[Federal Register Volume 62, Number 110 (Monday, June 9, 1997)]
[Rules and Regulations]
[Pages 31343-31349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14987]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 099-4063; FRL-5837-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; 15 Percent Plan and 1990 VOC Emission Inventory for the 
Philadelphia Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final rulemaking.

-----------------------------------------------------------------------

SUMMARY: EPA is granting conditional interim approval of the State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania, for the Philadelphia ozone nonattainment area, to meet 
the 15 percent reasonable further progress (RFP, or 15% plan), also 
known as rate-of-progress requirements of the Clean Air Act. EPA is 
granting conditional interim approval because the 15% plan submitted by 
Pennsylvania for the Philadelphia area relies on the inspection and 
maintenance (I/M) program that received a conditional interim approval. 
Finally, EPA is approving the Philadelphia 1990 VOC emission inventory 
with certain exceptions as explained herein.

DATES: This action is final on July 9, 1997.


[[Page 31344]]


ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
U.S. Environmental Protection Agency--Region III, 841 Chestnut 
Building, Philadelphia, Pennsylvania, 19107 and the Pennsylvania 
Department of Environmental Protection, Bureau of Air Quality, P.O. Box 
8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, Ozone/Carbon 
Monoxide and Mobile Sources Section (3AT21), USEPA--Region III, 841 
Chestnut Building, Philadelphia, Pennsylvania 19107, or by telephone 
at: (215) 566-2180 or via e-mail at: [email protected].

SUPPLEMENTARY INFORMATION: On March 11, 1997, EPA proposed conditional 
interim approval of the Philadelphia 15% plan and the 1990 VOC emission 
inventory (62 FR 11131). The basis for EPA's action is that the 
Philadelphia 15% plan on its face achieves the required 15% emission 
reduction but does not contain the required verification of emission 
calculations necessary for full approval and relies on the Pennsylvania 
Inspection and Maintenance (I/M) rule that received final conditional 
interim approval on January 28, 1997 (62 FR 4004). The details of the 
September 12, 1996 Pennsylvania submittal are contained in the March 
11, 1997 notice and accompanying technical support document and will 
not be reiterated here. The discussion here will address additional 
information submitted by Pennsylvania on April 10, 1997 and EPA's 
responses to public comments received on the proposed rulemaking 
notice. This action is being taken under section 110 of the Clean Air 
Act (the Act).

I. Pennsylvania DEP's April 10, 1997 Supplement

    Pennsylvania submitted a letter to EPA on April 10, 1997, within 
the required time frame, committing to satisfy all the conditions 
listed by EPA in the proposed rulemaking notice and within the time 
frames required by that notice. Included in its April 10, 1997 addendum 
is additional documentation to satisfy some of those conditions listed 
by EPA. Specifically, Pennsylvania submitted additional stationary 
source documentation (identified as Attachment 1 of its addendum) for 
the shutdown credits claimed in the 15% plan. Part of this 
documentation is the detailed emission inventory breakdown on a unit by 
unit basis for Philadelphia County that was not included in the 
September 12, 1996 submittal. Pennsylvania also included sample 
calculations and a copy of the methodology it followed to determine 
stationary source emissions (identified as Attachment 1 of its 
addendum) and revised charts and tables for insertion into the 
September 12, 1996 submittal (identified as Attachment 2 of its 
addendum). Pennsylvania adjusted the amount of shutdown credit claimed 
in the 15% plan and is now claiming 2.0 tons per day (TPD) rather than 
the 3.4 TPD claimed in the September 12, 1996 submittal. The revised 
charts and tables pertain to these corrections. These revisions occur 
in Figure 1.2, Table 5.3, Section 6.1.1, Table 6.3 and Section 6.2.3 of 
the Commonwealth's addendum to its 15% plan..
    EPA's evaluation of the April 10, 1997 addendum submitted by 
Pennsylvania is detailed in the technical support document (TSD) that 
is part of the docket to this rulemaking. Briefly, EPA has determined 
that Pennsylvania has resolved the inconsistencies with the 1990 VOC 
emissions inventory, with the exception of those certain source 
emissions at United States Steel--Fairless (USX--Fairless) located in 
Bucks County. Consequently, EPA is approving the 1990 VOC emission 
inventory submitted on September 12, 1996 for the Philadelphia 
nonattainment area, with the exception of certain sources located at 
USX--Fairless. These sources are identified as: 1) no. 3 blast furnace 
(source no. 243), 2) no.1 open hearth furnace (source no. 251), 3) no.1 
soaking pits (20) (source no. 300), 4) no.2 soaking pits (1-8) (source 
no. 330), 5) no.2 soaking pits (9-16) (source no. 338), and 6) 80 in. 
Hot strip mill (source no. 351). The 1990 VOC emissions for the above-
named sources at USX--Fairless were approved by EPA in a previous 
rulemaking notice (April 9, 1996, 61 FR 15709). That version of the 
1990 VOC emissions for the above-named sources at USX--Fairless remains 
SIP approved.
    Pennsylvania has satisfactorily documented the emission reduction 
credits due to shutdowns and over control with the exception of those 
credits claimed for following four sources: Congoleum (NEDS ID 0049), 
Sun R&M (NEDS ID 0025), Rohm & Haas (NEDS ID 0009), and BP Oil (NEDS ID 
0030). EPA has recalculated the available emission reduction credit 
from shutdown and over controlled sources based on the April 10, 1997 
documentation and is approving an emission credit of 1.82 TPD for the 
Philadelphia 15% plan. This is less than the 3.4 TPD figure in the 
September 12, 1996 Pennsylvania submittal and the 2.0 TPD figure in the 
April 10, 1997 addendum. The lesser amount of these credits does not 
jeopardize the ability of Pennsylvania to meet the 15% target level of 
emissions required by the Act. As a result of the additional 
documentation provided by Pennsylvania on April 10, 1997, Pennsylvania 
has satisfied conditions 1 through 3 listed in the notice of proposed 
rulemaking. The remaining conditions (4 and 5) pertain to the 
inspection and maintenance (I/M) rule. Pennsylvania expects to satisfy 
those conditions within the required time frames.

II. Public Comments and Response

    As a result of the March 11, 1997 proposed rulemaking notice, EPA 
received comments from the Clean Air Council (CAC). The comments and 
EPA's responses follow below.
    Comment 1: CAC agrees with EPA's assessment that the Philadelphia 
15% plan contains various defects and cannot be determined to achieve 
the 15% reduction required by the Act. CAC, however, states that these 
defects preclude approval of the 15% plan.
    Response 1: As described above, Pennsylvania's April 10, 1997 
addendum to its September 12, 1996 submittal resolves the emission 
inventory and creditability issues discussed in EPA's proposed 
rulemaking notice. As a result, EPA has determined that Pennsylvania 
has satisfied conditions 1 through 3 listed in the March 11, 1997 
proposed rulemaking notice (62 FR 11131). The remaining conditions 
pertain to I/M and allow Pennsylvania additional time in accordance 
with the National Highway Systems Designation Act. Consequently, the 
defects identified in the March 1997 proposed rulemaking notice have 
been remedied.
    Comment 2: CAC commented that the Philadelphia plan, which takes 
credit for federal control measures such as architectural and 
industrial maintenance coating, consumer/commercial products and 
autobody refinishing, should not be approved because those federal 
control measures have not yet been promulgated. CAC states that 
allowing such credit violates section 182(b)(1)(C) of the Act. CAC 
further commented that EPA cannot lawfully base SIP decisions on as-yet 
unpromulgated rules because it does not know what these final rules 
will say. CAC contends that allowing credit on as-yet unpromulgated 
rules, even with the caveat that the states must revisit the rule later 
if the federal rules turn out differently than predicted, amounts to an 
unlawful extension of a SIP

[[Page 31345]]

submission deadline. CAC stated that EPA must base its decision on the 
record before it at the time of its decision; not on some record that 
the agency hopes will exist in the future.
    Response 2: Section 182(b)(1)(A) of the Act requires states to 
submit their 15% SIP revisions by November, 1993. Section 182(b)(1)(C) 
of the Act provides the following general rule for creditability of 
emissions reductions towards the 15% requirement:

    Emissions reductions are creditable toward the 15 percent 
required, to the extent they have actually occurred, as of 
[November, 1996], from the implementation of measures required under 
the applicable implementation plan, rules promulgated by the 
Administrator, or a permit under Title V.

    This provision further indicates that certain emissions reductions 
are not creditable, including reductions from certain control measures 
required prior to the 1990 Amendments.
    This creditability provision is ambiguous. Read literally, it 
provides that although the 15% SIPs are required to be submitted by 
November 1993, emissions reductions are creditable as part of those 
SIPs only if ``they have actually occurred, as of [November 1996].'' 
This literal reading renders the provision internally inconsistent. 
Accordingly, EPA believes that the provision should be interpreted to 
provide, in effect, that emissions reductions are creditable ``to the 
extent they will have actually occurred, as of [November, 1996], from 
the implementation of [the specified measures]'' (the term ``will'' is 
added). This interpretation renders the provision internally 
consistent.
    Section 182(b)(1)(C) of the Act explicitly includes as creditable 
reductions those resulting from ``rules promulgated by the 
Administrator''. This provision does not state the date by which those 
measures must be promulgated, i.e., does not indicate whether the 
measures must be promulgated by the time the 15% SIPs were due 
(November, 1993), or whether the measures may be promulgated after this 
due date.
    Because the statute is silent on this point, EPA has discretion to 
develop a reasonable interpretation, under Chevron U.S.A. Inc. v. NRDC, 
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA believes it is 
reasonable to interpret section 182(b)(1)(C) of the Act to credit 
reductions from federal measures as long as those reductions are 
expected to occur by November, 1996, even if the federal measures are 
not promulgated by the November 1993 due date for the 15% SIPs.
    EPA's interpretation is consistent with the congressionally 
mandated schedule for promulgating regulations for consumer and 
commercial products, under section 182(e) of the Act. This provision 
requires EPA to promulgate regulations controlling emissions from 
consumer and commercial products that generate emissions in 
nonattainment areas. Under the schedule, by November, 1993-- the same 
date that the states were required to submit the 15% SIPs--EPA was to 
issue a report and establish a rulemaking schedule for consumer and 
commercial products. Further, EPA was to promulgate regulations for the 
first set of consumer and commercial products by November 1995. It is 
reasonable to conclude that Congress anticipated that reductions from 
these measures would be creditable as part of the 15% SIPs, as long as 
those reductions were to occur by November 1996.
    Crediting reductions from federal measures promulgated after the 
due date for the 15% SIPs is also sensible from an administrative 
standpoint. Crediting the reductions allows the states to accurately 
plan to meet the 15% reduction target from the appropriate level of 
state and federal measures. Not crediting such reductions would mean 
that the states would have to implement additional control requirements 
to reach the 15% mark; and that SIPs would result in more than a 15% 
level of reductions once the federal measures in question were 
promulgated and implemented. At that point in time, the state may seek 
to eliminate those additional SIP measures on grounds that they would 
no longer be necessary to reach the 15% level. Such constant revisions 
to the SIP to demonstrate 15% is a paper exercise that exhausts both 
the states' and EPA's time and resources.
    The fact that EPA cannot determine precisely the amount of credit 
available for federal measures not yet promulgated does not preclude 
granting the credit. The credit can be granted as long as EPA is able 
to develop reasonable estimates of the amount of VOC reductions from 
the measures EPA expects to promulgate. EPA believes that it is able to 
develop reasonable estimates, particularly because it has already 
proposed and taken comment on the measures at issue, and expects to 
promulgate final rules by the spring of 1998. Many other parts of the 
SIP, including state measures, typically include estimates and 
assumptions concerning VOC amounts, rather than actual measurements. 
For example, EPA's document to estimate emissions, ``Compilation of Air 
Pollutant Emission Factors,'' January 1995, AP-42, provides emission 
factors used to estimate emissions from various sources and source 
processes. AP-42 emission factors have been used, and continue to be 
used, by states and EPA to determine base year emission inventory 
figures for sources and to estimate emissions from sources where such 
information is needed. Estimates in the expected amount of VOC 
reductions are commonly made in air quality plans, even for those 
control measures that are already promulgated. Moreover, the fact that 
EPA is occasionally delayed in its rulemaking is not an argument 
against granting credits from these measures. The measures are 
statutorily required, and states and citizens could bring suit to 
enforce the requirements that EPA promulgate them. If the amount of 
credit that EPA allows the state to claim turns out to be greater than 
the amount EPA determines to be appropriate when EPA promulgates the 
federal measures, EPA intends to take appropriate action to require 
correction of any shortfall in necessary emissions reductions that may 
occur.
    The above analysis focuses on the statutory provisions that include 
specific dates for 15% SIP submittal (November 1993) and implementation 
(November 1996). These dates have expired, and EPA has developed new 
dates for submittal and implementation. EPA does not believe that the 
expiration of the statutory dates, and the development of new ones, has 
implications for the issue of whether reductions from federal measures 
promulgated after the date of the 15% SIP approval may be counted 
toward those 15% SIPs. Although the statutory dates have passed, EPA 
believes that the analysis described above continues to be valid.
    Comment 3: CAC commented that EPA cannot ignore the November 15, 
1996 statutory deadline simply because the deadline is now behind us. 
It contends that EPA's and states' unlawful delays have prevented 
compliance with the November 15, 1996 deadline and that EPA cannot now 
jettison the statutory deadlines by substituting the ``as soon as 
practicable'' test; rather, CAC states EPA must require compliance with 
an ``as soon as possible'' test and fix a compliance deadline. The 
commenter cited various court decisions in an effort to support its 
formulation of the ``as soon as possible'' test.
    Response 3: The case law cited by the commenter considers various 
circumstances, such as failure by EPA to promulgate rules on the 
statutorily mandated deadline or to take action on

[[Page 31346]]

state failures to make SIP submissions on the statutorily mandated 
deadline. See, e.g., Natural Resources Defense Council v. EPA, 22 F.3d 
1125 (D.C. Cir. 1994), Natural Resources Defense Council v. Train, 510 
F.2d 692 (D.C. Cir. 1975). These cases articulate various formulations 
of the standards by which the courts establish new deadlines. EPA 
believes that its formulation of the standard by which States must 
achieve the 15% reductions--``as soon as practicable''--is generally 
consistent with the case law.
    Further, EPA believes that Pennsylvania has demonstrated that it 
has met this standard. The notice of proposed rulemaking, the TSD, and 
other documents in the record establish that implementation of various 
15% measures including the I/M program is as soon as practicable. The 
main reasons for the delays in the development and implementation of 
Pennsylvania's 15% SIP relate to its enhanced I/M plan. Most recently, 
these enhanced I/M delays were closely associated with the enactment, 
in November, 1995, of the National Highway Systems Designation Act 
(NHSDA). The NHSDA afforded states the opportunity to revise their I/M 
plans in a manner that would be treated as meeting certain EPA 
requirements on an interim basis. The NHSDA provided additional time 
for the Commonwealth and EPA to develop and process the revised I/M 
plans. The Commonwealth acted expeditiously in developing and 
implementing a revised enhanced I/M program. However, the delays in 
developing and implementing the NHSDA I/M program rendered impossible 
achieving the 15% reduction target by the end of 1996.
    Moreover, EPA has reviewed other VOC SIP measures that are at least 
theoretically available to Pennsylvania, and has concluded that 
implementation of any such measures that might be appropriate would not 
accelerate the date of achieving the 15% reductions.
    EPA agrees with the commenter that in this particular case, a fixed 
deadline is appropriate. Accordingly, EPA will establish November 15, 
1999, as the date by which the 15% measures must be implemented to the 
extent necessary to generate the required amount of reductions.
    Comment 4: Any further delays in implementing VOC control measures, 
including most prominently, enhanced I/M, must not be tolerated. For I/
M, EPA's deadline must require implementation in the shortest time in 
which it is logistically possible to get the testing systems up and 
running. The National Highway Designation Act does not mention the 15% 
plan or authorize any delay of the achievement of the 15% emission 
reduction. Furthermore, missing the November 15, 1996 deadline 
unlawfully rewards states for failure to meet the deadline by giving 
them increased credits under national programs such as the Tier I 
Federal Motor Vehicle Control Program. CAC argues that such an approach 
unlawfully delays the achievement of clean air by allowing the states 
to reduce their own emission control efforts by the amount of the post-
November 1996 fleet turnover benefits. Consequently, EPA must deny the 
post-November 1996 Tier I credit and require states to adopt emission 
reductions to compensate for post-1996 VMT growth.
    CAC further argues that EPA cannot delay the section 182(b)(1) 
requirement for states to account for growth in the 15% plans to the 
post-1996 rate-of-progress plans. Particularly because the post-1996 
plans involve potential NOX substitution that is not 
permitted in the VOC-only 15% plans.
    Response 4: EPA disagrees with the comment. The National Highway 
Systems Designation Act was enacted by Congress in November of 1995. 
Section 348 of this statute provided states renewed opportunity to 
satisfy the Act's requirements related to the network design for I/M 
programs. States were not only granted the flexibility to enact test-
and-repair programs, but were provided additional time to develop those 
programs and to submit proposed regulations for interim SIP approval. 
Pennsylvania moved rapidly to propose I/M regulations on March 16, 
1996, and to submit to EPA a SIP containing those regulations, under 
the authority granted by the NHSDA.
    Under the terms of the 15% requirement in section 182(b)(1)(A)(I) 
of the Act, the SIP must--

provide for [VOC] emission reductions, within 6 years after the date 
of enactment of the Clean Air Act Amendments of 1990, of at least 15 
percent from baseline emissions, accounting for any growth in 
emissions after [1990].

    EPA interprets this provision to require that a specific amount of 
VOC reductions occur, and has issued guidance for computing this 
amount. The Commonwealth, complying with this guidance, has determined 
the amount of the required VOC reductions needed to meet the 15% goal. 
It is no longer possible for the Commonwealth to implement measures to 
achieve this level of reduction as the November 15, 1996 date provided 
under the 15% provisions has passed. Accordingly, EPA believes that the 
Commonwealth will comply with the statutory mandate as long as 
Pennsylvania achieves the requisite level of reductions on an as-soon-
as-practicable basis after 1996. In computing the reductions, EPA 
believes it acceptable for states to count reductions from federal 
measures, such as vehicle turnover, that occur after November 15, 1996, 
as long as they are measures that would be creditable had they occurred 
prior to that date. These measures result in VOC emission reductions as 
directed by Congress in the Act; therefore, these measures should count 
towards the achievement --however delayed--of the 15% VOC reduction 
goal.
    EPA does not believe states are obligated, as part of the 15% SIP, 
to implement further VOC reductions to offset increases in VOC 
emissions due to post-1996 growth. As noted above, the 15% requirement 
mandates a specific level of reductions. By counting the reductions 
that occur through measures implemented pre- and post-1996, SIPs may 
achieve this level of reductions. Although section 182(b)(1)(A)(I), 
quoted above, mandates that the SIPs account for growth after 1990, the 
provision does not, by its terms, establish a mechanism for how to 
account for growth, or indicate whether, under the present 
circumstances, post-1996 growth must be accounted for. EPA believes 
that its current requirements for the 15% SIPs meet section 
182(b)(1)(A)(I). In addition, although post-1996 VOC growth is not 
offset under the 15% SIPs, such growth must be offset in the post-1996 
plans required for serious and higher classified areas to achieve 9% in 
VOC reductions every three years after 1996 (until the attainment 
date). The fact that these post-1996 SIPs may substitute NOX 
reductions for VOC reductions in the 1996-1999 period does not 
undermine the integrity of the 15% SIPs. Allowing NOX 
substitution is fully consistent with the public health-based goals of 
the Act.
    Under EPA's approach, post-1996 growth will be accounted for in the 
plans that Congress intended to take account of such growth--the post-
1996 ``rate of progress'' SIPs. To shift the burden of accounting for 
such growth to the 15% plans, as the commenters would have EPA do, 
would impose burdens on states above and beyond what Congress 
contemplated would be imposed by the 15% requirement (which was 
intended to have been achieved by November 1996). In the current 
situation, where it is clearly impossible to achieve the target level 
of VOC reductions (a 15% reduction taking into account growth through 
November 1996) by November 1996, EPA believes that its approach is a 
reasonable and

[[Page 31347]]

appropriate one. It will still mean that post-1996 growth is taken into 
account in the SIP revisions Congress intended to take into account 
such growth and it means that the target level of VOC reductions will 
be achieved as soon as practicable. Once the post-1996 rate of progress 
plans are approved and implemented, areas will have achieved the same 
level of progress that they were required to have achieved through the 
combination of 15% and rate of progress requirements as was originally 
intended by Congress.
    Comment 5: EPA cannot approve SIPs if the state has failed to 
demonstrate approvability. In this regard, EPA has not been able to 
verify Pennsylvania's mobile source emission reduction credits but has 
stated that it has no reason to believe that Pennsylvania's methodology 
is flawed and is therefore approving the Philadelphia 15% plan. CAC 
stated that an absence of information requires disapproval.
    Response 5: EPA believes Pennsylvania has demonstrated that it has 
appropriately modeled its mobile source program benefits, through 
proper use of EPA's MOBILE emissions factor estimation model, combined 
with state vehicle miles of travel estimates. Due to the sheer 
magnitude the modeling task (i.e. the large number of modeling 
scenarios needed to compile inventories and evaluate emissions 
benefits) Pennsylvania faced when developing mobile source inventories 
and modeling the benefits of various mobile source programs, the 
Commonwealth utilized a post-processor model to run the numerous MOBILE 
modeling scenarios needed to characterize these emissions. It is not 
practical to submit the hundreds or even thousands of modeling input 
and output runs needed to evaluate the mobile source-related portions 
of the 15% rate-of-progress SIP.
    Pennsylvania instead submitted to EPA a list of the variables and 
assumptions utilized in its MOBILE modeling analysis, along with sample 
model input and output scenarios. Additionally, the Commonwealth 
submitted a demonstration of how the post-processor utilized MOBILE to 
generate composite index factors for use in determining mobile source 
emission factors for the Philadelphia area. Finally, the Commonwealth 
tallied mobile source emissions in summary tables for various programs, 
by county, etc. to present the results of its analysis.
    While the SIP does not contain sufficient data to reconstruct the 
analysis and, therefore, to independently verify the Commonwealth's 
claims stemming from the mobile source emissions analysis, EPA believes 
the Commonwealth's modeling methodology is sound. However, EPA has 
deferred the specific results of that modeling, in part, to the 
Commonwealth.
    Comment 6: EPA has pointed out information gaps in the Pennsylvania 
submittal, including the finding that Pennsylvania did not follow 
standard guidance and methodologies for projecting growth in the 1996 
inventory. EPA has also stated that there is a potential double 
counting issue related to emission credits but that it is not 
conditioning the approval of the Philadelphia 15% plan on these issues. 
CAC argued that these deficiencies speak to the heart of the 
calculation of the target emission reduction level and whether the 
claimed emission reductions are sufficient to meet that level. 
Therefore, although CAC believes that the Philadelphia 15% plan should 
be disapproved, at a minimum, it argues that the resolution of these 
deficiencies should be made additional conditions that the Commonwealth 
must satisfy for the 15% plan approval.
    Response 6: EPA has acknowledged the potential double counting of 
emission reductions in the Philadelphia 15% plan as part of its honest 
effort to credibly account for activities associated with the operation 
of the Pennsylvania emissions bank. The use of Bureau of Economic 
Analysis (BEA) growth factors, recommended by EPA guidance, did not 
contemplate the net effect on emissions accounting where there is an 
operational emissions bank. Since most states in the nation do not have 
approved emissions bank, this was not an issue of widespread concern or 
discussion. Pennsylvania's use of the BEA growth factors and the 
operation of an emissions bank are both permitted by EPA. The effect of 
the combined use of the BEA growth factors and the operation of the 
emissions bank is, however, uncertain. EPA shall address this issue in 
subsequent air quality plans for Pennsylvania.

III. Creditable Measures

    The control measures described below are creditable toward the rate 
of progress requirements of the Act. Pennsylvania takes emission credit 
toward the 15% requirement through implementation of the following 
required programs: (1) Federal reformulated gasoline, (2) reformulated 
gasoline--nonroad, (3) I/M FMVCP/Tier I, and (4) Stage II vapor 
recovery. Pennsylvania also takes emission credit toward the 15% 
requirement through the implementation of the following programs: (1) 
Federal architectural and industrial maintenance coating regulation 
(national rule), (2) treatment, storage and disposal facility (TSDF) 
controls (hazardous waste rule with air emission reductions), (3) 
autobody refinishing national rule, (4) consumer and commercial 
products national rule, and (5) facility shutdowns/over control.
    Further details regarding EPA's review of the Commonwealth's 
control measures are contained in the TSD for this rulemaking action.

  Summary of Creditable Emission Reductions for the Philadelphia Ozone  
                      Nonattainment Area (tons/day)                     
------------------------------------------------------------------------
         Required reduction for the Philadelphia area            123.64 
------------------------------------------------------------------------
Creditable Reductions:                                                  
  Shutdown credits............................................      1.83
  AIM Coatings Rules..........................................      7.28
  Consumer/Commercial Products................................      6.58
  TSDF Controls...............................................      9.35
  Autobody refinishing........................................      6.30
  Stage II vapor recovery.....................................     17.02
  Federal Reformulated gasoline...............................     26.48
  Reformulated gasoline--nonroad..............................      0.59
  FMVCP (Tier I)..............................................      1.08
  Inspection and Maintenance (I/M)............................     49.74
                                                               ---------
      Total...................................................    126.24
------------------------------------------------------------------------

IV. Conditions for Approval

    EPA has evaluated this submittal for consistency with the Act, 
applicable EPA regulations, and EPA policy. In the March 11, 1997 
proposed rulemaking notice, EPA listed five conditions, which 
Pennsylvania is required to meet, within 12 months of the final 
rulemaking notice, in order to obtain approval of the Philadelphia 15% 
plan and 1990 VOC emission inventory. These conditions are:
    (1) Reconcile the 1990 VOC emissions inventory with all the 
appendices, tables and narratives throughout the 15% document, wherever 
emissions are cited;
    (2) After establishing consistent figures as described in 1) above, 
provide sample calculations for point source 1990, 1990 adjusted, and 
1996 projected emissions showing how each of these figures were 
obtained. The level of documentation must be equivalent to that 
required for approval of a 1990 emissions inventory as described in the 
emission inventory documents at the beginning of this technical support 
document;
    (3) Provide additional documentation for the emissions for those 
sources categories where credit is claimed (shutdowns, TSDFs);
    (4) Provide a written commitment to remodel the I/M program as 
implemented in the Philadelphia

[[Page 31348]]

nonattainment area in accordance with EPA guidance (December 23, 1996 
memo entitled ``Modeling 15% VOC Reductions from I/M in 1999--
Supplemental Guidance); and
    (5) Fulfill the conditions listed in the I/M SIP rulemaking notice 
(proposed October 3, 1996, 61 FR 51638; final rule, January 28, 1997, 
62 FR 4004) and summarized here as: (a) geographic coverage and program 
start dates, (b) program evaluation, (c) test types, test procedures 
and emission standards, (d) test equipment specifications, and (e) 
motorist compliance enforcement.
    By its April 10, 1997 addendum, Pennsylvania has met conditions 1, 
2, and 3. Although the full amount of emission reduction credit in some 
cases could not be substantiated with the Pennsylvania documentation, 
EPA is satisfied that the documentation supports the position that the 
amount of credits being approved now by EPA is adequately verified. The 
emission reductions from the enhanced I/M program that is subject to 
the National Highway Systems Designation Act with its extended 
deadlines are required in order for the required 15% emission reduction 
to be achieved in the Philadelphia nonattainment area. Under the 
National Highway Systems Designation Act of 1995, Pennsylvania's 
enhanced I/M program is receiving a conditional interim approval. As 
such, EPA can, at best, propose conditional interim approval of the 
Philadelphia 15% plan. In its April 10, 1997 letter, Pennsylvania 
agreed to meet conditions 4 and 5 that pertain to I/M within the 
required time frames.
    As conditions 4 and 5 remain unfulfilled, EPA cannot grant full 
approval of the Philadelphia 15% rate-of-progress plan under section 
110(k)(3) and Part D of the Clean Air Act. Instead, EPA is granting 
conditional interim approval of this SIP revision under section 
110(k)(4) of the Act, because the Commonwealth must meet the specified 
conditions and supplement its submittal to satisfy the requirements of 
section 182(b)(1) of the Act regarding the 15 percent rate-of-progress 
plan, and because the Commonwealth must supplement its submittal and 
demonstrate it has achieved the required emission reductions. In 
addition, EPA is approving the 1990 VOC base year emissions inventory 
for the Philadelphia ozone nonattainment area, submitted with the 15% 
plan on September 27, 1996, with the exception of the revisions to the 
emissions for USX--Fairless (Bucks County) that were previously 
approved by EPA (April 9, 1996, 61 FR 15709). EPA is not taking any 
rulemaking action regarding the contingency plan submitted by 
Pennsylvania in response to the requirement of section 172(c)(9) of the 
Act. The contingency plan will be the subject of a separate rulemaking 
notice. EPA is also not taking any rulemaking action at this time with 
regard to the 1990 NOX emission inventory submitted with the 
September 1996 15% plan. The 1990 NOX emission inventory 
will also be the subject of a separate rulemaking notice.
    The Commonwealth submitted the required written commitment to EPA 
on April 10, 1997. In addition, the Commonwealth submitted additional 
documentation to fully satisfy conditions 1 through 3 and the necessary 
written commitment to complete condition 4 in the time frame required.
    The remaining unsatisfied conditions or portions of conditions must 
be satisfied by June 9, 1998.

Final Action

    EPA is granting conditional interim approval of the Philadelphia 
15% plan and approval of the 1990 VOC emission inventory as a revision 
to the Pennsylvania SIP. By today's action, EPA is granting approval to 
emission credits for the Philadelphia 15% plan on an interim basis, 
pending verification of the enhanced I/M Program's performance, 
pursuant to section 348 of the NHSDA. This interim approval of the 15% 
plan will expire at the end of the 18 month period, and will be 
replaced by appropriate EPA action based on the evaluation EPA receives 
concerning the program's performance. If the evaluation indicates a 
shortfall in emission reductions compared to the remodeling that the 
15% plan is conditioned on, the Commonwealth will need to find 
additional emission credits. Failure of the Commonwealth to make up for 
an emission shortfall from the enhanced I/M program may subject the 
Commonwealth to sanctions and imposition of a Federal Implementation 
Plan. EPA has already approved the Pennsylvania enhanced I/M program on 
a conditional interim basis (January 28, 1997, 62 FR 4004). This 
approval of the Pennsylvania enhanced I/M program was taken under 
section 110 of the Act and, although the credits provided by this 
program may expire, the approval of the I/M regulations does not 
expire. As explained above, the credits provided by the enhanced I/M 
program on an interim basis for the 15% plan may be adjusted based on 
EPA's evaluation of the enhanced I/M program's performance.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, EPA 
certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-State 
relationship under the Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).
    Conditional approvals of SIP submittals under section 110 and 
subchapter I, part D of the Act do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the federal SIP approval does not impose any new 
requirements, EPA certifies that it does not have a significant impact 
on any small entities affected. Moreover, due to the nature of the 
federal-state relationship under the Act, preparation of a flexibility 
analysis would constitute federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA

[[Page 31349]]

to base its actions concerning SIPs on such grounds. Union Electric Co. 
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new federal requirement.
    Therefore, EPA certifies that this disapproval action does not have 
a significant impact on a substantial number of small entities because 
it does not remove existing requirements nor does it substitute a new 
federal requirement.
    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.
    Under section 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 8, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action, pertaining to the final conditional 
interim approval of the 15% plan for the Pennsylvania portion of the 
Philadelphia ozone nonattainment area and the approval of the 1990 VOC 
emission inventory (with the exception of the revisions to the 
inventory of emissions for selected sources at USX--Fairless) for the 
same area, may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Ozone, Reporting and record keeping requirements.

    Dated: May 30, 1997.
W. Michael McCabe,
Regional Administrator, Region III.

    Chapter I, title 40, of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

SUBPART NN--PENNSYLVANIA

    2. Section 52.2026 is amended by adding paragraph (c) to read as 
follows:


Sec. 52.2026  Conditional Approval.

* * * * *
    (c) The Commonwealth of Pennsylvania's September 12, 1996 submittal 
for the 15 Percent Rate of Progress Plan (15% plan) for the 
Pennsylvania portion of the Philadelphia ozone nonattainment area, is 
conditionally approved based on certain contingencies, for an interim 
period. The condition for approvability is as follows:
    Pennsylvania must meet the conditions listed in the January 28, 
1997 conditional interim Inspection and Maintenance Plan (I/M) 
rulemaking notice, remodel the I/M reductions using the EPA guidance 
memo: ``Modeling 15 Percent VOC Reductions from I/M in 1999--
Supplemental Guidance'', memorandum from Gay MacGregor and Sally 
Shaver, dated December 23, 1996.
    3. Section 52.2036 is amended by adding paragraph (i) to read as 
follows:


Sec. 52.2036  1990 Base year Emission Inventory

* * * * *
    (i) The 1990 VOC emission inventory for the Philadelphia ozone 
nonattainment area, submitted on September 12, 1996 by Pennsylvania 
Department of Environmental Protection, is approved, with the exception 
of the revisions to the emission inventory for those sources at United 
States Steel--Fairless that were approved in Sec. 52.2036 (b) on April 
9, 1996.

[FR Doc. 97-14987 Filed 6-6-97; 8:45 am]
BILLING CODE 6560-50-P