[Federal Register Volume 63, Number 179 (Wednesday, September 16, 1998)]
[Rules and Regulations]
[Pages 49434-49436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24731]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 122-4078c; FRL-6160-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Pennsylvania; Interim Final Determination that 
Pennsylvania Continues to Correct the Deficiencies of its Enhanced I/M 
SIP Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: Elsewhere in today's Federal Register, EPA has published a 
direct final rule granting full conditional approval of the 
Commonwealth of Pennsylvania's enhanced motor vehicle inspection and 
maintenance (I/M) program, under section 348 of the National Highway 
System Designation Act of 1995 (NHSDA) and section 110 of the Clean Air 
Act (CAA). Based on the approval, EPA is making an interim final 
determination, by this action, that the Commonwealth has continued to 
correct the deficiency prompting the original disapproval of the 
Pennsylvania enhanced I/M SIP revision. This action will defer the 
application of the offset sanction which would have been implemented on 
August 29, 1998, and defers the future application of the highway 
sanction. Although this action is effective upon publication, EPA will 
take comment on this interim final determination as well as EPA's 
approval of the Commonwealth's submittal. EPA will publish a final 
action taking into consideration any comments received on EPA's direct 
final rule and this interim final action.

DATES: Effective dates September 16, 1998.

COMMENTS: Comments must be received by October 16, 1998.

ADDRESSES: Comments should be mailed to Marcia Spink, Associate 
Director, Office of Air Programs, Mail code 3AP20, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street--14th Floor, Philadelphia, Pennsylvania 19103; and at 
the Pennsylvania Department of Environmental Protection, Bureau of Air 
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 
17105.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 814-2176, at the EPA 
Region III address above; or via e-mail at [email protected]. While 
information may be requested via e-mail, comments must be submitted in 
writing to the EPA Region III address above.

SUPPLEMENTARY INFORMATION:

I. Background

Pennsylvania's March 1996 I/M SIP Revision Approval Status

    By means of an April 13, 1995 letter, EPA notified Pennsylvania 
that the conditional approval of the Pennsylvania enhanced I/M SIP 
revision, approved in August of 1994, had been converted to a 
disapproval (60 FR 47084). The letter triggered the 18-month time clock 
for the mandatory application of sanctions under section 179(a) of the 
CAA. That 18-month sanctions clock expired on October 13, 1996. On 
March 22, 1996, the Commonwealth of Pennsylvania submitted an enhanced 
I/M SIP revision to EPA, requesting action under the NHSDA of 1995 and 
the CAA. On June 27, 1996 and July 29, 1996, supplements to the March 
22, 1996 SIP revision were officially submitted to EPA.
    On October 3, 1996, EPA proposed in the Federal Register (61 FR 
51598) conditional approval, on an interim basis for an 18-month 
period, of a SIP submitted by the Commonwealth in March 1996. That 
proposed SIP approval was granted under authority of the National 
Highway Systems Designation Act of 1995 (NHSDA) and the Clean Air Act 
(CAA). EPA simultaneously issued an interim final determination action 
in the Federal Register (61 FR 51598), which deferred the imposition of 
the 2:1 offset sanction upon new or modified sources seeking permits 
under section 173 of the CAA. The 2:1 offsets sanction would otherwise 
have been automatically imposed upon Pennsylvania on October 13, 1996. 
Since EPA had received a SIP submittal from the Commonwealth of 
Pennsylvania for its enhanced I/M program in March of 1996, and since 
EPA proposed approval of that SIP revision on October 3, 1996, EPA 
believed the October 3, 1996 interim final determination to defer 
sanctions was justified. EPA concluded at that time that it was more 
than likely than not that Pennsylvania had corrected the deficiency 
which had initiated the sanctions clock, and therefore, did not believe 
sanctions were warranted simply because EPA had insufficient time to 
complete its final rulemaking action to approve the Commonwealth's 
March 1996 I/M program SIP revision. On January 28, 1997, EPA issued in 
the Federal Register, final interim conditional approval of the 
Commonwealth's March 1996 SIP revision (62 FR 4004).
    On November 13, 1997, February 24, 1998, and August 21, 1998, 
Pennsylvania submitted formal revisions to its enhanced I/M program 
SIP. The purpose of these SIP revisions was to remedy deficiencies 
identified by EPA in its January 28, 1997 (62 FR 4004) interim 
conditional approval of Pennsylvania's enhanced I/M program SIP. It 
also served to transmit

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Pennsylvania's demonstration of the effectiveness of its decentralized 
testing program (compared to a centralized program) in achieving the 
emissions reductions credits claimed by Pennsylvania in its SIP, 
required under section 348 of the National Highway Systems Designation 
Act.
    On August 11, 1998, EPA signed a direct final rulemaking action to 
approve the Commonwealth's November 1997 and February 1998 SIP 
revisions, which addressed several of the deficiencies identified by 
EPA in its January 28, 1997 (62 FR 51638) interim conditional approval 
of the Commonwealth's enhanced I/M SIP.

EPA's Current Rulemaking Actions

    In the Final Rules section of today's Federal Register, EPA has 
taken direct final rulemaking action to approve the Commonwealth's 
NHSDA network effectiveness demonstration, and to approve the 
Commonwealth's SIP revisions submitted to remedy the deficiencies 
identified by EPA in its January 28, 1997 interim conditional approval 
(61 FR 51638). EPA simultaneously issued, in the Proposed Rules section 
of today's Federal Register, a document proposing to take the same 
action upon the Commonwealth's SIP revision in the event EPA receives 
adverse comments on the direct final rule.
    EPA believes that, as a result of today's related rulemaking 
actions, that it is more likely than not that the March 22, 1996 
enhanced I/M SIP revision, as supplemented on June 27, 1996, July 29, 
1996, November 1, 1996, November 13, 1997, February 24, 1998, and 
August 21, 1998 (hereafter referred to as ``the I/M SIP revision''), 
continues to remedy the SIP deficiency triggering the sanctions clock 
for the duration of EPA's rulemaking process on this I/M SIP revision. 
This interim determination will not halt or reset the sanctions 
deadline, but will continue to defer the implementation of sanctions 
until either: EPA's January 28, 1998 conditional approval is converted 
to a disapproval, or the Commonwealth's enhanced I/M SIP is fully 
approved.
    Today EPA is also providing the public with an opportunity to 
comment on this interim final determination. If, based on any comments 
received by EPA upon this interim final determination action and any 
comments on EPA's approval of the Commonwealth's I/M SIP revision, EPA 
determines that the SIP revision is not approvable and this final 
action was inappropriate, EPA will take further action to disapprove 
the Commonwealth's I/M SIP revision. If EPA's approval of the 
Pennsylvania I/M SIP revision is not finalized, then sanctions would be 
applied as required under section 179(a) of the CAA and 40 CFR 52.31.

II. EPA Action

    Based on the approval set forth elsewhere in today's Federal 
Register, EPA believes that it is more likely than not that the 
Commonwealth has corrected the deficiencies that prompted the original 
disapproval of the Pennsylvania enhanced I/M SIP for which the April 
13, 1995 finding of failure to submit was issued. Therefore, EPA 
concludes that sanctions should continue to be stayed for the duration 
of Pennsylvania's conditional SIP approval.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP 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

    Because EPA has preliminarily determined that the March 22, 1996 
Pennsylvania I/M SIP revision is conditionally approvable, relief from 
future sanctions should be provided as quickly as possible. Therefore, 
EPA is invoking the good cause exception under the Administrative 
Procedure Act (APA) in not providing an opportunity for comment before 
this action takes effect.1 5 U.S.C. 553(b)(B). The EPA 
believes that notice-and-comment rulemaking before the effective date 
of this action is impracticable and contrary to the public interest. 
The EPA has reviewed the Commonwealth's March 1996 I/M SIP revision 
(including all subsequent SIP revisions). Through this interim final 
determination action, the Agency believes that it is more likely than 
not that the Commonwealth has continued to correct the deficiency for 
which the sanctions clock was started (i.e., failure on the part of the 
Commonwealth's to have an approved enhanced I/M SIP under sections 182 
and 184 of the Clean Air Act).
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    \1\ As previously noted, however, by this action EPA is 
providing the public with a chance to comment on EPA's determination 
after the effective date and EPA will consider any comments received 
in determining whether to reverse such action.
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    Therefore, it is not in the public interest to initially apply 
sanctions when the Commonwealth has most likely corrected the 
deficiency that triggered the sanctions clock. Moreover, it would be 
impracticable to go through notice-and-comment rulemaking on a finding 
that the Commonwealth has corrected the deficiency prior to the 
rulemaking approving the Commonwealth's enhanced I/M SIP revision. 
Therefore, EPA believes that it is necessary to use the interim final 
rulemaking process to defer sanctions while EPA completes its 
rulemaking process on the approvability of the Commonwealth's I/M SIP 
revision. In addition, EPA is invoking the good cause exception to the 
30-day notice requirement of the APA because the purpose of this notice 
is to relieve a restriction. See 5 U.S.C. 553(d)(1).

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review. The final rule is not subject 
to E.O. 13045, entitled ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' because it is not an ``economically 
significant'' action under E.O. 12866.

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that

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imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments. If the 
mandate is unfunded, EPA must provide to the Office of Management and 
Budget, in a separately identified section of the preamble to the rule, 
a description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, representatives of Indian tribal governments 
``to provide meaningful and timely input in the development of 
regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this rule.

D. 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. EPA's approval action today maintains conditional approval 
status, granted by EPA in January 1997. Approval of a SIP submittal 
under section 110 and subchapter I, part D of the CAA does not create 
any new requirements but simply approves requirements that a 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 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)).

E. 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 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.

F. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

G. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this direct final approval action for Pennsylvania's 
enhanced I/M SIP revision must be filed in the United States Court of 
Appeals for the appropriate circuit by November 16, 1998. Filing a 
petition for reconsideration by the Administrator of this interim final 
determination does not affect the finality of this rule pertaining to 
the Pennsylvania enhanced I/M SIP for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
may be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.

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

    Dated: August 28, 1998.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 98-24731 Filed 9-15-98; 8:45 am]
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