[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
------------------------------------------------------------------------

(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