 FR 65719 (West Virginia), 59 FR 45978 (West Virginia)).
In the case of the redesignation requests submitted for Pittsburgh and
Reading on November 13, 1993, that means that EPA would not require a
15% RFP plan, attainment demonstration, or section 172(c)(9)
contingency measures to be submitted and approved in order to determine
that the applicable requirements have been met under section
107(d)(3)(E)(v) because SIP revisions to comply with those requirements
were not due until November 15, 1993 (see sections 172(b) and
182(b)(1)(A)). EPA also notes that the determination being made in this
notice does not eliminate the applicability of other requirements to
the Pittsburgh and Reading areas, such as the RACT requirements of
section 182(b)(2) or the requirements of section 184(b) that apply to
areas within the Northeast Ozone Transport Region.
Furthermore, for another reason, even without the action being
taken with this notice, the submission and approval of section
172(c)(9) contingency measures would not have been required in order
for the November 13, 1993 redesignation requests to be approved in
accordance with pre-existing EPA policy since EPA has also long
interpreted section 172(c)(9) as not being applicable to areas
attaining the NAAQS.
As stated in the DFR, the General Preamble for the Interpretation
of Title I of the Clean Air Act Amendments of 1990 (57 FR 13498) states
that, in the context of a discussion of the requirements applicable to
redesignation requests, that the ``requirements for RFP will not apply
in evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the State will make RFP towards
attainment will, therefore, have no meaning at that point'' (57 FR
13564). EPA restated this interpretation in a memorandum dated
September 4, 1992, from John Calcagni, Director, Air Quality Management
Division, to Regional Air Directors, entitled ``Procedures for
Processing Requests to Redesignate Areas to Attainment'' which states
that RFP requirements ``will not apply for redesignations because they
only have meaning for areas not attaining the standard''.
Comment #2 The CAC stated that EPA's May 26, 1995 notice illegally
waived the 15% plan and RFP requirements. According to the commenter,
section 182(b) required moderate areas such as Reading and Pittsburgh
to develop and submit 15% plans and the 15% plan requirement is not a
de minimis requirement that can be waived. The commenter also stated
that the most compelling reason for a 15% plan in Reading and
Pittsburgh is the need to protect public health as both areas have
experienced high levels of air pollution.
Response #2 As explained in the May 26, 1995 notice and the May
10,
[[Page 37017]]
1995 memorandum from John S. Seitz, Director, Office of Air Quality
Planning and Standards, to the Regional Air Directors entitled
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard'', establishing the policy underlying that
notice, EPA believes that it is reasonable to interpret the language of
the pertinent statutory provisions so as not to require a submission of
the 15% RFP plan from an area that is attaining the standard for so
long as the area continues to attain the standard because the purpose
of an RFP plan, as stated explicitly in section 171(1) of the CAA, is
to ensure attainment by the applicable attainment date. Once an area
has attained the standard, the stated purpose of the RFP requirement
will have already been fulfilled. This interpretation is not based on
EPA's de minimis authority (see Alabama Power Co. v. Costle, 636 F.2d
323, 360-61 (D.C. Cir. 1979)), but on the language of the pertinent
statutory provisions. In sum, the commenter has not provided any
rationale to persuade EPA that its interpretation is not reasonable.
With respect to air quality levels, this action is premised on the
determination that both Pittsburgh and Reading have attained the ozone
NAAQS, which is set at a level to protect public health, allowing an
ample margin of safety. Both Pittsburgh and Reading attained the
standard prior to the submission of the redesignation requests in
November 1993 and continue to attain the standard as there have been no
monitored violations of the standard since then.
Comment #3 The CAC also commented that Reading and Pittsburgh have
no VOC control strategy and that to consider redesignating the areas
without reformulated gasoline and enhanced inspection and maintenance
is without basis in the law or common sense.
Response #3 As noted earlier, this action is not a redesignation.
Whether the redesignation requests for Pittsburgh and Reading satisfy
the requirements of section 107(d)(3)(E) is a matter for a separate
proceeding regarding those requests. Furthermore, EPA notes that VOC
controls have been adopted and are in place in both Reading and
Pittsburgh, e.g., VOC RACT control measures.
Comment #4 The CAC stated that EPA itself pointed out that its
action in determining that the Pittsburgh-Beaver Valley and Reading
areas have attained the NAAQS and not requiring the submittal of a 15%
RFP plan does not shield an area from future EPA action to require
emission reductions where there is evidence showing that the subject
area's emissions contribute to attainment/maintenance problems in other
nonattainment areas. The commenter noted that EPA had determined in the
January 24, 1995, ``Final Rule on Ozone Transport Commission; Low
Emission Vehicle Program for the Northeast Ozone Transport Region'' (60
FR 4712) (OTC LEV Program) that ozone and emissions from western
Pennsylvania contribute to the ozone problems in the Philadelphia
nonattainment area and stated that it is inequitable to require a 15%
RFP plan for Philadelphia but not for areas that contribute to
Philadelphia's air quality problem.
Response #4 The issue concerning the applicability of RFP,
attainment demonstration and related requirements must be considered
independently from the issue of EPA's authority to impose requirements
relative to intrastate transport of emissions. Today's rulemaking
action only determines that the Pittsburgh-Beaver Valley and Reading
areas have attained the NAAQS and states that the CAA does not require
the submittal of a 15% RFP plan and other related requirements so long
as the areas continue to attain the standard.
EPA has separate authority under sections 110(a)(2) (A) and (D) to
require that SIPs include adequate provisions prohibiting sources in
one area from contributing significantly to nonattainment or
interfering with maintenance in any other area. However, a general
finding of SIP inadequacy is not warranted at this time for two
reasons. First, Pennsylvania is part of the Ozone Transport Region
(OTR) and not requiring RFP and attainment demonstration SIP revisions
does not relieve the Pittsburgh-Beaver Valley and Reading nonattainment
areas from meeting the emission reduction requirements of section
184(b). This section requires States in the OTR to implement specific
control measures in all areas of the OTR regardless of attainment
status. These control measures are also the creditable emission
reductions commonly used by States to meet the 15% RFP plan
requirement. Consequently, these areas may in fact obtain the 15%
reduction in VOC emissions called for by the 15% RFP plan requirement.
Furthermore, EPA determined in the OTC LEV Program Rule that
emission reductions achieved by the OTC LEV program applied throughout
the OTR are necessary to bring certain nonattainment areas in the OTR
into attainment (including maintenance) of the ozone standard. In
addition to the emission reductions from the OTC LEV program, emission
reductions from other regional strategies, such as the OTC Memorandum
of Understanding to adopt stringent controls on NOx emissions from
stationary sources, which was signed by Pennsylvania, are anticipated.
As EPA concluded in the OTC LEV Program Rule, however, the States in
the OTR should be allowed the opportunity to address pollution
transport in the attainment demonstrations that will be forthcoming
from the nonattainment areas of the OTR before the Agency exercises its
SIP-call authority more broadly to address non-LEV deficiencies. See 60
FR 4717-18 (Jan. 24, 1995).
Comment #5 The South Western Pennsylvania Growth Alliance (SWPGA)
and Greater Pittsburgh Chamber of Commerce submitted comments
supporting EPA's rulemaking. In addition, they submitted comments
concerning issues relevant to the redesignation of the Pittsburgh-
Beaver Valley area.
Response #5 EPA acknowledges these comments. However, as stated in
the DFR, EPA is only determining that the Pittsburgh-Beaver Valley and
Reading areas have attained the NAAQS and that the submittal of a 15%
RFP plan and ozone attainment demonstration and the requirements of
section 172(c)(9) concerning contingency measures is not required by
the CAA so long as the areas do not violate the ozone standard.
Final Action
EPA is making a final determination that the Pittsburgh-Beaver
Valley and Reading ozone nonattainment areas have attained the ozone
standard and continue to attain the standard at this time. As a
consequence of this determination, 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 are not applicable to the area so long
as the area does not violate the ozone standard. Since these areas will
not be required to submit 15% RFP plans or attainment demonstrations,
these areas will not be in the control strategy period for conformity
purposes for so long as the areas do not violate the standard. However,
the Pittsburgh-Beaver Valley and Reading areas, which are already
demonstrating conformity to a submitted maintenance plan pursuant to 40
CFR part 51, Sec. 51.448(i), may continue to do so, or the Commonwealth
may elect to withdraw
[[Page 37018]]
the applicability of the submitted maintenance plan budget for
conformity purposes until the maintenance plan is approved. The
applicability may be withdrawn through the submission of a letter from
the Governor or his or her designee. If the applicability of the
submitted maintenance plan budget is withdrawn for transportation
conformity purposes, the build/no-build and less-than-1990 tests will
apply until the maintenance plan is approved.
EPA emphasizes that these determinations are contingent upon the
continued monitoring and continued attainment and maintenance of the
ozone NAAQS in the affected area. When and if a violation of the ozone
NAAQS is monitored in the Pittsburgh-Beaver Valley or Reading
nonattainment areas (consistent with the requirements contained in 40
CFR part 58 and recorded in AIRS), EPA will provide notice to the
public in the Federal Register. Such a violation would mean that the
area would thereafter have to address the requirements of section
182(b)(1) and section 172(c)(9) since the basis for the determination
that they do not apply would no longer exist.
As a consequence of the determination that these areas have
attained the NAAQS and that the RFP and attainment demonstration
requirements of section 182(b)(1) do not presently apply, the sanctions
clocks started by EPA on January 18, 1994, for failure to submit these
requirements are hereby stopped since the deficiency for which the
clock was started no longer exists.
EPA finds that there is good cause for this action to become
effective immediately upon publication because a delayed effective date
is unnecessary due to the nature of this action, which is a
determination that certain Clean Air Act requirements do not apply for
so long as the areas continue to attain the standard. The immediate
effective date for this action is authorized under both 5 U.S.C.
553(d)(1), which provides that rulemaking actions may become effective
less than 30 days after publication if the rule ``grants or recognizes
an exemption or relieves a restriction'' and section 553(d)(3), which
allows an effective date less than 30 days after publication ``as
otherwise provided by the agency for good cause found and published
with the rule.''
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. Today's determination does not create any new requirements, but
suspends the indicated requirements. Therefore, because this notice
does not impose any new requirements, I certify that it does not have a
significant impact on any small entities affected.
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 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 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 today's final 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 imposes no new Federal
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this final rule determining that the Pittsburgh-
Beaver Valley and Reading ozone nonattainment areas have attained the
NAAQS for ozone and that certain RFP and attainment demonstration
requirements of sections 182(b)(1) and 172(c)(9) no longer apply must
be filed in the United States Court of Appeals for the appropriate
circuit by September 18, 1995. 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, Nitrogen dioxide, Ozone.
Dated: June 10, 1995.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
40 CFR part 52, subpart NN of chapter I, title 40 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 adding paragraph (b) to read as
follows:
Sec. 52.2037 Control Strategy: Carbon monoxide and ozone
(hydrocarbons).
* * * * *
(b)(1) Determination--EPA has determined that, as of July 19, 1995,
the Pittsburgh-Beaver Valley ozone nonattainment area has attained the
ozone standard and that the reasonable further progress and attainment
demonstration requirements of section 182(b)(1) and related
requirements of section 172(c)(9) of the Clean Air Act do not apply to
this area for so long as the area does not monitor any violations of
the ozone standard. If a violation of the ozone NAAQS is monitored in
the Pittsburgh-Beaver Valley ozone nonattainment area, these
determinations shall no longer apply.
(2) Determination--EPA has determined that, as of July 19, 1995,
the Reading ozone nonattainment area has attained the ozone standard
and that the reasonable further progress and attainment demonstration
requirements of section 182(b)(1) and related requirements of section
172(c)(9) of the Clean Air Act do not apply to this area for so long as
the area does not monitor any violations of the ozone standard. If a
violation of the ozone NAAQS is monitored in the Reading ozone
nonattainment area, these determinations shall no longer apply.
[FR Doc. 95-17669 Filed 7-18-95; 8:45 am]
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