[Federal Register Volume 66, Number 165 (Friday, August 24, 2001)]
[Proposed Rules]
[Pages 44571-44574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21433]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA117-4131; FRL-7043-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; One-Hour Ozone Attainment Demonstration Plan for the 
Philadelphia-Wilmington-Trenton Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rule.

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SUMMARY: On December 16, 1999, EPA proposed approval of the attainment 
demonstration plan submitted by the Pennsylvania Department of 
Environmental Protection (PADEP) for the Philadelphia-Wilmington-
Trenton severe ozone nonattainment area. Among other things, EPA 
proposed approval of this SIP only if the Commonwealth of Pennsylvania 
submitted revised motor vehicle emissions budgets reflecting the 
benefits from the Tier 2/Sulfur rule and various enforceable 
commitments including a commitment to perform a mid-course review of 
the attainment demonstration. In this rulemaking, EPA is proposing to 
approve State Implementation Plan (SIP) revisions submitted by PADEP. 
These revisions satisfy the December 16, 1999 proposed rule's 
requisites for submittal of an enforceable commitment relating to the 
mid-course review and the need to revise the motor vehicle emissions 
budgets to reflect the benefits of the Tier 2/Sulfur rule. The intended 
effect of this proposed action is to supplement our December 16, 1999 
proposed approval by opening a comment period on the enforceable 
commitment to a mid-course review and the revised motor vehicle 
emissions budgets. This action is being taken in accordance with the 
Clean Air Act.

DATES: Written comments must be received on or before September 24, 
2001.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, 
Air Quality Planning and Information Services, Mailcode 3AP21, 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, Philadelphia, Pennsylvania 19103; 
and Pennsylvania Department of Environmental Protection, Bureau of Air 
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 
17105.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179. Or 
by e-mail at [email protected]. Please note that while 
questions may be posed via telephone and e-mail, formal comments must 
be submitted, in writing, as indicated in the ADDRESSES section of this 
document.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', 
``us'', or ``our'' are used we mean EPA.

I. Background

A. Previous Proposed Actions on the Attainment Demonstration SIP

    On December 16, 1999 (64 FR 70428), we published a notice of 
proposed rulemaking (NPR) proposing approval of the attainment 
demonstration SIP revision submitted by the Commonwealth of 
Pennsylvania (the Commonwealth) for the Philadelphia-Wilmington-Trenton 
severe ozone nonattainment area (the Philadelphia area). The 
Philadelphia area is classified as severe nonattainment for ozone and 
its attainment date is 2005. Our approval was contingent upon certain 
actions by the Commonwealth for the Philadelphia area. These actions 
were that the Commonwealth had to adopt and submit the following: (1) 
Adequate motor vehicle emissions budgets including the benefits of the 
Tier 2/Sulfur rule (65 FR 6698, February 10, 2000); and (2) various 
enforceable commitments including one to perform a mid-course review of 
the attainment demonstration.
    On December 16, 1999, EPA proposed approval of the attainment 
demonstrations for ten ozone nonattainment areas in the eastern United 
States (64 FR 70317). On July 28, 2000, we published a supplemental 
notice of proposed rulemaking (SNPR) on these attainment demonstrations 
(65 FR 46383). The comment period established by the July 28, 2000 SNPR 
concluded on August 28, 2000. In that SNPR, we clarified and expanded 
on two issues relating to the motor vehicle emissions budgets for the 
SIP revisions subject to all of the December 16, 1999

[[Page 44572]]

proposed actions. In the July 28, 2000 SNPR, we reopened the comment 
period to take comment on these two issues and, in the case of the 
Commonwealth's SIP for the Philadelphia area, to allow comment on all 
materials that were in the docket for the proposed action including 
those placed in the docket close to or after the conclusion of the 
initial comment period which closed on February 14, 2000. In general, 
the SNPR identified these materials as consisting of motor vehicle 
emissions budgets and revised or additional commitments submitted by 
the States (65 FR at 46387, July 28, 2000). On February 25, 2000 (prior 
to July 28, 2000 but after the February 14, 2000 close of the original 
comment period), PADEP submitted revised motor vehicle emissions 
budgets (which did not reflect the benefits from EPA's Tier 2/Sulfur 
rule) as well as enforceable commitments for its portion of the 
Philadelphia area. On May 31, 2000, EPA notified the Commonwealth that 
the motor vehicle emissions budgets submitted on February 25, 2000 were 
adequate (see 65 FR 36438, June 8, 2000). That adequacy finding 
included a condition precluding the use of the emission reduction 
benefits from the Tier 2/Sulfur rule in conformity determinations, 
since those budgets did not include the Tier 2/Sulfur benefits.
    As we explained in the July 28, 2000 SNPR and reiterate here, we 
are proposing that the 2005 attainment motor vehicle emissions budgets 
that we are proposing to approve with the attainment demonstration will 
be effective for conformity purposes only until revised attainment 
motor vehicle emissions budgets developed using MOBILE6 or including 
additional measures to fill a shortfall are submitted and found 
adequate. The revised MOBILE6 attainment motor vehicle emissions 
budgets will then apply for conformity purposes as soon as we find them 
adequate. We are proposing to limit the duration of our approval in 
this manner because we are proposing to approve the attainment 
demonstration and its associated motor vehicle emissions budgets only 
because the Commonwealth has committed to revise them with MOBILE6, or 
if shortfall measures are submitted. The Commonwealth submitted the 
requisite commitment to revise these motor vehicle emissions budgets 
using MOBILE6 within one year of the issuance of that model, or if 
shortfall measures are submitted. This commitment was subject to the 
comment period established in the July 28, 2000 SNPR (65 FR 46383).

B. The Commonwealth's Additional Submissions of Revisions or Other 
Material Relevant to the Attainment Demonstration After August 28, 2000

    On July 19, 2001, the Commonwealth submitted a SIP revision with 
revised attainment motor vehicle emissions budgets for the Pennsylvania 
portion of the Philadelphia area. These motor vehicle emissions budgets 
are for the year 2005 and incorporate the benefits of the Federal Tier 
2/Sulfur rule. The Commonwealth submitted these motor vehicle emissions 
budgets in response to our proposed action on the Commonwealth's 
attainment demonstration SIP for the Philadelphia area ( 64 FR 70428, 
December 16, 1999). As previously explained, in that proposal we 
required that the benefits from the Federal Tier 2/Sulfur rule be 
incorporated into the 2005 attainment motor vehicle emissions budgets 
because the attainment demonstration for the Philadelphia area relies 
upon the benefits of this Federal rule.
    In this July 19, 2001 submittal, the Commonwealth also included an 
amendment to the enforceable commitments it previously had submitted as 
provided in our December 16, 1999 proposed action. This amendment 
relates to the commitment by the Commonwealth to perform a mid-course 
review. The amendment clarifies that the Commonwealth will submit the 
mid-course review to EPA by December 31, 2003. In our December 16, 1999 
NPR we proposed to approve the attainment demonstration if the 
Commonwealth committed to conduct and submit a mid-course review to EPA 
by December 31, 2003 (64 FR 70428 at 70442, December 16, 1999). The 
July 19, 2001 submittal also contains material relating to reasonably 
available control measures which will be the subject of a separate 
proposed rulemaking.

C. The Motor Vehicle Emissions Budgets Contained Within the July 19, 
2001 Revision

    The July 19, 2001 revision establishes the 2005 attainment year 
motor vehicle emissions budgets for the Pennsylvania portion of the 
Philadelphia area as 60.18 tons per day of volatile organic compounds 
(VOC) and 77.46 tons per day of nitrogen oxides ( NOX).

D. The Relationship of the Adequacy Review Process to the Motor Vehicle 
Emissions Budgets Incorporating the Tier 2/Sulfur Rule Benefits

    On March 2, 1999, the D.C. Circuit Court ruled that budgets 
contained in submitted control strategy SIPs cannot be used for 
conformity determinations until EPA has affirmatively found them 
adequate. The relationship between determining the adequacy of motor 
vehicle emissions budgets in a SIP versus approval of a SIP with motor 
vehicle emission budgets is delineated in the EPA's May 14, 1999 memo 
titled ``Conformity Guidance on Implementation of March 2, 1999 
Conformity Court Decision.'' Control strategy SIPs include rate-of-
progress plans and attainment demonstrations. Affirmative adequacy 
determinations allow for the use of motor vehicle emissions budgets in 
submitted rate-of-progress plan SIPs and attainment demonstration SIPs 
for transportation conformity purposes . Motor vehicle emission budgets 
are actually approved, or disapproved, at the time EPA takes final 
action to approve or disapprove the SIP itself.
    PADEP's July 19, 2001 submittal of revised 2005 motor vehicle 
emissions budgets is posted on EPA's conformity Web site (http://www.epa.gov/oms/transp/conform/currsips.htm) noting that EPA is taking 
comment on the adequacy and approvability of these budgets via 
rulemaking. We are forgoing the standard adequacy process because by 
October 15, 2001, we are currently required under a consent decree to 
sign either: (1) A final rule fully approving the attainment 
demonstration for the Philadelphia area, or (2) an action proposing a 
Federal implementation plan to remedy any gaps in the attainment 
demonstration. We have reviewed the 2005 motor vehicle emission budgets 
submitted by the Commonwealth on July 19, 2001. Based on our review, we 
conclude that the revised motor vehicle emissions budgets meet the 
adequacy criteria in section 93.118 of the Transportation Conformity 
Regulations, and we propose to find the budgets adequate as well as to 
approve them. If we sign a final action approving the attainment 
demonstration for the Philadelphia area by the date specified in the 
consent decree, such an action will have the effect of approving these 
motor vehicle emissions budgets into the SIP along with the attainment 
demonstration negating the need for a separate finding of adequacy.
    We are seeking public comments on this proposed rule including the 
adequacy of the motor vehicle emissions budgets and will accept such 
comments provided they are submitted by as specified in the DATES and 
ADDRESSES sections of this document. We will not hold a separate 
comment period on the adequacy of these budgets through the conformity 
web process. We will address all comments in our final rulemaking on 
the attainment

[[Page 44573]]

demonstration. Because EPA's final rule on the 2005 attainment 
demonstration will, defacto, determine the approvability and adequacy 
of that SIP's motor vehicle emissions budgets, we will not publish a 
separate Federal Register notice announcing our adequacy findings.

E. The Submitted Motor Vehicle Emissions Budgets and the Prior 
Restrictions on the Use of the Benefits of Federal Tier 2/Sulfur Rule 
in Conformity Determinations

    The December 16, 1999 NPR allowed States to submit motor vehicle 
emissions budgets that did not reflect the benefits of EPA's Tier 2/
Sulfur rule. In the NPR, we explained that conformity analyses in the 
Philadelphia area could begin including Tier 2/Sulfur program benefits 
once EPA's Tier 2/Sulfur rule was promulgated, provided that the 
attainment demonstration SIP and associated motor vehicle emissions 
budgets include the Tier 2/Sulfur benefits. For an area that requires 
all or some portion of the Tier 2/Sulfur benefits to demonstrate 
attainment but have not yet included the benefits in the motor vehicle 
emissions budgets, in this NPR we noted that our adequacy finding will 
include a condition that conformity determinations may not take credit 
for Tier 2/Sulfur until the SIP budgets are revised to reflect Tier 2/
Sulfur benefits.
    As explained above, on February 25, 2000, the Commonwealth 
submitted 2005-year motor vehicle emissions budgets for its portion of 
the Philadelphia area that did not include the benefits from the Tier 
2/Sulfur rule. The 2005-year motor vehicle emissions budgets applied to 
two separate types of control strategy SIP revisions: (1) Rate-of-
progress and (2) attainment. On May 31, 2000, EPA notified the 
Commonwealth that the motor vehicle emissions budgets submitted on 
February 25, 2000 were adequate (see 65 FR 36438, June 8, 2000). That 
adequacy finding included a condition precluding the use of the 
emission reduction benefits from the Tier 2/Sulfur rule in conformity 
determinations.
    The effect of today's proposed action on the 2005-year attainment 
motor vehicle emissions budgets submitted by PADEP on July 19, 2001 
(which now reflect the Tier 2/Sulfur rule benefits), should we take 
final action to find them adequate and approve them, would be to 
supplant the attainment motor vehicle emissions budgets submitted on 
February 25, 2000. If approved, the motor vehicle emissions budgets in 
the Commonwealth's July 19, 2001 SIP revision would be the budgets for 
the Pennsylvania potion of the Philadelphia area to which all future 
transportation plans and transportation improvement programs (TIPs) 
must conform. Approval of the July 19, 2001 submittal's budgets would 
remove the restriction on the use of the benefits from the Federal Tier 
2/Sulfur rule when demonstrating transportation plans and TIPs conform 
to the motor vehicle emissions budgets in the attainment demonstration 
SIP for the Philadelphia area. This proposed action is intended to have 
no effect on the rate-of-progress motor vehicle emissions budgets for 
2005. Action on the rate-of-progress plans for the Pennsylvania portion 
of the Philadelphia area will be the subject of a separate rulemaking 
action.

F. Trigger to Redetermine Conformity Within 18-Months Under Section 
93.104 of the Conformity Rule

    Our conformity rule establishes the frequency by which 
transportation plans and transportation improvement programs must be 
found to conform to the SIP and includes trigger events tied to both 
submittal and approval of a SIP (40 CFR 93.104(e)). Both initial 
submission and approval can trigger a redetermination of conformity 
because it is not uncommon for the SIP to change between initial 
submission and final approval (61 FR 36112, July 9, 1996). Our proposed 
action, should it become final, will have the effect of approving motor 
vehicle emissions budgets for the attainment demonstration that are 
substantively different than those initially submitted on February 25, 
2000. We are providing advance notice to affected transportation 
planning agencies that a final approval of the budgets in the July 19, 
2001 SIP revision will require a redetermination that existing 
transportation plans and TIPs conform within 18 months of the date of 
any such approval of these motor vehicle emissions budgets.

II. Re-opening of the Public Comment Period

    We are reopening the comment period for the Commonwealth's 
attainment demonstration SIP revision for the Philadelphia area to 
address the additional information that has been placed in the docket 
close to or after the conclusion of the last comment period established 
by the July 28, 2000 SNPR that concluded on August 28, 2000. These 
materials consist of actions that in the December 16, 1999 notice of 
proposed rulemaking discussed above EPA identified as necessary for 
approval of the attainment demonstration for the Pennsylvania portion 
of the Philadelphia area. Specifically these amendments are the revised 
motor vehicle emissions budgets and the amendment to the enforceable 
commitment for a mid-course review submitted by the Commonwealth on 
July 19, 2001.
    We are proposing to approve and find adequate for conformity 
purposes the motor vehicle emissions budgets and revised enforceable 
commitment, which were submitted on July 19, 2001, as changes to the 
Commonwealth's attainment demonstration SIP for the Philadelphia area. 
We are soliciting public comment on the issues discussed in this 
document. Any comments received during the comment period will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the ADDRESSES section of 
this document.

III. Proposed Action

    EPA is proposing to approve the revisions to the attainment plan 
SIP for the Philadelphia-Wilmington-Trenton severe ozone nonattainment 
area submitted by the Commonwealth of Pennsylvania on July 19, 2001. 
Those revisions consist of motor vehicle emissions budgets which 
reflect the Tier 2/Sulfur rule and the enforceable commitment to submit 
a mid-course review by December 31, 2003.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 
This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995

[[Page 44574]]

(Public Law 104-4). This proposed rule also does not have a substantial 
direct effect on one or more Indian tribes, on the relationship between 
the Federal Government and Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000), nor will it have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999), because it merely proposes to approve a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant. In reviewing SIP submissions, EPA's role is to approve 
state choices, provided that they meet the criteria of the Clean Air 
Act. In this context, in the absence of a prior existing requirement 
for the State to use voluntary consensus standards (VCS), EPA has no 
authority to disapprove a SIP submission for failure to use VCS. It 
would thus be inconsistent with applicable law for EPA, when it reviews 
a SIP submission, to use VCS in place of a SIP submission that 
otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this proposed rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. EPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of the rule in accordance with the 
``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings' issued under the executive 
order. This supplemental proposed rule on the Commonwealth's attainment 
demonstration for the Philadelphia area to include motor vehicle 
emission budgets which reflect the benefits of the Federal Tier 2/
Sulfur rule and enforceable commitment to a mid-course review as 
required by EPA's December 16, 1999 proposed rulemaking does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: August 16, 2001.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 01-21433 Filed 8-23-01; 8:45 am]
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