[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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