[Federal Register Volume 62, Number 88 (Wednesday, May 7, 1997)]
[Rules and Regulations]
[Pages 24826-24835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11910]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[PA036-4060; FRL-5819-8]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Redesignation, Maintenance Plan, and Emissions
Inventories for Reading; Ozone Redesignations Policy Change
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a redesignation request for the Reading,
Pennsylvania ozone nonattainment area, and State Implementation Plan
(SIP) revisions submitted by the Commonwealth of Pennsylvania. The
revisions consist of a maintenance plan and 1990 base year inventories
for the Reading area (Berks County, Pennsylvania). In addition, for the
purposes of redesignation, EPA is proposing to approve Pennsylvania's
legislative authority to adopt and implement a vehicle inspection and
maintenance program. These actions are being taken under sections 107
and 110 of the Clean Air Act. Furthermore, EPA is changing its policy
on redesignation requirements for ozone nonattainment areas in the
Ozone Transport Region (OTR). The policy change makes redesignation
requirements for areas in the OTR consistent with requirements for
areas outside the OTR by interpreting meeting the requirements under
section 184 of the Clean Air Act as not being a prerequisite for the
purpose of redesignation. The policy does not affect obligations
required under other sections of the Act.
EFFECTIVE DATE: This final rule is effective on June 6, 1997.
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; the Air and Radiation Docket and Information Center, U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460; 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 address listed above, or via e-mail at
[email protected]. While information may be requested via e-
mail, comments must be submitted in writing to the above Region III
address.
SUPPLEMENTARY INFORMATION: On October 10, 1996 (61 FR 53174), EPA
published a notice of proposed rulemaking (NPR) for the Commonwealth of
Pennsylvania. The NPR proposed approval of the redesignation request,
maintenance plan, and 1990 volatile organic compound (VOC), oxides of
nitrogen (NOX), and carbon monoxide (CO) base year
inventories for the Reading area, contingent upon Pennsylvania's
correction of all deficiencies contained in the maintenance plan and
[[Page 24827]]
inventories. In that same Federal Register document, EPA also proposed,
in the alternative, to disapprove the redesignation request,
maintenance plan, and base year inventories for the Reading area, if
Pennsylvania does not correct the deficiencies. In addition, for the
purposes of redesignation, EPA proposed approval of Pennsylvania's
legislative authority to adopt and implement a vehicle inspection and
maintenance program. Finally, EPA proposed a change in its policy on
redesignation requirements for ozone nonattainment areas in the OTR.
Public comments were received on the Notice of proposed rulemaking
(NPR), and are addressed below in the Response to Comments section of
this document.
Background
Pennsylvania formally requested that EPA redesignate the Reading
area on November 12, 1993. Pennsylvania submitted the maintenance plan
and 1990 VOC, NOX, and CO base year inventories for the
Reading ozone nonattainment area as formal SIP revisions on November
12, 1993. Pennsylvania amended the maintenance plan on January 13, 1994
and May 12, 1995. Most recently, Pennsylvania submitted a revised
maintenance plan and revised inventories on January 28, 1997.
On October 10, 1996, EPA published a proposed approval of the
redesignation request, maintenance plan, and inventories, contingent
upon Pennsylvania correcting deficiencies identified in its submittals
(61 FR 53174). On January 28, 1997, Pennsylvania submitted a
maintenance plan and 1990 base year inventories for the Reading area,
which completely supersede the previous submittals and address the
requirements of EPA's proposed approval.
As stated in EPA's proposed approval of the Reading area
redesignation request, maintenance plan, and 1990 base year inventories
(61 FR 53174), in order to correct the deficiencies that exist in the
redesignation request, maintenance plan, and 1990 base year emission
inventories, Pennsylvania was required to submit the following to EPA
by February 3, 1997:
(1) Adequate technical support to justify the projected emission
inventories (2007 and 2004), including growth factors (not surrogates),
sample calculations for point, area, and mobile sources, and mobile
source emissions modeling sample runs;
(2) Technical support to justify the 1990 base year emission
inventories submitted in the redesignation request. This support must
include sample calculations for point, area, and mobile sources, a list
of all point sources, and mobile source emissions modeling;
(3) Complete and approvable reasonably available control technology
(RACT) SIP revisions for all applicable sources (all VOC and
NOX sources with the potential to emit 100 tons per year
(TPY) or more in the Reading area);
(4) A declaration that all required RACTs have been submitted; and
(5) SIP revisions to the Reading area maintenance plan so that it
provides adequate contingency measures. The plan must contain a list of
measures to be adopted and a schedule and procedures for adoption and
implementation. The plan must also identify specific triggers used to
determine when the contingency measures need to be implemented and a
schedule for implementation of the contingencies in the event that they
are implemented. The list of contingency measures must include a basic
vehicle inspection and maintenance (I/M) program, in the event that
enhanced I/M requirement under section 184 is not implemented. The plan
must contain a schedule for implementation of a basic I/M program that
complies with 40 CFR 51.372(c)(4). This schedule will be triggered when
Pennsylvania chooses to implement basic I/M as a contingency measure.
EPA's Evaluation of Pennsylvania's January 28, 1997 SIP Submittal
EPA has determined that Pennsylvania's January 28, 1997 SIP
submittal has adequately addressed the five requirements listed above,
and thereby corrected all deficiencies that previously existed in
Pennsylvania's maintenance plan and 1990 VOC, NOX, and CO
inventories for the Reading ozone nonattainment area. A brief
description of how Pennsylvania's submittal addresses the five
requirements is provided below.
(1) Projected Emission Inventories
Pennsylvania's January 28, 1997 revision to the maintenance plan
for the Reading area includes adequate technical support to justify the
projected emission inventories (2007 and 2004), including growth
factors (not surrogates), sample calculations for point, area, and
mobile sources, and mobile source emissions modeling sample runs.
(2) 1990 Base Year Emission Inventories
Pennsylvania's revised maintenance plan for the Reading area
contains adequate technical support to justify the 1990 base year
emission inventories for the Reading area. The support materials
include sample calculations for point, area, and mobile sources, a list
of all point sources, and mobile source emissions modeling.
Pennsylvania developed an attainment emissions inventory, for the
year 1992, to identify the level of emissions sufficient to achieve the
ozone standard. The revised maintenance plan contains comprehensive
inventories for the 1990 base year, as well as the years 1992, 2004 and
2007, prepared according to EPA guidance for ozone precursors, VOCs,
NOX, and CO emissions to demonstrate attainment and
maintenance. The inventories include area, stationary, non-road mobile
and mobile sources. The 1992 inventory is considered representative of
attainment conditions because the standard was not violated during
1992, and because that year was one of the three years upon which the
attainment demonstration was based. The plan includes a demonstration
that emissions will remain below the 1992 attainment year levels for a
10 year period (2007) and provides an interim-year inventory, as
required by EPA guidance, for the year 2004. Pennsylvania has
demonstrated that emissions for ozone precursors through the year 2007
will remain below the 1992 attainment year levels because of permanent
and enforceable measures, while allowing for growth in population and
vehicle miles traveled (VMT).
The following table summarizes the average peak ozone season
weekday VOC, NOX, and CO emissions for the major
anthropogenic source categories for the 1990 base year inventory, the
1992 attainment year inventory, and the projected 2004 and 2007
inventories for the Reading area.
------------------------------------------------------------------------
Emissions (tons per day) 1990 1992 2004 2007
------------------------------------------------------------------------
VOCs
------------------------------------------------------------------------
Point sources....................... 12.41 12.01 11.73 12.03
Area sources........................ 25.96 25.13 21.47 20.96
[[Page 24828]]
Mobile sources...................... 25.29 22.59 19.36 19.00
-----------------------------------
Total........................... 63.66 59.73 52.56 51.99
------------------------------------------------------------------------
NOX
------------------------------------------------------------------------
Point sources....................... 25.60 25.20 21.65 22.40
Area sources........................ 2.63 2.65 2.78 2.82
Mobile sources...................... 29.54 28.78 25.57 25.43
-----------------------------------
Total........................... 57.77 56.63 50.00 50.65
------------------------------------------------------------------------
CO
------------------------------------------------------------------------
Point sources....................... 9.12 8.55 7.83 7.71
Area sources........................ 2.65 2.66 2.74 2.76
Mobile sources...................... 252.74 225.22 165.52 166.20
-----------------------------------
Total........................... 264.51 236.43 176.09 176.67
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(3) RACT
Pennsylvania has submitted RACT SIP revisions for all major sources
subject to RACT in the Reading area. At the time of EPA's proposed
approval, on October 10, 1996, EPA had identified four sources for
which Pennsylvania was required to submit RACT SIPs. Subsequently, EPA
identified a fifth source as being subject to RACT. However,
Pennsylvania's revision to the Reading area maintenance plan indicates
that two of these sources are subject to federally enforceable state
operating permit conditions that limit their potential emissions to
less than 100 tons per year NOX. Therefore, EPA considers
these sources to be no longer subject to RACT.
On March 20, 1997, Pennsylvania withdrew the NOX portion
of its RACT SIP revision for Lucent Technologies (AT&T)--Reading. This
source is subject to federally enforceable state operating permit
conditions that limit its potential emissions to less than 100 tons per
year NOX. Therefore, EPA considers this source to be subject
to VOC RACT, but not NOX RACT.
Pennsylvania submitted RACT SIP revisions for the newly identified
source on January 21, 1997. Pennsylvania submitted RACT SIP revisions
for the remaining two RACT sources on January 28, 1997.
Furthermore, as shown in the following tables, EPA has approved all
RACT SIPs for the Reading area. Thus, Pennsylvania has fulfilled its
moderate area RACT obligation under section 182 for the Reading area.
----------------------------------------------------------------------------------------------------------------
Pennsylvania EPA approval
SOURCE submittal date signature EPA approval publication
----------------------------------------------------------------------------------------------------------------
VOC RACT
----------------------------------------------------------------------------------------------------------------
W.R. Grace and Co.--FORMPAC Div.............. 9/20/95 4/19/96 5/16/96
62 FR 24706
Glidden Co.--Reading......................... 6/10/96 4/1/97 4/18/97
Garden State Tanning, Inc.--Fleetwood........ 8/1/95 4/1/97 4/18/97
Brentwood Industries, Inc.--Reading.......... 5/2/96 3/31/97 4/18/97
Metropolitan Edison Co. (MetEd)--Titus....... 3/27/95 3/31/97 4/18/97
Lucent Technologies (AT&T)--Reading.......... 8/1/95 4/1/97 4/18/97
Morgan Corp.--Morgantown..................... 11/15/95 3/31/97 4/18/97
Quaker Maid (Schrock Cabinet Group).......... 5/2/96 3/31/97 4/18/97
North American Fluoropolymers Co............. 3/21/96 3/31/97 4/18/97
Maier's Bakery--Reading...................... 11/15/95 3/31/97 4/18/97
----------------------------------------------------------------------------------------------------------------
NOX RACT
----------------------------------------------------------------------------------------------------------------
Metropolitan Edison Co (MetEd)--Titus........ 3/27/95 3/31/97 4/18/97
Allentown Cement Co, Inc.--Evansville........ 11/15/95 3/31/97 4/18/97
Texas Eastern Transmission Corp.-- 1/28/97 3/31/97 4/18/97
Bechtelsville.
Texas Eastern Transmission Corp.--Bernville.. 2/3/97 3/31/97 4/18/97
Carpenter Technology Corp.--Reading.......... 1/21/97 3/31/97 4/18/97
Carpenter Technology Corp.--Reading.......... 1/21/97 3/31/97 4/18/97
----------------------------------------------------------------------------------------------------------------
(4) RACT Declaration
In the cover letter for Pennsylvania's January 28, 1997 submittal,
which transmitted amendments to its maintenance plan and 1990 base year
inventories for the Reading area, Pennsylvania stated that all required
RACTs for the Reading area ``will be submitted by February 3, 1997.''
In fact, all required RACT SIPs were submitted to EPA as SIP revisions
by January 28, 1997.
[[Page 24829]]
(5) Contingency Measures
Pennsylvania has revised the maintenance plan for the Reading area
to include appropriate triggers for its contingency measures. When the
contingency plan is triggered, Pennsylvania has committed to adopt
within one year, or as expeditiously as practicable, one or more
contingency measures. The contingency measures will be triggered if the
area experiences a violation of the ozone standard. In addition,
Pennsylvania will develop a periodic inventory every 3 years. If a
periodic inventory exceeds the attainment year inventory (1992) by 10
percent or more, Pennsylvania will evaluate the control measures to see
if any contingency measure should be implemented. Finally, a
contingency measure can be triggered if the Reading area experiences an
exceedance of the ozone standard.
Pennsylvania's revised maintenance plan for the Reading area
includes, as a contingency measure, the low enhanced I/M program that
Pennsylvania submitted to EPA on March 22, 1996. Pennsylvania submitted
this low enhanced program under the November 28, 1995 National Highway
System Designation Act (NHSDA). EPA's final conditional interim
approval of the Pennsylvania's I/M program was published in the Federal
Register on January 28, 1997 (62 FR 4004). Pennsylvania estimates that
this program will result in a VOC emission reduction of 1.5 tons per
day and a NOX emission reduction of 0.2 tons per day in the
Reading area. It should be noted that, although it has been listed as a
contingency measure, Pennsylvania intends to fully implement this low
enhanced program by November 15, 1999. EPA considers the actual
implementation of low enhanced I/M in the Reading area to be
environmentally better than a contingency measure that may be
implemented, if the contingency plan is triggered.
Pennsylvania's revised maintenance plan for the Reading area
includes, as a second contingency measure, improved rule effectiveness.
In the contingency plan, Pennsylvania has included a list of rule
effectiveness matrix activities that Pennsylvania intends to implement
to achieve enhance rule compliance, and a schedule for implementation
of these activities. Facilities that fall under the Standard Industrial
Classification (SIC) codes 26, 27, 30, 31, 34, and 51 will be effected
by this contingency measure, should it be triggered. Pennsylvania
estimates that this measure, if triggered, would result in a VOC
emission reduction of 1.05 tons per day in the Reading area.
Other specific provisions of the maintenance plan and 1990 base
year inventories, and the rationale for EPA's action are explained in
the NPR and the technical support documents that EPA prepared for this
action, and will not be restated here.
Response to Comments
EPA received four comment letters on its proposed approval and
proposed disapproval of the Reading area redesignation request,
maintenance plan, and 1990 base year inventories. Comments were
received from (1) The Berks County Planning Commission (BCPC), (2) The
Berks County Board of Commissioners (BCBC) and Berks County Industrial
Development Authority (BCIDA), (3) The Pennsylvania Chemical Industry
Council (PCIC), and (4) The Clean Air Council (CAC).
Comment #1
BCPC, BCBC, BCIDA, and PCIC support EPA's proposed approval and
state that the Commonwealth is in the process of meeting all applicable
redesignation criteria for the Reading area. They also assert that the
fact that the Reading area has met the ozone standard since 1991 should
be the overriding consideration for EPA. BCPC, BCBC, and BCIDA contend
that the remaining four redesignation criteria under section
107(d)(3)(E) of the Clean Air Act (the Act) are ``secondary
requirements.'' They go on to claim that delaying the redesignation of
the Reading area ``will prohibit economic growth and development in the
Berks County Region.''
EPA Response
Under section 107(d)(3)(E) of the Act, all five of the following
criteria must be met for an ozone nonattainment area to be redesignated
to attainment:
1. The area must meet the ozone NAAQS.
2. The area must meet applicable requirements of section 110 and
Part D of the Act.
3. The area must have a fully approved SIP under section 110(k) of
the Act.
4. The area must show that its experienced improvement in air
quality is due to permanent and enforceable measures.
5. The area must have a fully approved maintenance plan under
section 175A of the Act, including contingency measures.
The second, third, fourth, and fifth criteria are as important as
the first. These four criteria are needed to assure that any
improvement in air quality is due to permanent and enforceable
measures, and not year-to-year fluctuations in emissions and/or
meteorological conditions. They also ensure that the improvement in air
quality will be maintained, and any future violations of the ozone
standard will be addressed as expeditiously as possible. EPA cannot
approve a redesignation request unless all five criteria are met. As
stated above, EPA believes that the Reading area has now met all five
criteria. Therefore, EPA is approving the Commonwealth's redesignation
request and maintenance plan for the Reading area.
Comment #2
BCPC, BCBC, and BCIDA support EPA's proposed policy change that
would make redesignation requirements for areas in the OTR consistent
with requirements for areas outside the OTR by interpreting meeting the
requirements under section 184 of the Act as not being a prerequisite
for the purpose of redesignation.
EPA Response
EPA agrees with this comment, for the reasons stated in its
proposal and in the further responses to comments set forth below. In
addition, EPA notes that, at this time, Pennsylvania has made
submissions addressing all of its section 184 requirements for the
Reading area, and has received or is awaiting their approval by EPA.
As an alternative ground for approving the Reading area
redesignation request, EPA has concluded that, even if the section 184
requirements were somehow deemed ``applicable'' requirements for
purposes of section 107(d)(3)(E), EPA is empowered to create a de
minimis exception for them. Because the Reading area does not rely upon
them to demonstrate attainment and maintenance, and because these
requirements remain in effect after redesignation, EPA has determined
that requiring full approval of them prior to redesignation would be of
trivial environmental significance. Under Alabama Power v. Costle, 636
F.2d 323, 360-61 (D.C. Cir. 1979), EPA may establish de minimis
exceptions to statutory requirements where the application of the
statutory requirements would be of trivial or no value environmentally.
Here, EPA finds that there is little or no benefit to insisting that
the section 184 requirements be met prior to redesignation, since they
remain in force regardless of the area's
[[Page 24830]]
redesignation status, and are unrelated to it.
EPA notes, moreover, that the Reading area has already fulfilled
most of its obligations under section 184. It has satisfied the RACT
requirements. Only two limited aspects of Reading's section 184
requirements are subject to further undertakings; an element of its new
source review (NSR) program, and, certain conditions related to its low
enhanced I/M program. With respect to I/M, Pennsylvania has obtained
final conditional interim approval of its low enhanced I/M program.
With respect to NSR, on April 22, 1997, the Regional Administrator of
EPA, Region III signed a proposed limited approval of Pennsylvania's
February 4, 1994 NSR submittal. EPA has proposed to grant limited
approval of this SIP revision because it strengthens the current SIP's
NSR requirements, and because it limits the use of prior shutdown
credits in a manner that is consistent with EPA's NSR reform
rulemaking, which was proposed for approval in the July 23, 1996
Federal Register. See 61 FR 38249. This NSR reform rulemaking proposes
to lift the current prohibition on the use of prior shutdown credits.
The Pennsylvania SIP revision limits, but does not prohibit the use of
prior shutdown credits. Current NSR program requirements prohibit the
use of prior shutdown credits. However, it is important to note that
Pennsylvania's existing NSR SIP rule also does not prohibit the use of
prior shutdown credits, and that the Pennsylvania SIP revision is
generally consistent with EPA's proposed NSR reform rulemaking.
Therefore, EPA has proposed limited approval of this SIP revision based
upon the fact that it strengthens the existing SIP's NSR requirements,
and upon its conformance with EPA's proposed NSR reform rulemaking.
When EPA promulgates the NSR reform rule, it will assess Pennsylvania's
SIP for conformance with that promulgated version.
Comment #3
CAC asserts that EPA's proposed policy change that would interpret
meeting the requirements under section 184 of the Act as not being a
prerequisite for the purpose of redesignation ``would flatly contravene
section 107(d)(3)(E),'' which requires an area to meet all applicable
section 110 and part D requirements before it can be eligible for
redesignation. CAC further claims that ``EPA lacks discretion to pick
and choose among those requirements, imposing some and dispensing with
others.'' CAC maintains that ``EPA's proposed policy contravenes the
Act and must not be adopted,'' and goes on to state that even if the
Commonwealth corrects all the deficiencies listed in EPA's proposed
approval of the Reading redesignation request, EPA must still deny the
redesignation request, ``because the Reading area lacks several SIP
elements required by Part D and Sec. 110, including those mandated by
Secs. 184, 172(c)(9), 182(b)(1)(A)(I), and 176(c).''
EPA Response
As stated in EPA's proposal for this policy change, EPA believes it
is reasonable and appropriate to interpret the section 184 requirements
as not being applicable requirements for purposes of evaluating a
redesignation request, because the requirement to submit these SIP
revisions continues to apply to areas in the OTR after redesignation to
attainment, and because these control measures are region-wide
requirements and do not apply to the Reading area by virtue of the
area's nonattainment designation.
With respect to its conclusion that section 184 requirements are
inapplicable for purposes of evaluating a redesignation request, EPA
has construed applicable requirements as being those that must be
satisfied prior to redesignation because they will not remain in force
after redesignation, and whose purpose is related to assuring
attainment and maintenance of the NAAQS in the area seeking
redesignation. EPA has in the past interpreted ``applicable
requirements'' in light of the purposes of the redesignation
requirement. The requirements that are applicable for purposes of
redesignation are those whose purpose is to assure attainment and
maintenance of the NAAQS for the area being redesignated. Section 184
measures are region-wide requirements that do not apply to the Reading
area by virtue of its designation. Their purpose is to reduce regional
emissions in the OTR, not to assure attainment and maintenance in the
area being redesignated.
In addition, the section 184 requirements remain applicable after
redesignation, constituting the extra measures that all areas in the
OTR, both attainment and nonattainment, must implement to reduce the
possibility of transport to areas outside of the area being
redesignated. EPA has determined that areas in the OTR, such as the
Reading area, may be redesignated whether or not they have met the
section 184 requirements at the time of redesignation, since they
remain obligated to satisfy them without regard to their designation.
Here, the Reading area has met all applicable requirements for
redesignation for areas not in the OTR. For areas in the OTR, section
184 requirements will remain in effect after redesignation, and thus
redesignation will not have operated to relieve the Reading area of the
obligation to meet them. For that reason, and for the reasons set forth
in its proposal EPA has determined that the section 184 requirements
are not applicable requirements for the purpose of redesignation.
The rationale for this interpretation is in part analogous to that
relied upon and unchallenged with respect to conformity requirements
and oxyfuels. See Cleveland Notice of Final Rulemaking 61 FR 20467-
20468 (May 7, 1996) and Tampa, Notice of Final Rulemaking, 60 FR 62748,
62741 (December 7, 1995). Because redesignation will not allow these
requirements to be evaded, it does not undermine their enforcement or
the goals of redesignation.
Moreover, as EPA has set forth above, in its response to Comment
#2, even if the section 184 requirements were interpreted to be
applicable, EPA is empowered to create an exception to these
requirements based upon an analysis that shows that they are of de
minimis value as a prerequisite to redesignation. This constitutes a
separate and independent ground for concluding that the Reading area is
entitled to approval of its request for redesignation.
In reaching its conclusions, EPA is not ``picking and choosing''
among requirements, but making principled interpretations of what
constitutes an applicable requirement or valid exception to a
requirement, based upon a reading of the statute.
With respect to EPA's reliance on the determination of attainment
in finding that the Reading area has met the requirements for
redesignation, the grounds for EPA's interpretation of section
182(b)(l)(A)(I) and 172(c)(9) interpretations were set forth in EPA's
May 10, 1995 policy and in the Federal Register notices approving the
redesignation request of Cleveland, Ohio 61 FR 20458 (May 7, 1996) and
Salt Lake City, Utah. The policy was upheld in Sierra Club v. EPA, No.
95-9541 (10th Cir. 1996).
Comment #4
CAC challenges EPA's rationale for its proposed redesignation
policy change. In EPA's proposal, the Agency stated that the State
remains obligated to adopt section 184 requirements even after
redesignation, and would risk sanctions for failure to do so. CAC
claims that the
[[Page 24831]]
threat of sanctions has not improved the timeliness or quality of SIP
revisions submitted by states in the OTR, including Pennsylvania, and
that ``EPA has seldom followed through'' on its threat to impose
sanctions in these areas.
EPA Response
EPA contends that a state's obligation under the Act to submit all
section 184 requirements, established in the Act to address long-range
transport of ozone and ozone precursors, coupled with the threat of
sanctions for non-submittal or inadequate submittal, is sufficient to
ensure that states will fulfill all requirements, even after an area
has been redesignated. This is evidenced in the Reading area, where
Pennsylvania is in the process of addressing all applicable section 184
requirements that have due dates prior to Pennsylvania's formal
redesignation request for the Reading area.
The argument that redesignation provides the incentive for
fulfilling these requirements, while the threat of sanctions is not
enough of a disincentive, is not persuasive. First, the purpose of
redesignation is not to enforce any particular set of requirements, but
rather to assure attainment and maintenance of the NAAQS for the area
being redesignated. Second, to the extent that, as a side-effect,
redesignation provides an ancillary incentive to meet requirements,
that incentive is proportionately reduced where an area remains
obligated to meet these requirements. As we have noted, the Reading
area remains obligated to fulfill the section 184 requirements after
redesignation or faces the threat of sanctions or a SIP call.
The commenter has not shown that obtaining approval for
redesignation would result in areas shirking their section 184
responsibilities. As set forth above, Pennsylvania has demonstrated
that it does not take these requirements lightly. Pennsylvania has
submitted its NSR rules, which have received a limited approval from
EPA, pending final issuance of EPA's proposed revision of its NSR
rules. Pennsylvania has also received conditional interim approval for
its enhanced I/M program. Pennsylvania has made its section 184
submissions for areas in the commonwealth designated attainment, as
well as those seeking redesignation, thereby demonstrating its
willingness to comply with these requirements even in the absence of
any incentive to redesignate. Under these circumstances, disapproving
the redesignation request would yield no discernible environmental
benefit. Any such benefit would be dependent upon the speculation that
denial of redesignation might somehow secure compliance with
requirements that have already been substantially completed, and which
are enforceable by other means.
Reasonably Available Control Technology (RACT): As stated above,
Pennsylvania has fulfilled its moderate area RACT obligation under
section 182 for the Reading area by submitting complete and approvable
RACT SIPs for all sources of VOC and NOX with the potential
to emit 100 tons per year (TPY) or greater in the area. EPA has
approved all of these RACT submittals. Under section 184, Pennsylvania
is also obligated to submit RACT SIP revisions for all VOC sources with
the potential to emit between 50 and 100 TPY. Only one such source
exists in the Reading area, Birchcraft Industries, Inc. This source had
the potential to emit 79.2 TPY VOC. However, this source is subject to
federally enforceable state operating permit conditions that limit its
potential emissions to less than 50 TPY VOC. EPA SIP approved this
limit on May 16, 1996 (62 FR 24706). Therefore, EPA considers this
source to be no longer subject to RACT. Thus, Pennsylvania has
fulfilled its OTR RACT obligation under section 184.
Vehicle Inspection and Maintenance (I/M): On March 22, 1996,
Pennsylvania submitted a low enhanced I/M program under the November
28, 1995 NHSDA. EPA's final conditional interim approval of the
Pennsylvania's I/M program was published in the January 28, 1997
Federal Register (62 FR 4004). Pennsylvania intends to fully implement
this low enhanced program by November 15, 1999.
New Source Review (NSR): On February 4, 1994, Pennsylvania
submitted its final NSR regulations to EPA. EPA determined that the
submittal was complete on February 28, 1994. On April 22, 1997, EPA's
proposed limited approval of Pennsylvania's NSR submittal was signed by
the Regional Administrator.
Comment #5
CAC contends that EPA's proposed policy change ``ignores the
rationale offered in the General Preamble'' to Title I of the Clean Air
Act, which states that an area must meet the applicable requirements of
sections 182, 184, and 185 in order to be redesignated (57 FR 13564,
April 16, 1992). The General Preamble goes on to say that ``contingency
measures of the maintenance plan will require, at a minimum, that the
measures in place just before redesignation be implemented if future
violations occur.''
EPA Response
As stated in EPA's proposal for this redesignation policy change,
EPA is not waiving the section 184 OTR requirements. These requirements
remain in place, even after redesignation to attainment. Therefore,
unlike contingency measures that would only be adopted if triggered,
redesignated areas in the OTR continue to be obligated to fulfill these
OTR requirements, regardless of attainment designation or maintenance
of the standard. Furthermore, EPA's proposed approval of the Reading
area's redesignation request and maintenance plan required Pennsylvania
to include I/M as a contingency measure. As stated above, not only did
Pennsylvania include I/M in its contingency plan for the Reading area,
but it also intends to fully implement its low enhanced program I/M by
1999.
The commenter's assertion that the new policy ``ignores the
rationale offered in the General Preamble'' that it is ``particularly
important'' to meet the section 182, 184 and 185 requirements prior to
redesignation does not withstand scrutiny, since that rationale is not
applicable to the circumstances presented by the Reading redesignation.
The General Preamble stated that it would be important to meet these
requirements so that they would be in place and therefore required to
be included in the maintenance plan as contingency measures ``if future
violations occur''. But this rationale has no bearing on the situation
of an OTR state such as Pennsylvania, where the section 184
requirements will remain fully applicable, and where they will not be
relegated to the role of contingency measures after redesignation. Thus
the justification in the General Preamble and cited by the commenters
for requiring the section 184 measures to be in place prior to
redesignation is simply inapposite with respect to the Reading area.
Comment #6
CAC charges that EPA's proposed redesignation policy change ``works
at cross-purposes with efforts to control long-range transport
problems, the very problem that underlies the OTR and the requirements
applicable there.''
EPA Response
As stated in EPA's proposal of this policy change, EPA is not
waiving the section 184 requirement, established in the Act to address
long-range transport of ozone and ozone precursors. Even
[[Page 24832]]
after redesignation to attainment, a state's obligation to submit SIP
revisions for the section 184 requirements continues to apply to areas
in the OTR.
EPA's new policy is not at ``cross-purposes'' with efforts to
control transport. As stated above, there is no indication that
allowing compliance with the section 184 requirements after
redesignation would result in frustrating the satisfaction of those
requirements. In the case of the Reading area, Pennsylvania has made
its submissions with respect to RACT, NSR, and I/M. These programs have
received either full, conditional, or limited approval. Moreover, the
section 184 requirements are extrinsic to an area's status for
designation purposes. Assurance of compliance with the section 184
requirements is to be achieved not through the redesignation process,
but by the sanctions provisions provided by the Act.
Comment #7
CAC argues that ``EPA's new policy tries to have it both ways.''
CAC claims that EPA previously ``asserted that requirements
specifically pegged to an area's attainment status or to reasonable
further progress need not be met as a prerequisite to redesignation.''
This refers to EPA's 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.'' In that memorandum, 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. CAC goes on to argue that EPA's rationale for its
proposed redesignation policy change, which ``contends that because the
Sec. 184 requirements are not pegged to attainment, they too are not
prerequisites to redesignation,'' contradicts the Agency's previous
position.
EPA Response
EPA's May 10, 1995 policy memorandum interprets an area's
obligation to submit SIP revisions for RFP, attainment demonstrations,
and other related provisions as not applicable, if an ozone
nonattainment area subject to those requirements is monitoring
attainment of the ozone standard. The Act's RFP and attainment
demonstrations requirements are intended to move an area towards
attainment of the ozone standard. If an area is already attaining the
standard, EPA believes that it is reasonable to suspend these
requirements for as long as an area attains the standard. This view was
upheld by the United States Court of Appeals for the Tenth Circuit in
Sierra Club v. EPA, No. 95-9541 (10th Cir. 1996). EPA maintains that
its new redesignation policy does not conflict with its May 10, 1995
policy. EPA's new redesignation policy relates to OTR requirements
under section 184 of the Act, which are not related to RFP or an area's
ability to demonstrate attainment of the standard. These OTR
requirements are intended to reduce regional emissions in the OTR.
Moreover, as stated above, EPA is not waiving these requirements. All
areas in the OTR, regardless of attainment status, are obligated to
fulfill these requirements.
The May 10, 1995 determination of attainment policy dealt with a
completely different set of issues not comparable to those addressed by
section 184. EPA's rationale for finding the provisions of sections 182
and 172(c) not applicable was different from, but not inconsistent
with, its rationale for finding the section 184 provisions
inapplicable. In its May 10 policy, EPA interpreted as inapplicable
certain statutory provisions--RFP, attainment demonstration, and
section 172(c) contingency measures--whose requirements served no
useful function once an area was attaining the standard, and whose
purpose was achieved prior to redesignation. This rationale does not
exclude independent justifications for interpreting other provisions of
the Act as inapplicable. The grounds for finding section 184
requirements inapplicable is that these requirements remain in place
even after redesignation, and thus redesignation will not preclude them
from being enforced. This justification, although different from the
May 10 policy, is not in conflict with it.
Even if EPA were not to rely on its new policy of interpreting
section 184 requirements as inapplicable for purposes of evaluating
redesignation requests, EPA's authority to create a de minimis
exception to requirements provides a sufficient independent alternative
ground for finding that these requirements have been met for purposes
of redesignation.
Since the Reading area has demonstrated attainment and maintenance
without the section 184 measures, and since these requirements will
remain in place, EPA believes that there are grounds for making a
finding that requiring satisfaction of these requirements prior to
redesignation yields only insignificant environmental benefits. Indeed,
EPA concludes that its existing policy with respect to NSR in the
context of redesignation warrants a finding that the Reading area
qualifies for a de minimis exception to the NSR requirement.
NSR: In a memorandum of Mary Nichols, Assistant Administrator for
Air and Radiation, dated October 14, 1994, entitled Part D New Source
Review (part D NSR) Requirements for Areas Requesting Redesignation to
Attainment), EPA set forth its policy not to insist on a fully-approved
NSR program as a prerequisite to redesignation as an exercise of the
Agency's general authority to establish de minimis exceptions to
statutory requirements. See Alabama Power Co. v. Costle, 636 F.2d 323,
360-61 (D.C. Cir. 1979). Under Alabama Power, EPA has the authority to
establish de minimis exceptions to statutory requirements where the
application of the statutory requirements would be of trivial or no
value environmentally. In the Mary Nichols memorandum of October 14,
EPA concluded that, although the NSR provisions of section 110 and Part
D appear to be applicable requirements that would have to be met prior
to redesignation, EPA may establish a de minimis exception to the
requirement where no significant environmental value exists. EPA
determined that where maintenance is demonstrated without reliance on
NSR reductions, and where a prevention of significant deterioration
(PSD) program will replace it, there is little or no environmental
benefit from requiring full approval of NSR prior to redesignation, and
thus a de minimis exception is justified. See Nichols memorandum. See
also Cleveland final rulemaking notice (FRN), 61 FR 20469-20470 (May 7,
1996). Here, similarly, Pennsylvania has demonstrated that there is no
need for part D NSR during the maintenance period to provide for
continued maintenance of the NAAQS. To satisfy the requirements of
section 184, Pennsylvania has submitted a revision to its Part D NSR
program, which is awaiting EPA approval. EPA has concluded that these
circumstances warrant a further application and elaboration upon the de
minimis exception set forth in the October 14 memorandum. In accordance
with that policy, EPA has determined that, for an area outside the OTR,
there need not be a fully approved part D NSR program
[[Page 24833]]
prior to redesignation where it is not required for maintenance and
where it will be replaced by a PSD program. EPA believes that the
reasons underlying this de minimis exception apply with equal or
greater force to the Reading area, which has shown that NSR is not
required for maintenance but where Part D NSR obligations, rather than
PSD, will continue to apply after redesignation. Thus, EPA concludes
that the Mary Nichols memorandum and the principles on which it is
founded warrant an extension of the de minimis exception to the NSR
requirement imposed by section 184. This de minimis exception provides
a separate and independent ground for concluding that the Reading area
has met the requirements for redesignation with respect to NSR.
I/M: With respect to the I/M program, legislative authority for
basic I/M is sufficient to meet the I/M redesignation rule. Apart from
that, section 184 requires enhanced I/M, but it does not have to be
approved prior to redesignation, since redesignation will not operate
to relieve the Reading area of the requirement. The Reading area has in
fact received conditional approval of its enhanced I/M program, and the
area will start implementing the program by November, 1999.
Comment #8
CAC claims that EPA cannot support its proposed policy change by
``citing other instances where the Agency has failed to comply with the
Act. Kokechik Fisherman's Association v. Secretary of Commerce, 838
F.2d 795, 802-03 (D.C. Cir. 1988) (`[p]ast administrative practice that
is inconsistent with the purpose of an act of Congress cannot provide
an exception').'' CAC asserts that EPA cannot support its proposal by
citing the Agency's previous actions concerning conformity and
oxygenated fuels.
EPA Response
EPA maintains that its previous actions that determined conformity
and oxygenated fuels as not being applicable requirements for purposes
of evaluating redesignation requests comply with the Act. Furthermore,
those actions were the subjects of prior rulemaking, which EPA
promulgated after notice and comment. The period for review of those
actions has passed.
Final Action
Because Pennsylvania has corrected all deficiencies that were
previously identified in the redesignation request and maintenance plan
for the Reading area, EPA has determined that the Commonwealth's
submittals satisfy the Clean Air Act's five criteria for redesignation.
EPA is approving Pennsylvania's redesignation request for the area,
submitted on November 12, 1993, and the ten-year ozone maintenance plan
for the Reading area, which Pennsylvania submitted on January 28, 1997.
EPA is also approving the 1990 base year VOC, NOX, and CO
inventories for the Reading ozone nonattainment area, which were
submitted on January 28, 1997, because Pennsylvania has corrected all
deficiencies that were previously identified in those inventories. In
addition, for purposes of satisfying the I/M redesignation rule of
January 1995, EPA is approving Pennsylvania's legislative authority to
adopt and implement an I/M program. Finally, EPA is changing its policy
on redesignation requirements for ozone nonattainment areas in the OTR.
The policy change makes redesignation requirements for areas in the OTR
consistent with requirements for areas outside the OTR by interpreting
requirements under section 184 of the Clean Air Act as not being
applicable for the purpose of redesignation.
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.
III. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
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 Commonwealth of Pennsylvania is already imposing.
Therefore, because the Federal SIP approval does not impose any new
requirements, the Administrator 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 CAA, 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).
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. EPA
certifies that the approval of the redesignation request will not
affect a substantial number of small entities.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under Section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action 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 Commonwealth of Pennsylvania or local law,
and imposes no new requirements. Accordingly, no additional costs to
State, local, or tribal
[[Page 24834]]
governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 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 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, approving Pennsylvania's redesignation
request and maintenance plan for the Reading area, must be filed in the
United States Court of Appeals for the appropriate circuit by July 7,
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 may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: April 22, 1997.
Stanley L. Laskowski,
Acting 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 52.2020 is amended by adding paragraph (c)(123) to read
as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(123) The ten-year ozone maintenance plan for the Reading,
Pennsylvania area (Berks County) submitted by the Pennsylvania
Department of Environmental Protection on January 28, 1997:
(i) Incorporation by reference.
(A) Letter of January 28, 1997 from the Pennsylvania Department of
Environmental Protection transmitting the ten-year ozone maintenance
plan and 1990 base year emission inventories for the Reading area.
(B) The ten-year ozone maintenance plan for the Reading area,
including emission projections, control measures to maintain attainment
and contingency measures, adopted on February 3, 1997.
(ii) Additional material.
(A) Remainder of January 28, 1997 Commonwealth submittal pertaining
to the maintenance plan for the Reading area.
3. Section 52.2036 is amended by adding paragraph (e) to read as
follows:
Sec. 52.2036 1990 Base year emission inventory.
* * * * *
(e) EPA approves as a revision to the Pennsylvania State
Implementation Plan (SIP) the 1990 base year emission inventories for
the Reading, Pennsylvania area (Berks County) submitted by the
Secretary of the Environment, on January 28, 1997. This submittal
consists of the 1990 base year point, area, non-road mobile, biogenic
and on-road mobile source emission inventories in the area for the
following pollutants: volatile organic compounds (VOC), carbon monoxide
(CO), and oxides of nitrogen (NOX).
* * * * *
PART 81--[AMENDED]
4. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671.
Subpart C--Section 107 Attainment Status Designations
5. In Sec. 81.339 the ozone table is amended by revising the entry
for the Reading area, Berks County to read as follows:
Sec. 81.339 Pennsylvania.
* * * * *
Pennsylvania--Ozone
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------
Date 1 Type Date 1 Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Reading Area Berks County....... June 23, 1997..... Unclassifiable/
Attainment.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
1 This date is November 15, 1990, unless otherwise noted.
[[Page 24835]]
* * * * *
[FR Doc. 97-11910 Filed 5-6-97; 8:45 am]
BILLING CODE 6560-50-P